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Media > Newsletters > Law Enforcement Bulletin > June 2012 > United States v. Burgard — Seventh Circuit Court of Appeals (Illinois, Indiana, Wisconsin), April 2,

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United States v. Burgard — Seventh Circuit Court of Appeals (Illinois, Indiana, Wisconsin), April 2, 2012

Question: Did police violate the Fourth Amendment when they waited six days before getting a warrant to search a suspect’s lawfully seized cell phone?
Quick answer: No, but only because there were legitimate reasons for the delay.
Facts: A friend of defendant Joshua Burgard spoke with a police officer, telling him that Burgard had images of young girls (possibly under 14) on his cell phone and had bragged about having sex with them. The friend agreed to act as an informant and text the officer when he was with Burgard and when Burgard had the phone on him. When the officer later received the text, he stopped Burgard’s car and seized his phone. Burgard then went to the police station and requested a property receipt for his phone.
The officer didn’t immediately apply for a search warrant. Instead, he wrote a report about the cell phone seizure and forwarded it to a cybercrimes detective. Because of scheduling issues, the detective wasn’t able to begin drafting a search warrant affidavit until two days after the phone was seized. On that same day, an armed robbery caused the detective’s attention to shift away from the search warrant. Four days later, the detective and a federal district attorney drafted the warrant application and presented it to a federal magistrate judge, who signed the warrant that day. The detective promptly searched the phone and found numerous sexually explicit images of young girls. Burgard moved to suppress the images because he alleged that the six-day delay in getting a warrant was unreasonable under the Fourth Amendment.
Why the case is important: The Seventh Circuit found that the reasons for the six-day delay were not enough to find the phone’s seizure and later search a Fourth Amendment violation. Warrantless seizures of personal property generally are unreasonable unless law enforcement obtains a search warrant within a reasonable period of time after the seizure. Here, the court found the delay was reasonable because the detective was inexperienced in drafting cell phone search warrants. For that reason, he took a little longer to draft the warrant application, and he enlisted the help of a district attorney. Such careful, attentive police work shouldn’t be discounted, even if it appears that the detective could have moved more quickly.
Keep in mind: You can seize a suspect’s personal property without a warrant as long as you get a warrant within a reasonable time after the seizure. There is no bright-line test to know when a delay has become unreasonable, but if you seize a suspect’s personal property without a warrant, try to get one as soon as reasonably possible. The longer you keep the property without getting a warrant, the more likely a court will suppress the incriminating evidence you find.
Click here to read the entire opinion.