Petition for Writ of Certiorari — Lucero v. New Mexico

93 - 9 "9 i mane tot 6

1; DEC 3 j993 |

i

NO.

IN THE

Supreme Court of the Gnited States

OCTOBER TERM 1993

CHRIS LUCERO,

Petitioner,

Vs.

STATE OF NEW MEXICO

Respondent.

Petition For A Writ Of Certiorari

To The New Mexico Supreme Couri

PETITION FOR A WRIT OF CERTIORARI

Ramon I. Garcia

106 North Washington

Roswell, NM 88201

(505) 624-0850

Attorney for Petitioner

SERVICE TO:

New Mexico Attorney General

PO Drawer 1508

Santa Fe, NM 87504-1508

QUESTIONS PRESENTED FOR REVIEW

WHETHER PETITIONER’S CONVICTION AND

SENTENCE VIOLATE HIS CONSTITUTIONAL RIGHT

TO BE FREE FROM UNREASONABLE SEARCHES AND

SEIZURES BECAUSE THE AFFIDAVIT IN SUPPORT

OF THE SEARCH WARRANT DID NOT SUPPLY

SUFFICIENT FACTS FROM WHICH THE MAGISTRATE

COURT COULD FIND PROBABLE CAUSE AND THE

INFORMATION CONTAINED IN THE AFFIDAVIT WAS

STALE.

DECLARATION OF COUNSEL

Pursuant to Supreme Court Rule 29.2, I ,

Ramon I. Garcia, declare under penalty of

perjury that I am a member of the bar of

this Court and counsel for petitioner,

Chris Lucero, and that I personally mailed

the Petition for Writ of Certiorari to this

Court by depositing the original and nine

copies in an envelope addressed to the

Clerk of this Court, sealed the envelope,

and deposited it in the United States

mailbox at the U.S. Post Office on North

Pennsylvania, Roswell, New Mexico at ap-

proximately 2:00 P.M., on the_1lst day

of December _, 1993.

Respectfully Submitted,

Ramon I. Garcia

Attorney for Petitioner

106 North Washington

Roswell, NM 88201

(505) 624-0850

ii

ba AEE Or AC ME AEN: SA BIS ee OEE ee ee Oe ee. ty Ra Op POPLAR Pa 2 Se ee

Page

QUESTIONS PRESENTED FOR REVIEW......... 1

DECLARATION OF COUNSEL.......-eeeeeeees ii

TABLE OF CONTENTS .....ccccccsccccceves iii

TABLE OF AUTHORITIES ......-ceceesecceess Vv

OPINION BELOW ... cc ccccccsccvevcceveveves 1

JURISDICTION cc cesiccccvscccvecccseccveveves 2

CONSTITUTIONAL PROVISION........-..+-206- 2

STATEMENT OF CASE ...-ccccccovcvcvcevvvces 3

ARGUMENT FOR ALLOWANCE OF THE WRIT....7

PETITIONER’ S CONVICTION VIOLATES THE

FOURTH AMENDMENT’S REQUIRMENT THAT

WARRANTS NOT ISSUE BUT UPON PROBABLE

CAUSE, SUPPORTED BY OATH OR AFFIRMATION

WHERE THE INFORMATION CONTAINED IN

THE AFFIDAVIT FOR SEARCH WARRANT WAS

INSUFFICIENT TO ESTABLISH PROBABLE

CAUSE SINCE THE INFORMATION DID NOT

ESTABLISH THE INFORMANT’ S CREDIBILITY

OR THAT THE INFORMATION THAT WAS

PROVIDED WAS RELIABLE. ........... 7

iii

POINT If

THE INFORMATION CONTAINED IN THE

~ AFFIDAVIT WAS STALE WHERE THE IN-

FORMANT HAD SEEN A SMALL AMOUNT OF

MARIJUANA AT LUCERO’ S RESIDENCE SEVENTY -

TWO HOURS BEFORE THE SEARCH WARRANT

WAS ZESUSD cc cscccssovsceteseceecss 27

COR EAE ce ccc rece es eresesveseeeensvbarn 36

APPENDIX A: ORDER DENYING PETITION FOR

WRIT OF CERTIORARI

APPENDIX B: DECISION OF THE NEW MEXICO

COURT OF APPEALS

APPENDIX C: NM DISTRICT COURT’S ORDER

DENYING MOTION TO SUPPRESS

iv

Cases Page

Aguilar vy. Texas,378 U.S. 108,

845 §.Ct. 1509, 12 LEd 2d

723 (1964) S,.13,: 44°45

Commonwealth v. Fazer,

455 p320, 312 A2d 398 (1973) 31

Illinois v. Gates, 462 U.S. 213,

103° 8.¢t. #2317, 76. LEG 2¢

S27 (1983) 25

McCray v. Illinois, 386 US 300,

87 S.Ct. 1056, 18 LEd

2d 62 (1967) 17

Rutledge v. United States,

392 A2d i062 (D.C. App. 1978) 20

Sgro _ v. United States,

287 US 206, 210 (1932) 28, 30

weet y :

393° U.S,, 410,;,,89 8.Ct. 584,

21 LEd 2d 637 (1969) Sy 13, £4769

State v. Anderson, 585 P2d 423,

424 (Or. App. 1978) 34

State y, Cordova, 109 NM 211, 748 P2d

36 (S968) Be 92st 33; R44, 33 2

State v. Donaldson, 100 NM i1ii,

666 P2d 1258 (Ct. App. 1983) 12

State v. Garcia, 90 NM 577,

566 P2d 426 19

State vy, Garcia, 90NM 577, 578, —

566 P2d 426, (Ct. App. 1977) 28

State v. Gutierrez, 91 NM 542, 577

P2d 440 (Ct. App. 1978) 17, 18

State v. Kittredge, 36 Or. App. 603,

585 P2d 423 (Or. App. 1978) 33

State v, Perea, 85 NM 505, 513 Pad

1287 (Ct. App. 1973) 20

State v. Powell, 98 NM 569, 632 P2d

1207 (Ct. App. 1981) 31

State vy. Scheer, 49 Or. App. 937,

620 P2a973, 974 (1980) 34

State v. Therrien, 110 NM 261,

794 P2a 735 at P.263 16. 49

State v. Therrien, supra at P.264 22

State v. Wisdom, 110 NM 772,

800 P2d 206 (Ct. App. 1990) 12, 21

vi

QTHER FEDERAL AUTHORITIES ;

28 U.S.C. 1257(A)

28 U.S.C. 2101 (c)

U.S. Constitution Amendment IV

STATE STATUTES & RULES

Rule 5-211 (E)

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13

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1993

CHRIS LUCERO,

ar

Vs.

STATE OF NEW MEXICO,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE NEW MEXICO SUPREME COURT

Petitioner, Chris Lucero, respectfully

requests that a Writ of Certiorari be

issued to review the judgment of New Mexico

Supreme Court.

OPINION BELOW

The order denying petition for Writ of

Certiorari to the New Mexico Court of

Appeals is attached as Appendix A. The

decision of the New Mexico Court of Appeals

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officer Louis Mallion of the Roswell

Police Department. The affidavit for the

search warrant was attached to the search

warrant as exhibit “A” and is fully set

out below.

1. Affiant 1s Lou Malliona full-time

salaried Roswell Police Officer

with thirteen years of law enforcement

experience.

Affiant learned from Confidential

Informant who has provided reliable

information in the past six months

on at least two occasions that has

proven to be true. The Informant

has made controlled purchases on

illegal drugs in the past six (6)

months. The Informant has observed

a small amount of marijuana at 510

South Cypress Roswell, Chaves County,

New Mexico within the past seventy-

two hours.

3. The Informant knows what marijuana

is from the past. The Informant

has been involved in the sale of

1llegal drugs for at least six

years. The informant has packaged

and has sold marijuana inthe past.

4. Affiant learned from New Mexico

Probation and Parole that Chris

Lucero completed his parole in

January 1992 for possession of

marijuana.

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motion to suppress finding that the elapsed

time of 72 hours did not make the information

stale and there was sufficient information

in the affidavit regarding the reliability

of the informant.

On September 10, 1992, the jury found

Lucero guilty of possession of marijuana

with intent to distribute. On November 9,

1992, the district court filed a judgment,

sentence, and commitment on the charge of

possession with intent to distribute and

on the charge of being a habitual offender.

Lucero appealed his conviction to the New

Mexico Court Appeals and it was affirmed

by memorandum opinion on August 11, 1993,

based on the issues raised in Lucero’s

motion to suppress.

The New Mexico Supreme Court denied

Lucero’s petition for certiorari on Septemoer

44, i993.

