Opposition Brief — New Jersey v. Bolte

% Bupreme Court, U.S,

EILED

OCT 1} 1889

JOSEPH F. SPANIOL, JR.

-

2)

‘

No. 89-417 on

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1989

STATE OF NEW JERSEY,

Petitioner,

V.

RICHARD J. BOLTE,

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of New Jersey

BRIEF IN OPPOSITION

FRANCIS J. HARTMAN, CHARTERED

Attorneys for Respondent

FRANCIS J. HARTMAN, ESQUIRE

Attorney of Record

CHARLES H. NUGENT, JR., ESQUIRE

300 Chester Avenue

Moorestown, New Jersey 08057

(609) 235-0200

CHARLES H. NUGENT, JR., ESQUIRE

Of counsel and on the brief a

October, 1989

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

EE GE SRPEEEITEED Scieeccnnsecenscsccccnsccesassccecssoserees

TAB GE BRUTE EEED ccccccccccccesscccccevenssesccnenccees

STATEMENT OF THE CASE ...................cccccccccccssees

REASONS FOR DENYING THE WRIT .....................

THE NEW JERSEY SUPREME COURT’S DE-

CISION BELOW WAS A WELL-REASONED

APPLICATION OF THE RELEVANT CASE-

LAW TO THE FACTS OF THIS CASE AND

ITS CONCLUSION THAT NO EXIGENT CIR-

CUMSTANCES EXISTED TO JUSTIFY THE

WARRANTLESS ENTRY OF DEFENDANT’S

HOME FOR “MINOR” OFFENSES IS COR-

RECT. THEREFORE, THIS COURT SHOULD

DENY PETITIONER STATE OF NEW JER-

SEY’S WRIT OF CERTIORARL ................00008

CRIBTUIEET | sxvescnscsenssesvenncancnnesstsccestincseseuncssnssonseess

TABLE OF AUTHORITIES

Cases Page

Boyd v. U.S. 116 U.S. 616 (1886) ...................ccc00. 15

Brower v. County of Inyo 109 S.Ct. 1378 (1989) .. 14

Chimel v. California 395 U.S. 752 (1969) ............. 11

City of Seattle v. Altschuler 766 P.2d 518 (Wash.

CR. Ra BEIU cninsiseriveesianecsasncintacuiliblimapinicwes 8

Dorman v. U.S. 485 F.2d 385 (D.C. Cir. 1970) .... 8,10,11

Gasset v. State 497 So.2d 97 (Fla. App.) rev. denied

SOD Ce te IIe atkatiectdnanienitiacintassernsness 9

Johnson v. United States 333 U.S. 10 (1948) ........ 14

McCall v. People 623 P.2d 397 (Colo. 1981) .......... 8,14

McDonald v. U.S. 335 U.S. 451 (1948) .........00.0.0... 15

Payton v. N.Y. 445 U.S. 573 (1980) .............ccccceees 1,9,10

People v. Day 519 N.E.2d 115 (ill. App. Ct.), rev.

denied, 526 N.E. 2d 834 (1988) ..................0.. 8,14

People v. Klimeck 427 N.E.2d 598 (Ill. Dist. Ct.

SAE. FIRE) saicvicinsniniccnnintsiticagadieaaliaaiaiaeaaliiaianicisadibidinn 8,14

