State v. Perea

Opinion

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: June 5, 2025 4 NO. S-1-SC-39309 5 STATE OF NEW MEXICO, 6 Plaintiff-Respondent, 7 v. 8 MICHELLE L. PEREA, 9 Defendant-Petitioner.

10 ORIGINAL PROCEEDING ON CERTIORARI 11 Angie K. Schneider, District Judge

12 Law Offices of the Public Defender 13 Bennett J. Baur, Chief Public Defender 14 Kimberly Chavez Cook, Appellate Defender 15 Carrie Cochran, Assistant Appellate Defender 16 Santa Fe, NM

17 for Petitioner

18 Office of the Attorney General 19 Hector H. Balderas, Attorney General 20 Meryl E. Francolini, Assistant Attorney General 21 Santa Fe, NM

22 for Respondent 1 OPINION 2 BACON, Justice. 3 {1} This case requires us to determine whether information provided by a 4 confidential informant (CI) in an application for a search warrant satisfies the 5 requirement of probable cause for a search warrant under Article II, Section 10 of 6 the New Mexico Constitution. Rule 5-211(E) NMRA requires probable cause to be 7 “based on substantial evidence, which may be hearsay in whole or in part, provided 8 there is a substantial basis for believing the source of the hearsay to be credible and 9 for believing that there is a factual basis for the information furnished.” Our rule 10 codifies the requirements of Aguilar v. Texas, 378 U.S. 108 (1964) (abrogated by 11 Illinois v. Gates, 462 U.S. 213 (1983)), and Spinelli v. United States, 393 U.S. 410 12 (1969) (same abrogation). The United States Supreme Court subsequently 13 “abandon[ed]” the Aguilar-Spinelli test in favor of a “totality of the circumstances 14 analysis” in Gates, 462 U.S. at 238, but we continue to follow the two-prong test set 15 forth in Aguilar-Spinelli because it more closely “effectuates the principles behind 16 Article II, Section 10” of the New Mexico Constitution. State v. Cordova, 1989- 17 NMSC-083, ¶ 17, 109 N.M. 211, 784 P.2d 30. 18 {2} Under Rule 5-211(E), when an affidavit for a search warrant relies on a CI’s 19 hearsay in whole or in part, the affidavit must set forth both (1) a substantial basis

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1 for believing the informant to be credible and (2) a substantial basis for the reliability 2 of the information provided by the informant. Id. ¶ 11. This case concerns only the 3 second requirement, as there is no dispute about whether the informant is credible. 4 For the reasons stated, we affirm the Court of Appeals’ memorandum opinion which 5 reversed the district court and held the affidavit supporting the search warrant 6 contained sufficient facts to enable the magistrate court to find probable cause. See 7 State v. Perea, A-1-CA-38407, mem. op. ¶¶ 14-15 (N.M. Ct. App. Mar. 7, 2022) 8 (nonprecedential). We write, however, to clarify the proper reasoning. 9 I. BACKGROUND 10 {3} The affidavit for search warrant in this case was submitted by an agent 11 assigned to the Otero County Narcotics Enforcement Unit of the Alamogordo Police 12 Department and relies on information provided by a CI. The affidavit relevantly 13 states:

14 • Affiant learned from a documented confidential reliable informant, 15 hereinafter referred to as CI, that within the last 72 hours, a quantity 16 of Methamphetamine seen by the CI consistent with trafficking has 17 been seen by the CI at[] 1712 North Florida Avenue, Alamogordo, 18 Otero County, New Mexico, which is being handled by a female 19 subject identified as [Defendant-Petitioner] Michelle Perea 20 [(Petitioner)] . . . . CI stated [Petitioner] keeps a continuous supply 21 of illicit narcotics at her residence and on her person[] at all times.

22 • The CI is reliable in that the CI has given information, which has 23 been corroborated, and was proven to be accurate. The CI has given

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1 information involving narcotics and houses which sell narcotics. 2 The CI has made controlled substance buys for the Otero County 3 Narcotics Enforcement Unit in Otero County, New Mexico.

4 • Affiant knows the CI is familiar with what Methamphetamine looks 5 like, how it is packaged and sold, as the CI is an admitted past user 6 of illicit drugs. Affiant questioning the CI carefully regarding drug 7 trafficking and the appearance, price, use and effects of various 8 street drugs. The CI’s Answer’s [sic] demonstrated extensive 9 knowledge about street drugs, including methamphetamine.

10 Based on the affidavit, a magistrate judge issued a search warrant for evidence of 11 trafficking controlled substances. 12 {4} When agents executed the search warrant, they uncovered 0.5 grams of 13 suspected methamphetamine and paraphernalia, including numerous hypodermic 14 syringes, a digital scale, empty jeweler baggies, and several glass and plastic 15 smoking devices in Petitioner’s garage, vehicle, and on her person. Petitioner was 16 arrested and transported to a detention center, where officers located a baggie 17 containing another 1.4 grams of suspected methamphetamine hidden in her 18 underwear. An indictment was subsequently filed charging Petitioner with 19 possessing methamphetamine and drug paraphernalia. 20 {5} Petitioner filed a pretrial motion to suppress, arguing the affidavit failed to 21 demonstrate the basis of the CI’s knowledge, citing purported deficiencies 22 comparable to those identified in State v. Belknap, A-1-CA-35195, mem. op. ¶¶ 13-

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1 15 (N.M. Ct. App. Mar. 6, 2017) (nonprecedential). Petitioner argued the affidavit 2 simply recited that in the past seventy-two hours the CI saw “a quantity of 3 methamphetamine consistent with trafficking” without “show[ing] the conditions 4 under which the informant made his/her observations, the quantity of 5 methamphetamine allegedly seen or how it was packaged[,] which might indicate an 6 intent to distribute.” Petitioner cited these alleged deficiencies as “the very defect” 7 in Belknap that was the basis for reversal of the denial of the motion to suppress in 8 that case. Petitioner also argued the warrant was overbroad, asserting without 9 authority that a search warrant “should define a place to be searched rather than a 10 person to be searched.” 11 {6} The State responded that the affidavit established the CI had personal 12 knowledge from first-hand observations of methamphetamine in Petitioner’s home 13 in an amount consistent with trafficking and of methamphetamine on her person. 14 The State argued such personal knowledge constitutes “the gold standard of basis of 15 knowledge in the law” and thus the affidavit demonstrated an adequate basis of 16 knowledge. Regarding overbreadth, the State highlighted Petitioner’s lack of 17 authority for the assertion and argued neither the warrant nor execution of the search 18 were improper as to create a basis for suppression.

