# Petition for Writ of Certiorari — Lucero v. New Mexico

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1115

## Text

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)

vil

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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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16

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

Py
fee
A
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ee
* vy il
= —s*

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

™

TRS eS VST MeHg eoa Oe RP aed PT Wage ee, aE OORT SNE Ne Bee Ene
=A g fn ,

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

a

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

eA ust

Dn a, ealhaeen th Aiea ae

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

A ire oe Ut.

Ee

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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wk

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.

\ WO

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1657%3A1. Public record. Not legal advice.