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San Francisco DUI Lawyer - Entry of Dwelling w/o a Warrant/Consent

 Posted on June 29, 2010 in DUI

Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? My name is Paul Burglin and I am a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. I am also the co-author of "California Drunk Driving Law".

In this series of blog postings I am going to discuss search and seizure issues related to drunk driving cases. However, the totality of search and seizure law is perhaps as voluminous and complicated as drunk driving (DUI) law.

Today's Post: DETENTION AND ARREST | Seizure of a Person | Entry of Dwelling Without a Warrant |Consent

The warrantless entry into a home to arrest someone is an unreasonable seizure in violation of the Fourth Amendment to the United States Constitution absent probable cause and an exigent circumstance. Payton v. New York (1980) 445 U.S. 573, 589-590. Thus, absent some exception to the warrant requirement, if there is time for the constable to obtain a warrant then it must be obtained. The following discussion concerns various exceptions to the warrant requirement.

Hot Pursuit

Several California decisions have upheld the warrantless arrest of a DUI suspect where the act of driving was observed by the police and they entered his residence in “hot pursuit.” See People v. Hampton (1985) 164 Cal.App.3d 27 (A short time after the arresting officer told the defendant not to drive, he saw a car like hers pull into her garage. He feared that she would drive again, having once done so after being warned); and People v. Lavoyne L.M. (1990) 221 Cal.App.3d 154 (arrest in the defendant’s home for traffic infractions and driving without a license followed a hot pursuit that began in a public place).

However, the “hot pursuit” exception was rejected in People v. Keltie (1983) 148 Cal.App.3d 773, even though the offense was vehicular manslaughter. It noted that the “hot pursuit” exception to the search warrant requirement is based on “[t]he necessity to forestall imminent escape of a suspect...[and] applies in situations where the delay occasioned by obtaining a warrant would permit the escape of a suspect in a ‘grave offense’ who remains ‘dangerous to life and limb.’ (People v. Escudero (1979) 23 Cal.3d 800; People v. Smith (1966) 63 Cal.2d 779, 797.) It does not apply where the suspect poses no imminent danger if allowed to temporarily remain at large. (James v. Superior Court (1978) 87 Cal.App.3d 985.)” Id., at 779. The holding is dicta, however, since the Keltie Court found the dissipation of blood-alcohol evidence to be an exigent circumstance justifying the warrantless entry into the home our next blog posting for a further discussion on the “loss of evidence” exception to the warrant requirement.

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