State v. Solis

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the 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. 29,407 10 GUSTAVO SOLIS, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Stephen Bridgforth, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender 18 Allison H. Jaramillo, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant 21 MEMORANDUM OPINION 22 VIGIL, Judge.

1 Defendant appeals the district court denial of his motion to suppress arguing 2 that there was not probable cause to support the warrant to search Defendant’s 3 home. Defendant entered a conditional plea on charges of dog fighting, extreme 4 cruelty to animals, cruelty to animals, and contributing to the delinquency of a 5 minor, reserving the right to appeal the district court denial of his motion to 6 suppress. This Court issued a calendar notice proposing to affirm and Defendant 7 has responded by filing a memorandum in opposition which we have duly 8 considered. Defendant has also raised new issues not previously raised in his 9 docketing statement which this Court construes as a motion to amend. For the 10 reasons discussed below and in this Court’s notice of proposed disposition, we 11 affirm the district court ruling on Defendant’s motion to suppress and we deny 12 Defendant’s motion to amend his docketing statement. 13 DISCUSSION 14 The Search Warrant was Supported by Probable Cause 15 Defendant contends on appeal that the district court erred in denying his 16 motion to suppress, because the warrant to search his home was not supported by 17 probable cause. We recognize that since this Court’s calendar notice was entered 18 on May 27, 2009, our Supreme Court has issued an opinion addressing the 19 standard for reviewing whether a search warrant issued by a judge is supported by

3

1 probable cause. See State v. Williamson, 2009-NMSC-039, __ N.M. __, 137 P.3d 2 587 (No. 31,174, June 25, 2009) (stating that the reviewing court should not apply 3 a de novo standard of review to search warrants issued by a judge, and articulating 4 the standard of review as requiring “the reviewing court [to] determine whether the 5 affidavit as a whole, and the reasonable inferences that may be drawn therefrom, 6 provide a substantial basis for determining that there is probable cause to believe 7 that a search will uncover evidence of wrongdoing”). We note, however, that even 8 if we were to assume that Williamson applied to Defendant’s appeal, application of 9 the substantial basis standard articulated in Williamson does not change the result 10 in this case. 11 In this Court’s calendar notice, we gave deference to the magistrate’s 12 decision, and to the officer’s observations, experience and training, in proposing to 13 conclude that it was reasonable for the magistrate to determine that probable cause 14 existed to support issuance of a search warrant. [CN 4-5] In his memorandum in 15 opposition, Defendant continues to argue that the affidavit was insufficient because 16 (1) it did not establish a reasonable inference that the animals belonging to 17 Defendant were being treated cruelly, and (2) it did not establish a reasonable 18 inference that any illegal activity was taking place. [MIO 7] To the extent 19 Defendant is contending that there must be probable cause to support the specific

4

1 crime of extreme animal cruelty because it was identified in the affidavit, 2 Defendant advanced a similar argument in his docketing statement which this 3 Court previously declined to address because it was unsupported by citation to 4 authority. Defendant now refers this Court to State v. Moran, 2008-NMCA-160, 5 145 N.M. 297, 197 P.3d 1079, in his memorandum in opposition. 6 We are unpersuaded by Defendant’s reliance on Moran. In Moran, an 7 officer was executing a search warrant in a criminal sexual penetration case (CSP) 8 when he noticed a number of animal skulls and antlers. The officer executing the 9 warrant called a game and fish officer to look around the home and determine if a 10 violation had been committed. See id. ¶ 3. This Court found that it was an 11 improper extension of the plain view exception to allow the game and fish officer 12 into the home to investigate, since the game and fish officer was not authorized “by 13 the search warrant issued in the CSP case to conduct an investigation inside 14 Defendant’s home into possible violations of game and fish laws.” See id. ¶¶ 12- 15 13. 16 Thus in Moran, this Court dealt with the plain view exception to the warrant 17 requirement, and did not address the issue presented herein. See Fernandez v. 18 Farmers Ins. Co., 115 N.M. 622, 627, 857 P.2d 22, 27 (1993) (internal quotation 19 marks and citation omitted) (“[C]ases are not authority for propositions not

5

1 considered.”). Moreover, in Moran, the violations being investigated where 2 wholly unrelated to one another, whereas, here, the offense being investigated, 3 arguably dog fighting, related to the treatment of Defendant’s dogs and, thus, the 4 allegations of extreme cruelty to animals made in the affidavit. To the extent 5 Defendant relies on the following language from Moran, “[t]he warrant must be 6 issued by a neutral and detached magistrate who has determined that there is 7 probable cause to believe that evidence of criminal activity described with 8 particularity will be found on the premises designated in the warrant,” 2008- 9 NMCA-160, ¶ 8 (emphasis added); [MIO 11], the language emphasized by 10 Defendant refers to the requirement that the evidence to be seized be described in 11 the warrant with sufficient specificity and therefore does not support Defendant’s 12 argument. 13 To the extent Defendant continues to argue that the affidavit was insufficient 14 to demonstrate probable cause that any illegal activity was occurring at 15 Defendant’s home, we remain unpersuaded. As this Court explained in its notice 16 of proposed disposition, the reviewing court gives deference to the magistrate’s 17 reasonable factual inferences underlying the probable cause determination. See 18 State v. Gonzales, 2003-NMCA-008, ¶ 14, 133 N.M. 158, 61 P.3d 867; [CN 4]. As 19 we proposed to conclude in our calendar notice, information that there were twelve

