Petitioners Brief — Illinois v. McArthur

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No. 99-1132 JUL 13 2000

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In the CLERM

——

ind

Supreme Court of the Gnited States

PEOPLE OF THE STATE OF ILLINOIS,

. Petitioner,

CHARLES McARTHUR,

Respondent.

On Writ of Certiorari to the

Appellate Court of Illinois

BRIEF FOR PETITIONER

JAMES E. RYAN

Attorney General of Illinois

JOEL D. BERTOCCHI

Solicitor General of Illinois

Counsel of Record

WILLIAM L. BROWERS

COLLEEN M. GRIFFIN

Assistant Attorneys General

100 West Randolph Street

12th Floor

Chicago, Illinois 60601

(312) 814-3698

Counsel for Petitioner

Printed by Authority of the State of Illinois (P.O. 27788—75—7-13-00)

QUESTION PRESENTED

Is it reasonable under the Fourth Amendment for

police officers who have probable cause to believe that a

residence contains evidence that could readily be de-

stroyed to secure the residence by preventing its occu-

pant and others from entering unaccompanied while the

officers seek a search warrant?

ii iil

TABLE OF CONTENTS B. The Constitution Does Not Require That

PAGE Police Obtain a Seizure Warrant Before

. Temporarily Seizing a Residence While

QUESTION PRESENTED ..............--0++ 000s i Awaiting a Search Warrant .............

TABLE OF CONTENTS ..........--eeeeeeeeeees ii C. Because Officer Love Was Entitled to Bar

. Respondent from Entering His Trailer

TABLE OF AUTHORITIES ..............---505: iv Unless Escorted, the Officer’s Observa-

OPINIONS BELOW 1 tion of Respondent Inside the Trailer Was

eoceoeeeeeeeoeoeeeeeeereeeees ee eee | a Consensual Acceptance of That Condi-

JURISDICTION ........0.0.ccceeeeeeeeeeeeeee: 1 . eee esewneasonne ses

CONCLUSION ...............

CONSTITUTIONAL PROVISION INVOLVED ...... Ciro! 8 2

STATEMENT OF THE CASE .............--+5555 2 |

SUMMARY OF ARGUMENT ............--555055 7

ARGUMENT:

'- S22

THE FOURTH AMENDMENT PERMITS OF-

FICERS WHO HAVE PROBABLE CAUSE TO

SEIZE AND SECURE A RESIDENCE FROM |

THE OUTSIDE FOR A REASONABLE PE-

RIOD OF TIME WHILE SEEKING A SEARCH

WARRANT 2... ccccccccccccccvescccevveces 9

A. The State’s Interest in Securing Evidence

Against Destruction Outweighs the Less-

er Fourth Amendment Interests Impli-

cated by the Temporary Seizure of Re-

spondent’s Residence ...........++++++: 10

TABLE OF AUTHORITIES

Cases PAGE(S)

Arkansas v. Sanders, 442 U.S. 753 (1979) ......... 16

Chambers v. Maroney, 399 U.S. 42 (1970) ...... 16, 20

Commonwealth v. Blake, 604 Mass. 823,

604 N.E.2d 1289 (1992) ..........6-5 cece eens 18

Cupp v. Murphy, 412 U.S. 291 (1973) .......... 21, 22

Dunaway v. New York, 442 U.S. 200 (1979) ........ 10

Jeffers v. United States, 342 U.S. 48 (1951) .. 14, 19, 20

Jones v. State, 648 So. 2d 669 (Fla. 1994),

cert. denied, 515 U.S. 1147 (1995)...........-- 18

Michigan v. Summers, 452 U.S. 692 (1981) ........ 14

Mincey v. Arizona, 437 U.S. 385 (1978) ........ 19, 20

People v. Bennett, 17 Cal. 4" 373,

949 P.2d 947 (1998) ..... 2. eee c ee eee eens 21

People v. Griffin, 727 P.2d 55 (Colo. 1986) ......... 18

People v. McArthur, 304 Ill. App. 3d 395,

713 N.E.2d 93 (4 Dist. 1999). ..........++: 1,5

Preston v. United States, 376 U.S. 364 (1964) ...... 14

Schmerber v. California, 384 U.S. 757 (1966) ...... 14

Schneckloth v. Bustamante, 412 U.S. 218 (1973) .... 22

Segura v. United States, 468 U.S. 796 (1984)... passim

State v. Alayon, 459 N.W.2d 325 (Minn. 1990),

cert. denied, 498 U.S. 1049 (1991)............. 18

State v. DeLane, 207 N.J. Super. 45,

503 A.2d 903 (App. Div. 1986) ............. 18, 19

State v. Hull, 210 Conn. 481,

Be Be BEG (IGE occ cccccccccccccccccces 18

State v. Kin Ng, 104 Wash. 2d 763,

WE dinck chuad abuses veses cdi 19

State v. Knight, 340 N.C. 531,

459 S.E.2d 481 (1995) .............. cece eee 19

State v. Smith, 458 N.W.2d 779 (S.D. 1990)........ 19

Trupiano v. United States, 334 U.S. 699 (1948) ..... 19

United States v. Brignoni-Ponce,

ED oe ecb ubidswincdewine 10, 11

United States v. Chadwick, 433 U.S. 1(1977) ... 11, 16

United States v. Crespo De Lano,

838 F.2d 1006 (9" Cir. 1987) ................. 18

United States v. Hall, 50 M.J. 247

(C.M.A. 1999)

United States v. Jacobsen, 466 U.S. 109 (1984) ..... 11

United States v. Mendenhall, 446 U.S. 544

Ps ccoceeucebskseshbdeetaasenesnseeses 13

United States v. Morales, 868 F.2d 1562

eee Ge ng ccinccesensesaenescveksine 18

United States v. Place, 462 U.S. 696 (1983) ........ 11

United States v. Riley, 968 F.2d 422

(5™ Cir.), cert. denied, 506 U.S. 990

United States v. Roby, 122 F.3d 1120

eR ol ea eeuneees 18

United States v. Scheets, 188 F.3d 829

(7 Cir. 1999), cert. denied, __ US.

