Illinois v. McArthur - Oral Argument

Argument of Joel D. Bertocchi

Chief Justice Rehnquist: We'll hear argument now in Number 99-1132, Illinois v. Charles McArthur.

Mr. Bertocchi.

Mr. Bertocchi: Thank you.

Good morning, Mr. Chief Justice, and may it please the Court:

In this case, a police officer who had probable cause to believe that readily destructible evidence was concealed in Charles McArthur's home secured that home from the outside while his partner went to see the judge to get a warrant.

By doing so, the police officer, Officer Love, prevented what, as it turned out, would have been the certain destruction of that evidence.

He also avoided doing something that this Court has often condemned in its Fourth Amendment cases.

Justice O'Connor: May I stop you there, please, counsel?

As it turns out, and you mentioned, at the end of the day the respondent would have entered the home and destroyed the evidence if he'd had the chance, but the police didn't know that at the time, did they?

Mr. Bertocchi: I don't think they knew it, certainly, Your Honor.

Justice O'Connor: And I think that we have to take the case on the assumption that they didn't know.

Mr. Bertocchi: Correct.

Justice O'Connor: Isn't that right?

Mr. Bertocchi: I agree.

Justice O'Connor: So I don't think we should look at the fact that he said that later in resolving the case.

Mr. Bertocchi: Your Honor, by mentioning that I didn't mean to suggest that the Court should.

I think that demonstrates something about the fact that people can intend to destroy evidence without telegraphing it.

Justice O'Connor: Yes.

Mr. Bertocchi: But I agree that the officers certainly didn't know it.

Mr. McArthur didn't say so.

Justice Kennedy: Well, can we take the case on the assumption that there's a substantial risk that in this context he would have destroyed the evidence?

Mr. Bertocchi: I agree, Your Honor.

I believe that the police believed that, that they were concerned about the risk to evidence, but I can't say that they could read his mind.

Justice Souter: Well, but didn't the evidence that they had before them establish at least exigent circumstances?

Could they have gone in on an exigent circumstances exception?

Mr. Bertocchi: Well, Your Honor, I believe in this case they could have, although I would emphasize again that they never actually went in at all except briefly with...

Justice Souter: No, I realize that, but I mean, in deciding the reasonableness of the... of blocking the individual from going back in, it seems to me we ought to consider that they could have gone in themselves under an exigent circumstances theory, if that is so.

Mr. Bertocchi: I believe that is so, Your Honor, and certainly it demonstrates that the intrusion that we're asking for here is amply justified.

Justice Ginsburg: But then you run up against your opponent's argument that the police themselves created the exigent circumstances, because they told... they told the, later, defendant that his wife had snitched on him, and if he didn't know that, then he wouldn't have any incentive.

Mr. Bertocchi: I understand that argument, Your Honor, and I don't believe it applies in this case for a couple of reasons.

One is that I believe the officers had genuine concern sufficient to allow them to impound, certainly, and perhaps to go in even before they spoke with him.

Mrs. McArthur told the officers that she had just seen Mr. McArthur conceal the marijuana under the couch.

She told them that when she came out into the house, and I believe that that told the officers not only that there was marijuana inside, which provided them with probable cause to search, I think that also demonstrated to them that Mr. McArthur, or at least would give them reasonable grounds to suspect that Mr. McArthur was interested in preventing them from getting access to the evidence and had already at least once translated that idea into action.

Justice Souter: Well, I want to know how fine you're slicing it when you say reasonable cause to believe.

Do you mean probable cause?

Mr. Bertocchi: No, I don't, Your Honor.

Justice Souter: Well, if you don't mean probable cause, then I think your response to Justice Ginsburg is, there were no exigent circumstances sufficient to support an entry but for the police's statement to him that they knew about the drugs and they wanted to go in.

Am I right?

Mr. Bertocchi: I... Your Honor, I... that isn't what I intended to say, I'm sorry.

Justice Souter: Okay.

Now, assume they did not... assume we remove from consideration the fact that they told him that the wife had snitched on him and they would like to search.

Did they have probable cause to make an exigent circumstances search?

Mr. Bertocchi: Your Honor, I don't believe... I do believe that they did.

I don't... I do believe...

Chief Justice Rehnquist: And the reasons are?

Justice Souter: The reasons are?

Mr. Bertocchi: The reasons are, Your Honor, that they... as I indicated, that they had... they were aware that Mr. McArthur, while they were present, and he knew they were present, had already taken action to conceal the evidence from them, and I think it would be reasonable for them to believe that he might take additional action, or decide that that action wasn't sufficient.

Justice Souter: Okay.

Mr. Bertocchi: In addition, Your Honor, I would suggest to the Court that...

Justice Scalia: When you say he knew they were present...

Mr. Bertocchi: Yes, Your Honor.

He... the police had been outside for some time while Mrs. McArthur was moving her items out, and they wouldn't have been very good peacekeepers if they didn't let it be known, or she didn't let it be known that the police were outside while she was moving her items out.

So at the time Mrs. McArthur came out and said all this, the police knew that Mr. McArthur knew they had been outside for some time, that they were in the company of his wife, who was angry at him and might be motivated to snitch on him, and she also told them that he had already taken at least some action to conceal marijuana, the marijuana that was inside, from them.

Justice Ginsburg: Did she indicate how much marijuana, because much is made by McArthur that this was... this is very small stakes.

Mr. Bertocchi: Your Honor, she did not say anything... there is no testimony in the record that she said anything other than that it was marijuana, and that is really one of our central points in response to that argument, is that the officers had no reason to know just what the stakes would be for any number of reasons.

One of them was that.

It is certainly unlikely that if they had asked her Mrs. McArthur could have said 2.3 grams.

At most she might have said, a little, but a little can rise to the level of a felony in Illinois, and even a little little is a jailable crime.

Justice Souter: But in any case she didn't say anything one way or the other about quantity...

Mr. Bertocchi: Correct.

Chief Justice Rehnquist: as far as the record tells us.

Mr. Bertocchi: Correct, Your Honor.

Chief Justice Rehnquist: Is that correct?

Mr. Bertocchi: That is correct.

Your Honors, Officer Love's conduct in this case was restrained and, indeed, specifically calibrated to intrude no more than necessary while giving full effect to the warrant requirement, and we ask that this Court approve that conduct because it will both protect both evidence and privacy.

