Petition — Garcia v. New Mexico

9

Supreme Court, U.& 78]

FILED ;

| OCT T1978

| _MI@HAEL RODAK, JR., CLERK |

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term, 1978

No %8-704

LUPE GARCIA, Petitioner

STATE OF NEW MEXICO, Respondent

LOLOL NN IN NN I

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW MEXICO

LLL GIN IG

Jack Albert Smith

420 Lomas NW

Albuquerque, New Mexico 87102

Telephone (505) 242-2766

Counsel for Petitioner

Dah Mk PVR h whe

INDEX

Jogi i 8 pauaute eae

GROUND JON WHICH JURISDICTION

I nhc n ts ioe chad as Sasun eeces

QUESTIONS PRESENTED ...............

CONSTITUTIONAL PROVISIONS

INVOLVED ....... LE NED A ROC Ten EO Ea

REASONS FOR GRANTING CERTIORARI

A. THE AFFIDAVIT UNDERLYING THE

SEARCH WARRANT DOES NOT ES-

TABLISH PROBABLE CAUSE AS IS

REQUIRED BY THE FOURTH

a iccaS ine e a oe keene eeu le

B. THE TRUTHFULNESS OF THE AF-

FIDAVIT UNDERLYING THE SEARCH

WARRANT IS IN QUESTION .........

C. THE AFFIDAVIT IN THE INSTANT

CASE WAS ALTERED BY THE ASSIS-

TANT DISTRICT ATTORNEY, THUS

PROBABLY CAUSE FOR ISSUANCE

OFA SEARCH WARRANT WAS NOT

ESTABLISHED BY A NEUTRAL AND

DETACHED DISTRICT JUDGE SIT-

TING AS A MAGISTRATE ............

10

il

INDEX ~— Continued

Page

i Ga eS in FU: Se npc SRO mI ae 13

APPENDIX A — Memorandum............ 15

APPENDIX B — Reported Opinion ........ 17

APPENDIX C — Stipulation Of Facts...... 23

CASES

Page

Aguilar v. Texas, 378 U.S. 108, 84S. Ct. 1509, 12 L.

ee I OG Ce ace ey 7,8

Coolidge v. New Hampshire, 403 U.S. 443, 91S. Ct.

2022, 29 L. Ed. 2d 564 (1971) ............... 11, 13

Franks v. United States, 98 S. Ct. 2674, 57 L. Ed. 2d

SNES carpet tek Grae ae EE eee et bean 8

Mancusi v. Deforte, 392 U.S. 364, 88 S. Ct. 2120, 20

we | a ee 12

Nathanson v. United States, 290 U.S. 41, 54 S. Ct.

By Oe Ba es RO CAMO ca ed ec bcsesccces 6

Sgro v. United States, 287 U.S. 206, 53 S. Ct. 138, 77

Ses SE A hoes woe GOS ea le wets 7, 22

Spinelli v. United States, 394 U.S. 410, 89S. Ct. 584,

Be Ba, es ee eT A sl ccc de etivewes 8

State v. Gutierrez, 91 N.M. 542, 577 P.2d (Ct. App.

1978)

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1978

No.

LUPE GARCIA, Petitioner

STATE OF NEW MEXICO, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW MEXICO

Petitioner, LUPE GARCIA, respectfully prays that a

Writ of Certiorari issue to review the Judgment and opinion

of the Court of Appeals of the State of New Mexico entered on

July 31, 1978. =

2

!

OPINION BELOW

The unreported Memorandum Opinion of the New

Mexico Court of Appeals is attached as Appendix “A”.

A decision of that Court on the interlocutory appeal in

this matter is reported at 90 N.M. 577, 566 P.2d 426 (Ct. App.

1977), and is attached as Appendix “B”. That opinion re-

versed the trial court’s ruling on Petitioner’s Motion to Sup-

press Evidence and remanded the case for trial. There are no

other reported opinions in this matter.

il

GROUND ON WHICH JURISDICTION IS INVOKED

The final judgment of the New Mexico Court of Appeals

was entered on the thirty-first day of July, 1978. This Peti-

tion For Writ of Certiorari was filed within ninety (90) days

of that date. The jurisdiction of this Court is invoked under

28 U.S.C. 1257(3).

Hl

QUESTIONS PRESENTED

1. Whether the New Mexico Court of Appeals erred in

warrant in which the affidavit failed to establish probabl

cause.

2. Whether the New Mexico Court of Appeals erred in

not granting Petitioner a hearing into the truthfulness of

statements contained in the affidavit after the Petitioner

made a preliminary showing that statements contained in

the affidavit were false.

holding admissible evidence obtained pursuant to a af

FZ,

3

3. Whether the New Mexico Court of Appeals erred in

upholding the validity of an affidavit for search warrant that

was prepared in part by the Assistant District Attorney who

was to prosecute the matter at trial.

IV

CONSTITUTIONAL PROVISIONS INVOLVED

The federal constitution provision involved is the

Fourth Amendment of the United States Constitution:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures shall not be violated, and no war-

rant shall issue, but upon probable cause, supported by

oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be

seized.

V

STATEMENT OF THE CASE

On the morning of the tenth day of September, 1976,

Deputy Sheriff Michael Parra prepared an affidavit for a

search warrant. Parra presented the affidavit to Assistant

District Attorney James Blackmer for approval. Blackmer

did not approve the affidavit as Parra had prepared it.

Blackmer added information to the affidavit and then ap-

proved it. Deputy Sheriff Parra then proceeded to District

Judge Joseph Ryan with the affidavit. Judge Ryan issued

Parra a search warrant based on the affidavit to which Parra

had sworn in front of the Honorable Judge Ryan. On the

afternoon of the tenth day of September, 1976, Deputy Parra

and other deputy sheriffs executed the search warrant at

Petitioner’s residence, finding and seizing a certain amount

of heroin, methadone, and other evidence. Petitioner was

arrested by the Sheriffs deputies.

4

Petitioner filed a motion to suppress the evidence seized.

