State v. Gonzalez

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date.

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

7 STATE OF NEW MEXICO, 8 Plaintiff-Appellant, 9 v. NO. 29,843 10 SARA GONZALES, 11 Defendant-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Neil C. Candelaria, District Judge

14 Gary K. King, Attorney General 15 Anita Carlson, Assistant Attorney General 16 Santa Fe, NM

17 for Appellant

18 John A. McCall 19 Albuquerque, NM

20 for Appellee

21 MEMORANDUM OPINION 22 KENNEDY, Judge.

1 In suppressing evidence of drug trafficking found in Defendant’s apartment, the 2 district court concluded that “[t]he affidavit [supporting the warrant] did not include 3 sufficient specific facts to establish probable cause for the issuance of a search warrant 4 under the [Fourth] and [Fourteenth A]mendments of the [United States] Constitution 5 . . . [or] under Article II, [S]ections 10 and 18 of the New Mexico Constitution.” The 6 State now appeals the district court’s suppression order. We affirm, holding that there 7 was not a substantial basis to support a finding of probable cause. 8 I. BACKGROUND 9 The affidavit, written by a detective, consisted of the following statements. The 10 detective stated that a confidential informant advised him that Defendant’s boyfriend, 11 Raymondo Maso, with whom Defendant was residing at the time of the search, sold 12 cocaine on a regular basis. The informant also told the detective that he has known 13 Maso for over six months, and he has purchased cocaine from him in amounts over 14 one ounce. The informant stated that Maso came to his residence on numerous 15 occasions to conduct the drug transactions. The informant provided the makes, 16 models, and license plate numbers for the vehicles that Maso drove to his residence 17 on these occasions. The informant further stated that Maso was still selling drugs by 18 delivery and that he kept a supply at his apartment. The informant made a telephone 19 call to Maso andordered some cocaine, which Maso agreed to sell to him.

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1 The detective then conducted surveillance of Maso and observed him leave his 2 apartment driving one of the vehicles described by the informant. The detective 3 observed Maso meet an unidentified man (not the informant), who was waiting for 4 him at the back of an apartment complex. There, Maso conducted a hand-to-hand 5 transaction with the man. The detective stated that, based on his training and 6 experience as a detective, he recognized this behavior to be consistent with drug 7 trafficking. 8 Based upon the above information, a district judge issued a warrant. Upon 9 review during a suppression hearing, the district court suppressed the evidence, 10 holding that there was not a substantial basis to support a finding of probable cause. 11 II. DISCUSSION 12 The State contends that the warrant had a substantial basis to support a finding 13 of probable cause and, therefore, the reviewing district court’s suppression order 14 should be reversed. “[A]n issuing court’s determination of probable cause must be 15 upheld if the affidavit provides a substantial basis to support a finding of probable 16 cause.” State v. Williamson, 2009-NMSC-039, ¶ 29, 146 N.M. 488, 212 P.3d 376. 17 “Probable cause to issue the warrant requires a factual showing that there is a 18 reasonable probability that evidence of a crime will be found in the place to be 19 searched.” State v. Vest, 2011-NMCA-037, ¶ 6, 149 N.M. 548, 252 P.3d 772, cert.

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1 granted, 2011-NMCERT-005, ___ N.M. ___, ___ P.3d ___ (No. 32,940, May 3, 2 2011) (internal quotation marks and citation omitted). Probable cause “is more than 3 a suspicion or possibility but less than a certainty of proof. When ruling on probable 4 cause, we deal only in the realm of reasonable possibilities, and look to the totality of 5 the circumstances to determine if probable cause is present.” Williamson, 2009- 6 NMSC-039, ¶ 31 (internal quotation marks and citations omitted). We limit our 7 review to the four corners of the search warrant affidavit. Id. 8 In this case, the probable cause to search the apartment was based on (1) the 9 informant’s statement that Defendant stores a supply of cocaine in the apartment, and 10 (2) the detective’s statement that he saw Maso leave the apartment, get into a vehicle, 11 drive to meet an unidentified man, and make a hand-to-hand transaction with that 12 man. We first evaluate whether the informant’s statement regarding the supply of 13 drugs in the apartment could create a substantial basis for probable cause. Then, we 14 address whether the detective’s observations could establish a substantial basis. 15 A. The Informant’s Statement Lacks a Sufficient Basis of Knowledge 16 In order to rely upon the informant’s statement in the affidavit, it must pass the 17 Aguilar/Spinelli test. State v. Barker, 114 N.M. 589, 591, 844 P.2d 839, 841 (Ct. App. 18 1992). Under this test, there are two prongs that must be fulfilled: (1) the basis of 19 knowledge prong and (2) the credibility prong. Id. At issue with regard to the

