 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
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 5   filing date.

 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO

 8          Plaintiff-Appellant,

 9 v.                                                                   NO. 29,870

10 JERRY B. TRUJILLO, JR.,

11          Defendant-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Charles W. Brown, District Judge

14   Gary K. King, Attorney General
15   Santa Fe, NM
16   James W. Grayson, Assistant Attorney General
17   Albuquerque, NM

18 for Appellant

19 Hugh W. Dangler, Chief Public Defender
20 Nancy Hewitt, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellee


23                                 MEMORANDUM OPINION

24 BUSTAMANTE, Judge.
 1        The State appeals from the district court’s order granting Defendant’s motion

 2 to suppress evidence. This Court’s first notice proposed summary affirmance. The

 3 State filed a memorandum in opposition to the proposed disposition. We are not

 4 persuaded by the State’s arguments, and affirm the district court.

 5        The State argues that the judge who issued the search warrant had more than a

 6 substantial basis upon which to find probable cause to search the residence. The State

 7 points out that “only a probability of criminal conduct need be shown,” and “[i]t is

 8 sufficient if there is evidence from which the fact can properly inferred.” State v.

 9 Snedeker, 99 N.M. 286, 290, 657 P.2d 613, 617 (1982). [MIO 7] The State contends

10 that the affidavit requested the issuance of a warrant to search the residence

11 identified, followed by the officer’s assertion of probable cause to believe the

12 residence contained evidence of a crime. We disagree. While the affidavit did

13 identify the address of the residence where the officer spoke to the victim, and

14 asserted probable cause to believe a crime had occurred, it did not indicate why there

15 was probable cause to believe that the alleged crime occurred at the residence

16 identified.

17        The State further argues that the affidavit indicates that upon arrival at the

18 identified address, the officer spoke to the victim, who lived there with her


                                             2
 1 grandparents and Defendant. [MIO 8] However, that is not entirely accurate. While

 2 the affidavit indicates that the victim and her brother were adopted by and were living

 3 with her grandmother and step-grandfather, it does not state that the residence where

 4 the victim was being interviewed was actually the home of her grandparents, the

 5 victim’s home, or the place where the crime occurred.          Also, although both the

 6 victim, and a second alleged victim, indicated that the crimes occurred in the

 7 perpetrator’s bedroom, and evidence could be found there, there was no indication in

 8 the affidavit that the bedroom described was located in the very home where the

 9 officers were conducting their investigation. It is not enough that the affidavit assert

10 that evidence of a crime can be found in the residence to be searched. The affidavit

11 must assert facts to establish probable cause for believing why such evidence can be

12 found there. That is the problem with the affidavit in this case; the victim could have

13 been at anyone’s residence when the officer interviewed her. It would not be unheard

14 of for a victim or a concerned relative to call the police to another person’s home to

15 report the crime, particularly where the alleged sexual perpetrator lived in the victim’s

16 home.

17         We hold that the affidavit as a whole, together with reasonable inferences drawn

18 therefrom, did not provide a substantial basis for determining that there was probable


                                               3
 1 cause to believe that the evidence described in the affidavit could be found at the

 2 residence identified. See State v. Williamson, 2009-NMSC-039, ¶ 29, 146 N.M. 488,

 3 212 P.3d 376 (stating the standard of review on appeal); State v. Rubio, 2002-NMCA-

 4 007, ¶ 5, 131 N.M. 479, 39 P.3d 144 (filed 2001) (“Probable cause for the issuance

 5 of a search warrant must be established from within the four corners of the supporting

 6 affidavit.”). For these reasons, and those stated in the first notice of proposed

 7 summary disposition, we affirm the district court.

 8        IT IS SO ORDERED.



 9
10                                         MICHAEL D. BUSTAMANTE, Judge

11 WE CONCUR:


12
13 JAMES J. WECHSLER, Judge


14
15 RODERICK T. KENNEDY, Judge




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