There are two facts that we believe demonstrate that Officer Love's conduct fell clearly within the limits of reasonable conduct under the Fourth Amendment.

One of them, of course, is that there was no entry necessary in this case, and we believe that that substantially lesser intrusion is very important.

It interfered only with Mr. McArthur's possessory interest in his home, and while those interests are certainly protected by the Fourth Amendment, the... they are not... they do not receive the high level of protection that privacy interests do, particularly where a home is concerned.

Justice Stevens: May I ask if, in your view, the length of time that it takes to get the warrant is relevant at all?

Mr. Bertocchi: I believe it is, Your Honor.

Justice Stevens: And in this case, what was it?

Mr. Bertocchi: Your Honor, I think on this record the most you could say would be 2 hours, but I believe that the more justified conclusion would be about an hour and 15 minutes from the time the impoundment was imposed to the time that the warrant was signed.

Justice Stevens: If it took, say, 8 or 10 hours, you would say that's probably unreasonable?

Mr. Bertocchi: Your Honor, I would say that was a much harder case, but it would depend on the circumstances that caused it to take that long.

Justice Stevens: Yes.

Mr. Bertocchi: I think this is an amount of time that you could almost say was per se reasonable.

I think, in fact, that it was surprisingly brief, in... particularly in light of the fact that this is a small rural jurisdiction with a small police force and...

Justice Stevens: But you would say the length of time would be a relevant consideration?

Mr. Bertocchi: Certainly, Your Honor.

I know the Court has said on many occasions that an intrusion on Fourth Amendment rights can start off okay and become unreasonable by degree.

Justice Stevens: Would you also... what is your position on whether the quantity of drugs is relevant to the inquiry?

I mean, if it was a bomb about to explode you take one view, and an ounce of marijuana you can get a little different reaction intuitively, but do you think legally it should make any difference?

Mr. Bertocchi: Your Honor, I think under Welsh you can't say that it doesn't figure into the Fourth Amendment calculus.

We believe that there was ample justification in this case in light of the quantity of marijuana.

This is a case which the State of Illinois legislature has decided you can go to jail for.

This is a case that the county prosecutor, who is the original jurisdiction prosecutor in the county, has decided was worth a search warrant...

Justice Stevens: If it were different... if, for example... some counties around the country don't prosecute on cases like this, or maybe the quantity would have to be a little smaller.

If they had a policy of not prosecuting minimal amounts of possession of marijuana, then I take it, it would or would not be reasonable to go in?

Mr. Bertocchi: Your Honor, I think if they had a blanket policy that was known to the police officers, then I think they would... you know, before they even got to that question they would doubt, or be sure that they couldn't get the prosecutor to approve the search warrant in the first place.

Justice Kennedy: Could they have arrested this defendant without a warrant, without an arrest warrant...

Mr. Bertocchi: Yes, Your Honor.

Justice Kennedy: based on the information that they had?

Mr. Bertocchi: I believe that they could have.

I believe they had probable cause both to search the house and to arrest Mr. McArthur.

Chief Justice Rehnquist: Mr. Bertocchi, how far did the police have to go geographically to get a warrant in this case?

Mr. Bertocchi: Your Honor, I am not aware of that.

I know that Mr. McArthur lived in Sullivan, and that Sullivan is the county seat of Moultrie County, so they didn't have to leave the town of Sullivan to get to the courthouse.

Justice Scalia: Mr. Bertocchi, I guess your case is easy if you assume, as you do, that they had authority to enter without a warrant on the basis of exigent circumstances, but assuming I don't agree with you on that point, I'm concerned about complicating the criminal law more than is necessary.

You're asking us to establish some standards below the exigent circumstances standard which would dispense with a warrant, and you're saying if you don't actually go into the house we want yet another test that's a little bit less than exigent circumstances.

I'm not sure that human beings are capable of entertaining as many variations and figuring out what is less than exigent circumstances but still enough to justify this.

Why shouldn't we just have one single rule?

It's an exigent circumstances rule.

If there are exigent circumstances, you can either go in the house or exclude the homeowner from going back in himself.

Mr. Bertocchi: Your Honor, I agree that impoundment does present something of a complication, but I don't think it's that serious, and I think that the test is not all that different, because it's a balancing test ultimately, always.

I think that in this case we also distinguish, as does...

Justice Scalia: Well, it's not a balancing test with exigent circumstances.

If there are exigent circumstances you can go in.

You don't have to say, you know, well, is it a really expensive house, or is it a less-expensive house, or, you know, is this person really concerned with his privacy, or is he the kind of guy who leaves his window shades up anyway?

You don't balance anything.

If there are exigent circumstances, you go in.

Mr. Bertocchi: I understand...

Justice Scalia: And when you have that test the courts know how to deal with it.

Why don't we just have a flat rule, if there are exigent circumstances, you can either go in or you can stop him from going in?

Mr. Bertocchi: Well, Your Honor, it's our position...

Justice Scalia: Life is too complicated.

We can't engage in all of these myriad levels of police activity.

Mr. Bertocchi: Your Honor, if the Court were to agree with me that exigent circumstances were... particularized exigent circumstances were present here, sufficient to allow an entry, that would be very satisfactory, because I'm sure that would result in the...

Chief Justice Rehnquist: But the question presented is, is it reasonable under the Fourth Amendment for police officers who have probable cause to believe a residence contains evidence enough to secure the residence from the outside, so your question certainly assumes the existence of probable cause.

Mr. Bertocchi: Yes, Your Honor.

Chief Justice Rehnquist: It doesn't really say anything about exigent circumstances.

Mr. Bertocchi: Your Honor, our position is that no specific or particularized exigent circumstances were required to do what Officer Love did.

Chief Justice Rehnquist: You say probable cause is enough.

Mr. Bertocchi: Probable cause is enough that you don't have to make an entry, yes, Your Honor.

Your Honors, as I was indicating in response to Justice Stevens, the intrusion in this case lasted a surprisingly brief amount of time, but another important aspect of its limitation is that it was always intended only as a step on the way to getting a warrant.

Impoundment is really not capable of analytical separation from getting a search warrant.

It is a step in its execution which is designed to assure that if there is evidence in the house at the time probable cause arises, it will still be there by the time the judge... the officers come back with the warrant if the judge signs it.

