Petitioners Reply Brief — Welsh v. Wisconsin

No. 82-5466 SLEXANDER L. STEVAS,

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

REPLY BRIEF FOR PETITIONER

GORDON BREWSTER BALOWIN

The Law School

Univ. of Wisconsin

Madison, WI 53706

(608) 263-2077

Counsel for Petitioner

a

TABLE OF CONTENTS

I. THE NATURE AND QUALITY OF

THE UNDERLYING OFFENSE, AS

DETERMINED UNDER STATE LAW,

IS RELEVANT IN MEASURING

THE REASONABLENESS OF THIS

NONCONSENSUAL AND WARRANT-~

LESS ENTRY INTO THE DEFEND-~

ANT'S HOME. . « © « «© «© «

II. WHETHER WISCONSIN'S POLICE

COULD HAVE LAWFULLY ARRESTED

THE DEFENDANT OUTSIDE HIS

HOME FOR THE OFFENSE CHARGED

IS NOT AN ISSUE FOR THIS

OD i ca eae 69 ele bX

III. THE ISSUE BEFORE THIS COURT

IS WHETHER SUFFICIENT JUSTIFI-

CATION EXISTED TO PERMIT A

WARRANTLESS NONCONSENSUAL

ENTRY, NOT WHETHER PROBABLE

CAUSE EXISTED . «2 we s we wo o

IV. THE "HOT PURSUIT" DOCTRINE IS

INAPPLICABLE TO THIS CASE. .

V. INASMUCH AS THE UNDERLYING

OFFENSE WAS NOT CONSIDERED

SERIOUS BY THE STATE, AND

BECAUSE OF THE ABSENCE OF AN

URGENT EMERGENCY, THE EXIGENT

CIRCUMSTANCES DOCTRINE IS NOT

APPLICABLE TO THIS CASE...

IV. A DECISION FAVORING THE

DEFENDANT WOULD NOT HAMPER

LAW ENFORCEMENT... «we «

CONCLUSION. . . . . . . . . . . 7. .

Page

ll

14

16

sac.

CITATIONS

Cases:

Aliff v. State, 627 S.W.2d 166

c7ens Ges MO. IFG2). » « ‘

Baldwin v. New York, 399 U. S.

66 (1970) : 0

Bolger v. Young's Dru “Products,

ide eo. Fk Vedebewe 496i

Tijune 24, 1983)... -

Camara v. Munici al Court, "387

U.S. 523 tise?) ‘ #. +s

Clowser vy. Chaplin, [1981] 2 All

Diner keke? « 2 6 te +

Commonwealth v. Trefy, 249 Pa.

~ Super. 1ll?, 375 A.2d0 786

(1977). or Ve a a

DeVaney v State, 259 Ind. 483,

288 N. r ae wee SBE). « « 2 6 2

Dorman v. United States, 435 F.2d

385 (D.C. Cir. 1970 en banc).

Duncan v. Louisiana, 391 U.S.

45 968 i -e - *

Finnigan v. Sandiford, "C1981] 2

aan ine, ee Seeks? 6 a 0 0 6

Florida v. Casal, U.S. __,

“SI U.S.LOW. 48 4827 (une iv,

. 1983) mee : : “4

reqg v. ate, 374 0. ‘2d 30

(Miss. 1979). .

Hart v. Chief Constable of Kent,

1983] Crim. 117

Hayes v. State, "gaa s wcad 359°

vans eer, 2902). .6 + 2 «

Herb v. Pitcairn, 324 U.S. 117

ti 5) > ae ae

Illinois v. Batchelder, i #

a1 U.S.L.W. 3953 (uly ‘.

; Aa De es a

Illinois v. Gates, us.

“SI U.S.L.W. 4685 (dune 8, 1983)

Page

-iii-

Kolendar v. Lawson, a. 3

— 51 U.SsL.W. 4532 (May 2, ists.

McDonald v. United States, 335

See ee REPO? « 6 o & 2 eo

Michigan v. Anthony, 120, Mich.

App. 207, 327 N.W.2d 44 (1982)

cert. denied, vs.

