(dissenting). We must dissent. In our view, the warrantless entry of the police into defendant’s apartment was in violation of Payton v New York (445 US 573). Although the police may have had probable cause to arrest defendant the question is whether, assuming the existence of probable cause, it was lawful to arrest defendant in his home without first obtaining a warrant (see, People v Clements, 37 NY2d 675, 678-679, cert denied sub nom. Metzger v New York, 425 US 911). The majority justifies the warrantless arrest on the theory that defendant was about to flee. We disagree.
The burden of showing the existence of an exigent circumstance rests squarely upon the People (People v Knapp, 52 NY2d 689, 694), a burden they have not met on this record. The crime occurred during the evening of June 8, 1983. At approximately 9:45 p.m. the next day Timothy Murray, a participant in the crime, informed police of the murder and stated that defendant was going to flee to Houston, Texas. At approximately 12:45 a.m. the Buffalo Police Chief of Homicide directed his subordinates to go to defendant’s apartment and arrest the defendant. The police made no effort to seek a warrant because they believed the hour was too late to find a Judge to issue one.
If defendant had really intended to flee, he likely would have done so within the 24 hours following the crime. This was not a case in which the police were in hot pursuit of a suspect immediately following a crime (cf. Warden v Hayden, 387 US 294, 298-300). Moreover, the information of defendant’s intention to flee came from a participant in the crime who, although accurate as to other details, could have fabricated certain information to deflect police attention away from him and toward defendant.
Even assuming the information of defendant’s intended flight was reliable, however, there was ample time for the police to obtain a warrant. We "must be careful to distinguish between constraints on police conduct which limit effective police enforcement and those constraints which merely make effective police enforcement more burdensome” (People v Spin*12elli, 35 NY2d 77, 81). Judges are available to entertain warrant applications any day of the week, any time of the day or night. Here, the police made no attempt whatsoever to contact a Judge, but merely presumed that such an effort would be unsuccessful. This deficiency is particularly alarming given the recent statutory alternative whereby the police may obtain a warrant by oral application (see, CPL 690.36). This legislation was intended to reduce the need to rely on exigent circumstances and to minimize the occasions where members of the public will be subject to warrantless intrusions on their privacy by government officials (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 690.36, p 387).
Four police officers were sent to defendant’s apartment building to arrest him. One officer watched the front of the building, one officer watched the back of the building and the other two officers knocked on the door to defendant’s apartment. They heard movement inside and tried to kick down the door, without success. The police then called the fire department and the door was pried open with an axe approximately 15 minutes later (cf. People v Green, 103 AD2d 362, 364). Thus, there is no reason why the police, having surrounded the apartment building and secured the exits to defendant’s apartment, could not have continued to guard the building while obtaining a warrant. If the police had time to call the fire department to axe open defendant’s door, they had time to call a magistrate to obtain a warrant. The majority’s reliance upon United States v Campbell (581 F2d 22, 26-27) is misplaced since the rationale there was that defendants, charged with possessory crimes, could have disposed of the contraband in the interim. That theory has no relevance to the facts of the instant case.
The majority’s reliance on People v Gordon (110 AD2d 778) also is misplaced. There the court found exigent circumstances to enter an apartment without a warrant. In Gordon, the police had to act quickly because the mother of defendant’s girlfriend told police defendant was leaving as soon as she returned to her apartment. There was also the issue of consent given to the officers by the mother who owned the apartment, where the daughter’s boyfriend had no expectation of privacy. Here, we have defendant in his own apartment almost 24 hours after the crime.
There is no question here that the crime the police were investigating was a serious one. But the seriousness of the *13offense, by itself, does not create an exigent circumstance to justify a warrantless intrusion on a defendant’s constitutional right to privacy (see, Mincey v Arizona, 437 US 385, 394). It is important to note that the facts of this case are strikingly similar to the facts in Payton. Here, as there, defendant was a suspect in a murder and identified by an eyewitness to the crime. Here, as there, several officers went to defendant’s apartment and summoned help to force open the door. In both cases, the police were aware of defendant’s identity and place of residence hours before the warrantless break-in. In the intervening period they had ample opportunity to secure the approval of a detached judicial officer. Moreover, even at the time of the forcible entry the police were compelled to delay further while awaiting the arrival of other agencies during which time the officers again could have secured the necessary warrant.
The 4th Amendment requires that the evaluation of probable cause to arrest a suspect in his home be made, in the first instance, by "a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime” (Johnson v United States, 333 US 10, 14). Since this was not done in the instant case, all evidence gained by exploitation of the illegal entry must be suppressed as fruit of the poisonous tree (Wong Sun v United States, 371 US 471, 488). Accordingly, the judgment should be reversed, defendant’s motion to suppress should have been granted, and a new trial granted.
Doerr, J. P., and Balio, J., concur with Boomer, J.; Green and Pine, JJ., dissent and vote to reverse the judgment, grant defendant’s motion to suppress and grant a new trial in an opinion by Green, J.
Judgment affirmed.