State v. Sanchez

Office of the Director New Mexico
09:34:10 2020.12.09 Compilation
'00'07- Commission

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2020-NMSC-017

Filing Date: July 23, 2020

No. S-1-SC-37555

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

GABRIEL SANCHEZ,

Defendant-Appellee.

INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA
COUNTY
Jason Lidyard, District Judge

Released for Publication December 15, 2020.

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

OPINION

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 Rule 5-211(C) NMRA that a warrant be executed within ten days of
its issuance and 2) excluded several pieces of Rule 11-404(B) NMRA evidence,
including evidence of a fire at Jimerson’s home allegedly set by Sanchez the night
before Jimerson’s death. The State filed an interlocutory appeal pursuant to NMSA
1978, Section 39-3-3(B)(2) (1972) (allowing the State to file an interlocutory appeal of
an order suppressing or excluding evidence), and State v. Smallwood, 2007-NMSC-
005, ¶ 11, 141 N.M. 178, 152 P.3d 821 (holding that the Supreme Court has exclusive
jurisdiction over interlocutory appeals in cases in which the defendant may be
sentenced to life imprisonment). Following oral argument, and to allow the proceedings
below to continue, we issued an order reversing the district court’s suppression of the
evidence from the cell phone and affirming the district court’s exclusion of evidence of
the fire allegedly set by Sanchez. We issue this opinion to explain our holdings.

{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 Rule 5-211(C)’s ten-day time limit. Rule 5-211(C)’s ten-day time limit
applies only to the seizure of the device and not any subsequent data extraction or
review. Because Sanchez’s cell phone had already been seized by the police when the
police obtained the warrant to search the phone, it was not a violation of Rule 5-211(C)
for the police to successfully unlock the phone and extract its contents after the ten-day
time limitation in the rule. Accordingly, we reverse the district court’s suppression of the
evidence obtained from the cell phone. Second, because no admissible evidence
connected Sanchez to the fire at Jimerson’s home, we conclude that the district court
did not abuse its discretion by excluding evidence of the fire.

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
obtained a second search warrant for Sanchez’s phone on December 26, 2018. After
that warrant was issued, Agent Jorgenson filed a return and inventory stating that
NMSP had seized a digital copy of Sanchez’s phone on November 5, 2018, pursuant to
the search warrant obtained on December 26, 2018.

{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 Rule 5-211(C), which
provides that a warrant must be executed within ten days after its issuance. Second,
Sanchez contended that the information in the warrant issued on December 19, 2017,
was stale and did not support probable cause to search his phone. He argued that a
year had passed and the investigation in that time had revealed new facts which should
have been presented in Agent Whittaker’s affidavit in support of the warrant issued on
December 26, 2018. In response, the State’s primary contention was that the warrant
issued on December 19, 2017, was still valid when the data was extracted from
Sanchez’s phone.

{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 Rule 5-211(C) required police to
execute the search warrant within ten days of its issuance. In a written order, the district
court found that police obtained a warrant to search Sanchez’s cell phone on December
19, 2017, and searched that phone when they extracted its data on November 5, 2018.
The district court concluded that, pursuant to Rule 5-211(C), the warrant did not
authorize the search because the search was conducted eleven months after the police
obtained the warrant. Accordingly, the district court concluded that the search of the cell
phone was warrantless and granted Sanchez’s motion to suppress. In this interlocutory
appeal, the State seeks review of the district court’s order suppressing the evidence
extracted from the cell phone.

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 Rule 5-211(C).

{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 Rule 5-211(C), a legal question that we review de novo.
See Allen v. LeMaster, 2012-NMSC-001, ¶ 11, 267 P.3d 806. “When construing our
procedural rules, we use the same rules of construction applicable to the interpretation
of statutes.” Id. “We begin by examining the plain language of the rule as well as the
context in which it was promulgated, including the history of the rule and the object and
purpose.” State v. Aslin, 2020-NMSC-004, ¶ 9, 457 P.3d 249 (internal quotation marks
and citation omitted).

C. Discussion

{13} Rule 5-211(C) provides that

[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 Rule 5-
211(C) when that device is seized or when the data stored on that device is copied on
site.

{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 Rule 5-211(C) requires the extraction of data from the device within
ten days after law enforcement obtains a warrant to search the device would require law
enforcement to obtain a new warrant every time the extraction takes longer than ten
days, potentially many times over the course of an investigation. Such a requirement is

1Only the search warrant issued on December 26, 2018, is in the record before us. However, the parties
agreed in the district court and agree on appeal that the warrant issued on December 19, 2017,
authorized a search of Sanchez’s cell phone.
not necessary or reasonable. See State v. Smith, 2004-NMSC-032, ¶ 10, 136 N.M. 372,
98 P.3d 1022 (“This Court has rejected a formalistic and mechanical statutory
construction when the results would be absurd, unreasonable, or contrary to the spirit of
the statute.”); see also Allen, 2012-NMSC-001, ¶ 11 (noting that rules of statutory
construction apply to the interpretation of rules); Rule 5-101(B) NMRA (providing that
the rules of criminal procedure for the district courts “shall be construed to secure
simplicity in procedure, fairness in administration and the elimination of unjustifiable
expense and delay”).