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1 {7} The district court granted Petitioner’s motion, acknowledging the “CI’s 2 veracity or credibility” but finding the basis-of-knowledge prong was not satisfied. 3 Specifically, the district court found the affidavit deficient under Belknap, because 4 the affidavit failed to state the amount of methamphetamine or how the CI knew the 5 quantity was “consistent with trafficking”; failed to show the conditions under which 6 the CI made these observations, the quantity of methamphetamine allegedly seen, or 7 how it was packaged; and failed to provide evidence that the CI had seen Petitioner 8 make any sales of methamphetamine. 1 The State appealed. 9 {8} In reversing the district court, the Court of Appeals limited its review to 10 determining if the affidavit sufficiently established the CI’s basis-of-knowledge 11 prong, as both parties agreed the informant-veracity prong of Rule 5-211(E)’s basis 12 for finding probable cause was satisfied. Perea, A-1-CA-38407, mem. op. ¶ 6. In its 13 analysis, the Perea Court reached three relevant conclusions supporting reversal. Id. 14 ¶¶ 8-14.

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In its initial order granting the motion, the district court slightly misquoted the affidavit, including the phrase “seen by the CI” only once, while the affidavit used that phrase twice. The State moved for reconsideration, arguing the omission was material and improperly led the court to believe the affidavit did not assert first-

hand knowledge of the CI. The court subsequently filed an amended order that was in all respects the same as its original order, though the quoted language from the affidavit was corrected.

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1 {9} First, the Court of Appeals recognized the importance of the CI’s “first-hand 2 observation of the methamphetamine at [Petitioner’s] home,” in concert with the 3 CI’s familiarity and “‘extensive knowledge’” regarding methamphetamine. Id. ¶ 8. 4 The Court, citing three Court of Appeals cases, stated that “[i]t is well-established 5 that first-hand observations satisfy the basis of knowledge requirement.” Id. ¶¶ 8, 6 13. Under this proposition, the Court found the affidavit established a sufficient basis 7 for the CI’s knowledge. Id. ¶ 13. 8 {10} We note the Perea Court supported this first conclusion by purporting to 9 correct the district court’s reading of Belknap. As we discussed, the district court 10 relied on that nonprecedential case in finding the affidavit here deficient for lack of 11 additional detail regarding the basis of the CI’s knowledge. Attempting to 12 distinguish Belknap, the Court of Appeals stated that, because the Belknap 13 informant’s first-hand observation pertained to marijuana, personal observation 14 “was inadequate to establish probable cause because marijuana at that time could be 15 legally possessed in certain limited circumstances.” Perea, A-1-CA-38407, mem. 16 op. ¶ 10. 17 {11} In its second relevant conclusion, contrary to the district court’s concerns 18 regarding level of specificity, the Perea Court determined the affidavit was 19 sufficiently specific to support a reasonable belief Petitioner was in possession of

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1 contraband. Perea, A-1-CA-38407, mem. op. ¶ 12. The Court concluded that it was 2 “not clear that such specificity is required in the circumstances present in this case” 3 because under “a common-sense reading of the affidavit . . . the CI’s visual 4 observation supplies [a sufficient] basis of knowledge.” Id. 5 {12} Third, the Court of Appeals rejected the district court’s concern that the 6 affidavit did not include the CI having seen Petitioner selling methamphetamine. Id. 7 ¶ 13. Citing State v. Ramirez, 1980-NMCA-108, ¶¶ 3-4, 95 N.M. 202, 619 P.2d 1246, 8 the Court of Appeals concluded that, “[w]hile this omission may diminish the value 9 of the CI’s basis of knowledge somewhat, . . . the CI’s first-hand observation of 10 [Petitioner] possessing methamphetamine was [nonetheless] sufficient to establish 11 probable cause.” Perea, A-1-CA-38407, mem. op. ¶ 13. 12 {13} Petitioner timely appealed, and we granted certiorari to determine whether the 13 Court of Appeals erred in concluding there was a substantial basis to support a 14 finding of probable cause for the search warrant. 15 II. DISCUSSION 16 A. Standard of Review 17 {14} This Court reviews the issuance of a search warrant under a substantial basis 18 standard. State v. Haidle, 2012-NMSC-033, ¶ 10, 285 P.3d 668. Limiting our review 19 to the four corners of the affidavit, id. ¶ 40, we “must determine whether the affidavit

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1 as a whole, and the reasonable inferences that may be drawn therefrom, provide a 2 substantial basis for determining that there is probable cause,” State v. Williamson, 3 2009-NMSC-039, ¶ 29, 146 N.M. 488, 212 P.3d 376. 4 {15} “The substantial basis standard of review is more deferential than the de novo 5 review applied to questions of law, but less deferential than the substantial evidence 6 standard applied to questions of fact.” State v. Gurule, 2013-NMSC-025, ¶ 16, 303 7 P.3d 838 (brackets, internal quotation marks, and citation omitted). A reviewing 8 court should pay “‘great deference’” to the “‘magistrate’s determination of probable 9 cause,’” Williamson, 2009-NMSC-039, ¶ 17 (quoting Gates, 462 U.S. at 236), and 10 “should not substitute its judgment for that of the issuing court,” id. ¶ 29. “When the 11 factual basis for the warrant is sufficiently detailed in the search warrant affidavit 12 and the issuing court has found probable cause, the reviewing courts should not 13 invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a 14 commonsense, manner.” State v. Price, 2020-NMSC-014, ¶ 13, 470 P.3d 265 15 (internal quotation marks and citation omitted). “This deferential standard of review 16 is appropriate to further the . . . strong preference for searches conducted pursuant 17 to a warrant and to encourage police officers to procure a search warrant.” Gurule, 18 2013-NMSC-025, ¶ 16 (omission in original) (internal quotation marks and citation 19 omitted).

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1 {16} Still, “the substantial basis standard is not tantamount to rubber-stamping the 2 decision of the issuing court and does not preclude the reviewing court from 3 conducting a meaningful analysis of whether the search warrant was supported by 4 probable cause.” Williamson, 2009-NMSC-039, ¶ 30. “While we give deference to 5 a magistrate’s decision, and to an officer’s observations, experience, and training, 6 their conclusions must be objectively reasonable under all the circumstances.” 7 Haidle, 2012-NMSC-033, ¶ 13 (brackets, internal quotation marks, and citation 8 omitted). The requirement for objective reasonableness is “especially important 9 when dealing with the search of a home,” the privacy of which is afforded the highest 10 level of constitutional protection. Id. (internal quotation marks and citation omitted). 11 B. Analysis 12 {17} Article II, Section 10 of the New Mexico Constitution expressly directs that a 13 warrant to search any place shall not issue “without a written showing of probable 14 cause.” In order for an affidavit for search warrant to satisfy the requirement for 15 probable cause, the affidavit “must show: (1) that the items sought to be seized are 16 evidence of a crime; and (2) that the criminal evidence sought is located at the place 17 to be searched.” Price, 2020-NMSC-014, ¶ 14 (internal quotation marks and citation 18 omitted). The written showing of probable cause must be presented by the police to 19 a neutral and detached magistrate or judge and contain sufficient detail to enable the

