State v. Barela
This text of State v. Barela (State v. Barela) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellant,
9 v. NO. 29,995 10 11 JOHNNY BARELA,
12 Defendant-Appellee,
13 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 14 Charles Cruse Currier, District Judge
15 Gary K. King, Attorney General 16 Santa Fe, NM
17 James W. Grayson, Assistant Attorney General 18 Albuquerque, NM
19 for Appellant
20 Jesse R. Cosby 21 Roswell, NM
22 for Appellee
23 MEMORANDUM OPINION
24 FRY, Chief Judge.
25 The State contends the district court improperly granted Defendant’s motion to
26 suppress based on officers’ violation of the knock and announce requirement. We 1 issued a calendar notice proposing to affirm and the State timely filed a memorandum
2 in opposition. We remain unpersuaded and affirm.
3 The State does not appear to contest the facts as outlined in our proposed
4 disposition. Officers received a tip from a paid informant that Defendant was
5 trafficking in heroin. [RP 59; 100-101] After obtaining a search warrant [RP 56],
6 five officers went to Defendant’s home to execute it. The officers approached the
7 house, announcing their presence and entering the home without knocking. [DS 3; RP
8 101] A belt recording indicates six seconds elapsed from the time they began to
9 approach the house to the time officers smashed open the front door. [Id.; MIO 6]
10 At the hearing on Defendant’s motion to suppress, one officer testified that the
11 warrant execution had been considered “high risk.” He also testified that warrants
12 involving drugs are often considered “high risk” because drugs are easily disposed of
13 and the people involved with drugs are often armed. [Id.] No other testimony was
14 offered indicating the existence of any other exigent circumstances. [RP 101-102]
15 The district court granted Defendant’s motion to suppress, finding the search
16 unreasonable because officers had violated the knock and announce requirement.
17 The State argues that the classification of the warrant as “high risk” was
18 sufficient to justify the suspension of the knock and announce requirement and that
2 1 officers need not knock if they have been previously announcing their presence. [DS
2 4; MIO 8] We disagree.
3 The standard of review for suppression rulings is whether the law was correctly
4 applied to the facts, viewing them in a manner most favorable to the prevailing party.
5 State v. Hand, 2008-NMSC-014, ¶ 6, 143 N.M. 530, 178 P.3d 165. We review the
6 district court’s purely factual assessments to determine if they are supported by
7 substantial evidence and then review the constitutional question of whether the search
8 and seizure was reasonable under those particular facts de novo. Id.
9 We note this case is similar to our recent published opinion in State v. Gonzales,
10 2010-NMCA-023, ¶ 22, ___ N.M. ___, ___ P.3d ___ (filed 2009) (No. 28,411, Dec.
11 21, 2009) (upholding a district court’s grant of a motion to suppress where officers
12 battered open the defendant’s door after an eight second delay as measured by an
13 officer’s belt recording). As outlined in that case, “[t]he knock and announce rule
14 requires that officers entering a residence to execute a search or arrest warrant knock
15 and announce their identity and purpose and then wait a reasonable time to determine
16 whether consent to enter will be given.” Id. ¶ 1; see State v. Vargas, 2008-NMSC-
17 019, ¶ 9, 143 N.M. 692, 181 P.3d 684; State v. Lopez, 2005-NMSC-018, ¶¶ 13-20, 138
18 N.M. 9, 116 P.3d 653. There are no bright-line rules establishing how long officers
19 must reasonably wait; we consider the totality of the circumstances to determine
3 1 whether the officers’ wait was long enough. Gonzales, 2010-NMCA-023, ¶ 5; see
2 Hand, 2008-NMSC-014, ¶ 7. Those circumstances can include whether the
3 defendant’s behavior indicated some sort of constructive refusal of entry or the
4 existence of exigent circumstances. Gonzales, 2010-NMCA-023, ¶¶ 6- 7.
5 The State argues that this case should be distinguished from Gonzales because
6 of the existence of exigent circumstances in the current case. [MIO 5-6] We disagree.
7 “We review the sufficiency of exigent circumstances by determining whether a
8 reasonable, well-trained, and prudent police officer could conclude that swift action
9 was necessary.” State v. Ortega, 117 N.M. 160, 162, 870 P.2d 122, 124 (1994)
10 (internal quotation marks and citation omitted). The mere potential for destruction of
11 evidence does not in itself give rise to any exigency. Id.
12 Here, no specific evidence was offered that Defendant’s behavior indicated he
13 intended to refuse entry, destroy evidence, or that any other exigent circumstances
14 existed justifying the officers’ failure to knock and announce their presence. The only
15 evidence offered appears to have been a general assertion search warrants for drug
16 traffickers are “high risk” by their very nature. [RP 101-02] Nothing was offered
17 indicating the search of Defendant’s home specifically constituted any special risk.
18 [Id.] In fact, the district court specifically found that there was no evidence that the
19 occupants in the home were destroying evidence after the police announced their
4 1 presence. [RP 120] See State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986
2 P.2d 482 (recognizing that it is for the fact-finder [in this case, the judge] to resolve
3 any conflict in the testimony of the witnesses and to determine where the weight and
4 credibility lay); State v. Cline, 1998-NMCA-154, ¶ 6, 126 N.M. 77, 966 P.2d 785
5 (reiterating that in a motion to suppress we view the facts in the light most favorable
6 to the prevailing party). We agree with the district court that the mere assertion that
7 all drug cases may involve a higher risk is insufficient to justify the suspension of the
8 knock and announce requirement. See Gonzales, 2010-NMCA-023, ¶¶ 20-21
9 (reiterating general concerns are insufficient to dispense with the requirements of the
10 knock and announce rule).
11 Moreover, we decline the State’s invitation to adopt an “announce only” rule
12 for “high risk” warrants. [DS 4; MIO 8] Supreme Court case law clearly requires all
13 three prongs of the knock and announce rule be met, absent specific circumstances
14 justifying an exception. See id. ¶ 16 (“Absent exigent circumstances, officers must
15 knock and announce their purpose and identity, then wait a reasonable period of time
16 to determine if consent to enter will be given before forcefully entering.”) (emphasis
17 omitted) (internal quotation marks and citation omitted). Regardless of how other
18 jurisdictions may interpret the knock-and-announce rule, this Court is bound by our
19 Supreme Court’s precedent. State v. Travarez, 99 N.M. 309, 311, 657 P.2d 636, 638
5 1 (Ct.
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