State v. D Scott

• Court: New Mexico Court of Appeals
• Decided: July 31, 2009
• Docket: 29,417 29,418
• Status: Unpublished

Opinion

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellant,

4 v. NO. 29,417 & 29,418 5 (consolidated)

6 DARON SCOTT,

7 Defendant-Appellee,

8 and

9 DURYEA SCOTT,

10 Defendant-Appellee.

11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 12 Douglas R. Driggers, District Judge

13 Gary K. King, Attorney General 14 Santa Fe, NM

15 Jacqueline R. Medina, Assistant Attorney General 16 Albuquerque, NM

17 for Appellant

18 Albert J. Costales 19 Truth or Consequences, NM

20 for Appellee Daron Scott 1 Jose Coronado 2 Las Cruces, NM

3 for Appellee Duryea Scott

4 MEMORANDUM OPINION

5 VIGIL, Judge.

6 The State appeals the grant of Defendant Daron Scott’s motion to suppress

7 evidence, into which Defendant Duryea Scott joined in district court. [Duryea Scott’s

8 DS 3, ¶ 7] The State claimed that the district court erred in determining that the search

9 warrant, approved telephonically by the magistrate judge, was invalid. The State

10 contended that the warrant was written, having been prepared by the investigative

11 officer; the warrant was read to the magistrate judge; copies of the warrant and

12 inventory were provided to individuals located at the searched properties; and the

13 warrant was filed with the magistrate judge two days after execution of the warrant.

14 [DS 5] This Court’s calendar notice proposed to affirm the district court. The State

15 filed a memorandum stating that it will not oppose affirmance and pointing out certain

16 factual discrepancies in the calendar notice. We affirm.

17 The district court found that the investigator seeking the search warrant was on

18 the telephone with the magistrate judge for between three and seven minutes, during

19 which the investigator reportedly read the entire affidavit for the search warrant and

2 1 the statement of facts in support of the warrant. [RP 319-201] The district court found

2 that it was impossible for the investigator to relay to the magistrate judge the entire

3 contents of the affidavit and statement of facts or to “properly review verbally the

4 requirements, criteria and facts” in those documents during a telephone conversation

5 lasting only three to seven minutes. [RP 320] The district court found that it was

6 impossible for the magistrate judge to “properly scrutinize the facts and act as a

7 detached and neutral Magistrate” in order to approve the warrant by telephone. [RP

8 320-21]

9 Our Constitution provides that “no warrant to search any place, or seize any

10 person or thing, shall issue without describing the place to be searched, or the persons

11 or things to be seized, nor without a written showing of probable cause, supported by

12 oath or affirmation.” N.M. Const. art. II, § 10. An affidavit in support of a search

13 warrant is required to be sufficiently detailed so that the magistrate judge can make

14 a determination of probable cause. See State v. Knight, 2000-NMCA-016, ¶ 15, 128

15 N.M. 591, 995 P.2d 1033. A magistrate judge may not simply rubber stamp an

16 officer’s statement that probable cause exists for issuance of a search warrant. State

17 v. Nyce, 2006-NMSC-026, ¶ 9, 139 N.M. 647, 137 P.3d 587. A magistrate judge is

1 References are to the record proper for Duryea Scott, No. 29,418.

3 1 required to make an informed and deliberate determination of probable cause before

2 approving a search warrant. Id. New Mexico rules do not provide for telephonic

3 approval of search warrants. See Rule 5-211 NMRA.

4 As described above, the magistrate judge testified that only “pertinent parts” of

5 the statement were read to him, and that he did not believe the entire document was

6 read to him. [DS 4] We conclude that the district court was correct in determining

7 that a three- to seven-minute telephone conversation was not sufficient to allow the

8 magistrate judge to be informed about the details included in the statement of facts in

9 support of the search warrant, or to properly consider the information before acting

10 in his capacity as a detached and neutral magistrate judge to approve the issuance of

11 a search warrant.

12 To the extent that the State argues that the occupants of the properties received

13 copies of the statement and the warrant, or that the magistrate judge received a copy

14 of the warrant two days after it was executed, we conclude that these arguments refer

15 to occurrences after execution of the warrant and would have no effect on whether the

16 warrant was properly issued in the first place.

17 We affirm the district court’s grant of Defendants’ motion to suppress evidence.

18 IT IS SO ORDERED.

4 1 2 MICHAEL E. VIGIL, Judge

3 WE CONCUR:

4 5 RODERICK T. KENNEDY, Judge

6 7 LINDA M. VANZI, Judge