N.M. R. Crim. P. Dist. Ct. 5-211
N.M. R. Crim. P. Dist. Ct. 5-211
Committee commentary. - This rule is patterned after Rule 41 of the Federal Rules of Criminal Procedure.
For other court rules governing issuance, etc., of search warrants by the magistrate, metropolitan, or municipal court, see Rules 6-208, 7-208, and 8-207 NMRA. These rules are substantially identical and are based on the New Mexico constitutional requirements. See N.M. Const., Art. 2, § 10. The court rules replaced the former search warrant statute, repealed in 1972. See N.M. Laws 1967, ch. 245, §§ 1 and 2, formerly compiled as 41-18-1 and 41-18-2, 1953 Comp.
"Property" in Paragraph A of this rule is defined in Rule 41(h) of the Federal Rules of Criminal Procedure "to include documents, books, papers and any other tangible objects." The committee is of the opinion that this would include such things as blood, fingerprints, and handwriting samples. See Sanchez v. Attorney General, 1979-NMCA-081, 93 N.M. 210, 598 P.2d 1170.
As amended in 1979, this rule provides a procedure for the obtaining of a search warrant to conduct a search of premises for a person even when a warrant is not required. As stated in the advisory committee note to Rule 41 of the Federal Rules of Criminal Procedure:
That part of the amendment which authorizes issuance of a search warrant to search for a person unlawfully restrained is consistent with ALI Model Code of Pre-Arraignment Procedure § SS 210.3(1)(d) (Proposed Official Draft, 1975), which specifies that a search warrant may issue to search for 'an individual * * * who is unlawfully held in confinement or other restraint.' As noted in the Commentary thereto, id. at p. 507: "Ordinarily such persons will be held against their will and in that case the persons are, of course, not subject to 'seizure.' But they are, in a sense, 'evidence' of crime, and the use of search warrants for these purposes presents no conceptual difficulties."
In United States v. Watson, 423 U.S. 411, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976), the Court alluded to "the still unsettled question" of whether, absent exigent circumstances, officers acting without a warrant may enter private premises to make an arrest. Some courts have indicated that probable cause alone ordinarily is sufficient to support an arrest entry, United States v. Fernandez, 480 F.2d 726 (2d Cir. 1973); United States ex rel. Wright v. Woods, 432 F.2d 1143 (7th Cir. 1970). There exists some authority, however, that except under exigent circumstances a warrant is required to enter the defendant's own premises, United States v. Calhoun, 542 F.2d 1094 (9th Cir. 1976); United States v. Lindsay, 506 F.2d 166 (D.C. Cir. 1974 ); Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970 ), or, at least to enter the premises of a third party, Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir. 1974); Fisher v. Volz, 486 F.2d 333 (3d Cir. 1974); Huotari v. Vanderport, 380 F. Supp. 645 (D. Minn. 1974).
A warrant must be served between the hours of 6:00 a.m. and 10:00 p.m. unless for reasonable cause shown the issuing judge authorizes the execution at any time. The time periods designated were taken from the definition of "day time" in Rule 41(h) of the Federal Rules of Criminal Procedure.
Paragraph C requires the officer seizing property under the warrant to leave a copy of the affidavit for search warrant, the search warrant, and the inventory at the place from which the property was taken. In State v. Malloy, 2001-NMCA-067, 131 N.M. 222, 34 P.3d 611, the State moved to seal affidavits for search warrants in a sexual exploitation of children investigation. The district court ordered the narrative portions of the affidavits be partially and temporarily sealed in order to protect the ongoing investigation and the identity of the alleged victims. Id. ¶ 2. Upon execution, law enforcement delivered copies of the search warrants with the sealed portions redacted to the defendant. Id. ¶¶ 3-4. The Court of Appeals held that "the requirement of delivery of the affidavit for search warrant is ministerial and, without a showing of prejudice to the defendant, suppression is not warranted." Id. ¶ 1.
Paragraph E of this rule was derived in part from Rule 41(c) of the Federal Rules of Procedure. On the use of hearsay evidence to establish probable cause, see State v. Perea, 1973-NMCA-123, 85 N.M. 505, 513 P.2d 1287. See also, 48 F.R.D. 553, 630 (1970).
Uncorroborated information given by an unknown informant to support an affidavit for probable cause may be found to be reliable if the information is personal to the informant and other information given by the informant has been corroborated by information supplied by a reliable confidential informant. State v. Turkal, 1979-NMSC-071, 93 N.M. 248, 599 P.2d 1045.
The tests for evaluating the supporting affidavit for probable cause were set forth in Perea, 1973-NMCA-123, ¶¶ 5-8: (1) technical requirements of elaborate specificity are not required; (2) any inferences to be drawn from statements of the affiant must be drawn by the judge and not the police officer; (3) affidavits are tested by less rigorous standards than those governing the admissibility of evidence at trial; and (4) where affiant is relying on an informant, the affidavit must set forth some of the underlying circumstances supporting the affiant's conclusion that the information is credible or reliable. Only a probability of criminal conduct need be established and common sense should control the magistrate's determination of probable cause, which should be shown great deference by the reviewing court. State v. Bowers, 1974-NMCA-135, 87 N.M. 74, 529 P.2d 300. See also State v. Alderete, 1975-NMCA-058, 88 N.M. 14, 536 P.2d 278.
As in the federal rule, any additional evidence received by the court when the affiant appears personally must be made a part of the facts showing probable cause. In addition, under this rule, the additional evidence must be reduced to writing and sworn to in order to comply with the constitutional requirement of a "written showing of probable cause."
