         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-039

Filing Date: June 25, 2009

Docket No. 31,174

STATE OF NEW MEXICO,

       Plaintiff-Petitioner,

v.

JULIEN HOLT WILLIAMSON,

       Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Ralph D. Shamas, District Judge

Gary K. King, Attorney General
James W. Grayson, Assistant Attorney General
Santa Fe, NM

for Petitioner

Jones Witt Law Firm
Scott Douglas Jones Witt
Roswell, NM

for Respondent

                                         OPINION

MAES, Justice.

{1}     In this appeal, the State claims that the Court of Appeals improperly concluded that
the search warrant issued by a district court judge (issuing court) was unsupported by
probable cause, and therefore, improperly affirmed the decision of the subsequent district
court (suppressing court) to suppress evidence seized pursuant to the search warrant.
Specifically, the State argues that the Court of Appeals erroneously: (1) applied a de novo
standard of review to the issuing court’s determination of probable cause; and (2) concluded
that, under the circumstances of the present case, the drug-sniffing dog’s failure to alert to

                                              1
the presence of narcotics fatally undermined the issuing court’s determination of probable
cause. State v. Williamson, 2008-NMCA-096, ¶¶ 2, 8-9, 144 N.M. 522, 188 P.3d 1273. We
conclude that an issuing court’s determination of probable cause should not be reviewed de
novo but, rather, must be upheld if the affidavit provides a substantial basis to support a
finding of probable cause. We further conclude that the facts alleged in the search warrant
affidavit adequately explained the drug-sniffing dog’s failure to alert and provided a
substantial basis for the issuing court’s determination of probable cause. Accordingly, we
reverse the judgment of the Court of Appeals and remand the case to the district court for
further proceedings.

I.     FACTS AND PROCEDURAL HISTORY

{2}      The affidavit submitted in support of the first search warrant alleged the following
facts. On October 25, 2005, Julien Holt Williamson (Defendant) brought a package into a
UPS Store located on East College Street in Roswell, New Mexico. Defendant informed the
store manager, Jennifer Ary, that he wished to send the package to Jesse Gomez in Brooklyn,
New York. Defendant appeared to be nervous, and in response to Ary’s inquiry as to the
contents of the package, Defendant stated that “he did not know” what was inside of the box.
When Ary informed Defendant that the package would have to be opened to ascertain its
contents, Defendant explained that the box contained a book which he was sending to his
son. Although Defendant had mailed packages from this UPS Store before, “this was the
first time he appeared nervous and stated he did not know what was in his package.”

{3}    Ary “did not feel right about the package,” and consequently, she opened it after
Defendant had left the store. Inside she found a clear plastic bag, which appeared to be
vacuum sealed, containing two containers, a Crystal Light cylinder and a Ferrero box, both
wrapped in gray duct tape. Ary contacted the Roswell Police Department to report the
suspicious package.

{4}     Sergeant Eric Brackeen, a certified law enforcement officer assigned to the Chaves
County Metro Narcotics Task Force Division of the Roswell Police Department, responded
to Ary’s call. Sergeant Brackeen noticed that the “[Crystal] Light container was crunched
in, apparently from the bag being vacuum sealed.” He summoned canine handler, Detective
Jimmy Preston, and narcotics detection dog, Coro, to inspect the package for the presence
of narcotics. Coro sniffed the package, but failed to indicate a positive response for the
presence of narcotics.

{5}     Despite Coro’s failure to alert, Sergeant Brackeen averred that, on the basis of his
professional training and eleven years of law enforcement experience, he knows that “often
times narcotics are packaged in unusual containers, wrapped with duct tape, and vacuum
sealed, to make the narcotics less detectable by narcotic detection canines,” and additionally,
that “narcotics are often mailed to other places using carriers such as UPS.” Accordingly,
Sergeant Brackeen believed that probable cause existed to issue a search warrant for the
package.

                                              2
{6}     The issuing court issued the search warrant. When Sergeant Brackeen executed the
search warrant, he found 1.95 ounces of marijuana inside of the Crystal Light and Ferrero
containers. Based on this evidence, Sergeant Brackeen procured a second search warrant
to search Defendant’s residence for illegal narcotics and paraphernalia. When the second
search warrant was executed, drug paraphernalia was found in Defendant’s home.
Thereafter, Defendant was charged by criminal information with possession of marijuana
with intent to distribute in violation of NMSA 1978, Section 30-31-22 (2005), and
possession of drug paraphernalia in violation of NMSA 1978, Section 30-31-25.1 (2001).

