NM Supreme Court rules search warrant valid in Alamogordo drug case

A divided New Mexico Supreme Court issued a 4-1 ruling Thursday on a search warrant based on information from a confidential informant in a pending criminal case in Otero County. The ruling allows a trial to proceed for an Alamogordo woman facing drug possession charges.

Michelle Perea, 48, was indicted by a grand jury in 2019 on possessing methamphetamine and drug paraphernalia charges. Perea challenged the search warrant authorizing Alamogordo police to search her home, where police said methamphetamine was found.

The warrant stated that “within the last 72 hours a quantity of methamphetamine consistent with trafficking has been seen by the (confidential informant).”

Perea’s attorney argued that the warrant was defective because it did not state the basis for that knowledge, how much methamphetamine had been observed or how the informant knew the amount was “consistent with trafficking.”

State District Judge Angie Schneider ruled that probable cause had not been established to justify the search warrant, and the resulting evidence inadmissible. The Court of Appeals reversed that decision, and Perea appealed to the state Supreme Court as her trial was put on hold.

Under New Mexico law, hearsay by a confidential informant is considered sufficient for probable cause if the informant is credible and there is a substantial basis for the informant’s knowledge, according the state Supreme Court opinion authored by Justice C. Shannon Bacon.

The informant’s credibility was not called into question. As to the second requirement, the high court ruled, “the affidavit identified that the (confidential informant) personally observed an illegal substance, in quantities sufficient to indicate illegal activity, and therefore provided sufficient factual detail from which the magistrate court could reasonably infer ‘probable cause to believe that a search (would) uncover evidence of wrongdoing.”

Justice Michael Vigil dissented, arguing the informant’s statement was enough to establish probable cause for possession of methamphetamine, but not for a charge of trafficking — a different crime with different penalties.

Vigil wrote that the informant’s statement about trafficking “is not supported by stating any of the conditions under which (they) saw methamphetamine, the circumstances in which the methamphetamine was seen, the amount of methamphetamine, how the methamphetamine was packaged, if at all, whether there was any paraphernalia used in the packaging and sale of methamphetamine, what the (informant) saw to say that the methamphetamine was ‘being handled’ by Petitioner, or any other details.”

Vigil added that the warrant was not even clear whether the opinion that Perea had an amount of the drug “consistent with trafficking” was the informant’s opinion or that of the police detective.

The majority included state District Judge Cindy Leos, taking the place of Justice Julie Vargas, who recused herself. Vigil was the lone dissenter.

The ruling allows Perea’s trial to proceed with the evidence discovered under the search warrant to be included in the prosecution of her case.