Gerald E. Hessel and Leatrice A. Hessel v. Patrick O'Hearn

299 paid Flynn, as such. 786 F.2d 320 Cir. thus do not deserve to be Kirchoff However, pre-trial 1986); during F.Supp. much of the Chicago, Bohen v. East 666 discovery Freed- during (N.D.Ind.1987). proceedings lead coun- man and Bornstein were lawyers All three submitted affida top sel, period deserve and for stating vits was the market rate $182 An exact calcula- per hour. rate of $182 time, lawyer for their and a fourth submit find that we impossible, tion is but verifying ted an affidavit that this is the per hour for all of their time rate of $150 prevailing Chicago, rate in where the case throughout litigation to be a fair this litigated, type for work of the hourly rate. quality. Although (why this is odd $182 by multiply- the award computed The court why than $180 rather three law $185? hour, by per time ing all of Burns’s $182 rates?), yers Haeger with identical did not lawyers’ out-of-court and the other two contest these affidavits and submitted per Freedman and time hour. $150 point. argued evidence on the Instead he got nothing, even the Bornstein $150 that there ought to be difference hour, light per for the trial itself charged by rates leaders and followers. finding having more judge’s further litigation depends Fee under § lawyer represent Pressley at trial than one what the market rate is rather than what was wasteful. litigants judges ought think it to be. This for Burns and $182 outcome— All of the evidence this record shows lawyers during nothing for the other two that the market rate for these three law lead; trial, Burns had the and $182 when hour, yers’ per time was $182 § Burns and for Freedman and for $150 requires judge to use that rate. Nan during the remainder of the Bornstein Illinois, University etti v. suggests when had the lead — (7th Cir.1991); Henry v. Weber judge may district not have carried out the (7th Cir.1984). meier, 738 F.2d design. according to his own calculation judgment on the merits is affirmed. deeper problem. judge But there is a vacated, attorneys’ fees is award searching assumed that he was for pro- and the case is remanded for further services, “just” price legal or “fair” ceedings opinion. consistent this lawyers Perhaps, what the “deserve.” world, just first violins would earn more Frequently,

than second fiddles. in this

world, same; the two earn the sometimes Prevailing plain

second chairs earn more. “just”

tiffs are entitled not to a or “fair” legal services, price for to the market Leatrice A. E. HESSEL and Gerald price legal Da Burlington services. Hessel, — Plaintiffs-Appellants, -, gue, U.S. (1992); Jenkins, L.Ed.2d 449 Missouri v. 2463, 2470, O’HEARN, al., et Defendants- Patrick Stenson, Blum v. Appellees. 886, 892-96, 1541, 1545-48, 91-3469. No. not the 79 L.Ed.2d 891 “[I]t judges litigation function of fee to deter Appeals, States Court of United equivalent just mine the of the medieval Circuit. Seventh price. lawyer It is to determine what the Argued June 1992. selling if he his would receive services being paid by in the market rather than 6, 1992. Decided Oct. In court order.” re Continental Illinois Litigation, 962 F.2d Securities

(7th Cir.1992). See also Kurowski v. Kra (7th Cir.1988);

jewski, 848 F.2d Gergen & Ger- (argued), Gergen

William Dam, Wis., plaintiffs-appel- for gen, Beaver lants. M. (argued), James

Timothy J. Strattner Brookfield, Doyle, Schellinger & Fergal, Wis., defendants-appellees. COFFEY, booked, POSNER, day the next police, Before EASTERBROOK, Judges. having Circuit haul been sifted the district at- torney, gave everything him back that had POSNER, Judge. Circuit except illegal lottery been seized tickets bring damages this suit for The Hessels themselves, money clearly obtained against under U.S.C. Wiscon- § from the sale of those tickets rather than police participated who in a sin officers inn, from the lawful activities of the and a premises for evidence of search of Charged few business records. with a felo- grant- gambling. judge The district illegal laws, ny gambling violation of Wisconsin’s summary judgment for the defendants. ed gambling which insist that is a state mo- nopoly, permitted plead Mr. Hessel was the officers ex- plaintiffs claim that guilty to warrant, a misdemeanor violation and was scope the search ceeded the of probation sentenced to a term of the Fourth of and of principles violation of the Amendment, person- public speaking gambling. items of on the and also stole evils of pop, cans of an An property pro- al soda odd sentence: his crime was —three camera, antique containing chest a small moting gambling, invading the state’s envelope containing in cash. and an $600 monopoly gambling. of But that is none of judge held that the officers had not our business. warrant, scope exceeded the challenge