the court my name is elliot turban and i represent the defendant robert where in this case the fourth district appellate court ruled that the police may make a warrant with nonconsensual entry to a residence whenever they set in motion in a public place appellate court improperly expanded the scope of the ruling in santana in a manner that is inconsistent with fourth amendment principles the united states supreme court has made it clear the chief evil that the physical entry of the home is the chief evil against which the fourth amendment is directed and the court has also held that searches and seizures inside the home are presumption of lee unreasonable if they are done without a warrant and that the police bear heavy burden whenever they try to demonstrate a circumstance that will excuse the requirement for a warrant now they tell a court in this decision and the state and its argument have relied pretty much exclusively on united states versus santana a review of united states versus santana actually shows that the opposite result should have been reached in this case as appellate court held and as the record clearly indicates when officer downey entered that residence in question in this case he entered it to make an investigatory stop a terrorist stop it's set in motion a terry stop before mr ware went inside the house not an arrest now santana deals only with arrests not investigatory stops and i think there are three passages from santana that are particularly relevant to this point first of all the court said the first question we must decide is whether when the police first sought to arrest santana she was in a public place the court then went on to say the only remaining question after they had answered that question in the affirmative is whether her act of retreating into her house it war and otherwise proper arrest and then you look at the ruling the court said we position is also that santana really only applies to a rests if you read the santana case the very brief opinion and what the fourth district appellate court did in this case will say that well under santana any time any type of  is commenced outside then if the suspect retreats inside then he can the police officer can go inside after but say ten only dealt with the rest it gave no indication as to how it would rule in the case of an investigator stop and certainly what the appellate court did by saying any time there's a seizure it's ok to go inside the house certainly isn't supported by santana because if you reach santana the word seizure only appears in that opinion one time and that is in a footnote when they were discussing who had standing to object to the seizure of the contraband in question so our position on santana is that essentially it applies only to arrests i think it was limited  by the mere fact that it was a case involving an arrest and nothing else and they gave no analysis as to what types of seizures are allowed what type of suspicion is required in order to engage in certain seizures so i think santana is are you're indicating in this case i think that any police officer would not have probable cause until he got inside the whole set he did not have our position actually or honors that he didn't have probable cause at all but certainly our position is that if he ever did obtain probable cause that it did not occur until after he had been inside the residence several minutes did does not the record indicate that the officer testified that he had seen two or three traffic violation had turned on his red lights and was attempting to pull the defendant over when he certainly did a couple of petty offense traffic violations which as he admitted would not necessarily be an indication of intoxication yes he did  set in motion a traffic stop for those offenses but those mere facts alone your honor do not establish probable cause for dui and they certainly don't a stablish probable cause and exit circumstances in order to make a warrantless nonconsensual in tr into the residence is that in any way change your argument with regard to sandown of lying if he could have arrested for the video games but stop well in santana again if this were an arrest then you look at the police set in motion an arrest outside however what you have to look at though is that the later cases of that the united states supreme court have clearly held that i want to list nonconsensual entry into a residence must be supported by probable cause and exit circumstance and further as the united states supreme court held in welsh versus wisconsin am it's a civil non jail bill petty offense traffic violation even with probable cause circumstances will not justify an entry into the home there has to be a much more serious offense in place and so therefore even assuming for the sake of argument that officer dowdy had probable cause for not using a turn signal and not miles would probably take several miles outside of town based on my familiarity with it i would say he might travel maybe a half a mile all together from the very first time that they met at the edge of town until the time that  mr ware finally arrived at his destination but again you know if you look at the testimony as to what happened during that period of time even though the quote unquote hot pursuit does not have to be as the us supreme court characterized the hue and cry about the public streets this was not a case where mr ware's vehicle was traveling in an erratic manner this was a narrow hilly not be street he was not striking parked cars he was not going at an excessive rate of speed he was not running pedestrians off the sidewalk from all indications a sound like he was out for a sundial drive him well i'm glad you ended with that because it the the facts to make a difference here and the read on the facts is considerably differen characterized as a right as a radek driving i mean you know you have an explanation for it later on we got to to puddles we don't know there's a lot of potholes but this is what the police officer saw sure right and then he turned before they got to the