IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2020-NMSC-017

Filing Date: July 23, 2020

No. S-1-SC-37555

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

GABRIEL SANCHEZ,

Defendant-Appellee.

INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA 

COUNTY

Jason Lidyard, District Judge

Released for Publication December 15, 2020.

Hector H. Balderas, Attorney General

Margaret Jayne Crabb, Assistant Attorney General

John J. Woykovsky, Assistant Attorney General

Santa Fe, NM

for Appellant

Bennett J. Baur, Chief Public Defender

E. Craig Hay, III, Assistant Public Defender

Sydney K.L. West, Assistant Public Defender

Santa Fe, NM

for Appellee

OPINION

VIGIL, Justice.

{1} Defendant Gabriel Sanchez was indicted for first-degree murder, tampering with 

evidence, and aggravated burglary in connection with the death of William Jimerson. In 

two pretrial orders, the district court 1) suppressed evidence consisting of the contents 

of Sanchez’s cell phone because the extraction of those contents violated the 
requirement under Rule 5-211(C) NMRA that a warrant be executed within ten days of 

its issuance and 2) excluded several pieces of Rule 11-404(B) NMRA evidence, 

including evidence of a fire at Jimerson’s home allegedly set by Sanchez the night 

before Jimerson’s death. The State filed an interlocutory appeal pursuant to NMSA 

1978, Section 39-3-3(B)(2) (1972) (allowing the State to file an interlocutory appeal of 

an order suppressing or excluding evidence), and State v. Smallwood, 2007-NMSC005, ¶ 11, 141 N.M. 178, 152 P.3d 821 (holding that the Supreme Court has exclusive 

jurisdiction over interlocutory appeals in cases in which the defendant may be 

sentenced to life imprisonment). Following oral argument, and to allow the proceedings 

below to continue, we issued an order reversing the district court’s suppression of the 

evidence from the cell phone and affirming the district court’s exclusion of evidence of 

the fire allegedly set by Sanchez. We issue this opinion to explain our holdings.

{2} First, we conclude that when a warrant is issued to search an electronic device, 

that warrant is executed when the device is seized or the data is copied on-site, which 

must occur within Rule 5-211(C)’s ten-day time limit. Rule 5-211(C)’s ten-day time limit 

applies only to the seizure of the device and not any subsequent data extraction or 

review. Because Sanchez’s cell phone had already been seized by the police when the 

police obtained the warrant to search the phone, it was not a violation of Rule 5-211(C) 

for the police to successfully unlock the phone and extract its contents after the ten-day 

time limitation in the rule. Accordingly, we reverse the district court’s suppression of the 

evidence obtained from the cell phone. Second, because no admissible evidence 

connected Sanchez to the fire at Jimerson’s home, we conclude that the district court 

did not abuse its discretion by excluding evidence of the fire.

I. MOTION TO SUPPRESS CELL PHONE EVIDENCE

{3} We first address the State’s argument that the district court erred by granting 

Sanchez’s motion to suppress evidence consisting of the contents of Sanchez’s cell 

phone. For the reasons that follow, we agree with the State and reverse the district 

court’s suppression of that evidence.

A. Background

{4} The investigation in this case began on December 18, 2017, when Jimerson was 

found dead in his home from multiple gunshot wounds to the head. New Mexico State 

Police (NMSP) Agent Joey Gallegos learned that Jimerson had called the police the day 

before to report a fire at his home that he believed Sanchez had set. Jimerson thought 

that Sanchez wanted to kill him because of his relationship with Sanchez’s ex-fiancé. 

Agent Gallegos spoke to Sanchez’s ex-fiancé and learned that Sanchez had previously 

threatened and attacked Jimerson.

{5} Later that day, Santa Clara Tribal Police informed NMSP that Sanchez was in a 

residence on the Santa Clara Pueblo. NMSP obtained a warrant from Santa Clara 

Pueblo Tribal Court to search the residence and remove Sanchez from the Pueblo. 

Pursuant to the search warrant, police seized a cell phone, among other items.
{6} The next day, December 19, 2017, Agent Gallegos obtained a warrant to search 

Sanchez’s phone. NMSP Agent Andrew Jorgenson took the cell phone to the Regional 

Computer Forensic Laboratory (RCFL) to make a digital copy of the phone’s contents 

but was unable to bypass the lock code on the phone. Agent Jorgenson then returned 

the phone to the NMSP evidence vault.

