State v. Perea

COURT OF THE STATE OF NEW MEXICO 1

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The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-

112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.

IN THE SUPREME

Opinion Number:

Filing Date: June 5, 2025

NO. S-1-SC-39309

STATE OF NEW MEXICO,

Plaintiff-Respondent, v.

MICHELLE L. PEREA,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI

Angie K. Schneider, District Judge

Law Offices of the Public Defender Bennett J. Baur, Chief Public Defender Kimberly Chavez Cook, Appellate Defender Carrie Cochran, Assistant Appellate Defender Santa Fe, NM

for Petitioner

Office of the Attorney General

Hector H. Balderas, Attorney General Meryl E. Francolini, Assistant Attorney General Santa Fe, NM

for Respondent 22

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OPINION 1

BACON, Justice. 2

{1} This case requires us to determine whether information provided by a 3 confidential informant (CI) in an application for a search warrant satisfies the 4 requirement of probable cause for a search warrant under Article II, Section 10 of 5 the New Mexico Constitution. Rule 5-211(E) NMRA requires probable cause to be 6

"based on substantial evidence, which may be hearsay in whole or in part, provided 7 there is a substantial basis for believing the source of the hearsay to be credible and 8 for believing that there is a factual basis for the information furnished." Our rule 9 codifies the requirements of Aguilar v. Texas, 378 U.S. 108 (1964) (abrogated by 10 Illinois v. Gates, 462 U.S. 213 (1983)), and Spinelli v. United States, 393 U.S. 410 11 (1969) (same abrogation). The United States Supreme Court subsequently 12

"abandon[ed]" the Aguilar-Spinelli test in favor of a "totality of the circumstances 13 analysis" in Gates, 462 U.S. at 238, but we continue to follow the two-prong test set 14 forth in Aguilar-Spinelli because it more closely "effectuates the principles behind 15 Article II, Section 10" of the New Mexico Constitution. State v. Cordova, 1989-16 NMSC-083, ¶ 17, 109 N.M. 211, 784 P.2d 30. 17

{2} Under Rule 5-211(E), when an affidavit for a search warrant relies on a CI's 18 hearsay in whole or in part, the affidavit must set forth both (1) a substantial basis 19

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for believing the informant to be credible and (2) a substantial basis for the reliability 1 of the information provided by the informant. Id. ¶ 11. This case concerns only the 2 second requirement, as there is no dispute about whether the informant is credible. 3 For the reasons stated, we affirm the Court of Appeals' memorandum opinion which 4 reversed the district court and held the affidavit supporting the search warrant 5 contained sufficient facts to enable the magistrate court to find probable cause. See 6 State v. Perea, A-1-CA-38407, mem. op. ¶¶ 14-15 (N.M. Ct. App. Mar. 7, 2022) 7 (nonprecedential). We write, however, to clarify the proper reasoning. 8

I. BACKGROUND 9

{3} The affidavit for search warrant in this case was submitted by an agent 10 assigned to the Otero County Narcotics Enforcement Unit of the Alamogordo Police 11 Department and relies on information provided by a CI. The affidavit relevantly 12 states: 13

• Affiant learned from a documented confidential reliable informant, 14 hereinafter referred to as CI, that within the last 72 hours, a quantity 15 of Methamphetamine seen by the CI consistent with trafficking has 16 been seen by the CI at[] 1712 North Florida Avenue, Alamogordo, 17 Otero County, New Mexico, which is being handled by a female 18 subject identified as [Defendant-Petitioner] Michelle Perea 19 [(Petitioner)] . . . . CI stated [Petitioner] keeps a continuous supply 20 of illicit narcotics at her residence and on her person[] at all times. 21

• The CI is reliable in that the CI has given information, which has 22 been corroborated, and was proven to be accurate. The CI has given 23

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information involving narcotics and houses which sell narcotics. 1 The CI has made controlled substance buys for the Otero County 2 Narcotics Enforcement Unit in Otero County, New Mexico. 3

• Affiant knows the CI is familiar with what Methamphetamine looks 4 like, how it is packaged and sold, as the CI is an admitted past user 5 of illicit drugs. Affiant questioning the CI carefully regarding drug 6 trafficking and the appearance, price, use and effects of various 7 street drugs. The CI's Answer's [sic] demonstrated extensive 8 knowledge about street drugs, including methamphetamine. 9 Based on the affidavit, a magistrate judge issued a search warrant for evidence of 10 trafficking controlled substances. 11

