State v. Trudelle

• Decision Date: 04 April 2007
• Docket Number: No. 25,476.,25,476.
• Citation: 162 P.3d 173,2007 NMCA 066
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Kathy TRUDELLE and Michael Trudelle, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

162 P.3d 173

2007 NMCA 066

STATE of New Mexico, Plaintiff-Appellant, v. Kathy TRUDELLE and Michael Trudelle, Defendants-Appellees.

No. 25,476.

Court of Appeals of New Mexico.

April 4, 2007.

Certiorari Granted, No. 30,370, May 24, 2007.

Gary K. King, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, NM for Appellant.

Gorence & Oliveros, P.C., Robert J. Gorence, Albuquerque, NM for Appellees.

OPINION

BUSTAMANTE, Judge.

{1} This case requires us to determine whether the district court erred in suppressing evidence obtained pursuant to a warrant based in part on unlawfully acquired information. More specifically, we address whether the issuing judge preserved the warrant's validity by making a handwritten note that he found probable cause for the warrant to issue even without considering the tainted information. We follow our decision in State v. Wagoner, 2001-NMCA-014, 130 N.M. 274, 24 P.3d 306 [hereinafter Wagoner II], and conclude that the warrant was invalid. Accordingly, we affirm.

BACKGROUND

{2} On September 9, 2003, Officer Tank Guenther was dispatched to the residence of Kathy and Michael Trudelle (Defendants) in Albuquerque, New Mexico due to an anonymous tip that a heavy chemical odor was emanating from the residence, possibly due to the existence of a methamphetamine lab there. Officer Guenther met with another officer near the residence. As the officers walked up the driveway toward the house, Officer Guenther began to smell a chemical odor that he recognized from previous experience as an odor associated with methamphetamine production. The smell was strong enough to give Officer Guenther a headache; he became concerned for his safety as well as the safety of anyone who might have been in the house or in the surrounding area. The officers made contact with Mr. Trudelle at the front door and asked him to step out onto the front porch so that they could speak with him. Officer Guenther asked to enter the house and yard to investigate the source of the chemical odor and Mr. Trudelle refused to give his consent. Officer Guenther noticed that Mr. Trudelle's fingers were "yellowed" and "scorched," which was consistent with Officer Guenther's other encounters with persons who had been cooking methamphetamine.

{3} The officers asked Mr. Trudelle if anyone else was in the house. Mr. Trudelle told them that his wife, Kathy, was inside, as were their dog and cats. Officer Guenther asked for Mrs. Trudelle, who came out and spoke with him on the porch while the other officer continued speaking to Mr. Trudelle. Mrs. Trudelle refused her consent for the officers to search the house and yard. Unsure of how to proceed, Officer Guenther called Sergeant Torgrimson and requested that he come out to the residence. While Sergeant Torgrimson was en route, the officers allowed Mrs. Trudelle back into the house unaccompanied to use the restroom. Sergeant Torgrimson arrived on the scene in less than one-half hour.

{4} Officer Guenther explained to Sergeant Torgrimson that, given the strong chemical odor coming from the property, he suspected the presence of a meth lab, although he had no idea whether an active cook was taking place. Sergeant Torgrimson decided that they would secure the house, make sure everyone was outside, and call in narcotics officers. Although they did not have Defendants' consent to enter, Officer Guenther and Sergeant Torgrimson accompanied Mr. Trudelle into the house and searched the entire building for people and animals. While inside the house, Sergeant Torgrimson looked out the kitchen window and saw a detached garage with a door that was halfway open. Mr. Trudelle retrieved his dog and came back out onto the porch with the police officers once they determined no one else was in the house.

{5} At or around this time, the officers discovered that Mrs. Trudelle had an outstanding arrest warrant. The officers placed her under arrest, searched her, and discovered a syringe filled with heroin. Sergeant Torgrimson told Mr. Trudelle that he was free to leave. Mr. Trudelle took his dog and drove off in a van that was parked in the driveway. Sergeant Torgrimson then called for a narcotics detective to come and determine whether a search warrant would be necessary.

