In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1863
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSHUA B URGARD ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 10-CR-30085 DRH—David R. Herndon, Chief Judge.
A RGUED S EPTEMBER 14, 2011—D ECIDED A PRIL 2, 2012
Before W OOD , T INDER, and H AMILTON, Circuit Judges.
W OOD , Circuit Judge. Expecting to find evidence of
child pornography, police officers seized Joshua
Burgard’s cell phone without a warrant. At that point,
however, they seemed to have lost their sense of urgency:
they did nothing with the phone right away and allowed
six days to elapse before they applied for a search war-
rant. Once they had the warrant in hand, they searched
the phone and, as anticipated, they found sexually ex-
2 No. 11-1863
plicit images of underage girls. Burgard pleaded guilty
to two counts of receiving child pornography in violation
of 18 U.S.C. § 2252(a)(2), and was sentenced to 210
months’ imprisonment and 15 years of supervised release.
On appeal Burgard challenges only the district court’s
denial of his motion to suppress the photographs found
on the phone. The pictures should have been excluded,
in his view, because the police tarried too long before
obtaining the warrant. Although we agree with Burgard
that the officers did not act with perfect diligence, we do
not find the delay here to be so egregious that it renders
the search and seizure unreasonable under the Fourth
Amendment. We therefore affirm.
I
On Wednesday, January 6, 2010, a friend of Burgard
approached Sergeant Louis Wilson of the Smithton, Illinois,
Police Department. The friend told Wilson that he had
seen sexual images of young girls (possibly aged 14 or
younger) on Burgard’s cell phone, and that Burgard, 21
years old at the time, had bragged about having sex
with them. This friend agreed to serve as a confidential
informant and to text Wilson later that night if he was
with Burgard and Burgard had the phone. The informant
followed through with the plan: that night, he texted
Wilson that he and Burgard were driving together in
the informant’s car. Wilson then stopped the informant’s
car and seized Burgard’s phone. Burgard voluntarily
went to the police station where Wilson entered the
phone into evidence and gave Burgard a property receipt.
No. 11-1863 3
Wilson did not immediately apply for a state search
warrant. Instead, he wrote a report about the seizure
and forwarded it to Detective Mark Krug in nearby
Collinsville, because Krug was assigned to work
part-time with the FBI’s Cyber Crimes Task Force. Wilson
and Krug worked different shifts, however, and so Krug
did not receive Wilson’s report until the next day. After
Krug read the report, he tried to contact Wilson to
learn more details, but again the shift differences got in
the way and the two were unable to speak until later
that night. The next day, Friday, January 8, Krug con-
tacted the United States Attorney’s Office to inform it
that he planned to draft a federal search warrant for
the phone. An Assistant United States Attorney (AUSA)
told him to proceed with drafting the affidavit.
Some time that same day, an armed robbery occurred
in Collinsville. Because the armed robbery was more
pressing, Krug put the cell phone warrant aside and
worked on the armed robbery investigation. (We note
at this juncture that Collinsville was, as of the time of
the 2010 Census, a town of 26,016; it is located in rural
Madison County, Illinois, and is the self-proclaimed
Horseradish Capital of the World. See The Global Gour-
met, http://www.globalgourmet.com/food/egg/egg1296/
horscap.html#axzz1p7ZbAO2x, last visited March 28,
2012.) Krug may have continued to work on the robbery
on Saturday, or he may have taken that day off. But by
Sunday, he was able to return to Burgard’s case and draft
the affidavit. On Monday morning, January 11, he sent
his draft to the AUSA and the two went back and forth
making edits. The next day, the AUSA finally presented
4 No. 11-1863
a completed warrant application to the federal magistrate
judge, who signed the warrant that day. Krug promptly
searched the phone pursuant to the warrant and found
numerous sexually explicit images of young girls.
