State v. Vargas

• Decision Date: 09 November 2006
• Docket Number: No. 24,880.,24,880.
• Citation: 2007 NMCA 006,149 P.3d 961
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Peter A. VARGAS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

149 P.3d 961

2007 NMCA 006

STATE of New Mexico, Plaintiff-Appellee, v. Peter A. VARGAS, Defendant-Appellant.

No. 24,880.

Court of Appeals of New Mexico.

November 9, 2006.

Certiorari Granted, No. 30,131, December 14, 2006.

COPYRIGHT MATERIAL OMITTED

Patricia A. Madrid, Attorney General, Katherine Zinn, Assistant Attorney General, Santa Fe, NM, for Appellee.

John Bigelow, Chief Public Defender, Cynthia S. Sully, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

ALARID, Judge.

{1} This case presents an opportunity to clarify the requirements of the knock-and-announce rule. We hold that the announcement component of the knock-and-announce rule requires officers executing an arrest warrant to inform the occupants of a residence that the officers are proceeding pursuant to a warrant. We further hold that unless and until officers have announced that they are executing a warrant, an occupant's refusal to admit the officers into a residence does not automatically render futile further announcement of the officers' purpose and authority nor does it constitute a per se exigency excusing compliance with the announcement component of the knock-and-announce rule.

BACKGROUND

{2} During the swing shift on December 3, 2002, Patrol Sergeant Chris Miller of the Las Cruces Police Department learned that there was an unexecuted bench warrant authorizing Defendant's arrest for failure to appear in district court to answer a felony charge of battery on a peace officer. Sergeant Miller had encountered Defendant the previous day in municipal court, but at that time had not known of the felony warrant. Sergeant Miller checked computer records, which gave two addresses for Defendant. Sergeant Miller contacted dispatch and requested that they send officers to both addresses to execute the warrant.

{3} Officer Robert Elrick was directed to execute the warrant. Dispatch did not disclose the specific underlying felony charge. The dispatcher provided a general description of the subject: adult male, medium build, with a ponytail and goatee. Officer Frank Flores was on duty and was listening in on his radio and on his own initiative decided to assist Officer Elrick. Officers Elrick and Flores were aware that they were being sent to a possibly out of date, "secondary" address and that at the same time they were attempting to execute the warrant, a larger team of officers would be attempting to execute the warrant at a more recent address. Officers Elrick and Flores did not consider it likely that they would encounter the subject at the secondary address. Other officers listening in on the dispatch advised Officers Elrick and Flores that the subject of the warrant was involved in drugs and that he might fight them. Officers Elrick and Flores had no other information suggesting that the subject was armed or dangerous. Officer Flores was a team leader for a SWAT team. In his view, the attempt to execute the warrant was "nothing like" a SWAT situation. A "high risk warrant" would have been assigned to a tactical unit for execution, not to a single patrol officer.

{4} Officer Elrick was wearing a standard uniform with a metal badge. Officer Flores was dressed in a navy blue bike uniform with shorts, a yellow cloth badge, and a leather Sam Browne belt with his equipment and gun. The officers arrived at the address provided by dispatch around 8:00 p.m. The address was an apartment building.

{5} The officers approached the door to the subject's apartment, and, as a routine safety precaution, stationed themselves off to the sides of the door, with Officer Elrick on the right, doorknob side and Officer Flores on the left side of the door. The officers did not engage in any reconnaissance other than to pause momentarily to listen for voices or other sounds inside the apartment. The officers heard two voices, one of which was male. As Officer Elrick was preparing to knock, the door was opened from the inside by a man whose appearance matched the general description of the subject given by the dispatcher. The man remained behind the door, inside the threshold of the apartment. Officer Elrick said "Hi, how ya' doin'," or "Hey bro', how ya doin'?" The man exclaimed "Oh shit!" and attempted to shut the door. Officer Elrick and Officer Flores each blocked the door with a foot. Officer Flores, shouted "don't close the door, don't close the door!" As the man struggled to shut the door, Officer Flores saw a "bluish-purplish, dark-colored blur" move across the man's body. The movement was followed by a "loud thump" consistent with an object of significant weight hitting the floor. The officers were concerned that the thump might have been the sound of a firearm hitting the floor. The man let go of the door and Officer Flores entered the apartment with his gun drawn, followed by Officer Elrick. Officer Flores did not announce his purpose or authority prior to entering the apartment; indeed, Officer Flores's practice was to not disclose the existence of an arrest warrant to a person answering the door due to his concern that the subject of the warrant would "take off" if he realized that officers were present to make an arrest.

