State v. Vest

Decision Date03 May 2011
Docket NumberNo. 28,888.,28,888.
PartiesSTATE of New Mexico, Petitioner–Appellee,v.Shane R. VEST, Defendant–Appellant.
CourtCourt of Appeals of New Mexico


Gary K. King, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellee.Hugh W. Dangler, Chief Public Defender, Carlos Ruiz de la Torre, Assistant Appellate Defender, Santa Fe, NM, for Appellant.



{1} Defendant Shane Vest appeals his conviction, pursuant to a conditional plea agreement, for distribution of marijuana and possession of drug paraphernalia. Defendant appeals specifically from the district court's denial of his motion to suppress. He argues that no probable cause existed to issue a warrant to search his home because the State failed to establish the veracity of its confidential informant. We hold that the informant's participation in two controlled purchases of controlled substances did not sufficiently establish the informant's veracity and that the observations of the affiant law enforcement officer of activity consistent with drug trafficking did not sufficiently corroborate the informant's observations to justify the issuance of the warrant. We therefore reverse.


{2} The parties agree to the relevant facts in this case. On January 7, 2008, officers executed a search warrant at Defendant's residence, a green and white camping trailer. The search warrant was signed by a magistrate judge and contained a supporting affidavit with the following information:

Affiant [a Village of Logan Police Officer] knows [Defendant's] previous address was located at 102 Morningside in Logan, New Mexico where he lived in the same green and white camper trailer. Affiant has observed this residence on four occasions for approximately an hour. Affiant witnessed as many as seven vehicles and as few as two vehicles come to the residence and only stay for approximately five minutes. [Defendant] moved his trailer to the Arrowhead RV Park on [11–1–07] and Affiant has observed the same type of traffic.

Within the past 48 hours a Region V Drug Task Force confidential informant was at the residence of [Defendant], 503 Highway 54, Arrowhead RV Park, Slip 33. While there the informant observed [Defendant] handling a large quantity of marijuana. The marijuana was packaged in clear sandwich type bags and stored in a clear zip-lock type bag. The informant described the quantity to be between 1/4 pound and 1/2 pound.

Affiant believes this informant to be credible because the informant has performed at least two supervised controlled purchases of quantities of controlled substances. The informant is familiar with [m]arijuana, its appearance and usage, through life experience and previous usage.

{3} Upon executing the search warrant, officers found currency, guns, ammunition, packaged quantities of marijuana, scales, packaging materials, and drug paraphernalia. Defendant was charged with distribution of marijuana and possession of drug paraphernalia.

{4} Defendant filed a motion to suppress in the district court, arguing that the informant's participation in two controlled buys did not establish his veracity. Defendant asserted that the affidavit lacked the specificity to provide sufficient information for a magistrate to make an independent determination as to the existence of probable cause to support the issuance of a warrant.

{5} The district court denied the motion to suppress. It specifically found that the magistrate could have reasonably concluded that the information was reliable based on: (1) the officer's personal observations of suspicious behavior at Defendant's home; (2) the informant's capacity as an informant for the Region V Drug Task Force; (3) the informant's past illicit activity with controlled substances; (4) the informant's personal relationship with Defendant as demonstrated, and; (5) the informant's participation in controlled buys that are described as “at least two.” Defendant then entered a conditional plea, reserving the right to appeal.


{6} “The Fourth Amendment to the United States Constitution and [A]rticle II, [S]ection 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. Nyce, 2006–NMSC–026, ¶ 9, 139 N.M. 647, 137 P.3d 587. Probable cause to issue the 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.” State v. Gonzales, 2003–NMCA–008, ¶ 12, 133 N.M. 158, 61 P.3d 867. We note this case involves the search of a dwelling place, an area that is “ordinarily afforded the most stringent [F]ourth [A]mendment protection.” State v. Clark, 105 N.M. 10, 12, 727 P.2d 949, 951 (Ct.App.1986).

