January 22, 2013 – State v. Pebble Jean-Paul, No. 31,179

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	January 22, 2013
NO. 31,179
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
PEBBLES JEAN-PAUL,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Stephen K. Quinn, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Margaret McLean, Assistant Attorney General
Albuquerque, NM
for Appellee
Jacqueline L. Cooper, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
WECHSLER, Judge.
{1} 	Absent various exceptions, Article II, Section 10 of the New Mexico
Constitution requires officers executing a warrant at a premises to knock and
announce their presence and authority and then wait a reasonable time to permit those
inside to voluntarily open the door. Police executing a search warrant at Defendant
Pebbles Jean-Paul’s home knocked and announced their presence and authority,
waited one second, and when they received no response, forcibly entered her home
with a battering ram. They believed that this short wait was authorized by the fact that
a man had been standing near the window, looking out in the direction of the police
as they approached the home and had moved away from that position as the police
reached the door. We conclude that the mere one-second wait was not justified by
either the exigent circumstances exception or the futility exception to the knock-and-
announce requirement. 	Additionally, the one-second wait was simply too short to
permit the occupants either to answer the door or from which to infer that they had
refused to voluntarily admit the police. Accordingly, we reverse the district court’s
denial of Defendant’s motion to suppress.
BACKGROUND
{2} 	On September 22, 2009, several officers went to Defendant’s home in order to

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execute a search warrant for controlled substances. The officers parked away from
the home and approached it from an inconspicuous direction. 	As the officers
approached, they observed someone in the residence, later identified as Michael
Dickson, approximately three to five feet from the window, facing out. The officers
were approximately eight feet from the window at that point, but they could not say
that Dickson made eye contact with them or that he actually saw them. Dickson was
approximately five to six feet from the front door of the residence. 	An officer
described Dickson as being “seen” at the window and then “not seen,” but the officer
did not state that Dickson ran or hid, only that the officer no longer saw him. The
officers knocked on the door and announced “Police department; search warrant!”
The officers’ belt tape recorded the fact that approximately four seconds after the
officers began knocking, and approximately one second after the officers completed
the phrase “search warrant,” the officers struck the door with a battering ram. Once
inside, the officers found drugs and drug paraphernalia.
{3} 	Defendant was charged with drug trafficking by distribution and possession of
drug paraphernalia. 	She moved to suppress the evidence obtained during the
execution of the search warrant, arguing that by waiting such a short period before
forcibly entering, the officers did not comply with the constitutional requirement that
they knock and announce their presence and authority and then wait a reasonable time

3
for an answer prior to forcibly entering the premises and that no exceptions existed
that would have permitted the police to dispense with the requirement. The district
court denied the motion, and Defendant entered into a conditional plea agreement
under which she pleaded guilty to the trafficking charge, reserving her right to appeal
the denial of her motion to suppress.
STANDARD OF REVIEW
{4} 	Defendant contends that the district court erred by denying her motion to
suppress the evidence obtained during the execution of the warrant. We review the
district court’s suppression ruling to determine “whether the law was correctly applied
to the facts, viewing them in a manner most favorable to the prevailing party.” State
v. Hand, 2008-NMSC-014, ¶ 6, 143 N.M. 530, 178 P.3d 165 (internal quotation marks
and citation omitted). We defer to the district court’s factual findings so long as they
are supported by substantial evidence. 	Id. 	Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
State v. Gonzales, 2010-NMCA-023, ¶ 4, 147 N.M. 735, 228 P.3d 519 (alterations,
internal quotation marks, and citation omitted). After deferring to the district court’s
factual findings, we review de novo the constitutional question of whether the search
was reasonable. Id. In the district court, it was the State’s burden to demonstrate the
reasonableness of the execution of the search warrant. 	State v. Ulibarri, 2010-

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NMCA-084, ¶ 12, 148 N.M. 576, 240 P.3d 1050, cert. denied, 2010-NMCERT-008,
148 N.M. 942, 242 P.3d 1288.
INTERSTITIAL APPROACH
{5} 	Defendant’s motion was brought pursuant to both the federal and state
constitutions and, on appeal, her arguments rely on both the Fourth Amendment to the
United States Constitution and Article II, Section 10 of the New Mexico Constitution.
Article II, Section 10 provides that “[t]he people shall be secure in their persons,
papers, homes and effects, from unreasonable searches and seizures” and is an
analogue of the Fourth Amendment. 	“While the federal constitution provides a
minimum level of protection below which the states may not descend, states remain
free to provide greater protection.” 	State v. Javier M., 2001-NMSC-030, ¶ 24, 131
N.M. 1, 33 P.3d 1 (alteration, internal quotation marks, and citation omitted)). Under
New Mexico’s interstitial approach to state constitutional interpretation, this Court
should only reach the state constitutional question if the federal constitution does not
provide the protection sought by the party raising the issue. 	See State v. Gomez,
1997-NMSC-006, ¶¶ 19-20, 122 N.M. 777, 932 P.2d 1. When applying the interstitial
approach, “the court asks first whether the right being asserted is protected under the
federal constitution.” 	Id. ¶ 19. 	“If it is, then the state constitutional claim is not
reached.” 	Id. 	“If it is not, then the state constitution is examined.” 	Id. 	We must

