# Petitioners Brief — Illinois v. McArthur

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 326

## Text

No. 99-1132 JUL 13 2000

. g

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)

i}

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-
ee
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

iv

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

v

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)

vi
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

1

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.

2

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

ee

3

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).

4

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 ~~ —
ee

5

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).

6

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.

~~

7
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).

8

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

9

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

10

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

we

11

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

12

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

13

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-

14

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

15

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

16

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.

——

17

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-

18

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...)

19

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).

20

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.

a

21

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...)

22

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.

23

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-

24

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,

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0350%3A06. Public record. Not legal advice.