No. 2--07--0553 Filed: 12-23-09
IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court of Boone OF ILLINO IS, ) Co un ty. ) Plaintiff-Appellee, ) ) v. ) No. 05--CF--198 ) BEN JA MIN F ER RAL, ) Honorable ) Gerald F. Grubb, Defend ant-App ellant. ) Judge , Pres idin g.
JUSTICE JORGENSEN d

elivere d the opini on of the c ourt: Defend ant, Benjamin Ferral, was char ged with two counts of unlawful posses sio n of a fraudulent

identific ation ca

rd (15 I LCS 335 /14B(b) (1) (West 2004)). He moved to qu

ash his ar rest and sup press ev id ence, based on the warrantless, nonconse nsual police entry into the a partment where he and the cards were found. The trial court denied the motion, and defendant was convicte d following a stipulated bench trial. The court sentenced defendant to 2 y ears' conditionaldisch arge and 14 da ys in jail and ordered him to pay a $500 fine. Defendant appeals the denial of his motion to quash and suppress. We affirm. I. BACKGROUND OnAugust 11, and September 1, 2006, a he aring was held on defenda nt's motion to quash his arrest a

nd suppre ss eviden

ce. Off icer Da vid Dammon, a Belviderepolice of ficer, testifie d that,
onJune 21, 2005, he encountered defendant at the Courty

ard Apartments, drinking alcohol from anNo. 2--07--0553

-2-

opencontainer. Defendant denied living on the prope rty. Dammon, who when of f duty pro vide s security se rvices f

or the Cou

rtyard Apa

rtments, i nformed defenda nt that he was goi ng to put h

is
name on the "banned" list and that defendant was not to retu rn to the property . Defen

dant spoke

in English, and Dammon did not have trouble understanding him. Todd Moore, a Belvide re police officer, testified that, on June 24, 2005, he learned fr om Dammonthat two people, defendant and Julio Ferral, defendant' s cousin, were trespassing at the Courtyard Apartme nts and tha

t the apa rtment ma

nagers knew the

trespas sers by

name. Jaime Condor, one of the managers, had contac ted Dammon, stating that the suspects wereon the pro perty and that the door to apartment 4 at the 2005 Lake shore building had been kicked in. Condor further told Dammon, but notMoore, that defendant and Julio had been sleeping at the apartment. Dammon
co nt ac te d M oo re an d a sk ed hi m t o g o t o t he pr op er ty. Moore testifie d that he had infor mation tha

t both Dammonand Officer Brandon Parke r had instructed defendant and Julio to stay away from the apartment complex. According to Moor e, Parker had information from the suspects that they did not live

at the pr operty . Parker

testifie d that,
onJune 23, 2005, he ticketed defendant for obstruction of a front

windshield and for driving without
a license . Defen

dant spoke

English, and Park

er had no troubleundersta

nding him
. Defend

ant told Parker that he lived at 412 North Main in Elburn. He did not mention the Lakeshor e building or Courty ard Apa rtments. Moore went to the apar tment comp le x and met with the managers, Condor and Joey Sanfillipo, in a common area close to the apartments. The m anagers told Moore that, earlier tha t da y, they had o bser ved t wo men whowere

barr ed fr om the comp lex r

un inside apartment 4 at the 2005 Lakeshore building

when Sanfillipo and

Condor ap

proache d. Moore went to the apartme nt;No. 2--07--0553

-3-

the front door was wide open. He knocke d on the d oor and announced himself. There was no response, and he entered t he apartment. Moore suspected that the men were trespassing or burglarizing the unit; he did not have any information that the men had been sleeping there. Once insi de the apartm ent, M oore o bserv ed feet protr udin g from a closet in one of the bedrooms
. Moore or

dered the perso n, in E nglish, to come out, and Julio came forward. Moore handcuffed

him and brought

him to the li

ving room. Defendant then came out of the bathroom, and Moore handcuffed him. There were no other individuals in the apartment. Moore explained that he handcuffed

both men right away

for safety reasons because he did not know who they we

re, he was there b y himsel f with the tw o mana gers, an d he ha d info rmati on th at the men we re tres passi ng. While waiting for another officer to a rrive, Moore asked the men for identification. Julio had
a wallet on his per s on, and defendant nodded toward the bedroom and " indicated" that he had identification there. They walked to the bedroom, defendant "indicated" toward a box near a

bed, and Moore found a wallet inside the box. Inside the wallet, Moore found a resident alien card that he later discovered was fraudul ent, a doc ument he s

uspecte d was a

Mexican birth certificate, and a Social Security car

d. Moore suspected that

the Social Security ca

rd was invalid, because the ink on i t ran when it was moistened. Defendant told Moore that he lived in the apartment, but Moore understo od from th e manag ers that he did not. As Moore waited for Officer Wilgus to arr ive, Sergeant Mark Pollock arrived on

the scene. Becau se Moore be lieved th at he had probable cause that one or both of the suspects had committed tres pass to land or trespass to the residence, Moore and Pollock transported the men to the publi c safety building. There, Moore arrested the men. Po llock con

tacted the place

of busine ss of AntonioNo. 2--07--0553

-4-

Ferra l, the person who lived in the apartment, to inquire whether defe ndant and Julio were allowed to be in the apartment. Pollock, a Belvidere police shift supervisor, testified that, on June 24, 2005, he went to the Courtyard Apartments after he learned that Moore a nd Wilgus had detained t wo suspec ts there. Pollock and Condor went to Northwest Pallet, Antonio's employ er, to investigat e whet her he had granted defendant and Julio permissionto be there. Antonio, defendant's paternal cousin, stated that both Julio and de fendant

had perm ission to be in the apartment. Moore testified that he discovered after the arre sts that An

tonio was t

he apar tment tena

nt. Antonio testified that, on June 24, 20 05, he had alease f or apar tment 4. Aft er Ant onio 's divorce, defendant, who was already living at the apartment, had invited Antonio to live there; as of June 2005, Antonio had been living at the apartment for more than one yea

r. Defendant, Julio, and Moises Ferral, who were all cousins, lived in the apartment. Antonio explained that the door to the apartment was working at this time, although t here was a s mall problem with the locking mechani sm. Antonio testified that defendant's name was on the lease
. Antonio had his name added to the lease so that

he could register his truck and obtain a par king sticker. According to Antonio, defendant paid every

one's rent on more than one occasion. Antonio later clarified that he did not know if his name was on the lease, but he verified that he re gistered his name with apartment manage ment. Defendant

testified that, on June 24, 2005, he lived at apartment 4 at the Lakesho re bui ldin g. He paid the June 2005 rent, but the manager did not put his name on the receipt. Defendant stated that he lived at the apartment for about one y ear. He conceded that, one day before he was arrested, Dammontold him that he was not supposed to be onthe property. D efendant could not tell DammonNo. 2--07--0553