The Hessels’ to the sei plaintiffs had failed to connect the theft of arguably beyond scope zure of items of defendants, any of the the chest with may the search warrant seem academic. pop that the theft of the cans of soda was damages This is a in ques suit. items rendered nonactionable the venerable day they tion were returned the after were legal maxim de minimis non curat lex. seized. What harm can have done? been (The lawyers on both sides of this Well, may harm, there have been and of grammarians they, Latin it the call “de First, two sorts. the loss of the use while doctrine.) minimus" trivial, money day of their for a suspecting plaintiffs Rightly get spent money time and other operating illegal gambling were an busi- cost, represented items back a real Inn, passel ness out of their Lone Mallard a there is no minimum amount of controver police upon officers descended the inn cases, sy rights in federal civil as the Su authorizing armed with a search warrant preme way its to note in Court went out of (that is, illegal lottery them to seize tickets Taylor, 451 U.S. Parratt v. any lottery tickets for other than the 68 L.Ed.2d 420 own), “money state’s is the [sic] Second, or, although general they are fruit or has been used the commission of called, damages— “presumed” sometimes crime,” may a and “documents that consti- damages compensatory awarded without police tute evidence of a crime.” The con- proof injury not recoverable a thorough ducted a search and seized not —are only in constitutional tort suit when the only large illegal lottery tick- number fringement rights is a de of constitutional ets, money clearly obtained from the sale process right sense of a nial of due tickets, of other of these rec- business hearing, Piphus, Carey to notice and a likely ords to contain evidence of transac- 247, 262-64, 1051- tickets, legal lottery tions in such but also 55 L.Ed.2d 252 Lossman v. Pek tickets, machine, adding the cover of a arske, (7th Cir.1983),they book, telephone glasses, and a number of recoverable when substantive con jars, and other containers that held small rights, right free stitutional such as the money, together sums of with the monies speech, right dom of or the to be free from example, For themselves. next to the hot seizures, $6.20, are in dog containing unreasonable searches and machine was a dish fringed. Memphis Community money which was that customers had School 299, 310-11, Stachura, placed pay dogs. in the dish to for hot District v. 2544-45, When Mr. Hessel went to the station 91 L.Ed.2d 249 interpret the if the do this he cannot Federation American (1986); Gilpin v. v. Lu- narrowly. United warrant Employees, Municipal State, County & Cir.1991). 1210, 1215-16 cas, City 1810, 1314 Action Coun- Public v. Illinois Watseka “plain view” true that It is Cir.1986). So cil, 796 F.2d It joints. into the play some introduces away but hearing is taken right to your search executing a valid officers allows you case had your won have you wouldn’t or incrimina- contraband to seize more than must, get hearing, you course of see ting evidence any violation damages to which the nominal though ques- even their search prevailing rights entitles of constitutional in the warrant. Unit- named tion Community School Memphis plaintiff, 689, F.2d 694 714 Jefferson, v. ed States at Stachura, 477 U.S. supra, v. District quite is not Cir.1983). the warrant (7th So 11; Carey v. n. at 2543 11, 106 S.Ct. 308 n. But be. otherwise straitjacket it would the 266, S.Ct. at 98 supra, 435 U.S. Piphus, problem the unsolved the leaves doctrine Den- County City 1053; v. & O’Connor in- not but during the search items seen Cir.1990); (10th 1210, 1215 ver, F.2d 894 face, that criminating (5th 649, 651 Woods, 848 F.2d Lewis v. more extensive that a but are not seen Realty II Park Cir.1988); Village v. Davis light. Both sorts bring to would search Cir.1978),prove (2d 461, Co., 463 F.2d 578 if, though within seizure item evade inju- specific or other harm emotional some flexibly in- if compass of the warrant the your home But deprivation. ry from the it if the they are not within terpreted, pre- illegally you or are illegally invaded interpreted. narrowly warrant you voting speaking or from vented understood like to be We should not damages compensatory seek substantial gives the warrant that a search suggesting injury before proof of laying any without check. There a blank executing officers for not ask you do that jury, provided the Otherwise interpretation. to are limits ground damages on heavy that a search requirement constitutional “impor- right invaded constitutional particularity with describe Dis- Community School Memphis tant.” nullity. Cf. be would to be seized things Stachura, supra. trict v. 1075, Jenkins, 901 v. States United aside, we because all this is But disregard