Amicus Curiae Brief — Illinois v. McArthur

2 Supreme Court, U3.

: \\ ) F I L E D

Bi Avs 8 2008

No. 99-1132

“CLERK

IN THE

Supreme Court of the United States

ee es

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

Vv.

CHARLES McARTHUR,

Respondent.

ON WRIT OF CERTIORARI

TO THE APPELLATE COURT OF ILLINOIS

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

LisA B. KEMLER LAWRENCE S. SPIEGEL

Counsel of Record JONATHAN B. LEIKEN

NATIONAL ASSOCIATION OF 4 Times Square

CRIMINAL DEFENSE New York, New York 10036

LAWYERS (212) 735-4155

108 North Alfred Street

Alexandra, VA 22314

(703) 684-8000

Counsel for Amicus Curiae

National Association of Criminal Defense Lawyers

"BEST AVAILABLE COPY Suu

TABLE OF CONTENTS

Page

BA Ge CRF URNEEEED 6 oc cccicscdseciedeteceat ll

CCS GI SEED 8.60 ocntcccsecessdadnausans l

STATEMENT OF THE CASE ......ccccccccccccsces l

SUMMARY OF ARGUMENT ............cccccccees 3

SEE 09 6-60 0b00h06e6udsseshaensnvetanes ee 5

I. THE IMPOUNDMENT ALTERNATIVE

CANNOT BE WITHOUT LIMITS ............. 5

II. THE POLICE CONDUCT IN THIS CASE

REPRESENTED AN INTRUSION INTO

MR. MCARTHUR'S PRIVACY

PD 5 0699450505 sa ee enseenaeeaats 7

III. THIS INTRUSION WAS NOT JUSTIFIED

BY ANY EXIGENT CIRCUMSTANCES ...... 10

IV. PERMITTING THE POLICE CONDUCT IN THIS

CASE WOULD BE CONTRARY TO PUBLIC

POLICY, AS IT WOULD CONDONE SERIOUS

INVASIONS OF PRIVACY AT MINIMAL

BENEFIT TO LAW ENFORCEMENT ........ 14

CPE nb vcecvcsuceseusswedstcceucuaeans 18

TABLE OF AUTHORITIES

CASES PAGE(S)

Arkansas v. Sanders, 442 U.S. 753 (1979) ........... 12

Chambers v. Maroney, 399 U.S. 42 (1970) ......... 9,10

Chimel v. California, 395 U.S. 752 (1969) ........ 7,8,9

Gouled v. United States, 255 U.S. 298 (1921)... ....... 6

Maryland v. Wilson, 519 U.S. 385 (1978) ... 2.2... 6... 7

Mincey v. Arizona, 437 U.S. 385 (1978) ........ 10, 11, 12

Payton v. New York, 445 U.S. 573 (1980)... 2.2... 6... 15

People v. Clements, 339 N.E.2d 170 (N.Y. 1975) ....... 17

People v. McArthur, 713 N.E.2d 93 (Ill.App.Ct.)

appeal denied, 720 N.E.2d 1101

(Ill. 1999), cert. granted, 20 S. Ct. 1830 (2000) 2, 3, 6

People v. Smith, 496 P.2d 1261 (Cal. 1972) ........... 13

Segura v. United States, 468 U.S. 796 (1984) .. 4, 5, 6, 8, 9,

10, 11, 12, 13

Sheik-Abdi v. McClellan, 37 F.3d 1240 (7th Cir.

ee fees von see bes dekbeeeesoe< 15

Se On GU, ES GUD B CEDUD oo cc cccccccccseccs . 10

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) ... 17

United States v. Jeffers, 342 U.S. 48 (1951) ........... 12

United States v. Karo, 468 U.S. 705 (1984) ......... 8,12

United States v. Place, 462 U.S. 696 (1983) ........ 10, 11

United States v. Thompson, 700 F.2d 944 (Sth Cir.

