                    THE    ATTORNEY    GENERAL
                              OF TEXAS

.nm MAnox                      August 29, 1988
ATMRNEY   OENERAL

   Honorable W. S. McBeath                       Opinion No.   JR-948
   Administrator
   Texas Alcoholic Beverage Commission           Re:    Authority of the
   P. 0. Box 13127, Capitol Station              Alcoholic Beverage Com-
   Austin, Texas 78711                           mission to prorate club
                                                 membership for purposes
                                                 of determining   permit
                                                 fees for a private club
                                                 registration permit
                                                 (RQ-1432)

   Dear Mr. McBeath:

        Your request    letter describes    the   along-standing
   practice   of   the   Alcoholic   Beverage   Commission    of
   "prorat[ing] each member's membership for that portion     of
   the year during which he or she was a member" for purposes
   of calculating the permit fee due from private clubs ~issued
   permits under chapter 32 of the Alcoholic Beverage      Code.
   you ask whether the Commission is "presently authorized    or
   required to continue" this practice.

        Section 32.02 of the      Alcoholic Beverage Code        provides
   in part:
                                  .
                (b) The permit fee shall be based on the
            hiuhest number    f m mbers in good standing
            during the year Tar zhich permit fee is to be
            paid according to the following rates:

              0   to   250--$ 750        651 to   750--82,250
            251   to   350--$1,050       751 to   850--$2,550
            351   to   450--$1,350       051 to   950--$2,850
            451   to   550--$1,650       951 to l,OOO--$3,000
            551   to   650--$1,950 Over l,OOO--$3 per member.

               (c) All fees collected pursuant to this
            section shall be deposited in the general
            revenue fund.

                                    p. 4784
Honorable W. S. McSeath - Page 2     LX-9481

           (d) No later than 90 days before the
        expiration of the year for which the permit
        fee is paid, the permit holder may submit an
        amended application with as much additional
        fee as is required under the amended return.
        (Emphasis added.)

        The commission's request as to the propriety of contin-
uing its practice         of prorating membership for determining
permit fees was apparently prompted by arguments of persons
in the State Auditor's office that permit          fees should be
based on the hiahe t n mber of members during the year
pursuant to subsectik         (E) of section 32.02, and not on a
DrOrated     UM3mberShi.D    ficure, the latter method    possibly
resulting in a loss-of rGvenue legally due to the state from
the permitting process.

     The commission   in its request letter        has advanced
arguments in support of its continuing the         proration of
membership method   of fee calculation, which      arguments we
summarize as follows:

     Prior to 1971, and prior to the codification in 1977 of
the Alcoholic Beverage Coded,.the Texas Liquor Control Act
provided that permits   of the sort issued to private   clubs
expired on the next August      31 following   the dates of
issuance.   Penal Code art. 666-13(a),      (repealed); art.
666-15e(6), (repealed).    At that time, article    666-15(b)
provided that if a fee was %ollected   for a portion of the
year" . . . "only the proportionate part of the fee levied
for such permit shall be collected.*q Also, article 666-15e,
applying specifically   to private club permits,     required
proration of private  club permit fees pursuant to article
666-15(b).

     In 1971, article 666-13(a) was amended to     provide  that
all permits expired one year from the date         of issuance.
Acts 1971, 62d Leg., ch. 65, 5 7, at 686. But      the proration
provisions of articles 666-15(b) and 666-15e,      cited above,
were not amended or repealed at that time.

     In 1977, the provisions of the Texas Liquor Control Act
were repealed and many of its provisions    codified as the
Alcoholic Beverage  Code. Acts   1977, 65th Leg., ch. 194.
The provision that all permits expire one year from the date
of issuance became,   at that time, section 11.09 of the
Alcoholic Beverage Code. The' proration provisions of former
articles 666-15(b) and 666-15e were, however, omitted   from
the new code. The revisor's note, appearing after section
11.71 of the Alcoholic    Beverage Code, states that the

                               p. 4785
Honorable W. S. McBeath - Page 3   (JM-948)

proration provisions were omitted in the code because    the
1971 amendment providing that permits expire one year from
the date of issuance made the proration provisions obsolete.

     The commission argues that "since 1962, some nine years
prior to the 1971 amendments and fifteen years before      the
codification of the Texas Alcoholic Beverage Code," it has
followed the practice     of prorating memberships    for fee
determination purposes.     It argues, in effect,    that the
proration provisions,    which were not repealed until    1977
with the adoption of the Alcoholic Beverage Code, have auth-
orized its practice of prorating membership and that since
those provisions were *'substantive," their omission from the
Alcoholic Beverage Code was due to an error of the revisors.
In light of provisions in the code, in the act adopting    it,
and in the Government Code, to the effect that the Alcoholic
Beverage Code was only non-substantive revision      of prior
law, the commission    argues, in effect, that the proration
provisions, being substantive,    constitute still subsisting
law authorizing    the    commission*s  membership   proration
practice.  See, Alto. Bev. Code 5 1.01(a); Acts 1977, 65th
Leg., ch. 194, 5 7, at 558; Gov't Code g 323.007(b).       The
commission also argues that the long-standing practice      of
the commission, based on its construction of the provisions
discussed above, supports such construction, particularly in
view of the non-intervention of the legislature over that
time, citing,   inter alia    Stenhens COUntv  v. Hefner,  118
Tex. 397, 16 S.W.2d 804'(Tex. Comm'n App. 1929, opinion
adopted).1

     We disagree with the commission's position.  "The rule
that a departmental   ruling adhered to through    years of
administering a statute will be given weight, only applies
to statutes    of   doubtful   construction.l'   ~A11
Associated Retail Credit Men of Austin, 41 S.W.!d 45Um(Tez:
Comm'n App.  1931).   We do not find that the provisions
governing calculation  of club membership for purposes   of
assessing a permit fee have ever supported the construction
placed on them by the commission in adopting its proration
method of calculating the number of members, and thus, the
amount due for the permit fee.

     1. The commission    notes that separate  substantive
amendments to the Liquor Control Act in 1977 left the
proration provisions unchanged. Acts 1977, 65th Leg., ch.
453.

                             p. 4786
Honorable W. S. McBeath - Page 4    (JX-948)

       The provisions  for issuance of private    club permits
were first adopted    in 1961, and that legislation made the
substantially identical provision,     that calculation of the
fee is based on "the highest number of members         in good
standing during the year," as is currently made in section
32.02 of the Alcoholic Beverage Code. Acts 1961, 57th Leg.,
ch. 262, § 1, at 560. We believe that even in 1961, when
the proration provision of repealed article 666-15(b) was in
effect, the proration provision had no applicability to the
calculation of a club's membership.       Article 666-15(b)  on
its face provided only for proration of the fee where a fee
was collected    for a portion   of a year. We believe      the
commission's adoption of a practice in 1962 of proratina the
nEmberShiD   was unwarranted by any logical reading of the
controlling provisions,    particularly   since the provision
which is now section 32.02 cf the code has provided       since
its inception in 1961 that the fee "shall be based on the
hiahest number of members."

     We do concede that not all of the     provisions   of the
Alcoholic Beverage  Code are models of     clarity.     Section
32.16 provides, for example:

           No private club registration permittee may
        allow its averaae membership to exceed that
        authorized by its permit.   (Emphasis added.)

     It would appear somewhat anomalous to have provided  in
section 32.02 that the permit fee is based on the hiahest
number of members, but in section 32.16 that a permittee may
not allow its averaae membership to exceed that authorized
by the permit. However, section 32.16 is not applicable   to
the fee calculation under section 32.02. It appears,   rath-
er, to operate in conjunction with section 32.17, subsection
(a)(S), which provides  that a permit may be cancelled    or
suspended on a finding that the permittee club has violated
any provision of the code.    EiSSalso  section 1.05 of the
code providing criminal penalties for a violation of a pro-
vision of the code.)

