State v. Campos

827 P.2d 136, 113 N.M. 421

• Court: New Mexico Court of Appeals
• Decided: December 4, 1991
• Docket: 12482
• Status: Published

Opinions

OPINION

DONNELLY, Judge.

Defendant appeals his conviction for possession of heroin, contrary to NMSA 1978, Section 30-31-23(B)(4) (Repl.Pamp.1989). We address three issues: (1) whether the trial court erred in failing to require the state to disclose the identity of a confidential informant; (2) whether the trial court erred in failing to suppress the evidence seized pursuant to the stop, arrest, and search of defendant; and (3) whether the trial court erred in denying defendant’s motion for a mistrial based on alleged improper prosecutorial comments. We affirm.

FACTS

Acting on information received by a confidential informant that defendant was going to deliver heroin to a location on East Deming Street in Roswell on December 8, 1989, Lieutenant Luis Lara of the Chaves County Sheriff’s Office, together with other officers, set up surveillance of the area. The confidential informant also told Lara that defendant would be driving to the location in either a silver and black pickup truck or a small blue car.

Defendant had been the subject of an ongoing investigation by law enforcement officers for approximately a year, based upon information received by Lara indicating that defendant was engaged in illicit drug activity. From Lara’s prior surveillance of defendant, he was also aware that defendant frequently used either the pickup or the automobile identified by the confidential informant.

On the morning in question, defendant was observed by the officers as he approached the location described by the confidential informant as the place where the heroin was to be delivered. The officers stopped defendant’s car and ordered him out of his vehicle. Defendant was then arrested without a warrant, handcuffed, and searched. The search of his person and the vehicle he was driving resulted in the seizure of seven packages of heroin. Thereafter, defendant was charged with possession of heroin with intent to distribute.

Prior to trial, defendant moved pursuant to SCRA 1986, 11-510 for disclosure of the identity of the confidential informant who had provided sheriff’s deputies with the information leading to his arrest. The trial court conducted in camera examinations of both Lara and the confidential informant and thereafter denied the motion. The trial court concluded that the information relied upon by the officers was “shown to be reliable” and that the stop, arrest, and subsequent search of defendant, under the circumstances, was lawful and proper. Based on its findings and conclusions, the trial court ruled that the state was not required to disclose the identity of the confidential informant.

Defendant also moved to suppress the evidence seized pursuant to both his warrantless arrest and the ensuing warrantless search. At the hearing on the motion, Lara testified that the information given by the confidential informant indicated that defendant would be transporting heroin on the morning in question at approximately 8:00 a.m., following one of two routes, and that based upon Lara’s previous contacts with the confidential informant, the informant was known to be both reliable and credible. Following the denial of defendant’s motion to suppress, the case proceeded to trial. At the conclusion of the state’s presentation of its case-in-chief, the trial court granted defendant’s motion for a directed verdict on the charge of intent to distribute a controlled substance. At this juncture, defendant entered a plea of guilty to one count of possession of heroin, but reserved the right to appeal all pretrial issues.

DISCUSSION

I. In Camera Hearing

Defendant first argues that the trial court erred in failing to require disclosure of the identity of the confidential informant pursuant to Evidence Rule 11-510(C)(2). Under this rule, the trial court may order the identity of the confidential informant to be disclosed if it appears that the “informer will be able to give testimony that is relevant and helpful to the defense of an accused, or is necessary to a fair determination of the issue of guilt or innocence____” Id. See also State v. Vasquez, 109 N.M. 720, 790 P.2d 517 (Ct.App.1990).

Rule 11-510 provides a method for balancing the state’s interest in protecting the free flow of information against a defendant’s right to prepare his defense. State v. Perez, 102 N.M. 663, 699 P.2d 136 (Ct.App.1985); State v. Beck, 97 N.M. 312, 639 P.2d 599 (Ct.App.1982). Regardless of the circumstances, however, there is no absolute right to disclosure of the identity of the confidential informant. See McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); see also State v. Perez; see generally 1 W. LaFave, Search and Seizure § 3.3(g) (1987). Even where the court determines that disclosure is proper, the state may elect to dismiss the pending charge rather than disclose the identity of the informant. State v. Perez.

On appeal, we review the trial court’s decision denying disclosure of the identity of a confidential informant for an abuse of discretion. See State v. Robinson, 89 N.M. 199, 549 P.2d 277 (1976). As observed in Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 629, 1 L.Ed.2d 639 (1957), an ad hoc balancing test is applied in determining whether the trial court properly exercised its discretion and “[wjhether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.”

