(dissenting).
{35} I respectfully dissent from the majority opinion. I agree with the majority that announcement is preferable. I also agree with the majority’s discussion of the history, importance, and purpose of the knock-and-announce rule, but I conclude that the ultimate test, reasonableness, was met in this case. The majority opinion appears to create a bright-line rule of announcement before officers make any entry beyond a doorway. But see, e.g., State v. Duran, 2005-NMSC-034, ¶ 34, 138 N.M. 414, 120 P.3d 836 (“Our case law has consistently disfavored a bright-line test in analyzing Fourth Amendment questions.”); State v. Bricker, 2006-NMCA-052, ¶ 26, 139 N.M. 513, 134 P.3d 800 (“Our appellate courts have preferred a balancing-of-interests test for reasonableness, rather than a bright-line test.”), cert. granted, 2006-NMCERT-005, 139 N.M. 568, 136 P.3d 569. Because I believe that the reasonableness test was met under the specific and unusual facts of this ease, I dissent.
{36} When our Supreme Court in Attaway first held that the knock-and-announce rule has constitutional significance, it stressed that “the ultimate question in all cases regarding alleged search and seizure violations is whether the search and seizure was reasonable.” Attaway, 117 N.M. at 149, 870 P.2d at 111. Attaway held that “partial compliance or non-compliance with the rule of announcement may be excused if exigent circumstances exist.” Id. at 151, 870 P.2d at 113. These rules remain unchanged. See Lopez, 2005-NMSC-018, ¶ 27, 138 N.M. 9, 116 P.3d 80.
{37} “[T]he reasonableness of the manner of execution of a warrant must be evaluated in the light of each of the interests served by the announcement rule.” Reynaga, 2000-NMCA-053, ¶ 13, 129 N.M. 257, 5 P.3d 579. In weighing the purposes served by the knock-and-announce rule, I find Chandler to be persuasive. In Chandler, police officers executing a search warrant knocked on the defendant’s door. Chandler, 119 N.M. at 734, 895 P.2d at 256. The defendant answered and police entered without announcing their purpose. Id. at 734-35, 895 P.2d at 256-57. We held that it was not ineffective assistance of counsel for the defendant to fail to raise a knock-and-announce challenge because it was “highly unlikely that [the defendant] could have prevailed.” Id. We noted that “[o]nce the property owner answers the door, opens it, and sees uniformed officers, there is no need to destroy property through forced entry; the home is not defiled through a surprise assault; and the occupants will not resort to violence in the misapprehension that robbers have attacked their dwelling.” Id. at 735, 895 P.2d at 257.
{38} In this case the policy concerns underlying the adoption of the knock-and-announce rule — officer safety, protection of privacy, and avoidance of property damage— were all better served by the officers’ actions than by a strict application of the knock-and-announce rule. See id. The majority’s proposed procedure — requiring officers to allow Defendant to close the door before announcing their presence and waiting for a response — would have only frustrated the purposes of the knock-and-announce rule.
{39} First, had Defendant successfully closed his door against the orders of the officers, he could have escaped or armed himself. This case is not one in which Defendant might have mistakenly attacked the officers in response to what appeared to be a burglary or another illegal intrusion. See, e.g., Reynaga, 2000-NMCA-053, ¶ 13, 129 N.M. 257, 5 P.3d 579 (noting that officer safety is better preserved by avoiding “forcible entry by an officer masquerading as a maintenance man”). The officers were both in uniform and Defendant’s response to their presence indicated that Defendant knew they were officers. This case is also not a situation in which it was unclear whether Defendant intended to resist police action. See, e.g., id. ¶ 12 (“It is not at all clear to us that it is to an officer’s advantage for [the decision to accede or resist authority] to be made after the officer has entered the premises to be searched.”). At the time that the majority would have had the officers step back and announce the purpose of their visit, Defendant was actively, and forcefully, disobeying the directions of the officers to not close the door.
{40} Second, the officers would have been more likely to damage property in their entry if they had waited until the door was completely closed before forcing it open. See Reynaga, 2000-NMCA-053, ¶ 13, 129 N.M. 257, 5 P.3d 579 (noting that “[a] ruse that causes an occupant to open a door ... may very well serve the interest of avoiding the damage to the door that would result from a breaking”); see also, e.g., Hudson, — U.S. at -, 126 S.Ct. at 2165 (noting that one purpose of the knoek-and-announce rule is to allow the door to be opened rather than broken); United States v. Kemp, 12 F.3d 1140, 1142 (D.C.Cir.1994) (noting that the interest in “preventing unnecessary destruction of property [is not] implicated when the door is open and the officers can enter peaceably into the premises”).
