IA: No qualified immunity for overseizure in violation of SW; county attorney’s opinion conferred no additional immunity

The police here were held liable in a § 1983 case in state court for overseizure beyond the scope of the search warrant. They brought along the alleged victim who told them what else to seize and none of it qualified under “plain view.” The fact that the officers got advice from a county attorney, “a part of the prosecution team,” before the overseizure didn’t give them qualified immunity. Debower v. County of Bremer, 2014 Iowa App. LEXIS 509 (April 30, 2014):

This case involves various liability issues arising from the execution of a search warrant and subsequent immediate release of the seized property to the alleged victim. The defendants—Bremer County, Duane Hildebrandt, and Dennis Miller—appeal from the jury verdicts entered in favor of Mark DeBower in this 42 U.S.C. § 1983 and state law conversion action. DeBower cross-appeals from the court’s post-trial rulings. For the reasons that follow, we affirm on both appeals and assess $10,000 in attorney fees against the defendants.
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The officers had already seized the number of trees listed on the warrant. They were departing when they were directed to a location by Burkle who was claiming additional trees were his. The trees were not inherently illegal. The deputies had no training or expertise on the subject of trees and could not identify trees by species. Burkle alone determined what trees to seize. In addition, part of Burkle’s method of determining if a tree was “his” involved whether each tree could be pulled from the ground easily, which alone could support a finding that the incriminating nature of the tree was not immediately apparent. The district court did not err in sending the issue to the jury. Further, there was substantial evidence for the jury to conclude the law enforcement officers seized the eleven trees although their incriminating nature was not readily apparent to them. Without some sort of identification tag or unusual feature identifying a particular tree, identification would certainly seem extremely difficult. Moreover, here the claimed identification could not be made without pulling the tree from the ground, and thus the jury could have concluded the identification of the trees was not “readily apparent.”

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Here, however, the defendants ask that we conclude an officer’s discussion with the assistant county attorney—a “part of the prosecution team,” id. at 1249—about matters not authorized by the warrant shields them from liability as a matter of law. We decline the invitation.