PEOPLE OF MI V EDDIE LEE BROWN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 15, 2009
Plaintiff-Appellee,
v
No. 286716
Wayne Circuit Court
LC No. 07-009589-FH
EDDIE LEE BROWN,
Defendant-Appellant.
Before: Servitto, P.J., and Fort Hood and Stephens, JJ.
PER CURIAM.
Following a conditional plea pursuant to MCR 6.201(C)(2), defendant was convicted of
felony-firearm, MCL 750.227b(1). He was sentenced to two years’ imprisonment. Defendant
appeals by order of the Michigan Supreme Court as if on leave granted. We reverse and remand.
On April 19, 2007, at approximately 2:45 a.m., Officers Ronald Hopp, James McDonald,
and LePerire,1 and Sergeant Mike Jackson of the Detroit Police Department were parked in a
police vehicle a few blocks from defendant’s home, when they heard several gunshots. They
drove in the direction of the gunshots, and heard a single shot come from behind defendant’s
residence. The officers parked their vehicle and heard several more shots as they positioned
themselves around the house. Officer Hopp positioned himself near the back of the home where
he saw defendant standing inside a doorway of a second-story balcony on the backside of the
house, holding a rifle with a strap. He radioed this information to the other officers. Shortly
thereafter, Sergeant Jackson, along with other officers from a different police department,
entered the residence and detained defendant in the front room of his second floor apartment.
They conducted a sweep of the apartment, and “secured” it to make sure no other persons were
inside. Officer McDonald then entered the apartment and searched for the gun with the other
officers. Officer Hopp subsequently entered the home and identified defendant; he also briefly
searched for the gun in the back bedroom. Officer McDonald eventually found the gun in the
attic, which he accessed by propping a bedpost against a wall in a back bedroom closet and
climbing it like a ladder. He found the gun, loaded, in the front of the attic above the entrance on
1
This officer’s first name was not provided in the preliminary examination transcript or the
lower court file.
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the second floor, in between a window and a blanket covering the window. Officer Hopp
identified it as the gun he saw in defendant’s possession earlier. The officers did not obtain a
search warrant at any point.
Defendant filed a motion to suppress the evidence as obtained in violation of his Fourth
Amendment protection against illegal searches and seizures. The trial court denied defendant’s
motion, reasoning that exigent circumstances allowed the officers to enter defendant’s apartment,
and that Officer Hopp’s observations of defendant with a gun provided sufficient probable cause
for the search under the plain view doctrine. Further, it affirmed the search because it was
limited to logical places where a gun could be found.
On appeal from a motion to suppress, the findings of fact by the trial court are reviewed
for clear error, People v Stevens, 460 Mich 626, 650-651; 597 NW2d 53 (1999), and issues of
law are reviewed de novo, People v Wilson, 257 Mich App 337, 381; 668 NW2d 371 (2003),
vacated in part 469 Mich 1018 (2004). Constitutional issues are also reviewed de novo. People
v Sadows, 283 Mich App 65, 67; 768 NW2d 93 (2009). Under both the United States
Constitution and the analogous portion of the Michigan Constitution, searches and seizures
without a warrant are per se unreasonable, unless any of the specific and well-delineated
exceptions apply. People v Champion, 452 Mich 92, 97-98; 549 NW2d 849 (1996). The burden
is on the prosecution to prove one of the exceptions. People v Galloway, 259 Mich App 634,
638; 675 NW2d 883 (2003).
With regards to the exigent circumstances exception, the Michigan Supreme Court has
held:
[P]olice may enter a dwelling without a warrant if the officers possess probable
cause to believe that a crime was recently committed on the premises, and
probable cause to believe that the premises contain evidence of perpetrators. The
police must further establish the existence of an actual emergency on the basis of
specific and objective facts indicating that immediate action is necessary to (1)
prevent the imminent destruction of evidence, (2) protect the police officers or
others, or (3) prevent the escape of a suspect. If the police discover evidence of a
crime following the entry without a warrant, that evidence may be admissible. [In
Re Forfeiture of $176,598, 443 Mich 261, 271; 505 NW2d 201 (1993) (emphasis
added).]
Here, the officers heard several gunshots coming from the neighborhood of defendant’s
home. They heard another shot from the backside of defendant’s home. As they left their
vehicle and approached the house, they heard several more gunshots, and one officer testified, “It
was like, almost like we was under fire. We thought we were under fire. That’s how close it
was[.]” It was at this time Officer Hopp saw defendant with a gun in the doorway of the second
floor balcony. Probable causes exists when fact, circumstance or information is such that it
would create an honest belief in the mind of a reasonably prudent person that criminal activity is
afoot, or contraband is present. People v Anthony, 120 Mich App 207, 211; 327 NW2d 441
(1982). There is no question probable cause existed under this standard.
