Making an Arrest

I. Misdemeanor arrest rule: Crime committed in the officer’s presence.

A police officer may arrest a person for a misdemeanor offense if the officer has probable cause to believe an offense is being committed in the officer’s presence.¹ Probable cause for a misdemeanor arrest exists if the facts known to the officer at the time would lead a person of reasonable caution to believe an offense is being committed.² The facts known to the officer must be facts obtained through the officer’s observations. Such observations include facts perceived by the officer through his or her senses, including sight, smell and hearing.³ To be sufficient to establish probable cause, the officer’s observations must indicate that a misdemeanor offense is occurring in the officer’s presence.

In addition, a misdemeanor arrest must be made at the time of the offense or within a reasonable time after the offense.⁴ However, a delay in making the arrest may be justified by the officer’s continued attempt to make the arrest and exigent circumstances.⁵ Exigent circumstances justifying a delay in making the arrest include the time elapsed while in pursuit of the suspect, or the time spent requesting assistance in the investigation or arrest.⁶ For example, the Court of Appeals has found a two to three hour delay in making an arrest reasonable “when the officer was called upon to investigate a multiple-vehicle accident in which nineteen people were

injured.”⁷ However, the officer may not attend to matters other than the investigation and arrest during the delay. For example, when an officer fails to make an immediate arrest, goes about other business and then returns to make the arrest thirty to forty minutes later, that delay is unreasonable.⁸ Thus, to be reasonable, the delay must be related to the arrest. Moreover, the length of the delay must be reasonably related to the reason for the delay. In other words, the length of the delay must not exceed a reasonable amount of time to accomplish the purpose for the delay.⁹

Police-team qualification

New Mexico courts recognize some exceptions or qualifications to the misdemeanor arrest rule. For example, New Mexico recognizes the “police team qualification,” which allows an arrest by an officer who did not observe the offense being committed, but received information about the offense from another officer who did observe the offense.¹⁰ The police team qualification has three requirements. First, the misdemeanor offense must be committed in the presence of at least one police officer.¹¹ Second, the officer who observes the offense must communicate promptly to another officer information about the offense and the offender.¹² Third, the second officer must make an arrest within a reasonable time from receiving the information from the first officer.¹³

Our courts have recognized two circumstances under which the police-team qualification applies. The police-team qualification applies in situations in which an officer must seek assistance from another officer to prevent danger to the officer or flight of the suspect.¹⁴ For example, when an officer is assaulted while attempting to stop a fight and the attacker flees into a crowd, a second officer who arrives to assist the first officer may arrest the suspect, even though the second officer did not observe the assault.¹⁵ The police-team qualification also applies to situations in which two or more officers are working together on an investigation.  In such a case, the arresting officer may rely on observations made by other officers to establish probable cause to believe the misdemeanor occurred in an officer’s presence.¹⁶

DWI arrests.

“[T]he misdemeanor arrest rule does not apply to DWI investigations.”¹⁷ Because of the danger to the public created by driving while intoxicated, and because the Legislature has designated DWI as both a misdemeanor and a felony, DWI is treated as a felony for the purposes of determining the validity of a warrantless arrest.¹⁸ Consequently, an officer need not observe the offense of DWI before making a warrantless arrest, as required by the misdemeanor arrest rule.¹⁹ Rather, an officer may make the arrest based on probable cause and exigent circumstances.²⁰

Certain domestic violence arrests.

Section 31-1-7(A) provides an exception to the misdemeanor arrest rule in some domestic violence investigations.²¹ That statute provides that an officer may make a warrantless arrest “when the officer is at the scene of a domestic disturbance and has probable cause to believe that the person has committed an assault or a battery upon a household member.”²² Such an arrest does not require the officer to observe the crime being committed. Rather, an officer may make the arrest based on articulable facts establishing probable cause that the suspect has committed the offense.²³ Such an arrest does not require exigent circumstances in addition to probable cause. The only requirement aside from probable cause is that the officer is “at the scene” of the offense at the time of the arrest.²⁴ That requirement does not demand the officer’s presence at the time of the offense, or the officer’s presence at the exact location of the offense.²⁵ Because the purpose of Section 31-1-7(A) is to enable an officer to ensure the victim’s safety by allowing the officer to arrest an aggressor who is still at the scene of the attack, the statute simply requires that the officer “make the warrantless arrest reasonably close to the scene both spatially and temporally.”²⁶

