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                                                                New Mexico Compilation
                                                              Commission, Santa Fe, NM
                                                             '00'04- 13:51:11 2013.03.13
Certiorari Granted, March 1, 2013, No. 33,938

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-033

Filing Date: November 1, 2012

Docket No. 31,498

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

GREGG CROCCO,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
Louis P. McDonald, District Judge

Gary K. King, Attorney General
Margaret McLean, Assistant Attorney General
Santa Fe, NM

for Appellee

Anthony J. Ayala
Albuquerque, NM

for Appellant

                                         OPINION
SUTIN, Judge.

{1}     Following a warrantless police entry into a private residence, Defendant Gregg
Crocco was arrested and charged with aggravated driving while intoxicated, contrary to
NMSA 1978, Section 66-8-102(D)(1) (2008) (amended 2010). His trial counsel did not
move to suppress evidence that resulted from the warrantless entry. Defendant was
convicted and he appeals, arguing, among other things, that the police made an
unconstitutional warrantless entry into the residence and that his counsel was ineffective for
failing to move to suppress the evidence obtained as a result. We hold that Defendant has

                                              1
made a prima facie showing of ineffective assistance of counsel based on his counsel’s
failure to move to suppress evidence gained from the warrantless entry. We reverse
Defendant’s conviction and remand for a new trial.

BACKGROUND

{2}     Officer Charles Weaver of the City of Rio Rancho, New Mexico, Police Department
was dispatched to 1584 15th Avenue in Rio Rancho, in response to a 911 call that “an
individual . . . had [driven] to a residence on 15th Avenue, driven in the front yard, hit some
property, and had entered a residence. The [occupants of which] did not know him, and the
subject then left.” The individual was later identified as Defendant. Having obtained
fragments of a license plate number and a description of the vehicle, a green Ford Explorer,
Officer Weaver began looking one street over, on 14th Avenue, from the address of the
original incident. He immediately located a vehicle that matched the description he had
received. The vehicle was parked on the street in front of 1690 14th Avenue. A registration
inquiry of the vehicle, returned Defendant’s name and an address in Corrales, New Mexico.

{3}     Based on his observation that the vehicle was “very warm to the touch” and based
on the fact that it matched the description he had received from dispatch, Officer Weaver
called for his back up officer, Sean Ginn. Officer Weaver then looked inside the vehicle and
observed a pint-size bottle of vodka, empty except for a small amount of clear liquid. When
Officer Ginn arrived, Officer Weaver focused his attention on the residence in front of which
the vehicle was parked.

{4}    As to his next steps, Officer Weaver testified as follows:

       I proceeded to the front of [the] residence, 1690 14th Avenue. Officer Ginn
       was with me. We were observing the exterior of the residence. We then
       went up to the front door of the residence. I was somewhat concerned, given
       the totality of the call that we were on, as far as the person reportedly had
       entered a residence that he was not known to be—wasn’t supposed to be
       there. People didn’t know him. So I didn’t know what this individual’s
       intentions were that had made that—approached the original caller, so I went
       up to that house, now at 1690 14th Avenue, rang the doorbell several times,
       knocked on the door to attempt to get somebody to come out.

Officer Weaver testified that he did not hear or see anything, and that there were no signs
of movement inside the house. The door was unlocked and, having opened it, Officers
Weaver and Ginn announced themselves as police officers. From the threshold of the front
door, they could see a pair of legs sticking out as though they were on a couch in the living
room toward the back of the house. Officer Weaver then “directed [his] announcements in
[the] direction” of the legs. He “got no response at all[,]” and he “didn’t see any signs of
movement from the legs.” The officers entered the house and “slowly continued through the
house” toward the legs. Officer Weaver testified that “[w]e . . . cleared our way back to

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where the legs were at. They belonged to [Defendant].”

{5}     According to Officer Weaver, he and Officer Ginn “entered . . . the residence in order
to identify the occupants of the home and any other problems that were going on there,
because [he] was concerned at that point in time for the safety of the folks within.” Officer
Ginn offered a similar account of their reason for entering the house. He testified that
“[b]ased on the . . . information that [Defendant] had entered a home that was not his, we felt
it was up to us to check the safety of the occupants inside the home[.]”

{6}     While Officer Ginn “clear[ed] the rest of the house for other occupants[,]” Officer
Weaver stayed with Defendant. The officer “tried waking him up, yelling at him, [and]
shaking him.” To Officer Weaver, “[i]t was clear . . . that [Defendant] was sleeping or
passed out, and he exhibited extreme signs of intoxication.” After “several moments[,]”
Defendant woke. Officer Weaver testified that he tried to ask Defendant whether he lived
in the house and whether he knew whose house it was but, aside from yelling profanities,
Defendant responded initially by “just staring” at the officer. “[B]ecause of his mannerisms,
because of his screaming profanities and not being cooperative, [Officer Weaver] placed
[Defendant] in handcuffs[.]”

