People v. Parker

• Decision Date: 24 October 1983
• Docket Number: Docket No. 66028,No. 21,21
• Citation: 417 Mich. 556,339 N.W.2d 455
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory Deval PARKER, Defendant-Appellant. Calendar
• Court: Michigan Supreme Court

Page 455

339 N.W.2d 455

417 Mich. 556

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory Deval PARKER, Defendant-Appellant.

Docket No. 66028.

Calendar No. 21.

Supreme Court of Michigan.

Argued March 10, 1983.

Decided Oct. 24, 1983.

William L. Cahalan, Pros. Atty., County of Wayne, Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., A. George Best, II, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Mardi Crawford, Asst. Defender, Detroit, for defendant-appellant.

KAVANAGH, Justice (for reversal).

This is an appeal from, 100 Mich.App. 406, 299 N.W.2d 56, an affirmance of defendant's conviction of armed robbery and first-degree criminal sexual conduct.

We reverse and remand for a new trial.

Complainant testified that someone sprayed a substance into her face as she was getting out of her car in a Detroit parking lot. Her assailant told her that he would stab her with a knife if she did not keep quiet. A struggle ensued in the car, and the assailant took $12 from her wallet. He then directed her to drive from the scene, and they stopped at a deserted location. After a further struggle, during which she was able to scratch her assailant's face, the assailant engaged in forcible sexual intercourse with complainant and fled. Shortly thereafter complainant was able to summon police and describe her assailant to them. The police located a wallet in her car which contained several pieces of identification belonging to the defendant.

The crime occurred during the late evening of February 22, 1978. On the basis of information in the wallet, police located defendant about 2:45 a.m. on February 23. He matched the description of the assailant given by complainant, and he had a laceration under his right eye. He was placed under arrest, and $12 found in the right breast pocket of his jacket and a nailfile in his right rear pants pocket were seized.

The defendant testified that he had met complainant when her car had become stuck in the snow. He assisted in extricating the car, and a lengthy conversation ensued in which complainant told him that she was having marital difficulties and was "tired of old men". She agreed to drive him to a bar, but on the way they stopped at a deserted location and engaged in consensual sexual intercourse. When he told her that she "stunk", a fight ensued, and he left her.

On appeal, the defendant asserts four errors:

I. Arrest without a warrant and attendant search and seizure.

A pretrial hearing was held on the legality of the defendant's arrest (with the resulting seizure of articles to be suppressed, if the defendant were successful). The police had no arrest or search warrants. After checking one address for the defendant that was incorrect, the police located him at 271 Watson at about 2:45 a.m. The owner of the building opened the defendant's apartment. The police saw someone sleeping in the bed in the one-room apartment, and the owner identified the person as the defendant. The police awakened the defendant at gunpoint and determined that he had no weapon. Since he generally fit the description of complainant's assailant, the police arrested him. A fingernail file, $12 in cash, and a black coat were taken and later admitted at trial. Statements made by the defendant to the police after his arrest were used to impeach him at trial.

The parties agree that the arrest of defendant without a warrant in his abode was illegal unless the circumstances surrounding it were exigent. Payton v. New York, 445 U.S. 573, 589, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), citing United States v. Reed, 572 F.2d 412, 423 (CA 2, 1978). The essence of the exigency which would excuse the failure to obtain a warrant is the existence of circumstances known to the police which prevent them from taking the time to obtain a warrant because to do so would thwart the arrest. Commonwealth v. Huffman, 385 Mass. 122, 125, 430 N.E.2d 1190, 1192 (1982); Latzer, Police Entries to Arrest--Payton v. New York, 17 Crim.L.B. 156, 163 (1981).

The prosecutor contends that there were exigent circumstances present at the time the officers effectuated the arrest of defendant after having entered his room without a warrant. In support of this contention, the prosecutor recites the following facts: defendant was believed to be armed with a dangerous weapon, defendant was likely to escape, and a violent crime had been committed. However, we conclude that the facts do not support a finding of such exigent circumstances as would obviate the need for an arrest warrant.

