IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S130174
v.
Ct.App. 2/6 B176808
DANIEL LYON THOMPSON,
Santa
Barbara
County
Defendant and Appellant.
Super. Ct. No. 1106282
A concerned citizen followed defendant, who was driving dangerously and
under the influence of alcohol, through the streets of Santa Barbara in the early
evening of July 21, 2003. Although defendant sped away and managed to get
home, the police, with that citizen’s assistance, arrived at the house a short time
later. The officers spoke to defendant, who remained inside the house and was
visibly intoxicated. When defendant refused to come outside to have his blood
tested for the presence of alcohol, the police became anxious about the dissipation
of alcohol in his bloodstream and entered the house without a warrant to arrest him
for the criminal offense of driving under the influence (DUI).
Relying on Welsh v. Wisconsin (1984) 466 U.S. 740 (Welsh), the Court of
Appeal determined that the Fourth Amendment categorically prohibits warrantless
entries into the home to effect a DUI arrest when the asserted exigency is merely
to prevent the destruction of blood-alcohol evidence. Based on its conclusion that
1
the arrest was unlawful, the Court of Appeal suppressed all the evidence seized
during and after the warrantless entry.
Because the Court of Appeal has misread Welsh and because exigent
circumstances justified the warrantless entry to effect the DUI arrest here, we
reverse the Court of Appeal. We therefore need not consider the People’s
additional argument that even if the arrest violated the Fourth Amendment,
evidence seized outside the home subsequent to the arrest—including the results
of a blood-alcohol test—are nonetheless admissible under New York v. Harris
(1990) 495 U.S. 14.
BACKGROUND
On July 21, 2003, Madelene Orvos returned to her apartment complex in
Santa Barbara from a walk at the beach with her dogs. She found defendant
Daniel Lyon Thompson passed out in a white Ford Bronco in her assigned parking
space. A neighbor came out, woke defendant up, and asked him to leave. Before
defendant left, Orvos saw him stumble around, toss an empty vodka bottle out of
the Bronco, and pass out a second time in the vehicle. She could tell he was
intoxicated.
Having seen defendant in this condition on many prior occasions, Orvos
decided this time to follow defendant and called 911 to report the situation as she
got into her car. Defendant ran a red light and drove about 70 miles per hour when
he got onto the freeway, at one point going “way to his right . . . close to the
concrete on the side of the road.” He exited the freeway and turned right onto
State Street from the center lane. After defendant turned right onto South Ontare
Road, Orvos fell behind because he was running stop signs and driving too fast in
a neighborhood where children were present. Fortunately, Santa Barbara Police
Officer Adrian Gutierrez arrived at 7:15 p.m., just as Orvos lost track of the
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Bronco. Gutierrez instructed Orvos to wait at the parking lot of the nearby golf
course while he continued the pursuit.
Officer Gutierrez proceeded to 3610 San Jose Lane, which was the address
of the Bronco’s registered owner, and found the white Bronco parked in front.
When Officer Ryan Dejohn arrived to assist, Gutierrez went back to update Orvos
and ask her to follow him to identify the vehicle. After Orvos did so, Gutierrez
touched the hood of the vehicle and discovered the hood was warm, indicating the
Bronco had been driven very recently. He and Dejohn approached the front door,
which was wide open, and rang the doorbell.
Slavka Kovarick answered the door. Officer Dejohn asked her who had
been driving the Bronco. Kovarick said that Daniel owned the vehicle. Dejohn
asked to speak to him, but Kovarick said he was asleep. When Dejohn asked
whether she could wake Daniel up, Kovarick entered a bedroom directly to the left
of the front door. She remained there a few moments and came back to tell them
she could not wake Daniel up. She also refused to let the officers inside and
instead walked away.
Officer Dejohn heard people speaking softly down the hall and then saw a
tall shirtless White male, about 45 years old, leave the house and go into the
backyard. This man, later identified as defendant, matched the description Orvos
had provided of the driver. When defendant turned around, he made eye contact
with Dejohn, who motioned for him to come to the front door. Defendant
reentered the house and approached the officers by exiting the bedroom door near
the entryway. He was staggering or swaying slightly, slurring his speech, and
gave off a strong odor of alcohol. Dejohn, who addressed defendant as Daniel,
explained that they suspected him of driving under the influence of alcohol and
wanted to talk to him and perform some tests, but defendant refused to cooperate.
As defendant began to walk away, Dejohn entered the house. He was afraid
3
defendant might flee, so he placed his hand on defendant’s shoulder. Defendant
turned around and grabbed the doorjamb to the bedroom near the entryway.
Officer Gutierrez entered the house only to assist Dejohn in effecting the arrest.
After defendant was handcuffed, Orvos identified defendant as the driver.
His blood test revealed a blood-alcohol level of 0.21 percent. On the way to the
jail, defendant told Officer Dejohn, “I’ll kick your fucking ass.”
Following a hearing on defendant’s motion to suppress, the trial court
found there was probable cause to arrest defendant based on Orvos’s report of the
driver’s behavior, defendant’s resemblance to the description Orvos had provided
of the driver, and defendant’s visible intoxication. Under these circumstances, it
was a “reasonable implication” that defendant was the driver. Relying on People
v. Hampton (1985) 164 Cal.App.3d 27, the trial court also found that the
warrantless entry to arrest defendant was justified by exigent circumstances—i.e.,
the need to preserve the evidence of defendant’s blood-alcohol level.
Defendant then pleaded no contest to driving with a blood-alcohol level in
excess of 0.08 percent (Veh. Code, § 23152, subd. (b)) and to resisting an officer
in the performance of his duties (Pen. Code, § 148, subd. (a)(1)) and admitted two
prior convictions within the meaning of Vehicle Code section 23546. He was
sentenced to 24 months, execution of which was suspended for three years under
specified conditions.
A divided panel of the Appellate Division of the Santa Barbara County
Superior Court affirmed the denial of the suppression motion, relying on “[t]he
exigencies of preventing defendant from fleeing and possibly again driving while
intoxicated, and of preserving evidence of his blood alcohol content.” The Court
of Appeal transferred the matter under rule 62 of the California Rules of Court and
reversed in a published opinion. The court disagreed that defendant “was likely to
flee and again drive while intoxicated” and declared that the likelihood evidence
4
of driving under the influence would be concealed or destroyed by the passage of
time could not justify a warrantless entry into a residence under Welsh.
We granted the People’s petition for review.
DISCUSSION
“The Fourth Amendment protects ‘[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.’ In conformity with the rule at common law, a warrantless arrest by a
law officer is reasonable under the Fourth Amendment where there is probable
cause to believe that a criminal offense has been or is being committed.”
(Devenpeck v. Alford (2004) 543 U.S. 146, 152.) When, as here, the arrest occurs
in the home, additional principles come into play. “It is a ‘basic principle of
Fourth Amendment law’ that searches and seizures inside a home without a
warrant are presumptively unreasonable.” (Payton v. New York (1980) 445 U.S.
573, 586.) Indeed, “the ‘physical entry of the home is the chief evil against which
the wording of the Fourth Amendment is directed.’ ” (Id. at p. 585.) The
requirement of a warrant “minimizes the danger of needless intrusions of that
sort.” (Id. at p. 586.)
Yet, as with so much of its Fourth Amendment jurisprudence, the high
court has stopped short of erecting a categorical bar. The presumption of
unreasonableness that attaches to a warrantless entry into the home “can be
overcome by a showing of one of the few ‘specifically established and well-
delineated exceptions’ to the warrant requirement (Katz v. United States (1967)
389 U.S. 347, 357), such as ‘ “hot pursuit of a fleeing felon, or imminent
destruction of evidence, . . . or the need to prevent a suspect’s escape, or the risk of
danger to the police or to other persons inside or outside the dwelling” ’
(Minnesota v. Olson (1990) 495 U.S. 91, 100). The United States Supreme Court
has indicated that entry into a home based on exigent circumstances requires
5
probable cause to believe that the entry is justified by one of these factors such as
the imminent destruction of evidence or the need to prevent a suspect's escape.”
(People v. Celis (2004) 33 Cal.4th 667, 676.)
Defendant asserts that the warrantless entry here was unreasonable under
the Fourth Amendment. He argues in particular that the police lacked probable
cause to arrest him and that, even if probable cause existed, Welsh precluded a
finding of exigent circumstances for warrantless DUI arrests in the home.
