April 18, 2011 – State of New Mexico v. Christopher Gurule and Linda Davis, No. 29,734

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

INTHE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number

Filing Date: _April 18, 2011

NO. 29,734

STATE OF NEW MEXICO,
Plaintiff-A ppellant,
V.

CHRISTOPHER GURULE and
LINDA DAVIS,

Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Charles W. Brown, District Judge

Gary K. King, Attomey General

Santa Fe, NM

James W. Grayson, Assistant Attomey General
Albuquerque, NM

for Appellant

Chief Public Defender

Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM

for Appellee Gurule

Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM

for Appellee Davis

OPINION
CASTILLO, Chief Judge.
{1} 	The State appeals from a district court order suppressing evidence. On appeal,
the State claims that Defendants lacked standing to challenge the seizure of a digital
camera, and even if Defendants had standing, the district court erred in concluding
that the digital camera had to be suppressed because there was no probable cause to
seize it during the execution of the search warrant. 	The State also claims that the
district court erred in excluding certain testimony under the fruit of the poisonous tree
doctrine. Finally, the State argues that the district court erred in suppressing out-of-
court statements made by co-defendant Linda Davis, who resided with co-defendant
Gurule at the home that was searched. We conclude that Defendants had standing to
challenge the seizure of the digital camera and that the district court properly
concluded that the seizure was not supported by probable cause. We also conclude
that the district court did not err in suppressing testimony tainted by the illegal seizure
and that statements made by co-defendant Davis were properly excluded as well.
Accordingly, we affirm.
BACKGROUND
{2} 	On September 5, 2007, Special Agent Lois Kinch, a law enforcement officer
employed by the New Mexico Attorney General’s Office, Internet Crimes Against

2
Children Task Force, initiated an investigation into the distribution of child
pornography on an ultra-peer internet site. During this investigation, Agent Kinch
determined that a computer located at Defendants’ home was one of the computers
linked to this ultra-peer site, Gnutella, that was being used to share child pornography.
She drafted an affidavit in support of a search warrant. 	The affidavit contained
boilerplate sections outlining Agent Kinch’s background and experience, describing
how the ultra-peer network operates, and explaining Agent Kinch’s beliefs about how
child predators act and what items need to be seized in order to collect all relevant
evidence of those acts. The affidavit also contained a section that stated that based on
this particular investigation, Agent Kinch had reason to believe that someone using
the computer at the home of Defendants was receiving, possessing, and/or distributing
child pornography. Nothing in the affidavit provided any evidence that anyone at the
home was actually taking pornographic photographs of children, only that someone
was involved in downloading and distributing such images. 	Nevertheless, the
affidavit states that, among numerous other items, any digital cameras should be
seized.
{3} 	Based on Agent Kinch’s affidavit, the district court issued a search warrant on
September 27, 2007. During the search of Defendants’ home the following day, the
officers seized a Sony Cybershot camera in a closet down the hallway from the

3
bedroom where the computer was located. 	On February 5, 2008, Agent Kinch
conducted a forensic analysis of the camera’s digital information, in which she found
images of Defendant Gurule engaging in sexual acts with a prepubescent girl. It was
later determined that this girl was the four-year-old granddaughter of Defendant
Davis.
{4} 	Defendants moved to suppress the evidence obtained from the seizure of the
camera. 	In response, the State argued that Defendants did not have standing to
challenge the seizure of the camera since the camera had been obtained by use of a
fraudulently obtained credit card, and that even if they did have standing, the camera
was properly seized pursuant to the warrant.
{5} 	The district court granted Defendants’ motion to suppress. 	In its order, the
district court concluded that Defendants had standing to challenge the seizure of the
camera, presumably finding Defendant Gurule’s testimony that the camera was
lawfully purchased to be credible. As to the legality of that seizure, the district court
stated:
10. 	The section of the affidavit which described the “current
investigation” does not mention a digital camera in any manner
connected to 	this 	case. 	[Agent] Kinch testified that she had no
information that either defendant:
was involved in creating child pornography.
had uploaded any images from a digital camera to the computer.