1 The lease document reflects that Moises and Alfonso were the original tenants for the 2004- 05 lease term. -5- in English that he lived

at the apartment, although he tried to do so in Spanish. Defendant denied telling Parker in English that he lived in Elburn. Condor testifie d that she

is the le asing agent for Waterford Property Management, which
owns the Courtyard Apa

rtments. She also manages the apartments. Condor testified that Moise s, defenda nt, and Al fonso Ferral (defen dant's brother) had applied to be tenants at apartment 4 at 2005 Lakeshore, but only Moises and Alfonso were on the original lease, because def endant's application had been denied. The lease term was July 27, 2004, through August 31, 2005. 1 Throu gh a "reque st for status change," the tenants had asked for Antonio to live with them. Antonio had the current lease f or the ap artment. Condor stated that defendant was never allowed to live on the prope rty or to be on t he pr op er ty. Condor explained that, as a result of several incidents involving defenda nt, he was barred fromthe prope

rty . Both Condor and B elvider e poli ce officers had told defendant that he was " no longer" allowed on the prop erty . In June 2005, de fendant had throw

n beer bottles acro ss the apartment parking lot and had once kicke d in a do or. Also, twice before, Condor had defendant
re moved from the property. B efore that, if defendant saw either Condor or "Joe" come on the pr op er ty, he wo ul d g et in a c ar an d d ri ve aw ay. Condor further testified

that Anton

io or Moise s usually

paid the r

ent. Howe

ver, she could notrecall who paid the June 2005 rent. She stated that defendant had never paid the rent. According to Condor, de fendant

speaks " perfec

t" Eng lish. Anton

io and Moises do not speak English. CondorNo. 2--07--0553

2 The record does not

reflect that Condor related to Moore before he entered apartment 4 that she observed defenda

nt and J ulio jumping out of the window or that maintenance workers had restrai ned them. -6- denied kno w ing that defendant was related to Antonio and Moises. I n the past, defendant had provided Condor with different names, including his actual name. Condor further t estified that, on th e morning

of June 24, 2 005, a woman who liv es acro ss from2005 Lake shore to ld Condor that someone was breaking into apartment 4. Condor saw defendant and Julio kicking in

the apartment

door. Cond

or and Sa nfillipo w ent to the

apartme nt. Once there, Condor saw defendant and Julio jumping out of a window. Condor further

testified that apartment maintenance men restrained the intruders, and the police arrived. Condor told the police that defenda nt had broken into the apartment. She did not tell them that he had been sleeping there
. 2 The door frame to the apartment was broken. After reviewing defense exhibit No. 2, a purporte d lease a

greement showin

g defe ndant as a tenant, Condor testified that it was an altered document because " 2700 Lakeshore" had been crossed out and marked to be "2005 L akeshore." Also, the document was not signed. Defendant

testified in rebuttal, upon reviewing defense exhibit No. 2, that he, Alfonso, and Moises rented t

he apar tment bec ause the

y ha d nowher e else to live. He conceded that his signature
was not on the document but denied that Condor had re

jected h is rental applica tion. Acc ording t

o defenda nt, they put Moises's na

me on the rental application because he was the only applica nt who had at least one year' s work experience. Condor informed them that they could rent

the apar tment. Defendant conceded that he " never signed any documents."No. 2--07--0553

-7-

Indenying

defendant's motion to quash and suppress, the court noted that it was ruling based
on"all the

ground s argue d by

counsel. " Defe

ndant move d to reconsider. On November 17, 2006, the court denied the motion. OnMay 29, 2007 , the t rial c ourt c onduc ted a s tipu lated bench trial . Foll owing t he cou rt's admonishments to defen

dant, th e Sta te recit

ed the ev idence f rom the pr

etrial he aring. The State added that the police had contacted the Social Security Administration, wh ich conf ir med that the number onthe card found in apartment 4 was not assigned to de fendant. Also, the resident alien card did not have t

he wate rmark c onsist ent with

that of a valid resident alien card. Trial counsel stipulate d to this, a

nd the tria

l court e ntered c onviction s. The trial court sentenced defendant to 2 ye ars' co nd it io na l d is ch ar ge , a $5 00 fi ne , a nd 14 da ys in jail with

credit f or 7 day s served and with d

ay -for-d ay credit. Defend

ant appe als. II. AN ALYS IS Defendant

challenges on three differe nt bases the trial court 's denial of his motion to

quash and suppress, arguing that this court should suppress the evidenc e derived from the unconstitutional search of apar tment 4 and reverse his convictions. First, defendant argues that the police violated his fourth amendment

rights b y ma king a w arrant

less entry into a private

residence where defenda

nt
was stay ing at th e reside

nt's invi ta tion. Second, he asserts that, assuming the entry was
co nstitutiona

l, his custodial arrest was unconstitutional because the police lacked pr obable cause an d there were no

exigent c ircumsta

nces. Third, de fendant

contends that, assuming

his custod

ial arre st
was constitutional, the police had neither probable cause nor

any other justification to allow them to searc h inside th e box wher

e they located his identif

ication c ards.No. 2--07--0553

-8-

Inreview ing a ru ling o n a mot ion t o supp ress, a revie wing co urt wi ll no t dis turb a trial court 's findi ngs of histori cal fact unless su ch findin gs are agains t the manif

est weight of

the evidence. Peoplev. Pitman , 211 Ill. 2d 502, 512 (2004). We review de novo , however, the ultimate question whether the evidence should be suppressed. Pitman , 211 Ill. 2d at 512. The fourth amendment to the United States Constitution protects the "right of the pe ople to be secure in their pe

rsons, hou ses, pape

rs, and e ffects, agains tunreasonable searches and seizures." U.S. Const., ame

nd. I V. Similar

ly, article I, se ction 6, of

the I llinois Constitution provides that the "people shall have the right to be secure in their persons, houses , paper s and other possessions agains tunreasonable searches [and] seizures." I ll. Const. 1970, art. I, §6. Articl e I, section 6, is interpreted

in limited lockstep with the fourth amendment. People v. Caballes , 221 Ill. 2d 282, 313 (2006). A. Warrantless Entry Defendant

argue s first

that he ha

d a reas onable

right to privacy in the apa

rtment an d, thus, that Moore needed pro bable cause or something approximating probable cause to enter the apartme nt. See Pitman , 211 I ll. 2d at 514 ("to cl aim the protection of the fourth amendment, a defendant must demon strate that he or she personally has an expe ctation o f privac y in the plac e searched and that his or her expectation is reasonable"). Assuming, without deciding, tha t defendant may invoke the fourth amendment, we conclude that the police prope rly ent ered the

apartme nt. Warrantl ess, nonconsensual entries into homes when police suspect b urglar ies in pro gress

have been upheld: (1) under the emergenc y exception; or (2) upon a fi nding of probable cause and exigent circum stances
. Further, exigent-circumstances ca se law utilizes two approaches: (1) finding tha t exigent circumstances are present if there is probable cause to believe that a bur glary is in progre ss;No. 2--07--0553

