 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellant,

 9 v.                                                            NO. 30,780

10 RENE BARRAZA MATA,

11          Defendant-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Thomas J. Hynes, District Judge

14 Gary K. King, Attorney General
15 M. Anne Kelly, Assistant Attorney General
16 Santa Fe, NM

17 for Appellant

18 Chief Public Defender
19 Santa Fe, NM

20 for Appellee


21                                 MEMORANDUM OPINION

22 KENNEDY, Judge.

23          The State appeals an order granting Defendant’s motion to suppress. We

24 proposed to affirm in a notice of proposed summary disposition, and the State has
 1 filed a memorandum in opposition. We remain unpersuaded by the State’s

 2 arguments and affirm.

 3        In its docketing statement, the State argued that the district court erred in

 4 granting Defendant’s motion to suppress because the affidavit in support of the

 5 warrant was sufficient to establish the knowledge and veracity or credibility of the

 6 informant or informants. [DS 2] In our notice of proposed summary disposition,

 7 we observed that a search warrant may only issue upon a finding of probable

 8 cause. See State v. Nyce, 2006-NMSC-026, ¶ 9, 139 N.M. 647, 137 P.3d 587,

 9 limited on other grounds by State v. Williamson, 2009-NMSC-039, ¶ 29, 146 N.M.

10 488, 212 P.3d 376; see also Rule 5-211 NMRA. We will uphold an issuing court’s

11 determination of probable cause “if the affidavit provides a substantial basis to

12 support a finding of probable cause.” Williamson, 2009-NMSC-039, ¶ 29. We do

13 not substitute our judgment for “that of the issuing court [but instead we]

14 determine whether the affidavit as a whole, and the reasonable inferences that may

15 be drawn therefrom, provide a substantial basis for determining that there is

16 probable cause to believe that a search will uncover evidence of wrongdoing.” Id.

17 In Williamson, our Supreme Court explained that “the substantial basis standard of

18 review is more deferential than the de novo review applied to questions of law, but




                                              2
 1 less deferential than the substantial evidence standard applied to questions of fact.”

 2 Id. ¶ 30.

 3        In our previous notice, we set forth the language of the affidavit prepared by

 4 Officer Carl Sexton and dated June 10, 2010, in support of the warrant. [RP 71-74]

 5 The affidavit states in part that:

 6        On 4/15/10 an informant said he/she had been collecting money and
 7        selling narcotics for various drug dealers . . . includ[ing] [Defendant].
 8        The source said the narcotics that Jeremiah Wright was selling were
 9        coming from [Defendant]. Wright is currently facing [trafficking
10        charges. [The informant] has seen ‘quantities of methamphetamine,
11        barrels of marijuana and large quantities of firearms’ at [Defendant’s
12        residence]. [Defendant] acquires guns from gang members and other
13        illegitimate sources in exchange for drugs. He/she said the guns are
14        collected throughout the year.

15        Officer Skinner informed me that a confidential and reliable informant
16        who is currently working on the task force informed him that he/she
17        was inside [Defendant’s] house approximately three weeks ago [and]
18        [t]he informant advised that he/she stated that they observed
19        [Defendant] hold[ing] a large quantity of marijuana which he was
20        trying to sell to the informant. The informant said Giovanni “Kaos”
21        Bautista . . . a gang member . . . is currently doing . . . work for
22        [Defendant].

23        On or about June 9, 2010, I received information from a confidential
24        and reliable informant that [Defendant] was in possession of and is
25        currently selling methamphetamine [and] the informant also advised
26        that [Defendant] is in possession of a black ‘assault’ rifle and two
27        ‘handguns.’ This informant has proven to be reliable twice in the
28        past.

29        The confidential and reliable informant called and informed me that
30        [Defendant] purchased approximately seven ounces of

                                              3
 1        methamphetamine from a ‘Theresa Velasquez’ and was selling it to
 2        unknown clients who stop at his house [.]

 3        On June 9, 2010[,] while conducting surveillance on [Defendant’]
 4        house at approximately 15:30 hours, Giovanni was seen conversing
 5        with [Defendant] in front of [Defendant’s] residence.

