State v. Sabeerin ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _____________
Filing Date: August 11, 2014
Docket Nos. 31,412 and 31,895 (consolidated)
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
BOBACK SABEERIN,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Jacqueline D. Flores and Kenneth H. Martinez, District Judges
Gary K. King, Attorney General
Margaret McLean, Assistant Attorney General
Santa Fe, NM
for Appellee
Jorge A. Alvarado, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
ZAMORA, Judge.
{1} The issues in this appeal stem from two trials in which Defendant Boback Sabeerin
was convicted of crimes related to his involvement in a vehicle identification number (VIN)-
switching operation. In the first trial, Court of Appeals No. 31,412, Defendant was tried
together with his co-conspirator, Anjum Tahir (Tahir). In the second trial, Court of Appeals
No. 31,895, Defendant was tried alone. The two trials generated two appeals that we
consolidate into this Opinion.
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{2} Defendant makes a number of arguments in support of reversal. We hold that
Defendant’s motions to suppress in both No. 31,895 and in No. 31,412 should have been
granted. The affidavit in support of a search warrant for Defendant’s place of business at 112
General Arnold in Albuquerque, New Mexico, failed to establish probable cause as required
by the Fourth Amendment to the United States Constitution and Article II, Section 10 of the
New Mexico Constitution. As a result, we reverse.
BACKGROUND
{3} The investigation that led to the charges and subsequent convictions at issue in these
appeals began when Tahir was arrested for attempting to steal an automobile. When Tahir
was arrested, he was driving an automobile registered in his name, but bearing the VIN of
a different automobile—one that had been purchased by Tahir at an insurance auction as a
“complete burn and totaled” vehicle. Detective Timothy Fassler of the Albuquerque Police
Department’s auto theft unit learned that the true VIN of the vehicle that Tahir was driving
had been reported stolen two months before Tahir’s arrest. Detective Fassler’s further
investigation revealed that Tahir had purchased a large number of totaled vehicles at auction.
{4} Having received a tip that Tahir “did business” at a combined structure located at 108
and 112 Rhode Island (the Rhode Island property) in Albuquerque, Detective Fassler started
surveillance at that property. From his surveillance, Detective Fassler concluded that Tahir
had two vehicles—one that Detective Fassler concluded must have been stolen and its VIN
altered and another of the same make, purchased at auction, that provided the VIN for its
stolen counterpart. A search warrant was issued for the Rhode Island property on August 19,
2009, at 2:13 p.m., and a search confirmed the factual basis of Detective Fassler’s search
warrant affidavit and revealed other stolen and VIN-altered vehicles. During his
investigation into Tahir’s activities, Detective Fassler “learned” that Tahir also “did
business” at 112 General Arnold (the General Arnold property) in Albuquerque, so he sent
a unit to watch that property. Tahir was seen there and taken into custody. Because Detective
Fassler observed vehicles at the General Arnold property which he described as
“suspicious,” he sought a search warrant for that property as well.
{5} On August 19, 2009, at 4:40 p.m., a search warrant was issued for the General Arnold
property, and detectives proceeded to search the property. Defendant, the lessee of the
property, arrived and agreed to speak with Detective Fassler. Detective Fassler read
Defendant his Miranda rights, interviewed Defendant about the stolen and VIN-switched
vehicles on his property, and Defendant gave a statement implicating Tahir and himself in
a car theft and VIN-switching operation. Further, a search of the General Arnold property
revealed a number of stolen vehicles, as well as evidence of a car theft and VIN-switching
operation.
{6} On October 1, 2009, Defendant was indicted in No. 31,412. Similar charges were
filed against Tahir, and the cases were joined. A jury trial was held and Defendant was found
guilty. Based on the same investigation that led to the charges in No. 31,412, Defendant was
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indicted in No. 31,895. A jury trial was also held in that case and Defendant was found
guilty. Defendant appeals from his convictions in both cases. Because we hold that
Defendant’s motions to suppress should have been granted, and reverse on that basis, we do
not reach his remaining arguments.
