Amicus Curiae Brief — Illinois v. McArthur

4

No. oot «= JUL 13 2000

Jn the Supreme Court of the United States

ILLINOIS, PETITIONER

CHARLES MCARTHUR

ON WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

SETH P. WAXMAN

Solicitor General

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

MATTHEW D. ROBERTS

Assistant to the Solicitor

General

DEBORAH WATSON

Attorney

De partment of Justice

Washington, D.C. 20530-0001

(202) 514-2217

LS ET ST LT, LE A

QUESTION PRESENTED

Whether police officers who have probable cause to

believe that a residence contains incriminating evidence

may temporarily prevent entry in order to preserve the

evidence while they seek a search warrant.

(I)

TABLE OF CONTENTS

Page

Interest of the United States 1

Statement 1

Summary of argument 4

Argument:

Police officers who have probable cause to believe

that a residence contains incriminating evidence

may temporarily prevent entry in order to pre-

serve the evidence while they seek a warrant ................. 6

A. By preventing entry into respondent’s

trailer, the police officers seized the trailer

but did not seize respondent 8

B. The temporary seizure of respondent’s trailer

was reasonable because the officers had prob-

able cause to believe that it contained incrimi-

nating evidence 11

C. Individualized suspicion that evidence would

be destroyed was not necessary to support the

temporary seizure - 19

D. This case involves neither a constructive

eviction nor a search without a warrant or

consent - 24

Conclusion sasenenenuenneneenenOInEMnNNNERENNIRENENNNSEEND 26

TABLE OF AUTHORITIES

Cases:

Adams v. Williams, 407 U.S. 143 (1972) 14

Arkansas v. Sanders, 442 U.S. 753 (1979) ........ 5, 13, 15, 20

California v. Acevedo, 500 U.S. 565 (1991) ............ 14-15, 20

California v. Hodari D., 499 U.S. 621 (1991) ...........000. 8,9

Carroll v. United States, 267 U.S. 132 (1925) ............... 5,13

Chambers v. Maroney, 399 U.S. 42 (1970) ........cc00 20, 21

Chicago v. Morales, 527 U.S. 41 (1999) .........ccccccccceeeeeeee 10

(IIT)

IV

Cases—Continued: Page

Chimel v. California, 395 U.S. 752 (1969) ..............0000+ 13, 22

Colorado v. Bannister, 449 U.S. 1 (1980) 20.0.0... 9

Dolan v. City of Tigard, 512 U.S. 374 (1994) ............0000+ 25

Flippo v. West Virginia, 120 S. Ct. 7 (1999) ........... 17, 18, 22

Florida v. Bostick, 501 U.S. 429 (1991) .........ccccccccceseseeeeees 9

G.M. Leasing Corp. v. United States, 429 U.S. 338

(1987) 16

Harris v. United States, 390 U.S. 234 (1968) ................. 9

Horton v. California, 496 U.S. 128 (19990) ................. 5, 9, 13,

15, 21

Illinois v. Rodriguez, 497 U.S. 177 (1990) ...........ccceevee 25

Jones v. United States, 357 U.S. 493 (1958) .................. 14, 16

Katz v. United States, 389 U.S. 347 (1967) «0.0.0... 24

Ker v. California, 374 U.S. 23 (1968) ............ccccccccencseseseees 12

Maryland v. Wilson, 519 U.S. 408 (1987) .. 11

Michigan v. Summers, 452 U.S. 692 (1981) ............. 10, 12,14

Michigan v. Tyler, 436 U.S. 499 (1978) .........cccccccceeeens 13

Mincey v. Arizona, 437 U.S. 385 (1978) «2.0... 17, 22

New York v. Harris, 495 U.S. 14 (1990) 0.0.0.0... 16, 26

Payton v. New York, 445 U.S. 573 (1980) 0.0.0... 5, 16

Richards v. Wisconsin, 520 U.S. 385 (1997) ............000. 12, 13

Segura v. United States, 468 U.S. 796 (19864)............ passim

Silverthorne Lumber Co. v. United States, 251 US.

en 11

Soldal v. Cook County, 506 U.S. 56 (1992) 0.0... 13, 14

United States v. Brignoni-Ponce, 422 U.S. 873

(1975) 14

United States v. Chadwick, 433 U.S. 1 (1977) ....... 13, 14, 21

United States v. Crews, 445 U.S. 463 (1980) ................ 11, 26

United States v. Jacobsen, 466 U.S. 109 (1984) ............. 8,13

United States v. James Daniel Good Real Property,

ag 8 17

United States v. Jeffers, 342 U.S. 48 (1951) ........... 13, 17, 22

United States v. Leon, 468 U.S. 897 (19864) .............. wants 8

eee ee ee eee

Vv

Cases—Continued: Page

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

(1980) )

United States v. Place, 462 U.S. 696 (1983) .............. 5, 8, 13,

14, 15, 17, 21

United States v. Rosi, 27 F.3d 409 (9th Cir.

1994) ..... 26

United States v. Santana, 427 US. 38 (1976) ............ 6, 13, 24

United States v. Van Leeuwen, 397 U.S. 249

(1970) 14

United States v. Watson, 423 U.S. 411 (1976) ......... 21-22, 23

Warden v. Hayden, 387 U.S. 294 (1967) ............ccccceseeereeveee 13

Wyoming v. Houghton, 526 U.S. 295 (1999) ...........000000 23

Constitution and statutes:

FN ea passim

726 iil. Comp. Stat. (West 1993 & Supp. 2000):

§ 5/31-4(a) .... setsippdariepndsabbabemmmmentncntndmineentiienerenmianiéts 11

ee cmemnennsmannen sscnusnseneminiemmenmimsiizacnomanaine 10

§ 600/3.5 (Supp. 2000) - 10

Miscellaneous:

2 John Bouvier, A Law Dictionary (6th ed. 1856) .............. 8

Erwin Griswold, Criminal Procedure, 1969—Is It a

Means or an End?, 29 Md. L. Rev. 307 (1969) ................. 12

Wayne R. LaFave, Search and Seizure:

TS 8-9, 24

(ee 14

Vol. 3 (3d ed. 1996 & Supp. 1999) 3, 8, 19, 22

2 NoahWebster, An American Dictionary of the

English Language (1828) si ~

Webster's Third New International Dictionary

EE Aer Hoe ore) eee ee 8

S. Rep. No. 2464, 81st Cong., 2d Sess. (1950) 00.2.0... 22

——_—-—— —-_>

In the Supreme Court of the Anited States

No. 99-1132

ILLINOIS, PETITIONER

Vv.