People v. Strelow 96 Mich App. 182, 292 N.W.2d

RY COIIIeD sscicsnnirensvcieubenicnmanaeaniallpaaemnbaeiiaden 8,11,14

Silverman v. U.S. 365 U.S. 505 (1961) ................. 15

State v. Blake 468 N.E.2d 548 (Ind. App. 1984) ... 9

State v. Bolte 225 N.J. Super 335, 542 A.2d

GO6 GA. TAO. TD cisticinsnasensitiahediniatinns 3,4,6,13

State v. Bolte 115 N.J. 579, 560 A.2d 644 (1989) ..... 4,6,8

State v. Guertin 190 Conn. 440, 461 A.2d 963

COTE steinsscsecntakouhissintiniesesenuntantiamieaeataliaCidasnees 8

State v. Hert 220 Neb. 447, 370 N.W.2d 166

CIIPIII chen sincessarecnsnidadiinbansiedisidatatanaenieiibcanesonds 8

State v. Krause 163 Conn. 76, 301 A.2d 963

CIE xi cicas\sescsncensascacsdanpnennneiaeeseuiaaiaasiiaiiiads 9

State v. Peters 695 S.W.2d 140 (Mo. App. 1985) .. 8

State v. Ramirez __ Wash. App. —_ , 746 P.2d 344

GRIPED cinccisxerssunsassreeenaentinatilahanhnentannaaiaalinaaicss ' 8

>a

iii

Table of Authorities Continued

Page

State v. Storvick 423 N.W.2d 398 (Minn. Ct. App.

Aide nica nl dll hint eee baimanahianbteensonsnenes 8,14

State v. Wren 115 Idaho 618, 768 P.2d 1351

SEN a ESL SETS Se Re 13

U.S. v. Jeffers 342 U.S. 48 (1951) ..............ccccceceee 15

U.S. v. Santana 427 U.S. 38 (1976) ......... ee 1,4,5,9

U.S. v. U.S. District Court 407 U.S. 297 (1972) .. 10

Warden v. Hayden 387 U.S. 294 (1967) ............... 1,4,5,9

Welsh v. Wisconsin 466 U.S. 740 (1984) ....... 1,5,6,9,10,13

Statutes Cited 2

I... ccncocssscssncensnsensisosens 13

I 12

ee sc sccssccnecctensecsstcnsscacecens 12

EEE 12,13

I nn. sc scccccannncsescsscnsencscccsens 12

N.J. Stat. Ann. 39:4-96 ............ RE Ae ON RO 12

NI ooo. .ssssassecassconconssesanscsnsnnect 12

Court Rules Cited

I . scepusunscenesegusomaseuse 7

STATEMENT OF THE CASE

The New Jersey Supreme Court’s decision in the

case sub judice is a well-reasoned application of the

relevant case law to the facts of this case. The court’s

conclusion that no exigent circumstances existed, in-

dependent of the hot pursuit, to justify the warrant-

less entry of respondent’s home for minor offenses is

consistent with the rationale of Welsh v. W+sconsin

466 U.S. 740 (1984), Warden v. Hayden 387 U.S. 294

(1967), U.S. v. Santana 427 U.S. 38 (1976) and Payton

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

The facts of this case are undisputed and were-

generally stipulated to in the trial court and before

the Appellate Division (Pet. App. A at pp. 2a-3a, &

’ Pet. App. D at pp. 23a-24a).

On April 6, 1987, at 1:40 a.m., Moorestown Police

Officer William Liss began to follow an automobile

after he noticed the autornobile swerving on and off

the road. When the automobile signaled a turn, the

officer activated his lights and siren. Officer Liss ob-

served the driver look into his mirror, apparently ig-

noring the presence of the patrol vehicle and continue

on. The automobile made four loops of the neighbor-

hood increasing its speed as it proceeded. The speed

ranged from 20 m.p.h. to approximately 48 m.p.h.

According to Liss, as the speed increased the oper-

ation of the vehicle became more erratic.

