September 28, 2026- State of New Mexico v. Justin Sneed, No. A-1-CA-41763

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
i co

OpinionNumber L if J >
Filing Date: September 28, 2026 Mark Reynalds
No. A-1-CA-41763
STATE OF NEW MEXICO,

Plaintiff-A ppellant,
V.
JUSTIN SNEED,

Defendant-A ppellee.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Ben Cross, District Court J udge

Raul Torrez, Attomey General

Santa Fe, NM

Henry Chynoweth, Honors Attomey/Assistant Solicitor General
Albuquerque, NM

for Appellant

Bennett J. Baur, Chief Public Defender

Joelle N. Gonzales, Assistant Appellate Defender
Santa Fe, NM

for Appellee

OPINION	1
YOHALEM, Judge.	2
{1} The State appeals the district court’s order granting Defendant Justin Sneed’s	3
motion to suppress evidence seized from his residence pursuant to a search warrant.	4
The State argues that the affidavit for the search warrant submitted to the issuing	5
judge1 was sufficient to establish probable cause under the Aguilar-Spinelli test2 and	6
the district court erred in finding to the contrary. See State v. Cordova, 1989-NMSC-	7
083, ¶ 17, 109 N.M. 211, 784 P.2d 30 (concluding that the Aguilar-Spinelli test best	8
effectuates the principles behind Article II, Section 10 of the New Mexico	9
Constitution). We agree with the State that the affidavit provided a substantial basis	10
to support the issuing judge’s finding of probable cause under Article II, Section 10	11
of the New Mexico Constitution. In addition to supporting the district court’s order	12
suppressing the evidence, Defendant argues in the alternative, that even if this Court	13
1The search warrant in this case was issued by Judge Van Soelen in the Ninth
Judicial District Court rather than by the magistrate court as stated in the parties’
briefs. We therefore refer to the “issuing judge” rather than the “magistrate” or the
“magistrate court” throughout this opinion. See State v. Evans, 2009-NMSC-027,
¶ 12, 146 N.M. 319, 210 P.3d 216 (concluding that an appellate court’s inquiry as to
the sufficiency of the factual basis for probable cause “focuses on the issuing judge’s
conclusion as to probable cause,” not the reviewing court’s conclusion).
2See Aguilar v. Texas, 378 U.S. 108 (1964), abrogated by Illinois v. Gates,
462 U.S. 213 (1983); Spinelli v. United States, 393 U.S. 410 (1969), abrogated by
Gates, 462 U.S. 213. New Mexico courts use the Aguilar-Spinelli test to analyze
state constitutional questions regarding the sufficiency of affidavits that rely on an
informant’s hearsay.

2
concludes that the issuing judge had probable cause to issue the warrant, we should	1
nonetheless affirm the district court’s order suppressing the evidence because	2
evidence outside the four corners of the affidavit showed that law enforcement	3
intentionally misrepresented facts and omitted material information from the	4
affidavit. Assuming without deciding that the affidavit includes the deliberate	5
misrepresentations and omissions argued by Defendant, we conclude that the	6
challenged information is not sufficiently material that “had the information been set	7
out or correctly stated in the affidavit, it would have altered a reasonable magistrate’s	8
[or issuing judge’s] determination of probable cause.” See State v. Donaldson, 1983-	9
NMCA-064, ¶ 17, 100 N.M. 111, 666 P.2d 1258. Therefore, we conclude on this	10
basis as well that the district court erred in suppressing the evidence seized pursuant	11
to the warrant.	12
DISCUSSION3
13
I. The Affidavit Established Probable Cause to Search Defendant’s	14
Residence	15
A. Standard of Review of Probable Cause to Issue a Search Warrant	16
{2} We review the question of whether an affidavit establishes probable cause to	17
issue a search warrant under a substantial basis standard of review. See State v.	18
Williamson, 2009-NMSC-039, ¶ 29, 146 N.M. 488, 212 P.3d 376. “Limiting our	19
3We describe the pertinent facts in the discussion section as to each issue
rather than providing a background section.

