*1
v
Gillam
PEOPLE GILLAM
(Calendar
10).
Argued April
No.
Decided
Docket No. 131276.
July
2007.
charged
Ingham
with
E.
in the
Circuit Court
Willie Gillam was
suppress
He moved to
several
substances violations.
controlled
apartment
his
after he was arrested without
evidence found in
warrant,
apartment
he left the
arrest occurred when
which
alleged
response
requests
of
officers. The defendant
to the
requests
apartment
his
to
that the
that he come out of
officers’
entry
apartment
into
talk with them constituted constructive
the
purposes, thereby invalidating the arrest
for Fourth Amendment
evidence,
subsequent
and the
seizure of
which occurred when
the
get
apartment
request
an officer
the
at the defendant’s
to
entered
plain
the
and shoes
the
defendant’s coat
and observed
evidence
court,
Brown, J.,
sight.
granted
Thomas L.
the motion to
The
trial,
suppress.
prosecution
proceed
When the
declined to
with
dismiss,
granted
the
the court
the defendant’s motion to
but
appealed
prejudice.
prosecution
and the
dismissal was without
The
EJ.,
JJ.,
Appeals,
affirmed
Court
and Saad Neff,
BANDSTRA,
(Docket
4,2006
curiam,
unpublished opinion per
April
in an
issued
259122).
Supreme
granted
prosecution’s appli-
Court
No.
The
(2006).
appeal.
for
cation
Mich 969
leave
joined by
by
opinion
In an
Chief
Justices
Justice
Taylor,
Supreme
Court held-.
Corrigan, Young,
Markman,
Supreme
adopt the
Even if
Court
constructive
were
recognized
federal circuit courts of
doctrine
several
appeals,
to establish that
the defendant would fail
constructively
apartment
in violation
his Fourth
entered
right
privacy.
Amendment
suspect
A
his or her
1.
occurs when a
leaves
response
The
home in
to coercive
conduct.
actions
knocking
merely
on the front door of
officers in this case
involved
step
asking
An
the defendant to
outside.
step
speak
request
out of his
officer’s
that an individual
house
identify any
failed to
is not coercive.The defendant
with
officer
compulsion by
police.
presence
specific
statements
did not
three
whom the defendant observed
authority physically they what cannot do cannot enter — someone’s home to effectuate an arrest without a warrant. The regarding applies decision requires whether the doctrine a case- by-case analysis degree and should be made on the basis of the of coerciveness of question conduct. The most relevant whether a reasonable compelled would feel to leave his or her may home. Coercive statements alone be sufficient to invoke the constructive doctrine. The facts of this case indicate that entry. judgment made constructive of the Court of Appeals should be affirmed. Cox, Michael A. Attorney General, Thomas L. Casey, General, Solicitor III, Stuart J. Dunnings, Prosecuting Attorney, and J. Bostic, Nicholas Assistant Prosecuting Attorney, for the people. Tyszkiewicz
Roman J. for the defendant.
Amicus Curiae: Gillam Opinion of the Court President, Kym Worthy, L. Prosecut- Gorcyca,
David A. Chief of ing Attorney, Timothy Baughman, Prosecuting for Attor- Research, Training, Appeals, neys Michigan. Association repeated case TAYLOR, C.J. At issue in this is whether come requests by officers for defendant out entry into his his constituted constructive thereby purposes, home Fourth Amendment invali- for dating rendering his arrest without a warrant We obtained inadmissible. con- subsequently evidence if the constructive adopt clude that even we were recognized by federal circuit entry doctrine several case would fail to courts of this appeals, constructively entered his establish that right Fourth Amendment home in violation judgment privacy. Accordingly, we reverse contrary to the and remand Court of held Appeals proceedings for further this to the trial court case *3 this opinion. consistent with I. AND PROCEDURAL POSTURE FACTUAL BACKGROUND alleged accomplice Defendant’s was arrested after at On the selling least to an undercover officer. drugs twice during drug transac- gathered basis information (who on tions, learned that defendant was on tether in his and probation) was probable had cause arrest they determined that 30, 2004, plain On March three clothes defendant. patrol officers drove to officers and two uniformed the arrest. While defendant’s to effectuate apartment Kostanko, officer, Del watched plain one clothes Officer flee, tried in case defendant the back terrace window Blow, officer, stood Jerry Officer plain and one clothes building, of the apartment behind in the stairwell a wall 479 Mich Opinion of the Court officer, the remaining plain Bey, clothes Officer Donald and the two uniformed approached officers front door of apartment and knocked.
