{ "id": 1557263, "name": "STATE of New Mexico, Petitioner, v. John DOE, a child, Respondent", "name_abbreviation": "State v. Doe", "decision_date": "1978-09-06", "docket_number": "No. 11983", "first_page": "100", "last_page": "104", "citations": [ { "type": "official", "cite": "92 N.M. 100" }, { "type": "parallel", "cite": "583 P.2d 464" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "465 F.2d 79", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 714700 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/f2d/465/0079-01" ] }, { "cite": "18 L.Ed.2d 1359", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1967, "opinion_index": 0 }, { "cite": "87 S.W. 2133", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1967, "opinion_index": 0 }, { "cite": "388 U.S. 917", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182337, 6182885, 6183049, 6182187, 6182704, 6182033, 6182517 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0917-03", "/us/388/0917-06", "/us/388/0917-07", "/us/388/0917-02", "/us/388/0917-05", "/us/388/0917-01", "/us/388/0917-04" ] }, { "cite": "373 F.2d 241", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2040874 ], "year": 1967, "pin_cites": [ { "page": "245" } ], "opinion_index": 0, "case_paths": [ "/f2d/373/0241-01" ] }, { "cite": "376 U.S. 364", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 379750 ], "weight": 3, "year": 1964, "opinion_index": 0, "case_paths": [ "/us/376/0364-01" ] }, { "cite": "88 N.M. 103", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840899 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0103-01" ] }, { "cite": "194 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "282 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568083 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/282/0633-01" ] }, { "cite": "116 Ariz. 142", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1591992 ], "weight": 3, "year": 1977, "opinion_index": 0, "case_paths": [ "/ariz/116/0142-01" ] }, { "cite": "29 L.Ed.2d 430", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "91 S.Ct. 2188", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 0 }, { "cite": "402 U.S. 1008", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11782145, 11782244, 11782501, 11781991, 11782095, 11782193, 11782420, 11781944, 11782301, 11782046 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/402/1008-05", "/us/402/1008-07", "/us/402/1008-10", "/us/402/1008-02", "/us/402/1008-04", "/us/402/1008-06", "/us/402/1008-09", "/us/402/1008-01", "/us/402/1008-08", "/us/402/1008-03" ] }, { "cite": "438 F.2d 381", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2206507 ], "year": 1971, "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/f2d/438/0381-01" ] }, { "cite": "414 U.S. 14", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11714834 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "16" }, { "page": "188" } ], "opinion_index": 0, "case_paths": [ "/us/414/0014-01" ] }, { "cite": "82 N.M. 563", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331179 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0563-01" ] }, { "cite": "77 N.M. 47", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2810138 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "49" }, { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/nm/77/0047-01" ] }, { "cite": "462 P.2d 625", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5360200, 5364280, 5367191 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/81/0040-03", "/nm/81/0040-01", "/nm/81/0040-02" ] }, { "cite": "81 N.M. 40", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5364280, 5360200, 5367191 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/81/0040-01", "/nm/81/0040-03", "/nm/81/0040-02" ] }, { "cite": "81 N.M. 47", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5361327 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0047-01" ] }, { "cite": "78 N.M. 597", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320552 ], "weight": 2, "pin_cites": [ { "page": "599" }, { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/nm/78/0597-01" ] } ], "analysis": { "cardinality": 591, "char_count": 10084, "ocr_confidence": 0.787, "pagerank": { "raw": 5.97666102809832e-07, "percentile": 0.9539073513552334 }, "sha256": "f9bcd1826ec49021cdc13889f4a0357b922c195615b588e8dba4041919f229c6", "simhash": "1:bd7cb2eb6d6d4165", "word_count": 1695 }, "last_updated": "2023-07-14T17:06:13.817562+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SOSA, EASLEY, PAYNE and FEDERICI, JJ., concur." ], "parties": [ "STATE of New Mexico, Petitioner, v. John DOE, a child, Respondent." ], "opinions": [ { "text": "OPINION\nMcMANUS, Chief Justice.\nJohn Doe (defendant) was adjudged a delinquent child when he was convicted of disorderly conduct in violation of \u00a7 40A-20-1, N.M.S.A. 1953 (Repl.1972) and battery upon a police officer in violation of \u00a7 40A-22-23, N.M.S.A. 1953 (Repl.1972). He was committed to the Boys\u2019 School. The defendant appealed and the Court of Appeals reversed both convictions. The State petitioned for a writ of certiorari. We granted the writ and now affirm in part and reverse in part the decision of the Court of Appeals.