{7} A search warrant may be issued when “sufficient facts are presented in a sworn affidavit to enable the magistrate to make an informed, deliberate, and independent determination that probable cause exists.” Gonzales, 2003–NMCA–008, ¶ 11, 133 N.M. 158, 61 P.3d 867; see also Rule 5–211 NMRA (describing issuance, contents, execution, return, and probable cause requirements for search warrants). “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 (internal quotation marks and citation omitted). “Thus, the magistrate must have sufficient facts upon which to conclude that there is a reasonable probability that evidence of a crime will be found in the place to be searched.” Id. In making this determination, we consider solely the information within the four corners of the affidavit submitted in support of a search warrant. State v. Williamson, 2009–NMSC–039, ¶ 31, 146 N.M. 488, 212 P.3d 376; see State v. Barker, 114 N.M. 589, 590, 844 P.2d 839, 840 (Ct.App.1992).

{8} With respect to probable cause determinations, our Supreme Court has recently clarified the applicable standard of review.

Our inquiry focuses on the issuing judge's conclusion as to probable cause. In this case, that means we look at the magistrate's conclusions, not the district court's. If we conclude that the magistrate's conclusions as to probable cause were correct, we uphold those conclusions regardless of the decision reached by the district court.

State v. Evans, 2009–NMSC–027, ¶ 12, 146 N.M. 319, 210 P.3d 216.

{9} [A]n issuing court's determination of probable cause must be upheld if the affidavit provides a substantial basis to support a finding of probable cause.” Williamson, 2009–NMSC–039, ¶ 29, 146 N.M. 488, 212 P.3d 376 (partially overruling all previous case law to the extent the case applies a de novo rather than substantial basis standard of review).

A reviewing court should not substitute its judgment for that of the issuing court. Rather, ... the reviewing court must determine whether the affidavit as a whole, and the reasonable inferences that may be drawn therefrom, provide a substantial basis for determining that there is probable cause to believe that a search will uncover evidence of wrongdoing.

Id. The Court has explained that “the 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.” Id. ¶ 30. Accordingly, “if the factual basis for the warrant is sufficiently detailed in the search warrant affidavit and the issuing court has found probable cause, the reviewing courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.” Id. (alteration, internal quotation marks, and citation omitted).

{10} In light of the foregoing considerations, we turn to the specifics of this case.


{11} With regard to hearsay statements made by informants, in State v. Cordova, 109 N.M. 211, 217, 784 P.2d 30, 36 (1989), our Supreme Court adopted, as a matter of state constitutional law, the confidential informant 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, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). This test is primarily aimed at confidential informants. See State v. Dietrich, 2009–NMCA–031, ¶¶ 12–13, 145 N.M. 733, 204 P.3d 748 (noting that the identification of an informant by name is a significant factor in determining the reliability of the information because a “named informant has greater incentive to provide truthful information ... than an unnamed or anonymous individual” and explaining that the strictures of AguilarSpinelli are primarily aimed at unnamed police informers (internal quotation marks and citation omitted)).

{12} In adopting the AguilarSpinelli test, our Supreme Court specifically rejected the totality of the circumstances test set forth in Gates. See Cordova, 109 N.M. at 217, 784 P.2d at 36. Our appellate courts have explained:

The Aguilar/Spinelli test is designed to ensure that the court, rather than the police, make the determination that probable cause, based on reliable information, is present. Thus, the first prong of the test requires that the affidavit include the factual basis for any conclusions drawn by the informant to enable the court to perform an independent analysis of the facts and conclusions. The second prong requires that facts be presented to the court to show either that the informant is inherently credible or that the information from the informant is reliable on this particular occasion. These requirements...

To continue reading

Request your trial
19 cases
  • State v. Gurule
    • United States
    • New Mexico Supreme Court
    • June 13, 2013
  • State v. Henz
    • United States
    • Court of Appeals of New Mexico
    • March 23, 2022
  • State v. Henz
    • United States
    • Court of Appeals of New Mexico
    • March 23, 2022
    ... ... See ... Williamson , 2009-NMSC-039, ¶ 31. "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." ... State v. Vest , 2011-NMCA-037, ¶ 7, 149 N.M ... 548, 252 P.3d 772 (internal quotation marks and citation ... omitted). In reviewing an application for a search ... warrant, an issuing court may consider "[a]ll direct and ... circumstantial evidence alleged, as well as all reasonable ... ...
  • State v. Rankin
    • United States
    • Court of Appeals of New Mexico
    • October 30, 2013
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT