US Supreme Court Briefs

No. 99-1132

In the
Supreme Court of the United States




On Writ of Certiorari to the Appellate Court of Illinois


Attorney General of Illinois

Solicitor General of Illinois
Counsel of Record

Assistant Attorneys General
100 West Randolph Street
12th Floor
Chicago, Illinois 60601
(312) 814-3698
Counsel for Petitioner

Printed by Authority of the State of Illinois (P.O. 2798775,---~~OiOO-l~, ".


ii ~R


I. Respondent's Possession of Marijuana
and Paraphernalia Was Sufficiently
Serious to Justify the External Im-
poundment of His Residence While a
Search Warrant Was Sought 1

II. The Distinction Between Felonies and Misdemeanors Is Not Suited to Supporting a "Bright-line Rule" to Govern the Propriety of
External Impound
ment 3
III. Officer Love's Conduct Falls Within a
Reasonable Rule Allowing External
Impoundment of a Residence Based on
Probable Cause While a Search War-
rant Is Sought 7
IV. Suppression in this Case Would Dis-
serve the Policies Behind the Exclu-
sionary Rule by Penalizing an Officer's
Deliberate Efforts to Honor a Defen-
dant's Constitutional Rights 12




United States v. Place,

Argersinger v. Hamlin,
407 U.S. 25 (1972)

Berkemer v. McCarty, 468
U.S. 420 (1984)...

Bumper u. North Carolina,
391 U.S. 543 (1968)...

Duncan v. Louisiana, 391
U.S. 145 (1968)

Johnson v. United States,
333 U.S. 10 (1948)

Miranda v. Arizona, 384
U.S. 436 (1966)...

Murray v. United States, 487
U.S. 533 (1988)...

Segura v. United States, 486
U.S. 796 (1984).

Steagald v. United States,
451 U.S. 204 (1981)

Tennessee v. Garner, 471
U.S. 1 (1985) ....

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







10, 11, 12



462 U.S. 696 (1983) 9
Welsh u. Wisconsin,
466 U.S. 740 (1984) 2, 3, 5, 6, 7

Constitutional and Statutory
U.S. Const., amend. IV

720 ILCS 5/11-9.1(a)

720 ILCS 5/12-2(a)

720 ILCS 5/12-3.1 ...

720 ILCS 5/12-3.2 .

720 ILCS 5/12-15 .

720 ILCS 5/12-21.6

720 ILCS 5/24-1 ...

720 ILCS 5/24-3.1 ...

720 ILCS 5/31-1 . .

720 ILCS 550/4(a)

720 ILOS 550/4(c) .

720 ILCS 550/4(d)













720 ILOS 550/5 through 550/9 6



Rather than address the heart of this case, Respondent instead focuses on its periphery. Seizing on several moments during which Officer
Love stood in Respondent's doorway and watched him retrieve cigarettes and make telephone calls, Respondent would elevate these marginal
events to the focal point of this case. His arguments, and those of amici curiae supporting him, treat this case as one that hangs on an illegal
search, thereby practically ignoring the fact that the impoundment procedure carried out by Officer Love deliberately avoided the need for a
warrantless search and limited the police officer's pre-warrant entries to brief, consensual and ultimately unincriminating observations.' The
Court should resist Respondent's entreaties to let the tail wag the dog in this matter.


Respondent contends that the misdemeanor offenses with which he was ultimately charged were not serious enough to justify Officer Love's
actions. This claim is new to this case; it was never made in the trial or appellate court. In any event, it misapprehends this Court's
pronouncements regarding the place that the nature of the offense occupies in the Fourth Amendment's balancing of interests.

1 See Pet. Brief at 12, 22-24.

2 3

Respondent principally relies on Welsh v. Wisconsin,
466 U.S. 740 (1984), for the proposition that the mari-
juana and paraphernalia possession misdemeanors charged
in this case lacked sufficient gravity. That case is
distinguishable from the instant one in several critical
respects. Welsh involved drunk driving, which was, under
Wisconsin law, "a nonjailable traffic offense," 466 U.S. at
742.2 By contrast, the offenses with which Respondent has
been charged are criminal drug violations, for which
sentences of incarceration may be imposed. See Pet. Brief
at 5 n. 3. The attachment of criminal penalties to the
possession of even a small quantity of marijuana, as well
as to the possession of equipment for its consumption,
suggests that Illinois takes such matters more seriously. In
addition, Welsh involved a nighttime warrantless entry
into a home to make an arrest of the occupant, 466 U.S.
at 741-43, while the instant case involves a mid-
afternoon external seizure of a residence that was
designed to, and did, avoid the need for a warrantless

