The question becomes whether a defendant’s independent criminal act was sufficiently "separate and distinct" from the officer’s initial unlawful act. See State v. Travison B., 2006-NMCA-146, ¶ 11, 140 N.M. 783, 149 P.3d 99. {13} Our Supreme Court has previously held that a violation of the right to be free of unreasonable searches or seizures, by itself, does not provide a license to engage in a physical altercation with a law enforcement officer.

{39} A brief discussion of the new crimes exception will be helpful to our analysis. We originally adopted the new crime exception for violent crimes, although not by name, in State v. Travison B. , 2006-NMCA-146, 140 N.M. 783, 149 P.3d 99 ; see alsoTapia , 2018-NMSC-017, ¶ 19, 414 P.3d 332 (discussing our adoption of the new crime exception). In Travison B. , this Court assumed officers unlawfully entered an apartment while responding to a domestic disturbance, who then encountered an angry juvenile who battered an officer.

{19} Waupekenay involved a defendant reacting violently toward police officers, and many states, including New Mexico, have adopted the new crime exception to the exclusionary rule in such cases. Id. at 1537 (listing numerous cases); see State v. Travison B. , 2006-NMCA-146, ¶ 11, 140 N.M. 783, 149 P.3d 99. In Travison B. , officers improperly entered the scene of a domestic disturbance and encountered an angry child, who then battered the officers.

The purpose of the rule regarding use of force against police officers discharging their duties is to avoid violent confrontation and promote in its place the "orderly settlement of disputes." State v. Travison B., 149 P.3d 99, 102 (N.M. App. 2006). In Travison B., plaintiff was charged with battery on a police officer.

In sum, "[t]he societal interest in the orderly settlement of disputes between citizens and their government outweighs any individual interest in resisting a questionable search." Doe, 1978-NMSC-072, ¶ 10; State v. Chamberlain, 1991-NMSC-094, ¶ 23, 112 N.M. 723, 819 P.2d 673 (quoting Doe, 1978-NMSC-072, ¶ 25); see also State v. Travison B., 2006-NMCA-146, ¶ 9, 140 N.M. 783, 149 P.3d 99; State v. Tapia, 2000-NMCA-054, ¶ 17 ("[S]ound public policy favors protecting police officers from assault or battery, regardless of whether the officer's actions were technically legal or illegal.").

The question becomes whether a defendant's independent criminal act was sufficiently "separate and distinct" from the officer's initial unlawful act. See State v. Travison B., 2006-NMCA-146, ¶ 11, 140 N.M. 783, 149 P.3d 99. {¶13}Our Supreme Court has previously held that a violation of the right to be free of unreasonable searches or seizures, by itself, does not provide a license to engage in a physical altercation with a law enforcement officer.

[DS 2, 4] This Court issued a notice of proposed summary disposition, proposing to affirm with regard to the district court's denial of his motion to suppress evidence based upon the "new crime" exception to the exclusionary rule. See State v. Tapia, 2018-NMSC-017, ¶ 19, 414 P.3d 332 (describing New Mexico's adoption of the "new crime exception" to the exclusionary rule); see also, e.g., State v. Travison B., 2006-NMCA-146, ¶ 9, 140 N.M. 783, 149 P.3d 99 (noting that "societal interests dictate the protection of the officer from attack by someone who may question, albeit reasonably, the legality of the officer's actions"). Similarly, we proposed that the question of whether he could have viably asserted self defense had no bearing upon the district court's denial of his motion to suppress evidence and therefore provided no basis for reversal. [CN 2, 3] Defendant has filed a memorandum in opposition to that proposed disposition.

See State v. Doe, 1978-NMSC-072, ¶ 11, 92 N.M. 100, 583 P.2d 464 (holding that "a private citizen may not use force to resist a search by an authorized police officer engaged in the performance of his duties whether or not the arrest is illegal" (emphasis added)). Under such circumstances, the vindication of Defendant's constitutional rights would "lie in a civil action, not in a physical attack." State v. Travison B., 2006-NMCA-146, ¶ 9, 140 N.M. 783, 149 P.3d 99. And, more directly to the point, such an attack constitutes "new criminal activity that is not subject to the exclusionary rule." Id. {4} With regard to any evidence that would have justified a self-defense instruction, Defendant informs us that the officers involved "attempted to question" him,"thrust him to the ground," opened the door to a police car to look at him, and also that "the handcuffs were painful.

{5} However, although we suggested in our calendar notice that the emergency assistance doctrine did not apply, we noted that our proposed conclusion appeared to be of no moment to Defendant, at least insofar as her convictions for battery upon a peace officer and resisting arrest were concerned. [CN 5] That is, our jurisprudence has rejected the argument that trial courts should suppress evidence relating to a defendant's violence or threatened violence toward police officers subsequent to an unlawful search or seizure or a warrantless entry. State v. Tapia, 2015-NMCA-055, ¶ 12, 348 P.3d 1050, cert. granted, 2015-NMCERT-005; see also, e.g., State v. Travison B., 2006-NMCA-146, ¶ 9, 140 N.M. 783, 149 P.3d 99 (concluding that even if police officers entered an apartment unlawfully, evidence that the officers were attacked was admissible because the attack was "new criminal activity that is not subject to the exclusionary rule"); State v. Jones, 1992-NMCA-064, ¶¶ 5, 16, 18, 114 N.M. 147, 835 P.2d 863 (concluding that notwithstanding that the initial stop of the defendant was illegal, evidence that the defendant struggled with the police officer, hit him, broke from his grasp, and bolted, only to be caught by another police officer was admissible); State v. Chamberlain, 1989-NMCA-082, ¶¶ 2-4, 109 N.M. 173, 783 P.2d 483 (assuming that even if two police officers unlawfully remained in the defendant's home, evidence that the defendant shot at the police officers, killing one of them, was admissible). According to Tapia, this jurisprudence is supported by case law across the country.

The Connecticut Supreme Court specifically agreed with the Seventh Circuit in United States v. Pryor, in which Judge Easterbrook said: More states should be added to this list, including Alaska, Elson v. State, 659 P.2d 1195 (Alaska 1983) ; Idaho, see Lusby, 198 P.3d 735 ; Kentucky, see Commonwealth v. Johnson, 245 S.W.3d 821 (Ky.Ct.App.2008) ; Maine, see State v. Boilard, 488 A.2d 1380 (Me.1985) ; Montana, see State v. Ottwell, 239 Mont. 150, 779 P.2d 500 (1989) ; New Mexico, see State v. Travison B., 140 N.M. 783, 149 P.3d 99 (N.M.Ct.App.2006) ; Texas, see State v. Mitchell, 848 S.W.2d 894 (Tex.Crim.App.1993) ; and Virginia, see Brown, 606 S.E.2d 523. Police do not detain people hoping that they will commit new crimes in their presence; that is not a promising investigative technique, when illegal detention exposes the police to awards of damages.