{ "id": 1568835, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Frank F. TURKAL, Defendant-Appellant", "name_abbreviation": "State v. Turkal", "decision_date": "1979-09-21", "docket_number": "No. 12158", "first_page": "248", "last_page": "252", "citations": [ { "type": "official", "cite": "93 N.M. 248" }, { "type": "parallel", "cite": "599 P.2d 1045" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "580 P.2d 972", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1978, "opinion_index": 0 }, { "cite": "91 N.M. 751", "category": "reporters:state", "reporter": "N.M.", "year": 1978, "opinion_index": 0 }, { "cite": "91 N.M. 690", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571045 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0690-01" ] }, { "cite": "561 P.2d 1347", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1977, "opinion_index": 0 }, { "cite": "90 N.M. 254", "category": "reporters:state", "reporter": "N.M.", "year": 1977, "opinion_index": 0 }, { "cite": "90 N.M. 160", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872968 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0160-01" ] }, { "cite": "394 U.S. 557", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176248 ], "weight": 4, "year": 1969, "pin_cites": [ { "page": "569" }, { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/us/394/0557-01" ] }, { "cite": "391 F.2d 123", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2103170 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/f2d/391/0123-01" ] }, { "cite": "13 L.Ed.2d 813", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1965, "opinion_index": 0 }, { "cite": "85 S.Ct. 879", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1965, "opinion_index": 0 }, { "cite": "380 U.S. 926", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525424, 1524866, 1525339, 1525234 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0926-01", "/us/380/0926-02", "/us/380/0926-04", "/us/380/0926-03" ] }, { "cite": "379 U.S. 476", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11731294 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/379/0476-01" ] }, { "cite": "275 U.S. 192", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6139499 ], "weight": 5, "year": 1927, "pin_cites": [ { "page": "196" }, { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/us/275/0192-01" ] }, { "cite": "25 L.Ed.2d 654", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1970, "opinion_index": 0 }, { "cite": "90 S.Ct. 1354", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1970, "opinion_index": 0 }, { "cite": "397 U.S. 1044", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12104644, 12104685, 12104621, 12104663, 12104606 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/1044-03", "/us/397/1044-05", "/us/397/1044-02", "/us/397/1044-04", "/us/397/1044-01" ] }, { "cite": "80 N.M. 746", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358919 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0746-01" ] }, { "cite": "80 N.M. 521", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363285 ], "weight": 4, "pin_cites": [ { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nm/80/0521-01" ] }, { "cite": "87 N.M. 74", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2831328 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0074-01" ] }, { "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" ] }, { "cite": "376 U.S. 528", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 379836 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/376/0528-01" ] }, { "cite": "80 S.Ct. 725", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 6163485, 6163782 ], "opinion_index": 0, "case_paths": [ "/us/362/0257-01", "/us/362/0309-01" ] }, { "cite": "362 U.S. 257", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6163485 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/362/0257-01" ] }, { "cite": "378 U.S. 108", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165107 ], "weight": 3, "year": 1964, "pin_cites": [ { "page": "114" }, { "page": "1514" } ], "opinion_index": 0, "case_paths": [ "/us/378/0108-01" ] } ], "analysis": { "cardinality": 657, "char_count": 12696, "ocr_confidence": 0.788, "pagerank": { "raw": 1.1039270171620921e-07, "percentile": 0.5690470757175419 }, "sha256": "8c1948ef02a47bf8c33a0b6c366c5f706ed7f3774a24b9238025bbdf88df262c", "simhash": "1:005e316a451aba23", "word_count": 2080 }, "last_updated": "2023-07-14T15:53:36.909287+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "EASLEY and PAYNE, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Frank F. TURKAL, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSOSA, Chief Justice.\nDefendant appeals his conviction, pursuant to a jury verdict, of three counts of first degree criminal sexual penetration, \u00a7 30-9-11A, N.M.S.A.1978, and a subsequent sentence of life imprisonment. The issues we address in this appeal are:\n1) Did the trial court err in denying defendant\u2019s motion to suppress the items seized during the search of his home; and\n2) Did the trial court err in sua sponte admitting into evidence the affidavit for the search warrant?\nOn February 9, 1978, Dan Lundy of the Bernalillo County Sheriff\u2019s Department prepared an affidavit for a search warrant based on information that he had received from a confidential informant and from Lt. Grisham, also of the Sheriff\u2019s Department. A warrant was issued to search defendant\u2019s home for marijuana in an unknown quantity and any nude photographs which might be found on the premises.