{6} Following Mr. Trudelle's departure, Sergeant Torgrimson decided that he and Officer Guenther should check the backyard to make sure that no one was still on the property. As the officers were checking the yard, they noticed that the door to the garage that Sergeant Torgrimson had previously observed half open was now almost completely shut. Sergeant Torgrimson became concerned that Mr. Trudelle had come around the back of the property and entered the garage, or that perhaps someone else had done so. Officer Guenther drew his weapon and went to inspect the doorway to the garage. He opened the door and was immediately hit with a chemical odor that was even stronger than what he had experienced earlier. He noticed a fan blowing out toward the doorway and did not want to enter because the smell was "overpowering." He looked inside the building and did not see anyone, although he did notice a hot plate, beakers and other items resembling a methamphetamine lab.

{7} The officers retreated from the backyard, secured the premises and waited for the narcotics detective to arrive. Detective Eugene Etheredge arrived a short while later. The officers explained what they had observed to Detective Etheredge. Based on their description of the fan, the hot plate, and the chemical odor in the garage, Detective Etheredge decided to see if there was an active cook taking place that might pose a threat of explosion. Detective Etheredge looked into the garage, saw the items that had been described to him, and determined that there was no risk of explosion at that time. He retreated from the garage and prepared a search warrant.

{8} Detective Etheredge stated in his affidavit for the search warrant that the officers who originally arrived at the scene had secured the residence. However, Detective Etheredge did not explain that the officers had entered the home with Mr. Trudelle and that, while inside the house, Sergeant Torgrimson observed the half-open door to the garage. Instead, Detective Etheredge asserted the following:

While securing the back of the residence to insure no subjects were placed in harms [sic] way[,] Officer Guenther observed the door to the garage area in the closed position. Officer Guenther stated he had observed the door in the open position upon his arrival to the residence.

Detective Etheredge then described his and Officer Guenther's observations from looking into the garage, including the specific items that Detective Etheredge determined were part of a methamphetamine lab. District Judge James Blackmer signed the warrant, although he highlighted the portion of the warrant describing Officer Guenther's and Detective Etheredge's observations of the inside of the garage and included the following handwritten notation above the signature line:

Although this [highlighted] information is very likely lawfully acquired, even without considering this information, the court finds probable cause to issue (and will issue) a search warrant for 1818 Ridgecrest, S.E.

{9} On February 5, 2004, a grand jury indicted Defendants on charges of trafficking methamphetamine, contrary to NMSA 1978, § 30-31-20(A)(1) (1990) (amended 2006); conspiracy, contrary to NMSA 1978, § 30-28-2 (1979) and Section 30-31-20(A)(1); and possession of drug paraphernalia, contrary to NMSA 1978, § 30-31-25.1(A) (2001). Defendants jointly filed a motion to suppress the evidence obtained as a result of the search warrant. Defendants asserted that the officers' warrantless entries on their property took place without Defendants' consent, without justification due to exigent circumstances, and were thus in violation of Defendants' state and federal constitutional rights. Defendants further claimed that, when the officers arrived, there was no evidence that a meth lab was actively producing methamphetamine so as to threaten the immediate area. Thus, Defendants argued, nothing prevented the officers from obtaining a warrant before searching their property.

{10} District Judge Richard Knowles held a suppression hearing that spanned three days: September 28, 2004, October 26, 2004, and November 23, 2004. Judge Knowles determined at the September 28, 2004, hearing that, if the warrant contained unlawfully acquired information, the warrant would be invalid despite Judge Blackmer's notation. Judge Knowles later ruled that Officer Guenther and Sergeant Torgrimson were lawfully inside Defendants' home when Sergeant Torgrimson observed the half-open garage door from the kitchen window. Specifically Judge Knowles found that, although the aroma of a meth lab alone did not amount to an exigent circumstance, the officers had probable cause to suspect the existence of a meth lab and were therefore entitled to enter the residence to secure the premises. However, Judge Knowles determined that the officers could not bolster the affidavit for the search warrant by including additional evidence observed while securing the premises. Judge Knowles therefore granted Defendants' motion to suppress the evidence obtained pursuant to the search warrant.

{11} The State brings the present appeal and asks us to reverse on either of two grounds: (1) the district court erred in ruling that the officers could not include in the search warrant affidavit any evidence obtained from plain view observations made during the protective sweep of Defendants' home; or (2) even if the search warrant affidavit included unlawfully acquired information, Judge Blackmer cured any defect by noting that he found probable cause to issue the warrant apart from the tainted information. Conversely, Defendants urge us to affirm, arguing that: (1) the district court correctly found that no...