State v. Sabeerin

• Decision Date: 11 August 2014
• Docket Number: 31,895.,31,412,No. 34,886.,34,886.
• Citation: 336 P.3d 990
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Boback SABEERIN, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

336 P.3d 990

STATE of New Mexico, Plaintiff–Appellee

v.Boback SABEERIN, Defendant–Appellant.

31,412

31,895.

No. 34,886.

Court of Appeals of New Mexico.

Aug. 11, 2014.

Certiorari Granted, Oct. 24, 2014,

Gary K. King, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Appellee.

Jorge A. Alvarado, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

ZAMORA, Judge.

{1} The issues in this appeal stem from two trials in which Defendant Boback Sabeerin was convicted of crimes related to his involvement in a vehicle identification number (VIN)-switching operation. In the first trial, Court of Appeals No. 31,412, Defendant was tried together with his co-conspirator, Anjum Tahir (Tahir). In the second trial, Court of Appeals No. 31,895, Defendant was tried alone. The two trials generated two appeals that we consolidate into this Opinion.

{2} Defendant makes a number of arguments in support of reversal. We hold that Defendant's motions to suppress in both No. 31,895 and in No. 31,412 should have been granted. The affidavit in support of a search warrant for Defendant's place of business at 112 General Arnold in Albuquerque, New Mexico, failed to establish probable cause as required by the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. As a result, we reverse.

BACKGROUND

{3} The investigation that led to the charges and subsequent convictions at issue in these appeals began when Tahir was arrested for attempting to steal an automobile. When Tahir was arrested, he was driving an automobile registered in his name, but bearing the VIN of a different automobile—one that had been purchased by Tahir at an insurance auction as a “complete burn and totaled” vehicle. Detective Timothy Fassler of the Albuquerque Police Department's auto theft unit learned that the true VIN of the vehicle that Tahir was driving had been reported stolen two months before Tahir's arrest. Detective Fassler's further investigation revealed that Tahir had purchased a large number of totaled vehicles at auction.

{4} Having received a tip that Tahir “did business” at a combined structure located at 108 and 112 Rhode Island (the Rhode Island property) in Albuquerque, Detective Fassler started surveillance at that property. From his surveillance, Detective Fassler concluded that Tahir had two vehicles—one that Detective Fassler concluded must have been stolen and its VIN altered and another of the same make, purchased at auction, that provided the VIN for its stolen counterpart. A search warrant was issued for the Rhode Island property on August 19, 2009, at 2:13 p.m., and a search confirmed the factual basis of Detective Fassler's search warrant affidavit and revealed other stolen and VIN-altered vehicles. During his investigation into Tahir's activities, Detective Fassler “learned” that Tahir also “did business” at 112 General Arnold (the General Arnold property) in Albuquerque, so he sent a unit to watch that property. Tahir was seen there and taken into custody. Because Detective Fassler observed vehicles at the General Arnold property which he described as “suspicious,” he sought a search warrant for that property as well.

{5} On August 19, 2009, at 4:40 p.m., a search warrant was issued for the General Arnold property, and detectives proceeded to search the property. Defendant, the lessee of the property, arrived and agreed to speak with Detective Fassler. Detective Fassler read Defendant his Miranda rights, interviewed Defendant about the stolen and VIN-switched vehicles on his property, and Defendant gave a statement implicating Tahir and himself in a car theft and VIN-switching operation. Further, a search of the General Arnold property revealed a number of stolen vehicles, as well as evidence of a car theft and VIN-switching operation.

{6} On October 1, 2009, Defendant was indicted in No. 31,412. Similar charges were filed against Tahir, and the cases were joined. A jury trial was held and Defendant was found guilty. Based on the same investigation that led to the charges in No. 31,412, Defendant was indicted in No. 31,895. A jury trial was also held in that case and Defendant was found guilty. Defendant appeals from his convictions in both cases. Because we hold that Defendant's motions to suppress should have been granted, and reverse on that basis, we do not reach his remaining arguments.

