NM: 8 seconds not enough time for denial of entry in knock-and-announce

The officers entering eight seconds after announcing defendant’s home entered illegally because there was no denial or constructive denial of entry. The knock-and-announce rule serves important interests, and the search is suppressed. [Hudson was not cited. Here, one officer had a tape recorder on his person, and eight seconds was just not enough.] State v. Gonzales, 2010 NMCA 23, 2009 N.M. App. LEXIS 281 (December 21, 2009), Released for Publication February 23, 2010: [*21] We are unwilling to accept the State’s generic assertion that drugs could be destroyed as justifying the officers’ failure to comply with the knock and announce rule. See State v. Ortega, 117 N.M. 160, 162-63, 870 P.2d 122, 124-25 (1994) (holding that “the mere potential for destruction of evidence does not in itself give rise to any exigency,” but that if the officer has good reason, based on “particular circumstances,” that suspects will destroy evidence, that evidence will excuse compliance with the knock and announce rule). [*22] The knock and announce rule serves a number of purposes, including preventing the needless destruction of property and protecting “the sanctity of the home and individual privacy.” Attaway, 117 N.M. at 147, 870 P.2d at 109. Both of these purposes were frustrated in this case without justification. The police did not knock, did not wait, and did not provide Defendant with any realistic opportunity to allow them to enter. In the absence of a showing of exigency, we conclude that the law enforcement officers violated the knock and announce rule, such that all evidence stemming therefrom was properly suppressed. Accordingly, we affirm. [Having briefed knock-and-announce for SCOTUS three times, I am a firm believer in the importance of the privacy rights in the home the knock-and-announce rule protects. Some state courts will reject Hudson on state grounds in the right case, and a bad enough fact situation could still prevail in a federal court. Hudson was not a bad fact situation for the state.]

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