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 Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-Appellee,
9 v. NO. 29,953
10 JONATHAN ROBLES,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY 13 Matthew G. Reynolds, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender 18 Carlos Ruiz de la Torre, Assistant Appellate Defender 19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 BUSTAMANTE, Judge. 1 Defendant appeals his conviction for possession of a controlled substance
2 (crack cocaine). He entered a conditional no contest plea to the charge and reserved
3 the right to appeal the denial of his motion to suppress and his motion for an order of
4 protection requiring disclosure of the name of the confidential informant (CI) who
5 supplied information to officers in support of the search warrant. After receiving a
6 copy of the affidavit and search warrant, we proposed to affirm in a second notice of
7 proposed summary disposition. Pursuant to an extension, Defendant has filed a timely
8 second memorandum in opposition. Having considered the arguments raised by
9 Defendant in his second memorandum and remaining unpersuaded, we affirm
10 Defendant’s conviction.
11 Sufficiency of the Affidavit in Support of the Search Warrant
12 Defendant challenges the legal sufficiency of the search warrant claiming that
13 the affidavit was defective because it failed to properly specify the residence to be
14 searched and it contained stale information. [2nd MIO 5-9]
15 A search warrant may be issued when “sufficient facts are presented in a sworn
16 affidavit to enable the magistrate to make an informed, deliberate, and independent
17 determination that probable cause exists.” State v. Gonzales, 2003-NMCA-008, ¶ 11,
18 133 N.M. 158, 61 P.3d 867 (filed 2002); see also Rule 5-211 NMRA. “Probable
19 cause to issue the warrant requires a factual showing that, at the time of the
2 1 application for the warrant, evidence relating to the commission of a crime exists on
2 the premises sought to be searched.” Gonzales, 2003-NMCA-008, ¶ 11. The degree
3 of proof required to establish probable cause to issue a search warrant is less than a
4 certainty of proof but more than a suspicion or possibility. Id. ¶ 12. “Thus, the
5 magistrate must have sufficient facts upon which to conclude that there is a reasonable
6 probability that evidence of a crime will be found in the place to be searched.” Id.
7 “In reviewing the sufficiency of an affidavit submitted in support of the
8 issuance of a search warrant, we apply a de novo standard of review.” State v.
9 Whitley, 1999-NMCA-155, ¶ 3, 128 N.M. 403, 993 P.2d 117 (internal quotation marks
10 and citation omitted). We review the affidavit by considering the affidavit as a whole
11 and giving it a common-sense reading. State v. Lujan, 1998-NMCA-032, ¶ 6, 124
12 N.M. 494, 953 P.2d 29 (filed 1997). Moreover, we defer “to the magistrate’s
13 reasonable factual inferences underlying the probable cause determination.”
14 Gonzales, 2003-NMCA-008, ¶ 14.
15 The affidavit in support of the search warrant describes the location to be
16 searched as follows:
17 a blue/gray and white singlewide trailer located at 912 lot 3 18 RESERVOIR ST. There are neighbors to all sides of the residence. . . . 19 The residence is a blue/gray and white singlewide trailer facing east and 20 west. The main entrance to the residence is the front door, which is 21 facing south. . . . The residence has a back entrance and is located facing 22 to the north.
3 1 2 [SRP 1]
3 In support of the warrant, the affiant, Sergeant Garcia, states that:
4 The past several months [I] ha[ve] had information from confidential 5 source that [Defendant’s] residence located at 912 lot 3 Reservoir St. has 6 been selling a controlled substance from the residence. . . . I was advised 7 through a confidential source [Defendant] sells Methamphetamine, 8 Cocaine and Crack Cocaine. . . . I have used this informant[s] in the past 9 and he/she has proven himself/herself to be a reliable person.
10 [SRP 2] Garcia also notes that while doing surveillance of the residence, he observed
11 “a lot of traffic” and people entering and leaving the residence at all hours, and he
12 learned that Defendant “sells drugs along with several other individuals who stay with
13 [Defendant] on and off [including] Nicholas Hidalgo.” [SRP 2]
14 Garcia then outlines two controlled purchases. As to the first, Garcia states:
15 On or between 02-05-08 and 02-07-08 I met with an informant and gave 16 him/her an undisclosed amount of . . . buy money. I checked the 17 informant[’]s person and vehicle prior to the purchase and he/she had 18 nothing out of the ordinary. This informant[] has supplied me with 19 information in the past that has been truthful and reliable. The informant 20 told me he/she could purchase crack cocaine from [Defendant]. I 21 followed the informant to a blue/gray in color mobile house located on 22 Reservoir St. I watched as the informant pulled up to the residence and 23 [Defendant] exited the mobile home and met with the informant for 24 approx. 10 seconds. . . . I watched as the informant left the residence and 25 I followed the informant to a prearranged location. The informant 26 handed me [materials that tested as crack cocaine]. I search[ed] the 27 informant again and I did not locate anything on the informant.
