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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellant,

4 v. No. A-1-CA-37488

5 JIMMY JOHNSON,

6 Defendant-Appellee.

7 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY

8 Albert J. Mitchell, District Judge

9 Hector H. Balderas, Attorney General 

10 Santa Fe, NM

11 M. Anne Kelly, Assistant Attorney General

12 Albuquerque, NM 

13 for Appellant

14 Bennett J. Baur, Chief Public Defender

15 Kathleen T. Baldridge, Assistant Public Defender

16 Santa Fe, NM 

17 for Appellee

18 MEMORANDUM OPINION

19 VANZI, Chief Judge.

20 {1} The State has appealed from an order of suppression. We previously issued a

21 notice of proposed summary disposition, proposing to affirm. The State has filed a
2

1 memorandum in opposition. After due consideration, we remain unpersuaded by its

2 assertions of error. We therefore affirm.

3 {2} To briefly reiterate the relevant background, police obtained a warrant

4 authorizing a search of Defendant’s residence after a confidential informant completed

5 several controlled purchases of methamphetamine there. [RP 226] In the supporting

6 affidavit, the officer indicated that the confidential informant had observed Defendant

7 to be in possession of both a quantity of methamphetamine and a semi-automatic

8 pistol within the preceding 72 hours. [Id.] Additionally, the affiant indicated that a

9 state police officer had advised that he had “recently responded to a call for service

10 where [Defendant] threatened another individual with a firearm.” [Id.] In light of this

11 information, the affiant specifically requested that a “no-knock entry be authorized

12 due to concern that the known occupants of the residence are armed and dangerous.”

13 [Id.] That request was granted. [RP 220] Police officers executed the search six days

14 after the warrant was issued. [RP 221] Although they seized numerous items

15 consistent with drug trafficking, no firearms were found. [RP 221-23]

16 {3} Defendant moved to suppress all items recovered in the course of the search on

17 grounds that the officers’ failure to knock and announce prior to entry was unjustified.

18 [RP 79-86] The district court ultimately agreed. [RP 197-99] This determination is the

19 subject of the instant appeal. 
3

1 {4} “Absent various exceptions, Article II, Section 10 of the New Mexico

2 Constitution requires officers executing a warrant at a premises to knock and

3 announce their presence and authority and then wait a reasonable time to permit those

4 inside to voluntarily open the door.” State v. Jean-Paul, 2013-NMCA-032, ¶ 1, 295

5 P.3d 1072. One exception applies when there are exigent circumstances, such as in

6 situations involving specific information indicating that the danger to the officers

7 executing the warrant will be increased if the officers comply with the knock-and8 announce rule. Id. ¶ 10. “[The] court must look to the totality of the circumstances at

9 the time of entry from the point of view of a reasonable, well-trained, and prudent

10 police officer to decide whether the officer had a reasonable belief that there were

11 exigent circumstances.” Id. ¶ 11. The reasonableness of an officer’s belief in this

12 regard “requires specific, articulable facts, together with reasonable inferences

13 therefrom, as a basis for concluding that the facts and circumstances of the particular

14 entry justified dispensing with the knock-and-announce requirement.” Id. (internal

15 quotation marks and citation omitted). 

16 {5} Insofar as district court rejected the State’s claim of exigency, this Court must

17 view the facts in the light most favorable to that ruling and indulge in all reasonable

18 inferences accordingly. See State v. Lopez, 2005-NMSC-018, ¶¶ 9, 22, 138 N.M. 9,

19 116 P.3d 80 (discussing and applying the standard of review in this context). Although
4

1 the State briefly suggests in its memorandum in opposition that this approach does not

2 give adequate deference to the issuing court’s earlier determination, [MIO 2, 13]

3 insofar as we are called upon to review a suppression order based upon consideration

4 of the circumstances present at the time of entry, we remain of the opinion that Lopez

5 is the controlling authority. See id. ¶ 12 (indicating that where a no-knock entry is at

6 issue, “[t]he appellate court must consider all of the circumstances as found or

7 impliedly found by the trial court to be present at the time of entry.”); State v.

8 Williams, 1992-NMCA-106, ¶¶ 3, 16-18, 114 N.M. 485, 840 P.2d 1251 (holding that

9 regardless of the issuance of a no-knock search warrant, if exigent circumstances have

10 not been established at the time of entry, failure to comply with the knock and

11 announce rule in executing a search warrant invalidates the subsequent search).

12 {6} In light of the foregoing, we accept the district court’s determination that

13 officers who executed the warrant had reason to believe that Defendant was in

14 possession of methamphetamine and a semi-automatic pistol, [RP 197] and we take

15 into consideration the time of the entry, at 6:25 a.m. in the morning six days after the

16 warrant was issued and nine days after the firearm was seen by the confidential

17 informant. [RP 197-98] We also acknowledge the district court’s rejection of the

18 proffered evidence of propensity for violence, including the vague and unsubstantiated

19 information about the “call for assistance” allegedly involving Defendant. [RP 198]
5

1 We similarly accept the district court’s determination that there was “no indication

2 that [D]efendant had a willingness to use the pistol.” [RP 198] We take all of these

3 facts into consideration in determining whether exigent circumstances existed under

4 the totality of the circumstances.