51 U.S.L.W. 3872 (June 6, 1983)

Murdock v. Memphis, 20 Wall. 590

(1875). rns s ~ se + © 2.»

Payton v. New York, 445 U.S. 573

tn se Sok « bs 6 6 ' + © ©

People v. Bell, 41 Ill. App. 3d

233, 355 N.E.2d 38 (1976)

People v. Rodriguez, 645 P.2d 857

(Colo. Ct. App. 1982)...

Pollard v. State, 439 N.E.2d 177.

(Ind. Ct. App. 1982). ,

State v. Cormican, 292 Minn.

505, 195 N.W.2d 586 (1972).

Shultz v. State, 417 N.E.2d

nd. - App. 1981)

Solem v. Helm, U.3.

U.S.L.W. 5019 (June 28, 7983)

State in Interest of M.P.C.

165 N.J. Super. 131, 397 A. 2d

1092 (i979) « « » .

State v. Campbell, 615 P.2d 190 _

(Mont. 1980). ah

State v. Niedermeyer, 48 Ore.

App. 665, 617 P.2d 911 (1980)

cert. denied, 450 U.S. 1042

(1961).

State v. Oeverin . 268 N. W. .2d

68 (Minn. ering -— —

State v. Penas, 200 Neb. "387,

263 N.W.2d 835 (1978)...

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

321 N.W.2d 245 of.) ee

State v. Williams, 417 So.2d 755.

ives Ube Paes 29602). « » ©

-ive

State ex rel McDonald v. Douglas

Cty. Cir. Ct., 100 Wis.2d 569,

302 N.W.2d 462 (1981) . . ti. & Ba

Street v. Surdyka, 492 F.2d 368

(Sen Clits 2977S) « « ee ace

Terry v. Ohio, 392 U.S. (1968). - ee oe

exas v. Brown, U.S.

51 U.S.L.W. 4361 rome 5;

1983) 7 o . + . . . a 14

United States V. Harvey . "701 "F.2d

a cee Cae. Lee) 6 kt eee we

Statutes:

Wisconsin

Wis. Stats. Sec. 346.67 (1975). . .10,11

Miscellaneous:

American Law Institute, A MODEL

CODE OF PRE-ARRAIGNMENT

PR GUO ls ce bb eevee ow 8

C. Wright, H

fs » (2nd ed.

970 o . . . . . . . . . . . . . . 3

a.

No. 82-5466

OCTOBER TERM, 1982

EDWARD G. WELSH

PETITIONER,

Ve

STATE OF WISCONSIN,

RESPONDENT.

REPLY BRIEF FOR PETITIONER

I. THE NATURE AND QUALITY OF THE

UNDERLYING OFFENSE, AS DETERMINED

UNDER STATE LAW, IS RELEVANT IN

MEASURING THE REASONABLENESS OF THIS

NONCONSENSUAL AND WARRANTLESS ENTRY

INTO THE DEFENDANT'S HOME

Respondent's argument does not

support the home arrest of Edward Welsh

on the grounds advanced by the Supreme

Court of Wisconsin (Brief of Respondent

at 11). The State makes the unusual

tn

argument that this Court can ignore the

Wisconsin Supreme Court's conclusion

that the defendant was arrested under a

Wisconsin statute authorizing arrests of

traffic offenders. The State's claim is

without support. On matters of state

law this Court has long held that state

courts speak with final authority, un-

less in so doing they violate constitu-

tionally protected rights. Justice

Jackson summarized the rule:

"Our only power over state

judgments is to correct them to

the extent that they incorrect-

ly adjudge federal rights. And

Our power is to correct wrong

judgments, not to revise

opinions."

Herb v. Pitcairn, 324 U.S. 117, 125-126

(1945); see also Florida v. Casal,

U.S. , 51 U.S.L.W. 4827 (June 17,

1983) (Burger, C.J. concurring);

Kolender v. Lawson, U.S. » 31

U.S.L.W. 4532, 4533 (May 2, 1983);

oe

Murdock v. Memphis, 20 Wall. 590, 635

(1875); see generally C. Wright,

Handbook of the Law of Federal Courts

488 (2nd ed. 1970).

