{ "id": 4239999, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. BOBACK SABEERIN, Defendant-Appellant", "name_abbreviation": "State v. Sabeerin", "decision_date": "2014-10-24", "docket_number": "No. 34,886; Docket Nos. 31,412 and 31,895", "first_page": "805", "last_page": "815", "citations": [ { "type": "official", "cite": "2014-NMCA-110" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "774 F.2d 402", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 35678 ], "year": 1985, "pin_cites": [ { "page": "404", "parenthetical": "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\"" } ], "opinion_index": 0, "case_paths": [ "/f2d/774/0402-01" ] }, { "cite": "306 P.3d 534", "category": "reporters:state_regional", "reporter": "P.3d", "year": 1985, "pin_cites": [ { "parenthetical": "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\"" } ], "opinion_index": 0 }, { "cite": "2013-NMCA-075", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4334557 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "\u00b6 22", "parenthetical": "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\"" }, { "page": "\u00b6\u00b6 1-2" } ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0291-01" ] }, { "cite": "275 P.3d 110", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4188256 ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0535-01" ] }, { "cite": "112 N.M. 679", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720147 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/112/0679-01" ] }, { "cite": "1991-NMCA-103", "category": "reporters:neutral", "reporter": "NMCA", "opinion_index": 0 }, { "cite": "107 N.M. 165", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597064 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/107/0165-01" ] }, { "cite": "1988-NMCA-033", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0 }, { "cite": "2006-NMSC-026", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2542281 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6\u00b6 13-14" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0647-01" ] }, { "cite": "109 N.M. 211", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590218 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/109/0211-01" ] }, { "cite": "1989-NMSC-083", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0 }, { "cite": "2011-NMSC-040", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4249916 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0721-01" ] }, { "cite": "2009-NMCA-031", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4242453 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 14, 23" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0733-01" ] }, { "cite": "99 N.M. 286", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584622 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/99/0286-01" ] }, { "cite": "1982-NMSC-085", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0 }, { "cite": "285 P.3d 668", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4189330 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 36" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0491-01" ] }, { "cite": "290 U.S. 41", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3927198 ], "weight": 2, "year": 1933, "pin_cites": [ { "page": "47", "parenthetical": "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" }, { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/us/290/0041-01" ] }, { "cite": "303 P.3d 838", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4334680 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 15" }, { "page": "\u00b6 14" }, { "page": "\u00b6 16" }, { "page": "\u00b6 17" }, { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0342-01" ] }, { "cite": "2003-NMCA-008", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15954 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0158-01" ] }, { "cite": "2000-NMCA-016", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106491 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0591-01" ] }, { "cite": "2009-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4244042 ], "weight": 8, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 11" }, { "page": "\u00b6 11" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 10" }, { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0319-01" ] }, { "cite": "335 U.S. 451", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6159793 ], "year": 1948, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/us/335/0451-01" ] }, { "cite": "2009-NMSC-039", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243892 ], "weight": 11, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6 30" }, { "page": "\u00b6 29" }, { "page": "\u00b6 29" }, { "page": "\u00b6 30" }, { "page": "\u00b6 30" }, { "page": "\u00b6 31" }, { "page": "\u00b6 32" }, { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0488-01" ] }, { "cite": "1999-NMCA-107", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257746 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 37-39" } ], "opinion_index": 1, "case_paths": [ "/nm/127/0752-01" ] }, { "cite": "2007-NMCA-116", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3692754 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 1, "case_paths": [ "/nm/142/0475-01" ] }, { "cite": "4 F.3d 1200", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11939466 ], "year": 1993, "pin_cites": [ { "page": "1208", "parenthetical": "\"[T]he phrases in a search warrant must be read in context and not in isolation.