|This directive is for internal use only and does not enlarge an employee’s civil liability in any way. The directive should not be construed as creating a higher duty of care, in an evidentiary sense, with respect to third party civil claims against employees. Violations of this directive, if proven, can only form the basis of a complaint by the San Juan County Sheriff’s Office for non-judicial administrative action in accordance with the rules and laws governing employee discipline.|
|DIRECTIVE TYPE: Policy||SUBJECT: Arrests||NUMBER: OPER-329.00|
|APPROVED BY: Sheriff Ken Christesen||EFFECTIVE DATE: 6/25/2017|
|NMLEA STANDARDS: ADM.02.04||LAST MODIFIED: 5/24/2017||LAST REVIEW: 5/24/2017|
As defined in the Sheriff’s Office Limits of Authority Policy, “Deputies are authorized under NMSA 4-41-9 to discharge all the duties that belong to the Office of Sheriff.… These duties include: investigating violations of San Juan County ordinances and New Mexico State law; apprehending offenders and causing them to appear in court to answer charges; keeping the peace; and executing lawful civil processes.” This policy pertains to the legal requirements and procedures required when a deputy makes an arrest.
It is the policy of the San Juan County Sheriff’s Office that deputies will not detain, arrest, incarcerate, or otherwise restrain a person's liberty without clearly articulable legal grounds to do so.
The following definitions will apply for the purposes of this policy:
- Exigent – An emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. Exigency is presumed when a crime is witnessed by a deputy.
- Incapacitated – A person who, as a result of the use of alcohol or drugs, is unconscious or has their judgement otherwise so impaired that the person is incapable of realizing and making rational decisions.
- Intoxicated – A person whose mental or physical functioning is substantially impaired as a result of the use of alcohol or drugs.
- Probable Cause – Facts and circumstances within the arresting deputy's knowledge, sufficient to cause a prudent person to believe that a suspect has committed, is committing, or is about to commit a crime.
- Reasonable Suspicion – Less than probable cause but more than a mere hunch. Specific and articulable facts and inferences that would lead a reasonable officer to believe a person has been, is, or is about to be, engaged in criminal activity. The "reasonable officer" standard, is one in which an officer in the same circumstances could reasonably arrive at the same conclusion. A combination of particular facts, even if individually harmless, can form the basis of reasonable suspicion.
A powerful tool in the exercise of police authority is the use of discretion. Discretion can be effective in resolving problems and conflicts when used properly.
When making enforcement decisions, personnel should always consider the need to balance community concerns with the philosophy and mission of the Sheriff’s Office. Oftentimes, the best solution to a problem may not be in the form of an arrest or charge. The Sheriff’s Office mission has always been to solve community problems in the spirit of the law and not necessarily in enforcing the letter of the law for all circumstances.
All personnel are authorized and expected to use discretion in many areas including: to arrest or release on minor violations; to cite a traffic violator or release with a warning; how to settle minor disputes; and how to solve problems in their districts.
When faced with discretionary situations that require assistance, personnel will confer with supervisors. In the case of an animal control officer, this may mean conferring with a certified deputy or a supervisor. Bias or favoritism is not an acceptable component of discretion.
WARRANTLESS ARRESTS (ADMN.02.04)
Article II, Section 10 of the New Mexico Constitution offers greater protections than that of the Fourth Amendment to the U.S. Constitution, to include the requirements for a warrantless arrest to be lawful. Unlike the U.S. Constitution, New Mexico strongly favors warrants; however, the courts and Legislature have made exceptions for warrantless arrests under certain conditions as outlined below.
When a decision to make an arrest has been made, and there is no valid exception to the warrant requirement, deputies must obtain an arrest warrant or request a criminal summons for a subject they have probable cause to believe committed a crime.
