Respondents Brief — Welsh v. Wisconsin

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Case No. 82-5466 j

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1982

EDWARD G. WELSH,

Petitioner,

STATE OF WISCONSIN,

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF WISCONSIN

BRIEF OF RESPONDENT

BRONSON C. LA FOLLETTE

Attorney General of Wisconsin

STEPHEN W. KLEINMAIER

Assistant Attorney General

of Wisconsin

Attorneys for Respondent.

Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707

(608) 266-1677

TABLE OF CONTENTS

Page

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..................06. l

SUPPLEMENTAL STATEMENT OF FACTS....... 4

SUMMARY OF ARGUMENT..................0000: 6

SE es ceo dd lc abEen tech 144400 4 bN baie cieeake 7

I. The Defendant Was Arrested For

The Misdemeanor Offense Of

Operating A Motor Vehicle While

Under The Influence Of An Intoxi-

(SE pea a ay a Sy 7

II. Whether The Defendant Was Ar-

rested For A Misdemeanor Or A

Forfeiture Offense, The Arrest

Was Valid If The Police Had Prob-

able Cause To Believe He Com-

mitted The Offense Of Drunk

Driving And Exigent Circum-

stances Existed To Justify Their

Failure To Obtain A Warrant ....... 12

A. The common law rules of arrest

were not made part of the constitu-

tion by the adoption of the fourth

I es roe eee tees 15

B. Even if the common law rules of

arrest were adopted as part of the

United States Constitution, the

arrest of the defendant was valid

because drunk driving qualifies as

a felony under the eighth amend-

SORE TE 5 io Sills Cdl dan oc gists kieee 25

III.

IV.

VI.

CONCLUSION

C. Evenif the United States Constitu-

tion adopted the common law rules

of arrest, and even if the labels

placed on the offenses by the local

legislatures are controlling, the

arrest in the instant case was

Ce es ea a gs eee di so

At The Time Of The Arrest, The

Police Possessed Probable Cause

To Arrest The Petitioner

For The Offense Of Operating A

Motor Vehicle While Under The

Influence Of An Intoxi-

Se ca alrns oF ieee ede hs te hoes caw ees

Exigent Circumstances Existed To

Justify The Warrantless Arrest

Of the Defendant. ................

A. Hot pursuit ................ eats

B. Theimminent threat to safety. ...

C. Prevention of the destruction of

ERIE Bigey SPREE See

This Court Should Not Require

The Police To Seek A Telephone

Warrant Before Entering The

Defendant’s Home To Arrest Him. ...

A Decision Invalidating The Entry

Into The Defendant’s Home Would

Hamper Effective Law Enforce-

SE Ah s bead ccabe spac beats cu bibas «

“eee eee eee eee eee eee

Page

.. 29

.. 36

‘oa

ill

Page

CASES CITED

Aliff v. State,

627 S.W.2d 166

oe 8 Re ee ero 39

Argersinger v. Hamlin,

Be es CTs on kavavs daveeesss vaun bee 18

Bad Elk v. United States,

Er Se I cs ik cevesdeusaccanceeences ane 24

Baldwin v. New York,

Be SITE so voc avevenewasednned apenas 27

Boyd v. United States,

Be CEE ook con aevduccatbavacseeeeane 32-33

Breithaupt v. Abram,

SE UE, GIB oie be nccccedinuticdedcereutes 28

Brown v. Municipal Court of Los Angeles,

86 Cal. App. 3d 357,

ope Bo Sh ek rere ee 43

Camara v. Municipal Court,

ee GA ETD inners acvsvecrdiete 30,31,32,40,41

Carroll v. United States, )

Re a EEE bss da ccccagcievdcnenawee Gane 18

City of Columbus v. Herrell,

18 Ohio App. 2d 149,

ee ee FH CRUD vk cca ccvevescecseveseneae 23

Commonwealth v. Levesque,

469 Pa. 118,

RED o.oo onc cddsueeeSecess cabana 23

Cemmonwealth v. Trefry,

. 249 Pa. Super. 117,

a SEINE hive ba bessvaus chaaauens 38,41,43

County of Walworth v. Rohner,

108 Wis. 2d 713,

CRONIES , oc tcc ccccccvccccvcces 9,26

DeVaney v. State,

259 Ind. 483,

ME CPCB) 5. .ccccccccccccsvcccvece 38,43

Diamond v. Marland,

395 F. Supp. 432 (S.D. Ga. 1975) ................ 23

Duncan v. Louisiana,

ee ces seueeceveeee 27

Gregg v. State,

OE) 38

Hayes v. State,

634 S.W.2d 359 (Tex. Ct. App. 1982)............. 38

In the Matter of Gardner,

39 N.C. App. 567,

RIND ccc o cc ccccccevevececce 23

Johnson v. United States,

EE 38

Ker v.California,

Tee pee eseseseees 25

Klingler v. United States,

S00 F.20 300 (Oth Cir. 1068)..........cccccceeees 25

Mackey v. Montrym,

ET 26-27,40,41,42

McDonald v. United States,

Teen tees esececvescecs 38

Michigan v. Tyler,

ccc ceceseevedeeve 38

Noble State Bank v. Haskell,

aes dc pele vo beds cuevns 21

North American Cold Storage

Company v. City of Chicago,

ce oa ne nauwe 6 eels 40

One 1958 Plymouth Sedan v. Pennsylvania,

ee ee ER ahd cave kcncs veces ciuatunse<s 32,33

Payton v. New York, 6,12,14,15,17,21,

445 U.S. 573 (1980) ..........0006. 25,30-31,31-32,39

People v. Baca,

198 Colo. 399,

SE SUE io c.0'0ceS avec veekna teas slocnes 35

People v. Bell,

41 Ill. App. 3d 233,

IRIN « . obs es odevinrecdeseecheaves 38

People v. Rodriguez,

645 P.2d 857 (Colo. Ct. App. 1982) .............. 38

Pollard v. State,

439 N.E.2d 177 (Ind. Ct. App. 1982) ............. 38

Rummel v. Estelle,

eg ee eeu sy 18

Schmerber v. California,

BOS UB. TOs CIGGOD occ ce cccccicces 38,39,40,41,42,43

Schneckloth v. Bustamonte,

ae aew thane 27

Shultz v. State,

417 N.E.2d 1127

Se I ED w'bin os 6 wose.vepes DSS eb ont 38

Silver v. Silver,

I hi a 21

Page

Solem v. Helm

I ie EE MD casa ak von cecniewheen wuss 28

South Dakota v. Neville, — U.S. —,

ee 26,41

State in Interest of M.P.C.,

165 N.J. Super. 131,

Se TO RENTEND 5 cob poche pvdctccdeciseenes 38

State v. Banks,

105 Wis. 2d 32,

Ee ET CEUIED occ ckccrccvsccthacedocces 8,9,11

State v. Berker,

ee OE PUPS yc ivnssvecvoovdeesenees 23

State v. Burkman,

96 Wis. 2d 630,

ee EE CEO) boss vc cneccevesepsceeveces )

State v. Campbell,

615 P.2d 190 (Mont. 1980) ..............ceeeeees 38

State v. Jennings,

112 Ohio App. 455,

Pe RM PE LEO cv ccvccccccecvecveccceeshs 28

State v. Martin,

275 S.C. 141,

SES Bi 0. 10GB (1GG0) . wc ccc cccncrecers 36,37,43

State v. McAllister,

107 Wis. 2d 532,

SAD Be. 0 ee OOO (IGGS) . og cc ccc cece cccess 9,10,11,34

State v. Niedermeyer,

48 Or. App. 665,

617 P.2d 911 (1980),

cert. denied, 450 U.S. 1042 (1981) ............. 32,35

Vii

Page

State v. Oevering,

268 N.W.2d 68 (Minn. 1978) ...........0c ecu eeee 38

State v. Penas,

200 Neb. 387,

- fF & Af Ya. 7. ene meemm rer ee te hn 35

State v. Spence,

G5 ee. BE Ge Cae, TOE) v0 occ rvvcncnssctenespnn 43

State v. Welsh,

108 Wis. 2d 319, 11,17,27-28,

S31 N.W.2G 246 (19063)... cc ccsccccsens 34,35,36,37

State v. Williams,

417 So. 2d 755

Pes le EG BOE ic ccvc'es vvevasscoeeeebeene 38,43

Steagald v. United States, 6,12,17,21-22,

Me CH I MMEED i ccccccnscuovévanens 31,32,34,39

Street v. Surdyka,

492 F.2d 368 (4th Cir. 1974)............. 22-23,23-24

United States v. Bonds,

422 F.2d 660 (8th Cir. 1970).......... 0. ccc eee es 11

United States v. Grosso,

225 F. Supp. 161 (W.D. Pa. 1964)................ 23

United States v. Harvey,

robe ff. tee: rrr 38

United States v. Santana,

SE Ce OED bison sins sos tbcenesdevassael 34,38

United States v. Stubblefield,

621 F.2d 980 (9th Cir. 1980).......... 00.0 c ee ees 35

United States v. Watson,

— 423: U.S. 411 (1976)... . cece eee conse 15,16,17,18,32

vill

Page

United States ex rel. LaBelle v. La Vallee,

517 F.2d 750 (2d Cir. 1975),

cert. denied, 423 U.S. 1062 (1976) ............... 10

Vale v. Louisiana,

INI sv ss wok oe nb dba nee be’ 38,39,40

Warden v. Hayden,

i he SE a te 34

CONSTITUTIONAL PROVISIONS

United States Constitution

13,14,15,17,18,25

Fourth Amendment........ 26,27,29,30,31,32,33,39

POET EE key 27

Eighth Amendment.......... 1,12,14,18,25,26,29,43

STATUTES CITED

Alabama

Ala. Code § 32-5A-191 (Supp. 1982).............. 20

Alaska

Alaska Stat. § 28-35-030 (Supp. 1982) ........... 20

Arizona

Ariz. Rev. Stat. Ann. § 28-692

da 5d 5 ya o.o'soan'ne'e dood vee 20

Arkansas

Ark. Stat. Ann. § 75-1027 (1979) ................ 20

California

Cal. Veh. Code § 23152

a a calince baveweesain 20

Connecticut

Conn. Gen. Stat. § 14-227(a) (1983) .............. 20

Delaware

Del. Code Ann. tit. 21,

I conc s pdcwseancdtacee rece wen 20

District of Columbia

D.C. Code Ann. § 40-716 (Supp. 1982) ........... 22

Florida

Fla. Stat. Ann. § 316.193

EN cri dinla Ve clansscnns votes nnebe 20

Georgia

Ga. Code Ann. § 68A-902

ES tase Gh buy Wea deb Man Ries bes Anak ae 20

Hawaii

Hawaii Rev. Stat. § 291-4 (Supp. 1982) .......... 21

Idaho

Idaho Code § 49-1102 (1980) .................4.. 21

Illinois

Ill. Ann. Stat. ch. 95 1/2,

§ 11-501 (Smith-Hurd

ee oes cocckbensatanrsenerse 21

Indiana

Ind. Code Ann. § 9-4-1-54

SD SI Es hic bb v6.cds-0 de seu ceeowed 18,20,21

Iowa

- Iowa Code Ann. § 321.281

(West Supp. 1982-1983) ....................08. 20,21

Kansas

Kan. Stat. Ann § 8-1567 (1982)..........