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therefore decide whether the federal constitution would offer Defendant any
protection in this case prior to reaching her claim under the state constitution.
{6} 	In the absence of certain exceptions, the Fourth Amendment requires police
who are executing a warrant to announce their presence and authority and to wait a
reasonable time for an occupant to answer before entering the premises. 	Wilson v.
Arkansas, 514 U.S. 927, 931-36 (1995). This rule, commonly called the knock-and-
announce rule, is also a requirement of Article II, Section 10 of the New Mexico
Constitution. State v. Attaway, 117 N.M. 141, 149-50, 870 P.2d 103, 111-12 (1994).
But while both the federal and state constitutions include the knock-and-announce
requirement, the remedies for a violation under the two constitutions are not the same.
In Hudson v. Michigan, 547 U.S. 586, 591-94 (2006), the Supreme Court held that if
the police fail to adhere to the knock-and-announce rule, the Fourth Amendment does
not require suppression of any evidence obtained during the search as a remedy for the
violation. 	Hudson reasoned that “but for” causation is a necessary condition for
suppression and that a violation of the knock-and-announce rule does not cause the
discovery of evidence, since regardless of the manner of the officers’ entry, the
evidence would inevitably be discovered during the subsequent search, and the search
itself would be valid pursuant to the warrant. Id. at 592. Hudson also determined that
the beneficial effects of exclusion are outweighed by its social costs when it comes to

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knock-and-announce violations because of the potential for increased violence against
officers who might be hesitant to enter unannounced if they believed that evidence
might be suppressed and the potential for the destruction of evidence by those inside
the residence. Id. at 595.
{7} 	In contrast, Attaway states that suppression is the appropriate remedy under
Article II, Section 10 of the New Mexico Constitution for the failure to follow the
knock-and-announce rule. 	Attaway, 117 N.M. at 150 n.6, 870 P.2d at 112 n.6.
Attaway was decided prior to Hudson and did not appear to consider the policy
considerations addressed in Hudson in support of the conclusion that suppression is
not an appropriate remedy. 	Our Supreme Court has not had the occasion since
Hudson to reconsider Attaway or the application of the exclusionary rule for knock-
and-announce violations under the state constitution. 	See Hand, 2008-NMSC-014,
¶ 5 n.2 (stating that “[b]ecause neither party briefed the effect of Hudson on New
Mexico’s knock-and-announce jurisprudence and because we conclude that the district
court erroneously suppressed the evidence, we leave the question of Hudson’s effect
to be decided another day”). 	Therefore, Attaway controls, and the remedy for any
violation of Article II, Section 10’s knock-and-announce requirement continues to be
suppression of the evidence.
{8} 	Although 	Gomez’s discussion of the interstitial analysis applied to the

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interpretation of the rights afforded under the federal and state constitutions, as
opposed to the remedies, we believe its analysis is equally applicable to instances such
as this one, in which, even if the rights provided under the two constitutions were the
same, the remedy for a violation of those rights can be different. 	See Gomez,
1997-NMSC-006, ¶ 20 (citing as an example of the interstitial approach State v.
Gutierrez, 116 N.M. 431, 446-47, 863 P.2d 1052, 1067-68 (1993), which declined to
incorporate the federal good-faith exception to the exclusionary rule into the state
constitution because refusing to apply the remedy of the exclusionary rule would
undermine the purpose of the state constitutional protection against unreasonable
searches and seizures). Because any violation of Defendant’s rights under the United
States Constitution would not provide her with a remedy in this proceeding, we need
not decide whether the police conduct violated Defendant’s Fourth Amendment rights.
See Gomez, 1997-NMSC-006, ¶¶ 19-20. Therefore, we assess Defendant’s claim only
in light of the protections provided by Article II, Section 10 of the state constitution.
KNOCK AND ANNOUNCE UNDER ARTICLE II, SECTION 10
{9} 	In New Mexico, “[l]aw enforcement officers executing a search or arrest
warrant are constitutionally required to knock and announce their identity and purpose
and then wait a reasonable time to determine if consent to enter will be given, prior
to forcefully entering a dwelling.” 	Gonzales, 2010-NMCA-023, ¶ 5. 	The rule

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“requires that officers make known not only their presence, but also their authority
under the warrant that they are serving.” State v. Vargas, 2008-NMSC-019, ¶ 18, 143
N.M. 692, 181 P.3d 684. By requiring the police to announce the fact that they have
a warrant and then give the occupants time to voluntarily answer the door, the knock-
and-announce rule protects “those elements of privacy and dignity that can be
destroyed by a sudden entrance” and gives “occupants the time necessary to collect
themselves and to prepare for the entry of the police before answering the door.” Id.
¶ 15 (internal quotation marks and citation omitted). 	The rule serves a number of
additional purposes, including preventing the needless destruction of property,
reducing the risk of violence to both occupants and police, and permitting an
opportunity for the occupants to comply with the law. Ulibarri, 2010-NMCA-084,
¶ 10.
{10} 	Courts have carved out various exceptions to the rule, and of these, two that are
relevant here are that police need not comply with the knock-and-announce
requirement in situations in which knocking and announcing the officers’ presence
and authority would be futile in that it would amount to nothing more than a useless
gesture, see Vargas, 2008-NMSC-019, ¶ 11, and when there are exigent circumstances
militating against such an announcement. See also Ulibarri, 2010-NMCA-084, ¶ 13.
The futility exception applies when it is clear that the authority and purpose of the

9
police are already known to those within the premises, such that knocking and
announcing that the police intend to execute a warrant would serve no purpose. See
Vargas, 2008-NMSC-019, ¶¶ 3, 17 (holding that the futility exception applied when
the occupant of a home opened the door, saw the police, exclaimed “Oh, shit!,” and
attempted to close the door). 	Exigent circumstances include situations involving,
among other things, “a demonstrable risk that evidence will be destroyed while the
officers wait to be denied entry, or specific information . . . indicating that the danger
to the officers executing the warrant will be increased, rather than decreased, if the
officers comply with the rule.” State v. Vargas, 1996-NMCA-016, ¶ 5, 121 N.M. 316,
910 P.2d 950.
{11} 	To determine whether an exception applies, a 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 or that knocking and announcing would
be futile. Vargas, 2008-NMSC-019, ¶ 12. The reasonableness of an officer’s belief
is measured under a reasonable suspicion standard, “which is not high” but which
“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.” 	Id. (alteration, internal

