State v. Steinzig

Decision Date04 June 1999
Docket NumberNo. 19,210.,19,210.
Citation127 N.M. 752,987 P.2d 409
PartiesSTATE of New Mexico, Plaintiff-Appellant, v. Robert Alan STEINZIG, Defendant-Appellee.
CourtCourt of Appeals of New Mexico

Patricia A. Madrid, Attorney General, M. Victoria Wilson, Ass't Attorney General, Santa Fe, for Appellant.

Phyllis H. Subin, Chief Public Defender, Christopher Bulman, Appellate Defender, Santa Fe, for Appellee.

Certiorari Denied, No. 25,817, July 28, 1999.

OPINION

DONNELLY, Judge.

{1} The State appeals from an order suppressing evidence seized by law enforcement officers pursuant to a search warrant issued by a district court judge. Two issues are raised on appeal: (1) whether the affidavit for search warrant provided sufficient information for the issuing judge to satisfy the veracity requirement of the informants named in the affidavit; and (2) whether the trial court erred in ruling that the drugs and drug paraphernalia seized during the search of Defendant's residence were not subject to the plain view exception. Reversed and remanded.

FACTS

{2} Shortly before 8:00 a.m. on the morning of April 3, 1997, Officer Tony Baca, an Albuquerque police officer, observed two individuals, later identified as Jennifer Turner and Albert Eugene Hudgins, engaged in what appeared to be a drug transaction with a third unidentified individual. Officer Baca stopped Turner and Hudgins' vehicle, approached the driver, and upon looking into the vehicle observed a $100 bill in Hudgins' lap. Officer Baca removed the bill and noted that it appeared to be counterfeit. Another police officer arrived at the scene and observed a crack pipe and two counterfeit $10 bills in the vehicle next to Turner's seat. Officer Baca then contacted the United States Secret Service to report that the two individuals arrested were in possession of counterfeit currency.

{3} Hudgins and Turner were transported to the Albuquerque Secret Service Office where they were advised of their rights and separately interviewed. Based on information concerning Defendant's alleged involvement in counterfeiting activities, Special Agent James Downey prepared an affidavit for a search warrant to search Defendant's apartment in northeast Albuquerque, New Mexico. The affidavit recited in part:

Hudgins was at the residence of his friend, James Hancock who lives with a roommate named "Bob." According to Hudgins, Hancock is very knowledgeable about computers and was showing him how he could make fake identification. Hancock also showed Hudgins how he could make counterfeit money by placing a bill on a scanner and then altering the bills and eventually printing the counterfeit bills. On one occasion, Hancock printed out two $10 bills and on another occasion a $100 and gave it to Hudgins. Hudgins stated that he has seen Hancock scanning personal checks into the computer and he knows that he's making counterfeit New Mexico drivers licenses, passports and selling drugs. Hudgins was then transported by [Special Agents] Harris and Downey after he agreed to show us where Bob and James Hancock were residing. He indicated that they lived in a large two story duplex on Lowell Street. Hudgins indicated that the computer room is located at the top of the flight of stairs and then to the left. Hudgins also advised [Special Agents] Harris and Downey that there is a Mossberg 12 gauge shotgun inside the front door and that "Bob" carriers a "hammerless" .45 caliber handgun. According to Hudgin [sic], "Bob" carries the handgun whenever he leaves the apartment, but he does not know where he keeps the gun while inside the apartment....
.... Turner stated that she too was at the residence of "Bob" and James Hancock with her boyfriend, Lyle Redbird, earlier this same date. Turner stated that she observed Bob hand Hudgins several counterfeit bills. Turner stated that she was in the computer room and saw that there were three copiers, a computer, printer and scanner that James was using in the last 24 hours. She indicated that Hancock was the computer nerd and that Bob was selling drugs.
Turner advised [Special Agent] Downey and [Special Agent] Ferrell and [Special Agent] Schwalm that she knew that Bob and James had some guns and knives in the house. Turner was shown several photographs of individuals identified by Albuquerque Police Department and U.S. Secret Service as methamphetamine users. These individuals have been subjects of other investigations by the Albuquerque Police Department and the U.S. Secret Service for crimes such as manufacturing and passing counterfeit bank checks and creating false New Mexico Drivers licenses.
.... All of the individuals were identified by Turner as being at the 5801 Lowell, NE [Albuquerque] address on 4/3/97.

