FROM THE DISTRICT COURT OF SIERRA COUNTY Matthew G. Reynolds,
H. Balderas, Attorney General Santa Fe, NM for Appellant
Bennett J. Baur, Chief Public Defender Allison H. Jaramillo,
Assistant Appellate Defender Margaret Kennedy, Practicing Law
Student Santa Fe, NM for Appellee
MILES HANISEE, Judge
The State appeals from the district court's order
granting Defendant's motion to suppress evidence. We
previously issued a notice of proposed summary disposition in
which we proposed to reverse the district court's
decision. Defendant has filed a memorandum in opposition.
After due consideration, we are unpersuaded. We therefore
The pertinent background information was set forth in the
notice of proposed summary disposition. We will avoid undue
repetition here and focus instead on the content of the
memorandum in opposition.
In the memorandum in opposition, Defendant challenges our
proposed finding that the search warrant affidavit contained
sufficient information for the issuing court to conclude that
the informant upon whose tip the affiant relied was credible.
[MIO 4] See State v. Hernandez, 1997-NMCA-006,
¶ 28, 122 N.M. 809, 932 P.2d 499 ("In New Mexico,
probable cause can be based on an informant's tip only
when the responding officers have a substantial basis for
believing the informant is reliable and the informant's
basis of knowledge is established."). Initially, we note
that Defendant argues that the informant had been accused of
stealing a rifle and some tools by his employer and,
therefore, tried to shift the blame to Defendant by telling
the affiant that Defendant possessed guns and tools. [MIO 1]
However, the search warrant affidavit did not include
information regarding any such accusations against the
informant, and we thus do not consider these facts.
[State's exhibit 1] See State v. Williamson,
2009- NMSC-039, ¶ 31, 146 N.M. 488, 212 P.3d 376
(holding that, where a search warrant is obtained,
"[o]ur review is limited to the four corners of the
search warrant affidavit"). Defendant further claims
that the informant admitted to being "high" at the
time he spoke with the affiant. [MIO 1] This fact is likewise
not in the search warrant affidavit, and we therefore do not
consider it. [State's exhibit 1] See id.
Defendant challenges our reliance on State v.
Barker, 1992-NMCA-117, 114 N.M. 589, 844 P.2d 839, and
argues that, to the extent the informant's admission that
he had violated his parole by smoking methamphetamine and
marijuana with Defendant was a statement against penal
interest, the same was insufficiently related to a crime
forming the basis of probable cause for the search warrant.
[MIO 6, 11-15] We are not persuaded. The affiant requested a
warrant authorizing, in part, the search for evidence of
possession of drug paraphernalia. [State's exhibit 1; MIO
2-3] The informant admitted to consuming controlled
substances by using three pipes that belonged to Defendant
and provided a detailed description of each pipe.
[Id.] Therefore, unlike the situation in
Barker, see id. ¶ 7, in this case the
informant's statement against his penal interest was
closely related to the criminal activity for which probable
cause to search was being established. For the same reason,
the facts in State v. Vest, 2011-NMCA-037, ¶
14, 149 N.M. 548, 252 P.3d 772, are likewise distinguishable.
Defendant further argues that the informant's admission
to having violated parole a fourth time was not a statement
against penal interest because "he was already
handcuffed and in custody for violating his parole[.]"
[MIO 13] We are unpersuaded. In Barker, we held that
"[t]here must be information in the affidavit that tends
to show that the informant would have had a reasonable fear
of prosecution at the time he made the statement."
1992-NMCA-117, ¶ 12. Here, the informant was facing the
possibility that his parole would be revoked, subject to
proof of the new violation at a parole revocation hearing,
and his admission of the violation increased the likelihood
of such revocation. Therefore, we hold that the requirements
of Barker were satisfied; we find Defendant's
reliance on facts not in the record and cases interpreting
the admissibility of hearsay evidence at trial unpersuasive.