For cases showing examples of the sufficiency of descriptions in warrants, see State v. Ferrari, 1969-NMSC-146, 80 N.M. 714, 460 P.2d 244 (instrumentalities of the crime in a murder case); State v. Sero, 1970-NMCA-102, 82 N.M. 17, 474 P.2d 503 (sufficiency of the description of the place to be searched); State v. Quintana, 1975-NMCA-034, 87 N.M. 414, 534 P.2d 1126, cert. denied, 88 N.M. 29, 536 P.2d 1084, cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975) (sufficiency of description of controlled substances).
Absent a showing of prejudice, defects in the return of service will not invalidate the warrant. See State v. Wise, 1977-NMCA-074, 90 N.M. 659, 567 P.2d 970, cert. denied, 91 N.M. 4, 569 P.2d 414 (1977); State v. Baca, 1974-NMCA-098, 87 N.M. 12, 528 P.2d 656, cert. denied, 87 N.M. 5, 528 P.2d 649 (1974).
In 2012, Paragraphs F and G were added to permit multiple methods for requesting and issuing warrants. Beyond the traditional in-person submission of a written affidavit and proposed warrant, Paragraph F permits requesting a search warrant through oral testimony in the presence of the judge or by submission of the affidavit and proposed search warrant in person, over the telephone, by fax, by email, or by other electronic means. A judge is not required to accept requests for warrants by alternative methods, but, if the judge decides to do so, the judge must ensure that any oath or affirmation administered by remote means is done in a way that allows the judge to confirm the identity of the affiant. For example, the oath or affirmation may be accomplished by audio-visual means that allows the judge to see the person to whom the oath or affirmation is administered. Or the oath or affirmation may be accomplished by telephone or other audio method if done in a way that allows the judge to confirm identity, such as by having the call made through a known law enforcement telephone number with a verifiable badge number given by the officer requesting the warrant. See, e.g., Rule 11-901(A) NMRA. If the judge accepts a request for warrant by remote means, the judge must ensure that the sworn statement of facts offered in support of the warrant is reduced to writing to be served along with the warrant. And if the judge issues the warrant by remote means, the judge must file a duplicate original warrant with the court and the affiant may request that the warrant and affidavit be sealed upon an adequate showing under Rule 5-123 NMRA. Paragraph B was amended to require that the warrant include the date and time of its issuance. All duplicate originals shall reflect the date and time as indicated by the judge. Any signatures required under this rule by the judge or affiant may be by original signature, a copy of an original signature, a computer generated signature, or any other signature otherwise authorized by law. See, e.g., NMSA 1978, Sections 14-15-1 to -6 (Electronic Authentication of Documents Act); Rule 5-103.2(D) NMRA (recognizing possibility for future electronic filing of documents in criminal cases).
[As amended by Supreme Court Order No. 12-8300-016, effective for all cases pending or filed on or after June 29, 2012; as amended by Supreme Court Order No. 17-8300-016, effective for all cases pending or filed on or after December 31, 2017.]
ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-016, effective for all cases pending or filed on or after December 31, 2017, provided that a request for a search warrant should be made in writing whenever possible, made certain technical revisions to the rule, and revised the Committee commentary; in Paragraph C, after "affidavit for search warrant", deleted "and" and added "a copy of"; in Paragraph D, after "property was taken, if", deleted "they are" and added "the person is"; in Paragraph E, after "shall be based", deleted "upon" and added "on"; in Paragraph F, in the introductory clause, after "following methods", added "provided that the request should be made in writing whenever possible"; and in Subparagraph G(1), after "provided that", deleted "such" and added "any". The 2012 amendment, approved by Supreme Court Order No. 12-8300-016, effective for all cases pending or filed on or after June 29, 2012, in Paragraph B, directed that the warrant shall state the date and time it was issued by the judge; in Paragraph D, at the beginning of the first sentence added "of the warrant, or any duplicate original"; added new Paragraphs F and G; and added the last paragraph of the committee commentary.
For requirement of probable cause in search and seizure cases, see N.M. Const., art. II, § 10. For issuances of summonses or warrants, see 31-1-4 NMSA 1978. For affidavit for search warrant form, see Rule 9-213 NMRA. For forms on search warrant and return and inventory, see Rule 9-214 NMRA. For application for inspectorial search order, see Rule 9-801 NMRA. For forms on inspection order and return, see Rule 9-802 NMRA. For inapplicability of Rules of Evidence to proceedings for issuance of arrest warrants and criminal summonses, see Rule 11-1101 NMRA. I. GENERAL CONSIDERATION. Showing of probable cause is not limited to written statements. - A "showing" of probable cause required under Article II, Section 10 of the New Mexico Constitution is not limited to a writing that the issuing judge sees rather than hears or ascertains by other means. Rather, the plain meaning of "showing" as used in Article II, Section 10 is a presentation or statement of facts or evidence that may be accomplished through visual, audible, or other sensory means. State v. Boyse, 2013-NMSC-024, rev'g 2011-NMCA-113, 150 N.M. 712, 265 P.3d 1285. A search warrant may be obtained by telephone. - Where a police officer, who was investigating cruelty to animals, prepared a detailed, type-written affidavit as part of an application for a search warrant of defendant's property; the officer contacted the on-call magistrate judge by telephone; over the telephone, the judge administered an oath to the officer who then read the written affidavit to the judge; the judge approved the search warrant over the telephone; and the officer noted the judge's approval on the search warrant form and executed the search warrant, the search warrant was valid because Article II, Section 10 of the New Mexico Constitution allows for requesting and approving search warrants by telephone. State v. Boyse, 