STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Edward G. WELSH, Defendant-Appellant.
No. 80-1686
Supreme Court of Wisconsin
Argued March 1, 1982. —Decided July 2, 1982.
319, 321 N.W.2d 245
For the defendant-appellant there was a brief and oral argument by Archie E. Simonson of Madison.
WILLIAM G. CALLOW, J. This is a review of a May 26, 1981, decision of the court of appeals vacating an order of Dane County Circuit Judge Mark A. Frankel and remanding the matter to the circuit court for further proceedings. We reverse the decision of the court of appeals and affirm the order of the circuit court. 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
Prior to resolving the merits of this case, the state challenges the single-judge ruling of the court of appeals, contending that this should have been decided by a three-judge panel.
The factual sequence underlying this dispute can be summarized through the testimony of the sole witness, Randy Jablonic. On the evening of April 24, 1978, Jablonic, a University of Wisconsin rowing coach, was driving alone in his truck. It was raining. He noticed that the driver of the automobile ahead of him was experiencing difficulty in operating his vehicle. In addition to the automobile‘s erratic speed, it was moving from side to side, crossing into the opposing lane, barely missing a road sign, a median strip, and the oncoming traffic. The vehicle ultimately left the road entirely and drove into a field where it either became stuck or stalled.
Jablonic, concerned that the car might return to the road and fearful “[b]ecause I realized [he] would probably kill somebody” remained at the scene blocking the car to be certain that the car did not return to the highway. A motorist stopped and Jablonic requested her to alert the police. An officer arrived at the scene shortly thereafter.
Prior to the officer‘s arrival, however, the driver left the automobile in the field and approached Jablonic‘s truck. Jablonic testified that the driver asked him for a
The police arrived “practically immediately upon, . . . his departure” and spoke with Jablonic who had remained at the scene. Jablonic responded to the officer‘s inquiry by describing his observations of the automobile and its driver. Jablonic told the officer that he believed that the driver “was very inebriated or very sick or not very much in possession of his faculties or ability to perform.” When asked at trial what formed the basis of his opinion that the defendant was inebriated, he testified “. . . the erratic motion of the car, and then the staggering and slurred speech that [the driver] exhibited when he was trying to talk” constituted the basis upon which he formed his conclusion that the driver was intoxicated. He further described the driver‘s walk as unsteady and unsure. He stated that when he spoke with the driver at the roadside he had remained in his truck. Consequently, he declared that he had “no opportunity to smell the [driver‘s] breath.” Jablonic further testified that he commonly “see[s] many inebriated people, unfortunately,” demonstrating his familiarity with the symptons of intoxication. Although Jablonic stated that “he [the driver] was very inebriated or very sick or not very much in possession of his faculties or ability to perform,” this statement, when considered within the context of the entire record, demonstrates the propriety of the trial judge‘s conclusion that Jablonic conveyed the definite impression that the driver was intoxicated. Jablonic‘s reference to
At the scene of the accident the officer ran a license check to determine the vehicle owner‘s identity. Although the officer could not conclude that the owner of the abandoned automobile was necessarily its driver, he did correctly recall that he was involved in the arrest of the owner in an alcohol-related disturbance within two weeks prior to this accident. The officer‘s recollection was sufficiently pertinent to provide additional evidence to support the existence of probable cause.
Acting upon his collective knowledge of the situation, the officer proceeded immediately to the defendant‘s residence which was located near the scene of the accident. Attempting to confirm his belief that the defendant had, in fact, been driving his abandoned vehicle while under the influence of an intoxicant, the officer, arriving at the defendant‘s residence, asked the defendant‘s stepdaughter if the defendant was at home. The officer testified that she replied, he had “just stumbled in . . . .” “He is upstairs, and motioned that way—towards the stairs, allowing us to pass.” Proceeding up the staircase, the officer encountered the defendant‘s wife. He testified that she asked:
“‘What is going on,’ . . . again, we explained there had been an accident, . . . And we would like to speak with him because we thought he was probably under the influence of an intoxicant. And she, at that point, also gave her consent for us to go up, because she said, ‘Yes, he is in bed. He just got into bed. And something has to be done,’ referring to the fact that she recognized me from the earlier—I assumed she recognized me from the
Affirming the trial court‘s dual finding of probable cause and exigent circumstances vitiates the need to remand this case to the circuit court on the issue of consеnsual entry, as was ordered by the court of appeals.