 6 [RP 73-74 (emphasis added)]

 7        We then proposed to agree with the district court that foregoing material is

 8 insufficient to support the magistrate’s probable cause determination because it

 9 failed to establish the basis of the informant’s knowledge, and it failed to

10 demonstrate the veracity or credibility of the informant. See State v. Cordova, 109

11 N.M. 211, 213, 784 P.2d 30, 32 (1989) (adopting the two-prong test formulated by

12 the “Aguilar-Spinelli test” articulated by the Unites States Supreme Court in

13 Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410

14 (1969), which requires the affidavit to include: (1) facts establishing an informant’s

15 “basis of knowledge” and (2) facts showing the informant’s “veracity” (internal

16 quotation marks omitted)). [RP 69-70]

17        As addressed in our previous notice, it is impossible to determine the

18 number of informants providing Sexton with information and thus we classify the

19 informant or informants jointly as “informant(s).” We then indicated that the basis

20 of the informant(s)’ knowledge was at best minimally established by the

21 informant(s)’ personal observation of the drugs and weapons in Defendant’s

                                              4
 1 possession. See State v. Whitley, 1999-NMCA-155, ¶ 4, 128 N.M. 403, 993 P.2d

 2 117, limited on other grounds by Williamson, 2009-NMSC-039, ¶ 29.

 3        Even assuming that the informant(s)’ personal observations were sufficient

 4 to establish the requisite knowledge, we then proposed to conclude that the

 5 information in the affidavit was insufficient to establish the informant(s)’ veracity

 6 or credibility. See generally State v. Knight, 2000-NMCA-016, ¶ 20, 128 N.M.

 7 591, 995 P.2d 1033, limited on other grounds by Williamson, 2009-NMSC-039, ¶

 8 29. Under the veracity or credibility prong, the affidavit must set forth sufficient

 9 facts for the issuing judge to independently determine either the inherent credibility

10 of an informant or the reliability of the informant’s information. See State v.

11 Steinzig, 1999-NMCA-107, ¶ 18, 127 N.M. 752, 987 P.2d 409, limited on other

12 grounds by Williamson, 2009-NMSC-039, ¶ 29. An informant’s veracity or

13 credibility may be established, among other ways, by showing that:

14        (1) the informant has given reliable information to police officers in
15        the past[,] (2) the informant is a volunteer citizen-informant[,] (3) the
16        informant has made statements against his or her penal interest[,] (4)
17        independent investigation by police corroborates informant’s
18        reliability or information given[,] and (5) facts and circumstances
19        disclosed impute reliability.

20 In re Shon Daniel K., 1998-NMCA-069, ¶ 12, 125 N.M. 219, 959 P.2d 553

21 (internal citations omitted), limited on other grounds by Williamson, 2009-NMSC-

22 039, ¶ 29.

                                              5
 1        In this case, the only statement arguably against penal interest was the

 2 informant’s general statement on April 15, 2010, that he/she had been selling an

 3 unspecified amount of narcotics to unnamed persons including Defendant. [RP 73]

 4 This statement was made months before the affidavit was submitted and is not

 5 enough to establish the requisite veracity or credibility. See State v. Barker, 114

 6 N.M. 589, 593, 844 P.2d 839, 843 (Ct. App. 1992 (holding that in order for a

 7 declaration against penal interest to establish an informant’s credibility “there must

 8 be information in the affidavit that tends to show that the informant would have

 9 had a reasonable fear of prosecution at the time he made the statement”).

10        As to historic reliability, the only statement suggesting reliability is the

11 general assertion that the informant has proven reliable twice in the past. [RP 74]

12 In our notice, we stated that we were unpersuaded this is enough to establish

13 credibility. See State v. Therrien, 110 N.M. 261, 263, 794 P.2d 735, 737 (Ct. App.

14 1990) (holding that an officer’s statement that “he knew the informant ‘to be

15 reliable’” is insufficient to establish credibility (internal quotation marks omitted)),

16 overruled on other grounds by Barker, 114 N.M. at 594, 844 P.2d at 844; cf.

