{ "id": 1552791, "name": "STATE of New Mexico, Plaintiff-Appellee, v. John Raymond LOVATO, Defendant-Appellant", "name_abbreviation": "State v. Lovato", "decision_date": "1993-12-22", "docket_number": "No. 15085", "first_page": "68", "last_page": "71", "citations": [ { "type": "official", "cite": "117 N.M. 68" }, { "type": "parallel", "cite": "868 P.2d 1293" } ], "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": "790 P.2d 1032", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1990, "opinion_index": 0 }, { "cite": "109 N.M. 751", "category": "reporters:state", "reporter": "N.M.", "year": 1990, "opinion_index": 0 }, { "cite": "109 N.M. 720", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590196 ], "weight": 2, "pin_cites": [ { "page": "723" }, { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0720-01" ] }, { "cite": "113 N.M. 421", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723193 ], "weight": 2, "pin_cites": [ { "page": "424" }, { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0421-01" ] }, { "cite": "97 N.M. 312", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555162 ], "weight": 7, "pin_cites": [ { "page": "313-14" }, { "page": "600-01" }, { "page": "314" }, { "page": "601" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0312-01" ] }, { "cite": "766 P.2d 454", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1989, "pin_cites": [ { "page": "458-59", "parenthetical": "en banc" } ], "opinion_index": 0 }, { "cite": "111 Wash.2d 892", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1179798 ], "year": 1989, "pin_cites": [ { "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/wash-2d/111/0892-01" ] }, { "cite": "763 F.2d 11", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 373411 ], "pin_cites": [ { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/f2d/763/0011-01" ] }, { "cite": "99 N.M. 286", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584622 ], "weight": 8, "year": 1982, "pin_cites": [ { "page": "290" }, { "page": "617" }, { "page": "290" }, { "page": "617" }, { "page": "290" }, { "page": "617" }, { "page": "292" }, { "page": "619", "parenthetical": "warrant not rendered invalid by inclusion in affidavit of some information not supported by probable cause; warrant may nevertheless stand if remaining allegations demonstrate probable cause" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0286-01" ] }, { "cite": "109 N.M. 211", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590218 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "217", "parenthetical": "following Aguilar-Spinelli analysis" }, { "page": "36", "parenthetical": "following Aguilar-Spinelli analysis" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0211-01" ] }, { "cite": "378 U.S. 108", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165107 ], "weight": 3, "year": 1964, "opinion_index": 0, "case_paths": [ "/us/378/0108-01" ] }, { "cite": "393 U.S. 410", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11317375 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/393/0410-01" ] } ], "analysis": { "cardinality": 521, "char_count": 9500, "ocr_confidence": 0.694, "pagerank": { "raw": 5.6670702309334284e-08, "percentile": 0.35306247584318623 }, "sha256": "2dce691fae2828374c775cc2779091a2da19e6bfa86120f8fe459dfb16b35be8", "simhash": "1:fdeae11a62832165", "word_count": 1528 }, "last_updated": "2023-07-14T15:10:41.727131+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MINZNER, C.J., and ALARID, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. John Raymond LOVATO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nPICKARD, Judge.\nDefendant appeals his conviction for possession of cocaine contrary to NMSA 1978, Section 30-31-23 (Cum.Supp.1993). Our calendar notice proposed summary affirmance. Defendant has filed a memorandum in opposition. Not persuaded by it, we affirm.\nFACTS\nOn August 7, 1992, undercover narcotics detective Andrew Perez filled out an affidavit for a search warrant to search Room Number 16 at the Relax Motel in Albuquerque. The affidavit set forth the following relevant facts. Within the previous three days, a confidential informant, with whom Detective Perez had worked in the past, told Perez that the confidential informant had knowledge of a person who knew where to buy cocaine. The confidential informant introduced Perez to this person, who was referred to in the affidavit as the \u201cunwitting informant.