State v. Gutierrez

• Decision Date: 07 March 1978
• Docket Number: No. 3016,3016
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Marcella GUTIERREZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 440

577 P.2d 440

91 N.M. 542

STATE of New Mexico, Plaintiff-Appellee, v. Marcella GUTIERREZ, Defendant-Appellant.

No. 3016.

Court of Appeals of New Mexico.

March 7, 1978.

William D. Teel, Acting Chief Public Defender, Douglas A. Barr, Asst. Appellate Defender, Roger Bargas (Trial Atty.), Dist. Public Defender, Santa Fe, for defendant-appellant.

Toney Anaya, Atty. Gen., Roderick A. Dorr, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

SUTIN, Judge.

Defendant was convicted of trafficking heroin in violation of § 54-11-20(B) (1), N.M.S.A.1953 (Repl. Vol. 8, pt. 2, 1975 Supp.). She appeals. We affirm.

This appeal arises out of a pre-trial motion to suppress the evidence. A hearing was held and the motion was denied.

On March 10, 1976, a search warrant was served on Marcella Gutierrez while she was visiting a prisoner at the state penitentiary. Four one-gram balloons of heroin were found on her person.

Following defendant's arrest the state police agent obtained another warrant to permit search of defendant's residence. The police with the warrant reached her home a few minutes before defendant who, according to plan, was being transported there in the custody of an officer. The state agent had been told by Ms. Gutierrez that the only person at home was defendant's son, though defendant had not said how old the child was. Before Ms. Gutierrez arrived the state agent knocked and announced himself; when no one answered, he forced the lock and entered. The police then waited for defendant to arrive before searching the premises in her presence. Additional heroin and paraphernalia for its use were discovered in the house.

The search warrants were signed by a district judge. The affidavits were signed by a police officer and the pertinent part of the initial affidavit reads as follows:

A RELIABLE INFORMANT ADVISED ME ON MARCH 9, 1976, AND THE 10TH THAT MARCELLA GUTIERREZ * * * STATED IN THE PRESENCE OF THIS INFORMANT THAT SHE INTENDED TO SMUGGLE HEROIN INTO THE PENITENTIARY OF NEW MEXICO, TO EDWARD L. SANDOVAL . . . DURING A REGULAR VISIT ON MARCH 10TH. THIS INFORMANT HAS GIVEN RELIABLE INFORMATION IN THE PAST 18 MONTHS WHICH WAS (sic) RESULTED IN OVER 20 ARRESTS AND 5 FELONIES (sic) CONVICTIONS TOGETHER WITH THE SEIZURE OF VARIOUS CONTROLLED SUBSTANCES AS CONTRABAND. (Emphasis added.)

At the hearing, the district judge testified that he swore the officer as to the truth of the matter stated in the affidavits and then read the contents carefully. The judge was aware of the fact that the warrants were sought upon the information of an informant, and based upon the totality of the facts stated, the judge believed that the informant was reliable and that probable cause existed. He then signed the search warrants presented to him. The affiant police officer testified that he was present on ten occasions at which time the informant gave information on prior arrests. On other occasions, the informant gave information to other police officers with whom he worked. Of the ten cases referred to, all occurred within 18 months of the date of the search warrant.

To protect the informant, the trial court disallowed testimony as to the informant's knowledge of convictions obtained against persons trafficking in narcotics. The police officer was ordered to place in a sealed envelope the names and style of cases in which convictions were obtained. The sealed envelope was placed in the office of the clerk of the district court to be sent to this Court in the event of an appeal. The sealed envelope, on request, was presented to this Court. The contents of the sealed envelope contained 15 arrests and 5 convictions, one of which was that of defendant. On September 22, 1975, she was sentenced 10 to 50 years, and the sentence was suspended. On April 1, 1976, some 5 1/2 months after the prior conviction, the present indictment was filed.

The issues on appeal raised by defendant are that: (1) the initial search warrant was legally insufficient on its face alone; (2) the court erred in not permitting defendant to challenge the truth of the facts relied on in the affidavits as to probable cause; and (3) the search of defendant's residence was illegal. A. The search warrants were legally sufficient on their face.

The first issue is whether the affidavits presented to the district judge conveyed sufficient information from which the hearing judge could determine that the informant was reliable in order to establish probable cause.

