Petition for Writ of Certiorari — Guffey v. City of Kirksville

a

a syne Bout, US,

87-1534 riGeED

Mau 14 1988

SOSEH FF. SPAMIOL, UR, |

N —

In the Supreme Court of the United States

OCTOBER TERM, 1987

GREGORY D. GUFFEY,

Petitioner,

VS.

CITY OF KIRKSVILLE, MISSOURI,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

MISSOURI COURT OF APPEALS,

WESTERN DISTRICT

Rosert G. DUNCAN

Counsel of Record

2800 B Kendallwood Parkway

Kansas City, Missouri 64119

(816) 455-0555

Attorney for Petitioner

E. L. MENDENBALL, INnc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

QUESTIONS PRESENTED FOR REVIEW

I

May Law Enforcement Officers Enter A Private Res-

idence Without A Warrant To Arrest For Alleged Munic-

ipal Traffic Ordinance Violations Which Are Civil In

Nature?

A.

Will A Possible Fine of Five Hundred Dollars And

A Jail Sentence Of Three Months For Such A Violation

Authorize Such An Invasion To Arrest For Such A Vio-

lation?

B.

Will Hot Pursuit Authorize Such An Invasion To

Arrest For Such A Violation?

II

TABLE OF CONTENTS

Questions Presented for Review ~..................cccceceeceeeeeees I

Table of Contemits .........:4.:c..0 eee II

Table of Authorities ........5.20.4..2...050eeeee . Il

Opinions Below @.20.240.00:3...0:4..05.00e eee 1

Statement of Jurisdiction 2... 2

Constitutional Provisions, Statutes and Ordinances

Imvol ved ............-...:.s0sscncsassuecssernsalstiielnnenanenaa nanan 3

Statement of the Case ..........000.... eset Lpdascg sucaamaleaseuees 5

AY Urmen it anna nines ieccnnesicd nee sn 9

Certificate of Service ..........2.......e esas -16

Appendix—

Exhibit A—Memorandum and Order of Circuit

Court of Adair County, Missouri dated

October 21], 1968 ......c.eeee Al

Exhibit B—Opinion of Missouri Court of inonaila

dated September 15, 1987 .........000000..... A5

Exhibit C—Notice from Missouri Court of Ap-

peals dated October 25, 1987 ...........All

Exhibit D—Order of Missouri Supreme Court

dated December 15, 1987 0.0.0... Al2

Ill

TABLE OF AUTHORITIES

Cases

Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477, 20 L.Ed.

I a a caaieialioeniis 15

City of Kirksville v. Guffey, 740 S.W. 2d 227 (Mo.

INE IIIT” <ceidanibessltnienlcraniontehoteahnenshaciescsencdeeniidinaaiasnshuationaiases 1

Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444,

a __—_ RISEN STC Rare DE Se 15

Kansas City v. Franklin, 401 S.W. 2d 949 (Mo. App.

ITY TIT TL1As5 io asldae eensanscopaiatehenhabbiiguonsomnebuatvanemadiaduniaeieseaiet 12

Kansas City v. Mathis, 409 S.W. 2d 280 (Mo. App

EEA Ae SSCA ESSE Na ta oan aioe ern ROARS 2,12

Kansas City v. Stricklin, 428 S.W. 2d 721 (Mo. banc

TILE saan as coansieecagineicarcobiiblaainsencacessannctsentiiisnbobandcnades 12

Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371,

G3 L.Ed. 2d G39 (1980) ........................... 9, 10, 11, 12, 14, 15

Riddick v. New York, 445 U.S. 573, 100 S. Ct. 1371,

A sR ne eC Ee ieee 11

Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642,

I IE, Bsc oceanpsimeentsnswnninsnetnontanesnnsennint 10

United States v. Watson, 423 U.S. 411, 96 S. Ct. 820,

TE ed, __ RRR cman re SI ee 10

Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18

I ED, 65s 0... sasplictonatinsationavsiaalgeaisianbiabnen 10

Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091,

ee Re” EG.) a aT 11, 12, 13, 15

IV

Other Authorities

Constitution of United States—

Fourth Amendment ....... are? ETT IAT 3,9,11

Pourteenth Amendment ..........................--.--......-...... 3

United States Code, Title 28—

NS I, I ea ada acuanaseaialeabondann 2

ny I aa cadanuceh inabsouesemnnanieien 2

Missouri Revised Statutes (1986)—

Section 300.105 —.......... Siar 2 QOH PRES oye Sere Prebee aoe PRN 3,5

Ordinances of Kirksville, Missouri—

eo FD > 8 Nn ee ae eee 4,5

Ordinance Number 13-10.4 .......... Peeters PURE EIR 4

Ordinance Number 13-10.5 2000000...cccce cece 5

No.

In the Supreme Court of the United States

OCTOBER TERM, 1987

GREGORY D. GUFFEY,

Petitioner,

VS.

