SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

Where it appears that confederates of a person arrested for selling
narcotics will learn of the arrest and destroy or secret contraband still in
the house, it is lawful to secure the house pending the obtaining of a
search warrant. (Ferdin v. Superior Court (1974) 36 Cal.App.3 rd 774,
781; People v. Freeny (1974) 37 Cal.App.3 rd 20.)
With “probable cause” to believe that contraband is contained in a
particular residence, and a “reasonable belief” that if the house is not
immediately secured the evidence will be destroyed, officers may enter to
secure the house pending the obtaining of a search warrant or a consent to
do a complete search. (United States v. Alaimalo (9 th Cir. 2002) 313 F.3 rd
1188.)
Entering a house without consent to take a suspected DUI driver into
custody and to remove him from the house for identification and arrest by
a private citizen who saw defendant’s driving, and to preserve evidence of
his blood/alcohol level, has been held to be legal. (People v. Thompson
(2006) 38 Cal.4 th 811.)
Note: The Court differentiated on its facts Welsh v Wisconsin
(1984) 466 U.S. 740 [80 L.Ed.2 nd 732], where it was held that a
first time DUI, being no more than a civil offense with a $200 fine
under Wisconsin law, was not aggravated enough to allow for a
warrantless entry into a residence to arrest the perpetrator. The cut
off between a minor and a serious offense seems to be whether or
not the offense is one for which incarceration is a potential
punishment. (People v. Thompson, supra, at pp. 821-824 , citing
Illinois v. McArthur (2001) 531 U.S. 326, 336, 337 [148 L.Ed.2 nd
838].)
But the Ninth Circuit Court of Appeal, arguing the continuing
validity of, Welsh, has held that California’s interpretation under
Thompson is wrong, and that a warrantless entry into a home to
arrest a misdemeanor driving–while-under-the-influence suspect is
a Fourth Amendment violation. (Hopkins v. Bonvicino (9 th Cir.
2009) 573 F.3 rd 752, 768-769; finding that warrantless entries into
residences in misdemeanor cases “will seldom, if ever, justify a
warrantless entry into the home.”)
Officers entering a home on a loud music complaint upheld despite
the Supreme Court’s holding in Welsh, ruling that the situation
was more akin to a “community caretaking” issue than the one
where it was necessary to find an exigent circumstance. (United
States v. Rohrig (6 th Cir. 1996) 98 F.3 rd 1506.)
© 2012 Robert C. Phillips. All rights reserved
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