Petition — Welsh v. Wisconsin

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SEP 27 1982

OF Five oF THE CLERK

8a- 546 SUPREME COURT, U.s.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

2, Case No.

EDWARD G. WELSH,

Petitioner,

STATE OF WISCONSIN,

Respondent.

PETITION FOR WRIT OF CERTIORARI

GORDON BREWSTER BALDWIN

Attorney for Petitione:.

Of Counsel:

Archie E. Simonson

* Margaret Ann Satterthwaite

Post Office Address:

The Law School

University of Wisconsin

Madison, Wisconsin 53706

(608) 263-2077

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fo ae hee A

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

Case No.

EDWARD G. WELSH,

Petitioner,

Vv.

STATE OF WISCONSIN,

Respondent.

PETITION FOR WRIT OF CERTIORARI

QUESTIONS PRESENTED FOR REVIEW

Do the Fourth and Fourteenth Amendments prohibit police

from making a non-consensual warrantless night entry into a

person's home to arrest him for a violation of a non-jailable

traffic offense committed outside the presence of the police?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW....ceeeeeceeeecvees 1

OPINIONS BELOW. ..cccccscecccccesccesccsvessessseves 2

JURISDICTION. . cc cccrecceereccsseereeeesesseessssers 2

CONSTITUTIONAL PROVISION INVOLVED....eseeeeeeeveess 2

STATEMENT OF THE CASE... ..seesceveveeess Corre scces 2

REASONS FOR GRANTING THE WRIT....... rr ee 5

CONSLUSION...cccevccccccecserevssesssesssesesesere 7

Tis Das elke s oe eee be ever eae e se sa eesrsoeevesd 100

CASES CITED

Camara v. Municipal Court,

387 U.S. 5235, 536-7 (1967)....ce00% coccces eo 6

Payton V. New York,

in re.) Mie. - eed sss eecee ses ee ogee .s 6

State v. Welsh,

Boe Wig. 319, 321 NW.W.24 248 (1962) ..cceee we 2

STATUTES AND CONSTITUTIONAL PROVISIONS CITED

Wisconsin Statutes,

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28 M5.6. § 2101(c).... “*#* ee ete eens eee eee eee eee

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OPINIONS BELOW .

The decision of the Wisconsin Supreme Court in this case

is reported as State v. Welsh, 108 Wis. 319, 321 N.W.2d 245

(1982) reproduced in the Appendix.

JURISDICTION

Jurisdiction of this Court is inveked pursuant to

28 U.S.C. § 2101(c). The judgment of the Wisconsin Supreme

Court reversing the court of appeals and affirming the circuit

court order was entered July 2, 1982.

CONSTITUTIONAL PROVISION INVOLVED

THE FOURTH AS APPLICABLE TO

STATES BY VIRTUE OF THE FOURTEENTH

"The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized."

STATEMENT OF THE CASE

The basic facts are briefly outlined below. Their essence

is that the Wisconsin Supreme Court has held that city police

can, without a warrant and without establishing consent, enter

a home to arrest a suspect on a driving while intoxicated

charge.

The only issue on which certiorari is sought involves the

warrantless entry into the home. Issues of probable cause to

arrest, or whether the entry was consensual are not presented

to this Court.

The petitioner, Edward Welsh, was arrested without a

warrant at his home on April 24, 1978 between the hours of

9:00p.m. and 9:30 p.m. in the City of Madison, Wisconsin. He

Re age

was issued a citation for operating a motor vehicle while under

the influence of intoxicants, contrary to § 346.63 (1)(a), Wis.

Stats. 1977. He was in bed when the police arrived and after

being arrested and taken to the police station, he refused to

take a breathalyzer test as required by § 343.305(2)(b), Wis.

Stats. 1977. The constitutionality of the underlying arrest

is contested here.

On September 5, 1980, a hearing was held in accordance

with § 343.305(8)(b), Wis. Stat. 1977, to determine whether

the Petitioner's refusal to take the breathalyzer test was

reasonable. At that hearing his attorney argued that the

refusal was reasonable because the arrest was constitutionally

invalid. The circuit court ruled that because the police had

probable cause to arrest, and exigent circumstances existed,

the warrantless arrest was valid. No finding on consent to

enter was made by the circuit court. The court concluded that

the refusal to take the breathalyzer test was unreasonable and

accordingly ordered that the petitioner's operating privileges

be suspended pursuant to § 343.305(9), Wis. Stats. 1977.

At the circuit court hearing regarding the validity of

the arrest three witnesses testified as to the facts leading

to the entry and the arrest: Patricia Welsh, the petitioner's

wife; Richard Daley, one of the arresting police officers; and

Randy Jablonic who observed the petitioner and the petitioner's

car at the scene of the accident.

Jablonic testified that while driving within the City of

Madison at about 8:30 p.m. on April 24, 1978, he saw a car

traveling in front of him operating erratically. The car

veered to the left leaving the road and came to a stop in an

open field or cemetery. According to Jablonic it was raining,

the ground was wet and visibility was poor. Jablonic stopped

aya

at the scene of the accident and asked the driver of another

car to call the police.

The Petitioner approached Jablonic's truck. Jablonic

testified that the Petitioner's walk was very unsteady and that

his speech was very controlled when he asked for a ride home.

Jablonic refused stating that they should wait for help to

arrive. Petitioner, however, left the scene. About 3-5

minutes after the Petitioner left the police arrived.

Madison Police Officer Daley testified that he was dis-

patched to the scene at 8:49 p.m.; and that upon his arrival

he met Jablonic who gave him a description of the incident and

the individual involved. He testified that Jablonic had a de-

finite opinion that the individual was very obviously intox-

icated.

Officer Daley quickly ran a license check and found that

the vehicle was registered to the Petitioner who lived close

by. He testified that he recalled having been called to the

Petitioner's residence a week or two prior to that for an alco-

hol related distrubance for which he had arrested the Peti-

tioner. He proceeded directly to the Petitioner's residence

and arrived within one and one-half minutes.

Officer Daley and another policeman knocked at the door.

Tne Petitioner's step-daughter answered. The officers asked

to speak with the Petitioner. Daley testified that the step-

daughter said something to the effect that the Petitioner had

just stumbled in and opened the door and beckoned them toward

the stairs. According to Daley as he and the other officer

proceeded up the stairs the petitioner's wife appeared from

the kitchen and asked what was going on. They informed her that

there had been an accident and they strongly suspected the

Petitioner was involved and that they wanted to speak to him

because they thought he was probably under the influence of

intoxicants.

Daley testified that on the way upstairs the officers saw

wet and muddy tracks going to the bedroom and in the bedroom

they saw the Petitioner lying naked in bed and muddy pants

immediately next to the bed. They asked the defendant to get

up and put his pants on because they wanted to speak to him,

While speaking with the Petitioner they noticed that the whole

room smelled of alcohol; the Petitioner hed a heavy odor of

alcohol and his speech was slurred. While in the bedroom they

informed the Petitioner that he was under arrest for operating

a motor vehicle while under the influence of intoxicants.

Officer Daley explained that when an arrest is made for oper-

ating under the influence the police must get the person down-

town as soon as possible for a breathalyzer test because alco-

hol dissipates from the body after a certain period of time

and the requirement is that the test be made within two hours

of the violation.

The circuit court found that the officers arrived at the

Petitioner's home within ten minutes after he left the scene

of the accident and held that the arrest was valid because the

police had probable cause and exigent circumstances existed

for entering the defendant's home without a warrant to arrest

him. The Supreme Court of Wisconsin affirmed this holding.

REASONS FOR GRANTING THE WRIT

This Court has never suggested that the Fourth Amendment

allows a warrantless entry into a home to arrest for a non-

jailable offense. The Supreme Court of Wisconsin authorizes

such entries in deciding this case.

A first violation of the Wisconsin driving while intoxi-

cated statute constitutes a civil forfeiture; a second

violation may be a misdemeanor, §346,63 (1); 346.65(2)(a)(1),

and (2), Wis, Stat.1977. Wo evidence in this case indicates

any prior offense under these statutes by petitioner, State

v. Welsh, 106 Wis.2d 319, 342, 342 n. 1 (Abrahamson, J. dis-

senting). The majority opinion of the Wisconsin Supreme Court

found probable cause and exigent circumstances that allowed

entry without a warrant, or without consent.

The decision of the Wisconsin Supreme Court demonstrably

conflicts with this Court's recent decision in Payton v. New

York, 445 U.S. 573, 585 (1980). There this Court reaffirmed

that "the physical entry of the home is the chief evil against

which the wording of the Fourth Amendment is directed." (cita-

tions omitted). That case does not justify entry here. The

State made no showing that a warrant could not readily be

obtained at the time and place needed. The Wisconsin Supreme

Court's majority justified the police entry and arrest on the

basis of fear that evidence of alcohol intake would be lost

if there was a warrant requirement. That Court, therefore,

applied a theory of hot pursuit and asserted that the need to

preserve evidence constituted exigent circumstances justifying

excusal from the warrant rule. The record contains no evidence

on how long it would take to obtain a warrant wit hin the City

of Madison between 9:00 and 9:30 P.M, Police discovered the

petitioner within half an hour after the accident. Presumably

evidence of intoxication, if any, would not be lost for the

hour or so it might take to obtain a warrant.

Reasonableness, the ultimate test of the entry and arrest

here is determined by balancing the need for the arrest and

search as against the invasion that occurs, Camara v. Muni-

cipal Court, 387 U.S. 523, 536-7 (1967).

This Court should grant this petition; issue a writ of

certiorari to the Supreme Court of Wisconsin, and it should

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Pe, ss ces - 5 Nhe stints me

id summarily reverse the decision of the Supreme Court of

Wisconsin.

CONCLUSION

For the above reasons the petition for a writ of certioari a

should be granted. 4

Dated this 24th day of September, 1982

Respectfully submitted,

Me SA

ORDON BREWSTER BALDWIN

Attorney for Petitioner,

Of counsel:

Archie E. Simonson

Margaret Ann Satterthwaite

Post Office Address:

The Law School

University of Wisconsin

Madison, Wisconsin 53706

(608) 263-2077

—

APPENDIX

2) OFFICIAL WISCONSIN REPORTS. 819

State v. Welsh, 108 Wis. 2d 319.

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,

Edward G. WELSH, Defendant-Appellant.

Supreme Court

No. 80-1686. Argued March 1, 1982.—Decided July 2, 1942.

(Reversing 102 Wis. 2d 727, 308 N.W.2d 772.)

Searches and Seizures §33°—acts without warrant—probable

cause.

Evidence was sufficient to establish probable cause to justify

warrantless entry of defendant's home, where evidence included

testimony of eyewitness that defendant was intoxicated, where

defendant left scene of accident and where officer recollected

that he had been involved with defendant in recent alcohol

related disturbance.

Searches and Seizures § 33°—acts without warrant—reliability

of informant.

Citizen who purports to be victim of or to have witnessed crime

ia reliable informant even though his reliability has not there-

tofore been proved or tested.

Automobiles and Other Motor Vehicles §731°—driving under

influence of intoxicant arrantl search of home—ex-

igent circumstances.

Evidence was sufficient to establish exigent circumstances

justifying officer's warrantless entry into defendant's home,

where eyewitness at scene of accident informed officer that

defendant was intoxicated, defendant had left scene of accident

and where officer made prompt attempt to locate defendant

in order to prevent him from returning to his, or another

automobile, where he could have continued to drive in his

condition.

