State v. Price

Office of the Director New Mexico
08:26:50 2020.09.01 Compilation
'00'06- Commission

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2020-NMSC-014

Filing Date: August 3, 2020

No. S-1-SC-37373

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

JAYCOB MICHAEL PRICE,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Cindy Leos, District Judge

Released for Publication September 8, 2020.

Hector H. Balderas, Attorney General
Marko David Hananel, Assistant Attorney General
Santa Fe, NM

for Appellant

Bennett J. Baur, Public Defender
Kimberly M. Chavez Cook, Appellate Defender
Santa Fe, NM

for Appellee

OPINION

VIGIL, Justice.

{1} The district court suppressed records that police officers obtained from
Defendant Jaycob Michael Price’s cell phone provider pursuant to a search warrant.
Under the authority of the search warrant, the officers obtained (1) subscriber
information consisting of Defendant’s name, date of birth, social security number, and
address, (2) cell-site location information (CSLI), and (3) a list of calls and text
messages to and from Defendant’s cell phone (call/text records). The district court ruled
that the affidavit for the search warrant (Affidavit) established probable cause to obtain
Defendant’s subscriber information but failed to establish probable cause for the CSLI
and call/text records, and ordered suppression of the CSLI and call/text records. See
Rule 5-211(A)(4) NMRA (2012, amended 2017) (“A warrant shall issue only on a sworn
written statement of the facts showing probable cause for issuing the warrant.”). The
State appeals as permitted by both statute and procedural rule. NMSA 1978, § 39-3-
3(B)(2) (1972); Rule 12-201(A)(1)(a) NMRA. Jurisdiction properly lies with this Court
because Defendant is charged with first-degree felony murder. See State v. Smallwood,
2007-NMSC-005, ¶ 11, 141 N.M. 178, 152 P.3d 821 (concluding “that the legislature
intended for [this Court] to have jurisdiction over interlocutory appeals in situations
where a defendant may possibly be sentenced to life imprisonment or death”). We
affirm in part and reverse in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Affidavit for the Search Warrant

{2} The Affidavit states that on April 2, 2013, at approximately 11:53 p.m., two
officers were dispatched to the parking lot of an apartment complex in reference to a
shooting. Upon arriving, they made contact with two women at the scene, Margarita and
Linda, who were standing next to a sport utility vehicle (SUV). Julio Apodaca (Victim)
was lying on the ground next to the SUV and bleeding from his head. Rescue personnel
were immediately dispatched to take Victim to the hospital. Margarita told one of the
officers that Victim, whom she identified as her brother-in-law, had called her and asked
to borrow money. Margarita agreed and told Victim to come to her apartment, where
she gave him $100. Victim then left Margarita’s apartment for an unknown destination.

{3} About thirty minutes after Victim left the apartment, Margarita and Linda went to
get cigarettes, and while they were walking through the parking lot Margarita saw
Victim’s SUV. As she approached the SUV, Margarita saw Victim sitting in the driver’s
seat, bleeding from his head. Margarita immediately called 911, and she and Linda
performed CPR as instructed until the officers arrived. Victim was taken to the hospital
where he was pronounced dead, apparently as a result of a gunshot wound to his head.

{4} Uniformed officers secured the SUV and the surrounding area, and homicide
detectives arrived to investigate. At approximately 4:11 a.m. on April 3, 2013, a
detective obtained a search warrant to search the SUV. Pursuant to this search warrant,
Victim’s cell phone was seized from the SUV, and upon physically examining the cell
phone detectives discovered that one of the numbers (505-702-4250) was among both
the “dialed” and the “received” calls but was not listed as a “contact” in the cell phone. In
handwriting the Affidavit adds that the “dialed” and “received” calls to and from 505-702-
4250 were placed between the time when Margarita had last seen Victim and when she
discovered him in the SUV⸻an interval of approximately thirty minutes.