\"" } ], "opinion_index": 1, "case_paths": [ "/f3d/4/1200-01" ] }, { "cite": "737 F.3d 129", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3732418 ], "year": 2013, "pin_cites": [ { "page": "133" } ], "opinion_index": 1, "case_paths": [ "/f3d/737/0129-01" ] }, { "cite": "2011-NMSC-040", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4249916 ], "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 1, "case_paths": [ "/nm/150/0721-01" ] }, { "cite": "2013-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4334680 ], "pin_cites": [ { "page": "\u00b6\u00b6 16-17" } ], "opinion_index": 1, "case_paths": [ "/nm-app/4/0342-01" ] }, { "cite": "2009-NMSC-039", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243892 ], "pin_cites": [ { "page": "\u00b6 31" } ], "opinion_index": 1, "case_paths": [ "/nm/146/0488-01" ] } ], "analysis": { "cardinality": 1079, "char_count": 32767, "ocr_confidence": 0.786, "pagerank": { "raw": 5.061447019797991e-08, "percentile": 0.31861915501637356 }, "sha256": "f484f20cf1ec006dc86cf44e8ab26d1f7ee38a158837829c95e658c11fdda318", "simhash": "1:918262f3c5c582f3", "word_count": 5122 }, "last_updated": "2023-07-14T17:19:17.637489+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "M. MONICA ZAMORA, Judge", "I CONCUR:", "MICHAEL E. VIGIL, Judge", "JONATHAN B. SUTIN, Judge (dissenting).", "JONATHAN B. SUTIN, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. BOBACK SABEERIN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nZAMORA, Judge.\n{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 numb er (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.\n{2} Defendant makes a number of arguments in support of reversal. We hold that Defendant\u2019s 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\u2019s 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.\nBACKGROUND\n{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 \u2014 one that had been purchased by Tahir at an insurance auction as a \u201ccomplete burn and totaled\u201d vehicle. Detective Timothy Fassler of the Albuquerque Police Department\u2019s auto theft unit learned that the true VIN of the vehicle that T ahir was driving had been reported stolen two months before Tahir\u2019s arrest. Detective Fassler\u2019s further investigation revealed that Tahir had purchased a large number of totaled vehicles at auction.\n{4} Having received a tip that Tahir \u201cdid business\u201d 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 \u2014 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\u2019s search warrant affidavit and revealed other stolen and VIN-altered vehicles. During his investigation into Tahir\u2019s activities, Detective Fassler \u201clearned\u201d that Tahir also \u201cdid business\u201d 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 \u201csuspicious,\u201d he sought a search warrant for that property as well.\n{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 T ahir 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.\n{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 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\u2019s motions to suppress should have been granted, and reverse on that basis, we do not reach his remaining arguments.\nThe Search Warrant Affidavit Did Not Establish Probable Cause\n{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 \u201calso did business at 112 General Arnold.\u201d He also argues that Detective Fassler\u2019s \u201cassertion that there were \u2018several suspicious vehicles\u2019 at\u201d the General Arnold property was insufficient to \u201cestablish probable cause to believe that evidence of criminal activity would be found there.\u201d 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.\nProbable Cause\n{8} \u201cThe 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.\u201d State v. Williamson, 2009-NMSC-039, \u00b6 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:\nWe 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.\n\u201cProbable 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.\u201d State v. Evans, 2009-NMSC-027, \u00b6 10, 146 N.M. 319, 210 P.3d 216.\n{9} A search warrant may only issue \u201con a sworn written statement of the facts showing probable cause for issuing the warrant.\u201d Rule 5-211(A)(4) NMRA. An affidavit in support of a search warrant \u201cmust contain sufficient facts to enable the issuing [judge] independently to pass judgment on the existence of probable cause.\u201d Williamson, 2009-NMSC-039, \u00b6 30 (internal quotation marks and citation omitted); see also State v. Knight, 2000-NMCA-016, \u00b6 15, 128 N.M. 591, 995 P.2d 1033 (\u201cAffidavits supporting search warrants must be sufficiently detailed so that the analyzing court can make a probable cause determination.\u201d), holding limited by Williamson, 2009-NMSC-039, \u00b6 29; see also State v. Gonzales, 2003-NMCA-008, \u00b6 12, 133 N.M. 158, 61 P.3d 867 (stating that probable cause to issue a warrant requires a factual showing \u201cthat there is a reasonable probability that evidence of a crime will be found in the place to be searched\u201d), holding limited by Williamson, 2009-NMSC-039, \u00b6 29.\n{10} Detailed search warrant affidavits \u201cmust 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.\u201d Evans, 2009-NMSC-027, \u00b6 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 \u201ca sufficient nexus between (1) the criminal activity, and (2) the things to be seized, and (3) the place to be searched.\u201d State v. Gurule, 2013-NMSC-025, \u00b6 15, 303 P.3d 838 (internal quotation marks and citation omitted).\n{11} There is no bright-line test for determining probable cause. Evans, 2009-NMSC-027, \u00b6 11. Probable cause does not have to be based on absolute factual certainty, but it must be based on \u201cmore than a suspicion or possibility.\u201d Id. (internal quotation marks and citation omitted). \u201c[A] mere suspicion that the objects in question are connected with criminal activity will not suffice.\u201d Gurule, 2013-NMSC-025, \u00b6 14 (citing 2 Wayne LaFave, et. al., Search and Seizure: A Treatise on the Fourth Amendment \u00a7 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).\n{12} \u201c \u2018[Pjrobable cause\u2019 shall be based upon substantial evidence.\u201d Rule 5-211(E); see also State v. Haidle, 2012-NMSC-033, \u00b6 11, 285 P.3d 668 (same). \u201c[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.\u201d Williamson, 2009-NMSC-039, \u00b6 30. \u201cThis 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[.]