State v. Nyce, 28,950.

Citation2006 NMSC 026,137 P.3d 587
Decision Date22 May 2006
Docket NumberNo. 28,950.,28,950.
PartiesSTATE of New Mexico, Plaintiff-Respondent, v. Heather R. NYCE, Defendant-Petitioner.
CourtSupreme Court of New Mexico

Gary C. Mitchell, Ruidoso, NM, for Petitioner.

Patricia A. Madrid, Attorney General, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Respondent.


BOSSON, Chief Justice.

{1} Two police officers observed Defendant Heather Nyce shopping for tincture of iodine and hydrogen peroxide, merchandise which among other things can be used in the manufacture of methamphetamine. Based on the officers' training and experience, they grew suspicious. They submitted an affidavit to a magistrate judge and obtained a search warrant for the residence where Defendant delivered her purchases. After Defendant was arrested and charged with conspiracy for trafficking methamphetamine by manufacturing, she filed a motion to suppress incriminating evidence obtained inside the residence. The district court denied the motion to suppress, and the Court of Appeals affirmed. We granted certiorari to examine inferences that may fairly be drawn from the lawful, yet suspicious, purchase of common merchandise that is capable of use in the manufacture of methamphetamine. We now reverse, holding that the affidavit did not establish probable cause for the search warrant.


{2} The following information is taken from the affidavit for the search warrant. Defendant purchased tincture of iodine and hydrogen peroxide at two stores. Both ingredients are used in the manufacture of methamphetamine. When purchasing the iodine at Wal-Mart with her infant daughter in the shopping cart, Defendant proceeded immediately to the pharmaceutical aisle and bought four 1-ounce bottles, all the iodine that was on the shelf. She placed the iodine in her shopping cart and covered it with a large box that was already in her cart. Defendant first proceeded to an automated, self-pay register with the iodine. When she noticed a line, she went to a register staffed by a cashier. Although hydrogen peroxide was available at Wal-Mart, Defendant then went to an Allsup's and purchased a 1-pint bottle of hydrogen peroxide.

{3} New Mexico State Police Agents Carr and Suggs, the officers who observed Defendant, became suspicious of her purchases for a number of reasons. In the affidavit, Agent Carr noted that in his experience observing purchases of tincture of iodine, most people buy only one bottle. He also stated that it was his experience that persons who shop for methamphetamine ingredients will often buy the items at more than one store to avoid being detected by law enforcement. Agent Carr noted that persons who are buying drug precursors1 know where in the store the items are located, and spend little time in those aisles to avoid detection. Defendant went immediately to the aisle where the iodine was located, got it off the shelf, and walked quickly toward the registers to make the purchase.

{4} Defendant took the iodine and peroxide to the home of her boyfriend, Peter Cook. The agents suspected that Cook was involved in the manufacturing of methamphetamine because allegedly he had been seen approximately one year before stealing and purchasing methamphetamine ingredients. Also, about a year before Defendant's purchase, Agent Suggs saw Defendant at the home of an individual who Agent Carr knew had been arrested for involvement in methamphetamine manufacture and whose girlfriend had been convicted of the same crime.

{5} The agents presented their affidavit to a magistrate judge and requested a warrant to search Cook's home. The magistrate determined there was probable cause and issued the warrant. At the Cook house, the agents found ingredients and paraphernalia that are used to make methamphetamine as well as small amounts of the drug. They arrested both Cook and Defendant.

{6} After her arrest, Defendant moved to suppress items seized during the search. She argued that (1) the affidavit was insufficient to establish probable cause, (2) the affidavit contained false statements, (3) there was no nexus between Defendant and the place to be searched, and (4) the affidavit contained stale information that allegedly had occurred a year before. The district court concluded that the paragraphs which Defendant claimed were stale did "not add any information that establishes probable cause,"2 and then held that the affidavit established probable cause to search even without those paragraphs. Following the denial of her motion to suppress, Defendant pleaded no contest to conspiracy for trafficking methamphetamine by manufacturing, but reserved her right to appeal the suppression issue. See NMSA 1978, § 30-31-20(A)(1) (1990).