{17} Recognizing that this is an issue of first impression in New Mexico, the State
urges us to interpret Rule 5-211(C) to be consistent with the analogous federal rule,
Rule 41 of the Federal Rules of Criminal Procedure. See Rule 5-211 comm.
commentary (noting that Rule 5-211 is patterned after Fed. R. Crim. P. 41). Like Rule 5-
211, the federal rule requires that law enforcement execute a warrant within a specified
number of days. Fed. R. Crim. P. 41(e)(2)(A)(i). Unlike Rule 5-211, a provision of the
federal rule specifically addresses warrants authorizing the search of electronically
stored information, providing that “[t]he time for executing the warrant . . . refers to the
seizure or on-site copying of the media or information, and not to any later off-site
copying or review.” Fed. R. Crim. P. 41(e)(2)(B). Committee commentary explains that
the federal rule is based on the practical reality of electronically stored information: “A
substantial amount of time can be involved in the forensic imaging and review of
information. This is due to the sheer size of the storage capacity of media, difficulties
created by encryption and booby traps, and the workload of the computer labs.” Fed. R.
Crim. P. 41 Advisory comm. notes, 2009 amendments. Because of these practical
considerations, the federal rule “acknowledges the need for a two-step process: officers
may seize or copy the entire storage medium and review it later to determine what
electronically stored information falls within the scope of the warrant.” Id.

{18} We recognize that Rule 5-211(C) does not have the explicit language of the
federal rule regarding the search of electronically stored information, but we agree with
the State that these practical considerations are compelling. By seizing an electronic
device, law enforcement takes control of both the device and the data on that device,
and allowing more than ten days to copy and review that data takes into account the
various complications that may arise when attempting to access the contents of the
device. For these reasons, we conclude that for the purposes of Rule 5-211(C) a
warrant to search an electronic device is executed when the device is seized or the data
from the device is copied on site. In other words, a device must be in the custody of
police within ten days after the police obtain a warrant to search that device. The
seizure of a device more than ten days after the issuance of a warrant to search the
device violates Rule 5-211(C), but if the device is seized within the ten day time limit,
any subsequent extraction and analysis does not violate the rule.

{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 Rule 5-211(C). See Carrington, 700
F.App’x at 231-32 (concluding that, where a cell phone was already in the lawful
possession of law enforcement when they obtained a warrant to search the phone, a
six-month delay in searching the phone did not violate Fed. R. Crim. P. 41(e)(2)(B)); see
also United States v. Huart, 735 F.3d 972, 974 & n.2 (7th Cir. 2013) (noting in dicta that
a warrant to search a cell phone was executed for the purposes of Fed. R. Crim. P. 41
when the phone was seized, which occurred before the warrant was issued). Although a
device already in the lawful possession of the police is seized before police obtain a
warrant to search it, the lawfully seized device and its contents are in the custody of
police within the ten days following the issuance of the warrant. As such, the warrant
may be deemed executed within those ten days.

{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 violation of Rule 5-211(C).
Because we conclude that no violation of Rule 5-211(C) occurred, we do not need to
consider whether any such violation would require suppression. See State v. Malloy,
2001-NMCA-067, ¶ 11, 131 N.M. 222, 34 P.3d 611 (explaining that not all violations of
Rule 5-211 require suppression). For the foregoing reasons, we reverse the district
court’s suppression of the evidence obtained from the cell phone. We additionally refer
this matter to our Rules of Criminal Procedure for State Courts Committee to amend
Rule 5-211 to include language consistent with this opinion.

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 Rule 11-404(B). “We review the trial court’s
evidentiary rulings for abuse of discretion.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126
N.M. 438, 971 P.2d 829. “An abuse of discretion occurs when the ruling is clearly
against the logic and effect of the facts and circumstances of the case. We cannot say
the trial court abused its discretion by its ruling unless we can characterize it as clearly
untenable or not justified by reason.” Id. (internal quotation marks and citation omitted).

{22} Rule 11-404(B)(1) provides that evidence of a person’s prior acts “is not
admissible to prove a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.” Under Rule 11-404(B)(2) such
evidence “may be admissible for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
In this case, the State filed a notice of intent to introduce evidence of several of
Sanchez’s prior acts.

{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 Rule 11-404(B).

{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 Rule 5-211(C)
for the police to unlock the phone and extract its contents eleven months after the police
obtained the warrant to search the phone. A warrant to search an electronic device is
executed for the purposes of Rule 5-211(C) when that device is seized, thus any
subsequent extraction or review of the data from the seized device is not subject to Rule
5-211(C)’s ten-day time limit. Second, because the State offered no admissible
evidence connecting Sanchez to the fire, we conclude that the district court did not
abuse its discretion by excluding evidence of that fire.

{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