State v. Cordova

• Decision Date: 20 December 1989
• Docket Number: No. 18645,18645
• Citation: 784 P.2d 30,109 N.M. 211,1989 NMSC 83
• Parties: , 58 USLW 2416 STATE of New Mexico, Petitioner, v. Esequiel CORDOVA, Respondent.
• Court: New Mexico Supreme Court

Page 30

784 P.2d 30

109 N.M. 211, 58 USLW 2416

STATE of New Mexico, Petitioner, v. Esequiel CORDOVA, Respondent.

No. 18645.

Supreme Court of New Mexico.

Dec. 20, 1989.

[109 NM 211] Hal Stratton, Atty. Gen., Katherine Zinn, Asst. Atty. Gen., Santa Fe, for petitioner.

[109 NM 212] Jacquelyn Robins, Chief Public Defender, Jerry Todd Wertheim, Asst. Appellant Defender, Santa Fe, for respondent.

OPINION

RANSOM, Justice.

Respondent Cordova was convicted of possession of heroin. He appealed the denial of his motion to suppress evidence seized under an allegedly invalid search warrant. The court of appeals reversed his conviction, holding that the affidavit used to secure the warrant did not provide an adequate basis from which the issuing magistrate could conclude probable cause existed to search the house where Cordova resided at the time of his arrest.

The affidavit submitted to secure the search warrant in this case stated:

1. That within the last 24 hours, Affiant has been contacted by a Confidential Informant, who advised that a subject driving a red Chrysler Cordova with Texas Plates, was currently selling heroin at a residence at 1106 South Cahoon. That Subject John Doe was from out of town and had brought the heroin in.

2. That Said Informant stated that subject was a [S]panish male, approximately 6-0 tall, weighing a little over 200 pounds, having black hair and did have some tattoos on his person.

3. That Said Informant did state that through personal knowledge, several heroin users had been to this residence.

4. That Said Informant has furnished information to Affiant in the past which Affiant did find to be true and correct through personal knowledge and investigation.

5. That based on the information provided by Said Informant, Affiant did drive by the residence and did observe the red Cordova which did have a partial white vinyl roof. Description and the trailer house next to the house are the same as stated by Informant. Also, on checking utilities, it was learned that a Carol Cordova resided at this address.

The court of appeals based its determination that this affidavit was lacking on our rule of criminal procedure governing the issuance of warrants based on affidavits containing hearsay information. See SCRA 1986, 5-211(E). The court noted that our interpretations of Rule 5-211(E) have been based on the two-prong test formulated by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). However, as also noted by the court of appeals, the United States Supreme Court has since abandoned the Aguilar-Spinelli test in favor of a determination based on "the totality of circumstances." Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). We granted certiorari to determine the impact, if any, of the Gates decision on Rule 5-211(E). We conclude that our previous reading of this rule comports both with its plain meaning and with the requirement of the New Mexico Constitution that "no warrant * * * shall issue * * * without a written showing of probable cause, supported by oath or affirmation." N.M. Const. art. II, Sec. 10.¹ Moreover, although our analysis of the facts of this case differs from that of the court of appeals, we affirm the result reached by that court.

Federal law before Gates--The reasons behind the two-prong test of Aguilar and Spinelli. The fourth amendment of the federal constitution, like Article II, Section 10 of our state constitution, strongly favors the warrant process. This process requires law enforcement officials to make a showing of probable cause before a "neutral and detached magistrate" in order to obtain a search warrant. Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 368, 92 L.Ed. 436 (1948); see also State v. Baca, 97 N.M. 379, 640 P.2d 485 (1982). The intent of this requirement, and of the protection it affords,

is not [to deny] law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Johnson, 333 U.S. at 13-14, 68 S.Ct. at 368-69.