___. 399 B.Cb. GBT (BOGS) ... ccc cccccccvcees 18

United States v. United States District Court,

r 4 i & [| FarrrrrTrTrTrr ryt 11

United States v. Villamonte-Marquez,

GEE, BG co cccckecesesccececesess 11

United States v. Watson, 423 U.S. 411 (1976) ...... 14

Vale v. Louisiana, 399 U.S. 30 (1970) .... 10, 19, 20, 21

vii

Constitutional and Statutory Provisions

I 2

ni a ee 1

Pe 5a aid eae cous ell gl dee ad 5

RE IN eR ee SE 5

a 14

I og ea lL ek oe 14

RE eae one Ds 5

730 ILCS 5/5-B-B(aN3) 2.0... ccc ccc ccc cece 5

Other

Erwin N. Griswold, Criminal Procedure 1969 -

Is It a Means or an End?, 29 Md. L. Rev.

DPD succhagephdadcaeuuEcue ances 7, 10, 20

3 Wayne R. LaFave, Search and Seizure

I a a 13, 18, 21

Note, The Securing of the Premises Exception:

A Search for the Proper Balance,

38 Vand. L. Rev. 1589 (1985). ................ 21

Barbara C. Salken, Balancing Exigency and

Privacy in Warrantless Searches to Prevent

Destruction of Evidence: The Need for a

Rule, 39 Hastings L.J. 283 (1988) ............. 21

OPINIONS BELOW

The oral ruling of the Circuit Court for the Sixth

Judicial Circuit, Moultrie County, Illinois, granting Re-

spondent’s motion to suppress evidence was transcribed

at the conclusion of that court’s suppression hearing. It

is reprinted in the Joint Appendix, Jt. App. 39-41. The

Appellate Court of Illinois, Fourth District, issued its

opinion affirming that ruling on May 7, 1999. People v.

McArthur, 304 Ill. App. 3d 395, 713 N.E.2d 93 (4" Dist.

1999). That decision is reprinted in the appendix to the

Petition for Writ of Certiorari, Pet. App. 1-14. The Octo-

ber 6, 1999, order of the Supreme Court of Uliinois, deny-

ing Petitioner’s Petition for Leave to Appeal to that court,

is also reprinted in the appendix to the Petition for Writ

of Certiorari, Pet. App. 15.

JURISDICTION

The Appellate Court of Illinois, Fourth District, entered

its judgment on May 7, 1999, and the Supreme Court of

Illinois denied Petitioner’s Petition for Leave to Appeal

to that court on October 6, 1999. The Petition for Writ of

Certiorari was timely filed on January 4, 2000 and this

Court granted that Petition on May 1, 2000. Petitioner

invokes this Court’s jurisdiction under 28 U.S.C. §1257(a)

because Respondent has claimed a violation of his rights

under the United States Constitution.

CONSTITUTIONAL PROVISION INVOLVED

This case puts in issue the Fourth Amendment to the

United States Constitution, which provides as follows:

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

U.S. Const., amend. IV (hereinafter “the Fourth Amend-

ment”).

STATEMENT OF THE CASE

Respondent Charles McArthur was arrested and

charged with misdemeanor violations of Illinois’ drug and

paraphernalia possession laws after a search of his resi-

dence, conducted pursuant to a warrant, disclosed ap-

proximately 2.3 grams of marijuana and paraphernalia,

including a smoking pipe, hidden under a sofa. The trial

court, after an evidentiary hearing, granted Respondent’s

motion to suppress those items, finding that police offi-

cers had violated his rights under the Fourth Amend-

ment when they secured his residence for approximately

two hours while obtaining the search warrant. Illinois’

intermediate appellate court affirmed that ruling, and

the Supreme Court of Illinois denied leave to appeal. The

People of the State of Illinois respectfully request that

this Court reverse those rulings.

On the afternoon of April 2, 1997, two officers of the

Sullivan, Illinois, police department went to the home of

Respondent and his wife, Tera McArthur (“Tera”). The

home was a trailer located in a trailer park. Tera had

asked them to accompany her to the trailer to “keep the

peace” while she moved her belongings out. Jt. App. 15,

20. After Tera removed her possessions from the trailer,

she told the officers that her husband (Respondent) had

“dope” in the trailer. The senior officer, Assistant Police

Chief John Love, asked Tera to describe what she had

seen. Tera said she had seen Respondent hide “pot”

under the couch in the trailer. Jt. App. 15-16, 19.