Defendant testified that when the knocked on door, he checked to make sure tether was not he malfunctioning opened before the door. He testified: out, No, I [T]he asked me to come told them: I couldn’t I come out because was on tether. went We back They kept telling and forth. kept me: Come out the door. I telling No, I’m forth, them: on tether. back We went back and forth.
According Bey, to Officer “back forth” with defendant coming about out took a matter place seconds, and defendant cooperative. Bey was did not recall saying that he could not come out of his apartment because of the tether. Officer Blow only stated that he while heard bits and pieces of the conversation, did he not hear defendant say he could not come out because he was on a tether. Defendant claimed he eventually came of the apartment out “because there right. was officer to my There was something it about that made me feel threatened. So I came on out and event, arrested me.” In any although coerced, he claimed that he was he admitted that he physically walked out that no touched him he before crossed the threshold. Bey
Officer testified the entire arrest incident calm, and no weapons were drawn. Officer Ko- stanko testified similarly the arrest took place without incident cooperative. defendant was In contrast, specifically asked, when “Were people yell- *4 ing, were excited people fairly or was this calm?” defendant that he “guessed” testified the atmo- Gillam Opinion of the Court excited.1 it “could have been” excited and was sphere after both testified that Bey and Kostanko Officers apart- entered the arrested, Kostanko defendant was coat and get defendant’s at request ment defendant’s a inside, piece Kostanko observed Officer While shoes. contained the undercover view that plain paper of number, and telephone and undercover name officer’s as evidence. he confiscated it examination, counsel defense the preliminary At on the piece paper of objected to admission not enter could he believed ground that The prelimi- warrant. apartment defendant’s without adjourned, suppression was nary examination court, the trial conducted, after which hearing was events, evidently crediting version defendant’s leaving into defendant was coerced concluded that suppress motion to apartment granted piece paper.2 evidence of uniformed officers created “[t]he The claims that dissent atmosphere,” post facts at instant excited coercive excited, repeated under arrest to demands for house “reveal residence,” at the coercive leave his id. this establishes entry. However, clearly necessary as indi to find constructive conduct testimony repudiated unequivocally from and not cated the officers himself, atmosphere regarding the encounter at defen was dant’s door calm. clearly it that the trial court did not err when dissent claims Contrary atmosphere to the dissent’s found that an excited existed. events, the trial court credited defendant’s version version of while events, unequivocally stated that there an excited defendant never explicitly atmosphere, find that there was an and the trial court did not Rather, atmosphere. court the trial stated: excited Well, ... is before the Court to the evidence and what I listened really me. officers had an troubles These
is this arrest which address, gentleman They looked like. a name. knew what had expeditious there, they They I found it more than went and think probable just go this cause appropriate there and arrest him on Tran, present at time even had Officer who wasn’t from *5 Mich 253 [July- Opinion the of Court suppression After the hearing, prosecutor the moved adjourn to to allow him to consider to appeal whether the suppression decision. The trial court denied the motion. The next what day, at was to be the start of trial, the prosecutor cited the suppression decision along plea with the failure to obtain a from defendant’s accomplice respectfully proceed. declined to The by Look, of I the arrest.... believe were told Mr. Gillam: I’m gentleman on tether. The has a record. He a record here has as long my certainly system. as arm. So he is familiar with the And I’m certain he [sic] knows the meets of a bounds tether system. told, told, apparently And he knows he was he was he said step he didn’t to He want outside. was or other —the somehow say really steps officers he I outside. find that hard believe. In
any event, was, another, he step 1 think in some manner or caused to added.) (Emphasis outside and be arrested. Thus, “finding” and, atmosphere there was no anof excited accord- ingly, any error, error, assessment trial court much clear less in a “finding” possible. never court made is not Nevertheless, the finding dissent also claims that the “trial court’s clearly erroneous, that there awas coercive environment was not given quantity weight testimony supported that it.” Post If, contends, id., at 275 n 12. as the “explicitly” dissent court trial stated, found there was coercive environment when it “He was say really steps somehow or other —the officers he I outside. find that any event, was, hard to believe. I think he some manner or another, step arrested,” caused to outside and be the trial court’s clearly conclusion be finding would erroneous because the was con- trary testimony officers as well as defendant. As noted, previously essentially the officers testified that defendant was cooperative stepped asked, outside when and defendant himself acknowledged physically he walked out and that no Moreover, officers him touched before he crossed the threshold. specific identify any could or statement action an coercion; rather, officer generally that would indicate he testified outside, kept telling something him to come and that about standing right the officer made him feel threatened. To the extent the trial court found that the officers created coercive environment, finding apparent the clear error in such is where the trial court itself was unable to articulate how the officers’ actions or statements were coercive. v Gillam
Opinion Court dismiss, motion to defense counsel’s granted court trial prejudice. without dismissal was but the decision appealed suppression prosecutor Appeals, Court of which and the dismissal curiam, issued opinion per unpublished affirmed 259122). (Docket explained The Court 4, 2006 No. April (1) not because it was suppressed the evidence but because defendant a search warrant seized without (2) warrant, and while a an arrest was arrested without on probable needed arrest someone warrant is not home, required, person’s outside the warrant cause *6 circumstances, to arrest someone inside exigent absent It the as whether “the phrased the issue person’s home. con- evidentiary basis for trial court had a reasonable actually coerced defendant to cluding himself to expose residence and thus place leave of After Slip op a at 2. warrant].” arrest without [an testimony, Appeals the Court of reciting defendant’s stated: prosecutor] argues did describe that defendant
[The
coercion,
left
volun-
any
but that he
actual
to
tarily. However,
did describe his reluctance
The
court credited this
because of his tether.