CHARLES MCARTHUR

ON WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether police

officers who have probable cause to believe that a

residence contains incriminating evidence may tem-

porarily prevent entry while they seek a search war-

rant. The United States has a significant law enforce-

ment interest in ensuring that police officers may take

that reasonable step in order to preserve the evidence

that is the object of the warrant.

STATEMENT

On April 2, 1997, respondent’s wife went to the

trailer she shared with respondent to remove her

property from the residence. At her request, two police

officers accompanied her. Pet. App. 2. The officers

remained outside the trailer while she removed her

belongings. J.A. 25-26. Afterwards, she told the

(1)

2

officers that respondent had marijuana hidden under

the couch. An officer then knocked on the door and,

when respondent answered, informed him of his wife’s

accusation and asked for permission to search the

trai | Respondent denied that he had drugs in the

trailer out refused to consent to a search. Pet. App. 2.

Within earshot of respondent, who had come out on

the porch in front of the trailer, one of the officers asked

respondent’s wife if she would accompany the other

officer to a magistrate to obtain a search warrant. J.A.

26; Pet. App. 2. She agreed and departed with one of

the officers. The other officer told respondent what

was happening. From that time until the officers ob-

tained the warrant, they did not allow respondent to

enter the trailer unless he agreed to be accompanied by

an officer. Respondent, so accompanied, entered the

trailer two or three times to obtain cigarettes and to

make telephone calls. At those times, the officer stood

just inside the doorway. Pet. App. 2-3. Following one

of the phone calls, respondent’s mother arrived at the

residence. She too was told that she was not permitted

to enter unless accompanied by an officer. J.A. 17-18.

While the police officers awaited the arrival of the

warrant, no officer told respondent that he was under

arrest, threatened or restrained him, placed him in

handcuffs, or told him he was not free to leave. Pet.

App. 3. In less than two hours, an officer returned with

the warrant, at which time the officers entered the

trailer, located the marijuana and drug paraphernalia,

and placed respondent under arrest. /bid.; J.A. 27.

Respondent was charged with possession of cannabis

and drug paraphernalia, in violation of Illinois law. He

filed a pretrial motion to suppress the evidence on the

ground that the police officers had violated the Fourth

Amendment by preventing him from entering his

3

trailer while they obtained the search warrant. Pet.

App. 1-2. He did not contest the validity of the warrant

or that the officers had probable cause to believe the

residence contained marijuana and to secure the

residence. /d. at 4. At the suppression hearing, respon-

dent testified that he would have destroyed the mari-

juana if he had been permitted to enter the trailer

alone. J.A. 27.

The trial court granted respondent’s motion to sup-

press, and the Appellate Court of Illinois affirmed. Pet.

App. 1-14. The appellate court noted that, in Segura v.

United States, 468 U.S. 796 (1984), “the Court seemed

to agree that the seizure of a residence and its contents

is permissible absent exigent circumstances if there is

probable cause, but that entry into the residence when

securing it requires probable cause and exigent circum-

stances.” Pet. App. 8. The appellate court opined, how-

ever, that Segura did not address whether police offi-

cers, while securing a dwelling, may “limit the freedom

of movement of persons within, into or out of the

secured premises.” /bid. (quoting 3 Wayne R. LaFave,

Search and Seizure § 6.5(c) at 366 (3d ed. 1996)) (inter-

nal quotation marks omitted). The court also noted that

Segura did not address cases in which “police enter and

incident to the entry either keep persons entitled to be

in the premises under close scrutiny or else require

such persons to leave or not enter those premises.”

Ibid. (quoting 3 LaFave, supra, § 6.5(c) at 365).

The court concluded that “[t]his case represents a

situation that Segura did not address” and that “there

was no authority for the police action in this case.” Pet.

App. 12. The court recognized that “there is no evi-

dence the police affirmatively ordered [respondent] out

of the trailer.” Jd. at 11-12. The court nonetheless held

that “the police conduct amounted to a constructive

4

eviction of [respondent] from his residence” because

respondent was on “the front porch when police told

him he had to remain outside the trailer” and he was

thus “still on his premises.” Jd. at 12. The court further

concluded that the police officers “secured the dwelling

from the inside” because an officer accompanied respon-

dent when he went inside to obtain cigarettes and to

make phone calls. /bid. That entry, the court held, was

illegal because, in the court’s view, it was not justified

by exigent circumstances. The court concluded that

“the police conduct in securing [respondent’s] residence

while awaiting the search warrant was an unreasonable

seizure (and probably an unreasonable search) under

the fourth amendment so that the evidence discovered

in the residence upon execution of the search warrant

was properly suppressed.” /d. at 13.' The Supreme

Court of Illinois denied petitioner leave to appeal. /d.

at 15.

SUMMARY OF ARGUMENT

Although the police officers seized respondent’s

trailer when they temporarily prevented his entry, that

seizure was reasonable under the Fourth Amendment.

To determine the reasonableness of a seizure, the Court

balances the government’s law enforcement interests

against the intrusion on Fourth Amendment interests.

That analysis indicates that police officers who have

probable cause to believe that a residence contains

1 The court speculated that the police officers may also have

unlawfully seized respondent, but it did not decide that issue. Pet.

App. 13-14. The court did not address petitioner’s argument

(Illinois Br. 18, 35-37) that, even if securing respondent’s residence

was unlawful, the contraband discovered later during the search

pursuant to a valid, untainted warrant was admissible because it

had an independent source.

5

evidence may temporarily prevent entry in order to

preserve the evidence while they seek a warrant. -

The Court has repeatedly recognized that there is a

strong law enforcement interest in preventing tamper-

ing with evidence. On the other side of the balance, the

intrusion caused by a seizure, which invades only pos-

sessory and not privacy interests, is limited. Moreover,

the seizure here—a bar on entry pending issuance of a

warrant—is temporary and restricts only immediate

use of the property.