     We also concede that the fee assessment      provisions
themselves present certain administrative difficulties   for
the commission.. Subsection (b) of section 32.02 indicates
on its face that "[t]he permit   fee shall be based on the
hiahest number of members in good standing during the year
for which the permit fee is to be paid." A permit    expires
one year after the date it issued. Alto. Bev. Code 5 11.09.
However, since the fee is payable in advance at the time of
the application  for a permit or renewal permit     (section
11.35), the calculation  of the fee "based on the highest

                              p. 4787
,

    Honorable W. S. McBeath - Page 5   (JM-948)

    number of members . . . during the year for which the permit
    fee is to be paid" is necessarily        only an estimate.
    Subsection (d) of section 32.02, providing      for "amended
    applications" no later than ninety days before a permit's
    expiration, somewhat but not entirely mitigates the problem
    of assessing a fee based on the highest number of members
    during the year since the membership cannot be ascertained
    with certainty until the nn8 of the year in question.    The
    commission has informed us that it has found the subsection
    (d) amendment procedure insufficient for determining  actual
    amounts due on permit fees under subsection (a), because the
    membership might change after submission    of the amended
    application, and because the procedure     led to frequent
    overpayment of fees.   Amounts overpaid,  once deposited   in
    the general revenue fund, could not be reimbursed    without
    legislative action. Tex. Const. art. VIII,     9 6.  Similar
    administrative problems exist under the present procedure.

         The commission informs us that, instead of following
    the subsection   (d) amendment procedure, it has relied on
    routine audits of licensees once accurate membership figures
    are available at the end of the permit year. However,    the
    method of calculation     used, even in such audits,     for
    determining club membership for purposes of fee assessment
    has apparently been the membership proration method referred
    to above rather than one determining the hiahest number of
    members during the year pursuant to the language          in
    subsection (b).2

         But again, even granting that the fee assessment
    provisions present  administrative difficulties,  we do not
    believe that those provisions    are or have been ambiguous
    such that the board was warranted       in construing    the
    requirement of section 32.02(b), that the fee "shall be
    based on the highest number of members,"    as authority  to
    base the fee determination on a prorated membership figure.

         2. Please note that we do not address, because you do
    not raise, any issues with respect to the operation of the
    amendment  procedure  provided  for in subsection     (d) of
    section 32.02 or with respect to the commission's   practice
    of determining additional fees due by use of a routine audit
    rather than the amendment procedure.

                                 ~7.4788
Honorable W. S. McBeath - Page 6     (JM-948)

                                                                    .-,

                       SUMMARY

           The Alcoholic Beverage Commission is not
        authorized to prorate private club membership
        for purposes  of determining  the permit   fee
        under Alcoholic Beverage Code section   32.02.
        Under section 32.02, the permit fee is based
        on the hj,g&&    number of members    in good
        standing during the year for which the permit
        fee is to be paid, rather than on a prorated
        membership figure.              .

                                        JIM     MATTOX
                                        Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LCUMCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAELBY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General

                              p. 4789


253 F.2d 771
CITY OF DAYTONA BEACH, Appellant,v.GANNETT FLEMING CORDDRY AND CARPENTER, Inc., Appellee.
No. 16758.
United States Court of Appeals Fifth Circuit.
April 7, 1958.
Rehearing Denied May 16, 1958.

John R. Parkinson, Parkinson & Sessions, Daytona Beach, Fla., for appellant.
Paul E. Raymond, Daytona Beach, Fla., William A. Hamilton, Jacksonville, Fla., Raymond, Wilson & Karl, Daytona Beach, Fla., and Jennings, Watts, Clarke & Hamilton, Jacksonville, Fla., of counsel, for appellee.
Before RIVES, TUTTLE and JONES, Circuit Judges.
TUTTLE, Circuit Judge.

1
This is an appeal by the City of Daytona Beach, the plaintiff, from orders dismissing and striking certain tort allegations of its complaint without leave to amend and denying its motion for summary judgment and granting defendant's motion for summary judgment upon plaintiff's restitution claim. In this action the City seeks to recover from the defendant, a corporation composed of engineers, damages for the defendant's willful or reckless or negligent performance of its duties under a contract and certain alleged overpayments made to the defendant pursuant to the contract.

2
The defendant was engaged by the City during 1949-1950 to design, supervise, and inspect the construction of a citywide paving and street improvement program.1 The actual construction was done by three other corporations not parties to this litigation. During 1949 and 1950 the defendant submitted various invoices to the City covering claimed expenses and fees under the contract terms, which were paid by the City. The principal item of contention involved in the overpayment claim concerns the contract clause which entitled the engineers to "3% of the estimated cost, to be revised upward or downward when the final construction cost is known." The City accepted a bid from a contractor for $2,340,849.66 which was finally let at $2,242,099.66, and had the 3% compensation been computed upon this amount the engineers would have received $67,262.00. However, when the work was completed by the contractors the total payments amounted to $2,020,542.64, which figure, if controlling, would have entitled the engineers to $60,616.28. The City maintains that the last mentioned figure is the "final construction cost" and that the defendants were overpaid by $5,383.72 since they received $66,000. The City further contends that rent for the defendant's Daytona Beach office and the salary for the stenographer in the Daytona Beach office as well as part of the salaries of the president and vice president of the defendant charged to the job were improper items under the "cost plus" part of the contract. The then City Manager and City Engineer settled with the defendants with the result that the City paid a $66,000 fee on the original contract, a $7,197.52 fee for subsequent plans for storm sewers, and all the overhead expenses claimed by the engineers which amounted to $62,691.14. The members of the then city commission approved these dealings informally, and there is now a question of proper authority. In the stricken allegations the City alleged that the engineers performed their work in such a negligent, reckless, or willful manner as to thereby cause unnecessary expenses and a defective final product.

3
The initial issue is whether, as a matter of tort law, the plaintiff has stated a claim upon which relief may be granted in regard to the acts of the defendant in the performance of its duties under the contract. It appears clear to us that such a claim has been presented and that the motion to strike and dismiss should have been denied. Under the Federal Rules of Civil Procedure, 28 U.S. C.A., detailed pleading is not required, and once a legal duty appears, it is sufficient against a motion to dismiss to allege that the defendant acted in a negligent manner and as a result the plaintiff was injured. Carss v. Outboard Marine Corporation, 5 Cir., 252 F.2d 690; Des Isles v. Evans, 5 Cir., 200 F.2d 614; Augusta Broadcasting Co. v. United States, 5 Cir., 170 F.2d 199. A complaint must be held sufficient if, on any view of the allegations, plaintiff states facts sufficient to entitle him to relief. Guth v. Texas Co., 7 Cir., 155 F.2d 563. And negligence, recklessness, and willfulness may be pleaded in the alternative. Official Form 10, F.R.C.P. Appendix of Forms 28 U.S. C.A.; Moore's Federal Practice ¶ 8.31.