{7}      Prior to trial, Defendant moved to suppress the marijuana and drug paraphernalia
evidence, claiming that it had been obtained “in violation of his constitutional rights to be
free from unreasonable search and seizure under the Fourth Amendment [to] the United
States Constitution and Article 2, Section 10 of the New Mexico Constitution.” Defendant
argued that the marijuana evidence should be suppressed because the affidavit submitted in
support of the first search warrant failed to set forth sufficient facts to establish probable
cause. Defendant argued that the drug paraphernalia evidence also should be suppressed as
fruit of the poisonous tree. The suppressing court granted Defendant’s motion, concluding
that “the negative sniff by the detection dog in this case refuted and even eliminated any
suspicion that otherwise existed by reason of the pre-warrant occurrences and observations
at the UPS store.”

{8}     The Court of Appeals, in a divided opinion, affirmed the decision of the suppressing
court. Williamson, 2008-NMCA-096, ¶ 13. The Court stated that, “[i]f narcotics detection
dogs in fact are extremely reliable in discriminating narcotics from other substances, then
an unexplained failure to alert will significantly, and in marginal cases may fatally,
undermine an otherwise sufficient showing in support of a warrant.” Id. ¶ 7. The Court
concluded that, prior to Coro’s failure to alert, it was reasonable to infer that the package
contained embarrassing or incriminating material, given Defendant’s nervous and evasive
behavior, and the suspicious manner in which the containers were packaged. Id. ¶ 8.
“However, after Coro failed to alert, and in the absence of a satisfactory explanation of why
Coro failed to alert, the inference that the package contained drugs was significantly
dispelled.” Id.

{9}     The Court rejected the State’s claim that Sergeant Brackeen’s sworn statement that
“often times narcotics are packaged in unusual containers, wrapped with duct tape, and
vacuum sealed, to make the narcotics less detectable by narcotic detection canines,”
adequately explained Coro’s failure to alert. See id. ¶ 9. The Court determined that this
statement was not an expression of Sergeant Brackeen’s opinion that duct-taping and
vacuum-sealing successfully prevented Coro from being able to detect the odor of narcotics,
but rather, was “a description of the practice of drug traffickers who commonly believe
(rightly or wrongly) that vacuum-sealing will make narcotics less detectable.” Id. Without
a more definite and detailed explanation, the Court concluded that the State had failed to
dispel the “strong negative inference arising from Coro’s failure to alert.” Id.


                                              3
{10} Even without this negative inference, the Court concluded that the remaining
evidence, although certainly suspicious, was insufficient to establish probable cause. The
Court noted that “the probable cause inquiry should be ‘particularly exacting’ when the
conduct observed by an officer is consistent with lawful activity, and this is so ‘regardless
of an officer’s qualifications and experience.’” Id. ¶ 10 (quoting State v. Nyce, 2006-NMSC-
026, ¶ 14, 139 N.M. 647, 137 P.3d 587). Because Defendant’s conduct was lawful and
because there was no evidence linking Defendant to illegal drugs, the Court concluded that
“the facts known to [Sergeant Brackeen] prior to the dog sniff did not constitute probable
cause to believe that the contents of the package were illegal drugs.” Id.

{11} Judge Sutin dissented from the majority opinion. Id. ¶¶ 15-27. He agreed with the
majority that “the State has the burden to explain [a canine] alert failure, if it can, and the
failure to satisfy that burden ought to be a part of the mix in considering the evidentiary
sufficiency for probable cause for a search warrant.” Id. ¶ 18. However, because the record
was inadequate in this case to determine what weight, if any, to attribute to Coro’s alert
failure, he believed that it should be weighed as a neutral factor. Id. ¶ 24. In light of the
deference given “to a magistrate’s decision, and to an officer’s observations, experience, and
training,” Judge Sutin concluded that the remaining facts set forth in the affidavit were
sufficient to establish probable cause. Id. ¶ 25 (internal quotation marks and citation
omitted). Accordingly, he would have upheld the search warrant and denied Defendant’s
motion to suppress.

{12} We granted the State’s petition for writ of certiorari pursuant to NMSA 1978, Section
34-5-14(B) (1966) and Rule 12-502 NMRA to determine: (1) whether the Court of Appeals
applied the proper standard of review to the issuing court’s determination of probable cause
and (2) the impact, if any, that the canine alert failure had upon the issuing court’s
determination probable cause. See State v. Williamson, 2008-NMCERT-007, 144 N.M. 594,
189 P.3d 1216.

II.    DISCUSSION

A.      Standard of Review

{13} We first address the proper standard of review to apply to an issuing court’s
determination that the facts alleged in an affidavit are sufficient to establish probable cause.
The State claims that, pursuant to precedent established by both the United States Supreme
Court and this Court, deference must be shown to an issuing court’s determination of
probable cause. See, e.g., Illinois v. Gates, 462 U.S. 213, 237 (1983); State v. Snedeker, 99
N.M. 286, 290, 657 P.2d 613, 617 (1982). Defendant responds that, under New Mexico law,
reviewing courts must apply a de novo standard of review to an issuing court’s determination
that the facts alleged in the affidavit are sufficient to establish probable cause. See, e.g.,
State v. Nyce, 2006-NMSC-026, ¶ 8, 139 N.M. 647, 137 P.3d 587.



