futility exception in New Mexico

2008Instead, compliance is excused if “ ‘officers have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be ... futile.’ ” State v. Lopez, 2005-NMSC-018, ¶ 10 , 138 N.M. 9 , 116 P.3d 80 (quoting United States v. Banks, 540 U.S. 31, 36 , 124 S.Ct. 521 , 157 L.Ed.2d 343 (2003)). {12} The rules governing our review of the futility exception are the same as those we apply in cases involving exigent circumstances.

2008Instead, compliance is excused if “ ‘officers have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be ... futile.’ ” State v. Lopez, 2005-NMSC-018, ¶ 10 , 138 N.M. 9 , 116 P.3d 80 (quoting United States v. Banks, 540 U.S. 31, 36 , 124 S.Ct. 521 , 157 L.Ed.2d 343 (2003)). {12} The rules governing our review of the futility exception are the same as those we apply in cases involving exigent circumstances.

2022This definition of futility is embodied in the PLRA’s futility rule as well: “Where prison officials prevent, thwart, or hinder a prisoner’s efforts to avail himself of an administrative remedy, they render that remedy ‘unavailable’ and a court will excuse the prisoner’s failure to exhaust.” Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010). {44} When looking to the facts alleged in the amended complaint and accepting the allegations therein as true, Plaintiffs do not state any facts to show that exhaustion of available NMCD remedies would be futile.

2022This 3 is not futility. 4 {43} We have held that “[f]utility, as an exception to exhaustion requirements, 5 applies where the agency has deliberately placed an impediment in the path of a 6 party, making an attempt at exhaustion a useless endeavor.” In re McElveny, 2017- 7 NMSC-024, ¶ 31 (emphasis added) (internal quotation marks and citation omitted). 8 This definition of futility is embodied in the PLRA’s futility rule as well: “Where 9 prison officials prevent, thwart, or hinder a prisoner’s efforts to avail himself of an 10 administrative remedy, they render that remedy ‘unavailable’ and a

2022See Gzaskow, 2017-NMCA-064, ¶ 23 ; see also Rule 5-802(H)(2)(b) (providing that the court shall order a summary dismissal of a petition for a writ of habeas corpus if it plainly appears from the record that “the petitioner is not entitled to relief as a matter of law”).

2022See Gzaskow, 2017-NMCA-064 , ¶ 16 23; see also Rule 5-802(H)(2)(b) (providing that the court shall order a summary 17 dismissal of a petition for a writ of habeas corpus if it plainly appears from the record 18 that “the petitioner is not entitled to relief as a matter of law”).

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

2022The Court then declined to apply the futility doctrine because futility of exhaustion would be an inappropriate “excuse for bypassing a clear statutory directive.” Id. ¶ 12. {18} On the other hand, in In re McElveny, this Court held that exhaustion of administrative remedies under the Uniform Unclaimed Property Act (UPA), NMSA 1978, §§ 7-8A-1 to -31 (1997, as amended through 2007), is “non-jurisdictional” and subject to judicial discretion and exceptions. 2017-NMSC-024, ¶¶ 1, 28 .

2013See, 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).

2013See, 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).

2013See, 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).

2013See, 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).

2013See 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).

2013See 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).

2013Cir. 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).

2008State v. Ochadleus, 326 Mont. 441 , 110 P.3d 448, 458 (2005).

2008State v. Ochadleus, 326 Mont. 441 , 110 P.3d 448, 458 (2005).

2000See Eventyr J., 120 N.M. at 473 , 902 P.2d at 1076 (ruling that a parent was not deprived of her due process rights by the trial court taking judicial notice of prior adjudication because it based its decision on the evidence presented at termination hearing rather than relying upon prior adjudication). {36} We deem it important to note that this is not a ease in which the earlier finding of futility prejudiced Mother in any way, contrary to Mother’s arguments.

2000See Eventyr J., 120 N.M. at 473 , 902 P.2d at 1076 (ruling that a parent was not deprived of her due process rights by the trial court taking judicial notice of prior adjudication because it based its decision on the evidence presented at termination hearing rather than relying upon prior adjudication). {36} We deem it important to note that this is not a ease in which the earlier finding of futility prejudiced Mother in any way, contrary to Mother’s arguments.

1981The California Supreme Court has “recognized the futility of a rule requiring disclosure of the information which the police know about a material witness informer without a further requirement that the police make efforts to obtain information useful in locating the informer as well.” People v. Goliday, 8 Cal.3d 771, 778 , 106 Cal. Rptr. 113, 118 , 505 P.2d 537, 542 (1973).

1981The California Supreme Court has “recognized the futility of a rule requiring disclosure of the information which the police know about a material witness informer without a further requirement that the police make efforts to obtain information useful in locating the informer as well.” People v. Goliday, 8 Cal.3d 771, 778 , 106 Cal. Rptr. 113, 118 , 505 P.2d 537, 542 (1973).