Constitutional Law

Search warrants obtained by telephone are permissible in New Mexico, state's top court rules


The New Mexico Constitution allows search warrants to be obtained and approved by telephone, despite its requirement for a written showing of probable cause, the New Mexico Supreme Court has ruled.

The court ruled in the case of Lester and Carol Boyse of Mesilla, who pleaded no contest to 107 counts of misdemeanor animal cruelty but reserved their rights to appeal. The couple contended a deputy erred when he obtained a search warrant through a telephone conversation with a magistrate, rather than an in-person appearance. The New Mexico Appellate Law Blog, the Alamogordo Daily News and the Associated Press have stories.

Sheriff’s police were called to the Boyses’ home after receiving a report that a dead horse was on their property. Carol Boyse admitted there were two dead horses on the property, an unknown number of cats in the house, and three dead cats in the freezer, according to the court’s opinion (PDF). The officer who obtained the search warrant wrote an affidavit, called a magistrate, took an oath, and read the affidavit verbatim.

The Boyses cited a provision in the New Mexico Constitution that requires search warrants to be based on “a written showing of probable cause, supported by oath or affirmation.” The Supreme Court said a telephone showing of probable cause satisfied the requirement. “We interpret the meaning of the word ‘showing’ … as a presentation or statement of facts that can be made through audible or other sensory means as well as through visual means,” the court said.

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