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Burbank v. Kirkconnell

United States District Court, S.D. Georgia, Savannah Division

January 4, 2019

MASON BURBANK, Plaintiff,
v.
WILLIAM KIRKCONNELL, et al ., Defendants.

          ORDER AND REPORT AND RECOMMENDATION

         Proceeding pro se and in forma pauperis, plaintiff Mason Burbank has filed this 42 U.S.C. § 1983 action alleging various constitutional violations arising from the execution of a warrant and his subsequent arrest by a Federal Bureau of Investigation (FBI) child exploitation task force. See CV418-294, doc. 6; see generally United States v. Burbank, CR417-44 (charges dismissed and case closed on June 29, 2017). The Court granted his request to proceed in forma pauperis (IFP), doc. 3, and he returned the necessary forms. Docs. 4 & 5. The Court now proceeds to screen the Complaint pursuant to 28 U.S.C. § 1915A, which requires the immediate dismissal of any pro se complaint that fails to state at least one actionable claim against a governmental entity or official.[1]

         I. BACKGROUND

         Some background is necessary. During an undercover investigation, agents downloaded various files containing child pornography from a device at a specific IP-address; search warrants served on the internet provider for that address then supported a search warrant for a Georgia residence. See MJ417-006, docs. 4 & 5. The warrant specified the items to be searched and seized, chiefly any “visual depictions of child pornography” and “any mechanism used for the distribution, receipt or storage of the same” (i.e., “[a]ny computer, computer system and related peripherals including cellular telephones, “smart phones” and data processing devises . . .”), among other things. Id., doc. 5, Att. B (“List of Items to Be Seized and Searched”). Having approved the warrant, the Court made a copy available to the agents. FBI Special Agent William Kirkconnell (the lead agent on the case), however, failed to pick it up prior to the day of the planned search. CR417-044, doc. 39 at 6.

         Kirkconnell realized his mistake as task force members gathered at around 6:45 a.m. on February 2, 2017. CR417-044, doc. 39 at 43-44, 56 (testifying that while he didn't know the specific law or rule, he knew he had a duty to serve a copy of the warrant at execution). But Kirkconnell was reticent to disrupt the scheduled search, given the imposition on the assembled agents. Id. at 43. Kirkconnell conferred with his fellow agents about what to do, and concluded the scenario was analogous to an “oral warrant” search -- where a paper copy of the warrant obviously would not be available (e.g., where the warrant was approved and issued over the phone). Id. So, at 8:05 a.m. Kirkconnell executed the search, despite not having either a paper or electronic copy of the warrant in his possession (the warrant was still sealed and thus inaccessible remotely from the Court's electronic docket). Id. at 6-7.

         Burbank repeatedly demanded that a copy of the warrant be given to him while agents searched the premises. CR417-044, doc. 39 at 45. At some point during the search, and despite the agents' failure to comply with his demand, Burbank voluntarily turned over his mobile phone. Id. at 40. Burbank was eventually given a copy in mid-April 2017 -- more than 60 days after the search was executed. Id. at 16-17. Meanwhile, forensic examination of his cell phone revealed more than 2700 images of naked prepubescent children engaged in sexually explicit activity, 53 sexually graphic videos depicting children under the age of 12, and text messages and conversations evincing a sexual relationship between him and a child. CR417-044, doc. 31 at 2 (citing USAO 74); see also id., doc. 1 (indictment for possession, receipt, and distribution of child pornography). Burbank's counsel moved to suppress the evidence, arguing that Kirkconnell's failure to serve a copy of the warrant violated Fed. R. Crim. P. 41, and, after a hearing, the Government dismissed the charges against him.[2] See CR417-044 at docs. 28, 36 & 40. The State of Georgia, however, initiated its own prosecution.

         Burbank now seeks to enjoin the various federal agents involved in executing the warrant from testifying in his state prosecution, get $200, 000 in damages against the federal agents for “their actions in furtherance of [an] illegal search, ” and perhaps (it is less clear in his Amended Complaint) seeks to prevent the evidence they found from being used in the State's case against him. CV218-297, doc. 6 at 5 (contending that defendants have given “illegal evidence to the State”); see State v. Burbank, CV17-R-399 (Liberty Cnty. Super. Ct.).

         II. ANALYSIS

         Warrants “assure[ ] the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” United States v. Chadwick, 433 U.S. 1, 9 (1977), abrogated on other grounds, California v. Acevedo, 500 U.S. 565 (1991). That assurance, however, does not imply any substantive right to monitor police conduct during a search. See United States v. Grubbs, 547 U.S. 90, 99 (2006); United States v. Stefonek, 179 F.3d 1030, 1034-35 (7th Cir. 1999).

         Absent exigent circumstances, Fed. R. Crim. P. 41(f) requires that notice -- a copy of an executed search warrant -- be provided to the owner of the property seized.[3] But it's not an exacting requirement, and it is certainly not constitutionally required. For example, “neither the Fourth Amendment nor Rule 41 . . . requires the executing officer to serve the warrant on the owner before commencing the search.” Groh v. Ramirez, 540 U.S. 551, 562 n. 5 (2004) (emphasis added); see also United States v. Banks, 540 U.S. 31, 35 (2003) (“[t]he Fourth Amendment says nothing specific about formalities in exercising a warrant's authorization.”); Katz v. United States, 389 U.S. 347, 356 n. 16 (1967) (“the Federal Rules of Criminal Procedure [do not] impose an inflexible requirement of prior notice.”); United States v. Cazares-Olivas, 515 F.3d 726, 730 (7th Cir. 2008) (“whatever the most prudent course may be, the fourth amendment does not require officers to have a warrant in hand when searching.”); United States v. Hepperle, 810 F.2d 836, 839 (8th Cir. 1987) (“[w]hile it may be foolhardy to proceed in the absence of the physical presence of the warrant, it is not unconstitutional.”). In other words, a warrant must be provided at some point, but there is no requirement (constitutional or otherwise) that it be presented at the outset of a search.