According to these facts, the officers also had reason to fear for their own safety, thereby
satisfying one of the exigencies. “[T]he validity of an entry for a protective search without a
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warrant depends on the reasonableness of the response, as perceived by police.” People v
Cartwright, 454 Mich 550, 559; 563 NW2d 208 (1997). Similar to the Supreme Court’s ruling
in Cartwright, it would have been tactically unsound for these officers to sit and wait for a
warrant in light of the gunshots and knowledge that defendant was armed. For all they knew,
they were under attack. Based on this perception, there were sufficient exigent circumstances for
the officers to enter defendant’s home without a warrant, and to detain him for purposes of a
protective sweep. Cartwright, supra at 560; People v Beuschlein, 245 Mich App 744, 757; 630
NW2d 921 (2001).
Despite the exigency that allowed them inside, the officers were still bound by the Fourth
Amendment and guidelines regarding protective sweeps. A protective sweep must be “quick and
limited, and conducted for the sole purpose of ensuring the safety of the police officers and other
persons.” Cartwright, supra at 557. It is “not a full search of the premises, but may extend only
to a cursory inspection of those spaces where a person may be found [and] last no longer than is
necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to
complete the arrest and depart the premises.” Maryland v Buie, 494 US 325, 335-336; 110 S Ct
1093; 108 L Ed 2d 276 (1990). Once the protective sweep is over, and the exigency is
eliminated, the officers cannot proceed to search a home without a warrant. Vale v Louisiana,
399 US 30, 34-36; 90 S Ct 1969; 26 L Ed 2d 409 (1970).
As indicated above, the officers entered defendant’s home and “secured” it with a
protective sweep. Officer McDonald testified: “[T]he house was secure, they went in, they did a
sweep. Whoever was in the house was detained. And that’s when I came in after. A sweep was
done. He was the only person in there. I was advised that the house was secure, I can come in.
Which means there was no possibility of anybody else getting out because there was nobody else
there but the Defendant.” (Questions from defense counsel omitted.) With the house secure, they
started looking for the gun. Similarly, Officer Hopp testified: “I don’t remember if they had him
seized or not. I went inside they said they were talking to him. I went in there and I.D.’d him as
the person. I looked in a couple of rooms and then I left the location and went outside. I looked
in a back bedroom and that’s about it. The back bedroom and then I walked outside.”
(Questions from defense counsel omitted.) According to this testimony, the officers appeared
certain the house was secure before their motivations changed to a warrantless search for the
gun. This was unreasonable, and the officers should have obtained a search warrant first. Vale,
supra at 34-36. Cf People v Olajos, 397 Mich 629; 246 NW2d 828 (1976). Where the Court
upheld a warrantless search for a weapon in the defendant’s home even though he had already
been drawn out of the home and arrested outside. In that case, the police were uncertain as to
whether another weapon and potential shooter remained inside. Id. at 636. Contrastingly,
nothing in this case indicates any confusion or uncertainty on the part of the Detroit Officers.
They were certain the premise was secure and defendant was the only person present.
With regards to the plain view exception, Champion, supra at 104, provides “that if
police are lawfully in a position from which they view an object, if its incriminating character is
immediately apparent, and if the officers have a lawful right of access to the object, they may
seize it without a warrant.” The item can then be introduced as evidence. People v McDonald,
13 Mich App 226, 234; 163 NW2d 796 (1968). The incriminating nature of an object is
immediately apparent if probable cause to seize the item exists without search. Champion, supra
at 102-103.
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The criminal nature of the gun was readily apparent when Officer Hopp saw it in
defendant’s possession. Because he was responding to an emergency, he was in a lawful
position at the time he saw the gun. Clearly the first two elements of plain view were present,
and if he could have obtained the gun at that time, the seizure would have been lawful. Instead,
when the police entered defendant’s home, the gun was not present, or otherwise within plain
view. As indicated above, it was found one floor above the room where defendant was detained,
hidden between a window and a blanket covering the window. Thus, after the officers entered
defendant’ home, neither of the first two elements of plain view were present. The trial court
recognized this, but reasoned that the earlier observations by Officer Hopp were still at play, and
provided sufficient probable cause to justify the search for the gun. This reasoning is in direct
conflict with the established case law concerning plain view, which provides that “no amount of
probable cause can justify warrantless search or seizure absent ‘exigent circumstances’” or some
other exception to the warrant requirement. People v Hopko, 79 Mich App 611, 621; 262 NW2d
877 (1977), quoting Coolidge v New Hampshire, 403 US 443, 468; 91 S Ct 2022; 29 L Ed 2d
564 (1971). Plain view “is exclusively a seizure rationale,” and, therefore, alone, is never
enough to justify warrantless search. Champion, supra at 101. Absent exigent circumstances or
some other exception, no amount of probable cause can justify a warrantless search for an
immediately apparent criminal item. Hopko, supra at 62.
Although Officer Hopp’s observations were made at a time when exigent circumstances
existed, those observations cannot be suspended in mid air and applied to a later time when
exigencies were not present, and when the observations made at the time of defendant’s arrest
did not establish probable cause to seize the gun. Furthermore, Officer Hopp’s observations,
without exigent circumstances, did not justify the warrantless search. Therefore, the officers
were not in a lawful position when they seized defendant’s gun and the third necessary element
for the plain view exception was never met. Champion, supra at 104. As such, the gun was
improperly seized and the trial court erred when it denied defendant’s motion to suppress.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Karen M. Fort Hood
/s/ Cynthia Diane Stephens
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