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1 informant’s statement in this case is the basis of knowledge prong. The basis of 2 knowledge prong “requires that the affidavit include the factual basis for any 3 conclusions drawn by the informant to enable the court to perform an independent 4 analysis of the facts and conclusions.” Id. This prong requires that the affidavit 5 provide some “indication of how the informant gathered this information” or 6 “sufficient detail concerning the alleged illegal activity” so the reviewing court can 7 determine “whether the affidavit, standing alone, adequately stated the informant’s 8 basis of knowledge.” State v. Cordova, 109 N.M. 211, 218, 784 P.2d 30, 37 (1989). 9 In this case, the detective did not indicate how the informant knew that the 10 apartment contained a supply of cocaine. There is no indication that the informant had 11 been to the apartment, since he explicitly stated that Maso came to his residence for 12 all of their drug transactions. In addition, the statements in the affidavit fail to provide 13 sufficient detail to be self-authenticating. The affidavit only states the address of the 14 apartment and that “Maso keeps a supply of drugs at [the apartment.]” We conclude 15 that the informant’s statements fail to meet the basis of knowledge prong as the 16 affidavit does not provide sufficient detail or explain how he obtained such 17 information. We therefore disregard these statements in evaluating where there was 18 a substantial basis for probable cause to search the apartment.

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1 B. The Detective’s Statement Does Not Create a Reasonable Inference of 2 Cocaine in the Apartment

3 We next address whether the detective’s statement provides a substantial basis 4 for probable cause. In making a probable cause determination, the court issuing the 5 warrant “may draw reasonable inferences from the facts and circumstances alleged in 6 the affidavit.” State v. Gonzales, 2003-NMCA-008, ¶ 12, 133 N.M. 158, 61 P.3d 867. 7 “A reasonable inference is a conclusion arrived at by a process of reasoning. This 8 conclusion must be a rational and logical deduction from facts admitted or established 9 by the evidence, when such facts are viewed in the light of common knowledge or 10 common experience.” Baca v. Bueno Foods, 108 N.M. 98, 102, 766 P.2d 1332, 1336 11 (Ct. App. 1988) (internal quotation marks and citation omitted). 12 The State argues that the detective’s observations create a reasonable inference 13 “that there would be evidence of trafficking at [the apartment.]” We disagree. The 14 detective stated that he saw Maso leave the apartment, get into a vehicle, and drive to 15 a location before making a hand-to-hand drug transaction. All drug transactions 16 mentioned in the affidavit involved vehicles, not the apartment. This information 17 creates equally possible inferences that the drugs used to conduct that transaction 18 could be stored in either the apartment or the vehicle. “Evidence from which a 19 proposition can be derived only by speculation among equally plausible alternatives 20 is not substantial evidence of the proposition.” Id. at 102, 766 P.2d at 1336. Based

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1 upon the detective’s statement, there was substantial evidence that drugs were in 2 Maso’s vehicle. This was confirmed by his observation of the drug transaction in the 3 back of an apartment complex. It was also confirmed by the informant’s description 4 of other drug buys that occurred at the informant’s residence, to which Maso 5 presumably traveled. Without more detailed information about how drugs may have 6 been present in Maso’s apartment, specifically only one plausible proposition was 7 established by the actual facts. The alternative proposition of drugs located at Maso’s 8 apartment remained mere speculation with no factual foundation. Such speculation, 9 insufficient to meet even a substantial evidence standard, is also insufficient to meet 10 the substantial basis burden. State v. Gurule, 2011-NMCA-063, ¶ 15, 150 N.M. 49, 11 256 P.3d 992, cert. granted, ___-NMCERT-___, ___ N.M. ___, ___ P.3d ___ (No. 12 33,023, June 8, 2011) (“[T]he substantial basis standard of review is more deferential 13 than the de novo review applied to questions of law, but less deferential than the 14 substantial evidence standard applied to questions of fact.” (internal quotation marks 15 and citation omitted)). 16 Because the detective’s statements supported no more than a speculation that 17 the apartment contained drugs, we conclude that it fails to establish a reasonable 18 inference to create a substantial basis for a finding of probable cause.

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1 III. CONCLUSION 2 Because there is not a substantial basis for a finding of probable cause based 3 upon any of the information provided in the affidavit, we affirm the district court’s 4 suppression order. 5 IT IS SO ORDERED.

6 _______________________________ 7 RODERICK T. KENNEDY, Judge

8 I CONCUR:

9 ___________________________ 10 TIMOTHY L. GARCIA, Judge

11 JAMES J. WECHSLER, Judge (dissenting)

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1 WECHSLER, Judge (dissenting). 2 Our Supreme Court has recently “advised district judges reviewing a search 3 warrant after the fact to defer to the judgment and reasonable inferences of the judge 4 who issued the warrant.” State v. Trujillo, 2011-NMSC-___ , ¶ 1, ___ N.M. ___, ___ 5 P.3d ___ (No. 32,234, Oct. 27, 2011). In my view, the information in the affidavit 6 provided a substantial basis to give deference to the original district judge’s finding 7 of probable cause. I believe that, although the informant’s conclusory statement is 8 insufficient in isolation, the informant’s personal knowledge of the drug operation 9 over a period of six months and the affiant’s personal observation of Maso leaving the 10 apartment and conducting a drug transaction is sufficient to infer that the apartment 11 contained a supply of drugs. I therefore respectfully dissent.

12 _______________________________ 13 JAMES J. WECHSLER, Judge