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                                                                 New Mexico Compilation
                                                               Commission, Santa Fe, NM
                                                              '00'04- 10:02:01 2014.09.25

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-095

Filing Date: July 3, 2014

Docket No. 33,008

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

RONALD SANCHEZ,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Michael E. Vigil, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Sri Mullis, Assistant Attorney General
Albuquerque, NM

for Appellee

Ben A. Ortega
Albuquerque, NM

for Appellant

                                         OPINION

WECHSLER, Judge.

{1}     Defendant Ronald Sanchez was arrested by a Tesuque Pueblo police officer on
property of the Tesuque Pueblo and charged in Santa Fe County Magistrate Court with
aggravated driving while under the influence of intoxicating liquor or drugs (DWI), first
offense, contrary to NMSA 1978, Section 66-8-102 (2010). The officer was cross-
commissioned as a Santa Fe County special deputy sheriff. His salary was paid by the
Tesuque Pueblo Police Department, and it included incremental pay financed from a grant
to assist the department in targeting the motoring public. On appeal to the district court,

                                            1
Defendant was again convicted. He appeals his conviction to this Court, contending that the
district court (1) erred in denying his motion to suppress by holding that the tribal officer
who conducted the arrest was properly cross-commissioned and had authority to arrest
Defendant under the Motor Vehicle Code; and (2) erred in denying Defendant’s defense,
pursuant to NMSA 1978, Section 66-8-137(B) (1978), and holding that the tribal officer did
not have financial incentive motivating his arrest of Defendant. We hold that (1) the tribal
officer was properly cross-commissioned and could properly arrest Defendant while wearing
the uniform of and receiving his salary from the Tesuque Pueblo Police Department, and (2)
the tribal officer’s receipt of pay from a grant and his obligation under the grant to make
monthly statistical reports did not give rise to a defense under Section 66-8-137(B). We
affirm Defendant’s conviction.

BACKGROUND

{2}    There does not appear to be any dispute as to the facts. Defendant is presumably a
non-Indian, charged with his first offense of DWI. Defendant was in the parking lot of
Camel Rock Casino, within the territorial boundaries of Tesuque Pueblo in Santa Fe County,
New Mexico, when either his “vehicle came into contact with another vehicle . . . while in
the process of parking[,]” or he “crashed his car into a parked car.” In either event, Officer
Joe Vigil of the Tesuque Pueblo Police Department arrived at the scene, determined that
alcohol appeared to be present, conducted a DWI investigation, arrested Defendant, and
ultimately charged Defendant with aggravated DWI in Santa Fe County Magistrate Court.

{3}      The magistrate court conducted a bench trial, and Defendant was convicted of
aggravated DWI, first offense. Defendant appealed the conviction to the First Judicial
District Court. In the district court, Defendant filed a motion to suppress, arguing that
Officer Vigil was not properly cross-commissioned by the Santa Fe County Sheriff’s Office
and, therefore, had no authority to arrest Defendant. The district court denied Defendant’s
motion to suppress, and the parties proceeded to a bench trial. During the trial, Defendant
argued that, because the Tesuque Pueblo Police Department participated in a grant program
that included a requirement that Officer Vigil report on citations and arrests relevant to the
Motor Vehicle Code, Officer Vigil’s compensation depended “in a way” on his arrests for
Motor Vehicle Code violations, and Defendant should be acquitted in accordance with the
defense afforded by Section 66-8-137(B) (providing a defense to defendants if the
compensation of the arresting officer depends in any way upon the arrest or conviction). The
district court denied Defendant’s oral motion and found Defendant guilty of aggravated
DWI. Defendant timely filed a notice of appeal.

