2018 New Mexico Statutes
Chapter 29 - Law Enforcement
Article 1 - Peace Officers in General
Section 29-1-1 - Investigation of criminal violations; commencement of prosecution; cooperation; removal.

It is hereby declared to be the duty of every sheriff, deputy sheriff, constable and every other peace officer to investigate all violations of the criminal laws of the state which are called to the attention of any such officer or of which he is aware, and it is also declared the duty of every such officer to diligently file a complaint or information, if the circumstances are such as to indicate to a reasonably prudent person that such action should be taken, and it is also declared his duty to cooperate with and assist the attorney general, district attorney or other prosecutor, if any, in all reasonable ways. Such cooperation shall include the prompt reporting of all arrests for liquor law violations at licensed liquor establishments to the department of alcoholic beverage control. Failure to perform his duty in any material way shall subject such officer to removal from office and payment of all costs of prosecution.

History: Laws 1921, ch. 170, § 1; C.S. 1929, § 33-4433; 1941 Comp., § 40-101; 1953 Comp., § 31-1-1; Laws 1979, ch. 37, § 1.

Cross references. — For New Mexico mounted patrol, see 29-6-1 NMSA 1978 et seq.

For sheriffs generally, see 4-41-2 NMSA 1978 et seq.

For state parks and recreation areas, police powers of superintendent and state park and recreation commission employees, see 16-2-30 NMSA 1978.

For game laws, enforcement, see 17-2-19 NMSA 1978.

For trappers' and fur dealers' law, duty to enforce, see 17-5-8 NMSA 1978.

For disabled persons, search of person, clothing and effects for identifying device, see 28-8-2, 28-8-3 NMSA 1978.

For carrying of weapons by peace officers, see 30-7-2 NMSA 1978.

For resisting or obstructing an officer, penalty, see 30-22-1 NMSA 1978.

For forest fire laws, duties, see 30-32-3 NMSA 1978.

For uniformed guards of corrections department, peace officer powers, see 33-1-10 NMSA 1978.

For Detoxification Reform Act, see Chapter 43, Article 2 NMSA 1978.

For arrests under motor vehicle laws, see 66-8-122 NMSA 1978 et seq.

For livestock board, sheriffs and peace officers to execute orders of, see 77-3-2, 77-3-10 NMSA 1978.

Plainclothes officer can intrude when he observes truck driven erratically. — This section does not preclude plainclothes officer from making intrusion into pickup truck by opening a door where officer has observed truck being driven rapidly and in an erratic manner and, reaching truck after it has stopped, has observed that occupant appeared incoherent and lacked understanding of request to roll down window. Such facts warranted the officer, as person of reasonable caution, to open the pickup door. State v. Ray, 1977-NMCA-100, 91 N.M. 67, 570 P.2d 605, cert. denied, 91 N.M. 4, 569 P.2d 413.

Liability for failure to take proper actions. — A governmental entity and its law enforcement officers may be held liable, after receiving notice, for negligently failing to take adequate action to protect a citizen from imminent danger and injury because of failure to adopt proper procedures for responding to and investigating a reported criminal act. Schear v. Board of Cnty. Comm'rs, 1984-NMSC-079, 101 N.M. 671, 687 P.2d 728.

Liability for failure to cooperate with prosecutors. — The statutory obligations that officers cooperate with prosecutors and bring defendants before the courts are primarily designed to protect the public by ensuring that dangerous criminals are removed from society and brought to justice; accordingly, as with the duty to investigate crimes under this section, the duties of cooperating with prosecutors, diligently filing complaints, and bringing defendants before the courts inure to the benefit of private individuals, and the violation of these statutory duties may give rise to a cognizable claim under the Tort Claims Act, Sections 41-4-1 through 41-4-27 NMSA 1978. Weinstein v. City of Santa Fe ex rel. Santa Fe Police Dep't, 1996-NMSC-021, 121 N.M. 646, 916 P.2d 1313.

Liability for failure to detain intoxicated driver. — Law enforcement officers may be liable if they fail to detain an intoxicated driver, who then acts with the requisite level of intent to commit a battery while driving intoxicated. Blea v. City of Espanola, 1994-NMCA-008, 117 N.M. 217, 870 P.2d 755, cert. denied, 117 N.M. 328, 871 P.2d 984.

Immunity from liability for wrongful issuance of warrant. — Police officers and assistant district attorney were immune from liability for alleged wrongful issuance and service of a search warrant which was valid on its face in which court ordered police officers to search for child, take him into custody, keep him safely and make a return of the proceedings on the warrant. Torres v. Glasgow, 1969-NMCA-053, 80 N.M. 412, 456 P.2d 886.

Class of persons to be protected by duty to investigate. — In creating the duty to investigate, the legislature did not limit the traditional tort concept of foreseeability that would otherwise define the intended beneficiaries of the statute; all persons who are foreseeably at risk within the general population are within the class of persons to be protected by the duty to investigate. Torres v. State, 1995-NMSC-025, 119 N.M. 609, 894 P.2d 386.

