STATE OF NEW MEXICO, Plaintiff-Appellant, v. GABRIEL SANCHEZ, Defendant-Appellee.
No. S-1-SC-37555
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
July 23, 2020
Opinion Number: 2020-NMSC-017. Released for Publication December 15, 2020. Interlocutory Appeal From The District Court of Rio Arriba County, Jason Lidyard, District Judge.
Hector H. Balderas, Attorney General
Margaret Jayne Crabb, Assistant Attorney General
John J. Woykovsky, Assistant Attorney General
Santa Fe, NM
for Appellant
Bennett J. Baur, Chief Public Defender
E. Craig Hay, III, Assistant Public Defender
Sydney K.L. West, Assistant Public Defender
Santa Fe, NM
for Appellee
VIGIL, Justice.
{1} Defendant Gabriel Sanchez was indicted for first-degree murder, tampering with evidence, and aggravated burglary in connection with the death of William Jimerson. In two pretrial orders, the district court 1) suppressed evidence consisting of the contents of Sanchez‘s cell phone because the extraction of those contents violated the requirement under
{2} First, we conclude that when a warrant is issued to search an electronic device, that warrant is executed when the device is seized or the data is copied on-site, which must occur within
I. MOTION TO SUPPRESS CELL PHONE EVIDENCE
{3} We first address the State‘s argument that the district court erred by granting Sanchez‘s motion to suppress evidence consisting of the contents of Sanchez‘s cell phone. For the reasons that follow, we agree with the State and reverse the district court‘s suppression of that evidence.
A. Background
{4} The investigation in this case began on December 18, 2017, when Jimerson was found dead in his home from multiple gunshot wounds to the head. New Mexico State Police (NMSP) Agent Joey Gallegos learned that Jimerson had called the police the day before to report a fire at his home that he believed Sanchez had set. Jimerson thought that Sanchez wanted to kill him because of his relationship with Sanchez‘s ex-fiancé. Agent Gallegos spoke to Sanchez‘s ex-fiancé and learned that Sanchez had previously threatened and attacked Jimerson.
{5} Later that day, Santa Clara Tribal Police informed NMSP that Sanchez was in a residence on the Santa Clara Pueblo. NMSP obtained a warrant from Santa Clara Pueblo Tribal Court to search the residence and remove Sanchez from the Pueblo. Pursuant to the search warrant, police seized a cell phone, among other items.
{6} The next day, December 19, 2017, Agent Gallegos obtained a warrant to search Sanchez‘s phone. NMSP Agent Andrew Jorgenson took the cell phone to the Regional Computer Forensic Laboratory (RCFL) to make a digital copy of the phone‘s contents but was unable to bypass the lock code on the phone. Agent Jorgenson then returned the phone to the NMSP evidence vault.
{7} The cell phone remained in the NMSP evidence vault until November 2018, when Agents Gallegos and Jorgenson learned that the technology used to extract data from cell phones at the RCFL had been updated and could potentially bypass the lock code. On November 5, 2018, Agent Jorgenson took the cell phone back to the RCFL and was able to unlock it. He extracted the phone‘s contents and stored them on an external hard drive, which was placed in the NMSP evidence vault along with the cell phone.
{8} In December 2018, NMSP Agent Jesse Whittaker took over the investigation from Agent Gallegos. When Agent Whittaker took over the case, Agent Gallegos told him that he should obtain a warrant to search Sanchez‘s phone. On December 26, 2018, Agent Whittaker filed an affidavit for a new search warrant. In support of the warrant, Agent Whittaker copied Agent Gallegos‘s affidavit and indicated Agent Gallegos as the original affiant. He further stated that officers had been “able to forensically by-pass the password and preserve the evidence from the device” in November 2018, but that the contents had not yet been reviewed. Agent Whittaker
{9} On January 8, 2019, the State filed a motion to continue the trial, mentioning the large number of text and media messages, calls, search logs, and numerous other files recently extracted from Sanchez‘s cell phone. Sanchez subsequently filed a motion to suppress the evidence extracted from his cell phone, raising two arguments. First, Sanchez claimed that the extraction of the data from his cell phone on November 5, 2018, was a warrantless search because it occurred eleven months after the first warrant was issued on December 19, 2017, but before the second warrant was issued on December 26, 2018. Sanchez argued that this violated
{10} At the hearing on the suppression motion, the district court rejected Sanchez‘s probable cause argument and concluded that the affidavits provided probable cause to search the cell phone. The district court instead granted suppression of the contents of the cell phone based on Sanchez‘s argument that
B. Standard of Review
{11} On appeal, there is no dispute that a warrant was required to search Sanchez‘s phone. See Riley v. California, 573 U.S. 373, 401 (2014) (“Our holding . . . is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search[.]“). Additionally, Sanchez did not challenge the seizure of his phone pursuant to the Santa Clara Pueblo warrant or argue that the first warrant to search his phone was invalid for any reason when issued on December 19, 2017. Instead, the only issue before us in the State‘s interlocutory challenge to the district court‘s order is whether the delay in extracting the data from the phone violated the ten-day time limit of
{12} Review of suppression rulings generally “presents a mixed question of law and fact. We review factual determinations for substantial evidence and legal determinations de novo.” State v. Paananen, 2015-NMSC-031, ¶ 10, 357 P.3d 958 (internal quotation marks and citation omitted). In this case, the issues do not turn on factual disputes but instead on the interpretation of
{13}
[a] search warrant shall be executed within ten (10) days after the date of issuance. The officer seizing property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the affidavit for search warrant, a copy of the search warrant, and a copy of the inventory of the property taken or shall leave the copies of the affidavit for search warrant, the search warrant, and inventory at the place from which the property was taken.