3
review to the four corners of the affidavit, we must determine whether the affidavit	1
as a whole, and the reasonable inferences that may be drawn therefrom, provide a	2
substantial basis for determining that there is probable cause.” State v. Perea, 2025-	3
NMSC-035, ¶ 14, 578 P.3d 1135 (text only) (citations omitted). “[T]he substantial	4
basis standard of review is more deferential than the de novo review applied to	5
questions of law, but less deferential than the substantial evidence standard applied	6
to questions of fact.” Williamson, 2009-NMSC-039, ¶ 30.	7
{3} Under the substantial basis standard, the deference owed by this Court is to	8
the issuing judge or magistrate who authorized the warrant, not to the district court’s	9
ruling on the motion to suppress. See Perea, 2025-NMSC-035, ¶ 15 (“A reviewing	10
court should pay great deference to the magistrate’s [or issuing judge’s]	11
determination of probable cause.” (internal quotation marks and citation omitted);	12
State v. Evans, 2009-NMSC-027, ¶ 12, 146 N.M. 319, 210 P.3d 216 (“If we conclude	13
that the [issuing judge’s] conclusions as to probable cause were correct, we uphold	14
those conclusions regardless of the decision reached by the district court.”). Our	15
review, however, is not a rubber stamp. Perea, 2025-NMSC-035, ¶ 16. The issuing	16
judge’s decision “must be objectively reasonable under all [of] the circumstances.”	17
See id. Our careful review for objective reasonableness is “especially important	18
when dealing with the search of a home.” See id. (internal quotation marks and	19
citations omitted) “[I]f the factual basis for the warrant is sufficiently detailed in the	20

4
search warrant affidavit and the issuing court has found probable cause, the	1
reviewing courts should not invalidate the warrant by interpreting the affidavit in a	2
hypertechnical, rather than a commonsense, manner.” Williamson, 2009-NMSC-	3
039, ¶ 30 (alteration, internal quotation marks, and citation omitted).	4
B. The Probable Cause Requirement	5
{4} Both the Fourth Amendment to the United States Constitution and Article II,	6
Section 10 of the New Mexico Constitution “require probable cause to believe that	7
a crime is occurring or seizable evidence exists at a particular location before a	8
search warrant may issue.” Williamson, 2009-NMSC-039, ¶ 14 (internal quotation	9
marks and citation omitted). “The fundamental inquiry is whether there is probable	10
cause to believe there will be evidence of a crime at a particular location.” Evans,	11
2009-NMSC-027, ¶ 25 (emphasis omitted). To meet this constitutional requirement,	12
“sufficient facts [must be] presented in [the] sworn affidavit to enable the [issuing	13
judge] to make an informed, deliberate, and independent determination that probable	14
cause exists” to believe that evidence of a crime will be found at the stated location.	15
State v. Gonzales, 2003-NMCA-008, ¶ 11, 133 N.M. 158, 61 P.3d 867, abrogated	16
on other grounds by Williamson, 2009-NMSC-039, ¶ 29.	17
{5} Like the issuing judge, we determine whether there is probable cause	18
exclusively from the affidavit. See Cordova, 1989-NMSC-083, ¶ 5. Only	19
information within the four corners of the affidavit is relevant. See State v. Barker,	20

5
1992-NMCA-117, ¶ 2, 114 N.M. 589, 844 P.2d 839 (“Probable cause for issuance	1
of a search warrant must be established from within the four corners of the affidavit	2
tendered in support of the warrant.”).	3
{6} When the evidence in an affidavit that supports probable cause is “hearsay in	4
whole or in part,” as it is in this case, the affidavit must provide sufficient	5
information to show that “there is a substantial basis [(1)] for believing the source	6
of the hearsay to be credible and [(2)] for believing that there is a factual basis for	7
the information furnished” by that source. Rule 5-211(E) NMRA. Rule 5-211(E)	8
codifies the two-part test described in Aguilar v. Texas, 378 U.S. 108 (1964),	9
abrogated by Illinois v. Gates, 462 U.S. 213 (1983), and Spinelli v. United States,	10
393 U.S. 410 (1969), abrogated by Gates, 462 U.S. 213. See Cordova, 1989-NMSC-	11
083, ¶¶ 7-10. Although the Aguilar-Spinelli test has been replaced in the analysis of	12
the Fourth Amendment to the United States Constitution by a “totality of the	13
circumstances” test adopted by the United States Supreme Court in its decision in	14
Gates, New Mexico’s state courts continue to apply the Aguilar-Spinelli test when	15
deciding questions of state constitutional law. See Cordova, 1989-NMSC-083, ¶ 17	16
(concluding that “our present court rules [adopting the Aguilar-Spinelli test] better	17
effectuate the principles behind Article II, Section 10 of [the New Mexico]	18
Constitution than does the ‘totality of the circumstances’ test set out in Gates”).	19

