Sunday, October 24, 1999

BENCHMARKS


Judges put limits on what police can seize

BY BEN L. KAUFMAN
The Cincinnati Enquirer

        In their embrace of the national war on drugs, federal courts have cut back Fourth Amendment protections from unreasonable searches and seizures.

        However, a recent 6th Circuit response to three related raids by police in Saginaw, Mich., suggests that a traditional understanding of those protections survives.

        The litigation arose from suspicions about pawn shops and second-hand store operations in 1993.

        Police with a valid search warrant seized thousands of pieces of jewelry at National Pawn and Ron's Avenue, a warehouse for National Pawn.

        In exchange for pleading no contest to conspiring to operate a legal business in an illegal manner, owner Steven Brindley was put on probation and fined.

        He sued, accusing authorities of violating the Fourth Amendment by seizing displayed jewelry, saying no reasonable officer would have believed displayed pieces were evidence of a crime.

        U.S. District Judge Nancy G. Edmunds disagreed, and Mr. Brindley appealed and lost again.

        A valid search warrant can turn into an invalid general search if officers flagrantly disregard warrant limitations, but that didn't happen here, Judges Eugene E. Siler Jr., Ronald Lee Gilman and James L. Graham said.

        Rather, Judge Siler wrote, the warrant covered all stolen jewelry and “it was within the realm of reasonableness for the officers to initially seize all of the jewelry and later verify which items were stolen.” Seizing displayed jewelry along with thousands of other pieces “cannot be said to have flagrantly exceeded the limitations of the warrant.”

        In the second search, officers sought missing records at the Brindley home with another valid warrant for “all records and data for the years 1988 to the present, in whatever form and format ... ”

        However, raiders also seized $5,000 cash, pre-1988 receipts and photographs, airline tickets, a family genealogy, items related to the birth of the Brindley baby, family videotapes, personal photos and news clippings.

        Mr. Brindley and his wife, Kellie Sue, sued, claiming officers violated the Fourth Amendment by taking items not mentioned in the second warrant.

        Police responded that the items were evidence of crimes they were investigating and even if the items weren't evidence, officers were enti tled to qualified immunity from liability as public officials exercising on-the-job discretion.

        Judge Edmunds agreed with police again and dismissed the second suit.

        This time she was wrong, the 6th Circuit said, and the Brindleys' claim can go before a jury.

        Police understood the Fourth Amendment, Judge Siler wrote, and “no reasonable officers in the defendants' position could have believed that certain seized items were within the scope of the warrant or evidence of a crime.”

        The third search was at Southfield Gold & Diamond Corp., owned by Kellie Sue Brindley, her father, Steve Serges, and Harvey Eisman.

        Officers — with still another valid search warrant for business records — seized nearly 1,500 items of jewelry, precious metals and gems valued at more than $150,000.

        Subsequent charges were dismissed, and Southfield brought a Fourth Amendment suit. It said officers took new jewelry from wholesalers, used jewelry on consignment from other merchants, and rings cleaned and/or appraised for individuals or merchants, and none of those pieces was subject to reporting requirements.

        Judge Edmunds again accepted officers' defense that they believed the goods were stolen and they were entitled to qualified immunity.

        Wrong again, the 6th Circuit said; This suit, too, could go before a jury.

        “Jewelry without pawn tickets "discovered' in a jewelry store can hardly be said to be immediately incriminating evidence nor does such discovery give rise to probable cause to associate the jewelry with criminal activity,” Judge Siler wrote.

       



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