source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD v. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRONWORKERS, LOCAL 480, AFL-CIO
    No. 83-1202.
    Decided May 14, 1984
   Per Curiam.

This case presents the question whether the Court of Appeals may modify an award of backpay by the National Labor Relations Board on the grounds that the Board failed promptly to specify the amounts of the award. As the decision of the Court of Appeals apparently is inconsistent with this Court’s precedents, we grant the petition for writ of certiorari and reverse.

I

Respondent, Local 480 of the International Association of Bridge, Structural & Ornamental Ironworkers, AFL-CIO, operates a hiring hall for construction workers in northern New Jersey. The lengthy procedural history of the present case begins in May 1978 with the Board’s finding that the Local had violated §§ 8(b)(1)(A) and (2) of the National Labor Relations Act, 29 U. S. C. §§ 158(b)(1)(A) and (2), by discriminating against nonmembers in its hiring hall referral practices. The Board ordered the Local to compensate the five charging parties and other “similarly situated” employees for earnings lost because of discrimination. Ironworkers, Local 480, 235 N. L. R. B. 1511 (1978). The lost earnings were to be calculated according to a formula established by the Board. On May 11, 1979, the Court of Appeals for the Third Circuit granted enforcement of the Board’s order. 598 F. 2d 611.

The Board then began preparation of a backpay specification. To identify employees who had been subject to discrimination, the Board’s Regional Office employed the General Services Administration to conduct a computer analysis of respondent’s records. The computer was to perform the laborious task of comparing the sign-up dates and qualifications of nonunion members with those of all union members who had been referred ahead of them. Until October 1980, the union slowed the process by refusing to permit photocopying of relevant records. Preparation of the backpay specification was further delayed when the Regional Office in February 1981 discovered a substantial computer error that would require that the entire analysis be performed again at great expense to the Board. After settlement negotiations proved fruitless, the Board authorized reanalysis of the computer data.

In April 1982, as no backpay specification yet had issued, the Local filed a motion seeking relief from that part of the Court of Appeals order of May 11, 1979, that directed back-pay for nonmember applicants “similarly situated” to the five charging parties. The Local urged that the lengthy delay in issuance of the specification demonstrated that the Board’s order would be impossible to implement. Further, the Local contended that it had ceased discriminatory activity, that no “similarly situated” workers had come forward to allege discrimination, and that the Board’s delay in resolving the case had impaired the Local’s operations. The Court of Appeals on May 13, 1982, denied the motion “without prejudice to renew such motion after 90 days.” App. to Pet. for Cert. 7a-8a.

The Local renewed the motion on September 29, 1982. The General Counsel at that time estimated that the backpay specifications for similarly situated discriminatees would be completed by April 1983. The Court of Appeals, however, ordered the Board to enter its formal backpay specification by December 31, 1982.

To comply with this order, the Board set about preparing a separate list of employees who had suffered discrimination at respondent’s hiring hall. In estimating the amount of backpay due to each employee, it was necessary for the Board to obtain information as to earnings that was available only from the Ironworkers Pension and Welfare Fund. The Fund refused to provide the Board with this information without a subpoena or court order. Uncertain that such litigation successfully could be concluded in time to meet the deadline set by court order, the Board prepared a specification based upon projections from records of earnings that it had available. The Board submitted its Specification and Notice of Hearing on December 21, 1982, and set the case for May 16,1983. The Board later obtained the Fund’s earnings records pursuant to an investigatory subpoena and revised its specification to incorporate complete information on actual earnings. The revision decreased by one-fourth the Local’s liability.

On February 25,1983, respondent filed its third motion for relief from the original backpay judgment, requesting the court to require backpay only for named parties or to terminate the proceedings altogether. The Local contended that the Board’s specification of December 21, 1982, because it was not based upon actual earnings, was inconsistent with the Board’s rules and with the Board’s original backpay order. Further, the Local argued that the specification was “punitive” because the total liability exceeded the Local’s ability to pay. On July 27,1983, the Court of Appeals modified the Board’s order to require that the Local tender back-pay only to the charging parties and only as calculated by the backpay specification of December 21, 1982.

II

The Court of Appeals gave as its justification for modifying the Board’s order “the length of time that elapsed since the entry of [the court’s] original judgment.” App. to Pet. for Cert. la. It is well established, however, that the Court of Appeals may not refuse to enforce a backpay order merely because of the Board’s delay subsequent to that order in formulating a backpay specification. NLRB v. Rutter-Rex Mfg. Co., 396 U. S. 258 (1969).

The present case in some respects differs from Rutter-Rex. In Rutter-Rex, the Court of Appeals cut off the accrual of backpay at an earlier date than had the Board. Id., at 263. In the present case, the Court of Appeals has limited the class of employees to whom backpay may be awarded and has prohibited the Board from amending its backpay specification as the Board’s regulations would permit, see 29 CFR § 102.57 (1983). Nonetheless, the principle of Rutter-Rex remains applicable: “[T]he Board is not required to place the consequences of its own delay, even if inordinate, upon wronged employees. . . .” 396 U. S., at 265. By restricting the beneficiaries of the Board’s remedy and abridging procedures lawfully established by the Board for determining the amount of backpay, the order under review punishes employees for the Board’s nonfeasance. This Rutter-Rex forbids.

It is not entirely clear that the order of the Court of Appeals was premised simply upon the Board’s delay. The text of the order only hints at the court’s reasoning. Respondent had argued before the Court of Appeals that the Board’s long delay further demonstrated the impossibility of identifying the employees who had been subject to discrimination and of performing the calculations required by the Board’s backpay formula. Respondent also had contended that the Board’s specification of December 21, 1982, showed that the Board’s order was “punitive” and “confiscatory.” App. to Pet. for Cert. 63a. We do not consider whether the Court of Appeals on these grounds may modify its original judgment enforcing the Board's order. Nor do we foreclose challenges that might be raised to the conduct or outcome of the supplemental backpay proceedings.

But as it appears that the Court of Appeals may have rested the judgment under review simply upon the failure of the Board to act promptly, that judgment must be reversed and the case remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Marshall dissents from this opinion deciding this case without briefing on the merits or oral argument.

       Section 158(b) prohibits various unfair labor practices by labor organizations. That subsection provides in pertinent part:
      “It shall be an unfair labor practice for a labor organization or its agents—
      (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title . . . .”
      “(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.”
      Section 158(a)(3) prohibits “discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” Section 157, as relevant here, protects the right to refrain from union activity.
      A 1972 consent decree generally obligates respondent Local to refer applicants to jobs in order of registration at the hiring hall. The Local unlawfully discriminated in favor of its own members by referring them for steward positions instead of equally qualified and previously registered nonmembers.

       Under the formula, “the overall earnings of all applicants, members and nonmembers, seeking employment through [the] referral system would be divided by the total number of ironworkers who worked out of the hiring hall, taking into account the net earnings of the individual discriminatees during the relevant period.” App. to Pet. for Cert. 21a-22a.

       The Board prepares a backpay specification after issuance of an unfair labor practice order that awards backpay. The specification shows in detail how backpay is computed and serves to initiate supplemental administrative proceedings by giving notice of the amount allegedly due. See generally 29 CFR §§ 102.52-102.59 (1983).

         The analysis was further complicated by the Board’s decision to consolidate the backpay specification for the present case with those for four similar cases of discrimination by other New Jersey locals of the International Ironworkers Association.

       The court’s order stated:
      “[A]fter a review of the various orders entered in this matter, and the length of time that elapsed since the entry of the original judgment of this Court, it is ordered that:
      “1. Any backpay specifications not made by December 31, 1982, are hereby barred and are not to be considered. See order of court dated December 1, 1982.
      “2. Payment in full by the Union of any claims asserted on behalf of [the charging parties] shall be considered compliance with paragraph 1 of this order.” App. to Pet. for Cert. 1a-2a.

       Such a result is anomalous where there is some suggestion, as in the present case, that the wrongdoing union or employer itself contributed to delay by obstructing the Board’s processes. Yet, we must acknowledge that one must be sympathetic to respondent union’s loss of patience with what appears to be the Board’s serious delay.

