State v. Planche-Marron

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellant, 4 v. NO. 31,891 5 ADONIS PLANCHE-MARRON, 6 Defendant-Appellee,

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Robert Schwartz, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM 11 Jacqueline R. Medina, Assistant Attorney General 12 Albuquerque, NM

13 for Appellant

14 Bennett J. Baur, Acting Chief Public Defender 15 Will O’Connell, Assistant Appellate Defender 16 Santa Fe, NM

17 for Appellee 18 MEMORANDUM OPINION 19 VIGIL, Judge.

1 {1} The State appeals the suppression of evidence obtained in the course of a 2 search. The district court determined that the affidavit submitted in support of the 3 warrant did not establish probable cause. For the reasons that follow, we reverse. 4 BACKGROUND 5 {2} On April 7, 2008, Detective Meek from the Special Investigations Division, 6 Narcotics Unit of the Albuquerque Police Department (Affiant), prepared an affidavit 7 seeking a warrant to search Defendant’s apartment. The affidavit specified as follows. 8 {3} Affiant had been contacted by a confidential informant (the CI). The CI stated 9 that it had recently purchased crack cocaine from a Cuban male known as “Adonys” 10 who distributed from 3853 Montgomery NE, # 1007. The CI advised that it had 11 purchased crack cocaine on past occasions up to and including within the last ten days, 12 and further indicated that it could contact “Adonys” for purposes of ordering and 13 purchasing crack cocaine. Affiant noted that the CI had proven itself knowledgeable 14 about the possession, consumption, and distribution of controlled substances and that 15 the CI had “proven to be reliable.” 16 {4} Affiant subsequently utilized the CI to conduct a controlled purchase of crack 17 cocaine from “Adonys” at the specified location. Within 72 hours prior to the 18 preparation of the affidavit, Affiant and another detective met with the CI at a 19 predetermined location, where the CI was searched for controlled substances and

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1 currency. After finding neither, Affiant gave the CI a predetermined amount of 2 currency and instructed the CI to purchase a specific amount of crack cocaine. 3 Constant surveillance of the CI was maintained by the detectives. The CI “was viewed 4 to make contact at 3853 Montgomery NE #1007,” where it entered the residence. One 5 to five minutes later, the CI exited the residence and proceeded directly to the 6 predetermined, end location, where it handed Affiant a rock-like substance which 7 proved to be crack cocaine. The CI told Affiant that the crack cocaine was purchased 8 from “Adonys.” When the CI was subsequently shown a photograph of Defendant, the 9 CI positively identified him as the “Adonys” from whom he had purchased the crack 10 cocaine. 11 {5} Upon consideration of the foregoing information, a judge issued the requested 12 search warrant. When officers subsequently executed the warrant they found and 13 seized a variety of incriminating items from Defendant’s residence. The underlying 14 charges were filed against Defendant in due course. 15 {6} Defendant moved to suppress all of the evidence seized in the course of the 16 search on grounds that the affidavit provided inadequate support for a finding of 17 probable cause. After hearing the arguments of counsel, the district court granted 18 Defendant’s motion. The instant appeal followed. 19 STANDARD OF REVIEW

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1 {7} The issuance of a search warrant is reviewed under a substantial basis standard. 2 State v. Williamson, 2009-NMSC-039, ¶ 29, 146 N.M. 488, 212 P.3d 376. “[T]he 3 substantial basis standard of review is more deferential than the de novo review 4 applied to questions of law, but less deferential than the substantial evidence standard 5 applied to questions of fact.” Id. ¶ 30. 6 {8} “[W]hen an application for a search warrant is based on an affidavit, the 7 affidavit must contain sufficient facts to enable the issuing magistrate independently 8 to pass judgment on the existence of probable cause.” Id. (internal quotation marks 9 and citation omitted). Our review is limited to the contents of the affidavit. State v. 10 Nyce, 2006-NMSC-026, ¶ 8, 139 N.M. 647, 137 P.3d 587, holding limited by 11 Williamson, 2009-NMSC-039, ¶ 29 & n.1. 12 {9} We do not substitute our judgment for that of the issuing court. Williamson, 13 2009-NMSC-039, ¶ 29. Rather, “the reviewing court must determine whether the 14 affidavit as a whole, and the reasonable inferences that may be drawn therefrom, 15 provide a substantial basis for determining that there is probable cause to believe that 16 a search will uncover evidence of wrongdoing.” Id. 17 DISCUSSION 18 {10} As previously described, the affidavit was largely based on the hearsay 19 statements of the CI. Rule 5-211(E) NMRA provides that hearsay may supply a proper

