Temporary Seizure Pending a Warrant

Temporary Seizure Pending a Warrant

Hot pursuit, emergency aid, and the destruction of evidence all ask when officers may go through the door without a warrant. A quieter question arises when officers already have probable cause to think a home holds contraband, are getting a warrant, and fear that the occupant will destroy the evidence while they wait. Illinois v. McArthur holds that officers may then prevent the occupant from entering the home unaccompanied for a reasonable time, which in that case was about two hours, so long as they are diligently obtaining the warrant and the restraint is limited and tailored to the need to preserve the evidence.¹ The rule is a middle course between two poor options. Doing nothing risks the loss of the evidence, and entering to search runs into the presumption that every warrantless entry into a home is unreasonable.² A temporary restraint answers both problems, because it keeps the evidence from disappearing while the decision to search stays with a neutral magistrate.³

The facts show each limit at work. Tera McArthur asked two officers to accompany her to the trailer she shared with her husband, Charles, so that they could keep the peace while she collected her belongings, and when she came out she told Assistant Chief Love that Charles had drugs inside and that she had seen him slide some under the couch.⁴ Love asked Charles for permission to search, Charles refused, and Love sent Officer Skidis with Tera to get a warrant while telling Charles that he could not reenter the trailer unless an officer accompanied him.⁵ Charles went in two or three times, for cigarettes and to make phone calls, and each time Love stood just inside the door and watched.⁶ The warrant was in hand by about 5 p.m., and the search turned up a marijuana pipe, a one-hitter box, and a small amount of marijuana.⁷ The charges were misdemeanors.⁸

Because the restraint was imposed without a warrant, the Court first asked whether it was unreasonable per se, and it declined to say so. The situation involved a plausible claim of specially pressing law enforcement need, and the restraint was limited in time and scope and avoided significant intrusion into the home itself, so the Court balanced the privacy-related and law enforcement-related concerns instead of applying a flat rule.⁹ It then found the restraint reasonable in light of four circumstances considered in combination.¹⁰

Each question does its own job. Probable cause keeps the restraint from resting on a hunch, and in McArthur the officers had spoken with Tera, could make at least a rough assessment of her reliability, and knew she had seen her husband's behavior with the drugs firsthand.¹¹ The fear of destruction supplies the urgency, and without it the ordinary rule that a magistrate decides first would control. The officers reasonably could have concluded that Charles, seeing that his wife had spoken with police and walked off with one officer while the other stayed to watch the trailer, would suspect an imminent search and get rid of the drugs fast.¹²

The last two questions limit how officers may meet that urgency. The police neither searched the trailer nor arrested Charles, and they kept him only from entering unaccompanied, which left his home and belongings intact until a magistrate found probable cause and issued the warrant.¹³ Warrantless entry and search of the home is the chief evil the Fourth Amendment addresses, so a response that avoids both draws far less objection than an entry would.¹⁴ The time limit follows from the same logic. The need that justifies the restraint lasts only until a magistrate acts, so the restraint cannot outlast the time that diligent officers need to obtain the warrant. Without a diligence requirement, officers holding an occupant out of his home would pay no price for letting the clock run, and a stopgap could harden into a substitute for the warrant.

Duration is therefore measured against diligence and the intrusion involved, and the clock alone does not decide it. The Court contrasted a 90-minute detention of luggage in United States v. Place, held unreasonable in part because the police lacked diligence, with a 29-hour detention of mailed packages in United States v. Van Leeuwen, held reasonable given unavoidable delay in obtaining the warrant and the minimal nature of the intrusion.¹⁵ In Van Leeuwen the officers worked diligently and promptly, and the privacy of the packages' contents was not disturbed until a judge approved the search.¹⁶ That comparison teaches a method, and it provides no number to carry over to a home. Students lose this issue when they memorize two hours as a fixed limit, because the figure in McArthur illustrates a reasonable time on those facts and does not set a deadline.¹⁷

The contrast with Welsh v. Wisconsin is brief but instructive. Welsh holds that all warrantless entries into a home are presumptively unreasonable, that the government must prove sufficient exigent circumstances, and that a minor offense weighs against finding them.¹⁸ The offense in McArthur was also minor, yet the restraint was upheld, because the police did not enter or search and the Court balanced the interests in light of a limited and tailored intrusion.¹⁹ Read together, the decisions show the seriousness of the offense and the intrusiveness of the response being weighed against each other: a response that reaches into the home demands a weighty justification, and a response that leaves the home untouched can rest on a lesser one.

The pair of failures below shows how the rule breaks down when a limit is dropped.

The sequence of questions for an exigency problem generally, covering pursuit, emergency, destruction of evidence, and this limited restraint, is gathered in the Review that follows.