November 17, 2010
Dear City Attorney:
You have the following question: Are the police liable for damages done to private property that occur when they obtain entry to a building and seize a person’s property under a search warrant or under exigent circumstances?
I have gathered a number of cases in this area, but I am briefly analyzing only Sixth Circuit cases, and one Tennessee U.S. District Court case, on that issue here. I have already too long delayed in answering your question, and I will analyze the other cases shortly. At least these will get you started.
The general rule is that no such liability attaches to those circumstances where the damage is reasonable.
The U.S. Sixth Circuit Court of Appeals has spoken on this question. In Bonds v. Cox, 20 F.3d 697 (1994), the police, in executing a search warrant, damaged the plaintiff’s house, “which included broken doors, multilane vinyl siding, a cracked commode, holes in walls, broken dishes and trampled personal belongings.” [At 702]
Although for reasons contained in that case, the Court held that the plaintiff had no reasonable expectation of privacy in the house searched, she did have a § 1983 claim to challenge the damage to her property during the search–“The Fourth amendment protects against a seizure of property even if it occurs in a context in which privacy or interests are not implicated.” [At 702] However, neither that case nor its history indicate its outcome.
But in Bing v. City of Whitewall, Ohio, 456 F. 3d 555 (6th Cir. 2006), the police in exigent circumstances attempted to force a person out of his house on the ground that he was a threat to himself and possibly others, in the process of which they broke a window to throw a bag phone inside, used a battering ram to break down his door, then used two flashbang devices, the second of which burned down the house (the police ultimately shot and killed Bing). Sued by his estate under §§ 1983, 1986, 1888 and state law, the Court held the officers had qualified immunity, and as to the destruction of the house, held that, “For the same reason, the plaintiff’s destruction of property claim based on the house fire is also barred by the officers’ qualified immunity.” [At 569] [Also see 571 for the analysis of the use of the second flashbang device, which caused the fire].
In Wheeler v. City of Lansing, 677 F.Supp.2d 965 (2010), the police damaged an apartment in the execution of a search warrant by making three holes in the walls of the occupant’s apartment and damaging her bedroom doors. She argued that the damage constituted an unreasonable search or seizure under the Fourth Amendment. The Court rejected her claim, reasoning that:
Officers executing search warrants must often damage property in order to perform their duties. Dalia v. United States, 441 U.S. 238, 258 (99 S.Ct. 1682, 60 L.Ed.2d 177] ... 1979. De minimis damage cannot form the basis of a constitutional violation. Streater v. Cox, 2009 WL 1872471 [, *7, 338 Fed.Appx. 470, 477 (6th Cir. 2009 [Kethledge, White, D.J. Polster] [At 984]
I cannot find in Dalia, above, an indication of what, if any, damage was done, but apparently it involved installing bugs pursuant to a search warrant. The Court talks at length about the necessity to break and enter to make covert entry and install electronic devices. In the unreported case of Streater, above, the 6th Circuit held that the breaking of a lock on the defendant’s brief case inside the defendant’s business did not violate the Fourth Amendment.
The U.S. District Court for the Eastern District of Tennessee in the unreported case of U.S. v. Whisnant, 2007 WL 2159298, addressed the question of whether the police “seized” interior walls of the defendant’s residence in violation of the Fourth Amendment by cutting holes in them during the execution of a search warrant. In finding that the answer was no, the Court acknowledged that “Bonds [above] stands for the proposition that the government can be held responsible for damaged caused during the execution of a search warrant because the government, by destroying an individual’s property, effectively seizes that property, which can be a violation of the Fourth Amendment” [At 2], but the Court accepted the report and recommendations of the magistrate judge. The magistrate judge had found that it appeared from the disturbed condition of the walls that there may be things stored behind them, and that upon opening the walls, the police found guns in plastic bags, ammunition and blasting caps.
The magistrate judge rejected the defendant’s claim that the search exceeded the limits of the search warrant, concluding that the search warrant was for the “entire premises ...residence,” that the premises and residence included the walls, and that the warrant’s list of items to be searched for included a body or portions of a body, human blood, purse and keys of the victim, vehicle keys, suitcase, security camera and video cassette tape, .38 caliber Sixth and Wesson Pistol, bombs, gun powder, explosives and bomb components.
“The scope of a lawful search,” continued the Court:
Is defined by the object of the search and the places in which there is probable cause to believe that the items in question may be found. United States v. Ross, 457 U.S. 798, 827 (1982). Accordingly the determination as to weather a search is constitutionally reasonable depends on all of the circumstances surrounding the search or seizure, as well as the nature of the search or seizure itself.
In United States v. Becker, 929 F.2d 442 (9th Cir. 1991), when officers executed a search warrant on a residence an adjacent shop, they noticed what appeared to be a newly-poured concrete pad near the shop. The officers used d jackhammer to remove portions of the concrete slab. Underneath the concrete, officers found and seized evidence of methamphetamine. The Becker court found no constitutional violation, saying that the concrete slab was located within the area of the search warrant and thus, “searching beneath it was clearly within the scope of the warrant.” Id. at 446 Moreover, although the officers had time to obtain an additional warrant for the area under the slab, the court held that it was “unnecessary for them to do so because they already had a warrant to search the premises for precisely the type of evidence found under the slab.” Id. [At 7]
Finally, the Becker court stated that while destruction of property in carrying out a search is “not favored,” reasonable destruction of property does not violate the Fourth Amendment, citing Dalia v. United States, 441 U.S. 238, 258 (1979) (“[o]fficrs executing search warrant on occasion must damage property in order to perform their duty.”). Id. [At 7]
The case law on this issue is in general accord. Reasonable destruction of property to effectuate a search pursuant to a valid search warrant does not violate the Fourth Amendment. What is reasonable depends on the context within which the search takes place. United States v. Weinbender, 109 F.3d 1327, 1330 (8th Cir. 1997) (officer could remove dry wall to expose a hiding spot); United States v. Pugh, No. CR 302CR69, 2003 WL 21220333 (D. Conn. May 21, 2003) (officer could remove covering and search inside of air conditioning unit. [At 7]
I have other cases on damage done to premises in police operations. As the above cases, and others indicate, where damages to the premises is an issue, the damage is treated as a “seizure of property” under the Fourth Amendment, the attendant question being: Was the seizure reasonable under the circumstances.
Sidney D. Hemsley
Senior Law Consultant