The Court’s precedents confirm that the interest in

preserving evidence can temporarily supercede an

individual’s possessory interest in property when there

is probable cause to believe that the property contains

incriminating evidence. Police officers may make such

warrantless seizures of evidence in plain view; they

may also seize containers and vehicles based on prob-

able cause to believe that they are associated with

criminal activity. See Horton v. California, 496 U.S.

128, 136-137 (1990); United States v. Place, 462 U.S.

696, 701-702 (1983); Arkansas v. Sanders, 442 U.S. 753,

761 (1979); Carroll v. United States, 267 U.S. 132, 153

(1925). In dicta, the Court has approved the conduct at

issue here—securing premises from the outside to pre-

vent destruction of evidence within. See, e.g., Segura v.

United States, 468 U.S. 796 (1984). Because securing a

dwelling from the outside by preventing entry does not

invade the physical integrity of the residence or the

privacy of the occupants, the rule that a warrant or a

valid exception is required when police officers enter or

search a home is not implicated. Cf. Payton v. New

York, 445 U.S. 573 (1980).

Although the police officers had particularized suspi-

cion that respondent would destroy evidence if he was

allowed to enter his trailer unaccompanied, the Fourth

6

Amendment does not require such individualized suspi-

cion before officers may secure a residence from the

outside while seeking a warrant. The inherent risk of

tampering with evidence justifies that limited interfer-

ence with the owner’s use of his property. Requiring

individualized suspicion would impose unwarranted

impediments to law enforcement and generate unnec-

essary litigation.

The Appellate Court of Illinois erred in concluding

that the police officers constructively evicted respon-

dent and entered his trailer without his consent or a

warrant. Respondent was on his front porch when the

officers prevented his entry into the trailer, and that

location, which is exposed to and used by the visiting

public, is not protected by the Fourth Amendment from

government intrusion. See United States v. Santana,

427 U.S. 38, 42 (1976). An officer entered the trailer

without a warrant only to accompany respondent when

he made phone calls and obtained cigarettes. Respon-

dent, who had lawfully been instructed that he could

only enter if he agreed to be accompanied, consented to

those entries.

ARGUMENT

POLICE OFFICERS WHO HAVE PROBABLE CAUSE

TO BELIEVE THAT A RESIDENCE CONTAINS

INCRIMINATING EVIDENCE MAY TEMPORARILY

PREVENT ENTRY IN ORDER TO PRESERVE THE

EVIDENCE WHILE THEY SEEK A WARRANT

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

Court held that the Fourth Amendment’s exclusionary

rule did not require the suppression of evidence seized

from a residence pursuant to a valid search warrant

even though federal agents had earlier entered illegally

and then remained inside to prevent destruction of

— — ee - —

7

evidence. /d. at 799, 813-816. Five Justices agreed that

the exclusionary rule did not apply. [bid. Two Justices

also addressed whether the agents’ securing of the

premises complied with the Fourth Amendment. 7d. at

805-813 (Burger, C.J., joined by O’Connor, J.). Chief

Justice Burger and Justice O’Connor concluded that,

when police officers have probable cause to believe that

a residence contains evidence of criminal activity, they

may temporarily secure the dwelling to prevent re-

moval or destruction of evidence. [bid.

This case poses a question similar to the one ad-

dressed by Chief Justice Burger and Justice O’Connor

in Segura: whether police officers may, while they seek

a search warrant, secure a residence (in this case, from

the outside) when they have probable cause to believe

that it contains incriminating evidence. As the Appel-

late Court of Illinois recognized, “[a]t the heart of this

issue is the preservation of evidence. Clearly, if police

secure a dwelling they prohibit the destruction of the

sought-after evidence. On the other hand, if police do

not secure a dwelling, they risk losing the evidence.”

Pet. App. 11. Contrary to the conclusion of the appel-

late court, however, the Fourth Amendment does not

prevent police officers from guarding against that risk.

Police officers who have probable cause to believe that

a residence contains incriminating evidence may tem-

porarily prevent entry in order to preserve the status

quo while they seek a warrant.”

2 Respondent has contested neither the existence of probable

cause to believe that his trailer contained marijuana nor the valid-

ity of the search warrant obtained by the police officers. Pet. App.

4. This case therefore does not present the question whether a

temporary prohibition on entry into a residence requires suppres-

sion when police officers reasonably believe that they have prob-

able cause but a magistrate or a reviewing court ultimately

8

A. By Preventing Entry Into Respondent's Trailer, The

Police Officers Seized The Trailer But Did Not Seize

Respondent

“From the time of the founding to the present, the

word ‘seizure’ has meant a ‘taking possession.’” Califo-

nia v. Hodari D., 499 U.S. 621, 624 (1991) (quoting 2

Noah Webster, An American Dictionary of the English

Language 67 (1828); 2 John Bouvier, A Law Dictionary

510 (6th ed. 1856); Webster’s Third New International

Dictionary 2057 (1981)). A seizure of property thus

occurs “when there is some meaningful interference

with an individual’s possessory interests in that pro-

perty.” United States v. Jacobsen, 466 U.S. 109, 113

(1984). Therefore, the police officers “seized” respon-

dent’s trailer when they interfered with his possessory

interests by temporarily preventing his unaccompanied

entry.”

determines that their belief was mistaken. Cf. United States v.

Leon, 468 U.S. 897, 926 (1984). Nor does the case present the ques-

tion whether preventing entry may be justified in some circum-

stances when police officers have only reasonable suspicion that

the premises contain incriminating evidence. Cf. United States v.

Place, 462 U.S. 696, 702 (1983). Finally, as we explain at pp. 24-26,

infra, this case does nuit present the question whether police

officers can either enter the premises or order the occupants to

leave in order to secure the premises. See generally 3 Wayne R.

LaFave, Search and Seizure § 6.5(c) at 361-373 (3d ed. 1996 &

Supp. 1999).