trial
leave
to
testimony,
position
and observed that defendant
implications
breaking
of
tether. De-
understand the
repeated police
additionally
pattern
described
fendant
on the
apartment.
persistence
Such
entreaties
leave
response
to defendant’s
part of uniformed
premises could
disinclination to leave the
initial stated
reasonably
[Id.]
actual coercion.
be taken
constitute
in this Court for leave to
prosecutor applied
The
asking
parties
granted
appeal,
leave to
appeal. We
briefed,
address,
to be
whether
among
issues
entry into a
“constituted a constructive
police conduct
of a Fourth Amendment
home for purposes
citizen’s
(2006).
Opinion op the Court
II. STANDARD OF REVIEW The scope of the constructive doctrine and whether the police conduct in the instant consti- case tuted dwelling of defendant’s Fourth raises Amendment implications. Issues con- stitutional dimension are de reviewed novo. v People Drohan, (2006). 475 146; Mich NW2d A trial court’s factual findings are generally reviewed for Williams, clear error. 250; v 475 Mich (2006). NW2d
III. ANALYSIS The Fourth Amendment the United States Consti- provides: tution right people persons, to be secure in their
houses, papers, effects, against unreasonable searches seizures, violated, shall not be no shall Warrants issue, upon but probable cause, supported by Oath or affirmation, particularly describing place to be searched, and persons things Const, or be [US seized. IV] Am York, Payton 573; New 1371; 445 US 100 S Ct
L Ed 2d 639 (1980), the United States Supreme Court held that were prohibited by the Fourth *7 Amendment from entering a suspect’s home without a warrant or for the consent of purpose making an arrest. so,
Id. 576. In at it doing noted that the amendment applied equally to seizures of persons to seizures of property, the chief purpose was to protect against physical entry of the home. Id. at 587. The Court summarized: apply equally
In terms that property of seizures persons, seizures the Fourth Amendment has drawn a firm line at exigent the entrance to the house. Absent 261 v Gillam Opinion of the Court reasonably be may not circumstances, threshold 590.] [Id. at a warrant. crossed without physical only the actual Hence, Payton prohibited Payton, Since home. suspect’s into a by has ex- Appeals Circuit Court however, the Sixth entry to encom- against physical actual the bar panded oc- entry, which involving situations pass response her home in his or suspect leaves curs when v 743 Morgan, United States conduct. to coercive (CA 1984). Ninth, Third, 6, 1158, 1166 F2d recognized have likewise appeals courts of Tenth circuit Felsing, v entry. Sharrar of constructive the doctrine (CA v Al- 3, 1997); United States 810, 819 128 F3d (CA 9, 1985); United States v 890, F2d 893 784 Azzawy, (CA 1989). 10, Maez, 1444, F2d 1450 872 ap circuit courts of However, other federal several doctrine, and the adopt declined to peals have has to address yet Court Supreme United States (CA Carrion, 1120, 1128 v 809 F2d States issue. United Berkowitz, 1376, F2d 1386 927 5, 1987); States v United (CA Jacobson, 1272, F3d 7, 1991); v Knight 2002). (CA by are bound Although state courts construing fed decisions States Court Supreme United the decisions of law, similarly bound they are not eral there is a conflict courts, and when lower federal courts, this Court the lower federal authority among appropri the most it authority follow the free to deems 606; Mich Corp, Motors ate. Abela Gen (2004). no there is Indeed, even when NW2d courts, free to we are lower federal among the conflict at 607. authority. Id. their reject follow or Associa- Attorneys curiae, Prosecuting Amicus the con- (PAAM), reject us to urges Michigan tion (1) the United argues It entry doctrine. structive probable held that always has Court Supreme States *8 479 MICH253 Opinion op the Court required arrest; cause rather than a warrant for (2) in the Court held that a Payton, supra, warrant not required arrest, the rather accomplish but (3) invade the privacy dwelling; Morgan focusing its have erred in on progeny arrests without a expressed warrant when the concern was the Payton However, crossing thresholds without warrant. we need not decide adopt whether to constructive because, doctrine in this case assuming even applies, doctrine we conclude that defendant here has established the police constructively entered his violation his right privacy. Fourth Amendment siege Unlike the employed Morgan, tactics supra 1161, 1164, namely at the encircling suspect’s cars, house with nine patrol several strategic blocking of the suspect’s car with one of the cars, patrol and the floodlights use of and bullhorn in of night dark to summon the from the suspect home, the actions of the officers in case, the instant himself, according defendant merely involved knock- ing on front asking door and him to outside.3 step