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quotation marks, and citation omitted).
FUTILITY AND EXIGENT CIRCUMSTANCES
{12} 	The district court determined that the knock-and-announce requirement was
excused because of both the futility and exigent circumstances exceptions. The basis
of the district court’s conclusion that the officers were not required to knock and
announce their presence was that it was highly probable that Dickson had seen the
officers approaching the house such that it would have been “futile to require a
prolonged delay which could result in disposing of evidence.” 	At the suppression
hearing, an officer testified that it is standard operating procedure for police to
expedite the process of entering a home when they have been seen by someone inside
due to the possibility that the home’s occupants could destroy evidence or get a
weapon. But the mere fact that officers have been observed by a home’s occupants
does not relieve them of the knock-and-announce requirement. See State v. Williams,
114 N.M. 485, 487-89, 840 P.2d 1251, 1253-55 (Ct. App. 1992) (applying the knock-
and-announce rule despite the fact that the occupants of a home made eye contact with
members of a SWAT team as they approached the house); cf. State v. Reynaga,
2000-NMCA-053, ¶ 12, 129 N.M. 257, 5 P.3d 579 (stating that “[w]e disagree with
the [s]tate’s argument that the knock-and-announce requirement serves no purpose
once someone inside a . . . home is alerted to the presence of police” and holding that

11
the knock-and-announce requirement applies even when the door has already been
opened due to a ruse by police). Such a rule would require every person—whether
guest or resident—who sees officers approaching a home to immediately go to the
door and open it in order to avoid a forcible entry. People are not generally required
to throw open their door to the police, and it is the announcement of the fact that the
police have authority to enter pursuant to a warrant that alerts a person that it is lawful
for the police to enter a premises regardless of the occupants’ wishes. 	See
Commonweath v. Carlton, 701 A.2d 143, 147 (Pa. 1997) (“[T]here is no requirement
that anyone open the door to their dwelling in the absence of police statement of their
authority and purpose. In a free society, the mere presence of police does not require
an individual to throw open the doors to his house and cower submissively before the
uniformed authority of the state.”). 	Until the police announce that they have a
warrant, the occupants have no reason to believe that the police may forcibly enter and
thus no reason to believe that they must answer the door if they wish to avoid a
forcible breach.
{13} 	Relying on Vargas, 2008-NMSC-019, the State contends that our Supreme
Court has dispensed with the knock-and-announce requirement when the presence of
officers is known. However, Vargas is not on point. Vargas held that knocking and
announcing would have been futile when the defendant happened to open the door just

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as the officers reached it, saw the officers, said “Oh shit!,” and attempted to close the
door—all before the officers were able to knock and announce. 	Id. ¶¶ 3-4, 17. In
Vargas, a reasonable officer could have concluded that the defendant knew that the
officers were there for some type of investigation involving him or the house since the
defendant uttered an exclamation that suggested an awareness and dissatisfaction with
having been caught doing something illegal. 	The defendant then affirmatively
engaged in conduct that sought to prevent the officers from entering when he
attempted to shut the door, thereby indicating that he likely would not voluntarily
open the door if the officers were to then knock and announce their presence and
authority. Vargas simply holds that the futility exception applies under circumstances
in which it is reasonable to believe that the occupant of a home knows the identity of
the officers and their purpose for being at the premises and nevertheless affirmatively
refuses to permit the officers to enter.
{14} 	Vargas is consistent with authorities from other jurisdictions that hold that an
affirmative act by an occupant of a premises demonstrating refusal to admit police or
an attempt to escape after becoming aware of their identity and purpose renders futile
any further efforts by the police to knock and announce. 	See, e.g., United States v.
Peterson, 353 F.3d 1045, 1049 (9th Cir. 2003) (holding that the futility exception
applied when, just as a SWAT team was about to announce its presence, the defendant

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opened the door, saw the SWAT team, and attempted to deny them entry); United
States v. McGee, 280 F.3d 803, 806-07 (7th Cir. 2002) (holding that the “useless
gesture” exception applied when the occupant of a home had run out of the back door
as the police began to knock and announce). Vargas does not abrogate Williams or
otherwise sweepingly dispense with the knock-and-announce requirement any time
an occupant of a premises knows that the police are outside.
{15} 	The State relies on two other cases involving affirmative acts of refusal for the
proposition that other courts have found that knocking and announcing is not required
when the occupants of a premises have seen the police outside. 	In Richards v.
Wisconsin, 520 U.S. 385, 388 (1997), an officer disguised as a maintenance man
knocked on the defendant’s motel room door. The defendant cracked open the door,
saw a uniformed officer standing behind the disguised officer, and slammed the door
closed. Id. The officers then waited two or three seconds and, without announcing
that they were there under the authority of a warrant, began ramming the door in order
to gain entry into the room. Id. In State v. Ochadleus, 2005 MT 88, ¶ 12, 326 Mont.
441,110 P.3d 448, officers executing a warrant at a residence made eye contact with
a man inside. 	They announced that they were police and that they had a search
warrant, and they ordered the man to open the door. Id. The man first walked toward
the door as if to open it, but when the officers again called out that they were the