{7} The cell phone remained in the NMSP evidence vault until November 2018, 

when Agents Gallegos and Jorgenson learned that the technology used to extract data 

from cell phones at the RCFL had been updated and could potentially bypass the lock 

code. On November 5, 2018, Agent Jorgenson took the cell phone back to the RCFL 

and was able to unlock it. He extracted the phone’s contents and stored them on an 

external hard drive, which was placed in the NMSP evidence vault along with the cell 

phone.

{8} In December 2018, NMSP Agent Jesse Whittaker took over the investigation 

from Agent Gallegos. When Agent Whittaker took over the case, Agent Gallegos told 

him that he should obtain a warrant to search Sanchez’s phone. On December 26, 

2018, Agent Whittaker filed an affidavit for a new search warrant. In support of the 

warrant, Agent Whittaker copied Agent Gallegos’s affidavit and indicated Agent 

Gallegos as the original affiant. He further stated that officers had been “able to 

forensically by-pass the password and preserve the evidence from the device” in 

November 2018, but that the contents had not yet been reviewed. Agent Whittaker 

obtained a second search warrant for Sanchez’s phone on December 26, 2018. After 

that warrant was issued, Agent Jorgenson filed a return and inventory stating that 

NMSP had seized a digital copy of Sanchez’s phone on November 5, 2018, pursuant to 

the search warrant obtained on December 26, 2018.

{9} On January 8, 2019, the State filed a motion to continue the trial, mentioning the 

large number of text and media messages, calls, search logs, and numerous other files 

recently extracted from Sanchez’s cell phone. Sanchez subsequently filed a motion to 

suppress the evidence extracted from his cell phone, raising two arguments. First, 

Sanchez claimed that the extraction of the data from his cell phone on November 5, 

2018, was a warrantless search because it occurred eleven months after the first 

warrant was issued on December 19, 2017, but before the second warrant was issued 

on December 26, 2018. Sanchez argued that this violated Rule 5-211(C), which 

provides that a warrant must be executed within ten days after its issuance. Second, 

Sanchez contended that the information in the warrant issued on December 19, 2017, 

was stale and did not support probable cause to search his phone. He argued that a 

year had passed and the investigation in that time had revealed new facts which should 

have been presented in Agent Whittaker’s affidavit in support of the warrant issued on 

December 26, 2018. In response, the State’s primary contention was that the warrant 

issued on December 19, 2017, was still valid when the data was extracted from 

Sanchez’s phone.

{10} At the hearing on the suppression motion, the district court rejected Sanchez’s 

probable cause argument and concluded that the affidavits provided probable cause to 

search the cell phone. The district court instead granted suppression of the contents of 
the cell phone based on Sanchez’s argument that Rule 5-211(C) required police to 

execute the search warrant within ten days of its issuance. In a written order, the district 

court found that police obtained a warrant to search Sanchez’s cell phone on December 

19, 2017, and searched that phone when they extracted its data on November 5, 2018. 

The district court concluded that, pursuant to Rule 5-211(C), the warrant did not 

authorize the search because the search was conducted eleven months after the police 

obtained the warrant. Accordingly, the district court concluded that the search of the cell 

phone was warrantless and granted Sanchez’s motion to suppress. In this interlocutory 

appeal, the State seeks review of the district court’s order suppressing the evidence 

extracted from the cell phone.

B. Standard of Review

{11} On appeal, there is no dispute that a warrant was required to search Sanchez’s 

phone. See Riley v. California, 573 U.S. 373, 401 (2014) (“Our holding . . . is not that 

the information on a cell phone is immune from search; it is instead that a warrant is 

generally required before such a search[.]”). Additionally, Sanchez did not challenge the 

seizure of his phone pursuant to the Santa Clara Pueblo warrant or argue that the first 

warrant to search his phone was invalid for any reason when issued on December 19, 

2017. Instead, the only issue before us in the State’s interlocutory challenge to the 

district court’s order is whether the delay in extracting the data from the phone violated 

the ten-day time limit of Rule 5-211(C).