i 2) pee atsteh edu deeaek seek e sabe ae 13

Vale v. Louisiana, 399 U.S. 30 (1970)... ....... 7, 8,9, 13

Welsh v. Wisconsin, 466 U.S. 740 (1984) ............. 14

Wong Sun v. United States, 371 U.S. 471 (1963) ........ 6

STATUTES PAGE(S)

720 Ill. Comp. Stat. Ann. 600/3.5(a), 550/4(a)

(West 1993 & Supp. 2000) .... 1... cece eee. 2

OTHER AUTHORITIES PAGE(S)

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

te oS eh ais 8,11, 15,17

INTEREST OF THE AMICUS'

The National Association of Criminal Defense Lawyers

("NACDL") is a non-profit corporation with more than 10,000

members nationwide and 28,000 affiliate members in 50 states,

professors. The American Bar Association recognizes NACDL as

an affiliate organization and awards it full representation in its House

of Delegates. NACDL was founded in 1958 to promote study and

research in the field of criminal law, to disseminate and advance

knowledge of the law in the area of criminal practice, and to

encourage the integrity, independence, and expertise of defense

lawyers in criminal cases. NACDL seeks to defend individual

liberties guaranteed by the Bill of Rights and has a keen interest in

ensuring that legal proceedings are handled in a proper and fair

manner. Among NACDL's objectives is the promotion of the

proper administration of justice.

STATEMENT OF THE CASE

On April 2, 1997, two Sullivan, Ill'ois police officers

accompanied Tera McArthur to retrieve beloi.gings from the trailer

she shared with her estranged husband, Respondent Charles

McArthur. Pet. App. 2. Officers Love and Skidis waited on the

porch while Mrs. McArthur removed her property. Pet. App. 2.

When Mrs. McArthur emerged from the trailer, she informed

Officer Love that the Respondent had "pot" in the trailer under the

couch. Officer Love knocked on the door and, when Mr.

The parties have consented to the filing of this bref. Counsel

for a party did not author this brief in whole or in part. No per-

son or entity, other than the Amicus Curiae, its members, or its

counsel made a monetary contnbution to the preparation and

submission of this bref.

ee

McArthur answered, Officer Love told the Respondent that his wife

had alleged the presence of drugs in the trailer. The defendant

denied the allegation and also denied the officer's request to search

the residence without a warrant. By the end of this exchange, Mr.

McArthur was standing on the porch. However, Officer Love

cannot recall whether Mr. McArthur emerged voluntarily or

whether Officer Love ordered Mr. McArthur out of his home. See

People v. McArthur, 713 N.E.2d 93, 94 (Ill. App. Ct.) appeal

denied, 720 N.E.2d 1101 (Ill. 1999), cert. granted, 20 S. Ct.

1830 (2000).

Mr. McArthur has testified that he overheard Officer Love

and Mrs. McArthur talking about getting a search warrant and

about Mrs. McArthur testifying. Eventually, Officer Skidis accom-

panied Mrs. McArthur to testify before a magistrate, and Officer

Love approached Mr. McArthur to tell him "what was happening.”

See id. at 94. From that point on, Officer Love did not allow Mr.

McArthur into his home except to retrieve cigarettes and make

telephone calls. When Mr. McArthur did enter his home, Officer

Love accompanied him and observed him at all times. This

observation lasted between one and two hours. At no time was

Mr. McArthur informed whether or not he was in custody. See id.

at 94-95.

When the police returned with a warrant, they entered the

trailer and Mr. McArthur voluntarily showed the officers the

location of the drugs. Mr. McArthur was arrested and charged

with two counts of unlawful possession of drug paraphernalia and

one count of unlawful possession of a substance containing less than

2.5 grams of cannabis. See 720 Ill. Comp. Stat. Ann. 600/3.5(a),

550/4 (a) (West 1993 & Supp. 2000). Mr. McArthur has testified

that he would have destroyed the marijuana that was in his home

had he ever been allowed to reenter his residence alone. See

McArthur, 713 N.E.2d at 94.