A hearing was held on that motion on the seventeenth day of

December, 1976. District Judge James A. Maloney entered

an Order suppressing the evidence seized. The State ap-

pealed the trial court’s decision, whereupon the New Mexico

Court of Appeals reversed the District Court, holding that

the evidence was admissable. The New Mexico Supreme

Court denied Certiorari on this matter. Upon removal to the

District Court of the State of New Mexico, Bernalillo

County, an Amended Motion to Suppress was heard. At said

hearing it was established that the Assistant District Attor-

ney added language to the affidavit search warrant by a

different typewriter which said that informant last observed

heroin sales by Defendant at the described premises between

August 10 and September 10, 1976. Additionally, evidence

was presented that the Defendant was hospitalized, and not

at his residence, throughout the period of August 24, 1976,

and September 1, 1976. The trial court denied the Amended

Motion to Suppress. A stipulated facts trial was held. The

stipulation of facts for a non-jury trial is attached hereto as

Appendix “C”. The Petitioner was found guilty. Petitioner

appealed to the New Mexico Court of Appeals where the

conviction was summarily upheld without an opinion. Thus

the Court of Appeals refused to consider the fact that the

truth of the affidavit for search warrant had been put in

question, which fact was not before it on the first appeal

decided May 17, 1977.

The New Mexico Supreme Court denied Certiorari and

the New Mexico Court of Appeals entered its mandate on the

thirty-first day of "ly, 1978.

VI

REASONS FOR GRANTING CERTIORARI

The decision of the New Mexico Court of Appeals is in

conflict with the decisions of this Court, and is in conflict

5

with its own prior decisions. The New Mexico Court of Ap-

peals did not take its own prior decisions, or wel!-established

rules of law as decided by this Court into consideration when

deciding the issues presented by Petitioner.

A. THE AFFIDAVIT UNDERLYING THE

SEARCH WARRANT DOES NOT ESTAB-

LISH PROBABLE CAUSE AS IS REQUIRED

BY THE FOURTH AMENDMENT.

The Foukth Amendment provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

warrant shall issue, but upon probable cause supported

by oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be

seized.

The Fourth Amendment is clear in its language that a

valid search warrant may only be issued upon an affidavit

which is sufficient to demonstrate to a Magistrate or other

judge that probable cause exists for the issuance of such a

warrant.

The affidavit underlying the search warrant in the in-

stant case, attached hereto with Appendix “C”, does not by

itself establish probable cause. The affidavit is unable to

place any contraband in Petitioner's residence during the

time period covered by the affidavit, August 10, 1976,

through September 10, 1976.

The affidavit contains statements made by four differ-

ent individuals, the affiant, Deputy Sheriff Parra, and three

unnamed informants who gave information to Deputy

Parra. As is demonstrated by the affidavit, Deputy Parra

6

had no independent knowledge of his own and relied solely

upon the statements made by the three unidentified infor-

mants. Probable cause then, if it is to be established at all,

must be established solely on the statements made by the

informants, and not on the statements made by either the

affiant or others.

One confidential informant claims to have purchased

heroin from the Petitioner a full month prior to the date of

the affidavit and warrant. The affidavit makes no mention of

how much heroin was purchased or where the transaction

took place. The affidavit does not claim that the transaction

took place at the Petitioner's residence. This same informant

also claims to have seen heroin at Petitioner's residence, but

not within the time period covered by the affidavit.

All three informants claim that Petitioner is involved in

the trafficking of heroin and uses heroin. From these state-

ments, Parra assumed that Petitioner had a supply of heroin

in his home on the tenth day ofSeptember, 1976, the date of

the affidavit. When the statements of all three informants

are taken on their face, they cannot place any heroin or other

contraband in Petitioner's residence at any time within the

one month period covered by the affidavit.

Based upon information that Parra had recieved, that

Petitioner used and sold heroin, Deputy Parra had suspi-

cions that Petitioner did possess heroin on the tenth day of

September, 1976, but as stated in the affidavit, this is only

an assumption based upon what Parra had been told. This

Court has found search warrants invalid when the affidavit

underlying the warrant was based upon suspicion or belief.

(Nathanson v. United States, 290 U.S., 41, 54S. Ct. 11, 78 L.

Ed. 159 (1933)).

As for the information contained in the affidavit of

events occurring more than one month prior to the issuance

7

of the warrant, this Court has held in Sgro v. United States,

287 U.S. 206, 53 S. Ct. 138, 77 L. Ed. 260 (1933) that:

While the statute does not fix a time with which

proof of probable cause must be taken by the judge or

commissioner, it is manifest the proof must be of facts so

closely related to the time of the issue of the warrant as

to justify a finding of probable cause at that time. (Page

210)

The information contained in the affidavit cannot place

any contraband in the Petitioner's residence during the time

period covered by the affidavit; therefore any allegation of

contraband in the Petitioner’s residence is so old as to be

stale, and thus not supportive of a finding of probable cause

for the issuance of a search warrant on the tenth day of

September, 1976.

This Court has set several standards by which affidavits

underlying search warrants are to be judged. In Aguilar v.

Texas, 378 U.S. 108, 84S. Ct., 1509, 12 L. Ed. 2d 723 (1964),

the Court set a two-pronged test: (1) The information must

be demonstrated to be reliable, and (2) the informant must

be demonstrated to be reliable. According to Agui/ar, supra,

both tests must be met if probable cause is to be determined.

In the instant case, the affidavit does demonstrate the reli-

ability of the informants, but fails to demonstrate the relia-

bility of the information. Affiant Parra failed to conduct an

independent investigation in order to determine the reliabil-

ity of the information given to him by his informants. The

affidavit contains no statement by the affiant or any other

law enforcement official that Petitioner lived at the de-

scribed residence, that he had in the past been suspected of

any criminal activity, that he had been observed by affiant

or other law enforcement officials either going to or coming

from the residence described, or that there was an unusual

amount of traffic to and from the residence described, as

8

would be consistent with selling heroin. Insum, the affidavit

contains no facts to support the credibility of the hearsay

information relied upon by the affiant.

If the two-pronged test of Agui/ar, supra, cannot be met,

this Court has given law enforcement officials another route

to follow. In Spinelli v. United States, 394 U.S, 410, 89S. Ct.

