STATE OF NEW MEXICO, Plаintiff-Petitioner, v. LESTER BOYSE and CAROL BOYSE, Defendants-Respondents.
Docket No. 33,257
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
June 10, 2013
Opinion Number: 2013-NMSC-024
VIGIL, Justice.
ORIGINAL APPEAL ON CERTIORARI Fernando R. Macias, District Judge Gary K. King, Attorney General William H. Lazar, Assistant Attorney General Santa Fe, NM for Petitioner Jeffrey C. Lahann Las Cruces, NM for Respondents
OPINION
VIGIL, Justice.
I. INTRODUCTION
{1} This case requires us to interpret the New Mexico Constitution to determine whether it allows for the process of requesting and approving search warrants by telephone.
II. FACTUAL BACKGROUND
{2} Lester and Carol Boyse (Defendants) were each charged with fifty-two counts of felony cruelty to animals contrary to
{3} On August 21, 2008, officers from the Doña Ana County Sheriff‘s Department and the Mesilla Marshal‘s Department investigated a neighbor‘s complaint regarding a dead horse on Defendants’ property. During the initial investigation, officer Jeff Gray from the Mesilla Marshal‘s Department learned that Defendants kept a large number of animals on their property. He also learnеd that there was a strong foul odor coming from Defendants’ property. Officer Gray interviewed Defendant Carol Boyse, who admitted to having two dead horses on her property, keeping several other horses untended, and keeping an unknown number of cats inside her house, including three dead cats in her freezer.
{4} Even though Officer Gray had obtained verbal consent from Defendant Carol Boyse to enter the house, his supervisor instructed him to obtain a search warrant. Officer Gray prepared a detailed, type-written affidavit as part of an application for a search warrant to investigate what he described as extreme animal cruelty at Defendants’ property. By the time Officer Gray completed the search warrant application, the magistrate court was already closed, so he left a voice-recorded message for the on-call judge. The magistrate judge returned the call. Over the telephone, the magistrate judgе administered an oath to Officer Gray, who then read the entire written affidavit verbatim. The magistrate judge approved the search warrant over the telephone, and Officer Gray noted the approval on the search warrant form. Officer Gray then immediately executed the search warrant. Officer Gray later obtained the magistrate judge‘s actual signature and initials on the search warrant and affidavit.
III. PROCEDURAL HISTORY
{5} Defendants moved to suppress the evidence seized from their property, arguing that the search warrant was invalid because it was improperly obtained by telephone in violation of
{6} The district court denied Defendants’ motion, finding that the search warrant was based upon a sworn written statement of facts showing sufficient probable cause under thе requirements of
{7} On appeal, the Court of Appeals reversed, interpreting the written “showing” of probable cause requirement in
IV. STANDARD OF REVIEW
{8} This is a case of constitutional interpretation. “We review [questions] of statutory and constitutional interpretation de novo.” State v. Ordunez, 2012-NMSC-024, ¶ 6, 283 P.3d 282 (internal quotation marks and citation omitted). “The most important consideration for us is that we interpret the constitution in a way that reflects the drafters’ intent.” State v. Lynch, 2003-NMSC-020, ¶ 24, 134 N.M. 139, 74 P.3d 73. In interpreting the Constitution, the rules of statutory construction “apply equally to constitutional construction.” State ex rel. Richardson v. Fifth Judicial Dist. Nominating Comm‘n, 2007-NMSC-023, ¶ 17, 141 N.M. 657, 160 P.3d 566.
{9} Under the rules of statutory construction, we first turn to the plain meaning of the words at issuе, often using the dictionary for guidance. See State v. Nick R., 2009-NMSC-050, ¶ 18, 147 N.M. 182, 218 P.3d 868 (recognizing that our courts interpret the intended meaning of statutory language by consulting the dictionary to ascertain the words’ ordinary meaning). The plain meaning rule requires that statutes “be given effect as written without room for construction unless the language is doubtful, ambiguous, or an adherence to the literal use of the words would lead to injustice, absurdity or contradiction, in which case the statute is to be construed according to its obvious sрirit or reason.” State v. Maestas, 2007-NMSC-001, ¶ 9, 140 N.M. 836, 149 P.3d 933 (internal quotation marks and citation omitted).
