I respectfully dissent.
If the purpose of the Fourth Amendment’s prohibition of “unreasonable” searches and seizures is to safeguard the privacy and security of individuals against arbitrary invasions by government officials, respondent Hampton’s nonconsensual warrantless, forcible, nighttime arrest was assuredly unconstitutional. Upon review of the entire evidence adduced at the section 1538.51 suppression hearing, it is readily apparent that this court is presented with a seizure reasonable at its inception that became an unreasonable exercise of police discretion within the meaning of both the Fourth Amendment of the United States Constitution and article I, section 13 of the California Constitution. (Payton v. New York (1980) 445 U.S. 573, 586 [63 L.Ed.2d 639, 651, 100 S.Ct. 1371]; People v. Ramey (1976) 16 Cal.3d 267, 275-276 [127 Cal.Rptr. 629, 545 P.2d 1333].) Moreover, I am satisfied that this record clearly demonstrates that any asserted exigency or urgent necessity allegedly justifying Officer Eubanks’ ultimate decision to bypass the magistrate’s warrant foreseeably resulted from his arbitrary decision confining respondent to her own quarters.
For as long as memory serves me I have understood that characteristically our society affords the police officer “wide discretion on matters dealing with the daily lives of citizens. . . .”2 However, for several reasons Officer *38Eubanks’ decision initially not to formally arrest and jail respondent for driving while intoxicated I find to be unreasonable. His decision might, of course, be simply viewed as an example of the police officer’s “wide discretion” occurring daily which commonly escapes the judiciary’s scrutiny. However, such rationalization ignores that in this case the Fourth Amendment became relevant the moment Officer Eubanks decided to restrain respondent’s operation of her vehicle. “It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime—‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” (Terry v. Ohio (1967) 392 U.S. 1, at p. 16 [20 L.Ed.2d 889, at p. 903, 88 S.Ct. 1868].)
In this case there can be no question that Officer Eubanks’ investigative stop or “seizure” of respondent was at its inception objectively reasonable, i.e., the facts available to the officer at the moment of the vehicle stop resulting in respondent’s seizure would warrant a person of reasonable caution in the belief that the action taken was appropriate. It is also clear that thereafter he reasonably conducted his investigation generating probable cause to arrest for “drunk driving.” I hold that thereafter it was Officer Eubanks’ plain duty to place respondent under custodial arrest ushering her off to jail.
Technically he actually placed her under custodial arrest. At page 30 of the reporter’s transcript, Officer Eubanks testified that he originally stopped respondent at “04:37” a.m. and left her at her apartment at “. . . approximately 0500.” Further as to respondent’s status during that half hour, the officer testified, at line 20, “[s]he was in custody until 5:00 o’clock.” Clearly if, during that half hour, Officer Eubanks had conducted or authorized a full blown body or “jailhouse” search of respondent revealing the contraband cocaine, Fourth Amendment law would uphold the search and seizure as incident to lawful arrest. (United States v. Robinson (1973) 414 U.S. 218, 235 [38 L.Ed.2d 427, 440, 94 S.Ct. 467].) Section 834 defines in relevant part an “arrest” as simply “. . . taking a person into custody. ...” Section 849 commands a peace officer that an arrestee “shall, without unnecessary delay, be taken before the nearest or most accessible magis*39trate, if not otherwise released. ...” Section 849, subdivision (b) states the conditions under which a warrantless arrestee may be released by a peace officer short of “a trip to the station house.”3 From my reading of the statute it is clear that Officer Eubanks’ decision releasing respondent to be confined at her “house” until he returned her car keys after 8:00 o’clock was at best contrary to public policy as expressed by the Legislature.
At worst his decision to “give a break,” so to speak, to respondent violated her statutory right to be taken before the magistrate. I hold that his placement of respondent under house detention in order to sober up before he permitted her to drive to work in the morning was both constitutionally unreasonable and a violation of the statutory law of arrest. The only reason of record for not taking respondent to jail is that she was only “two blocks” from home when stopped. Clearly such reasoning does not satisfy the objectively reasonable or prudent person constitutional standard. I don’t question that Officer Eubanks was well-intentioned, but it is imperative that the facts underlying his failure to take respondent before the magistrate be judged by this court against an objective standard. For my part, I am unable to conceive a constitutional analysis justifying his action as either reasonable or lawful.
