Legal wrangling over the outcome of Heath White’s preliminary hearing continued, as his attorney Sam Bregman filed a reply Aug. 13 to a response by assistant attorney general Jonathan Gardner.
White, Torrance County magistrate judge and former Torrance County sheriff, is under felony indictment in the Seventh Judicial District. He is facing charges including embezzlement, violations of government conduct act and misuse of public money.
In preliminary hearing, judge Charles Brown ruled to suppress evidence obtained under search warrants issued to State Police during their investigation.
Brown then allowed the state to file a response to his ruling, subsequently received by the court Aug. 6.
In that response, Gardner argues the evidence should be allowed. In his reply, Bregman cited three issues with the state’s argument.
Gardner argued that Brown had acted outside the purview of the preliminary hearing and the law.
Gardner argued that Brown acted outside the Rules of Criminal Procedure because suppression of evidence is not allowed in a preliminary hearing.
Bregman says in his reply that the state cited “not a single rule to support its argument.” Quoting Brown on day three of the proceedings, Bregman writes, “There’s nothing in the rules that prevent a judge from sua sponte [of one’s own will] issuing any order they believe justice requires.”
Bregman continued, “Any defense objection or request which is capable of determination without a trial on the merits may be raised before trial by motion.”
Referring to a rule Bregman says governs preliminary hearings, he writes, “That rule imposes no limitation on the court in addressing motions to suppress at a preliminary hearing,” as long as such a motion is introduced at least 60 days prior to trial in order to preserve the prosecution’s right to appeal. “In fact, the rule explicitly states that the rules of evidence do apply in such hearings,” Bregman said in the reply.
The second issue Bregman addresses in his reply is Gardner’s argument that there were no misrepresentations or omissions in the warrants.
He cites the prosecution’s inaccurate statement that White owns The Old Mill Feed Store in Edgewood.
According to an Aug. 3 motion to produce records from the website LinkedIn, filed by Gardner, Bobby Salvo claimed to be the owner of the store.
The state also asserts that White represented himself as the owner on the website LinkedIn. The web page was deleted following pretrial, according to Gardner, and now constitutes a claim by the state that White tampered with evidence.
Bregman’s reply states that White was incorrectly represented as having a federal firearms license.
Other misrepresentations, according to Bregman, include an incomplete inventory of Torrance County Sheriff’s Department property, substantiated by the return of firearms the county didn’t know they had; purchases at AutoZone attributed to White that were not signed by him; and named items at White’s house which did not belong to the county.
Bregman says the warrant affidavit cited evidence being at risk of destruction by White, while White had been trying, after his election to magistrate judge, to return county property stored at his home for up to 17 years. White’s efforts to return property was withheld from the affidavit, according to Bregman.
In Gardner’s response to the ruling, he wrote, “There were no misstatements or omissions in the affidavits that were either deliberately false or made with reckless disregard for the truth.”
Bregman’s third argument in his reply reads, “The warrant lacks probable cause and the investigation and state has failed to establish probable cause.”
“The credibility of the affiant [State Police Officer Mitch Bengston] and the trustworthiness of the entire investigation were so tarnished that the Court can rightfully find no probable cause even if the Court considered the evidence instead of suppressing it,” Bregman wrote.
White, through Bregman, has filed a motion opposing the production of records held by LinkedIn.
Gardner filed a motion Aug. 13 for Brown to set a date and time to hear the motions filed in the case including production of records by LinkedIn; disclosure of White’s Albuquerque Police Department internal affairs file; disclosure of White’s Torrance County Sheriff’s Office personnel file; and suppression of evidence seized pursuant to search warrants.