{7}     Defendant told Officer Weaver that the house belonged to somebody named Michael.
Officer Weaver found some mail on the kitchen counter addressed to “Michael” so he “was
somewhat relieved that [Defendant knew] the name of the individual there.” Defendant did
not respond to Officer Weaver’s inquiries regarding whether he had permission to be in the
house or whether the residents of the house knew he was there. Officer Weaver took
Defendant out of the residence and placed Defendant in his patrol car “so as to continue the
investigation.” “Ultimately,” Officer Weaver testified, “based on the information that [he
and Officer Ginn] had that warranted [a driving while intoxicated] investigation[,]” he
contacted an officer from the DWI unit to further conduct such an investigation.

{8}      Officer Joel Holt, of the DWI unit, administered a series of field sobriety tests upon
Defendant. Based on his observations of Defendant’s performance on the field sobriety
tests, as well as the information he had received from the other two officers, Officer Holt
determined that Defendant was impaired, and he placed Defendant under arrest for driving
while intoxicated. At the police station, Defendant submitted two breath samples, the results
of which revealed Defendant’s breath alcohol content to be .26 and .27, more than twice the
legal limit.

{9}     Following a bench trial, Defendant was convicted of aggravated driving while
intoxicated. After trial, but before sentencing, Defendant moved for and was granted leave
to substitute his counsel in this matter. Through his new counsel, Defendant moved to set
aside the verdict or for a new trial. Defendant’s motion was based on ineffective assistance
of counsel, particularly the failure of his trial counsel to move to suppress evidence that was,
in Defendant’s view, “obtained following an illegal entry and search of a home where
[D]efendant was allowed to stay.”

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{10} The district court held a hearing on Defendant’s motion for a new trial based on
ineffective assistance of counsel. The court denied the motion based, in part, on the absence
in the record of any evidence of Defendant’s standing to object to the warrantless entry.
Additionally, the court found that:

        [the officers’] entry into the home was reasonable, not only for officer safety,
        because I don’t believe they really felt they were in danger, but more of the
        safety of any potential occupants of this residence, because they already had
        a report where someone had entered the wrong residence. And their
        continued investigation into the DWI was also reasonable based upon
        information that they had at the time.

{11} Defendant was sentenced in accordance with the guilty verdict, and he appeals from
the final judgment and sentence. On appeal, Defendant argues that his trial counsel was
ineffective because he did not move to suppress evidence on the grounds that the warrantless
police entry into the house in which Defendant was arrested violated the United States and
New Mexico Constitutions. He presents an argument encompassing the evidentiary and
legal support for a motion to suppress which, in his view, establishes a prima facie case of
ineffective assistance of counsel. And he requests that we order the evidence suppressed and
reverse his conviction.

{12} Contrary to the district court’s conclusion that Defendant’s motion for a new trial
based on ineffective assistance of counsel was “not well-taken,” we hold that Defendant has
made a prima facie showing of ineffective assistance of counsel based on his trial counsel’s
failure to move to suppress evidence based on the warrantless police entry into the residence.
We reverse Defendant’s conviction. Defendant is entitled to a new trial. Because we reverse
Defendant’s conviction on this basis, we do not consider Defendant’s remaining arguments.

DISCUSSION

{13} The Sixth Amendment to the United States Constitution guarantees the right to the
effective assistance of counsel. Patterson v. LeMaster, 2001-NMSC-013, ¶ 16, 130 N.M.
179, 21 P.3d 1032. “We review claims of ineffective assistance of counsel de novo.” State
v. Dylan J., 2009-NMCA-027, ¶ 33, 145 N.M. 719, 204 P.3d 44. To evaluate a claim of
ineffective assistance of counsel, we apply the two-part test in Strickland v. Washington, 466
U.S. 668, 687 (1984). Dylan J., 2009-NMCA-027, ¶ 36.

{14} The first requirement of the Strickland test is a showing by the defendant “that
counsel’s performance was deficient,” that is, “that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687. Second, “the defendant must show that the
deficient performance prejudiced the defense[,]” which “requires showing that counsel’s
errors were so serious as to deprive the defendant of . . . a trial whose result is reliable.” Id.
To warrant reversal, a defendant must affirmatively meet both requirements. See id. In this

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case, Defendant meets both requirements of the Strickland test.

