People v. Vasquez , 227 Mich. App. 108 ( 1998 )

575 N.W.2d 294 (1997) 227 Mich. App. 108

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Jeremy Steven VASQUEZ, Defendant-Appellee.

Docket No. 204506.

Court of Appeals of Michigan.

Submitted July 8, 1997, at Lansing. Decided December 19, 1997, at 9:15 a.m. Released for Publication March 10, 1998.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Michael D. Thomas, Prosecuting Atty., and J. Thomas Horiszny, Asst. Prosecuting Atty., for People.

James Tiderington, Saginaw, for defendant-appellee.

Before WAHLS, P.J., and HOLBROOK and MARK J. CAVANAGH, JJ.

ON REMAND

PER CURIAM.

The prosecution originally appealed by leave granted from the trial court's order granting defendant's motion to suppress evidence seized during the execution of a search warrant. This Court initially affirmed the trial court's order. People v. Vasquez, unpublished opinion per curiam of the Court of Appeals, issued March 11, 1997 (Docket No. 176917). The prosecution applied for leave to appeal, and our Supreme Court, in lieu of granting leave, remanded to this Court "for reconsideration in light of Richards v. Wisconsin, 520 U.S. [385], 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997)." People v. Vasquez, 454 Mich. 920, 564 N.W.2d 901 (1997). On remand, we again affirm.

In Richards, the United States Supreme Court reiterated its holding that "the Fourth Amendment incorporates the common-law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry." Richards, supra, at ___, 117 S.Ct. at 1418. The Court held that the knock-and-announce requirement could give way "under circumstances presenting a threat of physical violence," or "where police officers have reason to believe that evidence would likely be destroyed if advance notice were given." Id. at ___, 117 S.Ct. at 1420. Whether circumstances justify noncompliance with the knock-and-announce rule must be decided case by case. Id. at ___, 117 S.Ct. at 1421. In order to justify a "no-knock" entry, "the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Id.

Obviously, Richards does not alter our analysis regarding Michigan's knock-and-announce statute, M.C.L. § 780.656; M.S.A. § 28.1259(6). In addition, we continue to believe that the entry violated the Fourth Amendment. This Court will not disturb a trial court's ruling at a suppression hearing unless that ruling is found to be clearly erroneous. People v. Chambers, 195 Mich.App. 118, 121, 489 N.W.2d 168 (1992). A decision is clearly erroneous if, although there is evidence to support it, the Court is left with a definite and firm conviction that a mistake has been made. Id.

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 P.2d 976, 979 (Ariz.App., 1981); People v. Bennetto, 10 Cal. 3d 695, 701, 111 Cal. Rptr. 699, 517 P.2d 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.

The facts of this case also do not leave us with a definite and firm conviction that it would have been futile for the police to knock and announce their presence. In Richards, when the police knocked, the petitioner opened the front door a crack while a chain was still attached to the door. When the petitioner saw a uniformed man, he quickly slammed the door. Richards, supra, at ___, 117 S.Ct. at 1419. Similarly, in People v. Doane, 33 Mich.App. 579, 581-584, 190 N.W.2d 259 (1971), rev'd on other grounds 387 Mich. 608, 198 N.W.2d 292 (1972), after knocking, the police saw the defendant and his wife observing them through a window. Here, in contrast, as the officers approached the house, a person looked out the front window and saw them. The officers then observed movement toward the rear of the house. This is not a case where the officers heard running or other suspicious noises. See People v. Williams (After Remand), 198 Mich.App. 537, 545-546, 499 N.W.2d 404 (1993) (summarizing cases in which exigent circumstances have been found). Under these circumstances, we are not left with a definite and firm conviction that it would have been futile for the police to have knocked and announced their presence.

Finally, there is no indication that, by knocking and announcing, the police would have inhibited the effective investigation of the crime. The fact that the police observed some indeterminate movement toward the rear of a crowded house does not necessarily create a reasonable suspicion that evidence was about to be destroyed.^[1] If these circumstances justify noncompliance with the knock-and-announce rule, then the rule is essentially meaningless. Whatever the precise status of the knock-and-announce rule, the Supreme Court has declined to render it meaningless. See Richards, supra, at ___, 117 S.Ct. at 1421.

Evidence seized in violation of the Fourth Amendment is subject to the exclusionary rule. People v. Polidori, 190 Mich. App. 673, 678, 476 N.W.2d 482 (1991). Under the particular facts of this case, and applying the test set out in Richards, we are not left with a definite and firm conviction that the trial court erred in granting defendant's motion to suppress.

Affirmed.

NOTES

[1] Indeed, it would seem far more suspicious if, at 7:30 p.m., the police approached a house with thirteen people inside and saw no movement.