7

ARGUMENT FOR ALLOWANCE OF THE WRIT

PETITIONER’S CONVICTION VIOLATES THE

FOURTH AMENDMENT’S REQUIRMENT THAT

WARRANTS NOT ISSUE BUT UPON PROBABLE

CAUSE, SUPPORTED BY OATH OR AFFIRMATION

WHERE THE INFORMATION CONTAINED IN

THE AFFIDAVIT FOR SEARCH WARRANT WAS

INSUFFICIENT TO ESTABLISH PROBABLE

CAUSE SINCE THE INFORMATION DID NOT

ESTABLISH THE INFORMANT’ S CREDIBILITY

OR THAT THE INFORMATION THAT WAS

PROVIDED WAS RELIABLE.

Lucero’s conviction of possession of

marijuana with intent to distribute violates

the warrant requirement of the Fourth

Amendment which protects persons against

unreasonable searches and seizures. In

analyzing the information contained inthe

affidavit, which is set out in full in

petitioner’s statement of the case, the

affidavit does not give a neutral magistrate

sufficient information to believe that

evidence of a crime existed on the premises

at the time the warrant was’ issued.

Further, the affidavit fails to provide

Substantial evidence that the source of

8

the information, a confidential informant

is credible and reliable.

In analyzing the information contained

in the affidavit, we submit to this Court

that the affidavit supporting the search

warrant does not give a neutral magistrate

sufficient information to believe that

evidence of a crime existed on the premises

at the time the warrant was. issued.

Further, the affidz:vit fails to provide

substantial evidenc. that the source of

the information, a confidential informant

is credible and reliable.

In paragraph two of the affidavit for

search warrant, Mallion states that he

learned froma confidential informant that

the informant had seen a small amount of

marijuana at 510 South Cypress, Roswell,

Chaves County, New Mexico within the past

seventy two (72) hours. Lucero was living

at 510 South Cypress, Roswell, New Mexico.

The affiant does not provide any information

ha

+

10

In paragraph three (3) of the affidavit,

affiant states that the confidential informant

knows what marijuana is because the informant

was a drug trafficker for at least six (6)

years. In paragraph four (4) of the

affidavit, affiant states that Lucero

completed his “parole” in January, 1992

for possession cf marijuana. Affiant fails

to tell the magistrate that Lucero was on

“probation” for misdemeanor possession of

marijuana. There is no evidence as to when

the possession violation occurred or whether

it took place in Lucero’s residence.

In paragraph five (5) of the affidavit,

affiant states that he learned from Fred

Hill of the Roswell Police Department that

Chris Lucero is known to him as a drug

dealer and that Hill has arrested him in

the past for possession of illegal drugs.

There is no information contained in the

affidavit that Hill has arrested Lucero

for dealing in drugs or that Hill personally

eS ke

11

observed Lucero dealing in drugs. The

affiant does not provide any information

as to how Hill knows Lucero as a drug

dealer. If he knows fromother sources that

Lucero is a drug dealer, those sources have

not been disclosed and how those sources

know Lucero is a drug dealer have also not

been disclosed in the affidavit. The

affiant also fails to state when Hill

arrested Lucero for possession and whether

the possession occurred at 510 South

Cypress.

Once the search warrant was issued,

the police executed it and seized thirteen

(13) ounces of marijuana from Lucero’s

residence. Was the search and seizure

proper?

The New Mexico Constitution provides

that “no warrant... shall issue without a

written showing of probable cause supported

by oath or affirmation.” New Mexico Constitution,

Article II, Section 10. To establish

probable cause, the applicant for the

44

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the affidavit establishes either: 1) That

the informant was a truthful person, 2)

that the informant had particular motives

to be truthful about his specific allegations,

or, 3) that the allegations of criminality

had been sufficiently corroborated. State

v. Therrien, 110 NM 261, 794 P2d 735 at

P.263. We submit to this Court that the

affidavit in this case does not establish

that the informant is a truthful person.

The affidavit states that the informant

has provided reliable information in the

last six (€) months that has proven to be

true. There is no indication on the face

of the affidavit that the information

resulted in any arrest, conviction, or

seizures of contraband as a result of the

information. Although the information may

have been true, one does not know what

information was involved and one can

reasonably infer that it was not reliable

or credible enough to form the basis for

an arrest or seizure.

17

It is apparent that the affiant is

attempting to establish the informant’s

credibility by past performance. However,

the assertion in the affidavit that the

informant has provided information in the

past that was found to be true amounts to

no more than the affiant’s mere assertion

that he knew the informant to be reliable.

More is required. In McCray v. Illinois 386

US 300, 87 S.Ct. 1056, 18 LEd 2d 62 (1967)

the United States Supreme Court held that

a showing by the affiant that the informant

had provided information or past occasions

which led to arrests and convictions was

sufficient to show that the informant was

credible. see also lw. LaFave, Search and

Seizure Section 3.3 (b) at P.508-509.