driveway he turned on his emergency lights found it didn't slow down and turned into the driveway and got out of the cars that correct that would be correct there on the officer said it that time seems repeatedly get back in the car  stop stop now words to that effect he went into the house correct he did he turned and looked back out the door and he said words to the fact that i made something to that effect around at some point you know i'm sure they'll be a dispute as to this at some point the officer smelled alcohol on the defendant yes when when is when when when did that happen according to your reading of the record well it kind of depends on who was asking the questions of the police officer however kate on page thirty six of the of the record docs or testified when he was inside the house i had been up at the doorway is when i first made contact with him and i could smell the alcohol coming from his driving and alcohol on the ground correct certain certainly reasonable suspicion but not probable cause and again if you read the officer's testimony it seems incredibly convenient to me that just a split second prior to the time that officer crossed the threshold of that house that's where he smells alcohol and so i think it's obvious yes the credibility to this officer is also same which is very helpful to your argument that he hadn't formulated the ten to arrest yet that is correct and he admitted that as well right now i did for dui i really don't know how he could because these other incidents of driving as you characterize it just show  weight those as he admitted are things that could be totally innocent have nothing to do with alcohol and i think the strongest indicator but there might be a possible dui here is that odor of alcohol when he smelled that after mr whale is already inside and after that and as the police officer himself was going into the house so i think it's look it was a strange thing to say he had probable cause for dui when he violations certainly going to the stop sign a man refused to stop when he was told to do someone in the house but that could be for all kinds of reasons other than the person was drawn to stand but i'm looking through the eyes of the police officer at that moment well that would certainly arouse suspicion if i were him that would arouse my suspicion too but the thing is suspicion for what again he had in order to justify this warrantless entry into the house he would have to have probable cause and exit circumstances and probable cause for more than just petty offense traffic violation if he's trying to justify the entry in this case he would have to show that he had probable cause for dui when he went in what do you have to support your your argument that the officer had to form the subjective intent to arrest before entering the threshold instead of it's sufficient peters pro because based on the objective circumstances well i'd wear it as the subject of intent from him and he were well subjective intent is generally not considered i will acknowledge that however there are federal cases that have held that as far as whenever the officer is entering a residence without a warrant that his subjective intent does become relevant and additionally the united states supreme court has held that ordinarily the probable cause determination is an objective factor however as far as whatever subjective intent is conveyed to the suspect then it does become relevant perhaps not the most relevant factor certainly but if you look at the mendenhall test for whenever a person is put under arrest that is also an objective test based upon the circumstances of the case if the  defendant has been told hey you're under arrest that is one of the things that he has to take into consideration in determining your earlier we have to take into consideration and determine whether a reasonable person in his circumstances would feel that he was under arrest officer d indicated that he told mr ware stop mr ware testified that he never heard that so the subjective intentions of the police officer have some limited relevance but that there is some relevance according to federal case law  as to how could it pop the law be possibly any other way and what i'm referring to is i think just as appleton capsulizes the facts this is a quote from their opinion defended though though the thought the enforcement of traffic laws resemble the children's game of tag whereby the officer was it and defendant was safe if you reached home before the officer apprehended is that really what happened here actually i  don't think so i think that what happened was that this officer was confronted with a person that wouldn't stop for him and he didn't really know what was what was the deal with him in fact i think he testified when i question ad and he indicated that he stopped and he wanted to check him out to see what the problem was he didn't know what the problem was with him and i think that when he went in if you look at his testimony he said he felt very uncomfortable going in and he tried to get him to go outside to do those things that you would do on a traffic stop get him to take field sobriety tests get him to take a p v t get in his identification things like that so i don't think it was questions it looked like he was out for a sunday drive i don't know what took him so long to catch up with mr ware but the problem is that again you have to have both probable cause and exigent circumstances in order to enter the residence santana doesn't apply to this case at least as far as to up hold the stop because this was not an arrest the police officer clearly had a suspicion when he went inside but he certainly didn't have probable cause if he had and he certainly would have needed to get mr ware to try to go outside to try to get him to take field sobriety tests he didn't even know who this guy was didn't have any idea on didn't have any information on him didn't smell the alcohol until they were both going in the house so i don't think stayed inside long enough that his blood alcohol level would would be dissipated although i'm certainly not an expert now it could also go up to you know no bring with the evidence could be a concern of the opposite that could be a concern certainly although the state has never set so i yeah there is that concern possibly there but even the state conceded at the trial level that that really wasn't what was going on here the officer again testified that he was just on his way in the house he the officer was when he first know that odor of alcohol so until a split second before he went inside he wasn't concerned about preserving alcohol level because he didn't know that there was an alcohol level to be preserved but at least on a reasonable examination of the facts he certainly couldn't have made that determination pursuit the hot pursuit kind of like preservation of evidence should not be considered as a means in and of itself in existence circumstance in of itself for three basic reasons first of all it's traditionally only been applied to felonies second of all as the u s supreme court indicated in welsh versus wisconsin in entry even with probable cause an exit circumstances is not allowed for a minor offense and if you have probable cause for a petty offense traffic case that's not going to allow the police officer to go in and third of all what we need to look at in this case is that what happened inside this was not a case like santana where the police just went inside grabbed the guy pulled him outside they went inside the house and made a full blown traffic stop only didn't occur at the side of a road it occurred in my client's kitchen he was in there for several minutes this is a much more substantial intrusion then was the intrusion in united states versus santana and with that if there are no furthe court my name is retha staats and with the office of the illinois attorney general and i represent the people of the state of illinois i'd like to start with the probable cause question essentially mr ware's argument seems to be that his driving could have been worse of course it could have but that's not the question also i think i have to disagree with the characterization of some of the evidence in the brief on the point of whether there were some obstructions in the road that would have required mr ware to drive on the wrong side of the road i think my reading of the transcript is that the attorney asking the questions of both mr ware and officer dadi tried very hard to get both of them to testify that there were obstructions that would have required someone to drive on the wrong side of the road but neither of them did that what officer dadi testified was that there might have been bumps on the road but that he was following right behind mr ware and that he did never never needed to swerve to the opposite side mr ware for his part at a couple points in the testimony gave a sort of colorful detailed description of the road that he was driving on but he never actually said that there was anything that required him to drive on the wrong side of the road instead what he said was that he never did swerve weave so i don't really think the testimony at all supports the idea that any of this was necessary because of some sort of obstruction in the road the facts of the trial court found a stablish abundant probable cause lane forces him off running him off the road daddy follows directly behind he sees where swerve and drive on the wrong side of the road then we are turns without signaling and as he does that he crosses into the wrong side of the road again at that point audi puts on his flashing rotator lights on the light bar on top of his mark squad car as well as his takedown lights which are bright white lights that are attached to the light bar shining in front of the car and his spot lights but despite the flashing lights we're keep striving for five or six more blocks dadi keeps following him where swerves again drives on the wrong side of the road again and then he runs a stop sign and pulls into the driveway and starts staggering and stumbling toward the house so he pulls in behind him with all of his lights still on and his where is stumbling and staggering toward the house doughty orders him repeatedly stop get back in your car then officer  zz and mr aware meet at the doorway of the house at this point officer jodi's testimony is clear that while he is still outside the house he smells a strong odor of alcohol on mr ware's breath something like i've been chasing you for since street with my lights on and you refuse to pull over where ignores him walks into the house just inside the doorway and turns to face toddy and says i made it home appellate court correctly determined that this was plenty of probable cause for dui first we have numerous traffic violations speeding the failure to stop the failure to turn signal several instances of weaving and driving on the wrong side of the road and of course running the police officer off the road the traffic violations are not irrelevant in some cases navy an isolated traffic violation could suggest carelessness or laziness on the driver's part just as much as it might suggest impairment but that's not the case here because there are multiple violations because the type of driving is erratic and it suggests impairment and also because the violations continue in the presence the immediate presence of a marked police car when most people if they're the sober but lazy driver  just fails to follow the traffic laws all the time would immediately shape up as soon as the officers there and they would stop speeding they would start signalling their turns and things of that nature so there's multiple violations there's an erratic pattern of driving and th in case there's any doubt that it's that this is all suggestive impairment there's too physical signs of impairment there's a strong order of alcohol which again was before doughty entered the house and there's the stumbling and staggering and the crossing of the feet as where tries to make his way toward the house in addition there's the flight there's two circumstances a flight here while off the wall where is driving he flees from off their daddy's flashing lights and then when he's on foot in the driveway he flees again while officer dadi is repeatedly ordering him to stop and get back in his car that's rose consciousness of guilt where's a good knowledge in that he's done something wrong that's why he's running or he's moving a slow speed but he's of aiding the officer under super and it's clear that that flight is strong evidence of mens rea and it's relevant to probable cause finally and probably the most damning evidence mr ware's own statements that clears up any doubt that he knew he'd violated the law that he knew dottie was trying to stop him and that he thought he could escape the consequences if you could make it into his house and that's clear from his statement i made it home that's just before the officer gets into the house and technically for the suspension context the real question is probable cause at the time of the arrest which actually occurs inside there's a couple more pieces of evidence which really don't matter because we already have probable cause but just to outline what those are once the officers inside where refuses field sobriety he says it hasn't helped him in the past he refuses to provide identification he admits that he's been drinking and he resists being hand now mr ware says that there's numerous cases that support the proposition that this was not probable cause he's only cited three and none of them really support that proposition besides tucker and o'brien both of those were cases where the trial judge discredited the arresting officer so of course the reason no evidence of probable cause at all and then he also cites the mercs case and that's distinguishable because that was really just traffic infractions and here of course we have more we've got to ra questions about any of the facts i'll move on to the santana question if this court decides that the legality of gaudi's intrigue in the house is somehow relevant to the suspension question the suspension should still stand because the entry was proper i understand him this case is very similar to the facts of santa ana what happened in santa ana is that the police have probable cause  drive up to her house and she is standing right in the doorway which the court holds is actually a public place they pull up and as they approach getting out of their cars all they do is display their identification and the police in response to that santana retreats into the vestibule buil just inside the house so she's now in a public in a private place and what the court held was that a person cannot or what would have been a permissi public place seizure by ducking into a private space if they do that the officer can go in to get them that's exactly what happened here first officer dadi had probable cause before he ever went into the house just like the officers did in santana and he signaled to wear that he was attempting to seize them just the way the officers and santana yelled police and showed their identification dadi gave clear signals that he was trying to seize where he has flashing lights on for five or six blocks and then only stop get back in your car finally just as in santana where response to these lawful orders to stop by retreating into a private place when he does that dottie is free to follow him into effect this year where mr ware doesn't have any support for the idea that the santana principle is limited to felonies he has a lot of dicta that says santana pursuit cases they're not really santana cases so i don't i think that those categories should be kept separate a lot of the cases that we are talks about as hot pursuit cases are not santana cases in that they're not situations recently some places call that hot pursuit but that's really different from the santana scenario the way we're describing it the santana scenario requires that the officer give some kind of outward signal that he's trying to seize the suspect while the suspects outside then the suspect goes inside that's the santana rule and that's what this case falls wearily within wouldn't have to go that far here because there's at least a misdemeanor and there's also probable cause for obstruction of justice which is a felony but it logically should apply to misdemeanors because santa is really just a very slight extension of the public place exception to the warrant quire meant under watson says if the officer has probable cause he can arrest the suspect in a public place without getting a warrant and it's clear from  that rule applies all the way down to petty offenses in that case it was a seatbelt offense that wasn't it was only punishable by a far right so to the extent that santana just builds on the public place exception to the war requirement and just extends it slightly by saying if the officers are making a permissible public place arrest and the suspect goes inside the officer can follow santana should apply to the same extent that the public place exception to the  he did say that he did not finally decide to arrest him i think until after he was inside but that's really irrelevant the officers intentions thoughts feelings purposes all of that is always i'm so i'm not sure and tell me about probable cause how would there be a probable cause if you didn't have some idea what the officer was thinking or having to do i'm not sure i'm following the probable cause is just based on what the officer knows and i position is that to come within santana the officer has to archie q late some to give the suspect some outward sign that i'm trying to  so he doesn't have to say i'm trying to arrest you or i'm trying to stop you that didn't happen in santana either all that happened was the police flashed their badges and yelled police and it was clear from what they did and from santana's response that she knew they were trying to her and whether it ultimately turned out to be a terry stop or a arrest really is irrelevant because the officer had probable cause and that's the amount of evidence that would justify either type