Cir.1990). (11th Flagrant 1081 de judge the district agree with it transforms the warrant terms of for the plaintiffs’ violate did not fendants warrant, the Fourth which general into plain the items rights by seizing v. forbids. United Amendment scope of beyond the were tiffs contend Cir.1988). (10th Medlin, 842 F.2d to entitled The were warrant. defendants flagrant disre ease of do not have We warrant, Przybylski, v. Patton rely on construed, the warrant Reasonably gard. v. (7th 697, Hill 699 seized, even the items all case covers this Cir.1989), 271, 277 McIntyre, out be turned to them though some of required to inter they were means investigation and were to the irrelevant interpret They obliged pret it. returned. mis have been narrowly, and would it theft of the alleged we turn to So in fact so, because items to do taken defendants, Officer pop. soda One. against the own necessary proceedings for proceed- Soblewski, disciplinary admitted whereas items always returned er can that he arising search ings out the next unlikely to found are not seized pop. We soda can of the Hessels’ drunk a looking them. Unit police go time it. that he stole admission this to be an take 1001, Blakeney, 942 F.2d ed States is that think of we can only The alternative is in a bet Cir.1991). prosecutor not ask He us does got he it as a bribe. from the the wheat position winnow ter value of possibility. consider are, Andresen cf. than chaff minimis, a dollar—de pop was under 479-82, soda Maryland, They admit that argue. defendants (1976), 2748-49, leading controversy tization of services. amount no minimum there is cases, scholarship for that on the de minimis rights work of civil in federal cases, said, federal-question quotes an old case which we in other doctrine matter us that remind “this maxim is never exceptions, correctly, think trivial Cir. Telford, positive wrongful inva applied Bart v. in the field of 1982), “even said that property.” we Max L. Veech sion of another’s curat de minimis non torts Moon, constitutional R. “De Minimis Non Cu & Charles not stand does 625. Bart Id. at lex.” Lex,” rat 45 Mich.L.Rev. Lopez, 419 U.S. See alone. Goss this, if yet despite all a loss is And 42 L.Ed.2d 576, 95 S.Ct. indefinite, only also so that small but Wright, Ingraham de have to be resources would substantial 51 L.Ed.2d 711 674, 97 S.Ct. — determining there was voted to whether McMillian, (1977); Hudson v. all, courts invoke the de any loss at will 117 L.Ed.2d -,-, — dismiss minimis U.S.-, Weisman, (1992); Lee v. case. The even if it is constitutional -, L.Ed.2d litigation the ben costs of such overwhelm (1992) (concurring opinion); Williams Board, 793 efits. v. Elections Cir.1988); Prosser 181, (7th Boles, F.2d 183 841 (three- (W.D.Wis.1992) F.Supp. 865 (7th 696 F.2d Reagan, v. Jones curiam), court) judge (per instanced “trivial Britton, 951 Cir.1983); v. Crawford-El population equality in between” differences (D.C.Cir.1991); v. 1322 Mann in Cir.1986); plans: “the dilution (5th reapportionment two Smith, 85 796 power resulting from (6th any electoral 689 5 voter’s 775 F.2d n. Gray, Boals in of voters Psy- percent a 1 difference number Cir.1985); Reserve v. Western Carter register in most Center, to F.2d would too trivial 767 be chiatric Habilitation Cir.1985) curiam); power,” and (per analysis political of 1 sensitive 272 n. disregarded in the accordingly High School Athletic would be v. Louisiana Walsh Ass’n, appraisal plans. 158 court’s Williams Gott, guard’s curl example of a gave Boles Collinson Cir.1990) (dissenting opinion). lip prisoner. at a Cf. Mann ing his might Smith, 796 F.2d at 85. supra, This (and dicta that’s what Can these Soblewski comparable a case Office see, Carter, which, are, as we shall except can soda of merely had breathed law even the Sixth probably good is to reluctant pop, the Hessels had been Circuit) a mini- the absence of coexist with maxim’s “de The drink it afterward. from requirement? controversy mum amount expensive and mischie sign prevent is to is dif- small definite loss We think so. A real in no litigation, which can result vous The from a small indefinite one. ferent may oc complainant, benefit but to merely or torts does not excuse crimes law suitors.” delay injury to other casion inflicted is small. You the harm because Highway Au Jersey Newv. Schlichtman person kill privileged to a are not because 464, 472, A.2d N.J.Super. thority, live, a to or steal only he has one minute to (1990), Swedesborough quoting from a size penny Rockefeller. (Ch. Shivers, N.J.Eq. 453 Church v. jurisdiction, sometimes to loss is relevant 1863). v. Man Mills also Manchester See always dam- punishment, and often to (1876). little chester, It has N.H. of rarely if to the ages, but ever existence in which cases proper application or no strange wrong. a doc- legal It would