State v. Gutierrez

819 P.2d 1332, 112 N.M. 774

• Court: New Mexico Court of Appeals
• Decided: May 14, 1991
• Docket: 12007
• Status: Published

Opinions

OPINION

CHAVEZ, Judge.

The state appeals the trial court’s order suppressing evidence as a result of the execution of a “no-knock” search warrant at the defendants’ residence. The sole issue on appeal is whether the evidence should have been admitted pursuant to the good faith exception to the exclusionary rule adopted by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In order to make this determination, we must decide whether to adopt the good faith exception pursuant to article II, section 10 of the New Mexico Constitution. We decline to adopt the exception and affirm the trial court’s order.

FACTS

Defendants were indicted on various drug charges. Officer Gandara was a member of the Albuquerque Police Department’s (APD) Valley Impact team. The Valley Impact Team primarily targets small street dealers of narcotics. As a result of an investigation of suspected drug activities at a Valley residence, which included a controlled buy of methamphetamine within 72 hours of the affidavit, Officer Gandara presented an affidavit for a search warrant to Judge Murdoch on August 4, 1989. The affidavit described the premises to be searched and alleged that drug trafficking was occurring at the residence. The affidavit concluded:

[Affiant] has learned through previous investigations and search warrants that when a search warrant for drugs is announced, the persons in possession of the drugs often destroyed the evidence before officers can enter. This is usually done by either swallowing or flushing the evidence. Based on this information, affiant requests that the search warrant be considered a no-knock warrant.

Apart from the assertion that drugs are often destroyed before officers can enter the premises, the affidavit did not state any specific facts suggesting Officer Gandara had any belief that drugs would be destroyed by these specific defendants.

Judge Murdoch issued a search warrant on August 4, 1989. The warrant authorized unannounced entry “for the protection of the officers and for the preservation of evidence.” On August 14,1989, officers of the Valley Impact Team executed the warrant at defendants' residence without knocking. Officers seized contraband at the residence. At the suppression hearing, Officer Gandara did not state any specific facts indicating that, at the time of the warrant's execution, officers were in danger or drugs would be destroyed. Rather, she expressed her belief that “no-knock” warrants may be issued based upon an officer’s previous experience. Officer Gandara stated she had a good faith belief that the warrant was valid.

The trial court granted defendants’ motion to suppress. In its letter decision, the trial court concluded that the United States and New Mexico Constitutions require an officer executing a warrant to knock and announce his purpose prior to entry absent exigent circumstances. The trial court also concluded that most jurisdictions do not allow a predetermination of exigent circumstances, and that there were insufficient exigent circumstances to permit a “no-knock” entry in this case.

DISCUSSION

In United States v. Leon, the Supreme Court adopted the good faith exception to the exclusionary rule. The trial court in Leon suppressed evidence found during the execution of a facially valid search warrant, because the affidavit did not establish the existence of probable cause. The Supreme Court reversed, concluding “that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” Id. at 922,104 S.Ct. at 3420. The Supreme Court held that the exclusionary rule does not bar evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. Id.; see also Massachusetts v. Sheppard, 468 U.S. 981, 987-88, 104 S.Ct. 3424, 3427-28, 82 L.Ed.2d 737 (1984). The Court reasoned that the exclusionary rule was designed to deter police misconduct rather than punish the errors of judges and magistrates. The trial court, in the case before us, concluded that the exception would apply if New Mexico had adopted the rule of Leon.

Justice White, writing for the Court, stated that whether the exclusionary rule should be applied should be determined by weighing the costs and benefits of preventing the use of inherently trustworthy tangible evidence obtained in reliance on a subsequently invalidated search warrant issued by a detached and neutral magistrate. United States v. Leon. The costs are the exclusionary rule’s “interference with the criminal justice system’s truth-finding function” and the consequence that “some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains.” Id. 468 U.S. at 907, 104 S.Ct. at 3412. Justice White concluded that the deterrent effect was “marginal or nonexistent” in cases of good faith reliance on invalid search warrants. Id. at 922, 104 S.Ct. at 3420.

