Posted by Orin Kerr:
Does it Violate a Person's Fourth Amendment Rights to Wrongfully Issue an
Arrest Warrant That is Never Executed?:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253674921
The [1]BLT has an interesting report on a case in the DC Circuit that
raises a fascinating Fourth Amendment issue: Does it violate a
person's Fourth Amendment rights if the government wrongfully obtains
an arrest warrant authorizing the person's arrest if the warrant is
quickly withdrawn and never actually executed? More specifically, if
the person claims that the existence of the unlawful arrest warrant
caused him harm, can he recover damages under the Fourth Amendment
even though he was never searched or seized?
It's an interesting question, and off the top of my head, I don't
think I have heard of another case quite like it. On one hand, the
plain text of the Fourth Amendment prohibits the issuance of a warrant
not based on probable cause and not sufficiently particular: That
seems to focus attention on the issuance of the warrant. On the other
hand, modern Fourth Amendment doctrine generally holds that the Fourth
Amendment only regulates searches and seizures, and there was no
search or seizure here.
Perhaps the most analogous case is [2]Groh v. Ramirez, a case
involving the execution of a warrant that was later discovered to be
defective. The police obtained the warrant, but in the place of the
warrant where the agent was supposed to type in the items to be
seized, he accidentally typed in the place to be searched. It seems
that no one noticed the error until after the search was executed:
Notably, the affidavit and application both contained particular
descriptions of the items to be seized, and the warrant was actually
executed in a reasonable way. In a 5-4 decision, the Court held that
the Fourth Amendment was violated and that the officer who obtained
and executed the warrant could be held personally liable because the
search was not accompanied by a valid warrant.
I 'm not sure which way Groh cuts. On one hand, the opinion suggests
that the harm was the search of the plaintiff's home without the
required warrant. According to the Court, the lack of a valid warrant
transformed the search into an unlawful warrantless search, which
violated the Fourth Amendment. If you take that view, the Fourth
Amendment violation would seem to be the search, not the issuance of
the warrant. On the other hand, Groh doesn't necessarily rule out
liability for the mere issuance of the unlawful warrant. Plus, the
actual search was performed in the same way as it would have been
performed had the warrant been constitutional: No one knew the warrant
was bad until the next day. In light of that, it seems a little
strange to say that the unconstitutionality was in the search rather
than the warrant.
Anyway, I don't have strong views one way or the other on the merits
of this one, but I thought readers would find it interesting.
References
1.
http://legaltimes.typepad.com/blt/2009/09/dc-circuit-hears-fourth-amendment-case-on-withdrawn-warrant-.html
2. http://www.law.cornell.edu/supct/html/02-811.ZO.html
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