Similarly, the facts of this case do not approach those (CA Saari, United States v F3d 806-807 2001), officers, in which drawn, four with weapons the only surrounded entrance to the apart- ment, one officer carried a shotgun, and the officers announced, “Police.” opened When door, he was instructed to come outside. He testified that he walked outside with his hands in air because he was afraid of being shot. suppressing evidence arrest, seized incident to the the Saari court gave 3 Although scene, there at were five officers defendant testified that only opened there were three at at his front door the time he it. v Gillam Opinion op the Court a reasonable in which of situations examples several he or she was free to not believe would leave: *9 officers, the threatening presence of several
“[T]he touching officer, physical weapon by some display of a an language tone of citizen, use of or or the person of the the request compliance the officer’s indicating that with voice v quoting United States compelled.” [Id. at might be 1870; 544, 554; L Ed 2d Mendenhall, 100 S Ct 446 US (1980).] officer there one more case, while In the instant Saari, one less officer at in there was at the scene than defen- no indication that door, there is the two officers at other presence dant knew of at the three officers Of apartment. the time he left the This did not in uniform. door, only two were his Further, of force. overwhelming show constitute their drew the officers there was no evidence indicated that weapons language or used and defen- his to leave might compelled be him they did not touch testified that specifically dant the threshold. after he crossed until that of the approach behavior did the officers’ Nor (the com- in at Al-Azzawy, supra and, drawn weapons with the trailer pletely surrounded the trailer bullhorn, suspect ordered the leave with a (the Sharrar, at 819 knees), supra or drop at house, guns machine pointed surrounded the out). to come windows, suspects ordered the tactics. overbearing police involved of those cases Each consistently with acted Here, rather, the officers (CA Thomas, 430 F3d in those United States suspect’s 6, 2005), approached four officers which at door and two two at the front daytime, house (which entrance primary as served the back door 479 MICH253 Opinion of the Court house), while one officer stayed patrol car; two who approached primary knocked, entrance asked suspect step outside he when answered the door, and him arrested when he speak refused to with them. The Sixth Circuit found no Fourth Amendment violation because “the officers did not enter the house and . .. defendant. .. did not exit house as a physical result of force or any other conspicuous show of authority by the police.” Id. at 275.
The court noted that consensual encounters between the police and citizens permitted, were did become nonconsensual merely because they place took at the entrance of someone’s home. Id. at 277. The court explained that the difference between consen- sual encounter and a is the show of force the police. Id.
Lastly, the court reasoned that the number of officers *10 present did not always coercion; indicate in finding that four reasonable, officers was the court noted the poten- tial danger of approaching a house believed to contain a drug operation and stated that the officers were permit- ted to take security reasonable precautions. Id. at 280. here, Similarly the three officers approached defen- dant’s apartment to arrest him for conspiracy to deliver controlled substances. one While of the officers testified that he did not expect to find evidence of drug traffick- in ing the apartment because defendant on proba- was and, thus, tion subject to random searches his probation officer, potential danger existed, for still and the officers reasonably sent three officers to defen- dant’s door.
