People v. Ortiz

• Decision Date: 15 July 1997
• Docket Number: Docket No. 192779
• Citation: 569 N.W.2d 653,224 Mich.App. 468
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Juan Emilio ORTIZ, Defendant-Appellee. (After Second Remand)
• Court: Court of Appeal of Michigan — District of US

Page 653

569 N.W.2d 653

224 Mich.App. 468

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Juan Emilio ORTIZ, Defendant-Appellee. (After Second Remand)

Docket No. 192779.

Court of Appeals of Michigan.

Submitted April 10, 1997, at Detroit.

Decided July 15, 1997, at 9:00 a.m.

Released for Publication Oct. 8, 1997.

[224 Mich.App. 470] Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Douglas P. Dwyer, Assistant Prosecuting Attorney, for People.

Craig A. Daly, P.C. by Craig A. Daly, Detroit, for Defendant-Appellee.

Before SAWYER, P.J., and MURPHY and MARK J. CAVANAGH, JJ.

AFTER SECOND REMAND

MARK J. CAVANAGH, Judge.

The prosecutor appeals as of right the trial court order on second remand setting aside defendant's conviction of possession of more than twenty-five grams but less than fifty grams of cocaine, M.C.L. § 333.7403(2)(a)(iv); M.S.A. § 14.15(7403)(2)(a)(iv), on the basis that a search warrant had been executed improperly. We affirm.

On June 23, 1992, the police attempted to execute a search warrant at defendant's home. After the police broke down the door leading into the enclosed porch, defendant fired two shots from inside the house. During the subsequent search of defendant's house, the police found cocaine. Defendant was arrested and charged with possession of more than twenty-five grams but less than fifty grams of cocaine, assault with intent to commit murder, M.C.L. § 750.83; M.S.A. § 28.278, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2).

At a hearing on September 4, 1992, defendant moved to suppress the evidence seized pursuant to the search warrant, or, in the alternative, requested that a hearing be held to determine whether the search warrant had been executed properly under the knock-and-announce statute, M.C.L. § 780.656; M.S.A. § 28.1259(6). In an order dated that same day, Judge Wendy Baxter denied the motion.

Subsequently, Judge George W. Crockett, III, was assigned to conduct defendant's bench trial. Judge Crockett issued an order staying proceedings pending an interlocutory appeal of the denial of defendant's pretrial motions. On January 19, 1993, this Court issued an unpublished order remanding the case for a Walker ¹ hearing but denying defendant's application with regard to all other issues because the panel was not persuaded of the need for immediate appellate review. (Docket No. 156860). On March 22, 1993, this Court, in an unpublished order, denied defendant's motion for rehearing. (Docket No. 156860). On May 28, 1993, the Supreme Court denied defendant's application for leave to appeal. 442 Mich. 922, 503 N.W.2d 454 (1993). On July 30, 1993, the Supreme Court denied defendant's motion for reconsideration. Id.

Following a bench trial on remand, defendant was convicted of possession of more than twenty-five grams but less than fifty grams of cocaine. The trial court sentenced defendant to lifetime probation. Defendant appealed the conviction as of right. This Court, White, P.J., and Bandstra and W.P. Cynar, JJ., remanded for an evidentiary hearing regarding whether the search warrant had been executed properly. People v. Ortiz (After Remand ), unpublished opinion per curiam of the Court of Appeals, issued June 6, 1995 (Docket No. 174128). The prosecutor's motion for rehearing was denied in an unpublished order entered August 3, 1995. (Docket No. 174128).

At the evidentiary hearing on second remand, the parties stipulated the admission of the trial testimony of five witnesses: Lois Bettin, Anjanette Myers, Carlos Grace, Paul C. Smith, and Sherrill Kaatz. In addition, defendant and Officer Daniel Dupuis testified at the hearing.

Bettin testified that she lives next door to defendant. On June 23, 1992, Bettin was sitting in her living room, which is adjacent to defendant's driveway. Bettin heard a noise that sounded like the slamming of a car door. Before hearing this noise, Bettin did not hear the police identify themselves or state that they had a search warrant. Upon looking out her window, Bettin observed several policemen crouching down around the side of defendant's house. Bettin did not hear any gunshots.

