police4aqi

Police, The Fourth Amendment, Qualified Immunity

Police officer allowed to warrantlessly break down door of suspected drunk driver

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Case: Cilman v. Reeves (4th Cir., unpublished, 11/4/2011)

What happened: Police officer followed suspected drunk driver (and the plaintiff in this civil suit), but did not catch up to him until he got into his house and locked the door. The police officer then called back-up and broke down the suspect´s door and arrested him on a drunk in public charge, but strangely not a DUI charge. Charge was dropped. Suspect/plaintiff sued. District court granted summary judgement on the fact that a Constitutional violation occurred, citing the famous (infamous?) Welsh case.

Decision: The police are not liable here because Welsh may not apply in jurisdictions where DUI is a misdemeanor (as in the present case), rather than an infraction (as in Welsh).

First comment: Because the drunk driving charge was never even leveled by police, let alone sustained by a prosecutor or grand jury, it is difficult to see how exigent circumstances existed at the time of forced entry. the police officer testified that he did not bring the charge because the suspect-plaintiff might have been drinking in his house. However, the police officer knew of this possibility before he entered the house with his back-up. If this possibility kept him from bringing a DUI charge, then it seems like it would have, by the same token extinguish exigency (or at least extinguish the probable cause that must legally accompany exigency, which is basically the same thing).

Second comment: No blood alcohol content number appears in the appellate court decision, and no mention is made of alcohol testing. However, the whole theory of DUI-as-an-exigent-circumstance is that the police need to get to the suspect in order to test the blood alcohol content in a timely manner. If the police really did not test ¨BAC¨ here then that would also contradict exigent circumstances.

Third comment: Plaintiff-suspect testified that police did not knock at the door, or request for him to come out after he went inside. The police officers testified that they did knock first. However, if the suspect is telling the truth and the police are lying, then his would also seem to a 4a violation.* It seems to me that anyone who is going to have their door broken down on suspected DUI should at least be given a chance to open the door first (even if there is a warrant, but most especially when there is not a warrant, as here). Accordingly, it seems like the appellate court should have remanded for fact-finding on that issue.

Fourth comment: [I deleted this Fourth Coment a couple of hours after it was posted — upon further reflection, this comment didn´t reflect my considered opinions about the case and its judicial disposition.]

Footnote(s):

* There are certainly exigent circumstances situations that would justify a failure to knock due to the nature of the exigency, but DUI-exigency (if such a thing even exists) would not be one of those situations.

Written by Burgers Allday

November 14, 2011 at 4:53 pm

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