Moreover, while defendant claims he was coerced into leaving his apartment by the repeated requests of the officers, he fails to indicate request how second he step out of the apartment any more coercive than v Gillam Opinion of the Court Thomas, an officer’s And, as noted in single request. speak of his house to step that an individual out request defendant Additionally, the officer is not coercive. with any compulsion. statements of identify specific failed to Boykin the case v Van Buren example, for Compare, (CA 6, 2007), in which the circuit 479 F3d Twp, if had plaintiff in a court noted footnote Amend alleging violation of his Fourth brought a claim by the entry a result of a constructive rights ment as under 42 rights a civil action bringing instead of police, considerably had more likely he would have USC so, In it found the doing at 450 n 2. success. Id. show following unequivocal comments demonstrated “ coming home force, trying your ‘I’m to avoid into And your going out of home.... we’re dragging you ” The statements that if don’t listen to us.’ Id. you do suspect complied, in that had the Boykin indicate physically compelled compli would have here, merely defendant testified that ance. contrast They kept telling come out.... me the “Police said do not threaten come out the door.” These statements or, in compel compliance use of force to physical fact, in manner.4 any threaten by the
Although complicated this case is somewhat initially a tether and refused fact that wore suspect Boykin appar- to leave tether refused to leave his home. While the ently also part a crucial of the dicta The dissent claims that we have missed Boykin “recognized that coercive statements alone could invoke the entry have not Post at 278. We reiterate that we doctrine.” Michigan. yet adopt the constructive doctrine decided whether to assuming arguendo doctrine as articu that the constructive Even *11 however, Boykin apply, by no coercive Sixth Circuit in were lated therefore, unnecessary is, to decide made in this case. It statements were invoke the constructive statements alone can whether coercive doctrine. 479 Mich J.
Opinion by Weaver, in may given greater stay have defendant incentive this alone does not lead to a apartment, presump- by tion that defendant’s will was overborne a show of Rather, tether, by force. backed court order in supplying to remain instead of basis for a reasonable to have felt coerced to leave his dissent, as claimed would seem to provide person wearing more resolve to the it to remain words, order, inside. other armed with a court reasonably defendant should have felt confident refusing police requests that he leave the apartment. Thus, mind, with caselaw we have discussed in it being clear that there was no improper entry, construc- otherwise, tive or defendant was arrested legally, and the trial in suppressing court erred evidence of piece paper containing undercover officer’s name and telephone number.
IV CONCLUSION In summary, even if recognize we were to the con- entry doctrine, structive this case would fail to establish that police constructively entered his home in violation of his Fourth Amendment right to privacy. Accordingly, we reverse the judgment of the Court of and remand Appeals this case to the trial court for consistent proceedings opinion. with this
Reversed and remanded to the trial court. JJ., Corrigan, Young, Markman, concurred with Taylor, C.J.
WEAVER, J. in the I (concurring only). result concur in that, the majority’s holding if the doctrine were to be adopted Michigan, defendant satisfy Gillam would not be able the requirements of the *12 v Gillam Opinion by Weaver, J. doctrine under the I separately facts this case. write to offer a different analysis, purpose truer to the of the Constitution, Fourth Amendment of the United States regard why entry with to the constructive doctrine does not in apply this case.
The constructive doctrine is derived from the Amendment, Fourth which protects right people in Const, be secure their homes. US Am IV The Fourth Amendment provides: right people of the in persons, be secure their
houses, papers, effects, against unreasonable seizures, violated, searches and not shall be and no issue, cause, upon probable supported Warrants shall but by affirmation, particularly describing Oath or searched, place persons things to be and the or to be [Id.] seized. arrests,
In the context of the United Supreme States Court has established that under the Fourth Amend- ment, a required warrant before can enter a home to arrest a person, any absent circum- exigent York, stances. Payton 573; 1371; New 445 US 100 S Ct (1980). L Ed 2d 639 In Payton, the Court stated “the Fourth Amendment has drawn a firm line at the entrance to the house. exigent circumstances, Absent that threshold may reasonably be crossed without a warrant.” Id.
