WELSH v. WISCONSIN

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ORAL ARGUMENT OF GORDON B. BALDWIN, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: We'll hear arguments next in Welsh against Wisconsin.

Mr. Baldwin, I think you may proceed when you are ready.

Gordon B. Baldwin: Mr. Chief Justice, and may it please the Court:

This is an exigent circumstances case.

On that proposition I think there is agreement between the State and the Defendant.

The issue in this case is whether an exigent circumstances doctrine will justify the arrest of the Defendant in his home.

The Wisconsin Supreme Court calling Fourth Amendment standards upheld the right of police without a warrant and without establishing consent to enter a home at night to arrest the householder for a traffic offense that was not committed in the officer's presence.

Unidentified Justice: You said at night.

About what time was it?

Gordon B. Baldwin: The officer reportedly heard the call at 8:49 p.m. There was some dispute as to how long it took the officer to get to the house.

I think it is generally agreed it is about 9:00.

That was about a week before we would have gone on to daylight savings time so it was dark.

The Wisconsin Supreme Court justified the traffic arrest applying its traffic arrest statute, and it held that exigent circumstances justified the arrest.

It did so for three reasons: first, that the arrest was justified by a hot pursuit doctrine; secondly, that the Defendant who as I said was arrested in his home in his bedroom constituted a possible threat to public safety; and third, that the arrest was necessary in order to secure evidence of possible intoxication.

Now on the facts we do not know exactly what the arresting officer knew.

The arresting officer relied on an eye witness who saw a car driven erratically, crossed in front of oncoming traffic and stopped or got stuck in an open field or cemetery.

Unidentified Justice: When you said at the outset that this was truly an exigent circumstances case, did you mean that the exigent circumstance is the need of the officers to apprehend this gentleman while he might still be subject to a breathalyzer test or observation?

Gordon B. Baldwin: The officers justified, Mr. Chief Justice, the entry into the home as required by the need to obtain a blood-alcohol test, Officer Daley said, within two hours of the event to be proved.

Unidentified Justice: In other words to preserve evidence.

Gordon B. Baldwin: This was to preserve... As Officer Daley said, yes, to preserve evidence of intoxication he felt he had to enter the home under those circumstances.

The officer had been called by a passing motorist and spoke to the eye witness.

We do not know exactly what the eye witness said, but there is a discrepancy between what the eye witness testified on the stand where he said he thought that the errant driver was either drunk or sick and what the officer said he said.

The officer said he received the opinion that the errant driver was definitely intoxicated.

There was a difference.

My point is that we would know what the arresting officer knew or thought if we had a warrant applied for during the course of that next hour or so.

The officer did trace the automobile to the Defendant's home which was about half a mile away, went quickly to the home, knocked on the door.

That is clear.

What happened at the door is in dispute because the sixteen-year-old step-daughter who answered the knock was not available to testify to when this hearing occurred about two years later.

The officer went upstairs to the bedroom where he encountered Edward Welsh--

Unidentified Justice: Did the Circuit Court make any finding as to whether it had been consent?

Gordon B. Baldwin: --The Circuit Court explicitly said we do not examine the question of consent.

Its rationale was that the witnesses who are relevant to the question of consent were not then available.

The Circuit Court held, Judge Frankel held that the exigent circumstances doctrine including the hot pursuit doctrine justified this pursuit and entry into the home.

Unidentified Justice: The Supreme Court of Wisconsin likewise did not pass on the issue of consent?

Gordon B. Baldwin: The Supreme Court of Wisconsin likewise said that the exigent circumstances doctrine justified excusing the warrant and consent requirement.

The Court of Appeals of Wisconsin, however, had reversed the trial court because there was no finding of consent.

In turn, the Wisconsin Supreme Court by a vote of four votes to two found that consent was not necessary to be shown in this case.

Unidentified Justice: Did the officer know the man?

Gordon B. Baldwin: The officer testified that he had remembered the name from an incident that happened he said a week or two before... Actually it probably was somewhat earlier than that... in which he said he had arrested Mr. Welsh in an alcohol-related disturbance.

That is all we have in the record, but it had nothing to do with traffic.

It did not say anything about traffic.

It said it was an alcohol-related disturbance.

That is what we have in the record.

Unidentified Justice: He did not know that he drove the car?

Gordon B. Baldwin: He obviously was highly suspicious, of course, sure.

Unidentified Justice: I beg your pardon?

Gordon B. Baldwin: He was highly suspicious that the car had been driven by the owner, and the owner, of course, is the Defendant in this case.

He did not know.

Unidentified Justice: You mean that every car on the street is driven by the owner?

Gordon B. Baldwin: Oh, no.

Oh, no.

Unidentified Justice: What--

Gordon B. Baldwin: The officer was suspicious.

