Appendix — Lucero v. New Mexico

Supreme Court brief1994

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THE STATE OF

WEDNESDAY,

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STATE

This matter

certiorari

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NOW,

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FURTHER

in Cause

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Appeals.

ATTEST:

KATHLEEN

CLERK OF

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Giyzy IV

the Court upon petiti

THE SUPREME COURT OF

NEW MEXICO

SEPTEMBER 22, 19

OF NEW MEXICO,

Plaintiff-Respondent,

coming on for consideration

for writ of

, and the Court having considered

ion, and being sufficiently

THEREFORE,

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writ of

ORDERED

on for

1 is denied.

ORDERED that the Recor

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SUPREME COU

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IN THE COURT OF APPEALS OF

THE STATE OF NEW MEXICO

STATE OF NEW MEXICO

Plaintiff-Appellee,

CHRIS LUCERO,

Defendant-Appellant.

APPEAL FROM

THE DISTRICT COURT OF CHAVES COUNTY

WILLIAM J. SCHNEDAR, District Judge

TOM UDALL, Attorney General

PATRICIA A. GANDERT,

Assistant Attorney General

Santa Fe, New Mexico

Attorneys for Plaintiff-Appellee

RAMON I. GARCIA

Roswell, New Mexico

Attorney for Defendant-Appellant

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MEMORANDUM OPINION

PICKARD, Judge.

Defendant appeals his conviction

of possession of fourteen ounces of

marijuana with intent to distribute

pursuant to NMSA 1978, Section 30-31-

22 (Cum. Supp. 1991). Defendant raises

three issues on appeal: (1) whether

the trial court erred in ¢enying

Defendant’s motion to suppress the

evidence on the basis that the affidavit

was facially invalid for failure to

establish probable cause; (2) whether

the information contained in the

affidavit is stale because the affidavit

states that a small amount of marijuana

was seen at Defendant’s residence

seventy-two hours before the warrant

was issued; and (3) whether failure

to raise the issue of the “no knock

rule” constitutes fundamental error.

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cause exists. Jd, at 213, 784 P.2d at

32. The search warrant affidavit must

therefore set forth a substantial

basis for both believing the informant

and concluding that the informant

gathered the information of illegal

activity ina reliable fashion. Jd,:;

gee SCRA 1986, S-211(E) (Repl. 1992).

Regarding the first prong of the

test, on its face the affidavit sets

forth the following bases for a

determination that the informant can

be believed: (1) on two prior occasions,

information provided by the informant

proved to be reliable and truthful;

and (2) the informant was sufficiently

reliable to have been entrusted by the

police to make controlled buys of

illegal drugs within six months of the

affidavit. Therefore, the affidavit

in this case is distinguishable from

the affidavit in State v. Therrien,

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110 N.M. 261, 794 P.2d 735 (Ct. App.

1990), Qverruled on other grounds by

State v,. Barker, 114 N.M. 589, 584,

844 P.2d 839, 844 (Ct. App. 1992),

relied on by Defendant. In Therrien,

the mere statement without any

Substantiating details by a police

officer that the officer personally

knew that the informant was reliable

was insufficient to satisfy the veracity

prong. IG, Ge 203, 138 Pecan Oe Tet.

As in Cordova, the informant in the

instant case satisfied the veracity

prong because the informant furnished

information to the affiant that had

proven to be true and correct on past

occasions. See Cordova, 109 N.M. at

aié@, 66 P.24G4 @¢ 31. In oreer, ¢6

establish a record of veracity for the

purpose of probable cause, it is not

necessary, as Defendant suggests, for

the informant’s past tips to have led

1 to conviction. State v. Gutierrez, 91

211 N.M. $42, 547, 577 P.24 440, 445 (Ct.

App. 1978). On its face, there is

5 sufficient information inthe affidavit

. to support a determination that the

) confidential informant can be believed.

4 Regarding the second prong of the

" test, the affidavit contains the

cs following information to support a

13 conclusion that the informant’s basis |

+ of knowledge’is sufficient: (1) extensive,

a long-term dealings with marijuana

17 that demonstrate the informant’s |

a8 familiarity with marijuana and his |

rf ability to identify it when seen; and |

21 (2) the informant ‘'s personal observation |

#¢ of a small amount of marijuana at |

a Defendant’s residence. Personal |

25 observation is sufficient to satisfy |

#8 the basis of knowledge prong. State

i Vv. Ramirez, 95 N.M. 202, 204, 619 P.2d |

1246, 1248 (Ct. App. 1980); see state

v. Cervantes, 92 N.M. 643, 647, 593

P.2d 478, 482 ices . aD.2.. . Cate.

denied, 92 N.M. 621, 593 P.2d 62

(1979). On its face, there is sufficient

information inthe affidavit to support

a determination that the informant

had a sufficient basis of knowledge.

