This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

STATE OF NEW MEXICO , 7 Plaintiff-Appellant, 8

v. NO. 28,738 9 JOSE LUIS ROSAS , 10 Defendant-Appellee. 11

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 12 Michael E. Vigil, District Judge 13
Gary K. King, Attorney General 14 Santa Fe, NM 15 Jacqueline R. Medina, Assistant Attorney General 16 Albuquerque, NM 17 for Appellant 18 Whitley Law Firm 19 L. Val Whitley 20 Santa Fe, NM 21 for Appellee 222 MEMORANDUM OPINION 1 ROBLES, Judge. 2 The State appeals an order granting De fendant’s motion to suppress evidence. 3 The district court listened to the officers’ belt tapes and ruled th at the officers failed 4 to comply with the knock-and-announce ru le. It found that there was no knocking 5 prior to entry, that the announcement and forcible entry into Defendant’s home 6 appeared to be simultaneous, and it suppressed the evidence. The State appeals, 7 contending that the court’s findings are in adequately supported and, if there was 8 partial compliance with the knock-and- announce rule, it was justified by exigent 9 circumstances. We conclude that the belt tapes provide substantial evidence 10 supporting the court’s findings, agree with th e court’s conclusion that the entry was 11 illegal, and affirm the order suppressing evidence. 12 I. BACKGROUND 13 On May 1, 2007, officers executed a search warrant at Defendant’s residence. 14 They expected Defendant, his wife, and tw o small children betweenthe ages of five 15 and ten years old to be there. The operation plan called for teams of officers at both 16 the front and back doors. The plan was fo r the back door to bebreached as close to 17 the breaching of the front door as possible. 183 We have reviewed the belt tapes of six officers. On so me of the tapes, the order 1 of “breacher up, breacher up” can be heard. One second later, police began to yell, 2 “State Police! Search warrant!” over and over. Although it is not entirely clear, on 3 some of the tapes, some sort of bang can be heard approximately three to four seconds 4 after the yelling begins. The tapes consis tently indicate that the door was breached 5 almost immediately after the police began announcing, and at no point did the officers 6 knock or wait before forcibly entering the home. 7 II. DISCUSSION 8 A. Standard of Review 9 “The standard of review for suppre ssion rulings is whether the law was 10 correctly applied to the facts, viewing th em in a manner most favorable to the 11 prevailing party.” State v. Hand , 2008-NMSC-014, ¶ 6, 143 N.M. 530, 178 P.3d 165 12 (internal quotation marks and citation omitted). “We review the district court’s purely 13 factual assessments to determine if [they are] supported . . . by substantial evidence.” 14 Id. (internal quotation marks and citation omitted). Substantial evidence is “such 15 relevant evidence as a reasonable mi nd might accept as adequate to support a 16 conclusion.” State v. Salgado , 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 17 (internal quotation marks) (quoting State v. Baca , 1997-NMSC-059, ¶ 14, 124 N.M. 18 333, 950 P.2d 776). After deferring to the c ourt’s factual findings, we review the 194 constitutional question whether the searchand seizure was reasonable de novo. See 1 Hand , 2008-NMSC-014, ¶ 6. 2 B. Knock-and-Announce Rule 3 The knock-and-announce rule requires th at officers entering a residence to 4 execute a search or arrest warrant, knock and announce their identity and purpose, and 5 then wait a reasonable time to determine wh ether consent to enter will be given. See 6 State v. Vargas , 2008-NMSC-019, ¶ 9, 143 N.M. 692, 181 P.3d 684; State v. Johnson , 7 2006-NMSC-049, ¶ 10, 140 N.M. 653, 146 P.3d 298; State v. Attaway , 117 N.M. 141, 8 149-50, 870 P.2d 103, 111-12 (1994), modified on other grounds by State v. Lopez , 9 2005-NMSC-018, ¶¶ 13-20, 138 N.M. 9, 116 P.3d 80. “There are no bright line rules 10 establishing how long . . . officers must reasonably wait,” and “we consider the 11 totality of the circumstances to determin e whether the officers’ wait was reasonably 12 long enough.” Hand, 2008-NMSC-014, ¶ 7 (citations omitted). 13 The district court found that “[the belt tapes] indicate that there was no knock 14 prior to entry into the home. There is clearly an announcement of the search, but it 15 appears to be simultaneous with entry intothe home.” The State disagrees with the 16 court’s findings, contending that the o fficers began announcing, and six seconds 17 elapsed until a banging sound can be heard. Th e State equates this sound with the first 18 strike of the battering ram and concludes that officers waited six seconds. It argues 195 that a six-second wait is sufficient to demonstrate compliance with the knock-and1 announce rule. There is, however, no citati on to a specific belt tape, and we did not 2 hear anything on the belt tapes indicati ng a six-second period between announcement 3 and forcible entry. 