2013-NMSC-024, rev'g 2011-NMCA-113, 150 N.M. 712, 265 P.3d 1285. Requirements of search warrant statutes are mandatory in every material respect. State v. Dalrymple, 1969-NMCA-072, 80 N.M. 492, 458 P.2d 96 (decided under former law). Search and seizure is constitutionally lawful under either of three instances: if conducted pursuant to a legal search warrant, by consent or incident to a lawful arrest. State v. Sedillo, 1968-NMCA-035, 79 N.M. 289, 442 P.2d 601 (decided under former law). Good faith exception to exclusionary rule. - There is no good faith exception to the exclusionary rule under N.M. Const., art. II, § 10. State v. Gutierrez, 1991-NMCA-059, 112 N.M. 774, 819 P.2d 1332, aff'd, 1993-NMSC-062, 116 N.M. 431, 863 P.2d 1052. Fact defendant was not present when the search occurred does not make the search unreasonable. State v. Everitt, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927 (decided under former law). Where a search warrant authorizes the seizure of certain items, but the warrant gives the police officers no authority to seize other items, such authority does not extend beyond that conferred by the warrant. State v. Turkal, 1979-NMSC-071, 93 N.M. 248, 599 P.2d 1045. There is no provision under the New Mexico statutes for the securing of a telephone warrant. United States v. Chavez, 812 F.2d 1295 (10th Cir. 1987). Attorney general's agents not precluded from seeking warrants. - Nothing in this rule precludes agents of the attorney general's office to seek out search warrants, so long as law enforcement officers actually execute the warrant. State v. Elam, 1989-NMCA-006, 108 N.M. 268, 771 P.2d 597, cert. denied, 493 U.S. 832, 110 S. Ct. 105, 107 L. Ed. 2d 68 (1989). Search without warrant. - Absent a search warrant or valid consent to enter, intrusion into a private residence by law officers must be supported by a showing that the entry was justified by exigent circumstances: Whether exigent circumstances exist is within the fact finding function of the trial court and must be proofed by the state by a preponderance of the evidence. State v. Burdex, 1983-NMCA-087, 100 N.M. 197, 668 P.2d 313. Warrant requirement not applicable to contraband discovered during inventory search. - If, during an inventory search, evidence of a crime is discovered, a search warrant should normally be obtained prior to seizing the evidence, but where the evidence is contraband the case is removed from the warrant requirement which might normally otherwise apply. State v. Foreman, 1982-NMCA-001, 97 N.M. 583, 642 P.2d 186. Law reviews. - For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). For note, "Search and Seizure - Search Warrants - Probable Cause - Reliability of Confidential and Anonymous Informants - State v. Brown," see 12 N.M.L. Rev. 517 (1982). For note, "Refusing to 'Turn the Other Cheek' - New Mexico Rejects Federal 'Good Faith' Exception to the Exclusionary Rule: State v. Gutierrez," see 24 N.M.L. Rev. 545 (1994). Am. Jur. 2d, A.L.R. and C.J.S. references. - 68 Am. Jur. 2d Searches and Seizures §§ 108 to 233. Preventing, obstructing or delaying service or execution of search warrant as contempt, 39 A.L.R. 1354. Illustrations of distinction, as regards search and seizure, between papers or other articles which merely furnish evidence of crime, and the actual instrumentalities of crime, 129 A.L.R. 1296. Previous illegal search for or seizure of property as affecting validity of subsequent search warrant or seizure thereunder, 143 A.L.R. 135. Authority to consent for another to search and seizure, 31 A.L.R.2d 1078. Requisites and sufficiency of affidavit upon which search warrant is issued as regards the time when information as to offense was received by officer or his informant, 100 A.L.R.2d 525. Admissibility of evidence discovered in search of adult defendant's property or residence authorized by defendant's minor child - state cases, 99 A.L.R.3d 598. Admissibility of evidence discovered in search of defendant's property or residence authorized by domestic employee or servant, 99 A.L.R.3d 1232. Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's spouse (resident or nonresident) - state cases, 1 A.L.R.4th 673. Odor of narcotics and providing probable cause for warrantless search, 5 A.L.R.4th 681. Use of electronic sensing device to detect shoplifting as unconstitutional search and seizure, 10 A.L.R.4th 376. Adequacy of defense counsel's representation of criminal client regarding search and seizure issues, 12 A.L.R.4th 318. Sufficiency of showing of reasonable belief of danger to officers or others excusing compliance with "knock and announce" requirement - state criminal cases, 17 A.L.R.4th 301. Disputation of truth of matters stated in affidavit in support of search warrant - modern cases, 24 A.L.R.4th 1266. Search and seizure: necessity that police obtain warrant before taking possession of, examining or testing evidence discovered in search by private person, 47 A.L.R.4th 501. Seizure of books, documents, or other papers under search warrant not describing such items, 54 A.L.R.4th 391. Lawfulness of search of person or personal effects under medical emergency exception to warrant requirement, 11 A.L.R.5th 52. State constitutional requirements as to exclusion of evidence unlawfully seized - post-Leon cases, 19 A.L.R.5th 470. Propriety of execution of search warrant at nighttime, 41 A.L.R.5th 171. Sufficiency of description in warrant of person to be searched, 43 A.L.R.5th 1. Propriety of search of nonoccupant visitor's belongings pursuant to warrant issued for another's premises, 51 A.L.R.5th 375. Admissibility of evidence discovered in search of adult defendant's property or residence authorized by defendant's minor child-state cases, 51 A.L.R.5th 425. What constitutes compliance with knock-and-announce rule in search of private premises - state cases, 85 A.L.R.5th 1. Sufficiency of description of business records under fourth amendment requirement of particularity in federal warrant authorizing search and seizure, 53 A.L.R. Fed. 679. Admissibility of evidence obtained during nighttime search by federal officers where warrant does not contain "appropriate provision" authorizing execution at times other than daytime as required by Rule 41(c) of Federal Rules of Criminal Procedure, 41 A.L.R.5th 171. When are facts offered in support of search warrant for evidence of sale or possession of cocaine so untimely as to be stale - state cases, 109 A.L.R.5th 99. When are facts offered in support of search warrant for evidence of sexual offense so untimely as to be stale - state cases, 111 A.L.R.5th 239. When are fact, relating to marijuana, provided by one other than police or other law enforcement officer, so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of a controlled substance - state cases, 112 A.L.R.5th 429. 