State v. Perez

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,585
10 RICARDO PEREZ,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
13 Gary M. Jeffreys, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 James W. Grayson, Assistant Attorney General
17 Albuquerque, NM
18 for Appellee
19 McGarry Law Office
20 Kathleen McGarry
21 Glorieta, NM
22 for Appellant
23 MEMORANDUM OPINION
24 VANZI, Judge.
1 Defendant pled no contest to one count of attempted trafficking controlled
2 substances, reserving the right to appeal the denial of his motion to suppress. For the
3 reasons that follow, we affirm.
4 BACKGROUND
5 In an affidavit dated June 25, 2008, a detective from the Luna County Sheriff’s
6 Department stated that he had conducted an interview with a third-party informant,
7 Victor Caballero, on the previous day. In the course of that interview, Caballero had
8 confessed to committing several recent burglaries in Luna County. Caballero had
9 further indicated that some of the property stolen in the course of the burglaries,
10 specifically including a welder, welding rods, snap-on tool boxes with a variety of
11 tools, and a reel-to-reel stereo system, was at Defendant’s home in Deming, New
12 Mexico. Caballero had explained that he had traded these items for money and
13 methamphetamine. Based on this information, the detective obtained a search
14 warrant.
15 The ensuing search of Defendant’s home and the environs was promptly
16 conducted. Although none of the stolen items specifically mentioned by Caballero
17 were found, the officers observed drug paraphernalia, a white crystalline substance,
18 and other stolen property. These observations were detailed in a second affidavit.
2
1 Based upon that affidavit, a second warrant was issued authorizing another search.
2 Various incriminating items were seized in the course of that search.
3 Defendant filed a motion to suppress all of the evidence seized in the course of
4 both searches. As grounds he argued that the first affidavit provided inadequate
5 support for the issuance of the first warrant, both because it failed to establish
6 Caballero’s credibility and because it was based on stale information. To the extent
7 that the first warrant was improperly issued, Defendant argued that the evidence
8 obtained in the course of the second search was fruit of the poisonous tree.
9 After hearing the arguments of counsel, the district court denied Defendant’s
10 motion to suppress. Defendant subsequently entered into a plea agreement, reserving
11 the right to challenge the district court’s ruling on the motion. This appeal followed.
12 STANDARD OF REVIEW
13 On appeal we must review the issuing court’s decision. State v. Evans, 2009-
14 NMSC-027, ¶ 12, 146 N.M. 319, 210 P.3d 216. “[The] issuing court’s determination
15 of probable cause must be upheld if the affidavit provides a substantial basis to
16 support a finding of probable cause.” State v. Williamson, 2009-NMSC-039, ¶ 29,
17 146 N.M. 488, 212 P.3d 376. We do not substitute our judgment for that of the
18 issuing court. Id. “[I]f the factual basis for the warrant is sufficiently detailed in the
19 search warrant affidavit and the issuing court has found probable cause, the
3
1 [reviewing] courts should not invalidate the warrant by interpreting the affidavit in a
2 hypertechnical, rather than a commonsense, manner.” Id. ¶ 30 (alteration in original)
3 (internal quotation marks and citation omitted).
4 DISCUSSION
5 Defendant contends that the information which supplied the basis for the
6 issuance of the initial warrant was both unreliable and stale. We address each
7 contention in turn.
8 The Informant
9 As Defendant observes, the first affidavit was based on the hearsay statements
10 of Caballero, an informant. Rule 5-211(E) NMRA provides that hearsay may supply
11 a proper basis for the issuance of a warrant, “provided there is a substantial basis for
12 believing the source of the hearsay to be credible and for believing that there is a
13 factual basis for the information furnished.” Accord State v. Cordova, 109 N.M. 211,
14 213, 784 P.2d 30, 32 (1989) (observing that the allegations of an informant cannot
15 provide probable cause to issue a search warrant unless both the basis of the
16 informant’s knowledge and the veracity or credibility of the informant are
17 demonstrated). In his brief on appeal, Defendant appears to take issue with both of
18 these requirements.