4
had downloaded any images from the computer to a camera.
had the equipment to transfer images between a camera and
the computer.
11. 	[Agent] Kinch testified that if [D]efendants had the proper
cables, they could transfer images from the camera to the computer; and
if [D]efendants had the proper cables, and if the cameras had a[n]
optional aftermarket increased memory storage device, [D]efendant[s]
could transfer images from the five (5) files that were known to contain
the illegal images to the camera.
12. 	The digital camera did not have the optional device. 	No
cable to connect the camera and the computer was discovered.
Based on these facts, the district court concluded that there was no probable cause to
seize the camera. 	The district court also concluded that certain witness testimony
would be excluded because it was tainted by the illegal seizure and that a statement
made by Defendant Davis would be excluded on confrontation grounds. The State
then filed this appeal pursuant to NMSA 1978, Section 39-3-3(B)(2) (1972).
DISCUSSION
Motion to Suppress
Standard of Review
{6} 	We review the grant or denial of a motion to suppress as a mixed question of
fact and law. State v. Gutierrez, 2004-NMCA-081, ¶ 4, 136 N.M. 18, 94 P.3d 18. We
determine whether the law was correctly applied to the facts and view “the facts in the

5
light most favorable to the prevailing party.” State v. Cline, 1998-NMCA-154, ¶ 6,
126 N.M. 77, 966 P.2d 785; see State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M.
119, 2 P.3d 856. Furthermore, we employ all reasonable presumptions in support of
the district court’s ruling. See Jason L., 2000-NMSC-018, ¶ 11. With this is mind,
we discuss below the more deferential review that applies to the issuance of search
warrants.
The Digital Camera
Standing
{7} 	The State argues that Defendants do not have standing to object to the seizure
of the digital camera. “Whether a defendant has standing involves two inquiries: (1)
whether the defendant had an actual, subjective expectation of privacy in the premises
searched; and (2) whether the defendant’s ‘subjective expectation [is] one that society
is prepared to recognize as reasonable.’” State v. Zamora, 2005-NMCA-039, ¶ 10,
137 N.M. 301, 110 P.3d 517 (quoting State v. Esguerra, 113 N.M. 310, 313, 825 P.2d
243, 246 (Ct. App. 1991) (alteration in original)).
{8} 	The State concedes that Defendants satisfied the first part of this inquiry in that
they had an actual and subjective expectation of privacy in their shared residence.
However, the State argues that Defendants failed to show that they had an expectation
of privacy that society is prepared to recognize. See Zamora, 2005-NMCA-039, ¶ 11.

6
Specifically, the State argues that the digital camera was likely purchased by a stolen
credit card. 	See United States v. Caymen, 404 F.3d 1196, 1200-01 (9th Cir. 2005)
(holding that a person who fraudulently purchased an item with someone else’s credit
card did not have an expectation of privacy in the item that society was prepared to
recognize and therefore had no standing to raise a Fourth Amendment challenge to the
seizure of the item).
{9} 	Even assuming, arguendo, that we were inclined to adopt the principles
discussed in Caymen in the context of a search of a home, a review of the evidence
indicates that the matter involved a factual conflict resolved in favor of Defendants
that would support standing under this analysis. Agent Kinch testified that during the
execution of the search warrant, officers found eight to twelve credit cards and credit
card statements that did not belong to Defendant Davis. 	One of these cards listed
Defendant Davis as a cardholder, but it belonged to a victim of identity theft who
lived out of state. Defendant Davis had used this card to purchase a memory stick for
a digital camera at an Office Max on July 8, 2007. The State also presented evidence
that the Sony Cybershot camera was distributed by Office Max North America in Las
Vegas, Nevada, although Agent Kinch did not know to which store it had been
distributed. In support of Defendants’ standing, Defendant Gurule testified that he
and Defendant Davis purchased the camera for the two of them at a Wal-Mart using

