United States v. Burgard

• Decision Date: 02 April 2012
• Docket Number: No. 11–1863.,11–1863.
• Citation: 675 F.3d 1029
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Joshua BURGARD, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

675 F.3d 1029

UNITED STATES of America, Plaintiff–Appellee,

v.Joshua BURGARD, Defendant–Appellant.

No. 11–1863.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 14, 2011.Decided April 2, 2012.

Michael Jude Quinley (argued), Attorney, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff–Appellee.

Todd M. Schultz (argued), Attorney, Office of the Federal Public Defender, East St. Louis, IL, for Defendant–Appellant.

Before WOOD, TINDER, and HAMILTON, Circuit Judges.

WOOD, Circuit Judge.

Expecting to find evidence of child pornography, police officers seized Joshua Burgard's cell phone without a warrant. At that point, however, they seemed to have lost their sense of urgency: they did nothing with the phone right away and allowed six days to elapse before they applied for a search warrant. Once they had the warrant in hand, they searched the phone and, as anticipated, they found sexually explicit images of underage girls. Burgard pleaded guilty to two counts of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2), and was sentenced to 210 months' imprisonment and 15 years of supervised release.

On appeal Burgard challenges only the district court's denial of his motion to suppress the photographs found on the phone. The pictures should have been excluded, in his view, because the police tarried too long before obtaining the warrant. Although we agree with Burgard that the officers did not act with perfect diligence, we do not find the delay here to be so egregious that it renders the search and seizure unreasonable under the Fourth Amendment. We therefore affirm.

I

On Wednesday, January 6, 2010, a friend of Burgard approached Sergeant Louis Wilson of the Smithton, Illinois, Police Department. The friend told Wilson that he had seen sexual images of young girls (possibly aged 14 or younger) on Burgard's cell phone, and that Burgard, 21 years old at the time, had bragged about having sex with them. This friend agreed to serve as a confidential informant and to text Wilson later that night if he was with Burgard and Burgard had the phone. The informant followed through with the plan: that night, he texted Wilson that he and Burgard were driving together in the informant's car. Wilson then stopped the informant's car and seized Burgard's phone. Burgard voluntarily went to the police station where Wilson entered the phone into evidence and gave Burgard a property receipt.

Wilson did not immediately apply for a state search warrant. Instead, he wrote a report about the seizure and forwarded it to Detective Mark Krug in nearby Collinsville, because Krug was assigned to work part-time with the FBI's Cyber Crimes Task Force. Wilson and Krug worked different shifts, however, and so Krug did not receive Wilson's report until the next day. After Krug read the report, he tried to contact Wilson to learn more details, but again the shift differences got in the way and the two were unable to speak until later that night. The next day, Friday, January 8, Krug contacted the United States Attorney's Office to inform it that he planned to draft a federal search warrant for the phone. An Assistant United States Attorney (AUSA) told him to proceed with drafting the affidavit.

Some time that same day, an armed robbery occurred in Collinsville. Because the armed robbery was more pressing, Krug put the cell phone warrant aside and worked on the armed robbery investigation. (We note at this juncture that Collinsville was, as of the time of the 2010 Census, a town of 26,016; it is located in rural Madison County, Illinois, and is the self-proclaimed Horseradish Capital of the World. See The Global Gourmet, http:// www. globalgourmet. com/ food/ egg/ egg 1296/ horscap. html# axzz1p7ZbAO2x, last visited March 28, 2012.) Krug may have continued to work on the robbery on Saturday, or he may have taken that day off. But by Sunday, he was able to return to Burgard's case and draft the affidavit. On Monday morning, January 11, he sent his draft to the AUSA and the two went back and forth making edits. The next day, the AUSA finally presented a completed warrant application to the federal magistrate judge, who signed the warrant that day. Krug promptly searched the phone pursuant to the warrant and found numerous sexually explicit images of young girls.

Burgard conceded that the initial warrantless seizure of the phone was lawful (because of exigency and probable cause), but he sought to suppress the images on the basis of the six-day delay. The district court denied his motion to suppress on two grounds: (1) it did not find the delay to be unreasonable, and (2) even if it were, the good-faith exception to the exclusionary rule applied. Burgard pleaded guilty but reserved his right to challenge the denial of the suppression motion.

