Colorado: While Payton was not complied with, exigent circumstances independently justified entry to arrest when defendant refused to show his hands

Police had cause to believe that the defendant, wanted on an arrest warrant, was in his friend’s apartment, so they went there to arrest him. When the door was opened, they found the defendant sitting in a recliner, but he refused repeated commands to show his hands. Officers then entered to remove him. While Payton was not complied with, there were exigent circumstances for that entry. After that, a plain view and protective sweep were permissible. People v. Aarness, 150 P.3d 1271 (Colo. October 23, 2006):

In addition to the three specific categories of exigent circumstances we have recognized, we have developed a set of factors to be considered when determining whether exigent circumstances are present. People v. Miller, 773 P.2d 1053, 1057 (Colo. 1989) (citing Dorman v. United States, 140 U.S. App. D.C. 313, 435 F.2d 385, 392-93 (D.C. Cir. 1970)). In Miller, we followed the Dorman factors for determining whether exigent circumstances exist: (1) whether a grave offense is involved, particularly a crime of violence; (2) whether the suspect is reasonably believed to be armed; (3) whether there exists a clear showing of probable cause to believe that the suspect committed the crime; (4) whether there is a strong reason to believe the suspect is in the premises being entered; (5) the likelihood that the suspect will escape if not swiftly apprehended; and (6) whether the entry is made peaceably. Id. Whether the entry is made at night is an additional consideration. Id.

Applying the Dorman factors, other jurisdictions have found exigent circumstances in situations substantially similar to this one. See generally 3 LaFave, supra, § 6.1(f) nn. 198-206 (listing cases finding exigent circumstances under the Dorman factors). For example, the First Circuit held that exigent circumstances justified entry into a third party’s residence to execute an arrest warrant where the arrestee had outstanding arrest warrants, had been seen by an informant earlier that day carrying a firearm, and tried to escape through the attic when he saw police outside the residence where he was staying. United States v. Weems, 322 F.3d 18, 20-21, 23 (1st Cir. 2003). The court reasoned that the police needed to act quickly in that situation, and that the arrestee had been given ample time to surrender before the police entered the residence to arrest him. Id. at 23.

Considering the Dorman factors as approved of by this Court in Miller, the particular circumstances present here were sufficient to conclude that there existed a substantial safety risk to both police and the occupants of the apartment that justified police entry to arrest Aarness. Most important to our finding are the facts that police had information that Aarness was armed, coupled with his behavior when he saw the police at the door. Aarness reached into the seat of his recliner and disobeyed multiple commands to show his hands. Instead, he kept his right hand in the recliner, raising the need for immediate police action. Under the facts here, it was reasonable for police to believe that Aarness was reaching for a weapon and that their entry into the apartment at that time was necessary to protect the safety of the other occupants present, as well as their own safety. Further, police had reason to believe that Aarness was an escape risk because of his outstanding California warrant for a parole violation. While it is also true that Aarness eventually responded by raising his hands, on balance, we hold that exigent circumstances justified the police entry into the apartment to arrest Aarness.