knock and announce rule in New Mexico

2016Unpersuaded, we affirm. 4 {2} The State raised a single issue in its docketing statement, contending that the 5 district court erred in granting Defendant’s motion to suppress evidence based on the 6 officers’ failure to comply with the knock and announce requirement. [CN 2] Based 7 on the totality of the circumstances in this case, we proposed to affirm the district 8 court’s suppression order. [CN 2] See State v. Attaway, 1994-NMSC-011 , ¶ 22, 117 9 N.M. 141 , 870 P.2d 103 (holding that the reasonableness of a search and seizure under 10 Article II, Section 10 of the New Mexico Constitution

2014However, relying on Hudson, the State argued that the proper 4 remedy for a knock and announce violation should be a civil remedy, not application 5 of the exclusionary rule. [DS 3] The district court rejected the State’s argument and 6 held that, under State v. Attaway, 1994-NMSC-011 , 117 N.M. 141 , 870 P.2d 103 , 7 suppression was the proper remedy. [RP 37] See id., ¶ 22, n. 6 (stating that under 8 Article II, Section 10, suppression is the appropriate remedy for failure to follow the 9 knock and announce rule). 10 {4} We agree with the district court.

2016Unpersuaded, we affirm. 4 {2} The State raised a single issue in its docketing statement, contending that the 5 district court erred in granting Defendant’s motion to suppress evidence based on the 6 officers’ failure to comply with the knock and announce requirement. [CN 2] Based 7 on the totality of the circumstances in this case, we proposed to affirm the district 8 court’s suppression order. [CN 2] See State v. Attaway, 1994-NMSC-011 , ¶ 22, 117 9 N.M. 141 , 870 P.2d 103 (holding that the reasonableness of a search and seizure under 10 Article II, Section 10 of the New Mexico Constitution

2016Unpersuaded, we affirm. 4 {2} The State raised a single issue in its docketing statement, contending that the 5 district court erred in granting Defendant’s motion to suppress evidence based on the 6 officers’ failure to comply with the knock and announce requirement. [CN 2] Based 7 on the totality of the circumstances in this case, we proposed to affirm the district 8 court’s suppression order. [CN 2] See State v. Attaway, 1994-NMSC-011 , ¶ 22, 117 9 N.M. 141 , 870 P.2d 103 (holding that the reasonableness of a search and seizure under 10 Article II, Section 10 of the New Mexico Constitution

2009See State v. Ortega, 117 N.M. 160, 162-63 , 870 P.2d 122, 124-25 (1994) (holding that “the mere potential for destruction of evidence does not in itself give rise to any exigency,” but that if the officer has good reason, based on “particular circumstances,” that suspects will destroy evidence, that evidence will excuse compliance with the knock and announce rule). {22} The knock and announce rule serves a number of purposes, including preventing the needless destruction of property and protecting “the sanctity of the home and individual privacy.” Attaway, 117 N.M. at 147 , 870 P.2d at 109 .

2009See State v. Ortega, 117 N.M. 160, 162-63 , 870 P.2d 122, 124-25 (1994) (holding that “the mere potential for destruction of evidence does not in itself give rise to any exigency,” but that if the officer has good reason, based on “particular circumstances,” that suspects will destroy evidence, that evidence will excuse compliance with the knock and announce rule). {22} The knock and announce rule serves a number of purposes, including preventing the needless destruction of property and protecting “the sanctity of the home and individual privacy.” Attaway, 117 N.M. at 147 , 870 P.2d at 109 .

2014We remain unpersuaded that our initial proposed 3 disposition was incorrect, and we therefore affirm. 4 {2} In its memorandum in opposition, the State continues to argue that suppression 5 of evidence is not the proper remedy for a violation of the knock and announce rule, 6 given the policy considerations stated in Michigan v. Hudson, 547 U.S. 586 , 591-94 7 (2006) (holding that a violation of the Fourth Amendment’s knock and announce rule 8 does not require suppression of evidence obtained in the search). [MIO 16-20] “The 9 standard of review for suppression rulings is whether the law was co

2013Id. 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.

2006Rep. 194, 195-96 (K.B.1603) (emphasis added)). {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, 119 N.M. 727, 735 , 895 P.2d 249, 257 (Ct.App.1995).

2006Rep. 194, 195-96 (K.B.1603) (emphasis added)). {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, 119 N.M. 727, 735 , 895 P.2d 249, 257 (Ct.App.1995).

2005We require 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. at 394 , 117 S.Ct. 1416 .

2005We require 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. at 394 , 117 S.Ct. 1416 .