The trial court found that probable cause existed to arrest defendant and
that the warrantless entry was justified by exigent circumstances. Because the
underlying facts are undisputed, we review the trial court’s rulings independently.
(People v. Williams (1988) 45 Cal.3d 1268, 1301.)
A. Did Probable Cause Exist to Justify an Arrest of Defendant for
DUI?
We first consider whether the officers had probable cause to arrest
defendant for DUI. “Probable cause exists when the facts known to the arresting
officer would persuade someone of ‘reasonable caution’ that the person to be
arrested has committed a crime. [Citation.] ‘[P]robable cause is a fluid concept—
turning on the assessment of probabilities in particular factual contexts . . . .’
(Illinois v. Gates (1983) 462 U.S. 213, 232.) It is incapable of precise definition.
(Maryland v. Pringle (2003) 540 U.S. 366, 371.) ‘ “The substance of all the
definitions of probable cause is a reasonable ground for belief of guilt,” ’ and that
belief must be ‘particularized with respect to the person to be . . . seized.’ (Ibid.)”
(People v. Celis, supra, 33 Cal.4th at p. 673.)
That standard was satisfied here. Although Madelene Orvos did not see
defendant drinking, she did see him have difficulty walking, toss an empty vodka
bottle out of the Bronco, and pass out again in the vehicle. When he woke up, he
drove erratically and too fast. He also ran red lights and stop signs. As defendant
6
concedes, the record fully supported Orvos’s belief, which she communicated to
the police, that the driver of the Bronco was intoxicated. Orvos’s report thus
established probable cause to justify a warrantless arrest of the Bronco’s driver.
(Veh. Code, § 40300.5; People v. Schofield (2001) 90 Cal.App.4th 968, 972-975;
see generally People v. Smith (1976) 17 Cal.3d 845, 852 [citizen-informant who
has personally observed the commission of a crime “is presumptively reliable”].)
The officers also had ample justification for suspecting that defendant had
been the driver of the Bronco. The registered owner of the vehicle lived at 3610
San Jose Lane. A Bronco was parked in front of that residence, and Orvos
confirmed that this was the vehicle she had just been following. Officer Gutierrez
touched the Bronco’s hood and concluded that it had been driven very recently.
The officers went to the door and inquired who had been driving the Bronco.
Slavka Kovarick said that the Bronco belonged to Daniel and that she “was going
to call Daniel out” to speak to them. Kovarick went into the bedroom immediately
to the left of the front door and came out a short time later to say she could not
wake Daniel up. Shortly thereafter, Officer Dejohn heard quiet voices coming
from down the hall and then saw defendant, a tall White male, approximately 45
years old and shirtless, walk out the back door. At Dejohn’s invitation, defendant
walked back into the house and approached the entryway by exiting through the
bedroom door immediately to the left of the front door. He was staggering and
swaying, slurring his speech, and smelled of alcohol. His appearance and
demeanor matched the description of the driver provided by Orvos. He also had
walked into and out of the bedroom that belonged to Daniel. The officers, having
reasonable grounds for believing that defendant was Daniel and that Daniel was
the driver, thus had probable cause to arrest him for DUI.
Defendant claims probable cause was nonetheless lacking because the
description Orvos had provided was too general to justify suspicion of any
7
individual person. He cites People v. Curtis (1969) 70 Cal.2d 347, in which a
“cursory description” of the suspect’s race, color of clothing, and presence in the
neighborhood where a prowler has been reported was deemed sufficient to justify
a detention but not an arrest (id. at p. 350), and on People v. Mickelson (1963) 59
Cal.2d 448, in which the suspect’s description as a fairly tall White man of large
build with dark hair and a red sweater likewise failed to justify the arrest of a man
matching that description who was merely in the “neighborhood” where a robbery
had occurred more than 20 minutes earlier and was “driving toward the scene of
the crime, not away from it.” (Id. at pp. 450, 454.) But we have in this case much
more than a vague description of a suspect that happens to be matched by someone
in the general neighborhood where a crime occurred. The Bronco was traced to a
particular residence by its registration as well as by Orvos’s visual identification
and the fact the engine was still warm. Kovarick told the officers that Daniel, the
owner of the Bronco, was indeed home and that she would tell him to come to the
door. Only then did a man matching Orvos’s description attempt to flee from the
house, although he eventually came to the door—after passing through Daniel’s
bedroom. When the man arrived at the front door, the officers immediately could
tell that he was intoxicated. These additional facts soundly distinguish Curtis and
Mickelson. (People v. Schader (1965) 62 Cal.2d 716, 724; In re Louis F. (1978)
85 Cal.App.3d 611, 616 [“Curtis and Mickelson should not be understood as
standing for the proposition identification data furnished to a police officer can
never alone be sufficient to justify a warrantless arrest unless there could not have
been anyone other than the person arrested who could have fit the description.
Rather, the question is one of degree. And when identification information of the
kind here present is buttressed by additional probative evidence of complicity, it
cannot be maintained probable cause was lacking”].)
8
Defendant also errs in supposing that the officers’ lack of certainty
defendant was the driver precludes a finding of probable cause. “ ‘[S]ufficient
probability, not certainty, is the touchstone of reasonableness under the Fourth
Amendment.’ ” (Maryland v. Garrison (1987) 480 U.S. 79, 87.)
B. Did Exigent Circumstances Justify a Warrantless Entry to Effect
the Arrest?
The imminent destruction of evidence is an exigent circumstance justifying
a warrantless entry into a residence to effect an arrest. (People v. Celis, supra, 33
Cal.4th at p. 676.) The People contend that the body’s metabolization of alcohol
qualified as the imminent destruction of evidence justifying a warrantless entry.
Defendant disagrees, relying largely on Welsh.
Welsh held that the need to ascertain a suspect’s blood-alcohol level did not
justify a warrantless entry into a residence to effect an arrest for driving under the
influence in Wisconsin. (Welsh, supra, 466 U.S. at pp. 753-754.) Welsh did not
dispute the evanescent character of evidence of intoxication. Rather, the high
court invalidated the arrest because “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.” (Id. at p. 753; see also Brigham City v. Stuart
(May 22, 2006, No. 05-502) __ U.S. __, ___ [2006 WL 1374566, *5].) “[T]he
best indication of the State’s interest in precipitating an arrest,” the court
explained, is the classification of the offense and the possible punishment, which
“can be easily identified both by the courts and by officers faced with a decision to
arrest.” (Welsh, supra, at p. 754.)
Defendant, like the Court of Appeal here, reasons that DUI is likewise a
minor offense in California and, under Welsh, cannot justify a warrantless entry to
effect an arrest. We disagree. Wisconsin has chosen to classify a first offense for
DUI as a noncriminal, civil forfeiture offense for which no imprisonment is
9
possible. (Welsh, supra, 466 U.S. at p. 754, citing Wis. Stat. § 346.65(2) (1975).)
The issue thus presented in Welsh, as the high court explicitly stated, was whether
“the Fourth Amendment prohibits the police from making a warrantless night
entry of a person’s home in order to arrest him for a nonjailable traffic offense.”
(Welsh, supra, 466 U.S. at p. 742, italics added.) California, by contrast, classifies
a first offense for driving under the influence as a criminal act that is punishable
by no more than six months and no less than 96 hours in jail. (Veh. Code, §
23536, subd. (a).) The possibility of imprisonment distinguishes DUI in
California from DUI in Wisconsin.
Other factors confirm that, in California, driving under the influence is not
an “extremely minor” offense within the meaning of Welsh, supra, 466 U.S. at
page 753. When the Legislature amended Vehicle Code section 40300.5 to allow
warrantless arrests for this misdemeanor offense not committed in the presence of
the officer, it found and declared “that driving while under the influence of alcohol
or drugs continues to pose a substantial danger to public health and safety, injuring
over 65,000 people per year and killing an additional 2,400. Given the severity of
the conduct involved, the exception in Section 40300.5 of the Vehicle Code from
the general requirements of Section 836 of the Penal Code should be expanded to
cover other instances in which the officer has reasonable cause to believe that the
person to be arrested had been driving while under the influence of alcohol, drugs,
or both.” (Stats.1984, ch. 722, § 2, pp. 2646-2647; see also People v. Schofield,
supra, 90 Cal.App.4th at p. 973 [“The Legislature has recognized that driving
under the influence is widespread and serious with potential for catastrophic
consequences”].) This court, too, has recognized the “monstrous proportions of
the problem” as well as “the horrific risk posed by those who drink and drive”
(Burg v. Municipal Court (1983) 35 Cal.3d 257, 262) and has declared its “resolve
to support ‘all possible means of deterring persons from driving automobiles after
10
drinking.’ ” (Peterson v. Superior Court (1982) 31 Cal.3d 147, 155.) We
therefore believe Welsh was limited to Wisconsin’s “amazing” decision to classify
DUI as a civil nonjailable offense (Welsh, supra, 466 U.S. at p. 755 (conc. opn. of
Blackmun, J.)) and not as a categorical bar on warrantless arrests in the home for
DUI in the vast majority of states that, like California, classify it as a crime with
the possibility of imprisonment. (People v. Hampton, supra, 164 Cal.App.3d 27,
34; see also Welsh, supra, 466 U.S. at p. 761 (dis. opn. of White, J.) [“a bright-line
distinction between felonies and misdemeanors is untenable”; “the Court—wisely
in my view—does not adopt such an approach”].)