7
a credit card and that he paid her cash to cover the purchase. In light of this testimony
and our standard of review, the district court could find Defendant Gurule to be
credible and conclude that the digital camera was lawfully purchased.
{10} 	The State cites to State v. Van Dang, 2005-NMSC-033, 138 N.M. 408, 120 P.3d
830, in support of its contention that Defendants needed to make a more affirmative
showing in light of evidence that the camera may have been illegally obtained. In Van
Dang, our Supreme Court held that a person claiming standing based on the owner’s
consent or permission needed to present some evidence of that consent. Id. ¶ 12. We
are unpersuaded that the holding in Van Dang requires Defendants to introduce
evidence beyond their own testimony in this case.
{11} 	In Van Dang, the defendant testified at the suppression hearing that he had a
right to drive the rental car, but he did not testify that the person who rented the car
had given him permission to drive it. 	Id. ¶ 2. 	In reaching its holding that the
defendant lacked standing, the Court specifically relied in part on the defendant’s
failure to even claim he was given permission by the owner or renter. Id. ¶ 12. As
previously discussed, in this case Defendant Gurule testified that he and Defendant
Davis purchased the camera together and that he reimbursed her with a cash payment.
{12} 	Furthermore, in Van Dang our Supreme Court was considering a claimed
privacy interest in an automobile. This case involves a dwelling, and our appellate

8
courts have long recognized “[t]he constitutional distinction between vehicles and
homes [which] turns on this privacy expectation. 	A lesser expectation of privacy
attaches to a vehicle.” State v. Ryon, 2005-NMSC-005, ¶ 23, 137 N.M. 174, 108 P.3d
1032; cf. Esguerra, 113 N.M. at 313-14, 825 P.2d at 246-47 (recognizing that the
privacy interest in one’s dwelling place is entitled to “the highest degree of protection
from unreasonable intrusion by the government”).
Probable Cause to Seize the Camera
{13} 	“The Fourth Amendment to the United States Constitution and [A]rticle II,
[S]ection 10 of the New Mexico Constitution both require probable cause to believe
that a crime is occurring or seizable evidence exists at a particular location before a
search warrant may issue.” State v. Nyce, 2006-NMSC-026, ¶ 9, 139 N.M. 647, 137
P.3d 587, limited on other grounds by State v. Williamson, 2009-NMSC-039, ¶ 29,
146 N.M. 488, 212 P.3d 376. Probable cause to issue the warrant requires a factual
showing that there is a reasonable probability that evidence of a crime will be found
in the place to be searched. See State v. Evans, 2009-NMSC-027, ¶ 10, 146 N.M. 319,
210 P.3d 216. As we noted, because this case involves the search of a dwelling place,
it is “ordinarily afforded the most stringent [F]ourth [A]mendment protection.” State
v. Clark, 105 N.M. 10, 12, 727 P.2d 949, 951 (Ct. App. 1986).
{14} 	A search warrant may be issued when “sufficient facts are presented in a sworn

9
affidavit to enable the magistrate to make an informed, deliberate, and independent
determination that probable cause exists.” State v. Gonzales, 2003-NMCA-008, ¶ 11,
133 N.M. 158, 61 P.3d 867, limited on other grounds by Williamson, 2009-NMSC-
039, ¶ 29. “The degree of proof necessary to establish probable cause for the issuance
of a search warrant is more than a suspicion or possibility but less than a certainty of
proof.” Id. ¶ 12 (internal quotation marks and citation omitted). “Thus, the magistrate
must have sufficient facts upon which to conclude that there is a reasonable
probability that evidence of a crime will be found in the place to be searched.” Id.
{15} 	As we indicated above, our standard of review in considering search warrant
probable cause determinations departs from that normally applicable to motions to
suppress. “[A]n issuing court’s determination of probable cause must be upheld if the
affidavit provides a substantial basis to support a finding of probable cause.”
Williamson, 2009-NMSC-039, ¶ 29.
A reviewing court should not substitute its judgment for that of the
issuing court. Rather . . . the reviewing court must determine whether
the affidavit as a whole, and the reasonable inferences that may be drawn
therefrom, provide a substantial basis for determining that there is
probable cause to believe that a search will uncover evidence of
wrongdoing.
Id. “[T]he substantial basis standard of review is more deferential than the de novo
review applied to questions of law, but less deferential than the substantial evidence
standard applied to questions of fact.” Id. ¶ 30. As a result, “if the factual basis for