CITY OF KIRKSVILLE, MISSOURI,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

MISSOURI COURT OF APPEALS,

WESTERN DISTRICT

OPINIONS BELOW

The Circuit Court of Adair County, Missouri, Kirks-

ville Municipal Division, rendered no written opinion.

Upon trial de novo the Circuit Court of Adair County,

Missouri, filed a written Memorandum and Order, on

October 21, 1986, which is not officially reported. A copy

of that Order is annexed hereto as Exhibit A.

Upon appeal the Missouri Court of Appeals, Western

District, on September 15, 1987, filed its Opinion affirming

Petitioner’s municipal ordinance violation convictions.

This Opinion is reported at 740 S.W. 2d 227 (Mo. App.

1987). A copy of that Opinion is annexed hereto as

Exhibit B.

2

The Missouri Court of Appeals, Western District, on

October 27, 1987, overruled Petitioner's Motion for Re-

hearing and Denied Petitioner’s Application for Transfer _

to the Missouri Supreme Court. A copy of the Notice

of such action is annexed hereto as Exhibit C.

The Missouri Supreme Court on December 15, 1987,

entered an order denying Petitioner's Application for

Transfer filed therein. A copy of that Order is annexed

hereto as Exhibit D.

STATEMENT OF JURISDICTION

The Supreme Court of Missouri entered its Order,

Exhibit D, denying Petitioner's timely Application for

Transfer from the Missouri Court of Appeals, Western

District, on December 15, 1987. Thus petition for writ

of certiorari is filed within ninety (90) days of that

order and is therefore timely under the provisions of

Title 28, United States Code, Section 2101 (c), this matter

involving the review of three municipal court ordinance

violations originally filed in the Circuit Court of Adair

County, Missouri, Kirksville Municipal Division, which

under Missouri law are civil proceedings. See Kansas

City v. Mathis, 409 S.W. 2d 280, 289 (Mo. App. 1966).

This Court has jurisdiction to review the judgment

below by writ of certiorari, under the provisions of Title

28, United States Code, Section 1257 (3), since there is

involved herein, rights, privileges and immunities claimed

under the Constitution.

3

CONSTITUTIONAL PROVISIONS, STATUTES AND

ORDINANCES INVOLVED

United States Constitution:

Fourth Amendment

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

and effects, against unreasonable searches and sei-

zures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place

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

Fourteenth Amendment

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property, without due pro-

cess of law; nor deny to any person within its juris-

diction the equal protection of the laws.”

Revised Statutes of Missouri:

Section 300.105

Operation of vehicles on approach of authorized emer-

gency vehicles

“1. Upon the ‘mmediate approach of an authorized

emergency vehicle mokin« use o: wudible and visual

signals meeting the requirements of the laws of this

state, or of a police vehicle properly and lawfully

making use of an audible signal only:

(1) The driver of every other vehicle shall yield

the right-of-way and shall immediately drive to

a position parallel to, and as close as possible

to. the right-hand edge or curb of the roadway

4

clear of any intersection and shall stop and re-

main in such position until the authorized emer-

gency vehicle has passed, except when otherwise

directed by a police officer;

(2) Upon the approach of an authorized emer-

gency vehicle, as above stated, the motorman

of every streetcar shall immediately stop such

car clear of any intersection and keep it in such

position until the authorized emergency vehicle

has passed, except when otherwise directed by

a police officer.

2. This section shall not operate to relieve the driver

of an authorized emergency vehicle from the duty

to drive with due regard for the safety of all persons

using the highway.”

Ordinances of the City of Kirksville, Missouri:

Section 13-10.1 Driving While Intoxicated or With

Certain Alcohol Content.

“No person shall operate a motor vehicle while in

an intoxicated condition.” (Ord. No. 10142.)

Section 13-10.4 Same—Penalties.

“(a) Any person who violates the provisions of sec-

tions 13-10.1 or 13-10.2 shall be deemed guilty of a

misdemeanor and on conviction shall be punished as

follows:

(2) For the first violation of section 13-10.1, by

a fine of not less than one hundred dollars nor

more than five hundred dollars or by confine-

ment in a jail used by the city for a term not

exceeding three months or by both such fine

and imprisonment;

(4) For a second violation of section 13-10.1, by

a_fine of not less than two hundred dollars nor

5

v

more than five hundred dollars, or by confine-

ment in a jail used by the city for a term not

exceeding three months or by both such fine

and imprisonment;

(6) For the third and subsequent violations of

section 13-10.1, by a fine of not less than three

hundred dollars nor more than five hundred dol-

lars, or by confinement in a jail used by the city

for a term of not less than two, nor more than

three months, or by both such fine and imprison-

ment.”

. (Ordinance No. 10142.)

Section 13-10.5 Driving in careful, prudent manner.

“Every person operating or driving a motor ve-

hicle shall drive and operate the same in a care-

ful and prudent manner and shall exercise at

all times the highest degree of care in the opera-

tion of the same.”