There is no question about it.

If, for example, Mr. Justice Marshall, if the officer had encountered my client on the door steps of the home, we do not deny that there would have been a right to stop, investigate, question and if the officer found evidence of intoxication to make an arrest, we don't deny that is a possibility.

But we do contest the right of the officers--

Unidentified Justice: --The law must be different in your state.

I thought the crime, a misdemeanor was committed not in the presence of a police officer.

You had to swear out a warrant.

Is that the law in Wisconsin?

Gordon B. Baldwin: --That is unquestionably the common law, Mr. Justice Marshall.

Unidentified Justice: My question is what is the law in Wisconsin?

Gordon B. Baldwin: I regret--

Unidentified Justice: Does the policeman on a story that somebody tells him have a right to go and lock up a man?

Is that the law in Wisconsin?

Gordon B. Baldwin: --The Wisconsin law apparently from the Wisconsin Supreme Court's opinion does not require that there be an in-presence offense in order to arrest for a misdemeanor.

The law was changed in 1971.

The legislative history is obscure, but prior to 1971--

Unidentified Justice: Does the law say he could break the door down?

Gordon B. Baldwin: --Absolutely not, sir.

There is nothing in the law saying you enter.

It is our contention that the exigent circumstances doctrine should not apply for a misdemeanor or minor offense.

Unidentified Justice: Mr. Baldwin, would you say that is true if the officer had personally observed your client behind the wheel and doing erratic driving and had observed all of the circumstances and had had to chase him to the house in an effort to apprehend him?

Could the officer have followed him inside to make the arrest in your view?

Gordon B. Baldwin: The answer I give to that, Justice O'Connor is no as long as it is a minor offense.

If an offense had occurred, for example failure to stay at the scene of an accident, far more serious and could even be a felony in the State of Wisconsin, then the case for a hot pursuit and entry would be permissible.

It is our belief that the bright line, if you will, is at the door of the house for a minor offense.

Unidentified Justice: Do you think it should make a difference from state to state as to how the state chooses to classify an offense?

In one state drunk driving might be made a felony and in another a misdemeanor.

Does it make any real differences for purposes of the Fourth Amendment?

Gordon B. Baldwin: Yes, Justice O'Connor, I believe it does for two reasons, and I think they are illustrated by the law of Wisconsin.

The first point is that reasonableness under Fourth Amendment standards requires a balancing of the actual governmental interest asserted to justify invasion.

What is the actual governmental interest?

That is determined by the legislature.

The legislature may view some offenses more seriously than other states balanced against the seriousness of the intrusion.

Here it is an intrusion into a highly protected place where expectations of privacy are greatest.

The second reason may be as in Wisconsin the state wishes to define reasonableness or define whether or not it has jurisdiction where an arrest has occurred under questionable circumstances.

Unidentified Justice: Well, it makes it very difficult, does it not, for an officer in a jurisdiction where it would be a misdemeanor if there had been no prior conviction but it would be a felony if there had and the officer does not know that and he does not know whether he has to stop at the door or not?

That strikes me as kind of a difficult line to be drawn.

Gordon B. Baldwin: It is a difficult line, but it is a difficult line because the legislature of Wisconsin has drafted its driving while intoxicated statutes in that particular way.

Unidentified Justice: Mr. Baldwin, I think the offense in Schmerber v. California was also a misdemeanor and yet the court there said that exigent circumstances existed for taking the sum from him by blood.

Gordon B. Baldwin: Justice Rehnquist, you are absolutely correct.

The charge in Schmerber was for a misdemeanor, but as I read Schmerber and I think it is in a footnote the underlying act could have been charged as a felony at the time by the arresting officer.

The second point is... Excuse me.

Unidentified Justice: So could it here.

Gordon B. Baldwin: So could it here?

Unidentified Justice: Yes, if he had known that he had a prior arrest.

Gordon B. Baldwin: If he had known there had been a prior arrest, then I would have to rely on the exigent circumstances doctrine and I could not make this assertion that the exigent circumstances doctrine should not apply to an arrest for a minor offense.

Unidentified Justice: Mr. Baldwin, could I ask you what were you complaining about when you appealed?

The reason your client had been hurt is that his driver's license had been revoked.

That is what you were really complaining about.

Gordon B. Baldwin: That is the--

Unidentified Justice: Is that not... So that the end result that you wanted to attain in the state courts was that the driver's license would be restored.

Gordon B. Baldwin: --That is correct, sir.

Unidentified Justice: Is the revocation procedure not a civil proceeding?

Gordon B. Baldwin: It is most certainly a civil proceeding.

Unidentified Justice: Well, have we ever applied the exclusionary rule to a civil proceeding?

Gordon B. Baldwin: This Court does not have to apply the exclusionary rule, Mr. Justice White.

