Police seized 46 firearms from a murderer’s parents that had nothing to do with his crimes and they were never used in any proceeding. Eight years later after the son’s death sentence was affirmed on direct appeal and habeas, the Third Circuit holds that the seizure violated the Fourth, Fifth, and Second Amendments. The government’s right to keep property for potential use ran out here. At common law, unnecessary seizures of property were a trespass. Frein v. Pa. State Police, 2022 U.S. App. LEXIS 24414 (3d Cir. Aug. 30, 2022);
B. The warrant does not immunize officials who keep property this long
The officials have one last card to play: they seized the parents’ property under a judicial warrant. See Warden, 387 U.S. at 301-02 (letting police seize evidence under search warrants). The seizure, the parents agree, was valid. And warrants can shield officials from liability.
But not for this long. Though valid warrants immunize officers who stay within their scope, they are not blank checks. See Bruce v. Rawlins, 95 Eng. Rep. 934 (KB 1770) (letting officers be sued for trespass when a search under a writ of assistance turned up nothing); see also Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 586-89 (1999) (noting that trespass liability for valid yet unsuccessful search warrants was “an aspect of common law … well known at the time of the framing”). But cf. Fabio Arcila, Jr., The Death of Suspicion, 51 Wm. & Mary L. Rev. 1275, 1284 & nn.15-16 (2010) (noting a debate over how much immunity warrants and writs of assistance conferred). They are a limited exception to the rule against taking private property.
And that exception applies narrowly. At the Founding, warrants authorized taking property tied to a particular crime or wrong—hence the Fourth Amendment’s requirement of probable cause. So warrants had to “particularly” identify the “things to be seized,” and those “things” had to be tied to the crime for which there was probable cause. U.S. Const. amend. IV; see Davies at 601, 651-52. And though officers could also take evidence not listed in the warrant, it still needed to be “material as evidence on the charge made against the prisoner.” Rex v. Barnett, 172 Eng. Rep. 563, 564 (CP 1829) (emphasis added); see also Crozier v. Cundey, 108 Eng. Rep. 439, 439 (KB 1827) (letting officers seize items not mentioned in the warrant only if those items were “likely to furnish evidence of the identity of the articles stolen and mentioned in the warrant”). If officers exceeded these limits, they would be liable. Thus, at the Founding, warrants immunized officers from trespass suits only for seizing evidence tied to a particular charge.
Because the point of seizing evidence is to use it in a criminal proceeding, the government may hang onto it through that proceeding. See, e.g., Kensington Dist. N. Liberties, Pa., Act of Mar. 28, 1787, 2 Smith 401, § XII (letting the government keep seized gunpowder until a court decided whether it was lawfully possessed). And at the Founding, that proceeding would have ended by the time the conviction was final, not after the prisoner had exhausted collateral review. Indeed, collateral review was historically a civil remedy treated as a matter of legislative grace, not an integral part of the criminal process. See, e.g., Ex parte Watkins, 28 U.S. (3 Pet.) 193, 202, 209 (1830) (Marshall, C.J.) (holding that the writ of habeas corpus “excepts from those who are entitled to its benefit … persons convicted” by “a court of competent jurisdiction”); see also Brown v. Davenport, 142 S. Ct. 1510, 1520-21 (2022) (tracing the history of “permissive,” not “mandatory,” grants of habeas power to courts).
Thus, the warrant immunizes the officers who first seized the guns. But after the conviction became final, the warrant’s justification ran out. “It is well settled that the government is permitted to seize evidence for use in investigation and trial, but that such property must be returned once criminal proceedings have concluded, unless it is contraband or subject to forfeiture.” United States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999); accord United States v. Francis, 646 F.2d 251, 262 (6th Cir. 1981).
If the government wants to keep the property after the conviction becomes final, it needs some justification. That is why it may keep contraband, property that is illegal to own. It may also keep the proceeds of the crime or the instrumentalities used to commit it. See 21 U.S.C. § 853; Kaley v. United States, 571 U.S. 320, 323 (2014). But it may do that only after going through one of two processes. First, it may use criminal forfeiture to get the proceeds or instrumentalities as “an element of the sentence imposed following conviction.” Libretti v. United States, 516 U.S. 29, 38-39 (1995) (second word of emphasis added). In other words, it must first prove the owner’s guilt at trial. United States v. Sandini, 816 F.2d 869, 873 (3d Cir. 1987).
Or the government may use civil forfeiture to take the property even without convicting the owner. See United States v. U.S. Currency in the Amount of $145,139.00, 18 F.3d 73, 75 (2d Cir. 1994). But even then, the government must have at least probable cause to link the property to the crime. See, e.g., United States v. $10,700.00, 258 F.3d 215, 222 (3d Cir. 2001) (analyzing 19 U.S.C. § 1615).
The parents’ guns fall into none of these categories. The police have never said the guns are contraband. Nor have they tried to forfeit them. A new warrant or other proof of continued compliance with the Fourth Amendment could justify retention for collateral review, say, or a new investigation or prosecution. But the government offers no such justification. When we asked the district attorney’s lawyer if there would be probable cause to seize the guns today, he conceded, “I would think not.” Oral Arg. Tr. 41:18-42:11. Because the government has not compensated the parents for the guns either, their takings claim may proceed.
We need not decide when, after the criminal case, this liability accrues and whether the plaintiff must first demand return of the property and be refused.
