Mansfield Fox

Law student. Yankees fan. Massive fraggle. Just living the American dream.

Monday, June 05, 2006

Lost (Warrantless) Weekend

Since I was planning to write my SAW on this subject, I thought I should blog on this: the California Supreme Court just ruled to allow warrantless entry into the homes of DUI suspects for evidence collection purposes. (h/t: Jay at Accidental Verbosity) In Colbertian fashion, I'm going to give the Golden State Supremes a combination tip o' the hat/wag o' the finger (that is, a mixed review). [And be warned in all below that I haven't actually read the opinion, just media reports thereof. Which, as we all know, are usually only 50-75% accurate. I will update if, on reading the opinion, I think an update needs to be made.]

Tip o' the hat: the basic idea is sound. States shouldn't treat Welsh v. Wisconsin (the 1984 Supreme Court case basically saying the opposite of what the Cal Supremes just ruled) as some kind of special carve-out for drunk drivers who manage to make it home. Welsh was premised on the idea that, because drunk driving was not a felony under Wisconsin law, traditional exceptions to the warrant requirement available when the underlying crime was a felony (such as "hot pursuit") did not apply.

So, cheers to the California Supreme Court for displaying some basic common sense: California treats DUI as a serious crime; it should therefore, like any serious crime, potentially serve as the basis for exigent circumstances justifying warrantless entry and search. (Particularly since it's a crime in which there's a 100% likelihood that the accused is engaged in the destruction of evidence, simply by metabolizing the alcohol in his system.)

But, my wag o' the finger to the Cal Supremes: from the media reports, at least, this seems like a pretty lousy set of facts on which to justify such a warrantless entry and search. The police were acting on a tip from a neighbor; based on this, they went to the accused's house and found her car there. This clearly isn't "hot pursuit"; they weren't the ones following the erratically driving Thompson to her home. It seems from the facts that to have applied for a warrant would not have substantially delayed their arrival or resulted in any meaningful loss of BAC evidence above what took place anyway. So while I think the court's general principle is correct, this was a lousy case in which to announce that principle. Even DUI-based searches have to comply with the basic rules governing warrantless searches; we shouldn't go from one unreasonable carve-out (protecting drunk drivers) to another (protecting overzealous police).

UPDATE: I should say that my imagined "good" case for such a rule would look something like as follows. Police come upon the scene of drunk driver A's wreck. Following tire treads and a trail of debris and damage, they come upon A's house, where A has partially wrapped his car around a tree. They then go into A's house without a warrant and find him drunk on the floor. They then arrest and administer a DUI test. The above strikes me as a reasonable description of what the outer limit of hot pursuit would look like in the DUI context. (Hotter pursuits include actually chasing a drunk driver to his door - surely nobody thinks that once he's crossed his threshold the police must give up pursuit until they can get a warrant.)

I also wanted to mention, briefly, the perverse incentives created by the Welsh scheme. It created a circumstance in which the rational thing for a drunk driver to do, once he got into an accident, was to start driving again. Once you got home, you were effectively safe from any DUI test, since you would have metabolized much of the evidence of your intoxication by the time any police arrived with an arrest warrant. And without a test that prosecutors can point to to say "his BAC was X over the legal limit" there's virtually no chance you'll even be prosecuted, let alone convicted. The Welsh rule effectively shields drunk drivers who manage to make it home from liability, creating real incentives for the intoxicated to drive more (which, whatever your view of the wisdom of harsh drunk driving laws, is probably not what we want them to be doing). That's why I think some version of what California's trying to do is sensible.