Search Warrant Affidavits Introduction
Both the Fourth Amendment and Article II, Section 10 of the New Mexico Constitution protect individuals against unreasonable searches and seizures by government officials. Both provisions require police to obtain a warrant before conducting a search or seizure. Both provisions allow warrantless searches and seizures when recognized exceptions to the warrant requirement apply. Both provisions limit exceptions to the warrant requirement to circumstances in which a warrantless search or seizure is reasonable. Under both provisions, the reasonableness of a warrantless search or seizure is measured by weighing the manner and degree of intrusion against the individual’s legitimate expectation of privacy.
In interpreting Article II, Section 10, however, New Mexico courts have concluded that New Mexico has a “strong preference for warrants.”1 Our strong preference for warrants means that warrantless searches are disfavored, and are to be avoided, particularly with respect to the home, where the individual’s expectation of privacy is at its highest. Our strong preference for warrants has caused New Mexico courts to recognize expectations of privacy that are not recognized under the Fourth Amendment.2 Our strong preference for warrants has prompted New Mexico courts to limit the exceptions to the warrant requirement, often beyond what is required by the Fourth Amendment.3 And because of our strong preference for warrants, our courts have imposed requirements on the process of obtaining a warrant that do not apply under the Fourth Amendment.4
Consequently, our courts have interpreted Article II, § 10 as requiring that “hen the application for a search warrant is based on an affidavit, the affidavit must contain sufficient facts to enable the issuing magistrate to independently” determine the existence of probable cause.5 “[P]robable cause is a flexible, common-sense standard.”6 As such, it merely requires
that the facts known to the officer seeking a warrant would justify a person of reasonable caution in believing the items sought are evidence of a crime and may be found on the premises to be searched.7 Probable cause “does not require that an officer’s belief be correct or more likely true than false. Rather, there need only be a probability that incriminating evidence is involved.”8
Thus, a showing of probable cause is a less rigorous standard than the standard of proof required at trial to convict.9
END NOTES
1 State v. Crane, 2014-NMSC-026, ¶ 16, 329 P.3d 689.
2 See State v. Granville, 2006-NMCA-098, ¶ 24, 140 N.M. 345, 142 P.3d 933. In Granville, the Court of Appeals held that, unlike the Fourth Amendment, Article II, Section 10 protects an individual from warrantless searches of his or her garbage. As a result, in New Mexico, officers must obtain a warrant to search through garbage left inside a garbage can at a residence, or in an opaque bag discarded in a motel garbage bin. Id. ¶¶ 25-27; see also Crane, 2014-NMSC-026, ¶ 34.
3 See State v. Rivera, 2010-NMSC-046, ¶ 16, 148 N.M. 659, 241 P.3d 1099. In Rivera, the Court held that police may search without a warrant a package that was opened by a private individual, but police must obtain a warrant before exceeding the scope of that private search. Id. In that case, a package opened by bus company employees was sent to a government agent, who not only re-opened the package, but also cut open the plastic- wrapped bundles contained in the package. Although the Fourth Amendment permits such action, under Article II, Section 10, the agent was required to obtain a warrant before cutting open the bundles. Id. ¶ 34.
4 See State v. Cordova, 1989-NMSC-083, ¶ 6, 109 N.M. 211, 784 P.2d 30.
5 Id. ¶ 5. The requirement of probable cause also applies to an application for an order permitting a wiretap. Therefore, an application for a wiretap is reviewed in the same manner as an affidavit for a search warrant. State v. Knight, 2000-NMCA-016, ¶ 13, 128 N.M. 591, 995 P.2d 1035.
6 State v. Williams, 1994-NMSC-050, ¶ 16, 117 N.M. 551, 874 P.2d 12, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.
7 Id.; State v. Steinzig, 1999-NMCA-107, ¶ 14, 127 N.M. 752, 987 P.2d 409.
8 Williams, 1994-NMSC-050, ¶ 16.
9 State v. Perea,1973-NMCA-123, ¶ 7, 85 N.M. 505, 513 P.2d 1287.