People v. Slater

• Decision Date: 04 August 1986
• Docket Number: Docket No. 85098
• Citation: 390 N.W.2d 260,151 Mich.App. 432
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mary SLATER, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 260

390 N.W.2d 260

151 Mich.App. 432

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mary SLATER, Defendant-Appellee.

Docket No. 85098.

Court of Appeals of Michigan.

Submitted Feb. 11, 1986.

Decided May 5, 1986.

Released for Publication Aug. 4, 1986.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., and Timothy A. Baughman, Deputy Chief, Civil and Appeals, for the People.

Robert Mann, Detroit, for defendant-appellee.

Before MacKENZIE, P.J., and CYNAR and MARTIN, ^* JJ.

CYNAR, Judge.

The people appeal as of right from an order of dismissal entered by the Detroit Recorder's Court on the basis of suppression of the evidence.

Following a November 26, 1984, preliminary examination, defendant was bound over for trial on the charge of possession with intent to deliver less than 50 grams of cocaine, pursuant to M.C.L. Sec. 333.7401(2)(a) ; M.S.A. Sec. 14.15(7401)(2)(a). On January 7, 1985, defendant filed a motion for an evidentiary hearing with the Recorder's Court. Defendant argued that the manner in which the police executed a search warrant violated Michigan's "knock-and-announce" statute, M.C.L. Sec. 780.656; M.S.A. Sec. 28.1259(6), and that the evidence seized during the subsequent search should therefore be suppressed.

Pursuant to defendant's motion, an evidentiary hearing was conducted in the Recorder's Court. At the hearing, the respective parties presented testimony concerning the manner of the execution of the search warrant. The prosecutor elicited the testimony of two members of the Detroit Police Department. Sergeant Ronald Ferguson testified that on September 15, 1984, at approximately 5:30 p.m., he and eight or nine other officers appeared at 5230 South Clarendon, in the City of Detroit, with a warrant to search the premises for narcotics. Upon their arrival, Sergeant Ferguson went to the front door and knocked on the screen door. According to Ferguson, the screen door was closed but unlocked and the inner door was open. After knocking, Ferguson announced the police officers' presence and the fact that they had a search warrant. Then, Ferguson saw a young black male run past the door towards the stairs. Figuring that the male was going to attempt to dispose of the narcotics, Ferguson and the other officers entered the premises immediately. Ferguson went through the living room towards the dining room and observed defendant and defendant's daughter, Gloria Slater, standing in the dining room. Meanwhile, the other officers ran upstairs, where they apprehended the young male and confiscated the drugs.

Officer Fred Watkins testified that after Sergeant Ferguson knocked on the door and announced his purpose and presence, Watkins saw the black male, who was later identified as defendant's son, Thomas Slater, run up the stairs inside the house. Watkins and the other officers then entered the house, whereupon Watkins approached defendant and Gloria Slater. Watkins took a purse from defendant's possession, in which he found three small zip-loc baggies containing a white powder suspected to be cocaine and a .25-caliber automatic gun. On cross-examination, Watkins testified that it took only two seconds to open the screen door and walk into the house.

Defendant took the stand at the hearing to testify in her own behalf. Defendant testified that she was asleep in the living room at the time the officers entered her house and did not wake up until she heard her son screaming at the officers. Defendant then approached the front door and, seeing that the officers were arresting her son, told them to leave her son alone. Contrary to Officer Watkins's testimony, defendant testified that her purse was lying upstairs on her bed and that she did not have it or any narcotics in her possession at the time. Defendant insisted that she did not hear any of the officers knock on the door or announce their presence prior to their entry into the premises. Defendant stated that at the time of the incident the inner door was open, but the screen was closed.

Gloria Slater also testified on behalf of the defense. Slater testified that she was in the kitchen, in the back part of the house, when the officers first came onto the front porch. According to Slater, she walked out of the kitchen, through the den and into the living room, whereupon she saw the officers in the house. Slater testified that she did not hear the police officers before they entered the premises and did not hear anybody knock on the door. Slater corroborated defendant's testimony that the police retrieved the purse from the upstairs part of the house and that Thomas Slater did not try to run upstairs prior to his detainment.

On March 1, 1985, the trial judge ruled that the officers executing the warrant had not substantially complied with the knock-and-announce statute. The trial judge explained that the officers were not refused admittance and improperly entered the premises prior to allowing a sufficient time for a reply to their announcements of identity and purpose. Accordingly, the trial judge entered an order suppressing the narcotics seized during this search, and an order of dismissal followed.

The people appeal from the order of dismissal based on the suppression of evidence obtained in alleged violation of Michigan's knock-and-announce statute, M.C.L. Sec. 780.656; M.S.A. Sec. 28.1259(6). This statute provides as follows:

"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."

Following the evidentiary hearing, the Recorder's Court held that the police officers failed to comply with the statute because they entered defendant's premises before having been refused admittance. We disagree.

Under the quoted statute, refusal of admittance is not limited to affirmative denials. People v. Doane, 33 Mich.App. 579, 583, fn. 3, 190 N.W.2d 259 (1971), rev'd. on other grounds 387 Mich. 608, 198 N.W.2d 292 (1972); People v. Harvey, 38 Mich.App. 39, 195 N.W.2d 773 (1972). In Doane, a plainclothes officer went to the defendant's home possessing an arrest warrant for the defendant's son and a search warrant. After completing a marijuana transaction and arresting the defendant's son on the driveway, the officer went to the front door accompanied by other officers, knocked on the door and said "Police officers--open up". The officers then observed the defendant and his wife watching them through the window. When it became apparent that neither the defendant nor his wife would open the door, the officers forcibly entered the premises and executed the search warrant. Based on these facts, this Court held that the officers were refused admittance and that the knock on the door, the announcement of the police officers' identities, the demand to be admitted and the allowance of a reasonable time for the occupants to answer the door substantially complied with the statute.

In the instant case, the officers were denied admittance and the manner in which they executed the search warrant...