The respondent confuses the arrest

with the charge (Brief of Respondent at

8). The reasonableness of defendant's

arrest is the issue, and reasonableness

involves the arrest statute, not the

subsequent charging decision as respond-

ent suggests (Brief of Respondent at

10-11). The penalty for first offenders

arrested for traffic offenses is a civil

forfeiture.

The penalty a state attaches to an

offense helps measure the reasonableness

of a trial by judge alone, Baldwin v.

New York, 399 U.S. 66, 68 (1970); Duncan

v. Louisiana, 391 U.S. 145, 160 (1968).

It has likewise considered the penalties

attached under state law in determining

whether a penalty is cruel and unusual,

er a

Solem v. Helm, U.S. , S31 U.S.LWe

5019, 5024 n.20 (June 28, 1983). Simi-

larly one of the components of reason-

ableness under the Fourth Amendment's

standards is the seriousness with which

the government views an offender.

McDonald v. United States, 335 U.S. 451,

459 (1948) (Jackson, J., concurring);

Dorman v. United States, 435 F.2d 385,

392 (0.C. Cir. 1970 en banc). Reason-

ableness is measured by balancing the

invasion which occurs with the govern-

mental interest asserted to justify a

seizure, see Terry v. Ohio, 392 U.S. l,

20-21 (1968); Camara v. Municipal Court,

387 U.S. 523, 535 (1967). Wisconsin's

Supreme Court plainly identified the

governmental interest here as an appli-

cation of its traffic arrest statute.

Respondent invokes, as authority for

an independent review of the statutory

basis for defendant's arrest, the prin-

sf

ciple that not every violation of state

arrest law triggers a violation of the

Fourth Amendment, see Street v. Surdyka,

492 F.2d 368, 370 (4th Cir. 1974), Brief

of Respondent at 22-24. Street was cor-

rectly decided, but it does not supply

any authority suggesting that this Court

should ignore the Wisconsin Supreme

Court's characterization of the defend-

ant's arrest.

II. WHETHER WISCONSIN'S POLICE COULD

HAVE LAWFULLY ARRESTED THE DEFENDANT

OUTSIDE HIS HOME FOR THE OFFENSE

CHARGED IS NOT AN ISSUE FOR THIS COURT

The respondent asserts that the de-

fendant claims that he "could not con-

stitutionally be arrested even for the

misdemeanor offense of drunk driving and

even in a public place." (Brief of

Respondent at 13.) This argument was

suggested in the Wisconsin Supreme Court

in the dissenting opinion of Justice

se

Abrahamson. The defendant only states

that the common law rule, forbidding

arrests for minor offenses not committed

in the presence of the police, and not

constituting a breach of the peace, "is

sound, especially as it applies to war-

rantless nonconsensual entries into the

home." (Brief of Petitioner at 34.) We

argue that the exigent circumstances

doctrine does not justify a home entry

here. Contemporary norms and condi-

tions, relevant in evaluating the rea-

sonableness of a search and seizure,

confirm the common law. People are

entitled to more protection in their

homes than outside, and governmental

invasions of that privacy must be sub-

jected to extraordinarily strict scru-

tiny, cf. Bolger v. Young's Drug

Products, US. , 5l GO Ssta¥e

4961, 4966 (June 24, 1983) (Rehnquist,

J., and O'Connor J. concurring).

ate

The defendant does not claim that a

state may never allow arrests for minor

offenses unless committed in the pres-

ence of the police (Brief of Respondent

at 13). The defendant does point out,

however, that such power is rarely as-

serted and is contrary to the thoughtful

recommendations in the American Law

Institute's Model Code of Pre-Arraign-

ment Procedure. (Brief of Petitioner at

28). See also State v. Cormican, 292

Minn. 505, 195 N.W.2d 586 (1972). More-

over, even the law of Wisconsin ordinar-

ily commands that magistrates issue sum-

mons in preference to warrants (Brief of

the Wisconsin Civil Liberties Union

Foundation at 22). Whether or not

Wisconsin law authorizes arrests for

minor out of presence offenses must

first be evaluated under the Law of

Wisconsin. The majority in the Supreme

Court of Wisconsin did not focus upon

alice

that issue (see State v. Welsh, 108 Wis.