be is, though the loss monetary cost of permissible long so that theft is trine right tiny, readily determinable. police who is small—that the amount taken depends recover loss a suit to steal, maintain impunity conduct searches jurisdictional only on the in such a case property, but not say, of the owner’s $10 controversy, here zero. minimum amount longer talk of theft more. We would no more than the court meant We think species it a call new such but Woods,supra, said in domain, priva- this it Lewis v. step toward the when eminent 33 L.Ed.2d 570-71, 92 S.Ct. constitu- “A violation F.2d at (1972). For de minimis.” rights is never tional judge the district in which was a case of a to a theft label the fatal had affixed There can be cases like that in th plaintiff amplifier property fact, radio area as well-in it was witi parallel area of In the deprivations property bought $76.90. reference to tha~ use, the public owner taking property for Supreme the imis doctrine in the Goss case. Court mentioned the S mm regardless compensation is entitled If Soblew Loretto is taken. property little how merely pop ski had touched the can of soda Corp., CATV Manhattan Teleprompter "deprivation" that would be a from the concerns of the Fourth and Fift~ so remot 73 L.Ed.2d 419,102 S.Ct. deprivatior Amendments as to count as no taking is curat lex minimis non maxim de at all. But there is no doubt that person's property wrongful, in a broader often, typically, used perhaps as merel3 touching harm, often sense, types of to denote it without the owner's conseni courts do trivial, always for which not be. The de minimis doctrine iE losses, provid remedy legal should think a not intended for definite howevei out, small, wrongs. point Moon ed. As Veech inflicted definite Carter Psychiatric to meliorative closely related v. Western Reserve Habilita performance, Center, supra, holding substantial doctrines such as tion that a two edges day suspension pay publk sharp designed to smooth without of a however, doctrines, rules; employee mmnimis, such technical was de fits neither bir (smal to deliberate any application little if have of the doctrine as we understand it loss, wrong), minimis of the de wrongs. This version indefinite or no actionable important surprised constitution has been we are not that it was distin issue whether guished by al which cases to death the same court ir “liberty” of deprived had been plaintiff Gray, supra, Boats v. within four months. process meaning due within of suggest amount do that We of a invasion student’s Is it an clause. wrong completely are amount of harm and to to refuse public a school liberty for big about People care more unrelated. v. grade? Raymon erroneous correct ones, so are more than little harms District, 639 Independent School Alvord wrongful. regard the former to likely by the Cir.1981) (an opinion, glass a helped to himself If had Soblewski v. of Lewis by the author way, written water, question a would (metered) tap of liberty, if the Woods). taxpayer’s Of a committed he had whether presented of displays a lack Service Internal Revenue law should constitutional wrong of which pro accuracy, and courtesy, restraint metered, is Even when water take notice. Cameron cessing his tax return? of they of it as quantities treat small people Service, 773 Revenue Internal strang free, even entitle which a were Cir.1985). Does bride have They glass of it. to a “help himself” er to notion the constitutional right founded with same pop of soda city-hall treat cans her do not slacks to liberty to wear of Katz, 380 insouciance. marriage? Rappaport public If a (S.D.N.Y.1974). F.Supp. 808 of proof concerns The last issue give to its promise its employer breaks liability. We know individual defendants’ during pastry fresh Danish employees do not pop. soda We one of who took can of con breaks, deprivation this a coffee cans, the other two who took know Brown v. liberty property? stitutional inside, or the the camera chest with antique Cir. Brienen, For that envelope its inside. $600 with point, main 1983). least the point, there real know whether we do not matter are small in these cases harms that camera, chest, or an ly antique was an wrong. Cf. no actionable that there is but $600, plaintiffs envelope with because Roth, 408 U.S. Regents Board plausibly deny guilt. jury may before dants can A inexplicably waited five months impossible lying. had been left find it to determine who is complaining that these items just say But pre- that is that some cases are inventory that off the prove more difficult than others. The pared the items seized the search. Span Ybarra v. decision of on sum- controversial But issue cannot be resolved gard, 25 Cal.2d (1944), 154 P.2d 687 mary judgment. ipsa loquitur held that the doctrine of res items, may assume that the stolen We “conspiracy could used to thwart a were, by many taken however there personnel silence” of medical who refused good 14 defendants. That is not one of the to disclose which of their number had in summary judgment. enough to fend off jured plaintiff, hospi who into the went allege conspiracy. And plaintiffs appendectomy emerged tal for an liability to superiors’ doctrine of there is no injury a serious to his shoulder and neck. City Jones they might appeal, (so any approach Whether such redolent of (7th Cir.1988), Chicago, punishment) might collective have been imputing liability might such as allow plaintiffs used in this case we need higher ups. the rank and file to the decide; they urged All have not it. respondeat There isn’t even a doctrine of they argue they is that us should be cases, and superior in constitutional tort permitted discovery. They hope more employed anyway agencies maybe they damaging can elicit admissions named as defendants are not themselves from some of the defendants or trace the plaintiffs do not at- defendants. And hope may stolen items. Their be well of Summers tempt principle to invoke the founded, should have made the Tice, (1948), 33 Cal.2d 199 P.2d argument district court when the Laboratories, 26 Cal.3d Sindell v. Abbott summary judgment. defendants moved for (1980), Cal.Rptr. 607 P.2d 924 56(f) Fed.R.Civ.P. authorizes the district persons negligent commit a act or who acting on court to hold off a motion for product may sell a defective be liable to a summary judgment opponent until the one of their even if the victim of number discovery. plaintiffs conduct more did prove cannot which of the defen- victim discovery. more time for It is not ask for dants caused his harm. That leaves the now too late. pure principle punishment of collective as The decision of the district court is there- possible liability the in this sole basis except respect fore affirmed with to Offi- principle Happily case. that is not —not theft of the can of soda cer Soblewski’s generally, anyway part of our law. —a pop. Fairman, (But see Ustrak v. (7th Cir.1986); O’Leary, Hamilton v. Part, Part, Affirmed in Reversed in and (7th Cir.1992) (dissent- Remanded. ing opinion).) Proximity wrongdoer to a punishment. authorize Those offi- does not COFFEY, Judge, concurring. Circuit participated cers in the search but did who majority’s up- in I concur the decision any property not steal of the Hessels’ are police sei- holding the defendant officers’ way in in innocent which the defendants plaintiffs’ illegal lottery tickets zure of the Summers and Sindell were in not —for all with the sale of and other items associated harmful, of those defendants done a lottery scope the of the tickets as within thing, dangerous, albeit not all had harmed sepa- forced to write search warrant. I am plaintiff. particular the There is no more express my disagreement with the rately to liability police reason to fix on these 14 unnecessarily expand majority’s attempt to population than the entire officers on doctrine, permitting plain the thus view Horicon, Wisconsin, the site of the Lone police items not authorized officers to seize Mallard Inn. beyond in the warrant or items which are Well, maybe recognized legal parameters a little more reason. The the plaintiffs plain exception are in a Each of the defen- to the Fourth Amend- bind. view returned_” Maj.Op. at 302. majority requirement. ment warrant Blakeney decision the use of majority’s his or exercise can states officer discretion to exercise executing the police officers permit when own discretion her view doctrine plain not authorized invoking items the seize and when warrant incrimina a case Blakeney not or items warrant because inappropriate in items “because and should facts ting unique set of to its limited face the against proceedings necessary executed search warrant apply to the for fact whereas be returned always owner the Blakeney, In restaurant. Hessels’ unlikely to are not seized items plain found the view found Sixth Circuit looking police go the time the next for con- a suitcase seizure applicable to the ” (citing United at 302 Maj.Op. them. incriminating non-incrimi- and taining both 1001, 1028 Blakeney, 942 F.2d States F.2d at Blakeney, 942 nating documents. disagree, Cir.1991)). respectfully I decision Circuit’s The Sixth 1028. magistrate is the it emphasize of items seizure permitting Blakeney law case present under is authorized who plain the warrant specified in issuance discretion to exercise “Agent facts: Sadow- to its is limited view to the discre “nothing is left con- suitcase the brown testified that ski executing the warrant.” tion of the officer paperwork amount a ‘tremendous tained U.S. California, 496 ’ Horton through He sifted other items.... (1990) L.Ed.2d the suit- to seize decided and ... the items