PEOPLE v HAMMERLUND Docket No. 156901. Argued on application for leave to appeal A pril 24, 2019. Decided July 23, 2019. Jennifer M. Hammerlund was charged in the Kent Circuit Court w ith operating while intoxicated, third offense, MCL 257.625; and failing to report an accident resulting in damage to fixtures, MCL 257.621, for her invo lvement in a single-vehicle accident that she did not report to the police. Her abandoned vehicle was discovered by Officer Er ich Staman of the Wyoming Police Department, who searched the vehicle, found that it was registe red to defendant, and went to her home. According to Staman, he stood on her porch while she rem ained inside, approximately 15 to 20 feet away from the front door, and they had a short conve rsation during which defendant admitted to driving the car that caused the damage. When Stama n asked defendant to produce her identification, she passed a card to him through a third party in the home. After verifying her information, Staman offered the identification card back to def endant. According to Staman, when defendant came to the door and reached out to take the card, he grabbed her by the arm and attempted to take her into cus tody for having failed to report her accident. Staman stated that when defendant pulled away, the moment um took him inside the home, w here he handcuffed defendant and completed the arrest before taking her to jail. Breath tes ts administered at the jail indicated that defendant had a blood alcohol content over the legal limit . Defendant filed a pretrial motion to suppress evidence and dismiss the charges, arguing that Offi cer Staman had violated her Fourth Amendment rights by arresting her inside her home without a war rant and that the evidence gathered following the arrest was subject to the exclusionary r ule. The trial court, Paul J. Sullivan, J., denied the motion, ruling that the arrest was constitutiona lly valid because defendant had voluntarily reached out of her open doorway, which was a public place for Fourth Amendment purposes under United States v Santana , 427 US 38 (1976). After a jury trial, defendant was convicted as charged, and she was sentenced to five years’ prob ation and four months in jail for having violated MCL 257.625 and to a concurrent term of 60 days in jail for having violated MCL 257.621. Defendant appealed, challenging the trial court’s den ial of her motion to suppress evidence. The Court of Appeals, M URRAY , P.J., and S AWYER and M ARKEY , JJ., affirmed, holding that the arrest was constitutional under Santana and that the trial court had not erred by denying defendant’s motion. People v Hammerlund , unpublished per curiam opinion of the Court of Appeals, issued October 17, 2017 (Docket No. 333827). Defendan t sought leave to appeal in the Supreme Court, which ordered and heard oral argument on whether to grant the application or take other action. 501 Mich 1086 (2018). Michigan Supreme Court Lansing, Michigan 

# Syllabus Chief Justice: Bridget M. McCormack

C hief Justice Pro Tem:

David F. Viviano Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh This syllabus constitutes no part of the opinion of the Court b ut has been prepared by the Reporter of Decisi ons for the convenience of th e reader. Reporter of Decisions: Kathryn L. LoomisIn an opinion by Justice C AVANAGH , joined by Chief Justice M C C ORMACK and Justices V IVIANO , B ERNSTEIN , and C LEMENT , the Supreme Court, in lieu o f granting leave to appeal, held : Defendant was not subject to pub lic arrest because she remaine d inside her home, where she maintained her reasonable e xpectation of privacy. Defendan t’s act of reachin g out to retrieve her identification card did not expose her to the public as if she had been standing completely outside her house under Santana , and the circumstances were insufficient to justify the hot-pu rsuit exception to the warrant requirement. Because the arrest was c ompleted across the Fourth Amendment’s firm line at the entrance of the home, it was presu mptively unreasonable, and the prosecution failed to overcome this presumption. The Court of Appeals judgment was reversed and the case was remanded to the trial court to consider whethe r evidence should be suppressed under the exclusionary rule. 1. The Fourth Amendment of the United States Constitution pro vides that the right of the people to be secure in their persons, houses, papers, and effec ts against unreasonable searches and seizures shall not be violated, and no warrants shall issue, bu t upon probable cause, supported by oath or affirmation, and particularly describing the place to b e searched, and the persons or things to be seized. In order to be reasonable, an arrest must be jus tified by probable cause to believe that an offense has been or is being committed. Even when base d on probable cause, however, a warrantless search or seizure inside a suspect’s home is presum ptively unreasonable, absent exigent circumstances. Warrantless arrests that take place in public upon probable cause do not violate the Fourth Amendment. 2. The officer had probable ca use to arrest defendant for fai ling to report an accident that caused damage to fixtures under MCL 257.621(a), which is a misd emeanor. While probable cause alone may justify a warrantless public arrest, the same is not true when it comes to arresting a suspect in the suspect’s home. Under Payton v New York , 445 US 573 (1980), an officer must obtain a warrant or identify exigent circumstances that excuse the warrant requirement before entering a home to make an arrest. In this case, there was no dispute that defendant’s arrest was completed inside her home. The lower courts erred by relying o n Santana to conclude that defendant’s Fourth Amendment rights remained intact because—unl ike the defendant in Santana , who was standing in her open doorway when officers arrived—defe ndant was not “exposed to public view, speech, hearing, and touch, as if she had been sta nding completely outside her house.” Defendant was never in a public place, and she possessed a reas onable expectation of privacy inside her home that she maint ained throughout the encounter. It was unnecessary to determine how far defendant extended her arm or hand over the threshold b ecause a Fourth Amendment analysis does not focus on such a rbitrary calculations; the foc us remains on determining whether a person sought to preserve his or her reasonable expectation o f privacy. Defendant did not surrender her reasonable expectation of privacy when some porti on of her hand or arm crossed the threshold to retrieve her property. Instead, her actions manif ested an intent to stay inside, and Staman was aware of that intent. Defendant’s expectation of pr ivacy within her home was reasonable, and her action of reaching out over the threshold a nd retrieving her identification did not relinquish that reas onable expectation. 3. When officers have probable cause and exigent circumstance s exist, it is reasonable under the Fourth Amendment for officers to enter a home without a warrant. Exigentcircumstances exist when an emergency leaves law enforcement wi th insufficient time to obtain a warrant. While hot pursuit of a fleeing felon is one recognize d example of exigent circumstances, there was a not a legit imate hot pursuit in this case. It is u nclear whether an offi cer with probable cause to arrest a suspect for a misdemeanor may rely on the hot -pursuit exception to make a warrantless home entry, and there was no suggestion of any emer gency that would have entitled the police to enter defendant ’s home throughout the conversatio n up to the point when defendant reached out to retrieve her identification. Accordingly, the s eizure in this case, which occurred beyond the “firm line at the entra nce of the house,” was prohib ited under Payton because it was accomplished without a warrant, without consent, and without an y exigent circumstances. Court of Appeals judgment revers ed; case remanded for further proceedings.
Justice Z AHRA , joined by Justice M ARKMAN , dissenting, would have held that Santana was on point, applicable, and not mean ingfully distinguishable from the facts presented in this case, given its holding th at the doorway of one ’s residence is consid ered a public space for purposes of Fourth Amendment analyses. He stated that under Santana , when the arrest was initiated after some part of defendant’s person had extended beyond the constit utionally protected bounds of her home, defendant was “as exposed to public view, speech, hearing , and touch as if she had been standing completely outside her house.” He also stated that be cause the arrest was supported by probable cause, initiated in a public place in accordance with Santana , and properly completed inside defendant’s home under the hot-pursuit exception to the warrant requirement, he would have affirmed defendant’s convic tions. He further reasoned tha t if the warrantless entry into defendant’s home and subsequent arrest were improper, the estab lished facts were sufficient to hold that exclusion of the evide nce obtained after the arrest w ould not be appropriate under the United States Supreme Court’s decision in New York v Harris , 495 US 14 (1990). Thus, he would have decided this issue in the name of judicial efficiency.

©2019 State of MichiganFILED July 23, 2019

S T A T E O F M I C H I G A N
SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v No. 156901 JENNIFER MARIE HAMMERLUND, Defendant-Appellant.

BEFORE THE ENTIRE BENCH
C AVANAGH , J. In this case we must decide whether defendant’s constitutional right to be free from unreasonable seizures was violat ed when a police officer entere d her home to complete her arrest for a misdemeanor offense. The Court of Appeals conclud ed that defendant exposed herself to public arrest when sh e reached out her doorway to re trieve her identification and that when she pulled her arm back into her home the officer’s e ntry was lawful as a “hot pursuit.” We disagree. Defendant did not surrender her Fourth Amendment rights when she interacted with law enforcem ent at her doorway because she consistently maintained Michigan Supreme Court Lansing, Michigan 

# OPINION Chief Justice: Bridget M. M cCormack

Chief Justice Pro Tem:

David F. Viviano Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh2 her reasonable expectation of pri vacy throughout the encounter, and further, the entry was not justified under the “hot pursuit” exception to the warrant requirement. The warrantless arrest was unreasonable under Payton v New York , 445 US 573; 100 S Ct 1371; 63 L Ed 2d 639 (1980). We reverse the Court of Appeals judgment and re mand this case to the trial court for further proceedings not inconsistent with this opinio n.