ASRAMAMSON and Herrzanan, JJ,, dissent.

REVIEW of a decision of the Court of Appeals. Re-

versed.

* Bee Callaghban’s Wiscoasia Digest, same tepic aad section number.

JO]

320 OFFICIAL WISCONSIN REPORTS. ([(JuLy

State v. Welsh, 108 Wis. 2d 319.

For the plaintiff-petitioner the cause was argued by

Stephen W. Kleinmaier, assistant attorney general, with

whom on the briefs was Bronson C. La Follette, attorney

general.

For the defendant-appellant there was a brief and oral

argument by Archie E. Simonson of Madison.

WILLIAM G. CALLOW, J. This is a review of a May

26, 1981, decision of the court of appeals vacating an or-

der of Dane County Circuit Judge Mark A. Frankel and

remanding the matter to the circuit court for further

proceedings. We reverse the decision of the court of ap-

peals and affirm the order of the circuit court. The trial

court revoked the defendant's motor vehicle operator's

license for sixty days pursuant to his unreasonable re-

fusal to submit to a breathalyzer test, as required by sec.

343.305 (2) (a), Stats. 1977,' after having been issued a

citation for the operation of a motor vehicle while under

the influence of an intoxicant. Section 346.63(1), Stats.

1977,"

' Section 343.305(2) (a), Stats. 1977 provides that

“Revocation of license on refusal to submit to tests... (2) (a)

If a law enforcement officer has probable cause to believe that a

person has violated s. 346.63(1) or a local ordinance in conformity

therewith, the officer may request the person, prior to arrest and

issuance of a citation, to take a preliminary breath test for the

purpose specified under sub. (1), using a device approved by the

department for the purpose. A person may refuse to take a pre-

liminary breath test without being subject to revocation under

sub. (9) if he or she consents, after arrest, to take a test under

par. (b). Neither the results of the preliminary breath test nor

the fact that it was administered shall be admissible in any action

or proceeding in which it is material to prove that the person was

under the influence of an intoxicant or a controlled substance.” /d.

* Section 346.63(1), Stats. 1977, provides that “[(n)o person may

drive or operate a motor vehicle while under the influence of an

intoxicant or a controlled substance.”

JOR

2) OFFICIAL WISCONSIN REPORTS. 321

Supreme Court

The defendant challenges the officer’s warrantless ar-

rest in his residence as violating the Fourth Amendment

of the United States Constitution and Article I, section 11

of the Wisconsin Constitution.* The circuit court upheld

this warrantless arrest concluding that probable cause to

believe that the defendant had been operating a motor

vehicle while under the influence of an intoxicant, cou-

pled with the existence of exigent circumstances, justi-

fied the officers’ entry into the defendant's residence.

The defendant appealed from this circuit court order, and

a single judge of the court of appeals reversed the trial

court, holding that, although the officers’ warrantless

arrest was unreasonable, thereby violating the Fourth

and Fourteenth Amendments, the absence of a finding

regarding a consensual entry necessitated remanding the

case on that issue. We affirm the findings of the circuit

court, holding that the co-existence of probable cause and

exigent circumstances in this case justifies the warrant-

less arrest and obviates any further discussion concern-

ing the issue of consensual entry.

Prior to resolving the merits of this case, the state

challenges the single-judge ruling of the court of appeals,

contending that this should have been decided by a three-

judge pane’. Section 752.31(2), Stats. 1977, provides a

3 The requirements contained in the Fourth Amendment of the

Federal Constitution are binding against the states through the

Pourteenth Amendment. Further, the provisions of the Fourth

Amendment to the Federal Constitution are identical to those

contained in Article I, sec. 11 of the Wisconsin Constitution. Both

provide that:

“The right of the people to be securw in their persons, houses, pa-

pers, and effects, against unreasonable searches and seizures, shal!

not be violated, and no Warrants shal! issue, but upon probable

cause, supported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or things to be

seized.” United States Constitution Amendment IV; see Wisconsin

Constitution, Article I, see. 11.

4/03

$22 OFFICIAL WISCONSIN REPORTS, [JuLy

State v. Welsh, 108 Wis. 2d 319.

categorization of cases subject to review by a single

court of appeals judge, as opposed to a three-judge pan-

el.* This dispute focuses on whether the defendant's un-

reasonable refusal to submit to a breathalyzer test pur-

suant to sec. 343.305 (2) (a), Stats. 1977, falls within the

purview of sec. 752.31(2)(c), Stats. 1977, authorizing a

single-judge appeal in cases involving violations of traf-

fic regulations. The state contends that the statutory

penalty imposed for violation of a traffic regulation, as

defined in sec. 345.20(1) (a), Stats. 1977, is a forfeiture.

According to sec. 288.01, Stats. 1977, however, a forfei-

ture is defined as “any penalty, in money or goods” and

the penalty pursuant to violating sec. 343.305, Stats.

1977 is a suspension of operating privileges. Consequent-

ly, the state argues that a suspension is not a forfeiture

and therefore is not included within the parameters es-

tablished in sec. 752.31(2), Stats. 1977. The defendant's

timely notice of appeal conferring jurisdiction to the

court of appeals vitiates the need to determine whether

* Section 752.31(1), (2), (3), Stats. 1977 provides:

“152.31 Disposition of cases. (1) Except as otherwise provided

in this section, the court of appeals shall sit in panels of 3 judges

to dispose of cases on their merits.

"(2) Appeals to the court of appeals in the following types of

cases shal! be heard as specified in sub. (3):

“(a) Cases under ch. 299.

“(b) Municipal ordinance violation cases.

“(e) Cases involving violations of traffic regulations, as defined

im s. $45.20(1) (a).

“(d) Cases under ch. 51.

“(e) Cases under ch. 48.

“(f) Misdemeanors.

“(3) A case specified under sub. (2) shal! be heard by one court

appeals judge, except that any party on appeal may move in

iting to the chief judge of the court of appeals that the case Le

by a 3-judge panel. The chief judge may grant or deny

request ex parte. Any appeal which is heard by « single court

of appeals judge shall be heard in the county where the case or ac-

tion originated if any party so requests.”

ja4

2) OFFICIAL WISCONSIN REPORTS. 323

Supreme Court

sec. 343.305(2) (a), Stats. 1977, is a traffic regulation.

For if the court of appeals in its exercise of jurisdiction

erroneously assigns this case to a single judge rather

than to a panel, this alleged error, and we need not rule

whether the court of appeals erred in this case, was

waived when neither the state nor the defendant inter-

posed a timely objection. Although resolving this issue

is unnecessary in the present case, it is instructive to note

that sec. 752.31(2) (c), Stats., 1979-1980, was recently

amended to include license suspension “cases under sec.

343.305," thereby expressly incorporating these cases

‘ within the parameters of sec. 752.31(2) (c), authorizing

a single judge appeal. See sec. 2, ch. 152, Laws of 1981

(effective March 31, 1982). :

The factyal sequence underlying this dispute can be

summarized through the testimony of the sole witness,

Randy Jablonic. On the evening of April 24, 1978, Jab-

lonic, a University of Wisconsin rowing coach, was driv-

ing alone in his truck. It was raining. He noticed that

the driver of the automobile ahead of him was experi-

encing difficulty in operating his vehicle. In addition to

the automobile’s erratic speed, it was moving from side

to side, crossing into the opposing lane, barely missing a

road sign, a median strip, and the oncoming traffic. The

vehicle ultimately left the road entirely and drove into a

field where it either became stuck or stalled.

Jablonic, concerned that the car might return to the

road and fearful “[b)ecause I realized (he) would prob-

ably kill somebody” remained at the scene blocking the

car to be certain that the car did not return to the high-

way. A motorist stopped and Jablonic requested her to

alert the police. An officer arrived at the scene shortly

thereafter.

Prior to the officer’s arrival, however, the dri»*» left

the automobile in the field and approached Jabiunic’s

truck. Jablonic testified that the driver asked him for a

{OS

324 OFFICIAL WISCONSIN REPORTS. [Juty

State v. Welsh, 108 Wis. 2d 319.

ride home but Jablonic replied that they should wait for

assistance in removing or repairing the car, rather than

leaving it in the field. At this point the driver became

alarmed and “broke into a very slurred conversation—

‘you wouldn't get your cops’—or something it was very

insecure and not very controlled conversation.” The driv-

er then left Jablonic and headed back across the field

abandoning the automobile and departing from the scene

of the accident.

The police arrived “practically immediately upon, .. .

his departure” and spoke with Jablonic who had remained

at the scene. Jablonic responded to the officer's inquiry

by describing his observations of the automobile and its

driver. Jablonic told the officer that he believed that the

driver “was very inebriated or very sick or not very

much in possession of his faculties or ability to perform.”

When asked at trial what formed the basis of his opin-

jon that the defendant was inebriated, he testified “. . .

the erratic motion of the car, and then the staggering

and slurred speech that (the driver] exhibited when he

was trying to talk” constituted the basis upon which he

formed his conclusion that the driver was intoxicated. He

further described the driver's walk as unsteady and un-

sure. He stated that when he spoke with the driver at

the roadside he had remained in his truck. Consequently,

he declared that he had “no opportunity to smell the

(driver's) breath.” Jablonic further testified that he com-

monly “see(s) many inebriated people, unfortunately,”

demonstrating his familiarity with the symptons of in-

toxication. Although Jablonic stated that “he [the driv-

er) was very inebriated or very sick or not very much

in possession of his faculties or ability to perform,” this

statement, when considered within the context of the en-

tire record, demonstrates the propriety of the trial judge's

conclusion that Jablonic conveyed the definite impression

that the driver was intoxicated. Jablonic’s reference to

2) OFFICIAL WISCONSIN REPORTS. 325

Supreme Court

illness was merely a remote possibility which provided an

alternative, more charitable explanation—illness—to ac-

count for his erratic driving, unsteady movements, and

slurred speech. The record supports the trial judge's rul-

ing that the officer had probable cause to believe that

the driver was intoxicated.

At the scene of the accident the officer ran a license

check to determine the vehicle owner’s identity. Although

the officer could not conclude that the owner of the aban-

doned automobile was necessarily its driver, he did cor-

rectly reca]] that he was involved in the arrest of the own-

er in an alcohol-related disturbance within two weeks

prior to this accident. The officer's recollection was suf-

ficiently pertinent to provide additional evidence to sup-

port the existence of probable cause.

Acting upon his collective knowledge of the situation,

the officer proceeded immediately to the defendant's resi-

dence which was located near the scene of the accident.

Attempting to confirm his belief that the defendant had,

in fact, been driving his abandoned vehicle while under

the influence of an intoxicant, the officer, arriving at the

defendant's residence, asked the defendant's stepdaugh-

ter if the defendant was at home. The officer testified

that she replied, he had “just stumbled in... ." “He is

upstairs, and motioned that way—towards the stairs, al-

lowing us to pass.” Proceeding up the staircase, the of-

ficer encountered the defendant's wife. He testified that

she asked:

“*What is going on,’ . . . again, we explained there had

been an accident, .. . And we would like to speak with

him because we thought he was probably under the in-

fluence of an intoricant. And she, at that point, also

gave her consent for us to go up, because she said, ‘Yes,

he is in bed. He just got into bed. And something has to

be done,’ referring to the fact that she recognized me

from the earlier—I assumed she recognized me from the

{07

—

326 OFFICIAL WISCONSIN REPORTS. ([Juty

State v. Welsh, 108 Wis. 2d 319.

earlier case, and was, I think, saying that she was con-

cerned about his alcoholic problem. And she indicated,

‘Something has to be done,’ and motioned us to the bed-

room.”” (Emphasis added).