STATEMENT OF THE CASE

The Petitioner was originally charged with three vio-

lations of the municipal ordinances of the City of Kirks-

ville, Missouri, a college town with a population of ap-

proximately 18,000. These were alleged to be (1) driving

while intoxicated in violation of Ordinance Number

13-10.1, (2) not careful and prudent driving by means

of excessive speed and failure to obey traffic signs, in

violation of Ordinance Number 13-10.5, and (3) failure

to yield to emergency vehicle, in violation of Missouri

Model Traffic Ordinance Section 300.105, Revised Statutes

of Missouri. The Petitioner was found guilty in the

Municipal Division and requested a trial de novo before

a circuit judge.

6

That trial was held in the Circuit Court of Adair

County, Missouri, without a jury. Prior to that trial

Petitioner filed a Motion to Suppress Evidence which was

taken with the case. Evidence was heard and the Court

took the matter under advisement, eventually entering

a Memorandum and Order (Exhibit A) finding the Peti-

tioner guilty of all three violations and entering a judg-

ment that the Petitioner be fined respectively $250.00,

$50.00 and $50.00 and costs.

The City’s evidence consisted primarily of the testi-

mony of city police officers. Patrolman Roberts testified

that on the night and early morning hours of January

23-24, 1986 he observed a red Camaro being driven south-

bound on Davis Street in Kirksville, Misscuri. Roberts

followed the red Camaro eastbound on Harrison Street,

following at a distance of approximately one block. While

travelling east on Harrison Street Roberts observed the

red Camaro travelling ‘from the south side of the road-

way to the north side of the roadway.”

Roberts observed the license plate tag on the red

Camaro and believed it at the time to belong to the

Petitioner. The red Camaro then crossed the center line

and Roberts activated the emergency lighting equipment

on top of his car. The red car then turned north onto

Cottage Grove, ran a stop sign at the next intersection

(Illinois Street) and turned west onto Illinois Street.

As the car turned west Roberts, from a distance of 70 to

100 feet, ‘could only see one subject in the cockpit area,

one subject in the vehicle’ and “identified him as being

a white male” but “could not” identify him. He could

only see the profile of the head, and said in his opinion

that it was a male because it had short hair. The Peti-

tioner’s hair length was substantially below his collar.

7

Roberts next pursued the red Camaro northbound on

Highway 63 at speeds approximately 105 miles per hour

before chasing the car into a residential area. Roberts then

saw the red car turn into a horse-shoe shaped driveway

at 1110 Queens Road, a house owned by the Petitioner.

The Camaro entered on the west entrance of the drive-

way and Roberts on the east. Roberts was approximately

“a half block to a block” behind the Camaro.

The next observation by Roberts was viewing the

red Camaro in the garage area. At that point in time

he observed Mr. Guffey leaving from the garage area,

going into the residence through a doorway in the garage.

“The garage door was open and had a light on in the

garage. The Defendant was wearing a red T-shirt and

blue jeans.” It was a very cold January night and the

Petitioner did not have on a coat.

Roberts exited his patrol car while the automatic

garage door was closing and he stopped it with his foot.

Immediately thereafter Roberts peered into the kitchen

window and “observed a white female in a kitchen area”

with “blonde hair”.

Officers Youngblood and William Fay, who also ar-

rived at the scene, then entered the garage going under

the garage door; the garage door was then opened by

one of the officers and Roberts entered the garage and

proceeded to the door leading into the residence. They

knocked, announced their presence, got no response and

entered the residence. The three officers walked up the

basement stairs to the main floor and then entered a

bedroom and turned on the bedroom light. The Peti-

tioner and a white female were in bed. The female

was fully clothed. Mr. Guffey had on the same red

T-shirt and blue underwear. Roberts testified that Mr.

8

Guffey was “extremely intoxicated”. The female also

appeared to be intoxicated. She was identified as being

Ann Emmerick.

Mr. Guffey was then handcuffed and taken to Police

- Headquarters. Mr. Guffey refused the administering of

the breathalyzer test. Mr. Guffey denied operating the

motor vehicle.

After finding Mr. Guffey and Ann, the officers did

not check any other bedrooms to see if there was anyone

else there.

Officer Youngblood testified they had no search or

arrest warrant to enter the home or arrest the Petitioner

nor was there any consent to enter.

Officer Gates also responded to Petitioner’s home.

Going east on Queens Road, Officer Gates observed a

red Camaro turn into the driveway. He observed one

person in the vehicle but could not distinguish whether

male or female.

The State called Ann Emmerick, who after stating

she was married to the Petitioner subsequent to the

January 24, 1986 arrest, refused “to testify on the grounds

that it might incriminate myself or my husband”. The

Petitioner adduced no evidence.

9

ARGUMENT

REASONS RELIED ON FOR GRANTING

THE WRIT

Petitioner respectfully suggests that the issues pre-

sented herein are important questions of federal consti-

tutional law which should be settled by this Court. May

a police officer, who is attempting to arrest a person for

a city ordinance traffic violation, enter a private house

without a warrarit to arrest or to search?

