People v. Wear ( 2008 )

Docket No. 104181.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
ROBERT W. WEAR, Appellant.
Opinion filed July 24, 2008.
JUSTICE FITZGERALD delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Garman and Karmeier
concurred in the judgment and opinion.
Justice Burke specially concurred, with opinion, joined by Justices
Freeman and Kilbride.
OPINION
The central issue in this case is whether an officer’s warrantless
arrest of Robert W. Wear inside of a residence was in violation of the
fourth amendment such that the statutory summary suspension of his
driving privileges should be rescinded (625 ILCS 5/2–118.1(b) (West
2006)). The circuit court of Greene County ultimately found “no
reasonable grounds” for the arrest. The appellate court reversed,
finding that the officer had probable cause to arrest Wear and the
warrant requirement for entry into the residence was excused under
the doctrine of “hot pursuit.” 371 Ill. App. 3d 517. This court allowed
Wear’s petition for leave to appeal (210 Ill. 2d R. 315) and we affirm.
BACKGROUND
On January 2, 2006, Wear was charged with driving a vehicle
under the influence of alcohol (DUI) (625 ILCS 5/11–501(a)(2) (West
2006)) in Greene County case number 06–DT–1 and a failure to signal
when required in Greene County case number 06–TR–9. A statutory
summary suspension of Wear’s driver’s license was entered due to his
failure to submit to a chemical breath test. The record reveals a traffic
ticket alleging that Wear committed the DUI in the city of White Hall
on January 2, 2006, at 12:52 a.m. On that date, Officer Christopher
Dawdy served upon Wear a form notice of the summary suspension
of his commercial driver’s license for refusing to submit to a chemical
breath test at 2:12 a.m. Because Wear was not a first offender, his
commercial driver’s license privileges would be suspended for three
years. In the blank lines on this notice of suspension form, Officer
Dawdy wrote in ink, “Driver was very passive when he exited the
vehicle he [sic] had a strong odor of alcoholic beverage coming from
his breath. He stumble [sic] outside the vehicle and said he did not
want to do field sobrity [sic] because he could not pass[.]”
On January 20, 2006, Wear filed a petition to rescind the summary
suspension. On January 24, 2006, Wear filed a motion to suppress
evidence and quash his arrest in the DUI case. On February 10 and
February 17, 2006, the trial court held an evidentiary hearing on each
motion simultaneously. The parties were at odds over the facts.
Wear called several witnesses: Officer Dawdy, three persons who
had been with him at a tavern prior to the arrest, and his girlfriend,
Patricia Foiles, in whose house the arrest occurred. Wear also
testified.
Officer Dawdy testified that at approximately 12:52 a.m. on
January 2, 2006, he was on patrol at the western edge of White Hall
traveling westbound on West Lincoln Street, although he stated on
cross-examination that he was traveling eastbound. According to
photographic exhibits, Lincoln Street is a roadway without lane
markings and a small discernable shoulder. It is bisected into West and
East Lincoln by Main Street. Officer Dawdy observed a white Cadillac
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“traveling pretty fast” driving on “West Lincoln going east.” He
testified that the speed limit at that point was 30 miles per hour, and
he “would have said they would have been going at least 40” but he
did not have a radar gun. Officer Dawdy testified the Cadillac
“swerved over towards me,” whereupon Officer Dawdy performed an
evasive maneuver and “got off the side and went to the nearest road
to turn around.”
Officer Dawdy testified that he drove on to Bruce Street and
reversed direction, now traveling eastbound. At this point, he
observed the Cadillac “swaying back and forth.” He traveled for six
or seven blocks before he was within five car lengths of the Cadillac.
At this moment, the Cadillac was crossing Main Street (where West
Lincoln turned into East Lincoln), which is approximately a half mile
east of Bruce Street. By the time the Cadillac crossed over the
railroad tracks, approximately another quarter mile beyond Main
Street, Officer Dawdy testified that he was “right behind it,” less than
a car’s length away. According to the transcript, he stated on direct
that the car was still swerving. On cross-examination, when asked if
he observed anything alarming, he stated, “not on E[ast] Lincoln.”
Officer Dawdy testified that the Cadillac did not commit any traffic
violations or hit any parked cars while on Lincoln Street.
The Cadillac thereafter reached the T-intersection of Bates Street
and Lincoln Street, which is two blocks past the railroad tracks, on the
eastern edge of White Hall, approximately one mile after the initial
encounter. Bates is a side street without lane markings. Officer Dawdy
observed the Cadillac make a “wide” right onto Bates Street without
a turn signal. He admitted that Bates Street is a narrow street and that
there were no other cars present at that time of night. He also testified
to photographic exhibits that showed vehicles driving in the middle of,
or even on the wrong side of, Bates Street.
Officer Dawdy testified that he initiated the traffic stop as soon as
the Cadillac turned onto Bates. Officer Dawdy engaged his rotator
lights and his spotlights. The Cadillac, although driving at a normal
rate of speed, did not stop for five or six blocks, approximately a half
mile from Lincoln. The Cadillac was swerving and listing to the left
while Dawdy was following it in a normal fashion. Dawdy admitted
that there were manholes and dips in the road, and that “[p]eople
would probably avoid hittin’ ’em.” Officer Dawdy testified that he
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observed that the Cadillac “rolled through one stop sign,” at the point
that Bates Street is renamed Israel Street. The Cadillac came to a
complete stop at the next stop sign at East Carlinville Street. The car
turned left. Officer Dawdy does not remember if the Cadillac used its
turn signal. The Cadillac went a short distance and pulled into a
residence on the south side of East Carlinville Street, which was a
right-hand turn for the Cadillac. The Cadillac parked straight in the
driveway and did not strike the house, the mailbox, or the van which
was also in the driveway.
Officer Dawdy pulled into the driveway behind the car with all of
his police vehicle’s lights illuminated. The driver, whom Officer
Dawdy later identified as Wear, exited the Cadillac. Officer Dawdy
testified, “I exited my vehicle and told the driver to get back in his
vehicle; and he just kept walking.” He added, “He was crossing his
feet and kind of swayin’ and stumblin’, but I *** kept repeating
myself to tell him to get back in the vehicle and he just ignored me like
I wasn’t even there.” Wear did not fall or have to catch himself, nor
was he running. Wear “went up the sidewalk to the door of the
house,” which is approximately 15 feet from where Wear would have
exited his vehicle. A photographic exhibit depicts the scene as a short
gravel driveway, a cracked sidewalk, a step up onto the porch, a
porch filled with numerous items of disorganized furniture, and a
door.
The events at the doorway were minutely examined by the parties
before the trial court. Officer Dawdy testified that a female, identified
as Wear’s girlfriend, Patricia Foiles, opened the door. Wear “was in
the doorway at that point when she opened the door and wanted to
know what was going on.” Wear did not speak to Officer Dawdy
“when he was walking up the sidewalk. I didn’t speak with him, or he
didn’t speak to me until he got inside the doorway and he told me that
he made it home.” Foiles asked what was happening and Officer
Dawdy “told her that I had been following him down Bates Street
with my lights on, and he wouldn’t pull over.” It is unclear from the
transcript whether Wear went into the house before or after Dawdy
spoke with Foiles. He did not tell her that he wanted to speak with
Wear but instead, Officer Dawdy testified, “the whole time I was
asking him for his identification ’cause I didn’t know exactly who it
was.” When asked the distance between himself and Wear at that
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point, Officer Dawdy answered, “[p]robably less than one foot
because I was right there. I didn’t know exactly why he wasn’t going
along with what I was telling him. I was telling him to stop, get back.
So, I was right there, so I could manage him if something had
happened there *** [f]or my safety.” Officer Dawdy related that he
said something like “ ‘stop, get back in the car,’ *** close to five
times. I just kept repeating it, telling him to get back there” and Wear
“never even acknowledged that I was there when he was walking.” At
the doorway, “He told me that he made it home and that’s the first
time he stated that–he did state that several times[,] too, that he had
made it home.” At this point, Officer Dawdy testified, he could smell
alcohol on Wear’s breath. On redirect, Officer Dawdy admitted that
he had not written in his report that Wear was staggering or swaying.
