State v. Gurule

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 10:03:51 2013.07.19
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMSC-025

Filing Date: June 13, 2013

Docket No. 33,023

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

CHRISTOPHER GURULE and LINDA DAVIS,

Defendants-Respondents.

ORIGINAL PROCEEDING ON CERTIORARI
Charles W. Brown, District Judge

Gary K. King, Attorney General
James W. Grayson, Assistant Attorney General
Santa Fe, NM

for Petitioner

Bennett J. Baur, Acting Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM

for Respondent Christopher Gurule

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

for Respondent Linda Davis

OPINION

MAES, Chief Justice.

{1} The State raises three issues in its interlocutory appeal from the Court of Appeals’

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affirmance of the district court’s evidentiary rulings. First, the State asserts that there was
probable cause to search and seize Defendant Linda Davis and Defendant Christopher
Gurule’s (collectively, Defendants) digital camera. Second, the State asserts that because
there was probable cause to support the search and seizure of the digital camera, the Court
of Appeals erred in affirming the district court’s exclusion of testimony based on the fruit
of the poisonous tree doctrine. Finally, the State contends that the district court and the Court
of Appeals erred in concluding that the statement made by Defendant Linda Davis
(Defendant Davis) to her son, Robert Davis (Robert), was testimonial and was to be
excluded on confrontation grounds. For the reasons that follow, we reverse the Court of
Appeals and remand to the district court for an evidentiary hearing regarding the
admissibility of Defendant Davis’ statement.

I. FACTS AND PROCEDURAL HISTORY

{2} Defendant Christopher Gurule (Defendant Gurule) and Defendant Davis were
charged with criminal sexual penetration of a minor contrary to NMSA 1978, Section
30-9-11(D) (2007), criminal sexual contact of a minor contrary to NMSA 1978, Section
30-9-13(A) (2003), kidnapping contrary to NMSA 1978, Section 30-4-1 (2003), sexual
exploitation of a minor contrary to NMSA 1978, Section 30-6A-3(C) (2007), and conspiracy
contrary to NMSA 1978, Section 30-28-2 (1979). The cases against the Defendants were
joined by the district court.

{3} In early September 2007, Special Agent Lois Kinch (Agent Kinch), with the New
Mexico Attorney General’s Office’s Internet Crimes Against Children Task Force, began
an investigation into the distribution of child pornography over the ultra-peer sharing internet
site Gnutella. During Agent Kinch’s investigation, she uncovered an Internet Protocol (IP)
address associated with a New Mexico internet service provider that contained fifty-eight
files that were available for sharing over the ultra-peer sharing network. Agent Kinch
believed that, based on the file names, the files contained material that was sexually
exploitative of children. Agent Kinch examined one of the files associated with the IP
address, and confirmed that it contained child pornography. On September 6, 2007, Agent
Kinch sent a subpoena duces tecum to Comcast requesting information identifying the
subscriber of the IP address. Comcast informed Agent Kinch that the IP address belonged
to Defendant Davis, residing at 1520 University Blvd. NE, Apt. 215, Albuquerque, N.M.
87102.

{4} On September 27, 2007, Agent Kinch applied for a search warrant. Agent Kinch’s
affidavit stated that she believed the computer she identified in her initial investigation was
being used to possess or distribute child pornography and that she believed there was
probable cause to believe that “evidence of the exploitation of children by means of the
possession and attempted distribution of child pornography in violation of New Mexico
Statute [Section] 30-6A-3[(C)]” was located at 1520 University Blvd. NE, Apt. 215,
Albuquerque, N.M. 87102. The affidavit requested authorization to seize and view
“photograph[s], (including but not limited to negatives, still photos, video tapes, artists[’]

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drawings, slides, and any type of computer formatted photograph)” depicting children in a
sexually explicit manner, as well as “computer hardware equipment, (including . . . digital
cameras . . .).”

{5} Based on the information contained in Agent Kinch’s affidavit, the issuing judge
concluded that there was probable cause to support a search warrant, and incorporated the
affidavit as part of the warrant. The warrant was executed the following day. The inventory
of the items seized revealed that, among other things, the executing officers seized two
digital cameras, a Diamage 7I and a Sony Cybershot—the camera at issue in this case.

