Hot pursuit into the home of a DUI suspect - Wear

The Illinois Supreme Court just ruled on Wear -- a case where an officer followed a suspected drunk driver into a home.

Probable Cause
The Illinois Supreme Court ruled that the officer had PC to arrest based on the following --

1. The officer thought Wear was going about 40 mph in a 30 (just an estimate)

2. Wear drove at the officer, so the officer had to take evasive action. (The officer then turned on his lights.)

3. Wear did not use a turn signal.

4. Wear rolled through a stop sign.

5. When Wear got to the home, he drove onto the driveway. The officer told him to stop, but Wear ignored the officer's commands to stop -- stumbling, swaying and staggering into the house.

6 When Wear got into the house, he turned, faced the officer and said, "I'm home." The officer was close enough to him to smell the alcohol on his breath.

After a few moments the officer decided to enter the home and subsequently arrested Wear for DUI.

(The officer testified that he didn't think there was PC based on the above 6 factors.)

Exigency
The next question was (since the officer did not have a warrant) -- was the officer faced with an exigent circumstance.

The Supreme Court held that there were exigent circumstances in that the officer was in hot pursuit. Even though the crime was not a felony, it was "serious" enough to permit entry.

Therefore the summary suspension was upheld.

An interesting side note in this case is that since the officer simply wanted to conduct a stop of Wear, the Illinois Court of Appeals ruled that an officer can enter a home to in hot pursuit even if the officer only had reasonable suspicion. The Supreme Court refuted that ruling say that there is no way an officer can enter a home on reasonable suspicion that a suspect has committed a crime. It must be probable cause -- and the officer in this case clearly had probable cause even if the officer didn't think he did.

Best -

DA

New Case -- Seeking consent during a traffic stop

In my last blog I stated that the only limitation on an officer's ability to seek consent was time.

Officers in the past have assumed that the time issue can be defeated by simply telling the suspect that he is free to leave -- and then asking him some questions leading to a request for consent -- as it is presumed at that point there is no seizure.

I do not think think this will work in Illinois any more.

In People v Bernstein (6-28-08) an officer during a traffic stop asked Berstein to join him in the patrol car. The officer gave Bernstein a warning and then said something like -- "All righty, have a safe trip and nice day."

Immediately thereafter, before Bernstein exited the patrol car, the officer inquired whether Bernstein had anything illegal in his car. This question led to a request to search -- take a "quick look" into -- Bernstein's car.

The officer found drugs in the car.

The trial court ruled that the drugs were admissible as the conversation became a consensual encounter after the officer told Bernstein he was free to leave.

The Illinois Court of Appeals reversed stating, "We do not consider the officer's superficial termination of the traffic stop to have concluded it. The officer returned the documents and immediately began posing questions to Bernstein. The officer inserted his request to ask more questions in the 'seamless transition between mandatory and consensual interaction.' There was an insufficient passage of time or a perceivable shift in Blanks' authoritative stance such that a reasonable person in Bernstein's position would have recognized that the traffic stop had ended and a consensual encounter begun."

There are several other Illinois cases that have ruled that it is very difficult to return back to tier 1 (no seizure) from tier 2 (detention).

If you suspect that the traffic offender has something illegal, my suggestion is:
1. call for a back-up to help;
2. very early in the stop ask about illegal substances;
3. tell the suspect you are going to issue a warning;
4. ask for consent -- get it in writing if possible;
5. have your back-up search the car within 10 or 15 minutes of the stop.

The United States Supreme Court has stated that you must conduct your business within the time it takes to do a traffic stop (that's a good reason to get an officer to help you). Remember that as more an more defense attorneys will be trying to get their clients off on these rules.

Best -
DA