{"id":745,"date":"2007-07-18T14:55:24","date_gmt":"2007-01-27T16:23:02","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-01-27T16:23:02","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=745","title":{"rendered":"IL: Hot pursuit in a DUI case into a house was lawful"},"content":{"rendered":"

Hot pursuit of a DUI suspect in Illinois is different than in Welsh<\/em> which was really a hot pursuit case. An officer could enter a house in hot pursuit of a suspect. This case has a great discussion of hot pursuit into a dwelling and as an exigency in itself. People v. Wear<\/a>, 371 Ill. App. 3d 517, 867 N.E.2d 1027 (4th Dist. 2007):<\/p>\n

6. “Hot Pursuit” as an Exigent Circumstance Unto Itself<\/em><\/p>\n

Defendant argues that Dawdy violated the fourth amendment by arresting him inside Foiles’s home because Dawdy was aware of no “‘exigent circumstances,'” within the meaning of Payton v. New York,<\/em> 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), and Welsh v. Wisconsin,<\/em> 466 U.S. 740, 80 L. Ed. 2d 732, 104 S. Ct. 2091 (1984), to justify his warrantless, nonconsensual entry of the home.<\/p>\n

In Payton,<\/em> 445 U.S. at 588-89, 63 L. Ed. 2d at 652, 100 S. Ct. at 1381, the Supreme Court held that entering a home without a warrant or consent and arresting someone therein–even for a felony that the police had probable cause to believe the arrestee committed–was presumptively unreasonable under the fourth amendment, applicable to the states via the fourteenth amendment (U.S. Const., amend. XIV) (Payton,<\/em> 445 U.S. at 576, 63 L. Ed. 2d at 644-45, 100 S. Ct. at 1374-75), and that the state could rebut this presumption of unreasonableness only by showing “‘exigent circumstances'” (Payton,<\/em> 445 U.S. at 589, 63 L. Ed. 2d at 652, 100 S. Ct. at 1381, quoting United States v. Reed,<\/em> 572 F.2d 412, 423 (2d Cir. 1978)). The Supreme Court declined to “consider the sort of emergency or dangerous situation, described in [its] cases as ‘exigent circumstances,’ that would justify a warrantless entry into a home for the purpose of either arrest or search” (Payton,<\/em> 445 U.S. at 583, 63 L. Ed. 2d at 649, 100 S. Ct. at 1378), “thereby leaving to the lower courts the initial application of the exigent-circumstances exception” (Welsh,<\/em> 466 U.S. at 749, 80 L. Ed. 2d at 743, 104 S. Ct. at 2097). <\/p>\n

While no list of factors is exhaustive, our own supreme court has set out some factors that a court may take into account when assessing exigency in a particular situation. Those factors are as follows:<\/p>\n

“(1) whether the offense under investigation was recently committed; (2) whether there was any deliberate or unjustifiable delay by the officers during which time a warrant could have been obtained; (3) whether a grave offense is involved, particularly one of violence; (4) whether the suspect was reasonably believed to be armed; (5) whether the police officers were acting upon a clear showing of probable cause; (6) whether there was a likelihood that the suspect would have escaped if not swiftly apprehended; (7) whether there was strong reason to believe that the suspect was on the premises; and (8) whether the police entry, though nonconsensual, was made peaceably.” People v. Foskey,<\/em> 136 Ill. 2d 66, 75, 554 N.E.2d 192, 197, 143 Ill. Dec. 257 (1990).<\/p>\n

In Welsh,<\/em> 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2093, the Supreme Court considered whether “‘exigent circumstances'” allowed the police to make “a warrantless night entry of a person’s home in order to arrest him for a nonjailable traffic offense” of DUI. In that case, a motorist, Randy Jablonic, saw a car changing speeds and veering side to side until it swerved off the road and came to rest in an open field. Welsh,<\/em> 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2093. Another passerby stopped at the scene, and Jablonic asked her to call the police. Welsh,<\/em> 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2093-94. Before the police arrived, the driver of the car got out and walked home, leaving the car in the field. Welsh,<\/em> 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2094. Without obtaining a warrant, the police entered the driver’s home, found him lying naked in bed, and arrested him for DUI. Welsh,<\/em> 466 U.S. at 743, 80 L. Ed. 2d at 738-39, 104 S. Ct. at 2094. The Supreme Court held that the “warrantless, nighttime entry into the petitioner’s home to arrest him for a civil traffic offense” was “clearly prohibited by the special protection afforded the individual in his home by the [f]ourth [a]mendment.” Welsh,<\/em> 466 U.S. at 754, 80 L. Ed. 2d at 746, 104 S. Ct. at 2100.<\/p>\n