Burgard conceded that the initial warrantless seizure
of the phone was lawful (because of exigency and
probable cause), but he sought to suppress the images
on the basis of the six-day delay. The district court
denied his motion to suppress on two grounds: (1) it did
not find the delay to be unreasonable, and (2) even if it
were, the good-faith exception to the exclusionary rule
applied. Burgard pleaded guilty but reserved his right
to challenge the denial of the suppression motion.
II
This case requires us to address one narrow question:
did the six-day delay in securing a warrant render the
seizure of Burgard’s phone unreasonable for purposes of
the Fourth Amendment? (All parties agree that the war-
rant was necessary, and so we make no comment on that
point. The search here was of the more invasive type
excluded from our discussion in United States v. Flores-
Lopez, No. 10-3803, 2012 WL 652504 at *7 (7th Cir. Feb. 29,
2012).) In general, “seizures of personal property are
‘unreasonable within the meaning of the Fourth Amend-
ment . . . unless . . . accomplished pursuant to a judicial
warrant.’ ” Illinois v. McArthur, 531 U.S. 326, 330 (2001)
(quoting United States v. Place, 462 U.S. 696, 701 (1983)).
An officer may temporarily seize property without a
warrant, however, if she has “probable cause to believe
No. 11-1863 5
that a container holds contraband or evidence of a
crime” and “the exigencies of the circumstances demand
it or some other recognized exception to the warrant
requirement is present.” Place, 462 U.S. at 701.
Even a permissible warrantless seizure, such as the
initial seizure here, must comply with the Fourth Amend-
ment’s reasonableness requirement. Thus, the Supreme
Court has held that after seizing an item, police must
obtain a search warrant within a reasonable period of
time. See, e.g., Segura v. United States, 468 U.S. 796, 812
(1984) (“[A] seizure reasonable at its inception because
based on probable cause may become unreasonable as
a result of its duration.”). We reject the notion that any-
thing in this court’s opinion in Lee v. City of Chicago,
330 F.3d 456 (7th Cir. 2003), undermined Segura’s hold-
ing. In Lee we held that an individual cannot chal-
lenge the police’s continued retention of his vehicle for
failure to pay impound fees on Fourth Amendment
grounds; he could only challenge the initial seizure. See
330 F.3d at 465-66. Here, in contrast, the police needed
within a reasonable time to obtain a warrant before they
could undertake a new search and seizure—that of the
contents of the cell phone. This is the essence of Burgard’s
complaint, not the retention point that was central to
Lee. See United States v. Martin, 157 F.3d 46, 54 (2d Cir.
1998) (“[W]here officers have probable cause to believe
container contains contraband, it ‘may be seized, at
least temporarily, without a warrant.’ ”) (quoting in paren-
thetical United States v. Jacobson, 466 U.S. 109, 121 (1984)).
No other recognized exception to the warrant require-
ment covered the police detention of the contents of
Burgard’s phone.
6 No. 11-1863
When officers fail to seek a search warrant, at some
point the delay becomes unreasonable and is actionable
under the Fourth Amendment. Moya v. United States,
761 F.2d 322, 325 n.1 (7th Cir. 1984) (“Even if the officers
had probable cause to believe Moya’s bag contained
contraband, there would be a question whether the
three hour detention of the bag before seeking a search
warrant was reasonable.”). See generally Phillip B.
Griffith, Thinking Outside of the ‘Detained’ Box: A Guide to
Temporary Seizures of Property Under the Fourth Amend-
ment, A RMY L AWYER, Dec. 2009, at 11, 13 (“Once govern-
ment agents establish probable cause, this accordingly
triggers the obligation to diligently pursue an authoriza-
tion to search the property.”). We review the district
court’s decision about the reasonableness of the delay
prior to the issuance of the warrant de novo, see United
States v. Richmond, 641 F.3d 260, 261-62 (7th Cir. 2011).
The government does not argue that the magistrate
judge was told about the length of the delay, and so we
have not been asked to give special deference to any
finding relating to its reasonableness (or lack thereof).
See United States v. McIntire, 516 F.3d 576, 578 (7th Cir.
2008).