Searches and seizures inside a home without a war-

rant are presumptively unreasonable under the Fourth

Amendment. Payton v. New York, 445 U.S. 573, 100

S. Ct. 1371, 63 L.Ed. 2d 639 (1980).

The Fourth Amendment applies equally to seizures

of persons and to seizure of property. Payton v. New

York, supra.

The right of a man to retreat into his own home

and there be free from unreasonable government intru-

sion is at the very core of the Fourth Amendment.

The Fourth Amendment, in terms that apply equally

to seizures of property and to seizures of persons, has

drawn a firm line at the entrances to houses which may

not reasonably be crossed without a warrant in the ab-

sence of exigent circumstances. Payton v. New York,

supra.

This Court in passing on similar issues has distin-

guished between arrests for felony and other arrests;

and between arrests occurring in public places, arrests

in private places; and arrests in the private property of

the arrestee. Basically, this Court has ruled that when

premises searches are involved, a search warrant is re-

10

quired unless the circumstances are exigent or a valid

consent has been given beforehand. Exigent circum-

stances usually mean an established risk that the person

sought would escape, that evidence would be lost, dam-

aged or destroyed, or that the safety of the officers or

other persons would be endangered had the officers failed

to act while a warrant was being sought. In United

States v. Watson, 423 U.S. 411, 96 S. Ct. 820, 46 L.Ed. 2d

598 (1976) this Court held that officers could arrest

without a warrant where the arrest was taking place

in a public place, even though no exigent circumstances

were present. In Payton v. New York, supra, it was held

that where the arrest was to take place in the arrestee’s

dwelling the officer must obtain a warrant beforehand

before he may enter to make the arrest. i

If the arrestee is to be arrested on premises other

than his own and other than at a public place, then the

officer must obtain, in advance, a search warrant for the

location. See Steagald v. United States, 451 U.S. 204,

101 S. Ct. 1642, 68 L.Ed. 2d 38 (1981). In that situation

the right of a third party intervenes.

In Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642,

18 L.Ed. 2d 782 (1967), it was held that the require-

ment of a warrant was not necessary where the officers

were pursuing a felon and that officers in hot pursuit

may follow such a suspect into a third person’s private

property and search places within a structure where the

individual might conceal himself or herself. It is impor-

tant, again, to point out-that the present Petitioner was

not being arrested for a felony or even for a misdemeanor,

but the officer sought to arrest him for a civil City Ordi-

nance violation. The principal case involving the ar-

restee’s own house is Payton v. New York, supra. In

11

that case the officers had probable cause to believe that

Payton was guilty of murder. Detectives went to the

defendant’s apartment to arrest the defendant, without

a warrant. Lights emanated from the apartment, but

the officers received no response to their knock, and

they forcibly entered the apartment. No one was present

but the officers did seize evidence incriminating in nature.

In Riddick v. New York, which was consolidated with

Payton for Argument and Opinion, the officers had prob-

able cause to believe that the Defendant was guilty of

robbery. The officers went to Riddick’s home without

a warrant. Riddick’s son answered the knock on the

door and officers observed Riddick inside the house. The

officers then entered the home and arrested Riddick.

Incriminating evidence was also found. It was held as

to both cases, that the Fourth Amendment prohibited

the police from making a warrantless and nonconsensual

entry into a suspect’s home in order to make a felony

arrest. The suspect’s privacy interest in his home out-

weighed any government interest.

In Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091,

80 L.Ed. 2d 732 (1984), Welsh was seen driving errat-

ically eventually leaving his car in an open field. Police

arrived at the scene and were advised, by witnesses,

of what they had observed. Officers checked the vehicle

registration and proceeded to Welsh’s home. They had

no arrest warrant. Welsh’s daughter answered the door

and policemen entered the home. This was minutes

after Welsh had left the scene. Welsh was lying naked

in bed, apparently drunk. He was then arrested and

charged with driving while intoxicated. He refused to

submit to a breath test and under Wisconsin law such

a refusal led to a 60-day license suspension. Welsh

claimed that his refusal was the result of an unlawful

12

arrest and therefore his license should not have been

suspended. This Court first discussed Payton v. New

York, supra, and pointed out that there the Court had

not elaborated on the meaning of the term “exigent cir-

cumstances”. The Court pointed out that warrantless

arrests and searches and seizures inside the home are

presumptively unreasonable and that the government

bears the burden of demonstrating exigent circumstances

in order to defeat that presumption. Most cases refuse

to allow warrantless arrests in the home for non-serious

crimes. The Court then pointed out that in Welsh there

was no hot pursuit and the Court rejected any public

safety rationale as well as any argument that an imme-

diate arrest was necessary to ascertain Welsh’s blood

alcohol level and thus prevent the destruction of evi-

dence. The Court concluded that a warrantless arrest

in a private home could not be justified on that basis.

