Amicus Brief — Welsh v. Wisconsin

Office -Supreme Court, US,

FILED

APR 22 1993

ALEXANDER L. STEVAS,

No. 82-5466 CLERK

Sa

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

>

EDWARD G. WELSH

Petitioner,

Vio

THE STATE OF WISCONSIN

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF WISCONSIN

BRIEF FOR THE WISCONSIN CIVIL

LIBERTIES UNION FOUNDATION

AS AMICUS CURIAE

CHARLES F. KAHN, JR., Counsel of Record

KAHN & LEVINE

759 North Milwaukee Street

Milwaukee, Wisconsin 53202

(414) 276-6900

Counsel for Amicus Curiae

April, 1983

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...............5, 2

INTEREST OF AMICUS CURIAE...,..... ee

SUMMARY OF ARGUMENT.............-04-. 5

I a i ee 8

Be THE FOURTH AMENDMENT PROTECTS

BASIC SOCIETAL VALUES OF

INDIVIDUAL FREEDOM AND LIBERTY... 10

II. WARRANTLESS NON-CONSENSUAL

POLICE ENTRIES INTO PRIVATE

HOMES AT NIGHT TO PRESERVE

EVIDENCE OF NON-CRIMINAL

TRAFFIC VIOLATIONS ARE NOT

Res gi Serer rr rere eee eee 14

III. THE PEOPLE WOULD BE STRIPPED

OF THEIR EXPECTATION OF

PRIVACY IN THE HOME WERE

WARRANTLESS ENTRIES ALLOWED

FOR NON-CRIMINAL ARRESTS,....... 26

eo ee ergs Se en er ree 29

TABLE OF AUTHORITIES

Case: . Page

Baldwin v. New York, 399 U.S.

Re soe a ee 20

Boyd v. United States, 116 U.S.

SR | SS ee eee ll

Carroll v. United States, 267

7 RGR *: ge. . > res 17

Duncan v. Louisiana, 391 U.S.

ST Pa es on dc 6S ath a 6.8 20

Johnson v. United States, 333

i Ae Se |) Se eee 10

Jones v. United States, 357 U.S.

RC Ree 28

McDonald v. United States, 335

= SS ee Ue 12

South Dakota v. Neville,

a; * ees.) Pree ee

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

—- a ae ol

Web® 295 (E9GZ)... 002

Trupiano v. United States, 334

Ff i it | eee

United States v. Martinez-Fuerte,

Te Cus SUE CAPT OP cctcebhaees

United States v. United States

District Court, 40/7 U.S.

United States v. Watson, 423

oe ae Gey . > Peper

Constitutional Provisions and

Statutes Cited:

OH Aye ee OD | een gear

Was. BEE. CIGD SZEGED. « cscvvcccuce

Wis. Stat. 6346.G63(2)....ccccceces

Wis. Stat. §346.65(2).............

Wis. Stat. §968.04(2)(b)..........

INTEREST OF AMICUS CURIAE

The Wisconsin Civil Liberties Union

Foundation is a nonpartisan Wisconsin

organization dedicated to preserving and

protecting the liberties safeguarded by

the United States Constitution and its

Bill of Rights. It is associated with

the Wisconsin Civil Liberties Union, a

4,000 member organization which is the

Wisconsin state affiliate of the American

Civil Liberties Union.

This case presents serious questions

regarding the strength of the Fourth

Amendment protection against unreasonable

searches and seizures, a provision of

critical importance to our Bill of Rights.

Written consent of the parties for

the filing of this brief amicus curiae

has been supplied te this Court,

SUMMARY OF ARGUMENT

Warrantless searches and seizures

are presumatively unreasonable under the

Fourth Amendment. The home is especially

protected from government intrusion,

Exceptions to the warrant requirement are

jealously and carefully drawn.

Warrantless home entries are allowed

only in exigent circumstances. Exigency

may exist where the nature of the intru-

sion is minor compared to the need for

the protection of the community which the

search or seizure seeks to accomplish.

Even then, the intrusion is justified

only if it is imperative in order to

achieve the community protection.

An appropriate measure of the rela-

tive importance of the community objective

which the intrusion seeks to protect is

the classification of a law violation as

a felony, misdemeanor, "petty" misdemeanor,

or forfeiture action. Unless this Court

5

would allow the exceptions to swallow

the rule of the Fourth Amendment, no

warrantless police intrusion of a private

home can be justified merely to preserve

evidence for use in a civil forfeiture

action.

