State v. Belknap

This memorandum opinion was not selected for publication in the New Mexico Appellate 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 35,195 5 DAVID BELKNAP, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 8 Angie K. Schneider, District Judge 9 Hector H. Balderas, Attorney General 10 Laura E. Horton, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 Allison H. Jaramillo, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 VARGAS, Judge. 1 {1} A search warrant was executed upon Defendant’s home, based on information 2 provided by an unnamed confidential informant. The search resulted in the discovery 3 of marijuana, digital scales, pipes, mason jars, and three firearms, and Defendant was 4 charged with possession with intent to distribute marijuana, and possession of drug 5 paraphernalia. 6 {2} After the district court denied Defendant’s motion to suppress the evidence 7 discovered under the search warrant, Defendant entered into a conditional plea, 8 reserving his right to appeal the district court order. 9 {3} It is undisputed that Defendant is registered and authorized to possess and grow 10 a limited amount of marijuana under New Mexico’s Compassionate Use Act. See 11 Lynn & Erin Compassionate Use Act (Compassionate Use Act), NMSA 1978, 12 §§ 26-2B-1 to -7 (2007). It is further undisputed that the officer who submitted the 13 affidavit for search warrant, failed to disclose his knowledge that Defendant had a 14 valid medical marijuana card under the Act to the magistrate judge who issued the 15 search warrant. On appeal, Defendant contends that the affidavit for search warrant 16 fails to establish probable cause. Defendant further argues that if the affidavit is 17 otherwise sufficient, the search warrant is nevertheless invalid because the officer 18 submitting the affidavit omitted facts material to the probable cause determination in 19 reckless disregard for the truth by failing to disclose Defendant’s registration and [2] 1 lawful possession of marijuana under the Act. Defendant also suggests that a police 2 officer has an affirmative duty to investigate whether the target of a marijuana 3 investigation is so licensed under the Act. 4 {4} We conclude that the affidavit fails to establish probable cause because it does 5 not contain a satisfactory explanation of the basis of the confidential informant’s 6 knowledge, and reverse. In light of our holding, we do not address Defendant’s 7 remaining arguments. 8 I. BACKGROUND 9 {5} In support of his application for search warrant, Agent Rodney Scharmack 10 submitted an affidavit dated November 15, 2013, based solely on information he had 11 received from a confidential informant. According to Agent Scharmack, the 12 confidential informant, who had proven reliable in the past, had observed “a quantity 13 of [m]arijuana consistent with trafficking or distribution, inside the residence” and on 14 Defendant within the last seventy-two hours. In support of the confidential 15 informant’s information, Agent Scharmack explained that the confidential informant 16 was a “self-admitted drug user, and is familiar with narcotics in their appearance, 17 packaging methods, pricing, quantity, methods of ingestion, and distribution 18 methods.” Finally, Agent Scharmack’s affidavit stated that he learned “from the 19 confidential reliable informant that marijuana distribution is being conducted by the [3] 1 defendant(s) from the above[-]described location on a regular basis.” Despite knowing 2 that Defendant held a valid medical marijuana card issued under the Compassionate 3 Use Act that allowed Defendant to produce limited amounts of marijuana for his own 4 use, Agent Scharmack failed to advise the magistrate court judge of this fact in his 5 affidavit. The magistrate court issued the warrant on November 15, 2013. Six days 6 later, the Otero County Sheriff’s Office and the Otero County Narcotics Enforcement 7 Unit served the warrant. 