On the night of April 24, 1978, a witness observed a car that
was being driven erratically and that eventually swerved off the
road, coming to a stop in a field without causing damage to any
person or property. Ignoring the witness' suggestion that he wait
for assistance in removing his car, the driver walked away from the
scene. The police arrived a few minutes later, and were told by the
witness that the driver was either very inebriated or very sick.
After checking the car's registration, the police, without
obtaining a warrant, proceeded to the petitioner's nearby home,
arriving at about 9 p.m. They gained entry when petitioner's
stepdaughter answered the door, and found petitioner lying naked in
bed. Petitioner was then arrested for driving a motor vehicle while
under the influence of an intoxicant in violation of a Wisconsin
statute which provided that a first offense was a noncriminal
violation subject to a civil forfeiture proceeding for a maximum
fine of $200. Petitioner was taken to the police station, where he
refused to submit to a breathanalysis test. Pursuant to Wisconsin
statutes, which subjected an arrestee who refused to take the test
to the risk of a 60-day revocation of driving privileges,
petitioner requested a court hearing to determine whether his
refusal was reasonable. Under Wisconsin law, a refusal to take a
breath test was reasonable if the underlying arrest was not lawful.
The trial court, ultimately concluding that petitioner's arrest was
lawful and that his refusal to take the breath test was therefore
unreasonable, issued an order suspending petitioner's license. The
Wisconsin Court of Appeals vacated the order, concluding that the
warrantless arrest of petitioner in his home violated the Fourth
Amendment because the State, although demonstrating probable cause
to arrest, had not established the existence of exigent
circumstances. The Wisconsin Supreme Court reversed.
Held: The warrantless, nighttime entry of petitioner's
home to arrest him for a civil, nonjailable traffic offense, was
prohibited by the special protection afforded the individual in his
home by the Fourth Amendment. Pp.
466 U. S.
748-754.
(a) Before government agents may invade the sanctity of the
home, the government must demonstrate exigent circumstances that
overcome the presumption of unreasonableness that attaches to all
warrantless home entries. An important factor to be considered when
determining
Page 466 U. S. 741
whether any exigency exists is the gravity of the underlying
offense for which the arrest is being made. Moreover, although no
exigency is created simply because there is probable cause to
believe that a serious crime has been committed, application of the
exigent circumstances exception in the context of a home entry
should rarely be sanctioned when there is probable cause to believe
that only a minor offense has been committed. Pp.
466 U. S.
748-753.
(b) Petitioner's warrantless arrest in the privacy of his own
bedroom for a noncriminal traffic offense cannot be justified on
the basis of the "hot pursuit" doctrine, because there was no
immediate or continuous pursuit of the petitioner from the scene of
a crime, or on the basis of a threat to public safety, because
petitioner had already arrived home and had abandoned his car at
the scene of the accident. Nor can the arrest be justified as
necessary to preserve evidence of petitioner's blood alcohol level.
Even assuming that the underlying facts would support a finding of
this exigent circumstance, given the fact that the State had chosen
to classify the first offense for driving while intoxicated as a
noncriminal, civil forfeiture offense for which no imprisonment was
possible, a warrantless home arrest cannot be upheld simply because
evidence of the petitioner's blood alcohol level might have
dissipated while the police obtained a warrant. Pp.
466 U. S.
753-754.
108 Wis.2d 319,
321 N.W.2d
245, vacated and remanded.
BRENNAN, J., delivered the opinion of the Court, in which
MARSHALL, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined.
BLACKMUN, J., filed a concurring opinion,
post, p.
466 U. S. 755.
BURGER, C.J., filed a separate statement,
post, p.
466 U. S. 755.
WHITE, J., filed a dissenting opinion, in which REHNQUIST, J.,
joined,
post, p.
466 U. S.
756.
JUSTICE BRENNAN delivered the opinion of the Court.
Payton v. New York, 445 U. S. 573
(1980), held that, absent probable cause and exigent circumstances,
warrantless arrests in the home are prohibited by the Fourth
Amendment.
Page 466 U. S. 742
But the Court in that case explicitly refused
"to consider the sort of emergency or dangerous situation,
described in our cases as 'exigent circumstances,' that would
justify a warrantless entry into a home for the purpose of either
arrest or search."
Id. at
445 U. S. 583.
Certiorari was granted in this case to decide at least one aspect
of the unresolved question: whether, and if so under what
circumstances, the Fourth Amendment prohibits the police from
making a warrantless night entry of a person's home in order to
arrest him for a nonjailable traffic offense.
I
A
Shortly before 9 o'clock on the rainy night of April 24, 1978, a
lone witness, Randy Jablonic, observed a car being driven
erratically. After changing speeds and veering from side to side,
the car eventually swerved off the road and came to a stop in an
open field. No damage to any person or property occurred. Concerned
about the driver and fearing that the car would get back on the
highway, Jablonic drove his truck up behind the car so as to block
it from returning to the road. Another passerby also stopped at the
scene, and Jablonic asked her to call the police. Before the police
arrived, however, the driver of the car emerged from his vehicle,
approached Jablonic's truck, and asked Jablonic for a ride home.
Jablonic instead suggested that they wait for assistance in
removing or repairing the car. Ignoring Jablonic's suggestion, the
driver walked away from the scene.
A few minutes later, the police arrived and questioned Jablonic.
He told one officer what he had seen, specifically noting that the
driver was either very inebriated or very sick. The officer checked
the motor vehicle registration of the abandoned car and learned
that it was registered to the petitioner, Edward G. Welsh. In
addition, the officer noted that the petitioner's residence was a
short distance from the scene, and therefore easily within walking
distance.
Page 466 U. S. 743
Without securing any type of warrant, the police proceeded to
the petitioner's home, arriving about 9 p.m. When the petitioner's
stepdaughter answered the door, the police gained entry into the
house. [
Footnote 1] Proceeding
upstairs to the petitioner's bedroom, they found him lying naked in
bed. At this point, the petitioner was placed under arrest for
driving or operating a motor vehicle while under the influence of
an intoxicant, in violation of Wis.Stat. § 346.63(1) (1977).
[
Footnote 2] The petitioner was
taken to the police station, where he refused to submit to a
breath-analysis test.
B
As a result of these events, the petitioner was subjected to two
separate but related proceedings: one concerning his refusal to
submit to a breath test and the other involving the alleged code
violation for driving while intoxicated. Under the Wisconsin
Vehicle Code in effect in April 1978, one arrested for driving
while intoxicated under § 346.63(1) could be requested by a law
enforcement officer to provide breath, blood, or urine samples for
the purpose of determining the presence or quantity of alcohol.
Wis.Stat. § 343.305(1) (1975). If such a request was made, the
arrestee was required
Page 466 U. S. 744
to submit to the appropriate testing or risk a revocation of
operating privileges.
Cf. South Dakota v. Neville,
459 U. S. 553
(1983) (admission into evidence of a defendant's refusal to submit
to a blood alcohol test does not offend constitutional right
against self-incrimination). The arrestee could challenge the
officer's request, however, by refusing to undergo testing and then
asking for a hearing to determine whether the refusal was
justified. If, after the hearing, it was determined that the
refusal was not justified, the arrestee's operating privileges
would be revoked for 60 days. [
Footnote 3]
The statute also set forth specific criteria to be applied by a
court when determining whether an arrestee's refusal to take a
breath test was justified. Included among these criteria was a
requirement that, before revoking the arrestee's operating
privileges, the court determine that "the refusal . . . to submit
to a test was unreasonable." § 343.305(2)(b)(5) (1975). It is not
disputed by the parties that an arrestee's refusal to take a breath
test would be reasonable, and therefore operating privileges could
not be revoked, if the underlying arrest was not lawful. Indeed,
state law has consistently provided that a valid arrest is a
necessary prerequisite to the imposition of a breath test.
See
Scales v. State, 64 Wis.2d 485, 494,
219
N.W.2d 286, 292 (1974). [
Footnote 4] Although the statute
Page 466 U. S. 745
in effect in April, 1978, referred to reasonableness, the
current version of § 343.305 explicitly recognizes that one of the
issues that an arrestee may raise at a refusal hearing is "whether
[he] was lawfully placed under arrest for violation of
s.346.63(1)." §§ 343.305(3)(b)(5)(a), (8)(b) (1981-1982).
See
also 67 Op.Wis.Atty.Gen. No. 93-78 (1978) ("statutory
Page 466 U. S. 746
scheme . . . contemplates that a lawful arrest be made prior to
a request for submission to a test"). [
Footnote 5]
Separate statutory provisions control the penalty that might be
imposed for the substantive offense of driving while intoxicated.
At the time in question, the Vehicle Code provided that a first
offense for driving while intoxicated was a noncriminal violation
subject to a civil forfeiture proceeding for a maximum fine of
$200; a second or subsequent offense in the previous five years was
a potential misdemeanor that could be punished by imprisonment for
up to one year and a maximum fine of $500. Wis.Stat. § 346.65(2)
(1975). Since that time, the State has made only minor amendments
to these penalty provisions. Indeed, the statute continues to
categorize a first offense as a civil violation that allows for
only a monetary forfeiture of no more than $300. § 346.65(2)(a)
(Supp.1983-1984).
See State v. Albright, 98 Wis.2d 663,
672-673,
298 N.W.2d
196, 202 (App.1980).
C
As noted, in this case, the petitioner refused to submit to a
breath test; he subsequently filed a timely request for a refusal
hearing. Before that hearing was held, however, the State filed a
criminal complaint against the petitioner for driving while
intoxicated. [
Footnote 6] The
petitioner responded by
Page 466 U. S. 747
filing a motion to dismiss the complaint, relying on his
contention that the underlying arrest was invalid. After receiving
evidence at a hearing on this motion in July, 1980, the trial court
concluded that the criminal complaint would not be dismissed
because the existence of both probable cause and exigent
circumstances justified the warrantless arrest. The decision at the
refusal hearing, which was not held until September, 1980, was
therefore preordained. In fact, the primary issue at the refusal
hearing -- whether the petitioner acted reasonably in refusing to
submit to a breath test because he was unlawfully placed under
arrest,
see supra at
466 U. S.
744-746 -- had already been determined two months
earlier by the same trial court.
As expected, after the refusal hearing, the trial court
concluded that the arrest of the petitioner was lawful and that the
petitioner's refusal to take the breath test was therefore
unreasonable. [
Footnote 7]
Accordingly, the court issued an order suspending the petitioner's
operating license for 60 days. On appeal, the suspension order was
vacated by the Wisconsin Court of Appeals.
See State v.
Welsh, No. 80-1686 (May 26, 1981), App. 114-125. Contrary to
the trial court, the appellate court concluded that the warrantless
arrest of the petitioner in his home violated the Fourth Amendment
because the State, although demonstrating probable cause to arrest,
had not established the existence of exigent circumstances. The
petitioner's refusal to submit to a breath test was therefore
reasonable. [
Footnote 8] The
Supreme Court of Wisconsin, in turn, reversed the Court of Appeals,
relying on the existence of
Page 466 U. S. 748
three factors that it believed constituted exigent
circumstances: the need for "hot pursuit" of a suspect, the need to
prevent physical harm to the offender and the public, and the need
to prevent destruction of evidence.
See 108 Wis.2d 319,
336-338,
321 N.W.2d
245, 254-255 (1982). Because of the important Fourth Amendment
implications of the decision below, we granted certiorari. 459 U.S.
1200 (1983). [
Footnote 9]
II
It is axiomatic that the "physical entry of the home is the
chief evil against which the wording of the Fourth Amendment is
directed."
United States v. United States District Court,
407 U. S. 297,
407 U. S. 313
(1972). And a principal protection against unnecessary intrusions
into private dwellings is the warrant requirement imposed by the
Fourth Amendment on agents of the government who seek to enter the
home for purposes of search or arrest.