{4} When agents executed the search warrant, they uncovered 0.5 grams of 12 suspected methamphetamine and paraphernalia, including numerous hypodermic 13 syringes, a digital scale, empty jeweler baggies, and several glass and plastic 14 smoking devices in Petitioner's garage, vehicle, and on her person. Petitioner was 15 arrested and transported to a detention center, where officers located a baggie 16 containing another 1.4 grams of suspected methamphetamine hidden in her 17 underwear. An indictment was subsequently filed charging Petitioner with 18 possessing methamphetamine and drug paraphernalia. 19

{5} Petitioner filed a pretrial motion to suppress, arguing the affidavit failed to 20 demonstrate the basis of the CI's knowledge, citing purported deficiencies 21 comparable to those identified in State v. Belknap, A-1-CA-35195, mem. op. ¶¶ 13-22

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15 (N.M. Ct. App. Mar. 6, 2017) (nonprecedential). Petitioner argued the affidavit 1 simply recited that in the past seventy-two hours the CI saw "a quantity of 2 methamphetamine consistent with trafficking" without "show[ing] the conditions 3 under which the informant made his/her observations, the quantity of 4 methamphetamine allegedly seen or how it was packaged[,] which might indicate an 5 intent to distribute." Petitioner cited these alleged deficiencies as "the very defect" 6 in Belknap that was the basis for reversal of the denial of the motion to suppress in 7 that case. Petitioner also argued the warrant was overbroad, asserting without 8 authority that a search warrant "should define a place to be searched rather than a 9 person to be searched." 10

{6} The State responded that the affidavit established the CI had personal 11 knowledge from first-hand observations of methamphetamine in Petitioner's home 12 in an amount consistent with trafficking and of methamphetamine on her person. 13 The State argued such personal knowledge constitutes "the gold standard of basis of 14 knowledge in the law" and thus the affidavit demonstrated an adequate basis of 15 knowledge. Regarding overbreadth, the State highlighted Petitioner's lack of 16 authority for the assertion and argued neither the warrant nor execution of the search 17 were improper as to create a basis for suppression. 18

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{7} The district court granted Petitioner's motion, acknowledging the "CI's 1 veracity or credibility" but finding the basis-of-knowledge prong was not satisfied. 2 Specifically, the district court found the affidavit deficient under Belknap, because 3 the affidavit failed to state the amount of methamphetamine or how the CI knew the 4 quantity was "consistent with trafficking"; failed to show the conditions under which 5 the CI made these observations, the quantity of methamphetamine allegedly seen, or 6 how it was packaged; and failed to provide evidence that the CI had seen Petitioner 7 make any sales of methamphetamine.¹The State appealed. 8

{8} In reversing the district court, the Court of Appeals limited its review to 9 determining if the affidavit sufficiently established the CI's basis-of-knowledge 10 prong, as both parties agreed the informant-veracity prong of Rule 5-211(E)'s basis 11 for finding probable cause was satisfied. Perea, A-1-CA-38407, mem. op. ¶ 6. In its 12 analysis, the Perea Court reached three relevant conclusions supporting reversal. Id. 13 ¶¶ 8-14. 14

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{9} First, the Court of Appeals recognized the importance of the CI's "first-hand 1 observation of the methamphetamine at [Petitioner's] home," in concert with the 2 CI's familiarity and "'extensive knowledge'" regarding methamphetamine. Id. ¶ 8. 3 The Court, citing three Court of Appeals cases, stated that "[i]t is well-established 4 that first-hand observations satisfy the basis of knowledge requirement." Id. ¶¶ 8, 5

13. Under this proposition, the Court found the affidavit established a sufficient basis 6 for the CI's knowledge. Id. ¶ 13. 7

{10} We note the Perea Court supported this first conclusion by purporting to 8 correct the district court's reading of Belknap. As we discussed, the district court 9 relied on that nonprecedential case in finding the affidavit here deficient for lack of 10 additional detail regarding the basis of the CI's knowledge. Attempting to 11 distinguish Belknap, the Court of Appeals stated that, because the Belknap 12 informant's first-hand observation pertained to marijuana, personal observation 13

"was inadequate to establish probable cause because marijuana at that time could be 14 legally possessed in certain limited circumstances." Perea, A-1-CA-38407, mem. 15 op. ¶ 10. 16

{11} In its second relevant conclusion, contrary to the district court's concerns 17 regarding level of specificity, the Perea Court determined the affidavit was 18 sufficiently specific to support a reasonable belief Petitioner was in possession of 19

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contraband. Perea, A-1-CA-38407, mem. op. ¶ 12. The Court concluded that it was 1

"not clear that such specificity is required in the circumstances present in this case" 2 because under "a common-sense reading of the affidavit . . . the CI's visual 3 observation supplies [a sufficient] basis of knowledge." Id. 4