The automobile finally stopped in the driveway of

a private residence. The garage door had been opened

automatically. Officer Liss followed the car, and ex-

ited his patrol car in the driveway. He entered the

garage just as the automatic garage door started to

close and respondent exited his vehicle. Respondent

entered his house. Officer Liss asked the respondent

to open the door, but respondent continued on his

way. Liss followed the respondent into the house and

advised him that he was under arrest. Respondent

continued to ignore the officer’s request and contin-

ued to walk through the house. He then ran up the

stairs, entered a bedroom and attempted to close the

door. Patrolman Liss was able to keep the door from

closing and continued to advise respondent that he

was under arrest. Respondent began to talk to some-

one in the bedroom. At this point, Liss left the bed-

room door which was then closed and locked. He then

let Patrolman Fullerton and Sgt. Pugh of the Moores-

town Police Department, to whom he had radioed for

back-up, into the residence. When Liss returned to

the bedroom the door had been unlocked and he was

greeted by respondent’s wife. The respondent then

came out of the bathroom, was advised he was under

arrest, and was handcuffed and taken to the station

for processing. He was subsequently charged with nu-

merous motor vehicle and disorderly persons viola-

tions.

Respondent filed a suppression motion in the Su-

perior court of New Jersey, Law Division, seeking to

invalidate the warrantless in-home arrest. The motion

to suppress was denied by the tria! court (Pet. App.

A 15a-17a).

An interlocutory appeal of the denial of the motion

to suppress was filed with the Superier Court of New

Jersey, Appellate Division. The appellate division

granted leave to appeal, reversed the trial court, and

determined that Officer Liss’ warrantless intrusion

into respondent’s home failed to meet the Fourth

Amendment standard of reasonableness and that the

officer violated the sanctity of defendant’s home with-

out substantial police need. State v. Bolte 225 N.J.

Super 335, 542 A.2d 494 (App. Div. 1988). (Pet. App.

B at pp. 22a).

The State of New Jersey then filed an interlocutory

appeal with the New Jersey Supreme Court. The court

granted leave to appeal, 113 N.J. 661, 552 A.2d 181

(1988) and subsequently affirmed the judgment of the

appellate division, holding that the offenses

respondent committed, both individually and in the

aggregate, were within the category of ‘‘minor”’ of-

fenses held by the Welsh court to be insufficient to

establish exigent circumstances justifying a warrant-

less home entry.

The State of New Jersey now petitions this Court

for review of the judgment of the Supreme Court of

New Jersey.

/

REASONS FOR DENYING THE WRIT

THE NEW JERSEY SUPREME COURT’S DECISION

BELOW WAS A WELL-REASONED APPLICATION

OF THE RELEVANT CASE-LAW TO THE FACTS OF

THIS CASE AND ITS CONCLUSION THAT NO EXI-

GENT CIRCUMSTANCES EXISTED TO JUSTIFY THE

WARRANTLESS ENTRY OF RESPONDENT’S HOME

FOR “MINOR” OFFENSES IS CORRECT. THERE-

FORE, THIS COURT SHOULD DENY PETITIONER

STATE OF NEW JERSEY’S WRIT OF CERTIORARI

Petitioner, State of New Jersey, seeks this Court’s

review of unanimous decisions by both the New Jer-

sey Supreme Court in State v. Bolte 115 N.J. 579,

560 A.2d 644 (1989), and the Appellate Division of

the Superior Court. State v. Bolte 225 N.J. Super.

335, 542 A.2d 494 (App. Div. 1988).? Petitioner seeks

review of these decisions by suggesting, albeit incor-

rectly, that a conflict in legal authority exists per-

taining to whether or not a suspect who commits

“minor” offenses in a policeman’s presence should be

allowed to defeat his arrest by escaping into his res-

idence. Petitioner alludes to Warden v. Hayden 387

U.S. 294 (1967) and U.S. vs. Santana 427 U.S. 38

(1976) in support of this alleged conflict. Petitioner

also asks this Court to reject the logical and con-

sistent evolution of decisions respecting the Fourth

Amendment and its protections and to adopt a new

analysis based on flawed reasoning regarding war-

rantless home arrests. Contrary to petitioner’s asser-

tion, there is in actuality, only an illusion of conflict

1 Justice Stein writing for the court, and joined by Justices

Clifford, Handler, Pollock, O’Hearn & Garibaldi. Chief Justice

Wilentz did not participate.

2 Judges Long and Furman.

conjured by the State to attract this Court’s attention

and should therefore be denied.

