FROM THE DISTRICT COURT OF LEA COUNTY Gary L. Clingman,
H. Balderas, Attorney General Santa Fe, NM for Appellant.
Templeman and Crutchfield C. Barry Crutchfield Lovington, NM
JONATHAN B. SUTIN, JUDGE.
The State has appealed from a suppression order. We issued a
notice of proposed summary disposition in which we proposed
to reverse. Defendant has filed a memorandum in opposition.
After due consideration, we remain unpersuaded. We therefore
reverse and remand for further proceedings.
The pertinent background information was set forth in the
notice of proposed summary disposition. [CN 2-5] To very
briefly reiterate, Officer Brandon Marinovich based his
affidavit for the initial search warrant upon the odor of
marijuana emanating from Defendant's residence. The odor
of marijuana was sufficient to support the municipal court
judge's probable cause determination. See, e.g.,
State v. Wagoner, 1998-NMCA-124, ¶ 19, 126 N.M.
9, 966 P.2d 176 (observing that the odor of marijuana
emanating from a residence gave police officers probable
cause to believe that evidence of crime was within). Insofar
as municipal courts are authorized to issue warrants to
search for and seize property that is possessed in violation
of municipal ordinances, see Rule 8-207(A)(1), (3)
NMRA, and insofar as possession of marijuana is prohibited by
a specific municipal ordinance [RP 67], we conclude that the
initial search was valid.
In his memorandum in opposition, Defendant contends that
"no evidence of any ordinance involving marijuana was
offered to the district court." [MIO 2] However, the
record reflects that the State cited, quoted, and summarized
the pertinent ordinance provisions to the district court in
its timely motion for reconsideration. [RP 67] We therefore
reject Defendant's factual assertion. See generally
Udall v. Townsend, 1998-NMCA-162, ¶ 3, 126 N.M.
251, 968 P.2d 341(indicating that on the summary calendar,
although "we rely in large part" upon statements of
the facts supplied by the parties, "if the record shows
otherwise, we will not accept that factual recitation");
State v. Calanche, 1978-NMCA-007, ¶ 10, 91 N.M.
390, 574 P.2d 1018 (observing that when the record of the
trial proceedings demonstrates that factual representations
contained within a submission to this Court is inaccurate, we
will not utilize the "non-facts" in our review of
the district court's ruling).
We surmise that Defendant may take issue with the State's
failure to supply a copy of the ordinance at the hearing on
the motion. However, the New Mexico Supreme Court has held
that "municipal ordinances are law" rather than
"adjudicative facts, " and as a result, it is no
longer necessary for prosecutors to present them as evidence.
City of Aztec v. Gurule, 2010-NMSC-006, ¶ 16,
147 N.M. 693, 228 P.3d 477. Accordingly, we reject
Defendant's suggestion that the State failed to present
"evidence" of the ordinance in support of its legal
In his memorandum in opposition, Defendant further contends
that Officer Marinovich was not investigating a violation of
a municipal ordinance, but rather he utilized the municipal
court to investigate his suspicion of a violation of state
law. [MIO 1-2] However, even if Officer Marinovich suspected
that evidence of a felony-level offense might be found within
the residence, we are aware of no authority (and Defendant
has cited none) that could be said to have required the
officer to act on his suspicion by seeking a search warrant
from the district court, as opposed to the municipal court.
Insofar as we are dealing with a search conducted pursuant to
a warrant, the officer's subjective state of mind is
largely irrelevant. See State v. Williamson,
2009-NMSC-039, ¶ 30, 146 N.M. 488, 212 P.3d 376
(observing that when an application for a search warrant is
based on an affidavit, "the issuing magistrate [must]
independently . . . pass judgment on the existence
of probable cause" and stating that "[m]ere
affirmance of belief or suspicion by the affiant is not
enough" (alteration, internal quotation marks, and
citation omitted)). And insofar as the evidence was
consistent with a municipal violation, we conclude that the
warrant issued by the municipal court and the ensuing search
Accordingly, for the reasons stated, we reverse and remand
for further proceedings.