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February 18, 2008
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N.M. traffic stop leads to divisive court ruling

BY Jeff Proctor
Albuquerque Journal


There's an inkling of "The Dukes of Hazzard" in the case against Juan Marquez.

The whole thing started as an attempt at a routine traffic stop - ostensibly for a noisy muffler - in Dexter, a rural town with a population of about 1,200 in southeastern New Mexico. It ended with an aggravated DWI and other charges against the 34-year-old Marquez.

More than two years later, Marquez has beaten the DWI rap after the state Court of Appeals tossed the charge.

Why?

Because then-Dexter police officer James Seely ran out of pavement: He didn't get Marquez pulled over until Marquez had crossed out of city limits and was in Chaves County proper.

The Court of Appeals said that the rules of fresh pursuit didn't apply, and that Seely didn't have the authority to collar Marquez on suspicion of DWI because the initial traffic stop was based on a "non-arrestable offense."

The court then concluded that evidence from the "illegal stop" couldn't be used to prosecute Marquez for DWI.

Bo and Luke Duke - whose General Lee was always a step ahead of Sheriff Rosco P. Coltrane in the proverbial race to the Hazzard County line - would be proud.

Prosecutors, on the other hand, are feeling more like Boss Hogg after the Dukes once again thwarted him.

The Appeals Court ruling could negatively "affect the way law enforcement officers are allowed to do their jobs, particularly in rural parts of the state," said Assistant Attorney General Margaret McLean, who prosecuted the case.

"It unwittingly creates a safe haven for offenders as soon as they cross out of city limits," McLean told the Journal. "For public policy reasons, you want officers to be able to do what's necessary."

"This case is kind of like when kids are playing Marco Polo in the pool: If you cross a certain line, you're safe. I don't think that's what the Legislature or the Court of Appeals intended, but the practical implications of this case are the creation of that cross-jurisdictional safe haven."

Marquez, 34, was pulled over on the outskirts of Dexter on suspicion of a violation of city and state noise ordinances, police said.

Things escalated quickly.

After administering several field sobriety tests, Seely attempted to arrest Marquez, who resisted. Seely stunned Marquez with a blast of pepper spray, then Marquez "hit the officer in the chest."

Marquez was eventually subdued and charged with aggravated DWI, resisting arrest and battery on a police officer, according to court records.

He was found guilty Feb. 17, 2005, in Chaves County District Court of DWI and resisting arrest and acquitted of battery, court records show.

The Court of Appeals let the resisting arrest conviction stand, but the opinion, written by Judge Cynthia Fry, reversed the DWI charge. The case is now pending before the New Mexico Supreme Court.

Marquez's attorney, Kathleen Baldridge of the state Public Defenders Office, raised a single issue: "A municipal officer is not authorized under the Fresh Pursuit Act to conduct a traffic stop outside of the municipality for the violation of a municipal ordinance that is a nonarrestable, petty misdemeanor offense."

Baldridge's primary challenge was over the stop, not the arrest. Marquez's blood alcohol concentration was measured above 0.16 percent - more than twice the state's presumed level of intoxication.

Judge Fry agreed with Baldridge that Marquez's eventual arrest on suspicion of drunken driving came courtesy of a traffic stop that should never have happened.

Seely was cross-deputized as a Chaves County Sheriff's deputy - meaning he had authority to make arrests outside Dexter in the county.

Fry wrote that "the evidence of (Marquez's) intoxication was obtained by means of the initial, invalid stop. As such, the evidence of the DWI should have been suppressed as the fruit of the wrongful traffic stop, and the charge should have been dismissed."

McLean argues that whether the noisy muffler constituted an "arrestable offense" makes no difference because the intent of the traffic stop was to "investigate the misdemeanor offenses observed by Officer Seely."

"The fresh pursuit and traffic stop were based on the misdemeanor offenses," she said. "The arrest was based on facts separate from the misdemeanor offenses."

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