28 [SRP 2] As to the second purchase, Garcia states:
4 1 On or between 03-24-08 and 03-26-08, Officer Fernandez and I met with 2 confidential informant[] who was willing to purchase narcotics. . . . The 3 informant advised us he/she could make a controlled narcotic buy of 4 Methamphetamine/cocaine from [Defendant] or Nicholas Hidalgo, who 5 lived at 623 Reservoir St. We searched the informant’s person and 6 vehicle and we did not locate anything out of the ordinary on the 7 informant[s] person or . . . in his vehicle. I handed the informant an 8 undisclosed amount of . . . funds. We followed the informant to 612 Lot 9 3 Reservoir St. Officer Fernandez and I watched the informant arrive 10 at the residence and walk to the front door and enter in the residence. 11 The informant exited after a short time and left the area. Officer 12 Fernandez and I followed the informant to a prearranged location. . . . 13 [T]he informant handed us an undisclosed amount of cocaine and stated 14 he had got the cocaine from Nicholas Hidalgo who has been staying with 15 [Defendant] at his residence. I searched the informant’s person and 16 vehicle and not finding anything[,] the informant to leave [sic] the area.
17 [SRP 2-3]
18 The warrant is dated March 27, 2008, and it names Defendant and Nicholas Hidalgo
19 as possible suspects and states the address as 912 Lot 3 Reservoir St. [SRP 4]
20 Staleness
21 Defendant claims that the affidavit was based on stale information that failed
22 to provide substantial evidence that evidence of any crime would be found at
23 Defendant’s residence because: (1) the first controlled buy occurred over a month and
24 a half prior to the issuance of the search warrant; and (2) the second buy, while
25 occurring just one to three days before issuance of the warrant, indicates the purchase
26 was made from Hildago, not Defendant and contains typographical errors as to the
27 correct address. [2nd MIO 5-6] We disagree.
5 1 As more fully discussed in our second notice of proposed summary disposition,
2 staleness involves a variety of considerations including timeliness, the character of the
3 crime, the consumable or transferable nature of the items to be seized, and the
4 information known about the location to be searched. See Whitley, 1999-NMCA-155,
5 ¶ 8. A determination of staleness is made by “reviewing the content of the affidavit
6 for [the] search warrant and applying a common-sense reading.” State v. Steinzig,
7 1999-NMCA-107, ¶ 33, 127 N.M. 752, 987 P.2d 409.
8 In light of the fact that there were two controlled purchases at Defendant’s
9 residence within a six-week period, we proposed to hold that the magistrate could
10 reasonably conclude that the crime was ongoing. See id. ¶¶ 33-34; State v. Pargas,
11 1997-NMCA-110, ¶¶ 20-22, 124 N.M. 249, 948 P.2d 267. Moreover, because a
12 residence does not have the same transitory nature as a hotel room, we opined that the
13 probability that the drugs would continue to be at Defendant’s residence over a period
14 of time is greater. See State v. Rubio, 2002-NMCA-007, ¶ 8, 131 N.M. 479, 39 P.3d
15 144 (filed 2001) (recognizing that “a residence does not have the same transitory
16 nature” as a motel room, and thus there was a greater probability that cocaine would
17 continue to be in the residence after a forty-eight hour period). Finally, we were not
18 convinced that the fact that Nicholas Hidalgo was the seller during the second
19 controlled purchase warranted a conclusion that the drugs would no longer be found
6 1 at Defendant’s residence given that the search warrant and affidavit clearly state in
2 multiple places that Nicholas Hidalgo lived with Defendant. [SRP 1-4]
3 In his second memorandum in opposition, Defendant notes that the affidavit
4 only states that Hildago “stays with” Defendant, not that he resides there. [2nd MIO
5 7] We do not believe this negates our proposed disposition which is based on the fact
6 that Hildago was often found at Defendant’s residence. Contrary to Defendant’s
7 contention, there is nothing in the language of the affidavit suggesting that Hildago
8 only stayed at Defendant’s residence “for a few days.” [2nd MIO 7] To the contrary,
9 based upon the language in the affidavit that certain persons “stay with [Defendant]
10 on and off [including] Nicholas Hildago,” and the phrase identifying Hildago as
11 someone “who has been staying with [Defendant] at his residence,” the issuing judge
12 could conclude that Hildago is often found at Defendant’s residence and that the
13 second controlled buy occurred at Defendant’s residence while Hidalgo was there.
14 [SRP 2-3]
15 In his second memorandum in opposition, Defendant again notes that the
16 affidavit states that the second buy occurred at 623 Reservoir Street. [2nd MIO 6] In
17 our previous notice, we observed that the information as to the second controlled
18 purchase appears to include a hand-written correction in the latter portion changing
19 the address to “912 Reservoir St.” [SRP 3] In his second memorandum in opposition,
7 1 Defendant states that the handwritten correction was a notation by defense counsel.
2 [2nd MIO 6] He then argues that, given that the typographical error was not corrected,
3 the issuing judge had less of a basis to believe there was continuing drug activity at
4 Defendant’s residence. [2nd MIO 6] We remain unconvinced.
5 As previously stated, the affidavit makes it clear that Hidalgo stayed with
6 Defendant at his residence. [SRP 1-4] We are not convinced that the failure to make
7 a handwritten correction on the affidavit negates our proposed disposition that the
8 court could find the mistaken address to be a typographical error. [RP 110, 122] Cf.
9 State v. Chandler, 119 N.M. 727, 734, 895 P.2d 249, 256 (Ct. App. 1995) (observing
10 that “an affidavit supporting a search warrant is not defective due to a typographical
11 error in the date of the alleged criminal activity where the typographical error is
12 obvious”).
13 Furthermore, we note that Defendant continues to rely mostly on this Court’s
14 opinion in Whitley in support of his contention that the affidavit was stale and
15 insufficient to support issuance of the search warrant. [2nd MIO 7-9] However, as
16 discussed in our previous notice, the warrant at issue in Whitley related to a hotel
17 room, and a residence such as Defendant’s is much less transient. Compare Whitley,
18 1999-NMCA-155, ¶¶ 9-10 (holding that information supporting a search warrant for
19 marijuana in a motel room was stale when it was at least forty-eight hours old); and
8 1 State v. Lovato, 118 N.M. 155, 157-58, 879 P.2d 787, 790-91 (Ct. App. 1994)
2 (holding that information regarding one controlled purchase at a hotel room seventy-
3 two hours before the affidavit issued was stale), with Steinzig, 1999-NMCA-107, ¶¶
4 33-34 (holding that three-week-old information was not stale when the items to be
5 seized were computers and the place to be searched was the suspect’s residence); and
6 Pargas, 1997-NMCA-110, ¶¶ 20-22 (holding that eleven-day-old information
7 supporting a warrant was not stale when the items to be seized were handguns or
8 indicia of handgun ownership and the place to be searched was a suspect’s residence).
9 For the foregoing reasons and those set forth in greater detail in our second
10 notice of proposed disposition, the affidavit in support of the search warrant was not
11 defective due to staleness and it was sufficiently detailed to allow the issuing court to
12 reasonably infer that continuing drug activity was occurring at Defendant’s residence.
