State v. Bierner ( 2022 )

This decision of the New Mexico Court of Appeals was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
citation of unpublished decisions. Electronic decisions may contain computer-
generated errors or other deviations from the official version filed by the Court of
Appeals.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-38998
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
WILLIAM J. BIERNER,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
Thomas F. Stewart, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Walter Hart, Assistant Attorney General
Albuquerque, NM
for Appellee
Harrison & Hart, LLC
Daniel J. Gallegos
Nicholas T. Hart
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
IVES, Judge.
{1} Defendant William J. Bierner appeals his convictions for possession of a
controlled substance (methamphetamine) in violation of NMSA 1978, Section 30-31-23
(2011, amended 2021) and battery upon a peace officer in violation of NMSA 1978,
Section 30-22-24 (1971). Defendant argues that (1) the district court erred in denying
his motion to suppress evidence seized from a residence pursuant to a warrant; and (2)
there is insufficient evidence to support his convictions. Unpersuaded, we affirm.
DISCUSSION1
I. Agent Flores’s Affidavit Provided a Substantial Basis to Support a Finding
of Probable Cause to Search the Residence
A. Standard of Review
{2} We review the issuance of search warrants under a substantial basis standard.
See State v. Williamson, 2009-NMSC-039, ¶ 29, 146 N.M. 488, 212 P.3d 376. Our role
is to “determine whether the affidavit as a whole, and the reasonable inferences that
may be drawn therefrom, provide a substantial basis for determining that there is
probable cause to believe that a search will uncover evidence of wrongdoing.” Id. This
standard of review is “more deferential than the de novo review applied to questions of
law, but less deferential than the substantial evidence standard applied to questions of
fact.” Id. ¶ 30. Thus, “if the factual basis for the warrant is sufficiently detailed in the
search warrant affidavit and the issuing court has found probable cause, the reviewing
courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical,
rather than a commonsense, manner.” Id. (alteration, internal quotation marks, and
citation omitted).
{3} Both the Fourth Amendment to the United States Constitution and Article II,
Section 10 of the New Mexico Constitution “require probable cause to believe that a
crime is occurring or seizable evidence exists at a particular location before a search
warrant may issue.” Id. ¶ 14 (internal quotation marks and citation omitted). A search
warrant may be issued when “sufficient facts are presented in a sworn affidavit to
enable the [issuing court] to make an informed, deliberate, and independent
determination that probable cause exists.” State v. Gonzales, 2003-NMCA-008, ¶ 11,
133 N.M. 158, 61 P.3d 867, abrogated on other grounds by Williamson, 2009-NMSC-
039, ¶ 29. This affidavit “must show: (1) that the items sought to be seized are evidence
of a crime; and (2) that the criminal evidence sought is located at the place to be
searched.” State v. Evans, 2009-NMSC-027, ¶ 11, 146 N.M. 319, 210 P.3d 216 (internal
quotation marks and citation omitted). We limit our review to the information contained
within the four corners of the search warrant affidavit. Williamson, 2009-NMSC-039, ¶
31.
B. Analysis
{4} Defendant argues that the district court erred in denying his motion to suppress
because the search warrant affidavit did not furnish sufficient probable cause to search
the residence. Defendant attacks the affidavit on the following bases: (1) the affidavit
included hearsay statements from anonymous sources but lacked information on their
1Because the parties are familiar with the factual background, this memorandum opinion does not include
a background section. We describe the pertinent facts in the discussion section.
veracity and basis of knowledge; and (2) neither Defendant’s active arrest warrant for
trafficking narcotics nor the affiant’s nonhearsay observations of lawful activity sufficed
for probable cause that criminal evidence would be found in the residence.
{5} As an initial matter, the State concedes that the district court properly accorded
no weight to the hearsay statements from the anonymous sources. While we are not
bound by the State’s concession, see State v. Tapia, 2015-NMCA-048, ¶ 31, 347 P.3d
738, we nevertheless accept the concession in this case, see Rule 5-211(E) NMRA
(stating that probable cause for a search warrant may be based on hearsay “in whole or
in part,” provided certain credibility requirements are met), and therefore disregard
these statements in our substantial basis review. See State v. Cordova, 1989-NMSC-
083, ¶¶ 10-11, 18, 109 N.M. 211, 784 P.2d 30. We are left with the remaining
nonhearsay information contained in the warrant, which includes Defendant’s active
arrest warrant for trafficking narcotics and the affiant’s nonhearsay observations of
lawful activity. Defendant argues that this information did not amount to probable cause
that evidence of criminal activity would be found in the residence. We disagree.
