January 14, 2019- State of New Mexico v. Jimmy Johnson, No. A-1-CA-37488

OCR transcription for search; preserved printed pages are authoritative

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Filed 1/14/2019 11:39 AM

STATE OF NEW MEXICO,
Me 4
Plaintiff-Appellant, Mark Reynolds |
v. No. A-1-CA-37488
JIMMY JOHNSON,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY

Albert J. Mitchell, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

M.

Anne Kelly, Assistant Attorney General

Albuquerque, NM

for Appellant

Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Public Defender
Santa Fe, NM

for Appellee

MEMORANDUM OPINION

VANZI, Chief Judge.

{}}

The State has appealed from an order of suppression. We previously issued a

notice of proposed summary disposition, proposing to affirm. The State has filed a

memorandum in opposition. After due consideration, we remain unpersuaded by its

assertions of error. We therefore affirm.

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{2} To briefly reiterate the relevant background, police obtained a warrant
authorizing a search of Defendant’s residence after a confidential informant
completed several controlled purchases of methamphetamine there. [RP 226] In the
supporting affidavit, the officer indicated that the confidential informant had
observed Defendant to be in possession of both a quantity of methamphetamine and
a semi-automatic pistol within the preceding 72 hours. [Id.] Additionally, the affiant
indicated that a state police officer had advised that he had “recently responded to a
call for service where [Defendant] threatened another individual with a firearm.” [Id.]
In light of this information, the affiant specifically requested that a “no-knock entry
be authorized due to concern that the known occupants of the residence are armed and
dangerous.” [Id.] That request was granted. [RP 220] Police officers executed the
search six days after the warrant was issued. [RP 221] Although they seized numerous
items consistent with drug trafficking, no firearms were found. [RP 221-23]

{3} Defendant moved to suppress all items recovered in the course of the search
on grounds that the officers’ failure to knock and announce prior to entry was
unjustified. [RP 79-86] The district court ultimately agreed. [RP 197-99] This
determination is the subject of the instant appeal.

(44 “Absent various exceptions, Article II, Section 10 of the New Mexico

Constitution requires officers executing a warrant at a premises to knock and

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announce their presence and authority and then wait a reasonable time to permit those
inside to voluntarily open the door.” State v. Jean-Paul, 2013-NMCA-032, ¥ 1, 295
P.3d 1072. One exception applies when there are exigent circumstances, such as in
situations involving specific information indicating that the danger to the officers
executing the warrant will be increased if the officers comply with the knock-and-
announce rule. /d. J 10. “[The] court must look to the totality of the circumstances at
the time of entry from the point of view of a reasonable, well-trained, and prudent
police officer to decide whether the officer had a reasonable belief that there were
exigent circumstances.” Jd. J 11. The reasonableness of an officer’s belief in this
regard “requires 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.” Jd. (internal
quotation marks and citation omitted).

{5} Insofar as district court rejected the State’s claim of exigency, this Court must
view the facts in the light most favorable to that ruling and indulge in all reasonable
inferences accordingly. See State v. Lopez, 2005-NMSC-018, Jf 9, 22, 138 N.M. 9,
116 P.3d 80 (discussing and applying the standard of review in this context).
Although the State briefly suggests in its memorandum in opposition that this

approach does not give adequate deference to the issuing court’s earlier

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determination, [MIO 2, 13] insofar as we are called upon to review a suppression
order based upon consideration of the circumstances present at the time of entry, we
remain of the opinion that Lopez is the controlling authority. See id. § 12 (indicating
that where a no-knock entry is at issue, “[t]he appellate court must consider all of the
circumstances as found or impliedly found by the trial court to be present at the time
of entry.”); State v. Williams, 1992-NMCA-106, ff 3, 16-18, 114.N.M. 485, 840 P.2d
1251 (holding that regardless of the issuance of a no-knock search warrant, if exigent
circumstances have not been established at the time of entry, failure to comply with
the knock and announce rule in executing a search warrant invalidates the subsequent
search).

{6} In light of the foregoing, we accept the district court’s determination that
officers who executed the warrant had reason to believe that Defendant was in
possession of methamphetamine and a semi-automatic pistol, [RP 197] and we take
into consideration the time of the entry, at 6:25 a.m. in the morning six days after the
warrant was issued and nine days after the firearm was seen by the confidential
informant. [RP 197-98] We also acknowledge the district court’s rejection of the
proffered evidence of propensity for violence, including the vague and
unsubstantiated information about the “call for assistance” allegedly involving

Defendant. [RP 198] We similarly accept the district court’s determination that there

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was “no indication that [D]efendant had a willingness to use the pistol.” [RP 198] We
take all of these facts into consideration in determining whether exigent
circumstances existed under the totality of the circumstances.