See Johnson v. United
States, 333 U. S. 10,
333 U. S. 13-14
(1948). [
Footnote 10] It is
not surprising, therefore,
Page 466 U. S. 749
that the Court has recognized, as
"a 'basic principle of Fourth Amendment law[,]' that searches
and seizures inside a home without a warrant are presumptively
unreasonable."
Payton v. New York, 445 U.S. at
445 U. S. 586.
See Coolidge v. New Hampshire, 403 U.
S. 443,
403 U. S.
474-475 (1971) ("a search or seizure carried out on a
suspect's premises without a warrant is
per se
unreasonable, unless the police can show . . . the presence of
exigent circumstances'"). See also Michigan v.
Clifford, 464 U. S. 287,
464 U. S.
296-297 (1984) (plurality opinion); Steagald v.
United States, 451 U. S. 204,
451 U. S.
211-212 (1981); McDonald v. United States,
335 U. S. 451,
335 U. S. 456
(1948); Johnson v. United States, supra, at 333 U. S. 13-15;
Boyd v. United States, 116 U. S. 616,
116 U. S. 630
(1886).
Consistently with these long-recognized principles, the Court
decided in
Payton v. New York, supra, that warrantless
felony arrests in the home are prohibited by the Fourth Amendment,
absent probable cause and exigent circumstances.
Id. at
445 U. S.
583-590. At the same time, the Court declined to
consider the scope of any exception for exigent circumstances that
might justify warrantless home arrests,
id. at
445 U. S. 583,
thereby leaving to the lower courts the initial application of the
exigent circumstances exception. [
Footnote 11] Prior decisions of this Court, however, have
emphasized that exceptions to the warrant requirement are "few in
number and carefully delineated,"
United States v. United
States District Court, supra, at
407 U. S. 318,
and that the police bear a heavy burden
Page 466 U. S. 750
when attempting to demonstrate an urgent need that might justify
warrantless searches or arrests. Indeed, the Court has recognized
only a few such emergency conditions,
see, e.g., United States
v. Santana, 427 U. S. 38,
427 U. S. 42-43
(1976) (hot pursuit of a fleeing felon);
Warden v. Hayden,
387 U. S. 294,
387 U. S.
298-299 (1967) (same);
Schmerber v. California,
384 U. S. 757,
384 U. S.
770-771 (1966) (destruction of evidence);
Michigan
v. Tyler, 436 U. S. 499,
436 U. S. 509
(1978) (ongoing fire), and has actually applied only the "hot
pursuit" doctrine to arrests in the home,
see Santana,
supra.
Our hesitation in finding exigent circumstances, especially when
warrantless arrests in the home are at issue, is particularly
appropriate when the underlying offense for which there is probable
cause to arrest is relatively minor. Before agents of the
government may invade the sanctity of the home, the burden is on
the government to demonstrate exigent circumstances that overcome
the presumption of unreasonableness that attaches to all
warrantless home entries.
See Payton v. New York, supra,
at
445 U. S. 586.
When the government's interest is only to arrest for a minor
offense, [
Footnote 12] that
presumption of unreasonableness is difficult to rebut, and the
government usually should be allowed to make such arrests only with
a warrant issued upon probable cause by a neutral and detached
magistrate.
This is not a novel idea. Writing in concurrence in
McDonald
v. United States, 335 U. S. 451
(1948), Justice Jackson explained why a finding of exigent
circumstances to justify a warrantless home entry should be
severely restricted when only a minor offense has been
committed:
Page 466 U. S. 751
"Even if one were to conclude that urgent circumstances might
justify a forced entry without a warrant, no such emergency was
present in this case. This method of law enforcement displays a
shocking lack of all sense of proportion. Whether there is
reasonable necessity for a search without waiting to obtain a
warrant certainly depends somewhat upon the gravity of the offense
thought to be in progress as well as the hazards of the method of
attempting to reach it. . . . It is to me a shocking proposition
that private homes, even quarters in a tenement, may be
indiscriminately invaded at the discretion of any suspicious police
officer engaged in following up offenses that involve no violence
or threats of it. While I should be human enough to apply the
letter of the law with some indulgence to officers acting to deal
with threats or crimes of violence which endanger life or security,
it is notable that few of the searches found by this Court to be
unlawful dealt with that category of crime. . . . While the
enterprise of parting fools from their money by the 'numbers'
lottery is one that ought to be suppressed, I do not think its
suppression is more important to society than the security of the
people against unreasonable searches and seizures. When an officer
undertakes to act as his own magistrate, he ought to be in a
position to justify it by pointing to some real immediate and
serious consequences if he postponed action to get a warrant."
Id. at
335 U. S.
459-460 (footnote omitted).
Consistently with this approach, the lower courts have looked to
the nature of the underlying offense as an important factor to be
considered in the exigent circumstances calculus. In a leading
federal case defining exigent circumstances, for example, the en
banc United States Court of Appeals for the District of Columbia
Circuit recognized that the gravity of the underlying offense was a
principal factor
Page 466 U. S. 752
to be weighed.
Dorman v. United States, 140
U.S.App.D.C. 313, 320, 435 F.2d 385, 392 (1970). [
Footnote 13] Without approving all of the
factors included in the standard adopted by that court, it is
sufficient to note that many other lower courts have also
considered the gravity of the offense an important part of their
constitutional analysis.
For example, courts have permitted warrantless home arrests for
major felonies if identifiable exigencies, independent of the
gravity of the offense, existed at the time of the arrest.
Compare United States v. Campbell, 581 F.2d 22 (CA2 1978)
(allowing warrantless home arrest for armed robbery when exigent
circumstances existed),
with Commonwealth v. Williams, 483
Pa. 293,
396 A.2d
1177 (1978) (disallowing warrantless home arrest for murder due
to absence of exigent circumstances). But of those courts
addressing the issue, most have refused to permit warrantless home
arrests for nonfelonious crimes.
See, e.g., State v.
Gertin, 190 Conn.440, 453, 461 A.2d 963, 970 (1983) ("The
[exigent circumstances] exception is narrowly drawn to cover cases
of real, and not contrived, emergencies. The exception is limited
to the investigation of serious crimes; misdemeanors are
excluded");
People v. Strelow, 96 Mich.App. 182, 190-193,
292 N.W.2d 517, 521-522 (1980).
See also People v.