Officer Dawdy followed Wear inside, continuing to ask Wear for
his identification. Officer Dawdy ordered Wear to exit the house so he
could perform a field sobriety test on him. At this time, Officer Dawdy
could smell a strong alcoholic odor about Wear. Officer Dawdy also
asked Wear where he was coming from and whether he had been
drinking; Wear responded that he had been drinking at the Hillview
Tavern. Wear refused to give identification or blow into a portable
breath-testing device, although Dawdy asked twice. Wear told him
that he did not want to do field sobriety tests because he “did not feel
anybody could pass it.” Officer Dawdy then continued to ask for his
identification and, “He still wouldn’t give it to me, so I told him I was
placing him under arrest.” Officer Dawdy attempted to grab Wear’s
arm, but Wear pulled it away. Officer Dawdy then handcuffed Wear
and led him outside and placed him in the squad car. Wear refused to
blow into the portable breath-testing device.
Officer Dawdy testified that he had been inside several minutes
before he formed the intent to arrest Wear. However, as he stated,
“when I went inside, I had a pretty good suspicion that he was drunk.”
Wear testified that he is a 57-year-old Hillview resident. He is a
farmer who also possesses a commercial driver’s license for off-season
work. He testified that on January 1, 2006, at approximately 8:30 p.m.
he visited the Hillview tavern to play pool. Wear testified that he
drank three 12-ounce cans of Keystone Light, a beer he normally
consumed. He testified that he remained sober, and shot pool
according to his normal skill. He left the tavern at 11:30 or 11:45 p.m.
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Several witnesses corroborated Wear’s testimony. The bartender,
Bonnie Hardwick, corroborated Wear’s testimony concerning Wear’s
alcohol intake as to that evening and his normal habits. Roger Cox and
James Buchanan, patrons at the tavern that night, stated that they saw
Wear drink one or two beers before and during their matches at the
pool table, but could not testify to the exact number of beverages that
he consumed during the entire evening. These witnesses did not feel
that Wear was intoxicated that night when he left. Their testimony
consisted of several signs of sobriety, notably as to his speech (that he
was not unusually loquacious or slurring his words) and his actions
(he was playing pool skillfully, was not stumbling, swaying, or
staggering, and did not otherwise appear intoxicated). Hardwick
stated that she has seen Wear intoxicated and he has a tendency to
walk “with a different gait than normal.”
Wear testified that after he left the bar, he went to his house in
Hillview. He checked his e-mail and did not imbibe any alcoholic
beverages. He called his girlfriend, Patricia Foiles, at 12:38 a.m. on
January 2, 2006, to tell her that he was going to go to her house to
sleep over, as he did often since they had been dating. He left for
Foiles’ house, which is approximately a 12- or 15-minute drive.
Wear testified that he drove approximately nine miles east to
Foiles’ house and had no trouble driving on Lincoln Street. He made
two stops on Lincoln, at Carr Street and at Main Street. Wear testified
that he did not see any other vehicles when he was on Lincoln. Rather,
he was driving “normal, right down the middle of the road going in
manholes and the bumps–it’s not a level road.” Wear testified that he
was not weaving and swerving, and was also going near the speed
limit because his Cadillac was “an old car” with a faulty “air
suspension” which he tended to “baby.”
Wear testified that he used his turn signal to turn right onto Bates.
He made a rolling stop at the first stop sign and then a full stop at the
second stop sign at East Carlinville. He noticed lights behind him
when he stopped at Carlinville. He stated, “I mean, my first reflex was
that it was an ordinary driver with his lights on bright, right on top of
my bumper. *** Then immediately thereafter *** I knew it was a
police car and I thought I was in his way and I made my turn.” He
later added, “I was in the process of turning, so I went ahead and
made the turn to get out of his way.” He thought the police car was
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pursuing a “life and death situation.” He turned left on Carlinville and
went a “short block” and parked in Foiles’ driveway. He had no
trouble parking. He had no trouble going into the house and had no
trouble getting in. He did not notice any other cars at that time. He
testified that he did not stumble, stagger, or sway. Foiles testified
consistently with Wear, and also testified that Wear did not appear to
be intoxicated. Foiles testified that she looked out the window after
Wear entered and did not see any other vehicles.
Shortly thereafter, according to both Foiles and Wear, Officer
Dawdy entered the house without verbally announcing himself,
knocking, or asking for their consent to enter. Officer Dawdy asked
Foiles if she wanted him to mace Wear. Officer Dawdy insisted that
Wear exit the house and there was a short conversation about Wear’s
drinking that evening. Wear was not asked to do field sobriety tests
while inside the house. Officer Dawdy arrested Wear and placed him
in handcuffs and took him outside. Wear confirmed that he refused a
chemical breath test after he was arrested.
At the conclusion of the hearing, Wear’s counsel argued that the
officer was “embellishing” and “lying.” He further argued that the
officer did not notice any impaired speech or bloodshot eyes, or
include a number of relevant events in his report. He also emphasized
that the other witnesses had testified that Wear appeared to be sober.
He pointed to the citation indicating under oath that the entire incident
occurred at 12:52 a.m., in contrast to Officer Dawdy’s testimony that
it occurred over 5 or 10 minutes. Furthermore, according to defense
counsel, even if the court credited Officer Dawdy’s testimony, there
was no probable cause or exigent circumstances to justify the
warrantless entry into Foiles’ house without consent.
The State’s Attorney argued that the police officer was credible.
He added that it was up to the court to determine the credibility of the
witnesses at the bar, but suggested that Wear drank at home after the
bar and before he left for Foiles’ house. The State’s Attorney related
that Officer Dawdy had testified that he had formed the intent to arrest
Wear while he was at the door of the house, prior to entry. The
State’s Attorney argued that the totality of the circumstances
supported a finding of probable cause: the initial swerve, the failure to
use a turn signal, the swerving on Bates, the failure to obey the lights,
the staggering, swaying, and stumbling, the odor of alcohol on his
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breath, and the phrase “I made it home.” He also asserted that there
was no violation of the fourth amendment because Officer Dawdy was
engaged in a “hot pursuit,” although he added, “We can debate about
how hot it was.” He added, “He is in pursuit, there is a destruction of
evidence, and just for the common sense reason that we send the
message to DUI defendants if you get home fast enough, get inside
your house, there is really nothing the police can do short of getting
a warrant or getting permission from the homeowner, which may be
hard to do.”
The trial court entered a written order on February 24, 2006. The
trial court noted the two sides’ discrepancies in the testimony as to the
initial swerve, the turn onto Bates, the swerving on Bates Street, the
first stop sign on Bates Street, the second stop sign on Bates/Israel
Street, and the arrival at Foiles’ residence. The court stated, “Not all
of the evidence is officer versus defendant. *** Particularly
noteworthy is the defendant testified that the bright lights were ‘on my
bumper’ just as the defendant turned.” The trial court stated, “Here
the court finds that after considering all of the evidence, the
controverted facts must be resolved in favor of the State.” The court
then noted the proposition that a proper warrantless arrest which
begins in a public place cannot be thwarted by the act of the arrestee
retreating into his home to evade arrest, citing People v. Lagle, 200
Ill. App. 3d 948 (1990), and United States v. Santana, 427 U.S. 38,
49 L. Ed. 2d 300, 96 S. Ct. 2406 (1976). The court stated, “The court
finds that the arrest commenced in a public place and defendant could
not thwart his lawful arrest by retreating into his girlfriend’s
residence.” The court therefore denied the petition to rescind and the
motion to suppress evidence and quash arrest for driving under the
influence. The order made no explicit finding of probable cause.
Wear filed a motion to reconsider. He argued that the trial court
failed to make a specific ruling as to whether there was probable cause
and, further, that the circumstances did not show probable cause.
Wear also challenged the court’s legal ruling, stating that United
States v. Santana was inapplicable because the transcript showed
Officer Dawdy did not begin his arrest until inside the house. He also
argued that the primary reason the officer entered was because of
Wear’s refusal to identify himself. The State argued that according to
the totality of the circumstances, there was probable cause to arrest.