2016Specifically, we were not convinced that the State demonstrated a 16 justification for the noncompliance that would render the officers’ forcible entry into 17 Defendant’s home reasonable under Article II, Section 10. [CN 6] See State v. 18 Halpern, 2001-NMCA-049, ¶ 9 , 130 N.M. 694 , 30 P.3d 383 (“When the police have 19 not complied with the knock and announce requirement, the State bears the burden of 2 1 proving justification for noncompliance.”). 2 {3} In its memorandum in opposition, the State continues to argue that the officers 3 were justified in dispensing with the knock and announce

2016Specifically, we were not convinced that the State demonstrated a 16 justification for the noncompliance that would render the officers’ forcible entry into 17 Defendant’s home reasonable under Article II, Section 10. [CN 6] See State v. 18 Halpern, 2001-NMCA-049, ¶ 9 , 130 N.M. 694 , 30 P.3d 383 (“When the police have 19 not complied with the knock and announce requirement, the State bears the burden of 2 1 proving justification for noncompliance.”). 2 {3} In its memorandum in opposition, the State continues to argue that the officers 3 were justified in dispensing with the knock and announce

2016Unpersuaded, we affirm. 4 {2} The State raised a single issue in its docketing statement, contending that the 5 district court erred in granting Defendant’s motion to suppress evidence based on the 6 officers’ failure to comply with the knock and announce requirement. [CN 2] Based 7 on the totality of the circumstances in this case, we proposed to affirm the district 8 court’s suppression order. [CN 2] See State v. Attaway, 1994-NMSC-011 , ¶ 22, 117 9 N.M. 141 , 870 P.2d 103 (holding that the reasonableness of a search and seizure under 10 Article II, Section 10 of the New Mexico Constitution

2016Thus, we proposed to conclude that 17 absent an affirmative refusal by Defendant to permit the officers to enter his home 18 before the officers forcibly entered, compliance with the rule of announcement was 19 not futile. [CN 6] See id. ¶ 11(stating that the knock and announce rule requires that 5 1 law enforcement be denied admission prior to forcibly entering closed premises); see 2 also Jean-Paul, 2013-NMCA-032, ¶ 9 (recognizing that one of the purposes of the 3 knock and announce rule is “preventing the needless destruction of property”). 4 {7} The State acknowledges that Defendant did no

2010Fourteen years later, in dealing with a purported violation of the knock and announce rule, State v. Johnson recognized that in at least two other jurisdictions, courts have held that “where officers know there is a [meth] lab in operation, that knowledge may create exigency” because of the risk of fire, explosion, or other potential harms. 2004-NMCA-064, ¶ 11 , 135 N.M. 615 , 92 P.3d 61 , aff'd in part, rev’d in part on other grounds, 2006-NMSC-049 , 140 N.M. 653 , 146 P.3d 298 .

2010Fourteen years later, in dealing with a purported violation of the knock and announce rule, State v. Johnson recognized that in at least two other jurisdictions, courts have held that “where officers know there is a [meth] lab in operation, that knowledge may create exigency” because of the risk of fire, explosion, or other potential harms. 2004-NMCA-064, ¶ 11 , 135 N.M. 615 , 92 P.3d 61 , aff'd in part, rev’d in part on other grounds, 2006-NMSC-049 , 140 N.M. 653 , 146 P.3d 298 .

2008The Davis court explained that, “[w]here an occupant sees the police and immediately retreats back into the premises, ... the duty of the police to knock, announce, and wait is obviated.” Id. at 1042. {14} Under the unique facts of this case, we are persuaded that the officers’ compliance with the knock-and-announce rule would have been futile because it would not have furthered any of the interests the rule is meant to protect, but instead would have amounted to a meaningless gesture.

2006Instead, the court noted that "[i]t has long been the rule . . . that where the police are reasonably certain that the occupants are aware of their presence and purpose, the police need not knock and announce," and held that "[w]here an occupant sees the police and immediately retreats back into the premises, as is the case here, the duty of the police to knock, announce, and wait is obviated." Id. at 1042. {48} Because I conclude that further compliance with the knock-and-announce rule would have protected no legitimate interest of Defendant and could have served no purpose but allowing Defen

2021See Ulibarri, 2010-NMCA-084, ¶ 7 . {7} Insofar as the State asserts for the first time on appeal that full compliance with the knock-and-announce requirement would have been futile [MIO 9], we construe the assertion as a motion to amend the docketing statement.

2013Ulibarri, 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.