{12} Third, the Court of Appeals rejected the district court's concern that the 5 affidavit did not include the CI having seen Petitioner selling methamphetamine. Id. 6 ¶ 13. Citing State v. Ramirez, 1980-NMCA-108, ¶¶ 3-4, 95 N.M. 202, 619 P.2d 1246, 7 the Court of Appeals concluded that, "[w]hile this omission may diminish the value 8 of the CI's basis of knowledge somewhat, . . . the CI's first-hand observation of 9 [Petitioner] possessing methamphetamine was [nonetheless] sufficient to establish 10 probable cause." Perea, A-1-CA-38407, mem. op. ¶ 13. 11

{13} Petitioner timely appealed, and we granted certiorari to determine whether the 12 Court of Appeals erred in concluding there was a substantial basis to support a 13 finding of probable cause for the search warrant. 14

II. DISCUSSION 15

A. Standard of Review 16

{14} This Court reviews the issuance of a search warrant under a substantial basis 17 standard. State v. Haidle, 2012-NMSC-033, ¶ 10, 285 P.3d 668. Limiting our review 18 to the four corners of the affidavit, id. ¶ 40, we "must determine whether the affidavit 19

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as a whole, and the reasonable inferences that may be drawn therefrom, provide a 1 substantial basis for determining that there is probable cause," State v. Williamson, 2 2009-NMSC-039, ¶ 29, 146 N.M. 488, 212 P.3d 376. 3

{15} "The substantial basis standard of review is more deferential than the de novo 4 review applied to questions of law, but less deferential than the substantial evidence 5 standard applied to questions of fact." State v. Gurule, 2013-NMSC-025, ¶ 16, 303 6 P.3d 838 (brackets, internal quotation marks, and citation omitted). A reviewing 7 court should pay "'great deference'" to the "'magistrate's determination of probable 8 cause,'" Williamson, 2009-NMSC-039, ¶ 17 (quoting Gates, 462 U.S. at 236), and 9

"should not substitute its judgment for that of the issuing court," id. ¶ 29. "When the 10 factual basis for the warrant is sufficiently detailed in the search warrant affidavit 11 and the issuing court has found probable cause, the reviewing courts should not 12 invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a 13 commonsense, manner." State v. Price, 2020-NMSC-014, ¶ 13, 470 P.3d 265 14 (internal quotation marks and citation omitted). "This deferential standard of review 15 is appropriate to further the . . . strong preference for searches conducted pursuant 16 to a warrant and to encourage police officers to procure a search warrant." Gurule, 17 2013-NMSC-025, ¶ 16 (omission in original) (internal quotation marks and citation 18 omitted). 19

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{16} Still, "the substantial basis standard is not tantamount to rubber-stamping the 1 decision of the issuing court and does not preclude the reviewing court from 2 conducting a meaningful analysis of whether the search warrant was supported by 3 probable cause." Williamson, 2009-NMSC-039, ¶ 30. "While we give deference to 4 a magistrate's decision, and to an officer's observations, experience, and training, 5 their conclusions must be objectively reasonable under all the circumstances." 6 Haidle, 2012-NMSC-033, ¶ 13 (brackets, internal quotation marks, and citation 7 omitted). The requirement for objective reasonableness is "especially important 8 when dealing with the search of a home," the privacy of which is afforded the highest 9 level of constitutional protection. Id. (internal quotation marks and citation omitted). 10

B. Analysis 11

{17} Article II, Section 10 of the New Mexico Constitution expressly directs that a 12 warrant to search any place shall not issue "without a written showing of probable 13 cause." In order for an affidavit for search warrant to satisfy the requirement for 14 probable cause, the affidavit "must show: (1) that the items sought to be seized are 15 evidence of a crime; and (2) that the criminal evidence sought is located at the place 16 to be searched." Price, 2020-NMSC-014, ¶ 14 (internal quotation marks and citation 17 omitted). The written showing of probable cause must be presented by the police to 18 a neutral and detached magistrate or judge and contain sufficient detail to enable the 19

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magistrate or judge to make an independent judgment on whether there is probable 1 cause. Cordova, 1989-NMSC-083, ¶¶ 4-5. 2

{18} In recognition of the foregoing requirements, Rule 5-211(E) requires that 3 probable cause "shall be based on substantial evidence" and that the substantial 4 evidence "may be hearsay in whole or in part, provided there is a substantial basis 5 for believing the source of the hearsay to be credible and for believing that there is 6 a factual basis for the information furnished." Because there is no dispute the 7 affidavit here satisfies the former "veracity" prong, we only address the latter, the 8

