State v. VargasState v. Vargas
Lead Opinion
{1} This case presents an opportunity to clarify the requirements of the knock-and-announce rule. We hold that the announcement component of the knock-and-announce rule requires officers executing an arrest warrant to inform the occupants of a residence that the officers are proceeding pursuant to a warrant. We further hold that unless and until officers have announced that they are executing a warrant, an occupant’s refusal to admit the officers into a residence does not automatically render futile further announcement of the officers’ purpose and authority nor does it constitute a per se exigency excusing compliance with the announcement component of the knock-and-announce rule.
{2} During the swing shift on December 3, 2002, Patrol Sergeant Chris Miller of the Las Cruces Police Department learned that there was an unexecuted bench warrant authorizing Defendant’s arrest for failure to appear in district court to answer a felony charge of battery on a peace officer. Sergeant Miller had encountered Defendant the previous day in municipal court, but at that time had not known of the felony warrant. Sergeant Miller checked computer records, which gave two addresses for Defendant. Sergeant Miller contacted dispatch and requested that they send officers to both addresses to execute the warrant.
{3} Officer Robert Elrick was directed to execute the warrant. Dispatch did not disclose the specific underlying felony charge. The dispatcher provided a general description of the subject: adult male, medium build, with a ponytail and goatee. Officer Frank Flores was on duty and was listening in on his radio and on his own initiative decided to assist Officer Elrick. Officers Elrick and Flores were aware that they were being sent to a possibly out of date, “secondary” address and that at the same time they were attempting to execute the warrant, a larger team of officers would be attempting to execute the warrant at a more recent address. Officers Elrick and Flores did not consider it likely that they would encounter the subject at the secondary address. Other officers listening in on the dispatch advised Officers Elrick and Flores that the subject of the warrant was involved in drugs and that he might fight them. Officers Elrick and Flores had no other information suggesting that the subject was armed or dangerous. Officer Flores was a team leader for a SWAT team. In his view, the attempt to execute the warrant was “nothing like” a SWAT situation. A “high risk warrant” would have been assigned to a tactical unit for execution, not to a single patrol officer.
{4} Officer Elrick was wearing a standard uniform with a metal badge. Officer Flores was dressed in a navy blue bike uniform with shorts, a yellow cloth badge, and a leather Sam Browne belt with his equipment and gun. The officers arrived at the address provided by dispatch around 8:00 p.m. The address was an apartment building.
{5} The officers approached the door to the subject’s apartment, and, as a routine safety precaution, stationed themselves off to the sides of the door, with Officer Elrick on the right, doorknob side and Officer Flores on the left side of the door. The officers did not engage in any reconnaissance other than to pause momentarily to listen for voices or other sounds inside the apartment. The officers heard two voices, one of which was male. As Officer Elrick was preparing to knock, the door was opened from the inside by a man whose appearance matched the general description of the subject given by the dispatcher. The man remained behind the door, inside the threshold of the apartment. Officer Elrick said “Hi, how ya’ doin’,” or “Hey bro’, how ya doin’?” The man exclaimed “Oh shit!” and attempted to shut the door. Officer Elrick and Officer Flores each blocked the door with a foot. Officer Flores, shouted “don’t close the door, don’t close the door!” As the man struggled to shut the door, Officer Flores saw a “bluish-purplish, dark-colored blur” move across the man’s body. The movement was followed by a “loud thump” consistent with an object of significant weight hitting the floor. The officers were concerned that the thump might have been the sound of a firearm hitting the floor. The man let go of the door and Officer Flores entered the apartment with his gun drawn, followed by Officer Elrick. Officer Flores did not announce his purpose or authority prior to entering the apartment; indeed, Officer Flores’s practice was to not disclose the existence of an arrest warrant to a person answering the door due to his concern that the subject of the warrant would “take off’ if he realized that officers were present to make an arrest.
{6} In addition to the man, the officers encountered a woman, who was reclining on a couch as the officers entered. The man angrily complained to the officers that they had “just busted into the apartment,” and “had no reason for being there.” The man asked Officer Flores “what are you doing, breaking into my house?” The officers ordered the man and woman to sit on the couch while they confirmed the man’s identity. The man complied with all the commands
{7} Upon entering the apartment, Officer Elrick immediately looked for the object that had made the thump. He located and retrieved a Crown Royal bag. He felt a square, solid object within the bag. He looked in the opening of the bag to determine if the object was a gun. He observed a green, leafy substance that he thought might be marijuana. He emptied the bag and discovered marijuana, cocaine, scissors, and an electronic scale.