4 We defer to the district c ourt’s factual determinations. See State v. Jason L. , 5 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856 (observing that the reviewing court 6 must “defer to the district court with resp ect to findings of historical fact,” and all 7 “reasonable inferences in support of the [dis trict] court’s decision will be indulged in, 8 and all inferences or evidence to the contrary will be disregarded.” (alteration in 9 original) (internal quotation marks and citati on omitted)). We havelistened to the belt 10 tapes and do not hear a banging sound. Ona number of the be lt tapes, we do hear 11 some sort of bang, but it is not clear that the banging sound is the first strike of a 12 battering ram. Accepting arguendo that this banging sound was the first strike of the 13 battering ram, it occurs three to four s econds after the police began yelling, “State 14 Police! Search warrant!” 15 The district court did not find that the officers announced and waited six 16 seconds, and we are not persua ded to accept the State’s versi on of events. Even if we 17 were to give the State the benefit of the doubt and were to conclude that the bang is 18 the first strike of a battering ram, we reject the State’s ar gument. Given the extremely 196 short period of time between the beginning of yelling and the sound of a bang three 1 to four seconds later, we conclude thatthe court’s finding that the announcement of 2 the search “appears to be simultaneous w ith entry into the home” accurately reflects 3 the historical facts and is supported by s ubstantial evidence. The belt tapes clearly 4 establish that the officers did not knoc k and wait and, instead, announced while 5 forcibly breaching the door. 6 After deferring to the court’s factual findings, we review de novo whether the 7 search and seizure was reasonable. See Hand, 2008-NMSC-014, ¶ 6. Building on its 8 premise that the officers waited six seconds, the State contends that the officers fully 9 complied with the knock-and-announce rule. However, we accept the findings made 10 by the district court. Additionally, even if we were to accept the State’s six-second 11 waiting period, we would still c onclude it is insufficient. See State v. Gonzales , 2009- 12 NMCA-___, ¶¶ 18, 22, ___ N.M. ___, ___ P. 3d ___ (No. 28,411, Dec. 21, 2009) 13 (holding that an eight-second waiting period was insufficient). 14 Considering the findings made by the court, “[t]he ultimate question . . . is 15 whether the [officers’ course of conduct] was reasonable.” Johnson , 2006-NMSC16 049, ¶ 10. The district court concluded that it was not, and we agree. Unless there is 17 exigency, our cases require knocking, announcing, and waiting a reasonable period 18 of time. These are discrete and necessary requirements. See id. ¶ 12 (“Absent exigent 197 circumstances, officers must knock and announce their purpose and identity, then wait 1 a reasonable period of time to determine if consent to enter will be given before 2 forcefully entering.” (emphasis added)); Hand , 2008-NMSC-014, ¶ 11 (“We accept 3 the reasoning that an officer’s percepti on of movement within the place to be 4 searched, after knocking and announcing , is a significant component of the 5 constructive refusal analysis.” (emphasis added)). In this case, two of these 6 requirements—knocking and waiting a reas onable period of time—are missing. 7 The State argues that the court misunderstood the law, clai ming that the time 8 the officers were announcing should be include d in the relevant calculation, and there 9 was no need for a “silent pause.” We reject this argument. The appropriate 10 measurement is the time period between knocking and announcing and when forcible 11 entry begins. See Johnson , 2006-NMSC-049, ¶ 11 (relying on case law stating that 12 the relevant time period is from announcemen t to when the officers hit the door with 13 the battering ram). The time when the officers are using the battering ram does not 14 count as waiting. See id. (“When the officers began hitting the door with the battering 15 ram, they ceased ‘knocking’ and began ‘entering.’”). The court applied precisely this 16 analysis, found no appreciable time betweenannouncement and forcible entry, and 17 concluded that the officers’ failure to knock and wait any time at all was unreasonable. 188 The State suggests that the small si ze of the house justified the officers’ 1 conduct. The State has not indicated how this argument was raised below, and we 2 have not found it being made on the transcript of the suppression hearing or in the 3 record. Consequently, it does not appear this argument was presented below. Even 4 if it had been presented, we would reject it. In Johnson , the small nature of the hotel 5 room justified a relatively short wait be fore the police forcibly entered. Id. ¶¶ 5, 15, 6 17 (holding that a ten-second knock-and-announ ce period was sufficient in light of the 7 fact that the hotel room was so small it c ould be walked through in only a few steps). 8 Attempting to bring this case within the holding in Johnson , the State characterizes 9 this house as a “relatively small single story residence.” However, this case is not like 10 Johnson. The house is approximately 1640 squarefeet, and photographs indicate that 11 it is a common residence. We disagree that it should be considered to be like the hotel 12 room in Johnson. 13 C. Exigent Circumstances 14 Exigent circumstances will excuse compliance with the knock-and-announce 15 requirement. See id. ¶ 10. “Whether exigent circumstances exist[] . . . is a mixed 16 question of law and fact.” Lopez , 2005-NMSC-018, ¶ 11. After deferring to the lower 17 court’s factual findings, we review the de termination of exigent circumstances de 18

