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                                                                     New Mexico Compilation
                                                                   Commission, Santa Fe, NM
                                                                  '00'04- 11:27:58 2011.05.13

Certiorari Granted, May 3, 2011, No. 32,940

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-037

Filing Date: March 8, 2011

Docket No. 28,888

STATE OF NEW MEXICO,

       Petitioner-Appellee,

v.

SHANE R. VEST,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY
Donald C. Schutte, District Judge

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

for Appellee

Hugh W. Dangler, Chief Public Defender
Carlos Ruiz de la Torre, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                         OPINION

WECHSLER, Judge.

{1}     Defendant Shane Vest appeals his conviction, pursuant to a conditional plea
agreement, for distribution of marijuana and possession of drug paraphernalia. Defendant
appeals specifically from the district court’s denial of his motion to suppress. He argues that
no probable cause existed to issue a warrant to search his home because the State failed to
establish the veracity of its confidential informant. We hold that the informant’s

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participation in two controlled purchases of controlled substances did not sufficiently
establish the informant’s veracity and that the observations of the affiant law enforcement
officer of activity consistent with drug trafficking did not sufficiently corroborate the
informant’s observations to justify the issuance of the warrant. We therefore reverse.

BACKGROUND

{2}     The parties agree to the relevant facts in this case. On January 7, 2008, officers
executed a search warrant at Defendant’s residence, a green and white camping trailer. The
search warrant was signed by a magistrate judge and contained a supporting affidavit with
the following information:

       Affiant [a Village of Logan Police Officer] knows [Defendant’s] previous
       address was located at 102 Morningside in Logan, New Mexico where he
       lived in the same green and white camper trailer. Affiant has observed this
       residence on four occasions for approximately an hour. Affiant witnessed as
       many as seven vehicles and as few as two vehicles come to the residence and
       only stay for approximately five minutes. [Defendant] moved his trailer to
       the Arrowhead RV Park on [11-1-07] and Affiant has observed the same type
       of traffic.

       Within the past 48 hours a Region V Drug Task Force confidential informant
       was at the residence of [Defendant], 503 Highway 54, Arrowhead RV Park,
       Slip 33. While there the informant observed [Defendant] handling a large
       quantity of marijuana. The marijuana was packaged in clear sandwich type
       bags and stored in a clear zip-lock type bag. The informant described the
       quantity to be between ¼ pound and ½ pound.

       Affiant believes this informant to be credible because the informant has
       performed at least two supervised controlled purchases of quantities of
       controlled substances. The informant is familiar with [m]arijuana, its
       appearance and usage, through life experience and previous usage.

{3}   Upon executing the search warrant, officers found currency, guns, ammunition,
packaged quantities of marijuana, scales, packaging materials, and drug paraphernalia.
Defendant was charged with distribution of marijuana and possession of drug paraphernalia.

{4}     Defendant filed a motion to suppress in the district court, arguing that the informant’s
participation in two controlled buys did not establish his veracity. Defendant asserted that
the affidavit lacked the specificity to provide sufficient information for a magistrate to make
an independent determination as to the existence of probable cause to support the issuance
of a warrant.

{5}    The district court denied the motion to suppress. It specifically found that the

                                               2
magistrate could have reasonably concluded that the information was reliable based on: (1)
the officer’s personal observations of suspicious behavior at Defendant’s home; (2) the
informant’s capacity as an informant for the Region V Drug Task Force; (3) the informant’s
past illicit activity with controlled substances; (4) the informant’s personal relationship with
Defendant as demonstrated, and; (5) the informant’s participation in controlled buys that are
described as “at least two.” Defendant then entered a conditional plea, reserving the right to
appeal.

STANDARD OF REVIEW AND LEGAL FRAMEWORK

{6}     “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.” State v. Nyce, 2006-NMSC-026, ¶ 9, 139 N.M. 647, 137 P.3d 587. Probable cause
to issue the warrant requires a factual showing “that there is a reasonable probability that
evidence of a crime will be found in the place to be searched.” State v. Gonzales,
2003-NMCA-008, ¶ 12, 133 N.M. 158, 61 P.3d 867. We note this case involves the search
of a dwelling place, an area that is “ordinarily afforded the most stringent [F]ourth
[A]mendment protection.” State v. Clark, 105 N.M. 10, 12, 727 P.2d 949, 951 (Ct. App.
1986).

