Lead Opinion
OPINION
{1} Two police officers observed Defendant Heather Nyce shopping for tincture of iodine and hydrogen peroxide, merchandise which among other things can be used in the manufacture of methamphetamine. Based on the officers’ training and experience, they grew suspicious. They submitted an affidavit to a magistrate judge and obtained a search warrant for the residence where Defendant delivered her purchases. After Defendant was arrested and charged with conspiracy for trafficking methamphetamine by manufacturing, she filed a motion to suppress incriminating evidence obtained inside the residence. The district court denied the motion to suppress, and the Court of Appeals affirmed. We granted certiorari to examine inferences that may fairly be drawn from the lawful, yet suspicious, purchase of common merchandise that is capable of use in the manufacture of methamphetamine. We now reverse, holding that the affidavit did not establish probable cause for the search warrant.
BACKGROUND
{2} The following information is taken from the affidavit for the search warrant. Defendant purchased tincture of iodine and hydrogen peroxide at two stores. Both ingredients are used in the manufacture of methamphetamine. When purchasing the iodine at Wal-Mart with her infant daughter in the shopping cart, Defendant proceeded immediately to the pharmaceutical aisle and bought four 1-ounce bottles, all the iodine that was on the shelf. She placed the iodine in her shopping cart and covered it with a large box that was already in her cart. Defendant first proceeded to an automated, self-pay register with the iodine. When she noticed a line, she went to a register staffed by a cashier. Although hydrogen peroxide was available at Wal-Mart, Defendant then went to an Allsup’s and purchased a 1-pint bottle of hydrogen peroxide.
{3} New Mexico State Police Agents Carr and Suggs, the officers who observed Defendant, became suspicious of her purchases for a number of reasons. In the affidavit, Agent Carr noted that in his experience observing purchases of tincture of iodine, most people buy only one bottle. He also stated that it was his experience that persons who shop for methamphetamine ingredients will often buy the items at more than one store to avoid being detected by law enforcement. Agent Carr noted that persons who are buying drug precursors
{4} Defendant took the iodine and peroxide to the home of her boyfriend, Peter Cook. The agents suspected that Cook was involved in the manufacturing of methamphetamine because allegedly he had been seen approximately one year before stealing and purchasing methamphetamine ingredients. Also, about a year before Defendant’s purchase, Agent Suggs saw Defendant at the home of an individual who Agent Carr knew had been arrested for involvement in methamphetamine manufacture and whose girlfriend had been convicted of the same crime.
{5} The agents presented their affidavit to a magistrate judge and requested a warrant to search Cook’s home. The magistrate determined there was probable cause and issued the warrant. At the Cook house, the agents found ingredients and paraphernalia that are used to make methamphetamine as well as small amounts of the drug. They arrested both Cook and Defendant.
{6} After her arrest, Defendant moved to suppress items seized during the search. She argued that (1) the affidavit was insufficient to establish probable cause, (2) the affidavit contained false statements, (3) there was no nexus between Defendant and the place to be searched, and (4) the affidavit contained stale information that allegedly had occurred a year before. The district court concluded that the paragraphs which Defendant claimed were stale did “not add any information that establishes probable cause,”
{7} The Court of Appeals affirmed in a memorandum opinion. However, in its review of the sufficiency of the affidavit, the Court considered the stale evidence which the trial court found did not add to the probable cause determination. The Court also limited its decision to Defendant’s first issue: whether the affidavit was factually sufficient to establish probable cause. The Court ruled that Defendant abandoned the other three issues by failing to respond to the proposed disposition to affirm. See State v. Johnson,
DISCUSSION
Standard of Review
{8} We apply a de novo standard of review to a magistrate’s determination that an affidavit for a search warrant alleges facts sufficient to constitute probable cause. Gonzales,
The Probable Cause Requirement
{9} The Fourth Amendment to the United States Constitution and article II, section 10 of the New Mexico Constitution both require probable cause to believe that a crime is occurring or seizable evidence exists at a particular location before a search warrant may issue. See also Rule 5-211(A). Accordingly, law enforcement officials must present an affidavit to a “neutral and detached magistrate” demonstrating probable cause. Johnson v. United States,
{10} Probable cause exists when there are reasonable grounds to believe an offense has been or is being committed in the place to be searched. State v. Snedeker,