       This case also differs from Rutter-Rex in that the Court of Appeals here had issued an order that set a deadline for entry of a formal backpay specification. Rutter-Rex recognized the power of the courts of appeals to compel Board action that has been “unreasonably delayed.” 396 U. S., at 266, and n. 3. Cf. Silverman v. NLRB, 543 F. 2d 428 (CA2 1976) (order mandating timely completion of backpay proceedings). In the present case, however, the Board complied with the court’s deadline. Nor does it appear that the Board, by subsequently amending the specification, came into noncompliance. The Court of Appeals order of December 1,1982, did not limit in any way the authority of the Board to amend the specifications during the course of backpay proceedings. It was sufficient that the specification initiated these proceedings.


author: Per Curiam. Justice Stevens,

text:
    MASSACHUSETTS v. UPTON
    No. 83-1338.
    Decided May 14, 1984
   Per Curiam.

Last Term, in Illinois v. Gates, 462 U. S. 213 (1983), we held that the Fourth Amendment’s requirement of probable cause for the issuance of a warrant is to be applied, not according to a fixed and rigid formula, but rather in the light of the “totality of the circumstances” made known to the magistrate. We also emphasized that the task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant. In this case, the Supreme Judicial Court of Massachusetts, interpreting the probable-cause requirement of the Fourth Amendment to the United States Constitution, continued to rely on the approach set forth in cases such as Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969). 390 Mass. 562, 458 N. E. 2d 717 (1983). Since this approach was rejected in Gates, we grant the petition for certiorari in this case and reverse the judgment of the Supreme Judicial Court.

At noon on September 11, 1980, Lieutenant Beland of the Yarmouth Police Department assisted in the execution of a search warrant for a motel room reserved by one Richard Kelleher at the Snug Harbor Motel in West Yarmouth. The search produced several items of identification, including credit cards, belonging to two persons whose homes had recently been burglarized. Other items taken in the burglaries, such as jewelry, silver, and gold, were not found at the motel.

At 3:20 p. m. on the same day, Lieutenant Beland received a call from an unidentified female who told him that there was “a motor home full of stolen stuff” parked behind #5 Jefferson Ave., the home of respondent George Upton and his mother. She stated that the stolen items included jewelry, silver, and gold. As set out in Lieutenant Beland’s affidavit in support of a search warrant:

“She further stated that George Upton was going to move the motor home any time now because of the fact that Ricky Kelleher’s motel room was raided and that George [Upton] had purchased these stolen items from Ricky Kelleher. This unidentified female stated that she had seen the stolen items but refused to identify herself because ‘he’ll kill me,’ referring to George Upton. I then told this unidentified female that I knew who she was, giving her the name of Lynn Alberico, who I had met on May 16, 1980, at George Upton’s repair shop off Summer St., in Yarmouthport. She was identified to me by George Upton as being his girlfriend, Lynn Alberico. The unidentified female admitted that she was the girl that I had named, stating that she was surprised that I knew who she was. She then told me that she’d broken up with George Upton and wanted to bum him. She also told me that she wouldn’t give me her address or phone number but that she would contact me in the future, if need be.” See 390 Mass., at 564 n. 2, 458 N. E. 2d, at 718, n. 2.

Following the phone call, Lieutenant Beland went to Upton’s house to verify that a motor home was parked on the property. Then, while other officers watched the premises, Lieutenant Beland prepared the application for a search warrant, setting out all the information noted above in an accompanying affidavit. He also attached the police reports on the two prior burglaries, along with lists of the stolen property. A Magistrate issued the warrant, and a subsequent search of the motor home produced the items described by the caller and other incriminating evidence. The discovered evidence led to Upton’s conviction on multiple counts of burglary, receiving stolen property, and related crimes.

On appeal to the Supreme Judicial Court, respondent argued that the search warrant was not supported by a sufficient showing of “probable cause” under the Fourth Amendment. With respect to our Gates opinion, that court said:

“It is not clear that the Gates opinion has announced a significant change in the appropriate Fourth Amendment treatment of applications for search warrants. Looking at what the Court did on the facts before it, and rejecting an expansive view of certain general statements not essential to the decision, we conclude that the Gates opinion deals principally with what corroboration of an informant’s tip, not adequate by itself, will be sufficient to meet probable cause standards.” 390 Mass., at 568, 458 N. E. 2d, at 720.

Prior to Gates, the Fourth Amendment was understood by many courts to require strict satisfaction of a “two-pronged test” whenever an affidavit supporting the issuance of a search warrant relies on an informant’s tip. It was thought that the affidavit, first, must establish the “basis of knowledge” of the informant — the particular means by which he came by the information given in his report; and, second, that it must provide facts establishing either the general “veracity” of the informant or the specific “reliability” of his report in the particular case. The Massachusetts court apparently viewed Gates as merely adding a new wrinkle to this two-pronged test: where an informant’s veracity and/or basis of knowledge are not sufficiently clear, substantial corroboration of the tip may save an otherwise invalid warrant.

“We do not view the Gates opinion as decreeing a stand-ardless ‘totality of the circumstances’ test. The informant’s veracity and the basis of his knowledge are still important but, where the tip is adequately corroborated, they are not elements indispensible [sic] to a finding of probable cause. It seems that, in a given case, the corroboration may be so strong as to satisfy probable cause in the absence of any other showing of the informant’s ‘veracity’ and any direct statement of the ‘basis of [his] knowledge.’” 390 Mass., at 568, 458 N. E. 2d, at 721.

Turning to the facts of this case, the Massachusetts court reasoned, first, that the basis of the informant’s knowledge was not “forcefully apparent” in the affidavit. Id., at 569, 458 N. E. 2d, at 721. Although the caller stated that she had seen the stolen items and that they were in the motor home, she did not specifically state that she saw them in the motor home. Second, the court concluded that “[n]one of the common bases for determining the credibility of an informant or the reliability of her information is present here.” Ibid. The caller was not a “tried and true” informant, her statement was not against penal interest, and she was not an “ordinary citizen” providing information as a witness to a crime. “She was an anonymous informant, and her unverified assent to the suggestion that she was Lynn Alberico does not take her out of that category.” Id., at 570, 458 N. E. 2d, at 722.

Finally, the court felt that there was insufficient corroboration of the informant’s tip to make up for its failure to satisfy the two-pronged test. The facts that tended to corroborate the informant’s story were that the motor home was where it was supposed to be, that the caller knew of the motel raid which took place only three hours earlier, and that the caller knew the name of Upton and his girlfriend. But, much as the Supreme Court of Illinois did in the opinion we reviewed in Gates, the Massachusetts court reasoned that each item of corroborative evidence either related to innocent, non-suspicious conduct or related to an event that took place in public. To sustain the warrant, the court concluded, more substantial corroboration was needed. The court therefore held that the warrant violated the Fourth Amendment to the United States Constitution and reversed respondent’s convictions.

We think that the Supreme Judicial Court of Massachusetts misunderstood our decision in Gates. We did not merely refine or qualify the “two-pronged test.” We rejected it as hypertechnical and divorced from “the factual and practical considerations of everday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U. S. 160, 175 (1949). Our statement on that score was explicit. “[W]e conclude that it is wiser to abandon the ‘two-pronged test’ established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations.” Gates, 462 U. S., at 238. This “totality-of-the-circumstances” analysis is more in keeping with the “practical, common-sense decision” demanded of the magistrate. Ibid.

We noted in Gates that “the ‘two-pronged test’ has encouraged an excessively technical dissection of informants’ tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate.” Id., at 234-235 (footnote omitted). This, we think, is the error of the Massachusetts court in this case. The court did not consider Lieutenant Beland’s affidavit in its entirety, giving significance to each relevant piece of information and balancing the relative weights of all the various indicia of reliability (and unreliability) attending the tip. Instead, the court insisted on judging bits and pieces of information in isolation against the artificial standards provided by the two-pronged test.