Louisiana

La. Rev. Stat. Ann.

§ 14.98 (West Supp. 1983)...............

Maine

Me. Rev. Stat. Ann. tit. 29,

§ 1312B (Supp. 1982-1983) ..............

Maryland

Md. Transp. Code Ann.

Sees CD. TORE) oo i vc ccicncckccwes

Michigan

Mich. Comp. Laws Ann. § 257.625

A EP RUE 6 chad 000 cat veccwees se

Minnesota

Minn. Stat. Ann. § 169.121

Sere DOIN: ss vas cosy a keabesdees

Mississippi

Miss. Code Ann. § 63-11-30

I ee Oh ion wg de his Sees was fae

Missouri

Mo. Ann. Stat. § 577.010 and

§ 577.012 (Supp. 1983) ..................

Mo. Ann. Stat. § 557.023

GI I oo huctcs una wdn owes caeon eee

Nebraska

Neb. Rev. Stat. § 39-669-07 (1978) .......

Nevada

Nev. Rev. Stat. § 484.379 (1981) ..............05. 21

New Hampshire

N.H. Rev. Stat. Ann. § 265:82 (1982) ............ 21

New Jersey

N.J. Stat. Ann. § 39:4-50

Ee 21

New Mexico

N.M. Stat. Ann. § 66-8-102

eas vec ae cs cccsscccsvecetes 21

New York

N.Y. Veh. & Traf. Law § 1192

(McKinney Supp. 1982-1983) .............. 18,20,21

North Dakota

N.D. Cent. Code § 39-08-01

EE ee 21

Ohio

Ohio Rev. Code Ann. § 4511.19

enact nssvocscresecses 21

Oklahoma

Okla. Stat. Ann. tit. 47,

§ 11-902 (West Supp. 1982-83) ............. 18,20,21

Oregon

Or. Rev. Stat. § 487.540 (1981) ................5. 22

Pennsylvania

Pa. Cons. Stat. Ann. tit. 75,

* §3731 (Purdon Supp. 1983-1984) ................ 22

Rhode Island

R.I. Gen. Laws § 31-27-2

SI cueskt bea une sues kee ecwes

South Dakota

S.D. Codified Laws Ann.

PE ek eeerirapcndicvsasecneus

S.D. Codified Laws Ann.

TTT TTP TT eee eee

Tennessee

Tenn. Code Ann. § 5510-401

Ec av aca cuhwe bree dnh s6r40 e000

Texas

Tex. Veh. Code Ann. § 6701 L-1

(Vernon Supp. 1982-83)..............05.

Tex. Veh. Code Ann. § 6701 L-2

(Vernon Supp. 1982-83) ................

Utah

Utah Code Ann. § 41-6-44

PE atin cad ss ks sae seunsseeien

Vermont

Vt. Stat. Ann. tit. 23,

DE I MED sodincdssvcccebacceace

Virginia

Va. Code § 18.2-266 (1982) ..............

Washington

Wash. Rev. Code Ann. § 46.61.515

__ (Supp. EG os dic cucnuusonacexeets

Page

xiii

Page

West Virginia

W.Va. Code § 17C-5-2 (Supp. 1982) .............. 22

Wisconsin

Wis. Stats. Sec. 345.22 (1975) ........... cece eens 17

$46.63(1) (1975) ....... ee eeevees 9,10

DOR ARED oo vecivedccecseencs 8,9

IU o's cb astseesstasuas 10

346.65(2) (1975) ........... 7,8,18,28

346.65(2) (1981) ...........06. 2-3,18

rer errr ry 1,7

ED ov ch ccctevecensnss 3,17

SHIGE CIGBA) «cc ccscccvcicces 3,45

ST CHOED ob cc cnctaxcciscdes 2,17

Wyoming

Wyo. Stat. § 31-5-229

I EE 6 a So hcekadiwicetecbaveeaceeeeenss 22

OTHER AUTHORITIES

2 La Fave, Search & Seizure,

REE 6s bo vache Cenk scbhesbuhireacaues 24

Case No. 82-5466

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1982

EDWARD G. WELSH,

Petitioner,

Vv.

STATE OF WISCONSIN,

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF WISCONSIN

BRIEF OF RESPONDENT

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

In addition to the constitutional and statutory pro-

visions cited in the Brief of Petitioner, the following

provisions are cited in the Brief of Respondent:

United States Constitution:

Amendment VIII: Excessive bail shall not

be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

Section 939.12, Wis. Stats. (1975):

Crime defined. A crime is conduct which

is prohibited by state law and punishable by

* fine or imprisonment or both. Conduct punish-

able only by a forfeiture is not a crime.

Section 968.07, Wis. Stats. (1975):

Arrest by a law enforcement officer. (1)

A law enforcement officer may arrest a person

when:

(a) He has a warrant commanding that

such person be arrested; or

(b) He believes, on reasonable grounds,

that a warrant for the person’s arrest has been

issued ir this state; or

that a felony warrant for the person’s arrest has

been issued in another state; or

(d) There are reasonable grounds to believe

that the person is committing or has committed

a crime.

(2) A law enforcement officer making a

lawful arrest may command the aid of any

person, and such person shall have the same

power as that of the law enforcement officer.

Section 346.65(2), Wis. Stats. (1981):

Penalty for violating sections 346.62

to 346.64.

(2) Any person violating s. 346.63(1):

(a) Shall forfeit not less than $150 nor

more than $300, except as provided in par. (b) or

(ce).

(b) Shall be fined not less than $300 nor

more than $1,000 and imprisoned not less than 5

days nor more than 6 months if the total of

revocations under s. 343.305 and convictions

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, equals 2 in a 5-year period, except that

revocations or convictions arising out of the

same incident or occurrence shall be counted as

one. The 5-year period shall be measured from

the dates of the refusals or violations which

resulted in the revocation or convictions.

more than $2,000 and imprisoned for not less

than 30 days nor more than one year in the

county jail if the total of revocations under s.

343.305 and convictions 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, equals 3 or more in

a 5-year period, except that revocations or con-

victions arising out of the same incident or

occurrence shail be counted as one. The 5-year

period shall be measured from the dates of the

refusals or violations which resulted in the

revocation or convictions.

Section 940.19(1), Wis. Stats. (1981):

Battery; aggravated battery. (1) Whoever

causes bodily harm to another by an act done

with intent to cause bodily harm to that person

or another without the consent of the person so

harmed is guilty of a Class A misdemeanor.

Section 939.60, Wis. Stats. (1981):

Felony and misdemeanor defined. A

crime punishable by imprisonment in the Wis-

consin state prisons is a felony. Every other

. crime is a misdemeanor.

SUPPLEMENTAL STATEMENT OF FACTS

The respondent, State of Wisconsin (hereinafter “the

state”), provides the following facts to supplement those

stated in the Brief of Petitioner and to correct a statement

in regard to the facts made in the amicus curiae brief filed

for the Wisconsin Civil Liberties Union Foundation.

Randy Jablonic saw Edward G. Welsh (hereinafter

“the defendant’) driving his car extremely cautiously,

first traveling very, very slowly and then a little faster (R.

13:8).'/ Jablonic saw the car go from side to side on the

road; and as the car approached a boulevard it headed for

the median where there was a sign telling drivers to stay

to the right (R. 13:8-9). Jablonic said the car was not

traveling at an excessive rate of speed, but it was

weaving back and forth (R. 13:9). Jablonic saw the

defendant’s eastbound car go down the left lane (R. 13:9).

When acar approached from the east, the defendant’s car

veered left at the last moment before a head-on collision

occurred and drove into a cemetery, or open field, where

the car stalled or got stuck. (R. 13:9).

Jablonic drove past the defendant’s car, turned

around and pulled up behind the car to keep it from

returning to the road (R. 13:10). Jablonic explained:

I made a u-turn there and pulled up behind

because | didn’t want that car to come back out

on the road. Because I realized they would

probably kill somebody. And I immediately

stopped the lady or the person who had been

forced to stop by this car, and asked them to go

call the police — to get some help so that we

'/ The record reference is to page 8 in the transcript of the hearing

of July 14, 1980, which has been numbered document 13 in the record.

Later in this brief there is a reference to a transcript of another portion

of the July 14, 1980, hearing and that transcript is numbered

document 14 in the record.

could prevent this person from getting back out

on the road.

(R. 13:10)

As reported in the Brief of Petitioner, while Jablonic

was stopped the defendant approached Jablonic’s truck.

The defendant asked Jablonic for a ride home and

Jablonic said that they had better wait to get some help to

get the car out (R. 13:12). Jablonic testified:

And then the person broke into a very slurred

conversation — “you wouldn’t get your cops”

—or something — it was very insecure and not

very controlled conversation. I was very — they

were very much concerned that I would call the

cops, and they were accusing that I was going to

call the cops. I said, “Well, I have sent the lady to

get help.”

(R. 43:12)

Jablonic said that the defendant again asked for a

ride home, and when Jablonic refused the defendant

walked away (R. 13:12).

At page 27 of the amicus curiae brief filed for the

Wisconsin Civil Liberties Union Foundation there is a

statement that the police “barged right in” the Welsh

home. There is nothing in the record to support the claim

that the police barged into the Welsh home. As indicated

at pages 10 and 11 of the Brief of Petitioner, the police

thought they had received consent to enter the home but

Mrs. Welsh denied that she had given consent. The judge

made no findings on whether the entry was consensual;

but not even Mrs. Welsh’s testimony supports a claim

that the police “barged right in” the home.

SUMMARY OF ARGUMENT

The police made a warrantless arrest of the defendant

in his home for the offense of operating a motor vehicle

while under the influence of an intoxicant. The defendant

was charged with the misdemeanor offense of operating

while under the influence (R. 3:1; J.A. 4-5).

The state understands the defendant’s argument to

be that his arrest was invalid for two reasons: first, he

was arrested for a forfeiture offense and the police can

never make a warrantless arrest of an accused in his

home for a forfeiture offense; and, second, even if a

warrantless arrest in the home could be made on the

basis of probable cause and exigent circumstances, no

exigent circumstances existed in this case.

In responding to the defendant’s arguments, the

state contends, first, that this case should be treated as

an arrest for a misdemeanor rather than for a forfeiture

offense since under the state law the defendant had to be

charged with the misdemeanor offense because he had a

prior conviction for drunk driving.*/ Second, whether the

arrest was for an offense labeled either a forfeiture or a

misdemeanor by the Wisconsin Legislature, the police

had the authority to make the warrantless entry and the

arrest was constitutionally valid as long as the police

possessed probable cause and there were exigent circum-

stances justifying their failure to obtain a warrant. This

is the same test applied by this Court in Steagald v.

United States, 451 U.S. 204, 211-12 (1981), and Payton v.