{7}     A search warrant may be issued when “sufficient facts are presented in a sworn
affidavit to enable the magistrate to make an informed, deliberate, and independent
determination that probable cause exists.” Gonzales, 2003-NMCA-008, ¶ 11; see also Rule
5-211 NMRA (describing issuance, contents, execution, return, and probable cause
requirements for search warrants). “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 (internal quotation marks and
citation omitted). “Thus, the magistrate must have sufficient facts upon which to conclude
that there is a reasonable probability that evidence of a crime will be found in the place to
be searched.” Id. In making this determination, we consider solely the information within
the four corners of the affidavit submitted in support of a search warrant. State v.
Williamson, 2009-NMSC-039, ¶ 31, 146 N.M. 488, 212 P.3d 376; see State v. Barker, 114
N.M. 589, 590, 844 P.2d 839, 840 (Ct. App. 1992).

{8}     With respect to probable cause determinations, our Supreme Court has recently
clarified the applicable standard of review.

               Our inquiry focuses on the issuing judge’s conclusion as to probable
       cause. In this case, that means we look at the magistrate’s conclusions, not
       the district court’s. If we conclude that the magistrate’s conclusions as to
       probable cause were correct, we uphold those conclusions regardless of the
       decision reached by the district court.


                                               3
State v. Evans, 2009-NMSC-027, ¶ 12, 146 N.M. 319, 210 P.3d 216.

{9}    “[A]n issuing court’s determination of probable cause must be upheld if the affidavit
provides a substantial basis to support a finding of probable cause.” Williamson, 2009-
NMSC-039, ¶ 29 (partially overruling all previous case law to the extent the case applies a
de novo rather than substantial basis standard of review).

       A reviewing court should not substitute its judgment for that of the issuing
       court. Rather, . . . 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.

Id. The Court has explained 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.” Id. ¶ 30. Accordingly, “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.” Id.
(alteration, internal quotation marks, and citation omitted).

{10}   In light of the foregoing considerations, we turn to the specifics of this case.

THE VERACITY PRONG OF THE AGUILAR-SPINELLI TEST

{11} With regard to hearsay statements made by informants, in State v. Cordova, 109
N.M. 211, 217, 784 P.2d 30, 36 (1989), our Supreme Court adopted, as a matter of state
constitutional law, the confidential informant test first formulated by the United States
Supreme Court in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393
U.S. 410 (1969), overruled in part by Illinois v. Gates, 462 U.S. 213 (1983). This test is
primarily aimed at confidential informants. See State v. Dietrich, 2009-NMCA-031, ¶¶ 12-
13, 145 N.M. 733, 204 P.3d 748 (noting that the identification of an informant by name is
a significant factor in determining the reliability of the information because a “named
informant has greater incentive to provide truthful information . . . than an unnamed or
anonymous individual” and explaining that the strictures of Aguilar-Spinelli are primarily
aimed at unnamed police informers (internal quotation marks and citation omitted)).

{12} In adopting the Aguilar-Spinelli test, our Supreme Court specifically rejected the
totality of the circumstances test set forth in Gates. See Cordova, 109 N.M. at 217, 784 P.2d
at 36. Our appellate courts have explained:

               The Aguilar/Spinelli test is designed to ensure that the court, rather
       than the police, make the determination that probable cause, based on reliable
       information, is present. Thus, the first prong of the test requires that the

                                              4
        affidavit include the factual basis for any conclusions drawn by the informant
        to enable the court to perform an independent analysis of the facts and
        conclusions. The second prong requires that facts be presented to the court
        to show either that the informant is inherently credible or that the information
        from the informant is reliable on this particular occasion. These
        requirements are often referred to as the basis of knowledge and veracity (or
        credibility) tests.

Barker, 114 N.M. at 591, 844 P.2d at 841 (internal quotation marks and citations omitted).
Thus, the allegations of an informant cannot provide probable cause to issue a search warrant
unless both the basis of the informant’s knowledge and the veracity of the informant are
demonstrated. See Cordova, 109 N.M. at 214, 784 P.2d at 33.

{13} Defendant does not appear to challenge the basis-of-knowledge prong of the test but
rather solely challenges the veracity of the informant. “Under the veracity prong, the
affidavit must set forth sufficient facts for the issuing judge to independently determine
either the inherent credibility of the informants or the reliability of their information.” State
v. Steinzig, 1999-NMCA-107, ¶ 18, 127 N.M. 752, 987 P.2d 409. In In re Shon Daniel K.,
this Court explained that:

                 Reliability of an informant may be established, among other ways, by
        showing that: (1) the informant has given reliable information to police
        officers in the past; (2) the informant is a volunteer citizen-informant; (3) the
        informant has made statements against his or her penal interest; (4)
        independent investigation by police corroborates informant’s reliability or
        information given; and (5) facts and circumstances disclosed impute
        reliability.

