People v. Asher, Docket No. 158306

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: SAWYER; WEAVER; GAGE
• Citation: 203 Mich.App. 621,513 N.W.2d 144
• Docket Number: Docket No. 158306
• Decision Date: 22 February 1994
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Kathleen ASHER, Defendant-Appellee.

Page 144

513 N.W.2d 144 203 Mich.App. 621 PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Kathleen ASHER, Defendant-Appellee. Docket No. 158306. Court of Appeals of Michigan. Submitted July 7, 1993, at Detroit.
Decided Feb. 22, 1994, at 9:00 a.m.
Released for Publication April 1, 1994.

[203 Mich.App. 622] 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 [203 Mich.App. 623] 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

Page 145

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[203 Mich.App. 624] 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...