The Supreme Judicial Court also erred in failing to grant any deference to the decision of the Magistrate to issue a warrant. Instead of merely deciding whether the evidence viewed as a whole provided a “substantial basis” for the Magistrate’s finding of probable cause, the court conducted a de novo probable-cause determination. We rejected just such after-the-fact, de novo scrutiny in Gates. Id., at 236. “A grudging or negative attitude by reviewing courts toward warrants,” United States v. Ventresca, 380 U. S. 102, 108 (1965), is inconsistent both with the desire to encourage use of the warrant process by police officers and with the recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the ease. Gates, supra, at 237, n. 10. A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.

Examined in light of Gates, Lieutenant Beland’s affidavit provides a substantial basis for the issuance of the warrant. No single piece of evidence in it is conclusive. But the pieces fit neatly together and, so viewed, support the Magistrate’s determination that there was “a fair probability that contraband or evidence of a crime” would be found in Upton’s motor home. 462 U. S., at 238. The informant claimed to have seen the stolen goods and gave a description of them which tallied with the items taken in recent burglaries. She knew of the raid on the motel room — which produced evidence connected to those burglaries — and that the room had been reserved by Kelleher. She explained the connection between Kelleher’s motel room and the stolen goods in Upton’s motor home. And she provided a motive both for her attempt at anonymity — fear of Upton’s retaliation — and for furnishing the information — her recent breakup with Upton and her desire “to burn him.”

The Massachusetts court dismissed Lieutenant Beland’s identification of the caller as a mere “unconfirmed guess.” 390 Mass., at 569, n. 6, 458 N. E. 2d, at 721, n. 6. But “probable cause does not demand the certainty we associate with formal trials.” Gates, supra, at 246. Lieutenant Beland noted that the caller “admitted that she was the girl I had named, stating that she was surprised that I knew who she was.” It is of course possible that the caller merely adopted Lieutenant Beland’s suggestion as “a convenient cover for her true identity.” 390 Mass., at 570, 458 N. E. 2d, at 722. But given the caller’s admission, her obvious knowledge of who Alberico was and how she was connected with Upton, and her explanation of her motive in calling, Lieutenant Beland’s inference appears stronger than a mere uninformed and unconfirmed guess. It is enough that the inference was a reasonable one and conformed with the other pieces of evidence making up the total showing of probable cause.

In concluding that there was probable cause for the issuance of this warrant, the Magistrate can hardly be accused of approving a mere “hunch” or a bare recital of legal conclusions. The informant’s story and the surrounding facts possessed an internal coherence that gave weight to the whole. Accordingly, we conclude that the information contained in Lieutenant Beland’s affidavit provided a sufficient basis for the “practical, common-sense decision” of the Magistrate. “Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” United States v. Ventresca, supra, at 109.

The judgment of the Supreme Judicial Court of Massachusetts is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Brennan and Justice Marshall dissent from the summary disposition of this case and would deny the petition for certiorari.

Justice Stevens,

concurring in the judgment.

In my opinion the judgment of the Supreme Judicial Court of Massachusetts reflects an error of a more fundamental character than the one this Court corrects today. It rested its decision on the Fourth Amendment to the United States Constitution without telling us whether the warrant was valid as a matter of Massachusetts law. It has thereby increased its own burdens as well as ours. For when the case returns to that court, it must then review the probable-cause issue once again and decide whether or not a violation of the state constitutional protection against unreasonable searches and seizures has occurred. If such a violation did take place, much of that court’s first opinion and all of this Court’s opinion are for naught. If no such violation occurred, the second proceeding in that court could have been avoided by a ruling to that effect when the case was there a year ago.

If the Magistrate had violated a state statute when he issued the warrant, surely the State Supreme Judicial Court would have so held and thereby avoided the necessity of deciding a federal constitutional question. I see no reason why it should not have followed the same sequence of analysis when an arguable violation of the State Constitution is disclosed by the record. As the Oregon Supreme Court has stated:

“The proper sequence is to analyze the state’s law, including its constitutional law, before reaching a federal constitutional claim. This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law.” Sterling v. Cupp, 290 Ore. 611, 614, 625 P. 2d 123, 126 (1981).

The maintenance of the proper balance between the respective jurisdictions of state and federal courts is always a difficult task. In recent years I have been concerned by what I have regarded as an encroachment by this Court into territory that should be reserved for state judges. See, e. g., Michigan v. Long, 463 U. S. 1032, 1065 (1983) (Stevens, J., dissenting); South Dakota v. Neville, 459 U. S. 553, 566 (1983) (Stevens, J., dissenting); Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 477-489 (1981) (STEVENS, J., dissenting); Idaho Department of Employment v. Smith, 434 U. S. 100, 103-105 (1977) (Stevens, J., dissenting in part). The maintenance of this balance is, however, a two-way street. It is also important that state judges do not unnecessarily invite this Court to undertake review of state-court judgments. I believe the Supreme Judicial Court of Massachusetts unwisely and unnecessarily invited just such review in this case. Its judgment in this regard reflects a misconception of our constitutional heritage and the respective jurisdictions of state and federal courts.

The absence of a Bill of Rights in the Constitution proposed by the Federal Constitutional Convention of 1787 was a major objection to the Convention’s proposal. See, e. g., 12 The Papers of Thomas Jefferson 438 (Boyd ed. 1955). In defense of the Convention’s plan Alexander Hamilton argued that the enumeration of certain rights was not only unnecessary, given that such rights had not been surrendered by the people in their grant of limited powers to the Federal Government, but “would even be dangerous” on the ground that enumerating certain rights could provide a “plausible pretense” for the Government to claim powers not granted in derogation of the people’s rights. The Federalist No. 84, pp. 573, 574 (Ford ed. 1898) (A. Hamilton). The latter argument troubled the First Congress during deliberations on the Bill of Rights, and its solution became the Ninth Amendment. See 1 Annals of Congress 439 (1789) (remarks of Rep. Madison).

The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” To the extent that the Bill of Rights is applicable to the States under the Fourteenth Amendment, the principle embodied in the Ninth Amendment is applicable as well. The Ninth Amendment, it has been said, states but a truism. But that truism goes to the very core of the constitutional relationship between the individual and governmental authority, and, indeed, between sovereigns exercising authority over the individual.

In my view, the court below lost sight of this truism, and permitted the enumeration of certain rights in the Fourth Amendment to disparage the rights retained by the people of Massachusetts under Art. 14 of the Massachusetts Declaration of Rights. It is of course not my role to state what rights Art. 14 confers upon the people of Massachusetts; under our system of federalism, only Massachusetts can do that. The state court refused to perform that function, however, and instead strained to rest its judgment on federal constitutional grounds.

Whatever protections Art. 14 does confer are surely disparaged when the Supreme Judicial Court of Massachusetts refuses to adjudicate their very existence because of the enumeration of certain rights in the Constitution of the United States. The rights conferred by Art. 14 may not only exceed the rights conferred by the Fourth Amendment as construed by this Court in Gates, but indeed may exceed the rights conferred by the Fourth Amendment as construed by the state court. The dissent followed the approach of the majority to its logical conclusion, stating that there “appears to be no logical basis, and no support in the case law, for interpreting the term ‘cause’ in art. 14 differently from the ‘probable cause’ requirement of the Fourth Amendment.” 390 Mass. 562, 580, 458 N. E. 2d 717, 727 (1983). “The right question,” however, “is not whether a state’s guarantee is the same as or broader than its federal counterpart as interpreted by the Supreme Court. The right question is what the state’s guarantee means and how it applies to the case at hand. The answer may turn out the same as it would under federal law. The state’s law may prove to be more protective than federal law. The state law also may be less protective. In that case the court must go on to decide the claim under federal law, assuming it has been raised.” Linde, E Pluribus— Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 179 (1984).

It must be remembered that for the first century of this Nation’s history, the Bill of Rights of the Constitution of the United States was solely a protection for the individual in relation to federal authorities. State Constitutions protected the liberties of the people of the several States from abuse by-state authorities. The Bill of Rights is now largely applicable to state authorities and is the ultimate guardian of individual rights. The States in our federal system, however, remain the primary guardian of the liberty of the people. The Massachusetts court, I believe, ignored this fundamental premise of our constitutional system of government. In doing so, it made an ill-advised entry into the federal domain.