The Court pointed out that under Wisconsin law the

offense for which the defendant was arrested was a non-

criminal violation and was minor in nature. In our

present case, the hot pursuit of the red Camaro was not

for a felony, but for a City Ordinance violation which,

under the law of Missouri, is a civil offense. See Kansas

City v. Stricklin, 428 S.W. 2d 721 (Mo. bane 1968);

Kansas City v. Mathis, 409 S.W. 2d 280 (Mo. App. 1966);

Kansas City v. Franklin, 401 S.W. 2d 949 (Mo. App. 1966).

The fact that the ordinance may refer to its violation

as being a misdemeanor does not change this, it is not

a misdemeanor under Missouri law.

Welsh cites exigent circumstances to be:

a. An established risk that the person sought would

escape;

13

b. That evidence would be lost; or

c. That the safety of the officers or other persons

would be endangered had the officers failed to act while

seeking a warrant.

In our present case as in Welsh, the three Municipal

Court violations are not criminal violations. As in Welsh,

there was no hot pursuit—-for here it had ended. Officer

Gates was at the front door and three officers at the rear.

The car had been abandoned. The pursuit was over.

Unlike Welsh, where a bystander had spoken to the

defendant and observed he was drunk or sick; here,

Roberts had no probable cause that the driver of the

red car was intoxicated. He had seen the red car cross

the center line two times—one where repairs were being

made for potholes, after making an adequate stop at the

preceding intersection. He observed the red car then

outrun and outmaneuver him through fast cornering and

high speed. He had no probable cause to believe the

driver was intoxicated prior to his entry into the house.

Therefore, the exigent circumstances argument of dis-

sipation of evidence is moot.

Sergeant Youngblood had attended Junior and Senior

High School with Petitioner and had known him for a

long time. He testified he was not afraid the Petitioner

would harm him, nor was he afraid the Petitioner would

escape.

As to exigent circumstances Welsh held: “We there-

fore conclude that the common-sense approach utilized

by most lower courts is required by the Fourth Amend-

ment prohibition of unreasonable searches and seizures,

and hold that an important factor to be considered when

determining whether any exigency exists is the gravity

14

of the underlying offense for which the arrest is being

made. Moreover, although no exigency is creaied simply

because there is probable cause to believe that a serious

crime has been commitied, see Puyton, application of the

exigent-circumstances exception in the context of a home

entry should rarely be sanctioned when there is probable

cause to believe that only a minor offense, such as this

kind at issue in this case, has been committed. Applica-

tion of this principle to the facts of the present case is

relatively straightforward. The Petitioner was arrested

in the privacy of his own bedroom for a noncriminal

traffic offense. The State attempts to justify the arrest

by relying on the hot-pursuit doctrine, on the threat to

public safety, and on the need to preserve evidence of

the Petitioner’s blood-alcohol level. On the facts of this

case, however, the claim of hot pursuit is unconvincing

because there was not immediate or continuous pursuit

of the Petitioner from the scene of a crime. Moreover,

because the Petitioner had already arrived home, and

had abandoned his car at the scene of the accident, there

was little remaining threat to the public safety. Hence,

the only potential emergency claimed by the State was

the need to ascertain the Petitioner’s blood-alcohol level.

Even assuming, however, that the underlying facts would

support a finding of this exigent circumstance, mere sim-

ilarity to other cases involving the imminent destruction

of evidence is not sufficient. The State of Wisconsin has

chosen to classify the first offense for driving while

intoxicated as a noncriminal, civil forfeiture offense for

which no imprisonment is possible ... This is the best

indication of the State’s interest in precipitating an ar-

rest, and is one that can be easily identified both by the

courts and by officers faced with a decision to arrest .. .

Given this expression of the State’s interest. a warrant-

15

less home arrest cannot be upheld simply because evi-

dence of the Petitioner’s blood-alcohol level might have

dissipated while the police obtained a warrant. To allow

a warrantless home entry on these facts would be to

approve unreasonable police behavior that the principles

of the Fourth Amendment will not sanction.”

The Circuit Court of Adair County relied upon, “hot

pursuit” to justify the officers’ warrantless intrusion into

the Petitioner’s home. That Court, however, was mis-

taken in referring to the DWI offense as being a misde-

meanor with the third offense being a felony. In Missouri

that is only true where a defendant is charged with DWI

under the State law in the State criminal courts and is

not true where, as here, the Petitioner is charged by city

police officers with a municipal ordinance violation in a

Municipal Division of the court.

The Missouri Court of Appeals, in affirming, relied

upon not only “hot pursuit” but on the need to preserve

evidence, saying that the possible $500.00 fine and three

(3) month jail sentence authorized for a violation of the

City Ordinance made Welsh inapplicable. That Court

overlooked that the officers did not have probable cause

to believe the Petitioner was intoxicated at the time they

invaded the house.

In other instances this Court has held that a “petty

offense” is one that involves a six month jail sentence

or less. See Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct.

1444, 20 L.Ed. 2d 491 (1968) - right to jury trial; and

Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477, 20 L.Ed.

2d 522 (1968) - contempt of court trials.