{8} As Officer Elrick was securing the Crown Royal bag, Officer Flores was confirming that the man in the apartment was the subject of the warrant. The man told Officer Flores his name was Peter Vargas. He gave Officer Flores his date of birth and social security number. The man and the woman claimed that the man had “taken care” of the warrant. Based on his past experience, Officer Flores was skeptical. The woman showed Officer Flores paperwork establishing that a Peter Vargas had appeared in magistrate and municipal court the day before. However, the warrant numbers on the paperwork did not match the warrant that the officers were executing. The officers handcuffed the man, now identified as Defendant, and arrested him.
{9} Defendant was indicted by a grand jury and charged with narcotics trafficking, possession of drug paraphernalia, and possession of marijuana. Defendant moved to suppress the evidence seized by Officers Elrick and Flores, arguing, inter alia, that the officers violated the knoek-and-announce rule as set out in State v. Attaway,
1. As officers moved to knock, the door was opened by a man matching the general description of the man sought to be arrested pursuant to a bench warrant. That man said, “oh shit” on seeing the two men, who w[ere] dressed as police officers, and attempted to shut the door.
2. Due to the particular facts of this case, it would be inappropriate and unsafe to require the officers to allow the door to be shut and then knock and announce their presence and purpose.
3. The move made by the officers inside the door to identify that man (who later turned out to be the defendant) was justified by concern for officer safety.
Following the denial of his motion to suppress, Defendant entered a conditional guilty plea to the trafficking count, reserving the right to appeal the denial of his motion to suppress.
DISCUSSION
{10} In reviewing a ruling granting or denying a motion to suppress, we apply the deferential standard of review adopted by our Supreme Court. State v. Lopez,
{11} In Attaway,
{13} Warrants are issued in ex parte proceedings. State v. Maes,
But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors ..., for the law without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and ineonvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of which, if he had notice, it is to be presumed that he would obey it[J
Wilson,
{14} We recognize that in the past we have stated that “once the occupants have voluntarily opened the door to uniformed officers, the requirements of the knock and announce rule are satisfied.” State v. Chandler,
{15} In this case, Defendant appears to have been alerted to the presence of the police officers when he opened the door. His exclamation of “Oh shit!” strongly suggests that Defendant, who was in possession of illegal drugs at the time, and understandably, would have desired to avoid an encounter with police, recognized that the persons confronting him were uniformed police officers.
{16} We reject the State’s argument that the occupant’s ■ surprise upon seeing the officers and his attempt to immediately close the door rendered further compliance with the announcement component of the knock-and-announce rule a useless gesture. Officers executing a warrant are excused from announcing their purpose and authority where facts known to the officer “justify them in being virtually certain that the [subject] already knows their purpose so that an announcement would be a useless gesture.” See Miller v. United States,
{17} It is well established that, apart from futility, compliance with the knock-and-announce rule may be excused by exigent circumstances. Lopez,
{18} The initial Fourth Amendment/Article II, Section 10 intrusion occurred when Officers Elrick and Flores placed their feet between the doorjamb and door to prevent Defendant from shutting the door. See State v. Reynaga,
{19} At the point that the officers crossed the threshold of the apartment, the officers were aware that: (1) the subject of the warrant had failed to appear in district court on an undisclosed felony charge; (2) the subject of the warrant might be involved with illegal drugs; (3) under certain circumstances, the subject of the warrant might fight officers; (4) the occupant who answered the door matched the description of the subject of the warrant and was surprised to find police officers outside his door; and (5) the occupant attempted to avoid contact with the officers by shutting the door.
{20} The first two factors—probable cause to believe Defendant had committed a felony and reason to believe that Defendant was involved with illegal drugs—are routinely present in any case in which police are executing a warrant related to a felony drug offense. It is well-established that knowledge regarding the general propensity of drug dealers to arm themselves or to resist police ordinarily is not sufficient of itself to excuse compliance with the announcement requirement. Lopez,
{21} The State argues that we should treat Defendant’s surprise and his attempt to shut the door in response to seeing the officers as exigent circumstances excusing an announcement. The State fails to recognize that, as we have noted above, shutting a door can be an assertion of constitutional rights.
[The defendant] communicated to the officers the limited scope of his consent ... when he attempted to bar the officers’ entry into the apartment by closing the door, and the officers exceeded the scope of [the defendant’s] voluntary consent when they forced their way over the threshold and into the apartment.