3 A third prong, that the "search must not be primarily motivated by intent

to ar rest and s eize evidence" ( Griffin , 158 Ill. App. 3d at 51), wasinvalidated by the Supreme Court in Br ig ha m C it y, Utahv. Stuart , 547 U.S. 398, 404-05, 164 L. Ed. 2d 650, 658, 126 S. Ct. 1943, 1948 (2006) (under the fourth amen dment , reasonableness is judged independently of the state of mind of the officer; thus, police entry

in response to apparent assault that left one person bloodied not judged by w

hether -9- or (2) applying

the multifactor test set forth in Dorman v. United States , 435 F.2d 385, 392-93 (D .C. Cir. 1970) (hereinafter Dorman factor s). I

n his briefs to

this court, defendant focuses on the Dorman factor s. We conclude below that the emergency exception is di spositive, but we also assess the police entry

by r eviewing exigent- circumst

ances c ase law. Thus, we hold below that, under any of the foregoing approac

hes, the police properly

entered apartment 4. 1. Emergency

Exception Under the emer gency exception , "[n]o war

rant is ne cessar

y w hen polic e enter

into and search the premises with a reasonable belief that immediate action is nece ssary for the purpose of providing aid to persons or property in need th ereof." Peoplev. Griff in , 158 Ill. App. 3d 46, 50 (1987); see also Mincey v. Arizona , 437 U.S. 3 85, 392, 57L. Ed . 2d 290, 29 9-300, 98 S. Ct . 2 408, 2413 (1978); Peoplev. Smith , 47 Ill. 2d 161, 164-65 (1970) (preser vation of human life paramount to right of privacy in such ca ses); People v. Brooks , 7 Ill
. App. 3d 767, 775-76 (1972) . Under the emergency exception: (1) the p olice must have re asonable

grounds to believe that there is an emerg ency at hand and an immediate need for their assistance in the protection of life or propert y; a nd (2) the re must be some reasona

ble basis , approxima

ting pro bablecause, to associate the emerge ncy with the are a
or place to be entered and searc hed. Griffin , 158 Ill. App. 3d at 50-51; see a lso Un ited States v. Snipe , 515 F.3d 947, 951 (9th Cir. 2008). 3 The reasonableness of the officer 's belief concerning theNo. 2--07--0553

police subjectively intended to ef fect an arrest, but by whe

ther there was an ob

jectivel y r easonab le basis to believe someone was in need of aid). Our supreme court, which takes a limited lockstep approach, has expre ssl y followed Brigham City 's reje ction of a

subjectiv

ist appro ach to fo

urth amendment issues. People v. Wear , 229 Ill. 2d 545, 566 (2008). -10- existence of an emergency is determined by the e

ntirety of the

circumstances known to the officer at th e t im e o f e nt ry. Griffin , 158 Ill. App. 3d at 51. If the ent ry was valid under the se consid

eration s, thenevidence of crime discovered during the entry may

be legally seized without a warrant. Griffin , 158 Ill. App. 3d at 51. As to the first prong of the emerge ncy exception, we c onclude that Moore hadreasona ble grounds to believe that there was an eme rgency --a suspected

burglary --at hand at

apartment 4 and
animmediate need for his assistance for the protection of life or property. C ondo r testifie d that a
womanwho lives across from apartment 4 told her on the morning of June 24, 2005, that someone
was breakin

g into the unit. Condor saw defendant and Julio kicking in the apartment door, and she testified that the door frame was broken. Moore testified that Dammon told him that two individua ls
were trespas sing at t

he apar tment. Cond

or and Sa nfillipo in formed M oore tha t the two in

dividuals
were banned from the complex. Condor further told Moore that defendant broke int o the apar tment. Moore testified that, when he arrived at apartment 4, the door was wide open and he suspecte d that defendant and Julio were inside the unit, trespassing and possibly bur glarizing the apartment. Based
onthis evidence, Moore had reasonable g rounds to believe that there was an emerg ency a thand and that ther e was an immedia

te ne ed for his a ssistance

to protect life or pr oper ty . We further conclude that the second pr ong of the emergency exception- -a reasonable basis, approximating probable ca use, to associate the emergency with the place to be entered--is met because, as we explain below, MooreNo. 2--07--0553

-11-

had actual probable cause to enter the apa rtment. Thus, und er t he emer gency excep tion , Moor e's entry was pr

oper. 2. Probable Cause and Exigent Circumstances Alth ough we find the emergency exception dispositive of

the issue of

Moore' s warra

ntless,
nonconsen sual en try, we asse ss exigent-circumstances case law below be cause defendant focuses inhi s briefs on t hat anal

ytic al frame

work. We b egin by

determin ing whe ther the re was probable cause f or Moore to enter the apar tment. a. Proba

ble Cause "A search conducte d without a

search warran t is per se unreasonable unl ess it is a search conducted

pursuant to consent, a

search incident to arre st, or a se arch pr

edicate d upon pro

bable ca use where there are exigent ci rcumstances which make i t impracti cal to obtai n a warrant." People v. Alexander , 272 Ill. App. 3d 698, 704 (1995). "Probab le cause exists when

the totali ty o f the fa

cts and circumstances known to the officers is such that a reasonably

prudent person would believe that the suspect is committing or has commit ted a crime." People v. Montgomery , 112 Ill. 2d 517, 525 (1986). The existe

nce of pr obable c ause depends

upon the to tality

of the ci rcumstan ces at th e time of the entry. People v. Love , 199 Ill. 2d 269, 279 (2002). " 'The standard for determining whether probable cause is present

is probab ility

of criminal activi

ty, rather than proo f bey

ond a rea sonable doubt. [Citat

ions. ]' " People v. Garvin , 219 Ill . 2d 10 4, 115 (2006 ), quo ting People v. Lee , 214 I ll. 2d 476, 485 (2005). Probable cause does not demand a showing that the be lief that the suspect has committed a crime be more likely true than false. People v. Jones , 215 Ill. 2d 261, 277 (2005). Defendant

asserts t hat, in lig ht of the mi

nimal polic e investi gat ion and the witness- credibi lity issues, the polic e here l acked probable cause to enter the apartment. He ar gues that Moore never sawNo. 2--07--0553

