State v. Powell & Ramirez
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1 2 3 4 5 6 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellant, 9 v. NO. 31,140 10 SHEENA POWELL, 11 Defendant-Appellee, 12 and 13 STATE OF NEW MEXICO, 14 Plaintiff-Appellant, 15 v. 16 17 FERNANDO RAMIREZ, 18 No. 31,139 (Consolidated) Defendant, Appellee. 19 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 20 Jacqueline D. Flores, District Judge 21 22 23 24 Gary K. King, Attorney General Santa Fe, NM Ralph E. Trujillo, Assistant Attorney General Albuquerque, NM 25 for Appellant 1 D. Eric Hannum 2 Albuquerque, NM 3 for Appellee Powell 4 Guadalupe Preciado 5 Albuquerque, NM 6 for Appellee Ramirez 7 MEMORANDUM OPINION 8 VANZI, Judge. 9 The State has appealed from the district court s orders suppressing the evidence 10 against Defendants Powell and Ramirez for lack of probable cause in obtaining the 11 same search warrant of the same residence shared by Defendants. We issued two 12 notices of proposed summary disposition, proposing to affirm both suppression 13 orders. The State filed a motion to consolidate the appeals, which we granted, 14 consolidating the cases under the case number 31,140. The State filed a memorandum 15 in opposition to our notices. We have considered the State s arguments and remain 16 unpersuaded that there was probable cause to support the search warrant issued by the 17 magistrate judge. We therefore affirm the district court s orders suppressing the 18 evidence against Defendants. 19 On appeal, the State asks whether the district court erred by finding that a 20 concerned citizen s (CC) visit to Defendants residence pursuant to an ongoing 2 1 relationship between the two combined with the CC s knowledge that illegal narcotics 2 were at the residence based on the CC s firsthand knowledge was insufficient to show 3 that the CC had the requisite basis of knowledge to justify approval of the search 4 warrant. [DS 6] 5 Focusing on the magistrate judge s finding of probable cause under the 6 substantial basis standard of review, we proposed to hold that the search warrant, 7 based on the hearsay statements of a confidential informant, did not meet the two8 pronged Aguilar/Spinelli test. See State v. Evans, 2009-NMSC-027, ¶ 12, 146 N.M. 9 319, 210 P.3d 216 ( Our inquiry focuses on the issuing judge s conclusion as to 10 probable cause. (emphasis omitted)); State v. Williamson, 2009-NMSC-039, ¶ 29, 11 146 N.M. 488, 212 P.3d 376 (overruling in part all previous case law to the extent that 12 the cases applied a de novo rather than substantial basis standard of review); In re 13 Shon Daniel K., 1998-NMCA-069, ¶ 9, 125 N.M. 219, 959 P.2d 553 (setting forth the 14 two-pronged Aguilar/Spinelli test). We proposed to hold that the affidavit was 15 insufficient because it did not provide the basis for the CC s knowledge or time frame 16 for when the knowledge may have been acquired; and it did not state whether the 17 information relied upon was gathered in a reliable way and contained no facts 18 indicating that the CC was credible or whether the information in the affidavit was 19 accurate and worthy of belief. We also proposed to reject the State s argument that 3 1 even without an express basis for the CC s knowledge, the corroborating details in the 2 affidavit were sufficient to be self-verifying or to ultimately satisfy probable cause. 3 In its response to our notice, the State disagrees with our reading of the 4 affidavit. [MIO 4] The State does not argue that we have misunderstood the facts or 5 the law; it simply disagrees with our application of the law to the facts and asks us to 6 infer that the CC had personally and recently observed Defendant s large-scale drug 7 trafficking operation from the CC s vague statement that the CC had an ongoing 8 relationship with Defendant Ramirez for six unspecified months. The State also asks 9 us to accept the veracity and reliability of the CC s basis of knowledge based on the 10 anonymous Crimestoppers phone call, containing even less specific but corroborating 11 details, and the officer-affiant s confirmation of the CC s details concerning 12 Defendant Ramirez s vehicle. [MIO 6-8] 13 We have recounted and considered these facts in our notice. We remain 14 unpersuaded that the affidavit provided . . . sufficient information to permit the court 15 to evaluate (1) the basis for the affiant s and any informant s knowledge indicating the 16 information relied upon was gathered in a reliable way; and (2) facts indicating that 17 the informant or informants are credible or the information in the affidavit is accurate 18 and worthy of belief. In Re Shon Daniel K., 1998-NMCA-069, ¶ 9. Because the 19 affidavit lacked all the necessary detail required for a finding of probable cause for the 4 1 reasons stated in the notices and in this opinion, we affirm the district court s ruling 2 that the warrant was invalid and the resulting suppression of the evidence. 3 IT IS SO ORDERED. 4 5 __________________________________ LINDA M. VANZI, Judge 6 WE CONCUR: 7 _________________________________ 8 CELIA FOY CASTILLO, Chief Judge 9 _________________________________ 10 MICHAEL D. BUSTAMANTE, Judge 5
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