Pubdate: Thu, 02 Nov 2000 Source: New York Times (NY) Copyright: 2000 The New York Times Company Contact: 229 West 43rd Street, New York, NY 10036 Fax: (212) 556-3622 Website: http://www.nytimes.com/ Forum: http://forums.nytimes.com/comment/ Author: Linda Greenhouse SEARCH WARRANT CASE PROMPTS LIVELY DEBATE AT SUPREME COURT WASHINGTON, - The State of Illinois asked the Supreme Court today to let police officers bar people from entering their homes during the time it takes to get a warrant to search for drugs or other illegal items that can readily be destroyed. An Illinois appeals court found that the practice of impounding a home - - limiting the occupants freedom of movement and securing the building from the outside - violated the Fourth Amendment's prohibition against unreasonable seizures. The 1999 ruling came in the case of a man whom the police kept outside his trailer for the two hours it took to get a warrant after his estranged wife said he had hidden marijuana under a sofa. Courts around the country have disagreed over what the police should be able to do when, as in this case, they have probable cause to believe a home contains readily destructible evidence of illegal activity but have neither the occupant's permission nor a warrant to search. While it was not clear how the Supreme Court would decide the issue, the argument underscored how complex the constitutional law of search and seizure had become. "I'm concerned about complicating the criminal law more than necessary," Justice Antonin Scalia said to Joel D. Bertocchi, the Illinois solicitor general, who was arguing the state's appeal. "I'm not sure human beings are capable of figuring out so many variations." Under the Supreme Court's precedents, the police do not need a warrant to enter a home when "exigent circumstances" - signs that evidence is in the process of destruction, for example - justify immediate action. There was considerable debate today over whether there were exigent circumstances in this case. Mr. Bertocchi said there were, and several justices appeared to agree. The police told the suspect, Charles McArthur, that his wife had informed on him. Mr. McArthur then told the police to come back with a warrant if they wanted to search. "Why wouldn't the officer think, `If I leave, he'll flush it down the toilet,' " Justice Stephen G. Breyer said. "That's what I would think, and if he's intelligent, that's what he would have done." Deanne F. Jones, representing Mr. McArthur, said that while such a sequence of events sounded reasonable, it did not rise to the level of exigency needed to justify impounding the home. Ms. Jones said the police officer had created the problem by knocking on Mr. McArthur's door and telling him he was under suspicion. Ms. Jones suggested that the seriousness of the crime should be a factor in deciding how much weight to give to the prospect that evidence might be destroyed. Mr. McArthur's offense - possession of 2.3 grams of marijuana - was a low-level misdemeanor, she said. Chief Justice William H. Rehnquist asked whether the case might be different if the police had probable cause to believe the trailer contained "a large stash of heroin," and Ms. Jones said it would be. The Clinton administration entered the case on behalf of the state. Matthew D. Roberts, an assistant solicitor general, told the justices that impounding a home served the "strong law enforcement interest in preserving evidence." That drew an objection from Justice Scalia. "There is a considerable interest on the part of an individual in going into his own home," Justice Scalia said, mentioning the need to attend to a child, take something off a stove, or turn off a computer. "We're going to go crazy trying to balance these things all the time." Mr. Roberts said that a child's need for attention would be an exigent circumstance, justifying a police officer in accompanying the suspect into the house. "What if that child is old enough to destroy the evidence?" Justice John Paul Stevens asked. "Can the police make the child come out?" "The police can ask the child to come out," Mr. Roberts said. "What if the child says, `I'm too busy destroying evidence'?" Justice Stevens persisted, prompting laughter. That, too, would create an exigent circumstance, the government lawyer replied. As is common with arguments in search and seizure cases, which often depend as much on particular facts as on overarching theories, the justices appeared deeply interested in the facts of this case. They were also notably free in expressing their personal responses to those facts. "Wouldn't any sensible person destroy the evidence?" Justice David H. Souter asked. He said Mr. McArthur, watching his wife from the window of his trailer, probably thought, "She's talking to the cops, and she hates my guts." Justice Breyer said the officer's action in this case seemed common sense that achieved "the least restrictive way to preserve the evidence." He added, "I would think he would have gotten a Fourth Amendment medal rather than Fourth Amendment criticism." Reflecting the justices' lively interest in the subject, this case, Illinois v. McArthur, No. 99-1132, is one of 5 Fourth Amendment cases out of 60 that the court has so far agreed to decide during the current term. In the other cases, the court will decide: whether use of thermal imaging outside a home to detect the heat generated by a marijuana- growing operation is a search requiring a warrant (Kyllo v. United States, No. 99-8508); whether drug tests of pregnant women who came to a hospital in Charleston, S.C., for care, with positive results forwarded to the police, were unconstitutional searches (Ferguson v. City of Charleston, No. 99-936); whether a drug checkpoint in Indianapolis, with the use of drug-sniffing dogs, violated the Fourth Amendment (Indianapolis v. Edmond, No. 99-1030); and whether a custodial arrest - being taken to jail in handcuffs -for driving without a seat belt was an unconstitutional seizure when the maximum penalty was a $50 fine (Atwater v. City of Lago Vista, Tex., No. 99-1408). - --- MAP posted-by: Derek