State v. Price

470 P.3d 265

STATE of New Mexico, Plaintiff-Appellant,

v.Jaycob Michael PRICE, Defendant-Appellee.

NO. S-1-SC-37373

Supreme Court of New Mexico.

Filing Date: August 3, 2020

Hector H. Balderas, Attorney General Marko David Hananel, Assistant Attorney General Santa Fe, NM for Appellant

Bennett J. Baur, Public Defender Kimberly M. Chavez Cook, Appellate Defender Santa Fe, NM for Appellee

VIGIL, Justice.

{1} The district court suppressed records that police officers obtained from Defendant Jaycob Michael Price's cell phone provider pursuant to a search warrant. Under the authority of the search warrant, the officers obtained (1) subscriber information consisting of Defendant's name, date of birth, social security number, and address, (2) cell-site location information (CSLI), and (3) a list of calls and text messages to and from Defendant's cell phone (call/text records). The district court ruled that the affidavit for the search warrant (Affidavit) established probable cause to obtain Defendant's subscriber information but failed to establish probable cause for the CSLI and call/text records, and ordered suppression of the CSLI and call/text records. See Rule 5-211(A)(4) NMRA (2012, amended 2017) ("A warrant shall issue only on a sworn written statement of the facts showing probable cause for issuing the warrant."). The State appeals as permitted by both statute and procedural rule. NMSA 1978, § 39-3-3(B)(2) (1972) ; Rule 12-201(A)(1)(a) NMRA. Jurisdiction properly lies with this Court because Defendant is charged with first-degree felony murder. See State v. Smallwood , 2007-NMSC-005, ¶ 11, 141 N.M. 178, 152 P.3d 821 (concluding "that the legislature intended for [this Court] to have jurisdiction over interlocutory appeals in situations where a defendant may possibly be sentenced to life imprisonment or death"). We affirm in part and reverse in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Affidavit for the Search Warrant

{2} The Affidavit states that on April 2, 2013, at approximately 11:53 p.m., two officers were dispatched to the parking lot of an apartment complex in reference to a shooting. Upon arriving, they made contact with two women at the scene, Margarita and Linda, who were standing next to a sport utility vehicle (SUV). Julio Apodaca (Victim) was lying on the ground next to the SUV and bleeding from his head. Rescue personnel were immediately dispatched to take Victim to the hospital. Margarita told one of the officers that Victim, whom she identified as her brother-in-law, had called her and asked to borrow money. Margarita agreed and told Victim to come to her apartment, where she gave him $100. Victim then left Margarita's apartment for an unknown destination.

{3} About thirty minutes after Victim left the apartment, Margarita and Linda went to get cigarettes, and while they were walking through the parking lot Margarita saw Victim's SUV. As she approached the SUV, Margarita saw Victim sitting in the driver's seat, bleeding from his head. Margarita immediately called 911, and she and Linda performed CPR as instructed until the officers arrived. Victim was taken to the hospital where he was pronounced dead, apparently as a result of a gunshot wound to his head.

{4} Uniformed officers secured the SUV and the surrounding area, and homicide detectives arrived to investigate. At approximately 4:11 a.m. on April 3, 2013, a detective obtained a search warrant to search the SUV. Pursuant to this search warrant, Victim's cell phone was seized from the SUV, and upon physically examining the cell phone detectives discovered that one of the numbers (505-702-4250) was among both the "dialed" and the "received" calls but was not listed as a "contact" in the cell phone. In handwriting the Affidavit adds that the "dialed" and "received" calls to and from 505-702-4250 were placed between the time when Margarita had last seen Victim and when she discovered him in the SUV--an interval of approximately thirty minutes.

{5} A detective phoned 505-702-4250, and when no one answered, the detective hung up without leaving a message. The Affidavit recites that the identity of this person is "crucial" to the investigation and asks that a search warrant be issued to the provider of cell phone number 505-702-4250 (Sprint/Nextel Communications) for the subscriber information and for CSLI and call/text records for the April 1 to April 5, 2013, period. The record proper does not disclose precisely which CSLI and call/text records police obtained pursuant to the search warrant because the record proper on appeal does not include the search warrant's return and inventory. See Rule 9-214 NMRA ("Search warrant") (including the "RETURN AND INVENTORY" form with the form prescribed for authorization of a search warrant). However, at the hearing on the motion to suppress the cell phone records, the district court asked counsel what was obtained pursuant to the search warrant and learned that the records obtained were Defendant's subscriber information and CSLI and call/text records as we have described.