The Search Warrant Affidavit Did Not Establish Probable Cause
{7} Defendant argues that the district court erred in denying his motions to suppress the
evidence obtained as a result of the search of the General Arnold property. Defendant
contends that the affidavit for the search warrant did not provide sufficient probable cause
or specificity to support issuance of the search warrant, thereby rendering the search warrant
invalid. Defendant attacks the affidavit for the search warrant on three bases. He argues that
improper hearsay from an unknown source led the affiant, Detective Fassler, to believe that
Tahir “also did business at 112 General Arnold.” He also argues that Detective Fassler’s
“assertion that there were ‘several suspicious vehicles’ at” the General Arnold property was
insufficient to “establish probable cause to believe that evidence of criminal activity would
be found there.” He argues further that the search warrant affidavit was too broad in its
description of the parameters of the search. We agree with all three arguments.
Probable Cause
{8} “The Fourth Amendment to the United States Constitution and Article II, Section 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. Williamson, 2009-NMSC-039, ¶ 14, 146 N.M. 488, 212 P.3d 376 (alterations,
internal quotation marks, and citation omitted). In McDonald v. United States, 335 U.S. 451,
455 (1948), Justice William O. Douglas explained the importance of the warrant
requirement:
We are not dealing with formalities. The presence of a search warrant
serves a high function. Absent some grave emergency, the Fourth
Amendment has interposed a[n issuing judge] between the citizen and the
police. This was done not to shield criminals nor to make the home a safe
haven for illegal activities. It was done so that an objective mind might weigh
the need to invade that privacy in order to enforce the law.
“Probable cause to search a specific location exists when there are reasonable grounds to
believe that a crime has been committed in that place, or that evidence of a crime will be
found there.” State v. Evans, 2009-NMSC-027, ¶ 10, 146 N.M. 319, 210 P.3d 216.
{9} A search warrant may only issue “on a sworn written statement of the facts showing
probable cause for issuing the warrant.” Rule 5-211(A)(4) NMRA. An affidavit in support
of a search warrant “must contain sufficient facts to enable the issuing [judge] independently
to pass judgment on the existence of probable cause.” Williamson, 2009-NMSC-039, ¶ 30
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(internal quotation marks and citation omitted); see also State v. Knight, 2000-NMCA-016,
¶ 15, 128 N.M. 591, 995 P.2d 1033 (“Affidavits supporting search warrants must be
sufficiently detailed so that the analyzing court can make a probable cause determination.”),
holding limited by Williamson, 2009-NMSC-039, ¶ 29; see also State v. Gonzales, 2003-
NMCA-008, ¶ 12, 133 N.M. 158, 61 P.3d 867 (stating that probable cause to issue a 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”), holding limited by Williamson, 2009-NMSC-039,
¶ 29.
{10} Detailed search warrant affidavits “must show: (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.” Evans, 2009-NMSC-027, ¶ 11 (internal quotation marks and citation omitted).
Additionally, search and seizure is only lawful where the search warrant affidavit sets forth
a factual basis establishing “a sufficient nexus between (1) the criminal activity, and (2) the
things to be seized, and (3) the place to be searched.” State v. Gurule, 2013-NMSC-025, ¶
15, 303 P.3d 838 (internal quotation marks and citation omitted).
{11} There is no bright-line test for determining probable cause. Evans, 2009-NMSC-027,
¶ 11. Probable cause does not have to be based on absolute factual certainty, but it must be
based on “more than a suspicion or possibility.” Id. (internal quotation marks and citation
omitted). “[A] mere suspicion that the objects in question are connected with criminal
activity will not suffice.” Gurule, 2013-NMSC-025, ¶ 14 (citing 2 Wayne LaFave, et. al.,
Search and Seizure: A Treatise on the Fourth Amendment § 3.7(d), at 414 (5th ed. 2012));
see also Nathanson v. United States, 290 U.S. 41, 47 (1933) (finding that a search warrant
was improperly issued where the sworn affidavit was insufficient where it contained a mere
affirmance of suspicion or belief by the affiant without setting forth the supporting facts or
circumstances).
