This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 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. 29,870 9 JERRY B. TRUJILLO, JR., 10 Defendant-Appellee. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Charles W. Brown, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 James W. Grayson, Assistant Attorney General 16 Albuquerque, NM 17 for Appellant 18 Hugh W. Dangler, Chief Public Defender 19 Nancy Hewitt, Assistan t Appellate Defender 20 Santa Fe, NM 21 for Appellee 22

MEMORANDUM OPINION 23 BUSTAMANTE, Judge. 242 The State appeals from the district court’s order granting Defendant’s motion 1 to suppress evidence. This Court’s first notice proposed summary affirmance. The 2 State filed a memorandum in opposition to the proposed disposition. We are not 3 persuaded by the State’s arguments, and affirm the district court. 4 The State argues that the judge who issued the search warrant had more than a 5 substantial basis upon which to find probable cau se to search the residence. The State 6 points out that “only a probability of criminal conduct need be shown,” and “[i]t is 7 sufficient if there is evidence from wh ich the fact can properly inferred.” State v. 8 Snedeker, 99 N.M. 286, 290, 657 P.2d 613, 617 (1982). [MIO 7] The State contends 9 that the affidavit requested the issuance of a warrant to search the residence 10 identified, followed by the officer’s asse rtion of probable cause to believe the 11 residence contained evidence of a crime. We disagree. While the affidavit did 12 identify the address of the residence wher e the officer spoke to the victim, and 13 asserted probable cause to be lieve a crime had occurred, it did not indicate why there 14 was probable cause to believe that the alleged crime occurre d at the residence 15 identified. 16 The State further argues that the affidavit indicates that upon arrival at the 17 identified address, the officer spoke to the victim, who lived there with her 183 grandparents and Defendant. [M IO 8] However, that is not entirely accurate. While 1 the affidavit indicates that the victim and her brother were adopt ed by and were living 2 with her grandmother and step -grandfather, it does not stat e that the residence where 3 the victim was being interviewed was actually the home of her grandparents, the 4 victim’s home, or the pla ce where the crime occurred. Also, although both the 5 victim, and a second alleged victim, indicated that the crimes occurred in the 6 perpetrator’s bedroom, and evidence could be found there, there was no indication in 7 the affidavit that the bedroom described was located in the very home where the 8 officers were conducting their investigation. It is not enough thatthe affidavit assert 9 that evidence of a crime can be found in the residence to be sear ched. The affidavit 10 must assert facts to establish probable cause for believing why such evidence can be 11 found there. That is the problem with the a ffidavit in this case; the victim could have 12 been at anyone’s residence when the officer interviewed her. It would not be unheard 13 of for a victim or a concerned relative to call the police to another person’s home to 14 report the crime, particularly where the alle ged sexual perpetrator lived in the victim’s 15 home. 16 We hold that the affidavit as a whole, t ogether with reasonable inferences drawn 17 therefrom, did not provide a substantial ba sis for determining that there was probable 184 cause to believe that the evidence described in the affidavit could be found at the 1 residence identified. See State v. Williamson , 2009-NMSC-039, ¶ 29, 146 N.M. 488, 2 212 P.3d 376 (stating the standardof review on appeal); State v. Rubio , 2002-NMCA3 007, ¶ 5, 131 N.M. 479, 39 P.3d 144 (filed 2001) (“Probable cause for the issuance 4 of a search warrant must be established fro m within the four corners of the supporting 5 affidavit.”). For these reasons, and thos e stated in the first notice of proposed 6 summary disposition, we affirm the district court. 7 IT IS SO ORDERED. 8

9 MICHAEL D. BUSTAMANTE, Judge 10 WE CONCUR: 11

12 JAMES J. WECHSLER, Judge 13

14 RODERICK T. KENNEDY, Judge 15