I. BACKGROUND Defendant, Jennifer Marie Hammerl und, was involved in a single- vehicle accident in the early morning hours of September 30, 2015, on a highway exit ramp in Wyoming, Michigan. According to defenda nt, another driver cut her off, causing her to overcorrect and lose control of her car. Her vehicle scraped a cement barr ier and left a dent on a metal guardrail. Defendant suffered on ly minor injuries; however, th e car was no longer drivable. She attempted to call her insura nce company and then used a rid eshare service to get home. She did not report the accident to police. Soon after, Officer Erich Staman of the Wyoming Police Departme nt was dispatched to the scene of a re ported abandoned vehicle on the shoulder of the highway off-ramp. After observing the dam age to the vehicle, as well a s the guardrail and cement barrier, Officer Staman requested a tow truck and conducted an inventory search. He discovered that the vehicle was r egistered to defendant and tha t it contained paperwork bearing defendant’s name, so he requested that officers from th e Kentwood Police Department go to defendant’s hom e to perform a welfare check. In the meantime, according to def endant, she returned home, fou nd that she was “really shaken up,” and drank so me alcohol. She then went into her room and went to bed.3 Only a few minutes later, the Ke ntwood officers arrived and tol d her roommate that they wished to speak with defendant . Defendant in itially declined t o leave her room; however, after her roommate spoke to the officers and reported back to d efendant that the police would take her into custody and arrest the roommate for harbori ng a fugitive if she did not appear, defendant came to the door. After that, Officer Staman arrived at the home to “make contact” with defendant. Officer Staman testified that when he arrived at defendant’s ho me, he stood on her porch while she remained inside, approximately 15 to 20 feet aw ay from the front door. He acknowledged that it “didn’t appear that [defendant] wanted to come to the door . . . .” And, when asked whether defendant “made it pretty clear that sh e wasn’t coming out of the home,” he agreed, stating, “ It seemed that she wasn’t going to come out.” During their short conversation, defendant a dmitted to driving the car that caused the damage. When he asked defendant to produce he r identification she was “reluc tant” to give it to him so she passed it to him through a third party in the home. Office r Staman testified that defendant told him that she “tho ught [Officer Staman] might be trying to coax her out of the house.” After verifying her information, Officer Staman offered the ide ntification card back to defendant. He explained: And then I had to give the I.D. back to her, so I made sure I gave it back to Ms. Hammerlund. In doing that she came to the door whe re I was standing and reached out to get the I.D. as I gave it back to h er, at which point I grabbed her by the arm an d attempted to take her into c ustody . . . [f]or the hit and run that s he just admitted to.4 He said that when defendant pulle d away he grabbed her again an d “the momentum” took him inside the home two to three steps where he handcuffed defe ndant and completed the

arrest. Following the arrest, Officer Staman placed defendant into the back of his patrol car. After she wa s advised of and waived her Miranda 1 rights, defendant provided further details about the crash, which she described to the officer as possibly a “road rage situation.” Officer Staman detected a smell of intoxicants tha t was “moderate at best” and asked defendant if alcohol played a role in the crash. She opi ned that it had not, but did acknowledge drinking alcohol earlier in the night after finishi ng her shift as a bartender and later indicated that she thought her blood alcohol level ma y have been over the legal limit. When asked if she had any alcohol to drink after the accident, defendant replied, “Absolutely not.” Once transpor ted to the county jail, defenda nt was given two successive breath tests, which indicated a blood alcohol content over the legal limit at .22 and .21, respectively. Consequently, defe ndant was charged with operati ng while intoxicated (OWI), third offense, MCL 257.625, and failing to report an acc ident resulting in damage to fixtures, MCL 257.621. Defendant filed a pretrial moti on to suppress evidence and dism iss the charges. In the motion, she argued that Officer Staman had violated her Fou rth Amendment rights by arresting her inside her home without a warrant and that all th e evidence gathered following that arrest was subject to the exclusionary rule. The trial co urt denied the suppression motion, concluding that the arre st was constitutionally valid p ursuant to United States v

1 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).5 Santana , 427 US 38; 96 S Ct 2406; 49 L Ed 2d 300 (1976). Specifically , it found that defendant was “in the middle of a consensual discussion with Of ficer Staman” when she “voluntarily approached him” and “voluntarily reached out of he r door.” Therefore, the court concluded that Officer Stam an “was legitimately in that a rea and it did not violate the constitution for him to effect uate an arrest by grabbing he r arm when she reached out of her doorway.” The fact that the officer stepped inside defe ndant’s home to complete the arrest did not change the result, according to the trial court, because the officer was “clearly in pursuit for the arrest at that point . . . .” The case proceeded to trial. Def endant’s theory of the case wa s that she became intoxicated only after the accident. However, she acknowledged that she did not tell any of the officers that she drank when she got home. Defendant’s statements made to Officer Staman in his patrol car, as well as her blood-alcohol-content test results, were admitted at trial. After a jury trial, defendant was convicted as charged, and she was sentenced to five years’ probation and four months in jail for violating MCL 257. 625 and to a concurrent term of 60 days in jail fo r violating MCL 257.621. Defendant appealed, continuing to challenge the trial court’s d enial of her motion to suppress. The Court of Appeals, like the trial court, concl uded that the arrest was constitutional under Santana , 427 US at 42, and that the trial court had not erred by denyi ng defendant’s motion. People v Hammerlund , unpublished per curiam opinion of the Court of Appeals, issued October 17, 2017 (Docket No. 333827). Defen dant sought leave to appeal in this Court, and we orde red oral argument on the appli cation. 2

2 In our order, we directed the parties to address “whether it i s constitutionally permissible6 II. STANDARD OF REVIEW
We review a trial court’s findi ngs of fact at a suppression hea ring for clear error. People v Williams , 472 Mich 308, 313; 696 NW2d 636 (2005). We examine the facts as they were presented to the trial court at the time of the suppr ession hearing, not as supplemented by evidence presented at trial. People v Kaigler , 368 Mich 281, 288; 118 NW2d 406 (1962). Our review of the trial court’s application o f Fourth Amendment principles, however, is de novo. People v Slaughter , 489 Mich 302, 310; 803 NW2d 171 (2011).
III. LEGAL BACKGROUND
The Fourth Amendment of the Uni ted States Cons titution provides : The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly des cribing the place to be search ed, and the persons or things to be se ized. [US Const, Am IV.] [3]

for a police officer to compel, coerce, or otherwise entice a p erson located in his or her home to enter a public place to p erform a warrantless arrest.” People v Hammerlund , 501 Mich 1086, 1087 (2018). After r eceiving the benefit of briefin g and oral argument, we find it improvident to consider this issue because the facts of this case do not lead to the conclusion that defendant subject ed herself to a public arrest. That our order directed the parties to address the issue of constructive entry—which the di ssent agrees need not be decided under the facts of this case—does not mean that we are imprudently or incorrectly deciding the very legal issues decided by the trial court and t he Court of Appeals and briefed by the parties on appeal to this Court.

3 The Michigan Constitution, Const 1963, art 1, § 11, provides c oextensive protection to that of its federal counterpart. See People v Mead , 503 Mich ___; ___ NW2d ___ (2019) (Docket No. 156376); slip op at 5.7 The touchstone of the Fourth Amendment is reasonableness. Brigham City, Utah v Stuart , 547 US 398, 403; 126 S Ct 1943; 1 64 L Ed 2d 650 (2006); see als o People v Mead , 503 Mich ___; ___ NW2d ___ (2019) (Docket No. 156376); slip op at 5 (“The Fourth Amendment demands nothing more o r less than reasonableness.”). In order to be reasonable, an arrest must be j ustified by probable cause. Dunaway v New York , 442 US 200, 208; 99 S Ct 2248; 60 L Ed 2d 824 (1979). “Probable cause to arrest exists where the facts and circumstances within an officer’s knowledge and of wh ich he has reasonably trustworthy information are suffi cient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” People v Champion , 452 Mich 92, 115; 549 NW2d 849 (1996). Even when based on probable cause, however, a warrantless searc h or seizure inside a suspect’s home is presu mptively unreasonable. Payton , 445 US at 586. In fact, the United States Supreme Court has recognized that “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is direc ted.” Id . at 585 (quotation marks and citations omitted). T o protect against unreasonable intrusions into the home, a warrant is required to “interpose the magistrate’s determinatio n of probable cause between the zealous officer and the citizen.” Id . at 602. In other words, “the Fourth Amendment has drawn a firm line at the entrance to the house,” which “[a] bsent exigent circumstances . . . may not be re asonably crossed without a war rant.” Id