The issue in the present case addresses the delicate interrelationship between the individual‘s right to privacy and the governmental responsibility to enforce the law in a manner which serves the public interest. To prevail in this case, the state must prove the co-existence of probable cause5 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 circum-
described in our cases as ‘exigent circumstances,’ that would justify a warrantless entry into a home for the purpose of either arrest or search.” 445 U.S. at 583 (footnote omitted) (emphasis added).
Likewise, the defendant‘s warrantless arrest in Laasch v. State occurred absent a showing of exigent circumstances. In Laasch, the issue before this Court was “whether, in the absence of any exigent circumstances, a police officer may enter a suspect‘s home without consent in order to make a warrantless arrest.” 84 Wis. 2d at 593 (emphasis added). Admittedly of less significance than the absence of exigency, the arresting officers in Laasch were arguably afforded ample time to obtain a warrant, as there was a thirteen-day interval between the defendant‘s offense and her arrest. Id. at 588-89.
Consequently, the time lapse and the absence of exigent circumstances in both Payton and Laasch limit their applicability to the present сase. In this case, we hold that the existence of exigent circumstances contributes to our justification of Welsh‘s arrest.
I. PROBABLE CAUSE
The probable cause standard required to arrest dictates that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed the offense. The evidence must show that there is more than a possibility or suspicion that the defendant committed the offense. The evidence need not reach the level of proof beyond a reasonable doubt or even that guilt is more likеly than not. State v. Paszek, 50 Wis. 2d at 624-25. In State v. Paszek, 50 Wis. 2d at 624-25, we described probable cause as follows:
“Probable cause to arrest refers to that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime. It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not. It is only necessary that the
information lead a reasonable officer to believe that guilt is more than a possibility, and it is well established that the belief may be predicated in part upon hearsay information. The quantum of information which constitutes probable cause to arrest must be measured by the facts of the particular case. Probable cause is defined in Draper v. United States, supra, p. 313, as:
“‘In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.’ Probable cause exists where ‘the facts and circumstances within [the arresting officers‘] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. Carroll v. United States, 267 U.S. 132.“‘” State v. Paszek, 50 Wis. 2d at 624-25 (citations omitted).
To effectuate a warrantless, nonconsensual entry into the residence, in addition tо exigent circumstances the officers had to have probable cause to believe that the defendant had committed the offense of driving while under the influence of an intoxicant at the time they entered the home.
Examination of the record demonstrates the existence of probable cause, satisfying the first requisite of the two-pronged test necessary to justify the officer‘s warrantless entry and arrest of the defendant. In this case, the officer had a substantial amount of reliable information, indicating to a reasonable police officer that the defendant had probably violated the statute prohibiting driving while under the influence of an intoxicant. See
Arriving at the scene of the accident the officer was met by Jablonic, the sole witness to the driver‘s conduct.
“““that a valid arrest without a warrant may be made solely by reason of information communicated by a reliable informant. . . . A citizen who purports to be a victim of or to have witnessed a crime is a reliable informant even though his reliability has not theretofore been proved or tested. . . . The rationale underlying this principle is that such a person, as the observer of criminal activity, acts openly in aid of law enforcement when he reports the crime to the police.““” 102 Wis. 2d at 395-96. (emphasis added) (emphasis in original omitted) [quoting State v. Paszek, 50 Wis. 2d at 631].
Consequently, Jablonic‘s information satisfies both prongs of the Cheers test for reliability.
In the Cheers case we discussed an additional “factor to be considered in determining whether probable cause exists,” namely, that the defendant‘s “conduct and retreat or ‘flight’ from the police officers’ show of authority immediately prior to the time of his arrest certainly constitutes evidence of consciousness of guilt.” State v. Cheers, 102 Wis. 2d at 391. The defendant‘s statements, as well as his immediate retreat from the scene in fleeing to his home at the mention of police officers, clearly “constitutes evidence of consciousness of guilt” and is an additional factor buttressing our conclusion that the trial court properly found the existence of probable cause.
