November 01, 2012 – State of New Mexico v. Gregg Crocco, No. 31,498

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: November 1, 2012

NO. 31,498

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

GREGG CROCCO,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
Louis P. McDonald, District Judge

Gary K. King, Attomey General

Margaret McLean, Assistant Attomey General
Santa Fe, NM

for Appellee

Anthony J. Ayala
Albuquerque, NM

for Appellant

OPINION
SUTIN, Judge.
{1} 	Following a warrantless police entry into a private residence, Defendant Gregg
Crocco was arrested and charged with aggravated driving while intoxicated, contrary
to NMSA 1978, Section 66-8-102(D)(1) (2008) (amended 2010). His trial counsel did
not move to suppress evidence that resulted from the warrantless entry. Defendant
was convicted and he appeals, arguing, among other things, that the police made an
unconstitutional warrantless entry into the residence and that his counsel was
ineffective for failing to move to suppress the evidence obtained as a result. We hold
that Defendant has made a prima facie showing of ineffective assistance of counsel
based on his counsel’s failure to move to suppress evidence gained from the
warrantless entry. We reverse Defendant’s conviction and remand for a new trial.
BACKGROUND
{2} 	Officer Charles Weaver of the City of Rio Rancho, New Mexico, Police
Department was dispatched to 1584 15th Avenue in Rio Rancho, in response to a 911
call that “an individual . . . had [driven] to a residence on 15th Avenue, driven in the
front yard, hit some property, and had entered a residence. The [occupants of which]
did not know him, and the subject then left.” The individual was later identified as
Defendant. Having obtained fragments of a license plate number and a description of

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the vehicle, a green Ford Explorer, Officer Weaver began looking one street over, on
14th Avenue, from the address of the original incident. 	He immediately located a
vehicle that matched the description he had received. The vehicle was parked on the
street in front of 1690 14th Avenue. A registration inquiry of the vehicle, returned
Defendant’s name and an address in Corrales, New Mexico.
{3} 	Based on his observation that the vehicle was “very warm to the touch” and
based on the fact that it matched the description he had received from dispatch,
Officer Weaver called for his back up officer, Sean Ginn. Officer Weaver then looked
inside the vehicle and observed a pint-size bottle of vodka, empty except for a small
amount of clear liquid. 	When Officer Ginn arrived, Officer Weaver focused his
attention on the residence in front of which the vehicle was parked.
{4} 	As to his next steps, Officer Weaver testified as follows:
I proceeded to the front of [the] residence, 1690 14th Avenue. Officer
Ginn was with me. We were observing the exterior of the residence. We
then went up to the front door of the residence. 	I was somewhat
concerned, given the totality of the call that we were on, as far as the
person reportedly had entered a residence that he was not known to
be—wasn’t supposed to be there. People didn’t know him. So I didn’t
know 	what 	this 	individual’s 	intentions 	were 	that 	had 	made
that—approached the original caller, so I went up to that house, now at
1690 14th Avenue, rang the doorbell several times, knocked on the door
to attempt to get somebody to come out.
Officer Weaver testified that he did not hear or see anything, and that there were no
signs of movement inside the house. The door was unlocked and, having opened it,

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Officers Weaver and Ginn announced themselves as police officers. 	From the
threshold of the front door, they could see a pair of legs sticking out as though they
were on a couch in the living room toward the back of the house. Officer Weaver then
“directed [his] announcements in [the] direction” of the legs. He “got no response at
all[,]” and he “didn’t see any signs of movement from the legs.” The officers entered
the house and “slowly continued through the house” toward the legs. Officer Weaver
testified that “[w]e . . . cleared our way back to where the legs were at. They belonged
to [Defendant].”
{5} 	According to Officer Weaver, he and Officer Ginn “entered . . . the residence
in order to identify the occupants of the home and any other problems that were going
on there, because [he] was concerned at that point in time for the safety of the folks
within.” Officer Ginn offered a similar account of their reason for entering the house.
He testified that “[b]ased on the . . . information that [Defendant] had entered a home
that was not his, we felt it was up to us to check the safety of the occupants inside the
home[.]”
{6} 	While Officer Ginn “clear[ed] the rest of the house for other occupants[,]”
Officer Weaver stayed with Defendant. The officer “tried waking him up, yelling at
him, [and] shaking him.” To Officer Weaver, “[i]t was clear . . . that [Defendant] was
sleeping or passed out, and he exhibited extreme signs of intoxication.” After “several

