IL: DUI qualifies for hot pursuit under Santana and not Welsh because DUI was jailable

Hot pursuit of a DUI suspect (a class A misdemeanor) justified entry into the defendant’s home. This situation is like Santana, and Welsh is distinguished because it involved a fine-only offense, not a jailable offense. People v. Wear, 229 Ill. 2d 545, 893 N.E.2d 631, 323 Ill. Dec. 359 (2008):

Here, we see little relevant difference between this case and Santana. In both cases, the officers had probable cause to arrest when they were standing in the doorway, which is considered a public place. The Santana Court held that police were not required to refrain from entering the home and arresting her without a warrant. Similarly, Officer Dawdy was not required to refrain from entering Foiles’ home and arresting Wear without a warrant because he had probable cause to arrest the Wear at the threshold and Wear continued inside.

Moreover, additional facts are present in this case that are not present in Santana. Unlike Santana, Dawdy was already in pursuit of defendant after he turned around at Bruce Street. As Wear continued toward Foiles’ house, there were more and more indications that Wear had committed a DUI. Officer Dawdy observed a swerve and a traffic violation, then turned on his rotator and takedown lights. These were apparently ignored or unobserved by Wear as he then rolled through a stop sign, and staggered to a door opened by Foiles. He stated, repeatedly, “I made it home” while the door was open and Dawdy stood less than a foot away. At this point, Dawdy testified, he smelled the odor of alcohol emanating from his breath. Although this was not a high-speed chase, under Dawdy’s testimony, he told Wear to stop and return to his vehicle five or six times even after he had been following Wear with his lights illuminated for five or six blocks.

We next reject Wear’s contention that our decision is controlled by the United States Supreme Court’s decision in Welsh v. Wisconsin, 466 U.S. 740, 80 L. Ed. 2d 732, 104 S. Ct. 2091 (1984). In Welsh, a driver lost control of his car and came to a stop in a field. A witness saw the driver walk away and told the police that the driver was either very inebriated or very sick. The police went to the driver’s house, which was a short distance away. The police entered the home without a warrant and arrested the driver who was in his bed naked by that time. Welsh, 466 U.S. at 742-44, 80 L. Ed. 2d at 738-39, 104 S. Ct. at 2093-94. In Welsh, the Supreme Court first reasoned that the warrantless arrest violated the fourth amendment because there was no immediate or continuous pursuit from the scene of the crime. Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099. In contrast, in the instant matter there was an immediate and continuous pursuit at some point after Dawdy illuminated his police vehicle’s lights on Bates and Lincoln, and one that continued up to and through the threshold of Foiles’ house.

The Welsh court also found the warrantless arrest violated the fourth amendment because, in Wisconsin, driving while intoxicated was a nonjailable civil offense. Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 745-46, 104 S. Ct. at 2100. As the Welsh Court noted, “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.” Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099. The Welsh Court’s opinion was premised on the gravity a state assigns to the offense as the “the best indication of the State’s interest in precipitating an arrest.” Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104 S. Ct. at 2100, see also Welsh, 466 U.S. at 755, 80 L. Ed. 2d at 747, 104 S. Ct. at 2100 (Blackmun, J., concurring) (noting that the outcome of the case depended in large part on Wisconsin’s fine-only penalty). Moreover, the Welsh Court explicitly stated that “[b]ecause 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.” Welsh, 466 U.S. at 749 n.11, 80 L. Ed. 2d at 743 n.11, 104 S. Ct. at 2097 n.11.