of seizure and to either type of encounter would start the same way and the intrusion would be the same from the suspects perspective i mean whether he was intending to arrest him or stop him he turns on the lights and yell stop that that could have ended up in him being and taken into custody or not so i'm not sure if i'm addressing your question though  where is argument that the and officers intent is relevant is as we mentioned it's not supported by any supreme court law the supreme court says intent is always irrelevant then he cited some cases that say well intent is relevant to the extent it's communicated well that supports our position if it's communicated it's really not intent than it's outward actions and of course we're green with outward actions are relevant but it's never going to be necessary to determine whether a particular police citizen encounter is a terry stop or is actually an arrest unless the officer only has a reasonable suspicion that is unless he can justify the arrest only the terry stop the officer as probable cause it never matters what type of it seems to put him in an awkward position as we explained in the brief he seems to be conceding that if an officer has probable cause to arrest a suspect outside and he attempts to seize him and the suspect police inside the officer can go in but only if he's planning to arrest him on the exact same set of facts he seems to be saying the officer can't go in if he's planning to terry stop him that seems to be saying that the officer would be violating his constitutional rights by doing the exact same thing just based on what he was thinking and that doesn't really make any sense the officers thoughts can't violate a suspect constitutional rights he doesn't have and he also seems to be suggesting that well where the officer should've arrested him outside but he doesn't have a constitutional right to be arrested at all so the argument really doesn't make sense at all seems to turn on what the officer is thinking which is really irrelevant  i'll move on to the exclusionary rule question first there's just a couple of forfeiture and waiver points that come up based on the reply brief first the reply i criticize of the state for responding to the exclusionary rule argument says we've missed the point our point was to respond to mr ware's argument made in his opening brief his opening brief he discussed the legality of the entry and the only way he linked that up with the suspension proceeding was to argue that the exclusionary rule applied so to the extent we addressed that question we're just responding to his argument he also says in the reply brief that we conceded in the appellate court that the exclusionary rule applies to suspension prosy that's not true at all we did not concede that the question about then in the context of discussing that argument the appellate court said something like the parties don't dispute that the exclusionary rule applies and that's technically true but it's a little bit misleading we didn't dispute it because where he never argued that it did apply he didn't argue that in the suspension of the license and we were also disputing the suppression ruling that took place in the criminal case so of course we were addressing the legality of the entry because it was relevant to the suppression issue that issue is now dropped out because the appellate court the litigant wants to take advantage of it has to file a motion to suppress asking to suppress certain evidence explaining how it flows from a particular constitutional violation he didn't do that in the trial court that's why the argument it's horrific also in the reply mary from where seems to raise a new different argument he seems to sort of take back the exclusionary rule argument and say well it's not really about the exclusionary rule it's really about this other question of whether if the officers violate the fourth amendment in any way in any circumstances leading up to the arrest that somehow enables the suspect to avoid a summary suspension that argument was first raised in this court in the reply brief we haven't had a chance to respond so i would ask the court to team that argument for for that as for the most of those cases don't actually support his position there are a couple states that have held that but of the cases he cites one is not related at all because it was based on the vermont constitution which is broader than illinois that's the most find me maybe you can help me out i'll have the same sorry go ahead the statutory edition for statutory to rescind the statutory summary suspension is a hearing of its own it's not a it's not a it's not a hearing to decide whether evidence excluded or not used not to be considered so statutory suspension is that what we're talking about we're talking about that's the argument i mean when the reply brief and if the court's saying well that's really the same as the argument he raised in the first case it may be there they're kind of murky and i honor to get to justice fitzgerald's question first exclude what from where i kind of feel like i might have sent everybody down a rabbit hole on this one i cited that one sentence in kruger that says that a summer suspension hearing sort of acts like an exclusionary rule the question is exclude from what from where no in an implied consent proceeding we're not talking about excluding evidence but if you read the plain language of the statute at the conclusion of the hearing on  summer suspension petition the court has to decide whether to sustain or rescind the statutory summer suspension and the fourth amendment is directly implicated because one of the issues that can be addressed in a petition to rescind statutory summer suspension is where the reasonable grounds for the arrest reasonable grounds as we all know means probable cause for his probable cause come from the fourth amendment for over twenty years the courts in the state have been addressing whether and a rest was legal under the fourth amendment and where they found that it is not then the statutory summer