specially concurring:
I agree with the majority that, based on defendant’s driving, Officer Dawdy had reasonable suspicion that defendant was driving while under the influence of alcohol when the officer approached the Foiles residence. Further, I agree that Officer Dawdy’s reasonable suspicion ripened into probable cause to arrest for DUI prior to the time that Dawdy crossed the threshold into the Foiles residence. I also agree that under the circumstances of this case, Officer Dawdy entered the residence in “hot pursuit” of the defendant. However, I do not believe that a police officer’s warrantless entry into a dwelling may be justified on the basis of “hot pursuit” without regard to the seriousness of the crime for which the person is being pursued. Moreover, even when exigent circumstances, such as “hot pursuit,” exist to provide a basis for dispensing with the warrant requirement, the reasonableness of the officer’s nonconsensual entry into a private residence, for fourth amendment purposes, depends on the totality of the circumstances. Thus, while I agree with the ultimate result reached by the majority, and therefore concur in its judgment, I disagree with the court’s analysis and write separately.
ANALYSIS
The case at bar provides this court its first opportunity to consider whether “hot pursuit” is an exigency which justifies a warrantless, nonconsensual entry into a home to effectuate an arrest for a nonfelony offense. The majority fails to acknowledge this fact and simply finds that “hot pursuit” justified the warrantless arrest in the case at bar. The majority relies almost exclusively on the Supreme Court decision in United States v. Santana, 427 U.S. 38, 49 L. Ed. 2d 300, 96 S. Ct. 2406 (1976), stating, “we see little relevant difference between this case and Santana.” 229 Ill. 2d at 568. Santana, however, involved hot pursuit of a fleeing felon. Moreover, Santana did not rely solely on “hot pursuit” to justify the warrantless entry into the home in that case but, rather, looked to the totality of the circumstances to find the warrantless arrest reasonable under the fourth amendment.
In Santana, an undercover narcotics officer for the City of Philadelphia gave marked bills to a contact, Patricia McCafferty, and drove her to the home of “Ma Santana,” where she purchased heroin with the marked bills. Shortly after McCafferty returned to the undercover officer’s car and turned over the heroin, the officer revealed his identity and arrested McCafferty. Immediately thereafter other officers, having probable cause to arrest Santana on felony drug charges, went to her home. As they approached the residence, the officers saw Santana standing in the doorway of the house, holding a brown paper bag. The officers exited the police car and ran up to the home, shouting “Police.” Santana took a few steps backward into the vestibule of the house and the officers followed her through the open door and arrested her.
When the Supreme Court was asked to consider whether Santana’s warrantless arrest had been lawful, seven justices concluded that it was. Justice Rehnquist, writing for the majority, reached this conclusion relying on the fact that, in United States v. Watson, 423 U.S. 411, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976), the Court had held that “the warrantless arrest of an individual in a public place upon probable cause did not violate the Fourth Amendment.” Santana, 427 U.S. at 42, 49 L. Ed. 2d at 305, 96 S. Ct. at 2409. Applying Watson to the situation before the Court, Rehnquist held that, “when the police, who concededly had probable cause to do so, sought to arrest her, they merely intended to perform a function which [was] approved in Watson.” Santana, 427 U.S. at 42, 49 L. Ed. 2d at 305, 96 S. Ct. at 2409. Rehnquist then reasoned that Santana could not thwart her lawful arrest “by the expedient of escaping to a private place.” Santana, 427 U.S. at 43, 49 L. Ed. 2d at 306, 96 S. Ct. at 2410. He concluded that the officers’ entry into the home was justified because the police were in “hot pursuit.” Rehnquist also noted that, once Santana saw the police, the officers had a legitimate fear that any delay would result in the destruction of evidence. Santana, 427 U.S. at 43, 49 L. Ed. 2d at 306, 96 S. Ct. at 2410.
Justice White, while joining the majority, wrote separately to express his belief that a warrantless entry into a home was justified whenever the police had probable cause to arrest and probable cause to believe that the offender was inside the home, as long as “entry by force was not required.” Santana, 427 U.S. at 44, 49 L. Ed. 2d at 306, 96 S. Ct. at 2410 (White, J., concurring).
