Virtually everyone in Albuquerque has seen Ron Bell’s billboards and television commercials proclaiming his willingness to sue malefactors of all sorts; many of these include his catchphrase “I sue drunk drivers!”
So some people experienced a fair amount of schadenfreude when Mr. Bell was arrested for alleged driving while impaired in Albuquerque in 2010.
But it is Mr. Bell who appears to be having the last laugh. The Court of Appeals, in an opinion by Judge Hanisee, has held that the District Court properly suppressed evidence that was used to convict him in Metropolitan Court. See State v. Ron Bell (Sept. 9, 2014).
As the Court explains, the Supreme Court has interpreted the state constitution as providing greater protection to citizens during traffic stops than does the Fourth Amendment. Under New Mexico law, all questions asked during a traffic stop must be either related to the reason for the stop, or otherwise supported by reasonable suspicion.
The police officer who stopped Mr. Bell did so because he observed him, among other things, speeding and driving partially in the shoulder. The officer asked Mr. Bell if he was “under the influence,” which seems to have been proper, but then bizarrely asked him if he had any grenades, rocket launchers, or dead bodies. Mr. Bell answered “no” while shaking his head. This was a constitutional violation because the officer had no reason whatsoever to think Mr. Bell had any of these things in his car.
I’m not sure what to think about this decision. It does seem that the officer violated the New Mexico Constitution by asking these strange questions. But it’s not clear to me how Mr. Bell was harmed by the violation. The opinion doesn’t explain what role these questions, or Mr. Bell’s negative answers to them, had in bringing about his conviction.
And that may be because the State didn’t make it clear either. In paragraph 19, Judge Hanisee notes that the State didn’t argue that the conviction did not result from these questions, but restricted its appeal “to defending the propriety of the questions” the officer asked.
The other interesting part of the decision is its discussion of issue preservation. The State argued that Mr. Bell waived his claim because he did not specifically refer to the state constitutional provision during the suppression hearing. Judge Hanisee rejected this argument, noting that Mr. Bell had relied on the principle that the state constitution protects.
I agree with this part of the decision. Issue preservation should not be a matter of technicalities. If a party makes an argument, and the district court is aware of the argument being made, then it shouldn’t matter that the party’s attorney — in the heat of the moment at trial — didn’t use a particular “magic words” or cite a particular statute or constitutional provision. The key thing is that the trial court be made aware of the basis of the objection or argument, with sufficient clarity to make a ruling on it.