\u201d Gurule, 2013-NMSC-025, \u00b6 16 (internal quotation marks and citation omitted). Hence, \u201cif 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.\u201d Williamson, 2009-NMSC-039, \u00b6 30 (alteration, internal quotation marks, and citation omitted).\n{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 court in assessing the validity of the warrant. \u201c[I]n evaluating a probable cause determination, the reviewing court must focus on the issuing judge\u2019s determination regarding the information contained in the four corners of the [search warrant] affidavit.\u201d Gurule, 2013-NMSC-025, \u00b6 17; see also Williamson, 2009-NMSC-039, \u00b6 31 (noting that the reviewing court must consider only the information contained within \u201cthe four corners of the search warrant affidavit,\u201d as well as the affidavit as a whole). \u201cAll direct and circumstantial evidence alleged, as well as all reasonable inferences to be drawn from those allegations, should be considered.\u201d State v. Snedeker, 1982-NMSC-085, \u00b6 24, 99 N.M. 286, 657 P.2d 613. As the reviewing court, we are required to give deference to the issuing court\u2019s determination of probable cause and should not substitute our judgment for that court. Id. \u00b6 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.\nThe Search Warrant Affidavit\u2019s Content\n{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.\n{15} The search warrant affidavit details Detective Fassler\u2019s subsequent investigation into Tahir\u2019s 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\u2019s VIN. Based on Tahir\u2019s 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.\n{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 Island property, butrelatively few facts related to the General Arnold property. The only additional facts pertaining to the General Arnold property are:\nThere are numerous vehicles visible through the fence that have been, or are being dismantled. Also cars with no damage at all are visible.\nDuring the investigation [into Tahir\u2019s 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.\nWe 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\u2019s criminal activity at the Rhode Island property to the General Arnold property. We conclude that it does not.\n{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\u2019s presence there, and the presence of \u201csuspicious vehicles\u201d on the premises, collectively support an inference that further evidence of Tahir\u2019s auto theft and VIN-switching operation would be found at the General Arnold property. We disagree.\n{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, \u00b6\u00b6 14, 23, 145 N.M. 733, 204 P.3d 748 (holding that the search warrant affidavit contained sufficient information regarding the investigating detective\u2019s 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\u2019s investigation. The search warrant 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, \u00b6 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).\n{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 \u201ca substantial basis for believing the source of the hearsay to be credible and . . . that there is a factual basis for the information furnished\u201d); see also State v. Cordova, 1989-NMSC-083, \u00b6 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\u2019s 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.\n{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 \u201csuspicious\u201d 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, \u00b6 10. The search warrant affidavit states that \u201csuspicious vehicles\u201d 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, \u00b6 32 (upholding a search warrant because the facts describing a suspicious package were sufficiently detailed to support the issuing court\u2019s determination of probable cause).\n{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 \u201cparticularly exacting.\u201d State v. Nyce, 2006-NMSC-026, \u00b6 14, 139 N.M. 647, 137 P.3d 587, limited on other grounds by Williamson, 2009-NMSC-039, \u00b6 29. See Nyce, 2006-NMSC-026, \u00b6\u00b6 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, \u00b6 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 \u201care generally descriptive of hundreds of innocent persons traveling through New Mexico on the interstate every day\u201d).\n{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 purchased multiple items at different stores. These items were ingredients used to make methamphetamine, but could also be used for legal purposes. Id. \u00b6 2. She attempted to use a self-pay register. Id. She had a hurried pace. Id. \u00b6 3. She purchased more items at another store and then dropped everything off at her boyfriend\u2019s home. Id. \u00b6 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. \u00b6 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. \u00b6 28. Thus, the affidavit failed to establish probable cause to support the issuance of a search warrant for the boyfriend\u2019s house. See id.\n{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, \u00b6 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. \u00b6\u00b6 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. \u00b6\u00b6 14-15.\n{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\u2019s 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.\n{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, \u00b6 14; see Nathanson, 290 U.S. at 47; Evans, 2009-NMSC-027, \u00b6 11.\nAffidavit\u2019s Concluding Paragraph\n{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:\nBased 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 under the auspices of the District Court, County ofBemalillo, State of New Mexico.\n(Emphasis added.) The Fourth Amendment to the United States Constitution requires that a search warrant particularly describe the \u201cthings to be seized.