{5} A detective phoned 505-702-4250, and when no one answered, the detective
hung up without leaving a message. The Affidavit recites that the identity of this person
is “crucial” to the investigation and asks that a search warrant be issued to the provider
of cell phone number 505-702-4250 (Sprint/Nextel Communications) for the subscriber
information and for CSLI and call/text records for the April 1 to April 5, 2013, period. The
record proper does not disclose precisely which CSLI and call/text records police
obtained pursuant to the search warrant because the record proper on appeal does not
include the search warrant’s return and inventory. See Rule 9-214 NMRA (“Search
warrant”) (including the “RETURN AND INVENTORY” form with the form prescribed for
authorization of a search warrant). However, at the hearing on the motion to suppress
the cell phone records, the district court asked counsel what was obtained pursuant to
the search warrant and learned that the records obtained were Defendant’s subscriber
information and CSLI and call/text records as we have described.

B. Proceedings in the District Court

{6} Information provided in the Affidavit and obtained from further investigation tied
Defendant to the number. Defendant was indicted on several charges, including first-
degree felony murder of Victim.

{7} Defendant filed a motion to suppress the cell phone records obtained under the
search warrant. Defendant argued that the Affidavit failed to establish probable cause
for the cell phone records because “[t]he only fact in the affidavit related to the
telephone number (505) 702-4250 is that it was dialed and received by [Victim’s]
phone.” Defendant asserted that this did not amount to substantial evidence of probable
cause because “otherwise the police would be able to seize the cell phone records of
every single person that called, or was called, by a victim.” In response, the State
asserted that the Affidavit established probable cause for the district court to issue the
search warrant.

{8} Following a hearing, the district court issued a written order partially granting the
motion to suppress. The district court determined that the Affidavit “lacked sufficient
detail to establish probable cause for the scope of this search” because “[o]ther than
noting that the calls were made to and from the listed phone number, this is no nexus
between 505-7[02]-4250 and this crime.” The district court’s order stated that “there is
no indication within the four corners of the warrant as to when . . . [Victim] called
[Margarita], there is no indication when he arrived at her apartment, how long he stayed
at the apartment or when he received the money and ultimately left.” The district court’s
order repeated, “Other than noting that the calls were made to and from the listed phone
number, this is no nexus between 505-7[02]-4250 and this crime.” The district court
therefore concluded, “Allowing the search beyond the basic identifying information as to
the subscriber of this phone number is overly broad, intrusive and not supported by
probable cause.” Accordingly, the district court granted the motion to suppress as to the
CSLI and call/text records and denied the motion to suppress as to the subscriber
information.

II. DISCUSSION

A. Carpenter v. United States
{9} In Carpenter v. United States, ___ U.S.___, 138 S. Ct. 2206, 2221, 2223 (2018),
the United States Supreme Court held that the Fourth Amendment to the United States
Constitution requires a search warrant supported by probable cause to obtain CSLI
records from a cell phone provider. 1 As described in Carpenter, CSLI is information
collected and stored by wireless carriers “for their own business purposes.” Id. at 2212.
CSLI consists of “a time-stamped record” created each time a cell phone connects to
the radio antennas of a wireless carrier’s network. Id. at 2211. These radio antennas are
called “cell sites.” Id. “Cell sites typically have several directional antennas that divide
the covered area into sectors.” Id. Most cell phones connect to the antennas of the
nearest cell sites “several times a minute whenever their signal is on, even if the owner
is not using one of the phone’s features.” Id. The CSLI supports “mapping” of the
approximate locations of a cell phone over time by “triangulation” of the locations of the
antennas of cell sites with which the cell phone has simultaneously connected. Id. at
2217, 2219. See State v. Carrillo, 2017-NMSC-023, ¶ 34, 399 P.3d 367 (describing how
a cell phone operates by continually sending signals to and collecting signals from cell
towers throughout the cell network).

