State v. Gutierrez

• Decision Date: 27 October 1993
• Docket Number: No. 19893,19893
• Citation: 1993 NMSC 62,116 N.M. 431,863 P.2d 1052
• Parties: , 62 USLW 2370 STATE of New Mexico, Plaintiff-Appellant, v. Gloria GUTIERREZ, Reymundo Gutierrez, and Johnny Garcia, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 1052

863 P.2d 1052

116 N.M. 431, 62 USLW 2370

STATE of New Mexico, Plaintiff-Appellant, v. Gloria GUTIERREZ, Reymundo Gutierrez, and Johnny Garcia Defendants-Appellees.

No. 19893.

Supreme Court of New Mexico.

Oct. 27, 1993.

Tom Udall, Atty. Gen. and Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.

Sammy J. Quintana, Chief Public Defender and Hugh W. Dangler, Asst. Appellate Defender, Santa Fe, for defendants-appellees.

William Carpenter, Albuquerque, for amicus N.M. Trial Lawyers.

Charles W. Daniels, Albuquerque, for amicus N.M. Criminal Defense Lawyers.

Steven D. Ecker, New Haven, CT, for amicus Nat. Ass'n of Criminal Defense Lawyers.

OPINION

RANSOM, Chief Justice.

We granted the State's petition for a writ of certiorari to review an opinion of the Court of Appeals that affirmed the district court's order suppressing certain evidence obtained through unannounced entry of defendants' residence as authorized in a search warrant. See State v. Gutierrez, 112 N.M. 774, 819 P.2d 1332 (Ct.App.1991). The issue presented to this Court is whether evidence obtained by virtue of an invalid search warrant nevertheless may be admitted under the exclusionary rule's "good-faith" exception as articulated by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We agree with the Court of Appeals that the good-faith exception is incompatible with the guarantees of the New Mexico Constitution that prohibit unreasonable searches and seizures and that mandate the issuance of search warrants only upon probable cause. Therefore, we affirm.

Facts and proceedings. On August 4, 1989, the district judge issued a warrant authorizing the search of an apartment in Albuquerque for methamphetamine and other controlled substances, along with drug distribution paraphernalia and evidence of the purchase and sale of controlled substances. In his own hand near the bottom of the page, the district judge wrote that "unannounced entry is authorized for the protection of the officers and for the preservation of evidence."

Officer Carla Gandara swore to the following facts contained in the affidavit supporting her request for the warrant: A reliable informant reported that Reymundo and Gloria Gutierrez were selling "crank", or methamphetamine, from the apartment. Shortly before executing the affidavit, Officer Gandara supervised the informant's purchase of methamphetamine from the apartment. In addition, the police had received complaints from neighbors about suspected drug activity in the apartment and had observed frequent pedestrian and vehicular traffic of the type "consistent with persons who either buy or sell drugs."

Officer Gandara requested that the warrant authorize unannounced entry and submitted the following recital in support of this request:

Affiant has learned through previous investigations and search warrants that when a search warrant for drugs is announced, the persons in possession of the drugs often destroyed the evidence before officers can enter. This is usually done by either swallowing or flushing the evidence. Based on this information, affiant requests that the search warrant be considered a no-knock warrant.¹

The affidavit contained no particularized showing that the defendants were apt to destroy evidence. Moreover, although the warrant stated that no-knock entry was authorized both to preserve evidence and for officer safety, concerns for officer safety were absent from the affidavit. Officer Gandara testified at the suppression hearing that the warrant had been reviewed by a representative of the district attorney's office.

On August 14, 1989, Officer Gandara, Sergeant Ray Ortiz, Detective Shawn, and three other Albuquerque police officers executed the warrant.² The officers did not announce their presence and purpose prior to entry. Officer Gandara, leading the raid, opened the door and ran into the apartment shouting, "Police, down!"³ The other officers followed her into the apartment. She then ran directly to the back of the apartment. The search recovered eleven bags of methamphetamine from the kitchen table, paraphernalia for distribution, and a portion of the money used for the informant's controlled purchase. Nothing in the record suggests that the officers discovered weapons of any sort.