Illinois v. McArthur (2001) 531 U.S. 326 (McArthur), which construed the
scope of exigent circumstances in the related circumstance of preventing a suspect
from entering his own home, provides additional support for our understanding of
Welsh. In McArthur, the police suspected that marijuana had been hidden
underneath the couch of the trailer where McArthur was living. The police
informed McArthur of their suspicions and asked for permission to search the
trailer, which McArthur denied. While one officer went to get a search warrant,
McArthur was told he could not reenter the trailer unless an officer accompanied
him. McArthur then reentered the trailer two or three times, and each time an
officer stood just inside the door to observe what McArthur did. About two hours
later, an officer returned with the warrant and found a small amount of marijuana
in the trailer. (McArthur, supra, 531 U.S. at p. 329.) Relying on Welsh, McArthur
argued that misdemeanor possession of marijuana, which was punishable in
Illinois by up to 30 days in jail, was too minor an offense to justify the warrantless
restraint he had suffered. (McArthur, at pp. 335-336.) The high court disagreed,
reiterating that “ ‘the penalty that may attach to any particular offense seems to
provide the clearest and most consistent indication of the State’s interest in
arresting individuals suspected of committing that offense’ ” (id. at p. 336, quoting
11
Welsh, supra, 466 U.S. at p. 754, fn. 14.) and finding “significant distinctions”
between “crimes that were ‘jailable,’ not ‘nonjailable.’ ” (McArthur, at p. 336; see
also id. at p. 337 (conc. opn. of Souter, J.) [observing that the risk of destruction of
evidence of the misdemeanor would have justified a warrantless entry into the
trailer].)
A substantial majority of our sister jurisdictions have limited Welsh’s
holding to nonjailable offenses and have thereby rejected defendant’s extension of
its rule to misdemeanor offenses where imprisonment is a potential penalty.
(Mendez v. People (Colo. 1999) 986 P.2d 275, 283 [distinguishing Welsh as
involving “a minor, civil, nonjailable offense”]; Dolan v. Salinas (Conn.Super.Ct.
1999) 1999 Conn. Super. LEXIS 1988, *13 [“Unlike the State of Wisconsin,
Connecticut provides for incarceration on a first conviction” for DUI]; Dyer v.
State (Fla.Dist.Ct.App. 1996) 680 So.2d 612, 613 [a misdemeanor punishable by
up to a year in jail is “classified as a much more serious offense than in Welsh”];
Threatt v. State (Ga.Ct.App. 1999) 524 S.E.2d 276, 280 (Threatt) [distinguishing
Welsh because DUI, which is punishable by imprisonment of 10 days to 12
months, is “sufficiently serious criminal activity to justify an officer’s warrantless,
nonconsensual entry into a suspect’s home to arrest the suspect”]; People v. Lagle
(Ill.App.Ct. 1990) 558 N.E.2d 514, 519 [distinguishing Welsh because DUI, a
misdemeanor, is “considered a serious offense in Illinois”]; State v. Legg (Iowa
2001) 633 N.W.2d 763, 773 [distinguishing Welsh because DUI, which is
punishable by two days to one year in jail, is a “serious misdemeanor”]; State v.
Paul (Minn. 1996) 548 N.W.2d 260, 267 [distinguishing Welsh because DUI is a
misdemeanor and the legislature had authorized warrantless arrests for this offense
when it occurs outside the officer’s presence]; City of Kirksville v. Guffey
(Mo.Ct.App. 1987) 740 S.W.2d 227, 229 [distinguishing Welsh because DUI is
punishable by up to six months in jail]; State v. Ellinger (Mont. 1986) 725 P.2d
12
1201, 1204 [distinguishing Welsh because DUI is a criminal offense with the
possibility of imprisonment]; State v. Nikola (N.J.Super.Ct.App.Div. 2003) 821
A.2d 110, 118 [distinguishing Welsh because “in this State a charge of driving
while under the influence of alcohol may subject an offender to a jail term of up to
thirty days even for a first offense”]; People v. Odenweller (App.Div. 1988) 527
N.Y.S.2d 127, 129 [distinguishing Welsh because DUI is punishable by up to one
year in jail]; Beachwood v. Sims (Ohio Ct.App. 1994) 647 N.E.2d 821, 825
[distinguishing Welsh because DUI is a misdemeanor punishable by a minimum
term of three days in jail]; State v. Roberts (Or.Ct.App. 1985) 706 P.2d 564, 566
[distinguishing Welsh because DUI is a misdemeanor punishable by up to one year
in jail]; Beaver v. State (Tex.Crim.App. 2003) 106 S.W.3d 243, 248
[distinguishing Welsh “from cases, such as this one, where the offense is
‘jailable’ ”]; City of Orem v. Henrie (Utah Ct.App. 1994) 868 P.2d 1384, 1392
[distinguishing Welsh because DUI is a misdemeanor punishable by
imprisonment]; Cherry v. Com. (Va.Ct.App. 2004) 605 S.E.2d 297, 307 [“if any
bright line exists for warrantless entries into the home, it should be drawn between
jailable and nonjailable offenses rather than between felonies and
misdemeanors”]; State v. Griffith (Wash.Ct.App. 1991) 808 P.2d 1171, 1176 & fn.
7 [distinguishing Welsh as a case involving a noncriminal, civil forfeiture offense
without possible imprisonment]; Goines v. James (W.Va. 1993) 433 S.E.2d 572,
577-578 [distinguishing Welsh because DUI is a serious traffic offense punishable
by up to six months in jail]; State v. Hughes (Wis. 2000) 607 N.W.2d 621, 631
[distinguishing Welsh because the misdemeanor offense was punishable by up to
six months in jail]; Rideout v. State (Wyo. 2005) 122 P.3d 201, 210 [“The
unmistakable implication of the discussion in McArthur is that the distinction
drawn by the Court in Welsh between minor offenses that do not justify a
warrantless entry into a residence and those offenses that do is predicated upon
13
whether the subject offense carries a potential jail term”]; accord, Joyce v. Town of
Tewksbury, Mass. (1st Cir. 1997) 112 F.3d 19, 22 (en banc) [“the fact that
Massachusetts classifies the alleged violation here as a misdemeanor does not
reduce it to a ‘minor offense’ ” within the meaning of Welsh].).)
Against this impressive array of authority, we have found only three courts
that, like the Court of Appeal below, have extended Welsh to misdemeanors
carrying a possibility of imprisonment. In Patzner v. Burkett (8th Cir. 1985) 779
F.2d 1363, the Eighth Circuit asserted, without much analysis, that the punishment
for DUI in North Dakota—a minimum sentence of a $100 fine or three days in
jail—was only a “minor difference in penalty” and thus was “not sufficient to
support a result different from that reached in Welsh,” inasmuch as the state had
since amended its statute to eliminate the possibility of imprisonment for first-time
offenders. (Patzner, supra, 779 F.2d at pp. 1368-1369 & fn. 6.) In State v. Flegel
(S.D. 1992) 485 N.W.2d 210, the South Dakota Supreme Court made the
remarkable assertion that the misdemeanor penalties for first-offense DUI, which
ranged up to one year in jail, were “similar” to those attaching to the nonjailable
traffic offense in Welsh and the misdemeanor penalties in Patzner. (Flegel, supra,
485 N.W.2d at p. 215.) And in Norris v. State (Ark. 1999) 993 S.W.2d 918, the
Arkansas Supreme Court held that DUI, which was punishable by up to one year
in jail, was “relatively minor” when compared to criminal offenses involving
violence or the threat of violence. (Id. at p. 923; but see 3 LaFave, Search and
Seizure (4th ed. 2004) § 6.1(f), p. 316, fn. 211 [criticizing Norris].) )
We do not find these decisions persuasive. First of all, they ignore Welsh
itself, which cautions that the critical factor is not the nature of the crime but “the
penalty that may attach to any particular offense.” (Welsh, 466 U.S. at p. 754, fn.