Accordingly, I concur in the Court’s judgment.

      “If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the Warrant Clause that might develop at the time of the search. In addition, the possession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct, by assuring ‘the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.’ United States v. Chadwick, 433 U. S. 1, 9 (1977).” Gates, 462 U. S., at 236.

       Indeed, that court rather pointedly refused to consider whether the search violated the provisions of Art. 14 of the Massachusetts Declaration of Rights. It stated, in part:
      “If we have correctly construed the significance of Illinois v. Gates, the Fourth Amendment standards for determining probable cause to issue a search warrant have not been made so much less clear and so relaxed as to compel us to try our hand at a definition of standards under art. 14. If we have misassessed the consequences of the Gates opinion and in fact the Gates standard proves to be unacceptably shapeless and permissive, this court may have to define the protections guaranteed to the people against unreasonable searches and seizures by art. 14, and the consequences of the violation of those protections.” 390 Mass. 562, 573-574, 458 N. E. 2d 717, 724 (1983).

       Cf. South Dakota v. Opperman, 428 U. S. 364 (1976) (rev’g 89 S. D. 25, 228 N. W. 2d 152), on remand, 247 N. W. 2d 673 (1976) (judgment reinstated on state grounds); South Dakota v. Neville, 459 U. S. 553 (1983) (rev’g 312 N. W. 2d 723 (1981)), on remand, 346 N. W. 2d 425 (1984) (judgment reinstated in part on state grounds).

       See also State v. Kennedy, 295 Ore. 260, 666 P. 2d 1316 (1983), and cases cited therein, id., at 262, 666 P. 2d, at 1318; Hewitt v. State Accident Ins. Fund Corp., 294 Ore. 33, 41-42, 653 P. 2d 970, 975 (1982).


author: Justice Brennan Justice Blackmun, Justice White,

text:
    WELSH v. WISCONSIN
    No. 82-5466.
    Argued October 5, 1983
    Decided May 15, 1984

      Brennan, J., delivered the opinion of the Court, in which Marshall, Blackmun, Powell, Stevens, and O’Connor, JJ., joined. Blackmun, J., filed a concurring opinion, post, p. 755. Burger, C. J., filed a separate statement, post, p. 755. White, J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 756.

      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.

        Charles F. Kahn, Jr., filed a brief for the Wisconsin Civil Liberties Union Foundation as amicus curiae urging reversal.

   Justice Brennan

delivered the opinion of the Court.

Payton v. New York, 445 U. S. 573 (1980), held that, absent probable cause and exigent circumstances, warrantless arrests in the home are prohibited by the Fourth Amendment. But the Court in that case explicitly refused “to consider the sort of emergency or dangerous situation, described in our cases as ‘exigent circumstances,’ that would justify a warrantless entry into a home for the purpose of either arrest or search.” Id., at 583. Certiorari was granted in this case to decide at least one aspect of the unresolved question: whether, and if so under what circumstances, the Fourth Amendment prohibits the police from making a warrantless night entry of a person’s home in order to arrest him for a nonjailable traffic offense.

h — <

A

Shortly before 9 o’clock on the rainy night of April 24,1978, a lone witness, Randy Jablonic, observed a car being driven erratically. After changing speeds and veering from side to side, the car eventually swerved off the road and came to a stop in an open field. No damage to any person or property occurred. Concerned about the driver and fearing that the car would get back on the highway, Jablonic drove his truck up behind the car so as to block it from returning to the road. Another passerby also stopped at the scene, and Jablonic asked her to call the police. Before the police arrived, however, the driver of the car emerged from his vehicle, approached Jablonic’s truck, and asked Jablonic for a ride home. Jablonic instead suggested that they wait for assistance in removing or repairing the car. Ignoring Jablonic’s suggestion, the driver walked away from the scene.

A few minutes later, the police arrived and questioned Jablonic. He told one officer what he had seen, specifically noting that the driver was either very inebriated or very sick. The officer checked the motor vehicle registration of the abandoned car and learned that it was registered to the petitioner, Edward G. Welsh. In addition, the officer noted that the petitioner’s residence was a short distance from the scene, and therefore easily within walking distance.

Without securing any type of warrant, the police proceeded to the petitioner’s home, arriving about 9 p. m. When the petitioner’s stepdaughter answered the door, the police gained entry into the house. Proceeding upstairs to the petitioner’s bedroom, they found him lying naked in bed. At this point, the petitioner was placed under arrest for driving or operating a motor vehicle while under the influence of an intoxicant, in violation of Wis. Stat. §346.63(1) (1977). The petitioner was taken to the police station, where he refused to submit to a breath-analysis test.

B

As a result of these events, the petitioner was subjected to two separate but related proceedings: one concerning his refusal to submit to a breath test and the other involving the alleged code violation for driving while intoxicated. Under the Wisconsin Vehicle Code in effect in April 1978, one arrested for driving while intoxicated under §346.63(1) could be requested by a law enforcement officer to provide breath, blood, or urine samples for the purpose of determining the presence or quantity of alcohol. Wis. Stat. §343.305(1) (1975). If such a request was made, the arrestee was required to submit to the appropriate testing or risk a revocation of operating privileges. Cf. South Dakota v. Neville, 459 U. S. 553 (1983) (admission into evidence of a defendant’s refusal to submit to a blood-alcohol test does not offend constitutional right against self-incrimination). The arrestee could challenge the officer’s request, however, by refusing to undergo testing and then asking for a hearing to determine whether the refusal was justified. If, after the hearing, it was determined that the refusal was not justified, the arrest-ee’s operating privileges would be revoked for 60 days.

The statute also set forth specific criteria to be applied by a court when determining whether an arrestee’s refusal to take a breath test was justified. Included among these criteria was a requirement that, before revoking the arrestee’s operating privileges, the court determine that “the refusal. . . to submit to a test was unreasonable.” § 343.305(2)(b)(5) (1975). It is not disputed by the parties that an arrestee’s refusal to take a breath test would be reasonable, and therefore operating privileges could not be revoked, if the underlying arrest was not lawful. Indeed, state law has consistently provided that a valid arrest is a necessary prerequisite to the imposition of a breath test. See Scales v. State, 64 Wis. 2d 485, 494, 219 N. W. 2d 286, 292 (1974). Although the statute in effect in April 1978 referred to reasonableness, the current version of §343.305 explicitly recognizes that one of the issues that an arrestee may raise at a refusal hearing is “whether [he] was lawfully placed under arrest for violation of s.346.63(l).» §§343.306(3)(b)(5)(a), (8)(b) (1981-1982). See also 67 Op. Wis. Atty. Gen. No. 93-78 (1978) (“statutory scheme . . . contemplates that a lawful arrest be made prior to a request for submission to a test”).

Separate statutory provisions control the penalty that might be imposed for the substantive offense of driving while intoxicated. At the time in question, the Vehicle Code provided that a first offense for driving while intoxicated was a noncriminal violation subject to a civil forfeiture proceeding for a maximum fine of $200; a second or subsequent offense in the previous five years was a potential misdemeanor that could be punished by imprisonment for up to one year and a maximum fine of $500. Wis. Stat. §346.65(2) (1975). Since that time, the State has made only minor amendments to these penalty provisions. Indeed, the statute continues to categorize a first offense as a civil violation that allows for only a monetary forfeiture of no more than $300. §346.65(2)(a) (Supp. 1983-1984). See State v. Albright, 98 Wis. 2d 663, 672-673, 298 N. W. 2d 196, 202 (App. 1980).

C

As noted, in this case the petitioner refused to submit to a breath test; he subsequently filed a timely request for a refusal hearing. Before that hearing was held, however, the State filed a criminal complaint against the petitioner for driving while intoxicated. The petitioner responded by filing a motion to dismiss the complaint, relying on his contention that the underlying arrest was invalid. After receiving evidence at a hearing on this motion in July 1980, the trial court concluded that the criminal complaint would not be dismissed because the existence of both probable cause and exigent circumstances justified the warrantless arrest. The decision at the refusal hearing, which was not held until September 1980, was therefore preordained. In fact, the primary issue at the refusal hearing — whether the petitioner acted reasonably in refusing to submit to a breath test because he was unlawfully placed under arrest, see supra, at 744-746 — had already been determined two months earlier by the same trial court.