States, v. United (quoting Marron 13. n. entirety.” Id. in its case (1927)); see L.Ed. 231 reasoned Blakeney court Because Maryland, also Andresen officer impracticable it was 480, 96 S.Ct. site of at the record “inventory and Shoffner, United States suit- contents the numerous search Cir.1987) (the warrant 619, 630-31 concluded ...,” Circuit the Sixth case specificity reasonable describe with should within items irrelevant “seizure of seized, so that of items to be categories relevant along with suitcase exercise upon called are not officers fourth amend- not violate does ment_” warrant); executing when discretion 13. I & have at 1028 n. Id. Somers, United Blakeney decision disagreement with Cir.1991) (search warrant should unique set particular applied to its rea objects of the search describe However, Blakeney decision of facts.2 elabo not be and need specificity sonable use officers not state did detailed).1 rately warrant, it rather executing a discretion holding that “defendants After held warrant,” majori- the rely the entitled case, this of the circumstances “under to con- decision Blakeney the ty utilizes and immediate was both cause probable officers “were law enforcement that clude executing officers. to the apparent nar- interpret obliged to warrant] not [the documents of these incriminating nature a have been mistake rowly, and it would produc- methamphetamine relating to the irrelevant ...” because to do so for them to the execut- readily apparent was tion necessary in not fact or “items items that Blake- were aware ing officers who always can the against owner proceedings records, adding sales, business sufficiently ticket so the definite must be 1. "[T]he bags machine, jars, glasses, and of executing identify the a can number it the officer that property certainty." money La- came containing of within sought reasonable sums with small 3.4(f), Israel, at (lottery § Procedure Criminal tickets scope & search warrant of the Fave the Muldowney, tickets, NJ. (1984) (quoting State tab the State—tear sanctioned not money, (1972)). crime, A.2d 26 money used fruit aof crime, constituting aof documents commission case are distin- the in instant items seized 2. items, crime). seizing the these In evidence in items seized the facts and guishable from invocation of officers’ enforcement law plain Blakeney, in Blakeney. the items seized Unlike proper. was view doctrine lottery proceeds of illegal tickets seized 465-66, 91 Coolidge, 403 U.S. at methamphet- (citing fugitive from a ney was 2037-38). fore- For the at charges. S.Ct. conspiracy amine items reasons, of these seizure going justifica- original extension “[T]he unlawful.” was only it is immedi- legitimate is where tion Thus, they at 1028. Blakeney, police to the that ately apparent in engage Blakeney them; ‘plain did agent in have evidence before seizing docu- in exploratory search general may not used to extend be view’ conspiracy be- drug to the ments related one exploratory search from general incriminating nature items’ cause the something incrimi- object until to another Id. Under immediately apparent. emerges.” nating at last Blakeney unique circumstances Id. along items of irrelevant the seizure the ma accepted precedent, Despite this to the items of relevant seizure reason unjustified line of jority pursues an Fourth violate the did not drug conspiracy gi legal support, and takes ing without v. New Coolidge Id. (citing Amendment. may stating that officers leap ant in 443, 464-69, 91 S.Ct. Hampshire, during the search seize “items seen (1971) (plu- 2037-40, 29 L.Ed.2d face, on their incriminating majority misapplies rality opinion)). but that a more that are not seen items “not in fact stating items Blakeney in light.” bring to extensive search would against the own- proceedings necessary for added). (emphasis If the Maj.Op. at always they] be since seized er be [can expanded interpretation majority’s new and returned_” Blakeney Maj.Op. at 302. law, plain view doctrine becomes proposition that not stand for does ” re “immediately apparent then the be seized may non-incriminating items The Su to exist. quirement will cease though doctrine even plain view within the recently Coolidge preme most Court to be irrelevant they are determined only must explained that “not in Horton later at a to the owner can be returned view, its incrimina plain be item only Blakeney to hold I date. read ‘immediately be must also ting character incriminating nature whose those items ’ ” 136-38, Horton, at apparent. seized under immediately apparent be Coolidge, (quoting at attempt In its plain doctrine. view 2038) (emphasis at at enforcement authority of law expand the “immediately appar added). Without exception’s plain view beyond the officers unautho police officers requirement, ent” limits, majority has mis- permissible now would