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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,
 4
 5 v.                                                                            NO. 31,099

 6 AARON RAMOS,

 7          Defendant-Appellant.


 8 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
 9 James Waylon Counts, District Judge

10 Gary K. King, Attorney General
11 Ann M. Harvey, Assistant Attorney General
12 Santa Fe, NM

13 for Appellee

14 Jacqueline L. Cooper, Chief Public Defender
15 Carlos Ruiz de la Torre, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant


18                                 MEMORANDUM OPINION

19 BUSTAMANTE, Judge.
 1        In this appeal, Defendant contends that probable cause to issue a search warrant

 2 was not established where the veracity of the informant, who lied to police in his

 3 statement, was not confirmed, and the officer failed to corroborate the informant’s

 4 claims. We reverse the district court’s order denying Defendant’s motion to suppress.

 5 BACKGROUND

 6        On November 17, 2009, affiant Detective Sergeant Kenneth L. Cramer (Officer

 7 Cramer) was contacted by a confidential informant (the CI) who stated that he had

 8 made arrangements to buy an eightball of cocaine from Orlando T. Williams, Jr.

 9 (Williams) for $380. Officer Cramer told the CI to set up the buy for the morning of

10 the next day, November 18, 2009, and for the buy to take place at the Muddy Grubby

11 Car Wash on Highway 70 in Ruidoso Downs, New Mexico. Officer Cramer met with

12 the CI prior to the buy, outfitted the CI with a wireless transmitter, searched the CI’s

13 car and person, transferred $380 in marked bills to the CI, and kept the CI under

14 constant surveillance. Officer Cramer observed a white Pontiac approach the CI’s

15 vehicle; Williams was seated in the passenger seat of the white Pontiac. Williams

16 exited the white Pontiac and got into the passenger side of the CI’s vehicle. Officer

17 Cramer listened to the buy, and he saw Williams exit the CI’s vehicle and return to the

18 white Pontiac. Officer Cramer then issued the arrest order to other officers who were

19 standing by. The officers arrested Williams, the driver of the white Pontiac, Mr. Guy

                                              2
 1 Bell (Bell), and the CI (to maintain his cover). Officer Cramer recovered the $380 and

 2 a bag of white powder in a velour bag from Williams; Officer Cramer also recovered

 3 a bag of white powder from the CI.

 4        At the police department, Officer Cramer read Williams and Bell their Miranda

 5 rights and interviewed each of them on video. The affidavit then states:

 6        19.   Affiant was present when . . . Bell admitted that the white powder
 7              on the straw [found in his pants pocket] was cocaine and that he
 8              used cocaine.

 9        20.   Affiant questioned . . . Williams . . . after reading him [his]
10              Miranda rights, which he waived, and . . . Williams . . . admitted
11              to selling the CI a bag of white powder for $380[] representing it
12              to the CI as cocaine, but said that the powder was baking soda and
13              not really cocaine.

14        21.   Affiant learned from . . . Williams . . . that he had obtained the
15              white powder from [Defendant] who Williams said was going to
16              give him part of the money for selling it to the CI.

17        22.   Affiant photographed, weighed and field tested the white powder
18              which showed positive for cocaine.

19        23.   Affiant learned from . . . Williams . . .that he had obtained the
20              cocaine which he sold to the CI from [Defendant] at a house
21              where [Defendant] resides behind Laser Car[][W]ash, 705
22              Mechem Drive, Ruidoso, New Mexico.

23        24.   Affiant learned from . . . Williams . . .that while he was at the
24              residence on the property, . . . he observed both cocaine and
25              methamphetamines on the morning of November 18, 2009.




                                             3
 1        25.    Affiant learned from . . . Williams . . . that [Defendant] keeps the
 2               methamphetamine in a spray starch can that opens to reveal a
 3               compartment where the methamphetamine is hidden.

 4        26.    Affiant learned from . . . Williams . . . that [Defendant] hides
 5               controlled substances in various places in the house including
 6               light fixtures, compartments in the wall, and heat ducts.

 7        27.    Affiant has conducted previous investigation into [Defendant],
 8               determining that he occupies the residence at the rear of Laser Car
 9               Wash. . . .

10        28.    Affiant has observed during surveillance that cars frequently come
11               to the residence and the occupants go into and stay at the
12               residence for only a short period of time, usually less than [two]
13               minutes.

14        29.    Affiant has observed that the volume of cars coming to the
15               residence . . . for those short term visits are sometimes as high as
16               [ten to twenty] cars per day.