Defendant contends disclosure of the confidential informant's identity is necessary to accord him fundamental due process. Merely providing information concerning an illegal drug transaction does not, however, without some additional showing by defendant, mandate disclosure of the identity of the confidential informant. See State v. Perez. In the instant case, the record indicates that the confidential informant was not present at the time defendant was stopped, arrested, and searched; thus, the confidential informant was not a witness to any sale or defendant’s possession of the controlled substance found at the time of his arrest. See id. Instead, as indicated by evidence presented at the in camera hearing, the confidential informant conveyed information that defendant had been distributing controlled substances and that he would be engaging in illicit drug activity on the morning that he was apprehended. Testimony presented at the in camera hearing supports the trial court’s determination denying defendant’s motion for disclosure. Based upon the evidence presented, the trial court could properly conclude that the informant did not possess information relevant to the preparation or presentation of his defense, or which would exculpate defendant from the charge against him. See Schmid v. State, 615 P.2d 565 (Alaska 1980); see also United States v. Zamora, 784 F.2d 1025 (10th Cir.1986). Defendant failed to establish either that (1) the informer would be able to give testimony that is relevant and helpful to his defense, or (2) that disclosure is necessary to a fair determination of defendant’s guilt or innocence. State v. Vasquez; State v. Hernandez, 104 N.M. 268, 720 P.2d 303 (Ct.App.1986).

Where an accused, under Rule 11-510(C)(2), challenges the basis for his warrantless arrest resulting from information provided by a confidential informant, an in camera hearing permits the trial court to determine whether the confidential informant was reliable and whether the police officer had a reasonable basis to rely upon the information conveyed. See State v. Cervantes, 92 N.M. 643, 593 P.2d 478 (Ct.App.1979). The mechanism of the in camera hearing also gives the trial court the opportunity to examine how the confidential informant became aware of the information divulged. Id. Therefore, the trial court is able to accurately assess the validity of the basis for the arrest, and law enforcement officials are prevented from being the final arbiters of probable cause in situations where confidential information is relied on to support a claim that probable cause existed to effect an arrest. See State v. Beck. Based on the record before us, we cannot say the trial court abused its discretion in refusing to require the state to disclose the confidential informant’s identity under Rule 11-510(C)(2). See State v. Robinson.

Next, we also examine whether disclosure of the confidential informant was required under subsection (C)(3) of Rule 11-510. This subsection provides in applicable part:

Legality of obtaining evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, he may require the identity of the informer to be disclosed.

In reviewing defendant’s contentions raised under this portion of the rule, the trial court is required to examine the reasonableness of the belief of the individual who effectuated the arrest and obtained the evidence in question, based upon the information received from the confidential informer. See State v. Cervantes. Our reading of defendant’s motion indicates that he relied principally upon the provisions of Rule 11-510(C)(3) in seeking disclosure of the confidential informant because his motion refers to his desire to question Lara concerning the nature of the information the officer received from the informant leading to the stop, arrest, and the ensuing search of defendant and his vehicle. Defendant argues that by not disclosing the identity of the confidential informant, he was denied the full and fair opportunity to defend himself, and thus the proceedings against him lacked fundamental fairness. In furtherance of this contention, he reasons that without an order of disclosure, he was deprived of the opportunity to establish that the officers lacked any reliable information or probable cause to justify his stop and warrantless arrest. Alternatively, he argues that if a reasonable basis for providing the information did exist, the informant was not reliable and that it was essential that defense counsel have access to the information given by the confidential informant in order to fully cross-examine Lara concerning this issue. We find this argument unpersuasive.

The trial court conducted in camera hearings of both Lara and the confidential informant. In order to determine whether the trial court abused its discretion in refusing to require disclosure, see State v. Robinson, the appellate court will review the in camera proceedings to determine whether the true identity of the confidential informant was revealed and whether the trial court conducted a thorough and vigorous investigation in order to determine the veracity of the information supplied to the police. See State v. Wolken, 103 Wash.2d 823, 700 P.2d 319 (1985) (en banc). In reviewing such proceedings, this court scrutinizes the record in order to determine whether the trial court conducted a vigorous and thorough examination of the confidential informant and other witnesses in order to ensure that the balancing process was fairly applied. See generally McCray v. Illinois.

At the in camera hearing conducted herein, the trial court inquired into the basis for the informant’s knowledge of defendant’s drug selling activities, other information given in the past which led to the arrest of individuals involved in illicit drug activity, and the details of Lara’s prior investigation and surveillance of defendant. Reviewing the in camera proceedings and other matters in the record in their entirety, we determine that the evidence before the trial court was sufficient to enable it to properly balance defendant’s right to a fair trial and the state’s interest in protecting its availability of information. The trial court did not abuse its discretion in refusing to order disclosure of the confidential informant under Rule 11-510(C)(3).

When we assigned this case to the general calendar, we asked the parties to address other issues. In view of our disposition, it is not necessary to address those issues.