Justice Scalia: Suppose that the wife had told the police officers not that he had hidden some contraband under the sofa but, rather, that he had it in his pocket.

Are we going to have to, in the next case, ask whether, although the police could not arrest him without a warrant on the basis of just that probable cause, they could nonetheless prevent him from putting his hand in his pocket or, you know, follow him around and make sure that he doesn't put his hand in his pocket, which is a lesser intrusion than arresting him, arguably a lesser intrusion than stopping him... I mean, is there any end to the number of variations of lesser, lesser, lesser intrusion that we'll be confronted with?

Mr. Bertocchi: Well, Your Honor, in this case I think if... that once he had come outside the house they could have arrested him because they had probable cause to arrest him and then, incident to that, I think they could have reached into his pocket.

So in those situations where there is probable cause to arrest, personal search issues are going to be subsumed in search of the person incident to arrest.

Justice Scalia: You think they didn't need an arrest warrant, they could just have...

Mr. Bertocchi: I believe that when they had this... that... the record demonstrates that Mr. McArthur came out of his house to speak with the officers, and I believe that at that point he was in a public place and could be arrested without a warrant, yes, Your Honor.

Justice Souter: Of course, your theory, I take it, is that he could have been arrested in the house without a warrant because the indication that the police had was that he was possessing drugs inside, but they didn't have particularized knowledge that the amount of drugs was only... only carried the offense to the misdemeanor level, so I take it you would have said he could have gone... they could have gone in and arrested without a warrant.

Mr. Bertocchi: I believe that... I believe that they could have, again based on the exigent...

Justice Souter: Why shouldn't... given the fact that we do have... we do make a distinction between arrest with or without warrant in one's own home, why shouldn't the police have the burden of demonstrating that they had probable cause to believe that the drugs were in a felony quantity before they went in to arrest?

Mr. Bertocchi: Your Honor, I believe that in this instance had they gone in to...

Justice Souter: No, but even apart from this, and just as a general rule, why shouldn't that be the general rule, that the police would have to establish a felony level before they go into a house to arrest without a warrant?

Mr. Bertocchi: Your Honor, I believe that in some cases that might very well be a difficult rule to administer, and I think this is a good example of that, Your Honor.

I don't think Mrs. McArthur would likely have been able to give them, even if they had asked, the detail...

Justice Souter: Well, that's right, and therefore they couldn't have gone in.

It would not be difficult to administer, it would be easier to administer, but you'd lose.

Mr. Bertocchi: Your Honor, I believe that they did have sufficient cause in this case had they needed to enter to effectuate this impoundment, but I don't believe that they needed it to do it in the way that they did.

If there are no other questions I would reserve the remainder of my time, if I could.

Chief Justice Rehnquist: Very well, Mr. Bertocchi.

Mr. Bertocchi: Thank you.

Argument of Matthew D. Roberts

Chief Justice Rehnquist: Mr. Roberts, we'll hear from you.

Mr. Roberts: Thank you, Mr. Chief Justice, and may it please the Court:

For three reasons, police officers who have probable cause to believe that a residence contains incriminating evidence may prevent entry for a reasonable period of time in order to preserve the evidence while they obtain a search warrant.

First, there's a strong law enforcement interest in preserving evidence pending issuance of a warrant.

Second, securing the premises from the outside by preventing entry is a limited and temporary intrusion.

Third, it's less intrusive than other means of preserving evidence, and it promotes fidelity to the Fourth Amendment's preference that searches be authorized by a warrant.

When a residence contains evidence of a crime, there's an inherent danger that the evidence may be damaged or destroyed if people are allowed on the premises, and therefore, unless police have a means to protect the evidence during the time that it takes to obtain a warrant, the search pursuant to the warrant may often be fruitless.

Justice Stevens: Mr. Roberts, do you think all evidence is fungible?

Mr. Roberts: No, all evidence is not fungible, Your Honor, but almost all evidence is capable of alteration or destruction, or damage in some way.

Justice Stevens: Is all evidence that's capable of alteration or destruction fungible?

Mr. Roberts: No.

[Laughter]

All evidence that's capable of alteration or destruction isn't fungible either, but there's a sufficient inherent danger of some kind of damage with... damage or destruction of evidence under the circumstances that the risk would be too great in enough cases to warrant asking for some particularized...

Justice Stevens: Let me make the question a little more precise.

Does the seriousness of the offense weigh into the analysis at all in your view?

Mr. Roberts: Certainly not when all we're talking about is temporarily preventing entry for a limited period of time.

Justice Scalia: Mr. Roberts, you say that, you know, there's a great law enforcement interest in preserving the evidence, but there's also a considerable interest on the part of the individual in going into his own home.

Mr. Roberts: Yes, and...

Justice Scalia: What if he tells the police officer, gee, I have to get back in there, I have something on the stove that's going to burn.

Or, you know, I have a child in there that I have to attend to.

Now, are we going to have to weigh all of those additional factors in this subtle balancing test once we abandon the exigent circumstances rule and ask in each case, well, this isn't just getting back into his home, it's getting back into his home to turn off his computer, or to take care of a child.

We're going to go crazy trying to balance these things all the time.

Why not just stick with the exigent circumstances rule?

Mr. Roberts: Our rule that we're proposing here that has already been reflected in cases involving containers, vehicles, and evidence in plain view, and the Court suggested in dicta it applies to securing residences as well, is easily applied.

The issue is, is there probable cause to believe that the residence contains evidence of a crime, and if there is probable cause to believe that, then there is a consequent...

Justice Scalia: Even if there's a child in there that needs taking care of, right?

Mr. Roberts: Well, the Court's made clear...

Justice Scalia: That's a clear rule, then.

You're going to take that position?

Mr. Roberts: The Court's made clear that any search or seizure, even one that's justified by a warrant, can be rendered unreasonable by the manner in which it's executed, and one factor that you would consider in determining whether the seizure...

Justice Scalia: Well, that's not a manner of executing it.

They're executing it by not letting him go into the house, but you're saying it isn't just the house you have to consider, it's also all these other factors, why he wants to go in, right?

Mr. Roberts: No, Your Honor.

The basic principle would still apply, but the police officers have to act reasonably.

That's, the fundamental principle of the Fourth Amendment is reasonableness, and if under the circumstances reasonableness required some accommodation of the needs that were... that the occupants were impeded from addressing because of the seizure, the police would have to reasonably address that.