. at 590; see also
Kirk v Louisiana , 536 US 635, 638; 122 S Ct 2458; 153 L Ed 2d 599 (2002) (“As Payton makes plain, police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home.”). The burden of overcoming8 the presumption of unreasonablen ess attached to a warrantless e ntry rests on the prosecution. People v Oliver , 417 Mich 366, 380; 338 NW2d 167 (1983). Warrantless arrests that take place in public upon probable ca use do not violate the Fourth Amendment. United States v Watson , 423 US 411, 423-424; 96 S Ct 820; 46 L Ed 2d 598 (1976). In Michigan, th is standard applies when probabl e cause exists for a misdemeanor. See People v Hamilton , 465 Mich 526, 533; 638 NW2d 92 (2002) (“[P]robable cause to arrest for a felony is not required; rather, probable cause that a crime (felony or misdemeanor) has been committed is the constitutiona l requirement for an arrest.”), overruled in part on other grounds by Bright v Ailshie , 465 Mich 770 (2002).
IV. ANALYSIS As noted, the Fourth Amendment permits an arrest without a warr ant in a public place as long as the police officer making the arrest possesses sufficient probable cause.
Watson , 423 US at 423. The officer in this case had probable cause t o arrest defendant for failing to report an accident that caused damage to fixtures. MCL 257.621(a). He personally observed damage to the guardrail and cement barrier near defendant’s abandoned vehicle. Further, de fendant admitted to him that she was driving the car that caused the damage and that she did not report the accident to l aw enforcement. This9 information was more than adequate to provide the officer with probable cause to believe that the misdemeanor offe nse had been committed. 4 Defendant does not argue otherwise. 5

4 We take this opportunity to note that failure to report an acc ident resulting in damage to fixtures is a 90-day misdemeanor. Under Michigan law, therefor e, Officer Staman was not statutorily authorized to arrest defendant. See MCL 764.15(1)( d) (A peace officer may make a warrantless arrest where “[t]he peace officer has reason able cause to believe a misdemeanor punishable by imprisonment for more than 92 days or a felony has been committed and reasonable cause to believe the person committed it.”). However, a statutory violation and a cons titutional violation are not one and the same. See Hamilton , 465 Mich at 534 (“A number of decisions establish that statutor y violations do not render police actions unconstitutional.”).

5 The dissent concludes that Officer Staman also possessed proba ble cause to arrest defendant for OWI-3d because he observed that defendant was “le aning against a wall as if to maintain balance, ” “that her speech w as slurred prior to transporting her to the police station,” and that she had previous OWI convictions. There are multiple problems with this conclusion. First, that defendant was slurring her speech and unstable on her feet could possibly provide probable cause to believe that she was under t he influence when the crash occurred; however, considering th e fact that defendant was in a n accident in which her head collided with a steering wh eel and the intervening time be tween the accident and the police contact, without more concrete facts it is a stretch to conclude that any unsteadiness or warped speech stemmed from into xication that was present at the time she operated the vehicle. Second, the record is vague about when exactly Office r Staman noticed defendant slurring her speech, and it is unclear whether it was while she remained inside her home or only after she was arrested. Third, relatedly, there is nothin g in the record to indicate that Officer Staman was aware of defendant’s prior OWI convictions b efore he made the arrest. The dissent speculates that Office r Staman “may well have been aware of” the prior convictions, but cites nothing in the record that supports such a statement other than the fact that OWI convictions are reported to the secretary of stat e under MCL 257.625(21)(a). Further, what Officer Staman observed or discovered after the arrest is not relevant to whether the officer had probable cause to arrest in the firs t place. Probable cause to arrest exists where the facts and circumstances known to the officer would warrant a person of reasonable caution to believe that the offense was committed by the suspect. Champion , 452 Mich at 115. The dissent’s reliance on Devenpeck v Alford , 543 US 146; 125 S Ct 588; 160 L Ed 2d 537 (2004), is misplaced. Devenpeck , as the dissent acknowledges, states that an officer’s “subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” Id . at 153. As we have discussed,10 While probable cause alone may justify a warrantless public arr est, the same is not true when it comes to arresting a suspect in her home. Under Payton , law enforcement must obtain a warrant or identify exigent circumstances that ex cuse the warrant requirement before entering a home to make an arrest. Payton , 445 US at 590. In this case, there is no dispute that Officer Staman completed defendant’s a rrest inside her home. Instead of viewing this as a straightforward Payton violation, the lower courts relied on
Santana to find that defendant’s Fourth Amendment rights remained inta ct because of her own actions before the arrest.
In Santana , undercover officers who had probable cause to believe the def endant had just been involved in an illegal purchase of heroin drove t o the defendant’s house and saw her standing in the doorwa y holding a brown paper bag. Santana , 427 US at 40. According to one officer, the defendant was “standing directly in the doorway—one step forward would have put her outsi de, one step backward would hav e put her in the vestibule of her residence.” Id . at n 1. The officers pulled up within 15 feet of the defenda nt and got out of the vehicle while shouting “police” and displaying their identification. Id . at 40. The defendant retreated into her home, and the officers followe d her inside and arrested her, discovering drugs in the b ag and marked money on her perso n. Id . at 40-41. Before trial, the defendant successfully moved to suppress the evidenc e after the trial court ruled

the facts that were known to Officer Staman at the time of the arrest were not sufficient to establish probable cause for OWI or any other identified felony . The dissent’s position would allow the police to retroactively manufacture probable ca use where none existed at the time the arrest was made. M ost important, however, is that even if we were to conclude that the officer possessed probable cause to arrest defendant f or OWI, it would not render this a constitutional arrest becau se there was no legitimate ho t pursuit.11 that a warrant was necessary to enter her home. Id . The United States Supreme Court reversed, concluding that (1) the arrest began in a public plac e, and (2) the police were in lawful hot pursuit when they ente red the defendant’s home becau se there was a realistic expectation that she would destroy the evidence. Id . at 43. Therefore, the arrest was constitutional because “a suspect m ay not defeat an arrest whic h has been set in motion in a public place . . . by the expedien t of escaping to a private place.” Id

. A. PUBLIC ARREST In our view, Santana is distinguishable from the inst ant case. Unlik e the defendan t in Santana , in this case defendant was not “exposed to public view, speec h, hearing, and touch, as if she had been standi ng completely outside her house .” Id . at 42. Defendant was never in a public place and possessed a reasonable expectat ion of privacy inside her home that she maintained through out the encounter. The lower c ourts erred by holding otherwise. Initially, we do not agree with the Court of Appeals’ conclusio n that defendant “went further” than the Santana defendant to expose herself to the public by approaching the doorway and “extending her arm beyond the threshold” to ret rieve her identification.
Hammerlund , unpub op at 5. The Santana defendant stood squarely in the middle of her doorway. Here, the circuit cour t found only that defendant “re ached out of her door” to retrieve her property. According to the record, all that breac hed the threshold was some portion of defendant’s arm or hand. 6

6 Testimony concerning how far defendant reached out or how much —if any—of her body was exposed to the public is ambiguous at best. When asked if he went inside to grab her12 But the fact that some portion of defendant’s arm or hand cros sed the threshold does not tell us the constitutional significance of this fact. Shou ld we consider her to be in public if her whole arm was outside the threshold? What if it was onl y her wrist or a couple of her fingers? Fortunately, an attempt to determine how far defe ndant extended her arm or hand over the threshold and what that might mean is an unnecess ary exercise. 7 Our Fourth Amendment analysis does not focus on such arbitrary calculation s; our focus remains on determining whether a person s ought to preserve her constitutio nally protected reasonable expectation of privacy. See Katz v United States , 389 US 347, 351; 88 S Ct 507; 19 L Ed 2d 576 (1967). It is beyond clear that defe ndant had a reas onable constitutio nal expectation of privacy within her home. Payton , 445 US at 587 (“Freedom fro m intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment.”) (quotation marks and citation om itted). Answering a knock at t he door or speaking with

arm, Officer Staman replied, “I stood on the outside of the por ch when I initially grabbed it, and she had pulled away, which caused me to have to grab itagain . . . .” On crossexamination, he stated: “I reached out to give her the I.D., an d she reached out to grab it from me. That’s when I grabbed ahold of her wrist.” When aske d where the “grab” took place, Officer Staman said, “I waited until her hand reached ou t to mine, so I didn’t reach in to give it to her, I just held it out and she reached out to grab it from me.” He testified that he did not think his hand “was ever inside the house . . . .” While the officer’s testimony does not illuminate how far defendant r eached out to retrieve her identification, we cannot say that the trial court’s finding that defendant “re ached out of her door” was clearly erroneous. People v Custer , 465 Mich 319, 325; 630 NW2d 870 (2001).

