IA: Taking alleged victim to scene of search to let him decide what to seize violates Fourth Amendment

Taking the alleged victim to the scene of execution of the search warrant and letting him dictate what else was seizable as plain view denied defendants qualified immunity in a state Fourth Amendment § 1983 case filed in state court. Debrower v. City of Bremer, 0-316 (Iowa July 14, 2010)*:

We conclude Deputy Miller’s conduct in seizing the additional eleven trees based on Burkle’s new allegations of ownership after he spotted newly-planted trees as he was leaving the property and based on whether the trees could be pulled out of the ground during a night-time search engenders a fact issue on whether “the incriminating feature of the object was immediately apparent.” Burkle’s handwritten statement clearly asserts “34 trees” were stolen “about 3 weeks ago” and thirty-four trees had already been seized under the warrant. Three weeks is sufficient time to accurately identify the number of trees stolen. Further, defendants provide no authority to support a seizure of property not listed in the warrant based upon unsworn claims made by a civilian participating in the search. Because a fact issue remains, summary judgment was improper. See Price-Cornelison v. Brooks, 524 F.3d 1103, 1117-18 (10th Cir. 2008) (stating “whether a police officer has actually aided a private party’s seizure of property ‘is particularly fact-sensitive’” and the right to avoid state participation in private party’s wrongful seizure of property was clearly established in 2003). Since the Bailey decision in 1991, Iowa officers knew “that the officers’ conduct in executing a search warrant is subject to review and an officer may face section 1983 liability for executing a warrant in an unreasonable manner.” Bailey v. Lancaster, 470 N.W.2d 351, 358 (Iowa 1991). A factual issue exists concerning the reasonableness of the officers‟ actions based on existing law.

Hat tip to appellant’s counsel who forwarded it.