4 At oral a rgumen t, neithe r party could expla

in Condor' s stateme

nts. -12- him doi ng any

thing unusual. Defendant further arg ues that Moore could have spoken to An toni o before entering and that, if he had done so, he would have learned that defendant

was pre sent with Anton io's permission. Defendant also attacks Condor's cre dibility, asserting that she wa s unrelia ble because she stated that her maintenance workers ha d restrained d efenda

nt and we re holdin g him outside t he apartmen t after defendant and Julio broke into the unit; however, the maintenance workers did n ot tes tify at th e heari ng on de fendan t's motion and none of the police officers testified that they were told that the apartment employ ees had d etained defenda nt. 4 Defendant concludes that probable cause was not shown by

this incredible testimony. Defe ndant urges that this is significant because, accord

ing to Con

dor, the d efenda nt was outside t he apartment and thus in a place where he had no reasonable expectation of privacy . Instead, police found him inside the apar tment, where, defendant urges, he had every

expectation of

privacy . Defen

dant fur ther ass erts that

prior tothe entry there was no inv estiga

tion bey ond Condor

's state ments. Giv en Condor

's motive to b e less than truthful--she twice previously ha d de fendant rem oved from the prop erty and may have wa nted to
save her company

mone y by

avoi ding litigating an eviction claim--the police should have independ ently ve ri fi ed th at de fe nd an t w as no t s up po se d t o b e i n a pa rt me nt 4. Fi na ll y, defendant attacks Dammon's credibility , arguing that, as an apartment employ ee, he had a motive to

testify in line with the company' s interests and to see that his orders that defendant stay away f romthe prope

rty were followed. We conclude

that ther e was pr obable c ause for

th e police to en ter apartment 4. Condor testified that, on June 24, 2005, a woman who lives across from 2005 Lake shore told her that
someone was bre aking in

to apartme

nt 4. Condor

stated tha t she saw d

efenda nt and Juliokicking

inNo. 2--07--0553

-13-

the apartment

do or an d t ha t d ef

en da nt wa s b ar re d f

ro m t he pr op er ty. Condor further testified that she and Sanf

illipo wen t to the unit

and saw defendant

and Julio jumping out of a window. Condor
s tated that she told police that defendant had broken into the unit. Dammon testified that Condor contacted him on June 24, 2005, stating that defendant was on the property a

nd that a door

had been kicked in at apartment 4. Dammon then contacted Moore and asked him to go to th e p ro pe rt y. Moore testified that he knew from both Dammon an

d Parker that they had instr ucted de fendant

to stay away from the a

partmen t complex. Pa

rker te sti fi ed that th e day before defenda nt's ar rest, defendant told Parker that he lived in Elburn. Moore testified that, when he met with Condor and Sanfillipo, th ey informed him that, earlier that day , they had see n two men who were barred from the complex ru

n inside a partmen t 4. When he

arrive d at th e unit, Moo re obs erved t hat th e unit 's front door was open. He knocked and announce d himself and then entered the apa rtment. Moore believ ed that he ha

d probab le cause

that one or both of t

he men ha

d committe d a crime , at l eas t trespas s to land or res idence, and he arrested them. Ba sed on this evidence, we conclude that the facts known to Moore at the time of his entry into the apartment

were sufficient

to lead a reasona bly cautious person to believe that defendant had committed a crime. Turning to th e ext ent of

the po lice i nvest igati on, we reject defend ant's argument that the police shoul d have more t horou ghly inves tigat ed the natur e of def endan t's presenc e in the a

partmen t. Moore learned from several sources-- Dammon, Parker, and Condor--that defendant and Julio were banned from the complex. Further, Moore received informa tion from Parker and the managers that the suspects

did not l ive at the complex. Also, Condor told police that defendant and Julio had broken i nto apar

tme nt 4 that da

y, a nd Dammon

testifie d that, wh en Condor contact ed him concerning the suspects, she noted that the door to apa rtment 4 had been kicked in.No. 2--07--0553

-14-

As to Condor's credibility, we cann ot conclu

de that he

r testimon

y w as inher

ently unbelievable. Alth ough Moore located defendant and Julio inside the unit, Condor testified that she and Sanfillipo

saw the su spects ki cking in the apartment door and, later, jumping out a window, and that they were then restrained by

maintenance workers. I

t is unclear from her testimony whether she intended to state that the suspect s remained outside the apartment until the police arrived. Nevertheless, there was no testimony that she r elat ed the window-jumping episode or the maintenance worker s' involveme nt to Moore

prior tohis entry into the unit. I n all other significant respects, her testimony was consistent with what the police related that Condor related to them. As to Da mm on 's cr ed ib il it y, defendant does not specify wha

t part of his testimony was incre dible, nor does he point to any

evidence reflecting any

bias on Dammon's part other than that he worked at the apartm ent comple x while off-duty. I n sum, we reject defendant's ar gument that the police lacked probable cause to enter th e apart

ment. b. Exigent Circumstances Next, defe

ndant ar gues tha t, even if the police had probable cause, they failed to showthat there were exigent ci

rcumstan ces justi fy ing their warrantless, nonconsensual entry into apartment 4. "Generally , a warrantless and nonconsens ual entr y in to a suspe ct's home to make an arre st is prohibited

by t he fourt h amendme

nt, even w

ith proba ble cause." People v. Wear , 229 I ll. 2d 545, 567 (2008). "In the a

bsen ce o f consent or exigent circumstances, the police ar e prohibited from making a warra

ntless en try into a private residence to effectuate a rout ine felony arrest." People v. Williams , 161 Ill. 2d 1, 25-26 (1994); see also Payton v. New York , 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980) (suspect should notbe arre sted in his h ouse without an arrest warrant, even though there is probable cause to arr est him). This is because:No. 2--07--0553