STALENESS

Defendant also asserts that the

information inthe affidavit regarding

the presence of a small amount of

marijuana at Defendant’s residence

seventy-two hours prior to the issuance

of the warrant is stale and fails to

establish probable cause that marijuana

would still be found at Defendant’s

residence seventy-two hours later.

Defendant contends that the information

contained in the affidavit is

insufficiently related to the time

of the issuance of the warrant because

the nature of the criminal activity

is merely an isolated transaction.

See State v. Garcia, 90 N.M. 577, 578,

566 P.2€ 426; 427 (Cc... App.), cert.

denied, 90 N.M. 636, 567 P.2d 485

(1977). Defendant further contends

that other relevant factors such as

(1) the smallness of the amount of

marijuana observed by the informant,

(2) a lack of information in the

affidavit to indicate whether the

person in possession of drugs is a

resident of the premises, and (3) a

lack of information regarding the

prior history of the suspects combine

to render the information in the

affidavit stale. See State v. Scheer,

620 P.2d 973, 974-75 (or. Ct. App.

1980); State v, Kittredge, 585 P.2d

423, 424-25 (or. Ct. App. 1978).

Probable cause to authorize the

issuance of a search warrant requires

a factual showing that “an accused,

Co wo monn oO Fe BY ND

—)

at the time of the application for

warrant, is in possession of illegal

property or the fruits of a crime or

that evidence relating to the commission

of a crime exists on the premises

sought to be searched.” State yv.,

RDenaldson, 100 N.M. 111, 115, 666 P.2d

1258, 1262 (Ct. App.), cert. denied,

100 N.M. 53, 665 P.2d 809 (1983). The

degree of proof necessary to justify

a search warrant supported by probable

cause 1S “more than a suspicion or

possibility but less than a certainty

of proeot.* 2s. at: 2367 9666: Bi2e at

1263.

The relevance of the time factor

depends on whether the alleged criminal

activity indicates an isolated transaction

or a continuing series of events.

Garcia, 90 N.M. at 578, 566 P.2d at

427. Regarding the time factor, the

Garcia Court also stated the following:

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"If there is a reasonable basis

in the affidavit for the conclusion

that the criminal activity alleged

by the informer is of a continuing,

ongoing nature, the passage 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.”

id. at 579, 566 P.2d at 428 (quoting

State v, Austria, 524 P.2d 290, 294

(Haw. 1974)).

Under the circumstances of this

case, the affidavit contains the

following information to support a

conclusion that Defendant, who was

listed in the affidavit as residing

at the address where the marijuana had

been observed, was engaged in possession

of illegal drugs on a continuing basis

rather than just a single occurrence:

(1) based on information from the New

Mexico Department of Probation and

Parole, Defendant had just completed

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a probation period for possession of

marijuana two months before issuance

of the warrant; (2) based on information

provided by officer Hill of the

Roswell Police Department, Hill had

arrested Defendant on prior occasions

for possession of illegal drugs. See

Garcia, 90 N.M. at 579, 566 P.2d at

428 (month-old information from informants

regarding their personal observation

of heroin on premises on separate

occasions and statements regarding

the defendant’s personal heroin habit

demonstrated criminal activity of a

continuing and ongoing nature that

was not stale for purpose of establishing

probable cause). Nor are we persuaded

by Defendant’s argument that seventy-

two hours is necessarily an extensive

amount of time between a reliable

informant’s observation and the issuance

of a warrant. The circumstances of the

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instant case can be distinguished

from those in State v, Powell, 96 N.M.

569, 632 P.2d 1207 (Ct. App. 1981),

in which the only reliable information

indicated-criminal drug activity that

ended six months prior to the issuance

of the warrant. See id, at 570-71, 632

P.2d at 1208-09.

Unlike the Oregon cases upon

which Defendant relies, the affidavit

in the instant case contains information

that would indicate that the marijuana

might still be on Defendant’s premises

at the time the warrant was issued.

see Scheer, 620 P.2dat 974-75 (affidavit

failed to establish probable cause

when there were no distinguishing

details to show why “a quantity of

green vegetable substance” identified

as marijuana would still be on the

premises forty-eight hours later);

Kittredge, 585 P.2d at 424-25 (evidence

was suppressed the affidavit failed

to provide any details as to the

amount of drugs observed, who occupied

the premises that were searched, who

possessed the marijuana, or any prior

history regarding the suspects). The

court in Kittredge acknowledged that

the scales might have been tipped to

uphold the affidavit had there been

details specifying who resided at the

premises being searched and details

regarding a history of drug activity

on the part of the suspects. Jd, at

425; see State v, Scheidemann, 448

P.2d 358, 360 (or. 1968); State vy,

Black, 585 P.2d 44, 46 (or. Ct. App.

