State v. Gonzales

• Decision Date: 26 November 2002
• Docket Number: No. 22,340.,22,340.
• Citation: 61 P.3d 867,2003 NMCA 8,133 N.M. 158
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Joshua GONZALES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

61 P.3d 867

133 N.M. 158

2003 NMCA 8

STATE of New Mexico, Plaintiff-Appellee, v. Joshua GONZALES, Defendant-Appellant.

No. 22,340.

Court of Appeals of New Mexico.

November 26, 2002.

Certiorari Granted January 16, 2003.

Patricia A. Madrid, Attorney General, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Granted, No. 27,842, January 16, 2003.

OPINION

WECHSLER, Judge.

{1} In this appeal, we examine the sufficiency of an affidavit submitted in support of a warrant to search a home for a gun six weeks after a reported assault with a deadly weapon. Defendant appeals the denial of his motion to suppress evidence seized as a result of the search warrant. He argues that the search warrant was invalid because (1) the information in the affidavit in support of the search warrant was stale, and (2) the warrant was overly broad in its description of the property to be seized. We affirm.

Factual and Procedural Background

{2} On September 21, 2000, Officer David De Los Santos of the Roswell Police Department submitted an affidavit in support of an application for a search warrant. The affidavit contained the following facts.

{3} On August 8, 2000, the Roswell Police Department received a telephone call from Delia Serna (the victim) about an alleged assault with a deadly weapon. The victim reported that while she was in the backyard of her home that day hanging laundry out to dry, she saw Defendant, whom she knew as Josh Gonzales, point a gun at her from the backyard of his home across the alley. The victim stated that, upon seeing Defendant with the gun, she ran back into her house and heard what she thought were three or four gun shots.

{4} Officer Eric Hiatt responded to the call and took the victim's statement. He inspected the area of the alleged shooting but did not find any shell casings or damage to the victim's home or nearby residences. He also went to Defendant's home to question him about the alleged incident. Defendant informed the officer that he had gone outside that day to take out the garbage, that he did not have a gun, and that he did not shoot at anyone.

{5} Approximately five-and-a-half weeks later, on September 13, 2000, Richard Peralta, the father of the victim, contacted the Roswell Police Department for help in evicting his son, Jonathon. The affiant, Officer De Los Santos, responded to the call. Mr. Peralta informed the affiant that he wanted Jonathon to move out of the family home because of an ongoing feud between Jonathon and Defendant. Mr. Peralta stated that the conflict arose while Jonathon and Defendant were in jail together and persisted after their release. Mr. Peralta indicated that he had recently asked Jonathon to move out of the home to prevent another altercation with Defendant. Mr. Peralta told the affiant that he was afraid Defendant was going to shoot at his home and injure his grandchildren.

{6} The next day, the affiant interviewed the victim a second time about the events of August 8. She gave much the same information as before; however, this time she included additional details and a slightly different sequence of events. In her second interview, the victim added that she saw not only Defendant, but his girlfriend with him at the time of the shooting. In addition, she specifically recalled Defendant having pointed a chrome handgun at her. She also recalled that she froze when she saw the gun, heard approximately five shots, and then ran into the house. When asked how she knew Defendant, the victim responded that she knew Defendant had a problem with her brother.

{7} The affidavit was submitted to the magistrate six weeks and two days after the reported brandishing and shooting incident. The affidavit sought permission to search Defendant's residence for "any handgun or any pieces of any handgun, any paperwork showing ownership of any handgun, any receipts for any handgun, [any] ammunition for any handgun, [any] carrying devices for any handgun, and cleaning supplies for any handgun." The magistrate found probable cause to issue the search warrant. Upon executing the warrant, the police seized the following items from Defendant's home: a .357 Ruger Blackhawk revolver, assorted ammunition, a gun-cleaning kit, a set of ear plugs, and a bag of marijuana. Because the gun had been reported stolen, Defendant was charged with one count of receiving stolen property, contrary to NMSA 1978, § 30-16-11 (1987).

{8} Defendant moved to suppress the evidence, arguing that the information in the affidavit was stale and that the search warrant was overly broad in its description of the property to be seized. At the suppression hearing, the parties stipulated that (1) the affidavit for the search warrant was based on a single, isolated incident; and (2) the only reason for the delay in obtaining the search warrant was that the police had more pressing cases to investigate. Because the parties agreed that the motion to suppress raised issues of law to be decided on the facts already in the record, no testimony was presented at the hearing. After hearing argument from counsel, the district court took the motion under advisement.