2014See State v. Soto, 2001-NMCA-098, ¶ 6 , 14 131 N.M. 299 , 35 P.3d 304 . 15 {3} Defendant sought suppression of evidence recovered during a search of her 16 home, on the basis that police had violated the knock and announce rule when 17 executing the search warrant. [RP 21-25] See State v. Gonzales, 2010-NMCA-023 , 18 ¶ 1, 47 N.M. 735 , 228 P.3d 519 (“The knock and announce rule requires that officers 19 entering a residence to execute a search or arrest warrant knock and announce their 2 1 identity and purpose and then wait a reasonable time to determine whether consent to 2 enter will be give

2014See State v. Soto, 2001-NMCA-098, ¶ 6 , 14 131 N.M. 299 , 35 P.3d 304 . 15 {3} Defendant sought suppression of evidence recovered during a search of her 16 home, on the basis that police had violated the knock and announce rule when 17 executing the search warrant. [RP 21-25] See State v. Gonzales, 2010-NMCA-023 , 18 ¶ 1, 47 N.M. 735 , 228 P.3d 519 (“The knock and announce rule requires that officers 19 entering a residence to execute a search or arrest warrant knock and announce their 2 1 identity and purpose and then wait a reasonable time to determine whether consent to 2 enter will be give

2006See, e.g., Ker v. California, 374 U.S. 23, 47 , 83 S.Ct. 1623 , 10 L.Ed.2d 726 (1963) (Brennan, J., dissenting in part) (“Even if probable cause exists for the arrest of a person within, the Fourth Amendment is violated by an unannounced police intrusion into a private home, with or without an arrest warrant, except ... where the persons within already know of the officers’ authority and purpose ... or ... where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the

2006See, e.g., Ker v. California, 374 U.S. 23, 47 , 83 S.Ct. 1623 , 10 L.Ed.2d 726 (1963) (Brennan, J., dissenting in part) (“Even if probable cause exists for the arrest of a person within, the Fourth Amendment is violated by an unannounced police intrusion into a private home, with or without an arrest warrant, except ... where the persons within already know of the officers’ authority and purpose ... or ... where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the

2006See, e.g., Ker v. California, 374 U.S. 23, 47 , 83 S.Ct. 1623 , 10 L.Ed.2d 726 (1963) (Brennan, J., dissenting in part) (“Even if probable cause exists for the arrest of a person within, the Fourth Amendment is violated by an unannounced police intrusion into a private home, with or without an arrest warrant, except ... where the persons within already know of the officers’ authority and purpose ... or ... where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the

2006See, e.g., Ker v. California, 374 U.S. 23, 47 , 83 S.Ct. 1623 , 10 L.Ed.2d 726 (1963) (Brennan, J., dissenting in part) (“Even if probable cause exists for the arrest of a person within, the Fourth Amendment is violated by an unannounced police intrusion into a private home, with or without an arrest warrant, except ... where the persons within already know of the officers’ authority and purpose ... or ... where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the

2006See, e.g., Lopez, 2005-NMSC-018, ¶ 10 , 138 N.M. 9 , 116 P.3d 80 (listing circumstances in which the knock- and-announce rule is not mandated, such as when officers have reasonable suspicion that compliance would be futile); Attaway, 117 N.M. at 151 n. 7, 870 P.2d at 113 n. 7 (recognizing that circumstances besides officer safety concerns, including when a “suspect knows of officer’s presence and purpose before compliance,” might justify noncomplianee with the knock-and-announce rule); State v. Ortega, 114 N.M. 193, 196 , 836 P.2d 639, 642 (Ct.App.1992) (noting that noneomplianee with the knoc

2006See, e.g., Lopez, 2005-NMSC-018, ¶ 10 , 138 N.M. 9 , 116 P.3d *975 80 (listing circumstances in which the knock-and-announce rule is not mandated, such as when officers have reasonable suspicion that compliance would be futile); Attaway, 117 N.M. at 151 n. 7, 870 P.2d at 113 n. 7 (recognizing that circumstances besides officer safety concerns, including when a "suspect knows of officer's presence and purpose before compliance," might justify noncompliance with the knock-and-announce rule); State v. Ortega, 114 N.M. 193, 196 , 836 P.2d 639, 642 (Ct.App.1992) (noting that noncompliance with the

2006See, e.g., Lopez, 2005-NMSC-018, ¶ 10 , 138 N.M. 9 , 116 P.3d 80 (listing circumstances in which the knock- and-announce rule is not mandated, such as when officers have reasonable suspicion that compliance would be futile); Attaway, 117 N.M. at 151 n. 7, 870 P.2d at 113 n. 7 (recognizing that circumstances besides officer safety concerns, including when a “suspect knows of officer’s presence and purpose before compliance,” might justify noncomplianee with the knock-and-announce rule); State v. Ortega, 114 N.M. 193, 196 , 836 P.2d 639, 642 (Ct.App.1992) (noting that noneomplianee with the knoc