Furthermore, under Wisconsin law,

no magistrate has the authority to issue

an arrest warrant for the violator of a

non-criminal law, absent a showing that

the defendant would fail to appear in

response to a summons, It would be

perverse to allow the police to invade

a private residence without judicial

authorization under circumstances in

which no judicial authorization could

legally be obtained.

The Fourth Amendment would be

seriously weakened were police allowed

into private homes absent consent and

without a warrant for the purpose of

preserving evidence that a non-criminal

law violation has occurred. The people

would no longer be secure in their houses

because government agents would be free

to conduct searches and seizures in the

home upon probable cause that a resident

had exceeded posted speed limits or spit

on the sidewalk, if the officer thought

the "identity" of the perpetrator had to

be learned to be preserved.

ARGUMENT

Edward G. Welsh was at home, un-

dressed in his bed when two police

officers entered his upstairs bedroom

to arrest him for drunk driving. Mr.

Welsh was accused of having operated

an automobile while intoxicated earlier

that evening. (J.A. 44, 46). The

police officers had not observed the

driving; they were acting on the report

of a citizen witness. (J.A. 32, 33).

The officers had no warrant for the

arrest of Mr. Welsh, and no warrant to

search for evidence of any offense.

(JA. 34).

In Wisconsin, driving under the

influence of an intoxicant is a non-

criminal offense, the violation of

which subjects an individual to a money

forfeiture. Only if the violator has

been previously convicted of an intoxi-

cated driving offense within the last

five years does the current matter be-

come criminal in nature, For the second

and subsequent offense within five years,

the violation is a misdemeanor, sub-

jecting the defendant to a fine and im-

prisonment up to one year, This

statutory arrangement was in effect at

the time of Mr. Welsh's arrest, and

remains in effect today. Wis. Stat, Ann.

§346.63(1) (a) and 346,65(2).

The record in this case indicates

nothing to suggest that the officers

who arrested Mr. Welsh in his bedroom

had reason to believe Welsh had pre-

viously been convicted for driving

while intoxicated. (J.A. 46). The only

inference which this record supports is

that Mr. Welsh was arrested as a viola-

tor of a non-criminal traffic regulation,

- THE FOURTH AMENDMENT PROTECTS

BASIC SOCIETAL VALUES OF

INDIVIDUAL FREEDOM AND LIBERTY

The Bill of Rights protects the

precious heritage of individual freedom

and personal liberty for the people of

the United States. This Court has

referred to the Fourth Amendment pro-

tection against the warrantless police

intrusion into private living quarters

as

"one of the most fundamental

distinctions between our form

of government, where officers

are under the law, and the

police-state where they are

the law."

Johnson v. United States, 333 U.S. 10,

17 (1948).

The Fourth Amendment stands as a

barrier to shield people from improper

intrusions by agents of government. The

language of this Amendment is absolute

in its guarantee that the right of

10

security in one's home against unreason-

able searches and seizures "shall not

be violated". U.S. Const. amend. IV.

Interpreting the word "unreasonable"

in the Fourth Amendment, this Court has

unyieldingly held that searches and

seizures executed on private property

without a warrant are presumptively un-

reasonable, Camara v. Municipal Court,

387 U.S. 523, 528, 529 (1967), Mincey v.

Arizona, 437 U.S. 385, 390 (1978).

The personal security protections

of the Fourth Amendment ''should be

liberally construed", Boyd v. United

States, 116 U.S. 616, 635 (1886), and

relief from the warrant requirement is

available only "in a few ‘jealously

and carefully drawn' exceptional cir-

cumstances", United States v. Watson,

423 U.S. 411, 427 (1976) (Powell, J.,

dissenting) (citations omitted).

1l

Because of the importance of the "right

of privacy as one of the unique values

of our civilization", McDonald v. United

States, 335 U.S. 451, 453 (1948) war-

rants are always required for home

entries by police unless the situation

evidences a "grave emergency"’. McDonald

v. United States, 335 U.S. at 455. The

absence of a warrant cannot be excused

"without a showing by those

who seek exemption from con-

stitutional mandate that the

exigencies of the situation

made that course imperative."

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

456.

In enforcing the guarantees of the

Fourth Amendment, this Court has given

special recognition to "the sanctity of

private dwellings". United States v.

