County of Los Alamos v. Tapia

WILSON, Justice, dissenting.

I respectfully dissent from the majority opinion in the following respects.

I agree with the majority that NMSA 1978, Section 31-2-8 (Repl.Pamp.1984) of the Uniform Act on Fresh Pursuit authorizes the extraterritorial arrest of petty misdemeanants who are apprehended after hot pursuit. A reading of the statute requires such an interpretation, and public policy demands that petty misdemeanants not be allowed a safe haven across county lines.

I cannot agree with the majority, however, that the defendant in this case may be retried on the same charges which he successfully defeated at his trial on the merits. This conclusion is even more compelling under the majority’s opinion which recognizes that the previous law would not have allowed the police officer to pursue and arrest this defendant, a petty misdemeanant, across county lines. Without the benefit of our present opinion, the district court accurately interpreted and applied the law as it existed at the time of trial; the district court’s judgment should now be upheld.

The majority interprets the district court’s “dismissal” of all charges against the defendant as “trial error” rather than acquittal. However, “what constitutes an ‘acquittal’ is not to be controlled by the form of the judge’s action.” United States v. Martin Linen Supply Co., 430 U.S. 564, 571 , 97 S.Ct. 1349, 1354 , 51 L.Ed.2d 642 (1977) (citing United States v. Sisson, 399 U.S. 267 , 90 S.Ct. 2117 , 26 L.Ed.2d 608 (1970)). Rather, the appellate courts must determine whether the ruling of the judge below, “whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Id. 430 U.S. at 571 , 97 S.Ct. at 1355 . The district court in this case called its ruling a dismissal; it was a “legal determination on the basis of facts adduced at the trial relating to the general issue of the case.” United States v. Sisson, 399 U.S. 267 , 290 n. 19, 90 S.Ct. 2117 , 2130 n. 19, 26 L.Ed.2d 608 (1970). As such, it is the functional equivalent of an acquittal on the merits. See also Burks v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978).

Once a judgment of acquittal has been entered, whether it is based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, it may not be appealed and terminates the prosecution. United States v. Scott, 437 U.S. 82, 91 , 98 S.Ct. 2187, 2193 , 57 L.Ed.2d 65 (1978). “Thus when a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous.” Sanabria v. United States, 437 U.S. 54, 64 , 98 S.Ct. 2170, 2179 , 57 L.Ed.2d 43 (1978).

A ruling on the factual elements of a case oftentimes cannot be easily disentangled from the trial procedures involved. This is reflected in the plethora of United States Supreme Court cases recently emerging regarding double jeopardy. Each new case modifies the legal analysis espoused in the preceding cause and alters the standard of review on the issue.

This ever-changing area of law must be applied to the particulars of this case. Noting the current persuasion of the United States Supreme Court, and giving thoughtful consideration to the policies underlying the double jeopardy doctrine as enunciated in the majority opinion above, I am compelled to find that double jeopardy bars retrial in this case. The district court received evidence during a trial on the merits, made findings of fact and conclusions of law based on the evidence presented, and determined that there was not reasonable suspicion to stop the defendant for DWI. The district court made a legal ruling, supported by the facts, that the plaintiff could not provide sufficient evidence to bear its burden of proof. Once the defendant moved to suppress all of the plaintiff’s evidence as inadmissible fruit of an illegal arrest, there was no other evidence available to prove the defendant’s guilt. Consequently, the district court dismissed all charges against the defendant.

While the majority concludes that the defendant’s motion to dismiss all charges was essentially a motion for a mistrial or a motion to stay the proceedings to allow the plaintiff an appeal, I believe the defendant will be surprised to learn that he had made such a request. It is my opinion that the defendant specifically requested a final adjudication of the charges against him and that the district court in this case clearly acquitted him of these charges, in substance as well as in form.

The case before us is on all fours with a Ninth Circuit case in which the court of appeals found double jeopardy barred the defendant’s retrial. In United States v. Baptiste, 832 F.2d 1173 (9th Cir.1987) the defendant was charged with driving under the influence of alcohol. Trial was held before the magistrate court, and after the government presented its case and rested, the defendant moved for a judgment of acquittal. The magistrate court determined that the police officer lacked probable cause to order the defendant out of his car. Consequently, the court refused to consider any evidence submitted by the government and dismissed the charges. The government appealed, and the district court thereupon dismissed the case on double jeopardy grounds. Shortly thereafter, the district court sua sponte vacated its dismissal and remanded the case for a retrial, finding that the magistrate court erred in determining there was no probable cause. The district court decided that the erroneous probable cause determination by the magistrate court resulted in the suppression of evidence and a simple dismissal rather than a judgment of acquittal.

As in the case before us, the government in the Baptiste case argued on appeal that the magistrate did not evaluate the evidence, but rather dismissed the case on a perceived violation of state law. However, the Ninth Circuit disagreed. They stated:

The proper analysis is that because the magistrate refused to consider any of the government’s evidence, there was no evidence available to prove Baptiste’s guilt. This can only mean that the “evidence was legally insufficient to convict.” Hence, the magistrate’s action is properly characterized as a judgment of acquittal. See [U.S. v.] Ember, 726 F.2d [522] at 524 [ (9th Cir.1984) ]. That the magistrate may have erred in his ruling is irrelevant. See Sanabria, 437 U.S. at 68-69 , 98 S.Ct. at 2181 (erroneous evidentiary ruling leading to erroneous judgment of acquittal for insufficient evidence bars further prosecution).