4
By alleging the contract provision by which the defendants undertook to prepare specifications, to inspect and supervise construction, and the representation by the engineers that they were a nationally recognized engineering organization with vast experience and possessing requisite skill and knowledge to perform the engineering work, plaintiff has alleged a duty and standard of care owed to it by the defendant. The complaint alleges breach of this duty in several instances. The engineers, it is maintained, recommended the use of Trinidad Lake asphalt cement, the price of which was over two and one-half times that of petroleum asphalt cement and which was not of a superior quality and was no longer being recommended for paving work in Florida, facts which competent engineers did know or should have known. Further, it is claimed that defendant failed to insert a provision in the specification included in the contract with the contractor whereby the contract prices of asphalt courses would be reduced in the event the percentages of asphalt cement used should be reduced, and that by the exercise of ordinary skill and care the defendant should have known this failure would increase plaintiff's costs. When less asphalt cement was used, plaintiff, under the specifications could receive no reduction, and its costs were unnecessarily increased. Moreover, it is alleged that the engineers allowed defective concrete pipe to be used and the joints in the piping to be cemented in a manner not according to specifications. It is claimed that the engineer's plans for laying asphalt courses over the old brick streets were negligently drawn because they should have known that this surface would not remain long on this base. The plaintiffs have attached photographs to their complaint in an effort to demonstrate that the asphalt surfaces did slide off of the brick over which they were laid. The complaint also alleges that the defendant falsely or negligently certified to the plaintiff that the contractor was entitled to increases in the prices of certain materials. It is claimed that as a proximate result of defendant's alleged negligent or willful acts and omissions plaintiff's costs were increased, and the defective paving has cracked so that it will soon have to be replaced, and the storm sewers have already required repairs and replacement.

5
Thus it appears that the plaintiff has alleged enough facts to set out a sufficient cause of action against the defendant for breach of duty either by negligence, recklessness, or willfulness. Under the allegations of the complaint the engineers owed a duty to their employer to exercise and apply their skills and ability, judgment and taste, reasonably and without neglect. See Bayshore Development Co. v. Bondfoey, 1918, 75 Fla. 455, 78 So. 507, L.R.A.1918D, 889.

6
Holding as we do on the tort allegations, we must then find that the grant of the motion for summary judgment was improper. Upon reinstating these stricken allegations into the complaint there are, of course, contested issues of fact concerning them. It thus becomes evident that the litigation was not ripe for summary judgment. The affidavits presented to the court below by the defendants in support of their motion for summary judgment pertained only to the restitution issue.

7
To determine whether the plaintiff can recover any of the alleged overpayments the court below will have to decide several issues which we have not as yet considered. We think we should not do so until the trial court expressly passes on these matters. It must ascertain whether Sections 124 and 1252 of the Charter of the City of Daytona Beach are applicable in this case to require competitive bidding and a formal resolution of the city commission. The affidavits of the City Clerk show that these requisites were not met in this instance or at the time of hiring of other engineering consulting firms since 1944. Appellees contend that the exception, "other than the compensation of persons employed by the city," includes an engineering organization that only provides plans and personal services; that if the clause were intended to exclude from the section only regular salaried employees it could have stated so in a more explicit manner. If the agreement with the engineers must comply with the terms of these sections, the trial court must decide whether the original acts and the subsequent agreements and settlements between the parties are ultra vires and void on the part of the municipal corporation, since there appeared to be no competitive bidding and no formal resolution of the city commission. Depending on its decision on this issue, the court, even if the agreements were authorized, might have to ascertain whether the City can recover its payments on theories of mistake of fact, mistake of law, or fraud. This question presents issues of fact. Then if a recovery would be permitted in general, there would have to be a determination of whether there were actual overpayments in the individual instances. This would require an interpretation of the clause "3% of the estimated cost, to be revised upward or downward when the final construction cost is known," as to whether the amount actually paid by the city to the contractor or the amount for which the contract was to be let were to be used. Interpretation would also be needed for the clause of the cost plus agreement "the actual cost would not include solicitation, rent, taxes, clerical, or accounting help, or costs of any nature of our Harrisburg office" as to whether the intent had been to exclude the enumerated items only to the extent that they pertain to defendant's Harrisburg office or as to the Daytona Beach office as well. All of these matters, if reached, should first be resolved by the trial court.

8
The order and judgment of the district court are reversed and the case is remanded for further proceedings not inconsistent with this opinion.

Notes:

1
 The relevant portions of the agreement are as follows: Charges and Payment for Engineering Work —
We agree to accept as full payment for the services rendered under this proposal the following:
For study and report — $7,000.
For detailed plans and specifications — 3% of the estimated cost, to be revised upward or downward when the final construction cost is known.
For inspection and supervision of construction — Actual cost plus 50%.
Under this item, the actual cost would not include solicitation, rent, taxes, clerical or accounting help, or costs of any nature of our Harrisburg office. The actual costs would include only those items which would be directly chargeable to the work. We would plan to employ one survey corp; an inspector for the mixing plant and for each place the contractor was working; a Chief Engineer; and monthly supervision from our main office.

2
 "Sec. 124. Expenditures in Excess of Five Hundred Dollars
"When an expenditure other than the compensation of persons employed by the city, exceeds five hundred dollars, such expenditures shall be first authorized and directed by resolution of the city commission, and no contract involving an expenditure in excess of such sum shall be made or awarded except upon the approval of the city manager and the city commission, and all improvements, materials, supplies and work of all kinds and for any purpose done, rendered, supplied or performed for said city (not including work done in the operation of any of the city departments) amounting to more than five hundred dollars, shall be let by contract to the lowest and best responsible bidder, according to written specifications previously prescribed therefor and after publication in a newspaper of general circulation one time of a notice calling for such bids, the first publication to be not less than ten days before the date for the receiving of such bids, and any contract made in violation of this section shall be invalid and unforceable; provided that if the city commission shall, after receiving bids for such improvements, materials, supplies and work as aforesaid be of the opinion that the bids are excessive, unreasonable or increase the cost of such improvements, materials, supplies and work over the actual cost thereof if done or supplied by the city itself, or be of the opinion that there is reasonable ground for suspecting or believing that there exists a combination of bidders to unduly increase the cost thereof, or prevent free competition among said bidders, then the city commission may reject any and all such bids and authorize the improvements, materials, supplies and work to be done, furnished or performed by the city in any manner prescribed by the city commission without the necessity of asking for additional bids.
"Sec. 125. Alteration Or Modification Of Contracts.
"When in the opinion of the city manager it becomes necessary for the prosecution of any work or improvement under the contract, to make alteration or modifications in such contract, such alterations or modifications if made shall be of no effect until the price to be paid for the work or material, or both, under altered or modified contract has been agreed upon in writing and signed by the contractor and by the city manager and approved by the city commission."