                                               4
{14} “The Fourth Amendment to the United States Constitution and [A]rticle II, [S]ection
10 of the New Mexico Constitution both require probable cause to believe that a crime is
occurring or seizable evidence exists at a particular location before a search warrant may
issue.” Id. ¶ 9.

                 By injecting a neutral magistrate into the process . . . the law provides
        a layer of protection from unreasonable searches and seizures. By compelling
        [law enforcement officers] to show to a neutral magistrate facts from which
        that impartial judicial representative could conclude that probable cause
        exists to justify [a search], the law enforcement organizations of this state are
        prevented from allowing the competitive pressures of fighting crime to
        compromise their judgment about whether or not to carry out a given search.

State v. Gomez, 1997-NMSC-006, ¶ 38, 122 N.M. 777, 932 P.2d 1; see also United States
v. Ventresca, 380 U.S. 102, 105-06 (1965) (“An evaluation of the constitutionality of a
search warrant should begin with the rule that the informed and deliberate determinations
of magistrates empowered to issue warrants . . . are to be preferred over the hurried action
of officers . . . who may happen to make arrests.”) (internal quotation marks and citation
omitted). Accordingly, both the Fourth Amendment to the United States Constitution and
Article II, Section 10 of the New Mexico Constitution express a clear preference in favor of
the warrant process.

{15} Defendant claims a violation of both his Fourth Amendment and Article II, Section
10 rights to be free from unreasonable searches and seizures. We begin our analysis with
an examination of the standard of review for the sufficiency of search warrant affidavits
mandated by the Fourth Amendment to the United States Constitution, and then proceed to
consider whether the appellate courts of this state have adopted a more stringent standard of
review under New Mexico law. Cf. Gomez, 1997-NMSC-006, ¶¶ 19-21 (“Under the
interstitial approach, the court asks first whether the right being asserted is protected under
the federal constitution. If it is, then the state constitutional claim is not reached. If it is not,
then the state constitution is examined.”).

1.      Standard of Review Under the Fourth Amendment to the United States
        Constitution

{16} In Ventresca, the United States Supreme Court held that affidavits submitted in
support of search warrants “must be tested and interpreted by magistrates and courts in a
commonsense and realistic fashion.” Ventresca, 380 U.S. at 108. The Court noted that
search warrant affidavits “are normally drafted by nonlawyers in the midst and haste of a
criminal investigation,” and that “[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. The Court cautioned, however, that



                                                 5
       [t]his is not to say that probable cause can be made out by affidavits which
       are purely conclusory, stating only the affiant’s or an informer’s belief that
       probable cause exists without detailing any of the underlying circumstances
       upon which that belief is based. Recital of some of the underlying
       circumstances in the affidavit is essential if the magistrate is to perform his
       detached function and not serve merely as a rubber stamp for the police.
       However, where these circumstances are detailed, where reason for crediting
       the source of the information is given, and when a magistrate has found
       probable cause, the courts should not invalidate the warrant by interpreting
       the affidavit in a hypertechnical, rather than a commonsense, manner.
       Although in a particular case it may not be easy to determine when an
       affidavit demonstrates the existence of probable cause, the resolution of
       doubtful or marginal cases in this area should be largely determined by the
       preference to be accorded to warrants.

Id. at 108-09 (internal quotation marks and citations omitted).

{17} Thus, under the Fourth Amendment to the United States Constitution, “after-the-fact
scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo
review. A magistrate’s determination of probable cause should be paid great deference by
reviewing courts.” Gates, 462 U.S. at 236 (internal quotation marks and citation omitted).
A deferential standard of review discourages police officers from conducting

       warrantless searches, with the hope of relying on consent or some other
       exception to the Warrant Clause that might develop at the time of the search.
       In addition, the possession of a warrant by officers conducting an arrest or
       search greatly reduces the perception of unlawful or intrusive police conduct,
       by assuring the individual whose property is searched or seized of the lawful
       authority of the executing officer, his need to search, and the limits of his
       power to search.

Id. (internal quotation marks and citation omitted). Accordingly, an issuing court’s
determination of probable cause must be upheld “so long as the magistrate had a substantial
basis for . . . conclud[ing] that a search would uncover evidence of wrongdoing, the Fourth
Amendment requires no more.” Id. (alteration in original) (internal quotation marks and
citation omitted); see also Massachusetts v. Upton, 466 U.S. 727, 732 (1984) (reversing the
judgment of the Massachusetts Supreme Judicial Court because that Court had “erred in
failing to grant any deference to the decision of the Magistrate to issue a warrant”).

