Officers followed defendant to her home suspecting her of DUI. When she answered the door and admitted driving the car, they had probable cause to arrest her, and, because DUI is a jailable offense, hot pursuit applied and they could go after her. The court surveys the cases and distinguishes Welsh. State v. Robinson, 144 Idaho 496, 163 P.3d 1208 (2007):
Accordingly, the misdemeanor driving under the influence (DUI) offense of which Robinson was suspected, which carries a penalty of up to six months jail time, I.C. § 18-8005, falls under the category of a jailable offense within the exigent circumstances doctrine. The distinction between felony and misdemeanor for purposes of the exigent circumstances doctrine no longer has a valid basis in state or federal law.
Justification for a warrantless entry hinges upon whether the intrusion was objectively reasonable under the circumstances. Brigham City, 126 S. Ct. at 1947. The magistrate found Robinson’s person contained evidence that was evanescent in nature and would quickly dissipate if time were taken to seek a warrant. See Welsh, 466 U.S. at 753; Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (warrantless blood alcohol test reasonable where delay would cause loss of evidence); State v. Woolery, 116 Idaho 368, 370, 775 P.2d 1210, 1212 (1989) (“destruction of the evidence by metabolism of alcohol in the blood provides an inherent exigency ….”). The magistrate further concluded, however, that the officers’ actions exceeded the scope of the evidence preservation exigency.
We apply an objective standard to determine whether the action taken was appropriate for a person of reasonable caution given the facts known to the official at the time of entry, along with reasonable inferences drawn therefrom. State v. Barrett, 138 Idaho 290, 293, 62 P.3d 214, 217 (Ct. App. 2003). The exigent circumstances exception does not apply where there is time to secure a warrant. See Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978); State v. Worthington, 138 Idaho 470, 472, 65 P.3d 211, 213 (Ct. App. 2002). In Welsh, the police arrested the defendant for DUI within a half-hour from his reported drunken driving incident. This made it unlikely that Welsh “could cast substantial doubt on the validity of a blood or breath test by consuming additional alcohol upon arriving at his home.” Welsh, 466 U.S. at 763 (White, J., dissenting). In the case at hand, the officers arrived promptly at Robinson’s home. Officer Moore arrived minutes later, and entered the home to arrest Robinson only after she refused either to come outside or to allow the officers to perform field sobriety tests inside the home. The officers further testified regarding the impracticability of obtaining a warrant at such a late night hour, saying it ordinarily took several hours. Compare Vale v. Louisiana, 399 U.S. 30, 35, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970) (finding warrantless home entry unreasonable where practical to obtain warrant).
Officers came in with permission to look for a lead on a missing person (not likely dead, just missing). They had reason to believe defendant had marijuana, too. They looked under defendant’s recliner with a flashlight while in his house looking for papers from the missing person, and found rolling papers and marijuana. They asked for consent which was refused. They got a search warrant based on the observation, and it was upheld. The minimal ruse was not constitutionally unacceptable. United States v. Trower, 2007 U.S. Dist. LEXIS 30890 (W.D. Mo. March 28, 2007):
Inasmuch as the incriminating nature of the marijuana plate was readily apparent, the critical issue is whether Officer Rorebeck was “‘in a place where the officer ha[d] a right to be.'” United States v. Criswell, 696 F.2d 636, 640 (8th Cir.1983) (quoting Washington v. Chrisman, 455 U.S. 1, 5, 102 S.Ct. 812, 816 (1982)). Under the facts presented, the Court finds that Officer Rorebeck (and the other two law enforcement officers were voluntarily) invited by Trower into his house, in part, for the purpose of locating the letter left by Ms. Aguilar. At no time prior to the plain view discovery of the marijuana did Trower make any effort to limit the scope of his consent. As such, Officer Rorebeck had a right to be in the Trower living room and to look under the chair (where the letter could have been lying). Compare United States v. Johnson, 707 F.2d 317, 322 (8th Cir. 1983) (“[The defendant] seems to be arguing that the firearms were not in ‘plain view’ because they were hidden in and under the bed, and were not openly visible when the officers entered the room. However, the firearms can still fall within the plain view doctrine because they were discovered in a place where the officer ha[d] a right to be.”).
The Court further concludes that the application of the plain view doctrine is permissible even though the law enforcement officers sought Trower’s permission to enter his residence with some belief that they would find marijuana under the recliner in the living room. In United States v Wright, 641 F.2d 602 (8th Cir. 1981), the Eighth Circuit found that some “minimal deception” by law enforcement officers is acceptable. In Wright, undercover agents, during the course of their drug investigation, knocked on the defendant’s motel door, pretending to have car trouble, asking to borrow some tools, and saw a white powdery substance and drug paraphernalia in plain view within the motel room. After employing the ruse, the agents obtained a search warrant, which was executed that night, and which yielded a shotgun, quantities of powdery substances, some pills, a cutting mirror and other drug paraphernalia, and a small notebook listing various drugs, their quantities, and prices. The court found that the undercover officers, by standing in the open door of the motel unit, like any member of the public, could see inside and observe various items in plain view. Although the undercover officers did not reveal their true identity or true purpose, and to that extent did lie, the Wright court said that it recognized the necessity for some kinds of undercover police activity; the officers did not engage in any conduct inconsistent with that expected or contemplated by the defendant when he opened the door. The fact that the officers approached the defendant with a lawful purpose, namely “fixing” their car, rather than an unlawful one, such as buying drugs, did not make their ruse unacceptable. Similarly, in this case, the officers’ legitimate efforts in investigating the disappearance of Ms. Aguilar does not invalidate the plain view doctrine.
Officers responded to a noise complaint of teenagers running through back yards. At the defendant juvenile’s house, they saw suspicious behavior which caused them to believe that perhaps a burglary was in progress and they came into the back yard, where defendant became belligerent and refused to cooperate and committed battery on a law enforcement officer. His motion to dismiss for the entry into the yard was dismissed and affirmed on appeal. P.B.P. v. State, 955 So. 2d 618 (Fla. 2d Dist. 2007):
The circumstances here compel a similar conclusion and support the trial court’s denial of P.B.P.’s motion to dismiss. At 3:00 a.m., the police officers responded to a disturbance call involving juveniles running through backyards. As the officers tried to determine whether juveniles were in the open backyard area, they saw suspicious circumstances at P.B.P.’s house, including an open window with the screen to the side, someone “peeping through” a window then trying to hide, and someone trying to hide under a counter. At this point, the officers were standing between two homes, and it is unclear whether they had actually entered P.B.P.’s yard.
Officer Perrone went to the front door while Officer Bruce remained in the rear area between P.B.P.’s house and a neighbor’s house. Although P.B.P. responded to the front door after a few minutes delay, he then went back into the house and to the rear door, where he called out to Officer Bruce using “colorful language.” The officers still did not know P.B.P.’s identity, whether he had been involved in the earlier disturbance, or whether he was trespassing in or burglarizing the house. Officer Bruce approached P.B.P. at the rear only after P.B.P. called out. Neither Officer Bruce nor any of the officers tried to enter the house. Instead, when they tried to ascertain P.B.P.’s identity to determine whether he actually lived in the house, P.B.P. struck Officer Bruce. Under the totality of these circumstances, we conclude that the trial court did not err in determining that the officers were engaged in the lawful performance of their duties and in denying P.B.P.’s motion for judgment of dismissal.
