The Reasonableness and Unreasonableness of Delays in Obtaining Search Warrants

• Jurisdiction: United States,Federal
• Publication year: 2020
• Citation: Vol. 71 No. 4

The Reasonableness and Unreasonableness of Delays in Obtaining Search Warrants

Brianna N. Stanley

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The Reasonableness and Unreasonableness of Delays in Obtaining Search Warrants^*

I. Introduction

Imagine a couple driving down the road and lawfully being stopped by police. Next, envision that traffic stop turning into an arrest and the couple's phones being seized, their vehicle being impounded, and their computer and tablet within the vehicle taken to the inventory room at the police department.¹ If you are thinking this does not sound like anything out of the ordinary, you would be correct. However, imagine their defense attorney constantly asking for the phone, tablet, and computer to be given back to the couple so that evidence on these devices could be examined for their criminal case.² Finally, think about what stress this couple endured with their ongoing criminal proceedings and search warrants for these devices not being obtained until 539 and 702 days later.³ This is currently a reality in the area of criminal law and many individuals are waiting long periods of time before their personal belongings are returned to them.

This Comment will begin by exploring the Fourth Amendment⁴ as it relates to seizures and search warrants.⁵ Then, the discussion will continue by exploring Supreme Court cases relating to this issue. Next, the discussion will center on how the courts in certain circuits and states are ruling on this issue and finally attempt to synthesize a benchmark test from these cases.

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II. Legal Background

A. The Fourth Amendment

According to the Fourth Amendment,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.⁶

In explaining the purpose of the Fourth Amendment, the Supreme Court of the United States has stated that "this Court has interpreted the Amendment as establishing rules and presumptions designed to control conduct of law enforcement officers that may significantly intrude upon privacy interests."⁷ The Supreme Court, in United States v. Jacobsen,⁸ stated that "a seizure lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by the Fourth Amendment's prohibition on 'unreasonable seizures.'"⁹

B. Reasonable Delays

In United States v. Van Leeuwen,¹⁰ the respondent had two packages containing coins and he mailed one to California, while the other was mailed to Tennessee. He also insured both packages for $10,000.¹¹ A "postal clerk told a policeman who happened to be present that he was suspicious of the packages" and then "the policeman at once noticed that the return address on the packages was a vacant housing area of a nearby junior college, and that the license plates of respondent's car were British Columbia."¹² After discovering this information, customs officers in Seattle contacted the appropriate authorities in California and informed them that there was an ongoing investigation for trafficking in illegal coins but was unable to inform the authorities in Tennessee of this until the next day.¹³ The Seattle customs officer then

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retained a "search warrant at 4 p. m., and it was executed in Mt. Vernon at 6.30 p. m., 2 1/2 hours later."¹⁴

According to the Court, the circumstances surrounding the packages "certainly justified detention, without a warrant, while an investigation was made."¹⁵ The Court emphasized how Seattle customs could not contact the authorities in Tennessee and noted that "29 hours after the mailing, the search warrant reached Mt. Vernon, a speedy transmission considering the rush-hour time of day and the congested highway."¹⁶ The Court concluded that "[n]o interest protected by the Fourth Amendment was invaded by forwarding the packages the following day rather than the day when they were deposited."¹⁷ The Court quickly explained that "[t]he rule of our decisions certainly is not that first-class mail can be detained 29 hours after mailing in order to obtain the search warrant needed for its inspection."¹⁸ Finally, the Court clarified its holding by stating that:

We only hold that on the facts of this case - the nature of the mailings, their suspicious character, the fact that there were two packages going to separate destinations, the unavoidable delay in contacting the more distant of the two destinations, the distance between Mt. Vernon and Seattle - a 29-hour delay between the mailings and the service of the warrant cannot be said to be 'unreasonable' within the meaning of the Fourth Amendment.¹⁹

