Telephonic warrant statute increases burden on police to get a warrant; mere dissipation of alcohol in the blood does not justify entry into home defendant was followed to without hot pursuit

The officer in this case followed the defendant to his home suspecting that the defendant was DUI. The defendant pulled into his garage and went into his home as the officer pulled up behind him. The officer entered without seeking a telephone or radio warrant, which was possible under state law. The officer was not in hot pursuit, and the mere dissipation of alcohol is not exigent circumstances without hot pursuit. Sapen v. State, 869 N.E.2d 1273 (Ind. App. 2007):

In this case, Sapen walked into his home with permission. Captain Holmes did not order him to stop. Thus, Captain Holmes was not in “hot pursuit” that might have justified his warrantless entry to Sapen’s home. It is also clear that Captain Holmes could have obtained a telephonic warrant prior to entering Sapen’s home, but he did not. Indiana Code Section 35-33-5-8(a)(2) allows for the issuance of a search warrant “orally by telephone or radio.” In Timmons, we observed that the “telephonic warrant statute was intended to encourage the procurement of warrants in situations involving exigent circumstances, when a warrant might not otherwise be sought.” 723 N.E.2d at 920. And, although dissipation of alcohol without more does not constitute exigent circumstances to support a warrantless home entry, see Straub, 749 N.E.2d at 593 (involving alcohol dissipation plus flight), we think the provisions of our telephonic warrant statute might nevertheless be useful and lessen the need for warrantless searches in some instances when the metabolic destruction of evidence is at issue.

Comment: The most and highly significant part of this case is the last quoted sentence: The availability of a telephonic or radio warrant for entry into the home apparently increases the burden on the police to avail themselves of that procedure. Defense counsel have yet another case to support the proposition that a telephonic warrants statute puts the burden on the police to get a warrant, particularly since the Fourth Amendment has a clear preference for searches with a warrant. See United States v. Ventresca, 380 U.S. 102, 106 (1965):

In Jones v. United States, 362 U.S. 257, 270, this Court, strongly supporting the preference to be accorded searches under a warrant, indicated that in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall. In Johnson v. United States, 333 U.S. 10, and Chapman v. United States, 365 U.S. 610, the Court, in condemning searches by officers who invaded premises without a warrant, plainly intimated that had the proper course of obtaining a warrant from a magistrate been followed and had the magistrate on the same evidence available to the police made a finding of probable cause, the search under the warrant would have been sustained. Mr. Justice Jackson stated for the Court in Johnson:

“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. 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.” Johnson v. United States, supra, at 13-14.