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State v. Bolte

Decided: July 12, 1989.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
RICHARD J. BOLTE, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 225 N.J. Super. 335 (1988).

For affirmance -- Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Stein, J.

Stein

[115 NJ Page 580] In this case the Court is called on to determine whether a police officer, in "hot pursuit' of a person suspected of numerous

motor vehicle and disorderly persons offenses, may make a warrantless entry into the suspect's home to effect an arrest.

In the early morning hours of April 6, 1987, a Moorestown police officer, after observing certain erratic driving behavior and trailing an automobile for approximately one mile, followed Richard Bolte, the driver, to his residence. Bolte exited his car and entered his home through a garage door. The officer followed him into the garage, then into the house and upstairs to the bedroom door where Bolte's wife was asleep. The officer informed Bolte that he was under arrest. Later, at the station house, Bolte refused to submit to a breathalyzer test.

Bolte was charged with a number of motor vehicle and disorderly persons offenses. Bolte moved to suppress the evidence of his refusal to submit to a breathalyzer test on the ground that it was the product of an unlawful arrest. The trial court denied Bolte's motion, holding that the "hot pursuit' and "exigent circumstances' exceptions to the fourth amendment warrant requirement justified the officer's intrusion into Bolte's home. The Appellate Division granted defendant's motion for leave to appeal, and reversed and remanded for entry of a suppression order. State v. Bolte, 225 N.J. Super. 335 (1988). The court held that the "hot pursuit' exception to the fourth amendment warrant requirement is limited to serious offenses, and concluded that even absent a "serious offense' limitation, "exigent circumstances' did not exist in this case. Id. at 339-40. The court concluded that there was "no "substantial police need"' for the warrantless invasion of Bolte's home. Id. at 341. This Court granted the State's motion for leave to appeal. We affirm.

I.

On April 6, 1987, at 1:40 a.m., Moorestown Police Officer William Liss began to follow an automobile after he noticed the automobile swerving on and off the road. When the automobile signalled a turn, the officer activated his lights and siren.

Officer Liss observed the driver look into his mirror, apparently ignore the presence of the patrol vehicle, and continue on. The automobile made four loops of the neighborhood, increasing its speed as it proceeded. The speed ranged from twenty miles per hour to approximately forty-eight miles per hour. According to Liss, as the speed increased, the operation of the vehicle became more erratic.

The automobile finally stopped in the driveway of a private residence. The driver, Richard Bolte, exited the car and entered his garage. Officer Liss followed Bolte to the garage, into the house and upstairs to the bedroom door where Liss informed Bolte that he was under arrest. Later, at the station house, Bolte refused to take a breathalyzer test, the evidence that he subsequently moved to suppress.

Bolte was charged with reckless driving, N.J.S.A. 39:4-96; driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2; speeding, N.J.S.A. 39:4-99; driving on an expired license, N.J.S.A. 39:3-10; failure to maintain a single lane, N.J.S.A. 39:4-88b; disorderly conduct, N.J.S.A. 2C:33-2a; eluding, N.J.S.A. 2C:29-2b; and resisting arrest, N.J.S.A. 2C:29-2a.

The parties submitted a stipulation to the facts of Bolte's arrest. In the trial court, defendant moved to suppress the evidence of his refusal to submit to a breathalyzer test on the basis that the arrest was unlawful.*fn1 The trial court denied the motion, agreeing with the State that the "hot pursuit' and "exigent circumstances' exceptions to the fourth amendment warrant requirement justified the officer's intrusion into Bolte's home because Bolte was eluding apprehension by Officer Liss and because of the possible dissipation of alcohol in his blood. The court maintained that "the practical problem' with defendant's

argument is that it "encourages people to disobey a police officer when they tell them to stop.'

In reversing and remanding for entry of a suppression order, the Appellate Division concluded that neither the "hot pursuit' nor "exigent circumstances' exception, jointly or separately, supported the denial of defendant's suppression motion. The court concluded that the United States Supreme Court opinions in Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967), and United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976), cases that recognized "hot pursuit' as a limited exception to the fourth amendment warrant requirement, were distinguishable from Bolte. 225 N.J. Super. at 335. The court maintained that the "hot pursuit' exception is applicable only to serious offenses. Ibid. The court observed that Hayden and Santana "both involved fleeing felons and were based not only on the concept of hot pursuit but also on separate emergent considerations which, when coupled with the pursuit, justified the warrantless intrusion.' Ibid. The court added:

[E]ven if we did not view the hot pursuit exception to be limited to serious offenses, we think that additional emergent factors such as those considered in Warden and Santana would have to be present to justify a warrantless entry. The State claims that the dissipation of blood alcohol is the additional factor present in this case. This argument must fail. As the State has properly conceded, Liss did not have probable cause to believe that defendant was guilty of DWI. Erratic driving alone is an insufficient basis for the necessary probable cause. [ Id. at 340.]

Thus, the court concluded that the State failed to justify the warrantless intrusion in this case. Ibid.

II.

The United States Supreme Court and this Court continue to adhere to the notion that warrantless searches or arrests in the home must be subjected to particularly careful scrutiny. The Supreme Court has recently reaffirmed the principle that only in extraordinary circumstances may a warrantless home arrest

or search be justified. See Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984).

In Silverman v. United States, 365 U.S. 505, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961), Justice Stewart wrote:

The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.

This Court has never held that a federal officer may without warrant and without consent physically entrench into a man's office or home, there secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard * * *

What the Court said long ago bears repeating now: "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of ...


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