5 This analy

sis is simila

r to the e me rgency exception. However, unlike the emergenc y exception, exigent-circumstances case law clearly require s probabl e cause and not some approximation thereof. -15- " '[t]o be a

rrested in the home

involves n

ot only the invas ion attendant to all arre sts but also
aninvasion of the sanctity of the home. This is simply too substantial an invasion to allow withouta warra

nt, at lea st in the ab sence of exigent c ircumst ances, even when it is accomplished

under statu tory auth ority and when p robab le caus e is cl early pres ent.' " Payton , 44 5 U. S. at 5 88- 89, 63 L. Ed. 2d at 652 , 100 S . Ct. at 138 1, quo ting United States v. Reed , 572 F.2d 412, 423 (2d Cir. 1978). See also People v. F oskey , 136 Ill. 2d 66, 75 (1990) (requiring probable cause and exigent circumstances before

an offic er ma

y make a w arr antless arrest inside a home). The question of whether there we re exig ent circumstances, like the determination of probable ca use, is judged according to the totality of the circumstanc es. People v. Tillman , 355 I ll. App. 3d 194, 198 (2005). As we noted above, exigent-circumstances c ase law utilizes two approaches in analy zing burglary scenar ios. The first approach concludes that exigent circ umstances are present

if there is probable cause to believe that a bur glary is in prog ress. 5 The second approach utilizes the Dorman factors
. As to the first approach, many co urts have upheld warrantless searche s upon a finding of probable cause to believe that

a b ur gl ar y w as in progress. See, e.g. , United States v. Brown , 449 F.3d 741, 748 (6th Cir. 2006) ("This and other circuits have held that an off icer may lawfully enter
a residence without a warrant under the e xigent circumstances exception

when the officer reasona

bly believes a burgla ry is in prog ress") ; In re Sealed Case 96- 3167 , 153 F.3d 759, 766 (D.C. Cir. 1998)No. 2--07--0553

-16-

("prob able cause to believe a burglary is in progress constitutes exigent circumstances sufficient to permit warran tless entry" and citing cases holding same); United States v. Reed , 141 F.3d 644, 649 (6th Cir. 1998)("One

exception

[to the war

rant re quireme

nt] all ows police to enter a residence withouta warra

nt if ther e is probable

cause to believ e there

is a burglary

in progr ess"); Reardon v. Wroan , 811 F.2d 1025, 1029-30 (7th Cir. 1987). "The need to prevent such a conf rontation, by interceptingthe burglar bef ore he potentially

confron ts (or is confronted by

) an occupa nt, is sure ly
anexigent circ umstance." In re Sealed Case , 153 F.3d at 767. Based on the foreg oing authority, our finding that the p olice ha

d probab le cause

to believ e that a

burglary was in progress is sufficient here, viewing the totality of the circumstanc es, to conclude tha t there were exigent circumstance s justifying Moore's warrantless, non conse nsual ent ry . As we no ted above , Moore ha d reasonable grounds to believe that a burglary was in pro gre ss and tha

t there w as an imme diate ne ed for hi s assistance. Alth ough the foregoing authority hol ds that prob able ca

use to bel ieve tha

t a burg lary

is in progre ss is suffic ient to fin d exigent circu

mstances justifying the

police's warrantless, nonconsensual entry, def endant urges u s to asses s Moore's actions by applying the Dorman

factor s. The Dorman factors are utilized to assess whether exigent circumstanceswere pr esent in cases involving serious crimes and a reasonable probability of imminent danger to life, serious da mage to p ro pe rt y, destructionof evidence, or the likelihood of flight. See People v. Yates , 98 I ll. 2d 502, 516 (1983). The Dorman

factors include whether: (1) the crime unde r investigation

was recently

committed; (2) there was any de liberate or unjustified delay by the police during

which time a warrant could have been obtained; (3) a grave offe nse was involved, particularly a cr ime of vio lence; (4) there was
reasona ble belief that the suspect was armed; (5) the police off icers were acting on a c lear showingNo. 2--07--0553

6 The Dorman

framew ork lends

itself toemergency

-type fa ct patterns. See Yates , 98 Ill. 2d at 516 ("exigent ci

rcums ta nc es ma y exist where there is only a se rious crime coupled with a
reasona ble possibility of imminent dang e r to life, serious damage to property , destruction of evidence, or the likelihood of flight"). In this respect, the first exigent-c ircumstances approach we discussed above is arguably an application of the Dorman factors to an emergency

situation. -17- of probable cause; (6) there was a likelihood that t

he suspect would escape if he or she was not swiftly apprehended; (7) there was strong reason to believe that

the suspect was on the premises; and (8) the police en tr y wa s m ad e p ea ce ab ly, albeit nonconsensually. Williams , 161 I ll. 2d at 26 ; Yates , 98 Ill. 2 d at 51 6, cit ing Dorman , 435 F.2d at 392-93. The foregoing list is not exhaustive, and the fundamental guiding principle is reasonableness. Williams , 16 1 Ill . 2d at 2 6. In dete rmining whether the police acted reasonably, we look to the totality of the circumstances confronting the officers at the time the entry was made. Williams , 161 Ill. 2d at 26. 6 Defendant

argue s that, ev en if

there was probable cause, Moore's war rantless entry into the apartm ent wa s made in the absence of exigent circumstance s. He asserts that the police had sufficient time to secure a wa

rrant; that this case did not involve a grave offe nse, such as murder, armed robb ery , or ass ault; that the police could not have reasonably believed that defendant was armed; that there was not a clear showing of probable cause beca use Condor was not credible; and that there w as no showing of any dange r that de fendant

would esc ape if no t immediate ly apprehended. Defendant contends that, at most, the offense was re cently committed and Moore made his entry

pe ac ea bl y. However, he asserts that these factors are insufficient to establish exigent circumstances.No. 2--07--0553

