STATE V. SNEDEKER, 1982-NMSC-085, 99
N.M. 286, 657 P.2d 613 (S. Ct. 1982)
STATE OF NEW MEXICO, Petitioner,
vs.
JOHN H. SNEDEKER, Respondent.
SUPREME COURT OF NEW MEXICO
1982-NMSC-085, 99 N.M. 286, 657 P.2d 613
ORIGINAL PROCEEDING ON CERTIORARI
Jeff Bingaman, Attorney General, Heidi
Topp Brooks, Assistant Attorney General, Santa Fe, New Mexico, Attorneys for
Petitioner.
Leon Taylor, Albuquerque, New Mexico,
Attorney for Respondent.
Easley, C.J., wrote the opinion. WE
CONCUR: H. VERN PAYNE, Justice, WILLIAM R. FEDERICI, Justice, WILLIAM RIORDAN,
Justice, SOSA, Senior Justice, respectfully dissents.
{*287} EASLEY, Chief
Justice.
{1} Snedeker, the former
President of Western New Mexico University, was indicted for evading gross
receipts taxes and for twenty-two counts of making false public vouchers. The
trial court decided that an affidavit for search warrant did not show probable
cause. The court suppressed evidence seized under that warrant, as well as
evidence seized under a subsequent warrant which relied upon information
obtained in the first search.
{2} The State appealed to the
Court of Appeals, which affirmed the decision of the trial court. We granted
certiorari and we reverse the decisions of both courts below.
{3} The issues are: (1)
whether the affidavit for the search warrant contained sufficient evidence to
give the magistrate probable cause to believe (a) that Snedeker obtained or
possessed the property in question in a manner which constituted a criminal
offense or, (b) that the property would be material in a criminal prosecution;
and (2) whether the allegations in the affidavit gave the magistrate probable
cause to believe the property was at Snedeker's residence.
{4} Officer Darrell Allred of
the New Mexico State Police executed the Affidavit for Search Warrant. He
described a certain house in Silver City and claimed there was property
concealed there. A list of fifty-three items was attached as an exhibit. It
included specific descriptions of 241 boxes of ammunition, representing
approximately 12,000 rounds of ammunition for a possible sixteen different
types of weapons, including: .44 magnum, .41 magnum, .357 magnum, .32 caliber,
.25 caliber, .41 caliber, .45 caliber, .44 caliber, .44 special, .38 caliber
automatic, .38 special, 9mm luger, .410 shotgun, 12 gauge shotgun, and 20 gauge
shotgun.
{5} The list also included:
pistol magazines for a Llama automatic .45 caliber and for a super automatic
.38, six pistol holsters, three pistol grips, 8 boxes of reloading slugs, a
barrel for a .32 Browning, a .32 caliber magazine, 15 packs of .38 special
reloads and numerous other items for use in reloading ammunition, ten boxes of
rifle slugs for use in 20 and 12 gauge shotguns, two large zipper cases and
nine small ones, and "all weapons" using a number of the specified
types of ammunition.
{6} The officer alleged in
the affidavit that the property was concealed at the house described, that it
had been obtained or possessed in a manner constituting a criminal offense, and
that it would be material evidence in a criminal prosecution.
{7} Other sworn statements of
the officer are set out at length:
During the course of an investigation into the purchase of
weapons and ammunition by Western New Mexico University I have obtained copies
of university warrants along with supporting documents for the purchase of
numerous quantities of ammunition. The total amount being listed on Exhibit A.
Substantial quantities of this ammunition are for weapons which are not owned
by Safety & Security of Western New Mexico University.
In addition, the quantity of ammunition is far in excess of
the use requirements of Safety & Security at Western New Mexico University.
Numerous items on Exhibit A are reloading supplies. My
investigation has revealed that Safety & Security of Western New Mexico
University does not reload ammunition.
Based on my investigation all this ammunition was ordered by
John H. Snedeker and was delivered to John H. Snedeker during the last three
fiscal years, being 1977-1978, 1978-1979, and 1979-1980.