New York, 445 U.S. 573, 590, 603 (1980). Third, the

probable cause prong has been satisfied in this case and

the defendant has not challenged the fact that the police

possessed probable cause. Fourth, exigent circumstances

2/ Whether the difference between an arrest for a forfeiture offense

and an arrest for a misdemeanor offense is significant will depend

upon how this Court decides the question of the police officer's

a to arrest, a question the state discusses in section II of this

rief.

existed, i.e., the police needed to make an immediate

arrest in order to prevent the imminent destruction of

evidence because if time had been taken to obtain a

warrant the alcohol level in the defendant’s blood would

have diminished before tests could be made.

On the basis of these arguments, the state concludes

that, because the police possessed probable cause and

exigent circumstances existed, the warrantless arrest of

the defendant in his home was constitutionally valid.

ARGUMENT

I. The Defendant Was Arrested For

The Misdemeanor Offense Of

Operating A Motor Vehicle While

Under The Influence Of An Intoxi-

cant.

The defendant was arrested in his home on April 24, .

1978, for operating a motor vehicle while under the

influence of an intoxicant (R. 13:27, 38; J.A. 29, 46).

In April, 1978, a person convicted of drunk driving

for the first time could be required to forfeit not more than

$200. Sec. 346.65(2), Wis. Stats. (1975). For each subse-

quent conviction for violating the drunk driving statute

within five years, the person “shall be imprisoned not

less than five days nor more than one year and in

addition may be fined not more than $500.” Sec. 346.65(2),

Wis. Stats. (1975). Thus, under Wisconsin’s definition of a

crime, conviction for the first offense of drunk driving

was not criminal since it was punishable only by a

forfeiture; but each subsequent conviction within five

years was a crime because it was punishable by a fine or

imprisonment or both. See sec. 939.12, Wis. Stats. (1975)

(crime is an offense punishable by fine, imprisonment or

both).

The defendant has contended that he was arrested

for the first offense of drunk driving, i.e., a forfeiture

offense, because there was no evidence that at the time of

the arrest the police knew that within the previous five

years he had been convicted of drunk driving.

The defendant has stated that the question presented

in this case is whether the police can, without a warrant

and without consent, enter a suspect’s home at night to

arrest him for a nonjailable traffic offense committed

outside the presence of the police (Brief of Petitioner at

2-3).

The state submits that the defefidant is incorrect in

concluding that the arrest was made for a nonjailable

traffic offense. The state contends that, for the following

reasons, the arrest was made for a misdemeanor offense

for which the defendant, if convicted, would be required

to spend a minimum of five days in jail and for which he

could be sentenced to spend up to one year in jail.

The defendant was charged with the misdemeanor

offense of drunk driving (R. 3:1; J.A. 4-5), thereby in-

dicating that he had a prior conviction within five years.

Because the defendant had the prior conviction, he had to

be charged with the misdemeanor offense of drunk

driving; the prosecutor and the trial court had no choice.

In State v. Banks, 105 Wis. 2d 32, 39, 40, 313 N.W.2d 67, 70

(1981), the Wisconsin Supreme Court considered a later

version of sec. 346.65, Wis. Stats., which states the

penalty for drunk driving; and the court concluded that,

because the statute used the word “shall” in regard to the

punishment for subsequent offenses, the legislature in-

tended that criminal proceedings and penalties are

required for a second offense drunk driving charge

within a given five-year period. Under the rationale of

Banks, the use of the word shall in sec. 346.65(2), Wis.

Stats. (1975), which was in effect on the date of the

defendant’s arrest, required that the defendant be charged

with the criminal offense of drunk driving because he

had a prior conviction within five years.

In Banks, the Wisconsin Supreme Court pointed out

that the trial court had no discretion to treat the second

offense as anything but a misdemeanor. 105 Wis. 2d at 42,

43, 313 N.W.2d at 71, 72. In County of Walworth v.

Rohner, 108 Wis. 2d 713, 717, 324 N.W.2d 682, 684 (1982),

the Wisconsin Supreme Court said that even though the

first drunk driving offense may be charged civilly,

“subsequent offenses must be charged as crimes.’”

(Emphasis added in Rohner.) The court considered a

version of sec. 346.65, Wis. Stats., that differed from the

1975 version applicable to the defendant; but because the

court’s conclusion was based on the legislaturé’s use of

the word “shall” (Rohner, 108 Wis. 2d at 717, 324 N.W.2d

at 683), the court’s reasoning and conclusion apply tothe

1975 statute that also used the word shall to require

imprisonment for the second or subsequent offenses

within five years. This means that, because the defendant

in the instant case had a prior drunk driving conviction,

he had to be charged with the misdemeanor offense of

drunk driving. When the police officers arrested the

defendant for drunk driving, the arrest was for the

misdemeanor offense of drunk driving whether or not the

police knew of the prior conviction.

The police had probable cause to arrest the defendant

for the misdemeanor offense of drunk driving even if they

did not know of the prior conviction. The two elements of

the offense of operating while under the influence of an

intoxicant are (1) driving or operating a motor vehicle

and (2) doing so while under the influence of an intoxi-

cant. State v. McAllister, 107 Wis. 2d 532, 535, 319 N.W.2d

865, 867 (1982), and State v. Burkman, 96 Wis. 2d 630,

644, 292 N.W.2d 641, 647-48 (1980). Those two elements

constitute the conduct prohibited by the drunk driving

stdtute, which was sec. 346.63(1), Wis. Stats. (1975).

Those are the only facts the police must know about the

accused in order to have probable cause to believe that

the accused violated the drunk driving statute.

The penalty for violating sec. 346.63(1), Wis. Stats.

(1975), was specified in a different statute, sec. 346.65,

Wis. Stats. (1975), which provided that the first offense

carried a forfeiture penalty and that subsequent offenses

within five years must be penalized by imprisonment and

possibly a fine. The graduated penalty structure in sec.

346.65, Wis. Stats., “is nothing more than a penalty

enhancer similar to the repeater statute which does notin

any way alter the nature of the substantive offense, i.e.,

the prohibited conduct, but rather goes only to the

question of punishment.” McAllister, 107 Wis. 2d at 535,

319 N.W.2d at 867.

Therefore, when the police had probable cause to

believe that the defendant had operated a motor vehicle

while under the influence of an intoxicant, the police had

probable cause to believe that the defendant had com-

mitted a crime in violation of sec. 346.63(1), Wis. Stats.

(1975). Because the defendant had the prior conviction

his conduct constituted the crime whether or not the

police knew of the prior conviction.

The instant case is similar to United States ex rel.

LaBelle v. LaVallee, 517 F.2d 750 (2d Cir. 1975), cert.

denied, 423 U.S. 1062 (1976). In that case, the officers

thought they had a valid warrant to arrest the accused

for a misdemeanor. The court held the warrant invalid

but ruled that the arrest was still valid simply because

the facts known by the police constituted probable cause

to believe that the accused had committed a felony. Thus,

in LaBelle, the arrest was valid because the facts known

by the police constituted a felony. It made no difference to

the validity of the arrest that the police did not realize

they had knowledge of a felony; in fact, they believed the

arrest was for a misdemeanor.

In the instant case, then, the defendant was arrested

for the misdemeanor offense of drunk driving. Whether

the police knew of the defendant’s prior conviction is

irrelevant to the question of the validity of the arrest. As

the state will argue in the next section of this brief, the

arrest was valid whether the defendant was arrested fora

forfeiture offense or for a misdemeanor. But if it makes a

difference whether the defendant was arrested for a

forfeiture or a misdemeanor, for the reasons discussed

above, this Court must treat the arrest as being for a

misdemeanor. Because of the defendant’s prior convic-

tion, he had to be charged with the misdemeanor offense;

and the penalty had nothing to do with the elements of

the offense, as the Wisconsin Supreme Court ruled in

McAllister, 107 Wis. 2d at 535, 319 N.W.2d at 867.

In its opinion in this case, the Wisconsin Supreme

Court treated the arrest of the defendant as being for the

forfeiture offense. In doing so, the court apparently acted

on a belief that knowledge of the defendant’s prior

conviction was relevant to probable cause. However, this

was erroneous since the penalty provision is not pertinent

to the elements of the offense, as the supreme court said in

McAllister, 107 Wis. 2d at 535, 319 N.W.2d at 867. See also

Banks, 105 Wis. 2d at 42,313 N.W.2d at 71.3/ This Court is

not required to accept the Wisconsin Supreme Court’s

erronéous-belief that the arrest was for a forfeiture. This

Court can independently evaluate the facts and circum-

stances known to the police officer; and if those facts

show probable cause for a misdemeanor, then this Court

should treat the arrest as being for a misdemeanor. See

United States v. Bonds, 422 F.2d 660, 664 (8th Cir. 1970).

‘/ In the instant case, the state was not able to rely on the

McAllister opinion for support in the state courts because the

McAllister case was decided after the Welsh case was briefed and

argued. See the dates listed on the title pages of the opinions in State v.

Wetsh, 108 Wis. 2d 319, 321 N.W.2d 245 (1982), and McAllister, 107 Wis.

2d at 532, 319 N.W.2d at 865.

In summary, because the defendant had a prior

conviction within five years, he had to be charged with

the misdemeanor offense of drunk driving for his arrest

on April 24, 1978. As will be noted later in this brief, the

police had probable cause to believe that the defendant

had violated the drunk driving statute. Therefore, when

the police arrested the defendant, the arrest was for a

misdemeanor offense even if the police did not know of

the prior conviction.

II. Whether The Defendant Was

Arrested For A Misdemeanor Or

A Forfeiture Offense, The Arrest

Was Valid If The Police Had Prob-

able Cause To Believe He Com-

mitted The Offense Of Drunk

Driving And Exigent Circum-

stances Existed To Justify Their

Failure To Obtain A Warrant.

In Payton, this Court ruled that in the absence of

consent or exigent circumstances a warrant is needed to

enter the residence of an accused to arrest him. 455 U.S.

at 590, 603. See also Steagald, 451 U.S. 211-12.

Payton involved a warrantless entry to make a

felony arrest; but the state contends that the same rules

apply for arrests for all offenses, whether they are labeled

felony, misdemeanor or forfeiture, as long as the offense

could be classified as a crime within the limits of the

Eighth Amendment of the United States Constitution.

This rule will result in a uniform application of the

constitution in all the states.

Applying the Payton test to the instant case, the

Wisconsin Supreme Court held that the arrest of the

defendant in his home was valid because the police

possessed information that gave them probable cause to

believe that the defendant was guilty of drunk driving,

and exigent circumstances existed because absent an

immediate arrest evidence would be destroyed by the

dissipation of the alcohol in the defendant’s blood.

The defendant contends that without a warrant the

police cannot constitutionally arrest an accused person

in his home for a misdemeanor crime or a forfeiture

offense because the common law rules of arrest were

made part of the United States Constitution by the

adoption of the fourth amendment; and under the common

law a police officer could not make a warrantless arrest

for a misdemeanor, even in a public place, unless the

misdemeanor was committed in his presence. The defend-

ant contends that because he did not commit the offense

of drunk driving in the presence of an officer, he Could not

constitutionally be arrested even for the misdemeanor

offense of drunk driving and even in a public place.