Officer Love knocked on the door of the trailer, and Re-

spondent answered. Officer Love told Respondent that

his wife had informed the officers that he had marijuana

in the trailer. Respondent denied the accusation. Officer

Love asked Respondent if he could enter the trailer and

search it, but Respondent declined to permit the officer

to search without a warrant. Jt. App. 16, 26, 29. When

this conversation concluded, Respondent was outside the

trailer. Jt. App. 16, 26.' |

Officer Love asked Tera whether she would be willing

to tell a judge what she had seen, and she agreed to do

so. Officer Love’s partner then left with Tera to go to the

local prosecutor’s office for the purpose of seeking a

' The record does not make clear exactly when or how Re-

spondent came to be outside the trailer, although he was out-

side at the time he refused to consent to a warrantless search.

Jt. App. 16, 17, 26. Respondent did not testify that he was

asked or otherwise compelled to step out of the trailer, and

Officer Love testified that he did not recall whether he asked

Respondent to come outside or Respondent did so on his own

(Jt. App. 17).

search warrant for the trailer. Jt. App. 16-17, 26. Officer

Love remained behind with Respondent. He did not

arrest Respondent or tell Respondent that he was not

free to leave. Jt. App. 22, 29. When Respondent asked

Officer Love if he could go back inside the trailer to wait

for the warrant, however, Officer Love told him that,

until the warrant was or was not obtained, Respondent

would not be allowed to reenter the trailer unless accom-

panied by the officer. Jt. App. 17, 27.

Respondent and Officer Love waited outside the trailer

for about two hours before other officers returned with a

search warrant for the trailer.’ Jt. App. 3-10, 18, 27.

During that period Respondent asked Officer Love if he

could go back into the trailer, and was told that he could

do so only if the officer accompanied him. At least twice

Respondent entered the trailer to get cigarettes and call

family members; each time, Officer Love stood in the

doorway of the trailer and observed Respondent as he did

so, but made no further entry into and no search of the

trailer. Jt. App. 17, 18, 22-23, 27, 30. At the suppression

hearing, Respondent admitted that his purpose in asking

to go back into the trailer was to destroy the evidence

concealed there and that he would have done so had he

2? The trial judge concluded that approximately two hours

elapsed between the officers’ arrival at the trailer and the

issuance of the warrant. Jt. App. 40. Officer Love testified that

he arrived at the trailer at approximately 3:15 p.m. (Jt. APP.

25), and the warrant states on its face that it was issued at 5:05

p.m. (Jt. App. 4). Nevertheless, Tera McArthur, in her affidavit

submitted in support of the warrant, stated that she saw the

marijuana in the trailer at approximately 3:40 p.m., Jt. App. 9,

suggesting that the actual time may have been shorter.

» ee ~~ —

been permitted to enter alone, although he did not an-

nounce that purpose to Officer Love. Jt. App. 27, 29. At

some point during this period Respondent’s mother came

to the trailer. She was also told by Officer Love that she

could not enter unaccompanied. Jt. App. 17-18. When

other officers returned with the warrant, Respondent

showed the officers where a small quantity of marijuana

and paraphernalia were hidden. He was then arrested.

Jt. App. 18, 23, 29-30.

Respondent was charged with two counts of unlawful

possession of drug paraphernalia and one count of un-

lawful possession of less than 2.5 grams of marijuana,

all misdemeanor violations. 720 ILCS 600/3.5(a) and

550/4(a).* He filed a motion to suppress the items found

at his residence, arguing that barring him from entering

the trailer while the search warrant was sought had

amounted to an illegal arrest, and that the Marijuana

and paraphernalia recovered when the warrant was ex-

ecuted were the products of that arrest because, had he

not been kept outside, he would have destroyed them.

After an evidentiary hearing at which Respondent and

Officer Love testified, the trial court granted Respon-

dent’s motion to suppress. Jt. App. 39-41. The State ap-

pealed, and the Appellate Court of Illinois, Fourth Dis-

trict, affirmed. People v. McArthur, 304 III. App. 3d 395,

713 N.E.2d 93 (4" Dist. 1999); Pet. App. 1-14. The court

* Under Illinois law, possession of not more than 2.5 grams of

marijuana is a Class C misdemeanor punishable by not more

than 30 days of imprisonment, while paraphernalia possession

is a Class A misdemeanor punishable by less than one year of

imprisonment. 730 ILCS 5/5-8-3(a)(1) and (3).

conceded that the police officers had “probable cause

to secure the residence.” Pet. App. 12. The court none-

theless held that barring Respondent from reentering

his home unaccompanied amounted to his “constructive

eviction” therefrom, id., although the court later observed

that it was “unclear whether the police effected a seizure

of [Respondent’s] person when they secured his residence

and, if so, whether the seizure was reasonable,” Pet. App.

13-14. The court distinguished the instant case, wherein

Respondent was on the premises at the time the home

was seized, from one in which the police secure premises

and bar entry by anyone thereafter arriving. Pet. App.

12. Similarly, the court distinguished that portion of the

opinion in Segura v. United States, 468 U.S. 796, 813

(1984) (Opinion of Burger, C.J., joined by O’Connor, J.),

that had declared that the seizure of a residence presents

a lesser interference with the occupant’s possessory in-

terest if the occupant is then in custody, noting that

Respondent herein was present and not under arrest at

the time he was barred from entering his trailer. Pet.

App. 7. The court also concluded that Officer Love con-

ducted both a search and a seizure “from the inside”

when he stood in the doorway of the trailer to observe

Respondent as he made phone calls and retrieved his

cigarettes. Pet. App. 12-13.

The State filed a timely Petition for Leave to Appeal to

the Supreme Court of Illinois. On October 6, 1999, that

court denied the petition. The State’s Petition for a Writ

of Certiorari was filed in this Court on January 4, 2000

and granted on May 1, 2000.