Unidentified Justice: You want to say that the Fourth Amendment barred the use of this evidence?

Gordon B. Baldwin: The Fourth Amendment, Justice White--

Unidentified Justice: You want to say that this refusal and taking him down to the station was a fruit of an illegal entry and that is what your argument is.

That is a Fourth Amendment argument to save your driver's license in a civil proceeding.

I do not know of any cases where we--

Gordon B. Baldwin: --If I might correct, I think, Justice White, the problem is created by the law of Wisconsin.

The breathalyzer test cannot be administered under civil law of Wisconsin unless there has been a citation for the offense and an arrest.

Unidentified Justice: --I agree with you.

Gordon B. Baldwin: There must be an arrest.

Unidentified Justice: I agree with you, but nevertheless it is a civil proceeding.

Gordon B. Baldwin: The State of Wisconsin viewed this as a criminal-type proceeding.

The hearing judge who found that the refusal--

Unidentified Justice: I know but that cannot control the application of the Fourth Amendment.

I do not know why we have to decide this Fourth Amendment case if after we decided it the evidence would be admissible anyway because it is a civil proceeding.

Gordon B. Baldwin: --The State of Wisconsin applied Fourth Amendment standards, Mr. Justice White--

Unidentified Justice: I know they did, but the result is right.

Gordon B. Baldwin: --Well, there is a link proceeding here.

It is perfectly clear there is a link proceeding.

There is the charge of driving while intoxicated.

Unidentified Justice: You are not challenging... Were you convicted for it?

Gordon B. Baldwin: Subsequently.

It is not in the record, of course.

Unidentified Justice: Yes, but you are not challenging the criminal proceeding.

Gordon B. Baldwin: Not at this point.

Unidentified Justice: Whatever evidence was seized or not has not tainted or otherwise affected the criminal proceeding.

Gordon B. Baldwin: The Fourth Amendment, Mr. Justice White,--

Unidentified Justice: You are solely objecting to the cancelling your driver's license.

Gordon B. Baldwin: --Well, this Court has recognized that that is a serious interest.

The Fourth Amendment protects people, their places and effects from unreasonable searches and seizures.

It is not restricted simply to the protection of individuals in the criminal process.

Unidentified Justice: I agree with you, but we are talking about the exclusionary rule.

Gordon B. Baldwin: Mr. Justice White, the exclusionary rule is not invoked here for two reasons, first, because Wisconsin law does not permit the breathalyzer or the blood-alcohol test to commit evidence unless there has been an arrest.

That is Wisconsin rule.

It is not an exclusionary rule required by the Fourth.

It is an exclusionary rule required by the law of Wisconsin.

Unidentified Justice: But you are up here on Fourth Amendment grounds.

The Wisconsin Supreme Court has ruled against you on every conceivable state ground you could have so you must be here on a federal ground.

I, too, like Justice White had thought you were making a claim under the exclusionary rule of the Fourth Amendment.

Gordon B. Baldwin: It seems to me, Justice Rehnquist, that the issue here is the reasonableness of an arrest which is not a question of necessarily the introduction of the evidence.

It is the reasonableness of an arrest.

Unidentified Justice: You are not interested in that in the abstract are you?

You are interested in suppressing the evidence that arose out of the arrest.

Gordon B. Baldwin: The suppression rule was simply a product of the law of Wisconsin.

I am interested in the holding that this was a forbidden arrest under the Fourth Amendment.

Unidentified Justice: But that is an abstract proposition under the ruling of the Wisconsin Supreme Court because you say that the Wisconsin Supreme Court may have misinterpreted the Fourth Amendment law of arrest apparently but nonetheless ruled against you.

If you are not entitled as a matter of Fourth Amendment law to have the exclusionary rule brought over to a civil proceeding perhaps the Wisconsin Supreme Court opinion may have contained an abstractly wrong proposition of the federal Constitution but the result was right.

Gordon B. Baldwin: Well, the Wisconsin Supreme Court has construed an arrest as lawful under Fourth Amendment and Fourteenth Amendment standards.

It is what the Wisconsin Supreme Court has said about the arrest criteria is why we are here.

Unidentified Justice: But you have to be here because of something that is done about the criteria not because of what it said about it.

Gordon B. Baldwin: Well, the consequence, of course, of the lawful arrest was the loss of driving privileges and, of course, incidentally the introduction into evidence of the officer's testimony of what he saw in the bedroom in the criminal case which, of course, was force.

The exclusionary rule which is a product remedial device of the Fourth Amendment is not before this Court.

What is before this Court is the lawfulness of an arrest of the Defendant in his bedroom without consent and without warrant for a traffic offense not committed in the officer's presence.

If the exigent circumstances doctrine applies it is our belief that the facts do not justify its application here.

There is no risk of escape.