Suppression remains appropriate under Leon in four situations. Id. at 923, 104 S.Ct. at 3421. One instance justifying suppression of evidence seized under a subsequently invalidated warrant is when the magistrate or judge was misled by information in the affidavit which the affiant knew was false or would have known was false except for a reckless disregard for the truth. Id.; Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). A second situation justifying suppression is when the issuing judge wholly abandons his judicial role. United States v. Leon, 468 U.S. at 923, 104 S.Ct. at 3421; Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979) (town justice became a member, if not the leader, of the search party).

Evidence may also be suppressed when the affidavit is so lacking in indicia of probable cause that official belief in its existence is entirely unreasonable. United States v. Leon; State v. Huft, 106 Wash.2d 206, 720 P.2d 838 (1986) (en banc) (“bare bones” affidavit not subject to rehabilitation by the good faith exception). Finally, a warrant may be so facially deficient in particularizing the place to be searched or the things to be seized that the executing officer cannot reasonably presume it to be valid. United States v. Leon, 468 U.S. at 923, 104 S.Ct. at 3421; cf Massachusetts v. Sheppard. We assume, without deciding, that the officers in this case exhibited objectively reasonable reliance on a warrant issued by a detached and neutral judge, and that none of the four exceptions stated in Leon are present.

New Mexico appellate courts have touched upon the Leon rule, but have not been presented with a proper opportunity to adopt or reject it. In State v. Herrera, 102 N.M. 254, 258 n. 1, 694 P.2d 510, 514 n. 1, cert. denied, 471 U.S. 1103, 105 S.Ct. 2332, 85 L.Ed.2d 848 (1985), the supreme court declined to address the good faith exception due to its disposition of the case. Similarly, in State v. Crenshaw, 105 N.M. 329, 334, 732 P.2d 431, 436 (Ct.App.1986), this court found it unnecessary to decide whether to adopt the good faith exception because the search warrant failed on the basis of a pre-warrant trespass by police. See United States v. Leon (state court in its discretion may resolve fourth amendment question before turning to good faith issue). In State v. Therrien, 110 N.M. 261, 794 P.2d 735 (Ct.App.1990), this court did not address the issue because it was not properly preserved. See also State v. Yazzie, 108 N.M. 677, 777 P.2d 916 (Ct.App.1989) (court did not find that officers had an objective basis for a good faith belief that their actions in arresting defendant were proper).

We are not convinced that the costs of excluding evidence obtained as a result of an invalid search outweigh the benefits. We believe the costs of the exclusionary rule, as stated by the Supreme Court, are substantially overstated, while the benefits of the rule are similarly understated. See 1 W. LaFave, Search and Seizure § 1.3 (2d ed. 1987).

Initially, we note that the state does not request review of the trial court’s finding that the “no-knock” warrant was invalid. The issue of whether a “no-knock” entry may be authorized in advance by warrant, based solely on the officers’ past experience and general knowledge in drug cases, does not appear to have been definitively addressed in New Mexico. Our cases hold that prior to forcible entry, the police must give notice of authority and purpose and be denied admittance. State v. Baca, 87 N.M. 12, 528 P.2d 656 (Ct.App.1974). An exception exists when exigent circumstances are present as when, prior to forcible entry, officers in good faith believe that they or someone in the house are in danger of bodily harm, or that the suspect is attempting to flee or destroy evidence. State v. Sanchez, 88 N.M. 402, 540 P.2d 1291 (1975); State v. Baca. The trial court found that there were insufficient exigent circumstances justifying a “no-knock” entry at the time of the search. In this case, the state concedes that at the time of the warrant’s execution, the officers did not have specific facts showing defendants would be likely to dispose of their drugs.

