Police May Enter Home to Arrest Drunk Driving Suspect

Friday, June 2, 2006

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Police May Enter Home to Arrest Drunk Driving Suspect—S.C.

By KENNETH OFGANG, Staff Writer/Appellate Courts

Police may enter a home without a warrant if they have reason to believe that an occupant was driving drunk earlier and that blood-alcohol evidence will be lost absent such entry, the California Supreme Court ruled yesterday.

In a 6-1 decision, the justices overturned a Court of Appeal ruling that the Fourth Amendment categorically forbids a warrantless entry where the only exigent circumstance is a desire to prevent the loss of such evidence.

The ruling upholds the conviction of Daniel L. Thompson on charges of driving under the influence and resisting an officer, for which he was placed on misdemeanor probation. Thompson pled no contest but reserved the right to appeal after Santa Barbara Superior Court Judge Frank Ochoa denied his motion to suppress his blood sample and other evidence obtained pursuant to his warrantless arrest.

Ochoa denied the motion following a hearing in which a local resident said she found Thompson passed out inside his vehicle, which was parked without authorization in her space at the complex where the woman lived. After a neighbor awoke Thompson, he drove off, and the woman decided to follow him because he looked drunk and the woman had seen him in that condition several times before, she testified.

The witness said she stopped her pursuit because Thompson was driving dangerously. The woman informed a police officer, who determined Thompson’s address based on his license tag number and went to the residence with another officer.

A woman at the residence said Thompson was asleep and could not be woken up, and declined to allow the officers inside. But when the officer peered in and spotted a man meeting the description she had been given of Thompson, and spoke to him long enough to determine that his speech was slurred and that he otherwise appeared inebriated, she asked him to step outside.

When he refused, the officer testified, both officers went in to effectuate an arrest, which came after some difficulty, based on reasonable cause to believe that Thompson had committed a drunk driving offense.

Ochoa and the Santa Barbara Superior Court Appellate Division both found the entry and arrest to be lawful, but Div. Six of this district’s Court of Appeal reversed on the basis of Welsh v. Wisconsin(1984) 466 U.S. 740, in which the high court concluded the warrantless arrest of a suspected drunk driver in his home was invalid.

But Justice Marvin Baxter, writing yesterday for the court, said the case was distinguishable because the focus of Welsh was on the fact that drunk driving is treated in Wisconsin as a “very minor offense,” punishable on the first offense as a civil violation for which the only penalty is a fine.

“California, by contrast, classifies a first offense for driving under the influence as a criminal act that is punishable by no more than six months and no less than 96 hours in jail,” Baxter wrote. “The possibility of imprisonment distinguishes DUI in California from DUI in Wisconsin.”

Baxter noted that courts in a number of states have limited Welsh to non-jailable offenses, including at least a dozen that have held that the Supreme Court’s ruling does not apply to drunk driving in states where it is punishable by incarceration. In contrast, Baxter noted, Welsh has been held applicable to drunk driving suspects only by the Eighth Circuit, in a case from North Dakota, where the offense carried a maximum jail sentence of three days, and by the high courts of South Dakota and Arkansas.

The latter two courts, Baxter explained, reached the “remarkable” conclusion that drunk driving was a very minor offense even though it was punishable by up to a year in jail in both states.

The U.S. Supreme Court, on the other hand, held in Illinois v. McArthur (2001) 531 U.S. 326 that the police acted reasonably in not allowing the defendant to enter his residence unaccompanied by an officer for a period of two hours while police sought a warrant to search for evidence of simple marijuana possession. The maximum penalty for the offense, Baxter noted, was 30 days in jail.

The justice went on to conclude that the potential loss of evidence was, under the facts of the case, a sufficient reason for the police to enter without a warrant. To rule otherwise, he said, would be to allow “the corruption of evidence that occurs when the suspect takes advantage of any delay to ingest more alcohol — or to claim to have done so — or when the suspect evades police capture until he or she is no longer intoxicated.”

Baxter allowed for the possibility of cases in which there would not be exigent circumstances to support a warrantless entry into a DUI suspect’s home. In this case, however, the officers could have properly taken into consideration the fact that they had been lied to by the woman who answered the door and said the defendant was asleep; the risk that he would leave out the back door, towards which he was moving when the officer spotted him; the recentness of the defendant’s drunk driving; and the fact that the door was open, dispensing with any need for forcible entry, the jurist reasoned.

Justice Kathryn M. Werdegar, the lone dissenter, said that while there is “always” a possibility of a suspect destroying evidence inside his or her residence, respect for the resident’s “castle” requires that there be more than a mere possibility of loss of evidence of a jailable offense to support warrantless entry.

There was no evidence that the defendant intended to flee, Werdegar said, nor any other evidence to distinguish Thompson’s case from that of any other drunk driving suspect. A delay to obtain a warrant, she argued, would not have resulted in the loss of critical evidence, since his blood alcohol level could have been tested later and an expert could have estimated how much alcohol was in his blood at the time of his arrival home, based on the later test results.

“The majority endorses a scheme today by which police may too easily evade the warrant requirement,” Werdegar wrote. “Because I conclude its reasoning and result are contrary to the Fourth Amendment to the United States Constitution, I dissent.”

The case is People v. Thompson, 06 S.O.S. 2807.