3 The seizure of the trailer was not, however, also a seizure of

the contraband that the officers discovered only when they later

searched the trailer pursuant to a warrant. Police officers seize a

tangible, movable object only when they take it under their physi-

cal control. See Hodari D., 499 U.S. at 624 (“For most purposes at

common law, [“seizure”] connoted not merely grasping, or applying

physical force to, the animate or inanimate object in question, but

actually bringing it within physical control.”); 1 LaFave, supra,

_—— ——_—— i — ee

9

Although the officers seized respondent’s residence

by securing it and preventing unaccompanied entries,

they did not seize respondent. A seizure of a person

occurs only when “a reasonable person would believe

that he or she is not ‘free to leave.’” Florida v. Bostick,

501 U.S. 429, 435 (1991); see also Hodari D., 499 U.S. at

627-628. Circumstances that “might indicate a seizure

* * * [include] the threatening presence of several

officers, the display of a weapon by an officer, some

physical touching of the-person of the citizen, or the use

of language or tone of voice indicating that compliance

with the officer’s request might be compelled.” United

States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion

of Stewart, J.).

The only restriction on respondent’s movements was

that he was not allowed to enter his trailer (unless

accompanied by an officer) for less than two hours while

the police obtained a search warrant. He was not

threatened or physically restrained; he was not hand-

cuffed; he was not told that he was under arrest or

given Miranda warnings. J.A. 29-30; Pet. App. 14.

Under those circumstances, a reasonable person would

§ 2.1, at 375-376 (3d ed. 1996) (defining seizure as the “act of physi-

cally taking and removing tangible personal property”). Police

officers therefore do not seize evidence until they actually discover

it and assert control over it, even if they have secured the prem-

ises where the evidence is located. For that reason, the Court has

given detailed consideration to the circumstances in which police

officers may seize evidence found in plain view while executing a

warrant, even though the area being searched is already under

their custody and control. See, e.g., Horton v. California, 496 U.S.

128 (1990). And the Court has characterized the taking of individ-

ual items from an automobile as a seizure even when police officers

had previously seized the automobile. See, eg., Colorado v.

Bannister, 449 U.S. 1, 3-4 (1980); Harris v. United States, 390 U.S.

234, 236 (1968).

10

not have believed that he was unable to go anywhere

else he desired. ludeed, respondent agreed that the

officers never indicated that he was not free to leave.

J.A. 29. Thus, he was not seized within the meaning of

the Fourth Amendment.

A contrary conclusion could cast doubt on the validity

of well-established law enforcement practices that are

commonly recognized as constitutional. Police officers

often must cordon off an area during an investigation,

for example, to apprehend a fugitive or to investigate a

bomb threat. When they do so, they do not thereby

seize the persons whom they prevent from entering the

area. Cf. Chicago v. Morales, 527 U.S. 41, 69 (1999)

(Kennedy, J., concurring in part and concurring in the

judgment) (discussing with approval situations in which

“the police tell a pedestrian not to enter a building and

the reason is to avoid impeding a rescue team, or to

protect a crime scene, or to secure an area for the

protection of a public official”).*

4 In any event, seizure of respondent would have been justified

because police officers had probable cause to believe he had com-

mitted a crime based on his wife’s statement that he had marijuana

hidden under his couch. See J.A. 15, 19; 720 Ill. Comp. Stat. 550/4

(West 1993 & Supp. 2000) (criminalizing possession of marijuana);

id. 600/3.5 (West 2000) (criminalizing possession of drug para-

phernalia). This case does not present the question whether,

absent probable cause, seizure of respondent would have been

justified as incident to the temporary seizure of his trailer pending

issuance of a warrant. Cf. Michigan v. Summers, 452 U.S. 692, 705

(1981) (“a warrant to search for contraband founded on probable

cause implicitly carries with it the limited authority to detain the

occupants of the premises while a proper search is conducted”)

(footnote omitted); id. at 702 n.17 (suggesting that the Court would

reach the same result with regard to a lawful search without a

warrant).

_— rrr -

——————

1]

B. The Temporary Seizure Of Respondent's Trailer Was

Reasonable Because The Officers Had Probable Cause

To Believe That It Contained Incriminating Evidence

1. The essential requirement of the Fourth Amend-

ment is that searches and seizures be reasonable. See

Maryland v. Wilson, 519 U.S. 408, 411 (1997). To deter-

mine the reasonableness of a search or seizure, the

Court balances the government’s law enforcement

interests against the intrusion on Fourth Amendment

interests. /bid. Application of that analysis here indi-

cates that the police officers acted reasonably in tem-

porarily preventing entry into respondent’s trailer,

which they had preoable cause to believe contained

incriminating evidence, in order to preserve that

evidence while they sought a warrant.°

5 Even if the seizure of respondent’s residence had been unlaw-

ful, the Illinois courts should not have excluded the evidence,

which was seized in a lawful search pursuant to a valid, untainted

warrant. The warrant, the validity of which respondent does not

contest, Pet. App. 4, was supported by information that the officers

obtained from respondent's wife before any interference with

respondent's Fourth Amendment interests. As we noted at pp. 6-

7, supra, the Court held in Segura that evidence obtained pursuant

to such a warrant is admissible based on the “independent source”

rule regardless of whether unlawful police action preserved the

evidence. See 468 U.S. at 813-816; see generally Silverthorne

Lumber Co. v. United States, 251 U.S. 385, 392 (1920). That hold-

ing applies here. The only sense in which the seized evidence could

be viewed as “in some sense the product of illegal governmental

activity,” United States v. Crews, 445 U.S. 463, 471 (1980), is

because respondent would have illegally destroyed the evidence if

the officers had not prevented his entry into the trailer. See J.A.

27; 720 Ill. Comp. Stat. 5/31-4(a) (West 1993 & Supp. 2000)

(criminalizing destruction of evidence to prevent apprehension).

The Court rejected that reasoning in Segura, explaining that there

is no “‘constitutional right’ to destroy evidence.” 468 U.S. at 816.