novo. Id. We apply an objective test to de termine whether “a reasonable, well- 199 trained, and prudent police officer would be lieve that full or partial compliance with 1 the rule of announcement would create or e nhance the danger to the . . . officers.” Id. 2 ¶ 12 (internal quotation marks and citation omitted). We c onsider the totality of the 3 circumstances. Id. ¶ 16. 4 The State argues that exigent circumstan ces existed and, therefore, partial 5 compliance would be sufficient. We disagree. The State’s argument that it partially 6 complied with the rule is premised on its interpretation that there was a six-second 7 wait. We have rejected that premise. A dditionally, we reject the State’s argument that 8 exigency existed. There is evidence that the officers ha d information that Defendant 9 “possesse[d] firearms” and had “[p]ossible weapons in the residence.” The officers’ 10 testimony at the suppression hearing clarif ied that these references were to a 11 “handgun,” and there is no evidence that the officers believed Defendant to have 12 access to anything other than a handgun. At the time of the operation, the officers 13 expected Defendant to be at home al ong with his wife and two young daughters. 14 Defendant had no criminal record, and there was no evidence that he had a propensity 15 toward violence. 16 With these facts in mind, we turn to the relevant analysis contained in Attaway 17 and Lopez

. Attaway found exigency where the defendant was a drug “dealer of 18 substantial quantity,” had a significant, vi olent criminal history, “had threatened 1910 officers” in the past, and had a “large arsenal of weapons[,] including an automatic 1 weapon, two sawed-off shotguns, a couple of rifles, and numerous handguns.” 117 2 N.M. at 153, 870 P.2d at 115. 3 Lopez , on which the State relies, modified Attaway , stating that Attaway may 4 have overstated the requirements for exigency. Lopezadopted a more flexible 5 approach under which weapons combined w ith drug dealing can establish exigency. 6 However, Lopezfound exigency where the defendant was engaged in criminality other 7 than drug dealing, selling stolen firearms, and had weapons consisting of “fully 8 automatic Mini-14’s and sawed-off s hotguns.” 2005-NMSC-018, ¶ 25 (internal 9 quotation marks omitted). In addition, there were two to four people at the residence 10 with access to these weapons. Id. 11 We recognize that Lopezmodified the threshold to establish exigency set by 12 Attaway , but we do not interpret it to hold that general allegations of drug dealing and 13 possession of a handgun are sufficient to estab lish exigency. On th e contrary, we read 14 Lopezas requiring specific facts showing heightened danger. Here, the State referred 15 to “weapons,” but the officers’ testimony cl arified that, based on information from the 16 informant, they believed De fendant had a handgun. There is no showing of a large 17 number of weapons or that they were th e unusually dangerous weapons like those in 18 Lopez . Unlike Lopez , there is no showing that Defendant was engaged in criminality 1911 other than drug dealing. In Lopez , there were two to four people in the residence with 1 apparent access to the automatic weapons and sawed-off shotguns. Id. ¶ 25. By 2 contrast, in this case, the occupants in the residence with De fendant were known to 3 be his wife and two young daughters. 4 Nor are we persuaded by the State’s argument that the possibility that drugs 5 could be destroyed constitutes exigency. That concern is present in every case 6 involving the execution of a search warrant in a drug investigation. 7 We cannot equate the State’s showing in this case with that considered 8 sufficient to establish exigency in Lopez

