Case Information
*1
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: June 25, 2009
Docket No. 31,174
STATE OF NEW MEXICO,
Plaintiff-Petitioner,
v.
JULIEN HOLT WILLIAMSON,
Defendant-Respondent.
ORIGINAL PROCEEDING ON CERTIORARI
Ralph D. Shamas, District Judge
Gary K. King, Attorney General
James W. Grayson, Assistant Attorney General
Santa Fe, NM
for Petitioner
Jones Witt Law Firm
Scott Douglas Jones Witt
Roswell, NM
for Respondent
OPINION
MAES, Justice. In this appeal, the State claims that the Court of Appeals improperly concluded that
the search warrant issued by a district court judge (issuing court) was unsupported by
probable cause, and therefore, improperly affirmed the decision of the subsequent district
court (suppressing court) to suppress evidence seized pursuant to the search warrant.
Specifically, the State argues that the Court of Appeals erroneously: (1) applied a de novo
standard of review to the issuing court’s determination of probable cause; and (2) concluded
that, under the circumstances of the present case, the drug-sniffing dog’s failure to alert to
*2
the presence of narcotics fatally undermined the issuing court’s determination of probable
cause.
State v. Williamson
,
I. FACTS AND PROCEDURAL HISTORY
{2} The affidavit submitted in support of the first search warrant alleged the following facts. On October 25, 2005, Julien Holt Williamson (Defendant) brought a package into a UPS Store located on East College Street in Roswell, New Mexico. Defendant informed the store manager, Jennifer Ary, that he wished to send the package to Jesse Gomez in Brooklyn, New York. Defendant appeared to be nervous, and in response to Ary’s inquiry as to the contents of the package, Defendant stated that “he did not know” what was inside of the box. When Ary informed Defendant that the package would have to be opened to ascertain its contents, Defendant explained that the box contained a book which he was sending to his son. Although Defendant had mailed packages from this UPS Store before, “this was the first time he appeared nervous and stated he did not know what was in his package.” Ary “did not feel right about the package,” and consequently, she opened it after Defendant had left the store. Inside she found a clear plastic bag, which appeared to be vacuum sealed, containing two containers, a Crystal Light cylinder and a Ferrero box, both wrapped in gray duct tape. Ary contacted the Roswell Police Department to report the suspicious package. Sergeant Eric Brackeen, a certified law enforcement officer assigned to the Chaves
County Metro Narcotics Task Force Division of the Roswell Police Department, responded to Ary’s call. Sergeant Brackeen noticed that the “[Crystal] Light container was crunched in, apparently from the bag being vacuum sealed.” He summoned canine handler, Detective Jimmy Preston, and narcotics detection dog, Coro, to inspect the package for the presence of narcotics. Coro sniffed the package, but failed to indicate a positive response for the presence of narcotics. Despite Coro’s failure to alert, Sergeant Brackeen averred that, on the basis of his
professional training and eleven years of law enforcement experience, he knows that “often times narcotics are packaged in unusual containers, wrapped with duct tape, and vacuum sealed, to make the narcotics less detectable by narcotic detection canines,” and additionally, that “narcotics are often mailed to other places using carriers such as UPS.” Accordingly, Sergeant Brackeen believed that probable cause existed to issue a search warrant for the package.
{6} The issuing court issued the search warrant. When Sergeant Brackeen executed the search warrant, he found 1.95 ounces of marijuana inside of the Crystal Light and Ferrero containers. Based on this evidence, Sergeant Brackeen procured a second search warrant to search Defendant’s residence for illegal narcotics and paraphernalia. When the second search warrant was executed, drug paraphernalia was found in Defendant’s home. Thereafter, Defendant was charged by criminal information with possession of marijuana with intent to distribute in violation of NMSA 1978, Section 30-31-22 (2005), and possession of drug paraphernalia in violation of NMSA 1978, Section 30-31-25.1 (2001). {7} Prior to trial, Defendant moved to suppress the marijuana and drug paraphernalia evidence, claiming that it had been obtained “in violation of his constitutional rights to be free from unreasonable search and seizure under the Fourth Amendment [to] the United States Constitution and Article 2, Section 10 of the New Mexico Constitution.” Defendant argued that the marijuana evidence should be suppressed because the affidavit submitted in support of the first search warrant failed to set forth sufficient facts to establish probable cause. Defendant argued that the drug paraphernalia evidence also should be suppressed as fruit of the poisonous tree. The suppressing court granted Defendant’s motion, concluding that “the negative sniff by the detection dog in this case refuted and even eliminated any suspicion that otherwise existed by reason of the pre-warrant occurrences and observations at the UPS store.”