Affirming the trial court's dual finding of probable cause

and exigent circumstances vitiates the need to remand

this case to the circuit court on the issue of consensual

entry, as was ordered by the court of appeals.

The issue in the present case addresses the delicate in-

terrelationship between the individual's right to privacy

and the governmental responsibility to enforce the law

in a manner which serves the public interest. To prevail

in this case, the state must prove the co-existence of prob-

able cause® and exigent circumstances, justifying the of-

ficer’s conduct at the defendant's residence. We hold

that there was ample evidence supporting the trial

court’s ruling that the officer's entry was justified on

the basis of both probable cause and exigent circum-

345.22, Stats. 1977, This statute only requires probable or rea-

sonable cause to effectuate a warrantless arrest.

Section 345.22, Stats. 1977, provides:

“345.22 Authority to arrest without a warrant. A person may

be arrested without a warrant for the violation of a traffic regu-

lation if the traffic officer has reasonable grounds to believe thet

the person is violating or has violated a traffic regulation.”

The “reasonable grounds to believe” language in sec. 345.22 is

synonomous with the constitutional standard of probable cause.

Johnson v, State, 75 Wis. 2d 344, 348, 249 N.W.2d 693 (1977).

Consequently, our reference to probable cause in the present case

shall be interpreted as being used interchangeably with and meet-

ing the statutory standard of “reasonable grounds to believe.”

Section 345.22, Stats. 1977.

Section 345.22 only requires probable cause in its authorization

of @ warrantless arrest for violation of a traffic regulation. The

instant case, however, meets “he statutory probable cause standard

in addition to meeting the case law requirements of probabie cause

coupled with exigent circumstances.

2) OFFICIAL WISCONSIN REPORTS, 327

Supreme Court

stances. Entry to effect a warrantless arrest in a resi-

dence is subject to the limitations imposed by both the

United States and the Wisconsin Constitutions. U.S.

Const. amend, IV; Wis. Const. art, I, sec. 11. The indi-

vidual’s right to privacy in the home is a fundamental

freedom protecting the individual from unreasonable gov-

ernmental interference; however, this fundamental right

is not absolute. It is subject to limited but well-estab-

lished exceptions where the public interest requires that

proper authorities may impinge upon the individual's

right to privacy. In these instances of compelling public

need, the government bears the burden of proving that

the public interest supersedes the individual's right to

privacy, Consequently, to insure the validity of a war-

rentless arrest, the state must prove probable cause,

coupled with exigent circumstances. E.g., Dunaway v.

New York, 442 U.S. 200 (1979) ; Henry v. United States,

361 U.S. 98, 102 (1969) ; State v. Paszek, 50 Wis, 2d 619,

184 N.W.2d 836 (1971); see Payton v. New York, 445

U.S. 573, 575, 583-88 (1980) [citing Laasch v. State, 84

Wis. 2d 587, 267 N.W.2d 278 (1978) ].*

* Both Payton and Laasch are Fourth Amendment cases, provid-

ing fundamental support for our position in the present case. Pay-

ton v. New York, 445 U.S. 5673 (1980); Laasch v. State, 84 Wis, 2d

587, 267 N.W.2d 278 (1978). Although a cursory reading of Pay-

ton suggests that it is unconstitutional for police officers, having

probable cause, to enter a private residence without a warrant, it

is clearly distinguishable from the case at bar because, unlike the

present case, Payton expressly disavows a finding of exigert cir-

cumstances. Payton stutes that,

“[ajithough it is arguable that the warrantless entry to effect

Payton's arrest might have been justified by exigent circumstances,

none of the New York courts relied on any such justification.

The (New York court) treated both Payton's and Riddick’s cases

as involving routine arrests in which there was ample time to ob-

tain a warrant, and we wilj do the same. Accordingly, we have no

occasion to consider the sort of emergency or dangerous situation,

oe |

C—O Se ee SE ee

328 OFFICIAL WISCONSIN REPORTS. [JULY

State v. Welsh, 108 Wis. 2d 319.

This dual finding is subject to numerous and diverse

interpretations. The common feature underlying all

search and seizure interpretations, however, is the rea-

sonableness of the government's intrusion when consid-

ered within the context of the totality of the circum-

stances. See; State v. Cheers, 102 Wis, 2d 367, 388, 306

N.W.2d 676 (1981); Bies v. State, 76 Wis. 2d 457, 468,

251 N.W.2d 461 (1977). The United States Supreme

Court has addressed the concepts suggestive of analysis

in determining the reasonableness of the governmental

interference with the individual's Fourth Amendment

rights. “Consideration of the constitutionality of such

seizures involves a weighing of the gravity of the public

concerns served by the seizure, the degree to which the

seizure advances the public interest, and the severity

of the interference with individual liberty.” Brown v.

Texas, 443 U.S. 47, 50-51 (1979). Moreover “ ‘(w) heth-

er an inquiry is considered reasonable must depend

upon the facts in each case and must turn on the

application of what is essentially an indeterminate and

flexible test.’ Bies v. State, 76 Wis. 2d at 466 (quoting

described in our casce as ‘exigent circumstances,’ that would juati-

fy @ warrantless entry into a home for the purpose of either arrest

or search.” 445 U.S. at 583 (footnote omitted) (emphasis added).

Likewise, the defendant's warrantiess arrest in Laasch v. State

occurred absent a showing of exigent circumstances. In Laasch,

the issue before this Court was “whether, in the absence of any

exigent circumstances, a police officer may enter a suspect's

home without consent in order to make a warrantless arrest.” 84

Wis, 2d at 593 (emphasis added). Admittedly of leas significance

than the absence of exigency, the arresting officers in Laasch

were arguably afforded ample time to obtain a warrant, as

there was a thirteen-day interval between the defendant's offense

and her arrest. /d. at 588-89.

Consequently, the time lapse and the absence of exigent circum-

stances in both Payton and Laasch \imit their applicability to the

present case. In this case, we hold that the existence of exigent

circumstances contributes to our justification of Welsh's arrest.

1/1?

2) OFFICIAL WISCONSIN REPORTS. 329

Supreme Court

Browne v. State, 24 Wis. 2d 491, 5607, 129 N.W.2d 175

(1964) ). Although the State must prove the existence of

both probable cause and exigent circumstances, negating

any implication of adherence to a mere balancing test,

the progeny of Fourth Amendment case law demon-

strates that reasonableness occupies a prominent posi-

tion in search and seizure analysis. Exigent circum-

stances and particularly probable cause, are not suscep-

tible to stringently mechanical definitions. Frequently,

case law has offered guidance through example rather

than by definition. Consequently, the particularities and

peculiarities of a given case are considered in the context

of reasonableness. Accordingly, thorough analysis seeks

to ascertain whether the case, in its entirety, while meet-

ing the dua] standards of probable cause and exigency,

veritably accommodates this context of reasonableness.

I, PROBABLE CAUSE

The probable cause standard required to arrest dictates

that quantum of evidence which would lead a reasonable

police officer to believe that the defendant probably com-

mitted the offense. The evidence must show that there is

more than a possibility or suspicion that the defendant

committed the offense. The evidence need not reach the

level of proof beyond a reasonable doubt or even that

guilt is more likely than not. State v. Paszek, 50 Wis. 2d

at 624-25. In State v. Paszek, 50 Wis, 2d at 624-25, we

described probable cause as follows:

“Probable cause to arrest refers to that quantum of

evidence which would lead a reasonable police officer to

believe that the defendant probably committed a crime.

It is not necessary that the evidence giving rise to such

probable cause be sufficient to prove guilt beyond a rea-

sonable doubt, nor must it be sufficient to prove that guilt

is more probable than not. It is only necessary that the

//¢

330 OFFICIAL WISCONSIN REPORTS. [Juty

State v. Welsh, 108 Wis. 2d 319.

information lead a reasonable officer to believe that guilt

ig more than a possibility, and it is well established that

the belief may be predicated in part upon hearsay infor-

mation. The quantum of information which constitutes

probable cause to arrest must be measured by the facts

of the particular case. Probable cause is defined in Drap-

er v. United States, supra, p. 313, as:

“**Tn dealing with probable cause, ... as the very

name implies, we deal with probabilities. These are not

technical; they are the factual and practical considera-

tions of everyday life on which reasonable and prudent

men, not legal technicians act.” Probable cause exists

where “the facts and circumstances within [the arrest-

=e officers’) knowledge and of which they had reason-

ably trustworthy information [are) sufficient in them-

selves to warrant a man of reasonable caution in the be-

lief that” an offense has been or is being committed.

Carroll v. United States, 267 U.S. 132."'" State v. Pas-

zek, 50 Wis. 2d at 624-25 (citations omitted).

To effectuate a warrantless, nonconsensual entry into the

residence, in addition to exigent circumstances the offi-

cers had to have probable cause to believe that the de-

fendant had committed the offense of driving while un-

der the influence of an intoxicant at the time they en-

tered the home.

(1)

Examination of the record demonstrates the existence

of probable cause, satisfying the first requisite of the

two-pronged test necessary to justify the officer's war-

rantless entry and arrest of the defendant. In this case,

the officer had a substantial amount of reliable informa-

tion, indicating to a reasonable police officer that the

defendant had probably violated the statute prohibiting

driving while under the influence of an intoxicant. See

secs. 345.22 ; 346.63 (1), Stats. 1977.

[2]

Arriving at the scene of the accident the officer was

met by Jablonic, the sole witness to the driver's conduct.

S12

2) OFFICIAL WISCONSIN REPORTS. 331

Supreme Court

There is nothing in the record which challenges the reli-

ability of either his observations or his statements to the

officer. Adhering to the standard for reliahility estab-

lished in State v. Cheers, we held

“* “that a valid arrest without a warrant may be made

solely by reason of information communicated by a reli-

able informant. . . . A citizen who purports to be a vic-

tim of or to have witnessed a crime is a reliable inform-

ant even though his reliability has not theretofore been

proved or tested. . . . The rationale underlying this prin-

ciple is that such a person, as the observer of criminal

activity, acts openly in aid of law enforcement when he

reports the crime to the police.”’" 102 Wis, 2d at 395-

96. (emphasis added) (emphasis in original omitted)

(quoting State v. Paszek, 50 Wis. 2d at 631).

Consequently, Jablonic’s information satisfies both

prongs of the Cheers test for reliability.

In the Cheers case we discusse. an additional “ ‘factor

to be considered in determining whether probable cause

exists,’”’ namely, that the defendant’s ‘conduct and re-

treat or ‘flight’ from the police officers’ show of authori-

ty immediately prior to the time of his arrest certainly

constitutes evidence of consciousness of guilt.” State v.

Cheers, .02 Wis. 2d at 391. The defendant's statements,

as well as his immediate retreat from the scene in fleeing

to his home at the mention of police o/ficers, clearly “con-

stitutes evidence of consciousness of guilt” and is an ad-

ditional factor buttressing our conclusion that the trial

court properly found the existence of probable cause.