Although Cordeva, supra seems to say that

it is not necessary for affidavit to state

that informant’s past tips resulted in

convictions, a reading of State vy. Gutierrez

91 NM 542, 577 P2d 440 (Ct. App. 1978) does

not support such a holding.

18

In Gutierrez, supra, the affidavit

stated in part: “This informant has given

reliable information in the past 18 months

which was (sic) resulted in over 20 arrests

and 5 felonies (sic) convictions together

with the seizure of various controlled

substances and contraband.” One of the

issues presented in Gutierrez is whether

the magistrate needed to make an independent

determination of whether the informant was

reliable. Id. at page 545. This Court held

in Gutierrez that there is no requirement

that the magistrate make an independent

investigation to verify the facts contained

in the affidavit if probable cause was

established by the affidavit need not list

in detail the convictions or arrests.

One need only compare the information

contained in the present affidavit with

the one set out in Gutierrez. The affidavit

in this case contains absolutely no information

on its face that would lead a magistrate

19

to reasonably believe the informant reliable

since it contains no information that the

past tips have resulted in convictions,

arrests or seizures of contraband. The

information that the informant had provided

information in the past was found to be

true amounts to no more than the affiant’s

mere assertion that he knew the informant

to be reliable. Such an assertion is

insufficient to meet the Cordova test for

establishing the veracity of the informant.

State v. Therrien supra at P.263, see also

State v. Garcia 90 NM 577, 566 P2d 426.

The fact that the informant made controlled

purchases of illegal drugs inthe last six

(6) months or knows what marijuana is, as

stated in the affidavit, has no bearing on

whether the informant is a person likely

to tell the truth.

The affidavit fails to set forth any

particular motives that the informant may

have in telling the truth in this case.

20

Rather, one can reasonably infer from the

facts set forth in the affidavit, that the

informant is a paid informant or a person

working off charges to keep himself out of

jail and thus has incentive to provide

false information. “The expectation of

reward for services is an ambiguous variable

which very well could furnish reason to be

honest and accurate - in the hope of being

utilized again - or conversely reason to

distort or fabricate, in order to earn at

least one payment.” Rutledge vy. United

States, 392 F2d 1062 (D.C. App. 1978).

Likewise, there is no particular reason

that the specific allegations by the

informant were true, due to the fact that

the allegations were not against the

informant’s penal interest. In State vy.

Perea 85 NM 505, 513 P2d 1287 (Ct. App.

1973), this Court held that a statement

against penal interest made by an informant

is credible.

21

Even if the Cordova test is not met,

it is not necessarily fatal if the affidavit

sets forth facts showing that the informant’s

statements were corroborated by independent

law enforcement investigation. State y,

Wisdom, 110 NM 772, 777, 802 P2d 206. In

this case, there was no attempt made to

corroborate the informant’s allegation

that marijuana was in Lucero’s residence.

The information in paragraphs four (4) and

(5) reciting Lucero’s alleged prior history

of drug possession or drug dealing do not

corroborate the informant ’s present information.

If the intent of the affiant was to

bolster the reliability of the information

given by the informant by alleging that

Lucero was known as a drug dealer, there

is nothing on the face of the affidavit

to show how Fred Hill knew of such

information. This information is very

questionable because Fred Hill watched

Lucero’s residence for over six (6) months

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22

specifically to see if Lucero was dealing

in drugs or was in possession of drugs.

As Fred Hill admitted at Lucero’s trial,

he was never able to get sufficient

evidence to get a search warrant issued.

One can infer that Fred Hill did not have

enough information to go to the magistrate

and recite enough facts to establish

probable cause for the issuance of a search

warrant.

Failure to establish either an informant’s

basis of knowledge or veracity either

directly or through independent corroboration,

renders the search and seizure pursuant to

the warrant unlawful andthe fruits of such

a search are inadmissable. State v., Therrien,

Supra at P.264.

New Mexico Courts still adhere to the

two prong test developed in Aguilar v.

Texas, 378 U.S. 108, 645 S.Ct. 1509, 12

LEG 2d 723 (1964) and Spinelli v. United

States, 393 U.S. 410, 89 S.Ct. 584, 21 LEd

2d 637 (1969).

‘23

Since New Mexico Courts still use the

two prong test developed in Aguilar v.

