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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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

v. No. 33,374 Consolidated 4 with 33,857 5 HEATHER LUCERO and LUIS CORONADO , 6 Defendants-Appellees. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Jacqueline D. Flores, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 Jacqueline R. Medina, Assistant Attorney General 12 Albuquerque, NM 13 for Appellant 14 Bennett J. Baur, Acting Chief Public Defender 15 Sergio Viscoli, Assist ant Appellate Defender 16 B. Douglas Wood, Assistant Appellate Defender 17 Santa Fe, NM 18 for Appellee Heather Lucero 19 L. Helen Bennett, P.C. 201 Our recitation of the facts is based on the testimony of Detective Martinez, 18 Albuquerque Police Department Detectiv e Kelly Sinclair, and D.M., Defendant 19 Lucero’s daughter, at the district court’s hearing on Defendants’ motions to suppress. 20 2 L. Helen Bennett 1 Albuquerque, NM 2 for Appellee Luis Coronado 3 MEMORANDUM OPINION 4 HANISEE, Judge. 5
{1} The district court granted Defendants’ motions to suppress evidence after police 6 officers, who executed a search warrant, failed to knock and announce their presence 7 before entering Defendants’ residence. The State appeals, arguing that exigent 8 circumstances justified the officers’ decision to enter without knocking and 9 announcing. We affirm. 10 BACKGROUND 11
{2} Albuquerque Police Department CentralNarcotics Unit Detective Herman 12 Martinez learned from a paid informant thata woman named Heather and her partner 13 were dealing drugs out of their residence. 1 The informant toldDetective Martinez 14 what Heather looked like, that there were children in the residence, and that her 15 partner was a member of the TCK gang who went by the nickname “Lobo.” The 16 informant told Detective Martinez that Lobo was “possibly” armed. Detective 17 Martinez knew from experience that the TCK gang was “a very violent group that 183 ha[d] committed murders, been involved in the drug trade, and [had] threatened 1 witnesses in the past, including distri ct judges and, I believe, also the DA.” 2
{3} Detective Martinez obtained a search warrant for the residence based on the 3 information provided by the informant, but di d not include any mention of Lobo in his 4 probable cause affidavit. Detective Martin ez testified that the reason he omitted any 5 mention of Lobo in his application for a search warrant was that he was unable to 6 locate photographs or other information thatwould allow him to identify Lobo. At a 7 briefing before executing the warrant, Detective Martinez informed fellow officers 8 that Lobo was “possibly” present at the house and that he was “known to carry a 9 firearm.” 10
{4} Detective Martinez led the search team’s approach to the house. Detective 11 Martinez carried a door ram, and the officerbehind him carried a tool for prying open 12 security doors. The team planned to enter through a door on the South side of 13 Defendants’ residence beneath a carport. This entrance was protected by a wrought 14 iron mesh security door. Detective Martin ez tested the security door and found that 15 it was unlocked. The interior door was ajar. 16
{5} Peering through the wrought iron mesh security door, Detective Martinez 17 observed a person moving away from the door. Although he could not identify the 18 person through the security door, Detective Martinez surmised from the character of 194 the figure’s movement that the person “had seen us, and was running away from the 1 door, possibly to arm themselves or to destroy evidence.” Detective Martinez 2 immediately yelled “compromise[!]” three or four different times. Detective Martinez 3 opened the door and stood to the side while the rest of the search team entered the 4 residence. Members of the team yelled “Police[!] Search warrant[!]” as they entered. 5 The officers found narcotics and narcotics paraphernalia in the house, and Defendants 6 were charged by indictment with drug trafficking, drug possession with intent to 7 distribute, possession of drug paraphernalia, child abuse, conspiracy to commit child 8 abuse, and possession of a controlled substance. 9