A warrantless arrest for a misdemeanor is subject to the requirement that the offense be committed in the presence of the deputy. There are, however, certain statutory exceptions to this rule as follows:
- Assault, Battery, Public Affray or Criminal Damage to Property in a Licensed Premise (30-3-6);
- Shoplifting (30-16-23);
- Falsely obtaining services or accommodations (30-16-16);
- Assault or Battery against a Household Member (31-1-7);
- Violation of an Order of Protection (40-13-6D);
- DWI present at the Scene of a Motor Vehicle Accident or Failure to Stop in the Event of an Accident Causing Death, Personal Injuries, or Damage to Property (66-8-125 NMSA 1978). The Supreme Court of New Mexico has ruled that a law enforcement officer may arrest “without a warrant individuals who either are or were present at the scene of a motor vehicle accident, when the arresting officer has developed reasonable grounds [probable cause], through personal investigation, to believe that the individual committed a crime.” However, the arrest “must take place with reasonable promptness from the time of the accident…once the arresting’s officer’s investigation satisfies 66-8-125(B), the subsequent arrest of an individual pursuant to the officer’s investigation is valid if the arrest is made with reasonable promptness.” (Las Cruces v. Sanchez 2009)
Because of the seriousness of DWI (both misdemeanor and felony) and the danger it poses to the general public, the misdemeanor arrest rule of “in the presence” does not apply to DWI investigations. The Supreme Court of New Mexico has ruled that “Given the compelling public interest in eradicating DWI occurrences and the potentially deadly consequences, the crime of DWI should be treated as a felony for purposes of warrantless arrests.” (Santa Fe v. Martinez 2010)
DWI may also be charged when an intoxicated person is in actual physical control of a motor vehicle and the deputy can prove that there was intent to drive. (State v. Sims 2010)
31-1-7 NMSA 1978 authorizes deputies to make a warrantless arrest when the deputy is at the scene of a domestic disturbance and has probable cause to believe that the person has committed an assault or battery on a household member. The Supreme Court of New Mexico has further defined “at the scene” to mean reasonably close to the scene in respect to both distance and time. (State v. Almanzar 2013) Procedures for domestic violence arrests are detailed in the Sheriff’s Office Domestic Violence Policy.
A warrantless arrest may be made for a felony not committed in the deputy’s presence if the deputy has probable cause to believe a felony has been committed by the subject and there are exigent circumstances to justify the immediate arrest without a warrant.
The police-team rule allows for multiple law enforcement officers to work together to investigate a defendant’s criminal activity and use their collective effort to support probable cause for an arrest. Under this rule, a deputy may arrest for a crime committed in the presence of another law enforcement officer when their collective perceptions are combined to satisfy the presence requirement.
ENSURING CHILD SAFETY UPON ARREST
Pursuant to 31-1-8 NMSA 1978, a deputy who arrests an adult should inquire about the presence of any juvenile or dependent child who may be at risk as a result of the arrest.
Nothing in this policy negates parental rights to choose appropriate placement for their child(ren). Unless there is compelling evidence to the contrary (obvious drug use, weapons, or other indicators of an unsafe environment) parental discretion will be respected.
To minimize the disruption to, and ensure the safety of, children of an arrested parent or guardian, the following steps should be taken by deputies:
- Whenever it is safe to do so, the deputy should make the arrest away from the children or at a time when the children are not present.
- When a deputy makes an arrest, they will inquire about the presence of children or other vulnerable individuals for whom the arrested adult has responsibility.
- Whenever it is safe to do so, the deputy should allow the parent to assure their children that they will be provided care. If this is not safe or if the demeanor of the in-custody parent suggests this conversation would be non-productive, the deputy at the scene should explain the reason for the arrest to the children in age-appropriate language and offer reassurances to the children that both the parent and the children will be taken care of.
- When an arrest or search warrant is planned, the ages and likely location of the children should be considered when determining the time, place, and logistics of the arrest.
