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Entry of a home to arrest for DUI.


The warrantless entry of a house or dwelling for the purposes of arresting someone for DUI is an unreasonable search and seizure in violation of the Fourth Amendment of the United States Constitution, absent probable cause and an exigent circumstance. Therefore, unless there is an urgent and pressing circumstance allowing entry, the police should first obtain a warrant for entry into a dwelling, including enclosed areas around the dwelling, such as a fenced in yard.

An exception to the warrant requirement would be consent from a person who reasonably appears to be an occupant with authority to allow entry. However, if an occupant is threatened and coerced, the consent may be invalid ( see the case of United States v Jerez 7th Cir. 1997 108 F.3d 684, where an unlawful seizure was found to take place where the police repeatedly knocked on a hotel room door for several minutes requiring the occupant to open up).

Several California decisions have also allowed the warrantless entry of a dwelling where the police observed the driving and entered the residence in “hot pursuit”.

“Exigent circumstances” allowing entry without a warrant would also include circumstances where there was an imminent danger to human life or serious damage to property or to prevent the destruction of evidence or imminent escape of the suspect. (see People v. Ramey 1976 16 Cal.3d 263, 276). Entry for the purpose of securing a breath or blood sample may be a legitimate warrantless entry, depending on the facts and circumstances. This issue is addressed in the case of People v Thompson 2006 38 Cal. 4th 811. This case does not allow forced entry for the sole purpose of obtaining chemical testing in all cases and is limited to it's facts.

Although the courts have extended the power of the police to enter into a dwelling without consent and without a warrant, entry in these circumstances is not always lawful and a careful comparison of the facts to the facts in the above cases should always be made. The proper vehicle for challenging the legality of a non-consensual entry into a dwelling by the police would be a Penal Code 1538.5 Motion. The granting of the motion would result in the suppression of any evidence obtained as a result of the unlawful search including breath or blood test evidence in a DUI case.

If you have been arrested for a DUI in Los Angeles or Orange County as a result of the police entering your home without a warrant, please contact Los Angeles and Orange County DUI lawyers Gold & Witham for an analysis of the legality of the search and seizure.