4
1 With respect to the factual basis for the information, the affidavit clearly
2 reflects that the information Caballero supplied was based on first-hand experience,
3 gained by virtue of his direct interaction with Defendant. See generally State v. Lujan,
4 1998-NMCA-032, ¶ 12, 124 N.M. 494, 953 P.2d 29 (“When, as in this case, first-hand
5 knowledge naturally and logically flows from a common-sense reading of the
6 affidavit, that will suffice.”). This is sufficient to satisfy the basis of knowledge
7 requirement. See, e.g., State v. Whitley, 1999-NMCA-155, ¶ 4, 128 N.M. 403, 993
8 P.2d 117 (holding that the basis of knowledge requirement was met where, among
9 other considerations, the informant personally observed the defendant); State v.
10 Montoya, 114 N.M. 221, 225, 836 P.2d 667, 671 (Ct. App. 1992) (holding that the
11 basis of knowledge requirement was satisfied where a confidential informant had
12 personal knowledge through observation of the defendant’s activities).
13 With respect to credibility, the affidavit clearly identifies the informant by
14 name. This is a highly significant factor, partly because the strictures of
15 Aguilar-Spinelli “were aimed primarily at unnamed police informers,” and partly
16 because “a named informant has greater incentive to provide truthful information
17 because he or she is subject to unfavorable consequences for providing false or
18 inaccurate information to a greater degree than an unnamed or anonymous
19 individual.” State v. Steinzig, 1999-NMCA-107, ¶ 19, 127 N.M. 752, 987 P.2d 4095
1 (emphasis omitted) (internal quotation marks and citation omitted). In addition, the
2 information supplied is clearly against penal interest. This supplies additional support
3 for the informant’s credibility. See State v. Barker, 114 N.M. 589, 591-92, 844 P.2d
4 839, 841-42 (Ct. App. 1992) (holding that statements against penal interest reflect
5 upon an informant’s credibility where there is a nexus to the defendant’s criminal
6 activity, and where information in the affidavit tends to show that the informant would
7 have had a reasonable fear of prosecution at the time he made the statement). Finally,
8 the circumstances surrounding the statement tend to suggest reliability, insofar as
9 Caballero was already facing prosecution in relation to the burglaries, and “[o]ne who
10 knows the police are already in a position to charge him with a serious crime will not
11 lightly undertake to divert the police down blind alleys.” Steinzig, 1999-NMCA-107,
12 ¶ 20 (internal quotation marks and citation omitted). We conclude that the foregoing
13 considerations sufficiently establish the informant’s credibility.
14 In his brief, Defendant urges that the information supplied by Caballero should
15 not be deemed credible because the affidavit fails to establish that he had provided
16 truthful information in the past and contains no indication that the officer had
17 corroborated the information supplied by Caballero. However, we conclude that such
18 additional support for the informant’s credibility is not required in light of the other
19 factors previously considered. We therefore reject Defendant’s first assertion of error.
6
1 Staleness
2 Defendant also challenges the affidavit supporting the first search warrant on
3 grounds that the information contained therein should be deemed stale.
4 “Probable cause to issue the warrant requires a factual showing that, at the time
5 of the application for the warrant, evidence relating to the commission of a crime
6 exists on the premises sought to be searched. Thus, information which is ‘stale’ will
7 not support a finding of probable cause.” State v. Gonzales, 2003-NMCA-008, ¶ 11,
8 133 N.M. 158, 61 P.3d 867 (citations omitted).
9 “[S]taleness involves a variety of considerations, including not only time, but
10 also the character of the crime and the extent of prior activity, the consumable or
11 transferable nature of the items to be seized, the information known about the suspect
12 and his or her habits, and the location to be searched.” Whitley, 1999-NMCA-155, ¶
13 8. While the foregoing framework applies generally to any case in which staleness
14 is at issue, “the analysis . . . will necessarily depend upon the weight given the unique
15 facts and circumstances” presented. Gonzales, 2003-NMCA-008, ¶ 22.
16 In light of the foregoing, we turn to the facts and circumstances presented in
17 this case. As previously described, the affidavit submitted in connection with the first
18 search warrant was based on information gathered from the informant, Caballero.
7
1 This information was supplied in relation to “several burglaries that [had] occurred .
2 . . recently.” The reference to ‘recent’ activity, though imprecise, indicates that the
3 underlying events occurred not long before the affidavit was submitted. See generally
4 Williamson, 2009-NMSC-039, ¶ 16 (observing that “affidavits submitted in support
5 of search warrants must be tested and interpreted by magistrates and courts in a
6 commonsense and realistic fashion” (internal quotation marks and citation omitted)).