SUMMARY OF ARGUMENT

This case presents the question whether, as an alterna-

tive to either the loss of evidence or a warrantless search

to recover it, a police officer may “maintain the status

quo™ by prohibiting entry to a residence by its unar-

rested occupant while a fellow officer seeks and obtains

a search warrant. By securing the residence from the

outside, the officers in this case honored Respondent’s

privacy rights while assuring the preservation of evi-

dence that, but for their action, would certainly have

been destroyed.

The Fourth Amendment’s requirement that searches

and seizures be reasonable prescribes a balancing of the

intrusion upon an individual’s interests in privacy and

possession against the State’s interest in detecting and

prosecuting crimes. The officers in this case visibly exe-

cuted that balance, assuring that evidence was preserved

while leaving Respondent’s right to the privacy of his

home, as well as his own liberty, virtually intact. The

balance of interests required by the Fourth Amendment

demonstrates that the actions of the police officers in this

case were reasonable. The infringement upon Respon-

dent’s rights was deliberately minimal. The securing of

Respondent’s trailer was a seizure, not a search, and

thus effected only his possessory interests. These inter-

ests are of less concern under the Fourth Amendment

than the privacy interests that would have been impli-

cated by an entry and search. Respondent lost posses-

* Erwin N. Griswold, Criminal Procedure 1969 - Is It a Means

or an End?, 29 Md. L. Rev. 307, 317 (1969).

sion of his home for only the brief and reasonable period

required to obtain a judicial warrant. Moreover, contrary

to the view of the Appellate Court, Respondent himself

was not in any significant way seized as a result of this

procedure, as he remained free to go anywhere in any

manner except unescorted into his home.

The State’s interest in carrying out this procedure was

substantial. The officers had firsthand, current informa-

tion constituting probable cause to believe that evidence

of a crime was inside the trailer. The State has a strong

interest in assuring that such evidence is not destroyed

while it seeks to invoke judicial process in order to gain

access to it. In this case, of course, the officers’ concern

for the security of that evidence was well-founded; the

evidence ultimately seized under the warrant certainly

would have been lost had the officers not barred Respon-

dent’s entry.

The police officers were not required to obtain a sep-

arate warrant before temporarily seizing Respondent's

trailer while a search warrant was sought. Probable

cause was sufficient to permit the officers to secure the

residence provisionally pending the issuance of a warrant

to search. This Court has endorsed temporary seizures of

property or persons pending further investigation based

on probable cause. That power is no less appropriately

exercised where the warrantless seizure of a home is at

issue, particularly when the seizure is carried out as an

alternative to the intrusion of a warrantless search.

Endorsement of the practice of securing from the outside,

when appropriate and effective, will encourage the use of

search warrants, as it did in this case, by allaying the

fears of officers that evidence will be lost. It will corre-

spondingly discourage, or at least confine, warrantless

searches intended to quell those fears.

Finally, the Appellate Court below was wrong in find-

ing that Officer Love secured Respondent’s home “from

the inside” (Pet. App. 12) by standing in the doorway and

observing Respondent as he made teiephone calls and got

cigarettes. Those brief entries yielded nothing incrimi-

nating, and the court never linked them in any way to

the discovery of the evidence later obtained by warrant.

Because the officer was entitled to bar Respondent’s

entry for the limited period required to obtain the war-

rant, Respondent must be deemed to have consented to

those entries. In fact, they militate in favor of a finding

of reasonableness, as they manifest Officer Love’s en-

deavor to minimize the intrusion imposed by the tempo-

rary securing of Respondent’s home.

ARGUMENT

THE FOURTH AMENDMENT PERMITS OFFICERS

WHO HAVE PROBABLE CAUSE TO SEIZE AND SE-

CURE A RESIDENCE FROM THE OUTSIDE FOR A

REASONABLE PERIOD OF TIME WHILE SEEKING A

SEARCH WARRANT.

The police officers in this case effected a temporary

warrantless seizure of Respondent’s residence in order to

preserve the existence of incriminating evidence while

they sought and obtained a search warrant. This brief

infringement upon Respondent’s possevsory interest in

his home allowed the officers to preser.e evidence con-

tained inside from certain destruction without resort to

the primary affront against which the Fourth Amend-

ment stands: a warrantless entry into a home. This pro-

cedure thus answers a need that has been noted by dis-

tinguished constitutional commentators, both on and off

the bench.’ It represents a reasonable accommodation of

interests that deserves this Court’s endorsement.

A. The State’s Interest in Securing Evidence

Against Destruction Outweighs the Lesser

Fourth Amendment Interests Implicated by the

Temporary Seizure of Respondent’s Residence.

The Fourth Amendment to the United States Constitu-

tion restricts only searches or seizures that are “unrea-

sonable.” This “key principle” calls for “the balancing of

competing interests.” Dunaway v. New York, 442 U.S.

