1998 -NMCA- 69, Shon Daniel K., In re

• Decision Date: 30 March 1998
• Docket Number: No. 18626,18626
• Citation: 959 P.2d 553,125 N.M. 219,1998 NMCA 69
• Parties: , 1998 -NMCA- 69 In re SHON DANIEL K., a Child.
• Court: Court of Appeals of New Mexico

Page 553

959 P.2d 553

125 N.M. 219, 1998 -NMCA- 69

In re SHON DANIEL K., a Child.

No. 18626.

Court of Appeals of New Mexico.

March 30, 1998.

Certiorari Denied May 11, 1998.

Tom Udall, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, for Petitioner-Appellant.

Eric D. Dixon, Attorney and Counselor at Law, P.A., Portales, for Respondent-Appellee.

OPINION

DONNELLY, Judge.

¶1 The State appeals from an order of the children's court suppressing evidence obtained pursuant to a search warrant issued by a magistrate judge to search a residence occupied by the Child. The dispositive question presented on appeal is whether the affidavit tendered in support of the search warrant was sufficient to provide a basis for believing the information attributed to the unnamed informants mentioned in the affidavit was credible. For the reasons discussed herein, we affirm.

FACTS

¶2 During the early morning hours of December 14, 1996, a burglary occurred at the Portales Country Club in Portales, New Mexico. Among the items taken were thirty-nine bottles of liquor, a number of golf clubs, and a clock. Most of the liquor bottles that were stolen bore "Crown Royal" brand labels.

¶3 On February 6, 1997, the Portales City Police Department was contacted by an individual who gave them a statement indicating that the informant had been contacted by a juvenile, Chris M., and that he had been offered alcoholic beverages, including some of the Crown Royal liquor bottles stolen from the Portales Country Club. The police took a statement from a second informant the next day. Based on the investigation of the burglary, other information concerning the names of the individuals residing at the address in question and the statements from the two undisclosed informants, the police prepared an affidavit for a search warrant for the search of the residence located at 813 North Avenue N in Portales. The affidavit recited in part:

On February 6, 1997, Officer Rudy Roybal took a recorded statement from a concerned citizen. The concerned citizen came forward of their [sic] own accord and did so without any promise of reward. The citizen was not working off any criminal charges or receive [sic] any preferential treatment for any pending cases. The citizen related that they [sic] had been contacted by Chris [M.] and offered alcoholic beverages. The citizen related that they [sic] were offered Crown Royal for $10.00 a bottle. The citizen related that the beverages were represented to have been stolen from the country club, by [Chris M.] and [Shon K.]. The citizen further related that on other occasions they had been at the above residence and been supplied with alcoholic beverages by [Chris M.] and [Shon K .].

On February 7, 1997, Officer Roybal took a statement from another concerned citizen. This citizen also related that [Chris M.] had offered alcoholic beverages for sale. This citizen came forward of their [sic] own accord, without promise of reward or special consideration for any pending charges. This citizen related that within the last 48 hours they [sic] had been in the residence at 813 N. Ave. N. The citizen related that they [sic] had seen bottles of Crown Royal inside the residence. The citizen stated some of the bottles were half full and others appeared to be unopened. The citizen related that this residence is still occupied by Chris [M.], Shon [K.] and Chad [B.].

¶4 The affidavit submitted in support of the search warrant also recited that on October 18, 1996, Portales police officers responded to a report of a fight at 831 North Avenue N in Portales; that Chris M., Shon K., and Chad B. lived at such residence; that several juveniles had been consuming alcoholic beverages at the residence; and that "[n]o one at the residence was of legal drinking age." After submitting the affidavit to a magistrate judge, the judge approved the issuance of a search warrant on February 7, 1997.

¶5 The Child filed a motion to suppress the evidence seized as a result of the execution of the search warrant. Following a hearing on June 23, 1997, the children's court issued an order granting the motion to suppress. The order stated, in part, that "the affidavit for search warrant is defective [because] it fails to set forth both a substantial basis for believing the informant[s] and a substantial basis for concluding the informant[s] gathered the information of alleged illegal activities in a reliable fashion."

DISCUSSION

¶6 Did the affidavit submitted in support of the search warrant, which was based primarily on information provided by undisclosed informants, set forth sufficient information from which the issuing magistrate judge could reasonably find the existence of probable cause for its issuance? More specifically, did the affidavit set forth sufficient facts to satisfy the two-pronged Aguilar-Spinelli¹ test articulated in State v. Cordova, 109 N.M. 211, 784 P.2d 30 (1989) and Rule 5-211(E) NMRA 1998, promulgated by the Supreme Court? We conclude that the children's court properly determined that the affidavit submitted in support of the issuance of the search warrant was insufficient to establish probable cause.

