July 08, 2010 – State of New Mexico v. Kenneth Ulibarri, No. 28,179

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	July 8, 2010
NO. 28,179
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
KENNETH ULIBARRI,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
Abigail P. Aragon, District Judge
Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM
for Appellee
Joe M. Romero, Jr.
Albuquerque, NM
for Appellant

OPINION
CASTILLO, Judge.
{1} 	Defendant Kenneth Ulibarri was charged by information with six counts of
criminal misconduct including trafficking of a controlled substance, possession of a
controlled substance, and possession of drug paraphernalia. Defendant filed a motion
to suppress the evidence obtained from the search of the home he shared with his
grandfather, 	Joe 	Roybal 	(Mr. 	Roybal). 	Defendant 	asserted 	that 	his 	Fourth
Amendment rights were violated when the officers forcibly entered the home without
waiting a reasonable time after knocking and announcing. The district court denied
the motion. Defendant appeals, and we reverse.
I. 	BACKGROUND
{2} 	At the hearing on Defendant’s motion to suppress, four persons testified: three
of the officers who executed the warrant and Mr. Roybal. A summary of the relevant
testimony follows. Defendant, his girlfriend, and her mother were the targets of an
undercover investigation into activities related to drug trafficking. 	The officers
obtained a search warrant for the home. Mr. Roybal was seventy-nine years old at the
time of the hearing and was neither a suspect of the investigation nor suspected of
wrongdoing of any kind. Shortly after Defendant and his girlfriend were arrested, the
officers executed the warrant. The lead officer was aware at the time of the search that

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neither Defendant nor any other individual targeted in the investigation was in the
home and that only Defendant and Mr. Roybal lived there.
{3} 	The search began at about 10:00 p.m. Eight officers were mobilized; four were
stationed at the front door and four at the back. The officers knocked and announced
their presence; they heard no reply of any sort from within. 	After waiting ten to
twelve seconds, the lead entry officer ordered his team to break a window as a
distraction and force entry using a battering ram. As the door swung inward, it hit Mr.
Roybal, knocking him to the ground and causing him injuries.
{4} 	Mr. Roybal testified that he was in his recliner watching TV when he heard a
light knock on his door. He explained that he got up and approached the door when
it suddenly came open and struck him on the head, rendering him temporarily
unconscious. He estimated that it took him ten seconds or less to get from the recliner
to the door. There was also testimony as to recorded conversations at the jail between
Defendant and Mr. Roybal during which they discussed the time between the knock
and announce and the forced entry.
{5} 	In its order denying the motion, the district court adopted the State’s proposed
findings and conclusions. 	The findings adopted summarized the 	account of the
testimony elicited at the suppression hearing: (1) the search was conducted pursuant
to a valid warrant; (2) Defendant resided with Mr. Roybal; (3) two teams of officers

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assembled at each of the home’s two entry ways; (4) numerous officers knocked and
announced; (5) the entry team testified that they forced entry after waiting ten to
twelve seconds; and (6) Mr. Roybal testified that the wait between the knock and entry
was between five and ten seconds, but on cross examination he admitted that he had
told Defendant during a tape-recorded conversation at the San Miguel County
Detention Center that the time was between thirty seconds and a minute. 	In the
adopted conclusions, the district court determined that “[u]nder the totality of the
circumstances . . . , it was reasonable for the officers to believe that they were being
denied entrance after at least ten to twelve seconds and as much as thirty seconds”
after the knock and announce.
{6} 	Following the denial of the motion, Defendant entered into a conditional plea
and disposition agreement. 	He pled guilty to possession of cocaine and heroin,
admitted to two prior felony convictions, and reserved his right to appeal the district
court’s denial of the motion to suppress.
II. 	DISCUSSION
{7} 	When we review a court’s denial of a motion to suppress, “[w]e view the facts
in the manner most favorable to the prevailing party and defer to the district court’s
findings of fact if substantial evidence exists to support those findings.” 	State v.
Urioste, 2002-NMSC-023, ¶ 6, 132 N.M. 592, 52 P.3d 964. 	“All reasonable

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inferences in support of the district court’s decision will be indulged in, and all
inferences or evidence to the contrary will be disregarded.” 	State v. Jason L.,
2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856 (alterations omitted) (internal
quotation marks and citation omitted). Whether a search or seizure is reasonable is
a mixed question of fact and law because determinations of reasonableness require
both factual determinations and reasoned judgment. State v. Attaway, 117 N.M. 141,
145-46, 870 P.2d 103, 107-08 (1994), modified on other grounds by State v. Lopez,
2005-NMSC-018, ¶ 8, 138 N.M. 9, 116 P.3d 80. We review those questions de novo.
Id.; Urioste, 2002-NMSC-023, ¶ 6 (indicating that search and seizure issues and
determinations of reasonable suspicion are mixed questions of fact and law that should
be reviewed de novo).
{8} 	We first address the evidence supporting the district court’s adopted finding and
related conclusion that the officers waited “as much as thirty seconds” after the knock
and announce. We observe that Mr. Roybal admitted on cross-examination that he
had made this estimation during a taped conversation with Defendant at the jail, but
on direct, he testified that the time period was between five and ten seconds. The
officers testified that the relevant time period was between ten and twelve seconds.
The State makes no argument that the thirty-second estimation should be used as
evidence in this case and relies solely on the testimony of the officers that ten to

