Opinion
SCOTT, J. Respondent Sherry Stephanie Hampton was charged with possession of cocaine, driving under the influence of alcohol, driving with 0.10 percent blood alcohol, and resisting a public officer in performing his duties. After her motion to suppress evidence was granted, the trial court dismissed the information pursuant to Penal Code section 1385, and the People have appealed. We reverse.
I
Respondent was stopped in her car on March 27, 1982, at about 4:30 a.m. by Officer John Eubanks. She appeared to be intoxicated. Since she was only about two blocks from home, Eubanks offered her the opportunity to be driven home. Although she insisted that she wanted to continue her search for her boyfriend, and expressed concern that her car might be stolen if she left it in the parking lot, she eventually accepted the officer’s offer.
Eubanks locked respondent’s car and kept what respondent said were her only keys, which he promised to return to her in the morning. He drove her to her apartment and walked her to her door. She went inside; he returned to his patrol car and drove to a nearby service station. A few minutes later, he resumed his patrol, and saw respondent’s car leaving the parking lot. The driver appeared to be a long-haired female, and Eubanks believed it was respondent.
Eubanks pursued the vehicle, but lost sight of it as it entered the parking lot of respondent’s apartment complex. He found the car parked in the stall for respondent’s apartment; its hood felt warm. He heard a door slam in the direction of respondent’s apartment.
Officer Eubanks quickly went to respondent’s apartment and knocked on the door. She opened the door, apparently more intoxicated than before. When asked how her car came to be parked back at the apartment, respon[30]dent stated that she had driven it home to prevent its theft. The officer then put his hand on hers, told her she was under arrest, and asked her to step outside. She pulled back into the apartment and Officer Eubanks followed, trying to keep his balance.
Respondent struggled as the officer tried to handcuff her. She called for her roommate, Richard Burrows, who came into the room with a gun. He dropped the gun when Officer Eubanks let respondent go and identified himself.
While Officer Eubanks explained to Burrows that respondent was being arrested for drunk driving, respondent ran into her bedroom. A second officer arrived. Ultimately respondent was taken to jail; during a booking search there, a vial containing powder later determined to be cocaine was found in her pocket.
Respondent moved to suppress the evidence on the grounds that (1) the warrantless misdemeanor arrest was improper because it occurred too long after the offense was committed in the officer’s presence; and (2) there were no exigent circumstances justifying the arrest in her home. The People urged that the arrest was justified both under the “hot pursuit” doctrine and to prevent the destruction of evidence. The trial court granted the motion, primarily because it concluded that the “hot pursuit” doctrine was inapplicable to a misdemeanor arrest.
II
First, the People urge that the officer made the arrest within a reasonable time after he observed the commission of the drunk driving offense. We agree.
An officer’s authority to make a warrantless arrest for a misdemeanor is governed by Penal Code section 836, subdivision 1, which provides that an officer may arrest a person without a warrant “[wjhenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence.” Such an arrest must be made at the time of the offense or within a reasonable time thereafter. (Jackson v. Superior Court (1950) 98 Cal.App.2d 183, 185 [219 P.2d 879].) In other words, if the arrest is not made “reasonably contemporaneously” with the commission of the offense, “the statutory basis for the arrest has evaporated.” (People v. Williams (1971) 17 Cal.App.3d 554, 562 [95 Cal.Rptr. 234].) In Jackson, for example, a deputy sheriff observed a youth destroying public property early one afternoon, but did not attempt to arrest him for the offense until late the next day. By then, the court held, the officer’s right to [31]make a warrantless arrest for the offense had ceased. (Jackson v. Superior Court, supra, 98 Cal.App.2d at pp. 184-188.)
In this case, after the officer initially stopped respondent, he locked her car in the Dandy Market parking lot, and drove her home. In less than 15 minutes, he saw a woman whom he believed to be respondent, driving the car again. He followed and found the car in the rear parking area of her apartment building; he heard a door slam in the direction of respondent’s apartment, and “quickly trotted, almost ran” to her door. Less than two minutes passed between the time he saw the car drive out of the Dandy Market lot and the time that he knocked on respondent’s door. The arrest was unquestionably made within a reasonable time after the offense was committed in his presence.
Ill
Whether respondent’s warrantless arrest was constitutionally valid presents a more difficult question. Nevertheless, we conclude that the arrest was proper.
A
The Fourth Amendment to the federal Constitution and article I, section 13 of the California Constitution prohibit a warrantless arrest in a suspect’s home, absent exigent circumstances. (Payton v. New York (1980) 445 U.S. 573, 576-583 [63 L.Ed.2d 639, 644-649, 100 S.Ct. 1371]; People v. Ramey (1976) 16 Cal.3d 263, 275-276 [127 Cal.Rptr. 629, 545 P.2d 1333].) “In this context, ‘exigent circumstances’ means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case.the claim of an extraordinary situation must be measured by the facts known to the officers.” (Id., at p. 276.)
First, the People assume arguendo that the arrest occurred inside respondent’s home and rely on People v. Keltie (1983) 148 Cal.App.3d 773 [196 Cal.Rptr. 243] to urge that the entry was justified by the need to preserve blood alcohol evidence. In Keltie, a person was struck and killed by a vehicle. No one saw the accident, but witnesses who heard the impact saw defendant’s van at the scene and saw him stagger and then drive away. An hour later, police found the van parked in defendant’s driveway; the driver’s compartment smelled strongly of alcohol, and the side of the van was smeared with blood. Without a warrant, officers entered defendant’s [32]home, found him visibly intoxicated, and arrested him for felony drunk driving. (Id., at pp. 778-781.)
The appellate court upheld the warrantless entry. Initially, it rejected the argument that the arrest was necessary to prevent an imminent escape. This “hot pursuit” exception applies where the delay occasioned by obtaining a warrant would permit the escape of one suspected of a grave offense, who remains “ ‘dangerous to life and limb.’ ” A person suspected of an alcohol-related offense poses no imminent danger, the court reasoned, once he is separated from his vehicle. (Id., at p. 779.)
However, the court then concluded that the arrest was justified by the need to preserve the blood-alcohol evidence, which dissipates from the bloodstream “inexorably as a function of time.” (Id., at pp. 779-781.) The court limited its holding by declaring that in order to justify an arrest on this basis, “the police would have to have probable cause to believe that the suspect was under the influence, that he has committed a felony of which being under the influence of alcohol is an element, and that he is presently at home.. In addition, the time interval between the offense and the entry must be brief enough so that evidence of drinking would still remain in the blood.” (Id., at p. 780.)
Respondent urges that Keltie is not controlling, because this case involves a misdemeanor, not a felony. Respondent argues that a warrantless arrest in a home for a misdemeanor can never be justified. As we will explain, we disagree.
In Welsh v. Wisconsin (1984) 466 U.S. 740 [80 L.Ed.2d 732, 104 S.Ct. 2091], the Supreme Court considered whether and under what circumstances the Fourth Amendment prohibits the warrantless entry of a person’s home to arrest him or her for a nonfelony. In Welsh, a witness observed a car swerve off a Wisconsin road and stop in an open field. The driver emerged, and after a brief conversation with the witness, walked away. Police arrived. The witness reported what he had seen and said that the driver was either very inebriated or sick. From a registration check, police discovered that the car’s owner lived a short distance away. Without a warrant they went to his home, gained entry, found him in bed, and arrested him for driving under the influence of an intoxicant. In Wisconsin, a first offense for driving under the influence was then a noncriminal violation; an offender was subject only to a civil forfeiture proceeding with a maximum fine of $200. (At pp.---[80 L.Ed.2d at pp. 738-740, 104 S.Ct. at pp. 2093-2095].)
The Supreme Court held that this warrantless entry was constitutionally invalid. In so holding, the court declared that the gravity of the underlying [33]offense is an “important factor” to be considered when determining whether any exigency exists. It pointed out that several states have refused to permit warrantless home arrests for nonfelonious crimes1 and stated that application of the exigent-circumstances exception in the context of a home entry should “rarely” be sanctioned when the underlying offense is only a “minor offense” such as that at issue in the case. (Welsh v. Wisconsin, supra, 466 U.S. at pp.---[80 L.Ed.2d 742-746, 104 S.Ct. 2091 at pp. 2097-2100].) Nevertheless, the court did not proclaim an absolute rule that such a warrantless arrest for a nonfelony can never be justified.2
Holding the Wisconsin arrest invalid, the Welsh court first rejected the state’s attempt to justify the arrest according to the “hot pursuit” doctrine by noting that there had been no immediate or continuous pursuit of the suspect from the scene of the crime. Moreover, because the driver had arrived home and had abandoned his car at the scene of the accident, the court concluded that there was little remaining threat to the public safety. (Welsh v. Wisconsin, supra, 466 U.S. at p. — [80 L.Ed.2d at pp. 745-746, 104 S.Ct. at pp. 2099-2100].)
The only remaining potential exigency claimed by the state was the need to ascertain the suspect’s blood-alcohol level, but the court rejected this justification as well. It focused on Wisconsin’s classification of a first offense for driving while intoxicated as a noncriminal, civil forfeiture offense for which no imprisonment is possible. (Welsh v. Wisconsin, supra, 466 U.S. at pp.---[80 L.Ed.2d at pp. 745-746, 104 S.Ct. at pp. 2099-2100].) The penalty which attaches to an offense, the court explained, is the “clearest and most consistent indication” of the state’s interest in arresting individuals suspected of committing that offense and is an indication which can be easily identified both by the courts and by officers faced with a decision to arrest. (At p. — [80 L.Ed.2d at p. 746, 104 S.Ct. at p. 2100].)
[34]The court declared that it did not mean to suggest that the prevention of drunk driving was not properly of “major concern” to the states. However, as Wisconsin had expressed its interest in arresting first offenders by choosing to limit severely the penalties which might be imposed on such offenders, the arrest could not be upheld simply because evidence of blood-alcohol might have been dissipated while police obtained a warrant. (Welsh v. Wisconsin, supra, 466 U.S. at p. — [80 L.Ed.2d at p. 745, 104 S.Ct. at p. 2100].) Concurring, Justice Blackmun emphasized his deep concern with what he perceived to be the nation’s unwillingness to do something about drunk drivers and expressed amazement that Wisconsin still classifies a first offense of driving while intoxicated as a civil violation. (At pp.--- [80 L.Ed.2d at pp. 746-747, 104 S.Ct. at pp. 2100-2101].)
California, however, is not so lenient on those who drink and drive. The penalty which attaches to a first conviction of drunk driving in this state indicates that California has a far greater interest in arresting persons suspected of committing such an offense than does Wisconsin. A first offense of driving under the influence in this state is a criminal offense; at the time of respondent’s arrest, the penalty for a first offense was imprisonment in the county jail for between four days and six months and a fine of between $390 and $500. (Veh. Code, § 23160, as amended by Stats. 1982, ch. 331, § 4, pp. 1632-1633.) In addition, a first offender’s driver’s license was subject to suspension for six months. (Ibid.) In addition to this legislative expression of California’s strong interest in arresting and prosecuting drunk drivers, our Supreme Court itself has declared its resolve “to support ‘all possible means of deterring persons from driving automobiles after drinking . . .’ [citations] . . . .” (Peterson v. Superior Court (1982) 31 Cal.3d 147, 155 [181 Cal.Rptr. 784, 642 P.2d 1305].)
In this case, as in People v. Keltie, supra, 148 Cal.App.3d 773, the officer had probable cause to believe that respondent was under the influence of alcohol, that she had committed an offense of which being under the influence is an element, and that she was presently at home. In addition, the time interval between the offense and the entry was so brief that alcohol evidence would undoubtedly still have remained in her blood. (Id., at p. 780.) In light of Welsh and the differences between California and Wisconsin law, we consider the fact that the offense was a misdemeanor rather than a felony as of no significance and conclude that the warrantless entry was justified to prevent the dissipation or destruction of evidence.
In addition, and regardless of the evidence preservation justification, the entry in this case was necessary to prevent imminent danger to life or serious damage to property. As we have discussed, in Welsh v. Wisconsin, supra, 466 U.S. 740, the court held that the arrest could not be justified on [35]that basis. However, the facts in this case are significantly different from those in Welsh. In that case, there was no “hot pursuit.” The police did not see defendant’s accident; their first encounter with him was in his bedroom. In contrast, in this case, after observing the person whom he believed to be respondent driving for the second time, the officer followed the car to her apartment building and went to her apartment; respondent herself answered his knock. In Welsh, immediately prior to the arrest there was little threat to the public safety, because the driver had abandoned his car in a field and had gone home to bed. In contrast, in this case, after the officer locked respondent’s car, pocketed her keys, and drove her home, she apparently returned to the car with other keys and drove again. Earlier, she had insisted that she wanted to continue to search for her boyfriend. Thus even though respondent was separated from her car by the time of her arrest, the officer had good reason to believe that the separation might only be temporary and that she might start driving again. In fact, he testified that one of the reasons he didn’t stop to obtain an arrest warrant was because he felt it more than likely that she would continue to get in her vehicle and drive and that her safety and the safety of others would thereby be threatened. Given her previous behavior, his concern was reasonable, and the gravity of her offense and the imminent danger she posed to life and property cannot be questioned. As the California Supreme Court has recently stated, “[t]he drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury across the roads of California and the nation.” In that court’s words, the risk posed by those who drink and drive is “horrific.” (Burg v. Municipal Court (1983) 35 Cal.3d 257, 262 [198 Cal.Rptr. 145, 673 P.2d 732].)