79 C.J.S. Searches and Seizures § 36 et seq. II. ISSUANCE. Facsimile applications for warrants. - Where a judge received applications for warrants by facsimile and returned the signed warrants by facsimile, the warrants were valid because Rule 5-211 NMRA does not mandate the physical presence of the affiant as a condition for the issuance of a warrant. State v. Balenquah, 2009-NMCA-055, 146 N.M. 267, 208 P.3d 912, cert. denied. Where warrant issued by Zuni tribal court. - Because there is nothing in either the Zuni constitution or the Zuni tribal law and order code which authorizes the Zuni tribal court to issue a search warrant, the evidence seized from a house on the Zuni reservation pursuant to such a warrant is inadmissible at trial in a New Mexico court, and the motion to suppress the evidence obtained during the search should have been granted. State v. Railey, 1975-NMCA-019, 87 N.M. 275, 532 P.2d 204. Search warrant sufficiency standards. - The standards for the sufficiency of search warrants are: (1) only a probability of criminal conduct need be shown; (2) there need be less vigorous proof than the rules of evidence require to determine guilt of an offense; (3) common sense should control; (4) great deference should be shown by courts to a magistrate's determination of probable cause. State v. Bowers, 1974-NMCA-135, 87 N.M. 74, 529 P.2d 300. A fundamental principle of search and seizure law is that, before a neutral and detached judge can issue a search warrant, two conclusions must be supported by substantial evidence: (1) the items sought to be seized are evidence of a crime; and (2) the criminal evidence will be located at the place to be searched. State v. Baca, 1982-NMSC-016, 97 N.M. 379, 640 P.2d 485. When reviewing affidavits in support of search warrants, a magistrate and an appellate court must consider the affidavit as a whole. All direct and circumstantial evidence alleged, as well as all reasonable inferences to be drawn from those allegations should be considered. State v. Snedeker, 1982-NMSC-085, 99 N.M. 286, 657 P.2d 613. Judicial alteration acceptable. - Although after reading the officer's supporting affidavit the judge altered the warrant and that portion of the affidavit listing the items to be searched and seized, these changes did not merit exclusion of the evidence seized by the warrant since defendant failed to introduce evidence showing that the judge relied on unrecorded or unsworn statements in making the probable cause determination. United States v. Ramirez, 63 F.3d 937 (10th Cir. 1995). Affidavit held insufficient. - Affidavit did not establish a substantial basis for believing an informant's report was based on reliable information, where, although the informant reportedly stated that defendant had brought heroin into town and was selling it at the house in question, the affidavit was devoid of any indication of how the informant gathered this information. State v. Cordova, 1989-NMSC-083, 109 N.M. 211, 784 P.2d 30. Citizen-informer rule. - In order to apply the citizen-informer rule, the affidavit must affirmatively set forth circumstances which would allow a neutral magistrate to determine the informant's status as a citizen-informer. State v. Hernandez, 1990-NMCA-127, 111 N.M. 226, 804 P.2d 417. Where warrant based upon informant insufficient. - Search warrant merely stating conclusions alleging distribution, possession and parcelling do not meet the test of providing a factual basis for the information furnished or the underlying circumstances from which the informant concluded that the controlled substances were where he claimed they were. Hudson v. State, 1976-NMSC-084, 89 N.M. 759, 557 P.2d 1108, cert. denied, 431 U.S. 924, 97 S. Ct. 2198, 53 L. Ed. 2d 238 (1977). Handwriting exemplars may be compelled if the requirements for a search warrant are met. Sanchez v. Attorney Gen., 1979-NMCA-081, 93 N.M. 210, 598 P.2d 1170. District court lacks authority to compel handwriting exemplars from a person who has not been charged with a crime, has not been arrested and has not been directed to appear before an investigative agency pursuant to statutory authority. Sanchez v. Attorney Gen., 1979-NMCA-081, 93 N.M. 210, 598 P.2d 1170. Nighttime search. - A search warrant authorizing a nighttime search may be issued without positive proof that the property to be seized is on the person or in the place to be searched or a showing in the affidavit of reasonable cause for conducting the search at nighttime. State v. Hausler, 1984-NMSC-036, 101 N.M. 143, 679 P.2d 811. Delay in issuance. - Despite the six week delay between the incident and the issuance of a search warrant, there was sufficient information that defendant would keep the gun at his home for future use to support the search warrant; thus, the district court's denial of the motion to suppress was upheld. State v. Gonzales, 2003-NMCA-008, 133 N.M. 158, 61 P.3d 867, cert. quashed, 134 N.M. 374, 77 P.3d 278. III. CONTENTS. Nighttime search. - Nothing in New Mexico jurisprudence precludes, in all cases, the after-the-fact testimony of a magistrate judge to support the reasonableness of a nighttime search by showing that the judge actually performed the required scrutiny and evaluation and authorized a nighttime search although the warrant itself failed to expressly show the authorization. State v. Katrina G., 2008-NMCA-069, 144 N.M. 205, 185 P.3d 376. When law enforcement officers lawfully enter and secure the premises during the day, including continuous surveillance to ensure its vacancy, and lawfully obtain a warrant to continue their search of the premises, all before 10:00 p.m., special permission for a nighttime search is not necessary under Rule 5-211(B) NMRA. State v. Santiago, 2010-NMSC-018, 148 N.M. 144, 231 P.3d 600. Where police officers, who suspected defendant of murder, entered defendant's home in the afternoon, performed a protective sweep, displaced