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                                                                  New Mexico Compilation
                                                                Commission, Santa Fe, NM
                                                               '00'05- 09:52:40 2013.03.08

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-032

Filing Date: January 22, 2013

Docket No. 31,179

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

PEBBLES JEAN-PAUL,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Stephen K. Quinn, District Judge

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

for Appellee

Jacqueline L. Cooper, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                         OPINION

WECHSLER, Judge.

{1}     Absent various exceptions, Article II, Section 10 of the New Mexico Constitution
requires officers executing a warrant at a premises to knock and announce their presence and
authority and then wait a reasonable time to permit those inside to voluntarily open the door.
Police executing a search warrant at Defendant Pebbles Jean-Paul’s home knocked and
announced their presence and authority, waited one second, and when they received no
response, forcibly entered her home with a battering ram. They believed that this short wait

                                              1
was authorized by the fact that a man had been standing near the window, looking out in the
direction of the police as they approached the home and had moved away from that position
as the police reached the door. We conclude that the mere one-second wait was not justified
by either the exigent circumstances exception or the futility exception to the knock-and-
announce requirement. Additionally, the one-second wait was simply too short to permit the
occupants either to answer the door or from which to infer that they had refused to
voluntarily admit the police. Accordingly, we reverse the district court’s denial of
Defendant’s motion to suppress.

BACKGROUND

{2}      On September 22, 2009, several officers went to Defendant’s home in order to
execute a search warrant for controlled substances. The officers parked away from the home
and approached it from an inconspicuous direction. As the officers approached, they
observed someone in the residence, later identified as Michael Dickson, approximately three
to five feet from the window, facing out. The officers were approximately eight feet from
the window at that point, but they could not say that Dickson made eye contact with them
or that he actually saw them. Dickson was approximately five to six feet from the front door
of the residence. An officer described Dickson as being “seen” at the window and then “not
seen,” but the officer did not state that Dickson ran or hid, only that the officer no longer saw
him. The officers knocked on the door and announced “Police department; search warrant!”
The officers’ belt tape recorded the fact that approximately four seconds after the officers
began knocking, and approximately one second after the officers completed the phrase
“search warrant,” the officers struck the door with a battering ram. Once inside, the officers
found drugs and drug paraphernalia.

{3}     Defendant was charged with drug trafficking by distribution and possession of drug
paraphernalia. She moved to suppress the evidence obtained during the execution of the
search warrant, arguing that by waiting such a short period before forcibly entering, the
officers did not comply with the constitutional requirement that they knock and announce
their presence and authority and then wait a reasonable time for an answer prior to forcibly
entering the premises and that no exceptions existed that would have permitted the police
to dispense with the requirement. The district court denied the motion, and Defendant
entered into a conditional plea agreement under which she pleaded guilty to the trafficking
charge, reserving her right to appeal the denial of her motion to suppress.

STANDARD OF REVIEW

{4}     Defendant contends that the district court erred by denying her motion to suppress
the evidence obtained during the execution of the warrant. We review the district court’s
suppression ruling to determine “whether the law was correctly applied to the facts, viewing
them in a manner most favorable to the prevailing party.” State v. Hand, 2008-NMSC-014,
¶ 6, 143 N.M. 530, 178 P.3d 165 (internal quotation marks and citation omitted). We defer
to the district court’s factual findings so long as they are supported by substantial evidence.

                                               2
Id. Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” State v. Gonzales, 2010-NMCA-023, ¶ 4, 147 N.M. 735,
228 P.3d 519 (alterations, internal quotation marks, and citation omitted). After deferring
to the district court’s factual findings, we review de novo the constitutional question of
whether the search was reasonable. Id. In the district court, it was the State’s burden to
demonstrate the reasonableness of the execution of the search warrant. State v. Ulibarri,
2010-NMCA-084, ¶ 12, 148 N.M. 576, 240 P.3d 1050, cert. denied, 2010-NMCERT-008,
148 N.M. 942, 242 P.3d 1288.

INTERSTITIAL APPROACH

{5}      Defendant’s motion was brought pursuant to both the federal and state constitutions
and, on appeal, her arguments rely on both the Fourth Amendment to the United States
Constitution and Article II, Section 10 of the New Mexico Constitution. Article II, Section
10 provides that “[t]he people shall be secure in their persons, papers, homes and effects,
from unreasonable searches and seizures” and is an analogue of the Fourth Amendment.
“While the federal constitution provides a minimum level of protection below which the
states may not descend, states remain free to provide greater protection.” State v. Javier M.,
2001-NMSC-030, ¶ 24, 131 N.M. 1, 33 P.3d 1 (alteration, internal quotation marks, and
citation omitted)). Under New Mexico’s interstitial approach to state constitutional
interpretation, this Court should only reach the state constitutional question if the federal
constitution does not provide the protection sought by the party raising the issue. See State
v. Gomez, 1997-NMSC-006, ¶¶ 19-20, 122 N.M. 777, 932 P.2d 1. When applying the
interstitial approach, “the court asks first whether the right being asserted is protected under
the federal constitution.” Id. ¶ 19. “If it is, then the state constitutional claim is not
reached.” Id. “If it is not, then the state constitution is examined.” Id. We must therefore
decide whether the federal constitution would offer Defendant any protection in this case
prior to reaching her claim under the state constitution.