CROSS-COMMISSION AND AUTHORITY TO ARREST

{4}     The first issue Defendant raises is whether Officer Vigil was properly cross-
commissioned by the Santa Fe County Sheriff and, therefore, authorized to arrest Defendant
for DWI. Defendant argues that the Santa Fe County Sheriff failed to comply with the
statutory commission and arrest requirements of the Motor Vehicle Code when he purported

                                              2
to cross-commission Officer Vigil. Defendant therefore asserts that his motion to suppress
the evidence gathered by and testimony of Officer Vigil should have been granted pursuant
to Article II, Section 10 of the New Mexico Constitution, which protects against the use of
evidence obtained pursuant to unreasonable search and seizure. See State v. Gutierrez, 1993-
NMSC-062, ¶ 45, 116 N.M. 431, 863 P.2d 1052. Defendant argues both that Officer Vigil
was not properly cross-commissioned as a special deputy and, more broadly, that no tribal
officer could be properly cross-commissioned as a special deputy by any county sheriff
unless the tribal officer was paid by the State of New Mexico and wore a New Mexico State
Police Department uniform. We address Defendant’s arguments below.

Standard of Review

{5}     “A ruling on a motion to suppress evidence presents a mixed question of law and
fact.” State v. Rivera, 2008-NMSC-056, ¶ 10, 144 N.M. 836, 192 P.3d 1213. Our review
is de novo. State v. Attaway, 1994-NMSC-011, ¶¶ 6-7, 117 N.M. 141, 870 P.2d 103.

{6}     Although New Mexico courts have addressed various issues dealing with Indian and
non-Indian defendants and officers and other circumstances of commissioning of officers,
this appeal presents a novel inquiry. In this case, a victimless crime (DWI) was committed
by a non-Indian in Indian Country, and the arresting officer was a tribal officer cross-
commissioned by the Santa Fe County Sheriff’s Office. It is well-settled that the state has
jurisdiction over victimless crimes committed by non-Indians in Indian Country, including
DWI offenses. State v. Harrison, 2010-NMSC-038, ¶ 14, 148 N.M. 500, 238 P.3d 869; see
also State v. Romero, 2006-NMSC-039, ¶ 12, 140 N.M. 299, 142 P.3d 887 (“[P]ueblos are
Indian [C]ountry.”). But see Branham, 2004-NMCA-131, ¶¶ 9-10, 13 (stating that the state
does not have authority to enforce tribal laws on tribal lands, absent a written agreement to
the contrary). Indeed, Defendant does not dispute that a Santa Fe County law enforcement
officer would have had authority to investigate the DWI and arrest Defendant. Rather, the
dispute is whether Officer Vigil was properly cross-commissioned by the Santa Fe County
Sheriff and, as such, authorized to make the arrest.

Cross-Commissioning Deputies/Special Deputies

{7}     NMSA 1978, Section 4-41-5 (1975) authorizes sheriffs in all counties of New
Mexico to appoint deputies. NMSA 1978, Section 4-41-10 (2006) authorizes the sheriff to
appoint “regular or permanent deputy sheriff[s],” as well as “respectable and orderly persons
as special deputies.” Although Section 4-41-10 does not expressly mention whether a sheriff
may appoint as special deputies individuals who are already full-time law enforcement
officers of an Indian nation, tribe, or pueblo, such officers fall within the subset of the
permitted “respectable and orderly persons” category and are, therefore, included.
Moreover, the Legislature has indirectly recognized this authority. In enacting NMSA 1978,
Section 29-1-11 (2005), the Legislature authorized duly commissioned officers of the police
or sheriff’s department of any New Mexico Indian nation, tribe, or pueblo to act as New
Mexico peace officers when commissioned by the chief of the New Mexico State Police

                                             3
according to procedures set forth in that statute. The Legislature specifically provided in
Section 29-1-11(G) that nothing in Section 29-1-11 “limits, impairs or nullifies the authority
of county sheriffs to appoint pursuant to Chapter 4, Article 41 NMSA 1978 duly
commissioned state or federally certified officers who are employees of a police or sheriff’s
department of an Indian nation, tribe or pueblo in New Mexico” (emphasis added). See also
N.M. Att’y Gen. Op. 57-83 (1957) (“[A] sheriff can commission as a special deputy sheriff
a full-time law enforcement officer employed by a municipality, the Navajo Tribe or the
Federal Government[, so long as t]he applicants . . . secure the appointment from the
sheriff . . . and qualify in accordance with [New Mexico law] pertaining to the qualification
of deputy sheriffs.”).

