By Jason Crockford

 What’s a seizure? That was the basic question before our own District Court in Jessop V. Fresno. The Plaintiffs allegedly ran illegal gambling machines. They stored the cash needed to fill the machines in their homes. The cops investigated and got a warrant. They seized the cash. Here’s where it gets interesting. Plaintiffs were given opportunity to view their seized money. They did, but claimed over 100k was missing because it was stolen by police. The cops denied the theft. Plaintiffs sued. They claimed a Fourth Amendment violation because the warrant’s “scope” had been exceeded.  That is, the Fourth Amendment protected not only the initial seizure but also the conceptually distinct “second seizure” occasioned by the theft. This second seizure was illegal because it was not supported by a warrant or probable cause. The question was does the Fourth Amendment protect against the subsequent theft of lawfully seized property?

The court answered “no” to the question because the officers’ warrant was (1) facially valid and (2) the alleged post-seizure theft didn’t violate a clearly established constitutional right. These are shallow means to justify precipitous ends: that the Fourth Amendment has absolutely nothing to say about the theft of lawfully seized property. To be sure, that a right is not “clearly established” at the time of violation is critical in deciding whether officers are entitled to qualified immunity.  But the essence of qualification in the context of an immunity defense has always been an accommodation between the belief that an officer should not be held responsible for conduct she could not have reasonably known was illegal, and that damage remedies for citizens are often the only realistic avenue to vindicate constitutional rights. In my opinion the Court skipped over this tacit balance. I don’t blame them. At summary judgment stage it was probably the right call. But at what cost?

The court did reach the merits of this juicy question. The Fourth Amendment protects against unreasonable searches and seizures. So what’s a seizure? Interestingly the Ninth has been silent on the issue and it’s drawn the Circuits to a classic split. Yet our District Court, loosed from the yoke of precedent, declined to stake out a firm position. It chose instead a route I’m not so sure is supported by the Ninth. For the Jessop Court a seizure is merely the act of dispossession. Fourth Amendment protection begins and ends the moment it occurs. Whether a particular seizure is “reasonable” turns only whether the act of dispossession was supported by probable cause. In Jessop the moment of seizure was reasonable because supported by a valid warrant. The cops suspected illegal gambling and a neutral magistrate agreed. They then seized the money. Irrespective of what was done with the money (theft), the Fourth Amendment’s concern was with the temporally limited act of dispossession, not after. Under this view there is no constitutional remedy for the theft (though perhaps a state law claim).

Plaintiffs, on the other hand, argued for an “ongoing” seizure; that Fourth Amendment protections aren’t temporally restricted to the moment when property is taken. Instead, one’s possessory interest is protected and survives the momentary disruption of dispossession. Though plaintiffs’ money was lawfully seized by officers under a valid warrant they retained a viable interest in it. The seizure of the money was reasonable only insofar as the state’s interest outweighed plaintiffs’. Because theft is supported by no conceivable law enforcement purpose, Plaintiffs’ interest in their money snapped back and became paramount once the theft occurred. The seizure was from that point unreasonable. It’s balancing. Interests can be momentarily outweighed but not extinguished. The test of “reasonableness” always applies regardless of whether the act of dispossession has already occurred.

These warring positions were of no concern to the Jessop Court. It failed to even trace out the respective positions of the combatants. It saw a facially valid warrant and concluded summary judgment insuperable. In so ruling the court tipped its hand: it believes a seizure is merely a momentary act. While two of our sister Districts in the Ninth have eloquently defended the concept of the “ongoing” seizure (see the masterful opinion from Northern District Judge and civil rights icon Thelton Henderson in Sandoval v. County of Sonoma), and three Courts of Appeals, including the intellectually delicious seventh, have defended the “momentary” seizures, I was disappointed that the Jessop court declined to carve out its own niche in an area of Fourth amendment law on which there’s no precedent.

One last point. The Jessop Court was smart in how it distinguished unfavorable case law. It is true in one sense that the Ninth Circuit has not addressed the precise factual circumstance of officer theft of lawfully seized money. However in a definite legal sense it has always held that “prolonged” seizures do exists. Any criminal attorney worth her salt is aware of the fact. That a reasonable seizure can become unreasonable once its justification ceases is a fundamental rule of criminal procedure (see US v. Place). In distinguishing Circuit precedent on factual rather than legal grounds, the Jessop Court threw Plaintiffs’ for a loop. Plaintiffs’ motion didn’t anticipate this as the failed to see the factual difference in their case. Regardless, the Ninth Circuit may well disagree that the Fourth Amendment is utterly irrelevant to the reasonableness of an actor’s failure to return property when no longer needed. I hope they take up the case.


Jason Crockford is a third year law student at San Joaquin College of Law. He loves Contract law, the Fourth Amendment, and American Literature.