¶1(concurring in part dissenting in part).
¶2Finding no quarrel with the majority’s reasons and holding in sections (1), (3), (4) and (5), I concur with the majority opinion in these sections. I cannot agree, however, with the reasoning nor the holding in section 2 which discusses exigent circumstances. From that section, I therefore dissent.
¶3Exigent Circumstances.
¶4It is well-established that prior to forcible entry, police officers must give notice of their authority and purpose and be denied admittance. See State v. Sanchez, 88 N.M. 402, 540 P.2d 1291 (1975); State v. Baca, 87 N.M. 12, 528 P.2d 656 (Ct.App.1974). This notice requirement serves a number of valid purposes. For example, an unannounced breaking and entering into a home could lead the occupants to believe their safety is in jeopardy, thereby resulting in unnecessary defensive measures. Further, notice minimizes the mistaken chance of entry of the wrong premises and the resultant subjecting of innocent persons to “the shock, fright, or embarrassment attendant upon an unannounced police intrusion.” See Ker v. California, 374 U.S. 23, 57, 83 S.Ct. 1623, 1642, 10 L.Ed.2d 726 (1963) (Brennan, J., dissenting). And finally, notice allows the occupants an opportunity to voluntarily admit officers into their home, thereby minimizing the risk of property damage. See 2 Wayne R. La-Fave, Search & Seizure § 4.8(a) at 272 (1987).
¶5Non-compliance with the knock and announce procedure is justified if exigent circumstances exist at the time of the warrant’s execution. See State v. Sanchez. Thus, the determinative question is whether, at the moment of entry, the officers possessed an objectively reasonable belief that evidence was being destroyed, that an escape was imminent, or that a risk of harm existed to either an occupant or the officers involved. See State v. Sanchez; State v. Copeland, 105 N.M. 27, 727 P.2d 1342 (Ct.App.1986); State v. Arce, 83 Or. App. 185, 730 P.2d 1260 (1986). I disagree with the majority’s holding that exigent circumstances in the present case obviated the requirement to comply with the knock and announce requirements.
¶6The facts indicate that the officers ran into the residence immediately behind the children. A running child first opened a screen door and ran inside with the officers in tow. I am not convinced that the children’s yells constituted an adequate substitute for the notice requirements, or that a reasonable assumption could be made that the occupants were alerted to the presence of the police. Although the parties agree the children were yelling when they ran into the house, there is some disagreement as to the content of the children’s cries. Officer Lara, who ran into the residence immediately behind the children, testified the children yelled “cops! cops!” Co-defendant’s wife, who was inside the residence, testified the children yelled “they’re going to kill us!” Sheriff Tucker, who reached the residence at the same time as the children, testified the children yelled “police!”
¶7Even assuming a child yelled “police” or “cops,” I disagree that a reasonable conclusion can be made that the purpose of the officers’ arrival was apparent. See Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1985); Hair v. United States, 289 F.2d 894 (D.C.Cir.1961); State v. Gassner, 6 Or.App. 452, 488 P.2d 822 (1971) (it is not enough that by knocking on the door, or in some other way, the occupant has been made aware that someone is outside). To conclude the yells fulfilled the notice requirements would be tantamount to a holding that officers themselves could yell “police” immediately prior to making an entry and thereby satisfy the purpose and requirement of a prior announcement. I cannot agree with a holding that supports such a position. Thus, I am not convinced that the children’s yells, moments before the officers entered the house, constituted sufficient notice of the officers’ authority and purpose.
¶8Moreover, even if the children’s yells announced the officers’ presence, there is no indication that the yells were intended to or could “tip off” the adult occupants so that evidence could be destroyed. The facts here are unlike the situation addressed in People v. Vargas, 36 Cal.App.3d 499, 111 Cal.Rptr. 745 (1974), in which the officers reasonably could have believed the words yelled in Spanish, not understood by the officers, were intended as a warning to the residence’s inhabitants. Here, the children’s yells were in English and understood by the officers. Moreover, as opposed to believing the yells were intended as a warning, cf. People v. Vargas, Officer Lara testified that he believed the children were yelling because they were scared upon observing officers run toward the house with guns. In addition, we note that the yells in Vargas took place after an officer had identified himself as a narcotics agent to an older child of approximately seventeen years who was in the front yard. Here, however, the children who yelled were younger (5-6 years old) and ostensibly unaware of the officers’ authority. Officer Lara himself testified at the suppression hearing that the child yelling “cops” was of no significance to him because “ … the little kid was just scared, uh I mean to see a whole bunch of people coming running toward their house with guns and they just took off yelling.”