Jablonic told the officer at the scene of the accident that the officer had arrived “practically immediately upon [the driver‘s] departure.” The officer‘s license check identified the owner of the vehicle. As we have noted, ownership does not necessarily indicate the driver‘s identity; however, the officer correctly recalled his involvement in the recent arrest of the owner in an al-
Acting upon his collective knowledge оf the situation, the officer proceeded immediately to the defendant‘s residence and was told that the defendant “had just stumbled in.” While the officer, prior to his arrival at the house, had probable cause to believe that the defendant was the driver of the abandoned automobile, the defendant‘s stepdaughter‘s statement provided additional evidence in support of the proposition that the defendant was the driver because she said he had stumbled in only moments before the officer had arrived.
The word “stumbled” buttressed the witness‘s belief that the defendant was intoxicated. The fact that the defendant had just returned home on this rainy night supports the officer‘s belief that the defendant was the driver of his just abandoned car. The officer believed that he had probable cause, declaring that he “thought [the driver] was probably under the influence of an intoxicant.”
Although the defendant contends that the officer proceeded to the residence to determine whether he had sufficient evidence to establish probable cause to enter and arrest the defendant, we do not find this contention persuasive. The officer, acting upon Jablonic‘s observations, coupled with his own accurate recollection of his involvement in the arrest of the defendant in a recent alcohol-related disturbance, had probable cause when he proceeded to the residence. The officer‘s conversation with the defendant‘s stepdaughter before entering the home provided further evidence establishing the existence of probable cause.
The officer‘s conversation with the defendant‘s stepdaughter before entering the home provided further evidence establishing the existence of probable cause. The officer testified that,
“. . . it was my mental intent to go in the house and determine if he was in his bedroom, and what condition he was in, and whether or not he had anything to drink prior to leaving where the accident or the incident took place, until the time he got into bed. It was my intent to investigate it up to that point and make a determination.”
The defendant argues that this statement demonstrates that the officer did not believe he had probable cause and was going to the defendant‘s bedroom solely to investigate. The officer‘s statement, when considered along with his declaration that the defendant “was probably under the influence of an intoxicant,” demonstrates that the investigating statement is not being read by the defendant in the context of the entire record. The officer, correctly believing that he had probable cause, merely recognized that he was not absolutely positive that the defendant had been operating his automobile while under the influence of an intoxicant. The defendant could have been drinking after he returned to his home, thereby rendering the results of a blood alcohol test meaningless. Moreover, if the defendant had been ill, rather than intoxicated, the officer would have changed his original conclusion on which he had predicated the existence of probable cause. Consequently, the officer‘s statement merely acknowledged that he was not absolutely certain
The foregoing evidence, when myopically parsed, may not individually support a finding of probable cause. When examined collectively, however, it unquestionably indicates “that quantum of evidence which would lead a reasonable police officer to believe that the defendant [driver] probably [violated the statute prohibiting driving while under the influence of an intoxicant].”7 State v. Cheers, 102 Wis. 2d at 386; see Henry v. United States, supra;
In considering the governmental interest, it is approрriate to note that driving under the influence is a pervasive problem of substantial proportion. In Wisconsin in 1981, there was a 5 percent increase in drunken driving convictions from 1980. Further, approximately 50 per-
In addition to the existence of probable cause, accompanying proof of exigent circumstances must be shown in order to justify this warrantless entry. Proof of exigency vitiates the need for a warrant under those circumstances when obtaining a warrant could frustrate the arrest. An analysis of the facts demonstrates that, in this case, exigent circumstances justified this officer‘s warrantless entry to effect the arrest of the defendant.
Frequently, proof that the officer is in hot pursuit of the suspect constitutes exigency. The hot pursuit doctrine evolved to encompass situations where time was of the essence. In other words, when requiring the police to obtain a warrant would constitute undue delay, the hot pursuit doctrine is applicable. In this case, time was of the essence. The inherent nature of the offense demanded the suspect‘s immediate apprehension to accommodate the dictates of the blood alcohol test statute.
