US Supreme Court Briefs

No. 99-1132


In the Supreme Court of the United States

ILLINOIS, PETITIONER

v.

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
Department of Justice
Washington, D.C. 20530-0001 (202) 514-2217


QUESTION PRESENTED

Whether police officers who have probable cause to believe that a residencecontains incriminating evidence may temporarily prevent entry in order topreserve the evidence while they seek a search warrant.



In the Supreme Court of the United States

No. 99-1132

ILLINOIS, PETITIONER

v.

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 probablecause to believe that a residence contains incriminating evidence may temporarilyprevent entry while they seek a search warrant. The United States has asignificant law enforcement interest in ensuring that police officers maytake that reasonable step in order to preserve the evidence that is theobject of the warrant.

STATEMENT

On April 2, 1997, respondent's wife went to the trailer she shared withrespondent to remove her property from the residence. At her request, twopolice officers accompanied her. Pet. App. 2. The officers remained outsidethe trailer while she removed her belongings. J.A. 25-26. Afterwards, shetold the officers that respondent had marijuana hidden under the couch.An officer then knocked on the door and, when respondent answered, informedhim of his wife's accusation and asked for permission to search the trailer.Respondent denied that he had drugs in the trailer but refused to consentto a search. Pet. App. 2.

Within earshot of respondent, who had come out on the porch in front ofthe trailer, one of the officers asked respondent's wife if she would accompanythe 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 officertold respondent what was happening. From that time until the officers obtainedthe warrant, they did not allow respondent to enter the trailer unless heagreed to be accompanied by an officer. Respondent, so accompanied, enteredthe trailer two or three times to obtain cigarettes and to make telephonecalls. 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 theresidence. She too was told that she was not permitted to enter unless accompaniedby an officer. J.A. 17-18.

While the police officers awaited the arrival of the warrant, no officertold 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 whichtime the officers entered the trailer, located the marijuana and drug paraphernalia,and placed respondent under arrest. Ibid.; 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 theevidence on the ground that the police officers had violated the FourthAmendment by preventing him from entering his trailer while they obtainedthe search warrant. Pet. App. 1-2. He did not contest the validity of thewarrant or that the officers had probable cause to believe the residencecontained marijuana and to secure the residence. Id. at 4. At the suppressionhearing, respondent testified that he would have destroyed the marijuanaif he had been permitted to enter the trailer alone. J.A. 27.

The trial court granted respondent's motion to suppress, and the AppellateCourt of Illinois affirmed. Pet. App. 1-14. The appellate court noted that,in Segura v. United States, 468 U.S. 796 (1984), "the Court seemedto agree that the seizure of a residence and its contents is permissibleabsent exigent circumstances if there is probable cause, but that entryinto the residence when securing it requires probable cause and exigentcircumstances." Pet. App. 8. The appellate court opined, however, thatSegura did not address whether police officers, while securing a dwelling,may "limit the freedom of movement of persons within, into or out ofthe secured premises." Ibid. (quoting 3 Wayne R. LaFave, Search andSeizure § 6.5(c) at 366 (3d ed. 1996)) (internal quotation marks omitted).The court also noted that Segura did not address cases in which "policeenter and incident to the entry either keep persons entitled to be in thepremises under close scrutiny or else require such persons to leave or notenter those premises." Ibid. (quoting 3 LaFave, supra, § 6.5(c)at 365).

The court concluded that "[t]his case represents a situation that Seguradid not address" and that "there was no authority for the policeaction in this case." Pet. App. 12. The court recognized that "thereis no evidence the police affirmatively ordered [respondent] out of thetrailer." Id. at 11-12. The court nonetheless held that "the policeconduct amounted to a constructive eviction of [respondent] from his residence"because respondent was on "the front porch when police told him hehad to remain outside the trailer" and he was thus "still on hispremises." Id. at 12. The court further concluded that the police officers"secured the dwelling from the inside" because an officer accompaniedrespondent when he went inside to obtain cigarettes and to make phone calls.Ibid. 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 awaitingthe search warrant was an unreasonable seizure (and probably an unreasonablesearch) under the fourth amendment so that the evidence discovered in theresidence upon execution of the search warrant was properly suppressed."Id. at 13.1 The Supreme Court of Illinois denied petitioner leave to appeal.Id. at 15.