B. Proceedings in the District Court

{6} Information provided in the Affidavit and obtained from further investigation tied Defendant to the number. Defendant was indicted on several charges, including first-degree felony murder of Victim.

{7} Defendant filed a motion to suppress the cell phone records obtained under the search warrant. Defendant argued that the Affidavit failed to establish probable cause for the cell phone records because "[t]he only fact in the affidavit related to the telephone number (505) 702-4250 is that it was dialed and received by [Victim's] phone." Defendant asserted that this did not amount to substantial evidence of probable cause because "otherwise the police would be able to seize the cell phone records of every single person that called, or was called, by a victim." In response, the State asserted that the Affidavit established probable cause for the district court to issue the search warrant.

{8} Following a hearing, the district court issued a written order partially granting the motion to suppress. The district court determined that the Affidavit "lacked sufficient detail to establish probable cause for the scope of this search" because "[o]ther than noting that the calls were made to and from the listed phone number, this is no nexus between 505-7[02]-4250 and this crime." The district court's order stated that "there is no indication within the four corners of the warrant as to when ... [Victim] called [Margarita], there is no indication when he arrived at her apartment, how long he stayed at the apartment or when he received the money and ultimately left." The district court's order repeated, "Other than noting that the calls were made to and from the listed phone number, this is no nexus between 505-7[02]-4250 and this crime." The district court therefore concluded, "Allowing the search beyond the basic identifying information as to the subscriber of this phone number is overly broad, intrusive and not supported by probable cause." Accordingly, the district court granted the motion to suppress as to the CSLI and call/text records and denied the motion to suppress as to the subscriber information.

II. DISCUSSION

A. Carpenter v. United States

{9} In Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 2221, 2223, 201 L.Ed.2d 507 (2018), the United States Supreme Court held that the Fourth Amendment to the United States Constitution requires a search warrant supported by probable cause to obtain CSLI records from a cell phone provider.¹ As described in Carpenter , CSLI is information collected and stored by wireless carriers "for their own business purposes." Id . at 2212. CSLI consists of "a time-stamped record" created each time a cell phone connects to the radio antennas of a wireless carrier's network. Id . at 2211. These radio antennas are called "cell sites." Id . "Cell sites typically have several directional antennas that divide the covered area into sectors." Id. Most cell phones connect to the antennas of the nearest cell sites "several times a minute whenever their signal is on, even if the owner is not using one of the phone's features." Id. The CSLI supports "mapping" of the approximate locations of a cell phone over time by "triangulation" of the locations of the antennas of cell sites with which the cell phone has simultaneously connected. Id. at 2217, 2219. See State v. Carrillo , 2017-NMSC-023, ¶ 34, 399 P.3d 367 (describing how a cell phone operates by continually sending signals to and collecting signals from cell towers throughout the cell network).

{10} This mapping of a cell phone's locations in a period of time "provides an all-encompassing record of the holder's whereabouts." Carpenter , 138 S. Ct. at 2217. "A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor's offices, political headquarters, and other potentially revealing locales." Id . at 2218. Thus, CSLI data "provides an intimate window into a person's life, revealing not only his particular movements, but through them, his familial, political, professional, religious, and sexual associations." Id . at 2217 (internal quotation marks and citation omitted). Because "individuals have a reasonable expectation of privacy in the whole of their physical movements[,]" intrusion into that private sphere, the United States Supreme Court held, qualifies as a search under the Fourth Amendment and requires a warrant supported by probable cause. Id . at 2213, 2217 ; see Katz v. United States , 389 U.S. 347, 351, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (holding that "the Fourth amendment protects people, not places" and that when an individual "seeks to preserve [something] as private" and this expectation of privacy is "constitutionally protected," official intrusion into that privacy is a search that requires a warrant supported by probable cause).

B. Standard of Review

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