State v. Jean-PaulState v. Jean-Paul
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,
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
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
{6} In the absence of certain exceptions, the
{7} In contrast, Attaway states that suppression is the appropriate remedy under
{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 into 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
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 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
{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 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 Commonwealth 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
{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 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
{16} The State also relies on the unreported federal district court decision of United States v. Shaw, No. 02-4008101/03-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
{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
{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 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
{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 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
{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 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
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, ¶ 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
{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 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 playing a video game in order to either exclude or admit the police, and even the most cooperative occupant
{32} We recognize that, under the
{33} We note that, even if we were to apply the
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
{35} IT IS SO ORDERED.
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