{6} Defendants each filed a motion to suppress the State’s evidence, arguing that 10 the police officers’ failure to knock and announce their presence prior to entering their 11 residence violated Defendants’ rights under the Fourth Amendment to the United 12 States Constitution and Article II, Section 10 of the New Mexico Constitution. See 13 State v. Attaway , 1994-NMSC-011, ¶¶ 11-41, 117 N.M . 141, 870 P.2d 103 (describing 14 the“knock-and-announce” requirement under th e Fourth Amendment and Article II, 15 Section 10), holding modified on other grounds by State v. Lopez , 2005-NMSC-018, 16 ¶¶ 18-19, 138 N.M. 9, 116 P.3d 80. The State responded that the information provided 17 by the informant that an armed member of the TCK gang might be inside the house 182Alternatively, the State argued that under Hudson v. Michigan , 547 U.S. 586 18 (2006), suppression was not an appropriateremedy for the officers’ failure to 19 announce themselves before executing the s earch warrant. But th e State concedes on 20 appeal that so long as Attawayremains good law, suppression remains the default 17 remedy for knock-and-announce violations in New Mexico courts. See Attaway , 1994- 18 NMSC-011, ¶ 22 n.6. 19 5 created an exigency that jus tified entry without announcement. 2 1
{7} The district court granted Defendants’ motions to suppress. It concluded that 2 the fact “that there was possibly—and I stress ‘possibly’—a TCK member[,] who 3 may—and I stress the word ‘may’—be stay ing at the residence and who may also, 4 once again, be armed, and [that] information came from a paid confidential informant 5 who may or may not be reliable” did not create an exigency ju stifying the officers’ 6 failure to announce their presence before en tering the residence to effectuate the 7 search warrant. The State appeals the di strict court’s order suppressing evidence. 8 STANDARD OF REVIEW 9
{8} “In reviewing the grant of a motion to suppress, this Court must determine 10 whether the law was correctly applied to th e facts, viewing the facts in a light most 11 favorable to the [district] court’s ruling.” State v. Chavarria , 2001-NMCA-095, ¶ 2, 12 131 N.M. 172, 33 P.3d 922 (alterati on, internal quotation mark s, and citation omitted). 13 The district court’s findings of fact are accepted as true so long as they are supported 14 by “such relevant evidence as a reasonabl e mind might accept as adequate to support 15 a conclusion.” State v. Gonzales , 2010-NMCA-023, ¶ 4, 147 N.M. 735, 228 P.3d 519 166 (alteration, internal quotation marks, and citation omitted). 1 DISCUSSION 2
{9} “In New Mexico, law enforcement officers are constitutionally required to 3 knock and announce their identity and purpose, and wait a reasonable time to 4 determine if consent to enter will be given prior to forcefully entering a dwelling in 5 order to execute a search warrant.” State v. Hand, 2008-NMSC-014, ¶ 7, 143 N.M. 6 530, 178 P.3d 165 (alteration, internal quotation marks, and citation omitted). “By 7 requiring the police to announce the fact that they have a warrant and then give the 8 occupants time to voluntarily answer th e door, the knock-and-announce rule protects 9 those elements of privacy and dignity thatcan be destroyed by a sudden entrance and 10 gives occupants the time necessary to collectthemselves and to prepare for the entry 11 of the police before answering the door.” State v. Jean-Paul , 2013-NMCA-032, ¶ 9, 12 295 P.3d 1072 (internal quotation marks and citation omitted). “The rule serves a 13 number of additional purposes, including preventing the needless destruction of 14 property, reducing the risk of violence toboth occupants and police, and permitting 15 an opportunity for the occupants to comply with the law.” Id. 16
{10} Because the knock-and-announce rule is “p art of the constitutional protections 17 against unreasonable searches and seizures embodied in [A]rticle II, [S]ection 10 of 18 the New Mexico Constitution, and the F ourth Amendment to the United States 197 Constitution . . . . the ultimate questi on underlying any purported knock-and-announce 1 violation is whether the search and seizure was reasonable.” State v. Vargas , 2008- 2 NMSC-019, ¶ 11, 143 N.M. 692, 181 P.3d 684 (alteration, internal quotation marks, 3 and citations omitted). There are at least tw o circumstances where an officer’s failure 4 to knock and announce is deemed reasonable: (1) when obeying the knock-and5 announce requirement would be futile, and (2) when exigent circumstances counsel 6 against knocking and announcing. Jean-Paul , 2013-NMCA-032, ¶ 10. “The futility 7 exception applies when it is clear that th e authority and purpose of the police are 8 already known to those within the premis es, such that knocking and announcing that 9 the police intend to execute a warrant would serve no purpose.” Id. “Exigent 10 circumstances include situations involving, among other things, a demonstrable risk 11 that evidence will be destroyed while the offi cers wait to be denied entry, or specific 12 information indicating that the danger to the officers executing the warrant will be 13 increased, rather than d ecreased, if the officers co mply with the rule.” Id. (alteration, 14 internal quotation marks and citation omitted). 15
{11} “To determine whether an exception app lies, a court must look to the totality 16 of the circumstances at the time of entry from the point of view of a reasonable, 17 well-trained, and prudent police officer to decide whether the officer had a reasonable 18 belief that there were exigent circumst ances or that knocki ng and announcing would 198 be futile.” Id. ¶ 11 (internal quotation marks and citation omitted). “The 1 reasonableness of an officer’s belief is measured under a reasonable suspicion 2 standard, which is not high but which requires specific, articulable facts, together with 3 reasonable inferences therefrom, as a basis for concluding that the facts and 4 circumstances of the particular en try justified dispensing with the 5 knock-and-announce requirement.” Id. (internal quotation marks and citation omitted). 6 “In determining whether exigent circumstances existed, the appellate court must 7 weigh underlying policy considerations, and balance competing legal interests, 8 specifically between the safety of law en forcement officers and Fourth Amendment 9 privacy interests.” Lopez , 2005-NMSC-018, ¶ 11 (alteration, internal quotation marks, 10 and citation omitted). 11
{12} The State argues that the police officer s had an objectively reasonable basis to 12 conclude that entry into Defendants’ residence without knoc king and announcing was 13 required in order to protect their physical safety. The State’s brief in chief identifies 14 the following facts as furnishing a sufficient basis for this conclusion: (1) the officers 15 had probable cause to believe that the reside nce was being used as a base for a heroin 16 trafficking operation; (2) the informant’s report that a member of the TCK gang was 17 Defendant Lucero’s boyfriend, who might be present and armed inside the residence 18 at the time of the search; and (3) Detec tive Martinez’s personal experience with the 199 TCK gang and its history of violence. 1
{13} The State’s brief argues that this case is analogous to cases where courts have 2 found exigent circumstances based on the presence of weapons, see id. ¶ 19, or a 3 member of a gang with a reputation for violence, see Vargas , 1996-NMCA-016, ¶ 12, 4 inside the residence to be searched. But the State’s argument mischaracterizes the 5 district court’s rationale for suppressing the State’s evidence. The district court did not 6 reason that the presence of an armed gang member failed to establish exigent 7 circumstances as a matter of law; rather , it concluded that there was inadequate 8 evidence for a reasonable officer to conclude th at such an exigency existed in the first 9 place. 10
{14} This conclusion was based on a number of findings that the State fails to 11 challenge on appeal. First, the district court questioned the reliability of the paid 12 informant who told Detective Martinez thata dangerous gang member might be inside 13 Defendants’ residence. Second, the district court found that even if the informant was 14 reliable, the informant’s information provided at most a basis for further investigation, 15 not reasonable suspicion: in the district court’s words, the informant informed 16 Detective Martinez that “there was possibly—and I stress ‘possibly’—a TCK member 17 . . . [w]ho may—and I stress the word ‘may ’—be staying at the residence and [w]ho 18 may also, once again, be armed[.]” In other words, the district court concluded that it 1910 would not be reasonable to infer that an armed member of the