State v. Boyse
150 N.M. 712
N.M. Ct. App.2011Background
- On August 21, 2008, Investigator Gray investigated a dead horse odor at defendants' residence and sought a search warrant.
- Due to courts being closed, the investigator obtained verbal approval for the warrant from on-call Judge Frietz by telephone.
- The investigator prepared a typewritten affidavit and read the statement of facts to the judge during a telephonic oath, obtaining the judge's oral approval at 8:55 p.m.; the investigator signed the judge's name to the warrant.
- The warrant was executed immediately, and days later the judge signed and initialed the warrant.
- The NM Constitution, Article II, Section 10, requires a written showing of probable cause supported by oath or affirmation; NM Rule 6-208 also requires a sworn written statement for a warrant.
- The defendants moved to suppress the evidence, arguing telephonic warrants are invalid under NM law; the district court denied the motion, leading to this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether telephonic warrants are recognized under NM Constitution. | Boyse | Boyse | Telephonic warrants are not recognized in NM. |
| Whether the writing and oath requirements were satisfied for NM Article II §10. | State | Boyse | The procedure did not satisfy writing and oath requirements; warrant invalid. |
| Effect of invalid telephonic procedure on suppression of evidence. | State | Boyse | Evidence must be suppressed unless valid exception applies; here it does not. |
| Whether NM should adopt telephonic-warrant rules and how. | State | Boyse | NM should not recognize telephonic warrants absent Supreme Court rules. |
Key Cases Cited
- State v. Leyva, 149 N.M. 435, 250 P.3d 861 (2011-NMSC-009) (constitutional protection greater than Fourth Amendment; writing required for probable cause)
- State v. Gutierrez, 136 N.M. 18, 94 P.3d 18 (2004-NMCA-081) (analysis of warrant validity under NM law)
- State v. Gomez, 122 N.M. 777, 932 P.2d 1 (1997-NMSC-006) (strong preference for warrants; telephonic options questioned)
- State v. Williamson, 146 N.M. 488, 212 P.3d 376 (2009-NMSC-039) (if telephonic warrants recognized, deferential review of probable cause)
- Kiehne v. Atwood, 93 N.M. 657, 604 P.2d 123 (1979) (affidavit defined as writing sworn under oath)
- Ammerman v. Hubbard Broad., Inc., 89 N.M. 307, 551 P.2d 1354 (1976) (rule-making power vested in NM Supreme Court)