As we explained at note 1, supra, the appellate court did not

12

a. Law enforcement has a strong interest in preven-

ing tampering with evidence pending the issuance and

execution of a warrant to search for and seize that

evidence. “Unless there is some kind of a power to

prevent removal of material from the premises, or

destruction of material during this time, the search

warrant will almost inevitably be fruitless.” Segura,

468 U.S. at 809 n.7 (Burger, C.J., joined by O’Connor,

J.) (quoting Erwin Griswold, Criminal Procedure, 1969

—Is It a Means or an End?, 29 Md. L. Rev. 307, 317

(1969)). That interest is particularly pronounced in the

case of evidence that is capable of ready destruction,

such as narcotics. See Richards v. Wisconsin, 520 U.S.

385, 391 (1997) (drug investigations frequently present

the risk that evidence will be destroyed if occupants

have advance notice of a search); Michigan v. Sum-

mers, 452 U.S. 692, 702 (1981) (search for narcotics

likely to trigger “frantic efforts to conceal or destroy

evidence”); Ker v. California, 374 U.S. 23, 28 n.3 (1963)

(likely that suspects will attempt to dispose of drugs

before police seize them). Indeed, respondent acknowl-

edged that he would have destroyed the marijuana if he

had been allowed to reenter his trailer unaccompanied

by an officer. J.A. 27.

This Court has recognized the importance of the

interest in preventing tampering with evidence in a

variety of contexts. A limited search incident to an

arrest is permitted in part because of the danger of

destruction of evidence, even when police officers have

address the independent-source issue in its opinion in this case,

although petitioner raised the issue. In their briefs before the

appellate court, the parties disputed whether petitioner had prop-

erly preserved the issue. See Defendant-Appellee Br. 3; Illinois

Reply Br. 12-16.

$< =_

13

no individualized suspicion that the person arrested is

concealing evidence or intends to destroy it. See

Chimel v. California, 395 U.S. 752, 763 (1969). The risk

of losing evidence likewise supports the rules that in-

criminating evidence found in plain view, and contain-

ers and vehicles linked with criminal activity, may be

seized without a warrant. See United States v. Place,

462 U.S. 696, 701-702 (1983); Arkansas v. Sanders, 442

U.S. 753, 761 (1979); Carroll v. United States, 267 U.S.

132, 153 (1925). The danger that evidence may be lost

also underlies the authority of firefighting officials to

remain in a building for a reasonable time and search it

after extinguishing a fire. Michigan v. Tyler, 436 U.S.

499, 510 (1978). Indeed, when police officers have in-

dividualized suspicion that evidence will be destroyed,

they may make intrusions as significant as entering a

dwelling without knocking and announcing their

presence or obtaining a warrant. See, e.g., Richards,

520 U.S. at 395; United States v. Santana, 427 U.S. 38,

43 (1976); United States v. Jeffers, 342 U.S. 48, 51-52

(1951).

b. The intrusion on Fourth Amendment interests at

issue here—temporarily preventing entry into a resi-

dence while police officers seek a warrant—is limited.

Unlike a search, which invades privacy interests, a sei-

zure affects only possessory interests. See Horton v.

California, 496 U.S. 128, 133 (1990); Soldal v. Cook

County, 506 U.S. 56, 62-63 (1992); Jacobsen, 466 U.S. at

113 & n.5, 122, 126 (1983); United States v. Chadwick,

433 U.S. 1, 13-14 & n.8 (1977). Seizures of property,

such as the prohibition on entry here, are thus gener-

ally less intrusive than searches, because privacy is the

“principal object” protected by the Fourth Amendment,

Warden v. Hayden, 387 U.S. 294, 304 (1967). See

Segura, 468 U.S. at 806 (Burger, C.J., joined by

M4

O’Connor, J.); Chadwick, 433 U.S. at 13-14 n.8. See also

Jones v. United States, 357 U.S. 493, 498 (1958) (“The

decisions of this Court have time and again underscored

the essential purpose of the Fourth Amendment to

shield the citizen from unwarranted invasions into his

privacy.”). Cf. Soldal, 506 U.S. at 62-66 (rejecting

contention that seizures involving no intrusion on

privacy or personal liberty are immune from scrutiny

under the Fourth Amendment).

The intrusion on respondent’s Fourth Amendment

interests was particularly limited because the police

officers prohibited entry into his trailer only temporar-

ily (for less than two hours while they obtained a search

warrant) and because they did not infringe his other

possessory interests—such as the right to sell or to

encumber the property. See J.A. 27. This Court has

repeatedly recognized that temporary seizures are less

intrusive than permanent ones. See, e.g., Place, 462

U.S. at 705-706, 709; Summers, 452 U.S. at 701, 705

n.21; United States v. Brignoni-Ponce, 422 U.S. 873, 880

(1975); Adams v. Williams, 407 U.S. 143, 146 (1972);

United States v. Van Leeuwen, 397 U.S. 249, 252-253

(1970).

Moreover, the intrusiveness of a seizure to preserve

evidence while police officers seek a warrant is further

reduced because there should be a prompt judicial

determination whether there is probable cause to

search the house and seize evidence within it. See

Place, 462 U.S. at 709; Summers, 452 U.S. at 701 n.14

(quoting with approval 3 Wayne R. LaFave, Search

and Seizure § 9.2, at 40 (1978) (reasonableness of a

detention may be determined in part by “whether the

police are diligently pursuing a means of investigation

which is likely to resolve the matter one way or another

very soon”)); California v. Acevedo, 500 U.S. 565, 575

15

(1991) (“we can assume that a warrant will be routinely

forthcoming in the overwhelming majority of cases”).

2. The Court’s precedents confirm that “society's

interest in the discovery and protection of incriminating

evidence from removal or destruction can supersede, at

least for a limited period, a person’s possessory interest

in property, provided that there is probable cause to

believe that that property is associated with criminal

activity.” Segura, 468 U.S. at 808 (Burger, C.J., joined

by O’Connor, J.). For example, as we discussed above,

if police officers have probable cause to believe that a

container holds evidence, they may seize the container

while they secure a warrant. See, e.g., Acevedo, 500

US. at 575; Sanders, 442 U.S. at 761. Indeed, they may

seize it pending investigation based upon reasonable

suspicion. See Place, 462 U.S. at 706. Further, when

police officers are lawfully present in a particular place,

they may seize evidence in plain view provided they

have probable cause to believe that it is associated with

criminal activity. See, e.g., Horton, 496 U.S. at 136-137;

Place, 462 U.S. at 701-702. These precedents reflect

the principle that, because of the general risk of

tampering with or loss of evidence, police officers may

take reasonable measures to preserve the status quo

pending issuance of a search warrant.