{6}     In the absence of certain exceptions, the Fourth Amendment requires police who are
executing a warrant to announce their presence and authority and to wait a reasonable time
for an occupant to answer before entering the premises. Wilson v. Arkansas, 514 U.S. 927,
931-36 (1995). This rule, commonly called the knock-and-announce rule, is also a
requirement of Article II, Section 10 of the New Mexico Constitution. State v. Attaway, 117
N.M. 141, 149-50, 870 P.2d 103, 111-12 (1994). But while both the federal and state
constitutions include the knock-and-announce requirement, the remedies for a violation
under the two constitutions are not the same. In Hudson v. Michigan, 547 U.S. 586, 591-94
(2006), the Supreme Court held that if the police fail to adhere to the knock-and-announce
rule, the Fourth Amendment does not require suppression of any evidence obtained during
the search as a remedy for the violation. Hudson reasoned that “but for” causation is a
necessary condition for suppression and that a violation of the knock-and-announce rule does
not cause the discovery of evidence, since regardless of the manner of the officers’ entry, the
evidence would inevitably be discovered during the subsequent search, and the search itself
would be valid pursuant to the warrant. Id. at 592. Hudson also determined that the

                                               3
beneficial effects of exclusion are outweighed by its social costs when it comes to knock-
and-announce violations because of the potential for increased violence against officers who
might be hesitant to enter unannounced if they believed that evidence might be suppressed
and the potential for the destruction of evidence by those inside the residence. Id. at 595.

{7}     In contrast, Attaway states that suppression is the appropriate remedy under Article
II, Section 10 of the New Mexico Constitution for the failure to follow the knock-and-
announce rule. Attaway, 117 N.M. at 150 n.6, 870 P.2d at 112 n.6. Attaway was decided
prior to Hudson and did not appear to consider the policy considerations addressed in
Hudson in support of the conclusion that suppression is not an appropriate remedy. Our
Supreme Court has not had the occasion since Hudson to reconsider Attaway or the
application of the exclusionary rule for knock-and-announce violations under the state
constitution. See Hand, 2008-NMSC-014, ¶ 5 n.2 (stating that “[b]ecause neither party
briefed the effect of Hudson on New Mexico’s knock-and-announce jurisprudence and
because we conclude that the district court erroneously suppressed the evidence, we leave
the question of Hudson’s effect to be decided another day”). Therefore, Attaway controls,
and the remedy for any violation of Article II, Section 10’s knock-and-announce requirement
continues to be suppression of the evidence.

{8}     Although Gomez’s discussion of the interstitial analysis applied to the interpretation
of the rights afforded under the federal and state constitutions, as opposed to the remedies,
we believe its analysis is equally applicable to instances such as this one, in which, even if
the rights provided under the two constitutions were the same, the remedy for a violation of
those rights can be different. See Gomez, 1997-NMSC-006, ¶ 20 (citing as an example of
the interstitial approach State v. Gutierrez, 116 N.M. 431, 446-47, 863 P.2d 1052, 1067-68
(1993), which declined to incorporate the federal good-faith exception to the exclusionary
rule into the state constitution because refusing to apply the remedy of the exclusionary rule
would undermine the purpose of the state constitutional protection against unreasonable
searches and seizures). Because any violation of Defendant’s rights under the United States
Constitution would not provide her with a remedy in this proceeding, we need not decide
whether the police conduct violated Defendant’s Fourth Amendment rights. See Gomez,
1997-NMSC-006, ¶¶ 19-20. Therefore, we assess Defendant’s claim only in light of the
protections provided by Article II, Section 10 of the state constitution.

KNOCK AND ANNOUNCE UNDER ARTICLE II, SECTION 10

{9}     In New Mexico, “[l]aw enforcement officers executing a search or arrest warrant are
constitutionally required to knock and announce their identity and purpose and then wait a
reasonable time to determine if consent to enter will be given, prior to forcefully entering a
dwelling.” Gonzales, 2010-NMCA-023, ¶ 5. The rule “requires that officers make known
not only their presence, but also their authority under the warrant that they are serving.”
State v. Vargas, 2008-NMSC-019, ¶ 18, 143 N.M. 692, 181 P.3d 684. By requiring the
police to announce the fact that they have a warrant and then give the occupants time to
voluntarily answer the door, the knock-and-announce rule protects “those elements of

                                              4
privacy and dignity that can be destroyed by a sudden entrance” and gives “occupants the
time necessary to collect themselves and to prepare for the entry of the police before
answering the door.” Id. ¶ 15 (internal quotation marks and citation omitted). The rule
serves a number of additional purposes, including preventing the needless destruction of
property, reducing the risk of violence to both occupants and police, and permitting an
opportunity for the occupants to comply with the law. Ulibarri, 2010-NMCA-084, ¶ 10.

{10} Courts have carved out various exceptions to the rule, and of these, two that are
relevant here are that police need not comply with the knock-and-announce requirement in
situations in which knocking and announcing the officers’ presence and authority would be
futile in that it would amount to nothing more than a useless gesture, see Vargas,
2008-NMSC-019, ¶ 11, and when there are exigent circumstances militating against such an
announcement. See also Ulibarri, 2010-NMCA-084, ¶ 13. The futility exception applies
when it is clear that the authority and purpose of the police are already known to those
within the premises, such that knocking and announcing that the police intend to execute a
warrant would serve no purpose. See Vargas, 2008-NMSC-019, ¶¶ 3, 17 (holding that the
futility exception applied when the occupant of a home opened the door, saw the police,
exclaimed “Oh, shit!,” and attempted to close the door). Exigent circumstances include
situations involving, among other things, “a demonstrable risk that evidence will be
destroyed while the officers wait to be denied entry, or specific information . . . indicating
that the danger to the officers executing the warrant will be increased, rather than decreased,
if the officers comply with the rule.” State v. Vargas, 1996-NMCA-016, ¶ 5, 121 N.M. 316,
910 P.2d 950.