¶7 The protections accorded under Article II, Section 10 of the New Mexico Constitution against unreasonable searches and seizures are more extensive than those provided under the Fourth Amendment to the United States Constitution. See Campos v. State, 117 N.M. 155, 158, 870 P.2d 117, 120 (1994) (state constitution imposes heightened probable cause requirement); State v. Attaway 117 N.M. 141, 149-50, 870 P.2d 103, 111-12 (1994) (holding "knock and announce" requirement implicit in state constitutional search and seizure provision); State v. Gutierrez, 116 N.M. 431, 446-47, 863 P.2d 1052, 1067-68 (1993) (holding federal "good faith" exception incompatible with provisions of state constitution); Cordova, 109 N.M. at 217, 784 P.2d at 36 ("totality of circumstances" test for determining existence of probable cause for issuance of search warrant found to be incompatible with state constitutional safeguards).

¶8 In reviewing the sufficiency of an affidavit submitted in support of the issuance of a search warrant, we apply a de novo standard of review. Attaway, 117 N.M. at 145, 870 P.2d at 107; see also State v. Wisdom, 110 N.M. 772, 774, 800 P.2d 206, 208 (Ct.App.1990) ("[T]he ultimate question of whether the contents of the affidavit are sufficient is a conclusion of law."). In carrying out our review of the validity of the affidavit for the issuance of the search warrant, we consider only the content of the sworn affidavit submitted to the issuing magistrate judge. State v. Hernandez, 111 N.M. 226, 227, 804 P.2d 417, 418 (Ct.App.1990). We are mindful of the admonitions that a reviewing court should not impose technical requirements on an affidavit nor insist on elaborate specificity, but instead we should apply a common-sense reading of the affidavit, while bearing in mind that such affidavits are generally prepared by police officers who are not lawyers. State v. Donaldson, 100 N.M. 111, 116, 666 P.2d 1258, 1263 (Ct.App.1983); see also State v. Snedeker, 99 N.M. 286, 290, 657 P.2d 613, 617 (1982) (disapproving a " 'grudging or negative attitude by reviewing courts toward warrants [that would] tend to discourage police officers from submitting their evidence to a judicial officer before acting' " (quoting United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965))).

¶9 Although reviewing courts do not apply elaborate or overly technical requirements in evaluating the sufficiency of affidavits, nevertheless, decisions of our Supreme Court make clear that applications for search warrants must set forth sufficient factual detail to enable an issuing magistrate judge to make an independent determination of the existence of probable cause prior to the issuance of a search warrant. See Cordova, 109 N.M. at 213, 784 P.2d at 32; Snedeker, 99 N.M. at 290, 657 P.2d at 617; see also Rule 5-211(E). In exercising this independent evaluation, the magistrate judge cannot rely on mere conclusory statements contained in the affidavit; instead, he or she must be provided with sufficient information to permit the court to evaluate (1) the basis for the affiant's and any informant's knowledge indicating the information relied upon was gathered in a reliable way; and (2) facts indicating that the informant or informants are credible or the information in the affidavit is accurate and worthy of belief. Cordova, 109 N.M. at 213, 784 P.2d at 32; see also State v. Pargas, 1997-NMCA-110, p 7, 124 N.M. 249, 948 P.2d 267.

¶10 The Child argues that the children's court correctly determined that the affidavit for the issuance of the search warrant did not set forth sufficient facts to satisfy the second requirement of the Aguilar-Spinelli test adopted by our Supreme Court in Cordova and by Rule 5-211(E). Rule 5-211(E), promulgated by our Supreme Court, provides, in pertinent part:

As used in this rule, "probable cause" shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.

¶11 The informants relied upon in the affidavit in question are unnamed. Although it may be inferred that the police knew their identities, the affidavit is silent as to the reason for their nondisclosure. As observed in Wisdom, 110 N.M. at 776, 800 P.2d at 210, while it is true that an affidavit may be based wholly or in part on hearsay from an unnamed informant, when the informant is not identified, the affidavit must set forth sufficient information from which the court can reasonably determine that the facts were as the informant has asserted and that the information provided by the informant's statements is reliable. See also Rule 5- 211(...