Breaking through an interior wall was not an unreasonable search under a warrant

The destruction of an interior wall under a search warrant for drugs in “the entire premises” was not an unreasonable search. United States v. Whisnant, 545 F. Supp. 2d 713 (E.D. Tenn. 2008):

The scope of a lawful search is defined by the object of the search and the places in which there is probable cause to believe that the item or items in question may be found. United States v. Ross, 456 U.S. 798, 827, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). Accordingly, the determination as to whether a search is constitutionally reasonable depends on all of the circumstances surrounding the search or seizure, as well as the nature of the search or seizure itself.

In United States v. Becker, 929 F.2d 442 (9th Cir. 1991), when officers executed a search warrant on a residence and adjacent shop, they noticed what appeared to be a newly-poured concrete pad near the shop. The officers used a jackhammer to remove portions of the concrete slab. Underneath the concrete, officers found and seized evidence of methamphetamine. The Becker court found no constitutional violation, saying that the concrete slab was located within the area of the search warrant and, thus, “searching beneath it was clearly within the scope of the warrant.” Id. at 446. Moreover, although the officers had time to obtain an additional warrant for the area under the slab, the court held that it was “unnecessary for them to do so as they already had a warrant to search the premises for precisely the type of evidence found under the slab.” Id.

Finally, the Becker court stated that while destruction of property in carrying out a search is “not favored,” reasonable destruction of property does not violate the Fourth Amendment, citing Dalia v. United States, 441 U.S. 238, 258, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979) (“[o]fficers executing search warrants on occasion must damage property in order to perform their duty”). Id.

The case law on this issue is in general accord. Reasonable destruction of property to effectuate a search pursuant to a valid search warrant does not violate the Fourth Amendment. What is reasonable depends on the context within which the search takes place. United States v. Weinbender, 109 F.3d 1327, 1330 (8th Cir. 1997) (officer could remove dry wall to expose a hiding spot); United States v. Pugh, No. CR. 302CR69, 2003 U.S. Dist. LEXIS 8673, 2003 WL 21220333 (D. Conn. May 21, 2003) (officer could remove covering and search inside of air conditioning unit).

After examining the facts and circumstances of the present case, the Court must conclude that the manner and scope of the search, specifically, the entry into the interior wall, did not render the search, and subsequent seizure of items, unreasonable. The broadly worded search warrant authorized the officers to search “the residence and property … of Douglas V. Whisnant.” The search warrant went on to add, “the search is to include the entire premises … the residence …”.