The defendant, fearful of the officer‘s impending arrival and perhaps recognizing the possibility of being requested to submit to a blood alcohol test, left the scene of the accident upon discovering that the officer had been summoned. Fleeing to his home, in an attempt to avoid a confrontation with the officer, the defendant‘s hasty departure resulted in the abandonment of his car. If the officer had retreated and sought to obtain a warrant, rather than immediately pursuing and arresting the suspect, the requirements of the blood alcohol statutes would have been frustrated.
The imminent threat to safety doctrine also constitutes exigent circumstances. The sole purpose of the blood al-
The officer concluded that he had probable cause to believe that the defendant had been operating a motor vehicle while under the influence of an intoxicant. Accordingly, the situation demanded the officer‘s prompt attempt to locate the defendant. An arrest would prevent the driver from returning to his, or another automobile, where he could have continued to drive in his current state, posing a danger to himself and the public. Consequently, the nature of this offense, coupled with the po-
An equally persuasive argument is the probable destruction of evidence. This is a model case demonstrating the urgency involved in arresting the suspect in order to preserve evidence of the statutory violation. “Sometimes the nature of the evidence will be such that it will soon disappear of its own accord.” 2 W. LaFave, Search and Seizure, sec. 6.5 at 448 (1978). “Blood rapidly metabolizes alcohol after a person ceases drinking; thus creating an exigent situation.” State v. Bentley, 92 Wis. 2d 860, 864, 286 N.W.2d 153 (Ct. App. 1979). Without an immediate blood alcohol test, highly reliable and persuasivе evidence facilitating the state‘s proof of the defendant‘s alleged violation of
By the Court. — The decision of the court of appeals is reversed.
CECI, J., took no part.
SHIRLEY S. ABRAHAMSON, J. (dissenting). As a result of the decision in this case, if a witness reports to the police that:
(1) a few moments ago, on this dark, rainy night he saw a car being driven erratically into a field;
(2) he observed and spoke with the driver of the car but does not know the name of the driver;
(3) the driver staggered and had slurred speech but that the witness had no opportunity to smell any alcohol on the driver‘s breath;
(4) the driver was either very inebriated or very sick; and
(5) there was no damage to any person or any property;
then the police officers, relying on a statute allowing an officer to arrest a person without a warrant for violating a civil traffic regulation (a civil, not a criminal offense) ongoing conduct which is the basis for the arrest, there should be a far greater reluctance to fault the police for not having an arrest warrant. Here, the presumption should be in favor of a warrantless arrest rather than against it, as the probabilities are high that it is not feasible for the police to delay the arrest while one of their number leaves the area, finds a magistrate and obtains a warrant, and then returns with it.” Id. at 392 (emphasis added) (footnote omitted).
(1) go to your home at night;
(2) enter your home;
(3) climb the stairs to your second-floor bedroom;
(4) look around your bedroom to see if the clothes you took off match the description of the clothes worn by the driver of the car; and
(5) ask you, as you lie naked in your bed, to get out of bed so that the officers can determine whether you are intoxicated.
I dissent because I conclude that this warrantless invasion into your privacy in your home to investigate whether you violated a civil traffic statute contravenes
The essence of the fourth amendment is that a judicial officer with the power to issue a warrant, not a policeman or government agent, decides whether the government can enter your home without your consent. As Justice Jackson so eloquently stated:
“Any assumption that evidence sufficient to support a magistrate‘s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people‘s homes secure only in the discretion of police officers. . . . 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.” Johnson v. United States, 333 U.S. 10, 14 (1948).
In our country a warrantless entry into a home by a police officer is presumed unreasonable, because our society recognizes the special sanctity of the home. In Payton v. New York, 445 U.S. 573, 585-86 (1980), the United States Supreme Court clearly proclaimed that the “‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,‘” and that “it is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” It is only when “exigencies of the situation . . . make warrantless entry imperative” that warrantless entry into a person‘s home may be condoned. Laasch v. State, 84 Wis. 2d 587, 594, 267 N.W.2d 278 (1978). (Emphasis added.)
I dissent because I conclude that the warrantless intrusion into the defendant‘s home in the instant case is unconstitutional. First, I have grave doubts as to the constitutionality of
Arrest for a Civil Offense. In contrast to the cases cited and relied upon by the majority to justify a warrantless entry into the defendant‘s home, this case does not involve a warrantless arrest for a felony. This case does not involve a warrantless arrest for a misdemeanor. This case does not even involve a warrantless arrest for the violation of a civil traffic statute committed in the presence of an officer. This case involves a warrantless arrest for the violation of a civil traffic statute committed outside the presence of an officer.