A
There is unfortunately no bright line past which a
delay becomes unreasonable. Instead, the Supreme Court
has dictated that courts must assess the reasonableness of
a seizure by weighing “the nature and quality of the
intrusion on the individual’s Fourth Amendment
No. 11-1863 7
interests against the importance of the governmental
interests alleged to justify the intrusion.” Place, 462 U.S. at
703; see also McArthur, 531 U.S. at 331 (instructing
courts to “balance the privacy-related and law enforce-
ment-related concerns to determine if the intrusion
was reasonable”).
On the individual person’s side of this balance, the
critical question relates to any possessory interest in
the seized object, not to privacy or liberty interests. “A
seizure affects only the person’s possessory interests; a
search affects a person’s privacy interests.” Segura, 468
U.S. at 806. The longer the police take to seek a warrant,
the greater the infringement on the person’s possessory
interest will be, for the obvious reason that a longer
seizure is a greater infringement on possession than a
shorter one. But unnecessary delays also undermine
the criminal justice process in a more general way: they
prevent the judiciary from promptly evaluating and
correcting improper seizures. Thus the “brevity” of the
seizure is “an important factor” for us to weigh. Place,
462 U.S. at 709. In addition, it can be revealing to
see whether the person from whom the item was
taken ever asserted a possessory claim to it—perhaps
by checking on the status of the seizure or looking
for assurances that the item would be returned. If so,
this would be some evidence (helpful, though not essen-
tial) that the seizure in fact affected her possessory in-
terests. See, e.g., United States v. Stabile, 633 F.3d 219,
235-36 (3d Cir. 2011) (defendant’s failure to seek return
of his property for more than 18 months was a factor
that reduced the weight the court gave to his interest in
the item).
8 No. 11-1863
Turning to the state’s side, a key factor in our analysis
is the strength of the state’s basis for the seizure. The
state has a stronger interest in seizures made on the
basis of probable cause than in those resting only on
reasonable suspicion. All else being equal, the Fourth
Amendment will tolerate greater delays after proba-
ble-cause seizures. Compare McArthur, 531 U.S. at 331
(two-hour delay after probable-cause seizure of house
was reasonable), with Place 462 U.S. at 709 (90-minute
delay after reasonable-suspicion seizure of suitcase
was unreasonable); see also United States v. Martin, 157
F.3d 46 (2d Cir. 1998) (11-day delay after probable
cause seizure of package was reasonable).
Finally, when we balance these competing interests
we must “take into account whether the police
diligently pursue[d] their investigation.” Place, 462 U.S. at
709. When police act with diligence, courts can
have greater confidence that the police interest is
legitimate and that the intrusion is no greater than rea-
sonably necessary. McArthur, 531 U.S. at 331 (upholding
two-hour delay because it was “no longer than rea-
sonably necessary for the police, acting with diligence,
to obtain the warrant”). When police neglect to seek a
warrant without any good explanation for that delay,
it appears that the state is indifferent to searching the
item and the intrusion on an individual’s possessory
interest is less likely to be justifiable. Compare United
States v. Mitchell, 565 F.3d 1347, 1351 (11th Cir. 2009)
(21-day delay was unreasonable where “[t]he only
reason Agent West gave for the twenty-one-day delay
in applying for a search warrant was that he ‘didn’t see
No. 11-1863 9
any urgency’ ”), with United States v. Vallimont, 378
F. App’x 972, 976 (11th Cir. 2010) (45-day delay rea-
sonable where officers’ attention was diverted to other
matters but officers continued to work on the search
warrant).
B
Applying these factors, we cannot say that the
six-day delay here was so long that the seizure was unrea-
sonable. We acknowledge that Burgard had a strong
interest in possessing his cell phone. At no point before
the seizure did he abandon the phone or relinquish it
to a third party. He even asserted his possessory
interests over the phone by voluntarily going to the
police station to obtain a property receipt, which
would help him obtain the phone’s return.
