The opinion of the court was delivered by: BRODERICK
On the morning of December 31, 1979, at about 9:15, three men, two with guns, entered a bank on upper Broadway in Manhattan. Two of them wearing dark clothing and ski masks, one with a gun, vaulted the tellers' counter. The third, without mask, wearing a light trench coat and a cap and holding a gun, acted as lookout in the outer lobby of the bank. The two masked men rifled the tellers' drawers, vaulted back over the counter, and left the bank with the lookout.
The three bank robbers were seen to run at top speed across Broadway to the east side of the street in the direction of West 180th Street. A bank employee gave chase. About five to ten seconds after he saw the robbers leave the bank, and after he briefly lost sight of them, the bank employee saw two of the men enter a six-story apartment building at the southeast corner of Broadway and West 180th Street.
Another bank employee had flagged down a police Emergency Service vehicle and directed it to the West 180th Street apartment building. Within minutes other police vehicles arrived and the building, which was unconnected with others around it, was sealed off on all sides by about 12 officers. West 180th and 179th Streets were closed to vehicular traffic.
The officers of the Emergency Service Unit, who were, as noted, first on the scene, had been told that the robbers were armed. A short while later, officers at the building were given the additional information that the robbers were black.
Members of the Emergency Service Unit searched the basement, hallways, and roof. Police officers escorted persons entering the building to their apartments, and the police kept a list of the apartments whose occupants entered or left the building. The police had been informed that black families lived on the fourth and fifth floors. From a boy on the third floor the police learned that a couple of men had been seen running up the stairs from the third floor landing. When detectives and an agent of the Federal Bureau of Investigation arrived, it was decided to canvass the building from top to bottom.
The canvass was begun on the sixth and fifth floors, at the top of the building: police officers knocked on the apartment doors on those floors. When the occupant of an apartment responded, the police identified themselves and inquired whether anything unusual had occurred.
The response to the knock at apartment 5-D made the three police officers canvassing that floor immediately suspicious. The respondent appeared nervous. When asked whether the police officers could enter and look around, he initially agreed, then (as one of the officers placed his foot over the threshold) stated excitedly that he did not want his woman and child to be hurt. His responses concerning the number of persons in the apartment seemed evasive: he said that some men were in the second room on the left in the apartment and that he had heard them enter about a half hour earlier. At this point one of the police officers went for assistance.
After the respondent to the knock at apartment 5-D had led a woman and child out of the apartment, five Emergency Service officers entered the apartment. The first room on the left as they entered was empty. At the door to the second room they identified themselves as police officers. When the door was not opened at their direction, they kicked it open. Inside the room they found the three defendants, one on the floor, the other two behind the door. On a bed was a gun, a quantity of money, and articles of clothing, including a beige overcoat and two ski masks. The defendants were arrested, and the items mentioned above were seized. By the time the defendants were taken out of the apartment building, 30 to 45 minutes had elapsed since the bank robbers had left the bank. A crowd of about 200 people had gathered in the street in front of the apartment building.
The defendants moved to suppress, inter alia, the arrests and the evidence seized.
I denied this aspect of their motion on the record at the conclusion of two days of hearings on March 17, 1980. This memorandum sets forth in somewhat more detail my reasons for that ruling.
Where there is probable cause to believe that a person has committed a felony, "exigent circumstances" may justify the warrantless entry of law enforcement officers into a private home to search for and arrest that person. Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). Relevant factors to be considered in determining whether "exigent circumstances" exist include:
(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect "is reasonably believed to be armed"; (3) "a clear showing of probable cause . . . to believe that the suspect committed the crime"; (4) "strong reason to believe that the suspect is in the premises being entered"; (5) "a likelihood that the suspect will escape if not swiftly apprehended"; and (6) the peaceful circumstances of the entry.
United States v. Campbell, 581 F.2d 22, 26 (2d Cir. 1978), quoting Dorman v. United States, 140 U.S. App. D.C. 313, 435 F.2d 385 at 392-93 (D.C.Cir.1970) (en banc ); United States v. Reed, 572 F.2d 412, 424 (2d Cir. 1978).
Here the law enforcement officers made a warrantless entry into an apartment, where they arrested defendants and seized various items. "Exigent circumstances" existed which justified the entry of the law enforcement officers into the apartment without a warrant. Every factor relevant under Campbell, supra, save factor number 5 (" "a likelihood that the suspect will escape if not ...