5 {7} As we observed in the notice of proposed summary disposition, we have a

6 number of published cases dealing with claims of exigency, where officers have

7 reason to believe drugs and firearms are present. In Lopez, our New Mexico Supreme

8 Court upheld a finding of exigent circumstances based on a reasonable suspicion of

9 increased danger to officers, when the officers had information that there were two to

10 four people in the residence with access to multiple firearms including automatic

11 weapons and sawed-off shotguns, and that one of the residents was a drug dealer, and

12 when the warrant was executed in the afternoon, thereby lessening the degree of

13 intrusion but increasing the risk to officer safety. 2005-NMSC-018, ¶¶ 25-26. In State

14 v. Vargas, 1996-NMCA-016, ¶¶ 9, 13, 121 N.M. 316, 910 P.2d 950, this Court

15 similarly upheld a finding of exigent circumstances based on a reasonable suspicion

16 of increased danger to officers, when the officers had information that the defendants

17 were involved in dealing drugs, that both were gang members and carried weapons,

18 that one of the defendants had threatened police, and that during numerous police

19 dispatches to the defendants’ residence over the prior ten years, the defendants and
6

1 other residents had a propensity to behave violently and to challenge the police.

2 Finally, in State v. Attaway, 1994-NMSC-011, ¶¶ 32-34, 117 N.M. 141, 870 P.2d 103,

3 our Supreme Court upheld a finding of exigent circumstances based on a reasonable

4 suspicion of increased danger to officers, when the officers had information that the

5 defendant was a drug user and dealer, that he had previously been convicted of

6 weapons and drug charges, that he possessed a large arsenal of weapons including an

7 automatic weapon and a number of other guns, and he in the past had threatened

8 police officers. 

9 {8} Collectively, the foregoing authorities reflect the significance of a particularized

10 showing of danger, under the totality of the circumstances. Conversely, in the absence

11 of a reasonably particularized showing of danger, generalized concerns are typically

12 deemed inadequate to establish the exigency required to support no-knock entries.

13 For example, in Williams, 1992-NMCA-106, ¶¶ 16-17, we affirmed the district court’s

14 finding of no exigent circumstances, where the officers believed that the occupants

15 were drug dealers and that drug dealers are generally armed, but “there was no

16 evidence at the time of execution of the search warrant indicating that anyone

17 threatened the officers or that they were placed in fear by persons either inside or

18 outside the residence.” 
7

1 {9} In this case, viewing the evidence and the inferences therefrom in the light most

2 favorable to the district court’s ruling, the only indicia of dangerousness included

3 Defendant’s drug trafficking and the confidential informant’s observation of a firearm

4 in the residence nine days earlier. In contrast to the cases upholding findings of

5 exigent circumstances, there were no indications of numerous firearms within the

6 residence. And as previously stated, the district court specifically rejected the claim

7 of demonstrated propensity for violence, based on the vague and unsubstantiated

8 nature of the information concerning the call for assistance, and in the absence of any

9 evidence of prior convictions for crimes of violence or historical willingness to

10 threaten the police or to use firearms. [RP 198] See Lopez, 2005-NMSC-018, ¶ 9,

11 (observing that in this context, “[a]ll reasonable inferences in support of the district

12 court’s decision will be indulged, and all inferences or evidence to the contrary will

13 be disregarded”); Attaway, 1994-NMSC-011, ¶ 5 (“[A] trial court is to be given wide

14 latitude in determining [whether] an historical fact has been proven.”). We remain of

15 the opinion that these circumstances render the case far more analogous to Williams

16 than Lopez, Vargas, or Attaway. Accordingly, we conclude that the no-knock entry

17 was impermissible.

18 {10} In its memorandum in opposition the State argues that our focus is misplaced,

19 urging us instead to overturn the district court’s decision on grounds that it was
8

1 unduly concerned about delay in the execution of the warrant. [MIO 2, 6-14] We

2 remain unpersuaded. The fundamental question is whether the circumstances at the

3 time of entry justified dispensing with the knock and announce requirement. For the

4 reasons previously stated, we conclude that this question is answered in the negative.

5 In so concluding, it is not necessary to give additional consideration to the delay in the

6 execution of the warrant. We therefore decline to consider further whether the delay

7 is of special significance. See State v. Martinez, 2015-NMCA-013, ¶ 18, 343 P.3d 194

8 (observing parenthetically that we avoid rendering advisory opinions, and declining

9 on that basis to resolve a novel and unnecessary question).

10 {11} Accordingly, for the reasons stated in the notice of proposed summary

11 disposition and above, we affirm.

12 {12} IT IS SO ORDERED.

13 

14 LINDA M. VANZI, Chief Judge

15 WE CONCUR:

16 

17 M. MONICA ZAMORA, Judge 

18 

19 JULIE J. VARGAS, Judge