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Confidential Informants & Probable Cause for Warrant to Search of Home in New Mexico

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In the case of State v. Vest, the New Mexico Court of Appeals found that a confidential informant‘s report that the defendant, Shane R. Vest, was selling marijuana was not enough to justify a search of his house under the search and seizure protections of the 4th Amendment and New Mexico Constitution, Article II, Section 10 because the State had failed to establish the informant‘s veracity.

The informant participated in two controlled purchases of marijuana and told police that he observed Mr. Vest handling between one-quarter and one-half pound of marijuana in his trailer in Logan, New Mexico. A police officer staked out Mr. Vest‘s trailer on four separate occasions and observed vehicles arriving at a rate of between two and seven per hour. Each visitor stayed at the trailer for just five minutes. This behavior was consistent with drug-trafficking, according to the police.

When the police acted on a warrant and searched Mr. Vest‘s trailer, they found currency, guns, ammunition, marijuana, scales, packaging materials, and drug paraphernalia. The defendant entered a conditional plea to distribution of marijuana and possession of drug paraphernalia reserving his challenged to the search and the district court‘s denial of his Motion to Suppress.

The Court overturned Mr. Vest‘s conviction, finding that the issuance of the warrant had violated his rights under the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution, both of which require probable cause before a search warrant is issued.

The Court applied the five-prong test of In re Shon Daniel K., which says, “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.”

The State disputed the first and fourth factors applied in this case, but the Court found that the State failed to meet its burden for either factor. First, the Court agreed with the defendant that “the affidavit merely contained conclusory assertions, rather than any actual evidence that the informant had provided reliable information in the past,” thereby failing under the first factor.

Second, because there was no “timely corroboration” of the informant‘s information, the police officer‘s observation of suspicious activity consistent with drug trafficking did not support the informant‘s claim that the defendant “had present possession of marijuana.”

In short, the New Mexico Court of Appeals strictly enforced the protections under the 4th Amendment and Article II, Section 10. The protections against unlawful search and seizure are strictly applied in New Mexico. In fact, Article II, Section 10 provides even greater protection than federal law in keeping with New Mexico‘s heightened protection of individual rights to privacy above and beyond the 4th Amendment.

Collins & Collins, P.C.
Albuquerque Attorneys

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