HIGH COURT GETS DEBATE OVER POLICE 'IMPOUNDING' A HOME

Keeping Occupants Out Until Search Warrant Obtained Is At Issue

WASHINGTON -- The state of Illinois asked the Supreme Court yesterday to
let police officers bar people from entering their homes during the time it
takes to get a warrant to search for drugs or other illegal items that can
readily be destroyed.

An Illinois appeals court found that the practice of impounding a home --
limiting the occupant's freedom of movement and securing the building from
the outside -- violated the Fourth Amendment's prohibition against
unreasonable seizures. The 1999 ruling came in the case of a man whom the
police kept outside his trailer for the two hours it took to get a warrant
on the basis of information from his estranged wife that he had hidden
marijuana under the sofa.

Courts around the country have disagreed over what the police should be
able to do when, as in this case, they have probable cause to believe a
home contains readily destructible evidence of illegal activity but have
neither the occupant's permission nor a warrant to search.

Though it was not clear how the Supreme Court will decide the issue, the
argument underscored just how complex the constitutional law of search and
seizure has become.

"I'm concerned about complicating the criminal law more than necessary,"
Justice Antonin Scalia said to Joel Bertocchi, the Illinois solicitor
general, who was arguing the state's appeal. "I'm not sure human beings are
capable of figuring out so many variations," the justice added.

Under the Supreme Court's precedents, the police do not need a warrant to
enter a home when "exigent circumstances" -- signs that evidence is in the
process of destruction, for example -- justify immediate action.

There was considerable debate yesterday over whether exigent circumstances
existed in this case. Bertocchi said they did, and several justices
appeared to agree. The police first told the suspect, Charles McArthur,
that his wife had informed on him, and he told them to come back with a
warrant if they wanted to search.

"Why wouldn't the officer think, 'If I leave, he'll flush it down the
toilet,' " Justice Stephen G. Breyer said, adding: "That's what I would
think, and if he's intelligent, that's what he would have done."

Deanne Jones, representing McArthur, said that while such a scenario
sounded reasonable, it did not rise to the level of exigency needed to
justify impounding the home. She noted that the police officer had actually
created the problem by knocking on McArthur's door and telling him he was
under suspicion.

Jones suggested that the seriousness of the crime should be a factor in
deciding how much weight to give to the prospect that evidence might be
destroyed. McArthur's offense -- possession of 2.3 grams of marijuana --
was only a low-level misdemeanor, she said. Chief Justice William H.
Rehnquist asked whether the case might be different if the police had
probable cause to believe the trailer contained "a large stash of heroin,"
and she said it would be.

The Clinton administration entered the case on behalf of the state. Matthew
Roberts, an assistant solicitor general, told the justices that impounding
a home served the "strong law enforcement interest in preserving evidence,"
prompting an objection from Scalia.

"There is a considerable interest on the part of an individual in going
into his own home," Scalia said, mentioning the need to attend to a child,
take something off the stove, or turn off a computer. "We're going to go
crazy trying to balance these things all the time," he said.

Roberts said that a child's need for attention would be an exigent
circumstance, justifying a police officer in accompanying the suspect into
the house.

"What if that child is old enough to destroy the evidence," Justice John
Paul Stevens asked. "Can the police make the child come out?"

"The police can ask the child to come out," Roberts said.

"What if the child says, 'I'm too busy destroying evidence'?" Stevens
persisted, to general laughter in the courtroom. That, too, would create an
exigent circumstance, the government lawyer replied.