Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  June 22, 2012                                                                    Robert P. Young, Jr.,
                                                                                             Chief Justice

  144531                                                                           Michael F. Cavanagh
                                                                                         Marilyn Kelly
                                                                                   Stephen J. Markman
                                                                                   Diane M. Hathaway
  PEOPLE OF THE STATE OF MICHIGAN,                                                     Mary Beth Kelly
            Plaintiff-Appellee,                                                        Brian K. Zahra,
                                                                                                  Justices
  v                                                      SC: 144531
                                                         COA: 301618
                                                         Saginaw CC: 10-034038-FH
  WILLIAM CLYDE HENIX, II,
             Defendant-Appellant.
  _________________________________________/

         On order of the Court, the application for leave to appeal the January 10, 2012
  judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), we
  AFFIRM that part of the Court of Appeals judgment holding that the defendant failed to
  demonstrate that his trial counsel was ineffective. Defendant argues that his trial
  attorney’s performance fell below an objective standard of reasonableness in failing to
  move to suppress physical evidence seized from the house, as well as the defendant’s
  inculpatory statements to the police during questioning inside the house. However, even
  if this evidence were to be suppressed, considering the weight and strength of the
  untainted evidence presented at trial, the defendant cannot demonstrate a reasonable
  probability that, but for counsel’s error, the result of the proceeding would have been
  different. See Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d
  674 (1984); People v Carbin, 463 Mich 590, 599-600 (2001). In light of this, we
  VACATE as unnecessary that part of the Court of Appeals judgment holding that the
  defendant’s Fourth Amendment rights were not violated when the police officers forcibly
  entered the house where the defendant was staying. In all other respects, leave to appeal
  is DENIED, because we are not persuaded that the remaining question presented should
  be reviewed by this Court.

        CAVANAGH, J. (concurring in part and dissenting in part).

        I concur with the order that in light of the remaining untainted evidence, defendant
  cannot demonstrate a reasonable probability that, but for counsel’s error of failing to
  move for suppression of the illegally acquired evidence, the result of the proceeding
  would have been different.
                                                                                                               2


        I respectfully dissent, however, from that portion of the order vacating as
“unnecessary” the Court of Appeals’ judgment holding that defendant’s Fourth
Amendment rights were not violated when the police kicked open the door of the house
where defendant was staying and entered without a warrant. Rather, I would reverse the
Court of Appeals on this issue because the record fails to demonstrate that the officers
were in hot pursuit of a fleeing suspect or that any exigent circumstances justified a
warrantless entry into the house to make a routine felony arrest. See Payton v New York,
445 US 573, 598, 590; 100 S Ct 1371; 63 L Ed 2d 639 (1980); Minnesota v Olson, 495
US 91, 100; 110 S Ct 1684; 109 L Ed 2d 85 (1990). Indeed, when the police officers first
observed defendant leaving the scene of the crime, they initiated no pursuit, nor did they
even attempt to make contact with defendant. It was only after confirming that a crime
had occurred and running a computer check on the license plates from the vehicle
defendant was driving that the police proceeded to the home where defendant was
staying. By the time the police arrived at the home, defendant had already arrived,
parked the vehicle, and entered the house. In short, “there was no immediate or
continuous pursuit of [defendant] from the scene of a crime.” Welsh v Wisconsin, 466
US 740, 753; 104 S Ct 2091; 80 L Ed 2d 732 (1984). Further, Officer Ken Bluew
testified that several officers were stationed around the house to prevent escape and there
was no indication that defendant was armed or posed a danger to anyone inside the home.
Thus, there was no reason that the officers could not have secured a search warrant before
entering the home.

      In my view, the majority errs by determining that the Court of Appeals’
conclusion that defendant’s Fourth Amendment rights were not violated was
“unnecessary.” Because one of defendant’s claims of ineffective assistance is predicated
on the conclusion that his Fourth Amendment rights were violated, I believe it is
necessary for this Court to reverse the Court of Appeals’ conclusion to the contrary.

      MARILYN KELLY, J., joins the statement of CAVANAGH, J.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         June 22, 2012                       _________________________________________
       s0619                                                                 Clerk