There is nothing in SCRA 1986, 5-211 suggesting that a magistrate or judge may predetermine the existence of exigent circumstances and authorize execution of a warrant without knocking. The prevailing view appears to be that such warrants are invalid absent statutory authorization. See 2 W. LaFave, Search & Seizure § 4.8(g); State v. Eminowicz, 21 Ariz.App. 417, 520 P.2d 330 (1974); compare State v. Cleveland, 118 Wis.2d 615, 348 N.W.2d 512 (1984). However, we note that in Sanchez, the supreme court approved a “no-knock” entry based, in part, on the officers’ probable cause to believe that defendant was selling heroin and from their experience that persons normally attempt to get rid of the drugs prior to entry by the police. See also State v. Anaya, 89 N.M. 302, 551 P.2d 992 (Ct.App.1976) (exigent circumstances based, in part, on officers’ experience that heroin is often disposed of by flushing it down the toilet). The supreme court in Sanchez did not decide whether the officer’s general experience with drug searches would have been sufficient by itself to justify a “no-knock" entry. Nor did the supreme court definitively state that exigent circumstances could not be predetermined by resort to an affidavit for search warrant. But see State v. Sanchez (Sosa, J., dissenting) (exigent circumstances can only manifest themselves at time officers appear for the search and should be judged by what a prudent officer sees and hears at that time).

Given the state’s failure to challenge the trial court’s conclusion that “no-knock” warrants are not authorized by New Mexico law, we do not offer an opinion on whether the predetermination of exigent circumstances based solely on the officer’s prior experience in drug cases invalidated the warrant. However, we do believe there was support for the trial court’s finding that officers acted in good faith since it is not entirely clear from a reading of Rule 5-211, Sanchez, and other New Mexico cases that exigent circumstances may not be predetermined based upon an officer’s prior experience. See State v. Sanchez (trial court’s determination of “good faith belief” and “exigent circumstances” will be upheld if supported by substantial evidence).

The Supreme Court’s opinion in Leon starts from the premise that the cost of the exclusionary rule is that some guilty defendants go free or receive favorable plea bargains. United States v. Leon, 468 U.S. at 907, 104 S.Ct. at 3412; see also Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). We are also mindful that our own supreme court has severely criticized the exclusionary rule because of “its harsh impact on society.” State v. Snedeker, 99 N.M. 286, 289, 657 P.2d 613, 616 (1982); see also State v. Rascon, 89 N.M. 254, 261, 550 P.2d 266, 273 (1976) (federal constitutional law as announced by United States Supreme Court applied to suppression of evidence). On the other hand, we take note of the more recent case of State v. Cordova, 109 N.M. 211, 784 P.2d 30 (1989), in which our supreme court departed from United States Supreme Court case law in interpreting article II, section 10 of the New Mexico Constitution. In Cordova, the supreme court construed article II, section 10, as affording defendants greater protection than the federal constitution.

Justice Brennan notes in his dissent in Leon that there is scant empirical support for the proposition that large numbers of guilty defendants go free as a result of the exclusionary rule. United States v. Leon, 468 U.S. at 907 n. 6, 104 S.Ct. at 3412 n. 6 (Brennen, J. dissenting); People v. Sundling, 153 Mich.App. 277, 395 N.W.2d 308 (1986); Stringer v. State, 491 So.2d 837 (Miss.1986) (Robertson, J., concurring). In fact, the data suggests that the loss in felony case prosecution because of prosecutor screening, police releases, and court dismissals attributable to evidence seized in violation of the Fourth Amendment is from O.6% to 2.35%. Davies, A Hard Look at What We Know (and Still Need to Learn) About the “Costs” of the Exclusionary Rule: The NIJ Study and Other Studies of “Lost” Arrests, 1983 Am.B.Found.ResJ. 611, 621. Given the lack of evidence demonstrating that the exclusionary rule sets the guilty free, we question the utility of the good faith exception.

