State v. Granville

• Decision Date: 09 June 2006
• Docket Number: No. 25,005.,25,005.
• Citation: 2006 NMCA 098,142 P.3d 933
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Kevin GRANVILLE, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

142 P.3d 933

2006 NMCA 098

STATE of New Mexico, Plaintiff-Appellant, v. Kevin GRANVILLE, Defendant-Appellee.

No. 25,005.

Court of Appeals of New Mexico.

June 9, 2006.

Certiorari Granted, No. 29,890, August 22, 2006.

COPYRIGHT MATERIAL OMITTED

Patricia A. Madrid, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellant.

John Bigelow, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

OPINION

CASTILLO, Judge.

{1} This case deals with the sufficiency of a search warrant. The determining question, however, is whether Article II, Section 10, of the New Mexico Constitution prohibits the warrantless search of an individual's garbage bags placed in trash containers located in an alley behind a residence. Because we conclude that existing precedent and New Mexico's distinct characteristics support an expectation of privacy in one's refuse put out for collection, we depart from federal Fourth Amendment jurisprudence and hold that Article II, Section 10, precludes the warrantless search of garbage in these circumstances. Accordingly, we affirm the trial court.

I. BACKGROUND

{2} The State appeals the trial court's grant of a motion to suppress filed by Defendant, Kevin Granville. The trial court ruled that the affidavit in support of the search warrant was insufficient to establish probable cause. The State contends that the court erred because the affidavit established probable cause on its face.

{3} At the hearing on Defendant's motion, Lea County Drug Task Force Agent Jon Martinez testified to the following facts. On January 29, 2004, he and Agent James Torres seized sealed garbage bags from trash containers located in the alley behind the residence of Alton Granville, Defendant's brother. The officers placed the bags in the back of a pickup and removed the bags from the premises. At their office, Agents Martinez and Torres untied the bags, searched the contents, and found items known to be used by drug traffickers. The officers discovered plastic sandwich bags with the corners removed, small pieces of burnt aluminum foil, and a small plastic bag containing trace amounts of a white powdery substance that field-tested positive as a cocaine-based substance. They also discovered a gas bill in Defendant's name with the address of the residence and two other documents with the same address but in the names of two other persons.

{4} Later that same day, Agent Martinez obtained a search warrant for the residence. Probable cause for the search warrant rested on Agent Martinez's affidavit, which provided two types of information: tips obtained from three unidentified informants and evidence obtained from the garbage search.

{5} The subsequent search of the home revealed illegal drugs. Defendant was charged with one count of possession of a controlled substance, crack cocaine, in violation of NMSA 1978, § 30-31-23(D) (1990) (amended 2005), and one count of possession of a controlled substance, marijuana, in violation of Section 30-31-23(B).

{6} Defendant filed two motions to suppress. The first motion alleged that Defendant's rights, under the Fourth Amendment of the United States Constitution and Article II, Section 10, of the New Mexico Constitution, were violated because, inter alia, Defendant's expectation of privacy in the contents of the garbage bags was reasonable. Defendant asserted that the search of the garbage bags was an illegal state action and therefore impermissibly tainted the search warrant and subsequent actions taken in reliance on the search warrant. Defendant's second motion to suppress expressly incorporated his first motion. In his second motion, Defendant also alleged that the informants' information in the affidavit did not satisfy the credibility and reliability prongs of the Aguilar-Spinelli test or meet the staleness test. See State v. Cordova, 109 N.M. 211, 214, 217, 784 P.2d 30, 33, 36 (1989) (retaining the Aguilar-Spinelli test for probable cause based on hearsay); State v. Gonzales, 2003-NMCA-008, ¶ 11, 133 N.M. 158, 61 P.3d 867 ("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. Thus, information which is `stale' will not support a finding of probable cause." (citations omitted)); see also Spinelli v. United States, 393 U.S. 410, 415-17, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), abrogated by Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), abrogated by Gates, 462 U.S. at 238, 103 S.Ct. 2317.

{7} After a hearing, the trial court granted Defendant's second motion to suppress. The court concluded that the affidavit did not adequately establish probable cause because the information from the informants did not meet the Aguilar-Spinelli test. When asked by the State to take into consideration the evidence discovered in the trash search, the trial court replied, "I don't feel that it comes up to probable cause; I don't. You certainly have leave to take it up on appeal if you believe that it does. But at this juncture, I don't believe that the affidavit is sufficient to issue the search warrant on." Without further elaboration, the trial court issued an order granting Defendant's motion to suppress.

