State v. Gilligan

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. No. 30,258 10 MARK TEX GILLIGAN, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Stephen Bridgforth, District Judge 14 Gary K. King, Attorney General 15 Santa Fe, NM 16 for Appellee 17 Caren I. Friedman 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 SUTIN, Judge. 1 Defendant appeals his conviction for first offense driving while intoxicated 2 (DWI). We issued a calendar notice proposing to affirm. Defendant has responded 3 with a memorandum in opposition. After due consideration, we affirm. [2] 1 Arrest 2 In this appeal, Defendant has argued that he was arrested without probable 3 cause and that the arrest violated the misdemeanor-arrest rule. Our calendar notice 4 treated these two issues together because we believe that they relate to the same 5 evidence. The misdemeanor-arrest rule requires that the offense be committed in the 6 officer’s presence to justify a warrantless arrest for its violation. See State v. Ochoa, [7] 2008-NMSC-023, ¶ 11 , 143 N.M. 749 , 182 P.3d 130 . Subsequent to our calendar 8 notice, the Supreme Court abolished the misdemeanor-arrest rule for purposes of 9 analyzing the validity of a warrantless arrest for DWI. City of Santa Fe v. Martinez, [10] 2010-NMSC-033, ¶ 16 , ___ N.M. ___, ___ P.3d ___. “Instead, the warrantless arrest 11 of one suspected of committing DWI is valid when supported by both probable cause 12 and exigent circumstances.” Id. 13 “Probable cause exists when the facts and circumstances within the officers’ 14 knowledge, and of which they had reasonably trustworthy information, are sufficient 15 to warrant a man of reasonable caution to believe that an offense has been, or is being, 16 committed.” State v. Duffy, 1998-NMSC-014 , ¶ 69, 126 N.M. 132 , 967 P.2d 807 17 (internal quotation marks and citation omitted). 18 We will not overturn the district court’s ruling on a motion to suppress if it is 19 supported by substantial evidence. State v. Galloway, 116 N.M. 8, 9 , 859 P.2d 476 , [3] 1 477 (Ct. App. 1993), misapplication of federal law recognized in State v. Cardenas- 2 Alvarez, 2001-NMSC-017, ¶ 9 , 130 N.M. 386 , 25 P.3d 225 (recognizing 3 misapplication of federal law, but acknowledging Galloway as “sound approach” 4 under New Mexico Constitution). In making this determination, we review the facts 5 in the light most favorable to the district court’s ruling. Id. Nevertheless, we conduct 6 a de novo review on the ultimate issue concerning the reasonableness of an alleged 7 constitutional violation. State v. Flores, 1996-NMCA-059 , ¶ 6, 122 N.M. 84 , 920 8 P.2d 1038 . 9 In State v. Reger, 2010-NMCA-056 , ___ N.M. ___, 236 P.3d 654 , this Court 10 recently reviewed the type of evidence that could be relied on by an officer 11 investigating a suspected DWI where an officer encounters an intoxicated individual 12 outside of their vehicle. Even where an officer has not personally observed the 13 defendant drink alcohol or actually operate the vehicle, the officer may nonetheless 14 rely on his personal perceptions, including “observation of the circumstances 15 surrounding the presence of the defendant and the vehicle, observation and smells 16 evidencing the defendant’s intoxication, and hearing what the defendant and others 17 say.” Id. ¶ 16; see State v. Greyeyes, 105 N.M. 549, 551-52 , 734 P.2d 789 , 791-92 18 (Ct. App. 1987). [4] 1 Here, Sergeant Renn observed a white pick-up truck traveling above the speed 2 limit, but he did not elect to initiate a stop. [MIO 1] He then received a dispatch 3 indicating that a vehicle matching that description had recently left a bar, with the 4 driver suspected of being intoxicated. [MIO 1] Sergeant Renn located the truck after 5 it had come to a stop. [MIO 1-2] Although nobody was specifically identified as the 6 driver and Defendant was seated in the passenger seat, Defendant informed Officer 7 Gomez that he was the driver, or at least this can rationally be inferred by Defendant’s 8 comments. [MIO 3] Officer Gomez testified that Defendant exhibited signs of 9 intoxication. [MIO 2] Officer Gomez also testified that Defendant told him that 10 Defendant was driving the vehicle 100% of the time. [MIO 3] 11 In light of the totality-of-circumstances approach inherent to the probable cause 12 analysis, we conclude that there was substantial evidence to support the district court’s 13 ruling denying the motion to suppress. Of particular note is Sergeant Renn’s 14 observation of the vehicle being driven, Defendant’s admission to being the driver, 15 and Defendant’s signs of intoxication. We also conclude that there were exigent 16 circumstances to support the arrest. See Martinez, 2010-NMSC-033, ¶ 15 (noting 17 inherent exigencies that justify abolishing misdemeanor-arrest rule). [5] 1 Miranda 2 Defendant also continues to argue that he should have received Miranda 3 warnings prior to being questioned. [MIO 14] In order to establish that an individual 4 is in custody for Miranda purposes, there must be a showing that the individual “lacks 5 the freedom to leave to an extent equal to formal arrest” and is “in an isolated 6 environment completely controlled by law enforcement officials.” State v. Javier M., [7] 2001-NMSC-030, ¶ 18 , 131 N.M. 1 , 33 P.3d 1 (internal quotation marks and citation 8 omitted). 9 Defendant has not provided an adequate factual description of the statements 10 at issue to establish that the district court erred in denying his motion. The district 11 court concluded that the statements to Officer Gomez were made “without being 12 questioned.” [RP 110-11] In addition, we note that questions during traffic stops do 13 not amount to “custodial” interrogation for purposes of Miranda, even though the 14 individual is seized and cannot leave. State v. Sanchez, 2001-NMCA-109, ¶ 22 , 131 15 N.M. 355 , 36 P.3d 446 (applying this rationale in the context of a DWI investigation). 16 Because some of the statements do appear to have taken place after Defendant was 17 taken into custody, i.e., transported to the police station and processed, he would 18 undoubtedly be entitled to Miranda warnings at that time. However, the district court 19 determined that Defendant had received the Miranda warnings at the police station. [6] 1 [RP 111] In other words, the district court determined that, to the extent statements 2 were made at the station, Defendant knowingly, intelligently, and voluntarily waived 3 his constitutional rights under Miranda. See State v. Barrera, 2001-NMSC-014, ¶ 22 , [4] 130 N.M. 227 , 22 P.3d 1177 . In the absence of a specific factual showing rebutting 5 the district court’s determination that the statements were either made in the absence 6 of questioning, prior to custodial interrogation, or made voluntarily after being 7 mirandized, we conclude that Defendant has not established that the district court 8 erred in denying his motion. See State v. Aragon, 1999-NMCA-060, ¶ 10 , 127 N.M. 9 393, 981 P.2d 1211 (noting that there is a presumption of correctness in the rulings or 10 decisions of the district court and the party claiming error bears the burden of showing 11 such error). 12 For the reasons stated in this opinion, we affirm. 13 IT IS SO ORDERED. 14 __________________________________ 15 JONATHAN B. SUTIN, Judge 16 WE CONCUR: 17 ______________________________________ 18 CYNTHIA A. FRY, Chief Judge 19 ______________________________________ 20 JAMES J. WECHSLER, Judge