{ "id": 1557033, "name": "STATE of New Mexico, Plaintiff-Appellee, v. John DOE, a child, Defendant-Appellant", "name_abbreviation": "State v. Doe", "decision_date": "1978-04-18", "docket_number": "No. 3393", "first_page": "109", "last_page": "112", "citations": [ { "type": "official", "cite": "92 N.M. 109" }, { "type": "parallel", "cite": "583 P.2d 473" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "64 N.M. 88", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5344679 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/nm/64/0088-01" ] }, { "cite": "78 N.M. 777", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320768 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0777-01" ] }, { "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": "80 N.M. 426", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5360046 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0426-01" ] }, { "cite": "414 U.S. 14", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11714834 ], "weight": 3, "year": 1973, "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, "opinion_index": 0, "case_paths": [ "/nm/77/0047-01" ] } ], "analysis": { "cardinality": 426, "char_count": 6292, "ocr_confidence": 0.791, "pagerank": { "raw": 9.25117092146263e-08, "percentile": 0.5111817329890661 }, "sha256": "8287b45d3296ccdd957a0a08c350fce96db0625847f2a857c3dff441a99332d3", "simhash": "1:354af4eaad48dde3", "word_count": 1059 }, "last_updated": "2023-07-14T17:06:13.817562+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. John DOE, a child, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nIn this Children\u2019s Court case, the child was found to be delinquent on the basis of disorderly conduct and battery upon a police officer. He was committed to the Boys\u2019 School. We discuss: (1) disorderly conduct; (2) battery upon a police officer; and (3) the commitment.\nDisorderly Conduct\nThe pertinent portion of \u00a7 40A-20-1, N.M.S.A.1953 (2d Repl.Vol. 6) reads:\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 .\nWe do not reach the claims that this statute is unconstitutional because the evidence does not show the child violated the statute.\nThe child was a passenger in a car, stopped on \u201csuspicion\u201d, after officers twice saw the car pull into the parking lot of a liquor store. While officers were conducting a \u201cfield interrogation\u201d of the driver, the child \u201cstarted in a very loud voice questioning why they were continually stopped, always being harassed and everything else.\u201d Asked several times to hold his voice down, the child did not comply. The \u201cloud voice\u201d continued even after the child was advised that he could be arrested for disorderly conduct.\n\u201cDue to his drawing attention to the officers and persons there from other people in the area, the subject was then placed under arrest and placed in the patrol vehicle. * * It was just the questioning of the stop and why he was always being harassed, but it was in a very loud voice that was bringing attention from surrounding areas close to our immediate area.\u201d\n\u201cHe did appear to be aggressive by clenching his fists at times while he was talking with us, but he never did make a move on an officer until we had made an attempt to put him under cuffs. * * * I could tell that he was becoming angered and with his actions I didn\u2019t know that at at any time he might go ahead and become combative.\u201d\nThe Children\u2019s Court referred to the child\u2019s \u201cgestures towards the police\u201d but there is no evidence of gesturing. The child used a loud voice, clenched his fists and was angry, but he never made a move on an officer prior to the arrest for disorderly conduct. The arresting officer could say no more than that he thought the child \u201cmight become combative\u201d in the future.\nThe conduct to which \u00a7 40A-20-1(A), supra, refers must be conduct which tends to disturb the peace. Up to the point of his arrest, the child\u2019s conduct had not been unlawful. There is no evidence that this conduct tended to cause consternation and alarm, or tended to produce violence so as to tend to disturb the peace and quiet of the community. See State v. Florstedt, 77 N.M. 47, 419 P.2d 248 (1966); State v. Oden, 82 N.M. 563, 484 P.2d 1273 (Ct.App.1971).\nNorwell v. Cincinnati, 414 U.S. 14, 94 S.Ct. 187, 38 L.Ed.2d 170 (1973) states:\n[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. Regardless of what the motivation may have been behind the expression in this case [the defendant\u2019s words], it is clear that there was no abusive language or fighting words. If there had been, we would have a different case.\nThe defendant\u2019s conduct \u2014 using a loud voice in questioning the stop and clenching his fists \u2014 did not amount to disorderly conduct and did not provide probable cause for such an arrest. The child was illegally arrested.\nBattery on a Police Officer\nTaken to the police station in a patrol car, the child was booked but refused to strip in order to be searched before being jailed. Officers forcibly removed the child\u2019s clothes. The child fought back. This fighting back is the basis for finding that the child committed battery upon a police officer.\nThe strip search was an incident of the child\u2019s illegal arrest for disorderly conduct. State v. Adams, 80 N.M. 426, 457 P.2d 223 (Ct.App.1969). That arrest being illegal, in this case the search was illegal.\nSection 40A-22-23, N.M.S.A.1953 (2d Repl.Vol. 6) defines battery upon a police officer to include an \u201cunlawful\u201d touching of a police officer \u201cin the lawful discharge of his duties\u201d. We need not consider wh\u00e9ther resisting an illegal search was unlawful action by the child. Clearly, an officer conducting an illegal search is not in the lawful discharge of his duties. Under the evidence, \u00a7 40A-22-23, supra, was not violated. See State v. Frazier, 88 N.M. 103, 537 P.2d 711 (Ct.App.1975).\nThe Commitment\nThe amended \u201cjudgment and disposition\u201d reads:\nIt is adjudged that the respondent is hereby committed to the New Mexico Boys\u2019 School at Springer, New Mexico for a period of two years.\nWhether this commitment be read as placing the child in confinement or merely ordering that the child be confined, see State v. Garcia, 78 N.M. 777, 438 P.2d 521 (Ct.App.1968), it was improper.\nSection 13-14-35(A), N.M.S.A.1953 (Repl. Vol. 3, pt. 1) states:\nA judgment vesting legal custody of a child in an agency shall remain in force for an indeterminate period not exceeding two [2] years from the date entered, except that not more than one [1] year in an institution for the housing of delinquent children may be authorized without further order of the court (Our emphasis.)\nCompare \u00a7 13-14-35(F) and (H).\nThe amended judgment was improper to the extent it purported to commit the child to an institution for housing delinquent children for more than one year.\nHowever, the remedy for the improper commitment would be to correct the commitment, not discharge the child. See Shankle v. Woodruff, 64 N.M. 88, 324 P.2d 1017 (1958).\nThe amended judgment and disposition is reversed because the evidence does not show disorderly conduct and because the child did not batter a police officer who was in the lawful discharge of his duties.\nIT IS SO ORDERED.\nHENDLEY and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Toney Anaya, Atty. Gen., Charlotte Hetherington Roosen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "John B. Bigelow, Chief Public Defender, Reginald J. Storment, Appellate Defender, Martha A. Daly, Asst. Appellate Defender, Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "583 P.2d 473\nSTATE of New Mexico, Plaintiff-Appellee, v. John DOE, a child, Defendant-Appellant.\nNo. 3393.\nCourt of Appeals of New Mexico.\nApril 18, 1978.\nToney Anaya, Atty. Gen., Charlotte Hetherington Roosen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nJohn B. Bigelow, Chief Public Defender, Reginald J. Storment, Appellate Defender, Martha A. Daly, Asst. Appellate Defender, Santa Fe, for defendant-appellant." }, "file_name": "0109-01", "first_page_order": 145, "last_page_order": 148 }