. If we were to consid er general allegations 9 of a handgun and drug dealing sufficient to es tablish exigency, th e exigency exception 10 would swallow the knock-and-announce rule, and we would essentially read the rule 11 out of existence. We do not mean to denigrate the danger to the officers when 12 executing a search warrant, but we interpret exigency to require something more than 13 a generic reference to drugs and a handgun, circumstances that will be present in 14 virtually every case. Attaway, 117 N.M. at 149, 870 P.2d at 111 (noting that the 15 officers’ general knowledge about drug deal ers “cannot constitutionally be a substitute 16 for . . . whether circumstances exist in the particular case which allow an 17 unannounced police entry.” (internal quotation marks and citation omitted)). 18 “Exceptions to the entry requirement mu st be founded on particularity and not on 1912 generality.” Id. at 152, 870 P.2d at 114 (internal quotation marks and citation 1 omitted). 2 Finally, the State argues that exigency is supported by the fact that Defendant 3 was a former correctional officer who had beentrained in “official tactics.” We are 4 not persuaded. It is the State’s burden to prove exigency. See State v. Vargas , 1996- 5 NMCA-016, ¶ 6, 121 N.M. 316, 910 P.2d 950 (stating that in the knock-and-announce 6 context, it is the state’s burden to estab lish exigency). The State’s reference to 7 “official tactics” is vague and could cover a wide variety of law enforcement tactics. 8 The only detail we are given is that Defe ndant was trained in hand-to-hand combat. 9 It is not clear that this information was argued below, or whether this training is the 10 same as the “official tactics” to which the State refers. In any event, we fail to see 11 how hand-to-hand training, matched agains t a full compliment of heavily armed and 12 trained officers entering through front and back doors, w ould make Defendant 13 sufficiently dangerous to justify dispensi ng with the requirements of the knock-and14 announce rule. The State argues that he ha d more knowledge in “official tactics than 15 the average citizen,” but it has not explaine d what this knowledge is, or how it actually 16 presented an increased danger. The State me ntions that he was team captain of the 17 “(inaudible) team,” but this unclear refe rence does not demonstrate exigency. 1813 The concerns expressed by the State—th e potential danger to officers, and the 1 possibility that a suspect will try to dis pose of drugs when he becomes aware that 2 officers are at the door—are valid con cerns. There are also countervailing 3 considerations, such as “preventing ne edless destruction of private property, 4 eliminating unnecessary intrusions upon priv acy, and reducing the risk of violence to 5 both police and occupants.” Attaway , 117 N.M. at 150, 870 P.2d at 112. The knock6 and-announce rule reflects an attemp t to balance competing interests, id. at 151, 870 7 P.2d at 113, and “‘is no mere pro cedural nicety or formality.’” Id. at 148, 870 P.2d 8 at 110 (quoting Ker v. California , 374 U.S. 23, 49 (1963)). Our case law protects 9 officers by requiring only a short time betweenannouncing and forcib le entry and, if 10 sufficient danger can be demonstrated, that time may be reduced or eliminated. Still, 11 we interpret our cases to require somethi ng more than generic concerns before non12 compliance or partial complian ce is excused. For the reas ons we have discussed, we 13 conclude the State has not met its burden to prove exigency. 14 III. CONCLUSION 15 We therefore conclude that the factual findings are adequately supported, and 16 the failure to comply with the knoc k-and-announce rule requires suppression. 17 Accordingly, we affirm. 1814 IT IS SO ORDERED. 1

______________________________ 2 ROBERT E. ROBLES, Judge 3

WE CONCUR: 4

____________________________ 5 JONATHAN B. SUTIN, Judge 6

____________________________ 7 CELIA FOY CASTILLO, Judge 8