"basis of knowledge" prong of the rule. 9

{19} Petitioner relies on the nonprecedential memorandum opinion Belknap in 10 arguing the Perea Court erred. Petitioner primarily suggests the Court of Appeals 11 erred by not applying the basis-of-knowledge requirements in Belknap, as the 12 affidavits in both cases lacked the same detail: "There is no description of an 13 approximate amount, how it was packaged, or whether the CI ever observed the 14 actual sale of methamphetamine." Petitioner also relies on these additional 15 requirements in Belknap to challenge the Court of Appeals' conclusion that "the CI's 16 first-hand knowledge, alone, is sufficient to satisfy the 'basis of knowledge' prong." 17 Additionally, Petitioner points to the Court of Appeals' misreading of Belknap as 18 relevant error: that is, the Perea Court did not recognize the probable cause 19

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determination in Belknap was made without consideration that marijuana possession 1 was then legal under certain circumstances. 2

{20} The State argues the Court of Appeals was correct in holding the affidavit 3 satisfied the basis-of-knowledge prong. Asserting personal observations "are 4 generally sufficient to establish a basis of knowledge," the State claims the affidavit 5 established "the CI gathered information of [Petitioner's] illegal activity in a reliable 6 way—through first-hand, personal observation inside [Petitioner's] home." 7 Challenging the district court's contrary conclusion under Belknap, the State quotes 8 Cordova for the proposition that "technical requirements of elaborate specificity 9 have no proper place in a court's evaluation." 1989-NMSC-083, ¶ 15; see also 10 United States v. Ventresca, 380 U.S. 102, 108 (1965) ("Technical requirements of 11 elaborate specificity once exacted under common law pleadings have no proper 12 place in this area."). Additionally, the State argues the Court of Appeals correctly 13 distinguished the Belknap affidavit from the affidavit here, pointing to marijuana 14 possession being legal under certain circumstances whereas methamphetamine 15 possession is categorically illegal. 16

{21} We hold the affidavit was sufficient to establish probable cause for the warrant 17 issued in this case and the Court of Appeals did not err in reversing the district court. 18 However, we also determine the Court of Appeals erred in its construal of Belknap 19

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and in its overstatement of the sufficiency of first-hand observation in establishing 1 the basis of knowledge. Because these errors are not fatal to the Court's otherwise 2 correct analysis, we affirm. 3

1. The Perea Court's reversal of the grant of the motion to suppress 4

comports with Cordova and State v. Baca, 1982-NMSC-016, 97 N.M. 379, 5

640 P.2d 485 6

{22} We analyze the Perea Court's memorandum opinion here to determine 7 whether the Court erred in determining the affidavit provided probable cause for the 8 issuing court. The crux of the Court's analysis is that the basis-of-knowledge 9 requirement of Rule 5-211(E) can be satisfied by first-hand observations and was 10 satisfied in this case by the CI's first-hand observation of methamphetamine at 11 Petitioner's residence. See Perea, A-1-CA-38407, mem. op. ¶ 8. This analysis is 12 sound under Cordova and Baca. 13

{23} Cordova relevantly analyzed and applied the Aguilar-Spinelli basis-of-14 knowledge prong set forth in Rule 5-211(E). Cordova, 1989-NMSC-083, ¶¶ 17-25; 15 see id. ¶ 6 ("Although an affidavit may be based wholly or in part on hearsay 16 provided by an unnamed informant, 'the magistrate must be informed of some of the 17 underlying circumstances from which the informant concluded that the facts were 18 as he claimed they were.'" (emphasis added) (brackets omitted) (quoting Aguilar, 19

378 U.S. at 114)). First, citing Aguilar's analysis of the insufficient affidavit in that 20

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case, the Cordova Court illustrated that the basis-of-knowledge prong is not satisfied 1 by mere assurances or conclusory statements. See id. ¶ 7 ("[T]he [Aguilar] Court 2 held an affidavit to be insufficient to support a search warrant when it stated simply 3 that 'Affiants have received reliable information from a credible person and do 4 believe' that illegal drugs and paraphernalia were being kept at a particular 5 residence."). This proposition is well established in our caselaw. See id. ¶ 23; see 6 also Baca, 1982-NMSC-016, ¶ 16 ("The most that may be ascertained from the 7 affidavit is that the informant stated that he had 'first hand personal knowledge' of 8 the information he provided to the affiant. This is insufficient." (emphasis added) 9 (citation omitted)). In contrast, the CI's first-hand observations here—"within the 10 last 72 hours a quantity of [m]ethamphetamine seen by the CI consistent with 11 trafficking has been seen by the CI at [Petitioner's residence]"—provide specific 12 circumstances from which the issuing magistrate could conclude a sound factual 13 basis for the allegations of wrongdoing in the affidavit. 14