{18} In the present case, it is undisputed that the Court of Appeals applied a de novo
standard of review to the issuing court’s determination of probable cause. See Williamson,
2008-NMCA-096, ¶ 2 (“We review the district court’s order under the standards set out in
[Nyce, 2006-NMSC-026, ¶ 8].”); see also Nyce, 2006-NMSC-026, ¶ 8 (“We apply a de novo
standard of review to a magistrate’s determination that an affidavit for a search warrant

                                             6
alleges facts sufficient to constitute probable cause.”). The de novo standard of review,
however, is inconsistent with the protections afforded by the Fourth Amendment to the
United States Constitution. Accordingly, to the extent that the Court of Appeals concluded
that Defendant’s Fourth Amendment rights had been violated, the Court “erred in failing to
grant any deference to the decision of the [issuing court] to issue a warrant.” Upton, 466
U.S. at 732.

2.     Standard of Review Under New Mexico Law

{19} Having concluded that, under the Fourth Amendment to the United States
Constitution, the reviewing court must defer to the issuing court’s determination of probable
cause and uphold the validity of the search warrant if it is supported by a substantial basis,
we next address the proper standard of review under New Mexico law. Defendant claims
that, because this Court and the Court of Appeals previously have reviewed the sufficiency
of search warrant affidavits de novo, the appellate courts of this state have adopted the de
novo standard of review as a matter of state law. See, e.g., Nyce, 2006-NMSC-026, ¶ 8;
State v. Gonzales, 2003-NMCA-008, ¶ 13, 133 N.M. 158, 61 P.3d 867. The State responds
that, although there is “confusion surrounding the proper standard of review for warrants in
New Mexico,” deference must be afforded to the issuing court’s determination of probable
cause in order to effectuate the State’s strong preference in favor of the warrant process. See
Snedeker, 99 N.M. at 290, 657 P.2d at 617.

{20} Our jurisprudence reveals that we have been inconsistent in the articulation and
application of the standards that guide our review of an issuing court’s determination of
probable cause. For example, in Snedeker we observed that “[p]robable cause must be based
on substantial evidence,” and delineated the following standard of review: “(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.” Snedeker, 99 N.M. at 289-90, 657 P.2d at 616-17 (emphasis added)
(internal quotation marks and citation omitted); see also State v. Cordova, 109 N.M. 211,
218, 784 P.2d 30, 37 (1989) (noting “the great deference that we accord to an issuing court’s
determination of probable cause”); State v. Steinzig, 1999-NMCA-107, ¶ 14, 127 N.M. 752,
987 P.2d 409 (“A determination by the judge or magistrate who issued the search warrant
that probable cause supports the issuance of the warrant, as a general rule, is given deference
by a reviewing court.”). In Snedeker, the Court emphasized that “[w]hen reviewing
affidavits in support of search warrants, a magistrate, and an appellate court, must consider
the affidavit as a whole. All direct and circumstantial evidence alleged, as well as all
reasonable inferences to be drawn from those allegations, should be considered.” Snedeker,
99 N.M. at 290, 657 P.2d at 617 (citation omitted).

{21} In Snedeker, we adopted the logic and reasoning of the United States Supreme Court
in Ventresca, holding that affidavits in support of search warrants “must be tested and
interpreted by magistrates and courts in a commonsense and realistic fashion,” because “[a]

                                              7
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.” Snedeker,
99 N.M. at 290, 657 P.2d at 617 (quoting Ventresca, 380 U.S. at 108); see also State v.
Perea, 85 N.M. 505, 507, 513 P.2d 1287, 1289 (Ct. App. 1973) (adopting the Ventresca
standard to review the sufficiency of a search warrant affidavit). Accordingly, in Snedeker,
we held that New Mexico’s strong preference in favor of the warrant process mandated the
application of a deferential standard of review.

{22} Recently, however, we applied a “de novo standard of review to a magistrate’s
determination that an affidavit for a search warrant alleges facts sufficient to constitute
probable cause.” Nyce, 2006-NMSC-026, ¶ 8. In Nyce, we stated that, although “we give
deference to a magistrate’s decision, and to an officer’s observations, experience, and
training, their conclusions must be objectively reasonable under all the circumstances.” Id.
¶ 11. Likewise, the Court of Appeals consistently has applied a deferential standard of
review to the factual findings of the issuing court, but a de novo standard of review to its
ultimate determination of probable cause. See, e.g., Gonzales, 2003-NMCA-008, ¶ 13; State
v. Knight, 2000-NMCA-016, ¶ 14, 128 N.M. 591, 995 P.2d 1033; State v. Duquette,
2000-NMCA-006, ¶ 11, 128 N.M. 530, 994 P.2d 776; In re Shon Daniel K., 1998-NMCA-
069, ¶ 8, 125 N.M. 219, 959 P.2d 553.

{23} In Nyce, we did not acknowledge, much less repudiate, the deferential standard of
review announced in Snedeker. To reconcile the apparent conflict between Snedeker and
Nyce, however, we review our case law concerning the sufficiency of search warrant
affidavits and the appropriate standard of review.