Texas, supra and Spinelli v. United States,

supra, the affidavit in question in Lucero’s

case does not meet that standard. The

recital in the affidavit that confidential

information has provided reliable information

in the past six months on at least two

occasions that has proven to be true lacks

any factual indication of how reliable the

informer is. The magistrate judge relied

on the arresting officer’s facutal determination

of the informant’s reliablity and not upon

his independent judicial determination.

This violates the requirement that Aguilar

makes for requiring that the affidavit

show some of the underlying circumstances

from which the officer concludes that the

informant was credible or the information

reliable.

In the Lucero case, there are no

underlying facts to support that informant

24

is credible or that the informant reliable.

There is no showing that the information

provided in the past resulted in. any

arrests, convictions, or discovery of

criminal activity. The fact that the

informant only provided reliable information

on two occasions infers that the informant

may have provided false information on

ether occasions. Because most judicial

officers rely on the arresting officer’s

information, there is no inquiry by the

magistrate to corroborate the information

or attempt to make an independent judicial

determination. Inquiry becomes more important

in this case since the warrant was not

issued until 72 hours after the police

received the information fromthe informant.

It is important that if the New Mexico

Courts are to follow Spinelli and Aguilar,

that more than vague statements of reliability

be given the police officers. If the courts

accept such statements without the underlying

™

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25

support required by the two prong test, it

may result in officers simply making

superficial arguments of reliability without

proper support and in some cases, stretching

the truth to try and have the affidavit

pass muster.

Further, by not requiring more than

vague statements of reliability, the standard

for judging the affidavit may be inadvertently

shifted to the totality of the circumstances

standards expressed by this court in

Illinois v. Gates, 462 U.S. 213, 103 S.Ct.

2317, 76 LEd 2d S27 (1983). This court

abandoned the “two- pronged test” established

in Aguilar and Spinelli and replaced it

with the totality of the circumstances

analysis. This court held in Gates that the

task of the issuing magistrate is simply

to make a practical common-sense decision

whether, given all the circumstances set

forth in the affidavit before him, including

the “veracity” and “basis of knowledge” of

26

persons supplying hearsay information,

there is a fair probability that contraband

or evidence of crime will be found in a

particular place. A careful review of the

affidavit in Lucero’s case shows that

there are no underlying facts to support

the vague assertion that the informant is

reliable because he provided on two occasions

information that was true.

There is no indication as to the type

of information that was supplied. Whether

the information led to arrests or convictions

or that the information led to any seizures

of contraband. There is no information

that the informant was attempting to set

up a buy of narcotics. There are other

pieces of information which are uncorroborated

about the defendant. If you take all the

pieces of information, under the totality

of the circumstances standard, the affidavit

might provide probable cause. In fact, the

New Mexico Attorney General urged the New

——EoEOoOEOoooEoOoEeE———— ee eee

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27

Mexico Court of Appeals to use a common

sense approach to review the affidavit.

That is, if the magistrate uses common

sense, all of the information would lead

him to find that probable cause has been

established. However, since New Mexico

remains committed to the two-prong test of

Aguilar and Spinelli, this affidavit does

not meet those standards.

POINT IT

THE INFORMATION CONTAINED IN THE

AFFIDAVIT WAS STALE WHERE THE INFORMANT

HAD SEEN A SMALL AMOUNT OF MARIJUANA

AT LUCERO’S RESIDENCE SEVENTY-TWO

HOURS BEFORE THE SEARCH

WARRANT WAS ISSUED

Moreover, even if this Court finds

that the basis of the informant’s knowledge

and veracity have been sufficiently established,

the affidavit is still deficient. The

information set forth in the affidavit is

stale and does not give rise to probable

nee ee eke oe

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Pi ey ne Vp ae I oe el

28

cause to believe that evidence of a crime

existed on the premises at the time the

warrant was issued. The information contained

in the affidavit “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. Whether the

proof meets this test must be determined

by the circumstances of each case.” Sgro

v. United States, 287 US 206, 210 (1932).

Whether the information provided in

the affidavit is closely enough related to

the time of the issuance of the warrant

depends on the nature of the crime alleged.

In State v. Garcia, 90NM 577, 578, 566 P2d

426, (Ct. App. 1977), a search warrant was

issued one month after some informants saw

heroin in defendant’s residence. Defendant

argued that a one-month delay made the

information stale and did not provide

probable cause for the issuance of the

warrant. In Garcia, supra at P.578, this

Court held: “The significance of this time

O_O ee

29

factor depends on whether there was an

isolated transaction or a continuing series

of events.” Where the crime is of an

ongoing nature, the passage of time is less

Significant than when no such showing is

made.