{24} Second, citing Spinelli and United States v. Draper, 358 U.S. 307 (1959), the 15 Cordova Court implicitly affirmed that personal knowledge, including through first-16 hand observation, may be sufficient to satisfy the basis-of-knowledge prong, 17 including where the affidavit contains "self-verifying" detail. See Cordova, 1989-18 NMSC-083, ¶ 9 ("[E]ven when an affidavit does not affirmatively state an 19

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informant's basis of knowledge, it may be inferred that an informant who otherwise 1 is known to be credible obtained the information set forth in the affidavit in a reliable 2 fashion if the tip contains enough detail to be self-verifying." (citing Spinelli, 393 3 U.S. at 417)); id. ¶ 9 n.3 (citing Draper). Cordova illustrated self-verifying detail as 4

"of a kind that generally would have been known only by someone intimately 5 connected" with the wrongdoing alleged in an informant's tip. 1989-NMSC-083, ¶ 6 9 & n.3. 7

{25} As explained in Spinelli, such detail allows a magistrate to "know that he is 8 relying on something more substantial than a casual rumor circulating in the 9 underworld or an accusation based merely on an individual's general reputation." 10

393 U.S. at 416. As "a suitable benchmark," the Spinelli Court pointed to Draper, 11 in which the informant's specificity of detail regarding the defendant's criminal 12 scheme, appearance, and schedule created a reasonable basis for concluding that his 13 information was based on personal knowledge. Id. at 416-17 ("A magistrate, when 14 confronted with such detail, could reasonably infer that the informant had gained his 15 information in a reliable way."); see Cordova, 1989-NMSC-083, ¶ 9 n.3 ("By 16 analogy, the Spinelli Court posited that a magistrate confronted with the tip 17 considered in Draper could have concluded that the tip was based on personal 18 knowledge without an affirmative statement to that effect."). 19

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{26} Importantly, Spinelli requires assurance that the information in an affidavit 1 was "obtained . . . in a reliable fashion," which may be confirmed through sufficient 2 detail establishing personal knowledge. Cordova, 1989-NMSC-083, ¶ 9. In other 3 words, the detail in Draper confirmed the informant's claims were reliable based on 4 his personal knowledge rather than on rumor or reputation. It follows that an issuing 5 court may find a sufficient basis of knowledge for a search warrant when sufficient 6 detail confirms a CI's personal knowledge. The affidavit in Cordova provides a 7 contrasting example, wherein the CI provided specific detail describing a suspect 8 from out of town, his car, and the house the suspect purportedly was visiting, but 9 none of that detail could verify the alleged heroin possession. 1989-NMSC-083, ¶¶ 10 2, 24-25 ("[T]he affidavit in essence asked the magistrate to believe the informant 11 was reliable merely because the house and car existed, and further asked the 12 magistrate to believe that because the house and car existed, the man and the heroin 13 probably did as well."). The Cordova Court accordingly held the affidavit did not 14 establish a substantial basis of knowledge under Rule 5-211(E). Id. ¶ 25. 15

{27} As cited in Cordova, Baca supports that first-hand observation alone can 16 constitute a substantial basis for a CI's knowledge to establish probable cause. See 17 id. ¶ 9 (citing Baca, 1982-NMSC-016, ¶ 18 (citing Spinelli)). As in Cordova, the 18 affidavit in Baca lacked detail of criminal activity to establish a basis of knowledge 19

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for the CI's assertion that criminal activity was afoot. Baca, 1982-NMSC-016, ¶ 18 1 ("All that is stated by the informant describes innocent activity."); id. ¶ 19 (same) 2 (citing Draper). However, in the course of its analysis, the Baca Court highlighted 3 the role first-hand observation can play in satisfying the basis-of-knowledge 4 requirement: 5

In order to assist the judge in making [a probable cause] determination, 6 it is necessary that the affidavit provide a factual basis for the 7 informant's personal knowledge, such as observations or dealings with 8 the defendant. . . . A judge cannot ascertain from a reading of the 9 affidavit [in Baca] whether the informant knows the parties named in 10 the affidavit, has actually seen the defendant carry a .32 caliber pistol, 11 drive the Chevrolet, or whether the informant bases his information on 12 mere hearsay or rumor. 13

Id. ¶¶ 16-17 (emphasis added). 14

{28} We read the foregoing analysis in Cordova and Baca to support the essential 15 legal premise relied on by the Court of Appeals in this case: first-hand observation 16 can provide substantial evidence to satisfy the basis-of-knowledge prong in Rule 5-17 211(E). Stated more broadly, Cordova and Baca support the proposition that a 18 sufficient basis of knowledge for probable cause can be established through different 19 forms of "personal knowledge, [including first-hand] observations." Baca, 1982-20 NMSC-016, ¶ 16. 21

