 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
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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. 30,489

10 JUSTIN ROBERTS,

11          Defendant-Appellee,

12 Consolidated with

13 STATE OF NEW MEXICO,

14          Plaintiff-Appellant,

15 v.                                                                                  NO. 30,606

16 NADINE PEREA,

17          Defendant-Appellee.

18 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
19 Ross C. Sanchez, District Judge

20 Gary K. King, Attorney General
21 Andrew S. Montgomery, Assistant Attorney General
22 Santa Fe, NM

23 for Appellant
 1 Jacqueline L. Cooper, Chief Public Defender
 2 Kathleen T. Baldridge, Assistant Appellate Defender
 3 Santa Fe, NM

 4 for Appellee Justin Roberts

 5 Liane E. Kerr
 6 Albuquerque, NM

 7 for Appellee Nadine Perea

 8                             MEMORANDUM OPINION

 9 VANZI, Judge.

10        In this consolidated appeal, we examine the sufficiency of an affidavit

11 submitted in support of a warrant to search an apartment after a detective observed a

12 drug buy by an unwitting informant at that apartment seventy-two hours earlier. The

13 State appeals the district court’s grant of Defendants’ motion to suppress evidence

14 seized as a result of the search warrant. The State argues that the affidavit in support

15 of the search warrant contained sufficient facts for the issuing judge to find probable

16 cause based on the detective’s personal observation and because the facts were not

17 stale. Because we conclude the affidavit provided a substantial basis for the issuing

18 judge to find probable cause, we defer to the issuing judge’s determination.


                                              2
 1 Accordingly, we reverse the order of suppression and remand to the district court for

 2 further proceedings consistent with this opinion.

 3 BACKGROUND

 4        On March 27, 2009, a detective from the Albuquerque Police Department’s

 5 Special Investigation Division, Eastside Narcotics Unit submitted an affidavit for

 6 search warrant to the district court. The affidavit set out the following facts as a basis

 7 for the search warrant:

 8        Affiant is a full-time, sworn Law Enforcement Officer . . . for the past
 9        nine years . . . I am familiar with distributing methods used by drug
10        traffickers[.]

11               ....

12        Within the last 72 hours I made contact with an unwitting informant
13        (UI/IT), who advised me of a male subject named “Cedric” who is
14        selling crack cocaine on a continuous and on[]going basis. UI stated IT
15        would be willing to assist detectives in purchasing crack cocaine. I
16        supplied IT with a quantity of U.S. currency to purchase a quantity of
17        crack cocaine. UI directed me to 4401 Montgomery Blvd. NE
18        (Sandpiper Apts), where IT got out of my unmarked police vehicle. IT
19        was placed under constant surveillance as IT approached and entered
20        apartment #133, building “N”. A few minutes later, IT stepped out of
21        apartment 133 and was observed walking directly to my vehicle. IT did
22        not make contact with any other location or person. IT entered my
23        vehicle and handed me a quantity of white rocky substance. (The
24        substance was later field tested, which resulted in a presumptive positive
25        for cocaine.) IT told me Cedric was willing to sell more crack cocaine
26        at any time of the day.




                                               3
 1 Based on the detective’s affidavit, the district court judge found probable cause

 2 existed for the issuance of the search warrant for 4401 Montgomery Blvd. NE, Apt.

 3 133, Albuquerque, New Mexico 87109, and issued it the same day.

 4        While executing the search warrant, the Eastside Narcotics Unit entered the

 5 apartment and encountered Justin Roberts and Nadine Perea, Defendants in this case.

 6 Law enforcement handcuffed Defendants, searched the apartment, and seized

 7 contraband. Defendants were incarcerated and charged with crimes, including

 8 trafficking and possession of drug paraphernalia.

 9        The district attorney joined Defendants’ cases, and on February 17, 2010,

10 Roberts moved to exclude all evidence collected as a result of the search warrant on

11 the ground that the affidavit for search warrant did not provide sufficient factual

12 information for the issuing judge to make a determination that probable cause existed

13 for the search of the apartment. The reviewing judge granted Roberts’ motion, finding

14 that the affidavit did not provide a sufficient basis for probable cause because there

15 was only one drug buy, “and affiant made no effort to corroborate statements of the

16 unwitting informant about the nature or extent of the criminal activity.” The State

17 timely appealed. Perea then moved to join Roberts’ motion to suppress, and the

18 district court granted her motion. The State timely appealed that order, and the two

19 appeals were consolidated here. We now review whether the affidavit for search


                                             4
 1 warrant contained sufficient facts to provide the issuing judge with a substantial basis

 2 for finding probable cause.