209 U.S. 419 (1908)
STICKNEY
v.
KELSEY, COMPTROLLER OF THE STATE OF NEW YORK.
No. 196.
Supreme Court of United States.
Submitted March 20, 1908.
Decided April 6, 1908.
ERROR TO THE SURROGATES' COURT IN AND FOR THE COUNTY OF NEW YORK, STATE OF NEW YORK.
Mr. Edward Mitchell for plaintiffs in error.
Mr. David B. Hill for defendant in error.
MR. JUSTICE MOODY delivered the opinion of the court.
This is a writ of error to a Surrogates' Court of the State of New York. The judgment brought under review was entered in obedience to a judgment of the Court of Appeals of that State. The judgment imposed a transfer tax upon certain real property devised by the will of Joseph Stickney, deceased. The tax was properly assessed if an act purporting to be passed on March 16, 1903, 1 Session Laws of 1903, p. 165, was a duly enacted law of the State. It appears that, by the constitution of the State, laws of the nature of this one require for their due enactment a majority vote in each legislative chamber when three-fifths of the members are present. The presiding officers of both branches of the legislature, in certifying that this bill was duly passed by a majority vote, failed to certify that three-fifths of the members were then present. *420 The defendant in error was permitted, over the objection of the plaintiffs in error, to prove that the journals of the two houses showed that the requisite number of members were, in point of fact, present. This the Court of Appeals held to be sufficient to show that the statute was validly enacted. The first five assignments of error in this court simply allege in various forms that the Court of Appeals erred in its decision of the cause. These assignments may be summarily overruled upon the plain ground that they present no Federal question. It must not, however, be understood that we intimate that any form of assignment would have given this court the authority to review the determination of the highest court of a State of the proper method of proving the existence of its own laws. Town of South Ottawa v. Perkins, 94 U.S. 260; Railroad Co. v. Georgia, 98 U.S. 359; Post v. Supervisors, 105 U.S. 667; In re Duncan, 139 U.S. 449; Wilkes County v. Coler, 180 U.S. 506.
There is, however, a sixth assignment of error. For its understanding it is necessary to make a further statement of facts. When certified copies of the journals of the two houses were offered in evidence, for the purpose of showing that at the time of the passage of the bill three-fifths of the members were in fact present, notwithstanding the omission of the presiding officers to certify to their presence, counsel for plaintiffs in error made the following objection: "I object on the ground that the paper offered is incompetent, irrelevant and immaterial; that the original journal, if produced, is not a record either at common law or by the statute, and cannot be introduced in evidence, and cannot be resorted to by the court for the purpose of either validating or impeaching any law, and that the legislative law makes the certificates of the presiding officers conclusive evidence as to whether the majority were present or three-fifths, and the conclusive evidence is that there was only a majority present and not three-fifths." The objection was overruled, the evidence was admitted, and an exception was taken. It will be observed that no objection *421 was taken that the original journals were not produced, but only that if produced they were not admissible to add to or vary the certificates of the presiding officers, which were conclusive as to the numbers present. The judgment of the Surrogate, which was in writing, and of the Appellate Division of the Supreme Court, proceeded upon this view of the objection, and treated the question exactly as if the original journals had been offered. But the judgment of the Court of Appeals indicates that there it was objected, for the first time as far as the record discloses, that the original journals were not produced and that the certified copies were not competent evidence of their contents. The inference that such a question was raised can only be drawn from the concluding part of the opinion. After deciding that the presence of the requisite number of members could be provided by recourse to the journals, and that the journals showed the fact, the court said: "It is contended, however, that the authenticity of the journals of the Legislature, certified copies of which were put in evidence, was not established, and that with the failure of any original record certified extracts therefrom were not competent. Without expressing any opinion on this objection, it is sufficient to say that the question has now been set at rest by the enactment, since the argument of the appeal, of Chapter 240 of the Laws of 1906, p. 471, which in express terms declares the printed copies to be the originals journals of the two houses, and makes them, or copies thereof, competent evidence when certified by the respective clerks of the Senate and Assembly." A motion for rehearing was made and denied. Based upon this part of the opinion, a supposed Federal question is alloged in the sixth assignment of error in this court, which is as follows:
"VI. That the said Court of Appeals of the State of New York erred in holding and deciding that the motion for reargument and for a hearing on the validity and effect of Chapter 240 of the Laws of 1906 should be denied; by reason of which denial the said Court of Appeals has, in effect, held:
*422 "(a) that Chapter 240 of the Laws of 1906 should be construed to have a retroactive effect, and
"(b) that such construction would not be in violation of the Fourteenth Article of the Amendments to the Constitution of the United States and,
"(c) would not impose and exact a tax without due notice and without due process of law, and
"(d) that the State would not by such act and such construction thereof deprive the plaintiffs in error of property without due notice and without due process of law; each of these grounds having been stated in the notice of said motion by the plaintiffs in error, who then and there insisted upon their constitutional rights in such respects as soon as the occasion arose."
We do not intend to intimate that, if the words of the opinion were capable of the meaning which is attributed to them in this assignment of error, there would have been shown any violation of the Fourteenth Amendment. League v. Texas, 184 U.S. 156. But we think, in view of the fact that when the copies of the journals were offered in evidence no objection had been made that the originals were not produced, the language of the court may quite as naturally be interpreted as a declination to pass on a question, not necessary to the decision, which had been set at rest for the future by legislation. The best that can be said for the plaintiffs in error is that the action of the court was ambiguous. We resolve the ambiguity against the parties complaining, who are bound to show clearly that a Federal right was impaired, rather than misuse our ingenuity to spell out a Federal question to aid a defense which is merely technical and destitute of substantial merit.
It does not therefore appear that the judgment under review was based upon the decision of any Federal question. Bachtel v. Wilson, 204 U.S. 36.
The writ of error is
Dismissed.


961 A.2d 1290 (2008)
RAYBUCK
v.
RAYBUCK.
No. 2322 WDA 2007.
Superior Court of Pennsylvania.
August 22, 2008.
Affirmed.


57 F.3d 561
75 A.F.T.R.2d 95-2738, 63 USLW 2800,95-2 USTC  P 50,334
UNITED STATES of America, Plaintiff-Appellant,v.Daniel A. WRIGHT and Lois W. Wright, Defendants-Appellees.
No. 94-3547.
United States Court of Appeals,Seventh Circuit.
Argued April 4, 1995.Decided June 14, 1995.

Thomas E. Kieper, Asst. U.S. Atty., Indianapolis, IN, Gary R. Allen, William S. Estabrook, Kevin M. Brown (argued), Douglas W. Snoeyenbos, Dept. of Justice, Tax Div., Appellate Section, Washington, DC, for U.S.
Duane R. Denton, Karl L. Mulvaney (argued), Mary H. Watts, Nana Quay-Smith, Bingham, Summers, Welsh & Spilman, Indianapolis, IN, for Daniel A. Wright and Lois W. Wright.
Before RONEY,* BAUER, and EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge.

1
Empire Wood Company, a partnership, entered bankruptcy in 1982.  A plan of reorganization confirmed in 1984 promised payment of back taxes.  But in 1985 Empire Wood collapsed without satisfying its tax obligations.  The United States filed this suit in 1993, seeking to collect Empire Wood's 1982 taxes from Lois and Daniel Wright, who it asserts were among Empire Wood's general partners.  (The Wrights deny being partners, but for current purposes we must assume that they were.)   The district court dismissed the suit as untimely.  868 F.Supp. 1070 (S.D.Ind.1994).

2
Eleven years is a long time, but Congress has given the Internal Revenue Service breaks denied normal creditors.  Until 1990 the statute of limitations for the collection of tax debts was six years from assessment.  That year Congress increased the period to ten years.  Pub.L. 101-508, amending 26 U.S.C. Sec. 6502(a).  The extension became effective on November 5, 1990.  Section 11317(c) of Pub.L. 101-508, 26 U.S.C. Sec. 6323 note, provides that the longer period applies only to claims not then time-barred.  The district court believed that the IRS's claims were defunct by November 5, 1990.  So they were--if measured from the dates of assessment in 1982 and 1983.  But the IRS relies on 26 U.S.C. Sec. 6503(h):

3
The running of the period of limitations provided in section 6501 or 6502 on the making of assessments or collection shall, in a case under title 11 of the United States Code, be suspended for the period during which the Secretary is prohibited by reason of such case from making assessment or from collecting and--

4
(1) for assessment, 60 days thereafter, and

5
(2) for collection, 6 months thereafter.

6
The IRS believes that it was prohibited by "title 11 of the United States Code"--that is, by the Bankruptcy Code of 1978--from collecting the taxes during the bankruptcy and for as long as Empire Wood was making payments under the plan of reorganization.  So much seems clear.  The IRS was subject to the automatic stay;  it filed a claim in the bankruptcy;  its debt was scheduled;  the terms of the plan of reorganization replaced the terms of the prior debts, In re Jartran, Inc., 886 F.2d 859 (7th Cir.1989);  the IRS had to abide by the terms of the plan and could not swoop in to seize assets as soon as the plan had been confirmed.  11 U.S.C. Sec. 1141(a).  Cf. In re Penrod, 50 F.3d 459 (7th Cir.1995).  Not until Empire Wood turned turtle in 1985 could the IRS levy on the assessments.  Less than six years remained before November 5, 1990.  The district court allowed that under this line of reasoning the IRS could have proceeded against Empire Wood in 1993.  But it thought Sec. 6503(h) inapplicable to the Wrights.  They were not debtors in bankruptcy, and the United States could have collected from them in 1983.  The automatic stay does not apply to guarantors, sureties, insurers, partners, and other persons liable on the debt.  National Tax Credit Partners, L.P. v. Havlik, 20 F.3d 705, 707 (7th Cir.1994).  Because the United States had never been "prohibited by reason of [the bankruptcy] case from making the assessment or from collecting" from the Wrights, the district court held, the claim against them had expired by November 1990.  868 F.Supp. at 1073-74.