{7} As we observed in the notice of proposed summary disposition, we have a
number of published cases dealing with claims of exigency, where officers have
reason to believe drugs and firearms are present. In Lopez, our New Mexico Supreme
Court upheld a finding of exigent circumstances based on a reasonable suspicion of
increased danger to officers, when the officers had information that there were two
to four people in the residence with access to multiple firearms including automatic
weapons and sawed-off shotguns, and that one of the residents was a drug dealer, and
when the warrant was executed in the afternoon, thereby lessening the degree of
intrusion but increasing the risk to officer safety. 2005-NMSC-018, 4f 25-26. In State
v. Vargas, 1996-NMCA-016, 9 9, 13, 121 N.M. 316, 910 P.2d 950, this Court
similarly upheld a finding of exigent circumstances based on a reasonable suspicion
of increased danger to officers, when the officers had information that the defendants
were involved in dealing drugs, that both were gang members and carried weapons,
that one of the defendants had threatened police, and that during numerous police
dispatches to the defendants’ residence over the prior ten years, the defendants and

other residents had a propensity to behave violently and to challenge the police.

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Finally, in State v. Attaway, 1994-NMSC-01 1, 9 32-34, 117N.M. 141, 870 P.2d 103,
our Supreme Court upheld a finding of exigent circumstances based on a reasonable
suspicion of increased danger to officers, when the officers had information that the
defendant was a drug user and dealer, that he had previously been convicted of
weapons and drug charges, that he possessed a large arsenal of weapons including an
automatic weapon and a number of other guns, and he in the past had threatened
police officers.

{83} Collectively, the foregoing authorities reflect the significance of a
particularized showing of danger, under the totality of the circumstances. Conversely,
in the absence ofa reasonably particularized showing of danger, generalized concerns
are typically deemed inadequate to establish the exigency required to support no-
knock entries. For example, in Williams, 1992-NMCA-106, §§ 16-17, we affirmed
the district court’s finding of no exigent circumstances, where the officers believed
that the occupants were drug dealers and that drug dealers are generally armed, but
“there was no evidence at the time of execution of the search warrant indicating that
anyone threatened the officers or that they were placed in fear by persons either inside
or outside the residence.”

(93 In this case, viewing the evidence and the inferences therefrom in the light

most favorable to the district court’s ruling, the only indicia of dangerousness

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included Defendant’s drug trafficking and the confidential informant’s observation
of a firearm in the residence nine days earlier. In contrast to the cases upholding
findings of exigent circumstances, there were no indications of numerous firearms
within the residence. And as previously stated, the district court specifically rejected
the claim of demonstrated propensity for violence, based on the vague and
unsubstantiated nature of the information concerning the call for assistance, and in
the absence of any evidence of prior convictions for crimes of violence or historical
willingness to threaten the police or to use firearms. [RP 198] See Lopez,
2005-NMSC-018, § 9, (observing that in this context, “[a]ll reasonable inferences in
support of the district court’s decision will be indulged, and all inferences or evidence
to the contrary will be disregarded”); Attaway, 1994-NMSC-011, 75 (“[A] trial court
is to be given wide latitude in determining [whether] an historical fact has been
proven.”). We remain of the opinion that these circumstances render the case far more
analogous to Williams than Lopez, Vargas, or Attaway. Accordingly, we conclude
that the no-knock entry was impermissible.

{10} In its memorandum in opposition the State argues that our focus is misplaced,
urging us instead to overturn the district court’s decision on grounds that it was
unduly concerned about delay in the execution of the warrant. [MIO 2, 6-14] We

remain unpersuaded. The fundamental question is whether the circumstances at the

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time of entry justified dispensing with the knock and announce requirement. For the
reasons previously stated, we conclude that this question is answered in the negative.
In so concluding, it is not necessary to give additional consideration to the delay in
the execution of the warrant. We therefore decline to consider further whether the
delay is of special significance. See State v. Martinez, 2015-NMCA-013, § 18, 343
P.3d 194 (observing parenthetically that we avoid rendering advisory opinions, and
declining on that basis to resolve a novel and unnecessary question).

{11}. Accordingly, for the reasons stated in the notice of proposed summary
disposition and above, we affirm.

2} ITISSO ORDERED.

“ada ouns

LINRAM. YANZI, Chief Judge

WE CONCUR:

UU

M. MONICA ZAMORA, Judge

JULIE J. VARGAS, Judge