second and third floors. He also located a bullet hole in the door of apartment #301.
It was not until approximately 10:45 p.m. that Officer Knowles was advised by Detective Gatewood via radio transmission that a consent to examine the apartment had been obtained. When so advised, Officer Knowles entered the apartment to look for evidence concerning the shooting. It was Officer Knowles' belief that a burglary had taken place in apartment #203 and that Mr. Mason had surprised the burglars when he arrived home. With this in mind, Officer Knowles and his partner Officer Genise began to look through the apartment for evidence which would hopefully help to identify the perpetrators. Fingerprints and photographs were taken in every room.
While in one of the bedrooms, Officer Knowles came across a plastic bag which appeared to contain a controlled substance. The bag was found protruding out from under one of the pillows on the top bunk bed. Officer Knowles testified that the substance appeared to be a large cake of crack cocaine. Officer Knowles continued his search and discovered three other items of significance: 1) a locked safe on top of one of the beds; 2) 74 small baggies containing a greenish substance; and 3) traces of a white powder were found in an ashtray along with a single-edge razor blade.
Officer Knowles took control of the packages which he believed to contain controlled substances. Officer Knowles did not, however, attempt to open the locked safe. Rather, he went back to Detective Gatewood and advised him that it would be appropriate to either obtain a search warrant or another consent before opening the safe. Detective Gatewood thought it proper to contact a vice-officer since a significant quantity of "drugs" had been discovered in the apartment. Accordingly, vice officer Charles Porter was called to apartment #203.
Officer Porter arrived at approximately twenty minutes to 11:00 p.m. Upon entering apartment #203, he encountered Officer Knowles and a young woman who he later learned was Mr. Mason's sister, Jacqueline Tate. Ms. Tate had come to the apartment after having learned that her brother had been injured. While Ms. Tate was in the apartment, the telephone rang and she answered it. The phone call was from Mr. Mason who was awaiting treatment at the hospital. Officer Porter asked to speak with Mr. Mason. Officer Porter got on the phone and advised Mr. Mason that the police had located a safe and that they wanted to open it. He further advised Mr. Mason that there were two options available: 1) the police could obtain a search warrant; or 2) Mr. Mason could consent to it being opened. After the conversation ended, Officer Porter and Detective Gatewood left to see Mr. Mason at Southeast Hospital to obtain his consent and the key to the safe.
The officers arrived at Southeast Hospital at approximately 11:00 p.m. The officers encountered Mr. Mason, who was seated in a wheel chair, at the registration counter. Although Mr. Mason had been shot in the leg, his wound was not life threatening. In order to meet with him privately, the officers brought him into a room near the rear of the registration area and presented him with a second consent form for his signature. Officer Porter testified that he "explained . . . everything to make sure that he was not coerced and everything as far as the consent to search." Porter, Trans. March 2, 1990, at 36. Mr. Mason signed the consent and provided the officers with the key to the safe. The officers returned to apartment #203 and opened the safe. Several zip-lock bags containing a white rock substance and approximately $ 1000.00 in cash were discovered. After this discovery was made, officers again returned to the hospital and placed Mr. Mason under arrest. At that point, for the first time, Mr. Mason was advised of his constitutional rights.
CONCLUSIONS OF LAW
The Fourth Amendment provides that "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 describing the place to be searched, and the person or things to be seized . . ." The Supreme Court has consistently held that the Fourth Amendment only prohibits unreasonable searches and seizures. See Maryland v. Buie, 494 U.S. 325, 108 L. Ed. 2d 276, 58 U.S.L.W. 4281, 4282, 110 S. Ct. 1093 (1990); Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 109 S. Ct. 1402, 1414, 103 L. Ed. 2d 639 (1989). In evaluating the reasonableness of a challenged governmental action, it is necessary to balance the intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. United States v. Villamonte-Marquez, 462 U.S. 579, 588, 77 L. Ed. 2d 22, 103 S. Ct. 2573 (1983); Delaware v. Prouse, 440 U.S. 648, 654, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). A search of a house, apartment, or office is generally unreasonable without a warrant issued on probable cause. The Court has consistently expressed a preference for the use of search warrants. United States v. Ventresca, 380 U.S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965). "Resort to the warrant process, the Court has declared, is to be preferred because it 'interposes an orderly procedure' involving 'judicial impartiality' whereby 'a neutral and detached magistrate' can make 'informed and deliberate determinations' on the issue of probable cause." 1 LaFave, Search & Seizure, § 3.1(b), 548-49 (1987) (citations omitted).
A. The Initial Warrantless Entry
Defendant first argues that the police officers violated his Fourth Amendment rights when they initially entered his apartment without a warrant. Although the testimony elicited at the suppression hearing failed to establish that the officers who initially entered the apartment found any narcotics, defendant contends that this can not be reconciled with the testimony of those officers who subsequently entered the apartment and who stated they saw narcotics in "plain view" on the bed in what later turned out to be the defendant's room.
Based on the record, this argument is without merit. The officers who entered the apartment in search of the gunmen could indeed have missed seeing the narcotics. They were not in search of drugs, rather they were after the gunmen.
The officers had ample justification for entering the apartment without a warrant. Courts have consistently held that officers may enter a dwelling without a warrant when confronted with exigent circumstances. 2 LaFave $ S 6.6, at 697. As Chief Justice (then Judge) Burger declared in Wayne v. United States :
[A] warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. Fires or dead bodies are reported to police by cranks where no fires or bodies are to be found. Acting in response to reports of 'dead bodies,' the police may find 'bodies' to be common drunks, diabetics in shock, or distressed cardiac patients. But the business of policemen and firemen is to act not to speculate or meditate on whether the report is correct. People could well die in emergencies if police tried to act with the calm deliberation associated with the judicial process. Even the apparently dead often are saved by swift police response. A myriad of circumstances could fall within the terms 'exigent circumstances' . . ., e.g., smoke coming out a window or under a door, the sound of gunfire in the house, threats from the inside to shoot through the door at police, reasonable grounds to believe an injured or seriously ill person is being held within.