Therefore, he concludes that without a warrant the police

could not constitutionally arrest him in his home for the

forfeiture offense of drunk driving.

As argued above, the state contends the defendant

was arrested for the misdemeanor offense of drunk

driving. Nevertheless, whether the arrest was for the first

offense of drunk driving (a forfeiture offense) or a subse-

quent offense of drunk driving (a misdemeanor offense)

is not important for purposes of determining the consti-

tutionality of the arrest. In either event, the arrest was

valid. The reasons for the validity of the arrest can be

summarized as follows:

First, the common law distinction between arrests

for misdemeanors and arrests for felonies was not adopted

by the fourth amendment. Thus, the constitutional limits

on the rules for arrest are the same for all crimes and the

states are free to enact laws giving the police the same

powers to arrest for forfeiture offenses and misdemeanors

as for felonies. If the fourth amendment permits arrests

only for crimes, the word “crime” should be defined in

terms of the eighth amendment, i.e., any conduct that

could be prohibited as a crime within the limits of the

eighth amendment should be considered a crime for

purposes of fourth amendment rules of arrest and search

and seizure. This will insure uniform constitutional

rights throughout the country. Because drunk driving

can be classified as a crime within the limits of the eighth

amendment; and because the constitutional rules for

arrest are the same for all crimes; the constitutionality of

the arrest of the defendant is tested by the standards

adopted in Payton. Under those standards, the defend-

ant’s arrest was valid because the police possessed

probable cause and exigent circumstances existed.

Second, in the alternative, if this Court concludes

that the constitution preserved the common law distinc-

tion between misdemeanor arrests and felony arrests, for

purposes of constitutional rules, the distinction still

should be made in terms of the eighth amendment. In

other words, for purposes of fourth amendment rules of

arrest, a felony would be any offense that could be

classified a felony under the eighth amendment. In the

instant case, because drunk driving can be classified a

felony under the eighth amendment, the rules of felony

arrest would apply to the defendant’s arrest regardless of

whether the offense was labeled forfeiture or misde-

meanor by the Wisconsin Legislature. Under the rules

applicable to felony arrests, the arrest of the defendant in

his home was valid because the police possessed probable

cause and exigent circumstances existed.

Under either theory, it is important to use the eighth

amendment to define the level of the offense for purposes

of the fourth amendment rules of arrest so that application

of the fourth amendment is consistent throughout the

country. Constitutional rights should not be determined

by the label a particular state affixes to prohibited

conduct.

Third, if this Court concludes that the constitution

preserved the common law distinctions between mis-

demeanor arrests and felony arrests and that the local

legislature’s label of felony or misdemeanor is controlling,

the arrest of the defendant is valid because all warrant

requirements have allowed exceptions to the rule. The

state admits that usually a warrant is needed to enter a

home to arrest the accused. However, typically warrants

are not required where exigent circumstances exist. In

this case, the exigent circumstances exception applies

whether the arrest was for a misdemeanor or a forfeiture.

A. The common law rules of arrest

were not made part of the constitu-

tion by the adoption of the fourth

amendment.

The defendant argues that Payton and United States

v. Watson, 423 U.S. 411 (1976), “recognized that the

common law rules of arrest had been carried into the

fourth amendment guarantees against unreasonable

searches and seizures, i.e., a warrantless arrest not

permitted by the common law was constitutionally

unreasonable.” (Brief of Petitioner at 32.)

The state submits that the defendant is incorrect

because the state does not believe that the common law

rules of arrest were made part of the constitution by the

adoption of the fourth amendment; at least the common

law distinctions between felony arrests and misdemeanor

arrests were not made part of the constitution.

The common law distinguished between felonies and

misdemeanors by allowing officers to make warrantless

arrests for felonies in public places on the basis of °

probable cause even if the felony was not committed in

the officer’s presence; however, in the case of a misde-

_ meanor, the officer could make a warrantless arrest in a

public place only if the offense was committed in the

presence of the officer. Watson, 423 U.S. at 418, 419.

In Watson, this Court held that it was constitutional

for the police to arrest a person in a public place if the

police officer simply had probable cause to believe that

the accused had committed a crime. 423 U.S. at 415, 423-

24. The crime involved in Watson was a felony. 423 U.S.

at 413 n.2, 415.

Justice Marshall dissented in Watson because he

believed that, unless exigent circumstances existed, a

warrant should be required to arrest a person in a public

place. 423 U.S. at 435, 451. Justice Marshall believed that

the majority of the Court in Watson eliminated the

common law rules of arrest:

Second, by paying no attention whatever to the

substance of the offense, and considering only

whether it is labeled “felony,” the Court, in the

guise of ‘“‘constitutionalizing” the common-law

rule, actually does away with it altogether,

replacing it with the rule that the police may,

consistent with the Constitution, arrest on

probable cause anyone who they believe has

committed any sort of crime at all. Certainly

this rule would follow if the legislatures re-

denominated all crimes as “felonies.” As a

matter of substance, it would seem to follow in

any event from the holding of this case, for the

Court surely does not intend to accord constitu-

tional status to a distinction that can be readily

changed by legislative fiat.

423 U.S. at 545-55 (footnote omitted).

If Justice Marshall is correct, the constitution makes

no distinction between a misdemeanor and a felony in

regard to the authority of the police to arrest in a public

place. Because each is a crime, the arrest for either a

misdemeanor or a felony can be made in a public place as

long as the officer has probable cause. It makes sense to

treat all crimes the same under the constitution. If the

constitution treated the officer’s arrest authority differ-

ently depending on whether the crime was a felony or a

misdemeanor, the state legislatures could effectively

alter the accused’s constitutional rights simply by

changing the label attached to the crime or by redefining

what they choose to call a felony. See, e.g., sec. 939.60,

Wis. Stats. (1981), which defines felony as a crime

punished by imprisonment in the Wisconsin state prisons.

Justice Marshall must be correct in concluding that

the constitution makes no distinction between police

authority to make a misdemeanor arrest and the authority

to make a felony arrest because, if the constitution made

the distinction, it would sanction the paradox whereby

states could indirectly grant the police greater arrest

authority simply by classifying all crimes as felonies, but

they could not directly grant the police greater authority

by passing a law saying that the arrest authority for

misdemeanors was the same as for felonies. Such a

situation is avoided if the fourth amendment treats all

offenses alike and permits the states to establish the

arrest authority either directly or indirectly, as they

choose. Wisconsin chose to take the direct route by

authorizing the police to make arrests in traffic cases and

misdemeanor cases on the basis of probable cause, the

same standard applied in felony cases. See sec. 345.22,

Wis. Stats. (1975), and sec. 968.07, Wis. Stats. (1975).

In Payton, this Court ruled in the context of a felony

case that in the absence of consent or exigent circum-

stances the police need an arrest warrant to enter the

accused’s home to arrest him. 455 U.S. at 590, 603. See

also Steagald, 451 U.S. at 211-12. Payton has been

interpreted to permit a warrantless home entry to arrest

the accused if police have probable cause and if exigent

circumstances exist. Welsh, 108 Wis. 2d at 327, 321

N.W.2d at 250.

The state submits that, asin a public place where the

constitutional rule of arrest is the same for a misdemeanor

as for a felony, see Watson, 423 U.S. at 454-55 (Marshall,

J., dissenting), the constitutional rule for arrest in an

accused’s home should be the same for a misdemeanor as

for a felony. In the case of either type of crime, a

warrantless arrest should be valid as long as the police

possess probable cause and exigent circumstances exist.

If the constitution required standards for the arrest

of a misdemeanor different from the standards applied to

the arrest for a felony, an accused’s constitutional rights

would change from state to state depending upon the

label the various state legislatures placed on the offense.

As applied to the instant case, the constitutional rules for

entry of an accused’s home would differ in Indiana, New

York, Oklahoma and Texas where second offense drunk

driving is a felony*/ from Wisconsin where the second

offense drunk driving is a misdemeanor.°*/

To ensure a uniform constitutional rule of arrest, the

fourth amendment should treat all crimes the same.

Whether crimes are classified as felonies or misdemeanors

is largely a state matter, Argersinger v. Hamlin, 407 U.S.

25, 38 (1972); and legislative bodies may exercise a

relatively wide discretion in classifying particular

offenses as felonies or misdemeanors, United States v.

Watson, 423 U.S. at 439 n.6 (Marshall, J., dissenting),

quoting Carroll v. United States, 267 U.S. 132, 158 (1925).

However, the legislative bodies do not have unlimited

discretion in classifying offenses as misdemeanors or

felonies. The eighth amendment imposes limits on what

can be made criminal and punished as such as well as

setting limits on what offenses can be classified and

punished as felonies. Rummel v. Estelle, 445 U.S. 263,

269, 284 (1980).

4/ Ind. Code Ann. § 9-4-1-54 (Burns Supp. 1982); N.Y. Veh. & Traf.

Law § 1192(McKinney Supp. 1982-83); Okla. Stat. Ann. tit. 47, § 11-902

(West Supp. 1982-83); Tex. Veh. Code Ann. § 6701 L-2 (Vernon Supp.

1982-83).

5/ Section 346.65(2), Wis. Stats. (1975), and sec. 346.65(2), Wis.

Stats. (1981).

For the sake of uniformity under the constitution, the

fourth amendment should view all crimes the same for

purposes of search and seizure and arrest. In addition,

any offense, whether a violation of federal or state or

local laws, should be considered a crime for purposes of

the fourth amendment if the offense could be classified as

a crime within the limits of the eighth amendment.

Under this approach, all the constitutional limits govern-

ing arrest and search and seizure will be contained

within the four corners of the constitution where they

cannot be altered by statutory changes. The limits will be

set by the fourth and eighth amendments. Although

states could still set tighter limits on the police officer's

authority to arrest, the tighter limits would be based on

state laws and constitutions; the different limits would

not be a result of states altering federal constitutional

rights through the labeling of offenses.

Under this approach, individuals do not lose any

constitutional right that they already have. States have

always been able to make any offense a crime and any

crime a felony as long as the eighth amendment has been

satisfied. After an offense has been classified a felony,

the police have been able to enter the accused’s home to

make a warrantless arrest as long as the police had

probable cause and exigent circumstances.

Under the approach suggested by the state in this

brief, the constitution will recognize uniform police arrest

authority regardless of the label the legislature attaches

to the offense. The constitutional limits on the police

officer’s arrest authority will be based solely on the limits

contained in the constitution and will not be based in part

on the vagaries of state legislatures.

Under this approach, the police could enter the

defendant's home if they had probable cause and exigent

circumstances. This is so because under the eighth

amendment drunk driving can be classified as a crime.

Indeed, most states classify drunk driving as at least a

misdemeanor.®/ Several states classify second or sub-

sequent offenses of drunk driving as felonies.’ /

The approach to arrest and search and seizure

problems suggested by the state provides a system of

uniform rights under the constitution. Under this

analysis, a person’s constitutional rights do not change

depending upon the labe! a state legislature places on an

offense.

