¶1(specially concurring).
¶2While I concur in -the foregoing opinion affirming Attaway’s conviction, I write specially to express my misgivings regarding the majority’s elevation of the knock and announce rule to constitutional status. I also write separately to emphasize that this Court, when faced with the factual reality of the violence associated with the drug trade, should strongly consider the factors discussed in Williams when determining the reasonableness of no-knock warrants.
¶3The majority, in my opinion, goes further than it should in elevating the knock and announce requirement to constitutional status. The Fourth Amendment prohibits only unreasonable searches. Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. Id. at 559, 99 S.Ct. at 1884. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Id. In this case, Defendant argues that his Fourth Amendment right was violated because the police executed a search of his home without first knocking, announcing their presence, and allowing adequate time for Defendant to answer the door. Our analysis must be to 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.
¶4Similarly, under the New Mexico Constitution, Article II, Section 10, the test for determining whether there has been a constitutional violation is whether a search and seizure was unreasonable. Although the opinion, in footnote 6, attempts to explain its rationale for elevating knock and announce requirements to constitutional status, I feel it fails to be convincing. The sole basis for elevating the knock and announce requirement to constitutional status, as far as I can tell, is that in State v. Baca this Court held that “an officer, prior to forcible entry, must give notice of authority and purpose, and be denied admittance.” 87 N.M. 5, 13, 528 P.2d 649, 657 (Ct.App.), cert. denied, 87 N.M. 5, 528 P.2d 649 (1974). The opinion fails to point out, however, that preceding this statement the Baca court stated that “New Mexico has neither statute nor decision stating what is ‘unreasonable’ in circumstances such as these.” Id. The Baca court also qualified its view that an officer must give notice, authority and purpose and then be denied admittance by stating that this is a “general standard,” id, and that “[t]he reasonableness of each search and seizure is to be decided upon its own facts and circumstances in light of these general standards.” Id. at 14, 528 P.2d at 658. Thus, the Baca court actually held that violations of New Mexico Constitution, Article II, Section 10 are to be determined based on a reasonableness standard, and did not, as the opinion attempts to explain, elevate the knock and announce requirement to constitutional status.
¶5I also find that the opinion underemphasizes the factual realities of today’s drug trade. I believe that this court should strongly consider factors as outlined in State v. Williams, 168 Wis.2d 970, 485 N.W.2d 42 (1992), when determining the reasonableness of law enforcement actions in executing a search warrant. The Wisconsin Supreme Court found that
[t]he violence associated with drug trafficking today places' law enforcement officers in extreme danger. Much of the fuel for such violence stems from street gangs and the profitability associated with dealing illegal drugs____ Bitter experience has illustrated that guns are tools of the illegal drug trade. Therefore, we conclude ... that a person in possession of both firearms and large quantities of illegal drugs poses a significant threat to the safety of law enforcement officers attempting to arrest the suspected drug dealer and seize the illicit drugs. Such volatile circumstances are sufficient to constitute “exigent circumstances” justifying an unannounced entry by the officers.
¶6Williams, 485 N.W.2d at 47-48. Given the realities of the drug trade, it may be requiring too much to insist that officers executing a warrant for large quantities of illegal drugs and large quantities of firearms from suspected drug dealers should specifically know of the suspects’ violent propensity before executing a no-knock warrant. Our determination should be whether the officers’ conduct was objectively reasonable. Needless exposure of police to the violence and death commonly associated with the drug trade today and protection of citizens’ rights to be safe and secure in their homes can be melded. This acknowledgement of the realities of the drug trade does not violate the Fourth Amendment’s nor New Mexico’s constitutional requirement that searches and seizures be reasonable.
¶7I concur in that portion of the opinion that affirms Attaway’s conviction.