State v. Sanchez

• Decision Date: 25 June 1975
• Docket Number: No. 1685,1685
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Clarence SANCHEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 858

540 P.2d 858

88 N.M. 378

STATE of New Mexico, Plaintiff-Appellee, v. Clarence SANCHEZ, Defendant-Appellant.

No. 1685.

Court of Appeals of New Mexico.

June 25, 1975.

Certiorari Granted July 21, 1975.

Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Reginald J. Storment, Asst. Appellate Defender, Santa Fe, for appellant

Toney Anaya, Atty. Gen., Jay F. Rosenthal, Mark Gerald Shoesmith, Asst. Attys. Gen., Santa Fe, for appellee.

OPINION

SUTIN, Judge.

Defendant was convicted of possessing heroin in violation of § 54--11--23, N.M.S.A.1953 (Repl.Vol. 8, pt. 2, 1973 Supp.). Defendant appeals. We reverse.

The denial of defendant's motion to suppress evidence seized from his apartment was reversible error for the following reasons:

(1) The mode of procedure in which the police officers gained entry into defendant's apartment was unlawful, in violation of defendant's Fourth Amendment guarantee against unreasonable searches and seizures.

(2) The manner of entry was unconstitutional, because: (a) The police officer who knocked did not give notice of his purpose. (b) The police officer did not wait to be denied admission before entering. (c) Exigent circumstances were not present which would excuse non-compliance.

A. Facts

About 10:15 a.m., with a search warrant, four police officers approached the rear of defendant's apartment from the alley. One of the officers knocked loudly on the door of defendant's residence. The knock was clearly audible to everyone in the house. One officer said 'Police Officers' and nothing else. No one answered at the door. The police officers entered immediately. In the absence of a 'noknock' warrant, it was the customary practice of the police to call out or announce their identity and the fact that they had a search warrant before entering the house. One officer stated there was no reason to deviate from this procedure in the instant case. However, he also testified that 'to be perfectly honest with you, when the door didn't immediately open, I was expecting to hear the toilet flush, you see, and what I was thinking about was getting in that house.'

Prior to entry, the officers heard a loud yell by a female, and other noise, and they saw some movement of people inside the house. They immediately forced open the door and entered defendant's apartment with guns drawn. The door was unlocked and opened easily. An informant had told the police officer to move very fast or the defendant would flush the heroin down the toilet. Normally, in the officer's experience, there was always an attempt to get rid of heroin. After entering, the police officers found a female subject and two children in the kitchen. In the bedroom, defendant was sitting on the end of the bed dressed in his underwear. The bathroom was off the kitchen area, not the bedroom area. No one was found in the bathroom. A search was made and heroin was found in the top dresser drawer in defendant's bedroom.

'B. Law

'Our view is that an officer, prior to forcible entry, must give notice of authority and purpose, and be denied admittance . . .. Noncompliance with this standard is justified if exigent circumstances exist. Examples, but not a catalogue, of exigent circumstances are . . . when prior to entry, officers in good faith believe that the person to be arrested is fleeing or attempting to destroy evidence. . . . The reasonableness of each search and seizure is to be decided upon its own facts and circumstances in light of these general standards.' (Citations omitted). State v. Baca, 87 N.M. 12, 528 P.2d 656, 657--58 (Ct.App.1974). The Baca rule allows the police to act fast and without warning under exigent circumstances when to do otherwise might allow a guilty person to escape conviction. But at the same time, the rule prevents unwarranted intrusion into private dwellings by overzealous police officers eager to execute a search. Rules similar to the one in Baca exist in other jurisdictions. However, conflicts have arisen in the interpretation of words and phrases in such rules and the application thereof to the facts of each case.

Conflicts arise because courts try to balance the citizen's Fourth Amendment rights against the legitimate requisites of the police when pursuing suspects, especially in narcotics cases. Some courts interpret the rules in favor of the police to facilitate the apprehending of suspects. Other courts are more sensitive to the violation of citizens' constitutional guarantee against unreasonable searches and seizures. See Note, Unannounced Entry to Search: The Law and the 'No-Knock' Bill (S. 3246), 1970 Wash.U.L.Q. 205; Note, NoKnock and the Constitution: The District of Columbia Court Reform and Criminal Procedure Act of 1970, 55 Minn.L.R. 871 (1971); Annot., What Constitutes Violation of 18 U.S.C.S. § 3109 Requiring Federal Officer to Give Notice of his Authority and Purpose Prior to Breaking Open Door or Window or Other Part of House to Execute Search Warrant, 21 A.L.R.Fed. 820 (1974).