That principle also applies when, as in this case,

police officers have probable cause to believe that evi-

dence is contained in a dwelling. They may secure the

dwelling to preserve the evidence by preventing entry

for a reasonable period while they seek a warrant to

search for and seize the evidence.

6 The intrusion on respondent's Fourth Amendment interests

was even more limited because the police allowed him to enter his

trailer accompanied by an officer. J.A. 22, 27-28, 30.

16

a. Absent consent or exigent circumstances, a war-

rant is generally necessary to enter a dwelling whether

to make an arrest or to search for and seize evidence

that may be inside. See Payton v. New York, 445 U.S.

573, 586-590 (1980); G.M. Leasing Corp. v. United

States, 429 U.S. 338, 354 (1977). “But the home is

sacred in Fourth Amendment terms not primarily be-

cause of the occupants’ possessory interests in the

premises, but because of their privacy interesis in the

activities that take place within.” Segura, 468 U.S. at

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

As the Court made clear in Payton, “the physical

entry of the home is the chief evil against which the

wording of the Fourth Amendment is directest.” 445

U.S. at 585. Entry into a dwelling invades the privacy

interests that lie at the heart of the Fourth Amend-

ment. See id. at 587-588 & n.26; Jones, 357 U.S. at 498.

Therefore, “the Fourth Amendment has drawn a firm

line at the entrance to the house. Absent exigent cir-

cumstances [or consent], that threshold may not reason-

ably be crossed without a warrant.” 445 U.S. at 590.

See also New York v. Harris, 495 U.S. 14, 17 (1990) (ex-

plaining that “the rule in Payton was designed to pro-

tect the physical integrity of the home”) (emphasis

added).

When police officers temporarily secure a dwelling

from the outside, as they did here, they do not make an

entry or otherwise invade the occupant’s privacy inter-

ests in the home. The considerations that justify the

warrant requirement are therefore absent, and the

general rule permitting temporary seizures to preserve

evidence based on probable cause applies.’

7 Of course, a temporary seizure that would otherwise be lawful

may be rendered unlawful by the manner in which it is executed,

17

b. The Court’s opinions reflect the understanding

that a temporary seizure of a dwelling to preserve evi-

dence pending issuance of a warrant is reasonable un-

der the Fourth Amendment. For example, in Jeffers,

342 U.S. at 52, the Court held that a warrantless entry

into a hotel room was unconstitutional because there

were no exigent circumstances, such as “imminent

destruction, removal, or concealment of the property

intended to be seized.” The Court reasoned that police

officers “could have easily prevented any such destruc-

tion or removal by merely guarding the door.” /bid.

Similarly, in Mincey v. Arizona, 437 U.S. 385, 395

(1978), the Court held unconstitutional a warrantless

search of an apartment in which a homicide had been

committed. The Court noted approvingly, however, the

use of a police guard to prevent destruction of evidence.

Id. at 394. And, in Flippo v. West Virginia, 120 S. Ct. 7

(1999) (per curiam), the Court reaffirmed that a war-

rantless search of a dwelling in which a homicide has

occurred is not permitted, but did not suggest that

police officers acted improperly in “clos{ing] off the

area” (ibid.) and “secur[ing]” the scene (id. at 8).

Indeed, in rejecting the contention that the trial court

had found the search justified by exigent circum-

including its duration. See Place, 462 U.S. at 707-710. And a total,

permanent seizure of a dwelling may so significantly intrude on the

occupant’s possessory interests that even a warrant is not

sufficient. See United States v. James Daniel Good Real Property,

510 U.S. 43 (1993) (due process requires notice and hearing before

seizure of real property for forfeiture because such a seizure gives

government the right to prohibit sale, to evict occupants, to modify

the property, to condition occupancy, and to receive rents). The

seizure for the purposes of preserving evidence that occurred here,

however, lasted less than two hours and involved only a limited

restriction on respondent’s right to use his property.

18

stances, the Court reasoned that “[{iJt seems implausible

that the court found that there was a risk of intentional

or accidental destruction of evidence at a ‘secured’

crime scene.” /d. at 8 n.2.

In Segura, the Court addressed the securing of a

dwelling from the inside. As noted above, in that case,

federal agents entered an apartment, arrested the occu-

pants, and then remained on the premises to preserve

evidence until they obtained a warrant. 468 U.S. at

800-801. The government conceded that the entry was

illegal but argued that the subsequent securing of the

premises was lawful and that evidence obtained in a

search pursuant to the warrant was admissible. /d. at

804. The Court upheld the admissibility of the evi-

dence. See id. at 798-799.

Chief Justice Burger, in a portion of the opinion

joined by Justice O’Connor, concluded that a temporary

warrantless seizure of property is reasonable when

police officers have probable cause to believe the pro-

perty contains evidence of a crime and a seizure will

preserve the status quo and the availability of the

evidence. See 468 U.S. at 805-813. Applying that con-

clusion to the securing of premises, the Chief Justice

approved of a course of action by which police officers

would “secure the premises from the outside by a

‘stakeout’ once the security check revealed that no one

other than those taken into custody w{as] in the

apartment.” /d. at 811. Five Justices joined the

remainder of the opinion, which held that, regardless of

the legality of the initial entry, the evidence was

lawfully seized pursuant to an untainted warrant and

should not be suppressed. /d. at 813-814. The Court

indicated that the agents lawfully could have secured

the premises from the outside. See id. at 814 (“Had

police never entered the apartment, but instead con-

19

ducted a perimeter stakeout to prevent anyone from

entering the apartment and destroying evidence, the

eontraband now challenged would have been discovered

and seized precisely as it was here.”). Indeed, even the

dissenters apparently agreed that the authorities could

have sealed off the premises from the outside without

violating the Fourth Amendment. See id. at 824 n.15

(dissenting opinion) (“I assume impoundment would be

permissible even absent exigent circumstances when it

occurs ‘from the outside’—when the authorities merely

seal off premises pending the issuance of a warrant but

do not enter.”). Thus, all of the Justices in Segura ap-

pear to have endorsed the external securing of a dwell-

ing while the police seek a warrant. See 3 LaFave,

supra, § 6.5(c) at 366.