I was personally present when an entire inventory of all
property belonging to Safety & S-curity [sic] [Security] was conducted on
July 10, 1980. None of this ammunition appeared in the property. No ammunition
was found in the inventory. Based on my investigation none of the ammunition
appears to be accounted for from the records of Western New Mexico University.
{*288} All the
purchases herein described were personally approved by John H. Snedeker and the
warrants and the purchase orders signed by him.
Based on my investigation none of the items on Exhibit A were
requested by anyone authorized to do so by Security personnal [sic] [personnel]
at Western New Mexico University.
I have personally checked with many of the local vendors in
Silver City, being Cosgroves, Gibson's, Silver Sports, Colby's and Western
Antiques.
Based on my investigation John H. Snedeker moved from the
official President's residence located at 500 College Avenue on or about June
30, 1980. His personal and household effects have been moved to the location
above described to the best of my knowledge. Many of the items on Exhibit A can
be identified by the vendors do [sic] [due] to price tag markings and other
descriptive writings which may still be on the cartons containing the
ammunition.
Based on my investigation, I believe that the items listed on
Exhibit A may constitute evidence of violations of the laws of the State of New
Mexico with regard to the payment of public monies.
The non-ammunition items of Exhibit A, based on my
investigation, can also be traced by the vendors should any price tag markings
still be legible.
{8} The affidavit was
submitted to Magistrate Scholl who then issued a search warrant. The warrant
was executed, resulting in the seizure of one hundred eighty-four items
consisting of firearms, various firearms supplies, and boxes of ammunition.
{9} Based on observations
made while executing the first warrant, a second warrant was obtained and
executed, resulting in the seizure of additional items.
{10} Snedeker moved to
suppress the evidence, claiming it was the product of illegal searches and
seizures. The trial court granted the motion and the Court of Appeals affirmed
the decision, holding that the first affidavit did not establish probable
cause, and that the second warrant was invalid because it was based upon
information obtained in the first illegal search. The Court of Appeals further
held that a third warrant issued during the investigation was invalid in that
it did not establish probable cause to believe that a criminal offense had been
committed.
{11} The fourth amendment to
the Constitution of the United States prohibits unreasonable searches and
seizures and is intended to protect the sanctity of a person's home and
privacy.
Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed.
746 (1886). In
Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58
L. Ed. 652 (1914) the Court first stated the judicially created exclusionary
rule to effectuate the rights against unlawful searches. The rule was held
applicable to the states in
Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684,
6 L. Ed. 2d 1081 (1961).
{12} Prior to
Mapp,
courts relied to a great extent on the principle that the use of illegally
obtained evidence would make the courts accomplices in the violation of the
Constitution,
McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87
L. Ed. 819 (1943);
see Nardone v. United States, 308 U.S. 338, 60 S. Ct.
266, 84 L. Ed. 307 (1939), which would contaminate the judicial process and
taint judicial integrity.
Elkins v. United States, 364 U.S. 206, 80 S.
Ct. 1437, 4 L. Ed. 2d 1669 (1960). However,
Mapp relied principally upon
the theory that excluding admissible evidence obtained by an unlawful search
would have the effect of deterring future unlawful police conduct.
{13} The debate over the
usefulness of the exclusionary rule and the principles behind its application
has gone on unabated. However, the United States Supreme Court in
Stone v.
Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976) put a number
of the controverted issues in focus. That Court held that the concept of
"preserving the integrity of the judicial process... has limited force as
a justification for the exclusion of highly probative evidence."
Id.
at 485, 96 S. Ct. at 3048 (footnote omitted). The Court stated: "The
primary justification for the exclusionary rule then is the
{*289}
deterrence of police conduct that violates Fourth Amendment rights."
Id.
at 486, 96 S. Ct. at 3048.
{14} The Court reiterated
that the rule is not a personal constitutional right, but a judicially created
remedy to safeguard fourth amendment rights through its deterrent effect. The
policies behind the rule are not absolute. "Rather, they must be evaluated
in light of competing policies."