Cross-Commission of Officer Vigil as a Special Deputy for Santa Fe County

{8}     No contention has been made by Defendant below or on appeal that Officer Vigil was
not a “respectable and orderly person[ .]” Section 4-41-10. It is undisputed that Officer
Vigil secured a written appointment from the Santa Fe County Sheriff. See NMSA 1978, §
29-1-9 (2006) (requiring an appointment in writing from a person authorized by law to
appoint special deputy sheriffs in order to assume or exercise the “functions, power, duties,
and privileges” of the position). Officer Vigil signed an oath of office, also signed by the
Santa Fe County Sheriff, and carried a card issued by the Santa Fe County Sheriff’s Office
indicating Officer Vigil’s cross-commissioning status. See § 29-1-9; N.M. Att’y Gen. Op.
57-83. It is also undisputed that Officer Vigil was a properly commissioned, full-time
Tesuque Pueblo tribal officer. Therefore, Officer Vigil was properly commissioned as a
special deputy for the Santa Fe County Sheriff’s Office. What Officer Vigil was entitled to
do as a special deputy for the Santa Fe County Sheriff’s Office is a separate inquiry.

{9}     The scope of Officer Vigil’s authority depends on the authority given to him by the
Santa Fe County Sheriff. Section 4-41-10 states that special deputies, as appointed by a
county sheriff, may serve a particular order, writ, or process or, if the sheriff has so deemed
“necessary and required for the purpose of preserving the peace,” may act as otherwise
authorized. NMSA 1978, Section 4-41-9 (1855-1856) confirms that “[t]he said deputies are
hereby authorized to discharge all the duties which belong to the office of sheriff, that may
be placed under their charge by their principals[.]” See Novak v. Dow, 1970-NMCA-104,
¶¶ 5-7, 82 N.M. 30, 474 P.2d 712 (discussing the potential authority of a special deputy in
accordance with Section 4-41-9 (citing its prior codification at NMSA 1953, Section 15-40-
11 (1865), identical to the current statute), and holding that the special deputy had “such
authority as had been conferred upon him by [the] Sheriff” and that “[t]he extent of [the
special deputy]’s authority was a question of fact”).

{10} The Santa Fe County Sheriff testified in this case that he gave Officer Vigil the
authority to enforce criminal and traffic laws, including DWI, within Santa Fe County.
There was no conflicting evidence, and, consequently, Officer Vigil was authorized to
investigate and arrest Defendant for any violations of DWI law occurring in Santa Fe
County.

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Additional Requirements Unnecessary

{11} Defendant additionally argues that the Legislature has imposed several other
requirements for proper cross-commissioning of officers that have not been met in this case.
We address each of these arguments.

{12} First, Defendant contends that Officer Vigil’s commission was not valid because,
even though he signed an oath of office, the oath of office was not filed. However, Section
4-41-10 expressly states that it is “not . . . necessary to give or file any notice of such special
appointment[.]” No notice of Officer Vigil’s cross-commissioning as special deputy needed
to be given or filed regarding his appointment.

{13} Second, Defendant argues that Officer Vigil was neither wearing a uniform nor paid
the salary of a Santa Fe County deputy sheriff, and, therefore, he was not properly
commissioned. However, as set forth above, neither of these requirements has been included
in New Mexico statutory or case law for proper cross-commissioning of a special deputy.
Although there are statutory requirements that an arresting officer be commissioned,
salaried, and in uniform, the statutes do not specify that the uniform or the salary be from the
cross-commissioning authority. NMSA 1978, Section 66-8-124(A) (2007) simply states that
arrests for violations under the Motor Vehicle Code or other law relating to motor vehicles
punishable as a misdemeanor must be made by “a commissioned, salaried peace officer who,
at the time of arrest, is wearing a uniform clearly indicating the peace officer’s official
status.” Similarly, under NMSA 1978, Section 66-8-125(C) (1978), members of the New
Mexico State Police, sheriffs, and their salaried deputies and members of any municipal
police force, may arrest without warrant any person present at the scene of a motor vehicle
accident, but they “may not make arrest for traffic violations if not in uniform[.]” We note
that traffic stops, as temporary detentions, are included within the term “arrest” as used in
Section 66-8-124(A) and Section 66-8-125. State v. Slayton, 2009-NMSC-054, ¶ 20, 147
N.M. 340, 223 P.3d 337.

