Preserving evidence pending a search warrant.

In Illinois v. McArthur,(1) the U.S. Supreme Court set out to answer a question that has troubled lower courts, and the Supreme Court itself, for many years: What should police do to preserve evidence in a building while they are waiting for a search warrant? The Court partially answered this question in McArthur, but it was on a narrow ground that was not supported by the facts, leaving the larger issue still unsettled.

In McArthur, the police accompanied Tera McArthur to the trailer she lived in to help remove her belongings without interference from her husband, Charles. While the police waited outside, she came out with her possessions and, as a coup de grace to the failed marriage, told the police that "Chuck had dope in [the trailer] ... underneath the couch."(2)

A police officer then knocked on the door and asked Charles, who was inside, for permission to search, which he denied. The officer dispatched a colleague, along with Tera, to get a search warrant, and ordered Charles, who had exited the trailer by this time, not to reenter it. The officer could not recall whether he had ordered McArthur out of the trailer or whether McArthur had come out on his own,(3) an important fact the Supreme Court ignored. It decided this case as if he had arrived at the trailer after the police decided to seek a warrant.

After about two hours, the police returned with a search warrant and found a small amount of marijuana under the couch.

The issue, according to the Court, was whether "prevent[ing a] man from entering [his] home for about two hours while [police] obtained a search warrant" violated the Fourth Amendment.(4) The Court concluded that it did not. It noted that the police had probable cause that there was evidence in the trailer and had "reason to fear that, unless restrained, [Charles] McArthur would destroy the drugs."(5) He admitted at the suppression hearing that he would have done so.(6)

The Court's resolution is reasonable. In fact, as the Court pointed out in an earlier case, Segura v. United States,(7) the majority had approved, in dictum, a "perimeter stakeout to prevent anyone from entering ... and destroying evidence."(8) Moreover, Justice John Paul Stevens, who dissented in Segura and was the sole dissenter in McArthur, joined the majority of the Court on this issue. He observed that "exigent circumstances" would not be a prerequisite for such a precautionary measure.(9)

In reaching this reasonable outcome, the Court turned the Segura dictum into law, stating that police may secure an empty building from the outside until a search warrant arrives.

The problem in both Segura and McArthur is that this is not what the police did. In Segura, narcotics agents arrested Segura in the lobby of his apartment building. They then took him to his apartment, entered it without permission, and arrested a woman who also lived there, removing her and three other people from the apartment.(10) In the process, the agents conducted a "limited security check," discovering, but not seizing, drug paraphernalia.(11) They then remained in the apartment for 19 hours until a search warrant, which was based solely on information obtained before the agents entered the apartment, finally arrived.

The appeals court held that the initial entry was illegal, and the U.S. Supreme Court declared that there was "no reason to question" this conclusion.(12) The Court agreed that the narcotics paraphernalia the agents saw upon entering the apartment was not admissible as evidence. The Court concluded, however, that narcotics discovered after the warrant arrived could be used as evidence because the search warrant was an "independent source" unrelated to the illegal entry.(13)

Thus, Segura assumed, without deciding, that police could not enter an occupied dwelling to secure the premises unless exigent circumstances suggested that evidence was about to be destroyed. The appeals court found that there were no such circumstances.(14)

The McArthur Court finessed this important question by assuming that Charles was outside his trailer when the police arrived, when in fact he was inside. He exited only after the police knocked on the door, asked to enter, and announced their intention to seek a search warrant. As noted above, the police officer did not recall whether he had ordered McArthur out of the trailer.

But this case should not hinge on the fortuity of the defendant's stepping outside. Under either version of the facts, the issue here is not one of sealing unoccupied premises but of seizing an occupied dwelling and ejecting the occupant.

The court below relied on an observation made by Professor Wayne LaFave of the University of Illinois Law School. Segura "did not address how to handle those cases where `police enter and incident to the entry either keep persons entitled to be in the premises under close scrutiny or else require such persons to leave or not enter those premises,'" he noted.(15)

In ruling against the police, the Illinois appellate court distinguished the situation where "the defendant resident is not on the premises when the police arrive to secure the residence from the outside while seeking a search warrant."(16)

Thus, the U.S. Supreme Court "resolved" a nonissue that the Segura Court had already resolved 17 years earlier. It failed to decide the issue Segura had left open, which was the basis of the lower court's decision: What are police to do when, having probable cause to search a structure, they fear that evidence may be destroyed while they await a warrant?

Actually, the Court has already provided some useful advice to police on this score: Ignore the Fourth Amendment. In both Segura and the later case of Murray v. United States,(17) the Court condoned police officers' unconstitutional entry to "secure" the premises pending the arrival of a search warrant. While tapping (slapping is too strong a term) the police on the wrists for the illegal entry, and excluding the immediately found evidence, the Segura Court nevertheless admitted the evidence found via the late-arriving search warrant under the "independent source" doctrine. That is, since the illegal entry did not provide the basis for the search warrant, the warrant is "independent" of the illegal entry.

Straightforward resolution

But there is a straightforward way to resolve the police-procedure quandary that the Court did not address. In the usual case, the resident or occupier of a structure (the Court's search rules apply equally to buildings other than dwellings, in most cases) is not likely to be sitting on the veranda watching as the police obtain evidence of probable cause that contraband is inside.