Edward Welsh was where he had every right to be in bed.

He had every right... The public interest is served perhaps by people who are sick or intoxicated going home to bed.

Secondly, there were no fire arms present nor any suggestion that any harm was going to occur to anyone.

There was no cry for help.

The case would be quite different if Officer Daley at the threshold had heard the noise of breaking crockery and a cry for help.

Unidentified Justice: Since you are speculating there, counsel, do you exclude the possibility that if not apprehended he might go out and drive his car immediately?

Gordon B. Baldwin: Well, his car was half a mile away, of course.

Unidentified Justice: He might decide that after getting a couple of aspirins and some coffee to go out and get the car and bring it home where it would be safe.

Gordon B. Baldwin: If he was sober, of course, that would be perfectly permissible.

The officers--

Unidentified Justice: He might not be, but he might think he was.

That happens.

Gordon B. Baldwin: --There are several alternatives that would have been less stringent than simply entering the house without establishing consent, one of which of course is to keep your eye on the car, iron boots or what have you.

The second possibility is one of the officer's could have gone for a warrant or called for a warrant.

There is no specific provision for a telephonic warrant in Wisconsin, but I read nothing in Wisconsin law that forbids the use of this innovative technique.

The trial judge suggested there were three policemen in the home.

Two could have watched the house.

One could have called for a warrant or went in pursuit of a warrant.

The only evidence that could be destroyed was that which was in the... excuse the expression... the lawful possession of the Defendant.

This is not contraband.

If he was intoxicated that evidence was not going to disappear instantly.

It takes a period of time.

The Wisconsin Supreme Court has allowed evidence of the blood-alcohol test to be introduced three and a half hours after an accident.

Unidentified Justice: I am not sure how you have distinguished Schmerber.

Gordon B. Baldwin: Well, excuse me.

Schmerber for two points, first, the underlying offense could have been far more serious in Schmerber.

Secondly, Schmerber was arrested at the hospital and the blood test was taken two hours after the event to be proven.

It seems to me the exigencies in Schmerber were far more serious than the exigencies in the Welsh case.

Unidentified Justice: Why should it make any difference that the offense in fact might have been prosecuted as a higher level offense than it was?

Is the critical thing not how the state in fact prosecuted it?

Gordon B. Baldwin: I think what the arresting officer knew, I submit, is important in establishing grounds for the arrest.

The penalty that the state assesses for a breach is relevant for two reasons.

First, the penalty helps us establish how the legislature has viewed the seriousness of the underlying offense, the more serious the offense the more severe the penalty.

Secondly, the common law which this Court has said on a number of occasions is instructive in determining what is reasonable under Fourth Amendment standards.

At common law as Justice Marshall has pointed out, arrests for misdemeanors require that they be in the presence of the officer.

I am not suggesting that that is the absolute rule that this Court should apply here--

Unidentified Justice: Schmerber is certainly against you on that point.

It was a misdemeanor prosecution and--

Gordon B. Baldwin: --He was arrested where the police had a right to be at the hospital two hours after the event under conditions where he might have received medical treatment or have been out of the custody of the police for a long period of time.

There was a real exigency is Schmerber.

In South Dakota v. Neville this Court indicated--

Unidentified Justice: --I did not think you thought that exigencies made any difference in misdemeanor cases.

Gordon B. Baldwin: --If the underlying arrest--

Unidentified Justice: Real ones make a difference?

Gordon B. Baldwin: --That is my fallback position, Justice White.

If it is a minor offense at the outset, I believe that the exigent circumstances doctrine does not apply to enter a home.

Schmerber did not apply any right to enter the home.

Schmerber was a blood test at the hospital two hours after the event to be proven under circumstances where there was no possibility of delay if the man was going to receive medical treatment and was going to be incommunicado and unavailable.

There would have been a greater intrusion had the police waited being treated in a hospital.

This is a case of the entry into the home.

As far as the police officer knew it was a first offense.

Even if the police had known it was a second offense it still is punishable by the balance of authority established in the State as a minor offense.

If reasonableness, and this Court has said many times in Terry, for example, in Camara, is a product of a balance of the consideration of the governmental interest asserted on the one hand and the severity of the invasion on the other, we submit that the governmental interest established by the Wisconsin legislature suggests that this is not the case for a significant dilution of the protection of one of the specific places and interests explicitly provided in the Fourth Amendment.

Lower courts have given us a number of different tests on exigent circumstances.

I urge this Court to look carefully at the California formulation which emphasizes urgency, which emphasizes the need for speed and emphasizes the need to protect immediately life and limb.

This, we submit, is not the kind of situation that fits the California definition of People v. Ramey.

The District of Columbia definition has been criticized by the academics as perhaps complicated, but the District of Columbia formulation which relies on seven factors I submit has some value because it is a response to the human problem.