{11} To determine whether an exception applies, a court must look to the totality of the
circumstances “at the time of entry from the point of view of a reasonable, well-trained, and
prudent police officer” to decide whether the officer had a reasonable belief that there were
exigent circumstances or that knocking and announcing would be futile. Vargas, 2008-
NMSC-019, ¶ 12. The reasonableness of an officer’s belief is measured under a reasonable
suspicion standard, “which is not high” but which “requires specific, articulable facts,
together with reasonable inferences therefrom, as a basis for concluding that the facts and
circumstances of the particular entry justified dispensing with the knock-and-announce
requirement.” Id. (alteration, internal quotation marks, and citation omitted).

FUTILITY AND EXIGENT CIRCUMSTANCES

{12} The district court determined that the knock-and-announce requirement was excused
because of both the futility and exigent circumstances exceptions. The basis of the district
court’s conclusion that the officers were not required to knock and announce their presence
was that it was highly probable that Dickson had seen the officers approaching the house
such that it would have been “futile to require a prolonged delay which could result in
disposing of evidence.” At the suppression hearing, an officer testified that it is standard
operating procedure for police to expedite the process of entering a home when they have
been seen by someone inside due to the possibility that the home’s occupants could destroy

                                              5
evidence or get a weapon. But the mere fact that officers have been observed by a home’s
occupants does not relieve them of the knock-and-announce requirement. See State v.
Williams, 114 N.M. 485, 487-89, 840 P.2d 1251, 1253-55 (Ct. App. 1992) (applying the
knock-and-announce rule despite the fact that the occupants of a home made eye contact
with members of a SWAT team as they approached the house); cf. State v. Reynaga,
2000-NMCA-053, ¶ 12, 129 N.M. 257, 5 P.3d 579 (stating that “[w]e disagree with the
[s]tate’s argument that the knock-and-announce requirement serves no purpose once
someone inside a . . . home is alerted to the presence of police” and holding that the knock-
and-announce requirement applies even when the door has already been opened due to a ruse
by police). Such a rule would require every person—whether guest or resident—who sees
officers approaching a home to immediately go to the door and open it in order to avoid a
forcible entry. People are not generally required to throw open their door to the police, and
it is the announcement of the fact that the police have authority to enter pursuant to a warrant
that alerts a person that it is lawful for the police to enter a premises regardless of the
occupants’ wishes. See Commonweath v. Carlton, 701 A.2d 143, 147 (Pa. 1997) (“[T]here
is no requirement that anyone open the door to their dwelling in the absence of police
statement of their authority and purpose. In a free society, the mere presence of police does
not require an individual to throw open the doors to his house and cower submissively before
the uniformed authority of the state.”). Until the police announce that they have a warrant,
the occupants have no reason to believe that the police may forcibly enter and thus no reason
to believe that they must answer the door if they wish to avoid a forcible breach.

{13} Relying on Vargas, 2008-NMSC-019, the State contends that our Supreme Court has
dispensed with the knock-and-announce requirement when the presence of officers is known.
However, Vargas is not on point. Vargas held that knocking and announcing would have
been futile when the defendant happened to open the door just as the officers reached it, saw
the officers, said “Oh shit!,” and attempted to close the door—all before the officers were
able to knock and announce. Id. ¶¶ 3-4, 17. In Vargas, a reasonable officer could have
concluded that the defendant knew that the officers were there for some type of investigation
involving him or the house since the defendant uttered an exclamation that suggested an
awareness and dissatisfaction with having been caught doing something illegal. The
defendant then affirmatively engaged in conduct that sought to prevent the officers from
entering when he attempted to shut the door, thereby indicating that he likely would not
voluntarily open the door if the officers were to then knock and announce their presence and
authority. Vargas simply holds that the futility exception applies under circumstances in
which it is reasonable to believe that the occupant of a home knows the identity of the
officers and their purpose for being at the premises and nevertheless affirmatively refuses
to permit the officers to enter.

{14} Vargas is consistent with authorities from other jurisdictions that hold that an
affirmative act by an occupant of a premises demonstrating refusal to admit police or an
attempt to escape after becoming aware of their identity and purpose renders futile any
further efforts by the police to knock and announce. See, e.g., United States v. Peterson, 353
F.3d 1045, 1049 (9th Cir. 2003) (holding that the futility exception applied when, just as a

                                               6
SWAT team was about to announce its presence, the defendant opened the door, saw the
SWAT team, and attempted to deny them entry); United States v. McGee, 280 F.3d 803, 806-
07 (7th Cir. 2002) (holding that the “useless gesture” exception applied when the occupant
of a home had run out of the back door as the police began to knock and announce). Vargas
does not abrogate Williams or otherwise sweepingly dispense with the knock-and-announce
requirement any time an occupant of a premises knows that the police are outside.

{15} The State relies on two other cases involving affirmative acts of refusal for the
proposition that other courts have found that knocking and announcing is not required when
the occupants of a premises have seen the police outside. In Richards v. Wisconsin, 520 U.S.
385, 388 (1997), an officer disguised as a maintenance man knocked on the defendant’s
motel room door. The defendant cracked open the door, saw a uniformed officer standing
behind the disguised officer, and slammed the door closed. Id. The officers then waited two
or three seconds and, without announcing that they were there under the authority of a
warrant, began ramming the door in order to gain entry into the room. Id. In State v.
Ochadleus, 2005 MT 88, ¶ 12, 326 Mont. 441,110 P.3d 448, officers executing a warrant at
a residence made eye contact with a man inside. They announced that they were police and
that they had a search warrant, and they ordered the man to open the door. Id. The man first
walked toward the door as if to open it, but when the officers again called out that they were
the police, the man began backing away. Id. As soon as the man backed away, the police
used a battering ram to enter the residence. Id. Although we need not decide whether the
particular facts of Richards or Ochadleus would support an exception to the knock-and-
announce rule under the New Mexico Constitution, both Richards and Ochadleus are
consistent with the principle that some affirmative act by an occupant demonstrating a
refusal to admit the police after their presence and purpose are known renders unnecessary
any further act of knocking and announcing. These cases do not support the proposition that
officers need not knock and announce their presence and authority and then wait a
reasonable time to permit the occupants to respond any time an occupant has merely viewed
the officers approaching from outside the area to be searched.

