Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  December 8, 2017                                                                    Stephen J. Markman,
                                                                                                 Chief Justice

                                                                                            Brian K. Zahra
                                                                                    Bridget M. McCormack
  152567                                                                                  David F. Viviano
                                                                                      Richard H. Bernstein
                                                                                           Kurtis T. Wilder
                                                                                     Elizabeth T. Clement,
                                                                                                      Justices
  PEOPLE OF THE STATE OF MICHIGAN,
            Plaintiff-Appellee,
  v                                                        SC: 152567
                                                           COA: 317527
                                                           Oakland CC: 2012-241894-FH
  DANIEL HORACEK,
           Defendant-Appellant.

  _________________________________________/

        On November 7, 2017, the Court heard oral argument on the application for leave
  to appeal the September 15, 2015 judgment of the Court of Appeals. On order of the
  Court, the application is again considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

         MARKMAN, C.J. (concurring).

         I concur in this Court’s order denying leave to appeal. I write separately only to
  emphasize that in determining whether there are exigent circumstances that justify a
  warrantless entry into a residence to arrest a suspect, the determinative question is
  “whether a law enforcement officer was faced with an emergency that justified acting
  without a warrant . . . .” Missouri v McNeely, 569 US 141, 149 (2013). While this Court
  has laid out factors for a court to consider in making this determination, see People v
  Oliver, 417 Mich 366 (1983), courts should avoid assessing these factors in a mechanical
  manner that distracts from this determinative question.

          In Oliver, this Court recognized that “the validity of a warrantless arrest in a motel
  room is not without limitations in that it depends upon the reasonableness of the officer’s
  response to the situation perceived as requiring immediate action. The question is
  whether a reasonable person would have perceived a need to immediately secure the
  motel room.” Oliver, 417 Mich at 383.1 This Court then went on to set forth “a number
  of factors [that] have been identified which are used in determining whether an exigency
  exists.” Id. at 384. These factors include:



  1
    While Oliver considered this issue in the context of a warrantless entry into a motel
  room, this reasoning applies with equal, if not greater, force to a warrantless entry of a
  private home.
                                                                                          2

               (1) whether a serious offense, particularly a crime of violence, is
       involved; (2) whether the suspect is reasonably believed to be armed; (3)
       whether there is clear showing of probable cause; (4) whether strong reason
       exists to believe the suspect is in the premises being entered; (5) whether
       there is a likelihood that the suspect will escape if not swiftly apprehended;
       (6) whether the entry is forcible or peaceful; and (7) whether the entry is at
       night.

        . . . In addition to these factors, there are other factors such as: (1)
       preventing the destruction of evidence, (2) ensuring the safety of law
       enforcement personnel, (3) ensuring the safety of citizens, and (4) the
       ability to secure a warrant. In short, all these factors weigh in allowing
       action without warrants by police. Each case, however, must be judged on
       its own facts. [Id. (citation omitted).]

While all these factors are relevant to making a determination of exigent circumstances,
they are not all relevant in the same way and they are not all relevant in every case. See,
e.g., People v Blasius, 435 Mich 573, 589 (1990) (stating that the Oliver “factors (at best)
provide guidance in cases of arrests without warrants”) (emphasis added). Indeed, some
are also confusingly imprecise. For example, “whether there is a clear showing of
probable cause” and “whether strong reason exists to believe the suspect is in the
premises being entered” are effectively threshold inquiries-- an officer must have
probable cause and a strong reason to believe that the suspect is on the premises being
entered before the officer can enter onto the premises in the first place in order to arrest
without a warrant-- but these do not necessarily support a conclusion that “immediate
action” is required. See, e.g., In re Forfeiture of $176,598, 443 Mich 261, 266 (1993)
(noting that the exigent-circumstances exception to the warrant requirement “still requires
reasonableness and probable cause”); United States v Vasquez-Algarin, 821 F3d 467, 480
(CA 3, 2016) (holding that “law enforcement . . . may not force entry into a home based
on anything less than probable cause to believe an arrestee . . . is then present within the
residence”). Similarly, whether the entry is forcible or peaceful and whether the entry is
during the day or during the night may be relevant to the overall reasonableness of an
officer’s warrantless entry to arrest a suspect, but these considerations again are not
necessarily relevant to whether “immediate action” was required. See, e.g., People v
Burrill, 391 Mich 124, 134 n 18 (1974) (explaining that courts consider whether “the
entry can be made peaceably although in proper circumstances forcible entry might be
justified”); Wilson v Arkansas, 514 US 927, 934 (1995) (holding that “the method of an
officer’s entry into a dwelling [is] among the factors to be considered in assessing the
reasonableness of a search or seizure”); United States v Kelley, 652 F3d 915, 917 (CA 8,
2011) (stating that “we have little doubt that in some circumstances an officer’s night-
time entry into a home might be unreasonable under the Fourth Amendment”).
                                                                                                               3


        Other factors listed in Oliver are likely to be dispositive on their own. If officers
have probable cause to believe that evidence would be destroyed, or that law enforcement
personnel or the public are presently endangered, a warrantless entry might well be
justified on the basis of those facts alone. See, e.g., Kentucky v King, 563 US 452, 460
(2011). On the other hand, if officers have the “ability to secure a warrant” before
entering the premises without suffering an adverse consequence, a warrantless entry
might well be unjustified by those facts alone. See, e.g., Birchfield v North Dakota,
__US__; 136 S Ct 2160, 2173 (2016) (“The exigent circumstances exception allows a
warrantless search when an emergency leaves police insufficient time to seek a
warrant.”); Michigan v Tyler, 436 US 499, 509 (1978).

        In sum, in determining whether exigent circumstances justify a warrantless entry
to arrest a suspect, courts should only use the Oliver factors as tools to determine
whether, under the totality of the circumstances, exigent circumstances required
immediate action, rather than examining each factor individually and then balancing them
in some uncertain manner. Blasius, 435 Mich at 589; United States v Moreno, 701 F3d
64, 73 (CA 2, 2012) (holding that similar factors “are not germane in every exigent
circumstances situation,” that they “are merely illustrative, not exhaustive,” and that
“[t]he core question is whether the facts, as they appeared at the moment of entry, would
lead a reasonable, experienced officer to believe that there was an urgent need to render
aid or take action”) (quotation marks and citations omitted). Once again, the assessment
of the totality of the circumstances must be undertaken pursuant to the following ultimate
standard: “whether a law enforcement officer was faced with an emergency that justified
acting without a warrant[.]” McNeely, 569 US at 149.


       WILDER, J., did not participate because he was on the Court of Appeals panel.

       CLEMENT, J., did not participate.




                         I, Larry S. Royster, 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.
                         December 8, 2017
       s1205
                                                                             Clerk
