Prosecuting Police for Trespass

by Jay Marshall Wolman

In a comment to my post announcing the formation of the Third Amendment Lawyers Association, reader Angie NK asked for some Ninth Amendment love. I’ll get there, Angie, I promise.

But, before I do, I had some questions and thoughts about #3’s neighbor, the Fourth Amendment. The Third Amendment protects the home from a chronic invasion–the quartering of soldiers.  The Fourth Amendment protects the home from an acute invasion–improper police searches.  As a refresher, the Fourth Amendment states:

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.

Normally, we think of the Fourth in terms of evidentiary suppression in criminal matters.  But that jurisprudence really didn’t come about until 1914 in Weeks v. United States, and didn’t apply to the states until 1961 in Mapp v. Ohio.  So, what was the role of the Fourth Amendment before then?

To begin, what is a Warrant?  Presently, we think of it as a piece of paper that police show to someone that lets them go ahead, look around, and take things.  But, basically, a warrant is a get-out-of-jail-free card to the holder, that so long as they comply with the terms thereof, they will not face legal liability.  “Warrant” does not actually mean permission; rather it is related to the word “Guaranty”.  (Side note, this is a linguistic doublet, reaching English from the same roots, along different paths, like Ward and Guard.)  It is a written guarantee for the holder.  Thus, the holder of an arrest warrant is not liable for otherwise kidnapping the suspect, and the holder of a death warrant is not liable for otherwise murdering the inmate.  With that in mind, what does a search warrant guarantee?  It guarantees that the holder is not liable for trespassing upon your premises and stealing your stuff, which is normally what would occur if someone started snooping and taking your things.

Nowadays, we don’t really think about warrants in these terms.  We focus on whether a seizure is reasonable (e.g. Terry stop) or whether evidence should be suppressed based on a direct violation or as fruit of the poisonous tree.  But, let’s look at your standard scenario:  the police enter your premises without a warrant, see your stash, seize it, and prosecute you for a drug crime.  Your criminal defense attorney does a whiz-bang job of proving the warrantless search was unreasonable, the evidence is suppressed, and you go free.  Now, you don’t get your stash back, because it is contraband, but any other items taken really shouldn’t have been.  In effect, the police officers illegally entered your house (breaking and entering) and deprived you of your property (larceny, burglary), while armed (robbery).

Seems to me, that is probable cause to prosecute the officers for their unlawful actions and that a civil action would have merit.  Certainly, the officers would have an opportunity to contest this (after all, the State losing the evidentiary hearing isn’t binding on the officers who did not have personal counsel involved in the process), but since they had no Warrant, they are not immune from this process.  And the State would not really be arguing both sides–once it lost in the evidentiary proceeding, there is nothing wrong with acknowledging it was found wrong and is now on the side of right.

As a matter of policy, perhaps we might not want to criminally prosecute police, but then why prosecute any public official for honest services fraud?  If the search and seizure was wrong, and there was no Warrant or the scope of the Warrant was exceeded, then those acting unlawfully should face punishment.  (I am not, of course, advocating for prosecution where there was a Warrant issue, but the Warrant was issued improperly, unless it was the knowingly improperly procured.  Otherwise, that would undermine any warrant as no officer would trust its reliability and carry out its purposes.)  Similarly, the police departments themselves should suspend or terminate those who unlawfully search and seize, just as they should those who use excessive force.  In all of those cases, the rights of the citizen have been abused, and the public deprived of the officer’s honest services.    If we want to be tough on crime, we need to be consistent and not give a pass to those who break the law without a Warrant to do so.  Otherwise, it seems to be selective enforcement that should not survive Oyler v. Boles–only enforcing against the class of person who are not police.


15 Responses to Prosecuting Police for Trespass

  1. Dan says:

    Interesting theory. Since all this warrant concept stems from British common law, might there be an answer somewhere?

    I’m typing on my phone while cooking curry so I’m just throwing the idea out there. I haven’t looked yet.

    • Jay Wolman says:

      We wouldn’t need to turn there. We have the answers under each state’s law as well as a developed body of law under section 1983 and qualified immunity. It is more a political question of why police aren’t held accountable after the evidence is thrown out due to a constitutional violation.

  2. DallasCrimLaw says:

    Dear Jay –
    While your musings on prosecuting police for warrantless searches strikes a responsive chord with all of us defending persons accused of crime by the state, I think you might have some difficulties actually holding the police liable.

    A warrantless search must be founded on some articulated grounds of reasonable suspicion or the higher requisite of probable cause. This is true even if that suspicion or cause is in error. Nevertheless, the law puts the police officer in the position of that which a reasonable law enforcement officer believes at the time of the warrantless search. So, even if, a fiore, a Court finds that the police officer’s search was warrantless and unreasonable, it is likely that, a priori, a reasonable officer would believe that there was probable cause or reasonable suspicion to search.

    As much as I hate to admit it, without giving the police some latitude in this regard, it would be impossible for any officer to do much of anything without taking the often excessive time to obtain a formal warrant.

    • Jay Wolman says:

      I tend to agree. And I also recognize that qualified immunity would serve a function. But, I am sure you are aware of instances in which a warrantless search was unreasonable and the officer should have known better. This is no different than any other dispute over mens rea, where you had a good faith belief that what you were doing was not criminal (e.g., trying to drive off with a car that isn’t yours because it looks just like your car).

  3. Praeceptor IP says:

    Instead of a state trespass suit, could you bring a_Bivens_ suit under sec. 1983?

  4. Angie NK says:

    You’re right – I never really thought of Warrants as guarantees of anything, despite my etymological familiarity with the root word. It’s one of those words one uses all the time, but never stops to think about.
    Oh, and don’t worry about me getting antsy or anything. I’m patient.

    • DallasCrimLaw says:

      Interestingly, I didn’t know the derivation of the word and its attendant uses until I became a briefing clerk at the Dallas Court of Appeals. On payday, the Clerk of Court put my check on my desk and said, “Here’s your warrant.” I thought that odd and asked her the reason she called it a “warrant.”

      She explained that the check represented a guaranty of payment by the State for my services.

      I never thought of the word in quite the same way again, but continue to use the word “warrant” for any type of guaranty. In fact, I recently prepared a lease that required a personal guaranty from the business owner and titled that particular section: “Personal Warrant.” Another happy user.

      • Jay Wolman says:

        To be fair, the colloquial use of “warrant” as “document authorizing something” has been around for a few hundred years. still, the original meaning remains; after all, if you don’t have the authorizing document, you are liable for the actions you take that are otherwise impermissible.

    • Jay Wolman says:

      Good, then you won’t be upset that I’ve been also busy at my Third Amendment blog

  5. Gary S. Edinger says:

    Your theory has legs in the real world. I’ve served civil trespass notices on law enforcement on two occasions with good results in both (police stopped harassing the club / store). On two other occasions I sued in Federal Court under a Crosby v. Paulk theory (11th Cir) and procured a settlement whereby the police would not enter a club without a warrant or exigent circumstances (no “administrative seaches” or “bar checks”)

  6. […] previously discussed, reader Angie NK asked for a post about the Ninth Amendment.  I digressed to the Fourth Amendment […]

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