Stone v. Powell, supra, at 488, 96
S. Ct. at 3049. The public interest in the determination of the truth at trial
must be weighed against the incremental benefit of applying the rule.
The costs of applying the exclusionary rule even at trial and
on direct review are well known: the focus of the trial, and the attention of
the participants therein, are diverted from the ultimate question of guilt or
innocence that should be the central concern in a criminal proceeding.
Moreover, the physical evidence sought to be excluded is typically reliable and
often the most probative information bearing on the guilt or innocence of the
defendant. * * * Application of the rule thus deflects the truthfinding process
and often frees the guilty. The disparity in particular cases between the error
committed by the police officer and the windfall afforded a guilty defendant by
application of the rule is contrary to the idea of proportionality that is
essential to the concept of justice. Thus, although the rule is thought to
deter unlawful police activity in part through the nurturing of respect for
Fourth Amendment values, if applied indiscriminately it may well have the
opposite effect of generating disrespect for the law and administration of
justice.
Id. at 489-91, 96 S. Ct. at 3050-51 (footnotes
omitted).
{15} Chief Justice Burger
wrote a strong concurring opinion in
Powell, charging that the rule
"has become a doctrinaire result in search of validating reasons";
that a more "clumsy" means of imposing sanctions is "difficult
to imagine"; that in certain instances its application it is
"sophisticated nonsense"; that it exacts "exorbitant costs from
society purely on the basis of speculation and unsubstantiated
assumptions"; that the rule is a "Draconian, discredited device in
its present absolutist form"; and that "persons who commit serious
crimes continue to reap the enormous and undeserved benefits" from the
rule.
Id. at 496-501, 96 S. Ct. at 3053-3056. Chief Justice Burger
discussed "overruling this judicially contrived doctrine -- or limiting
its scope to egregious, bad-faith conduct. * * *"
Id. at 501, 96 S.
Ct. at 3055. Justice White, in his dissent, stated that the exclusionary rule
constitutes a "senseless obstacle to arriving at the truth in many
criminal trials."
Id. at 538, 96 S. Ct. at 3072.
{16} It seems rather strange
that
Powell was decided in 1976, but Shepard's citations do not show
that the case has ever been cited in an appellate opinion in this state.
{17} The ultimate holding in
Powell
was that the exclusionary rule would have minimal application in federal habeas
corpus cases involving collateral attacks on state court convictions. The Court
concluded that prisoners would not be granted federal habeas corpus relief
where the states had provided opportunities for full and fair litigation of
fourth amendment claims of unconstitutional search and seizure.
{18} Thus, the decision in
Powell
was considerably narrower than the issues in our case. However, the language
was quite broad and warrants our attention at all levels of the judiciary as
these cases arise and proceed through the system.
Powell demonstrated
that the Supreme Court has forged numerous exceptions to the rule in order to
temper its harsh impact on society.
See California v. Minjares, 443 U.S.
916, 100 S. Ct. 9, 61 L. Ed. 2d 892 (1979).
1. The Affidavit for Search Warrant -- Probable Cause.
{19} A search warrant will
issue only on a sworn written statement of facts showing probable cause. N.M.R.
Crim.P. 17(a), N.M.S.A. 1978 (Repl. Pamp. 1980). Probable cause must be based
on substantial evidence.
{*290} N.M.R.
Crim.P. 17(f). The evidence used may be hearsay, provided (1) there is a
substantial basis for believing the source of the hearsay to be credible, and
(2) there is a substantial basis for believing that there is a factual basis
for the information furnished.
Id. This is essentially the two-prong
test enunciated in
Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L.
Ed. 2d 723 (1964), which was designed to prevent the magistrate from becoming a
"rubber stamp" for law enforcement officers.
{20} Where the information is
based upon the personal knowledge of the affiant, the magistrate need only
determine whether sufficient underlying circumstances exist to support the
affiant's belief.
United States v. Ventresca, 380 U.S. 102, 85 S. Ct.
741, 13 L. Ed. 2d 684 (1965). This is reflected in the requirement of Rule 17
that probable cause be based upon substantial evidence.
