State v. Reynaga

• Decision Date: 26 April 2000
• Docket Number: No. 20,005.,20,005.
• Citation: 2000 NMCA 53,129 N.M. 257,5 P.3d 579
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Odilon Martinez REYNAGA, a/k/a Odilon Reynaga Martinez, and Sergio Bustillos, a/k/a Sergio Morales, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

5 P.3d 579

129 N.M. 257

2000 NMCA 53

STATE of New Mexico, Plaintiff-Appellant, v. Odilon Martinez REYNAGA, a/k/a Odilon Reynaga Martinez, and Sergio Bustillos, a/k/a Sergio Morales, Defendants-Appellees.

No. 20,005.

Court of Appeals of New Mexico.

April 26, 2000.

Certiorari Denied June 15, 2000.

Patricia A. Madrid, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, for Appellant.

Phyllis H. Subin, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, for Appellees.

Certiorari Denied, No. 26,343, June 15, 2000.

OPINION

ALARID, Judge.

{1} In these two consolidated cases, the State appeals from the trial court's order suppressing evidence based upon the failure of officers executing a search warrant to comply with the knock-and-announce procedures mandated by the New Mexico constitution. For the reasons set forth below, we affirm.

BACKGROUND

{2} On October 21, 1997, Albuquerque police executed a search warrant at a mobile home located in southeastern Albuquerque. The police were aware that the front door of the home opened outward and that the landing was too small for the entire team of officers to position themselves immediately outside the door. Prior experience with mobile homes suggested that if the police were required to break open the door, it could take from a few seconds to a minute to pry open the door using a special tool.

{3} The officers executing the warrant devised a plan by which two officers dressed in work clothes would approach the mobile home in the guise of maintenance men and trick the occupants into opening the door by representing to the occupants that they were there to service the air conditioning. The remaining three officers, who were dressed in full assault gear with markings clearly identifying them as "Albuquerque Police," would remain hidden in an unmarked van parked outside the mobile home.

{4} Although the search warrant had been issued as part of a drug investigation, the police had no reason other than the fact of a drug investigation to believe that the occupants of the mobile home presented an enhanced risk of injury to the officers executing the warrant or that there was an increased risk that evidence would be destroyed if the officers announced their presence and purpose prior to attempting entry.

{5} When the officers arrived at the mobile home, the plainclothes officer driving the van could see that the door to the mobile home was open.¹ He advised the raid team of that fact. He pulled up, parking the van kitty-corner to the mobile home within 20 feet of the landing. The two plainclothes officers left the van and approached the mobile home. As they approached the mobile home, Defendant Reynaga came to the door. The van was visible from the doorway of the mobile home. The lead plainclothes officer engaged Reynaga in small talk in Spanish as the two officers approached the mobile home. When the officers got to the landing, the lead officer explained that they were there to fix the air conditioning. The officers could see that there was a second occupant, later identified as Defendant Bustillos, inside the mobile home near the door, but could not tell what he was doing.

{6} At that moment, the door to the van slid open and the remaining three officers left the van and ran toward the mobile home yelling "Police!" or "Policia!" When Reynaga attempted to pull the door shut, the lead plainclothes officer put his foot in the doorway and blocked the door with his body. Reynaga attempted to back into the mobile home, but the raid team seized him as they moved into the mobile home. Because they were not wearing body armor, the two plainclothes officers entered the mobile home behind the uniformed officers. During the subsequent search of the mobile home, the raid team discovered cocaine.

{7} Defendants were indicted for trafficking and conspiracy to commit trafficking in cocaine. Citing State v. Attaway, 117 N.M. 141, 870 P.2d 103 (1994), Defendants moved to suppress the evidence seized in the search of the mobile home on the ground that there were no exigent circumstances justifying the officers' failure to knock-and-announce their presence. Following an evidentiary hearing, the trial court entered an order granting the motion to suppress. The State filed a timely notice of appeal from that order.