{29} Applying this proposition to the facts, we determine the Court of Appeals in 22 Perea did not err in concluding substantial evidence supported the magistrate court's 23

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finding of probable cause. The Court of Appeals properly relied on the affidavit, 1 which "state[d], in pertinent part, that 'within the last 72 hours, a quantity of 2 [m]ethamphetamine seen by the CI consistent with trafficking has been seen by the 3 CI at [a residence], which is being handled by [Petitioner]' and that '[Petitioner] 4 keeps a continuous supply of illicit narcotics at her residence and on her person[] at 5 all times.'" Perea, A-1-CA-38407, mem. op. ¶ 8 (second and third alterations in 6 original). In combination with the CI's credibility, the affidavit identified that the CI 7 personally observed an illegal substance, in quantities sufficient to indicate illegal 8 activity, and therefore provided sufficient factual detail from which the magistrate 9 court could reasonably infer "probable cause to believe that a search [would] 10 uncover evidence of wrongdoing." Williamson, 2009-NMSC-039, ¶ 29; see id. ¶ 17 11 ("[T]he Fourth Amendment [to the United States Constitution] requires no more."). 12

{30} Additionally, our recognition of the potential sufficiency of first-hand 13 observation in basis-of-knowledge analysis under Rule 5-211(E) comports with 14 relevant interests articulated in our probable cause jurisprudence. As Cordova 15 recited, 16

[O]n issues of probable cause to support a warrant: "(1) only a 17 probability of criminal conduct need be shown; (2) there need be less 18 vigorous proof than the rules of evidence require to determine guilt of 19 an offense; (3) common sense should control; and (4) great deference 20 should be shown by courts to a magistrate's determination of probable 21 cause." 22

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1989-NMSC-083, ¶ 15 (citation omitted). We have also quoted the United States 1 Supreme Court regarding the "'practical and not abstract'" requirements of the 2 Fourth Amendment for affidavits to show probable cause in support of a search 3 warrant, which are equally relevant to Article II, Section 10: "'[A]ffidavits for search 4 warrants . . . must be tested and interpreted by magistrates and courts in a 5 commonsense and realistic fashion. . . . A grudging or negative attitude by reviewing 6 courts toward warrants will tend to discourage police officers from submitting their 7 evidence to a judicial officer before acting.'" State v. Snedeker, 1982-NMSC-085, ¶ 8 23, 99 N.M. 286, 657 P.2d 613 (second omission in original) (quoting Ventresca, 9

380 U.S. at 108); cf. Gurule, 2013-NMSC-025, ¶ 16 ("In situations that present 10 doubtful or marginal cases of probable cause, the reviewing court should resolve the 11 issue by giving preference to the warrant."). The foregoing demonstrates, contrary 12 to the dissent's concluding assertions, that the affidavit here "contain[ed] sufficient 13 facts to enable the issuing magistrate independently to pass judgment on the 14 existence of probable cause." Cordova, 1989-NMSC-083, ¶ 5. 15

{31} The dissent, while conceding the CI's first-hand observations established a 16 sufficient basis of knowledge for possession of methamphetamine, asserts the 17 affidavit is nonetheless insufficient to establish probable cause because law 18 enforcement sought a search warrant for trafficking. This position ignores the 19

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standard articulated in Williamson and Gates requiring that the issuing "'magistrate 1 had a substantial basis for concluding that a search would uncover evidence of 2 wrongdoing,'" not of a particular crime. Williamson, 2009-NMSC-039, ¶ 17 3 (emphasis added) (ellipsis and brackets omitted) (quoting Gates, 462 U.S. at 236). 4 Despite the dissent's insistence that we must reach the issue of the affidavit's 5 sufficiency as to trafficking, "'the Fourth Amendment requires no more'" than such 6 evidence of wrongdoing. Id. (quoting Gates, 462 U.S. at 236). To be clear, because 7 the affidavit provides a sufficient basis of knowledge for concluding a search would 8 uncover evidence of a crime—in this case, possession of methamphetamine—we 9 need not analyze whether the affidavit also provided a basis of knowledge for an 10 additional crime. Because the dissent misstates our holding—characterizing that 11

"probable cause for crime X automatically equates to probable cause for crime Y"—12 we reiterate that our review of the issuing court's judgment does not reach the issue 13 of whether the affidavit satisfies the basis-of-knowledge prong for trafficking. 14