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1 magistrate or judge to make an independent judgment on whether there is probable 2 cause. Cordova, 1989-NMSC-083, ¶¶ 4-5. 3 {18} In recognition of the foregoing requirements, Rule 5-211(E) requires that 4 probable cause “shall be based on substantial evidence” and that the substantial 5 evidence “may be hearsay in whole or in part, provided there is a substantial basis 6 for believing the source of the hearsay to be credible and for believing that there is 7 a factual basis for the information furnished.” Because there is no dispute the 8 affidavit here satisfies the former “veracity” prong, we only address the latter, the 9 “basis of knowledge” prong of the rule. 10 {19} Petitioner relies on the nonprecedential memorandum opinion Belknap in 11 arguing the Perea Court erred. Petitioner primarily suggests the Court of Appeals 12 erred by not applying the basis-of-knowledge requirements in Belknap, as the 13 affidavits in both cases lacked the same detail: “There is no description of an 14 approximate amount, how it was packaged, or whether the CI ever observed the 15 actual sale of methamphetamine.” Petitioner also relies on these additional 16 requirements in Belknap to challenge the Court of Appeals’ conclusion that “the CI’s 17 first-hand knowledge, alone, is sufficient to satisfy the ‘basis of knowledge’ prong.” 18 Additionally, Petitioner points to the Court of Appeals’ misreading of Belknap as 19 relevant error: that is, the Perea Court did not recognize the probable cause

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1 determination in Belknap was made without consideration that marijuana possession 2 was then legal under certain circumstances. 3 {20} The State argues the Court of Appeals was correct in holding the affidavit 4 satisfied the basis-of-knowledge prong. Asserting personal observations “are 5 generally sufficient to establish a basis of knowledge,” the State claims the affidavit 6 established “the CI gathered information of [Petitioner’s] illegal activity in a reliable 7 way—through first-hand, personal observation inside [Petitioner’s] home.” 8 Challenging the district court’s contrary conclusion under Belknap, the State quotes 9 Cordova for the proposition that “technical requirements of elaborate specificity 10 have no proper place in a court’s evaluation.” 1989-NMSC-083, ¶ 15; see also 11 United States v. Ventresca, 380 U.S. 102, 108 (1965) (“Technical requirements of 12 elaborate specificity once exacted under common law pleadings have no proper 13 place in this area.”). Additionally, the State argues the Court of Appeals correctly 14 distinguished the Belknap affidavit from the affidavit here, pointing to marijuana 15 possession being legal under certain circumstances whereas methamphetamine 16 possession is categorically illegal. 17 {21} We hold the affidavit was sufficient to establish probable cause for the warrant 18 issued in this case and the Court of Appeals did not err in reversing the district court. 19 However, we also determine the Court of Appeals erred in its construal of Belknap

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1 and in its overstatement of the sufficiency of first-hand observation in establishing 2 the basis of knowledge. Because these errors are not fatal to the Court’s otherwise 3 correct analysis, we affirm.

4 1. The Perea Court’s reversal of the grant of the motion to suppress 5 comports with Cordova and State v. Baca, 1982-NMSC-016, 97 N.M. 379, 6 640 P.2d 485

7 {22} We analyze the Perea Court’s memorandum opinion here to determine 8 whether the Court erred in determining the affidavit provided probable cause for the 9 issuing court. The crux of the Court’s analysis is that the basis-of-knowledge 10 requirement of Rule 5-211(E) can be satisfied by first-hand observations and was 11 satisfied in this case by the CI’s first-hand observation of methamphetamine at 12 Petitioner’s residence. See Perea, A-1-CA-38407, mem. op. ¶ 8. This analysis is 13 sound under Cordova and Baca. 14 {23} Cordova relevantly analyzed and applied the Aguilar-Spinelli basis-of- 15 knowledge prong set forth in Rule 5-211(E). Cordova, 1989-NMSC-083, ¶¶ 17-25; 16 see id. ¶ 6 (“Although an affidavit may be based wholly or in part on hearsay 17 provided by an unnamed informant, ‘the magistrate must be informed of some of the 18 underlying circumstances from which the informant concluded that the facts were 19 as he claimed they were.’” (emphasis added) (brackets omitted) (quoting Aguilar, 20 378 U.S. at 114)). First, citing Aguilar’s analysis of the insufficient affidavit in that

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1 case, the Cordova Court illustrated that the basis-of-knowledge prong is not satisfied 2 by mere assurances or conclusory statements. See id. ¶ 7 (“[T]he [Aguilar] Court 3 held an affidavit to be insufficient to support a search warrant when it stated simply 4 that ‘Affiants have received reliable information from a credible person and do 5 believe’ that illegal drugs and paraphernalia were being kept at a particular 6 residence.”). This proposition is well established in our caselaw. See id. ¶ 23; see 7 also Baca, 1982-NMSC-016, ¶ 16 (“The most that may be ascertained from the 8 affidavit is that the informant stated that he had ‘first hand personal knowledge’ of 9 the information he provided to the affiant. This is insufficient.” (emphasis added) 10 (citation omitted)). In contrast, the CI’s first-hand observations here—“within the 11 last 72 hours a quantity of [m]ethamphetamine seen by the CI consistent with 12 trafficking has been seen by the CI at [Petitioner’s residence]”—provide specific 13 circumstances from which the issuing magistrate could conclude a sound factual 14 basis for the allegations of wrongdoing in the affidavit. 15 {24} Second, citing Spinelli and United States v. Draper, 358 U.S. 307 (1959), the 16 Cordova Court implicitly affirmed that personal knowledge, including through first- 17 hand observation, may be sufficient to satisfy the basis-of-knowledge prong, 18 including where the affidavit contains “self-verifying” detail. See Cordova, 1989- 19 NMSC-083, ¶ 9 (“[E]ven when an affidavit does not affirmatively state an

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1 informant’s basis of knowledge, it may be inferred that an informant who otherwise 2 is known to be credible obtained the information set forth in the affidavit in a reliable 3 fashion if the tip contains enough detail to be self-verifying.” (citing Spinelli, 393 4 U.S. at 417)); id. ¶ 9 n.3 (citing Draper). Cordova illustrated self-verifying detail as 5 “of a kind that generally would have been known only by someone intimately 6 connected” with the wrongdoing alleged in an informant’s tip. 1989-NMSC-083, ¶ 7 9 & n.3. 8 {25} As explained in Spinelli, such detail allows a magistrate to “know that he is 9 relying on something more substantial than a casual rumor circulating in the 10 underworld or an accusation based merely on an individual’s general reputation.” 11 393 U.S. at 416. As “a suitable benchmark,” the Spinelli Court pointed to Draper, 12 in which the informant’s specificity of detail regarding the defendant’s criminal 13 scheme, appearance, and schedule created a reasonable basis for concluding that his 14 information was based on personal knowledge. Id. at 416-17 (“A magistrate, when 15 confronted with such detail, could reasonably infer that the informant had gained his 16 information in a reliable way.”); see Cordova, 1989-NMSC-083, ¶ 9 n.3 (“By 17 analogy, the Spinelli Court posited that a magistrate confronted with the tip 18 considered in Draper could have concluded that the tip was based on personal 19 knowledge without an affirmative statement to that effect.”).