{8}
The Court of Appeals, in a divided opinion, affirmed the decision of the suppressing
court.
Williamson
,
“often times narcotics are packaged in unusual containers, wrapped with duct tape, and vacuum sealed, to make the narcotics less detectable by narcotic detection canines,” adequately explained Coro’s failure to alert. See id. ¶ 9. The Court determined that this statement was not an expression of Sergeant Brackeen’s opinion that duct-taping and vacuum-sealing successfully prevented Coro from being able to detect the odor of narcotics, but rather, was “a description of the practice of drug traffickers who commonly believe (rightly or wrongly) that vacuum-sealing will make narcotics less detectable.” Id. Without a more definite and detailed explanation, the Court concluded that the State had failed to dispel the “strong negative inference arising from Coro’s failure to alert.” Id.
{10}
Even without this negative inference, the Court concluded that the remaining
evidence, although certainly suspicious, was insufficient to establish probable cause. The
Court noted that “the probable cause inquiry should be ‘particularly exacting’ when the
conduct observed by an officer is consistent with lawful activity, and this is so ‘regardless
of an officer’s qualifications and experience.’”
Id.
¶ 10 (quoting
State v. Nyce
, 2006-NMSC-
026, ¶ 14,
majority that “the State has the burden to explain [a canine] alert failure, if it can, and the failure to satisfy that burden ought to be a part of the mix in considering the evidentiary sufficiency for probable cause for a search warrant.” Id. ¶ 18. However, because the record was inadequate in this case to determine what weight, if any, to attribute to Coro’s alert failure, he believed that it should be weighed as a neutral factor. Id. ¶ 24. In light of the deference given “to a magistrate’s decision, and to an officer’s observations, experience, and training,” Judge Sutin concluded that the remaining facts set forth in the affidavit were sufficient to establish probable cause. Id. ¶ 25 (internal quotation marks and citation omitted). Accordingly, he would have upheld the search warrant and denied Defendant’s motion to suppress. We granted the State’s petition for writ of certiorari pursuant to NMSA 1978, Section
34-5-14(B) (1966) and Rule 12-502 NMRA to determine: (1) whether the Court of Appeals
applied the proper standard of review to the issuing court’s determination of probable cause
and (2) the impact, if any, that the canine alert failure had upon the issuing court’s
determination probable cause.
See State v. Williamson
,
II. DISCUSSION
A. Standard of Review We first address the proper standard of review to apply to an issuing court’s
determination that the facts alleged in an affidavit are sufficient to establish probable cause.
The State claims that, pursuant to precedent established by both the United States Supreme
Court and this Court, deference must be shown to an issuing court’s determination of
probable cause.
See, e.g.
,
Illinois v. Gates
,
{14} “The Fourth Amendment to the United States Constitution and [A]rticle II, [S]ection 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.” Id. ¶ 9.
By injecting a neutral magistrate into the process . . . the law provides a layer of protection from unreasonable searches and seizures. By compelling [law enforcement officers] to show to a neutral magistrate facts from which that impartial judicial representative could conclude that probable cause exists to justify [a search], the law enforcement organizations of this state are prevented from allowing the competitive pressures of fighting crime to compromise their judgment about whether or not to carry out a given search.
State v. Gomez
,
10 rights to be free from unreasonable searches and seizures. We begin our analysis with
an examination of the standard of review for the sufficiency of search warrant affidavits
mandated by the Fourth Amendment to the United States Constitution, and then proceed to
consider whether the appellate courts of this state have adopted a more stringent standard of
review under New Mexico law.
Cf. Gomez
,
1. Standard of Review Under the Fourth Amendment to the United States
Constitution
In
Ventresca
, the United States Supreme Court held that affidavits submitted in
support of search warrants “must be tested and interpreted by magistrates and courts in a
commonsense and realistic fashion.”
Ventresca
,
[t]his is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists without detailing any of the underlying circumstances upon which that belief is based. Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.
Id. at 108-09 (internal quotation marks and citations omitted). Thus, under the Fourth Amendment to the United States Constitution, “after-the-fact
scrutiny by courts of the sufficiency of an affidavit should not take the form of
de novo
review. A magistrate’s determination of probable cause should be paid great deference by
reviewing courts.”