The majority concludes that the officer‘s power to arrest is predicated on
“345.22 Authority to arrest without a warrant. 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.”1
The validity of
I have found no cases, and the majority cites none, upholding a warrantless arrеst, either in a public place or in a home, for a civil traffic offense committed outside the presence of the officer. All the cases and commentary cited by the majority address the question of the validity of an arrest for a violation of a criminal statute. In Camara v. Municipal Court, 387 U.S. 523, 540 (1967), the Court concluded that in the absence of compelling urgency a warrantless administrative public health search of a home violates the fourteenth amendment. Neither the defendant nor the state discusses the question of the validity of
At this stage, however, I wish to express my doubts about the constitutionality of
Assuming arguendo that the law applicable to warrantless felony arrests can be applied without change to warrantless arrests for civil traffic offenses committed outside the presence of a police officer, I conclude there was no probable cause or exigent circumstances.
Probable Cause. In reviewing the decision of the circuit court as to probable cause, this court will not overturn findings of faсt unless against the great weight and clear preponderance of the evidence, but this court will independently examine the record to make its own determination of the legal question, namely, whether the constitutional requirement of probable cause is satisfied.
The circuit court in this case stated its decision from the bench. The circuit court merely concluded that “the police did have probable cause to believe that the defendant had committed the offense of operating while under the influence.” The circuit court did not make any findings of fact, did not make any analysis or summary of the evidence, and did not analyze the legal principles it used to reach its legal conclusion.
There are disputed facts in this case and the credibility of witnesses is at issue. Generally where the circuit court does not expressly make a finding necessary to support its legal conclusion, this court can assume that the circuit court made the finding in the way that supports its decision. Sohns v. Jensen, 11 Wis. 2d 449, 453, 105 N.W.2d 818 (1960). See also State v. Fillyaw, 104 Wis. 2d 700, 727-28, 312 N.W.2d 795 (1981) (Abrahamson, J., concurring). The majority‘s de novo review of the record must therefore be to determine the legal signifi
When an arrest is made without a warrant the state bears the burden of proving the existence of probable cause. Leroux v. State, 58 Wis. 2d 671, 682, 207 N.W.2d 589 (1973). In the case at bar a determination by this court of the legal question of probable cause to believe that the defendant was driving while under the influence of an intoxicant turns on three pieces of information known to the officer making the arrest.
The first piece of information is the ownership of the car. This information is relied upon to establish that it is probable that the defendant was the driver of the car. Jablonic did not describe the driver sufficiently for the officer to be able to identify the defendant as the driver. The officer had to reason that because the defendant was the owner of the car, he was probably the driver.
The second piece of information on which the determination of probable cause turns is that the defendant had been arrested previously in an alcohol-related disturbance. This information is relied upon to establish that the defendant was probably intoxicated. There is no indication in the record as to the nature of the alcohol-related disturbance; as to whom, if anyone, was intoxicated during this alcohol-related disturbance; as to the nature of the offense for which the defendant was previously arrested; whether there was any finding of probable cause for the arrest; or whether any further civil or criminal proceedings against the defendant resulted from the arrest. The majority opinion says that the officer “did correctly recall” the arrest. (Emphasis added.) Supra, p. 325. See also supra, pp. 331, 332 where the majority states that the officer‘s recollection was accurate and correct. There is nothing in the record which indicates whether the officer‘s recollec
I need not reach the question of when a defendant‘s previous arrest may be relevant and probative in determining probable cause. In the case at bar the officer‘s testimony as to the defendant‘s prior arrest is so sketchy and subject to so many interpretations that neither the circuit court nor this court can use the information about the arrest to help form its independent determination whether the facts in the possession of the officer are as a matter of law sufficient to constitute probable cause.
The third, and most important, and perhaps the only piece of information on which the determination of probable cause turns, is Jablonic‘s statement to the officer. This information is relied upon to establish that the driver was probably intoxicated. The critical element in determining probable cause in the case at bar is whether the information which Jablonic, a reliable eyewitness, gave the police officer is sufficient to lead a reasonable police officer to believe that the driver was probably driving under the influence of an intoxicant.