Sanders, 59 Ill.App.3d 6, 374 N.E.2d 1315 (1978) (burglary
without weapons not grave offense of violence for this purpose);
State v. Bennett, 295 N.W.2d
5 (S.D.1980) (distribution of controlled substances not a grave
offense for these purposes).
But cf. State v. Penas, 200
Neb. 387,
263 N.W.2d
835 (1978) (allowing warrantless home arrest upon hot pursuit
from commission of misdemeanor in the officer's presence; decided
before
Payton);
State v. Niedermeyer, 48 Ore.App.
665, 617
Page 466 U. S. 753
P.2d 911 (1980) (allowing warrantless home arrest upon hot
pursuit from commission of misdemeanor in the officer's presence).
The approach taken in these cases should not be surprising. Indeed,
without necessarily approving any of these particular holdings or
considering every possible factual situation, we note that it is
difficult to conceive of a warrantless home arrest that would not
be unreasonable under the Fourth Amendment when the underlying
offense is extremely minor.
We therefore conclude that the common-sense approach utilized by
most lower courts is required by the Fourth Amendment prohibition
on "unreasonable searches and seizures," and hold that an important
factor to be considered when determining whether any exigency
exists is the gravity of the underlying offense for which the
arrest is being made. Moreover, although no exigency is created
simply because there is probable cause to believe that a serious
crime has been committed,
see Payton, application of the
exigent circumstances exception in the context of a home entry
should rarely be sanctioned when there is probable cause to believe
that only a minor offense, such as the kind at issue in this case,
has been committed.
Application of this principle to the facts of the present case
is relatively straightforward. The petitioner was arrested in the
privacy of his own bedroom for a noncriminal, traffic offense. The
State attempts to justify the arrest by relying on the hot-pursuit
doctrine, on the threat to public safety, and on the need to
preserve evidence of the petitioner's blood alcohol level. On the
facts of this case, however, the claim of hot pursuit is
unconvincing, because there was no immediate or continuous pursuit
of the petitioner from the scene of a crime. Moreover, because the
petitioner had already arrived home, and had abandoned his car at
the scene of the accident, there was little remaining threat to the
public safety. Hence, the only potential emergency claimed by the
State was the need to ascertain the petitioner's blood alcohol
level.
Page 466 U. S. 754
Even assuming, however, that the underlying facts would support
a finding of this exigent circumstance, mere similarity to other
cases involving the imminent destruction of evidence is not
sufficient. The State of Wisconsin has chosen to classify the first
offense for driving while intoxicated as a noncriminal, civil
forfeiture offense for which no imprisonment is possible.
See Wis.Stat. § 346.65(2) (1975); § 346.65(2)(a)
(Supp.1983-1984);
supra at
466 U. S. 746.
This is the best indication of the State's interest in
precipitating an arrest, and is one that can be easily identified
both by the courts and by officers faced with a decision to arrest.
See n 6,
supra. Given this expression of the State's interest, a
warrantless home arrest cannot be upheld simply because evidence of
the petitioner's blood alcohol level might have dissipated while
the police obtained a warrant. [
Footnote 14] To allow a warrantless home entry on these
facts would be to approve unreasonable police behavior that the
principles of the Fourth Amendment will not sanction.
III
The Supreme Court of Wisconsin let stand a warrantless,
night-time entry into the petitioner's home to arrest him for a
civil traffic offense. Such an arrest, however, is clearly
prohibited by the special protection afforded the individual in his
home by the Fourth Amendment. The petitioner's arrest was therefore
invalid, the judgment of the Supreme Court of Wisconsin is vacated,
and the case is
Page 466 U. S. 755
remanded for further proceedings not inconsistent with this
opinion. [
Footnote 15]
It is so ordered.
THE CHIEF JUSTICE would dismiss the writ as having been
improvidently granted and defer resolution of the question
presented to a more appropriate case.
[
Footnote 1]
The state trial court never decided whether there was consent to
the entry, because it deemed decision of that issue unnecessary in
light of its finding that exigent circumstances justified the
warrantless arrest. After reversing the lower court's finding of
exigent circumstances, the Wisconsin Court of Appeals remanded for
full consideration of the consent issue.
See State v.
Welsh, No. 80-1686 (May 26, 1981), App. 114-125. That remand
never occurred, however, because the Supreme Court of Wisconsin
reversed the Court of Appeals and reinstated the trial court's
judgment.
See 108 Wis.2d 319,
321
N.W.2d 245 (1982). For purposes of this decision, therefore, we
assume that there was no valid consent to enter the petitioner's
home.
[
Footnote 2]
Since the petitioner's arrest, § 346.63 has been amended to
provide that it is a code violation to drive or operate a motor
vehicle while under the influence of an intoxicant or while
evidencing certain blood or breath alcohol levels.
See
Wis.Stat. §§ 346.63(1)(a), (b) (1981-1982). This amendment,
however, has no bearing on the issues raised by the present
case.
[
Footnote 3]
Since the petitioner's arrest, this statute also has been
amended, with the current version found at Wis.Stat. § 343.305
(1981-1982). Although the procedures to be followed by the law
enforcement officer and the arrestee have remained essentially
unchanged, §§ 343.305(3), (8), the potential length of any
revocation of operating privileges has been increased, depending on
the arrestee's prior driving record, §§ 343.305(9)(a), (b). An
arrestee who improperly refuses to submit to a required test may
also be required to comply with an assessment order and a driver
safety plan, §§ 343.305(9)(c)(e). These amendments, however, also
have no direct bearing on the issues raised by the present
case.
[
Footnote 4]
"The implied consent law does not limit the right to take a
blood sample as an incident to a
lawful arrest.
It
should be emphasized, however, that the arrest, and therefore
probable cause for making it, must precede the taking of the blood
sample. We conclude that the sample was constitutionally taken
incident to the
lawful arrest."