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At oral argument on the motion to reconsider, the trial court stated as
to the State’s version of events, “Of course, according to [defense
counsel] Mr. Turpin, or Mr. Turpin’s client, none of that happened.”
On April 5, 2006, the following docket entry appears in the
record, “After considering the arguments of counsel at the hearing on
the Motion to Reconsider, the court grants the Motion to Reconsider
Ruling. Petition to Rescind Statutory Summary Suspension is granted.
The Motion to Suppress Evidence is granted and the Motion to Quash
Arrest is granted. Clerk directed to provide copy of docket entry to
State’s Attorney and to Attorney Turpin.” The circuit court clerk
completed and signed a form notice to the Secretary of State, as
required by section 2–118.1(b) of the Illinois Vehicle Code (625 ILCS
5/2–118.1(b) (West 2006)). The form states that “[u]pon the
conclusion of the judicial hearing, the Circuit Court found in favor of”
with a box marked with an “X” next to “defendant” followed by
“SUMMARY SUSPENSION OF DRIVING PRIVILEGES
RESCINDED due to:” a box with an “X” with a circle around it
followed by “No Reasonable Grounds.”
On April 10, 2006, a hearing was conducted on the turn-signal
case. After the court stated “[t]he court sees no reason to suppress
any evidence on the turn signal charge,” Wear pleaded guilty. There
is a docket entry that states, “Arrest quashed in 06–DT–1. Cause
stricken. *** Notice given to Defendant, State’s Attorney and
Attorney Turpin in open court.” Also on that date, on the reverse side
of the traffic ticket for the DUI case, there is a handwritten notation
which states, “dismissed nolle prossed.” On the reverse side of the
carbon copy of that same ticket, under the heading “Court Action and
Other Orders” and the subheading “findings,” the circuit court clerk
handwrote an “X” in the box corresponding to “[n]olle prosequi”;
signed the line reserved for his signature; and above the words “Date
Order Entered” wrote “April 10, 2006.”
On April 27, 2006, the State appealed from the order of April 5,
2006, in which the trial court granted Wear’s motion to reconsider its
rulings on the petition to rescind the summary suspension and the
motion to suppress evidence and quash the arrest. On July 27, 2006,
the State filed a certificate of impairment.
Wear first argued that the appeal of the motion to suppress
evidence and quash arrest should be dismissed because the State nol-
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prossed the DUI case. 371 Ill. App. 3d at 523. The appellate court
quoted an affidavit from the circuit court clerk noting that, in regard
to the nolle prosequi order, at no time did he consult with the State’s
Attorney or the judge in making this form; he only did it for record-
keeping purposes. 371 Ill. App. 3d at 523-24. However, finding that
this affidavit was inadmissible to impeach the record, and that the
State had not moved to vacate that order, the appellate court granted
Wear’s motion to dismiss the appeal of the order granting the motion
to quash the arrest and suppress evidence. 371 Ill. App. 3d at 526.
The appellate court refused Wear’s motion to dismiss the summary
suspension case because it was a separate civil proceeding, and the
agreement to dismiss the DUI charge would not reasonably imply a
rescission of the statutory suspension. 371 Ill. App. 3d at 527.
Further, the record contained no objective evidence that the State
agreed to the rescission of the summary suspension. 371 Ill. App. 3d
at 527. The appellate court next found that the exclusionary rule was
applicable to this proceeding, and neither party asserted otherwise.
371 Ill. App. 3d at 527-28.
The appellate court also rejected Wear’s argument that, in viewing
the April 5 order, the court must presume that the trial court found all
issues and controverted facts in favor of the prevailing party. 371 Ill.
App. 3d at 531. Instead, the appellate court held that the trial court
retained its factual findings from the February 24 order because the
motion to reconsider was primarily directed to the trial court’s ruling
pursuant to Santana. 371 Ill. App. 3d at 531.
The court next discussed Santana. The court stated, “Before
defendant retreated into the house, Dawdy set in motion an
investigatory stop, not an arrest. Otherwise, this case resembles
Santana” because there was probable cause for an arrest for DUI. 371
Ill. App. 3d at 532-33. The appellate court found that, under the facts,
Dawdy was in “hot pursuit” of Wear, an exception to the warrant
requirement of the fourth amendment. 371 Ill. App. 3d at 538. “When
defendant repeatedly ignored Dawdy’s commands to stop and tried to
elude him by going (or, rather, staggering) into Foiles’s house,
reasonable suspicion ripened into probable cause, and the fourth
amendment did not require Dawdy to simply shrug his shoulders and
go obtain a warrant.” 371 Ill. App. 3d at 538.
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We allowed Wear’s petition for leave to appeal. 210 Ill. 2d R.
315(a).
ANALYSIS
Section 11–501.1(a) of the Illinois Vehicle Code (625 ILCS
5/11–501.1(a) (West 2006)) provides, in pertinent part, that “[a]ny
person who drives or is in actual physical control of a motor vehicle
upon the public highways of this State shall be deemed to have given
consent *** to a chemical test or tests of blood, breath, or urine for
the purpose of determining the content of alcohol *** in the person’s
blood if arrested *** for [DUI].” If a motorist submits to testing that
reveals a blood-alcohol level in excess of the legal limit, or if he or she
refuses to submit to testing, his or her driving privileges will be
summarily suspended by the Secretary of State upon the submission
of a sworn report of the arresting officer. 625 ILCS 5/11–501.1(d),
(e) (West 2006). A motorist whose driving privileges have been
summarily suspended may request a judicial hearing to seek rescission
of the suspension. 625 ILCS 5/2–118.1 (West 2006).
A hearing on a petition to rescind a summary suspension is a civil
proceeding in which the driver bears the burden of proof. People v.
Smith, 172 Ill. 2d 289, 294-95 (1996). If the driver establishes a prima
facie case for rescission, the burden shifts to the State to come
forward with evidence justifying the suspension. Smith, 172 Ill. 2d at
295. There are four issues that may be raised: (1) whether the person
was placed under arrest for an offense under section 11–501 (625
ILCS 5/11–501 (West 2006)); (2) whether the officer had reasonable
grounds to believe that the person was driving or in actual physical
control of a motor vehicle while under the influence of alcohol,
another drug, or both; (3) whether the person received the statutory
motorist’s warning and refused to complete the test or tests; and (4)
whether the test or tests disclosed an alcohol concentration of 0.08 or
more. 625 ILCS 5/2–118.1(b)(1) through (b)(4) (West 2006). Here,
the court entered an order pursuant to subsection (b)(2) of the statute,
rescinding the summary suspension due to “no reasonable grounds.”
In determining whether there has been “reasonable grounds” under
subsection (b)(2) of the statute, this court has utilized the probable
cause analysis deriving from the fourth amendment. Smith, 172 Ill. 2d
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at 297, citing Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906,
88 S. Ct. 1868, 1880 (1968). Similarly, courts often use the phrase
“reasonable grounds” coterminously with “probable cause” in
summary suspension proceedings. Smith, 172 Ill. 2d at 297 (referring
to “probable cause” in a summary suspension proceeding); People v.
Luedemann, 222 Ill. 2d 530, 532 (2006) (noting that the basis for both
a defendant’s motion to suppress and a petition to rescind was the
lack of “probable cause”); People v. Rush, 319 Ill. App. 3d 34 (2001);
People v. Fortney, 297 Ill. App. 3d 79, 87 (1998). This is because the
issues raised in a petition to rescind and a motion to suppress are
overlapping. Rush, 319 Ill. App. 3d at 38. Indeed, in People v.
Luedemann, we reviewed the appeal of a petition to rescind and a
motion to suppress without making a distinction between the analysis
applied to either motion, although an argument was not made to this
court that such a distinction should be made. Luedemann, 222 Ill. 2d
530.1 Hence, in this review of an appeal of a petition to rescind, we
use the standard of review applicable to the review of suppression
hearings. Luedemann, 222 Ill. 2d at 542.
