State v. Dietrich, 25,220.

CourtCourt of Appeals of New Mexico
Citation204 P.3d 748,2009 NMCA 031
Docket NumberNo. 25,220.,25,220.
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Tom DIETRICH, Defendant-Appellant.
Decision Date08 January 2009

Gary K. King, Attorney General, Chris Conlee, Assistant Attorney General, Santa Fe, NM, for Appellee.

Hugh W. Dangler, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellant.



{1} Defendant Tom Dietrich was convicted of criminal sexual contact of a minor (CSCM) and two counts of contributing to the delinquency of a minor (CDM) following a jury trial. The victims that testified in the jury trial were R.P. and C.L. Another victim, J.O., did not show up for trial, and ten criminal counts relating to him were dropped. Defendant was also convicted of two counts of sexual exploitation of children following a bench trial. On appeal, Defendant contests convictions arising from both trials, raising nine points of error. We affirm, addressing each of Defendant's points of error in turn.


{2} This case began in May 2002, when Defendant reported that his house had been burglarized. Detective James Harris began an investigation into the reported burglary and interviewed Defendant's neighbors. Defendant had listed one of the alleged victims in this case, J.O., as a suspect in the burglary. Detective Harris went to the scene of the burglary and spoke with neighbors who reportedly had been seen with J.O. The detective related that Defendant listed two other people as potential suspects in the burglary and claimed that all three people had access to Defendant's residence. Detective Harris discovered that all three suspects had "free rein in and out of the residence" and were living with Defendant on and off.

{3} Detective Harris first made contact with J.O. on May 30, 2002. At first, J.O. concealed his identity. He later made an allegation that Defendant tried to rape him. The investigation of the burglary thereafter developed into an investigation about sexual misconduct on the part of Defendant. Detective Harris subsequently obtained search warrants for Defendant's residence that resulted in evidence inculpatory to Defendant's being seized. Defendant was indicted on July 25, 2002, and his jury trial commenced on November 3, 2003. We discuss pertinent facts as they relate to each issue below.

1. Affidavit

{4} Defendant argues that the affidavit for the search warrants was insufficient because it was based on unreliable information, violating his right against unreasonable searches and seizures under the Fourth Amendment and the New Mexico Constitution. Defendant's brief refers to "the affidavit" for the first of three search warrants that Detective Harris obtained. At trial, Defendant objected to evidence obtained under all warrants. We note that the factual information in the affidavit for the first search warrant formed a common basis for all warrants, and we address the sufficiency of the one affidavit as it affects the three warrants executed on Defendant's premises. Before trial, Defendant sought to have evidence against him suppressed based on deficiencies in the warrants. The district court denied Defendant's motion to suppress.

Standard of Review

{5} The district court applies "a de novo standard of review to a magistrate's determination that an affidavit for a search warrant alleges facts sufficient to constitute probable cause." State v. Nyce, 2006-NMSC-026, ¶ 8, 139 N.M. 647, 137 P.3d 587. This Court conducts the same review as the district court. State v. Gonzales, 2003-NMCA-008, ¶ 13, 133 N.M. 158, 61 P.3d 867. We limit our review to the contents of the affidavit and apply a common-sense reading, considering the document as a whole "to determine whether the issuing judge made an ... independent determination of probable cause based on sufficient facts." Nyce, 2006-NMSC-026, ¶ 8, 139 N.M. 647, 137 P.3d 587 (alteration in original) (internal quotation marks and citation omitted); see State v. Steinzig, 1999-NMCA-107, ¶ 14, 127 N.M. 752, 987 P.2d 409. The affidavit presented to the magistrate must demonstrate "probable cause to believe that a crime is occurring or that seizable evidence exists at a particular location." Nyce, 2006-NMSC-026, ¶ 9, 139 N.M. 647, 137 P.3d 587. The magistrate's decision, however, must have been objectively reasonable, which is of special import when considering the search of a home. Id. ¶¶ 11-12.