At trial, Mr. McArthur moved to suppress the evidence

found in his residence pursuant to the warranted search, arguing that

his Fourth Amendment nights were violated because of the police

seizure and search of his residence during the two hours it took to

secure the search warrant. The trial court granted the motion to

suppress. See id. Petitioners appealed and the Fourth District

appellate court affirmed. See id. The Fourth District appellate court

held that police execute an unreasonable search and seizure when

they limit "the freedom of movement of persons within, into or out

of” secured premises, unless those persons are already in custody,

are subject to arrest when they appear, or have consented to

remain outside. /d. at 96 (citation omitted).

SUMMARY OF ARGUMENT

When police have probable cause to believe a dwelling

contains incriminating evidence, they face the possibility that such

evidence will be destroyed in the time it takes to obtain a search

warrant. Recently, however, impoundment of a defendant's

premises has emerged as a potentially less intrusive method of

preserving evidence than an immediate and warrantless search.

While this Court has approved certain types of impoundment, it has

not yet authorized police to impound private dwellings that remain

occupied, and to control the occupants’ movement into and out of

their dwelling.

The Fourth Amendment demands that this Court exercise

extra caution in delineating the parameters of this "iznpoundment

alternative.” This requires an examination of whether impoundment

intrudes upon the privacy interests of the defendant, and if so,

whether the impoundment was conducted under exigent circum-

stances. The NACDL submits that impoundment of occupied

private premises constitutes an invasion of privacy and, as such, is

only constitutionally reasonable when circumstances are

—— Te

exigent, and where the alternative methods of preventing the

destruction of evidence are more intrusive than impoundment

itself.

In this case, the conduct of the police represented a

substantial intrusion into Mr. McArthur’s privacy interests. Unlike

Segura v. United States, 468 U.S. 796 (1984) in which this Court

approved a warrantless internal securing of an unoccupied premises

while the residents were in custody, the hallmark of this case is that

Mr. McArthur was at home while the alleged search and seizure

took place. And yet, at the heart of the Fourth Amendment is the

beliefthat privacy rests, especially when the defendant is at

home, deserve the .irongest protection from state intrusion.

Whether the impoundment in this case is deemed a "search" or a

"seizure," it deserves such protection.

Under the Fourth Amendment, impoundment that interferes

with a defendant's privacy interests has rarely been permitted absent

exigent circumstances. In this case, no greater than a theoretical

risk of evidence destruction existed until the police unnecessarily

asked the defendant if they could search his trailer. Moreover,

appellate courts have held that police cannot, through their own

conduct, create exigent circumstances justifying a warrantless entry

where none otherwise existed.

Permitting the police conduct in this case would condone

substantial invasions of privacy at minimal benefit to law enforce-

ment. In this case, Officers Love and Skidis had at least three

alternatives to impounding Mr. McArthur’s premises and possibly

seizing his person. Before the police created the exigent circum-

stances that supposedly necessitated their impoundment of Mr.

McArthur's premises, they could easily have obtained a search

warrant on the strength of Mrs. McArthur’s testimony before a

magistrate. Alternatively, the police could have arrested Mr.

McArthur and apprised him of his Miranda rights either before or

after they created exigent circumstances. After the police created

the exigent circumstances justifying impoundment, they might have

performed an immediate but warrantless search of Mr. McArthur’s

trailer.

Investigative procedures employed by the police should be

the least intrusive means reasonably available to verify or dispel the

officer's suspicion. By choosing impoundment in the face of less

intrusive alternatives, the police demonstrated their indifference to

Mr. McArthur’s privacy interests and thereby struck an unreason-

able balance between the interests of law enforcement and the

constitutional nghts of an alleged criminal.

ARGUMENT

I. THE IMPOUNDMENT ALTERNAT'VE CANNOT

BE WITHOUT LIMITS

When police have probable cause to believe a dwelling

contains incriminating evidence, they face the possibility that such

evidence will be destroyed in the time it takes to obtain a search

warrant. Courts have approved several methods of circumventing

this problem, such as arresting the occupants of the residence and

searching incident to arrest, obtaining the occupants’ consent to

search, and in some cases conducting a search without a warrant.