{21} In
State v. James,
91 N.M. 690, 694,
579 P.2d 1257, 1261 (N.M. Ct. App.),
cert. denied, 91
N.M. 751, 580 P.2d 972 (1978), the court said:
"Probable cause" means a reasonable ground for
belief of guilt. It exists where the facts and circumstances within the
knowledge of the officers, based on reasonably trustworthy information, is
sufficient to warrant a man of reasonable caution to believe that an offense
has been or is being committed. [Citations omitted.]
"Simply stated, the magistrate, from the verified facts
presented to him, must believe that the source is credible and that a factual
basis exists for the information furnished." State v. Gutierrez, 91
N.M. 542, 545, 577 P.2d 440, 443 (N.M.Ct. App.1978).
{22} Standards for the
determination of probable cause have been stated by this Court in
State v.
Bowers, 87 N.M. 74, 76,
529 P.2d 300, 302 (N.M.Ct. App.1974), where it was
held that "(1) only a probability of criminal conduct need be shown; (2)
there need be less vigorous proof than the rules of evidence require to
determine guilt of an offense; (3) common sense should control; (4) great
deference should be shown by courts to a magistrate's determination of probable
cause. [Citations omitted.]"
{23} In
United States v.
Ventresca, supra, the United States Supreme Court wrote:
[T]he Fourth Amendment's commands, like all constitutional
requirements, are practical and not abstract. If the teachings of the Court's
cases are to be followed and the constitutional policy served, affidavits for
search warrants, such as the one involved here, must be tested and interpreted
by magistrates and courts in a commonsense and realistic fashion * * *. A
grudging or negative attitude by reviewing courts toward warrants will tend to
discourage police officers from submitting their evidence to a judicial officer
before acting.
Id. 380 U.S. at 108, 85 S. Ct. at 746.
{24} When reviewing
affidavits in support of search warrants, a magistrate, and an appellate court,
must consider the affidavit as a whole.
State v. Duran, 90 N.M. 741,
568
P.2d 267 (N.M.Ct. App.1977). All direct and circumstantial evidence alleged, as
well as all reasonable inferences to be drawn from those allegations, should be
considered.
See State v. Luna, 92 N.M. 680,
594 P.2d 340 (N.M.Ct.
App.1979).
Accord State v. Bloom, 90 N.M. 192,
561 P.2d 465 (1977);
State
v. Vigil, 87 N.M. 345,
533 P.2d 578 (1975). A material fact need not be
proved by direct evidence. It is sufficient if there is evidence from which the
fact can properly be inferred.
Dull v. Tellez, 83 N.M. 126,
489 P.2d 406
(1971).
{25} As stated in
Bendorf
v. Volkswagenwerk Aktiengeselischaft, 90 N.M. 414, 419,
564 P.2d 619, 624
(N.M.Ct. App.),
cert. denied, 90 N.M. 636, 567 P.2d 485 (1977):
A reasonable inference is a conclusion arrived at by a
process of reasoning. This conclusion must be a rational and logical deduction
from facts admitted and established by the evidence, when those facts are
viewed in the light of common experience. [Citations omitted.]
{*291} [I]nferences
may properly be drawn from circumstantial evidence, and * * * a well connected
train of circumstances, as are present in this case, is as cogent of the
existence of a fact as any array of direct evidence, and may even outweigh
opposing direct testimony. [Citations omitted.]
{27} With these
well-established principles of law in mind, we now inquire into the state of
mind of Magistrate Scholl at the time the Affidavit For Search Warrant was
presented to him by Officer Allred. Scholl, who is not a lawyer, was charged
with examining the affidavit as a whole and determining if the facts and
circumstances recited therein, and all reasonable inferences deducible
therefrom, showed probable cause for him to believe that Snedeker obtained or
possessed the listed property in a manner which constituted a criminal offense
or that the property would be material in a criminal prosecution.
