People v. Strelow

• Decision Date: 17 March 1980
• Docket Number: Docket No. 78-3704
• Citation: 96 Mich.App. 182,292 N.W.2d 517
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert John STRELOW, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 517

292 N.W.2d 517

96 Mich.App. 182

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert John STRELOW, Defendant-Appellant.

Docket No. 78-3704.

Court of Appeals of Michigan.

March 17, 1980.

Released for Publication May 28, 1980.

John J. Van De Graff, Jr., St. Clair Shores, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter E. Deegan, Pros. Atty., Peter R. George, Asst. Pros. Atty., for plaintiff-appellee.

Before KELLY, P. J., and BRONSON and RILEY, JJ.

KELLY, Presiding Judge.

Defendant was found guilty by a jury of resisting and obstructing an officer in the discharge of his duties contrary to M.C.L. § 750.479; M.S.A. § 28.747 and ordered to pay a fine of $100, court costs of $150 and restitution of $135. Defendant appeals of right.

According to the testimony presented by the prosecution the charge against defendant arose out of the following series of events which occurred on the evening of June 23, 1977. While driving south on Dyke Road at approximately 8:30 p. m., Gary Brusate, a Clay Township police officer, clocked defendant's vehicle at 62 miles per hour in a 50 miles per hour zone. Brusate waited for traffic to clear, made a U-turn, and proceeded to follow defendant. Before the officer was able to execute his turn, a third vehicle intervened traveling in the same direction as defendant at a slower rate of speed. By the time Officer Brusate was able to close the distance between them, defendant was no longer speeding. Due to the presence of the other vehicle positioned between the defendant and himself, Brusate did not activate his siren or flashing lights. The three-car procession turned left on Anchor Bay Drive. The middle car subsequently turned off in another direction and Officer Brusate followed defendant down a dead-end street and into defendant's driveway. At this time defendant was traveling at approximately 25 miles per hour. As defendant was exiting from his vehicle the officer beeped his horn and, alighting from the marked police car, shouted "Hey" to defendant Strelow. Mr. Strelow, who saw the officer and heard his call, ran into the house with Brusate close behind. Without stating his purpose or requesting admission, the policeman followed defendant into the residence. When defendant refused to produce his driver's license the officer placed him under arrest. A protracted scuffle ensued and defendant was finally subdued upon the arrival of additional officers who had been called to the scene.

Defense witnesses, including Strelow's brother-in-law who was in the house when the defendant returned home and two neighbors, presented a different version of the events that occurred that evening. All were in agreement that defendant arrived home 1 1/2 to 3 minutes before the police car appeared on the scene. Defendant's own testimony, and that of his brother-in-law, differed from the complainant's testimony as to the sequence of events and nature of the struggle that took place once Brusate was inside the home.

The critical issue raised on appeal is the legality of the arrest that was effected subsequent to the officer's warrantless, unannounced entry into defendant's private residence. Defendant's first claim in this regard is focused on the timing of the arrest. The Supreme Court stated in People v. Johnson, 86 Mich. 175, 48 N.W. 870 (1891), that a warrantless arrest for an offense committed in the officer's presence must be made immediately. However, determination of proper timing is dependent on all the facts and circumstances of a particular case, particularly the purpose for delay and the actual length of time between criminal act and arrest. See 58 A.L.R.2d 1056. In People v. Gray, 23 Mich.App. 139, 178 N.W.2d 172 (1970), the officer followed a reckless driver until he reached his residence. The officer called additional units to his location, and after they arrived the policeman made the arrest. This Court found such facts to constitute sufficient immediacy. In accord with Gray, we find the officer's actions were sufficiently immediate upon commission of the traffic violation.

Although we might question the wisdom of Officer Brusate's decision to postpone issuing a traffic citation until he reached defendant's home, we are presented with more serious issues in the context of his use of force in effectuating the misdemeanor arrest and the failure to obtain permission to enter a home.

In its attempt to justify the officer's warrantless, unannounced entry into defendant's household the prosecution relies on M.C.L. § 764.15; M.S.A. § 28.874 which permits a police officer to make a warrantless arrest when a misdemeanor is committed in his presence. The people claim that this proper exercise of authority encompasses the right of entry into a private residence. Support for this position is found in 76 A.L.R.2d, § 2(b), 1441 which provides:

"Where the circumstances are such that a police officer is justified in believing that a misdemeanor is being committed in his presence, he may enter a private residence or enclosure in order to make an arrest for such offense, even though he has no warrant."