7 See Sparing v Village of Olympia Fields , 266 F3d 684, 689 (CA 7, 2001) (“Splitting fractions of an inch can be a v ery treacherous endeavor, produc ing arbitrary results. But we need not pull out our rulers and begin to measure. Under th e Fourth Amendment, the point must be identified by inqu iry into reasonable expectation s of privacy.”).13 officers does not destroy an occupant’s right to maintain a rea sonable expectation of privacy from unreasonable intrusion. Kentucky v King , 563 US 452, 470; 131 S Ct 1849; 179 L Ed 2d 865 (2011) (“[E]ven if an occupant chooses to open the door and speak with the officers, the occupant need n ot allow the officers to enter the premises and may refuse to answer any questions at any time.”). 8 The only question is whether defendant’s expectation of privacy remained intact when some portion of her hand or arm crossed the threshold to retrieve her property or if, by doing so, she some how surrendered that expectation. The lower courts compared this case to Santana to conclude that defendant did not have a reasonable expectation of privacy because she exposed he rself to public arrest. See
Hammerlund , unpub op at 5. Santana is distinguishable. In that case, the defendant was voluntarily standing in the middle of her open doorway before t he police encounter even began; by doing so, she exposed herself to the public “as if sh e had been standing completely outside” and she did not have any reasonable expectation of privacy from the very beginning of the encounter. Santana , 427 US at 42. In contrast, defendant began this encounter inside her home—inside her bedroom—emerging only when she and her

8 The lower courts did not conclu de that defendant exposed herse lf to public arrest by coming to the door or by talking to Officer Staman while standi ng 15 to 20 feet back from the door. Rather, the lower courts concluded that defendant su bjected herself to public arrest only by extending her han d beyond the threshold when ret rieving her identification. See Hammerlund , unpub op at 5 (“[D]efendant’s act of reaching out to grab her identification . . . caused her to . . . expos[e] herself to a public arrest . . . .”). Accordingly, we need not decide whether her mere presence and interaction wi th Officer Staman at the door, and whether she did so voluntarily or as a result of coer cion or deception, constituted exposure to public arrest.14 roommate were threatened with arre st, and then remaining 15 to 20 feet away from the doorway. When asked to provide her driver’s license, she had h er roommate pass it to Officer Staman while she remained away from the door. Defendan t manifested an intent to stay inside, and Officer Staman was aware of that intention. Given her actions, she did not voluntarily and knowingly expos e herself to the public as i f she had been standing outside her house. Defendant’s a ctions made clear that she was carefully preserving her expectation of privacy. Nonetheless, the Court of Appeals affirmed the trial court’s a pplication of Santana to this case because it reasoned that defendant exposed herself to public arrest by approaching the door and reachin g out to retrieve her identific ation. Hammerlund , unpub op at 5. But there is a fundamental difference between the rea sonable expectation of privacy of a person who voluntar ily stands in an open doorway a nd the reasonable expectation of privacy of a person who remains inside the confi nes of her home, approaching the doorway only briefly and momentarily breaking t he plane of the doorway with some portion of her arm or hand. 9 In other words, defendant did not surrender her

9 See United States v Flowers , 336 F3d 1222, 1227 (CA 10, 2003), holding that the defendant was not subject to public arrest under Payton and Kirk and distinguishing Santana : The record shows that at the tim e of Flowers’ arrest, and from the time that night at which the police o fficers first came to Flowers, Flowers was inside his home. Although Flowers put his arm and hand outside his house by extending them through the panel opening, the rest of his bo dy did not cross his threshold. We believe that Flowers did not lose “the constitutional protection afforded to the individual’s interest in the privacy of his own home,” Payton , [445 US at 588,] by this limited exposure. Rather, Flowers15 expectation of privacy because she did not expose herself to pu blic view, speech, hearing, and touch as if she had been standing completely outside

. Santana , 427 US at 42. Defendant manifested an intent to remain fully within her home by carefully standing several feet away from the door. She continued to man ifest this intent when she approached the doorway briefly and only broke the plane of the doorway with some portion of her arm or hand. We think that society would recognize defe ndant’s behavior as preserving a reasonable expectati on of privacy. In fact, we wo uld venture that what society would not view as reasonable is exactly w hat occurred in this case—that a person suspected of a minor misdemeanor could be subjected to a warrantless arre st inside her home in the middle of the night. To recap, defendant’s expectation of privacy within her home wa s reasonable, and her action of reaching out over th e threshold and retrieving he r identification did not relinquish that reasonable expect ation. Defendant was not expo sed to public arrest, and accordingly, Santana is inapplicable to the facts of this case.
B. EXIGENT CIRCUMSTANCES Beyond the fact that Santana does not apply because defendant did not leave the confines of her home or otherwise subject herself to public arr est, Santana is still

showed a conscious intention to protect the privacy of his home by utilizing only the small hole in the wall. The dissent directs its attention to the factual differences be tween this case and Flowers , but it disregards the Flowers court’s focus on the defendant’s limited exposure of his hand outside the home in connection w ith his conscious intention to maintain his reasonable expectation of privacy, which is what we find most relevant to the instant discussion.16 inapplicable because there was no hot pursuit or need for immed iate police action. When officers have probable cause and exigent circumstances exist, i t is reasonable under the Fourth Amendment for officers to enter a home without a warrant

. Payton , 445 US at 590. Exigent circumstances exist when an emergency leaves law enforc ement with insufficient time to obtain a warrant. Michigan v Tyler , 436 US 499, 509; 98 S Ct 1942; 56 L Ed 2d 486 (1978). “Hot pursuit” of a fleeing felon is one recognized example of exigent circumstances. Santana , 427 US at 42-43. Unlike the lower courts, we do not believe that there was a legitimate hot pursuit in this case. To begin, application of the hot-pursuit doctrine under the ins tant circumstances is suspect. See Welsh v Wisconsin , 466 US 740, 750; 104 S Ct 2091; 80 L Ed 2d 732 (1984) (“Our hesitation in finding exige nt circumstances, especially w hen warrantless arrests in the home are at issue, is partic ularly appropriate when the und erlying offense for which there is probable cause to arrest is relatively minor.”). In f act, it is far from well settled that an officer with probable cause to arrest a suspect for a m isdemeanor may rely on the hot-pursuit exception to make a warrantless home entry. Stanton v Sims , 571 US 3, 6, 10; 134 S Ct 3; 187 L Ed 2d 341 (201 3) (recognizing that the federa l circuits are sharply divided on whether a necessary component of the hot-pursuit doc trine is the pursuit of a fleeing felon and that its own precedent wa s “equivocal” on the matter). 10

10 Our Court of Appeals addressed this issue decades ago, opining that “the less serious nature of a misdemeanor offense militates against extending the hot pursuit exception to justify an unannounced entry into a private residence to make s uch an arrest.” People v Strelow , 96 Mich App 182, 191; 292 NW2d 517 (1980).17 However, even were we to characterize what occurred as a “pursu it,” that pursuit would be far from a “hot” one. “What makes the pursuit ‘hot’ i s ‘the emergency nature of the situation,’ requiring ‘immediate police action.’ ” Smith v Stoneburner , 716 F3d 926, 931 (CA 6, 2013) (c itation omitted). In Santana , immediate action was necessary both because police were pursuing a fl eeing felon and because there was a reasonable fear that the defendant would destroy evidence if they did not act quickl y. Santana , 427 US at 42- 43. Here, defendant was suspected of a 90-day misdemeanor and there was no evidence of that crime that she could destroy. Indeed, all the elements of the crime were already known to the police. There is no suggestion that any emergency existed that would have entitled the police to enter defendant’s home throughout the co nversation up to the point when defendant reached out to retrieve her identification. We fail to see how defendant’s interaction at the doorway created any kind of emergency, let a lone one that would outweigh her expectation of privacy in her home. The Court of Appeals held that, under Santana , the officer’s pursuit of defendant was legitimate because he acted l awfully by attempting to grab her arm when she extended it beyond the threshold of her home. Hammerlund , unpub op at 6. As we have explained, critical to Santana ’s holding was the fact that the defendant in that case was volunt arily in full public view when she first interacted with the police and before she retreated into her home. But, as previously discusse d, defendant was not voluntar ily exposed to public arrest at any point in the encounter. Therefore, unlike in Santana , when defendant pulled her arm away from the officer s he did not thwart an “otherwise proper a rrest” that had been “set in motion in a public place.” Santana , 427 US at 42-43.18 C. PAYTON
Because Santana is inapplicable, we return to Payton , which prohibits entry into a suspect’s home without a warrant in the absence of an emergency situation. Payton , 445 US at 590. Defendant did not expose herself to public arrest o r relinquish her reasonable expectation of privacy throughout the encounter and there was n o hot pursuit, but Officer Staman conceded that defendant’s arrest was completed inside he r home. Since the seizure occurred beyond the “firm line at the entrance of the house,” i t was unreasonable because it was accomplished without a warrant, without consent, and wit hout any exigent circumstances. Payton prohibits it. 11
V. CONCLUSION Officer Staman completed defendant’s arrest inside her home, th e place where the Constitution most protects her freedom from unreasonable govern mental intrusion. Defendant was not subject to public arrest because she remained inside, she maintained her reasonable expectation of privacy, and her act of reaching out to retrieve her identification did not expose her to the public “as if she had been standing c ompletely outside her house,”
Santana , 427 US at 42. In addition, the circumstances were insufficie nt to justify the hotpursuit exception to the warrant requirement. Because the arre st was completed across the Fourth Amendment’s “firm line at the entrance of the home,” it was presumptively unreasonable. Payton , 445 US at 586, 590. It is the prosecution’s burden to overco me this