{12} “ ‘[P]robable cause’ shall be based upon substantial evidence.” Rule 5-211(E); see
also State v. Haidle, 2012-NMSC-033, ¶ 11, 285 P.3d 668 (same). “[T]he 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.”
Williamson, 2009-NMSC-039, ¶ 30. “This standard, however, does not preclude the
reviewing court from conducting a meaningful analysis of whether the search warrant was
supported by probable cause, but rather precludes the reviewing court from substituting its
judgment for that of the issuing judge[.]” Gurule, 2013-NMSC-025, ¶ 16 (internal quotation
marks and citation omitted). Hence, “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.” Williamson, 2009-NMSC-039, ¶ 30
(alteration, internal quotation marks, and citation omitted).
{13} Any information that was not provided to the issuing judge at the time the search
warrant affidavit and warrant were presented to him cannot be considered by the reviewing
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court in assessing the validity of the warrant. “[I]n evaluating a probable cause
determination, the reviewing court must focus on the issuing judge’s determination regarding
the information contained in the four corners of the [search warrant] affidavit.” Gurule,
2013-NMSC-025, ¶ 17; see also Williamson, 2009-NMSC-039, ¶ 31 (noting that the
reviewing court must consider only the information contained within “the four corners of the
search warrant affidavit,” as well as the affidavit as a whole). “All direct and circumstantial
evidence alleged, as well as all reasonable inferences to be drawn from those allegations,
should be considered.” State v. Snedeker, 1982-NMSC-085, ¶ 24, 99 N.M. 286, 657 P.2d
613. As the reviewing court, we are required to give deference to the issuing court’s
determination of probable cause and should not substitute our judgment for that court. Id.
¶ 22. Our analysis is therefore focused at the time the affidavit was presented to the issuing
judge and with only the information contained within the affidavit at that time.
The Search Warrant Affidavit’s Content
{14} On August 19, 2009, Detective Fassler obtained two search warrants. First, he
obtained a warrant to search the Rhode Island property, which he had connected to Tahir
through his investigation and his surveillance of the Rhode Island property. The affidavit in
support of the Rhode Island property warrant explains that police began investigating Tahir
when he was apprehended for auto theft. The search warrant affidavit goes on to explain that
at the time Tahir was arrested, he was driving a stolen truck that had been VIN-switched
with a similar truck which had been totaled and sold to Tahir at an auction in Arizona.
{15} The search warrant affidavit details Detective Fassler’s subsequent investigation into
Tahir’s VIN-switching operation, including internet searches revealing several totaled
vehicles bought at auction and a tip that Tahir was doing business at the Rhode Island
property. In the search warrant affidavit, Detective Fassler describes how, after receiving a
tip regarding the Rhode Island property, he began surveillance there which revealed two
Hummer vehicles; one red totaled Hummer SUV that Tahir had purchased at auction, and
a second blue Hummer truck, which was registered to Tahir using the totaled red Hummer
SUV’s VIN. Based on Tahir’s arrest for auto theft, the tip that Tahir was doing business at
the Rhode Island property, and the discovery of the apparently VIN-switched Hummers at
the Rhode Island property, Detective Fassler obtained the Rhode Island property search
warrant.
{16} After executing the Rhode Island property search warrant and confirming the
presence of stolen and VIN-switched vehicles there, Detective Fassler sought a search
warrant for the General Arnold property. The facts in the search warrant affidavit supporting
the search warrant application for the General Arnold property appear to have been copied
directly from the Rhode Island property search warrant affidavit. The information is identical
except for the description of the General Arnold property, the sentence identifying and
describing the vehicles visible through the fence, and three sentences added at the end of the
affidavit. As a result, the General Arnold property search warrant affidavit contains all of the
detailed factual information which was used to establish probable cause to search the Rhode
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Island property, but relatively few facts related to the General Arnold property. The only
additional facts pertaining to the General Arnold property are:
There are numerous vehicles visible through the fence that have been, or are
being dismantled. Also cars with no damage at all are visible.