In a case from the United States Court of Appeals for the Eleventh Circuit, the Federal Bureau of Investigation (FBI) was investigating a username upon suspicion of child pornography and linked it "to a student at the University of Georgia."²⁰ The FBI then traveled to the student's residence to talk to him and ask "to seize and search [the defendant's] computer."²¹ The student told the FBI "that there was child pornography on the computer and on five external hard drives" then signed a form giving the FBI permission to take the electronic devices.²²

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Before seizing the electronics, the FBI permitted the student to "copy some school documents that he needed for his studies."²³

"On March 4, 2009, when the [FBI] agents took the computer and hard drives" they knew there was child pornography on it because the student told them that there was.²⁴ In other words, the FBI "took 25 days to prepare its application for a search warrant."²⁵ However, the search warrant for these electronic devices was not issued until April 13, 2009, and the FBI found "thousands of images and videos depicting child pornography."²⁶ In an effort to explain the delay in time that it took for the FBI to get the search warrant, the court stated that the FBI investigator "was in a two-person office that covered ten counties" and "that 'there [was] considerable effort that was put into the preparation of [Cearley's] affidavit.'"²⁷ The court noted that "the affidavit contained 'a lot of valuable information'" and "a 'very substantial amount of information specifically as to the Defendant's conduct.'"²⁸ Furthermore, the court explained that the judge that was going to grant the search warrant was not "able to review the warrant application until the following week."²⁹ The student "moved to suppress all evidence obtained from his computer and the five external hard drives" by contending "that he had a substantial possessory interest in the items," and he claimed that the FBI violated his Fourth Amendment rights because the "delay in obtaining a search warrant was unreasonable."³⁰

Regarding the test that the court used, the court stated that "when determining whether a delay renders a seizure unreasonable under the Fourth Amendment, we evaluate the totality of the circumstances presented by each case."³¹ The court stated that there were "several factors highly relevant to this inquiry" such as "the significance of the interference with the person's possessory interest" in addition to how long the delay lasted.³² Furthermore, "whether or not the person consented to the seizure" and "the government's legitimate interest in holding the property as evidence" are also important.³³ The court stated

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that they also "consider the nature and complexity of the investigation and whether 'overriding circumstances arose,'" in addition to, "the quality of the warrant application and the amount of time we expect such a warrant would take to prepare," as well as, "any other evidence proving or disproving law enforcement's diligence in obtaining the warrant."³⁴ Although the factors the court discussed seem very broad in scope, the court stated that it should not "establish a duration beyond which a seizure is definitely unreasonable or, as discussed below, even presumptively unreasonable."³⁵ However, the court did offer some guidance by stating that "[a] temporary warrantless seizure supported by probable cause is reasonable as long as 'the police diligently obtained a warrant in a reasonable period of time.'"³⁶

The court concluded that the government did not want to delay the search of the electronics and that it "no doubt preferred to commence its search immediately but could do so only with the judicial imprimatur of a search warrant."³⁷ The Eleventh Circuit acknowledged that the student did have "a significant possessory interest in his computer and his hard drives" but that it was diminished because the FBI allowed him to download things off of the computer, and he both admitted to the child pornography and showed it to the FBI.³⁸ The court went one step further and stated that the student showing the FBI child pornography "enhance[ed] the government's legitimate interest in maintaining custody of the computer and hard drives."³⁹ The court held that the government acted diligently in trying to obtain the warrant since the FBI agent immediately started preparing it when the student withdrew his consent to the FBI having the electronics and due to the information within the warrant.⁴⁰ Lastly, the court stated that this investigation was very complex and the agents working on the case were busy.⁴¹ The court held that the "25-day seizure based solely on probable cause is far from ideal" but that it was reasonable under the totality of the circumstances.⁴²

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In United States v. Martin,⁴³ an airplane company, MANE, contacted the police to inform them that some of their airplane parts were stolen. Employees from MANE stated that they believed the defendant's own airplane company (Warplanes), who was located next door, was a suspect. Braddock, who owned another airplane company...