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police, the man began backing away. Id. As soon as the man backed away, the police
used a battering ram to enter the residence. Id. Although we need not decide whether
the particular facts of Richards or Ochadleus would support an exception to the
knock-and-announce rule under the New Mexico Constitution, both Richards and
Ochadleus are consistent with the principle that some affirmative act by an occupant
demonstrating a refusal to admit the police after their presence and purpose are known
renders unnecessary any further act of knocking and announcing. These cases do not
support the proposition that officers need not knock and announce their presence and
authority and then wait a reasonable time to permit the occupants to respond any time
an occupant has merely viewed the officers approaching from outside the area to be
searched.
{16} 	The State also relies on the unreported federal district court decision of United
States v. Shaw, No. 02-4008101/03-SAC, 2002 WL 31926894 (D. Kan. Nov. 22,
2002), modified on rehearing Nos. 02-40081-01-SAC, 02-40081-03-SAC, 2003 WL
356066 (D. Kan. Jan. 23, 2003). In that case, an officer in plain clothes knocked on
the door of the residence to be searched, hoping that the occupants would answer
voluntarily, without knowing that the person knocking was a police officer. Id. at *1.
If the occupants did so, several uniformed officers were to announce that they were
police with a search warrant and then enter the residence. Id. However, as the first

15
officer approached the door, he realized that it was open and that there was a woman
standing approximately two feet from him on the other side of the doorway. Id. She
turned and looked at him, making eye contact. Id. The plain-clothed officer opened
the door without knocking and announcing. Id. Approximately one second later, the
uniformed officers following behind him announced that they were the police and that
they had a warrant and then entered. Id. The federal district court for the district of
Kansas upheld the search under the futility exception, finding that due to the position
of the uniformed officers behind the first officer, it was reasonable for the officers to
conclude that the woman had seen the uniformed officers and that she knew that they
were there by authority of a warrant. Id. at *3.
{17} 	We are not persuaded by Shaw’s reasoning. The fact that a person has observed
police outside the door of a home does not, in the absence of other evidence, lead to
a reasonable belief that the person knows that the police have a warrant that permits
them to enter. Moreover, the State fails to point out that Shaw was later modified on
rehearing for this very reason: On rehearing, the district court stated that “[e]ven if
[the woman in the doorway] recognized [the first officer] or the officer beside him on
the porch as police officers, her recognition would not have justified their reasonable
belief that she actually knew of the reason for their presence.” Id. For its conclusion
that it was not reasonable to believe that the woman would have known that the police

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were there to execute a search warrant, the court relied on the facts that the woman
was not arrested for any crimes related to the evidence discovered at the house and
that she was not shown to have any knowledge of the events that caused the warrant
to be issued. Id. However, this inquiry seems to look to information that the police
would not necessarily have at the time of the entry, such as whether the woman who
the officers saw in the doorway would be arrested during the search and whether she
was someone who had any involvement with the illegal activity. 	See Vargas,
2008-NMSC-019, ¶ 12 (stating that the reasonableness inquiry looks at the
information known to officers at the time of entry). 	Unless the police have
information at the time of the entry that leads to a reasonable belief that the person
who has observed them knows both that they are officers and that they have authority
to enter pursuant to a warrant, the futility exception does not apply. 	The fact that
someone has simply seen the police does not generally provide a factual basis for a
reasonable suspicion that the occupant knows that the officers have authority to enter
pursuant to a warrant. See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment § 4.8(f), at 693 (4th ed. 2004 & Supp. 2011) (stating that “there
is no good reason for concluding, as some courts have done, that the occupants are
aware of the authority and purpose merely because the police knew that someone
within had seen them approaching or that someone outside had shouted something

17
into the premises”). Shaw does not support the State’s claim.
{18} 	The State also contends that the futility exception applies because Dickson
knew of the police officers’ presence. 	Again, however, it is not sufficient that
occupants know of the police’s presence; they must also know of the police’s purpose
and authority for being there. We recognize that in this case the officers could have
reasonably believed that what Dickson saw when he was facing the direction of the
window was six uniformed officers carrying a battering ram and approaching the
house. While these facts might come closer to providing a reasonable suspicion that
Dickson knew that the officers were there to execute a warrant than those cases in
which the occupant of a home simply sees an officer outside of the door, we
nevertheless conclude that these facts do not support a reasonable suspicion that
Dickson knew that the officers were there to search the home pursuant to a warrant.
This is not a case in which occupants of a home engaged in any conduct evincing a
consciousness of guilt or some other action that would demonstrate that they knew
why the police were there.
{19} 	Furthermore, even if these facts did give rise to such a reasonable suspicion, we
would nevertheless conclude that the futility exception does not apply. New Mexico
has only applied the exception when there has been an affirmative act of refusal by an
occupant of the premises because such action more clearly 	demonstrates that an

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occupant does not intend to voluntarily permit the police to enter than does a mere
brief period of inaction. See Vargas, 2008-NMSC-019, ¶ 14. Other courts have also
primarily applied the exception when there has been some affirmative act of refusal
or other effort to avoid the execution of the warrant. 	See, e.g., McGee, 280 F.3d at
806-07 (stating that “[i]n general, the ‘useless gesture’ exception to the ‘knock[-]and[-
]announce’ rule is applied when a suspect affirmatively refuses to answer his door to
allow the government to serve a valid search warrant” but that it will also apply if
someone is seen to have fled the premises); United States v. James, 764 F.2d 885, 888
(D.C. Cir. 1985) (holding that the futility exception excused the officers’ failure to
announce that they had a search warrant when, after knocking and calling out that they
were the police, the officers heard the defendant running down the back stairs); People
v. Williams, 499 N.W.2d 404, 408-09 (Mich. Ct. App. 1993) (upholding an almost
instantaneous forcible entry after officers saw someone watching them as they
approached the residence and then saw people running toward the back of the house
as the police announced their presence and authority). Dickson’s act of being “seen”
and then “not seen” is too ambiguous to constitute an act, such as fleeing, that would
indicate that he was aware that the police were there to execute a warrant and that he
sought to thwart that intent in some way. We are not persuaded that the application
of the futility exception any time an occupant presumably has seen the police properly