{24} The de novo standard of review applied in Nyce appears to derive from three primary
sources. The first source is State v. Attaway, 117 N.M. 141, 144-46, 870 P.2d 103, 106-08
(1994), wherein we clarified the standard of review to be applied to a district court’s
determination that exigent circumstances existed to excuse compliance with the knock-and-
announce rule, which requires law enforcement officers to knock and announce their
presence prior to entering a home to execute a search warrant. We determined that the
constitutionality of such a search entails a two-part inquiry: first, we must review “the
historical facts that animate the transaction to be evaluated,” and second, we must apply the
law to the facts to determine whether exigent circumstances existed. Id. at 144, 870 P.2d at
106. We concluded that the first part of the inquiry “is purely factual, and a trial court is to
be given wide latitude in determining that an historical fact has been proven. We review
these purely factual assessments to determine if the fact-finder’s conclusion is supported in
the record by substantial evidence.” Id. The second part of the inquiry, however, is a mixed
question of law and fact, and as such, the standard of review depends on whether the
“concerns of judicial administration—efficiency, accuracy, and precedential weight” make
it more appropriate for the district courts or the appellate courts to resolve the essential
question on its merits. Id. (quoting United States v. McConney, 728 F.2d 1195 (9th Cir.) (en
banc), cert. denied, 469 U.S. 824 (1984)). We determined that “the mixed question involved


                                               8
in determining exigency lies closest in proximity to a conclusion of law, and [held] that such
determinations are to be reviewed de novo.” Id. at 145-46, 870 P.2d at 107-08.

{25} The Court of Appeals subsequently relied on Attaway in In re Shon Daniel K., 1998-
NMCA-069, ¶ 8, to support the proposition that, “[i]n reviewing the sufficiency of an
affidavit submitted in support of the issuance of a search warrant, we apply a de novo
standard of review.” See also Duquette, 2000-NMCA-006, ¶ 11 (applying de novo standard
of review pursuant to In re Shon Daniel K.); Knight, 2000-NMCA-016, ¶ 14 (same); State
v. Whitley, 1999-NMCA-155, ¶ 3, 128 N.M. 403, 993 P.2d 117 (same). The Court of
Appeals’ reliance on Attaway was misplaced for several reasons. First, although the search
in Attaway was conducted pursuant to a search warrant, the issue before the Court was not
the sufficiency of the facts alleged in the search warrant affidavit, but rather, whether exigent
circumstances existed to excuse compliance with the knock-and-announce rule. Second,
although we stated in Attaway that we have “applied de novo review to . . . the validity of
search warrants,” Attaway, 117 N.M. at 145, 870 P.2d at 107 (citing Snedeker, 99 N.M. at
290, 657 P.2d at 617), this statement was inaccurate and misleading, because as previously
explained, in Snedeker, we applied a deferential standard of review to the validity of search
warrants. See Snedeker, 99 N.M. at 290, 657 P.2d at 617. Lastly, in Attaway, we did not
hold that all mixed questions of law and fact must be reviewed de novo. We simply held
that, to determine the appropriate standard of review, the reviewing court must balance
interests of judicial administration and public policy. In Snedeker, we balanced these
interests to conclude that New Mexico’s strong preference in favor of the warrant process
necessitates the adoption of a deferential standard of review. Accordingly, despite our broad
language in Attaway, none of the principles articulated therein support the application of a
de novo standard of review to an issuing court’s determination of probable cause.

{26} The second source for the de novo standard of review is State v. Wisdom, 110 N.M.
772, 774, 800 P.2d 206, 208 (Ct. App. 1990), overruled on other grounds by State v. Barker,
114 N.M. 589, 594, 844 P.2d 839, 844 (Ct. App. 1992). In Wisdom, the defendant claimed
that the probable cause determination of the suppressing court was entitled to deference and
should be upheld “if it is supported by substantial evidence in the record.” Id. The Court
of Appeals disagreed, concluding that

        the district court and this court are engaged in the same exercise: a review
        of the sufficiency of the affidavits submitted to the magistrate court judge in
        support of the affidavits in question. Under these circumstances, both the
        district court and this court must give those affidavits a common sense
        reading and determine whether the magistrate court judge was entitled to find
        probable cause.
Id. Accordingly, the Court concluded that the probable cause determination of the
suppressing court, as opposed to the issuing court, was not entitled to deference and must
be reviewed de novo. Id.