8 II. STANDARD OF REVIEW 9 {6} The validity of a search warrant will be upheld if the affidavit supporting the 10 application for the warrant “provides a substantial basis to support a finding of 11 probable cause.” State v. Williamson, 2009-NMSC-039, ¶ 29 , 146 N.M. 488 , 212 P.3d 12 376 . When reviewing an application for a warrant, “[a] reviewing court should not 13 substitute its judgment for that of the issuing court.” Id. Instead, it “must determine 14 whether the affidavit as a whole, and the reasonable inferences that may be drawn 15 therefrom, provide a substantial basis for determining that there is probable cause to 16 believe that a search will uncover evidence of wrongdoing.” Id. “[T]he substantial 17 basis standard is not tantamount to rubber-stamping the decision of the issuing court 18 and does not preclude the reviewing court from conducting a meaningful analysis of 19 whether the search warrant was supported by probable cause.” Id. ¶ 30. Rather, the [4] 1 reviewing court must consider whether the affidavit “ ‘contain[s] sufficient facts to 2 enable the issuing magistrate independently to pass judgment on the existence of 3 probable cause. Mere affirmance of belief or suspicion [by the affiant] is not enough.’ 4 ” Id. (quoting State v. Cordova, 1989-NMSC-083 , ¶ 5, 109 N.M. 211 , 784 P.2d 30 ). 5 “While we give deference to a magistrate’s decision, and to an officer’s observations, 6 experience, and training, their conclusions must be objectively reasonable under all 7 the circumstances.” State v. Haidle, 2012-NMSC-033, ¶ 13 , 285 P.3d 668 (alteration, 8 internal quotation marks, and citation omitted). Further, because our State and Federal 9 Constitutions afford homes the highest level of protection, the presence of objective 10 reasonableness is of tantamount importance when reviewing the search of a home. Id. 11 III. DISCUSSION 12 {7} The majority of the parties’ briefing before this Court focuses on whether Agent 13 Scharmack’s failure to disclose Defendant’s valid medical marijuana card registration 14 constitutes a material omission that is sufficient to negate probable cause. Because the 15 effect of a material omission is relevant only if the affidavit otherwise provides a 16 substantial basis from which to determine probable cause, we initially address 17 Defendant’s argument that the affidavit was insufficient to give rise to probable cause 18 in the first place. 19 A. Confidential Informant’s Information Was Insufficient to Establish 20 Probable Cause [5] 1 {8} Where an affidavit is based on hearsay provided by an unnamed confidential 2 informant, the affidavit must inform the magistrate of “the underlying circumstances 3 from which the informant concluded that the facts were as he claimed they were, and 4 some of the underlying circumstances from which the officer concluded that the 5 informant was credible or his information reliable.” Cordova, 1989-NMSC-083 , ¶ 6 6 (alteration, internal quotation marks, and citation omitted). Using this criteria, our 7 Supreme Court has created a two-prong test for courts to use when analyzing cases 8 where an application for search warrant depends on an unnamed, confidential 9 informant to establish probable cause. Id. ¶¶ 6, 17. This test contains a “veracity” 10 prong and a “basis of knowledge” prong. Id. ¶ 6 (internal quotation marks and citation 11 omitted). Defendant argues that the affidavit neither provides evidence of 12 corroboration of the confidential informant’s veracity, nor provides a basis of 13 knowledge for the confidential informant’s allegations. 14 1. Veracity 15 {9} The veracity prong requires that an affidavit set forth a substantial basis for 16 believing the source is credible. Id. ¶ 11. An informant’s credibility or veracity may 17 be established through a showing that “the informant has given reliable information 18 to police officers in the past[.]” In re Shon Daniel K., 1998-NMCA-069, ¶ 12 , 125 19 N.M. 219 , 959 P.2d 553 . Agent Scharmack states that the confidential informant [6] 1 provided accurate information regarding ongoing drug activity, has participated in 2 controlled purchases of narcotics, and has provided information that was corroborated. 3 The affidavit adds, “information provided by the confidential reliable informant, in 4 the past, has been proven to be accurate[.]” We therefore conclude that the affidavit 5 satisfies the veracity prong. See State v. Vest, 2011-NMCA-037, ¶¶ 17-18 , 149 N.M. 6 548, 252 P.3d 772 (recognizing that past performance can be an indicator of veracity 7 when the affidavit states that the informant has provided reliable information to law 8 enforcement in the past). 9 2. Basis of Knowledge 10 {10} To demonstrate a confidential informant’s “basis of knowledge,” an affidavit 11 must establish a substantial basis for “concluding the informant gathered the 12 information of illegal activity in a reliable fashion.” Cordova, 1989-NMSC-083 , ¶ 11; 13 accord Rule 5-211(E) NMRA. “In the absence of underlying circumstances 14 establishing the basis of an informant’s conclusion, the affidavit will sufficiently 15 establish probable cause if the informant describes the criminal activity in such detail 16 that a judge will know the informant relies on more than a casual rumor or reputation 17 of the defendant.” State v. Baca, 1982-NMSC-016 , ¶ 18, 97 N.M. 379 , 640 P.2d 485 . 