{10} This mapping of a cell phone’s locations in a period of time “provides an all-
encompassing record of the holder’s whereabouts.” Carpenter, 138 S. Ct. at 2217. “A
cell phone faithfully follows its owner beyond public thoroughfares and into private
residences, doctor’s offices, political headquarters, and other potentially revealing
locales.” Id. at 2218. Thus, CSLI data “provides an intimate window into a person’s life,
revealing not only his particular movements, but through them, his familial, political,
professional, religious, and sexual associations.” Id. at 2217 (internal quotation marks
and citation omitted). Because “individuals have a reasonable expectation of privacy in
the whole of their physical movements[,]” intrusion into that private sphere, the United
States Supreme Court held, qualifies as a search under the Fourth Amendment and
requires a warrant supported by probable cause. Id. at 2213, 2217; see Katz v. United
States, 389 U.S. 347, 351, 357 (1967) (holding that “the Fourth amendment protects
people, not places” and that when an individual “seeks to preserve [something] as
private” and this expectation of privacy is “constitutionally protected,” official intrusion
into that privacy is a search that requires a warrant supported by probable cause).

B. Standard of Review

{1} The search warrant was issued by a district court judge who determined that
there was probable cause to believe there would be evidence of a crime in Defendant’s
1
Under the New Mexico Electronic Communications Privacy Act, NMSA 1978, §§ 10-16F-1 to -4 (2019, as amended
through 2020), “the search and seizure of electronic information” must “comply with all New Mexico and federal
laws, including laws prohibiting, limiting or imposing additional requirements on the use of search warrants,” § 10-
16F-3(D)(3). Applicable provisions allow “retention of electronic communication information” seized if “there is
probable cause to believe that the information constitutes criminal evidence.” See §§ 10-16F-3(D), (H)(2) (2019).
Current amendments to Section 10-16F-3 “plac[ing] additional requirements on government entities when
obtaining warrants for the search and seizure of electronic information,” see § 10-16F-3 annot. to the 2020
amendment (effective March 4, 2020), were not in effect when the search warrant issued in this case. We express
no opinion on what impact, if any, the statutes and the current amendments might have on the result reached in
this case.
cell phone records. The issuing judge’s determination of probable cause was then
reviewed by a different district court judge who presided over the criminal case, and the
order of the reviewing district court is now before us. As we explain next, the standard
for reviewing the determination of probable cause made by an issuing judge is the
same, whether the review is pursuant to a motion to suppress or on appeal. We now
review the issuing judge’s determination of probable cause using the same standard the
reviewing district court judge was obligated to use.

{12} State v. Williamson, 2009-NMSC-039, ¶ 17, 146 N.M. 488, 212 P.3d 376, pointed
out that under the federal standard of review, an issuing court’s determination of
probable cause under the Fourth Amendment is entitled to “great deference” by a
reviewing court. Applying this deference, the federal standard for reviewing an issuing
court’s determination of probable cause is whether the issuing court had a substantial
basis for concluding that the search would uncover evidence of wrongdoing. Id. If a
substantial basis exists, the reviewing court affirms the issuing court’s finding of
probable cause. Id. ¶ 29. Williamson also recognized that certain prior New Mexico
opinions applied a de novo standard for reviewing an issuing court’s determination of
probable cause. Id. In expressly disavowing these opinions, the Williamson Court
aligned New Mexico with the federal standard, holding that a “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. In ruling on the
motion to suppress in this case, the district court was required to apply this standard to
the issuing court’s finding of probable cause. Likewise, our inquiry focuses on the
issuing court’s finding of probable cause and not the district court’s conclusion when it
ruled on the motion to suppress. State v. Evans, 2009-NMSC-027, ¶ 12, 146 N.M. 319,
210 P.3d 216; see State v. Trujillo, 2011-NMSC-040, ¶ 19, 150 N.M. 721, 266 P.3d 1
(“[U]nder a deferential standard the reviewing judge does not substitute his or her
judgment for that of the issuing judge.”).

{13} “[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.” Williamson, 2009-NMSC-039, ¶ 30. “[T]he
substantial basis standard is not tantamount to rubber-stamping the decision of the
issuing court and does not preclude the reviewing court from conducting a meaningful
analysis of whether the search warrant was supported by probable cause.” Id. When
“the factual basis for 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. (brackets omitted) (internal quotation marks and citation
omitted). The deferential substantial basis standard of review established in Williamson
continues to govern our review of an issuing court’s finding of probable cause. See
State v. Gurule, 2013-NMSC-025, ¶¶ 16-17, 303 P.3d 838; State v. Haidle, 2012-
NMSC-033, ¶ 10, 285 P.3d 668.