7
Confession and avoidance is the IRS's method of dealing with this conclusion.  It is willing to assume that it could have collected from the Wrights in 1983 and 1984.  That this concession is warranted is not altogether clear.  Indiana, where Empire Wood did business, apparently requires creditors to exhaust their efforts to collect from the partnership before turning to the partners.  Thompson v. Wayne Smith Construction Co., 640 N.E.2d 408 (Ind.App.1994) (favorably discussing the South Carolina rule to this effect);  Alan R. Bromberg & Larry E. Ribstein, 2 Bromberg & Ribstein on Partnership 5:59 (1994).  The marshaling rule is not universally praised.  See J. Dennis Hayes, The Revised Uniform Partnership Act:  Some Comments on the Latest Draft of the RUPA, 19 Fla.St.U.L.Rev. 727, 733-34 (1992).  Thompson hinted that Indiana would excuse exhaustion if the partnership were insolvent, 640 N.E.2d at 411 n. 5, which Empire Wood may or may not have been in 1983.  (A person with positive net assets may be a debtor in bankruptcy.)   We need not pursue the subject given the parties' joint assumption;  it turns out not to affect the decision.

8
Having conceded that it could have collected from the Wrights in 1983, the IRS argues that the period of limitations for tax debts is unitary.  To say that it has been extended for the taxpayer is to say that it has been extended for all persons who are secondarily liable--and partners in Indiana, which treats partnerships as entities, Husted v. McCloud, 450 N.E.2d 491 (Ind.1983), are derivatively rather than directly liable.  The argument entails two steps:  first that the debt to be collected from the Wrights is for "taxes," and so is governed by federal rather than state law, and second that the claim against derivatively liable persons remains alive under federal law so long as the taxpayer itself is liable.  The Wrights do not contest the first of these steps.  Ever since United States v. Updike, 281 U.S. 489, 50 S.Ct. 367, 74 L.Ed. 984 (1930), it has been understood that persons liable for someone else's taxes owe "taxes" themselves unless federal law supplies a different designation, such as "penalty."   For recent illustrations see In re Norton, 158 B.R. 834 (Bankr.D.Idaho 1993);  In re Ross, 122 B.R. 462 (Bankr.M.D.Fla.1990);  In re McManis, 70 B.R. 171, 175 (Bankr.E.D.Ky.1986).  Just in case there were doubt, the general six-year statute for "debts" due the United States provides that it does not apply to "actions brought under the Internal Revenue Code or incidental to the collection of taxes imposed by the United States."  28 U.S.C. Sec. 2415(h).

9
When multiple persons owe taxes on account of the same events, does the statute of limitations govern the debt as a whole, or does it apply separately to each obligor's circumstances?  Updike tells us that the governing principle is all-for-one, one-for-all.  After a corporation dissolved and distributed its assets to investors, a change in the Internal Revenue Code increased the firm's obligations.  The Court first held that the transferees owed the dissolved firm's taxes and were not "trustees" for the United States.  Next it tackled the Commissioner's argument that the statute of limitations--which concededly had expired for a suit against the corporation itself--did not start to run against the investors until the IRS demanded that they make good the firm's obligations.  The Court's response was curt:  "If by [statute] the period of limitations had run in favor of the corporation, it had run in favor of the transferees....  The clear intent of [the statute] ... was to designate the extent of time for the enforcement of the tax liability."  281 U.S. at 494-95, 50 S.Ct. at 369.   The statute under discussion in Updike was the predecessor to Sec. 6502, and changes in the decades since 1930 do not affect this result.  Updike did rely in part on a predecessor to 26 U.S.C. Sec. 6901 that is limited to transferees of taxpayers' assets.  This statute said that transferees' liability is to be "assessed, collected, and paid in the same manner and subject to the same provisions and limitations" as transferors' liability.  This reference to "limitations" is to substantive restrictions rather than the statute of limitations, but the Court took the provision as a signal that Congress wanted transferors and transferees treated similarly in other respects.  In the end, however, that similarity was achieved by an interpretation of the statute of limitations, which has broader implications.

10
Of course the holding of Updike is that if it is too late to sue the taxpayer, then it is too late to sue transferees derivatively liable for its taxes.  Today the question is whether, if a suit against the taxpayer would be timely, then suit is also timely against persons derivatively liable.  These questions could in principle have different answers, but United States v. Associates Commercial Corp., 721 F.2d 1094, 1096-98 (7th Cir.1983), holds that they do not.  Like our case, Associates involved the application of Sec. 6503 to debts that for one reason or another could not be collected from the taxpayer.  (Associates involved Sec. 6503(b), which suspends the period of limitations while the taxpayer's funds are in the control or custody of a court;  the difference between Sec. 6503(b) and Sec. 6503(h) is not important to our case.)   Although Associates did not cite Updike, it employed the same general approach, concluding that suits against persons derivatively liable for taxes are timely, or not, according to the rules for timeliness of suits against taxpayers.  It is hard to escape that conclusion, for both Sec. 6502 and Sec. 6503 establish rules for suing taxpayers;  they do not set up separate periods for persons secondarily liable.  Their structure presumes that there is only one period per tax debt, no matter how many different persons may be liable on the debt.  Arrangements outside the statute could multiply the number of periods;  for example, a particular investor may promise not to plead the statute of limitations, without extending the time to sue others who have not struck bargains with the IRS.  But there is only one underlying period.

11
At least, that is the law of our circuit.  United States v. Harvis Construction Co., 857 F.2d 1360, 1364-65 (9th Cir.1988), declined to follow Associates.   See also United States v. Hunter Engineers & Constructors, Inc., 789 F.2d 1436 (9th Cir.1986).  The formal ground of decision in Harvis is that 26 C.F.R. Sec. 31.3505-1(d)(1) disables the IRS from taking full advantage of the Updike principle when Sec. 6503 suspends the statute of limitations for persons who have personal liability under 26 U.S.C. Sec. 3505.  (Actually, Harvis did not cite Updike any more than Associates had.)  Associates thought the regulation invalid because in conflict with the statute;  Harvis thought that the application of Sec. 6503 suspensions to derivatively liable persons is an unprovided-for case that the Commissioner may resolve by regulation.  The Wrights invite us to revisit the subject and overrule Associates.   We decline;  Harvis does not persuade us.  The regulation establishes six years as a presumptive period for suit without discussing suspension, tolling, or related doctrines, making it hard to understand as an effort to fill a gap in Sec. 6503.  At all events, the Wrights do not rely on 26 C.F.R. Sec. 31.3505-1(d)(1), which addresses only lenders' liability for withholding taxes under 26 U.S.C. Sec. 3505.  Harvis also observed that another portion of Associates had been KOd by Jersey Shore State Bank v. United States, 479 U.S. 442, 107 S.Ct. 782, 93 L.Ed.2d 800 (1987), see 857 F.2d at 1365, but we are not aware of any principle that an error in one part of an appellate opinion deprives the whole opinion of precedential or persuasive force.