{12} Review of suppression rulings generally “presents a mixed question of law and 

fact. We review factual determinations for substantial evidence and legal determinations 

de novo.” State v. Paananen, 2015-NMSC-031, ¶ 10, 357 P.3d 958 (internal quotation 

marks and citation omitted). In this case, the issues do not turn on factual disputes but 

instead on the interpretation of Rule 5-211(C), a legal question that we review de novo. 

See Allen v. LeMaster, 2012-NMSC-001, ¶ 11, 267 P.3d 806. “When construing our 

procedural rules, we use the same rules of construction applicable to the interpretation 

of statutes.” Id. “We begin by examining the plain language of the rule as well as the 

context in which it was promulgated, including the history of the rule and the object and 

purpose.” State v. Aslin, 2020-NMSC-004, ¶ 9, 457 P.3d 249 (internal quotation marks 

and citation omitted).

C. Discussion

{13} Rule 5-211(C) provides that

[a] search warrant shall be executed within ten (10) days after the date of 

issuance. The officer seizing property under the warrant shall give to the 

person from whom or from whose premises the property was taken a copy 

of the affidavit for search warrant, a copy of the search warrant, and a 

copy of the inventory of the property taken or shall leave the copies of the 

affidavit for search warrant, the search warrant, and inventory at the place 

from which the property was taken.
{14} Whether the extraction of the data from Sanchez’s cell phone violated this rule 

depends on what it means to “execute” a warrant in the context of electronically stored 

information. Generally, a warrant is executed when the search or seizure authorized by 

that warrant is conducted. State v. Elam, 1989-NMCA-006, ¶ 18, 108 N.M. 268, 771 

P.2d 597; 79 C.J.S. Searches and Seizures § 251 at 358 (2017) (“A search warrant is 

executed by making the search directed.”). However, no New Mexico case has 

considered when a warrant to search an electronic device for information stored on that 

device is executed. For the following reasons, we conclude that a search warrant for 

information stored on an electronic device is executed for the purposes of Rule 5-

211(C) when that device is seized or when the data stored on that device is copied on 

site.

{15} In this case, on December 19, 2017, police sought authority to search Sanchez’s 

phone for data stored in the internal and external memory of the phone. Being satisfied 

that there was probable cause to believe that evidence of a crime would be found on 

Sanchez’s cell phone, the judge issued a warrant authorizing police to search the 

phone.1 Sanchez argues that this warrant was not executed until the police successfully 

unlocked his phone and extracted the data from it on November 5, 2018—eleven 

months after the police obtained the warrant.

{16} Such an interpretation of the rule—that a search warrant for an electronic device 

is not executed until the information on that device is extracted—does not account for 

the practical realities of searching electronic devices. The extraction of data from an

electronic device may be reasonably delayed by months for many reasons, including 

encryption on the device and backlogs at computer forensics labs. See, e.g., United 

States v. Carrington, 700 F. App’x 224, 231-32 (4th Cir. 2017) (noting that the delay of 

six months in searching a phone was due, in part, to the need to send the phone to “a 

special FBI unit for examination” because of physical damage to the phone); United 

States v. Syphers, 426 F.3d 461, 463-64, 469 (1st Cir. 2005) (noting that the 

prosecution moved for an additional year on a warrant to search a computer because of 

the need to decrypt 64,000 images and because of “a backlog in computer crimes 

investigations”); Commonwealth v. Knoble, 188 A.3d 1199, 1202-03 (Pa. Super Ct. 

2018) (explaining that a second extraction of data from a cell phone revealed data not 

revealed in the first extraction because the software used to extract the data had been 

updated in the nine months between the two extractions); State v. Grenning, 174 P.3d 

706, 710-11, 714 (Wash. Ct. App. 2008) (noting that the police officer had to use 

“specialized software in order to complete his search” and that a delay of more than a 

year was reasonable because it was not realistic to require police to review the large 

amount of information on the devices within the ten-day time limit under the state rule). 