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1 {26} Importantly, Spinelli requires assurance that the information in an affidavit 2 was “obtained . . . in a reliable fashion,” which may be confirmed through sufficient 3 detail establishing personal knowledge. Cordova, 1989-NMSC-083, ¶ 9. In other 4 words, the detail in Draper confirmed the informant’s claims were reliable based on 5 his personal knowledge rather than on rumor or reputation. It follows that an issuing 6 court may find a sufficient basis of knowledge for a search warrant when sufficient 7 detail confirms a CI’s personal knowledge. The affidavit in Cordova provides a 8 contrasting example, wherein the CI provided specific detail describing a suspect 9 from out of town, his car, and the house the suspect purportedly was visiting, but 10 none of that detail could verify the alleged heroin possession. 1989-NMSC-083, ¶¶ 11 2, 24-25 (“[T]he affidavit in essence asked the magistrate to believe the informant 12 was reliable merely because the house and car existed, and further asked the 13 magistrate to believe that because the house and car existed, the man and the heroin 14 probably did as well.”). The Cordova Court accordingly held the affidavit did not 15 establish a substantial basis of knowledge under Rule 5-211(E). Id. ¶ 25. 16 {27} As cited in Cordova, Baca supports that first-hand observation alone can 17 constitute a substantial basis for a CI’s knowledge to establish probable cause. See 18 id. ¶ 9 (citing Baca, 1982-NMSC-016, ¶ 18 (citing Spinelli)). As in Cordova, the 19 affidavit in Baca lacked detail of criminal activity to establish a basis of knowledge

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1 for the CI’s assertion that criminal activity was afoot. Baca, 1982-NMSC-016, ¶ 18 2 (“All that is stated by the informant describes innocent activity.”); id. ¶ 19 (same) 3 (citing Draper). However, in the course of its analysis, the Baca Court highlighted 4 the role first-hand observation can play in satisfying the basis-of-knowledge 5 requirement:

6 In order to assist the judge in making [a probable cause] determination, 7 it is necessary that the affidavit provide a factual basis for the 8 informant’s personal knowledge, such as observations or dealings with 9 the defendant. . . . A judge cannot ascertain from a reading of the 10 affidavit [in Baca] whether the informant knows the parties named in 11 the affidavit, has actually seen the defendant carry a .32 caliber pistol, 12 drive the Chevrolet, or whether the informant bases his information on 13 mere hearsay or rumor.

14 Id. ¶¶ 16-17 (emphasis added). 15 {28} We read the foregoing analysis in Cordova and Baca to support the essential 16 legal premise relied on by the Court of Appeals in this case: first-hand observation 17 can provide substantial evidence to satisfy the basis-of-knowledge prong in Rule 5- 18 211(E). Stated more broadly, Cordova and Baca support the proposition that a 19 sufficient basis of knowledge for probable cause can be established through different 20 forms of “personal knowledge, [including first-hand] observations.” Baca, 1982- 21 NMSC-016, ¶ 16. 22 {29} Applying this proposition to the facts, we determine the Court of Appeals in 23 Perea did not err in concluding substantial evidence supported the magistrate court’s

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1 finding of probable cause. The Court of Appeals properly relied on the affidavit, 2 which “state[d], in pertinent part, that ‘within the last 72 hours, a quantity of 3 [m]ethamphetamine seen by the CI consistent with trafficking has been seen by the 4 CI at [a residence], which is being handled by [Petitioner]’ and that ‘[Petitioner] 5 keeps a continuous supply of illicit narcotics at her residence and on her person[] at 6 all times.’” Perea, A-1-CA-38407, mem. op. ¶ 8 (second and third alterations in 7 original). In combination with the CI’s credibility, the affidavit identified that the CI 8 personally observed an illegal substance, in quantities sufficient to indicate illegal 9 activity, and therefore provided sufficient factual detail from which the magistrate 10 court could reasonably infer “probable cause to believe that a search [would] 11 uncover evidence of wrongdoing.” Williamson, 2009-NMSC-039, ¶ 29; see id. ¶ 17 12 (“[T]he Fourth Amendment [to the United States Constitution] requires no more.”). 13 {30} Additionally, our recognition of the potential sufficiency of first-hand 14 observation in basis-of-knowledge analysis under Rule 5-211(E) comports with 15 relevant interests articulated in our probable cause jurisprudence. As Cordova 16 recited,

17 [O]n issues of probable cause to support a warrant: “(1) only a 18 probability of criminal conduct need be shown; (2) there need be less 19 vigorous proof than the rules of evidence require to determine guilt of 20 an offense; (3) common sense should control; and (4) great deference 21 should be shown by courts to a magistrate’s determination of probable 22 cause.”

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1 1989-NMSC-083, ¶ 15 (citation omitted). We have also quoted the United States 2 Supreme Court regarding the “‘practical and not abstract’” requirements of the 3 Fourth Amendment for affidavits to show probable cause in support of a search 4 warrant, which are equally relevant to Article II, Section 10: “‘[A]ffidavits for search 5 warrants . . . must be tested and interpreted by magistrates and courts in a 6 commonsense and realistic fashion. . . . A grudging or negative attitude by reviewing 7 courts toward warrants will tend to discourage police officers from submitting their 8 evidence to a judicial officer before acting.’” State v. Snedeker, 1982-NMSC-085, ¶ 9 23, 99 N.M. 286, 657 P.2d 613 (second omission in original) (quoting Ventresca, 10 380 U.S. at 108); cf. Gurule, 2013-NMSC-025, ¶ 16 (“In situations that present 11 doubtful or marginal cases of probable cause, the reviewing court should resolve the 12 issue by giving preference to the warrant.”). The foregoing demonstrates, contrary 13 to the dissent’s concluding assertions, that the affidavit here “contain[ed] sufficient 14 facts to enable the issuing magistrate independently to pass judgment on the 15 existence of probable cause.” Cordova, 1989-NMSC-083, ¶ 5. 16 {31} The dissent, while conceding the CI’s first-hand observations established a 17 sufficient basis of knowledge for possession of methamphetamine, asserts the 18 affidavit is nonetheless insufficient to establish probable cause because law 19 enforcement sought a search warrant for trafficking. This position ignores the