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1 basis for the issuance of a warrant, “provided there is a substantial basis for believing 2 the source of the hearsay to be credible and for believing that there is a factual basis 3 for the information furnished.” Accord State v. Cordova, 1989-NMSC-083, ¶ 6, 109 4 N.M. 211, 784 P.2d 30 (observing that the allegations of an informant cannot provide 5 probable cause to issue a search warrant unless both the basis of the informant’s 6 knowledge and the veracity or credibility of the informant are demonstrated). 7 {11} There appears to be no dispute about the adequacy of the factual basis for the 8 CI’s knowledge in this case. The affidavit clearly reflects that the information supplied 9 by the CI was based on first-hand experience, gained by virtue of its direct interaction 10 with Defendant. See generally State v. Lujan, 1998-NMCA-032, ¶ 12, 124 N.M. 494, 11 953 P.2d 29 (observing that when “first-hand knowledge naturally and logically flows 12 from a common-sense reading of the affidavit, that will suffice”). This is sufficient 13 to satisfy the basis of knowledge requirement. See, e.g., State v. Whitley, 14 1999-NMCA-155, ¶ 4, 128 N.M. 403, 993 P.2d 117 (holding that the basis of 15 knowledge requirement was met where, among other considerations, the informant 16 personally observed the defendant), holding limited by Williamson, 2009-NMSC-039, 17 ¶ 29; Lujan, 1998-NMCA-032, ¶¶ 9, 12 (holding that a controlled buy supplied first- 18 hand knowledge); State v. Montoya, 1992-NMCA-067, ¶ 14, 114 N.M. 221, 836 P.2d 19 667 (holding that the basis of knowledge requirement was satisfied where a

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1 confidential informant had personal knowledge, through observation, of the 2 defendant’s activities). 3 {12} The parties differ with respect to the CI’s credibility. An informant’s credibility 4 or veracity may be established in a variety of ways, including by showing that “(1) the 5 informant has given reliable information to police officers in the past, (2) the 6 informant is a volunteer citizen-informant, (3) the informant has made statements 7 against his or her penal interest, (4) independent investigation by police corroborates 8 informant’s reliability or information given, and (5) facts and circumstances disclosed 9 impute reliability.” In re Shon Daniel K., 1998-NMCA-069, ¶ 12, 125 N.M. 219, 959 10 P.2d 553 (citations omitted), holding limited by Williamson, 2009-NMSC-039, ¶ 29. 11 {13} With respect to the first factor, the affidavit merely indicates that the CI “has 12 proven to be reliable,” chiefly by virtue of its knowledge and experience with 13 controlled substances and drug trafficking activities. Such generalized assertions of 14 reliability and vague references to past involvement with law enforcement activities 15 are insufficient to establish that the informant has actually given reliable information 16 to police officers in the past. See State v. Therrien, 1990-NMCA-060, ¶ 6, 110 N.M. 17 261, 794 P.2d 735 (holding that a police officer’s statement that he knew the 18 informant to be reliable is insufficient to establish credibility), overruled on other 19 grounds by State v. Barker, 1992-NMCA-117, ¶ 13, 114 N.M. 589, 844 P.2d 839;

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1 and see, e.g., State v. Vest, 2011-NMCA-037, ¶¶17-18, 149 N.M. 548, 252 P.3d 772 2 (observing that previous performance supports credibility only if the affidavit 3 indicates that the informant actually provided accurate information to law enforcement 4 in the past), cert. quashed, 2012-NMCERT-004, 293 P.3d 887. 5 {14} With respect to the second factor, the CI was not a volunteer citizen-informant. 6 Instead, the CI was seeking a monetary reward. And, while the CI may have been 7 aware that the provision of inaccurate information carried the threat of prosecution, 8 this is not equivalent to the indication of reliability associated with citizen-informant 9 status. See State v. Dietrich, 2009-NMCA-031, ¶ 16, 145 N.M. 733, 204 P.3d 748 10 (quoting authority to the effect that a paid informant is regarded as less reliable than 11 a concerned citizen-informant). 12 {15} With respect to the remaining factors, the affidavit supplies much more 13 meaningful support for the veracity of the CI. 14 {16} As previously described, the CI stated that it had recently purchased crack 15 cocaine from Defendant at the specified location. Because there is a clear nexus 16 between this admission and Defendant’s criminal activity, the CI’s statement may 17 properly be regarded as the sort of statement against penal interest which suggests 18 credibility. See Barker, 1992-NMCA-117, ¶¶ 6-10 (holding that statements against 19 penal interest reflect upon an informant’s credibility where there is a nexus to the

