{"id":6236,"date":"2012-05-01T09:31:25","date_gmt":"2011-11-07T07:44:24","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-11-07T07:44:24","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6236","title":{"rendered":"CA4: Welsh<\/em> does not prohibit warrantless entries to arrest for DUI; it is based on penalty for offense"},"content":{"rendered":"

Welsh<\/a> did not categorically hold that a warrantless entry for DUI was unreasonable, and the circuits have split on the issue, so the officer gets qualified immunity. Cilman v. Reeves<\/a>, 452 Fed. Appx. 263 (4th Cir. 2011) (unpublished):<\/p>\n

Contrary to the district court\u2019s contention, Welsh<\/a> does not establish a categorical rule that police may never make a warrantless entry into a home to effect an arrest for driving under the influence. The Welsh Court held only that, because Wisconsin treated a DUI as a civil non-jailable offense for which the maximum penalty was a fine of $200, no exigent circumstances justified the warrantless entry at issue there. Welsh<\/a>, 466 U.S. at 753-54. The Court emphasized that \u201cthe penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State\u2019s interest in arresting individuals suspected of committing that offense.\u201d Welsh<\/a>, 466 U.S. at 754 n.14; see also id. at 754 (\u201c[The penalty] is the best indication of the State\u2019s interest in precipitating an arrest.\u201d).<\/p>\n

Although the Supreme Court later observed that \u201cWelsh drew a distinction between jailable and nonjailable offenses, not between felony and misdemeanor offenses,\u201d Illinois v. McArthur<\/a>, 531 U.S. 326, 335-36 (2001), in Welsh itself, the Court left open the possibility that the Fourth Amendment could impose a wholesale ban on warrantless home arrests for minor offenses. Welsh, 466 U.S. at 749 n.11 (\u201cBecause 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.\u201d). We need not here determine the exact parameters of the rule set forth in Welsh because even if Officer Reeves did violate Cilman\u2019s Fourth Amendment rights, those rights were not \u201cclearly established.\u201d<\/p>\n

No controlling Supreme Court or Fourth Circuit precedent speaks to a person\u2019s right to be free from a warrantless entry into his home in circumstances like those in the case at hand. Numerous out-of-circuit cases do address this issue, but courts have divided on this question. … <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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