Robinson,
{22} The State suggests that we defer to the opinions of Officers Elrick and Flores, who testified that they perceived Defendant’s conduct in attempting to shut the door as a threat to their physical safety. While we agree that the testimony of these officers is important evidence, it cannot be dispositive of itself of reasonableness in the constitutional sense. Due to training and work experience, law enforcement officers
[P]olice work ... by its nature, puts officers in personal jeopardy, and often requires officers to assert authority over others____[Tjhese two phenomena — personal danger and the need to assert authority— deeply affect officers’ views of the world____ ‘Working together, the factors of danger and authority tend to make police officers constantly vigilant, suspicious, and ready to assert dominant authority’ over civilians in situations where an officer’s authority is questioned in even the most minor of ways. Necessarily, it would appear, the same vigilance that officers apply to detect criminality as part of their work becomes a “fact of life” for their interactions with the broader public.
Eliot Spitzer, Office of the Attorney Gen. of the State of N.Y., The New York City Police Department’s “Stop & Frisk” Practices: A Report to the People of the State of New York From The Office Of The Attorney General 67 (1999) (footnotes omitted). The magnitude of the harm in a worst case scenario— death or serious physical injury — understandably encourages an attitude that it is better to treat every citizen-officer encounter as potentially threatening rather than risk overlooking a single actual threat to the officer’s personal safety. A purely police-centric standard of objective reasonableness can be expected to be significantly over-inclusive in the perception of threat, and, in conjunction with the already-relaxed constitutional standard,
{23} The one circumstance known to Officers Elrick and Flores that clearly stands out was an unidentified officer’s opinion that Defendant might fight. Although this circumstance would have justified a reasonable officer in exercising caution,
{25} We of course may not engage in a “divide-and-eonquer analysis” in which we consider each allegedly exigent circumstance out of context, dismissing that particular circumstance as insufficient of itself to justify the actions of the law enforcement officers. State v. Vandenberg,
{26} The Fourth Amendment and Article II, Section 10 protect the people against unreasonable searches and seizures. Because the crucial modifier “unreasonable” is not self-defining and because searches and seizures occur in innumerable and varied factual contexts, the line between reasonable and unreasonable searches and seizures is drawn by judicial decisions. Fourth Amendment/Article II, Section 10 analysis of police conduct is to a considerable extent a matter of circular, “chicken or the egg,” reasoning: does police practice prescribe what expectations of privacy are constitutionally reasonable, or do judicial rulings validating expectations of privacy as reasonable prescribe police practice? When a court denies a motion to suppress, it is deciding that the officers’ view of the world was reasonable and that the individual’s expectation of being free of the particular intrusion was unreasonable. When a court grants a motion to suppress, it is validating an expectation of privacy as reasonable and simultaneously deciding that the officers’ conduct was unreasonable under the circumstances. The reality and the irony of search and seizure jurisprudence is that the rights of law-abiding citizens to go about their daily activities free of random and arbitrary intrusions by law enforcement officials is primarily determined by rulings on motions to suppress evidence filed by the defendants in criminal cases, and not by judgments in civil rights cases vindicating a citizen’s expectation of privacy as reasonable: “[i]t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” Florida v. Riley,
{27} We offer the following in response to the dissent.
{28} Because reasonableness is fact specific, it is essential that a court base its reasonableness analysis on the record. Here, the timing of events is critical to the analysis of the constitutionality of the unannounced entry. Although the dissent states that “Defendant disobeyed the commands of uniformed officers immediately before their entry into his apartment,” (emphasis added), see dissent ¶ 45, a careful review of the record establishes that at the point in time that Defendant began to shut the door the only thing the officers had said was “Hi, how ya’ doin’’ or “Hey bro’, how ya doin’?” Defendant could not have disobeyed the officers’ commands when he began to shut the door, because the officers had not ordered him to do anything at that point. The officers blocked the doorway in response to Defendant’s entirely lawful
{29} The dissent, in our opinion, significantly understates the character of the privacy interests implicated by the officers’ entry by force and with guns drawn. First, the dissent’s approach largely ignores the privacy interests of the other occupant(s). Second, the dissent ignores a homeowner’s important privacy interest in excluding unwanted visitors. Unless and until officers have announced that they are present under the authority of a warrant, they are not situated any differently from any, other unwelcome visitor from the standpoint of the homeowner. From a homeowner’s standpoint, a stranger’s use of force to prevent the homeowner from shutting the door is a serious invasion of privacy. Third, the dissent ignores the interest of both the subject of the warrant and any other occupants in not being unnecessarily subjected to threats of deadly force. The experience of being ordered about one’s own home by armed strangers shouldn’t be dismissed as a de minimis intrusion.