{14} We have addressed the requirements of Section 66-8-124(A) in State v. Archuleta,
1994-NMCA-072, 118 N.M. 160, 879 P.2d 792. In that case, the defendant contended that
his traffic citation should have been dismissed because the officer making the stop was not
in uniform. Id. ¶ 1. When he engaged the emergency equipment on his police car to stop
the defendant, the officer was off-duty and wearing civilian clothes. Id. ¶ 2. Before
approaching the defendant, the officer put on a police department windbreaker with a police
department cloth shield and the State of New Mexico emblem. Id. We noted in Archuleta
that the intent of the Legislature in requiring the officer making a traffic stop to wear a
uniform that plainly indicated the officer’s status “was to enable the motorist to be certain
that the officer” making the stop “is, in fact, a police officer.” Id. ¶ 9. We adopted
alternative tests to determine whether an officer is “in uniform” for the purposes of Section
66-8-124(A): an objective one—“whether there are sufficient indicia that would permit a
reasonable person to believe the person purporting to be a peace officer is, in fact, who he
claims to be”; and a subjective one—“whether the person stopped and cited either personally

                                                5
knows the officer or has information that should cause him [or her] to believe the person
making the stop is an officer with official status.” Archuleta, 1994-NMCA-072, ¶ 11.
Defendant does not dispute that Officer Vigil was wearing his Tesuque Pueblo Police
Department uniform at the time of the arrest. A reasonable person would thus believe that
Officer Vigil was a peace officer, which is sufficient to satisfy the requirement that the
arresting officer be in uniform.

{15} We additionally observed in Archuleta that the Legislature had amended Section 66-
8-124 in 1968 in order to recognize modern practices with respect to police uniforms. Id.
¶ 10. Likewise, we do not believe that the Legislature intended to restrict the ability of
cross-commissioned officers to perform their dual responsibilities. The purpose of cross-
commissioning law enforcement officers is to promote a functional law enforcement process
across jurisdictional boundaries. See Note, Intergovernmental Compacts in Native American
Law: Models for Expanded Usage, 112 Harv. L. Rev. 922, 927 (1999) (observing that
“numerous states and tribes have responded to the common need for effective law
enforcement by developing cross-deputization” and other agreements). It would be absurd
to expect that a cross-commissioned officer with authority in two jurisdictions would need
to change uniforms when the officer needs to make a traffic stop or an arrest and is wearing
the uniform of the other jurisdiction. See State v. Davis, 2003-NMSC-022, ¶ 13, 134 N.M.
172, 74 P.3d 1064 (stating that we do not construe statutes in a manner leading to absurd
results).

{16} We reach the same result with respect to Officer Vigil’s salary. While, as Defendant
argues, Section 66-8-124(A) and Section 66-8-125(C) grant the authority to arrest to “a
commissioned, salaried peace officer” and “New Mexico state police, sheriffs and their
salaried deputies, and members of any municipal police force” respectively, neither section
requires the officer’s salary be from the authority cross-commissioning the officer. For the
purposes of Section 66-8-124(A), Officer Vigil was a “salaried peace officer” of the Tesuque
Pueblo. For Section 66-8-125(C), the Tesuque Pueblo Police Department is comparable to
a municipal police force. See N.M. Att’y Gen. Op. 57-83 (treating similarly municipalities
and the Navajo Nation for purposes of commissions as deputy sheriffs under New Mexico
law). Indeed, the source of an officer’s salary, although administratively significant, is not
relevant to the purposes of cross-commissioning law enforcement officers to jointly perform
law enforcement responsibilities. Cf. Archuleta, 1994-NMCA-072, ¶¶ 9, 10 (stating that
“[i]t seems clear enough that the intention of the [L]egislature in requiring the officer to wear
a uniform plainly indicating his official status was to enable the motorist to be certain that
the officer who stops him is, in fact, a police officer”). And the fact that Santa Fe County
did not also provide Officer Vigil with a salary, above and beyond the salary he received
from the Tesuque Pueblo Police Department, has no bearing on whether Officer Vigil was
properly cross-commissioned. Cf. § 4-41-10 (stating, after authorizing sheriffs to appoint
special deputies, that “[t]here shall be no additional fees or per diem paid by the counties for
any additional deputies other than as provided by law”). Moreover, it would be absurd to
require the salary of a cross-commissioned officer to correspond to the authority the officer
is exercising at the time of a traffic stop or arrest.