The affidavit recited that the phone number given by the two informants was in fact Defendant's correct phone number. In addition, Hudgins and Turner were both transported, separately, approximately twenty minutes apart to the place they each independently identified as Defendant's residence.

{4} The affidavit also stated that the black Chevy S-10 pickup truck and New Mexico license plate identified by Hudgins and Turner, were registered to Defendant. The affidavit further explained that, "Hudgin [sic] had previously indicated to [Special Agent] Ferrell that [Defendant] used to own a windshield repair business but did not know what James Hancock did for a living other than the criminal activity." Special Agents Harris and Downey, who transported Hudgins to this address, also observed the pickup truck in the condominium complex.

{5} After reading the affidavit, District Judge James F. Blackmer approved the issuance of a search warrant on April 3, 1997, for the search of Defendant's residence for equipment and materials used to produce counterfeit currency, checks, and other legal documents. The Albuquerque police executed the search warrant that same day.

{6} Defendant filed a motion to suppress evidence obtained during the search of his residence, asserting that: (1) the search warrant was overly broad; (2) the evidence seized was not found inadvertently, thus precluding application of the plain view exception; (3) the affidavit in support of the search warrant failed to provide a basis for the reviewing judge to determine the veracity of the informants; (4) the information in the affidavit was stale; (5) the search for counterfeit equipment was a pretext for a search for drugs, and thus, was not conducted in good faith; and (6) the State violated Rule 5-501 NMRA 1997, by failing to provide written recorded statements of the informants taken by police officers on April 3, 1997.

{7} The State filed a response to Defendant's motion, and Defendant subsequently filed an amendment to the motion to suppress adding that: (1) the police officers failed to knock and announce their presence before using force to enter Defendant's residence; (2) the officers used unreasonable force in handcuffing Defendant during the search; and (3) Special Agent Downey omitted material facts from the affidavit for search warrant.

{8} At the hearing on Defendant's motion, Defendant reasserted each of the claims stated in his original motion and amendment to the motion, except his claim regarding the application of the plain view exception. He acknowledged that inadvertence is no longer a requirement for reliance on the plain view exception.

{9} Defendant testified at the motion to suppress. He testified that he was in his residence preparing to take a shower when he heard a loud noise. He testified that he left the bathroom and entered his bedroom and that when the officers entered the bedroom, he was bumped from behind and he fell onto the closet floor. He also testified that he was handcuffed and then permitted to sit on the bed. Defendant told the officers that he had a shotgun in the bedroom. Defendant testified that he was given his Miranda warnings, and he was helped into his trousers and then was taken downstairs where he was directed to sit on a couch with two other individuals who were in the house at the time the officers entered.

{10} The State called three witnesses. Special Agent Downey testified regarding the interrogation of the informants and the information they provided, and two Albuquerque police officers testified concerning their entry into Defendant's residence and execution of the search warrant on April 3, 1997. Officer Steve Rodriquez testified that he had been informed that there was reason to be concerned for officer safety in the execution of the search warrant because information had been received that the occupants had access to weapons, including a shotgun and a hand gun. Rodriquez stated that when he approached the apartment he saw someone inside the house through a sliding glass door. He knocked on the door and announced that the police were present to execute a search warrant. Rodriquez also testified that when the person inside did not respond, he ordered a forced entry into Defendant's residence to ensure officer safety. Rodriquez further testified that it is standard procedure to handcuff suspects during a search in order to ensure officer safety.

{11} Officer Anthony Maez also testified at the suppression hearing regarding the search of Defendant's residence. Maez stated that pursuant to the search warrant he searched Defendant's residence for large items, such as computers, laminating machines and printers, and for small items, such as computer disks, driver's licenses and birth certificates. While looking for such items in the master bedroom, he testified that he found crack cocaine in plain view on top of the dresser and a night stand and that he observed small plastic bags similar to those used for distribution of narcotics. Continuing his search, in the closet he found a small round box, large enough to hold driver's licenses, but which, when opened, he found to what he believed to be cocaine. In addition, he...

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