II. Denial of Motion to Suppress

Under this issue, defendant argues that the trial court erred in failing to suppress the evidence resulting from the search following his stop and arrest. He also contends that under the circumstances here, in order to uphold the validity of his warrantless arrest, the state was required to establish that the arresting officer had probable cause to believe that a felony had been or was about to be committed by defendant and, additionally, that exigent circumstances existed for making a warrantless arrest. See State v. Martinez, 94 N.M. 436, 612 P.2d 228, cert. denied, 449 U.S. 959, 101 S.Ct. 371, 66 L.Ed.2d 226 (1980); Randall v. State, 656 S.W.2d 487 (Tex.Crim.App.1983) (en banc). We concur with the first portion of defendant’s argument concerning the necessity for establishing the existence of probable cause to carry out a warrantless arrest; however, we disagree that under the United States Constitution, amendments IV and XIV, and Article II, Sections 10 or 18 of the New Mexico Constitution, exigent circumstances were required to be shown as a prerequisite to effecting a valid warrantless arrest of defendant.

This court will not disturb a trial court’s denial of a motion to suppress if it is supported by substantial evidence, unless it also appears that the ruling of the court was erroneously premised upon the law or facts. State v. Boeglin, 100 N.M. 127, 666 P.2d 1274 (Ct.App.1983); see also State v. Segotta, 100 N.M. 18, 665 P.2d 280 (Ct.App.), rev’d on other grounds, 100 N.M. 498, 672 P.2d 1129 (1983). In this case, we do not address the issue of whether the state constitution accords a greater breadth of protection against unreasonable searches and seizures than that provided under the federal constitution. See State v. Sutton, 112 N.M. 449, 816 P.2d 518 (Ct.App.1991). Defendant has not argued either at trial or on appeal that the state constitutional protections against unreasonable searches or seizures have been or should be interpreted differently from those contained in the federal constitution. Moreover, defendant’s briefs do not indicate or cite to the record showing where defendant argued at trial that the state constitutional provisions against unreasonable searches and seizures should be construed differently from those contained in the United States Constitution. Under these circumstances, no issue asserting that a distinction exists between the state constitution and federal search and seizure provisions has been preserved for review on appeal. Id.

A law enforcement officer is empowered to arrest an individual without a warrant if, at the time of the arrest, the officer has probable cause to believe that a crime was committed by the person arrested or he has probable cause to believe that the individual has committed, or is about to commit, a felony. See United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (under common law and fourth amendment to United States Constitution, peace officer may arrest without a warrant for a felony committed in his presence or where officer has probable cause to believe the person arrested has committed or is committing a felony); State v. Jones, 96 N.M. 14, 627 P.2d 409 (1981) (warrantless arrest is valid where officer has probable cause to believe that a felony has been committed by the person he arrests); Rodriquez v. State, 91 N.M. 700, 580 P.2d 126 (1978) (if officer believes, and has good reason to believe, the person has committed or is about to commit a felony, warrantless arrest may be effected); State v. Deltenre, 77 N.M. 497, 424 P.2d 782 (1966) (search of the defendant incident to warrantless arrest held valid where arrest was based upon probable cause to believe that the defendant had committed or was committing a felony), cert. denied, 386 U.S. 976, 87 S.Ct. 1171, 18 L.Ed.2d 136 (1967); State v. Garcia, 100 N.M. 120, 666 P.2d 1267 (Ct.App.1983) (law enforcement officer may make valid warrantless arrest where he has probable cause to believe individual arrested has committed a felony); State v. Kaiser, 91 N.M. 611, 577 P.2d 1257 (Ct.App.1978) (where probable cause shown to exist indicating that the defendant has committed a felony or that a felony is being committed, need for police officer to obtain arrest warrant is obviated).

Defendant asserts that our supreme court in Martinez held that a warrantless arrest and ensuing search based on a radio dispatch to a police officer “must contain as high a standard showing probable cause and reliability as that required to support a warrant, in addition to exigent circumstances which would justify proceeding without a warrant.” 94 N.M. at 440, 612 P.2d at 232. We agree that a law enforcement officer must demonstrate the existence of probable cause in order to validate an arrest made without a warrant, however, we do not read Martinez as modifying the general rule concerning the requirements necessary to effect a warrantless arrest articulated in Rodriquez and Deltenre. Moreover, Jones, decided by our supreme court after Martinez, sets forth the applicable rule in such cases.