         This case, however, does not present the more common fact-pattern Rule 41(f)(1)(C) (emphasis added). Rule 41(f)(3) allows a delay in providing the warrant through exceptions not applicable here. See 18 U.S.C. 3103a(b). in which a copy of the warrant is provided within a short time after the commencement, or even conclusion, of a search. As discussed above, Burbank was not presented a copy of the warrant for several months after the search. Nevertheless, “[u]nless a clear constitutional violation occurs, noncompliance with Rule 41 requires suppression of evidence only where (1) there was ‘prejudice' in the sense that the search might not have occurred or would not have been so abrasive if the rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule.” United States v. Gerber, 994 F.2d 1556, 1560 (11th Cir. 1993) (emphasis added) (citing United States v. Loyd, 721 F.2d 331, 333 (11th Cir. 1983) & United States v. Marx, 635 F.2d 436, 441 (5th Cir. Jan. 27, 1981)). Burbank does not contend the search would not have occurred or would have been different in scope had a copy of the warrant been present; thus, he suffered no prejudice. CV418-294 at 6;[4] see United States v. Brown, 569 Fed.Appx. 759, 763 (11th Cir. 2014). He argues instead that because Kirkconnell knowingly violated Rule 41, the fruits of the search must be suppressed.

         But violating Rule 41 does not per se violate the Constitution. Simon, 206 F.3d at 403 (violations of Rule 41 do not automatically render a search unreasonable under the Fourth Amendment); see United States v. Calandra, 414 U.S. 338, 348 n. 6 (1974) (the Federal Rules of Criminal Procedure do “not constitute a statutory expansion of the exclusionary rule.”); United States v. Johnson, 660 F.2d 749, 753 (9th Cir. 1981). After all, the Fourth Amendment does not mention notice. Indeed, “the Supreme Court has stated that the Constitution does not categorically proscribe covert entries, which necessarily involve a delay in notice.” United States v. Simons, 206 F.3d 392, 403 (4th Cir. 2000) (citing Dalia v. United States, 441 U.S. 238, 247-48 (1979)). It follows that a “notice failure” on an indisputably valid search warrant simply does not rise to a constitutional magnitude. Simons, 206 F.3d at 402-03; see Wayne R. LaFave, Search & Seizure § 4.12 (5th ed. 2016) (generally, requirements imposed by statute or court rule concerning the execution of search warrants are considered ministerial and “are not deemed to flow so directly from the Fourth Amendment's proscription upon unreasonable searches that failure to abide by them compels exclusion.”). At most, such a “ministerial” misstep constitutes a “mere technical error, ” see, e.g., United States v. Williamson, 439 F.3d 1125, 1132-34 (9th Cir. 2006), absent a showing of subjective bad faith.

         Burbank's argument is that the search was invalid because agents executed an otherwise valid warrant that they didn't have in their hands, not that they were engaged in some sort of malfeasance. Even taking as true Burbank's present allegations that the agents, after conferring about “the legal ramifications of searching without having a copy of the warrant, ” “decided to search anyways” - in knowing disregard of the requirement (doc. 1 at 5; see also CR417-044, doc. 39 at 43 (Kirkconnell's testimony that while he knew he had a duty to present a copy of the warrant at execution, he also believed (albeit mistakenly) that he could proceed without a copy of the valid, magistrate-approved warrant)[5] - the search was merely technically deficient. Burbank does not allege that the executing agents believed the warrant invalid or lacking in probable cause, or that they exceeded the scope of the warrant. C.f. United States v. Freitas, 856 F.2d 1425, 1432 (9th Cir. 1988) (because “Rule 41's rule of intentional and deliberate misconduct requires subjective bad faith on the part of the government agents, ” where “[t]he overwhelming evidence in this case is that the agents acted in subjective good faith in preparing and executing the warrant” and the “agents still would have conducted the search” in the same manner had the procedural violation not occurred, suppression is inappropriate). Burbank does not even hint that Kirkconnell's failure was anything more than a ministerial misstep.

         “Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” See Fed. R. Crim. P. 52(a). And, as set forth above, Rule 41 violations, being “essentially ministerial in nature, ” simply do not rise to constitutional magnitude. Marx, 635 F.2d at 441; see also United States v. Hector, 474 F.3d 1150, 1153-55 (9th Cir. 2007); c.f. United States v. Cafero, 473 F.2d 489, 499 (3d Cir. 1973) (“[w]e find it difficult to accept the proposition that a search may be deemed reasonable, and therefore constitutional during the various stages of application for authorization, execution, supervision of the interception, and termination, only to be invalidated ab initio because of the operation of some condition subsequent, to-wit, a failure to give notice of the items seized.”).

         Finally, the passage of time between the search and the production of the warrant 60 days later (in mid-April 2017, during discovery) provides no constitutional hook. See, e.g., Simons, 206 F.3d at 403 (as long as the “search satisfied the requirements of the Fourth Amendment, i.e., it was conducted pursuant to a warrant based on probable cause issued by a neutral and detached magistrate, ” such a “delay in notice” --there, a 45-day delay in providing a copy of the warrant -- does not render the search unconstitutional). In sum, the failure of federal agents to provide ...


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