Debating Police Searches

Police can briefly bar suspects from their own homes if they fear the suspects would destroy criminal evidence inside, the Supreme Court ruled Tuesday.

Charles McArthur admitted that given the chance, he would have flushed his marijuana stash down the toilet before police could get a search warrant.

The court voted 8-1 that police were within their rights to hold McArthur outside the house for about two hours while they sought the warrant. The ruling overturned a state appellate court ruling that the seizure violated McArthur's Fourth Amendment protections against unreasonable search and seizure.

Police "imposed a restraint that was both limited and tailored reasonably to secure law enforcement needs while protecting privacy interests," Justice Stephen J. Breyer wrote for the majority. "In our view, the restraint met the Fourth Amendment demands."

The case was among three decided Tuesday, the court's first day back after a four-week break. The court also refused to revive a case alleging former independent counsel Kenneth Starr had conflicts of interest in the Whitewater probe, and that he abused his office by publicly urging then-President Clinton's impeachment.

Connecticut lawyer and frequent Starr critic Francis Mandanici sought an investigation of Starr's handling of various probes involving Clinton. A lower court judge had said he found Mandanici's claims baseless.

In an unrelated but similar case, justices joined a spirited debate over whether law enforcement officials violated an Oregon man's constitutional rights when they used a heat-sensing device to find he was growing marijuana in his home.

At issue is whether narcotics agents violated a constitutional ban on unreasonable searches when they trained a thermal imaging device on Danny Lee Kyllo's house — without a search warrant.

Kyllo's attorney, Kenneth Lerner, said the home should be a refuge, where people should be free to let down their guard without fearing the government could be unreasonably looking over their shoulder.

"Why don't your reasonable expectations of privacy include technology? ... You know there are such things as thermal imagers," Justice Antonin Scalia asked. "Why do we have to assume we live in a world without technology?"

"The burden is really improperly placed on the citizen to figure out what technology the government may come up with," Lerner replied.

The government argues that law enforcement officials were within constitutional limitations when they utilized the scan, which sensed heat patterns emanating from Kyllo's home indicative of lights used to grow marijuana. They used the images — along with a tip from an informant and electricity records — to obtan a search warrant of his Florence, Ore., home.

"If the thermal imager functioned like an X-ray machine ... then we don't dispute that it would be a search," Deputy Solicitor General Michael Dreeben said. "We are not learning what activities are going on or where they are going on in that house."

But Justice Steven Breyer seemed skeptical. He said that bird watchers carry binoculars and Boy Scouts have flashlights, which improve human senses, but "who has a heat thermal device? Nobody, except a few."

The McArthur case began four years ago in Sullivan, Ill., when McArthur's estranged wife arranged for police to wait outside the couple's trailer while she moved out. As she left she told the officers she had just seen her husband hide marijuana under a couch.

An officer knocked on the door, told McArthur about the accusation and requested permission to search. McArthur came outside, denied he had drugs inside but refused to allow police inside without a warrant.

All involved described the two-hour outdoor wait as cordial and civilized, and McArthur was allowed chaperoned visits inside to use the phone and fetch his cigarettes.

Justice John Paul Stevens was the lone dissent. He said the tiny amount of drugs found in McArthur's home make the case a poor vehicle for such an important constitutional test. He was charged with the misdemeanor charge of possessing less than 2.5 grams of marijuana and drug paraphernalia.

Lower courts, Stevens wrote "placed a higher value on the sanctity of the ordinary citizen's home than on the prosecution of this petty offense.

"They correctly viewed that interest — whether the home be a humble cottage, a secondhand trailer or a stately mansion — as one meriting the most serious constitutional protection."

Stevens argued the court should not have tried to decide the case at all, but if pressed he would have upheld the Illinois courts. In his dissent, Stevens noted that the offense carries only a maximum jail term of 30 days, and is "by no means a law enforcement priority in the state of Illinois."