defendant's family from the home, and kept the premises under constant surveillance to ensure that it would be unoccupied when a search warrant was served; defendant was in a hospital during the search; the district judge issued a warrant at 8:54 p.m. on the same day; the officers did not request and the district judge did not issue a warrant that could be executed after 10:00 p.m.; the officers reentered defendant's home after 10:00 p.m. that evening and seized evidence; and defendant's home was unoccupied during the search, the search based on the warrant did not violate Rule 5-211(B) NMRA because the search was a continuation of the initial search that began in the afternoon. State v. Santiago, 2010-NMSC-018, 148 N.M. 144, 231 P.3d 600. Sufficiency of description of place. - A description in a search warrant is sufficient if the officer can, with reasonable effort, ascertain and identify the place intended to be searched; the description, however, must be such that the officer is enabled to locate the place to be searched with certainty. It should identify the premises in such manner as to leave the officer no doubt and no discretion as to the premises to be searched. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled on other grounds by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183. Where heroin seized during a search pursuant to a warrant was physically located on property upon which there was an unoccupied house, and not within the curtilage as specified in the warrant, it was held that although the warrant did not authorize a search outside the curtilage, the can containing the heroin was viewed from a place the officer had a right to be under the warrant, and, consequently, it was not discovered as a result of an illegal search. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled on other grounds by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183. Despite the fact that the warrant contained two errors, in that the color of the residence was wrong, and the street number of the residence was wrong, where the warrant properly described the roof of the residence, located the house with specificity and stated that the residence was the only one in the immediate area which had a chicken coop containing pigeons (plainly visible from the road), it was held that the requirements of a sufficient description were met. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled on other grounds by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183. Sufficiency of description of items. - Where a search warrant specified the seizure of "controlled substances" kept contrary to law, the items to be searched for and seized were as precisely identified as the situation permitted considering the wide variety of drugs used by addicts. The words used in the warrant have a definite meaning in that they refer to certain and definite lists of drugs and their derivatives. Nothing was left to the discretion of the officers. Heroin is one of the drugs listed, and it was heroin that was seized. State v. Quintana, 1975-NMCA-034, 87 N.M. 414, 534 P.2d 1126, cert. denied, 88 N.M. 29, 536 P.2d 1085, cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975). Effect of particularity requirement. - The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. State v. Paul, 1969-NMCA-074, 80 N.M. 521, 458 P.2d 596, cert. denied, 80 N.M. 746, 461 P.2d 228, 397 U.S. 1044, 90 S. Ct. 1354, 25 L. Ed. 2d 654 (1970) (decided under former law). Return of property not described. - A person aggrieved by an unlawful search and seizure may move for the return of the property and to suppress for the use of evidence anything so obtained on the ground that the property seized is not that described in the warrant. State v. Paul, 1969-NMCA-074, 80 N.M. 521, 458 P.2d 596, cert. denied, 80 N.M. 746, 461 P.2d 228, 397 U.S. 1044, 90 S. Ct. 1354, 25 L. Ed. 2d 654 (1970) (decided under former law). Contents of affidavit. - Where the search warrant affidavits issued to defendant contained redacted information the evidence seized was not to be suppressed, because the requirement, under Paragraph C was ministerial and did not arise out of U.S. Const. amend. IV. Additionally, defendant was not prejudiced as a result, and the State did not act in bad faith in obtaining and executing the search warrant. State v. Malloy, 2001-NMCA-067, 131 N.M. 222, 34 P.3d 611, cert denied, 130 N.M. 722, 31 P.3d 380. Falsehoods and omissions in search warrant affidavit. - To suppress evidence based on alleged falsehoods and omissions in a search warrant affidavit, the defendant must show either deliberate falsehood or a reckless disregard for the truth as to a material fact; a merely material misrepresentation or omission is insufficient. State v. Garnenez, 2015-NMCA-022, cert. denied, 2015-NMCERT-001. Where the affidavit to support a search warrant contained a false statement that defendant was under arrest, and where the officer testified that he used a standard form affidavit and did not remove the stock language that the defendant was under arrest, and that he did not intend to mislead the issuing judge by the mistaken inclusion of this language, the district court, being in the best position to resolve questions of fact and to evaluate the credibility of witnesses, did not err in upholding the search warrant following a finding that the misstatement was not deliberate or reckless. State v. Garnenez, 2015-NMCA-022, cert. denied, 2015-NMCERT-001. IV. EXECUTION. Generally, as to forcible entry. - The general standard for executing a search is that prior to forcible entry, an officer must give notice of authority and purpose and be denied admittance, but noncompliance with the standard may be justified by exigent circumstances known to the officer beforehand, as for example when the officer, in good faith, believes that a person is attempting to destroy evidence. State v. Anaya, 1976-NMCA-055, 89 N.M. 302, 551 P.2d 992. Officer executing search warrant may enter by force. - An officer armed with a search warrant that authorizes the search of a house is well within his rights to enter by force if no one is present in the house of whom he may demand entrance. State v. Gutierrez, 1978-NMCA-026, 91 N.M. 542, 577 P.2d 440. "No knock" search warrant. - There is nothing in this rule suggesting that a magistrate or judge may predetermine the