A Police Threat to “Kick Down the Door” Is an Arrest

 Posted on June 30, 2014 in Criminal Defense

police, arrest, Illinois criminal defense lawyer, Chicago criminal lawyer, criminal attorneyHow far may police go in pursuing a suspected drunk driver? Driving under the influence is a criminal offense in Illinois and police must follow certain procedures when detaining and charging a suspect. Failure to follow these procedures may lead a court to dismiss a drunk driving case even when there is substantial evidence of a defendant's guilt. A recent Illinois appeals court decision offers one example of how police error can affect a drunk driving case.

When Is a Suspect Under Arrest?

In June 2012, a woman returned home after attending a local festival in Joliet. Shortly thereafter, the woman's husband answered the door to find two police officers. The police were investigating a report of a hit-and-run accident. They asked to speak with the wife. The husband permitted the officers to enter the residence.

The woman was in the bathroom at the time. The officers heard her vomiting. The police demanded she open the door. One of the officers said, “If you don't open up the door, I am going to kick it in.” The woman complied and later told another officer that she had been drinking and got into an accident. She then agreed to go down to the police station, where she took and failed a sobriety test. The state then charged her with driving under the influence.

A trial court dismissed the criminal case against the woman, ruling the police had violated her rights under the Fourth Amendment to the United States Constitution. The Fourth Amendment requires police to obtain a judicial warrant before entering or searching private property. Here, the woman never gave police permission to enter her home. The state argued that her husband had given consent. The United States Supreme Court and Illinois courts have said that when two or more people share a residence, one tenant may permit police entry unless the other tenant is physically present and objects.

Although the woman did not verbally deny police permission to enter, the Appellate Court of Illinois, upholding the trial court's decision to dismiss the criminal case, said “locking the bathroom door serves the same purpose.” It was a clear demonstration by the defendant she did not want police to enter the house or speak with her absent a warrant.

Beyond the warrantless entry, the Appellate Court also found when the officer threatened to kick down the bathroom door, that constituted an “arrest,” because the woman, like any reasonable person, interpreted that statement as “a command, not request.” The state then argued that if the officer was arresting the defendant, it was in the “hot pursuit” of a person suspected of causing an accident. The Appellate Court rejected that argument as well. While the police may disregard the Fourth Amendment when “exigent circumstances” warrant, this was not one of those cases. That would only apply here if police had witnessed the accident and pursued the suspect as she fled the scene.

A case like this demonstrates the importance of having an experienced Illinois criminal defense attorney who will make sure no police error or abuse goes unchallenged. If you or a loved one is facing a DUI or other serious criminal charge, contact the Law Offices of Hal M. Garfinkel LLC, Chicago Criminal Defense Attorney today.
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