The Search Warrant Affidavit Did Not Establish Probable Cause

{7} Defendant argues that the district court erred in denying his motions to suppress the evidence obtained as a result of the search of the General Arnold property. Defendant contends that the affidavit for the search warrant did not provide sufficient probable cause or specificity to support issuance of the search warrant, thereby rendering the search warrant invalid. Defendant attacks the affidavit for the search warrant on three bases. He argues that improper hearsay from an unknown source led the affiant, Detective Fassler, to believe that Tahir “also did business at 112 General Arnold.” He also argues that Detective Fassler's “assertion that there were ‘several suspicious vehicles' at” the General Arnold property was insufficient to “establish probable cause to believe that evidence of criminal activity would be found there.” He argues further that the search warrant affidavit was too broad in its description of the parameters of the search. We agree with all three arguments.

Probable Cause

{8} “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.” State v. Williamson, 2009–NMSC–039, ¶ 14, 146 N.M. 488, 212 P.3d 376 (alterations, internal quotation marks, and citation omitted). In McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 93 L.Ed. 153 (1948), Justice William O. Douglas explained the importance of the warrant requirement:

We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a[n issuing judge] between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law.

“Probable cause to search a specific location exists when there are reasonable grounds to believe that a crime has been committed in that place, or that evidence of a crime will be found there.” State v. Evans, 2009–NMSC–027, ¶ 10, 146 N.M. 319, 210 P.3d 216.

{9} A search warrant may only issue “on a sworn written statement of the facts showing probable cause for issuing the warrant.” Rule 5–211(A)(4) NMRA. An affidavit in support of a search warrant “must contain sufficient facts to enable the issuing [judge] independently to pass judgment on the existence of probable cause.” Williamson, 2009–NMSC–039, ¶ 30, 146 N.M. 488, 212 P.3d 376 (internal quotation marks and citation omitted); see also State v. Knight, 2000–NMCA–016, ¶ 15, 128 N.M. 591, 995 P.2d 1033 (“Affidavits supporting search warrants must be sufficiently detailed so that the analyzing court can make a probable cause determination.”), holding limited by Williamson, 2009–NMSC–039, ¶ 29, 146 N.M. 488, 212 P.3d 376 ; see also State v. Gonzales, 2003–NMCA–008, ¶ 12, 133 N.M. 158, 61 P.3d 867 (stating that probable cause to issue a warrant requires a factual showing “that there is a reasonable probability that evidence of a crime will be found in the place to be searched”), holding limited by Williamson, 2009–NMSC–039, ¶ 29, 146 N.M. 488, 212 P.3d 376.

{10} Detailed search warrant affidavits “must show: (1) that the items sought to be seized are evidence of a crime; and (2) that the criminal evidence sought is located at the place to be searched.” Evans, 2009–NMSC–027, ¶ 11, 146 N.M. 319, 210 P.3d 216 (internal quotation marks and citation omitted). Additionally, search and seizure is only lawful where the search warrant affidavit sets forth a factual basis establishing “a sufficient nexus between (1) the criminal activity, and (2) the things to be seized, and (3) the place to be searched.” State v. Gurule, 2013–NMSC–025, ¶ 15, 303 P.3d 838 (internal quotation marks and citation omitted).

{11} There is no bright-line test for determining probable cause. Evans, 2009–NMSC–027, ¶ 11, 146 N.M. 319, 210 P.3d 216. Probable cause does not have to be based on absolute factual certainty, but it must be based on “more than a suspicion or possibility.” Id. (internal quotation marks and citation omitted). “[A] mere suspicion that the objects in question are connected with criminal activity will not suffice.”Gurule, 2013–NMSC–025, ¶ 14, 303 P.3d 838 (citing 2 Wayne LaFave, et. al., Search and Seizure: A Treatise on the Fourth Amendment § 3.7(d), at 414 (5th ed. 2012) ); see also Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 78 L.Ed. 159 (1933) (finding that a search warrant was improperly issued where the sworn affidavit was insufficient where it contained a mere affirmance of suspicion or belief by the affiant without setting forth the supporting facts or circumstances).

{12} “ ‘[P]robable cause’ shall be based upon substantial evidence.” Rule 5–211(E); see also State v. Haidle, 2012–NMSC–033, ¶ 11, 285 P.3d 668 (same). “[T]he substantial basis standard of review is more deferential than the de novo review applied to questions of law, but less deferential than the substantial evidence standard applied to questions of fact.” Williamson, 2009–NMSC–039, ¶ 30, 146 N.M. 488, 212 P.3d 376. “This standard, however, does not preclude the reviewing court from conducting a meaningful analysis of whether the search warrant was supported by probable cause, but rather...