This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellant, 8

v. NO. 30,780 9 RENE BARRAZA MATA, 10 Defendant-Appellee. 11 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 Thomas J. Hynes, District Judge 13 Gary K. King, Attorney General 14 M. Anne Kelly, Assistant Attorney General 15 Santa Fe, NM 16 for Appellant 17 Chief Public Defender 18 Santa Fe, NM 19 for Appellee 20

MEMORANDUM OPINION 21 KENNEDY, Judge. 22 The State appeals an order granting Defendant’s motion to suppress. We 23 proposed to affirm in a notice of proposed summary disposition, and the State has 242 filed a memorandum in opposition. We remain unpersuaded by the State’s 1 arguments and affirm. 2 In its docketing statement, the State argued that the district court erred in 3 granting Defendant’s motion to suppress because the affidavit in support of the 4 warrant was sufficient to establish the know ledge and veracity or credibility of the 5 informant or informants. [DS 2] In our notice of proposed summary disposition, 6 we observed that a search warrant may only issue upon a finding of probable 7

cause. See State v. Nyce , 2006-NMSC-026, ¶ 9, 139 N.M. 647, 137 P.3d 587, 8 limited on other grounds by State v. Williamson , 2009-NMSC-039, ¶ 29, 146 N.M. 9 488, 212 P.3d 376; see alsoRule 5-211 NMRA. We will uphold an issuing court’s 10 determination of probable cause “if the affidavit provides a substantial basis to 11 support a finding of probable cause.” Williamson , 2009-NMSC-039, ¶ 29. We do 12 not substitute our judgment for “that of the issuing court [but instead we] 13 determine whether the affidavit as a whole, and the reasonable inferences that may 14 be drawn therefrom, provide a substantial basis for determining that there is 15 probable cause to believe that a search will uncover evidence of wrongdoing.” Id. 16 In Williamson , our Supreme Court explained that “the substantial basis standard of 17 review is more deferential than the de novo review applied to questions of law, but 183 less deferential than the substantial evidence standard applied to questions of fact.” 1 Id. ¶ 30. 2 In our previous notice, we set forth th e language of the affidavit prepared by 3 Officer Carl Sexton and dated June 10, 2010, in support of the warrant. [RP 71-74] 4 The affidavit states in part that: 5 On 4/15/10 an informant said he/she had been collecting money and 6 selling narcotics for various drug deal ers . . . includ[ing] [Defendant]. 7 The source said the narcotics that Jeremiah Wright was selling were 8 coming from [Defendant]. Wright is currently facing [trafficking 9 charges. [The informant] has s een ‘quantities of methamphetamine, 10 barrels of marijuana and large quantities of firearms’ at [Defendant’s 11 residence]. [Defendant] acquires guns from gang members and other 12 illegitimate sources in exchange for drugs. He/she said the guns are 13 collected throughout the year. 14 Officer Skinner informed me that a confidential and reliable informant 15 who is currently working on the task force informed him that he/she 16 was inside [Defendant’s] house approximately three weeks ago [and] 17 [t]he informant advised that he/s he stated that they observed 18 [Defendant] hold[ing] a large quantity of marijuana which he was 19 trying to sell to the informant. The informant said Giovanni “Kaos” 20 Bautista . . . a gang member . . . is currently doing . . . work for 21 [Defendant]. 22 On or about June 9, 2010, I received information from a confidential 23 and reliable informant that [Defendant] was in possession of and is 24 currently selling methamphetamine [and] the informant also advised 25 that [Defendant] is in possession of a black ‘assault’ rifle and two 26 ‘handguns.’ This informant has proven to be reliable twice in the 27 past