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1 standard articulated in Williamson and Gates requiring that the issuing “‘magistrate 2 had a substantial basis for concluding that a search would uncover evidence of 3 wrongdoing,’” not of a particular crime. Williamson, 2009-NMSC-039, ¶ 17 4 (emphasis added) (ellipsis and brackets omitted) (quoting Gates, 462 U.S. at 236). 5 Despite the dissent’s insistence that we must reach the issue of the affidavit’s 6 sufficiency as to trafficking, “‘the Fourth Amendment requires no more’” than such 7 evidence of wrongdoing. Id. (quoting Gates, 462 U.S. at 236). To be clear, because 8 the affidavit provides a sufficient basis of knowledge for concluding a search would 9 uncover evidence of a crime—in this case, possession of methamphetamine—we 10 need not analyze whether the affidavit also provided a basis of knowledge for an 11 additional crime. Because the dissent misstates our holding—characterizing that 12 “probable cause for crime X automatically equates to probable cause for crime Y”— 13 we reiterate that our review of the issuing court’s judgment does not reach the issue 14 of whether the affidavit satisfies the basis-of-knowledge prong for trafficking. 15 {32} Invoking the New Mexico Constitution, the dissent cites inapposite and 16 nonbinding cases to suggest that the affidavit’s purported failure as to trafficking 17 renders the warrant unconstitutional. However, none of the cited precedential cases 18 address a situation on point to the dissent’s implicit assertion here—that an affidavit 19 is unconstitutional when insufficiently particular for a broader claim of wrongdoing

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1 while sufficiently particular for a narrower and obviously included claim of 2 wrongdoing. See Haidle, 2012-NMSC-033, ¶ 36 (concerning a search warrant 3 seeking evidence “of a murder”); Williamson, 2009-NMSC-039, ¶ 35 (concerning a 4 search warrant for a package suspected to contain illegal narcotics); see also State v. 5 Sabeerin, 2014-NMCA-110, ¶ 26, 336 P.3d 990 (ruling an affidavit insufficiently 6 particular in seeking “any and all evidence which may lead investigators to the 7 offender(s) and or possible witnesses in this case”); State v. Jones, 1988-NMCA- 8 058, ¶ 7, 107 N.M. 503, 760 P.2d 796 (ruling an affidavit provided probable cause 9 for seizure of defendant’s business records as evidence of receiving stolen property). 10 To highlight the distinction, we reiterate the obvious here: as presented through the 11 CI’s first-hand observations, the affidavit’s claims regarding trafficking necessarily 12 included possession of methamphetamine, which substance was specified among the 13 items to be seized and searched for under the warrant.2 14 {33} The dissent further cites Gurule, 2013-NMSC-025, ¶ 15, and United States v. 15 Galpin, 720 F.3d 436, 445-46 (2d Cir. 2013), to support that, “because the agent in 16 this case was seeking a search warrant for trafficking, the warrant had to show

Regarding methamphetamine being a specified item to be seized and

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searched for under the warrant, the dissent raises an overbreadth argument that we note was never raised by the parties.

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1 probable cause for trafficking.” Dissent ¶¶ 54-55. However, the cited paragraph in 2 Gurule quotes a treatise, not our constitution, and says nothing supporting the 3 dissent’s heightened requirement. To the contrary, the affidavit here satisfies Gurule 4 by establishing a “nexus” between criminal activity of methamphetamine 5 possession, things to be seized including methamphetamine, and the place to be 6 searched of Petitioner’s residence, all directly supported by the CI’s first-hand 7 observations. See Gurule, 2013-NMSC-025, ¶ 15. As for Galpin, the Second Circuit 8 stated that “a warrant must identify the specific offense for which the police have 9 established probable cause” as a component of preventing “[t]he chief evil that 10 prompted the framing and adoption of the Fourth Amendment”: “indiscriminate 11 searches and seizures.” 720 F.3d at 445 (internal quotation marks and citation 12 omitted). To illustrate the value of this component, the Galpin Court cited cases 13 wherein a warrant “made no mention of any criminal statute or criminal conduct” 14 and an overbroad warrant simply sought “evidence relating to the commission of a 15 crime.” Id. (internal quotation marks and citation omitted). In contrast here, the 16 affidavit established a basis of criminal activity that was sufficiently particular— 17 including methamphetamine to be seized—to assuage Galpin’s concern regarding 18 general and indiscriminate searches. Contrary to the dissent’s suggestion, these cases 19 do not demonstrate that our constitution requires a neutral and detached magistrate

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1 to ignore sufficient evidence for probable cause of methamphetamine possession in 2 an affidavit seeking a warrant for methamphetamine trafficking. 3 {34} Because here “the factual basis for the warrant is sufficiently detailed in the 4 search warrant affidavit and the issuing court has found probable cause,” we 5 consider the dissent’s heightened standard to “interpret[] the affidavit in a 6 hypertechnical, rather than a commonsense, manner,” as prohibited by Price, 2020- 7 NMSC-014, ¶ 13 (internal quotation marks and citation omitted). Under a 8 commonsense reading of the affidavit, the CI’s first-hand observations established 9 sufficient detail of personal knowledge to support the magistrate’s determination of 10 probable cause. Accordingly, we affirm the Court of Appeals in reversing the district 11 court.

12 2. The Perea Court’s overstatement regarding first-hand observation does 13 not render its ruling infirm

14 {35} Notwithstanding our holding, we note the Court of Appeals presented its legal 15 premise, which we have just discussed, in terms that suggest a categorical rule: “It 16 is well-established that first-hand observations satisfy the basis of knowledge 17 requirement.” Perea, A-1-CA-38407, mem. op. ¶ 8. While the CI’s first-hand 18 observations were sufficient here, we clarify that neither our affirmance nor the cases 19 cited by the Court of Appeals in this context should be read to support that such 20 observations always or automatically satisfy the basis-of-knowledge prong.

