NMAGO 05-05.

• Case Date: November 15, 2005
• Court: New Mexico

New Mexico Attorney General Opinions 2005. NMAGO 05-05. November 15, 2005OPINION OF PATRICIA A. MADRID Opinion 05-05By: Arthur W. Pepin Assistant Attorney General Director, Criminal Appeals Division To: Honorable Kari BrandenburgOffice of the District Attorney, 2nd District 520 Lomas Blvd. NWAlbuquerque, NM 87102 QUESTION: Whether a law enforcement officer may arrest, without a warrant, an offender who committed a misdemeanor domestic violence offense and left the scene prior to the officer's arrival? If so, what-if any-special considerations are there attendant to such an arrest?CONCLUSION: Police officers have statutory authority to arrest an offender for these misdemeanors provided that the arrest is reasonably prompt and reasonably necessary to protect the victim. The Family Violence Protection Act embodies strong public policy when it requires officers to take steps to protect the victim of domestic violence, including arrest of the abuser when appropriate. The "at the scene" language in the misdemeanor arrest statute should not be read to contradict this public policy. Although a legislative change to make the law even clearer would be helpful, the arrest authority as provided in current law appears to be only limited by what is reasonable under the circumstances. FACTS AND BACKGROUND: The question presented applies in the common fact pattern where, when police respond to a reported act of domestic violence, they encounter the victim but not the aggressor. At the scene, usually informed by reports from the victim or other witnesses, the police learn or suspect the aggressor can be found at a location where they can go and find the aggressor. Some officers feel constrained by the law from arresting the aggressor in these circumstances unless the aggressor is found physically right at the scene of where the domestic violence occurred. ANALYSIS: Police officers are usually limited when making a misdemeanor arrest by the requirement that the misdemeanor be committed in the officer's presence, a rule created by the courts and not required by either the New Mexico Constitution or the United States Constitution. See Boone v. State, 105 N.M. 223, 226, 731 P.2d 366 (1986) ("We long have held that, in the absence of statutory authority, a duly authorized peace officer may make an arrest for a misdemeanor without a warrant only if he has probable cause or reasonable grounds to believe that the offense has been committed in his presence"). New Mexico has adopted a number of statutory exceptions to this rule. The exceptions include statutes authorizing misdemeanor arrests for shoplifting and for one at the scene of a motor vehicle accident. See NMSA 1978, Section 30-16-23 (1965) ("law enforcement officer may arrest without warrant any person he has probable cause for believing has committed the crime of shoplifting"); NMSA 1978 Section 66-8-125 (1978) (officer may arrest without a warrant "any person present at the scene of a motor vehicle accident" where officer has "reasonable grounds to believe the person committed a crime"). The question presented here concerns the misdemeanor arrest authority of police in domestic violence situations. The two primary sources for such authority are found in the Family Violence Protection Act and in the Criminal Procedure Act's warrantless arrest...