As expected, after the refusal hearing, the trial court concluded that the arrest of the petitioner was lawful and that the petitioner’s refusal to take the breath test was therefore unreasonable. Accordingly, the court issued an order suspending the petitioner’s operating license for 60 days. On appeal, the suspension order was vacated by the Wisconsin Court of Appeals. See State v. Welsh, No. 80-1686 (May 26, 1981), App. 114-125. Contrary to the trial court, the appellate court concluded that the warrantless arrest of the petitioner in his home violated the Fourth Amendment because the State, although demonstrating probable cause to arrest, had not established the existence of exigent circumstances. The petitioner’s refusal to submit to a breath test was therefore reasonable. The Supreme Court of Wisconsin in turn reversed the Court of Appeals, relying on the existence of three factors that it believed constituted exigent circumstances: the need for “hot pursuit” of a suspect, the need to prevent physical harm to the offender and the public, and the need to prevent destruction of evidence. See 108 Wis. 2d 319, 336-338, 321 N. W. 2d 245, 254-255 (1982). Because of the important Fourth Amendment implications of the decision below, we granted certiorari. 459 U. S. 1200 (1983).

II

It is axiomatic that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court, 407 U. S. 297, 313 (1972). And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. See Johnson v. United States, 333 U. S. 10, 13-14 (1948). It is not surprising, therefore, that the Court has recognized, as “a ‘basic principle of Fourth Amendment law[,]’ that searches and seizures inside a home without a warrant are presumptively unreasonable. ” Payton v. New York, 445 U. S., at 586. See Coolidge v. New Hampshire, 403 U. S. 443, 474-475 (1971) (“a search or seizure carried out on a suspect’s premises without a warrant is per se unreasonable, unless the police can show. . . the presence of ‘exigent circumstances’ ”). See also Michigan v. Clifford, 464 U. S. 287, 296-297 (1984) (plurality opinion); Steagald v. United States, 451 U. S. 204, 211-212 (1981); McDonald v. United States, 335 U. S. 451, 456 (1948); Johnson v. United States, supra, at 13-15; Boyd v. United States, 116 U. S. 616, 630 (1886).

Consistently with these long-recognized principles, the Court decided in Payton v. New York, supra, that warrant-less felony arrests in the home are prohibited by the Fourth Amendment, absent probable cause and exigent circumstances. Id., at 583-590. At the same time, the Court declined to consider the scope of any exception for exigent circumstances that might justify warrantless home arrests, id., at 583, thereby leaving to the lower courts the initial application of the exigent-circumstances exception. Prior decisions of this Court, however, have emphasized that exceptions to the warrant requirement are “few in number and carefully delineated,” United States v. United States District Court, supra, at 318, and that the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests. Indeed, the Court has recognized only a few such emergency conditions, see, e. g., United States v. Santana, 427 U. S. 38, 42-43 (1976) (hot pursuit of a fleeing felon); Warden v. Hayden, 387 U. S. 294, 298-299 (1967) (same); Schmerber v. California, 384 U. S. 757, 770-771 (1966) (destruction of evidence); Michigan v. Tyler, 436 U. S. 499, 509 (1978) (ongoing fire), and has actually applied only the “hot pursuit” doctrine to arrests in the home, see Santana, supra.

Our hesitation in finding exigent circumstances, especially when warrantless arrests in the home are at issue, is particularly appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. See Payton v. New York, supra, at 586. When the government’s interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.

This is not a novel idea. Writing in concurrence in McDonald v. United States, 335 U. S. 451 (1948), Justice Jackson explained why a finding of exigent circumstances to justify a warrantless home entry should be severely restricted when only a minor offense has been committed:

“Even if one were to conclude that urgent circumstances might justify a forced entry without a warrant, no such emergency was present in this case. This method of law enforcement displays a shocking lack of all sense of proportion. Whether there is reasonable necessity for a search without waiting to obtain a warrant certainly depends somewhat upon the gravity of the offense thought to be in progress as well as the hazards of the method of attempting to reach it.. . . It is to me a shocking proposition that private homes, even quarters in a tenement, may be indiscriminately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it. While I should be human enough to apply the letter of the law with some indulgence to officers acting to deal with threats or crimes of violence which endanger life or security, it is notable that few of the searches found by this Court to be unlawful dealt with that category of crime. . . . While the enterprise of parting fools from their money by the ‘numbers’ lottery is one that ought to be suppressed, I do not think its suppression is more important to society than the security of the people against unreasonable searches and seizures. When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant.” Id., at 459-460 (footnote omitted).

Consistently with this approach, the lower courts have looked to the nature of the underlying offense as an important factor to be considered in the exigent-circumstances calculus. In a leading federal case defining exigent circumstances, for example, the en banc United States Court of Appeals for the District of Columbia Circuit recognized that the gravity of the underlying offense was a principal factor to be weighed. Dorman v. United States, 140 U. S. App. D. C. 313, 320, 435 F. 2d 385, 392 (1970). Without approving all of the factors included in the standard adopted by that court, it is sufficient to note that many other lower courts have also considered the gravity of the offense an important part of their constitutional analysis.

For example, courts have permitted warrantless home arrests for major felonies if identifiable exigencies, independent of the gravity of the offense, existed at the time of the arrest. Compare United States v. Campbell, 581 F. 2d 22 (CA2 1978) (allowing warrantless home arrest for armed robbery when exigent circumstances existed), with Commonwealth v. Williams, 483 Pa. 293, 396 A. 2d 1177 (1978) (disallowing war-rantless home arrest for murder due to absence of exigent circumstances). But of those courts addressing the issue, most have refused to permit warrantless home arrests for nonfelonious crimes. See, e. g., State v. Guertin, 190 Conn. 440, 453, 461 A. 2d 963, 970 (1983) (“The [exigent-circumstances] exception is narrowly drawn to cover cases of real and not contrived emergencies. The exception is limited to the investigation of serious crimes; misdemeanors are excluded”); People v. Strelow, 96 Mich. App. 182, 190-193, 292 N. W. 2d 517, 521-522 (1980). See also People v. Sanders, 59 Ill. App. 3d 6, 374 N. E. 2d 1315 (1978) (burglary without weapons not grave offense of violence for this purpose); State v. Bennett, 295 N. W. 2d 5 (S. D. 1980) (distribution of controlled substances not a grave offense for these purposes). But cf. State v. Penas, 200 Neb. 387, 263 N. W. 2d 835 (1978) (allowing warrantless home arrest upon hot pursuit from commission of misdemeanor in the officer’s presence; decided before Payton); State v. Niedermeyer, 48 Ore. App. 665, 617 P. 2d 911 (1980) (allowing warrantless home arrest upon hot pursuit from commission of misdemeanor in the officer’s presence). The approach taken in these cases should not be surprising. Indeed, without necessarily approving any of these particular holdings or considering every possible factual situation, we note that it is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor.

We therefore conclude that the common-sense approach utilized by most lower courts is required by the Fourth Amendment prohibition on “unreasonable searches and seizures,” and hold that 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, see Payton, 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, such as the kind at issue in this case, has been committed.

Application of this principle to the facts of the present case is relatively straightforward. The petitioner was arrested in the privacy of his own bedroom for a noncriminal, traffic offense. The State attempts to justify the arrest by relying on the hot-pursuit doctrine, on the threat to public safety, and on the need to preserve evidence of the petitioner’s blood-alcohol level. On the facts of this case, however, the claim of hot pursuit is unconvincing because there was no immediate or continuous pursuit of the petitioner from the scene of a crime. Moreover, because the petitioner had already arrived home, and had abandoned his car at the scene of the accident, there was little remaining threat to the public safety. Hence, the only potential emergency claimed by the State was the need to ascertain the petitioner’s blood-alcohol level.