C. Probable Cause
{14} The constitutional validity of a search warrant, under the Fourth Amendment as
well as Article II, Section 10 of the New Mexico Constitution, depends on whether the
affidavit for search warrant demonstrates that there is probable cause to believe that a
crime is occurring or that seizable evidence of a crime exists at a particular location.
Williamson, 2009-NMSC-039, ¶ 14.

Probable cause exists when there are reasonable grounds to
believe that an offense has been or is being committed in the place to be
searched. Probable cause is not subject to bright line, hard-and-fast rules,
but is a fact-based determination made on a case-by-case basis. 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. When ruling on probable cause, we deal only in the
realm of reasonable possibilities, and look to the totality of the
circumstances to determine if probable cause is present.

Id. ¶ 31 (internal quotation marks and citations omitted) (quoting State v. Nyce, 2006-
NMSC-026, ¶ 10, 139 N.M. 647, 137 P.3d 587, disavowed on other grounds by
Williamson, 2009-NMSC-039, ¶ 29). In other words, “before a valid search warrant may
issue, the affidavit must show: (1) that the items sought to be seized are evidence of a
crime; and (2) that the criminal evidence sought is located at the place to be searched.”
Evans, 2009-NMSC-027, ¶ 11 (internal quotation marks and citation omitted).

{15} In our review of an affidavit for probable cause, we cannot consider “[a]ny
information that was not provided to the issuing judge at the time the search warrant
affidavit and warrant were presented[.]” State v. Sabeerin, 2014-NMCA-110, ¶ 13, 336
P.3d 990. This requires our review to focus on “the information contained in the four
corners of the affidavit.” Gurule, 2013-NMSC-025, ¶ 17.

D. Analysis

{16} We now apply the deferential standard of review to determine whether the
Affidavit as a whole, and the reasonable inferences that may be drawn therefrom,
provided a substantial basis for the issuing judge to determine there was probable
cause to believe that (1) the cell phone subscriber information, (2) the CSLI, and (3) the
call/text records contained evidence of a crime. We begin with the CSLI which, as we
have discussed, requires a search warrant for police to obtain from a cell phone
provider. See Carpenter, 138 S. Ct. at 2221.

{17} Defendant argues that facts necessary to establish probable cause to obtain his
CSLI were missing from the Affidavit. Defendant contends that the Affidavit contains no
facts establishing (1) that the calls between Defendant’s cell phone and Victim’s cell
phone actually connected and for how long, (2) whether there was communication
between Defendant and Victim prior to the night he died, (3) whether Victim generally
saved contacts in his phone, (4) whether law enforcement tried more than once to
contact Defendant, and (5) whether there were calls to or from other numbers during the
thirty-minute window. Defendant argues further that the critical issue is whether
Defendant and Victim actually spoke, not whether calls were dialed and received
between them. We are not persuaded.

{18} The district court’s determination and Defendant’s argument that the calls
demonstrated no nexus to the crime other than the fact that Victim’s phone logged calls
made to and from the listed number are both erroneous. Police discovered Victim’s cell
phone during an authorized search and manually inspected the cell phone. They found
a number, not saved in Victim’s cell phone contacts, for both a “dialed” call and a
“received” call made within thirty minutes before Victim’s death. When police attempted
to contact Defendant’s cell phone number, nobody answered. The other information
supporting a finding of probable cause included that Victim had contacted Margarita late
at night to borrow money, went to her apartment to obtain the money, and was shot in
the apartment’s parking lot within thirty minutes after leaving Margarita’s apartment.
“We have never said that police must establish every link in the inferential chain that
leads to probable cause. Rather, all that is required is that police make a showing that
permits ‘more than a suspicion or possibility but less than a certainty of proof.’” Evans,
2009-NMSC-027, ¶ 22 (citation omitted). The calls linked to the cell phone number of
the unknown subscriber were relevant to Victim’s shooting.