13 CI’s Knowledge and Credibility
14 Defendant claims that the affidavit fails to meet the two-prong test set forth in
15 State v. Cordova, 109 N.M. 211, 213, 784 P.2d 30, 32 (1989), because it fails to
16 establish a substantial basis for the CI’s knowledge (credibility prong) or a substantial
17 basis for concluding that the CI was truthful or reliable (veracity prong). [2nd MIO 9-
18 11] He claims that there is no evidence that the CI actually observed drugs in
19 Defendant’s home nor any basis for concluding that the information furnished by the
9 1 CI had factual support. [2nd MIO 10] He further claims that the affidavit fails to
2 establish that the CI is credible. [2nd MIO 10-11]
3 In our second notice, we proposed to disagree. We proposed to hold that the
4 basis of knowledge requirement was satisfied by the CI’s participation in a drug
5 transaction with Defendant, at Defendant’s home. See Whitley, 1999-NMCA-155, ¶
6 4 (holding that the basis of knowledge requirement was met where the informant was
7 in the motel room which was the subject of the search warrant, and where the
8 informant personally observed the defendant selling marijuana). Furthermore, we
9 proposed to hold that the CI’s reliability and veracity were established through his/her
10 historical reliability and by Garcia’s independent corroboration. See generally
11 Steinzig, 1999-NMCA-107, ¶¶ 18, 21-23 (stating that an informant’s reliability may
12 be established by showing that the informant has previously given police officers
13 reliable information and the informant’s credibility may be corroborated by the
14 officers’ investigation and observation); State v. Knight, 2000-NMCA-016, ¶ 20, 128
15 N.M. 591, 995 P.2d 1033 (enumerating ways in which reliability of an informant may
16 generally be established, including past performance and independent corroboration)..
17 In his second memorandum in opposition, Defendant contends that the CI’s
18 information was not corroborated because the alleged corroborating information was
19 stale and had nothing to do with Defendant. [MIO 11] We are unpersuaded.
10 1 As discussed in our analysis of Defendant’s staleness claims, the affidavit
2 establishes that the CI was searched before and after controlled purchases that
3 occurred six weeks, and one to three days, prior to the issuance of the search warrant.
4 [SRP 2-3] Furthermore, the affidavit states that officers never lost sight of the CI
5 during the controlled buys except when the CI was inside Defendant’s residence
6 conducting the transaction. [SRP 2-3]
7 These facts are sufficient to establish independent corroboration of the CI’s
8 representation that Defendant was selling drugs from his residence and that he could
9 purchase drugs from Defendant. [SRP 2-3] See Knight, 2000-NMCA-16, ¶¶ 20-23
10 (stating the independent investigation and corroboration of an informant’s information
11 help to establish the veracity and reliability of that information).
12 Motion to Reveal the CI’s Identity
13 Defendant contends that the district court erred in refusing to order the
14 production of the name of the CI who supplied the information contained in the
15 affidavit so that the CI could be interviewed to determine the basis of his knowledge
16 and his veracity. [2nd MIO 11-13] See Cordova, 109 N.M. at 214, 784 P.2d at 33.
17 He claims that he had a right to interview the CI pursuant to Rule 11-510(C)(2)
18 NMRA, which applies when evidence indicates that an informer may be able to give
19 testimony that is relevant and helpful to the defense. [2nd MIO 12] In our second
11 1 notice, we proposed to affirm because it did not appear that Defendant made any kind
2 of showing that the CI would be able to give relevant or helpful testimony. [RP 69,
3 91, 101-104] See State v. Rojo, 1999-NMSC-001, ¶ 40, 126 N.M. 438, 971 P.2d 829
4 (filed 1998) (holding that the district court did not err in refusing to require the
5 disclosure of the CI’s identity because the defendant failed to show the CI's testimony
6 was “relevant or helpful to the defense, or necessary to the fair determination of
7 Defendant's guilt or innocence”).
8 In his second memorandum in opposition, Defendant claims that we failed to
9 address his argument that he needed to interview the CI in order to determine whether
10 the State complied with the Aguilar-Spinelli analysis adopted in Cordova which
11 requires a showing of the CI’s credibility and veracity. [2nd MIO 12-13] We disagree.
12 Defendant has failed to offer a meaningful challenge to our analysis or conclusions.
13 [2nd MIO 12-13] Therefore, we remain convinced that Defendant has failed to
14 establish a question as to the CI’s reliability or credibility because the affidavit itself
15 establishes the CI’s basis of knowledge and the CI’s reliability or veracity. See Lujan,
16 1998-NMCA-032, ¶ 10 (stating that the controlled buy addresses the informant’s basis
17 of knowledge and credibility and “thereby addresses both prongs of the Cordova
18 (Aguilar-Spinelli) test”).
12 1 For the reasons set forth above as well as those set forth in our first and second
2 notices of proposed summary disposition, we affirm Defendant’s conviction and the
3 denial of his motion to suppress and motion for an order of production.
4 IT IS SO ORDERED.
5 6 MICHAEL D. BUSTAMANTE, Judge
7 WE CONCUR:
8 9 JONATHAN B. SUTIN, Judge
10 11 RODERICK T. KENNEDY, Judge