State v. Ortega

• Decision Date: 05 March 1992
• Docket Number: No. 12479,12479
• Citation: 1992 NMCA 29,836 P.2d 639,114 N.M. 193
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Reynaldo ORTEGA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 639

836 P.2d 639

114 N.M. 193

STATE of New Mexico, Plaintiff-Appellee, v. Reynaldo ORTEGA, Defendant-Appellant.

No. 12479.

Court of Appeals of New Mexico.

March 5, 1992.

Certiorari Granted April 30, 1992.

[114 N.M. 194] Tom Udall, Atty. Gen. and Max Shepherd, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender and Gina Maestas, Asst. Appellate Defender, for defendant-appellant.

OPINION

BIVINS, Judge.

Convicted of possession of heroin with intent to distribute, contrary to NMSA 1978, Section 30-31-20(A)(3) (Cum.Supp.1991), Defendant appeals raising the following issues: (1) whether the no-knock warrant was unlawful; (2) and, if unlawful, whether exigent circumstances existed at the time of execution that justified the officers' entry; (3) whether the affidavit for the search warrant was facially insufficient; (4) whether the search warrant was overbroad or the search conducted was outside the scope of the warrant; (5) whether the trial court erred in denying Defendant's motion for disclosure of the informants' identities; (6) whether the trial court erred in joining Defendant's case with co-defendant's case; (7) whether the trial court erred in failing to declare a mistrial; or, alternatively, in failing to inform the jury that co-defendant had pled guilty to possession of heroin; and (8) whether the trial court erred in submitting to the jury only that evidence designated as relevant to Defendant. Other issues listed in the docketing statement but not briefed are deemed abandoned. See State v. Fish, 102 N.M. 775, 777, 701 P.2d 374, 376 (Ct.App.), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985). We reverse on the fourth issue and remand for a new trial. Because we remand the action for a retrial, we find it necessary to also address issues one, two, three, and five. We need not address issues six, seven, or eight.

FACTUAL AND PROCEDURAL BACKGROUND

After conducting an evidentiary hearing on Defendant's Motion to Suppress, the trial court entered its order denying the Motion. In the order, the trial court found that a magistrate issued a no-knock search warrant on December 20, 1989; that while New Mexico Rules of Criminal Procedure for both magistrate and district courts contain specific rules for the issuance of search warrants, those rules neither prohibit nor authorize no-knock search warrants; that the officers executing the search warrant in this case neither knocked nor announced their presence prior to entry; that entry was made pursuant to the search warrant only after a child who opened the door through which one of the officers entered announced the presence of the police officers; and that the manner of execution of the search warrant did not violate Defendant's rights under either the New Mexico or federal constitution. Based on those findings, the trial court concluded that a magistrate or a judge is not authorized to issue a no-knock search warrant; that the search warrant in this case was legally valid, but that the no-knock provision was of no consequence; and that the manner of execution of the warrant did not violate Defendant's constitutional rights. We read the trial court's conclusions to mean that, while determining that there is no authority to issue a no-knock search warrant, in this case it had no significance because exigent circumstances justified the officers entering without first announcing their presence and purpose.

1. No-Knock Warrant

Because the trial court concluded as a matter of law that a magistrate or judge has no authority to issue a no-knock search warrant, Defendant understandably briefed that issue. The State, however, chose not to brief that issue, placing its entire reliance on the existence of exigent circumstances to justify the avoidance of the "knock and announce" rule. Since the State has opted not to defend the adoption of the no-knock search warrant, we decline to consider that question in this appeal. We think it prudent to consider the validity of no-knock search warrants on the particular facts and circumstances presented in a case where the issue is properly presented and when fully briefed by both sides. That was not done here.

2. Exigent Circumstances

While the Rules of Criminal Procedure both for the district and magistrate courts do not expressly require that law enforcement officers give notice of authority and purpose before making a forcible entry, see SCRA 1986, 5-211(C) and 6-208(D), common law imposes that requirement. See State v. Sanchez, 88 N.M. 402, 403, 540 P.2d 1291, 1292 (1975). See generally 2 Wayne R. LaFave, Search and Seizure Sec. 4.8 (1987 & Supp.1992) [hereinafter Search and Seizure ] (generally required that officers give notice of authority and purpose prior to entry of premises with search warrant). Non-compliance with this standard is justified if exigent circumstances exist. State v. Valdez, 111 N.M. 438, 441, 806 P.2d 578, 581 (Ct.App.1990) (test for exigent circumstances is " 'whether, on the basis of the facts known to a prudent, cautious, trained officer, the officer could reasonably conclude that swift action was necessary' " (quoting State v. Copeland, 105 N.M. 27, 31, 727 P.2d 1342 1346 (Ct.App.1986))), cert. denied, 111 N.M. 316, 805 P.2d 85 (1991). See generally 2 Search and Seizure, supra, Sec. 4.8(d) (discussing destruction of evidence exception to knock and announce rule).