584, 21 L. Ed. 2d 637 (1969), this Court held, absent the proof

of probable cause required by Aguilar, supra, if there is

sufficient detail in the affidavit, it will meet the probable

cause requirements of the Fourth Amendment. The affidavit

contains no statements as to where in Petitioner’s home any

heroin might be found, or in what quality or quantity any

heroin found might be. There are no statements in the af-

fidavit as to how any heroin found might be packaged or

prepared for sale. The affidavit contains no statements as to

how the Petitioner might have obtained any heroin, or how

and to whom the Petitioner may distribute any heroin,

The prior decisions of this Court in both Aguilar and

Spinelli, supra, are clear in their language as to what infor-

mation an affidavit must contain in order to establish proba-

ble cause. The affidavit in the instant case cannot meet the

tests set forth by this Court and therefore does not de-

monstrate probable cause that the Petitioner possessed her-

oin in his home on the tenth day of September, 1976, the day

that the warrant was issued. As such, the resulting search of

Petitioner's home was without probable cause and was un-

reasonable under the Fourth and Fourteenth Amendments

to the Constitution of the United States.

B. THE TRUTHFULNESS OF THE AFFIDAVIT

UNDERLYING THE SEARCH WARRANT IS IN

QUESTION,

Because of the receiit decisions in Franks v. United

States, 98 S, Ct. 2674, 57 L. Ed. 2d 667 (1978) and State v.

9

Gutierrez, 91 N.M. 542, 577 P.2d 440 (Ct. App. 1978),

Petitioner may challenge the truthfulness of the affidavit

underlying the search warrant. These two recent cases held

that a defendant in a criminal proceeding may challenge the

truthfulness of an affidavit underlying a search warrant.

This Court in Franks, supra, set forth the conditions

that must be met by the Petitioner in order to gain a hearing

on the truthfulness of the information contained in the af-

fidavit. Petitioner must bear the burden of making a pre-

liminary showing that statements made in the affidavit are

false, and that if such statements were eliminated, there

would be no probable cause on which to base the issuance of a

search warrant.

The affidavit here contains statements that Petitioner

“(H)as an on-going heroin trafficking business from the

above described house .. .” This statement and other state-

ments relating to continuous activity are necessary to a

finding of probable cause. Without them, all other state-

ments in the affidavit are insufficient to establish probable

cause due to staleness.

Any statements contained in the affidavit which allege

that Petitioner had an on-going heroin trafficking business

from his residence during the time period August 10, 1976,

to September 10, 1976 are false. Paragraph “L” of the Stipu-

lation of Facts for a non-jury trial (Appendix “C”) states,

“The parties stipulate that Defendant (Petitioner here) was

hospitalized on a 24 hour basis throughout the period Au-

gust 24, 1976 - September 1, 1976.” The Petitioner was not

at this residence for one-third of the time period that affiant

Parra swore to information that claimed Petitioner had an

on-going business from his home. It is obvious that

Petitioner could not have had such a business if he was

confined to a hospital bed and was not present in his home.

10

This inconsistency was presented to the New Mexico

Court of Appeais. Yet even in light of their own prior deci-

sion in State v. Gutierrez, supra, which allows for a hearing

into the truthfulness of an affidavit once a preliminary

showing of false statements had been made, affirmed

Petitioner’s conviction without an opinion. This inconsis-

tency was not presented to the New Mexico Court of Appeals

at the time of their decision and opinion concerning

Petitioner’s motion to suppress evidence, but was presented

on appeal from the conviction.

C. THE AFFIDAVIT iN THE INSTANT CASE WAS

ALTERED BY THE ASSISTANT DISTRICT AT-

TORNEY, THUS PROBABLE CAUSE FOR IS-

SUANCE OF A SEARCH WARRANT WAS NOT

ESTABLISHED BY A NEUTRAL AND DE-

TACHED DISTRICT JUDGE SITTING AS A

MAGISTRATE.

Paragraph “I” of the Stipulation of Facts for a non-jury

trial, Appendix “C”, states that the Assistant District Attor-

ney, James B. Blackmer, made additions to the affidavit that

Deputy Sheriff Parra presented to him for approval. Black-

mer made the following additions to the affidavit:

Informant #1 has given BCSO narcotics officers

information that has resulted in seizures of heroin on at

least two occasions and arrests of several persons pos-

sessing and trafficking it. Although this informant #1’s

latest observation of heroin sales by LUPE GARCIA at

above-described residence was during the period 10

August 1976 to 10 September 1976, nevertheless, In-

formant #1 has been at Lupe Garcia’s above described

premises on numerous other prior occasions, and during

these prior occasions, Lupe Garcia has had heroin at

above described premises for sale, and informant has

seen heroin there on numerous occasions. According to

li

Informant #1 (and 2 and 3), Lupe Garcia has an on-go-

ing heroin trafficking business from above described

house, and therefore, he has to keep a large quantity of

heroin in stock at all times to supply his subordinate

pushers and other heroin customers, keeping them com-

ing back to him, and making money from them. Fur-

thermore, he has not been arrested or searched in the

past month or two (to affiant’s knowledge), and thus he

has no incentive to quit dealing heroin, cease or di-

minish acquiring and selling heroin etc. Additionally,

all 3 informants independently of one another and

based on personal observations (or hearing admissions

by Garcia) state that LUPE GARCIA uses heroin at his

above-described house — and he will need heroin daily

to supply his habit, as well as have heroin parapher-

nalia to inject such heroin after cooking it.

Blackmer than wrote on the affidavit, “Reviewed and ap-

proved 10 September 1976 at 12:13 P.M. (with above addi-

tions and corrections)” and then Blackmer signed the af-

fidavit before affiant Parra proceeded to the judge for formal

issuance of the search warrant. Deputy Sheriff Parra then

swore to the affidavit (with Blackmer’s additions) in front of

Judge Ryan, who issued the warrant at 3:16 P.M. on Sep-

tember 10, 1976.

Blackmer’s additions were added to cure an otherwise

fatally defective affidavit. If Blackmer had to sign the af-

fidavit as being approved prior to a judge issuing a warrant,

is the judge leaving the determination of probable cause to

the District Attorney’s Office?

In Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct.

