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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, UNPUBLISHED November 20, 2014

v No. 317242
Ottawa Circuit Court JEREMY DSHAWN WEATHERSPOON, LC No. 13-037212-FH

Defendant-Appellee.

Before: B OONSTRA , P.J., and D ONOFRIO and G LEICHER , JJ.

P ER C URIAM

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Following a preliminary examination, the di strict court bound defendant over on charges of resisting and obstructing an officer, MCL 750.81d(1), and dome stic violence, MCL 750.81(2). Defendant sought to quash the information in the ci rcuit court, arguing that the officers illegally entered his dwelling. The circuit court agreed and the prosecutor now appeals. Because exigent circumstances and the need to provide emergenc y aid supported the warrantless entry, we reverse and remand for continued proceedings.

I. BACKGROUND

At defendant’s preliminary examinati on, Ottawa County Sheriff’s Deputy Tyler
VanDoeselaar testified that he responded to an early morning report of a possible domestic violence situation. The deputy approached the subject apartment and “heard multiple male and female voices inside arguing.” The voices “so unded to be yelling amongst each other” and “it sounded heated.” Deputy VanDoeselaar knocke d, “but no one came to the door and all the voices inside quieted.” Two othe r deputies arrived on the scene, they continued to knock on the door and announced their identity for approximately 20 minutes, to no avail. At one point, the deputies observed a female peek thr ough the blinds and then disappear.

Deputy VanDoeselaar spoke to the individu al who had contacted 911. That individual confirmed “that a domestic [sic] had possibly occurred with a child involved.” 1 The deputies

1 The victim testified at the preliminary examination that de fendant was her boyfriend. She alleged that he assaulted her when she tried to l eave with her infant and physically forced her to reenter the apartment against her will.-2- then knocked and announced again and warned that if the residents did not answer, the deputies “would break the door down.” Ultimately, the depu ties resorted to kicking in the door. There was an approximately 30-minute delay between th e first deputy’s arrival and the entry into the apartment. Inside, the deputies secured defe ndant and his brother wh ile they interviewed defendant’s girlfriend, the victim of the domestic violence. Defendant was uncooperative and physically resisted, resulting in th e resisting and obstructing charge.

After the district court bound defendant over on charges of domestic violence and resisting and obstructing, defenda nt filed a circuit court moti on to quash the information. Defendant argued that the domestic violence re port combined with arguing voices inside an apartment were insufficient grounds “to justify a warrantless, forcible and nonconsensual entry”
into defendant’s residence. The circumstances did not rise to a level of exigent circumstances, in defendant’s estimation. As the entry was illegal, defendant continued, his arrest was illegal and defendant was within his right to resist that arrest. See People v Moreno , 491 Mich 38; 814 NW2d 624 (2012).

The circuit court conducted a hearing based on the evidence developed at the preliminary examination. The circuit court quashed the information, ruling:

In this case, however, the Court is convi nced that, because the police heard no specific threats and because the noise in side the building had subsided and had done so for 20 minutes, the Court believes that the officers could have and should have obtained a warrant for entry, and that . . . the arrest of the defendant is tainted by the illegal entry, a nd he had the right to resist . . . an illegal arrest.

This appeal followed.

II. ANALYSIS

The prosecutor first contends that the circuit court abused its discretion in failing to conduct an evidentiary hearing on defendant’s motion to quash, instead relying solely on the preliminary examination testimony. See People v Unger , 278 Mich App 210, 216-217; 749 NW2d 272 (2008) (noting that pr eserved challenges to the failure to conduct an evidentiary hearing are reviewed for an abus e of discretion). The prosecutor raised no objection to this practice below, and our review is therefore limite d to plain error affecti ng substantial rights. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1990). MCR 6.110(D) permits the parties in a criminal action to rely on preliminary examination testimony in a post-examination
motion to exclude evidence. See People v Kaufman , 457 Mich 266, 275-276; 577 NW2d 466 (1998) (holding that the parties in a criminal action may stipul ate to resolving a motion to suppress on the preliminary examination transcri pt). Defendant’s motion to quash specifically indicated his reliance on the preliminary examin ation testimony alone. Absent a request from the prosecutor for a separate hearing, we can dis cern no error on the circuit court’s part in this regard.-3- The prosecutor also challenges the substance of the circuit court’s decision to quash the information. We review the decision to qua sh for an abuse of discretion and underlying “interpretation of the law relate d to [the] decision” de novo. People v Waterstone , 296 Mich App 121, 152-153; 818 NW2d 432 (2012).

The prosecutor contended below that the deputies were require d to conduct an “emergency entry into the residence” because th ey were “[c]oncerned about the welfare and wellbeing of both the female victim in this case and the child.”

Both the United States and Michigan Constitutions guarantee the right against unreasonable searches and seizur es. US Const, Am IV, and Const 1963, art 1, § 11. The lawfulness of a search or seizure depends on its reasonableness.
Illinois v McArthur , 531 U.S. 326; 121 S Ct 946; 148 L Ed 2d 838 (2001); People
v Snider , 239 Mich App 393, 406; 608 NW2d 502 (2000). As a general rule,
searches conducted without a warrant ar e per se unreasonable under the Fourth Amendment unless the police conduct fa lls under one of the established exceptions to the warrant requirement. People v Borchard-Ruhland , 460 Mich 278, 293-294; 597 NW2d 1 (1999); People v Davis , 442 Mich 1, 10; 497 NW2d 910 (1993); Snider , 239 Mich App at 407. [ People v Beuschlein , 245 Mich App 744, 749; 630 NW2d 921 (2001).]

