                                                   I attest to the accuracy and
                                                    integrity of this document
                                                      New Mexico Compilation
                                                    Commission, Santa Fe, NM
                                                   '00'05- 14:14:05 2011.11.23
Certiorari Granted, November 4, 2011, No. 33,257

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-113

Filing Date: September 19, 2011

Docket No. 30,656 & 30,657 (Consolidated)

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

vs.

CAROL BOYSE,

       Defendant-Appellant,


Consolidated with


STATE OF NEW MEXICO,

       Plaintiff-Appellee,

vs.

LESTER BOYSE,

       Defendant-Appellant.


APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Fernando R. Macias, District Judge

Gary K. King, Attorney General
William Lazar, Assistant Attorney General
Santa Fe, NM

for Appellee


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Jeff C. Lahann
Christopher K. P. Cardenas
Las Cruces, NM

for Appellants

                                         OPINION

BUSTAMANTE, Judge.

{1}    Defendants appeal the denial of a motion to suppress evidence that was obtained
pursuant to a warrant that the investigator obtained by telephone. At issue is whether such
warrants are recognized under the New Mexico Constitution. We hold that they are not and
reverse.

I.     BACKGROUND

{2}    On August 21, 2008, Sergeant Jeff Gray (Investigator) responded to a call about a
dead horse smell at Defendants’ residence. Investigator saw evidence of numerous problems
and decided to obtain a search warrant. The courts were closed, and Investigator did not
attempt to find the judge in person. Instead, Investigator contacted the on-call judge, Judge
Oscar Frietz, by telephone in order to obtain verbal approval for the warrant.

{3}     Investigator described the procedure by which the warrant was obtained as follows.
Investigator prepared a typewritten affidavit in the same way he would have for a written
search warrant. Investigator then spoke over the telephone with Judge Frietz. Judge Frietz
administered an oath to Investigator, and Investigator read to him the statement of facts in
support of the search warrant. The judge orally approved the warrant at 8:55 p.m., and
Investigator signed the judge’s name to the warrant. The warrant was executed immediately.
At some point in the next several days after the warrant had been executed, the judge signed
and initialed the warrant.

II.    DISCUSSION

{4}     Defendants argue that telephonic warrants are not valid in New Mexico because (1)
they are inconsistent with our rules and (2) they may only be authorized by statute. The
State counters that the warrant was not telephonic, but was instead a standard written warrant
that was telephonically approved. Defendant also raises a number of other issues regarding
the validity of the search warrant in this case. Because we conclude that New Mexico does
not recognize telephonic warrants, we need not examine the remaining issues.

{5}    Article II, Section 10 of the New Mexico Constitution protects against unreasonable
searches and seizures:


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       The people shall be secure in their persons, papers, homes and effects, from
       unreasonable searches and seizures, and no warrant to search any place, or
       seize any person or thing, shall issue without describing the place to be
       searched, or the persons or things to be seized, nor without a written showing
       of probable cause, supported by oath or affirmation.

(emphasis added). It is well settled that this section of the New Mexico Constitution
provides greater protection than the Fourth Amendment. See State v. Leyva, 2011-NMSC-
009, ¶ 51, 149 N.M. 435, 250 P.3d 861. Our rule governing warrants is equally clear. See
Rule 6-208(A)(4) NMRA (“A warrant shall issue only on a sworn written statement of the
facts showing probable cause for issuing the warrant.” (emphasis added)).

{6}      The question of whether New Mexico recognizes telephonic warrants has important
implications. If such warrants are recognized, then our review is deferential, and we “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.” State v. Williamson, 2009-NMSC-039,
¶ 29, 146 N.M. 488, 212 P.3d 376. If they are not recognized, then this was a warrantless
search, and the burden is on the State to prove that an exception to the warrant requirement
applies. See State v. Gutierrez, 2004-NMCA-081, ¶ 6, 136 N.M. 18, 94 P.3d 18.

{7}     It is clear that telephonic warrants do not violate the Fourth Amendment. See Fed.
R. Crim. P. 41(d)(3); United States v. Rome, 809 F.2d 665, 670 (10th Cir. 1987) (upholding
a telephonic warrant despite procedural deficiencies). We have not previously determined
whether such warrants are recognized under the New Mexico Constitution. After a brief
discussion of the telephonic oath in this case, we examine the differences between the Fourth
Amendment and Article II, Section 10, and conclude that telephonic warrants are not
permitted in New Mexico.

A.      Oath and Affirmation

{8}     As an initial matter, we must consider whether the affidavit prepared by Investigator
was supported by oath or affirmation. If it was not, the warrant is not valid. See N.M.
Const. art. II, § 10 (requiring that the writing be supported by oath or affirmation). The State
asserts without citation that the “‘sworn written statement of facts’ need not be
contemporaneous with its presentation to the magistrate.” For the purposes of this Opinion,
we need not decide the issue.