{41} Finally, Defendant and others in the residence are more likely to be surprised, and their privacy invaded, a minute or two after the door closes than they are when the door remains open and they know the interi- or of their apartment is exposed to view by passersby in the hall. I certainly agree with the majority that “[t]he sanctity of the home is not abandoned simply by leaving a door cracked.” Halpern, 2001-NMCA-049, ¶ 14, 130 N.M. 694, 30 P.3d 383. But the privacy interests served by the knock-and-announee rule are not identical to the privacy interests served by the rule requiring a search warrant. The interest served by the knoek-andannounce rule:
protects those elements of privacy and dignity that can be destroyed by a sudden entrance. It gives residents the opportunity to prepare for the entry of the police. 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. In other words, it assures the opportunity to collect oneself before answering the door.
Hudson, — U.S. at -, 126 S.Ct. at 2165 (internal quotation marks and citation omitted). In this ease, Defendant had collected himself in anticipation of leaving his apartment when the door opened. I would therefore conclude that Defendant’s privacy interest, if any, was minimal, and that the majority’s proposed procedure — allowing Defendant to close the door and then reopen it after a moment had passed — would not have significantly furthered his interest.
{42} In balancing the totality of the circumstances, then, I would hold that the interests underlying the knoek-and-announce rule were met in this case and that the officers’ entry was therefore reasonable. See Lopez, 2005-NMSC-018, ¶¶ 26-28, 138 N.M. 9, 116 P.3d 80 (holding that determination of reasonableness requires viewing the totality of the circumstances and weighing the interests of the State against the interests of the defendant). The State’s interest in safely apprehending Defendant were strong. Cf. id. ¶ 26 (finding a “legitimate and strong” interest in “the expeditious and safe execution of a search warrant”). Defendant’s interests in property and privacy, on the other hand, were minimal at the time he opened the door. See Attaway, 117 N.M. at 151, 870 P.2d at 113 (“An otherwise legal search pursuant to a warrant is not made unreasonable by an unannounced entry when privacy and occupant safety interests are minimal and the interests of law enforcement are strong.”).
{43} The facts of this ease, particularly when viewed in the light most favorable to the State, evidence reasonable actions on the part of the police officers. The officers went to an apartment to execute a valid warrant. Before they knocked, the door opened and officers saw a man fitting the description of the person they sought. Both officers testified that upon seeing the officers, the man attempted to retreat into the apartment and close the door. The officers told Defendant not to close the door and put a foot into the doorway to prevent Defendant from disobeying them. It would have been unreasonable for the officers to allow Defendant to close the door and escape while the officers waited for him to return to the door, and the law should not require such an impractical result. I agree that it would have been better had the officers informed Defendant that they had a warrant immediately upon seeing him, but I would not fault them for a delay of only a few seconds while they prevented Defendant from barricading himself inside the apartment or escaping through a window.
{44} Furthermore, our courts have recognized a futility exception to the knock-and-announce requirement. See, e.g., Lopez, 2005-NMSC-018, ¶ 10, 138 N.M. 9, 116 P.3d 80 (listing circumstances in which the knock- and-announce rule is not mandated, such as when officers have reasonable suspicion that compliance would be futile); Attaway, 117 N.M. at 151 n. 7, 870 P.2d at 113 n. 7 (recognizing that circumstances besides officer safety concerns, including when a “suspect knows of officer’s presence and purpose before compliance,” might justify noncomplianee with the knock-and-announce rule); State v. Ortega, 114 N.M. 193, 196, 836 P.2d 639, 642 (Ct.App.1992) (noting that noneomplianee with the knock-and-announce rule has been held to be justified when occupants know of the presence and purpose of law enforcement), aff'd, 117 N.M. 160, 870 P.2d 122 (1994); State v. Kenard, 88 N.M. 107, 108-09, 537 P.2d 1003, 1004-05 (Ct.App.1975) (holding that the officer’s failure to state his purpose was justified when the defendant fled from the door upon being confronted by police). The United States Supreme Court has also recognized that incomplete compliance with the knock-and-announce rule may be excused when full compliance would have been futile. See, e.g., Ker v. California, 374 U.S. 23, 47, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (Brennan, J., dissenting in part) (“Even if probable cause exists for the arrest of a person within, the Fourth Amendment is violated by an unannounced police intrusion into a private home, with or without an arrest warrant, except ... where the persons within already know of the officers’ authority and purpose ... or ... where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is being attempted.”), adopted in relevant part by Sabbath v. United States, 391 U.S. 585, 591 n. 8, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (“In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.”).