2d 319, 344, 321 N.W.2d 245, 258, J.A.

180 (Abrahamson, J. dissenting). It

would, of course, be bizarre to allow a

policeman to enter a home but forbid a

magistrate at his elbow from issuing a

warrant to authorize the entry.

III. THE ISSUE BEFORE THIS COURT IS

WHETHER SUFFICIENT JUSTIFICATION

EXISTED TO PERMIT A WARRANTLESS

NONCONSENSUAL ENTRY, NOT WHETHER

PROBABLE CAUSE EXISTED

The Supreme Court of Wisconsin

found, and the respondent continues to

assert, that the police had probable

cause to arrest Edward Welsh (Brief of

Respondent at 33-34). That is not the

problem. Defendant claims that even if

the informer's testimony, coupled with

Officer Daley's suspicions, supplied

probable cause to arrest (see Illinois

v. Gates, U.S. » 51 U.S.L.W. 4685

(June 8, 1983)), there was insufficient

aia

justification to authorize a nonconsen-

sual warrantless entry into Welsh's

home. Probable Cause to arrest does not

establish justification to enter, Payton

v. New York, 445 U.S. 573, 583 (1980).

In 1981 a unanimous House of Lords con-

firmed this rule by holding that police

could not enter a home to arrest a sus-

pect to administer a blood test.

Finnigan v. Sandiford, Clowser v.

Chaplin, [1981] 2 All E.R. 267.

IV. THE “HOT PURSUIT" DOCTRINE IS

INAPPLICABLE TO THIS CASE

Respondent invokes the "hot pursuit"

doctrine (Brief of Respondent at 34).

That doctrine, evidently a branch of the

exigent circumstances rule, evolved un-

certainly in the context of police en-

gaged in a chase of a suspect who had no

its

right to flee. In this case, how-

ever, the State has not claimed that

Edward Welsh had a duty to stand by his

automobile and wait. Of course such a

duty would exist had there been injury

or damage, see Wis. Stat. 346.67.!

*If the defendant had been stopped

at his door, the police could have pur-

sued to make an arrest. Hart v. Chief

Constable of Kent, [1983] Crim. L.R. 117

ueen's Bench, D.C.).

1346.67 Duty upon striking person

or attended or occupied vehicle. (1)

The operator of any vehicle involved in

an accident resulting in injury to or

death of any person or in damage to a

vehicle which is driven or attended by

any person shall immediately stop such

vehicle at the scene of the accident or

as close thereto as possible but shall

then forthwith return to and in every

event shall remain at the scene of the

accident until he has fulfilled the fol-

lowing requirements:

(a) He shall give his name, address

and the registration number of the vehi-

Cle he is driving to the person struck

or to the operator or occupant of or

person attending any vehicle collided

with; and

(b) He shall, upon request and if

atte

Indeed, had there been injury or damage

the suspect could have been sought for a

more serious offense. In some cases the

failure to remain at the scene of an

accident is a felony, see State ex rel

McDonald v. Douglas Cty. Cir. Ct., 100

Wis.2d 569, 302 N.W.2d 462 (1981). No

one was injured, no damage was done, and

hence Edward Welsh did what the law al-

lows, he went home to bed!

available, exhibit his operator's

license to the person struck or to the

operator or occupant of or person

attending any vehicle collided with; and

(c) He shall render to any person

injured in such accident reasonable as-

sistance, including the carrying, or the

making of arrangements for the carrying,

of such person to a physician, —"

or hospital for medical or surgica

treatment if it is apparent that such

treatment is necessary or if such carry-

ing is requested by the injured person.

wits

V. INASMUCH AS THE UNDERLYING OFFENSE

WAS NOT CONSIDERED SERIOUS BY THE

STATE, AND BECAUSE OF THE ABSENCE OF

AN URGENT EMERGENCY, THE EXIGENT

CIRCUMSTANCES DOCTRINE IS NOT

APPLICABLE TO THIS CASE

The emergency which the State of

Wisconsin claims justifies the home en-

try and arrest in this case is the fact

that the percentage of alcohol in the

blood in due course drops to zero (Brief

of Respondent at 37). It does so not

immediately but over a period of time.