We apply the two-part standard of review that the United States
Supreme Court adopted in Ornelas v. United States. Luedemann, 222
Ill. 2d at 542, citing Ornelas v. United States, 517 U.S. 690, 699, 134
L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996). A reviewing court
will uphold findings of historical fact made by the circuit court unless
1
This court has never specifically ruled whether the exclusionary rule
should apply to implied-consent proceedings, and does not do so here. The
appellate court has ruled on this question. See, e.g., People v. Krueger, 208
Ill. App. 3d 897, 903-04 (1991) (holding that the exclusionary rule applies
to summary suspension proceedings). While the State argues in its response
brief that the exclusionary rule does not apply to summary suspension
proceedings, the State did not raise this argument before the trial court or the
appellate court. 371 Ill. App. 3d at 528. Therefore, because this argument
was not raised earlier, it is forfeited. People v. Whitfield, No. 102985
(December 13, 2007). We do, however, acknowledge that the use of the
phrase “exclusionary rule” is a misnomer in this context. A prevailing
petitioner would not gain the exclusion of anything from a rescission hearing.
Rather, if the court finds “no reasonable grounds” for an arrest, then the
suspension is simply rescinded.
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such findings demonstrate clear error, and a reviewing court must give
due weight to any inferences drawn from those facts by the fact finder.
Leudemann, 222 Ill. 2d at 542, citing Ornelas, 517 U.S. at 699, 134
L. Ed. 2d at 920, 116 S. Ct. at 1663. “In other words, we give great
deference to the trial court’s factual findings, and we will reverse
those findings only if they are against the manifest weight of the
evidence.” Luedemann, 222 Ill. 2d at 542, citing People v. Sorenson,
196 Ill. 2d 425, 431 (2001). A reviewing court, however, remains free
to undertake its own assessment of the facts in relation to the issues
and may draw its own conclusions when deciding what relief may be
granted. Leudemann, 222 Ill. 2d at 542, citing People v. Pitman, 211
Ill. 2d 502, 512 (2004). “Accordingly, we review de novo the trial
court’s ultimate legal ruling” as to whether the petition to rescind
should be granted. Leudemann, 222 Ill. 2d at 542-43, citing Ornelas,
517 U.S. at 699, 134 L. Ed. at 920, 116 S. Ct. at 1663, Pitman, 211
Ill. 2d at 512; Sorenson, 196 Ill. 2d at 431. We therefore turn to the
relevant fourth amendment principles applicable to Officer Dawdy’s
warrantless arrest of Wear inside Foiles’ home.
The physical entry of the home is the chief evil against which the
wording of the fourth amendment is directed. Welsh v. Wisconsin, 466
U.S. 740, 748, 80 L. Ed. 2d 732, 742, 104 S. Ct. 2091, 2097 (1984);
Payton v. New York, 445 U.S. 573, 585, 63 L. Ed. 2d 639, 650, 100
S. Ct. 1371, 1379 (1980). The fourth amendment guarantees: “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.” U.S.
Const., amend. IV; accord Ill. Const. 1970, art. I, §6. It is a basic
principle of the fourth amendment that searches and seizures inside a
home without a warrant are presumptively unreasonable. Payton, 445
U.S. at 586-87, 63 L. Ed. 2d at 651, 100 S. Ct. at 1380. This is
because, “ ‘[t]o be arrested in the home involves not only the invasion
attendant to all arrests but also an invasion of the sanctity of the home.
This is simply too substantial an invasion to allow without a warrant,
at least in the absence of exigent circumstances, even when it is
accomplished under statutory authority and when probable cause is
clearly present.’ ” Payton, 445 U.S. at 588-89, 63 L. Ed. 2d at 652,
100 S. Ct. at 1381, quoting United States v. Reed, 572 F.2d 412, 423
(2d Cir. 1978); see also People v. Foskey, 136 Ill. 2d 66, 75 (1990)
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(requiring probable cause and exigent circumstances before an officer
may make a warrantless arrest inside a home).
The constitutionally prescribed sanctity of the home, however, is
not limitless. As the United States Supreme Court in Brigham City v.
Stuart, 547 U.S. 398, 164 L. Ed. 2d 650, 126 S. Ct. 1943 (2006),
recently stated, “because the ultimate touchstone of the Fourth
Amendment is ‘reasonableness,’ the warrant requirement is subject to
certain exceptions.” Brigham City, 547 U.S. at 403, 164 L. Ed. 2d at
657, 126 S. Ct. at 1947, citing Flippo v. West Virginia, 528 U.S. 11,
13, 145 L. Ed. 2d 16, 19, 120 S. Ct. 7, 8 (1999) (per curiam); Katz
v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct.
507, 514 (1967). “[L]aw enforcement officers may make a warrantless
entry onto private property to fight a fire and investigate its cause
[citation], to prevent the imminent destruction of evidence [citation],
or to engage in ‘ “hot pursuit” ’ of a fleeing suspect, United States v.
Santana, 427 U.S. 38, 42, 43 (1976).” Brigham City, 547 U.S. at
403, 164 L. Ed. 2d at 657, 126 S. Ct. at 1947. Relevant to the matter
at hand is only one of those enumerated “exceptions,” namely, “hot
pursuit” as set forth by United States v. Santana, 427 U.S. at 42-43,
49 L. Ed. 2d at 305, 427 S. Ct. at 2409-10.
Accordingly, we must first determine if Officer Dawdy had
probable cause to arrest Wear outside of the residence. If so, we
consider if Officer Dawdy’s warrantless and nonconsensual entry into
Foiles’ home was excused under the doctrine of “hot pursuit.”
Probable Cause
Probable cause to arrest exists when the facts known to the officer
at the time of the arrest are sufficient to lead a reasonably cautious
person to believe that the arrestee has committed a crime. People v.
Love, 199 Ill. 2d 269, 279 (2002). That is, the existence of probable
cause depends upon the totality of the circumstances at the time of the
arrest. Love, 199 Ill. 2d at 279, citing People v. Tisler, 103 Ill. 2d 226,
237-38 (1984) (following Illinois v. Gates, 462 U.S. 213, 76 L. Ed.
2d 527, 103 S. Ct. 2317 (1983)). “ ‘In dealing with probable cause,
*** we deal with probabilities. These are not technical; they are the
factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.’ ” Love, 199
-14-
Ill. 2d at 279, quoting Brinegar v. United States, 338 U.S. 160, 175,
93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310 (1949); accord People v.
Wright, 111 Ill. 2d 128, 146 (1985) (probable cause is a practical
concept). “ ‘The standard for determining whether probable cause is
present is probability of criminal activity, rather than proof beyond a
reasonable doubt. [Citations].’ ” People v. Garvin, 219 Ill. 2d 104,
115 (2006), quoting People v. Lee, 214 Ill. 2d 476, 485 (2005).
Indeed, probable cause does not even demand a showing that the
belief that the suspect has committed a crime be more likely true than
false. People v. Jones, 215 Ill. 2d 261, 277 (2005), quoting Texas v.
Brown, 460 U.S. 730, 742, 75 L. Ed. 2d 502, 514, 103 S. Ct. 1535,
1543 (1983) (plurality op.).
Here, the trial court credited the officer’s version of events. Wear
does not renew his argument before the appellate court that the trial
court’s April 5 order superseded the February 26 factual findings.
Rather, he obliquely questions the credibility of the officer in his
opening and reply briefs without arguing that the trial court’s findings
were against the manifest weight of the evidence. Courts of review,
however, will uphold findings of historical fact. Luedemann, 222 Ill.
2d at 542.