{11} Any search pursuant to a warrant that has an affidavit lacking in probable cause is unreasonable. 2 Wayne R. LaFave, Criminal Procedure § 3.3(a), at 83 (2d. ed.1999). Accordingly, while we give deference to a magistrate’s decision, and to an officer’s observations, experience, and training, their conclusions must be objectively reasonable under all the circumstances. See State v. Attaway,
{12} The presence of objective reasonableness is especially important when dealing with the search of a home. See State v. Ryon,
The Redacted Affidavit Did Not Establish Probable Cause
{13} Without the stale information redacted by the district court, the affidavit alleges that Defendant purchased two products, tincture of iodine and hydrogen peroxide, that are legal yet capable of being used illegally. One of those products, iodine, was purchased in an amount potentially inconsistent with personal use. Both products were purchased in a lawful yet suspicious manner, and were taken to the home in question. While these events appropriately may have been suspicious to an officer trained in the detection and interdiction of clandestine methamphetamine manufacturing, that suspicion does not necessarily equate to probable cause. See United States v. Drake,
{14} The key is whether the circumstances surrounding a lawful purchase are significant enough to give rise to probable cause. Our inquiry should be particularly exacting when both the purchase and its manner are equally consistent with legal activity. See State v. Anderson,
{15} In considering the inferences that one can reasonably draw from Defendant’s purchases, we first note that these products are not currently considered “drug precursors” or “immediate precursors” under the Drug Precursor Act, Sections 30-31B-1 to -18 (2004). See §§ 30-31B-2(L), (M), -3; 16 NMAC 19.21.35 (2005).
{16} The distinction between ingredients and precursors is directly relevant to the probable cause analysis in this case. While a product such as hydrogen peroxide or tincture of iodine can potentially have a limited use in the methamphetamine manufacturing process, a product that is an “immediate precursor” is, according to our Legislature, “a substance ... commonly used or produced primarily as an immediate chemical intermediary used in the manufacture of a controlled substance.” Section 30-31B-2(M) (emphasis added). In the realm of reasonable probabilities, therefore, it is more likely that the purchase of methamphetamine “precursors” or “immediate precursors” would be for an illicit purpose and give rise to an incriminating inference, as compared to the purchase of mere ingredients like iodine and hydrogen peroxide. The Legislature, along with the Board of Pharmacy, appears to have said as much, and we give those official classifications great weight when considering the appropriate inferences to be drawn from the purchase or possession of those products.
{17} In a given case, the purchase of even a legal product may be sufficiently large or otherwise suspicious to rise to the level of probable cause.
{18} Admittedly, Defendant’s purchase of the iodine casts a darker shadow. Four 1-ounee bottles might appear excessive, and more impressive still, it was all the iodine on the shelf. B%it see 2 Wayne R. LaFave, Search And Seizure § 3.7(d), at 412 (4th ed.2004) (explaining that a statement in an affidavit that an item can be used to manufacture illegal drugs is only a truism and adds nothing to probable cause). However, the officers’ remaining observations — Defendant covering the iodine in her shopping cart, her attempt to use the self-pay register, her hurried pace, and her purchase of hydrogen peroxide at another store — all serve to “highlight the ordinary, rather than the sinister,” in terms of what one can observe daily in shopping centers throughout the state. Anderson,
{19} In addition, the officers were seeking a warrant to search not just Defendant, but the house to which she delivered her purchases. When officers believe controlled substances are being manufactured in a residence, there must be a sufficient nexus in the affidavit between the activities observed, and the officers’ belief that manufacture is occurring at that home. 2 LaFave, supra, § 3.7(d). We have already explained why Defendant’s purchases did not create probable cause. The mere fact Defendant brought those same items to her home does not make it any more or less probable that she would use those items for an illicit purpose. In other words, it adds nothing to elevate her suspicious purchases from mere suspicion to probable cause, except that the officers needed more information to establish a reasonable belief that methamphetamine was being manufactured at the house. Thus, there was not a sufficient nexus between her purchases and this belief. Absent other probative information, the state and federal constitutions do not permit law enforcement, and especially the reviewing magistrate, to make the leap from suspicious, albeit legal, purchases of items that may be used to make methamphetamine to the actual manufacture of that substance at that particular location.
