March 08, 2011 – State of New Mexico v. Shane R. Vest, No. 28,888

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	March 8, 2011
NO. 28,888
STATE OF NEW MEXICO,
Petitioner-Appellee,
v.
SHANE R. VEST,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY
Donald C. Schutte, District Judge
Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Carlos Ruiz de la Torre, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
WECHSLER, Judge.
{1} 	Defendant Shane Vest appeals his conviction, pursuant to a conditional plea
agreement, for distribution of marijuana and possession of drug paraphernalia.
Defendant appeals specifically from the district court’s denial of his motion to
suppress. He argues that no probable cause existed to issue a warrant to search his
home because the State failed to establish the veracity of its confidential informant.
We hold that the informant’s participation in two controlled purchases of controlled
substances did not sufficiently establish the informant’s veracity and that the
observations of the affiant law enforcement officer of activity consistent with drug
trafficking did not sufficiently corroborate the informant’s observations to justify the
issuance of the warrant. We therefore reverse.
BACKGROUND
{2} 	The parties agree to the relevant facts in this case. On January 7, 2008, officers
executed a search warrant at Defendant’s residence, a green and white camping trailer.
The search warrant was signed by a magistrate judge and contained a supporting
affidavit with the following information:
Affiant [a Village of Logan Police Officer] knows [Defendant’s]
previous address was located at 102 Morningside in Logan, New Mexico
where he lived in the same green and white camper trailer. Affiant has

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observed this residence on four occasions for approximately an hour.
Affiant witnessed as many as seven vehicles and as few as two vehicles
come to the residence and only stay for approximately five minutes.
[Defendant] moved his trailer to the Arrowhead RV Park on [11-1-07]
and Affiant has observed the same type of traffic.
Within the past 48 hours a Region V Drug Task Force confidential
informant was at the residence of [Defendant], 503 Highway 54,
Arrowhead RV Park, Slip 33. 	While there the informant observed
[Defendant] handling a large quantity of marijuana. The marijuana was
packaged in clear sandwich type bags and stored in a clear zip-lock type
bag. The informant described the quantity to be between ¼ pound and
½ pound.
Affiant believes this informant to be credible because the informant has
performed at least two supervised controlled purchases of quantities of
controlled substances. 	The informant is familiar with [m]arijuana, its
appearance and usage, through life experience and previous usage.
{3} 	Upon executing the search warrant, officers found currency, guns, ammunition,
packaged quantities of marijuana, scales, packaging materials, and drug paraphernalia.
Defendant was charged with distribution of marijuana and possession of drug
paraphernalia.
{4} 	Defendant filed a motion to suppress in the district court, arguing that the
informant’s participation in two controlled buys did not establish his veracity.
Defendant asserted that the affidavit lacked the specificity to provide sufficient
information for a magistrate to make an independent determination as to the existence
of probable cause to support the issuance of a warrant.
{5} 	The district court denied the motion to suppress. It specifically found that the

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magistrate could have reasonably concluded that the information was reliable based
on: 	(1) the officer’s personal observations of suspicious behavior at Defendant’s
home; (2) the informant’s capacity as an informant for the Region V Drug Task Force;
(3) the informant’s past illicit activity with controlled substances; (4) the informant’s
personal relationship with Defendant as demonstrated, and; (5) the informant’s
participation in controlled buys that are described as “at least two.” Defendant then
entered a conditional plea, reserving the right to appeal.
STANDARD OF REVIEW AND LEGAL FRAMEWORK
{6} 	“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.” State v. Nyce, 2006-NMSC-026, ¶ 9, 139 N.M. 647, 137
P.3d 587. Probable cause to issue the warrant requires a factual showing “that there
is a reasonable probability that evidence of a crime will be found in the place to be
searched.” 	State v. Gonzales, 2003-NMCA-008, ¶ 12, 133 N.M. 158, 61 P.3d 867.
We note this case involves the search of a dwelling place, an area that is “ordinarily
afforded the most stringent [F]ourth [A]mendment protection.” 	State v. Clark, 105
N.M. 10, 12, 727 P.2d 949, 951 (Ct. App. 1986).
{7} 	A search warrant may be issued when “sufficient facts are presented in a sworn