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1 {36} The Court of Appeals in Perea cited its own precedent as relevant support. Id. 2 ¶¶ 8, 13 (citing State v. Barker, 1992-NMCA-117, ¶ 5, 114 N.M. 589, 844 P.2d 839; 3 State v. Lujan, 1998-NMCA-032, ¶ 12, 124 N.M. 494, 953 P.2d 29; Ramirez, 1980- 4 NMCA-108, ¶¶ 3-4). In Barker, the Court of Appeals considered an affidavit stating 5 the CI “while at this residence did observe first hand the defendant selling 6 marihuana” and otherwise “witnessed drugs being sold at that location.” 1992- 7 NMCA-117, ¶ 2. The Barker Court concluded the affidavit contained an adequate 8 basis of knowledge to support the search warrant, stating, “First-hand observations 9 by the informant serve to meet the ‘basis of knowledge’ prong of the Cordova test.” 10 Id. ¶ 5 (citation omitted). Similarly in Lujan, the Court of Appeals determined, under 11 “a common-sense reading of the affidavit,” that the CI’s description of the controlled 12 buy therein included critical facts either seen by the CI or corroborated by the affiant 13 police officer, facts from which the issuing court could “infer sufficient first-hand 14 knowledge.” 1998-NMCA-032, ¶ 12 (“[T]he informant entered the residence with 15 some money and no drugs and came out of the residence a few minutes later with 16 drugs and no money.”). Similarly in Ramirez, the Court of Appeals found the 17 affidavit there satisfied the basis-of-knowledge prong through the CI’s “personal 18 observation” of the defendant being in possession of heroin. 1980-NMCA-108, ¶ 4

24

1 (“The statement in the affidavit that the informant saw the defendant in possession 2 of heroin was sufficient to satisfy the first prong of the Aguilar test.”). 3 {37} We approve the use of first-hand-observation evidence in these cases in 4 analyzing the basis-of-knowledge requirement in Rule 5-211(E). We reiterate, 5 however, that they do not establish a per se rule, as “[t]here are no ‘bright-line, hard- 6 and-fast rules’ for determining probable cause.” State v. Evans, 2009-NMSC-027, ¶ 7 11, 146 N.M. 319, 210 P.3d 216 (citation omitted); see, e.g., State v. Whitley, 1999- 8 NMCA-155, ¶ 3, 128 N.M. 403, 993 P.2d 117 (concluding, notwithstanding first- 9 hand-observation evidence, that “the affidavit did not contain sufficient information 10 of ongoing criminal activities and the information was therefore stale”). To the 11 contrary, we have clearly expressed above our recognition of the potential 12 sufficiency of personal knowledge of wrongdoing, including through first-hand 13 observation, in basis-of-knowledge analysis.

14 3. The Perea Court’s misreading of Belknap does not render its ruling 15 infirm

16 {38} Attempting to distinguish Belknap, the Perea Court stated that, because the 17 Belknap informant’s first-hand observation pertained to marijuana, that observation 18 “was inadequate to establish probable cause because marijuana at that time could be 19 legally possessed in certain limited circumstances.” Perea, A-1-CA-38407, mem. 20 op. ¶ 10. The Perea Court attempted to establish a contrast here, noting “mere

25

1 possession of methamphetamine is categorically prohibited in New Mexico.” Id. ¶ 2 11. However, the Belknap Court made clear its probable cause analysis was made 3 without regard to the materiality of defendant’s valid medical marijuana card 4 registration, the basis in 2017 under which marijuana possession could be legal. See 5 Belknap, A-1-CA-35195, mem. op. ¶¶ 7, 16. 6 {39} Petitioner attempts to cast this error as a basis for reversal, suggesting the 7 Perea Court’s analysis additionally erred in not meeting the legal standard set by 8 Belknap. This argument does not avail. 9 {40} First, Belknap is a nonprecedential memorandum opinion. Accordingly, the 10 district court and the Court of Appeals were not bound by its reasoning and need not 11 have distinguished it in evaluating the affidavit at issue here. See Rule 12-405(A) 12 NMRA; N.M. Uninsured Emps.’ Fund v. Gallegos, 2017-NMCA-044, ¶ 18 n.3, 395 13 P.3d 533 (stating that “unpublished memorandum opinions are not controlling 14 authority, and we need not distinguish nonprecedential cases”). 15 {41} Second, the Perea Court’s misreading of Belknap was not part of the Court’s 16 analysis underlying its holding. Instead, the Perea Court attempted to distinguish 17 that case merely in the course of refuting Petitioner’s misplaced use of Belknap as 18 legal authority. See Perea, A-1-CA-38407, mem. op. ¶¶ 9-11 (“[I]n this case, it was 19 not necessary to demonstrate probable cause to believe [Petitioner] was engaged in

26

1 the distribution of methamphetamine; possession was enough.”). We also note that 2 Petitioner, while attempting to tether the proposition of Belknap to Cordova and 3 Baca, does not actually cite those precedential cases as requiring detail of 4 wrongdoing beyond first-hand observation. As we have established to the contrary, 5 Cordova and Baca support affirmance here. Consequently, Petitioner relies on 6 Belknap alone for this argument, which does not avail. 7 {42} In sum, the Court of Appeals’ misreading of Belknap is not fatal to its holding. 8 III. CONCLUSION 9 {43} For the reasons given, the Court of Appeals’ reversal of the district court’s 10 grant of the motion to suppress is affirmed. 11 {44} IT IS SO ORDERED.

12 13 C. SHANNON BACON, Justice

27

1 WE CONCUR:

2 3 DAVID K. THOMSON, Chief Justice

4 5 BRIANA H. ZAMORA, Justice

6 7 CINDY LEOS, Judge 8 Sitting by designation

9 MICHAEL E. VIGIL, Justice, dissenting

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1 VIGIL, Justice (dissenting). 2 {45} Probable cause must be “based on substantial evidence, which may be hearsay 3 in whole or in part, provided there is a substantial basis for believing the source of 4 the hearsay to be credible and for believing that there is a factual basis for the 5 information furnished.” Rule 5-211(E) NMRA. Our rule codifies the requirements 6 of Aguilar v. State of Texas, 378 U.S. 108 (1964) (abrogated by Illinois v. Gates, 7 462 U.S. 213, 238 (1983)), and Spinelli v. United States, 393 U.S. 410 (1969) (same 8 abrogation), which are constitutionally required for a valid search warrant under 9 Article II, Section 10 of the New Mexico Constitution. State v. Cordova, 1989- 10 NMSC-083, ¶¶ 3, 17, 109 N.M. 211, 784 P.2d 30 (adopting, as a matter of state 11 constitutional law, the Aguilar-Spinelli confidential informant test). 12 {46} The affidavit in this case, which secured a search warrant for trafficking, 13 recites that the agent learned from the confidential informant (CI) “that within the 14 last 72 hours, a quantity of Methamphetamine seen by the CI consistent with 15 trafficking has been seen by the CI” at a home “which is being handled by 16 [Defendant-Petitioner Michelle Perea].” (Emphasis added.) The majority holds this 17 satisfies the probable cause requirements under Article II, Section 10 of the New 18 Mexico Constitution. I disagree and, therefore, dissent.

