In this thread, among others, we’ve talked about what responsibility the police might have to repair damage conducted during the execution of a search warrant.
Just off the presses from a district court in the Ninth Circuit: There is no right of repair for property damaged during a search, as long as the search was conducted in a reasonable manner. KRL v. Moore, 2006 U.S. Dist. LEXIS 8314 (E.D. Cal. March 2, 2006) (a case involving excavation), on remand from KRL v. Moore, 384 F.3d 1105 (9th Cir. 2004):
I would have bumped the earlier thread, but it’s a couple of years old… even though this alternative has me posting a new thread in GQ that really isn’t a question, but a clarification and answer to an earlier question.
Hey, Bricker, because you didn’t post any details I’m going to ask you some followup. Presumably in the cited case the police actually encountered some evidence, right? In which case it seems reasonable that they’d not be liable for the cost of repairing the hiding of evidence. But I can forsee cases whereby the police search someone ultimately found to be innocent, or searched without finding anything, or searched and didn’t find anything abut the person was guilty anywhere, or totally screwed up and searched the wrong person even though they had a warrant just based on bad information.
So… as a lawyer (and I’m not your client and I’m not even in this situation) what does this case say about other circumstances? If I come into money and pay off a credit card bill and this causes the polizei to tear apart my finished basement for no good reason, am I totally screwed? Moreso what would a standard insurance policy (homeowners’) say about such circumstances?
IANAL but I would think in this case it would defintely be a yes, they’d have to pay for damages because they clearly screwed up.
One of the threads Bricker refers to is mine started about 3 months ago (link). That thread was prompted by my viewing of a CSI episode where a hand was found sticking out of the foundation of a house. The hand (and rest of the body) were very old and the current owners had no part in the crime that got the person there. The CSI folks proceed to jackhammer apart the foundation.
In this case I was wondering if the police would have to pay to repair that. It is not the owners doing and seems unfair they be made to bear what, in this (fictional) case would likely be substantial repair costs.
I’m not sure about liability, but if the TV show NYPD Blue is any indication, New York City’s Law Department seems to deal with such issues. (Don’t laugh; i know it’s a fictional show, but the producer and main consultant was a former NYPD detective, and i’m sure they try to get basic procedural stuff right).
In an episode in Season 2, Simone and Sipowicz break down a door looking for a suspect. When they interview the building’s landlord the next day, he asks if the city is going to pay to fix the door.
Sipowicz replies: “You have to make a claim with the Corporation Counsel. How old do you plan to live to be?”
Implying, it seems, that the wheels of reparation move pretty slowly in such cases.
It’s not clear from the show whether the “claim” is simply a matter of filing out a form and receiving reimbursement, or whether the landlord has to actually file a lawsuit against the city.
While i’m no legal scholar, it seems to me that the court’s decision constitutes a reasonable interpretation of the fourth amendment. After all, that amendment discusses unreasonable searches, and if the search was conducted under a valid warrant, then it was, by definition, reasonable (at least in a legal sense; i’m not discussing here the possibility that the warrant was obtained in some underhand or legally slippery manner).
But, while there may be no Constitutional redress avilable, it doesn’t mean that legislatures can’t pass laws requiring compensation in cases where damage is done and the search turns up no evidence. And i think they should do that.
I don’t mean that the police shold be required to fold your clothes and put them back in your wardrobe, or replace your CDs on their rack. But if the search involves actually breaking things, and the person is not guilty of the crimes of which he or she was suspected when the warrant was issued, then i think compensation is in order.
There would, of course, need to be some way of evaluating claims. And there’s also the danger that, if police departments new they were going to be financially liable for fixing the breakages caused by unproductive searches, there might be some incentive to “find” something that wasn’t originally there.
One of my family member’s house was searched by the police as part of the investigation of another family member’s alleged crime. The accused did not live in the house at the time and had not even visited there for several months. The police damaged many things in the process of the search (broke a window to gain access, smashed picture frames, broke apart drawers, tore up couches, just basically turned everything upside-down) and even stole some cash and a camera. No evidence pertinent to the case was found in the search of this home.