Relevant to this appeal, an “established excep tion[] to the warrant requirement” exists in the presence of “exigent circumstances.” In re Forfeiture of $176,598 , 443 Mich 261, 266; 505 NW2d 201 (1993).

Pursuant to the exigent circumstances exception, . . . the police may enter a dwelling without a warrant if the officers possess probable cause to believe that a crime was recently committed on the premises, and probable cause to believe that the premises contain evidence or perpetrato rs of the suspected crime. The police
must further establish the existence of an actual emergency on the basis of specific and objective facts i ndicating that immediate action is necessary to (1) prevent the imminent destruction of evid ence, (2) protect the police officers or others, or (3) prevent the escape of a suspect. [ Id. at 271.]

“Probable cause,” as required to justify a warrantless entry, “exists when the facts and circumstances known to the police officers at th e time of the search would lead a reasonably prudent person to believe that a crime has been or is being committed and that evidence will be found in a particular place.” Beuschlein , 245 Mich App at 750.

Here, the Ottawa County Sheriff’s Department received a 911 call reporting a possible domestic assault. Upon arrival, Deputy VanD oeselaar heard a heated argument inside the apartment. Yet, the occupants refused to answ er the door even after the deputy identified
himself as a law enforcement official. Shortl y thereafter, deputies obs erved a female peeking from the window blinds. Deput y VanDoeselaar conferred with the reporting individual and learned that a child may be invol ved in the domestic assault situa tion. The information available to the deputies was sufficient to create “proba ble cause to believe that a crime was recently committed on the premises” and that the perpetrator and victim were inside the apartment. In re-4- Forfeiture , 443 Mich at 271. The available information also “establish[ed] the existence of an actual emergency” necessitating “immediate act ion” to protect the victim and child. Id.

Defendant contends that the 30-minute dela y between Deputy VanDoe selaar’s arrival and the entry negates any finding of exigent circumstan ces. We will not adopt a rule that prevents law enforcement officials from taking immediate act ion to protect citizens simply because they first investigated the situation to avoid a rash and unnecessary result. In this regard we find instructive the opinion of the Court of Appeals for the Tenth Circuit in United States v Najar

, 451 F3d 710 (CA 10, 2006). 2 In Najar , the officers responding to the scene of a reported domestic assault waited to force entry until they had knocked several times on the door, conducted a perimeter search, and attempted tele phone contact with the home’s occupants. Id. at 716-717. The Tenth Circuit held, “A delay caused by a reasonab le investigation into the situation facing the officers does not obviate the existence of an emergency.” Id. at 719. Rather than use the delay to exclude evidence from the warrantless search, the court commended the officers: “[T]he delay was due to the officers’ repeated and incr easingly vigorous attempts to make contact with the person they could see inside. To their cred it, they did not simply batter down the door. We applaud their restraint and circumspection.” Id.

The prosecutor also relies on the “emergency-aid exception” to the warrant requirement. Under this exception, “police officers [may ] enter a dwelling without a warrant under circumstances in which they reasonably believe, based on specific, articulable facts, that some person within is in need of immediate aid.” People v Tierney , 266 Mich App 687, 704; 703 NW2d 204 (2005). “[T]he entry must be limited to the justification theref or, and the officer may not do more than is reasonably ne cessary to determine whether a pe rson is in need of assistance, and to provide that assistance.” Beuschlein , 245 Mich App at 756.

The deputies arrived at the scene of a domestic assault in which a woman and infant were placed in danger. All information led to the conc lusion that the woman and child were inside the apartment. Arguing was heard when the deputie s arrived. The quieting of the argument upon
the announcement of law enforcement’ s arrival did not nece ssarily reflect the end of the conflict, as defendant suggests, but could just as easily have signified an unlawful imprisonment of the woman and child, as noted by the prosecutor. Moreover, the deputies did not exceed the scope of action permitted under the exception. It was r easonable to handcuff defendant and his brother while the deputies interviewed the victim. See Brendlin v California , 551 US 249, 258; 127 S Ct 2400; 168 L Ed 2d 132 (2007) (“It is . . . reasonable . . . to expect that a police officer at the scene of a crime, arrest, or i nvestigation will not let people move around in ways that could jeopardize his safety.”)

2 Lower federal court decisions are not binding, but we may consider them persuasive. People v Fomby , 300 Mich App 46, 50 n 1; 831 NW2d 887 (2013).-5- Ultimately, the deputies’ warrantless entry into defendant’s apartment was justified under two separate exceptions to the warrant requireme nt. As the entry was legal, the evidence uncovered regarding the domestic violence is admi ssible and defendant was not entitled to resist
arrest as described in Moreno . The circuit court therefore abus ed its discretion in quashing the
information.

We reverse and remand for further proceed ings. We do not retain jurisdiction.

/s/ Mark T. Boonstra
/s/ Pat M. Donofrio
/s/ Elizabeth L. Gleicher