People v. Asher

513 N.W.2d 144, 203 Mich. App. 621

• Court: Michigan Court of Appeals
• Decided: February 22, 1994
• Docket: Docket 158306
• Status: Published

Opinions

Sawyer, P.J.

The people appeal from an order granting defendant’s motion to suppress evidence, which resulted in the dismissal of a charge against defendant of possession with intent to deliver marijuana. MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c). We affirm.

On August 4, 1992, police officers from the City of Romulus observed various transactions taking place at defendant’s residence. Numerous persons were seen entering the home, remaining for a minute or two, and then leaving. The officers also observed a narcotics transaction taking place in a car outside the premises. On the basis of these observations, they obtained a search warrant.

In executing the search warrant, the first officer to the front door knocked, and several officers then announced their presence as police officers. Within five seconds of knocking and announcing, the officers entered the residence. As a result of the search, defendant was arrested and charged with possession with intent to deliver marijuana.

On September 18, 1992, defendant filed a motion to suppress evidence, arguing that the officers executing the search warrant failed to comply with the Michigan knock-and-announce statute. MCL 780.656; MSA 28.1259(6). Officer Brandemihl testified at the suppression hearing that he heard nothing from the inside of the residence before gaining entry. He further testified that, in his experience, narcotics traffickers usually possess guns in their homes, but that he did not have any firsthand knowledge concerning whether any guns were in this residence at the time of the search.

After hearing the testimony and listening to arguments from both sides, the trial court granted defendant’s motion to suppress, citing People v Polidori, 190 Mich App 673; 476 NW2d 482 (1991).

The people first argue that the police officers’ entry into the premises less than five seconds after knocking and announcing their presence did not violate the knock-and-announce statute. MCL 780.656; MSA 28.1259(6). We disagree.

The people argue that the testimony at the suppression hearing, that the officers witnessed foot traffic at the residence and that weapons are usually present in the home of narcotics traffickers, justified the immediate entry into the home and that, therefore, this case can be distinguished from Polidori. We agree that strict compliance with the knock-and-announce statute may be excused if police officers have a basis to conclude that evidence will be destroyed or lives will be in danger by the delay. However, nothing in this case indicates that there was any evidence that drugs were kept in a manner that would facilitate their immediate destruction or that these particular defendants possessed weapons. Without such evidence, there was no justification for the police to dispense with the requirements of the knock-and-announce statute. People v Marinez, 160 Ill App 3d 349, 353; 513 NE2d 607 (1987), cited with approval in Polidori, supra. We, therefore, are constrained to conclude that the police officers violated Michigan’s knock-and-announce statute.¹

Finally, the people argue that the exclusion of the evidence obtained by a valid search warrant for the premises was not the appropriate remedy. We would not conclude that a timing error in the execution of a valid search warrant offends the Fourth Amendment reasonableness requirement. However, in Polidori, this Court held that if the method of entry violates the knock-and-announce statute, the exclusionary rule must apply. Consequently, we are compelled by Administrative Order No. 1990-6 to follow Polidori and conclude that the evidence recovered must be suppressed. Were it not for the administrative order, we would not require the evidence to be suppressed.

Affirmed.

Weaver, J., concurred._

1 The' dissent endeavors to read Polidori as not requiring application of the exclusionary rule to violations of the knock-and-announce statute. It is clear, however, that when the Polidori opinion is read as a whole, the Court concluded that the exclusionary rule must be applied to such violations unless there is a basis for concluding that the officers’ conduct was reasonable under the circumstances, such as the existence of exigent circumstances or heightened danger to the officers. The dissent points to no such circumstances in this case.