“[A]n important factor to be considered when determining whether any exigency exist[ed] [was] the gravity of the underlying offense for which the arrest [was] being made.” Welsh,<\/em> 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099. Under Wisconsin law, no incarceration was possible for a first offense of DUI. Welsh,<\/em> 466 U.S. at 754, 80 L. Ed. 2d at 746, 104 S. Ct. at 2100. The State claimed a potential emergency in the need to ascertain the driver’s blood alcohol level. Welsh,<\/em> 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099. But considering that Wisconsin had “chosen to limit severely the penalties that [could] be imposed” (Welsh,<\/em> 466 U.S. at 754 n.14, 80 L. Ed. 2d at 746 n.14, 104 S. Ct. at 2100 n.14), thereby designating the offense as a minor one, “mere similarity to other cases involving the imminent destruction of evidence [was] not sufficient” (Welsh,<\/em> 466 U.S. at 754, 80 L. Ed. 2d at 746, 104 S. Ct. at 2100).<\/p>\n

Unlike the state of Wisconsin in Welsh, Illinois does not limit the penalties for a first DUI: it is a Class A misdemeanor (625 ILCS 5\/11-501(b-2) (West 2004)), punishable by imprisonment for up to 364 days (730 ILCS 5\/5-8-3 (West 2004)). Fleeing or attempting to elude a police officer also is a Class A misdemeanor. 625 ILCS 5\/11-204(a) (West 2004). Because Dawdy had probable cause to effect a seizure of the person for jailable offenses, Welsh<\/em> is distinguishable. More important, Welsh<\/em> was not a case of hot pursuit, as the Supreme Court pointed out. Welsh<\/em>, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099.<\/p>\n

We need not decide whether the factors in Foskey justify, on balance, Dawdy’s warrantless, nonconsensual entry of Foiles’s home; Dawdy was in hot pursuit of defendant and, for that reason alone, had the right to enter the house and arrest him. It appears that the majority of jurisdictions that have considered this question would so hold. D. Gilsinger, Annotation, When Is Warrantless Entry of House or Other Building Justified Under “Hot Pursuit” Doctrine,<\/em> 17 A.L.R.6th 327, \u00a7\u00a7 12, 14 (2006).<\/p>\n

According to defendant, “the law is clear that hot pursuit is not itself an exigent circumstance or exception to the warrant requirement, but merely one factor to consider.” He cites Lagle,<\/em> 200 Ill. App. 3d at 955, 558 N.E.2d at 519, in which the Fifth District disagreed with the State’s contention “that ‘hot pursuit’ [was] an exception to the warrant requirement separate and distinct from the exigent[-]circumstances exception.” The Fifth District stated:<\/p>\n

“The cases do not discuss a separate hot pursuit exception to the warrant requirement, but discuss it within the context of discussing exigent circumstances. Hot pursuit is merely one factor to be considered in determining whether exigent circumstances justified a warrantless home entry. See Dorman v. United States <\/em>(1969), 140 U.S. App. D.C. 313, 435 F.2d 385, 391 (‘Another doctrine excusing failure to obtain a warrant in case of entry for arrest has been cast in terms of “exigent circumstances,” or “necessitous circumstances.” While some decisions also refer to condition of “hot pursuit,” this term is not a limitation but rather an illustration of the kind of exigent circumstance justifying entry without a warrant to arrest a suspect’).” Lagle,<\/em> 200 Ill. App. 3d at 955, 558 N.E.2d at 519.<\/p>\n

