{1} Defendant, Ruben Rubio, appeals from his conviction for possession of cocaine. He argues that the trial court erred by denying his motion to suppress evidence obtained pursuant to a search warrant and his motion to suppress incriminating statements made to police while they were executing the search warrant. Additionally, Defendant claims that the trial court abused its discretion by admitting into evidence the cocaine found during the execution of the search warrant. We affirm.
{2} On January 11, 2000, Detective Daniel Carter of the Lea County Drug Task Force of the Hobbs Police Department prepared an affidavit for search warrant to search the home of Stephanie Sosa. The affidavit initially sets forth the place to be searched, the items sought to be seized, and the basis for the request. According to the affidavit, Detective Carter was contacted by Agent Darcy White of the New Mexico State Police. Agent White advised Detective Carter that she had been contacted by a “reliable” confidential informant who had provided information on at least two occasions in the past which led to the seizure of illegal narcotics. The affidavit states that the informant “is familiar with cocaine, it’s [sic] use, packageing [sic], and methods of sale due to his/her past involvement with cocaine.” It further states:
The above informant contacted affiant on 1/11/2000. This informant advised they were at a house in the 400.block of W. Temple during the 48 hours preceeding [sic] this date. While at this house, the informant observed a Spanish [sic] female known only as Stephanie in possession of a large quantity of cocaine. The informant provided a detailed description of the location of the cocaine and the package in which it is contained.
While in this house, this informant did observe a[sic] unknown Spanish [sic] male wearing white pants and a black shirt with a gun in the front of his pants. As the informant entered the house, this male reached for the gun but did not remove it from his pants.
{3} Based upon this information, the magistrate court issued a search warrant for Sosa’s residence at 401 W. Temple in Hobbs. Detective Carter, along with eight other officers, executed the search warrant. Defendant and a woman were in the residence at the time the warrant was executed. Detective Carter testified that he gave Defendant the required warnings pursuant to Miranda v. Arizona,
Sufficiency of the Affidavit
{4} Defendant argues that the information contained in the affidavit for the search warrant did not provide probable cause for the issuance of a search warrant. In reviewing the sufficiency of an affidavit submitted in support of the issuance of a search warrant, we apply a de novo standard of review. State v. Whitley,
{5} Defendant does not argue that the information contained in the affidavit failed the Aguilar-Spinelli test for reliability as adopted in New Mexico by our Supreme Court in State v. Cordova,
{6} We addressed the staleness of information in an affidavit in support of a search
{7} In Lovato, this Court concluded that there was insufficient evidence to establish probable cause to issue a search warrant when a confidential informant made a controlled purchase of heroin from a motel room within seventy-two hours. Lovato,
Although seventy-two hours is not necessarily an extensive amount of time between a reliable informant’s observation and issuance of a search warrant, under the facts and circumstances of the instant case, the affidavit fails to support a conclusion that criminal activity at the motel room was of an ongoing, continuous nature.
Id.
{8} Defendant correctly states that the question before this Court is whether, taking the circumstances of the case into account, the affidavit provided probable cause to indicate that the cocaine observed forty-eight hours earlier would still be at the residence. He argues that Whitley and Lovato are controlling and indicate that there was insufficient probable cause for the magistrate to issue a search warrant. Defendant contends that cocaine is highly consumable, making it less likely that it would still be present forty-eight hours after it was observed. However, the confidential informant told Agent White that there was a “large” quantity of cocaine in the residence. We recognize that the affidavit would be more persuasive if it also contained facts indicating the manner in which the cocaine was packaged as well as a more precise estimate of the amount of cocaine present. Nevertheless, all direct and circumstantial evidence, as well as all reasonable inferences that can be drawn from those allegations, should be considered. Pargas,
{9} Further, a magistrate may make inferences from the behavior described in the affidavit. State v. Duquette,
{10} Finally, although we agree with Defendant that there is no evidence in the affidavit setting forth any sales or pattern of sales of cocaine at the residence, such activity is only one factor to consider in determining whether there is probable cause to issue a search warrant. The confidential informant stated that there was a “large” amount of cocaine at a private residence guarded by a man with a gun within the previous forty-eight hours. The magistrate could reasonably infer from this information that the cocaine would still be at the residence at the time of the issuance of the search warrant.
Waiver of Fifth Amendment Right to Remain Silent
{11} Defendant argues that his statement to Detective Carter was not made after a knowing and voluntary waiver of Defendant’s Fifth Amendment right to remain silent. According to Defendant, there were several officers at the small residence at the time he gave his statement, and no other officer heard Detective Carter read Defendant his rights pursuant to Miranda,
{12} The trial court’s determination that Defendant agreed to waive his Fifth Amendment right to remain silent is a question of fact that we review for substantial evidence. State v. Barrera,
{13} We next address whether, under the circumstances, the trial court properly determined that Defendant’s waiver of rights was voluntary. “In order for a defendant’s waiver of Miranda rights to be constitutionally valid, the waiver must be knowingly and intelligently made.” State v. Fekete,
{14} Defendant argues that under the circumstances as they existed at the time he gave his statement, it was not possible for Defendant to have knowingly and voluntarily waived his Fifth Amendment right to remain silent. Defendant gave his statement during the search of the residence by Detective Carter and eight other officers. We agree with Defendant that the benchmark of whether a Miranda waiver is valid is the absence of government coercion or overreaching. State v. Pisio,
{15} Although Defendant concentrates his argument on an invalid waiver of his Fifth Amendment rights, he also suggests that his statements were not voluntary for many of the same reasons. The prosecution has the burden of showing “the voluntariness of a defendant’s statement by a preponderance of the evidence.” Id. at 298,
Admission of Cocaine as Evidence
{16} Defendant argues that the trial court abused its discretion by admitting the cocaine into evidence because the State failed to prove that the evidence was what the State claimed it to be by a preponderance of the evidence. We review the trial court’s decision to admit or exclude evidence for an abuse of discretion. State v. Woodward,
{17} Defendant claims that the trial court abused its discretion because Forensic Chemist Heather Collins could not account for an approximate one gram discrepancy between the weight of the sample when weighed by Detective Durham and when later weighed by Collins. But such a discrepancy in the chain of custody relates to the strength of the evidence, rather than to its admissibility. Id.
{18} The chain of custody was adequately described in the trial testimony. Sergeant Ragland found the evidence and gave it to Detective Durham. Detective Durham field tested the evidence positive for cocaine, sealed it in an envelope, and maintained it in his presence until he placed it in the police department evidence locker. Prior to placing the cocaine into the evidence locker, Detective Durham weighed the bag containing the cocaine on uncertified-scales to get an approximate weight. The weight was 6.8 grams. Detective Durham sealed the evidence and sent it to the Southern Crime Lab for analysis. Collins removed the evidence from the vault, removed the cocaine from its bag, and weighed it. It weighed 5.82 grams. Collins then performed the required tests on the cocaine which were positive. She replaced the cocaine into the evidence vault for return to the Hobbs Police Department.
{19} Furthermore, the discrepancy in the weight of the cocaine was adequately explained by the differing certification of the scales and the fact that the cocaine was weighed by Detective Durham while it was still in a bag and by Collins when it was out of the bag. The trial court did not abuse its discretion by admitting the cocaine into evidence.
{20} Based upon the foregoing, we affirm Defendant’s conviction.
{21} IT IS SO ORDERED.