As Wikipedia notes, the 4th amendment requires
that law enforcement officers
receive written permission from a .
. . magistrate, to lawfully search and seize evidence while
investigating criminal activity. A court grants permission by issuing
a writ known as a warrant. A search or seizure is generally
unreasonable and unconstitutional, if conducted without a valid warrant. . . .
The issue in U.S. v.
Burgard, __ F.3d __, 2012 WL 1071706 (U.S. Court of Appeals for the 7thCircuit 2012) wasn’t whether the
officers who searched Joshua Burgard’s cell phone got a warrant before they
conducted the search. It was whether
they waited to long to get the warrant.
The case began on Wednesday, January 6, 2010, when one of
Burgard’s friends
approached Sergeant Louis Wilson of the
Smithton, Illinois, Police Department. The friend told Wilson he had seen sexual
images of young girls (possibly aged 14 or younger) on Burgard's cell phone,
and that Burgard, 21 years old at the time, had bragged about having sex with
them. This friend agreed to serve as a confidential informant and text Wilson
later that night if he was with Burgard and Burgard had the phone.
The informant followed through with the
plan: that night, he texted Wilson that he and Burgard were driving together in
the informant's car. Wilson then stopped the informant's car and seized
Burgard's phone. Burgard voluntarily went to the police station where Wilson
entered the phone into evidence and gave Burgard a property receipt.
U.S. v. Burgard,
supra.
As the Wikipedia passage quoted above notes, warrants are
required to seize property as well as
to search it. In this case, the prosecution and defense
agreed that Sergeant Wilson needed a warrant to search Burgard’s cell phone,
but the Court of Appeals found he did not need a warrant to seize it:
In general, `seizures of personal
property are “unreasonable within the meaning of the Fourth Amendment . . .
unless . . . accomplished pursuant to a judicial warrant.”’ Illinois v.McArthur, 531 U.S. 326 (2001) (quoting U.S. v. Place, 462U.S. 696 (1983)). An officer may temporarily seize property without a warrant,
however, if she has `probable cause to believe that a container holds contraband
or evidence of a crime’ and `the exigencies of the circumstances demand it or
some other recognized exception to the warrant requirement is present.’ U.S. v.
Place, supra.
U.S. v. Burgard,
supra.
The Court of Appeals also pointed out, however, that
Even a permissible warrantless seizure,
such as the initial seizure here, must comply with the Fourth Amendment's
reasonableness requirement. Thus, the Supreme Court has held that after seizing
an item, police must obtain a search warrant within a reasonable period of
time. See, e.g., Segura v. U.S., 468 U.S. 796 (1984). . .
U.S. v. Burgard,
supra.
The “reasonableness” with which Wilson acted to obtain the
necessary warrant was the issue here because he
did not immediately apply for a state
search warrant. Instead, he wrote a report about the seizure and forwarded it
to Detective Mark Krug in nearby Collinsville, because Krug was assigned to
work part-time with the FBI's Cyber Crimes Task Force. Wilson and Krug worked
different shifts, however, and so Krug did not receive Wilson's report until
the next day.
After Krug read the report, he tried to contact
Wilson to learn more details, but again the shift differences got in the way
and the two were unable to speak until later that night. The next day, Friday,
January 8, Krug contacted the United States Attorney's Office to inform it that
he planned to draft a federal search warrant for the phone. An Assistant United
States Attorney (AUSA) told him to proceed with drafting the affidavit.
Some time that same day, an armed
robbery occurred in Collinsville. Because the armed robbery was more pressing,
Krug put the cell phone warrant aside and worked on the armed robbery
investigation. . . . Krug may have continued to work on the robbery on
Saturday, or he may have taken that day off. But by Sunday, he was able to
return to Burgard's case and draft the affidavit.
On Monday morning, January 11, he sent
his draft to the AUSA and the two went back and forth making edits. The next
day, the AUSA finally presented a completed warrant application to the federal
magistrate judge, who signed the warrant that day. Krug promptly searched the
phone pursuant to the warrant and found numerous sexually explicit images of
young girls.
U.S. v. Burgard,
supra. (For the process involved in
obtaining a federal search warrant, see Rule 41(d) of the Federal Rules of
Criminal Procedure.)
Burgard was charged with and pled guilty to two counts of
receiving child pornography in violation of 18 U.S. Code § 2252(a)(2) and was
sentenced to “210 months’ imprisonment and 15 years of supervised
release.” U.S. v. Burgard, supra. (According
to Burgard’s brief on appeal, the charges were based on law enforcement
interviews with two young girls, each of whom said she sent “naked images of
herself to Burgard.” Brief of Appellee, U.S. v. Burgard, 2011 WL 2604030.)
On appeal, he claimed the district court judge erred in
denying his motion to suppress the photographs found on his phone because “the
police tarried too long before obtaining the warrant.” U.S.
v. Burgard, supra. In other words,
he argued that because the officers did not obtain the warrant in a
“reasonable” period of time, the search violated the 4th Amendment,
which meant the evidence should be suppressed.