Determination of whether probable cause exists for a peace officer to effect a warrantless arrest necessarily focuses upon the issue of whether the facts and circumstances known to the officer, or of which he has reasonably trustworthy information, would justify a person of reasonable caution to believe that the person arrested has committed or is committing an offense. State v. Jones; Rodriquez v. State; State v. Rondeau, 89 N.M. 408, 553 P.2d 688 (1976); State v. Selgado, 76 N.M. 187, 413 P.2d 469 (1966); see also State v. Copeland, 105 N.M. 27, 727 P.2d 1342 (Ct.App.1986). In Jones, the court considered a case in which the initial information possessed by the arresting officer indicating that the defendant had committed a crime originated from an anonymous informant’s tip. The Jones court reiterated the test necessary to establish the existence of probable cause to effect a valid warrantless arrest and observed that such “arrest may be based upon information from other persons where the information is corroborated or verified to an extent sufficient to establish the informant’s credibility.” 96 N.M. at 15, 627 P.2d at 410.

In reviewing the propriety of the trial court’s ruling on a motion to suppress, the appellate court is not limited to the record of the proceedings held in conjunction with the motion, but, rather, may review the entire record to determine if the officer making the arrest acted upon probable cause supported by facts indicating that the information given by the informant was reliable. See State v. Martinez. The decision of a trial court as to the reasonableness of a warrantless arrest will not be disturbed on appeal if facts are found to exist in the record supporting the trial court’s determination that the arrest was constitutionally reasonable and such conclusion is supported by substantial evidence. State v. Deltenre; see also State v. Martinez. In order to effect a valid arrest, the officer need not have a knowledge of evidence sufficient to establish the guilt of an accused beyond a reasonable doubt; a showing of probable cause is sufficient. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); see also State v. Gibby, 78 N.M. 414, 432 P.2d 258 (1967). Information given by an informant, which has been verified, or a showing that facts exist indicating the reliability of the informant, provides a basis to establish the existence of probable cause to believe that a felony has been or is being committed by an accused. State v. Deltenre; State v. Barton, 92 N.M. 118, 584 P.2d 165 (Ct.App.1978).

We find defendant’s reliance on out-of-state authority unpersuasive regarding the necessity of making a showing of the existence of exigent circumstances in order to effect a valid warrantless arrest. As the state correctly points out, West Virginia courts, although requiring a showing of exigency, have limited the requirement of exigency to warrantless arrests in a person’s residence. See, e.g., State v. Howerton, 174 W.Va. 801, 329 S.E.2d 874 (1985); State v. Craft, 165 W.Va. 741, 272 S.E.2d 46 (W.Va.1980). Randall is similarly inapposite. In Randall, the court’s decision turned on its determination that compliance was necessary with a statutory requirement of exigency before a warrantless arrest could be justified.

As observed by the Court in United States v. Watson, 423 U.S. at 421-23, 96 S.Ct. at 827:

The balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact. It appears in almost all of the States in the form of express statutory authorization____

This is the rule Congress has long directed its principal law enforcement officers to follow. Congress has plainly decided against conditioning warrantless arrest power on proof of exigent circumstances. Law enforcement officers [however] may find it wise to seek arrest warrants where practicable to do so, and their judgments about probable cause may be more readily accepted where backed by a warrant issued by a magistrate. [Footnote omitted.]

The information from both the open court hearing on the motion to suppress and that given at the in camera hearings discloses the existence of substantial evidence from which the trial court could reasonably determine that Lara had probable cause to believe that defendant was transporting heroin at the time of his arrest. At the in camera hearing, Lara testified that he had been investigating defendant’s alleged involvement in distributing illicit drugs for approximately a year. Lara further stated that he had previously set up a controlled buy of illegal drugs from defendant and the purchase was successfully completed, but he had not made an arrest because the circumstances surrounding such sale did not allow him to personally witness the sale. Lara further testified that he had previously received specific information from the confidential informant that indicated the informant’s reliability. As discussed previously, the court also conducted an in camera hearing with the confidential informant. The confidential informant testified to facts and details of defendant’s involvement in both past and current illicit drug activities. This information provided a valid basis for the trial court’s determination that the informant had provided credible and reliable information to Lara in the past. In sum, we conclude the record supports the trial court’s ruling finding that probable cause existed to justify the officers in effecting defendant’s warrantless arrest and the search incident to his arrest. See State v. Martinez; State v. Copeland.

III. Motion for Mistrial

Finally, defendant argues that the trial court erred in denying his motion for a mistrial due to what he alleges were improper comments on his silence by the prosecutor. However, it is clear from both the original and amended judgment and sentence that defendant reserved the right to appeal only pretrial issues pursuant to his guilty plea. Therefore, we determine that this issue was not properly preserved in the trial court and we decline to review it. See SCRA 1986, 12-213(A)(3) (Cum.Supp.1991); State v. Ball, 104 N.M. 176, 718 P.2d 686 (1986).

CONCLUSION

We affirm defendant’s conviction.

IT IS SO ORDERED.

MINZNER, J., concurs. APODACA, J., dissents.