{28} The affidavit presented
to Scholl by Allred showed that Allred was an agent of the Criminal
Investigation Bureau of the New Mexico State Police. The facts and
circumstances shown in the instrument and some reasonable and obvious
inferences that probably influenced Scholl are as follows: Allred was
personally conducting an investigation into the purchase of weapons and
ammunition "by Western New Mexico University"; it was a thorough,
extensive inquiry; and Allred had obtained copies of University warrants and
other supporting documents, including purchase orders, showing the purchase of
quantities of ammunition. It may be inferred that he examined those documents
and knew which department was shown as the purchaser, the name of the person
who had signed the purchase orders and warrants, and the name of the person who
had signed the receipts for the deliveries of the property.
{29} The records inspected
showed that the President of the University had personally ordered and
personally received all the listed firearm supplies which included over 12,000
rounds of ammunition for approximately sixteen guns, enough to start a small
revolution. These were extraordinarily suspicious circumstances.
{30} Allred went to the
Safety & Security Department of the University, presumably because it was
the department shown on the warrants as the purchaser of the ammunition and
other supplies. He was present when an "entire inventory of
all
property belonging to Safety & Security was conducted." (Emphasis
added.) This inventory undoubtedly would include all types of guns used by the
department, as well as all types of ammunition and reloading equipment, if any.
The officer found none of the listed ammunition in the department. Although
there were reloading supplies listed on the documents, he found that the
University did not reload ammunition. This could be easily determined if no
reloading supplies or equipment were found in the inventory.
{31} Allred came to the
conclusion that the ammunition ordered was far in excess of the amount needed
by the department, which seems quite obvious. Knowing that the officer had seen
the type of guns used by the department, Scholl could have believed the
officer's statement that "substantial quantities of this ammunition are
for weapons which are not owned by Safety & Security." Furthermore, he
was probably suspicious of the sophistication of the weaponry, the number of
weapons indicated, the variation in types and sizes, and particularly the rifle
slugs for two sizes of shotguns. What possible use could a small college in a
small city have for shotguns shooting rifle slugs? Was Scholl to infer from
these circumstances that the University was declaring war on Mexico, or that
Snedeker was probably issuing false vouchers? Also, Scholl could easily infer
from the circumstances of this thorough investigation that the officer had
found all pertinent records and had examined them before he stated that none of
the ammunition "appears to be accounted for from the records" of the
University.
{32} The rest of the
allegations in the affidavit are corroborative. The key here is
{*292} whether Scholl, applying common sense
and reasonable caution, had probable cause to think the massive amount of
missing munitions indicated that a crime had been committed and that the man
who had signed the purchase orders and University checks used to pay for the
goods, and who had personally received the goods, must have possession of them.
Scholl thought so. His decision is entitled to great deference.
Bowers,
supra.
{33} To hold that this search
warrant is invalid would be to compound the toll that is being taken on society
and on the integrity of the courts by an absolutist application of the
exclusionary rule. Some of our judges have quite obviously been intimidated by
the supposed constitutional mandates and have applied loose logic and
rubber-stamp reactions when any small item appeared to be wrong.
{34} There are items in this
affidavit that do not by themselves show probable cause. The warrant is not
rendered invalid by the inclusion in the affidavit of some information that is
not supported by probable cause. The warrant may nevertheless stand if the
remaining allegations demonstrate probable cause.
United States v. Lucarz,
430 F.2d 1051 (9th Cir.1970).
{35} We hold that the
affidavit clearly showed probable cause that Snedeker had been making false
vouchers. We reverse the Court of Appeals and the trial court.
2. Probable Cause To Search Snedeker Home.
{36} A further requirement
for a valid search warrant is that the warrant be based on a showing of
probable cause that the items to be seized are located at the place to be
searched.
Zurcher v. Stanford Daily, 436 U.S. 547, 98 S. Ct. 1970, 56 L.
Ed. 2d 525 (1978);
Spinelli v. United States, 393 U.S. 410, 89 S. Ct.
584, 21 L. Ed. 2d 637 (1969);
Aguilar v. Texas, supra.
