State v. Therrien

• Decision Date: 22 May 1990
• Docket Number: No. 11609,11609
• Citation: 1990 NMCA 60,794 P.2d 735,110 N.M. 261
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Steve THERRIEN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 735

794 P.2d 735

110 N.M. 261

STATE of New Mexico, Plaintiff-Appellee, v. Steve THERRIEN, Defendant-Appellant.

No. 11609.

Court of Appeals of New Mexico.

May 22, 1990.

[110 NM 261] Jacquelyn Robins, Chief Public Defender, Beverly Ohline, Amme H. Hogan, Assistant Appellate Defenders, Santa Fe, for defendant-appellant.

Hal Stratton, Atty. Gen., Patricia Gandert, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HARTZ, Judge.

Defendant appeals his conviction of possession of more than eight ounces of marijuana. NMSA 1978, Sec. 30-31-23(B)(3) (Repl.Pamp.1989). Although defendant raises a number of issues on appeal, the dispositive issue is the sufficiency of the affidavit for the search warrant used in the investigation of the case. We hold the affidavit insufficient and reverse on that basis. Because double-jeopardy doctrine would prohibit a new trial if the evidence admitted at trial had been insufficient to sustain a conviction, we also address the sufficiency of the evidence.

We set forth the affidavit in its entirety:

1. The Affaint [sic], Luis Lara, is a fulltime salaried law enforcement officer with 14 1/2 yre [sic] experience and certified by the state of New Mexico. Currently serving at [sic] a Lutinent [sic] with the Chaves County Sheriff's Office.

2. On 8-1-88 Affiant received information from the Chaves County Crimestoppers that a caller advised that, at the location discribed [sic] on the face of the search warrant, a subject known to him as Steve lives there and is growing a marijuana patch behind a barn west of the house.

3. The caller advise [sic] that he is familiar with marijuana and knows what marijuana and marijuana plants look like.

4. Affiant did follow the callers [sic] directions and located an older model yellow El Camino which caller discribed [sic] and also a red/white Ford p/u which caller discribed [sic] at the residence which also had a small shed or barn southwest of residence[.]

5. Sgt. Troy Grant advised Affiant that a Confiditual [sic] Informate [sic] which Sgt. Grant personally knows to be reliable stated that subjects at that discribed [sic] residence would be stripping the plants and moving them out before morning.

6. Affaint [sic] who has approximately 12 yrs. experience in narcatic [sic] investigation does know that people who grow marijuana and process marijuna [sic] after stripping the plants will process, wiegh [sic], and package it inside the residence or in an enclosed area.

Based on the affidavit, a magistrate approved a search warrant for a home, including all outbuildings, appurtenances, and curtilage.

The only allegations of criminality in the affidavit are hearsay from persons who were not law-enforcement officers--a crime stoppers caller and a confidential informant. In recent decades courts have struggled to establish standards for evaluating hearsay used in search warrant affidavits. The United States Supreme Court has settled on a "totality of the circumstances" standard for evaluating affidavits. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In State v. Cordova, 109 N.M. 211, 784 P.2d 30 (1989), however, the New Mexico Supreme Court has adopted, as a matter of state constitutional law, a test first formulated by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), overruled in part by Illinois v. Gates.

There are two prongs to the Aguilar-Spinelli test for evaluating hearsay from informants: The first prong requires the affidavit to establish the veracity of the informant. The affidavit must establish that the informant is a credible person or that there is special reason to believe that the informant was truthful in providing the specific information to law enforcement (such as the statement's being satisfactorily corroborated or being against the informant's penal interest). See State v. Cordova, 109 N.M. at 213 n. 2, 784 P.2d at 32 n. 2. The second prong requires that the affidavit present facts establishing the adequacy of the informant's basis of knowledge. The information supplied by the informant should be based either on the personal knowledge of the informant or on reliable hearsay received by the informant. Even prior to Cordova, the two-prong Aguilar-Spinelli test was imposed in New Mexico by the rule of criminal procedure governing affidavits for search warrants, SCRA 1986, 5-211, which states:

E. Probable cause. As used in this rule, "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.

The only prong of the Aguilar-Spinelli test that we need consider here is the veracity prong. The affidavit failed this prong because it did not establish either (1) that the informants were truthful persons, (2) that the informants had particular motives to be truthful about their specific allegations, or (3) that the allegations of criminality had been sufficiently corroborated.

