dissenting.
I am compelled to dissent in this case because of the fundamental philosophy evidenced in the Court’s opinion. It reverses the conviction of a confessed burglar because of the asserted actions of the police officers who effected his arrest.
I
The majority of the Court, without any claim of error by defendant or reference in his brief or elsewhere in the record, apply A.R.S. § 13-1411, stating:
“The record, without contradiction, shows that the officers failed to fulfill the clear requirements of A.R.S. § 13-1411 when they entered appellant’s home.”
and again:
“The entry into appellant’s apartment was unlawful under A.R.S. § 13-1411. The requirements of the statute are clear and unambiguous, and place as conditions precedent to a lawful entry the obligation that officers announce their authority and purpose and be refused entry.”
I cannot agree that the entry into defendant’s apartment was unlawful. A.R.S. § 13-1411 is clear and unambiguous, indeed. It reads:
“An officer, in order to make an arrest either by virtue of a warrant, or when authorized to make such arrest for a felony without a warrant, as provided in *196§ 13-1403, may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be, if the officer is refused admittance after he has announced his authority and purpose.”
It authorizes a police officer to break open a door or window of a building in order to make an arrest if he is refused admittance after he has announced his authority and purpose. It does not say that an officer must announce his authority and purpose before he enters a building if it is unnecessary to break open a door or window.
The statute is not of recent origin. It is virtually an enactment of the common law. Compiler’s notes § 44-132, A.C.A. 1939. Similar language is to be found in the Penal Code of 1901, § 744. It has no application to this case because the police officers did not “break open a door or window” to gain admittance to the defendant’s apartment. See, Argetakis v. State, 24 Ariz. 599, 212 P. 372 (1923), where the police entered an unlocked door after an unanswered knock but no announcement of authority or purpose, and the defendant’s conviction was affirmed.
Police Officer John Hanley testified without contradiction that the door of defendant’s apartment was unlocked and not completely closed:
“The door was unlocked. The door was closed. It wasn’t closed tight, it was against the door jamb, and I entered with the intention of apprehending the subject if he was still in there.”
No doubt the Legislature, if it had intended that an officer before entering a building announce his authority and purpose, would have said so in just that language.
I am aware of the construction attached to the congressional enactment, 18 U.S.C. § 3109, in Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). There, it was held the phrase “break open” as used by Congress did not mean exclusively the use of force. However, the case of Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), controls the states:
“The States are not * * * precluded from developing workable rules governing arrests, searches and seizures to meet ‘the practical demands of effective criminal investigation and law enforcement’ in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures and the concomitant command that evidence so seized is inadmissable against one who has standing to complain.” Id. at 34, 83 S.Ct. at 1630, 10 L.Ed.2d at 738.
But even if we arbitrarily assume in the face of the plain language of the Arizona statute that the police officer should have first announced his authority and purpose before entering the defendant’s apartment, Justice Traynor’s statement in construing a statute identical to Arizona’s is applicable here:
“Moreover, since the demand and explanation requirements of section 844 are a codification of the common law, they may reasonably be interpreted as limited by the common law rules that compliance is not required if the officer’s peril would have been increased or the arrest frustrated had he demanded entrance and stated his purpose. (Read v. Case, 4 Conn. 166, 170 [10 Am.Dec. 110]; see, Rest., Torts, § 206, com. d.) Without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide these questions in the first instance.” People v. Maddox, 46 Cal.2d 301, 306, 294 P.2d 6, 9 (1956).
Officer Hanley could reasonably assume that the defendant would attempt to frustrate the arrest had he announced that was his purpose in entering — either by resistance or attempt to escape through another entrance to the building.
II
The majority criticize the officers’ entry into the defendant’s apartment because “the circumstances were not exigent,” meaning “critical or pressing”, Webster’s Third New International Dictionary (1961). Here, again, I cannot agree with the major*197ity. I think the circumstances were both critical and pressing.
This is what happened. The prosecuting witness, who was 18 years of age, was employed at the Community Medical Services as a receptionist. The defendant, who had an apartment next door to the Community Medical Services office, came in at about 11:30 in the morning and “grabbed” her and held a 12-ineh butcher knife at her neck. He took her purse and the money in it, compelled her to go with him to his apartment, disrobed her and attempted sexual intercourse. Thereafter, he made her drive him around Phoenix in her car. When they returned and she saw her employer’s car was parked at the Medical Services office, she pushed on the horn and ran into the office. Her employer called the police. She and her employer went outside to await their arrival, “and the police came shortly after that.”
The prosecuting witness testified:
“then [the police] asked me where I thought he [the defendant] might have gone, and I just said, he might have gone to the apartment, I thought he had to be around there, because he didn’t have a car or anything.”
Officer Hanley testified:
“She said she went around the front of the car after she had honked on the horn and beat on the door and the last she saw him, he was going back towards the apartment and she didn’t know where he went from there.”
The majority concede that hot pursuit of a fleeing felon is an “exigent circumstance” which would justify entry into the defendant’s apartment, but do not consider that the officer was in hot pursuit, although the defendant was last seen but a short time before in close proximity. A peace officer could reasonably believe that in order to put an end to the unrestrained criminal activities of this man he should immediately be arrested and that the most likely place to accomplish this was to intercept him at his apartment.
In Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), the Supreme Court found hot pursuit in circumstances comparable to those of the instant case. There, an armed robber entered upon the business premises of a Diamond Cab Company in Baltimore, Maryland, and took $363.00. Two cab drivers followed the man to 2111 Cocoa Lane in Baltimore, where one driver called the company dispatcher by radio and told him the man had entered a house at that address. The dispatcher relayed the information to the police and very shortly thereafter the police arrived at the house, which they entered and searched, finding the defendant, Hayden. Even though it was plain the police had the opportunity to watch the house in which Hayden was arrested until a warrant could be obtained, the Court held:
“We agree with the Court of Appeals that neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, ‘the exigencies of the situation made that course imperative.’ ” Id. at 298, 87 S.Ct. at 1645, 18 L.Ed.2d at 787.
Ill
I am further of the opinion that under the particular circumstances of this case, the police officers having made a lawful entry could properly examine the apartment. Officer Hanley testified:
“Q. All right. When you went in there, what did you do inside?
A. The apartment was empty and due to the fact that the crime had taken place there and she had told me that that’s where he took her, I felt that the suspect lived there, otherwise he wouldn’t have been in there, and I searched his apartment for identification so I could put out a broadcast as to his identity.”
The officers could hardly have done less. The exigencies of the circumstances demanded that the defendant be identified with certainty in order to facilitate his earliest apprehension. That the officer saw part of the stolen property which the prose*198cuting witness had already told him about is of no significance. It is straining at gnats to say that knowledge of the stolen property “has been come at by exploitation” of the illegality of the police officers when they already knew that most of the property taken in the burglary was present in the apartment. Knowledge which can be attributed to an independent source does not require the exclusion of evidence since the evidence is not attributable to the fruit of a poisonous tree. Anno., “Fruit of Poisonous Tree” Doctrine Excluding Evidence Derived from Information Gained in Illegal Search, 43 A.L.R.3d 385, 399. Since the officer was aware that some of the stolen property was in the defendant’s apartment before he went.into the apartment, he could reasonably assume that the typewriter he saw was the one reported to have been stolen in the same theft. The trial court was correct in denying the motion to suppress.
IV
Although the foregoing points would alone seem to justify an affirmance of the judgment, I am most concerned with this Court’s handling of the defendant’s confession to the crime of burglary. The defendant at the trial and after the jury was impaneled, requested a voluntariness hearing as to the admissibility of his confessions. At the voluntariness hearing, the State called the two police officers who had arrested the defendant. They testified that they had a conversation with him at the scene of his arrest and that he had been read his rights from a standard rights card. He was then asked by Officer Hanley:.
“Why do you think I am here?”
to which the defendant replied:
“I did it, I did a burglary and a rape.” When the defendant was taken to the police station, he told Police Officer Charles Bra-den the details of his criminal rampage and they were incorporated in two written statements which the defendant signed. At the conclusion of Officer Braden’s testimony, the defense waived the testimony of another police officer who had witnessed the statements, and in response to the court’s question:
“Do you have an argument to make or — ” replied:
“No, Your Honor, I’ll rest on the evidence.”
The trial judge then found that the confessions were knowingly, intelligently and voluntarily made.
The defendant did not take the witness stand at the voluntariness hearing, did not say that his confessions were involuntary either then or now, did not move for a new trial after his conviction for the reason that his confessions were involuntary, did not urge in his notice of appeal that his confessions were involuntary, did not assign as error in this Court that his confessions were involuntary. Yet the majority, without any suggestion from the defendant, decide they “cannot say that appellant’s confession concerning the burglary was not a product of having already seen police officers illegally inside his apartment.”
The theory that an illegal search tainted the confessions is dredged up by the majority of the Court out of their unbridled imagination more than two years after the defendant’s trial. There is no suggestion whatsoever in the record that the circumstances coerced the defendant into confessing. He did not testify at a time when he could have at the voluntariness hearing, at a time when he was not in the presence of the jury and the examination would have been directed to the coercive circumstances surrounding the arrest and attendant confessions.
The rule is recognized everywhere that a motion for a new trial and a statement of the grounds or reasons therefor must be made in order to apprise the trial court of possible error and avoid the necessity of appeal. Lacking such a motion, any error later asserted is not preserved for appellate review. In State v. Boozer, 80 Ariz. 8, 291 P.2d 786 (1955), this Court said:
“In the instant case as to practically all of the various matters now complained of no objection was then made, and it is *199significant that on motion for new trial these matters were not set forth as grounds for granting such motion. Hence they cannot be reviewed here.” Id. at 13, 291 P.2d at 789.
The standard for review on appeal in this State lacking a motion for a new trial is “fundamental error.” In the federal courts, lacking a motion for a new trial, it is “plain error.” United States v. Stamas, 443 F.2d 860 (1st Cir.), cert. denied, 404 U.S. 851, 92 S.Ct. 86, 30 L.Ed.2d 90 (1971); United States v. Valez, 431 F.2d 622 (8th Cir. 1970), appeal after remand, 467 F.2d 600 (1972). Since the defendant did not testify when he had the opportunity that the presence of the officers in his apartment was coercive, nor did his lawyer ever argue in this Court or in the court below that defendant was coerced into confessing, the determination by the trial court that the confession was voluntary was correct.
I do not think it is necessary for the Court to be so solicitous of the defendant. He had competent counsel who certainly would have brought out that his client was coerced had it been true. While the majority do not reverse because they cannot say the defendant’s confession was not a product of having already seen police officers illegally inside his apartment, the opinion suggests a new defense, one which at present finds no support in the facts and derived solely as a figment of the reviewing judges’ imagination. Decisions such as these encourage frivolous appeals and perjury by defendants on retrial. Trial judges, attorneys and law enforcement officers become confused because they do not know what standards should be applied in order to assure a constitutional trial to an accused.
For the foregoing reasons, the judgment of conviction on burglary should be affirmed.