When applied to the Fourth Amendment's balancing
test, these two factors, the greater legal consequence of
the offenses and the lesser intrusion of daytime im-
poundment, both militate in favor of a finding of rea-
sonableness. Indeed, the Welsh Court considered the
seriousness of the offense to be related to the presence of
exigent circumstances sufficient to justify a warrant-

2 Welsh himself was ultimately charged with a criminal
misdemeanor because of a prior conviction; however,
because the arresting officers did not know of the prior
conviction, the Court considered the officers to have had
probable cause to believe only that he had committed a
civil violation. 466 U.s. at 746 n.6.
less entry. 466 U.S. at 749-52. Because the impoundment
effected in this case required no entry at all, and in the
absence of any non-consensual entry, this case really
presents no occasion to consider the application of an
exception to the search warrant requirement.


Respondent urges the Court to seize upon the legal
character of the charges against him by creating a "bright
line rule" for determining whether "the seizure of and
warrantless entry into the home" to preserve evidence is
authorized. Resp. Brief at 29. Assigning determinative
weight to the legal classification of an offense would go
well beyond Welsh, which merely held that the seriousness
of the offense was a factor to be considered in
determining whether warrantless entry was proper, 466
U.S. at 751, 753. Lower court cases cited by Respondent
(Resp. Brief at 26-28) involved felonies, but none held
that warrantless provisional measures would not have
been justified by misdemeanor offenses.

Laying aside the fact that no warrantless entry occurred
in this case except by consent, the felony-misdemeanor
distinction is a poor one upon which to base such a rule.
The classification of an offense as a misdemeanor is
simply not a reliable indicator that the offense is not
serious. In asserting broadly that misdemeanor offenses
lack sufficient consequence to justify warrantless
impoundment or entry, Respondent cites a few such
provisions of Illinois criminal law that he

4 5

deems wanting. Resp. Brief at 35. His list omits more
weighty misdemeanor offenses, including 720 ILCS S/11-
9.1(a) (sexual exploitation of a child), 5/12-2(a) (nu-
merous forms of aggravated assault), 5/12-3.1 (battery of
an unborn child), 5/12-3.2 (domestic battery), 5/12-15
(certain forms of criminal sexual abuse), 5/12-2 1.6 (en-
dangering the life or health of a child), 5/24-1 (certain
weapons possession offenses), 5/24-3.1 (certain firearms
possession offenses), and 5/31-1 (resisting or obstructing
a peace officer). The designation of these offenses as
misdemeanors demonstrates, as this Court has recognized,
that the felony/misdemeanor distinction, once "'broad and
deep,"' is now "minor and often arbitrary," and that
"numerous misdemeanors involve conduct more
dangerous than many felonies." Tennessee v. Garner, 471
U.S. 1, 14 (1985) (citation omitted).

The legal classification of criminal offenses based on
available punishments also does not lend itself to useful
application by officers in the field. To be of any use, a
line, however bright, must be visible to the observer under
the conditions in which it is to be observed. Whether a
crime is classified as a felony or misdemeanor depends on
the lawful range of available sentences, a consideration
divorced in time and relevance from the concerns that are
paramount when someone's conduct is being investigated.
Despite Respondent's contentions to the contrary, the
assumption that officers in the field are specifically aware
of the sentencing classification of offenses is unsupported
and does not comport with common sense or the
definition of their jobs. Whether a crime is a felony or a
misdemeanor is primarily a concern of lawyers and judges.
Moreover, even assuming a police officer happens to
know whether a particular offense is a felony or misde-
meanor, it is unlikely that he or she would know, or even
could know, in the midst or even (as here) at the outset of
an investigation, what crime (or crimes) will ultimately be
charged. Similar concerns prompted the Court, soon after
Welsh was decided, to decline to create an exception to
the rule of Miranda v. Arizona, 384 U.S. 436 (1986),
based on the nature of the offense under investigation. In
Berkemer v. McCarty, 468 U.S. 420 (1984), the Court
concluded that officers questioning an arrested suspect
were not in a good position to predict what charges might
ultimately be brought. The Court reasoned that officers
acting at that preliminary stage often would not know
sufficient facts to choose from among a series of available
charges, perhaps because the charges ultimately brought
might depend on facts they could not then know
(including events that had not yet occurred), or because
an investigation into a minor offense could escalate into a
more serious one. 468 U.S. at 430-31.

