Let’s say agents get a warrant to search P’s house, looking for a computer they suspect stores content that is illegal to possess. They knock on the door and P lets them in. They execute the warrant and seize P’s computer, not knowing, because P doesn’t agree to confess, whether the computer seized does, in fact, contain illegal content. P does not consent to the seizure of the computer.
The agents march off with P’s computer. Five months later, the agents haven’t bothered to find out what’s on the computer’s hard drive. Perhaps they were using P’s computer as a book end. In any event, the computer has been sitting, untouched.
P asks that the computer be returned and his request is denied. Finally, the agents look at the hard drive, and find the illegal content. Can P complain that the seizure of the computer was unreasonable under the Fourth Amendment, because the agents neglected to timely determine whether the item seized did in fact contain the illegal content anticipated in the warrant application and approved for seizure by the issuing judge?
It depends. Did P confess that the computer contained the evidence sought? Did P consent to the seizure? Did P impliedly consent by permitting time to pass, post-seizure, without asking for the computer’s return? In other words, did P directly, or impliedly, consent to the delay? If the answer is no, this is an issue ripe for launching.
See, this language, from U.S. v. Christie, 2013 WL 2477252 (10th Cir, June 11, 2013):
“We do not doubt that an unreasonable delay in obtaining a search warrant can sometimes violate the Fourth Amendment. This much surely flows from the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” U.S. Const. amend. IV. What, after all, is “reasonable” about police seizing an individual’s property on the ground that it potentially contains relevant evidence and then simply neglecting for months or years to search that property to determine whether it really does hold relevant evidence needed for trial or is totally irrelevant to the investigation and should be returned to its rightful owner? (Strings cites omitted)
Keep the Fourth Amendment alive (this part is not in the opinion).