{14} Whether the extraction of the data from Sanchez‘s cell phone violated this rule depends on what it means to “execute” a warrant in the context of electronically stored information. Generally, a warrant is executed when the search or seizure authorized by that warrant is conducted. State v. Elam, 1989-NMCA-006, ¶ 18, 108 N.M. 268, 771 P.2d 597; 79 C.J.S. Searches and Seizures § 251 at 358 (2017) (“A search warrant is executed by making the search directed.“). However, no New Mexico case has considered when a warrant to search an electronic device for information stored on that device is executed. For the following reasons, we conclude that a search warrant for information stored on an electronic device is executed for the purposes of
{15} In this case, on December 19, 2017, police sought authority to search Sanchez‘s phone for data stored in the internal and external memory of the phone. Being satisfied that there was probable cause to believe that evidence of a crime would be found on Sanchez‘s cell phone, the judge issued a warrant authorizing police to search the phone.1 Sanchez argues that this warrant was not executed until the police successfully unlocked his phone and extracted the data from it on November 5, 2018—eleven months after the police obtained the warrant.
{16} Such an interpretation of the rule—that a search warrant for an electronic device is not executed until the information on that device is extracted—does not account for the practical realities of searching electronic devices. The extraction of data from an electronic device may be reasonably delayed by months for many reasons, including encryption on the device and backlogs at computer forensics labs. See, e.g., United States v. Carrington, 700 F. App‘x 224, 231-32 (4th Cir. 2017) (noting that the delay of six months in searching a phone was due, in part, to the need to send the phone to “a special FBI unit for examination” because of physical damage to the phone); United States v. Syphers, 426 F.3d 461, 463-64, 469 (1st Cir. 2005) (noting that the prosecution moved for an additional year on a warrant to search a computer because of the need to decrypt 64,000 images and because of “a backlog in computer crimes investigations“); Commonwealth v. Knoble, 188 A.3d 1199, 1202-03 (Pa. Super. Ct. 2018) (explaining that a second extraction of data from a cell phone revealed data not revealed in the first extraction because the software used to extract the data had been updated in the nine months between the two extractions); State v. Grenning, 174 P.3d 706, 710-11, 714 (Wash. Ct. App. 2008) (noting that the police officer had to use “specialized software in order to complete his search” and that a delay of more than a year was reasonable because it was not realistic to require police to review the large amount of information on the devices within the ten-day time limit under the state rule). To conclude that
{17} Recognizing that this is an issue of first impression in New Mexico, the State urges us to interpret
{18} We recognize that
{19} When a device is already in lawful police custody when the police obtain a warrant to search the device, the extraction of data from the device more than ten days after police obtain the warrant does not violate
{20} In this case, Sanchez‘s cell phone had already been seized pursuant to the December 18, 2017, Santa Clara Pueblo search warrant and was in the custody of the police on December 19, 2017, when the police obtained the warrant to search the phone. The fact that the police were unable to successfully unlock the phone and extract its contents until eleven months later was not a
II. RULE 11-404(B) EVIDENCE
{21} The State also challenges the district court‘s ruling that evidence of a fire at Jimerson‘s home was not admissible under
{22}
{23} Relevant to this appeal, the State sought to introduce evidence of a fire at Jimerson‘s home allegedly set by Sanchez in the early morning of December 18, 2017. The district court noted that the only evidence offered by the State connecting Sanchez to the fire were statements allegedly made by Jimerson to a police officer, which the State explained it would introduce into evidence through that officer‘s testimony. The district court concluded that such testimony would be inadmissible as hearsay and a violation of Sanchez‘s right of confrontation. Without this evidence, the district court found that there was no evidence that Sanchez had anything to do with the fire. Without evidence that Sanchez set the fire, the district court concluded that evidence of the fire had no permissible purpose under
{24} The State challenges this determination by the district court, arguing that the district court did not consider all the evidence before it. However, the State does not specify what evidence the district court failed to consider and does not challenge the district court‘s conclusion that testimony from the police officer regarding Jimerson‘s alleged statements would be inadmissible. Under these circumstances, we cannot say that the district court‘s exclusion of the evidence of the fire at Jimerson‘s home was unreasonable or “clearly against the logic and effect of the facts and circumstances of the case.” Rojo, 1999-NMSC-001, ¶ 41. Accordingly, we conclude that the district court did not abuse its discretion, and we affirm the exclusion of evidence of the fire.
III. CONCLUSION
{25} This opinion explains our order reversing the district court‘s suppression of evidence obtained from Sanchez‘s cell phone and affirming the district court‘s exclusion of evidence of a fire allegedly set by Sanchez. First, we reversed the district court‘s suppression of the cell phone evidence because it was not a violation of
{26} IT IS SO ORDERED.
BARBARA J. VIGIL, Justice
WE CONCUR:
MICHAEL E. VIGIL, Chief Justice
JUDITH K. NAKAMURA, Justice
C. SHANNON BACON, Justice
DAVID K. THOMSON, Justice