Two United States Supreme Court cases establish

“hot pursuit” as a limited exception to the warrant

requirement of the Fourth Amendment, Warden v.

Hayden, supra., and U.S. v. Santana supra. However,

neither of these decisions establish hot pursuit as a

broad exception unto itself, but rather as a very lim-

ited reason for the police to enter a house to try to

prevent something serious and undesirable from hap-

pening, e.g., flight by a defendant, injury to others,

or destruction of evidence.

In Warden, it was found significant that ‘‘the police

were informed an armed robbery had taken place and

that the suspect had entered (the residence) less than

five minutes before they reached it.” 387 U.S. at 298.

Therefore, both flight and injury to the police or in-

nocent members of the public were strong possibilities

even after defendant had entered his home.

In Santana, the police officers’ warrantless search

of a private dwelling was justified not only by the

“hot pursuit’? of a known distributor of heroin, but

also by the potential for destruction of evidence (pack-

ets of heroin and marked bills) that could have ob-

viously followed had the police waited for a warrant

to arrive before entering defendant’s home.

Despite petitioner’s claim to the contrary, the pres-

ent case is more factually aligned with Welsh v. Wis-

consin 466 U.S. 740 (1984) and is readily

distinguishable from the above cases for a number of

reasons. While “hot pursuit’’ certainly had been es-

tablished when Patrolman Liss activated his overhead

lights and began to pursue respondent, there was no

other exigency combined with the hot pursuit to jus-

tify Liss entering the house. In other words, there

was no possibility of flight? nor was there a danger

to the public or the officer once Bolte was in his

home.‘

It is also notable that the mere possibility that Bolte

had an intoxicating amount of liquor in his system

which would slowly dissipate over time does not es-

tablish an “‘imminent destruction of evidence’’ exi-

gency sufficient to justify warrantless entry into a

house for three very basic reasons: 1) the only offen-

ses for which Liss had probable cause to arrest at

the time of the entry into the house and as conceded

by the State in their argument before the Appellate

Division, were the non-drunk-driving offenses of réck-

less driving, eluding, etc.; 2) Welsh firmly establishes

that except in the instance of very serious crimes ‘‘a

warrantless home arrest cannot be upheld simply be-

cause evidence of petitioner’s blood alcohol might have

dissipated while the police obtained a warrant,” 466

U.S at 54; and finally 3) the trial court correctly noted

there were ‘“‘at least five judges that live within 2

minutes of that... [residence]’’ so that a warrant

’ Patrolman Liss was at the respondent’s residence and other

officers were “‘by then at or near the scene.” State v. Bolte

225 N.J. Super. 335, 341 (App. Div. 1988) and see Pet. App.

D at pp.27a.

‘ Significantly, the New Jersey Supreme Court in Bolte found

that ‘they may claim no similar danger to either the police or

the public, particularly after Bolte entered his home. There was

no indication at that point that Bolte posed a danger to anyone

and nothing in the records suggests that Bolte was prepared to

leave the house to resume his erratic driving behavior.’’ State

v. Bolte, 115 N.J. at 593, Pet. App. F at pp. 46a.

could have been quickly obtained either in person or

by telephone. (Pet. App. A at pp. 9a.)

Petitioner suggests that Officer Liss was without

timely recourse in the absence of an ability to proceed

into the respondent’s residence without a warrant,

and therefore hot pursuit, safety considerations and

dissipation of evidence justify the officer’s actions.

However problematic this appears upon first glance,

the legal and constitutional remedy was right at the

officer’s fingertips, if he wished to utilize it. New

Jersey, in recognizing that exigent circumstances

should rarely prevail over the need for a written war-

rant, enacted in the Rules Governing the Courts of

the State of New Jersey, and in the Rules Governing

Criminal Practice, Court Rule 3:5-3 which provides in

part (b) that

A Superior Court Judge may issue a search

warrant upon sworn oral testimony of an ap-

plicant who is not physically present. Such

sworn oral testimony may be communicated

to the judge by telephone, radio or other

means of electronic surveillance.... A war-

rant may issue if the judge is satisfied that

exigent circumstances exist sufficient to ex-

cuse the failure to obtain a written warrant

and that sufficient grounds for granting the

application have .been shown. (Emphasis

added.).