{9}     It is not clear that an oath can be administered over the telephone. See 58 Am. Jur.
2d Oath & Affirmation § 18 (2011) (“[T]he law requires the person taking an oath to be in
the personal presence of the officer administering it. Oaths cannot be taken or administered
over the telephone.” (footnote omitted)). It is nevertheless possible that the affidavit was
supported by oath or affirmation. “A sworn statement is one made under penalty of perjury.”
Citizens for Incorporation, Inc., v. Bd. of Cnty Comm’rs, 115 N.M. 710, 715, 858 P.2d 86,
91 (Ct. App. 1993). It is not inconceivable that Investigator could face perjury charges if the
statements in the affidavit are false. See State v. Knight, 2000-NMCA-016, ¶¶ 25-29, 128


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N.M. 591, 995 P.2d 1033 (holding that an affidavit was sufficient despite failure to comply
with statutorily required formalities). However, it is not necessary for us to decide the issue.
Instead, we assume without deciding that the “affidavit for search warrant” and the
“statement of facts in support of search warrant” were sworn statements supported by oath
or affirmation.

B.      The Judge Must See the Writing Before Issuing a Warrant

{10} Every state has its own constitutional provision protecting against unreasonable
searches and seizures. All but two of these provisions require a sworn showing of probable
cause. See Ariz. Const. art. II, § 8; Wash. Const. art. I, § 7. Many of these states also have
procedures for obtaining warrants over the phone. See generally 2 Wayne R. LaFave, Search
and Seizure § 4.3(C), at 511-12 & nn.29-30 (4th ed. 2004). However, forty of the fifty state
constitutions, as well as the Federal Constitution, do not require the showing of probable
cause to be presented in writing. See, e.g., U.S. Const. amend. IV; Tex. Const. art. I, § 9.
Five states require probable cause to be shown by affidavit, see Fla. Const. art. I, § 12; Idaho
Const. art. I, § 17; Ill. Const. art. I, § 6; S.D. Const. art. VI, § 11; Wyo. Const. art. I, § 4, and
five, including New Mexico, specify that the showing of probable cause must be in
“writing.” See Colo. Const. art. II, § 7; Mo. Const. art. I, § 15; Mont. Const. art. II, § 11;
N.M. Const. art. II, § 10, R.I. Const. art. I, § 6.

{11} The requirement of a writing is key to our analysis. Article II, Section 10 requires
“a written showing of probable cause, supported by oath or affirmation” (emphasis added).
This language expresses a clear and unambiguous requirement that the facts upon which the
probable cause determination is made must be in writing. Acknowledging this, the State
directs us to authority from Idaho, Illinois, and South Dakota, which it claims supports its
argument that telephonic warrants do not conflict with constitutions containing search and
seizure provisions that require a writing. These states each require probable cause to be
shown by affidavit. Our Supreme Court has said that an affidavit is “a written statement,
under oath, sworn to or affirmed by the person making it before some person who has
authority to administer an oath or affirmation.” Kiehne v. Atwood, 93 N.M. 657, 667, 604
P.2d 123, 133 (1979). This is essentially identical to Article II, Section 10’s requirement
that probable cause be shown by a writing supported by oath or affirmation. Accordingly,
we agree that telephonic warrant cases from these states may be instructive.

{12} We are aware of only one state with a writing requirement that has allowed the sort
of telephonic warrant at issue here. In State v. Badger, two roommates were convicted of
possession of a controlled substance with intent to deliver. 525 P.2d 363, 364 (Idaho 1974).
They appealed the denial of their motion to suppress evidence on the ground that the warrant
was based on electronically recorded testimony. Id. The Idaho constitution requires that
probable cause be shown by affidavit. See Idaho Const. art. I, § 17. The court affirmed the
denial of the motion to suppress. Badger, 525 P.2d at 366. Its rationale was simple: as the
Supreme Court, it had “the inherent power to formulate rules of practice and procedure in
the courts of Idaho.” Id. at 365. Accordingly, the court decreed that “the word ‘affidavit’
is broad enough to include the recording of sworn testimony.” Id. Justice McFadden’s
dissent observed that this interpretation ignored the well-established meaning of the word


                                                 4
‘affidavit,’ which had always been defined as a writing and which required no construction
to interpret. Id. at 367-68 (McFadden, J., dissenting).

{13} We are not in a position to adopt the reasoning from Badger. Unlike the Idaho
Supreme Court, the New Mexico Court of Appeals does not have rule-making power. See
Ammerman v. Hubbard Broad., Inc., 89 N.M. 307, 312, 551 P.2d 1354, 1359 (1976)
(holding that rule-making power is vested exclusively in the New Mexico Supreme Court).
Furthermore, we are bound by Supreme Court precedent defining an affidavit as a writing.
See Kiehne, 93 N.M. at 667, 604 P.2d at 133. Even if we were not so bound, we would agree
with Judge McFadden’s dissent, which correctly noted that the vast majority of authority
concludes that an affidavit must be a writing. See Black’s Law Dictionary 66 (9th ed. 2009)
(defining “affidavit” as a “voluntary declaration of facts written down and sworn to by the
declarant before an officer authorized to administer oaths”); Webster’s Third New Int’l
Dictionary (unabridged) 35 (1986) (defining an “affidavit” as “a sworn statement in writing
made esp. under oath or on affirmation before an authorized magistrate or officer”).

