RYDER V. STATE, 1982-NMSC-066, 98 N.M.
316, 648 P.2d 774 (S. Ct. 1982)
EDWARD RYDER, NELLIE CANO and BARRY
PRESSING, Petitioners,
vs.
STATE OF NEW MEXICO, Respondent.
SUPREME COURT OF NEW MEXICO
1982-NMSC-066, 98 N.M. 316, 648 P.2d 774
ORIGINAL PROCEEDING ON CERTIORARI
Motion for Rehearing denied July 19,
1982
Bruce J. Ponder, El Paso, Texas, Hebard
& Hebard, Peter M. Hebard, Alamogordo, New Mexico, for Petitioners.
Jeff Bingaman, Attorney General, Carol
Vigil, Asst. Attorney General, Thomas Lea Dunigan, Dep. Attorney General,
Thomas Patrick Whelan, Jr., Mary Hoffman, Asst. Attorneys General, Santa Fe,
New Mexico, for Respondent.
R. E. Thompson, United States Attorney,
Herbert A. Becker, Asst. United States Attorney, Albuquerque, New Mexico, John
Petoskey, Bruce Thompson, Zuni, New Mexico, Anthony F. Little, Bernalillo, New
Mexico, Fettinger & Bloom, George E. Fettinger, Kim Jerome Gattschalk,
Alamogordo, for amicus curiae.
Easley, C.J., wrote the opinion. WE
CONCUR: DAN SOSA, JR., Senior Justice, H. VERN PAYNE, Justice, WILLIAM R.
FEDERICI, Justice, WILLIAM RIORDAN, Justice.
{*317} EASLEY, Chief
Justice.
{1} Ryder, Cano and Pressing
were indicted for distribution of marijuana. The trial court suppressed the
evidence obtained from the search warrant. On interlocutory appeal, the Court
of Appeals reversed the lower court and held that the suppressed evidence was
admissible. We granted the petition for certiorari, and we affirm the Court of
Appeals but on different grounds than those enunciated by that court.
1. Whether a state court has jurisdiction to hear a case
involving a criminal offense committed on a highway within an Indian
reservation by non-Indians, which offense is neither against an Indian nor
involves Indian property.
2. Whether a non-cross-commissioned Bureau of Indian Affairs
(BIA) police officer had the legal authority to detain the defendants so that a
cross-commissioned BIA police officer could arrive and issue the driver of the
pick-up truck a state traffic citation.
{3} Officer Rocha, a BIA
police officer, stopped defendants' pick-up truck for running a stop sign
located at the intersection of U.S. Highway 70 and New Mexico Highway 24 within
the exterior boundaries of the Mescalero Apache Reservation. When Officer Rocha
approached the pick-up, he realized that Pressing, the driver, was a
non-Indian. Ryder and Cano were passengers. Officer Rocha was not
cross-commissioned under Section
29-1-11, N.M.S.A. 1978 (Cum. Supp. 1981), and
therefore could not issue a state traffic citation. That statute provides in
part:
A. All persons that are duly commissioned officers of the
police or sheriff's department of any New Mexico Indian tribe or pueblo or who
are law enforcement officers employed by the bureau of Indian affairs and are
assigned in New Mexico are, when commissioned * * *, recognized and authorized
to act as New Mexico peace officers. These officers have all the powers of the
New Mexico peace officers to enforce state laws in New Mexico, including but
not limited to the power to make arrests for violation of state laws.
{4} Officer Rocha requested
or was proferred Pressing's driver's license. He ran a check on it, and asked
Pressing to return to the pick-up and wait. Officer Rocha radioed Officer
Chino, who was a cross-commissioned BIA police officer, to have him issue
Pressing the state traffic citation.
{5} A few minutes later,
Pressing got out of his pick-up truck and got into Officer Rocha's patrol car.
Officer Rocha smelled the odor of marijuana on Pressing's clothes and then told
Pressing to return to his pick-up. Officer Rocha called Officer Chino, asking
him to hurry because he believed that the defendants had marijuana in their
possession.
{6} Officer Chino arrived ten
minutes after receiving the first call from Officer Rocha. Officer Chino
checked Pressing's driver's license and issued the state traffic citation to
him. He also advised Pressing that Officer Rocha thought Pressing's clothes
smelled of marijuana and would like to look inside the cab of the pick-up
truck. The search of the cab revealed the presence of marijuana. Officer Chino
arrested defendants for the possession of marijuana. A search warrant was
obtained and about 270 pounds of marijuana was found in the pick-up truck.
{7} At the suppression
hearing, defendants sought to exclude the contraband seized. Defendants contend
the stop was illegal because Officer Rocha did not have the authority to issue
a traffic citation under state law. Thus, any fruits obtained from the search
must be suppressed. The trial court suppressed the evidence based on Officer
Rocha's lack of legal authority to detain
{*318}
non-Indians. The Court of Appeals found that under
Oliphant v. Suquamish
Indian Tribe, 435 U.S. 191, 98 S. Ct. 1011, 55 L. Ed. 2d 209 (1978), a
tribal police officer may arrest non-Indians, so long as the Indian authorities
"promptly deliver up any non-Indian offender, rather than try and punish
him themselves."