I don’t address the question as to whether respondent’s violation of the implicit terms of her own recognizance (O.R.) or house detention attenuated the taint of the officer’s “illegal” conduct so that her subsequent warrantless “house” arrest was not tainted “fruit of the poisonous tree.” I find it sufficient that in any Fourth Amendment analysis of the facts in this case it clearly appears that Officer Eubanks’ unreasonable, if not illegal, conduct must fairly be viewed as a concurrent, if not the efficient, cause of what my colleagues find to be “exigent circumstances.” (See maj. opn. at p. 30.) It was reasonably foreseeable to Officer Eubanks that respondent would not in *40fact retire as contemplated by him.4 In light of that foreseeability, I hold that on this record any claimed exigent circumstances excusing the warrant requirement, if suffered to be heard, is less than the real, genuine or bona fide emergency required by the constitutions, federal and state. “Where genuine exigencies exist, broad constitutional mandates often give way to the necessity for immediate action, and an arrest is no exception to this rule. But in the absence of a bona fide emergency, or consent to enter, police action in seizing the individual in the home must be preceded by the judicial authorization of an arrest warrant.” (People v. Ramey, supra, at p. 275.) It is my conclusion that Officer Eubanks’ assertion of exigent circumstances5 approaches if not contrivance or subterfuge, then certainly coverup.
*41I would affirm the order excluding the contraband cocaine seized in this case. Because “[t]he physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed” (United States v. United States District Court (1972) 407 U.S. 297, 313 [32 L.Ed.2d 752, 764, 92 S.Ct. 2125]); and because a ‘“basic principle of Fourth Amendment law[,]’ that searches and seizures inside a home without a warrant are presumptively unreasonable[,]” (Payton v. New York, supra, 445 U.S. at p. 586 [63 L.Ed.2d at p. 651]) “the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.” (See Welsh v. Wisconsin (1984) 466 U.S. 740, at pp. 749-750 [80 L.Ed.2d 732, 743, 104 S.Ct. 2091], cited in maj. opn. at p. 32.) It is settled that Fourth Amendment search and seizure law is essentially a case-by-case analysis. In the case at bench when all the facts known to Officer Eubanks are measured objectively, his claim of an extraordinary or emergency situation places the “police” in an incongruous and untenable posture from which to carry its “heavy” burden. “When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequence if he postponed action to get a warrant.” (Justice Jackson, concurring in McDonald v. United States (1948) 335 U.S. 451, at pp. 459-460 [93 L.Ed. 153, 161, 69 S.Ct. 191].) Here at bench, the “police” point to the consequence of losing evidence of blood alcohol level that fifteen minutes earlier they were unreasonably, and I think illegally, willing to have escape entirely the attention of the criminal justice system. I turn a deaf ear not only because the police’s *42predicament was foreseeably of his own making, but because “[t]he general need for and importance of a warrant, in regard to Fourth Amendment issues, is a doctrine of continuing and increasing vigor.” (Dorman v. United States (App. D.C. 1970) 435 F.2d 385, 390.)
My colleagues conclude that the warrantless entry was justified to prevent the dissipation or destruction of the alcohol level of respondent’s blood evidence. (See maj. opn. at p. 34.) I pointedly disagree because I read Welsh v. Wisconsin, supra, 466 U.S. 740 differently than does the majority. Actually my colleagues reach the same result as did Wisconsin’s Supreme Court in Welsh. In reversing the Wisconsin court, our highest court pointed out that even if "... the underlying facts support a finding of exigent circumstances, mere similarity to other cases involving the imminent destruction of evidence is not sufficient.” (Id., at p. 754 [80 L.Ed.2d at pp. 745-746] A claim of alcohol-blood level evidence then is not a talisman or “sure fire” litmus test for “exigency” but only one factor to be considered in warrantless search and seizure law analysis.6
An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. (Welsh, supra, 466 U.S. 740.) Consequently, “. . . a finding of exigent circumstance to justify a warrantless home entry should be severely restricted when only a minor offense is committed.” (Welsh, at p. 750 [80 L.Ed.2d at p. 744].)
Following what the “Burger” court in Welsh called a common sense approach, how then should driving while intoxicated be classified in the abstract in our state? It is a misdemeanor appearing in the Vehicle Code as an offense involving alcohol and drugs; but I agree that fact should not be the acid test. Our Legislature and consequently the courts have not treated the offense as being “grave.” A first time offender need not go to jail if he or she accepts probation and a 90-day partial limiting restriction on their license to drive. There are, of course, grave or very serious alcohol and drug related offenses; but they are felonies as was the case in People v. Keltie (1983) 148 Cal.App.3d 773 [196 Cal.Rptr. 243], citéd in the majority opinion at page 31,7 The Legislature then, may be viewed as classifying the first *43offense as a relatively minor one. But even a relatively minor offense may entail serious circumstances or consequences as we all too often painfully realize. I can only conclude that in the abstract a first offense of driving under the influence in this state is serious as is all crime; but presently it appears to be classified as relatively minor in the list of alcohol related driving offenses. In any case, again in the abstract, I would not think it serious enough on balance to outweigh the individual’s privacy and security interest afforded by our constitutions sufficient to toll the death knell for the Fourth Amendment’s warrant requirement. Manifestly, in the context of this case, the police, if Officer Eubanks is any judge, did not initially treat respondent’s misdeed as being serious.