SUMMARY OF ARGUMENT

Although the police officers seized respondent's trailer when they temporarilyprevented his entry, that seizure was reasonable under the Fourth Amendment.To determine the reasonableness of a seizure, the Court balances the government'slaw enforcement interests against the intrusion on Fourth Amendment interests.That analysis indicates that police officers who have probable cause tobelieve that a residence contains evidence may temporarily prevent entryin order to preserve the evidence while they seek a warrant.

The Court has repeatedly recognized that there is a strong law enforcementinterest in preventing tampering with evidence. On the other side of thebalance, the intrusion caused by a seizure, which invades only possessoryand not privacy interests, is limited. Moreover, the seizure here-a baron entry pending issuance of a warrant-is temporary and restricts only immediateuse of the property.

The Court's precedents confirm that the interest in preserving evidencecan temporarily supercede an individual's possessory interest in propertywhen there is probable cause to believe that the property contains incriminatingevidence. Police officers may make such warrantless seizures of evidencein plain view; they may also seize containers and vehicles based on probablecause to believe that they are associated with criminal activity. See Hortonv. California, 496 U.S. 128, 136-137 (1990); United States v. Place, 462U.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 Courthas approved the conduct at issue here-securing premises from the outsideto prevent destruction of evidence within. See, e.g., Segura v. United States,468 U.S. 796 (1984). Because securing a dwelling from the outside by preventingentry does not invade the physical integrity of the residence or the privacyof the occupants, the rule that a warrant or a valid exception is requiredwhen police officers enter or search a home is not implicated. Cf. Paytonv. New York, 445 U.S. 573 (1980).

Although the police officers had particularized suspicion that respondentwould destroy evidence if he was allowed to enter his trailer unaccompanied,the Fourth Amendment does not require such individualized suspicion beforeofficers may secure a residence from the outside while seeking a warrant.The inherent risk of tampering with evidence justifies that limited interferencewith the owner's use of his property. Requiring individualized suspicionwould impose unwarranted impediments to law enforcement and generate unnecessarylitigation.

The Appellate Court of Illinois erred in concluding that the police officersconstructively evicted respondent and entered his trailer without his consentor a warrant. Respondent was on his front porch when the officers preventedhis entry into the trailer, and that location, which is exposed to and usedby the visiting public, is not protected by the Fourth Amendment from governmentintrusion. See United States v. Santana, 427 U.S. 38, 42 (1976). An officerentered the trailer without a warrant only to accompany respondent whenhe made phone calls and obtained cigarettes. Respondent, who had lawfullybeen 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 CONTAINSINCRIMINATING EVIDENCE MAY TEMPORARILY PREVENT ENTRY IN ORDER TO PRESERVETHE EVIDENCE WHILE THEY SEEK A WARRANT

In Segura v. United States, 468 U.S. 796 (1984), the Court held that theFourth Amendment's exclusionary rule did not require the suppression ofevidence seized from a residence pursuant to a valid search warrant eventhough federal agents had earlier entered illegally and then remained insideto prevent destruction of evidence. Id. at 799, 813-816. Five Justices agreedthat the exclusionary rule did not apply. Ibid. Two Justices also addressedwhether the agents' securing of the premises complied with the Fourth Amendment.Id. at 805-813 (Burger, C.J., joined by O'Connor, J.). Chief Justice Burgerand Justice O'Connor concluded that, when police officers have probablecause to believe that a residence contains evidence of criminal activity,they may temporarily secure the dwelling to prevent removal or destructionof evidence. Ibid.

This case poses a question similar to the one addressed by Chief JusticeBurger and Justice O'Connor in Segura: whether police officers may, whilethey seek a search warrant, secure a residence (in this case, from the outside)when they have probable cause to believe that it contains incriminatingevidence. As the Appellate Court of Illinois recognized, "[a]t theheart of this issue is the preservation of evidence. Clearly, if policesecure a dwelling they prohibit the destruction of the sought-after evidence.On the other hand, if police do not secure a dwelling, they risk losingthe evidence." Pet. App. 11. Contrary to the conclusion of the appellatecourt, however, the Fourth Amendment does not prevent police officers fromguarding against that risk. Police officers who have probable cause to believethat a residence contains incriminating evidence may temporarily prevententry in order to preserve the status quo while they seek a warrant.2