The constitutionally mandated role of magistrates and judges in the warrant process requires them to make "an informed and deliberate" determination whether probable cause exists. Aguilar v. Texas, 378 U.S. at 110, 84 S.Ct. at 1511 (quoting United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877 (1932)). Accordingly, when an application for a search warrant is based on an affidavit, the affidavit must contain sufficient facts to enable the issuing magistrate independently to pass judgment on the existence of probable cause. "Mere affirmance of belief or suspicion [by the affiant] is not enough." Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 13, 78 L.Ed. 159 (1933) (warrant improperly issued upon sworn affidavit stating simply that affiant "has cause and does believe" certain liquors were to be found in specified location); see also Baca, 97 N.M. at 382, 640 P.2d at 488 (bald and unilluminating assertion that defendant was known by informant to be involved in narcotics transactions is entitled to no weight in appraising judge's decision to issue warrant).

Frequently, applications for search warrants depend on unnamed, confidential, police informants to show the existence of probable cause. To analyze such cases, the Aguilar and Spinelli Courts refined the basic requirement that applications for search warrants must contain sufficient detail to enable an issuing magistrate to make an independent determination of the existence of probable cause. Although an affidavit may be based wholly or in part on hearsay provided by an unnamed informant, "the magistrate must be informed of some of the underlying circumstances from which the informant concluded that [the facts were as] he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant * * * was 'credible' or his information 'reliable.' " Aguilar, 378 U.S. at 114, 84 S.Ct. at 1514 (citations omitted); see also State v. Snedeker, 99 N.M. 286, 657 P.2d 613 (1982); State v. Perea, 85 N.M. 505, 513 P.2d 1287 (Ct.App.1973) (applying test to "double hearsay" problem). These requirements are often called the "basis of knowledge" and "veracity" (or "credibility") tests. See, e.g., Gates, 462 U.S. at 267, 103 S.Ct. at 2347 (White, J., concurring); Kamisar, Gates, "Probable Cause," "Good Faith," and Beyond, 69 Iowa Law Review 551, 556 (1984).

In Aguilar, the Court held an affidavit to be insufficient to support a search warrant when it stated simply that "Affiants have received reliable information from a credible person and do believe" that illegal drugs and paraphernalia were being kept at a particular residence. The Court found this affidavit lacking because it expounded neither the basis for the officers' conclusion that the information was gathered in a reliable way nor the basis for the conclusion that the informant was credible.²

In Spinelli, the Court explored two particular means by which a magistrate reasonably could conclude that an affidavit contained sufficient information to satisfy Aguilar's two prongs. First, the Court noted, an affidavit that otherwise would be inadequate nevertheless may support a determination of the existence of probable cause if "it fairly [can] be said that the tip * * * when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's tests without independent corroboration." 393 U.S. at 415, 89 S.Ct. at 588. Under the facts of Spinelli, however, Justice Harlan, writing for the Court, concluded that independent police investigation had verified only innocent facts that were not sufficiently suggestive of the illegal bookmaking activity alleged. Cf. Perea, 85 N.M. at 508-509, 513 P.2d at 1292-93 (affidavit established probable cause when it alleged that police officer had defendant's premises under surveillance for months, had seen several known narcotics users come and go, had observed fresh needle marks on some whom he stopped, and some whom he stopped admitted purchasing narcotics from defendant).

The Spinelli Court also opined that, even when an affidavit does not affirmatively state an informant's basis of knowledge, it may be inferred that an informant who otherwise is known to be credible obtained the information set forth in the affidavit in a reliable fashion if the tip contains enough detail to be self-verifying. Id. at 417, 89 S.Ct. at 589; see also Baca, 97 N.M. at 382, 640 P.2d at 488. The Spinelli Court concluded, however, that there was insufficient detail set forth in the affidavit in question to compensate for its failure to specify the factual basis for the informant's tip.³

New Mexico's rules of criminal procedure. In New Mexico, this Court has promulgated rules to govern the determination of probable cause for the issuance of a search warrant. Under SCRA 1986, 5-211(E),⁴

"[P]robable 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. Before ruling on a request for a warrant the court may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such additional evidence shall be reduced to writing, supported by oath or affirmation and served with the warrant.

(Emphasis added.) As first recognized by the court of appeals in Perea, and by this Court in State v. Turkal, 93 N.M. 248, 599 P.2d 1045 (1979), our...