{6} The search of the Sony Cybershot camera’s internal memory revealed images of
Defendant Gurule engaging in sexual acts with C.S., Defendant Davis’ four-year-old
granddaughter. Based on these images, Defendant Gurule was charged with criminal sexual
penetration in the first degree, conspiracy to commit criminal sexual penetration of a minor,
and conspiracy to commit sexual exploitation of a child. The counts against Defendant
Gurule concerning sexual abuse are not part of the present case.

{7} Defendants filed three motions that are relevant to this appeal. In the first motion,
Defendants objected to the search and seizure of the Sony Cybershot digital camera and filed
a motion to suppress the physical evidence stemming from the illegal search and seizure.
The district court found that the warrant did not contain specific information regarding the
use of a digital camera in relation to the alleged crime and, therefore, there was no probable
cause to allow for the search and seizure of the camera. The district court ordered the digital
camera and “all evidence derived from the seizure of the camera and the search of the
camera” suppressed.

{8} Defendants’ second motion sought to exclude Candace Stevens (Stevens), the
mother of C.S., from testifying at trial asserting that the State only became aware of Stevens’
existence because of the illegal search and seizure of the digital camera. The State argued
that Stevens’ testimony should be permitted under the inevitable discovery doctrine because
Defendant Davis mentioned to Agent Kinch that Stevens’ children had been around the
apartment, and therefore Stevens’ existence would have been known regardless of the search
and/or seizure of the digital camera. The district court granted Defendants’ motion to
exclude Stevens from testifying as a witness at trial stating that “[h]er existence would not
have been known but for the illegal search . . . of the camera.”

{9} Defendant Gurule then filed a third motion to limit the testimony of the State’s
witness Robert, Defendant Davis’ son, at trial. The State intended to call Robert to testify
that Defendant Davis informed him that she witnessed Defendant Gurule watching child
pornography on their computer. The district court expressed concerns that, if admitted at
trial, such testimony may violate Defendant Gurule’s confrontation rights because Defendant
Davis would not be subject to cross-examination regarding the alleged statement. The State
asserted that the Confrontation Clause was not implicated because the statement made by
Defendant Davis to her son, Robert, was nontestimonial. The district court ruled that the

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proffered testimony presented classic Confrontation Clause and Bruton problems, and
granted Defendant Gurule’s motion to limit Robert’s testimony. The district court also
expressed concerns regarding the fact that the State had moved to join Defendants, and then
was complaining of the effect of that decision.

{10} The State filed an interlocutory appeal pursuant to NMSA 1978, Section
39-3-3(B)(2) (1972) challenging two of the district court’s orders and asserting that
Defendants lacked standing to challenge the seizure of the Sony Cybershot camera, and that
even if Defendants had standing to challenge the seizure, the district court erred in
concluding that the seizure was not supported by probable cause. The State further asserted
that the district court erred in excluding the evidence derived from the seizure of the digital
camera, namely Stevens’ testimony. Lastly, the State argued that the district court erred in
excluding the out-of-court statements made by Defendant Davis to her son Robert on the
grounds that such testimony would violate Defendant Gurule’s confrontation rights.

{11} The Court of Appeals held that Defendants had standing to challenge the seizure of
the digital camera; that the seizure of the digital camera was not supported by probable
cause; that the testimony of Stevens was tainted by the illegal seizure of the digital camera
and was properly excluded; and that the out-of-court statement made by Defendant Davis
was testimonial and therefore inadmissible. State v. Gurule, 2011-NMCA-063, ¶¶ 1, 23, 26,
29, 150 N.M. 49, 256 P.3d 992. The State filed a timely notice of appeal to this Court
pursuant to Rule 12-502 NMRA (“This rule governs petitions for the issuance of writs of
certiorari seeking review of decisions of the Court of Appeals.”).

{12} We granted certiorari to review the following issues: (1) whether seizure of the
digital camera, as permitted by the warrant, was supported by probable cause based on the
accompanying affidavit and whether search of that camera required an additional warrant;
(2) whether the district court was correct in excluding Stevens’ testimony under the fruit of
the poisonous tree doctrine; and (3) whether the Confrontation Clause applies to statements
between two family members when there is no involvement by any government official.