existence of exigent circumstances and authorize execution of a warrant without knocking. The prevailing view appears to be that such warrants are invalid absent statutory authorization. State v. Gutierrez, 1991-NMCA-059, 112 N.M. 774, 819 P.2d 1332, aff'd, 1993-NMSC-062, 116 N.M. 431, 863 P.2d 1052. Owner or occupant need not be present. - At the time of execution of a warrant, the fourth amendment does not require the presence of the person from whose premises the property is taken. State v. Gutierrez, 1978-NMCA-026, 91 N.M. 542, 577 P.2d 440. Exigent circumstance exists if, prior to entry, officers in good faith believe that the contraband, or other evidence, for which search is to be made is about to be destroyed, and the question of exigent circumstances is one of fact. State v. Anaya, 1976-NMCA-055, 89 N.M. 302, 551 P.2d 992. Constitutionality of preparations prior to execution of warrant. - Entry under defendant's trailer and severing of a sewer pipe before executing a search warrant for narcotics did not amount to an unconstitutional search under the circumstances since testimony indicated that heroin is often disposed of by flushing and that upon a prior arrest, one of the defendants attempted to dispose of heroin in this fashion. State v. Anaya, 1976-NMCA-055, 89 N.M. 302, 551 P.2d 992. Subdivision (d) (see now Paragraph C) differentiates between giving and leaving a warrant: if the occupant or owner is present during the search the officer shall personally hand the receipt to him, but if the occupant or owner is absent during the search, the officer shall leave the receipt at the location of the search and seizure. State v. Gutierrez, 1978-NMCA-026, 91 N.M. 542, 577 P.2d 440. V. RETURN. Effect of defects. - Absent a showing of prejudice an appellate court will not set aside an otherwise valid search warrant because of defects in the return of the warrant. Those matters of procedure relating to the return of a search warrant have consistently been held to be ministerial acts which, even if defective or erroneous, do not require a search warrant to be held invalid unless prejudice is shown; therefore, absent a showing of prejudice, that specific officers were not named as authorized to execute the warrant or that no copy of an inventory was delivered by the court to the defendant will not invalidate the warrant. State v. Perea, 1973-NMCA-123, 85 N.M. 505, 513 P.2d 1287; State v. Montoya, 1974-NMCA-017, 86 N.M. 119, 520 P.2d 275. Absent a showing of prejudice, the appellate court will not set aside an otherwise valid search warrant because of defects in the return. Where the defendant did not allege nor did the record indicate that he was prejudiced in any way by a return with contradictory recitations that property had and had not been found was not error for the trial court to admit the evidence seized pursuant to this warrant. State v. Baca, 1974-NMCA-098, 87 N.M. 12, 528 P.2d 656, cert. denied, 87 N.M. 5, 528 P.2d 649. VI. PROBABLE CAUSE. De novo review by appellate court. - An issuing court's determination of probable cause to issue a search warrant should not be reviewed de novo, but, rather, must be upheld if the affidavit provides a substantial basis to support a finding of probable cause. State v. Williamson, 2009-NMSC-039, 146 N.M. 488, 212 P.3d 376, rev'g 2008-NMCA-096, 144 N.M. 522, 188 P.3d 1273. Probable cause found. - Where an affidavit for a search warrant alleged that the defendant brought a package into a UPS Store; the defendant appeared to be nervous; the defendant did not know what was inside the package; when the store manager told the defendant that the package would have to be opened to ascertain its contents, the defendant stated that the package contained a book; although the defendant had mailed packages before, this was the first time the defendant appeared nervous and did not know what was in the package; after the defendant left, the store manager opened the package and discovered a clear plastic bag, which appeared to be vacuum sealed, containing a Crystal Light cylinder and a Ferrero candy box, both wrapped in duct tape; a narcotics detection dog sniffed the package but failed to indicate a positive response to narcotics; and a law enforcement officer with eleven years of law enforcement experience who was assigned to the narcotics task force division of the police department averred that often times narcotics are packaged in unusual containers, wrapped in duct tape and vacuum sealed to make the narcotics less detectable by narcotic detection dogs, the facts alleged in the affidavit were sufficient to explain the narcotic detection dog's failure to alert to the presence of narcotics and to support a reasonable inference that the package contained narcotics. State v. Williamson, 2009-NMSC-039, 146 N.M. 488, 212 P.3d 376, rev'g 2008-NMCA-096, 144 N.M. 522, 188 P.3d 1273. Generally. - Under Subdivision (f) (see now Paragraph E) the issue is whether there is a substantial basis for determining credibility and for determining that a factual basis exists. These tests are to be applied regardless of whether the affidavit identifies double hearsay, and the presence of double hearsay, in itself, does not render the affidavit legally insufficient as a magistrate is to evaluate this information as well as all other information in the affidavit in order to determine whether it can be reasonably inferred that the informant had gained his information in a reliable way. The magistrate must canvass the affidavit and the informer's tip as a whole to assess its probative value. State v. Perea, 1973-NMCA-123, 85 N.M. 505, 513 P.2d 1287. Substance of all definitions of probable cause is a reasonable ground for belief of guilt. State v. Hilliard, 1970-NMCA-039, 81 N.M. 407, 467 P.2d 733 (decided under former law). Probable cause determination to be made by judge, not police officer. - It is for a neutral and detached judge to determine from the affidavit whether probable cause exists. A police officer is not vested with that authority. State v. Baca, 1982-NMSC-016, 97 N.M. 379, 640 P.2d 485. Probable cause cannot be established or justified by what is revealed by the search. State v. Baca, 1982-NMSC-016, 97 N.M. 379, 640 P.2d 485. The warrant is not rendered invalid by the inclusion in the affidavit of some information that is not supported by probable cause. The warrant may