 3 DISCUSSION

 4        The State argues that the detective’s direct observation of the unwitting

 5 informant’s conduct provided reasonable grounds for the issuing judge to make a

 6 finding of probable cause. The State asserts that the district court erred when it

 7 engaged in its own probable cause analysis, substituting its judgment for that of the

 8 issuing court and, therefore, the district court’s decision must be reversed. We agree.

 9 Standard of Review

10        Our review in this case focuses on the issuing judge’s conclusion that probable

11 cause existed for the warrant to issue. State v. Evans, 2009-NMSC-027, ¶ 12, 146

12 N.M. 319, 210 P.3d 216. We apply a “substantial basis” standard which requires that

13 the “issuing court’s determination of probable cause should not be reviewed de novo

14 but, rather, must be upheld if the affidavit provides a substantial basis to support a

15 finding of probable cause.” State v. Trujillo, 2011-NMSC-040, ¶ 17, ___ N.M.___,

16 ___ P.3d ___ (internal quotation marks and citation omitted). The reviewing court

17 must “determine whether the affidavit as a whole, and the reasonable inferences that

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


                                              5
 1 probable cause to believe that a search will uncover evidence of wrongdoing.” Id.

 2 (internal quotation marks and citation omitted). We do not substitute our judgment

 3 for that of the issuing court. Id.

 4        Under the substantial basis standard, the reviewing court must conduct a

 5 meaningful analysis of whether the search warrant is supported by probable cause but,

 6 in doing so, we must be mindful that our review is more deferential than de novo

 7 review applied to questions of law, but less deferential than the substantial evidence

 8 standard applied to questions of fact. Id. ¶¶ 18-19. The reviewing court should

 9 interpret the affidavit in a commonsense manner, id. ¶ 19, and only consider the

10 information contained within the four corners of the affidavit on which the issuing

11 judge’s determination was based. State v. Williamson, 2009-NMSC-039, ¶ 31, 146

12 N.M. 488, 212 P.3d 376. “[I]f the factual basis for issuing the warrant is sufficiently

13 detailed in the affidavit, and the issuing court has found probable cause, the reviewing

14 courts should not invalidate the warrant by interpreting the affidavit in a

15 hypertechnical . . . manner.” Trujillo, 2011-NMSC-040, ¶ 19 (alteration, internal

16 quotation marks and citation omitted).

17 The Detective’s Direct Observations of the Unwitting Informant’s Conduct
18 Provide a Substantial Basis for Finding Probable Cause Existed

19        Except in limited circumstances, the Fourth Amendment of the United States

20 Constitution and Article II, Section 10 of the New Mexico Constitution require a

                                              6
 1 search warrant to be issued by a judge or magistrate before law enforcement may

 2 conduct a search of a location that they suspect contains evidence of a crime or

 3 ongoing criminal conduct. Trujillo, 2011-NMSC-040, ¶¶ 14-15; Evans, 2009-NMSC-

 4 027, ¶ 10. Before a search warrant may issue, law enforcement must present sufficient

 5 facts in a sworn affidavit so as to enable the issuing judge to make an informed,

 6 deliberate, and independent determination that probable cause exists. Williamson,

 7 2009-NMSC-039, ¶ 30; see also Rule 5-211(E) NMRA. The affidavit must provide

 8 sufficient facts to show that, at the time of the application for a search warrant,

 9 evidence relating to the crime exists at the location to be searched. Trujillo, 2011-

10 NMSC-040, ¶ 16. While there is no bright-line rule, the “degree of proof necessary

11 to establish probable cause is more than a suspicion or possibility, but less than a

12 certainty of proof.” Id. ¶ 16 (internal quotation marks and citation omitted). “When

13 ruling on probable cause, we deal only in the realm of reasonable possibilities, and

14 look to the totality of the circumstances to determine if probable cause is present.”

15 Williamson, 2009-NMSC-039, ¶ 31 (internal quotation marks and citation omitted).

16 Any search pursuant to a warrant based on an affidavit that is lacking in probable

17 cause is unreasonable and, therefore, unconstitutional. Id. ¶ 30.

18        The facts of Defendants’ case are nearly the same as those in State v. Lovato

19 (Lovato I), 117 N.M. 68, 70, 868 P.2d 1293, 1295 (Ct. App. 1993), where we held that


                                             7
 1 an affiant-detective’s direct observations of the conduct of an unwitting informant as

 2 described in the affidavit provided sufficient facts for the issuing judge to determine

 3 probable cause existed. In Lovato I, the affiant swore that an unwitting informant

 4 directed the affiant to drugs being sold at a hotel, the two then drove together to the

 5 hotel, and the informant agreed to cooperate in a controlled purchase of cocaine. Id.