While the holding Payton protects Fourth people’s rights Amendment situations where the police physi- cally home, enter some courts expanded have on Payton provide Fourth Amendment protection when the actions of the lead to a constructive a home. The constructive entry doctrine has been adopted by several federal circuit of appeals, courts including the Sixth Circuit Court of Appeals, to deal Mich 253
Opinion J. Weaver, person with situations which a was arrested outside compelled or her home after conduct the home.1 person to leave and the dissent characterize the majority Both the entry doctrine as when a applying person is arrested after the use coercive2 conduct that compel comply would reasonable with generally agree and leave his or her home. I with characterization, this but I find that the Fourth Amend- ment requires application doctrine that fo- *13 cuses on police regard crossing conduct with to than person’s threshold of home rather belief that he or she must comply request with officer’s to leave Any application places his or her home. more on a emphasis person’s compliance with an officer’s request, and less on the Fourth emphasis Amendment’s home, protection of the undermines the Fourth Amend- ment and creates too broad of a doctrine. In applying entry doctrine, the constructive one should look to the only facts of the case to determine police whether the compelled the person leaving into his or her home show of force or threats to cross the threshold into home. person’s majority argue the dissent over whether
facts of this case that the police show created an excited atmosphere compelled would have leave his apartment. question The more relevant re- garding constructive whether the actu- police ally displayed a show of force or made threats that 1 (CA Morgan, 1158, See United States v 6, 1984); 743 F2d 1166 (CA Felsing, 810, v 3, 1997); Sharrar v 128 United States F3d (CA AlAzzawy, Maez, 890, 9, 1985); United States 784 F2d 872 F2d (CA 1989). (7th compel by Dictionary To coerce is to force or threat. Black’s Law ed). v Gillam Opinion by Weaver, J. would lead a reasonable person that if believe defen- dant did not come out apartment, of his the arresting officers would actually cross the apart- threshold of the ment to retrieve him. case,
Under the facts of this there appears to be no inway which the actions of the could police lead a reasonable believe that the police would have crossed the threshold of the apartment arrest defen dant. According to the testimony of defendant and the officers, arresting the only actions of the police were to approach apartment and ask him to come 3 Any out. other facts that relate to atmosphere surrounding the arrest and whether defendant believed he needed to leave his apartment at the request of the police are not as relevant as the actions under the test for as stated above.4 3 Although standing there were several outside defen door, dant’s asked defendant to come out even after he first refused, any these facts do not show that the at time threatened to apartment any enter defendant’s to arrest him. Absent condition indi cating that the officerswould enter the the number of officers present apartment outside defendant’s is not relevant to the issue: one officer or ten officers could enter into an to arrest someone. 4 Although majority presence and the dissent state that the may environment, defendant’s tether my have contributed to a coercive *14 give weight surrounding test does not much to the environment police arrest. Because the focus should be on the actions of the police whether the acted with a show of force or threat to invade the home, presence of the tether and defendant’s reasonable belief that stay his tether him any restricted in his does not factor into regarding Rather, entry. decision constructive if the tether were to factor analysis case, into the presence Fourth Amendment of this may actually subjective objective tether expecta reduce defendant’s privacy tion of in his home under the Fourth Amendment. See United (ED 2006). Smith, Supp Mich, States v 457 F 2d 802 The tether allowsthe times, including to monitor his at all movements when he inis improperly apartment, home. If the had entered defendant’s such entry analysis expectation privacy would an necessitate of defendant’s 253 479 MICH
270 Opinion Dissenting Kelly, J. showing that the fact any lacks this case Because defendant’s to enter threatened of force or made a show be need not entry doctrine the constructive reached Thus, I in the result concur in this case. applied majority. by the is whether The issue here (dissenting). J. KELLY, conduct constituted
certain Amend- the Fourth home, violating into defendant’s Constitution, invalidating United States ment of the the evidence arrest, rendering inadmissible later obtained. recognized. widely doctrine is
The constructive where the instant case applicable It is respect and refused to environment created an excited his home. Accord- to leave refusals repeated defendant’s of the Court of judgment I would affirm ingly, sup- court properly hold that the trial Appeals was seized after defendant’s the evidence that pressed arrest. OF REVIEW
THE APPLICABLE STANDARDS
conclusions de novo and
legal
reviews
This Court
hearing for
suppression
fact at a
findings of
trial court’s
308, 313;
Williams,
Mich
error.
clear
(2005).
re
questions are
Constitutional
NW2d 636
Council v
Chiropractic
Michigan
de novo.
viewed
Services, 475
& Ins
Financial
Comm’r
Office of
(2006).
369;
houses, effects, papers against and unreasonable searches seizures, violated, shall not be and no Warrants shall issue, upon probable cause, supported but by Oath or affirmation, particularly describing place to be searched, persons things Const, or [US to be seized. IV] Am
In Michigan,
the police do not generally need a
warrant
to arrest a person when they have probable
cause to
person
believe that the
has committed a felony.
Johnson,
People v
683, 690-691;
431 Mich
431 NW2d
(1988).
764.15(1)
825
MCL
lists the circumstances
under which
officer may effectuate an arrest
However,
without a warrant.2
a warrant
is generally
required
to arrest a
in his or her home.
3
Payton
v New York the United States Supreme
Court held that
the Fourth
prohibits
Amendment
from
making a nonconsensual entry into a sus-
pect’s home
without
warrant
in order to make a
routine felony arrest. Payton,
probable
get
cause to
an arrest warrant.