A. By Preventing Entry Into Respondent's Trailer, The Police Officers SeizedThe Trailer But Did Not Seize Respondent

"From the time of the founding to the present, the word 'seizure' hasmeant a 'taking possession.'" Califonia v. Hodari D., 499 U.S. 621,624 (1991) (quoting 2 Noah Webster, An American Dictionary of the EnglishLanguage 67 (1828); 2 John Bouvier, A Law Dictionary 510 (6th ed. 1856);Webster's Third New International Dictionary 2057 (1981)). A seizure ofproperty thus occurs "when there is some meaningful interference withan individual's possessory interests in that property." United Statesv. Jacobsen, 466 U.S. 109, 113 (1984). Therefore, the police officers "seized"respondent's trailer when they interfered with his possessory interestsby temporarily preventing his unaccompanied entry.3

Although the officers seized respondent's residence by securing it and preventingunaccompanied entries, they did not seize respondent. A seizure of a personoccurs only when "a reasonable person would believe that he or sheis 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 "mightindicate a seizure * * * [include] the threatening presence of several officers, the displayof 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 withthe 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 allowedto enter his trailer (unless accompanied by an officer) for less than twohours while the police obtained a search warrant. He was not threatenedor physically restrained; he was not handcuffed; he was not told that hewas under arrest or given Miranda warnings. J.A. 29-30; Pet. App. 14. Underthose circumstances, a reasonable person would not have believed that hewas unable to go anywhere else he desired. Indeed, respondent agreed thatthe 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-establishedlaw enforcement practices that are commonly recognized as constitutional.Police officers often must cordon off an area during an investigation, forexample, to apprehend a fugitive or to investigate a bomb threat. When theydo so, they do not thereby seize the persons whom they prevent from enteringthe area. Cf. Chicago v. Morales, 527 U.S. 41, 69 (1999) (Kennedy, J., concurringin part and concurring in the judgment) (discussing with approval situationsin which "the police tell a pedestrian not to enter a building andthe 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

B. The Temporary Seizure Of Respondent's Trailer Was Reasonable BecauseThe Officers Had Probable Cause To Believe That It Contained IncriminatingEvidence

1. The essential requirement of the Fourth Amendment is that searches andseizures be reasonable. See Maryland v. Wilson, 519 U.S. 408, 411 (1997).To determine the reasonableness of a search or seizure, the Court balancesthe government's law enforcement interests against the intrusion on FourthAmendment interests. Ibid. Application of that analysis here indicates thatthe police officers acted reasonably in temporarily preventing entry intorespondent's trailer, which they had probable cause to believe containedincriminating evidence, in order to preserve that evidence while they soughta warrant.5

a. Law enforcement has a strong interest in prevening tampering with evidencepending the issuance and execution of a warrant to search for and seizethat evidence. "Unless there is some kind of a power to prevent removalof material from the premises, or destruction of material during this time,the search warrant will almost inevitably be fruitless." Segura, 468U.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 evidencethat is capable of ready destruction, such as narcotics. See Richards v.Wisconsin, 520 U.S. 385, 391 (1997) (drug investigations frequently presentthe risk that evidence will be destroyed if occupants have advance noticeof a search); Michigan v. Summers, 452 U.S. 692, 702 (1981) (search fornarcotics likely to trigger "frantic efforts to conceal or destroyevidence"); Ker v. California, 374 U.S. 23, 28 n.3 (1963) (likely thatsuspects will attempt to dispose of drugs before police seize them). Indeed,respondent acknowledged that he would have destroyed the marijuana if hehad been allowed to reenter his trailer unaccompanied by an officer. J.A.27.

This Court has recognized the importance of the interest in preventing tamperingwith evidence in a variety of contexts. A limited search incident to anarrest is permitted in part because of the danger of destruction of evidence,even when police officers have no individualized suspicion that the personarrested is concealing evidence or intends to destroy it. See Chimel v.California, 395 U.S. 752, 763 (1969). The risk of losing evidence likewisesupports the rules that incriminating evidence found in plain view, andcontainers and vehicles linked with criminal activity, may be seized withouta warrant. See United States v. Place, 462 U.S. 696, 701-702 (1983); Arkansasv. 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 theauthority of firefighting officials to remain in a building for a reasonabletime and search it after extinguishing a fire. Michigan v. Tyler, 436 U.S.499, 510 (1978). Indeed, when police officers have individualized suspicionthat evidence will be destroyed, they may make intrusions as significantas entering a dwelling without knocking and announcing their presence orobtaining a warrant. See, e.g., Richards, 520 U.S. at 395; United Statesv. 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-temporarilypreventing entry into a residence while police officers seek a warrant-islimited. Unlike a search, which invades privacy interests, a seizure affectsonly 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. at113 & 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 entryhere, are thus generally less intrusive than searches, because privacy isthe "principal object" protected by the Fourth Amendment, Wardenv. Hayden, 387 U.S. 294, 304 (1967). See Segura, 468 U.S. at 806 (Burger,C.J., joined by O'Connor, J.); Chadwick, 433 U.S. at 13-14 n.8. See alsoJones v. United States, 357 U.S. 493, 498 (1958) ("The decisions ofthis Court have time and again underscored the essential purpose of theFourth Amendment to shield the citizen from unwarranted invasions into hisprivacy."). Cf. Soldal, 506 U.S. at 62-66 (rejecting contention thatseizures involving no intrusion on privacy or personal liberty are immunefrom scrutiny under the Fourth Amendment).

The intrusion on respondent's Fourth Amendment interests was particularlylimited because the police officers prohibited entry into his trailer onlytemporarily (for less than two hours while they obtained a search warrant)and because they did not infringe his other possessory interests-such asthe right to sell or to encumber the property. See J.A. 27. This Court hasrepeatedly recognized that temporary seizures are less intrusive than permanentones. 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); Adamsv. Williams, 407 U.S. 143, 146 (1972); United States v. Van Leeuwen, 397U.S. 249, 252-253 (1970).

Moreover, the intrusiveness of a seizure to preserve evidence while policeofficers seek a warrant is further reduced because there should be a promptjudicial determination whether there is probable cause to search the houseand 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 determinedin part by "whether the police are diligently pursuing a means of investigationwhich is likely to resolve the matter one way or another very soon"));California v. Acevedo, 500 U.S. 565, 575 (1991) ("we can assume thata warrant will be routinely forthcoming in the overwhelming majority ofcases").6

2. The Court's precedents confirm that "society's interest in the discoveryand protection of incriminating evidence from removal or destruction cansupersede, at least for a limited period, a person's possessory interestin property, provided that there is probable cause to believe that thatproperty is associated with criminal activity." Segura, 468 U.S. at808 (Burger, C.J., joined by O'Connor, J.). For example, as we discussedabove, if police officers have probable cause to believe that a containerholds evidence, they may seize the container while they secure a warrant.See, e.g., Acevedo, 500 U.S. at 575; Sanders, 442 U.S. at 761. Indeed, theymay seize it pending investigation based upon reasonable suspicion. SeePlace, 462 U.S. at 706. Further, when police officers are lawfully presentin a particular place, they may seize evidence in plain view provided theyhave 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. Theseprecedents reflect the principle that, because of the general risk of tamperingwith or loss of evidence, police officers may take reasonable measures topreserve the status quo pending issuance of a search warrant.

That principle also applies when, as in this case, police officers haveprobable cause to believe that evidence is contained in a dwelling. Theymay secure the dwelling to preserve the evidence by preventing entry fora reasonable period while they seek a warrant to search for and seize theevidence.

a. Absent consent or exigent circumstances, a warrant is generally necessaryto enter a dwelling whether to make an arrest or to search for and seizeevidence 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). "Butthe home is sacred in Fourth Amendment terms not primarily because of theoccupants' possessory interests in the premises, but because of their privacyinterests 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 homeis the chief evil against which the wording of the Fourth Amendment is directed."445 U.S. at 585. Entry into a dwelling invades the privacy interests thatlie at the heart of the Fourth Amendment. See id. at 587-588 & n.26;Jones, 357 U.S. at 498. Therefore, "the Fourth Amendment has drawna firm line at the entrance to the house. Absent exigent circumstances [orconsent], that threshold may not reasonably be crossed without a warrant."445 U.S. at 590. See also New York v. Harris, 495 U.S. 14, 17 (1990) (explainingthat "the rule in Payton was designed to protect the physical integrityof the home") (emphasis added).