Arrests for non-jailable minor offenses

Under the Fourth Amendment, an officer may make a warrantless arrest for a non-jailable minor offense based on probable cause, such as the officer’s observation of the crime being committed.²⁷ Under Article II, Section 10 of the state constitution, however, an officer is required to issue a citation for a non-jailable minor offense, unless the officer can articulate legitimate reasons that justify the additional intrusion of an arrest.²⁸ Such reasons may include facts indicating that the suspect is a flight risk, or circumstances that make an arrest necessary in order to abate the proscribed conduct.²⁹

II.  Felony arrest: Probable cause plus exigent circumstances. 

In New Mexico, a warrantless arrest for a felony generally requires probable cause plus exigent circumstances.³⁰ In other words, an officer making a warrantless arrest of a suspect for a felony offense must have probable cause to believe the suspect has committed or is committing the offense, and exigent circumstances must exist to justify the immediate arrest without a warrant.³¹ Probable cause alone is not sufficient. Exigent circumstances that may justify a warrantless search include the possibility of the suspect’s escape during the time it takes to obtain a warrant and the threat to the safety of police officers and others that could occur while a warrant is sought.³² In addition, circumstances that “make it not reasonably practicable to get a warrant” also qualify as exigent circumstances that justify an immediate warrantless arrest.³³ For example, a warrantless arrest is justified when officers have probable cause to believe that the suspect, who has been detained by store security, has committed shoplifting. Under those circumstances, the alternatives to an immediate arrest – continued detention of the suspect or release of the suspect while a warrant is obtained – are not practicable and, therefore, an immediate warrantless arrest is justified.³⁴ Whatever the exigent circumstance claimed, it must be such that it was reasonable for the officer to decide not to seek an arrest warrant.³⁵ 

The amount of time that elapses between the formation of probable cause and the actual arrest can be an indicator of the reasonableness of the decision to forego a warrant. For example, if the officer obtains probable cause to make the arrest and decides to forego the warrant, but does not make the arrest until the next day, the decision to forego the warrant will be deemed unreasonable.³⁶  After all, if the officer can wait a day, then the exigency must not have been very great. Stated differently, an officer may not create an exigency by unreasonably delaying his decision to seek a warrant. On the other hand, our courts recognize that an officer may have reasonable grounds to decide to continue his investigation rather than stop the investigation to seek a warrant.³⁷ Ultimately, the validity of a warrantless arrest is determined on a case by case basis by the reasonableness of the decision to forego a warrant and make an immediate arrest.³⁸

When the arresting officer observes the suspect committing the felony offense, the officer may make the arrest immediately, without a warrant. In such a case, the exigency is presumed.³⁹ Although our courts have not had occasion to further explain this exception for felonies committed in the presence of an officer, it is highly likely that the courts will impose similar requirements as those imposed on warrantless misdemeanor arrests. Those requirements include probable cause based on the officer’s observations, and prompt arrest after observation of the offense. The police-team qualification should also apply to allow an arrest based on information observed by another officer either assisting or collaborating with the arresting officer.⁴⁰

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ENDNOTES

1 State v. Hawkins, 1999-NMCA-126, ¶ 17, 128 N.M. 245, 991 P.2d 989; State v. Almanzar, 2014-NMSC-001, ¶ 13, 316 P.3d 183. Our Supreme Court has suggested that a misdemeanor arrest may also be based on probable cause and exigent circumstances when the offense was not committed in an officer’s presence. See State v. Paananen, 2015-NMSC-031, ¶ 28, 357 P.3d 958.