6
1. The Warrant and the Affidavit	1
{7} The court issued a warrant authorizing a search of Defendant’s residence	2
based on a supporting affidavit prepared by Sergeant Sandoval, a law enforcement	3
officer assigned to the Region V Drug Task Force. The warrant authorized officers	4
to search for narcotics and for evidence of drug trafficking, including firearms and	5
other objects commonly used by drug traffickers.	6
{8} The affidavit submitted to secure the search warrant provided the following	7
information attributed to the confidential informant (CI), referred to in the affidavit	8
as “the source”:	9
Affiant was made aware of a male identified as [Defendant] who was	10
selling narcotics from his residence . . . . In conducting this	11
investigation, affiant used one confidential source. The source is	12
familiar with controlled substances, through extensive association with	13
drug traffickers and users. Source has established their credibility and	14
reliability by providing information that has been independently	15
verified by other sources of information. This source has never relayed	16
inaccurate or dishonest information to law enforcement. In addition, the	17
source has made no less than three controlled purchases of controlled	18
substances. . . . Based on the facts, I believe the source[’]s information	19
to be credible and reliable.	20
I was contacted by the source who had information on a drug dealer	21
they identified as [Defendant]. Source told agent within [seventy-two]	22
hours of May 24[,] 2023[,] they observed [Defendant] with a large	23
amount of cocaine in his possession. Source stated [Defendant] had this	24
large amount of [c]ocaine at his residence[,] which was described to be	25
. . . in Clovis[,] New Mexico. Source stated it was in a large lunch bag	26
[that] had cocaine inside of it and it was located in the kitchen above	27
the sink in a cabinet[. S]ource described it to look as though it was	28
possibly [twenty] ounces of cocaine. Source also described [Defendant]	29

7
to have a firearm in his vehicle[] as well. . . . Source also informed me	1
that [Defendant] does have in his possession a lot of firearms.	2
In addition to this information attributed to the CI, the affidavit included information	3
gathered by law enforcement, including, in relevant part, (1) verification on a police	4
data system that the address provided by the CI was, in fact, Defendant’s residence;	5
(2) information from police records that Defendant had been “found guilty of	6
trafficking narcotics[, first] offense in August 2013”; (3) information provided to the	7
affiant, Sergeant Sandoval, by Sergeant Orozco of the Clovis Police Department,	8
“that [Sergeant Orozco] had seen a social media post in the past showing [Defendant]	9
firing a fully automatic AR style firearm”; and (4) Sergeant Sandoval’s sworn	10
statements, “In my training and experience it is common for someone to have	11
packaging, digital scales, and finger scales used in the distribution or trafficking of	12
illegal narcotics,” and “I know drug traffickers to communicate sales of narcotics	13
through their cellular devices, and keep ledgers of how much they have sold and to	14
who for how much money . . . [and also] I know drug traffickers to be armed so to	15
keep from being robbed of their narcotics or money from the sales of narcotics.”	16
{9} Based on this affidavit, the judge issued a warrant to search Defendant’s	17
residence for illegal narcotics, narcotics paraphernalia, and for a list of items	18
identified by Sergeant Sandoval in his affidavit as commonly associated with drug	19

8
trafficking, including firearms. The warrant also authorized the search of	1
Defendant’s car for firearms.4
2
2. The Aguilar-Spinelli Test for a CI’s Hearsay Information	3
{10} Defendant contends on appeal that the hearsay information provided by the	4
CI and contained in the affidavit does not provide a substantial basis to support the	5
issuing judge’s determination that there was probable cause for the issuance of the	6
warrant under the Aguilar-Spinelli standard. Defendant argues that the affidavit does	7
not adequately explain the underlying circumstances from which Sergeant Sandoval	8
concluded that the CI was credible or the underlying basis of knowledge supporting	9
the reliability of the CI’s information. Defendant also contends that the affidavit fails	10
to establish probable cause for trafficking cocaine and that therefore including	11
firearms, digital scales, and other items relating to trafficking as items subject to	12
search and seizure was not supported by probable cause.	13
{11} The State points in response to similar statements that were found sufficient	14
by our appellate courts to establish probable cause to believe a CI credible, and to	15
establish the basis of knowledge and the reliability of the information conveyed by	16
4Officers executing the warrant found and seized twenty ounces of cocaine in
what they described in their inventory as a lunch pail, eleven pistols, three rifles, a
shotgun, body armor, loose and boxed ammunition, as well as five digital scales,
five cell phones, five boxes of baggies, and other items associated with drug
trafficking. All of the items seized (with the exception of a firearm found in a car
that was not Defendant’s) were found in the residence. No evidence was found in or
seized from Defendant’s vehicle.

