Both the United States and New Mexico Constitutions protect people in New Mexico from unreasonable searches and seizures by the police. These protections arise under Article II, Section 10 of the New Mexico State Constitution and the 4th Amendment to the U.S. Constitution.
In order for the police to search any place or seize any person, they must obtain a warrant. A warrant requires the police to specifically describe what they want to seize, and it has to include a written description of why the police officer believes he or she has probable cause to believe the search will show criminal activity occurred.
In New Mexico v. Boyse, the New Mexico Court of Appeals determined that a warrant obtained by an officer over the telephone was not permitted. In August 2008, an officer responded to a call about a dead horse smell at the defendant‘s home. He saw evidence of numerous problems while he was looking around the property, and he decided to obtain a search warrant.
The courts were closed at that point, and the police officer did not attempt to find a judge in person. Instead, the police officer contacted the on-call judge by telephone to obtain verbal approval for the warrant. The judge administered an oath to the police officer, and the officer read him the typed facts in support of the search warrant. The judge approved the warrant and the police officer signed the judge‘s name to the warrant. Several days later, the judge then signed and initialed the warrant himself.
In New Mexico, the Constitution requires a written showing of probable cause. The fact that a sworn writing exists is not enough to satisfy the requirements of the New Mexico Constitution. The requirement for the existence of a sworn writing indicates that the sworn writing must exist somewhere, but also that it must be shown and considered by the court before the warrant issues. In other words, the judge must physically review the police officer‘s sworn statement before issuing a warrant. Therefore, the constitutional requirements are not met if the police officer writes out a probable cause statement but does not show it to the judge.
In this case, when the judge approved the warrant, the police officer did not show the writing to the judge. While the police officer read the written statement to the judge, the judge had no way of knowing whether the written statement even existed. Furthermore, the judge did not have any way of knowing if it was modified between the phone conversation and the time the judge signed the warrant. The possibility of error or abuse is simply too great. The warrant was invalid, and the evidence obtained from the search could not be used against the defendant.
The protections of the 4th Amendment and Article II, Section 10 of the New Mexico State Constitution provide significant protections to the public. This is particularly true for those charged with crimes in the State. In fact, search and seizure violations and the suppression of illegally obtained evidence are in many cases the best and/or only line of defense in a criminal case.
If you have been charged with a crime, it is important to speak with an attorney with knowledge of search and seizure issues. It is particularly important to discuss the facts surrounding any search of your property as well as the circumstances of arrest. It may be that your best defense is on search and seizure grounds.
More Reading on Search & Seizure:
Proximity to Alleged Crime Alone Does Not Justify Search & Seizure in New Mexico
Anonymous Hearsay, Without Evidence of Truthfulness, Cannot Constitute Probable Cause for a Warrant
Search Warrant for Home Does Not Necessarily Extend to Guest House in New Mexico