{32} Invoking the New Mexico Constitution, the dissent cites inapposite and 15 nonbinding cases to suggest that the affidavit's purported failure as to trafficking 16 renders the warrant unconstitutional. However, none of the cited precedential cases 17 address a situation on point to the dissent's implicit assertion here—that an affidavit 18 is unconstitutional when insufficiently particular for a broader claim of wrongdoing 19

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while sufficiently particular for a narrower and obviously included claim of 1 wrongdoing. See Haidle, 2012-NMSC-033, ¶ 36 (concerning a search warrant 2 seeking evidence "of a murder"); Williamson, 2009-NMSC-039, ¶ 35 (concerning a 3 search warrant for a package suspected to contain illegal narcotics); see also State v. 4 Sabeerin, 2014-NMCA-110, ¶ 26, 336 P.3d 990 (ruling an affidavit insufficiently 5 particular in seeking "any and all evidence which may lead investigators to the 6 offender(s) and or possible witnesses in this case"); State v. Jones, 1988-NMCA-7 058, ¶ 7, 107 N.M. 503, 760 P.2d 796 (ruling an affidavit provided probable cause 8 for seizure of defendant's business records as evidence of receiving stolen property). 9 To highlight the distinction, we reiterate the obvious here: as presented through the 10 CI's first-hand observations, the affidavit's claims regarding trafficking necessarily 11 included possession of methamphetamine, which substance was specified among the 12 items to be seized and searched for under the warrant.²13

{33} The dissent further cites Gurule, 2013-NMSC-025, ¶ 15, and United States v. 14 Galpin, 720 F.3d 436, 445-46 (2d Cir. 2013), to support that, "because the agent in 15 this case was seeking a search warrant for trafficking, the warrant had to show 16

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probable cause for trafficking." Dissent ¶¶ 54-55. However, the cited paragraph in 1 Gurule quotes a treatise, not our constitution, and says nothing supporting the 2 dissent's heightened requirement. To the contrary, the affidavit here satisfies Gurule 3 by establishing a "nexus" between criminal activity of methamphetamine 4 possession, things to be seized including methamphetamine, and the place to be 5 searched of Petitioner's residence, all directly supported by the CI's first-hand 6 observations. See Gurule, 2013-NMSC-025, ¶ 15. As for Galpin, the Second Circuit 7 stated that "a warrant must identify the specific offense for which the police have 8 established probable cause" as a component of preventing "[t]he chief evil that 9 prompted the framing and adoption of the Fourth Amendment": "indiscriminate 10 searches and seizures." 720 F.3d at 445 (internal quotation marks and citation 11 omitted). To illustrate the value of this component, the Galpin Court cited cases 12 wherein a warrant "made no mention of any criminal statute or criminal conduct" 13 and an overbroad warrant simply sought "evidence relating to the commission of a 14 crime." Id. (internal quotation marks and citation omitted). In contrast here, the 15 affidavit established a basis of criminal activity that was sufficiently particular—16 including methamphetamine to be seized—to assuage Galpin's concern regarding 17 general and indiscriminate searches. Contrary to the dissent's suggestion, these cases 18 do not demonstrate that our constitution requires a neutral and detached magistrate 19

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to ignore sufficient evidence for probable cause of methamphetamine possession in 1 an affidavit seeking a warrant for methamphetamine trafficking. 2

{34} Because here "the factual basis for the warrant is sufficiently detailed in the 3 search warrant affidavit and the issuing court has found probable cause," we 4 consider the dissent's heightened standard to "interpret[] the affidavit in a 5 hypertechnical, rather than a commonsense, manner," as prohibited by Price, 2020-6 NMSC-014, ¶ 13 (internal quotation marks and citation omitted). Under a 7 commonsense reading of the affidavit, the CI's first-hand observations established 8 sufficient detail of personal knowledge to support the magistrate's determination of 9 probable cause. Accordingly, we affirm the Court of Appeals in reversing the district 10 court. 11

2. The Perea Court's overstatement regarding first-hand observation does 12

not render its ruling infirm 13

{35} Notwithstanding our holding, we note the Court of Appeals presented its legal 14 premise, which we have just discussed, in terms that suggest a categorical rule: "It 15 is well-established that first-hand observations satisfy the basis of knowledge 16 requirement." Perea, A-1-CA-38407, mem. op. ¶ 8. While the CI's first-hand 17 observations were sufficient here, we clarify that neither our affirmance nor the cases 18 cited by the Court of Appeals in this context should be read to support that such 19 observations always or automatically satisfy the basis-of-knowledge prong. 20