In another separate concurrence, Justice Stevens, joined by Justice Stewart, expressed the belief that, because there had been probable cause which would have been sufficient to obtain a warrant, the officers’ failure to obtain a warrant was “a justifiable police decision, and *** even if not justifiable, harmless.” Santana, 427 U.S. at 44, 49 L. Ed. 2d at 306, 96 S. Ct. at 2410 (Stevens, J., concurring, joined by Stewart, J.). Justice Stevens explained that the police decision to make a warrantless arrest was justified because of the “significant risk” that the marked money would no longer be in Santana’s possession if the police had waited for a warrant. In addition, it was harmless because the officers could have waited outside the home while a warrant was obtained, but when Santana came into “plain view” the warrant-less arrest was justified before a warrant could be procured. Santana, 427 U.S. at 45, 49 L. Ed. 2d at 306, 96 S. Ct. at 2410 (Stevens, J., concurring, joined by Stewart, J.).
Justice Marshall, joined by Justice Brennan, dissented. In Justice Marshall’s view, a warrantless arrest is never justified absent exigent circumstances. While he agreed that in the case before the court an exigency existed, i.e., the likelihood that evidence of a crime would be destroyed, he believed this exigency was “produced solely by police conduct.” Santana, 427 U.S. at 45, 49 L. Ed. 2d at 307, 96 S. Ct. at 2411 (Marshall, J, dissenting, joined by Brennan, J.). Justice Marshall pointed out that, because the undercover officer did not take McCafferty to a more remote location before arresting her, her arrest made it necessary for other officers to rush to Santana’s home for fear that word would get back to Santana and she would dispose of the marked bills. For this reason, the dissenters would have remanded the matter for further proceedings to determine whether the decision to arrest McCafferty so close to Santana’s house had been a deliberate attempt to create an exigency so as to circumvent the warrant requirement.
Despite the variations in viewpoint, what can be gleaned from the majority and separate opinions in Santana, including the dissent, is that a warrantless, non-consensual entry into a private dwelling to effectuate a felony arrest will not violate the fourth amendment prohibition against unreasonable searches and seizures if the arresting officers have probable cause to arrest and the officers’ entry onto private property is reasonable in light of the attendant circumstances. At a minimum, entry onto private property to effectuate a warrantless arrest will be reasonable if (1) probable cause to arrest exists prior to the entry onto private property, and (2) the attendant circumstances include an element of exigency that justifies the decision to proceed without waiting to obtain a warrant. See also Payton v. New York, 445 U. S. 573, 583-90, 63 L. Ed. 2d 639, 649-53, 100 S. Ct. 1371, 1378-82 (1980) (probable cause plus exigent circumstances are required before police may make a warrantless, nonconsensual entry into a dwelling to conduct a search or seizure).
Turning to the case at bar, the facts reveal that Officer Dawdy made a warrantless, nonconsensual entry into the home of Patricia Foiles and thereafter arrested defendant Wear on a charge of driving under the influence (DUI) (625 ILCS 5/11 — 501(a)(2) (West 2000)), a misdemeanor. Defendant argues in his brief that there are important distinctions between the case at bar and Santana because here the arresting officer’s subjective intent for entering the residence was to conduct a Terry stop regarding the misdemeanor offense of DUI, not to effectuate a felony arrest. He asks this court to make clear that, even if an officer is in “hot pursuit” and the suspect escapes to a private place, a police officer is not entitled to enter that private place to conduct an investigatory stop based on a reasonable suspicion that the suspect has committed a crime, particularly where, as here, the suspected offense is not a felony.
The majority finds that, from an objective viewpoint, Officer Dawdy had probable cause to arrest defendant for DUI prior to the officer’s entry into the home. Thus, although Officer Dawdy’s subjective belief was that he was entering the residence to conduct a Terry stop, that subjective belief is not controlling. The majority makes clear that “were objective indicia of probable cause absent in this case, Officer Bawdy’s entry into the residence to merely conduct an investigatory Terry stop would have violated the fourth amendment.” 229 Ill. 2d at 567.
I agree with the majority that, from an objective standpoint, Officer Bawdy’s reasonable suspicion that defendant had been driving while intoxicated ripened into probable cause to arrest for BUI while the officer stood on the threshold of the Foiles residence. My concern, however, is not with the majority’s treatment of the probable cause inquiry. Rather, I believe that the majority errs and fundamentally alters fourth amendment law when, in determining whether an exigency exists, it considers whether the circumstances constitute “hot pursuit” without regard to the seriousness of the underlying offense and fails to assess the reasonableness of Officer Bawdy’s conduct in light of the totality of the circumstances.
In the case at bar, the majority determines that the circumstances in this case constitute “hot pursuit” and then concludes that the exigent-circumstances requirement for an officer’s warrantless, nonconsensual entry into private premises (Payton v. New York, 445 U.S. 573, 583-90, 63 L. Ed. 2d 639, 649-53, 100 S. Ct. 1371, 1378-82 (1980)) was satisfied. See 229 Ill. 2d at 571 (“[Bawdy’s] warrantless, nonconsensual entry into Foiles’ residence was excused under the doctrine of hot pursuit”). In so doing, the majority relies on Santana without acknowledging that in Santana the officers were attempting to apprehend a fleeing felon. The majority fails to recognize that the seriousness of the underlying offense is part of the calculus for determining whether exigent circumstances exist. For this reason, I believe the majority’s analysis is incomplete.
In determining whether a particular governmental action violates the fourth amendment, a court must evaluate the search or seizure under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. Wyoming v. Houghton, 526 U.S. 295, 143 L. Ed. 2d 408, 119 S. Ct. 1297 (1999); Vernonia School District 47J v. Acton, 515 U.S. 646, 652-53, 132 L. Ed. 2d 564, 574, 115 S. Ct. 2386, 2390 (1995). In general, a warrantless arrest by a police officer will be reasonable for fourth amendment purposes if the officer has probable cause to believe that the person has committed or is committing a criminal offense. However, warrantless searches or seizures occurring inside the home are presumptively unreasonable (Payton v. New York, 445 U.S. 573, 586, 63 L. Ed. 2d 639, 651, 100 S. Ct. 1371, 1380 (1980)). Thus, if an officer possessing probable cause to arrest has no warrant, he may enter into a private residence to effectuate an arrest only if exigent circumstances exist that will excuse the warrant requirement. In other words, exigent circumstances may substitute for the warrant requirement. However, when deciding whether exigent circumstances exist, the seriousness of the crime involved is a factor to be considered. See People v. Foskey, 136 Ill. 2d 66 (1990) (one of the factors that may be taken into account in assessing exigency in a particular situation is whether a grave offense is involved).
In the case at bar, the majority opinion finds that the officer’s warrantless entry into the private residence to effectuate defendant’s arrest was justified because the officer had probable cause to arrest and he was in “hot pursuit.” Nothing in the majority’s opinion would suggest that the seriousness of the underlying offense played any role in determining whether exigent circumstances existed in this case. I cannot agree with this approach. In my view it is overly broad and serves to erode the important privacy protections guaranteed by the fourth amendment. See N. Vaughan, Overgeneralization of the Hot Pursuit Doctrine Provides Another Blow to the Fourth Amendment in Middletown v. Flinchum, 37 Akron L. Rev. 509, 528 (2004) (when reviewing a warrantless arrest for reasonableness, if a court does not take into consideration the severity of the crime for which the defendant is being pursued, the court abandons the balancing test, resulting in “the right to privacy being permanently outweighed in the realm of hot pursuit”).
In Welsh v. Wisconsin, 466 U.S. 740, 80 L. Ed. 2d 732, 104 S. Ct. 2091 (1984), the Supreme Court found that a warrantless entry into a home to arrest the defendant for DUI violated the fourth amendment due to a lack of exigent circumstances. The Court held:
“Our hesitation in finding exigent circumstances, especially when warrantless arrests in the home are at issue, is particularly appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. See Payton v. New York, supra, at 586. When the government’s interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.” Welsh, 466 U.S. at 750, 80 L. Ed. 2d at 743, 104 S. Ct. at 2098.