C. Individualized Suspicion That Evidence Would Be

Destroyed Was Not Necessary To Support The Tem-

porary Seizure

In this case, the police officers had reasonable suspi-

cion that respondent would destroy evidence if he was

allowed to enter his trailer alone.” The Fourth

8 Respondent's awareness of the police presence outside his

residence (J.A. 25-26) was sufficient grounds for a reasonable of-

ficer to suspect that respondent would destroy narcotics that he

had hidden inside. The reasonableness of that suspicion was

strengthened here by several other circumstances: First, respon-

dent knew that police officers were assisting his wife while she

moved out (ibid.), and respondent might therefore have suspected

that she would tell the officers about his drugs in order to get him

into trouble (see J.A. 20). Second, after respondent's wife told the

officers about the contraband, they confronted him with her

accusation and sought his consent to a search. J.A. 16. Finally,

after he refused, respondent overheard his wife’s conversation

with the officers in which she agreed to accompany an officer to

seek a search warrant. J.A. 26.

20

Amendment, however, does not require such indi-

vidualized suspicion before police officers may prevent

entry into a residence while seeking a warrant. The

inherent risk that evidence will be destroyed, altered,

or concealed is sufficient to justify that limited inter-

ference with the owner’s use of the property.”

1. The cases in which the Court has approved tem-

porary seizures based on probable cause have not

involved particularized suspicion that evidence would

be destroyed or damaged. As Chief Justice Burger and

Justice O’Connor noted in Segura, the Court in Sanders

approved the warrantless seizure of a suitcase from a

car even though police officers could have followed the

car until a warrant issued in order to ensure that evi-

dence would not be lost. 468 U.S. at 808; see Sanders,

442 U.S. at 761. See also Acevedo, 500 U.S. at 575 (not-

ing that “[l]Jaw enforcement officers may seize a con-

tainer and hold it until they obtain a search warrant”

without indicating that there is any requirement of

particularized suspicion that the container will be

moved or its contents disturbed). Likewise, in

Chambers v. Maroney, 399 U.S. 42 (1970), the Court

held that, because police officers had probable cause to

search an automobile, they could seize and impound it

9 As we noted at p. 12, supra, that risk is especially prevalent

when the evidence for which the officers are seeking a warrant is

narcotics or another readily destructible material. Nonetheless,

almost all evidence is subject to tampering that may impair its

usefulness to police investigators; for example, the serial numbers

on stolen merchandise can be removed or obscured even if the

merchandise is too large to destroy. The possibility that there may

be a few situations in which there is no danger of tampering with

evidence does not justify a general requirement of individualized

suspicion, which would pose impediments to law enforcement and

could consume significant judicial resources, see pp. 22-23, infra.

a

21

“for whatever period [was] necessary to obtain a

warrant for the search” (id. at 51), even though “there

was no immediate fear that the evidence was in the

process of being destroyed or otherwise lost.” Segura,

468 U.S. at 807 (Burger, C.J., joined by O’Connor, J.).'°

Similarly, individualized suspicion that the evidence

will be destroyed is not required to justify the seizure

of evidence in plain view, see Horton, 496 U.S. at 136-

137, even though the Court has explained that seizure

of such evidence without a warrant is reasonable be-

cause of the “risk of the item’s disappearance.” Place,

462 U.S. at 701." Nor is a particularized suspicion that

a wanted felon will flee necessary to justify a public

arrest without a warrant. See United States v. Watson,

The Court went on to hold that the car could be searched

immediately because “there is little to choose in terms of practical

consequences between an immediate search without a warrant and

the car’s immobilization until a warrant is obtained.” Chambers,

399 U.S. at 52. The Court noted that the same reasoning would not

necessarily support immediate search of a house based on probable

cause alone but explained that “there is a constitutional difference

between houses and cars.” /bid.; see also Chadwick, 433 U.S. at

12-13 (noting lesser expectation of privacy in automobiles).

Our rule is thus consistent with the Court’s statement in

Place that temporary seizures do not require a warrant “if the exi-

gencies of the circumstances demand it or some other recognized

exception to the warrant requirement is present.” 462 U.S. at 701.

Because there is generally a risk that evidence will be destroyed or

tampered with while police officers are seeking a warrant, “the

exigencies of the circumstances demand” (ibid.) that a seizure

based on probable cause be permitted, at least where, as here, the

seizure involves no concomitant invasion of privacy. Thus, the

Court in Place identified the seizure of weapons or contraband in

plain view as an example of when the exigencies of the circum-

stances justify seizure without a warrant even though the Court

has not required individualized suspicion that evidence in plain

view will be destroyed to support its warrantless seizure.

22

-

423 U.S. 411, 423-424 (1976). Rather, “it is recognized

that in any felony case the person to be arrested may

attempt to flee.” Chimel, 395 U.S. at 780 (White, J., dis-

senting, joined by Black, J.) (quoting S. Rep. No. 2464,

81st Cong., 2d Sess. 2 (1950)).

Most to the point, the Court has signaled its approval

of the external securing of a dwelling in cases in which

there was no particularized reason to believe that evi-

dence would be damaged or destroyed. For example, in

Mincey, in which the Court approved stationing the

guard at the entrance to the apartment, “[t]here was no

indication that evidence would be lost, destroyed, or

removed during the time required to obtain a search

warrant.” 437 U.S. at 394. See also Flippo, 120 S. Ct.

at 8 n.2; Jeffers, 342 U.S. at 52. And, in Segura, “(alll

members of the Court appear[ed] to agree that the

mere seizure of the premises and contents (that is, a

mere interference with possessory interests) is per-

missible on probable cause even absent exigent circum-

stances.” 3 LaFave, supra, § 6.5(c) at 366 (emphasis

added).

