UNITED STATES OF AMERICA v. JOSHUA BURGARD, No. 11-1863.

Expecting to find evidence of child pornography, police officers seized Joshua Burgard’s cell phone without a warrant. At that point, however, they seemed to have lost their sense of urgency: they did nothing with the phone right away and allowed six days to elapse before they applied for a search warrant.

Once they had the warrant in hand, they searched the phone and, as anticipated, they found sexually explicit images of underage girls. Burgard pleaded guilty to two counts of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2), and was sentenced to 210 months’ imprisonment and 15 years of supervised release.

On appeal Burgard challenges only the district court’s denial of his motion to suppress the photographs found on the phone. The pictures should have been excluded, in his view, because the police tarried too long before obtaining the warrant.

Although we agree with Burgard that the officers did not act with perfect diligence, we do not find the delay here to be so egregious that it renders the search and seizure unreasonable under the Fourth Amendment. We therefore affirm.

This case requires us to address one narrow question: did the six-day delay in securing a warrant render the seizure of Burgard’s phone unreasonable for purposes of the Fourth Amendment? (All parties agree that the warrant was necessary, and so we make no comment on that point. The search here was of the more invasive type excluded from our discussion in United States v. Flores-Lopez, No. 10-3803, 2012 WL 652504 at *7 (7th Cir. Feb. 29, 2012).)

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, 330 (2001) (quoting United States v. Place, 462 U.S. 696, 701 (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.” Place, 462 U.S. at 701.

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. United States, 468 U.S. 796, 812 (1984) (“[A] seizure reasonable at its inception because based on probable cause may become unreasonable as a result of its duration.”).

When officers fail to seek a search warrant, at some point the delay becomes unreasonable and is actionable under the Fourth Amendment. Moya v. United States, 761 F.2d 322, 325 n.1 (7th Cir. 1984) (“Even if the officers had probable cause to believe Moya’s bag contained contraband, there would be a question whether the three hour detention of the bag before seeking a search warrant was reasonable.”). We review the district court’s decision about the reasonableness of the delay prior to the issuance of the warrant de novo, see United States v. Richmond, 641 F.3d 260, 261-62 (7th Cir. 2011).

There 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 Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Place, 462 U.S. at 703. A

On the individual person’s side of this balance, the critical question relates to any possessory interest in the seized object, not to privacy or liberty interests. “A seizure affects only the person’s possessory interests; a search affects a person’s privacy interests.” Segura, 468 U.S. at 806. The longer the police take to seek a warrant, the greater the infringement on the person’s possessory interest will be, for the obvious reason that a longer seizure is a greater infringement on possession than a shorter one. 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. Thus the “brevity” of the seizure is “an important factor” for us to weigh. Place, 462 U.S. at 709.

Turning to the state’s side, 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. Finally, when we balance these competing interests we must “take into account whether the police diligently pursue[d] their investigation.” Place, 462 U.S. at 709. 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. McArthur, 531 U.S. at 331.

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. B

Applying these factors, we cannot say that the six-day delay here was so long that the seizure was unreasonable.

We acknowledge that Burgard had a strong interest in possessing his cell phone. At no point before the seizure did he abandon the phone or relinquish it to a third party. He even asserted his possessory interests over the phone by voluntarily going to the police station to obtain a property receipt, which would help him obtain the phone’s return. On the other side of the equation, law enforcement’s interests were also strong. Burgard has conceded that police had probable cause to believe that the phone would contain evidence of a crime.

Although the Supreme Court found a 90-minute delay to be unreasonable in Place, 462 U.S. at 696, the Court said nothing to suggest that 90 minutes is an outer limit for all cases. For one thing, the seizure in Place was made on the basis of reasonable suspicion, not probable cause. See Martin, 157 F.3d at 64. Given these facts, Burgard leans heavily on the diligence factor, arguing that the officer was not diligent because he should have been able to submit the warrant application more quickly.

We are willing to assume that Burgard is correct on this point. 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 that he received from Wilson. But police imperfection is not enough to warrant reversal.

With the benefit of hindsight, courts “can almost always imagine some alternative means by which the objectives of the police might have been accomplished,” but that does not necessarily mean that the police conduct was unreasonable. United States v. Sharpe, 470 U.S. 675, 686-87 (1985). 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 Mitchell, 565 F.3d at 1351. He wanted to be sure that 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. Encouraging slapdash work could lead to a variety of other problems. See, e.g., Groh v. Ramirez, 540 U.S. 551 (2004).

After seizing an item without a warrant, an officer must make it a priority to secure a search warrant that complies with the Fourth Amendment. This will entail diligent work to present a warrant application to the judicial officer at the earliest reasonable time.

We find that this standard was met here and that the six-day delay was not so unreasonable as to violate the Constitution.

We AFFIRM the district court’s denial of Burgard’s suppression motion and thus the judgment of the court.

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