\u201d The unwitting informant told Perez that the unwitting informant could take Perez to a motel to buy cocaine. The unwitting informant got into Perez\u2019s car and Perez drove, at the unwitting informant\u2019s direction, to the Relax Motel. Perez gave the unwitting informant some money, and he observed the unwitting informant walk up to Room Number 16 and knock on the door. Perez then observed the unwitting informant go into the room and come out three minutes later. The unwitting informant got back into the car and handed Perez a paper bindle filled with a substance that tested positive for cocaine. The affidavit further stated that this routine was repeated at- the motel room later that same day, with the same results. A warrant was issued based on this affidavit, the motel room was searched, drugs and drug paraphernalia were found, and Defendant, who was in the room, was arrested.\nDefendant was indicted for possession of cocaine and for possession of drug paraphernalia. The trial court denied Defendant\u2019s motion to suppress the physical evidence seized pursuant to the warrant and his motions to disclose the identities of the informants. Defendant pled guilty to the drug possession charge, reserving the right to appeal the trial judge\u2019s rulings on the motions.\nMOTION TO SUPPRESS\nDefendant contends that the physical evidence seized pursuant to the search warrant should have been suppressed. Defendant relies on the so-called Aguilar-Spinelli test, which states that an affidavit based on an informant\u2019s hearsay will constitute probable cause for a search warrant only if the affidavit establishes both the credibility and the basis of knowledge of the informant. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); see also State v. Cordova, 109 N.M. 211, 217, 784 P.2d 30, 36 (1989) (following Aguilar-Spinelli analysis). Defendant argues that the affidavit in this case established neither the credibility nor the basis of knowledge of either of the informants, and that the search warrant was therefore invalid.\nThe Aguilar-Spinelli analysis applies only to hearsay contained in an affidavit in support of a search warrant. See SCRA 1986, 5-211(E) (Repl.1992) (\u201cAs used in this rule, \u2018probable cause\u2019 shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.\u201d) (emphasis added); see also State v. Snedeker, 99 N.M. 286, 290, 657 P.2d 613, 617 (1982). In the present ease, some of the information in the affidavit \u2014 such as the statement that the confidential informant told Detective Perez that the confidential informant knew someone who knew where to buy cocaine\u2014 was clearly hearsay and would therefore have had to satisfy the Aguilar-Spinelli analysis before it could constitute probable cause for the warrant.\nHowever, we do not view the unwitting informant\u2019s actions at the motel as hearsay. Specifically, we do not believe that the informant, who did not realize that he or she was buying cocaine for a law enforcement officer, intended his or her conduct as an assertion; consequently, that conduct was not hearsay. See SCRA 1986, 11-801(A)(2) (nonverbal conduct may be a statement for hearsay purposes only if intended by actor as an assertion); see also United States v. Butler, 763 F.2d 11, 14 (1st Cir.1985) (under Federal Rule of Evidence 801(a)(2), observed conduct of drug go-between not an assertion but instead simply ordinary conduct due to lack of evidence that go-between was engaging in a charade and deliberately seeking to mislead the observer). Instead, we view Perez\u2019s personal observations of that conduct as the detective\u2019s personal knowledge. As such, we do not apply the Aguilar-Spinelli analysis to Perez\u2019s observations of the unwitting informant, see Snedeker, 99 N.M. at 290, 657 P.2d at 617; accord State v. Mejia, 111 Wash.2d 892, 766 P.2d 454, 458-59 (1989) (en banc) (citing cases), but rather we decide whether the magistrate could have determined that sufficient underlying circumstances existed to support Perez\u2019s belief that controlled substances were in the motel room, Snedeker, 99 N.M. at 290, 657 P.2d at 617.