1978). In the case at hand, the

affidavit contains information to

reasonably support the following

conclusions: (1) Defendant is engaged

in the criminal activity of possession

of drugs on an ongoing basis; (2)

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Defendant resides at the premises to

be searched; and (3) Defendant has a

prior history of involvement with

illegal drugs. Therefore, we determine

that the information in the affidavit

was not stale. Accordingly, we affirm

the trial court’s determination that

the affidavit sufficiently complied

with probable cause requirements.

FUNDAMENTAL ERROR

Defendant contends that it was

fundamental error for his first trial

attorney to fail to raise the “no

knock rule” issue in the motion to

suppress. Defendant further argues

that it was fundamental error for the

trial court to refuse Defendant’s

second trial attorney, who is also the

counsel on appeal, an opportunity to

raise the no knock issue during voir

dire. We are not persuaded by either

of Defendant’s arguments.

Any failure by the first attorney

to raise the no knock issue in the

motion to suppress could have been

sured by current counsel. Specifically,

counsel could have requested the

trial court to suppress the evidence

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9 on this basis. Counsel cites to no

40 such efforts to invoke a ruling of the

“3 trial court. In addition, counsel

13 admits that his only attempt to raise

14 this issue at the trial level was made

1 during voir dire, even though he was

17 alerted to the possible relevance of

is this issue prior to trial.

=e There is no factual basis to

21 support Defendant’s allegation that

22 the trial court would not allow the

24 no knock issue to be raised. The trial

25 court merely prevented counsel from

26 raising the issue during the inappropriate

= 58 time of voir dire for what was, in all

likelihood, an inappropriate purpose.

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see State v. Sheetz, 113 N.M. 324,

327, 825 P.2d 614, 617 (Ct. App. 1991)

(proper standard of police conduct is

a question of law and policy to be

decided by courts). In order to

preserve an issue for review on

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9 appeal, it must appear that the

40 appellant fairly invoked a ruling of

12 the trial court on the same grounds

13 argued in the appellate court. Woolwine

14)! vy. Furr’s Inc,, 106N.M. 492, 496, 745

i P.2d 717, 721 (Ct. App. 1987). Failure

17 to make a specific argument results

48 ina failure to preserve the issue for

7 appellate review. State v. Goss, 111

re N.M. 530, 532-33, 807 P.2d 228, 230-

21) 31 (Ct. App.), cert. denied, 111 N.M.

416, 806 P.2d 65 (1991). Accordingly,

25 we determine that Defendant failedto

s¢ preserve this issue for appeal.

- In its discretion, an appellate

court may review an issue raised for

I OP EER, OE ae eT ee ee aN” LOE oe ae ee

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the first time on appeal if it

involves fundamental error. SCRA1986,

12-216 (B) (2) (Repl. 1992). However,

in the instant case there are no facts

in evidence upon which this Court can

evaluate the merits of a fundamental

error claim. The only information in

the record regarding the no knock

issue consists of comments made by

counsel during voir dire. Arguments

of counsel, unsupported by evidence,

do not constitute evidence. State vy.

Wynne, 108 N.M. 134, 136, 767 P.2d

373, 375 (Ct. App. 1988), gexrt,

denied, 108 N.M. 115, 767 P.2d 354

(1989). Nor can this Court speculate

as to matters outside the record.

State v. Henderson, 81 N.M. 270, 271-

72, 466 P.2d 116, 117-18 (Ct. App.

1970). Due to the total absence of any

factual basis in the record upon which

to evaluate the no knock issue, we are

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unable to decide the merits of this

issue.

For the reasons stated above, we

affirm.

IT IS SO ORDERED.

LYNN PICKARD, Judge

WE CONCUR:

PAMELA B. MINZNER, Chief Judge

WILLIAM W. BIVINS, Judge

IN THE DISTRICT COURT OF CHAVES COUNTY

STATE OF NEW MEXICO

STATE OF NEW MEXICO,

Plaintiff,

CR-92-103

CHRIS LUCERO,

Defendant.

The Defendant’s Motion to Suppress

came on for hearing on the 15th of June

1992. Based upon review of the Affidavit

for Search Warrant and the memoranda

furnished to the Court, the Court

finds:

1. The time period set out in the

affidavit - within the past 72 hours-

does not render the information stale;

2. There is sufficient information

in the Affidavit regarding the reliability

of the informant that a neutral magistrate

could properly find that the information

furnishes probable cause for the issuanee

of a search warrant.

Accordingly, the Court concludes

that there was probable cause for the

issuance of the Search Warrant inthis

case, and the Motion to Suppress Is

denied.

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Submitted by

ERNON

SENIOR TRIAL PROSECUTOR

Noted:

MONICA MUNOZ e

ASSISTANT PUBLIC DEFENDER

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