State v. D Scott ( 2009 )

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellant,
4 v. NO. 29,417 & 29,418
5 (consolidated)
6 DARON SCOTT,
7 Defendant-Appellee,
8 and
9 DURYEA SCOTT,
10 Defendant-Appellee.
11 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
12 Douglas R. Driggers, District Judge
13 Gary K. King, Attorney General
14 Santa Fe, NM
15 Jacqueline R. Medina, Assistant Attorney General
16 Albuquerque, NM
17 for Appellant
18 Albert J. Costales
19 Truth or Consequences, NM
20 for Appellee Daron Scott
1 Jose Coronado
2 Las Cruces, NM
3 for Appellee Duryea Scott
4 MEMORANDUM OPINION
5 VIGIL, Judge.
6 The State appeals the grant of Defendant Daron Scott’s motion to suppress
7 evidence, into which Defendant Duryea Scott joined in district court. [Duryea Scott’s
8 DS 3, ¶ 7] The State claimed that the district court erred in determining that the search
9 warrant, approved telephonically by the magistrate judge, was invalid. The State
10 contended that the warrant was written, having been prepared by the investigative
11 officer; the warrant was read to the magistrate judge; copies of the warrant and
12 inventory were provided to individuals located at the searched properties; and the
13 warrant was filed with the magistrate judge two days after execution of the warrant.
14 [DS 5] This Court’s calendar notice proposed to affirm the district court. The State
15 filed a memorandum stating that it will not oppose affirmance and pointing out certain
16 factual discrepancies in the calendar notice. We affirm.
17 The district court found that the investigator seeking the search warrant was on
18 the telephone with the magistrate judge for between three and seven minutes, during
19 which the investigator reportedly read the entire affidavit for the search warrant and
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1 the statement of facts in support of the warrant. [RP 319-201] The district court found
2 that it was impossible for the investigator to relay to the magistrate judge the entire
3 contents of the affidavit and statement of facts or to “properly review verbally the
4 requirements, criteria and facts” in those documents during a telephone conversation
5 lasting only three to seven minutes. [RP 320] The district court found that it was
6 impossible for the magistrate judge to “properly scrutinize the facts and act as a
7 detached and neutral Magistrate” in order to approve the warrant by telephone. [RP
8 320-21]
9 Our Constitution provides that “no warrant to search any place, or seize any
10 person or thing, shall issue without describing the place to be searched, or the persons
11 or things to be seized, nor without a written showing of probable cause, supported by
12 oath or affirmation.” N.M. Const. art. II, § 10. An affidavit in support of a search
13 warrant is required to be sufficiently detailed so that the magistrate judge can make
14 a determination of probable cause. See State v. Knight, 2000-NMCA-016, ¶ 15, 128
15 N.M. 591, 995 P.2d 1033. A magistrate judge may not simply rubber stamp an
16 officer’s statement that probable cause exists for issuance of a search warrant. State
17 v. Nyce, 2006-NMSC-026, ¶ 9, 139 N.M. 647, 137 P.3d 587. A magistrate judge is
1
References are to the record proper for Duryea Scott, No. 29,418.
3
1 required to make an informed and deliberate determination of probable cause before
2 approving a search warrant. Id. New Mexico rules do not provide for telephonic
3 approval of search warrants. See Rule 5-211 NMRA.
4 As described above, the magistrate judge testified that only “pertinent parts” of
5 the statement were read to him, and that he did not believe the entire document was
6 read to him. [DS 4] We conclude that the district court was correct in determining
7 that a three- to seven-minute telephone conversation was not sufficient to allow the
8 magistrate judge to be informed about the details included in the statement of facts in
9 support of the search warrant, or to properly consider the information before acting
10 in his capacity as a detached and neutral magistrate judge to approve the issuance of
11 a search warrant.
12 To the extent that the State argues that the occupants of the properties received
13 copies of the statement and the warrant, or that the magistrate judge received a copy
14 of the warrant two days after it was executed, we conclude that these arguments refer
15 to occurrences after execution of the warrant and would have no effect on whether the
16 warrant was properly issued in the first place.
17 We affirm the district court’s grant of Defendants’ motion to suppress evidence.
18 IT IS SO ORDERED.
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1
2 MICHAEL E. VIGIL, Judge
3 WE CONCUR:
4
5 RODERICK T. KENNEDY, Judge
6
7 LINDA M. VANZI, Judge
5