United States District Court, S.D. Georgia, Savannah Division
ORDER AND REPORT AND RECOMMENDATION
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
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.
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.
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. See
CR417-044 at docs. 28, 36 & 40. The State of Georgia,
however, initiated its own prosecution.
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.).
“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).
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. 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.
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; 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
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.
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) - 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
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
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 ...