                                               9
{27} The third source for the de novo standard of review is New Mexico case law
concerning the constitutionality of searches conducted without a warrant. For example, in
Wisdom, although the Court of Appeals noted that “the determination of probable cause by
the issuing [court] is entitled to deference,” it also stated that “the ultimate question of
whether the contents of the affidavit are sufficient is a conclusion of law” subject to de novo
review. Wisdom, 110 N.M. at 774, 800 P.2d at 208; see also Steinzig, 1999-NMCA-107, ¶
15 (citing Wisdom for the proposition that “[t]he ultimate decision, however, as to whether
the contents of an affidavit are legally sufficient is a question of law which we review de
novo”). In support of the latter proposition, the Court relied on case law holding that “the
question of probable cause is a question of law.” Ulibarri v. Maestas, 74 N.M. 516, 520,
395 P.2d 238, 240 (1964); see also State v. Marquez, 103 N.M. 265, 266, 705 P.2d 170, 171
(Ct. App. 1985) (“[T]he question of probable cause is one of law.”). Ulibarri and Marquez,
however, involved warrantless searches. In the context of warrantless searches, we review
the suppressing court’s application of the law to the facts de novo because the suppressing
court and this Court “are engaged in the same exercise,” Wisdom, 110 N.M. at 774, 800 P.2d
at 208, namely, conducting an after-the-fact scrutiny to determine whether the warrantless
search was justified by probable cause. Under such circumstances, “[i]t is the duty of
appellate courts to shape the parameters of police conduct by placing the constitutional
requirement of reasonableness in factual context and we can discharge that duty only through
meaningful review of lower court determinations.” Attaway, 117 N.M. at 145, 870 P.2d at
107; see also Ornelas v. United States, 517 U.S. 690, 697, 699 (1996) (applying de novo
review to warrantless searches because “the legal rules for probable cause and reasonable
suspicion acquire content only through application. Independent review is therefore
necessary if appellate courts are to maintain control of, and to clarify, the legal principles”).

{28} Accordingly, in the context of warrantless searches, de novo review is appropriate.
However, for the reasons explained in Snedeker, de novo review is inappropriate when
police officers submit their evidence to a neutral and detached magistrate and procure a
search warrant prior to initiating a search. Cf. Ornelas, 517 U.S. at 697 (holding that
warrantless searches are reviewed de novo, whereas searches conducted pursuant to a search
warrant are reviewed under a less demanding standard). This is because deference to the
warrant process encourages police officers to procure a search warrant, thereby providing
“a layer of protection from unreasonable searches and seizures” and preventing “the
competitive pressures of fighting crime to compromise [the officers’] judgment about
whether or not to carry out a given search.” Gomez, 1997-NMSC-006, ¶ 38; see also Gates,
462 U.S. at 236 (noting that a deferential standard of review discourages law enforcement
officers from conducting “warrantless searches, with the hope of relying on consent or some
other exception to the Warrant Clause that might develop at the time of the search”).

{29} For the foregoing reasons, we hold that an issuing court’s determination of probable
cause must be upheld if the affidavit provides a substantial basis to support a finding of
probable cause. We therefore expressly disavow the broad unqualified statements in cases



                                              10
such as Nyce,1 Gonzales, Knight, Whitley, Steinzig, Duquette, In re Shon Daniel K., and
Wisdom, indicating that an issuing court’s determination of probable cause is reviewed de
novo. A reviewing court should not substitute its judgment for that of the issuing court.
Rather, we clarify that the reviewing court must determine whether the affidavit as a whole,
and the reasonable inferences that may be drawn therefrom, provide a substantial basis for
determining that there is probable cause to believe that a search will uncover evidence of
wrongdoing.

{30} We clarify that the substantial basis standard of review is more deferential than the
de novo review applied to questions of law, but less deferential than the substantial evidence
standard applied to questions of fact. See State v. Koen, 152 P.3d 1148, 1151 n.6 (Alaska
2007). Furthermore, we emphasize that the substantial basis standard is not tantamount to
rubber-stamping the decision of the issuing court and does not preclude the reviewing court
from conducting a meaningful analysis of whether the search warrant was supported by
probable cause. Cf. State v. Alberico, 116 N.M. 156, 170, 861 P.2d 192, 206 (1993) (holding
that the abuse of discretion standard does not prevent an appellate court from conducting a
meaningful analysis). Indeed, “when an application for a search warrant is based on an
affidavit, the affidavit must contain sufficient facts to enable the issuing magistrate
independently to pass judgment on the existence of probable cause. Mere affirmance of
belief or suspicion [by the affiant] is not enough.” Cordova, 109 N.M. at 213, 784 P.2d at
32 (internal quotation marks and citation omitted); see also Rule 5-211(E) NMRA
(“‘probable cause’ shall be based upon substantial evidence, which may be hearsay in whole
or in part, provided there is a substantial basis for believing the source of the hearsay to be


