{"id":2526,"date":"2008-12-24T09:26:38","date_gmt":"2008-10-07T08:38:46","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-10-07T08:38:46","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2526","title":{"rendered":"WA: Search warrant not automatic defense to trespass action"},"content":{"rendered":"

Existence of a search warrant is not an automatic defense to trespass for wrongful execution of the warrant. Brutsche v. City of Kent<\/a>, 164
\nWn.2d 664, 193 P.3d 110 (2008):<\/p>\n

Thus, under the Restatement (Second) of Torts \u00a7 210, section 214(1) applies even if the entry onto the property is initially lawful for purposes of a search pursuant to a valid warrant.fn8 The fact that a valid warrant exists is not an automatic bar to a trespass claim.<\/p>\n

8. One court has stated that the presence of a valid search warrant is a complete defense to a suit for trespass. Wright v. United States<\/em>, 963 F. Supp. 7, 19 (D.D.C. 1997). But the authority cited in Wright<\/em> for this proposition does not support the conclusion. The court relied on Hammel v. Little<\/em>, 66 App. D.C. 356, 87 F.2d 907, 912 (D.C. Cir. 1936). In Hammel<\/em> property was seized for violation of the internal revenue laws, and upon acquittal of the owner, the property was returned. He brought a claim of trespass, claiming that probable cause is never justification for an illegal seizure. Id<\/em>. at 908. The court rejected this argument, reasoning that the relevant question is whether the seizure was lawful and proper, and under civil rules of evidence this question had been resolved against the plaintiff even though he had been acquitted. Id<\/em>. at 912. The court also said, however, that it has “never been the law that trespass will lie for an act of seizure unless it appears that the act was tortious or unauthorized.” Id.<\/em> Given this explanation, Hammel<\/em> cannot be said to support a blanket defense because of the presence of a valid warrant.<\/p>\n

. . .<\/p>\n

CONCLUSION<\/p>\n

We adopt Restatement (Second) of Torts \u00a7 214 and conclude that liability in trespass may arise if by intentionally doing an act that a reasonable person would not regard as necessary to execute the warrant and thereby damage the property, or by executing the warrant in a negligent manner and thereby damaging the property, law enforcement officers exceed the scope of their privilege to be on the land to execute a search warrant. Although a trespass action is a permissible cause of action, summary judgment was properly granted in this case because, as a matter of law, on the evidence submitted, the officers did not exceed the scope of their privilege to be on the property to execute the search warrant.<\/p><\/blockquote>\n

Trial counsel’s affidavit in response to a 2255 pleading that there was no basis for a motion to suppress went unanswered, so the 2255 was denied on that ground. United States v. Pryor, 2008 U.S. Dist. LEXIS 77709 (S.D. Tex. October 3, 2008).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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