-18-

We disagree with defendant' s readingof the ev idence. As to the first Dorman factor, which defendant concedes, there was evidence here t hat a cr ime had been recently committed. Condor testified that a woman who lives across from apartment 4 told her on the morning of June 24, 2005, that someone was breaking into the unit. Condor saw defendant and Julio kicking in the apartment door, and she later saw defendant and Julio jumping out of a window. The door frame, accor ding to Condor, was broken. As to the second factor--whe ther there was a

deliberate or unjustified delay inobtaining a warrant--we disag ree with defendant that there was no showing that t here was insufficient

time to obtain

a warra nt. Moore

testifie d that he was conce rned tha t defend ant and Julio
were trespassing and possibly burglarizing the apartment. Given the nature o f the crimes that he suspected were being committed, we do not believe there was an unjustified delay by the police , during which time a warrant could have been obtaine d. As to the th ird and f ourth fa ctors, th at a grave offense was involved and that the suspect was arme d, we agree with defenda n t that those fac tors were no t presen

t here. T here wa s no evide

nce that defenda nt or Julio wa s armed, an d burglar y--the most serious offense Moore suspected might be occur ring in the unit--does no t constitute a grave offense (se e People v. Trull , 64 Ill. A pp. 3d 385, 390 (1978 )). As to t he fifth factor, we determined above that the police were ac ting on a clear showing of proba ble cause. As to the sixth factor, likelihood of escape, we believe that this factor was present, given the nature of the crimes that Moore suspected were being committed in the apartment, specifically trespass and burgla ry . The susp ects wer

e unlikel y to remain on the premises if they were committing either

of theseoffenses. A lthough t h ere was some evidence that defe ndant had lived at the apartment, the evidence also showed that he was banned from the complex an

d that he had to bre ak into the unit
onJune 24, 200 5, rathe

r than use

a key to enter it. This evidence l eans to ward a s howin g thatNo. 2--07--0553

-19-

defendant did not intend to stay in the unit for long. Fur thermore, the door was wide open when Moore approac

hed it, le ading to

an infer ence of haste. The sevent

h factor, belief that the suspect is
onthe prem is es, was s hown her e, wher e Condor t

estified that she o

bserved defenda nt and Julio breaking into the unit. Fina

lly, as to the e ighth

factor, that the police entered peac eably, def endant concedes this point and the eviden ce support s this inference. Moore testified that, when he approached

the apar tme nt , the door was wide open. He further testified that he knoc ked and announced his presence before he walked inside. Viewingthe totality of the circumstanc es, we conclude that Moore a cted r easonab ly in enterin g apar tment 4 and that there was an exigency to do so. Dammon testified that, on June 24, 2005, Condor ca

lle d him and to ld him that defendant was at the unit and that the door to the apartment had been kicked in. Moor e testified that Dammon told him that two individuals were trespassingat the apartment. Condor and Sanfillipo informed Moore that the two individuals were banned from the complex. Condor further informed Moore that defenda nt broke i nto the ap artment. When Moore ar

rived at apartme nt 4, the do or was wide op en and he suspected that there were persons inside the unit who were tr espassin g or bur glarizin g the ap artment. This evide nce supp orts a finding of exige nt circu mstance s. Defend ant's reliance on People v. Day , 165 Ill. App. 3d 266 (1988), is misplaced. In Day , State Police ag ents were c onducting an under cover dr ug buy . At a res idence i

n Normal, undercover agent Schap paugh met two individuals from whom she was going to purchase the dr ugs. The three drove to an apartment. One of the individuals, Gagliano, exited the van and w ent inside t he apartme nt. He emer

ged a short tim e la te r a nd re tu rn ed to th e v an . S ho rt ly a ft er th ey d ro ve aw ay, Schap paugh's vehicle

was stopped, and

a quantit y of cannab is was re covere d. The two individua

lsNo. 2--07--0553

-20-

were taken into custody, wher euponGagliano told another agent that he got the cannabis from the defenda nt, who was a student. He also informed the age nt that he had neve r seena firearm at the defendant's apartment. The agent and several surveillance team members returned to the apartment with Gagliano. Gagliano pointed out to them the exact apartment he had entered. One agent positioned himself at the rear of the residence, and three others went to the front. Two inspectors who were not in uniform knocked on the front door, and the defendant answered. The testimony conflicted as to whether one of the inspectors identified himself as a police officer. He asked if any one else was in the home, and the defendant answered that his roommate was upstairs. The defendant then stepped aside. The inspectors went upstairs to get the roommate, and one of the officers let

inside the agent who was positionedby the rea

r door. The agent gave the defendan t and his roommate a consent-to-search form, and they sig

ned it. He also read them their Miranda rights. The defe ndant app ealed from the denial of his motion to suppress evidence based on the
warran tless entry of the police

into his home. The court held that there was no exigency tha t justified the wa rr an tl es s e nt ry. Day , 165 Ill. App. 3d at 268. The court noted that, altho ugh th e defen dant's arrest took place almost immediately af ter the crime, there was no need for prompt pol ice action, because the defendant was unaware of the events that had trans pir ed; thus, h is immedia

te apprehension

likely was not nece ssary to preve nt flight or

the destruction

of evidence. Day , 165 I ll. App. 3d at 268. Further, the defendant was not suspected of a crime of violence and there was no evidence showing that he was armed or dangerous. Day , 165 Ill. App. 3d at 268. The court determined

that t he onl y factors i n the S tate's favor were that the officers acted quickly, that they had good cause to believe the defendant was on the premises, and that their entry wa s peaceable. Day ,No. 2--07--0553

-21-

165 Ill. App. 3d at

268-69. "To hold these factors alone sufficient to justify a warra

ntless entry and arrest would all b

ut emasc ulate the protect ion afforded by

the four thamendment. " Day , 165 Ill. App. 3d at 269. The court al so reject ed the Stat e's argument that the consent form provided an indepe ndent
source for the evidence disclosed i n the search. Day , 165 Ill. App. 3d at 269. The court held that the defendant's consent was not obtained until the office rs had already

made the illegal entry

and that "such consent is notsufficient ly attenuated from t he illegalit y as to remove the tai nt." Day , 165 I ll. App. 3d at 269. We find defend ant's reliance on Day to be misplaced because the Day defendant was unaware of the undercover activities that had transpired and the court concl uded that

his immedia

te apprehension

was not necessary

to prevent flight or the destruction of evidence ( Day , 165 Ill. App. 3d at 268). Here, Condor testified that she and the woman who lived across from apartment 4 had observed defen dant and Julio breaking into the unit. Further, Condor testified that, on two prior occasions, she had defendant removed from the property a

nd that defendant

would get in a car and drive away w

henhe saw th e manag ers. Thus, defendant was aware on June 24, 2005, that apartment management

objected to his presence on the propert y, a nd he had

a history

of run-i ns with management

wherein he would d

rive awa y w hen he sa w them. In contrast to Day , the factors here show that d

efenda nt's imme diate ap

prehens ion was ne cessar

y to prevent his fligh t. Insummary, we c onclude that , assuming defendant had an expectation of privacy in the apartment and, therefore, may

invoke the fourth amendment, the evidence supported a finding that Moore had reasonable grounds to be lieve that ther e was an emergency --a suspected burglary

--at hand and an immediate need for

his assistance for the protection of life or property , along with aNo. 2--07--0553