If the resident were outside watching, the Court would be correct to cite United States v. Santana,(18) which it wrongly relied on here, to conclude that a person who is outside when the police arrive cannot acquire Fourth Amendment protection by running inside the building.(19) Instead, the police frequently do not know who is inside or whether that person will destroy evidence if the police do not take preemptive action.

It doesn't seem right to conclude that, in the absence of any information, the police can simply assume that someone who is destructively inclined might be inside and that they can barge right in. Rather, the police must have some objective reason to believe that the person inside may destroy the evidence. Since probable cause that contraband may be found is required for a search warrant, that same probable cause standard would apply here to justify the preemptive warrantless entry. Although the McArthur Court referred to "reasonable suspicion" as the standard to use in imposing "temporary restraints where needed to preserve evidence,"(20) none of the cases cited involved entry into a building, which is generally more tightly restricted.

This approach is consistent with the result, if not all the "curious analysis,(21) of Vale v. Louisiana,(22) which the Supreme Court decided more than 30 years ago. In Vale, police armed with a warrant to arrest the defendant for a bail violation unexpectedly witnessed a narcotics sale outside the residence. They arrested the defendant on his front steps, then entered the house to ascertain who was inside. At that moment, the defendant's mother and brother arrived, and the police searched the house and found narcotics.

Noting that the police were not in hot pursuit of a fleeing felon and that the goods seized "were not in the process of destruction," the Court suppressed the narcotics.(23) The Court did not address the issue of feared destruction of evidence, but a requirement of probable cause that evidence may be destroyed would seem to allay the concerns of the Vale majority.

Returning to McArthur, it is not clear in this case that Charles knew, before being approached by the police, that his wife had told the officers about the drugs. But the Court concluded that, given the facts of the case, the police "reasonably could have concluded" that he knew what their intention was and would "get rid of the drugs fast."(24)

Assuming that this belief could rise to probable cause, the police were right to enter the trailer, either to remove him or to watch him while he remained inside, pending the arrival of the warrant. While the guarding officer would not be able to search, anything he saw in plain view would be admissible as evidence.

If the police lacked probable cause as to destruction, however, they could not create exigent circumstances by asking the resident to consent to an entry and then cry "Destruction of evidence!" to justify entry if he refused. Nor could they shout, "Aha!" if the suspect happened to step outside, and then seal his dwelling.

Rather, having insufficient reason to enter, they would have to go quietly on their way and seek a warrant, which might involve no more than a radio call to a magistrate. However, they could certainly maintain surveillance outside and, if the suspect exited the premises, hold him until the warrant arrived.(25)

Likewise, other exigent-circumstance explanations of why police entered a structure should be weighed under a probable-cause standard. Thus, a police officer who has probable cause to believe that a fleeing suspect has run into a nonabandoned building can enter the building to search for the suspect. If the officer lacks probable cause, he or she must limit the search to outside the building.(26)

Unfortunately, by assuming that Charles McArthur was outside his dwelling, the Court decided a question that had already been unanimously settled by the Segura dictum and failed to resolve the festering issue: When may police act to preserve evidence pending the arrival of a search warrant when they fear that someone inside the building may destroy the evidence? The Court also seemingly decided, without discussion or justification, that if the police can induce a resident to step outside, then they can keep him or her out. But whether they need a certain amount of evidence to use this technique remains unclear.

Notes

(1.) 121 S. Ct. 946 (2001).

(2.) Id. at 949.

(3.) People v. McArthur, 713 N.E.2d 93, 94 (Ill. App. Ct. 1999).

(4.) 121 S. Ct. 946, 948.

(5.) Id. at 950.

(6.) McArthur, 713 N.E.2d 93, 94.

(7.) 468 U.S. 796 (1984).

(8.) McArthur, 121 S. Ct. 946, 951 (quoting Segura, 468 U.S. 796, 814).

(9.) Id. (citing Segura, 468 U.S. 796, 824 n.15) (Stevens, J., dissenting).

(10.) Segura, 468 U.S. 796, 800.

(11.) Id. at 800-01.

(12.) Id. at 798.

(13.) Id. at 799.

(14.) Id. at 800-02.

(15.) McArthur, 713 N.E.2d 93, 96 (quoting WAYNE LAFAVE, SEARCH & SEIZURE [sections] 6.5(c), at 365 (3d ed. 1996)); see Joshua Dressier, A Lesson in Incaution, Overwork, and Fatigue: The Judicial Miscraftsmanship Of Segura v. United States, 26 WM. & MARY L. REV. 375 (1985).

(16.) McArthur, 713 N.E.2d 93, 98.

(17.) 487 U.S. 533 (1988).

(18.) 427 U.S. 38 (1976).

(19.) 121 S. Ct. 946, 952 (citing Santana, 427 U.S. 38, 42, which held that a person who ran inside a house as police arrived with an arrest warrant could be arrested without a search warrant, which is ordinarily required to arrest a person inside a home). See Payton v. New York, 445 U.S. 573 (1980).

(20.) 121 S. Ct. 946, 951.

(21.) LAFAVE, supra note 15, at 340.

(22.) 399 U.S. 30 (1970).

(23.) Id. at 35.

(24.) 121 S. Ct. 946, 950.

(25.) See also Michigan v. Summers, 452 U.S. 692, 705 (1981). In Summers, the search warrant was already there, but this is close enough.

(26.) See Warden v. Hayden, 387 U.S. 294 (1967).

Craig M. Bradley is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail].