Fourth Amendment Does Not Require Least Invasive Execution Of Search Warrant
JOHNSON v. MANITOWOC COUNTY (March 10, 2011)
Steven Avery was convicted of rape in Wisconsin state court in 1986. After serving 18 years in jail, he was released in 2003 after DNA evidence suggested that he did not commit the crime. He filed a multi-million dollar lawsuit against Manitowoc County authorities. Avery lived in a trailer and garage rented from Roland Johnson. A few years after his release, a magazine photographer disappeared after meeting with Avery on Johnson's property. An investigation ensued, with Avery a prime suspect. Several search warrants were executed at the trailer and garage. During the searches, the investigators broke up a portion of the concrete garage floor with a jackhammer, damaged the garage door, and damaged the trailer. They also seized a number of personal items. Johnson brought suit against County officials under § 1983, alleging violations of the Fourth, Fifth, and Fourteenth amendments. Judge Randa (E.D. Wis.) granted summary judgment to the defendants. Johnson appeals.
In their opinion, Judges Flaum, Rovner, and Evans affirmed. The Court first considered Johnson's argument that the use of the jackhammers violated the Fourth Amendment. The Fourth Amendment requires reasonableness, and measures it under the totality of the circumstances. The Court rejected Johnson' argument that the availability of a less invasive tool made the use of the jackhammers unreasonable. The Fourth Amendment does not require the least destructive approach to the execution of a search warrant. The Court concluded that the use of the jackhammers was reasonable under the circumstances. The Court turned to Johnson's claim that the Fifth Amendment Takings Clause entitles him to compensation. But the Takings Clause does not apply when the "taking" results from a government power other than the power of eminent domain. Here, any property seized or destroyed by government authorities was done so under its police power. The Court did note that Johnson may have some state remedies, both for compensation for damages and the return of his property – but he does not have a federal constitutional claim.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select