Even assuming, however, that the underlying facts would support a finding of this exigent circumstance, mere similarity to other cases involving the imminent destruction of evidence is not sufficient. The State of Wisconsin has chosen to classify the first offense for driving while intoxicated as a noncriminal, civil forfeiture offense for which no imprisonment is possible. See Wis. Stat. §346.65(2) (1975); §346.65(2)(a) (Supp. 1983-1984); supra, at 746. This is the best indication of the State’s interest in precipitating an arrest, and is one that can be easily identified both by the courts and by officers faced with a decision to arrest. See n. 6, supra. Given this expression of the State’s interest, 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. To allow a warrantless home entry on these facts would be to approve unreasonable police behavior that the principles of the Fourth Amendment will not sanction.

hH I — I 1 — I

The Supreme Court of Wisconsin let stand a warrant-less, nighttime entry into the petitioner’s home to arrest him for a civil traffic offense. Such an arrest, however, is clearly prohibited by the special protection afforded the individual in his home by the Fourth Amendment. The petitioner’s arrest was therefore invalid, the judgment of the Supreme Court of Wisconsin is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

The Chief Justice would dismiss the writ as having been improvidently granted and defer resolution of the question presented to a more appropriate case.

Justice Blackmun,

concurring.

I join the Court’s opinion but add a personal observation.

I yield to no one in my profound personal concern about the unwillingness of our national consciousness to face up to — and to do something about — the continuing slaughter upon our Nation’s highways, a good percentage of which is due to drivers who are drunk or semi-incapacitated because of alcohol or drug ingestion. I have spoken in these Reports to this point before. Perez v. Campbell, 402 U. S. 637, 657, and 672 (1971) (opinion concurring in part and dissenting in part); Tate v. Short, 401 U. S. 395, 401 (1971) (concurring opinion). See also South Dakota v. Neville, 459 U. S. 553, 555-559 (1983).

And it is amazing to me that one of our great States — one which, by its highway signs, proclaims to be diligent and emphatic in its prosecution of the drunken driver — still classifies driving while intoxicated as a civil violation that allows only a money forfeiture of not more than $300 so long as it is a first offense. Wis. Stat. §346.65(2)(a) (Supp. 1983-1984). The State, like the indulgent parent, hesitates to discipline the spoiled child very much, even though the child is engaging in an act that is dangerous to others who are law abiding and helpless in the face of the child’s act. See ante, at 754, n. 14 (citing other statutes). Our personal convenience still weighs heavily in the balance, and the highway deaths and injuries continue. But if Wisconsin and other States choose by legislation thus to regulate their penalty structure, there is, unfortunately, nothing in the United States Constitution that says they may not do so.

Justice White,

with whom Justice Rehnquist joins, dissenting.

At common law, “a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest.” United States v. Watson, 423 U. S. 411, 418 (1976). But the requirement that a misdemeanor must have occurred in the officer’s presence to justify a warrantless arrest is not grounded in the Fourth Amendment, see Street v. Surdyka, 492 F. 2d 368, 371-372 (CA4 1974); 2 W. LaFave, Search and Seizure §5.1 (1978), and we have never held that a warrant is constitutionally required to arrest for nonfelony offenses occurring out of the officer’s presence. Thus, “it is generally recognized today that the common law authority to arrest without a warrant in misdemeanor cases may be enlarged by statute, and this has been done in many of the states.” E. Fisher, Laws of Arrest 130 (1967); see ALI, Model Code of Pre-Arraignment Procedure, Appendix X (1975); 1 C. Alexander, The Law of Arrest 445-447 (1949); Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 673, 706 (1924).

Wisconsin is one of the States that have expanded the common-law authority to arrest for nonfelony offenses. Wisconsin Stat. §345.22 (Supp. 1983-1984) provides that “[a] person may be arrested without a warrant for the violation of a traffic regulation if the traffic officer has reasonable grounds to believe that the person is violating or has violated a traffic regulation.” Relying on this statutory authority, officers of the Madison Police Department arrested Edward Welsh in a bedroom in his home for violating Wis. Stat. §346.63(1) (1977), which proscribes the operation of a motor vehicle while intoxicated. Welsh refused to submit to a breath or blood test, and his operator’s license was eventually revoked for 60 days for this reason pursuant to Wis. Stat. §343.305 (1975).

In the civil license revocation proceeding, Welsh argued that his arrest in his house without a warrant was unconstitutional under the Fourth and Fourteenth Amendments to the Federal Constitution and that his refusal to submit to the test could not be used against him. This contention was not based on the proposition that using the refusal in the revocation proceeding would contravene federal law, but rather rested on the fact that Wis. Stat. § 343.305(2)(b)(5) (1975) had been interpreted to require that an arrest be legal if a refusal to be tested is to be the basis for a license revocation.

On review of the license revocation, the Supreme Court of Wisconsin appears to have recognized that, under the Wisconsin statute, Welsh’s license was wrongfully revoked if the officers who arrested him had violated the Federal Constitution. 108 Wis. 2d 319, 321 N. W. 2d 245 (1982). See Scales v. State, 64 Wis. 2d 485, 494, 219 N. W. 2d 286, 292 (1974). The court acknowledged that “the individual’s right to privacy in the home is a fundamental freedom” and made clear that the State bore the burden of establishing exigent circumstances justifying a warrantless in-home arrest. 108 Wis. 2d, at 327, 321 N. W. 2d, at 250. But it discerned a strong state interest in combating driving under the influence of alcohol, id., at 334-335, 321 N. W. 2d, at 253-254, and held that the warrantless arrest was proper because (1) the officers were in hot pursuit of a defendant seeking to avoid a chemical sobriety test; (2) Welsh posed a potential threat to public safety; and (3) “[without an immediate blood alcohol test, highly reliable and persuasive evidence facilitating the state’s proof of [Welsh’s] alleged violation . . . would be destroyed.” Id., at 338, 321 N. W. 2d, at 255. For two reasons, I would not overturn the judgment of the Supreme Court of Wisconsin.

First, it is not at all clear to me that the important constitutional question decided today should be resolved in a case such as this. Although Welsh argues vigorously that the State violated his federal constitutional rights, he at no point relied on the exclusionary rule, and he does not contend that the Federal Constitution or federal law provides the remedy he seeks. As a general rule, this Court “reviews judgments, not statements in opinions.” Black v. Cutter Laboratories, 351 U. S. 292, 297 (1956). Because the Court does not purport to hold that federal law requires the conclusion that Welsh’s refusal to submit to a sobriety test was reasonable, it is not clear to me how the judgment of the Supreme Court of Wisconsin offends federal law.

It is true that under the Wisconsin statutory scheme, an arrestee’s refusal to take a breath or blood test would be reasonable and would not justify revocation of operating privileges if the underlying arrest violated the Fourth Amendment or was otherwise unlawful. What the State has done, however, is to attach consequences to an arrest found unlawful under the Federal Constitution that we have never decided federal law itself would attach. The Court has occasionally taken jurisdiction over cases in which the States have provided remedies for violations of federally defined obligations. E. g., Moore v. Chesapeake & Ohio R. Co., 291 U. S. 205 (1934). But it has done so in contexts where state remedies are employed to further federal policies. See Greene, Hybrid State Law in the Federal Courts, 83 Harv. L. Rev. 289, 300 (1969). The Fourth Amendment of course applies to the police conduct at issue here. In providing that a driver may reasonably refuse to submit to a sobriety test if he was unlawfully arrested, Wisconsin’s Legislature and courts are pursuing a course that they apparently hope will reduce police illegality and safeguard their citizens’ rights. Although the State is entitled to draw this conclusion and to implement it as a matter of state law, I am very doubtful that the policies underlying the Fourth Amendment would require exclusion of the fruits of an illegal arrest in a civil proceeding to remove from the highways a person who insists on driving while under the influence of alcohol. If that is the case — if it would violate no federal policy to revoke Welsh’s license even if his arrest was illegal — there is no satisfactory reason for us to review the Supreme Court of Wisconsin’s judgment affirming the revocation, even if that court mistakenly applied the Fourth Amendment. For me, this is ample reason not to disturb the judgment.