When police officers temporarily secure a dwelling from the outside, asthey did here, they do not make an entry or otherwise invade the occupant'sprivacy interests in the home. The considerations that justify the warrantrequirement are therefore absent, and the general rule permitting temporaryseizures to preserve evidence based on probable cause applies.7

b. The Court's opinions reflect the understanding that a temporary seizureof a dwelling to preserve evidence pending issuance of a warrant is reasonableunder the Fourth Amendment. For example, in Jeffers, 342 U.S. at 52, theCourt held that a warrantless entry into a hotel room was unconstitutionalbecause there were no exigent circumstances, such as "imminent destruction,removal, or concealment of the property intended to be seized." TheCourt reasoned that police officers "could have easily prevented anysuch destruction or removal by merely guarding the door." Ibid. Similarly,in Mincey v. Arizona, 437 U.S. 385, 395 (1978), the Court held unconstitutionala warrantless search of an apartment in which a homicide had been committed.The Court noted approvingly, however, the use of a police guard to preventdestruction of evidence. Id. at 394. And, in Flippo v. West Virginia, 120S. Ct. 7 (1999) (per curiam), the Court reaffirmed that a warrantless searchof a dwelling in which a homicide has occurred is not permitted, but didnot suggest that police officers acted improperly in "clos[ing] offthe area" (ibid.) and "secur[ing]" the scene (id. at 8).Indeed, in rejecting the contention that the trial court had found the searchjustified by exigent circumstances, the Court reasoned that "[i]t seemsimplausible that the court found that there was a risk of intentional oraccidental destruction of evidence at a 'secured' crime scene." Id.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, arrestedthe occupants, and then remained on the premises to preserve evidence untilthey obtained a warrant. 468 U.S. at 800-801. The government conceded thatthe entry was illegal but argued that the subsequent securing of the premiseswas lawful and that evidence obtained in a search pursuant to the warrantwas admissible. Id. at 804. The Court upheld the admissibility of the evidence.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 reasonablewhen police officers have probable cause to believe the property containsevidence of a crime and a seizure will preserve the status quo and the availabilityof the evidence. See 468 U.S. at 805-813. Applying that conclusion to thesecuring of premises, the Chief Justice approved of a course of action bywhich police officers would "secure the premises from the outside bya 'stakeout' once the security check revealed that no one other than thosetaken into custody w[as] in the apartment." Id. at 811. Five Justicesjoined the remainder of the opinion, which held that, regardless of thelegality of the initial entry, the evidence was lawfully seized pursuantto an untainted warrant and should not be suppressed. Id. at 813-814. TheCourt indicated that the agents lawfully could have secured the premisesfrom the outside. See id. at 814 ("Had police never entered the apartment,but instead conducted a perimeter stakeout to prevent anyone from enteringthe apartment and destroying evidence, the contraband now challenged wouldhave been discovered and seized precisely as it was here."). Indeed,even the dissenters apparently agreed that the authorities could have sealedoff the premises from the outside without violating the Fourth Amendment.See id. at 824 n.15 (dissenting opinion) ("I assume impoundment wouldbe permissible even absent exigent circumstances when it occurs 'from theoutside'-when the authorities merely seal off premises pending the issuanceof a warrant but do not enter."). Thus, all of the Justices in Seguraappear to have endorsed the external securing of a dwelling while the policeseek a warrant. See 3 LaFave, supra, § 6.5(c) at 366.

C. Individualized Suspicion That Evidence Would Be Destroyed Was Not NecessaryTo Support The Temporary Seizure

In this case, the police officers had reasonable suspicion that respondentwould destroy evidence if he was allowed to enter his trailer alone.8 TheFourth Amendment, however, does not require such individualized suspicionbefore police officers may prevent entry into a residence while seekinga warrant. The inherent risk that evidence will be destroyed, altered, orconcealed is sufficient to justify that limited interference with the owner'suse of the property.9

1. The cases in which the Court has approved temporary seizures based onprobable cause have not involved particularized suspicion that evidencewould be destroyed or damaged. As Chief Justice Burger and Justice O'Connornoted in Segura, the Court in Sanders approved the warrantless seizure ofa suitcase from a car even though police officers could have followed thecar until a warrant issued in order to ensure that evidence would not belost. 468 U.S. at 808; see Sanders, 442 U.S. at 761. See also Acevedo, 500U.S. at 575 (noting that "[l]aw enforcement officers may seize a containerand hold it until they obtain a search warrant" without indicatingthat there is any requirement of particularized suspicion that the containerwill be moved or its contents disturbed). Likewise, in Chambers v. Maroney,399 U.S. 42 (1970), the Court held that, because police officers had probablecause to search an automobile, they could seize and impound it "forwhatever period [was] necessary to obtain a warrant for the search"(id. at 51), even though "there was no immediate fear that the evidencewas in the process of being destroyed or otherwise lost." Segura, 468U.S. at 807 (Burger, C.J., joined by O'Connor, J.).10