How do we define its broad generalization?

Let's look at the specific facts.

Let's try to categorize the seven-factor formula of Dorman which we cite on page 43 of our brief has utility and while it is not a guide to the policeman what is a guide to the policeman is you do not enter a house at night for a minor offense without consent or without a warrant particularly if you have not seen the offender yourself.

I would like to reserve a few moments for rebuttal.

Chief Justice Warren E. Burger: Mr. Kleinmaier.

ORAL ARGUMENT OF STEPHEN W. KLEINMAIER, ESQ., ON BEHALF OF THE RESPONDENT

Stephen W. Kleinmaier: Mr. Chief Justice, and may it please the Court:

As indicated by the Petitioner the State in this case relies on the exigent circumstances doctrine which established the reasonableness of a warrantless entry under that doctrine the warrantless entry to arrest or to search that he made if the police possessed probable cause and exigent circumstances.

In this case the primary exigent circumstances relied upon by the state is the need to obtain evidence before it is lost.

The police were after Mr. Welsh to arrest him for drunk driving and as the Court has indicated in Schmerber in a case for drunk driving or intoxication offense the evidence will dissipate gradually in the blood and over a period of time will disappear.

Therefore, there was a need to immediately enter the home in order to obtain the evidence as soon as possible.

A delay that may have been occasioned by obtaining a warrant during a delay even if not all evidence of intoxication would have been lost there would have been a period of some dissipation of the alcohol.

It is just unknown how much would have been lost.

It is also important because there is no way until the police have contacted the suspect for them to know when he stopped drinking so he may have already stopped several hours before, still be intoxicated and by the time they get a warrant no longer be intoxicated.

Unidentified Justice: Mr. Kleinmaier, may I ask you a question?

I am just wondering if the case might possibly be moot.

Your adversary indicated the man has actually been convicted of the misdemeanor offense.

I gather that is a matter of public record if it is the fact.

Stephen W. Kleinmaier: That is what I understand.

Unidentified Justice: If that were true was his license automatically revoked as a result of that conviction?

Stephen W. Kleinmaier: I do not know what happened or what the judgment was.

The case as I understand it is on appeal and that case is pending in the Wisconsin Supreme Court waiting the outcome of this because he is also challenging the arrest in that case.

Unidentified Justice: I see.

Stephen W. Kleinmaier: I assume that any penalty imposed in that case would have been stayed pending the appeal, but that I do not know.

Unidentified Justice: I take it then he was convicted in the criminal case without the state using the evidence of the refusal to take the test.

Stephen W. Kleinmaier: I do not know what evidence was used.

Unidentified Justice: Because I wondered in reading this record really how badly you needed this evidence.

There is pretty strong evidence that he was intoxicated.

Does your exigency depend, I take it, on the fact that you really needed the evidence in order to prove your case?

Stephen W. Kleinmaier: Well, I think evidence of a breathalyzer or a blood test would have been a much better and much stronger case obviously than the evidence from Mr. Jablonic who observed him only for a couple minutes.

Unidentified Justice: That is not the only evidence you have.

He saw him drive, too.

Stephen W. Kleinmaier: Yes.

Unidentified Justice: He smelled his breath.

Stephen W. Kleinmaier: Well--

Unidentified Justice: It is a matter of... Go ahead.

Stephen W. Kleinmaier: --As the first argument pointed out there is some discrepancy as to what Mr. Jablonic saw.

He said one thing.

The police officer said that he recalled something else.

Unidentified Justice: He did not testify did he?

Stephen W. Kleinmaier: At this hearing... Well--

Unidentified Justice: Presumably he was available as a witness at the main trial.

Stephen W. Kleinmaier: --Yes, he did testify.

What happened was in the drunk driving case itself there was a suppression hearing challenging the arrest.

Mr. Jablonic testified.

Officer Daley testified.

Mrs. Welsh testified.

Then in the separate proceeding challenging the reasonableness of the refusal there was a question raised as to the arrest.

Unidentified Justice: Well, that is this proceeding.

Stephen W. Kleinmaier: That is this proceeding now.

All the parties and the court relied on the transcript and the findings from the drunk driving case to rule on the legality of the arrest for purposes of the reasonableness hearing.

Unidentified Justice: Do I correctly understand that if the arrest was unlawful whether for state reasons or federal reasons that as a matter of state law the refusal to take the test could not have been put into evidence if the arrest was unlawful?

Stephen W. Kleinmaier: In this proceeding where it is to revoke his license the police officer is not entitled to order him or request a breathalyzer unless he has first legally arrested him.

So I think there is a matter of state law.

The Wisconsin courts have taken a position that the legality of the arrest depends not only on satisfying Wisconsin arrest statutes but on satisfying Fourth Amendment requirements.