V. DISCUSSION
{10} Defendants argue, and the Court of Appeals agreed, that telephonically approved search warrants violate
A. THE NEW MEXICO CONSTITUTION ALLOWS FOR REQUESTING AND APPROVING SEARCH WARRANTS BY TELEPHONE
{11} Defendants argue that the process of requesting and approving search warrants by telephone violates the plain language of
The New Mexico Constitution provides that:
[t]he people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the persons or things to be seized, nor without a written showing of probable cause, supported by oath or affirmation.
{12} We recently amended our rules of criminal procedure for the district courts to specifically recognize the process of requesting and approving search warrants through remote means, including by telephone. See Rule 5-211(F) & (G). But the rules were silent as to the recognized methods for requesting a search warrant on August 21, 2008, when the magistrate judge approved the search warrant at issue in this case. See Rule 5-211 (1980) (amendеd 2012); Rule 6-208; Rule 7-208; Rule 8-207. Notably, Rules 6-208, 7-208, and 8-207 have since been amended to provide for remote issuance of search warrants. See Supreme Court Order No. 13-8300-011 (adopting amendments to these rules, which will be effective July 15, 2013).
{13} Therefore, the question before us is whether telephonic approval of search warrants was allowed because at the time the rules did not expressly disallow the issuance of a search warrant telephonically. To answer this question we interpret the сonstitutional requirements
1. THE PLAIN MEANING OF “SHOWING” IS A PRESENTATION OR STATEMENT OF FACTS OR EVIDENCE
{14} Defendants argue that a written “showing” of probable cause in support of a search warrant cannot be made over the telephone because “[t]o show something obviously means to present it for viewing.” Yet, placing something into sight or view is just one of multiple definitions for “show” and “showing.” See, e.g., Webster‘s Third New Int‘l Dictionary of the English Language Unabridged (Webster‘s Dictionary) 2105-06 (1976); see also Nick R., 2009-NMSC-050, ¶¶ 18-19 (interprеting the intended meaning of “weapons” as used by the Legislature by consulting dictionaries to ascertain the word‘s ordinary meaning). Other definitions of “[to] show” include “. . . to make evident or apparent; . . . to give a reading of; . . . to set forth in a statement, account or description; . . . [and] to demonstrate or establish by argument or reasoning.” Webster‘s Dictionary 2105. Definitions of “showing” as a noun include “a statement or presentation of a case or an interpretation of a set of facts” and “proof or prima facie proof of a matter of fact or law.” Id. at 2106. Black‘s Law Dictionary 1385 (7th ed. 1999) defines a “showing” as “[t]he act or instance of establishing through evidence and argument; proof.” Historically, Black‘s Law Dictionary 1086 (2d ed. 1910), available at http://blacks.worldfreemansociety.org/2/S/s1086.jpg, defined “[to] show” as “to make apparent or clear by evidence; to prove.” Notably, this definition was available when the New Mexico Constitution was adopted in 1911. Based on the plain meaning of the term, we conclude that a “showing” of probable cause required under
{15} The focus of our interpretation is different than that of the Court of Appeals. It interpreted the operative constitutional clause to mean that a judge must actually see a written statement of probable cause prior to issuance of a search warrant. Our interpretation, based ultimately on the intent and purpose of the clause, focuses instead on how the probable cause statement is shown to the magistrate prior to issuance of a search warrant. We do not agree that the written statement has to be physically shown prior to the issuance of a warrant. Rather, the probable cause statement must be presented to the magistrate—either by audio, visual or other sensory means—by an officer, under oath, prior to issuance. Such a procedure does not eliminate the requirement that the probable cause statement be in writing, but rather provides flexibility, while still protecting the constitutional guarantees of privacy.
