State v. Jean–Paul

• Decision Date: 22 January 2013
• Docket Number: No. 31,179.,31,179.
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Pebbles JEAN–PAUL, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

295 P.3d 1072

STATE of New Mexico, Plaintiff–Appellee,

v.Pebbles JEAN–PAUL, Defendant–Appellant.

No. 31,179.

Court of Appeals of New Mexico.

Jan. 22, 2013.

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 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 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–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 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, 115 S.Ct. 1914, 131 L.Ed.2d 976 (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, 126 S.Ct. 2159, 165 L.Ed.2d 56 (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, 126 S.Ct. 2159.Hudson also determined that the beneficial effects of exclusion are outweighed by its social costs when it comes to 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, 126 S.Ct. 2159.

{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, 143 N.M. 530, 178 P.3d 165 (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 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, 122 N.M. 777, 932 P.2d 1 (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...