In any event, I believe that the state court properly construed the Fourth Amendment. It follows from Payton v. New York, 445 U. S. 573 (1980), that warrantless nonfelony arrests in the home are prohibited by the Fourth Amendment absent probable cause and exigent circumstances. Although I continue to believe that the Court erred in Payton in requiring exigent circumstances to justify warrantless in-home felony arrests, id., at 603 (White, J., dissenting), I do not reject the obvious logical implication of the Court’s decision. But I see little to commend an approach that looks to “the nature of the underlying offense as an important factor to be considered in the exigent-circumstances calculus.” Ante, at 751.

The gravity of the underlying offense is, I concede, a factor to be considered in determining whether the delay that attends the warrant-issuance process will endanger officers or other persons. The seriousness of the offense with which a suspect may be charged also bears on the likelihood that he will flee and escape apprehension if not arrested immediately. But if, under all the circumstances of a particular case, an officer has probable cause to believe that the delay involved in procuring an arrest warrant will gravely endanger the officer or other persons or will result in the suspect’s escape, I perceive no reason to disregard those exigencies on the ground that the offense for which the suspect is sought is a “minor” one.

As a practical matter, I suspect, the Court’s holding is likely to have a greater impact in cases where the officer acted without a warrant to prevent the imminent destruction or removal of evidence. If the evidence the destruction or removal of which is threatened documents only the suspect’s participation in a “minor” crime, the Court apparently would preclude a finding that exigent circumstances justified the warrantless arrest. I do not understand why this should be so.

A warrantless home entry to arrest is no more intrusive when the crime is “minor” than when the suspect is sought in connection with a serious felony. The variable factor, if there is one, is the governmental interest that will be served by the warrantless entry. Wisconsin’s Legislature and its Supreme Court have both concluded that warrantless in-home arrests under circumstances like those present here promote valid and substantial state interests. In determining whether the challenged governmental conduct was reasonable, we are not bound by these determinations. But nothing in our previous decisions suggests that the fact that a State has defined an offense as a misdemeanor for a variety of social, cultural, and political reasons necessarily requires the conclusion that warrantless in-home arrests designed to prevent the imminent destruction or removal of evidence of that offense are always impermissible. If anything, the Court’s prior decisions support the opposite conclusion. See Camara v. Municipal Court, 387 U. S. 523, 539-540 (1967); McDonald v. United States, 335 U. S. 451, 454-455 (1948). See also State v. Penas, 200 Neb. 387, 263 N. W. 2d 835 (1978); State v. Niedermeyer, 48 Ore. App. 665, 617 P. 2d 911 (1980), cert. denied, 450 U. S. 1042 (1981).

A test under which the existence of exigent circumstances turns on the perceived gravity of the crime would significantly hamper law enforcement and burden courts with pointless litigation concerning the nature and gradation of various crimes. The Court relies heavily on Justice Jackson’s concurring opinion in McDonald v. United States, supra, which, in minimizing the gravity of the felony at issue there, illustrates that the need for an evaluation of the seriousness of particular crimes could not be confined to offenses defined by statute as misdemeanors. To the extent that the Court implies that the seriousness of a particular felony is a factor to be considered in deciding whether the need to preserve evidence of that felony constitutes an exigent circumstance justifying a warrantless in-home arrest, I think that its approach is misguided. The decision to arrest without a warrant typically is made in the field under less-than-optimal circumstances; officers have neither the time nor the competence to determine whether a particular offense for which warrantless arrests have been authorized by statute is serious enough to justify a warrantless home entry to prevent the imminent destruction or removal of evidence.

This problem could be lessened by creating a bright-line distinction between felonies and other crimes, but the Court— wisely in my view — does not adopt such an approach. There may have been a time when the line between misdemeanors and felonies marked off those offenses involving a sufficiently serious threat to society to justify warrantless in-home arrests under exigent circumstances. But the category of misdemeanors today includes enough serious offenses to call into question the desirability of such line drawing. See ALI, Model Code of Pre-Arraignment Procedures 131-132 (Prelim. Draft No. 1, 1965) (discussing ultimately rejected provision abandoning "in-presence” requirement for misdemeanor arrests). If I am correct in asserting that a bright-line distinction between felonies and misdemeanors is untenable and that the need to prevent the imminent destruction or removal of evidence of some nonfelony crimes can constitute an exigency justifying warrantless in-home arrests under certain circumstances, the Court’s approach will necessitate a case-by-case evaluation of the seriousness of particular crimes, a difficult task for which officers and courts are poorly equipped.

Even if the Court were correct in concluding that the gravity of the offense is an important factor to consider in determining whether a warrantless in-home arrest is justified by exigent circumstances, it has erred in assessing the seriousness of the civil-forfeiture offense for which the officers thought they were arresting Welsh. As the Court observes, the statutory scheme in force at the time of Welsh’s arrest provided that the first offense for driving under the influence of alcohol involved no potential incarceration. Wis. Stat. §346.65(2) (1975). Nevertheless, this Court has long recognized the compelling state interest in highway safety, South Dakota v. Neville, 459 U. S. 553, 558-559 (1983), the Supreme Court of Wisconsin identified a number of factors suggesting a substantial and growing governmental interest in apprehending and convicting intoxicated drivers and in deterring alcohol-related offenses, 108 Wis. 2d, at 334-335, 321 N. W. 2d, at 253-254, and recent actions of the Wisconsin Legislature evince its “belief that significant benefits, in the reduction of the costs attributable to drunk driving, may be achieved by the increased apprehension and conviction of even first time . . . offenders.” Note, 1983 Wis. L. Rev. 1023, 1053.

The Court ignores these factors and looks solely to the penalties imposed on first offenders in determining whether the State’s interest is sufficient to justify warrantless in-home arrests under exigent circumstances. Ante, at 754. Although the seriousness of the prescribed sanctions is a valuable objective indication of the general normative judgment of the seriousness of the offense, Baldwin v. New York, 399 U. S. 66, 68 (1970) (plurality opinion), other evidence is available and should not be ignored. United States v. Craner, 652 F. 2d 23, 24-27 (CA9 1981); United States v. Woods, 450 F. Supp. 1335, 1340 (Md. 1978); Brady v. Blair, 427 F. Supp. 5, 9 (SD Ohio 1976). Although first offenders are subjected only to civil forfeiture under the Wisconsin statute, the seriousness with which the State regards the crime for which Welsh was arrested is evinced by (1) the fact that defendants charged with driving under the influence are guaranteed the right to a jury trial, Wis. Stat. § 345.43 (1981-1982); (2) the legislative authorization of warrantless arrests for traffic offenses occurring outside the officer’s presence, Wis. Stat. §345.22 (1981-1982); and (3) the collateral consequence of mandatory license revocation that attaches to all convictions for driving under the influence, Wis. Stat. §343.30(lq) (1981-1982). See also District of Columbia v. Colts, 282 U. S. 63 (1930); United States v. Craner, supra. It is possible, moreover, that the legislature consciously chose to limit the penalties imposed on first offenders in order to increase the ease of conviction and the overall deterrent effect of the enforcement effort. See Comment, 35 Me. L. Rev. 385, 395, n. 35, 399-400, 403 (1983).

In short, the fact that Wisconsin has chosen to punish the first offense for driving under the influence with a fine rather than a prison term does not demand the conclusion that the State’s interest in punishing first offenders is insufficiently substantial to justify warrantless in-home arrests under exigent circumstances. As the Supreme Court of Wisconsin observed, “[t]his is a model case demonstrating the urgency involved in arresting the suspect in order to preserve evidence of the statutory violation.” 108 Wis. 2d, at 338, 321 N. W. 2d, at 255. We have previously recognized that “the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.” Schmerber v. California, 384 U. S. 757, 770 (1966). Moreover, a suspect could cast substantial doubt on the validity of a blood or breath test by consuming additional alcohol upon arriving at his home. In light of the promptness with which the officers reached Welsh’s house, therefore, I would hold that the need to prevent the imminent and ongoing destruction of evidence of a serious violation of Wisconsin’s traffic laws provided an exigent circumstance justifying the warrantless in-home arrest. See also, e. g., People v. Ritchie, 130 Cal. App. 3d 455, 181 Cal. Rptr. 773 (1982); People v. Smith, 175 Colo. 212, 486 P. 2d 8 (1971); State v. Findlay, 259 Iowa 733, 145 N. W. 2d 650 (1966); State v. Amaniera, 132 N. J. Super. 597, 334 A. 2d 398 (1974); State v. Osburn, 13 Ore. App. 92, 508 P. 2d 837 (1973).