My colleagues are not “activists” but they do take a “giant step.” I trail behind because (1) it is my view that whether the seriousness of the driving while intoxicated problem warrants a dimunition of California residents’ privacy and security rights when inside their “house” is a policy question for the people through its Legislature; and (2) recognizing that courts do set policy, this case is not the vehicle to bring about the change my colleagues have wrought.
This case, in my view, is a classic for the “exclusionary rule.” To exclude this evidence as illegally obtained is simply to announce and reaffirm that the police in the front line of the effort to maintain law and order have a duty to arrest indiscriminately upon reasonable or probable cause. Equality before the law by way of equal, indiscriminate enforcement and treatment is no less important or fundamental than any other constitutionally guaranteed right including due process. To exclude in this case deters the police conduct exhibited and maintains “the imperative of judicial integrity.” The cost to society is nil when compared to the benefit, i.e., respect for the criminal justice system. I would withhold the constitutional imprimatur and affirm the order suppressing the evidence. Respondent’s arrest only lacks a warrant to be lawful.
A petition for a rehearing was denied February 22, 1985. White, P. J., was of the opinion that the petition should be granted. Respondent’s petition for a hearing by the Supreme Court was denied April 18, 1985. Bird, C. J., Broussard, J., and Grodin, J., were of the opinion that the petition should be granted.
Unless otherwise designated all statutory references are to the California Penal Code.
“It is often overlooked that no public officials in the entire range of modern government are given such wide discretion on matters dealing with the daily lives of citizens as are police officers. In the broad terms of public administration, I think it would be a safe assumption that the scope of discretion enlarges as we look upward in the hierarchy of government. In other words, the higher the rank, the greater is the discretion. But this is not true in police work. The policeman on the beat, or in the patrol car, makes more decisions and exercises broader discretion affecting the daily lives of people, every day and to a greater extent, in many respects, than a judge will ordinarily exercise in a week. ...” Excerpted from 1981 FBI Academy graduation address by the Chief Justice of the United States, Warren E. Burger; see ABA Standards Relating to the Administration of Criminal Justice, Compilation page 8 (1984). See also 1 Crime and Justice, an Annual Review of Research (1979) edited by Howard Morris and Michael Tomey for nostalgic reading recalling the contribution of influential writers (including J. Goldstein 1960; LaFave 1965; and Davis 1969) during the neocivil rights struggle on the structural basis and seminal significance of police discretion. Sociologists R. Rumbant and E. Bittner at page 292 observed: “Indeed, the officer claimed even greater power than the magistrate, for the officer could exonerate solely on the basis of his own view of the facts and judgment, and without expía*38nation, while the judge could do so—in the very same case—only in accordance with rules of procedure and fact finding and in open court. As Goldstein, LaFave, and Davis saw it, the freedom to decide in police work resulted—in large part—from a variety of inadvertent and deliberate ambiguities and omissions in the way statutes and regulations are drafted, exacerbated by the absence of explicitly formulated law enforcement policies. Because of these shortcomings the police officer had to supply what—had it come from a more exalted functionary—would have been called jurisprudential policy. He had also to incorporate administrative considerations into his decision making from case to case.”
California Penal Code section 849 states: “(a) When an arrest is made without a warrant by a peace officer or private person, the person arrested, if not otherwise released, shall, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the offense is triable, and a complaint stating the charge against the arrested person shall be laid before such magistrate. [1] (b) Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever: [1] (1) He is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested. [5] (2) The person arrested was arrested for intoxication only, and no further proceedings are desirable. [1] (3) The person was arrested only for being under the influence of a narcotic, drug, or restricted dangerous drug and such person is delivered to a facility or hospital for treatment and no further proceedings are desirable. [1] Any record of arrest of a person released pursuant to paragraphs (1) and (3) of subdivision (b) shall include a record of release. Thereafter, such arrest shall not be deemed an arrest, but a detention only.” (See also Veh. Code, § 40302.)
Before assenting to Officer Eubanks’ offer, one that she couldn’t reasonably refuse, she left no room for doubting her intentions to return to the scene of the crime, so to speak. Predictably she would not rest until her sport car was safely and securely parked in its allotted parking stall. Officer Eubanks testified that although she had not told him what she was going to do, after 15 minutes had elapsed he decided “. . .to patrol the area to make sure that Miss Hampton had not left her apartment on foot to continue looking for her boyfriend.” His worst fears, of course, were soon to be realized. He testified that upon observing the vehicle leaving Dandy’s Market parking lot where it had been left unattended, he suspected she was again driving. Then, he realized, apparently for the first time, as he testified, “[t]here was a reasonable likelihood she could have a second key to the vehicle. She was very much intent on her vehicle being driven home and not being left at Dandy’s Market, for fear of being stolen. And she was very intent continue looking [s/c] for her boyfriend.”