Jablonic told the officer at the scene of the accident

that the officer had arrived “practically immediately

upon [the driver's) departure.” The officer's license

check identified the owner of the vehicle. As we have

noted, ownership does not necessarily indicate the driv-

er’s identity; however, the officer correctly recalled his

involvement in the recent arrest of the owner in an al-

//.3

~~ ye owe we +

———- -_-«

——— oe

“=

332 OFFICIAL WISCONSIN REPORTS. [Jury

State v. Welsh, 108 Wis. 2d 319.

cohol-related dispute. Jablonic did not give a detailed de-

scription to the officer of the driver's physical features,

but he did state that the driver was a man wearing wet

clothing. This information, coupled with Jablonic’s ob-

servations of the defendant's erratic driving patterns

and his personal conduct, further supports the trial

court’s holding of probable cause.

Acting upon his collective knowledge of the situation,

the officer proceeded immediately to the defendant's res-

idence and was told that the defendant “had just stum-

bled in.” While the officer, prior to his arrival at the

house, had probable cause to believe that the defendant

was the driver of the abandoned automobile, the defend-

ant’s stepdaughter’s statement provided additional evi-

dence in support of the proposition that the defendant

was the driver because she said he had stumbled in only

moments before the officer had arrived.

The word “stumbled” buttressed the witness's belief

that the defendant was intoxicated. The fact that the

defendant had just returned home on this rainy night

supports the officer's belief that the defendant was the

driver of his just abandoned car. The officer believed

that he had probable cause, declaring that he “thought

(the driver] was probably under the influence of an in-

toxicant.”

Although the defendant contends that the officer pro-

ceeded to the residence to determine whether he had suf-

ficient evidence to establish probable cause to enter and

arrest the defendant, we do not find this contention per-

suasive. The officer, acting upon Jablonic’s observations,

coupled with his own accurate recollection of his involve-

ment in the arrest of the defendant in a recent alcohol-

related disturbance, had probable cause when he proceed-

ed to the residence. The officer’s conversation with the

defendant's stepdaughter before entering the home pro-

vided further evidence establishing the existence of prob-

able cause.

//4

2) OFFICIAL WISCONSIN REPORTS. $33

Supreme Court

Scrutiny of the record, in its entirety, indicates that

the officer had probable cause before he entered the de-

fendant's residence. Although the officer may not have

been absolutely certain that the defendant was driving

while under the influence of an intoxicant, absolute cer-

tainty is not the standard employed in determining the

existence of probable cause.

The officer's conversation with the defendant's step-

daughter before entering the home provided further evi-

dence establishing the existence of probable cause. The

officer testified that,

“. , , it was my mental intent to go in the house and de-

termine if he was in his bedroom, and what condition he

was in, and whether or not he had anything to drink pri-

or to leavin where the accident or the incident took

lace, until the time he got into bed. It was my intent to

nvestigate it up to that point and make a determination.”

The defendant argues that this statement demonstrates

that the officer did not believe he had probable cause

and was going to the defendant's bedroom solely to in-

vestigate. The officer's statement, when considered

along with his declaration that the defendant “was prob-

ably under the influence of an intoxicant,” demonstrates

that the investigating statement is not being read by the

defendant in the context of the entire record. The offi-

cer, correctly believing that he had probable cause, mere-

ly recognized that he was not absolutely positive that the

defendant had been operating his automobile while under

the influence of an intoxicant. The defendant could have

been drinking after he returned to his home, thereby ren-

dering the results of a blood alcohol test meaningless.

Moreover, if the defendant had been ill, rather than in.

toxicated, the officer would have changed his original

conclusion on which he had predicated the existence of

probable cause. Consequently, the officer's statement

merely acknowledged that he was not absolutely certain

s4+S

834 OFFICIAL WISCONSIN REPORTS. ([JuLy

State v. Welsh, 108 Wis, 2d 319,

that the defendant was driving while under the influence

of an intoxicant, and prior to arresting the defendant, he

was willing to reconsider his initial conclusion if neces-

sary. A synthesis of these facts negates the possibility

that the officer only had a mere suspicion that the de-

fendant was driving while under the influence of an in-

toxicant in violation of sec. $46.63(1), Stats. 1977.

The foregoing evidence, when myopically parsed, may

not individually support a finding of probable cause.

When examined collectively, however, it unquestionably

indicates “that quantum of evidence which would lead a

reasonable police officer to believe that the defendant

(driver) probably [violated the statute prohibiting driv-

ing while under the influence of an intoxicant)."” State

v. Cheers, 102 Wis. 2d at 386; see Henry v. United

States, supra; secs. $45.22 and 346.63(1), Stats. 1977.

The evidence in this case clearly demonstrates that the

trial court was correct in ruling that the state had met its

burden.

In considering the governmental interest, it is appro-

priate to note that driving under the influence is a perva-

sive problem of substantial proportion. In Wisconsin in

1981, there was a 5 percent increase in drunken driving

convictions from 1980." Further, approximately 50 per-

? Consequently, Welsh meets the probable cause standard artic-

ulated in both the majority and dissenting opinions in State v.

Cheers, 102 Wis, 2d 367, 386, 306 N.W.2d 676 (1981); /d. at 406,

408 (Abrahamson, J., dissenting).

® Wisconsin Department of Transportation figures show that in

1981 there were 32,506 convictions for drunken driving. Drunken

driving statistics covering years prior to 1981 have been published

in annual reports entitled, Anderson, Wisconsin Accident Facts

(prepared by the Traffic Accident Data Section of the Division

of Motor Vehicles, Department of Transportation [hereinafter

Wisconsin Accident Facts)),

In Wisconsin in 1980, there were 30,409 convictions for drunken

driving. Wisconsin Aceident Facts 16-17 (1980).

//@

2) OFFICIAL WISCONSIN REPORTS. 335

Supreme Court

cent of all drivers killed in Wisconsin were driving while

legally intoxicated.* The increasing number of fatalities

caused by drunken drivers has aroused state legislatures

to adopt stricter penalties in the forms of substantial

fines, imprisonment, and license suspensions to punish

those who violate the laws prohibiting driving while un-

der the influence of an intoxicant. '®

*In 1980, 583 drivers were killed. Of these drivers, 470 were

tested for blood aleohol content, and 269 were found to be legally

intoxicated, having a minimum blood alcohol content of .10 per-

cent. Wisconsin Accident Facts 1 (1981). Similarly in 1978, 576

drivers were killed; while 226 of the 448 tested were found to be

legally intoxicated. Wisconsin Accident Facts 1 (1979).

'© See, 967.055, Stats., created by Chapter 20, Laws of 1981,

provides:

“See, 967.085 Dismissing or amending charges; operating a mo-

tor vehicle, intoxicant of controlled substance, (1) INTENT. The

legislature intends to encourage the vigorous prosecution of of-

fenses concerning the operation of motor vehicles by persons under

the influence of an intoxicant, or a controlled substance or both,

“(2) Dismissing om AMENDING CHaRrce. Notwithstanding 1.

971.29, if the prosecutor seeks to dismiss or amend a charge under

s. 346.63(1) or a local ordinance in conformity therewith, or s.

346.63(2) or 940,25 or s, 940.09 where the offense involved the

use of a vehicle or an improper refusal! under s. 343.305, the pros-

ecutor shall apply to the court. The application shall state the rea-

sona for the proposed amendment or dismissal. The court may ap-

prove the application only if the court finds that the proposed

amendment or dismissal is consistent with the public's interest in

deterring the operation of motor vehicles by persons who are un-

der the influence of an intoxicant or both.”

See Hammer, The New OMVWI Law: Wisconein Changes /te

Approach to the Problem of Drinking and Driving, 55 Wis. B. Bull.

9 (April, 1982); ¢g., sec, 346,63(1), Stats., repealed and recreat-

ed by Chapter 20, Laws of 1981; sec, 346.65(2), Stats, repealed

and recreated by Chapter 20, Laws of 1981; see also Hammer, The

New OMVW!/ Law: Wisconsin Changes /ts Approach to the Prod.

lem of Drinking and Driving, 56 Wis. B. Bull. 15, 17 (May, 1982).

4/77

336 OFFICIAL WISCONSIN REPORTS. ([Juty

State v, Welsh, 108 Wis, 2d 319.

Il. EXIGENT CIRCUMSTANCES

(3)

In addition to the existence of probable cause, accom-

panying proof of exigent circumstances must be shi wn in

order to justify this warrantless entry. Proof of exigen-

cy vitiates the need for a warrant under those circum-

stances when obtaining a warrant could frustrate the ar-

rest. An analysis of the facts demonstrates that, in this

case, exigent circumstances justified this officer's war-

rantless entry to effect the arrest of the defendant.

Frequently, proof that the officer is in hot pursuit of

the suspect constitutes exigency. The hot pursuit doc-

trine evolved to encompass situations where time was of

the essence. In other words, when requiring the pclice

to obtain a warrant would constitute undue delay, the

hot pursuit doctrine is applicable. In this case, time was

of the essence. The inherent nature of the offense de-

manded the suspect's immediate apprehension to accom-

modate the dictates of the blood alcohol test statute. Sec-

tion 343.305 (2) (a), Stats. 1977. In order for the officer

to enforce the statutory requisites, the situation demand-

ed his immediate search for and pursuit of the suspect.

The defendant, fearful of the officer's impending ar-

rival and perhaps recognizing the possibility of being

requested to submit to a blood alcoho! test, left the

scene of the accident upon discovering that the officer

had been summoned. Fleeing to his home, in an attempt

to avoid a confrontation with the officer, the defendant's

hasty departure resulted in the abandonment of his

car. If the officer had retreated and sought to obtain a

warrant, rather than immediately pursuing and arrest-

ing the suspect, the requirements of the blood alcohol

statutes would have been frustrated.

The imminent threat to safety doctrine also constitutes

exigent circumstances. The sole purpose of the blood al-

2) OFFICIAL WISCONSIN REPORTS. 337

Supreme Court

cohol test is to facilitate prosecution of those driving

while under the influence of an intoxicant. See sec. 343.-

305(2) (a) and 346.63(1), Stats. 1977. Further, sec.

$45.24, Stats. 1977, provides that a person arrested for

driving while under the influence of an intoxicant “may

not be released until four hours have elapsed.”'' This

severe treatment is dramatic evidence of the legislature's

intent and recognition of the need to protect the public

from drunken drivers. Undoubtedly, this provision was

enacted to prevent drunken drivers from returning to

the road while intoxicated. Presumably, this four-hour

statutory limitation sought to provide an adequate time

allowance for the arrested intoxicant’s blood alcohol con-

tent to metabolize to a safer level, equal to or less than .05

percent. Restraining those drivers who pose a danger to

themselves ‘and the public for the four-hour statutory

period constitutes a preventive measure, designed to pro-

mote public safety.

The officer concluded that he had probable cause to be-

lieve that the defendant had been operating a motor ve-

hicle while under the influence of an intoxicant. Accord-

ingly, the situation demanded the officer's prompt at-

tempt to locate the defendant. An arrest would prevent

the driver from returning to his, or another automobile,

where he could have continued to drive in his current

state, posing a danger to himself and the public. Conse-

quently, the nature of this offense, coupled with the po-

'! Section 345.24, Stats. 1977, provides in its entirety:

“345.24 Officer's action after arrest for driving under influence

of intoxicant. A person arrested under s. 346.63 or an ordinance

in conformity therewith for operating a motor vehicle while un-

der the influence of an intoxicant may not be released until 4

hours have elapsed from the time of his or her arrest or uniess «

chemical test administered under s. 343.305(2)(b) shows that

there is .05% or less by weight of alcohol in the person's blood, but

the person may be released to his or her attorney, spouse, relative

or other responsible adult at any time after arrest.”