Counsel’s Performance Was Deficient

{15} Defendant argues that his trial counsel was ineffective for failing to move to suppress
the evidence obtained as the result of the officers’ warrantless entry into the residence.
Defendant contends that “the officers had no objectively reasonable basis to believe that the
home they entered was the home that . . . Defendant had gone into, or that a person was in
the home, much less that a person was in need of assistance.” Accordingly, Defendant
argues, there was “no exigency that would permit the officers to enter a private home
without a warrant.”

{16} In order to satisfy the reasonableness prong of the ineffective assistance of counsel
test in the context of counsel’s failure to move to suppress evidence, we consider two
questions. See Patterson, 2001-NMSC-013, ¶ 19. First, we consider “whether the record
supports the motion[.]” State v. Martinez, 1996-NMCA-109, ¶ 33, 122 N.M. 476, 927 P.2d
31. Second, we consider “whether a reasonably competent attorney could have decided that
a motion to suppress was unwarranted.” Id. (internal quotation marks and citation omitted).

{17} We believe the record supports a motion to suppress based on the warrantless police
entry. “An officer’s warrantless entry into a person’s home is the exact type of intrusion
against which the language of the Fourth Amendment to the United States Constitution . .
. is directed.” State v. Gutierrez, 2008-NMCA-018, ¶ 16, 143 N.M. 422, 176 P.3d 1154.
Thus, “[w]arrantless searches and seizures inside a home are presumptively unreasonable,
subject only to a few specific, narrowly defined exceptions.” State v. Ryon, 2005-NMSC-
005, ¶ 23, 137 N.M. 174, 108 P.3d 1032. Pertinent to this case is the exception that allows
police, when acting in their community caretaker role under the emergency assistance
doctrine, to enter a home without a warrant or consent. See id. ¶¶ 25-26 (stating that of the
three distinct doctrines, under the community caretaking exception, the one that is applicable
to warrantless intrusions into personal residences is the emergency assistance doctrine). The
emergency assistance doctrine justifies a warrantless entry where police have “a strong
perception that action is required to protect against imminent danger to life or limb[.]” Id.
¶ 31. Officers Weaver and Ginn testified that their decision to enter the house was prompted
by a concern for the safety of the residents.

{18} For the emergency assistance doctrine to apply, the State must establish that (1) the
police had reasonable grounds to believe that there was an emergency at hand and “an
immediate need for their assistance for the protection of life or property[,]” (2) the search
must not have been “primarily motivated by intent to arrest and seize evidence[,]” and
(3) there was “some reasonable basis, approximating probable cause, to associate the
emergency with the area or place to be searched.” Id. ¶ 29 (internal quotation marks and
citation omitted).

{19}   As to the first factor, the Ryon Court indicated that the emergency assistance doctrine

                                              5
requires an emergency. See id. ¶ 31. In evaluating this factor, courts should consider “the
purpose and nature of the dispatch, the exigency of the situation based on the known facts,
and the availability, feasibility[,] and effectiveness of alternatives to the type of intrusion
actually accomplished.” Id. ¶ 32 (internal quotation marks and citation omitted). Here,
police were responding to a 911 call made by Andrew Ayala, a resident of 1584 15th
Avenue. According to Mr. Ayala’s testimony, he was sitting in his kitchen, when he and his
sister heard a car approach and “a bump.” Mr. Ayala looked outside to see Defendant,
whom he did not know, approaching the front door. The front door of Mr. Ayala’s home
was unlocked, and Defendant opened it “and staggered in a few steps before [Mr. Ayala]
stopped him.” Mr. Ayala asked Defendant what he was doing there, and Defendant “looked
up [at Mr. Ayala], and it seemed like [Defendant] was scared, and [then] he just started to
walk . . . . back to his car.” Mr. Ayala realized that the bump he heard was the sound of
Defendant having hit the wishing well in his front yard.

{20} Despite the obviously alarming circumstance of a stranger entering one’s home, we
note that Mr. Ayala apparently did not feel particularly threatened by Defendant. Nor did
Officer Weaver’s account of the information provided by the 911 dispatcher indicate that the
caller had felt that he had been in danger. To the contrary, Mr. Ayala described Defendant
as having seemed scared and immediately retreating from his encounter with Mr. Ayala.
That Defendant did not appear to have posed any threat to “life or limb” of the residents of
1584 15th Avenue casts some doubt on the officers’ testimony that their concern for the
safety of the residents of 1690 14th Avenue rose to the level of concern that would justify
a warrantless entry into that residence. See Ryon, 2005-NMSC-005, ¶¶ 31-32 (explaining
that courts should consider the nature of the dispatch and that the emergency assistance
doctrine requires “a strong perception that action is required to protect against imminent
danger to life or limb” before a warrantless home entry will be justified); cf. State v.
Trudelle, 2007-NMCA-066, ¶ 37, 142 N.M. 18, 162 P.3d 173 (rejecting the officers’ stated
general safety concerns and explaining that, absent “credible and specific information about
possible victims[,]” the officers were not entitled to enter a private residence as community
caretakers).