Similarly, individualized suspicion that the evidence will be destroyedis 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 ofsuch evidence without a warrant is reasonable because of the "riskof the item's disappearance." Place, 462 U.S. at 701.11 Nor is a particularizedsuspicion that a wanted felon will flee necessary to justify a public arrestwithout a warrant. See United States v. Watson, 423 U.S. 411, 423-424 (1976).Rather, "it is recognized that in any felony case the person to bearrested may attempt to flee." Chimel, 395 U.S. at 780 (White, J.,dissenting, 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 securingof a dwelling in cases in which there was no particularized reason to believethat evi- dence would be damaged or destroyed. For example, in Mincey, inwhich 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." 437U.S. at 394. See also Flippo, 120 S. Ct. at 8 n.2; Jeffers, 342 U.S. at52. And, in Segura, "[a]ll members of the Court appear[ed] to agreethat the mere seizure of the premises and contents (that is, a mere interferencewith possessory interests) is permissible on probable cause even absentexigent circumstances." 3 LaFave, supra, § 6.5(c) at 366 (emphasisadded).

2. Law enforcement would be impeded if police officers were required todevelop particularized suspicion that each person whose entry they soughtto 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 theofficer had probable cause to believe that the residence contained evidenceof a crime, unless he also had specific reason to suspect that the particularperson was implicated in the illegal conduct.

Yet entry by an individual whom the evidence does not incriminate may posea significant (if unknown) risk that evidence will be removed or destroyed.Although such an individual may not have a direct interest in tamperingwith the evidence, he may nonetheless be willing to destroy evidence toassist others whom the evidence does incriminate, or even to avoid suspicionbeing cast on him. His willingness to do so will depend on a wide arrayof facts that will be difficult for police officers to ascertain, includingwhether he knows that the evidence exists, whether he knows that the officersare planning to seize it, whether he knows that the evidence is incriminating,whether he knows whom it incriminates, his relationship to the individualswhom it incriminates, and his willingness to obstruct justice in order toaid those individuals.

In this case, for example, respondent's mother arrived at the trailer aftera phone conversation with respondent. J.A. 17-18. The police officers couldnot know whether she was involved in, or even aware of, her son's possessionof marijuana. Further, they could not be sure whether respondent had informedher of the events unfolding at the trailer. And the officers could not knowwhether she was willing to destroy the evidence to protect her son.

A requirement of individualized suspicion not only would impede law enforcementbut also would consume judicial resources with litigation over the reasonablenessof police judgments in particular cases. The Court has relied on the prospectof such litigation in declining to require an inquiry into individualizedsuspicion 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 considerationalso supports rejection of a case-by-case inquiry into the danger of evidencetampering here.

D. This Case Involves Neither A Constructive Eviction Nor A Search WithoutA Warrant Or Consent

The Appellate Court of Illinois held that the police officers violated theFourth Amendment in this case for two reasons: First, the court concludedthat the officers "contructive[ly] evict[ed] [respondent] from hisresidence" because he was on his front porch when they told him hecould 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 respondent into the trailerwhile he made telephone calls and obtained cigarettes. Id. at 12-13. Bothconclusions are incorrect.

1. The appellate court found no evidence that the officers ordered respondentto leave his trailer. Pet. App. 11-12. Nonetheless, because respondent wason the front porch and thus "still on his premises" when the officersprevented his reentry into the trailer, the court determined that the policeconduct amounted to a "constructive eviction" of respondent. Id.at 12.

That determination was mistaken. "What a person knowingly exposes tothe public, even in his own house or office, is not a subject of FourthAmendment protection." Katz v. United States, 389 U.S. 347, 351 (1967).Although, as a matter of property law, respondent's front porch, like thethreshold of his trailer and the yard surrounding it, is private, "itis nonetheless clear that under the cases interpreting the Fourth Amendment[respondent] was in a 'public' place." See Santana, 427 U.S. at 42.See also 1 LaFave, supra, § 2.3(f) at 506-507 ("places visitorscould be expected to go (e.g., walkways, driveways, porches)" are notcurtilage protected by the Fourth Amendment from intrusion) (footnotes omitted).Just as the officers in Santana did not invade any privacy interest whenthey sought to arrest the defendant as she stood on her threshold, the officershere did not invade respondent's privacy interests or "constructive[ly]evict[]" him "from his residence" (Pet. App. 12) when theyprevented 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 officeraccompanied respondent into the trailer while he made telephone calls andobtained cigarettes. The Fourth Amendment's prohibition against warrantlesssearches does not apply when voluntary consent has been obtained. See Illinoisv. Rodriguez, 497 U.S. 177, 181 (1990). In this case, respondent consentedto the officer's entry.