200, 219 (1979) (White, J., concurring). In each instance

the reviewing court must balance the intrusion upon an

individual’s personal Fourth Amendment rights against

“the public interest” underlying the State’s execution of

a particular procedure. United States v. Brignoni-Ponce,

5 See Vale v. Louisiana, 399 U.S. 30, 41 (1970) (Black, J. dis-

senting) (“This case raises most graphically the question how

does a policeman protect evidence necessary to the State if he

must leave the premises to get a warrant, allowing the evidence

he seeks to be destroyed.”); Griswold, supra n. 4, at 317 (“Does

the police officer have any power to maintain the status quo

while he, or a colleague of his, is taking the time necessary

to draw up a sufficient affidavit to support an application for

a search warrant, and then finding a magistrate, submitting

the application to him, obtaining the search warrant if it is

issued, and then bringing it to the place where the arrest was

made(?}”).

a SR gare

422 U.S. 873, 878 (1975); see also United States v. Place,

462 U.S. 696, 703 (1983) (“We must balance the nature

and quality of the intrusion on the individual’s Fourth

Amendment interests against the importance of the gov-

ernmental interests alleged to justify the intrusion.”);

United States v. Villamonte-Marquez, 462 U.S. 579, 588

(1983). In this case the balance falls in favor of the

State’s interest at the cost of a limited Fourth Amend-

ment intrusion.

By barring Respondent from entering his home while

his fellow officer sought a search warrant, Officer Love

selected a course of action deliberately designed to miti-

gate the nature and extent of the intrusion on the Fourth

Amendment rights of Respondent. The procedure effected

a seizure, and thus implicated interests that figure dif-

ferently in Fourth Amendment analysis than those im-

plicated by a search. A seizure affects a person’s pos-

sessory interest in the property seized, while a search

affects the maintenance of personal privacy. United

States v. Jacobsen, 466 U.S. 109, 113 (1984). And al-

though both interests are protected by the Fourth

Amendment, the physical entry to an individual’s home

is considered “the chief evil against which the wording of

the Fourth Amendment is directed.” United States v.

United States District Court, 407 U.S. 297, 313 (1972); see

also United States v. Chadwick, 433 U.S. 1, 13 and n. 8

(1977).

The infringement upon Respondent’s possessory inter-

ests imposed by the seizure of his home was mitigated in

significant respects. First, the seizure was provisional; it

was undertaken only to allow officers to obtain a search

warrant, and was in effect only as long as it took to

obtain one. Second, the approximately two-hour period

was reasonable; the record would support no suggestion

that this time period was excessive or that the officers

were not diligent in seeking the warrant or returning to

conduct the search. During those two hours Officer Love’s

partner was able to return to the local police station with

Respondent’s wife in tow, draft and cype (or have typed)

a warrant, complaint for warrant, and two affidavits (Jt.

App. 3-10), locate a judge and submit them for his re-

view, obtain his approval and return to Respondent’s

home. Two hours is an eminently reasonable time within

which to accomplish these tasks. Certainly it did not

approach the 19-hour period this Court commented on in

Segura v. United States, 468 U.S. 796, 812-13 (1984)

(opinion of Burger, C.J., joined by O’Connor, J.).

In addition, Officer Love effectively tempered the

effects of the seizure by permitting Respondent to enter

the trailer, albeit only under his observation. As dis-

cussed infra p. 22-24, these instances did not compromise

Respondent’s privacy rights. They did permit Respondent

to exercise some possessory interest in his home by using

the telephone and obtaining cigarettes from inside. While

the seizure of the home was, so long as it lasted, substan-

tially complete, some aspects of Respondent’s possessory

right to make use of it were thus extended to him.

The Appellate Court below may have believed that the

impoundment of Respondent’s trailer also implicated his

interest in avoiding an unreasonable seizure of his per-

son. In the operative portion of its decision the court

observed that, while the police officers had sufficient

cause to secure Respondent’s residence, doing so while

Respondent was actually present “amounted to a con-

structive eviction of [Respondent] from his residence.”

Pet. App. 12; see also Pet. App. 13-14 (“unclear” whether

police seized Respondent’s person). The court found this

case to be different from one in which an occupant ar-

rives after the residence was secured, but did not explain

the reason behind that distinction. Pet. App. 12. For pur-

poses of preserving evidence, there should be no distinc-

tion between one who is on the scene and one who arrives

later, after the premises is already secured; either indi-

vidual, given the improper motive and opportunity, poses

an equal threat to the evidence inside. In this case,

Respondent’s desire and admitted intention to destroy

the evidence if given the chance would not have been

diminished had he arrived after Officer Love had secured

his trailer from entry.

To the extent the court felt that Respondent was per-

sonally seized when he was barred from reentering his

trailer, that conclusion is simply wrong. As the court

itself acknowledged, Respondent was not told he was

under arrest, was not physically restrained, and was

“free to go anywhere in the world except back into his

trailer by himself.” Pet. App. 14; see also Jt. App. 22, 29.

Absent such restraint, Respondent himself was not

seized at all. See United States v. Mendenhall, 446 U.S.

544, 553-54 (1980) (opinion of Stewart, J.). The restric-

tion on a person’s personal liberty imposed by the war-

rantless securing of his residence is “not remarkable,”