14; see also Colb, The Qualitative Dimension of Fourth Amendment
“Reasonableness” (1998) 98 Colum. L.Rev. 1642, 1683 [“If Wisconsin were
14
unhappy with the Court’s decision, it could, therefore, nullify it prospectively by
simply changing (legislatively) the status of driving while intoxicated from a civil
violation to a criminal offense”].) Indeed, they all predate McArthur, which
clarified that the significant distinction for Fourth Amendment purposes in an
analogous context is whether the crimes were “ ‘jailable’ ” or “ ‘nonjailable.’ ”
(McArthur, supra, 531 U.S. at p. 336.) Moreover, none of these cases
acknowledges the substantial weight of authority limiting Welsh to nonjailable
offenses—or even cites a single contrary case. Finally, a bright-line rule limiting
warrantless entries to felonies “would send a message to the ‘bad man’ who drinks
and drives that a hot pursuit or arrest set in motion can be thwarted by beating the
police to one’s door. The Fourth Amendment simply cannot be stretched nor can
public safety be ensured by a bright-line felony rule which would encourage drunk
drivers to elude the police by racing through the streets to the sanctuary of their
houses in order to ‘freeze’ a hot pursuit or to otherwise evade a lawful arrest.”
(State v. Paul, supra, 548 N.W.2d at p. 268.)
If, as we have concluded, a finding of exigent circumstances in DUI cases
is not categorically precluded by Welsh, we must next consider whether exigent
circumstances justified the warrantless entry in this particular case. The People
rely on the exception to the warrant requirement for the imminent destruction of
evidence. They point out (1) that defendant’s blood-alcohol level would have
diminished while the police sought a warrant as the body metabolized the alcohol,
and (2) that defendant could have masked his blood-alcohol level while the police
sought a warrant by ingesting more alcohol. The People’s concerns are well
founded.
It is beyond dispute that “the percentage of alcohol in the blood begins to
diminish shortly after drinking stops, as the body functions to eliminate it from the
system.” (Schmerber v. California (1966) 384 U.S. 757, 770.) Because the “delay
15
necessary to procure a warrant . . . may result in the destruction of valuable
evidence,” “blood and breath samples taken to measure whether these substances
were in the bloodstream when a triggering event occurred must be obtained as
soon as possible.” (Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S.
602, 623.) Neither defendant nor the dissenting opinion here offers any reason
why the dissipation of blood-alcohol evidence may be deemed to threaten the
imminent destruction of evidence in Schmerber and in Skinner but not in this case.
Nor does defendant offer any authority for his assertion at oral argument that the
exigent circumstance relating to the imminent destruction of evidence
encompasses only that evidence which qualifies as contraband or as an
instrumentality of a crime. To the contrary, most courts have concluded that the
dissipation of blood-alcohol evidence “may constitute an exigent circumstance
under the facts of a particular case.” (City of Orem v. Henrie, supra, 868 P.2d at
p. 1389; accord, Threatt, supra, 524 S.E.2d at p. 281, fn. 1 [“when an officer has
probable cause to arrest for the offense of DUI, the need to prevent destruction of
evidence (which may occur by the dissipation of alcohol from a DUI suspect’s
blood while a warrant is obtained) may constitute an exigent circumstance which
could justify a nonconsensual, warrantless entry into the suspect’s home to arrest
the suspect”]; State v. Komoto (Wash.Ct.App. 1985) 697 P.2d 1025, 1033 [“This
proposition is generally accepted by federal and state courts”]; State v. Bohling
(Wis. 1993) 494 N.W.2d 399, 404-405 [citing cases]; U.S. v. Reid (4th Cir. 1991)
929 F.2d 990, 993-994.)1
1
The dissent concedes that the dissipation of blood-alcohol evidence may
constitute an exigent circumstance to justify a warrantless entry to effect an arrest,
but would limit such arrests to crimes “far more serious than mere driving under
the influence.” (Dis. opn., post, at p. 7.) The text of the Fourth Amendment,
however, offers no basis for distinguishing between DUI, which is a serious and
(footnote continued on next page)
16
Defendant contends that no exigency existed because there is a rebuttable
presumption that a driver had a blood-alcohol level of 0.08 percent or more at the
time of driving if the person had a blood-alcohol level of 0.08 percent or more in a
chemical test performed “within three hours after the driving.” (Veh. Code,
§ 23152, subd. (b).) Defendant misapprehends the significance of this provision,
which is not a presumption at all, but only a permissive inference. (Judicial
Council of Cal., Jury Instns. (2006) Bench Note to CALCRIM No. 2111, p. 149;
accord, Use Note to CALJIC No. 12.61.1 (Jan. 2005 ed.) p. 845.) That the jury
may, but is not required to, conclude that defendant’s blood-alcohol level was in
excess of legal limits based on a test taken within three hours of the driving does
not eviscerate the People’s interest in securing a blood test as soon as possible.
(State v. Bohling, supra, 494 N.W.2d at p. 405; City of Orem v. Henrie, supra, 868
P.2d at p. 1393, fn. 10 [such a limitation “evinces the Legislature’s intent to
promote the rapid attainment of chemical tests for alcohol content”].)
We are likewise unpersuaded by defendant’s claim that any exigency is
eliminated because of the possibility an expert could testify about the defendant’s
blood-alcohol level at an earlier point “by extrapolating backward from the later-
taken results.” As courts have recognized, “such extrapolations can be
speculative.” (State v. Bohling, supra, 494 N.W.2d at p. 405.) “[T]here are
numerous variables such as weight, or time and content of last meal which may
(footnote continued from previous page)
jailable offense in California (see ante, at pp. 10-11), and the crimes alleged in
Henrie and Komoto, nor does the dissent point to any case law to support such a
distinction. Indeed, inasmuch as the dissent concedes that the nonjailable offense
in Welsh is distinguishable from the jailable offense in this case (dis. opn., post, at
p. 3), the line the dissent would draw between this case and Henrie or Komoto
remains undefined.
17
affect the rate at which the alcohol dissipates.” (Carleton v. Superior Court
(1985) 170 Cal.App.3d 1182, 1185; see also Bennett v. Coffman (W.Va. 1987) 361
S.E.2d 465, 469 [degree of physical exertion can affect body’s metabolism of
alcohol].)2
In any event, none of defendant’s arguments is responsive to the corruption
of evidence that occurs when the suspect takes advantage of any delay to ingest
more alcohol—or to claim to have done so—or when the suspect evades police
capture until he or she is no longer intoxicated. Numerous courts have recognized
this possibility as an additional reason supporting a finding of exigent
circumstances in DUI cases. (Welsh, supra, 466 U.S. at p. 763 (dis. opn. of White,
J.); State v. Lovig (Iowa 2004) 675 N.W.2d 557, 566 & fn. 2; State v. Legg, supra,
633 N.W.2d at pp. 772-773; State v. Seamans, supra, 2005 Me. Super. LEXIS
105, *11, fn. 3; State v. Paul, supra, 548 N.W.2d at p. 267; City of Kirksville v.
Guffey, supra, 740 S.W.2d at p. 229; People v. Odenweller, supra, 527 N.Y.S.2d
at p. 129; Stark v. N.Y. State Dept. of Motor Vehicles (N.Y.App.Div. 1984) 483
N.Y.S.2d 824, 826-827, affd. (N.Y. 1985) 492 N.Y.S.2d 8, 9; City of Orem v.
