U.S. v. Sims

Decision Date22 January 2009
Docket NumberNo. 08-1348.,08-1348.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John Eric SIMS, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Timothy A. Bass, Office of the United States Attorney, Springfield, IL, Eugene L. Miller (argued), Office of the United States Attorney, Urbana, IL, for Plaintiff-Appellee.

Michael J. Zopf (argued), East Wing, Champaign, IL, for Defendant-Appellant.

John E. Sims, Chicago, IL, pro se.

Before BAUER, POSNER, and MANION, Circuit Judges.

POSNER, Circuit Judge.

The defendant, convicted of illegal possession of a gun and sentenced to 30 months in prison, challenges the constitutionality of the search that discovered the gun. He argues that the warrant that authorized it failed to specify with particularity the things the searchers were looking for and therefore violated the Fourth Amendment. He is right that there was a violation but wrong that it invalidates his conviction.

Local police, having reason to believe that there was stolen property in a house (or its garage, or vehicles on the property) occupied by the defendant, presented to a state court judge an application for a search warrant together with an affidavit in support of the application and a draft warrant materially identical to the application. The affidavit listed the stolen goods believed to be on the property as "several items which included a black in color gas grill with the brand name Aussie, a yellow in color welder with `multi-mig' written on the side, a cutting torch with Hobart gauges and chrome in color snap on brand tools with initials GAG engraved." But the list was left out of the application and the draft warrant. The omissions apparently were inadvertent, because after specifying the places to be searched these documents state: "Or any other evidence indicative of a criminal offense of Burglary, Theft or Possession of Stolen Property." Probably the drafter of the warrant intended to list before "or any other evidence ..." the items listed in the affidavit. Perhaps not noticing the omissions, the judge signed the draft warrant and so it was issued and the search conducted accordingly; and it was in the course of the search that the illegal gun was discovered in a bag in the house. Since the bag was large enough to have contained tools that the police were looking for, they were entitled to look inside it and seize any contraband or evidence of crime visible to someone looking inside. E.g., United States v. Eschweiler, 745 F.2d 435, 440 (7th Cir.1984).

The Fourth Amendment states that "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." The requirement of particular description is conventionally explained as being intended to protect against "general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). But it also serves to prevent circumvention of the requirement of probable cause, see Maryland v. Garrison, 480 U.S. 79, 84-85, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987); Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), by limiting the discretion of officers executing a warrant to determine the permissible scope of their search. Thomas Y. Davies, "Recovering the Original Fourth Amendment," 98 Michigan Law Review 547, 576-83 (1999). There might be probable cause to believe that a house was a drug house though not to believe that it contained counterfeit money. But the police might have suspicion short of probable cause for the latter belief and their main aim in searching might be to seize counterfeit money rather than drugs. If probable cause to search for drugs allowed them to search for counterfeit money as well—even if they had already found the drugs—they could conduct that search on the basis of mere suspicion, without probable cause. Or suppose they had probable cause to believe that there was a stolen car on the defendant's property, but in the absence of any specification of the object of the search took the opportunity to search every drawer and other receptacle on the property on the off chance they would find drugs, though they had no probable cause to believe they would. In both cases, unlike a case in which officers simply have a dual motive, see Whren v. United States, 517 U.S. 806, 812-13, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the requirement of particular description of the things to be seized in the search would bar a search that was not based on probable cause—in our examples, the search for counterfeit money.

The warrant in this case lacked a particular description of the things to be seized (if found). Nor did it incorporate by reference the description in the warrant affidavit; incorporation by reference would have sufficed. Groh v. Ramirez, 540 U.S. 551, 557-58, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004); United States v. Stefonek, 179 F.3d 1030, 1033 (7th Cir.1999). Yet as an original matter the defect in the warrant might not condemn the search itself. The Fourth Amendment, read literally at any rate, does not require warrants; it merely restricts them. It does not forbid searches without warrants; it merely forbids unreasonable searches. "There is nothing in the amendment's text to suggest that a warrant is required in order to make a search or seizure reasonable. All that the amendment says about warrants is that they must describe with particularity the object of the search or seizure and must be supported both by an oath or affirmation and by probable cause, which is understood, in the case of searches incident to criminal investigations, to mean probable cause that the search will turn up contraband or evidence of crime." United States v. Garcia, 474 F.3d 994, 996 (7th Cir.2007). "[T]he framers of the Fourth Amendment were more fearful that the warrant would protect the police from the citizen's tort suit through operation of the doctrine of official immunity than hopeful that the warrant would protect the citizen against the police, see [Telford] Taylor, Two Studies in Constitutional Interpretation 23-43 (1969)." United States v. Mazzone, 782 F.2d 757, 759 (7th Cir.1986). See also Payton v. New York, 445 U.S. 573, 607-14, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (dissenting opinion); United States v. Limares, 269 F.3d 794, 799 (7th Cir. 2001) ("the fourth amendment does not of its own force require a warrant for any search. Its text is a limitation on warrants ... stemming from dissatisfaction with the use of warrants by the crown courts during colonial days") (emphasis in original); Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles 3-17, 40-43(1997).

Against this, Professor Davies argues that despite its wording, the only purpose of the Fourth Amendment was to outlaw general warrants, but that the framers, reluctant to recognize any discretion in law-enforcement officers, thought that searches of a home would require a warrant (a specific warrant, that is). Davies, supra, at 715-24; see also Payton v. New York, 445 U.S. 573, 596, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). But whether Davies and the majority in Payton are right, or Telford and Amar and the dissenters in Payton, a search for which a valid warrant could not be obtained, because the police did not have probable cause to search, or to search in all the places, or search for all the things, that they wanted to search in or for, would be unreasonable. The requirements that the constitutional text imposes on warrants define the circumstances that make a search unreasonable. It would not do to allow a judicial officer to issue a search warrant without probable cause but a police officer to conduct a search without either a warrant or probable cause. In the present case, however, the police conducted exactly the same search that they would have conducted had the warrant described with the requisite particularity the things they were searching for. Nor is it remotely likely that the state judge would have refused to sign the warrant had it complied with the Fourth Amendment by listing those things.

So just as in United States v. Stefonek, 179 F.3d 1030 (7th Cir.1999), a case that differs in no material respect from this one, the search was reasonable. But we could not there, and we cannot here, draw the straightforward conclusion that there was no violation of the Fourth Amendment. The Supreme Court, on grounds of policy rather than of text or history—in fact, as we have just noted, in the teeth of the text and possibly of the history of the amendment (depending on whether Taylor or Amar, on the one hand, or Davies on the other, has the better historical case)— has ruled that, though with numerous but immaterial exceptions, a search without a warrant is unconstitutional. (For both the rule and the exceptions, see, e.g., Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006).) The policy is that of reducing the number of unreasonable searches by requiring that a presumably neutral judicial officer screen police searches. E.g., Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (Jackson, J.). "[A]nd although the effective neutrality and independence of magistrates in ex parte proceedings for the issuance of search warrants may be doubted, there is a practical reason for...

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