II. DISCUSSION

A. Agent Kinch’s Affidavit Established Probable Cause to Search the Camera

{13} “The Fourth Amendment to the United States Constitution and [A]rticle II, [S]ection
10 of the New Mexico Constitution both require probable cause to believe that a crime is
occurring or seizable evidence exists at a particular location before a search warrant may
issue.” State v. Williamson, 2009-NMSC-039, ¶ 14, 146 N.M. 488, 212 P.3d 376 (alterations
in original). Probable cause exists when “there are reasonable grounds to believe that a
crime has been committed in that place, or that evidence of a crime will be found there.”
State v. Evans, 2009-NMSC-027, ¶ 10, 146 N.M. 319, 210 P.3d 216. “[B]efore 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

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searched.” Id. ¶ 11 (internal quotation marks and citation omitted).

{14} “Probable cause must be based on substantial evidence.” State v. Haidle,
2012-NMSC-033, ¶ 11, 285 P.3d 668 (internal quotation marks and citation omitted).
Probable cause determinations, however, are not subject to bright line rules but rather are to
be based on the assessment of various probabilities in a given factual context. 2 Wayne
LaFave, et. al., Search and Seizure: A Treatise on the Fourth Amendment, § 3.2(a), at 25
(5th ed. 2012). Therefore, in order for a search warrant to be issued, “sufficient facts [must
be] presented in a sworn affidavit to enable the magistrate to make an informed, deliberate,
and independent determination that probable cause exists.” State v. Vest, 2011-NMCA-037,
¶ 7, 149 N.M. 548, 252 P.3d 272 (internal quotation marks and citation omitted). This
requires that the probable cause determination be based on “more than a suspicion or
possibility but less than a certainty of proof.” Evans, 2009-NMSC-027, ¶ 11 (internal
quotation marks and citation omitted); see 2 LaFave, supra, § 3.7(d), at 414 (explaining that
a mere suspicion that the objects in question are connected with criminal activity will not
suffice).

{15} In order for a search or seizure to be lawful there “must be a sufficient nexus between
(1) the criminal activity, and (2) the things to be seized, and (3) the place to be searched.”
2 LaFave, supra, § 3.7(d), at 518. “[U]nless it is . . . shown to be probable that [the items
to be searched] constitute the fruits, instrumentalities, or evidence of [a] crime,” then “a
lawful basis for a search has not been established” and the items described in a warrant or
affidavit “are not a legitimate object of a search.” 2 LaFave, supra, § 3.7(d), at 518-19.

{16} “[A]n issuing court’s determination of probable cause . . . must be upheld if the
affidavit [supporting the warrant] provides a substantial basis to support a finding of
probable cause.” State v. Trujillo, 2011-NMSC-040, ¶ 17, 150 N.M. 721, 266 P.3d. 1
(internal quotation marks and citation omitted). “[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. This “deferential standard of review is appropriate to further the .
. . strong preference for searches conducted pursuant to a warrant” and to encourage “police
officers to procure a search warrant.” Trujillo, 2011-NMSC-040, ¶ 18 (alteration in original)
(internal quotation marks and citation omitted). In situations that present doubtful or
marginal cases of probable cause, the reviewing court should resolve the issue by giving
preference to the warrant. Id. (quoting Massachusetts v. Upton, 466 U.S. 727 (1984)). This
standard, however, “does not preclude the reviewing court from conducting a meaningful
analysis of whether the search warrant was supported by probable cause,” Williamson,
2009-NMSC-039, ¶ 30, but rather precludes the reviewing court from substituting its
judgment for that of the issuing judge, Trujillo, 2011-NMSC-040, ¶ 19.

{17} Therefore, in evaluating a probable cause determination, the reviewing court must
focus on the issuing judge’s determination regarding the information contained in the four
corners of the affidavit. Haidle, 2012-NMSC-033, ¶ 10; Vest, 2011-NMCA-037, ¶ 7. If the

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reviewing court concludes that the issuing judge’s determination was correct, the reviewing
court shall uphold the probable cause determination regardless of how the reviewing court
might have handled the warrant as the issuing judge. Evans, 2009-NMSC-027, ¶ 12.

