Seventh Circuit Finds Six-Day Delay Between Seizing Phone and Obtaining Search Warrant Reasonable – U.S. v. Burgard

April 11, 2012 by David S. Seltzer

As a child pornography criminal defense lawyer, I read a lot of cases in which the defendants dispute the police’s right to search their homes, cars or other property. Without a valid search, of course, law enforcement can’t prove crimes like child pornography possession because the search is their only evidence of a crime. But most courts will let a police search stand unless there is clear evidence of wrongdoing or carelessness about probable cause, so I was interested to see case in which the defendant challenged the warrant based on delays. In United States v. Burgard, the Seventh U.S. Circuit Court of Appeals ultimately rejected the argument from Joshua Burgard that the court should have suppressed evidence of child pornography on Burgar’s cell phone because the police took six days to get a warrant.

Burgard, 21 at the time, got into trouble when he showed a friend his cell phone pictures of underaged girls in sexually explicit poses, and bragged about having had sex with those girls. The friend called the police department in his southern Illinois town and reported this, and the police asked him to help stage a traffic stop that evening. At the traffic stop, Sergeant Louis Wilson confiscated the phone and entered it into evidence, but he did not go on to apply for a search warrant. Rather, he asked Detective Mark Krug in a neighboring town to help, because Krug had experience working with the FBI’s Cyber Crimes Task Force. Because of shift differences and an armed robbery in Krug’s small town, they did not obtain their warrant for six days; when they did, they promptly searched the phone and found the sexually explicit pictures. Burgard was charged with and pleaded guilty to two counts of receiving child pornography, but reserved the right to challenge the warrant delay on appeal.

The Seventh Circuit ultimately agreed with the trial court that the delay did not make the seizure of Burgard’s phone unreasonable for Fourth Amendment purposes. Interestingly, all of the parties agreed a search warrant was necessary, which is not universally true in my experience as a cyber crime defense attorney. They also agreed that the initial seizure was lawful; but police then have an obligation to search the seized property within a reasonable amount of time, and Burgard argued that the six-day delay was not reasonable. The courts have not created a bright-line test for when a delay is unreasonable, the Seventh said, but the Supreme Court has instructed courts to weigh the government interest at stake against the nature and quality of the intrusion on the individual’s rights. Using that test, it agreed that the delay was not unreasonable. Though the police did appear to have dragged their feet, the court said, that imperfection was not unreasonable. Indeed, the court found this “careful, attentive police work” laudable. Thus, it upheld the district court.

The court noted that there’s no “bright line” test for how long a delay is unreasonable, which is disappointing for me as a child pornography possession defense lawyer. While it’s laudable to balance inconvenience to the defendant (pretty large, in this case, given that his phone was gone for almost a week) with legitimate state interests, this leaves a lot of room for errors or variations among the individual courts deciding cases. While Burgard’s six-day delay was found reasonable, another case cited in this opinion found a 90-minute delay unreasonable. It’s not hard to see that this could lead to inconsistent results, particularly in cases that provoke strong emotions, such as child porn cases.

Seltzer Law, P.A., represents people across the United States who are facing serious cyber crime charges or other charges related to technology and the Internet. To tell us about your case and learn more about how we can help, call us today for a free consultation at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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