The New Mexico Court of Appeals was recently called upon to review the "knock and announce" rule in the case of State of New Mexico v. Jean-Paul. The gist of the opinion is that the not only is there a requirement that police knock and announce in New Mexico, they must also wait a reasonable period of time to enter or risk suppression of suppression of any evidence seized. "Reasonable time" is not a static definition. It depends on the circumstances. As a rule, however, a one second wait is not sufficient absent exceptional circumstances.
Both the 4th Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution protect citizens against unlawful search and seizure. One protection is the aforementioned "knock and announce" rule which requires police officers seeking to execute a warrant to knock and announce their presence to the occupants. Then they must wait a "reasonable" amount of time to allow the occupants a chance to voluntarily open the door. As you can imagine, the question is often what period of time is considered reasonable?
In this case, the police were seeking to execute a search warrant on the defendant's home. They knocked on the door and announced their presence, then after waiting only one second, they used a battering ram to enter the defendant's home. The police officers later explained that they waited such a short period because a man in the home was looking out a window at them as they approached. Inside the home, the officers found drugs and drug paraphernalia for which the defendant was charged with drug trafficking and possession of drug paraphernalia.
Before trial, the defendant sought to have any evidence discovered as a result of the search warrant's execution suppressed. She argued that the police did not wait a reasonable period of time after announcing their presence, and that no exceptions to the knock and announce rule were present.
There are only two exceptions to the knock and announce rule that could have applied in this case. The police are not required to knock and announce if it would merely be an empty gesture or if there are exigent circumstances. A court would consider knocking and announcing an empty gesture if the occupants were already aware that the police were on the premises for purposes of searching the premises. Similarly, the police would not be required to knock and announce if there was a real risk that evidence would be destroyed by waiting. However, it should be noted that simply because the occupants see the police approaching does not give rise to an exception.
In determining whether police officers waited long enough after knocking to forcibly enter the premises, the courts will often review the size of the premises, the time of day and whether the police know someone is inside. While the defendant's home in this case was small, New Mexico courts have only approved wait times of ten seconds or more, unless there are exigent circumstances. Only waiting one second, like in this case, does not provide the occupants with enough time to collect themselves and move toward the door to allow the police officers entry into the defendant's home. While in some cases a court will permit a shorter wait due to concerns by the police that do not quite reach the level of exigent circumstances, the police officers could not provide evidence of any such concerns here.
The court noted that while both the 4th Amendment and the New Mexico Constitution follow the knock and announce rule, the remedy for a violation is different under the two. The New Mexico Court of Appeals recognized that under the 2006 U.S. Supreme Court Case of Hudson v. Michigan, violation of the knock-and-announce rule does not necessarily require suppression of the evidence. As such, application of the federal law here would likely have led to very different consequences for the defendant.
In short, the police must knock and announcing their presence. They must also under New Mexico law wait a reasonable period of time to enter the premises or face suppression of any evidence seized. One second is clearly not sufficient. How long the police must wait will depend on the circumstances. If you have been arrested, and your property searched under a warrant, it highly advisable to seek the assistance of attorney knowledgeable of search and seizure issues in New Mexico.
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