As we have explained, the police officers could constitutionally have deniedrespondent all access to the trailer, in order to preserve evidence whilethey obtained a warrant. See pp. 11-19, supra. Therefore, the officers couldconstitutionally condition respondent's access to the trailer on his agreementthat an officer could accompany him, because the officer's presence wasa reasonable means to neutralize the risk that respondent would destroyevidence if he entered. Cf. Dolan v. City of Tigard, 512 U.S. 374, 385,391 (1994) (the government may condition a benefit on the relinquishmentof a constitutional right if the waiver of the right is reasonably relatedto the benefit).

The police officers advised respondent that he could enter the trailer onlyif he was accompanied by an officer. J.A. 22, 27, 30. By choosing to enterunder that reasonable condition, respondent consented to the officer's entry.12Cf. United States v. Rosi, 27 F.3d 409, 412 (9th Cir. 1994) (by asking theFBI agents who had arrested him for permission to change his clothes andproviding them with a key to his condominium, the defendant consented totheir 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


1 The court speculated that the police officers may also have unlawfullyseized respondent, but it did not decide that issue. Pet. App. 13-14. Thecourt did not address petitioner's argument (Illinois Br. 18, 35-37) that,even if securing respondent's residence was unlawful, the contraband discoveredlater during the search pursuant to a valid, untainted warrant was admissiblebecause it had an independent source.

2 Respondent has contested neither the existence of probable cause to believethat his trailer contained marijuana nor the validity of the search warrantobtained by the police officers. Pet. App. 4. This case therefore does notpresent the question whether a temporary prohibition on entry into a residencerequires suppression when police officers reasonably believe that they haveprobable cause but a magistrate or a reviewing court ultimately determinesthat their belief was mistaken. Cf. United States v. Leon, 468 U.S. 897,926 (1984). Nor does the case present the question whether preventing entrymay be justified in some circumstances when police officers have only reasonablesuspicion that the premises contain incriminating evidence. Cf. United Statesv. Place, 462 U.S. 696, 702 (1983). Finally, as we explain at pp. 24-26,infra, this case does not present the question whether police officers caneither enter the premises or order the occupants to leave in order to securethe 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 contrabandthat the officers discovered only when they later searched the trailer pursuantto a warrant. Police officers seize a tangible, movable object only whenthey take it under their physical control. See Hodari D., 499 U.S. at 624("For most purposes at common law, ["seizure"] connoted notmerely grasping, or applying physical force to, the animate or inanimateobject in question, but actually bringing it within physical control.");1 LaFave, supra, § 2.1, at 375-376 (3d ed. 1996) (defining seizure as the "actof physically taking and removing tangible personal property"). Policeofficers therefore do not seize evidence until they actually discover itand assert control over it, even if they have secured the premises wherethe evidence is located. For that reason, the Court has given detailed considerationto the circumstances in which police officers may seize evidence found inplain view while executing a warrant, even though the area being searchedis 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 individualitems from an automobile as a seizure even when police officers had previouslyseized the automobile. See, e.g., Colorado v. Bannister, 449 U.S. 1, 3-4(1980); Harris v. United States, 390 U.S. 234, 236 (1968).

4 In any event, seizure of respondent would have been justified becausepolice officers had probable cause to believe he had committed a crime basedon his wife's statement that he had marijuana hidden under his couch. SeeJ.A. 15, 19; 720 Ill. Comp. Stat. 550/4 (West 1993 & Supp. 2000) (criminalizingpossession of marijuana); id. 600/3.5 (West 2000) (criminalizing possessionof drug paraphernalia). This case does not present the question whether,absent probable cause, seizure of respondent would have been justified asincident 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 searchfor contraband founded on probable cause implicitly carries with it thelimited authority to detain the occupants of the premises while a propersearch is conducted") (footnote omitted); id. at 702 n.17 (suggestingthat the Court would reach the same result with regard to a lawful searchwithout a warrant).