First, we consider the statement by the confidential informant. Sergeant Grant's assertion that he knew the informant "to be reliable" is insufficient to establish the truthfulness of the informant. The New Mexico Supreme Court has approved an unadorned allegation that "the informant had provided information in the past which the affiant 'did find to be true and correct from personal knowledge and investigation.' " State v. Cordova, 109 N.M. at 217, 784 P.2d at 36. But that is apparently as far as any court has gone in allowing the affiant to vouch for an informant without providing specifics. See 1 W. LaFave, Search and Seizure Sec. 3.3(b), at 635 (2d ed. 1987). We are aware of no judicial ruling that the veracity prong of the Aguilar-Spinelli test is satisfied by an assertion that an informant is simply "known to be reliable." See State v. Koncir, 367 So.2d 365 (La.1979); W. LaFave, supra, Sec. 3.3(b), at 638. In Aguilar itself the affidavit stated only that the informant was a "credible person." The United States Supreme Court concluded that the allegation was insufficient--it was a mere conclusion that provided none of the underlying circumstances from which a magistrate could make an independent determination. As Professor LaFave has written:

Aguilar and Spinelli thus make it clear that while assessments of informant credibility are ordinarily based upon past performance, a mere allegation that the informer is "credible" or "reliable" does not permit the judicial officer to assume that there was such past performance and that the performance was of a nature to merit such a characterization of the informant.

Id., Sec. 3.3(b), at 627-28.

We also note that there is no particular reason to believe that the specific allegations by the confidential informant were truthful. The allegations were not against the informant's penal interest. Nor did the observations of the officers corroborate the informant's allegations concerning criminal conduct at the location to be searched. The affiant's statement concerning his personal knowledge of the business of stripping marijuana plants, etc., may show that the informant also had some general knowledge of such operations, but it has no bearing on the credibility of the informant's specific allegations. Therefore, the only possible corroboration would be the allegations by the crime stoppers caller, which we now address.

By what standard should we evaluate hearsay from a crime stoppers caller? We recognize that there may be sound reasons for crediting statements by persons who are victims of or witnesses to a crime. The majority rule appears to be that "if the citizen or victim informant is an eyewitness this will be enough to support probable cause even without specific corroboration of reliability." Allison v. State, 62 Wis.2d 14, 23, 214 N.W.2d 437, 442 (1974). See United States v. Fooladi, 703 F.2d 180 (5th Cir.1983); People v. Ramey, 16 Cal.3d 263, 545 P.2d 1333, 127 Cal.Rptr. 629, cert. denied, 429 U.S. 929, 97 S.Ct. 335, 50 L.Ed.2d 299 (1976) (In Bank) (private citizens who are witnesses to or victims of a criminal act, absent some circumstance that would cast doubt upon their information, should be considered reliable); State v. Villagran, 294 Or. 404, 657 P.2d 1223 (1983) (In Banc); W. LaFave, supra, Sec. 3.4(a), at 717-19.

Decisions upholding reliance on citizen-informers often, however, rely on the citizen's willingness to provide his or her identity to the police. See, e.g., People v. Ramey; Commonwealth v. Atchue, 393 Mass. 343, 471 N.E.2d 91 (1984); State v. Lindquist, 295 Minn. 398, 205 N.W.2d 333 (1973); State v. Villagran; W. LaFave, supra, Sec. 3.4(a) n. 51, at 722-23 (collecting cases). Cf. United States v. Brooks, 350 F.Supp. 1152 (E.D.Wis.1972) (concern about relying on information from a person who gave a name, because the person, a telephone caller, may have given "an erroneous or untraceable name").

When a citizen-informer remains anonymous, courts view the reliability of the individual in a far different light. In...