2
Defendant also argues that a person suspected of DUI may refuse to submit
to chemical testing and accept the specified punishment, rendering the blood-
alcohol evidence superfluous. Defendant once again misapprehends the statutory
scheme. A person who drives a motor vehicle “is deemed to have given his or her
consent to chemical testing” of his or her blood, breath, or urine for the purpose of
determining the alcoholic or drug content of his or her blood (Veh. Code, § 23612,
subds. (a)(1)(A) & (B), (d)(2)). “It is thus firmly established that a drunken driver
has no right to resist or refuse such a test.” (Bush v. Bright (1968) 264 Cal.App.2d
788, 792.) Moreover, the possibility of sanctions under Vehicle Code section
13353 for the driver’s refusal to submit to chemical tests does not preclude the
People from also obtaining a blood sample without any further approval, based on
the consent any driver has given under section 23612, and punishing the driver for
the criminal act of driving under the influence. (Covington v. Department of
Motor Vehicles (1980) 102 Cal.App.3d 54, 60; People v. Fite (1968) 267
Cal.App.2d 685, 690-691.)
18
Henrie, supra, 868 P.2d at p. 1393; State v. Komoto, supra, 697 P.2d at p. 1033.)
In this case, the corruption of evidence was not merely a theoretical possibility.
The officers had good reason to believe that defendant, who had attempted to flee
out the back door upon learning of their presence, would escape again or otherwise
act to conceal his intoxication if given the opportunity. (See People v. Murphy
(2005) 37 Cal.4th 490, 500.) Time was of the essence here.
In holding that exigent circumstances justified the warrantless entry here,
we need not decide—and do not hold—that the police may enter a home without a
warrant to effect an arrest of a DUI suspect in every case. We hold merely that the
police conduct here, taking into account all of the circumstances, was
reasonable—with reasonableness measured as “ ‘a balance between the public
interest and the individual’s right to personal security free from arbitrary
interference by law officers.’ ” (Pennsylvania v. Mimms (1977) 434 U.S. 106,
109; accord, People v. Ramey (1976) 16 Cal.3d 263, 276 [“There is no ready
litmus test for determining whether such circumstances exist, and in each case the
claim of an extraordinary situation must be measured by the facts known to the
officers”].)
The state’s interest in effecting an arrest here was substantial. There was
strong evidence that defendant had committed the dangerous act of DUI, a jailable
offense. Officer Dejohn feared, however, the evidence of that crime was in
imminent danger of destruction. His suspicions were justified. Slavka Kovarick
had told the police, alternately, that defendant would be coming to the door soon,
and that he was asleep and could not be woken up, but he was in fact neither
sleeping nor coming to the door. Instead, he spoke quietly in the hall with
Kovarick and then walked away from the officers into the backyard. The police
were able to see defendant leave the house only because the front door was open,
and defendant returned to the house only after Officer Dejohn made eye contact
19
with him and motioned for him to come back in. Having attempted to flee once,
defendant was at risk of doing so again if he was not promptly taken into custody.
Had he escaped, the evidence of his crime would have dissipated. Even if he had
been prevented from escaping, he had already demonstrated plainly his desire to
evade police investigation and could have corrupted the evidence simply by
resuming drinking. The police thus had ample cause to believe defendant was
inside the house and that the evidence was at risk of imminent destruction, as the
superior court found. (Cf. Vale v. Louisiana (1970) 399 U.S. 30, 34-35 [no
exigency existed where the officers had no basis for suspecting anyone was inside
the house or about to destroy the narcotics].)
The Court of Appeal emphasized in particular that the police had not
conducted a hot pursuit in that the pursuit was initiated by a citizen and the police
did not observe defendant driving or entering the house. Even if the definition of
hot pursuit were to exclude the situation here (but see People v. Escudero (1979)
23 Cal.3d 800, 810 [“it is not necessary that the suspect be kept physically in view
at all times”]), it is clear that defendant had arrived at the house only minutes
before the police. The police thus had reasonable cause to believe the evidence of
defendant’s intoxication would be fresh at the time of his arrest.
The intrusion on defendant’s privacy, by contrast, was a diminished one.
Kovarick had left the front door wide open during the entire encounter. This not
only rendered a forcible entry unnecessary, but it exposed to public view the very
area where the arrest would later occur. (Cf. U.S. v. Gori (2d Cir. 2000) 230 F.3d
44, 53 [“Once the apartment was opened to public view by the defendants in
response to the knock of an invitee, there was no expectation of privacy as to what
could be seen from the hall”]; U.S. v. Vaneaton (9th Cir. 1995) 49 F.3d 1423,
1427.) Moreover, Officer Dejohn entered only a few feet beyond the threshold,
and Officer Gutierrez followed only when it became apparent that his assistance
20
was necessary to overcome defendant’s resistance. Neither conducted a search of
the residence. In short, the state’s intrusion into the home was the minimum
necessary to effect the arrest and extended only to areas already exposed to public
view. Under these circumstances, it was reasonable for the police to enter the
home without a warrant in order to arrest defendant and thereby prevent the
imminent destruction of evidence of his crime.3
In light of our holding, we find it unnecessary to address the People’s
additional argument that even if the warrantless entry had violated the Fourth
Amendment, the exclusionary rule would not extend to the officers’ observations
of defendant outside the house, any statements defendant made prior to the entry
or after defendant was removed from the house, or the results of his blood-alcohol
test. (See New York v. Harris, supra, 495 U.S. at p. 19; People v. Marquez (1992)
1 Cal.4th 553, 569.)
DISPOSITION
The judgment of the Court of Appeal is reversed.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
3
To the extent dictum in People v. Schofield, supra, 90 Cal.App.4th at pages
970 and 975, is inconsistent with the views expressed herein, it is disapproved.
21
DISSENTING OPINION BY WERDEGAR, J.
“A man’s house is his castle.” (Miller v. United States (1958) 357 U.S.
301, 307.) This phrase expresses the view that one’s home is a place of personal
privacy and its inhabitants are entitled to freedom from governmental intrusion
absent a very good reason. “At the risk of belaboring the obvious, private
residences are places in which the individual normally expects privacy free of
governmental intrusion not authorized by a warrant, and that expectation is plainly
one that society is prepared to recognize as justifiable.” (United States v. Karo
(1984) 468 U.S. 705, 714, quoted with approval in People v. Camacho (2000) 23
Cal.4th 824, 831.) “We have, after all, lived our whole national history with an
understanding of ‘the ancient adage that a man’s home is his castle [to the point
that t]he poorest man may in his cottage bid defiance to all the forces of the
Crown.’ ” (Georgia v. Randolph (2006) ___ U.S. ___, ___ [126 S.Ct. 1515,
1524].)
Not just some forgotten vestige of 15th century English law that allowed
English peasants to assert their rights against a powerful monarchy, the view that
one’s home is a place of privacy was also shared by the Framers of the United
States Constitution. We need not interpret or gloss the constitutional text for
hidden or obscure meaning, for the drafters of the Fourth Amendment made this
point plain on the face of the document: “The right of the people to be secure in
their persons, houses, papers and effects, against unreasonable searches and
1
seizures, shall not be violated, and no warrants shall issue, but upon probable
cause.” (U.S. Const., 4th Amend., italics added.)
The United States Supreme Court has emphasized repeatedly the primacy
of the constitutional protection for persons in their homes. “ ‘[P]hysical entry of
the home is the chief evil against which the wording of the Fourth Amendment is
directed.’ ” (Payton v. New York (1980) 445 U.S. 573, 585.) “At the very core [of
the Fourth Amendment] stands the right of a man to retreat into his own home and
there be free from unreasonable governmental intrusion.” (Silverman v. United
States (1961) 365 U.S. 505, 511.) The high court has been vigilant in extending
this concept in the face of new technological threats to the sanctity of the home.
(See Kyllo v. United States (2001) 533 U.S. 27, 28 [warrantless use of a thermal
imaging device to explore details inside home violated 4th Amend.]; United States
v. Karo, supra, 468 U.S. 705 [warrantless placement of a beeper into a home
violated 4th Amend.].)
This court has also on numerous occasions recognized this special
constitutional protection for persons in their homes. For example, we held a
warrantless search of a suspect’s home could not be justified by a parole search
condition of which police were unaware (People v. Sanders (2003) 31 Cal.4th 318,
324); that, absent more, the warrantless entry into a suspect’s home was not
justified solely by the arrest of the suspect outside the home (People v. Celis
(2004) 33 Cal.4th 667, 676); that a person’s expectation of privacy in the home
was not compromised by his exposure of the home’s interior to a private side yard
(People v. Camacho, supra, 23 Cal.4th 824); and that the presumptive
constitutional protection of the home extended to an attached garage (People v.
