NH: Bringing Humane Society to aid in animal maltreatment search not unreasonable

Officers bringing along non-law enforcement Humane Society workers to aid in an animal maltreatment search warrant was reasonable. State v. Fay, 2020 N.H. LEXIS 198 (Dec. 2, 2020):

We have not previously considered the extent to which it is constitutionally reasonable for the police to involve civilians when executing search warrants. We begin our analysis by noting that “[f]ederal constitutional law does not proscribe the use of civilians in searches. In fact, Congress has explicitly authorized the practice, and courts have repeatedly upheld the practice.” Bellville v. Town of Northboro, 375 F.3d 25, 32 (1st Cir. 2004) (citation omitted); see 18 U.S.C. § 3105 (2018) (“A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.”). In New Hampshire, RSA 595-A:8 states: “An officer executing a search warrant may take with him suitable assistants and suffer no others be with him.” RSA 595-A:8 (2001). Thus, the New Hampshire Legislature, in a manner similar to Congress, has authorized officers executing search warrants to take with them “suitable assistants.” Id.; see Bellville, 375 F.3d at 32.

That civilian accompaniment is not flatly barred, as a matter of constitutional or statutory law, when executing a search warrant does not end our inquiry, of course, for such accompaniment will not be reasonable in every case. See, e.g., Richards v. Wisconsin, 520 U.S. 385, 394 (1997) (reasonableness of manner in which searches are conducted must be judged on case-by-case basis). To that end, “[c]ourts have articulated guidelines for evaluating police involvement of citizens in searches under the Fourth Amendment’s reasonableness standard.” Bellville, 375 F.3d at 33. In Wilson v. Layne, 526 U.S. 603 (1999), the United States Supreme Court held that “it is a violation of the Fourth Amendment for police to bring … third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant.” Wilson, 526 U.S. at 614. It was undisputed in Wilson that the civilians who accompanied the officers — newspaper reporters — did not assist the police in executing the warrant. See id. at 607, 611. The reporters were merely brought along “as part of a … ride-along policy.” Id. at 607.

Wilson stands for the proposition that it is constitutionally unreasonable for the police to bring civilians into a home when executing a warrant when the involvement of the civilians does not aid in the execution of the warrant. See id. at 614. “Police cannot invite civilians to perform searches on a whim . . . .” United States v. Sparks, 265 F.3d 825, 832 (9th Cir. 2001), overruled on other grounds by United States v. Grisel, 488 F.3d 844 (9th Cir. 2007). “[W]here [civilian] assistance is rendered in aid of a warrant,” however, the civilian involvement tends to be within “the bounds of reasonableness.” Bills v. Aseltine, 958 F.2d 697, 706 (6th Cir. 1992); see also Bellville, 375 F.3d at 33 (stating that, for civilian involvement to be reasonable, “[t]he civilian must have been serving a legitimate investigative function,” and “the officers must have some demonstrable need for the presence of the civilian”). In fact, “[c]ivilian searches are sometimes more reasonable than searches by officers.” United States v. Bach, 310 F.3d 1063, 1067 (8th Cir. 2002). For example, “a civilian may possess a peculiar expertise or knowledge regarding the means of retrieval or identification of items covered by a warrant, and … permitting civilian assistance in such circumstances [may] actually enhance[] the reasonableness of the search by lessening its intrusiveness.” Com. v. Sbordone, 678 N.E.2d 1184, 1188 (Mass. 1997); see also Schalk v. State, 767 S.W.2d 441, 445, 453-54 (Tex. Crim. App. 1988) (explaining that, where officer did not have specialized knowledge to distinguish computer files covered by warrant from files not covered, “use of [civilian] assistance … would tend to limit or restrict the items seized rather than enlarge upon them”); State v. Kern, 914 P.2d 114, 118 (Wash. Ct. App. 1996) (noting that “police officer[s] will not ordinarily perform a search of a bank’s records, indeed may not be qualified to do so,” and that “[w]here a warrant is issued for specific bank records, delegation of the search to bank employees is not improper”).

Here, the defendant does not dispute that the police required assistance to execute the search warrant for her residence and to care for the dogs seized. Nor does the defendant dispute that the police required the assistance of an organization such as HSUS. Instead, the defendant argues that Strauch’s failure to obtain express authorization for HSUS’s aid from the magistrate who issued the search warrant was constitutionally unreasonable. We do not agree.