To conclude that Rule 5-211(C) requires the extraction of data from the device within 

ten days after law enforcement obtains a warrant to search the device would require law 

enforcement to obtain a new warrant every time the extraction takes longer than ten 

days, potentially many times over the course of an investigation. Such a requirement is 

1Only the search warrant issued on December 26, 2018, is in the record before us. However, the parties 

agreed in the district court and agree on appeal that the warrant issued on December 19, 2017, 

authorized a search of Sanchez’s cell phone.
not necessary or reasonable. See State v. Smith, 2004-NMSC-032, ¶ 10, 136 N.M. 372, 

98 P.3d 1022 (“This Court has rejected a formalistic and mechanical statutory 

construction when the results would be absurd, unreasonable, or contrary to the spirit of 

the statute.”); see also Allen, 2012-NMSC-001, ¶ 11 (noting that rules of statutory 

construction apply to the interpretation of rules); Rule 5-101(B) NMRA (providing that 

the rules of criminal procedure for the district courts “shall be construed to secure 

simplicity in procedure, fairness in administration and the elimination of unjustifiable 

expense and delay”).

{17} Recognizing that this is an issue of first impression in New Mexico, the State 

urges us to interpret Rule 5-211(C) to be consistent with the analogous federal rule, 

Rule 41 of the Federal Rules of Criminal Procedure. See Rule 5-211 comm. 

commentary (noting that Rule 5-211 is patterned after Fed. R. Crim. P. 41). Like Rule 5-

211, the federal rule requires that law enforcement execute a warrant within a specified 

number of days. Fed. R. Crim. P. 41(e)(2)(A)(i). Unlike Rule 5-211, a provision of the 

federal rule specifically addresses warrants authorizing the search of electronically 

stored information, providing that “[t]he time for executing the warrant . . . refers to the 

seizure or on-site copying of the media or information, and not to any later off-site 

copying or review.” Fed. R. Crim. P. 41(e)(2)(B). Committee commentary explains that 

the federal rule is based on the practical reality of electronically stored information: “A 

substantial amount of time can be involved in the forensic imaging and review of 

information. This is due to the sheer size of the storage capacity of media, difficulties 

created by encryption and booby traps, and the workload of the computer labs.” Fed. R. 

Crim. P. 41 Advisory comm. notes, 2009 amendments. Because of these practical 

considerations, the federal rule “acknowledges the need for a two-step process: officers 

may seize or copy the entire storage medium and review it later to determine what 

electronically stored information falls within the scope of the warrant.” Id.

{18} We recognize that Rule 5-211(C) does not have the explicit language of the 

federal rule regarding the search of electronically stored information, but we agree with 

the State that these practical considerations are compelling. By seizing an electronic 

device, law enforcement takes control of both the device and the data on that device, 

and allowing more than ten days to copy and review that data takes into account the 

various complications that may arise when attempting to access the contents of the

device. For these reasons, we conclude that for the purposes of Rule 5-211(C) a 

warrant to search an electronic device is executed when the device is seized or the data 

from the device is copied on site. In other words, a device must be in the custody of 

police within ten days after the police obtain a warrant to search that device. The 

seizure of a device more than ten days after the issuance of a warrant to search the 

device violates Rule 5-211(C), but if the device is seized within the ten day time limit, 

any subsequent extraction and analysis does not violate the rule.

{19} When a device is already in lawful police custody when the police obtain a 

warrant to search the device, the extraction of data from the device more than ten days 

after police obtain the warrant does not violate Rule 5-211(C). See Carrington, 700 

F.App’x at 231-32 (concluding that, where a cell phone was already in the lawful 

possession of law enforcement when they obtained a warrant to search the phone, a 
six-month delay in searching the phone did not violate Fed. R. Crim. P. 41(e)(2)(B)); see 

also United States v. Huart, 735 F.3d 972, 974 & n.2 (7th Cir. 2013) (noting in dicta that 

a warrant to search a cell phone was executed for the purposes of Fed. R. Crim. P. 41 

when the phone was seized, which occurred before the warrant was issued). Although a 

device already in the lawful possession of the police is seized before police obtain a 

warrant to search it, the lawfully seized device and its contents are in the custody of 

police within the ten days following the issuance of the warrant. As such, the warrant 

may be deemed executed within those ten days.