Robles (2000) 23 Cal.4th 789, 795; see Cal. Const., art. I, § 13). Perhaps our
seminal case in this area is People v. Ramey (1976) 16 Cal.3d 263, where we held
the warrantless entry into a suspect’s home to make an arrest, even though
2
supported by probable cause to believe he was guilty of a felony, was
unreasonable per se under the Fourth Amendment to the United States
Constitution and the state Constitution, at least in the absence of exigent
circumstances. Four years later, the United States Supreme Court came to this
view itself, holding in Payton v. New York that, in the absence of exigent
circumstances, police entry into a suspect’s home to arrest him for a felony was
“presumptively unreasonable” in the absence of a warrant. (Payton v. New York,
supra, 445 U.S. at p. 587.)
I agree with the majority that Welsh v. Wisconsin (1984) 466 U.S. 740,
wherein the high court concluded the warrantless arrest of a suspected drunk
driver in his home was invalid, may plausibly be distinguished from the instant
case on the ground the crime at issue in that case was not a jailable offense. (Maj.
opn., ante, at pp. 9-10; Welsh v. Wisconsin, at pp. 742 [emphasizing crime was “a
nonjailable traffic offense”], 753 [“important factor” was “the gravity of the
underlying offense” and that crime was “a noncriminal, traffic offense”].) But
even assuming Welsh is distinguishable from the instant case on the ground that
incarceration is a possible punishment for drunk driving in California, I am not
persuaded police were legally entitled, on the facts of this case, to enter
defendant’s home against his wishes without a warrant. The majority concedes, as
it must, the Fourth Amendment’s presumptive protection of persons in their
homes, but reasons the warrantless entry into this defendant’s home was justified
by exigent circumstances. Because I disagree such circumstances existed here,
and because I also find the majority’s attempt to circumscribe the sweep of its
holding unpersuasive, I dissent.
I
The ultimate standard established by the Fourth Amendment to the United
States Constitution is one of reasonableness. (Cady v. Dombrowski (1973) 413
3
U.S. 433, 439.) Beginning with the unassailable proposition that the warrantless
entry by government agents into a person’s home is “presumptively unreasonable”
(Payton v. New York, supra, 445 U.S. at p. 587, italics added), courts have
nevertheless recognized some “ ‘specifically established and well-delineated
exceptions’ to the warrant requirement (Katz v. United States (1967) 389 U.S. 347,
357), such as ‘ “hot pursuit of a fleeing felon, or imminent destruction of evidence,
. . . or the need to prevent a suspect’s escape, or the risk of danger to the police or
to other persons inside or outside the dwelling” ’ (Minnesota v. Olson (1990) 495
U.S. 91, 100).” (People v. Celis, supra, 33 Cal.4th at p. 676.) “A warrantless
search by the police is invalid unless it falls within one of the narrow and well-
delineated exceptions to the warrant requirement.” (Flippo v. West Virginia
(1999) 528 U.S. 11, 13; People v. Wharton (1991) 53 Cal.3d 522, 576-577
[same].)
Once defendant demonstrated that police entered his home without a
warrant, the burden shifted to the prosecution “to prove that the entry was
nevertheless reasonable.” (People v. Williams (1988) 45 Cal.3d 1268, 1300.)
Police admittedly did not have an arrest warrant permitting them to enter
defendant’s home and had been expressly denied consent to enter by defendant’s
housemate. (Georgia v. Randolph, supra, ___ U.S. ___ [126 S.Ct. 1515].)
Although the majority hints otherwise (maj. opn., ante, at p. 20), the forced entry
cannot be justified under the hot pursuit doctrine, as “there was no immediate or
continuous pursuit . . . from the scene of the crime.” (Welsh v. Wisconsin, supra,
466 U.S. at p. 753.) Defendant had already arrived home, he was apparently
sleeping in his bedroom, and police were on the scene; hence, “there was little
remaining threat to the public safety.” (Ibid.)
The majority concludes the failure by police to obtain a warrant before
entering defendant’s home is excused by the exigent-circumstances exception to
4
the warrant requirement. “ ‘ “ ‘[E]xigent circumstances’ means an emergency
situation requiring swift action to prevent imminent danger or serious damage to
property, or to forestall the imminent escape of a suspect or destruction of
evidence. There is no ready litmus test for determining whether such
circumstances exist, and in each case the claim of an extraordinary situation must
be measured by the facts known to the officers.” ’ [Citations.] The exception is
applicable to the federal Constitution (see Mincey v. Arizona (1978) 437 U.S. 385)
and ‘California courts are in full accord with the . . . emergency exception to the
warrant requirement.’ ” (People v. Wharton, supra, 53 Cal.3d at p. 577.)
“In evaluating exigency, relevant factors include ‘ “(1) the degree of
urgency involved and the amount of time necessary to obtain a warrant;
(2) reasonable belief that the contraband is about to be removed; (3) the possibility
of danger to police officers guarding the site of the contraband while a search
warrant is sought; (4) information indicating the possessors of the contraband are
aware that the police are on their trail; and (5) the ready destructibility of the
contraband and the knowledge ‘that efforts to dispose of narcotics and to escape
are characteristic behavior of persons engaged in the narcotics traffic.’ ” ’ ”
(People v. Gentry (1992) 7 Cal.App.4th 1255, 1261-1262.)
The majority locates such an emergency situation inside defendant’s body,
which was slowly but inexorably metabolizing and thus destroying the alcohol
police believed he had consumed. The emergency, in other words, involved the
potential destruction of the evidence of defendant’s crime of drunk driving. That
such “burn off” occurs is undisputed. (People v. Schofield (2001) 90 Cal.App.4th
968, 975; see In re Martin (1962) 58 Cal.2d 509, 512 [“It is a matter of common
knowledge that the intoxicating effect of alcohol diminishes with the passage of
time”].) What is disputed is whether this natural metabolic process, standing
5
alone, constitutes an emergency such that police may dispense with obtaining a
warrant and immediately enter a person’s home against his will.
None of the cases on which the majority relies supports its broad
conclusion that the natural metabolization of blood alcohol alone constitutes an
exigent circumstance sufficient to permit police to enter a person’s home against
his or her wishes and without a warrant. For example, in Schmerber v. California
(1966) 384 U.S. 757, the United States Supreme Court cited the natural
metabolization of a body’s blood alcohol to justify the police taking a
nonconsensual blood sample from a suspect notwithstanding the lack of a search
warrant. But the defendant in Schmerber had already been arrested and was in
police custody, not in his home. Moreover, the fact of the alcohol burn off was
just one factor the high court considered: “We are told that the percentage of
alcohol in the blood begins to diminish shortly after drinking stops, as the body
functions to eliminate it from the system. Particularly in a case such as this,
where time had to be taken to bring the accused to a hospital and to investigate
the scene of the accident, there was no time to seek out a magistrate and secure a
warrant. Given these special facts, we conclude that the attempt to secure
evidence of blood-alcohol content in this case was an appropriate incident to
petitioner’s arrest.” (Id. at pp. 770-771, italics added.) No such time pressures or
“special facts” were shown in the instant case; indeed, police were on the scene
just minutes after defendant apparently had taken his last drink. (See Vale v.
Louisiana (1970) 399 U.S. 30, 35 [in finding no exigent circumstances, court
emphasized absence of evidence showing that obtaining a warrant was
“impracticable”].)
Similarly, in Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S.
602, the high court merely recognized that “alcohol and other drugs are eliminated
from the bloodstream” (id. at p. 623), a point no one disputes; it did not hold such
6
elimination constituted an exigent circumstance entitling police to enter one’s
home without a warrant. Instead, the court held the warrant requirement was
excused because the government’s interest in regulating railway workers presented
a special need beyond normal law enforcement. (Id. at p. 620.)
The majority opines that “most courts have concluded that the dissipation
of blood-alcohol evidence ‘may constitute an exigent circumstance under the facts
of a particular case.’ ” (Maj. opn., ante, at p. 16, italics added.) The qualifiers are
important. The cases the majority cites in support are all distinguishable. In City
of Orem v. Henrie (Utah Ct.App. 1994) 868 P.2d 1384, the defendant was
suspected not only of driving while intoxicated, but also of leaving the scene of an
accident. In State v. Komoto (Wash.Ct.App. 1985) 697 P.2d 1025, the defendant
struck and killed a pedestrian. In both cases, the blood-alcohol evidence was
needed to prosecute crimes far more serious than mere driving under the influence
(DUI). The warrantless entry into a home may therefore have been justified.