United States v. Baptiste, 832 F.2d 1173, 1175 (9th Cir.1987). I find this legal analysis in the Baptiste case convincing, especially in light of the remarkable factual similarities to the case at bar.

On the issue of whether retrial is permissible because the district court’s dismissal came as the result of the defendant’s motion to suppress evidence, as opposed to an unqualified demand for acquittal and dismissal, I find the distinction irrelevant. After a lengthy discussion of the effect of a defendant’s request on a double jeopardy proceeding, whether it be the defendant’s motion for a new trial or a motion for acquittal, the United States Supreme Court stated: “In our view it makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy.” Burks v. United States, 437 U.S. 1, 17 , 98 S.Ct. 2141, 2150 , 57 L.Ed.2d 1 (1978). In so ruling, the Supreme Court weighed the policy reasons behind allowing retrial where the accused successfully seeks review of a conviction and expressly overruled prior decisions suggesting that by moving for a new trial, a defendant waives his right to a judgment of acquittal on the basis of evidentiary insufficiency. I agree that it is immaterial that the trial termination in this case followed the defendant’s motion to dismiss since the dismissal was the functional equivalent of an acquittal.

The majority opinion also makes much of the fact that the defendant waited until jeopardy had attached to raise his motion to suppress, stating:

Having waited until then, and having moved to terminate the trial through a dismissal of the charge rather than to pursue his valued right to have his trial completed by the first tribunal, he does not have a strong claim to protection of this interest. Looking at the case from the county’s standpoint, it did not bring about the termination of the trial; the dismissal was entered, obviously, over its objection.

What the majority is saying, although carefully camouflaged, is that the defendant waived his constitutional right of jeopardy by objecting belatedly to the evidence. I disagree; constitutional rights should not be jeopardized by tactical decisions or cosmetic procedures.

First, it should be noted that our local rules, specifically SCRA 1986, Rule 5-601, do not mandate a specific time in which to file a motion to suppress evidence. The “defendant’s duty to move for suppression of evidence before trial is discretionary.” State v. Doe, 93 N.M. 143, 148 , 597 P.2d 1183, 1188 (Ct.App.1979) (interpreting prior Rule 18, N.M.R.Crim.P.).

Although orderly procedure requires the motion to be made earlier [interpreting Fed.R.Crim.P. 41(e) ], the court in its discretion may entertain a motion at the trial stage. That discretion should be liberally exercised in the furtherance of justice. Gallegos v. United States, 237 F.2d 694 (10th Cir.1956). In other words, the failure of defendant to file a motion to suppress prior to trial did not foreclose defendant’s right to object to the admission of evidence during the trial. Glisson v. United States, 406 F.2d 423 (5th Cir.1969).

Id. at 148, 597 P.2d at 1188 .

Second, unlike State v. Aragon, 89 N.M. 91 , 547 P.2d 574 (Ct.App.), cert. denied, 89 N.M. 206 , 549 P.2d 284 (1976), overruled on other grounds, State v. Rickerson, 95 N.M. 666 , 625 P.2d 1183 , cert. denied, 454 U.S. 845 , 102 S.Ct. 161 , 70 L.Ed.2d 132 (1981), the failure of the defendant here to file his motion to suppress prior to trial did not result in prejudice to the plaintiff. The plaintiff in this case had advance notice that the defendant would be raising this motion to suppress evidence; the defendant had raised the motion previously at the municipal court level. While the plaintiff now complains that the defendant’s motion to suppress was untimely, the plaintiff did not raise this critical issue itself in a pretrial hearing; nor did it object to the district court’s ruling to dismiss or offer to proceed with trial by presenting other evidence against the defendant after the district court granted the defendant’s motion to suppress. Furthermore, the plaintiff failed to protect its anticipatory appellate rights by failing to specifically request the district court to declare a mistrial for manifest necessity or stay the proceedings in order to take an interlocutory appeal. The majority apparently agrees with Judge Bivins’s dissent in the court of appeals’s opinion below that “the proper procedure would have been to allow the county to proceed, and if it had no further proof, then dismiss. If defendant had insisted on completion of his trial, as he should have, this issue would not have arisen.”

As the Supreme Court stated in Sanabria v. United States, “[ljegal consequences ordinarily flow from what has actually happened, not from what a party might have done from the vantage of hindsight.” 437 U.S. 54, 65 , 98 S.Ct. 2170, 2179 , 57 L.Ed.2d 43 (1978). I believe the plaintiff in this case received a fair opportunity to bring the full weight of the state against the defendant in district court; I therefore do not think it now rightfully can claim that no jeopardy attached simply because the defendant successfully challenged the evidence against him.

For the reasons stated above, I respectfully dissent.