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affidavit to enable the magistrate to make an informed, deliberate, and independent
determination that probable cause exists.” Gonzales, 2003-NMCA-008, ¶ 11; see also
Rule 5-211 NMRA (describing issuance, contents, execution, return, and probable
cause requirements for search warrants). “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
(internal quotation marks and citation omitted). 	“Thus, the magistrate must have
sufficient facts upon which to conclude that there is a reasonable probability that
evidence of a crime will be found in the place to be searched.” 	Id. 	In making this
determination, we consider solely the information within the four corners of the
affidavit submitted in support of a search warrant. State v. Williamson, 2009-NMSC-
039, ¶ 31, 146 N.M. 488, 212 P.3d 376; see State v. Barker, 114 N.M. 589, 590, 844
P.2d 839, 840 (Ct. App. 1992).
{8} 	With respect to probable cause determinations, our Supreme Court has recently
clarified the applicable standard of review.
Our inquiry focuses on the issuing judge’s conclusion as to
probable cause. 	In this case, that means we look at the magistrate’s
conclusions, not the district court’s. If we conclude that the magistrate’s
conclusions as to probable cause were correct, we uphold those
conclusions regardless of the decision reached by the district court.
State v. Evans, 2009-NMSC-027, ¶ 12, 146 N.M. 319, 210 P.3d 216.

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{9} 	“[A]n issuing court’s determination of probable cause must be upheld if the
affidavit provides a substantial basis to support a finding of probable cause.”
Williamson, 2009-NMSC-039, ¶ 29 (partially overruling all previous case law to the
extent the case applies a de novo rather than substantial basis standard of review).
A reviewing court should not substitute its judgment for that of the
issuing court. Rather, . . . the reviewing court must determine whether
the affidavit as a whole, and the reasonable inferences that may be drawn
therefrom, provide a substantial basis for determining that there is
probable cause to believe that a search will uncover evidence of
wrongdoing.
Id. 	The Court has explained that “the substantial basis standard of review is more
deferential than the de novo review applied to questions of law, but less deferential
than the substantial evidence standard applied to questions of fact.” 	Id. ¶ 30.
Accordingly, “if the factual basis for the warrant is sufficiently detailed in the search
warrant affidavit and the issuing court has found probable cause, the reviewing courts
should not invalidate the warrant by interpreting the affidavit in a hypertechnical,
rather than a commonsense, manner.” Id. (alteration, internal quotation marks, and
citation omitted).
{10} 	In light of the foregoing considerations, we turn to the specifics of this case.
THE VERACITY PRONG OF THE AGUILAR-SPINELLI TEST

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{11} 	With regard to hearsay statements made by informants, in State v. Cordova, 109
N.M. 211, 217, 784 P.2d 30, 36 (1989), our Supreme Court adopted, as a matter of
state constitutional law, the confidential informant test first formulated by the United
States Supreme Court in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United
States, 393 U.S. 410 (1969), overruled in part by Illinois v. Gates, 462 U.S. 213
(1983). This test is primarily aimed at confidential informants. See State v. Dietrich,
2009-NMCA-031, 	¶¶ 	12-13, 	145 	N.M. 	733, 	204 	P.3d 	748 	(noting 	that 	the
identification of an informant by name is a significant factor in determining the
reliability of the information because a “named informant has greater incentive to
provide truthful information . . . than an unnamed or anonymous individual” and
explaining that the strictures of Aguilar-Spinelli are primarily aimed at unnamed
police informers (internal quotation marks and citation omitted)).
{12} 	In adopting the Aguilar-Spinelli test, our Supreme Court specifically rejected
the totality of the circumstances test set forth in Gates. 	See Cordova, 109 N.M. at
217, 784 P.2d at 36. Our appellate courts have explained:
The Aguilar/Spinelli test is designed to ensure that the court, rather
than the police, make the determination that probable cause, based on
reliable information, is present. Thus, the first prong of the test requires
that the affidavit include the factual basis for any conclusions drawn by
the informant to enable the court to perform an independent analysis of
the facts and conclusions. 	The second prong requires that facts be
presented to the court to show either that the informant is inherently
credible or that the information from the informant is reliable on this

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particular occasion. These requirements are often referred to as the basis
of knowledge and veracity (or credibility) tests.
Barker, 114 N.M. at 591, 844 P.2d at 841 (internal quotation marks and citations
omitted). Thus, the allegations of an informant cannot provide probable cause to issue
a search warrant unless both the basis of the informant’s knowledge and the veracity
of the informant are demonstrated. See Cordova, 109 N.M. at 214, 784 P.2d at 33.
{13} 	Defendant does not appear to challenge the basis-of-knowledge prong of the
test but rather solely challenges the veracity of the informant. “Under the veracity
prong, 	the 	affidavit 	must 	set 	forth 	sufficient 	facts 	for 	the 	issuing 	judge 	to
independently determine either the inherent credibility of the informants or the
reliability of their information.” State v. Steinzig, 1999-NMCA-107, ¶ 18, 127 N.M.
752, 987 P.2d 409. In In re Shon Daniel K., this Court explained that:
Reliability of an informant may be established, among other ways,
by showing that: 	(1) the informant has given reliable information to
police 	officers 	in 	the 	past; 	(2) 	the 	informant 	is 	a 	volunteer
citizen-informant; (3) the informant has made statements against his or
her penal interest; (4) independent investigation by police corroborates
informant’s 	reliability 	or 	information 	given; 	and 	(5) 	facts 	and
circumstances disclosed impute reliability.
1998-NMCA-069, ¶ 12, 125 N.M. 219, 959 P.2d 553 (citations omitted); see State v.
Knight, 2000-NMCA-016, ¶ 20, 128 N.M. 591, 995 P.2d 1033 (enumerating ways in
which reliability of an informant may generally be established, including past
performance and independent corroboration); Steinzig, 1999-NMCA-107, ¶¶ 21-24