                                               6
{17} Third, Defendant asserts that Officer Vigil was not authorized to carry a concealed
weapon because he was not a “fully certified or full-time certified sheriff[] deput[y].”
However, Officer Vigil was independently authorized to carry his concealed weapon in
connection with his job as a Tesuque tribal police officer. If Officer Vigil had not already
been a commissioned police officer with another agency or was not otherwise entitled to
carry a concealed weapon, perhaps the issue might have bearing on this case. As it is, the
issue of whether Officer Vigil carried a concealed weapon does not appear to be relevant to
the issues in this case and does not provide information necessary to determine whether
Officer Vigil was properly cross-commissioned as a special deputy.

State v. Slayton and State v. Bricker

{18} Because Defendant extensively relies on Slayton, 2009-NMSC-054, and State v.
Bricker, 2006-NMCA-052, 139 N.M. 513, 134 P.3d 800, to argue that Officer Vigil did not
have the authority to arrest Defendant for DWI because Officer Vigil was not a
“commissioned peace officer”, we take the opportunity to explain why those cases do not
bear on this appeal.

{19} The issue in Slayton was different from the issue in this case. At issue here is
whether a cross-commissioning was effective; in Slayton, the issue was whether a police
service aide was commissioned at all or had authority to make an arrest. See 2009-NMSC-
054, ¶¶ 1, 12, 15. Our Supreme Court held in Slayton that the police service aide was not
commissioned and was not authorized to make a misdemeanor arrest under the Motor
Vehicle Code. Id. ¶ 17. Whether a police service aide is commissioned is not relevant to
this case. In Bricker, the custodial arrest of the defendant was unlawful because the
defendant should have been issued a summons and released. 2006-NMCA-052, ¶ 14; see
Slayton, 2009-NMSC-054, ¶ 28. At issue in Bricker was whether the unlawful custodial
arrest violated either the New Mexico or United States Constitutions, which would require
suppression of evidence obtained consequent to the arrest. 2006-NMCA-052, ¶ 14. Neither
Slayton nor Bricker speaks to whether Officer Vigil was properly cross-commissioned or,
if cross-commissioned, the limits of his authority.

COMPENSATION FOR DWI ARRESTS

{20} The second issue Defendant raises on appeal is whether Defendant was entitled to
a defense under Section 66-8-137(B) because Officer Vigil “was working under a grant that
targets the motoring public[, and which] has the effect of incentivizing the officers to
increase their rate of pay[.]” Defendant concludes that Officer Vigil’s conduct in making
efforts to maintain the grant “was grounds for an acquittal under the statute and [Defendant]
should have been found not guilty.”

The Grant: A Portion of Officer Vigil’s Compensation

{21}   The underlying facts regarding the grant, pursuant to which Officer Vigil received

                                             7
a portion of his pay, are undisputed, although the characterizations of those facts differ.
Officer Vigil testified that he received a salary from the Tesuque Pueblo Police Department
and that, as part of his job duties as a police officer, he was charged with arresting and
convicting individuals for offenses that included DWI. The department received a grant from
the Bureau of Indian Affairs for dedicated DWI police officers, which provided the salaries
for traffic officers and overtime for other officers. Officer Vigil submitted monthly statistics
as information that was used to apply for the grant. As a result of the department’s receipt
of the grant, Officer Vigil’s pay increased approximately two dollars per hour. His pay,
however, did not fluctuate with the number of arrests he made. He was included within the
grant at the time he arrested Defendant.