Most recently, impoundment of a defendant's premises has emerged

as a potentially less intrusive alternative to warrantless search and

arrest.

In defining the contours of the "impoundment alternative,"

this Court has held that police may impound a residence from the

outside even absent exigent circumstances, and may secure a

residence from the inside when the person otherwise claiming a

privacy interest is in custody. See Segura, 468 U.S. 796 (1984).

However, this Court has not yet authorized police to impound

residences that remain occupied, and to control the occupants’

movement into and out of the residence. Such conduct was not

addressed in Segura, and was deemed constitutionally unreason-

able by the Illinois Appellate Court in this case. See McArthur,

713 N.E.2d at 98.

The impoundment of occupied premises does not fit neatly

into the traditional categories of Fourth Amendment case law.

However, its use does not dictate a diminution in the deference to

privacy and possessory interests that the Fourth Amendment

protects. Rather, this Court should exercise extra caution in

delineating the parameters of permissible police conduct in cases of

impoundment. The Fourth Amendment demands that the right to

privacy be guarded with the greatest caution "so as to prevent

stealthy encroachment upon or 'gradual depreciation’ of the rights

secured by them, by imperceptible practice of courts or by well-

intentioned, but mistakenly overzealous, executive cfficers."

Gouled v. United States, 255 U.S. 298, 304 (1921).

Warrantless impoundment of occupied premises represents

areal invasion into the privacy interests of the occupants, often at

minimal benefit to law enforcement. Whether deemed a "search" or

a "seizure," such conduct is only constitutionally reasonable when

circumstances are exigent, and where the alternative methods

of preventing the destruction of evidence are more intrusive

than impoundment itself. The NACDL believes that the police

conduct in this case struck the wrong balance between the privacy

of the defendant and the interest of law enforcement.’

The link between the unreasonable police action and the discov-

ery of the evidence is clear in this case. Mr. McArthur has

testified that were it not for the police's constant surveillance, he

would have destroyed the evidence in his trailer. Clearly, this

qualifies the evidence as "fruit of the poisonous tree." Wong

Sun v. United States, 371 U.S. 471, 487-88 (1963).

6

Ul. THE POLICE CONDUCT IN THIS CASE REPRE-

SENTED AN INTRUSION INTC MR.

MCARTHUR'S PRIVACY INTERESTS

1. Privacy interests, especially when the defen-

dant is at home, deserve the strongest protec-

tion of the Fourth Amendment.

The reasonableness of a search or seizure is determined by

balancing the government's law enforcement interests against any

intrusion on the defendant's Fourth Amendment nghts. Maryland

v. Wilson, 519 U.S. 408, 411 (1997). Thus, while this Court has

reco ized a strong law enforcement interest in protecting incrimi-

nating evidence from destruction, this interest has been balanced

against the possessory and privacy interests of individual defen-

dants. The police conduct in this case implicated Mr. McArthur’s

privacy interests, which deserve the strongest protection of the

Fourth Amendment.

Cases decided by this Court have confirmed the necessity

of protecting privacy interests in the context of drug investigations

— particularly when a private dwelling is involved. In Chimel v.

California, 395 U.S. 752, 763 (1969), this Court limited the area

that police may search incident to a lawful arrest to "the area from

within which he might gain possession of a weapon or destructible

evidence.” The next term, in Vale v. Louisiana, 399 U.S. 30, 33-

.34 (1970) this Court held that a lawful arrest on the street outside

a defendant's dwelling does not justify the warrantless search of the

defendant's dwelling as incident to lawful arrest or under exigent

circumstances.

At the heart of Chimel and Vale is the belief that privacy

interests, especially when the defendant is at home, deserve the

strongest protection of the Fourth Amendment. Though the home

has long been recognized as the most impenetrable bastion of

privacy, where "the individual normally expects privacy free of

governmental intrusion." United States v. Karo, 468 U.S. 705,

714 (1984), Chimel and Vale make it even more clear that, even

in cases where there is a substantial state interest in procuring

evidence, the home must remain free from unreasonable intrusion.