{14} The State has also directed our attention to cases from Illinois and South Dakota,
both of which require probable cause to be supported by affidavit. The State’s argument
appears to be that since these states have “codified procedures governing telephonic search
warrants,” such warrants are compatible with constitutions requiring a writing. It is true that
the legislature of Illinois has enacted a procedure governing the issuance of telephonic
warrants. See Ill. Const. art. I, § 6; 725 Ill. Comp. Stat. 5/108-4(b) (2007). However, the
courts of Illinois appear to have rejected the idea that telephonic warrants are valid. See
People v. Taylor, 555 N.E.2d 1218, 1220 (Ill. App. Ct. 1990) (“We decline to read into the
search warrant statute authorization for long distance factual findings by telephone. . . .”);
see also People v. Blake, 640 N.E.2d 317, 320 (Ill. App. Ct. 1994) (“It appears the critical
factor influencing the [Taylor] court’s decision was the failure to comply with the
requirements that the warrant be issued upon a written complaint under oath or
affirmation.”). Furthermore, although the State did not mention this in its brief, we also note
that the Illinois statute applies only to acts of terrorism and that by its own terms it “is
inoperative on and after January 1, 2005.” See 725 Ill. Comp. Stat. 5/108-4(b)(1), (8).

{15} South Dakota has taken a different approach. The South Dakota statute provides a
procedure for obtaining a telephonic warrant and states that, where the procedure is
followed, the certified, filed transcription of the telephone conversation “shall be deemed to
be an affidavit.” S.D. Codified Laws § 23A-35-5 (1978). However, unlike South Dakota,
we have no rule or statute purporting to equate a recording or transcript of a telephone
conversation with a writing for the purposes of Article II, Section 10. In any event, no
recording or transcript was made in this case.

{16} The mere existence of a sworn writing is not enough to satisfy the requirements of
Article II, Section 10. The issuing court must base its decision, at least in part, on the
writing. Our constitution and rules require that “no warrant . . . shall issue . . . without a
written showing of probable cause, supported by oath or affirmation.” Article II, Section 10
(emphasis added); see also Rule 6-208(A). We construe this to mean not simply that a
sworn writing must exist somewhere, but also that it must be shown to and considered by the


                                              5
issuing court before the warrant issues. Thus, as the State acknowledges, a judge may make
his or her decision based upon the writing without hearing from the officer. See Rule 6-
208(F) (allowing the judge, at his or her discretion, to require testimony from the affiant).
However, the requirement is not satisfied when an investigator makes a writing but does not
show it to the judge. Here, at the time the magistrate court approved the warrant, it had not
seen a written affidavit showing probable cause. Instead, its decision was based on an
unrecorded phone conversation. Because this procedure does not meet the requirements of
the New Mexico Constitution, the warrant was invalid and the evidence should have been
suppressed.

{17} There are obvious problems with the procedure that was followed in this case.
Investigator testified that he read the statement of facts verbatim to the magistrate judge after
he was sworn during the phone conversation. However, the district court had no way of
knowing whether the writing actually existed. If the affidavit did exist, the judge had no way
of determining whether the Investigator’s reading of the affidavit was verbatim. If the
reading was verbatim, the judge had no way of knowing whether the affidavit was modified
in the days between when the phone conversation took place and when the affidavit was
actually signed by the judge. There is also no way to determine whether the conversation
included material not contained in the affidavit. In short, neither Defendants nor this Court
has any way to review the basis of the court’s decision that there was probable cause. The
potential for error or abuse in such a procedure is evident.

{18} With appropriate protections, telephonic warrants may well be useful and advisable.
After all, New Mexico has a strong preference for warrants, State v. Gomez, 1997-NMSC-
006, ¶ 36, 122 N.M. 777, 932 P.2d 1, and telephonic warrants “encourage law enforcement
officers to obtain approval for a search from a magistrate, in situations where they might
otherwise feel that there was no time for anything but a warrantless search.” 38 ALR 4th
1145, § 2[a]. Many jurisdictions have adopted rules that address the concerns that arise
when the showing of probable cause is made over the telephone. However, under our
current law, telephonic warrants are not permissible. If New Mexico is to adopt them, it is
for our Supreme Court to formulate rules that would render them valid.

III.    CONCLUSION

{19} For the foregoing reasons, we reverse the order denying Defendants’ motion to
suppress and remand for further proceedings consistent with this Opinion.

{20}    IT IS SO ORDERED.

                                                _____________________________________
                                                MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

_____________________________________
JAMES J. WECHSLER, Judge


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_____________________________________
CYNTHIA A. FRY, Chief Judge

Topic Index for State v. Boyse, Nos. 30,656/30,657

CT                   CONSTITUTIONAL LAW
CT-FA                Fourth Amendment
CT-NM                New Mexico Constitution, General
CT-SU                Suppression of Evidence

CA                   CRIMINAL PROCEDURE
CA-MR                Motion to Suppress
CA-PO                Peace Officer
CA-PA                Probable Cause
CA-SZ                Search and Seizure
CA-SW                Warrant




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