{6} The affidavit included enough information to support a reasonable inference that
the items sought to be seized were evidence of a crime and would be located at the
place to be searched. See Evans, 2009-NMSC-027, ¶ 11. The search warrant
authorized a search of a residence at 108 North Cleveland Street for
methamphetamines, paraphernalia used to ingest controlled substances, scales, and
packaging materials used to store or distribute controlled substances, among other
items. These items are all evidence of a crime, specifically, trafficking narcotics.
{7} Defendant had an active arrest warrant for trafficking narcotics, but, as
Defendant points out, this fact alone does not inexorably lead to the conclusion that
evidence of narcotics trafficking would be found in Defendant’s residence. See id. ¶ 24
(explaining that “probable cause [to believe that there is criminal evidence in the
accused’s home] does not follow ineluctably from an allegation of murder or any other
crime”). Instead, the inferential link between the two conclusions “must be made by the
reviewing judge or magistrate on a case-by-case basis,” considering the “evidence in
totality.” Id. ¶¶ 24, 28.
{8} Here, the other evidence in the affidavit provided the inferential link between
Defendant’s active arrest warrant for narcotics trafficking and probable cause that
evidence from that crime would be found in the residence. Cf. State v. Ferrari, 1969-
NMSC-146, ¶ 11, 80 N.M. 714, 460 P.2d 244 (“A showing of probable cause that one
has committed murder ordinarily is enough to justify the search of [a person’s] house
and the surrounding area and [their] business as it may be reasonably inferred that
evidence of the crime may be located on those premises.”); see also Evans, 2009-
NMSC-027, ¶¶ 26-27 (concluding that a preliminary police investigation resulting in
physical evidence and incriminating statements provided the inferential link between the
murder suspect and the victim’s death to furnish probable cause to issue a search
warrant for the suspect’s home). The affiant, Agent Richard Flores, was employed by
the Silver City Police Department as a narcotics investigator. Flores stated that on
March 25, 2019, he and Detective Bascom conducted surveillance at a residence
located at 108 North Cleveland Street in Santa Clara, New Mexico. The purpose of the
surveillance was to serve an arrest warrant on Defendant, who had “an active warrant
for his arrest for trafficking narcotics.” While conducting surveillance, Flores observed
one subject enter the residence and leave within ten minutes. When Flores attempted to
initiate contact with the subject, he “evaded” the officers. Flores noted that this reaction
was “odd” because the subject did not have any active warrants at that time. Flores also
observed another subject exit the residence and get into a parked vehicle outside of the
residence. Flores stopped this subject several minutes later. When questioned about
whether he had visited the residence, the subject was initially untruthful. He first claimed
that he had visited his “grandma’s house.” When Flores explained that he had observed
the subject’s vehicle leaving the residence, he then claimed that he had “lent his vehicle
to someone else.” When Flores explained that he had observed the subject exit the
residence and get into his vehicle, the subject then disclosed that he had been there to
visit Defendant. Defendant eventually exited the residence, and Flores approached him,
identified himself as a police officer, and told him that he was under arrest for an active
warrant. In response, Defendant was “visibly nervous,” “would not listen to commands,”
and “tried backtracking toward his house.” Flores also observed the following: a video
surveillance system installed outside of the residence, a spoon and shotgun rounds
located inside a vehicle registered to Defendant, and a spent shell casing on the porch
of the residence. Flores concluded that, “[b]ased on [his] training and experience, the
activity observed is consistent with narcotics activity.”
{9} This evidence provided the inferential link between Defendant’s active arrest
warrant for narcotics trafficking and probable cause that criminal evidence would be
found in the place to be searched. While it is true that there is no single, telling piece of
evidence, we have never said that such evidence is required to establish probable
cause. See Evans, 2009-NMSC-027, ¶ 21 (clarifying that “overwhelming physical
evidence is not required in every case to establish probable cause”). The testimony in
the affidavit, viewed as a whole and with all reasonable inferences drawn therefrom,
provides a substantial basis for determining that there was probable cause to believe
that a search would uncover evidence of a crime at the residence. See Williamson,
2009-NMSC-039, ¶ 29.
{10} There seems to be some factual dispute as to whether the premises described in
the warrant was Defendant’s residence. We believe that, under the circumstances of
this case, whether the residence was Defendant’s is not dispositive. In Evans, our
Supreme Court noted that
[t]he fundamental inquiry is whether there is probable cause to believe
there will be evidence of a crime at a particular location. Residence may
be a component of this, but residence is not necessary, nor is it always
sufficient, to establish probable cause to believe that the location to be
searched contains evidence of a crime.