2. By keeping Mr. McArthur under watch in his

home while obtaining a search warrant, the

police intruded upon his privacy interests.

In Segura, 468 U.S. at 813, this Court took note of the

difference in conduct leading to invasions of privacy, as opposed to

possessory, interests. Although Segura also dealt with a case of

impoundment, the critical difference between Segura and the case

at hand is the presence of the defendant in the home while the

impoundment took place. For this Court, in Segura, the defen-

dants' absence during an internal impoundment of their residence

vitiated any intrusion into their privacy interests. In this case,

however, Mr. McArthur's private actions in his home were

observed, and his personal belongings viewed without permission,

for extended periods of time. It is intuitive that such intrusive police

presence constitutes a gross invasion of Mr. McArthur's privacy

interests. .

Indeed, Professor LaFave has stated that the practice of

keeping a defendant under watch while police obtain a warrant is

even "more intrusive" than mere impoundment of a defendant's

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

367 (3d ed. 1996). Though petitioners argue that the police

action in this case constituted only an infringement of

possessory interests, there was in fact a palpable violation of

Mr. McArthur’s privacy. The nature of this violation is

captured by the dissenters in Segura, who observed that

[e]ven assuming the most innocent of motives,

the agents’ occupation of petitioners’ living

quarters inevitably involved scrutiny of a

variety of personal effects throughout the

apartment. Petitioners’ privacy interests were

unreasonably infringed . . . .

468 U.S. at 821 (Stevens, J., dissenting) (footnote omitted).

In this case, Mr. McArthur's home was under internal obser-

vation on repeated occasions over a two hour period. His

personal effects were open to scrutiny, and his behavior in his

own home was open to unrestricted viewing by Officer Love,

despite the fact that Mr. McArthur had not been informed that

he was under arrest, and had already stated that Officer Love

did not have permission to enter his home.

> The police conduct in this case is thus unrea-

sonable whether it is analyzed as a search or

as a seizure.

Because Chimel and Vale reemphasize the status of the

home as a place of special deference to privacy interests, subse-

quent cases have sought to draw a distinction between the signifi-

cance of privacy versus possessory interests. As cases like Segura

have shown, there is indeed a difference in the nature of the conduct

giving rise to possessory and privacy violations. However, the

Court's decision in Chambers v. Maroney, 399 U.S. 42, 51

(1970) suggests that there is no difference between the severity of

an unreasonable "seizure" and an unreasonable "search."

In Chambers, this Court held that, given probable cause,

there was no constitutional difference between seizing a car and

waiting on a warrant and doing an immediate warrantless search of

the car. The court reasoned that since there was a right to search

the car on the highway, moving it to headquarters would have made

9

little practical difference. In this way, the Chambers Court

envisioned no difference in the Fourth Amendment implications of

a search and those ofa seizure. Ifa seizure had been less volatile

than a search, the Chambers Court would have required that the

police seize the car and wait for a warrant rather than doing a

warrantless search. By analogy, the constitutional analysis in the

instant case hinges on the fact that Mr. McArthur’s privacy interests

were abridged by an enforced dispossession of his home, regard-

less of whether this dispossession is analyzed as a search or as a

seizure.

Ill. | THISINTRUSION WAS NOT JUSTIFIED BY ANY

EXIGENT CIRCUMSTANCES

1. Under the Fourth Amendment, impoundment

that interferes with a defendant's privacy

interests has rarely been permitted absent

exigent circumstances.

In Terry v. Ohio, 392 U.S. 1, 26 (1968), this Court

required that warrantless police action be "strictly circumscribed by

the exigencies which justify its initiation." While it is true that this

Court has occasionally approved of temporary seizures based

on probable cause alone, these cases have involved actions that

did not implicate privacy interests. For example, the case of

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

warrantless seizure based on probable cause where there was

no invasion of privacy. Similarly, cases like Segura and

Mincey v. Arizona, 437 U.S. 385 (1978) have permitted

10

warrantless seizure of property based on probable cause only

where the occupants were not at home.’