6

1 aggressive Pitbulls staked out in a large cluster behind the home; that each dog was 2 individually tethered and kept apart from the other dogs; that, based on the 3 officer’s experience, hobbyist dog fighters tend to have a large number of 4 American Pitbulls or American Staffordshire Terriers chained in such a manner; 5 that, based on the officer’s experience, hobbyist dog fighters train dogs to fight 6 with tools such as horse trainers; and, that one dog was chained to such a training 7 device in Defendant’s back yard, was sufficient for the magistrate judge to 8 reasonably conclude that a crime was occurring relating to the care and/or training 9 of the Pitbulls at Defendant’s home. As pointed out in this Court’s calendar notice, 10 training a dog for the purpose of having it participate in a dog fight is a violation of 11 NMSA 1978, § 30-18-9(B) (2007). We therefore conclude that the information 12 provided in the affidavit was sufficient to allow a neutral and detached magistrate 13 to make an independent determination that there was probable cause to believe that 14 a criminal offense was being committed at Defendant’s home. 15 To the extent Defendant continues to rely on State v. Nyce, 2006-NMSC- 16 026, 139 N.M. 647, 137 P.3d 587, overruled on other grounds by Williamson, 17 2008-NMCA-160, ¶ 29, to argue that the information submitted to the magistrate 18 judge constituted facially legal activity and did not establish probable cause, Nyce 19 also recognized that “ordinary, innocent facts alleged in an affidavit may be

7

1 sufficient if, when viewed together with all the facts and circumstances, they make 2 it reasonably probable that a crime is occurring in the place to be searched.” Nyce, 3 2006-NMSC-026, ¶ 14. Although Nyce acknowledged that “suspicious activity 4 should be the beginning, not the end, of the investigation,” id. ¶ 22, this Court is 5 unpersuaded that our Supreme Court’s decision in Nyce requires reversal of the 6 district court order denying Defendant’s motion to suppress. In Nyce, the affidavit 7 alleged that the defendant purchased iodine and hydrogen peroxide (items that 8 could be used in the production of methamphetamine); that the iodine was 9 purchased in an amount potentially inconsistent with personal use; and that both 10 products were purchased in a lawful yet suspicious manner and were taken to the 11 home in question. The only other information supporting the warrant was the 12 affiant’s observations of the hurried manner in which the defendant purchased the 13 items—information which our Supreme Court determined “all serve[d] to 14 ‘highlight the ordinary, rather than the sinister,’ in terms of what one can observe 15 daily in shopping centers throughout the state.” Id. ¶ 18. 16 In this case, the affidavit provides significantly more information from 17 which probable cause can be inferred than in Nyce. Here, the number of dogs, 18 breed of the dogs, and aggressive nature of the animals, along with what appears to 19 be an effort by Defendant to keep the dogs separated from one another, the

8

1 presence of training equipment at the home, and the attachment of one dog to said 2 training equipment, provide sufficient information from which a magistrate judge 3 could reasonably conclude that Defendant was training the dogs in violation of the 4 dog fighting statute. As we discussed above, it is sufficient that the evidence the 5 officer communicated to the magistrate judge established probable cause that a 6 crime was occurring, even if the officer did not reference the appropriate violation 7 by name in the affidavit. Cf. State v. Anaya, 2008-NMCA-020, ¶ 13, 143 N.M. 8 431, 176 P.3d 1163 (filed 2007) (acknowledging that, in the context of traffic stops 9 based on reasonable suspicion, “[t]he subjective belief of the officer does not in 10 itself affect the validity of the stop; it is the evidence known to the officer that 11 counts, not the officer’s view of the governing law” (alteration in original) (internal 12 quotation marks omitted)); State v. Muñoz, 1998-NMCA-140, ¶ 9, 125 N.M. 765, 13 965 P.2d 349 (ignoring an inappropriate reference to a statute in a citation prepared 14 by the officer and stating that, “[i]f [the officer’s] observations provided reasonable 15 grounds to believe that another statute was being violated, . . . the stop was valid, 16 regardless of his incorrect understanding of the law”). We therefore affirm the 17 district court order denying Defendant’s motion to suppress. 18 Defendant’s Motion to Amend

