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When the case of a Sullivan, Ill., man goes before the U.S. Supreme Court for oral arguments this week the issue at stake is whether police have the power to prevent a person — who is not under arrest or about to be put under arrest — from entering their home while police wait for a search warrant. In its ruling last year in Illinois v. McArthur, the state’s Fourth District Appellate Court said that so-called “impoundment” power did not rest with police and suppressed marijuana and drug paraphernalia taken from the trailer of Charles McArthur. The Illinois appellate ruling set the stage for Wednesday’s arguments, in which attorney Deanne F. Jones will argue on behalf of McArthur, and Illinois Solicitor General Joel D. Bertocchi and Matthew Roberts, an attorney with the U.S. Solicitor General’s office, will argue on behalf of Illinois and the federal government. The federal government filed an amicus curiae brief. “This is a classic confrontation between the interests of law enforcement and individual rights,” said Len Cavise, a professor in criminal law at DePaul University College of Law in Chicago. While there are circumstances when impoundment or seizure would be permissible, the standard law enforcement needs to follow should be probable cause and exigent circumstances, said Jones, of Hughes, Hill & Tunney in Decatur, Ill. “Here (with McArthur’s case) it was such a minor crime and there were no exigent circumstances,” Jones added. “The home is held in high esteem in the Fourth Amendment and in decisions supporting the Fourth Amendment,” Jones continued. “You can’t seize a home without a warrant and if you don’t have a warrant you need probable cause or exigent circumstances.” The case was important for the state to pursue to the high court because it raises important issues about what police can do to preserve evidence, Bertocchi said on Monday. “That applies to all cases both big and small,” he added. Police initially went to McArthur’s trailer home in 1997 to assist his wife Tera in removing her belongings from the home. At that time, Tera McArthur told Sullivan Police Asst. Chief John Love there were drugs inside. After McArthur came out of the trailer to talk with Love and refused to let police inside without a warrant he was only allowed back inside if Love stood in the doorway and watched him to make sure he did not destroy any evidence, the appellate court opinion said. Another officer, meanwhile, had gone to get a search warrant, the opinion said. After the warrant was executed and the drugs found, McArthur was arrested and charged with misdemeanor drug offenses. His argument is that McArthur agreed to the condition that police could stand in the doorway when he entered the trailer, Bertocchi said. “If he could have done without his cigarettes and his phone they would not have gone in,” Bertocchi said. To prepare for her first appearance before the nation’s highest court, Jones went through two moot court panels, one at the Southern Illinois University School of Law and the other at the University of Illinois College of Law. “We did it like a formal argument, where I had 30 minutes and the professor would ask me questions during the argument,” said Jones, a 1991 graduate of the SIU law school. She was fortunate to have on the University of Illinois panel Wayne LaFave, a professor emeritus from the university’s law school who is author of a five-volume treatise titled “Search and Seizure,” Jones said. LaFave’s work was cited in the appellate court’s opinion suppressing the evidence taken from McArthur’s home in that the actions of the police did not fall under “any of the three situations when courts have found it permissible for police to secure a residence from the outside while seeking a search warrant.” Illinois v. McArthur, 713 N.E. 2d93 (Ill. App. Ct. 1999). The three situations identified by LaFave were when a person who has legal authority to enter a home is already in custody, would be subject to arrest if they appeared at the home, or if they consented to remain outside the home. “What’s not entirely clear is whether the Supreme Court will get down to the ultimate issue which is a practice by police called ‘impoundment,’” LaFave said Monday. “The Supreme Court only once before, in a case called Segura, has ever gotten close to deciding that issue, but in Segura they went out on another point.” The Segura case was also cited in the appellate court’s decision and was used by the state as the basis for why the evidence taken from McArthur’s home was taken legally. There, the majority of the court had ruled that “securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents” under the fourth amendment. Segura v. United States, 468 U.S. 796, 806, 82 L. Ed. 2d 599, 609, 104 S. Ct. 3380, 3386 (1984). But, the Illinois appellate court found that McArthur, unlike the defendant in Segura, was not under arrest when police were at his home and that “Love’s entrance into the trailer amounted to both a meaningful interference with defendant’s possessory interests (a seizure) and his privacy interests (a search).” Despite that ruling from the court, Bertocchi believes Segura still applies to how police acted in the McArthur case. “What they did was protect evidence until they could get a warrant,” Bertocchi said. “There is authority (in Segura) to do that provided you don’t enter the premises.” Also filing an amicus brief supporting Illinois was Ohio Asst. Solicitor, Robert C. Maier. The National Association of Criminal Defense Lawyers and the Rutherford Institute, a Charlottesville, Va.-based organization for defending civil rights, filed amicus briefs on behalf of McArthur.

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