TCK gang was in fact 1 inside the home at the time of the search based only on the informant’s vague and 2 equivocal statements to th at effect. Moreover, by faili ng to challenge these findings 3 on appeal and instead characterizing the ques tion on appeal exclusively as one of law, 4 the State has waived its opportunity to challe nge the district court’s findings of fact, 5 and therefore whatever viable basis which may have existed to overturn the district 6 court’s suppression order. See Stroope v. Potter , 1944-NMSC-049, ¶ 27, 48 N.M. 404, 7 151 P.2d 748 (explaining that the appellant b ears the burden of demonstrating that a 8 district court’s finding of fact is unsupported by substantial evidence). 9
{15} Even if the State hadn’t waived its challenge to the district court’s finding that 10 the informant’s tip was either unreliable or insufficiently specific to give rise to 11 reasonable suspicion, there is ample ev idence to support the district court’s 12 conclusion. The informant gave Detectiv e Martinez concrete, specific information 13 about one suspect: her first name “Heather,” her “physical de scription,” hair color, the 14 length of her hair, even the color of her eyes. By contrast, the most the informant 15 could say about Lobo was that he was a member of the TCK gang, a Hispanic male 16 who “might be” at the residence, and who “possibly had a handgun.” Detective 17 Martinez testified that he tried to but could not verify Lobo’s identity. Tellingly, 18 Detective Martinez did not include any reference to Lobo in his application for a 1911 search warrant or in the police report he filed after the warrant was executed. And on 1 cross examination, Detective Martinez conced ed his fear that there might be weapons 2 in the residence was more of a “general” fear that he felt whenever he executed a 3 search warrant, not a specific fear arisi ng from what the informant told him. While 4 this evidence is not relevant to the objective reasonablen ess of Detective Martinez’s 5 actions, it supports the district court’s conclusion that the informant’s reports about 6 Lobo were too vague and generalized to provide a reas onable basis for concluding that 7 Lobo was actually inside the house at the time Detective Martin ez approached the 8 door. See Jean-Paul , 2013-NMCA-032, ¶ 11 (stating that a police officer must possess 9 “specific, articulable facts, together with reasonable inferences th erefrom, as a basis 10 for concluding that the facts and circumstances of the particular entry justified 11 dispensing with the knock-and-announce requi rement.” (internal quotation marks and 12 citation omitted)). Viewing this evidence in the light most favorable to the district 13 court’s order suppressing evidence, as our st andard of review demands, we agree with 14 the district court’s conclusion that the in formant’s vague and unverifiable statements 15 about a “possibly” armed gang member who “might” be present in Defendants’ 16 residence did not furnish a reasonable ba sis to conclude that a dangerous gang 17 member was in fact inside Defendants’ residence at the time Detective Martinez 183 In addition to waiving any argument ch allenging the district court’s findings 14 of fact, the State has also failed to arguethat Detective Martinez’s reliance on the 15 informant’s statements about Lobo was reas onable at the time of the entry based on 16 the magistrate’s earlier determination that the informant was reliable enough to 17 provide probable cause for the issuance of a search warrant. Because this argument 18 was not raised by the State, this decision s hould not be read as rejecting this or any 19 other possible argument that Detective Martinez’s actions were reasonable under the 20 totality of the circumstances despite the ab sence of reasonable suspicion of exigent 21 circumstances. 22 12 entered. 3 Our precedents do not allow the substitution of a mere possibility for 1 “specific, articulable facts” in this context. Id. (internal quotation marks and citation 2 omitted). 3 CONCLUSION 4
{16} We affirm the district court. 5
{17} IT IS SO ORDERED. 6

______________________________ ___ 7 J. MILES HANISEE, Judge 8 WE CONCUR: 9

_________________________________ 10 MICHAEL E. VIGIL, Chief Judge 11

_________________________________ 12 RODERICK T. KENNEDY, Judge 13