Gates
,
warrantless searches, with the hope of relying on consent or some other exception to the Warrant Clause that might develop at the time of the search. In addition, the possession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct, by assuring the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.
Id.
(internal quotation marks and citation omitted). Accordingly, an issuing court’s
determination of probable cause must be upheld “so long as the magistrate had a substantial
basis for . . . conclud[ing] that a search would uncover evidence of wrongdoing, the Fourth
Amendment requires no more.”
Id.
(alteration in original) (internal quotation marks and
citation omitted);
see also Massachusetts v. Upton
,
2. Standard of Review Under New Mexico Law Having concluded that, under the Fourth Amendment to the United States
Constitution, the reviewing court must defer to the issuing court’s determination of probable
cause and uphold the validity of the search warrant if it is supported by a substantial basis,
we next address the proper standard of review under New Mexico law. Defendant claims
that, because this Court and the Court of Appeals previously have reviewed the sufficiency
of search warrant affidavits de novo, the appellate courts of this state have adopted the de
novo standard of review as a matter of state law.
See, e.g.
,
Nyce
,
application of the standards that guide our review of an issuing court’s determination of
probable cause. For example, in
Snedeker
we observed that “[p]robable cause must be based
on substantial evidence,” and delineated the following standard of review: “(1) only a
probability of criminal conduct need be shown; (2) there need be less vigorous proof than
the rules of evidence require to determine guilt of an offense; (3) common sense should
control; (4)
great deference should be shown by courts to a magistrate’s determination of
probable cause
.”
Snedeker
, 99 N.M. at 289-90, 657 P.2d at 616-17 (emphasis added)
(internal quotation marks and citation omitted);
see also State v. Cordova
,
in
Ventresca
, holding that affidavits in support of search warrants “must be tested and
interpreted by magistrates and courts in a commonsense and realistic fashion,” because “[a]
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grudging or negative attitude by reviewing courts toward warrants will tend to discourage
police officers from submitting their evidence to a judicial officer before acting.”
Snedeker
,
determination that an affidavit for a search warrant alleges facts sufficient to constitute
probable cause.”
Nyce
,
review announced in Snedeker . To reconcile the apparent conflict between Snedeker and Nyce , however, we review our case law concerning the sufficiency of search warrant affidavits and the appropriate standard of review. The de novo standard of review applied in Nyce appears to derive from three primary
sources. The first source is
State v. Attaway
,
the district court and this court are engaged in the same exercise: a review of the sufficiency of the affidavits submitted to the magistrate court judge in support of the affidavits in question. Under these circumstances, both the district court and this court must give those affidavits a common sense reading and determine whether the magistrate court judge was entitled to find probable cause.
Id. Accordingly, the Court concluded that the probable cause determination of the suppressing court, as opposed to the issuing court, was not entitled to deference and must be reviewed de novo. Id.
{27}
The third source for the de novo standard of review is New Mexico case law
concerning the constitutionality of searches conducted without a warrant. For example, in
Wisdom
, although the Court of Appeals noted that “the determination of probable cause by
the issuing [court] is entitled to deference,” it also stated that “the ultimate question of
whether the contents of the affidavit are sufficient is a conclusion of law” subject to de novo
review.
Wisdom
,
de novo review applied to questions of law, but less deferential than the substantial evidence
standard applied to questions of fact.
See State v. Koen
,
Probable cause exists when there are reasonable grounds to believe that an offense has been or is being committed in the place to be searched. [ Snedeker ,99 N.M. at 290 ,657 P.2d at 617 ]; [ Gonzales ,2003-NMCA-008 , ¶ 11]. Probable cause is not subject to bright line, hard-and-fast rules, but is a fact-based determination made on a case-by-case basis. See State v. Aull 78 N.M. 607, 612, 435 P.2d 437, 442 (1967) (stating no two cases are precisely alike); People v. Miller ,75 P.3d 1108 , 1113 (Colo. 2003) (en banc) (stating that probable cause analysis “does not lend itself to mathematical certainties or bright line rules”). “The degree of proof necessary to establish probable cause for the issuance of a search warrant ‘is more than a suspicion or possibility but less than a certainty of proof.” [ Gonzales , 2003-NMCA- 008, ¶ 12] (quoting State v. Donaldson ,100 N.M. 111 , 116,666 P.2d 1258 , 1263 (Ct. App. 1983)). When ruling on probable cause, we deal only in the realm of reasonable possibilities, and look to the totality of the circumstances to determine if probable cause is present. State v. Garcia ,79 N.M. 367 , 368,443 P.2d 860 , 861 (1968); see United States v. Basham ,268 F.3d 1199 , 1203 (10th Cir. 2001).