2022, 29 L. Ed. 2d 564 (1971), the State’s Attorney General,

acting in his capacity as Justice of the Peace, issued a search

warrant in a case in which he took over the investigation and

then prosecuted. This Court held that the Attorney General

12

was not the neutral and detached magistrate required by the

United States Constitution and that the warrant was in-

valid. In the present case, the requirement that affidavits for

search warrants be approved by the District Attorney’s Of-

fice, and the probability of the judge’s reliance on that ap-

proval as indicating probabie ceuse exists, is tantamount to

the District Attorney’s Office having the ability to issue

search warrants.

This Court in Mancusi v. Deforte, 392 U.S. 364, 88S. Ct.

2120, 20 L. Ed. 2d 1154 (1968), held that a District Attor-

ney’s subpoena duces tecum does not constitute a search

warrant for the same reasons that the Court in Coolidge

supra, held that warrant was invalid.

The often competitive business of ferretting out crimi-

nal activity makes it imperative that a neutral and detached

magistrate perform his duties of determining the existence

of probable cause prior to issuing a search warrant, and not

let the Assistant District Attorney, who is to try the case

make such a determination. The public needs to be protected

from the over zealous prosecutor. The Constitution makes

absolute the right of the people te be secure in their homes

against unreasonable searches. As the Court stated in Sgro

v. United States, supra:

The proceeding by search warrant is a drastic one. Its

abuse led to the adoption of the Fourth Amendments,

and this, together with legislation regulating the pro-

cess, should be liberally construed in favor of the indi-

vidual (Page 210)

The prosecutor did not take an oath at the issuance of

the warrant, nor did he take an oath at any subsequent

hearing or trial resulting from that warrant. The prosecutor

cannot place words in the mouths of his witnesses, nor can he

testify, yet in the instant case, the prosecutor was able to

13

draft and approve the document that secured the evidence

for his case and insured its introduction at trial.

vil

CONCLUSION

For reasons and authorities stated, it is respectfully

requested that Petitioner’s Writ of Certiorari be granted,

and that the Judgment of the New Mexico Court of Appeals

be reversed.

Respectfully submitted,

Jack Albert Smith

420 Lomas NW

Albuquerque, New Mexico 87102

Telephone (505) 242-2766

Counsel for Petitioner

15

APPENDIX A

IN THE COURT OF APPEALS OF THE

STATE OF NEW MEXICO

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v. No. 3621

LUPE GARCIA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT

OF BERNALILLO COUNTRY

Maloney, Judge

TONEY ANAYA, Attorney General

Santa Fe, New Mexico Attorney for Appellee

JACK SMITH

Albuquerque, New Mexico Attorney for Appellant

MEMORANDUM

Summary affirmance was proposed for reasons stated in

the calendar assignment. The memorandum in opposition is

based on speculation that the affiant swore falsely, but the

parties stipulated that affiant swore to the material added

by the assistant district attorney. There is no claim of false

swearing, only speculation. No cause has been shown why

there should not be summary affirmance.

The judgment and sentence are affirmed.

IT IS SO ORDERED.

JOE W. WOOD

Chief Judge

HAZEL M. DAVIS,

Clerk

Samm

17

APPENDIX B

IN THE COURT OF APPEALS OF THE

STATE OF NEW MEXICO

STATE OF NEW MEXICO,

Plaintiff-Appellant,

We

LUPE GARCIA,

Defendant-Appellee. No. 2822

APPEAL FROM THE DISTRICT COURT

OF BERNALILLO COUNTY

MALONEY,

Judge

TONEY ANAYA, Attorney General

ERNESTO J. ROMERO, Asst. Attorney General

Santa Fe, New Mexico

Attorneys for Plaintiff-Appellant

JACK SMITH

Albuquerque, New Mexico

Attorney for Defendant-Appellee

OPINION

WOOD, Chief Judge Yi

This appeal by the State involves the legal sufficiency of

an affidavit for a search warrant. The trial court granted

defendant’s motion to suppress the evidence seized in the

search pursuant to the warrant. It did soon the basis that the

information recited in the affidavit was stale and therefore

18

did not supply probable cause for issuance of the warrant.

We discuss: (1) reliability of information supplied to the

judge issuing the warrant, (2) staleness of the information in

the affidavit, and (3) reliability of the informants.

Reliability of the Information Supplied to the Judge

The appeal was originally assigned to the “Legal”

calendar on the basis that “staleness” would be determined

by the affidavit contained in the district court file. Defen-

dant moved for reassignment of the case to the “Limited”

calendar, claiming that the staleness issue had been deter-

mined on the basis of evidence presented at the suppression

hearing. After hearing argument on the motion to reassign,

there was a question as to whether the trial court had tried

the truthfulness of the affidavit. Our concern was based on

State v. Baca, 84 N.M. 513, 505 P.2d 856 (Ct. App. 1973).

Accordingly, we granted the motion and reassigned the case

to the “Limited” calendar. See N.M. Crim. App. 207(b) and

(Cc).

In Baca, supra, defendant contended that he had a right

to challenge the truthfulness of the allegations in the af-

fidavit. Baca points out that the decisions in other states are

in conflict as to when such attacks are permissible. Baca

states:

“Although we incline to the view that an attack is

permissible if the claim is that the allegations are per-

jurious, we do not decide the question of when attacks

should be allowed. Whenever other jurisdictions have

allowed an attack, it has been directed to the truthful-

ness of the affiant’s allegations. In this case, defendant

did not attack the truthfulness of the statements made

by the officers who signed the affidavit; the attack was

on the truthfulness of the information received from an

informer.”

19

The transcript of the suppression hearing shows there

was no attack on the truth of the affiant’s allegations. Ac-

cordingly, the question of when such attacks should be al-

lowed is not an issue in this case.

Staleness of the Information in the Affidavit

The affidavit sought a warrant to search a described

premises, and the defendant, for heroin and paraphernalia

used in connection with heroin. The affidavit sets forth in-

formation that the affiant officer received from three infor-

mants. The affidavit recites that informant I “has persenally

purchased heroin from the above subject at above premises

the latest being approximately one month ago.”

Defendant relies upon this one-month delay to support

his contention of no probable cause because of stale informa-

tion. The significance of this time factor depends on whether

there was an isolated transaction or a continuing series of

events. United States v. Johnson, 461 F.2d 285 (10th Cir.

1972): United States v. Harris, 482 F.2d 1115 (3rd Cir. 1973).