Unidentified Justice: So you agree that the Wisconsin Supreme Court was required to decide the federal constitutional question in order to dispose of the case?

Stephen W. Kleinmaier: I would like to be able to take the other position--

Unidentified Justice: But it would not be sound.

Stephen W. Kleinmaier: --I do not believe so.

I think the other one is that they incorporated the Fourth Amendment as one of their criteria in determining the legality of the arrest.

On the exigent circumstances I think another reason that--

Unidentified Justice: Before you go into the exigent circumstances is the inception of the concept of the exigent circumstances affected by the observations of the seriousness of his driving condition?

For example, the witness Jablonic I think his name was said he had undertaken to interfere with this fellow's driving apparently because he was afraid he was going to kill somebody.

Stephen W. Kleinmaier: --Yes.

Unidentified Justice: What impact does that have on the whole picture of exigent circumstances?

Stephen W. Kleinmaier: I think that would indicate that at least Mr. Jablonic was concerned that this person was quite intoxicated and that if he had returned to his car, stayed in his car and tried to drive it some more and gone back on the highway that in his condition there may have been an accident especially since Mr. Jablonic said he had seen the Petitioner go down the wrong lane, the left lane, and coming head on towards another car and at that point was able to veer off the left before an accident.

But I am sure he was afraid that if he continued to drive he may not be so lucky the next time which would indicate that they wanted to or at least Mr. Jablonic was concerned that something be done about his condition as soon as possible.

At this point I cannot recall that Mr. Jablonic expressed that same fear to the police officer at the time, however.

Unidentified Justice: The statement in your record is because I realized they would probably kill somebody and I immediately did thus and so.

Stephen W. Kleinmaier: That was Mr. Jablonic's testimony, yes.

I believe that is why he stopped his car to block the path of Mr. Welsh if he had tried to get his car out of this lot.

But primarily--

Unidentified Justice: Is that evidence available for a license cancellation proceeding?

Stephen W. Kleinmaier: --Well, Mr. Welsh's... Yes, in that his license could be suspended either through the reasonableness hearing for refusing the breathalyzer or as a result of his conviction for drunk driving.

Unidentified Justice: Just so I am clear on it I take it here the license was suspended because of the refusal of Mr. Welsh to take the breathalyzer or the blood alcohol.

Stephen W. Kleinmaier: In this proceeding here, yes.

Unidentified Justice: He asserted that his refusal was reasonable because the arrest was unlawful.

Stephen W. Kleinmaier: Yes, because--

Unidentified Justice: Under Wisconsin law if the arrest is unlawful is that treated as a reason for refusing to take the test?

Stephen W. Kleinmaier: --Well, the trial judges accepted that and the officer is not entitled to even request him to take a breathalyzer until he has arrested him in a valid arrest so that is a requirement before even asking for the breathalyzer.

Unidentified Justice: When the officer was at the door does the record show that he was aware of Mr. Jablonic's statement in detail that he was afraid the driver was going to kill somebody or was he just responding to the telephone warning that the lady had given?

Stephen W. Kleinmaier: No, Mr. Jablonic had stopped his car to block Mr. Welsh from moving his.

Another motorist stopped and Mr. Jablonic asked that motorist to call the police.

Presumably that person called the police because the police did receive a call.

A policeman responded to the call and went to talk first to Mr. Jablonic who then related some information to the police officer.

The police officer at that point also checked the license plate on the car to obtain some identification of the driver and at that point went to the address listed to that person.

So before he had gotten to he house he had talked to Mr. Jablonic.

This Court in another drunk driving case in a context of different issue has again recognized the need for obtaining evidence of intoxication as soon as possible.

In the Mackey v. Montrym case the Court said then in order for the State to protect people from drunk drivers the State has to have the authority to obtain a breathalyzer test for evidence of intoxication at the earliest possible moment.

Again, that is simply what this officer said he was trying to do.

That is why he went to the house and did not try to get a warrant.

I think the exigent circumstances prong of this to get into a house has been satisfied with a need to obtain this evidence.

The other prong is probable cause which in this case the Petitioner says is not a problem.

So under those two tests it would appear that the police were justified in going in the house.

However, as I understand Petitioner's objection now is that we cannot apply this exigent circumstances test because drunk driving was not a felony and was not a serious enough offense.

Our first response to that on this major-minor distinction is that drunk driving is a very serious offense.

This Court has in its own cases indicated the number of people that are killed on the highway each year due to drunk drivers.

Just looking at it that way I think drunk driving is a serious offense justifying action by the police.

Unidentified Justice: Is a first offense a crime?

Stephen W. Kleinmaier: In Wisconsin no.

I think that might be the only state where it is not.

Unidentified Justice: Does it suggest that your legislature may have created this problem?