Martinez-Fuerte, 428 U.S. 543, 561

(1976). Examination of the purpose and

history of this constitutional provision

reveals that "physical entry of the

~ home" by police or other government

agents "is the chief evil against which

the wording of the Fourth Amendment is

directed". United States v. United

States District Court, 407 U.S. 297, 313

(1972).

In 1961 the Opinion of a unanimous

Court called upon the "long history" of

the Fourth Amendment and stated:

"At the very core stands the

right of a man to retreat into

his own home and there be free

from unreasonable governmental

intrusion."

Silverman v. United States, 365 U.S. 505,

511 (1961). More recently this Court

has maintained its insistence that one's

home be generally regarded as a safe

haven.

"The Fourth Amendment protects

the individual's privacy in a

variety of settings. In none

is the zone of privacy more

clearly defined than when

bounded by the unambiguous

physical dimensions of an in-

dividual's home — a zone that

finds its roots in clear and

13

specific constitutional terms,

In terms that apply

equally to seizures of property

and to seizures of persons,

the Fourth Amendment has

drawn a firm line at the

entrance to the house."

Payton v. New York, 445 U.S. 573, 589,

590 (1980).

II. WARRANTLESS NON-CONSENSUAL POLICE

ENTRIES INTO PRIVATE HOMES AT

NIGHT TO PRESERVE EVIDENCE OF

NON-CRIMINAL TRAFFIC VIOLATIONS

ARE NOT JUSTIFIED.

Respondent would justify the un-

welcome visit of the police to Mr. Welsh's

bedroom as being required by the exi-

gencies of the situation. It is claimed

that evidence of Mr. Welsh's alleged

drunk driving would dissipate over time

if the Constitution interfered with an

immediate arrest. Assuming, arguendo,

evidence would diminish if the officers

took time in an attempt to secure a

14

warrant, the warrantless, non-consensual

entry is still not legitimate.

A balancing test is used to judge,

categorically, the validity of searches

and seizures in various situations.

".,.the constitutionality of

a particular search is a

question of reasonableness

and depends on ‘a balance

between the public interest

and the individual's right

to personal security free

from arbitrary interference

by law officers'"

Mincey v. Arizona, 437 U.S. 385, 406

(separate opinion of Rehnquist, J.)

(1978), quoting United States v.

Brignoni-Ponce, 422 U.S. 873, 878 (1975).

In the instant case, the state seeks

indicia of drunk driving in the form of

blood alchohol level test results. The

public interest in obtaining this ad-

ditional evidence for use in a non-

criminal, traffic regulation forfeiture

action is overwhelmed by the importance

of the protection which the Fourth

15

Amendment guarantees, in light of the

severity of the governmental intrusion

upon personal liberty here.

Repeatedly, this Court has pointed

out the significance and public im-

portance of felony matters as compared

to non-felonies, On the precise question

of police authority to make warrantless

arrests, this distinction is clearly

drawn.

"Under the English common law,

a police officer had power

without a warrant to arrest

persons committing a misde-

meanor in the officer's

presence and persons whom

the officer had reasonable

cause to believe had commit-

ted a felony. This rule,

which had its origin in the

ancient formative period of

the common law, was firmly

established at the time of

the adoption of the Fourth

Amendment ."

Trupiano v. United States, 345 U.S. 699,

713 (Vinson, C.J, dissenting) (1948).

Even prior to Trupiano, the reasoning

behind the felony/misdemeanor distinction

16

was discussed by the Court. In Carroll

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

this Court stated:

"The reason for arrest for mis-

demeanors without warrant at

common law was promptly to

suppress breaches of the peace

while the reason for arrest

without warrant on a reliable

report of a felony was because

the public safety and the due

apprehension of criminals

charged with heinous offenses

required that such arrests

should be made at once with-

out warrant (citation omitted)."

Carroll v. United States, 267 U.S. at

a37.

Warrantless daylight arrests in

public places were upheld in United

States v. Watson, 423 U.S. 411 (1976).

Sanction by this Court of such arrests

was predicated on the felony status of

the offense. A "constitutional standard"

was recognized that a warrantless arrest

may be made "where there are reasonable

grounds to believe that the person to be

arrested has committed a felony."