See footnote 9 in Andreson v. Maryland, USS. ,49

L.Ed.2d 627, 96 S. Ct. 2723 (1976); footnote 2 in United

States v. Harris, 403 U.S. 573, 29 L..Ed.2d 723, 91S. Ct. 2075

(1971). As stated in State v. Austria, 524 P.2d 290, 294

(Hawaii 1974):

“If there is a reasonable basis in the affidavit for the

conclusion that the criminal activity alleged by the

informer is of a continuing, on-going nature, the pas-

sage of time between the informer’s last observations of

that activity and the issuance of the warrant is less

significant than when no such showing is made in the

affidavit.”

The affidavit contains a reasonable basis for concluding

that defendant was engaged in criminal activity of a con-

tinuing, on-going nature. The affidavit recites:

20

1. Informant I last observed heroin sales by defendant

at the described premises between August 10 and

September 10, 1976.

2. Informant I had been at the described premises on

numerous occasions, and on those prior occasions

defendant had heroin for sale. Also, that informant |

had seen heroin on the premises on numerous occa-

sions.

3. All three informants, independently of one another,

state that defendant uses heroin and needs heroin

daily to supply his habit. These statements were

based either on the informant’s personal observa-

tions or admissions by defendant.

The foregoing shows a continuing activity in connection

with heroin up to the date of the affidavit, which was Sep-

tember 10, 1976.

Affidavits are to be read with common sense. United

States v. Harris, 403 U.S. 573, supra; State v. Bowers, 87

_N.M. 74, 529 P.2d 300 (Ct. App. 1974). The above informa-

tion was sufficient for the judge who issued the search war-

rant to conclude there was a probability of criminal conduct.

State v. Bowers, supra. The affidavit does not show stale

information.

Reliability of the Informants

‘Defendant asserts that one cannot base probable cause

on the continuing conduct recited in the affidavit. He asserts

that the continuing conduct supplied by the informants can-

not be considered because the reliability of the informers is

not shown. Once the continuing conduct is eliminated, de-

fendant asserts the only information left to support probable

cause is a one-month-old purchase by one informer. We dis-

agree.

21

Although Hudson vy, State, 89 N.M. 759, 557 P.2d 1108

(1976) does not refer to United States v. Harris, 403 U.S. 573,

supra, it does follow the approach used in Harris. That ap-

proach is to determine whether there was a substantial basis

for believing there is a factual basis for the information

furnished, In this case the question is whether there is a

substantial basis for believing the information received from

the informants was based on fact rather than rumor or

speculation.

Here, we liave informant I’s purchase of heroin (See

State v. Archuleta, 85 N.M. 146, 509 P.2d 1341 (Ct. App.

1973)), his past observations of heroin on the premises and

his observations of sales from the premises during the month

prior to issuance of the search warrant. We also have all

three informants stating, either on the basis of personal

observations or admissions from the defendant, that defen-

dant is a daily heroin user. The affiant also states that the

informants have provided information in the past which led

to the arrest of several persons for possession and trafficking

in heroin. See United States v. Harris, 403 U.S. 573, supra.

The judge who signed the warrant could conclude from the

foregoing that the informants were reliable.

Defendant complains of other statements in the af-

fidavit. We need not consider them. The statements in the

affidavit discussed in this opinion show a substantial basis

for believing the informants.

The trial court erred in granting the motion to suppress

on the basis that the information in the affidavit was stale.

The order granting the motion is reversed. The cause is

remanded with instructions to deny the motion to suppress.

IT IS SO ORDERED.

JOE W. WOOD

Chief Judge

23

APPENDIX C

STATE OF NEW MEXICO DISTRICT COURT

IN THE COUNTY OF BERNALILLO

STATE OF NEW MEXICO,

Plaintiff

Vv. NUMBER 28040, Criminal

LUPE GARCIA,

Defendant.

STIPULATION OF FACTS

FOR NON-JURY TRIAL

PLAINTIFF, State of New Mexico, by and through un-

dersigned counsel, Assistant Attorney General James F.

Blackmer, and the Defendant himself, LUPE GARCIA, and

his Defense Counsel, Mr. Jack Smith, Esq., each and all

agree and stipulate (as shown by their signatures subscribed

below):

1. The Defendant and his Counsel and the State have

each and all waived their right to trial by Jury by written

Waiver filed in this cause 19 December 1977. That waiver is

still effective and controls the trial herein. Trial in this cause

commenced before this Court on 31 January 1978, within the

period of time agreed upon by Defendant and his counsel.

2. Defendant and his counsel and the State of New

Mexico now each and all agree that trial of this matter shall

continue before the Court (Honorable James A. Maloney)

without a jury, and shall be on the below facts, stipulated by

the parties as true for purposes of this trial.

3. The Defendant again raises —and does not

24

waive — each and all of his motions previously filed and

litigated in this Court (including, but not limited to, each

and all of his motions to suppress evidence and statements,

and Defendant’s motions to reconsider motion to suppress,

and any and all other motions previously filed by the Defen-

dant and denied by this Court and/or the New Mexico Court

of Appeals and Supreme Court). Each and all these issues

and motions are preserved before, during, and after this trial

and on any appeal(s) thereafter, and are not waived in any

way by this trial or method of trial.

4. The State of New Mexico will dismiss, and hereby

does dismiss at this point COUNT II of the Indictment

(charging intentional possession of Methadone, a Schedule

II narcotic drug), and trial will proceed before this Court

without a jury, and on below stipulated facts, ONLY on

Count I of the Indictment (i.e., “possession with intent to

distribute heroin”). Additionally, because this is a Control-

led Substances charge and for other reasons, the State cer-

tifies that the State will not seek, file, or prosecute any

habitual Information or charges or documents of a similar

nature in this cause to enhance any sentence in the present

cause in the event Defendant is found Guilty and convicted

by this Court of Count I of this 28040 Indictment. Therefore,

if Defendant is convicted, the maximum sentence the Court

could impose is 10-50 years imprisonment, and/or a fine not

to exceed $10,000.