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supports the purposes of the knock-and-announce rule because it does not account for
the fact that until the occupants are informed that the officers are there to execute a
warrant, they have no reason to believe that they are required to answer the door,
speak with officers, or permit the officers to enter. 	Applying the exception under
these circumstances would undermine two of the primary purposes of the knock-and-
announce rule: 	to prevent the needless destruction of property and to protect the
sanctity and privacy of the home.
{20} 	Because there was no evidence presented that demonstrated that the occupants
of Defendant’s home were already aware of the police’s purpose in coming to
Defendant’s home and there was no evidence from which the officers could
reasonably conclude that the occupants would have sought to thwart or avoid the
police’s lawful entry to search, the futility exception did not excuse the knock-and-
announce requirement.
{21} 	The fact that Dickson was in a position from which the police could reasonably
suspect that he had seen them also did not create the kind of exigent circumstances
that would excuse the knock-and-announce requirement based on a suspicion that
evidence would be destroyed. Although many drug investigations arguably involve
the possibility of the destruction of evidence, the United States Supreme Court has
refused to permit a blanket exception to the knock-and-announce rule for cases

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involving illegal drugs. See Richards, 520 U.S. at 391-94. The mere possibility that
an occupant might destroy evidence does not give rise to an exigency. Ortega, 117
N.M. at 162, 870 P.2d at 124. Instead, circumstances must be such that a cautious,
prudent, and well-trained officer would have a “reasonable belief that evidence is
being or is about to be destroyed.” Id.
{22} 	A number of the New Mexico cases concluding that exigent circumstances
excused the knock-and-announce rule when a warrant was for drugs rely on the
possibility of an increased danger to officers. See, e.g., State v. Lopez, 2005-NMSC-
018, ¶ 25, 138 N.M. 9, 116 P.3d 80 (upholding 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 that one of the residents was a drug dealer);
Vargas, 1996-NMCA-016, ¶¶ 9, 13 (upholding 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); Attaway, 117 N.M. at 153, 870 P.2d at 115 (upholding a finding

21
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); cf. Williams, 114
N.M. at 488-89, 840 P.2d at 1254-55 (affirming the district court’s finding of no
exigent circumstances based on increased danger to officers because although the
officers believed that the occupants were drug dealers and that drug dealers are
generally armed, “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”). 	In this case, however, the district
court did not find that the officers had a reasonable suspicion that there would be an
increased danger to officers if they announced their presence and purpose, and,
although the State preserved the argument in the district court, it does not put forth an
argument on appeal that the district court’s ruling could be affirmed on this basis.
Accordingly, we do not consider whether the officers had a reasonable suspicion of
increased danger and look only to whether there was reasonable suspicion that the
occupants of Defendant’s home would destroy evidence. See In re Doe, 98 N.M. 540,
541, 650 P.2d 824, 825 (1982) (stating that an appellate court should not reach issues

22
that the parties have not raised in their briefs).
{23} 	We have found only two New Mexico cases holding that exigent circumstances
excused the knock-and-announce requirement based wholly on a destruction-of-
evidence rationale. The most recent is Ortega. There, an officer received information
that the defendant was supplying heroin to a man with whom he lived and that the
man was selling the heroin to others. Ortega, 117 N.M. at 161, 870 P.2d at 123. The
informant told officers that the defendant and his housemate would destroy the
evidence if they knew that the police were coming. 	Id. 	The officer verified this
information through other informants. Id. at 161-62, 870 P.2d at 123-24. When the
officer went to execute the warrant, some children outside the home started yelling
“Cops! Cops!” 	Id. at 162, 870 P.2d at 124. 	One child ran into the house, and the
officer followed, without stopping to announce his presence or the fact that he was
there to execute a search warrant. Id. In upholding the validity of the entry, the New
Mexico Supreme Court “place[d] little stock in [the officer’s] fourteen years of
experience and general knowledge regarding the destruction of narcotics.” Id. at 163,
870 P.2d at 125. 	Instead, the Court relied on the fact that “it was objectively
reasonable for [the officer] to believe evidence would be destroyed because he had
information to that effect from three different informants who had been in contact with
[the defendant] to support that belief.” 	Id. Therefore, once the children alerted the

23
occupants of the home to the presence of the police, the police were justified in
entering immediately in order to prevent the destruction of evidence. Id.
{24} 	In State v. Sanchez, 88 N.M. 402, 404, 540 P.2d 1291, 1293 (1975), overruled
in part on other grounds by Attaway, 117 N.M. 141, 870 P.2d 103, the district court
found that the officers reasonably believed that drugs would be destroyed because an
informant had specifically told the officers that the occupants of the home would flush
the heroin down the toilet if the officers did not move quickly, and, as the officers
approached the home, people inside were moving around and yelling as if they might
have been alerted to the presence of the police and were attempting to take action in
response.
{25} 	In this case, in contrast to Ortega and Sanchez, there was no testimony
regarding any specific evidence that police had for believing that evidence was being
or would be destroyed. Any suspicion the police might have had about the possibility
that evidence would be destroyed was not based on information about Defendant or
her home and instead would have been based solely on the officers’ general
experience. 	Such a generalized suspicion would arise in every case involving
drugs—a result that is not permitted by Richards and Ortega. See State v. Cohen, 957
P.2d 1014, 1016 (Ariz. Ct. App. 1998) (holding that the exigent circumstances
exception did not apply when officers executing a warrant for drugs made eye contact