DISCUSSION

{8} In Attaway, our Supreme Court recognized the constitutional status of the rule of announcement:

[I]f an officer attempts to execute a search warrant without complying with the announcement rule and exigent circumstances are not present, the entry is unreasonable and the officer commits an "unwarranted governmental intrusion" in violation of the accused's Article II, Section 10 rights.

117 N.M. at 150, 870 P.2d at 112. The Supreme Court noted that the announcement rule "embodies the disparate values of privacy, sanctity of the home, occupant safety, and police expedience and safety." Id. at 151, 870 P.2d at 113. Within a year of Attaway, the United States Supreme Court held that the knock-and-announce principle is an element of the reasonableness inquiry under the Fourth Amendment to the United States Constitution. See Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995).

{9} The State argues that the initial intrusion by the lead plainclothes officer, who blocked the doorway of the mobile home with his foot to prevent Reynaga from closing the door, can be justified as an entry pursuant to a ruse. In State v. Chavez, 87 N.M. 180, 531 P.2d 603 (Ct.App.1975), we upheld an unannounced, peaceful entry by officers investigating a shoplifting incident. We found support for our decision in federal cases upholding entries by ruse where the entry was accomplished without use of force. 87 N.M. at 181, 531 P.2d at 604. We note parenthetically that many federal cases, see e.g., Leahy v. United States, 272 F.2d 487 (9th Cir.1959), turn upon a construction of the specific "[t]he officer may break" language of 18 U.S.C. § 3109, the federal knock-and-announce statute, and therefore are of limited usefulness in determining whether the use of a ruse is consistent with the constitutional announcement rule of Article II, Section 10 of the New Mexico Constitution. Subsequent to Attaway, no reported New Mexico case has analyzed the legality of ruses under Article II, Section 10.

{10} We believe that a blanket ruse exception to the announcement rule is inconsistent with Attaway's directive that noncompliance with the announcement rule must be justified on a case-by-case basis by a particularized showing of exigent circumstances. We conclude that for a ruse to be a reasonable and constitutional alternative to knocking and announcing, the State must demonstrate that, at the time of execution of the warrant, the police had a reasonable suspicion, based upon the particular circumstances of the case at hand, that exigent circumstances exist. See State v. Vargas, 121 N.M. 316, 910 P.2d 950 (Ct.App.1995) (upholding trial court finding of exigent circumstance sufficient to excuse compliance with knock-and-announce requirements); accord State v. Mastracchio, 721 A.2d 844 (R.I.1998) (rejecting blanket exceptions to announcement rule; upholding use of ruse where suspect had prior record of violent felonies, including felony-murder conviction and where apartment to be searched was equipped with one-way mirrors).

{11} In the present case, we share the trial court's concern with the manner in which the police executed the warrant. The most important fact revealed by the record is the complete absence of evidence of exigent circumstances that would have justified the substitution of "Rambo"-style tactics for a straightforward announcement of the officers' presence and purpose. Other than the awkwardness involved in serving a warrant to search a mobile home, neither of the officers who testified at the suppression hearing pointed to specific information indicating a heightened risk of danger to the officers executing the warrant or an enhanced risk that evidence would be destroyed. Under the facts of this case, excusing the executing officers' failure to even attempt to comply with the announcement rule would be tantamount to recognizing a per se exception for drug investigations or searches of mobile homes. The United States Supreme Court has previously rejected a blanket drug investigation exception to the Fourth Amendment's announcement requirement, see Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) and we believe a blanket mobile home exception clearly is unwarranted based upon the showing made by the State in the trial court.

{12} We disagree with the State's argument that the knock-and-announce requirement serves no purpose once someone inside a mobile home is alerted to the presence of police. In our view, it is the state of mind of occupants who have conceded the right of the police to enter that reduces the potential for violence, and not the fact that an officer has a foot in the door. When an officer enters by ruse, he merely delays the moment at which the occupants must decide to accede or resist...