Officer Liss was well aware of that alternative, and

further aware that there is an emergent judge on call

to respond to this type of situation 24 hours a day

in Burlington County. Had he taken the several min-

utes needed to apply for a search warrant by oral

application, his actions would have been cloaked in a

presumption of validity, rather than unreasonableness.

Indeed, that would have been the most prudent ac-

tion, considering the valuable and sacred rights af-

forded by the Fourth Amendment. As the New Jersey

Supreme Court noted in Bolte, ‘‘....less intrusive

measures should be used whenever possible... .’’ 115

N.J. 598.

Petitioner urges that the utilization of a major/mi-

nor offense distinction to govern the legitimacy of

warrantless in-home arrests following hot pursuit is

both unwise and unworkable. In support of this claim,

petitioner cites a number of decisions from other state

jurisdictions which have not acknowledged the major/

minor offense distinction. While respondent disputes

- that claim, suffice it to say that each and every one

of those decisions are distinguishable on their facts

from the case sub judice. Numerous jurisdictions, have

in fact, followed the major/minor offense distinction.

See State v. Ramirez —— Wash. App. —_, 746 P.2d

344(1987); State v. Hert 220 Neb. 447, 370 N.W. 2d

166 (1985); State v. Peters 695 S.W. 2d 140 (Mo. App.

1985); People v. Strelow 96 Mich. App. 182 (1980);

Dorman v. U.S. 435 F.2d 385 (D.C. Cir. 1970); People

v. Klimeck, 427 N.E. 2d 598 (Ill. Dist. Ct. App. 1981);

State v. Storvick, 423 N.W. 2d 398 (Minn. Ct. App.

1988); People v. Day 519 N.E. 2d 115 (Ill. App. Ct.),

rev. denied 526 N.E. 2d 834 (1988); McCall v. People

623 P.2d 397 (Colo., 1981); City of Seattle v. Altschu-

ler 766 P.2d 518 (Wash. Ct. App. 1989) (the mere

fact that defendant did not stop his car, without more,

does not satisfy the exigent circumstance requirement

that would allow government agents to invade the

sanctity of the home. Id. at 520.) State v. Guertin

CR et at OTL Ce LIE ONAL IIE GI Eh AMM Fes Oe SS

(nee Pin. sien

190 Conn. 440, 461 A.2d. 968, (1983); State v. Krause

163 Conn. 76, 301 A.2d 324 (1971).5

By requesting this Court to abandon the major/

minor offense distinction, petitioner would have this

Court reverse a long line of decisions which have

carefully evolved over time. Petitioner seeks this

Court to disregard the mandates of Payton v. New

York 445 U.S. 573 (1980)* Warden v. Hayden supra.,

U.S. v. Santana supra., and Welsh v. Wisconsin su-

pra., when in fact these cases carefully delineate the

parameters as to when warrantless searches may be

made.

The reasoning of Welsh is compelling. Before gov-

ernment agents may invade the sanctity of the home,

the government must demonstrate exigent circum-

5 Petitioner quotes at length from State v. Blake 468 N.E.2nd

548 (Ind. App. 1984) and Gasset v. State 497 So.2d 97 (Fla.