The Welsh Court also noted that “[e]ven the dissenters in Payton, [while] believing that warrantless home arrests [were] not prohibited by the Fourth Amendment, recognized the importance of the felony limitation on such arrests.” Welsh, 466 U.S. at 750 n.12, 80 L. Ed. 2d at 743 n.12, 104 S. Ct. at 2098 n.12, citing Payton, 445 U.S. at 616-17, 63 L. Ed. 2d at 669, 100 S. Ct. at 1395 (White, J., dissenting, joined by Burger, C.J., and Rehnquist, J.) (“The felony requirement guards against abusive or arbitrary enforcement and ensures that invasions of the home occur only in case of the most serious crimes”). See also McDonald v. United States, 335 U.S. 451, 93 L. Ed. 153, 69 S. Ct. 191 (1948) (a finding of exigent circumstances to justify a warrantless home entry should be severely restricted when only a minor offense has been committed).
Importantly, Welsh did not hold that a warrantless entry into a dwelling will be valid only if the offense for which the defendant was arrested is a felony. Rather, the Court held:
“We therefore conclude that the common-sense approach utilized by most lower courts is required by the Fourth Amendment prohibition on ‘unreasonable searches and seizures,’ and hold that 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. Moreover, although no exigency is created simply because there is probable cause to believe that a serious crime has been committed, see Payton, application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense, such as the kind at issue in this case, has been committed.” Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099.
In Welsh, the warrantless entry into the defendant’s home occurred late at night after the police found a recently abandoned car and were told by a witness that the driver of the car had swerved off the road and then walked off, appearing to be either sick or inebriated. The police checked the registration inside the car and determined that the owner of the car lived a short distance away. They went to the home without first obtaining a warrant, found defendant asleep inside his bedroom, and arrested him for driving while intoxicated. When the defendant challenged the lawfulness of his arrest, the Wisconsin Supreme Court upheld the arrest, finding a “co-existence of probable cause and exigent circumstances” justified the warrantless entry into the home. The exigent circumstances that the state court relied upon were the hot-pursuit doctrine, the threat to public safety, and the need to preserve evidence of the petitioner’s blood-alcohol level.
On review,4 the United States Supreme Court found that none of the proffered reasons for making a warrant-less entry constituted exigent circumstances under the facts of the case. The Welsh Court held:
“The State attempts to justify the arrest by relying on the hot-pursuit doctrine, on the threat to public safety, and on the need to preserve evidence of the petitioner’s blood-alcohol level. On the facts of this case, however, the claim of hot pursuit is unconvincing because there was no immediate or continuous pursuit of the petitioner from the scene of a crime. Moreover, because the petitioner had already arrived home, and had abandoned his car at the scene of the accident, there was little remaining threat to the public safety. Hence, the only potential emergency claimed by the State was the need to ascertain the petitioner’s blood-alcohol level.
*** The State of Wisconsin has chosen to classify the first offense for driving while intoxicated as a noncriminal, civil forfeiture offense for which no imprisonment is possible. See Wis. Stat. §346.65(2) (1975); §346.65(2)(a) (Supp. 1983-1984); supra, at 746. This is the best indication of the State’s interest in precipitating an arrest, and is one that can be easily identified both by the courts and by officers faced with a decision to arrest. See n.6, supra. Given this expression of the State’s interest, a warrantless home arrest cannot be upheld simply because evidence of the petitioner’s blood-alcohol level might have dissipated while the police obtained a warrant. To allow a warrantless home entry on these facts would be to approve unreasonable police behavior that the principles of the Fourth Amendment will not sanction.” Welsh, 466 U.S. at 753-54, 80 L. Ed. 2d at 745-46, 104 S. Ct. at 2099-2100.
A majority of the jurisdictions that have considered the matter have limited Welsh’s restriction on warrant-less arrests to nonjailable offenses and, thus, have held that exigent circumstances may exist when there is probable cause to believe that a misdemeanor, rather than a felony, has been committed. See People v. Thompson, 38 Cal. 4th 811, 822-23, 135 P.3d 3, 10, 43 Cal. Rptr. 3d 750, 758-59 (2006) (and the cases cited therein).