On the other side of the equation, law enforcement’s
interests were also strong. Burgard has conceded that
police had probable cause to believe that the phone
would contain evidence of a crime. Although the
Supreme Court found a 90-minute delay to be unrea-
sonable in Place, 462 U.S. at 696, the Court said nothing
to suggest that 90 minutes is an outer limit for all cases.
For one thing, the seizure in Place was made on the basis
of reasonable suspicion, not probable cause. See Martin,
157 F.3d at 64. And even in a reasonable suspicion case,
90 minutes would not necessarily be the outer limit, as
the length of a delay is not the only relevant factor. See
United States v. Ganser, 315 F.3d 839, 844 (7th Cir. 2003)
10 No. 11-1863
(four-day delay following reasonable suspicion seizure
was not unreasonable).
Given these facts, Burgard leans heavily on the diligence
factor, arguing that the officer was not diligent because
he should have been able to submit the warrant applica-
tion more quickly. We are willing to assume that Burgard
is correct on this point. It strikes us as implausible that
an officer with over 14 years of experience, like Krug,
could not write a two-page affidavit in fewer than six
days, especially when the affidavit drew largely on infor-
mation that was contained in the initial report that he
received from Wilson. The government argues that the
delay was attributable to Krug’s lack of familiarity
with federal cell-phone warrants, but that explanation
is not persuasive given the fact that the bulk of the war-
rant appears to be boilerplate. And although it is true
that the detective’s attention was diverted by a more
serious robbery case, this did not take place until
Friday, after three days had already passed.
But police imperfection is not enough to warrant rever-
sal. With the benefit of hindsight, courts “can almost
always imagine some alternative means by which the
objectives of the police might have been accomplished,”
but that does not necessarily mean that the police
conduct was unreasonable. United States v. Sharpe, 470
U.S. 675, 686-87 (1985). Krug may theoretically have
been able to work more quickly, but his delay was not
the result of complete abdication of his work or failure to
“see any urgency” as in Mitchell, 565 F.3d at 1351. He
wanted to be sure that he had all the information he
No. 11-1863 11
needed from the seizing officer and he wanted to
consult with the AUSA, all the while attending to his
other law enforcement duties. We do not want to discour-
age this sort of careful, attentive police work, even if it
appears to us that it could or should have moved
more quickly. Encouraging slapdash work could lead
to a variety of other problems. See, e.g., Groh v.
Ramirez, 540 U.S. 551 (2004) (warrant failed to meet
Fourth Amendment’s particularity requirement, because
of failure in copying paragraph from warrant applica-
tion to warrant).
After seizing an item without a warrant, an officer
must make it a priority to secure a search warrant
that complies with the Fourth Amendment. This will
entail diligent work to present a warrant application to
the judicial officer at the earliest reasonable time. We
find that this standard was met here and that the
six-day delay was not so unreasonable as to violate the
Constitution. Burgard argues that this outcome could
“give authorities license to retain seized property for
long periods of time merely because they chose not to
devote a reasonable amount of resources and sufficient
experienced personnel” to the task of obtaining warrants.
Given the fact-specific nature of these inquiries, we think
these fears are overblown. It remains possible that a
police department’s failure to staff its offices adequately
or to give officers sufficient resources to process warrant
applications could lead to unreasonable delays. But this
case does not present that sort of egregious abdication
of duties.
12 No. 11-1863
III
The district court reached the same conclusion as we
do on the merits of the Fourth Amendment, but it then
went on to address the government’s alternative argu-
ment that the good-faith exception to the exclusionary
rule should apply. The court concluded that even if the
delay was unreasonably long, suppression would be
inappropriate because the officers searched the phone
in reliance on a warrant, and it thought that this trig-
gered the good-faith exception of United States v. Leon,
468 U.S. 897 (1984). This analysis, we believe, extended
Leon too far.
When an officer waits an unreasonably long time
to obtain a search warrant, in violation of the Fourth
Amendment, he cannot seek to have evidence ad-
mitted simply by pointing to that late-obtained warrant.
