People v. Vasquez

602 N.W.2d 376, 461 Mich. 235

• Court: Michigan Supreme Court
• Decided: October 26, 1999
• Docket: Docket 111275
• Status: Published

Opinions

AFTER REMAND

Per Curiam.

This is a drug prosecution in which the circuit court suppressed the principal evidence on the ground that the police violated the so-called “knock and announce” statute. The Court of Appeals affirmed, but we reverse the judgment of the Court of Appeals, and remand this case to the circuit court for further proceedings.

i

On an evening in March 1994, officers of the Saginaw Police Department executed a search warrant at a home in the city. The warrant authorized the police to search for marijuana, drug-related paraphernalia, and various other material. Neither the warrant nor the supporting affidavit mentioned weapons at the home.¹

At a subsequent hearing on the defendant’s motion to suppress, the first officer into the home testified that, at a briefing just before the warrant was executed, the officers were told that “one of the subjects was known to carry a shotgun either on his person or close by him the majority of the time.” This statement concerned a person who reportedly lived at the house.

The officer also explained the normal procedure for executing a search warrant:

Usually, as we enter, proceed quietly up, we knock, announce “Police, search warrant,” and then gain entry.

That approach was not followed in the present case, however. The officer gave this account:

Q. Okay. And what did you do on this particular date at this location?

A. This particular case, the house is set back from the roadway and sidewalk, further back than other houses along the street. As we’re approaching, I’m about—I would say, approximately 12 to 15 feet away from the front porch. A party looks out the front window, which was located to the right side of the front door, and sees myself and [another officer] as we’re approaching, looks, and then I see a movement to the rear of the house once they see us.

Q. Okay. What did you do then?

A. Yell “Police, search warrant.” The screen door was already open, and I kicked the door in and made entry.

Q. Okay. Anything else about your actions at that time that you can add to . . .

A. Well, as I kicked the door open and went in, I could see personnel moving to the rear of the house. I’m yelling “Down, police, search warrant.”

At the same time, there’s one party that’s trying to get out the side door, which is located on the south side of the house.

Q. How many individuals were located inside then?

A. Thirteen people, very small house.

When the court asked, “Officer, how much time elapsed from the time that you announced your presence as police officers and that you had a search warrant to the time that the door went down?” the officer responded, “Less than a second.”²

Approximately ten officers were involved in the raid. The officer who testified at the hearing never said they were in uniform, but he twice told the circuit court that a person looking out the window could identify them as police officers.

On cross-examination, the officer confirmed that the only information he had about the presence of a weapon was the statement that had been made during the briefing. Asked on recross-examination whether there were any guns found in the house, the officer responded, “I have no idea. Our normal procedure is to secure the residence, the personnel involved, we cuff everyone with a few exceptions, and then we turn it over to Vice, and it’s their investigation from there.”³

As a result of evidence found during the search, the defendant was charged with possession of marijuana with intent to deliver. MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c), as amended by 1989 PA 143.⁴

At the conclusion of the hearing on the defendant’s motion to suppress, the circuit court ruled that there were “insufficient exigent circumstances to justify a violation of the knock-and-announce statute.”⁵ Citing People v Polidori, 190 Mich App 673; 476 NW2d 482 (1991), and People v Asher, 203 Mich App 621; 513 NW2d 144 (1994), the circuit court concluded that this violation should lead to suppression of the evidence obtained in the raid.

The prosecutor appealed in the Court of Appeals, which affirmed.⁶ The prosecutor then applied to this Court for leave to appeal, and we remanded the case to the Court of Appeals for reconsideration in light of Richards v Wisconsin, 520 US 385; 117 S Ct 1416; 137 L Ed 2d 615 (1997). 454 Mich 922 (1997).

On remand, the Court of Appeals again affirmed. 227 Mich App 108; 575 NW2d 294 (1997). In a central passage of its opinion, the Court wrote:

The facts of this case do not leave us with a definite and firm conviction that knocking and announcing would have increased the danger to the police. Although the police officers had been advised that one of the individuals thought to live at the house was known to carry a shotgun, there was no evidence suggesting that this individual was likely to use the weapon against the police or that he had violent or assaultive propensities. See State v Piller, 129 Ariz 93, 96; 628 P2d 976, 979 (Ariz App, 1981); People v Bennetto, 10 Cal 3d 695, 701; 111 Cal Rptr 699; 517 P2d 1163 (1974). Clearly, the fact that an occupant of a residence owns or carries a gun cannot eliminate the knock-and-announce requirement in all cases. [227 Mich App 110-111.]

The prosecutor has applied to this Court for leave to appeal.

n

In light of our recent decision in People v Stevens, 460 Mich 626; 597 NW2d 53 (1999), we need not decide whether the police violated the constitutional and statutory knock-and-announce requirement under the circumstances of this case. Even if such a violation occurred, suppression of the evidence is not the appropriate remedy.

Discussing the nature and basis of the suppression rule in this context, we cautioned in Stevens that the U.S. Supreme Court has made it “quite clear . . . that there has to be a causal relationship between the violation and the seizing of the evidence to warrant the sanction of suppression.” 460 Mich 639. We also observed that “[t]he exclusionary rule is not meant to put the prosecution in a worse position than if the police officers’ improper conduct had not occurred, but, rather, it is to prevent the prosecutor from being in a better position because of that conduct.” 460 Mich 640-641.

For these and other reasons, including the absence of a legislative intent to apply the exclusionary rule to evidence seized in violation of the statute, 460 Mich 645, this Court found the remedy of suppression unavailable. A key element of the analysis, in both the constitutional and statutory contexts, was the inevitability of discovery. The “knock and announce” principles do not control the execution of a valid search warrant—they only delay entry for a brief period. 460 Mich 642, 645-646.

Bringing these considerations together, this Court concluded:

In the present case, the police were acting under a valid search warrant and within the scope of that warrant. Even though the method of entry into the dwelling violated the knock-and-announce principles, the evidence inevitably would have been discovered. There are both state and federal sanctions for such violations that serve as deterrents for police misconduct that are less severe than the exclusion of the evidence. Additionally, exclusion of the evidence will put the prosecution in a worse position than if the police misconduct had not occurred. Therefore, we hold that the trial court erred in granting the defendant’s motion to suppress the evidence because of the violation of the Fourth Amendment. Additionally, we fail to discern any legislative intent to have the exclusionary rule apply to violations of the “knock and announce” statute. [460 Mich 647.]

In the present case, we need not determine whether knock-and-announce principles were violated. In all other respects, the above statement is as applicable to the present case as it was in Stevens. As in Stevens, suppression of the evidence is not the appropriate remedy in this case, even if there was a violation of the knock-and-announce requirement.

For these reasons, we reverse the judgment of the Court of Appeals, and remand this case to the trial court for further proceedings. MCR 7.302(F)(1).

Weaver, C.J., and Taylor, Corrigan, Young, and Markman, JJ., concurred.

1 The affidavit contained a reference to weapons, but that statement related to the absence of weapons on the person of a confidential informant

2 The only other witness at the suppression hearing was the defendant’s mother. She said that she never heard anyone say anything until the door was kicked open and the police entered the house.

3 The fact that a shotgun may not have been found is of no consequence. All that matters is what the officers had reason to believe at the time of their entry. United States v Ramirez, 523 US 65, 71, n 2; 118 S Ct 992; 140 L Ed 2d 191 (1998).

4 The current language is found in MCL 333.7401(2)(d); MSA 14.15(7401)(2)(d), as amended by 1998 PA 319.

5 Though popularly called the “knock and announce” statute, this measure actually does not require the police to “knock.” Rather, they must give notice of their authority and purpose.

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. [MCL 780.656; MSA 28.1259(6).]

6 The Court of Appeals initially denied the prosecutor’s application for leave to appeal, but granted the application on rehearing and then affirmed. Orders of the Court of Appeals dated August 8 and September 9, 1994, and unpublished opinion per curiam, issued March 11, 1997 (Docket No. 176917).