{20} In this case, Sanchez’s cell phone had already been seized pursuant to the 

December 18, 2017, Santa Clara Pueblo search warrant and was in the custody of the 

police on December 19, 2017, when the police obtained the warrant to search the 

phone. The fact that the police were unable to successfully unlock the phone and 

extract its contents until eleven months later was not a violation of Rule 5-211(C). 

Because we conclude that no violation of Rule 5-211(C) occurred, we do not need to 

consider whether any such violation would require suppression. See State v. Malloy, 

2001-NMCA-067, ¶ 11, 131 N.M. 222, 34 P.3d 611 (explaining that not all violations of 

Rule 5-211 require suppression). For the foregoing reasons, we reverse the district 

court’s suppression of the evidence obtained from the cell phone. We additionally refer 

this matter to our Rules of Criminal Procedure for State Courts Committee to amend 

Rule 5-211 to include language consistent with this opinion.

II. RULE 11-404(B) EVIDENCE

{21} The State also challenges the district court’s ruling that evidence of a fire at 

Jimerson’s home was not admissible under Rule 11-404(B). “We review the trial court’s 

evidentiary rulings for abuse of discretion.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 

N.M. 438, 971 P.2d 829. “An abuse of discretion occurs when the ruling is clearly 

against the logic and effect of the facts and circumstances of the case. We cannot say 

the trial court abused its discretion by its ruling unless we can characterize it as clearly 

untenable or not justified by reason.” Id. (internal quotation marks and citation omitted).

{22} Rule 11-404(B)(1) provides that evidence of a person’s prior acts “is not

admissible to prove a person’s character in order to show that on a particular occasion 

the person acted in accordance with the character.” Under Rule 11-404(B)(2) such 

evidence “may be admissible for another purpose, such as proving motive, opportunity, 

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” 

In this case, the State filed a notice of intent to introduce evidence of several of 

Sanchez’s prior acts.

{23} Relevant to this appeal, the State sought to introduce evidence of a fire at 

Jimerson’s home allegedly set by Sanchez in the early morning of December 18, 2017.

The district court noted that the only evidence offered by the State connecting Sanchez 

to the fire were statements allegedly made by Jimerson to a police officer, which the 

State explained it would introduce into evidence through that officer’s testimony. The 

district court concluded that such testimony would be inadmissible as hearsay and a 

violation of Sanchez’s right of confrontation. Without this evidence, the district court 
found that there was no evidence that Sanchez had anything to do with the fire. Without 

evidence that Sanchez set the fire, the district court concluded that evidence of the fire 

had no permissible purpose under Rule 11-404(B).

{24} The State challenges this determination by the district court, arguing that the 

district court did not consider all the evidence before it. However, the State does not 

specify what evidence the district court failed to consider and does not challenge the 

district court’s conclusion that testimony from the police officer regarding Jimerson’s 

alleged statements would be inadmissible. Under these circumstances, we cannot say 

that the district court’s exclusion of the evidence of the fire at Jimerson’s home was 

unreasonable or “clearly against the logic and effect of the facts and circumstances of 

the case.” Rojo, 1999-NMSC-001, ¶ 41. Accordingly, we conclude that the district court 

did not abuse its discretion, and we affirm the exclusion of evidence of the fire.

III. CONCLUSION

{25} This opinion explains our order reversing the district court’s suppression of 

evidence obtained from Sanchez’s cell phone and affirming the district court’s exclusion 

of evidence of a fire allegedly set by Sanchez. First, we reversed the district court’s 

suppression of the cell phone evidence because it was not a violation of Rule 5-211(C) 

for the police to unlock the phone and extract its contents eleven months after the police 

obtained the warrant to search the phone. A warrant to search an electronic device is 

executed for the purposes of Rule 5-211(C) when that device is seized, thus any 

subsequent extraction or review of the data from the seized device is not subject to Rule 

5-211(C)’s ten-day time limit. Second, because the State offered no admissible 

evidence connecting Sanchez to the fire, we conclude that the district court did not 

abuse its discretion by excluding evidence of that fire.

{26} IT IS SO ORDERED.

BARBARA J. VIGIL, Justice

WE CONCUR:

MICHAEL E. VIGIL, Chief Justice

JUDITH K. NAKAMURA, Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice