Meeting the Knock and Announce Requirement

Officers executing a search warrant must announce their presence and purpose.

The courts of New Mexico follow the common law “rule of announcement” which dates from 1603. That rule requires officers executing a valid search warrant to announce their presence and purpose to anyone occupying the premises to be searched, request entry and be denied entry before forcing entry into the premises.¹ The “announcement requirement” is incorporated into the reasonableness standard of Art. II, § 10 of the New Mexico Constitution.² The purposes for the knock and announce requirement are (1) to make the occupants aware of the authority and purpose of the police in entering, (2) to avoid needless destruction of property, (3) to protect individual privacy, and (4) to protect the occupant and police from the possible violent response of a startled occupant suddenly confronted with an unannounced entry by an unknown ³

To comply with this requirement, officers must “knock” and “announce” their presence and purpose to the occupants of the premises. A knock includes a rapping on or near the door, or some other loud indication reasonably likely to draw the occupants’ attention to the announcement.⁴ An “announcement” is a loud declaration which conveys the intended message regarding the officers’ presence and purpose.

The knock and announce requirement necessarily includes a requirement that police wait for a reasonable amount of time after knocking and announcing before entering the premises.

This waiting period gives the occupants time to “collect themselves and to prepare for the entry of the police before answering the door.”⁵

There is no bright-line rule for determining what is a reasonable amount of time to wait before entering after the knock and announce; it will depend on the circumstances.⁶  For example, a ten-second wait before forcible entry into a very small motel room has been found reasonable when the occupants saw the police approach the room and failed to respond to the knocking.⁷ On the other hand, a ten to twelve-second wait before forcible entry into a house has been found insufficient when the entry occurred late at night, officers knew that the suspects were not home, and knew that an elderly, disabled person also lived on the premises.⁸ Generally, the length of the wait is judged by the surrounding circumstances, including the time of day or night, the size of the dwelling, which affects the amount of time it would reasonably take for an occupant to respond, and the identity of any likely occupants.⁹ Other circumstances, such as movement within the premises, can justify a shorter wait period before forcing entry.¹⁰ Officers may enter without announcement, or without waiting for permission to enter, under exigent circumstances.

Under certain circumstances, compliance with the announcement requirement may be excused. For example, the existence of exigent circumstances may necessitate entry without compliance with the announcement rule to ensure officer safety or prevent the destruction of evidence. Use of the exigent circumstances exception to the announcement requirement will be upheld where the officer has “good reason” to believe either that officer safety demands a no- knock entry or that an announcement or other delay will result in destruction of evidence.¹¹ However, a no-knock entry cannot be justified by a “good faith” exception. In other words, it is not enough that the officer has a good faith belief that a no-knock entry is justified. The officer must be able to articulate facts establishing a reasonable basis for believing exigent circumstances justify a no-knock entry.¹² For example, a no-knock entry may be justified by information that the suspects are dealing drugs, are often armed and have been violent in the past.¹³ Exigency is particularly apt when the search is for drugs because persons who deal in large narcotics transactions present a serious threat to officer safety regarding the potential use of weapons.¹⁴

Review of an officer’s on-the-spot determination that exigent circumstances require immediate action requires a practical, common sense approach to the facts and inferences available to the officer in the field.¹⁵ New Mexico courts are “reluctant to indulge in unrealistic second-guessing of a police officer’s judgment in a swiftly developing situation.”¹⁶ Thus, if police officers have been told the occupants of the premises to be searched have access to firearms, exigent circumstances may excuse incomplete compliance with the announcement requirement.¹⁷ Similarly, the knock and announce requirement may be sufficiently met when the police executing a warrant for heroin, who fear the heroin will be destroyed and that the occupants might have a weapon, knock on the door, hear movement and possibly shouting inside and immediately enter “without waiting to be invited or denied entry.”¹⁸ As long as well-trained, reasonable police officers could believe the circumstances justified lack of or partial compliance with the knock and announce requirement in order to reduce the risks to the officer or others, less than full compliance will not require suppression because the officer’s conduct is reasonable.¹⁹

Under federal precedent analyzing the Fourth Amendment, both partial compliance with the announcement requirement and a no-knock entry require a reasonable suspicion by the officers that either their safety, or the integrity of the investigation, would be jeopardized by meeting the announcement requirement.²⁰ This reasonable suspicion standard is familiar to police and courts in New Mexico from other contexts.²¹ Requiring the police to demonstrate a reasonable suspicion comports with the requirement that the State establish that a reasonable, well-trained and prudent police officer would believe that greater compliance with the knock and announce requirement “would create or enhance the danger to the entering officers.”²² Thus,

New Mexico courts determine the reasonableness of an officer’s belief that the exigent

circumstances justify dispensing with the knock and announce requirement “under a reasonable suspicion standard.”²³ That standard requires the officer to give specific articulable facts that, together with the reasonable inferences from those facts, support finding the existence of exigent circumstances.²⁴

Under exigent circumstances, officers executing a warrant may enter immediately after announcing themselves, without waiting for permission to enter.

One of the requirements of the knock and announce rule is that the officers must wait to be denied entry before they may use force to enter the premises. However, when exigent circumstances exist, officers may enter the premises without waiting a reasonable amount of time after knocking and announcing.²⁵ For example, if the people within the premises either deny or hinder entry into the premises, the officers need not wait for a response.²⁶ As soon as the search warrant is issued, the “governmental interests in the expeditious and safe execution of a search warrant are legitimate and strong.”²⁷ A defendant’s privacy interest is severely limited under such circumstances because the police officers’ right to enter exists from the moment the search warrant is issued, so that a defendant cannot lawfully deny the police entry.²⁸ As a result, the appropriate reaction of the police to any attempt to lock them out or hinder entry after knocking and announcing their purpose would be to enter forcibly. That is because, under such circumstances, knocking, announcing, and waiting for permission to enter is futile.²⁹ Similarly, officers may force entry if the people within the premises attempt to flee, rather than open the door.³⁰

A similar exception applies to the requirement that the officers announce their presence before forcibly entering the premises. If the people within the premises know of the officers’ presence, even though the officers have not actually announced their presence, the officers need not announce. However, absent exigent circumstances, the officers must wait for a reasonable amount of time under the circumstances before entering the premises, even if the door to the premises is open and the occupants are obviously aware of the officers’ presence.³¹ Once the officers have knocked and announced their presence, and waited a reasonable time, or identified exigent circumstances to justify immediate entry, the officers may enter the premises.³² If the occupants attempt to stop the entry, the officers may use force to enter.³³ That is true even if the officers use a ruse to get the door open or to inform the occupants of their presence.³⁴ However, both the use of a ruse, and the use of force must be reasonable under the circumstances.³⁵ In other words, the officers must identify specific exigent circumstances to justify the use of a ruse and the use of force. Such exigent circumstances may include a “heightened risk of danger to the officers executing the warrant or an enhanced risk that evidence would be destroyed.”³⁶

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ENDNOTES

1 State v. Attaway, 1994-NMSC-011, ¶ 11, 117 N.M. 141, 870 P.2d 103 (quoting Semayne’s Case, 77 Eng. Rep. 194, 195 (K.B. 1603)).

2 Id. ¶ 22.

3 Id. ¶ 13; State v. Jean-Paul, 2013-NMCA-032, ¶ 9, 295 P.3d 1072.

4 Battering on a door to gain entry does not count as the knocking part of the knock and announce requirement. State v. Johnson, 2006-NMSC-049, ¶ 11, 140 N.M. 653, 146 P.3d 298.

5 State v. Ulibarri, 2010-NMCA-084, ¶ 10, 148 N.M. 576, 240 P.3d 1050 (quoting State v. Vargas, 2008-NMSC-019, ¶ 15, 143 N.M. 692, 181 P.3d 684).

6 Johnson, 2006-NMSC-049, ¶¶ 13-14.

7 Id. ¶ 17.

8 Ulibarri, 2010-NMCA-084, ¶ 19; see also State v. Gonzales, 2010-NMCA-023, ¶ 16, 147 N.M. 736, 228 P.3d 519 (8-second wait before entering the house of an 84-year-old woman was insufficient when officers failed to articulate any exigent circumstances).