It is extremely important that the parameters of

authority of law enforcement officers to invade the pri-

vacy of a residence be fixed so that an officer will know

16

what he can and what he cannot legally do. Welsh did

not set these parameters. It is respectfully submitted

that the Court should issue its writ of certiorari and

determine this issue in this case.

CERTIFICATE OF SERVICE

Three copies of tle foregoing Petition were mailed

first class mail, postage prepaid to Howard Hickman,

Attorney at Law, 404 South Elson, Kirksville, Missouri

3501, Attorney for Respondent, this 14th day of March,

1988.

Rospert G. DUNCAN

Al

APPENDIX

EXHIBIT A

IN THE

CIRCUIT COURT OF ADAIR COUNTY, MISSOURI

AT KIRKSVILLE

CITY OF KIRKSVILLE, ) Case No.

Plaintiff, ) MU286-01383MTX

vs. ) MU286-0139MTX

GREGORY D. GUFFEY, ) MU286-0140MTX

Defendant. )

MEMORANDUM AND ORDER

The three municipal cases before the court for trial

de novo were consolidated for a jury waived trial before

the court. The charges are 1. driving while intoxicated,

2. not careful and prudent driving and 3. failure to yield

to an emergency vehicle. The parties have submitted

briefs to the court.

The first issue relates to the motion of the defendant

to suppress, seeking to suppress any evidence obtained

as the result of the police officers entry into the defen-

dant’s home without a warrant and evidence arising from

the alleged unlawful arrest of the defendant.

Very late on the night of January 23, 1986 Police

Officer Roberts observed a red Camero which was being

driven from side to side of a city street. After following

the Camero which substantially crossed the center line

several times thereafter, the officer turned on his emer-

gency equipment to alert the Camero to come to a stop.

Although the Camero slowed and seemed to yield as if

A2

it were going to stop, it suddenly accelerated and a chase

began. The pursuit was for some disiance at speeds up

to 95 miles per hour and ended at the defendant's res-

idence. As the officer pulled to the rear of defendant's

house, he saw a person he identified as the defendant

running from the driver’s door of the Camero to the

entrance door of the defendant’s house. Although the

garage door had begun to descend, the officer was able

to stop it when it reached approximately ten inches above

the ground. Thereafter, although it was known that de-

fendant and a young woman were in the residence, no

response was made to the ringing of the doorbell, knock-

ing on the door, or the police officers identification of

themselves and their purpose. Thereafter, without a

warrant, the officers entered the house and arrested the

defendant who was apparently intoxicated.

The Fourth Amendment of the American Constitu-

tion provides:

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

houses, papers, and effects, against unreasonable

searches and seizures shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons

or things to be seized.”

It is clearly held that the Fourth Amendment pro-

hibits police officers from making warrantless and non-

consensual entries into a suspects home in order to make

a routine felony arrest in the absence of exigent circum-

stances. Payton v. New York, 100 S.Ct. 1371, 63 L.Ed.2d

639 (1980).

However, one of the “exigent circumstances” is the

“hot pursuit” of a fleeing suspect. The suspect “may

A3

not defeat an arrest which has been set in motion in

a public place, and is iherefore proper under Watson

[United States v. Watson, 423 U.S. 411, 46 L.Ed.2d 598

(1976) |] by the expedient of escaping to a private place.”

United States v. Santana, 427 U.S. 38, 49 L.Ed.2d 300

(1976).

In Santana the court found “hot pursuit” where the

defendant was first observed while standing in the door-

way of her house with the door open. The officers were

allowed to pursue her within the house under the cir-

cumstances of the case.

Both Payton and Santana involved felony arrests while

those here were for violations of municipal ordinances.

In Welch (sic) v. Wisconsin, 466 U.S. 740, 80 L.Ed.2d

732 (1984) it was held that absent exigent circumstances,

a warrantless nightime entry into an individuals home

to make an arrest for a civil nonjailable traffic offense

was prohibited by the Fourth Amendment. However,

a “hot pursuit” was not present in the case where the

drunken driver had returned home alone following an

accident prior to the arrival of the police. It was also

a critical factor of the case that a punishment for the

violation under the Wisconsin Statute as a noncriminal

civil forfeiture offense for which imprisonment was not

possible. To the contrary the municipal ordinance here

provides for fines up to $500 and up to three months in

jail for the offenses involved. It may also be noted that

an offense of driving while intoxicated, although a mis-

demeanor on the first two offenses, also constitutes a

felony offense on the third charge. The arresting officers

might have no basis to know whether the offense com-

mitted in their presence was a misdemeanor or felony.

There might be less likelihood that a suspect would flee

A4

arrest on an initial charge of D.W.I., but might be more

likely to flee in a high speed chase on a more serious

charge. If the officers had merely followed defendant

to his home after observation of erratic driving, they

could not have entered his home to arrest him. Sim-

ilarily, they could not have entered his home to arrest

him for nonjailable otfenses such as nonpayment of

parking tickets. However, in the instant case, under the

exigent circumstances of “hot pursuit’, the eniry into

the defendant’s home and his arrest were lawful. The

Motion to Suppress must therefore be denied.