       1
         Nothing in this opinion, however, should be construed to undermine our holding in
Nyce. First, in Nyce, we limited our review to a redacted version of the search warrant
affidavit, one in which stale information had been omitted. Nyce, 2006-NMSC-026, ¶ 7. We
note that, although there is a split of authority on the issue, many jurisdictions apply a de
novo standard of review to redacted search warrant affidavits because the issuing court
“never had the opportunity in the first place to consider the exact mix of facts” before the
reviewing court. People v. Hebert, 46 P.3d 473, 481 (Colo. 2002) (rejecting substantial basis
standard and reviewing redacted search warrant affidavit de novo); compare State v. Fisher,
154 P.3d 455, 477-78 (Kan. 2007) (noting that “jurisdictions are split on the standard for
reviewing an excised affidavit” and adopting the substantial basis standard), with United
States v. Barajas-Avalos, 377 F.3d 1040, 1058 (9th Cir. 2004) (“We review de novo the
question whether probable cause exists after allegedly tainted information has been redacted
from an affidavit.”). Second, in Nyce, we gave “due weight to the fact that it [was] a home
to be searched and its privacy invaded” when we reviewed the objective reasonableness of
the issuing court’s determination of probable cause. Nyce, 2006-NMSC-026, ¶ 12 (“The
presence of objective reasonableness is especially important when dealing with the search
of a home.”). Lastly, our review was “particularly exacting” in Nyce because the defendant’s
conduct, purchasing tincture of iodine and hydrogen peroxide in a hurried manner, was
“equally consistent with legal activity” as it was with illegal activity. Id. ¶ 14.

                                             11
credible and for believing that there is a factual basis for the information furnished.”). If,
after reviewing the affidavit as a whole, the “direct and circumstantial evidence alleged, as
well as all reasonable inferences to be drawn from those allegations,” Snedeker, 99 N.M. at
290, 657 P.2d at 617, does not support the issuing court’s determination of probable cause,
then the search is invalid and unreasonable. Nyce, 2006-NMSC-026, ¶ 11 (“Any search
pursuant to a warrant that has an affidavit lacking in probable cause is unreasonable.” (citing
2 Wayne R. LaFave, Criminal Procedure § 3.3(a), at 83 (2d ed. 1999))). However, if the
factual basis for the warrant is sufficiently detailed in the search warrant affidavit and the
issuing court “has found probable cause, the [reviewing] courts should not invalidate the
warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense,
manner.” Ventresca, 380 U.S. at 109; see also Snedeker, 99 N.M. at 292, 657 P.2d at 619
(warning against applying “loose logic and rubber-stamp reactions” to invalidate a search
warrant on the basis of “any small item [that appears] to be wrong” in the affidavit).

B.     Drug-sniffing Dog’s Failure to Alert to the Presence of Narcotics

{31} With these principles in mind, we next address whether the affidavit in the present
case provided a substantial basis for the issuing court’s determination of probable cause.
Our review is limited to the four corners of the search warrant affidavit. Nyce, 2006-NMSC-
026, ¶ 8; Cordova, 109 N.M. at 213, 784 P.2d at 32.

               Probable cause exists when there are reasonable grounds to believe
       that an offense has been or is being committed in the place to be searched.
       [Snedeker, 99 N.M. at 290, 657 P.2d at 617]; [Gonzales, 2003-NMCA-008,
       ¶ 11]. Probable cause is not subject to bright line, hard-and-fast rules, but is
       a fact-based determination made on a case-by-case basis. See State v. Aull,
       78 N.M. 607, 612, 435 P.2d 437, 442 (1967) (stating no two cases are
       precisely alike); People v. Miller, 75 P.3d 1108, 1113 (Colo. 2003) (en banc)
       (stating that probable cause analysis “does not lend itself to mathematical
       certainties or bright line rules”). “The degree of proof necessary to establish
       probable cause for the issuance of a search warrant ‘is more than a suspicion
       or possibility but less than a certainty of proof.” [Gonzales, 2003-NMCA-
       008, ¶ 12] (quoting State v. Donaldson, 100 N.M. 111, 116, 666 P.2d 1258,
       1263 (Ct. App. 1983)). When ruling on probable cause, we deal only in the
       realm of reasonable possibilities, and look to the totality of the circumstances
       to determine if probable cause is present. State v. Garcia, 79 N.M. 367, 368,
       443 P.2d 860, 861 (1968); see United States v. Basham, 268 F.3d 1199, 1203
       (10th Cir. 2001).

Nyce, 2006-NMSC-026, ¶ 10.

{32} We agree with Judge Sutin that the facts alleged in the affidavit were sufficient to
support the issuing court’s determination of probable cause, and therefore, the search warrant
must be upheld.

