The Bounds of What is “Reasonable” (4th Amendment)

Police investigated a trio of roommates after a neighbor suspected they were using drugs in their apartment. The rookie cop in charge slowly plodded through the investigation while the roommates are “detained” for questioning for several hours.

Whether their 4th Amendment rights were violated is the subject of an appeal to our state Supreme Court. The case is entitled, State of South Dakota v. Tyler Tillman, Vincent Rossi, and Jessica Wallace (2012 S.D. 57).

In the fall of 2010, Spearfish police responded to a complaint from a neighbor who smelled marijuana smoke from the apartment upstairs.

Officers followed their noses to Unit 4 and knocked. Two of the three the tenants were home and allowed the officers inside.

Both denied any wrongdoing. However, the officers smelled pot smoke and saw marijuana in plain view.

The officers asked permission to search the apartment and were told to get a warrant. In response, the officers handcuffed the tenants, placed them in the back of a squad car, and then posted an officer to guard the apartment.

Neither of the two tenants was formally arrested. Instead, they were both transported to the police station and placed in separate holding rooms to wait during the warrant process. It would be a very long wait.

This was the officer’s first-ever warrant, and it took him over three hours to piece together a boilerplate form for the judge, and another hour for the judge to approve it. During the warrant search, the officers found pot paraphernalia, and also illegal mushrooms and prescription drugs.
Meanwhile, the third tenant came home and discovered the officer guarding his apartment. He, too, was handcuffed and taken downtown.

At 10 pm, all three roommates were finally released. They were charged with drug-related felonies, and each asked the circuit court to throw out the evidence against them, claiming that the long detention had violated their 4th Amendment rights (8 hours for the first two; 5 hours for the third roommate). The trial court agreed and threw out the evidence. The State appealed.

The 4th Amendment has received plenty of attention and scrutiny over the years. It guarantees our right to be free from unreasonable searches and seizures. At its core, it protects our privacy by prohibiting the government from unreasonably intruding into our lives, our cars, our computers, our pockets, and our homes. To detain us or search any of these, the government needs a warrant signed by a judge or a really, really good reason why a warrant isn’t necessary.

The authors of our Constitution didn’t provide us with a user’s manual. Instead, the framers outlined our rights in broad terms without any guidance about how to enforce them. That task fell to our courts.

Individual litigants began to argue their cases, alleging their rights had been violated. Slowly, over the years, similarities emerged and fact patterns started to repeat themselves. Occasionally, the Court issued a “landmark” case that explained and assimilated several past cases into a clearer rule to be used by lower courts in future cases.

After two centuries, this methodical, organic process has created a set of rules and tests for almost every Amendment.

The legal rule used in 4th Amendment cases like the roommates’ is called the McArthur test, which derives from a 2001 U.S. Supreme Court case, Illinois v. Charles McArthur.

The test requires lower courts to evaluate four factors to determine whether law enforcement acted ‘reasonably’ within the 4th Amendment. As applied here, the court asked four questions:

  • Did police have a legitimate reason to suspect criminal activity in the apartment by each Defendant?
  • Did police have a legitimate fear that the evidence of the crime would be destroyed if the home was left unattended?
  • Did the officers make reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy?
  • Did the officers act diligently and to prevent an intrusion into privacy that was longer than reasonably necessary under the circumstances?

The four-part test is not black-and-white: it involves judgment and gray areas. Judicial minds can clearly come to opposite conclusions when looking at the same set of facts.

In this case our Supreme Court disagreed with the trial court about the fate of the two roommates who were home when the police arrived. The key to their situation is that they both could have been arrested immediately for being found in an apartment that smelled of burning pot. Thus, their eight-hour “de facto arrest” and detainment didn’t trouble the Court.

The situation was different for the third roommate. He came home and unexpectedly found his residence being guarded by an officer and was then forcibly taken downtown. He sat for several hours before being read his Miranda rights.

The Court ruled that his five-hour “de facto” arrest wasn’t reasonable. The officers could have simply told the third roommate to leave, rather than detaining him, and five hours was far too long to wait for a simple warrant. Therefore, the Court threw out the urine sample that was taken from him while detained, as well as all of the statements he made during his detention.

About the author

I'm a South Dakota trial lawyer, raised on a hog farm near Lennox. My cases tend to involve corporate wrongdoing (such as insurance companies that lie or deny claims, or both). science (such as whether someone had the mental capacity to execute a Will or Trust), or technical aspects (like construction litigation). I also regularly sue public entities that refuse to pay their fair share. I studied international relations as an undergrad at Georgetown University in Washington, D.C., and then graduated second in my law school class at the University of South Dakota. I'm an avid runner and a "family-taught" carpenter (i.e., I learned most of what I know from Grandpa, Dad, and my brother Steve). And I'm a kid at heart, with a love for model trains and my children's Legos. Beyond the practice of law, my most passionate endeavor is The Finish Line Fund. We founded this non-profit in 2017 in order to raise funds and expand research for rare diseases, including Friedreich’s Ataxia, which affects my 17-year-old daughter. You can learn more (and give) at