{20} Failure to draw this nexus was fatal to the affidavit in People v. Kazmierski,
{21} The Colorado Supreme Court’s foremost concern was the failure to “recite any other facts that would support probable cause to believe that the defendants were manufacturing methamphetamine inside the home.” Id. at 1212 (emphasis added). The Court noted additional factual allegations that might have sufficed, such as a distinctive odor associated with methamphetamine manufacture emanating from the home. Id.; see also United States v. Failla,
{22} In the main, observed suspicious activity should be the beginning, not the end, of the investigation. In Defendant’s case, the officers did not observe anything additional at the residence that would support a conclusion that methamphetamine was being manufactured inside. The officers reported no smells emanating from the house, no presence of equipment, supplies, or other methamphetamine ingredients or precursors other than the two small purchases Defendant brought to the house. The affidavit does not suggest that Defendant or Cook had previous arrests for the manufacture, sale, or possession of controlled substances, and contained nothing recent pointing to incriminating activities on their part. No individuals known to have been involved in the manufacture, sale, or possession of methamphetamine were seen at the household.
{23} The officers did not speak with neighbors to ask if they had observed any suspicious activities. There was no informant’s tip
{24} These are examples only, not an exhaustive list of what officers commonly do to complete a proper investigation. Absent some additional investigative effort of this kind, we are compelled to conclude that the affidavit did not sufficiently connect Defendant’s activities to the manufacture of methamphetamine at this particular residence. The officers acted prematurely in obtaining the warrant.
{25} Most judicial opinions brought to our attention concerning the manufacture of methamphetamine appear to require additional investigative activity, similar to the foregoing suggestions before a warrant will issue. See State v. Ballweg,
{26} We note one case from North Dakota particularly close to the facts before us. In State v. Lewis,
{27} Applying the holding in Lewis to the present case strongly suggests that Defendant’s purchases and other suspicious activity, without additional investigation, cannot rise to the level of probable cause necessary for a warrant to search a home. Cf. Balhveg,
{28} Accordingly, we conclude that Defendant’s suspicious activities did not give rise to probable cause to search the Cook residence. Because no other information was presented in the affidavit to confirm the officers’ suspicions and establish the crucial link to the residence to be searched, the affidavit was insufficient. The warrant was therefore unconstitutionally defective, and the evidence seized as a result of the search should have been suppressed.
CONCLUSION
{29} We reverse the order of the Court of Appeals affirming the district court’s denial of Defendant’s motion to suppress.
{30} IT IS SO ORDERED.
Notes
. The affidavit appears to use methamphetamine "ingredients” and methamphetamine "precursors” interchangeably. However, under the Drug Precursor Act, NMSA 1978, §§ 30-31B-1 to -18 (2004), none of the items purchased by Defendant were "precursors." See n. 3, infra.
. The stale information, not considered by the district court, was contained in three paragraphs of the affidavit. These included Cook having been observed stealing and purchasing methamphetamine ingredients, and Defendant having been associated with known methamphetamine manufacturers, both occurring a year or so before Defendant was observed making these purchases.
. The Court of Appeals and the State asserted that tincture of iodine and hydrogen peroxide are drug precursors under the Act. We are not persuaded. There is no mention of hydrogen peroxide anywhere in the Act. Iodine crystals and iodine matrix are listed as precursors, but the State, which has the burden of proof, presented no evidence that tincture of iodine is included in eilher of these two categories. Further, the affidavit only describes these items as ingredients, not precursors under the Act. It explains that tincture of iodine is used to make iodine crystals, which are a main ingredient to methamphetamine, and hydrogen peroxide is a main ingredient used to ciystalize tincture of iodine. Thus, at best, it appears these two items are used to make some of the ingredients or precursors of methamphetamine, but are not themselves precursors.
. For purposes of completeness, we observe that in New Mexico it is legal to purchase even a "precursor” or "immediate precursor.” See Section 30-31B-12; cf. State v. Harper,
. The dissent appears to interpret our distinction in this case between mere ingredients and precursors or immediate precursors as dispositive of the probable cause analysis. See infra, ¶ 33. This is simply not the case. Probable cause is a fact-based inquiry by nature, and the outcome of each case like this one will vary, not based on whether the items purchased are precursors, but rather all of the surrounding circumstances. We merely conclude in this case that Defendant’s purchases, while suspicious, did not give rise to probable cause. The suspicious inference might have been more persuasive had Defendant produced actual precursors.
. The dissent indicates that it would follow the Court of Appeals opinion in State v. Donaldson,
. See also United States v. Swanger, No.Crim. A.05-53-JBC.,
. The dissent argues, "This case does not compel invocation of the exclusionary rule.” See infra, ¶ 36. For this proposition, the dissent cites to United States v. Leon,
Dissenting Opinion
(dissenting).
