AZ: Hudson waived by state for unreasonable entry

Giving defendant until count of three to open door or the police would break it down was not reasonable, and the motion to suppress should have been granted. The state did not claim Hudson made the search valid anyway. (Also, police audiotaped their announcement, but the tape disappeared before the suppression hearing, so they stipulated.) State v. Aguilar, 228 Ariz. 401, 624 Ariz. Adv. Rep 12, 267 P.3d 1193 (2011):

P21 Unlike the circumstances in King, in which the officers testified that, after they announced themselves, they could hear people moving things within the apartment, here, no testimony was presented that the officers heard any noise or made any other observations suggesting the imminent destruction of evidence. Instead, someone simply looked outside and observed police officers and defendant chose not to answer the door. As noted by the Supreme Court in King, “[w]hen law enforcement officers who are not armed with a warrant knock on a door … the occupant has no obligation to open the door or to speak.” Id. at __, 131 S.Ct. at 1862. That none of the occupants opened the door when the police officers initially demanded that the door be opened, and one occupant peeked outside the motel window, did not give rise to an exigency justifying a warrantless entry. Therefore, the officers’ subsequent threat to forcibly enter the motel room was not reasonable conduct under the Fourth Amendment and was therefore unlawful. Accordingly, the evidence seized by the police following their entry must be suppressed.FN4

4. The State did not contend in the trial court, and has not asserted on appeal, that the evidence seized pursuant to the subsequently obtained search warrant would nonetheless be admissible. Cf. State v. Ault, 150 Ariz. 459, 465-66, 724 P.2d 545, 551-52 (1986) (concluding that evidence seized pursuant to a valid search warrant based on independent-source evidence was admissible, notwithstanding an invalid initial warrantless entry).

[Note: So, a Hudson claim is subject to waiver by the state, as it should be. Some states, like my own, wrongly find that the state can never raise standing in the trial court yet assert it on appeal without making a record. The same should be true of whether Hudson should save a search, but that is not even subject to proof. It seems quintessentially a question of law.]