{21} Nor does it appear from the record that the officers took or considered any additional
or alternative measures to confirm the need for, or to avoid making, an unnecessary
warrantless entry into the residence. See Ryon, 2005-NMSC-005, ¶ 32 (noting that the
question whether officers took additional or alternative measures must be considered in
determining the reasonableness of the entry). Rather, the officers appear to have almost
immediately determined, based on the fact that Defendant’s vehicle was parked on the street
in front of the residence, that a warrantless entry was justified based on their “concern” for
its supposed occupants. In light of the facts actually known to the officers at the time, their
warrantless entry was not justified under the first Ryon factor. See id. ¶¶ 43-44, 46
(concluding that a warrantless home entry was not justified where there was no “obvious
life-threatening emergency” and the officers had only “generalized, nonspecific information
that [the d]efendant might be inside” and explaining that in light of what little they actually
knew, the officers should have taken steps to corroborate their suspicions by, for example,

                                              6
looking in windows, as opposed to “immediately entering the home”).

{22} The second Ryon factor calls for an examination of the subjective intent of the
officers in making the warrantless entry.1 Id. ¶¶ 33, 37. Under this factor, we examine the
“primary motivation” behind the officers’ decision to enter the home. Id. ¶ 36. “The
protection of human life or property in imminent danger must be the motivation for the
initial decision to enter the home rather than the desire to apprehend a suspect or gather
evidence for use in a criminal proceeding.” Id. (emphasis, alterations, internal quotation
marks, and citation omitted). “The ultimate issue is whether officers had a reasonable
concern that an individual’s health would be endangered by a delay, and in fact were
motivated by a need to address that concern.” Id.

{23} In this case, although both of the officers testified that their decision to enter was
motivated by a concern for the safety of the occupants of 1690 14th Avenue, there was no
evidence to support a reasonable subjective belief by the officers that there existed any
imminent danger or that a delay would have exacerbated that danger. Officer Weaver
explained that he was “somewhat concerned” based on Defendant’s having entered 1584
15th Avenue and he “didn’t know what [Defendant’s] intentions were” so he “went up to
[the] house . . . at 1690 14th Avenue, rang the doorbell several times, [and] knocked on the
door to attempt to get somebody to come out.” Officer Weaver did not hear or see anything
inside the house. There was no evidence that anyone saw Defendant enter the residence, and
the officers’ only basis for concluding that Defendant had entered that particular residence
was the fact that his vehicle was parked on the street in front of the house.

{24} On this record, we see little basis for the officers to have formed a subjective belief
that there was even anyone inside the house, and less basis for the officers to have
reasonably believed that delaying entry in order to seek a warrant would have endangered
any individual’s life or health. See id. ¶¶ 36-37. Significantly more is required for police
to enter a private residence without a warrant than an officer being “somewhat concerned”
about the intentions of someone who may have entered the residence. See id. ¶ 35 (“The
emergency assistance doctrine is not applicable . . . unless the entry is motivated by the
perceived need to act immediately in order to save a life.”); see also United States v.


       1
          Since our Supreme Court decided Ryon, the United States Supreme Court in
Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 405 (2006), clearly renounced
consideration of the officers’ subjective motivation in determining whether a warrantless
entry was justified under the emergency assistance doctrine. Accordingly, the test under the
United States Constitution is now two-fold and requires considering “whether (1) the officers
have an objectively reasonable basis to believe there is an immediate need to protect the
lives or safety of themselves or others, and (2) the manner and scope of the search is
reasonable[.]” United States v. Najar, 451 F.3d 710, 718 (10th Cir. 2006). Although we
apply the three-factor Ryon test to the facts of this case, our conclusion would be the same
under the two-factor, federal test.

                                             7
Delgado, 814 F. Supp. 2d 874, 883, 885 (E.D. Wis. 2011) (explaining that, under the
emergency aid doctrine, “[t]he government has no right to enter a private residence on a
mere whim that a person in need of assistance may be inside”). Hence, we do not believe
that the second Ryon factor was satisfied under the circumstances known to the officers as
they were described at trial.

