nytimes.com
WASHINGTON, Nov. 1 — 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). |