Blood tests are permitted now within

three hours of the time of arrest, and

longer if experts testify on reliability

(Brief of Respondent at 42). In one of

the cases respondent cites a reliable

blood test was taken four hours after

the offense, State v. Oevering, 268

N.W.2d 68 (Minn. 1978).

The cases cited by respondent (Brief

of Respondent at 38) all involve one of

several situations:

site

1) Where a defendant was lawfully

arrested and subjected to a blood alco-

hol test, either after, or contemporane-

ously with, a lawful arrest. United

States v. Harvey, 701 F.2d 800 (9th Cir.

1983); Commonwealth v. Trefry, 249 Pa.

Super. 117, 375 A.2d 786 (1977); Gregg

v. State, 374 So.2d 1301 (Miss. 1970);

Shultz v. State, 417 N.E.2d 1127 (Ind.

Ct. App. 1981).

2) Where the offense took place in

the presence of the officer. See State

v. Penas, 200 Neb. 387, 263 N.W.2d 835

(1978) (Brief of Respondent at 35);

People v. Bell, 41 Ill. App. 3d 233, 355

N.E.2d 38 (1976); State v. Niedermeyer,

48 Ore. App. 665, 617 P.2d 911 (1980),

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

(Brief of Respondent at 32 n.11); see

also Illinois v. Batchelder, __ U.S.

__» 51 U.S.L.W. 3933 (July 6, 1983)

(per curiam).

sie

3) Where the defendant was in a

hospital and a blood test was sought in

circumstances where no privacy interest

was invaded. People v. Rodriguez, 645

P.2d 857 (Colo. Ct. App. 1982); State vy.

Williams, 417 So. 2d 755 (Fla. Ct. App.

1982 = 3 hours after accident); DeVaney

v. State, 259 Ind. 483, 288 N.E.2d 732

(1972); State in Interest of M.P.C., 165

N.J. Super. 131, 397 A.2d 1092 (1979);

Hayes v. State, 634 S.W.2d 359 (Tex. Ct.

App. 1982); Aliff v. State, 627 S.W.2d

166 (Tex. Ct. App. 1982); State v.

Campbell, 615 P.2d 190 (Mont. 1980);

State v. Oevering, 268 N.W.2d 68 (Minn.

1978); Pollard v. State, 439 N.E.2d 177

(Ind. Ct. App. 1982). Medication and

treatment may diminish the value of a

delayed blood alcohol test. Hence, the

warrant requirement is excused.

In all of these cases the police,

when they sought a blood alcohol test,

-15-

were where they had a right to be. Po-

lice had no right to be in Edward

Welsh's home unless they entered with

consent, or with a warrant. They were

in no legitimate position to either ar-

rest, or to observe, the defendant. See

Texas v. Brown, U.S. , Sl

U.S.L.W. 4361, 4363 (April 19, 1983).

VI. A DECISION FAVORING THE DEFENDANT

WOULD NOT HAMPER LAW ENFORCEMENT

Respondent asserts that the defend-

ant's claim would, if honored, "not al-

low the police to enter a home to stop a

battery," or “make a warrantless entry

into a home to stop a crime of vio-

lence." (Brief of Respondent at 45).,

This is not defendant's claim. Anyone,

including the police, may enter a home

to save life or limb, or to render ne-

cessary first aid. Such entries are

allowed under the "emergency doctrine."

ee

(Brief of Petitioner at 54 n.28). This

case would be entirely different had

police at the door heard the sound of

breaking crockery and a cry for "help!"

This Court has implied, and other

courts have uniformily held, that

expediency does not create exigency.

(Brief of Petitioner 60-62.) See also

Michigan v. Anthony, 120 Mich. App. 207,

327 N.W.2d 44 (1982), cert. denied,

u.$. » 51 U.S.L.W. 3872 (June 6,

1983); Finnigan v. Sandiford, cited p. 9

supra (House of Lords, 1981).

CONCLUSION

For the reasons previously stated,

the judgment in this case should be

reversed.

Respectfully submitted,

GORDON 8. BALDWIN

Counsel for Petitioner.