\nThe defendant was a passenger in a car which was stopped by a police patrol after the car had pulled into the parking lot of a liquor store twice. While the officers were questioning the driver, the defendant got out of the car and started arguing with the officers in a loud voice. After several warnings, the defendant was arrested for disorderly conduct. He was then taken to the police station and turned over to the booking officers to be incarcerated. When a routine search was attempted, the defendant struck and kicked the officers searching him.\nOn appeal the defendant challenged the constitutionality of \u00a7 40A-20-1. The Court of Appeals did not reach the constitutionality issue. Instead, it reviewed the evidence and found that there was no probable cause to arrest the defendant because his words and actions did not violate the disorderly conduct statute. The State contends that the Court of Appeals exceeded the permissible scope of review since the defendant did not raise the issue of sufficiency of the evidence to support the defendant\u2019s conviction. We disagree with the State\u2019s position.\nAlthough sufficiency of the evidence was not challenged in the lower court nor raised on appeal, the Court of Appeals may clearly consider such a question if it constitutes \u201cfundamental error.\u201d\nThe doctrine of fundamental error is resorted to in criminal cases only if the innocence of the defendant appears indisputable, or if the question of his guilt is so doubtful that it would shock the conscience to permit his conviction to stand.\nState v. Torres, 78 N.M. 597, 599, 435 P.2d 216, 218 (Ct.App.1967); State v. Sedillo, 81 N.M. 47, 462 P.2d 632 (Ct.App.1969), cert. denied, 81 N.M. 40, 462 P.2d 625 (1969).\nThe Court of Appeals found as a matter of law that the defendant\u2019s words and actions did not constitute disorderly conduct. Section 40A-20-1 states:\nDisorderly conduct. \u2014 Disorderly conduct consists of:\nA. engaging in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace . . .\nThe defendant was a passenger in the car when the officers began questioning the driver. He started asking in a loud voice why they were being stopped and harassed. He was angry and had his fist clenched, but he made no gesture or movement toward the officers. There was no evidence that a crowd was gathering, that the defendant was inciting belligerent behavior, or that the defendant was causing consternation or alarm. The statute contemplates conduct which tends to disturb the peace. As set forth in State v. Florstedt, 77 N.M. 47, 49, 419 P.2d 248, 249 (1966), a \u201cbreach of the peace\u201d is \u201c \u2018[A] disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community. . . .\u2019\u201d See also, State v. Oden, 82 N.M. 563, 484 P.2d 1273 (Ct.App.1971).\nHere, no act of violence was attempted. The officer stated that he arrested the defendant because he was getting angry \u201cand with his actions I didn\u2019t know that at any time he might go ahead and become combative.\u201d But at the time of the arrest the defendant was not \u201ccombative,\u201d nor was it apparent that his words or actions would produce violence or disturb the peace. Norwell v. City of Cincinnati, 414 U.S. 14, 16, 94 S.Ct. 187, 188, 38 L.Ed.2d 170 (1973) states, \u201c[0]ne is not to be punished for nonprovocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer.\u201d We feel that this principle applies here and agree with the Court of Appeals that there was no probable cause for the arrest and that there was insufficient evidence to sustain the conviction.\nHowever, we cannot agree with the second conclusion reached by the Court of Appeals. The Court of Appeals held that the defendant was not guilty of battery upon a police officer under \u00a7 40A-22-23. Section 40A-22-23 provides:\nBattery upon a peace officer is the unlawful, intentional touching or application of force to the person of a peace officer while he is in the lawful discharge of his duties, when done in a rude, insolent or angry manner.\nThe Court of Appeals reasoned that since the arrest was illegal the search was illegal, and the officers were not acting in the \u201clawful discharge of their duties.\u201d\nEven if the arrest was illegal, we cannot condone the use of force in resisting every subsequent act made in good faith by a law enforcement officer. In this case, the search was conducted by booking officers according to regular jail procedures. There is no evidence that the booking officers were acting in bad faith or using unreasonable force. Police officers acting in good faith, although mistakenly, should be relieved of the threat of physical harm.