Myers stated that she lives across the street from defendant. On June 23, 1992, Myers heard a "loud boom noise." The noise was not preceded by anyone saying "police" or "search warrant." After hearing the noise, Myers went to the window and saw police at the side of defendant's house. Myers denied hearing any gunshots before the noise.

Grace testified that he lives three houses down from defendant. On June 23, 1992, he was standing outside, six houses away from defendant's house, when he saw a van pull up in front of defendant's house. Grace then saw two officers run to defendant's door "real fast." Grace heard a loud noise and saw the police hit defendant's door with a large object. Grace did not hear the police announce their presence before he heard the noise. Subsequently, Grace heard a second noise and saw the police leave defendant's porch and take cover.

Smith testified that he lived two houses down from defendant. At the time in question, Smith was standing in his doorway looking for his children. Smith observed a blue van stop in front of defendant's house. Three or four men jumped out, ran to defendant's door, and struck it with an object. Smith never heard the men identify themselves as police officers or state that they had a search warrant.

Kaatz testified that she was inside defendant's house on June 23, 1992. While sitting at the dining room table, Kaatz heard a loud bang coming from defendant's porch. Before hearing the bang, Kaatz did not hear anyone say "police" or "search warrant." Following the bang, Kaatz heard gunshots coming from inside the house. After the shots were fired, Kaatz heard the police announce that they had a search warrant.

Defendant testified that on the evening in question, he was talking with Kaatz in his house. The radio and television were not on, and it was quiet in the house. Suddenly, defendant heard a loud noise that sounded like a bomb or an explosion. Defendant stated that it had been his experience that when he was in the dining room, he could hear when people knocked on his porch door, and that when a person on his front porch yelled, he could hear it. Defendant did not hear anyone knock or call out before the noise occurred on the evening in question.

Defendant stated that his porch is enclosed by wood, steel beams, and smoked glass. The door from the porch to the driveway is a solid wood door. The porch door is always kept locked.

Officer Dupuis testified that he works in the narcotics division of the Detroit Police Department. On June 23, 1992, he approached the door to an enclosed porch at defendant's house with several other officers. Dupuis knocked on the door and stated that he was a police officer and had a search warrant. After waiting ten to fifteen seconds, Dupuis forced open the door with a sixty-pound battering ram. Before he reached the inner door of the porch, gunshots were fired, causing the officers to retreat. On cross-examination, Dupuis admitted that he had heard no sounds from inside the house that led him to believe that evidence was being destroyed or someone was trying to escape.

After all the testimony had been heard, the trial court stated:

I think one of the rules of statutory construction is that the language of the legislature in creating a statute is to be given its ordinary meaning, ordinary understanding. The legislature did use the term announce. And Webster's third, Webster's New World Dictionary of the American Language, Second College Edition, defines announce as to declare publicly, give notice of formally, proclaim, to say, or tell, to make known the arrival of, to make known through the senses, among other things.

The statute does not say to attempt to make known. It says to announce. And if five persons within earshot and in varying positions could not hear an announcement made, as testified to, it wasn't an announcement.

* * * * * *

No, I think if their presence was not made known to the Defendant until his door had been forced, the statute has not been complied with.

The trial court then granted defendant's motion to suppress the evidence and set aside defendant's conviction. Subsequently, the trial court dismissed the case. The prosecutor appeals.

I

The prosecutor argues that the trial court erred in interpreting M.C.L. § 780.656; M.S.A. § 28.1259(6), the statute governing the breaking of doors and windows in the execution of a search warrant. The statute provides:

The officer to whom a warrant is directed, or any person assisting him, may break any outer or inner door or window of a house or building, or anything therein, in order to execute the warrant, if, after notice of his authority and purpose, he is refused admittance, or when necessary to liberate himself or any person assisting him in execution of the warrant. [M.C.L. § 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. Zuccarini, 172 Mich.App. 11, 17, 431 N.W.2d 446 (1988).

On appeal, we review de novo questions of law regarding statutory interpretation. People v. Bobek, 217 Mich.App. 524, 528, 553 N.W.2d 18 (1996). Our goal in interpreting statutes is to ascertain the intent of the Legislature. People v. Burton, 219 Mich.App. 278, 286, 556 N.W.2d 201 (1996). The first criterion in determining the Legislature's intent is the specific language of the statute. If the plain and ordinary meaning of the language is clear, judicial construction is normally neither...