# Petition — Garcia v. New Mexico

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 439 U.S. 1072

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1966%3A1. Public record. Not legal advice.