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moments[,]” Defendant woke. Officer Weaver testified that he tried to ask Defendant
whether he lived in the house and whether he knew whose house it was but, aside
from yelling profanities, Defendant responded initially by “just staring” at the officer.
“[B]ecause of his mannerisms, because of his screaming profanities and not being
cooperative, [Officer Weaver] placed [Defendant] in handcuffs[.]”
{7} 	Defendant told Officer Weaver that the house belonged to somebody named
Michael. 	Officer Weaver found some mail on the kitchen counter addressed to
“Michael” so he “was somewhat relieved that [Defendant knew] the name of the
individual there.” Defendant did not respond to Officer Weaver’s inquiries regarding
whether he had permission to be in the house or whether the residents of the house
knew he was there. Officer Weaver took Defendant out of the residence and placed
Defendant in his patrol car “so as to continue the investigation.” “Ultimately,” Officer
Weaver testified, “based on the information that [he and Officer Ginn] had that
warranted [a driving while intoxicated] investigation[,]” he contacted an officer from
the DWI unit to further conduct such an investigation.
{8} 	Officer Joel Holt, of the DWI unit, administered a series of field sobriety tests
upon Defendant. Based on his observations of Defendant’s performance on the field
sobriety tests, as well as the information he had received from the other two officers,
Officer Holt determined that Defendant was impaired, and he placed Defendant under

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arrest for driving while intoxicated. At the police station, Defendant submitted two
breath samples, the results of which revealed Defendant’s breath alcohol content to
be .26 and .27, more than twice the legal limit.
{9} 	Following a bench trial, Defendant was convicted of aggravated driving while
intoxicated. After trial, but before sentencing, Defendant moved for and was granted
leave to substitute his counsel in this matter. Through his new counsel, Defendant
moved to set aside the verdict or for a new trial. Defendant’s motion was based on
ineffective assistance of counsel, particularly the failure of his trial counsel to move
to suppress evidence that was, in Defendant’s view, “obtained following an illegal
entry and search of a home where [D]efendant was allowed to stay.”
{10} 	The district court held a hearing on Defendant’s motion for a new trial based
on ineffective assistance of counsel. The court denied the motion based, in part, on
the absence in the record of any evidence of Defendant’s standing to object to the
warrantless entry. Additionally, the court found that:
[the officers’] entry into the home was reasonable, not only for officer
safety, because I don’t believe they really felt they were in danger, but
more of the safety of any potential occupants of this residence, because
they already had a report where someone had entered the wrong
residence. 	And their continued investigation into the DWI was also
reasonable based upon information that they had at the time.

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{11} 	Defendant was sentenced in accordance with the guilty verdict, and he appeals
from the final judgment and sentence. 	On appeal, Defendant argues that his trial
counsel was ineffective because he did not move to suppress evidence on the grounds
that the warrantless police entry into the house in which Defendant was arrested
violated the United States and New Mexico Constitutions. He presents an argument
encompassing the evidentiary and legal support for a motion to suppress which, in his
view, establishes a prima facie case of ineffective assistance of counsel. 	And he
requests that we order the evidence suppressed and reverse his conviction.
{12} 	Contrary to the district court’s conclusion that Defendant’s motion for a new
trial based on ineffective assistance of counsel was “not well-taken,” we hold that
Defendant has made a prima facie showing of ineffective assistance of counsel based
on his trial counsel’s failure to move to suppress evidence based on the warrantless
police entry into the residence. 	We reverse Defendant’s conviction. 	Defendant is
entitled to a new trial. Because we reverse Defendant’s conviction on this basis, we
do not consider Defendant’s remaining arguments.
DISCUSSION
{13} 	The Sixth Amendment to the United States Constitution guarantees the right to
the effective assistance of counsel. Patterson v. LeMaster, 2001-NMSC-013, ¶ 16,
130 N.M. 179, 21 P.3d 1032. “We review claims of ineffective assistance of counsel

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de novo.” State v. Dylan J., 2009-NMCA-027, ¶ 33, 145 N.M. 719, 204 P.3d 44. To
evaluate a claim of ineffective assistance of counsel, we apply the two-part test in
Strickland v. Washington, 466 U.S. 668, 687 (1984). 	Dylan J., 2009-NMCA-027,
¶ 36.
{14} 	The first requirement of the Strickland test is a showing by the defendant “that
counsel’s performance was deficient” that is, “that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687. Second, “the defendant must show that
the deficient performance prejudiced the defense[,]” which “requires showing that
counsel’s errors were so serious as to deprive the defendant of . . . a trial whose result
is reliable.” 	Id. 	To warrant reversal, a defendant must affirmatively meet both
requirements. 	See id. 	In this case, Defendant meets both requirements of the
Strickland test.
Counsel’s Performance Was Deficient
{15} 	Defendant argues that his trial counsel was ineffective for failing to move to
suppress the evidence obtained as the result of the officers’ warrantless entry into the
residence. Defendant contends that “the officers had no objectively reasonable basis
to believe that the home they entered was the home that . . . Defendant had gone into,
or that a person was in the home, much less that a person was in need of assistance.”

