People v. Ortiz ( 1997 )

Murphy, J.

(dissenting). I respectfully dissent. In my opinion, the trial court clearly erred in ruling that the officers violated the knock-and-announce statute and suppressing the evidence seized.

The prosecution relies in part on People v Harvey, 38 Mich App 39; 195 NW2d 773 (1972). In Harvey, this Court held that whether officers complied with the knock-and-announce statute before breaking an outer, locked, screen door on a screened-in porch, was “irrelevant because the provisions of the statute were met prior to entry into the living quarters.” Id. at 43. In this case, the prosecution argues that compliance with the knock-and-announce statute was irrelevant because the officers only broke the outer door of a porch before hearing gunshots from inside the home and aborting their entry; the officers did not break the door to defendant’s “living quarters.” While I consider this to be a strong argument, I do not think we need to come to a conclusion and decide this issue on the basis of Harvey because, even assuming that the knock-and-announce statute was violated and the officers’ entry onto the porch was illegal, I am of the opinion that any resultant taint from the illegality was sufficiently purged before the actual seizure of evidence.

The majority dismisses this claim, in part because it was not argued below. However, because this issue is decisive of the outcome, I feel review is proper, especially in light of the fact that defendant has already been afforded a trial and the attendant constitutional rights and protections. Also, the majority states that there was no evidence presented at the hearing on remand to support the prosecutor’s claim on appeal. However, the record at the hearing consisted not only of live testimony at the hearing, but the parties stipulated the admission of the trial transcripts. When the hearing testimony is supplemented with the trial testimony, there is ample evidence with which to evaluate the prosecutor’s claim on appeal.

As stated by our Supreme Court:

The exclusionary rule forbids the use of direct and indirect evidence acquired from governmental misconduct, such as evidence from an illegal police search.

Three exceptions to the exclusionary rale havé emerged: the independent source exception, the attenuation exception, and the inevitable discovery exception. [People v LoCicero, 453 Mich 496, 508; 556 NW2d 498 (1996) (citations omitted).]

To determine whether exclusion is proper, we must “evaluate the circumstances of this case in the light of the policy served by the exclusionary rule . . . .” Brown v Illinois, 422 US 590, 604; 95 S Ct 2254; 45 L Ed 2d 416 (1975).

“The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it” But “[d]espite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons. [Id. at 599-600 (citations omitted).]

When a defendant claims that evidence should be suppressed as a result of unlawful government misconduct, the appropriate inquiry is “whether that evidence was procured by an exploitation of the illegality or, instead, by means sufficiently distinguishable to be purged of the primary taint.” People v Lambert, 174 Mich App 610, 617; 436 NW2d 699 (1989);¹ see also Wong Sun v United States, 371 US 471, 488; 83 S Ct 407; 9 L Ed 2d 441 (1963). Factors that assist in determining whether an exploitation of an illegality has occurred include: the temporal proximity between the illegality and the seizure, the presence of intervening circumstances, and the purpose and flagrancy of the illegality. See Brown, supra at 603-604 (utilizing the Wong Sun test to determine if a confession need be suppressed as a result of an illegal arrest).

In the case at bar, testimony revealed that over an hour passed between the time of the initial entry onto the porch and the time the officers finally entered defendant’s home to execute the warrant. Immediately after entry onto the porch was made, shots were fired from inside defendant’s home, the officers retreated from, and assumed positions outside, the porch. For the next hour, the officers waited, occasionally using a bullhorn to announce their continued presence and ask defendant to surrender. Eventually, defendant and another occupant of the home surrendered. It was at this time the officers finally entered the home, initially to secure the premises, and executed the search.²

With regard to the purpose and flagrancy of the illegality, it was a question of fact regarding whether there actually was an illegality in the first place in light of the fact that some testimony did indicate that the officers complied with the knock-and-announce statute and because the door initially entered led to a porch and not to living quarters. However, even accepting the testimony of the witnesses who stated that the officers did not comply with the statute, I do not consider the purpose and flagrancy of the violation to rise to such a level that it irreparably tainted the seizure of the evidence in light of the other countervailing factors that favor purging the taint of the illegal entry. The officers were executing a drug warrant, and physical violence and evidence destruction frequently occur during the execution of such warrants. While there was no testimony or evidence on the record in this case that indicates that the officers had a “reasonable suspicion” of such risk, which would have justified a “no-knock” entry, Richards v Wisconsin, 520 US_; 117 S Ct 1416; 137 L Ed 2d 615 (1997), such risks were nonetheless legitimate, and with the benefit of hindsight, proper concerns. In addition, the officers knew they were initially entering a porch, as opposed to living quarters, a fact, which in my opinion, mitigates the flagrancy of, if not totally precludes, any violation of the knock-and-announce statute.

In my opinion, it would certainly be a stretch to say that the officers exploited their initial entry to obtain the evidence seized. If anything, they were placed at a disadvantage by their initial entry. The standoff gave defendant an opportunity to destroy evidence; an opportunity that defendant utilized. The time and intervening circumstances between the initial entry and the seizure of the evidence clearly favor a purging of the taint of any illegality, and the purpose and flagrancy of the illegality was not so great as to mandate a contrary holding. Furthermore, I do not think that such a holding would provide an incentive to disregard the knock-and-announce statute. I highly doubt that officers executing a search warrant would rather choose the route taken in the case at bar than comply with the knock-and-announce statute.

I would reverse and remand to reinstate defendant’s conviction.

1 The majority states that the delay and intervening circumstances between the initial entry and the seizure of evidence were a “direct result of the violation of the knock-and-announce statute.” Ante at 482. However, such a “but for” test was specifically rejected in favor of a determination regarding whether there has been an exploitation of the primary illegality. See Lambert, supra at 617.

2 While the parties’ arguments focus on the initial entry of the outer, porch door, and defendant does not argue that the officers needed to knock and announce immediately before their second entry, which occurred after the standoff ended and defendant surrendered, I will briefly address the issue. In my opinion, knocking and announcing immediately before the second entry was not necessary. By the time of that entry, knocking and announcing would have been a useless formality because the occupants of the home had surrendered. In addition, even if the officers did not know that the occupants who surrendered were the only occupants (which they were), in my opinion, their surrender, along with the intervening time and circumstances, as well as the knowledge of the officers of potential danger upon entry, and the knowledge of any remaining occupants of the officers’ presence and intent to enter, created a circumstance that excused compliance. In other words, on the facts of this case, the officers’ entrance without knocking and announcing was reasonable, and because the officers had a warrant, the seizure of the evidence was proper. Therefore, the sole issue we must address is whether any illegality of the initial entry was sufficient to taint the second entry and the seizure of the evidence.