United States v. Rael
| Decision Date | 03 October 1972 |
| Docket Number | No. 72-1123.,72-1123. |
| Citation | 467 F.2d 333 |
| Parties | UNITED STATES of America, Appellee, v. Becky RAEL, Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Clyde E. Sullivan, Jr., Albuquerque, N. M., for appellant.
Don J. Svet, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., with him on the brief), for appellee.
Before BREITENSTEIN, SETH and DOYLE, Circuit Judges.
This is a direct appeal from a conviction of illegal receipt and concealment of heroin, in violation of 21 U.S.C. § 174. The defendant-appellant on this appeal challenges the validity of the search warrant, the execution of which disclosed the narcotics used as evidence at her trial.
Several weeks prior to the date appellant was arrested, two narcotics officers of the Albuquerque police department began surveillance of two residences located on a corner lot at Barelas Road S.W. and Parkway Road S.W. in Albuquerque, New Mexico.
Appellant's brother, Melchor Tafoya, lived in the front house, known as 1913 Barelas Road S.W., and appellant lived in the rear house, about 150 feet to the west, known as 410 Parkway S.W. The warrant properly described the premises searched.
The officers observed the presence of persons suspected of being narcotics users around the two houses. These persons would approach the front house where appellant's brother would usually come out and meet them. The officers did not observe any of the suspected narcotics users ever enter appellant's house, but did observe that on several occasions, appellant's brother would come to her house and she would drive him somewhere in her automobile.
The narcotics officers through the use of a confidential informant ascertained that heroin was being sold on the premises, and they secured search warrants for the two residences from a state judge. Each of the warrants was based upon an affidavit signed by the two officers.
Appellant was home at the time the officers arrived to execute the warrant. Approximately 37.5 grams of heroin and other narcotics paraphernalia were found in the search of her home, some in a dresser drawer under ladies underclothing, and the remainder under a cushion on a couch in the living room. Appellant was arrested and charged with possession of heroin.
No federal officers participated in the investigation or in executing the search warrant.
The appellant raises two points of error in this appeal. Both points deal with the search warrant pursuant to which her residence was searched and the contraband used as evidence against her at trial was seized.
The validity of the search and seizure, though made by state officers, must be judged as if made by federal officers, if the evidence obtained therefrom is to be used in a federal trial. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960).
Appellant argues that section 41-18-1, N.M.S.A.1953, which is basically the same as Rule 41 of the Federal Rules of Criminal Procedure, and the federal cases require that probable cause be apparent on the face of the warrant. Section 41-18-1 of the New Mexico statutes provides in pertinent part:
As to probable cause, the recitation on the face of the warrant is that:
". . . Affiants state that they have probable cause to believe, based upon the following facts, that the above listed things to be seized are now located upon the persons and premises set forth above."
The face of the warrant does not show the "facts" referred to, but they are contained in the affidavit used to support the request for the warrant which was attached to and served with the warrant. Appellant was thus informed of the reasons for the search and its purposes. The affidavit was incorporated into the warrant, and we shall not require that the facts stated in the affidavit be recited again on the face of the warrant when they are served together. See Clay v. United States, 246 F.2d 298 (5th Cir.).
Appellant also contends that the statute (N.M.S.A.1953 § 41-18-1) was not complied with in that it did not specifically "designate the justice, judge, or magistrate to whom it shall be returned."
The warrant contains the following paragraph:
"An sic if you find the same, or any part thereof, to bring it before me at Albuquerque, New Mexico, or before any Court of...
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