{25} As to the third Ryon factor, whether there was some reasonable basis approximating
probable cause to associate the emergency with the area or the place to be searched, there
is nothing in the record to suggest that the officers had anything other than the location of
Defendant’s vehicle on which to base their assumption that he had entered the 1690 14th
Avenue residence. The mere fact that Defendant’s car was parked on the street in front of
that address provided a tenuous basis for their assumption that Defendant had entered that
particular residence. The location of Defendant’s car, absent any visible or audible indicia
of a disturbance or an emergency is insufficient to justify a warrantless police entry into the
private residence under the emergency assistance doctrine. See Ryon, 2005-NMSC-005, ¶ 42
(explaining that “[t]o justify the warrantless intrusion into a private residence under the
emergency assistance doctrine, officers must have credible and specific information that a
victim is very likely to be located at a particular place and in need of immediate aid to avoid
great bodily harm or death” (emphasis added)).

{26} Having reviewed the facts of this case as applied to the Ryon factors, we conclude
that the record does not support the officers’ warrantless entry based on the emergency
assistance doctrine. We disagree with the district court’s determination that “based on the
information that [the officers] had at the time and based on the totality of the circumstances
. . . their entry into the home was reasonable . . . [based on their concern for] the safety of
any potential occupants of [the] residence[.]” And we conclude, contrary to the district
court’s observations on Defendant’s motion for a new trial based on ineffective assistance
of counsel, that had Defendant’s counsel filed a motion to suppress, the record as it now
stands would support such a motion. Further, we do not believe that a reasonably competent
attorney could have decided that, under these circumstances, a motion to suppress was
unwarranted. See Martinez, 1996-NMCA-109, ¶ 33. We therefore conclude that counsel’s
performance was unreasonable for Sixth Amendment purposes and that Defendant has
satisfied the first prong of the ineffective assistance of counsel test.

Prejudice to Defendant

{27} Having established that counsel’s performance fell below an objective standard of
reasonableness, we must now determine whether Defendant suffered prejudice as a result.
See Strickland, 466 U.S. at 687. In so doing, we must consider whether “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.

{28} As we have already indicated, at least based on the record before us, had Defendant’s
counsel filed a motion to suppress based on an unconstitutional warrantless police entry, we

                                              8
believe such a motion would likely have been successful. Had Defendant’s counsel made
a successful suppression motion, all of the evidence gained as a result of the warrantless
entry, including the results of Defendant’s performance on the field sobriety tests and his
breath alcohol results would have been suppressed. See State v. Lujan, 2008-NMCA-003,
¶ 21, 143 N.M. 233, 175 P.3d 327 (suppressing all evidence gained as a result of an improper
entry into the defendant’s home).

{29} A reasonable probability exists that, if a motion to suppress were successful, the State
would likely be in a considerably less advantageous position for proving its case and that the
outcome at trial would likely have been different. This is sufficient to satisfy the Strickland
prejudice factor. See 466 U.S. at 694 (stating that “[t]he defendant must show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different”); cf. Patterson, 2001-NMSC-013, ¶¶ 30-31 (stating
that in evaluating the evidence to determine whether, upon a successful suppression motion,
the defendant would have gone to trial rather than having pleaded no contest, the court does
not attempt to predict the outcome of the trial). It follows, therefore, that Defendant was
prejudiced by the deficient performance of his trial counsel, who failed to move for
suppression.

CONCLUSION

{30} Having concluded that Defendant has made an affirmative showing under both
aspects of the Strickland test, we hold that Defendant has established a prima facie showing
of ineffective assistance of counsel. Accordingly, we vacate his conviction and remand for
a new trial. Cf. Patterson, 2001-NMSC-013, ¶¶ 33-34 (setting aside the defendant’s no
contest plea, vacating his conviction and sentence, and remanding the case to the district
court based on trial counsel’s deficient performance in failing to move to suppress evidence
where the record supported suppression of key evidence).

{31} We reverse Defendant’s conviction based on ineffective assistance of counsel and
remand to the district court for a new trial.

{32}   IT IS SO ORDERED.

                                               ____________________________________
                                               JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
TIMOTHY L. GARCIA, Judge

                                              9
Topic Index for State v. Crocco, No. 31,498

APPEAL AND ERROR
Prejudicial Error
Remand
Substantial or Sufficient Evidence

ATTORNEYS
Effective Assistance of Counsel

CONSTITUTIONAL LAW
Suppression of Evidence

CRIMINAL LAW
Driving While Intoxicated

CRIMINAL PROCEDURE
Effective Assistance of Counsel
Motion to Suppress
Warrantless Search

EVIDENCE
Blood/Breath Tests
Suppression of Evidence




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