18 But see State v. Lujan, 1998-NMCA-032, ¶ 12 , 124 N.M. 494 , 953 P.2d 29 19 (concluding that “basis of knowledge” prong was satisfied where affidavit detailed [7] 1 confidential informant’s actions and statements during and after a controlled buy in 2 such detail that “first-hand knowledge naturally and logically flows from a common- 3 sense reading of the affidavit”). 4 a. The Absence of Detail in the Affidavit is Fatal to the Warrant Application 5 {11} The information supplied by the confidential informant and relayed by Agent 6 Scharmack in this case is made up of two generalized conclusions. First, Agent 7 Scharmack states that the confidential informant “observed a quantity of [m]arijuana 8 consistent with trafficking or distribution” both inside the residence and on 9 Defendant’s person within the past seventy-two hours. Though it is reasonable to infer 10 from this language that the confidential informant gained first-hand knowledge of the 11 presence of marijuana through observation, there is no information in the affidavit 12 from which to infer the conditions under which the observation was made or what the 13 confidential informant observed. The affidavit lacks any information regarding the 14 quantity of marijuana seen by the confidential informant, other than to say that it was 15 “consistent with trafficking or distribution[.]” The affidavit similarly contains no 16 information about its condition, storage, or packaging, which might support an 17 inference regarding quantity, stage of production, or intent to distribute. Furthermore, 18 this Court has previously recognized that marijuana is a highly consumable item. 19 Without any information as to the quantity observed, the frequency of use, or the rate [8] 1 of distribution, nothing in the affidavit indicates that possession was continuous in 2 nature. “The greater the uncertainty, the more the probable cause equation requires 3 continuing activity because it is the ongoing nature of the reported illegal activity that 4 allows the inference that the activity is continuing and that the evidence will still 5 exist.” State v. Whitley, 1999-NMCA-155, ¶ 9 , 128 N.M. 403 , 993 P.2d 117 ; see Baca, [6] 1982-NMSC-016 , ¶ 18; Lujan, 1998-NMCA-032, ¶ 12 . 7 {12} The informant’s second general conclusion that “marijuana distribution is being 8 conducted by the defendant(s) from the above-described location on a regular basis,” 9 is also deficient. The affidavit states that the confidential informant observed 10 marijuana in the last seventy-two hours but is silent as to the time frame for the 11 alleged distribution. Even if we assume the alleged distribution took place during the 12 same time frame, the affidavit is devoid of any factual detail of what the confidential 13 informant saw or heard that led the confidential informant to conclude “distribution 14 [was] being conducted” by Defendant. Again, the affidavit contains no information 15 about any drug transactions the confidential informant allegedly witnessed, the 16 frequency of the alleged distribution, or the quantities sold. The only detail provided 17 is a vague reference to sales occurring “on a regular basis,” with no explanation of the 18 meaning of that phrase. [9] 1 {13} These conclusory statements set out by Agent Scharmack in the affidavit 2 without any context or explanation of the method through which the information was 3 discovered provide little assistance to the court in establishing probable cause. See 4 Baca, 1982-NMSC-016 , ¶ 18 (“[T]he fact that [an] informant stated that the defendant 5 was known by the informant to be involved in [marijuana distribution] is but a bald 6 and unilluminating assertion of suspicion that is entitled to no weight in appraising the 7 (judge’s) decision.” (internal quotation marks and citation omitted)). Agent 8 Scharmack related that the confidential informant was familiar with the “appearance, 9 packaging methods, pricing, quantity, methods of ingestion, and distribution methods” 10 of narcotics without explaining how the confidential informant’s observations at the 11 home were consistent with that knowledge. There is no information in the affidavit to 12 support the conclusory statement that “distribution is being conducted” that was “not 13 created at some level with supposition, inference, or unsupported hunch or transmitted 14 from one hearsay source to another by unfounded rumor.” Haidle, 2012-NMSC-033 , 15 ¶ 24; Baca, 1982-NMSC-016 , ¶ 19 (“Even assuming that the information provided did 16 describe criminal activity, the detail was insufficient to apprise the judge that the 17 informant was not relying on rumor or reputation.”). 