Last week I discuss a hypothetical, but realistic, scenario where our driver, Dave, hit a neighbor’s car on the way home after enjoying an afternoon barbeque with friends. Dave had had a few beers so he worried that if he stopped and reported the accident, he might also end up with a DUI.I wouldn’t advise anyone to do what Dave did, but he decided to drive home and avoid the consequences.

Unfortunately for Dave, his neighbor, Millicent, witnessed Dave backing up and driving off after he hit the car. When she saw the damage done to the car and believing she recognized Dave as the culprit, she called the police. When the police arrive, Dave runs upstairs and his wife answered the door. She denied any knowledge of the accident even though there was damage to their car now parked in their driveway that was consistent with the neighbor’s report. Dave’s wife even went so far in her attempts to protect her husband to say that she had just brought the car home after running errands. She denied the police request to search the house. The police, believing that Dave was inside, searched anyway and found Dave. Dave was arrested and later charged with DUI, hit and run, evading arrest, and DUI test refusal. Dave might be in trouble… or maybe not.

If the search of Dave’s house without an arrest was unlawful, the evidence obtained subsequent to the arrest must be suppressed. If the evidence is suppressed, there is no case against him. (The hit and run might survive but the other charges would not.) Was the search unlawful?

The prosecution will certainly argue that the search of Dave’s house without a warrant was lawful based on the exception known as “exigent circumstance.” This exception allows a warrantless search if the police can establish that they had probable cause to believe that evidence of the crime will be found during the search and that without immediately securing that evidence, it may be destroyed. In the search of Dave’s house, the prosecution might argue that they had probable cause to believe Dave hit the neighbor’s car and that he had been drinking when he did so. If they had to take the time to get a search warrant, they might argue, his BAC would dissipate and the evidence that he had been drinking would be lost. Now you might observe that this is a stretch. Why would the police have probable cause to believe Dave and been drinking (and driving)? They might argue that the neighbor’s observations coupled with his evasion strongly suggest he had something more to hide than just accidently causing a dent in his neighbor’s car.

If the prosecution makes this argument, the motion to suppress may very well be granted. Why? Well, to begin with, the officers’ claim of probable cause to believe Dave had been drinking (and therefore there were exigent reasons for the search, i.e. to preserved that evidence) is very weak. The Ninth Circuit considered a case with similar facts and held that the claim of a witness (here, neighbor Millicent) is not enough; the police have a duty to further investigate before establishing probable cause. Furthermore, the if the police base their probable cause on a suspicion that Dave had been drinking and they had no other evidence to corroborate that, they have not established probable cause. Probable cause requires that the facts known to the police officers “are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” (Ornelas v. United States,517 U.S. 690, 696 (1996.)

Oh, but not so fast. As the courts often do, the California Supreme Court came to a different conclusion. That court held that it is lawful for the police to conduct a warrantless search in a person’s home to investigate misdemeanor drunk driving. The Ninth Circuit’s opinion was not altered by that conclusion and given that it is a higher court, Dave still has a good defense.

The prosecution might still have another “trick” up its sleeve by arguing that the warrantless search was conducted under the emergency exception. Under that exception, the police in their “community caretaker” role may conduct a warrantless search in an emergency situation where they have “reasonable grounds” to believe there is an immediate medical emergency. Those grounds must be objectively reasonable. The police could claim that because they had reason to believe Dave was involved in a vehicle accident, he may be injured. This argument is even weaker than the exigent circumstances argument but the prosecution often pulls this one out of their hat.

Dave may still face the hit and run charges and perhaps an evading arrest charge, but his DUI charges are likely to be dismissed.

But the truth is, trial courts don’t always make the obvious decision. Sometimes even when an argument on a motion to suppress looks airtight, the court denies it. If the court decides that the search was lawful, an ancillary question is: Can the police arrest Dave for misdemeanor DUI if they did not see him driving? Generally, an officer cannot arrest someone on a misdemeanor charge unless they witness the crime. But as we shall learn in next week’s post, there are many exceptions to that law.

Orange County DUI defense attorney William Weinberg has been defending individuals charged with DUI or DUI-related offenses for 25 years. He is passionate about preserving his clients’ rights. You may contact him for a complimentary consultation by calling him at his Irvine office, 949-474-8008, or by emailing him at bill@williamweinberg.com.

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