The standard that governs is stated in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964).

(T)he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed . . . was "credible" or his information "reliable."

This rule is stated in different terminology in Rule 17(a) and (f) of the Rules of Criminal Procedure that govern search warrants (Section 41-23-17(a), (f), N.M.S.A.1953 (2d Repl. Vol. 6, 1975 Supp.).) These subsections provide that "A search warrant shall issue only on a sworn written statement of the facts showing probable cause for issuing the warrant," and " '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." (Emphasis added.)

The issue of probable cause for finding an informant reliable is one of first impression in New Mexico. Though Hudson v. State, 89 N.M. 759, 557 P.2d 1108 (1976) addressed the first prong of the Aguilar test in determining that sufficient underlying circumstances had been shown to support the reliability of the facts, the State, in Hudson, did not preserve the question of the second Aguilar requirement for review.

Defendant argues that the district judge "signed the search warrant without making any independent determination whether the informant was reliable." This statement was emphasized based upon the Aguilar test. Defendant misread the Aguilar test as well as Rule 17. There is no requirement that a magistrate make an "independent investigation" to determine whether an informant is reliable. Simply stated, the magistrate, from the verified facts presented to him, must believe that the source is credible and that a factual basis exists for the information furnished.

The belief of the district judge that probable cause existed for the issuance of the search warrant was established by the affidavit of the police officer.

When defendant claims that the Aguilar standard of probable cause has not been met, the challenge is to the facial sufficiency of the statements of the affidavit not to the truthfulness of the facts. See Wangrow v. United States, 399 F.2d 106 (8th Cir. 1968); Aguilar, supra. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Dumbra v. United States, 268 U.S. 435, 45 S.Ct. 546, 69 L.Ed. 1032 (1925).

The search warrants on their face were legally sufficient.

B. The court did not err in disallowing a challenge to the truth of the facts.

The defendant challenged the veracity of the police officer's affidavit on two levels:

(1) The truth of the officer's statements; and

(2) The reliability of the informant with reference to the twenty arrests and five convictions asserted.

In opposition the State argued in its brief "That the overwhelming majority of jurisdictions support the view that the matters in the affidavit on which the search warrant is based may not be questioned by the person against whom the warrant is directed." Annot., 5 A.L.R.2d 394 (1949) and later case service. New Mexico has not yet determined when an attack may be made on matters stated in an affidavit to support a search warrant. Though the question was not decided, it has been suggested that an inquiry behind the face of an affidavit would be permissible if defendant claims that the officer who signed the statement had committed perjury. State v. Baca, 84 N.M. 513, 505 P.2d 856 (Ct.App.1973).

The above A.L.R. Annotation relied on by the State is applicable only in the absence of statute or rule by the court. Rule 18(a) and (d) of the Rules of Criminal Procedure, § 41-23-18(a), (d), N.M.S.A.1953 (2d Repl. Vol. 6, 1975 Supp.) allow a hearing on the matter of a search warrant. It reads:

(a) PROPERTY. A person aggrieved by a search and seizure may move for the return of the property and to suppress its use as evidence.

(d) HEARING. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If a motion pursuant to paragraph (a) is granted, the property shall be returned, unless otherwise subject to lawful detention. (Emphasis added.)

The application of Rule 18(d) has not yet been determined in New Mexico, though it is akin to the former Rule 41(e) of the Federal Rules of Criminal Procedure, which has been extensively construed. The former Rule 41(e) provided that:

The judge shall receive evidence on any issue of fact necessary to the decision of the motion.

"Under decisions from the courts of appeal of several circuits, the defendant is entitled to a hearing to attack the veracity of governmental allegations in facially valid affidavits underlying search and arrest warrants." 8A Moore's Federal Practice, Rules of Criminal Procedure 41-150 (2d Ed.1977). United States v. Scott, 555 F.2d 522 (5th Cir. 1977); United States v. Luna, 525 F.2d 4 (6th Cir. 1975); United States v. Armocida, 515 F.2d 29 (3rd Cir. 1975); United States v. Harris, 501 F.2d 1 (9th Cir. 1974); United States v. Marihart, 492 F.2d 897 (8th Cir. 1974); United States v. Carmichael, 489 F.2d 983 (7th Cir. 1973).

State courts have also followed this rule. State...