App.) rev. denied 500 So.2d 544 (1986) in support of the trial

judge’s theory in denying the motion to suppress. The fatal flaw

with this theory is that the trial judge has been reversed in

unanimous decisions by both the Appellate Division and the New

Jersey Supreme Court. Further, Gassei, while factually similar

to the instant matter, is completely inapplicable because of its

‘‘fatal’’ mistake of relving solely on the decision in Blake, which

in turn refused to heed the Welsh Court’s instruction that the

“single most important factor” was the seriousness of the un-

derlying offense. Blake and Gasset have chosen to ignore the

constitutionally-based holding in Welsh and instead, rely on the

dissent, i.e., what they wished the law were instead of what it

really is. Such flagrant disregard of United States Supreme Court

decisions should not now serve as the foundation upon which

new law is built.

6 The Fourth Amendment prohibits the police from making a

warrantless, non-consentual entry into a suspects home in order

to make a routine, non-exigent felony arrest.

10

stances that overcome the presumption of unreason-

ableness that attaches to all warrantless home entries.

An important factor to be considered when deter-

mining whether any exigency exists is the gravity of

the underlying offense for which the arrest is being

made. When the government’s interest is only to ar-

rest for a minor offense, the presumption of unrea-

sonableness is difficult to rebut.... 466 U.S. at 750.

Even Justice White’s dissent in Welsh ackowledged

that ‘‘the gravity of the underlying offense is, I con-

cede, a factor to be considered..... ” Td. at 759.7

It is clear that ‘‘physical entry of the home is the

chief evil against which the wording of the Fourth

Amendment is directed,’”’ U.S. v. U.S. District Court

407 U.S. 297 (1972), and that exceptions to the war-

rant requirement are “few in number and carefully

delineated,” U.S.D.C. at 318.

While petitioner seeks this Court to modify or aban-

don the major/minor distinction, one court, in Dorman

v. U.S. 435 F.2d 385, 392-393 (D.C. Cir. 1970) noted

that there are seven major factors which a court

should consider in evaluating a warrantless arrest in

a home: 1)if a grave offense (i.e. serious felony) is

involved; 2) if the suspect is armed; 3) whether there

is a clear showing of probable cause (established be-

fore entry) that the suspect committed the crime; 4) if

there is a strong reason to believe that the suspect

is in the premises; 5) the likelihood of escape; 6) the

likelihood that entry will be peaceable; and 7) whether

the entry is made at night. Of these factors, only #4

“7 As mentioned in Welsh, 466 U.S. at 750 fn. 12, “even the

dissentors in Payton, .... recognized the importance of the fe-

lony limitation on such arrests.”

4 prt, A ali Aa tay Toe #4 inhi jet d

debris

1]

favors a warrantless entry in this case, and of the

seven factors #4 was clearly the easiest to satisfy. It

therefore seems impossible to justify sufficiently, Liss’

entry into respondent’s home.

The Court in Dorman appeared to be adopting a

totality of the circumstances test, a position now

urged by the petitioner. However, even if this Court

were to adopt such a test based on Dorman or similar

factors, the New Jersey Supreme Court’s decision

would still be the same, i.e., the factors clearly weigh

in favor of requiring the officers to obtain a written

warrant based on the hot pursuit of one who had

committed only minor offenses.

In Chimel v. California, 395 U.S. 752, 761 (1969)

the Supreme Court stated that “‘the presence of a

search warrant serves a high function. Absent some

grave emergency, the Fourth Amendment has inter-

posed a magistrate between the citizen and the po-

lice.” Again, the clear distinction between major and

minor offenses is a theme that carries throughout

Fourth Amendment analysis. Officer Liss’ actions

were not in response to a grave emergency, but to

a set of circumstances which were clearly under con-

trol once at the respondent’s home.

As the court in People v. Strelow, 96 Mich. App.