29

1 {47} The majority overlooks that the affidavit merely sets forth a conclusion or 2 opinion that the quantity of methamphetamine the CI saw is “consistent with 3 trafficking.” More than this is constitutionally required. Cordova, 1989-NMSC-083, 4 ¶ 6 (affirming that the affidavit must contain “sufficient detail” for the issuing judge 5 to make an independent determination of probable cause); see State v. Lujan, 1998- 6 NMCA-032, ¶¶ 2, 9, 124 N.M. 494, 953 P.2d 29 (stating the magistrate “would have 7 been correct to deny” the issuance of a warrant based on a CI’s statement that an 8 individual was “trafficking in heroin” at the described premises had there been no 9 controlled buy of heroin by the CI). The affidavit here is totally devoid of any facts 10 whatsoever to establish a substantial basis for believing that “a quantity of 11 [m]ethamphetamine . . . consistent with trafficking” was seen by the CI within the 12 past seventy-two hours. The CI’s conclusion or opinion is not supported by stating 13 any of the conditions under which the CI saw methamphetamine, the circumstances 14 in which the methamphetamine was seen, the amount of methamphetamine, how the 15 methamphetamine was packaged, if at all, whether there was any paraphernalia used 16 in the packaging and sale of methamphetamine, what the CI saw to say that the 17 methamphetamine was “being handled” by Petitioner, or any other details. 18 Moreover, the affidavit is not even clear on whose conclusion or opinion is being 19 expressed. It could be the affiant’s, based on what the CI told them they saw, or it

30

1 could be the CI’s own conclusion or opinion. We just do not know because the 2 affidavit does not tell us. 3 {48} The affidavit adds that the “Affiant knows the CI is familiar with what 4 [m]ethamphetamine looks like [and] how it is packaged and sold.” Even assuming 5 this familiarity, however, it adds nothing to the bald conclusion or opinion that there 6 is trafficking of methamphetamine without any supporting facts. This completely 7 fails to satisfy what our constitution requires. See Cordova, 1989-NMSC-083, ¶¶ 21- 8 22 (stating that the magistrate was presented with nothing more than a bald, 9 unsupported conclusion, lacking any detail). Moreover, the factually unsupported 10 assertion by the CI set forth in the affidavit that Petitioner “keeps a continuous 11 supply of illicit narcotics at her residence and on her persons at all times” is clearly 12 entitled to no weight in establishing probable cause. See id. ¶ 22. 13 {49} I agree that the CI’s observation of Petitioner in possession of 14 methamphetamine at the house noted is sufficient to support a search warrant for 15 possession. But that is not what happened here. The affidavit asked for a search 16 warrant for trafficking. These are separate crimes with differing elements and

31

1 penalties.3 The affidavit attempts to set forth probable cause to believe Petitioner 2 was in possession of methamphetamine with an intent to distribute it, which is one 3 way to commit trafficking. NMSA 1978, § 30-31-20(A)(3) (2006). However, it is 4 well-settled that the illegal possession of methamphetamine alone is insufficient for 5 trafficking. State v. Moreno, 1961-NMSC-070, ¶ 2, 69 N.M. 113, 364 P.2d 594. The 6 amount possessed must be inconsistent with personal use. State v. Becerra, 1991- 7 NMCA-090, ¶¶ 22-23, 112 N.M. 604, 817 P.2d 1246. In recognition of these 8 requirements, the affidavit states that the quantity of methamphetamine seen by the 9 CI is “consistent with trafficking.” The affidavit establishes that the CI saw a 10 quantity of methamphetamine, but the assertion that the quantity is “consistent with 11 trafficking” has no factual support whatsoever. It is nothing more than the CI’s bald, 12 factually unsupported conclusion or opinion. And it fails to satisfy the constitutional 13 requirement for a search warrant to be issued under the New Mexico Constitution as 14 required by Rule 5-211(E).

3

Possession of methamphetamine is a fourth-degree felony with a penalty of eighteen months imprisonment, and trafficking methamphetamine is a seconddegree felony with a penalty of nine years imprisonment. NMSA 1978, § 30-31-

23(E) (2011) (controlled substances; possession prohibited); NMSA 1978, § 30-31-

20(B)(1) (2006) (trafficking controlled substances; violation); NMSA 1978, § 31-

18-15 (2016) (sentencing authority; noncapital felonies).

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1 {50} I am not talking about a mere technicality but conformance with the New 2 Mexico Constitution. Our constitution is specific in directing, “no warrant to search 3 any place, or seize any . . . thing, shall issue without describing the . . . things to be 4 seized, nor without a written showing of probable cause.” N.M. Const. art. II, § 10. 5 The Fourth Amendment to the United States Constitution similarly directs, “no 6 [w]arrants shall issue, but upon probable cause . . . particularly describing . . . the 7 things to be seized.” I begin with the requirement that a warrant must describe the 8 things to be seized—the “particularity requirement” of both constitutions. 9 {51} The purpose of the particularity requirement is to make general searches 10 impossible. “The problem posed by the general warrant is not that of intrusion Per 11 se, but of a general, exploratory rummaging of a person’s belongings. The Fourth 12 Amendment addresses the problem by requiring a particular description of the things 13 to be seized.” Andresen v. Maryland, 427 U.S. 463, 480 (1976) (brackets, ellipsis, 14 internal quotation marks, and citation omitted). The same purpose is served under 15 the New Mexico Constitution. State v. Hamilton, 2012-NMCA-115, ¶ 13, 290 P.3d 16 271 (“A valid search warrant must state with particularity . . . the things to be 17 seized.”). There is no debate on this point. 18 {52} However, the question remains: What principle determines the particular 19 things that a search warrant may constitutionally authorize the police to seize? The

33

1 answer lies in the scope of probable cause established in the affidavit for the search 2 warrant. Maryland v. Garrison explains: “The manifest purpose of this particularity 3 requirement was to prevent general searches. By limiting the authorization to search 4 to the specific . . . things for which there is probable cause to search, the requirement 5 ensures that the search will be carefully tailored to its justifications, and will not take 6 on the character of the wide-ranging exploratory searches the Framers intended to 7 prohibit.” 480 U.S. 79, 84 (1987); see Andresen, 427 U.S. at 480 n.10 (declaring that 8 the particularity requirement is satisfied “when the State has demonstrated probable 9 cause to believe that a crime has been committed and probable cause to believe that 10 evidence of this crime is in the suspect’s possession” (emphasis added)). 11 {53} This principle—that a search must be confined in scope for evidence related 12 to the specific crime for which the affidavit demonstrates probable cause—is 13 required by the New Mexico Constitution. State v. Haidle, 2012-NMSC-033, ¶ 36, 14 285 P.3d 668 (concluding that the “nonhearsay content of the affidavit” for a search 15 warrant “fails to provide the substantial evidence required for the magistrate to find 16 probable cause that evidence of a murder was located in [the d]efendant’s home”); 17 State v. Williamson, 2009-NMSC-039, ¶ 35, 146 N.M. 488, 212 P.3d 376 (affirming 18 an issuing court’s finding of probable cause because the facts alleged in the affidavit 19 for search warrant were sufficient “to support a reasonable inference that the package