If the common law rules of arrest were not made part

of the constitution, the various states by statute and state

constitution can set different limits on the arrest authority

of the police; but the United States constitutional limits

and rights will not thereby be changed. Under the

common law, the police officer did not have authority to

arrest for a misdemeanor not committed in his presence.

The states by statute or by state constitution should have

*/ In the following states and the District of Columbia, the first

conviction for drunk driving is punished as a misdemeanor:

Ala. Code § 32-5A-191 (Supp. 1982)

Alaska Stat. § 28-35-030 (Supp. 1982)

Ariz. Rev. Stat. Ann. § 28-692 (Supp. 1982-1983)

Ark. Stat. Ann. § 75-1027 (1979)

Cal. Veh. Code § 23152 (Deering Supp. 1983)

Conn. Gen. Stat. § 14-227(a) (1983)

Del. Code Ann. tit. 21, § 4177 (Supp. 1983)

Fla. Stat. Ann. € 316.193 (West Supp. 1983)

Ga. Code Ann. § 68A-902 (Supp. 1982)

(footnote continued)

’/ Drunk driving is classified a felony in the following states: Ind.

Code Ann. § 9-4-1-54 (Burns Supp. 1982), second offense; lowa Code

Ann. § 321.281 (West Supp. 1982-1983), third and subsequent offenses;

Mich. Comp. Laws Ann. § 257.625 (Supp. 1982-1983), third offense

within ten years; Mo. Ann. Stat. § 577.023 (Supp. 1983), third offense

within three years; N.Y. Veh. & Traf. Law § 1192 (McKinney Supp.

(182-1983), second offense within ten years; Okla. Stat. Ann. tit. 47, §

11-902 (West Supp. 1982-1983), second offense; S.D. Codified Laws

Ann. § 32-23-4 (1976), third and subsequent offenses; and Tex. Veh.

Code Ann. § 6701L-2 (Vernon Supp. 1982-1983), second offense.

the power to alter the common law arrest authority of

police officers. Typically, the common law can be changed

by statute or state constitution. See Silver v. Silver, 280

U.S. 117, 122(1929), and Noble State Bank v. Haskell, 219

U.S. 104, 113 (1911). The common law rule of arrest

should not be an exception. In Payton, this Court pointed

out that the common law rule of arrest developed in legal

contexts that substantially differ from the cases arising

today. 445 U.S. at 591. In Steagald, this Court said in 451

U.S. at 217 n.10:

The significance accorded to such authority

[referring to the common law as being instructive

by determining what sort of searches and

seizures the framers of the fourth amendment

regarded as reasonable], however, must be kept

in perspective, for our decisions in this area

have not “simply frozen into constitutional law

Hawaii Rev. Stat. § 291-4 (Supp. 1982) ‘

Idaho Code § 49-1102 (1980)

Ill. Ann. Stat. ch. 95 1/2, § 11-501

(Smith-Hurd Supp. 1982-1983)

Ind. Code Ann. § 9-4-1-54 (Burns Supp. 1982)

lowa Code Ann. § 321.281 (West Supp. 1982-1983)

Kan. Stat. Ann. § 8-1567 (1982)

La. Rev. Stat. Ann. § 14.98 (West Supp. 1983)

Me. Rev. Stat. Ann. tit. 29, § 1312B (Supp. 1982-1983)

Md. Transp. Code Ann. § 21-902 (Supp. 1982)

Mich. Comp. Laws Ann. § 257.625 (Supp. 1982-1983)

Minn. Stat. Ann. § 169.121 (West Supp. 1983)

Miss. Code Ann. § 63-11-30 (Supp. 1982)

. Ann. Stat. § 577.010 and § 577.012 (Supp. 1983)

. Veh. & Traf. Law § 1192( Supp. 1982-1983)

. Cent. aa ange (Supp. 1981)

. Code Ann. § 4511.19 (Page Supp. 1982)

tit. 47, § 11-802 (West Supp. 1982-1983)

snecaiete

eer:

Fee:

those enforcement practices that exited at the

time of the fourth amendment’s passage.”

Payton v. New York, 445 U.S. at 591 n.33. The

common-law rules governing searches and

arrest evolved in a society far simpler than ours

is today. Crime has changed, as have the means

of law enforcement, and it would therefore be

naive to assume that those actions a constable

could take in an English or American village

three centuries ago should necessarily govern

what we, as a society, now regard as proper. C7.

Katz v. United States, 389 U.S. 347, 352-353

(1967). Instead, the amendment’s prohibition

against “unreasonable searches and seizures”

must be interpreted “in light of contemporary

norms and conditions.”” Payton v. New York,

supra, at 591 n.33.

Several courts have already concluded that the

common law rules of arrest are not part of the United

States Constitution and that the states are therefore free

to alter the common law and to give police the same

authority to arrest for misdemeanors that they had at

common law to arrest for felonies, i.e., the authority to

arrest for a crime committed outside their presence as

long as they have probable cause. See Street v. Surdyka,

Or. Rev. Stat. § 487.540 (1981)

Pa. Cons. Stat. Ann. tit. 75, §3731 (Purdon Supp. 1983-1984)

R.I. Gen. Laws § 31-27-2 (Supp. 1982)

8.D. Codified Laws Ann. § 32-23-1 (1976)

Tenn. Code Ann. § 55-10-401 (Supp. 1982)

Tex. Veh. Code Ann. § 6701L-1 (Vernon Supp. 1982-1983)

Utah Code Ann. § 41-6-44 (Supp. 1981)

Vt. Stat. Ann. tit. 23, § 1201 (Supp. 1982)

Va. Code § 18.2-266 (1982)

Wash. Rev. Code Ann. § 46.61.515 (Supp. 1983-1984)

W. Va. Code § 17C-5-2 (Supp. 1982)

Wyo. Stat. § 31-5-229 (Supp. 1982)

D.C. Code Ann. § 40-716 (Supp. 1982)

492 F.2d 368, 371-72 (4th Cir. 1974); Diamond v. Marland,

395 F. Supp. 432 (S.D. Ga. 1975); United States v. Grosso,

225 F. Supp. 161, 170 (W.D. Pa. 1964); In the Matter of

Gardner, 39 N.C. App. 567, 251 S.E.2d 723 (1979); City of

Columbus v. Herrell, 18 Ohio App. 2d 149, 247 N.E.2d 770,

773 (1969); Commonwealth v. Levesque, 469 Pa. 118, 364

A.2d 932, 937 (1976); and State v. Berker, 391 A.2d 107

(R.I. 1978). The rationale for these decisions was explained

in Street, 492 F.2d at 371-72:

The constitutional restrictions on arrest are

derived from the fourth amendment’s prohibi-

tion of unreasonable seizures. Because the

Supreme Court has interpreted the fourth amend-

ment in light of the law that existed wheri the

Bill of Rights was adopted, see, e.g., Carroll v.

United States, 267 U.S. 132, 149-51, 45S. Ct. 280,

69 L.Ed. 543 (1925), it might be argued that the

fourth amendment incorporates the common

law’s restrictions on warrantless arrests for

misdemeanors. But the supreme court has never

given constitutional force to this element of the

common law. In Bad Elk v. United States, 177

U.S. 529, 20 S. Ct. 729, 44 L.Ed. 874 (1900), the

Court applied the common law rule but hinted

that its restrictions could be relaxed by statute.

Subsequent cases have focused entirely on the

requirement of probable cause. See Beck v. Ohio,

379 U.S. 89, 85 S. Ct. 223, 13 L.Ed.2d 142 (1964);

Henry v. United States, 361 U.S. 98, 80 S. Ct.

168, 4 L.Ed.2d 134 (1959). We do not think the

fourth amendment should now be interpreted to

prohibit warrantless arrests for misdemeanors

committed outside an officer’s presence. The

difference between felonies and misdemeanors

is no longer as significant as it was at common

. law. See Carroll v. United States, 267 U.S. 132,

158, 45 S. Ct. 280, 69 L.Ed. 543 (1925). Maryland

courts have criticized the continued use of the

common law rule as impractical and illogical,

and have invited the state legislature to adopt

new rules. Robinson v. State, 4 Md. App. 515, 243

A.2d 879 (1968). Classifications based on other

criteria could be both rational and practical. For

example, Congress has authorized warrantless

arrests on probable cause for any violation of

the federal laws pertaining to narcotics or mari-

juana. 26 U.S.C. sec. 7607. We are most reluctant

to adopt a constitutional interpretation that

would impede reform in this area. The fourth

amendment protects individuals from unfounded

arrest by requiring reasonable grounds to believe

a crime had been committed. The states are free

to impose greater restrictions on arrest, but their

citizens do not thereby acquire a greater federal

right.

(Footnotes omitted and emphasis added.)

It has been pointed out that this Court has never held

that the constitution requires a warrant to arrest for a

misdemeanor occurring out of the presence of an officer. 2

LaFave, Search & Seizure, sec. 5.1 at 231 (1978).

In Bad Elk v. United States, 177 U.S. 529 (1900),

which was referred to in Street, this Court applied the

common law rule of arrest but said it could “not find any

statute of the United States or of the State of South

Dakota giving any right to these men to arrest an

individual without a warrant on acharge of misdemeanor

not committed in their presence.” 177 U.S. at 535. The

Court, therefore, implied that it would have been consti-

tutional for the United States or South Dakota to pass the

statute giving the police officers broader arrest authority

than they had at common law.

The lawfulness of an arrest is determined by state

law insofar as the law does not violate the United States

Constitution. Ker v. California, 374 U.S. 23, 34, 37 (1963);

and Klingler v. United States, 409 F.2d 299, 302 (8th Cir.

1969). As argued up to now, the State of Wisconsin

submits that its legislature and supreme court have not

acted unconstitutionally in holding that under Wiscon-

sin’s law of arrest the police have the authority to arrest

the defendant in his home for drunken driving on the

basis of probable cause and the existence of exigent

circumstances. The arrest is constitutional because under

the fourth amendment all offenses that could be classified

as crimes can be treated the same and Wisconsin acted

constitutionally in so treating them. Therefore, it is

constitutional to judge the entry into defendant’s home

by the standard established in Payton, i.e., did the police

possess probable cause and did exigent circumstances

exist?

B. Even if the common law rules of

arrest were adopted as part of the

United States Constitution, the

arrest of the defendant was valid

because drunk driving qualifies as

a felony under the eighth amend-

ment limits.

Even if this Court concludes that the common law

distinctions between misdemeanor arrests and felony

arrests were incorporated into the constitution by the

adoption of the fourth amendment, and even if this Court

applies the rule of Payton only to offenses that could be

classified as felonies under the eighth amendment, the

police acted properly in this case because drunk driving is

a serious enough offense that under the eighth amend-

ment it could be classified as a felony.*/

On several occasions, this Court hos acknowledged

the seriousness of drunk driving.’/ In South Dakota v.

Neville, — U.S. —, 103 S. Ct. 916, 920 (1983), this Court

said:

The situation underlying this case — that of the

drunk driver — occurs with tragic frequency on

our Nation’s highways. The carnage caused by

drunk drivers is well documented and needs no

detailed recitation here.