suspension has been rescinded when the case goes up on appeal the court determines whether under the fourth amendment the arrest was legal or not and therefore whether the trial court's decision on this was correct so that is what we're talking about when we talk about that's really real solution is it really isn't supposed of motion to suppress that story summaries exactly the whole thing is does the fourth amendment analysis of a legal arrest apply to an implied consent hearing and according to the plain language of the statute according to the illinois case law and currently including this court's decision and people versus smith and as recently as february thirteenth of this year in a second district appellate court opinion people versus would that issue is directly implicated so no it's not whether we're trying to keep evidence out it's just does the will galatea of the arrest or illegality of the rear the arrest either sustain or cause to be rescinded the statutory summer suspension to address a state's argument as to the general merits of the case under the fourth amendment the state relies on two things number one the assertion that there is probable cause which we each have our own opinions on that and united states for santana that's it that's the only thing to relying on there is no discussion in the brief as to people  there's no discussion as to exit circumstances i don't even know if the phrase exigent circumstances even appears in the argument of their brief but probable cause is only half the equation you can't look at just probable cause you have to look at the possibility of exit circumstances again you can't just simply rely on santana because that was a case that simply involved in arrest not an investigatory stop and again the problem with the fourth amendment decision in this case was that the fourth amendment says any time the police try to make a seizure of any kind outside and the suspect retreats inside then the police officer is allowed to go inside after that is not an accurate statement of the law because if there is a terry stop simply based on reasonable suspicion then that does not rise to the level of probable cause that allows a police officer to go inside the u s supreme court has been very clear and very adamant that probable cause is required to support any type of want less entry to a house so the problem with this case the fourth or fourth district decision is not just a problem for my client but it's a problem for future cases looking at precedent and they look at the fourth district opinion say well i guess if there is reasonable suspicion for a traffic stop or a dui and the guy doesn't stop the police officer i guess the police officer can go on and immediate danger to the police or others in the area there may have been what can technically be called a hot pursuit again i've indicated before i've used the phrase sunday drive that's about what this following more us but in any event there was no danger in the defendant's driving he wasn't driving out of control he wasn't hitting parked cars he wasn't moaning over pedestrians it was the middle of the night  nobody else was around he was driving slowly his driving might not have been the best but it certainly wasn't any danger to anybody in the area and the fact that there it may have been what the courts may call hot pursuit that in and of itself does not indicate that there is any clear and immediate danger to anyone in fact even though driving under the influence is obviously not a good idea it's a serious problem it's a it's a dangerous thing to do however a motorist who is under the influence is really only a danger to other motorists once he gets home once he gets inside his house that danger has been eliminated and for that reason the police under seagull versus united states under this  court's decision people vs white would be authorized to post guards at the door while the main police officer went and got a warrant if assessed acted step outside they can specter just as freeman's earlier was all the destruction of evidence in and of itself is not a reason is not an accident circumstance in of itself the justifies entering the house its is the determination of probable cause counsel critical to your prevailing in this case now you are as if we find there is probable cause we would be ruling the other way if the court doesn't find probable cause then the entry was not authorized period if the court does find probable cause then that's the first question the second question is whether circumstances and that is the basis of the dargon i'm just making there was no rest like the was under santana and again you're talking about intent let's let's ignore the author's intent let's look at what he did when he went inside he did not take for the reason i've stated here earlier that hot pursuit is kind of one of those things that's like destruction of the evidence it's a factor to take into consideration particularly if you look at the factors this court set out in fossicking one of the very first factors was was the offense recently committed if there is hot pursuit then obviously that offense was reasonable recently committed that's a thing to take into consideration it doesn't automatically authorize the entry and finally with respect to the intrusion into the house i think you can be very recently argued in fact is our position that the intrusion in this case was much more serious and much more lengthy and much more substantial than that in united states versus santana what would happen in santana  suspect stepped inside the police officer stepped inside one or two steps grabbed a hold of them put them under arrest that was it that might have taken fifteen or twenty seconds under the testimony in this case the officer went inside was inside and interrogated mr ware for several minutes and didn't make the determination to put him under arrest until after he had already gone through all these things that you do on a traffic stop now a terry stop might be less of a substantial intrusion when it takes place out in your