{18} The Court of Appeals held that it is “undisputed that Agent Kinch’s affidavit
provided probable cause to search Defendants’ dwelling for evidence of child pornography.”
Gurule, 2011-NMCA-063, ¶16. The Court noted, however, that probable cause is only one
consideration in determining whether a search warrant is valid—a warrant must also be
specific in both particularity and breadth. Id. The Court of Appeals stated that the issue was
not whether there was probable cause to search the Defendants’ dwelling for evidence of
child pornography, but rather whether the warrant was overly broad in its inclusion of the
digital camera. Id. ¶ 17.

{19} The Court of Appeals looked to Agent Kinch’s affidavit to resolve this issue and
concluded that

[i]n the absence of any indication that this camera, which did not contain a
memory card, was being used for the storage of internet child pornography,
or was being used for the independent manufacture of pornography, there
was no substantial basis for concluding that there was probable cause that the
camera would contain child pornography.

Id. ¶ 20. The Court explained that absent any indication that the camera was being used for
child pornography, the mere fact that the digital camera could hold media storage was
insufficient. Id. ¶¶ 21-22. The Court also expressed concerns that allowing searches like
the one presented would result in fishing expeditions of expressive media, such as digital
cameras, and presented First Amendment concerns. Id. ¶ 21. The Court of Appeals,
therefore, concluded that there was no probable cause to support the seizure of the digital
camera and that the district court properly suppressed the digital camera. Id. ¶ 23.

{20} The State asserts that both the district court and Court of Appeals erred in concluding
that the search and seizure of the digital camera was not supported by probable cause. The
State directs this Court’s attention to Agent Kinch’s affidavit, which stated that based on
“her training and experience, online child predators have a very likely probability of
possessing images of child pornography.” Agent Kinch’s affidavit further stated that those

interested in child pornography are likely to maintain their collections for
months, years and even decades. [That] these collections of child
pornography could be in hard form, to wit: magazines, video collections,
digitally stored, or loosely kept in hard form. . . . This is why it is important
to seize all computer devices, and photographic equipment to which
residents have access. . . . [It is also necessary] to seize most or all computer
items . . . [and c]omputer storage media [that] include[s] but [is] not limited
to floppy disks, hard drives, tapes, DVD disks, CD-ROM disks or other

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 magnetic, optical or mechanical storage which can be accessed by computers
to store or retrieve data or images of child pornography . . . . [S]earching
computer systems for criminal evidence requires experience in the computer
field and a properly controlled environment.

(Emphasis added.). The State asserts that this information, coupled with Agent Kinch’s
investigation regarding the Defendants’ use of Gnutella, provided the issuing judge with
enough information to “reasonably infer that all or a substantial number of the files offered
on the peer-to-peer network were child pornography and that [a person with such] quantities
of child pornography would likely have a larger collection in digital or print form.”

{21} The State further asserts that when a neutral judicial officer determines that a
dwelling contains contraband or evidence of a crime, “the officer can search every container
and location within the permitted area where that item could be located.” State v. Hinahara,
2007-NMCA-116, ¶ 20, 142 N.M. 422, 166 P.3d 1129. Based on this rationale, the State
asserts that because the warrant authorized the officers to “search for photographs of
children participating in prohibited sexual acts,” Agent Kinch was justified in searching the
digital camera for images of children participating in such acts without the need for an
additional search warrant to search the camera. The State cites United States v. Paull, 551
F.3d 516 (6th Cir. 2009) and United States v. Upham, 168 F.3d 532 (1st Cir. 1999) to
support its assertion.

{22} In Paull, the defendant subscribed to an “online sharing-community that was created
specifically for sharing child pornography collections.” 551 F.3d at 523 (quotation marks
omitted). The court held that if there was probable cause to believe the defendant possessed
child pornography at this residence, then there was probable cause to search the most likely
hiding places where such images could be concealed. Id. at 524.