18 {14} While “detailed description may compensate for an inability to show [an] 19 informant’s basis of knowledge[,]” the affidavit in this case is devoid of any [10] 1 information which would assure the magistrate court of the reliability of the 2 informant’s knowledge. Haidle, 2012-NMSC-033, ¶ 25 (internal quotation marks and 3 citation omitted). Rather than providing a description of activity sufficient to establish 4 the basis of the confidential informant’s knowledge, the affidavit’s conclusory 5 descriptions simply avoid addressing the important details. The affidavit does not 6 indicate whether Defendant lived in, rented, or was visiting the house to be searched. 7 The affidavit does not include any information concerning the quantity of marijuana 8 in the home. It does not reveal the packaging that the marijuana was being kept in that 9 presumably rendered it susceptible to identification by the confidential informant. It 10 does not include any assertion that the confidential informant observed any 11 paraphernalia in the home. It does not suggest the manner, frequency, or any other 12 details regarding how the distribution allegedly being conducted on the premises was 13 accomplished. Absent such details, we conclude that the affidavit does not adequately 14 set forth the confidential informant’s “basis of knowledge” as required by Cordova. 15 See 1989-NMSC-083 , ¶ 6; see also State v. Knight, 2000-NMCA-016, ¶ 18 , 128 N.M. 16 591, 995 P.2d 1033 (concluding that the affidavit was insufficient under the “basis of 17 knowledge” prong where it “related hearsay information without providing any 18 information about the manner in which the source of the information had acquired 19 it[,]” and characterizing such information as “unreliable by itself to support the [11] 1 probable cause determination due to the absence of a description of any underlying 2 circumstances”). 3 {15} Besides the two generalized conclusions from the confidential informant, the 4 remaining portions of the affidavit contain only broad statements of Agent 5 Scharmack’s experience and explanations of behaviors generally associated with 6 narcotics. See State v. Morales, 2008-NMCA-102, ¶ 14 , 144 N.M. 537 , 189 P.3d 670 7 (“Where the standard is probable cause, a search or seizure of a person must be 8 supported by probable cause particularized with respect to that person.” (internal 9 quotation marks and citation omitted)). Even taken together, all of the information in 10 the affidavit is insufficient to establish probable cause. See Baca, 1982-NMSC-016 , 11 ¶ 21 (“An aggregate of discrete bits of information, each defective, cannot add up to 12 probable cause.”). 13 B. Defendant’s Remaining Argument 14 {16} Because the affidavit in this case did not give rise to probable cause, we need 15 not reach the issue of whether Agent Scharmack’s omission of facts from the affidavit 16 regarding Defendant’s medical marijuana card constitutes a material omission 17 demonstrating a reckless disregard for the truth. See State v. Fernandez, 1999-NMCA- 18 128, ¶ 34, 128 N.M. 111 , 990 P.2d 224 (“[T]o suppress evidence based on . . . 19 omissions in a search warrant affidavit, the defendant must show . . . reckless [12] 1 disregard for the truth, as to a material fact.” (internal quotation marks omitted)). We 2 only express our concern regarding Agent Scharmack’s unilateral decision not to 3 include the fact that Defendant had a right to possess and grow marijuana under the 4 Compassionate Use Act in the affidavit because he “didn’t think that was important 5 for [the] search warrant.” See Cordova, 1989-NMSC-083 , ¶ 12 (acknowledging that 6 a police officer’s allegations are regarded as “presumably truthful” (alteration 7 omitted); cf. State ex rel. Bliss v. Davis, 1957-NMSC-102 , ¶ 2, 63 N.M. 322 , 319 P.2d 8 207 (stating that employees of the State “owe a duty of honesty to and fair dealings 9 with the citizens of the State of New Mexico”). 10 IV. CONCLUSION 11 {17} We reverse the district court’s denial of Defendant’s motion to suppress and 12 remand to the district court for further proceedings and to allow Defendant to 13 withdraw his conditional plea. 14 {18} IT IS SO ORDERED. [15] 16 JULIE J. VARGAS, Judge 17 WE CONCUR: [18] 19 MICHAEL E. VIGIL, Judge [1] 2 TIMOTHY L. GARCIA, Judge