The 4th Amendment illegal search and seizure protections are closely guarded in New Mexico. In fact, the New Mexico courts by way of the New Mexico Constitution often extend these protections beyond those found under federal law.
The requirement of a validly obtained search warrant is one very important protection against search and seizure. A search warrant will only be issued upon a showing of probable cause to believe that a crime has been committed. Search warrants are issued upon the written sworn affidavit of the officer establishing probable cause.
The question then becomes how must this showing of probable cause be presented to the judge for issuance of the search warrant. The New Mexico Supreme Court case of State v. Boyse addressed that issue in the context of a search warrant issued by phone.
Here, the Court had to look to the language of the New Mexico Constitution to determine whether probable cause can be shown and a warrant can be issued through auditory means. In short, is the telephonic approval of a search warrant permissible when the rules of criminal procedure don‘t expressly disallow the issuance of a warrant by telephone?
The Search Warrant in Question
The case began with a properly completed search warrant affidavit to investigate the defendant‘s property. However, the Magistrate Court was closed at the time. Therefore, the officer contacted the magistrate court judge by phone. After administering an oath to the officer over the phone, the judge approved the search warrant. The officer later obtained the magistrate judge‘s signature and initials on the search warrant.
Based upon evidence found under the search warrant, the defendants were charged with fifty-two counts of felony cruelty to animals and fifty-five counts of misdemeanor cruelty to animals. The defendants moved to suppress the evidence obtained through the search warrant. They contended that a search warrant had to be obtained in person based on the language of Article II, section 10 of the New Mexico Constitution.
The district court denied the defendants‘ motion, finding that the search warrant had been properly issued. The New Mexico Court of Appeals reversed, interpreting the language of the Constitution to mean that a showing of probable cause requires a judge to physically see an affidavit before issuing a search warrant. The State appealed to the New Mexico Supreme Court.
Plain Meaning of “Showing” of Probable Cause?
The Supreme Court explained that when dealing with an issue of constitutional interpretation, it first looks to the plain meaning of the words at issue. The New Mexico Constitution requires that no search warrant be issued “without a written showing of probable cause, supported by oath or affirmation.”
The Court looked to the plain meaning of a “showing” of probable cause. It reasoned that to “show” something means to “present it for viewing,” but that placing something within sight or view is only one way of “showing” it. It looked to Webster‘s Dictionary, which also defines “showing” as making something “evident or apparent,” and as “a statement or presentation of a case or an interpretation of a set of facts.” Black‘s Law Dictionary similarly defines “showing” as “making apparent or clear by evidence; to prove.”
Under these definitions, the Court determined that the plain meaning of “showing,” as it‘s used in the Constitution, could be achieved through visual, audible, or other sensory means. This would include the situation here where the officer described to the magistrate the basis for the warrant.
Showing of Probable Cause Can be Made by Phone
The Court went on to explain that its finding that a “showing” of probable cause can be made by telephone doesn‘t lead to any injustice and is not inconsistent with the spirit of the constitutional protections afforded by legally obtained search warrants.
The Court reasoned that the purpose of the search warrant requirement is to provide protection against unreasonable intrusion and to give notice to the individual who is subject to the search. In the Court‘s estimation, the approval of a search warrant by telephone is not inconsistent with these purposes.
In conclusion, the Court found that the telephonic approval of a search warrant is consistent with a “showing” of probable cause as required by the New Mexico Constitution.