 6 at 69, 868 P.2d at 1294. The unwitting informant repeated this routine later the same

 7 day. Id. The affiant stated he observed this activity within seventy-two hours prior

 8 to seeking a search warrant for the hotel room. Id. We viewed the affiant’s direct

 9 observation of the unwitting informant’s conduct as the affiant’s personal knowledge

10 and held the affiant’s “personal observations of the unwitting informant constituted

11 sufficient facts and circumstances to satisfy probable cause for the issuance of the

12 warrant.” Id. at 70, 868 P.2d at 1295.

13        Similarly, in this case, the affidavit contains the following facts: the unwitting

14 informant directed the detective to a specific location where they could buy cocaine,

15 and they drove there together. At the location, the experienced narcotics detective

16 gave the unwitting informant some money. He then observed the unwitting informant

17 approach and enter the apartment identified by the unwitting informant as the place

18 he could buy cocaine. The unwitting informant came out of the apartment a few

19 minutes later and returned directly to the detective’s vehicle where the unwitting


                                              8
 1 informant handed the detective a white rocky substance that later field tested as

 2 cocaine. We recognize that in Lovato I, the affiant twice observed the unwitting

 3 informant purchase drugs, as opposed to the detective’s single observation of the

 4 unwitting informant in this case. However, the number of purchases was not an issue

 5 in Lovato I, and we do not find that factual distinction relevant here, particularly as

 6 Defendants do not argue that the difference is material to our analysis. Consequently,

 7 as we held in Lovato I, the detective’s direct observations of the unwitting informant’s

 8 conduct in this case as described in the affidavit allowed the issuing judge, in

 9 considering the totality of the circumstances, to reasonably conclude that a drug buy

10 had occurred at the apartment. 117 N.M. at 70, 868 P.2d at 1295; see also Trujillo,

11 2011-NMSC-040, ¶ 16 (“[T]he degree of proof necessary to establish probable cause

12 is more than a suspicion or possibility but less than a certainty of proof.” (internal

13 quotation marks and citation omitted)); Williamson, 2009-NMSC-039, ¶ 31 (“When

14 ruling on probable cause, we deal only in the realm of reasonable probabilities[.]”

15 (internal quotation marks and citation omitted)).         We note—and the parties

16 agree—that a finding of probable cause in this case does not depend on hearsay and,

17 therefore, does not require an analysis under State v. Cordova, 109 N.M. 211, 212-13,

18 784 P.2d 30, 31-32 (1989). Accordingly, we defer to the conclusion of the issuing

19 judge and hold that the affidavit contained sufficient facts for the issuing judge to


                                              9
 1 reasonably infer that the unwitting informant provided law enforcement with credible

 2 information that drugs could be purchased at the apartment prior to the issuance of the

 3 search warrant.

 4 The Facts Contained in the Affidavit Were Not Stale

 5        Defendants argue that the information in the affidavit was stale because the

 6 detective’s direct observations did not provide sufficient facts to show that drug

 7 activity was ongoing at the apartment seventy-two hours later when the search

 8 warranted issued. State v. Rubio, 2002-NMCA-007, ¶ 5, 131 N.M. 479, 39 P.3d 144

 9 (“When an affidavit for search warrant does not contain sufficient information of

10 ongoing criminal activity, there is no probable cause for the issuance of the search

11 warrant.”). “We do not apply a fixed formula in determining staleness.” State v.

12 Gonzales, 2003-NMCA-008, ¶ 19, 133 N.M. 158, 61 P.3d 867. We evaluate the

13 particular facts of each case to determine whether they are stale. Id. In making this

14 determination, we consider the time elapsed, the character of the crime, the extent of

15 prior activity, the consumable or transferable nature of the items to be seized, the

16 information known about the suspect, and the location to be searched. State v.

17 Whitley, 1999-NMCA-155, ¶ 8, 128 N.M. 403, 993 P.2d 117.

18        Defendants point us to Whitley where we determined that the information in the

19 affidavit was stale because it was “deficient in supplying details from which the


                                             10
 1 issuing court could reasonably infer continuing drug activity” existed at the location

 2 to be searched. Id. ¶ 10. In Whitley, the affidavit at issue only reported one incident

 3 of the sale of marijuana at a motel room forty-eight hours previous and failed to

 4 provide any additional evidence of drug activity. Id. ¶ 2. As a result we held that the

 5 affidavit did not provide the issuing court with probable cause to support the search

 6 warrant. Id. ¶ 10.