9
the CI. The State argues that the affidavit satisfied both prongs of the Aguilar-	1
Spinelli test, allowing the issuing judge to find probable cause that evidence of both	2
possession of cocaine and trafficking of cocaine would be found in Defendant’s	3
residence.	4
{12} We begin with the first prong of the Aguilar-Spinelli test—the requirement	5
that the affidavit show “a substantial basis for believing the [CI]”—referred to as the	6
credibility or veracity prong. See Cordova, 1989-NMSC-083, ¶ 11.	7
3. The Credibility or Veracity Prong	8
{13} Defendant’s challenge to the adequacy of the affidavit to establish the CI’s	9
credibility focuses on three alleged shortcomings. Defendant claims that (1) the	10
affidavit failed to disclose to the issuing judge that the CI was a criminal informant,	11
rather than a citizen informant; (2) the affidavit relied solely on the CI’s participation	12
with law enforcement in controlled purchases of narcotics; and (3) Sergeant	13
Sandoval’s sworn statement in the affidavit that the CI provided information	14
“independently verified by other sources” is meaningless. We are not persuaded by	15
any of these three arguments.	16
{14} First, Defendant’s claim that the affidavit failed to disclose to the issuing	17
judge that the CI was a criminal informant is not supported by our review of the	18
affidavit’s language. The affidavit describes the CI as someone who “is familiar with	19
controlled substances through extensive association with drug traffickers and users.”	20

10
It goes on to describe the CI’s involvement in several controlled purchases arranged	1
by law enforcement, work that is often performed by criminal informants.	2
Reviewing both this information and the remaining information in the affidavit as a	3
whole, interpreting its terms in a commonsense and realistic fashion, without	4
imposing a requirement of elaborate specificity, as New Mexico precedent directs,	5
we conclude that the issuing judge was adequately informed that the CI was a	6
criminal informant. See State v. Trujillo, 2011-NMSC-040, ¶ 19, 150 N.M. 721, 266	7
P.3d 1 (“[R]eviewing courts should not invalidate the warrant by interpreting the	8
affidavit in a hypertechnical, rather than commonsense, manner.” (alteration,	9
internal quotation marks, and citation omitted).	10
{15} Defendant next argues that the affidavit relies solely on the CI’s work with	11
law enforcement making controlled purchases of narcotics. This Court has held in	12
State v. Vest, 2011-NMCA-037, 149 N.M. 548, 252 P.3d 772, that information about	13
a CI participating reliably in officer-supervised controlled purchases of drugs is not	14
alone sufficient to satisfy the veracity prong of the Aguilar-Spinelli test. See Vest,	15
2011-NMCA-037, ¶ 17. The reason a CI’s reliable participation in controlled	16
purchases does not alone satisfy the veracity prong is that making a controlled	17
purchase is not sufficiently similar to obtaining and providing law enforcement with	18
information concerning an ongoing crime—the task that must be credibly performed	19
to support the issuance of a search warrant. See id. (concluding that information	20

11
solely about the CI’s participation in controlled purchases of narcotics “does not	1
directly bear upon the informant’s previous reliability in obtaining and relating	2
information about criminal activity”). The affidavit in this case, however, unlike that	3
in Vest, does provide information bearing upon the CI’s previous reliability in	4
obtaining and relating information to law enforcement about criminal activity. Much	5
like the affidavit found sufficient to satisfy the credibility prong of the Aguilar-	6
Spinelli test in Cordova, the affidavit in this case states that, “Source has established	7
their credibility and reliability by providing information that has been independently	8
verified by other sources of information,” and that “[t]his source has never relayed	9
inaccurate or dishonest information to law enforcement.” See Cordova, 1989-	10
NMSC-083, ¶ 20.	11
{16} Although the affidavit does not provide detail about the information provided	12
to officers by the CI in the past, our Supreme Court in Cordova accepted similar	13
descriptions of a CI’s prior reliable performance as sufficient to establish their	14
credibility, concluding that so long as the issuing judge could infer “that the	15
reference to information supplied by the informant in the past involved information	16
that was relevant to a police investigation,” the issuing judge’s determination of	17
probable cause would not be disturbed. See id. The affidavit here, like the affidavit	18
in Cordova, was sufficient to create an inference that the information provided by	19
the CI and verified by others related to a criminal investigation. We therefore reject	20