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(stating that the informant’s credibility may be corroborated by law enforcement’s
investigation and observation); State v. Shaulis-Powell, 1999-NMCA-090, ¶ 13, 127
N.M. 667, 986 P.2d 463 (holding that an anonymous tip was adequately corroborated
by the officers’ visit to the location and observation of plants that appeared, based on
the officers’ experience, to be marijuana).
{14} 	Of the In re Shon Daniel K. factors, only the first and the fourth apply in this
case. 	First, the State concedes that the informant was not a volunteer citizen
informant. 	Second, we disagree with the State that the informant’s statement was
made against penal interest. 	Although the affidavit indicates “[t]he informant is
familiar with [m]arijuana, its appearance and usage, through life experience and
previous usage,” we agree with Defendant that there is nothing in this statement to
suggest that the informant implicated himself in any crime for which he would have
had a reasonable fear of prosecution. See, e.g., Barker, 114 N.M. at 592, 844 P.2d at
842 (reiterating that in order for a statement against penal interest to be used to
establish the credibility of the informant, there must be a nexus between the
informant’s statement against his penal interest and the criminal activity for which
probable cause to search is being established and explaining that past use by an
informant generally will not suffice as the nexus). 	Third, we see nothing in the
affidavit that reasonably imputes credibility or reliability. 	While the district court

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partially based its decision on the fact that the informant was designated as a Region
V Drug Task Force confidential informant, there is nothing in the record indicating
what that designation means or how it is achieved. 	For example, there was no
testimony as to the extent or nature of any screening process for such informants. Nor
do we agree that the details about packaging and storage of marijuana provided by the
informant establish the overall credibility or reliability of the informant. As the State
suggests, those details may be used to help establish the basis-of- knowledge test. Id.
at 591, 844 P.2d at 841. They are not, however, sufficient to establish the informant’s
credibility or reliability.
{15} 	We are therefore left with establishing the credibility or reliability of the
informant through the informant’s providing of past reliable information, through
independent corroboration, or through some other means. 	With regard to the
informant providing past reliable information, Defendant contends that the affidavit
merely contained conclusory assertions, rather than any actual evidence the informant
had provided reliable information in the past. 	To this extent, we agree with
Defendant.
{16} 	By the very nature of the determination of probable cause, the analysis of the
issuing judge addresses the probabilities provided by the facts. 	See Nyce, 2006-
NMSC-026, ¶ 10 (“When ruling on probable cause, we deal only in the realm of

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reasonable probabilities, and look to the totality of the circumstances to determine if
probable cause is present.”). The use of a confidential informant necessarily involves
a degree of risk as to the informant’s veracity. Cf. Barker, 114 N.M. at 591, 844 P.2d
at 841 (stating that the purpose of the Aguilar-Spinelli test is to ensure the reliability
of information used to make a probable cause determination). The mere fact that a
confidential informant has provided reliable information in the past does not
necessarily mean that the informant will do so again. Knight, 2000-NMCA-016, ¶ 20.
However, “[w]e accept past performance as indicia of veracity because of the
probability that the uncertain present result will be the same as in the past.” Id.
{17} 	As to the past performance in this case, the affidavit states that the informant
observed Defendant with a large quantity of marijuana in Defendant’s residence. As
the basis for relying on this observation, that affidavit states that the “[a]ffiant believes
this informant to be credible because the informant has performed at least two
supervised controlled purchases of quantities of controlled substances.” The difficulty
with this statement is that it does not provide information that can assist the magistrate
in weighing the probabilities as to whether the informant is reliable. 	It does not
indicate that the informant provided any information in the past, only that the
informant cooperated with officers while under supervision to make purchases of
controlled substances. 	That is not to say that the informant did not reliably assist