Stephen W. Kleinmaier: Well, yes.

They created this question.

I think there is also... They have pointed out that they are still concerned about it enough that they authorized an arrest without a warrant.

I think the Petitioner's theory draws a big distinction between a felony and a misdemeanor and apparently in this case had the Wisconsin legislature really classified drunk driving as a felony we would not be here.

In other words, he is leaving it up to a legislative decision and if the State can act to justify this arrest simply by classifying this as a felony I think the State can also express its interest in this offense through its arrest laws because if we are only talking about reclassifying as a felony to justify the arrest I think the State can classify as a misdemeanor a forfeiture and in another chapter of the statutes authorize an arrest for misdemeanor or forfeiture on the basis of probable cause which Wisconsin has done.

It has passed statutes changing the arrest law from a common law.

Under the statutes the statute in the felony code... pardon me, the criminal code is that police officers may arrest for any crime if they have reasonable grounds to believe that the crime has been or is being committed.

Unidentified Justice: The only trouble with your argument is that your court does not agree with you.

Is that not right?

Stephen W. Kleinmaier: I do not understand how they do not agree.

Unidentified Justice: Well, I mean your court did not agree with what you just said in this case.

Stephen W. Kleinmaier: Well, in this case they said that the officers had probable cause to believe that the offense had been committed, and on the basis of that probable cause they were authorized to make the arrest.

In addition to the statute in the criminal code dealing with misdemeanors and felonies classifying together there is also the statute in the motor vehicle code--

Unidentified Justice: I could not get it out of that opinion.

I got it out of the dissent.

Stephen W. Kleinmaier: --Well, the issue presented to the Wisconsin Supreme Court was whether there were exigent circumstances and whether there was probable cause, and they found probable cause and exigent circumstances and with those two they made the arrest in the context of this case.

In the criminal code misdemeanors and felonies are treated together because they both fall within the definition of a crime.

The legislature has indicated that its interest is that the police have the same arrest authorities for a misdemeanor or for a felony.

In the motor vehicle code the statute provides that a law enforcement officer may make an arrest for a traffic regulation by a violation of traffic regulation if he has reasonable grounds to believe that a violation has occurred or is being committed.

It is parallel language so I think the legislature has indicated that it wants the arrest authority for its officers to be the same whether the case involves a forfeiture or misdemeanor or a felony.

I think it has expressed its concern that way as opposed to classifying this as a felony.

I think just because it gives a drunk driver a break by not calling it a felony does not necessarily mean that it is not interested enough that it wants to obtain convictions for this.

Unidentified Justice: It is not just giving them a break by not calling it a felony.

It also does not have the penalties associated with it that it would if it were a felony.

He cannot go to jail for as long and so forth.

Stephen W. Kleinmaier: That is correct.

But he is still getting a break by not having it classified that way and it is still a decision.

Unidentified Justice: But is it not true that the penalty that the state legislature seeks to impose is one of the ways we determine how important the state interest in the matter is?

Stephen W. Kleinmaier: That is correct.

It is one of the ways.

I think another way is looking at how--

Unidentified Justice: The procedure for arrest.

Stephen W. Kleinmaier: --Or enforcement of the laws.

Here I think they have indicated through their arrest law which they have made the same for traffic regulations as for crimes that they also want those regulations enforced just as strictly as crimes whether the crime be a misdemeanor or a felony.

Unidentified Justice: There are not other categories of misdemeanors that are so treated in Wisconsin for arrest purposes?

Stephen W. Kleinmaier: No, all crimes in Wisconsin whether it be misdemeanors or arrests or felonies are subject to arrest on probable cause.

There is no misdemeanor that has to be committed in the officer's presence to be subject to arrest just all misdemeanors are--

Unidentified Justice: In your mind is there a right of an officer to follow any misdemeanor offender into a home to make an arrest regardless of the nature of the misdemeanor?

Stephen W. Kleinmaier: --Well, he would have to have exigent circumstances to go with the probable cause.

I think you cannot simply because he has probable cause to believe a misdemeanor has occurred just as if a felony--

Unidentified Justice: Well, he had probable cause to believe someone has committed a misdemeanor offense and that the person is getting away and going into his home to avoid arrest.

Is that enough?

Stephen W. Kleinmaier: --I think he has to under the normal exigent circumstances it would require more than just think he is going into his house to avoid the arrest at that point.

If he--

Unidentified Justice: Does our Santana case not answer that in the affirmative?

Stephen W. Kleinmaier: --Yes, if the officer saw the offense being committed and merely followed a hot pursuit theory.

If a third party reports to the officer that a misdemeanor occurred two days before and just because the person is in the house the officer I do not think can walk in.

If he believed that the person was going to get an airplane within the next 15 minutes and fly to Alaska or to somewhere else then he has the other exigent circumstance of fearing the suspect is going to flee.

