State v. Williamson

• Decision Date: 25 June 2009
• Docket Number: No. 31,147.,31,147.
• Citation: 212 P.3d 376,2009 NMSC 039
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Julien Holt WILLIAMSON, Defendant-Respondent.
• Court: New Mexico Supreme Court

212 P.3d 376

2009 NMSC 039

STATE of New Mexico, Plaintiff-Petitioner, v. Julien Holt WILLIAMSON, Defendant-Respondent.

No. 31,147.

Supreme Court of New Mexico.

June 25, 2009.

Gary K. King, Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Petitioner.

Jones Witt Law Firm, Scott Douglas Jones Witt, Roswell, NM, for Respondent.

OPINION

MAES, Justice.

{1} In this appeal, the State claims that the Court of Appeals improperly concluded that the search warrant issued by a district court judge (issuing court) was unsupported by probable cause, and therefore, improperly affirmed the decision of the subsequent district court (suppressing court) to suppress evidence seized pursuant to the search warrant. Specifically, the State argues that the Court of Appeals erroneously: (1) applied a de novo standard of review to the issuing court's determination of probable cause; and (2) concluded that, under the circumstances of the present case, the drug-sniffing dog's failure to alert to the presence of narcotics fatally undermined the issuing court's determination of probable cause. State v. Williamson, 2008-NMCA-096, ¶¶ 2, 8-9, 144 N.M. 522, 188 P.3d 1273. We conclude that an issuing court's determination of probable cause should not be reviewed de novo but, rather, must be upheld if the affidavit provides a substantial basis to support a finding of probable cause. We further conclude that the facts alleged in the search warrant affidavit adequately explained the drug-sniffing dog's failure to alert and provided a substantial basis for the issuing court's determination of probable cause. Accordingly, we reverse the judgment of the Court of Appeals and remand the case to the district court for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

{2} The affidavit submitted in support of the first search warrant alleged the following facts. On October 25, 2005, Julien Holt Williamson (Defendant) brought a package into a UPS Store located on East College Street in Roswell, New Mexico. Defendant informed the store manager, Jennifer Ary, that he wished to send the package to Jesse Gomez in Brooklyn, New York. Defendant appeared to be nervous, and in response to Ary's inquiry as to the contents of the package, Defendant stated that "he did not know" what was inside of the box. When Ary informed Defendant that the package would have to be opened to ascertain its contents, Defendant explained that the box contained a book which he was sending to his son. Although Defendant had mailed packages from this UPS Store before, "this was the first time he appeared nervous and stated he did not know what was in his package."

{3} Ary "did not feel right about the package," and consequently, she opened it after Defendant had left the store. Inside she found a clear plastic bag, which appeared to be vacuum sealed, containing two containers, a Crystal Light cylinder and a Ferrero box, both wrapped in gray duct tape. Ary contacted the Roswell Police Department to report the suspicious package.

{4} Sergeant Eric Brackeen, a certified law enforcement officer assigned to the Chaves County Metro Narcotics Task Force Division of the Roswell Police Department, responded to Ary's call. Sergeant Brackeen noticed that the "[Crystal] Light container was crunched in, apparently from the bag being vacuum sealed." He summoned canine handler, Detective Jimmy Preston, and narcotics detection dog, Coro, to inspect the package for the presence of narcotics. Coro sniffed the package, but failed to indicate a positive response for the presence of narcotics.

{5} Despite Coro's failure to alert, Sergeant Brackeen averred that, on the basis of his professional training and eleven years of law enforcement experience, he knows that "often times narcotics are packaged in unusual containers, wrapped with duct tape, and vacuum sealed, to make the narcotics less detectable by narcotic detection canines," and additionally, that "narcotics are often mailed to other places using carriers such as UPS." Accordingly, Sergeant Brackeen believed that probable cause existed to issue a search warrant for the package.

{6} The issuing court issued the search warrant. When Sergeant Brackeen executed the search warrant, he found 1.95 ounces of marijuana inside of the Crystal Light and Ferrero containers. Based on this evidence, Sergeant Brackeen procured a second search warrant to search Defendant's residence for illegal narcotics and paraphernalia. When the second search warrant was executed, drug paraphernalia was found in Defendant's home. Thereafter, Defendant was charged by criminal information with possession of marijuana with intent to distribute in violation of NMSA 1978, Section 30-31-22 (2005), and possession of drug paraphernalia in violation of NMSA 1978, Section 30-31-25.1 (2001).