2009-NMSC-027, ¶ 25 (citation omitted); see also State v. Herrera, 1985-NMSC-005, ¶
8, 102 N.M. 254, 694 P.2d 510 (articulating the “basic requirement that the residence to
be searched must be established to be that of the suspect, or alternatively, that the
items sought to be seized are located at that residence” (emphasis added)).
{11} Here, even if Flores lacked personal knowledge that the location described in the
warrant was in fact Defendant’s residence, other statements in the affidavit supported
the inference that the items sought to be seized would be located at that location.
Defendant had an active arrest warrant for narcotics trafficking; Flores observed
Defendant at the residence; one visitor left the residence within ten minutes of arriving,
evaded officers and acted “odd”; the other visitor was initially untruthful about having
visited the residence but ultimately disclosed that he was there to visit Defendant;
Defendant was “visibly nervous” when confronted by the officers; and there was a video
surveillance system installed outside of the residence. We believe that this evidence
established probable cause to believe that the location to be searched contained
evidence of narcotics trafficking—even if the premises were not Defendant’s actual
residence.
{12} Lastly, Defendant’s argument that affiant’s observations amounted to innocent,
lawful activity is misguided because it is based on a faulty premise: Defendant
incorrectly considers these observations in isolation from the other evidence in the
affidavit. The question before us is not whether each piece of evidence in the affidavit—
considered individually and in isolation from the other evidence in the affidavit—
supports a determination of probable cause. Instead, we “look to the totality of the
circumstances to determine if probable cause is present.” Williamson, 2009-NMSC-039,
¶ 31 (internal quotation marks and citation omitted); see id. ¶ 34 (concluding that,
although the defendant’s nervousness and evasiveness were lawful, when viewing the
facts and circumstances alleged in the affidavit together, the reasonable inference was
that it was more likely than not that the defendant was engaged in narcotics trafficking
than innocent lawful activity). Although it may be true that, standing alone, Agent
Flores’s observations amounted to innocent activity, when those observations are
considered in the aggregate along with the other information in the affidavit, they
support a reasonable inference that the residence contained evidence of narcotics
trafficking.
{13} We hold that there was a substantial basis for the district court’s probable cause
determination. We therefore affirm the order denying Defendant’s motion to suppress.
II. The Evidence Suffices to Support Defendant’s Convictions
{14} Defendant also argues that there was insufficient evidence to convict him of
possession of methamphetamine and battery on a peace officer. We disagree with both
arguments.
A. Standard of Review
{15} When reviewing the sufficiency of the evidence, we “scrutin[ize] . . . the evidence
and supervis[e] . . . the jury’s fact-finding function to ensure that . . . a rational jury could
have found beyond a reasonable doubt the essential facts required for a conviction.”
State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (internal quotation
marks and citation omitted). We first “view the evidence in the light most favorable to the
guilty verdict, indulging all reasonable inferences and resolving all conflicts in the
evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M.
711, 998 P.2d 176. We then consider “whether the evidence, so viewed, supports the
verdict beyond a reasonable doubt.” State v. Garcia, 2016-NMSC-034, ¶ 24, 384 P.3d
1076. “We do not reweigh the evidence or substitute our judgment for that of the fact
finder as long as there is sufficient evidence to support the verdict.” State v. Gipson,
2009-NMCA-053, ¶ 4, 146 N.M. 202, 207 P.3d 1179. “We will affirm a conviction if
supported by a fair inference from the evidence regardless of whether a contrary
inference might support a contrary result.” State v. Barrera, 2002-NMCA-098, ¶ 10, 132
N.M. 707, 54 P.3d 548. We measure the State’s evidence against the jury instructions
that the district court gave. State v. Arrendondo, 2012-NMSC-013, ¶ 18, 278 P.3d 517.
B. Analysis
1. Possession of a Controlled Substance (Methamphetamine)
{16} Defendant argues that the State failed to present sufficient evidence that he
constructively possessed methamphetamine because there was no evidence to support
Defendant’s exclusive possession of the residence where the methamphetamine was
found. We disagree. The jury was instructed that, to convict Defendant of possession of
a controlled substance, it had to find beyond a reasonable doubt, in relevant part, that
Defendant had methamphetamine in his possession. [SRP 314] The district court also
instructed the jury as follows regarding the act of possession:
A person is in possession methamphetamine [sic] when he knows it
is on his person or in his presence, and he exercises control over it. Even
if the substance is not in his physical presence, he is in possession if he
knows where it is, and he exercises control over it. Two or more people
can have possession of a substance at the same time. A person’s
presence in the vicinity of the substance or his knowledge of the existence
or the location of the substance, is not, by itself, possession.