{9} The district court issued a letter ruling denying the motion to suppress. It determined that the description in the affidavit was sufficiently particular. It also concluded that the information in the affidavit was not stale. Specifically, the district court noted that it was reasonable to infer that a person would hold onto a gun for use at a later time. Relying on both New Mexico law and cases from other jurisdictions, the district court concluded that the six-week delay in this case did not render the search warrant stale.

{10} After entry of an order denying the motion to suppress, Defendant entered a plea of no contest to the offense of receiving stolen property, reserving the right to appeal the denial of the motion to suppress. The judgment and sentence was entered on April 12, 2001, and this appeal followed.

Standard of Review

{11} We first review the standards applicable to search warrants in New Mexico. A search warrant may not issue unless sufficient facts are presented in a sworn affidavit to enable the magistrate to make an informed, deliberate, and independent determination that probable cause exists. Rule 5-211(A), (E) NMRA 2002; State v. Lujan, 1998-NMCA-032, ¶ 3, 124 N.M. 494, 953 P.2d 29. Probable cause to issue the warrant requires a factual showing that, at the time of the application for the warrant, evidence relating to the commission of a crime exists on the premises sought to be searched. State v. Sansom, 112 N.M. 679, 681, 818 P.2d 880, 882 (Ct.App.1991); State v. Donaldson, 100 N.M. 111, 115, 666 P.2d 1258, 1262 (Ct.App.1983). Thus, information which is "stale" will not support a finding of probable cause.

{12} The degree of proof necessary to establish probable cause for the issuance of a search warrant "is more than a suspicion or possibility but less than a certainty of proof." Donaldson, 100 N.M. at 116, 666 P.2d at 1263. Thus, the magistrate must have sufficient facts upon which to conclude that there is a reasonable probability that evidence of a crime will be found in the place to be searched. State v. Garcia, 79 N.M. 367, 368, 443 P.2d 860, 861 (1968) (stating that probable cause determination involves consideration of "reasonable probabilities"); State v. Knight, 2000-NMCA-016, ¶ 20, 128 N.M. 591, 995 P.2d 1033 (explaining that in determining whether probable cause exists, "the court works in the realm of probabilities rather than in the realm of certainty"). The affidavit must be considered as a whole, and the magistrate may draw reasonable inferences from the facts and circumstances alleged in the affidavit. See State v. Snedeker, 99 N.M. 286, 290, 657 P.2d 613, 617 (1982); Lujan, 1998-NMCA-032, ¶ 11, 124 N.M. 494, 953 P.2d 29.

{13} In examining the sufficiency of an affidavit submitted to the magistrate, this Court conducts the same review as the district court. State v. Wisdom, 110 N.M. 772, 775, 800 P.2d 206, 209 (Ct.App.1990),overruled on other grounds by State v. Barker, 114 N.M. 589, 594, 844 P.2d 839, 844 (Ct.App.1992). We apply a de novo standard of review to the magistrate's legal conclusion that the affidavit for a search warrant is supported by probable cause. State v. Whitley, 1999-NMCA-155, ¶ 3, 128 N.M. 403, 993 P.2d 117; State v. Steinzig, 1999-NMCA-107, ¶ 15, 127 N.M. 752, 987 P.2d 409 (noting that legal sufficiency of the contents of an affidavit is a question of law we review de novo); Wisdom, 110 N.M. at 774,800 P.2d at 208 (observing that "the ultimate question of whether the contents of the affidavit are sufficient is a conclusion of law"). In other words, we review de novo the magistrate's application of the law to the facts.

{14} However, in our review, we give deference to the magistrate's reasonable factual inferences underlying the probable cause determination. See Snedeker, 99 N.M. at 290, 657 P.2d at 617 ("All direct and circumstantial evidence alleged, as well as all reasonable inferences to be drawn from those allegations, should be considered."); Steinzig, 1999-NMCA-107, ¶ 15, 127 N.M. 752, 987 P.2d 409 ("On appeal we review the evidence submitted in support of a search warrant in the light most favorable to the factual determination made by the issuing judge or magistrate below, resolve all conflicts in the evidence, and indulge all reasonable inferences in support of that judge."); Sansom, 112 N.M. at 682, 818 P.2d at 883 (noting that appellate court defers to magistrate's inferential chain unless quantum of evidence underlying the probable cause determination is insufficient as a matter of law); Wisdom, 110 N.M. at 774, 800 P.2d at 208 (stating that reviewing court must defer to factual determinations by magistrate...