12
Defendant’s claim that the affidavit relied solely on the CI’s participation with law	1
enforcement in controlled purchases of narcotics.	2
{17} Finally, we do not agree that Sergeant Sandoval’s sworn statement in the	3
affidavit that the CI provided information “independently verified by other sources”	4
is meaningless. When understood in the context of the CI providing information	5
related to a criminal investigation, the statement that the information provided by	6
the CI was “independently verified by other sources,” informs the issuing judge that	7
similar information about a crime provided by the CI in the past was credible and	8
reliable. Therefore, we conclude that there is a substantial basis in the affidavit for	9
the issuing judge’s determination that the credibility/reliability prong of the Aguilar-	10
Spinelli test was satisfied. See Vest, 2011-NMCA-037, ¶ 18 (recognizing that	11
“minimal details can be sufficient to demonstrate a [CI]’s reliability”).	12
4. The Basis of Knowledge Prong	13
{18} In applying the second prong of the Aguilar-Spinelli test—the basis of	14
knowledge prong—“we ask whether the affidavit provides a substantial basis for	15
concluding the informant[] gathered the information of illegal activity in a reliable	16
fashion.” State v. Haidle, 2012-NMSC-033, ¶ 23, 285 P.3d 668 (internal quotation	17
marks and citation omitted). This prong “requires that the affidavit include a factual	18
basis for the information furnished, so that the judge [or magistrate] may make an	19
independent determination of probable cause.” State v. Lujan, 1998-NMCA-032,	20

13
¶ 4, 124 N.M. 494, 953 P.2d 29; see Rule 5-211(E) (requiring a substantial basis “for	1
believing that there is a factual basis for the information furnished”).	2
{19} Defendant argues that the information contained in the affidavit did not satisfy	3
the basis of knowledge prong because the affidavit fails to state clearly: (1) whether	4
the CI saw Defendant with cocaine in his personal, physical possession or just in	5
Defendant’s home, (2) exactly when and why the CI was at Defendant’s home, (3)	6
how the CI knew the cocaine was “in the kitchen above the sink in a cabinet”, (4) if	7
the CI saw guns, (5) whether the CI bought drugs from Defendant or saw Defendant	8
sell drugs to others, (6) how the CI recognized the drugs as cocaine, (7) whether the	9
CI observed objects commonly used for trafficking in Defendant’s house, including	10
scales, cell phones, firearms, cash or other items, and (8) whether the CI recently	11
saw a firearm in Defendant’s car. Defendant also claims that the information that	12
Defendant had been convicted of trafficking nine years previously and the report that	13
a law enforcement officer saw Defendant with a “fully automatic AR style firearm”	14
on Defendant’s social media post does not provide sufficient corroboration to cure	15
any deficit in the affidavit concerning specifically the search for firearms.	16
{20} The State contends in response that the affidavit allowed the issuing judge to	17
reasonably infer that the CI had first-hand knowledge of the commission of a crime	18
based on CI’s personally observing and describing a large lunch bag filled with	19
approximately twenty ounces of cocaine in a kitchen cabinet above the sink in	20

14
Defendant’s home. According to the State, the CI’s description of the cocaine, its	1
specific location, the estimate of the amount, and its unusual packaging and location	2
in Defendant’s home is sufficient factual detail from which the issuing judge could	3
reasonably infer that the CI personally observed evidence relating to the commission	4
of both possession and trafficking of a controlled substance on the premises sought	5
to be searched. We agree with the State.	6
{21} Our Supreme Court recently addressed the information necessary to meet the	7
basis of knowledge prong of the Aguilar-Spinelli test in its opinion in Perea, a case	8
that, much like this one, involved the issuance of a warrant for the search of a home	9
based on a CI’s description of observing narcotics in a defendant’s home. See 2025-	10
NMSC-035, ¶ 3. Our Supreme Court in Perea clarified that the basis of knowledge	11
prong requires reliable evidence of only the two matters essential to establish	12
probable cause for a search: (1) that the items sought to be seized are evidence of a	13
crime, and (2) that the criminal evidence sought “is located at the place to be	14
searched.” Id. ¶ 17 (internal quotation marks and citation omitted).	15
{22} The Court then turned to examine the factual basis described by the CI to	16
establish these two essential elements. Perea concludes that the basis of knowledge	17
prong can be satisfied by the CI’s first-hand observation, but emphasizes that mere	18
assurances that the CI personally observed criminal conduct is not sufficient. Id.	19
¶ 23. Even an affidavit based on first-hand observation must include “some of the	20