64 Wis.2d at 494, 219 N.W.2d at 292 (emphasis added).
Nor is there any doubt that the Supreme Court of Wisconsin
applies federal constitutional standards when determining whether
an arrest, even for a nonjailable traffic offense, is lawful. The
court, for example, explained the basis for its holding in this
case as follows:
"The trial court revoked the defendant's motor vehicle
operator's license for sixty days pursuant to his unreasonable
refusal to submit to a breathalyzer test, as required by [state
statute]."
"The defendant challenges the officer's warrantless arrest in
his residence as violating the Fourth Amendment of the United
States Constitution and Article I, section 11 of the Wisconsin
Constitution. The [trial court] upheld this warrantless arrest,
concluding that probable cause to believe that the defendant had
been operating a motor vehicle while under the influence of an
intoxicant, coupled with the existence of exigent circumstances,
justified the officers' entry into the defendant's residence. . . .
[T]he court of appeals reversed the trial court, holding that,
although the officers' warrantless arrest was unreasonable, thereby
violating the Fourth and Fourteenth Amendments, the absence of a
finding regarding the consensual entry necessitated remanding the
case on that issue. We affirm the findings of the [trial court],
holding that the coexistence of probable cause and exigent
circumstances in this case justifies the warrantless arrest. . . .
"
"
* * * *"
"
To prevail in this case, the state must prove the
coexistence of probable cause and exigent circumstances, justifying
the officer's conduct at the defendant's residence. We hold that
there was ample evidence supporting the trial court's ruling that
the officer's entry was justified on the basis of both probable
cause and exigent circumstances. Entry to effect a warrantless
arrest in a residence is subject to the limitations imposed by both
the United States and the Wisconsin Constitutions. U.S.Const.
amend. IV; Wis. Const. art. 1, sec. 11."
108 Wis.2d at 320-321, 326-327, 321 N.W.2d at 246-247, 249-250
(emphasis added) (citations and footnotes omitted).
[
Footnote 5]
Because state law provides that evidence of the petitioner's
refusal to submit to a breath test is inadmissible if the
underlying arrest was unlawful, this case does not implicate the
exclusionary rule under the Federal Constitution.
[
Footnote 6]
The petitioner was charged with a criminal misdemeanor because
this was his second such citation in the previous five years.
See § 346.65(2) (1975). Although the petitioner was
subject to a criminal charge, the police conducting the warrantless
entry of his home did not know that the petitioner had ever been
charged with, or much less convicted of, a prior violation for
driving while intoxicated. It must be assumed, therefore, that, at
the time of the arrest, the police were acting as if they were
investigating and eventually arresting for a nonjailable traffic
offense that constituted only a civil violation under the
applicable state law.
See Beck v. Ohio, 379 U. S.
89,
379 U. S. 91, 96
(1964).
[
Footnote 7]
When ruling from the bench after the refusal hearing, the trial
judge specifically indicated:
"[T]he Court is bound by its earlier ruling that that was a
valid arrest. And, I think [counsel for the petitioner] certainly
will have the right to challenge that on appeal if he appeals this
matter, as well as the previous ruling should there be a conviction
on the underlying charge."
App. 111.
See also id. at 112-113.
[
Footnote 8]
The court remanded the case for further findings as to whether
the police had entered the petitioner's home with consent.
See n 1,
supra.
[
Footnote 9]
Although the state courts differed in their respective
conclusions concerning exigent circumstances, they each found that
the facts known to the police at the time of the warrantless home
entry were sufficient to establish probable cause to arrest. The
petitioner has not challenged that finding before this Court.
The parallel criminal proceedings against the petitioner,
see supra at
466 U. S.
746-747, and n. 6, resulted in a misdemeanor conviction
for driving while intoxicated. During the jury trial, held in early
1982, the State introduced evidence of the petitioner's refusal to
submit to a breath test. His appeal from that conviction, now
before the Wisconsin Court of Appeals, has been stayed pending our
decision in this case.
See Brief for Petitioner 17, n.
5.
[
Footnote 10]
In
Johnson, Justice Jackson eloquently explained the
warrant requirement in the context of a home search:
"The point of the Fourth Amendment, which often is not grasped
by zealous officers, is not that it denies law enforcement the
support of the usual inferences which reasonable men draw from
evidence. Its protection consists in requiring that those
inferences be drawn by a neutral and detached magistrate, instead
of being judged by the officer engaged in the often competitive
enterprise of ferreting out crime. . . . The right of officers to
thrust themselves into a home is . . . a grave concern, not only to
the individual but to a society which chooses to dwell in
reasonable security and freedom from surveillance. When the right
of privacy must reasonably yield to the right of search is, as a
rule, to be decided by a judicial officer, not by a policeman or
government enforcement agent."
333 U.S. at
333 U. S. 13-14
(footnote omitted).
[
Footnote 11]
Our decision in
Payton, allowing warrantless home
arrests upon a showing of probable cause and exigent circumstances,
was also expressly limited to felony arrests.
See, e.g.,
445 U.S. at
445 U. S. 574,
445 U. S. 602.
Because we conclude that, in the circumstances presented by this
case, there were no exigent circumstances sufficient to justify a
warrantless home entry, we have no occasion to consider whether the
Fourth Amendment may impose an absolute ban on warrantless home
arrests for certain minor offenses.
[
Footnote 12]
Even the dissenters in
Payton, although believing that
warrantless home arrests are not prohibited by the Fourth
Amendment, recognized the importance of the felony limitation on
such arrests.
See id. at
445 U. S.
616-617 (WHITE, J., joined by BURGER, C.J., and
REHNQUIST, J., dissenting) ("The felony requirement guards against
abusive or arbitrary enforcement and ensures that invasions of the
home occur only in case of the most serious crimes").
[
Footnote 13]
See generally Donnino & Girese, Exigent
Circumstances for a Warrantless Home Arrest, 45 Albany L.Rev. 90
(1980); Harbaugh & Faust, "Knock on Any Door" -- Home Arrests
After
Paton and
Steagald, 86 Dick.L.Rev. 191,
220-233 (1982); Note, Exigent Circumstances for Warrantless Home
Arrests, 23 Ariz.L.Rev. 1171 (1981).
