NM: No PC for SW in VIN switching scheme; not enough shown

Because of 1983’s Gates, it’s a rare case that doesn’t find probable cause, or at least good faith reliance on the finding of PC via Leon. Here’s one from New Mexico on a VIN switching scheme where the search warrant also failed particularity. Suspicious, maybe; probable cause, no. State v. Sabeerin, 2014 N.M. App. LEXIS 83 (August 11, 2014):

The question before us is whether there are sufficient underlying circumstances in the General Arnold property search warrant affidavit from which the issuing judge could conclude that the information learned by Detective Fassler, no matter the source, was credible or reliable. The General Arnold property search warrant affidavit does not contain detailed facts that support such an inference. Cf. State v. Dietrich, 2009-NMCA-031, ¶¶ 14, 23, 145 N.M. 733, 204 P.3d 748 (holding that the search warrant affidavit contained sufficient information regarding the investigating detective’s sources of information, including information from informants and from investigation to support a probable cause determination). While we understand that during the course of his investigation of the Rhode Island property Detective Fassler learned that Tahir did business at the General Arnold property, the affidavit is completely silent regarding the source and substance of such information. Detective Fassler does not specify, within the affidavit, how he learned of this information, nor did he explain the content of the information learned. More questions have been raised than answers have been provided. Was this information such that Detective Fassler could provide as first-hand knowledge? Was this information something he was told by another person, did he get it from documentation or other type of evidence that led him to determine that Tahir was engaging in the same criminal activity at both locations? It is unclear whether the information was obtained through a tip, as Defendant suggests, or whether it was obtained as a result of Detective Fassler’s investigation. The search warrant affidavit does not indicate whether police conducted any investigation into a possible VIN-switching operation at the General Arnold property. Cf. State v. Trujillo, 2011-NMSC-040, ¶ 28, 150 N.M. 721, 266 P.3d 1 (holding that details of the police investigation contained in the search warrant affidavit were sufficient to establish a factual basis for the probable cause determination).

It is a concern that we cannot determine whether the source of this information learned by Detective Fassler is reliable or credible. See Rule 5-211(E) (stating there must be “a substantial basis for believing the source of the hearsay to be credible and . . . that there is a factual basis for the information furnished”); see also State v. Cordova, 1989-NMSC-083, ¶ 17, 109 N.M. 211, 784 P.2d 30 (holding that a two-prong test for evaluating whether hearsay information contained in an affidavit for search warrant is sufficient to establish probable cause under the New Mexico Constitution). There is insufficient information before the issuing judge to determine whether the substance or source of Detective Fassler’s information is credible or reliable. There is also insufficient information before the issuing judge to determine whether the circumstances by which Detective Fassler, or his source, obtained this information, demonstrated the probability that the criminal activity taking place at the Rhode Island property was also taking place at the General Arnold property.

It is also necessary to address whether there are sufficient underlying circumstances in the search warrant affidavit from which the issuing judge could conclude that the “suspicious” vehicles were reasonable grounds to believe that a crime had been committed at the General Arnold property or that evidence of a crime would be found there. Evans, 2009-NMSC-027, ¶ 10. The search warrant affidavit states that “suspicious vehicles” were observed on the premises. In describing the property, it does not explain why the vehicles were suspicious, other than to say that some of the vehicles looked like they were being dismantled and some did not. Cf. Williamson, 2009-NMSC-039, ¶ 32 (upholding a search warrant because the facts describing a suspicious package were sufficiently detailed to support the issuing court’s determination of probable cause).

Additionally, we note that where, as here, the facts provided in the search warrant affidavit only established conduct consistent with lawful activity, our inquiry should be “particularly exacting.” …