182, 190-191, 292 N.W. 2d 517, 521 (1980) observed

the hot pursuit doctrine excuses strict ad-

herence to statutory notice and demand man-

dates in order to prevent police from being

unduly burdened in their efforts to arrest

criminals guilty of serious offenses. Prevent-

ing the escape of a fleeing felon may nec-

essarily prevail over the interests the statute

12

was designed to protect. Employing the same

balancing test, the less serious nature of a

misdemeanor offense militates against extend-

ing the hot pursuit exception to justify un-

announced entry into a private residence to

make such an arrest. Important interests such

as privacy expectations and prevention of un-

necessary violence must, in this instance, pre-

vail. Jd. (Emphasis added)

While petitioner attempts on one hand to convince

the Court of the unworkability of the major/minor

offense distinction, they nevertheless attempt on the

other hand to show that the offenses committed by

respondent were indeed serious. They allege that

respondent committed the following offenses and was

exposed to the following custodial exposures: eluding

a police officer (N.J.S.A. 2C:29-2b) - 6 months; reck-

less driving (N.J.S.A. 39:4-96) - 60 days; driving while

intoxicated (N.J.S.A. 39:4-50) - 30 days; speeding

(N.J.S.A. 39:4-99) - 15 days; failure to maintain a

single lane (N.J.S.A. 39:4-88b) - 15 days; disorderly

conduct (N.J.S.A. 2C:33-2a) - 30 days.

What petitioner fails to mention is that the most

serious offenses in terms of their custodial exposures

are unaffected by any suppression ruling made by this

Court or any state court. Clearly, the eluding charge

(N.J.S.A. 2C:29-2b) carrying a potential of six (6)

months incarceration, as well as the reckless driving

charge (N.J.S.A. 39:4-96) carrying a potential for 60

days incarceration, can still be prosecuted based on

the observations of Office Liss prior to his warrant-

less entry of respondent’s home. Similarly, the same

result can be reached with the charges of speeding,

failure to maintain a single lane, and arguably the

Ahad eek ET al Wie evened” aot

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13

disorderly conduct charge. Further, none of the of-

fenses cited to by petitioner are crimes under New

Jersey law and are at most, disorderly persons or

traffic offenses. N.J.S.A. 2C:1-4.

Petitioner attempts to equate drunk driving with

being a “‘serious” offense thus elevating respondent’s

conduct to the class of offenses which may bypass

the Fourth Amendment warrant requirement.

Petitioner ignores the fact that a drunk driving charge

is a non-criminal offense and is contained in Title 39

of the New Jersey Statutes dealing with traffic of-

fenses. Although a convicted defendant may be in-

carcerated for 30 days for a first offense, the penalties

are more similar to those in Welsh. A person con-

victed in New Jersey as a first time offender for DWI

under N.J.S.A. 39:4-50, can be sentenced to, at most,

a $400.00 fine, 1 year revocation of driving privileges

and a 30 day incarceration.

There is no doubt that drunk driving is the target

of national scorn. But the public’s opinion of the grav-

ity of certain illegal behavior does not mean that the

offense is automatically ‘‘serious’’ for purposes of

Fourth Amendment analysis.

Petitioner cites State v. Wren, 115 Idaho 618, 768

P.2d 1351 (1989) for the proposition that ‘‘an arrest

occurs when it is communicated, not when the officer

decides to take such action,” (see petitioner’s brief,

p.12), and suggests that respondent herein was under

lawful arrest. Interestingly, the Wren decision, cited

by petitioner, cites State v. Bolte, 542 A.2d 494 (App.

Div. 1988) in support of their holding where they,

‘join those courts which held that a warrantless ar-

rest in the home must be justified upon an exigent

14

circumstance in addition to the pursuit.®”’ Petitioner's

reasoning is defective and ignores the dictates of

Brower v. County of Inyo 109 S.Ct. 1378, (1989) which

proclaims that

It is clear...., that a Fourth Amendment

seizure does not occur whenever there is a

governmentally caused termination of an in-

dividual’s freedom of movement. . . . nor even

when there is governmentally caused and

governmentally desired termination of an in-

dividual’s freedom of movement (the fleeing

felon), but only when there is a governmental

termination of movement through means in-

tentionally applied. Jd. at 1381.