In Niro v. United States, 388 F.2d 535, 540 (CA 1, 1968), the first circuit held that although failure to obtain a readily available warrant is not necessarily fatal to a search or seizure made concurrent with a fully anticipated arrest, it is fatal where there are no countervailing factors. The Niro court stated:

"Proceeding without a warrant is not to be justified, as the government suggests here, by the fact that by the time the officers act, dispatch is necessary to avoid flight or injury to person or property. Haste does not become necessary in the present sense if the need for it has been brought about by deliberate and unreasonable delay. This would allow the exception to swallow the principle."

In United States v. Houle, 603 F.2d 1297 (CA 8, 1979), the police received a complaint that the defendant had made threats after he had been drinking to shoot people. Upon their arrival at the scene, at 1:50 a.m., the officers heard two shots from the defendant's house. The police dispatcher received a phone call from the defendant threatening to shoot any officer who came into his yard and demanding that the officers leave the area or return in the morning. The police delayed acting until 6:40 a.m., and then went to the defendant's house to arrest him. When they arrived they saw through a broken window that the defendant was sleeping on a bed. One of the officers saw a rifle and reached in through the window and seized it, whereupon the other officers kicked down the door and arrested the defendant. The police had made no attempt during the intervening four hours to obtain an arrest warrant.

The Houle Court, in an opinion antecedent to Payton, held that the Fourth Amendment did not sanction entries into a home without a warrant for the purpose of an arrest absent exigent circumstances. In rejecting the prosecution's claim that exigent circumstances existed, the Court stated:

"This is not a case involving hot pursuit. The officers' deliberate four hour delay from 1:50 a.m. to 6:30 a.m., indicates that the officers had no reason to believe, and did not believe, that the defendant would attempt to escape or destroy the evidence in his possession. It is undisputed that the officers made no attempt to obtain a search or arrest warrant during that period of delay. Any exigency that arose by virtue of the presence of the rifle near the bed could have been anticipated by the officers and does not excuse their earlier failure to obtain a warrant." 603 F.2d 1300.

In the case at bar, there was over a five-hour delay between the time the police were given a physical description of the complainant's assailant and when they arrested defendant without a warrant. The prosecution has offered no explanation whatsoever as to why a warrant was not sought during this interval. Inasmuch as the prosecutor has not proffered any countervailing circumstances which justify the failure to secure a warrant, we hold that the police did not act reasonably in entering defendant's room without a warrant, arresting him, and seizing evidence. Therefore, defendant's motion to suppress the evidence seized as a result of the entry without a warrant should have been granted.

II. Sufficiency of the evidence that defendant was armed with a dangerous weapon.

Before its codification in 1931, the armed robbery statute provided:

"Sec. 15. If any person shall assault another, and shall feloniously rob, steal and take from his person any money or other property, or shall feloniously assault another with intent to rob or steal any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, with intent, if resisted, to kill or maim the person robbed or assaulted, or if, being so armed, he shall wound or strike the person robbed or assaulted, he shall be punished by imprisonment in the state prison for life or any number of years." 1927 P.A. 374; 1929 C.L. 16722.

Act 328 of the Public Acts of 1931 codified Michigan's criminal law. Robbery armed was treated in Sec. 529 of the act and provided:

"Sec. 529. Robbery armed--Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the persons so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years."

The 1931 amendment thus eliminated the clause beginning with the words "with intent". We think it clear from that history that when enacted the words "dangerous weapon", etc., contemplated that the defendant would actually have a dangerous weapon; this is implicit in the phrase "with intent, if resisted, to kill or maim". The elimination of the "with intent" requirement reduced the prosecutor's burden of proof, but does not provide a basis for construing the section as no longer requiring that the defendant actually have a dangerous weapon or an article used or fashioned in a manner to lead the persons so assaulted to reasonably...