NUMBER: 2006-12 DATE: 06-02-06 BY: Devallis Rutledge TOPIC: DUI Exigent Entry
ISSUE: Can police make a warrantless entry into a residence to arrest a suspect based on citizen reports of DUI that just occurred?
In Welsh v. Wisconsin (1984) 466 US 740, the US Supreme Court ruled that the Fourth Amendment was violated when an officer made a warrantless entry into a residence to arrest a DUI suspect, where the offense was subject only to a civil forfeiture of $200. The decision considered the significant factors in assessing claims of exigent entry to be "the gravity of the underlying offense" and "the penalty that may attach" under state law. Id., at 753-54, fn. 14.
Unlike Wisconsin, California treats DUI as a criminal offense, subject to fines and mandatory incarceration. This distinction was relied on by the California Supreme Court to find that a warrantless entry to arrest a recent DUI suspect did not violate the Fourth Amendment.
A citizen reported Daniel Thompson to be DUI, and police traced him to his house. When Thompson staggered out the back door while an officer sought entry at the front, the officer motioned for him to return, which he did. Based on objective symptoms, vehicle match, suspect description from the citizen, and the citizen's account of Thompson's dangerous and erratic driving, the officer stepped inside and arrested him. Thompson's suppression motion was denied by the trial court, but the Court of Appeal, though agreeing that there was PC to arrest, ruled that the entry violated the holding of Welsh, and reversed. The state appealed.
Reversing the Court of Appeal, the California Supreme Court agreed with the state's contention that California's more stringent penalties for DUI made Welsh inapplicable, and that entry was permissible based on the exigent circumstance of the need to prevent the imminent destruction of evidence. Because delay to secure a warrant would allow absorption and metabolism to reduce Thompson's BAC or give him an opportunity to corrupt a test by continuing to drink, "it was reasonable for the police to enter the home without a warrant in order to arrest defendant and thereby prevent the imminent destruction of evidence." People v. Thompson (2006) ___ Cal.4th ___ , WL 1492431, DJDAR 6776.
The court cautioned that it was not holding "that the police may enter a home without a warrant to effect an arrest of a DUI suspect in every case." Important factors here were the fresh citizen report of dangerous driving; prompt arrival of police while the hood of the suspect vehicle was still warm; Thompson's matching description, evasive conduct and evident symptoms; and minimal intrusion into the home to make the arrest.
See also, People v. Hampton (1985) 164 Cal.App.3d 27, which also distinguished Welsh, finding an exigent need to enter and arrest a DUI suspect where there were reasons to believe that she intended to resume driving once police were gone.
BOTTOM LINE: A citizen report of recent DUI may permit reasonably contemporaneous, warrantless entry of a residence apparently occupied by the suspect, to make an arrest and prevent the imminent destruction of evidence.
NUMBER: 2006-16 DATE: 06-22-06 BY: Devallis Rutledge TOPIC: Duress Defense
ISSUE: What is the burden of proof when a defendant asserts a defense of duress?
Penal Code § 26 sets forth six categories of persons who are not "capable of committing crimes," including those who act under duress. When this affirmative defense is raised, who has to prove what, and by how much?
"Except for subdivision One [children under 14], all of the subdivisions of section 26 created affirmative defenses; that is, they place on the defendant the burden of establishing facts essential to the defense." In re Manuel L. (1994) 7 Cal.4th 229, 243.
"To establish duress a defendant would have to show that he had (1) an actual belief his life was threatened and (2) a reasonable cause for such belief. Because of the immediacy requirement, a person committing a crime under duress has only the choice of imminent death or executing the requested crime." People v. Condley (1977) 69 Cal.App.3d 999, 1012.
"Because the defense of duress requires a reasonable belief that threats to the defendant's life (or that of another) are both imminent and immediate at the time the crime is committed, threats of future danger are inadequate to support the defense." People v. Coffman and Marlow (2005) 34 Cal.4th 1, 100.
"With respect to many defenses...a defendant has been required merely to raise a reasonable doubt as to the underlying facts....[i]nclud[ing]...the defense of duress...." People v. Mower (2002) 28 Cal.4th 457, 479, fn. 7.
"...the accused need only raise a reasonable doubt as to the existence or nonexistence of the fact in issue....Among such defensive assertions could be an accused's contention that the crime was committed under duress or compulsion." People v. Tewksbury (1976) 15 Cal.3d 953, 963, fn. 9.
The court must instruct on the burden of proof (Evidence Code § 502), but need only give a duress instruction if substantial evidence supports the defense. People v. Vieira (2005) 35 Cal.4th 264, 290.
► A recent US Supreme Court decision held that in a federal prosecution, it was not error for the trial court to instruct that the defendant bore the burden of proving duress by a preponderance of evidence. Dixon v. US (2006) 548 US ___ , WL 1698998. Dixon argued that requiring her to prove an affirmative defense deprived her of due process, but the court "found no constitutional basis for placing upon the Government the burden of disproving petitioner's duress defense beyond a reasonable doubt...."
Dixon compels no change in California law on this issue, since state courts have applied only California statutes (Evidence Code § 501; PC §§ 26, 1096) in defining the defendant's lower burden of proof in state cases, as the state may constitutionally do. People v. Leahy (1994) 8 Cal.4th 587, 597.
BOTTOM LINE: A California defendant asserting a defense of necessity bears the burden of establishing facts supporting a claim that reasonably-perceived, imminent, life-threatening compulsion to commit the charged crime raises a reasonable doubt of capacity to be adjudged guilty.
NUMBER: 2006-17 DATE: 06-27-06 BY: Devallis Rutledge TOPIC: DUI Stop on Anonymous Tip
ISSUE: May police make a vehicle stop on the basis of an anonymous telephone tip of a suspected DUI?
In Florida v. J.L. (2000) 529 US 266, the US Supreme Court ruled that an anonymous tip of a described pedestrian with a concealed handgun at a bus stop did not provide reasonable suspicion for a ped stop and weapons frisk, absent police corroboration of the criminality aspect of the tip. Does this ruling bar officers from making a vehicle stop where an anonymous caller reports a possible DUI and the officer sees no erratic driving before making the stop?
A nighttime anonymous call to the CHP reported a northbound blue van on Highway 99 in Kern County near Airport Drive "weaving all over the roadway." Within two to three minutes, a nearby CHP officer saw a blue van traveling northbound on Highway 99 past Airport Drive, and though he saw no erratic driving, he immediately stopped the van. Following investigation, driver Susan Wells was arrested for DUI. Her urine sample contained THC, cocaine and opiates, and her vehicle contained heroin and syringes. She unsuccessfully moved to suppress the evidence and subsequently appealed on the ground that her detention violated the Fourth Amendment, as construed in J.L.
The California Supreme Court affirmed (4-3). The majority distinguished J.L. on several grounds, including the grave danger of DUI, the apparently-contemporaneous call from an eyewitness, the lower level of intrusion inherent in traffic stops as compared with a weapons frisk, and the accuracy of the caller's tip as corroborated by the officer's observations.
The court pointed out that the decision in J.L. had left open the possibility of a different ruling if the anonymous tip concerned a greater public safety threat than an armed individual, such as a person carrying a bomb:
"Indeed, a drunk driver is not at all unlike a 'bomb,' and a readily mobile one at that....[A] report of a possibly intoxicated highway driver, 'weaving all over the roadway,' poses a far more grave and immediate risk than a report of mere passive gun possession. Police officers undoubtedly would be severely criticized for failing to stop and investigate a reported drunk driver if an accident subsequently occurred.
"Viewing the totality of the circumstances in the present case, we are convinced that the officer's traffic stop was justified by reasonable suspicion of criminal activity."
People v. Wells (2006) ___ Cal. ___ , WL 1726460, DJDAR 8181
► The court cautioned police officers and dispatchers that "in future incidents" they should endeavor "to gather more information to assess the reliability of 911 calls reporting criminal activity." If the caller's number is not captured by telephone equipment, the official who receives the call should try to get a name and phone number, and should ask the tipster, "How do you know this?"
BOTTOM LINE: Where observations corroborate the accuracy of details of an apparently-contemporaneous anonymous tip of a suspected DUI driver, an officer has reasonable suspicion to make a vehicle stop to investigate.
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