....
During the investigation [into Tahir’s suspected criminal activity at the
Rhode Island property], [Detective Fassler] learned that . . . Tahir also did
business at 112 General Arnold. . . . [Detective Fassler] sent a unit to watch
that [property] and [Tahir] was taken into custody walking around that
business. Several suspicious vehicles can also be seen on that lot.
We must determine whether this language, within the four corners of the affidavit for the
General Arnold property, provides sufficient facts upon which to conclude that there was a
reasonable probability connecting Tahir’s criminal activity at the Rhode Island property to
the General Arnold property. We conclude that it does not.
{17} The State argues that against the backdrop of the investigation and search of the
Rhode Island property, the information leading police to the General Arnold property,
Tahir’s presence there, and the presence of “suspicious vehicles” on the premises,
collectively support an inference that further evidence of Tahir’s auto theft and VIN-
switching operation would be found at the General Arnold property. We disagree.
{18} The question before us is whether there are sufficient underlying circumstances in
the General Arnold property search warrant affidavit from which the issuing judge could
conclude that the information learned by Detective Fassler, no matter the source, was
credible or reliable. The General Arnold property search warrant affidavit does not contain
detailed facts that support such an inference. Cf. State v. Dietrich, 2009-NMCA-031, ¶¶ 14,
23, 145 N.M. 733, 204 P.3d 748 (holding that the search warrant affidavit contained
sufficient information regarding the investigating detective’s sources of information,
including information from informants and from investigation to support a probable cause
determination). While we understand that during the course of his investigation of the Rhode
Island property Detective Fassler learned that Tahir did business at the General Arnold
property, the affidavit is completely silent regarding the source and substance of such
information. Detective Fassler does not specify, within the affidavit, how he learned of this
information, nor did he explain the content of the information learned. More questions have
been raised than answers have been provided. Was this information such that Detective
Fassler could provide as first-hand knowledge? Was this information something he was told
by another person, did he get it from documentation or other type of evidence that led him
to determine that Tahir was engaging in the same criminal activity at both locations? It is
unclear whether the information was obtained through a tip, as Defendant suggests, or
whether it was obtained as a result of Detective Fassler’s investigation. The search warrant
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affidavit does not indicate whether police conducted any investigation into a possible VIN-
switching operation at the General Arnold property. Cf. State v. Trujillo, 2011-NMSC-040,
¶ 28, 150 N.M. 721, 266 P.3d 1 (holding that details of the police investigation contained in
the search warrant affidavit were sufficient to establish a factual basis for the probable cause
determination).
{19} It is a concern that we cannot determine whether the source of this information
learned by Detective Fassler is reliable or credible. See Rule 5-211(E) (stating there must be
“a substantial basis for believing the source of the hearsay to be credible and . . . that there
is a factual basis for the information furnished”); see also State v. Cordova, 1989-NMSC-
083, ¶ 17, 109 N.M. 211, 784 P.2d 30 (holding that a two-prong test for evaluating whether
hearsay information contained in an affidavit for search warrant is sufficient to establish
probable cause under the New Mexico Constitution). There is insufficient information before
the issuing judge to determine whether the substance or source of Detective Fassler’s
information is credible or reliable. There is also insufficient information before the issuing
judge to determine whether the circumstances by which Detective Fassler, or his source,
obtained this information, demonstrated the probability that the criminal activity taking place
at the Rhode Island property was also taking place at the General Arnold property.
{20} It is also necessary to address whether there are sufficient underlying circumstances
in the search warrant affidavit from which the issuing judge could conclude that the
“suspicious” vehicles were reasonable grounds to believe that a crime had been committed
at the General Arnold property or that evidence of a crime would be found there. Evans,
2009-NMSC-027, ¶ 10. The search warrant affidavit states that “suspicious vehicles” were
observed on the premises. In describing the property, it does not explain why the vehicles
were suspicious, other than to say that some of the vehicles looked like they were being
dismantled and some did not. Cf. Williamson, 2009-NMSC-039, ¶ 32 (upholding a search
warrant because the facts describing a suspicious package were sufficiently detailed to
support the issuing court’s determination of probable cause).