{6} Probable cause "may be [based on] 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." State v. Cordova, 109 N.M. 211, 214, 784 P.2d 30, 33 (1989) (emphasis omitted) (internal quotation marks and citation omitted); Rule 5-211(E) NMRA. Double hearsay can support probable cause. See State v. Perea, 85 N.M. 505, 509, 513 P.2d 1287, 1291 (Ct.App.1973). Defendant contests the reliability of the information that made up the affidavit and its substance. We therefore review the information and its legal sufficiency de novo. Steinzig, 1999-NMCA-107, ¶ 15, 127 N.M. 752, 987 P.2d 409 ("[W]hether the contents of an affidavit are legally sufficient is a question of law which we review de novo.").

The Investigation

{7} The following facts were contained in the affidavit submitted to the magistrate in this case. Detective Harris was a full-time, salaried, and certified law enforcement officer investigating a burglary that Defendant reported at his house. After Detective Harris began the investigation of the burglary, he received the name of one suspect, J.O., and made contact with him. J.O. responded to Detective Harris's questioning about his relationship with Defendant by stating: "That mother fucker [sic] tried to rape me." J.O. stated that he had spent time living with Defendant from the time he was thirteen until as recently as May of 2002. He also alleged that Defendant repeatedly made sexual advances toward him, had sodomized him before he reached the age of eighteen, and had taken "nude or sexually explicit pictures of him ... without his consent," pictures that could be found on Defendant's computer. J.O. told Detective Harris to contact J.B., an inmate at the juvenile detention center in Albuquerque, ostensibly to corroborate J.O.'s statements.

{8} When Detective Harris questioned J.B. at the juvenile detention center, J.B. declined to make any statements. Detective Harris spoke to an employee of this detention center, unnamed in the affidavit, who told the detective that there had been other similar allegations made against Defendant. This employee also told Detective Harris about an incident in which Defendant had delivered a cupcake to J.B. with a note stating "I am your daddy."

{9} Detective Harris spoke with J.O.'s girlfriend Darlene Gonzales, who told the detective that after she had an altercation with J.O., Defendant told her that he was going to drug J.O. "to the point of incapacitation and then have sex with him."

{10} Detective Harris further spoke with a person referred to in the affidavit as the supervisor in charge of adult probation and parole in Valencia County. Harris was told that although Defendant had worked there, he had been discharged for "misconduct" involving clients. The detective also spoke with unnamed persons at the sheriff's office in Valencia County. One sheriff's deputy who had responded to reports of parties at Defendant's home found "numerous young juvenile males" present. Another unnamed sheriff's deputy reported to the detective that he had dealt with Defendant, that Defendant had "three or four young [male] juveniles" with him on that occasion, and that he believed that there was alcohol present. The deputy also believed those juveniles to have been clients within the juvenile probation system. Additionally, when Detective Harris contacted the game and fish department of Sierra County, he discovered that Defendant had been arrested for contributing to the delinquency of a minor during an incident near Elephant Butte Lake.

{11} J.O. also made allegations that Defendant was reporting burglaries in order to defraud his insurance company and that Defendant had previously reported that his home was burglarized. Detective Harris checked three reports filed by Defendant and noted several inconsistencies among them, including the possible listing of duplicate items. Detective Harris requested a search warrant based on all of these facts, and the magistrate judge authorized it.

Hearsay, Named and Unnamed Informers

{12} "[I]t is necessary that the affidavit provide a factual basis for the informant's personal knowledge," such as dealings with or observations of the defendant. State v. Baca, 97 N.M. 379, 381, 640 P.2d 485, 487 (1982). When facts provided by an informer are independently corroborated, we accord greater weight to the informer's credibility. See Steinzig, 1999-NMCA-107, ¶ 21, 127 N.M. 752, 987 P.2d 409. Identifying an "informant" by name is a significant factor in determining the veracity or reliability of the information. See id. ¶ 19. "[A] named informant has greater incentive to provide truthful information because he or she is subject to unfavorable consequences for providing false or inaccurate information to a greater degree than an unnamed or anonymous individual." Id.

{13} Defendant argues that the affidavit in this case was constitutionally inadequate because it did not "satisfy the basis of knowledge or the credibility prong of the Aguilar Spinelli test." See generally Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). This Court noted in Steinzig that the strictures of Aguilar-Spinelli "were aimed primarily at unnamed police informers." Steinzig, 1999-NMCA-107, ...

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