-22-

rea sonable

basis (here, actual probable cause ) to associate the emergency with the apart

ment
. Alth ough the a

pplic ation

of the emer gency exc e ption is dispositive, we also conclude that the evidence supported a finding of probab le cause and exigent circumstances (base d either solely on the basis that there was probable cause to believe that a burglary

was in progress or on the basis that there were both probable cause a nd exigent circumstances pursuant to Dorman ). B. Custodi al Arre st Defendant

argues second that, even if the police lawfully ente

red the apartment, they

had no probable cause to arrest him. To make a c o nstitutionally valid warrantless arr est, a police officer must have p robable caus e to effect the arrest. Love , 199 I ll. 2d at 27 8. Probab le cause to arre st exists when the

facts known to the officer at the time of the arrest ar e sufficient to lead a

reasona bly cautious person to believe that the arrestee has committed a c rime. Love , 199 Ill. 2d at 279. As we noted above, the existence of probable cause depe nds upon the totality of

the circumstances at the time of the arrest. Love , 199 Ill. 2 d at 279. Altho ugh the standard requires more than mer e suspicion, it does not require that at the time of the arr est the po lice hav e eviden ce suff icient to convict the defendant. People v. Moody , 94 Ill. 2d 1, 7 (1983). Courts must remain cognizant of the observation that the police " 'often must act upon a quick appraisal of the data before them, and the reasonableness of their conduct must be judged on the basis of the ir respo nsi bility to prevent crimeand to catch cri minals.' " People v. Jones , 31 Ill. 2d 42, 47 (1964 ), quo ting People v. Watkins , 19 Ill. 2d 11, 19 (1960). In determining the va lidity of a warra ntless ar rest, our review necessa

rily focuses on the information available to the police before the arrest. People v. Belton , 257 I ll. App. 3d 1, 6 (1993).No. 2--07--0553

-23-

Here, defenda

nt argu es that Mo ore had n

o probab le cause

to arre st him. He asse rts that, althou gh Moore te stified that he susp ected de fendant had commi

tted burglary

or tresp ass to residence, Pollock had learned by the time defendant was arres ted that Antonio had invited defendant to live at the apartment and that Antonio wa s the lea seholder . Defen dant also chall enges M oore's testimony on the basis that it came from "self-serving inf ormants with a motive to f als ify information." Further, defenda nt also takes issue with his arrest on the basis that Moore did notobserve or encounter facts and c ircumstances such that he could reasonab l y believe that defendant was committing an offense. Defendant notes that Moore first saw Julio's feet protruding fromthe closet, and he handcuffed Julio. Subsequently , M oo re saw defendant emerg e from the bathroom , and he handc uffed d efenda nt. As sumi ng that the handcuffing effected an arrest, def

endant urges that mere proximity to a nother is an insufficient ground upon which toarrest. He notes that Moore never stated

that he had a description of the alleged intrude rs; he never stated that defendant acted suspiciously or attempted to flee; he ne ver h addefendant step outside so that the managers could identify him; and he never asked Antonio if defendant was permitted to be there. Defendant argu es that, abs ent such a n investig ation, Moore mere ly had the se lf-serv ing stat ements of th e apartment employe es, which were insufficient to establish probable cause
. We conc lude that the facts known to Moore at the time he handcuffe d defendant were sufficient to have led a reasonably

cautious person to believe that defendant had committed a crime. At that time, Moore knew from Dammon that the apartment manag er had complained that the apartment door had been kicked

in. Both Dammon and Parker told Moore that defendant had be en banned from the complex and did not live there. At the complex, Condor told Moore that defendant had been banned from the property and that he and the other individual were trespassing. At the unit,No. 2--07--0553

-24-

Moore found the door open. Condor told him that defendant and his companion had run inside after breaking into the un

it. Moore

stated tha

t he suspe cted tha

t the peop le in side th e apartment were trespassingor burglarizing the apartment. Once inside, Moore observed Julio's feet protruding from a closet and

did not initially observe defenda nt, facts from which it was reasonable to assume that the men were try

ing to escape detection. Moore formally a rrested defendant before Ant o nio informed police that defendant had permission to be in the unit. Based on this evidence, Moore had probable cause to arrest defenda nt for trespass or burglary
. C. Search of Box Defend ant's final argument is that, even if thepolice ha d probab le cause

to arrest him, they did not have probable cause or any other basis to search the box where he kep t his wa llet and identific ation. We c onclude t hat defe ndant for feited th is argu ment. As the State notes in its brief, defendant did not raise the issue in the trial cou rt in eithe r his motion to quash

and suppress or his motion to reconsider. A defendant forfeits an issue for purposes of appeal where he or she fails to raise it throug h both an objectionand a posttrial motion. People
v. Robinson , 167 Ill. 2d 397, 404 (1995). Furthermore, in his briefs to this court, defendant doe s not address his failure to raise the search issue in the trial court and he does not ask thi s court to

review the issue for plain error. I ndeed, defendant does not at all address the forfeiture arg umen t. We conclude that defendant forfeited the searc h issue. See 210 I ll. 2d Rs. 34 1(h)(7) (points not argued
are wa ived), 61 2(i); People v. Nieves , 192 Ill. 2d 487, 503 (2000). III. CONCL

USION For the foregoing r

easons, the judgment of the circuit court of Boone County is affirmed. Affirmed.No. 2--07--0553

-25-

SCHOSTOK, J., concurs. JUSTICE O'MAL LEY, special ly c oncurri

ng: Iagreewith the ma

jority that it was rea sonable f

or the pol ice to en

ter apa rtment 4, c anvass it, and arr est de fendan t, all with out a w arrant . This case pr esent s a str aigh tforwa rd application of what the major ity recognizes as the "emerg ency" exception. Officer Moore's rea sonable belief that
a burgla ry , with all it s attenda

nt dang ers, was occurring in apartment 4 sufficed by itself to justify his warrantless entry

into the apartment. So the majority conc ludes early on. Slip op. at 9-11. Thi s should have ended the matter, but the majority goes on to apply

the Dorman

test, whic h is inapposit

e to an emergency

situation posed

by a n ongoin g crime presenting an immediate threat to persons or property. The Dorman