{37} We find that the
magistrate had probable cause to believe that Snedeker lived in the house to be
searched under the proposed warrant. However, Allred did not state specific
reasons to indicate why he considered that the property was located in that
house. This is not fatal to the validity of the warrant. The circumstances and
the reasonable inferences therefrom may be called upon to support the
magistrate's decision.
{38} In
United Stats v.
Mulligan, 488 F.2d 732, 736 (9th Cir.1973),
cert. denied, 417 U.S.
930, 94 S. Ct. 2640, 41 L. Ed. 2d 233 (1974), the court considered a similar
problem and stated:
Although there was no direct evidence that any evidence from
the burglary was inside Dinsio's residence, there was sufficient evidence from
which the magistrate could use his common sense to infer that the loot and
tools, if not buried, were probably in the house. [Citation omitted.]
{39} In
United States v.
Lucarz, supra, thirty-six envelopes containing $29,000 in cash were stolen
from the post office. The court held that the value and bulk of the stolen
items would sustain an inference that they were at the defendant's home. The
court in
Lucarz, supra, at 1055, said:
The situation here does not differ markedly from other cases
wherein this court and others, albeit usually without discussion, have upheld
searches although the nexus between the items to be seized and the place to be
searched rested not on direct observation, as in the normal search-and-seizure
case, but on the type of crime, the nature of the missing items, the extent of
the suspect's opportunity for concealment, and normal inferences as to where a
criminal would be likely to hide stolen property. United States v. Teller,
412 F.2d 374 (7th Cir. 1969); Aron v. United States, 382 F.2d 965 (8th
Cir. 1967); Anderson v. United States, 344 F.2d 792 (10th Cir. 1965); Porter
v. United States, 335 F.2d 602 (9th Cir. 1964).
{40} In the instant case, the
affidavit gave probable cause to believe that defendant still possessed a large
amount of valuable ammunition and supplies. It was a reasonable inference that
the valuable property would be kept at his house.
United States v. Rahn,
{*293} 511 F.2d 290 (10th Cir.),
cert.
denied, 423 U.S. 825, 96 S. Ct. 41, 46 L. Ed. 2d 42 (1975);
United
States v. Samson, 533 F.2d 721 (1st Cir. 1976).
{41} If stolen property is
not inherently incriminating and there is probable cause to believe a suspect
has committed the theft, the magistrate can assume that the property will be
found at the suspect's residence.
Rosillo v. State, 278 N.W.2d 747
(Minn. 1979).
See also United States v. Rahn, supra.
{42} We must always remember
that we are considering the probable thought processes of the magistrate as he
examined the affidavit for search warrant. He must have thought Snedeker had
the property. Would he keep it at his home, as suggested in the affidavit? If
not, what other inferences were available? Would Snedeker bury the valuable
munitions, place them in a bank vault, or leave them with someone else? The
existence of more than one inference does not
ipso facto deny the
magistrate a choice. He may choose a reasonable inference from among them and
his choice is to be sustained on appeal unless it is otherwise proved to be
suspect.
United States v. Lucarz, supra. See Spinelli v. United States,
supra.
{43} In our case the
magistrate had probable cause to think that Snedeker would have this material
in his house because of its value and bulk and because the presence of the
property there would not be incriminatory.
{44} Considering the facts
and reasonable inferences drawn from them, we find that the affidavit did
establish probable cause for issuance of the warrant. In this respect, we
reverse the Court of Appeals and the trial court.
{45} Both the trial court and
the Court of Appeals held that the evidence seized during the second search was
inadmissible under the "fruit of the poisonous tree" doctrine.
Nardone
v. United States, supra. The first search was constitutionally sound. We
reverse the Court of Appeals and the trial court concerning suppression of
evidence seized in the second search.
{46} The State did not take
issue with the holding of the Court of Appeals concerning evidence seized in
the third search. On this point we do not disturb the ruling of the Court of
Appeals.
{47} This cause is remanded
to the trial court for further proceedings consistent with this opinion.
WE CONCUR: PAYNE, Justice, FEDERICI, Justice, RIORDAN,
Justice.