15
underlying circumstances from which the informant concluded that the facts were as	1
[they] claimed they were.” Id. (emphasis, internal quotation marks, and citation	2
omitted). In other words, it is insufficient for a CI to simply claim that they have	3
first-hand knowledge of a crime; they must provide the specific circumstances,	4
describing the crime they observed and the location of the evidence of that crime.	5
{23} The Court also explained that, on the other hand, an explicit statement	6
confirming that the CI observed the crime in the location claimed is not always	7
required. See id. ¶ 24. An affidavit need not state that the CI personally observed the	8
facts described if the CI is otherwise credible and the tip is sufficiently detailed to	9
be self-verifying. See id. A tip is self-verifying when it is sufficiently detailed to	10
create a reasonable inference that the information either is based on first-hand	11
observation or based on something that could only be known by someone who is	12
intimately connected with the wrongdoing. See id. These requirements allow the	13
issuing judge or magistrate to confirm that the CI’s claims are reliably based on	14
personal knowledge rather than rumor or reputation. See id. ¶¶ 25-26.	15
{24} Applying this analysis to the affidavit here, we conclude that the affidavit	16
provided sufficient facts supporting the CI’s personal knowledge of the commission	17
of a crime in Defendant’s home. The issuing judge properly relied on the affidavit,	18
which states, in pertinent part:	19
[W]ithin [seventy-two] hours of [the date the warrant was sought the	20
CI] observed [Defendant] with a large amount of cocaine in his	21

16
possession. [The CI] stated [Defendant] had this large amount of	1
[c]ocaine at his residence[,] which was described to be . . . in Clovis[,]	2
New Mexico. [The CI] stated it was in a large lunch bag [that] had	3
cocaine inside of it and it was located in the kitchen above the sink in a	4
cabinet[. The CI] described it to look as though it was possibly [twenty]	5
ounces of cocaine.	6
{25} This statement, by its express use of the word “observed,” by the specificity	7
of the description of the unusual location and packaging of the cocaine, and by its	8
description of the amount, establishes that the CI personally observed an illegal	9
substance in Defendant’s home. The affidavit provides enough factual detail to allow	10
the issuing judge to reasonably infer that the CI had personally observed the evidence	11
described, giving the judge “probable cause to believe that a search [of Defendant’s	12
home would] uncover evidence of wrongdoing.” See Williamson, 2009-NMSC-039,	13
¶ 29.	14
{26} In addition to challenging the sufficiency of the information provided by the	15
CI to establish a substantial basis to believe that possession of a controlled substance	16
was occurring in Defendant’s home, we understand Defendant to argue that the	17
terms of the warrant authorizing the seizure of items associated with trafficking—	18
firearms, cell phones, cash—are overbroad because the affidavit failed to establish	19
probable cause for trafficking. Although our Supreme Court in Perea recently	20
decided that to support issuance of a search warrant, an affidavit need only establish	21
probable cause to believe that any crime is occurring in the location claimed, and	22
need not establish that the highest level of crime claimed is occurring, Perea did not	23

17
address the overbreadth argument made here. See 2025-NMSC-035, ¶ 32 n.2 (noting	1
that overbreadth was not argued by the appellant, and would not be considered by	2
the Court).	3
{27} We need not address Defendant’s overbreadth argument in this case either	4
because we conclude that the affidavit established probable cause to believe	5
evidence of trafficking would be found. The affidavit in this case describes in detail	6
the CI’s first-hand observation of the cocaine, naming the specific location where	7
the cocaine was observed (in a kitchen cabinet, over the sink), describing the	8
container holding the cocaine (a large lunch bag), and estimating the amount	9
observed at twenty ounces. The affidavit states that the CI is familiar with controlled	10
substances “through extensive association with drug traffickers and users,” thus	11
providing a basis for the CI’s ability to estimate the amount observed. Sergeant	12
Sandoval describes the amount of cocaine observed by the CI as a “large amount,”	13
which he treats throughout the affidavit as consistent with trafficking. Cf.	14
Donaldson, 1983-NMCA-064, ¶ 25 (“Proof of possession of a large quantity of a	15
controlled substance, inconsistent with personal use, is sufficient proof of trafficking	16
in a controlled substance.”). Sergeant Sandoval relies on the “large amount” of	17
cocaine to opine, based on his experience and training, that it is likely that there will	18
be digital and finger scales, cellular devices, and ledgers, as well as firearms, all	19
items associated with drug trafficking, found in Defendant’s home. Finally, Sergeant	20

