People v. Love

156 Mich. App. 568 (1986) 402 N.W.2d 9

PEOPLE
v.
LOVE

Docket No. 79959.

Michigan Court of Appeals.

Decided September 30, 1986.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert E. Weiss, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

Bennett S. Engelman, for defendant on appeal.

Before: WAHLS, P.J., and MacKENZIE and R.L. TAHVONEN,^[*] JJ.

PER CURIAM.

Willie James Love was convicted by a jury of breaking and entering an occupied dwelling with intent to commit a larceny therein, MCL 750.110; MSA 28.305, and first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). He was sentenced to a prison term of from ten to fifteen years on the breaking and entering conviction and to a concurrent term of life in prison on the CSC conviction. He appeals as of right and we reverse and remand for a new trial.

The charges against defendant were spawned by an incident which occurred on May 14, 1983, during which the sixty-five-year-old victim was physically assaulted, raped and robbed in her Flint home.

Defendant claims on appeal that the trial court erred in denying his pretrial motion to suppress evidence. Prior to trial, defendant moved to suppress evidence taken from his apartment during a search without a warrant by police. The parties did not dispute the facts surrounding the police's initial entry into the apartment. The only issue was whether or not the entry was justified by exigent circumstances. The trial court denied the motion, reasoning that

in determining whether or not there were exigent circumstances, I'll look at the situation just prior to the incident. Based on the information contained in the affidavit, if I had been outside the entrance at 448 Page Street before the entry, I would have signed the search warrant. Therefore, I think the circumstances amounted to an exigent situation, and, accordingly, the motion to suppress the evidence is denied.

We review a trial court's denial of a motion to suppress evidence using the "clearly erroneous" standard. People v Jerry Smith, 122 Mich. App. 106, 111; 332 NW2d 428 (1982); People v US Currency, 148 Mich. App. 326, 329; 383 NW2d 633 (1986). Because we have a definite and firm conviction that the evidence should have been suppressed, we reverse and remand for a new trial excluding the evidence found in defendant's home.

Absent exigent circumstances, a nonconsensual entry into a person's home without a warrant to make a felony arrest is prohibited. Payton v New York, 445 U.S. 573; 100 S. Ct. 1371; 63 L. Ed. 2d 639 (1980); People v Van Auker, 111 Mich. App. 478, 481; 314 NW2d 657 (1981), lv den 413 Mich. 879 (1982). Exigent circumstances are present where immediate action is necessary to: (1) protect the police officers or other persons; (2) prevent the loss or destruction of evidence; or (3) prevent the escape of the suspect. Van Auker, supra, p 482; People v Anthony, 120 Mich. App. 207; 327 NW2d 441 (1982), lv den 417 Mich. 897 (1983).

None of these three situations was present in the case at bar. The police, after investigating the victim's home, received a tip from a neighbor that defendant may have been involved in the crime and that he was thought to be in his apartment. There was no indication that he was armed or that he was a danger to police officers or other persons. Nor was loss or destruction of evidence a concern. Defendant allegedly stole jewelry and household items that are not easily disposed of, unlike drugs which can be flushed down toilets.

Moreover, we do not believe this was a case of "hot pursuit," a form of exigent circumstances. People v Raybon, 125 Mich. App. 295, 301; 336 NW2d 782 (1983); Warden v Hayden, 387 U.S. 294; 87 S. Ct. 1642; 18 L. Ed. 2d 782 (1967). A search without a warrant may be justified where police officers' delay in the course of an investigation would gravely endanger their lives or the lives of others. Where speed is essential to ensure that police have control of weapons which could be used against them or to effect an escape, a search without a warrant is permissible. Warden v Hayden, supra, 387 U.S. 298-299. Here, at least four or five officers were at the scene. The apartment could have easily been surrounded and secured while a warrant was obtained. Instead, police broke down defendant's door over one hour after the crime was committed and began a search. They uncovered the stolen property, secured the premises and then sought a warrant. The trial court's theory that police could have gotten a warrant before breaking the door down does not excuse their failure to do so. Under such reasoning there would never be a need to seek a warrant where probable cause exists — only where it does not.

The evidence seized during the search must therefore be suppressed. The error was not harmless, given that the remaining evidence of defendant's guilt was not overwhelming. Van Auker, supra, p 483; People v Robinson, 386 Mich. 551; 194 NW2d 709 (1972).

Reversed and remanded.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.