{16} The State also relies on the unreported federal district court decision of United States
v. Shaw, No. XX-XXXXXXX/03-SAC, 2002 WL 31926894 (D. Kan. Nov. 22, 2002), modified
on rehearing Nos. 02-40081-01-SAC, 02-40081-03-SAC, 2003 WL 356066 (D. Kan. Jan.
23, 2003). In that case, an officer in plain clothes knocked on the door of the residence to
be searched, hoping that the occupants would answer voluntarily, without knowing that the
person knocking was a police officer. Id. at *1. If the occupants did so, several uniformed
officers were to announce that they were police with a search warrant and then enter the
residence. Id. However, as the first officer approached the door, he realized that it was open
and that there was a woman standing approximately two feet from him on the other side of
the doorway. Id. She turned and looked at him, making eye contact. Id. The plain-clothed
officer opened the door without knocking and announcing. Id. Approximately one second
later, the uniformed officers following behind him announced that they were the police and
that they had a warrant and then entered. Id. The federal district court for the district of
Kansas upheld the search under the futility exception, finding that due to the position of the

                                              7
uniformed officers behind the first officer, it was reasonable for the officers to conclude that
the woman had seen the uniformed officers and that she knew that they were there by
authority of a warrant. Id. at *3.

{17} We are not persuaded by Shaw’s reasoning. The fact that a person has observed
police outside the door of a home does not, in the absence of other evidence, lead to a
reasonable belief that the person knows that the police have a warrant that permits them to
enter. Moreover, the State fails to point out that Shaw was later modified on rehearing for
this very reason: On rehearing, the district court stated that “[e]ven if [the woman in the
doorway] recognized [the first officer] or the officer beside him on the porch as police
officers, her recognition would not have justified their reasonable belief that she actually
knew of the reason for their presence.” Id. For its conclusion that it was not reasonable to
believe that the woman would have known that the police were there to execute a search
warrant, the court relied on the facts that the woman was not arrested for any crimes related
to the evidence discovered at the house and that she was not shown to have any knowledge
of the events that caused the warrant to be issued. Id. However, this inquiry seems to look
to information that the police would not necessarily have at the time of the entry, such as
whether the woman who the officers saw in the doorway would be arrested during the search
and whether she was someone who had any involvement with the illegal activity. See
Vargas, 2008-NMSC-019, ¶ 12 (stating that the reasonableness inquiry looks at the
information known to officers at the time of entry). Unless the police have information at
the time of the entry that leads to a reasonable belief that the person who has observed them
knows both that they are officers and that they have authority to enter pursuant to a warrant,
the futility exception does not apply. The fact that someone has simply seen the police does
not generally provide a factual basis for a reasonable suspicion that the occupant knows that
the officers have authority to enter pursuant to a warrant. See 2 Wayne R. LaFave, Search
and Seizure: A Treatise on the Fourth Amendment § 4.8(f), at 693 (4th ed. 2004 & Supp.
2011) (stating that “there is no good reason for concluding, as some courts have done, that
the occupants are aware of the authority and purpose merely because the police knew that
someone within had seen them approaching or that someone outside had shouted something
into the premises”). Shaw does not support the State’s claim.

{18} The State also contends that the futility exception applies because Dickson knew of
the police officers’ presence. Again, however, it is not sufficient that occupants know of the
police’s presence; they must also know of the police’s purpose and authority for being there.
We recognize that in this case the officers could have reasonably believed that what Dickson
saw when he was facing the direction of the window was six uniformed officers carrying a
battering ram and approaching the house. While these facts might come closer to providing
a reasonable suspicion that Dickson knew that the officers were there to execute a warrant
than those cases in which the occupant of a home simply sees an officer outside of the door,
we nevertheless conclude that these facts do not support a reasonable suspicion that Dickson
knew that the officers were there to search the home pursuant to a warrant. This is not a case
in which occupants of a home engaged in any conduct evincing a consciousness of guilt or
some other action that would demonstrate that they knew why the police were there.

                                               8
{19} Furthermore, even if these facts did give rise to such a reasonable suspicion, we
would nevertheless conclude that the futility exception does not apply. New Mexico has
only applied the exception when there has been an affirmative act of refusal by an occupant
of the premises because such action more clearly demonstrates that an occupant does not
intend to voluntarily permit the police to enter than does a mere brief period of inaction. See
Vargas, 2008-NMSC-019, ¶ 14. Other courts have also primarily applied the exception
when there has been some affirmative act of refusal or other effort to avoid the execution of
the warrant. See, e.g., McGee, 280 F.3d at 806-07 (stating that “[i]n general, the ‘useless
gesture’ exception to the ‘knock[-]and[-]announce’ rule is applied when a suspect
affirmatively refuses to answer his door to allow the government to serve a valid search
warrant” but that it will also apply if someone is seen to have fled the premises); United
States v. James, 764 F.2d 885, 888 (D.C. Cir. 1985) (holding that the futility exception
excused the officers’ failure to announce that they had a search warrant when, after knocking
and calling out that they were the police, the officers heard the defendant running down the
back stairs); People v. Williams, 499 N.W.2d 404, 408-09 (Mich. Ct. App. 1993) (upholding
an almost instantaneous forcible entry after officers saw someone watching them as they
approached the residence and then saw people running toward the back of the house as the
police announced their presence and authority). Dickson’s act of being “seen” and then “not
seen” is too ambiguous to constitute an act, such as fleeing, that would indicate that he was
aware that the police were there to execute a warrant and that he sought to thwart that intent
in some way. We are not persuaded that the application of the futility exception any time
an occupant presumably has seen the police properly supports the purposes of the knock-
and-announce rule because it does not account for the fact that until the occupants are
informed that the officers are there to execute a warrant, they have no reason to believe that
they are required to answer the door, speak with officers, or permit the officers to enter.
Applying the exception under these circumstances would undermine two of the primary
purposes of the knock-and-announce rule: to prevent the needless destruction of property
and to protect the sanctity and privacy of the home.