9

1 Defendant raises two additional issues in his memorandum in opposition 2 arguing that (1) all evidence seized should have been suppressed because the 3 warrant did not state with specificity the items to be seized from Defendant’s 4 home, and (2) Defendant’s statements should be suppressed because they were 5 obtained by exploitation of the illegal search. [MIO 13-15] Because Defendant 6 did not raise these issues in his docketing statement, we address Defendant’s 7 addition of these new issues as a motion to amend his docketing statement and 8 deny Defendant’s motion. 9 The essential requirements to show good cause for our allowance of an 10 amendment to an appellant’s docketing statement are: (1) that the motion be 11 timely, (2) that the new issue sought to be raised was either (a) properly preserved 12 below or (b) allowed to be raised for the first time on appeal, and (3) the issues 13 raised are viable. See State v. Moore, 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct. 14 App. 1989), superseded by rule as stated in State v. Salgado, 112 N.M. 537, 817 15 P.2d 730 (Ct. App. 1991). Although we acknowledge that Defendant’s motion was 16 timely and demonstrates how the issues raised were preserved below, we deny 17 Defendant’s motion to amend because the issues raised are not viable. 18 Defendant contends that the magistrate failed to describe with particularity 19 what items were to be seized and, as a result, the items seized should have been

10

1 suppressed. “The test for particularity is whether an executing officer reading the 2 description in the warrant would reasonably know what items are to be seized.” 3 State v. Patscheck, 2000-NMCA-062, ¶ 8, 129 N.M. 296, 6 P.3d 498 (internal 4 quotation marks and citation omitted). “A description in a search warrant is 5 sufficient if the description enables the officer to identify the place intended to be 6 searched [or item to be seized] with reasonable effort.” State v. Hinahara, 2007- 7 NMCA-116, ¶ 9, 142 N.M. 475, 166 P.3d 1129 (alteration in original) (quoting 8 State v. Rotibi, 117 N.M. 108, 113, 869 P.2d 296, 301 (Ct. App. 1994)). 9 Here, the warrant described the evidence to be seized as “an undetermined 10 number of dogs and or other animals, training paraphernalia, pedigree papers, 11 registration papers, health records, photographs, videos, disposable cameras, hard 12 drives, dog food, dog bowls, dog kennels, leashes, chains, dog houses.” [RP 82] 13 This description does not appear vague and overbroad as Defendant claims, but is 14 sufficiently particular to instruct the officers as to what items were to be seized 15 from Defendant’s residence. See Patscheck, 2000-NMCA-062, ¶ 8 (stating that a 16 search warrant is sufficiently particular where it adequately conveys to officers the 17 types of materials sought). Moreover, the items described in the search warrant all 18 appear to be potentially connected with dog fighting or cruelty to animals. See 19 State v. Gonzales, 2003-NMCA-008, ¶ 34, 133 N.M. 158, 61 P.3d 867 (finding the

11

1 search warrant sufficiently particular where all the items sought were potentially 2 connected with the assault described in the affidavit); State v. Steinzig, 3 1999-NMCA-107, ¶ 39, 127 N.M. 752, 987 P.2d 409 (finding the search warrant 4 sufficiently particular where the items described in the warrant were specifically 5 related to the counterfeiting activity at defendant’s home). 6 To the extent Defendant argues that the district court should have suppressed 7 all of the evidence seized because the officers exceeded the scope of the search 8 warrant, Defendant acknowledges that we have not recognized blanket suppression 9 as a remedy for violations of warrants in New Mexico. [MIO 15 (citing Patscheck, 10 2000-NMCA-062, ¶ 12)]. In Patscheck, this Court recognized that, at least in the 11 Tenth Circuit, blanket suppression was not a remedy for any violation of a search 12 warrant but only officers’ flagrant disregard of the warrant, and that in the absence 13 of flagrant disregard “[t]he remedy for any improper seizure . . . would be 14 suppression of the items improperly seized.” See id. ¶ 13 (alterations in original). 15 Defendant has not demonstrated that the officers flagrantly disregarded the scope 16 of the warrant. Although Defendant alleges that items not identified in the search 17 warrant were seized, “[a] search is generally not invalidated because some items 18 not listed in a search warrant are seized.” State v. Jacobs, 2000-NMSC-026, ¶ 41,

12

1 129 N.M. 448, 10 P.3d 127. As a result, we see no basis for the blanket 2 suppression Defendant contends the district court erred in not granting. 3 Finally, because we have concluded that the search was valid, we do not 4 address Defendant’s argument that his statements should have been suppressed 5 because they were obtained by exploitation of an illegal search. 6 CONCLUSION 7 Accordingly, for the reasons stated above and in this Court’s notice of 8 proposed disposition, we affirm the district court denial of Defendant’s motion to 9 suppress and we deny Defendant’s motion to amend his docketing statement. 10 IT IS SO ORDERED.

11 12 MICHAEL E. VIGIL, Judge

13 WE CONCUR:

14 15 CELIA FOY CASTILLO, Judge

16 17 RODERICK T. KENNEDY, Judge