24
with occupants of a home, and entered approximately one second after knocking and
announcing, since there was no reasonable suspicion that a longer wait would have
increased the danger to officers or resulted in the destruction of evidence; any
suspicions the officers had were not based on the particular facts of the case).
{26} 	The State argues that the fact that Dickson was seen by the police in the window
and then not seen provides a reasonable suspicion that either he or Defendant was
destroying evidence. 	Although the record is somewhat ambiguous as to when
Dickson was seen and not seen, if his movement away from the window occurred
prior to the officers’ announcement of their presence and purpose, we cannot
reasonably conclude that the fact that someone moves about a residence knowing that
the police are outside, but not knowing that they are there to execute a warrant, gives
rise to the inference that he is destroying evidence. 	See Syakhasone v. State, 39
S.W.3d 5, 10-11 (Ark. Ct. App. 2001) (holding that there were no exigent
circumstances excusing the knock-and-announce requirement when, as the officers
approached the house to execute a warrant for drugs, the officers saw someone open
a curtain, look in the officers’ direction, and then pull the curtain back; any concerns
about safety and the destruction of drugs were not based on anything particular to the
defendant’s case). 	Furthermore, to the degree that Dickson moved away from the
window at the same time that the officers knocked and announced, his mere

25
movement within the home does not give rise to a reasonable suspicion that he was
destroying evidence. See Commonwealth v. DeMichel, 277 A.2d 159, 164 (Pa. 1971)
(holding that there were no exigent circumstances excusing the knock-and-announce
requirement when officers who went to a house to execute a warrant for illegal lottery
tickets that could be readily destroyed announced their presence to someone peering
through the blinds, and the person then dropped the blinds and did not open the door
after a period of between five and twenty seconds; the officers’ concern about the
destruction of the lottery tickets was based on the fact that they could easily be
destroyed, not on any particular facts demonstrating that they would be). This is not
a case in which the officers saw Dickson running or taking other action that would
suggest a frantic response to the presence of the police and that would therefore
provide a reasonable suspicion that evidence was being destroyed. 	Cf. Laffitte v.
State, 370 So. 2d 1108, 1108-10 (Ala. Crim. App. 1979) (upholding an almost
immediate entry after police announced their presence and authority because, as they
came to the door, police saw three people in the living room, one of whom grabbed
some marijuana that had been lying there, and the three ran toward the back of the
house); State v. Kofoed, 208 P.3d 278, 279-81 (Idaho 2009) (finding exigent
circumstances based on the possible destruction of evidence when, as the police
knocked and announced their presence and authority, they heard someone drop or kick

26
something and then footsteps moving rapidly away from the door); State v. Kelley,
658 N.W.2d 279, 284, 289 (Neb. 2003) (finding exigent circumstances in part based
on the possible destruction of evidence when, after a woman looked out of the window
at the police as they knocked and announced, she looked “surprised” and left in a
manner that appeared to be running, and then “a loud commotion” was heard inside).
Because the State failed to demonstrate that the officers had a particularized
reasonable suspicion that someone in Defendant’s home was destroying evidence after
Dickson saw the police, it was error to apply the exigent circumstances exception to
the knock-and-announce requirement.
REASONABLENESS OF KNOCK AND ANNOUNCE
{27} 	Although 	there 	was 	no 	exception 	excusing 	the 	knock-and-announce
requirement altogether, the police in this case did in fact announce their presence and
purpose prior to forcibly breaching the door. Therefore, the State contends that this
Court can affirm the district court under a right-for-any-reason rationale because the
officers complied with the constitutional rule. See Gallegos, 2007-NMSC-007, ¶ 26
(“[W]e will affirm the [district] court’s decision if it was right for any reason so long
as it is not unfair to the appellant for us to do so.”). The State asserts that the brief
time between the announcement of the officers’ presence and purpose and the forcible
breach of the door was reasonable because the officers were constructively refused

27
admittance.
{28} 	In order to comply with the knock-and-announce rule, police must announce
their presence and purpose and receive an actual refusal from those inside or wait out
the time necessary to infer a constructive refusal prior to forcibly entering. 	Lopez,
2005-NMSC-018, ¶ 27. The time that officers must reasonably wait before inferring
that the occupants have refused to answer the door is not fixed and instead depends
on the totality of the circumstances. 	See Hand, 2008-NMSC-014, ¶ 7. 	Relevant
circumstances include the size of the premises that the occupants would have to
traverse in order to come to the door; the time of day, which might impact whether
occupants were likely to be asleep or awake and whether they might need to dress; and
whether the police know that an occupant is inside, such that if they hear no sound at
all or sounds that suggest that the occupant does not intend to answer, it is more likely
to mean that the occupant is refusing to admit the police. See id. ¶¶ 8-9.
{29} 	Even when, as here, a residence is small, New Mexico courts have approved
waits only as short as ten seconds in the absence of exigent circumstances. 	See id.
¶¶ 9, 11 (holding that a ten-to-twenty-second wait was sufficient to support an
inference that admission was being denied based on the fact that “a small space” was
involved, the police heard movement inside, and the defendant made no verbal
response); State v. Johnson, 2006-NMSC-049, ¶¶ 12-17, 140 N.M. 653, 146 P.3d 298