Today, we hold that the entry by police in the instant case was unlawful. We explain the critical phrases in the Baca rule to guide the police and the lower courts in determining the boundary between lawful and unlawful police conduct in the execution of a search warrant. Those critical phrases are: (a) 'forcible entry'; (b) 'notice of authority and purpose'; (c) 'denial of admittance'; and (d) 'exigent circumstances'.

(a) Forcible Entry

' Forcible entry' is not restricted to breaking down a door or window. Entry through a closed but unlocked door, absent consent, is a forcible entry. Entry through an open door, absent consent, is a forcible entry. In essence, forcible entry refers to an unannounced intrusion. See, Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); Sears v. State, 528 P.2d 732 (Okla.Cr.1974); State v. Miller, 7 Wash.App. 414, 499 P.2d 241 (1972); People v. Godinas, 176 Colo. 1391, 490 P.2d 945 (1971); People v. Bradley, 81 Cal.Rptr. 457, 460 P.2d 129 (1969).

(b) Notice of Authority and Purpose

' Notice of authority and purpose' means that the enforcement officer must, before entry, knock at the door or announce his presence to the person in the house, and wait for a person to come to the door. He must then state that he is a police officer; that he has a warrant to search the premises and then request permission to enter and serve the warrant. Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); Sears v. State, supra; Sabbath v. United States, supra; State v. Miller, supra; Tatman v. Delaware, 320 A.2d 750 (Del.1974).

In the instant case, the police officer knocked on the door and announced his authority in an audible manner, however, he did not wait for anyone to come to the door. Nor did he state his purpose for being present, or request permission to enter and serve the warrant. He did not, therefore, properly give notice of his authority and purpose.

(c) Denial of Admittance

The meaning of 'denial of admission' or 'refused admittance' has been stated in Annot., 21 A.L.R.Fed. 820, supra, at 834--35, as follows:

. . . The phrase 'refused admittance' has been generally interpreted not to mean an affirmative refusal, and the courts have held that an officer may justifiably conclude that he has been refused entry where after announcement he either becomes aware of activity by the occupants which is inconsistent with action deemed reasonably necessary to open the door, or where a reasonable interval of time has elapsed without any response by the occupants, although some courts have determined that an entry made too soon after announcement precludes any opportunity by the occupant to refuse the officer admittance.

"There are no set rules as to the time an officer must wait before using force to enter a house; the answer will depend upon the circumstances of each case." United States v. Phelps, 490 F.2d 644, 647 (9th Cir. 1974), quoting McClure v. United States, 332 F.2d 19, 22 (9th Cir. 1964), cert. denied, 380 U.S. 945, 85 S.Ct. 1027, 13 L.Ed.2d 963 (1965).

Simultaneous identification and entry is unreasonable and demands the suppression of evidence. United States v. Doering, 384 F.Supp. 1307 (W.D.Mich.1974); State v. Eminowicz, 21 Ariz.App. 417, 520 P.2d 330 (1974). Where a police officer knocked loudly on the door, stated his identity as a police officer and that he had a search warrant, demanded entry, and repeated this two or more times, waiting 30--60 seconds before breaking in, the officer could reasonably infer that he had been denied admittance. Davis v. State, 525 P.2d 541 (Alaska, 1974); People v. Lujan, 484 P.2d 1238 (Colo.1971).

In the instant case, the police officer, after announcing his authority, immediately entered. There was no activity or time interval elapse from which the police officer could conclude that admission had been denied. This made the entry unlawful. United States v. Case, 435 F.2d 766 (7th Cir. 1970); United States v. Barrow, 212 F.Supp. 837 (E.D.Pa.1962).

(d) Exigent Circumstances

The exception to the requirements set forth in (a), (b) and (c), supra, is called 'exigent circumstances'. If, prior to entry, a police officer in good faith believes that the person whose home is to be searched and/or the person inside to be arrested is fleeing or is attempting to destroy evidence, the police officer may enter without fulfilling the above requirements. State v. Baca, supra. By a good faith belief, we mean a reasonable belief, one resting on a reasonable assessment of the facts available to the police officer prior to entry.

The burden of showing the existence of exigent circumstances rests on the State. People v. Lujan, supra; McDaniel v. State, 54 Ala.App. 314, 307 So.2d 710 (Ala.Cr.App.1974).

Ambiguous conduct cannot provide the basis for a reasonable belief that the person or persons inside are attempting to flee or to destroy evidence.

Our decisions . . ....