18
Sandoval reports that police records show that Defendant has a conviction for	1
trafficking in the past. Although such a conviction is not sufficient to establish	2
probable cause, it can be relied on to help corroborate other current evidence. See	3
Vest, 2011-NMCA-037, ¶ 21 (“[E]ven though information is not sufficient to	4
provide probable cause does not mean that it cannot serve as corroborative	5
information of an informant’s credibility or reliability.”).	6
{28} This affidavit provides a basis in the first-hand observation and personal	7
knowledge provided by the CI, together with the experience and corroborative work	8
of Sergeant Sandoval, for the affidavit’s conclusion that evidence of trafficking is	9
likely to be found in Defendant’s home. The affidavit allows the issuing judge to	10
confirm that the CI’s claims concerning trafficking are reliably based on personal	11
knowledge rather than rumor or reputation. See Perea, 2025-NMSC-035, ¶ 26. We	12
therefore agree with the State that the affidavit established probable cause for both	13
possession and trafficking of cocaine.	14
{29} We agree with the issuing judge that both prongs of the Aguilar-Spinelli test	15
were satisfied by the affidavit in this case. We therefore affirm the issuing judge’s	16
finding of probable cause and the issuance of the warrant to search Defendant’s	17
home, and reverse the district court’s contrary conclusion.5
18
5No evidence was seized from Defendant’s car. We, therefore, do not address
Defendant’s argument that the affidavit failed to establish probable cause for the
search of his car.

19
II. Omissions and Misrepresentations in the Affidavit	1
{30} Defendant next argues that the district court’s suppression of the evidence,	2
even if not supported by the four corners of the affidavit, is justified by what	3
Defendant claims are material misrepresentations and omissions of fact by law	4
enforcement made either deliberately or with a reckless disregard for the truth. In	5
making this claim, Defendant relies on precedent both in this Court and in the federal	6
courts allowing a defendant to present evidence or make an offer of proof to the	7
district court to prove that the affidavit that otherwise is sufficient to establish	8
probable cause contains material falsehoods or omissions, and that these falsehoods	9
and omissions were made deliberately or with reckless disregard for the truth by law	10
enforcement. See Donaldson, 1983-NMCA-064, ¶ 16; Franks v. Delaware, 438 U.S.	11
154, 155-56 (1978). In addition to establishing that the challenged statements or	12
omissions were made deliberately, or with reckless disregard for the truth,	13
Donaldson and Franks provide that a defendant must also establish the materiality	14
of the false statements or omissions to the finding of probable cause. See Donaldson,	15
1983-NMCA-064, ¶¶ 16-17; Franks, 438 U.S. at 155-56. Statements are sufficiently	16
material to invalidate the search warrant if, “because of their inherent probative	17
force, [they] give rise to a substantial probability that, had the [omitted] information	18
been set out or [had the false information been] correctly stated in the affidavit, it	19
would have altered a reasonable [court’s] determination of probable cause.”	20

20
Donaldson, 1983-NMCA-064, ¶ 17; see United States v. Gladney, 48 F.3d 309, 313	1
(8th Cir 1995) (same).	2
{31} Defendant claims the affidavit was deliberately materially false because it: (1)	3
omitted details about the CI’s criminal behavior in the past, and (2) falsely stated	4
that the CI had “observed” Defendant with drugs in his home. Defendant proffered	5
some evidence challenging whether the CI had “observed” Defendant physically in	6
the home, and provided information missing from the affidavit showing that the CI	7
had recent probation violations, had falsified a urine test, and according to Sergeant	8
Sandoval, did “some stupid stuff.” This evidence was provided in the context of	9
Defendant’s motion to obtain the identity of the CI. Defendant never alleged at the	10
hearing on the identity motion that the misrepresentations were made deliberately or	11
with reckless disregard for their truth by law enforcement. The district court,	12
therefore, made no findings of fact on either the falsity of the statements, the	13
materiality of the omissions, or the deliberate nature of law enforcement’s	14
misrepresentations either in the context of the motion to disclose the identity of the	15
CI, or in the context of Defendant’s motion to suppress. At most there is a suggestion	16
in some of the district court’s findings that the court may have relied on facts outside	17
the affidavit in concluding that the affidavit failed to establish probable cause and in	18
suppressing the evidence seized.	19