{20} Because there was no evidence presented that demonstrated that the occupants of
Defendant’s home were already aware of the police’s purpose in coming to Defendant’s
home and there was no evidence from which the officers could reasonably conclude that the
occupants would have sought to thwart or avoid the police’s lawful entry to search, the
futility exception did not excuse the knock-and-announce requirement.

{21} The fact that Dickson was in a position from which the police could reasonably
suspect that he had seen them also did not create the kind of exigent circumstances that
would excuse the knock-and-announce requirement based on a suspicion that evidence
would be destroyed. Although many drug investigations arguably involve the possibility of
the destruction of evidence, the United States Supreme Court has refused to permit a blanket
exception to the knock-and-announce rule for cases involving illegal drugs. See Richards,
520 U.S. at 391-94. The mere possibility that an occupant might destroy evidence does not
give rise to an exigency. Ortega, 117 N.M. at 162, 870 P.2d at 124. Instead, circumstances
must be such that a cautious, prudent, and well-trained officer would have a “reasonable

                                              9
belief that evidence is being or is about to be destroyed.” Id.

{22} A number of the New Mexico cases concluding that exigent circumstances excused
the knock-and-announce rule when a warrant was for drugs rely on the possibility of an
increased danger to officers. See, e.g., State v. Lopez, 2005-NMSC-018, ¶ 25, 138 N.M. 9,
116 P.3d 80 (upholding a finding of exigent circumstances based on a reasonable suspicion
of increased danger to officers when the officers had information that there were two to four
people in the residence with access to multiple firearms including automatic weapons and
that one of the residents was a drug dealer); Vargas, 1996-NMCA-016, ¶¶ 9, 13 (upholding
a finding of exigent circumstances based on a reasonable suspicion of increased danger to
officers when the officers had information that the defendants were involved in dealing
drugs, that both were gang members and carried weapons, that one of the defendants had
threatened police, and that during numerous police dispatches to the defendants’ residence
over the prior ten years, the defendants and other residents had a propensity to behave
violently and to challenge the police); Attaway, 117 N.M. at 153, 870 P.2d at 115 (upholding
a finding of exigent circumstances based on a reasonable suspicion of increased danger to
officers when the officers had information that the defendant was a drug user and dealer, that
he had previously been convicted of weapons and drug charges, that he possessed a large
arsenal of weapons, including an automatic weapon and a number of other guns, and he in
the past had threatened police officers); cf. Williams, 114 N.M. at 488-89, 840 P.2d at 1254-
55 (affirming the district court’s finding of no exigent circumstances based on increased
danger to officers because although the officers believed that the occupants were drug
dealers and that drug dealers are generally armed, “there was no evidence at the time of
execution of the search warrant indicating that anyone threatened the officers or that they
were placed in fear by persons either inside or outside the residence”). In this case, however,
the district court did not find that the officers had a reasonable suspicion that there would be
an increased danger to officers if they announced their presence and purpose, and, although
the State preserved the argument in the district court, it does not put forth an argument on
appeal that the district court’s ruling could be affirmed on this basis. Accordingly, we do
not consider whether the officers had a reasonable suspicion of increased danger and look
only to whether there was reasonable suspicion that the occupants of Defendant’s home
would destroy evidence. See In re Doe, 98 N.M. 540, 541, 650 P.2d 824, 825 (1982) (stating
that an appellate court should not reach issues that the parties have not raised in their briefs).

{23} We have found only two New Mexico cases holding that exigent circumstances
excused the knock-and-announce requirement based wholly on a destruction-of-evidence
rationale. The most recent is Ortega. There, an officer received information that the
defendant was supplying heroin to a man with whom he lived and that the man was selling
the heroin to others. Ortega, 117 N.M. at 161, 870 P.2d at 123. The informant told officers
that the defendant and his housemate would destroy the evidence if they knew that the police
were coming. Id. The officer verified this information through other informants. Id. at 161-
62, 870 P.2d at 123-24. When the officer went to execute the warrant, some children outside
the home started yelling “Cops! Cops!” Id. at 162, 870 P.2d at 124. One child ran into the
house, and the officer followed, without stopping to announce his presence or the fact that

                                               10
he was there to execute a search warrant. Id. In upholding the validity of the entry, the New
Mexico Supreme Court “place[d] little stock in [the officer’s] fourteen years of experience
and general knowledge regarding the destruction of narcotics.” Id. at 163, 870 P.2d at 125.
Instead, the Court relied on the fact that “it was objectively reasonable for [the officer] to
believe evidence would be destroyed because he had information to that effect from three
different informants who had been in contact with [the defendant] to support that belief.”
Id. Therefore, once the children alerted the occupants of the home to the presence of the
police, the police were justified in entering immediately in order to prevent the destruction
of evidence. Id.

{24} In State v. Sanchez, 88 N.M. 402, 404, 540 P.2d 1291, 1293 (1975), overruled in part
on other grounds by Attaway, 117 N.M. 141, 870 P.2d 103, the district court found that the
officers reasonably believed that drugs would be destroyed because an informant had
specifically told the officers that the occupants of the home would flush the heroin down the
toilet if the officers did not move quickly, and, as the officers approached the home, people
inside were moving around and yelling as if they might have been alerted to the presence of
the police and were attempting to take action in response.

