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STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
JOSHUA ISMENDUS CORBETT,
Defendant-Appellee.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY, Gary L.
Clingman, District Judge
Hector H. Balderas, Attorney General,
Santa Fe, NM, for Appellant
Templeman and Crutchfield, C. Barry
Crutchfield, Lovington, NM, for Appellee
JONATHAN B. SUTIN, Judge. WE CONCUR: M.
MONICA ZAMORA, Judge, HENRY M. BOHNHOFF, Judge
AUTHOR: JONATHAN B. SUTIN
{1} 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.
{2} 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.
{3} 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).
{4} 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 argument.
{5} 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 were valid.
{6} Accordingly, for
the reasons stated, we reverse and remand for further proceedings.