\nWhen the officers executed the w.arrant on February 9, they did not find any marijuana. They did find some nude photographs of at least two girls and other items in defendant\u2019s bedroom. The officers seized the photographs, cassette tapes, a tape recorder, polaroid cameras, and a marijuana pipe. Most of the photographs were of a young girl named Jennifer.\nOn the evening of February 9, the officers went to Jennifer\u2019s home and began an investigation of her relationship with defendant. On February 13, 1978, a criminal complaint was filed against defendant charging him with one count of first degree criminal sexual penetration of a child less than 13 years old, who was identified as Jennifer. The crime was alleged to have occurred on or about February 9,1978. The complaint was subsequently amended to read that the act of criminal sexual penetration had occurred between February 15, 1975 and April 15, 1975. The date was amended because Jennifer was fifteen in 1978.\nA bind-over order was filed on March 8, 1978, charging defendant with five counts of first degree criminal sexual penetration occurring between February 15, 1975 and July 26, 1975; three counts of distribution of controlled substances; and two counts of contributing to the delinquency of minors. Defendant moved to dismiss the information charging him with these crimes on the basis that he had not received a valid preliminary hearing. The motion was denied. Defendant also moved to suppress all the physical evidence seized from his residence under the authority of the search warrant. This motion was also denied.\nDefendant\u2019s trial began on July 10, 1978. Lundy testified regarding the search of defendant\u2019s home and the investigation of Jennifer. During cross-examination, defendant had the affidavit used in support of the search warrant marked as defendant\u2019s Exhibit A. By an oversight, the affidavit, though not admitted, was passed to and viewed by some of the jurors. Defendant moved for a mistrial; this motion was denied. The State moved for admission of the affidavit into evidence. The court admitted the affidavit over defendant\u2019s objection.\nThe trial court directed a verdict of not guilty on two counts of criminal sexual penetration. The jury returned verdicts of guilty as to each of the three counts of criminal sexual penetration and verdicts of not guilty as to the drug counts. Defendant moved for a new trial. This motion was denied. Defendant appeals.\nI. Seizure of the Items\nIn his first point, defendant argues that the trial court erred in denying his motion to suppress the items seized during the search of his home. In his motion to suppress, defendant argued that the affidavit for the search warrant gave no probable cause on which to issue a warrant to search for any nude or partially nude photographs.\nIn Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964), the United States Supreme Court said:\nAlthough an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, [80 S.Ct. 725, 4 L.Ed.2d 697] the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, [84 S.Ct. 825, 11 L.Ed.2d 887,] was \u201ccredible\u201d or his information \u201creliable.\u201d (Emphasis added and footnote omitted.)\nSee also Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); N.M.R.Crim.P. 17(f), N.M.S.A.1978.\nThe affidavit in this case contains three sources of information. The first source consists of a reliable confidential informant, who advised Lundy on February 9 that he had personally observed quantities of marijuana in excess of three pounds in defendant\u2019s Albuquerque home from January 26, 1978 to February 9, 1978. The informant also advised Lundy that defendant was furnishing marijuana and other drugs to numerous teenage children in defendant\u2019s neighborhood and that defendant had been doing so for quite some time. Lundy stated in the affidavit that he had used information provided by the confidential informant in the past on at least ten separate occasions and that it had proven to be true and correct on each occasion. The second source of information consists of one of the informant\u2019s friends, who told informant that he had observed marijuana in defendant\u2019s home on the morning of February 9. The third source, which is the one at issue here, consists of an unidentified \u201cconcerned juvenile citizen\u201d, who reported to Lt. Grisham that defendant was furnishing illegal drugs to several juveniles in the Albuquerque area and that defendant had been taking nude photographs of young girls and had, in fact, asked her to pose for him.\nBecause of the knowledge personal to the juvenile informant, and by a reading of the affidavit as a whole, the juvenile\u2019s veracity is shown by the reliability of the information which she provided. The information supplied by the juvenile relating to defendant\u2019s furnishing drugs to teenagers was corroborated by the information supplied by the confidential informant. Under the facts of this case, we hold that the affidavit for the search warrant contained sufficient facts upon which the district court judge could determine that the juvenile\u2019s information as to the photographs was reliable. We defer to the court\u2019s determination as to the existence of probable cause to search defendant\u2019s home for nude photographs. See State v. Bowers, 87 N.M. 74, 529 P.2d 300 (Ct.App.1974).\nIn his motion to suppress, defendant also argued that the seizure of the items exceeded the scope of the search warrant. The State counters that the seizure was proper because the items were found in plain view during the course of a legal search.\n.As previously stated, the items seized included photographs, tapes, a recorder, two polaroid cameras, and a marijuana pipe. Because we have determined that there was probable cause to search defendant\u2019s home for the photographs, we find that they were properly seized. We also find that the cameras and marijuana pipe were properly seized. However, this is not the case with the tapes and recorder.