Jablonic, the only person available with first-hand information about the driver and his driving, testified that the driver was walking and speaking with difficulty and that he was either intoxicated or sick. Even though, as he testified, he was familiar with the signs of intoxication, Jablonic had good reason to be uncertain. The weather was bad, and visibility wаs poor. Further, Jablonic was not able to verify or discard his intoxication theory because he did not have the opportunity to smell any alcohol when the driver spoke to him and asked him for a ride. I acknowledge that the mere fact that an innocent explanation for the driver‘s conduct, that is, illness, may be imagined is not enough to defeat probable cause. 1 LaFave, Search and Seizure, sec. 3.2(e), pp. 483-84 (1978). But in this case the innocent explana
The officer‘s testimony of what Jablonic told him is inconsistent with Jablonic‘s testimony. The officer testified that Jablonic had a definite opinion that the driver
“Well, it was my mental intent to go in the house and determine if he was in his bedroom, and what condition he was in, and whether or not he had anything to drink prior to leaving where the accident or the incident took place, until the time he got into bed. It was my intent to investigate it up to that point and make a determination.”
It was only after making the warrantless entry into the home, observing the defendant “wringing wet,” seeing in the bedroom defendant‘s clothes which matched the clothes Jablonic described and smelling alcohol that the officer himself concluded he had sufficient information to lead him to believe that the defendant probably committed the offense of driving while under the influence of an intoxicant and decided to arrest the defendant.
Although the majority states that the circuit court reached “the conclusion that Jablonic conveyed the definite impression that the driver was intoxicated” (supra,
The majority seeks to bolster its conclusion that the officer had probable cause by relying on the officer‘s testimony as to what the daughter and the wife said when the officer entered the house. The daughter was not present to testify. The wife, without objection, related the daughter‘s version of what had happened, and the wife‘s testimony contradicts the officer‘s. The circuit court expressly avoided having to determine whose testimony it believed, the wife‘s or the officer‘s, and therefore the majority cannot use the officer‘s disputed testimony to bolster its conclusion.
Although the subjective conclusions of the police officer concerning the existence of or lack of existence of probable cause do not bind a court, the officer‘s apparent decision in the case at bar that the eyewitness furnished information sufficient to warrant further investigation but did not furnish information sufficient to lead him to believe that the defendant probably committed the offense of driving while under the influence of an intoxicant has some weight in this court‘s independent determination
On the basis of the record in this case, I conclude that the state did not present sufficient facts to prove that information in the officer‘s possession was sufficient to satisfy the constitutional standard of probable cause. I conclude that when the officers entered the residence, they could only suspect that the defendant may have been the driver and that the driver may have been under the influence of an intoxicant. Reasonable suspicion (that is, ample factual justification falling short of what is required to support arrest or search) may be sufficient to justify further investigation, and in some situations, to justify a stop but it is not sufficient to justify a warrantless arrest. Brown v. Texas, 443 U.S. 47, 51 (1979); Terry v. Ohio, 392 U.S. 1, 22 (1968); Wong Sun v. United States, 371 U.S. 471, 479 (1963); State v. Cheers, 102 Wis. 2d 367, 386-87, 306 N.W.2d 676 (1981); Bies v. State, 76 Wis. 2d 457, 465-66, 251 N.W.2d 461 (1977).
The majority opinion, in the section entitled probable cause, discusses the government‘s interest in eradicating drunk driving. Supra, pp. 333-335. The relevance of this discussion is not readily apparent. First, granting the police the power that the majority does in this case “does not appear sufficiently productive to qualify as a reasonable law enforcement practice under the Fourth Amendment.” Delaware v. Prouse, 440 U.S. 648, 660 (1979). The contribution to highway safety of allowing warrantless arrests in the home of persons who are repоrted to have driven erratically and who are described as drunk
Second, if the police officer had probable cause to make the arrest, the government‘s interest and the seriousness of the offense are irrelevant. If the police officer did not have probable cause to arrest, the arrest is unconstitutional and the government‘s interest and the relative seriousness of the offense are irrelevant. If the majority‘s discussion of the government‘s interest is the majority‘s way of saying that the seriousness of the offense is a factor for the police and the courts to consider in determining probable cause, the majority is making a dramatic change in the law of probable cause and is establishing a balancing, sliding scale test that would be difficult for both police and courts to comprehend and apply. 1 LaFave, Search and Seizure, sec. 3.2(a), pp. 450-58 (1978).4
Even if I were to assume that the Payton-Laasch rule is automatically applicable to this civil forfeiture case, I conclude the record is not adequate to find exigent circumstances.