Defendant also appears to argue that the saliva test
performed on the informant was insufficient corroboration of
his statement that he had smoked marijuana and
methamphetamine with Defendant because it was performed prior
to the affiant's arrival at the scene. [MIO 1, 4, 13]
Defendant does not challenge the results of this test, and we
fail to see how its timing alone affects the test's
Defendant further argues that the informant's statement
that Defendant unlawfully possessed firearms was not credible
because it was not against the informant's penal interest
and was not sufficiently corroborated by independent
investigation. [MIO 6, 15] We agree with Defendant that this
statement was not against the informant's penal interest.
As we stated in our calendar notice, however, we believe that
this statement was sufficiently corroborated by the
affiant's independent investigation into Defendant's
criminal history and the discovery that he was in fact a
convicted felon. [State's exhibit 1] Defendant asserts,
without providing any supporting authority or suggestions as
to what additional investigation could have been conducted,
that independent corroboration of each element of the
suspected crime was required. [MIO 16] See In re Adoption
of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d
1329 (stating that where a party cites no authority to
support an argument, we may assume no such authority exists).
Therefore, we remain unpersuaded.
Defendant next argues that "[t]he double hearsay in this
case does not provide a basis for establishing the
reliability of [the informant]." [MIO 16-17] Defendant
appears to refer to Defendant's statement to the
informant that he possessed firearms, which the informant
relayed to the affiant. [MIO 15] "[T]he presence of
'double hearsay, ' in itself, does not render [a
search warrant] affidavit legally insufficient."
State v. Perea, 1973-NMCA-123, ¶ 15, 85 N.M.
505, 513 P.2d 1287; see also State v. Alderete,
1975-NMCA-058, ¶ 10, 88 N.M. 14, 536 P.2d 278 (holding
that search warrant affidavit containing double hearsay
established probable cause for arrest warrant where
information at issue "would have provided probable cause
if given directly to the affiant detective"). Defendant
does not develop his argument beyond stating that hearsay is
unreliable, and we therefore decline to address it further.
[MIO 16] See Headley v. Morgan Mgmt. Corp.,
2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076
(declining to entertain a cursory argument).
Lastly, Defendant asks us to affirm the district court's
order under the right-for-any-reason doctrine, arguing that
the information in the search warrant affidavit pertaining to
the firearms was stale. [MIO 2, 17-20] We refuse to do so.
"Probable cause to authorize the issuance of a search
warrant requires a factual showing that an accused, at the
time of the application for warrant, is in possession of
illegal property or the fruits of a crime or that evidence
relating to the commission of a crime exists on the premises
sought to be searched." State v. Lovato,
1994-NMCA-042, ¶ 8, 118 N.M. 155, 879 P.2d 787 (internal
quotation marks and citation omitted). Defendant relies
heavily on the fact that, when the affiant arrived at the
scene on November 10, 2015, the informant's parole
officer told him that the informant had indicated that he had
been at Defendant's apartment "on Sunday afternoon,
" which would have been November 8, 2015. [MIO 3, 6,
17-20] However, the affidavit further states that when the
informant spoke directly with the affiant, the informant
stated that he had discussed the unlawfully possessed
firearms with Defendant on November 9, 2015. [State's
exhibit 1] Therefore, the affidavit established that the
information was one day old. Defendant further asserts that
the informant stated that "[Defendant] was getting
rid of his guns" [MIO 21], "knew that the
Housing Authority would arrive at any moment to search his
house and was actively trying to get rid of the guns in his
vents[, ]" [MIO 19] and was trying to "quickly get
rid of [the guns]" [MIO 20]. In fact, the affidavit
merely stated that Defendant "needed to get rid of [the
firearms], and that he hid them in the vent system of the
apartment because he was alerted by the Housing Authority
that they were going to do an inspection [of] his
apartment[.]" [State's exhibit 1] Contrary to
Defendant's interpretation, a common sense reading of
this statement indicates that Defendant believed that hiding
the guns "in the vent system" was sufficient to
address the risk of discovery during an inspection, and does
not communicate the heightened urgency argued by Defendant.
Therefore, even assuming that the information was two days
old, we conclude that it was not stale for purposes of
Accordingly, for the reasons stated above and in the notice
of proposed ...