[
Footnote 14]
Nor do we mean to suggest that the prevention of drunken driving
is not properly of major concern to the States. The State of
Wisconsin, however, along with several other States,
see,
e.g., Minn.Stat. § 169.121 subd. 4 (1982); Neb.Rev.Stat. §
39-669.07(1) (Supp.1983); S.D.Codified Laws § 32-23-2 (Supp.1983),
has chosen to limit severely the penalties that may be imposed
after a first conviction for driving while intoxicated. Given that
the classification of state crimes differs widely among the States,
the penalty that may attach to any particular offense seems to
provide the clearest and most consistent indication of the State's
interest in arresting individuals suspected of committing that
offense.
[
Footnote 15]
On remand, the state courts may consider whether the
petitioner's arrest was justified because the police had validly
obtained consent to enter his home.
See n 1,
supra.
JUSTICE BLACKMUN, concurring.
I join the Court's opinion but add a personal observation.
I yield to no one in my profound personal concern about the
unwillingness of our national consciousness to face up to -- and to
do something about -- the continuing slaughter upon our Nation's
highways, a good percentage of which is due to drivers who are
drunk or semi-incapacitated because of alcohol or drug ingestion. I
have spoken in these Reports to this point before.
Perez v.
Campbell, 402 U. S. 637,
402 U. S. 657,
and
402 U. S. 672
(1971) (opinion concurring in part and dissenting in part);
Tate v. Short, 401 U. S. 395,
401 U. S. 401
(1971) (concurring opinion).
See also South Dakota v.
Neville, 459 U. S. 553,
459 U. S.
555-559 (1983).
And it is amazing to me that one of our great States -- one
which, by its highway signs, proclaims to be diligent and emphatic
in its prosecution of the drunken driver -- still classifies
driving while intoxicated as a civil violation that allows only a
money forfeiture of not more than $300 so long as it is a first
offense. Wis.Stat. § 346.65(2)(a) (Supp.1983-1984). The State, like
the indulgent parent, hesitates to discipline the spoiled child
very much, even though the child is engaging in an act that is
dangerous to others who are law abiding and helpless in the face of
the child's act.
See ante at
466 U. S. 754,
n. 14 (citing other statutes). Our personal convenience still
weighs heavily in the balance, and the highway deaths and
Page 466 U. S. 756
injuries continue. But if Wisconsin and other States choose by
legislation thus to regulate their penalty structure, there is,
unfortunately, nothing in the United States Constitution that says
they may not do so.
JUSTICE WHITE, with whom JUSTICE REHNQUIST joins,
dissenting.
At common law,
"a peace officer was permitted to arrest without a warrant for a
misdemeanor or felony committed in his presence as well as for a
felony not committed in his presence if there was reasonable ground
for making the arrest."
United States v. Watson, 423 U.
S. 411,
423 U. S. 418
(1976). But the requirement that a misdemeanor must have occurred
in the officer's presence to justify a warrantless arrest is not
grounded in the Fourth Amendment,
see Street v. Surdyka,
492 F.2d 368, 371-372 (CA4 1974); 2 W. LaFave, Search and Seizure §
5.1 (1978), and we have never held that a warrant is
constitutionally required to arrest for nonfelony offenses
occurring out of the officer's presence. Thus,
"it is generally recognized today that the common law authority
to arrest without a warrant in misdemeanor cases may be enlarged by
statute, and this has been done in many of the states."
E. Fisher, Laws of Arrest 130 (1967);
see ALI, Model
Code of Pre-Arraignment Procedure, Appendix X (1975); 1 C.
Alexander, The Law of Arrest 445-447 (1949); Wilgus, Arrest Without
a Warrant, 22 Mich.L.Rev. 541, 673, 706 (1924).
Wisconsin is one of the States that have expanded the common law
authority to arrest for nonfelony offenses. Wisconsin Stat. §
345.22 (Supp.1983-1984) provides that
"[a] person may be arrested without a warrant for the violation
of a traffic regulation if the traffic officer has reasonable
grounds to believe that the person is violating or has violated a
traffic regulation."
Relying on this statutory authority, officers of the Madison
Police Department arrested Edward Welsh in a bedroom in his home
for violating Wis.Stat. § 346.63(1) (1977), which proscribes the
operation of a motor
Page 466 U. S. 757
vehicle while intoxicated. Welsh refused to submit to a breath
or blood test, and his operator's license was eventually revoked
for 60 days for this reason pursuant to Wis.Stat. § 343.305
(1975).
In the civil license revocation proceeding, Welsh argued that
his arrest in his house without a warrant was unconstitutional
under the Fourth and Fourteenth Amendments to the Federal
Constitution, and that his refusal to submit to the test could not
be used against him. This contention was not based on the
proposition that using the refusal in the revocation proceeding
would contravene federal law, but rather rested on the fact that
Wis.Stat. § 343.305(2)(b)(5) (1975) had been interpreted to require
that an arrest be legal if a refusal to be tested is to be the
basis for a license revocation.
On review of the license revocation, the Supreme Court of
Wisconsin appears to have recognized that, under the Wisconsin
statute, Welsh's license was wrongfully revoked if the officers who
arrested him had violated the Federal Constitution. 108 Wis.2d 319,
321 N.W.2d
245 (1982).
See Scales v. State, 64 Wis.2d 485, 494,
219 N.W.2d
286, 292 (1974). The court acknowledged that "the individual's
right to privacy in the home is a fundamental freedom," and made
clear that the State bore the burden of establishing exigent
circumstances justifying a warrantless in-home arrest. 108 Wis.2d
at 327, 321 N.W.2d at 250. But it discerned a strong state interest
in combating driving under the influence of alcohol,
id.
at 334-335, 321 N.W.2d at 253-254, and held that the warrantless
arrest was proper because (1) the officers were in hot pursuit of a
defendant seeking to avoid a chemical sobriety test; (2) Welsh
posed a potential threat to public safety; and (3) "[w]ithout an
immediate blood alcohol test, highly reliable and persuasive
evidence facilitating the state's proof of [Welsh's] alleged
violation . . . would be destroyed."