12
Regulations do not affect the Wrights' case one way or the other.  Arguments about good policy also do not matter--though we confess to puzzlement at the IRS's contention that federal law favors forswearing collection from partners until the partnership has run out of money.  A credible threat to collect from the partners would improve the prospect of collecting from the partnership, to the benefit of the Treasury.  Swift collection from partners also would preserve their right of subrogation, which becomes useless if the IRS does not dun them until the partnership's assets have been dissipated.  When deferral is sensible, most partners would waive their limitations defenses by contract to prevent execution on their assets, so the process would not necessitate nickel-and-dime levies.  Delay is regrettable;  partners' accounts should not be open for a decade plus, as they are under the Associates understanding of Sec. 6503.  That, however, is grist for the legislative mill;  the amendment to Sec. 6502 in 1990 tells us that Congress does not place a high value on the interest in peace.  The district court now must decide whether the Wrights were partners of Empire Wood at the critical time and, if so, how much they owe.

13
REVERSED.

*
 Hon.  Paul H. Roney, of the Eleventh Circuit, sitting by designation


                                                        I attest to the accuracy and
                                                         integrity of this document
                                                           New Mexico Compilation
                                                         Commission, Santa Fe, NM
                                                        '00'05- 16:11:57 2012.11.14
Certiorari Granted, November 2, 2012, No. 33,763

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-111

Filing Date: July 26, 2012

Docket No. 30,600

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

DANIEL ALMANZAR,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Neil C. Candelaria, District Judge

Gary K. King, Attorney General
Nicole Beder, Assistant Attorney General
Santa Fe, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                        OPINION

GARCIA, Judge.

{1}     Defendant appeals the district court’s denial of his motion to suppress evidence
removed from his pocket during a pat-down search. The district court found that the
evidence was discovered in a legal pat-down search and that in any event, it would have been
inevitably discovered in a search incident to arrest for the misdemeanor domestic battery
charge. We conclude that the removal of evidence from Defendant’s pocket exceeded the

                                             1
scope of a legal pat-down search for weapons. In addition, the officers were not statutorily
authorized to arrest Defendant for misdemeanor domestic battery without a warrant because
the arrest was not at the scene of the domestic disturbance. We therefore reverse and
remand.

BACKGROUND

{2}     We set forth the underlying events in the light most favorable to the ruling rendered
below. See State v. Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d 785. On December
1, 2007, Officers Fuller and Crafton of the Albuquerque Police Department were dispatched
to Central and San Pedro in Albuquerque to respond to a call regarding a domestic violence
incident between Defendant and his live-in girlfriend (Victim) in the parking lot at Tingley
Coliseum. At the time the officers were dispatched to investigate, Victim and Defendant had
both left the Tingley Coliseum parking lot and gone to two separate locations. Officer Fuller
located Victim outside a Walgreens store. Officer Crafton and Officer Cortesi located
Defendant at a nearby Circle K convenience store. The officers located both Victim and
Defendant within seven minutes after receiving the dispatch.

{3}    When Officer Fuller approached Victim, she was crying and holding her lower
abdomen on the left side. She said Defendant had kicked her at the Tingley Coliseum
parking lot, and she had walked to Walgreens to call the police. Victim knew that Defendant
had also walked away from the parking lot, but she did not believe that Defendant followed
her from the parking lot. Victim did not feel threatened by Defendant after they separated.

{4}     When Officer Crafton and Officer Cortesi approached Defendant at the Circle K,
Defendant put his hands in his front pockets and refused to remove them. At that time,
neither officer had any reason to believe Defendant was armed. However, because
Defendant was a suspect in a domestic violence incident, the officers escorted him outside,
handcuffed him, and conducted a pat-down search for weapons. Defendant was cooperative
and non-threatening during the pat-down search. Officer Crafton did not locate any weapons
during the pat-down search, but he did feel and remove a hard “golf ball-size thing” from the
right pocket of Defendant’s pants. Officer Crafton did not believe that the object in
Defendant’s pocket felt like a knife or a firearm. Nonetheless, Officer Crafton chose to
remove the object from Defendant’s pants because he did not know what it was. The object
appeared to be powdered cocaine.

{5}     Defendant was handcuffed and placed under arrest for possession of a controlled
substance with intent to distribute. See NMSA 1978, § 30-31-20(A)(3) (2006). Officer
Crafton chose to book Defendant only for the felony of possession of the cocaine and not the
misdemeanor domestic battery because it was a more serious charge. Had he not conducted
the original pat-down search of Defendant, Officer Crafton testified that he would have
arrested Defendant on the domestic battery charge and then conducted a search incident to
that arrest.

                                             2
{6}    Defendant moved to suppress the cocaine found in his pocket on the grounds that the
search violated the Fourth Amendment to the United States Constitution and Article II,
Section 10 of the New Mexico Constitution. At the hearing, Defendant argued that Officer
Crafton did not have grounds to conduct a protective pat-down for weapons and that he
exceeded the scope of any protective pat-down by removing an object that was clearly not
a weapon. Defendant also asserted that the officers did not have grounds to conduct a search
incident to a warrantless arrest because Defendant was not “at the scene” (the Tingley
Coliseum parking lot) of the domestic disturbance when he was arrested. He points out that
the exception to the warrant requirement set forth in NMSA 1978, Section 31-1-7(A) (1995)
only permits a warrantless arrest when the officer is located “at the scene” of the domestic
disturbance.

{7}      The district court did not enter any written findings of fact or conclusions of law.
Instead the court simply denied Defendant’s motion to suppress. At the suppression hearing,
the court orally concluded that the officers were justified in conducting a pat-down search
and removing the cocaine from Defendant’s pocket. The court said that the conduct was
justified because the officers were investigating a claim of domestic violence and because
Defendant’s refusal to remove his hands from his pockets was “curious.” The district court
further concluded that the officers conducted a de facto arrest for domestic violence when
they placed Defendant in handcuffs outside the Circle K convenience store, and that the
officers were statutorily authorized to arrest Defendant at that time. In doing so, the district
court chose to broadly interpret the “at the scene” language in Section 31-1-7(A) to include
the general vicinity or area where the incident occurred. Defendant entered a conditional
plea to trafficking cocaine (possession with intent to distribute) reserving his right to appeal
the denial of his motion to suppress.

DISCUSSION

A.      Standard of Review

{8}      We review the denial of a motion to suppress as a mixed question of fact and law.
State v. Williams, 2011-NMSC-026, ¶ 8, 149 N.M. 729, 255 P.3d 307. The appellate courts
“review the factual basis of the court’s ruling for substantial evidence, deferring to the
district court’s view of the evidence.” Id. However, our review of the district court’s legal
conclusions is de novo. Id.

B.      The Warrantless Search of Defendant

{9}    On appeal, Defendant argues that the district court erred in denying his motion to
suppress because neither the pat-down search nor the inevitable discovery doctrine
exceptions to the warrant requirement justified the warrantless search of his person. The
Fourth Amendment of the United States Constitution and Article II, Section 10 of the New
Mexico Constitution protect the right of the people to be free from unreasonable searches
and seizures. State v. Leyva, 2011-NMSC-009, ¶ 1, 149 N.M. 435, 250 P.3d 861. In the

                                               3
absence of an exception to the warrant requirement, we presume that warrantless searches
are per se unreasonable. State v. Weidner, 2007-NMCA-063, ¶ 6, 141 N.M. 582, 158 P.3d
1025. The burden is on the State to prove that a warrantless search was reasonable because
it was justified by an exception to the warrant requirement. Id.

1.     The Pat-Down Search

{10} We first address Defendant’s argument that the district court erred in denying his
motion to suppress based on the pat-down exception to the warrant requirement. Defendant
asserts that, in this case, conducting a pat-down search was unreasonable because the
officers had no reason to believe that their safety was in danger. Defendant further argues
that, even if the pat-down search was reasonable, it was unreasonable for Officer Crafton to
believe that the round object in Defendant’s pocket was a weapon, and its subsequent
removal exceeded the scope of a legal pat-down.