1998-NMCA-069, ¶ 12, 125 N.M. 219, 959 P.2d 553 (citations omitted); see State v. Knight,
2000-NMCA-016, ¶ 20, 128 N.M. 591, 995 P.2d 1033 (enumerating ways in which
reliability of an informant may generally be established, including past performance and
independent corroboration); Steinzig, 1999-NMCA-107, ¶¶ 21-24 (stating that the
informant’s credibility may be corroborated by law enforcement’s investigation and
observation); State v. Shaulis-Powell, 1999-NMCA-090, ¶ 13, 127 N.M. 667, 986 P.2d 463
(holding that an anonymous tip was adequately corroborated by the officers’ visit to the
location and observation of plants that appeared, based on the officers’ experience, to be
marijuana).

{14} Of the In re Shon Daniel K. factors, only the first and the fourth apply in this case.
First, the State concedes that the informant was not a volunteer citizen informant. Second,
we disagree with the State that the informant’s statement was made against penal interest.
Although the affidavit indicates “[t]he informant is familiar with [m]arijuana, its appearance
and usage, through life experience and previous usage,” we agree with Defendant that there
is nothing in this statement to suggest that the informant implicated himself in any crime for

                                               5
which he would have had a reasonable fear of prosecution. See, e.g., Barker, 114 N.M. at
592, 844 P.2d at 842 (reiterating that in order for a statement against penal interest to be used
to establish the credibility of the informant, there must be a nexus between the informant’s
statement against his penal interest and the criminal activity for which probable cause to
search is being established and explaining that past use by an informant generally will not
suffice as the nexus). Third, we see nothing in the affidavit that reasonably imputes
credibility or reliability. While the district court partially based its decision on the fact that
the informant was designated as a Region V Drug Task Force confidential informant, there
is nothing in the record indicating what that designation means or how it is achieved. For
example, there was no testimony as to the extent or nature of any screening process for such
informants. Nor do we agree that the details about packaging and storage of marijuana
provided by the informant establish the overall credibility or reliability of the informant. As
the State suggests, those details may be used to help establish the basis-of-knowledge test.
Id. at 591, 844 P.2d at 841. They are not, however, sufficient to establish the informant’s
credibility or reliability.

{15} We are therefore left with establishing the credibility or reliability of the informant
through the informant’s providing of past reliable information, through independent
corroboration, or through some other means. With regard to the informant providing past
reliable information, Defendant contends that the affidavit merely contained conclusory
assertions, rather than any actual evidence the informant had provided reliable information
in the past. To this extent, we agree with Defendant.

{16} By the very nature of the determination of probable cause, the analysis of the issuing
judge addresses the probabilities provided by the facts. See Nyce, 2006-NMSC-026, ¶ 10
(“When ruling on probable cause, we deal only in the realm of reasonable probabilities, and
look to the totality of the circumstances to determine if probable cause is present.”). The use
of a confidential informant necessarily involves a degree of risk as to the informant’s
veracity. Cf. Barker, 114 N.M. at 591, 844 P.2d at 841 (stating that the purpose of the
Aguilar-Spinelli test is to ensure the reliability of information used to make a probable cause
determination). The mere fact that a confidential informant has provided reliable
information in the past does not necessarily mean that the informant will do so again.
Knight, 2000-NMCA-016, ¶ 20. However, “[w]e accept past performance as indicia of
veracity because of the probability that the uncertain present result will be the same as in the
past.” Id.

{17} As to the past performance in this case, the affidavit states that the informant
observed Defendant with a large quantity of marijuana in Defendant’s residence. As the
basis for relying on this observation, that affidavit states that the “[a]ffiant believes this
informant to be credible because the informant has performed at least two supervised
controlled purchases of quantities of controlled substances.” The difficulty with this
statement is that it does not provide information that can assist the magistrate in weighing
the probabilities as to whether the informant is reliable. It does not indicate that the
informant provided any information in the past, only that the informant cooperated with

                                                6
officers while under supervision to make purchases of controlled substances. That is not to
say that the informant did not reliably assist officers in conducting controlled purchases, but
the activity the informant performed is not the same as that of providing reliable information
that officers then used to purchase controlled substances. Without more information
concerning the informant’s activity, the affidavit does not directly bear upon the informant’s
previous reliability in obtaining and relating information about criminal activity.

{18} We are mindful that our substantial basis analysis requires that we give deference
to the magistrate’s probable cause determination. Moreover, our case law recognizes that
minimal details can be sufficient to demonstrate a confidential informant’s reliability. For
example, in Cordova, our Supreme Court held that the affiant’s statement that the
confidential informant had provided information in the past that the affiant found to be true
and correct from personal knowledge and investigation was sufficient to justify a warrant.
Cordova, 109 N.M. at 217-18, 784 P.2d at 36-37. In State v. Montoya, 114 N.M. 221, 225,
836 P.2d 667, 671 (Ct. App. 1992), this Court held that the affiant’s statement that the
confidential informant had provided reliable information many times in the past was
sufficient to establish the credibility of the informant. However, we stress again that this
case is different. In Cordova and Montoya, the informants provided information in the past
that the affiant was able to determine was credible or reliable. In this case, the affidavit does
not state that the informant provided any previous information, but only that the informant
participated in controlled purchases.