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Accordingly, Defendant argues, there was “no exigency that would permit the officers
to enter a private home without a warrant.”
{16} 	In order to satisfy the reasonableness prong of the ineffective assistance of
counsel test in the context of counsel’s failure to move to suppress evidence, we
consider two questions. 	See Patterson, 2001-NMSC-013, ¶ 19. First, we consider
“whether the record supports the motion[.]” 	State v. Martinez, 1996-NMCA-109,
¶ 33, 122 N.M. 476, 927 P.2d 31. 	Second, we consider “whether a reasonably
competent attorney could have decided that a motion to suppress was unwarranted.”
Id. (internal quotation marks and citation omitted).
{17} 	We believe the record supports a motion to suppress based on the warrantless
police entry. “An officer’s warrantless entry into a person’s home is the exact type
of intrusion against which the language of the Fourth Amendment to the United States
Constitution . . . is directed.” State v. Gutierrez, 2008-NMCA-018, ¶ 16, 143 N.M.
422, 176 P.3d 1154. Thus, “[w]arrantless searches and seizures inside a home are
presumptively unreasonable, subject only to a few specific, narrowly defined
exceptions.” 	State v. Ryon, 2005-NMSC-005, ¶ 23, 137 N.M. 174, 108 P.3d 1032.
Pertinent to this case is the exception that allows police, when acting in their
community caretaker role under the emergency assistance doctrine, to enter a home
without a warrant or consent. 	See id. ¶¶ 25-26 (stating that of the three distinct

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doctrines, under the community caretaking exception, the one that is applicable to
warrantless intrusions into personal residences is the emergency assistance doctrine).
The emergency assistance doctrine justifies a warrantless entry where police have “a
strong perception that action is required to protect against imminent danger to life or
limb[.]” Id. ¶ 31. Officers Weaver and Ginn testified that their decision to enter the
house was prompted by a concern for the safety of the residents.
{18} 	For the emergency assistance doctrine to apply, the State must establish that
(1) the police had reasonable grounds to believe that there was an emergency at hand
and “an immediate need for their assistance for the protection of life or property[,]”
(2) the search must not have been “primarily motivated by intent to arrest and seize
evidence[,]” and (3) there was “some reasonable basis, approximating probable cause,
to associate the emergency with the area or place to be searched.” Id. ¶ 29 (internal
quotation marks and citation omitted).
{19} 	As to the first factor, the Ryon Court indicated that the emergency assistance
doctrine requires an emergency. See id. ¶ 31. In evaluating this factor, courts should
consider “the purpose and nature of the dispatch, the exigency of the situation based
on the known facts, and the availability, feasibility[,] and effectiveness of alternatives
to the type of intrusion actually accomplished.” Id. ¶ 32 (internal quotation marks and
citation omitted). Here, police were responding to a 911 call made by Andrew Ayala,

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a resident of 1584 15th Avenue. According to Mr. Ayala’s testimony, he was sitting
in his kitchen, when he and his sister heard a car approach and “a bump.” Mr. Ayala
looked outside to see Defendant, whom he did not know, approaching the front door.
The front door of Mr. Ayala’s home was unlocked, and Defendant opened it “and
staggered in a few steps before [Mr. Ayala] stopped him.” 	Mr. Ayala asked
Defendant what he was doing there, and Defendant “looked up [at Mr. Ayala], and it
seemed like [Defendant] was scared, and [then] he just started to walk . . . . back to his
car.” Mr. Ayala realized that the bump he heard was the sound of Defendant having
hit the wishing well in his front yard.
{20} 	Despite the obviously alarming circumstance of a stranger entering one’s home,
we note that Mr. Ayala apparently did not feel particularly threatened by Defendant.
Nor did Officer Weaver’s account of the information provided by the 911 dispatcher
indicate that the caller had felt that he had been in danger. To the contrary, Mr. Ayala
described Defendant as having seemed scared and immediately retreating from his
encounter with Mr. Ayala. That Defendant did not appear to have posed any threat
to “life or limb” of the residents of 1584 15th Avenue casts some doubt on the
officers’ testimony that their concern for the safety of the residents of 1690 14th
Avenue rose to the level of concern that would justify a warrantless entry into that
residence. 	See Ryon, 2005-NMSC-005, ¶¶ 31-32 (explaining that courts should

