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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.


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