- If children are present at the arrest, or if the arrested parent indicates the children are or will be at home without an adult caretaker, the deputy will determine whether or not the other parent is available to care for the children. If not, the deputy will attempt to locate an adult relative or an adult not related by birth or marriage who has an emotionally significant relationship with a child who is willing to take responsibility for the children.
- Prior to releasing any juvenile to an alternate caregiver (other than to a non-arrested parent), a deputy will contact CYFD State Centralized Intake (SCI) at 1-800-797-3260 for information on any child abuse or neglect history of the potential caregiver as well as perform a “locals” and NCIC Triple I check. Convictions and/or pending investigations of sexual crimes or violence against children will make the adult ineligible to assume custodial care. Incidents of child abuse or neglect not amounting to a conviction or pending investigation should be carefully scrutinized with a supervisor to determine suitability.
- Deputies will contact a supervisor for assistance in determining whom to release a child to when the arrested parent is intoxicated or when there are concerns or conflicts with the alternate caregiver.
- If a non-arrested parent is not available, and there is not another adult to care for the child, the deputy will contact CYFD for assistance in placing the child.
- If a child is in school at the time of a parent’s arrest, the deputy will advise the School Resource Officer, the school principal, or the principal’s designee of the parent’s arrest and his/her stated preference for placement.
A deputy should consult with the shift supervisor when determining if a juvenile is old enough to care for themselves. Factors to consider include, but are not limited to:
- Age of the juvenile;
- Apparent mental state of the juvenile;
- Circumstances of the adult’s arrest (possible time of detention, level of crime, etc.);
- The juvenile’s means of transportation; and
- Any other relevant factors deemed pertinent.
The deputy will include in their report:
- Names and contact information for the adults with whom a child is left;
- Name of any CYFD workers or school personnel contacted; and
- Names and contact information for any family members identified whether or not the children are placed with them; this information is crucial for CYFD workers if future placement becomes necessary.
OUT OF STATE FUGITIVES
Deputies who contact a subject with confirmed out-of-state warrants which are entered into the National Crime Information Center (NCIC) may use this information as probable cause that the subject is an out-of-state fugitive in their presence and make a warrantless arrest if appropriate.
BOOKING DOCUMENTS (WARRANTLESS ARREST)
All warrantless arrests require a probable cause statement and a criminal complaint which are completed by the arresting deputy.
ALTERNATIVES TO ARREST
Deputies attempting to resolve unique problems to which they respond are allowed to seek alternatives to physical arrest when no hazard to the community, victim, or subject is likely to result. An example of this would be when a subject is admitted to the hospital for treatment. If that subject meets the criteria listed above, deputies have the discretion to use alternatives to arrest such as to have a summons or arrest warrant issued at a later time. Deputies may resolve non-violent petty and full misdemeanor situations with the issuance of a non-traffic citation or summons. Deputies may exercise the concept of verbal warnings on those traffic and simple petty misdemeanor offenses where the facts indicate proper resolution of the event can be achieved without formal charges.
WARRANT ARRESTS (ADMN.02.04)
Only deputies are authorized by this policy to execute arrest warrants. Deputies may arrest subjects on arrest warrants when the warrant is confirmed through the communications center or the deputy has the original in hand (if the warrant had not been entered into NCIC).
For warrants originating from outside of San Juan County, dispatch will ensure upon confirmation that the issuing agency will extradite.
BOOKING DOCUMENTS (WARRANT ARREST)
The arresting deputy will sign off on the original warrant or on certified copies sent from the communications center and provide it to the booking officer prior to returning to duty.
The use of a summons in lieu of a full custody arrest may prove to be effective in certain, limited situations. Using discretion, a deputy may request a magistrate court to summons an offender to appear in court. Based on the violation, a request for a summons will be in the following form:
- Traffic Violation – Uniform Traffic Citation.
- County Ordinance – Uniform Traffic Citation or Criminal Complaint. (Probable Cause Statement required.)
- Petty & Full Misdemeanors (State Statute) – Uniform Traffic Citation or Criminal Complaint. (Probable Cause Statement required.)