{25} In this case, in contrast to Ortega and Sanchez, there was no testimony regarding any
specific evidence that police had for believing that evidence was being or would be
destroyed. Any suspicion the police might have had about the possibility that evidence
would be destroyed was not based on information about Defendant or her home and instead
would have been based solely on the officers’ general experience. Such a generalized
suspicion would arise in every case involving drugs—a result that is not permitted by
Richards and Ortega. See State v. Cohen, 957 P.2d 1014, 1016 (Ariz. Ct. App. 1998)
(holding that the exigent circumstances exception did not apply when officers executing a
warrant for drugs made eye contact with occupants of a home, and entered approximately
one second after knocking and announcing, since there was no reasonable suspicion that a
longer wait would have increased the danger to officers or resulted in the destruction of
evidence; any suspicions the officers had were not based on the particular facts of the case).


{26} The State argues that the fact that Dickson was seen by the police in the window and
then not seen provides a reasonable suspicion that either he or Defendant was destroying
evidence. Although the record is somewhat ambiguous as to when Dickson was seen and
not seen, if his movement away from the window occurred prior to the officers’
announcement of their presence and purpose, we cannot reasonably conclude that the fact
that someone moves about a residence knowing that the police are outside, but not knowing
that they are there to execute a warrant, gives rise to the inference that he is destroying
evidence. See Syakhasone v. State, 39 S.W.3d 5, 10-11 (Ark. Ct. App. 2001) (holding that
there were no exigent circumstances excusing the knock-and-announce requirement when,
as the officers approached the house to execute a warrant for drugs, the officers saw
someone open a curtain, look in the officers’ direction, and then pull the curtain back; any
concerns about safety and the destruction of drugs were not based on anything particular to

                                             11
the defendant’s case). Furthermore, to the degree that Dickson moved away from the
window at the same time that the officers knocked and announced, his mere movement
within the home does not give rise to a reasonable suspicion that he was destroying evidence.
See Commonwealth v. DeMichel, 277 A.2d 159, 164 (Pa. 1971) (holding that there were no
exigent circumstances excusing the knock-and-announce requirement when officers who
went to a house to execute a warrant for illegal lottery tickets that could be readily destroyed
announced their presence to someone peering through the blinds, and the person then
dropped the blinds and did not open the door after a period of between five and twenty
seconds; the officers’ concern about the destruction of the lottery tickets was based on the
fact that they could easily be destroyed, not on any particular facts demonstrating that they
would be). This is not a case in which the officers saw Dickson running or taking other
action that would suggest a frantic response to the presence of the police and that would
therefore provide a reasonable suspicion that evidence was being destroyed. Cf. Laffitte v.
State, 370 So. 2d 1108, 1108-10 (Ala. Crim. App. 1979) (upholding an almost immediate
entry after police announced their presence and authority because, as they came to the door,
police saw three people in the living room, one of whom grabbed some marijuana that had
been lying there, and the three ran toward the back of the house); State v. Kofoed, 208 P.3d
278, 279-81 (Idaho 2009) (finding exigent circumstances based on the possible destruction
of evidence when, as the police knocked and announced their presence and authority, they
heard someone drop or kick something and then footsteps moving rapidly away from the
door); State v. Kelley, 658 N.W.2d 279, 284, 289 (Neb. 2003) (finding exigent circumstances
in part based on the possible destruction of evidence when, after a woman looked out of the
window at the police as they knocked and announced, she looked “surprised” and left in a
manner that appeared to be running, and then “a loud commotion” was heard inside).
Because the State failed to demonstrate that the officers had a particularized reasonable
suspicion that someone in Defendant’s home was destroying evidence after Dickson saw the
police, it was error to apply the exigent circumstances exception to the knock-and-announce
requirement.

REASONABLENESS OF KNOCK AND ANNOUNCE

{27} Although there was no exception excusing the knock-and-announce requirement
altogether, the police in this case did in fact announce their presence and purpose prior to
forcibly breaching the door. Therefore, the State contends that this Court can affirm the
district court under a right-for-any-reason rationale because the officers complied with the
constitutional rule. See Gallegos, 2007-NMSC-007, ¶ 26 (“[W]e will affirm the [district]
court’s decision if it was right for any reason so long as it is not unfair to the appellant for
us to do so.”). The State asserts that the brief time between the announcement of the
officers’ presence and purpose and the forcible breach of the door was reasonable because
the officers were constructively refused admittance.

{28} In order to comply with the knock-and-announce rule, police must announce their
presence and purpose and receive an actual refusal from those inside or wait out the time
necessary to infer a constructive refusal prior to forcibly entering. Lopez, 2005-NMSC-018,

                                              12
¶ 27. The time that officers must reasonably wait before inferring that the occupants have
refused to answer the door is not fixed and instead depends on the totality of the
circumstances. See Hand, 2008-NMSC-014, ¶ 7. Relevant circumstances include the size
of the premises that the occupants would have to traverse in order to come to the door; the
time of day, which might impact whether occupants were likely to be asleep or awake and
whether they might need to dress; and whether the police know that an occupant is inside,
such that if they hear no sound at all or sounds that suggest that the occupant does not intend
to answer, it is more likely to mean that the occupant is refusing to admit the police. See id.
¶¶ 8-9.