The circumstances of this case well illustrate these
points. The information supplied by Tera McArthur did
not include the quantity of marijuana Respondent had
hidden under his couch. Without that information, Offi-
cer Love could not have known whether its mere pos-
session would have been a felony or a misdemeanor.
Because not more than 2.5 grams of marijuana was
recovered, Respondent was charged with a misdemeanor
violation under 720 ILCS 550/4(a) (as well as two
misdemeanor paraphernalia violations). Had the quantity
been 30 grams or more, even its mere possession would
have been a felony under 720 ILCS 550/4(d).

6 7

Likewise, as in Welsh (see supra at p. 2, n. 2), if Re-
spondent had a prior conviction for a like offense, a fact
the officers would not have been in a position to know at
the time (see Berkemer, 468 U.S. at 430-31), possession
of a mere 10 grams would have given rise to a felony
charge, 720 ILCS 550/4(c). The officers also could not
know, as they stood outside Respondent's trailer, whether
even a small quantity of marijuana would ultimately prove
to be evidence of a broader or more aggravated course of
felony conduct, such as conspiracy, distribution or
trafficking, or delivery to a type of person protected by a
specific statute. See 720 ILCS 550/5 through 550/9.

The distinction between felonies and misdemeanors
may readily be applied to determinations made by judges
and lawyers in legal proceedings, such as whether a
defendant has a right to a jury trial, see Duncan v.
Louisiana, 391 U.S. 145 (1968), or to be represented by
counsel at trial, see Argersinger u. Ham lin, 407 U.S. 25
(1972), but not to decisions, like that considered in
Berkemer, that must be made by police officers in the
field as the events of a criminal investigation unfold. It is
particularly unsuited to use in decisions involving the
execution of search warrants. Issuance of a search warrant
depends not on whether an entire offense has been
established, even if only by probable cause; instead an
officer need only aver the presence of some evidence
relevant to the commission of a crime. (For example, the
warrant in this case authorized a search for items "which
have been used in the commission of, or which constitute
evidence of' possession of marijuana. Jt. App. 3.). Search
warrants are by definition preliminary devices designed to
assist in determining what charges may ultimately be
appropriate; the manner of their
execution, and the procedures available to ensure that
their execution is effective, should not be guided by what a
full and complete investigation may ultimately dictate.

Although Welsh promotes consideration of the serious-
ness of an offense as a factor to be weighed in the Fourth
Amendment balance, consideration of that factor does
not dictate the result in this case, nor does it promote
Respondent's proposed bright-line rule. The possession of
even the drug amount recovered in this case, as well as
paraphernalia designed for its use, was deemed sufficiently
serious by the Illinois legislature to justify criminal
sanctions that could include imprisonment. More to the
point, the law places no limitation on the use of search
warrants themselves in misdemeanor cases. Absent such a
restriction, the impoundment procedure employed by
Officer Love in aid of obtaining a warrant was a
reasonable measure designed to preserve the efficacy of
the warrant process. Moreover, Welsh does not support
the elevation of the felony/misdemeanor distinction to a
controlling principle. It has no real relevance to officers
in the field, who will seldom have either the particulars or
the precognition to foretell what charges a prosecutor
may bring once the investigation is complete.


Aside from his contention that his offense was not
serious enough, Respondent does not seem to dispute

the notion that officers armed with probable cause may
secure a residence from the outside while they seek a
warrant to search it. Instead, Respondent claims that his
situation does not fit within the parameters of a
reasonable rule allowing such action. In fact, this case
presents a paradigmatic example of external impound-
ment as an appropriate response. Officer Love's actions
were necessary to preserve evidence of a crime and suf-
ficiently supported to warrant the intrusion, which was
itself sufficiently mitigated to accommodate Respondent's
constitutionally-protected privacy rights.