//9

333 OFFICIAL WISCONSIN REPORTS. (JULY

State v. Welsh, 108 Wis. 2d 319.

tential threat to the public safety, satisfied the exigent

circumstances test pursuant to the imminent threat to

safety doctrine.

An equally persuasive argument is the probable de-

struction of evidence. This is a model case demonstrat-

ing the urgency involved in arresting the suspect in or-

der to preserve evidence of the statutory violation.

“Sometimes the nature of the evidence will be such that

it will soon disappear of its own accord.” 2 W. LaFave,

Search and Seizure, sec. 6.5 at 448 (1978). “Blood rap-

idly metabolizes alcohol after a person ceases drinking;

thus creating an exigent situation.” State v. Bentley, 92

Wis. 2d 860, 864, 286 N.W.2d 153 (Ct. App. 1979).

Without an immediate blood alcoho! test, highly reliable

and persuasive evidence facilitating the state's proof of

the defendant's alleged violation of sec. 346.63(1), Stats.

1977, would be destroyed. See sec. 343.305 (2) (a), Stats.

1977. Accordingly, the facts of this case adhere to the

presumption favoring warrantless arrests which are a re-

sult “of an ongoing investigation in the field,” rather

than an arrest that had been planned. W. LaFave, supra,

sec, 6.1 at 391.'*

‘2 Professor LaFave, a preeminent authority on the Fourth

Amendment, distinguished a finding of exigency in cases involving

planned arrests as opposed to those relating to an ongoing in-

vestigation in the field:

“A ‘planned’ arrest is one which is made after a criminal inves-

tigation has been fully completed at another location and the po-

lice make a deliberate decision to go to a certain place, either the

arrestee’s home or some other premises where he is believed to be,

in order to take him into custody... . Courts have understandably

been reluctant to accept police claims of exigent circumstances in

these situations, for it ordinarily appears that whatever exigencies

thereafter arose were foreseeable at the time the arrest decision

was made, when a warrant could have readily been obtained.” W.

LaFave, eupra, sec. 6.1 at 391.

“On the other hand, when the occasion for arrest arises while

the police are already out in the field investigating the prior or

/20O

2) OFFICIAL WISCONSIN REPORTS. 339

Supreme Court

In summary, we conclude that this situation did not

afford the officer ample time in which ‘o obtain a war-

rant. Further, the record demonstrates that the officer's

conduct was reasonable within the context of the sur-

rounding circumstances. Accordingly, we affirm the

circuit court's holding, finding the existence of both prob-

able cause and exigent circumstances in the present case.

By the Court.—The decision of the court of appeals

is reversed.

Cect, J., took no part.

SHIRLEY S. ABRAHAMSON, J. (dissenting). Asa

result of the decision in this case, if a witness reports to

the police that:

(1) a few moments ago, on this dark, rainy night he

saw a car being driven erratically into a field;

(2) he observed and spoke with the driver of the car

but does not know the name of the driver;

(3) the driver staggered and had slurred speech but

that the witness had no opportunity to smell any alcohol

on the driver's breath;

(4) the driver was either very inebriated or very

sick; and

(5) there was no damage to any person or any prop-

erty;

then the police officers, relying on a statute allowing an

officer to arrest a person without a warrant for violating

a civil traffic regulation (a civil, not a criminal offense)

ongoing conduct which is the basis for the arrest, there should be a

far greater reluctance to fault the police for not having an ar-

rest warrant. Here, the presumption should be in favor of a war-

rantiess arrest rather than againet it, as the probabilities are high

that it is not feasible for the police to delay the arrest while one

of their number leaves the area, finds a magistrate and obtains a

Warrant, and then returns with it.” /d. at 392 (emphasis added)

(footnote omitted).

/R/

340 OFFICIAL WISCONSIN REPORTS. [Jury

State v. Welsh, 108 Wis. 2d 319. Dissent.

committed outside his presence, after checking to find

that the title to the car is in your name, may, without

your consent and without having a search warrant or

arrest warrant issued by a judicial officer:

(1) goto your home at night;

(2) enter your home;

(3) climb the stairs to your second-floor bedroom;

(4) look around your bedroom to see if the clothes

you took off match the description of the clothes worn

by the driver of the car; and

(5) ask you, as you lie naked in your bed, to get out of

bed so that the officers can determine whether you are

intoxicated.

I dissent because I conclude that this warrantless in-

vasion into your privacy in your home to investigate

whether you violated a civil traffic statute contravenes

sec. 11, Art. I, of the Wisconsin constitution and the

fourth amendment to the federal constitution which guar-

antee ‘‘[t)he right of the people to be secure in their

persons, houses, papers, and effects against unreasonable

searches and seizures... .”

The essence of the fourth amendment is that a judicial

officer with the power to issue a warrant, not a police-

man or government agent, decides whether the govern-

ment can enter your home without your consent. As

Justice Jackson so eloquently stated :

“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 ple's homes secure only in the

discretion of police officers. .. . When the right of pri-

vacy must yur! yield to the right of search is, as

a rule, to be decided by a judicial officer, not by a police

man or government enforcement agent.” Johnson v.

United States, 333 U.S. 10, 14 (1948).

/2AA

2) OFFICIAL WISCONSIN REPORTS. $41

Supreme Court

In a free society a warrant provides fourth amendment

protection (1) by substituting the judgment of a judicial

officer for that of the police officer; (2) by preventing

hindsight from coloring the determination of probable

cause; and (3) by providing the person subject to the

arrest with assurance that the police officer is acting

within lawful authority. United States v. Martinez-

Fuerte, 428 U.S. 548, 565-66 (1976). Under our consti-

tution a warrantless arrest is unreasonable except in a

few “jealously and carefully drawn” exceptional circum-

stances. Jones v. United States, 357 U.S. 493, 499(1958).

In our country a warrantless entry into a home by a

police officer is presumed unreasonable, because our so-

ciety recognizes the special sanctity of the home. In Pay-

ton v. Nel York, 445 U.S. 573, 585-86 (1980), the Unit-

ed States Supreme Court clearly proclaimed that the

“ ‘physical entry of the home is the chief evil against

which the wording of the Fourth Amendment is direct-

ed,’ and that “it is a ‘basic principle of Fourth Amend-

ment law’ that searches and seizures inside a home with-

out a warrant are presumptively unreasonable.” It is

only when “exigencies of the situation . . . make war-

rantless entry imperative” that warrantless entry into a

person's home may be condoned. Laasch v. State, 84 Wis.

2d 587, 594, 267 N.W.2d 278 (1978). (Emphasis added.)

I dissent because I conclude that the warrantless intru-

sion into the defendant's home in the instant case is un-

constitutional. First, I have grave doubts as to the con-

stitutionality of sec, 345.22, Stats. 1977, authorizing a

warrantless arrest for violation of a civil traffic offense

committed outside the officer's presence. Absent sec.

345.22 the officer has no statutory or common law au-

thority to arrest the defendant without a warrant. Sec-

ond, assuming arguendo that a police officer has author-

ity to arrest the defendant without a warrant for vio-

1/23

342 OFFICIAL WISCONSIN REPORTS. [JULY

State v. Welsh, 108 Wis. 2d 319. Dissent.

lation of a civil traffic offense committed outside the

officer’s presence if the officer had reasonable grounds

to believe that the person violated a traffic regulation,

the facts in this record do not support the majority’s

conclusion that the officer had probable cause to believe

that the defendant committed the civil offense of operat-

ing a motor vehicle while intoxicated. Third, the facts

do not justify the legal conclusion that the circumstances

were exigent, making the warrantless entry into the de-

fendant’s home “imperative.” Laasch v. State, supra, 84

Wis. 2d at 594.

Arrest for a Civil Offense. In contrast to the cases

cited and relied upon by the majority to justify a war-

rantless entry into the defendant's home, this case does

not involve a warrantless arrest for a felony. This case

does not involve a warrantless arrest for a misdemeanor.

This case does not even involve a warrantless arrest for

the violation of a civil traffic statute committed in the

presence of an officer. This case involves a warrantless

arrest for the violation of a civil traffic statute commit-

ted outside the presence of an officer.

The majority states that the officer's power to arrest

is predicated on sec. 345.22, Stats. 1977, which states:

“345.22 Authority to arrest without a warrant. A

person may be arrested without a warrant for the viola-

tion of a traffic regulation if the traffic officer has rea-

sonable grounds to believe that the person is violating

has violated a traffic regulation."

' Both the defendant and the state initially treated this case as

if the defendant was accused of violating a criminal statute and

not a civil statute. The court of appeals decision stated that the

case involved a misdemeanor yet there is no proof in the record

that the defendant was involved in a crime. A first violation of

sec. 346.63(1) is a civil forfeiture; a se ond or subsequent viola-

tion of within the statutory time period s a crime. Sec. 346,65(2)

(a)1, 2. The state in its briefs referred to the officer's power to

arrest under sec, 968.07(1) (d), Stats. 1979-80, the criminal arrest

statute.

JAY

2) OFFICIAL WISCONSIN REPORTS, 343

Supreme Court

Sec. 345.22 is a departure from the common law doc-

trine of arrest and for the long-standing rules of arrest

in Wisconsin. The statute was enacted in 1971. The long-

standing Wisconsin rules of arrest allowed an officer to

make a warrantless arrest if the officer had probable

cause to believe the person had committed a felony or to

believe the person committed a misdemeanor in the offi-

cer’s preesnce. The officer could not make a warrantless

arrest if the misdemeanor was not committed in the of-

ficer’s presence. The common law, in contrast to the

Wisconsin law, was more restrictive as to the officer's

power to make a warrantless arrest for a misdemeanor.

At common law the arrest was permissible only if the

misdemeanor was committed in the presence of the offi-

cer and constituted a breach of the peace. State v. Smith,

50 Wis. 2d 460, 469, 472, 184 N.W.2d 889 (1971).

The validity of sec. 345.22, which authorizes a war-

rantless arrest for violation of a civil statute when the

violation was committed outside the presence of the of-

ficer cannot be assumed. The constitutionality of a war-

rantless arrest for a felony committed outside the pres-

ence of an officer was not settled until 1976, and then by a

divided United States Supreme Court. In United States

v. Watson, 423 U.S, 411 (1976), the Court declared con-

stitutional a daytime warrantless arrest in a public

place for a felony committed outside the presence of the

officer. The Court upheld the warrantless felony arrest

in that case, reasoning that such an arrest is based on

accepted common law doctrine of arrest and that if fel-

When the defendant made the point that the offense here is civil,

the state agreed that there is no indication that the offense is

criminal. The state in its final brief argues that because the de-

fendant did not raise the question of whether the offense here in-

deed was a crime, that issue has been waived. I conclude that,

regardiess of the issue of waiver, the validity of sec. 345.22 is an

important issue for this case and law enforcement. and we should

under our discretionary powers reach it.