{23} In Upham, the defendant challenged the particularity requirement of the warrant,
asserting that it was too generic in its description of what was to be seized. 168 F.3d 532,
534-35. In addressing the defendant’s concerns, the court explained that a warrant must
supply enough information to control the executing officials’ judgment regarding what to
take, and cannot be so broad as to include items that should not be seized. Id. at 535. The
court determined that the defendant’s argument rested on the warrant’s breadth, and
concluded that the warrant’s language authorizing “[a]ny and all computer software and
hardware, . . . computer disks, disk drivers . . .” to be seized and searched off-premises was
not overly broad, but rather was “about the narrowest definable search and seizure
reasonably likely to obtain the images” of child pornography. Id. (alterations in original).
The court went on to note that if the images could have been obtained through an on-site
inspection, then there might not have been a sufficient justification for allowing the seizure
of all computer equipment, since that category of “computers” may have included items that
were not evidence of the crime. Id. The court concluded that because it is not easy to search
computers and electronics for information that may have been deleted from, or hidden on,
a hard drive or internal memory, on-site inspection was not feasible and the search and

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seizure was lawful. Id.

{24} Therefore, by relying on these cases, the State appears to assert that because the
issuing judge determined that there was probable cause to search Defendants’ residence for
evidence of child pornography, and because evidence of possessing or distributing child
pornography could be contained on the digital camera’s internal memory, that the search and
seizure of the digital camera was lawful.

{25} Defendants assert that the warrant was overly broad and did not provide probable
cause to support the search and seizure of the camera. Defendants argue that Agent Kinch’s
investigation did not provide any information that Defendants were creating child
pornography and did not establish a nexus between the digital camera and the possession of
pornographic images. Defendants, therefore, argue there was no probable cause to search
or seize items related to creating or manufacturing child pornography. Defendants further
assert that probable cause must exist for each item seized and that the affidavit did not
contain any information that would lead an issuing court to believe that the camera was
related to the pornographic images on the computer. Defendants contend that United States
v. Gleich, 397 F.3d 608 (8th Cir. 2005), provides an example of how a situation, like the one
presented here, should be handled.

{26} In Gleich, the victim told police that the defendant “had sexually assaulted him,
photographed him in a sexually explicit pose[,] and exposed him to pornographic images of
children on his computer and in magazines.” 397 F.3d at 610. Based on this information,
Officers obtained a search warrant. Id. The warrant permitted officers to search the
defendant’s “home and personal computer for child pornography and objects which may
contain child pornography.” Id. The police officers conducted a search and seized multiple
computers and computer disks, and “found, but did not seize, a digital camera.” Id. After
examining the files on the computer and concluding that some of the images were taken with
a digital camera, the officers obtained a second search warrant for the purposes of searching
and seizing the digital camera. Id. The defendant challenged the validity of the second
warrant asserting that there was no connection between the photos on the computer and the
digital camera and therefore there was no probable cause. Id. at 612. The court disagreed.
Id. In so doing, the court explained that in the affidavit establishing probable cause to search
the camera, the officer stated that the images discovered on the defendant’s computer during
the first lawful search appeared to have been taken with a digital camera and that if the
camera was analyzed, the bureau of criminal investigation lab could determine if the images
on the defendant’s computer were taken with that particular digital camera. Id. Based on
this nexus, the court concluded that there was probable cause to support the issuing of the
second warrant and the subsequent search of the camera. Id. Defendants, therefore, rely on
Gleich to support their assertion that the State should have obtained a second warrant before
searching the seized digital camera.

{27} We disagree. Although Defendants are correct that Agent Kinch could have
attempted to secure an additional search warrant for the digital camera, she did not need to

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do so under the facts of this case. In State v. Hinahara, our Court of Appeals explained that
when “there is probable cause to search for a particular item, the officer can search every
container and location within the permitted area where that item could be located.” 2007-
NMCA-116, ¶ 20. In Hinahara, the defendant was charged with multiple counts of sexual
exploitation of a minor and aggravated assault against a household member. Id. ¶ 2. The
charges arose after images of minors engaging in sexual activity were discovered on the
defendant’s computer’s hard drive. Id. The defendant moved to suppress the images found
on the computer as an unconstitutional search, asserting that “the search warrant was
insufficiently particular and the search exceeded the scope of the warrant.” Id. ¶ 6. The
warrant and accompanying affidavit provided for the search and seizure of “firearms,
magazines, ammunition and gun cases, computers, video tapes, computer diskettes, CD[s],
DVDs, photographs and magazines containing child pornography or any other miscellaneous
items.” Id. ¶ 10 (alteration in original). The Court of Appeals concluded that the
particularity requirement had been satisfied because “[a]ll of the items sought in the warrant
were potentially connected with the assault and the child pornography described in the
affidavit.” Id. The Court concluded that “the seizure of unlawful images from within [the
d]efendant’s computer was within the scope of the warrant because the warrant authorized
the search of the computer for the illegal images.” Id. ¶ 21.

