Circuit Remands Case for Determination of Whether the Delay In Obtaining A Search Warrant Violated the Fourth Amendment
In a recent summary order in United States v. Smith, 17-2446, the Second Circuit (Katzmann, Kearse, Meyer by designation) remanded a case for additional fact-finding on a narrow issue relating to the duration of the time it took police to obtain a warrant to search the contents of a tablet computing device following the lawful warrantless seizure of the tablet.
Smith was convicted on six counts of possession of child pornography, pursuant to a conditional guilty plea that allowed him to challenge the denial of his suppression motion. Smith was found by state troopers sleeping in his car on the side of the road, apparently intoxicated, with the engine turned on. The officers searched the car for Smith’s identification and registration. During the course of their search, officers observed a tablet on the passenger seat on which one officer believed that he saw child pornography. Smith was arrested. After one month’s time, the state police obtained a search warrant for the device, and discovered 50 videos and 16 images of child pornography. Based upon the child pornography found on the device, police obtained additional search warrants for Smith’s residence, leading to the discovery of more child pornography. Smith’s pretrial suppression motion was denied.
Smith raised several arguments on appeal relating to the denial of the motion, but the court remanded only on the issue of the delay between the seizure of the tablet and police obtaining a warrant to search it. Under the Fourth Amendment, police may not unreasonably delay in seeking a warrant to search lawfully seized property. Courts consider a variety of factors in determining whether the delay is unreasonable: the length of the delay, the importance of the seized property to the defendant, whether the defendant had a reduced property interest in the seized items, and the strength of the state’s justification for the delay. The district court, in a brief footnote, held that the delay here was not unreasonable, pointing to the large geographic area covered by the state trooper and other reasons offered by the state trooper, which it did not enumerate.
The Second Circuit remanded, holding that “a fuller explanation and further findings [were] warranted.” The geographic area covered by the state trooper was relevant to the analysis, but not determinative. Nor did the trooper’s testimony make clear whether his caseload justified the delay. Nor was there any finding with respect to the defendant’s need for the tablet to be returned. The court concluded that it could not “make the necessary fact-bound determination on the record before [it].” On remand, it directed the district court to “conduct the fact-bound, totality-of-the-circumstances inquiry necessary to determine whether the state’s actions were reasonable and then set forth the basis for its conclusions.” After further proceedings in the district court and further appellate briefing, the panel will continue its analysis of whether the suppression motion should have been denied.
The Circuit’s summary order is a useful reminder that even when property is lawfully seized, unreasonable delay in obtaining a warrant to search it may constitute a violation of the Fourth Amendment. Usually, law enforcement can obtain a search warrant for a seized device fairly quickly. Accordingly, it raised a concern in the Circuit that law enforcement here took 31 days to obtain a search warrant for the tablet. Reasonableness is not a “one size fits all” proposition, and appears to depend upon factors such as the resources of a particular department and the defendant’s need to access the seized property. Smith demonstrates that the Circuit is willing to scrutinize the explanation offered by law enforcement for delay in obtaining a search warrant.