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
Author: Linda Greenhouse


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

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

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

"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

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

"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).
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