Reymundo and Gloria Gutierrez, husband and wife, and Gloria's son, Johnny Garcia, all resided in the apartment and were present during the search. They were arrested and a grand jury indicted them on three counts: possession of a controlled substance with intent to distribute under NMSA 1978, Section 30-31-22(A) (Repl.Pamp.1989), conspiracy to commit possession of a controlled substance with intent to distribute under NMSA 1978, Sections 30-28-2, 30-31-22(A) (Repl.Pamp.1984), and possession of drug paraphernalia under NMSA 1978, Section 30-31-25.1(A) (Repl.Pamp.1989).

Defendants moved to suppress the evidence recovered from the apartment during the search, asserting it was obtained in violation of the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. They challenged both the sufficiency of the showing of probable cause and the propriety of unannounced entry. The State, citing Leon, urged adoption of a good-faith exception to the exclusionary rule under the Fourth Amendment and Article II, Section 10. In granting the defendants' motions to suppress, the trial court explained:

1. The Fourth Amendment and the New Mexico Constitution require that for a search to be valid it must be "reasonable". To be reasonable, the officer(s) serving the warrant must "knock and announce", unless sufficient exigent circumstances exist to forgo this requirement.

2. Most jurisdictions do not allow a predetermination of these exigent circumstances. The officer serving the warrant must make that determination at the time the warrant is served.

3. New Mexico has not adopted the "good-faith exception" to the requirement of probable cause or exigent circumstances. If such were the case, under the particular circumstances of this case, the "good-faith exception" would apply.

4. Sufficient exigent circumstance[s] were not articulated at the hearing on this motion to allow a "no-knock entry".

The court entered no findings and drew no conclusions on probable cause.

Within ten days, the State appealed the suppression order as authorized by NMSA 1978, Section 39-3-3(B)(2) (Repl.Pamp.1991). The Court of Appeals affirmed. Writing for a two-judge majority, Judge Chavez held that the New Mexico Constitution does not embody a good-faith exception to the rule requiring exclusion of evidence seized pursuant to a constitutionally deficient search. Gutierrez, 112 N.M. at 780, 819 P.2d at 1338. The Court criticized the Leon Court's cost-benefit analysis of the exclusionary rule, stating that the costs of the rule are exaggerated. Id. at 778-80, 819 P.2d at 1336-38. In addition, the Court stated that the good-faith exception swallowed the constitutional requirement of probable cause. Id. at 780, 819 P.2d at 1338. Judge Bivins dissented and suggested a case-by-case adoption of a good-faith exception to the exclusionary rule. Id. at 782, 819 P.2d at 1340. Judge Bivins took issue with the majority's preoccupation with the sanctity of the probable cause requirement. He noted that the warrant was deemed invalid not because of lack of probable cause, but because of the nature of the entry it authorized. Id. at 784, 819 P.2d at 1342.

Preliminary discussion--invalidity of no-knock warrant gives rise to good-faith exception issue. We first consider whether we are faced with a question that is real or one that is hypothetical. On appeal, the State assumes, and apparently would have us assume, that the trial court declared the warrant to be invalid.⁴ Although the trial court did not expressly declare the warrant to be invalid, it noted that most jurisdictions do not allow the predetermination of exigent circumstances. The State, on the other hand, assumes that the warrant was invalid because facts justifying unannounced entry were not established with particularity in the affidavit. The State thus implies that, upon a proper factual showing, unannounced entry may be authorized by warrant. We have considered the validity of predetermination of exigent circumstances but expressly withhold any statement of an opinion in that regard. We see the issue on appeal as being founded on the absence of particularized facts in the affidavit.

The widespread use of no-knock warrants that was revealed at the hearing below,⁵ their potential impact on important interests of both the state and the public, and the unsettled issue of the legality of their use under the law of this state⁶ require that we one day address the validity of a judicial predetermination of necessity for unannounced entry. It would be inappropriate, however, to set forth here a position on a point not discussed by the parties in their briefs.

Suffice to say, we believe the issue is not whether a judicial officer has the authority or power to authorize no-knock entry, since such authority is seemingly present in the inherent powers of judicial officers; rather it is the wisdom of judicial determination of the reasonableness of police conduct that has yet to occur. That is, the issue is whether to favor prescreening of the reasonableness of the officer's conduct over after-the-fact judicial review of such conduct. Prescreening of conduct is a burdensome and rare phenomenon in our legal system. Our system tends to favor after-the-fact, adversarial judicial review of police conduct, rather than ex-parte pre-screening. The warrant process is one notable exception. There we require a judicial officer to review, in advance, whether probable cause is present to justify police action. We often have stated that we require such prescreening because it interjects a...