28
(holding that a ten-second wait was reasonable to infer constructive refusal based on
the small size of the hotel room and the fact that the defendant did not respond in any
way); see also Gonzales, 2010-NMCA-023, ¶¶ 3, 16 (holding that an eight-second
wait was too short a time to infer constructive refusal); cf. Lopez, 2005-NMSC-018,
¶¶ 3, 19 (holding that a three-second wait was reasonable because the exigent
circumstances exception applied). 	The ten-second wait found in some of New
Mexico’s cases is a very short time in which to expect one to gather oneself and come
to the door, but it has been justified based on the particular circumstances of those
cases. As one commentator has noted regarding the question of how long officers
must wait for an occupant to answer before inferring constructive refusal,
it has understandably been held that a wait of two to four seconds is
inadequate. Generally, however, it may be said that courts have been
unduly lenient on this score, holding that the police may proceed to enter
after waiting no longer than ten or twenty seconds. . . . 	More
understandable is the view that such brief periods will suffice when a
reasonable inference may be drawn that the inhabitants of the house had
observed the arrival of the police and were well aware of the officers’
authority and purpose[.]
2 LaFave, supra, § 4.8(c), at 673-76 (internal quotation marks and citation omitted).
This case requires us to determine whether the brief wait in this case was reasonable
when officers could reasonably conclude that Dickson was aware of their presence as
they approached the house and then of their purpose and authority once they knocked
and announced that they had a warrant.

29
{30} 	The parties disagree about the length of time that the officers waited before they
forcibly entered Defendant’s home. The district court found, based on a review of an
officer’s belt tape, that there were approximately three-and-a-half seconds before the
door was breached. However, the district court did not indicate the starting point for
its count—whether it was when the officers started knocking or when they completed
their statement that they had a search warrant. 	This lack of clarity is important
because the appropriate starting point is from the time that the first announcement of
the police’s presence and purpose has been completed. See Johnson, 2006-NMSC-
049, ¶ 11 (stating that the appropriate time to be measured is the time “after knocking
and announcing and before forcing entry” (emphasis added)); but see id. (quoting a
Tenth Circuit case for the proposition that the time begins when officers “begin to
announce” their presence). 	The time period cannot begin when the police start to
knock or when they announce that they are the police, because until the occupants are
notified that the police are there to execute a search warrant, they have no reason to
believe that they are required to either open the door or suffer a forcible entry. The
State argues that this Court can review the belt tape and draw its own conclusion about
the length of time that the officers waited since we may review the district court’s
findings to see if they are supported by substantial evidence in the record and since
this Court is in as good a position to measure the time on the belt tape as the district

30
court. However, we do not see this issue as a question of whether the district court’s
finding was correct but as a question of whether its measurement began at the
appropriate time. This is a question of law on which we need not defer to the district
court. 	See State v. Williams, 2011-NMSC-026, ¶ 8, 149 N.M. 729, 255 P.3d 307
(stating that an appellate court reviews de novo the district court’s legal conclusions
on a motion to suppress). The district court did not cite a starting point for its count.
We conclude that the appropriate starting point was when officers completed their
announcement, “Police department; search warrant.” See Johnson, 2006-NMSC-049,
¶¶ 11-12 (measuring the time after the initial announcement was made and before the
forcible entry began). The appropriate ending point is when the officers began to hit
the door with the battering ram. 	See id. ¶ 11 (“When the officers began hitting the
door with the battering ram, they ceased ‘knocking’ and began ‘entering.’”). A review
of the belt tape demonstrates that it was approximately one second after the officers
completed the phrase “search warrant,” that the officers struck the door with a
battering ram. 	However, even if we were to calculate the time as three-and-a-half
seconds, as did the district court, or as five seconds, as urged by the State, the
calculation would not affect our analysis because any of these times is shorter than the
time periods recognized as reasonable under our case law. Further, there is nothing
within these particular circumstances that justifies a period shorter than has thus far

31
been recognized as proper in our jurisprudence.
{31} 	Although the district court found that it was reasonable for the police to believe
that Dickson saw them outside the residence, one second is simply too short a period
of time to give the “occupants the time necessary to collect themselves and to prepare
for the entry of the police before answering the door.” 	Vargas, 2008-NMSC-019,
¶ 15; see also Syakhasone, 39 S.W.3d at 10-11 (holding that a two-to-five-second wait
was too short, even when, as the officers approached the house to execute a warrant
for drugs, the officers saw someone open a curtain, look in the officers’ direction, and
then pull the curtain back); West v. United States, 710 A.2d 866, 867-69 (D.C. 1998)
(holding that a five-second wait was too short when, after police executing a warrant
for drugs knocked and announced, they heard the video game that had been being
played stop and heard the sound of footsteps in the house that were not coming to the
door; these facts were ambiguous, since a person could stop playing a video game in
order to either exclude or admit the police, and even the most cooperative occupant
might make the sound of footsteps in order to “fetch his bathrobe or slippers before
coming to the door”); DeMichel, 277 A.2d at 164 (holding that a five-to-fifteen-
second wait was too short when, after police executing a warrant for drugs announced
their presence to someone who was looking at them through the blinds, the blinds
were dropped); see also Wynne v. Commonwealth, 427 S.E.2d 228, 229-31 (Va. Ct.

