Pubdate: Thu, 02 Nov 2000
Source: San Francisco Chronicle (CA)
Copyright: 2000 San Francisco Chronicle
Contact:  http://www.sfgate.com/chronicle/
Forum: http://www.sfgate.com/conferences/
Author: Lyle Denniston, Baltimore Sun

COURT WEIGHS WHEN IT'S LEGAL TO BAR RESIDENT 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 own homes when officers are
suspicious of what they would do 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 an easy one.

Although several justices tried to suggest commonsense 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.

Justice Antonin Scalia commented: ``I'm concerned about complicating
the criminal law.''

By the end of the hearing, it did not appear that the court had any
firm idea how to choose between a resident'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
some marijuana under a couch.

Her husband, Charles McArthur, came out and refused to let an officer
search the trailer. The officer, dispatching another officer 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.

But McArthur's lawyer, Deanne Jones, countered that giving officers a
broad right to ``seize a home while they seek a warrant'' does 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 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.

When McArthur's case was in pretrial hearings in state court, he
admitted that, if allowed back in the trailer, he would have flushed
the marijuana.

A final ruling is expected early next year.

The case is Illinois vs. McArthur, No. 99-1132.
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