Upon the evidence adduced on the issues presented,

the court finds the defendant guiliy of the charges of

Driving While Intoxicated, not careful and _ prudent

driving, and failure to yield to an emergency vehicle. It

will be the judgment of the court that the defendant

be fined respectively the sums of $250.00, $50.00 and

$50.00 and the cost of each case.

/s/ Bruce Normile

Circuit Judge

Dated: October 21, 1986

A5

EXHIBIT B

IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

CITY OF KIRKSVILLE, )

Respondent, ) _

v. ) No. WD 39094

GREGORY D. GUFFEY, )

Appellant. )

Opinion Filed: September 15, 1987

Appeal from the Circuit Court of Adair County

Honorable Bruce Normile, Judge

Before Kennedy, C.J., Presiding, Pritchard and Lowenstein,

JJ.

Defendant appeals from judge-tried convictions of

driving while intoxicated, careless and imprudent driving,

and failure to yield to emergency vehicle, all in violation

of the city ordinances of Kirksville. He was assessed a

fine of $250 for the intoxicated driving charge, and $50

for each of the other two. He appeals with two allega-

tions of trial error.

The facts are as follows:

City Patrolman Roberts about midnight on January 23,

1986, fell in behind a red Camaro driving along the city

streets of Kirksville. The Camaro in the space of a few

blocks drove halfway across the center line of the street

on three different occasions. Patrolman Roberts deter-

mined to stop the vehicle. He turned on his emergency

lights and drew closer to the Camaro. The Camaro, which

the officer recognized as belonging to the defendant, slowed

Vx

A6

down after a short distance as if to stop, then accelerated

rapidly. The officer at this point turned on his siren

along with his emergency lights. A race along the city

streets ensued, which reached speeds in excess of 100

miles per hour.

The Camaro arrived at defendant’s residence, and had

been parked in the lighted garage when Koberts drove

up. The defendant was going through a door which led

from the garage to his residence. The garage door was

descending as Roberts got out of his car and approached

the garage. He was able to arrest the door’s descent

with his foot 10 or 12 inches from the ground.

From a deck attached to the house Roberts knocked

on the door and demanded admittance. There was no

response. Through a kitchen window he saw a blonde

white woman in the kitchen. She was standing in front

of and facing an opened refrigerator.

Two other city police officers now arrived. One of

them crawled under the garage door and opened it. Fur-

ther pounding on the door by the officers and calls to

defendant still brought no response. They opened the

unlocked door from the garage and went up the stairs

into a bedroom. Defendant and the woman were in bed,

under covers. Defendant seemed to be asleep. The offi-

cers pulled off the covers. The woman was fully clothed.

The defendant had on the red T-shirt which he had been

wearing when Roberts saw him enter the house from

the garage and was in his sock feet. Beside the bed

was a pair of blue jeans, wet in the crotch area. De-

fendant’s shorts were also wet in that vicinity.

Defendant gave every evidence of being in an ad-

vanced state of intoxication. He mightily resisted the

officers’ attempt to arrest him, but at length they were

A7

able to wrestle him down the stairs and into their police

car. They arrived at tne police station at 12:15 am.

on January 24.

1. The legality of the arrest.

Defendant filed a motion to suppress “evidence ob-

tained by the Kirksville Police Department contempora-

neous with and subsequent to the illegal entry into the

residence of defendant.” The overruling of this motion

defendant says was error. He says the entry into his

house to arrest him without a warrant violated his Fourth

Amendment right to be free of unreasonable searches

and seizures, made applicable to the states by the Four-

teenth Amendment. Mapp v. Ohio, 367 U.S. 643 (1961).

He cites cases which hold warrantless home arrests un-

reasonable and illegal which would be permissible if made

in a public place. Payton v. New York, 445 U.S. 573

(1980). Warrantless home arrests are not condemned,

however, if they are justified by the exigencies of the

situation. Welsh v. Wisconsin, 466 U.S. 740 (1984). The

City claims that this arrest falls within the latter cat-

egory of cases.

We hold that the trial court was correct in denying

defendant’s motion to suppress evidence. The arrest was

lawful and the evidence gained thereby was admissible.

There were two features of the case which make the

exigent circumstances justifying the arrest—hot pursuit

and the need to preserve evidence.

Defendant expressly concedes that the officers had

grounds for a warrantless arrest outside defendant’s home,

but he claims that they could not validly effect a war-

rantless arrest by a nonconsensual entry into his house.

Re

A8

The officers, however, pursued defendant into his

house. It was a clear case of “hot pursuit’. It is held

that “a suspect may not defeat an arrest which has been

set in motion in a public place, and is therefore proper

under Watson [U.S. v. Watson, 423 U.S. 411 (1976)] by

the expedient of escaping to a private place.” US. v.