nevertheless stand if the remaining allegations demonstrate probable cause. State v. Snedeker, 1982-NMSC-085, 99 N.M. 286, 657 P.2d 613. Mere suspicion or expectation that item may prove incriminating to a defendant is not sufficient justification for the seizure of the item. State v. Turkal, 1979-NMSC-071, 93 N.M. 248, 599 P.2d 1045. Use of hearsay. - Affidavits will be tested by much less rigorous standards than those governing admissibility of evidence at trial. Probable cause may be determined on the basis of evidence which at trial would not be legally competent. Thus, hearsay information, even from an undisclosed informant may form the basis for a probable cause determination so long as there is some reason for believing such information. State v. Perea, 1973-NMCA-123, 85 N.M. 505, 513 P.2d 1287. Probable cause must be based on substantial evidence. The evidence used may be hearsay, provided: (1) there is a substantial basis for believing the source of the hearsay to be credible, and (2) there is a substantial basis for believing that there is a factual basis for the information furnished. State v. Snedeker, 1982-NMSC-085, 99 N.M. 286, 657 P.2d 613. Where the only allegations of criminality in an affidavit for a search warrant were hearsay from persons who were not law-enforcement officers, the affidavit did not establish probable cause because it did not establish either (1) that the informants were truthful persons, (2) that the informants had particular motives to be truthful about their specific allegations, or (3) that the allegations of criminality had been sufficiently corroborated. State v. Therrien, 1990-NMCA-060, 110 N.M. 261, 794 P.2d 735, overruled in part on other grounds by State v. Barker, 1992-NMCA-117, 114 N.M. 589, 844 P.2d 839. Affidavit failed to establish the veracity and reliability of informants. - Where the victim, whose decomposed body was found in a remote area, was killed by violent blunt-force trauma to the head; the victim was a local transient and drug user who had a history of stealing from those who invited the victim into their homes; the search warrant affidavit that the police submitted to obtain a warrant to search defendant's property stated that the police had received tips from a confidential source and two concerned citizens that defendant had admitted to at least one person that defendant killed the victim for stealing and that defendant admitted to the killing prior to the discovery of the victim's body; the affidavit did not allege that the sources heard defendant's admission directly and did not indicate why the sources believed defendant's admission; the affidavit did not indicate that any of the sources had provided reliable information to police in the past or made the statements against their interest; the affidavit did not provide information to discount the possibility that the sources might have been involved in the killing or had a reason to fabricate the story; and the sources provided only the independently corroborated fact that the victim stole from defendant, the affidavit did not establish probable cause because it failed to provide any basis upon which the veracity of the sources or the reliability of their information could be determined. State v. Haidle, 2012-NMSC-033, 285 P.3d 668. Non-hearsay allegations in affidavit failed to establish probable cause. - Where the victim, whose decomposed body was found in a remote area, was killed by violent blunt-force trauma to the head; the victim was a local transient and drug user who had a history of stealing from those who invited the victim into their homes; the search warrant affidavit that the police submitted to obtain a warrant to search defendant's property stated that defendant admitted that defendant had sex with the victim, that the victim's blood would be found in defendant's bathroom, that the victim stole from defendant, and that defendant owned a baseball bat for protection; and the affidavit stated that defendant's home was near the place where the victim's body was discovered, the affidavit did not establish probable cause. State v. Haidle, 2012-NMSC-033, 285 P.3d 668. Personal observation of informant satisfies probable cause. - Although, under the Aguilar-Spinelli test, an affidavit based on an informant's hearsay will constitute probable cause for a search warrant only if the affidavit establishes both the credibility and the basis of knowledge of the informant, a detective's personal observations of an unwitting informant buying cocaine constituted sufficient facts and circumstance to satisfy probable cause for the issuance of the warrant. The Aguilar-Spinelli analysis applies only to hearsay. The unwitting informant, who did not realize that he or she was buying cocaine for a law enforcement officer, did not intend his or her conduct as an "assertion"; consequently, that conduct was not hearsay. State v. Lovato, 1993-NMCA-163, 117 N.M. 68, 868 P.2d 1293. An informant's first-hand knowledge of heroin trafficking as a result of his controlled purchase established the informant's "basis of knowledge" for purposes of establishing probable cause. State v. Lujan, 1998-NMCA-032, 124 N.M. 494, 953 P.2d 29, cert. denied, 124 N.M. 589, 953 P.2d 1087. Use of evidence gathered from lengthy surveillance. - Where affidavit alleged police officer had defendant's premises under surveillance for months, had seen several known narcotics users come and go, had observed fresh needle marks on some whom he stopped, and that some of those whom he stopped had admitted purchasing narcotics from the defendant, there was probable cause for issuance of a search warrant. State v. Perea, 1973-NMCA-123, 85 N.M. 505, 513 P.2d 1287. Where the affidavits presented to the magistrate indicated that the affiants personally inspected two cars rented previously by the defendants and found significant traces of marijuana, that the defendants lived together, spent large amounts of cash for purchases, had no visible means of support, rented numerous automobiles for trips and flew on airplanes during the period of surveillance, the magistrate could assure himself that the affidavits were not based on rumors or merely on the defendants' reputation; there was sufficient information for him to be satisfied that the circumstances by which the affiants came by their information demonstrated probability for the