                                             12
                In the present case, the UPS store manager knew who Defendant was.
        He had mailed packages from the store before, but this was the first time he
        appeared nervous and stated that he did not know what was in the package.
        Several circumstances create more than a reasonable suspicion of criminal
        conduct. These include Defendant’s nervousness, his inability or
        unwillingness to state what was in the package, his later recollection that a
        book was inside when the store manager said that the package would have to
        be opened, his statement that he was sending the package to his son when the
        addressee’s last name was different from Defendant’s last name, the store
        manager’s obvious suspicions, the packaging indicating that Defendant was
        likely lying to the store manager, the store manager’s fairly obvious training
        and her behavior in regard to suspicious use of common carrier delivery for
        drug activity, and the officer’s generally expressed training and experience.
                Furthermore, the officer stated that the UPS store manager observed
        two containers inside a vacuum sealed bag, each wrapped with duct tape; that
        the officer himself observed the bag and also a Crystal Light cylinder
        wrapped with gray duct tape and a square Ferrero candy box also wrapped
        on the ends with gray duct tape; and that the officer knew from training and
        experience that “often times narcotics are packaged in unusual containers,
        wrapped with duct tape, and vacuum sealed, to make the narcotics less
        detectable by narcotic detection canines” and also that “narcotics are often
        mailed to other places using common carriers such as UPS.”

Williamson, 2008-NMCA-096, ¶¶ 22-23 (Sutin, J., dissenting) (citation omitted).
Accordingly, the Court of Appeals improperly affirmed the decision of the suppressing court
granting Defendant’s motion to suppress.

{33} Defendant claims, however, that the drug-sniffing dog’s unexplained failure to alert
to the presence of narcotics fatally undermined the issuing court’s determination of probable
cause. We agree with Defendant that the “State has the burden to explain an alert failure,
if it can, and the failure to satisfy that burden ought to be a part of the mix in considering the
evidentiary sufficiency for probable cause for a search warrant.” Williamson, 2008-NMCA-
096, ¶ 18 (Sutin, J., dissenting). In the present case, however, the issuing court reasonably
could have found that the State adequately had explained Coro’s failure to alert. Sergeant
Brackeen averred that “often times narcotics are packaged in unusual containers, wrapped
with duct tape, and vacuum sealed, to make the narcotics less detectable by narcotic
detection canines.” On the basis of this evidence, the issuing court reasonably could have
inferred that Coro’s failure to alert was attributable to the method of packaging, which
masked the odor of any illegal narcotics that might have been present inside of the
containers. Because Coro’s failure to alert was inconclusive on the essential question of
whether the package contained illegal narcotics and because the facts set forth in the search
warrant affidavit otherwise were sufficient to establish probable cause, there was a
substantial basis for the issuing court’s determination of probable cause.


                                               13
{34} Lastly, Defendant claims that, pursuant to Nyce, our inquiry must be “particularly
exacting” because Defendant’s conduct was “equally consistent with legal activity.” See
Nyce, 2006-NMSC-026, ¶ 14 (purchasing tincture of iodine and hydrogen peroxide at
multiple stores in a hurried manner is equally consistent with lawful activity); State v.
Anderson, 107 N.M. 165, 169, 754 P.2d 542, 546 (Ct. App. 1988) (holding that facts
consistent with a drug courier profile are insufficient in themselves to establish probable
cause, because they “are generally descriptive of hundreds of innocent persons traveling
through New Mexico on the interstate every day”). We disagree. As we acknowledged in
Nyce, “ordinary, innocent facts alleged in an affidavit may be sufficient if, when viewed
together with all the facts and circumstances, they make it reasonably probable that a crime
is occurring in the place to be searched.” Nyce, 2006-NMSC-026, ¶ 14. In the present case,
although Defendant’s conduct was lawful, for the reasons previously explained, the facts and
circumstances alleged in the affidavit, when viewed together, made it reasonable to infer
that, more likely than not, the package contained illegal narcotics. Stated another way,
Defendant’s nervous and evasive conduct and the suspicious manner in which the containers
were packaged, were more consistent with illegal drug trafficking than they were with
innocent lawful activity. Accordingly, Defendant’s reliance on Nyce is misplaced.

III.   CONCLUSION

{35} We conclude that an issuing court’s determination of probable cause must be upheld
if the affidavit provides a substantial basis to support a finding of probable cause. Because
the facts alleged in the search warrant affidavit were sufficient to explain the drug-sniffing
dog’s failure to alert to the presence of narcotics and to support a reasonable inference that
the package contained illegal narcotics, we uphold the issuing court’s determination of
probable cause. Accordingly, we reverse the judgment of the Court of Appeals and remand
the present case to the district court for further proceedings.

{36}   IT IS SO ORDERED.

                                              ____________________________________
                                              PETRA JIMENEZ MAES, Justice

WE CONCUR:

____________________________________
EDWARD L. CHÁVEZ, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
RICHARD C. BOSSON, Justice


                                             14
____________________________________
CHARLES W. DANIELS, Justice

Topic Index for State v. Williamson, No. 31,174

AE                   Appeal and Error

AE-AR                Appellate Review
AE-ST                Standard of Review

CT                   Constitutional Law

CT–FA                Fourth Amendment
CT-SU                Suppression of Evidence

CA                   Criminal Procedure

CA-AW                Affidavit for Search Warrant
CA-PA                Probable Cause
CA-SZ                Search and Seizure




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