11 Although we disagree with the dissent that there was no eviden ce of coercion in this case, because defendant’s arrest was completed in her home, we find it unnecessary to discuss or adopt the constructiv e-entry doctrine that defendant urges us to endorse. See United States v Morgan , 743 F2d 1158, 1166 (CA 6, 1984); People v Gillam , 479 Mich 253, 261-266; 734 NW2d 585 (2007).19 presumption, Oliver , 417 Mich at 380, and when the government’s interest is to arr est for a minor offense, the presumption that a warrantless entry into a home was unreasonable is difficult to rebut, Welsh , 466 US at 750. The prosecu tion failed to overcome this presumption, and the trial court and the Court of Appeals erred by concluding otherwise. Accordingly, we reverse the Court of Appeals judgment and reman d to the trial court for further proceedings. Whether suppression of evidence under the exclusionary rule is appropriate is an issue separate from whether defendant ’s Fourth Amendment rights were violated by police conduct. People v Hawkins , 468 Mich 488, 499; 668 NW2d 602 (2003). Because the trial court found no constitutional violat ion, it did not opine on the application of the exclusionary rule. We remand this case to t he trial court to consider this issue. 12

Megan K. Cavanagh Bridget M. McCormack David F. Viviano Richard H. Bernstein Elizabeth T. Clement

12 Amicus Curiae, the Prosecuting A ttorneys Association of Michig an, urges this Court to conclude that the exclusionary r ule must not apply here pursuan t to its reading of New York v Harris , 495 US 14; 110 S Ct 1640; 109 L Ed 2d 13 (1990). Unlike the dissent, we believe that it would be imprudent to decide this issue given that neit her the trial court nor the Court of Appeals addressed this a rgument, and we leave that iss ue to the parties to raise and the trial court to decide on remand. We note, however, tha t the prosecution acknowledged in its supplemental brief that defendant’s admissi ons following her arrest may be inadmissible under Harris

.S T A T E O F M I C H I G A N
SUPREME COURT

PEOPLE OF MICHIGAN, Plaintiff-Appellee,
v No. 156901 JENNIFER MARIE HAMMERLUND, Defendant-Appellant.

Z AHRA , J. ( dissenting ). The majority holds that defenda nt’s arrest violated the United States Constitution because defendant never left the sanctity of her home—or otherw ise relinquished the reasonable expectation of privacy inherent to the home 1 —when Officer Erich Staman began the process of arresting her. I respectfully dissent. I conclude that United States v
Santana 2 is on point and applicable to the instant case and not, as hel d by the majority, meaningfully distinguishable from the facts presented in this c ase. In my view, nothing about the probable cause underlying the arrest or its location rendered it constitutionally deficient. But even if the warra ntless entry into defendant’s home and subsequent arrest were improper under Payton v New York , 3 the established facts are sufficient to hold that

1 See Payton v New York , 445 US 573, 585-586, 589-590; 100 S Ct 1371; 63 L Ed 2d 639 (1980).

2 United States v Santana , 427 US 38; 96 S Ct 2406; 49 L Ed 2d 300 (1976).

3 See Payton , 445 US at 585-586, 589-590.2 exclusion of the evidence obtained after the arrest is not appr opriate under New York v
Harris

. 4 For these reasons, I would affirm defendant’s convictions. 5
I. NO MEANINGFUL DISTINCTION FROM UNITED STATES v SANTANA

The Fourth Amendment of the Uni ted States Cons titution provides : The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly des cribing the place to be search ed, and the persons or things to be seized. An arrest of a person, like all seizures (and searches), must t herefore be reasonable to pass constitutional muster. 6 Warrantless searches and seizures that occur within a defenda nt’s

4 New York v Harris , 495 US 14; 110 S Ct 1640; 109 L Ed 2d 13 (1990).

5 This Court, in its May 30, 2018 order, required the parties to prepare supplemental briefs addressing a single issue: “whet her it is constitutionally perm issible for a police officer to compel, coerce, or otherwise enti ce a person located in his or her home to enter a public place to perform a warrantless arrest.” People v Hammerlund , 501 Mich 1086, 1087 (2018). The majority does not address this question now becaus e it has determined that defendant never left her home or otherwise relinquished her rea sonable expectation of privacy prior to her arrest. Although I disagree with the majo rity’s reasoning, I would also decline to address this issue b ecause—having revi ewed the recor d—I have found no evidence of coercion in this case. Given that neither I nor the maj ority believes that the questio n posed to the parties in this Court’s May 30, 2018 or der is pertinent to these procee dings, the best course of action is to either deny defendan t’s application for leave or d irect the parties to devote further briefing to the issues the majority now deems to be dis positive. For the reasons expressed in this dissent, I believe that the majority’s chosen course of action is imprudent and legally incorrect.

6 Payton , 445 US at 585.3 home are presumptively unreasonable. 7 Indeed, “ ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is direc ted.’ ” 8 As the United States Supreme Court stated in Payton v New York : The Fourth Amendment protects the individual’s privacy in a var iety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual ’s home— a zone that finds its roots in clear and specific constitutiona l terms: “The right of the people to be secure in their . . . houses . . . shall no t be violated.” That language unequivocally establis hes the proposition that “[a]t t he very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion .” In terms that apply equally to seizures of property and to seizures of p ersons, the Fourth Amendment has drawn a firm line at the entrance to the h ouse. Absent exigent circumstances, th at threshold may not reasonably be crossed without a warrant. [9] On the other hand, arrests made in public places are not afford ed nearly the same level of protection under the Fourth Amendment. 10 Rather, in public settings, a police officer does not typically violate the Fourth Amendment by perf orming a warrantless arrest as long as it is supported by probable cause. 11 Critically, under the United States Supreme Court’s decision in United States v Santana , the doorway of one’s re sidence is considered

7 Id . at 586.

8 Id . at 585-586, quoting United States v United States Dist Court for the Eastern Dist of Mich , 407 US 297, 313; 92 S Ct 2125; 32 L Ed 2d 752 (1972).

9 Payton , 445 US at 589-590 (citation omitted).

10 See Santana , 427 US at 42.

11 Id

.4 a public space for purposes of Fourth Amendment analyses. 12 That is, a defendant does not have an “expectation of pri vacy” in the threshold separatin g the interior of his or her home from the outside world. 13
In Santana , the police went to the defendant’s house on the basis of info rmation that she was in possession of marked money used to make a controlled purchase of heroin by an undercover agent. 14 Testimony established that, when the officers arrived, the de fendant was “standing directly in the door way[;] one step forward would have put her outside, one step backward would hav e put her in the vestibule of her reside nce.” 15 The officers displayed identification and shouted “police,” prompting the de fendant to retreat into the vestibule of the house. 16 As she did, the defendant sp illed two bundles of paper packet s containing a white powder, later determined to be heroin. 17 The police followed the defendant into her home, restrained her, and asked her to empty her pockets. 18 The defendant produced $70 of marked money. 19 The defendant was charged with distribution

12 Id . at 40, 42.

13 Id . at 42.

14 Id . at 39-40.

15 Id . at 40 n 1.

16 Id . at 40.

17 Id . at 40-41.

18 Id

. 19 Id . at 41.5 of heroin, and she moved to suppress evidence recovered at the scene. 20 The Supreme Court of the United States determined that suppression was inap propriate because the arrest was “set in motion in a public place . . . .” 21 That is, the defendant was in a public place— the threshold of her home, where she had no reasonable expectat ion of privacy—when the police, armed with probable cause, sought to arrest her. 22 The defendant could not avoid an otherwise proper arrest by retreating into her home because law enforcement officers armed with probable cause for a n arrest are within constitution al bounds to engage in a “hot pursuit” of a fleeing felon, even if that pursuit requires intrusion into the home. 23 The Supreme Court observed that “[t]he fact that the pursuit here e nded almost as soon as it began did not render it any the less a ‘hot pursuit’ sufficient to justify the warrantless entry into Santana’s house.” 24 In the present case, the majority makes much of the fact that d efendant began her encounter with Officer Staman from a position within the interi or of her home. But this factual distinction from Santana 25 is without legal significance. What mattered in Santana

20 Id

.
21 Id . at 43.

22 Id . at 42.

23 Id . at 42-43. As the Supreme Court noted, the “hot pursuit” exce ption to the warrant requirement is a form of the exig ent-circumstances exception. Id . & 43 n 3, citing Warden, Maryland Penitentiary v Hayden , 387 US 294, 298; 87 S Ct 1642; 18 L Ed 2d 782 (1967).

