Telephonic approval of search warrants okay in New Mexico

The New Mexico Constitution does not prohibit law enforcement officers from obtaining telephonic approval of search warrants. So the New Mexico Supreme Court held in State v. Boyse.

Law enforcement officers went to Defendants’ property to investigate a report of a dead horse, and after one of Defendants admitted having several dead horses and cats, an officer typed out a search warrant to investigate Defendants’ apparent cruelty to animals. The magistrate court was closed, so the officer spoke with a magistrate by telephone, and read the affidavit verbatim to the judge, who approved the warrant. Ultimately, the officers found evidence that led them to charge Defendants with over 100 counts of felony and misdemeanor cruelty to animals.

Defendants claimed that telephonic approval of the search warrant violated Article II, Section 10 of the New Mexico Constitution, which provides that no search warrant shall issue “without a written showing of probable cause, supported by oath or affirmation. Defendants argued that the words “a written showing” mean that a search warrant must be physically shown to a judge, and that telephonic approval is not sufficient. The Court of Appeals agreed with Defendants. See State v. Boyse, 2011-NMCA-113.

In an opinion by Justice Barbara Vigil, the Supreme Court reversed. The Court relied primarily on a  number of dictionaries, which define “showing” as including more than “placing something into sight or view.” For example, the 1910 edition of Black’s Law Dictionary defines “[to] show” as “to make apparent or clear by evidence; to prove.”

This definition was particularly significant because it existed at the time the New Mexico Constitution was adopted in 1911. (Although the Court does not specifically say so in this opinion, New Mexico law has long been that constitutional and statutory provisions are to be interpreted as they would have been understood at the time of enactment).

This opinion makes a great deal of sense, as there seems little reason to require law enforcement officers, especially in a largely rural state like New Mexico, to physically show an affidavit and proposed search warrant to a judge, as long as a written version of the affidavit and warrant are preserved for future examination.

UPDATE (June 11, 2013): For press coverage of the decision, the Albuquerque Journal has this report, and Milan Simonich has this report in the Las Cruces Sun-News. In addition, Debra Cassens Weiss of the ABA Journal has this report about the case, in which she kindly mentions this blog.

UPDATE (June 19, 2013): Yesterday the Las Cruces Sun-News ran this report by James Staley about local law enforcement’s positive reaction to the ruling.

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