Id. at 338, 321
N.W.2d at 255. For two reasons, I would not overturn the judgment
of the Supreme Court of Wisconsin.
Page 466 U. S. 758
First, it is not at all clear to me that the important
constitutional question decided today should be resolved in a case
such as this. Although Welsh argues vigorously that the State
violated his federal constitutional rights, he at no point relied
on the exclusionary rule, and he does not contend that the Federal
Constitution or federal law provides the remedy he seeks. As a
general rule, this Court "reviews judgments, not statements in
opinions."
Black v. Cutter Laboratories, 351 U.
S. 292,
351 U. S. 297
(1956). Because the Court does not purport tc hold that federal law
requires the conclusion that Welsh's refusal to submit to a
sobriety test was reasonable, it is not clear to me how the
judgment of the Supreme Court of Wisconsin offends federal law.
It is true that, under the Wisconsin statutory scheme, an
arrestee's refusal to take a breath or blood test would be
reasonable, and would not justify revocation of operating
privileges if the underlying arrest violated the Fourth Amendment
or was otherwise unlawful. What the State has done, however, is to
attach consequences to an arrest found unlawful under the Federal
Constitution that we have never decided federal law itself would
attach. The Court has occasionally taken jurisdiction over cases in
which the States have provided remedies for violations of federally
defined obligations.
E.g., Moore v. Chesapeake & Ohio R.
Co., 291 U. S. 205
(1934). But it has done so in contexts where state remedies are
employed to further federal policies.
See Greene, Hybrid
State Law in the Federal Courts, 83 Harv.L.Rev. 289, 300 (1969).
The Fourth Amendment of course applies to the police conduct at
issue here. In providing that a driver may reasonably refuse to
submit to a sobriety test if he was unlawfully arrested,
Wisconsin's Legislature and courts are pursuing a course that they
apparently hope will reduce police illegality and safeguard their
citizens' rights. Although the State is entitled to draw this
conclusion and to implement it as a matter of state law, I am very
doubtful that the policies underlying the Fourth Amendment
would
Page 466 U. S. 759
require exclusion of the fruits of an illegal arrest in a civil
proceeding to remove from the highways a person who insists on
driving while under the influence of alcohol. If that is the case
-- if it would violate no federal policy to revoke Welsh's license
even if his arrest was illegal -- there is no satisfactory reason
for us to review the Supreme Court of Wisconsin's judgment
affirming the revocation, even if that court mistakenly applied the
Fourth Amendment. For me, this is ample reason not to disturb the
judgment.
In any event, I believe that the state court properly construed
the Fourth Amendment. It follows from
Payton v. New York,
445 U. S. 573
(1980), that warrantless nonfelony arrests in the home are
prohibited by the Fourth Amendment absent probable cause and
exigent circumstances. Although I continue to believe that the
Court erred in
Payton in requiring exigent circumstances
to justify warrantless in-home felony arrests,
id. at
445 U. S. 603
(WHITE, J., dissenting), I do not reject the obvious logical
implication of the Court's decision. But I see little to commend an
approach that looks to "the nature of the underlying offense as an
important factor to be considered in the exigent circumstances
calculus."
Ante at
466 U. S.
751.
The gravity of the underlying offense is, I concede, a factor to
be considered in determining whether the delay that attends the
warrant-issuance process will endanger officers or other persons.
The seriousness of the offense with which a suspect may be charged
also bears on the likelihood that he will flee and escape
apprehension if not arrested immediately. But if, under all the
circumstances of a particular case, an officer has probable cause
to believe that the delay involved in procuring an arrest warrant
will gravely endanger the officer or other persons or will result
in the suspect's escape, I perceive no reason to disregard those
exigencies on the ground that the offense for which the suspect is
sought is a "minor" one.
Page 466 U. S. 760
As a practical matter, I suspect, the Court's holding is likely
to have a greater impact in cases where the officer acted without a
warrant to prevent the imminent destruction or removal of evidence.
If the evidence the destruction or removal of which is threatened
documents only the suspect's participation in a "minor" crime, the
Court apparently would preclude a finding that exigent
circumstances justified the warrantless arrest. I do not understand
why this should be so.
A warrantless home entry to arrest is no more intrusive when the
crime is "minor" than when the suspect is sought in connection with
a serious felony. The variable factor, if there is one, is the
governmental interest that will be served by the warrantless entry.
Wisconsin's Legislature and its Supreme Court have both concluded
that warrantless in-home arrests under circumstances like those
present here promote valid and substantial state interests. In
determining whether the challenged governmental conduct was
reasonable, we are not bound by these determinations. But nothing
in our previous decisions suggests that the fact that a State has
defined an offense as a misdemeanor for a variety of social,
cultural, and political reasons necessarily requires the conclusion
that warrantless in-home arrests designed to prevent the imminent
destruction or removal of evidence of that offense are always
impermissible. If anything, the Court's prior decisions support the
opposite conclusion.
See Camara v. Municipal Court,
387 U. S. 523,
387 U. S.
539-540 (1967);
McDonald v. United States,
335 U. S. 451,
335 U. S.
454-455 (1948).
See also State v. Pena, 200
Neb. 387,
263 N.W.2d
835 (1978);
State v. Niedermeyer, 48 Ore.App. 665,
617 P.2d
911 (1980),
cert. denied, 450 U.S. 1042 (1981).
A test under which the existence of exigent circumstances turns
on the perceived gravity of the crime would significantly hamper
law enforcement and burden courts with pointless litigation
concerning the nature and gradation of various crimes. The Court
relies heavily on Justice Jackson's
Page 466 U. S. 761
concurring opinion in
McDonald v. United States, supra,
which, in minimizing the gravity of the felony at issue there,
illustrates that the need for an evaluation of the seriousness of
particular crimes could not be confined to offenses defined by
statute as misdemeanors. To the extent that the Court implies that
the seriousness of a particular felony is a factor to be considered
in deciding whether the need to preserve evidence of that felony
constitutes an exigent circumstance justifying a warrantless
in-home arrest, I think that its approach is misguided. The
decision to arrest without a warrant typically is made in the field
under less-than-optimal circumstances; officers have neither the
time nor the competence to determine whether a particular offense
for which warrantless arrests have been authorized by statute is
serious enough to justify a warrantless home entry to prevent the
imminent destruction or removal of evidence.