34

1 contained illegal narcotics”); State v. Sabeerin, 2014-NMCA-110, ¶ 26, 336 P.3d 2 990 (requiring the search warrant to be confined to the crime for which probable 3 cause is demonstrated); State v. Jones, 1988-NMCA-058, ¶ 7, 107 N.M. 503, 760 4 P.2d 796 (“[T]he affidavit provided probable cause to believe defendant had 5 committed the crime of receiving stolen property.”); see also State v. Van Osdol, 6 417 P.3d 488, 492 (Or. Ct. App. 2018) (“The facts of the affidavit must therefore 7 establish a nexus between three things: (1) that a crime has been, or is currently 8 being, committed, and that (2) evidence of that crime (3) will be found in the place 9 to be searched.” (emphasis added)); Voss v. Bergsgaard, 774 F.2d 402, 404 (10th 10 Cir. 1985) (“The particularity requirement ensures that a search is confined in scope 11 to particularly described evidence relating to a specific crime for which there is 12 demonstrated probable cause.” (emphasis added)). 13 {54} In recognition of the foregoing requirements, it is well established that within 14 the four corners of the affidavit, “there must be a sufficient nexus between (1) the 15 criminal activity, and (2) the things to be seized, and (3) the place to be searched.” 16 State v. Gurule, 2013-NMSC-025, ¶ 15, 303 P.3d 838 (internal quotation marks and 17 citation omitted). One court succinctly describes the required nexus this way: “First, 18 a warrant must identify the specific offense for which the police have established 19 probable cause. Second, a warrant must describe the place to be searched. Third, the

35

1 warrant must specify the items to be seized by their relation to designated crimes.” 2 United States v. Galpin, 720 F.3d 436, 445-46 (2d Cir. 2013) (emphasis added) 3 (footnote omitted) (internal quotation marks and citations omitted). 4 {55} In other words, because the agent in this case was seeking a search warrant 5 for trafficking, the warrant had to show probable cause for trafficking. Probable 6 cause for possession alone does not equate to probable cause for trafficking. See 7 State v. Nyce, 2006-NMSC-026, ¶ 19, 139 N.M. 647, 137 P.3d 587 (“When officers 8 believe controlled substances are being manufactured in a residence, there must be 9 a sufficient nexus in the affidavit between the activities observed and the officers’ 10 belief that manufacture is occurring at that home.”), limited on other grounds by 11 Williamson, 2009-NMSC-039, ¶ 29 & n.1. The majority concludes, without citing 12 any authority on point, that probable cause for possession by itself equates to 13 probable cause to search for evidence of trafficking. For me to agree with this 14 conclusion, I would have to ignore the foregoing points and authorities. 15 {56} The majority suggests that because the CI saw an unspecified quantity of 16 methamphetamine at Petitioner’s home in the past seventy-two hours, and the 17 warrant authorized the seizure of methamphetamine, it is not overly broad. Maj. op. 18 ¶¶ 29-33. This overlooks what else the warrant authorized the police to seize. The 19 search warrant authorized the officers to search for and seize “any drug or substance

36

1 listed in the New Mexico Controlled Substance act”; virtually any and all evidence 2 that is actually or potentially drug paraphernalia; any items used for “distribution or 3 manufacturing of illicit substances”; any and all evidence “indicating past sales of 4 narcotics”; safes, lockboxes, computers, and electronic storage media showing 5 evidence of “use, possession or distribution of controlled substances”; any and all 6 firearms; any and all vehicles; property suspected or verified to be stolen; and all 7 telephones, pagers, and cellular telephones, as well as answering any calls on those 8 devices seized while executing the warrant and previewing at the scene all caller 9 information, text messages, and incoming and outgoing caller information. The 10 excessive scope, based solely on possession of an unknown quantity of 11 methamphetamine, is startling. Again, to establish probable cause that 12 methamphetamine is in a home does not by itself establish probable cause that 13 trafficking is being conducted from that home. 14 {57} Finally, I come to my last point. Article II, Section 10 of the New Mexico 15 Constitution strongly favors the warrant process, which “requires law enforcement 16 officials to make a showing of probable cause before a neutral and detached 17 magistrate in order to obtain a search warrant.” Cordova, 1989-NMSC-083, ¶ 4 18 (internal quotation marks and citation omitted). The point of this requirement and 19 the protection it affords “is not [to deny] law enforcement the support of the usual

37

1 inferences which reasonable men draw from evidence. Its protection consists in 2 requiring that those inferences be drawn by a neutral and detached magistrate instead 3 of being judged by the officer engaged in the often competitive enterprise of ferreting 4 out crime.” Aguilar, 378 U.S. at 111 (internal quotation marks and citation omitted); 5 Cordova, 1989-NMSC-083, ¶ 4 (quoting and adopting this language as applied to 6 Article II, Section 10 of the New Mexico Constitution). This constitutionally 7 mandated role of judges “requires them to make an informed and deliberate 8 determination whether probable cause exists. Accordingly, when an application for 9 a search warrant is based on an affidavit, the affidavit must contain sufficient facts 10 to enable the issuing magistrate independently to pass judgment on the existence of 11 probable cause.” Cordova, 1989-NMSC-083, ¶ 5 (emphasis added) (internal 12 quotation marks and citations omitted). 13 {58} The majority holds that probable cause for crime X automatically equates to 14 probable cause for crime Y. Therefore, a warrant which allows for the search and 15 seizure of evidence for Crime Y, for which there is admittedly no probable cause, is 16 valid under the Fourth Amendment and the New Mexico Constitution. This is a 17 startling conclusion to me, and, in my opinion, not consistent with either the Fourth 18 Amendment or the New Mexico Constitution. New Mexico adopted and continued 19 to follow the Aguilar-Spinelli requirements to provide greater protections than those

38

1 afforded under the Fourth Amendment. I am afraid the holding in this case goes in 2 the opposite direction. 3 {59} In addition, the majority opinion holds that the unsubstantiated, unsupported 4 conclusion or opinion of an unnamed informant to replace the informed judgment of 5 an independent judge in deciding whether the quantity of methamphetamine that the 6 informant saw is “consistent with trafficking.” All the issuing judge needs to do is 7 rubber stamp the unnamed confidential informant’s conclusion or opinion, and that 8 is sufficient. 9 {60} I do not agree that either result is permissible under the New Mexico 10 Constitution. I therefore dissent.

11 12 MICHAEL E. VIGIL, Justice