2. Law enforcement would be impeded if police

officers were required to develop particularized suspi-

cion that each person whose entry they sought to

prevent was likely to tamper with evidence. If there

were such a requirement, an officer could not prevent

someone’s entry into a residence even if the officer had

probable cause to believe that the residence contained

evidence of a crime, unless he also had specific reason to

suspect that the particular person was implicated in the

illegal conduct.

Yet entry by an individual whom the evidence does

not incriminate may pose a significant (if unknown) risk

that evidence will be removed or destroyed. Although

such an individual may not have a direct interest in

23

tampering with the evidence, he may nonetheless be

willing to destroy evidence to assist others whom the

evidence does incriminate, or even to avoid suspicion

being cast on him. His willingness to do so will depend

on a wide array of facts that will be difficult for police

officers to ascertain, including whether he knows that

the evidence exists, whether he knows that the officers

are planning to seize it, whether he knows that the evi-

dence is incriminating, whether he knows whom it

incriminates, his relationship to the individuals whom it

incriminates, and his willingness to obstruct justice in

order to aid those individuals.

In this case, for example, respondent’s mother

arrived at the trailer after a phone conversation with

respondent. J.A. 17-18. The police officers could not

know whether she was involved in, or even aware of,

her son’s possession of marijuana. Further, they could

not be sure whether respondent had informed her of

the events unfolding at the trailer. And the officers

could not know whether she was willing to destroy the

evidence to protect her son.

A requirement of individualized suspicion not only

would impede law enforcement but also would consume

judicial resources with litigation over the reasonable-

ness of police judgments in particular cases. The Court

has relied on the prospect of such litigation in declining

to require an inquiry into individualized suspicion in

other Fourth Amendment contexts. See, e.g., Wyoming

v. Houghton, 526 U.S. 295, 305 (1999); Watson, 423 U.S.

at 423-424. That consideration also supports rejection

of a case-by-case inquiry into the danger of evidence

tampering here.

24

D. This Case Involves Neither A Constructive Eviction

Nor A Search Without A Warrant Or Consent

The Appellate Court of Illinois held that the police

officers violated the Fourth Amendment in this case for

two reasons: First, the court concluded that the

officers “contructive[ly] evict[ed] [respondent] from his

residence” because he was on his front porch when they

told him he could not enter his trailer alone while they

sought a warrant. Pet. App. 12. Second, the court

concluded that the officers conducted an unjustified,

warrantless search when an officer accompanied re-

spondent into the trailer while he made telephone calls

and obtained cigarettes. /d. at 12-13. Both conclusions

are incorrect.

1. The appellate court found no evidence that the

officers ordered respondent to leave his trailer. Pet.

App. 11-12. Nonetheless, because respondent was on

the front porch and thus “still on his premises” when

the officers prevented his reentry into the trailer, the

court determined that the police conduct amounted to a

“constructive eviction” of respondent. Jd. at 12.

That determination was mistaken. “What a person

knowingly exposes to the public, even in his own house

or office, is not a subject of Fourth Amendment protec-

tion.” Katz v. United States, 389 U.S. 347, 351 (1967).

Although, as a matter of property law, respondent’s

front porch, like the threshold of his trailer and the

yard surrounding it, is private, “it is nonetheless clear

that under the cases interpreting the Fourth Amend-

ment [respondent] was in a ‘public’ place.” See San-

tana, 427 U.S. at 42. See also 1 LaFave, supra, § 2.3(f)

at 506-507 (“places visitors could be expected to go (e.g.,

walkways, driveways, porches)” are not curtilage

protected by the Fourth Amendment from intrusion)

25

(footnotes omitted). Just as the officers in Santana did

not invade any privacy interest when they sought to

arrest the defendant as she stood on her threshold, the

officers here did not invade respondent’s privacy inter-

ests or “constructive(ly] evict{]” him “from his resi-

dence” (Pet. App. 12) when they prevented his entry

into the trailer from his front porch.

2. The appellate court also erred in concluding that

the police officers “secured the dwelling from the

inside” and “probably” conducted “an unreasonable

search” (Pet. App. 12-13) when an officer accompanied

respondent into the trailer while he made telephone

calls and obtained cigarettes. The Fourth Amend-

ment’s prohibition against warrantless searches does

not apply when voluntary consent has been obtained.

See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). In

this case, respondent consented to the officer’s entry.

As we have explained, the police officers could

constitutionally have denied respondent all access to

the trailer, in order to preserve evidence while they

obtained a warrant. See pp. 11-19, supra. Therefore,

the officers could constitutionally condition respon-

dent’s access to the trailer on his agreement that an

officer could accompany him, because the officer’s pre-

sence was a reasonable means to neutralize the risk

that respondent would destroy evidence if he entered.

Cf. Dolan v. City of Tigard, 512 U.S. 374, 385, 391

(1994) (the government may condition a benefit on the

relinquishment of a constitutional right if the waiver of

the right is reasonably related to the benefit).

The police officers advised respondent that he could

enter the trailer only if he was accompanied by an

officer. J.A. 22, 27, 30. By choosing to enter under that

reasonable condition, respondent consented to the

26

officer’s entry.” Cf. United States v. Rosi, 27 F.3d 409,

412 (9th Cir. 1994) (by asking the FBI agents who had

arrested him for permission to change his clothes and

providing them with a key to his condominium, the

defendant consented to their accompanying him inside

the residence).

CONCLUSION

The judgment of the Appellate Court of Illinois

should be reversed.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

JAMES K. ROBINSON

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

MATTHEW D. ROBERTS

Assistant to the Solicitor

General

DEBORAH WATSON

Attorney

JULY 2000

2 When the officer entered the trailer on those occasions, he

“just steppled] right inside the door and just stood by the door-

way.” J.A. 18. He did not “conduct any search while he was in

there” (J.A. 30) and therefore did not discover any of the evidence

that the police officers found when they later searched the trailer

pursuant to the warrant. Thus, even if respondent had not con-

sented to the entry, the Illinois courts should not have excluded

the evidence based on that entry, because it was not “the product

of illegal governmental activity.” Harris, 495 U.S. at 19 (quoting

Crews, 445 U.S. at 471).