3 Wayne R. LaFave, Search and Seizure §6.5(c), at 366

(3"? Ed. 1996), especially considering that the probable

cause that supported that action would also have justi-

fied his warrantless arrest. United States v. Watson, 423

U.S. 411 (1976); cf. Michigan v. Summers, 452 U.S. 692,

703-04 (1981) (probable cause for search warrant pro-

vides connection with occupant justifying detention dur-

ing warrant’s execution).°

For these reasons, the impoundment procedure carried

out by Officer Love resulted in an infringement of Respon-

dent’s Fourth Amendment rights that was substantially

mitigated and considerably less extensive than would

have been occasioned by a search. By contrast, the

State’s interest in this case was considerable. This Court

has accorded substantial weight to the need of investigat-

ing authorities to prevent the destruction, alteration or

concealment of evidence of crimes. Schmerber v. Cali-

fornia, 384 U.S. 757, 770-71 (1966); Preston v. United

States, 376 U.S. 364, 367 (1964); Jeffers v. United States,

342 U.S. 48, 52 (1951). Officer Love’s decision to secure

the premises was made based on his desire to prevent

anyone from “disturb[ing] evidence”, and specifically his

concern that Respondent “could dispose [of] or destroy

the evidence.” Jt. App. 21. The presence of Respondent at

the scene and unrestricted by arrest made that concern

acute. Respondent’s own intentions elevated that concern

beyond the level of speculation. Had Officer Love not

prevented him from doing so, Respondent would, by his

6 Under Illinois law, an officer may make an arrest without a

warrant whenever “(h]Je has reasonable grounds to believe that

the person is committing or has committed an offense.” 725

ILCS 5/107-2(c). The term “offense” includes “a violation of any

penal statute of this State,” 725 ILCS 5/102-15, which would

encompass a misdemeanor.

a te ee

own admission, have destroyed the evidence hidden in

the trailer. Jt. App. 27, 29. In this case, then, the officer’s

concern amounted to a sure thing.

The balance of competing interests tilts in favor of

approving the impoundment procedure. The State’s in-

terest in preserving the marijuana and paraphernalia

hidden in Respondent’s home was meaningful, even com-

pelling, in this case. The presence of Respondent, the per-

son with the strongest motive to destroy the items, made

such destruction a strong possibility; Respondent’s ad-

mitted intentions made it a certainty. On the other side

of the scale, while Respondent did suffer some loss of the

use of his home, this deprivation was confined to a rea-

sonable period directly related to its purpose, namely the

securing of a warrant. More critically, the impoundment

procedure provided a method by which the more grave

intrusion of entry to preserve evidence could be avoided.

Where it may appropriately be used, impoundment thus

serves the Fourth Amendment’s policies not simply by

providing a model of restrained police conduct, but also

by lessening or eliminating the need or motive for greater

intrusion.

B. The Constitution Does Not Require That Police

Obtain a Seizure Warrant Before Temporarily

Seizing a Residence While Awaiting a Search

Warrant.

In securing Respondent’s residence and barring his

entry, Officer Love acted without a warrant. Indeed, the

very purpose of his actions was to freeze the circum-

stances in place while a search warrant was sought. It is

not disputed that Officer Love had probable cause to

believe that marijuana was secreted within Respondent’s

trailer. Respondent’s wife had told him it was there; she

had seen it herself. And, when Officer Love asked her

specifically where it was, she told him where it was

hidden. Because he had probable cause, and because his

seizure of Respondent’s home did not involve entry and

lasted only long enough to allow officers to obtain a

judicial search warrant, the seizure of Respondent’s

trailer required no warrant or showing of particularized

exigent circumstances.

The officer’s decision to secure the premises in this case

accords with this Court’s precedent, and in fact with its

prescriptions, for preserving the status quo pending the

issuance of a search warrant. This Court has stated, on

a number of occasions, that police may seize property

that they have probable cause to believe contains contra-

band for the limited period required to obtain a warrant.

In Arkansas v. Sanders, 442 U.S. 753 (1979), the Court

condemned the warrantless search of a suitcase found in

a car, but observed that the police had acted “commend-

ably” in seizing the suitcase. The proper course of action,

in the Court’s view, would have been to hold on to the

suitcase, unopened, until a warrant could be obtained.

442 U.S. at 761, 766; see also Chadwick, 433 U.S. at 13

(locked footlocker); Chambers v. Maroney, 399 U.S. 42,

51-52 (1970) (automobile). The Court’s understanding

that these warrantless seizures were reasonable has

stemmed from its “preference for a magistrate’s judge-

ment,” 399 U.S. at 51, and its recognition that a search

represents “a far greater intrusion into Fourth Amend-

ment values than [an] impoundment .. .,” Chadwick, 433

U.S. at 13 n. 8.

——

These principles should apply with equal force to a

residence, so long as privacy interests are not compro-

mised. This Court has directly addressed the seizure of

a residence pending issuance of a search warrant only

once, without conclusively resoiving the issue. In Segura

v. United States, 468 U.S. 796 (1984), the Court consid-

ered a more invasive impoundment procedure; the offi-

cers in that case entered an apartment and remained

inside for some 19 hours before a search warrant was

issued. 468 U.S. at 801. The Court upheld the admissibil-

ity of the evidence seized under that warrant, but the

portion of the opinion that addressed the constitutional-

ity of the warrantless securing of the apartment garnered

only two votes. 468 U.S. at 797 n. +; id. at 805-813

(Opinion of Burger, C.J., joined by O’Connor, J.).

Although the instant case is factually distinct from

Segura, and in particular involves less of an intrusion,

the precedential value of that case for this one is clear.

Indeed, while the Court was sharply divided on whether

a residence could be secured in the more intrusive

manner employed in Segura, it appears that the entire

Court—all nine Justices—agreed that the drug enforce-

ment agents could have secured the apartment without

entering in the absence of either a warrant or exigent

circumstances. The Chief Justice, joined by Justice

O’Connor, felt that “secur{ing] the premises from the

outside by a ‘stakeout’ once the security check revealed

that no one . . . [was] in the apartment” would have been

“arguably, the wiser course.” 468 U.S. at 811. Moreover,

the full majority of five Justices joined that portion of the

opinion that addressed the connection between the

agents’ entry and the warrant, in which the Court ob-

served that, “[h]ad the police never entered the apart-

ment, but instead conducted a perimeter stakeout to

prevent anyone from entering the apartment and de-

stroying evidence, the contraband now challenged would

have been discovered and seized precisely as it was here.”