Unidentified Justice: Or if it were shooting birds out of season and he thought that they were going to be eaten in the next hour and a half they could go in and--

Stephen W. Kleinmaier: I think under that qualification it is a reasonable probability that it is going to occur.

He cannot just think of the possibility as a reasonable probability.

Unidentified Justice: --General, in Wisconsin is a police officer entitled to shoot a misdemeanor who is trying to run?

Stephen W. Kleinmaier: I just do not know the answer to that question.

I do not know if there is any statutory question--

Unidentified Justice: You said it was all the same.

Stephen W. Kleinmaier: --Well, as far as arrest authorities.

The other--

Unidentified Justice: Oh, this is limited to arrest.

Stephen W. Kleinmaier: --To arrest in the context of probable cause.

I think this Court as far as in what type of offenses an officer may enter a home to make an arrest for exigent circumstances has already indicated that the entry can be made in the case of something less than a felony.

I think in this case it also has to be recognized this case is not simply just a question of arrest.

The case involves obviously a question of search.

They needed to obtain evidence.

They were not going to arrest the evidence.

They searched coupled with arrest.

In the Camara case which we have heard a lot about this afternoon and have heard many times it involved a misdemeanor.

A violation of the building code in that case was a misdemeanor.

The court held that the building inspector normally needed a warrant to enter the home to check for the building code violation.

However, the court said that the entry could be made without a warrant if there was probable cause and an emergency existed.

I think in the emergency language in that case they are referring to the same thing as exigent circumstances.

Some of the cases cited in Camara for the emergency have also been cited in other cases under the heading of exigent circumstances.

The Camara case indicates that under the Fourth Amendment the police can enter a residence to search for evidence of a misdemeanor if they possess probable cause and exigent circumstances.

It is the same type of case as here.

Unidentified Justice: What if you had a building code violation and the police had the same degree of reliable evidence they had here but they were afraid the man was about to fix it, could they break into the house to arrest him before he fixed it because that would void the evidence?

Stephen W. Kleinmaier: Again, under the cases on exigent circumstances it is more than just speculation or fear by the police.

They are going to have to have I think a reasonable lead--

Unidentified Justice: Say they had fairly reliable evidence that that was about to happen as they did here.

We want to be sure to get a conviction.

Stephen W. Kleinmaier: --Building code violations I think are somewhat different in that usually you enforce the building code to cure the violation.

If the threat of violation is going to cause the person to cure the violation maybe it has already served its purpose.

Unidentified Justice: Well, of course, one might argue that keeping this man in bed might have been the best way to avoid the danger you are talking about.

Stephen W. Kleinmaier: However, when the police entered they did not know he was in bed.

Unidentified Justice: Well, anyway I gather that your position is that exigent circumstances satisfied sufficiently where there was possibility of disappearance of the alcohol.

Stephen W. Kleinmaier: That is correct.

Unidentified Justice: You do not think you have to rely on anything more than that do you?

Stephen W. Kleinmaier: Basically no.

I think that exigent circumstances doctrine applies; however, the legislature happened to classify the offense on this case.

I think that pretty well sums up the case also.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Baldwin.

ORAL ARGUMENT OF GORDON B. BALDWIN, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Gordon B. Baldwin: I would like to answer Justice Steven's question insofar as I have been informed by the principle counsel for Mr. Welsh.

He was convicted at a jury trial in early 1982 at which his refusal to take the blood test was in evidence which is permitted now under South Dakota v. Neville.

Secondly, Officer Daley testified as to what he saw in the bedroom and Mr. Jablonic testified.

Mr. Jablonic incidentally did not smell the errant driver's breath.

For one reason or another he did not smell it, but the jury did convict.

One of the jurymen was the wife of one of my law students, and this is one of the sources of my information.

Secondly, this Court has considered the problem of carnage on the highways in a number of instances, but I want to call your attention to and remind you of Craig v. Boren, an interesting case because of the way Justice Frennan dealt with the problem of statistics which Oklahoma had shown that there was a very high probability or a higher probability of drunken driving offenses committed by young men than by young women but that despite the statistical features which were really quite overwhelming it did not justify a deprivation of the Fourteenth Amendment claim to equal protection.

Similarly this Court in South Dakota v. Neville in a footnote indicated that perhaps the blood alcohol test would not have been appropriately taken or would not have been appropriately mentioned in the case if it had been forced upon the Defendant.

My point is that this Court has recognized that in the battle against drunk drivers there still are Fourteenth Amendment protections.

Similarly in Mincey v. Arizona this Court has declined to find a murder scene exception.

My final slogan and I think this is a helpful one is that exigency is not the same as expediency.

Thank you, Mr. Chief Justice.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until Tuesday next at 10:00.