The following factors drawn from Dawdy’s testimony are relevant
to determining whether Dawdy had probable cause from an objective
perspective before he entered Foiles’ home: Dawdy testified the
Cadillac was going at a “high rate of speed” perhaps 40 miles per hour
in a 30-mile-per-hour zone, but he did not have a radar gun and was
going in the opposite direction; the Cadillac swerved at Dawdy,
requiring Dawdy to take evasive action; after Dawdy turned around,
Dawdy did not observe the Cadillac swerving by the time he caught
up to him “less than a car length” on East Lincoln, although he
testified that he saw the car swaying at some point; the Cadillac turned
onto Bates, making a “wide” turn onto a narrow street; the Cadillac
did not use a turn signal; Dawdy turned on his rotator lights and his
takedown lights, but not his siren; Dawdy followed the Cadillac that
was weaving on Bates/Israel, a street with manholes and dips, that
Dawdy said drivers would probably avoid; the Cadillac rolled through
a stop sign and made a full stop at another, all while driving at a
normal speed; Wear exited the vehicle and stumbled, swayed, and
staggered the 15 feet from the car door to the residence, a path that
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pictures show has cracked concrete, a step, and disorganized furniture
on the porch; Wear did not respond to Dawdy’s five or six commands
to get back into the vehicle; Foiles opened the door; Wear stopped at
the threshold, apparently turned around, and stated several times while
he was at the door, “I made it home”; as Wear was saying this, Dawdy
was less than a foot away; Dawdy described Wear’s breath as having
an odor of alcohol.
Based on the above, we conclude that there was probable cause
to arrest Wear, as a reasonably cautious person would have thought
a crime had taken place. At the very least, the officer had probable
cause at the threshold of Foiles’ house. There, Wear told Officer
Dawdy “I made it home” several times. His breath also had an odor of
alcoholic beverage. The officer also observed instances of swerving,
rolling through a stop sign, as well as stumbling and staggering while
ignoring the officer’s repeated orders to stop. This is in addition to the
failure to use a turn signal, a violation of the Vehicle Code (625 ILCS
5/11–804(b) (West 2006)), and also the failure to come to a complete
stop, a separate traffic violation (625 ILCS 5/11–904(b) (West
2006)). These circumstances, in totality, indicate that Officer Dawdy,
viewed objectively, had probable cause to arrest Wear for DUI.
Wear further maintains that because Officer Dawdy’s own
testimony was that he did not have probable cause outside of Foiles’
house, then this court cannot find he had probable cause on review.
We note that the United States Supreme Court has recently rejected
an argument similar to Wear’s, regarding a police officer’s subjective
state of mind. As the Court stated in Brigham City, 547 U.S. at 404,
164 L. Ed. 2d at 658, 126 S. Ct. at 1948:
“Our cases have repeatedly rejected this approach. An
action is ‘reasonable’ under the Fourth Amendment,
regardless of the individual officer’s state of mind, ‘as long as
the circumstances, viewed objectively, justify [the] action.’
[Citation.] The officer’s subjective motivation is irrelevant.”
(Emphasis omitted.)
Accordingly, it is irrelevant that Officer Dawdy did not form the intent
to arrest Wear until he was inside, because, based on objective
circumstances, he retained the ability to arrest him when he was
outside.
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Wear also argues that the appellate court extended the holding of
United States v. Santana, 427 U.S. 38, 49 L. Ed. 2d 300, 96 S. Ct.
2406 (1976), to permit a warrantless, nonconsensual entry into a
dwelling to conduct an investigatory Terry stop when the officer is in
“hot pursuit.” The State, however, disagrees with this reading of the
appellate court opinion and does not contest this specific issue.2 To
the extent that the appellate court opinion may be so read, however,
we reiterate that the language of the fourth amendment itself explicitly
prohibits entry into the home absent probable cause. U.S. Const.,
amend. IV; accord Ill. Const. 1970, art. I, §6. Hence, were objective
indicia of probable cause absent in this case, Officer Dawdy’s entry
into the residence to merely conduct an investigatory Terry stop
would have violated the fourth amendment. See LaLonde v. County
of Riverside, 204 F.3d 947 (9th Cir. 2000); In re D.W., 341 Ill. App.
3d 517 (2003). Nevertheless, Wear’s reading of the appellate opinion
is irrelevant as we have noted probable cause existed in the present
matter. We therefore turn to whether Officer Dawdy’s entrance of the
residence through the open door following Wear was permissible “hot
pursuit” under Santana.
Hot Pursuit
Generally, a warrantless and nonconsensual entry into a suspect’s
home to make an arrest is prohibited by the fourth amendment, even
2
The State asserts in its brief: “Wear’s concern that the decision below
will permit police to enter a residence with mere reasonable suspicion, rather
than probable cause, is baseless. Wear’s repeated assertion that the appellate
court’s ruling allows police to enter a residence under the Santana ‘hot
pursuit’ doctrine based solely on reasonable suspicion is incorrect: the
appellate court clearly held that Dawdy’s entry was predicated on probable
cause *** it said nothing about what Dawdy could have done based on mere
reasonable suspicion. The appellate court’s holding–that whether an officer
‘intends’ to effect a stop or an arrest is irrelevant under Santana’s hot
pursuit rule–simply does not address the hypothetical situation Wear poses.”
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with probable cause.3 Payton, 445 U.S. at 586-87, 63 L. Ed. 2d at
651, 100 S. Ct. at 1380. Notwithstanding the warrant requirement, a
suspect may not defeat an arrest that was set in motion in a public
place by escaping to a private place. United States v. Santana, 427
U.S. 38, 43, 49 L. Ed. 2d 300, 306, 96 S. Ct. 2406, 2410 (1976). In
Santana, the police had probable cause to arrest an individual and
drove to her house to do so. Upon arriving there, the police observed
the person standing directly in the doorway of the house. Santana,
427 U.S. at 40, 49 L. Ed. 2d at 304, 96 S. Ct. at 2408. The police
identified themselves and, as they approached, Santana retreated into
her house. Santana, 427 U.S. at 40, 49 L. Ed. 2d at 304, 96 S. Ct. at
2408. The officers followed her in, catching her in the vestibule.
Santana, 427 U.S. at 40-41, 49 L. Ed. 2d at 304, 96 S. Ct. at 2408-
09.
The Court determined that Santana was in a public place as she
stood in the doorway and was subject to a warrantless arrest at that
point. Santana, 42 U.S. at 42, 49 L. Ed. 2d at 305, 96 S. Ct. at 2409.
More importantly, the Court concluded that the police were not
required to refrain from entering the home and arresting her without
a warrant. The Court pointed out that “hot pursuit,” which justified
the warrantless entry in that case, meant “some sort of a chase” but
did not require an extended pursuit through the public streets.
Santana, 42 U.S. at 43, 49 L. Ed. 2d at 305, 96 S. Ct. at 2410.
Here, we see little relevant difference between this case and
Santana. In both cases, the officers had probable cause to arrest when
they were standing in the doorway, which is considered a public place.
The Santana Court held that police were not required to refrain from
entering the home and arresting her without a warrant. Similarly,
Officer Dawdy was not required to refrain from entering Foiles’ home
and arresting Wear without a warrant because he had probable cause
to arrest the Wear at the threshold and Wear continued inside.
3
Wear’s standing is not at issue, as the parties stipulate as to standing
under Minnesota v. Olson, 495 U.S. 91, 96-97, 109 L. Ed. 2d 85, 93, 110
S. Ct. 1684, 1688 (1990), which stated, “Olson’s status as an overnight
guest is alone enough to show that he had an expectation of privacy in the
home that society is prepared to recognize as reasonable.”
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Moreover, additional facts are present in this case that are not
present in Santana. Unlike Santana, Dawdy was already in pursuit of
defendant after he turned around at Bruce Street. As Wear continued
toward Foiles’ house, there were more and more indications that Wear
had committed a DUI. Officer Dawdy observed a swerve and a traffic
violation, then turned on his rotator and takedown lights. These were
apparently ignored or unobserved by Wear as he then rolled through
a stop sign, and staggered to a door opened by Foiles. He stated,
repeatedly, “I made it home” while the door was open and Dawdy
stood less than a foot away. At this point, Dawdy testified, he smelled
the odor of alcohol emanating from his breath. Although this was not
a high-speed chase, under Dawdy’s testimony, he told Wear to stop
and return to his vehicle five or six times even after he had been
following Wear with his lights illuminated for five or six blocks.