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consider the nature of the dispatch and that the emergency assistance doctrine requires
“a strong perception that action is required to protect against imminent danger to life
or limb” before a warrantless home entry will be justified); cf. State v. Trudelle, 2007-
NMCA-066, ¶ 37, 142 N.M. 18, 162 P.3d 173 (rejecting the officers’ stated general
safety concerns and explaining that, absent “credible and specific information about
possible victims[,]” the officers were not entitled to enter a private residence as
community caretakers).
{21} 	Nor does it appear from the record that the officers took or considered any
additional or alternative measures to confirm the need for, or to avoid making, an
unnecessary warrantless entry into the residence. See Ryon, 2005-NMSC-005, ¶ 32
(noting that the question whether officers took additional or alternative measures must
be considered in determining the reasonableness of the entry). Rather, the officers
appear to have almost immediately determined, based on the fact that Defendant’s
vehicle was parked on the street in front of the residence, that a warrantless entry was
justified based on their “concern” for its supposed occupants. 	In light of the facts
actually known to the officers at the time, their warrantless entry was not justified
under the first Ryon factor. See id. ¶¶ 43-44, 46 (concluding that a warrantless home
entry was not justified where there was no “obvious life-threatening emergency” and
the officers had only “generalized, nonspecific information that [the d]efendant might

1 Since our Supreme Court decided Ryon, the United States Supreme Court in
Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 405 (2006), clearly renounced
consideration of the officers’ subjective motivation in determining whether a
warrantless entry was justified under the emergency assistance doctrine. Accordingly,
the test under the United States Constitution is now two-fold and requires considering
“whether (1) the officers have an objectively reasonable basis to believe there is an
immediate need to protect the lives or safety of themselves or others, and (2) the
manner and scope of the search is reasonable[.]” United States v. Najar, 451 F.3d 710,
718 (10th Cir. 2006). Although we apply the three-factor Ryon test to the facts of this
case, our conclusion would be the same under the two-factor, federal test.
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be inside” and explaining that in light of what little they actually knew, the officers
should have taken steps to corroborate their suspicions by, for example, looking in
windows, as opposed to “immediately entering the home”).
{22} 	The second Ryon factor calls for an examination of the subjective intent of the
officers in making the warrantless entry.1 Id. ¶¶ 33, 37. 	Under this factor, we
examine the “primary motivation” behind the officers’ decision to enter the home. Id.
¶ 36. 	“The protection of human life or 	property in imminent danger must be the
motivation for the initial decision to enter the home rather than the desire to apprehend
a suspect or gather evidence for use in a criminal proceeding.” 	Id. (emphasis,
alterations, internal quotation marks, and citation omitted). 	“The ultimate issue is
whether officers had a reasonable concern that an individual’s health would be
endangered by a delay, and in fact were motivated by a need to address that concern.”
Id.

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{23} 	In this case, although both of the officers testified that their decision to enter
was motivated by a concern for the safety of the occupants of 1690 14th Avenue, there
was no evidence to support a reasonable subjective belief by the officers that there
existed any imminent danger or that a delay would have exacerbated that danger.
Officer Weaver explained that he was “somewhat concerned” based on Defendant’s
having entered 1584 15th Avenue and he “didn’t know what [Defendant’s] intentions
were” so he “went up to [the] house . . . at 1690 14th Avenue, rang the doorbell
several times, [and] knocked on the door to attempt to get somebody to come out.”
Officer Weaver did not hear or see anything inside the house. There was no evidence
that anyone saw Defendant enter the residence, and the officers’ only basis for
concluding that Defendant had entered that particular residence was the fact that his
vehicle was parked on the street in front of the house.
{24} 	On this record, we see little basis for the officers to have formed a subjective
belief that there was even anyone inside the house, and less basis for the officers to
have reasonably believed that delaying entry in order to seek a warrant would have
endangered any individual’s life or health. 	See id. ¶¶ 36-37. Significantly more is
required for police to enter a private residence without a warrant than an officer being
“somewhat concerned” about the intentions of someone who may have entered the
residence. 	See id. ¶ 35 (“The emergency assistance doctrine is not applicable . . .