Two of Respondent's initial contentions may be dis-
posed of quickly. His claim that probable cause was
lacking at the time of the impoundment because Tera
McArthur had not told the officers that she knew what
marijuana looked like is also new to this case; as the
appellate court noted, Pet. App. 4, Respondent did not
contest the existence of probable cause for the seizure
below.3 His challenge now made defies common sense.
Mrs. McArthur told Officer Love that Respondent had
"dope" in the trailer and, when asked what kind, identified
it as "pot." Jt. App. 15, 19. The officer was entitled to
assume that, by identifying the substance as marijuana,
Mrs. McArthur was tacitly asserting that she knew what
marijuana looked like. This conclusion was further
supported by her statement that Respondent had hidden
the substance under the couch, Jt. App. 19. Language in
her warrant affidavit explicitly

~ In his brief in this Court, Respondent claims he did not
"dispute" probable cause because he did not "concede" it
and that he did claim on appeal that he was essentially
arrested without probable cause, Resp. Brief at 12,
assertions that do not contradict the appellate court's
memorializing her recognition (Jt. App. 9) was merely a
matter of form and did not undermine Officer Love's
reasonable assumption to that effect. Respondent's
suggestion that the seizure of his home lasted too long is
similarly meritless. Although Respondent correctly notes
that this Court disapproved a seizure of property that
lasted 90 minutes in United States v. Place, 462 U.S. 696,
710 (1983), that seizure was supported only by
reasonable suspicion. The seizure in this case was effected
based on probable cause, which, as explained in
Petitioner's opening brief (at 16), has been held to be a
sufficient basis to permit provisional seizures of property
for the time required to obtain a warrant. The
impoundment of Respondent's trailer lasted at most two
hours and perhaps less than that (see Pet. Brief at 4 and
n. 2), an eminently reasonable period in which to draft
and submit a warrant. There has been no suggestion of
undue or intentional delay on the part of the officers in
obtaining it.

Respondent's assertion that he did not consent to being
observed from his doorway by Officer Love when he
briefly re-entered his home after it had been secured
should also be rejected, and not just because those entries
were inconsequential. Initially, Respondent is wrong in
claiming that Petitioner waived the argument that
Respondent consented to these entries. Petitioner did
argue consent in the appellate court in its reply brief (at
page 7-8). Because Respondent did not raise unlawful
entry as grounds for suppression in the trial court at all,
and did so for the first time in his brief on appeal, that
reply brief presented Petitioner's first opportunity to
make the point. Respondent is also wrong in asserting
that Petitioner "admitted" that he did not

10 11

consent (Resp. Brief at 22); the statements he cites in
Petitioner's appellate court brief refer to his initial refusal
to consent to a search of the trailer, and not to his later
consent to be observed inside once Officer Love had
secured it.

In any event, Respondent has not made out a claim of
unlawful coercion. His reliance on Bumper v. North
Carolina, 391 U.S. 543 (1968), and Johnson v. United
States, 333 U.S. 10 (1948), is misplaced. In both those
cases, entry was gained as a result of acquiescence to
officers who, in fact, had no lawful authority to enter.
Bumper, 391 U.S. at 549-50; Johnson, 333 U.S. at 13-
15. Because Officer Love was entitled to impound Re-
spondent's trailer, Respondent yielded to the officer's
actual and lawful authority to prevent him from entering
alone in deciding to allow the officer to observe him. The
fact that he would have preferred, on the whole, to enter
alone did not make his consent constitutionally

Respondent's attempts to escape the implications of
Segura v. United States, 486 U.S. 796 (1984), for his
case are unavailing. Despite the endorsement of the
concept of external impoundment by all members of that
Court, see Pet. Brief at 17-18, Respondent insists that
the case has no bearing on one in which the homeowner
is present and has his freedom of movement in some way
restricted. In this regard it is worth noting that
Respondent concedes, although his movement was
restricted, that his person was not seized. Resp. Brief at
13-14. It is difficult to imagine how a residence could be
effectively secured without placing some restriction on
the movements of persons inside, a concept that could
not have been lost on the members of the Segura
Court in expressing their approval of external impound-
ment.4 Indeed, no member of the Court relied on the ab-
sence (due to arrest) of the occupants of the apartment in
expressing their approval of external impoundment; the
issue of the occupants' absence arose only in discussions
regarding the internal nature and 18-20-hour length of
the impoundment of the apartment. 468 U.S. at 813
(Opinion of Burger, C.J., joined by O'Connor, J.); id. at
826-827 (Stevens, J. dissenting).

