Informant's credibility questioned in drug case

PORTALES — An informant’s credibility was front and center during a Tuesday morning hearing to suppress evidence in the case of a Roosevelt County man.

Judge Donna Mowrer told the court she would inform council of her decision by Monday at the latest on Cody Banister.

Banister, 36, was arrested with several other Roosevelt County residents in an April 2016 drug sting. Attorney John McCall questioned the validity of a confidential informant working for the Roosevelt County Sheriff’s Office.

McCall said Banister’s arrest affidavit said the informant who led to his arrest had given information in the past that led to two felony arrests and the recovery of thousands of dollars in stolen property.

Tim Rose, the state’s 10th Judicial district attorney and the prosecutor of the case, admitted a misstatement from Sheriff Malin Parker, as no arrests were made based on information from the informant. He argued that it, “had literally nothing to do with the credibility of the informant.”

Rose also contended that Parker did not intentionally make the misstatement.

“He indicated quite frankly, judge, that he thought at the time that it was true and correct, that he personally knew the facts that were in his mind concerning two different cases, and he gave instructions to other law enforcement officers to make the arrests,” he said. “He assumed that those arrests, by that time, had been made. That, Judge, I think, rises in this case to a level of negligence, but I don’t think it rises to a level of negligence as required under the case law for finding that you should proceed any further.”

McCall claimed, however, an affidavit should be material fact, so any inconsistencies undercut the foundation of the case against Banister and others.

“If it’s not valid, this affidavit is invalid, and therefore everything flowing forth from it would be an invalid action on the part of the state in this case,” he said.