\nPerez stated in his affidavit that he twice observed the unwitting informant take his money, walk up to the motel room, go inside the room, come out minutes later, and hand Perez what tested to be cocaine. Assuming, but not deciding, that the affidavit did not satisfy the Aguilar-Spinelli test with regard to any hearsay statements in it, we nevertheless hold that Detective Perez\u2019s personal observations of the unwitting informant constituted sufficient facts and circumstances to satisfy probable cause for the issuance of the warrant. See Snedeker, 99 N.M. at 292, 657 P.2d at 619 (warrant not rendered invalid by inclusion in affidavit of some information not supported by probable cause; warrant may nevertheless stand if remaining allegations demonstrate probable cause). Therefore, the trial judge properly denied Defendant\u2019s suppression motion.\nMOTIONS TO DISCLOSE IDENTITIES OF INFORMANTS\nIn his memorandum in opposition to our calendar notice, Defendant argues that the trial court abused its discretion by not at least holding an in camera interview of the two informants pursuant to SCRA 1986, 11-510(C)(2). Defendant cites State v. Beck, 97 N.M. 312, 639 P.2d 599 (Ct.App.1982), in support of his argument. In Beck, we held that an in camera hearing is required when a defendant raises a claim that an informant\u2019s testimony is needed to prepare the defense properly, and the defendant supports that claim with a proper showing. Beck, 97 N.M. at 313-14, 639 P.2d at 600-01; see also SCRA 11-510(0(2). We are unconvinced that Defendant made a proper showing in support of those claims. We address the confidential informant first.\nWe held in Beck that a proper showing requires a showing of relevancy. Beck, 97 N.M. at 314, 639 P.2d at 601. We further stated that the defendant in that case, who was charged with drug sales, \u201cclaims the informer was an active participant\u2014an arranger and participant in the sales. This claim met the test of relevancy.\u201d Id. (emphasis added). In this case, Defendant\u2019s motion to disclose the confidential informant\u2019s identity alleged that the informant was instrumental in arranging the sale of the cocaine in question. Defendant, however, was indicted for possession of drug paraphernalia and drugs that were in his room at the time of the search, not drug sales conducted prior to securing the warrant. Consequently, Defendant\u2019s claim failed to show how the confidential informant\u2019s testimony would have been relevant. There was no abuse of discretion by the trial court in denying this motion. See State v. Campos, 113 N.M. 421, 424, 827 P.2d 136, 139 (Ct.App.1991) (standard of review), cert. granted (N.M. Dec. 4, 1991).\nAs for the unwitting informant, Defendant\u2019s motion to disclose alleged that the informant was a material witness to the issues of identity and entrapment, and he argues that the trial court should have inquired into whom the informant dealt with. However, Defendant did not explain how such testimony from the informant would have been relevant to the crimes of possession of drugs and drug paraphernalia. Similarly, Defendant failed to explain how testimony from the informant would have aided in an entrapment defense. Thus, Defendant did not make a proper showing that the unwitting informant\u2019s testimony was needed for his defense, and the trial court did not abuse its discretion in denying this motion. See State v. Vasquez, 109 N.M. 720, 723, 790 P.2d 517, 520 (Ct.App.) (no abuse of discretion to deny in camera hearing when defendant does not explain how informant can assist in establishing defense), cert. denied, 109 N.M. 751, 790 P.2d 1032 (1990).\nWe note that Defendant makes no claim that he sought disclosure of either informant pursuant to SCRA 1986, 11-510(C)(3). Accordingly, we do not address any issues under that subparagraph of the rule.\nCONCLUSION\nWe affirm Defendant\u2019s conviction for possession of a controlled substance.\nIT IS SO ORDERED.\nMINZNER, C.J., and ALARID, J., concur.", "type": "majority", "author": "PICKARD, Judge." } ], "attorneys": [ "Tom Udall, Atty. Gen., Santa Fe, for plaintiff-appellee.", "Mary L. Marlowe, The Marlowe Law Firm, P.C., Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "868 P.2d 1293\nSTATE of New Mexico, Plaintiff-Appellee, v. John Raymond LOVATO, Defendant-Appellant.\nNo. 15085.\nCourt of Appeals of New Mexico.\nDec. 22, 1993.\nCertiorari Denied Feb. 4, 1994.\nTom Udall, Atty. Gen., Santa Fe, for plaintiff-appellee.\nMary L. Marlowe, The Marlowe Law Firm, P.C., Santa Fe, for defendant-appellant." }, "file_name": "0068-01", "first_page_order": 104, "last_page_order": 107 }