When any person of the public, regardless of geographic location, is foreseeably at risk of injury by a party reported to be in violation of the criminal law, officers undertaking the investigation of the crime owe that person a duty to exercise the care ordinarily exercised by prudent and qualified officers. Torres v. State, 1995-NMSC-025, 119 N.M. 609, 894 P.2d 386.

Foreseeability of criminal act. — Since it is not unlikely that a murderer would flee the city in which he committed the crime and, given modern-day transportation, that this person would flee across state lines, and since the police knew or should have known that it is possible that a person who kills randomly with no motive would kill again, the harm in this case was not so removed from the conduct of the defendants that the court may say as a matter of law that the victims were unforeseeable; thus foreseeability is a question for the jury to determine by giving thought to, among other things, the time, space, and distance between the alleged failure to investigate and the deaths of the two victims. Torres v. State, 1995-NMSC-025, 119 N.M. 609, 894 P.2d 386.

Sufficiency of allegations in complaint. — Allegations in a complaint that sheriff deputies failed to apprehend a drunk driver or investigate a tavern disturbance, and that this failure proximately caused personal injury to the plaintiff's family, sufficed to state a cause of action for negligent violation of a right secured under New Mexico law for which Section 41-4-12 NMSA 1978 waives sovereign immunity. California First Bank v. State Dep't of Alcoholic Beverage Control, 1990-NMSC-106, 111 N.M. 64, 801 P.2d 646.

Constables may carry firearms because they are peace officers. 1963-64 Op. Att'y Gen. No. 63-117.

Magistrate or municipal court case may not be continued where appeal filed. — A peace officer who has prosecuted a criminal case in magistrate or municipal court may not continue to prosecute the case in district court after an appeal of the magistrate or municipal court judgment has been filed in district court. 1989 Op. Att'y Gen. No. 89-27.

Sheriff may file complaint without consent of district attorney. — The sheriff may file a complaint against a party for game law violation without first obtaining the consent of, or consulting, the district attorney. He should, before filing any criminal charge, consult his district attorney, except perhaps in cases of emergency where the sheriff waives a warrant on hearing in order to arrest someone who is believed about to leave the country. 1939-40 Op. Att'y Gen. 39-3257.

When district attorney has authority to appear in court. — The district attorney as chief law enforcement officer has the authority to appear in any case filed before any justice of the peace (now magistrate court) in any county in his district when, in his opinion, the interests of the people in his district require his participation in any case filed before a justice of the peace (magistrate) in said district. 1953-54 Op. Att'y Gen. No. 53-5669.

Law reviews. — For note, "Criminal Procedure - New Mexico Denies Fifth Amendment Protection to Corporations: John Doe and Five Unnamed Corporations v. State ex rel. Governor's Organized Crime Prevention Commission," see 23 N.M.L. Rev. 315 (1993).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 70 Am. Jur. 2d Sheriffs, Police, and Constables §§ 28 to 32, 46 et seq.

Constitutionality of authority for arrest by peace officers without a warrant, 1 A.L.R. 585.

Peace officers' criminal responsibility for killing or wounding one whom they wished to identify, 18 A.L.R. 1368, 61 A.L.R. 321.

Mobs, liability for failure to prevent killing by, 60 A.L.R. 873.

Territorial extent of power to arrest under warrant, 61 A.L.R. 377.

Personal immunity, validity and construction of legislation, conferring on police officers for acts in course of duty, 163 A.L.R. 1435.

Civil liability of law enforcement officers for malicious prosecution, 28 A.L.R.2d 646, 81 A.L.R.4th 1031.

Personal liability of sheriff, or his bond, for negligently causing personal injury or death, 60 A.L.R.2d 873.

Municipal liability for personal injuries resulting from police officer's use of excessive force in performance of duty, 88 A.L.R.2d 1330.

Liability of police officer or his bond for injuries or death of third persons resulting from operation of motor vehicle by subordinate, 15 A.L.R.3d 1189.

Nonfeasance: personal liability of policeman, sheriff or similar peace officer or his bond for injury suffered as a result of failure to enforce law or arrest lawbreaker, 41 A.L.R.3d 700.

Liability of prison authorities for injury to prisoner directly caused by assault by other prisoner, 41 A.L.R.3d 1021.

Sexual misconduct or irregularity as amounting to "conduct unbecoming an officer," justifying officer's demotion or removal or suspension from duty, 9 A.L.R.4th 614.

Liability for false arrest or imprisonment under warrant as affected by mistake as to identity of person arrested, 39 A.L.R.4th 705.

Right to compensation for real property damaged by law enforcement personnel in course of apprehending suspect, 23 A.L.R.5th 834.

When does police officer's use of force during arrest become so excessive as to constitute violation of constitutional rights, imposing liability under Federal Civil Rights Act of 1871 (42 USCS § 1983), 60 A.L.R. Fed. 204.

62 C.J.S. Municipal Corporations §§ 574, 575, 577, 578; 80 C.J.S. Sheriffs and Constables §§ 10, 18, 26, 35 to 42.