Assistant attorney general Jonathan Gardner filed a motion Nov. 1 with judge Charles Brown, requesting that he reconsider his Oct. 23 ruling to suppress evidence and dismiss charges against Torrance County magistrate judge and former Torrance County sheriff Heath White.

Addressing each of the six felony counts and one misdemeanor charge White faced, Gardner argues the state demonstrated probable cause, while relying on the suppressed evidence to make its case.

The motion states it is unclear as to which of three search warrants Brown suppressed, since he used the singular form, “warrant.”

Gardner also wants an opportunity to “be heard” in a hearing, regarding his request Brown recuse himself, he states, not to re-argue the motion, but “to properly develop the record for appellate review.”

Appellate review means the case would be appealed to the Appeals Court.

The motion argues a preliminary hearing is not the proper forum to decide whether search warrants, and so evidence, was properly obtained.

Exhibits attached to the motion include the three search warrants used in the investigation, which Brown ruled were improperly obtained. One is for White’s residence, one for his vehicle and one for The Old Mill Feed Store in Edgewood.

Lists of property taken under warrant showed nothing removed from the feed store, a Chevrolet pickup was confiscated, and 52 items were removed from White’s residence.

In each application for a warrant, State Police investigator Mitchell Bengston reported that White emailed Torrance County Sheriff’s Office on April 12 and April 14, attempting to return county property; and White’s return of specific county property.

In suppressing the evidence, Brown said Bengston “did not obtain copies of the emails” in the warrant application, thus, “creating a misleading impression of criminal activity.”

Leota Harriman
Leota Harriman

Leota started working for The Independent in 2006, working her way up through the ranks. An employee buyout in 2010 led to her ownership of the newspaper. Leota has served on the board of the N.M. Press Association, and is currently its First Vice President. She is passionate about health and wellness, especially mental health, and loves making art. She can be reached at news.ind.editor@gmail.com.