dissenting.
I respectfully dissent. I would affirm the decisions of the Court of Appeals and the trial court.
I cannot join in the majority opinion because I believe the affidavit for the first search warrant was issued without probable cause. The State concedes that if the first warrant was invalid, the remaining warrants are also invalid as “fruit of the poisonous tree.”
Since the majority opinion sets out at length the current law applicable to affidavits for search warrants, I will review briefly only those principles of law which I feel this affidavit fails to meet.
The fourth amendment to the United States Constitution was made applicable to the states through the fourteenth amendment in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). It guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. * * * ” U.S. Const, amend. IV. Both the fourth amendment and Article II, Section 10 of the New Mexico Constitution provide that no warrants shall issue, but upon a showing of probable cause. U.S. Const, amend. IV.; N.M. Const., Art. II, § 10.
Probable cause is established by facts and circumstances within the knowledge of the officers, based on reasonably trustworthy information, which are sufficient to warrant a prudent man in believing that the defendant had committed or is committing a crime. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); State v. James, 91 N.M. 690, 579 P.2d 1257 (Ct.App.), cert. denied, 91 N.M. 751, 580 P.2d 972 (1978); State v. Ramirez, 95 N.M. 202, 619 P.2d 1246 (Ct.App.1980).
A search warrant will issue only on a sworn written statement showing probable cause based on substantial evidence. N.M. R.Crim.P. 17(a) and (f), N.M.S.A.1978 (Repl. Pamp.1980). The standard for reviewing an affidavit is a common sense reading of the affidavit as a whole. State v. Duran, 90 N.M. 741, 568 P.2d 267 (Ct.App.1977); Accord United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).
The affidavit in the instant case fails to establish probable cause for the following reasons:
(1) The primary defect in the affidavit is that it does not state why Officer Allred believed the items to be seized were present at John Snedeker’s residence at the time the warrant was sought. Mere speculation and inferences are not enough to establish probable cause. State v. Turkal, 93 N.M. 248, 599 P.2d 1045 (1979).
(2) The affidavit also fails to state that Officer Allred believed Mr. Snedeker had committed a crime. I agree with the Court of Appeals that nothing in the receipt of property by the president of a university suggests any criminal activity. Even if the statement that the items were not accounted for in university records were accepted, this does not support a conclusion that the items were disposed of improperly.
(3) The test enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), which determines when the evidence used to support an affidavit may be hearsay, was not met by the affidavit in this case. Certain allegations by Officer Allred appear to be based on hearsay or are otherwise unreliable since no factual basis is given for the allegations. While it may be reasonable to infer that Officer Allred personally inspected the records of the University, the affidavit gives one no factual basis to believe he did so. Also, it fails to state which records were examined, who interpreted them and what information such records would normally contain.
(4) The affidavit fails to state that the items to be' seized were ordered for the Safety & Security Department of Western University. It is not implicit in the affidavit that the items were not used in another department of the University.
(5) I agree with the Court of Appeals that the allegation that Mr. Snedeker signed the purchase orders does not show either that he was not authorized to do so or that he converted the items to his own use.
The majority opinion lessens the necessity that a court issuing a warrant inquire as to the factual basis and reliability of hearsay evidence used to support an affidavit for a search warrant. At most, the majority requires “plausible” cause for the issuance of a warrant.
The majority correctly set forth the law, but failed miserably on its application to the facts herein.
For the foregoing reasons, I respectfully dissent.