{21} Additionally, we note that where, as here, the facts provided in the search warrant
affidavit only established conduct consistent with lawful activity, our inquiry should be
“particularly exacting.” State v. Nyce, 2006-NMSC-026, ¶ 14, 139 N.M. 647, 137 P.3d 587,
limited on other grounds by Williamson, 2009-NMSC-039, ¶ 29. See Nyce, 2006-NMSC-
026, ¶¶ 13-14 (holding that the purchase of tincture of iodine and hydrogen peroxide at
multiple stores in a hurried manner is equally consistent with lawful activity and alone does
not establish probable cause); State v. Anderson, 1988-NMCA-033, ¶ 16, 107 N.M. 165, 754
P.2d 542 (holding that facts consistent with a drug courier profile are insufficient in
themselves to establish probable cause, because they “are generally descriptive of hundreds
of innocent persons traveling through New Mexico on the interstate every day”).
{22} The Nyce case presents an analogous situation where the observation of suspicious
activity was insufficient to establish that it was reasonably probable that there was criminal
activity occurring at the location identified. 2006-NMSC-026. In Nyce, the defendant
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purchased multiple items at different stores. These items were ingredients used to make
methamphetamine, but could also be used for legal purposes. Id. ¶ 2. She attempted to use
a self-pay register. Id. She had a hurried pace. Id. ¶ 3. She purchased more items at another
store and then dropped everything off at her boyfriend’s home. Id. ¶ 4. Affiant noted that in
his experience persons who purchased ingredients for methamphetamine buy the items in
more than one store to avoid detection by law enforcement. Id. ¶ 3. Affiant suspected the
boyfriend was involved in the manufacturing of methamphetamine. Id. ¶ 4. The Court
concluded that these suspicious activities were insufficient to establish that it was any more
or less probable that the defendant would use them for an illicit purpose. Id. ¶ 28. Thus, the
affidavit failed to establish probable cause to support the issuance of a search warrant for the
boyfriend’s house. See id.
{23} In State v. Sansom, 1991-NMCA-103, 112 N.M. 679, 818 P.2d 880, overruled on
other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110, this Court
concluded that there was no probable cause to search a trailer where the affidavit in support
of a search warrant recounted that the truck used during the commission of a crime and was
believed to have been carrying the weapon used in the crime, was found parked in front of
the trailer within twenty-four hours after the commission of the crime. Id. ¶¶ 2-3. There were
insufficient facts in the search warrant affidavit to show that the suspect resided in the trailer
or that evidence of the crime could be found in the trailer. Id. ¶¶ 14-15.
{24} While the facts here may seem suspicious to police familiar with Tahir and the
investigation into the Rhode Island property, they are also consistent with innocent, lawful
activity. We conclude that the facts alone may be sufficient to arouse suspicion that the
General Arnold property was connected to Tahir’s criminal endeavors, but are insufficient
to establish the reasonable probability that criminal activity was taking place at the General
Arnold property, or that evidence of a crime would be found there.
{25} To hold that the extensive concentrated details of the Rhode Island property affidavit
is a sufficient reasonable inference to support the issuance of a search warrant for the
General Arnold property dodges the protections set forth by the United States and New
Mexico Constitutions. Again, a mere affirmance of a suspicion or belief by affiant that the
objects in question are connected with criminal activity is insufficient to establish probable
cause. Gurule, 2013-NMSC-025, ¶ 14; see Nathanson, 290 U.S. at 47; Evans, 2009-NMSC-
027, ¶ 11.
