State v. Ulibarri

2010 NMCA 084, 240 P.3d 1050, 148 N.M. 576
CourtNew Mexico Court of Appeals
DecidedJuly 8, 2010
Docket28,179; 32,511
StatusPublished
Cited by4 cases

This text of 2010 NMCA 084 (State v. Ulibarri) 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.

Bluebook
State v. Ulibarri, 2010 NMCA 084, 240 P.3d 1050, 148 N.M. 576 (N.M. Ct. App. 2010).

Opinion

OPINION

CASTILLO, Judge.

{1} Defendant Kenneth Ulibarri was charged by information with six counts of criminal misconduct including trafficking of a controlled substance, possession of a controlled substance, and possession of drug paraphernalia. Defendant filed a motion to suppress the evidence obtained from the search of the home he shared with his grandfather, Joe Roybal (Mr. Roybal). Defendant asserted that his Fourth Amendment rights were violated when the officers forcibly entered the home without waiting a reasonable time after knocking and announcing. The district court denied the motion. Defendant appeals, and we reverse.

I. BACKGROUND

{2} At the hearing on Defendant’s motion to suppress, four persons testified: three of the officers who executed the warrant and Mr. Roybal. A summary of the relevant testimony follows. Defendant, his girlfriend, and her mother were the targets of an undercover investigation into activities related to drug trafficking. The officers obtained a search warrant for the home. Mr. Roybal was seventy-nine years old at the time of the hearing and was neither a suspect of the investigation nor suspected of wrongdoing of any kind. Shortly after Defendant and his girlfriend were arrested, the officers executed the warrant. The lead officer was aware at the time of the search that neither Defendant nor any other individual targeted in the investigation was in the home and that only Defendant and Mr. Roybal lived there.

{3} The search began at about 10:00 p.m. Eight officers were mobilized; four were stationed at the front door and four at the back. The officers knocked and announced their presence; they heard no reply of any sort from within. After waiting ten to twelve seconds, the lead entry officer ordered his team to break a window as a distraction and force entry using a battering ram. As the door swung inward, it hit Mr. Roybal, knocking him to the ground and causing him injuries.

{4} Mr. Roybal testified that he was in his recliner watching TV when he heard a light knock on his door. He explained that he got up and approached the door when it suddenly came open and struck him on the head, rendering him temporarily unconscious. He estimated that it took him ten seconds or less to get from the recliner to the door. There was also testimony as to recorded conversations at the jail between Defendant and Mr. Roybal during which they discussed the time between the knock and announce and the forced entry.

{5} In its order denying the motion, the district court adopted the State’s proposed findings and conclusions. The findings adopted summarized the account of the testimony elicited at the suppression hearing: (1) the search was conducted pursuant to a valid warrant; (2) Defendant resided with Mr. Roybal; (3) two teams of officers assembled at each of the home’s two entry ways; (4) numerous officers knocked and announced; (5) the entry team testified that they forced entry after waiting ten to twelve seconds; and (6) Mr. Roybal testified that the wait between the knock and entry was between five and ten seconds, but on cross examination he admitted that he had told Defendant during a tape-recorded conversation at the San Miguel County Detention Center that the time was between thirty seconds and a minute. In the adopted conclusions, the district court determined that “[u]nder the totality of the circumstances ..., it was reasonable for the officers to believe that they were being denied entrance after at least ten to twelve seconds and as much as thirty seconds” after the knock and announce.

{6} Following the denial of the motion, Defendant entered into a conditional plea and disposition agreement. He pled guilty to possession of cocaine and heroin, admitted to two prior felony convictions, and reserved his right to appeal the district court’s denial of the motion to suppress.

II. DISCUSSION

{7} When we review a court’s denial of a motion to suppress, “[w]e view the facts in the manner most favorable to the prevailing party and defer to the district court’s findings of fact if substantial evidence exists to support those findings.” State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. “All reasonable inferences in support of the district court’s decision will be indulged in, and all inferences or evidence to the contrary will be disregarded.” State v. Jason L., 2000-NMSC-018, 1110, 129 N.M. 119, 2 P.3d 856 (alterations omitted) (internal quotation marks and citation omitted). Whether a search or seizure is reasonable is a mixed question of fact and law because determinations of reasonableness require both factual determinations and reasoned judgment. State v. Attaway, 117 N.M. 141, 145-46, 870 P.2d 103, 107-08 (1994), modified on other grounds by State v. Lopez, 2005-NMSC-018, ¶ 8, 138 N.M. 9, 116 P.3d 80. We review those questions de novo. Id.; Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964 (indicating that search and seizure issues and determinations of reasonable suspicion are mixed questions of fact and law that should be reviewed de novo).

{8} We first address the evidence supporting the district court’s adopted finding and related conclusion-that the officers waited “as much as thirty seconds” after the knock and announce. We observe that Mr. Roybal admitted on cross-examination that he had made this estimation during a taped conversation with Defendant at the jail, but on direct, he testified that the time period was between five and ten seconds. The officers testified that the relevant time period was between ten and twelve seconds. The State makes no argument that the thirty-second estimation should be used as evidence in this case and relies solely on the testimony of the officers that ten to twelve seconds elapsed between the knock and announce and forced entry. Accordingly, our analysis is based on a time period of between ten and twelve seconds as this time period is supported by substantial evidence.

{9} “In New Mexico, law enforcement officers are constitutionally required to knock and announce their identity and purpose, and wait a reasonable time to determine if consent to enter will be given prior to forcefully entering a [dwelling] in order to execute a search warrant.” State v. Johnson, 2006-NMSC-049, ¶ 10, 140 N.M. 653, 146 P.3d 298 (alteration in original) (internal quotation marks and citation omitted). “The rule is part of the constitutional protections against unreasonable searches and seizures embodied in article II, section 10 of the New Mexico Constitution ] and the Fourth Amendment to the United States Constitution.” State v. Vargas (Vargas II), 2008-NMSC-019, ¶ 11, 143 N.M. 692, 181 P.3d 684 (citations omitted). “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.

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Bluebook (online)
2010 NMCA 084, 240 P.3d 1050, 148 N.M. 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ulibarri-nmctapp-2010.