If this were all that was needed, evidence would
never be suppressed following these types of violations
because, by definition, the police would always have a
warrant before they searched. In the line of Supreme
Court decisions on which we have relied, the question
is not whether police ultimately obtained a warrant; it is
whether they failed to do so within a reasonable time. The
Court has never suggested that this type of violation is
wholly exempt from the exclusionary rule. See Place, 462
U.S. at 700 (upholding grant of motion to suppress
because of a delay of 90 minutes after seizing luggage
even though officers eventually searched under a war-
rant); McArthur, 531 U.S. at 326 (finding delay in ob-
taining a warrant reasonable without suggesting that
No. 11-1863 13
Leon’s good-faith rule would have applied). Furthermore,
removing this sort of police misconduct from the ambit
of the exclusionary rule would have significant implica-
tions: it would eliminate the rule’s deterrent effect on
unreasonably long seizures. Police could seize any item—a
phone, a computer, a briefcase, or even a house—for an
unreasonably long time without concern for the conse-
quences, evidentiary and otherwise.
The Ninth Circuit appears to be the only court that
has specifically addressed this question. In United States
v. Song Ja Cha the court held that “the exclusionary rule
is applicable where seizures are unconstitutionally long”
in order “to deter unreasonable police behavior and
to provide for judicial determination of probable cause.”
597 F.3d 995, 1006 (9th Cir. 2010). It rejected the govern-
ment’s argument that the good-faith exception applied.
In contrast to Leon, in which it was reasonable for a
“well trained officer” to believe the search warrant was
supported by probable cause, id. at 1005 (quoting Leon,
468 U.S. at 922 n.23), it is unreasonable for officers to
believe that a seizure may drag on “longer than neces-
sary for the police, acting diligently, to obtain the war-
rant,” id. (quoting McArthur, 531 U.S. at 332). The court
held that the exclusionary rule applied even under the
Supreme Court’s most recent good-faith case, United
States v. Herring, 555 U.S. 135 (2009), because the officer’s
deliberate failure to seek a warrant with diligence was
“sufficiently culpable that . . . deterrence is worth the
price paid by the justice system.” Song Ja Cha, 597 F.3d
at 1005 (quoting Herring, 555 U.S. at 144).
14 No. 11-1863
We do not categorically rule out the possibility of a
Leon argument in this line of cases. There may be a situa-
tion in which the unreasonableness of a delay is a very
close call, and an officer could not be charged with knowl-
edge that the delay violated the law. See, e.g., United
States v. Pitts, 322 F.3d 449 (7th Cir. 2003) (“Given our
prior holdings in similar cases, and given the disagree-
ment over the reasonableness of the length of the deten-
tion by the magistrate and the district court judge, we
do not believe the officer executing the warrant could be
charged with knowing the search was illegal . . . even
though the magistrate authorized it.”). All we say
is that the good-faith exception is not automatically
available as soon as a warrant materializes. A well-trained
officer is presumed to be aware that a seizure must last
“no longer than reasonably necessary for the police,
acting with diligence, to obtain a warrant.” McArthur,
531 U.S. at 332. When police fail to act with such
diligence, exclusion will typically be the appropriate
remedy.
IV
The Supreme Court has never retreated from the prop-
osition that the exclusionary rule applies to cases of
unreasonable delay. That said, we recognize that one
might imagine other remedies for the harm caused in
these situations—possibly some kind of Fifth Amend-
ment violation, or a damages remedy for the loss of the
use of the phone. But those hypothetical possibilities do
not change the ruling in Segura that the duration
No. 11-1863 15
between a seizure of a container and the issuance of a
warrant to search its contents may become unreasonable
for Fourth Amendment purposes, thereby requiring
suppression of the evidence. 468 U.S. at 812. This case,
however, just like Segura, is one in which the delay was not
constitutionally unreasonable. We A FFIRM the district
court’s denial of Burgard’s suppression motion and
thus the judgment of the court.
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