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unless the entry is motivated by the perceived need to act immediately in order to save
a life.”); see also United States v. Delgado, 814 F. Supp. 2d 874, 883, 885 (E.D. Wis.
2011) (explaining that, under the emergency aid doctrine, “[t]he government has no
right to enter a private residence on a mere whim that a person in need of assistance
may be inside”). Hence, we do not believe that the second Ryon factor was satisfied
under the circumstances known to the officers as they were described at trial.
{25} 	As to the third 	Ryon 	factor, whether there was some reasonable basis
approximating probable cause to associate the emergency with the area or the place
to be searched, there is nothing in the record to suggest that the officers had anything
other than the location of Defendant’s vehicle on which to base their assumption that
he had entered the 1690 14th Avenue residence. The mere fact that Defendant’s car
was parked on the street in front of that address provided a tenuous basis for their
assumption that Defendant had entered that particular residence. 	The location of
Defendant’s car, absent any visible or audible indicia of a disturbance or an
emergency is insufficient to justify a warrantless police entry into the private
residence under the emergency assistance doctrine. See Ryon, 2005-NMSC-005, ¶ 42
(explaining that “[t]o justify the warrantless intrusion into a private residence under
the 	emergency 	assistance 	doctrine, 	officers 	must 	have 	credible 	and 	specific

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information that a victim is very likely to be located at a particular place and in need
of immediate aid to avoid great bodily harm or death” (emphasis added)).
{26} 	Having reviewed the facts of this case as applied to the Ryon factors, we
conclude that the record does not support the officers’ warrantless entry based on the
emergency assistance doctrine. We disagree with the district court’s determination
that “based on the information that [the officers] had at the time and based on the
totality of the circumstances . . . their entry into the home was reasonable . . . [based
on their concern for] the safety of any potential occupants of [the] residence[.]” And
we conclude, contrary to the district court’s observations on Defendant’s motion for
a new trial based on ineffective assistance of counsel, that had Defendant’s counsel
filed a motion to suppress, the record as it now stands would support such a motion.
Further, we do not believe that a reasonably competent attorney could have decided
that, under these circumstances, a motion to suppress was unwarranted. See Martinez,
1996-NMCA-109, ¶ 33. 	We therefore conclude that counsel’s performance was
unreasonable for Sixth Amendment purposes and that Defendant has satisfied the first
prong of the ineffective assistance of counsel test.
Prejudice to Defendant
{27} 	Having established that counsel’s performance fell below an objective standard
of reasonableness, we must now determine whether Defendant suffered prejudice as

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a result. 	See Strickland, 466 U.S. at 687. 	In so doing, we must consider whether
“there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
{28} 	As we have already indicated, at least based on the record before us, had
Defendant’s counsel filed a motion to suppress based on an unconstitutional
warrantless police entry, we believe such a motion would likely have been successful.
Had Defendant’s counsel made a successful suppression motion, all of the evidence
gained as a result of the warrantless entry, including the results of Defendant’s
performance on the field sobriety tests and his breath alcohol results would have been
suppressed. See State v. Lujan, 2008-NMCA-003, ¶ 21, 143 N.M. 233, 175 P.3d 327
(suppressing all evidence gained as a result of an improper entry into the defendant’s
home).
{29} 	A reasonable probability exists that, if a motion to suppress were successful, the
State would likely be in a considerably less advantageous position for proving its case
and that the outcome at trial would likely have been different. This is sufficient to
satisfy the Strickland prejudice factor. 	See 466 U.S. at 694 (stating that “[t]he
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different”); cf.
Patterson, 2001-NMSC-013, ¶¶ 30-31 (stating that in evaluating the evidence to

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determine whether, upon a successful suppression motion, the defendant would have
gone to trial rather than having pleaded no contest, the court does not attempt to
predict the outcome of the trial). It follows, therefore, that Defendant was prejudiced
by the deficient performance of his trial counsel, who failed to move for suppression.
CONCLUSION
{30} 	Having concluded that Defendant has made an affirmative showing under both
aspects of the Strickland test, we hold that Defendant has established a prima facie
showing of ineffective assistance of counsel. Accordingly, we vacate his conviction
and remand for a new trial. Cf. Patterson, 2001-NMSC-013, ¶¶ 33-34 (setting aside
the defendant’s no contest plea, vacating his conviction and sentence, and remanding
the case to the district court based on trial counsel’s deficient performance in failing
to move to suppress evidence where the record supported suppression of key
evidence).
{31} 	We reverse Defendant’s conviction based on ineffective assistance of counsel
and remand to the district court for a new trial.
{32} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

TIMOTHY L. GARCIA, Judge

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