{6} In addition to the man, the officers encountered a woman, who was reclining on a couch as the officers entered. The man angrily complained to the officers that they had "just busted into the apartment," and "had no reason for being there." The man asked Officer Flores "what are you doing, breaking into my house?" The officers ordered the man and woman to sit on the couch while they confirmed the man's identity. The man complied with all the commands that were given to him by the officers after they entered.

{7} Upon entering the apartment, Officer Elrick immediately looked for the object that had made the thump. He located and retrieved a Crown Royal bag. He felt a square, solid object within the bag. He looked in the opening of the bag to determine if the object was a gun. He observed a green, leafy substance that he thought might be marijuana. He emptied the bag and discovered marijuana, cocaine, scissors, and an electronic scale.

{8} As Officer Elrick was securing the Crown Royal bag, Officer Flores was confirming that the man in the apartment was the subject of the warrant. The man told Officer Flores his name was Peter Vargas. He gave Officer Flores his date of birth and social security number. The man and the woman claimed that the man had "taken care" of the warrant. Based on his past experience, Officer Flores was skeptical. The woman showed Officer Flores paperwork establishing that a Peter Vargas had appeared in magistrate and municipal court the day before. However, the warrant numbers on the paperwork did not match the warrant that the officers were executing. The officers handcuffed the man, now identified as Defendant, and arrested him.

{9} Defendant was indicted by a grand jury and charged with narcotics trafficking, possession of drug paraphernalia, and possession of marijuana. Defendant moved to suppress the evidence seized by Officers Elrick and Flores, arguing, inter alia, that the officers violated the knock-and-announce rule as set out in State v. Attaway, 117 N.M. 141, 870 P.2d 103 (1994), when they "immediately barged" into his apartment. In response, the State argued that the officers were proceeding pursuant to an arrest warrant; that the officers' observation of Defendant when he opened the door gave them reason to believe that the subject of the warrant was present in the apartment; and that Defendant's attempt to shut the door coupled with the loud thump gave rise to exigent circumstances allowing them to pursue Defendant inside the apartment. The district court held an evidentiary hearing at which Sergeant Miller, Officer Elrick and Officer Flores testified. The district court found, inter alia, that:

1. As officers moved to knock, the door was opened by a man matching the general description of the man sought to be arrested pursuant to a bench warrant. That man said, "oh shit" on seeing the two men, who w[ere] dressed as police officers, and attempted to shut the door.

2. Due to the particular facts of this case, it would be inappropriate and unsafe to require the officers to allow the door to be shut and then knock and announce their presence and purpose.

3. The move made by the officers inside the door to identify that man (who later turned out to be the defendant) was justified by concern for officer safety.

Following the denial of his motion to suppress, Defendant entered a conditional guilty plea to the trafficking count, reserving the right to appeal the denial of his motion to suppress.

DISCUSSION

{10} In reviewing a ruling granting or denying a motion to suppress, we apply the deferential standard of review adopted by our Supreme Court. State v. Lopez, 2005-NMSC-018, ¶ 9, 138 N.M. 9, 116 P.3d 80.

{11} In Attaway, 117 N.M. at 150, 870 P.2d at 112, our Supreme Court held that Article II, Section 10 of the New Mexico Constitution requires law enforcement officers executing a warrant to knock and announce their identity and purpose prior to entering the premises that are the subject of a search warrant. Shortly after our Supreme Court decided Attaway, the United States Supreme Court held that the knock-and-announce principle is a component of the reasonableness inquiry under the Fourth Amendment of the United States Constitution. Wilson v. Arkansas, 514 U.S. 927, 929, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). We have held that the knock-and-announce rule applies to the execution of arrest warrants as well as search warrants. State v. Halpern, 2001-NMCA-049, ¶ 9, 130 N.M. 694, 30 P.3d 383.

{12} It is well settled that absent consent, exigent circumstances, or hot pursuit, police officers may not enter a suspect's residence to effect an arrest without a warrant. See Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Where a warrant is...