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twelve 	seconds 	elapsed 	between 	the 	knock 	and 	announce 	and 	forced 	entry.
Accordingly, our analysis is based on a time period of between ten and twelve seconds
as this time period is supported by substantial evidence.
{9} 	“In New Mexico, law enforcement officers are constitutionally required to
knock and announce their identity and purpose, and wait a reasonable time to
determine if consent to enter will be given prior to forcefully entering a [dwelling] in
order to execute a search warrant.” 	State v. Johnson, 2006-NMSC-049, ¶ 10, 140
N.M. 653, 146 P.3d 298 (alteration in original) (internal quotation marks and citation
omitted). 	“The rule is part of the constitutional protections against unreasonable
searches and seizures embodied in article II, section 10 of the New Mexico
Constitution[] and the Fourth Amendment to the United States Constitution.” State
v. Vargas (Vargas II), 2008-NMSC-019, ¶ 11, 143 N.M. 692, 181 P.3d 684 (citations
omitted). “A failure to comply with this requirement may result in a determination
that the search was constitutionally unreasonable, and application of the exclusionary
rule to any evidence seized as a result of such search.” 	State v. Vargas (Vargas I),
1996-NMCA-016, ¶ 5, 121 N.M. 316, 910 P.2d 950 (filed 1995) (citation omitted).
{10} 	The knock-and-announce rule serves a number of purposes. It “prevents the
needless destruction of property, eliminates unnecessary intrusions on privacy, and
reduces the risk of violence to both occupants and police.” Id. In addition, it protects

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“those elements of privacy and dignity that can be destroyed by a sudden entrance”
and gives “occupants the time necessary to collect themselves and to prepare for the
entry of the police before answering the door.” 	Vargas II, 2008-NMSC-019, ¶ 15
(internal quotation marks and citation omitted). 	“The brief interlude between
announcement and entry with a warrant may be the opportunity that an individual has
to pull on clothes or get out of bed.” 	Id. (internal quotation marks and citation
omitted). Yet another equally important purpose of the knock-and-announce rule is
to “permit individuals an opportunity to comply with the law.” 	United States v.
Gallegos, 314 F.3d 456, 460 (10th Cir. 2002).
{11} 	“Refusal to consent to enter does not have to be explicit. 	Instead, [i]f the
occupants do not admit the officers within a reasonable period of time . . . , the
officers may be deemed to be constructively refused admittance, and they may then
enter by force.” State v. Hand, 2008-NMSC-014, ¶ 7, 143 N.M. 530, 178 P.3d 165
(alteration in original) (internal quotation marks and citation omitted). There are no
bright line rules establishing how long law enforcement officers must reasonably wait
to determine that they have been constructively refused admittance. Id. “Instead, in
each case, we consider the totality of the circumstances to determine whether the
officers’ wait was reasonably long enough to infer that they were being denied consent
to enter.” Id. “[T]he central inquiry in conducting this determination is whether an

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objectively reasonable officer would believe that occupants of the residence had a
reasonable opportunity to voluntarily admit the officer, thereby supporting a
conclusion that the occupants refused admittance.” Gallegos, 314 F.3d at 459.
{12} 	“We must determine whether the conduct of the police officers was reasonable
in light of the facts known to them at the time they executed the warrant.” Attaway,
117 N.M. at 147, 870 P.2d at 109. The burden is on the State to prove the officers
acted reasonably. See State v. Reynoso-Hernandez, 2003 ME 19, ¶ 9, 816 A.2d 826
(“When a defendant challenges the execution of an otherwise valid warrant pursuant
to the ‘knock[-] and[-]announce’ principles of the Fourth Amendment, the burden is
on the [s]tate to show the reasonableness of the execution of the warrant.”); cf. State
v. Ponce, 2004-NMCA-137, ¶ 7, 136 N.M. 614, 103 P.3d 54 (stating that it is the
state’s burden, when confronted with a challenge to the constitutionality of a search
or seizure, “to present testimony or other evidence showing that the arrest or search
met constitutional muster”).
{13} 	The 	State 	correctly 	observes 	that 	“if 	exigent 	circumstances 	exist,
noncompliance with the knock-and-announce rule may be justified.” 	See Johnson,
2006-NMSC-049, ¶ 12. However, this point of law is inapposite in this case. The
State does not argue that the officers failed to comply with the knock-and-announce
rule and that exigency justified their noncompliance. Rather, the State argues that the