The exigent circumstances doctrine, like all exceptions to the warrant requirement, must be viewed as a narrow exception to the protections of the fourth amendment. In McDonald v. United States, 335 U.S. 451, 456 (1948), the Court said: “We cannot . . . excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that cause imperative.” (Emphasis added.) See also Laasch v. State, quoted supra at page 341 of this dissent.
Although the United States Supreme Court has on several occasions spoken of exigent circumstances, the Court has not clearly defined what are exigent circumstances or established standards to measure the existence of such exigent circumstances. In this case, the circuit court appeared to conclude that the exigency arose out of hot pursuit and the need to preserve evidence of intoxication. The majority, on the other hand, identifies three exigent circumstances, that is, three urgent circumstances that make resort to the warrant process impracticable: (1) the need to prevent the offender‘s escape (hot pursuit); (2) the need to prevent physical harm to the offender and the public; and (3) the need to prevent the destruction of evidence.
The majority opinion does not establish standards by which the existence of the exigent circumstances are to be tested. For example, the majority does not explain whether the test for a valid warrantless entry under the exigent circumstances doctrine is a subjective one, an objective one, or both. In State v. Prober, 98 Wis. 2d 345, 365, 297 N.W.2d 1 (1980), the court adopted a two-step analysis (subjective and objective) for application of the emergency doctrine, an exception to the warrant requirement which is similar to the exigent circumstances doctrine. Under Prober, the warrantless search is invalid unless the officer is actually motivated by the perceived emergency, that is, to render aid or assistance (subjective test). Second, “even though the requisite motivation is found to exist,” the warrantless search is invalid unless a “reasonable person under the circumstances would have thought an emergency existed” (objective test).
If the Prober two-step analysis for the emergency doctrine is not applicable to the exigent circumstаnces doctrine the majority ought to tell us why.
This case cannot meet the Prober subjective test. The officer did not testify that he believed he had to arrest the defendant immediately in order to prevent the defendant from escaping or in order to protect the defendant or the public from the danger of the defendant driving another automobile that night. The officer does refer to the fact that alcohol dissipates with the passage of time. But the officer said that his subjective motivation was to investigate immediately, to determine if the defendant was drunk. The officer did not testify that he believed he had to arrest the defendant immediately to preserve the evidence. He said he went into the house to determine whether the defendant was drunk and if so he would then attempt to preserve the evidence.
This case also cannot meet the Prober objective test of exigent circumstances.5 The essence of the exigent cir
The warrantless entry in this case cannot be justified as necessary to prevent the defendant from escaping arrest or to prevent physical harm to the driver or to the public. The police had the defendant‘s name and address. There is nothing in the record to indicate that the police thought he would leave the jurisdiction or would not be available for arrest unless he was pursued and arrested immediately. The majority speculates, without anything in the record supporting this speculation, that the defendant (whose cаr was in the field and who, as the police officers found out when they knocked on the door, was in
The threatened destruction or removal of evidence presents a more difficult issue of exigent circumstances. It is beyond question that alcohol “disappears” over a period of time and that the evidence of intoxication will be destroyed by the passage of time. But neither the record nor the majority opinion describes the degree of urgency to make the arrest, that is, how long a time period may elapse before the alcohol has disappeared, and the amount of time it would take to obtain a warrant in the city of Madison at 9:30 at night.
Drugs can be flushed down a toilet in seconds. Money or bloody clothes can be burned within minutes. When we talk about “destruction” of the evidence of intoxication we are talking about hours.