Indeed, temporary seizure of property is permissible

absent exigent circumstances (as per Mincey and Place) where

the owner's use of the property is frustrated. However, as this

Court noted in Segura, there is a substantive difference

between interference with privacy and with possessory

interests. In that case, this Court suggested that in the event of an

invasion of privacy interests, warrantless police action based

solely on probable cause cannot be justified absent exigent

circumstances. Segura, 468 U.S. at 811-12. This dictum led to

the conclusion that "absent exigent circumstances," the police's initial

entry into the defendants’ premises "may have constituted an illegal

search, or interference with petitioners’ privacy interests." Jd. As

discussed above, the police action in this case was a clear violation

of Mr. McArthur’s privacy interests, since his person and his effects

were open to view by Officer Love throughout the duration of the

impoundment.

Moreover, in Segura v. United States, 468 U.S. 796, 811 (1984),

the Court did not address, much less authorize, an invasion of

privacy interests. The Court was focused-on the seizure aspect

of the police conduct, acknowledging that "absent exigent

circumstances,” any entry into the premises "may have consti-

tuted an illegal search.” See 3 Wayne R. LaFave, Search and

Seizure §6.5(c), at 366 (3d ed. 1996).

11

2. Exigent circumstances did not exist in this

case

The invasion of privacy in this case cannot be justified by

any genuinely exigent circumstances. First, the theoretical risk that

evidence will be destroyed is not enough to support warrantless

impoundment of a residence where the occupant is at home — much

less warrantless entry of the residence without informed consent. In

opposition to this view, petitioners’ supporter cites numerous cases

for the proposition that warrantless seizure based solely on proba-

ble cause is permissible under the Fourth Amendment. None of

these cases, however, involves a situation in which the owner or

occupant of the dwelling was at home and under observation. See,

e.g., Mincey, 437 U.S. 385.

Furthermore, cases such as United States v. Jeffers, 342

U.S. 48 (1951), Arkansas v. Sanders, 442 U.S. 753 (1979) and

Chambers do not involve private residences, where the expectation

of privacy is at its highest. In this case, by contrast, Mr. McArthur

was in his home and had every expectation of privacy. See Karo,

468 U.S. at 714 (holding that "private residences are places in

which the individual normally expects privacy free of governmental

intrusion"). As discussed above, this Court has not articulated an

instance in which the privacy interests of a defendant may be

violated based solely on probable cause and absent exigent

circumstances.

With respect to the existence of exigent circumstances in

this case, no greater than a theoretical risk of evidence destruction

existed until the police unnecessarily asked Mr. McArthur if they

could search his trailer.* Before this request, the only way Mr.

’ It is worth noting that the Segura court acknowledged that the

theoretical risk of evidence destruction was not enough to create

(continued...)

12

McArthur would have thought to destroy the evidence would be if

he had suspected his wife might tell the officers about the drugs

under his couch. This is a strained theory, one that does more to

justify the officers’ conduct after the fact than to illustrate any

reasonable suspicion they might have had at the time. Crucially, it

fails to explain why Mr. McArthur made no attempt, before the

police asked to search his trailer, to destroy the 2.3 grams of

marijuana or the drug paraphernalia — despite the fact that he was

aware of a police presence for quite some time.