I will assume that the
had
probable
felony
cause to believe that defendant committed a
and there
fore could have effectuated a lawful arrest without a warrant.
(1980).
573;
1371;
US
100 S Ct
principle
without a warrant are
seizures inside
home
*16
unreasonable.
at 587
445 US
Payton,
presumptively
omitted).
(citation
the line
specifically drew
The Court
that do not violate
between searches and seizures
The line was
and those that do.
Fourth Amendment
to the home:
drawn at the entrance
pri-
protects
Amendment
the individual’s
The Fourth
privacy
vacy
variety
settings. In none
the zone of
in a
of
unambigu-
clearly
than when bounded
more
defined
physical
an
home—a zone
ous
dimensions of
individual’s
specific
in
constitutional
that finds its roots
clear
right
...
people
“The
to be secure in their
terms:
language unequivo-
not
That
houses ... shall
be violated.”
very
cally
proposition
“[at]
[of
core
establishes the
right of
Amendment]
the Fourth
stands the
a man
there be free from unrea-
retreat into his own home and
governmental
[Silverman
intrusion.”
v United
sonable
(1961).]
States,
505, 511;
679;
US
81 S Ct
The constructive is a legal doctrine valid doc- protects trine individual safeguards liberties and Fourth rights. individuals’ Amendment It respects United Supreme Payton, States Court’s decision in which at drew “firm line the entrance to the house.” 445 US Payton, Equally important, at 590. the construc- recognizes tive doctrine that officers cannot do coercive tactics and through authority the abuse of they what cannot do physically: cannot enter *17 someone’s home to effectuate an arrest a without warrant. As noted the by Sixth Circuit Court of Ap- 6 (CA 1985). 890, 9, 784 F2d 893 7 1989). (CA 1444, 10, 872 F2d 1451 8 opportunity A not number courts have had the to discuss the United, See, entry. e.g., Beaudoin, 60, constructive doctrine v F3d States 362 (CA (CA 1, 2004),citing Joyce Tewksbury, 1,1997) 68 112 v Town F3d 19 (noting constitutionality doorway that a there is no answer settled to the (CA arrests), Gori, 44, 52 2,2000) (declining and United States v 230 n 2 F3d questions presented police dwelling, to address the when the surround a bullhorn). lights, flood it with search and order over a evacuation Other courts have indicated that the Fourth Amendment not long physical violated as as the do not cross the threshold of the See, e.g., Carrion, 1120, entrance to the home. United v F2d States 809 (CA 5, 1987) Payton (holding police, 1128 violated when threshold, crossing pointed guns without at and arrested the defen room), Berkowitz, dant when he was still in a hotel and United v States (CA 1991) 1376, 1386 7, (Payton prohibits entry 927 F2d into a home warrant, convey without a not an officer’s use of or her a voice to home). message of arrest from outside Mich 253 479
274 by Dissenting Opinion Kelly, J. the constitu- undermine rule would contrary “[a] peals, v States United Payton.” emphasized precepts tional 1984). (CA 6, 1158, F2d 1116 743 Morgan, inher- doctrine entry the constructive Application to determine analysis case-by-case ently requires a constructive constituted conduct whether the concludes that of this Court majority A entry. constructive constitute a case did not in this conduct noting that at this conclusion entry. It arrives Here, in other cases. as those egregious are not as facts or draw floodlights and bullhorns9 did not use being in fear of weapons place their I that a However, believe majority, unlike the shot.10 may be violated rights Fourth Amendment than egregious less conduct was though even settings. factual that in the most extreme the basis of the be made on The decision should most conduct. The of coerciveness degree would person a reasonable is whether question relevant 11 to leave the house. compelled feel 9 1161, Morgan, 1164. 743 F2d at (CA 2001). 804, 6, Saari, 272 F3d 806-807 United States v (CA 2005) (there Thomas, F3d See United States entry that “a was no indication where there was no constructive officers, by police person, the door confronted with a knock on reasonable either under arrest or otherwise without more that he was would believe (no Sharrar, house”); at 819 reasonable compelled F3d to leave when the free to remain in the house person have believed himself would windows, house, guns pointed machine at surrounded out). occupants ordered the applies agrees doctrine when that the constructive Justice Weaver police engage conduct that would person in coercive is arrested after the However, proposes she compel or her home. reasonable to leave his determining has occurred for whether a a new test *18 theory, a constructive been Under her Fourth Amendment has violated. the police to conduct would lead a reasonable when the occurs Otherwise, step it must his or her home. he or she must outside believe that or to arrest him appear person, would cross the threshold to the the officers v Gillam by Opinion Dissenting Kelly, J. version case, court believed defendant’s the trial In this that, at the time explained Defendant the events. his on house apartment to he had been confined question, knocked on his door. police The on a tether. arrest and was him to come out. it, asked police and the opened He come he could not defendant, replied he that According to that there undisputed It is he was on a tether. because out police the exchange between verbal repeated was a out to come the told defendant in which defendant eventually emerged do Defendant so. and he declined [his] an officer to there was “because apartment the from threat- him] it feel [made about something right [and] he came out what that he Defendant testified ened.” did not leave that he atmosphere,12 exited described as an by that he felt coerced voluntarily, and his the officers. degree may any or of coercive conduct agree use I that the
her. cannot
physically
indicating
they
they stop
-will
cross
long
that
as
short
threats so
test,
station machine
could
Justice Weaver’s
threshold. Under
person’s
barking
dogs
door
bullhorns, floodlights,
outside a
attack
guns,
physically
the threshold
indefinitely.