As noted above, Respondent's claim that there was no
showing of exigent circumstances is irrelevant. Exigent
circumstances are a predicate for exception from the
warrant requirement, United States v. Karo, 468 U.S. 705,
714-15 (1984); Steagald v. United States, 451 U.S.
204, 211-12 (1981), and have not been held to be necessary
in the absence of a warrantless entry (or, as here, an
entry supported by another exception, i.e. that of
consent). Even if such circumstances were required in this
case, they were clearly present. Respondent has admitted
as much, both in person and through counsel. At the
suppression hearing, Respondent conceded that he would
have destroyed the evidence had he been given the
opportunity. Jt. App. 27, 29. Respondent's refusal to
recognize the implications of that concession is steadfast,
even to the point that he relies on it to argue that
preventing him from doing so caused the seizure of that

It is especially hard to ascribe significance to
preventing someone from entering his home in this case,
considering that Officer Love could have arrested
Respondent and thereby restricted his movements
entirely, see Pet. Brief at 13-14, as amLeus National
Association of Criminal Defense Attorneys, apparently
without irony, suggests he should have, Brief of NACDL at

12 13

evidence he now challenges. Resp. Brief at 37-38. This
argument contravenes the Segura Court's rejection of a
"'constitutional right' to destroy evidence," 468 U.S. at
The exigency in this case was not the risk, but the
certainty, of the destruction of evidence. And regardless
of how "imminent" the law requires that destruction to
be, see Resp. Brief at 17, this case possesses more than
the necessary immediacy. There is no reason to believe
that, had he been permitted to re-enter his home alone,
Respondent would have delayed in destroying the evi-
dence in accordance with the intention he has so candidly
declared. That intention might well have arisen as soon as
the officers arrived at the trailer, see Pet. Brief at 12 n. 9,
but became acute once Officer Love had sought consent
to search.


Finally, this Court should reject Respondent's suggestion
that the policies behind the exclusionary rule require
suppression of the evidence in this case.5 Respon

~ Although Respondent argues that Petitioner has waived any
claim in this regard in this Court, that assertion is inaccurate.
The appellate court decided this case on the basis of its
conclusion that the securing of Respondent's residence
violated the Fourth Amendment, and never addressed any
claim related to the validity of the warrant later issued.
Pet. App. 11-14. Should this Court agree with the lower court's
position on the Fourth Amendment claim and decide not to reach
the issue of
dent concedes that he is asking this Court to reexamine
Segura, but offers no substantive grounds upon which to
do so. Instead, he argues that suppression is necessary to
avoid the elimination of "incentives" on the part of police
officers to follow constitutional rules. Acceptance of this
argument would not only require overruling Segura; it
would also contravene Murray v. United States, 487 U.S.
533, 539-40 (1988), in which the Court found the incentives
created by the exclusionary rule to be just the opposite.
Respondent's reliance on the policy underlying the
exclusionary rule is especially ironic in light of the facts
of this case. He argues that "without the application of
the exclusionary rule, there is no incentive for the police
not to seize a person's home and make a warrantless
entry inside under the guise of preserving evidence... ."
Resp. Brief at 38 (emphasis supplied). If anything is clear
from the way Officer Love conducted himself in this case,
however, it is that he demonstrated an awareness of and
sensitivity to Respondent's Fourth Amendment rights
and, implicitly, the possibility of exclusion of anything he
recovered if he violated those rights. Officer Love eschewed
the warrantless entry of which Respondent complains in
favor of the less intrusive option of external
impoundment precisely because of that concern. To
repay the sort of conscious regard for constitutional
rights that this Court encourages in police officers would
essentially turn the incentives behind the exclusionary rule
on their heads.

the validity of the warrant, nothing would preclude the appellate
court from considering the issue (including any claim of waiver in
that court) on remand.



The judgment of the Appellate Court of Illinois should be reversed.

Respectfully submitted,

Attorney General of Illinois

Solicitor General of Illinois
Counsel of Record
Assistant Attorneys General
100 West Randolph Street
12th Floor
Chicago, Illinois 60601
(312) 814-3698

Counsel for Petitioner

September 20, 2000

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