2006See, e.g., Lopez, 2005-NMSC-018, ¶ 10 , 138 N.M. 9 , 116 P.3d 80 (listing circumstances in which the knock- and-announce rule is not mandated, such as when officers have reasonable suspicion that compliance would be futile); Attaway, 117 N.M. at 151 n. 7, 870 P.2d at 113 n. 7 (recognizing that circumstances besides officer safety concerns, including when a “suspect knows of officer’s presence and purpose before compliance,” might justify noncomplianee with the knock-and-announce rule); State v. Ortega, 114 N.M. 193, 196 , 836 P.2d 639, 642 (Ct.App.1992) (noting that noneomplianee with the knoc

2006See State v. Berry, 174 Wis.2d 28 , 496 N.W.2d 746 (Ct.App.1993); Commonwealth v. Davis, 331 Pa.Super. 285 , 480 A.2d 1035 (1984); see also 2 LaFave, supra, § 4.8(c), at 671 n. 59 (“But if the announcement to the person who answers the door that the caller is a policeman results in immediate resistance, entry may be accomplished prior to announcement of purpose.... ”); 2 Joseph G.

2006See State v. Berry, 174 Wis.2d 28 , 496 N.W.2d 746 (Ct.App.1993); Commonwealth v. Davis, 331 Pa.Super. 285 , 480 A.2d 1035 (1984); see also 2 LaFave, supra, § 4.8(c), at 671 n. 59 (“But if the announcement to the person who answers the door that the caller is a policeman results in immediate resistance, entry may be accomplished prior to announcement of purpose.... ”); 2 Joseph G.

2001See, e.g., State v. Gutierrez, 116 N.M. 431, 447 , 863 P.2d 1052, 1068 (1993) (rejecting the federal "good faith exception” to the exclusionary rule); State v. Attaway, 117 N.M. 141, 147, 151 , 870 P.2d 103, 109, 113 (1994) (holding that the New Mexico Constitution embodies a knock-and-announce requirement while the United States Supreme Court had not addressed whether a knock-and-announce requirement was required for officers executing a search warrant); Campos v. State, 117 N.M. 155, 158 , 870 P.2d 117, 120 (1994) (declining to adopt the blanket federal rule that "all warrantless arrests of

2001See, e.g., State v. Gutierrez, 116 N.M. 431, 447 , 863 P.2d 1052, 1068 (1993) (rejecting the federal "good faith exception” to the exclusionary rule); State v. Attaway, 117 N.M. 141, 147, 151 , 870 P.2d 103, 109, 113 (1994) (holding that the New Mexico Constitution embodies a knock-and-announce requirement while the United States Supreme Court had not addressed whether a knock-and-announce requirement was required for officers executing a search warrant); Campos v. State, 117 N.M. 155, 158 , 870 P.2d 117, 120 (1994) (declining to adopt the blanket federal rule that "all warrantless arrests of

2016Specifically, we were not convinced that the State demonstrated a 16 justification for the noncompliance that would render the officers’ forcible entry into 17 Defendant’s home reasonable under Article II, Section 10. [CN 6] See State v. 18 Halpern, 2001-NMCA-049, ¶ 9 , 130 N.M. 694 , 30 P.3d 383 (“When the police have 19 not complied with the knock and announce requirement, the State bears the burden of 2 1 proving justification for noncompliance.”). 2 {3} In its memorandum in opposition, the State continues to argue that the officers 3 were justified in dispensing with the knock and announce

2016Specifically, we were not convinced that the State demonstrated a 16 justification for the noncompliance that would render the officers’ forcible entry into 17 Defendant’s home reasonable under Article II, Section 10. [CN 6] See State v. 18 Halpern, 2001-NMCA-049, ¶ 9 , 130 N.M. 694 , 30 P.3d 383 (“When the police have 19 not complied with the knock and announce requirement, the State bears the burden of 2 1 proving justification for noncompliance.”). 2 {3} In its memorandum in opposition, the State continues to argue that the officers 3 were justified in dispensing with the knock and announce

2010“A failure to comply with this requirement may result in a determination that the search was constitutionally unreasonable, and application of the exclusionary rule to any evidence seized as a result of such search.” State v. Vargas (Vargas I), 1996-NMCA-016 , ¶ 5, 121 N.M. 316 , 910 P.2d 950 (filed 1995) (citation omitted). {10} The knock-and-announce rule serves a number of purposes.