{30} When police practice departs from the constitutional default rule-in this instance, announcing that the officers are present for the purpose of executing an arrest warrant before resorting to an entry by force — the State bears the burden of proving the constitutional reasonableness of the alternative employed by police. See State v. Mann,
{31} Contrary to the dissent’s assertion, we have not established a bright line rule that an officer’s crossing the threshold of a residence to block a doorway prior to an announcement will always violate the Fourth Amendment or Article II, Section 10. By way of example, a case in which the officer blocks the door while simultaneously announcing that he has a warrant would be materially distinguishable from the present case. Moreover, we have not decided that the unannounced forced entry in this case was unreasonable as a matter of law, nor do we mean to foreclose the State from proving on remand that the course of conduct followed by the executing officers was constitutionally reasonable. Rather, we merely hold that on the record before us, the State did not meet its burden of proving that the alternative course of conduct followed by the officers in fact furthered the interest in officer and occupant safety. We decline to unquestioningly accept the unproven proposition that immediate resort to armed force actually advances the interests of officer and occupant safety. Without proof that safety interests in fact are advanced by a forced entry at gunpoint, a court can only speculate as to how the balance of interests furthered by an unannounced forced entry at gunpoint compared to the balance of interests furthered by an announced entry.
{32} We conclude that on the particular facts of this case, the State failed to carry its burden of demonstrating that the balance of privacy interests versus law enforcement interests justified dispensing with an announcement of the officer’s purpose and authority. Two factors stand out. First, and most importantly, the officers executing the warrant were not given any specific information that Defendant or any other occupant was armed and dangerous. Second, the intrusion in this case was into a private residence, a setting where Fourth Amendment and Article II, Section 10 privacy interests traditionally are of heightened importance.
{33} We conditionally reverse the order denying Defendant’s motion to suppress. We remand to the district court for reconsideration of Defendant’s motion under the standards set out in this opinion.
{34} IT IS SO ORDERED.
Notes
. Indeed, as previously noted, it appears to have been Officer Flores’s standard practice in serving arrest warrants not to announce his purpose.
. From information in the record proper documenting Defendant's prior convictions, it appears to a near certainty that Defendant is the same Peter Vargas whose convictions we affirmed in State v. Vargas,
. Reasonable suspicion "falls considerably short of satisfying a preponderance of the evidence standard.” United States v. Arvizu,
. We assume that the unidentified officer would not have advised Officers Elrick and Flores that Defendant "might fight them" if he had meant to communicate his belief that Defendant would resist arrest with deadly force and that Officers Elrick and Flores would have understood the officer’s warning as a reference to possible resistance not involving deadly force.
. New Mexico law does not criminalize a refusal to admit officers executing a warrant when the defendant does not know that the officers are attempting to serve or execute process. NMSA 1978, § 30-22-1(A) (1981). The crime of evading arrest includes a requirement that the defendant have had knowledge that the officer was attempting to apprehend or arrest the defendant. Subsection 30-22-1(B); UJI 14-2215 NMRA. These mens rea requirements underscore the importance of announcing the authority of the warrant early in the process of executing the warrant so as to render resistance or evasion unlawful.
. The district court relied solely on officer safety and did not make findings addressing how dispensing with an announcement furthered the State’s interest in arresting Defendant. On remand, the district court should compare the relative effectiveness of the unannounced entry by force against methods of securing Defendants's person that did not require dispensing with an announcement.
. In fairness to the officers, the State, and the district court, we acknowledge that prior cases had not clearly articulated the requirement of an announcement of purpose and authority in addition to an announcement of presence.
Dissenting Opinion
(dissenting).
{35} I respectfully dissent from the majority opinion. I agree with the majority that
{36} When our Supreme Court in Attaway first held that the knock-and-announce rule has constitutional significance, it stressed that “the ultimate question in all cases regarding alleged search and seizure violations is whether the search and seizure was reasonable.” Attaway,
{37} “[T]he reasonableness of the manner of execution of a warrant must be evaluated in the light of each of the interests served by the announcement rule.” Reynaga,
{38} In this case the policy concerns underlying the adoption of the knock-and-announce rule — officer safety, protection of privacy, and avoidance of property damage— were all better served by the officers’ actions than by a strict application of the knock-and-announce rule. See id. The majority’s proposed procedure — requiring officers to allow Defendant to close the door before announcing their presence and waiting for a response — would have only frustrated the purposes of the knock-and-announce rule.