24 Santana , 427 US at 43.

25 See id . at 40.6 was that the arrest was initiated from a lawful point in a public place. 26 I would hold that Officer Staman complied with this aspect of Santana by initiating the arrest only after defendant voluntarily reached across the threshold of her home to retrieve her identification. 27 The majority suggests that the r ecord is unclear regarding how much of defendant’s arm or body was on either side of the imaginary line dividing t he protected area within the interior of the home and the unp rotected public space outside. While defendant’s exact position at the time the arrest w as initiated has not been esta blished with pinpoint accuracy, the uncontroverted record evidence shows that Officer Staman di d not reach across the threshold of the house at all when defendant attempted to retake her identification. At the evidentiary hearing following de fendant’s motion to suppress, 28 Officer Staman testified,

26 See id . at 42.

27 Contrary to the majority’s assertion, the conduct of other pol ice officers prior to defendant’s interaction with Officer Staman does nothing to aff ect this analysis. Defendant testified at trial that the officers who came to her door before Officer Staman’s arrival threatened her and her roommate with arrest if defendant did no t get out of bed and come to her door. Putting aside that this testimony is arguably ina dmissible hearsay relating to the statements of her roommate and of the police officers—all o f whom never testified during these proceedi ngs—the officers’ actions have no bearing on whether defendant maintained a reasonable expectation of privacy when she volunta rily reached across her threshold during her subsequent interaction with Officer Staman . Although I am troubled by defendant’s testimony pertaining to the conduct of the offic ers who preceded Officer Staman, her position inside the home before she spoke with Offi cer Staman does not invalidate the conclusion that, at the time of her arrest, defe ndant was “exposed to public view, speech, hearing, and touch as if she had been standing co mpletely outside her house.” See id

. 28 Because the parties harbored som e disagreement as to the perti nent facts at the initial suppression hearing, the trial court allowed for an evidentiary hearing to establish the relevant facts of the case.7 “I don’t think my hand was ever inside the house when I handed [defendant] the I.D.” 29 Rather, he only entered the house when he took hold of defendan t and was pulled inside while attempting to complete the arrest. Some part of defendant’s person, at the very least up to her wrist, had extended beyond the constitutionally prote cted bounds of her home; and from the record, it appears that there is no evidence that Officer Staman took hold of any part of defendant’s person that remained inside the house a t the moment when he initiated the arrest. On this record, I disagree with the majority’s assertion that d efendant had a reasonable expectation of priv acy at the time of the arrest. 30 In Katz v United States , the Supreme Court of the United States held that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fou rth Amendment protection.” 31 I discern no principled reason why the act of appearing at the doorway and reaching outside

29 I cannot conclude that the reco rd lacks clarity merely because Officer Staman testified that he did not “think [his] hand was ever inside the house whe n [he] handed [defendant] the I.D.” Taken at face value, t he testimony establishes that Officer Staman believed he initiated the arrest while defenda nt extended some part of her body outside. To the extent the phrase “I don’t think” may be viewed as qualifying Officer Staman’s testimony, the absence of any contradictory evidence looms large. Simply stat ed, Officer Staman’s testimony is uncontroverted.

30 I take further issue with the practical application of the maj ority’s holding. If future arrests are initiated near the t hreshold of a defendant’s home, is the defendant—who maintains a single foot inside the interior of the home—free fr om warrantless arrest simply because they “manifest[] an inten t to stay inside, and [law enf orcement is] aware of that intention”? Regardless, even if defendant subjectively intende d to maintain a reasonable expectation of privacy while standing away from the door at the beginning of her interaction with Officer Staman, this expectation could not rem ain reasonable when she moved forward and voluntarily re ached across the threshold of h er home.

31 Katz v United States , 389 US 347, 351; 88 S Ct 507; 19 L Ed 2d 576 (1967).8 is not properly characterized as “knowingly expos[ing oneself] to the public.” Several federal circuit courts agree. Consider Sparing v Village of Olympia Fields , 32 the case cited by the majority for the propos ition that “an attempt to determi ne how far defendant extended her arm or hand over th e threshold and what that might mean is an unnecessary exercise.” In that case, the United States Court of Appeals fo r the Seventh Circuit explained a “doorway arrest” as follows: But what if the individual is not voluntarily standing in an open doorway, but answers a knock at the door, standing by a “fracti on of an inch” behind an open doorway? We still apply Santana -type “public view, speech, hearing, and touch” analysis to aid in the determination of whe ther a reasonable expectation o f privacy exists . . . . . . . [W]hen an individual voluntarily stands behind an open doorway—fractions of an inch “inside the home”—ordinarily, for purposes of the Fourth Amendment, she sta nds outside, in a public place. [33] Sparing is not the only federal circuit case to hold that a person sta nding entirely inside the home by a small amount is in a “public place” for the purposes of the Fourth Amendment (and thus potentially subject to warrantless arrest). In United States v Vaneaton , the issue was whether “the police, acti ng with probable cause but without a warrant and while standing outside [the defendant ’s] motel room, could lawfully a rrest [the defendant] while he was standing immediately inside the open doorway.” 34 The United States Court of Appeals for the Ninth Circuit concluded that the arrest was law ful, reasoning that the

32 Sparing v Village of Olympia Fields , 266 F3d 684 (CA 7, 2001).

33 Id . at 689.

34 United States v Vaneaton , 49 F3d 1423, 1425 (CA 9, 1995).9 defendant “exposed himself in a public place” because “he volun tarily opened the door and exposed both himself and the immediate area to them.” 35 Similarly, in United States v
Council , the United States Court of App eals for the Eighth Circuit con cluded that a warrantless arrest was lawful where the defendant was arrested “at the doorway of his camper.” 36 The court explained that the precise placement of the defenda nt in relation to the doorway was not dispositive: Lest we become too preoccupied with the exact location of the individual in relation to the doorway, we make clear our genera l conclusion that [the defendant] forfeited a ny reasonable expectation of pr ivacy during the exchange. When [the defenda nt] appeared at his doorway, he was not merely visible to the public, but was as exposed to public view , speech, hearing, and touch as if he had been standing completely outsid e his house. [37] These courts properly applied the principles set forth in Katz and Santana

. 38

35 Id . at 1427.

36 United States v Council , 860 F3d 604, 606-607 (CA 8, 2017).

37 Id . at 610-611 (quotation marks , citations, and brackets omitted)

. 38 The majority’s reliance on the decision of the United States C ourt of Appeals for the Tenth Circuit in United States v Flowers , 336 F3d 1222 (CA 10, 2003), is misplaced. In that case, the police learned that the defendant was selling al cohol (among other things) illegally from his home. Id . at 1223. Although the defendant was not initially aware that he was speaking to police, he interacted with them from behind a closed door. Id . at 1224. When the police requested that th e defendant sell them wine, th e defendant opened a panel adjacent to the door with a bottle of wine in hand and stated t hat the purchase would cost $3.00. Id . At that point, the police made themselves known and requeste d entry into the defendant’s home. Id . The defendant oblig ed, and the police a rrested him once insi de the home. Id . The Tenth Circuit held that, a bsent exigent circumstances, t he arrest violated the Fourth Amendment, stating: Although [the defendant] put his arm and hand outside his house by extending them through the panel opening, the rest of his body did not cross his threshold . . . . [The defenda nt] did not lose “the consti tutional protection10 The Santana Court reasoned that the defendant was in a public place when s he stood in the threshold of her home because “[s]he was not merely visi ble to the public but was as exposed to public vie w, speech, hearing, a nd touch as if she ha d been standing completely outside her house.” 39 So, too, was defendant in this case “exposed to public view, speech, hearing, and,” clearly, “touch” as if no part of her was occupy ing the space within her home at the time of her arrest. 40 Officer Staman testified at trial that, during his initial in teraction with defendant, “it was still dark, but you could see who [he] was talking to inside the house without any difficulty.” No door or barrier impeded defe ndant’s ability to speak to Officer Staman from a point initially between 10 and 20 feet wi thin her home or her ability to reach across the threshold in a n attempt to retake her ident ification, nor did any such barrier prevent Officer Staman from taking hold of some portion of defendant’s hand or wrist without crossing the threshold himself. When Officer Sta man initiated the arrest by taking hold of the part of defenda nt that crossed her threshold , it was of no consequence that some other portion of her body remained within the protect ed area of the home’s

afforded to the individual’s int erest in the privacy of his own home . . . .” [ Id

. at 1227, quoting Payton , 445 US at 588.] While the majority cites Flowers for its acknowledgment of the defendant’s “conscious intention to maintain his reasona ble expectation of privacy,” t hat case is easily distinguishable because the defen dant cannot be said to have be en “exposed to public view, speech, hearing, and touch as if []he had been standing complet ely outside h[is] house” when he reached his arm through a panel next to an adjacent but closed front door. See Santana , 427 US at 42. As discussed, the circumstances involved in th is case are quite different.