Merely trying to arrest someone is not itself an ar-

rest. An individual such as respondent would have

nothing to gain by fleeing if the arresting officer

would have only obtained a warrant before entering

defendant’s house. Contrary to petitioner’s argument,

an affirmance of the New Jersey Supreme Court’s

decision would not encourage flight. It would merely

require the police to respect the Fourth Amendment.

In Johnson v. U.S. 333 U.S. 10 (1948), the Supreme

Court found no sufficient reasons for dispensing with

a warrant where there was no risk of imminent harm

to any person, no evidence was being destroyed or

® Also citing, Jeffcoat v. Hinson, N. 87-1733, unpublished de-

cision (4th Cir. 1988); McCall v. People 623 P. 2d 397 (Colo.

1981); People v. Day 519 N.E. 2d 115 (Ill. App. Ct. 1981); People

v. Klimeck 427 N.E. 2d 598 (Ill. Dist. Ct. App. 1981); People v.

Strelow 292 N.W. 2d 517 (Mich. Ct. App. 1980); State v. Storvick

423 N.W. 2d 398 (Minn. Ct. App. 1988).

ane we

as nh tals eee .

WO aod Nii sot Be

15

likely to be destroyed, and the suspect was not likely

to flee while the police obtained a warrant.

In McDonald v. U.S. 335 U.S. 451 (1948) the

Supreme Court made a similar determination, ex-

plaining that inconvenience to the police, occasioned

by delay in obtaining a warrant, was not an adequate

reason to make a warrantless entry. —

In’ U.S v. Jeffers 342 U.S. 48 (1951), the Supreme

Court again invalidated a warrantless entry noting

that ‘‘there was no question of violence, no moveable

vehicle (object) was involved, nor was there an arrest

or imminent destruction, removal, or concealment of

the property intended to be seized.”’ Jd. at 52.

As the Supreme Court declared in Boyd v. U.S. 116

U.S. 616, 685 (1886) and reiterated in Silverman v.

U.S. 365 U.S. 505, 81 S. Ct. 679 (1961), “It may be

that it [an illegal search/seizure] is the obnoxious thing

in its mildest and least repulsive form; but illegitimate

and unconstitutional practices get their first footing

in that way, namely, by silent approaches and slight

deviations from legal modes of procedure.” Of the

two competing evils sought to be avoided, clearly, the

public interest in protecting the Fourth Amendment

substantially outweighs the State’s interest in making

warrantless arrests for minor offenses inside a per-

sons residence.

CONCLUSION

The New Jersey Supreme Court’s decision repre-

sents a well-reasoned application of the relevant case

law to the facts of this case. Their holding was prem-

ised on the sound conclusion that “hot pursuit alone

is insufficient justification for the warrantless arrest

16

in this case”’ (Pet. App. F at pp. 45a). It is consistent

with prior United States Supreme Court decisions re-

garding this issue, and after a logica! analysis, fails

to find any of the exigent circumstances needed to

circumvent the Fourth Amendment, namely, the fail-

ure of the State to prove a danger to the officers or

the public, the possibility of destruction of evidence,

or the danger of flight. ‘Indeed, the New Jersey

Supreme Court determined that the offenses

respondent was charged, with were “minor” under

New Jersey law. United States Supreme Court prec-

edent has already clearly been established and pro-

vides more than ample guidance to lower courts in

addressing this issue. Further, it appears that the

United States Supreme Court, in so clearly defining

the boundaries of warrantless in-home arrests, has

deferred to individual states to decide this issue based

on state law. Therefore, the petitioner’s writ should

be denied.

Respectfully submitted,

FRANCIS J. HARTMAN, CHARTERED

Attorneys for Respondent

FRANCIS J. HARTMAN, ESQUIRE

Attorney of Record

CHARLES H. NUGENT, JR., ESQUIRE

300 Chester Avenue

Moorestown, New Jersey 08057

(609) 235-0200

CHARLES H. NUGENT, JR., ESQUIRE

Of counsel and on the brief

October, 1989