Fourth Amendment Rights Without Remedies: Split Panel Holds That Delayed Warrant Was Unreasonable, But Exclusionary Rule Does Not Attach
In United States v. Smith, the Second Circuit (Katzmann, Kearse, Meyer, by designation) issued a split opinion weighing whether a month-long delay between authorities’ seizure of a tablet computer and their application for a search warrant violated the Fourth Amendment. The full panel upheld the conviction, but by different routes. The majority opinion found a Fourth Amendment violation, but held that evidence from the tablet should not be suppressed because the delay was due to “isolated negligence,” and thus the exclusionary rule did not attach. Judge Kearse wrote separately, explaining her view that the month-long delay did not violate the Fourth Amendment, largely because the investigating officer had other demands on his time. Speaking with one voice, the panel also rejected substantive and procedural reasonableness challenges to the 212-month child pornography sentence. The opinion highlights the extreme difficulty in mounting suppression challenges—both in persuading jurists that law enforcement officers have acted improperly, and in ultimately winning suppression under the vanishing exclusionary rule. The panel applies controlling law in its Fourth Amendment analysis, making it fair to ask whether the legal system provides optimal deterrence of constitutional violations.
In 2014, an officer in Keene, NY (the home of Mt. Marcy, the tallest of the Adirondack Mountains) encountered a car pulled off the side of the road, with the unresponsive Defendant Kirkland Smith inside. Smith was visibly intoxicated, and unable to speak coherently. After Smith exited the vehicle, the officer attempted to check the glove compartment for identification. At that point, the officer noticed a tablet computer on the passenger seat, with an image on the screen that appeared to be potential child pornography. After contacting dispatch and learning that Smith was a registered sex offender, the officer seized the tablet. By the time of the seizure, the tablet’s screen was off and the potential child pornography was no longer visible. Smith was then arrested for driving under the influence.
The next day, another officer, Kyle Kirby, visited Smith’s home, and sought Smith’s consent to search the tablet. Smith declined. Kirby then waited 31 days to seek a search warrant. Once searched, the tablet was found to hold dozens of videos and images of child pornography. Authorities then searched Smith’s residences, where additional child pornography was found.
Smith was subsequently indicted on federal charges, and filed a motion to suppress, arguing that police lacked probable cause to seize the tablet in the first instance, and that the delayed search warrant application violated the Fourth Amendment. The motion to suppress was denied in full, and Smith entered a conditional guilty plea, preserving his right to appeal the suppression ruling. In 2019, the same panel of the Second Circuit found that the officer’s testimony—to the effect that a potential child pornography was visible on the unlocked tablet—sufficed to create probable cause to seize the tablet, but remanded to the district court to conduct an evidentiary hearing on the question of whether the officers waited an unreasonable amount of time to seek the warrant. United States v. Smith, 759 F. App’x 62 (2d Cir. 2019) (summary order). On remand, the district court conducted an additional evidentiary hearing, and re-affirmed that the delayed search warrant application was reasonable.
Majority Opinion – Fourth Amendment Discussion
The majority began its opinion with a harsh assessment of the month-long delay in applying for a search warrant. It analyzed the reasonableness of the delay under a four factor test, looking to “(1) the length of the delay, (2) the importance of the seized property to the defendant, (3) whether the defendant had a reduced property interest in the seized item, and (4) the strength of the state’s justification for the delay.” Though the majority analyzed each factor independently, it underscored the importance of “reckoning with the length of the delay itself,” and explained that a month-long delay was simply too long—such a delay “well exceeds what is ordinarily reasonable.” The majority expressed an abstract concern about the trove of personal data that might be held in the device, noting that, generally, cell phones and other computers contain all manner of sensitive data that is “deeply personal.” In this instance, Smith had not asked for his tablet to be returned, and did not otherwise articulate a strong interest in his computer, tilting this factor in the government’s favor. (One cannot help but wonder if Smith’s diminished interest in the return of his tablet computer was the cause of a strategic desire to distance himself from the incriminating and disturbing evidence contained within the tablet).
With regard to the police’s justification for the delay, the majority took a dim view of the police’s invocation of other obligations as explaining the lagging application. The majority found that the record showed “very little investigation” took place between the seizure of the tablet and the ultimate application for the search warrant. The majority also eschewed general appeals to an officer’s heavy caseload or large geographic assignment, finding that there was no “particular investigation or police duty that specifically delayed” the warrant application. The majority reasoned that accepting this officer’s workload as sufficient for a month-long delay might well permit extreme delays in most cases:
[T]his case involves an investigator with two dozen cases on his docket in a predominantly rural corner of upstate New York. If we were to conclude that the general press of business for this investigator with this caseload is reason enough to excuse a month-long delay in applying for a search warrant, it is hard to imagine why even longer delays would not become the new “normal” for investigators in areas with far larger caseloads and congested traffic conditions.
Balanced together, the majority found that the four factors demonstrated that the police unreasonably delayed the search warrant application, in violation of the Fourth Amendment.
But all for naught, so far as Smith was concerned. Though the majority admonished the police’s conduct in no uncertain terms, they nonetheless found that the exclusionary rule should not attach. The majority observed that under Herring v. United States, 555 U.S. 135, 144 (2009), the exclusionary rule does not apply to every Fourth Amendment violation, but instead only where “[police] violated the Constitution deliberately, recklessly, or with gross negligence, or if a constitutional violation is the product of recurring or systemic negligence.” The inquiry turns on “whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances.” Looking to precedents nationwide, the majority noted several conflicting decisions on the reasonableness of lengthy delays in warrant applications. The majority found that “an objectively reasonable officer in Kirby’s position should have realized that by waiting a month he was perilously near the constitutional line,” but, because of the mixed precedents, the majority was “not convinced that an objectively reasonable officer would have known that the delay amounted to a violation of the Fourth Amendment.”