{7} The Court of Appeals affirmed in a memorandum opinion. However, in its review of the sufficiency of the affidavit, the Court considered the stale evidence which the trial court found did not add to the probable cause determination. The Court also limited its decision to Defendant's first issue: whether the affidavit was factually sufficient to establish probable cause. The Court ruled that Defendant abandoned the other three issues by failing to respond to the proposed disposition to affirm. See State v. Johnson, 107 N.M. 356, 358, 758 P.2d 306, 308 (Ct.App.1988). The State argues those issues were not preserved at trial. Since our resolution of the first issue mandates reversal, we limit our review as well to the issue of probable cause. However, we review the affidavit as the district court did, without the stale information concerning Cook's prior behavior and Cook and Defendant's former association with alleged methamphetamine manufacturers. See State v. Gonzales, 2003-NMCA-008, ¶ 13, 133 N.M. 158, 61 P.3d 867.

Standard of Review

{8} We apply 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. Gonzales, 2003-NMCA-008, ¶ 13, 133 N.M. 158, 61 P.3d 867; see also State v. Ochoa, 2004-NMSC-023, ¶ 5, 135 N.M. 781, 93 P.3d 1286. This review is limited to the contents of the affidavit. State v. Duquette, 2000-NMCA-006, ¶ 11, 128 N.M. 530, 994 P.2d 776. "`We review the affidavit by giving it a commonsense reading, considering the affidavit as a whole, to determine whether the issuing judge made an . . . independent determination of probable cause,'" based upon sufficient facts. State v. Garcia, 2002-NMCA-050, ¶ 7, 132 N.M. 180, 45 P.3d 900 (quoting State v. Whitley, 1999-NMCA-155, ¶ 3, 128 N.M. 403, 993 P.2d 117); see also Rule 5-211(E) NMRA 2006 (requiring probable cause to be based on substantial evidence); State v. Cordova, 109 N.M. 211, 213, 784 P.2d 30, 32 (1989) (same).

The Probable Cause Requirement

{9} The Fourth Amendment to the United States Constitution and article II, section 10 of the New Mexico Constitution both require probable cause to believe that a crime is occurring or seizable evidence exists at a particular location before a search warrant may issue. See also Rule 5-211(A). Accordingly, law enforcement officials must present an affidavit to a "neutral and detached magistrate" demonstrating probable cause. Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948); accord State v. Baca, 97 N.M. 379, 640 P.2d 485 (1982). A magistrate is required, not because officers cannot make reasonable inferences from evidence, but because the constitutional prohibition against unreasonable searches and seizures prefers an independent review of the evidence, rather than one from police who are "engaged in the often competitive enterprise of ferreting out crime." Johnson, 333 U.S. at 14, 68 S.Ct. 367. It follows then, that the magistrate's role is not simply to rubber stamp an officer's conclusion about probable cause. State v. Hughes, 20 Or.App. 493, 532 P.2d 818, 822 (1975). Rather, "[t]he constitutionally mandated role of magistrates and judges in the warrant process requires them to make an `informed and deliberate' determination whether probable cause exists." Cordova, 109 N.M. at 213, 784 P.2d at 32 (quoting Aguilar v. Texas, 378 U.S. 108, 110, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)) (emphasis added).

{10} Probable cause exists when there are reasonable grounds to believe an offense has been or is being committed in the place to be searched. State v. Snedeker, 99 N.M. 286, 290, 657 P.2d 613, 617 (1982); Gonzales, 2003-NMCA-008, ¶ 11, 133 N.M. 158, 61 P.3d 867. Probable cause is not subject to bright line, hard-and-fast rules, but is a fact-based determination made on a case-by-case basis. See State v. Aull, 78 N.M. 607, 612, 435 P.2d 437, 442 (1967) (stating no two cases are precisely alike); People v. Miller, 75 P.3d 1108, 1113 (Colo.2003) (en banc) (stating that probable cause analysis "does not lend itself to mathematical certainties or bright line rules"). "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.'" Gonzales, 2003-NMCA-008, ¶ 12, 133 N.M. 158, 61 P.3d 867 (quoting State v. Donaldson, 100 N.M. 111, 116, 666 P.2d 1258, 1263 (Ct.App.1983)). When ruling on probable cause, we deal only in the realm of reasonable probabilities, and look to the totality of the circumstances to determine if probable cause is present. State v. Garcia, 79 N.M. 367, 368, 443 P.2d 860, 861 (1968); see United States v. Basham, 268 F.3d 1199, 1203 (10th Cir.2001).

{11} Any search pursuant to a warrant that has an affidavit lacking in probable cause is unreasonable. 2 WAYNE R. LaFAVE, CRIMINAL PROCEDURE § 3.3(a), at 83 (2d. ed.1999). Accordingly, while we give deference to a magistrate's decision, and to an officer's observations, experience, and training, their conclusions must be objectively reasonable under all the circumstances. See State v....

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