. 28 The confidential and reliable informant called and informed me that 29 [Defendant] purchased approximately seven ounces of 304 methamphetamine from a ‘Theresa Velasquez’ and was selling it to 1 unknown clients who stop at his house [.] 2 On June 9, 2010[,] while conduc ting surveillance on [Defendant’] 3 house at approximately 15:30 hours, Giovanni was seen conversing 4 with [Defendant] in front of [Defendant’s] residence. 5 [RP 73-74 (emphasis added)] 6 We then proposed to agree with the di strict court that foregoing material is 7 insufficient to support the magistrate’s probable cause determination because it 8 failed to establish the basis of th e informant’s knowledge, and it failed to 9 demonstrate the veracity or credibility of the informant. See State v. Cordova , 109 10 N.M. 211, 213, 784 P.2d 30, 32 (1989) (adopting the two-prong test formulated by 11 the “ Aguilar-Spinellitest” articulated by the Unites States Supreme Court in 12 Aguilar v. Texas , 378 U.S. 108 (1964), andSpinelli v. United States , 393 U.S. 410 13 (1969), which requires the affidavit to include: (1) facts establishing an informant’s 14 “basis of knowledge” and (2) facts showing the informant’s “veracity” (internal 15 quotation marks omitted)). [RP 69-70] 16 As addressed in our previous notice, it is impossible to determine the 17 number of informants providing Sexton with information and thus we classify the 18 informant or informants jointly as “informant(s).” We then indicated that the basis 19 of the informant(s)’ knowledge was at best minimally established by the 20 informant(s)’ personal observation of the drugs and weapons in Defendant’s 215 possession. See State v. Whitley , 1999-NMCA-155, ¶ 4, 128 N.M. 403, 993 P.2d 1 117, limited on other grounds by Williamson , 2009-NMSC-039, ¶ 29. 2 Even assuming that the informant(s)’ personal observations were sufficient 3 to establish the requisite knowledge, we then proposed to conclude that the 4 information in the affidavit was insufficient to establish the informant(s)’ veracity 5 or credibility. See generally State v. Knight , 2000-NMCA-016, ¶ 20, 128 N.M. 6 591, 995 P.2d 1033, limited on other grounds by Williamson , 2009-NMSC-039, ¶ 7 29. Under the veracity or credibility prong, the affidavit must set forth sufficient 8 facts for the issuing judge to independentlydetermine either the inherent credibility 9 of an informant or the reliability of the informant’s information. See State v. 10 Steinzig , 1999-NMCA-107, ¶ 18, 127 N.M. 752, 987 P.2d 409, limited on other 11 grounds by Williamson , 2009-NMSC-039, ¶ 29. An informant’s veracity or 12 credibility may be established, among other ways, by showing that: 13 (1) the informant has given reliable information to police officers in 14 the past[,] (2) the informant is a volunteer citizen-informant[,] (3) the 15 informant has made statements against his or her penal interest[,] (4) 16 independent investigation by police corroborates informant’s 17 reliability or information given[,] and (5) facts and circumstances 18 disclosed impute reliability. 19 In re Shon Daniel K. , 1998-NMCA-069, ¶ 12, 125 N.M. 219, 959 P.2d 553 20 (internal citations omitted), limited on other grounds by Williamson , 2009-NMSC21 039, ¶ 29. 226 In this case, the only statement arguably against penal interest was the 1 informant’s general statement on April 15, 2010, that he/she had been selling an 2 unspecified amount of narcotics to unnamed persons including Defendant. [RP 73] 3 This statement was made months beforethe affidavit was submitted and is not 4 enough to establish the requisite veracity or credibility. See State v. Barker, 114 5 N.M. 589, 593, 844 P.2d 839, 843 (Ct. App. 1992 (holding that in order for a 6 declaration against penal interest to establish an informant’s credibility “there must 7 be information in the affidavit that tends to show that the informant would have 8 had a reasonable fear of prosecution atthe time he made the statement”). 9 As to historic reliability, the only statement suggesting reliability is the 10 general assertion that the informant has proven reliable twice in the past. [RP 74] 11 In our notice, we stated that we wereunpersuaded this is enough to establish 12 credibility. See State v. Therrien, 110 N.M. 261, 263, 794 P.2d 735, 737 (Ct. App. 13 1990) (holding that an officer’s statement that “he knew the informant ‘to be 14 reliable’” is insufficient to establish credibility (internal quotation marks omitted)), 15 overruled on other grounds by Barker, 114 N.M. at 594, 844 P.2d at 844; cf. 16 Cordova , 109 N.M. at 217-18, 784 P.2d at 36-37 (finding a confidential informant 17 to be credible based upon the affiant’s st atement that the informant had