People v. Polidori

• Decision Date: 19 August 1991
• Docket Number: Docket No. 133018
• Citation: 476 N.W.2d 482,190 Mich.App. 673
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dwayne Edward POLIDORI, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 482

476 N.W.2d 482

190 Mich.App. 673

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dwayne Edward POLIDORI, Defendant-Appellant.

Docket No. 133018.

Court of Appeals of Michigan.

Submitted May 14, 1991, at Detroit.

Decided Aug. 19, 1991, at 9:25 a.m.

Released for Publication Nov. 18, 1991.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

Daniel J. Blank, Birmingham and Jerome M. Goldman, Melvindale, for defendant-appellant.

Before MARK J. CAVANAGH, P.J., and NEFF and BEASLEY, ^* JJ.

MARK J. CAVANAGH, Presiding Judge.

Defendant is awaiting trial on a charge of possessing with the intent to deliver a controlled substance in an amount of 50 grams or more, but less than 225 grams, M.C.L. Sec. 333.7401(2)(a)(iii); M.S.A. Sec. 14.15(7401)(2)(a)(iii), pending our disposition of the present appeal. Defendant claims that the trial court erred in deciding that suppression of the evidence was not the appropriate remedy for a violation of Michigan's knock-and-announce statute, M.C.L. Sec. 780.656; M.S.A. Sec. 28.1259(6). We agree with defendant and reverse the decision made below.

According to the evidence submitted at the suppression hearing, police officers obtained a search warrant for defendant's home after successfully completing a controlled "buy." On November 9, 1989, at approximately 7:00 p.m., four or five police officers in plain clothes armed with rifles arrived in an unmarked van at defendant's home. Within six seconds of knocking and announcing their presence, the police officers forced their way in with a battering ram.

Defendant moved for suppression of the evidence seized in his home, arguing that the police officers did not allow a reasonable time for the occupants to answer the door. Relying on People v. Harvey, 38 Mich.App. 39, 195 N.W.2d 773 (1972), and People v. Doane, 33 Mich.App. 579, 190 N.W.2d 259 (1971), rev'd 387 Mich. 608, 198 N.W.2d 292 (1972), defendant insisted that, to comply with the statute, the police officers had to knock, announce their presence and purpose, and wait long enough for the occupants to reach the door from the room farthest away.

In deciding defendant's motion, the trial court agreed that the knock-and-announce statute had been violated by the conduct of the police officers because, absent any exigent circumstances, a forced entry after a three- to six-second wait did not substantially comply with the statute. However, the trial court also ruled that "the search and seizure was not constitutionally invalid but rather was merely statutorily illegal." Consequently, the trial court refused to apply the exclusionary rule.

The trial court further relied on the fact that the statute provided its own remedy in case an officer wilfully exceeded his authority. See M.C.L. Sec. 780.657; M.S.A. Sec. 28.1259(7). The court concluded that the deterrent aim of the exclusionary rule would not be properly served by suppressing the evidence because there was a statutory remedy available if the officers wilfully violated the statute. It is with the trial court's ruling with respect to the application of the exclusionary rule that we disagree.

U.S. Const.Am. IV provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The constitution does not forbid all searches and seizures, only unreasonable ones. Harris v. United States, 331 U.S. 145, 150, 67 S.Ct. 1098, 1101, 91 L.Ed. 1399 (1947). Consequently, the lawfulness of a search or seizure will depend upon its reasonableness. Ker v. California, 374 U.S. 23, 32, 83 S.Ct. 1623, 1629, 10 L.Ed.2d 726 (1963); People v. Orlando, 305 Mich. 686, 690, 9 N.W.2d 893 (1943). Because there is no formula for the determination of reasonableness, each case must be decided on its own facts. Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374 (1931).

M.C.L. Sec. 780.656; M.S.A. Sec. 28.1259(6) 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.

Although there is no Michigan case that directly deals with the sanction that should follow a violation of the knock-and-announce statute, we agree with a number of other jurisdictions that the requirement that officers identify themselves and state their authority and purpose before entering a private residence has its roots in the Fourth Amendment. See People v. Gonzalez, 211 Cal.App.3d 1043, 1048, 259 Cal.Rptr. 846 (1989), Tatman v. State, 320 A.2d 750, 751 (Del., 1974), Commonwealth v. Chambers, 385 Pa.Super. 605, 610, 561 A.2d 1257 (1989), lv. gtd. 523 Pa. 647, 567 A.2d 650 (1989), and State v. Carufel, 112 R.I. 664, 668, 314 A.2d 144 (1974).

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. See Ker, supra 374 U.S. at 47, 83 S.Ct. at 1636. Because the primary purpose of the constitutional guarantee is to prevent unreasonable invasions, if a police officer has reasonable cause to enter a dwelling to make an...