{28} Here, Agent Kinch’s investigation revealed that a computer at Defendants’ address
was being used to share images of child pornography. Moreover, Agent Kinch stated that,
based on her experience, “online child predators have a very likely probability of possessing
images of child pornography” in various forms, making it necessary “to seize all computer
devices, and photographic equipment to which the [subject of the investigation has] access.”
Based on this information, Agent Kinch attested that she had probable cause to believe that
evidence of “the exploitation of children by means of the possession and attempted
distribution of child pornography in violation of [NMSA 1978, Section] 30-6A-3” would be
found at Defendants’ address. Based on Agent Kinch’s investigation, training, and
experience investigating online child predators, there was a sufficient nexus between the
suspected crime of possessing and attempting to distribute child pornography over an online
network and the digital camera where such images might be stored. Therefore, because
Agent Kinch had probable cause and was authorized by the warrant to search Defendants’
address for evidence related to possession and attempted distribution of child pornography,
Agent Kinch was permitted to search every container and location within Defendants’ home
in which such evidence could be stored, including computers and the digital camera.

{29} Accordingly, we reverse the Court of Appeals and hold that there was probable cause
to support the search and seizure of the digital camera. Because we conclude that there was
probable cause to search the digital camera, we further hold that the district court and Court
of Appeals erred in excluding Stevens’ testimony under the fruit of the poisonous tree
doctrine.

B. Confrontation Clause

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{30} We first address Defendants’ assertion that the State is not an aggrieved party and
does not have a right to appeal whether the district court and Court of Appeals’ erred in
concluding that the statement made by Defendant Davis to her son, Robert, was testimonial
and would violate the Confrontation Clause. In support of this assertion, Defendants argue
that if the State wishes to use Robert’s testimony against Defendant Gurule, the State could
move to have the cases severed. Therefore, Defendants assert that this Court need not
resolve this issue because the State could do so on its own by filing a motion to sever and
proceeding against Defendants separately.

{31} The State has the right to appeal the district court’s ruling pursuant to NMSA 1978,
Section 39-3-3 (B)(2) (1972). Section 39-3-3 provides that the State may

[i]n any criminal proceeding in district court . . . appeal . . . to the [S]upreme
[C]ourt or [C]ourt of [A]ppeals, . . . within ten days from a decision or order
of a district court suppressing or excluding evidence . . . if the district
attorney certifies . . . that the appeal is not taken for purpose of delay and that
the evidence is a substantial proof of a fact material in the proceeding.

Furthermore, Defendants’ argument is nothing more than conjecture and rests on the
assumption that the district court would grant the State’s motion to sever and would allow
for the statement to be admitted into evidence at Defendant Gurule’s trial under the hearsay
rules. Therefore, we conclude that the State is permitted to appeal the district court’s ruling.
Because the State is permitted to appeal this issue, we now address the confrontation issue.

{32} The State asserts that the Court of Appeals erred in concluding that the statement
made by Defendant Davis to her son, Robert, was testimonial and would violate the
Confrontation Clause. The State contends that the Confrontation Clause does not apply to
nontestimonial statements like the statement made by Defendant Davis to Robert in which
she informed him that she had witnessed Defendant Gurule looking at child pornography.
The State, therefore, asserts that because the Confrontation Clause does not apply to
nontestimonial statements made between two family members, the Court of Appeals erred
in excluding the statement exchanged between Defendant Davis and Robert on confrontation
grounds. Defendant Gurule asserts that Defendant Davis’ statement to her son was
testimonial and, therefore, the Court of Appeals and the district court were correct in
excluding Robert’s testimony on confrontation grounds.