5. The State hereby certifies that if the Defendant is

found Guilty and convicted by this Court of Count I of the

Indictment 28040 herein, that this would be Defendant’s

first felony charge or conviction since 1965 (also, Defendant

has never been convicted of any felony other than a 4th-de-

gree felony: a “Forgery of Endorsement” conviction in 1957

in Bernalillo County Criminal Cause 13855, and a

burglary/assault conviction in 1965 in Bernalillo County

Criminal Cause 17029). Additionally, at the time of the

25

Sheriff Department search of Defendant and his house in

this present cause 10 September 1976, the Defendant was

polite and cooperative with police — so much so that the

officers did not even handcuff the Defendant at his arrest.

Additionally, Defendant has not been arrested, indicted, or

prosecuted on any other felony charge(s) since the present 10

September 1976 incident, resulting in this Indictment

28040.

STIPULATION OF FACTS

As pointed out above, the Defendant and his counsel

again renew their objections to introduction into evidence by

the State of any alleged heroin, or laboratory analysis of any

such alleged heroin, or statements allegedly made by the

Defendant to or in the hearing of law enforcement officers,

and hereby renews all motions filed or litigated in this cause

to suppress such heroin evidence (or laboratory analysis of

it), Defendant’s statements to police, etc.

However, the Court having refused to suppress such

evidence, and hereby adhering to these rulings, the State

and the Defendant and his counsel each and all agree that

the following facts occurring on or after 10 September 1976

upon which the Court shall determine the guilt or innocence

of the Defendant on Count I of this Indictment 28040 (“Pos-

session with intent to distribute Heroin”); the below stipu-

lated facts do not preclude the Defendant or defense from

putting on any relevant, admissible evidence before this

Court in this trial (or at any post-trial hearing concerning

sentencing, if any), in his own defense on the merits or in

extenuation or mitigation of the offense (or punishment, if

convicted):

A. On 10 September 1976, Bernalillo County Sheriff

Department officers bearing a District Court search warrant

for the Defendant and his house at 800 Armijo Place, S.W.,

26

Albuquerque, Bernalillo County, New Mexico, arrived at

the Defendant’s said house. This and the following events

occurred in Bernalillo County, New Mexico on 10 September

1976.

B. After entering Defendant’s residence at 800 Armijo

Place, S.W., the officers executed the search warrant,

searching for heroin and other evidence described in the

Affidavit and Search Warrant. Officer Fred Torres searched

a brown chest of drawers in the southeast bedroom, ana in

the second drawer in a paper sack, Officer Fred Torres found

and seized several ounces of a brown powder substance (sub-

sequent laboratory analysis of this substance by a qualified,

trained expert chemist revealed the substance to be heroin).

The Defendant, LUPE GARCIA, who was present in his

above house during the entire search, advised the officers

that Rosalie Maes (a woman also present in the house) had

nothing to do with the heroin.

C. Sheriff Officer Mike Parra also searched in the same

bedroom of 800 Armijo Place, S.W., and found another pack-

age of suspected heroin in a men’s coat pocket, in a closet of

the same southeast bedroom. Within a minute or two of this

find, Officer Ken Northcutt found still another bag of sus-

pected heroin in another men’s coat in the closet. Laboratory

analyses on the powder contents of these two bags of sus-

pected heroin by the above said qualified, competent expert

chemist revealed that these two bags also contained heroin.

Again, the Defendant emphasized that Rosalie Maes had

nothing to do with these two bags of suspected heroin either.

D. Officers Northcutt and Parra returned to the same

southeast bedroom closet and continued their search, find-

ing $1095 in US Currency in another men’s coat; this money

was counted in front of the Defendant, who advised “it was

all there.” (This money will be turned over to Defendant

and/or his counsel, Jack Smith, at the conclusion of trial or

sentencing of the Defendant in this cause).

27

E. Enroute to the Sheriff Department for booking, the

Defendant reiterated that all the heroin was his, and he also

admitted using “about a gram per day” of heroin.

F. The Defendant admitted to the officers that he had

paid $1,400 per cunce in Mexico for the heroin. The officers

weighed the heroin they found and seized from the Defen-

dent’s residence and noted the following weights:

(1.) about 7 ounces of Heroin (found and seized by Fred

Torres in the second drawer of the dresser in De-

fendant’s southeast bedroom);

(2.) about 4 ounces of Heroin (found and seized by Mike

Parra from Defendant’s coat in the closet in the

same southeast bedroom);

(3.) about 5 ounces of Heroin (found and seized by Mike

Parra and Ken Northcutt in another of the Defen-

dant’s coats in the closet in the same southeast

bedroom).

This is a total of 16 ounces of heroin found and seized by

Sheriff officers during the search.

G. An ounce contains 28.35 grams. In the knowledge

and experience of Lt. Dan Lundy (over 6 years narcotics

experience including undercover heroin buying experience),

Sgt. Ray Mares (over 6 years narcotics experience, including

undercover heroin buying experience), Michael Parra (over

3 years narcotics experience, including undercover buys

and/or negotiations for heroin), and Kenneth Northcutt

(over 4 years of narcotics and heroin experience), heroin on

the street sells for $50 per gram. This would mean an ounce

_ of heroin is valued at about $1400 on the street in

1976...consistent with Defendant’s statement that he paid

$1,400 per ounce for the above heroin in Mexico. Thus, the

above 16 ounces of heroin would be worth a MINIMUM of

$22,4000—and could be worth much more if the heroin were

28

“cut” (diluted), increasing its weight and quantity, before

such street sales. None of the above officers have ever seen or

heard of this amount of heroin (16 ounces—about 453

grams) being strictly for personal use; even if the Defendant

were using a full gram of this heroin per day, it would

require over a year to use all this heroin...or longer if he

“cut” it before using it. There is no evidence that anyone

other than the Defendant, Lupe Garcia, possessed or had

anything to do with the above 16 ounces of heroin on 10

September 1976 at the time of its discovery and seizure by

Sheriff's Department officers, and these same 16 ounces of

heroin seized by these officers 10 September 1976 from De-

fendent’s residence at 800 Armijo Place, S.W., Bernalillo

County, New Mexico, was testified by a qualified, competent

expert chemist, who found and determined that such 16

ounces of substance was in fact heroin. Heroin is a narcotic

drug enumerated in Schedule I of the New Mexico Control-

led Substances Act (see Section 54-11-6, N.M.S.A., 1953

Comp., as amended).