II

This case requires us to address one narrow question: did the six-day delay in securing a warrant render the seizure of Burgard's phone unreasonable for purposes of the Fourth Amendment? (All parties agree that the warrant was necessary, and so we make no comment on that point. The search here was of the more invasive type excluded from our discussion in United States v. Flores–Lopez, 670 F.3d 803, 810 (7th Cir.2012).) In general, “seizures of personal property are ‘unreasonable within the meaning of the Fourth Amendment ... unless ... accomplished pursuant to a judicial warrant.’ ” Illinois v. McArthur, 531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (quoting United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). An officer may temporarily seize property without a warrant, however, if she has “probable cause to believe that a container holds contraband or evidence of a crime” and “the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.” Place, 462 U.S. at 701, 103 S.Ct. 2637.

Even a permissible warrantless seizure, such as the initial seizure here, must comply with the Fourth Amendment's reasonableness requirement. Thus, the Supreme Court has held that after seizing an item, police must obtain a search warrant within a reasonable period of time. See, e.g., Segura v. United States, 468 U.S. 796, 812, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (“[A] seizure reasonable at its inception because based on probable cause may become unreasonable as a result of its duration.”). We reject the notion that anything in this court's opinion in Lee v. City of Chicago, 330 F.3d 456 (7th Cir.2003), undermined Segura 's holding. In Lee we held that an individual cannot challenge the police's continued retention of his vehicle for failure to pay impound fees on Fourth Amendment grounds; he could only challenge the initial seizure. See 330 F.3d at 465–66. Here, in contrast, the police needed within a reasonable time to obtain a warrant before they could undertake a new search and seizure—that of the contents of the cell phone. This is the essence of Burgard's complaint, not the retention point that was central to Lee. See United States v. Martin, 157 F.3d 46, 54 (2d Cir.1998) (“[W]here officers have probable cause to believe container contains contraband, it ‘may be seized, at least temporarily, without a warrant.’ ”) (quoting in parenthetical United States v. Jacobsen, 466 U.S. 109, 121, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). No other recognized exception to the warrant requirement covered the police detention of the contents of Burgard's phone.

When officers fail to seek a search warrant, at some point the delay becomes unreasonable and is actionable under the Fourth Amendment. Moya v. United States, 761 F.2d 322, 325 n. 1 (7th Cir.1984) (“Even if the officers had probable cause to believe Moya's bag contained contraband, there would be a question whether the three hour detention of the bag before seeking a search warrant was reasonable.”). See generally Phillip B. Griffith, Thinking Outside of the ‘Detained’ Box: A Guide to Temporary Seizures of Property Under the Fourth Amendment, Army Lawyer, Dec. 2009, at 11, 13 (“Once government agents establish probable cause, this accordingly triggers the obligation to diligently pursue an authorization to search the property.”). We review the district court's decision about the reasonableness of the delay prior to the issuance of the warrant de novo, see United States v. Richmond, 641 F.3d 260, 261–62 (7th Cir.2011). The government does not argue that the magistrate judge was told about the length of the delay, and so we have not been asked to give special deference to any finding relating to its reasonableness (or lack thereof). See United States v. McIntire, 516 F.3d 576, 578 (7th Cir.2008).

A

There is unfortunately no bright line past which a delay becomes unreasonable. Instead, the Supreme Court has dictated that courts must assess the reasonableness of a seizure by weighing “the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Place, 462 U.S. at 703, 103 S.Ct. 2637; see also McArthur, 531 U.S. at 331, 121 S.Ct. 946 (instructing courts to “balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable”).

On the individual person's side of this balance, the critical question relates to any possessory interest in the seized object, not to privacy or liberty interests. “A seizure affects only the person's possessory interests; a search affects a person's privacy interests.” Segura, 468 U.S. at 806, 104 S.Ct. 3380. The longer the police take to seek a warrant, the greater the infringement on the person's possessory interest will be, for the obvious reason that a longer seizure is a greater infringement on possession than a shorter one. But unnecessary delays also undermine the criminal justice process in a more general way: they prevent the...