The opinion
MACK, Associate Judge,
dissenting:
A fundamental precept immediately comes to mind. “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance of the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573, 590 , 100 S.Ct. 1371, 1382 , 63 L.Ed.2d 639 (1980).
I fear that the majority is sanctioning conduct under the umbrella of “exigent circumstances” which does violence to the Fourth Amendment. The factual circumstances here present a strange vehicle upon which to pin the label of “hot pursuit.” (Indeed the government has offered an alternative theory of “authorized consent” to justify the intrusion here).
In my view, the warrantless entry and search of appellant Ruth’s bedroom was unlawful. At the time the two police sergeants (Streeter and Smith) ascended the inside stairwell to reach the second floor room, Ruth and Matthews, the only “two suspects,” were under arrest and in custody outside the front of the house. At least six officers were in or around the premises— two in front of the premises and two in the rear. Inside, at the top of the stairway, Streeter and Smith saw Ruth’s grandmother, who appeared to be the same woman whom Streeter had seen from the alley in Ruth’s room. The officers ignored her; they neither asked her about a weapon nor frisked her for one. The officers knew that the room was Ruth’s, the door was open, the light was on and as Streeter stepped inside he immediately saw that the room was vacant. On these facts I find it difficult to conclude that this was an entry incident to “hot pursuit” or that this was the kind of “protective search,” for weapons or dangerous accomplices found to be reasonable in Warden v. Hayden, 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967); Vance v. United States, D.C.App., 399 A.2d 52 (1979) or United States v. Miller, 145 U.S.App.D.C 312, 449 F.2d 974 (1970). It is likewise impossible for me to conclude that the items seized were in reach or control of the arrestees so as to trigger the limited exception to the warrant requirement. See New York v. Belton, - U.S. -, 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981); Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969). In my view, the officers had no right to enter the room or to make “plain view” seizures. Cf. Miller and Vance, supra, where such seizures occurred inadvertently while the officers were lawfully conducting a protective search.
The Supreme Court only last year (in Payton, supra), reminded that “the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ ” Id. 445 U.S. at 585 , 100 S.Ct. at 1379 (quoting United States v. United States District Court, 407 U.S. 297, 313 , 92 S.Ct. 2125, 2134 , 32 L.Ed.2d 752 (1972). The court had no occasion in the circumstances of that case to consider the sort of emergency or dangerous situation amounting to “exigent circumstances.” Two years prior to Payton however, the Court in Mincey v. Arizona, 437 U.S. 385, 393 , 98 S.Ct. 2408, 2413 , 57 L.Ed.2d 290 (1978), rejected the argument that the warrantless search of an apartment, where a homicide had recently occurred, was constitutionally permissible. The Court noted:
*1264 “[a] warrantless search must be ‘strictly circumscribed by the exigencies which justify its initiation’ and it simply cannot be contended that this search was justified by an emergency threatening life or limb.” [Citing Terry v. Ohio, 392 U.S. 1, 26 , 88 S.Ct. 1868, 1882 , 20 L.Ed.2d 889 (1962).]
Further noting that the presence of police on the scene minimized the possibility that evidence would be lost, destroyed or removed during the time required to obtain a search warrant, the Court said:
We decline to hold that the seriousness of the offense under investigation itself creates exigent circumstances of the kind that under the Fourth Amendment justify a warrantless search. [Mincey v. Arizona, supra 437 U.S. at 394 , 98 S.Ct. at 2414 .]
The circuit court in this jurisdiction has suggested guidelines as to what might constitute such exigent circumstances. In Dorman v. United States, 140 U.S.App.D.C. 313 , 435 F.2d 385 (1970), Judge Leventhal set forth a number of material considerations: (1) a grave offense is involved (2) the suspect is reasonably believed to be armed (3) a clear showing of probable cause to believe the suspect committed the offense (4) strong reason to believe that the suspect is in the premises being entered and (5) a likelihood that the suspect will escape if not swiftly apprehended.
At least three of the considerations advanced by Judge Leventhal are missing here. Although the police knew that appellant Ruth (who might be armed) was on the premises at the time they initially entered the house, they knew he had been arrested and was in custody outside the premises at the time of the second entry and search of his room; they knew the suspect posed no danger as to escape, as to destruction of contraband, or as to police safety when they reentered the house and ascended to his room. This was neither an entry in hot pursuit, nor under exigent circumstances nor was this a protective search. I would hold that the motion to suppress was improperly denied as to the appellant Ruth.