2 Id. (citing State v. Goss, 1991-NMCA-003, ¶ 17, 111 N.M. 530, 807 P.2d 228); see also State Sanchez, 2001-NMCA-109, ¶¶ 6, 11, 131 N.M. 355, 36 P.3d 446. In Sanchez, the Court held the officer had probable cause to arrest the defendant for DWI based on the officer’s observations that the defendant smelled of alcohol, had bloodshot, watery eyes, and admitted to drinking two beers prior to driving. In so doing, the court explained, “An officer does not have to observe a suspect actually driving in an impaired manner if the officer, based upon all the facts and circumstances, has ‘reasonable grounds to believe that Defendant had been driving while intoxicated’” Sanchez 2001-NMCA-109, ¶ 6, (quoting State v. Jones, 1998-NMCA-076, ¶ 10, 125 N.M. 556, 964 P.2d 117).

3 State v. Salas, 1999-NMCA-099, ¶ 10, 127 N.M. 686, 986 P.2d 482.

4 State v. Warren, 1985-NMCA-095, ¶ 26, 103 N.M. 472, 709 P.2d 194.

5 Id. at ¶ 32.

6 Id.

7 Id. (citing State v. Calanche, 1978-NMCA-007, ¶ 21, 91 N.M. 390, 574 P.2d 1018).

8 Id. at ¶ 33.

9 Id. at ¶¶ 31-33.

10 State v. Lyon, 1985-NMCA-082, ¶ 18, 103 N.M. 305, 706 P.2d 516.

11 Warren, 1985-NMCA-095, ¶ 21.

12 Id. 

13 Id.

14 Id. at ¶¶ 22-23, (citing State v. Marquez, 1985-NMCA-080, ¶¶ 10-13, 103 N.M. 265, 705 P.2d 170).

15 See Marquez, 1985-NMCA-080, ¶¶ 2-13.

16 Warren, 1985-NMCA-095, ¶ 26.

17 City of Santa Fe v. Martinez, 2010-NMSC-033, ¶ 16, 148 N.M. 708, 242 P.3d 275.

18 Id. ¶¶ 13-15.

19 Id. ¶ 16.

20 Id.

21 See NMSA 1978, § 31-1-7(A) (1995); Almanzar, 2014-NMSC-001, ¶ 13.

22 NMSA 1978, § 31-1-7(A) (1995).

23 Almanzar, 2014-NMSC-001, ¶ 16.

24 Id.

25 Id. ¶ 20.

26 Id.

27 Atwater v. City of Lago Vista, 532 U.S. 318, 363 (2001).

28 State v. Rodarte, 2005-NMCA-141, ¶¶ 9, 15, 20, 138 N.M. 668, 125 P.3d 647.

29 See Id. ¶ 8 (citing Atwater, 532 U.S. at 365 (O’Connor, J., dissenting)).

30 Campos v. State, 1994-NMSC-012, ¶ 14, 117 N.M. 155, 870 P.2d 117. In Campos, the New Mexico Supreme Court rejected the federal rule that probable cause, without exigent circumstances, is sufficient for a valid warrantless felony arrest. The Court based its decision on the greater protection against unreasonable searches and seizures and the stronger preference for warrants provided by the New Mexico Constitution than provided by the Fourth Amendment.

31 Id. 

32 Id. ¶ 12, (citing State v. Jones, 1981-NMSC-013, ¶¶ 3-5, 96 N.M. 14, 627 P.2d 409) (exigency created by the suspect’s attempt to leave the area in a car while officers were verifying an anonymous tip); and State v. Garcia, 1983-NMCA-069, ¶¶ 26-27, 100 N.M. 120, 666 P.2d 1267 (exigency implied by the defendant’s attempt to flee).

33 Paananen, 2015-NMSC-031, ¶ 27.

34 Id. ¶ 25.

35 Campos, 1994-NMSC-012, ¶ 14; Paananen, 2015-NMSC-031, ¶ 27.

36 Campos, 1994-NMSC-012, ¶¶ 16-17.

37 Id. ¶ 16.

38 Campos, 1994-NMSC-012, ¶ 14; Paananen, 2015-NMSC-031, ¶ 27.

39 Campos, 1994-NMSC-012, ¶ 14.

40 See supra., p. 153.