Affidavit’s Concluding Paragraph
{26} Defendant also argues that the warrant does not describe with particularity the things
to be searched or seized. The concluding paragraph of the affidavit for search warrant states:
Based on the above information, and due to the circumstances, the Affiant
respectfully requests this search warrant be granted in order to examine the
scene for any and all evidence which may lead investigators to the
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offender(s) and or possible witnesses in this case under the auspices of the
District Court, County of Bernalillo, State of New Mexico.
(Emphasis added.) The Fourth Amendment to the United States Constitution requires that
a search warrant particularly describe the “things to be seized.” Article II, Section 10 of the
New Mexico Constitution requires that the search warrant must describe the “things to be
seized.” “The purpose of the particularity requirement is to prevent general searches.” State
v. Light, 2013-NMCA-075, ¶ 22, 306 P.3d 534; see also Voss v. Bergsgaard, 774 F.2d 402,
404 (10th Cir. 1985) (stating that “[t]he particularity requirement ensures that a search is
confined in scope to particularly described evidence relating to a specific crime for which
there is demonstrated probable cause”). There must be a sufficient nexus between the
evidence law enforcement is looking for and the particular place being searched.
{27} In our recent opinion in Light, we concluded a search warrant was impermissibly
broad when it allowed law enforcement to search “all persons” located within a theater
known for illegal substances and the defendant’s only connection to any crime was her
presence at a public event where the illegal activity was taking place. 2013-NMCA-075, ¶¶
1-2. The Light parties agreed that there was probable cause to search the defendant and that
law enforcement was justified in entering and searching the premises for evidence of drugs
and drug paraphernalia. Id. ¶ 23. However, the disagreement was with the validity of an “all
persons” warrant. Id. ¶¶ 24-25.
{28} There is no question that the search warrant and supporting affidavit are clear about
the place to be searched, the General Arnold property. The problem is with the all
encompassing authorization given to law enforcement officers to search for and seize
everything and anything that they the officers themselves determine “may lead investigators
to the offender(s) and or possible witnesses” in the case. This warrant is therefore invalid
as an impermissible general warrant.
{29} Accordingly, we conclude that the General Arnold property search warrant was
invalid for lack of probable cause and as an impermissible general warrant. The
comprehensive information pertaining to the Rhode Island property and the morsels of
flawed information attributable to the General Arnold property fall short of showing the
required nexus between Tahir and his alleged criminal activity at the Rhode Island property
and Tahir and similar alleged criminal activity at the General Arnold property. See Haidle,
2012-NMSC-033, ¶ 36 (concluding that the facts included in the search warrant affidavit
amounted to “bits and pieces of circumstantial . . . content . . . [which] fail[ed] to provide
the substantial evidence required for the [judge] to find probable cause”). We reverse and
remand for proceedings consistent with this Opinion.
{30} IT IS SO ORDERED.
____________________________________
M. MONICA ZAMORA, Judge
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I CONCUR:
____________________________________
MICHAEL E. VIGIL, Judge
JONATHAN B. SUTIN, Judge (dissenting).
SUTIN, Judge (dissenting).
{31} I respectfully dissent.
{32} In reviewing a challenge to a search warrant, we do not substitute our judgment for
that of the issuing court. Trujillo, 2011-NMSC-040, ¶ 17. Rather, looking at the affidavit
as a whole, while considering the reasonable inferences that may be drawn from it, as well
as the direct and circumstantial evidence alleged, we must determine whether it provides a
“substantial basis for determining that there is probable cause to believe that a search will
uncover evidence of wrongdoing.” Id. ¶¶ 17, 19 (internal quotation marks and citation
omitted). “Probable cause to search a specific location exists when there are reasonable
grounds to believe that a crime has been committed in that place[] or that evidence of a crime
will be found in that location.” Id. ¶ 16 (alteration, internal quotation marks, and citation
omitted). Because the relevant inquiry is whether the warrant-issuing court’s determination
of probable cause was supported by a substantial basis in the affidavit, we limit our review
to “the information contained in the four corners of the affidavit.” Gurule, 2013-NMSC-
025, ¶¶ 16-17. If the affidavit provides a substantial basis to support a finding of probable
cause, the issuing court’s determination must be upheld. Id. ¶ 16. “When ruling on probable
cause, we deal only in the realm of reasonable possibilities, and look to the totality of
circumstances to determine if probable cause is present.” Williamson, 2009-NMSC-039,
¶ 31 (internal quotation marks and citation omitted).
