CA7: Use of jackhammer to break up concrete for a search for a body was reasonable

The use of a jackhammer to conduct a search for a body under concrete was reasonable. There is no “least possible destructive means” standard for conducting the search. Johnson v. Manitowoc County, 635 F.3d 331 (7th Cir. 2011) (unpublished):

We begin with Johnson’s claim that his Fourth Amendment rights were violated when the officers used a jackhammer in their effort to collect evidence in accordance with the search warrant. The Fourth Amendment guarantees that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” “The touchstone of Fourth Amendment inquiry is reasonableness, a standard measured in light of the totality of the circumstances and determined by balancing the degree to which a challenged action intrudes on an individual’s privacy and the degree to which the action promotes a legitimate government interest.” Green, 420 F.3d at 694 (internal citations omitted). The reasonableness requirement extends to the manner in which the search is conducted. Id. at 694-95. It is “generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant.” Dalia v. United States, 441 U.S. 238, 257, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979). The test is whether “the officers executing the warrant employ[ed] a methodology that is, in light of the values protected by the Fourth Amendment and the exigencies of the situation, a reasonable one.” United States v. Jones, 54 F.3d 1285, 1292 (7th Cir. 1995).

Johnson argues that the officers’ use of the jack-hammer violates the reasonableness standard of the Fourth Amendment. He contends that the officers should have used a diamond or carbide-bladed saw, which would have resulted in less damage to the garage floor. Perhaps Johnson is correct, but the use of the jackhammer looks to be reasonable under the circumstances. Reasonableness, of course, is judged from the perspective of the officer at the time of the search, not with the benefit of 20/20 hindsight. Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Although another device, here a diamond or carbide saw, might well have done the job a little cleaner, use of the jackhammer under the circumstances was not unreasonable. Johnson cites, and we find, no cases requiring that officers use the least possible destructive means to execute a search warrant. Rather, “so long as the officer’s conduct remains within the boundaries of reasonableness, an officer has discretion over the details of how best to proceed with a search warrant’s execution.” Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir. 1997).

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Johnson also tries, rather unconvincingly, to distinguish United States v. Becker, 929 F.2d 442 (9th Cir. 1991), a case where the Ninth Circuit held that the use of a jackhammer to remove portions of a concrete slab during a search was reasonable. …