Second, police cannot, through their own conduct, create

exigent circumstances justifying a warrantless entry where none

otherwise existed. See United States v. Thompson, 700 F.2d 944

(Sth Cir. 1983). In this case, the police testified that they had

probable cause to arrest Mr. McArthur and/or obtain a search

warrant as soon as Mrs. McArthur advised them that her husband

had marijuana inside his trailer. Jt. App. 24. Instead of arresting

Mr. McArthur or obtaining a warrant immediately, the police chose

to knock on Mr. McArthur’s door, tell him his wife had seen

. (...continued)

a causal link between police misconduct and preservation of

evidence. Here, had the police not prompted the destruction of

the evidence through their communications with Mr. McArthur,

the possibility of the destruction of the manjuana would have

been speculative at best. If the “speculative” possibility of

destruction of evidence was not enough to taint the evidence in

Segura, it is difficult to see how the "speculative" possibility of

destruction of evidence in this case could possibly give nse to

the even higher standard needed for exigent circumstances.

Segura, 468 U.S. at 815-16. See also Vale v. Louisiana, 399 U.S.

30, 35 (1970) (holding that evidence must be "in the process of

destruction” in order to justify warrantless entry and search of a

dwelling); People v. Smith, 496 P.2d 1261, 1263 (Cal. 1972) (hold-

ing that "in the absence of a showing of true necessity—that is,

an imminent and substantial threat to life, health, or property—the

constitutionally guaranteed nght to privacy must prevail").

13

marijuana in his trailer, and ask if they could search the premises.°

Jt. App. 16. When he refused the request to search, the police

asked Mrs. McArthur, within earshot of Mr. McArthur, whether

she would accompany one of the officers to a magistrate to obtain

a search warrant. Jt. App. 16-17, 26. Had the police not taken

this course of action, the risk of evidence destruction would have

IV. PERMITTING THE POLICE CONDUCT IN THIS

CASE WOULD BE CONTRARY TO PUBLIC

POLICY, AS IT WOULD CONDONE SERIOUS

INVASIONS OF PRIVACY AT MINIMAL BENE-

FIT TO LAW ENFORCEMENT

1. The police had at least three alternatives to

impoundment

What is especially troubling about the police's course of

action in this case is how easily it could have been avoided. Before

the police created the exigent circumstances that supposedly

necessitated their impoundment of Mr. McArthur’s premises, they

could easily have obtained a search warrant on the strength of Mrs.

McArthur’s testimony before a magistrate. To the extent that the

purpose of the warrant requirement is to prevent "unnecessary

intrusions into private dwellings... [by] agents of the government

who seek to enter the home for the purposes of search or arrest,"

this would have been a much more reasonable course of action.

Welsh v. Wisconsin, 466 U.S. 740, 748 (1984). It is ironic that .

the unhurried process of obtaining a search warrant functioned to

The point of this argument is not to discourage consent

searches per se, but merely to illustrate the lack of exigent cir-

cumstances in this case.

14

ee a ee ET =

eee

compromise Mr. McArthur’s privacy interests rather than to protect

them.

As an alternative to obtaining a warrant without impounding

the premises, the police could have arrested Mr. McArthur and

apprised him of his Miranda rights.° When asked at trial why he did

not arrest Mr. McArthur, Officer Love admitted he had probable

cause to arrest but gave the following response:

Because, at that point, sir, 1, through my training,

we had probable cause, I felt, due to Mrs.

McArthur’s statement, that I felt it was best to wait

until we got the search warrant to find the evidence.

Jt. App. 24. Even when counsel repeated the question, Officer

Love replied:

Again, my training and experience, | felt that if we

could get the search warrant that it would be

proper to wait until we found it.

Jt. App. 24. These evasive replies suggest that the course of action

taken by Officers Love and Skidis lacked a reasonable justification.

Rather than arrest Mr. McArthur on probable cause, the officers

: The fact that the police did not have an arrest warrant does not

refute this point. First, this requirement only applies to entry of

private premises for the purpose of making an arrest, which may

not have been necessary in this case given that Mr. McArthur

exited his trailer after the police arrived. See Payton v. New

York, 445 U.S. 573, (1980). See also Sheik-Abdi v. McClellan, 37

F.3d 1240 (7th Cir. 1994). Second, an exception to the arrest

warrant requirement is tnggered where the police have another

lawful basis to obtain entry onto the premises, such as, in this

case, to keep the peace while Mrs. McArthur collected her

belongings. See LaFave, supra, §6.1(c).

