D.Guam: Freezing scene for 33 hours to get SW unreasonable

The police kept defendants from their house and home office while they procured a search warrant, 33 hours later. The officer getting the search warrant was not told to hurry it up. One defendant was an insulin-dependent diabetic, and officers would not permit him access to get it. The search and detention of the wife for the duration was unreasonable. United States v. Song Ja Cha, 2009 U.S. Dist. LEXIS 129278 (D. Guam February 19, 2009):

Applying the third factor to Mrs. Cha, the court notes that she was detained throughout the entire 33-hour period. Her possessory interest in her home can be said to be minimal. The same however, cannot be said regarding her possessory interest in the business establishment. While she may have been detained and arrested, she could have authorized the re-opening of the business and could have requested her husband to do so. Because of the seizure, the business was not able to open. While the allegations that she operated a prostitution house constitute a criminal offense, the opening of the lounge for the sale of alcoholic spirits is not illegal.

Finally, in applying the fourth factor the court finds 33 hours until procurement of the search warrant to be unreasonable. In McArthur, the Court found two hours to be a reasonable time frame in restricting the defendant from reentering his home without a police escort while the police diligently sought the warrant. In this case, it appears from the testimony presented that the police officers did not know they had a duty to diligently move to secure the search warrant. More importantly, Officer Perez, the officer tasked with drafting the search warrant, did not know that he had a duty to diligently pursue the drafting and eventual approval of the warrant by a detached magistrate. He had facts within his knowledge with which he could draft a search warrant with probable cause since he was at the briefing on the morning of January 13 when certain information was first divulged. But not knowing there was a sense of urgency, he waited until the police reports were all completed before he began drafting the warrant application. Officer Perez cannot solely be faulted for delaying the drafting of the information because he did not know there was urgency to do so. He testified that had he known there was a sense of urgency, he would have acted much sooner. But there was a sense of urgency and a duty of diligence because the possessory interests of Mr. Cha to the home and Mrs. Cha to the business enterprise were being interfered with by the police.