2. OUR INTERPRETATION OF “SHOWING” DOES NOT LEAD TO INJUSTICE, ABSURDITY, OR CONTRADICTION AND IS CONSISTENT WITH THE SPIRIT OF THE CONSTITUTIONAL SEARCH WARRANT REQUIREMENT
a. THE PURPOSES OF THE CONSTITUTIONAL SEARCH WARRANT REQUIREMENT ARE TO PROVIDE ASSURANCE AGAINST UNREASONABLE INTRUSION AND GIVE NOTICE TO THE INDIVIDUAL WHO IS SUBJECT TO THE SEARCH
{17}
{18} We hold individuals’ privacy rights in such high regаrd that we require every search warrant to be supported by a sworn, written statement of facts—an affidavit— showing probable cause. See Ortega, 117 N.M. at 162, 870 P.2d at 124; accord Rule 6-208(B) (stating that a search warrant issued by the magistrate court “shall contain or have attached the sworn written statement of facts showing probable cause for its issuance“); Rule 5-211(B) (same for the district court); Rule 7-208(B) (same for the metropolitan court); Rule 8-207(B) (same for the municipal court); see also State v. Balenquah, 2009-NMCA-055, ¶ 25, 146 N.M.267, 208 P.3d 912 (“[A] valid warrant must be supported by a sworn, written statement—that is to say, an affidavit.“). “The purpose of an affidavit is to establish probable cause for the search and seizure.” Malloy, 2001-NMCA-067, ¶ 16. In other words, the affidavit requirement gives individuals assurance that their property will not be subject to unreasonable searches by the state.
{19} In addition to establishing probable cause for the search, the search warrant and the affidavit referenced in the warrant also provide notice to an individual of the officer‘s authority and of the subject property the state has targeted for the search. Once an officer establishes probable cause and secures a warrant from the issuing court, the officer has the
b. TELEPHONIC APPROVAL OF SEARCH WARRANTS INCURS NO INJUSTICE, ABSURDITY, OR CONTRADICTION AND PRESERVES THE INTENT AND PURPOSE OF THE CONSTITUTIONAL SEARCH WARRANT PROVISION
{20} The search warrant requirement—together with the constitutional mandate that a search warrant be supported by a sworn, written showing of probable cause—provides the total and permanent record for the individual whose privacy interest the state intrudes upon. This record serves two purposes: assurance against unreasonable searches and notice to persons whose property is subject to search. Our interpretation of the word “showing” in
{21} Our amended rules of criminal procedure for the district courts and courts of limitеd jurisdiction now recognize the process of requesting and approving search warrants by telephone. See Rule 5-211(F) & (G); Rule 6-208(G) & (H); Rule 7-208(F) & (G); and Rule 8-207(G) & (H). Notably, the amended rules contain the same requirements for executing a search warrant approved by telephone as were required before the amendment explicitly recognized telephonically approved search warrants. Compare Rule 5-211(C) (requiring an officer seizing property under the warrant to give the owner copies of (a) the sеarch warrant; (b) the affidavit showing probable cause for the search; and (c) an inventory of the property seized), with Rule 5-211(C) (2008) (amended 2012) (listing the same requirements of an officer seizing property as under the amended rule); accord Rule 6-208 (D) NMRA (containing the same requirement for a search warrant obtained in magistrate court); Rule 7-208(C) NMRA (containing the same requirement for a search warrant obtained in metropolitan court); Rule 8-207(D) NMRA (containing the same requirement for a search warrant obtainеd in municipal court). Our interpretation of the word “showing” in
B. DEFENDANTS’ POLICY ARGUMENTS ARE UNPERSUASIVE
{22} Using policy arguments, Defendants note that jurisdictions that recognize telephonic sеarch warrants also impose additional procedural safeguards that law enforcement and court officers did not follow in this case. Defendants cite the Federal Rules of Criminal Procedure as well as caselaw from Illinois, Mississippi, New Jersey, and Washington.