U.S. v. Burgard, supra.
In analyzing the parties’ arguments on this issue, the Court
of Appeals noted, first, that
[t]here is unfortunately no bright line
past which a delay becomes unreasonable. Instead, the Supreme Court has
dictated that courts must assess the reasonableness of a seizure by weighing `the
nature and quality of the intrusion on the individual's 4th Amendment interests
against the importance of the governmental interests alleged to justify the
intrusion.’ U.S. v. Place, supra.
U.S. v. Burgard,
supra.
The court found that on the individual’s “side of this
balance,” the critical question
relates to any possessory interest in
the seized object, not to privacy. . . . `A seizure affects only the person's
possessory interests; a search affects a person's privacy interests.’ Segura
v. U.S., supra. The longer the
police take to seek a warrant, the greater the infringement on the person's
possessory interest will be. . . . But unnecessary delays also undermine the
criminal justice process in a more general way: they prevent the judiciary from
promptly evaluating and correcting improper seizures.
U.S. v. Burgard,
supra.
The Court of Appeals explained that on “the state’s side” of
this equation,
a key factor in our analysis is the
strength of the state's basis for the seizure. The state has a stronger
interest in seizures made on the basis of probable cause than in those resting
only on reasonable suspicion. All else being equal, the Fourth Amendment will
tolerate greater delays after probable-cause seizures.
U.S. v. Burgard,
supra. It also noted that in
balancing these “competing interests”, courts must also
`take into account whether the police
diligently pursue[d] their investigation.’ U.S.
v. Place, supra. When police act
with diligence, courts can have greater confidence that the police interest is
legitimate and that the intrusion is no greater than reasonably
necessary. Illinois v. McArthur,
supra. When police neglect to seek a warrant without any good explanation
for that delay, it appears that the state is indifferent to searching the item
and the intrusion on an individual's possessory interest is less likely to be
justifiable.
U.S. v. Burgard,
supra.
The Court of Appeals found, after applying these standards,
that it could not “say that the six-day delay here was so long that the seizure
was unreasonable.” U.S. v. Burgard, supra. It
“acknowledge[d]} that Burgard “had a strong interest in possessing his cell
phone” since, among other things, he did not abandon it or “relinquish it to a
third party” and “asserted his possessory interests over the phone by” going to
the police station and obtaining “a property receipt, which would help him
obtain the phone's return.” U.S. v.
Burgard, supra.
But it also found that “[o]n the other side of the equation,
“law enforcement's interests were also strong.”
U.S. v. Burgard, supra.
Burgard “conceded that police had probable cause to believe that the phone
would contain evidence of a crime.” U.S. v. Burgard, supra. And the court
tended to agree with Burgard’s argument that “that the officer was not diligent
because he should have been able to submit the warrant application more
quickly.” U.S. v. Burgard, supra.
It strikes us as implausible that an
officer with over 14 years of experience, like Krug, could not write a two-page
affidavit in fewer than six days, especially when the affidavit drew largely on
information that was contained in the initial report he received from Wilson.
The government argues that the delay
was attributable to Krug's lack of familiarity with federal cell-phone
warrants, but that explanation is not persuasive given the fact that the bulk
of the warrant appears to be boilerplate. And although it is true that the
detective's attention was diverted by a more serious robbery case, this did not
take place until Friday, after three days had already passed.
U.S. v. Burgard,
supra.
But the Court of Appeals also found that
police imperfection is not enough to
warrant reversal. . . . Krug may
theoretically have been able to work more quickly, but his delay was not the
result of complete abdication of his work or failure to `see any urgency’ as
in [U.S. v. Mitchell, 565 F.3d
1347 (U.S. Court of Appeals for the 11th Circuit 2009)].
He wanted to be sure he had all the
information he needed from the seizing officer and he wanted to consult with
the AUSA, all the while attending to his other law enforcement duties. We do
not want to discourage this sort of careful, attentive police work, even if it
appears to us that it could or should have moved more quickly.
U.S. v. Burgard,
supra.
The court ultimately found that the six-day delay in this case
was not
so unreasonable as to violate the
Constitution. Burgard argues that this outcome could `give authorities license
to retain seized property for long periods of time merely because they chose
not to devote a reasonable amount of resources and sufficient experienced
personnel’ to the task of obtaining warrants.
Given the fact-specific nature of these
inquiries, we think these fears are overblown. It remains possible that a
police department's failure to staff its offices adequately or to give officers
sufficient resources to process warrant applications could lead to unreasonable
delays. But this case does not present that sort of egregious abdication of
duties.
U.S. v. Burgard,
supra.
The Court of Appeals therefore affirmed “the district
court's denial of Burgard's suppression motion and thus the judgment of the
court.” U.S. v. Burgard, supra.
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