Accordingly, while the majority initially had harsh words for the month-long delay— that the delay “well exceeds what is ordinarily reasonable”—it nonetheless found that a reasonable officer would not actually know that such a delay was improper. The majority framed this apparent tension as laying the groundwork for future suppression challenges, asserting that the opinion “clarified principles . . . that shall guide law enforcement officers . . . [and] inform the application of the exclusionary rule in future cases.” Thus, in a case that involves facts occurring after the issuance of this opinion, a defendant can argue that the officer should have known that a month-long delay is constitutionally inappropriate, permitting the exclusionary rule to attach where that timeframe is exceeded.
Judge Kearse’s Concurrence
Judge Kearse wrote separately to explain that she did not view the month-long delay as unreasonable. She first narrowed the applicable timeframe from 31 days to 19, based on the days that the officer reported for duty, seeing no reason “to tax the responsible officer for the days he was not scheduled to work.” Judge Kearse then faulted the majority for declining to give “any apparent consideration to [the officer’s] diligence in handling his other casework.” She observed that the officer was solely responsible for 24 criminal cases, and found no reason to “second-guess” the officer’s view “as to how, reasonably, to prioritize his duties.” Judge Kearse also faulted Smith for failing to ask for his tablet’s return. Thus, she concluded, there was no Fourth Amendment violation on these facts.
The full panel joined together in rejecting Smith’s arguments pertaining to his sentence. At the sentencing hearing, a victim testified that Smith had sexually abused her as a child—though the abuse had not formed the basis of any charge. Smith argued that the district court erred in hearing and crediting the testimony. The Second Circuit panel found no basis to upset the district court’s findings, citing the broad deference afforded to sentencing courts in credibility determinations and consideration of available information. The panel also summarily disposed of Smith’s arguments regarding the imposition of U.S.S.G. § 2G2.2, which increases penalties where a defendant is found to engage in a pattern of child sexual exploitation. The panel noted that it has expressed concern about the imposition of that penalty against defendants that merely possess child pornography—but that its concerns did not extend to instances where there is evidence of “actual sexual abuse of children.” Finally, the panel rejected Smith’s substantive reasonableness argument, noting the high standard of review.
Though this opinion may lay the groundwork for future Fourth Amendment challenges based on a delayed warrant application, it is a clear testament to the difficulty of winning such an argument in the district court or on appeal. This case is not the most sympathetic one for enforcement of constitutional rights—the crime is serious and disturbing, and one that carries a heavy punishment. Still, the Supreme Court’s pairing back of the exclusionary rule has resulted in many cases such as this, where the defendant’s rights are found to have been violated, but there is no remedy if the violation was not deliberate, egregious, or otherwise the product of systemic failure. Thus, in cases like this, where officers appear to have simply neglected their duties, but there is no indication that the police department as a whole has acted in dilatory fashion, defendants will have no recourse where their possessions are seized and retained for an unreasonable length of time.
Further, while the majority appears to have set out to clarify the law on reasonable delay in warrant applications, not clear that the decision will have that effect. First, the majority was willing to look beyond the Second Circuit to formulate a view of what a reasonable officer may understand to be a permissible length of delay. As a result, even if this opinion clarifies the law in the Second Circuit, it is hard to discern how, absent a Supreme Court opinion, the case law would become clear nationwide on the appropriate standards—decisions from other circuits will likely remain a mixed bag, which, by the logic of this opinion, would seemingly permit a reasonable officer to fail to recognize that a month-long delay is a Fourth Amendment violation. It is also worth noting that this approach stands in contrast to qualified immunity, for example, where Second Circuit precedent alone will usually suffice to determine whether an officer violated clearly established law, see Burns v. Martuscello, 890 F.3d 77, 94 (2d Cir. 2018). Taken together, the limited reach of the exclusionary rule and the qualified immunity doctrine do not sufficiently deter police officers from violating constitutional rights. From a doctrinal perspective, it is hard to see the current system as vindicating the interests behind the Fourth Amendment. See Akil Reed Amar, “Fourth Amendment First Principles,” 107 Harv. L. Rev. 757 (1994) (proposing an alternative Fourth Amendment regime, and stating that the Fourth Amendment “is a priceless constitutional inheritance, but we have not maintained it well” and noting that there are “at least eight historical and commonsensical exceptions to the so-called warrant requirement”).
Second, the split within the panel suggests that even within the Second Circuit, there is no uniform rule that officers have acted unreasonably in circumstances such as those presented here. The dissenting opinion weighed the competing concerns differently than did the majority, emphasizing the demands on the officer’s time, rather than the detriment to the defendant as his possessory interest in his tablet was neglected. Winning suppression cases, which requires the defendant to convince the court that officers have acted unreasonably, remains an uphill battle.
By Abigail Marion and Harry Sandick
 By analogy, in the area of qualified immunity, the Second Circuit has taken a different view on what it means for a legal rule to be clearly established. Compare Edrei v. Maguire, 892 F.3d 525, 540 (2d Cir. 2018) (“But that is like saying police officers who run over people crossing the street illegally can claim immunity simply because we have never addressed a Fourteenth Amendment claim involving jaywalkers.”) with Corbitt v. Vickers, 929 F.3d 1304 (11th Cir. 2019) (holding that a child’s right not to be accidentally shot in the leg was not clearly established), cert. denied, 2020 WL 3146693 (U.S. Jun. 15, 2020).