If there was a child inside, I think that would create exigent circumstances that would justify them going in to take care of the child if there were some need to do that.

Justice Souter: But in effect you're saying that yes, balancing is going to have to be done in the field, so I think your answer to Justice Scalia is, we don't have just a simple rule that if there's probable cause they can impound.

Your rule is, there's a general rule that if there's probable cause they can impound, but there may be circumstances which vary the permissible application of that rule.

Mr. Roberts: There may be circumstances which require the police to take other actions to address the needs as reasonable, but the fundamental rule remains the same, and I don't think that is different than in any other circumstance, any other kind of...

Justice Scalia: That rule would depend on the facts as they are known to the officer, even... so that so long as the homeowner says, I have a kid in there, even if he doesn't have a kid in there, it would be unreasonable for the police officer to stop him from going in, I assume.

Mr. Roberts: I think that if... if... unless the officer had... knew that there wasn't a kid in there, which in this case he might know because the wife...

Chief Justice Rehnquist: Well, maybe the police officer could go in himself and bring the kid outside.

Mr. Roberts: He could.

He could accompany him inside.

That's what I was trying to say before, Mr. Chief Justice.

If there was a child who was... who needed protection that much that required the respondent to enter, then that would justify the police officer going in in the interest of public safety.

Justice Stevens: What if the child is old enough to destroy the evidence and sees what's happening?

Unidentified Justice: [Laughter]

Justice Stevens: Can the police go in and make the child come out, too?

Mr. Roberts: If the child were outside and wanted to go in and was old enough...

Justice Stevens: No, no, no, the child is inside, and the officer realizes, well, maybe he'll destroy the evidence.

Mr. Roberts: Oh, the officer could ask the child to come out under those circumstances.

Justice Stevens: He could ask him to, but the child says I'm too busy destroying evidence.

Unidentified Justice: [Laughter]

Mr. Roberts: Well then, that would certainly create exigent circumstances that would justify going in to secure the premises from the inside, but this case involves a very different and much more limited situation, where all that was necessary was to prevent entry and that kind of intrusion is extremely more limited, because it's only possessory interest in the premises.

It lasts only long enough to get the judicial determination about whether there's probable cause to search and seize, and it's far less intrusive than the other alternatives.

For instance, if the police officers here had arrested respondent, that would have invaded his personal privacy and his liberty.

Justice Stevens: The other thing I wondered about is, what would have happened... this case arose out of an argument between the husband and wife, as I remember.

What if she changed her mind when she got to the magistrate and decided not to support the probable cause and they never got the warrant, would the seizure then have been unlawful?

Mr. Roberts: The...

Justice Stevens: Does the legality depend on the fact that the warrant was ultimately issued?

Mr. Roberts: The legality depends on the presence of probable cause.

I think at the time that they conducted the seizure they would have had probable cause and the seizure would be legal.

Justice Stevens: Even if the warrant were not issued?

Mr. Roberts: Even if the warrant were not issued.

As I was saying before, the... part of the reason that the intrusion is so small, is limited here, and that this is particularly reasonable, is that the other alternatives such as arresting the occupants, such as a warrantless entry, are more intrusive, involve invasions of privacy.

They're more serious, and by providing an alternative to immediate warrantless entry this external impoundment option actually encourages police officers to seek a warrant before they search.

The Court has therefore recognized a principle that the interest in protecting evidence can temporarily supersede possessory interest in property for the time that it takes to get a warrant in a variety of contexts.

As I noted before, the Court's done it in dictum in situations involving securing premises, but the Court's held that that's true in a variety of cases like container cases, where the Court has held that if the police have probable cause to believe the container holds evidence they can seize the container pending a warrant to search it, and the Court's held that if the police have probable cause to believe that evidence that's in plain view is associated with criminal activity, they can seize it.

The same principle that underlies that, the interest in protecting the evidence, the inherent danger that the evidence may be damaged or destroyed if there isn't an ability to freeze the status quo while the police get a warrant, the fact that the police are getting the warrant here, all point to the fact that it's eminently reasonable for the police to be able to secure the premises from the outside for a temporary time while they obtain a warrant to search.

If there are no further questions...

Argument of Deanne F. Jones

Chief Justice Rehnquist: Thank you, Mr. Roberts.

Ms. Jones, we'll hear from you.

Mr. Jones: Thank you, Mr. Chief Justice, may it please the Court:

The question presented by these facts is, what analysis should this Court employ in determining under what circumstances and by what method the police can seize a home in order to preserve evidence of a crime?

The State of Illinois and the United States of America want this Court to issue a broad rule that it is always all right for police officers to seize a home on the basis of probable cause alone.

This Court should find that such a rule violates the Fourth Amendment for two reasons.

First of all, it does not take into account the high esteem in which this Court's decisions place the home, and it is also not a logical extension of other cases concerning the seizure of property.

Justice O'Connor: Well, it was suggested in Segura, I guess, as a possible rule.

Mr. Jones: Your Honor, in the dicta in Segura there is some suggestion that external seizure of the home would have been justified in Segura's case, and perhaps that is because everyone with a possessory interest in the apartment in Segura was in custody and therefore the police really weren't interfering with anyone's possessory right.

In this case you do have the homeowner present, and his possessory rights in the home are being substantially interfered with, and the Government's test of probable cause only simply does not take in to account the high esteem in which the home is held and the fact that it's very intrusive.

Justice O'Connor: Well, what should the police have done to preserve evidence that they know is at risk?

Mr. Jones: Your Honor, there were two alternatives for the police in this case.

First of all, once Mrs. McArthur told the officers that she saw her husband slide marijuana under the couch, the first thing they could have done is simply left with Mrs. McArthur, went down to the courthouse, and obtained a search warrant.

The second alternative was to...

Justice O'Connor: Well, but they knew of the risk of destruction of the evidence.

My question is, what could they do to preserve the evidence in these circumstances, nothing?

Mr. Jones: No, Your Honor, there is nothing they could do, and the reason I'm suggesting that is, in Welsh v. Wisconsin the officers on that scene were faced with a similar dilemma.

The only way they had to preserve evidence of Mr. Welsh's blood alcohol level is to do what they did, which was to enter the home without a warrant and arrest him before his blood alcohol level went down.

This Court found that because that was a minor offense, the police officers could not do that in order to...