\u201d Article II, Section 10 of the New Mexico Constitution requires that the search warrant must describe the \u201cthings to be seized.\u201d \u201cThe purpose of the particularity requirement is to prevent general searches.\u201d State v. Light, 2013-NMCA-075, \u00b6 22, 306 P.3d 534; see also Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985) (stating that \u201c[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\u201d). There must be a sufficient nexus between the evidence law enforcement is looking for and the particular place being searched.\n{27} In our recent opinion in Light, we concluded a search warrant was impermissibly broad when it allowed law enforcement to search \u201call persons\u201d located within a theater known for illegal substances and the defendant\u2019s only connection to any crime was her presence at a public event where the illegal activity was taking place. 2013-NMCA-075, \u00b6\u00b6 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. \u00b6 23. However, the disagreement was with the validity of an \u201call persons\u201d warrant. Id. \u00b6\u00b6 24-25.\n{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 \u201cmay lead investigators to the offender(s) and or possible witnesses\u201d in the case. This warrant is therefore invalid as an impermissible general warrant.\n{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, \u00b6 36 (concluding that the facts included in the search warrant affidavit amounted to \u201cbits and pieces of circumstantial ... content ... [which] fail[ed] to provide the substantial evidence required for the [judge] to find probable cause\u201d). We reverse and remand for proceedings consistent with this Opinion.\n{30} IT IS SO ORDERED.\nM. MONICA ZAMORA, Judge\nI CONCUR:\nMICHAEL E. VIGIL, Judge\nJONATHAN B. SUTIN, Judge (dissenting).", "type": "majority", "author": "ZAMORA, Judge." }, { "text": "SUTIN, Judge\n(dissenting).\n{31} I respectfully dissent.\n{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, \u00b6 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 \u201csubstantial basis for determining that there is probable cause to believe that a search will uncover evidence of wrongdoing.\u201d Id. \u00b6\u00b6 17, 19 (internal quotation marks and citation omitted). \u201cProbable 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.\u201d Id. \u00b6 16 (alteration, internal quotation marks, and citation omitted). Because the relevant inquiry is whether the warrant-issuing court\u2019s determination of probable cause was supported by a substantial basis in the affidavit, we limit our review to \u201cthe information contained in the four corners of the affidavit.\u201d Gurule, 2013-NMSC-025, \u00b6\u00b6 16-17. If the affidavit provides a substantial basis to support a finding of probable cause, the issuing court\u2019s determination must be upheld. Id. \u00b6 16. \u201cWhen ruling on probable cause, we deal only in the realm of reasonable possibilities, and look to the totality, of circumstances to determine if probable caitse is present.\u201d Williamson, 2009-NMSC-039, \u00b6 31 (internal quotation marks and citation omitted).\n{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\u2019s 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.\n{34} The \u201ctip\u201d 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 Tahir at the General Arnold property with the same sort of suspicious vehicles in sight that he discovered in his investigation of Tahir\u2019s activities at the Rhode Island property.\n{35} The majority\u2019s view that the search warrant and affidavit too broadly authorized the executing officers to search and seize \u201ceverything and anything\u201d conducive to the investigation is based on an isolated view of the affidavit\u2019s concluding paragraph. Majority Op. \u00b6 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 \u201ca warrant\u2019s 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\u201d (internal quotation marks and citation omitted)); United States v. Conley, 4 F.3d 1200, 1208 (3d Cir. 1993) (\u201c[T]he phrases in a search warrant must be read in context and not in isolation.\u201d).\n{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: \u201cstolen/altered vehicles[, vjehicles with vin plates removed, [t]ools to take and alter vehicles, documentation of altering/changing vehicles[, r]emoved vin plates, [and] NADER labelsf] to change and alter stolen vehicles[\u2019] identities.\u201d The affidavit included details regarding Detective Fassler\u2019s investigation into Tahir\u2019s 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: \u201cBased 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[.]\u201d 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, \u00b6 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, \u00b6\u00b6 37-39, 127 N.M. 752, 987 P.2d 409 (rejecting the defendant\u2019s lack-of-particularity argument where the items \u201cto be searched and seized were described with sufficient particularity to be specifically related to the [specific criminal] activity believed to be occurring at\u201d 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.\nJONATHAN B. SUTIN, Judge", "type": "dissent", "author": "SUTIN, Judge" } ], "attorneys": [ "Gary K. King, Attorney General MargaretMcLean, Assistant Attorney General Santa Fe, NM", "for Appellee", "Jorge A. Alvarado, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM", "for Appellant" ], "corrections": "", "head_matter": "Certiorari Granted, October 24, 2014,\nNo. 34,886\nDocket Nos. 31,412 and 31,895\n(consolidated)\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMCA-110\nFiling Date: August 11, 2014\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. BOBACK SABEERIN, Defendant-Appellant.\nGary K. King, Attorney General MargaretMcLean, Assistant Attorney General Santa Fe, NM\nfor Appellee\nJorge A. Alvarado, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM\nfor Appellant" }, "file_name": "0805-01", "first_page_order": 821, "last_page_order": 831 }