{39} First, had Defendant successfully closed his door against the orders of the officers, he could have escaped or armed himself. This case is not one in which Defendant might have mistakenly attacked the officers in response to what appeared to be a burglary or another illegal intrusion. See, e.g., Reynaga,
{40} Second, the officers would have been more likely to damage property in their entry if they had waited until the door was
{41} Finally, Defendant and others in the residence are more likely to be surprised, and their privacy invaded, a minute or two after the door closes than they are when the door remains open and they know the interi- or of their apartment is exposed to view by passersby in the hall. I certainly agree with the majority that “[t]he sanctity of the home is not abandoned simply by leaving a door cracked.” Halpern,
protects those elements of privacy and dignity that can be destroyed by a sudden entrance. It gives residents the opportunity to prepare for the entry of the police. The brief interlude between announcement and entry with a warrant may be the opportunity that an individual has to pull on clothes or get out of bed. In other words, it assures the opportunity to collect oneself before answering the door.
Hudson, — U.S. at -,
{42} In balancing the totality of the circumstances, then, I would hold that the interests underlying the knoek-and-announce rule were met in this case and that the officers’ entry was therefore reasonable. See Lopez,
{43} The facts of this ease, particularly when viewed in the light most favorable to the State, evidence reasonable actions on the part of the police officers. The officers went to an apartment to execute a valid warrant. Before they knocked, the door opened and officers saw a man fitting the description of the person they sought. Both officers testified that upon seeing the officers, the man attempted to retreat into the apartment and close the door. The officers told Defendant not to close the door and put a foot into the doorway to prevent Defendant from disobeying them. It would have been unreasonable for the officers to allow Defendant to close the door and escape while the officers waited for him to return to the door, and the law should not require such an impractical result. I agree that it would have been better had the officers informed Defendant that they had a warrant immediately upon seeing him, but I would not fault them for a delay of only a few seconds while they prevented Defendant from barricading himself inside the apartment or escaping through a window.
{44} Furthermore, our courts have recognized a futility exception to the knock-and-announce requirement. See, e.g., Lopez,
{45} The circumstances in this case justify the officers’ partial compliance. I agree with the majority’s refusal “to adopt a presumption that a homeowner who peacefully opposes an apparently warrantless ... entry necessarily will resist the authority of a warrant.” However, given the facts of this case, in which Defendant disobeyed the commands of uniformed officers immediately before their entry into his apartment, I believe it would have been futile for the officers to announce their purpose. Defendant’s actions were not mere opposition and the officers’ response was reasonable. At least two other jurisdictions have concluded that the knock-and-announce rule was not violated by police action in similar situations. See State v. Berry,
{46} Officers in Berry were approaching a house to execute a search warrant when they saw an occupant looking at them from a window. Berry,
Likewise, we determine that rigid compliance with the rule of announcement in this ease would have been a useless gesture. [The defendant] had been looking out the window as the officers approached the house and yelled “Police.” The officers were dressed in a manner that clearly identified them as law enforcement. After seeing the officers, [the defendant] began to close the door in an obvious attempt to prohibit the officers from gaining entry. From this action, the officer reasonablybelieved that to announce that he had a search warrant to wait for admission would have been futile.
Id. at 748. The court noted that “[i]t stretches belief to suppose that [the suspect] would have immediately stopped pushing on the door if [the officer] had added, after identifying himself as a police officer, that he possessed a search warrant.” Id. at 749 (alterations in original) (internal quotation marks and citation omitted).
{47} In Davis, officers executing a search warrant were approaching a house when a man saw them and fled inside. Davis,
{48} Because I conclude that further compliance with the knock-and-announee rule would have protected no legitimate interest of Defendant and could have served no purpose but allowing Defendant to arm himself or escape, I believe the Fourth Amendment and Article II, Section 10 were not violated by the officers’ entry in this case. I do not believe that it is reasonable to require officers to follow futile procedures. I therefore agree with the district court that, under the limited facts of this ease, the officers’ conduct was justified.
{49} I also disagree with the majority’s characterization of Defendant’s actions in resisting the officers as “an assertion of constitutional rights.” Certainly shutting a door can successfully terminate a consensual encounter with police. Cf. State v. Scott,
{50} For the above-stated reasons, I respectfully dissent.