What Are Requirements for a Valid Search Warrants in Albuquerque, New Mexico?

 

Your home is provided with the strongest Constitutional protection against illegal searches and seizures. Police need a valid search warrant to enter and search your home unless they are able to demonstrate one of the narrowly defined circumstances that allow them to enter your home without a warrant. Today I will examine the search warrant itself. In particular, I will explain what a search warrant is, and the requirements for obtaining and enforcing a valid warrant.

 

WHAT IS A ALBUQUERQUE, NEW MEXICO SEARCH WARRANT?

 

A search warrant is a Court Order that is issued by a Judge providing Officers’ with permission to search you, your home, or a specified location, for evidence of a crime. The warrant provides Officers’ with the ability to confiscate any evidence that is found at the location identified in the Court Order in Albuquerque, New Mexico.

 

WHAT ARE THE REQUIREMENTS FOR A VALID SEARCH WARRANT IN NEW MEXICO?

 

A warrant must meet three hurdles to be enforceable: (1) It must be issued by a neutral and disinterested Judge; (2)The facts submitted to the Judge must demonstrate probable cause; and (3) It must describe the location and objects of the search with particularity.

 

Search Warrant in New Mexico —  Neutral and Detached

 

The first hurdle requires the Judge to be disinterested from the outcome of the case and to be neutral and detached from law enforcement. This element is easy to satisfy provided that the Judge is independent from the Police agency requesting the warrant. Nevertheless, the Supreme Court has ruled that a Judge is not neutral and detached from law enforcement if her only job is to issue warrants for Police agencies. Moreover, the state attorney general is not neutral and detached. Nevertheless, the issuing Judge almost invariably satisfies this first element.

 

Search Warrant in New Mexico — Probable Cause

 

The second hurdle requires the Judge to find probable cause to support the warrant. Typically the Officer will prepare an Affidavit – or a sworn statement – to provide the necessary probable cause to support the search warrant. The Affidavit can be based on the Officer’s direct knowledge, or by information that the Officer receives from an informant – i.e. through hearsay. The vast majority of Affidavits for search warrants are based on information provided to the Officer by an informant.

In New Mexico, Affidavits that are founded on information provided by an informant must contain facts that provide a substantial basis for believing that the statements are credible and for believing that there is a factual basis for the information provided in the affidavit. In other words, the Affidavit must demonstrate two elements: (I) the basis or the foundation for the information is reliable; and (II) that the informant and the information provided is reliable.

 

Search Warrants and Affidavits — Basis for the information

 

The Affidavit must set forth facts that demonstrate that the foundation for the statements in the Affidavit are reliable. For instance, is the information provided in the Affidavit first hand knowledge – i.e. did the informant personally witness evidence of the crime with their own eyes – or, is the informant simply relaying information provided by someone else – i.e. hearsay? Albuquerque, New Mexico Courts hold that the foundation for the Affidavit must come from the informant’s first hand and personal knowledge to satisfy this first element. Next, the Affidavit must demonstrate that the informant and the information provided is reliable.

 

Search Warrants and Affidavits — Veracity or Reliability of the Informant

 

Assuming that the foundation for the Affidavit is reliable, the State must demonstrate the reliability of the information and the informant. When the informant is not identified by name – a confidential informant – the Affidavit must establish sufficient information that demonstrates that the informant is telling the truth. The information is deemed reliable if it is supported by another source other than the informant – i.e. the information is supported by the Secret Service, Police observations, MVD records, etc. On the other hand, the reliability of the informant is typically found by demonstrating that the informant is a volunteer, citizen-informant. A volunteer, citizen-informant is either a victim or a witness of a crime, whose only motivation for providing the information is good citizenship to assist the police. Volunteer, citizen-informants are usually held to be reliable.

The third hurdle requires the warrant to be precise. To meet this requirement the warrant must describe with reasonable precision the place that will be searched, and the items that will be seized. The Police are bound by the location and the items named in the warrant, and any locations that are searched, or evidence that is seized that is not listed in the warrant will be inadmissible in Court. Nevertheless, any contraband or evidence of a crime that is found in the plain view of the Officer can be seized and form the basis for a subsequent warrant.

Assuming that the three hurdles above are satisfied only the Police – not private citizens – may enforce and execute the warrant. Moreover, the Police cannot be accompanied by the media, or a third party – unless the third party is there to identify stolen property that might be in the home. Additionally, if the warrant is not executed in a timely manner the probable cause for the warrant may begin to vanish. Lastly, Albuquerque, New Mexico follows a Knock and Announce Rule where the Police executing the warrant are required to announce their authority and purpose, and must wait a reasonable time before forcibly entering the home.

Matthew Legan Sanchez is an Albuquerque criminal defense attorney that practices criminal defense in Bernalillo County Metropolitan Court.