A deputy requesting a summons should ensure that “SUMMONS” is clearly indicated at the top of either the Uniform Traffic Citation or Criminal Complaint and that a current address is listed. For all summonses, the court will assign the date of appearance.
31-1-6 NMSA 1978 authorizes deputies to offer a person arrested for a non-felony offense to be offered the option of accepting a citation to appear in court in lieu of taking the person to jail.
When a citation is issued in person it must contain the name and address of the cited person, the offense charged, and the time and place to appear (which must be at least three days later unless the arrestee requests an earlier appearance). The deputy will explain the person’s rights not to sign a citation, the effect of not signing the citation, and the effect of failing to appear at the time and place stated on the citation.
When a non-traffic citation is issued, deputies must submit a probable cause statement to the court.
A deputy may not make a full custody arrest for most traffic offenses. 66-8-122 NMSA 1978 allows for a full custody arrest of a traffic offense under the following circumstances:
- Driving under the influence of intoxicating liquor or drugs;
- Failure to stop in the event of an accident causing death, personal injuries, or damage to property;
- Reckless driving;
- Refusal to give written promise to appear in court or acknowledge receipt of a warning notice; or
- Driving while suspended/revoked pursuant to a DUI conviction.
Furthermore, 66-8-123 NMSA 1978 requires deputies to issue a citation or warning and release any person who has violated the Motor Vehicle Code which is not an exception listed above.
If a deputy has probable cause to arrest for driving under suspension or revocation, a full custodial arrest is required if the suspension or revocation stems from a DWI conviction. However, if the driver’s license was suspended or revoked for any other reason, the deputy must release the driver after issuing a citation, absent a different reason to take the driver into custody.
When a citation is issued in person it must contain the name and address of the cited person, the offense charged, and the time and place to appear (which must be at least three days later unless the arrestee requests an earlier appearance). The deputy will explain to the person the option of paying a fine or going to court. If the person chooses to go to court the deputy will also explain the effect of not appearing in court at the time and place stated on the citation. The deputy must also explain that a signature is not an admission of guilt and, if the person refuses to sign, that such a refusal is grounds for arrest.
Citations are serial numbered and issued to deputies. A citation which becomes spoiled or issued in error will have “VOID” marked in large letters on its face, signed by the deputy, and turned in to records for tracking and storage.
Foreign Nationals and Diplomatic and Consular Officers: Procedures for the arrest of foreign nationals and diplomatic and consular officers are detailed in the Sheriff’s Office Consular Notification & Access Policy.
Military Personnel: In cases where a known military or civilian member of the United States Army, Navy, Air Force, Marine Corps, Coast Guard or Department of Defense is arrested, the shift lieutenant will, during regular business hours, notify the military police at the nearest investigative headquarters division as a courtesy to that organization.
Law Enforcement: When a member of another law enforcement agency is arrested by a deputy, a supervisor from the individual’s employing agency will be notified as soon as possible by the Sheriff’s Office shift supervisor. These procedures are detailed in the Sheriff’s Office Crimes Involving Law Enforcement Policy. The shift supervisor will also make the proper chain of command notifications pursuant to Sheriff’s Office Direction & Supervision Policy.
Mental Illness: As detailed in the Sheriff’s Office Crisis Intervention Policy, when any subject is experiencing an inability to cope with the symptoms of a mental illness or is in crisis, he or she may be detained and transported to an approved mental health facility when the requirements of 43-1-10 NMSA 1978 have been met.
When a subject who appears to be suffering from a mental illness has also committed a crime, the deputy, in consultation with his supervisor, must make the determination whether to pursue an emergency mental health evaluation or incarcerate the person on criminal charges. There are no clearly defined criteria for this decision which should be based on the following considerations:
- The seriousness of the offense;
- The extent of the subject's mental disability; and
- The immediate danger the subject presents to the public.
