State v. Wisdom

• Decision Date: 28 August 1990
• Docket Number: No. 12005,12005
• Citation: 110 N.M. 772,1990 NMCA 99,800 P.2d 206
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Steve WISDOM, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 206

800 P.2d 206

110 N.M. 772

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

No. 12005.

Court of Appeals of New Mexico.

Aug. 28, 1990.

Certiorari Denied Oct. 17, 1990.

[110 N.M. 773] Hal Stratton, Atty. Gen., Margaret McLean, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.

H.R. Quintero, Robinson & Quintero, P.C., Silver City, for defendant-appellee.

OPINION

DONNELLY, Judge.

The state appeals from an order of the district court suppressing evidence obtained pursuant to multiple search warrants. The single issue raised on appeal is whether the district court erred in granting the motion to suppress. We reverse.

Defendant was charged with multiple counts of possession of controlled substances; receiving, retaining or disposing of stolen property; and possession of firearms by a felon. He moved to suppress the evidence obtained by police during separate searches conducted pursuant to five different search warrants. It is undisputed that the third, fourth, and fifth search warrants were issued pursuant to information obtained incident to the execution of the first and second warrants and that the affidavits in support of the issuance of the first and second search warrants contained the same identical facts.

Defendant's motion to suppress attacked the sufficiency of the affidavits submitted to obtain the search warrants on the ground that the facts in the affidavits did not establish probable cause. See N.M. Const. art. II, Sec. 10; SCRA 1986, 5-211(E); State v. Cordova, 109 N.M. 211, 784 P.2d 30 (1989). Specifically, defendant argued that the affidavits, which were based in part on hearsay provided by unnamed informants, were deficient because they did not inform the issuing magistrate "of some of the underlying circumstances from which the informant concluded that [the facts were as] he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant * * * was 'credible' or his information 'reliable.' " State v. Cordova, 109 N.M. at 213, 784 P.2d at 32 (quoting Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964)). The district court agreed and suppressed all the evidence seized pursuant to the warrants, except a scale.

The state contends that the question of whether probable cause existed for the issuance of the warrants constitutes a question of law, and thus this court is not required to defer to the determination of the district court. Defendant, however, contends that the issues in this case are purely factual and this court is required to affirm the district court's ruling if it is supported by substantial evidence in the record. Defendant relies on State v. Lopez, 109 N.M. 169, 783 P.2d 479 (Ct.App.1989). In this case, however, both the district court and this court are engaged in the same exercise: a review of the sufficiency of the affidavits submitted to the magistrate court judge in support of the affidavits in question. Under these circumstances, both the district court and this court must give those affidavits a common sense reading and determine whether the magistrate court judge was entitled to find probable cause. See State v. Snedeker, 99 N.M. 286, 657 P.2d 613 (1982). Based upon a review of the affidavits in question, it is clear that the issues presented in reviewing these affidavits involve legal rather than factual issues.

New Mexico Constitution article II, Section 10, provides, in part, that "[n]o warrant * * * shall issue * * * without a written showing of probable cause, supported by oath or affirmation." Probable cause requires a showing of the existence of facts which would lead a judge or magistrate, acting in a neutral capacity and as a prudent person, to reasonably believe that evidence relating to the commission of a crime exists on the premises requested to be searched. State v. Donaldson, 100 N.M. 111, 666 P.2d 1258 (Ct.App.1983).

The substantial evidence standard of review is used to review factual determinations of the trial courts. State v. Lopez. Under this standard of review, the reviewing court views the evidence in the light most favorable to the initial factual determination, resolving all conflicts in the evidence and indulging all inferences in favor of the trial court's factual determination. Id.; see also State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978). This standard of review recognizes that the determination of facts frequently necessitates drawing inferences from the facts presented and determining the credibility of witnesses. See State v. Anderson, 107 N.M. 165, 754 P.2d 542 (Ct.App.1988). However, a reviewing court is not bound by a lower court's conclusions of law. Boone v. State, 105 N.M. 223, 731 P.2d 366 (1986). See also Martinez v. Martinez, 93 N.M. 673, 604 P.2d 366 (1979).