Questions regarding good faith belief and exigent circumstances are questions of fact for the trial court, and the trial court's findings are given the same consideration as they are generally accorded under the substantial evidence standard. State v. Sanchez, 88 N.M. 402, 403, 540 P.2d 1291, 1292 (1975). The circumstances surrounding the entry without notice of authority and purpose must be evaluated from the standpoint of a "prudent, cautious and trained police officer." Id. While the officers executing the warrant may rely on information obtained in advance of execution, we view the circumstances at the time of execution to determine if exigency exists. Cf. State v. Calvillo, 110 N.M. 114, 118, 792 P.2d 1157, 1161 (Ct.App.) ("The issue is not what the circumstances eventually show; it is whether, on the basis of facts known to a prudent, cautious, trained officer, the officer could reasonably conclude that swift action was necessary."), cert. denied, 110 N.M. 72, 792 P.2d 49 (1990).

Based on information provided by confidential informants, a police officer (Lara) obtained a warrant to search co-defendant Jiminez' residence, together with the vehicles of Defendant and co-defendant parked at that residence, and the occupants in the residence at the time the warrant was to be executed. Officer Lara testified at the suppression hearing that approximately six to eight officers participated in the execution of the warrant. Several officers arrived in a van clearly marked with the "Sheriff Department" name and insignia. Other officers arrived in either marked or unmarked vehicles. Officer Lara was wearing a raid jacket with an emblem on the front and "Sheriff's Department" clearly written on the back. Other officers were either in plain clothes, uniform, or wearing similar raid jackets. The officers parked the van on the street near the driveway to the residence. Officer Lara and one or more officers proceeded toward the front door while several other officers went to the rear door. Officer Lara said that he observed several small children, ages five through seven, playing in the front yard. Upon arrival, he announced himself to the children as a police officer. One or more of the children started yelling "Cops! Cops!" with one child running from the yard through a screen door at the front entrance. Officer Lara followed in pursuit. Upon entering the front door, he observed Defendant make a dash toward the rear; however, other officers had entered through the rear door and apprehended him.

When questioned as to the basis for the no-knock entry, Officer Lara testified that it was based upon his experience and the information received from the informants. Officer Lara said that fourteen years experience taught him that traffickers in small amounts of heroin or cocaine usually destroy the contraband when confronted by police. With respect to the information provided by the informants, Officer Lara said that one or more informants had told him that co-defendant Jiminez had said that he would attempt to destroy the evidence if he saw the police coming. That information was contained in the affidavit for the search warrant.

Once the children ran screaming into the house, the trial court could reasonably determine that the occupants were alerted to the presence of the police, and the police were justified in assuming, based on their experience and information they had in this particular case, that evidence was about to be destroyed. Cf. United States v. Carter, 566 F.2d 1265, 1269 (5th Cir.) (where officer was "virtually certain" that persons inside knew of his presence and purpose making announcement would be a "useless gesture"), cert. denied, 436 U.S. 956, 98 S.Ct. 3069, 57 L.Ed.2d 1121 (1978); People v. Vargas, 36 Cal.App.3d 499, 111 Cal.Rptr. 745, 748 (1973) (strict compliance with announcement requirement excused where officers have reason to believe occupants already know purpose of entry); Commonwealth v. Beard, 501 Pa. 385, 461 A.2d 790 792-93 (1983) (noncompliance with announcement requirement excused where police reasonably believe occupant knew purpose and would attempt to destroy evidence).

We believe the dissenting opinion not only errs in applying a subjective test to determine that exigent circumstances did not exist, but ignores the standard of review. For example, the dissent refers to Officer Lara's testimony where he speculated that the children yelling "Cops! Cops!" was of no significance. If we were to apply a subjective standard, as the dissent seems to propose,...