Welsh v. Wisconsin
Decided on May 15, 1984; 466 US 740


A. Issues Discussed: Criminal Justice, 4th Amendment

B. Legal Question Presented:

Does the Fourth Amendment prohibit police from making a warrantless night entry of a person's home in order to arrest him/her for a nonjailable traffic offense?

If so, under what circumstances, does the Fourth Amendment prohibit police from making a warrantless night entry of a person's home in order to make an arrest for a nonjailable traffic offense?


A. Background:

On April 24, 1978, a witness observed Welsh (petitioner) driving erratically and eventually swerving off the road and coming to a stop in a field. Welsh left his car in the field and walked away from the scene. The witness, thereafter, informed the police that Welsh was either very inebriated or very sick.  The police, without obtaining a warrant, proceeded to the Welsh's nearby home and gained entry when his stepdaughter answered the door.  The police found Welsh lying naked in bed and arrested him for driving a motor vehicle while under the influence of an intoxicant in violation of a Wisconsin statute.

The statute provided that a first offense was a noncriminal violation subject to a civil forfeiture proceeding for a maximum fine of $200. Petitioner was taken to the police station, where he refused to submit to a breath-analysis test. Pursuant to Wisconsin statutes, an arrestee who refused to take the test risked a 60-day revocation of driving privileges.  Welsh requested a court hearing to determine whether his refusal was reasonable. Under Wisconsin law, a refusal to take a breath test was reasonable if the underlying arrest was not lawful.

The trial court, concluding that petitioner's arrest was lawful and that his refusal to take the breath test was therefore unreasonable, issued an order suspending petitioner's license. The Wisconsin Court of Appeals vacated the order, concluding that the warrantless arrest of petitioner in his home violated the Fourth Amendment because the State, although demonstrating probable cause to arrest, had not established the existence of exigent [urgent] circumstances. The Wisconsin Supreme Court reversed and the US Supreme Court granted certiorari.

B. Counsel of Record:
Opposing Side
Gordon Brewster Baldwin argued the cause for petitioner. With him on the briefs was Archie E. Simonson.
Stephen W. Kleinmaier, Assistant Attorney General of Wisconsin, argued the cause for respondent. With him on the brief was Bronson C. La Follette, Attorney General.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Charles F. Kahn, Jr., filed a brief for the ACLU's Wisconsin Civil Liberties Union Foundation as amicus curiae urging reversal. No amici curiae briefs were filed on behalf of Respondent.


"Before government agents may invade the sanctity of the home, the government must demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. Moreover, although no exigency is created simply because there is probable cause to believe that a serious crime has been committed, application of the exigent circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense has been committed.

Petitioner's warrantless arrest in the privacy of his own bedroom for a noncriminal traffic offense cannot be justified on the basis of the 'hot pursuit' doctrine, because there was no immediate or continuous pursuit of the petitioner from the scene of a crime, or on the basis of a threat to public safety, because petitioner had already arrived home and had abandoned his car at the scene of the accident. Nor can the arrest be justified as necessary to preserve evidence of petitioner's blood alcohol level. Even assuming that the underlying facts would support a finding of this exigent circumstance, given the fact that the State had chosen to classify the first offense for driving while intoxicated as a noncriminal, civil forfeiture offense for which no imprisonment was possible, a warrantless home arrest cannot be upheld simply because evidence of the petitioner's blood alcohol level might have dissipated while the police obtained a warrant... vacated and remanded."

Justice Vote: 6 Pro vs. 3 Con

  • Brennan, W. Pro  (Wrote the majority opinion)
  • Marshall, T. Pro  (Joined majority opinion)
  • Stevens, J. Pro  (Joined majority opinion)
  • O’Connor, S. Pro  (Joined majority opinion)
  • Powell, L. Pro  (Joined majority opinion)
  • Blackmun, H. Pro (Wrote concurring opinion)
  • Burger, W. Con  (Wrote separate statement)
  • White, B. Con  (Wrote dissenting opinion)
  • Rehnquist, W. Con  (Joined White’s dissent)

The ACLU filed as amicus curiae urging reversal. The United States Supreme Court vacated and remanded the Wisconsin Supreme Court's decision in a 6-3 vote, giving the ACLU an apparent win.