In the affiduvit submitted in this

case, the allegation of criminal activity

demonstrates only an isolated instance of

alleged criminal conduct. At the most, the

alleged criminal activity is of possession.

The affiant’s statement in paragraph three

(3) that Lucero was previously on parole

for possession of marijuana is not indicative

of current, marijuana possession. The

information in paragraph four (4) states

that Detective Hill knows Lucero to be a

drug dealer and has arrested Lucero in the

past for drug possession. The information

that Lucero is known to Hill to be a drug

dealer as presented in the affidavit is

unreliable and must be struck pursuant to

State vy. Cordova supra at P.211.

30

We submit £2 this court that tne

decision made by the New Mexico Courts in

this case does not square with the Sgro

decision. One of the factors most frequently

relied upon by appellate courts is the

character of the criminal activity under

investigation. In Lucero’s case, the informant

reported only one isolated transaction of

marijuana possession. The informant reported

no sales or other activity involving drugs

at Lucero’s residence. The New Mexico

Courts held that Lucero was involved in

continuing criminal activity based on his

status rather than his activities. That

is, without any supporting evidence, the

New Mexico Courts held that an allegation

of being a drug dealer and being on

probation for possession of marijuana is

sufficient to show continuing criminal

activity. There was no evidence, however,

as to when Lucero was a drug dealer nor

when he was arrested for possession of

mari*uana.

ee er lie

ie ee ee en en

31

Further, as was held in Commonwealth

VY. Fazer, 455 p320, 312 A2d 398 (1973),

any inference of continuity may be overcome

by the fact that later surveillance turned

up nothing suspicious. In Lucero’s case,

Fred Hill testified that his surveillance

that lasted almost six months did not

reveal any criminal activity at Lucero’s

residence thereby strongly indicating that

this was an isolated transaction.

The above information, since the

affidavit is completely silent as to the

history of drug activity on lLucero’s

residence, does not establisha “continuing

series of events” on the premises to

overcome a claim of staleness. State y,

Powell 98 NM 569, 632 P2d 1207 (Ct. App.

1981). In fact, direct testimony from Hill

at the trial demonstrates the exact opposite.

Hill testified that he had personally kept

Lucero’s residence under surveillance for

Over six (6) months and that he watched

32

the house at least two times per week.

During the entire time that he observed

Lucero’s residence, he was unable to

gather sufficient information to get a

search warrant for Lucero’s residence. One

can safely assume that Hill did not witness

any drug possession or drug dealing at

Lucero’s residence that provided Hill with

probable cause to arrest Lucero. One can

also safely assume that Hill was unable to

gather sufficient information to even get

a search warrant for Lucero’s residence to

search for contraband. The preceding information

bolsters Lucero’s contention that the

information contained in the affidavit

concerning Lucero’s drug dealing or drug

possession is highly questionable as to

its veracity and certainly establishes

that there was no on going criminal

activity.

Otner relevant factors this court

should consider in claims of staleness

A neti Caxari

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33

include: 1) the amount of contraband said

to be on the premises; 2)whether the person

possessing the drugs is a resident of the

premises and 3)prior history of suspects

State v. Kittredge 36 Or. App. 603, 585

P2d 423 (Or. App. 1978). In Kiittredge, the

affidavit stated in part that aconfidential,

reliable informant was on the defendant’s

premises within the past 96 hours and while

there, he observed marijuana. The informant

did not state what amount he had seen. The

issue to be resolved by the Oregon Appellate

Court was whether the information provided

in the affidavit was stale because of the

passage of 96 hours. The Court in Kittredge

carefully analyzed the facts in that case

and held that the information provided by

the informant was stale.

In this case, the informant states

only that he observed “a small amount” of

marijuana within the past 72 hours. There

is no information as to what is meant by

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to establish probable cause rendering the

search unlawful. Likewise here, the affidavit

fails to state in whose possession the

marijuana was seen, and why that person and

the marijuana would still be on Lucero’s

residence seventy-two (72) hours later.

Finally, this court should consider

the prior history of criminal activity

involved in Lucero’s premises. There is no

question that the affidavit fails to

identify the person who was in possession

of the marijuana or whether there were

other persons in the residence at the time

that the informant saw the small amount of

marijuana.

Because the affidavit fails to provide

any of the above information, this court

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should find that the information contained

in the affidavit was stale and did not give

rise to probable cause for the issuance of

the warrant.

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