{33} “The Confrontation Clause of the Sixth Amendment provides that in all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him” and “bars the admission of testimonial statements of a witness who did not
appear at trial unless he [or she] was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” State v. Walters, 2007-NMSC-050, ¶ 21, 142 N.M. 644,
168 P.3d 1068 (first two alterations in original) (internal quotation marks and citations
omitted). We review questions of admissibility under the Confrontation Clause de novo.
State v. Tollardo, 2012-NMSC-008, ¶ 15, 275 P.3d 110.

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{34} Here, the Court of Appeals concluded that the district court properly excluded
Defendant Davis’ statement to her son Robert. Gurule, 2011-NMCA-063, ¶ 29. In so doing,
the Court of Appeals concluded that Defendant Davis’ statement fell within the “core class”
of testimonial statements as laid out in Crawford v. Washington, 541 U.S. 36 (2004), because
it was objectively reasonable that the statements made by Defendant Davis would be used
at trial. Gurule, 2011-NMCA-063, ¶ 29. However, the Court of Appeals reached this
conclusion without providing any analysis as to why Defendant Davis’ statement fell within
the “core class” of testimonial statements.

{35} In Crawford, the United States Supreme Court explained that an “accuser who makes
a formal statement to government officers bears testimony in a sense that a person who
makes a casual remark to an acquaintance does not.” 541 U.S. at 51. The Court went on to
define testimonial statements as “solemn declaration[s] or affirmations made for the purpose
of establishing or proving some fact,” and provided examples of statements that would be
considered testimonial, such as

ex parte in-court testimony or its functional equivalent—that is, material such
as affidavits, custodial examinations, prior testimony that the defendant was
unable to cross-examine, or similar pretrial statements that declarants would
reasonably expect to be used prosecutorially[;] extrajudicial statements . . .
contained in formalized testimonial materials, such as affidavits, depositions,
prior testimony, or confessions[;] . . . [and] statements that were made under
circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial.

Crawford, 541 U.S. at 51-52. Post-Crawford cases addressing the issue regarding what
constitutes a testimonial statement have focused on the declarant’s primary purpose in
making the statement. See Michigan v. Bryant, 562 U.S. __, ___, 131 S. Ct. 1143, 1162
(2011); see generally Davis v. Washington, 547 U.S. 813 (2006). In Bryant, the Court
explained that the question regarding whether a statement is testimonial requires a court to
objectively evaluate the circumstances in which the interrogation occurred, including the
motives of the parties involved. 562 U.S. at ___, 131 S. Ct. at 1161, 1163-67.

{36} Defendants assert that the Court of Appeals was correct in classifying the statement
as testimonial and that the Confrontation Clause required the exclusion of Robert’s
testimony. Defendants cite State v. Walters, 2007-NMSC-050, ¶ 23, in support of their
assertion that the admission of a testimonial statement of a co-defendant violates the
Confrontation Clause. Walters, however, presented a different situation than the one
presented here.

{37} In Walters, the co-defendants’ statements were “elicited by police” during a police
investigation that was intended to “prove past events potentially relevant to [a] later criminal
prosecution.” Id. (internal quotation marks and citation omitted). Therefore, in Walters, this
Court held that “statements of . . . co[-]defendants, [that are] products of a police
investigation, are testimonial for the purposes of Crawford.” Walters, 2007-NMSC-050, ¶
23. Walters is distinguishable from the present case because, here, Defendant Davis’

11
statement was made to her son, not a police officer, and was not part of a police
investigation. Although Defendants and the Court of Appeals do not appear to view the
distinction between a statement made to police officers or state officials and one made to a
family member as relevant to the inquiry regarding whether the admission of Robert’s
testimony would violate Defendant’s confrontation rights, we view this factor to be a
relevant consideration when evaluating whether a statement is testimonial.

{38} Here, Defendant Davis’ statement to her son is more akin to the situation in which
a person makes a casual remark to an acquaintance than to an individual who makes a formal
statement to a government official as part of a police investigation. See Crawford, 541 U.S.
at 51. Moreover, it is not clear that a reasonable person in Defendant Davis’ position would
objectively believe that a statement made to his or her child would be used in a later criminal
prosecution. See Davis, 547 U.S. at 814. Thus, Defendant Davis’ statement lacks the
hallmarks of a testimonial statement. Because Defendant Davis’ statement was not
testimonial, the Confrontation Clause under the post-Crawford line of cases is not
implicated. Therefore, we must now determine whether the district court properly excluded
Defendant Davis’ statement under Bruton v. United States, 391 U.S. 123 (1968).