 7        Similarly in State v. Lovato (Lovato II), we held that the affidavit for search

 8 warrant was insufficient to establish probable cause because the information was stale

 9 at the time of issuance. 118 N.M. 155, 158, 879 P.2d 787, 790 (Ct. App. 1994). Law

10 enforcement in that case witnessed a controlled buy of heroin by a confidential

11 informant at a motel room seventy-two hours prior to the issuance of the search

12 warrant. Id. at 156 n.2, 879 P.2d at 788 n. 2. The affidavit described the controlled

13 buy, id.; however, it did not contain any description of the amount of heroin

14 purchased, did not state whether illegal drugs and paraphernalia were present in the

15 motel room, and did not include any description of the individuals selling drugs or

16 whether they were the occupants of the hotel room. Id. at 158, 879 P.2d at 790. We

17 noted that although seventy-two hours would not necessarily be too long a time

18 between the observation of a drug sale by a reliable informant and the issuance of a

19 warrant to render the facts stale in every case, the affidavit was stale because without


                                              11
 1 more detail it failed to support a conclusion that drug trafficking was ongoing at the

 2 motel room. Id.

 3        The lapse of seventy-two hours between the observation of the facts contained

 4 in an affidavit and the issuing of the search warrant is not, in and of itself, fatal. Id.

 5 at 158-59, 879 P.2d at 790-91 (Bivens, J. specially concurring). In fact, we found a

 6 sufficient basis for probable cause where a search warrant issued seventy-hours after

 7 a detective witnessed a drug buy at a hotel room in Lovato I, 117 N.M. at 69-70, 868

 8 P.2d at 1294-95. Further, in Whitley and Lovato II, while we considered the lapse of

 9 time, we did so in the context of the place to be searched. Both cases involved motel

10 rooms, the occupants and contents of which are transient in nature, and neither

11 provided facts showing ongoing criminal activity in the rooms. Without facts

12 showing the likelihood of ongoing drug trafficking, the probability that the evidence

13 sought would still be at the location to be searched, even after forty-eight or seventy-

14 two hours, decreased to the point of rendering the information stale. See Whitley,

15 1999-NMCA-155, ¶¶ 5, 9; Rubio, 2002-NMCA-007, ¶ 8.

16        In this case, however, we conclude that the facts set out in the detective’s

17 affidavit are sufficient to establish probable cause to believe that evidence of drug

18 trafficking could be found at the apartment. See Trujillo, 2011-NMSC-040, ¶ 20

19 (“The fundamental inquiry is whether there is probable cause to believe there will be


                                               12
 1 evidence of a crime at a particular location.” (internal quotation marks and citation

 2 omitted)). Unlike Whitley and Lovato II, the location to be searched here was an

 3 apartment. Because a residence is more permanent in nature, there is a higher degree

 4 of probability that evidence of drug trafficking could still be found at the apartment

 5 after seventy-two hours than if the location to be searched was a motel room. See

 6 Rubio, 2002-NMCA-007, ¶ 8 (noting that a residence does not have the same

 7 transitory nature as a motel room). We recognize the affidavit would be even more

 8 persuasive if it contained additional information showing the informant’s credibility

 9 and reliability, information indicating the quantity of cocaine purchased, the existence

10 of illegal drugs and paraphernalia in the apartment, information regarding the

11 occupants of the apartment, or some other information tending to show ongoing

12 criminal activity. See id.; Lovato II, 118 N.M. at 158, 879 P.2d at 790. However,

13 under the facts and circumstances of this case, where the affidavit contains the

14 detective’s direct observation of what could reasonably be inferred to be a drug buy

15 by the unwitting informant at the residence, we conclude that seventy-two hours is not

16 so long a lapse of time as to render the information stale. Lovato II, 118 N.M. at 158,

17 879 P.2d at 790 (stating that seventy-two hours is not necessarily an extensive amount

18 of time between observation and issuance of a warrant). Therefore, because the

19 inferences drawn by the issuing judge are based on facts sufficiently detailed in the


                                              13
1 affidavit, we defer to those inferences and affirm the issuing judge’s finding of

2 probable cause.

3 CONCLUSION

4        We reverse the district court’s order granting Defendants’ motion to suppress

5 the evidence obtained as a result of the search warrant and remand the case to the

6 district court for further proceedings.

7        IT IS SO ORDERED.


8                                           __________________________________
9                                           LINDA M. VANZI, Judge

10 WE CONCUR:



11 _________________________________
12 TIMOTHY L. GARCIA, Judge



13 _________________________________
14 J. MILES HANISEE, Judge




                                             14