¶9Further, considering Officer Lara’s testimony that there was no indication the suspects had guns, it does not appear that the officers believed that a risk of harm existed to any of the persons involved. Cf. United States v. Justice, 835 F.2d 1310 (10th Cir.1987), cert. denied, 487 U.S. 1238, 108 S.Ct. 2909, 101 L.Ed.2d 940 (1988) (officer’s observation of juvenile shooting a gun in the front yard and officer’s observation that the door appeared to have been recently kicked in justified officer’s entry without a warrant). Officer Lara also testified there was no indication the suspects were attempting to destroy evidence before officers entered the house. In addition, the facts do not reflect that the officers believed an escape was imminent. Cf. United States v. Carter, 566 F.2d 1265 (5th Cir.), cert. denied, 436 U.S. 956, 98 S.Ct. 3069, 57 L.Ed.2d 1121 (1978) (officer heard an individual yell “its the cops” and then heard people inside running away from the door); Commonwealth v. Beard, 501 Pa. 385, 461 A.2d 790 (1983) (upon observing police, the suspect ran into the house yelling “police” and locked the door behind him). Based on the foregoing discussion, contrary to the majority’s position, it does not appear that a prudent, cautious, trained officer should “reasonably conclude that swift action [was] necessary.” I would hold that exigent circumstances did not exist at the time of the warrant’s execution.
¶10I do not intend my discussion, however, to intimate a view that previously obtained information should not be able to be taken into account in determining the necessity of dispensing with ordinary notice requirements. Rather, I would hold that an examination of previously obtained information, together with the officers’ perception and knowledge immediately prior to effecting the entry, is the most appropriate approach. See, e.g., State v. Sanchez (officers did not give notice of their purpose and entered before they were denied entrance; in upholding the search, the court considered: the informant’s statement that the defendant would flush the heroin down the toilet, the officers’ knowledge of drug suspects’ behavior, and the officers’ observation that upon knocking they heard people moving and yelling voices as if someone was calling to another for the purpose of getting attention); Ker v. California (officers entered defendant’s bedroom unannounced and arrested him for possession of marijuana; the court held that the officers’ belief that defendant was in possession of narcotics, which could be quickly and easily destroyed, together with the defendant’s furtive elusive conduct shortly before the arrest, was grounds for the belief that the defendant may have been expecting the police).
¶11The majority has noted that “[w]hen questioned as to the basis for the no-knock entry, Officer Lara testified that it was based upon his experience [fourteen years of prior narcotic investigations] and the information received from the informants [that the suspects would attempt to destroy drug evidence if they knew of imminent police search].” I am not convinced, however, that a belief co-defendant would destroy the drugs upon observation of the officers is sufficient to invalidate the knock and announce requirements under the facts of this case.
¶12Although our courts have previously upheld unannounced police entries, our decisions have been limited to situations in which, at the time of entry, the officers in good faith believed that they or someone in the house were in danger of bodily harm or that the suspect was attempting to flee or destroy evidence. See State v. Sanchez; State v. Baca. To extend the exigent circumstances at the time of entry exception to the present situation would, in effect, obviate the notice requirements for a significant number of drug cases. Although the affidavit indicated that co-defendant would destroy the drugs upon observation of the officers and that the drugs were easily disposable, I cannot agree that this assertion is any way unique to this particular case. Common sense dictates that other drug suspects would do the same. See State v. Bates, 120 Ariz. 561, 587 P.2d 747 (1978); People v. Gastelo, 67 Cal.2d 586, 63 Cal.Rptr. 10, 432 P.2d 706 (1967) (neither this court nor the United States Supreme Court has held that unannounced forcible entries may be authorized by a blanket rule based on the type of crime or evidence involved). Nor am I convinced that Officer Lara’s fourteen year career experience justified any belief that exigent circumstances existed. Cf. State v. Johnson, 372 So.2d 536 (Fla.Dist.Ct.App.1979) (where on prior experience at the particular premises involved, defendant had flushed drugs down the toilet, an announced entry upheld). Despite what may be a general belief by law enforcement officers that suspects will attempt to destroy drugs if aware of an imminent search, the notice requirements have remained intact. State v. Anaya, 89 N.M. 302, 551 P.2d 992 (Ct.App.1976) (officers made unannounced intrusion into the crawl space underneath trailer and severed the sewer pipe; justified by exigent circumstances, however, because particular suspect had, on a previous occasion, attempted to dispose of drugs by flushing down the toilet); State v. Baca.
¶13In summary, I would hold that exigent circumstances did not exist to allow officers to by-pass the knock and announce rule. Thus, I cannot agree that the children’s yells, together with Officer Lara’s fourteen years experience and the information obtained from the informants, constituted exigent circumstances. I would therefore reverse defendant’s conviction and remand for entry of an order suppressing the evidence obtained as a result of the no-knock warrant.