People v. Asher

Decision Date22 February 1994
Docket NumberDocket No. 158306
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kathleen ASHER, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., and Timothy A. Baughman, Chief of Research, Training, and Appeals, for the People.

Daniel J. Blank, Birmingham, for defendant.

Before SAWYER, P.J., and WEAVER and GAGE, * JJ.

SAWYER, Presiding Judge.

The people appeal from an order granting defendant's motion to suppress evidence, which resulted in the dismissal of charge against defendant of possession with intent to deliver marijuana. M.C.L. § 333.7401(2)(c); M.S.A. § 14.15(7401)(2)(c). We affirm.

On August 4, 1992, police officers from the City of Romulus observed various transactions taking place at defendant's residence. Numerous persons were seen entering the home, remaining for a minute or two, and then leaving. The officers also observed a narcotics transaction taking place in a car outside the premises. On the basis of these observations, they obtained a search warrant.

In executing the search warrant, the first officer to the front door knocked, and several officers then announced their presence as police officers. Within five seconds of knocking and announcing, the officers entered the residence. As a result of the search, defendant was arrested and charged with possession with intent to deliver marijuana.

On September 18, 1992, defendant filed a motion to suppress evidence, arguing that the officers executing the search warrant failed to comply with the Michigan knock-and-announce statute. M.C.L. § 780.656; M.S.A. § 28.1259(6). Officer Brandemihl testified at the suppression hearing that he heard nothing from the inside of the residence before gaining entry. He further testified that, in his experience, narcotics traffickers usually possess guns in their homes, but that he did not have any firsthand knowledge concerning whether any guns were in this residence at the time of the search.

After hearing the testimony and listening to arguments from both sides, the trial court granted defendant's motion to suppress, citing People v. Polidori, 190 Mich.App. 673, 476 N.W.2d 482 (1991).

The people first argue that the police officers' entry into the premises less than five seconds after knocking and announcing their presence did not violate the knock-and-announce statute. M.C.L. § 780.656; M.S.A. § 28.1259(6). We disagree.

The people argue that the testimony at the suppression hearing, that the officers witnessed foot traffic at the residence and that weapons are usually present in the home of narcotics traffickers, justified the immediate entry into the home and that, therefore, this case can be distinguished from Polidori. We agree that strict compliance with the knock-and-announce statute may be excused if police officers have a basis to conclude that evidence will be destroyed or lives will be in danger by the delay. However, nothing in this case indicates that there was any evidence that drugs were kept in a manner that would facilitate their immediate destruction or that these particular defendants possessed weapons. Without such evidence, there was no justification for the police to dispense with the requirements of the knock-and-announce statute. People v. Marinez, 160 Ill.App.3d 349, 353, 112 Ill.Dec. 193, 513 N.E.2d 607 (1987), cited with approval in Polidori, supra. We, therefore, are constrained to conclude that the police officers violated Michigan's knock-and-announce statute. 1

Finally, the people argue that the exclusion of the evidence obtained by a valid search warrant for the premises was not the appropriate remedy. We would not conclude that a timing error in the execution of a valid search warrant offends the Fourth Amendment reasonableness requirement. However, in Polidori, this Court held that if the method of entry violates the knock-and-announce statute, the exclusionary rule must apply. Consequently, we are compelled by Administrative Order No. 1990-6 to follow Polidori and conclude that the evidence recovered must be suppressed. Were it not for the administrative order, we would not require the evidence to be suppressed.

Affirmed.

WEAVER, J., concurred.

GAGE, Judge, dissenting.

I agree with the majority's recitation of the facts and with the conclusion that the evidence supported the finding that the execution of the search violated the so-called knock-and-announce statute. M.C.L. § 780.656; M.S.A. § 28.1259(6). I respectfully dissent from the majority opinion because I do not read People v. Polidori, 190 Mich.App. 673, 476 N.W.2d 482 (1991), as requiring suppression for every violation of the knock-and-announce statute. Furthermore, I would not find that suppression is required in this case.

M.C.L. § 780.656; M.S.A. § 28.1259(6) permits an officer to break the door or window of a building to execute a warrant if, after notice of his authority and purpose, he is refused admittance. The statute does not provide for suppression of evidence seized in noncompliance with the statute; rather, violation of the statute is punishable as a misdemeanor.

M.C.L. § 780.657; M.S.A. § 28.1259(7).

The majority finds that, "in Polidori, this Court held that if the method of entry violates the knock-and-announce statute, the exclusionary rule must apply." Ante, at 145; emphasis added. In Polidori, supra at 677, 476 N.W.2d 482, this Court held:

Consequently, when the method of entry violates the knock-and-announce statute, the exclusionary rule may come into play if the Fourth Amendment standard of reasonableness is also offended. [Emphasis added.]

In Polidori this Court further observed that a violation would be excused for reasonable cause or exigent circumstances.

In Polidori, this Court discussed exigent circumstances in light of People v. Gonzalez, 211 Cal.App.3d 1043, 1048, 259 Cal.Rptr. 846 (1989), and People v. Marinez, 160 Ill.App.3d 349, 353, 112 Ill.Dec. 193, 513 N.E.2d 607 (1987). Illinois and California have adopted rules that require suppression of evidence seized in a search where there are knock-and-announce violations, except where the state can show "exigent circumstances." In these states, "exigent circumstances" have been limited to circumstances where the police have specific information that the narcotics would be immediately destroyed or reason to believe that weapons would be used against them. Id. The Polidori panel could have explicitly adopted a similar rule of suppression. It did not. Rather, it cited broader principles of Fourth Amendment reasonableness as the test for whether a knock-and-announce violation requires suppression.

The touchstone of any search and seizure analysis is reasonableness. Florida v. Jimeno, 500 U.S. 248, ----, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991). In ...

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6 cases
  • People v. Vasquez
    • United States
    • Supreme Court of Michigan
    • October 26, 1999
    ...of the knock-and-announce statute."5 Citing People v. Polidori, 190 Mich.App. 673, 476 N.W.2d 482 (1991), and People v. Asher, 203 Mich.App. 621, 513 N.W.2d 144 (1994), the circuit court concluded that this violation should lead to suppression of the evidence obtained in the raid. The prose......
  • People v. Stevens
    • United States
    • Supreme Court of Michigan
    • July 20, 1999
    ...N.W.2d 482 (citations omitted).] In affirming the trial court in the present case, the Court of Appeals relied on People v. Asher, 203 Mich.App. 621, 624, 513 N.W.2d 144 (1994), in holding that "if the method of entry violates the knock-and-announce statute, the exclusionary rule must apply......
  • People v. Ortiz
    • United States
    • Court of Appeal of Michigan (US)
    • July 15, 1997
    ...§ 780.656; M.S.A. § 28.1259(6).] This statute is commonly referred to as the "knock-and-announce" statute. See People v. Asher, 203 Mich.App. 621, 623, 513 N.W.2d 144 (1994), lv den 445 Mich. 927, 521 N.W.2d 7 (1994), cert den 515 U.S. 1102, 115 S.Ct. 2245, 132 L.Ed.2d 254 (1995); People v.......
  • People v. Howard
    • United States
    • Court of Appeal of Michigan (US)
    • December 4, 1998
    ...after knocking, the occupants were seen running toward the back of the house. Id. at 544-546, 499 N.W.2d 404. In People v. Asher, 203 Mich.App. 621, 513 N.W.2d 144 (1994), the police had violated the statute by failing to give the occupants a reasonable time to answer the door. Judges Sawye......
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