Given Officer Eubanks’ demonstrated negligence in the line of duty, the fact that there is no likelihood of a civil action because respondent suffered no proximately caused damages only attests to the fact that someone upstairs looks out for all of us alike. Any juror or judge called upon to decide the cases we review on the criminal side of the docket realizes that the officer in this case unwittingly set the stage for a scenario wherein respondent could have been the victim of civil personal injuries, violent crime, or auto theft.
At the suppression hearing when questioned as to why he did not secure a warrant, Officer Eubanks testified as follows: “One is the evidence in drunk driving is blood alcohol level. To take the time to obtain an arrest warrant, the evidence would disappear, would be removed from the system of her body. [H] Another reason is that I felt that being that her hand was outside the door, that that constituted enough of her being outside that I wouldn’t need a search warrant, [t] Another reason was hot pursuit. I was immediately behind her. And that was indicated by her opening the door immediately after I knocked on it. [1] Another reason is that I felt if I turned around and walked away that it was more than likely that she would continue to get in her vehicle and drive. And her safety as well as safety of others would be, would be threatened by her driving around in this condition. ”
Apparently the majority would uphold this warrantless search on a theory of the facts that “respondent was actually placed under arrest while at the threshold, i.e., in a public place . . .” (see maj. opn. at p. 36) if the People had urged arrest in a public place to the court in the suppression hearing. It is my view that there is no question but that respondent was arrested in her private residence. Substantial evidence supports the trial court’s implied finding that Officer Eubanks entered her apartment in order to arrest her at a time when she was at the door but standing inside her apartment. The officer pointedly testified that only her “wrist and hand area were on the door frame . . . outside or exterior to the threshold.” He couldn’t remember which hand; the remaining hand was holding the door knob. He demonstrated through the use of a courtroom door. The demonstration is not described in the record. Presumably respondent’s door opened inward. With only one hand in the area of the door jamb, her feet were not on the threshold but inside her apartment. In any case *41the trial court’s order suppressing the evidence expressly finds that the officer entered “accompanied by an intent to arrest ...” albeit not a “known and clearly identified suspect.” We are required to uphold the court’s findings, express or implied, on review. (People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621].)
United States v. Santana (1976) 427 U.S. 38 [49 L.Ed.2d 300, 96 S.Ct. 2406], cited in the majority opinion at page 36, clearly, then, is not on point. Also we do not have under review a Noia v. Cozens (1973) 34 Cal.App.3d 691 [110 Cal.Rptr. 231] scene in which the vehicle driver is aware that he is being pursued by the officer. In the case at bench there is no evidence that Officer Eubanks flashed his high beams, blew his horn, or turned on his red lights as was the fact in Noia v. Cozens, supra. Noia was detained and arrested as he exited his garage, i.e., in a public place. The Attorney General’s expressed fears that to disapprove this warrantless entry to arrest would give “drunk drivers a license to flee to the safety of their home” is sheer nonsense. Noia could not avoid arrest by the simple expedient of staying in his garage or home once he failed to heed the officer’s signals to stop. Respondent, if the officer is to be believed, admitted she had moved her car; but, again, she was within her apartment and it is undisputed that Officer Eubanks did not alert her to his presence while he was driving from the market area to her home. We do not review a case of “hot pursuit” of a fleeing suspect.
Finally, Officer Eubanks’ subjective belief that respondent would operate her vehicle a third time I hold to be unreasonable. She had already given him one key; there was no reason to conclude that she would not turn over the other key. In any case, her precious sport car was now safe. Finally, the officer had summoned a “back-up” who could have posted the apartment while a warrant was secured. In the final analysis the attendant inconvenience to the police was of their own hand.
Recently at the 1984 annual California Bench/Bar Association convention, Professor Charles Whitebread, University of Southern California Law School, lecturing on Welsh v. Wisconsin, supra, 466 U.S. 740, pointed out that the “Burger” court greatly prefers case by case jurisprudence; that it does not like to announce its decisions and rules, and indeed, in police cases has been dismantling many of the rules we already have. And although the “Burger” court is not just willing but eager to accommodate the needs of legitimate and effective law enforcement, it is still a court that imposes “some limits” on the police, the police must have a “serious reason” to justify a warrantless entry. Professor Whitebread concludes “This court is pretty scrupulous about protecting the privacy of one’s own home. ”
Keltie was charged with: (count I) vehicular manslaughter in violation of Penal Code section 192, subdivision 3(a); (count II) felony hit and run in violation of Vehicle Code section 20001; and (count III) felony driving under the influence in violation of Vehicle Code section 23101.