Chief Justice Rehnquist: Well, the offense in Welsh was quite different than the one here.

Here, according to your colleague at any rate, this... the... it could... was grounds for arrest, and also he could have served time in jail.

Mr. Jones: Your Honor, there is a distinction between the offense here and the one in Welsh.

Welsh was a nonjailable offense, that's true.

Here, we have a class C misdemeanor, which is the lowest category of crime.

Chief Justice Rehnquist: Well, is that important, Ms. Jones, to your argument?

I mean, supposing there had been a large stash of heroin.

Would that make this case different?

Mr. Jones: Yes, Your Honor, it would make this case different, for two reasons.

First of all, I'm suggesting you reject the probable cause only test and stick with the probable cause plus exigent circumstances test, and the reason the quantity of the drugs would be important is because that goes to the exigency.

As this Court observed in Welsh v. Wisconsin, the prevention of the destruction of evidence is not an exigent circumstance when you're talking about a minor offense.

Presumably, then, it is when you're talking about a major crime.

Justice Ginsburg: But the police had no way of knowing the quantity at that point.

I think you just told us, and correct me if I'm wrong, that if the crime would be a felony, then what was done here was okay.

Secure the premises pending receipt of a warrant by the police officer.

But if the crime is only a misdemeanor, then, too bad, you have to take the risk that the evidence will be destroyed.

I think that's the line you're drawing.

Mr. Jones: Two responses to that, Your Honor.

First of all, the line that I'm drawing is that the officers have to have probable cause and exigent circumstances.

In this case, it's my position that they had neither, but the line I'm asking the Court to draw again is probable cause and exigent circumstances.

Justice Ginsburg: Well, is it exigent circumstances if it's a felony but not if it's a misdemeanor?

That's what I don't fathom, because I thought from your brief and from what you said before that you were making a distinction between lesser offenses and felonies.

Mr. Jones: I am, Your Honor, that's true, and the reason I make the distinction is again, it's part of that analysis of whether or not the exigent circumstance of destruction of evidence is present.

That's at least what the Welsh decision suggests, that if you're trying to preserve evidence of a minor crime, then the officers are not justified in entering the home to preserve evidence of that crime, so it's a factor of determining whether or not there's an exigent circumstance of destruction of evidence.

Justice Breyer: Why isn't... sorry.

Mr. Jones: Your Honor, if I may, she had a question before that.

You had also asked me about if the officers knew about the quantity of marijuana at the scene.

The officers I'm sure did not know that there were precisely 2.3 grams of marijuana present.

However, the officers could easily have asked Mrs. McArthur about the quantity she saw, and the fact that nobody really seemed to be taking this incident very seriously suggests that the officers knew they weren't talking about...

Justice Ginsburg: Why are they not taking it seriously?

They immediately go off to get a warrant.

Mr. Jones: Your Honor, if they... they didn't ask Mrs. McArthur questions about the quantity.

They didn't ask her questions about whether her husband was dealing drugs.

If they thought they had a serious offense and they thought they had probable cause at the scene they could have placed Mr. McArthur under arrest immediately.

Mr. McArthur evidently...

Chief Justice Rehnquist: Well, I'm surprised you say that no one was taking this seriously when the police went to get a warrant and secured the house.

Mr. Jones: Your Honor, they did go and get a warrant, but what I'm suggesting is, you're not taking about a major crime here where the police felt that they had the immediate need to make an arrest of Mr. McArthur.

Chief Justice Rehnquist: Well, but you know, there's always a great deal of second-guessing in these Fourth Amendment cases.

If the police do A, they should have done B, and if they do B, they should have done A.

So I think you have to base your case on the infirmities in what the police actually did.

Mr. Jones: Yes, Your...

Justice O'Connor: Wouldn't an arrest have been more intrusive?

Mr. Jones: Your Honor...

Justice O'Connor: I would have thought so.

I would have thought that the police were acting in a restrained fashion by getting a search warrant, finding out what they had, and then taking action.

An immediate arrest would have I think been more of a personal intrusion.

Mr. Jones: Your Honor, again I'm suggesting that because the officers did not have probable cause at the scene they could not arrest...

Justice O'Connor: Well, I don't think I agree with that.

They had been told that he had marijuana in his possession and I don't know what-all, and that's probable cause, isn't it, to suspect that he was in possession of marijuana?

Mr. Jones: Your Honor, I respectfully disagree for two reasons.

First of all, Mr.... or, excuse me, Officer Love did not ask Mrs. McArthur that very important question of whether she was familiar with what marijuana looked like.

Under Illinois law, when you gather information from an informant about the existence of contraband, Illinois law generally requires that you have some indication...

Justice O'Connor: Well, wasn't a warrant obtained from a magistrate here?

Mr. Jones: Your Honor, it was, and if you...

Justice O'Connor: And was it obtained without probable cause?

Mr. Jones: No.

Your Honor, there was probable cause for the search warrant, and if you compare the search warrant application and the affidavit submitted... you'll find those in the joint appendix, I believe beginning on page 5.

If you look at the application for a search warrant and the affidavits, there's a lot of information contained in those affidavits that were not... that was not given to Officer Love at the scene.

For example, in the application for a search warrant the State's Attorney thinks it's important enough to put in there that Mrs. McArthur is familiar with the appearance of marijuana.

The State's Attorney also includes in there that Mrs. McArthur has seen marijuana on the presence... or on the premises several times.

He has her put in the affidavit that she has seen her husband use marijuana on several occasions.

None of that information was given to Officer Love at the scene.

All Officer Love had at the scene was a woman who Officer Love admits was predisposed into getting her husband into trouble tell him as she's leaving, oh, by the way, I just saw him slide some dope under the couch.

Justice Breyer: All right.

Suppose... is it... all right, the wife says, I... you know, she lives in the trailer with her husband, and the wife says, he hides dope under the couch, okay?

And he's... there's some there.

Mr. Jones: I'm sorry.

Justice Breyer: She... the wife says, who lives in the trailer with the husband, that her husband has put pot under the couch.

Mr. Jones: Mm-hmm.

Justice Breyer: That's what happened.

Mr. Jones: Yes.

Justice Breyer: Okay.

Now, why wouldn't the officer think that if I say goodbye, I'm going off to get a search warrant, the husband would take the dope and flush it down the toilet.