5 Even if the seizure of respondent's residence had been unlawful, the Illinoiscourts should not have excluded the evidence, which was seized in a lawfulsearch pursuant to a valid, untainted warrant. The warrant, the validityof which respondent does not contest, Pet. App. 4, was supported by informationthat the officers obtained from respondent's wife before any interferencewith 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 warrantis admissible based on the "independent source" rule regardlessof whether unlawful police action preserved the evidence. See 468 U.S. at813-816; see generally Silverthorne Lumber Co. v. United States, 251 U.S.385, 392 (1920). That holding applies here. The only sense in which theseized evidence could be viewed as "in some sense the product of illegalgovernmental activity," United States v. Crews, 445 U.S. 463, 471 (1980),is because respondent would have illegally destroyed the evidence if theofficers had not prevented his entry into the trailer. See J.A. 27; 720Ill. Comp. Stat. 5/31-4(a) (West 1993 & Supp. 2000) (criminalizing destructionof evidence to prevent apprehension). The Court rejected that reasoningin Segura, explaining that there is no "'constitutional right' to destroyevidence." 468 U.S. at 816. As we explained at note 1, supra, the appellatecourt did not address the independent-source issue in its opinion in thiscase, although petitioner raised the issue. In their briefs before the appellatecourt, the parties disputed whether petitioner had properly preserved theissue. See Defendant-Appellee Br. 3; Illinois Reply Br. 12-16.

6 The intrusion on respondent's Fourth Amendment interests was even morelimited because the police allowed him to enter his trailer accompaniedby an officer. J.A. 22, 27-28, 30.

7 Of course, a temporary seizure that would otherwise be lawful may be renderedunlawful by the manner in which it is executed, including its duration.See Place, 462 U.S. at 707-710. And a total, permanent seizure of a dwellingmay so significantly intrude on the occupant's possessory interests thateven a warrant is not sufficient. See United States v. James Daniel GoodReal Property, 510 U.S. 43 (1993) (due process requires notice and hearingbefore seizure of real property for forfeiture because such a seizure givesgovernment the right to prohibit sale, to evict occupants, to modify theproperty, to condition occupancy, and to receive rents). The seizure forthe purposes of preserving evidence that occurred here, however, lastedless than two hours and involved only a limited restriction on respondent'sright to use his property.

8 Respondent's awareness of the police presence outside his residence (J.A.25-26) was sufficient grounds for a reasonable officer to suspect that respondentwould destroy narcotics that he had hidden inside. The reasonableness ofthat suspicion was strengthened here by several other circumstances: First,respondent knew that police officers were assisting his wife while she movedout (ibid.), and respondent might therefore have suspected that she wouldtell the officers about his drugs in order to get him into trouble (seeJ.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 conversationwith the officers in which she agreed to accompany an officer to seek asearch warrant. J.A. 26.

9 As we noted at p. 12, supra, that risk is especially prevalent when theevidence for which the officers are seeking a warrant is narcotics or anotherreadily destructible material. Nonetheless, almost all evidence is subjectto tampering that may impair its usefulness to police investigators; forexample, the serial numbers on stolen merchandise can be removed or obscuredeven if the merchandise is too large to destroy. The possibility that theremay be a few situations in which there is no danger of tampering with evidencedoes not justify a general requirement of individualized suspicion, whichwould pose impediments to law enforcement and could consume significantjudicial resources, see pp. 22-23, infra.

10 The Court went on to hold that the car could be searched immediatelybecause "there is little to choose in terms of practical consequencesbetween an immediate search without a warrant and the car's immobilizationuntil a warrant is obtained." Chambers, 399 U.S. at 52. The Court notedthat the same reasoning would not necessarily support immediate search ofa house based on probable cause alone but explained that "there isa constitutional difference between houses and cars." Ibid.; see alsoChadwick, 433 U.S. at 12-13 (noting lesser expectation of privacy in automobiles).

11 Our rule is thus consistent with the Court's statement in Place thattemporary seizures do not require a warrant "if the exigencies of thecircumstances demand it or some other recognized exception to the warrantrequirement is present." 462 U.S. at 701. Because there is generallya risk that evidence will be destroyed or tampered with while police officersare 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 plainview as an example of when the exigencies of the circumstances justify seizurewithout a warrant even though the Court has not required individualizedsuspicion that evidence in plain view will be destroyed to support its warrantlessseizure.

12 When the officer entered the trailer on those occasions, he "juststepp[ed] right inside the door and just stood by the doorway." 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 officersfound when they later searched the trailer pursuant to the warrant. Thus,even if respondent had not consented to the entry, the Illinois courts shouldnot have excluded the evidence based on that entry, because it was not "theproduct of illegal governmental activity." Harris, 495 U.S. at 19 (quotingCrews, 445 U.S. at 471).

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