Santana, 427 U.S. 38, 43 (1976).

In addition to the element of “hot pursuit”, there

was present here the need to preserve evidence of de-

fendant’s blood alcohol level. There was probable cause

to suspect from the course of defendant’s driving that

he was intoxicated, and it was on that charge that the

officers made the arrest, along with the charge of failure

to yield to an emergency vehicle. Defendant’s blood

alcohol might have dissipated while a warrant was being

obtained, or he might have imbibed more alcohol, making

any chemical test unreliable. This factor by itself was

held in Welsh v. Wisconsin, supra, not to justify a war-

rantless home arrest—but the Supreme Court emphasized

in that case that the State of Wisconsin had given the

crime of drunken driving a minor status in classifying

the first offense as “a noncriminal, civil forfeiture offense

for which no imprisonment is possible.” Id. at 754. Said

the Court, “[T]he penalty that may attach to any partic-

ular offense seems to provide the clearest and most con-

sistent indication of the State’s interest in arresting indi-

viduals suspected of committing that offense.” Id., n.14.

By contrast with the noncriminal civil forfeiture Wis-

consin treatment of the offense, the City of Kirksville

by ordinance has made a first offense of drunken driving,

or of driving with a blood alcohol of more than .10 per-

cent by weight, punishable by up to $500 fine and three

AQ

months in jail... Welsh would not invalidate the arrest

in the present case.

A second distinction between Welsh and the present

case is that Welsh did not feature a true “hot pursuit”

situation, as the Supreme Court observed, 466 U.S. at

753, while the present case is a clear case of “hot pursuit”.

An arrest in quite similar circumstances to the present

was upheld in State v. Niedermeyer, 617 P.2d 911 (Or.

App. 1980), as against a claim that it was an illegal search

and seizure. The defendant’s suspected offense there was

aitempting to elude a police officer, described by the

court as “a class A misdemeanor and a major traffic

offense.” Id. at 913.

2. The sufficiency of the evidence of identification

of defendant.

Defendant challenges the sufficiency of the evidence

to support the conviction, arguing that the identity of

defendant was not shown, that the driver could have

been the lady instead of the defendant.

Officer Roberts, who was acquainted with defendant,

testified that he could not identify defendant as he drove

the red Camaro, but could identify “a white male” as

the driver. He recognized the defendant as he was going

into his house through the interior garage door. This

1. Under the statutes of Missouri, under which defendant

might have been charged, the penalty for first offense driving

while intoxicated is a class B misdemeanor, Sec. 577.010, RSMo

Supp. 1987. A class B misdemeanor is punishable by up to

$500 fine, Sec. 560.016, RSMo 1979, and six months in jail,

Sec. 558.011 RSMo Supp. 1987. The penalty for first offense

driving with .10 of one percent or more by weight of alcohol

in the bloodstream is a class C misdemeanor. Sec. 577.012,

RSMo Supp. 1987. A class C misdemeanor is punishable by

up to $300 fine, Sec. 560.016 RSMo 1979, and 15 days in jail,

Sec. 558.011, RSMo Supp. 1987.

Al0

was sufficient to identify the defendant as having been

the driver. If there was evidence to indicate that the

woman was the driver, that fact issue was for the trier

of fact and we are not convinced that he made a mistake

in resolving it against defendant.

The judgments of conviction on all charges are af-

firmed.

All concur.

Don W. Kennedy, C.J., Presiding

All

EXHIBIT C

MISSOURI COURT OF APPEALS

Western District

1300 Oak Street

Kansas City, Mo. 64106-2970

Peggy Stevens McGraw Area Code 816 474-5511

Clerk-Docket Attorney

October 27, 1987

IMPORTANT NOTICE

TO: ALL ATTORNEYS OF RECORD

RE: City of Kirksville, Mo vs Guffey, Gregory D.

WD+ 39094

Please be advised that Appellant’s motion for re-

hearing was OVERRULED and transfer to Supreme Court

was DENIED. See Rule 83.03.

Peggy Stevens McGraw

Clerk-Docket Attorney

cc: Howard Hickman

William David Farrar

Al2

EXHIBIT D

No. 69968

WD 39094

IN THE SUPREME COURT OF MISSOURI

September Session 1987

City of Kirksville,

Respondent,

vs. TRANSFER

Gregory D. Guffey,

Appellant.

Now at this day, on consideration of Appellant’s Ap-

plication to transfer the above entitled cause from the

Western District Court of Appeals, it is ordered that said

application be, and the same is hereby denied.

STATE OF MISSOURI—SCT.

I, THOMAS F. SIMON, Clerk of the Supreme Court

of the State of Missouri, certify that the foregoing is a

full, true and complete transcript of the judgment of said

Supreme Court, entered of record at the September Ses-

sion thereof, 1987, and on the 15th day of December 1987,

in the above entitled cause.

Given under my hand and seal of said

Court, at the City of Jefferson City,

this 15th day of December, 1987.

/s/ Thomas F. Simon

Clerk.