15

chose to knock on Mr. McArthur’s door, tell him his wife had seen

maniyuana in his trailer, and request a search so that they could have

the luxury of solving their case before effecting an arrest.’ Jt. App.

16. No doubt anticipating that this request would be denied, thus

leading to the apparent need for impoundment of the premises,

Officers Love and Skidis acted recklessly with respect to their

constitutional duty to respect Mr. McArthur’s privacy.

Even after the police created the exigent circumstances

supposedly necessitating impoundment, they still had an opportunity

to arrest Mr. McArthur instead of impounding his premises. Again,

however, the officers chose to defer arrest so that they could solve

their case. While one officer barred Mr. McArthur from entering

his home unaccompanied and kept him under watch for over an

hour, the other officer went to a magistrate to obtain a search

warrant. Jt. App. 17-18. This invasion of Mr. MacArthur's

privacy — done ultimately to confirm the existence of criminal activity

which the police already had probable cause to suspect — showed

an unnecessary disregard for Mr. McArthur’s Fourth Amendment

nghts. By placing their investigative whims above Mr. McArthur's

privacy interests, the police behaved in a constitutionally unreason-

able manner.

Even were arrest not feasible — suppose, for example, the

only occupant of the trailer at the time was a third party such as Mr.

McArthur’s mother — the police might have considered an immedi-

ate but warrantless search of Mr. McArthur’s trailer as an alterna-

tive to impoundment. At least one court has rejected impoundment

in favor of a warrantless search, where the former "would have

Again, the point of this argument is not to discourage consent

searches per se. Rather, it is to illustrate that any exigent circum-

stances in this case were of the police's own making, and that the

police had several alternatives to creating the exigent circum-

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(eee eee —

entailed a much greater intrusion in both space and time” than the

latter. People v. Clements, 339 N.E.2d 170, 173 (N.Y. 1975).

In this case, as in Clements, the seizure of evidence did not require

a lot of time and was focused on a “predetermined target." The fact

that the police immediately resorted to impoundment only illustrates

further their indifference toward Mr. McArthur's privacy. As

Professor LaFave writes, "{w]here ... only a very limited search in

a specific location is needed, it may well be that a warrantless

search of that place is so clearly a lesser intrusion that it may be

undertaken in lieu of impoundment of the premises until a warrant

can be obtained.” LaFave, supra, §6.5(c), at 373.

2. Permitting the most intrusive alternative would

be contrary to public policy

Investigative procedures employed by the police should be

the least intrusive means reasonably available to verify or dispel the

officer’s suspicion. See United States v. Brignoni-Ponce, 422

U.S. 873 (1975). In this case, Officers Love and Skidis had at

least three alternatives to impounding Mr. McArthur’s premises and

seizing his person: (1) obtaining a search warrant before, and

instead of, creating any exigent circumstances; (2) arresting Mr.

McArthur and apprising him of his Miranda nights; and (3) conduct-

ing an immediate and warrantless search of the premises. All three

of these alternatives would have prevented the destruction of

of law enforcement officials.

More to the point, these three alternatives would have

spared Mr. McArthur the inconvenience and humiliation of being

kept under watch while the police made their case against him. The

police demonstrated their indifference to these interests by choosing

impoundment in the face of less intrusive alternatives. Given the

relatively minor nature of the offenses involved, this choice struck an

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unreasonable balance between the interests of law enforcement and

the constitutional nghts of Mr. McArthur.

CONCLUSION

For the foregoing reasons, Amicus Curiae respectfully

urges the court to uphold the judgment of the Appellate Court of

Illinois.

Respectfully submitted,

LISA B. KEMLER

Counsel of Record

National Association of

Criminal Defense Lawyers

108 North Alfred Street

Alexandria, VA 22314

(703) 684-8000

LAWRENCE S. SPIEGEL

JONATHAN B. LEIKEN

4 Times Square

New York, New York 10036-6522

(212) 735-3000

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