H. With reference to the above admissions by the De-

fendant that Rosalie Maes “had nothing to do with it”, it is

Defendant’s belief and contention (and testimony, if he were

called to testify) that his statement, “she has nothing to do

with it” referred to some alleged amphetamines the officers

found in her purse, and that none of his admissions about

controlled substances pertained to Heroin, or that the heroin

was in fact his heroin. The officers, if called to testify, would

testify that it is their recollection and belief that Defendant

affirmed that Rosalie Maes had nothing to do with the al-

leged amphetamines, and also that he affirmed that she had

nothing to do with any of the alleged heroin the officers

found and seized. This dispute between the parties as to what

the Defendant said (or did not say), and what he was refer-

ring to (i.e., to amphetamines, to heroin, to neither, or to

both, etc.) is for the Court to resolve, and the parties are

stipulating only that if called, the Defendant and Rosalie

29

Maes would testify that Defendant was referring only to the

amphetamines allegedly found by the officers in Maes’

purse, and that if called to testify, the officers would testify

that the Defendant also stated that Rosalie Maes had noth-

ing to de with any of the heroin found or seized, either.

I. For purposes of appeal only (if Defendant is con-

victed), the Affidavit for Search Warrant is herein incorpo-

rated by reference and by reference made a part hereof

(copies of the affidavit is presently in the Court File #28040

itself, and another copy is in evidence in the District Court

Clerk’s office, Bernalillo County, and the original is part of

the District Court Clerk’s records, criminal division, Ber-

nalillo County Courthouse). The parties stipulate that the

affidavit was prepared with two separate typewriters: the

larger printing/typing from a Sheriff's office typewriter (the

words therein dictated by Mike Parra to a Sheriff Depart-

ment secretary), and the smaller typing (at the end of the

Affidavit) is made by the typewrite: of James F. Blackmer at

the D.A. office after the Sheriff Department secretary’s typ-

ing occurred, and that Mr. Blackmer personally typed those

words onto the Affidavit from the words and information

supplied to Mr. Blackmer by Michael Parra (affiant). There-

after, this Affidavit (with typing by the Sheriff Department

secretary, and the typing by James F. Blackmer) was taken

to District Judge Joseph C. Ryan by Michael Parra, who

swore to the Affidavit (both sections of typing thereon froin

the two typewriters from the two separate typists), and

Judge.Ryan administered the oath, signed the Affidavit, and

signed and issued the search warrant—all on 10 September

1976—which the officers then executed at Defendant’s

house the same day.

J. The parties also stipulate that, at a September 1977

re-hearing on Defendant’s motion to suppress evidence,

further evidence not considered by (or known to) the Court of

Appeals was presented: the uncontradicted evidence showed

30

that during the 30-day period 10 August-10 September 1976

period mentioned in the Search Warrant Affidavit (in which

period the informant alleged he/she had been inside Defen-

dant’s house and observed heroin therein or being possessed

and/or seld by Lupe Garcia...see the Search Warrant Af-

fidavit for exact wording), the Defendant was hospitalized

for a period of a week to 10 days; see testimony presented at

the September 1977 motions hearing, which also is incorpo-

rated herein by reference (for purposes of appeal only—if

Defendant is convicted in the present trial of this cause).

K. The parties also stipulate that all times and in all

proceedings before this Court in this cause (i.e., at all pre-

trial motions or motions hearings, discussions with the pro-

secutor or the Court, and now at trial of this Cause), the

State has invoked the provisions and privilege of Rule 510 of

the New Mexico Rules of Evidence (“Informer Privilege”

rule) and has refused and now continues to refuse to disclose

the identity or address of (or produce) any informant used by

the Sheriffs department to obtain information alleged in the

Search Warrant Affidavit, or the identity of any of the in-

formants referred to in the Search Warrant Affidavit. The

State hereby invokes the privilege of Rule 510 and continues

to refuse to disclose the identity, address, location, or other

information that would identify or disclose the whereabouts

or identity of the informants referred to in the Search War-

rant Affidavit or otherwise used by the Sheriff's Department

to gather information concerning the Defendant before or

while the Search Warrant Affidavit was being prepared. The

State also certifies that none of the informants mentioned or

referred to in the Search Warrant Affidavit was present at

Defendant’s house during the search warrant execution or

police presence there, and were not witnesses to any find of

heroin or other evidence therein by the Sheriff officers, and

were not witnesses to any statements or admissions made by

the Defendant to the Sheriff officers.

31

L. The parties stipulate that Defendant was hos-

pitalized on a 24-hour basis throughout the period 24 August

1976-1 September 1976, and was not at his 800 Armijo Place,

S.W. home during that period 24 August-1 September 1976.

JAMES F. BLACKMER

Assistant Attorney General

Counsel for Plaintiff

LUPE GARCIA

Defendant

JACK SMITH

Attorney at Law

Counsel for Defendant

SUBSCRIBED BEFORE ME IN OPEN COURT BY THE

ABOVE 3 PERSONS THIS 25th DAY OF APRIL 1978, and

FILED INOPEN COURT IMMEDIATELY THEREAFTER:

JAMES A. MALONEY

Judge

AFFIDAVIT FOR SEARCH WARRANT

AGENT MIKE PARRA, B.C.S.0. Narcotics Division, being

duly sworn, on his oath, states that:

he has reason to believe that on the following described

premises the person of LUPE GARCIA

THE RESIDENCE IS LOCATED AT 890 ARMIJO

PLACE SW. THE RESIDENCE IS WHITE STUCCO FLAT

ROOM STRUCTURE. THE FRONT DOOR FACES

NORTHEAST. TWO WINDOWS NORTHEAST. THERE IS

AN OPEN FRONT PORCH ALSO THERE IS SOME RED

BRICK SIDING ON THE FRONT PORCH. ONE DOOR

FACES WEST, AND ONE WINDOW FACES WEST, AND

32

THERE IS THREE FOOT CHAIN LINK FENCE IN THE

FRONT AND ON THE WEST SIDE OF THE RESIDENCE.

AND THERE IS ALSO A CHIMNEY ON THE WEST SIDE.