7 The items to be seized included a welder, welding rods, snap-on tool boxes with a
8 variety of tools, and a reel-to-reel stereo system. These are durable as opposed to
9 consumable goods, which are not inherently incriminating and are of a type often
10 stored at home. See Gonzales, 2003-NMCA-008, ¶ 24 (observing that similar general
11 qualities tend to support an inference that the evidence in question is likely to be
12 found at a location to be searched, despite the lapse of time). Finally, the location to
13 be searched, which included a residence, associated outbuildings, trailer, and curtilage,
14 was a stable as opposed to transitory environment. See State v. Rubio,
15 2002-NMCA-007, ¶ 8, 131 N.M. 479, 39 P.3d 144 (noting that because a residence
16 does not have the same transitory nature as a motel room, the probability that the
17 evidence sought will still be there is greater). We conclude that these considerations
18 provide adequate support for the finding of probable cause. See, e.g., Gonzales, 2003-
19 NMCA-008, ¶¶ 28-29 (upholding the issuance of a search warrant based on
8
1 information that was approximately a month and a half old, where the item sought was
2 a durable item that the police had reason to believe the subject would have kept, and
3 where the location to be searched was a residence).
4 We acknowledge that the affidavit neither contains anything to indicate ongoing
5 criminal activity, nor supplies additional information about Defendant. We further
6 acknowledge that the items to be seized were presumably transferrable, albeit fairly
7 bulky. However, it is not necessary for every factor in the staleness calculus to
8 provide support for an ultimate determination of probable cause. See, e.g., Gonzales,
9 2003-NMCA-008, ¶¶ 28-29 (upholding the issuance of a warrant despite the absence
10 of evidence of ongoing criminal activity). We therefore conclude that none of the
11 alleged shortcomings outweigh the various considerations which support the issuance
12 of the warrant.
13 In his brief, Defendant urges that the affiant’s failure to specify precisely when
14 the burglaries had occurred renders the timeframe so ambiguous that the information
15 should not be deemed current. However, “technical requirements of elaborate
16 specificity have no place” in this arena. State v. Wisdom, 110 N.M. 772, 777, 800
17 P.2d 206, 211 (Ct. App. 1990), overruled on other grounds by Barker, 114 N.M. 589,
18 844 P.2d 839. Moreover, the issuing judge was permitted to read the affidavit in a
19 commonsense manner and make rational inferences. See Rubio, 2002-NMCA-007, ¶
9
1 9, 131 N.M. 479, 39 P.3d 144 (“[A] magistrate may make inferences from the
2 behavior described in the affidavit.”). Accordingly, the judge could permissibly have
3 given the term “recent” its commonly accepted meaning and inferred that the
4 information was not rendered stale by the passage of time, particularly in light of the
5 other factors. See, e.g., Gonzales, 2003-NMCA-008, ¶¶ 28-29 (upholding the issuance
6 of a search warrant despite the passage of a significant amount of time where similar
7 considerations ultimately supported the finding of probable cause).
8 Finally, Defendant attempts to analogize to Whitley and State v. Lovato, 118
9 N.M. 155, 879 P.2d 787 (Ct. App. 1994), two cases in which search warrants were
10 deemed improvidently issued. However, the analogy is inapt. Unlike the present case,
11 both Whitley and Lovato involved searches associated with reports of drug-related
12 activity in motel rooms. Because this case involves a search for durable goods at an
13 established residential location, rather than highly consumable goods at a transitory
14 habitation, Whitley and Lovato are inapplicable. See generally Gonzales,
15 2003-NMCA-008, ¶ 22 (observing that in this context, “the analysis in each case will
16 necessarily depend upon the weight given the unique facts and circumstances of each
17 case”).
10
1 CONCLUSION
2 For the reasons stated, we conclude that the first search warrant was adequately
3 supported by probable cause. We therefore conclude that the evidence ultimately
4 seized was not fruit of the poisonous tree. We therefore affirm.
5 IT IS SO ORDERED.
6 __________________________________
7 LINDA M. VANZI, Judge
8 WE CONCUR:
9 _________________________________
10 JONATHAN B. SUTIN, Judge
11 _________________________________
12 CELIA FOY CASTILLO, Judge
11