SOSA, Senior Justice, respectfully dissents.
SOSA, Senior Justice, dissenting.
{49} I respectfully dissent.
I would affirm the decisions of the Court of Appeals and the trial court.
{50} I cannot join in the
majority opinion because I believe the affidavit for the first search warrant
was issued without probable cause. The State concedes that if the first warrant
was invalid, the remaining warrants are also invalid as "fruit of the
poisonous tree."
{51} Since the majority
opinion sets out at length the current law applicable to affidavits for search
warrants, I will review briefly only those principles of law which I feel this
affidavit fails to meet.
{52} The fourth amendment to
the United States Constitution was made applicable to the states through the
fourteenth amendment in
Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L.
Ed. 2d 1081 (1961). It guarantees "[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures. * * *" U.S. Const. amend. IV. Both the fourth amendment and
Article II, Section 10 of the New Mexico Constitution provide that no warrants
shall issue, but upon a showing of probable cause. U.S. Const. amend. IV.;
N.M.
Const., Art. II, § 10.
{53} Probable cause is
established by facts and circumstances within the knowledge of the officers,
based on reasonably trustworthy information, which are sufficient to warrant a
prudent man in believing that the
{*294} defendant
had committed or is committing a crime.
Draper v. United States, 358
U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959);
State v. James, 91 N.M.
690,
579 P.2d 1257 (Ct. App.),
cert. denied, 91 N.M. 751, 580 P.2d 972
(1978);
State v. Ramirez, 95 N.M. 202,
619 P.2d 1246 (Ct. App. 1980).
{54} A search warrant will
issue only on a sworn written statement showing probable cause based on
substantial evidence. N.M.R. Crim. P. 17(a) and (f), N.M.S.A. 1978 (Repl. Pamp.
1980). The standard for reviewing an affidavit is a common sense reading of the
affidavit as a whole.
State v. Duran, 90 N.M. 741,
568 P.2d 267 (Ct.
App. 1977);
Accord United States v. Ventresca, 380 U.S. 102, 85 S. Ct.
741, 13 L. Ed. 2d 684 (1965).
{55} The affidavit in the
instant case fails to establish probable cause for the following reasons:
(1) The primary defect in the affidavit is that it does not
state why Officer Allred believed the items to be seized were present at John
Snedeker's residence at the time the warrant was sought. Mere speculation and
inferences are not enough to establish probable cause. State v. Turkal,
93 N.M. 248, 599 P.2d 1045 (1979).
(2) The affidavit also fails to state that Officer Allred
believed Mr. Snedeker had committed a crime. I agree with the Court of Appeals
that nothing in the receipt of property by the president of a university
suggests any criminal activity. Even if the statement that the items were not
accounted for in university records were accepted, this does not support a
conclusion that the items were disposed of improperly.
(3) The test enunciated in Aguilar v. Texas, 378 U.S.
108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), which determines when the
evidence used to support an affidavit may be hearsay, was not met by the
affidavit in this case. Certain allegations by Officer Allred appear to be
based on hearsay or are otherwise unreliable since no factual basis is given
for the allegations. While it may be reasonable to infer that Officer Allred
personally inspected the records of the University, the affidavit gives one no
factual basis to believe he did so. Also, it fails to state which records were
examined, who interpreted them and what information such records would normally
contain.
(4) The affidavit fails to state that the items to be seized
were ordered for the Safety & Security Department of Western University. It
is not implicit in the affidavit that the items were not used in another
department of the University.
(5) I agree with the Court of Appeals that the allegation
that Mr. Snedeker signed the purchase orders does not show either that he was
not authorized to do so or that he converted the items to his own use.
{56} The majority opinion
lessens the necessity that a court issuing a warrant inquire as to the factual
basis and reliability of hearsay evidence used to support an affidavit for a
search warrant. At most, the majority requires "plausible" cause for
the issuance of a warrant.
{57} The majority correctly
set forth the law, but failed miserably on its application to the facts herein.
{58} For the foregoing
reasons, I respectfully dissent.