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officers did comply with the knock-and-announce rule and that, under the totality of
the circumstances, the officers reasonably concluded that they were denied entry after
ten to twelve seconds. Accordingly, we do not consider the exigent circumstances
exception in this case.
{14} 	We turn now to the facts which comprise the totality of the circumstances in
this case. The warrant was executed at roughly 10:00 p.m. The officer leading the
entry team was aware that neither Defendant nor any other person targeted in the
investigation were at the home. It was further understood that Mr. Roybal, an elderly
man, was the only other person living at the home besides Defendant. The officers
knocked and announced at the home, waited ten to twelve seconds during which they
heard no response or any other noise from within, and forced entry. The lead entry
officer testified that it was customary to wait ten seconds following a knock and
announce before forcing entry.
{15} 	The State argues that, “[g]enerally, a ten-second waiting period has been
approved as reasonable when officers are attempting to execute a search warrant and
have knocked and announced.” Therefore, the State contends, “[w]hen there was no
response after ten seconds, it was reasonable for the officers to conclude that the
occupants were refusing entry[.]” Two recent New Mexico decisions regarding the
knock-and-announce rule, Hand and Johnson, address factors used to decide that a

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waiting period of at least ten seconds is reasonable.
{16} 	In Hand and Johnson, the officers executed the warrants in the early morning
hours. 	Hand, 2008-NMSC-014, ¶ 3; Johnson, 2006-NMSC-049, ¶ 2. 	Neither
defendant responded to the knock and announce. 	Hand, 2008-NMSC-014, ¶ 11;
Johnson, 2006-NMSC-049, ¶ 15. In both cases, the dwellings at which the search
warrants were executed—a motel room and a trailer—were quite small. Hand, 2008-
NMSC-014, ¶ 9; Johnson, 2006-NMSC-049, ¶ 17. Given these facts, our Supreme
Court held in both cases that the officers reasonably concluded that they were
constructively refused admittance after waiting at least ten seconds without a
response. Hand, 2008-NMSC-014, ¶ 13; Johnson, 2006-NMSC-049, ¶ 17.
{17} 	The basic reasoning underlying Hand and Johnson appears to be that, as a
general proposition, it should not take more than roughly ten seconds for an individual
within a small dwelling to respond to an officer’s request for entry. There was the
additional fact in Hand that the officers heard the “[d]efendant moving back and forth
within the trailer but never toward the door[.]” Hand, 2008-NMSC-014, ¶ 11. The
Court in Hand held that this fact, in conjunction with the small size of the trailer,
further justified the officers belief that constructive refusal had been given, by at least
the ten-second point in time. Id.
{18} 	In our view, the present case is distinguishable from Hand and Johnson. Here

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the warrant was executed at roughly 10:00 p.m. The Home is not small like a motel
room or a trailer; it is a house with two entrances and separate rooms. 	It was
understood that Defendant and the other suspects were not in the home when the
search 	warrant 	was 	executed 	and 	that 	Defendant 	resided 	with 	Mr. 	Roybal.
Accordingly, we conclude that the ten- to twelve-second period of silence which
followed the knock and announce in the present matter cannot be measured in the
same context as was the period of silence which followed the knock and announce in
Hand and Johnson. Therefore, the fact that a ten-second waiting period was deemed
reasonable in those cases is not determinative here.
{19} 	In our view, an objectively reasonable officer would consider the time at which
the search warrant is executed, the identity of the occupants likely to be within the
dwelling at the time of the search, and the size of the dwelling to be searched in
assessing whether a period of nonresponsiveness following a knock and announce
signals constructive refusal. No evidence was presented that the officers considered
any of these facts. Rather, the findings indicate that the officers relied on the ten to
twelve seconds of silence following the knock and announce, in and of itself, as the
basis for their conclusion that they had been constructively refused admittance.
Indeed, the lead officer testified that forcing entry after waiting ten seconds following
a knock and announce is a “customary” practice. Such a practice not only violates a

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clear tenet of our case law that there are no bright line rules as to how long an officer
must wait before inferring constructive refusal but, in this case, caused exactly the
type of harms the knock-and-announce rule is designed to prevent: Roybal’s home
was needlessly damaged; Roybal was unnecessarily injured; and the limited duration
of time between the knock and announce and forced entry interfered with Roybal’s
attempts to comply with the officers’ requests for admission.
{20} 	The State cites certain generalized conditions which, in its view, explain the
officers’ decision to wait only ten to twelve seconds. The State argues that the home
was being used for drug trafficking, that the officers could not know who was in the
home, and that the officers were assuring their own safety by quickly forcing entry.
The adopted findings do not mention these facts and the officers executing the entry
did not testify that their decision to wait only ten to twelve seconds before forcing
entry was premised on such concerns.
CONCLUSION
{21} 	The burden is on the State to prove that, under the totality of the circumstances
in this case, a wait of ten to twelve seconds was sufficient for the officers to conclude
that they were constructively refused entry and, therefore, entitled to enter by force.
We view the facts found by the district court in the light most favorable to the State,
but we find them insufficient to support a conclusion that the wait of ten to twelve

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seconds was reasonable in this case. Thus, we conclude that the knock-and-announce
rule was violated. 	We reverse the district court’s denial of Defendant’s motion to
suppress evidence, vacate Defendant’s plea, and remand to the district court for
further proceedings consistent with this opinion.
{22} 	IT IS SO ORDERED.
________________________________
CELIA FOY CASTILLO, Judge
WE CONCUR:
__________________________________
JONATHAN B. SUTIN, Judge
__________________________________
RODERICK T. KENNEDY, Judge