{8} The State appeals the trial court's grant of Defendant's motion. As the State contended below, it contends on appeal that the trial court erred when it invalidated the warrant because the warrant established probable cause on its face. Although the State concedes that the informants' information alone was insufficient, the State argues that the evidence obtained in the search of the trash was adequate to establish probable cause and that the informants' information served to corroborate the trash evidence. The State's position is that the affidavit, viewed as a whole, was sufficient to establish probable cause.

II. DISCUSSION

A. Standard of Review

{9} We examine de novo, as a matter of law, the sufficiency of an affidavit that supports a search warrant. In re Shon Daniel K., 1998-NMCA-069, ¶ 8, 125 N.M. 219, 959 P.2d 553. Threshold constitutional issues are also reviewed de novo. State v. Snyder, 1998-NMCA-166, ¶ 6, 126 N.M. 168, 967 P.2d 843. Because the State concedes that the informants' information was insufficient to establish probable cause, we first consider the state constitutional issue and determine whether the evidence discovered in the garbage search can be used to establish probable cause.

B. State Constitutional Claim

1. Interstitial Analysis

{10} When examining a state constitutional issue, we must apply the three-step interstitial approach set out in State v. Gomez, 1997-NMSC-006, ¶¶ 19, 22-23, 122 N.M. 777, 932 P.2d 1. State v. Cardenas-Alvarez, 2001-NMSC-017, ¶ 6, 130 N.M. 386, 25 P.3d 225. We ask first whether the right asserted by Defendant is protected by the Fourth Amendment. Cardenas-Alvarez, 2001-NMSC-017, ¶ 6, 130 N.M. 386, 25 P.3d 225. If the right is protected by the Fourth Amendment, we proceed no further. Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1; see also Cardenas-Alvarez, 2001-NMSC-017, ¶ 6, 130 N.M. 386, 25 P.3d 225. If, however, the right is not protected by the Fourth Amendment, we look to preservation. Cardenas-Alvarez, 2001-NMSC-017, ¶¶ 5, 10-11, 130 N.M. 386, 25 P.3d 225. If the state constitutional claim was properly preserved, we continue our analysis to determine whether one of three established reasons exists to justify diverging from federal precedent. Id. ¶ 14. This final step is addressed by asking if (a) the federal analysis is flawed or undeveloped, (b) structural differences exist between federal and state government, or (c) distinctive state characteristics exist that would support the departure. Id.; Gomez, 1997-NMSC-006, ¶¶ 19-20, 122 N.M. 777, 932 P.2d 1. If we can answer yes to one of these three questions, our state constitution may provide greater protections than its federal counterpart. We begin our discussion by reviewing Fourth Amendment precedent.

a. Fourth Amendment Protection

{11} It is well established that the Fourth Amendment does not protect an individual from a warrantless search of garbage set out for collection. California v. Greenwood, 486 U.S. 35, 37, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988); United States v. Long, 176 F.3d 1304, 1308 (10th Cir.1999). In coming to this conclusion, the Supreme Court used the two-prong test from Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Greenwood, 486 U.S. at 39, 108 S.Ct. 1625. The first prong of the Katz test asks if a person has exhibited an actual (subjective) expectation of privacy; the second question is whether that expectation is one that society is prepared to recognize as reasonable. 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring). The Greenwood Court acknowledged the respondents' assertions that they had exhibited a subjective expectation of privacy. 486 U.S. at 39, 108 S.Ct. 1625. However, the Supreme Court found it unnecessary to determine whether this assertion of actual expectation of privacy was sufficient; the Court's conclusion that society would not find this expectation of privacy reasonable was dispositive. Id. at 41, 108 S.Ct. 1625. Recognizing that the Fourth Amendment does not protect an individual's privacy in garbage set out for collection, we proceed with the interstitial analysis to determine whether Defendant preserved his state constitutional claim.

b. Preservation of the State Constitutional Claim

{12} The State argues that Defendant has not adequately preserved his state constitutional claim because he invoked no ruling on his first motion to suppress, which argued the issue, and made no Article II, Section 10, argument...