{29} Even when, as here, a residence is small, New Mexico courts have approved waits
only as short as ten seconds in the absence of exigent circumstances. See id. ¶¶ 9, 11
(holding that a ten-to-twenty-second wait was sufficient to support an inference that
admission was being denied based on the fact that “a small space” was involved, the police
heard movement inside, and the defendant made no verbal response); State v. Johnson, 2006-
NMSC-049, ¶¶ 12-17, 140 N.M. 653, 146 P.3d 298 (holding that a ten-second wait was
reasonable to infer constructive refusal based on the small size of the hotel room and the fact
that the defendant did not respond in any way); see also Gonzales, 2010-NMCA-023, ¶¶ 3,
16 (holding that an eight-second wait was too short a time to infer constructive refusal); cf.
Lopez, 2005-NMSC-018, ¶¶ 3, 19 (holding that a three-second wait was reasonable because
the exigent circumstances exception applied). The ten-second wait found in some of New
Mexico’s cases is a very short time in which to expect one to gather oneself and come to the
door, but it has been justified based on the particular circumstances of those cases. As one
commentator has noted regarding the question of how long officers must wait for an
occupant to answer before inferring constructive refusal,

       it has understandably been held that a wait of two to four seconds is
       inadequate. Generally, however, it may be said that courts have been unduly
       lenient on this score, holding that the police may proceed to enter after
       waiting no longer than ten or twenty seconds. . . . More understandable is the
       view that such brief periods will suffice when a reasonable inference may be
       drawn that the inhabitants of the house had observed the arrival of the police
       and were well aware of the officers’ authority and purpose[.]

2 LaFave, supra, § 4.8(c), at 673-76 (internal quotation marks and citation omitted). This
case requires us to determine whether the brief wait in this case was reasonable when
officers could reasonably conclude that Dickson was aware of their presence as they
approached the house and then of their purpose and authority once they knocked and
announced that they had a warrant.

{30} The parties disagree about the length of time that the officers waited before they
forcibly entered Defendant’s home. The district court found, based on a review of an
officer’s belt tape, that there were approximately three-and-a-half seconds before the door
was breached. However, the district court did not indicate the starting point for its

                                              13
count—whether it was when the officers started knocking or when they completed their
statement that they had a search warrant. This lack of clarity is important because the
appropriate starting point is from the time that the first announcement of the police’s
presence and purpose has been completed. See Johnson, 2006-NMSC-049, ¶ 11 (stating that
the appropriate time to be measured is the time “after knocking and announcing and before
forcing entry” (emphasis added)); but see id. (quoting a Tenth Circuit case for the
proposition that the time begins when officers “begin to announce” their presence). The time
period cannot begin when the police start to knock or when they announce that they are the
police, because until the occupants are notified that the police are there to execute a search
warrant, they have no reason to believe that they are required to either open the door or
suffer a forcible entry. The State argues that this Court can review the belt tape and draw
its own conclusion about the length of time that the officers waited since we may review the
district court’s findings to see if they are supported by substantial evidence in the record and
since this Court is in as good a position to measure the time on the belt tape as the district
court. However, we do not see this issue as a question of whether the district court’s finding
was correct but as a question of whether its measurement began at the appropriate time. This
is a question of law on which we need not defer to the district court. See State v. Williams,
2011-NMSC-026, ¶ 8, 149 N.M. 729, 255 P.3d 307 (stating that an appellate court reviews
de novo the district court’s legal conclusions on a motion to suppress). The district court did
not cite a starting point for its count. We conclude that the appropriate starting point was
when officers completed their announcement, “Police department; search warrant.” See
Johnson, 2006-NMSC-049, ¶¶ 11-12 (measuring the time after the initial announcement was
made and before the forcible entry began). The appropriate ending point is when the officers
began to hit the door with the battering ram. See id. ¶ 11 (“When the officers began hitting
the door with the battering ram, they ceased ‘knocking’ and began ‘entering.’”). A review
of the belt tape demonstrates that it was approximately one second after the officers
completed the phrase “search warrant,” that the officers struck the door with a battering ram.
However, even if we were to calculate the time as three-and-a-half seconds, as did the
district court, or as five seconds, as urged by the State, the calculation would not affect our
analysis because any of these times is shorter than the time periods recognized as reasonable
under our case law. Further, there is nothing within these particular circumstances that
justifies a period shorter than has thus far been recognized as proper in our jurisprudence.

{31} Although the district court found that it was reasonable for the police to believe that
Dickson saw them outside the residence, one second is simply too short a period of time to
give the “occupants the time necessary to collect themselves and to prepare for the entry of
the police before answering the door.” Vargas, 2008-NMSC-019, ¶ 15; see also Syakhasone,
39 S.W.3d at 10-11 (holding that a two-to-five-second wait was too short, even when, as the
officers approached the house to execute a warrant for drugs, the officers saw someone open
a curtain, look in the officers’ direction, and then pull the curtain back); West v. United
States, 710 A.2d 866, 867-69 (D.C. 1998) (holding that a five-second wait was too short
when, after police executing a warrant for drugs knocked and announced, they heard the
video game that had been being played stop and heard the sound of footsteps in the house
that were not coming to the door; these facts were ambiguous, since a person could stop

                                              14
playing a video game in order to either exclude or admit the police, and even the most
cooperative occupant might make the sound of footsteps in order to “fetch his bathrobe or
slippers before coming to the door”); DeMichel, 277 A.2d at 164 (holding that a five-to-
fifteen-second wait was too short when, after police executing a warrant for drugs announced
their presence to someone who was looking at them through the blinds, the blinds were
dropped); see also Wynne v. Commonwealth, 427 S.E.2d 228, 229-31 (Va. Ct. App. 1993)
(holding that a five-second wait was not reasonable when the officers could see the
occupants of the home inside, who were making no move to answer the door). It is therefore
also too short a period from which to infer constructive refusal to voluntarily open the door.
See Hand, 2008-NMSC-014, ¶ 7 (stating that constructive refusal may only be inferred if the
occupants do not admit the officers within a reasonable period of time). Accordingly, under
these circumstances, a one, three-and-a-half, or five second period of time cannot constitute
a constructive refusal on the part of the home’s occupants.