{11} The pat-down exception to the warrant requirement allows an officer to pat-down or
frisk a suspect for the limited purpose of locating weapons. State v. Vandenberg,
2003-NMSC-030, ¶¶ 22-23, 134 N.M. 566, 81 P.3d 19. A pat-down is conducted solely as
a safety precaution, and an officer may only pat-down a suspect when the officer has a
particularized and objective basis to believe the suspect is both armed and presently
dangerous. See id. A protective search is limited to what is necessary to discover weapons
that may be used to harm the officer or others nearby, and an officer may “remove a hard
object if by touch the officer remains uncertain as to whether the object might be a weapon.”
State v. Barragan, 2001-NMCA-086, ¶ 14, 131 N.M. 281, 34 P.3d 1157, overruled on other
grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110.

{12} We consider a particular officer’s conduct in conducting a limited pat-down for
weapons as reasonable when, under the same circumstances, “a reasonable, well-trained
officer” would have conducted a pat-down search. Vandenberg, 2003-NMSC-030, ¶ 23
(internal quotation marks and citation omitted). “If reasonable people might differ, we defer
to the officer’s good judgment.” Id. (alteration, internal quotation marks, and citation
omitted). In this case, we defer to Officer Crafton’s judgment to conduct a pat-down search.

{13} Defendant was generally cooperative and Officer Crafton had no specific information
that Defendant was armed or dangerous. Officer Crafton reasonably suspected that
Defendant was the primary aggressor in a domestic violence incident, and Defendant’s
behavior in hiding his hands in his pockets was suspicious. Thus, it was reasonable for
Officer Crafton to be concerned that Defendant might be armed or dangerous and to conduct
a protective pat-down for weapons. Cf. Barragan, 2001-NMCA-086, ¶ 13 (holding that an
officer who was investigating a reported burglary was justified in handcuffing the defendant
while conducting a protective search to determine whether the defendant was in fact armed);
State v. Chapman, 1999-NMCA-106, ¶ 18, 127 N.M. 721, 986 P.2d 1122 (concluding that
an officer was justified in conducting a pat-down for weapons during a routine traffic stop
when a suspect’s behavior was erratic, nervous, and hostile); State v. Flores, 1996-NMCA-

                                             4
059, ¶ 17, 122 N.M. 84, 920 P.2d 1038 (noting that the nature of a crime may justify a pat-
down search even where the tip provided to officers does not mention weapons). Having
concluded that Officer Crafton was justified in conducting the protective pat-down search,
we consider whether retrieving the concealed round object from Defendant’s pocket
exceeded the proper scope of a pat-down search for weapons.

{14} A pat-down search must be “limited to that which is necessary for the discovery of
weapons which might be used to harm the officer or others nearby.” State v. Paul T., 1999-
NMSC-037, ¶ 17, 128 N.M. 360, 993 P.2d 74 (internal quotation marks and citation
omitted); see also Leyva, 2011-NMSC-009, ¶ 25 (reiterating that “[a] protective search is not
a search for evidence [and it] must be limited to its purpose of protecting the officers, and
the public, during the stop” (citation omitted)). After conducting a pat-down search, an
officer may remove an object from a suspect’s pocket only when the officer remains
uncertain as to whether an object is a weapon and the object’s size and density suggest that
it might be a weapon. See Paul T., 1999-NMSC-037, ¶ 18.

{15} In the present case, nothing in the record suggests that Officer Crafton suspected that
the object in Defendant’s pocket might be a weapon or that it was reasonable for Officer
Crafton to remove the object from Defendant’s pocket. Officer Crafton specifically testified
that although he did not know what the golf-ball size object in Defendant’s pocket was, it
did not feel like a weapon. Moreover, the State’s answer brief does not provide any
argument or authority to persuade this Court that Officer Crafton’s conduct in removing the
object was reasonable.

{16} We conclude that the State failed to establish that the golf-ball sized object located
in Defendant’s pocket was of such a size and density to reasonably be considered a weapon.
As a result, Officer Crafton did not have a reasonable basis for the intrusion into Defendant’s
privacy and removal of the round object from Defendant’s pocket. See id. ¶ 19. Officer
Crafton’s conduct exceeded the scope of a protective pat-down for weapons, and the district
court erred in concluding that the evidence was admissible based on the pat-down exception
to the warrant requirement.

2.     The Inevitable Discovery Doctrine

{17} We now address whether the district court properly denied Defendant’s motion to
suppress based upon an application of the inevitable discovery doctrine. Section 31-1-7(A)
authorizes a warrantless arrest for domestic battery only “when the officer is at the scene of
a domestic disturbance and has probable cause to believe that the person has committed an
assault or a battery upon a household member.” Defendant argues that his arrest was not “at
the scene of a domestic disturbance” because the altercation between Defendant and Victim
occurred at the Tingley Coliseum parking lot, and the officers did not come into contact with
Defendant until after Defendant and Victim had separated from one another and walked to
different business locations away from the Tingley Coliseum parking lot. Thus, we must
determine whether the district court’s broad interpretation of the “at the scene of a domestic

                                              5
disturbance” language in Section 31-1-7(A) was error. This issue appears to be one of first
impression.

{18} The question of whether Defendant was arrested “at the scene” pursuant to Section
31-1-7(A) is an issue of statutory construction that we review de novo. See State v. Saiz,
2001-NMCA-035, ¶ 2, 130 N.M. 333, 24 P.3d 365. When interpreting statutory language,
“our primary goal is to give effect to the intent of the [L]egislature,” and in so doing, “we
look first to the plain language of the statute.” Id. We will give “effect to the plain meaning
of the words of [a] statute, unless this leads to an absurd or unreasonable result.” State v.
Marshall, 2004-NMCA-104, ¶ 7, 136 N.M. 240, 96 P.3d 801. Finally, if more than one
section of the statute is involved, we will read all pertinent sections together so that all are
given effect. See Saiz, 2001-NMCA-035, ¶ 2.

{19}   Section 31-1-7(A) in its totality states:

       Notwithstanding the provisions of any other law to the contrary, a peace
       officer may arrest a person and take that person into custody without a
       warrant when the officer is at the scene of a domestic disturbance and has
       probable cause to believe that the person has committed an assault or a
       battery upon a household member. As used in this section, “household
       member” means a spouse, former spouse, family member, including a
       relative, parent, present or former step-parent, present or former in-law, child
       or co-parent of a child, or a person with whom the victim has had a
       continuing personal relationship. Cohabitation is not necessary to be deemed
       a household member for purposes of this section.

{20} The State asserts that the plain language of the statute and the “broad range of
remedies for domestic violence” support the district court’s broad interpretation of Section
31-1-7(A) and do not suggest a narrow construction. It argues that the Legislature enacted
Section 31-1-7(A) for the purpose of expanding police authority to make warrantless arrests
for misdemeanor domestic battery where probable cause has been established. The State
relies on NMSA 1978, Section 66-8-125 (1978) to provide support for its argument. The
State’s reliance on this motor vehicle statute to support its argument is misplaced.

{21} Section 66-8-125(A)(1) authorizes law enforcement to “arrest without [a] warrant
any person . . . present at the scene of a motor vehicle accident.” Notably missing from this
statutory language is any requirement that the arrest be made when the officer is at the scene
of the accident. It is the required presence of the arresting officer to be at the scene of a
domestic violence disturbance that distinguishes the statutory requirements under Section
31-1-7(A) from the more flexible language in Section 66-8-125. As a result, once reasonable
grounds have been established under Section 66-8-125(B), an officer may proceed with
reasonable promptness to arrest a person who had been present at the scene of the accident,
but who left the scene before the arrest is made. State v. Calanche, 91 N.M. 390, 393, 574
P.2d 1018, 1021 (Ct. App. 1978). The broader discretion allowed under Section 66-8-125

                                               6
was also recognized by the Supreme Court when it validated the arrest of a person made at
a house “near the scene of the accident” once the officer also established reasonable grounds
that a crime had been committed. City of Las Cruces v. Sanchez, 2009-NMSC-026, ¶¶ 10,
18, 146 N.M. 315, 210 P.3d 212 (noting that the individual had fled the scene of the accident
before the officers arrived). Calanche and Sanchez confirm that Section 66-8-125 authorizes
an officer who is not present at the scene of an accident to make an arrest at a location that
is away from the scene of the accident if all the other statutory requirements have been met.