The homeowner inquired with a lawyer about taking legal action against the police and was told that it would be a waste of time. Since the accused was eventually convicted of the crime, the reasonableness of the search would be difficult to refute, and even though the homeowner was clearly uninvolved in the crime they’d be seen as “guilty by association”.
They would say: “Prove it. Do you have any proof that the cash actually existed? What about the camera? For all we know, you lost it last week and are now claiming the police stole it.”
Cope get bogus claims like this all the time, I’m sure, so they’re bound to be skeptical. I’ve personally witnessed a bogus claim. My grandmother evicted a tenent from a house she had for rent. The tenent refused to leave, so the cops were called to remove the tenent’s belongings. The tenent’s boyfriend picked up the items when the cops set them out. The woman who rented the place then claimed that a diamond necklace and a fur coat had been stolen from her house.
This happenned in Carrboro, NC, about ten or fifteen years back.
If memory serves, the department in question voluntarily repaired the property at its expense and then began discussing a pain and sufferring/mental anguish settlement. I am uncertain as to whether or not a settlement was reached on that matter.
It really sucked. They meant to raid a drug dealer in Apartment X, but got his neighbor in Apartment Y. There was at least one kid there, and seeing mommy and daddy get hand-cuffed while the house gets torn apart by cops looking for drugs was a little upsetting to Jr.
Of course the occupants of Apartment Y quietly walked to their cars and drove away during the commotion.
YMMV, depending on how PR-sensitive your local PD is.
The cite said the search was “reasonable”. I take that to mean that as long as there is enough probable cause to get a search warrant. If the warrant was later challenged and then thrown out for cause or they broke down the door to 14a instead of 14b then they wouldn’t be covered. If the warrant was valid be no evidence was found they are covered.
If the police conduct is reasonable, then the Constitution does not give a cause of action for recovery to the damaged party.
That’s not to say that federal or state law, or police department policy, could not authorize payment. But there’s no Constitutional requirement for such a law or policy.
if a search warrant is later thrown out, the cause would be very relevant. If the warrant was quashed because the police lied on the supporting affadavit, then the police conduct is obviously UNreasonable. If the warrant is later found to be lacking in probable cause, but for a reason that the police would not reasonably be hip to, then the police conduct is still reasonable.
Same story with respect to 14A and 14B. If the mistake is a reasonable one – say, no numbers on apartment doors, and B is the first apartment instead of A, then their conduct is probably reasonable.
It’s of absolutely no significance whther or not contraband is actually found. The question is whether the search was reasonable, not what the results were.
What **Bricker ** said. Some people have tried to argue that it is a violation of the Takings Clause to refuse compensation to innocent parties whose property is damaged during a search or arrest, but most courts have rejected this argument (a few courts have accepted the argument).
What constitutes “reasonable”? I’m not trying to be troublemaker, and I agree that in Bricker’s cited case that was reasonable. Does “reasonable” only mean that the issuance of the warrant was reasonable, and the police can have fun and completely fucking destroy a house just because they have a warrant? Or does it mean that the police have to execute “reasonable care” despite having a warrant? A warrant is a license to acquire evidence, and in the case of the OP the evidence was aquired. But a warrant is not a license to be a malicious jackass, or is it?
I suspect it means nothing right now because there’s not enough case precedence. That’s why I was questioning Bricker’s OP – because this is a very specific precendent and leaves open a lot of questions, based on just the OP. That is, I don’t know any other details but am very interested in them.
Here’s an example: the police want to look for financial records inside my Tivo. I offer them the Torx-5 screwdriver so that they can take care in opening. They tell me “screw you butthole” and rip it apart with the mini jaws of life. Despite the fact that they’re assholes, was this “reasonable” or not? Maybe that’s too specific an example, but do you see where I’m going? In the case of the OP, it’s specifically mentioned that earth moving equipment was required (and I agree, so far). In my example case, the mini jaws of life aren’t required in that I offer the proper tool.