COURT EXAMINES CASE WHERE MAN WAS KEPT FROM HIS HOME

WASHINGTON - The Constitution treats an individual's home as a castle, so is
it unconstitutional for police to keep that person out? The Supreme Court
faced that new twist on an old issue yesterday.

After years of sorting out when the Constitution allows police to go into a
private home to look for evidence of crime, the court for the first time
turned to the constitutionality of police control of occupants who want to
go into their homes when officers are suspicious of what they would do once
back inside.

In a lively one-hour hearing on a case from the small town of Sullivan,
Ill., southeast of Decatur, the justices weighed the pros and cons of
allowing the police to control access to a dwelling while they seek a search
warrant, believing that illegal drugs are inside and could be destroyed if
anyone enters.

Yesterday, it took the justices only a few minutes to discover that the new
issue before them was far from easy.

Although several justices tried to suggest common-sense ways of deciding
when a police officer would be justified in concluding that a homeowner
would destroy evidence if allowed to go into a house, they had difficulty
translating those thoughts into constitutional reasoning.

Somewhat plaintively, Justice Antonin Scalia commented: "I'm concerned about
complicating the criminal law. Is there any end to the number of endless
variations" in deciding how much police intrusion into home privacy is too
much? "It's too complicated."

By the end of the hearing, it did not appear that the court had any firm
idea how to choose between a homeowner's right of access and an officer's
need to "secure" a dwelling in order to protect evidence from being
destroyed.

In the Illinois case, officers had accompanied a woman to her trailer home
to remove her belongings and protect her because she feared her husband.
When she came out, she told police her husband had stashed marijuana under a
couch.

Her husband, Charles McArthur, came out and refused an officer's request to
search the trailer. The officer, dispatching another policeman for a search
warrant, would not let McArthur go back into the trailer alone. It took two
hours for the search warrant to arrive. With the warrant in hand, officers
entered, searched, and found marijuana and a pipe.

McArthur, charged with illegal possession of marijuana and drug
paraphernalia, sought to have the evidence blocked from his case, claiming
his rights were violated when he was barred from his home. An Illinois state
court upheld his claim, so far barring his trial.

The state of Illinois, supported by the Justice Department, urged the court
to rule that any time police have reason to believe evidence is inside a
home, and that it is at risk of being destroyed, they may bar the occupant
from entering.

A lawyer for the state, Joel D. Bertocchi, argued that keeping the occupant
outside was the "least intrusion" on privacy, and was justified because of
the genuine risk that the marijuana would be flushed down the toilet.

But McArthur's lawyer, Deanne F. Jones of Decatur, countered that giving
officers a broad right to "seize a home while they seek a warrant" did not
take into account the "high esteem" the court has accorded the privacy of
the home.

The arguments led the justices to speculate at length about ways to judge
how reasonable the officers' belief was that the marijuana would be
destroyed. Justice Stephen G. Breyer suggested that anybody would simply
assume that the occupant of a home where marijuana was stashed "would take
the dope and flush it down the toilet" if allowed to re-enter the dwelling.

Justice David H. Souter added: "Do [the police] have to hear the sound of
water flushing" before they could take action to protect the evidence?

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

A final ruling in the case by the justices is expected early next year.