Similarly, we believe the benefits of the exclusionary rule have been understated. See 1 W. LaFave Search & Seizure § 1.3(d). We are convinced that adoption of a good faith exception would remove incentives for police to discover the sort of conduct constituting unreasonable invasions of privacy. State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990); State v. Novembrino, 105 N.J. 95, 519 A.2d 820 (1987). The exception might also effectively remove the requirement of probable cause from the warrant process since police could always claim they acted in reasonable reliance on a warrant.

We agree with the court’s statement in People v. David, 119 Mich.App. 289, 326 N.W.2d 485, (1982):

Such a holding would, in effect, remove the probable cause requirement from the Fourth Amendment. A ‘good-faith’ exception to the exclusionary rule would insulate the magistrate’s decision to grant a search warrant from appellate review. In every case where a constitutionally infirm search warrant was issued, the prosecution could reasonably claim that the police acted in good faith. In effect, the constitutional language that all warrants be issued only on a showing of probable cause would become a nullity.

Furthermore, adoption of a ‘good-faith’ standard would remove the incentive for police officers to find out what sort of police conduct constitutes an unreasonable invasion of privacy. On a police force, efficiency in obtaining convictions is rewarded so recognition of a good-faith exception to the warrant requirement would encourage police officers to remain ignorant of the law in order to garner more evidence and obtain more convictions. The end result, increased illegal police activity, is the very problem that the exclusionary rule is designed to avert.

Id. at 297-98, 326 N.W.2d. at 488-89; see also State v. Marsala; State v. Novembrino; People v. Bigelow, 66 N.Y.2d 417, 488 N.E.2d 451, 497 N.Y.S.2d 630 (1985).

Also minimized by the Leon majority is the effect of the exclusionary rule on judges and magistrates. Justice White wrote under the premise that “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates,” and that there is “no basis ... for believing that exclusion of evidence ... will have a significant deterrent effect on the issuing judge or magistrate.” United States v. Leon, 468 U.S. at 916, 104 S.Ct.- at 3417. “Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” Id. at 921, 104 S.Ct. at 3419.

Notwithstanding Leon, we believe the exclusionary rule is also directed at the warrant-issuing process as a whole. See State v. Marsala. In Weeks v. United States, 232 U.S. 383, 394, 34 S.Ct. 341, 345, 58 L.Ed. 652 (1914), the Supreme Court stated that “the Fourth Amendment was intended to secure the citizen in person and property against unlawful invasion of the sanctity of his home by officers of the law acting under legislative or judicial sanction.” The pre-Leow exclusionary rule likely encouraged magistrates to appreciate the seriousness of ensuring that warrants issued only upon a showing of probable cause. State v. Marsala. Suppression of evidence seized pursuant to a search warrant issued on less than probable cause alerts the magistrate that a constitutional error has occurred and instructs him on how to avoid future errors. Id.

The exclusionary rule encourages law enforcement officers to comply with the probable cause standard. State v. Novembrino. If evidence is excluded, even when the officer acts on the basis of a reasonable but mistaken belief that his conduct is authorized, police agencies will be encouraged to instruct their officers to take great care when applying for a warrant. State v. Marsala; State v. Greene, 162 Ariz. 383, 783 P.2d 829 (Ct.App.1989) (ends of the exclusionary rule furthered where future negligent departmental practices deterred). In the long run, the integrity of the entire warrant-issuing process will be served. We cannot agree with the Supreme Court that this benefit is “marginal or nonexistent.” On the other hand, “[b]y eliminating any cost for noncompliance with the constitutional requirement of probable cause, the good-faith exception assures us that the constitutional standard will be diluted.” State v. Novembrino, 105 N.J. at 129, 519 A.2d at 854.

In conclusion, we believe Leon’s good faith exception swallows the requirement that warrants issue only upon a showing of probable cause. It is also apparent that the costs to society from the exclusionary rule have been exaggerated. Therefore, we hold that there is no good-faith exception to the exclusionary rule under article II, section 10 of the New Mexico Constitution. The trial court’s order of suppression is affirmed.

IT IS SO ORDERED.

ALARIO, C.J., concurs. BIVINS, J., dissents.