1. ADDITIONAL PROCEDURAL SAFEGUARDS UNDER FEDERAL LAW APPLY ONLY IN CIRCUMSTANCES THAT DO NOT EXIST HERE
{23} Defendants point out that the Federal Rules of Criminal Procedure contain the requirements that an officer applying for a search warrant by telephone be placed under oath, that the telephonе call be recorded, and that the recording be transcribed and certified. See
{24} The federal rules provide that “[a] magistrate judge may consider information communicated by telephone or other reliable electronic means when . . . deciding whether to issue a warrant or summons.”
{25} In this case, only the procedures described in Federal Rule 4.1(b)(1) and (b)(2)(A) would apply because Officer Gray merely attested to the contents of a written affidavit over the telephone. Thus, under the federal rules, the magistrate judge would be required to place Officer Gray under oath and acknowledge his attestation on the affidavit. Based on the record before us, we conclude that the procedures required under federal law were actually satisfied in this case.
2. DEFENDANTS’ RELIANCE ON CASELAW FROM OUTSIDE NEW MEXICO IS MISPLACED
{26} Defendants argue that New Mexico should not permit telephonic approval of search warrants becаuse there are inherent dangers when a search warrant is issued in the absence
{27} We point out that New Mexico‘s criminal statutes and procedural rules are distinguishable from those of Mississippi, New Jersеy, and Washington. For example, the rules in Mississippi and New Jersey specifically require a judge issuing a search warrant to have face-to-face contact with a search warrant applicant, whereas the rules of New Mexico do not. Compare
{28} The rules of criminal procedure in Washington differ from the rules in New Mexico, most notably in that Washington does not require a search warrant to be based on a “written” showing of probable cause. Compare Washington Courts of Limited Jurisdiction Criminal Rules Wa CrRLJ 2.3(c) (“There must be an affidavit . . . or sworn testimony establishing the grounds for issuing the warrant. The sworn testimony may be an electronically recorded telephonic statement.” (emphasis added)), with Rule 6-208 (B) (“The warrant shall contain or have attached the sworn written statement of facts showing probable cause for its issuance[.]“). Since the rules in Washington do not require a “written” showing of probable cause, as the rules in New Mexico require, it follows that Washington would impose alternative procedures in lieu of the writing requirement in order to provide persons whose property is targeted for the search with reasonable assurance that there is probable cause to intrude upon their privacy interests. See, e.g., Washington Courts of Limited Jurisdiction Criminal Rules Wa CrRLJ 2.3(c) (“The recording [of the sworn statement of probable cause], or a duplication of the recording, shаll be a part of the court record and shall be [transcribed] if requested by a party or if ordered by the court[.]“). This does not mean these requirements must also apply in New Mexico. Lacking the requirement of a written showing of probable cause, the search warrant procedures under Washington‘s rules necessarily differ from those under New Mexico‘s rules. Since our rules have requirements distinguishable from those in the Washington Rules, Defendants’ reliance on Myers is misplaced.
{29} We also point out that the faсts of the case before us are distinguishable from the facts in the case from Illinois on which Defendants rely. In Taylor, the Appellate Court of Illinois noted that the procedure used to obtain the search warrant lacked adequate procedural safeguards because “the judge issuing the warrant had no means of ascertaining
{30} We are unpersuaded by any of the policy arguments that Defendants advance under federal law and other jurisdictions outside New Mexico to support their claim that the telephonically approved search warrant in this case should be invalid. Accordingly, we hold as a matter of law that the search warrant at issue here is valid.
VI. CONCLUSION
{31} We hold that telephonic approval of search warrants is consistent with
{32} IT IS SO ORDERED.
BARBARA J. VIGIL, Justice
WE CONCUR:
PETRA JIMENEZ MAES, Chief Justice
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice
CHARLES W. DANIELS, Justice
Topic Index for State v. Boyse, No. 33,257
Standard of Review
CRIMINAL LAW
Cruelty to Animals
CONSTITUTIONAL LAW
Fourth Amendment
New Mexico Constitution, General
Suppression of Evidence
CRIMINAL PROCEDURE
Motion to Suppress
Peace Officer
Probable Cause
Search and Seizure
Warrant