21
{32} Even assuming the challenged statements and omissions in the probable cause	1
affidavit here were found by the district court to be both false and made deliberately	2
or with reckless disregard for the truth by law enforcement, the warrant must be	3
upheld nonetheless unless Defendant establishes that the misrepresentations and	4
omissions are material to the issuing judge’s probable cause determination and that	5
the issuing judge would have decided differently had they been aware of the truth.	6
See Donaldson, 1983-NMCA-064, ¶¶ 16-17. In other words, Defendant must	7
establish, after removing any false statement, that the affidavit’s remaining content	8
is insufficient to establish a substantial basis for the issuing judge’s finding of	9
probable cause, see id. ¶ 16, or that “the affidavit, if supplemented by the omitted	10
information, could not support a finding of probable cause.” See Gladney, 48 F.3d	11
at 313 (internal quotation marks and citation omitted). Defendant admits in his brief	12
on appeal that the materiality requirement must be met.	13
{33} We address first Defendant’s claim that information about the CI’s criminal	14
history and Sergeant Sandoval’s statement that the CI “does some stupid stuff” is	15
material to the probable cause determination and, if known to the issuing judge	16
would have altered a reasonable judge’s determination of probable cause. Defendant	17
alleges that this information was material to the issuing judge’s determination that	18
the CI was credible under the Aguilar-Spinelli test.	19

22
{34} We are not persuaded that this information is material to the credibility prong	1
of the Aguilar-Spinelli test. The credibility prong does not require the affidavit to	2
provide or the issuing judge to explore the CI’s criminal history and character.	3
Although recognizing that there is no surefire way to determine that a criminal CI is	4
not fabricating information, “[w]e accept past performance as indicia of veracity	5
because of the probability that the uncertain present result will be the same as in the	6
past.” State v. Knight, 2000-NMCA-016, ¶ 20, 128 N.M. 591, 995 P.2d 1033,	7
holding limited on other grounds by Williamson, 2009-NMSC-039, ¶ 29. As we have	8
already determined, the affidavit includes sufficient information about the CI’s	9
history of providing reliable information about ongoing crimes to law enforcement	10
to meet the credibility requirement under our precedent, and the omitted information	11
about this CI’s criminal past would not undermine this finding.	12
{35} We next address Defendant’s claim that the affidavit falsely stated that	13
Defendant physically observed the Defendant in the home when the CI saw the	14
cocaine. We are not persuaded that Defendant’s physical presence in the home is	15
material to whether there was probable cause to issue the warrant. We have	16
concluded previously in this opinion that the only information that is material to the	17
issuing judge’s finding of probable cause to issue a warrant is information that (1) a	18
crime is occurring, and (2) it is occurring in the location specified. See Perea, 2025-	19
NMSC-035, ¶ 17. We note that the warrant issued here was not an arrest warrant	20

23
directed at a search of Defendant’s person and did not require Defendant’s physical	1
presence to establish that the crimes of possession and trafficking of cocaine were	2
occurring in the home. Whether Defendant was physically in possession of the	3
cocaine is not material or even relevant to the issuing judge’s determination that	4
there was probable cause that a large amount of cocaine would be found in	5
Defendant’s home.	6
{36} Even if we assume, without deciding, that the two statements Defendant	7
highlights are deliberate falsehoods, deliberate omissions, or were made with	8
reckless disregard for the truth, we conclude that Defendant cannot show that these	9
falsehoods and omissions, if known to the issuing judge, would have altered the	10
probable cause determination. Therefore, to the extent the district court relied on the	11
evidence or proffer made by Defendant alleging deliberate falsehoods and	12
omissions, it erred in invalidating the warrant and suppressing the evidence seized	13
on this basis.	14
CONCLUSION	15
{37} We reverse the district court’s decision suppressing the evidence seized by the	16
search of Defendant’s home, and remand for further proceedings consistent with this	17
opinion.	18
{38} IT IS SO ORDERED.	19
_________________________	20
JANE B. YOHALEM, Judge	21

1 3 2
WE CONCUR:
ZACHARY A. IVES, Judge
4 5
Katherine a. Wray
KATHERINE A. WRAY, Judge
24