Background
In 2013, Deputy Glenn Russ, from the Curry County, New Mexico Sheriff's Office was wearing "a dress shirt with tie, dress slacks, and dress shoes" (the proscribed clothing of those in the "investigator" position that he was) while driving an unmarked official vehicle (though it did have a government license plate, sirens, and various inconspicuous police lights). He also had his deputy badge showing on his shirt pocket.
While driving, Russ spotted an individual who he thought had a warrant. Russ followed the vehicle the individual got into, and ran the license plate. The plate came back as not belonging to the individual Russ thought it was, though the plate was expired. Russ then turned on the flashing lights of his vehicle in an attempt to initiate a traffic stop for the expired plate. The driver of the vehicle, later identified as Roy Montano, did not stop. Instead, he proceeded to drive erratically: not stopping at stop signs and red lights, speeding, and jumping a curb.
When Russ' pursuit ended, and Montano was apprehended, Montano was charged with various crimes, including aggravated fleeing, which consists of "a person willfully and carelessly driving his vehicle in a manner that endangers the life of another person after being given a visual or audible signal to stop, whether by hand, voice, emergency light, flashing light, siren or other signal, by a uniformed law enforcement officer in an appropriately marked law enforcement vehicle in pursuit in accordance with the provisions of the Law Enforcement Safe Pursuit Act" and is a fourth degree felony.
Legal Standard
Montano was convicted of this crime, as well as others during his trial. The court's reasoning: "The court determined that displaying a badge was enough to be in uniform; the vehicle was appropriately marked because motorists know they have to pull over and stop when they see emergency lights flash."
The law that the court was referring to is NMSA 30-22-1(C), which states that "willfully refusing to bring a vehicle to a stop when given a visual or audible signal to stop, whether by hand, voice, emergency light, flashing light, siren or other signal, by a uniformed officer in an appropriately marked police vehicle" is a misdemeanor.
Therefore, it is not accurate that motorists must "pull over and stop when they see emergency lights flash." The emergency lights must be used by "a uniformed officer in an appropriately marked police vehicle." Thus the trial court avoided the question of whether Montano committed aggravated fleeing as defined in the law.
Montano appealed his conviction for aggravated fleeing.
Court of Appeals
The Court of Appeals considered whether Deputy Russ' behavior constituted a "uniform." They found that a uniform must consist of distinctive clothing. Because Russ' clothing was that of any individual who wears dress clothes for work it was not distinctive. Russ' badge, firearm, and handcuffs, although distinctive when taken together, are not clothing, and therefore are not part of a uniform.
The second question the Court considered was whether or not Russ' vehicle was "an appropriately marked law enforcement vehicle." The Court found that the vehicle was "appropriately marked" by virtue of its flashing lights, as only emergency vehicles may legally display flashing lights of the type that Russ' vehicle was equipped with.
Having found that Russ was not in uniform, the Court reversed Montano's conviction for aggravated fleeing.
Supreme Court
The State appealed the reversal to the Supreme Court. The Court found, for similar reasons as the Appeals Court, that Russ was not in uniform.
The Court then considered whether the vehicle met the standard for a conviction for aggravated fleeing. The Court found that the emergency lights and siren on Russ' vehicle did render it as an emergency vehicle, but not a law enforcement vehicle specifically. Because the aggravated fleeing statute requires "an appropriately marked law enforcement vehicle," the vehicle must be distinguishable as a law enforcement vehicle, and not the more general emergency vehicle.
Accordingly, the Court upheld the reversal of Montano's conviction.
The Practical Side
Under the State's proposed interpretation, anyone with a Dollar Tree police toy set, a megaphone from Harbor Freight, and some lightbulbs can attempt to chase after someone in a vehicle (albeit while impersonating a peace officer). Until the time that this impersonator chooses to activate their siren and lights, their vehicle would be indistinguishable from any other. Once they turn their lights on, a motorist, fearing a felony fleeing conviction, would be required to pull over for this impersonator.
Of course, if they didn't pull over, they wouldn't be charged with felony fleeing, as the vehicle isn't a "law enforcement vehicle." But the motorist cannot know that at the time. Uniforms and vehicle decals serve as a reassurance to a motorist that they are interacting with a legitimate law enforcement officer, not someone playing pretend.
Because the impersonator can go undetected until the time that they initiate the bogus stop, it would be impossible for a legitimate law enforcement officer to remove the impersonator from the road. On the other hand, a vehicle equipped with police decals, and a driver wearing a police uniform, runs the risk of being caught by legitimate law enforcement officers who say to themselves "wait a second, I've never seen this guy before, and that's not one of our cars."
Motorists fearing their personal safety may be justified in escaping from what could be an impersonator, but the State seeks to criminalize that behavior.
While it remains illegal to not pull over for a vehicle equipped with flashing lights, it rightly is legal to evade an improperly marked vehicle driven by a non-uniformed officer.
That's Just My Thought.
Here's our sources, so you can decide for yourself:
