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Officers are called to assist a woman in gathering her belongings from her residence after she and her husband were involved in a domestic disturbance earlier in the week. The officers respond to keep the peace between the husband and wife. As the woman enters the house to gather her things, the officers wait outside. The husband was present but knows not to confront his wife.
Apparently still upset with her husband, the woman tells the officers as she exits the residence that they might want to check for drugs inside, because she saw her husband slide some drugs under the couch. One of the officers knocks on the door and asks for permission to search the residence. The husband denies access. The second officer leaves with the wife to obtain a search warrant for the residence.
The first officer tells the husband, who’s standing on the front porch by now, that he’s not permitted to re-enter the house unless an officer accompanies him. Two hours later, the second officer returns with a warrant. A search is conducted and officers locate a marijuana pipe, a “one-hitter” box and a small amount of marijuana. Officers arrest the husband.
Question: Does the Fourth Amendment prohibit the kind of temporary seizure described in this scenario? According to the U.S. Supreme Court, the answer is no.
The McArthur Factors
These facts formed the basis of the Supreme Court’s decision in Illinois v. McArthur.1 In determining the reasonableness of the officers’ actions, the court considered four factors in combination. First, it found that police had probable cause to believe that the residence contained evidence of a crime and contraband, specifically, unlawful drugs. Second, the police had good reason to fear that, unless restrained, the husband would destroy the drugs prior to the officers obtaining a warrant.
Third, the police made reasonable efforts to balance their law enforcement needs with the demands of personal privacy. Notably, officers didn’t enter the residence nor did they arrest the husband before the warrant was acquired. Instead, the officers imposed a significantly less restrictive restraint, preventing the husband from re-entering the house unaccompanied.
The court’s rationale in keeping a person from entering his home was justified by the fact that such temporary detentions are typical whenever police officers stop a person in the street. Further, such detentions are considerably less intrusive than police entry into the home itself for the purpose of conducting warrantless searches or arrests. Indeed, the Supreme Court previously reiterated the importance of the sanctity of a person’s home in Payton v. New York.2
Fourth, the officers imposed this restraint for a limited period of time—in this case—two hours. According to the court, “the time period was no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant.”3
Taking all of the factors into consideration, the court found that the brief seizure of the residence and the husband’s prohibited unaccompanied re-entry permissible.
No doubt, the facts in McArthur are easy to contend with. But what happens when a homeowner isn’t permitted to enter his home for 12 hours? Or 24 hours? Does the seizure of the home, despite the fact that there’s probable cause to do so, then become unreasonable? The answer: It may.
United States v. Cha
Recently, the Ninth Circuit Court of Appeals addressed the issue of a warrantless seizure of a premise for more than 26 hours. In United States v. Cha4, Guam police officers were called to a local karaoke bar to investigate a report that Ms. Cha, one of the owners of the bar, had possession of the complainant’s passport and was refusing to return it. The female complainant also informed the officers that Ms. Cha was also holding her two cousins inside the business against their will.
Officers entered the business to look for the two women. One of the women was waiting on tables. After locating several numbered doors in the back of the restaurant, the officers knocked on one of the doors. The second woman emerged looking disheveled, and a man stood hiding behind the door with his pants unzipped, unbuttoned and unbuckled. The two women reported to the officers that they were being prostituted against their will. They reported that Ms. Cha kept their passports and refused to feed them if they refused to have sex with a customer.
The officers ordered Ms. Cha to close the business early. Mr. Cha was located inside the residence, which is connected to the bar, and forced to come outside. The Chas were asked to come to the police department. They complied. It was 1 a.m. on Sunday.
Ms. Cha was arrested at 6 a.m. Sunday. Mr. Cha was free to leave. At 8 a.m. he returned home only to find an officer standing guard outside the residence. Mr. Cha had been told that the house had been detained since midnight and that no one would be permitted to enter the residence. At 2:30 p.m., Mr. Cha’s lawyer arrived and advised the officers that Mr. Cha was a diabetic and that he needed his insulin and glucose monitor, which was located inside the residence. The officer refused to allow Mr. Cha to re-enter the house until four hours later. At 7 p.m., Mr. Cha was able to retrieve his medicine but was told he needed to remain outside.
Earlier that Sunday morning, another officer had been called to report for duty for the purpose of completing the warrant application for the search of the residence. He was briefed on the incident at noon. However, he didn’t begin the actual work on the application until 6:30 p.m. that day.
The record reveals that the officer “urgently” worked from 6:30 to 9:15 p.m. to finish the application because of a Guam ordinance that there was a presumption against searches conducted after 10 p.m. When he realized that he couldn’t meet the 10 p.m. deadline, the officer continued to work on the application until 4 a.m. The officer returned to work at 7:50 a.m. However, he was unable to locate a magistrate until 10:25 a.m. Monday.
Despite having the warrant, the officer failed to contact Mr. Cha until 1:15 p.m., when he told him the search would be conducted at 2 p.m., the same time as Ms. Cha’s arraignment.
The search was conducted and concluded at 1 a.m. on Tuesday. At that time, Mr. Cha was permitted to re-enter his house. An arrest warrant was issued for Mr. Cha a few weeks later, and he was arrested. The Chas were charged with federal crimes of conspiracy, sex trafficking and coercion, and enticement for the purpose of prostitution.
At their pretrial hearing, the Chas moved to suppress the evidence seized arguing that the warrantless seizure of their residence was unconstitutionally long. The district court granted their motion and the evidence was suppressed. The government appealed.
It’s undisputed that the officers had probable cause and that the officers were permitted to seize the restaurant and residence for a reasonable time while they obtained a search warrant. However, the appellate court noted that “a seizure reasonable at its inception … may become unreasonable as a result of its duration or for other reasons.”5 Recognizing that the Supreme Court and the Ninth Circuit haven’t identified when a warrantless seizure becomes unconstitutionally long, the appellate court found that the seizure of the premises for 26.5 hours in this case was unconstitutionally long.
Relying on the four factors enunciated in McArthur, the court found that because the officers had probable cause, the first factor favored the government. The court also found, without any discussion, that the government didn’t have good reason to fear that Mr. Cha would destroy evidence. Therefore, the second factor favored the Chas.
In discussing the third factor, the court found that the officers did not make “reasonable efforts to reconcile their law
enforcement needs with the demands of personal privacy.”6 In McArthur, the Supreme Court concluded that this factor weighed against the defendant because the officers allowed him to enter the home accompanied by an officer whenever he wanted. However, in Mr. Cha’s case, he was denied entry into his home even with police accompaniment for 11 hours after he sought permission to enter and for more than four hours after he informed the police he needed his insulin. As such, the third factor weighed in favor of the Chas.
The fourth factor also weighed in the Chas’ favor because the duration of the seizure was much longer than the McArthur seizure—26.5 hours vs. 2 hours. Although the government asserts that the officers “were extraordinarily diligent and worked tirelessly around the clock in their pursuit of a search warrant,”7 this factor asks for the timeframe that was reasonably necessary for the police, acting with due diligence, to obtain the search warrant.8
The appellate court found that even if the officers were truly diligent and were meticulous in drafting the warrant application, 26.5 hours was simply too long. Indeed, the magistrate judge who authored the recommendation to the district court in this case chastised the officers asserting that officers on Guam know that when there is an urgency to obtain a search warrant, a neutral magistrate can be located at any hour to approve a warrant application.
The Ninth Circuit Court of Appeals held that the 26.5-hour seizure of the residence while a warrant was obtained was unconstitutional as its duration was too long.
This case is important because it stresses that a seizure that’s constitutional in its origin can be unconstitutional if the seizure becomes excessive in duration. Although the court found 26.5 hours to be unreasonable, it didn’t establish a bright-line rule that all detentions or seizures lasting 26.5 hours are unreasonable and, therefore, unconstitutional. Each case determining reasonableness under the Fourth Amendment should be evaluated under the facts and circumstances of that particular case.
1. 531 U.S. 326 (2001).
2. 445 U.S. 573, 585 (1980) (“[T]he chief evil against which the . . . Fourth Amendment is directed” is warrantless entry and search of the home.)
3. McArthur, 531 U.S. at 332.
4. 597 F.3d 995 (9th Cir. 2010).
5. 597 F.3d at 999-1000 (citation omitted).
6. Id. at 1000.
8. Id. (emphasis original).
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.