Mr 17

United States v. Watson, 423 U.S. at

417. The dissent in Watson exposed the

importance of the felony/non-felony

distinction. Justice Marshall, dis-

senting, acknowledged the common law

rule that a warrantless arrest may be

made for a felony upon probable cause,

Justice Marshall argued, however, that

the definition of "felony" has changed.

"Only the most serious crimes

were felonies at common law,

and many crimes now classi-

fied as felonies under

federal or state law were

treated as misdemeanors”

United States v. Watson, 423 U.S. at

439, 440.

The clear language of Watson, both

majority and dissent, shows that this

Court has never authorized the warrant-

less arrest of a non-felony suspect for

an offense committed outside the

presence of the officer. No such arrests

have ever been authorized, even in

public places, in broad daylight.

Respondent would mutilate the

Fourth Amendment by giving beat officers

the right to barge literally into our

bedrooms for lesser law violations than

even misdemeanors.

Notwithstanding its status as a

non-criminal offense, drunk driving is

a serious problem. No one disputes the

"well documented" "carnage caused by

drunk drivers". South Dakota v. Neville,

— U.8, _, 103 &.Ct. 916, 920, 74

L.Ed,2d 748, 51 U.S,L.W. 4148,

(February 22, 1983).

Nevertheless, the people of Wisconsin

have chosen to designate drunk driving

as a non-jailable offense and to des-

ignate repeat offenses as misdemeanors.

Wis. Stat. §346.63(1), 346.65(2). Ina

different context, this Court has ad-

dressed the importance and meaning of

society's determination of the maximum

19

possible penalty for a particular

violation.

"In deciding whether an offense

is 'petty', we have sought ob-

jective criteria reflecting the

seriousness with which society

regards the offense, ... and

we have found the most re-

levant such criteria in

the severity in the maximum

authorized penalty."

Baldwin v. New York, 399 U.S. 66, 6%

(1970) (citations omitted).

"The penalty authorized by

law of the locality may be

taken ‘as a gauge of its

social and ethical judge-

ments' ... of the crime

in question."

Duncan v. Louisiana, 391 U.S. 145, 160

(1968) (citation omitted).

It would be wholly inapvropriate

for this Court to make a "drunk driving

exception" to the rule forbidding non-

felony warrantless arrests for viola-

tions which occur outside the officer's

presence. That issue, however, need

not be reached in this case. Here, the

20

walls of the private residence protect

the individual even from a warrantless

felony arrest absent a "compelling need"

for an immediate entry. Payton v. New

York, 445 U.S. 573 (1980), Michigan v.

Tyler, 436 U.S. 499, 509 (1978).

The governmental interest which

could be served by allowing the police

to arrest alleged drunk drivers at home

in their beds is not concurrent with or

equal in magnitude to the public in-

terest in generally getting drunk drivers

off the road. The only possible value

in allowing officers to violate the

sanctity of a suspect's home is the

incremental additional ability to pro-

secute those few people who may be ar-

rested in this unusual manner. Although

there should be grave concern that this

police tactic will be used all too often,

the effect on society's ability to

21

protect itself from drunk drivers must

be minimal.

Ironically, had the officer in this

case sought a warrant for the arrest of

Mr. Welsh upon the non-criminal charge

of driving while intoxicated, no such

warrant could have been legally issued.

Wisconsin's criminal procedure code

requires that a summons be used instead

of an arrest warrant where the maximum

possible penalty is six months imprison-

ment or less. Wis. Stat. §968.04(2)(b).

Wisconsin's traffic code requires that,

for issuance of warrants, the criminal

code provisions be followed. Wis. Stat.

§345.21(1).

The relevant statutes have remained

unchanged since the time of Mr. Welsh's

arrest, and are set forth below:

345.21 AUTHORITY TO ARREST

WITH A WARRANT, (1) A person

may be arrested for the vio-

lation of a traffic regulation

22

with a warrant that substan-

tially complies with ch. 968.

Except as provided in sub. (2),

the person arrested shall be

brought without unreasonable

delay before a court having

jurisdiction to try the

action or a judge.

Wis. Stat. §345,21(1).

968.04 WARRANT OR SUMMONS

ON COMPLAINT.

(2)(b) In misde eanor actions

where the maximum imprisonment

does not exceed 6 months, the

judge shall issue a summons

instead of a warrant unless

he believes the defendant

will not appear in response

to a summons,

Wis. Stat. §968.04(2)(b).