468 U.S. at 814. The four dissenting Justices, while criti-

cal of the agents’ warrantless entry of and extended pres-

ence in the apartment, “assume[d] impoundment would

be permissible even absent exigent circumstances when

it occurs ‘from the outside’—when authorities merely seal

off the premises pending the issuance of a warrant but do

not enter.” 468 U.S. at 824 n. 15 (Stevens, J. dissenting).

See also LaFave, supra §6.5(c), at 366 (“All members of

the Court appear to agree that the mere seizure of the

premises and contents . . . is permissible on probable

cause even absent exigent circumstances.”).’

’ Lower courts have also interpreted Segura as authorizing

impoundment that is either entirely external or involves only

a limited entry for purposes of securing the premises. United

States v. Riley, 968 F.2d 422, 425 n. 5(5" Cir.), cert. denied, 506

U.S. 990 (1992): United States v. Scheets, 188 rv .3d 829, 840 (7"

Cir. 1999), cert. denied, __ U.S. __, 120 S.Ct. 837 (2000);

United States v. Roby, 122 F.3d 1120, 1125 (& Cir. 1997);

United States v. Crespo De Lano, 838 F.2d 1006, 1016 (9" Cir.

1987); United States v. Morales, 868 F.2d 1562, 1575 n. 8 (11"

Cir. 1989); United States v. Hall, 50 M.J. 247, 250-51 (C.M.A.

1999); People v. Griffin, 727 P.2d 55, 59 (Colo. 1986); State v.

Hull, 210 Conn. 481, 497, 556 A.2d 154, 163 (1989); Jones v.

State, 648 So. 2d 669, 676 (Fla. 1994), cert. denied, 515 U.S.

1147 (1995); Commonwealth v. Blake, 604 Mass. 823, 829-30,

604 N.E.2d 1289, 1294 (1992); State v. Alayon, 459 N.W.2d 325,

329-30 (Minn. 1990), cert. denied, 498 U.S. 1049 (1991); State

v. DeLane, 207 N J. Super. 45, 50, 503 A.2d 903, 905 (App. Div.

(continued...)

The assumptions made in Segura are consistent with

those made in other cases in which the Court, while

criticizing warrantless entries made to preserve evidence,

has commented favorably on the power of police officers

to take the lesser step of seizing pending the securing of

a warrant. In Mincey v. Arizona, 437 U.S. 385 (1978), the

Court struck down the warrantless search of a murder

suspect’s apartment. In rejecting a claim of exigent cir-

cumstances amounting to the possible loss, destruction or

removal of evidence, the Court found that possibility

effectively “minimized” by “the police guard at the apart-

ment.” 437 U.S. at 394. The Court rejected a similar ex-

igency argument in Vale v. Louisiana, 399 U.S. 30 (1970),

in part because “the arresting officers [had] satisfied

themselves that no one else was in the house.” 399 U.S.

at 34. That conclusion suggests that, once the officers

had made that determination, they had the power to

maintain that state of affairs while seeking the warrant

that they needed. See also Jeffers, 342 U.S. at 52 (“In

fact, the officers admit they could have easily prevented

any such destruction or removal by merely guarding the

door.”); Trupiano v. United States, 334 U.S. 699, 706

(1948). In the instant case, Officer Love was the very

“police guard” at the door that the Court has contem-

plated.

7 (...continued)

1986); State v. Knight, 340 N.C. 531, 548-49, 459 S.E.2d 481,

492 (1995); State v. Smith, 458 N.W.2d 779, 782 (S.D. 1990);

State v. Kin Ng, 104 Wash. 2d 763, 770-71, 713 P.2d 63, 67

(1985).

While the Court has distinguished between property

and places where warrantless searches are concerned,

Chambers, 399 U.S. at 48, such a distinction is misplaced

where only the seizure of a place, without entry, is at

issue. When they can do so without invading a privacy

interest, police officers are entitled to secure a place in

order to prevent the destruction or other loss ef evidence.

The non-intrusive nature of a seizure, as compared to a

search, excuses the requirement of a warrant so long as

that seizure is confined to a reasonable period necessary

for securing one. See Segura, 468 U.S. at 809-10 (Opinion

of Burger, C.J., joined by O’Connor, J.). As Dean

Griswold noted, “(uJnless there is some kind of a power

to prevent removal of material from the premises, or

destruction of material during this time, the search war-

rant will almost inevitably be fruitless.” Griswold, supra

n. 4, at 317. Indeed, cases like Mincey, Jeffers and even

Vale demonstrate that, where privacy interests are at

stake, securing a residence from the outside is the prefer-

able alternative to a search. Impoundment addresses

legitimate (and in this case decisive) concerns regarding

loss of evidence without the need for intrusion.

By securing Respondent’s home from the outside and

sending his partner off to seek a search warrant, Officer

Love was able to vindicate the State’s interest in prevent-

ing Respondent from destroying the evidence hidden

there without invading the sanctity of his home and thus

perpetrating what has been considered the greater evil.”