(25

844 OFFICIAL WISCONSIN REPORTS. ([JuLy

State v. Welsh, 108 Wis. 2d 319. Dissent.

ony arrests were permissible only with a warrant or only

in exigent circumstances effective criminal law enforce-

ment would be significantly handicapped. The reasoning

of the Watson case cannot be applied to uphold sec, 345.-

22. I cannot find that the common law allowed a war-

rantless arrest for the violation of a civil offense com-

mitted outside the presence of an officer. The police ap-

parently have the authority to issue a traffic citation to

a person who violated a traffic law ordering the person

to present himself at court at a certain time. If we con-

clude that the police officer must get a warrant to ar-

rest such a person, the effective enforcement of the traf-

fic law will not be significantly handicapped and the

constitutional protection of the sanctity of the home will

be enhanced.

I have found no cases, and the majority cites none, up-

holding a warrantless arrest, either in a public place or

in a home, for a civil traffic offense committed outside

the presence of the officer. All the cases and commentary

cited by the majority address the question of the validity

of an arrest for a violation of a criminal statute. In

Camara v. Municipal Court, 387 U.S. 523, 540 (1967),

the Court concluded that in the absence of compelling ur-

gency a warrantless administrative public health search

of a home violates the fourteenth amendment. Neither

the defendant nor the state discusses the question of the

validity of sec. 345.22, Because the validity of sec. 8345.22

is of significance to traffic law enforcement in general,

I would ask the parties for further briefing on this ques-

tion.

At this stage, however, I wish to express my doubts

about the constitutionality of sec. 345.22, Stats. 1977, to

the extent that it authorizes a warrantless arrest on

probable cause for a civil traffic offense committed out-

side the presence of an officer. Requiring a warrant in

/26

2) OFFICIAL WISCONSIN REPORTS. 345

Supreme Court

civil traffic cases would protect the privacy of the indi-

vidual guaranteed by the constitution and would not un-

duly burden law enforcement. If there are exceptions to

the warrant requirement in civil traffic cases, these have.

to be defined.

Assuming arguendo that the law applicable to warrant-

less felony arrests can be appiied without change to war-

rantless arrests for civil traffic offenses committed out-

side the presence of a police officer, I conclude there was

no probable cause or exigent circumstances.

Probable Cause. In reviewing the decision of the cir-

cuit court as to probable cause, this court will not over-

turn findings of fact unless against the great weight and

clear preponderance of the evidence, but this court will

independently examine the record to make its own deter-

mination of the legal] question, namely, whether the con-

stitutional requirement of probable cause is satisfied.

The circuit court in this case stated its decision from

the bench. The circuit court merely concluded that “the

police did have probable cause to believe that the defend-

ant had committed the offense of operating while under

the influence.” The circuit court did not make any

findings of fact, did not make any analysis or summary of

the facts, and did not analyze the legal principles it used

to reach its legal conclusion.

There are disputed facts in this case and the credibility

of witnesses is at issue. Generally where the circuit court

does not expressly make a finding necessary to support its

legal conclusion, this court can assume that the circuit

court made the finding in the way that supports its

decision. Sohns v, Jensen, 11 Wis. 2d 449, 458, 105

N.W.2d 818 (1960). See also State v. Fillyaw, 104 Wis.

2d 700, 727-28, 312 N.W.2d 795 (1981) (Abrahamson,

J., concurring). The majority’s de novo review of the

record must therefore be to determine the legal signifi-

/R?

ee ee ee

> asia Pots

-“?

—~

346 OFFICIAL WISCONSIN REPORTS. ([Juty

State v. Welsh, 108 Wis. 2d 319. Dissent.

cance of the facts, not to decide the disputed facts and

the credibility of witnesses.

When an arrest is made without a warrant the state

bears the burden of proving the existence of probable

cause. Lerouz v. State, 58 Wis. 2d 671, 682, 207 N.W.2d

589 (1973). In the case at bar a determination by this

court of the lega] question of probable cause to believe

that the defendant was driving while under the influence

of an intoxicant turns on three pieces of information

known to the officer making the arrest.

The first piece of information is the ownership of the

car. This information is relied upon to establish that it is

probable that the defendant was the driver of the car.

Jablonic did not describe the driver sufficiently for the

officer to be able to identify the defendant as the driver.

The officer had to reason that because the defendant was

the owner of the car, he was probably the driver.

The second piece of information on which the deter-

mination of probable cause turns is that the defendant

had been arrested previously in an alcohol-related dis-

turbance. This information is relied upon to establish

that the defendant was probably intoxicated. There is

no indication in the record as to the nature of the alcohol-

related disturbance; as to whom, if anyone, was intoxi-

cated during this alcohol-related disturbance; as to the

nature of the offense for which the defendant was

previously arrested; whether there was any finding of

probable cause for the arrest; or whether any further

civil or criminal proceedings against the defendant re-

sulted from the arrest. The majority opinion says that

the officer “did correctly recall" the arrest. (Emphasis

added.) Supra, p. 325. See also supra, pp. $31, 332

where the majority states that the officer's recol-

lection was accurate and correct. There is nothing in

the record which indicates whether the officer's recollec-

/2F

2) OFFICIAL WISCONSIN REPORTS. 347

Supreme Court

tion about the previous arrest of the defendant is correct

or incorrect.

I need not reach the question of when a defendant's

previous arrest may be relevant and probative in deter-

mining probable cause. In the case at bar the officer's

testimony as to the defendant's prior arrest is so sketchy

and subject to so many interpretations that neither the

circuit court nor this court can use the information about

the arrest to help form its independent determination

whether the facts in the possession of the officer are as

a matter of law sufficient to constitute probable cause.

The third, and most important, and perhaps the only

piece of information on which the determination of prob-

able cause turns, is Jablonic’s statement to the officer.

This information is relied upon to establish that the

driver was probably intoxicated. The critical element in

determining probable cause in the case at bar is whether

the information which Jablonic, a reliable eyewitness,

gave the police officer is sufficient to lead a reasonable

police officer to believe that the driver was probably

driving under the influence of an intoxicant.,

Jablonic, the only person available with first-hand

information about the driver and his driving, testified

that the driver was walking and speaking with difficulty

and that he was either intoxicated or sick. Even though,

as he testified, he was familiar with the signs of intoxica-

tion, Jablonic had good reason to be uncertain, The

weather was bad, and visibility was poor. Further,

Jablonic was not able to verify or discard his intoxication

theory because he did not have the opportunity to smell

any alcohol when the driver spoke to him and asked him

for a ride. I acknowledge that the mere fact that an

innocent explanation for the driver's conduct, that is,

illness, may be imagined is not enough to defeat probable

cause. 1 LaFave, Search and Seizure, sec. 3.2(e), pp.

483-84 (1978). But in this case the innocent explana-

(29

348 OFFICIAL WISCONSIN REPORTS. ([JuLy

State v. Welsh, 108 Wis. 2d 319. Dissent.

tion for the driver’s conduct is not imagined; the inno-

\ cent explanation is provided by the only witness, and it

“ is provided as a real possibility.* The majority, without

terizes Jablonic's reference to illness as ‘merely a remote

possibility which provided an alternative, more charitable

explanation.” Supra, p. 325.

Sal The officer’s testimony of what Jablonic told him is

inconsistent with Jablonic’s testimony. The officer testi-

fied that Jablonic had a definite opinion that the driver

{ ® Jablonic’s entire testimony as to what he told the police officer

concerning the driver's condition is as follows:

“Q. What did you tell the officer? Did you give the officer a

description of the individual you had been talking to?

{ )“A. I don’t recall that I did at the time, I told him that I felt

+ the man was very inebriated or very sick or not very much in

possession of his faculties or ability to perform. And it was my

feeling that he had taken off across the field.

“Q. What did you base your opinion on that he was inebriated?

“A. Well, first of all the erratic motion of the car, and then

the staggering and slurred speech that he exhibited when he was

2 trying to talk to me,

PY “Q. You have seen people or persons under the influence of an

i intoxicant before?

Hi “A. Working at the University, it's a common—very common to

see many inebriated people, unfortunately.”

Jablonic described the driver as follows:

"Q. Did you notice anything about this person?

“A. They had a kind of a wet leather jacket on or something

that looked like a reddish-brown jacket, as what | can recall. It

was evening. It was raining and wet. It might have been even a

sportcoat that was just wet. And they stood by the window of

the car, which I rolled down,

“Q. All right, did you have an opportunity to observe the way

this person walked?

“A. It was very unsteady and unsure, And—the person that

just wasn't very well would walk like that.

“Q. And did you—did this person get close enough to you that

you could observe his breath?

I explanation and without any basis in the record, charac-

te te me ee

1/20

2) OFFICIAL WISCONSIN REPORTS. 349

Supreme Court

was intoxicated.? Other aspects of the officer's testi-

mony, however, indicate that Jablonic hud conveyed his

uncertainty to the officer as to whether or not the driver

was intoxicated. The officer's own testimony indicates

that he went to the defendant's residence to investigate

the defendant's condition, not to arrest the defendant.

Thus in response to the question as to what was the

officer's ‘mental intent, when you went into the house,

to have him arrested for drunken driving,” the officer

answered,

“Well, it was my mental intent to go in the house and

determine if he was in his bedroom, and what condition

he was in, and whether or not he had anything to drink

prior to leaving where the accident or the incident took

lace, ungil the time he got into bed. It was my intent to

nvestigate it up to that point and make a determination.”

It was only after making the warrantless entry into the

home, observing the defendant “wringing wet,” seeing

in the bedroom defendant's clothes which matched the

clothes Jablonic described and smelling alcohol that the

officer himself concluded he had sufficient information

to lead him to believe that the defendant probably com-

mitted the offense of driving while under the influence

of an intoxicant and decided to arrest the defendant.

Although the majority states that the circuit court

reached “the conclusion that Jablonic conveyed the defi-

nite impression that the driver was intoxicated" (supra,

“A. No, They remained outside the vehicle. I did rol] down the

window, I conversed with the person. But there was no oppor-

tunity to sme!l his breath.”

> Officer Daley testified as to his conversation with Jablonic as

follows:

"Q. Do you recall whether or not he (Jablonic) said anything

about this individual being under the influence?

“A. Yes, he had a definite opinion about that.

“Q. What did he tell you?

“A. He said the man was very obviously intoxicated,”

/3/

——————

350 OFFICIAL WISCONSIN REPORTS. ([Juty

State v. Welsh, 108 Wis. 2d 319. Dissent.

p. 324), nowhere in the record did the circuit court state

such a conclusion or even hint it reached such a con-

clusion. The circuit court’s only reference to Jablonic’s

testimony is a reference by the circuit court to its notes

which quote Jablonic as telling the officer that the driver

was either sick or intoxicated. If any conclusion of the

circuit court might be gleaned from the record as to the

circuit court's finding of credibility as to Jablonic’s or

the officer’s version of what Jablonic told the officer,

and I do not know that any can be, it is that the circuit

court relying on its notes concluded that Jablonic offered

two explanations to the police officer for the driver's

conduct—intoxication and illness. The most appropriate

construction of the record is, however, that the circuit

court concluded that it need not decide which witness

to believe because whichever witness it believed the evi-

dence was adequate to establish probable cause.

The majority seeks to bolster its conclusion that the

officer had probable cause by relying on the officer's

testimony as to what the daughter and the wife said

when the officer entered the house. The daughter was

not present to testify. The wife, without objection, re-

lated the daughter's version of what had happened, and

the wife's testimony contradicts the officer's. The circuit

court expressly avoided having to determine whose testi-

mony it believed, the wife's or the officer's, and therefore

the majority cannot use the officer's disputed testimony

to bolster its conclusion.