32
App. 1993) (holding that a five-second wait was not reasonable when the officers
could see the occupants of the home inside, who were making no move to answer the
door). It is therefore also too short a period from which to infer constructive refusal
to voluntarily open the door. 	See Hand, 2008-NMSC-014, ¶ 7 (stating that
constructive refusal may only be inferred if the occupants do not admit the officers
within a reasonable period of time). Accordingly, under these circumstances, a one,
three-and-a-half, or five second period of time cannot constitute a constructive refusal
on the part of the home’s occupants.
{32} 	We recognize that, under the Fourth Amendment to the United States
Constitution, when there are circumstances not amounting to an actual exigency but
that raise the same types of concerns—such as the possibility of the destruction of
evidence or the possibility that the occupants may have weapons—a court may
properly take into account these concerns in assessing the reasonableness of the time
that the police are required to wait. 	Under the Fourth Amendment, when the
possibility of exigent circumstances exists but does not excuse the knock-and-
announce rule altogether, the reasonableness assessment is based not on the time it
would take for a person to collect oneself and answer the door, but on the time that it
might take to do the harm sought to be prevented by the exception. See Hudson, 547
U.S. at 590 (citing United States v. Banks, 540 U.S. 31, 41 (2003), as an example in

33
which the exigent circumstances exception did not excuse the knock-and-announce
requirement, but the possibility of the destruction of drugs permitted the police to wait
only the period that it might take for a person to attempt to destroy drugs, rather than
a reasonable period for the person to answer the door or constructively refuse). This
approach has been criticized because, although the Supreme Court has rejected a
blanket exigent circumstances exception for drug cases, it seems to have substituted
a blanket rule allowing for an extremely short wait once officers have knocked and
announced their presence and authority. See 2 LaFave, supra, § 4.8(c), at 678 (“The
major difficulty with the Banks Court’s exigencies analysis is this: while the Court
claimed to have embraced the ‘same criteria’ as are used for no-knock searches and
to have mandated a ‘totality of the circumstances’ approach, all of which would seem
to mean that Richards[, 520 U.S. at 391-94] (proscribing use of a blanket rule whereby
a risk of evidence destruction is assumed in all narcotics cases) also applies here, there
seem to be no case-specific particularities involved in the Court’s assessment of the
risk that [the defendant] would destroy the cocaine.”). 	Regardless, 	the Fourth
Amendment rule that the appropriate measure of time in cases involving drugs is the
time it would take the occupants to begin destroying them, rather than the time it
would take them for the occupants to come to the door, has not been adopted as part
of our knock-and-announce jurisprudence under Article II, Section 10. 	Even after

34
Banks, our Supreme Court has stated that “[a]bsent exigent circumstances, officers
must knock and announce their purpose and identity, then wait a reasonable period
of time to determine if consent to enter will be given before forcefully entering.”
Johnson, 2006-NMSC-049, ¶ 12 (emphasis added); cf. Lopez, 2005-NMSC-018, ¶ 23
(applying the Banks Fourth Amendment rule that reasonableness is assessed by
reference to the time it would take for someone to attempt to engage in the conduct
that the exigent circumstances exceptions seek to prevent to a case where the exigent
circumstances exception applied based on an increased danger to officers, and stating
that when, as in Lopez, the exigent circumstances exception applies, officers are
permitted to “altogether dispense with the knock[-]and[-] announce rule or partially
comply by knocking and announcing their identity and purpose before forcible entry,
leaving the decision to the officers’ judgment based on their experience”). Johnson
was a case involving a search warrant for drugs, and, although it cited Banks, it did
not conclude, as in Banks, that once the police officers knocked and announced their
presence and purpose they created an exigency based on the possibility that the
occupants would attempt to destroy the drugs. See Johnson, 2006-NMSC-049, ¶¶ 12-
17. Instead, Johnson continued to evaluate the reasonableness of the police officers’
wait by reference to how long it might take Johnson to answer the motel room door
or for the police to reasonably infer constructive refusal to open the door. 	Id.

35
Similarly, in Hand, which also involved a search for drugs, our Supreme Court looked
to the time it would take for someone to come to the door or otherwise respond to the
police. 	2008-NMSC-014, ¶¶ 7-12. 	It did not consider the time it would take for
someone who had been alerted to the presence of police to begin to destroy the drugs.
Id. 	Thus, when exigent circumstances do not excuse the knock-and-announce
requirement, under the New Mexico Constitution, the assessment of how long officers
must reasonably wait between knocking and announcing and a forcible entry
continues to be made by reference to the time that it would take someone to
voluntarily respond or for the police to infer constructive refusal, not by the time that
it would take for the occupants to engage in the behavior that the exigent
circumstances exceptions seek to prevent.
{33} 	We note that, even if we were to apply the Fourth Amendment standard, Banks
found a time period of fifteen to twenty seconds to be reasonable in light of the
possibility that the occupants of the home would hear the announcement by the police
and then attempt to destroy the drugs sought under the warrant. Banks, 540 U.S. at
41. Here, with only a one-to-five-second wait, if Banks applied, it would not compel
a conclusion that the delay in this case was reasonable.
CONCLUSION
{34} 	The police’s entry into Defendant’s home after waiting only one to five seconds

36
after knocking and announcing violated her right to be free of unreasonable searches
under the New Mexico Constitution. Accordingly, the district court erred in denying
Defendant’s motion to suppress evidence obtained during the search. We reverse and
remand to permit Defendant to withdraw her conditional plea. 	See State v. Hodge,
118 N.M. 410, 416, 882 P.2d 1, 7 (1994) (stating that where a defendant enters a
conditional guilty plea, she is permitted to withdraw the plea after prevailing on
appeal).
{35} 	IT IS SO ORDERED.
_______________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
_______________________________
CYNTHIA A. FRY, Judge
_______________________________
J. MILES HANISEE, Judge