Patterico's Pontifications


“Truly Frightening” Case Not So Frightening After All

Filed under: Civil Liberties,Court Decisions,Crime — Patterico @ 12:51 am

John Cole links to a news article that says:

Police may enter Californians’ homes without warrants to arrest those suspected of driving under the influence, the California Supreme Court ruled Thursday in a case testing the scope of the Fourth Amendment right to be free from unreasonable searches and seizures.

(Via Psyberian in an e-mail.)

Cole says that the court decision is “truly frightening” and adds:

This should scare the hell out of anyone with half a brain. Welcome to the modern Nanny state- “Just like the STASI, But You Are Safer And We CARE!”

I certainly agree with Cole that the ruling should scare anyone with half a brain. However, those of us with more than half a brain are far less concerned. Here are the facts of the case, from the first paragraph of the opinion:

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).

And allowing police the right to do this is supposed to be some terrible, Nazi-style ruling?


This is a classic case of exigent circumstances. If police had waited for a warrant, the guy’s blood alcohol would have dissipated. Or, he could have claimed that he was drinking at home, which would provide an innocent explanation for any high reading obtained after a warrant was executed.

Contrary to the suggestion of the first line of the news article cited above, the Court makes it clear that police cannot always ignore the warrant requirement in any DUI case. Exigent circumstances must be present. Anyone who gets their nose out of joint over this just doesn’t understand Fourth Amendment law.

20 Responses to ““Truly Frightening” Case Not So Frightening After All”

  1. It is a solid opinion. The Court correctly focused as a first question on probable cause to arrest for DUI as opposed to just probable cause to make the defendant submit to BAC testing. It is also very good guidance for the police on the concept of “escalating probable cause” as their unquestionably reasonable investigation and conversations with the defendant and the roommate, prior to the actual entry and arrest, provided them with more and more evidence that the defendant was drunk. Just the opposite of “STASI” tactics whereby, if the police had just simply barged in and dragged him away, they would have just had the statement of the complainant and the warm hood of the Bronco.

    nk (956ea1)

  2. Sorry. It should read … “more and more evidence that the defendant had been driving drunk”.

    nk (956ea1)

  3. The only aspect of the case that troubles me at all is that the police had not seen him driving and that their action was taken solely on the word of a “concerned citizen.” The notion that a witness to a crime is presumptively trustworthy often makes sense where the police at least know that a crime has actually occurred. Here, the police had to take the citizen’s word not only as to the identity of the offender but also the fact of the crime.

    I seem to recall a common-law rule that for the police to arrest someone for a misdemeanor without a warrant, the crime has to have been committed in the presence of a police officer.

    I wouldn’t have thought that if I called the police and said that I just saw my neighbor drive up roaring drunk and go in his house that they could go into his house without a warrant (or even GET a warrant, for that matter).

    I would have no reservations about that case if the police had witnessed the defendant’s drunken driving.

    KRB (c22273)

  4. Thank you for the post on this Patterico.

    I completely agree with KRB (in #3) on this, except I also agree with an issue that the sole dissenter, Justice Werdegar, pointed out in this case. One of the reasons that the court let the evidence stand was “exigent circumstances.” According to Werdegar,

    There is “always” the possibility that a suspect might destroy evidence, especially in drug and bookmaking cases in which officers routinely obtain warrants to search and make arrests, she said.

    So can’t physical evidence be destroyed in almost every circumstance?

    On the other hand, I see that,

    “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,” Baxter wrote.

    But since I’m not an attorney, I’m not sure if that language means much, if anything.

    Psyberian (dd13d6)

  5. That’s a ridiculous argument by Werdegar.

    In a drug case, if the suspect doesn’t know the cops are coming, he isn’t going to destroy evidence.

    In a DUI case, if the suspect doesn’t know the cops are coming, his body is going to destroy the evidence anyway.

    Patterico (50c3cd)

  6. But Patterico, this is a case where the suspect did know the police were after him. I’m sure that other, similar circumstances would apply.

    Psyberian (dd13d6)

  7. I don’t understand your comment.

    He didn’t know the police were after him until they woke him up. But the evidence was being destroyed even as he slept. That’s my point. In a DUI case time is critical.

    Patterico (50c3cd)

  8. Actually, you have a good point about destroying evidence. In most circumstances, I would imagine, there would be a warrant anyway.

    But in this case, there was little observation by the police. From what I’ve read, they noticed the warm hood of the vehicle and saw him inside the house appearing intoxicated. The rest was the word of a good citizen. So he did know that they were after him. (Actually, I’ve read enough about this that there are inconsistencies in the story depending on what you read, but most of the ones I’ve read say this.)

    At any rate, here is one account:

    The court said a woman found Thompson passed out in a van in her parking space at an apartment complex in July 2003 and decided to follow him when he awakened and drove off. She said he drove dangerously on a freeway and through a residential neighborhood.
    A police officer drove to the home of the van’s owner and found the vehicle parked outside with the hood still warm.
    Two officers went to the door and were denied entry, first by Thompson’s housemate and then by Thompson, whom the officers could see through the open door, staggering and apparently drunk, the court said. The officers then walked in, handcuffed Thompson and conducted a blood test, which showed his blood alcohol at 0.21 percent.