Although the subjective conclusions of the police officer

concerning the existence of or lack of existence of prob-

able cause do not bind a court, the officer's apparent

decision in the case at bar that the eye-witness furnished

information sufficient to warrant further investigation

but did not furnish information sufficient to lead him to

believe that the defendant probably committed the offense

of driving while under the influence of an intoxicant

has some weight in this court's independent determination

/32

2) OFFICIAL WISCONSIN REPORTS. 351

Supreme Court

of whether the information relayed to the officer was

sufficient. Instead of saying that he intended to arrest

the defendant but that he would have refrained from

making the arrest if ¢ found that the defendant was not

intoxicated, the officer concluded on the record that it

was his “intent to investigate. . . and make a determina-

tion.” The majority cannot, try as it will, change the

officer's words.

On the basis of the record in this case, I conclude that

the state did not present sufficient facts to prove that

information in the officer's possession was sufficient to

satisfy the constitutional standard of probable cause. |

coniude that when the officers entered the residence,

they could only suspect that the defendant may have been

the driver and that the driver may have been under the

influence of an intoxicant. Reasonable suspicion (that

is, ample factual justification falling short of what is

required to support arrest or search) may be sufficient

to justify further investigation, and in some situations,

to justify a stop but it is not sufficient to justify a war-

rantless arrest. Brown v. Texas, 443 US 47, 51 (1979);

Ter y v. Ohio, 392 US 1, 22 (1968) ; Wong Sun v. United

States, 371 US 471, 479 (1963); State v. Cheers, 102

Wis. 2d 367, 386-87, 306 N.W.2d 676 (1981); Bies v.

State, 76 Wis. 2d 457, 465-66, 251 N.W.2d 461 (1977).

The majority opinion, in the section entitled probable

cause, discusses the government's interest in eradicating

drunk driving. Supra, pp. 333-335. The relevance of this

discussion is not readily apparent. First, granting the

police the power that the majority does in this case “does

not appear sufficiently productive to qualify as a reason-

able law enforcement practice under the Fourth Amend-

ment.” Delaware v. Prowse, 440 U.S. 648, 660 (1979).

The contribution to highway safety of allowing warrant-

less arrests in the home of persons who are reported to

have driven erratically and who are described as drunk

{33

‘

352 OFFICIAL WISCONSIN REPORTS. [Jury

State v. Welsh, 108 Wis. 2d 319. Dissent.

or sick and who caused no damage to property or person

is marginal at best.

Second, if the police officer had probable cause to make

the arrest, the government's interest and the seriousness

of the offense are irrelevant. If the police officer did not

have probable cause to arrest, the arrest is unconstitu-

tional and the government’s interest and the relative

seriousness of the offense are irrelevant. If the major-

ity’s discussion of the government's interest is the ma-

jority’s way of saying that the seriousness of the offense

is a factor for the police and the courts to consider in

determining probable cause, the majority is making a

dramatic change in the law of probable cause and is

establishing a balancing, sliding scale test that would be

difficult for both police and courts to comprehend and

apply. 1 LaFave, Search and Seizure, sec. 3.2(a), pp.

450-58 (1978) .*

“In determining probable cause there is no balance or weighing

of the gravity of the public concerns served by the arrest and the

severity of the interference with individual liberty. The balance

has been made by adopting the requirement of probable cause. As

the United States Supreme Court has said, “The requisite ‘balance’

has been performed in centuries of precedent and is embodied in

the principle that seizures are ‘reasonable’ only if supported by

probable cause.” Dunaway v. New York, 442 U.S, 200, 214 (1979).

The majority at one and the same time appears to negate and

to inject a balancing test in determining probable cause. The

majority says at eupra, p. 327 that “although the State must

prove the existence of both probable cause and exigent circum-

stances, negating any implication of adherence to a mere balane-

ing teat, the progeny of Fourth Amendment case law demonstrates

that reasonableness occupies a prominent position in search and

seizure analysis.” (Emphasis supplied.) The progeny to which

the majority refers are Brown v. Texas, 443 U.S, 47, 60-51 (1979),

and Bies v. State, 76 Wis. 2d 457, 466, 251 N.W.2d 461 (1976)

(quoting Browne v, State, 24 Wis. 2d 491, 507, 129 N.W.2d 175

[1964] cert. denied. 379 U.S. 1004). These cases involve an inves-

tigation or a stop which requires something less than probable

cause. An investigation and a stop may be justified even if there

/34¢

2) OFFICIAL WISCONSIN REPORTS. 353

Supreme Court

Exigent circumstances. Even if there is probable cause

to believe the defendant has committed a felony, a war-

rant is required to enter a home unless exceptional cir-

cumstances are present which justify a warrantless entry.

United States v. Johnson, — U.S. —— (June 21, 1982) ;

Payton v. New York, 445 U.S. 573 (1980); Laasch v.

State, 84 Wis.2d 587, 267 N.W.2d 278 (1978). Payton

and Laasch, upon which the majority relies, are au-

thority only for the proposition that a warrantless arrest

in a home may be permissible under exigent circum-

stances if the officer has probable cause to believe a

felony has been committed. These cases are not au-

thority for a rule that a warrantless arrest can be made

ina home under exigent circumstances if the crime is a

misdemeanor or if the offense is a civil traffic offense.

The majority cannot assume that the Payton and Laasch

rule is automatically applicable to this case. The issue

which must be decided, not assumed, is under what cir-

cumstances, if any, is a warrantless entry in a home at

night to effect an arrest for violation of a civil statute

constitutional? Does the government's interest in en-

forcing the civil law and collecting a forfeiture ever

is no probable cause as long as there is “mere ‘reasonable suspi-

cion.’” Dunaway v. New York, 442 U.S. 200, 211 (1979). Reason-

ableness in the probable cause context revolves around whether

the officer has reasonable grounds to believe that the defendant

probably committed a crime. Reasonableness in the context of an

investigation or stop involves balancing the gravity of the state's

interest and the nature of the invasion of the privacy of the per-

son. The majority's shifting back and forth between the balanc-

ing test justifying an investigation or stop and the concept of

probable cause justifying a search or an arrest may very well ex-

plain why the majority reaches the conclusion it did in this case

that the intrusion in the defendant's home and his arrest were con-

stitutional.

The court of appeals used a balancing test in this case to deter-

mine exigency, not in the issue of probable cause. See note 5 in/ra.

/25

a) oe eee |

354 OFFICIAL WISCONSIN REPORTS. [Juty

State v. Welsh, 108 Wis. 2d 319. Dissent.

outweigh an individual's expectation of privacy in his

or her home?

Even if I were to assume that the Payton-Laasch

rule is automatically applicable to this civil forfeiture

case, I conclude the record is not adequate to find exigent

circumstances.

The exigent circumstances doctrine, like all exceptions

to the warrant requirement, must be viewed as a narrow

exception to the protections of the fourth amendment.

In McDonald v. United States, 335 U.S. 451, 456 (1948),

the Court said: “We cannot. . . excuse the absence of a

search warrant without a showing by those who seek

exemption from the constitutional mandate that the

exigencies of the situation made that cause imperative.”

(Emphasis added.) See also Laasch v. State, quoted

supra at page 3 of this dissent.

Although the United States Supreme Court has on

several occasions spoken of exigent circumstances, the

Court has not clearly defined what are exigent circum-

stances or established standards to measure the existence

of such exigent circumstances. In this case, the circuit

court appeared to conclude that the exigency arose out of

hot pursuit and the need to preserve evidence of intoxica-

tion. The majority, on the other hand, identifies three

exigent circumstances, that is, three urgent circumstances

that make resort to the warrant process impracticable:

(1) the need to prevent the offender's escape (hot pur-

suit); (2) the need to prevent physical harm to the

offender and the public; and (3) the need to prevent the

destruction of evidence.

The majority opinion does not establish standards by

which the existence of the exigent circumstances are to

be tested. For example, the majority does not explain

whether the test for a valid warrantless entry under the

exigent circumstances doctrine is a subjective one, an

objective one, or both. In State v. Prober, 98 Wis. 2d

/36

2) OFFICIAL WISCONSIN REPORTS. 355

Supreme Court

345, 365, 297 N.W.2d 1 (1980), the court adopted a two-

step analysis (subjective and objective) for application

of the emergency doctrine, an exception to the warrant

requirement which is similar to the exigent circumstances

doctrine. Under Prober, the warrantless search is in-

valid unless the officer is actually motivated by the per-

ceived emergency, that is, to render aid or assistance

(subjective test). Second, “even though the requisite

motivation is found to exist,” the warrantless search is

invalid unless a “reasonable person under the circum-

stances would have thought an emergency existed” (ob-

jective test).

If the Prober two-step analysis for the emergency doc-

trine is not applicable to the exigent circumgtances doc-

trine the majority ought to tell us why.

This case cannot meet the Prober subjective test. The

officer did not testify that he believed he had to arrest

the defendant immediately in order to prevent the de-

fendant from escaping or in order to protect the defend-

ant or the public from the danger of the defendant driv-

ing another automobile that night. The officer does refer

to the fact that alcohol dissipates with the passage of

time. But the officer said that his subjective motivation

was to investigate immediately, to determine if the de-

fendant was drunk. The officer did not testify that he

believed he had to arrest the defendant immediately to

preserve the evidence. He said he went into the house to

determine whether the defendant was drunk and if so he

would then attempt to preserve the evidence.

This case also cannot meet the Prober objective test of

exigent circumstances.* The essence of the exigent cir-

In applying the objective standard, federal and state courts

have, according to the commentators, taken one of two approaches

in attempting to articulate the facts which bear on the determina-

tion of exigent circumstances: the checklist approach articulated

in Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970) (en

(27

weer.”

356 OFFICIAL WISCONSIN REPORTS. ([Juty

State v. Welsh, 108 Wis. 2d 319. Dissent.

cumstances doctrine is the degree of urgency to make

the arrest or search created by the exigency and the

amount of time it would take to obtain a warrant.

The warrantless entry in this case cannot be justified

as necessary to prevent the defendant from escaping

arrest or to prevent physical harm to the driver or to the

public. The police had the defendant's name and address.

There is nothing in the record to indicate that the police

thought he would leave the jurisdiction or would not be

available for arrest unless he was pursued and arrested

immediately. The majority speculates, without anything

in the record supporting this speculation, that the de-

fendant (whose car was in the field and who, as the police

officers found out when they knocked on the door, was in

banc) or the totality of the circumstances test. See Harbaugh and

Faust, “Knock on Any Door”’—Home Arrests after Payton and

Steagald, 86 Dick. L. Rev. 191, 224-25 (1982); Donnino and Gi-

rese, Exigent Circumstances for a Warrantless Home Arrest, 45

Alb. L. Rev. 90 (1980) ; 2 LaFave, Search and Seizure, sec. 6.1, pp.

388-95 (1978).

Judge Gartzke, writing for the court of appeals, used a balanc-

" Ing test to determine whether the exigency justified the intrusion.