We next reject Wear’s contention that our decision is controlled
by the United States Supreme Court’s decision in Welsh v. Wisconsin
466 U.S. 740, 80 L. Ed. 2d 732, 104 S. Ct. 2091 (1984). In Welsh, a
driver lost control of his car and came to a stop in a field. A witness
saw the driver walk away and told the police that the driver was either
very inebriated or very sick. The police went to the driver’s house,
which was a short distance away. The police entered the home
without a warrant and arrested the driver who was in his bed naked by
that time. Welsh, 466 U.S. at 742-44, 80 L. Ed. 2d at 738-39, 104 S.
Ct. at 2093-94. In Welsh, the Supreme Court first reasoned that the
warrantless arrest violated the fourth amendment because there was
no immediate or continuous pursuit from the scene of the crime.
Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099. In
contrast, in the instant matter there was an immediate and continuous
pursuit at some point after Dawdy illuminated his police vehicle’s
lights on Bates and Lincoln, and one that continued up to and through
the threshold of Foiles’ house.
The Welsh court also found the warrantless arrest violated the
fourth amendment because, in Wisconsin, driving while intoxicated
was a nonjailable civil offense. Welsh, 466 U.S. at 754, 80 L. Ed. 2d
at 745-46, 104 S. Ct. at 2100. As the Welsh Court noted, “an
important factor to be considered when determining whether any
exigency exists is the gravity of the underlying offense for which the
arrest is being made.” Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745,
-19-
104 S. Ct. at 2099. The Welsh Court’s opinion was premised on the
gravity a state assigns to the offense as the “the best indication of the
State’s interest in precipitating an arrest.” Welsh, 466 U.S. at 754, 80
L. Ed. 2d at 746, 104 S. Ct. at 2100, see also Welsh, 466 U.S. at 755,
80 L. Ed. 2d at 747, 104 S. Ct. at 2100 (Blackmun, J., concurring)
(noting that the outcome of the case depended in large part on
Wisconsin’s fine-only penalty). Moreover, the Welsh Court explicitly
stated that “[b]ecause we conclude that, in the circumstances
presented by this case, there were no exigent circumstances sufficient
to justify a warrantless home entry, we have no occasion to consider
whether the Fourth Amendment may impose an absolute ban on
warrantless home arrests for certain minor offenses.” Welsh, 466 U.S.
at 749 n.11, 80 L. Ed. 2d at 743 n.11, 104 S. Ct. at 2097 n.11.
In contrast, in Illinois, a first DUI is a Class A misdemeanor (625
ILCS 5/11–501(b–2) (West 2006) punishable by up to 364 days in jail.
730 ILCS 5/5–8–3 (West 2006). It is thus apparent that the State of
Illinois’ interest is significantly different from that of Wisconsin in
Welsh with regard to the offense of driving while under the influence
of alcohol. See Welsh, 466 U.S. at 754 n.14, 80 L. Ed. 2d at 746 n.14,
104 S. Ct. at 2100 n.14 (stating “the penalty that may attach to any
particular offense seems to provide the clearest and most consistent
indication of the State’s interest in arresting individuals suspected of
committing that offense”). We, therefore, do not accept Welsh as
controlling our decision that Officer Dawdy properly arrested Wear.
Thus, we conclude that Officer Dawdy had probable cause to
arrest Wear at the doorway. His warrantless, nonconsensual entry into
Foiles’ residence was excused under the doctrine of hot pursuit.
Therefore, the appellate court properly reversed the trial court’s
rescission of Wear’s summary suspension.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the appellate
court.
Affirmed.
JUSTICE BURKE, specially concurring:
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I agree with the majority that, based on defendant’s driving,
Officer Dawdy had reasonable suspicion that defendant was driving
while under the influence of alcohol when the officer approached the
Foiles residence. Further, I agree that Officer Dawdy’s reasonable
suspicion ripened into probable cause to arrest for DUI prior to the
time that Dawdy crossed the threshold into the Foiles residence. I also
agree that under the circumstances of this case, Officer Dawdy
entered the residence in “hot pursuit” of the defendant. However, I do
not believe that a police officer’s warrantless entry into a dwelling may
be justified on the basis of “hot pursuit” without regard to the
seriousness of the crime for which the person is being pursued.
Moreover, even when exigent circumstances, such as “hot pursuit,”
exist to provide a basis for dispensing with the warrant requirement,
the reasonableness of the officer’s nonconsensual entry into a private
residence, for fourth amendment purposes, depends on the totality of
the circumstances. Thus, while I agree with the ultimate result reached
by the majority, and therefore concur in its judgment, I disagree with
the court’s analysis and write separately.
ANALYSIS
The case at bar provides this court its first opportunity to consider
whether “hot pursuit” is an exigency which justifies a warrantless,
nonconsensual entry into a home to effectuate an arrest for a
nonfelony offense. The majority fails to acknowledge this fact and
simply finds that “hot pursuit” justified the warrantless arrest in the
case at bar. The majority relies almost exclusively on the Supreme
Court decision in United States v. Santana, 427 U.S. 38, 49 L. Ed. 2d
300, 96 S. Ct. 2406 (1976), stating, “we see little relevant difference
between this case and Santana.” Slip op. at 17. Santana, however,
involved hot pursuit of a fleeing felon. Moreover, Santana did not rely
solely on “hot pursuit” to justify the warrantless entry into the home
in that case but, rather, looked to the totality of the circumstances to
find the warrantless arrest reasonable under the fourth amendment.
In Santana, an undercover narcotics officer for the City of
Philadelphia gave marked bills to a contact, Patricia McCafferty, and
drove her to the home of “Ma Santana,” where she purchased heroin
with the marked bills. Shortly after McCafferty returned to the
undercover officer’s car and turned over the heroin, the officer
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revealed his identity and arrested McCafferty. Immediately thereafter
other officers, having probable cause to arrest Santana on felony drug
charges, went to her home. As they approached the residence, the
officers saw Santana standing in the doorway of the house, holding a
brown paper bag. The officers exited the police car and ran up to the
home, shouting “Police.” Santana took a few steps backward into the
vestibule of the house and the officers followed her through the open
door and arrested her.
When the Supreme Court was asked to consider whether
Santana’s warrantless arrest had been lawful, seven justices concluded
that it was. Justice Rehnquist, writing for the majority, reached this
conclusion relying on the fact that, in United States v. Watson, 423
U.S. 411, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976), the Court had held
that “the warrrantless arrest of an individual in a public place upon
probable cause did not violate the Fourth Amendment.” Santana, 427
U.S. at 42, 49 L. Ed. 2d at 305, 96 S. Ct. at 2409. Applying Watson
to the situation before the Court, Rehnquist held that, “when the
police, who concededly had probable cause to do so, sought to arrest
her, they merely intended to perform a function which [was] approved
in Watson.” Santana, 427 U.S. at 42, 49 L. Ed. 2d at 305, 96 S. Ct.
at 2409. Rehnquist then reasoned that Santana could not thwart her
lawful arrest “by the expedient of escaping to a private place.”
Santana, 427 U.S. at 43, 49 L. Ed. 2d at 306, 96 S. Ct. at 2410. He
concluded that the officers’ entry into the home was justified because
the police were in “hot pursuit.” Rehnquist also noted that, once
Santana saw the police, the officers had a legitimate fear that any
delay would result in the destruction of evidence. Santana, 427 U.S.
at 43, 49 L. Ed. 2d at 306, 96 S. Ct. at 2410.
Justice White, while joining the majority, wrote separately to
express his belief that a warrantless entry into a home was justified
whenever the police had probable cause to arrest and probable cause
to believe that the offender was inside the home, as long as “entry by
force was not required.” Santana, 427 U.S. at 44, 49 L. Ed. 2d at
306, 96 S. Ct. at 2410 (White, J., concurring).
In another separate concurrence, Justice Stevens, joined by Justice
Stewart, expressed the belief that, because there had been probable
cause which would have been sufficient to obtain a warrant, the
officers’ failure to obtain a warrant was “a justifiable police decision,
-22-
and *** even if not justifiable, harmless.” Santana, 427 U.S. at 44, 49
L. Ed. 2d at 306, 96 S. Ct. at 2410 (Stevens, J., concurring, joined by
Stewart, J.). Justice Stevens explained that the police decision to make
a warrantless arrest was justified because of the “significant risk” that
the marked money would no longer be in Santana’s possession if the
police had waited for a warrant. In addition, it was harmless because
the officers could have waited outside the home while a warrant was
obtained, but when Santana came into “plain view” the warrantless
arrest was justified before a warrant could be procured. Santana, 427
U.S. at 45, 49 L. Ed. 2d at 306, 96 S. Ct. at 2410 (Stevens, J.,
concurring, joined by Stewart, J.).
