Pubdate: Thu, 02 Nov 2000
Source: San Diego Union Tribune (CA)
Copyright: 2000 Union-Tribune Publishing Co.
Contact:  PO Box 120191, San Diego, CA, 92112-0191
Fax: (619) 293-1440
Website: http://www.uniontrib.com/
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Author: Linda Greenhouse, New York Times News Service

HIGH COURT GETS DEBATE OVER POLICE 'IMPOUNDING' A HOME

Keeping Occupants Out Until Search Warrant Obtained Is At Issue

WASHINGTON -- The state of Illinois asked the Supreme Court yesterday 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 occupant's 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 
on the basis of information from his estranged wife that he had hidden 
marijuana under the 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.

Though it was not clear how the Supreme Court will decide the issue, the 
argument underscored just how complex the constitutional law of search and 
seizure has become.

"I'm concerned about complicating the criminal law more than necessary," 
Justice Antonin Scalia said to Joel 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," the justice added.

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 yesterday over whether exigent circumstances 
existed in this case. Bertocchi said they did, and several justices 
appeared to agree. The police first told the suspect, Charles McArthur, 
that his wife had informed on him, and he told them 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, adding: "That's what I would 
think, and if he's intelligent, that's what he would have done."

Deanne Jones, representing McArthur, said that while such a scenario 
sounded reasonable, it did not rise to the level of exigency needed to 
justify impounding the home. She noted that the police officer had actually 
created the problem by knocking on McArthur's door and telling him he was 
under suspicion.

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. McArthur's offense -- possession of 2.3 grams of marijuana -- 
was only 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 she said it would be.

The Clinton administration entered the case on behalf of the state. Matthew 
Roberts, an assistant solicitor general, told the justices that impounding 
a home served the "strong law enforcement interest in preserving evidence," 
prompting an objection from Scalia.

"There is a considerable interest on the part of an individual in going 
into his own home," Scalia said, mentioning the need to attend to a child, 
take something off the stove, or turn off a computer. "We're going to go 
crazy trying to balance these things all the time," he said.

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," Roberts said.

"What if the child says, 'I'm too busy destroying evidence'?" Stevens 
persisted, to general laughter in the courtroom. That, too, would create an 
exigent circumstance, the government lawyer replied.
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