issuance of a search warrant. State v. Bowers, 1974-NMCA-135, 87 N.M. 74, 529 P.2d 300. Observations of fellow officers of the government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number. State v. Perea, 1973-NMCA-123, 85 N.M. 505, 513 P.2d 1287. Use of evidence inculpating informant. - When an informant gives information that not only provides the basis for an accusation against a third party but also indicates that the informant himself is guilty of some misconduct, this admission carries its own indicia of credibility - sufficient at least to support a finding of probable cause to search. State v. Perea, 1973-NMCA-123, 85 N.M. 505, 513 P.2d 1287. Substantiality of informant's information. - An unsupported statement by an affiant that he believed an informant to be truthful will not, in itself, provide a factual basis for believing the report of an unnamed informant. The affidavit must set forth some of the underlying circumstances supporting the affiants' conclusions and beliefs that the information is credible or that his information is reliable. State v. Perea, 1973-NMCA-123, 85 N.M. 505, 513 P.2d 1287. Information from a reliable informant constitutes probable cause for search, particularly when the information is detailed and accurate. State v. McAdams, 1972-NMCA-029, 83 N.M. 544, 494 P.2d 622 (decided under former law). In determining whether probable cause existed, it is of vital importance that a reliable confidential informant or affiant describe the criminal activity in sufficient detail so that the magistrate has something substantial to rely on and not a casual rumor circulating in the underworld. Affidavit containing nothing more than conclusionary statements without factual predicate was deficient. State v. Duran, 1977-NMCA-087, 90 N.M. 741, 568 P.2d 267. In the absence of underlying circumstances establishing the basis of an informant's conclusion, the affidavit will sufficiently establish probable cause if the informant describes the criminal activity in such detail that a judge will know the informant relies on more than a casual rumor or reputation of the defendant. State v. Baca, 1982-NMSC-016, 97 N.M. 379, 640 P.2d 485. A conclusory statement that the informant has personal knowledge negates the validity of the affidavit and the facts advanced in support of a showing of probable cause. State v. Baca, 1982-NMSC-016, 97 N.M. 379, 640 P.2d 485. The fact that an informant states that the defendant was known by the informant to be involved in narcotic transactions is but a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the judge's decision. State v. Baca, 1982-NMSC-016, 97 N.M. 379, 640 P.2d 485. Magistrate not required to make independent investigation of informant's reliability. - There is no requirement that a magistrate make an independent investigation to determine whether an informant is reliable; rather, from the verified facts presented to him, the magistrate must believe that the source is credible and that a factual basis exists for the information furnished. State v. Gutierrez, 1978-NMCA-026, 91 N.M. 542, 577 P.2d 440. Nor must past tips have resulted in conviction. - To establish a record of reliability of an informant sufficient for probable cause, it is unnecessary for the affidavit to state that the informer's past tips had resulted in a conviction. State v. Gutierrez, 1978-NMCA-026, 91 N.M. 542, 577 P.2d 440. Veracity may be established by informant's reliability and corroboration. - Where, because of knowledge personal to a juvenile informant, and by reading of an affidavit as a whole, a juvenile informant's veracity is shown by the reliability of the information which she provided, which is partly corroborated by information supplied by a confidential informant, probable cause existed for issuing a search warrant. State v. Turkal, 1979-NMSC-071, 93 N.M. 248, 599 P.2d 1045. Corroboration or verification necessary to show informant's credibility. - Information furnished by an informant for the issuance of a search warrant must be sufficiently corroborated or verified to an extent sufficient to establish the informant's credibility. State v. Donaldson, 1983-NMCA-064, 100 N.M. 111, 666 P.2d 1258. Where informant unreliable, and information not based on personal knowledge, no probable cause. - Where an informant supplies information not based on personal knowledge, and the affiant's reasons for believing the informant to be reliable do not meet the traditional test of the indicia of reliability, probable cause does not exist. State v. Brown, 1981-NMCA-039, 96 N.M. 10, 626 P.2d 1312, remanded, 1980-NMCA-131, 95 N.M. 454, 623 P.2d 574. Affidavit based on statements of undisclosed informants. - Affidavit in support of search warrant, which was based primarily upon information provided by undisclosed informants but which failed to set out sufficient facts to determine the reliability of such informants, was insufficient to establish probable cause, and thus a search predicated on such warrant violated Article II of the New Mexico Constitution and the Fourth Amendment to the United States Constitution. In re Shon Daniel K., 1998-NMCA-069, 125 N.M. 219, 959 P.2d 553, cert. denied, 125 N.M. 147, 958 P.2d 105. Reasonable inference from probable cause showing. - A showing of probable cause that a person has committed a crime will permit a reasonable inference that evidence of the crime will be found in his house. State v. Baca, 1982-NMSC-016, 97 N.M. 379, 640 P.2d 485. If stolen property is not inherently incriminating and there is probable cause to believe a suspect has committed the theft, the magistrate can assume that the property will be found at the suspect's residence. State v. Snedeker, 1982-NMSC-085, 99 N.M. 286, 657 P.2d 613. Probable cause to search defendant and automobile for controlled substances found lacking. State v. Van De Valde, 1982-NMCA-049, 97 N.M. 680, 642 P.2d 1139. Defective affidavit based on unnamed police informant. - The trial court erred in refusing to suppress evidence because of a facially defective affidavit which merely reiterated the allegations of an unnamed police informant without providing specific, corroborating details regarding drug transaction times, frequency, amounts or kinds, sufficient to subject informant himself to a reasonable fear of prosecution. State v. Barker, 1992-NMCA-117, 114 N.M. 589, 844 P.2d 839.