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1 defendant’s criminal activity, and where the affidavit tends to show that the informant 2 would have had a reasonable fear of prosecution). 3 {17} Additionally, and perhaps most importantly, the controlled purchase supplies 4 strong support for the CI’s credibility. See generally Lujan, 1998-NMCA-032, ¶10 5 (observing that a controlled buy bears upon the credibility of a confidential informant, 6 insofar as it “reduces the uncertainty and risk of falsehood about the information 7 provided by [an] informant”). The information initially supplied by the CI about 8 Defendant’s drug trafficking activities at the specified location was clearly and 9 directly corroborated by the carefully arranged and monitored controlled buy. This is 10 sufficient to establish veracity. See generally 2 Wayne R. LaFave, Search & Seizure 11 § 3.3(f), at 225-27 (5th ed. 2012) (observing that “corroboration will suffice to show 12 veracity . . . [where an informant] has cooperated closely with the police . . . [such as] 13 when the informant makes a controlled purchase of narcotics”); and cf. State v. 14 Knight, 2000-NMCA-016, ¶ 21, 128 N.M. 591, 995 P.2d 1033 (holding that where an 15 affidavit provided information about the informant’s repeated and extensive 16 cooperation with police officers, reliability could properly be imputed from the facts 17 and circumstances), holding limited by Williamson, 2009-NMSC-039, ¶ 29. 18 {18} In his brief, Defendant suggests that the controlled buy should be disregarded 19 on grounds that “a security gate prevented [Affiant] from seeing if the [CI] ever

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1 actually went to [Defendant’s] apartment at all.” However, the presence of “a security 2 lock on the entrance door to the building” which prevented Affiant from obtaining “a 3 further description of apartment #1007” does not signify that the officers were unable 4 to observe the CI’s movements to and from the apartment. To the contrary, the 5 affidavit clearly specifies that the CI “was viewed to make contact at 3853 6 Montgomery NE #1007,” that the CI “entered the residence,” and that the CI exited 7 one to five minutes later, whereupon the CI directly proceeded to the prearranged end 8 point. The affidavit also repeatedly specifies that the CI was kept under “constant 9 surveillance” on the way to and from the apartment. This is sufficient to establish that 10 the controlled buy took place at the specified location. See generally Williamson, 11 2009-NMSC-039, ¶ 30 (“[I]f the factual basis for the warrant is sufficiently detailed 12 in the search warrant affidavit and the issuing court has found probable cause, the 13 reviewing courts should not invalidate the warrant by interpreting the affidavit in a 14 hypertechnical, rather than a commonsense, manner.” Id. (alteration, internal quotation 15 marks, and citation omitted)). 16 {19} Defendant further argues that this Court’s decision in Vest indicates that the 17 controlled buy does not support the CI’s veracity. However, Vest addressed a very 18 different situation. In that case, the informant’s participation in two prior, unrelated 19 controlled purchases was rejected as a basis for inferring credibility because the

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1 affidavit contained nothing to indicate that the informant had actually supplied any 2 reliable information to law enforcement officers. 2011-NMCA-037, ¶ 17. In this case, 3 by contrast, the controlled purchase took place at the location that was ultimately 4 subjected to search, and it substantiated the information that the CI had previously 5 supplied to Affiant about Defendant’s drug dealing activities at that location. 6 Accordingly, the controlled buy clearly supplied strong support for the CI’s veracity. 7 {20} Finally, we note the district court’s concern that the officers “did not observe 8 the residence during the same time frame as all of the CI’s interactions with it.” 9 However, neither Vest nor any other authority of which we are aware suggests such 10 a requirement. Efforts by police to corroborate information supplied by informants 11 must simply be timely, in order to avoid staleness concerns. Id. ¶¶ 21-22. In this case, 12 the controlled buy took place within the preceding 72 hours. The controlled buy 13 therefore supplied the sort of timely corroboration which was lacking in Vest. See 14 Lujan, 1998-NMCA-032, ¶¶ 2, 16 (concluding that a controlled buy from a residence 15 within the preceding 72 hours did not supply stale information). 16 CONCLUSION 17 {21} For the reasons stated, we conclude that the affidavit provided the issuing judge 18 with sufficient information to establish both the basis of the CI’s knowledge and the 19 CI’s credibility, such that the warrant was supported by probable cause. We therefore

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1 reverse and remand for further proceedings. 2 {22} IT IS SO ORDERED.

3 _____________________________ 4 MICHAEL E. VIGIL, Judge

5 WE CONCUR:

6 ___________________________________ 7 LINDA M. VANZI, Judge

8 _________________________________ 9 M. MONICA ZAMORA, Judge