17 Cordova, 109 N.M. at 217-18, 784 P.2d at 36-37 (finding a confidential informant

18 to be credible based upon the affiant’s statement that the informant had provided

19 information in the past which the affiant found to be true and correct from personal


                                               6
 1 knowledge and investigation); Steinzig, 1999-NMCA-107, ¶ 18 (noting that an

 2 informant’s reliability may be established by showing that the informant has

 3 previously given police officers reliable information). Finally, we concluded that

 4 the affidavit fails to disclose any information indicating corroboration by

 5 independent investigation or any history of cooperation by the informant(s) with

 6 law enforcement except the statement that someone named “Giovanni” was seen

 7 conversing with Defendant in front of Defendant’s home. [RP 74]

 8        In its memorandum in opposition, the State admits that the affidavit is “not a

 9 model of clarity.” [MIO 5] However, it then argues that, taken as a whole the

10 affidavit provides a substantial basis to support a finding of probable cause. [MIO

11 5-11] We disagree.

12        First, contrary to the State’s contentions, we disagree that the analysis

13 contained in State v. Snedeker, 99 N.M. 286, 657 P.2d 613 (1982), and State v.

14 Wisdom, 110 N.M. 772, 800 P.2d 206 (Ct. App. 1990), overruled on other grounds

15 by Barker, 114 N.M. at 594, 844 P.2d at 844, warrants a conclusion that the

16 affidavit in this case is sufficient. [MIO 6-7] In Snedeker the affiant did not even

17 rely on information provided by an informant. See 99 N.M. at 287-88, 657 P.2d at

18 614-15. In Wisdom, the affidavit in support of the warrant relies on information

19 provided by an informant but it also establishes the informants’ veracity or


                                              7
 1 credibility by stating that the informants supplying information “have been known

 2 to affiant to be reliable having given information on at least three occassions [sic]

 3 [occasions] which [sic] [that] has lead [sic] [led] to siezures [sic] [seizures] of

 4 controlled substances and recovery of stolen property and/or arrest of suspect.”

 5 110 N.M. at 776, 800 P.2d at 210 (alterations in the original). In comparison, the

 6 language in this case that one of the informants “has proven to be reliable twice in

 7 the past” and the statement calling that informant, or possibly a different informant

 8 “confidential and reliable” does not establish the requisite veracity or credibility.

 9 [MIO 8] See Therrien, 110 N.M. at 263, 794 P.2d at 737 (holding that an officer’s

10 statement that “he knew the informant ‘to be reliable’” is insufficient to establish

11 credibility).

12        In its memorandum in opposition, the State also suggests that the

13 information in the affidavit was sufficiently corroborated. [MIO 8-9] We

14 disagree. As previously stated the only “corroboration” was the officer’s

15 observation that Defendant was seen talking with Baustista, a known drug dealer in

16 front of Defendant’s residence. [MIO 8] We disagree that the officer’s

17 observation of one conversation in front of Defendant’s residence, without any

18 information regarding the substance of that conversation, constitutes corroboration




                                               8
 1 of the informant(s)’ information that Baustista was working for Defendant. [MIO

 2 8]

 3        In conclusion, the State concedes that the affiant “did not strictly state the

 4 basis of knowledge and veracity of each informant” but it then argues that the

 5 information, taken as a whole “was sufficient information for a detached and

 6 neutral judge to determine that there was probable cause to believe Defendant had

 7 drugs and weapons at his residence.” [MIO 11] We disagree.

 8        As discussed at length in our notice of proposed summary disposition,

 9 considering the affidavit as a whole exposes numerous weaknesses: some of the

10 information is almost two months old; it is impossible to determine whether all of

11 the information was provided by the same informant or whether one informant

12 provided the information on April 15, another spoke with Officer Skinner, and a

13 third provided the information on June 9; and it is not clear whether large portions

14 of the actions attributed to Defendant were even observed by the informant(s) or

15 whether the informant(s) merely obtained the information from other sources.

16 Thus, we remain of the opinion that reviewing the affidavit as a whole, including

17 all the reasonable inferences drawn therefrom, fails to provide “a substantial basis

18 to support a finding of probable cause.” Williamson, 2009-NMSC-039, ¶ 29.




                                              9
1 CONCLUSION

2       For the reasons set forth above as well as those discussed in our notice of

3 proposed summary disposition, we affirm the district court’s order granting

4 Defendant’s motion to suppress.

5       IT IS SO ORDERED.



6
7                                       RODERICK T. KENNEDY, Judge

8 WE CONCUR:



 9
10 CELIA FOY CASTILLO, Chief Judge



11
12 JONATHAN B. SUTIN, Judge




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