D.C.: Four day delay in getting SW for car and then searching it was unreasonable and interfered with def’s possessory interests

A four day delay between the seizure of defendant’s car and obtaining a search warrant for it unreasonably infringed on defendant’s possessory interest in the car. The exclusionary rule should be applied here because the delay was all the actions of the police in being dilatory. And, this is so even though a search warrant may not have even been necessary for the search. United States v. Bumphus, 2020 D.C. App. LEXIS 179 (May 21, 2020):

This court, until now, has not endorsed the balancing test articulated in Place and applied in Johns to evaluate a constitutional challenge to the delay between a seizure and search. But federal courts have done so, and in a number of instances they have concluded suppression was warranted. The government looks to federal appellate decisions reaching the opposite conclusion. But in holding that suppression was not warranted, those courts do not reject a balancing of interests in line with Johns and Place; rather, examining different facts, they simply conclude that the balance is in the government’s favor. These and other decisions cited by the government cannot reasonably be read to support the government’s interpretation of Johns or its broader assertion that any delay in the search of a car seized based on probable cause is constitutionally insignificant.

Balancing the interests in this case, we look first to the government’s justification for the actions of the police. There is no dispute that the police had probable cause to seize Mr. Bumphus’s car. But viewing the evidence in the light most favorable to the trial court’s ruling, we see nothing between that seizure and the search four days later. To begin, Sergeant Bagshaw’s testimony that he was required to get a search warrant because no one would cooperate at the scene is incorrect. For almost a century it has been clear that the police have the right and ability to search a vehicle, without consent or a warrant, based on probable cause. See supra note 4. Sergeant Bagshaw’s asserted understanding that he could not get a warrant on the weekend because there was no qualifying “emergency” is likewise incorrect: as the trial court stated, judges in the Superior Court work on weekends and “hear emergency matters as they relate to arrests and search warrants.” Lastly, Sergeant Bagshaw agreed without reservation or explanation that he continued to “h[o]ld on to the car without bothering to search it” on the Monday—a business day—after the weekend.

. . .

The government argues that Supreme Court cases holding that “evidence obtained in good faith and reasonable reliance upon a warrant need not be suppressed, even if the warrant is later determined to be unsupported by probable cause or otherwise defective,” “demonstrate” that “exclusion of the gun and ammunition [seized] in this case was unwarranted.” There are two problems with this argument. First, the trial court did not find the police acted in good faith. To the contrary, unable to “glean even the slightest shred of diligence from Sergeant Bagshaw’s testimony,” the trial court found that he had acted with “outright disregard” for Mr. Bumphus’s rights. Effectively, the court determined that the officer gratuitously waited four days to seek a warrant giving him authority he already had to search Mr. Bumphus’s car, and in so doing acted with gross negligence (if not deliberately) to withhold important personal objects—the car and its contents—from Mr. Bumphus. See Davis, 564 U.S. at 238 (reaffirming that “[w]hen the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the deterrent value of exclusion is strong” and exclusion is appropriate (internal quotation marks omitted)); see also United States v. Burgard, 675 F.3d 1029, 1033 (7th Cir. 2012) (explaining that “[w]hen police neglect to seek a warrant without any good explanation for the delay, it appears that the state is indifferent to searching the item and the intrusion on an individual’s possessory interest is less likely to be justifiable”).

Second, the existence of a later-acquired warrant is factually and legally immaterial in our assessment of the asserted good faith of law enforcement in this case. When Sergeant Bagshaw extended the seizure of Mr. Bumphus’s car and delayed its search from Friday evening to Tuesday when he finally applied for a warrant, he did not rely on this warrant, which did not yet exist. Nor did the magistrate judge to whom he ultimately submitted the warrant application implicitly approve the preceding delay by issuing the warrant. As the trial court found, “the magistrate judge who issued the warrant had no information regarding the necessity of the delay or Sergeant Bagshaw’s lack of diligence.” Further, this court has held that a later-obtained warrant generally “d[oes] not operate to attenuate [an] illegality” preceding its issuance. Evans v. United States, 122 A.3d 876, 886 (D.C. 2015).

Alternatively, citing Hudson v. Michigan, 547 U.S. 586 (2006), the government challenges the causal relationship between the Fourth Amendment violation in this case and the discovery of the evidence, and argues that suppression is not warranted because the “delay in seeking a warrant had no effect whatsoever on the ultimate discovery of the evidence.” Hudson is inapposite. In that case, the Court found that the violation of the knock-and-announce requirement in the execution of a valid warrant “was not a but-for cause of obtaining the evidence.” Id. at 592 (emphasizing that the police were acting on an already-issued warrant based on probable cause, id. at 588, 600–01). Here, the extended warrantless seizure was an integral part of the but-for causal chain of events leading to the recovery of the gun and ammunition in this case and itself caused the violation of Mr. Bumphus’s Fourth Amendment possessory interests in the car and the personal items it contained. See supra Part III. And, as explained above, the fact that Sergeant Bagshaw subsequently conducted a delayed search under the guise of an unnecessary warrant did not attenuate the taint of the earlier Fourth Amendment violation.