{39} The district court found that Robert’s testimony would violate Defendant Gurule’s
confrontation rights under Bruton, 391 U.S. 123. In Bruton, two individuals were charged
with armed postal robbery. 391 U.S. at 124. At the joint trial a postal inspector testified that
one of the defendants confessed to him that he and the co-defendant committed the armed
robbery. Id. The postal inspector obtained the confession during the course of two
interrogations at the city jail where the defendant was being held on state criminal charges.
Id. The United States Supreme Court held that the admission of one defendant’s confession
that implicated the co-defendant violated the co-defendant’s “right of cross-examination
secured by the Confrontation Clause of the Sixth Amendment.” Id. at 126. The Court
explained that the introduction of the defendant’s confession, and the statements implicating
the co-defendant, added substantial weight to the government’s case in a form that was not
subject to cross-examination because the defendant did not take the stand. Id. at 127-28.

{40} The central question is whether Bruton survives as a stand-alone objection under the
Confrontation Clause for co-conspirators, independent of Crawford analysis, or whether
Crawford now modifies Bruton to the extent of applying only to testimonial statements by
a co-conspirator implicating another co-conspirator. If the latter, then Bruton would not
apply to this non-testimonial statement for the very reason that Crawford does not apply.
Recent federal cases addressing this question would appear to lend support to the latter view
that Bruton must now be seen in light of Crawford. See United States v. Berrios, 676 F.3d
118, 128 (3d Cir. 2012) (“[B]ecause Bruton is no more than a by-product of the
Confrontation Clause, the [United States Supreme] Court’s holdings in Davis and Crawford
likewise limit Bruton to testimonial statements.”); United States v. Smalls, 605 F.3d 765, 789
n.2 (10th Cir. 2010) (“[T]he Bruton rule, like the Confrontation Clause upon which it is
premised, does not apply to nontestimonial hearsay statements.”). For that reason, we
conclude that Bruton is no help to Defendant in the context of this case. We emphasize,
however, that Defendant has not raised a separate claim under our State Constitution, and
we offer no opinion as to whether confrontation would be more broadly available on that
basis. Also, we point out that hearsay considerations under our state rules of evidence—that

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do not necessarily track the Confrontation Clause—were raised below but remain undecided
due to the priority of constitutional issues. Hearsay objections as well as questions related
to joinder and severance remain for the district court to consider on remand.

{41} Accordingly, we conclude that the statement between Defendant Davis and her son
was nontestimonial, and that Robert’s testimony was improperly excluded under the
Confrontation Clause. Therefore, we reverse the Court of Appeals and remand this issue to
the district court to determine whether the statement may be admitted pursuant to the rules
of evidence.

III. CONCLUSION

{42} We hold that the officers had probable cause to seize the digital camera. Accordingly,
the Court of Appeals erred in affirming the exclusion of Stevens’ testimony under the fruit
of the poisonous tree doctrine. We further hold that the Court of Appeals erred in
concluding that the statements made between the two family members were testimonial.
However, because the statements are hearsay, we remand this issue back to the district court
to conduct a hearing regarding the statement’s admissibility under the rules of evidence.

{43} IT IS SO ORDERED.

___________________________________
PETRA JIMENEZ MAES, Chief Justice

WE CONCUR:

___________________________________
RICHARD C. BOSSON, Justice

___________________________________
EDWARD L. CHÁVEZ, Justice

___________________________________
CHARLES W. DANIELS, Justice

___________________________________
BARBARA J. VIGIL, Justice

Topic Index for State v. Gurule, No. 33,023

APPEAL AND ERROR
Interlocutory Appeal

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Standard of Review
Substantial or Sufficient Evidence

CONSTITUTIONAL LAW
Confrontation
Fourth Amendment
Suppression of Evidence

CRIMINAL LAW
Sexual Exploitation of Children
Controlled Substances

CRIMINAL PROCEDURE
Affidavit for Warrant
Motion to Suppress
Probable Cause
Search Warrant
Search and Seizure

EVIDENCE
Hearsay Evidence
Suppression of Evidence
Witnesses

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