Id. at 208, 98 S. Ct. at 1020. The Court of
Appeals held that Officer Rocha's detainment of the defendants was not illegal
and the evidence was therefore admissible.
{8} We first address whether
this case is properly in state court. In
United States v. McBratney, 104
U.S. 621, 624, 26 L. Ed. 869 (1882), the United States Supreme Court said:
"[A state] has acquired criminal jurisdiction over its own citizens and
other white persons throughout the whole of the territory within its limits,
including [an Indian] Reservation * * *." The underlying rationale for
this principle is non-interference with Indian sovereignty.
See Oliphant v.
Suquamish Indian Tribe, supra; Williams v. Lee, 358 U.S. 217, 79 S. Ct.
269, 3 L. Ed. 2d 251 (1959). This Court held in
State v. Warner, 71 N.M.
418,
379 P.2d 66 (1963), that a non-Indian driving on Indian land located
within the territorial boundaries of the state, while under the influence of
intoxicating liquor, is subject to the jurisdiction of state courts. We
conclude that the defendants are properly before the state court.
{9} We next address the issue
of whether a non-cross-commissioned BIA police officer had the lawful authority
to detain the defendants. All parties agree that Officer Rocha had the
authority to stop the pick-up truck for running the stop sign. Defendants
contend that once the BIA police officer determined the driver was a
non-Indian, he had to let the defendants go based on the officer's lack of
lawful authority to issue a state traffic citation.
{10} Congress vests BIA police
officers with the authority to maintain law and order by enforcing both federal
and tribal law on Indian land. 25 U.S.C. § 13 (1976); Act of November 27, 1979,
Pub. L. No. 96-126, 93 Stat. 954 (1979).
{11} The Assimilative Crimes
Act, 18 U.S.C. § 13 (1976), provides:
Whoever within or upon any of the places now existing or
hereafter reserved or acquired * * *, is guilty of any act or omission which,
although not made punishable by any enactment of Congress, would be punishable
if committed or omitted within the jurisdiction of the State, Territory,
Possession, or District in which such place is situated, by the laws thereof in
force at the time of such act or omission, shall be guilty of a like offense
and subject to a like punishment.
This Act incorporates state substantive criminal law as
federal substantive criminal law, unless a federal statute covers the subject
matter. Williams v. United States, 327 U.S. 711, 66 S. Ct. 778, 90 L.
Ed. 962 (1946); Annot., 2 L. Ed. 2d 1686 (1958); Note, The Federal
Assimilative Crimes Act, 70 Harv.L. Rev. 685 (1957). The Act applies to
Indian land and reservations, Id., which the Mescalero Apache Indian
Reservation falls within. United States v. State of New Mexico, 590 F.2d
323 (10th Cir. 1978), cert. denied, 444 U.S. 832 (1979); 18 U.S.C. §§
1151, 1152 (1976). The undisputed testimony of Officer Rocha stated that the
offense occurred on Indian land. The Act applies to victim crimes, Williams
v. United States, supra (rape), as well as to victimless ones, United
States v. Barner, 195 F. Supp. 103 (N.D. Cal. 1961) (driving while under
the influence of alcohol); United States v. Watson, 80 F. Supp. 649
(E.D. Va. 1949) (reckless driving). We conclude that a non-cross-commissioned
BIA police officer had the lawful authority not only to stop the pick-up truck,
but also he could have issued the driver, Pressing, a federal traffic citation
based on state law.
{12} However, Officer Rocha
did not, believing that he had to be cross-commissioned in order to do so.
Since the stop was valid, we next inquire whether detaining the defendants for
ten minutes for the sole purpose of getting a cross-commissioned BIA police
officer to issue a state traffic citation
{*319}
constitutes an unlawful detainment.
{13} The rule of law in New Mexico
on detainments is set forth in
State v. Lewis, 80 N.M. 274,
454 P.2d 360
(Ct. App. 1969). Judge Wood said, "The issue is the reasonableness of the
initial detention and the reasonableness of the police action taken pursuant to
that detention."
Id. at 276, 454 P.2d at 362. Officer Rocha was
under the mistaken belief that he could not issue a traffic citation and so he
detained the defendants for the sole purpose of getting a cross-commissioned
officer to issue Pressing the citation. This took no longer than ten minutes.
We find that detaining defendants for ten minutes was reasonable.
{14} We affirm the decision
of the Court of Appeals on the grounds stated in this opinion.
SOSA, Senior Justice, PAYNE, Justice, FEDERICI, Justice, and
RIORDAN, Justice.