Defendant was driving under the influence, having run into a building, and the police were called. When officers got to defendant’s home, he was somewhat belligerent, and the police ultimately entered the house. Distinguishing Welsh v. Wisconsin and admitting there was no true “hot pursuit,” the court still finds exigent circumstances for a warrantless entry into defendant’s house to arrest him because his actions demonstrated a propensity to violence. State v. Ness, 2016 Iowa App. LEXIS 241 (March 23, 2016):
We next consider whether the danger posed by Ness to his neighbors and the officer created an exigent circumstance for the warrantless entry and arrest. In State v. Gregory, our supreme court outlined six conditions as guidelines in determining the existence of exigent circumstances:
1. A grave offense is involved;
2. The suspect is reasonably believed to be armed;
3. There is probable cause to believe the suspect committed the crime;
4. There is strong likelihood of escape if not apprehended;
5. There is strong reason to believe he is on the premises; and
6. The entry, though not consented to, is peaceable.
331 N.W.2d 140, 141 (Iowa 1983). In considering the criteria, “[n]o one of them is conclusive, and all need not be present.” Gregory, 331 N.W.2d at 141.
“Exigent circumstances usually are found to exist where there is a danger of violence and injury to the officers or others, a risk that the suspect may escape, or a probability that evidence will be concealed or destroyed if arrest was unduly delayed.” State v. Hardin, 359 N.W.2d 185, 188 (Iowa 1984).
We consider the six factors as they apply to these facts and find that an exigent circumstance existed. We acknowledge that the record does not indicate there was any reason to believe Ness would have escaped if he was not immediately apprehended. He was in his own home and his car was parked where the officer could see and monitor it. Additionally, the officer’s entry cannot be characterized as peaceable. Ness was angered by Officer Shoumaker using his body to block the door from shutting and, as a result, shut or slammed the door on the officer, causing the glass in the door to break.
However, we are more persuaded by the other factors. First, operating while intoxicated “is a relatively serious crime within the spectrum of prohibited acts in Iowa.” Lovig, 675 N.W.2d at 565. Additionally, and most importantly, Officer Shoumaker reasonably believed Ness may have been armed and that there was a danger of violence and injury to the officers. No witnesses had reported seeing Ness with a weapon, but Ness had threatened to both “blow up” and shoot his neighbors. Next, Officer Shoumaker had probable cause to believe Ness had operated his vehicle while intoxicated. Multiple witnesses called dispatch to report the erratic driving of the vehicle that ultimately parked at Ness’s home. The employee from the Tobacco Hut told dispatch they had refused to sell Ness alcohol because he had hit the building and they believed he was drunk. One of the neighbors who called stated Ness had almost hit two of the neighbors with his vehicle, and she believed he was drunk because she saw him “staggering around” after he exited the vehicle. The officer also had a strong reason to believe Ness was on the premises. One of Ness’s neighbors reported to dispatch as Ness entered his home-just a few minutes before the officer arrived. Additionally, after Officer Shoumaker knocked on Ness’s front door and it opened, he was able to see Ness within the home.
Ness urges us to find otherwise, arguing the facts here are similar to the facts in Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984), where the Supreme Court concluded that no exigent circumstance supported the warrantless entry of police and the subsequent arrest of the defendant. …
Like Welsh, there was no “hot pursuit” of Ness by the officer here, and we agree the loss of evidence is not a compelling argument. However, the present facts differ in important ways. First, in Welsh, the offense of driving while under the influence of an intoxicant was a noncriminal, traffic offense whereas in Iowa, it is a criminal offense which carries the possible penalty of one-year jail time. 466 U.S. at 753; see also Iowa Code § 321J.2(3)(a) (first offense is punishable by a period of imprisonment “not to exceed one year”). As our supreme court has stated, it is a “comparatively serious matter,” and “[i]t is the type of crime that can support a warrantless entry into a home if probable cause and exigent circumstances are present.” Lovig, 675 N.W.2d at 565. Additionally, in Welsh the court noted that the danger to the defendant and the community ended when the defendant abandoned his vehicle and entered his home. 466 U.S. at 753. Here, the officer reasonably believed Ness still posed a danger as he had made several threats of violence to his neighbors just before entering his home, and it was unclear if he planned to leave again and carry out his plans to harm other people. The officer made a minimal intrusion on Ness’s house, arresting him just inside the doorway and entering only insofar as to allow Ness, who was unsteady on his feet, to sit on a nearby couch.
To be clear, although both the State and the district court relied on Ness’s slamming or shutting the door on the officer as part of the justification for the warrantless entry, we do not consider that action as part of the exigent circumstance we find here. “The Fourth Amendment has drawn a firm line at the entrance of the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton, 445 U.S. at 590. “When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do.” Kentucky v. King, 563 U.S. 452, 469, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011).
“[W]hether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.” Id. at 469-70 (emphasis added).
“[E]ven if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.” Id. at 470. While the exigencies of the situation can make the need for law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment, a police-created exigency will negate the reasonableness of the warrantless entry. See id. at 460-61. Here, we do not consider Ness’s action of shutting or slamming his front door on the officer’s foot as part of the exigent circumstance that justified the officer’s entry. It does demonstrate, however, Ness’s belligerence and his combative attitude, which corroborated the officer’s concern about violent behavior.
In considering the factors listed above, the threat of harm or violence to the neighbors created an exigent circumstance which, in addition to the probable cause to believe Ness had operated his vehicle while intoxicated, provided a valid reason for the warrantless entry and arrest of Ness. As such, the district court properly denied Ness’s motion to suppress.
