JUSTICES HEAR CASE OF SUSPECT BARRED FROM OWN HOME

ILLINOIS DRUG SEARCH TESTS BALANCE OF POLICE POWER, 4TH AMENDMENT

WASHINGTON -- Backed by the U.S. Justice Department and 23 other states,
Illinois asked the Supreme Court on Wednesday to let police stop drug
suspects from entering their own homes while officers obtain a warrant to
search inside.

Police should be able to bar access to a home, Illinois Solicitor General
Joel Bertocchi told the justices during oral arguments, when officers
suspect some wrongdoing and want to make sure evidence will not be destroyed.

But Deanne Jones, representing an Illinois man who was charged with a
misdemeanor marijuana violation after drugs were found in his trailer,
emphasized "the right to (one's) home" and said the Constitution protects
individuals from such seizures unless police believe that evidence is "in
immediate danger" of being ruined.

Wednesday's case is one of a series of disputes this term over police
powers to search individuals and seize property when they do not have a
warrant. It tests the balance between law enforcement's need to protect
evidence and an individual's Fourth Amendment guarantee against
unreasonable searches and seizures.

The case began when police accompanied Tera McArthur to a trailer in
Sullivan, Ill., that she shared with her estranged husband, Charles
McArthur, so she could peaceably remove her belongings. She told one of the
officers that Charles McArthur had hidden marijuana under a couch. He
denied the claim.

Police sought a search warrant, and while one of the officers left the
scene to obtain the proper authorization, the other stayed at the trailer
and refused to let McArthur re-enter his home.

After two hours, officers returned with a warrant, entered the trailer and
found marijuana and drug paraphernalia.

McArthur argued that the evidence should be suppressed at trial based on
Fourth Amendment grounds. Lower courts in Illinois agreed.

In the state's appeal, Bertocchi stressed that the intrusion on McArthur's
privacy was brief and that the government's interest in keeping him from
flushing the marijuana down the toilet or otherwise wrecking the evidence
outweighed the infringement on McArthur's rights.

Jones countered that the police interest in preserving a relatively small
amount of marijuana -- about 2 grams -- did not justify the breach in
McArthur's privacy. She said police should be able to keep a resident out
of his home only under emergency situations, such as when they think the
suspect is actually destroying drugs.

"You mean they have to hear the sound of water flushing?" Justice David
Souter asked.

Justice Stephen Breyer noted that keeping McArthur out of the home was less
intrusive than an officer entering without a warrant.

Breyer wondered whether the officer might have deserved "a Fourth Amendment
medal" rather than criticism for his action.

Other justices expressed similar concerns in the case of Illinois vs.
McArthur about safeguarding potential proof of a crime.

Asked Justice Sandra Day O'Connor: "What could they do to preserve the
evidence in these cases? Nothing?"