"In terms that apply equally *74to seizures of property and to seizures of persons, the Fourth Amendment hás drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” (Payton v New York, 445 US 573, 590.)
The police entered the defendant’s home, at night, forcibly breaking the door, without a warrant. The police had the house surrounded, and made their entry some two hours after the defendant had refused them admission by not responding to their knocking at the door or to their other attempts to communicate with him. They knew that he was in the house since he was seen through a window.
The majority concede that there was no likelihood that the defendant would escape or that evidence would have been recovered or destroyed. The crime occurred on September 5th, the entry into the defendant’s home on September 8th. As described by the majority, the defendant was already approaching his home when the police first saw him. There was no hot pursuit of one escaping from the scene of a crime.
The majority holds that no constitutional protections, either State or Federal, are implicated because "the arrest was initiated in a public place”. Cited in support of this holding is United States v Santana (427 US 38). In that case, the Court held that Santana could not defeat an otherwise proper arrest, set in motion in a public place, by retreating into a private place. Santana was standing in the doorway of her house when the police sought to arrest her. She retreated. The officers followed through the open door, completing the arrest in the vestibule. Since there was probable cause for the arrest, Justice White, in his concurring opinion, noted "In these circumstances, a warrant was not required to enter the house to make the arrest, at least where entry by force was not required” (supra, at 43-44 [emphasis supplied]). Similarly, in People v Jacobo (208 AD2d 432) and People v Johnson (193 AD2d 35), also cited by the majority, the records reveal that the defendant in each of those cases was in the open door of his apartment when the arrest was initiated. In each of those cases, the pursuing officers entered, in hot pursuit, through the open entry door. The facts here are, of course, quite different.
The prosecution further maintains that exigent circumstances justified the entry and arrest. The majority agrees.
Several factors are to be examined when determining whether exigent circumstances justify warrantless entry. These *75include, (1) the gravity or violent nature of the alleged underlying offense; (2) whether the suspect is reasonably believed to be armed; (3) the clear showing of probable cause to believe that the suspect committed the crime; (4) a strong reason to believe that the suspect is in the premises being entered; (5) the likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry (People v Cruz, 149 AD2d 151,160). Several of these criteria have plainly been satisfied in the instant case. The defendant was suspected of robbery in the first degree, a serious and violent crime. The results of a photo array had established probable cause to believe that he had committed the crime. He was, arguably, reasonably believed to be armed (although he was not seen to be armed when entering his home; no weapon was recovered in a search of the home; and the crime had occurred several days earlier). There surely was strong reason to believe that the suspect was in the premises, since he had been seen entering and had been seen through a window.
Others of these factors, however, were not established. As has been conceded, there was no likelihood of escape. The suspect was in his home, which was surrounded by detectives, uniformed police officers from the local precinct, and officers of the Police Department Emergency Service Unit. Further, the circumstances of the entry were hardly "peaceful”. Although the majority described the entry as the result of "restraint”, the record compels a different conclusion. Detective Duggan, the main witness for the prosecution, in describing the device used to gain entry, testified: "It was mechanical where you pump it up and it goes through the door. * * * It will break the jam[b], force the lock, whatever is holding the door; it will just forcibly break that so the door can open.” In fact, as pointed out by the Hearing Judge in his written decision, the People conceded that the element of "peaceful circumstances of entry” was not satisfied here.
The lack of exigency is further demonstrated by the fact that Detective Duggan attempted to apply for a warrant. It is thus apparent that he appreciated the necessity for such a warrant where there was no likelihood of escape. (The hearing court found the detective’s stated reason for not obtaining a warrant "unconvincing”.)
While not included in the exigency criteria set forth in People v Cruz (supra), also to be considered is the likelihood of essential evidence being destroyed. This case did not involve drugs or other evidence which is readily capable of destruction. *76And, even if it had involved such materials, the wait of over two hours to enter the defendant’s home would have rendered such concerns academic. After listening to the testimony, the hearing court found that this "suggestion * * * strains credibility” and that it was "unconvincing”.
Since there was no search warrant, no consent, and no exigent circumstances, the police entry into the defendant’s home, from which he could not escape, during the middle of the night, by force was unreasonable and illegal. (NY Const, art I, § 12; US Const 4th, 14th Amends.) The fruits of that entry were properly suppressed since the initial illegality was not attenuated (People v Harris, 77 NY2d 434).
Ellerin and Kupferman, JJ., concur with Rubin, J.; Rosenberger, J. P., dissents in a separate opinion.
Order, Supreme Court, New York County, entered August 8, 1994, reversed, on the law, the defendant’s motion to suppress physical evidence, statements made to police and lineup identification testimony denied, and the matter remitted to Supreme Court for further proceedings.