{45} The circumstances in this case justify the officers’ partial compliance. I agree with the majority’s refusal “to adopt a presumption that a homeowner who peacefully opposes an apparently warrantless ... entry necessarily will resist the authority of a warrant.” However, given the facts of this case, in which Defendant disobeyed the commands of uniformed officers immediately before their entry into his apartment, I believe it would have been futile for the officers to announce their purpose. Defendant’s actions were not mere opposition and the officers’ response was reasonable. At least two other jurisdictions have concluded that the knock-and-announce rule was not violated by police action in similar situations. See State v. Berry, 174 Wis.2d 28, 496 N.W.2d 746 (Ct.App.1993); Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984); see also 2 LaFave, supra, § 4.8(c), at 671 n. 59 (“But if the announcement to the person who answers the door that the caller is a policeman results in immediate resistance, entry may be accomplished prior to announcement of purpose.... ”); 2 Joseph G. Cook, Constitutional Rights of the Accused § 4:40 (3d ed.1996) (“A refusal to open the door once the presence of officers is known will justify a forcible entry.”).
{46} Officers in Berry were approaching a house to execute a search warrant when they saw an occupant looking at them from a window. Berry, 496 N.W.2d at 747. The uniformed officers yelled “police,” but the occupant moved to close the front door. Id. When the officers reached the house, they opened the front door, which had not been completely closed, without any additional announcement. Id. The court found no knock- and-announce violation:
Likewise, we determine that rigid compliance with the rule of announcement in this ease would have been a useless gesture. [The defendant] had been looking out the window as the officers approached the house and yelled “Police.” The officers were dressed in a manner that clearly identified them as law enforcement. After seeing the officers, [the defendant] began to close the door in an obvious attempt to prohibit the officers from gaining entry. From this action, the officer reasonably believed that to announce that he had a search warrant to wait for admission would have been futile.
Id. at 748. The court noted that “[i]t stretches belief to suppose that [the suspect] would have immediately stopped pushing on the door if [the officer] had added, after identifying himself as a police officer, that he possessed a search warrant.” Id. at 749 (alterations in original) (internal quotation marks and citation omitted).
{47} In Davis, officers executing a search warrant were approaching a house when a man saw them and fled inside. Davis, 480 A.2d at 1041. The police knocked and announced their presence, but did not inform the occupants of the house that they had a warrant and did not wait more than ten seconds before forcing entry. Id. The defendant argued that officers violated the knock- and-announce rule both by failing to state that they had a warrant and by failing to wait a reasonable amount of time before forcing entry. Id. The court disagreed. Instead, the court noted that “[i]t has long been the rule ... that where the police are reasonably certain that the occupants are aware of their presence and purpose, the police need not knock and announce,” and held that “[w]here an occupant sees the police and immediately retreats back into the premises, as is the case here, the duty of the police to knock, announce, and wait is obviated.” Id. at 1042.
{48} Because I conclude that further compliance with the knock-and-announee rule would have protected no legitimate interest of Defendant and could have served no purpose but allowing Defendant to arm himself or escape, I believe the Fourth Amendment and Article II, Section 10 were not violated by the officers’ entry in this case. I do not believe that it is reasonable to require officers to follow futile procedures. I therefore agree with the district court that, under the limited facts of this ease, the officers’ conduct was justified.
{49} I also disagree with the majority’s characterization of Defendant’s actions in resisting the officers as “an assertion of constitutional rights.” Certainly shutting a door can successfully terminate a consensual encounter with police. Cf. State v. Scott, 2006-NMCA-003, ¶ 25, 138 N.M. 751, 126 P.3d 567 (noting that a police encounter is a non-consensual seizure “if a reasonable person would not have felt free to decline [the officers’] requests to open the door or to otherwise ignore the [officers’] presence”) (alterations in original) (internal quotation marks and citation omitted), cert. granted, 2006-NMCERT-001, 139 N.M. 273, 131 P.3d 660. But here the encounter was non-consensual from the moment the officers told Defendant not to close the door. As I conclude above, I believe the officers were engaged in lawful execution of a warrant and did not violate the Fourth Amendment or Article II, Section 10. But even if the officers were engaged in unlawful police conduct, I believe that Defendant did not have the right to disregard their commands. Nor did Defendant have the right to close his door on Officer Elrick’s foot, even if it was in the doorway in violation of Defendant’s rights. In New Mexico the remedy for an unlawful arrest or search is civil. See State v. Chamberlain, 112 N.M. 723, 729, 819 P.2d 673, 679 (1991) (“If the [police conduct] had been illegal, there are remedies within the law to protect appellant’s rights. Those remedies do not include resort to self-help measures.”). The victim of a peaceable, but illegal, arrest has no right to commit assault or to otherwise resist the commands of the arresting officers.
{50} For the above-stated reasons, I respectfully dissent.