This problem could be lessened by creating a bright-line
distinction between felonies and other crimes, but the Court --
wisely in my view -- does not adopt such an approach. There may
have been a time when the line between misdemeanors and felonies
marked off those offenses involving a sufficiently serious threat
to society to justify warrantless in-home arrests under exigent
circumstances. But the category of misdemeanors today includes
enough serious offenses to call into question the desirability of
such line drawing.
See ALI, Model Code of Pre-Arraignment
Procedures 131-132 (Prelim.Draft No. 1, 1965) (discussing
ultimately rejected provision abandoning "in-presence" requirement
for misdemeanor arrests). If I am correct in asserting that a
bright-line distinction between felonies and misdemeanors is
untenable and that the need to prevent the imminent destruction or
removal of evidence of some nonfelony crimes can constitute an
exigency justifying warrantless in-home arrests under certain
circumstances, the Court's approach will necessitate a case-by-case
evaluation of the seriousness of
Page 466 U. S. 762
particular crimes, a difficult task for which officers and
courts are poorly equipped.
Even if the Court were correct in concluding that the gravity of
the offense is an important factor to consider in determining
whether a warrantless in-home arrest is justified by exigent
circumstances, it has erred in assessing the seriousness of the
civil forfeiture offense for which the officers thought they were
arresting Welsh. As the Court observes, the statutory scheme in
force at the time of Welsh's arrest provided that the first offense
for driving under the influence of alcohol involved no potential
incarceration. Wis.Stat. § 346.65(2) (1975). Nevertheless, this
Court has long recognized the compelling state interest in highway
safety,
South Dakota v. Neville, 459 U.
S. 553,
459 U. S.
558-559 (1983), the Supreme Court of Wisconsin
identified a number of factors suggesting a substantial and growing
governmental interest in apprehending and convicting intoxicated
drivers and in deterring alcohol-related offenses, 108 Wis.2d at
334-335, 321 N.W.2d at 253-254, and recent actions of the Wisconsin
Legislature evince its
"belief that significant benefits, in the reduction of the costs
attributable to drunk driving, may be achieved by the increased
apprehension and conviction of even first time . . .
offenders."
Note, 1983 Wis.L.Rev. 1023, 1053.
The Court ignores these factors, and looks solely to the
penalties imposed on first offenders in determining whether the
State's interest is sufficient to justify warrantless in-home
arrests under exigent circumstances.
Ante at
466 U. S. 754.
Although the seriousness of the prescribed sanctions is a valuable
objective indication of the general normative judgment of the
seriousness of the offense,
Baldwin v. New York,
399 U. S. 66,
399 U. S. 68
(1970) (plurality opinion), other evidence is available and should
not be ignored.
United States v. Craner, 652 F.2d 23,
24-27 (CA9 1981);
United States v. Woods, 450 F.
Supp. 1335, 1340 (Md.1978);
Brady v.
Blair, 427 F. Supp.
5, 9 (SD Ohio 1976). Although first offenders are subjected
Page 466 U. S. 763
only to civil forfeiture under the Wisconsin statute, the
seriousness with which the State regards the crime for which Welsh
was arrested is evinced by (1) the fact that defendants charged
with driving under the influence are guaranteed the right to a jury
trial, Wis.Stat. § 345.43 (1981-1982); (2) the legislative
authorization of warrantless arrests for traffic offenses occurring
outside the officer's presence, Wis.Stat. § 345.22 (1981-1982); and
(3) the collateral consequence of mandatory license revocation that
attaches to all convictions for driving under the influence,
Wis.Stat. § 343.30(1q) (1981-1982).
See also District of
Columbia v. Colts, 282 U. S. 63
(1930);
United States v. Craner, supra. It is possible,
moreover, that the legislature consciously chose to limit the
penalties imposed on first offenders in order to increase the ease
of conviction and the overall deterrent effect of the enforcement
effort.
See Comment, 35 Me.L.Rev. 385, 395, n. 35,
399-400, 403 (1983).
In short, the fact that Wisconsin has chosen to punish the first
offense for driving under the influence with a fine rather than a
prison term does not demand the conclusion that the State's
interest in punishing first offenders is insufficiently substantial
to justify warrantless in-home arrests under exigent circumstances.
As the Supreme Court of Wisconsin observed,
"[t]his is a model case demonstrating the urgency involved in
arresting the suspect in order to preserve evidence of the
statutory violation."
108 Wis.2d at 338, 321 N.W.2d at 255. We have previously
recognized that
"the percentage of alcohol in the blood begins to diminish
shortly after drinking stops, as the body functions to eliminate it
from the system."
Schmerber v. California, 384 U.
S. 757,
384 U. S. 770
(1966). Moreover, a suspect could cast substantial doubt on the
validity of a blood or breath test by consuming additional alcohol
upon arriving at his home. In light of the promptness with which
the officers reached Welsh's house, therefore, I would hold that
the need to prevent the imminent and ongoing destruction of
evidence of a serious
Page 466 U. S. 764
violation of Wisconsin's traffic laws provided an exigent
circumstance justifying the warrantless in-home arrest.
See
also e.g., People v. Ritchie, 130 Cal.
App. 3d 455,
181 Cal. Rptr.
773 (1982);
People v. Smith, 175 Colo. 212,
486 P.2d 8
(1971);
State v. Findlay, 259 Iowa 733,
145 N.W.2d 650
(1966);
State v. Amaniera 132 N.J.Super. 597,
334 A.2d 398 (1974);
State v. Osburn, 13 Ore.App. 92,
508 P.2d
837 (1973).
I respectfully dissent.