State v. Lowe

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 33,848
5 KEVIN LOWE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
8 Gary L. Clingman, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Law Offices of the Public Defender
13 Jorge A. Alvarado, Chief Public Defender
14 J.K. Theodosia Johnson, Assistant Appellate Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 SUTIN, Judge.
1 {1} Defendant Kevin Lowe pleaded guilty to trafficking a controlled substance,
2 contrary to NMSA 1978, Section 30-31-20 (2006), pursuant to a conditional plea
3 agreement in which he reserved the right to appeal the district court’s denial of his
4 motion to suppress evidence. [RP 74] Unpersuaded by Defendant’s docketing
5 statement, we issued a notice of proposed summary disposition, proposing to affirm.
6 Defendant has responded to our notice with a memorandum in opposition. Having
7 considered Defendant’s response, we remain unpersuaded that the district court erred
8 and therefore affirm.
9 {2} On appeal, Defendant asserts that the district court erred in denying his motion
10 to suppress evidence. [DS 3, 6; MIO 2-7] Specifically, he contends that the affidavit
11 submitted in support of the search warrant did not establish probable cause insofar as
12 it failed to satisfy the requirements set forth in Rule 5-211 NMRA. [DS 3-6; MIO
13 207] Our notice detailed the relevant facts and set forth the law that we believe
14 controls. Applying the law to the facts, we proposed to conclude that the affidavit
15 provided the issuing judge with sufficient information to establish both the basis of
16 the confidential informant’s knowledge and the confidential informant’s credibility,
17 such that the warrant was supported by probable cause. We do not reiterate our
18 analysis detailed in the notice here and instead focus on the content of the
19 memorandum in opposition.
2
1 {3} Focusing on the veracity requirement, Defendant’s response to our notice
2 continues to argue that the affidavit in support of the search warrant could not support
3 a finding of probable cause. [MIO 4-7] See State v. Vest, 2011-NMCA-037, ¶ 12, 149
4 N.M. 548, 252 P.3d 772 (“[T]he allegations of an informant cannot provide probable
5 cause to issue a search warrant unless both the basis of the informant’s knowledge and
6 the veracity of the informant are demonstrated.”). The affidavit in this case states,
7 “This Confidential Informant has provided me with true and accurate information
8 concerning the sales of drugs, on at least three occasions.” [RP 67] Defendant
9 contends that this statement is “so broad as to be meaningless.” [MIO 5-6] We are not
10 convinced. As we explained in our notice, our case law indicates this statement
11 provided sufficient information to establish the credibility of the informant. See State
12 v. Cordova, 1989-NMSC-083, ¶ 20, 109 N.M. 211, 784 P.2d 30 (concluding that an
13 affidavit was sufficient where it stated that the informant had provided information in
14 the past that the affiant found to be true from personal knowledge and investigation);
15 State v. Therrien, 1990-NMCA-060, ¶ 6, 110 N.M. 261, 794 P.2d 735 (“The New
16 Mexico Supreme Court has approved an unadorned allegation that the informant had
17 provided information in the past which the affiant did find to be true and correct from
18 personal knowledge and investigation.” (internal quotation marks and citation
19 omitted)), overruled on other grounds by State v. Barker, 1992-NMCA-117, ¶ 13, 114
3
1 N.M. 589, 844 P.2d 839; State v. Ramirez, 1980-NMCA-108, ¶ 4, 95 N.M. 202, 619
2 P.2d 1246 (concluding that credibility was established “by the statement in the
3 affidavit that the affiant knows the informant to be reliable because he has provided
4 him with reliable information concerning narcotics violations in the past”); State v.
5 Cervantes, 1979-NMCA-029, ¶¶ 12-13, 92 N.M. 643, 593 P.2d 478 (concluding that
6 the credibility of an informant was established by a statement in an affidavit,
7 providing that the informant had provided information in the past week that had
8 resulted in the recovery of stolen property). Additionally, Defendant’s analogies to
9 Vest, 2011-NMCA-037, and Therrien, 1990-NMCA-060, in his memorandum in
10 opposition [MIO 6-7] are likewise unavailing as they are easily distinguishable for the
11 reasons we set forth in our notice in discussing Vest.
12 {4} In short, Defendant’s response does not assert any new factual or legal
13 argument that persuades this Court that our notice was incorrect regarding the
14 adequacy of the affidavit. Accordingly, on the basis of our proposed analysis and the
15 reasons set forth in this Opinion, we hold that probable cause supported the issuance
16 of the search warrant in this case, and the district court therefore properly denied
17 Defendant’s motion to suppress.
18 {5} Based on the foregoing, we affirm the district court’s order denying
19 Defendant’s motion to suppress.
4
1 {6} IT IS SO ORDERED.
2 __________________________________
3 JONATHAN B. SUTIN, Judge
4 WE CONCUR:
5 _______________________________
6 LINDA M. VANZI, Judge
7 _______________________________
8 M. MONICA ZAMORA, Judge
5