STATE оf New Mexico, Plaintiff-Appellee, v. Carol BOYSE, Defendant-Appellant, State of New Mexico, Plaintiff-Appellee, v. Lester Boyse, Defendant-Appellant.
Nos. 30,656, 30,657.
Court of Appeals of New Mexico.
Sept. 19, 2011.
2011-NMCA-113 | 265 P.3d 1285
BUSTAMANTE, Judge.
Certiorari Granted, Nov. 4, 2011, No. 33,257.
Gary K. King, Attorney General, William Lazar, Assistant Attorney General, Santa Fe, NM, for Appellee.
Jeff C. Lahann, Christopher K.P. Cаrdenas, Las Cruces, NM, for Appellants.
OPINION
BUSTAMANTE, Judge.
{1} Defendants appeal the denial of a motion to suppress evidence that was obtained pursuant to a warrant that the investigator obtained by telephone. At issue is whether such warrants are recognized under the New Mexiсo Constitution. We hold that they are not and reverse.
I. BACKGROUND
{2} On August 21, 2008, Sergeant Jeff Gray (Investigator) responded to a call about a dead horse smell at Defendants’ residence. Investigator saw evidence of numerous problems and decided to obtain a search warrant. The courts were closed, and Investigator did not attempt to find the judge in person. Instead, Investigator contacted the on-call judge, Judge Oscar Frietz, by telephone in order to obtain verbal approval for the warrant.
{3} Investigator described the procedure by whiсh the warrant was obtained as follows. Investigator prepared a typewritten affidavit in the same way he would have for a written search warrant. Investigator then spoke over the telephone with Judge Frietz. Judge Frietz administered an oath to Investigator, and Investigator rеad to him the statement of facts in support of the search warrant. The judge orally approved the warrant at 8:55 p.m., and Investigator signed the judge‘s name to the warrant. The warrant was executed immediately. At some point in the next several days after the warrant had been executed, the judge signed and initialed the warrant.
II. DISCUSSION
{4} Defendants argue that telephonic warrants are not valid in New Mexico because (1) they are inconsistent with our rules and
{5}
The 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, shаll 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.
(emphasis added). It is well settled that this section of the New Mexico Constitution provides greater protection than the Fourth Amendment. See State v. Leyva, 2011-NMSC-009, ¶ 51, 149 N.M. 435, 250 P.3d 861. Our rule governing warrants is equally clear. See
{6} The question of whether New Mexico recognizes telephonic warrants has important implications. If such warrants are recognized, then our review is deferential, and we “must determine whether the affidavit as a whole, and thе reasonable inferences that may be drawn therefrom, provide a substantial basis for determining that there is probable cause to believe that a search will uncover evidence of wrongdoing.” State v. Williamson, 2009-NMSC-039, ¶ 29, 146 N.M. 488, 212 P.3d 376. If they are not recognized, then this was a warrantless search, and thе burden is on the State to prove that an exception to the warrant requirement applies. See State v. Gutierrez, 2004-NMCA-081, ¶ 6, 136 N.M. 18, 94 P.3d 18.
{7} It is clear that telephonic warrants do not violate the Fourth Amendment. See
A. Oath and Affirmation
{8} As an initial matter, we must consider whether the affidavit prepared by Investigator was supported by oath or affirmation. If it was not, the warrant is not valid. See
{9} It is not clear that an oath can be administered over the telephone. See 58 Am. Jur. 2d Oath & Affirmation § 18 (2011) (“[T]he law requires the person taking an oath to be in the personal presence of the officer administering it. Oaths cannot be taken or administered over the telephone.” (footnote omitted)). It is nevertheless possible thаt the affidavit was supported by oath or affirmation. “A sworn statement is one made under penalty of perjury.” Citizens for Incorporation, Inc. v. Bd. of Cnty. Comm‘rs, 115 N.M. 710, 715, 858 P.2d 86, 91 (Ct.App.1993). It is not inconceivable that Investigator could face perjury charges if the statements in the affidavit are false. See State v. Knight, 2000-NMCA-016, ¶¶ 25-29, 128 N.M. 591, 995 P.2d 1033 (holding that an affidavit was sufficient despitе failure to comply with statutorily required formalities). However, it is not necessary for us to decide the issue. Instead, we assume without deciding that the “affidavit for search warrant” and the “statement of facts in support of search warrant” were sworn statements supported by оath or affirmation.
{10} Every state has its own constitutional provision protecting against unreasonable searches and seizures. All but two of these provisions require a sworn showing of probable cause. See
{11} The requirement of a writing is key to our analysis.
{12} We are aware of only one state with a writing requirement that has allowed the sort of telephonic warrant at issue here. In State v. Badger, two roommates were convicted of possession of a controlled substance with intent to deliver. 96 Idaho 168, 525 P.2d 363, 364 (1974). They appeаled the denial of their motion to suppress evidence on the ground that the warrant was based on electronically recorded testimony. Id. The Idaho constitution requires that probable cause be shown by affidavit. See
{13} We are not in a position to adopt the reasoning from Badger. Unlike the Idaho Supreme Court, the New Mexico Court of Appeals does not have rule-making power. See Ammerman v. Hubbard Broad., Inc., 89 N.M. 307, 312, 551 P.2d 1354, 1359 (1976) (holding that rule-making рower is vested exclusively in the New Mexico Supreme Court). Furthermore, we are bound by Supreme Court precedent defining an affidavit as a writing. See Kiehne, 93 N.M. at 667, 604 P.2d at 133. Even if we were not so bound, we would agree with Judge McFadden‘s dissent, which correctly noted that the vast majority of authority concludes that an affidavit must be a writing. See Black‘s Law Dictionary 66 (9th ed. 2009) (defining “affidavit” as a “voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths“); Webster‘s Third New Int‘l Dictionary 35 (1986) (defining an “affidavit” as “a sworn statement in writing
{14} The State has also directed our attention to cases from Illinois and South Dakota, both of which require probable cause to be supported by affidavit. The State‘s argumеnt appears to be that since these states have “codified procedures governing telephonic search warrants,” such warrants are compatible with constitutions requiring a writing. It is true that the legislature of Illinois has enacted a procedure governing the issuance of telephonic warrants. See
{15} South Dakota has taken a different approach. The South Dakota statute provides a procedure for obtaining a telephonic warrant and states that, where the procedure is followed, the certified, filed transcription of the telephone conversation “shall be deemed to be an affidavit.”
{16} The mere existence of a sworn writing is not enough to sаtisfy the requirements of
{17} There are obvious problems with the procedure that was followed in this cаse. Investigator testified that he read the statement of facts verbatim to the magistrate judge after he was sworn during the phone conversation. However, the district court had no way of knowing whether the writing actually existed. If the affidavit did exist, the judge had no way of determining whether thе Investigator‘s reading of the affidavit was verbatim. If the reading was verbatim, the judge had no way of knowing whether the affidavit was modified in the days between when the phone conversation took place and when the affidavit was actually signed by the judge. There is also no way to determine whether the conversation included material not contained in the affidavit. In short, neither Defendants nor this Court has any way to review the basis of the court‘s decision that there was probable cause. The potential for error or abuse in such a procеdure is evident.
{18} With appropriate protections, telephonic warrants may well be useful and advisable. After all, New Mexico has a strong
III. CONCLUSION
{19} For the foregoing reasons, we reverse the order denying Defendants’ motion to suppress and remand for further proceedings consistent with this Opinion.
{20} IT IS SO ORDERED.
WE CONCUR: JAMES J. WECHSLER, Judge and CYNTHIA A. FRY, Chief Judge.