{31} I respectfully dissent. I would affirm the district court and the unanimous Court of Appeals panel. As a preliminary matter, I prefer the State v. Gomez interstitial analysis in adjudicating overlapping state and federal constitutional claims.
{32} The first issue is whether the affidavit presented to the magistrate satisfied probable cause for a search. The affidavit detailed how Defendant took all four 1-ounce bottles of iodine available at the store off the shelf and hid it under something else in her cart before purchasing it. Defendant then went to another store to purchase hydrogen peroxide, even though hydrogen peroxide was available at the first store very near the iodine. The majority states that this highlights the ordinary; I cannot agree that this is ordinary behavior, especially given the fact that the law enforcement affiant knew through training and experience that “most people purchasing tincture of iodine generally buy only one bottle” and “persons shopping for methamphetamine precursors often buy the items at more than one store in order to avoid detection by law enforcement.”
{33} The Majority Opinion, ¶ 16, states, “[t]he distinction between ingredients and precursors is directly relevant to the probable cause analysis in this ease.” • It is too formalistic to argue that a judge’s probable cause determination should be affected by the fact that tincture of iodine and hydrogen peroxide are ingredients to create an immediate precursor, but are not formally listed as immediate precursors. It goes against common sense and the facts presented to the magistrate. State v. Donaldson,
Affiant knows through training and experience that tincture of iodine is used to make iodine crystals, which are a main ingredient used in the manufacture of methamphetamine ____ Affiant knows through training and experience that hydrogen peroxide is a main ingredient used to crystallize iodine from tincture of iodine. Affiant also knows through training and experience that iodine cannot be used in the tincture form for the manufacturing of methamphetamine, rather it must first be crystallized using hydrogen peroxide.
The affidavit is clear that law enforcement knew that tincture of iodine and hydrogen peroxide are ingredients that easily become iodine crystals, a main ingredient for methamphetamine. Iodine crystals are formally called an immediate precursor in New Mexico’s administrative code. 14 NMAC 16.19.21.35. How are we advancing state and federal constitutional protections by concluding that tincture of iodine and hydrogen peroxide, which are combined to create the immediate precursor of iodine crystals, are in a totally different category from the already-formed iodine crystals, and do not give rise to probable cause even when bought on the same day by a suspect? Perhaps the Legislature ought to consider amending the Drug Precursor Act to clarify its intent regarding whether multiple ingredients that combine to become immediate precursors bought by a suspect on the same day should be treated differently than immediate precursors per se.
{34} In addition to the inferences that can be drawn from the affidavit, our courts have previously decided this issue in Donaldson,
{35} The second issue is whether the information in the affidavit created a sufficient nexus to the home to be searched. The Majority Opinion, ¶ 19, states a proposition and uses the term “sufficient nexus” without any citation to case law authority to support the proposition or explain the term so that it can be consistently applied in future cases. The facts are that Defendant delivered the methamphetamine ingredients to the house that was searched on the same day as her purchase.
The female subject returned to her vehicle and Affiant along with Agent Suggs followed her to a residence located at 18 Sage, Boles Acres, Otero County, New Mexico, as described above. Affiant and Agent Suggs observed the female, believed to be Heather Nyce, along with Peter Cook unload the shopping bags from the vehicle and carry them inside the residence.
Common sense tells me this is sufficient nexus. Common sense is also a controlling consideration in determining if probable cause existed. Donaldson,
{36} Defendant has convinced a majority of this Court to apply the exclusionary rule and suppress the evidence against her on the basis that the evidence was illegally obtained. Because I conclude that probable cause existed and Defendant’s constitutional rights were not trampled upon, I consider the rationale for the exclusionary rule. A purpose of the exclusionary rule is to deter police misconduct by excluding evidence that law enforcement acquired through unconstitutional means. In discussing the scope of the exclusionary rule, the United States Supreme Court stated “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” United States v. Leon,
{37} Instead, we have an opinion that relies upon non-binding precedent that the parties did not argue to the Court in order to come to a conclusion that will hamper law enforcement’s efforts in eradicating methamphetamine from New Mexico’s communities. Ironically, we do so in a case in which the Defendant pled no contest to manufacturing methamphetamine, which suggests that law enforcement’s suspicions were right on target. It is a pyrrhic victory for the constitutional protections against unreasonable search and seizure and for the exclusionary-rule.