{7} Prior to trial, Defendant moved to suppress the marijuana and drug paraphernalia evidence, claiming that it had been obtained "in violation of his constitutional rights to be free from unreasonable search and seizure under the Fourth Amendment [to] the United States Constitution and Article 2, Section 10 of the New Mexico Constitution." Defendant argued that the marijuana evidence should be suppressed because the affidavit submitted in support of the first search warrant failed to set forth sufficient facts to establish probable cause. Defendant argued that the drug paraphernalia evidence also should be suppressed as fruit of the poisonous tree. The suppressing court granted Defendant's motion, concluding that "the negative sniff by the detection dog in this case refuted and even eliminated any suspicion that otherwise existed by reason of the pre-warrant occurrences and observations at the UPS store."

{8} The Court of Appeals, in a divided opinion, affirmed the decision of the suppressing court. Williamson, 2008-NMCA-096, ¶ 13, 144 N.M. 522, 188 P.3d 1273. The Court stated that, "[i]f narcotics detection dogs in fact are extremely reliable in discriminating narcotics from other substances, then an unexplained failure to alert will significantly, and in marginal cases may fatally, undermine an otherwise sufficient showing in support of a warrant." Id. ¶ 7. The Court concluded that, prior to Coro's failure to alert, it was reasonable to infer that the package contained embarrassing or incriminating material, given Defendant's nervous and evasive behavior, and the suspicious manner in which the containers were packaged. Id. ¶ 8. "However, after Coro failed to alert, and in the absence of a satisfactory explanation of why Coro failed to alert, the inference that the package contained drugs was significantly dispelled." Id.

{9} The Court rejected the State's claim that Sergeant Brackeen's sworn statement that "often times narcotics are packaged in unusual containers, wrapped with duct tape, and vacuum sealed, to make the narcotics less detectable by narcotic detection canines," adequately explained Coro's failure to alert. See id. ¶ 9. The Court determined that this statement was not an expression of Sergeant Brackeen's opinion that duct-taping and vacuum-sealing successfully prevented Coro from being able to detect the odor of narcotics, but rather, was "a description of the practice of drug traffickers who commonly believe (rightly or wrongly) that vacuum-sealing will make narcotics less detectable." Id. Without a more definite and detailed explanation, the Court concluded that the State had failed to dispel the "strong negative inference arising from Coro's failure to alert." Id.

{10} Even without this negative inference, the Court concluded that the remaining evidence, although certainly suspicious, was insufficient to establish probable cause. The Court noted that "the probable cause inquiry should be `particularly exacting' when the conduct observed by an officer is consistent with lawful activity, and this is so `regardless of an officer's qualifications and experience.'" Id. ¶ 10 (quoting State v. Nyce, 2006-NMSC-026, ¶ 14, 139 N.M. 647, 137 P.3d 587). Because Defendant's conduct was lawful and because there was no evidence linking Defendant to illegal drugs, the Court concluded that "the facts known to [Sergeant Brackeen] prior to the dog sniff did not constitute probable cause to believe that the contents of the package were illegal drugs." Id.

{11} Judge Sutin dissented from the majority opinion. Id. ¶ 15-27. He agreed with the majority that "the State has the burden to explain [a canine] alert failure, if it can, and the failure to satisfy that burden ought to be a part of the mix in considering the evidentiary sufficiency for probable cause for a search warrant." Id. ¶ 18. However, because the record was inadequate in this case to determine what weight, if any, to attribute to Coro's alert failure, he believed that it should be weighed as a neutral factor. Id. ¶ 24. In light of the deference given "to a magistrate's decision, and to an officer's observations, experience, and training," Judge Sutin concluded that the remaining facts set forth in the affidavit were sufficient to establish probable cause. Id. ¶ 25 (internal quotation marks and citation omitted). Accordingly, he would have upheld the search warrant and denied Defendant's motion to suppress.

{12} We granted the State's petition for writ of certiorari pursuant to NMSA 1978, Section 34-5-14(B) (1966) and Rule 12-502 NMRA to determine: (1) whether the Court of Appeals applied the proper standard of review to the issuing court's determination of probable cause and (2) the impact, if any, that the canine alert failure had upon the issuing court's determination probable cause. See State v. Williamson, 2008-NMCERT-007, 144 N.M. 594, 189 P.3d 1216.

II. DISCUSSION

A. Standard of Review

{13} We first address the proper standard of review to apply to an issuing court's determination that the facts alleged in an affidavit are sufficient to establish probable cause. The State...