In Mackey v. Montrym, 443 U.S. 1, 17 (1979), this

Court said:

States surely have at least as much interest in

removing drunken drivers from their highways

*/ If the Court concludes that the common law distinctions

between misdemeanors and felonies in regard to the rules of arrest

were incorporated in the constitution, the state submits that for

purposes of the fourth amendment the terms felony and misdemeanor

should still be defined by the limits set by the eighth amendment. In

other words, for the purposes of the fourth amendment, any offense

should be considered a felony if it could be classified as a felony under

the eighth amendment. Any other offense that could be classified asa

crime, but not a felony, under the eighth amendment would be a

misdemeanor. As pointed out above, this approach would ensure a

uniform application of the constitution throughout the country.

*/ The defendant in his brief contends that the Wisconsin

Legislature has determined that drunk driving is a minor offense

(Brief of Petitioner at 19). The amicus curiae brief implies that the first

offense of drunk driving in Wisconsin is not a serious offense because

it does not carry a jail penalty (Brief of Amicus Curiae at 19-20). The

state submits that the Wisconsin Legislature does not consider drunk

driving to be a minor or nonserious offense. The reason the first

offense of drunk driving is a forfeiture was explained in County of

Walworth v. Rohner, 108 Wis. 2d at 718-22. In Wisconsin, the state

constitution does not permit local governments to create crimes.

Statutes, however, authorize local governments to create ordinances

(footnote continued)

as in summarily seizing mislabeled drugs or

destroying spoiled foodstuffs.

(Footnote omitted.)

In the footnote to that statement, this Court pointed

out that in 1975 alone drunk drivers accounted for 283 of

the 884 traffic fatalities in Massachusetts; and the Court

noted that traffic deaths commonly exceed 50,000 annu-

ally in the United States and approximately one half of

these fatalities are alcohol related. Mackey, 443 U.S. at 17

n.9.

The Wisconsin Supreme Court in Welsh cited statis-

tics similar to those used in Mackey:

In 1980, 583 drivers were killed [in Wisconsin].

Of these drivers, 470 were tested for blood

alcohol content, and 269 were found to be legally

intoxicated, having a minimum blood alcohol

prohibiting drunk driving, but the penalty must be a forfeiture.In

order to treat first offense drunk drivers equally under local and state

law, the state law treats first offenses as forfeitures. Therefore, the

first offender receives the same treatment whether he is arrested by a

state or a local official. All subsequent offenses within five years must

be charged under the state law as crimes. Thus, the legislature made

first offense drunk driving a forfeiture, not because it believed the

offense to be minor, but in order to ensure equal treatment for all

persons arrested for first offense drunk driving.

The amicus curiae brief cites Baldwin v. New York, 399 U.S. 66, 68

(1970), and Duncan v. Louisiana, 391 U.S. 145, 160 (1968), as authority

for the proposition that drunk driving is not a serious offense in

Wisconsin (Amicus Curiae Brief at 20). Those cases are inapplicable to

the instant case. They were concerned with the right to a jury trial

under the sixth amendment. This case is concerned with the consti-

tutionality of arrest under the fourth amendment. The fourth amend-

ment and the sixth amendment are concerned with different interests,

Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973); and therefore,

sixth amendment cases are not necessarily controlling on fourth

amendment issues. However, to the extent that Baldwin and Duncan

are relevant to the instant case, they help the state's position. In

Baldwin, this Court concluded that for purposes of an accused being

entitled to a jury trial a “serious offense” is one in which the accused

content of .10 percent. 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).

Welsh, 108 Wis. 2d at 335 n.9, 321 N.W.2d at 253 n.9.

In Breithaupt v. Abram, 352 U.S. 432, 439 (1957), this

Court said in the context of a case where a driver was

tested for intoxication:

Modern community living requires modern

scientific methods of crime detection lest the

public go unprotected. The increasing slaughter

on our highways, most of which should be

avoidable, now reaches the astounding figures

only heard of on the battlefield.

(Footnote omitted.)

In State v. Jennings, 112 Ohio App. 455, 176 N.E.2d

304, 307 (1959), the court said that an automobile becomes

a dangerous instrument when it is being operated by one

under the influence of intoxicating liquor and, when so

operated, the automobile becomes a public menace.

Justice Marshall was reported to have made a

comment in the oral argument in Solem v. Helm, 33 Crim.

L. Rptr. 4003 (No. 82-492, argued March 29, 1983), that

was similar to that made by the Ohio court. Justice

Marshall was quoted as saying that a defendant’s “drunk

driving conviction is close to a violent act; he was lucky

that something serious didn’t happen. A lot of states

recognize cars as dangerous weapons.” 33 Crim. L. Rptr.

4005.

faces a possible sentence of imprisonment of more than six months. In

the instant case, the defendant was arrested and charged with the

second offense of drunk driving and faced a possible jail sentence of

one year. See sec. 346.65(2), Wis. Stats. (1975). Therefore, under the

cases cited in the amicus curiae brief, the defendant was arrested for a

serious offense.

In the instant case, the defendant was fortunate that

his drunk driving did not result in an accident. Jablonic

testified that the defendant was driving in the wrong

lane of traffic and at the last moment veered off the

highway avoiding a head-on collision when another car

was approaching (R. 13:9)

Because the eighth amendment would permit a state

to classify drunk driving as a crime, even a felony, the

fourth amendment should allow a person to be arrested in

his home for drunk driving on the basis of probable cause

and exigent circumstances. The limits imposed by the

United States Constitution should be the same through-

out the country. What a police officer can do constitu-

tionally in Wisconsin should be the same that he can do

constitutionally in Texas, New York, Oklahoma and

Indiana. Also, the accused persons should have the same

rights under the constitution in Texas, New York,

Oklahoma and Indiana as in Wisconsin.

C. Evenifthe United States Constitu-

tion adopted the common law rules

of arrest, and even if the labels

placed on the offenses by the local

legislatures are controlling, the

arrest in the instant case was

valid.

Even if this Court concludes that the common law

rules of arrest were made part of the constitution by the

adoption of the fourth amendment and that the label

placed on conduct by local legislatures determines

whether the offense is a forfeiture, misdemeanor or

felony for constitutional purposes, the arrest of the

defendant in the instant case is valid. This is so because

this Court has recognized an exception to the warrant

requirement when exigent circumstances exist. This

exception applies to arrests for forfeitures and misde-

meanors as well as to arrests for felonies.'°/ In addition,

this Court has approved the warrantless entry into a

home to search for evidence in the case of a misdemeanor.

Decisions from this Court have indicated that the

test for the warrantless entry into a home under the

fourth amendment is the same for misdemeanors as for

felonies — in either case the warrantless entry is valid as

long as the police possess probable cause and exigent

circumstances exist. When the crime is considered a

felony, Payton is authority for entry to arrest based on

probable cause and exigent circumstances. When the

crime is a misdemeanor, Camara v. Municipal Court, 387

U.S. 523 (1967), provides authority to enter to arrest on

the basis of probable cause and exigent circumstances.

In Camara, the Court considered whether a building

inspector needed a warrant to enter a residence to check

for building code violations when the resident refused to

10/ The defendant has argued that a warrantless entry cannot be

made at night to make an arrest for a minor offense. The state

contends that, when the police possess probable cause and exigent

circumstances exist, the warrantless entry can be made regardless of

the time of day or the degree of the offense. Fox wupport for his

argument, the defendant cites Justice White’s dissenting opinion in

Payton, which suggests that warrantless felony arrests be allowed in

the home in the daytime. The state submits that the defendant’s

argument is incorrect for at least two reasons. First, drunken driving

is not a minor offense. Second, the state submits that the defendant

has misread the comment by Justice White, who said in Payton, 445

U.S. at 616:

Today’s decision ignores the carefully crafted restrictions

on the common-law power of arrest entry and thereby

overestimates the dangers inherent in that practice. At

common law, absent exigent circumstances, entries to

arrest could be made only for felony. Even in cases of

felony, the officers were required to announce their

presence, demand admission, and be refused entry before

they were entitled to break doors. Further, it seems

generally accepted that entries could be made only during

daylight hours. And, in my view, the officer entering to

(footnote continued)

give consent for the entry. A violation of the code

constituted a misdemeanor. See 387 U.S. at 527 n.2. This

Court decided that normally search warrants are needed

to enter the residence to check for code violations, 387

U.S. at 534; but the Court said its decision did not

foreclose warrantless inspection in emergency situations,

387 U.S. at 539. The Court decided that the warrantless

entry in the Camara case was invalid because there was

no emergency demanding immediate access. 387 U.S. at

540.

Camara is important to the instant case because in

Camara this Court indicated that the warrantless entry

of a residence in an emergency situation to search for

evidence of a misdemeanor was constitutional. In Payton

and Steagald, this Court said that under the fourth

amendment the same rules apply to arrest that apply to

searches and seizures. Payton, 455 U.S. at 585, 588-89,

arrest must have reasonable grounds to believe, not only

that the arrestee has committed a crime, but also that the

person suspected is present in the house at the time of

entry.

(Emphasis added; footnotes omitted.)

The defendant cites this statement to support his argument that

nighttime warrantless arrests are invalid.

The state submits that Justice White’s comment supports its

position. As the state understands the Payton decision, Justice White

dissented because he felt that the police should be able to make

warrantless entries into a suspect’s home to arrest him, even in the

absence of exigent circumstances, as long as the officers announce

their presence, demand admission, enter only in daylight and have

probable cause to arrest for a felony. The state understands this to

mean that when there are exigent circumstances, most of the require-

ments do not have to be satisfied; i.e., in the case of exigent

circumstances, the entry does not have to be announced, the entry can

be made at night, and the arrest can be made for a misdemeanor.

However, probable cause is always required.

Under this interpretation of Justice White’s comments, the entry

into the defendant’s home was constitutional because the police had

probable cause and exigent circumstances existed.

590; Steagald, 451 U.S. at 212. Therefore, if under Camara

an officer can make a warrantless entry in an emergency

situation to search for evidence of a misdemeanor, the

officer can make a warrantless entry in an emergency

situation to arrest for a misdemeanor, if the officer has

probable cause. Thus, the same rule of arrest applies to

misdemeanors and felonies alike. Under Camara and

Payton, the officer can enter a home to make a warrantless

arrest as long as he possesses probable cause and exigent

circumstances exist.!!/

This rule is no more than an application of the usual

exception to the warrant requirement. The state does not

dispute that normally an officer needs an arrest warrant

to arrest an accused person in his home for any offense,

whether it is a felony, misdemeanor or forfeiture. How-

ever, exigent circumstances typically constitute an

exception to the warrant requirement. Watson, 423 U.S.

at 431 (Powell, J., concurring), and Watson, 423 U.S. at

435, 437 (Marshall, J., dissenting). Therefore, the State of

Wisconsin is not asking this Court to expand the authority

of police officers in order to rule that the arrest in the

instant case is valid. The state is only asking the Court to

apply the usual rule that warrantless action is valid

when exigent circumstances exist and the police possess

probable cause.

