The BLT has an interesting report on a case in the DC Circuit that raises a fascinating Fourth Amendment issue: Does it violate a person’s Fourth Amendment rights if the government wrongfully obtains an arrest warrant authorizing the person’s arrest if the warrant is quickly withdrawn and never actually executed? More specifically, if the person claims that the existence of the unlawful arrest warrant caused him harm, can he recover damages under the Fourth Amendment even though he was never searched or seized?
It’s an interesting question, and off the top of my head, I don’t think I have heard of another case quite like it. On one hand, the plain text of the Fourth Amendment prohibits the issuance of a warrant not based on probable cause and not sufficiently particular: That seems to focus attention on the issuance of the warrant. On the other hand, modern Fourth Amendment doctrine generally holds that the Fourth Amendment only regulates searches and seizures, and there was no search or seizure here.
Perhaps the most analogous case is Groh v. Ramirez, a case involving the execution of a warrant that was later discovered to be defective. The police obtained the warrant, but in the place of the warrant where the agent was supposed to type in the items to be seized, he accidentally typed in the place to be searched. It seems that no one noticed the error until after the search was executed: Notably, the affidavit and application both contained particular descriptions of the items to be seized, and the warrant was actually executed in a reasonable way. In a 5-4 decision, the Court held that the Fourth Amendment was violated and that the officer who obtained and executed the warrant could be held personally liable because the search was not accompanied by a valid warrant.
I ‘m not sure which way Groh cuts. On one hand, the opinion suggests that the harm was the search of the plaintiff’s home without the required warrant. According to the Court, the lack of a valid warrant transformed the search into an unlawful warrantless search, which violated the Fourth Amendment. If you take that view, the Fourth Amendment violation would seem to be the search, not the issuance of the warrant. On the other hand, Groh doesn’t necessarily rule out liability for the mere issuance of the unlawful warrant. Plus, the actual search was performed in the same way as it would have been performed had the warrant been constitutional: No one knew the warrant was bad until the next day. In light of that, it seems a little strange to say that the unconstitutionality was in the search rather than the warrant.
Anyway, I don’t have strong views one way or the other on the merits of this one, but I thought readers would find it interesting.