State v. Whitley

1999 NMCA 155, 993 P.2d 117, 128 N.M. 403
CourtNew Mexico Court of Appeals
DecidedNovember 16, 1999
Docket19,863
StatusPublished
Cited by29 cases

This text of 1999 NMCA 155 (State v. Whitley) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Whitley, 1999 NMCA 155, 993 P.2d 117, 128 N.M. 403 (N.M. Ct. App. 1999).

Opinion

OPINION

WECHSLER, J.

{1} Defendant Paul Whitley appeals the denial of his motion to suppress evidence obtained pursuant to a search warrant. He challenges the sufficiency of the affidavit used to obtain the warrant, contending that the issuing judge lacked probable cause to issue the warrant. We reverse the district court’s denial of the motion to suppress.

{2} The State charged Defendant with possession of marijuana with intent to distribute contrary to NMSA 1978, § 30-31-22 (1990). Defendant entered a plea of no contest, reserving his right to appeal the district court’s denial of the motion to suppress. The affidavit reads in pertinent part:

3. On Monday 11-17-97 affiant received information from a confidential source. The confidential source has assisted affiant and other law enforcement agencies with narcotic investigations. The confidential source’s information has lead [sic] to the seizure of controlled substances and many controlled substances related arrests. Confidential source has never given affiant false information.
4. Confidential source is familiar with marijuana and how it is packaged, sold, used and concealed. Confidential source is associated with users and sellers of marijuana.
5. Information received from the confidential source on 11-17-97 is that while at the Crane Motel, 1212 West Second, Room Number # 24, the confidential source has observed Paul Whitley sell marijuana in the past (48) forty-eight hours.
6. On 11-17-97 affiant contacted a reliable and confidential informant. This informant has assisted affiant and other law enforcement personnel [sic] with narcotics investigations. Said informant has given affiant information [sic] on more than three occassions [sic] that have [sic] led to the recovery of controlled substances.
Said informant advised that a Paul Witley [sic] who is staying at the Crane Motel Room # 24 has a loaded firearm. Informant advised that Paul is upset over the loss of his vehicle.

{3} “In reviewing the sufficiency of an affidavit submitted in support of the issuance of a search warrant, we apply a de novo standard of review.” In re Shon Daniel K., 1998-NMCA-069, ¶ 8, 125 N.M. 219, 959 P.2d 553. We review the affidavit by giving it a common-sense reading, considering the affidavit as a whole, to determine whether the issuing judge made an “informed, deliberate, and independent determination of probable cause.” State v. Lujan, 1998-NMCA-032, ¶¶ 3, 6, 124 N.M. 494, 953 P.2d 29. We conclude that the issuing court did not have probable cause to grant the search warrant because the affidavit did not contain sufficient information of ongoing criminal activities and the information was therefore stale. See State v. Lovato, 118 N.M. 155, 158, 879 P.2d 787, 790 (Ct.App.1994).

{4} The State shows, and Defendant does not disagree, that the information provided by the first confidential informant meets the Aguilar-Spinelli test adopted in State v. Cordova, 109 N.M. 211, 213, 784 P.2d 30, 32 (1989). See also Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The affidavit indicates that the informant has provided truthful and reliable information in the past, satisfying the “credibility” or “veracity” prong. The affidavit also satisfies the “basis of knowledge” prong because the informant was in the motel room and personally observed Defendant selling marijuana.

{5} However, the affidavit contains another deficiency. “In New Mexico, before a valid search warrant may issue, there must be substantial evidence in the supporting affidavit to show: ‘(1) that the items sought to be seized are evidence of a crime; and (2) that the criminal evidence sought is located at the place to be searched.’ ” State v. Sansom, 112 N.M. 679, 681, 818 P.2d 880, 882 (Ct.App.1991) (quoting State v. Herrera, 102 N.M. 254, 257, 694 P.2d 510, 513 (1985)). Defendant attacks the second of these requirements. He contends that the first informant’s information is unreliable for purposes of probable cause because it was stale under Lovato, 118 N.M. at 158, 879 P.2d at 790, as the information involved a motel room and was at least forty-eight hours old at the time the warrant was issued. In Lovato, the affidavit described a “controlled buy” in a motel room which had taken place within seventy-two hours prior to the completion of the affidavit. See id. at 156-57 n. 2, 879 P.2d at 788-89 n. 2. The affidavit did not indicate more recent activity, nor did it verify that the defendant was still at the motel room. See id. This Court held that under the facts of the case, the affidavit failed to support a conclusion that-criminal activity in the motel room was of an ongoing nature. See id. at 158, 879 P.2d at 790.

{6} The State responds to this argument in several ways. First, the State contends that the affidavit can be read to infer that Defendant was “selling marijuana in the last forty-eight hours,” implying an ongoing or more recent operation. We do not agree with this response. The affidavit states that the confidential informant “has observed Paul Whitley sell marijuana in the past (48) forty-eight hours.” We do not read this statement to mean that the informant observed continual transactions or that the transaction could have taken place more recently than forty-eight hours. To do so would permit the use of stale information which is made to appear current by inclusive language such as “in the past” or “within the past.” See Commonwealth v. Novak, 233 Pa.Super. 236, 335 A.2d 773, 774 (1975) (“If [it was not the case that courts assume a transaction took place in the most remote part of a specified period], stale information could be made to appear current by the mere use of ‘within’ language.”); 2 Wayne R. La-Fave, Search and Seizure § 3.7(b), at 359 (3d ed.1996). In addition, as in Lovato, the affidavit in the case on appeal did not include any information concerning the quantity of marijuana sold or any information that the informant observed other drugs or drug paraphernalia in the motel room, which would tend to indicate ongoing activity. See Lovato, 118 N.M. at 158, 879 P.2d at 790.

{7} Second, the State contends that, unlike in Lovato, the information was not stale because the affidavit does not rely on information concerning a single, controlled buy, but rather implies more than one sale because the sale of drugs is usually an ongoing activity. We do not perceive a distinction between a one-time controlled buy and an affidavit claiming observation of a sale of marijuana. As noted above, nothing in the affidavit indicates more than one transaction. The affidavit, therefore, should be read to mean only one transaction. See In re Shon Daniel K, 1998-NMCA-069, ¶ 9, 125 N.M.

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Cite This Page — Counsel Stack

Bluebook (online)
1999 NMCA 155, 993 P.2d 117, 128 N.M. 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-whitley-nmctapp-1999.