¶1dissenting:
¶2I feel that the majority’s conclusion that the warrant-less arrest of this defendant was valid is wrong.
¶3The majority correctly recognizes that the United States Supreme Court decision in Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, “that a warrantless, nonconsensual entry into a suspect’s home to make a routine felony arrest is violative of the fourth amendment absent exigent circumstances, in this State applies to an occupant of a hotel room as well.” (91 Ill. 2d at 365.) The majority realizes that the defendant has a legitimate expectation of privacy in his hotel room, and I agree that because the defendant’s hotel room door was “cracked open,” “that fact by itself was in no way an invitation to or a justification for a warrantless entry.” 91 Ill. 2d at 366.
¶4The United States Supreme Court in Payton noted that “[i]t is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable” (445 U.S. 573, 586, 63 L. Ed. 2d 639, 651, 100 S. Ct. 1371, 1380), and, “[ajbsent exigent circumstances, that thresholdx may not reasonably be crossed without a warrant” (445 U.S. 573, 590, 63 L. Ed. 2d 639, 653,100 S. Ct. 1371, 1382).
¶5Because the Supreme Court in Payton treated that case as one in which there was ample time for the arresting officers to obtain a warrant, it was not necessary for the court to examine the “exigent circumstances” that justify a warrantless entry, but nevertheless the court characterized such circumstances as involving an “emergency or dangerous situation.” 445 U.S. 573, 583, 63 L. Ed. 2d 639, 649, 100 S. Ct. 1371, 1378.
¶6I firmly believe that there were no such exigent circumstances here. The warrantless and unannounced entry into the defendant’s hotel room was not justified. The officers were not responding to an emergency situation. Unlike the situation in People v. Abney (1980), 81 Ill. 2d 159, the officers did not suspect the defendant was armed; nor had the defendant exhibited violent tendencies. (Compare People v. Abney (1980), 81 Ill. 2d 159, 171.) The informant was not in danger; there was no reason to believe that the informant’s physical safety was threatened. Nor was there any threat of an imminent destruction of evidence. The officers were not acting to curtail the defendant’s flight or escape; nor were they chasing the defendant in “hot pursuit” into his hotel room. There was no danger; there was no emergency; there was no exigent circumstance.
¶7The majority reasons that because “a crime was being committed in the presence of the officers who made the arrest in response thereto” (91 Ill. 2d at 368), the entry into the defendant’s hotel room was justified. It is true that an officer may arrest a person when he has reasonable grounds to believe that the person is committing an offense in his presence. And an officer may rely upon his own senses in deciding if an offense is occurring.
¶8Testimony at trial showed that Officer Whitehill overheard the informant ask the defendant if he had any “grams” and the defendant answered in the affirmative. Officer Whitehill overheard the informant say that he wanted a “gram” and the defendant reply “you got it,” and Officer Whitehill overheard the defendant say that he expected to get some “coke” within the next few days (91 Ill. 2d at 364).
¶9It is not unreasonable to assume that an experienced police officer could, from listening to that conversation, believe that a drug sale was occurring. At this point, however, I believe the majority’s analysis falls apart. The majority concludes that the reasonable belief of the police officers that a felony was being committed in their presence constituted an exigent circumstance which justified the warrantless unannounced entry into the hotel room. Payton is unequivocal in asserting that reasonable belief or probable cause is not enough to justify a warrantless entry. The Supreme Court recalled Justice Jackson’s observation in Johnson v. United States (1948), 333 U.S. 10, 13-14, 92 L. Ed. 436, 440, 68 S. Ct. 367, 369:
“ ‘The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.’ ” (Payton v. New York (1980), 445 U.S. 573, 586 n.24, 63 L. Ed. 2d 639, 650 n.24, 100 S. Ct. 1371, 1380 n.24.)
¶10In saying that a reasonable belief that an offense was being committed in the officers’ presence constitutes an exigent circumstance, the majority stands the decision in Pay-ton on its head.
¶11The majority cites an A.L.R. annotation (91 Ill. 2d at 369) which states that when it can be said that an offense was committed in the presence of an officer, the officer may enter the premises without a warrant to make an arrest. However, the majority’s reliance on that annotation is misplaced in view of the fact that cases referred to precede Payton by almost 20 years.
¶12I have no doubt that there was no exigent circumstance here. A police officer is not required under the fourth amendment to delay action where there is a danger to the officer’s or another’s safety. But law-enforcement officials cannot set up a controlled buy of drugs and then attempt to justify an unannounced warrantless entry into a private hotel room by asserting that because the drug sale was in their presence it constituted an exigent circumstance.
¶13Without exigent circumstances the unannounced entry into the defendant’s hotel room was unlawful, the arrest unlawful and the subsequent search illegal. The motion to suppress the evidence obtained as a result of that search should have been granted.
¶14I feel the majority misses the point of Payton in allowing the extent of fourth amendment protections to turn on the reasonable beliefs of the law-enforcement officials. I must voice a strong dissent.
¶15GOLDENHERSH and SIMON, JJ., join in this dissent.