In this case, the initial factual determination underlying the issuance of the several search warrants was made by the magistrate court based upon the affidavits submitted by law enforcement officials. Thus, the district court, like this court, acted as a reviewing court and is required to defer to factual determinations made by the magistrate. Here, the parties agree that the only facts the magistrate could consider were the facts contained in the affidavits, therefore, the matters contained in the affidavits are the controlling facts on appeal. See Aguilar v. Texas; State v. Duran, 90 N.M. 741, 568 P.2d 267 (Ct.App.1977). Under the record herein, the only factual issues incident to this appeal involve those inferences which the issuing magistrate may reasonably draw from the facts set out in the affidavits. See State v. Cordova, 109 N.M. at 218, 784 P.2d at 37. In reviewing the sufficiency of an affidavit for issuance of a search warrant, the determination of probable cause by the issuing magistrate is entitled to deference. Id.; State v. Snedeker. See also State v. Cervantes, 92 N.M. 643, 593 P.2d 478 (Ct.App.1979). Cf. State v. Bowers, 87 N.M. 74, 529 P.2d 300 (Ct.App.1974) (listing the standards for the sufficiency of search warrants). However, the ultimate question of whether the contents of the affidavit are sufficient is a conclusion of law. Cf. Ulibarri v. Maestas, 74 N.M. 516, 395 P.2d 238 (1964) (question of probable cause for arrest without warrant is a question of law); State v. Anderson (question of probable cause to search without a warrant is question of law); State v. Marquez, 103 N.M. 265, 705 P.2d 170 (Ct.App.1985) (probable cause to arrest without warrant is question of law).

Both the district court in ruling on a motion to suppress and this court on appeal conduct the same type of review of an affidavit in support of a search warrant issued by the magistrate court. As observed in Snedeker:

When reviewing affidavits in support of search warrants, a magistrate, and an appellate court, must consider the affidavit as a whole. All direct and circumstantial evidence alleged, as well as all reasonable inferences to be drawn from those allegations, should be considered. A material fact need not be proved by direct evidence. It is sufficient if there is evidence from which the fact can properly be inferred. [Citations omitted.]

Id. 99 N.M. at 290, 657 P.2d at 617.

Under the above rules, we look to whether the facts and inferences contained in the affidavit, as a matter of law, constitute probable cause as defined in Rule 5-211(E) and the New Mexico Constitution for issuance of the search warrants in question.

Five search warrants were issued in this case. Four warrants authorized the search of property located near the intersection of County Roads B013 and B014 in Deming, and one search warrant authorized the search of property located at 1210 South Silver Street in Deming. The same affidavit was submitted in support of the application to obtain each search warrant. The affidavit reads as follows:

1. The affiant, Robert Jones, detective of Deming Police Dept. with six years law enforcement experience, of which the past four years have been with the Deming New Mexico Police Dept, conducting investigations of violations of controlled substances and burglaries, under oath do make the following statements:

2. During the month of June 1989, it was discovered that several items have been stolen from the Deming Packing plant located on U.S. 70-80 East.

3. Several of these items have reportedly been removed by Benny Mathis and Joe Aiello. These items have been passed to other individuals including Jimmy Mathis.

4. On at least three seperate [sic] occassions [sic] the affiant has received information that metal and equipment from the D-Pac burglaries are currently being stored at the Steve Wisdom property south of Deming, New Mexico that is located near the intersection of County Road B013 and B014.

5. On at least 2 occassions [sic] affiant has received information that Wisdom has stored several different types of controlled substances that include cocaine, meth-amphetamine, and other controlled substances. On these occassions [sic] affiant has received information that the items are currently being stored at the Wisdom property south of Deming and at his father's residence located at 1210 S. Silver Street, Deming New Mexico.

6. Affiant has received information that there is [sic] currently several pieces of copper tubing and aluminum from Deming Packing at the Wisdom residence located at 1210 S. Silver St. and that there is currently being stored on the Wisdom property located south of Deming, a Toledo meat scale that was removed from the D-Pac plant.

7. On 6/26/89 affiant talked to the caretaker of D-Pac, Skeeter Williams. Williams checked and found that a Toledo scale was missing from D-Pac. The description matched that scale which [sic] the informant says is on the Wisdom property.

8. On 6/26/89 it was also learned that Jimmy Mathis has stored his trailer at the Wisdom property. Mathis is currently imprisoned at La Tuna Federal...