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officers in conducting controlled purchases, but the activity the informant performed
is not the same as that of providing reliable information that officers then used to
purchase 	controlled 	substances. 	Without 	more 	information 	concerning 	the
informant’s activity, the affidavit does not directly bear upon the informant’s previous
reliability in obtaining and relating information about criminal activity.
{18} 	We are mindful that our substantial basis analysis requires that we give
deference to the magistrate’s probable cause determination. Moreover, our case law
recognizes that minimal details can be sufficient to demonstrate a confidential
informant’s reliability. For example, in Cordova, our Supreme Court held that the
affiant’s statement that the confidential informant had provided information in the past
that the affiant found to be true and correct from personal knowledge and
investigation was sufficient to justify a warrant. Cordova, 109 N.M. at 217-18, 784
P.2d at 36-37. In State v. Montoya, 114 N.M. 221, 225, 836 P.2d 667, 671 (Ct. App.
1992), this Court held that the affiant’s statement that the confidential informant had
provided reliable information many times in the past was sufficient to establish the
credibility of the informant. However, we stress again that this case is different. In
Cordova and Montoya, the informants provided information in the past that the affiant
was able to determine was credible or reliable. In this case, the affidavit does not state
that the informant provided any previous information, but only that the informant

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participated in controlled purchases.
{19} 	Nevertheless, even though the affidavit here was not sufficient to establish the
informant’s credibility or reliability based on the informant’s past performance, this
deficiency is not fatal to a probable cause determination if the affidavit otherwise
demonstrates the credibility or reliability of the informant’s information. As stated
in the fourth factor of In re Shon Daniel K., independent corroboration of an
informant’s information can fulfill this need. 1998-NMCA-069, ¶ 12.
{20} 	To justify the issuance of the warrant, the affidavit must demonstrate reasonable
grounds to conclude “(1) that the items sought to be seized are evidence of a crime;
and (2) that the criminal evidence sought is located at the place to be searched.” State
v. Whitley, 1999-NMCA-155, ¶ 5, 128 N.M. 403, 993 P.2d 117 (internal quotation
marks and citation omitted). 	The affidavit, dated January 7, 2008, reported
observations of the informant within the previous forty-eight hours. The informant’s
observations indicated that evidence of a crime could be located at Defendant’s
residence. 	The affiant, a police officer, stated that he had observed Defendant’s
residence on several earlier occasions, four times at its previous location and at least
once on or after November 1, 2007, at its current location. 	The affiant witnessed
multiple vehicles arriving at the residence and staying only for approximately five
minutes. Traffic patterns to and from a defendant’s home are relevant to whether a

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defendant is trafficking controlled substances. See State v. Doe, 103 N.M. 178, 182,
704 P.2d 432, 436 (Ct. App. 1984) (stating that heavy traffic to and from a
defendant’s home supports an inference that the defendant is trafficking drugs).
{21} 	The State contends that the affiant’s observations corroborate the informant’s
credibility or reliability. 	Defendant asserts, to the contrary, that the affiant’s
information does not corroborate the informant’s credibility or reliability because it
was stale information in that it did not pertain to ongoing criminal activities. While
we agree with Defendant that stale information does not provide probable cause for
the issuance of a warrant, we must view the affidavit as a whole in determining its
sufficiency. Whitely, 1999-NMCA-155, ¶ 3. The affiant’s information concerning his
own observations of Defendant’s residence does not, in itself, provide probable cause
for the issuance of the warrant. See Nyce, 2006-NMSC-026, ¶ 14 (stating that mere
suspicion about ordinary, non-criminal activities does not provide probable cause).
However, even though information is not sufficient to provide probable cause does not
mean that it cannot serve as corroborative information of an informant’s credibility
or reliability. 	Certainly, if the affiant had made his observations in the same time
period addressed by the informant, the affiant’s information would corroborate the
informant’s observations and bear upon the informant’s credibility or reliability. See
State v. Donaldson, 100 N.M. 111, 116, 666 P.2d 1258, 1263 (Ct. App. 1983)

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(holding that an affidavit was sufficiently reliable when law enforcement affiant
detailed personal observations and therefore corroborated information from a
confidential informant).
{22} 	But the flaw in the State’s position is that there was no timely corroboration of
the informant’s information. Although the affiant had observed suspicious activity
that was consistent with drug trafficking, and his observations were further consistent
with the informant’s observations, the affiant could not corroborate the reliability of
the informant’s report that Defendant had present possession of marijuana. 	This
information was essential to the probable cause determination because the “privacy
of a home is afforded the highest level of protection by our state and federal
constitutions.” Nyce, 2006-NMSC-026, ¶ 12. If the informant’s report were correct,
we presume that the affiant could have corroborated it by additional surveillance.
However, without it or other present information that corroborated the informant’s
information, the magistrate did not have a substantial basis to conclude that the
informant was reliable.
CONCLUSION
{23} 	We reverse the district court and hold that the affidavit was insufficient to
support a finding of probable cause to issue the warrant.
{24} 	IT IS SO ORDERED.

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________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
__________________________________
CELIA FOY CASTILLO, Chief Judge
__________________________________
JONATHAN B. SUTIN, Judge