* Officer Love’s brief entries to observe Respondent as he made

telephone calls and retrieved his cigarettes do not alter this

analysis, as will be discussed infra p. 22-24.

Indeed, to prohibit this procedure would limit officers

who have “every reason to believe that someone in the

house [is] likely to destroy the contraband if the search

were postponed,” Vale, 399 U.S. at 41 (Black, J. dissent-

ing), to choosing between conducting a warrantless

search and standing by while evidence is altered or

destroyed. One likely result of rejecting impoundment

would therefore be the creation of additional incentives

for warrantless searches; “a rule intended to maximize

security of premises may have the opposite effect upon

security of the person.” LaFave, supra §6.5(c), at 361; see

also People v. Bennett, 17 Cal. 4" 373, 387-88, 949 P.2d

947, 956-57 (1998). In the appropriate case, external

impoundment provides a middle ground that accommo-

dates a policeman’s investigative interest at a lesser cost

to the rights of the individual.®

* This Court should resist the suggestion of several commen-

tators that an officer contributes to the need to secure a place

by seeking Respondent’s consent to search it. See, e.g., Barbara

C. Salken, Balancing Exigency and Privacy in Warrantless

Searches to Prevent Destruction of Evidence: The Need for a

Rule, 39 Hastings L.J. 283, 330-31 (1988); Note, The Securing

of the Premises Exception: A Search for the Proper Balance, 38

Vand. L. Rev. 1589, 1616 (1985). It is not likely that Officer

Love’s knock on Respondent’s door actually informed Re-

spondent of his presence; the officers would not have made

useful “peace-keepers” unless Respondent knew of their pres-

ence as soon as they arrived. In any event, immediate warrant-

less action can be justified by the need to prevent destruction

of evidence even when that need is brought on by the seeking

of consent to obtain it. Cupp v. Murphy, 412 U.S. 291 (1973).

Once the suspect in that case had been “alerted to the desire of

the police” to obtain consent, “there was no way to preserve the

(continued...)

C. Because Officer Love Was Entitled to Bar Re-

spondent from Entering His Trailer Unless

Escorted, the Officer’s Observation of Respon-

dent Inside the Trailer Was a Consensual Accep-

tance of That Condition.

On at least two occasions while they waited for the

warrant, Officer Love permitted Respondent to enter the

trailer while under his observation. Each time Officer

Love stood in the doorway of the trailer and watched

Respondent, but made no further entry or search. Jt.

App. 17, 18, 22-23, 27, 30. The Appellate Court below

determined that, by these entries, Officer Love had also

“secured the dwelling from the inside,” and concluded

therefrom that the officer had executed a warrantless,

* (...continued)

status quo while a warrant was sought, and there was good

reason to believe that Murphy might attempt toalter the status

quo unless he were prevented from doing so.” 412 U.S. at 298

(Marshall, J., concurring).

The officers’ ability to impound the trailer should not be lost

because they first sought consent to search. Officer Love did not

seek consent as a pretext to create the need to impound. Absent

such a concern, this Court should not discourage the seeking of

consent by requiring the police to risk their ability to preserve

evidence if it is refused. While warrant searches are generally

preferable to those conducted without a warrant, searches by

voluntary and knowing consent are better still; they take less

time and do not consume judicial resources. Cf. Schneckloth v.

Bustamante, 412 U.S. 218, 228, 243 (1973). Informal investi-

gative procedures are necessarily widely used and can be more

effective and efficient than the invocation of judicial process.

They may also be preferred by individuals who would rather

abide an immediate and informal search than await a court

order.

and therefore illegal, search of the trailer. The court dis-

tinguished Segura on the ground that Respondent in this

case was not under arrest during the time his trailer was

secured, and therefore was present and in a position to

exercise some dominion over the trailer. Pet. App. 12-13.

As noted supra p. 12, the real consequence of these

brief and cabined entries was to lessen the intrusion

upon Respondent’s Fourth Amendment interests by

actually permitting him to continue to exercise some

possessory rights in his residence. Because Officer Love

was entitled to secure the residence as he did in order

to prevent the destruction of evidence, as discussed

above, he was entitled to bar Respondent’s entry. Respon-

dent’s decision to accept Officer Love’s conditions was

therefore voluntary on his part, and the officer’s presence

in the doorway was consensual. In fact, Officer Love’s

terms essentially empowered both the officer and Re-

spondent. Officer Love was entitled to keep Respondent

out of the trailer entirely; similarly, had Respondent

desired to prevent Officer Love from entering, he could

have done so by simply staying outside himself.

The Appellate Court’s reasoning, if followed to its

logical conclusion, suggests that arresting Respondent

would have lessened his possessory interest by making

him unavailable to exercise it. See also Segura, 486 U.S.

at 813 (Opinion of Burger, C.J., joined by O’Connor, J.);

but see id. at 826-27 (Stevens, J. dissenting). It is difficult

to understand how the additional personal infringement

attendant to an arrest would have reduced Respondent’s

possessory interest. In any event, it is unlikely that

Respondent would have preferred that alternative. In

addition, Officer Love observed nothing of any conse-

quence, and certainly nothing inculpatory, as a result of

these looks inside; these entries, even if illegal, cannot

therefore be said to have “contribute[d] in any way to

discovery of the evidence seized under the warrant.”

Segura, 468 U.S. at 815.

CONCLUSION

The judgment of the Appellate Court of Illinois should

be reversed.

July 13, 2000

Respectfully submitted,