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{36} The Court of Appeals in Perea cited its own precedent as relevant support. Id. 1 ¶¶ 8, 13 (citing State v. Barker, 1992-NMCA-117, ¶ 5, 114 N.M. 589, 844 P.2d 839; 2 State v. Lujan, 1998-NMCA-032, ¶ 12, 124 N.M. 494, 953 P.2d 29; Ramirez, 1980-3 NMCA-108, ¶¶ 3-4). In Barker, the Court of Appeals considered an affidavit stating 4 the CI "while at this residence did observe first hand the defendant selling 5 marihuana" and otherwise "witnessed drugs being sold at that location." 1992-6 NMCA-117, ¶ 2. The Barker Court concluded the affidavit contained an adequate 7 basis of knowledge to support the search warrant, stating, "First-hand observations 8 by the informant serve to meet the 'basis of knowledge' prong of the Cordova test." 9 Id. ¶ 5 (citation omitted). Similarly in Lujan, the Court of Appeals determined, under 10

"a common-sense reading of the affidavit," that the CI's description of the controlled 11 buy therein included critical facts either seen by the CI or corroborated by the affiant 12 police officer, facts from which the issuing court could "infer sufficient first-hand 13 knowledge." 1998-NMCA-032, ¶ 12 ("[T]he informant entered the residence with 14 some money and no drugs and came out of the residence a few minutes later with 15 drugs and no money."). Similarly in Ramirez, the Court of Appeals found the 16 affidavit there satisfied the basis-of-knowledge prong through the CI's "personal 17 observation" of the defendant being in possession of heroin. 1980-NMCA-108, ¶ 4 18

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("The statement in the affidavit that the informant saw the defendant in possession 1 of heroin was sufficient to satisfy the first prong of the Aguilar test."). 2

{37} We approve the use of first-hand-observation evidence in these cases in 3 analyzing the basis-of-knowledge requirement in Rule 5-211(E). We reiterate, 4 however, that they do not establish a per se rule, as "[t]here are no 'bright-line, hard-5 and-fast rules' for determining probable cause." State v. Evans, 2009-NMSC-027, ¶ 6 11, 146 N.M. 319, 210 P.3d 216 (citation omitted); see, e.g., State v. Whitley, 1999-7 NMCA-155, ¶ 3, 128 N.M. 403, 993 P.2d 117 (concluding, notwithstanding first-8 hand-observation evidence, that "the affidavit did not contain sufficient information 9 of ongoing criminal activities and the information was therefore stale"). To the 10 contrary, we have clearly expressed above our recognition of the potential 11 sufficiency of personal knowledge of wrongdoing, including through first-hand 12 observation, in basis-of-knowledge analysis. 13

3. The Perea Court's misreading of Belknap does not render its ruling 14

infirm 15

{38} Attempting to distinguish Belknap, the Perea Court stated that, because the 16 Belknap informant's first-hand observation pertained to marijuana, that observation 17

"was inadequate to establish probable cause because marijuana at that time could be 18 legally possessed in certain limited circumstances." Perea, A-1-CA-38407, mem. 19 op. ¶ 10. The Perea Court attempted to establish a contrast here, noting "mere 20

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possession of methamphetamine is categorically prohibited in New Mexico." Id. ¶ 1

11. However, the Belknap Court made clear its probable cause analysis was made 2 without regard to the materiality of defendant's valid medical marijuana card 3 registration, the basis in 2017 under which marijuana possession could be legal. See 4 Belknap, A-1-CA-35195, mem. op. ¶¶ 7, 16. 5

{39} Petitioner attempts to cast this error as a basis for reversal, suggesting the 6 Perea Court's analysis additionally erred in not meeting the legal standard set by 7 Belknap. This argument does not avail. 8

{40} First, Belknap is a nonprecedential memorandum opinion. Accordingly, the 9 district court and the Court of Appeals were not bound by its reasoning and need not 10 have distinguished it in evaluating the affidavit at issue here. See Rule 12-405(A) 11 NMRA; N.M. Uninsured Emps.' Fund v. Gallegos, 2017-NMCA-044, ¶ 18 n.3, 395 12 P.3d 533 (stating that "unpublished memorandum opinions are not controlling 13 authority, and we need not distinguish nonprecedential cases"). 14

{41} Second, the Perea Court's misreading of Belknap was not part of the Court's 15 analysis underlying its holding. Instead, the Perea Court attempted to distinguish 16 that case merely in the course of refuting Petitioner's misplaced use of Belknap as 17 legal authority. See Perea, A-1-CA-38407, mem. op. ¶¶ 9-11 ("[I]n this case, it was 18 not necessary to demonstrate probable cause to believe [Petitioner] was engaged in 19

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