{19} Nevertheless, even though the affidavit here was not sufficient to establish the
informant’s credibility or reliability based on the informant’s past performance, this
deficiency is not fatal to a probable cause determination if the affidavit otherwise
demonstrates the credibility or reliability of the informant’s information. As stated in the
fourth factor of In re Shon Daniel K., independent corroboration of an informant’s
information can fulfill this need. 1998-NMCA-069, ¶ 12.

{20} To justify the issuance of the warrant, the affidavit must demonstrate reasonable
grounds to conclude “(1) that the items sought to be seized are evidence of a crime; and (2)
that the criminal evidence sought is located at the place to be searched.” State v. Whitley,
1999-NMCA-155, ¶ 5, 128 N.M. 403, 993 P.2d 117 (internal quotation marks and citation
omitted). The affidavit, dated January 7, 2008, reported observations of the informant within
the previous forty-eight hours. The informant’s observations indicated that evidence of a
crime could be located at Defendant’s residence. The affiant, a police officer, stated that he
had observed Defendant’s residence on several earlier occasions, four times at its previous
location and at least once on or after November 1, 2007, at its current location. The affiant
witnessed multiple vehicles arriving at the residence and staying only for approximately five
minutes. Traffic patterns to and from a defendant’s home are relevant to whether a
defendant is trafficking controlled substances. See State v. Doe, 103 N.M. 178, 182, 704
P.2d 432, 436 (Ct. App. 1984) (stating that heavy traffic to and from a defendant’s home
supports an inference that the defendant is trafficking drugs).


                                               7
{21} The State contends that the affiant’s observations corroborate the informant’s
credibility or reliability. Defendant asserts, to the contrary, that the affiant’s information
does not corroborate the informant’s credibility or reliability because it was stale information
in that it did not pertain to ongoing criminal activities. While we agree with Defendant that
stale information does not provide probable cause for the issuance of a warrant, we must
view the affidavit as a whole in determining its sufficiency. Whitely, 1999-NMCA-155, ¶
3. The affiant’s information concerning his own observations of Defendant’s residence does
not, in itself, provide probable cause for the issuance of the warrant. See Nyce, 2006-NMSC-
026, ¶ 14 (stating that mere suspicion about ordinary, non-criminal activities does not
provide probable cause). However, even though information is not sufficient to provide
probable cause does not mean that it cannot serve as corroborative information of an
informant’s credibility or reliability. Certainly, if the affiant had made his observations in
the same time period addressed by the informant, the affiant’s information would corroborate
the informant’s observations and bear upon the informant’s credibility or reliability. See
State v. Donaldson, 100 N.M. 111, 116, 666 P.2d 1258, 1263 (Ct. App. 1983) (holding that
an affidavit was sufficiently reliable when law enforcement affiant detailed personal
observations and therefore corroborated information from a confidential informant).

{22} But the flaw in the State’s position is that there was no timely corroboration of the
informant’s information. Although the affiant had observed suspicious activity that was
consistent with drug trafficking, and his observations were further consistent with the
informant’s observations, the affiant could not corroborate the reliability of the informant’s
report that Defendant had present possession of marijuana. This information was essential
to the probable cause determination because the “privacy of a home is afforded the highest
level of protection by our state and federal constitutions.” Nyce, 2006-NMSC-026, ¶ 12.
If the informant’s report were correct, we presume that the affiant could have corroborated
it by additional surveillance. However, without it or other present information that
corroborated the informant’s information, the magistrate did not have a substantial basis to
conclude that the informant was reliable.

CONCLUSION

{23} We reverse the district court and hold that the affidavit was insufficient to support
a finding of probable cause to issue the warrant.

{24}   IT IS SO ORDERED.

                                               ______________________________________
                                               JAMES J. WECHSLER, Judge
WE CONCUR:

______________________________________
CELIA FOY CASTILLO, Chief Judge


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______________________________________
JONATHAN B. SUTIN, Judge

Topic Index for State v. Vest, Docket No. 28,888

AE                          APPEAL AND ERROR
AE-SR                       Standard of Review

CT                          CONSTITUTIONAL LAW
CT-FA                       Fourth Amendment

CL                          CRIMINAL LAW
CL-CL                       Controlled Substances

CA                          CRIMINAL PROCEDURE
CA-IR                       Informer
CA-MR                       Motion to Suppress
CA-PA                       Probable Cause
CA-SW                       Search Warrant




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