{22} The question for our review is whether the Tesuque Pueblo Police Department’s
receipt of the grant and Officer Vigil’s resulting increase in compensation constituted the
type of “compensation” depending upon arrest or conviction prohibited by Section 66-8-
137(B). We review “factual findings under a substantial evidence standard, viewing the
facts in the light most favorable to the prevailing party, and we review de novo whether the
district court correctly applied the law to the facts.” Slayton, 2009-NMSC-054, ¶ 11.

Compensation Depending Upon Arrest or Conviction

{23}   Section 66-8-137(B) states:

               If any person is arrested or brought to trial for violation of the Motor
       Vehicle Code or other law, ordinance or regulation relating to motor vehicles
       punishable as a misdemeanor by any officer, agent or employee of any
       political subdivision, or before any municipal judge, whose compensation
       depends in any way upon the arrest or conviction of persons violating these
       laws, ordinances or regulations, the fact of such compensation or that the
       person making the arrest was not in uniform at the time is a defense to the
       charge.

{24} Defendant argues that he was entitled to an acquittal based on Section 66-8-137(B)
because Officer Vigil’s pay depended “in a way” on his arrest of persons violating the Motor
Vehicle Code. In making this argument, Defendant does not rely on the fact that Officer
Vigil received a salary for duties that included arresting and convicting individuals for
offenses that included DWI. Defendant bases his defense on the increase in Officer Vigil’s
pay in connection with the grant in which the department was obligated to report the number
of automobile accidents investigated and DWI arrests made. According to Defendant, the
consequence of the grant was that Officer Vigil’s compensation “in a way” depended on his
arrests and convictions.

{25} The question presented by Section 66-8-137(B) ultimately is, for what did Officer
Vigil receive his compensation. If Officer Vigil received any compensation for arresting or
convicting individuals for violations under the Motor Vehicle Code or other law, ordinance,

                                               8
or regulation relating to motor vehicles punishable as a misdemeanor, or if he received any
compensation for increasing his arrests or convictions for such violations, Defendant would
be entitled to the defense under Section 66-8-137(B). However, none of these circumstances
appears to be the case here.

{26} As stated by Defendant, “[t]o receive the money, the officers turn in to the police
captain information on numbers of arrests and citations, the number of DWI arrests, and the
grant writers know the department is compliant because of the statistics and number of
arrests.” In his reply brief, Defendant reiterates that “[the] Tesuque [Pueblo Police
Department] had to submit enforcement statistics to keep [the grant], this is clear.” In other
words, according to Defendant, to be entitled to the grant, all that appears to be required is
that the Tesuque Pueblo Police Department turn in data. Defendant has not pointed to
anything in the record to indicate that Officer Vigil was required to actually arrest or convict
a certain number of individuals in order for the department to be eligible for the grant, that
Officer Vigil was required to meet certain quotas to be eligible for the grant, or that Officer
Vigil’s pay was linked to the number of arrests or convictions. Rather, Officer Vigil’s pay
increased because he agreed to report statistics. The mere fact that Officer Vigil’s pay
increased pursuant to a grant that was given to the department because Officer Vigil,
presumably among others, reported on the number of arrests and convictions does not trigger
the Section 66-8-137(B) defense.

CONCLUSION

{27} For the foregoing reasons, we hold that Defendant has not met his burden of
demonstrating error and affirm the district court’s conviction of Defendant. See State v.
Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (recognizing that there is a
presumption of correctness in the rulings of the trial court, and the party claiming error bears
the burden of showing such error). We affirm Defendant’s conviction for aggravated DWI,
first offense, contrary to Section 66-8-102.

{28}   IT IS SO ORDERED.

                                               ____________________________________
                                               JAMES J. WECHSLER, Judge


WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

____________________________________
J. MILES HANISEE, Judge


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