provided 18 information in the past which the affiant found to be true and correct from personal 197 knowledge and investigation); Steinzig , 1999-NMCA-107, ¶ 18 (noting that an 1 informant’s reliability may be established by showing that the informant has 2 previously given police officers reliable in formation). Finally, we concluded that 3 the affidavit fails to disclose any information indicating corroboration by 4 independent investigation or any history of cooperation by the informant(s) with 5 law enforcement except the statement th at someone named “Giovanni” was seen 6 conversing with Defendant in frontof Defendant’s home. [RP 74] 7 In its memorandum in opposition, the State admits that the affidavit is “not a 8 model of clarity.” [MIO 5] However, it then argues that, taken as a whole the 9 affidavit provides a substantial basis tosupport a finding of probable cause. [MIO 10 5-11] We disagree. 11 First, contrary to the State’s contentions, we disagree that the analysis 12 contained in State v. Snedeker , 99 N.M. 286, 657 P.2d 613 (1982), and State v. 13 Wisdom , 110 N.M. 772, 800 P.2d 206 (Ct. App. 1990), overruled on other grounds 14 by Barker, 114 N.M. at 594, 844 P.2d at 844, warrants a conclusion that the 15 affidavit in this case is sufficient. [MIO 6-7] In Snedeker the affiant did not even 16 rely on information provided by an informant. See 99 N.M. at 287-88, 657 P.2d at 17 614-15. In Wisdom , the affidavit in support of the warrant relies on information 18 provided by an informant but it also establishes the informants’ veracity or 198 credibility by stating that the informants supplying information “have been known 1 to affiant to be reliable having given info rmation on at least three occassions [sic] 2 [occasions] which [sic] [that] has lead [sic] [led] to siezures [sic] [seizures] of 3 controlled substances and recovery of stol en property and/or arrest of suspect.” 4 110 N.M. at 776, 800 P.2d at 210 (alterations in the original). In comparison, the 5 language in this case that one of the info rmants “has proven to be reliable twice in 6 the past” and the statement calling that informant, or possibly a different informant 7 “confidential and reliable” does not establis h the requisite veracity or credibility. 8 [MIO 8] See Therrien, 110 N.M. at 263, 794 P.2d at 737 (holding that an officer’s 9 statement that “he knew the informant ‘to bereliable’” is insufficient to establish 10 credibility). 11 In its memorandum in opposition, the State also suggests that the 12 information in the affidavit was sufficiently corroborated. [MIO 8-9] We 13 disagree. As previously stated th e only “corroboration” was the officer’s 14 observation that Defendant was seen talking with Baustista, a known drug dealer in 15 front of Defendant’s residence. [MIO 8] We disagree that the officer’s 16 observation of one conversation in front of Defendant’s residence, without any 17 information regarding the substance of th at conversation, constitutes corroboration 189 of the informant(s)’ information that Baustista was working for Defendant. [MIO 1 8] 2 In conclusion, the State concedes that the affiant “did not strictly state the 3 basis of knowledge and veracity of each informant” but it then argues that the 4 information, taken as a whole “was su fficient information for a detached and 5 neutral judge to determine that there wa s probable cause to believe Defendant had 6 drugs and weapons at his residence.” [MIO 11] We disagree. 7 As discussed at length in our notice of proposed summary disposition, 8 considering the affidavit as a whole e xposes numerous weaknesses: some of the 9 information is almost two months old; it is impossible to determine whether all of 10 the information was provided by the same informant or whether one informant 11 provided the information on April 15, another spoke with Officer Skinner, and a 12 third provided the information on June 9; and it is not clear whether large portions 13 of the actions attributed to Defendant were even observed by the informant(s) or 14 whether the informant(s) merely obtained the information from other sources. 15 Thus, we remain of the opinion that reviewing the affidavit as a whole, including 16 all the reasonable inferences drawn therefro m, fails to provide “a substantial basis 17 to support a finding of probable cause.” Williamson , 2009-NMSC-039, ¶ 29. 1810 CONCLUSION 1 For the reasons set forth above as well as those discussed in our notice of 2 proposed summary disposition, we affirm the district court’s order granting 3 Defendant’s motion to suppress. 4 IT IS SO ORDERED. 5

6 RODERICK T. KENNEDY, Judge 7 WE CONCUR: 8

9 CELIA FOY CASTILLO, Chief Judge 10

11 JONATHAN B. SUTIN, Judge 12