In this case the police zeroed in on the identity of the defendant in about one half hour after the event to be proved. It is up to the state to introduce evidence that resort to the warrant process was impracticable because the warrant and any test for intoxication would come too late. Yet the state introduced no such evidence. Nor are there scientific facts or facts relating to the practice in Dane County as to the issuance of warrants of which this court might take judicial notice to justify the conclusion that a reasonable officer might reasonably have believed that he had to preserve the evidence from destruction and had no time to get a warrant. Because the state has not met its burden of showing that its warrantless entry was “imperative,” I would hold that the circumstances were not exigent.
Accordingly, I would affirm the decision of the court of appeals and remand this case to the circuit court to determine the issue of consent.
To preserve the federal and state constitutional guarantees of the sanctity of the home against the knock on the door in the middle of the night by government officers who do not have a warrant issued by a judicial officer, I dissent.
I am authorized to state that Justice NATHAN S. HEFFERNAN joins this dissent.
Notes
When the defendant made the point that the offense here is civil, the state agreed that there is no indication that the offense is criminal. The state in its final brief argues that because the defendant did not raise the question of whether the offense here indeed was a crime, that issue has been waived. I conclude that, regardless of the issue of waiver, the validity of
“Q. What did you tell the officer? Did you give the officer a description of the individual you had been talking to?
“A. I don‘t recall that I did at the time. I told him that I felt the man was very inebriated or very sick or not very much in possession of his faculties or ability to perform. And it was my feeling that he had taken off across the field.
“Q. What did you base your opinion on that he was inebriated?
“A. Well, first of all the erratic motion of the car, and then the staggering and slurred speech that he exhibited when he was trying to talk to me.
“Q. You have seen people or persons under the influence of an intoxicant before?
“A. Working at the University, it‘s a common—very common to see many inebriated people, unfortunately.”
Jablonic described the driver as follows:“Q. Did you notice anything about this person?
“A. They had a kind of a wet leather jacket on or something that looked like a reddish-brown jacket, as what I can recall. It was evening. It was raining and wet. It might have been even a sportcoat that was just wet. And they stood by the window of the car, which I rolled down.
“Q. All right, did you have an opportunity to observe the way this person walked?
“A. It was very unsteady and unsure. And the person that just wasn‘t very well would walk like that.
“Q. And did you—did this person get close enough to you that you could observe his breath?
“A. No. They remained outside the vehicle. I did roll down the window. I conversed with the person. But there was no opportunity to smell his breath.”
“Q. Do you recall whether or not he [Jablonic] said anything about this individual being under the influence?
“A. Yes, he had a definite opinion about that.
“Q. What did he tell you?
“A. He said the man was very obviously intoxicated.”
The majority at one and the same time appears to negate and to inject a balancing test in determining probable cause. The majority says at supra, p. 329 that “although the State must prove the existence of both probable cause and exigent circumstances, negating any implication of adherence to a mere balancing test, the progeny of Fourth Amendment case law demonstrates that reasonableness occupies a prominent position in search and seizure analysis.” (Emphasis supplied.) The progeny to which the majority refers are Brown v. Texas, 443 U.S. 47, 50-51 (1979), and Bies v. State, 76 Wis. 2d 457, 466, 251 N.W.2d 461 (1976) (quoting Browne v. State, 24 Wis. 2d 491, 507, 129 N.W.2d 175 [1964] cert. denied. 379 U.S. 1004). These cases involve an investigation or a stop which requires something less than probable cause. An investigation and a stop may be justified even if there
Judge Gartzke, writing for the court of appeals, used a balancing test to determine whether the exigency justified the intrusion. He assumed that this case involved a misdemeanor and concluded that although there was urgency to avoid destruction of evidence, the urgency in this case was not sufficiently great to justify a warrantless arrest in the home. He noted that the “misdemeanor” in this case was not a grave offense. The defendant had not injured any person or property. The defendant‘s wife and daughter were in no danger. The defendant was in no danger; he was upstairs in bed. An intrusion by the police into a bedroom at night is a serious intrusion on privacy. Entry into the home is ordinarily afforded the most stringent fourth amendment protection. Judge Gartzke‘s approach of looking at the entire case and balancing the government‘s need for immediate police action and the defendant‘s interest in privacy in the home is interesting and worthy of discussion and consideration. It also seems to satisfy the majority‘s keen interest in balancing and reasonableness. Unfortunately the majority ignores the approach of the court of appeals.