{"id":4433,"date":"2010-07-15T18:13:46","date_gmt":"2010-07-15T17:26:54","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-07-15T17:26:54","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4433","title":{"rendered":"IA: Taking alleged victim to scene of search to let him decide what to seize violates Fourth Amendment"},"content":{"rendered":"

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 \u00a7 1983 case filed in state court. Debrower v. City of Bremer<\/a>, 0-316 (Iowa July 14, 2010)*:<\/p>\n

We conclude Deputy Miller\u2019s conduct in seizing the additional eleven trees based on Burkle\u2019s 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 \u201cthe incriminating feature of the object was immediately apparent.\u201d Burkle\u2019s handwritten statement clearly asserts \u201c34 trees\u201d were stolen \u201cabout 3 weeks ago\u201d 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 \u201cwhether a police officer has actually aided a private party\u2019s seizure of property \u2018is particularly fact-sensitive\u2019\u201d and the right to avoid state participation in private party\u2019s wrongful seizure of property was clearly established in 2003). Since the Bailey decision in 1991, Iowa officers knew \u201cthat the officers\u2019 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.\u201d 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. <\/p><\/blockquote>\n

Hat tip to appellant’s counsel who forwarded it.<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-4433","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4433","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4433"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4433\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4433"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4433"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4433"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}