39 Id ., citing Hester v United States , 265 US 57, 59; 44 S Ct 445; 68 L E d 898 (1924).

40 See Santana , 427 US at 42.11 interior. As was the case in Santana , the circumstances surrounding the arrest reveal that defendant’s expectation of priva cy was diminished to a point “a s if she had been standing completely outside her house.” 41
II. PROBABLE CAUSE TO ARREST DEFENDANT Having determined that the Santana holding is applicable under these facts, it is still necessary to determine whether O fficer Staman had probable caus e to arrest defendant 42 and whether a “hot pursuit” justified Officer Staman’s entry in to the home after initiating the arrest. I would hold that Officer Staman had probable caus e sufficient to execute a public arrest and that—regardless of the relatively fleeting “p ursuit” leading into defendant’s home—Officer Staman’s entry after beginning the arr est was lawful. As the majority articulates, “[ p]robable cause to arrest exist s where the facts and circumstances within an officer’s knowledge and of which he has reasonably trustworthy information are sufficient in the mselves to warrant a man of re asonable caution in the belief that an offense has been or is being committed.” 43 In this case, by the time Officer Staman attempted to perform the arrest at issue, he had already discov ered an abandoned car registered to defendant bearing indication that it had been the cause of damage to public road fixtures. After Officer Staman arrived at defendant’s res idence, defendant made

41 See id

.
42 See id

. 43 People v Champion , 452 Mich 92, 115; 549 NW 2d 849 (1996). See also Devenpeck v Alford , 543 US 146, 152; 125 S Ct 588; 160 L Ed 2d 537 (2004), citing Maryland v Pringle , 540 US 366, 371; 124 S Ct 795; 157 L Ed 2d 769 (2003).12 noncustodial prearrest statement s that she was driving and that she had left the scene of the accident without reporting the dama ge. Probable cause was ther efore clearly established as to defendant’s involvement in failing to report an accident causing damage to fixtures. 44
MCL 764.15 outlines several state -specific rules for conducting warrantless arrests. Under that statute, a police offi cer may conduct a warrantless arrest for any felony, misdemeanor, or ordinance viola tion committed in that officer’s presence. 45 Felonies can form the basis for a valid warrantless arrest under MCL 764.15( 1)(b) even when not committed in the officer’s presence; but misdemeanors that are not committed in the officer’s presence can only form the basis for a warrantless ar rest under MCL 764.15(1)(d) when they are punishable by imprisonment for more than 92 days and when the arresting officer has “reasonable cause” to believe the person being arre sted committed the misdemeanor. Here, Officer Staman went to defendant’s home to investigate a suspected failure to report an accident cau sing damage to fixtures in vio lation of MCL 257.621, although the crime was not committed in his presence. Failure to report an accident causing damage to fixtures is only a 90-day misdemeanor. 46 Accordingly, it does not meet the criteria for a valid warrantless arrest under MCL 764.15(1)(d). The arrest at issue therefore constituted a statutory violation. Nevertheless, as this Court stated in People v Hawkins :

44 See MCL 257.621.

45 MCL 764.15(1)(a).

46 MCL 257.621(a); MCL 257.901(1) and (2).13 Irrespective of the application of the exclusionary rule in the context of a constitutional violation, the drastic remedy of exclusion of evidence does not necessarily apply to a statutory violation. Whether the exclusionary rule should be applied to evidence se ized in violation of a statute is purely a matter of legislative intent. [47] That is, “where there is no dete rmination that a statutory viol ation constitutes an error of constitutional dimensions, application of the exclusionary rule is inappropriate unless the plain language of the statute indicates a legislative intent th at the rule be applied.” 48 Nothing in the text of MCL 764. 15 indicates that violations of the statute warrant application of the exclusionary rule. Thus, exclusion of evide nce on the basis of violations of that statute is appropriate only if such violations establis h “error of constitutional dimensions.” 49 The majority appears to ackno wledge as much in a footnote. 50 Putting aside, for the moment, probable cause to arrest defend ant for failure to report an accident causing damage to fixtures, precedent from the Supr eme Court of the United States provides: [A]n arresting officer’s state o f mind (except for the facts th at he knows) is irrelevant to the existence of probable cause. That is to say, his subjective reason for making the arrest need not be the criminal offense a s to which the known facts provide probable ca use. As we have repeatedly expl ained, the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the l egal justification for the offic er’s action does not invalidate the action taken as long as the circumstances, v iewed objectively, justify that action. [T]he Fourth Amendment’s con cern with “reasonableness” allows certain a ctions to be taken in certain circumstances,

47 People v Hawkins , 468 Mich 488, 500; 668 NW2d 602 (2003).

48 Id . at 507.

49 Id

. 50 See note 4 of the majority opinion.14 whatever the subjective intent. [E]venhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the s ubjective state of mind of the officer. [51] Regardless of the propriety of an arrest for defendant’s failur e to report an accident causing damage to fixtures, Officer Staman also had probable cause to initiate an arrest for operating a vehicle unde r the influence of i ntoxicating liquor, third offense, in violation of MCL 257.625(9)(c). The felony in formation and affidavit of pro bable cause in the record state that defendant had been c onvicted of operating while into xicated twice in the past— once in 1998 and once in 2006. 52 Officer Staman testified at the evidentiary hearing that

51 Devenpeck , 543 US at 153 (quotation marks and citations omitted). See a lso United States v Anderson , 923 F2d 450, 457 (CA 6, 1991) (“[K]nowledge of the precise cr ime committed is not necessary to a finding of proba ble cause provi ded that probable cause exists showing that a crime was committed by the defendants.”).

52 The majority suggests that defendant’s prior two convictions c annot be relevant to the probable cause supporting the arrest because the record is uncl ear as to whether Officer Staman was actually aware of th e convictions at the time of the arrest. See note 5 of the majority opinion. As a preliminary matter, Officer Staman may well have been aware of those convictions, having testif ied at the evidentiary hearing that, in order to determine the registered owner of the vehicle at the scene of the accident, h e had to consult secretary of state records. See MCL 257.625(21)(a) (prior convictions for o perating under the influence under MCL 257.625(1) are reporte d to the secretary of state). Regardless, the majority’s interpretation of Devenpeck ignores language from the Supreme Court’s opinion stating that an officer’s “subjective r eason for making the arrest need not be the criminal offense as to which the known facts provide probable cause,” and “the fact that the officer does not have the state of mind whic h is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, view ed objectively, justify that action .” See Devenpeck , 543 US at 153 (emphasis added; quotation marks omitted). Thi s language is consistent with the Supreme Court’s guidance in Herring v United States , which explained that exclusion is a tool of “ ‘last resort, not [of] first impu lse . . . .’ ” Herring v United States , 555 US 135, 140; 129 S Ct 695; 172 L Ed 2d 496 (2009), quotin g Hudson v Michigan , 547 US 586, 591; 126 S Ct 2159; 165 L Ed 2d 56 (2006). That is, the exclusionary rule is properly applied only where it results in “appreciable deterrence” of future Fourth Amendment violations. Herring , 555 US at 141 (quotation marks and15 when he was dispatched to the sc ene of the accident, he found d efendant’s vehicle abandoned, facing the wrong direction on an exit ramp from US-1 31, and showing signs that it had struck both of the protective barriers on the exit ramp. Defendant, herself, did not report the accident to the police. After Officer Staman ar rived at defendant’s home, he observed defendant leaning agains t a wall as if to maintain bal ance. He also noticed that her speech was slurred prior to t ransporting her to the police station. 53 A violation of MCL
citation omitted). Even when exclusion may facilitate some mar ginal degree of such deterrence, exclusion is not appropriate if the cost of applyin g the rule—“letting guilty and possibly dangerous defendants go free”—outweighs the potential benefit. Id . “[T]he rule’s ‘costly toll’ upon truth-seeking and law enforcement objectives presents a high obstacle for those urging appli cation of the rule.” Pennsylvania Bd of Proba tion & Parole v Scott , 524 US 357, 364-365; 118 S Ct 2014; 141 L Ed 2d 344 (1998). Mo reover, the Herring Court explained, “[t]he extent t o which the exclusionary rule i s justified by these deterrence principles varies with the culpa bility of the law enforcement c onduct.” Herring , 555 US at 143. “[E]vidence should be suppressed ‘only if it can be sa id that the law enforcement officer had knowledge, or may properly be charged with knowledg e, that’ ” his or her conduct violated the Fourth Amendment. Illinois v Krull , 480 US 340, 348-349; 107 S Ct 1160; 94 L Ed 2d 364 (1987), quoting United States v Peltier , 422 US 531, 542; 95 S Ct 2313; 45 L Ed 2d 374 (1975). Here, the record reveals no evid ence that Officer Staman believ ed this arrest to be unlawful before proceeding in sp ite of such awareness. Indeed, from his testimony at the evidentiary hearing, it seems cl ear that—notwithstanding the pr obable cause or lack thereof pertaining to the offense of operating a motor vehicle under th e influence of intoxicating liquor—Officer Staman believed that he was arresting defendant for a 93-day misdemeanor in compliance with MCL 764.15(1 )(d). There is no flagrant or c ulpable conduct on the part of the police to deter in future cases. The circumstances existing at the time of the arrest were sufficient to estab lish probable cause, and Officer Staman’s failure to recognize that he was able to arrest defendant for operating a vehicle wh ile under the influence of intoxicating liquor should not be punished by implementation of the exclusionary rule.