9 Ulibarri, 2010-NMCA-084, ¶ 19.

10 State v. Hand, 2008-NMSC-014, ¶ 11, 143 N.M. 530, 178 P.3d 165.

11 State v. Vargas, 1996-NMCA-016, ¶ 5, 121 N.M. 316, 910 P.2d 950.

12 State v. Gutierrez, 1993-NMSC-062, ¶¶ 50-56, 116 N.M. 431, 863 P.2d 1052.

13 Vargas, 1996-NMCA-016, ¶¶ 3, 13.

14 State v. Eskridge, 1997-NMCA-106, ¶ 26, 124 N.M. 227, 947 P.2d 502; State v. Lopez, 2005-NMSC-018, ¶ 19, 138 N.M. 9, 116 P.3d 80 (known presence of weapons in suspected drug dealer’s house may provide exigent circumstances to dispense with knock and announce requirement.). But see State v. Williams, 1992-NMCA-106, ¶ 16, 114 N.M. 485, 840 P.2d 1251 (affirming trial court’s finding that there were no exigent circumstances solely from the fact that the warrant was for drugs; there must be specific evidence that the suspect is dangerous, beyond the assumption that he is armed because he is a drug dealer).

15 See State v. Gomez, 1997-NMSC-006, ¶ 40, 122 N.M. 777, 932 P.2d 1 (“[I]f reasonable people might differ about whether exigent circumstances existed, we defer to the officer’s good judgment.”).

16 State v. Arredondo, 1997-NMCA-081, ¶ 18, 123 N.M. 628, overruled on other grounds, State v. Steinzig, 1999-NMCA-107, ¶ 29, 127 N.M. 752, 987 P.2d 409.

17 Steinzig, 1999-NMCA-107, ¶ 31.

18 State v. Sanchez, 1975-NMSC-059, ¶ 6, 88 N.M. 402, 540 P.2d 1281, overruled on other grounds, Attaway, 1994-NMSC-011, ¶ 4).

19 Vargas, 1998-NMCA-016, ¶ 3

20 Richards v. Wisconsin, 520 U.S. 385 (1997); United States v. Ramirez, 523 U.S. 65, 69 (1998).

21 See State v. Affsprung, 1993-NMCA-056, ¶ 10, 115 N.M. 546, 854 P.2d 873.

22 Attaway, 1994-NMSC-011, ¶ 32; Vargas, 1996-NMCA-016, ¶ 6.

23 Jean-Paul, 2013-NMCA-032, ¶ 11.

24 Id.

25 Id. ¶ 10; Ulibarri, 2010-NMCA-084, ¶ 10.

26 Jean-Paul, 2013-NMCA-032, ¶ 10; see also Attaway, 1994-NMSC-011, ¶ 27 n.7.

27 Attaway, 1994-NMSC-011, ¶ 26.

28 Id.; see also Gutierrez, 1993-NMSC-062, ¶ 11.

29 Jean-Paul, 2013-NMCA-032, ¶ 10. This is often referred to as the “futility exception” to the knock and announce requirement. Id.

30 State v. Kenard, 1975-NMCA-077, ¶ 16, 88 N.M. 107, 537 P.2d 1003; see also Attaway, 1994-NMSC-011, ¶ 27 n.7.

31 State v. Halpern, 2001-NMCA-049, ¶ 14, 130 N.M. 694, 30 P.3d 383.

32 Id.

33 See State v. Chandler, 1995-NMCA-033, ¶ 34, 119 N.M. 727, 895 P.2d 249 (“[O]nce the occupants have voluntarily opened the door to uniformed officers, the requirements of the knock and announce rule are satisfied”); Kenard, 1975-NMCA-077, ¶ 16 (officers may forcibly enter premises when suspects attempt to flee from an officer who has identified himself).

34 Kenard, 1975-NMCA-077, ¶ 16 (forcible entry upheld where an officer posed as a “hippie” seeking to buy drugs and was refused entry because the suspect attempted to flee after the officer identified himself); State v. Chavez, 1974-NMCA-148, ¶¶ 6-7, 87 N.M. 180, 531 P.2d 603.

35 State v. Reynaga, 2000-NMCA-053, ¶¶ 10-11, 129 N.M. 257, 5 P.3d 579.

36 Id. ¶ 11.