When law enforcement officials seize property — like a vehicle, a briefcase or a laptop computer — as part of a criminal investigation, law enforcement is required to obtain a warrant from a judge for a subsequent search of the contents. If there is probable cause, the police are allowed to temporarily seize the property of this sort without a warrant to prevent loss of the evidence and to ensure that any evidence is not destroyed. But, the Fourth Amendment, which protects citizens against unreasonable searches and seizures, requires that the police seek a warrant diligently and within a reasonable period of time. Failure to do so is grounds for excluding the temporarily seized property and any contents thereof. As one court expressed it, even a constitutional temporary seizure will be deemed “… unconstitutional if police act with unreasonable delay in securing a warrant.” United States v. Martin, 157 F.3d 46, 54 (2d Cir. 1998).

Generally, the rule is justified for several reasons:

• Expediency in seeking and obtaining a search warrant is necessary to avoid interfering with the rights of individuals to possession of their property for longer than reasonably necessary
• Unnecessary delays undermine the criminal justice process by preventing judges from promptly evaluating whether the seizure was properly based on probable cause
• Unreasonable delays suggest that even the police do not deem the property seized to be relevant to the investigation and, therefore, should be returned to its rightful owner

That being said, what constitutes an “unreasonable delay” in seeking a warrant is somewhat flexible. That is, there is no “bright line” rule that, beyond a certain number of days, a court will automatically deem the delay to be “unreasonable.” Cases have found an “unreasonable delay” where seven to 31 days have elapsed. By contrast, other cases have found delays of months to not be unreasonable under the factual circumstances presented.

In evaluating “unreasonable delay”, courts have examined many factor including these:

• Whether seizure was based on “reasonable suspicion” or “probable cause” — more speed in seeking a warrant is necessary when only “reasonable suspicion” is the basis for the seizure
• Whether the owner (or co-owner) consented to the seizure — less speed is allowed
• Whether the owners has a “diminished property interest” in the property seized — less speed is allowed if the property was in the hands of some third party (like the postal service or a friend)
• Whether the property was electronics like a smartphone — more speed is required since electronic tend to contain a great deal of personal information (like tax returns) that are needed by the owner and not relevant to the criminal investigation
• How long was the actual delay — the longer the delay, the more likely a court is to find the delay to be unreasonable; holidays and weekends factor into the equation
• The importance of the property to the owner — a vehicle may be more important to the owner than a box of old business records; similar to the issue involving electronics
• Whether law enforcement had sufficient justification for the delay

If, in your case, there has been an unreasonable delay in seeking and obtaining a search warrant for seized property, this could be the basis for a motion to exclude evidence or the basis for a post-conviction appeal.

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For more information, contact the criminal defense and post-conviction appeal team at the Federal Criminal Law Center. Our firm knows how to fully assess an individual’s case and how to identify the strongest grounds for appeal. Contact us today by calling (404) 633.3797 or by completing our quick and convenient online form. Contact us today.