10
the warrant is sufficiently detailed in the search warrant affidavit and the issuing court
has found probable cause, the [reviewing] courts should not invalidate the warrant by
interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.”
Id. (alteration in original) (internal quotation marks and citation omitted).
{16} 	In this case, it is undisputed Agent Kinch’s affidavit provided probable cause
to search Defendants’ dwelling for evidence of child pornography. Notwithstanding
an otherwise valid search warrant, however, “[t]he Fourth Amendment requires that
a warrant describe with particularity the things to be seized.” United States v. Brobst,
558 F.3d 982, 993 (9th Cir. 2009) (internal quotation marks omitted). 	“Search
warrants must be specific in both particularity and breadth.” Id. “Particularity is the
requirement that the warrant must clearly state what is sought. Breadth deals with the
requirement that the scope of the warrant be limited by the probable cause on which
the warrant is based.” 	Id. (internal quotation marks and citation omitted). 	Courts
therefore will suppress an individual item for lack of an adequate description, to
prevent unconstrained police discretion, see State v. Hinahara, 2007-NMCA-116, ¶
8, 142 N.M. 475, 166 P.3d 1129, or for lack of probable cause with respect to any
individual item. See State v. Jacobs, 2000-NMSC-026, ¶ 67, 129 N.M. 448, 10 P.3d
127 (observing practice of only suppressing illegally obtained items where search
warrant was otherwise valid with respect to other items); see generally 2 Wayne R.

11
LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.6(f), at 641
(4th ed. 2004) (discussing partial invalidity of search warrant); Martin J. McMahon,
Annotation, Propriety in State Prosecution of Severence of Partially Valid Search
Warrant and Limitation of Suppression to Items Seized Under Invalid Portions of
Warrant, 32 A.L.R.4th 378 (1984).
{17} 	Here, there is no particularity of description concern because the search warrant
expressly authorized the seizure of the digital camera. Instead, we consider whether
the warrant was overly broad in its inclusion of the digital camera. This requires a
review of Agent Kinch’s affidavit. See State v. Donaldson, 100 N.M. 111, 117, 666
P.2d 1258, 1264 (Ct. App. 1983) (noting that courts do not generally look beyond the
four corners of the affidavit in examining sufficiency of the warrant).
{18} 	Agent Kinch’s affidavit provided a detailed technical description of how she
identified Defendant Davis’s Internet Protocol (IP) address and how that address was
linked to the ultra-peer sharing of child pornography. By searching the Gnutella ultra-
peer site’s own records, she was able to trace fifty-eight files to the Davis IP address,
with names suggestive of child pornography, and one depicting a child under the age
of twelve performing oral sex on an adult male. She concluded from her training and
experience that the computer located at this IP address “was receiving, possessing
and/or distributing child pornography.” Agent Kinch also stated in her affidavit that

12
it was necessary to seize “[c]omputer storage media to include but not limited to
floppy disks, hard drives, tapes, DVD disks, CD-ROM disks or other magnetic, optical
or mechanical storage which can be accessed by computers to store or retrieve data
or images of child pornography.” 	Of particular relevance to the issue here, Agent
Kinch stated in her affidavit that it is common for online child predators “to collect
adult pornography for the purposes of grooming a young child. 	This is why it is
important to seize all computer devices[] and photographic equipment to which the
residents have access.”
{19} 	The State argues that the affidavit established a nexus between the possession
or distribution of child pornography and the digital camera, because the camera is
capable of storing digital images and downloading images to a computer. The State
argues that the warrant may authorize officers to seize items “potentially connected”
to the crime. 	Hinahara, 2007-NMCA-116, ¶ 10 (“All of the 	items sought in the
warrant were potentially connected with the assault and the child 	pornography
described in the affidavit.”). 	Hinahara is distinguishable from the present case
because all of the items were related to child pornography. 	The search warrant in
Hinahara authorized the seizure of computers, video tapes, computer diskettes, CDs,
DVDs, photographs, and magazines containing child pornography. 	Id. ¶ 3. 	That
warrant did not state that digital cameras may be seized. Id.