Justice Marshall, joined by Justice Brennan, dissented. In Justice
Marshall’s view, a warrantless arrest is never justified absent exigent
circumstances. While he agreed that in the case before the court an
exigency existed, i.e., the likelihood that evidence of a crime would be
destroyed, he believed this exigency was “produced solely by police
conduct.” Santana, 427 U.S. at 45, 49 L. Ed. 2d at 307, 96 S. Ct. at
2411 (Marshall, J, dissenting, joined by Brennan, J.). Justice Marshall
pointed out that, because the undercover officer did not take
McCafferty to a more remote location before arresting her, her arrest
made it necessary for other officers to rush to Santana’s home for fear
that word would get back to Santana and she would dispose of the
marked bills. For this reason, the dissenters would have remanded the
matter for further proceedings to determine whether the decision to
arrest McCafferty so close to Santana’s house had been a deliberate
attempt to create an exigency so as to circumvent the warrant
requirement.
Despite the variations in viewpoint, what can be gleaned from the
majority and separate opinions in Santana, including the dissent, is
that a warrantless, nonconsensual entry into a private dwelling to
effectuate a felony arrest will not violate the fourth amendment
prohibition against unreasonable searches and seizures if the arresting
officers have probable cause to arrest and the officers’ entry onto
private property is reasonable in light of the attendant circumstances.
At a minimum, entry onto private property to effectuate a warrantless
arrest will be reasonable if (1) probable cause to arrest exists prior to
the entry onto private property, and (2) the attendant circumstances
include an element of exigency that justifies the decision to proceed
-23-
without waiting to obtain a warrant. See also Payton v. New York, 445
U.S. 573, 583-90, 63 L. Ed. 2d 639, 649-53, 100 S. Ct. 1371, 1378-
82 (1980) (probable cause plus exigent circumstances are required
before police may make a warrantless, nonconsensual entry into a
dwelling to conduct a search or seizure).
Turning to the case at bar, the facts reveal that Officer Dawdy
made a warrantless, nonconsensual entry into the home of Patricia
Foiles and thereafter arrested defendant Wear on a charge of driving
under the influence (DUI)) (625 ILCS 5/11–501(a)(2) (West 2000)),
a misdemeanor. Defendant argues in his brief that there are important
distinctions between the case at bar and Santana because here the
arresting officer’s subjective intent for entering the residence was to
conduct a Terry stop regarding the misdemeanor offense of DUI, not
to effectuate a felony arrest. He asks this court to make clear that,
even if an officer is in “hot pursuit” and the suspect escapes to a
private place, a police officer is not entitled to enter that private place
to conduct an investigatory stop based on a reasonable suspicion that
the suspect has committed a crime, particularly where, as here, the
suspected offense is not a felony.
The majority finds that, from an objective viewpoint, Officer
Dawdy had probable cause to arrest defendant for DUI prior to the
officer’s entry into the home. Thus, although Officer Dawdy’s
subjective belief was that he was entering the residence to conduct a
Terry stop, that subjective belief is not controlling. The majority
makes clear that “were objective indicia of probable cause absent in
this case, Officer Dawdy’s entry into the residence to merely conduct
an investigatory Terry stop would have violated the fourth
amendment.” Slip op. at 17.
I agree with the majority that, from an objective standpoint,
Officer Dawdy’s reasonable suspicion that defendant had been driving
while intoxicated ripened into probable cause to arrest for DUI while
the officer stood on the threshold of the Foiles residence. My concern,
however, is not with the majority’s treatment of the probable cause
inquiry. Rather, I believe that the majority errs and fundamentally
alters fourth amendment law when, in determining whether an
exigency exists, it considers whether the circumstances constitute “hot
pursuit” without regard to the seriousness of the underlying offense
-24-
and fails to assess the reasonableness of Officer Dawdy’s conduct in
light of the totality of the circumstances.
In the case at bar, the majority determines that the circumstances
in this case constitute “hot pursuit”and then concludes that the
exigent-circumstances requirement for an officer’s warrantless,
nonconsensual entry into private premises (Payton v. New York, 445
U.S. 573, 583-90, 63 L. Ed. 2d 639, 649-53, 100 S. Ct. 1371, 1378-
82 (1980)) was satisfied. See slip op. at 20 (“[Dawdy’s] warrantless,
nonconsensual entry into Foiles residence was excused under the
doctrine of hot pursuit”). In so doing, the majority relies on Santana
without acknowledging that in Santana the officers were attempting
to apprehend a fleeing felon. The majority fails to recognize that the
seriousness of the underlying offense is part of the calculus for
determining whether exigent circumstances exist. For this reason, I
believe the majority’s analysis is incomplete.
In determining whether a particular governmental action violates
the fourth amendment, a court must evaluate the search or seizure
under traditional standards of reasonableness by assessing, on the one
hand, the degree to which it intrudes upon an individual's privacy and,
on the other, the degree to which it is needed for the promotion of
legitimate governmental interests. Wyoming v. Houghton, 526 U.S.
295, 143 L. Ed. 2d 408, 119 S. Ct. 1297 (1999); Vernonia School
District 47J v. Acton, 515 U.S. 646, 652-53, 132 L. Ed. 2d 564, 574,
115 S. Ct. 2386, 2390 (1995). In general, a warrantless arrest by a
police officer will be reasonable for fourth amendment purposes if the
officer has probable cause to believe that the person has committed or
is committing a criminal offense. However, warrantless searches or
seizures occurring inside the home are presumptively unreasonable
(Payton v. New York, 445 U.S. 573, 586, 63 L. Ed. 2d 639, 651, 100
S. Ct. 1371, 1380 (1980)). Thus, if an officer possessing probable
cause to arrest has no warrant, he may enter into a private residence
to effectuate an arrest only if exigent circumstances exist that will
excuse the warrant requirement. In other words, exigent
circumstances may substitute for the warrant requirement. However,
when deciding whether exigent circumstances exist, the seriousness of
the crime involved is a factor to be considered. See People v. Foskey,
136 Ill. 2d 66 (1990) (one of the factors that may be taken into
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account in assessing exigency in a particular situation is whether a
grave offense is involved).
In the case at bar, the majority opinion finds that the officer’s
warrantless entry into the private residence to effectuate defendant’s
arrest was justified because the officer had probable cause to arrest
and he was in “hot pursuit.” Nothing in the majority’s opinion would
suggest that the seriousness of the underlying offense played any role
in determining whether exigent circumstances existed in this case. I
cannot agree with this approach. In my view it is overly broad and
serves to erode the important privacy protections guaranteed by the
fourth amendment. See N. Vaughan, Overgeneralization of the Hot
Pursuit Doctrine Provides Another Blow to the Fourth Amendment
in Middletown v. Flinchum, 37 Akron L. Rev. 509, 528 (2004) (when
reviewing a warrantless arrest for reasonableness, if a court does not
take into consideration the severity of the crime for which the
defendant is being pursued, the court abandons the balancing test,
resulting in “the right to privacy being permanently outweighed in the
realm of hot pursuit”).
In Welsh v. Wisconsin, 466 U.S. 740, 80 L. Ed. 2d 732, 104 S. Ct.
2091 (1984), the Supreme Court found that a warrantless entry into
a home to arrest the defendant for DUI violated the fourth amendment
due to a lack of exigent circumstances. The Court held:
“Our hesitation in finding exigent circumstances, especially
when warrantless arrests in the home are at issue, is
particularly appropriate when the underlying offense for which
there is probable cause to arrest is relatively minor. Before
agents of the government may invade the sanctity of the home,
the burden is on the government to demonstrate exigent
circumstances that overcome the presumption of
unreasonableness that attaches to all warrantless home entries.