I respectfully dissent.

       The state trial court never decided whether there was consent to the entry because it deemed decision of that issue unnecessary in light of its finding that exigent circumstances justified the warrantless arrest. After reversing the lower court’s finding of exigent circumstances, the Wisconsin Court of Appeals remanded for full consideration of the consent issue. See State v. Welsh, No. 80-1686 (May 26, 1981), App. 114-126. That remand never occurred, however, because the Supreme Court of Wisconsin reversed the Court of Appeals and reinstated the trial court’s judgment. See 108 Wis. 2d 319, 321 N. W. 2d 245 (1982). For purposes of this decision, therefore, we assume that there was no valid consent to enter the petitioner’s home.

       Since the petitioner’s arrest, §346.63 has been amended to provide that it is a code violation to drive or operate a motor vehicle while under the influence of an intoxicant or while evidencing certain blood- or breath-alcohol levels. See Wis. Stat. §§346.63(1)(a), (b) (1981-1982). Thisamendment, however, has no bearing on the issues raised by the present case.

       Since the petitioner’s arrest, this statute also has been amended, with the current version found at Wis. Stat. § 343.305 (1981-1982). Although the procedures to be followed by the law enforcement officer and the ar-restee have remained essentially unchanged, §§ 343.305(3), (8), the potential length of any revocation of operating privileges has been increased, depending on the arrestee’s prior driving record, §§ 343.305(9)(a), (b). An arrestee who improperly refuses to submit to a required test may also be required to comply with an assessment order and a driver safety plan, §§343.305(9)(c)-(e). These amendments, however, also have no direct bearing on the issues raised by the present case.

       “The implied consent law does not limit the right to take a blood sample as an incident to a lawful arrest. It should be emphasized, however, that the arrest, and therefore probable cause for making it, must precede the taking of the blood sample. We conclude that the sample was constitutionally taken incident to the lawful arrest.” 64 Wis. 2d, at 494, 219 N. W. 2d, at 292 (emphasis added).
      Nor is there any doubt that the Supreme Court of Wisconsin applies federal constitutional standards when determining whether an arrest, even for a nonjailable traffic offense, is lawful. The court, for example, explained the basis for its holding in this case as follows:
      “The trial court revoked the defendant’s motor vehicle operator’s license for sixty days pursuant to his unreasonable refusal to submit to a breathalyzer test, as required by [state statute].
      “The defendant challenges the officer’s warrantless arrest in his residence as violating the Fourth Amendment of the United States Constitution and Article I, section 11 of the Wisconsin Constitution. The [trial court] upheld this warrantless arrest concluding that probable cause to believe that the defendant had been operating a motor vehicle while under the influence of an intoxicant, coupled with the existence of exigent circumstances, justified the officers’ entry into the defendant’s residence. . . . [T]he court of appeals reversed the trial court, holding that, although the officers’ warrantless arrest was unreasonable, thereby violating the Fourth and Fourteenth Amendments, the absence of a finding regarding the consensual entry necessitated remanding the case on that issue. We affirm the findings of the [trial court], holding that the co-existence of probable cause and exigent circumstances in this case justifies the warrantless arrest....

        “To prevail in this case, the state must prove the co-existence of probable cause and exigent circumstances, justifying the officer’s conduct at the defendant’s residence. We hold that there was ample evidence supporting the trial court’s ruling that the officer’s entry was justified on the basis of both probable cause and exigent circumstances. Entry to effect a war-rantless arrest in a residence is subject to the limitations imposed by both the United States and the Wisconsin Constitutions. U. S. Const. amend. IV; Wis. Const. art. I, sec. 11.” 108 Wis. 2d, at 320-321, 326-327, 321 N. W. 2d, at 246-247, 249-250 (emphasis added) (citations and footnotes omitted).

       Because state law provides that evidence of the petitioner’s refusal to submit to a breath test is inadmissible if the underlying arrest was unlawful, this case does not implicate the exclusionary rule under the Federal Constitution.

       The petitioner was charged with a criminal misdemeanor because this was his second such citation in the previous five years. See § 346.65(2) (1975). Although the petitioner was subject to a criminal charge, the police conducting the warrantless entry of his home did not know that the petitioner had ever been charged with, or much less convicted of, a prior violation for driving while intoxicated. It must be assumed, therefore, that at the time of the arrest the police were acting as if they were investigating and eventually arresting for a nonjailable traffic offense that constituted only a civil violation under the applicable state law. See Beck v. Ohio, 379 U. S. 89, 91, 96 (1964).

       When ruling from the bench after the refusal hearing, the trial judge specifically indicated:
      “[T]he Court is bound by its earlier ruling that that was a valid arrest. And, I think [counsel for the petitioner] certainly will have the right to challenge that on appeal if he appeals this matter, as well as the previous ruling should there be a conviction on the underlying charge.” App. 111. See also id., at 112-113.

       The court remanded the case for further findings as to whether the police had entered the petitioner’s home with consent. See n. 1, supra.

       Although the state courts differed in their respective conclusions concerning exigent circumstances, they each found that the facts known to the police at the time of the warrantless home entry were sufficient to establish probable cause to arrest. The petitioner has not challenged that finding before this Court.
      The parallel criminal proceedings against the petitioner, see supra, at 746-747, and n. 6, resulted in a misdemeanor conviction for driving while intoxicated. During the jury trial, held in early 1982, the State introduced evidence of the petitioner's refusal to submit to a breath test. His appeal from that conviction, now before the Wisconsin Court of Appeals, has been stayed pending our decision in this case. See Brief for Petitioner 17, n. 5.

       In Johnson, Justice Jackson eloquently explained the warrant requirement in the context of a home search:
      “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. . . . The right of officers to thrust themselves into a home is ... a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.” 333 U. S., at 13-14 (footnote omitted).

       Our decision in Payton, allowing warrantless home arrests upon a showing of probable cause and exigent circumstances, was also expressly limited to felony arrests. See, e. g., 445 U. S., at 574, 602. Because we conclude that, in the circumstances presented by this case, there were no exigent circumstances sufficient to justify a warrantless home entry, we have no occasion to consider whether the Fourth Amendment may impose an absolute ban on warrantless home arrests for certain minor offenses.

       Even the dissenters in Payton, although believing that warrantless home arrests are not prohibited by the Fourth Amendment, recognized the importance of the felony limitation on such arrests. See id., at 616-617 (White, J., joined by Burgee, C. J., and Rehnquist, J., dissenting) (“The felony requirement guards against abusive or arbitrary enforcement and ensures that invasions of the home occur only in case of the most serious crimes”).

       See generally Donnino & Girese, Exigent Circumstances for a Warrantless Home Arrest, 45 Albany L. Rev. 90 (1980); Harbaugh & Faust, “Knock on Any Door” — Home Arrests After Payton and Steagald, 86 Dick. L. Rev. 191, 220-233 (1982); Note, Exigent Circumstances for Warrantless Home Arrests, 23 Ariz. L. Rev. 1171 (1981).

       Nor do we mean to suggest that the prevention of drunken driving is not properly of maj or concern to the States. The State of Wisconsin, however, along with several other States, see, e. g., Minn. Stat. §169.121 subd. 4 (1982); Neb. Rev. Stat. §39-669.07(1) (Supp. 1983); S. D. Codified Laws § 32-23-2 (Supp. 1983), has chosen to limit severely the penalties that may be imposed after a first conviction for driving while intoxicated. Given that the classification of state crimes differs widely among the States, the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State’s interest in arresting individuals suspected of committing that offense.

       On remand, the state courts may consider whether the petitioner’s arrest was justified because the police had validly obtained consent to enter his home. See n. 1, supra.