Here, by contrast, defendant was suspected only of driving while intoxicated, and
at the time police entered his home any threat to public safety had ceased.
The majority also cites State v. Bohling (Wis. 1993) 494 N.W.2d 399 and
United States v. Reid (4th Cir. 1991) 929 F.2d 990 in support (maj. opn., ante, at
p. 16), but in both cases the defendants were lawfully arrested outside the home, at
the scene of a traffic accident (Bohling) or at a traffic stop on the highway (Reid);
their challenges were to the warrantless drawing of a blood sample. The cases
thus presented a straightforward application of Schmerber v. California, supra,
384 U.S. 757, and do not support the notion that the mere dissipation of blood-
alcohol evidence, standing alone, creates such an emergency that police may enter
a suspect’s home without a warrant or consent.
Finally, the majority cites Threatt v. State (1999) 240 Ga.App. 592, 596
[524 S.E.2d 276], but that case held, on facts similar to those here, that exigent
7
circumstances did not, in fact, exist to authorize the warrantless entry to arrest for
the crime of reckless driving. The Georgia appellate court then stated in dictum
that—had officers possessed probable cause to arrest for DUI—the dissipation of
evidence “may constitute an exigent circumstance.” (Id. at p. 596, fn. 1, italics
added.) In support, the Threatt court cited State v. Tosar (1986) 180 Ga.App. 885,
888 [350 S.E.2d 811], a case that did not involve entry into a home.
Invocation of the exigent-circumstances exception to the warrant
requirement, moreover, must be supported by a showing of the “imminent
destruction of evidence.” (Minnesota v. Olson, supra, 495 U.S. at p. 100, italics
added; see also Brigham City v. Stuart (May 22, 2006, No. 05-502) __ U.S. __, __
[2006 WL 1374566, *4 [destruction of evidence must be “imminent”].) The
prosecution made no showing in this case that the delay in obtaining a warrant
would have resulted in the imminent destruction, as opposed to the gradual and
incremental degradation, of the alcohol in defendant’s body. Indeed, a delay of an
hour or two to obtain a warrant would have made little difference, for “[i]t is
common . . . for experts to take into account the metabolization rate of a substance
and extrapolate from the amount of a substance in a blood sample to arrive at an
opinion regarding the amount of the substance in the blood at a critical point in
time.” (People v. Clark (1993) 5 Cal.4th 950, 993.) The majority disparages the
efficacy of so-called retrograde extrapolation evidence, asserting such evidence
“ ‘can be speculative’ ” (maj. opn., ante, at p. 17), but surely it does not mean to
suggest the admissibility of this type of evidence is suspect. In any event, the rule
in this state (People v. Clark, supra, 5 Cal.4th 950)1 and, indeed, in the majority of
1
See also Vehicle Code section 23152, subdivision (b) which states in part:
“In any prosecution under this subdivision, it is a rebuttable presumption that the
person had 0.08 percent or more, by weight, of alcohol in his or her blood at the
(footnote continued on next page)
8
jurisdictions, is that retrograde extrapolation evidence is admissible, though of
course its weight is subject to challenge, as are the qualifications of the expert
witness presenting the evidence. (See generally Annot., Admissibility and
Sufficiency of Extrapolation Evidence in DUI Prosecutions (2004) 119 A.L.R.5th
379.)
To further support its contention the exigent-circumstances doctrine applies
here, the majority relies on the possibility defendant could have corrupted the
evidence of his alcohol consumption by consuming more alcohol. (Maj. opn.,
ante, at p. 18.) But this argument proves too much, for the possibility exists in
every case that a criminal suspect in his home will try to destroy evidence of his
crime. The drug dealer may flush his stash away, the bookie may burn his betting
slips, the killer may take a metal file to the barrel of his gun or clean his hands of
gunshot residue. The mere possibility a defendant may drink additional quantities
of liquor is insufficient to overcome the constitutionally protected privacy interests
of a person in his home. Instead, police must have articulable facts that would
lead a reasonable officer to believe such destruction is about to occur. “ ‘ “[F]ear
or apprehension alone that evidence will be destroyed will not justify a warrantless
entry of a private home.” [Citation.] Instead, “[t]here must exist ‘specific and
articulable facts which, taken together with rational inferences . . . ,’ support the
warrantless intrusion.” ’ ” (People v. Gentry, supra, 7 Cal.App.4th at p. 1262.)
Vale v. Louisiana, supra, 399 U.S. 30, illustrates this basic point of law. In
that case, after police arrested the defendant outside a home, they entered the
(footnote continued from previous page)
time of driving the vehicle if the person had 0.08 percent or more, by weight, of
alcohol in his or her blood at the time of the performance of a chemical test within
three hours after the driving.”
9
home without a warrant to search for drugs. The Louisiana Supreme Court upheld
the search, in part, because the crime “involved narcotics, which are easily
removed, hidden, or destroyed. It would be unreasonable, the Louisiana court
concluded, ‘to require the officers under the facts of the case to first secure a
search warrant before searching the premises, as time is of the essence inasmuch
as the officers never know whether there is anyone on the premises to be
search[ed] who could very easily destroy the evidence.’ ” (Id. at p. 34.) The
United States Supreme Court flatly rejected the state court’s reasoning, explaining:
“Such a rationale could not apply to the present case, since by their own account
the arresting officers satisfied themselves that no one else was in the house when
they first entered the premises. But entirely apart from that point, our past
decisions make clear that only in ‘a few specifically established and well-
delineated’ situations [citation] may a warrantless search of a dwelling withstand
constitutional scrutiny.” (Ibid.) Because there was no evidence someone was
about to remove or destroy evidence, the high court held the exigent-
circumstances exception did not apply.
As in Vale v. Louisiana, supra, 399 U.S. 30, the prosecution in this case
presented no evidence suggesting defendant was about to alter evidence of his
guilt by drinking again. Neither Officer Gutierrez nor Dejohn observed defendant
drinking, or attempting to drink, any intoxicating beverage. Witness Madelene
Orvos reported that defendant had discarded an empty bottle of vodka.
Defendant’s housemate, Slavka Kovarick, told police defendant was sleeping,
which was apparently the case until police instructed her to awaken him.
Although the majority opines that “[t]he officers had good reason to believe that
defendant . . . would . . . act to conceal his intoxication if given the opportunity”
(maj. opn., ante, at p. 19), the record confirms police possessed no articulable facts
suggesting defendant was actively corrupting, or about to corrupt, the blood-
10
alcohol evidence by resuming his consumption of alcohol. By accepting in
support of exigency the argument that defendant could corrupt the evidence, the
majority converts the narrow exigent-circumstances exception to the constitutional
warrant requirement into a free pass for police: So long as the destruction of
evidence is possible, police may dispense with a warrant. But the possibility a
suspect will destroy evidence exists in every case; that possibility thus cannot be
the predicate for invoking the narrow exigent-circumstances exception to the
constitutional requirement for a warrant. (Cf. People v. Gonzalez (1989) 211
Cal.App.3d 1043, 1050 [“If specific indications of . . . destruction of evidence
were not required, the exigent-circumstances exception would entirely consume”
the knock-notice requirement].)
Realizing, perhaps, that none of its previous rationales adequately justify
the warrantless entry, the majority suggests defendant had attempted to flee. (Maj.
opn., ante, at pp. 19-20.) This suggestion finds no support in the record. Officer
Dejohn testified defendant, on learning police were on his doorstep, left his house
by the back door, walked about 10 feet into the backyard, and then returned to the
house. Although this caused Dejohn to be concerned defendant would flee, he
admitted defendant was so intoxicated that he was staggering and slurring his
words and that he immediately returned to the house. But even assuming
defendant might have attempted to flee, that possibility did not create an
emergency situation justifying the warrantless entry. Police at the scene could
easily have detained him while they sought a warrant. In any event, the
prosecution did not argue below that defendant’s asserted attempt to flee created
an emergency situation, and the trial court did not mention this circumstance. The
court denied defendant’s suppression motion solely on the ground that his body’s
metabolization of alcohol in his blood constituted the destruction of evidence.
11
(See Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640-641 [People cannot
change theory on appeal of suppression decision].)
Finally, the majority attempts to minimize the scope of its holding,
explaining that it does not decide “that police may enter a home without a warrant
to effect an arrest of a DUI suspect in every case. We hold merely that the police
conduct here, taking into account all of the circumstances, was reasonable . . . .”