That's what I would think.

I mean, why wouldn't he think that?

Mr. Jones: Your Honor, in this case there were...

Justice Breyer: In fact, if he's intelligent, that's what the man would have done.

Mr. Jones: Well, Your Honor, from the record, what we know what Mr. McArthur did is when the police arrived on the scene, he didn't flush the marijuana.

Justice Breyer: But he hadn't been let into the house, right?

He hadn't had time, or had he had time?

Mr. Jones: The officers had not been let into the house, but they were certainly outside, and Mr. McArthur was aware of their presence, yet he didn't take any steps to destroy the evidence.

He simply hid it under his couch.

Justice Breyer: All right.

I'm just saying, is there any reason why the police wouldn't think, if he gets back in the house, he will go take the marijuana and put it down the toilet?

Is there anything here that would make that an unreasonable thing to think?

Mr. Jones: Your Honor, it may be a reasonable thing to think, but that certainly does not then give the police the power to take the next step, which is to either seize the home or make a warrantless arrest.

Justice Breyer: Why isn't that... and this is now a legal question.

I was trying to... why isn't that an exigent circumstance that would give the policeman the right to go in and preserve the evidence?

Mr. Jones: Your Honor, the reason why it's not is...

Justice Breyer: Because?

Mr. Jones: this Court's holding in Vale v. Louisiana suggests that evidence has to be in the process of destruction before it's considered to be an exigent circumstance permitting the officer to make a warrantless entry inside.

Justice Souter: You mean, they've got to hear the sound of the water flushing, or something like that...

Unidentified Justice: [Laughter]

Justice Souter: before they can go in?

Mr. Jones: No, Your Honor.

I'm not...

Justice Souter: No, but seriously, I mean, what... how could that standard ever be satisfied in the case Justice Breyer gave you, except on... you know, some silly assumption like that?

Mr. Jones: Your Honor, I agree that the evidence having to be in the process of destruction is a high standard for the police to meet, and that's why lower courts have taken the Vale case and have reduced that somewhat to require a fear that the evidence is in imminent danger of destruction.

Justice Souter: All right, why... going back to his question, why wasn't there a basis for... to conclude that it was in imminent risk of destruction?

Mr. Jones: I'm sorry, I'd like to clarify.

Are you asking in my particular case, or are you asking in general?

Justice Souter: Yes, your particular... well, I'm talking about Justice Breyer's hypo, which I think responded to your case.

Mr. Jones: First of all, the reason why this Court should continue with that standard that the evidence has to be in imminent danger of destruction...

Justice Souter: No, but assuming we... assuming that is the standard, why isn't it satisfied in the hypothetical that you gave, which I think is descriptive of what we know about this case?

Mr. Jones: Your Honor, the reason the officers should not have considered the evidence to be in imminent danger of destruction is, again, Mr. McArthur took no steps with regard to that...

Justice Souter: No, but you're saying that... and I'm not quite sure why, but you're saying we know for a fact that at a given moment he had not taken a step to destroy the evidence, but the hypothetical is, and I think the facts of the... in the record support the hypothetical, that the wife from whom he is estranged and who has an obviously rocky relationship with him, has just been in the trailer, has seen the drugs, is now outside talking to police officers.

Isn't a person of any intelligence going to say, she is very likely to tell them what she saw, I'd better get rid of the drugs?

The question is not whether at any given moment he had actually started flushing them away.

The question is whether there was probable cause to believe that he would do that, and why isn't there, or why wasn't there in this case?

Mr. Jones: Your Honor, first of all... I believe this is in the joint appendix, and I'm sorry I don't remember the page number for this, but Officer Love or Mr. McArthur, one of them was asked the question whether or not Mrs. McArthur saw him conceal the marijuana, and nobody knew the answer to that, so first of all maybe Mr. McArthur...

Justice Souter: Well, she had come out and said, there are drugs under the sofa, after having been in the trailer extracting personal possessions.

Isn't it reasonable to assume, to infer that she had seen them?

She'd just been there.

Mr. Jones: Your Honor, I would disagree that it's reasonable to infer that she saw them.

Justice Souter: All right.

So your claim is there was no probable cause.

Mr. Jones: Your Honor, I'm claiming there was no probable cause and no exigent circumstances, and a probable...

Justice Ginsburg: I thought you had conceded that there was probable cause to get the warrant.

Mr. Jones: There was probable cause to get the warrant because the information that was given to Judge Flannel was different than the information that Officer Love had at the time that he made the determination to seize the home.

Chief Justice Rehnquist: All right.

Justice Scalia: Now what I'm trying to...

Well, could I come to the question presented here, which... I had thought, frankly, that the question presented posed neither the issue of exigent circumstances, nor the issue of probable cause.

I mean, it seems to me this is not a hard case if there were exigent circumstances.

If you... if the police officer... you would acknowledge, I think, that if he could have gone into the house, he could do the lesser thing of stopping your client from going into the house.

Mr. Jones: Your Honor, yes, if probable cause and exigent circumstances...

Justice Scalia: Right.

Mr. Jones: existed, yes.

Justice Scalia: So I mean, there's no reason to take this case if there were exigent circumstances.

And as for probable cause, the way I read the question presented, is it reasonable under the Fourth Amendment for police officers who have probable cause to believe that a residence contains evidence that could readily be destroyed, to secure the residence by preventing its occupant and others from entering unaccompanied.

I thought that... you're not conceding the existence of probable cause to believe that a residence contained evidence that could readily be destroyed?

Mr. Jones: Your Honor, I'm not conceding that probable cause existed in this case, and I'm also asserting that a rule that permits external seizure of the home on probable cause only does not take into account, first of all, this Court's holdings with respect to the home and second of all, does not really weigh, or doesn't fairly balance the State's interest in prosecuting the particular kind of issue.

Chief Justice Rehnquist: Did you challenge the question presented in your brief in opposition?

Mr. Jones: Your Honor, we... we're still sticking with the question presented, whether this is reasonable under the Fourth Amendment.

Chief Justice Rehnquist: Yes, and... but it is... is it reasonable under the... for police officers who have probable cause, so that is the premise of the question presented, that the police officers have probable cause.

Unless you disputed that, you're not in a position now to challenge probable cause.

Mr. Jones: Your Honor, I understand what the question presented is and, as a general rule, we disagree that that ought to be the rule that applies in all seizure-of-the-home cases.