See Payton v. New York, supra, at 586. When the
government’s interest is only to arrest for a minor offense, that
presumption of unreasonableness is difficult to rebut, and the
government usually should be allowed to make such arrests
only with a warrant issued upon probable cause by a neutral
and detached magistrate.” Welsh, 466 U.S. at 750, 80 L. Ed.
2d at 743, 104 S. Ct. at 2098.
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The Welsh Court also noted that “[e]ven the dissenters in Payton,
[while] believing that warrantless home arrests [were] not prohibited
by the Fourth Amendment, recognized the importance of the felony
limitation on such arrests.” Welsh, 466 U.S. at 750 n.12, 80 L. Ed. 2d
at 743 n.12, 104 S. Ct. at 2098 n.12, citing Payton, 445 U.S. at 616-
17, 63 L. Ed. 2d at 669, 100 S. Ct. at 1395 (White, J., dissenting,
joined by Burger, C.J., and Rehnquist, J.) (“The felony requirement
guards against abusive or arbitrary enforcement and ensures that
invasions of the home occur only in case of the most serious crimes”).
See also McDonald v. United States, 335 U.S. 451, 93 L. Ed. 153, 69
S. Ct. 191 (1948) (a finding of exigent circumstances to justify a
warrantless home entry should be severely restricted when only a
minor offense has been committed).
Importantly, Welsh did not hold that a warrantless entry into a
dwelling will be valid only if the offense for which the defendant was
arrested is a felony. Rather, the Court held:
“We therefore conclude that the common-sense approach
utilized by most lower courts is required by the Fourth
Amendment prohibition on ‘unreasonable searches and
seizures,’ and hold that an important factor to be considered
when determining whether any exigency exists is the gravity
of the underlying offense for which the arrest is being made.
Moreover, although no exigency is created simply because
there is probable cause to believe that a serious crime has been
committed, see Payton, 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 the kind at issue in this case,
has been committed.” Welsh, 466 U.S. at 753, 80 L. Ed. 2d at
745, 104 S. Ct. at 2099.
In Welsh, the warrantless entry into the defendant’s home
occurred late at night after the police found a recently abandoned car
and were told by a witness that the driver of the car had swerved off
the road and then walked off, appearing to be either sick or inebriated.
The police checked the registration inside the car and determined that
the owner of the car lived a short distance away. They went to the
home without first obtaining a warrant, found defendant asleep inside
his bedroom, and arrested him for driving while intoxicated. When the
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defendant challenged the lawfulness of his arrest, the Wisconsin
Supreme Court upheld the arrest, finding a “co-existence of probable
cause and exigent circumstances” justified the warrantless entry into
the home. The exigent circumstances that the state court relied upon
were the hot-pursuit doctrine, the threat to public safety, and the need
to preserve evidence of the petitioner’s blood-alcohol level.
On review,4 the United States Supreme Court found that none of
the proffered reasons for making a warrantless entry constituted
exigent circumstances under the facts of the case. The Welsh Court
held:
“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 no 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.
*** 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. See
Wis. Stat. §346.65(2) (1975); §346.65(2)(a) (Supp. 1983-
1984); supra, at 746. This is the best indication of the State’s
interest in precipitating an arrest, and is one that can be easily
identified both by the courts and by officers faced with a
decision to arrest. See n.6, supra. Given this expression of the
State’s interest, a warrantless home arrest cannot be upheld
simply because evidence 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
4
The Court did not consider whether there had been probable cause
because the defendant never challenged the finding by the state courts below
that probable cause existed.
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approve unreasonable police behavior that the principles of the
Fourth Amendment will not sanction.” Welsh, 466 U.S. at
753-54, 80 L. Ed. 2d at 745-46, 104 S. Ct. at 2099-2100.
A majority of the jurisdictions that have considered the matter
have limited Welsh’s restriction on warrantless arrests to nonjailable
offenses and, thus, have held that exigent circumstances may exist
when there is probable cause to believe that a misdemeanor, rather
than a felony, has been committed. See People v. Thompson, 38 Cal.
4th 811, 822-23, 135 P.3d 3, 10, 43 Cal. Rptr. 3d 750, 758-59
(2006) (and the cases cited therein).
Here, the majority distinguishes Welsh on the grounds that, under
Wisconsin law, a first DUI offense was a nonjailable, civil offense,
whereas, in Illinois, a DUI conviction is a more serious misdemeanor,
punishable by up to 364 days in jail. Slip op. at 19. However, the
majority does not treat the seriousness of the offense as a factor in its
determination of whether exigent circumstances exist.
Nor does the majority, having found exigent circumstances to
exist, look at the reasonableness of the officer’s actions in light of the
totality of the circumstances. In my view, we should reaffirm our
decision in Foskey and hold that a determination that a warrantless
arrest is reasonable in a certain case cannot be made without looking
at the totality of the circumstances that led up to the police officer’s
decision to make a warrantless entry into a dwelling. See Foskey, 136
Ill. 2d at 75-76 (In determining whether the police acted reasonably,
the court must look to the totality of the circumstances confronting
the officers at the time the entry was made. The circumstances must
militate against delay and justify the officers’ decision to proceed
without a warrant. The guiding principle in such cases is
reasonableness, and each case must be decided on its own facts); see
also Brigham City v. Stuart, 547 U.S. 398, 164 L. Ed. 2d 650, 126 S.
Ct. 1943 (2006) (wherein the Court, after finding exigent
circumstances, looked to the reasonableness of the officers’ action
under the totality of the circumstances).
Although I find the majority’s analysis lacking for the above
reasons, I agree with the majority that exigent circumstances existed
that rendered Officer Dawdy’s entry into the Foiles residence
reasonable and defendant’s subsequent warrantless arrest lawful.
Officer Dawdy had probable cause to arrest defendant for DUI at a
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time when defendant was standing just inside the threshold of the
Foiles residence–a place considered “public” in Santana. Thus, a
lawful arrest could have been made at that time and defendant could
not thwart his lawful arrest by the expedient of walking into the
private residence. See Santana, 427 U.S. at 42-43, 49 L. Ed. 2d at
305, 96 S. Ct. at 2409-10.
Further, based on the manner in which “hot pursuit” has been
defined (see Santana, 42 U.S. at 43, 49 L. Ed. 2d at 305, 96 S. Ct. at
2410), Officer Dawdy was in “hot pursuit” of defendant when he
entered the Foiles residence. “Hot pursuit” requires some indication
of a chase. That is, the evidence must show that the defendant was
aware that he was being pursued by the police and that the defendant
retreated, or “fled,” from a public place to a private place to escape or
avoid arrest. Clearly, the evidence in the case at bar meets this criteria.
When defendant got out of his car and proceeded toward the
residence, Officer Dawdy pulled up behind defendant’s car and
repeatedly demanded that defendant stop and remain by his vehicle.
Officer Dawdy also followed defendant to the door of the residence,
where defendant spoke with Officer Dawdy, stating that he had “made
it home.” Officer Dawdy asked defendant for his identification, but
defendant refused to comply and retreated further into the home.
Defendant was aware that Officer Dawdy was asking for his
identification as a preliminary to arresting him. Defendant’s retreat
into the home was to avoid that arrest. Furthermore, although the
offense for which defendant was arrested was a misdemeanor and not
a felony, DUI in Illinois is a jailable offense and, for that reason, is
sufficiently serious to justify the officer’s entry into the home to
effectuate the arrest.
Finally, I would find that, under the totality of the circumstances,
Officer Dawdy acted reasonably. Although entry into the home was
nonconsenual, it was made peaceably. Officer Dawdy did not have to
break down doors or use a show of force–he simply followed
defendant into the residence. Accordingly, I would find that Officer
Dawdy was not required to refrain from entering the home or attempt
to obtain a warrant before arresting defendant. For these reasons, I
agree with the majority’s ultimate determination that defendant’s
arrest was lawful and thus I would also affirm the defendant’s
conviction.
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JUSTICES FREEMAN and KILBRIDE join in this special
concurrence.
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