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6th Cir. ruling against ATFE on search warrant
From Saeid Shafizadeh comes this interesting 6th Circuit ruling. (warning--large pdf file). It's an appeal from a ruling in a Bivens-type civil suit for damages. Gist of it:
1. ATFE's search warrant was invalid. The 4th Amendment requires that a warrant specify the place to be searched and the items to be seized. With regard place, this one specified an entire building, although the items were known to be confined to a special Customs vault in the basement. With regard items to be seized, the warrant said only "see affidavit," and the affidavit was not attached and had been sealed by the court.
2.The agents are not entitled to qualified immunity against suit. That immunity applies when a reasonable law enforcement officer would not have known that what he was doing was unconstitutional. Here, the requirements of specificity are on the face of the 4th Amendment, which has been on the books for a couple of centuries.
Congrats to attorney Richard Gardiner on the win.
Glad to see a court taking the Fourth Amendment seriously. The brief description above necessarily makes it sound like a slam-dunk -- but the length and detail of the opinion shows it was anything but. I could easily see a more pro-prosecution court saying "well, the requirement of specificity in a warrant is found on the face of the 4th Amendment, but the courts hadn't, before this search, ruled specifically on whether the warrant can refer to a sealed affidavit, so a reasonable LEO wouldn't have known this was an unconstitutional warrant. It'd even be possible for a court to have said "so what if the warrant refers to a sealed affidavit? The owner of the place being searched should take the agent's word that they know what they are authorized to seize, and the court can always unseal the affidavit if there is a question about it."
It surely helped that (1) the primary plaintiff was not a suspect. He was just the fellow who owned the Customs secure storage area. And (2) it was, as I read the opinion, Saeid himself, who is as I recall (it's early in the morning and I'm groggy) going to law school. So when the agents showed up and handed him a warrant describing the items to be seized as "see affidavit," he asked for the affidavit. And upon being told he couldn't see it because it was sealed, objected. Objected enough to where one of the agents got badge-heavy and said the warrant covered Saeid's entire building, not just the basement locker, and if he didn't pipe down, they would search the entire building. (Quite a threat, BTW -- a thorough search is more than a look-see: I've heard of one where the LEOS (not ATFE) took apart the heater and dumped potted plants.) That response made them esp. vulnerable on the lack of specificity of place to be searched.
I'll email Saeid and see if he'll come over and comment.
· BATFE
Comments
While the agents are ultimately responsible, should not the AUSA and the Judge signing the warrant have some responsibilty for the determination of "specificity?" I am assuming, of course, that they though the location was specific enough. Or did the agents leave out the fact that the evidence sought was in the basement?
Posted by: The Wandering Mind at April 4, 2005 12:48 PM
David,
Great site, in the 6th Cir. case, I briefed and argued the case on behalf of Pars International Corp. the U.S. has asked the Court for an "advisory opinion" as to whether the agents have 60 days to file their motion for a hearing by the full panel since they were sued as individuals. Based on the pleadings filed so far it appears that the Solicitor General may be reviewing the case as well so I better keep my comments off the air until the matter is finalized. It is worth noting that U.S. Customs Agents declined BATFE's invitation to participate in the execution of the warrant and to participate in the search & Seizure. Moreover, Customs inspectors had repeatedly told BATF agents that the Customs could constructively seize the goods without resorting to a warrant but ATF agents were determined to have their show.....
Sincerely
Saeid Shafizadeh
Louisville, Kentucky
Posted by: Parsi at April 16, 2005 03:30 PM
If law enforcements have a search warrant for an apartment building but search one indivial apartment doesnt the warrant have to specify the apartment
Posted by: kenya gattison at September 8, 2007 12:59 AM