2010“A failure to comply with this requirement may result in a determination that the search was constitutionally unreasonable, and application of the exclusionary rule to any evidence seized as a result of such search.” State v. Vargas (Vargas I), 1996-NMCA-016 , ¶ 5, 121 N.M. 316 , 910 P.2d 950 (filed 1995) (citation omitted). {10} The knock-and-announce rule serves a number of purposes.

2013See 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-0534 12, 129 N.M. 257 , 5 P.3d 579 (stating that “[w]e disagree with the [sjtate’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

2013See 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-0534 12, 129 N.M. 257 , 5 P.3d 579 (stating that “[w]e disagree with the [sjtate’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

2006Wilson v. Arkansas, 514 U.S. 927, 929 , 115 S.Ct. 1914 , 131 L.Ed.2d 976 (1995).

2006Wilson v. Arkansas, 514 U.S. 927, 929 , 115 S.Ct. 1914 , 131 L.Ed.2d 976 (1995).

1995See Commonwealth v. Goggin, 412 Mass. 200 , 587 N.E.2d 785, 787 (1992).

1995See Commonwealth v. Goggin, 412 Mass. 200 , 587 N.E.2d 785, 787 (1992).

1995Exceptions to the knock-and-announce rule exist, however, if sufficient exigent • circumstances are present, such as a demonstrable risk that evidence will be destroyed while the officers wait to be denied entry, or specific information exists indicating that the danger to the officers executing the warrant will be increased, rather than decreased, if the officers comply with the rule. 1 Id. at 150 , 870 P.2d at 112 ; see also State v. Baca, 87 N.M. 12, 13-14 , 528 P.2d 656, 657-58 (Ct.App.), cert. denied, 87 N.M. 5 , 528 P.2d 649 (1974).

1995Exceptions to the knock-and-announce rule exist, however, if sufficient exigent • circumstances are present, such as a demonstrable risk that evidence will be destroyed while the officers wait to be denied entry, or specific information exists indicating that the danger to the officers executing the warrant will be increased, rather than decreased, if the officers comply with the rule. 1 Id. at 150 , 870 P.2d at 112 ; see also State v. Baca, 87 N.M. 12, 13-14 , 528 P.2d 656, 657-58 (Ct.App.), cert. denied, 87 N.M. 5 , 528 P.2d 649 (1974).

1995Exceptions to the knock-and-announce rule exist, however, if sufficient exigent • circumstances are present, such as a demonstrable risk that evidence will be destroyed while the officers wait to be denied entry, or specific information exists indicating that the danger to the officers executing the warrant will be increased, rather than decreased, if the officers comply with the rule. 1 Id. at 150 , 870 P.2d at 112 ; see also State v. Baca, 87 N.M. 12, 13-14 , 528 P.2d 656, 657-58 (Ct.App.), cert. denied, 87 N.M. 5 , 528 P.2d 649 (1974).

1995Exceptions to the knock-and-announce rule exist, however, if sufficient exigent • circumstances are present, such as a demonstrable risk that evidence will be destroyed while the officers wait to be denied entry, or specific information exists indicating that the danger to the officers executing the warrant will be increased, rather than decreased, if the officers comply with the rule. 1 Id. at 150 , 870 P.2d at 112 ; see also State v. Baca, 87 N.M. 12, 13-14 , 528 P.2d 656, 657-58 (Ct.App.), cert. denied, 87 N.M. 5 , 528 P.2d 649 (1974).

1994See, e.g., Rivera, 928 F.2d at 606 ; Andrus, 775 F.2d at 844 ; Francis, 646 F.2d at 257-58 ; Baker, 638 F.2d at 202 n. 7; cf. Minnesota v. Olson, 495 U.S. 91, 100 , 110 S.Ct. 1684, 1689 , 109 L.Ed.2d 85 (1990) (endorsing state court statement that risk of danger is an exigent circumstance that may justify warrantless entry to arrest or search).

1994See, e.g., Rivera, 928 F.2d at 606 ; Andrus, 775 F.2d at 844 ; Francis, 646 F.2d at 257-58 ; Baker, 638 F.2d at 202 n. 7; cf. Minnesota v. Olson, 495 U.S. 91, 100 , 110 S.Ct. 1684, 1689 , 109 L.Ed.2d 85 (1990) (endorsing state court statement that risk of danger is an exigent circumstance that may justify warrantless entry to arrest or search).