53 The majority believes that “more concrete facts”—aside from th e nature of defendant’s accident, the fact that defendant abandoned her crashed vehicle without contacting the police, defendant’s use of a wa ll in a manner suggesting that s he needed it to maintain balance, and defendant’s slurred speech—are necessary to establ ish probable cause to believe that defendant was under the influence of intoxicating alcohol when the accident16 257.625(9)(c) would constitute a felony. Thus, Officer Staman was statutorily authorized under MCL 764.15(1)(b) and (h) to arrest defendant, notwithstan ding his mistaken belief that failure to report an accident to fixtures was a 93-day mis demeanor.
III. HOT PURSUIT Moving forward, it becomes necessa ry to determine whether the a rrest was improper under Fourth Amendment jurisprudence because it was co mpleted inside defendant’s home, even though O fficer Staman initially took hol d of defendant when she voluntarily extended her hand int o a public space to retrieve h er identification. The Court of Appeals accurately alluded to the holding in Santana , stating that “a suspect may not defeat an arrest which has been set in motion in a public place . . . by the expedient of escaping to a private place.” 54 As noted by the majority, there appears to be a divide in the

occurred. To be certain, one can imagine a scenario in which d efendant imbibed alcoholic beverages only after returning home. The majority entertains s uch scenarios by speculating that defendant’s slurred speech and unstable stance were due to the accident. But the United States Supreme Court instructs us that “[p]robable cause . . . is not a high bar: It requires only the kind of fair probability on which reasonable and prudent people, not legal technicians, act.” Kaley v United States , 571 US 320, 338; 134 S C t 1090; 188 L Ed 2d 46 (2014), quoting Florida v Harris , 568 US 237, 244; 133 S Ct 1050; 185 L Ed 2d 61 (2013) (quotation marks, citation, and brackets omitted). On the info rmation available to Officer Staman and the circumstances pre sent at the time of the arrest, it was reasonable for him to conclude that defendant had been under the influence of intoxic ating liquor at the time of her accident, particularly in light of her failure to report th e accident to the police. This remains true regardless of other possible explanations for defe ndant’s demeanor and her inexplicable failure to report he r accident—an accident in whic h she collided with multiple protective barriers and left her damaged vehicle near the roadw ay facing the wrong direction. Given these facts, this arrest was not the product of a violation of the Fourth Amendment, but rather the result of sound investigatory police work.

54 See Santana , 427 US at 43.17 federal courts as to whether the “hot pursuit” exception applie s to warrantless entry into the home of a fleeing defend ant suspected of committing a misdemeanor

. 55 Indeed, our Court of Appeals has previously held that the “hot pursuit” exc eption to the warrant requirement did not allow for entry into the home of a defendan t suspected of committing a misdemeanor. 56 In any event, this Court need not take a stance on this issue in the present case. As previously stated, Officer Staman would have had probable cause to believe that defendant operated a vehicle under the infl uence of intoxicating liquor—a felony where, as here, it is a defendant’s third such offense 57 —before the arrest. Where Officer Staman had probable cause to believe that such a violation occurred, the “hot pursu it” exception would undoubtedly apply. 58 Accordingly, when Officer Staman took hold of defendant in a public place and defendant began to resist and pull away, Officer Stam an could lawfully pursue defendant into her home to prevent her escape. 59 As stated by the Supreme Court in

55 See Stanton v Sims , 571 US 3, 6; 134 S Ct 3; 18 7 L Ed 2d 3 41 (2013).

56 People v Strelow , 96 Mich App 182, 191; 292 NW2d 517 (1980).

57 See MCL 257.625(9)(c).

58 See Devenpeck , 543 US at 153.

59 See Santana , 427 US at 43. The majority suggests that Officer Staman coul d not rely on the “hot pursuit” exception to the warrant requirement partly b ecause there was no evidence that defendant could destroy; alt hough it is worth noting that evidence in the form of defendant’s measurable blood alcohol level would dissipate over time. Regardless, preventing the destruction of evidence is only one consideration in an analysis of exigent circumstances. See Minnesota v Olson , 495 US 91, 100; 110 S Ct 1684; 109 L Ed 2d 85 (1990). In Olson , the United States Supreme Court stated:18 Santana , “[t]he fact that the pursuit here ended almost as soon as it began did not render it any the less a ‘hot pursuit’ sufficient to justify the warrantl ess entry into [defendant’s] house.” 60 The arrest in this case was supported by probable cause, initi ated in a public place in accordance with Santana , and properly completed inside defendant’s home pursuant to the “hot pursuit” exception to the warrant requirement.

The Minnesota Supreme Court applied essentially the correct sta ndard in determining whether exigent ci rcumstances existed. The cour t observed that “a warrantless intrusion may be justified by hot pursuit o f a fleeing felon,
or imminent destruction of evidence . . . , or the need to prevent a suspect’s escape, or the risk of danger to the police or to other persons inside or outside the dwelling.” [ Id ., quoting State v Olson , 436 NW2d 92, 97 (Minn, 1989) (emphasis added; citation omitted).] Thus, while the arrest may not have been valid solely on the ba sis of an attempt to preserve evidence, entry into defendant’s home was necessary to prevent the circumvention of a constitutionally proper arrest, which was initiated from a posi tion outside the protected area inside the home.

60 Santana , 427 US at 43. I am cognizant of the rule that police cannot create the exigent circumstances relied on in entering a defendant’s home. See Kentucky v King , 563 US 452, 462; 131 S Ct 1849; 179 L Ed 2d 865 (2011). Even so, that rule merely bars application of the exigent-circumstances exception—including pursuit of a f leeing felon—where the police “create the exigency by en gaging or threatening to engag e in conduct that violates the Fourth Amendment . . .



### . ” Id . As previously alluded to, the record does not support the notion that Staman ever engage d in or threatened to engage in conduct that would violate the Fourth Amendment. Rather, defendant voluntarily re ached across her threshold to take back her identification after it was offered to her. T here was no indication presented in the lower court proceedings t hat defendant was improperly co erced into leaving the sanctity of her home on the basis of some show of authority or threat that removed the element of choice. The majority d isagrees, see note 11 of the majority opinion, but it fails to cite any part of the record i n support of its position.19 IV. APPLICATION OF NEW YORK v HARRIS But even if the “hot pursuit” e xception does not apply, defend ant still would not be entitled to suppression of the ev idence. Defendant is denied t he relief she seeks by the United States Supreme Court’s opinion in New York v Harris , 61 a case referred to by the majority in a single footnote. The majority remands the case t o the trial court but does not decide this issue, noting that n either the trial court nor the Court of Appeals addressed the application of the exclusionary rule. Because the facts of the case have been sufficiently developed such that we could apply the holding in Harris , I believe that we should do so in the name of judicial efficiency.
In Harris , the United States Supreme Court explained that “the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects . . . protectio n for statements made outside their pre mises where the police have probable cause to arrest the s uspect for committing a crime.” 62 That is, “where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton ,” as long as the statement is not rendered inadmissible on some other grounds, e.g., coercion

. 63 It seems clear, then, that because Officer Sta man had probabl e cause to arrest defend ant for failure to report an accident causing damage to fixtures and for operating a motor v ehicle under the influence

61 See Harris , 495 US at 17.

62 Id

. 63 Id . at 20-21.20 of intoxicating liquor, defendant’s statements in Officer Stama n’s police cruiser—made after waiving her Miranda rights—would be admissible even if the arrest inside defendant’s home violated the rule in Payton

. 64 I see no reason why the rule in Harris would not extend to uphold the admissibility of defendant’s blo od-alcohol-level tests as well.
V. CONCLUSION I would hold that there was no constitutional defect in the pro bable cause supporting the arrest and no constitutional defect stemming from the locat ion of the arrest. Even if a constitutional error did occur wh en Officer Staman entered the home to complete the arrest, the United States Supreme Court’s holding in Harris 65 instructs that the exclusionary rule would not serve to bar admission o f defendant’s self-incriminat ing statements made in Officer Staman’s police vehicle or to the blood-alcohol-level t ests administered in this case. For these reasons, I believe the lower courts ultimately reache d the correct conclusion. I would affirm defendant’s convictions.

Brian K. Zahra Stephen J. Markman

64 See id

. 65 See id

.