\nSelf-help measures undertaken by a potential defendant who objects to the legality of the search can lead to violence and serious physical injury. The societal interest in the orderly settlement of disputes between citizens and their government outweighs any individual interest in resisting a questionable search. United States v. Ferrone, 438 F.2d 381, 390 (3rd Cir. 1971), cert. denied, 402 U.S. 1008, 91 S.Ct. 2188, 29 L.Ed.2d 430 (1971). Accord, State v. Hatton, 116 Ariz. 142, 568 P.2d 1040 (1977); State v. Miller, 282 N.C. 633, 194 S.E.2d 353 (1973). One can reasonably be asked to submit peaceably and to take recourse in his legal remedies.\nWe hold that a private citizen may not use force to resist a search by an authorized police officer engaged in the performance of his duties whether or not the arrest is illegal. The question remains whether the use of force in resisting a search pursuant to an illegal arrest constitutes a battery upon a police officer acting in the \u201clawful discharge of his duties,\u201d as set forth in \u00a7 40A-22-23.\nThe meaning of \u201clawful discharge of his duties\u201d was discussed in State v. Frazier, 88 N.M. 103, 537 P.2d 711 (Ct.App.1975). The policeman in Frazier admitted that, prior to stopping the defendant, he had no grounds to believe the defendant was committing or had committed a criminal offense. Nor was any evidence of suspicious activity offered by the State. The policeman was intervening in what was actually a civil matter. When the defendant resisted, the policeman placed her under arrest. Since the police officer had no legitimate reason for stopping the defendant, the Court of Appeals found that the police officer was not acting in the lawful discharge of his duties. Thus, the Court held that the defendant was not guilty of \u201cresisting . . any peace officer in the lawful discharge of duties,\u201d under \u00a7 40A-22-1, N.M.S.A. 1953 (Repl.1972).\nThe facts in the case before us are clearly distinguishable from those in Frazier. Here, the police officer was conducting a search pursuant to routine jail procedures. The State had a legitimate interest in requiring that a person undergo a search pri- or to custodial confinement. Such a search was necessary for the protection of the officers in charge of the facility, to prevent escape, and for the protection of the other inmates. See, Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). We hold that a police officer conducting a search prior to confinement is engaged in the lawful discharge of his duties as required by \u00a7 40A-22-23.\nAn arrest undertaken without probable cause does not vitiate all the authority of the arresting officer. Even if an arrest is effected without probable cause, a police officer is engaged in the performance of his official duties if, \u201c[h]e is simply acting within the scope of what the agent is employed to do. The test is whether the agent is acting within that compass or is engaging in a personal frolic of his own.\u201d United States v. Heliczer, 373 F.2d 241, 245 (2d Cir. 1967), cert. denied, 388 U.S. 917, 87 S.W. 2133, 18 L.Ed.2d 1359 (1967). Accord, United States v. Martinez, 465 F.2d 79 (2d Cir. 1972); State v. Hatton, supra. A police officer who makes an arrest should not lose all his authority if the arrest is subsequently judged to be unlawful. Police officers must be free to carry out their duties without being subjected to interference and physical harm.\nHere the police officer was clearly acting within the scope of what he was employed to do. Thus, we affirm the defendant\u2019s conviction for battery upon a police officer acting in the lawful discharge of his duties.\nThe Court of Appeals also held that the trial court erred in committing the defendant to the Boys\u2019 School in excess of the statutory maximum set forth in \u00a7 13-14-35, N.M.S.A. 1953 (Repl.1976). We agree with the Court of Appeals on this point and affirm its decision.\nTherefore, we affirm in part and reverse in part the decision of the Court of Appeals as stated above. We hold that the defendant\u2019s conviction for disorderly conduct is reversed, his conviction for battery on a police officer is affirmed, and his commitment in excess of the statutory limit is improper. We remand this case to the district court for further proceedings in accordance with this opinion\nIT IS SO ORDERED.\nSOSA, EASLEY, PAYNE and FEDERICI, JJ., concur.", "type": "majority", "author": "McMANUS, Chief Justice." } ], "attorneys": [ "Toney Anaya, Atty. Gen., Charlotte Hetherington Roosen, Asst. Atty. Gen., Santa Fe, for petitioner.", "John B. Bigelow, Chief Public Defender, Martha A. Daly, Asst. Appellate Defender, Santa Fe, for respondent." ], "corrections": "", "head_matter": "583 P.2d 464\nSTATE of New Mexico, Petitioner, v. John DOE, a child, Respondent.\nNo. 11983.\nSupreme Court of New Mexico.\nSept. 6, 1978.\nToney Anaya, Atty. Gen., Charlotte Hetherington Roosen, Asst. Atty. Gen., Santa Fe, for petitioner.\nJohn B. Bigelow, Chief Public Defender, Martha A. Daly, Asst. Appellate Defender, Santa Fe, for respondent." }, "file_name": "0100-01", "first_page_order": 136, "last_page_order": 140 }