Fourth Circuit Upholds Warrantless Search in Virginia DUI
Can Virginia police forcibly remove your client from his home without a warrant for driving under the influence?
Supreme Court precedent says no. In an unpublished opinion, the Fourth Circuit Court of Appeals recently said yes. The Fourth Circuit suggested that its holding is distinguished from Supreme Court precedent due to Virginia DUI penalties.
In the Fourth Circuit case, Vienna Officer Reeves observed Alan Cilman driving at a high rate of speed through a bar parking lot around 12:30 a.m. Reeves followed Cilman as Cilman committed numerous traffic violations; he believed that Cilman was intoxicated. After following Cilman for several blocks, Officer Reeves turned on his police lights, and activated his sirens.
Instead of pulling over, Cilman accelerated and proceeded to drive the extra two blocks to his home.
Officer Reeves stopped in front of Cilman's driveway and got out of his police cruiser just as Cilman was briskly walking toward his front door. Officer Reeves told Cilman to stop and that he was under suspicion of driving under the influence. Cilman refused, telling the officer "this is my property, please leave." Cilman then entered the house and locked the door.
After asking Cilman to open the door, Reeves kicked in Cilman's front door and placed him under arrest.
All criminal charges against Cilman were ultimately dismissed, but Cilman sued Officer Reeves and the Town of Vienna on five claims: deprivation of his civil rights, illegal search and seizure, malicious prosecution, false arrest, and gross negligence. The district court granted summary judgment to Cilman on the civil rights and search and seizure claims. The Fourth Circuit Court of Appeals said that was an error.
The controlling Supreme Court case in this matter is Welsh v. Wisconsin, a 1984 decision in which the Court held that "police may not make a warrantless entry into a home to make an arrest for DUI." The Fourth Circuit noted, however, that the Supreme Court only found the search illegal in Welsh because Wisconsin treated a DUI as a civil non-jailable offense for which the maximum penalty was a fine of $200, and no exigent circumstances justified the warrantless entry at issue there.
DUI in Virginia, by contrast, is a Class I misdemeanor punishable by up to a year in jail and a $2500 fine.
The Supreme Court distinguished between jailable and non-jailable offenses in Welsh, but it didn't impose a wholesale ban on warrantless home arrests for minor offenses. As such, the law was not clearly defined. Even if Officer Reeves did violate Cilman's Fourth Amendment rights, those rights were not "clearly established."
While we doubt this case will spike warrantless DUI offender extractions, it can hurt your case if you are suing a Virginia police officer personally for a warrantless search under similar circumstances.
- Cilman v. Reeves (Fourth Circuit Court of Appeals)
- No Qualified Immunity in Traffic Misdemeanor Warrantless Search (FindLaw's Tenth Circuit blog)
- Refusal to Exit Car Doesn't Justify Warrantless Search (FindLaw's California Case Law blog)
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