"exigency " exception and the "emergency " exception are both outgrowths of the princ i ple that a warrantless entry for search, seizure, or arrest is permissible wher e " 'the inevitab le delay incident to obtaining a warrant must give way to an urgent need for immediat e action.' " United Sta

tes v. Sant

a , 236 F. 3d 662, 669 (11th Cir. 2000) , quot ing United States v. Burgos , 720 F.2d 1 520, 1526 ( 11th Cir. 19 83). Eac h exception, howeve

r, serve s a distinct valu e: "The 'emergency

' exception stems from

the police officers' 'c ommunity caretaking function' and allows the

m 'to re spond to emergency situations' that threaten life or limb; this exception does ' not[derive f

rom] police

office rs' fun ction as c riminal in vestigators .' [Citat ion.] By contras t, the 'exigency

' exception does derive from the police office rs' investigatory

function; it allows the

m to enter a

home without a warrant if they have both probable cause to believe that a crime has been or is being committed and a r easonabl e belief

that their

entry is 'necessary to prevent *** the destruction of relevant evidence, the esc ape of the suspect, orNo. 2--07--0553

-26-

some other conse quenc e impr operl y frustrat ing legi tima te law enforcement efforts.' [Citat ion.]" (Emphasis in original.) Hopkins v. Bonvicino , 573 F.3d 752, 763 (9t h Cir. 2009). In Dorman : "The issu e [wa s] w hether the police acted unreasonably , and in violation of constitutional rights, when they procee ded, in fu

rthera nce of their obje ctive to a rrest a suspect they had proba

ble cause to believe was an arme d felon, t o make a warrant

less, unconsented, non-for

cibleentry

into his home

late in the

evening , at a time

some few hours after the offense andwithin an hour after they obtained eye

witness identification of the suspect, an d when a magist rate was not rea dily available." Dorman , 435 F.2d at 388. Dorman crafte d its factor s as aids in determining whether exigency exists "where the entry

is for the purpose of making an

arrest of a sus pected felon. " Dorman , 435 F.2d at 390. The factors thus have been used to elaborate the decree in Payton v. New York , 445 U.S. 573, 576, 590, 63 L. Ed. 2d 639, 644, 653, 100 S. Ct. 1371, 1374, 1382 (1980), that the fourth amendment "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest," i.e. , that

"[a]bsent exigent c ircumsta

nces [or c onsent], [the ] threshold [of the home] may not reas onably

be crossed without a warrant." (Emphasis adde d.) See People v. Abney , 81 Ill
. 2d 159, 168 ( 1980) (noting tha t Payton did not attemptto define exigent circumstances but finding guidance in Dorman ). Illinois courts have continued to apply the Dorman

factors in jud gin g "exigency in circumstances involving warrantless entry into a private residence to effectuate an arrest." People v. McNeal , 175 Ill. 2d 335, 345 (1997).No. 2--07--0553

-27-

The Dorman

test is a poor fit for

emerg ency

scenar ios that involve ong oing cr ime, bec ause the te s t presupposes a completed crime. Dorman 's first factor is whether "the c rime under investigation

was recent

ly committed" (emphasis added) ( Williams , 161 Ill. 2d at 26), not whether the crime was simply complete. See 3 W. LaFave, Sea rch & Seizure §6.6, at 450-51 (4th ed. 2004) (noting that Payton

and its progeny

are "concerned with the e ntry of private [proper

ty] by police for the purpose of arresting a person thoug ht to be within or for the purpose of finding the fruit s, instrumentalities or evidence of some past crime " and noting that "c learly

police ha ve occa sion to enter premises without a warrant for a variety of other purposes" (emphasis added)). The Dorman factors attempt to

strike a b alance

betwee n two gov ernment

al and soc ietal inte

rests: maintaining the sanctity of the dwelling and apprehending with all due swiftness a suspect believed to be within that dwell ing. The conc ern for the integ rity of the home is perhaps most explicit in the factor of whether "the police en try was made peaceably, albeit n onconsensu ally" ( Williams , 161 Ill. 2d at 27). Where, however , there i s ongoing crime tha

t supports "a rea sonable b elief tha

t immediate actionis necessary

for the purpose of providing aid to personsor property in ne ed thereof" ( People
v. Griffin , 158 Ill. App. 3d 46, 50 (1 987)), the ana lysis is radically simplified. The emergency exception shows no ov ert conc ern for the priva

cy of the pla

ce to be e

ntered; that inter

est is overri dden by t

he urg ency

posed, su

bject to the requir

ement of "some r

easonab le basis, approximating probable

cause, t o associa te the eme

rgenc y with the ar

ea or pla ce to be s earched" ( Griffin , 158 Ill. App. 3d at 51). See United States v. Snipe , 515 F.3d 9 47, 952 n.6 (9th Cir. 2008) (refusing to incor porate Dorman

factor of "gravity

of the underlying

offense" into the emerge ncy exception because it would lead office rs to weigh the degree of the emergency

while deciding whether to obtain a

warran t, and henc e would da

ngero usly slow resp onse time) ; State v. Bar boza ,No. 2--07--0553

-28-

57 Wash. App. 822, 830, 7 90 P .2d 647, 651 (1990) ( Dorman not applicable because its factors "apply to entries made to effect an arre st, such as in a situation of 'hot pursuit,' " but the case at hand "involve[ d] entry made to res cue any injured person s and for the s afety of the public an d police")
. The majority

not only applies the inappos ite Dorman factors but makes a finding under the factors that is in te

nsion with

it s pr io r co ncl usi ons und er t he e mer gen cy ex cep ti on. In applying the emerg ency

except ion, the majority concluded that Moore 's belief that "a suspected burg lary" was occurring in apart ment 4 ga ve him ca use to believe "there was an immediate need for his assistance for the protection

of life or property " and permitted him to enter without a warrant. Slip op. at 10. Under the Dorman

factors, however, the majority finds that "burglary

--the most ser i ous offe

nse Moore suspected might be occurring in the unit--doe s notconstitute a grave offense." Slip op. at 18. Ifail to see how an ongoi ng burglary co uld suffice, without more, to allow warrantless entry to a dwelling yet not be a "grave o ffense." This tension becomes more prominent given the majority's be lief that there are two distinct exigency t ests. "The first approach concludes that e xigent circumstances are present if ther e i s probable cause to believe that a bur

glary is in progress," while "[t]he second approac h utilizes the Dorman factors." Slip op. at 15. Hence f or the majority, an ongoing burglary is not a "grave offense" under one exigen cy test, y et, under another exigenc y te st, it is suf

ficient i n itself to permit
a warrantless entry . If the case law does indeed reach

such dive rgent c onclusion s, the majority ought to choose a side ra ther tha n adopt tha

t dichotomy

into its ana

lys is. Better

ye t, the majority

should have been content to apply the emergency

exception alone.