{33} The majority places no significance on or relevance as to that part of the affidavit for
the General Arnold property that recites the information in the Rhode Island property
affidavit. The affidavit for the General Arnold property contained the same information that
was in the Rhode Island property affidavit. The court issuing the General Arnold property
search warrant had that information before it. The court’s careful reading of the affidavit
would provide reasonable inferences to support issuance of the search warrant. With the
information contained in the affidavit for the General Arnold property relating to the Rhode
Island property affidavit and the remainder of the information contained in the General
Arnold property affidavit, I conclude that there existed probable cause to issue the General
Arnold property search warrant.
{34} The “tip” received and the investigation conducted by Detective Fassler were
rendered credible from the information Detective Fassler obtained from the Rhode Island
property investigation combined with his independent observation of the General Arnold
property. Detective Fassler had probable cause to seek a search warrant the moment he saw
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Tahir at the General Arnold property with the same sort of suspicious vehicles in sight that
he discovered in his investigation of Tahir’s activities at the Rhode Island property.
{35} The majority’s view that the search warrant and affidavit too broadly authorized the
executing officers to search and seize “everything and anything” conducive to the
investigation is based on an isolated view of the affidavit’s concluding paragraph. Majority
Op. ¶ 28. Viewed within the context of the entire affidavit, an officer would reasonably
discern the items to be seized under the warrant. See United States v. Kuc, 737 F.3d 129,
133 (1st Cir. 2013) (declining to read a single clause of a warrant in isolation, and
recognizing that “a warrant’s language must be read in context, such that the general tail of
the search warrant will be construed so as not to defeat the particularity of the main body of
the warrant” (internal quotation marks and citation omitted)); United States v. Conley, 4 F.3d
1200, 1208 (3d Cir. 1993) (“[T]he phrases in a search warrant must be read in context and
not in isolation.”).
{36} In the opening paragraphs of his affidavit, Detective Fassler stated that he had reason
to believe that the following items were concealed at the General Arnold property:
“stolen/altered vehicles[, v]ehicles with vin plates removed, [t]ools to take and alter vehicles,
documentation of altering/changing vehicles[, r]emoved vin plates, [and] NADER labels[]
to change and alter stolen vehicles[’] identities.” The affidavit included details regarding
Detective Fassler’s investigation into Tahir’s VIN-switching operation at the Rhode Island
property, and the fact that surveillance of the General Arnold property revealed an
apparently similar operation. Against that backdrop, the affidavit concluded: “Based on the
above information, and due to the circumstances, the Affiant respectfully requests this search
warrant be granted in order to examine the scene for any and all evidence which may lead
investigators to the offender(s) and or possible witnesses in this case[.]” Read in its entirety,
the affidavit, which was attached to and incorporated by the warrant would permit an officer
reading it to reasonably know that the items to be seized were those items particularly related
to the at-issue VIN-switching operation, in particular the tools-of-the-trade enumerated in
the initial paragraphs of the affidavit. See State v. Hinahara, 2007-NMCA-116, ¶ 9, 142
N.M. 475, 166 P.3d 1129 (stating that the test for particularity is whether the warrant would
allow an officer reading it to reasonably discern the place to be searched and the items to be
seized); State v. Steinzig, 1999-NMCA-107, ¶¶ 37-39, 127 N.M. 752, 987 P.2d 409
(rejecting the defendant’s lack-of-particularity argument where the items “to be searched and
seized were described with sufficient particularity to be specifically related to the [specific
criminal] activity believed to be occurring at” the place to be searched). To assume
otherwise exhibits a lack of faith in the sensibleness of police officers charged with reading
and executing the search warrant.
____________________________________
JONATHAN B. SUTIN, Judge
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