In its holding in Santana<\/em>, the Supreme Court did not refer to hot pursuit as only one factor among others. Although the Court remarked upon the possibility of destruction of evidence, its final, unqualified holding was as follows: “[A] suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson, by the expedient of escaping to a private place.” Santana,<\/em> 427 U.S. at 43, 49 L. Ed. 2d at 305, 96 S. Ct. at 2410. The Court did not add the qualification “provided that other factors” (such as those listed in Foskey<\/em>) “are satisfied.” Most courts appear to take Santana<\/em>‘s holding at face value, treating hot pursuit as an exception unto itself rather than as just another factor. E.g., People v. Tillman,<\/em> 355 Ill. App. 3d 194, 198, 823 N.E.2d 117, 121-22, 291 Ill. Dec. 107 (2005), appeal denied,<\/em> 215 Ill. 2d 616, 833 N.E.2d 8 (2005); People v. Wimbley,<\/em> 314 Ill. App. 3d 18, 25, 731 N.E.2d 290, 295, 246 Ill. Dec. 762 (2000) (“Courts have also found exigent circumstances where police are in ‘hot pursuit’ of a suspect who flees from a public place into his residence”); State v. Blake,<\/em> 468 N.E.2d 548, 553 (Ind. App. 1984) (“immediate and continuous pursuit from the scene of the crime formed the exigent circumstance”); People v. Lloyd, <\/em>216 Cal. App. 3d 1425, 1429, 265 Cal.Rptr. 422, 425 (1989) (“the officer’s ‘hot pursuit’ into the house to prevent the suspect from frustrating the arrest which had been set in motion in a public place constitutes a proper exception to the warrant requirement”).<\/p>\n

Hot pursuit, as an exception unto itself, appears to have deep roots in 17th- and 18th-century English common law. Payton,<\/em> 445 U.S. at 598, 63 L. Ed. 2d at 658, 100 S. Ct. at 1386. Hale stated: “[I]f the supposed offender fly and take house, and the door will not be opened upon demand of the constable and notification of his business, the constable may break the door, tho[ugh] he have no warrant.” 2 M. Hale, Pleas of the Crown 92 (1736), quoted in Payton,<\/em> 445 U.S. at 595 n.41, 63 L. Ed. 2d at 656 n.41, 100 S. Ct. at 1385 n.41.<\/p>\n

One court has explained:<\/p>\n

“Hot pursuit situations have a policy basis distinct from other exigent circumstances in that they involve arrests that have already been set in motion. Logic dictates that, regardless of the gravity of [*51] the offense, an individual should not be able to avoid an otherwise lawful warrantless arrest merely by outracing the police officers into the individual’s dwelling.” Erickson v. Commissioner of Public Safety,<\/em> No. C2-92-507, slip op. at ____ (Minn. App. August 25, 1992).<\/p>\n

Under Minnesota law, this unpublished opinion is “not precedential,” but parties are permitted to cite it (Minn. Stat. \u00a7 480A.08(3) (2004)), and we find its logic to be persuasive.<\/p>\n

Thus, we respectfully disagree with the Fifth District’s discussion of the doctrine of hot pursuit in Lagle<\/em>. Moreover, we are uncertain that the language the Fifth District quotes from Dorman<\/em> actually supports the proposition that the Fifth District draws from it: just because one characterizes hot pursuit as an “exigent circumstance,” it does not necessarily follow that hot pursuit is “merely one factor” among others.<\/p>\n

When defendant repeatedly ignored Dawdy’s commands to stop and tried to elude him by going (or, rather, staggering) into Foiles’s house, reasonable suspicion ripened into probable cause, and the fourth amendment did not require Dawdy to simply shrug his shoulders and go obtain a warrant. Apparently, defendant thought the enforcement of traffic laws resembled a children’s game of tag, whereby Dawdy was “it” and defendant was “safe” if he reached “home” before Dawdy apprehended him. See United States v. Schmidt,<\/em> 403 F.3d 1009, 1014 (8th Cir. 2005). As Santana<\/em> teaches, the fourth amendment does not contemplate this game.<\/p><\/blockquote>\n

The affidavit showed a substantial basis for showing probable cause, given that warrants are entitled to substantial deference. There was a substantial basis for believing that evidence would be found at defendant’s house in a murder case based on what was presented to the magistrate. State v . Berry, 2007 Ohio 278, 2007 Ohio App. LEXIS 263 (8th Dist. January 25, 2007).* (Comment:<\/em> The defense argument was more that the probable cause had other possible innocent explanations, but that is not the question for the reviewing magistrate.)<\/p>\n

The Fourth Amendment does not provide for suppression of evidence of a crime committed against the officers during the arrest in defendant’s house. State v. Skipper, 2007 Tenn. Crim. App. LEXIS 53 (January 25, 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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