State v. Gurule

303 P.3d 838

STATE of New Mexico, Plaintiff–Petitioner,

v.Christopher GURULE and Linda Davis, Defendants–Respondents.

No. 33,023.

Supreme Court of New Mexico.

June 13, 2013.

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' 1 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['] 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 proffered testimonypresented 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 the 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. DISCUSSIONA. 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...