Here, the majority distinguishes Welsh on the grounds that, under Wisconsin law, a first DUI offense was a nonjailable, civil offense, whereas, in Illinois, a DUI conviction is a more serious misdemeanor, punishable by up to 364 days in jail. 229 Ill. 2d at 570. However, the majority does not treat the seriousness of the offense as a factor in its determination of whether exigent circumstances exist.
Nor does the majority, having found exigent circumstances to exist, look at the reasonableness of the officer’s actions in light of the totality of the circumstances. In my view, we should reaffirm our decision in Foskey and hold that a determination that a warrantless arrest is reasonable in a certain case cannot be made without looking at the totality of the circumstances that led up to the police officer’s decision to make a warrantless entry into a dwelling. See Foskey, 136 Ill. 2d at 75-76 (In determining whether the police acted reasonably, the court must look to the totality of the circumstances confronting the officers at the time the entry was made. The circumstances must militate against delay and justify the officers’ decision to proceed without a warrant. The guiding principle in such cases is reasonableness, and each case must be decided on its own facts); see also Brigham City v. Stuart, 547 U.S. 398, 164 L. Ed. 2d 650, 126 S. Ct. 1943 (2006) (wherein the Court, after finding exigent circumstances, looked to the reasonableness of the officers’ action under the totality of the circumstances).
Although I find the majority’s analysis lacking for the above reasons, I agree with the majority that exigent circumstances existed that rendered Officer Bawdy’s entry into the Foiles residence reasonable and defendant’s subsequent warrantless arrest lawful. Officer Bawdy had probable cause to arrest defendant for BUI at a time when defendant was standing just inside the threshold of the Foiles residence — a place considered “public” in Santana. Thus, a lawful arrest could have been made at that time and defendant could not thwart his lawful arrest by the expedient of walking into the private residence. See Santana, 427 U.S. at 42-43, 49 L. Ed. 2d at 305, 96 S. Ct. at 2409-10.
Further, based on the manner in which “hot pursuit” has been defined (see Santana, 42 U.S. at 43, 49 L. Ed. 2d at 305, 96 S. Ct. at 2410), Officer Bawdy was in “hot pursuit” of defendant when he entered the Foiles residence. “Hot pursuit” requires some indication of a chase. That is, the evidence must show that the defendant was aware that he was being pursued by the police and that the defendant retreated, or “fled,” from a public place to a private place to escape or avoid arrest. Clearly, the evidence in the case at bar meets this criteria.
When defendant got out of his car and proceeded toward the residence, Officer Bawdy pulled up behind defendant’s car and repeatedly demanded that defendant stop and remain by his vehicle. Officer Bawdy also followed defendant to the door of the residence, where defendant spoke with Officer Bawdy, stating that he had “made it home.” Officer Dawdy asked defendant for his identification, but defendant refused to comply and retreated further into the home. Defendant was aware that Officer Dawdy was asking for his identification as a preliminary to arresting him. Defendant’s retreat into the home was to avoid that arrest. Furthermore, although the offense for which defendant was arrested was a misdemeanor and not a felony, DUI in Illinois is a jail-able offense and, for that reason, is sufficiently serious to justify the officer’s entry into the home to effectuate the arrest.
Finally, I would find that, under the totality of the circumstances, Officer Dawdy acted reasonably. Although entry into the home was nonconsenual, it was made peaceably. Officer Dawdy did not have to break down doors or use a show of force — he simply followed defendant into the residence. Accordingly, I would find that Officer Dawdy was not required to refrain from entering the home or attempt to obtain a warrant before arresting defendant. For these reasons, I agree with the majority’s ultimate determination that defendant’s arrest was lawful and thus I would also affirm the defendant’s conviction.
JUSTICES FREEMAN and KILBRIDE join in this special concurrence.
The Court did not consider whether there had been probable cause because the defendant never challenged the finding by the state courts below that probable cause existed.