\nDuring the execution of the search warrant, the officers discovered that a tape recorder and microphone were hooked up under defendant\u2019s bed. Most of the tapes were found in the drawers of a nightstand. Upon reading the titles written on the labels of the tapes, the officers decided to listen to them to see if the tapes contained criminal evidence.\nIn State v. Paul, 80 N.M. 521, 458 P.2d 596 (Ct.App.1969), cert. denied, 80 N.M. 746, 461 P.2d 228 (1969), cert. denied, 397 U.S. 1044, 90 S.Ct. 1354, 25 L.Ed.2d 654 (1970), defendant contended that the officers had no authority to seize certain items because they were not described in the search warrant. The Court of Appeals stated that Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927), was controlling. 80 N.M. at 524, 458 P.2d at 599. In Marron, the United States Supreme Court said:\nThe requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.\n275 U.S. at 196, 48 S.Ct. at 76. See also Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965), rehearing denied, 380 U.S. 926, 85 S.Ct. 879, 13 L.Ed.2d 813 (1965); United States v. LaVallee, 391 F.2d 123 (2nd Cir. 1968).\nAlthough the case is not on point, we find the rationale employed by Justice Stewart in his concurring opinion in Stanley v. Georgia, 394 U.S. 557, 569, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), persuasive. In Stanley, an investigation of defendant\u2019s bookmaking activities led to the issuance of a warrant to search his home for evidence of such activities. The officers found very little evidence of bookmaking activity. However, they found reels of film, which they concluded were obscene matter in violation of Georgia law.\nAs in Stanley, what began as a perfectly lawful search in this case \u201cbecame the occasion for an unwarranted and unconstitutional seizure\u201d of tapes and a tape recorder. Id. at 570, 89 S.Ct. at 1250. In addition, the seizure of the tapes and recorder was not one as to which \u201cagents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence in plain view.\u201d (Footnote omitted.) Id. at 571, 89 S.Ct. at 1251. The contents of the tapes, like the contents of the film in Stanley, could not be determined by mere inspection.\nThe warrant here authorized the seizure of marijuana and nude photographs. The warrant gave the officers no authority to seize the tapes or recorder. Their authority did not extend beyond that conferred by the warrant. Marron v. United States, supra; State v. Paul, supra. In addition, we feel there was no basis for a warrantless seizure of the tapes and recorder. The record does not show that these items were seized on the grounds that the officers believed them to be illegally possessed property. See State v. Bell, 90 N.M. 160, 560 P.2d 951 (Ct.App.1977), cert. denied, 90 N.M. 254, 561 P.2d 1347 (1977). The seizure of the tapes and recorder was based upon a suspicion of criminal conduct; it was not based upon knowledge of any previous criminal activity. See State v. James, 91 N.M. 690, 579 P.2d 1257 (Ct.App.1978), cert. denied, 91 N.M. 751, 580 P.2d 972 (1978). \u201c[T]he mere suspicion or expectation that an, item may prove, in some unknown way, incriminating to a defendant is not sufficient justification for the seizure of the item. (Footnote omitted.)\u201d 68 Am. Jur.2d Searches and Seizures \u00a7 85 (1973).\nBecause the tapes and recorder were seized in violation of the Fourth and Fourteenth Amendments, they were inadmissible in evidence at defendant\u2019s trial. We hold, therefore, that the district court erred in denying defendant\u2019s motion to suppress those items.\nII. Admission of the Affidavit\nThe second issue we address is whether the district court erred in admitting Lundy\u2019s affidavit for the search warrant. The affidavit had been marked as defendant\u2019s Exhibit A. It had not been admitted into evidence. By some oversight, the affidavit was viewed by certain jurors. Defendant moved for a mistrial upon learning of this situation. The motion was denied. The court then admitted the affidavit into evidence. Defendant argues that the admission of the affidavit constitutes reversible error because it presented prejudicial hearsay testimony against defendant.\nWe have compared the information contained in the affidavit with Lundy\u2019s testimony. The information contained in the affidavit was not fully brought out in Lundy\u2019s testimony. We are of the opinion that the affidavit was not handled properly. It may well be that the affidavit interjected such objectionable material that it prejudiced defendant\u2019s case. We cannot say that its admission was not prejudicial to defendant. \u2022\nFor the foregoing reasons, defendant\u2019s conviction is hereby reversed. The cause is remanded to the district court for a new trial to be held consistent with this opinion.\nIT IS SO ORDERED.\nEASLEY and PAYNE, JJ., concur.", "type": "majority", "author": "SOSA, Chief Justice." } ], "attorneys": [ "Reginald J. Storment, Appellate Defender, Santa Fe, for defendant-appellant.", "Toney Anaya, Atty. Gen., Michael A. Kauffman, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "599 P.2d 1045\nSTATE of New Mexico, Plaintiff-Appellee, v. Frank F. TURKAL, Defendant-Appellant.\nNo. 12158.\nSupreme Court of New Mexico.\nSept. 21, 1979.\nReginald J. Storment, Appellate Defender, Santa Fe, for defendant-appellant.\nToney Anaya, Atty. Gen., Michael A. Kauffman, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0248-01", "first_page_order": 294, "last_page_order": 298 }