The Court, or excuse me, the State of Illinois and the United States of America is asking this Court to permit seizures of the home on probable cause only, and it is our contention that this Court should not adopt such a rule.

Chief Justice Rehnquist: Well now, that is obviously an argument you're very much entitled to make, but I think you've been making a different one, that there was no probable cause, and I think it's questionable whether you're entitled to make that argument here.

Mr. Jones: Your Honor, I guess what I'm doing is, I'm suggesting that no matter which rule you adopt, the one advocated by the State or the one that we're presenting, when you apply that rule to our case in determining whether or not the Illinois Appellate Court should be affirmed, I'm suggesting to you reasons that, no matter which rule you adopt, the decision of the Illinois court...

Chief Justice Rehnquist: Well, you're basically arguing, then, if you say there's no probable... that the decision should be affirmed on an alternate ground?

Mr. Jones: Yes, Your Honor, I'm...

Justice O'Connor: Well, Ms. Jones, how can you do that?

The Appellate Court of Illinois found that the police had probable cause here.

You didn't take a cross-appeal from that.

In fact, at page 7 of your...

I would assume we would accept that finding.

I don't know why you're here arguing there was no probable cause at the scene.

That seems to be both contrary to what the Illinois, Appellate Court of Illinois found, and contrary to the assumption made in the question on certiorari.

Justice Stevens: In fact, in your brief in opposition you said, although probable cause existed, and the police, so forth, so on.

You did, I think in your brief in opposition, you assumed there was probable cause.

Mr. Jones: Your Honor, again, we're not contesting probable cause to issue the search warrant, and that's true the Illinois Appellate Court...

Chief Justice Rehnquist: Well, but the question presented says, is it reasonable under the Fourth Amendment for a police officer who had probable cause to believe a... this is probable cause for the police officers to act.

Mr. Jones: Yes.

Chief Justice Rehnquist: So the fact you say you concede there's probable cause to issue the search warrant doesn't really get to that point, does it?

Mr. Jones: No, Your Honor.

You have to look at the probable cause at the time that the home was seized.

Chief Justice Rehnquist: Precisely, and that's what the question raises, and that's what the lower courts found against you.

That's what you've conceded in your brief in opposition.

Mr. Jones: Your Honor, in our brief in opposition we do state that the Illinois Appellate Court was incorrect in finding that we never contested probable cause.

Justice Scalia: We're talking about your brief in opposition to the petition, not the brief in opposition on the merits, and you do say on page 7 of your brief in opposition to the petition, and that's the basis on which we decide whether or not to accept these petitions, what is the issue presented.

We don't... we wouldn't have taken this case to decide whether in... on these particular facts there was probable cause or not.

That's not the kind of thing we normally do here.

But you had said in your opposition, although probable cause existed, and the police entry was made peaceably.

You're obviously talking about before the warrant was issued, and I took that to mean accepting the question presented, is it reasonable for police officers who have probable cause to believe.

If you were going to contest that, you should have made that clear when you opposed the petition.

Mr. Jones: Your Honor, again, let me state that I do accept the question presented as it is, and it's our argument that this Court should not adopt a rule that permits a seizure of the home on probable cause alone.

Justice Breyer: All right...

Can you tell me this... out of a very... say, just a person who knew nothing about the law approaches this and says, the wife says there's... he put some pot under the sofa.

The policeman then goes to the door and says, did you put pot under the sofa?

He says, no.

Okay?

Off to get a search warrant.

If I were a policeman I would think, he's going to flush that right down the toilet.

That's where we left off, right?

Mr. Jones: Okay.

Justice Breyer: Okay.

Now, I would think that instead of going into the house, which I'm not sure why he couldn't have done it, he says, look, I'll just keep you outside the house.

That way I don't have to go into the house.

I would think he might have gotten a Fourth Amendment medal, instead of Fourth Amendment criticism, because what he's doing is, he's trying to do the least restrictive thing possible consistent with the evidence being preserved.

Now, why isn't what he did a good thing rather than a bad thing from a Fourth Amendment point of view, and what is the case that makes it impossible for him to do that thing?

Mr. Jones: Your Honor, first of all, if you adopt that rule, then you're agreeing with the State and the United States of America that probable...

Justice Breyer: I haven't said what a rule was.

I just wanted to say, the common sense of it seeming to be that he should keep the person outside rather than go in the house, and the only alternative being that you have to let these people who have marijuana in violation of the law destroy the evidence.

Those seem to me to be the two alternatives.

Mr. Jones: Your Honor, if he's keeping the person outside of the home because he believes it contains marijuana and he's concerned that the marijuana is going to be destroyed...

Justice Breyer: Right.

Mr. Jones: then he's making the seizure on probable cause and exigent circumstances, and that's the test that we want this Court to adopt with respect to seizures of the home, and...

Justice Breyer: I don't understand.

I'm saying why exactly can't he just keep the person outside?

I would say from a Fourth Amendment point of view you'd say yes, he can keep the person outside because it's the least restrictive way to preserve the evidence.

The only alternative is to let him preserve the evidence.

Now, the thing that would be wrong with that hypothetical rule is what?

I'm not saying I adopt it.

I just want to get what's the objection to it.

Mr. Jones: Your Honor, if there's probable cause and exigent circumstances, there's nothing wrong with that, and also what the Court should keep in mind is external seizure of the home may not always be...

Justice Breyer: All right, so you say there's nothing wrong with my rule.

Now, you must think there's something wrong with it, because you want to come out the other way.

Now, one thing you'd say was wrong with it was because he didn't have probable cause.

We've discussed that enough.

The second thing you think is wrong with it is because the circumstances don't justify it.

You use this word exigent, but the reason why they don't justify it, what he's got before him is, the wife's told him there's pot under the sofa, the man lives in a trailer, he's told the man he's looking for the pot, and his knowledge of human nature.

All right.

Those are the things he has before him.

Now, why isn't that enough?

Mr. Jones: If you're asking me why that isn't exigent circumstances in this particular case...

Justice Breyer: Asking you why that isn't enough to justify keeping the man outside the trailer so he won't destroy the evidence.

That's my question.

Mr. Jones: Probable cause and exigent circumstances would be sufficient to seize a home.

What I'm arguing is, that's the rule we want you to adopt, probable cause and exigent circumstances.