long they
cross
did not threaten
As
as
entry.
beyond
home,
It seems
be no constructive
person’s
there would
of the
greater protection than that.
argument
affords
Fourth Amendment
that the
my
as
of the situation
majority
characterization
takes issue with
The
be
that
the situation could
atmosphere. Defendant
testified
an excited
majority,
and,
recognized by
atmosphere
as
described as an excited
his version of
events.
trial court believed
majority’s
made no coercive
view that the
I do not find credible
requests
assuming
the officers’
Even
to defendant.
statements
by
persistent
polite,
their
step
dint of
he
outside were
atmo-
with the excited
coercive. That combined
repetition,
became
tether,
defendant was on
police, and the fact that
sphere
created
recognized by majority, the trial
As
enhanced the coercive environment.
was,
event,
in some manner or
stated,
any
[defendant]
I think
“In
court
Therefore, the trial court
another,
step
be arrested.”
outside and
caused to
leaving
apartment.
into
coerced defendant
explicitly found that the
environment was not
finding
a coercive
that there was
trial court’s
testimony
erroneous,
weight
given
quantity
clearly
Court,
court,
majority
in the best
of this
not the
supported it. The trial
findings of fact.
credibility
and make
judge
the witnesses
position
*19
Moreover, before the arrived at defendant’s they door, knew that he was on house arrest with a they him, tether. When called out to defendant told them he that could not leave his because he suppression hearing, was on a tether. At the the trial testimony court believed defendant’s and noted that [sic] defendant knew the “meets and bounds” of the system. questioned by Moreover, tether when the tried possible court, an officer admitted that it was up defendant’s tether had been set so that he could not apartment. leave the
The fact that defendant was on a tether further
supports
finding
there
awas
constructive
entry. Defendant was under a court order to
remain
yet
repeatedly
his
officers
demanded that he
situation,
leave it. Under this
reasonable
would have felt coerced to leave his
majority
or her residence.13The
contends that the facts
of this case are similar to those in United States v
Michigan
Appeals
The
Court
has addressed what constitutes
setting.
coercive conduct
a traditional knock-and-talk
In
Bolduc,
430, 441;
App
(2004),
263 Mich
those misses a crucial Boykin commentary. Specifically, the Sixth Circuit rec- ognized that coercive statements could alone invoke the doctrine. recognition This necessar- ily belies majority’s only inference that overt physi- acts, cal using such as bullhorn or ma- brandishing chine guns, could constitute a constructive entry. noted, also,
It should be majority opinion establishing risks bad public policy. It discourages people from opening their door to officers. Essen- tially, signals it to the public acceptable that it is for the ignore person’s repeated refusals to leave his Hence, or her and sanctuary. home people might con- clude that should not open their doors when they see on other side. This Court should encourage, discourage, the public to assist the in their investigations.15 lawful
CONCLUSION For the I discussed, reasons have I would affirm the judgment of Appeals the Court of and hold that the trial *21 properly court excluded the evidence seized. A construc- tive occurred when the police created excited majority provide claims that the tether would more resolve to person wearing However, above, it to remain inside. as noted initially display did his resolve to remain respect apparent and the officers refused to it. It from the fact prior tether that defendant had contact with the and the court system. Presumably, judge encouraged who ordered the tether him to cooperate majority’s opinion with the while on the tether. The encourages ongoing relationship both those who do and do not have an system ignore police requests. with the court VGlLLAM PEOPLE Dissenting Opinion J. Kelly, on a defendant who and coerced environment him. in order to arrest leaving into tether KELLY,J. CAVANAGH,J., with concurred