To allow government agents to ac-

complish without judicial scrutiny what

would be unavilable by court order

would be perverse.

Even under Justice White's dis-

senting opinion in Payton v, New York,

445 U.S. 573, 603 (1980), which would

have established four independent

92

requirements for the validity of home

arrests, the entry here would be

unconstitutional.

"These four restrictions on

home arrests — felony, knock

and announce, daytime, and

stringent probable cause —

constitute powerful and com-

plimentary protections for

the privacy interests asso-

ciated with the home. The

felony requirement guards

against abusive or arbitrary

enforcement and ensures in-

vasions of the home occur

only in case of the most

serious crimes. The knock-

and-announce and daytime

requirements protect indivi-

duals against the fear,

humiliation, and embarras-

sment of being aroused from

their beds in states of partial

or complete undress. And these

requirements allow the arrestee

to surrender at his front door,

thereby maintaining his dignity

and preventing the officers

from entering other rooms of

the dwelling."

Payton v. New York, 445 U.S. at 616, 617.

Although probable cause is not an

issue on this appeal, it is doubtful

whether Justice White's "stringent

probable cause" is supported in the

record below. State v. Welsh, 108 Wis,

2d 319 at 345-352, 321 N.W.2d 245,

258-262 (1982) (Abrahamson, J., dissent-

ing). It is undisputed that this arrest

was not for a felony and not during day-

time. Furthermore, the officers did

not allow Mr. Welsh to surrender at his

front door and nothing was done to pro-

tect him from the "embarrassment of

being aroused from" his bed in a state

of complete undress.

Under these circumstances, the hope

of preserving a bit of evidence for a

forfeiture action trial cannot overcome

the presumption that the warrantless

entry was unreasonable.

25

III. THE PEOPLE WOULD BE STRIPPED OF

THEIR EXPECTATION OF PRIVACY IN

THE HOME WERE WARRANTLESS ENTRIES

ALLOWED FOR NON-CRIMINAL ARRESTS,

A United States Supreme Court

decision upholding the validity of

Mr. Welsh's arrest would shatter the

Fourth Amendment. Police could enter

any home at any time of the day or night

looking for evidence which might dis-

appear if they didn't act quickly.

Agents of government will swiftly

find "exigencies" in almost any situa-

tion. An immediate home entry might be

required to learn the identity of an

individual observed driving a vehicle

in excess of posted limits, or someone

who had been seen by a third party

spitting on the sidewalk. The officer

will maintain that, absent an immediate

identification, the suspect would change

clothes and the valuable evidence would

be lost.

Governmental bodies or public

interest groups may place advertisements

on television and in newspapers sug-

gesting that citizens "turn in a drunk

driver". Good Samaritans would get

the license number of a vehicle driven

erratically and call the "drunk driving

hot line". After learning the witness'

story, police might well invade the home

of the person to whom the vehicle is

registered. Would the officers stand

at the front door and request to meet

the vehicle owner? At the Welsh home,

they barged right in. Affirmance of the

court below would authorize regular

nighttime room-to-room home searches by

officers seeking drunk driving suspects.

In balancing any warrantless

governmental intrusion onto private

property, the measuring begins with the

scales tipped in favor of privacy.

Added to this is the weight of the

special protection afforded by a per-

sonal residence, for the balancing

required in this case.

On the other side of the scale is

placed the "public interest" to be

served by allowance of such nighttime

home searches and seizures. But on

these facts the scales never move.

"(Ijt is difficult to

imagine a more severe inva-

sion of privacy than the

nighttime intrusion into a

private home."

Jones v, United States, 357 U.S. 493,

498 (1958).

The privacy interests are so strong and

the public value of the intrusion is

so minimal that the balance cannot be

tipped. The right of privacy must

prevail.

9Q

CONCLUSION

The Wisconsin Civil Liberties Union

Foundation supports the position of

petitioner Edward G. Welsh.

The relief we are seeking is re-

versal of the Wisconsin Supreme Court

and remand of the case to the trial

court.

Respectfully submitted,

WISCONSIN CIVIL LIBERTIES

UNION FOUNDATION

Calis F Koln, jr.

Charles F, Kahn, Jr.

Counsel of Record

Kahn & Levine

759 North Milwaukee Street

Milwaukee, Wisconsin 53202

(414) 276-6900

April 21, 1983

29