Police Investigation or Reports

This outline is designed to be used as a checklist for guidance in preparing an affidavit for a search warrant where the information comes from a police investigation.

When the information is from a police source other than the affiant’s personal observation.
1. Establish the basis for any information from a police source.
  (Provide as many of the following as possible.)
  1. Prior contact with suspect, known criminal history or criminal affiliations of suspect (gang member, known drug sale location).
  2. Information given in reports relevant to the suspect or place, including date of report, and time and date of reporting officer’s observations.
  3. If information is based on another officer’s observations establish the following:
    1. Who made the observation,
    2. What was observed,
    3. Where and how it was observed,
    4. That the officer was lawfully in the place from which the observation was made.
2. Identify and describe any non-police source relied upon by affiant during the investigation.
  1. Identify as citizen informant, confidential informant, or anonymous informant.
  2. Provide information required for that type of source – see relevant outline.
When the information is from personal observations by the affiant, describe the observations. (Include each of the following.)
1. Describe the observations.
  1. Describe what was observed.
  2. Establish reason for suspecting items observed are evidence of a crime.
2. Describe the circumstances of the observation.
  1. Provide the date and time of the personal observations of affiant.
  2. Describe where the items were located when affiant observed them.
  3. Establish that the affiant was lawfully in the place from which the observations were made.

A tip can be sufficient to support the existence of probable cause if the source satisfies the basis of knowledge and veracity requirements of the Aguilar–Spinelli test, meaning the affidavit provides a substantial basis for believing that any hearsay statements are credible and there is a factual basis for the information furnished.¹ See the outline regarding information from confidential informants, which discusses specifics for showing basis of knowledge and veracity for confidential informants (track record, self-incrimination, etc.).

Establish the basis for any information from a police source.

Police officers are permitted to rely on information contained in routine police reports, as when a search warrant affiant learns a suspect’s address from police department records.²

Identify and describe any non-police source relied upon by affiant during the investigation.

As for non-police sources of information, see the outline and summary regarding confidential informants for CI information in the affidavit. As for citizen informants, they are presumed reliable since their presumed motivation is to assist law enforcement officers.³ Any informant meets the basis of knowledge test by reporting first-hand observations made by the informant.⁴ See the outline and summary regarding citizen informants. A statement against the person’s own penal interest supports the reliability of a hearsay statement in a search warrant affidavit, as does independent police corroboration of details in the informant’s statement.⁵ A “controlled buy” establishes both the basis of knowledge and veracity requirements when a police officer observes the buyer enter premises without contraband and then exit with contraband.⁶

Describe observations made by the affiant.

The age or staleness of information in a search warrant affidavit is only relevant to the extent it affects the existence or lack thereof of present probable cause to search. Therefore, a court does not look to any alleged bad faith by the police officer affiant or the justification for any delay in using the information, but only asks whether the information in the affidavit is sufficient to establish that probable cause exists at the present time.⁷

With regard to information gained by a police officer from a plain view observation, the information is properly considered in establishing probable cause as long as the affidavit shows the officer was lawfully in a position to make the observation and had a reasonable basis for identifying the presence of contraband.⁸ Thus if a police officer is invited into a home, the officer is lawfully in a position to make a plain view observation.⁹ Likewise a police officer lawfully engaged in a community caretaking function is permitted to observe and report in an affidavit evidence of unlawful activity which supports the existence of probable cause to search.¹⁰

ENDNOTES

1 State v. Cordova, 1989-NMSC-083, ¶ 11, 109 N.M. 211, 784 P.2d 30; State v. Steinzig, 1999-NMCA-107, ¶ 17, 127 N.M. 752, 987 P.2d 409.

2 State v. Pargas, 1997-NMCA-110, ¶ 10, 124 N.M. 249, 948 P.2d 267.

3 In re Shon Daniel K., 1998-NMCA-069, ¶ 14, 125 N.M. 219, 959 P.2d 553; State v. Hernandez, 1990-NMCA-127, ¶¶ 5-6, 111 N.M. 226, 804 P.2d 417.

4 State v. Lujan, 1998-NMCA-032, ¶ 8, 124 N.M. 494, 953 P.2d 29.

5 Shon Daniel K., 1998-NMCA-069, ¶ 12.

6 Lujan, 1998-NMCA-032, ¶¶ 7-10.

7 Pargas, 1997-NMCA-110, ¶ 23.

8 State v. Williams, 1994-NMSC-050, ¶ 12-14, 117 N.M. 551, 874 P.2d 12.

9 State v. Cline, 1999-NMCA-154, ¶¶ 16, 18, 126 N.M. 77, 966 P.2d 785.

10 State v. Walters, 1997-NMCA-013, ¶ 10, 123 N.M. 88, 934 P.2d 282.