13
{20} 	The State also relies on Hinahara for the proposition that when a court has
determined that a dwelling contains contraband or evidence of a crime, “the officer
can search every container and location within the permitted area where that item
could be located.” Id. ¶ 20 (internal quotation marks and citation omitted). We do not
believe that it is necessary to rely on this independent authority because the search
warrant expressly authorized the search of the digital camera. Instead, the dispositive
issue is whether there was probable cause to permit the search of the camera. To the
extent that the officers could have looked at images readily viewable at the scene,
there is no indication that they did so in this case—it was not until after the camera
was seized and a forensic examination conducted months later that the illegal images
were discovered. 	In the absence of any indication that this camera, which did not
contain a memory card, was being used for the storage of internet child pornography,
or was being used for the independent manufacture of pornography, there was no
substantial basis for concluding that there was probable cause that the camera would
contain child pornography.
{21} 	Even if we assume that the ultra-peer sharing of child pornography constitutes
the manufacture of child pornography, see State v. Smith, 2009-NMCA-028, ¶ 2, 145
N.M. 757, 204 P.3d 1267 (holding that copying child pornography to a portable
storage device constitutes manufacturing), cert. quashed, 2009-NMCERT-012, 147

14
N.M. 601, 227 P.3d 91, there is a qualitative difference between this internet use and
creating one’s own child pornography, with its attendant child abuse. This qualitative
difference is accompanied with further concerns over validating fishing expeditions
that trump one’s heightened privacy protections in the use of cameras and similar First
Amendment, expressive media. 	See Zurcher v. Stanford Daily, 436 U.S. 547, 564
(1978) (“Where the materials sought to be seized may be protected by the First
Amendment, the requirements of the Fourth Amendment must be applied with
‘scrupulous exactitude.’” (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965))).
{22} 	Defendants argue that, in the absence of evidence of broader criminal conduct,
the better approach here would have been to seek an additional warrant based on
newly obtained evidence. We agree. For example, the initial search may have led to
the discovery of evidence supporting the requisite nexus between the camera and child
pornography. The mere fact that the camera is capable of media storage is insufficient
absent any indication of its use for child pornography. 	See generally Lily R.
Robinton, Courting Chaos: Conflicting Guidance from Courts Highlights the Need
for Clearer Rules to Govern the Search and Seizure of Digital Evidence, 12 Yale J.L.
& Tech. 311 (2010) (discussing problem of overly-broad warrants in digital media
context).
{23} 	In summary, we conclude that the district court properly suppressed the digital

15
camera because, even under our deferential standard of review, there was no probable
cause to support its seizure. 	Our holding is made with consideration of both the
heightened privacy expectation in one’s home and its contents, and the additional First
Amendment concerns that come in to play when a camera is searched.
Fruit of the Poisonous Tree
{24} 	The State also challenges the exclusion of witness testimony under the fruit of
the poisonous tree doctrine. 	See Wong Sun v. United States, 371 U.S. 471, 487-88
(1963); see also State v. Ingram, 1998-NMCA-177, ¶ 9, 126 N.M. 426, 970 P.2d 1151
(“Evidence which is obtained as a result of an unconstitutional search or seizure may
be suppressed under the exclusionary rule.” (internal quotation marks and citation
omitted)). 	Here, the district court excluded the testimony of Defendant Davis’s
daughter, Candace Stevens, regarding Defendant Gurule’s use of the computer on the
ground that Candace’s “existence would not have been known but for the illegal
search.” Naked images of Candace’s young daughter, C.S., had been found on the
digital camera during the forensic evaluation that took place months after the
execution of the search warrant.
{25} 	We have already concluded that the digital camera, which contained images of
C.S., was illegally seized. Although a federal good faith exception permits admission
of tainted evidence under certain circumstances, the New Mexico Constitution