17        Officer Cramer prepared the affidavit on the same day as the controlled buy and

18 the arrest and interview of Williams, a district court judge authorized a search warrant

19 for Defendant’s residence at 705 Mechem Drive, Ruidoso, New Mexico, and it was

20 executed the same day. The officers discovered two packages of white powder and

21 two packages of crystalline substance in Defendant’s bedroom in a can of RAVE

22 brand hair spray that had a false bottom, as well as other packaged contraband, drug

23 paraphernalia, and a semi-automatic pistol. Defendant was charged with trafficking

24 cocaine and methamphetamine, distributing marijuana, using or possessing drug

25 paraphernalia, and possessing a firearm by a felon.

                                              4
 1        Defendant filed a “constitutional challenge to the veracity of affidavit for search

 2 warrant and motion to suppress.” Defendant included a chronology of November 18,

 3 2009, and several exhibits: Officer Cramer’s affidavit for the search warrant, the

 4 video recording of Officer Cramer’s interview with Williams, a field test photograph,

 5 an audio recorded interview with Officer Cramer, Officer Cramer’s investigative

 6 report, a booking surveillance video of Williams and Bell, and Officer Cramer’s

 7 intelligence report dated November 12, 2009. The State responded. The district court

 8 held a hearing during which Defendant cross-examined Officer Cramer attempting to

 9 prove the officer’s statements in the affidavit included deliberate falsehoods or

10 demonstrated a reckless disregard for the truth material to the probable cause

11 determination. After the hearing, the district court denied Defendant’s motion to

12 suppress.

13        The district court observed that the affidavit makes it clear that Williams was

14 involved in a drug transaction that day and that Williams was facing criminal

15 prosecution for selling cocaine or for selling baking soda as an imitation controlled

16 substance. The district court also observed that Williams made statements against

17 interest and that there was independent information that Defendant was engaged in

18 drug trafficking at his house. Based on Officer Cramer’s testimony at the hearing, the

19 district court observed that the officer had overstated his observations of drug


                                               5
 1 trafficking at Defendant’s residence, but ruled:        “That does not make [the

 2 overstatements] false.” Defendant entered into a conditional plea of no contest to

 3 three of the five charges, reserving the right to appeal the denial of his motion to

 4 suppress. The final judgment and sentence was filed on January 19, 2011. Defendant

 5 appeals.

 6 STANDARD OF REVIEW AND APPLICABLE LAW

 7        At the outset, “[w]e note this case involves the search of a dwelling place, an

 8 area that is ordinarily afforded the most stringent [F]ourth [A]mendment protection.”

 9 State v. Vest, 2011-NMCA-037, ¶ 6, 149 N.M. 548, 252 P.3d 772 (alterations in

10 original) (internal quotation marks and citation omitted), cert. granted,

11 2011-NMCERT-005, 150 N.M. 667, 265 P.3d 718. “The Fourth Amendment to the

12 United States Constitution and [A]rticle II, [S]ection 10 of the New Mexico

13 Constitution both require probable cause to believe that a crime is occurring or

14 seizable evidence exists at a particular location before a search warrant may issue.”

15 State v. Nyce, 2006-NMSC-026, ¶ 9, 139 N.M. 647, 137 P.3d 587, overruled in part

16 on other grounds by State v. Williamson, 2009-NMSC-039, 146 N.M. 488, 212 P.3d

17 376. Probable cause to issue a warrant requires a factual showing “that there is a

18 reasonable probability that evidence of a crime will be found in the place to be

19 searched.” State v. Gonzales, 2003-NMCA-008, ¶ 12, 133 N.M. 158, 61 P.3d 867.


                                             6
 1 Our inquiry on appeal focuses on the issuing judge’s conclusion as to probable cause.

 2 State v. Evans, 2009-NMSC-027, ¶ 12, 146 N.M. 319, 210 P.3d 216. “[A]n issuing

 3 court’s determination of probable cause must be upheld if the affidavit provides a

 4 substantial basis to support a finding of probable cause.” Williamson, 2009-NMSC-

 5 039, ¶ 29 (overruling in part all previous case law to the extent that the cases applied

 6 a de novo rather than substantial basis standard of review). “[T]he substantial basis

 7 standard of review is more deferential than the de novo review applied to questions

 8 of law, but less deferential than the substantial evidence standard applied to questions

 9 of fact.” Id. ¶ 30. Thus, “if the factual basis for the warrant is sufficiently detailed in

10 the search warrant affidavit and the issuing court has found probable cause, the

11 reviewing courts should not invalidate the warrant by interpreting the affidavit in a

12 hypertechnical, rather than a commonsense, manner.”              Id. (alteration, internal

13 quotation marks, and citation omitted).

14        When, as in this case, a search warrant is based on an informant’s hearsay

15 statements, the issuing judge may find probable cause where he or she is “provided

16 with sufficient information to permit the court to evaluate (1) the basis for the affiant’s

17 and any informant’s knowledge indicating the information relied upon was gathered

18 in a reliable way; and (2) facts indicating that the informant or informants are credible

19 or the information in the affidavit is accurate and worthy of belief.” In re Shon Daniel


                                                7
 1 K., 1998-NMCA-069, ¶ 9, 125 N.M. 219, 959 P.2d 553, holding limited by

 2 Williamson, 2009-NMSC-039; see State v. Cordova, 109 N.M. 211, 217, 784 P.2d 30,

 3 36 (1989) (adopting, as a matter of state constitutional law, the confidential informant

 4 test requiring both prongs to be satisfied as first formulated by the United States

 5 Supreme Court in Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States,

 6 393 U.S. 410 (1969), overruled in part by Illinois v. Gates, 462 U.S. 213 (1983).

 7        In making the determination of facial sufficiency, we consider solely the

 8 information within the four corners of the affidavit submitted in support of a search

 9 warrant. See Williamson, 2009-NMSC-039, ¶ 31. If an affidavit is not facially

10 sufficient to support a probable cause determination, then the warrant should not have

11 issued and the evidence seized as a result of the search must be suppressed. See Vest,

12 2011-NMCA-037, ¶¶ 21-22 (invalidating a search warrant as facially insufficient and

13 suppressing the evidence seized).

14        Even if an affidavit is facially sufficient, however, a defendant may be entitled

15 to a hearing that delves below the surface of the affidavit if the defendant alleges and

16 proves that the affiant’s statements in the affidavit either constituted material

17 deliberate falsehoods or demonstrated a reckless disregard for the truth of facts

18 material to the probable cause determination. See State v. Fernandez, 1999-NMCA-

19 128, ¶¶ 27, 30, 128 N.M. 111, 990 P.2d 224 (discussing the development of this area


                                              8
 1 of the law in New Mexico); see also State v. Cervantes, 92 N.M. 643, 648, 593 P.2d

 2 478, 483 (Ct. App. 1979) (adopting the United States Supreme Court test set forth in

 3 Franks v. Delaware, 438 U.S. 154 (1978)). But see State v. Donaldson, 100 N.M.

 4 111, 666 P.2d 1258 (Ct. App. 1983).

 5        The issue of whether facts intentionally omitted or misstated in an
 6        affidavit are of such materiality that their non-disclosure or misstatement
 7        may lead to invalidating the search warrant[] turns on whether these
 8        facts, because of their inherent probative force, give rise to a substantial
 9        probability that, had the information been set out or correctly stated in
10        the affidavit, it would have altered a reasonable magistrate’s
11        determination of probable cause.

12 Id. at 117, 666 P.2d at 1264. Thus, in order to suppress evidence after inquiry beyond

13 the four corners of the affidavit, the defendant must show either “deliberate

14 falsehood,” or “reckless disregard for the truth,” as to material facts in the affidavit.

15 Fernandez, 1999-NMCA-128, ¶ 34 (internal quotation marks omitted). “A merely

16 material misrepresentation or omission is insufficient. ‘Deliberate’ and ‘reckless

17 disregard’ are each a step beyond ‘intentional.’” Id.

18 ANALYSIS

19        We first examine the four corners of the affidavit to determine whether it is

20 facially sufficient. If it is not, then the search warrant should not have issued and the

21 evidence seized must be suppressed. Even if it is facially sufficient, however, we may

22 examine whether the district court erred in allowing Defendant to cross-examine the


                                               9
 1 officer/affiant to inquire beyond the four corners of the affidavit. If the district court

 2 did not err in allowing such inquiry, we examine whether the officer’s statements in

 3 the affidavit constitute deliberate falsehoods or demonstrate a reckless disregard for

 4 the truth as to facts material to the probable cause determination. We turn now to

 5 examine whether the affidavit is facially sufficient within its four corners.

 6        Upon examination of the four corners of the affidavit, we see numerous

 7 problems with its facial sufficiency. First, Williams is identified by name in the

 8 affidavit, and Williams is the person who identified Defendant as the source for the

 9 white powder. We have recognized that, because the strictures of Aguilar-Spinelli are

10 primarily aimed at unnamed police informers, the identification of the informant by

11 name is a significant factor in determining the reliability of the information. See State

12 v. Dietrich, 2009-NMCA-031, ¶¶ 12-13, 145 N.M. 733, 204 P.3d 748. Disclosure of

13 an informant’s identity only creates a presumption of the informant’s inherent

14 credibility, however, and “[i]n such case the affidavit must contain sufficient

15 additional information to show the informant is telling the truth.” In re Shon Daniel

16 K., 1998-NMCA-069, ¶¶ 14-15. In this case, additional information to show that

17 Williams is telling the truth is wholly lacking within the four corners of the affidavit.

18 For example, although not all-inclusive, none of the factors that could have

19 established Williams’ credibility and reliability are present in this case. Id. ¶ 12


                                               10
 1 (recognizing that reliability of an informant may be established, among other ways,

 2 by showing that: “(1) the informant has given reliable information to police officers

 3 in the past; (2) the informant is a volunteer citizen-informant; (3) the informant has

 4 made statements against his or her penal interest; (4) independent investigation by

 5 police corroborates [the] informant’s reliability or information given; and (5) facts and

 6 circumstances disclosed impute reliability” (citations omitted)).

 7        First, the affidavit does not indicate that Williams has given reliable information

 8 to police officers in the past, nor are there facts or circumstances set forth in the

 9 affidavit from which to impute credibility or reliability to Williams’ statements against

10 Defendant. See State v. Steinzig, 1999-NMCA-107, ¶ 18, 127 N.M. 752, 987 P.2d 409

11 (discussing that to establish reliability or veracity, the affidavit must set forth

12 sufficient facts for the issuing judge to independently determine either the inherent

13 credibility of an informant or the reliability of the informant’s information). In the

14 affidavit, Officer Cramer states that he learned about Williams from a CI. While there

15 are many statements in the affidavit about Officer Cramer’s own experience

16 investigating narcotics, there are no statements about Officer Cramer’s prior contact

17 or experience with the CI or with Williams. Cf. Cordova, 109 N.M. at 217-18, 784

18 P.2d at 36-37 (finding an informant to be credible based upon the affiant’s statement

19 that the informant had provided information in the past that the affiant found to be true


                                              11
 1 and correct from personal knowledge and investigation); see also State v. Knight,

 2 2000-NMCA-016, ¶¶ 19-21, 128 N.M. 591, 995 P.2d 1033 (finding that the affidavit

 3 established the informant’s veracity even though there was no history of the informant

 4 providing reliable information because the affidavit provided information of the

 5 informant’s multiple meetings with officers and the informant’s extensive

 6 cooperation). In this case, Williams appears in the affidavit as an unknown drug

 7 dealer/middle man caught in the act of selling drugs to the CI.

 8        Similarly, while Officer Cramer describes the precautions he took to ensure the

 9 integrity of the controlled buy, the controlled buy did not involve Defendant—it took

10 place between the CI and Williams. Further, while the affidavit describes how Officer

11 Cramer carefully observed the controlled buy between the CI and Williams at the

12 Muddy Grubby Car Wash, the controlled buy did not take place at Defendant’s

13 residence, the place named in the search warrant to be searched, nor at the Laser Car

14 Wash in front of Defendant’s residence. Thus, none of the details in the affidavit

15 about the officer’s experience or the controlled buy between Williams and the CI

16 provide any independent basis for an issuing judge to determine Williams’ reliability

17 or credibility with regard to his statements against Defendant.

18        Second, Williams is not a volunteer citizen-informant. Officer Cramer learned

19 about Williams from a CI and he subsequently observed Williams selling cocaine to


                                             12
 1 the CI. Officer Cramer arrested Williams immediately after the controlled buy and

 2 interviewed him at police headquarters.

 3        Third, we cannot agree that Williams made statements against penal interest.

 4 See State v. Torres, 1998-NMSC-052, ¶¶ 13-15, 126 N.M. 477, 971 P.2d 1267

 5 (discussing that the analysis regarding statements against penal interest involves a

 6 “fact-intensive inquiry that can only be answered in light of all the surrounding

 7 circumstances.” (internal quotation marks and citation omitted)), overruled on other

 8 grounds by State v. Alvarez-Lopez, 2004-NMSC-030, 136 N.M. 309, 93 P.3d 699.

 9 Officer Cramer states in the affidavit that Williams admitted to Officer Cramer that

10 Williams sold the CI a bag of white powder for $380. In the same sentence, Officer

11 Cramer also states that Williams told Officer Cramer that Williams misrepresented the

12 white powder as cocaine to the CI, when it was really “baking soda,” not cocaine. At

13 that point, Officer Cramer states that Williams identified Defendant and Defendant’s

14 residence as the source of the white powder. Officer Cramer then states that the

15 “baking soda,” tested positive as cocaine.