Now, when that's specifically applied to our case, the reason there are no exigent circumstances here are twofold.

One, Officer Love is the person that created the exigency of the destruction of evidence, and several lower courts have held that when police officers create the exigency of destruction of evidence, they cannot then use that exigency to turn around and enter a person's home without a warrant in order to preserve that evidence.

Here, Officer Love admitted...

Justice Ginsburg: May I stop you at that point, because I think you're telling the police, don't be candid with the people who you suspect about what's going on.

It seems to me here the officers did everything by the book.

They asked him whether he had contraband.

When he said no they said, we're going off to get a warrant, and it seems what you're saying right now is that the police would have been in a better position vis-a-vis the Fourth Amendment if they had not told him what's up.

Mr. Jones: That's correct, Your Honor, I am suggesting that.

Several lower courts, including the Seventh Circuit in United States v. Roselli, have held that when it is reasonable or it is foreseeable that evidence will be destroyed if you ask for permission to search, if you go ahead and take that step and ask for consent and it's denied, you can't then turn around and use that exigency to enter the home without a warrant, because the police have created the exigency.

Here, if you look on page 20 of the joint appendix, Officer Love testifies that at the time Mrs. McArthur told him that Mr. McArthur hid marijuana under the couch, Mr.... or Mr. McArthur was still free to come and go from his home.

However, once Officer Love asks Mr. McArthur for permission to search and is denied, from that point on, Mr. McArthur can't go in because now Officer Love is concerned that the evidence is about to be destroyed.

Justice Scalia: I suppose we could posit a situation in which officers think that a really big drug ring is cutting heroin in a particular apartment, and you certainly wouldn't expect them to knock on the door and say, you know, are you guys cutting heroin in there, do you mind if we come in and look, and they say no, we don't want you to come in and look.

Whereupon, they burst in on the basis of exigent circumstances.

I suppose we wouldn't allow that, would we, so you don't have to be frank with the criminal.

It's sometimes a good idea not to be frank with the criminal.

Mr. Jones: Your Honor, if you know that there's an apartment where people are cutting drugs, then the step that the officers should take in that hypothetical...

Justice Scalia: Is get a warrant.

Mr. Jones: they should have went and gotten a warrant.

Justice Scalia: I agree.

Justice Souter: Okay, but the officer... let me change the hypothetical slightly which I think is... in a way that I think is also supported by the record.

Consider only these facts.

They... the police are outside the trailer.

They are in plain view, so it's reasonable to suppose that he inside the trailer, he knows they're there.

The wife goes in.

The wife comes out and says to the police, there's marijuana under the sofa.

He sees the wife talking to the police.

Don't the police at that point have exigent circumstances to believe that he will destroy the evidence?

Mr. Jones: No.

Justice Souter: Wouldn't any sensible person destroy the evidence?

I mean, wouldn't he reasonably say, she has just been in here, she has seen the drugs under the sofa, she's talking to the cops, she hates my guts, she is probably going to tell the cops what she saw in here, I'd better get rid of it?

Isn't that a reasonable thought process for someone in his position?

Mr. Jones: Your Honor, the problem with having that be the standard to determine the exigent circumstance of the destruction of evidence is that you could say that in any case where someone has evidence of a crime inside of their home.

I believe Justice Stevens...

Justice Souter: No, you can't say that.

What makes this exigent is the confluence at a particular point in time in which the... it isn't merely a case in which he has drugs, he knows somebody knows that he has drugs, he knows that maybe that somebody may go to the police.

It's all happening in front of him at that time.

He has the drugs, the person who's going to snitch on him has just seen the drugs, he can see the person outside his trailer talking to the police.

It is sort of the temporal unity of all of this that gives it the exigency, and why doesn't... that's my argument.

Why doesn't it give a sufficient exigency?

Mr. Jones: Your Honor, two reasons why it wouldn't give a sufficient exigency.

First of all, the police were out at the McArthurs for a while and again, Mrs. McArthur was coming and going out of the trailer this whole time the police were there.

Evidently Mr. McArthur, from whatever he could gather from what was occurring there, wasn't concerned enough that his possession of marijuana was going to be reported that...

Justice Souter: No, but you're trying to answer the hypothetical by adding facts about something that was going on in the trailer that the police could not know, and if the police didn't know it, it doesn't get into the analysis.

I don't see how it affects the fact that they could infer an exigency.

I guess your time is up.

Chief Justice Rehnquist: Thank you, Ms. Jones.

Mr. Jones: Thank you.

Rebuttal of Joel D. Bertocchi

Chief Justice Rehnquist: Mr. Bertocchi, you have 4 minutes remaining.

Mr. Bertocchi: Thank you, Your Honor.

Justice Scalia: Mr. Bertocchi, I would not normally intrude upon your time, but you know, I've just criticized or discussed with Ms. Jones whether she wasn't altering the question presented.

I have the same question for you.

I had frankly thought that this case involved neither the question about whether there was probable cause, nor the question about whether there were exigent circumstances.

If there were exigent circumstances so the policeman could have gone in, this is an easy case.

But you come up and argue exigent circumstances.

It was not argued in your petition for certiorari.

It was not contained in the question presented for review in your petition for certiorari, which is, by the way, different from the question that you show in your blue brief.

What are we talking about here?

All of a sudden I'm discussing a case that bears no resemblance to the case that I thought we were going to hear.

Mr. Bertocchi: Your Honor, I believe when I was addressing the question of exigent circumstances that I was doing so in response to specific questions about the facts of this case, and it is our position that if the Court were to determine that particularized exigent circumstances were necessary, then they were present if the Court wanted to ask that.

We do stand behind the question presented.

We do believe that the officer had...

Justice Scalia: Even without exigent circumstances you think that he could have made the exclusion from the house?

Mr. Bertocchi: Yes, I believe that, Your Honor.

That is our position, and if I may speak up for the question presented and for the rule it proposes, I would submit that that is not going to be a difficult rule to apply, because it will only require police officers to know two things, 1) that they have probable cause to search, and 2) the character of the evidence, and if they don't know that, then they shouldn't be looking for a warrant, and if they shouldn't be looking for a warrant, they would have no basis and no need to impound.

Thank you, Your Honors.

Chief Justice Rehnquist: Thank you, Mr. Bertocchi.

The case is submitted.