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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v CORY DEREAIL LEMONS, Defendant-Appellee.

FOR PUBLICATION February 21, 2013 9:05 a.m. No. 308565 Wayne Circuit Court LC No. 12-000437-FH

Before: RIORDAN, P.J., and HOEKSTRA and O'CONNELL, JJ. RIORDAN, P.J. The prosecution appeals as of right the trial court's order granting defendant's motion to quash and order of dismissal. Defendant was charged, as a fourth habitual offender, MCL 769.12, with possession with intent to deliver 50 grams or more but less than 450 grams of cocaine, MCL 333.7401(2)(a)(iii), and possession with intent to deliver less than five kilograms of marijuana, MCL 333.7401(2)(d)(iii). The trial court found that the drug evidence was seized as a result of an illegal search, thereby granting defendant's motion to quash and dismissed the case. We reverse the trial court's order granting defendant's motion to quash and the order of dismissal. I. FACTUAL BACKGROUND Van Buren Township Police Officer Derek Perez and another officer were dispatched to defendant's condominium on Friday, November 13, 2011, at about noon, to respond to a report that the front door was open and blowing in the wind. The officers arrived at the residence and confirmed that the door indeed was open and blowing in the wind. There was no observable damage to the door. The officers announced their presence, knocked on the door several times, and rang the doorbell. No one came to the door. Because the door to the residence was open, the officers suspected there may have been a recent home invasion. Officer Perez testified that an open door was consistent with a breaking and entering and that there is not always damage to a door in a breaking and entering. He testified that he would not leave a residence with the door open for fear there was someone inside. Thus, the officers entered the residence in order to ascertain if anyone was inside the condominium and to secure the residence.

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As soon as the officers entered the kitchen, they smelled a strong odor of marijuana and observed marijuana residue on the counter. Officer Perez testified that they continued to search the house looking for persons and to ensure that the house was secure. He said they were not in the condo to search for evidence of a crime. When the officers proceeded to the basement, they found two large bags of suspected marijuana in plain view. They did not locate anyone in the residence. The police then sought a search warrant. Detective Christopher Valinski and Detective Michael Rini arrived at the residence and executed the search warrant. They seized cocaine, marijuana, clear plastic bags, a scale, and paperwork from the kitchen. They also discovered cocaine in one of the bedrooms and marijuana from the basement. Detective Valinski located a DTE energy bill with defendant's name on it. Thus, when defendant drove near the residence, the police executed a stop on the vehicle. While defendant admitted that the marijuana belonged to him, he disavowed any knowledge of the cocaine. Defendant filed a motion to quash and dismiss, arguing that the search was illegal because the police entered the condominium without a search warrant and without proper justification. Despite the prosecution's arguments to the contrary, the trial court agreed with defendant. The trial court ruled that the responding officers lacked articulable reasons for entering the residence without a warrant. The court granted defendant's motion to quash and dismissed the case. The prosecution now appeals. II. SEARCH AND SEIZURE A. Standard of Review "This Court reviews a trial court's decision on a motion to quash the information for an abuse of discretion." People v Miller, 288 Mich App 207, 209; 795 NW2d 156 (2010). However, "[t]o the extent that a lower court's decision on a motion to quash the information is based on an interpretation of the law, appellate review of the interpretation is de novo." Id. B. Emergency Aid Exception Our state and federal constitutions guarantee the right against unreasonable searches and seizures. People v Brzezinski, 243 Mich App 431, 433; 622 NW2d 528 (2000). The Fourth Amendment of the United States Constitution is generally understood to provide the same protections as article 1,

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Michigan Law