Under these circumstances, assuming arguendo that the arrest did not occur until after the officer entered respondent’s apartment, the entry to arrest was justified on the theory of hot pursuit.
B
As we have stated, the previous discussion is based on the assumption that the officer did not arrest respondent until after he entered her apartment. However, the facts suggest that we also consider the rule that the warrant-less arrest of an individual in a public place upon probable cause does not violate the Fourth Amendment. (United States v. Watson (1976) 423 U.S. 411, 414-424 [46 L.Ed.2d 598, 603-609, 96 S.Ct. 820].)
In United States v. Santana (1976) 427 U.S. 38 [49 L.Ed.2d 300, 96 S.Ct. 2406], police had probable cause to arrest a woman whom they saw standing in the open doorway of her home. As they approached shouting “police,” she retreated into the vestibule; they followed through the open [36]door and arrested her. (At pp. 40-41 [49 L.Ed.2d at p. 304].) First, the court held that when the officers initially tried to arrest the woman on the threshold of her dwelling, she was in a “public place” for purposes of Fourth Amendment analysis. She “was not in an area where she had any expectation of privacy .... She was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house.” (At p. 42 [49 L.Ed.2d at p. 305]; see also United States v. Botero (9th Cir. 1978) 589 F.2d 430 [in response to DEA agents’ knock, defendant opens door and is arrested; no warrantless entry issue, as agents did not enter to arrest]; United States v. Mason (5th Cir. 1981) 661 F.2d 45 [arrest at door of home permissible]; 2 La Fave, Search and Seizure (1984 supp.) § 6.1, at pp. 136-137 [“And if the person to be arrested personally answers the door and places himself in a position where he can be and is arrested without entry of the premises, no warrant is required for the simple reason that there has been no entry of private premises at all.” (Fns. omitted.)].)
Next, the Santana court held that the officers’ “hot pursuit” of the woman into the vestibule was proper. The attempt to arrest had been “set in motion in a public place” and was therefore proper, and the suspect could not defeat the arrest by the expedient of escaping into the house. (United States v. Santana, supra, 427 U.S. at pp. 42-43 [49 L.Ed.2d at p. 305].)
The People now argue that the facts of this case are similar to those in Santana. At the hearing on the motion to suppress, the People urged the “hot pursuit” justification, but seemed to overlook the argument that the arrest was actually set in motion in a public place, as in Santana. Nevertheless, it appears to be undisputed that respondent was standing on the threshold when the officer placed her under arrest. Officer Eubanks testified that he told respondent that she was under arrest while she was standing at the open door of her apartment. In her memorandum in support of her suppression motion, respondent herself sets forth the facts as follows: “Ms. Hampton answered the door, and Officer Eubanks . . . then put his hand on top of hers and attempted to place her under arrest. Ms. Hampton pulled back into the apartment and Officer Eubanks stepped inside.” Therefore, this is an even stronger case than Santana', here respondent was actually placed under arrest while at the threshold, i.e., in a public place, whereas in Santana the police merely “set in motion” the arrest (by shouting “police”) while the defendant was in a public place.
We need not decide, however, whether application of the Santana analysis to the facts of this case is a new theory which cannot be raised for the first time on appeal, as we have concluded that even if the arrest did not occur [37]until the officer was well inside the apartment, his entry and the arrest were justified by exigent circumstances.
The order of dismissal is reversed.
Barry-Deal, J., concurred.
But see State v. Penas (1978) 200 Neb. 387 [263 N.W.2d 835]; State v. Niedermeyer (1980) 48 Ore.App. 665 [617 P.2d 911]).
The United States Supreme Court recently held that a person subjected to custodial interrogation is entitled to Miranda warnings whether the offense being investigated is a felony or a misdemeanor. The court reasoned that police are often unaware when they arrest a person whether he has committed a felony or a misdemeanor. The nature of an offense may depend on circumstances unknowable to police at the time, such as whether the suspect has previously committed a similar offense; it may depend on events yet to happen, such as whether the victim of an accident dies. It would be unreasonable to expect police to make guesses as to the nature of the criminal conduct at issue before deciding how they may interrogate a suspect. (Berkemer v. McCarty (1984) — U.S. —, — [82 L.Ed.2d 317, 329, 104 S.Ct. 3138].) The court’s discussion in Berkemer further undercuts respondent’s argument that there is such a clear line between felonies and misdemeanors that a warrantless entry to arrest for a misdemeanor is always prohibited and never justified by exigent circumstances.