He assumed that this case involved a misdemeanor and concluded

that although there was urgency to avoid destruction of evidence,

the urgency in this case was not sufficiently great to justify a

warrantless arrest in the home. He noted that the “misdemeanor”

in this case was not a grave offense. The defendant had not in-

jured any person or property. The defendant's wife and daughter

were in no danger. The defendant was in no danger; he was up-

stairs in bed. An intrusior by the police into a bedroom at night

ia @ serious intrusion on privacy. Entry into the home is ordinar-

ily afforded the most stringent fourth amendment protection.

Judge Gartzke's approach of looking at the entire case and bal-

ancing the government's need for immediate police action and the

defendant's interest in privacy in the home is interesting and

worthy of discussion and consideration. It also seems to fit into

the majority’s keen interest in balancing and reasonableness. Un-

fortunately the majority ignores the approach of the court of ap-

peals.

/ZB&

«#4

2) OFFICIAL WISCONSIN REPORTS. 357

Supreme Court

bed) had to be arrested immediately to prevent him from

driving another car. The “threat to safety” exception

must be limited to situations where the officer has reason-

able factual justification to believe the defendant intends

to drive again. Without this limitation, in every case

involving probable cause to believe that the person was

driving under the influence, the police would be justified

in making a warrantless entry into the home to arrest

the person.

The threatened destruction or removal of evidence pre-

sents a more difficult issue of exigent circumstances.

It is beyond question that alcohol “disappears” over a

period of time and that the evidence of intoxication will

be destroyed by the passage of time. But neither the

record nor the majority opinion describes the degree of

urgency to make the arrest, that is, how long a time period

may elapse before the alcohol has disappeared, and the

amount of time it would take to obtain a warrant in the

city of Madison at 9:30 at night.

Drugs can be flushed down a toilet in seconds. Money

or bloody clothes can be burned within minutes. When

we talk about “destruction” of the evidence of intoxica-

tion we are talking about hours.

Sec. 345.24, Stats. 1977, indicates that it may take up

to four hours to allow an intoxicant’s blood alcohol

content to metabolize to a “safe” level. Sec. 885.235(3),

Stats. 1977, states that chemical tests performed within

two hours of the event to be proved are given prima

facie effect without expert testimony; tests performed

more than two hours after the event to be proved are

admissible as evidence if expert testimony establishes

its probative value and prima facie effect. Thus police

can perform the test more than two hours after the event

and still have acceptable evidence to present in court.

In State v. Bentley, 92 Wis.2d 860, 286 N.W.2d 153 (Ct.

App. 1979), a blood sample was taken from the accused

129

mee

aob a tS ae

es ee

358 OFFICIAL WISCONSIN REPORTS. [JULY

State v. Welsh, 108 Wis. 2d 319. Dissent.

three and a half hours after the accident, and the results

were apparently damaging to the accused's position. Sec.

885.235(3) was amended in 1982 to provide that samples

taken within three hours are given prima facie effect

without expert testimony; tests not taken within three

hours after the event are admissible only if expert testi-

mony establishes their probative value and prima facie

effect. See ch. 20, sec. 1816(c) and (e), ch. 184, sec. 5,

Laws of 1981.

In this case the police zeroed in on the identity of the

defendant in about one half hour after the event to be

proved. It is up to the state to introduce evidence that

resort to the warrant process was impracticable because

the warrant and any test for intoxication would come too

late. Yet the state introduced no such evidence. Nor are

there scientific facts or facts relating to the practice in

Dane County as to the issuance of warrants of which

this court might take judicial notice to justify the con-

clusion that a reasonable officer might reasonably have

believed that he had to preserve the evidence from de-

struction and had no time to get a warrant. Because the

state has not met its burden of showing that its warrant-

less entry was “imperative,” I would hold that the circum-

stances were not exigent.

Accordingly, I would affirm the decision of the court

of appeals and remand this case to the circuit court to

determine the issue of consent.

To preserve the federal and state constitutional guar-

antees of the sanctity of the home against the knock on

the door in the middle of the night by government officers

who do not have a warrant issued by a judicial officer,

I dissent.

I am authorized to state that Justice NATHAN §S.

HEFFERNAN joins this dissent.

140

‘ LS a

] tale

iii SEP 27 1982

SUPREME COURT OF THE UNITED STATES Ofr. oF THE CLERK

October Term, 1982 SUPRE

Case No. ME COURT, U.S.

EDWARD G. WELSH,

Petitioner,

STATE OF WISCONSIN,

Respondent.

Petitioner, by his undersigned attorney, hereby moves to

be permitted to file a petition for writ of certioari in this 4

court in forma pauperis, pursuant to Rule 46, Rules of the

Supreme Court of the United States, on the basis of the

attached affidavit.

On this day petitioner also executed an affidavit of

indigency for the Wisconsin State Public Defender who is

assisting petitioner in this action. The Wisconsin

affidavit is also attached herewith.

Dated this 23d day of September, 1982.

Respectfully submitted,

RDON BREWSTER BALDWIN

Attorney for Petitioner.

P.O. Adress:

University of Wisconsin

Law School

Madison, WI 53706

(608) 263-2077

ue : ¥

RECEIVED

IN THE SUPREME COURT

OF THE UNITED STATES SEP 27 1982

October Term, 1982 Orr.v. ut THe CLERK

SUPREME COURT, US.

EDWARD G. WELSH,

Petitioner,

Vv. No,

STATE OF WISCONSIN,

Respondent.

AFFIDAVIT IN SUPPORT OF MOTION TO

PROCEED ON APPEAL IN FORMA PAUPERIS

I, Edward G. Welsh, being first duly sworn, depose and +

say that I am the petitioner in the above-entitled case; that

in support of my motion to proceed on appeal without being

required to prepay fees, costs, or give security therefor, I!

state that because of my poverty I am unable to pay the costs

of said proceeding or to give security therefor; that I

believe I am entitled to redress; and that the issues which I

desire to present on appeal are the following:

Whether the Fourth and Fourteenth Amendments permit

police to enter my home without a warrant, and without estab-

lishing consent to enter, in order to make an arrest for a non-

jailable offense.

I further swear that the responses which I have made to

the questions and instructions below relating to my ability to

pay the cost of prosecuting the appeal are true.

(1) Are you presently employed? W/o m

(a) If the answer is yes, state the amount of

Salary or wages per month and give the name and address

of your employer.

(b) If the answer is no, state the date of your

last employment and the amount of the salary and wages

per month which you received.

March. /7E?

4700 00 a Mo,

(2) Have you received within the past twelve months any

income from a business, profession, or other form of self-

employment, or in the form of rent payments, interest, divi-

dends, or other source?

(a) If the answer is yes, describe each source of

income, and state the amount received from each during

the past twelve months.

Y (3) Do you own any cash or checking or savings account?

(a) If the answer is yes, state the total value of

the items owned.

(4) Do you own any real estate, stocks, bonds, notes,

automobiles, or other valuable property (excluding ordinary

household furnishings and clothing)?

(a) If the answer is yes, describe the property and

state its approximate value.

19 74 - Burch appre S00. oo

(5) List the persons who are dependent upon you for

support and state your relationship to those persons.

Pt lL) ehek ~ Husband

Mike belek - Jathar

I understand that a false statement or answer to any

questions in this affidavit will subject me to penalties for

eke G. WELSH

perjury.

Subscribed and swo

before me this Ho pepe ates Say

of Semkonry” “ 982.

tary Public

State Of Wisconsin

My Commission is Permanent.

vTecrcsondo a / ar Tile as 326 autati,

v. AFFIDAVIT OF INDIGENCY

Edward G, Welsh

7158 Tree Lane

Madison, WI 53717 Defendant.

608-633-6172

The undersigned defendant first duly sworn on oath deposes and says:

1. That s/he is (St_enployed) (employed with a take home pay of $ 0 /

‘

monthly.) Number of dependents including yourself 3 .

2. That s/he receives monthly welfare, @isability) pension or octal security >)

payment of $ 360.00 :

3. That s/he has following assets which are valued as shown:

Yes No Value/Equity*

a. Savings account RF x

b. Checking account ae La

c. Cash a a

d. Miscellaneous funds ame )

e. Money owed him/her aa |

f. Stocks and/or bonds — a

g- Real estate mS ) ia

h. Automobile(s) and other

vehicle(s) eS A $800,00

14. Personal property ons X_ vd

j. Life insurance (list cash value) ae a

k. Other assets not listed above ae x

*Cash value to client after payment of all mortgages or loans.

“a

4, That s/he anticipates the following unusual, special, and/or emergency

expenses in the next 8 months (if a felony case), or in the next 4 months

(all other cases):

TYPE AMOUNT

—___ Surgery. @$200, 01

—___Irial Attorney Fees 6700, 00

Jackson Clinic eG 1200,00

5. That bail in this case is: $ n/a_

6. That s/he believes him/herself to be indigent, desires the assistance of

counsel, that s/he does not have sufficient funds to hire counsel, and that

no one will hire counsel for him/her.

7. That s/he understands any material misrepresentation herein could subject

him/her to a felony charge of false swearing pursuant to sec. 946.31, Wis,

Stats.

8. That s/he agrees to promptly inform the State Public Defender or his/her

attorney of any change in the above information.

I understand that I nay appeal to the

court any determination that I am not

Subscribed, and swogn to before me

this day of Sab itm

eligible for appointed counsel. Sec

Public, State of eal °

My commission ) 977.07(3), Wis, Stats.

COMPUTATIONS

i. Cash assets (total of lines a, b, c, d, e) $

2. Stocks and/or bonds (line f) $

3. Equity of real estate, vehicles, and personal

property (25% of lines g, h, 1) $ L200. oD

4. Cash value of life Msurance (line j) $

5. Total of other assets (line k) $

6. TOTAL ASSETS (total of lines 1-5 above): $ 200 md

7. Monthly income:

a. Monthly income (total lines 1-2 from affidavit) $ 3G0.0d

b. Monthly expenditures (from schedule in Appendix

10b from procedures manual) $ $7A. L)

c. Difference (subtract 7b from 7a) ¢"s4la. 7d

d. Line 7c times 8 if felony case or times 4 in

all other cases $ K x

8. TOTAL SPENDABLE MONTHLY INCOME (from line 7d above) s-¥ 96.00

9. TOTAL (lines 6 and 8 above): $-G@7b.0d

10. Total unusual, emergency or special expenses (total

of line 4 of affidavit) $ £/GO. od

ll. Amount necessary to post bail

$ wr;

12. TOTAL (lines 10-11) $ $102.

INDIGENCY DETERMINATION

A. Enter line 9 from above $ - 696. iL)

B. Enter line 12 from above $ 8/0. UP)

c. Difference (subtract line 12 from line 9) s-3 796. ad ‘

D. Anticipated cost of counsel (from SPD 3.02) $ 1500.40

1. Client indigent if line C is 0% to 50% of line D.

2. Client is partially indigent if line C is 50% to 100% of line D.

Partial payment required of up to amount shown on line 6 above, but

not to exceed 50% of line D. ;

3. Client is partially indigent if line C is 1007 to 150% of line D.

Partial payment required of up to amount shown on line 6 plus up

to 50% of line D.

4. Client is not indigent if line C is more than 150% of line D.

Client is: Not indigent ; Indigent “A Partially indigent =: (If partially

indigent, client must pay $ °

1. Lump sum due: $ by .

2. Partial payments of §$ for months commencing on

As a condition of my receiving public paid counsel, I hereby agree to make the

payment(s) indicated above.

Defendant

Wh. Cute

Staff person conducting evaluation

Approved:

Local Representative

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.