{17} Under our deferential standard of review, we hold that the State presented
sufficient evidence for the jury to conclude beyond a reasonable doubt that Defendant
constructively possessed the methamphetamine found at the residence. Both Detective
Bascom and Agent Flores testified at trial. Bascom testified that he and Flores went to
Defendant’s residence to execute a warrant for Defendant’s arrest. At trial, jurors were
shown photos of the exterior and interior of Defendant’s residence. One photo showed
the exterior door of Defendant’s residence, which was secured by a padlock. Flores
testified that, in the search incident to Defendant’s arrest, he obtained a key that opened
this padlock. Another photo showed a piece of furniture in the living room area
containing a drawer, in which Flores testified that he found a bag containing what was
later confirmed by the forensic expert to be methamphetamine. Flores also testified that
other evidence seized from the residence included glass pipes “consistent with pipes
used to smoke methamphetamine, . . . a digital scale, . . . and a large amount of plastic
bags which are commonly used as packaging material.”
{18} Viewing this evidence in the light most favorable to the guilty verdict, a jury could
reasonably infer that Defendant knew that the methamphetamine was in the drawer and
that he exercised control over it. That suffices for possession under the instructions
given. Even though “women’s clothing” and “high heel shoes” were also found in the
residence, the members of the jury were free to “‘use their common sense to look
through testimony and draw inferences from all the surrounding circumstances,’” State
v. Chandler, 1995-NMCA-033, ¶ 14, 119 N.M. 727, 895 P.2d 249 (quoting United States
v. Davis, 562 F.2d 681, 688 (D.C. Cir. 1977) (per curiam)), and to reject Defendant’s
argument that he did not have exclusive possession of the residence. See Rojo, 1999-
NMSC-001, ¶ 19. Even if the jury had believed Defendant’s argument, we believe that
the jury could have reasonably inferred constructive possession based on the other
evidence seized, which included glass pipes used for smoking, a digital scale, and a
large number of plastic bags. See State v. Phillips, 2000-NMCA-028, ¶ 10, 128 N.M.
777, 999 P.2d 421 (finding that, where the defendant did not have exclusive control over
the premises, the inventory of seized drug paraphernalia—beyond the mere presence of
drugs—constituted additional circumstances that created an inference of constructive
possession). The evidence is sufficient to support the conviction.
2. Battery on a Peace Officer
{19} Lastly, we hold that the State presented sufficient evidence for the jury to
conclude that Defendant knew Bascom and Flores were peace officers. Bascom
testified that he went to the residence to locate Defendant, who had an outstanding
warrant for his arrest. He drove to the residence in a 2019 Dodge Charger vehicle,
which is a vehicle commonly used by police departments. The vehicle was outfitted with
a government-issued license plate and was parked such that the license plate would
have been easily visible to Defendant. Bascom also testified that, on the day of the
incident, he was wearing a green polo shirt, brown slacks, black shoes, and a badge on
his right hip with a firearm next to the badge. Nothing was obstructing the badge’s
display. As he approached Defendant, he identified himself as a police officer “multiple
times.” Bascom testified that, during the altercation between Defendant and Flores,
Defendant never called for help from the police nor did he ever indicate that he did not
believe that Bascom or Flores were police officers.
{20} Flores testified to similar facts. On the day of the incident, Flores went to the
residence with Bascom to conduct surveillance on Defendant and to serve an arrest
warrant on him. Flores was dressed in a t-shirt and jeans and had a badge displayed on
his right hip, next to his duty weapon. Over the course of the incident, Flores announced
to Defendant “multiple times” that he was “with the Silver City Police Department” and
that he was attempting to serve an arrest warrant on Defendant. He further testified that
Defendant never challenged that he was a police officer. At one point, when Defendant
attempted to walk back towards the residence, Flores told Defendant “several times” to
“stop” or that Defendant would be placed under arrest.
{21} This testimony is sufficient for the jury to conclude that Defendant knew the
officers were peace officers. See State v. Gutierrez, 2007-NMSC-033, ¶ 36, 142 N.M. 1,
162 P.3d 156 (holding that the jury could infer that a defendant knew of an officer’s
status from evidence that the officer approached the defendant in an authoritative
manner with insignia of office clearly displayed, the officer indicated that he needed to
talk to the defendant, and the officer subsequently chased the defendant when he failed
to stop). Although Defendant denied that he knew they were peace officers, “the jury
[was] free to reject [his] version of the facts.” Rojo, 1999-NMSC-001, ¶ 19. We therefore
uphold Defendant’s conviction for battery on a peace officer.
CONCLUSION
{22} We affirm.
{23} IT IS SO ORDERED.
ZACHARY A. IVES, Judge
WE CONCUR:
MEGAN P. DUFFY, Judge
JANE B. YOHALEM, Judge