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ILLINOIS SUPREME COURT EXTENDS “HOT PURSUIT” DOCTRINE TO INCLUDE MISDEMEANORS

By Ashley Kwasneski

In People v. Wear, 2008 WL 2840571 (Ill.Sup.Ct. 2008), the Illinois Supreme Court upheld the defendant’s driving under the influence conviction finding that probable cause existed to place him under arrest while the defendant was still in a public place and that the defendant’s subsequent arrest inside his home was justified by the “hot pursuit” doctrine. In Wear, the Officer Christopher Dawdy from Greene County, Illinois, arrested and charged Wear with driving under the influence. The circuit court of Greene County, at the hearing on defendant’s petition to rescind statutory summary suspension, found no reasonable grounds to arrest Wear. The appellate court reversed, finding that: (1) Officer Dawdy had probable cause to arrest Wear; and (2) that Officer Dawdy’s warrantless entry into the private residence to arrest Wear was excused under the “hot pursuit” doctrine.

The Illinois Supreme Court outlined the extensive facts of the case in its decision. In summation, on January 2, 2006, at approximately 12:52 am, Officer Dawdy observed a white Cadillac driving at what appeared to be a high rate of speed. Upon following the vehicle, he further observed the vehicle make a “wide right” onto another street without using a turn signal, and that at this point, he activated his rotator lights to pull the vehicle over. Id. at *2. Officer Dawdy testified that the vehicle continued to drive approximately five or six blocks, still swaying within the roadway and that the vehicle rolled through a stop sign. Id. He further stated that the Cadillac finally pulled into a driveway and Wear exited the vehicle. Id. The Illinois Supreme Court relied on Officer Dawdy’s testimony that Wear stumbled and swayed up the driveway and that Officer Dawdy told him repeatedly to get back in the vehicle and that when Wear got into the doorway, he replied that he (Wear) had made it home. Id. at *3. Officer Dawdy testified he detected an odor of alcohol coming from Wear’s breath outside the home and that he followed Wear into the private residence. Id. Subseqently, Officer Dawdy placed Wear under arrest for driving under the influence.

The Illinois Supreme Court relied the totality of the circumstances, as outlined by People v. Love, 199 Ill.2d 269, 279 (2002), to determine that probable cause existed to arrest Wear prior to Wear entering the private residence. The Court pointed to the testimony from Officer Dawdy concerning Wear’s driving and found that Wear’s repeated statements “I made it home” coupled with his stumbling and odor of alcohol ripened reasonable suspicion into probable cause to arrest Wear for driving under the influence. Wear, 2008 WL 2840571 at *10.

As the Court pointed out, however, probable cause to arrest a defendant is not enough to enter a private dwelling under the Fourth Amendment. The Court stated, “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.” Id. at *12. Ultimately, the Court relied on United States v. Santana, 427 U.S. 38 (1976) to find that in this case, like Santana, since the officer had probable cause to arrest the defendant while the defendant was standing in the doorway of the home, the doctrine of “hot pursuit” allowed the officers entry into the home absent a warrant when the defendant retreated into the home.

As Justice Burke pointed out, in concurrence, Santana is different because it involved hot pursuit of a fleeing felon, whereas in this case, the defendant was charged with a misdemeanor. Burke cited Welsh v. Wisconsin, 466 U.S. 740 (1984), to demonstrate the limitation of Santana to felony cases only and argued that the Court must look at the totality of the circumstances to determine whether the officer’s conduct in entering the home was reasonable. In Welsh, the United States Supreme Court stated that when determining whether exigency exists, one must consider the gravity of the offense, and found that Wisconsin’s fine-only penalty for a first time DUI was insufficient to demonstrate exigency. In this case, however, the Court held that since a first DUI in Illinois is a Class A misdemeanor punishable by up to 364 days in jail, the State has a high interest in punishing these offenses and for that reason, Welsh is not controlling.

While this case deals with the offense of driving under the influence, the Court’s decision seems to indicate that it would find exigency in all Class A misdemeanors under the “hot pursuit” doctrine based on Illinois’ punishment for Class A misdemeanors of up to 364 days in jail. Although the United States Supreme Court does not limit the “hot pursuit” doctrine to felonies, it does find that in cases of minor offenses, exigency to enter a private dwelling should rarely be found. Welsh, 466 U.S. at 753. It appears, then, that the Illinois Supreme Court has found that at least DUIs, if not all Class A misdemeanors, are not minor offenses.

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