Authority to make a warrantless entry into a private residence does not automatically include however, the right to enter without proper notice. A.L.R. subsequently states:

"There is some rather scattered authority, sometimes reflecting statutory requirements, in support of the conclusion that, assuming entry into private premises for the purpose of making an arrest for a misdemeanor, without a warrant, is otherwise proper, the officer in question has no authority to enter without first requesting admittance." 76 A.L.R.2d, § 2(c), 1443.

Defendant, in advancing his position that the arrest was illegal due to the manner of entry, relies on M.C.L. § 764.21; M.S.A. § 28.880 which provides:

"To make an arrest, a private person, if the offense be felony committed in his presence, or a peace officer with a warrant or in cases of felony when authorized without a warrant, may break open an inner or outer door of any building in which the person to be arrested is or is reasonably believed to be if, after he has announced his purpose, he is refused admittance."

Although the statute is silent as to arrest for misdemeanors, we believe the same requirements, clearly designed to protect reasonable expectations of privacy, are mandated for lesser offenses. The people respond that demanding formal notice in the instant case would amount to an elevation of form over substance since defendant was aware of Brusate's presence and purpose. This Court has previously recognized the validity of this argument by finding that in some cases, where declaration of purpose would be futile or an unnecessary formality, substantial compliance with the statute is sufficient. People v. Poindexter, 57 Mich.App. 419, 225 N.W.2d 788 (1975); People v. Brown, 43 Mich.App. 74, 204 N.W.2d 41 (1972). However, viewing the evidence in a light most favorable to the state, we do not find that Officer Brusate's conduct triggers application of the substantial compliance doctrine. The defendant testified that he was unaware of the speeding violation. The patrolman followed him for some distance at a reduced speed without ever activating his flasher lights or siren or signalling the defendant to pull over. Police vehicles, absent such demonstrations of authority, are part of the common flow of traffic and we are therefore not persuaded that Mr. Strelow was cognizant of the officer's purpose in following him to his home and entering the residence. Certainly the officer's beeping his horn and shouting "hey" did not provide such information.

The people further contend that defendant's response to the officer's summons permitted the police to pursue him into his home for the second alleged misdemeanor, resisting an officer in the discharge of his duties. As previously stated, we are not convinced that the defendant was aware of any violation which would give him cause to elude the officer. Flight alone does not justify an arrest, particularly when defendant is not fleeing the scene of a crime. People v. Tebedo, 81 Mich.App. 535, 265 N.W.2d 406 (1978); People v. Dogans, 26 Mich.App. 411, 182 N.W.2d 585 (1970).

Several cases hold that substantial compliance is met by an announcement of identity which implies a declaration of purpose. United States v. Alexander, 346 F.2d 561 (CA 6, 1965), cert. den., 382 U.S. 993, 86 S.Ct. 575, 15 L.Ed.2d 480 (1966); United States v. Sharpe, 322 F.2d 117 (CA 6, 1963); United States v. Freeman, 144 F.Supp. 669 (D.D.C., 1956). At first blush these cases appear to support the entry made in the instant case since defendant was well aware of the patrolman's identity; however, each case is distinguishable on at least one of several grounds: (1) the arrest was for commission of a serious offense, (2) swift action was necessary to prevent the destruction of evidence or (3) to prevent the flight of the suspect. None of the above circumstances is present in the case at bar. Furthermore, in Alexander, Sharpe, Freeman and Brown, the officer at least indicated by knocking and identifying himself that he sought admission into the dwelling. Here, Officer Brusate did not give any warning of his intention or desire to enter.

In addition to its substantial compliance argument, the people offer the "hot pursuit" exception to the statutory notice requirements as justification for the complainant's conduct. Whether this exception applies to an unannounced nonconsensual entry into a private residence to effect a misdemeanor arrest has not been previously addressed in this jurisdiction. New York ¹ and California ² have enacted similar legislation clearly applicable to both felony and misdemeanor arrests. Both jurisdictions recognize that hot pursuit of a fleeing felon excuses deviation from the rule. People v. Karpel, 66 App.Div.2d 960, 411 N.Y.S.2d 718 (1978); ...