(Maj. opn., ante, at p. 19.) I find the majority’s attempt to circumscribe the sweep
of its holding both unpersuasive and disingenuous. What are the circumstances in
this case that make it unusual? Police had probable cause to believe defendant had
recently become intoxicated and had driven home and that he was now inside his
house. Police lacked both a warrant and consent to enter. Defendant’s body was
naturally metabolizing the alcohol, but that would be true in every crime involving
alcohol. Defendant might consume additional alcohol, thereby corrupting the
evidence, but that possibility, too, would exist in every case involving an alcohol-
related crime. Police, in any event, had no articulable facts to suggest defendant
was about to drink anything. Under the majority’s reasoning, therefore, it would
appear that any time police have probable cause to arrest someone for an alcohol-
related crime (for which the possible penalty involves some jail time) and they
reasonably believe the suspect is in his home, they may forcibly enter without a
warrant to make an arrest to preserve the blood-alcohol evidence. One can only
hope the majority’s reasoning today is akin to “a restricted railroad ticket, good for
this day and train only.” (Smith v. Allwright (1944) 321 U.S. 649, 669 (dis. opn.
of Roberts, J.).)
II
That those enforcing our criminal laws will proceed vigorously is generally
to society’s benefit, but the Fourth Amendment to the United States Constitution
places reasonable and recognizable limits on such activities. One such limit is that
12
the warrantless entry into an individual’s home is presumptively unreasonable
unless justified by one of the narrow exceptions to the warrant requirement. By
requiring, in all other situations, the interposition of the considered judgment of a
neutral magistrate, the Constitution protects the citizenry’s reasonable expectation
of privacy in their homes. As Justice Robert Jackson explained: “The point of the
Fourth Amendment, which often is not grasped by zealous officers, is not that it
denies law enforcement the support of the usual inferences which reasonable men
draw from evidence. Its protection consists in requiring that those inferences be
drawn by a neutral and detached magistrate instead of being judged by the officer
engaged in the often competitive enterprise of ferreting out crime. Any
assumption that evidence sufficient to support a magistrate’s disinterested
determination to issue a search warrant will justify the officers in making a search
without a warrant would reduce the Amendment to a nullity and leave the people’s
homes secure only in the discretion of police officers. Crime, even in the privacy
of one’s own quarters, is, of course, of grave concern to society, and the law
allows such crime to be reached on proper showing. The right of officers to thrust
themselves into a home is also a grave concern, not only to the individual but to a
society which chooses to dwell in reasonable security and freedom from
surveillance. When the right of privacy must reasonably yield to the right of
search is, as a rule, to be decided by a judicial officer, not by a policeman or
Government enforcement agent.” (Johnson v. United States (1948) 333 U.S. 10,
13-14.)
The majority endorses a scheme today by which police may too easily
evade the warrant requirement. Because I conclude its reasoning and result are
contrary to the Fourth Amendment to the United States Constitution, I dissent.
WERDEGAR, J.
13
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Thompson
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 124 Cal.App.4th 96
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S130174Date Filed: June 1, 2006
__________________________________________________________________________________
Court:
SuperiorCounty: Santa Barbara
Judge: Frank J. Ochoa
__________________________________________________________________________________
Attorneys for Appellant:
Richard B. Lennon, under appointment by the Supreme Court, for Defendant and Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Thomas W. Sneddon, Jr., District Attorney, and Gerald McC. Franklin, Deputy District Attorney, forPlaintiff and Respondent.
David Labahn; George Kennedy, District Attorney (Santa Clara) and Neal J. Kimball, Deputy District
Attorney, for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Richard B. LennonCalifornia Appellate Project
520 S. Grand Ave., 4th Floor
Los Angeles, CA 90071
(213) 243-0300
Gerald McC. Franklin
Deputy District Attorney
1112 Santa Barbara Street
Santa Barbara, CA 93101
(805) 568-2300
Date: | Docket Number: |
Thu, 06/01/2006 | S130174 |
1 | Thompson, Daniel Lyon (Defendant and Appellant) Represented by Richard B. Lennon California Appellate Project 520 S. Grand Avenue, Suite 400 Los Angeles, CA |
2 | Thompson, Daniel Lyon (Defendant and Appellant) Represented by California Appellate Project - La 520 S. Grand Avenue, Suite 400 520 S. Grand Avenue, Suite 400 Los Angeles, CA |
3 | The People (Plaintiff and Respondent) Represented by Gerald Mcc. Franklin Office of the District Attorney 1114 Santa Barbara Street Santa Barbara, CA |
4 | California District Attorneys Association (Amicus curiae) Represented by David Richard Labahn California District Attorneys Assocation 70 West Hedding Street, West Wing San Jose, CA |
Disposition | |
Jun 1 2006 | Opinion: Reversed |
Dockets | |
Dec 27 2004 | Petition for review filed By counsel for Respondent {The People}. |
Dec 27 2004 | Record requested |
Jan 5 2005 | Received Court of Appeal record file jacket |
Feb 3 2005 | Note: requested remaning volumes. |
Feb 10 2005 | Received Court of Appeal record one manila folder. |
Feb 16 2005 | Petition for review granted (criminal case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ. |
Mar 8 2005 | Counsel appointment order filed Upon request of appellant for appointment of counsel, the California Appellate Project is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed. |
Mar 17 2005 | Request for extension of time filed by respondent requesting a 60-day extension to and including May 17, 2005, to file respondent's opening brief on the merits. |
Mar 23 2005 | Extension of time granted To May 17, 2005 to file Respondent's Opening Brief on the Merits. |
May 17 2005 | Opening brief on the merits filed By counsel for Respondent. |
Jun 13 2005 | Request for extension of time filed by appellant Daniel Thompson: asking to August 15, 2005 to file answer brief on the merits |
Jun 17 2005 | Extension of time granted To August 15, 2005 to file appellant's answer brief on the merits. No further extensions of time are contemplated. |
Aug 11 2005 | Request for extension of time filed to file answer brief/merits [appellant's] to 09-07-05. |
Aug 16 2005 | Extension of time granted to serve and file the opening brief on the merits to and including September 7, 2005. No further extensions of time will be granted. |
Sep 7 2005 | Answer brief on the merits filed appellant's. |
Sep 13 2005 | Received application to file Amicus Curiae Brief California District Attorney Association in support of Respondent. |
Sep 19 2005 | Order filed The application of California District Attorneys Association for permission to file an amicus curiae brief in support of respondent is hereby DENIED without prejudice to new application after respondent's reply brief is filed. |
Sep 27 2005 | Reply brief filed (case fully briefed) Respondent (Thompson) by counsel. |
Oct 19 2005 | Received application to file Amicus Curiae Brief CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION in support of Respondent (People). |
Oct 21 2005 | Permission to file amicus curiae brief granted California District Attorneys Association in support of respondent. |
Oct 21 2005 | Amicus curiae brief filed California District Attorneys Association in support of respondent. Answer is due within twenty days. |
Nov 10 2005 | Response to amicus curiae brief filed appellant {Thompson} responding to California District Attorneys Assoc. |
Feb 8 2006 | Case ordered on calendar March 8, 2006, at 9:00 a.m., in San Francisco |
Feb 21 2006 | Filed: Stipulation to Justice Chin's Participation, filed by Gerald Franklin, counsel for respondent The People "... hereby stipulate and agree to Justice Chin's participation in the case even though he will not be present at oral argument. ..." |
Feb 21 2006 | Filed: Stipulation to Justice Chin's Participation, filed by Richard B. Lennon, counsel for appellant Thompson "... hereby stipulate and agree to Justice Chin's participation in the case even though he will not be present at oral argument. ..." |
Mar 8 2006 | Cause argued and submitted |
Jun 1 2006 | Opinion filed: Judgment reversed Majority opinion by: Baxter, J. Joined by: George, C.J., Kennard, Chin, Moreno, Corrigan, J.J. Dissenting opinion: Werdegar, J. |
Jul 7 2006 | Remittitur issued (criminal case) |
Jul 24 2006 | Received: Receipt for Remittitur from CA2D6 |
Feb 7 2007 | Compensation awarded counsel Atty Steiner |
Briefs | |
May 17 2005 | Opening brief on the merits filed |
Sep 7 2005 | Answer brief on the merits filed |
Sep 27 2005 | Reply brief filed (case fully briefed) |
Oct 21 2005 | Amicus curiae brief filed |
Nov 10 2005 | Response to amicus curiae brief filed |