    So assuming this is what really happened, the man knew that the cops wanted him. In similar circumstances, the police could often say that the evidence could be destroyed in the home.

    Psyberian (dd13d6)

  9. Give me an example of a non-DUI situation that would concern you.

    I’ll give you one that would not concern me:

    Say cops see a guy selling drugs on the street in front of his home. The transaction is completed, and the seller puts the baggie with the rest of the dope back in his pocket. The cops roll up, the seller looks the cops in the eye, and runs through his front door and closes it.

    In such a situation, the cops would have every right to bust down his front door without a warrant. It’s black-letter law.

    Patterico (50c3cd)

  10. Yeah…I read this at Cole’s site. The comments were hilarious. Especially this one:

    salvage Says:

    Only in Bush’s America.
    June 2nd, 2006 at 2:06 pm

    Yes….I wondered then how many of the Justices of the California Supreme Court that Bush had the opportunity to appoint.

    But…I’m sure you can understand salvage’s reasoning.

    RLS (0516f0)

  11. Patterico:

    Given your example, what if the cops _don’t_ see the guy dealing drugs, but are called by a neighbor. When they arrive, the dealer is just closing the front door of his house, and the neighbor says he ran in there when a friend yelled from down the road that the cops were coming.

    Still OK for the cops to enter without a warrant, or not?

    Dave (6001a6)

  12. You don’t give a lot of facts. But I would say yes, assuming 1) there is probable cause for the arrest (which the Court found in the DUI case), and 2) the police have a reasonable belief that the suspect is going to get rid of drugs (i.e. the neighbor saw the suspect with drugs or said that the house contains drugs, which the suspect is likely to flush as soon as he gets inside).

    Patterico (50c3cd)

  13. I find this ruling along with many others in war on drugs line of cases a further erosion of our ever dwindilng civil rights. The courts and society have made their priority to thoroughly punishment all offenders in these areas fully without regard to the collateral damage to our system of ciivil liberties.

    This case will become precedent for cops entering houses w/o warrants in damn near every situtation. Cops enering w/o warrants will become the rule not thexception. I realize not all cops are bad and some actually uphold the law but a lot of them see life as black and white, us and them, where the ends justify the means.

    I’m all for getting the bad guy. But I have am also of the mind that letting one or two drunks slide in exchange for a stronger 4th A. is a sacrifice I ‘m willing to live with. Otherwise we will all wake up one day and poof no more Bill of Rights.

    sblawman (86c393)

  14. This case will become precedent for cops entering houses w/o warrants in damn near every situtation. Cops enering w/o warrants will become the rule not thexception.

    Nonsense. Why in the world would that be the case?

    Patterico (50c3cd)

  15. The example Dave gave was a good one.

    I’ll tell you one reason this concerns me. While I was working on a psychology degree, I worked as a mediator to try to keep people out of court. It was then that I realized that it was simple to get someone thrown in jail (although they’ll probably be out in hours or less). All you have to do is just go to the courthouse and fill out a form that a person committed illegal act x and that’s all there is to it. Of course, if you get caught lying about the crime, you could spend some time yourself. But the trouble is, more often than not, you can’t prove a negative. So prove that you didn’t hit someone, attack someone with a pair of salad spoons, whatever. It wouldn’t be very easy to prove most of the time. So I can see how it could easily be abused.

    Psyberian (dd13d6)

  16. sblawman,

    I was not aware that my (or your) civil rights included the right: 1) to drive drunk; 2) to be lucky enough to get home without killing someone or being pulled over; and 3) to get away with it by running into my own (or someone else’s) residence. As a California prosecutor, I can assure you that this ruling will not lead to warrantless entries being the norm (I realize this assurance will not likely satisfy you).

    Regardless, this is not an issue as “one or two drunks” sliding vs. civil rights. This is an issue of reasonableness; the touchstone of all 4th Amendment analysis. Nothing in the opinion changes long standing 4th Amendment principles (i.e. your civil rights).

    Your willingness to let “one or two drunks slide in exchange for a stronger 4th A. is a sacrifice I‘m willing to live with” is an interesting choice of words considering the number of lives taken by DUI drivers.

    David (dc3c34)

  17. in the past, “exigent circumstances” depended upon the police themselves witnessing criminal activity. now any joe blow who wants to have fun with you can report anonymously on a payphone or a cellphone with an anonymous sim card that a drunk driver just pulled up in front of your house and entered.
    the fourth amendment contemplates judicial review of warrant applications. some people here are glad we got rid of this inconvenience. now it’s just one unsworn citizen versus another, and your presumption of innocence and the sanctity of your home against unreasonable, warrantless searches and seizures just went a-glimmering.
    of course, patterico is a prosecutor, and he never met an expanded search/seizure power he didn’t like, have you there buddy?

    assistant devil's advocate (3747e3)

  18. now any joe blow who wants to have fun with you can report anonymously on a payphone or a cellphone with an anonymous sim card that a drunk driver just pulled up in front of your house and entered.

    Wrong-o, my ignorant friend. Cops can’t detain people based on nothing but purely anonymous tips. Florida v. J.L., if memory serves. In this case, the informant was not anonymous. Different situation.

    Patterico (50c3cd)

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