{32} We recognize that, under the Fourth Amendment to the United States Constitution,
when there are circumstances not amounting to an actual exigency but that raise the same
types of concerns—such as the possibility of the destruction of evidence or the possibility
that the occupants may have weapons—a court may properly take into account these
concerns in assessing the reasonableness of the time that the police are required to wait.
Under the Fourth Amendment, when the possibility of exigent circumstances exists but does
not excuse the knock-and-announce rule altogether, the reasonableness assessment is based
not on the time it would take for a person to collect oneself and answer the door, but on the
time that it might take to do the harm sought to be prevented by the exception. See Hudson,
547 U.S. at 590 (citing United States v. Banks, 540 U.S. 31, 41 (2003), as an example in
which the exigent circumstances exception did not excuse the knock-and-announce
requirement, but the possibility of the destruction of drugs permitted the police to wait only
the period that it might take for a person to attempt to destroy drugs, rather than a reasonable
period for the person to answer the door or constructively refuse). This approach has been
criticized because, although the Supreme Court has rejected a blanket exigent circumstances
exception for drug cases, it seems to have substituted a blanket rule allowing for an
extremely short wait once officers have knocked and announced their presence and authority.
See 2 LaFave, supra, § 4.8(c), at 678 (“The major difficulty with the Banks Court’s
exigencies analysis is this: while the Court claimed to have embraced the ‘same criteria’ as
are used for no-knock searches and to have mandated a ‘totality of the circumstances’
approach, all of which would seem to mean that Richards[, 520 U.S. at 391-94] (proscribing
use of a blanket rule whereby a risk of evidence destruction is assumed in all narcotics cases)
also applies here, there seem to be no case-specific particularities involved in the Court’s
assessment of the risk that [the defendant] would destroy the cocaine.”). Regardless, the
Fourth Amendment rule that the appropriate measure of time in cases involving drugs is the
time it would take the occupants to begin destroying them, rather than the time it would take
them for the occupants to come to the door, has not been adopted as part of our knock-and-
announce jurisprudence under Article II, Section 10. Even after Banks, our Supreme Court
has stated that “[a]bsent exigent circumstances, officers must knock and announce their
purpose and identity, then wait a reasonable period of time to determine if consent to enter

                                              15
will be given before forcefully entering.” Johnson, 2006-NMSC-049, ¶ 12 (emphasis
added); cf. Lopez, 2005-NMSC-018, ¶ 23 (applying the Banks Fourth Amendment rule that
reasonableness is assessed by reference to the time it would take for someone to attempt to
engage in the conduct that the exigent circumstances exceptions seek to prevent to a case
where the exigent circumstances exception applied based on an increased danger to officers,
and stating that when, as in Lopez, the exigent circumstances exception applies, officers are
permitted to “altogether dispense with the knock[-]and[-] announce rule or partially comply
by knocking and announcing their identity and purpose before forcible entry, leaving the
decision to the officers’ judgment based on their experience”). Johnson was a case involving
a search warrant for drugs, and, although it cited Banks, it did not conclude, as in Banks, that
once the police officers knocked and announced their presence and purpose they created an
exigency based on the possibility that the occupants would attempt to destroy the drugs. See
Johnson, 2006-NMSC-049, ¶¶ 12-17. Instead, Johnson continued to evaluate the
reasonableness of the police officers’ wait by reference to how long it might take Johnson
to answer the motel room door or for the police to reasonably infer constructive refusal to
open the door. Id. Similarly, in Hand, which also involved a search for drugs, our Supreme
Court looked to the time it would take for someone to come to the door or otherwise respond
to the police. 2008-NMSC-014, ¶¶ 7-12. It did not consider the time it would take for
someone who had been alerted to the presence of police to begin to destroy the drugs. Id.
Thus, when exigent circumstances do not excuse the knock-and-announce requirement,
under the New Mexico Constitution, the assessment of how long officers must reasonably
wait between knocking and announcing and a forcible entry continues to be made by
reference to the time that it would take someone to voluntarily respond or for the police to
infer constructive refusal, not by the time that it would take for the occupants to engage in
the behavior that the exigent circumstances exceptions seek to prevent.

{33} We note that, even if we were to apply the Fourth Amendment standard, Banks found
a time period of fifteen to twenty seconds to be reasonable in light of the possibility that the
occupants of the home would hear the announcement by the police and then attempt to
destroy the drugs sought under the warrant. Banks, 540 U.S. at 41. Here, with only a one-
to-five-second wait, if Banks applied, it would not compel a conclusion that the delay in this
case was reasonable.

CONCLUSION

{34} The police’s entry into Defendant’s home after waiting only one to five seconds after
knocking and announcing violated her right to be free of unreasonable searches under the
New Mexico Constitution. Accordingly, the district court erred in denying Defendant’s
motion to suppress evidence obtained during the search. We reverse and remand to permit
Defendant to withdraw her conditional plea. See State v. Hodge, 118 N.M. 410, 416, 882
P.2d 1, 7 (1994) (stating that where a defendant enters a conditional guilty plea, she is
permitted to withdraw the plea after prevailing on appeal).

{35}   IT IS SO ORDERED.

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                                          ____________________________________
                                          JAMES J. WECHSLER, Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Judge

____________________________________
J. MILES HANISEE, Judge

Topic Index for State v. Jean-Paul, No. 31,179

APPEAL AND ERROR
Standard of Review

CONSTITUTIONAL LAW
Exclusionary Rule
Fourth Amendment
Interstitial Analysis
New Mexico Constitution, General
Suppression of Evidence

CRIMINAL LAW
Controlled Substances

CRIMINAL PROCEDURE
Exigent Circumstances
Reasonable Suspicion
Search and Seizure




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