The arrest of the defendant is valid even if this Court

believes that the defendant was arrested for a forfeiture

offense of drunk driving rather than a misdemeanor

offense. In a forfeiture case, an accused is entitled to the

same fourth amendment protection asin a criminal case.

One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693,

697-98 (1965). Quoting from Boyd v. United States, 116

'!/ An entry into a home to make an arrest for a misdemeanor was

approved in State v. Niedermeyer, 48 Or. App. 665, 617 P.2d 911, 913

(1980), cert. denied, 450 U.S. 1042 (1981), on the ground that the police

possessed probable cause and exigent circumstances existed. In

Niedermeyer, hot pursuit qualified as the exigent circumstance.

U.S. 616, 633-34 (1886), this Court said that suits for

forfeiture “‘are within the reason of criminal proceedings

for all the purposes of the fourth amendment of the

Constitution.’”” One Plymouth Sedan, 380 U.S. at 697-98.

The state submits that in the forfeiture proceeding the

accused is entitled to the same fourth amendment rights

he receives in a criminal proceeding; but that he is not

entitled to any more fourth amendment rights. Therefore,

the rules of arrest applicable to crimes under the fourth

amendment are the same for forfeitures; and the entry of

the home is valid if the police possessed probable cause

and exigent circumstances existed.

To summarize, under any of the theories used by the

state above, for the purposes of a constitutional challenge

it makes no difference whether the defendant was arrested

for an offense that was labeled as a forfeiture or a

misdemeanor under Wisconsin law at the time. The

arrest was valid under the fourth amendment if at the

time of the arrest the police possessed probable cause to

believe the defendant had committed an offense and

exigent circumstances existed to justify the failure to

obtain a warrant. The state submits that both require-

ments were satisfied in this case.

III. At The Time Of The Arrest, The

Police Possessed Probable Cause

To Arrest The Petitioner For The

Offense Of Operating A Motor

Vehicle While Under The Influ-

ence Of An Intoxicant.

The defendant was arrested in his home for operating

a motor vehicle while under the influence of an intoxicant

(R. 13:38; J.A. 46).

_ The elements of that offense are that the accused (1)

drove or operated a motor vehicle and (2) that he did so

while under the influence of an intoxicant. McAllister,

107 Wis. 2d at 535, 319 N.W.2d at 867.

The Wisconsin Supreme Court found that the police

had probable cause to arrest the defendant. Welsh, 108

Wis. 2d at 329-35, 321 N.W.2d at 251-54. In this Court, the

defendant has not challenged that conclusion of the

Wisconsin Supreme Court. Therefore, in this Court there

is no question that the police had probable cause to arrest

the defendant. The first requirement of a valid warrant-

less arrest has been satisfied.

IV. Exigent Circumstances Existed To

Justify The Warrantless Arrest

Of The Defendant.

The Wisconsin Supreme Court found that for three

reasons exigent circumstances existed to justify the

immediate, warrantless arrest of the defendant in his

home. The circumstances cited by the Wisconsin Supreme

Court were hot pursuit, the imminent threat to safety

doctrine and the probable destruction of evidence. Welsh,

108 Wis. 2d at 336-39, 321 N.W.2d at 254-55.

A. Hot pursuit.

This Court has long recognized that “hot pursuit”

cases fall within the exigent circumstances exception to

the warrant requirement. Steagald, 451 U.S. at 218; United

States v. Santana, 427 U.S. 38, 43 (1976); and Warden v.

Hayden, 387 U.S. 294 (1967).

In Santana, this Court said that hot pursuit involves

some sort of a chase. 427 U.S. at 43. However, some cases

since Santana have justified warrantless entries even

though the police did not chase the accused persons into

the homes. In these cases the offenses were quickly

reported to the police who acted on the basis of informa-

tion received from witnesses and arrived at the suspects’

homes within minutes of the commission of crimes.

United States v. Stubblefield, 621 F.2d 980, 982-83 (9th

Cir. 1980), and People v. Baca, 198 Colo. 399, 600 P.2d 770,

772(1979). Two other cases have approved the warrantless

entries of homes to arrest suspects for misdemeanors

when the police possessed probable cause and hot pursuits

satisfied the exigent circumstance requirement. State v.

Penas, 200 Neb. 387, 263 N.W.2d 835 (1978), and Nieder-

meyer, 617 P.2d at 913.

In Welsh, the Wisconsin Supreme Court said that the

hot pursuit doctrine has evolved to encompass situations

where time was of the essence, i.e., where requiring the

police to obtain a warrant would constitute undue delay.

108 Wis. at 336, 321 N.W.2d at 254. This analysis is

consistent with the approach used by the courts in

Stubblefield and Baca.

The Wisconsin Supreme Court pointed out that the

defendant, “fearful of the officer’s impending arrival and

recognizing the possibility of being requested to submit

to a blood alcohol test, left the scene of the accident upon

discovering that the officer had been summoned.” 108

Wis. 2d at 336, 321 N.W.2d at 254. Randy Jablonic had

testified that when the defendant approached his truck

Jablonic refused to give him a ride home and told him to

wait to get help to get the car out (R. 13:12). Jablonic then

testified that the defendant was concerned that he

(Jablonic) would call the cops. (R. 13:12).

The defendant left Jablonic and walked to his home.

The police arrived at the accident scene, talked to Jablonic

and went to the defendant’s home. The trial court con-

cluded that the police arrived at the defendant’s home

within ten minutes of the defendant leaving the accident

scene (R. 14:35; J.A. 79).

* Emphasizing the importance of quick action by the

police, the Wisconsin Supreme Court said that if the

officers had retreated to obtain a warrant “rather than

immediately pursuing and arresting the suspect, the

requirements of the blood alcohol statutes would have

been frustrated.” Welsh, 108 Wis. 2d at 336, 321 N.W.2d at

254.

The hot pursuit doctrine applied to these facts where

the defendant left the accident scene when he learned

that the police had been called and where the police

responded quickly to the call for assistance and were able

to reach the defendant’s home within ten minutes of his

leaving the accident scene. As noted by the Wisconsin

Supreme Court, time was of the essence because the

police had to preserve evidence of the defendant’s level of

alcohol consumption. This required quick action by the

police and justified the hot pursuit. As will be discussed

later, the need to prevent the destruction of evidence also

supplied an independent ground for finding the existence

of exigent circumstances. However, that ground was in

addition to the hot pursuit.

B. Theimminent threat to safety.

The Wisconsin Supreme Court also justified the

warrantless arrest of the defendant on the ground that

prompt action by the police prevented ‘“‘the driver from

returning to his car, or another automobile, where he

could have continued to drive in his current state posing a

danger to himself and the public.”” Welsh, 108 Wis. 2d at

337, 321 N.W.2d at 255. The Wisconsin court concluded

that the nature of the offense, coupled with the potential

threat to public safety, satisfied the exigent circumstances

test pursuant to the imminent threat to safety doctrine.

108 Wis. 2d at 337-38, 321 N.W.2d at 255.

In State v. Martin, 275 S.C. 141, 268 S.E.2d 105, 107

(1980), the South Carolina Supreme Court said a police

officer was justified in making a warrantless arrest of a

suspected drunken driver at an accident scene because

“la]n intoxicated person who has just been in an accident

and who still has the opportunity to operate his vehicle

presents a clear and present danger to the community.”

Thus, the South Carolina Supreme Court also recognized

that the danger posed by a drunk driver returning to his

car and driving can justify action by the police that

might otherwise be illegal.

In the instant case, the defendant contends that he

posed no danger to the community because he had

returned home, undressed and gone to bed. However, in

making this argument the defendant forgets that this

Court must be concerned with information known to the

police officer, not the facts known by the defendant.

When the police officers entered the defendant’s home

there was no way for them to know that he was in bed. For

all the officers knew, the defendant was prepared to walk

the short distance to his car to retrieve it from the

cemetery and to continue driving about the city in his

intoxicated condition. Therefore, the fact that the defend-

ant was in bed cannot defeat an otherwise valid reason

for the police to act in the interest of defusing a threat to

public safety.

C. Prevention of the destruction of

evidence.

The final reason the Wisconsin Supreme Court gave

for finding that exigent circumstances existed was that

an immediate arrest was needed to prevent the probable

destruction of evidence. 108 Wis. 2d at 338, 321 N.W.2d at

255. The court noted that alcohol rapidly metabolizes in

the blood after a person stops drinking and “[w]ithout an

immediate blood alcohol test, highly reliable and per-

suasive evidence facilitating the state’s proof of the

defendant’s alleged violation” of the drunk driving law

would be destroyed. 108 Wis. 2d at 338, 321 N.W.2d at 255.

The state submits that the prevention of the imminent

destruction of evidence provides the strongest reason for

finding that in the instant case exigent circumstances

existed to justify the warrantless entry of the defendant’s

home to arrest him.

This Court has recognized that the threat of the

removal or destruction of evidence, when coupled with

probable cause, justifies a warrantless entry of a suspect’s

home to arrest or to search. Michigan v. Tyler, 436 U.S.

499, 509 (1978); United States v. Santana, 427 U.S. 38, 43

(1976); Vale v. Louisiana, 399 U.S. 30, 35(1970); McDonald

v. United States, 335 U.S. 451, 455 (1948); and Johnson v.

United States, 333 U.S. 10, 15 (1948).

In Schmerber v. California, 384 U.S. 757, 770-71

(1966), this Court ruled that the diminishing of the

percentage of alcohol in the blood that begins shortly

after drinking stops justified the warrantless seizure of a

blood sample from a suspected drunken driver. The Court

ruled that this threatened destruction of evidence posed

an emergency that justified the warrantless action. 384

U.S. at 770-71. Numerous other courts have agreed with

Schmerber that the loss of alcohol from the blood con-

stitutes an exigent circumstance that permits the warrant-

less seizure of evidence. United States v. Harvey, 701 F.2d

800, 803 (9th Cir. 1983); People v. Rodriguez, 645 P.2d 857,

860 (Colo. Ct. App. 1982); State v. Williams, 417 So. 2d

755, 756 (Fla. Ct. App. 1982); People v. Bell, 41 Ill. App. 3d

233, 355 N.E.2d 38, 40-41 (1976); DeVaney v. State, 259

Ind. 483, 288 N.E.2d 732, 735 (1972); Pollard v. State, 439

N.E.2d 177, 182, 183 (Ind. Ct. App. 1982); Shultz v. State,

417 N.E.2d 1127, 1138 (Ind. Ct. App. 1981); State v.

Oevering, 268 N.W.2d 68, 72 (Minn. 1978); Gregg v. State,

374 So. 2d 1301, 1303-04 (Miss. 1979); State v. Campbell,

615 P.2d 190, 196 (Mont. 1980); State in Interest of M.P.C.,

165 N.J. Super. 131, 397 A.2d 1092, 1094 (1979); Common-

wealth v. Trefry, 249 Pa. Super. 117, 375 A.2d 786, 793

(1977); Hayes v. State, 634 S.W.2d 359, 363 (Tex. Ct. App.

1982); and Aliff v. State, 627S.W.2d 166, 169, 170 (Tex. Ct.