{22} Section 31-1-7(A) is more narrowly drafted than its motor vehicle counterpart. This
statute only allows a warrantless arrest to take place “when the officer is at the scene of the
domestic disturbance.” This express limitation prohibits the arresting officer’s ability to
effectuate a warrantless arrest at locations away from the scene of a domestic disturbance.
We therefore conclude that the unambiguous language set forth in Section 31-1-7(A) does
not authorize an officer to make a warrantless arrest of a suspect at another location away
from the scene of a domestic disturbance.

{23} The policy reasons behind the broader language in the motor vehicle statute also
compels us to conclude that Defendant’s arrest was improper even though it occurred with
reasonable promptness and only a few blocks away from the location of the domestic
disturbance. As discussed in Sanchez, officers must be able to promptly locate and
investigate a DWI suspect because the evidence of intoxication fades over time. 2009-
NMSC-026, ¶ 15. In addition, it is also important to minimize the danger that a drunk driver
poses to the members of the public at large. See City of Santa Fe v. Martinez,
2010-NMSC-033, ¶ 16, 148 N.M. 708, 242 P.3d 275 (addressing the immediate and
continuing danger that a drunk driver poses to the public); State v. Contreras, 2003-NMCA-
129, ¶¶ 2, 14-15, 21, 134 N.M. 503, 79 P.3d 1111 (recognizing that the exigency of the
threat to public safety posed by a drunk driver will justify an investigatory stop based upon
an anonymous 911 tip from a concerned motorist who witnessed erratic driving).

{24} The State has not provided any authority recognizing policy concerns about the
dissipation of evidence outside the DWI context. The record in this case does not contain
any evidence that justifies an interpretation of Section 31-1-7(A) that would support a
Legislative intent to preserve dissipating evidence in order to allow warrantless arrests of
suspects at a location away from the scene of a domestic disturbance. While a person
suspected of committing a misdemeanor domestic battery may pose a threat to the victim or
others nearby, the Legislature did not express any intent to expand an officer’s arresting
authority based upon that consideration. In fact, the Legislature specifically granted the
officer statutory authority to undertake alternative measures in order to protect the victim.
NMSA 1978, § 31-1-7(C) (1995) (authorizing officers to protect victims by assisting them
with obtaining medical attention and finding shelter). It follows that the imminent threat that
typically persists in a domestic violence situation would be the threat to the safety of the
victim or other related family members and acquaintances. Thus, the statute attempts to
address these victim safety concerns. As a result, once the incident has concluded and the
suspect leaves the scene of a domestic disturbance, care for the victim has been identified

                                              7
by the Legislature as a policy consideration rather than any need to effectuate a warrantless
arrest of the suspect at another location.

{25} In summary, the dangers posed to the public by DWI are specific to that crime and
its severity, and the evidence in a DWI investigation, following a motor vehicle accident, is
uniquely time sensitive because a suspect may avoid prosecution by avoiding arrest for a
period of time. See Martinez, 2010-NMSC-033, ¶ 13; Sanchez, 2009-NMSC-026, ¶ 15.
 These policy concerns are less imminent in a domestic violence investigation when the
aggressor has left the scene. To accept the State’s argument that a warrentless arrest in the
general vicinity of the previous domestic battery is “near enough” even though both parties
have left the place where the battery occurred effectively renders the “at the scene” language
of Section 31-1-7(A) unnecessary. Cf. State v. Javier M., 2001-NMSC-030, ¶ 32, 131 N.M.
1, 33 P.3d 1 (rejecting the state’s interpretation of one portion of a statute when to do so
would render another part redundant or unnecessary, which is inconsistent with the rules of
statutory interpretation that no portion of a statute be rendered superfluous); State v.
Johnson, 1998-NMCA-019, ¶ 22, 124 N.M. 647, 954 P.2d 79 (recognizing that this Court
rejects interpretations of statutes that render parts of them meaningless or mere surplusage).
As a result, we decline to interpret the language of Section 31-1-7(A) as broadly as Section
66-8-125 has been interpreted. We hold that an officer may not arrest a suspect for domestic
battery under Section 31-1-7(A) without a warrant unless the officer is conducting the arrest
at the scene where the domestic disturbance occurred. See Webster’s Third New
International Dictionary 2028 (unabridged ed. 2002) (defining the word “scene,” in the
contest of this case, as “the place of occurrence or action”).

{26} In this case, Victim and Defendant had separated and were located in two different
public places away from the scene of the domestic battery when they encountered the
officers. Victim specifically told the officers that she no longer felt threatened by Defendant
and no further incidents occurred. Because the officers here encountered and arrested
Defendant at a location other than the Tingley Coliseum parking lot, Section 31-1-7(A) did
not provide authority for the officers to arrest Defendant for misdemeanor domestic battery
without a warrant. See State v. Romero, 2001-NMCA-046, ¶ 13, 130 N.M. 579, 28 P.3d
1120 (concluding that Section 31-1-7(A) did authorize a warrantless arrest where each of
three deputies observed signs of domestic violence at the location of the arrest). Thus, the
district court erred in concluding that the evidence would have been inevitably discovered
during a search incident to a legal arrest for misdemeanor domestic battery because such an
arrest could only have been effectuated at the scene where the domestic battery occurred.
See § 31-1-7(A).

CONCLUSION

{27} For the foregoing reasons, we reverse the district court’s order denying Defendant’s
motion to suppress.

{28}   IT IS SO ORDERED.

                                              8
                                          _____________________________________
                                          TIMOTHY L. GARCIA, Judge

WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

____________________________________
MICHAEL E. VIGIL, Judge

Topic Index for State v. Almanzar, No. 30,600

APPEAL AND ERROR
Remand
Standard of Review

CONSTITUTIONAL LAW
Fourth Amendment
Suppression of Evidence

CRIMINAL LAW
Controlled Substances
Domestic Violence

CRIMINAL PROCEDURE
Search and Seizure
Warrantless Search

                                         9


                                                                             FILED
                            NOT FOR PUBLICATION                               SEP 01 2015

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS

                             FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No. 14-10021

               Plaintiff - Appellee,              D.C. No. 2:06-cr-00441-GEB

 v.
                                                  MEMORANDUM*
ISAURO JAUREGUI CATALAN,

               Defendant - Appellant.

                    Appeal from the United States District Court
                        for the Eastern District of California
                   Garland E. Burrell, Jr., District Judge, Presiding

                            Submitted August 25, 2015**

Before:        McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.

      Isauro Jauregui Catalan appeals from the district court’s judgment and

challenges his guilty-plea conviction and 121-month sentence for conspiracy to

distribute and to possess with intent to distribute cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), 846. Pursuant to Anders v. California, 386 U.S. 738 (1967),

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Catalan’s counsel has filed a brief stating that there are no grounds for relief, along

with a motion to withdraw as counsel of record. Catalan filed pro se supplemental

briefs, and the government filed an answering brief.

      Catalan waived his right to appeal his conviction and sentence. Our

independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80

(1988), discloses no arguable issue as to the validity of the waiver. See United

States v. Watson, 582 F.3d 974, 986-88 (9th Cir. 2009). We accordingly dismiss

the appeal. See id. at 988.

      To the extent Catalan argues in his pro se briefs that counsel provided

ineffective assistance, we decline to address this issue on direct appeal. See United

States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011).

      Counsel’s motion to withdraw is GRANTED.

      DISMISSED.

                                           2                                     14-10021