NM: 10-12 second wait for entry after knock-and-announce at 10 pm on a house was unreasonable

State knock and announce rule was violated where officers knocked for 10-12 seconds on the door of a house at 10 p.m. The house was large enough that nobody inside could get to the door in 10-12 seconds, and the officers never considered the size of the house; they just followed their customary practice. Motion to suppress granted because the failure to consider how long it would take an occupant to get to the door at night was a violation of the state constitution. State v. Ulibarri, 2010 NMCA 84, 148 N.M. 576, 240 P.3d 1050 (2010), cert. denied, 148 N.M. 942, 242 P.3d 1288 (2010):

P18 In our view, the present case is distinguishable from Hand and Johnson. Here 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.

P19 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 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.

Clearly a product of Hudson v. Michigan …