16        We do not construe Williams’ “baking soda” statement as a statement against

17 penal interest, simply because, as the State argues, there is a statute, obviously

18 unknown to Williams when he made the statement to Officer Cramer, that makes

19 selling imitation controlled substances a crime. See, e.g., NMSA 1978, Section 30-


                                             13
 1 31A-4 (1983). Rather, the “baking soda” statement reflects Williams’ obvious, but

 2 mistaken, attempt to exonerate himself to Officer Cramer for only intending to sell

 3 baking soda to the CI, rather than cocaine. Williams also attempted to shift the blame

 4 or seem cooperative with Officer Cramer for his own advantage, by naming Defendant

 5 as the person who tricked Williams and/or was the white powder supplier. Under the

 6 circumstances, the fact that Williams admitted that he took part in the controlled buy,

 7 especially when Williams knew the officer observed the controlled buy and arrested

 8 Williams during it, does not contribute to Williams’ reliability or credibility with

 9 regard to his statements against Defendant. We conclude that Williams’ baking soda

10 statement and his identification of Defendant as the white powder source, are not

11 statements against penal interest that serve to bolster Williams’ reliability or veracity.

12        Finally, the affidavit does not adequately show that Officer Cramer

13 independently corroborated the veracity of Williams’ statements against Defendant.

14 See, e.g., State v. Therrien, 110 N.M. 261, 263, 794 P.2d 735, 737 (Ct. App. 1990)

15 (stating that for corroboration to provide veracity, observations of officers must

16 corroborate the allegation of criminal conduct), overruled in part on other grounds by

17 State v. Barker, 114 N.M. 589, 844 P.2d 839 (Ct. App. 1992). As mentioned above,

18 Defendant did not participate in the officer-observed controlled buy and the controlled

19 buy did not take place at Defendant’s residence. As for other forms of independent


                                               14
 1 corroboration, in the affidavit, Officer Cramer states that he “has conducted previous

 2 investigation into [Defendant]” and that he knows that Defendant lives at the address

 3 he is applying to search. Officer Cramer also states that he “has observed during

 4 surveillance” frequent traffic at Defendant’s residence, “as high as [ten to twenty] cars

 5 per day” stay for short periods of time “usually less than [two] minutes.” These

 6 statements reflect that Officer Cramer previously investigated Defendant for some

 7 unknown reason, and previously conducted drug-selling-related surveillance,

 8 observing frequent short-term traffic at Defendant’s residence, at some unknown time

 9 in the past. Moreover, because the affidavit was prepared immediately after the

10 controlled buy and Williams’ arrest and interview, an issuing judge cannot infer that

11 any of the asserted previous investigation, surveillance, or observation took place in

12 response to the information that Williams gave to Officer Cramer, or to corroborate

13 it. Finally, the fact that Williams told Officer Cramer that he saw controlled

14 substances at Defendant’s house in certain places the morning of the controlled buy,

15 does not contribute to the officer’s obligation to independently and timely corroborate

16 Williams’ statements against Defendant. See Vest, 2011-NMCA-037, ¶¶ 21-22

17 (invalidating a search warrant, because in the affidavit the affiant did not timely

18 corroborate, with, for example, his own observations in the same time period




                                              15
 1 addressed by the informant, the reliability of the informant’s report that the defendant

 2 had present possession of marijuana).

 3        We conclude, therefore, that the affidavit presents insufficient facts from which

 4 an issuing judge could determine that Williams is credible or that the information

 5 Williams supplied to the affiant about Defendant is accurate and worthy of belief.

 6 We hold that the affidavit is facially insufficient, that the warrant should not have

 7 issued, and that the evidence seized pursuant to it must be suppressed. Finding the

 8 affidavit insufficient within its four corners, we need not address whether the district

 9 court’s inquiry beyond the four corners of the affidavit was appropriate in this case,

10 or, if so, whether Officer Cramer’s testimony at the hearing reflects that his statements

11 in the affidavit contained deliberate falsehoods or demonstrated a reckless disregard

12 for the truth as to facts material to the probable cause determination.

13 CONCLUSION

14        We reverse the district court’s decision to deny Defendant’s motion to suppress

15 and remand for the district court to strike the search warrant and enter an order

16 suppressing the evidence seized pursuant to it.

17        IT IS SO ORDERED.



18
19                                          MICHAEL D. BUSTAMANTE, Judge

                                              16
1 WE CONCUR:


2
3 JAMES J. WECHSLER, Judge


4
5 LINDA M. VANZI, Judge




                             17