{19} CSLI is the record of the locations of a cell phone over time. Probable cause to
believe that a crime has been committed will “often exist simultaneously” with probable
cause to believe that there is evidence at the place to be searched. Id. ¶ 24. When this
is not the case, “[t]he fundamental inquiry is whether there is probable cause to believe
there will be evidence of a crime at a particular location [i.e., place].” Id. ¶ 25 (emphasis
in original). Here, the place to be searched is within the record of cell phone locations
held by the cell phone provider, which include where the cell phone was located at the
time of the calls between Defendant’s cell phone and Victim’s. A fair inference from the
Affidavit is that Victim left Margarita’s apartment late at night, after borrowing money
from her, and went to his SUV in the apartment parking lot where he had conversations
with an unknown person before he was shot in the head. The period of time between
leaving the apartment and the shooting was no longer than thirty minutes. Although the
acts just described appear to be ordinary, noncriminal activities, when viewed in the
context of the surrounding circumstances, they amount to more than “mere suspicion”
that evidence of the crime was located in the CSLI. See Haidle, 2012-NMSC-033, ¶ 30
(“Mere suspicion about ordinary, non-criminal activities, regardless of an officer’s
qualifications and experience, does not satisfy probable cause.” (internal quotation
marks and citation omitted)).

{20} We conclude that the totality of the circumstances described in the Affidavit
establishes reasonable grounds for the judge issuing the search warrant to find
probable cause that the unknown person talking to Victim was in the vicinity of the
parking lot when the conversations took place before Victim was shot. The CSLI
included evidence of that person’s location during the relevant time frame. Therefore,
while this is a close case, we affirm the issuing judge’s finding of probable cause as to
the CSLI. Under our deferential standard of review, whether we would have viewed the
Affidavit differently makes no difference. Gurule, 2013-NMSC-025, ¶ 17. The issue
before us is whether the Affidavit provided “a substantial basis to support a finding of
probable cause” by the judge issuing the search warrant. Id. ¶ 16 (internal quotation
marks and citation omitted). We conclude that it did.

{21} We assume, but do not decide, that probable cause was required to obtain both
subscriber information for Defendant as the owner of the cell phone and call/text
records listing calls and texts made from Defendant’s cell phone. But see United States
v. Clenney, 631 F.3d 658, 666 (4th Cir. 2011) (concluding that obtaining basic
subscriber information, such as the name and address of the customer and cell phone
call logs, does not require a search warrant); United States v. Streett, 363 F. Supp.3d
1212, 1308-09 (D.N.M. 2018) (concluding that Carpenter does not apply to “subscriber
information,” which provides no insight into the subscriber’s movements and “fits neatly
under existing Supreme Court and Tenth Circuit precedent under the third-party
doctrine” that a person has no expectation of privacy concerning information the person
has voluntarily given to a third party).

{22} We further conclude that the nexus between the crime and Defendant’s cell
phone subscriber information and call/text records is clearly set forth in the Affidavit. A
fair inference is that the owner of a cell phone is usually the person using it. Under our
deferential standard of review, the Affidavit establishes probable cause to identify the
owner, therefore identifying who called Victim shortly before he was shot. Likewise, the
Affidavit establishes probable cause to believe that records showing other calls or text
messages between Defendant’s phone and Victim’s phone contained evidence of the
crime. We therefore conclude that the Affidavit provided probable cause for the judge
issuing the search warrant to believe that records revealing the identity of the owner and
logging Defendant’s other conversations or text messages with Victim (excluding
content) contained evidence of the crime.

{23} For the foregoing reasons we hold that the district court correctly concluded that
the Affidavit as a whole, together with reasonable inferences to be drawn therefrom,
provided the issuing judge with a substantial basis for determining that there was
probable cause to believe that Defendant’s subscriber information contained evidence
of a crime. We hold that the district court erred in ruling that there was no probable
cause to obtain Defendant’s CSLI and call/text records.

III. CONCLUSION

{24} We affirm in part and reverse in part the order of the district court partially
granting Defendant’s motion to suppress the cell phone records. We remand the case to
the district court for further proceedings in accordance with this opinion.

{25} IT IS SO ORDERED.

MICHAEL E. VIGIL, Chief Justice
WE CONCUR:

BARBARA J. VIGIL, Justice

JUDITH K. NAKAMURA, Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice