Gravity of the Offense

Gravity of the Offense

The two hot-pursuit cases above can leave the impression that a chase, or a crime serious enough to make officers hurry, opens any door. Welsh v. Wisconsin corrects that impression by showing how much the exception depends on what the police are chasing someone for. The starting point is the baseline rule for every home entry: a warrantless search or seizure inside a home is presumptively unreasonable, and the government bears the burden of proving that exigent circumstances justified it.¹ The Court repeated that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed," and it treated the warrant requirement as the principal protection against unnecessary intrusions into private dwellings.² Because a generous reading of any exception would hollow out that protection, exigent circumstances are drawn narrowly, which means the officers must point to facts showing that waiting for a magistrate was unsafe or futile.³

The facts show how slight the underlying offense was. On a rainy night in April 1978 a witness, Randy Jablonic, watched a car veer from side to side before it swerved off the road and stopped in an open field, where it damaged no person or property. He blocked the car with his truck and asked a passerby to call the police, but the driver got out, asked Jablonic for a ride home, and walked away when Jablonic suggested waiting for help.⁴ The police arrived a few minutes later and heard that the driver seemed either very drunk or very sick. The registration led them to Edward Welsh, who lived nearby, and around 9 p.m. they went to his house, entered without a warrant after his stepdaughter answered the door, and arrested him in bed for driving under the influence.⁵ For a first offense, Wisconsin treated the violation as a civil matter punishable only by a fine, so Welsh faced no possible jail term.⁶

The Wisconsin Supreme Court upheld the entry by relying on three claimed exigencies: hot pursuit of a suspect, the need to prevent physical harm to the offender and the public, and the need to prevent destruction of evidence.⁷ Each is a recognized basis for entering a home without a warrant in other settings, and the sections that follow take them up in turn. Welsh is useful here because it tests all three against an offense of little weight, and none of them carried the entry.

The hot-pursuit claim failed because the doctrine requires immediate and continuous pursuit from the scene of the crime.⁸ In Warden v. Hayden cab drivers followed an armed robber to a house and the police arrived moments later, so the trail had never gone cold.⁹ No one pursued the driver in Welsh. He left the field on foot before the police arrived, he was already at home when they came, and they found him by checking a registration. A trail rebuilt from paperwork is an investigation, and nothing about it suggested that the suspect would slip away in the next few minutes unless the officers entered at once.

The public-safety claim fails on similar logic, because a justification of that kind has to rest on a danger that still exists when the officers enter.¹⁰ The danger the driver had posed was on the road, and it ended when the car came to rest in the field with Jablonic's truck behind it. By the time the officers reached the house the car was abandoned and its owner was in bed, so entering the home removed no remaining threat.

The last claim was that blood-alcohol evidence would dissipate while the police sought a warrant. That risk exists, but it has to be weighed against the offense, and under Wisconsin law the offense carried only a civil fine. A warrantless home arrest therefore could not be sustained merely because evidence of intoxication might fade before a warrant could issue.¹¹ Students lose this issue when they treat evidence that might dissipate as an exigency standing alone, because the weight of that claim depends on how serious the offense is, and for a minor offense the weight is slight.

All three failures trace to one idea. The gravity of the offense is an important factor in deciding whether an exigency exists, and a minor offense weighs heavily against finding one.¹² The reasoning is a matter of proportion. Every exigency theory describes a cost of delay, whether a suspect escapes, evidence disappears, or someone is hurt, and that cost counts for something only in light of what the delay puts at risk. When the offense is minor, little is lost if the arrest waits for a warrant, while the privacy of the home, the interest the Fourth Amendment protects most, is lost the moment the officers walk in. The state's own classification also measures how much it cares about the offense: a legislature that makes a first offense a civil forfeiture with no jail time has told the court how little urgency attaches to enforcing it.¹³ Frequency supplies a further reason. Minor offenses are the most common ones, so if a minor offense plus some risk of lost evidence were enough, the exception would swallow the warrant requirement in the very cases where officers most often invoke it.

Placing Hayden beside Welsh isolates the variable. In Hayden the offense was an armed robbery and the pursuit was immediate, so gravity supported the entry; in Welsh the pursuit was missing and the offense was slight, so gravity undercut it. A short invented twin shows the same variable moving the other way within a traffic setting.

The rule that results is a matter of weight rather than a rigid bar. Gravity is an important factor, a minor offense weighs heavily against exigency, and a warrantless home arrest for such an offense will rarely be justified, but the wording to carry into an exam is "heavily" and "rarely" rather than "never." Lange v. California applies the same totality approach to flight. An officer tried to stop a driver for excessive noise, the driver pulled into his driveway and garage, and the officer followed him in and arrested him for drunk driving.¹⁴ The Court rejected the idea that every flight by a misdemeanant is an emergency. When the totality of circumstances shows imminent harm to others, a threat to the officer, destruction of evidence, or escape from the home, police may act without waiting, and the flight itself counts among those circumstances.¹⁵ Lange and Welsh thus point the same way: the nature of the crime and the nature of the flight are weighed together, and neither alone settles the question.

The edge of the rule is contested. Two Justices dissented in Welsh, reasoning that the dissipation of blood-alcohol evidence justified the entry and that gravity, as labeled by the state, should not control the outcome.¹⁶ The same tension returned in Illinois v. McArthur, where officers with probable cause to think a man had hidden marijuana in his trailer kept him from entering it unaccompanied for about two hours while they obtained a warrant, and the charges were misdemeanors.¹⁷ The Court held that the officers acted reasonably, and a dissent relying on Welsh argued that a minor offense tips the balance toward the home.¹⁸ Gravity therefore keeps reappearing as a weight on the scale in the evidence-destruction and temporary-seizure sections ahead, while the next section turns from catching suspects to protecting people, where the question is whether someone inside needs immediate help.