Pubdate: Thu, 02 Nov 2000 Source: Baltimore Sun (MD) Copyright: 2000 The Baltimore Sun, a Times Mirror Newspaper. Contact: 501 N. Calvert Street P.0. Box 1377 Baltimore, MD 21278 Fax: (410) 315-8912 Website: http://www.sunspot.net/ Forum: http://www.sunspot.net/cgi-bin/ultbb/Ultimate.cgi?action=intro Author: Lyle Denniston COURT EXAMINES CASE WHERE MAN WAS KEPT FROM HIS HOME WASHINGTON - The Constitution treats an individual's home as a castle, so is it unconstitutional for police to keep that person out? The Supreme Court faced that new twist on an old issue yesterday. After years of sorting out when the Constitution allows police to go into a private home to look for evidence of crime, the court for the first time turned to the constitutionality of police control of occupants who want to go into their homes when officers are suspicious of what they would do once back inside. In a lively one-hour hearing on a case from the small town of Sullivan, Ill., southeast of Decatur, the justices weighed the pros and cons of allowing the police to control access to a dwelling while they seek a search warrant, believing that illegal drugs are inside and could be destroyed if anyone enters. Yesterday, it took the justices only a few minutes to discover that the new issue before them was far from easy. Although several justices tried to suggest common-sense ways of deciding when a police officer would be justified in concluding that a homeowner would destroy evidence if allowed to go into a house, they had difficulty translating those thoughts into constitutional reasoning. Somewhat plaintively, Justice Antonin Scalia commented: "I'm concerned about complicating the criminal law. Is there any end to the number of endless variations" in deciding how much police intrusion into home privacy is too much? "It's too complicated." By the end of the hearing, it did not appear that the court had any firm idea how to choose between a homeowner's right of access and an officer's need to "secure" a dwelling in order to protect evidence from being destroyed. In the Illinois case, officers had accompanied a woman to her trailer home to remove her belongings and protect her because she feared her husband. When she came out, she told police her husband had stashed marijuana under a couch. Her husband, Charles McArthur, came out and refused an officer's request to search the trailer. The officer, dispatching another policeman for a search warrant, would not let McArthur go back into the trailer alone. It took two hours for the search warrant to arrive. With the warrant in hand, officers entered, searched, and found marijuana and a pipe. McArthur, charged with illegal possession of marijuana and drug paraphernalia, sought to have the evidence blocked from his case, claiming his rights were violated when he was barred from his home. An Illinois state court upheld his claim, so far barring his trial. The state of Illinois, supported by the Justice Department, urged the court to rule that any time police have reason to believe evidence is inside a home, and that it is at risk of being destroyed, they may bar the occupant from entering. A lawyer for the state, Joel D. Bertocchi, argued that keeping the occupant outside was the "least intrusion" on privacy, and was justified because of the genuine risk that the marijuana would be flushed down the toilet. But McArthur's lawyer, Deanne F. Jones of Decatur, countered that giving officers a broad right to "seize a home while they seek a warrant" did not take into account the "high esteem" the court has accorded the privacy of the home. The arguments led the justices to speculate at length about ways to judge how reasonable the officers' belief was that the marijuana would be destroyed. Justice Stephen G. Breyer suggested that anybody would simply assume that the occupant of a home where marijuana was stashed "would take the dope and flush it down the toilet" if allowed to re-enter the dwelling. Justice David H. Souter added: "Do [the police] have to hear the sound of water flushing" before they could take action to protect the evidence? When McArthur's case was in pretrial hearings in state court, he acknowledged that, if allowed back in the trailer, he would have flushed the marijuana. A final ruling in the case by the justices is expected early next year. - --- MAP posted-by: Andrew