16
requires unconstitutionally obtained evidence to be excluded because “[d]enying the
government the fruits of unconstitutional conduct at trial best effectuates the
constitutional proscription of unreasonable searches and seizures by preserving the
rights of the accused to the same extent as if the government’s officers had stayed
within the law.” State v. Gutierrez, 116 N.M. 431, 446, 863 P.2d 1052, 1067 (1993).
However, notwithstanding New Mexico’s rejection of the good faith exception, “not
all evidence discovered as the result of police misconduct need be suppressed.” State
v. Wagoner, 2001-NMCA-014, ¶ 22, 130 N.M. 274, 24 P.3d 306. 	The applicable
inquiry is whether the evidence would not have come to light “but for” the illegality.
Id.
{26} 	The State argues that Candace would have independently come forward to
provide information in this case. 	See id. ¶¶ 22-31 (discussing independent source
doctrine). 	Because this issue required the district court to infer what might have
occurred, we believe that we should defer to the factual finding that she would not
have been involved. The record indicates that the district court’s ruling on the “but
for” finding was supported by substantial evidence. After the forensic examination
of the camera, Agent Kinch showed Defendant Davis a non-pornographic image of
the girl who appeared on the camera, at which time Defendant Davis identified the girl
as her four-year-old granddaughter—the daughter of Candace. 	Up to this point,

17
months after the initial search warrant took place, neither Candace nor her daughter
was involved in this case. We therefore believe that the district court could reasonably
infer that Candace would not have been a witness “but for” Agent Kinch’s forensic
search of the digital camera. 	As a result, we affirm the exclusion of Candace’s
testimony.
Co-Defendant Statement
{27} 	The State also challenges the district court’s exclusion of testimony from
Defendant Davis’s son, who would have testified that she told him that she caught
Defendant Gurule looking at child pornography on the computer. The district court
determined that the testimony violated Defendants’ right of confrontation under
Bruton v. United States, 391 U.S. 123, 125 (1968), which held that the admission of
statements by a co-defendant who did not take the stand deprived the defendant of his
rights under the Sixth Amendment Confrontation Clause when those statements
implicated the defendant.
{28} 	The State argues that Bruton has been limited by Crawford v. Washington, 541
U.S. 36, 53-54 (2004), which held that the Confrontation Clause generally will not
require the exclusion of non-testimonial statements. Crawford listed a “core class”
of statements that are considered testimonial, including statements made under
circumstances that would lead to the objectively reasonable belief that they would be

18
used at a later trial. 	See id. at 51-52. Here, the prosecutor indicated to the district
court that the statements were made sometime after the search warrant had been
executed. It is objectively reasonable to believe that the statements would be used at
trial. Nevertheless, the State argues that the United States Supreme Court does not
deem every statement of this nature to be testimonial. See Davis v. Washington, 547
U.S. 813, 828 (2006) (characterizing statement made during 911 call as non-
testimonial).
{29} 	We do not deem it necessary to decide whether the co-defendant’s statements
at issue in Bruton are limited by Crawford in that they now would need to be
testimonial as well to be excluded. Cf. United States v. Williams, 429 F.3d 767, 773
n.2 (8th Cir. 2005) (noting that “Crawford did not overrule Bruton and its progeny”);
United States v. Ramos-Cardenas, 524 F.3d 600, 609-10 (5th Cir. 2008) (“[W]hile
Crawford 	certainly prohibits the introduction of a codefendant’s out-of-court
testimonial statement against the other defendants in a multiple-defendant trial, it does
not signal a departure from the rules governing the admittance of such a statement
against the speaker-defendant himself, which continue to be provided by Bruton . . .
.”). 	The reason we do not need to reach any possible Bruton/Crawford conflict is
because it was objectively reasonable to anticipate that the statements made by
Defendant Davis to her son would be used in a later trial, unlike the situation

19
discussed in Davis, where other factors may make such a potential witness reluctant
to cooperate with investigators. As such, we conclude that the statements fell within
Crawford’s “core class” of testimonial statements and were properly excluded even
if that analysis applied.
CONCLUSION
{30} 	Based upon the foregoing, we affirm the district court.
{31} 	IT IS SO ORDERED.
__________________________________
CELIA FOY CASTILLO, Chief Judge
WE CONCUR:
__________________________________
JAMES J. WECHSLER, Judge
__________________________________
LINDA M. VANZI, Judge