THERE IS AN OVAL DRIVEWAY IN FRONT OF THE

RESIDENCE. THE RESIDENCE IS LOCATED ON THE

CORNER OF ARMIJO PLACE AND ARMIJO ROAD.

ALSO, THE RESIDENCE SITS ON THE SOUTH SIDE OF

ARMIJO ROAD AND ON THE EAST SIDE OF ARMIJO

PLACE.

in the above described county and state there is now being

concealed certain property, namely:

HEROIN IN AN UNKNOWN QUANTITY. MISCEL-

LANEOUS PAPERS SUCH AS OLD UTILITY BILLS, OLD

MAGAZINE LABELS, AND ETC. SHOWING DEFEN-

DENTS NAME. ALSO, SYRINGES, COOKERS, RAZOR

BLADES, AND CUTTING DETERGENT, and other heroin

paraphernalia (“caps” of heroin or for wrapping heroin,

hypodermic needles, scales, etc.).

Which is designed or intended for use, or which has been

used, as a means of committing a criminal offense, would be

material evidence in a criminal prosecution, and that the

facts tending to establish the foregoing grounds for issuance

of a Search Warrant are as follows:

IN THE PAST 24 HOURS (SEPTEMBER 10, 1976) AF-

FIANT HAS RECEIVED INFORMATION FROM A CON-

FIDENTIAL INFORMANT THAT THE ABOVE SUBJECT

HAS BEEN TRAFFICKING IN LARGE AMOUNTS OF

HEROIN FROM THE ABOVE DESCRIBED RESIDENCE.

INFORMANT ADVISED AFFIANT THAT THE ABOVE

SUBJECT ONLY SELLS HEROIN TO PEOPLE HE PER-

SONALLY KNOWS. CONFIDENTIAL INFORMANT HAS

PERSONALLY PURCHASED FROM THE ABOVE SUB-

JECT THE LATEST BEING APPROXIMATELY ONE

33

MONTH AGO. CONFIDENTIAL INFORMANT ALSO

ADVISED AFFIANT THAT THE ABOVE SUBJECT IS A

MAJOR HEROIN DEALER THAT THE ABOVE SUBJECT

USUALLY HAS LARGE AMOUNTS OF HEROIN IN OR

AROUND THE DESCRIBED RESIDENCE BECAUSE OF

THE FACT THAT HE (LUPE GARCIA) DISTRIBUTES

SOME OF IT TO OTHER INDIVIDUALS UNKNOWN TO

INFORMANT AT THIS TIME. THESE OTHER INDI-

VIDUALS ARE TRAFFICKING THE HEROIN FOR LUPE

GARCIA. ALSO, WITHIN THE PAST MONTH, AFFIANT

HAS ALSO RECEIVED INFORMATION FROM AT

LEAST TWO OTHER CONFIDENTIAL SOURCES AND

THEY ALSO ADVISED AFFIANTS THAT LUPE GARCIA

IS IN FACT A MAJOR HEROIN DEALER IN THE AL-

BUQUERQUE AREA. THESE OTHER TWO CONFIDEN-

TIAL SOURCES HAVE ALSO ADVISED AFFIANT THAT

LUPE GARCIA HAS HIS OWN PERSONAL PUSHERS.

THESE CONFIDENTIAL SOURCES GAVE AFFIANT

THIS INFORMATION AND IN FACT ARE HEROIN AD-

DICTS AND HAVE BEEN SO MOST OF THEIR LIVES.

THEREFORE, THESE CONFIDENTIAL SOURCES

KNOW WHAT HEROIN LOOKS LIKE HOW IT IS SOLD

AND HOW IT IS PREPARED FOR INJECTION. THESE

CONFIDENTIAL INFORMANTS HAVE PROVEN

THEMSELVES TO AFFIANT WITH CORROBORATION

INFORMATION WHICH HAS RESULTED IN THE AR-

REST OF AT LEAST FOUR PEOPLE TRAFFICKING IN

LARGE AMOUNTS OF HEROIN IN THE ALBUQUER-

QUE AREA. ALSO, THESE CONFIDENTIAL SOURCES

HAVE BEEN ADVISED BY AFFIANT THAT ANY MIS-

LEADING INFORMATION COULD RESULT IN ARREST

AND IN CHARGES FOR FALSEFYING INFORMATION.

THEREFORE, AFFIANT REQUEST THAT A SEARCH

WARRANT BE SET-FORTH FOR THE RESIDENCE AND

FOR THE ABOVE SUBJECT IN ILLEGAL TRAFFICK-

ING OF NARCOTICS.

Informant #1 has given BCSO narcotics officers information

34

that has resulted in seizures of heroin on at least two occa-

sions and arrests of several persons possessing and traffick-

ing it. Although this informant #1’s latest observation of

heroin sales by LUPE GARCIA at above-described residence

was during the period 10 August 1976 to 10 September 1976,

nevertheless, Informant #1 has been at Lupe Garcia’s

above-described premise on numerous other prior occasions,

and during these prior occasions, Lupe Garcia has had he-

roin at above-described premises for sale, and informant has

seen heroin there on numerous occasions. According to In-

formant #1 (and 2 and 3), Lupe Garcia has an ongoing heroin

trafficking business, from above-described house, and there-

fore, he haas to keep a large quantity of heroin in stock at all

times to supply his subordinate pushers and other heroin

customers, keeping them coming back to him, and making

money from them. Furthermore, he has not been arrested or

searched in the past month or tv - . to affiant’s knowledge),

and thus he has no incentive to quit dealing heroin cease or

diminish acquiring and selling heroin etc. Additionally, all 3

informants independently of one another and based on per-

sonal observations (or hearing admissions by Garcia) state

that LUPE GARCIA uses heroin at his above-described

house—and he will need heroin daily to supply his habit, as

well as have heroin paraphernalia to inject such heroin after

“cooking” it.

MICHAEL PARRA

B.C.S.O. Narcotics Agent

SUBSCRIBED AND SWORN TO BEFORE ME THIS 10th

DAY OF SEPTEMBER 1976.

Reviewed and approved 10 September 1976 at 12:13 p.m.

(with above additions and corrections)

JAMES F. BLACKMER JOSEPH RYAN

District Judge

PREG ORT Tt