If a determination is made that the severity of the crime outweighs the immediate need for mental health assistance, and the subject is booked in at the jail, the arresting deputy will notify the booking officer of the mental health concern so the proper assistance can be sought.
If the need for immediate mental health assistance outweighs the severity of the crime, charges should not be filed until the deputy can consult with the District Attorney’s Office to determine the best course of action.
Regardless of whether the subject is incarcerated or transported to an approved mental health facility, the deputy will complete a CIT referral so follow-up can be conducted by the Sheriff’s Office Crisis Intervention Team.
Intoxicated/Incapacitated Subjects: An intoxicated subject may be released to the care of a sober, responsible adult or established facility when both parties agree.
No subject who is incapacitated will be released without a medical evaluation. Incapacitated persons may be committed to the hospital by deputies under the guidelines found in 43-2-8 NMSA 1978.
San Juan County Adult Detention Center requirements concerning the acceptance or refusal of arrestees for medical reasons also apply to persons so incapacitated by alcohol or drugs that their mental and/or physical functions are significantly impaired. In these cases, the arrestee will need to be cleared for jail by the hospital.
Juveniles: Procedures for the arrest of juveniles are detailed in the Sheriff’s Office Juveniles Policy.
CRIMES COMMITTED AT THE JAIL
When probable cause exists to charge an inmate with a crime committed at the jail, the deputy should obtain an arrest warrant. If the possibility exists that the inmate will make bond (for the crime they are incarcerated for) before the warrant can be obtained, a deputy may make a warrantless arrest by completing a probable cause statement and criminal complaint(s).
Jail guards are not considered peace officers for the purposes of the police-team rule. Furthermore, watching a crime occur on recorded video does not equate to a crime being committed in the deputy’s presence.
Pursuant to 31-1-5 NMSA 1978, following an arrest, a suspect is entitled to have reasonable opportunity to make three telephone calls beginning no later than twenty minutes after the time of arrival at a Sheriff's Office facility or place of detention. Deputies should not deny a suspect’s request to make a phone call from a Sheriff’s Office facility.
An incident report will be completed for all cases where a full custody arrest was made, a summons issued, a person transported to a mental health facility (as described in the Sheriff’s Office Crisis Intervention Policy), or transported to the hospital due to incapacitation. The report will be either in the form of a supplement to an existing case or a new report.
Intoxicated subjects transported to an established sobering facility or released to a sober adult do not require an incident report.
- SJCSO Policy ADMN-119 “Limits of Authority”
- Arrest without warrant; liability [31-1-7 NMSA 1978]
- Identification of minor or dependent children upon arrest; required inquiry; guidelines [31-1-8 NMSA 1978]
- State v. Almanzar, 2014-NMSC-001
- State v. Mitchell, 2010-NMCA-059
- SJCSO Policy OPER-324 “Domestic Violence”
- City of Santa Fe v. Martinez, 2010-NMSC-033
- State v. Sims, 2010-NMSC-027
- City of Las Cruces v. Sanchez, 2009-NMSC-026
- SJCSO Policy OPER-342 “Crimes Involving Law Enforcement”
- SJCSO Policy ADMN-121 “Direction & Supervision”
- SJCSO Policy OPER-337 “Crisis Intervention”
- Protective custody [43-2-8 NMSA 1978]
- SJCSO Policy OPER-331 “Consular Notification & Access”
- SJCSO Policy OPER-336 “Juveniles”
- Procedures on arrest; reports [31-1-5 NMSA 1978]
- Emergency mental health evaluation and care [43-1-10 NMSA 1978]
- State v Lyon, 1985-NMCA-082
- Disposition of citations [66-8-133 NMSA 1978]
- Citation in lieu of arrest without a warrant [31-1-6 NMSA 1978]
- Immediate appearance before magistrate [66-8-122 NMSA 1978]
- Conduct of arresting officer; notices by citation [66-8-123 NMSA 1978]