App. 1982).

In Schmerber, this Court said that ordinarily search

warrants would be required to obtain a blood sample

from a suspect:

Search warrants are ordinarily required for

searches of dwellings, and absent an emergency,

no less could be required where intrusions into

the human body are concerned.

384 U.S. at 770.

In comparing the search of a dwelling with the

search of a human body, this Court indicated that absent

a warrant the state would have to make as great a

showing of an emergency to search the body as to search

the home. In Schmerber, the possible destruction of

evidence by the alcohol metabolizing in the blood qualified

as an emergency justifying the warrantless seizure of the

blood sample from the body. If loss of evidence of

intoxication justifies entering the human body, then,

under Schmerber, it logically follows that the threat of

loss of the same evidence justifies entry into a home to

obtain the evidence. Since the fourth amendment rules

governing search and seizure are the same as those

governing arrest, Payton, 445 U.S. at 590; Steagald, 451

U.S. at 212, the prevention of the loss of evidence of

intoxication provides the emergency needed to make the

warrantless entry into the home to arrest the defendant

, and to obtain evidence of the level of alcohol in the blood.

In other cases this Court has implied even more

strongly that the prevention of the destruction of intoxica-

tion provides the exigent circumstance needed to make a

warrantless entry into a home. In Vale, the warrantless

entry into the suspect’s home was ruled unconstitutional.

In explaining why the entry was illegal, this Court noted

that no one claimed that the police were responding to an

emergency. 399 U.S. at 35. The Court said: “The goods

ultimately seized were not in the process of destruction.

Schmerber v. California, 384 U.S. 757, 770-71.” Vale, 399

U.S. at 35.

The state submits that it is significant that this

Court cited Schmerberin a home entry case. The citation

of Schmerber in Vale indicates that the threat of the

destruction of the evidence of alcohol in the blood would

justify the warrantless entry into the home. Such a

justification exists in the instant case.

Also, in Camara, this Court cited Schmerber as a

case exemplifying the type of situation where a warrant

is not necessary because “the burden of obtaining a

warrant is likely to frustrate the governmental purpose

behind the search.”’ 387 U.S. at 533. The citation of

Schmerber in Camara is important because the issue in

that case was whether a warrant was required to enter a

residence to search for evidence of a misdemeanor viola-

tion of the building code. In other words, the citation of

Schmerber in Camara indicates that the loss or the

destruction of alcohol in the blood would justify the

warrantless entry into the home to search for evidence of

a misdemeanor.

Camara also adds further support to the state’s

position when read together with Mackey v. Montrym,

443 U.S. 1 (1979). In Camara, this Court said that the

warrantless entry of the residence to search for a mis-

demeanor building code violation would be justified in

emergency situations, such as the seizure of unwholesome

food in North American Cold Storage Company v. City of

Chicago, 211 U.S. 306 (1908). See Camara, 387 U.S. at 539.

In Mackey, this Court said that states have at least as

much interest in removing drunk drivers from their

highways as in summarily destroying spoiled foodstuffs,

citing the same North American Storage case that was

cited in Camara. See Mackey, 443 U.S. at 17-18. The state

submits that if its interest in seizing unwholesome food

creates a sufficient emergency to justify the warrantless

entry of a residence, as implied in Camara, 387 U.S. at

539; and if the state’s interest in removing drunk drivers

from the highway is as sufficient as seizing unwholesome

food, as stated in Mackey, 443 U.S. at 17-18; then the

state’s interest in removing drunk drivers from the

highway should justify the warrantless entry into the

suspect’s home, especially when the entry is made only to

avoid the destruction of evidence that will surely be lost

unless quickly seized.

The defendant argues that, for three reasons, the

prevention of the loss of evidence of alcohol in the blood is

not sufficient to justify the warrantless entry into the

home. First, the defendant contends that the evidence

may not be obtained anyway because he may refuse to

give his consent to the breathalyzer test. However, under

Schmerber, the state could forceably obtain evidence of

the alcohol level in the blood. See Neville, 103 S. Ct. at

921l;and Trefry, 375 A.2d at 792. Also, if the defendant

refuses to give his consent to the test, the state can

introduce evidence of the refusal at the defendant's trial

on drunk driving. Neville, 103 S. Ct. at 916.

Second, the defendant contends that he may drink

more alcohol before the police reach his home and

thereby he will destroy the validity of any test. The state

submits that this possibility is the strongest reason for

permitting the police to make a warrantless entry to

prevent the destruction of evidence. The time the police

would take to obtain a warrant provides the defendant

with even more time to drink mure alcoho! and to destroy

the validity of a test. In order to reduce the chances of the

defendant drinking more alcohol, the police must be

permitted to enter the defendant’s home and arrest him

as soon as possible.

Finally, the defendant contends that alcohol does

not dissipate all that quickly in the blood so that there

will be time to obtain a warrant, arrest the defendant and

conduct a test before all the alcohol has dissipated.

It is obvious that in some cases tests concluded three

or more hours after the driving have shown alcohol levels

in the blood that exceeded the legislatively mandated

level of intoxication. However, it cannot be certain thatin

all cases the alcohol level will be that high after three

hours. Over the course of three hours the alcohol level will

surely be reduced because, as pointed out in Schmerber,

384 U.S. at 770, the percentage of alcohol in the blood

begins to diminish shortly after the drinking stops. In the

case of the defendant, the police did not know when he

had stopped drinking; it may have been a long time

before he drove. The police only had probable cause to

believe that the defendant was intoxicated when he

drove. There was no way for the police to know that the

defendant’s level of intoxication would not go below the

statutory level of intoxication if time was taken to obtain

a warrant. Even if the percentage of alcohol did not go

below the statutory level of intoxication, the percentage

of alcohol in the blood would have diminished during the

time the warrant was obtained and evidence would have

therefore been destroyed. To prevent the destruction of

evidence, the police were justified in entering the defend-

ant’s home to arrest him.

This Court has recognized the importance of early

testing for intoxication:

The Commonwealth must have the authority, if

it is to protect people from drunken drivers, to

require that the breath-analysis test record the

alcoholic content of the bloodstream at the

earliest possible moment.

Mackey, 443 U.S. at 15 (emphasis added).

Other courts have also concluded that, becausé the

alcohol content in the blood diminishes after drinking

stops, the test for intoxication must be completed as soon

as possible after the offense. Brown v. Municipal Court of

Los Angeles, 86 Cal. App. 3d 357, 150 Cal. Rptr. 216, 220

(1978); Williams, 417 So. 2d at 756; De Vaney, 288 N.E.2d

at 735; State v. Spence, 418 So. 2d 583, 586 (La. 1982);

Tefry, 375 A.2d at 793; and Martin, 268 S.E.2d at 107-08.

Because it is necessary to test for the level of intoxica-

tion as soon as possible, there is not time for the police to

obtain a warrant before entering the defendant's home to

arrest him. The state has observed that few, if any, of the

cases that allow the warrantless seizure of the blood

samples even discuss the time it would take to obtain a

warrant. In Schmerbder, this Court said the officer could

conclude that an emergency existed and the Court did not

mention the time necessary to obtain the warrant. The

courts have recognized that during the time it takes to get

a warrant — however long that may be — evidence will be

lost. Therefore, the courts have allowed the immediate

seizure of the evidence. This rationale also permitted the

police in the instant case to enter the defendant’s home

without a warrant in order to obtain evidence of intoxica-

tion before the evidence was lost.

The state submits that for the reasons discussed in

this section of the brief, exigent circumstances existed to

justify the warrantless entry into the defendant’s home.

The exigent circumstances coupled with the probable

cause possessed by the police resulted in a constitutional

arrest of the defendantin his home. For reasons discussed

earlier in the brief, the arrest was valid whether this

Court concludes that the defendant was arrested for a

forfeiture offense of drunk driving or for a misdemeanor

offense of drunk driving. In either case, drunk drivingisa

serious offense that could be classified as a crime, even a

felony, within the guidelines of the eighth amendment.

V. This Court Should Not Require

The Police To Seek A Telephone

Warrant Before Entering The

Defendant’s Home To Arrest

Him.

The defendant contends that before they could justify

the warrantless entry of his home to arrest him, the police

should be required to show that obtaining a telephone

warrant would have been impracticable.

The state submits that the unavailability of a tele-

phone warrant should not be made a requirement for

justifying a warrantless entry. At the time of the arrestin

the defendant’s case, Wisconsin did not provide a pro-

cedure for obtaining such a warrant. In addition, at no

time prior to filing his brief in this Court did defendant

contend that the police should have sought a telephone

warrant.

In any event, in the context of this case, the police

should not be required to seek even a telephone warrant

because during the time taken to obtain it evidence would

have been lost. Not as much evidence may be lost in

obtaining a telephone warrant as in obtaining a regular

warrant, but some evidence nonetheless will be lost

because the alcohol will continue to dissipate in the blood

while time is taken to obtain the warrant.

Finally, the state is not aware of any case where this

Court has ruled that the telephone warrant procedure is

constitutional. The state submits that it would be pre-

mature for this Court to require the police in this case to

have sought a telephone warrant when this Court has not

ruled that the telephone warrant procedure is constitu-

tional.

VI. A Decision Invalidating The Entry

Into The Defendant’s Home Would

Hamper Effective Law Enforce-

ment.

The defendant argues at the end of this brief that

invalidating the entry into his home would not hamper

effective law enforcement. The defendant urges this

Court to adopt a “bright line” rule prohibiting the police,

without a warrant, from entering a home to arrest a

suspect whose only offense is minor.

Of course, the state contends that such a rule would

not apply in the instant case anyway because drunk

driving is more than a minor offense. However, if drunk

driving were a minor offense, the defendant’s rule would

seriously hamper the enforcement of the drunk driving

laws. The rule would permit the drunk driver to race home

and avoid immediate arrest as long as he did not commit

a serious offense, which the defendant would apparently

define as a felony. Needed evidence of intoxication would

be lost while the police sought a warrant. The defendant’s

rule does not even allow an entry without a warrant in

those areas of the country that are sparsely populated

and where obtaining a warrant can take a great deal of

time. In addition, because the defendant does not want to

permit a warrantless arrest in the case of minor offenses,

he would apparently not allow the police to enter a home

to stop a battery that in Wisconsin is a misdemeanor. See

sec. 940.19(1), Wis. Stats. (1981). In other words, the

defendant’s rule would not permit the police to make a

warrantless entry into a home to stop acrime of violence.

This single example shows how impractical and dan-

gerous the defendant’s proposed rule is. The rule should

be rejected and this Court should apply the norma! rule

that dispenses with the warrant requirement where the

police possess probable cause and exigent circumstances

exist. That exception was satisfied in the instant case.

CONCLUSION

For the reasons discussed above, the State of Wiscon-

sin requests this Court to affirm the judgment of the

Wisconsin Supreme Court.

Respectfully submitted,

BRONSON C. LA FOLLETTE

Attorney General of Wisconsin

STEPHEN W. KLEINMAIER

Assistant Attorney General

of Wisconsin

Attorneys for Respondent.

Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707

(608) 266-1677

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.