Nyce
,
support the issuing court’s determination of probable cause, and therefore, the search warrant must be upheld.
In the present case, the UPS store manager knew who Defendant was.
He had mailed packages from the store before, but this was the first time he
appeared nervous and stated that he did not know what was in the package.
Several circumstances create more than a reasonable suspicion of criminal
conduct. These include Defendant’s nervousness, his inability or
unwillingness to state what was in the package, his later recollection that a
book was inside when the store manager said that the package would have to
be opened, his statement that he was sending the package to his son when the
addressee’s last name was different from Defendant’s last name, the store
manager’s obvious suspicions, the packaging indicating that Defendant was
likely lying to the store manager, the store manager’s fairly obvious training
and her behavior in regard to suspicious use of common carrier delivery for
drug activity, and the officer’s generally expressed training and experience.
Furthermore, the officer stated that the UPS store manager observed
two containers inside a vacuum sealed bag, each wrapped with duct tape; that
the officer himself observed the bag and also a Crystal Light cylinder
wrapped with gray duct tape and a square Ferrero candy box also wrapped
on the ends with gray duct tape; and that the officer knew from training and
experience that “often times narcotics are packaged in unusual containers,
wrapped with duct tape, and vacuum sealed, to make the narcotics less
detectable by narcotic detection canines” and also that “narcotics are often
mailed to other places using common carriers such as UPS.”
Williamson
,
to the presence of narcotics fatally undermined the issuing court’s determination of probable cause. We agree with Defendant that the “State has the burden to explain an alert failure, if it can, and the failure to satisfy that burden ought to be a part of the mix in considering the evidentiary sufficiency for probable cause for a search warrant.” Williamson , 2008-NMCA- 096, ¶ 18 (Sutin, J., dissenting). In the present case, however, the issuing court reasonably could have found that the State adequately had explained Coro’s failure to alert. Sergeant Brackeen averred that “often times narcotics are packaged in unusual containers, wrapped with duct tape, and vacuum sealed, to make the narcotics less detectable by narcotic detection canines.” On the basis of this evidence, the issuing court reasonably could have inferred that Coro’s failure to alert was attributable to the method of packaging, which masked the odor of any illegal narcotics that might have been present inside of the containers. Because Coro’s failure to alert was inconclusive on the essential question of whether the package contained illegal narcotics and because the facts set forth in the search warrant affidavit otherwise were sufficient to establish probable cause, there was a substantial basis for the issuing court’s determination of probable cause. Lastly, Defendant claims that, pursuant to Nyce , our inquiry must be “particularly
exacting” because Defendant’s conduct was “equally consistent with legal activity.”
See
Nyce
,
III. CONCLUSION We conclude that an issuing court’s determination of probable cause must be upheld
if the affidavit provides a substantial basis to support a finding of probable cause. Because the facts alleged in the search warrant affidavit were sufficient to explain the drug-sniffing dog’s failure to alert to the presence of narcotics and to support a reasonable inference that the package contained illegal narcotics, we uphold the issuing court’s determination of probable cause. Accordingly, we reverse the judgment of the Court of Appeals and remand the present case to the district court for further proceedings. IT IS SO ORDERED.
____________________________________ PETRA JIMENEZ MAES, Justice WE CONCUR:
____________________________________
EDWARD L. CHÁVEZ, Chief Justice
____________________________________
PATRICIO M. SERNA, Justice
____________________________________
RICHARD C. BOSSON, Justice
____________________________________
CHARLES W. DANIELS, Justice
Topic Index for State v. Williamson , No. 31,174
AE Appeal and Error
AE-AR Appellate Review
AE-ST Standard of Review
CT Constitutional Law
CT–FA Fourth Amendment
CT-SU Suppression of Evidence
CA Criminal Procedure
CA-AW Affidavit for Search Warrant
CA-PA Probable Cause
CA-SZ Search and Seizure
Notes
[1] Nothing in this opinion, however, should be construed to undermine our holding in
Nyce
. First, in
Nyce
, we limited our review to a redacted version of the search warrant
affidavit, one in which stale information had been omitted.
Nyce
,