discretion Blakeney rized to exercise permitting as characterized items and seize non-incriminating items free exercise discretion any seizure incrimina if the items’ plain to the Hes- even always view be returned could immediately apparent. ting nature were not sels. Horton, 136-38, 110 S.Ct. U.S. at See seizure It is established well S.Ct., 491, 91 Coolidge, 2308; U.S. at permitted plain view under evidence in Thus, majority disagree I with the at 2038. Coolidge v. New requirements use should able officers Coolidge, 403 U.S. at Hampshire. seizing plain their discretion Coolidge states Initially, at 2037. S.Ct. from the the wheat later “winnow view and prior justi have police officer must Rather, stated as Maj.Op. 302. chaff.” at the being premises the on fication for doc plain view earlier, I the understand Next, Id. executing a warrant. course officers enforcement trine to mean law plain view item in may seize an the officer almost items that only seize those may inadvertently he or she comes only when immediately ex and out” at them “jump immedi it is piece of evidence and across a inad incriminating character when hibit an evi apparent the the ately officer Hor plain view. vertently discovered Hor incriminating nature. is of an dence 2307; 134-36, 110 ton, S.Ct. 128, 134-36, U.S. at 496 California, 496 U.S. ton v. York, 573, 588, 100 (1990) Payton v. New 2301, 2307, 110 L.Ed.2d 112 308 1990s consider- unnecessary in the see zure 1380, L.Ed.2d 639 63 S.Ct. today, police the officer ing fact that the Hicks, 107

Arizona v. law en- many local including federal (Sca- (1987) 1149, 1153, 347 94 L.Ed.2d officials, can obtain a search forcement enforce lia, J.). example, if the law For many jurisdic- telephone the via warrant autho have a search warrant ment officers Cuaron, F.2d States 700 tions. United merchandise, of stolen rizing the seizure Cir.1983); Peck, K. Adam a Motorola crime, television i.e. fruits of a Exception: the Premises Securing executing home, upon the war from a Balance, 38 Proper the A Search for it is a Zenith T.Y. they discover rant (1985). 1589, 1601-10 & n. 75 Vand.L.Rev. corre numbers and/or identification serial Pro- fact, Federal Rules of Criminal In the in the warrant described sponding to those magistrate to issue war- cedure authorize connected immediately appears and it telephone communications on rants based activity detailed criminal with the testimo- provides sworn oral (1) the officer Zenith televi warrant, the seizure (2) prepares phone; the officer ny the over See, e.g., Unit permissible. sion would be re- original that will “duplicate warrant” Jefferson, 714 F.2d ed States phone over the is read flect verbatim what furs, Cir.1983) (where jewelry and the “origi- the magistrate prepares to the who excep plain the view seized under firearms (3) warrant;” magistrate issues nal incrimina immediately possessed an tion cause, warrant, finding probable after drug illegal fruits of the ting character as requesting the “by directing person Hicks, 480 U.S. at dealing operation); magistrate’s sign the Federal cf. warrant (where police 107 S.Ct. at original warrant.” duplicate on the name equip expensive stereo two sets of Cuaron, (quoting seized Fed. F.2d at 588 verifying apartment Alternatively, after squalid 41(c)(2)). in a ment Rule R.Crim.P. premises” seri with an- equipment’s “secure the police stolen from were standing guard perform numbers). other officer al dwelling building upon the search hand, recognizes majority the one On United of the search warrant. the arrival police officers’ are limits to the that there (2d Agapito, under “not like to be powers and would Diaz, States v. Cir.1980); United suggesting that a search stood as Peck, Cir.1978); (2d Adam K. executing officers a blank check.” gives the Exception: A Premises Securing gives majority further Maj.Op. at 302. The Balance, 38 Vand. Proper Search for permits police a “blank check” officers Diaz, In 1589, 1603-05 L.Rev. neither inad to seize items that were them police court noted that because immediately ap nor vertently discovered to arrest the defen- probable cause without being connected with parent to them as children, only practical dant’s wife and (citing activity. Maj.Op. at 302 criminal the evidence consist- preserving means of Jefferson, United States $14,000 telephone related and a book ing of v. Blake (7th Cir.1983); United States for the drug conspiracy to the occupants and the ney, stand watch over cf and then arrived premises until a warrant Maryland, 479- Andresen Diaz, F.2d at 824 seize the evidence. “securing premis- n. 3. Because the giving its (1976)). panel, justifying practical means of most es” is often the officers, considers discretion to items, incriminating preserving possibly “flexibly inter unless the warrant Diaz, prem- police should secure incriminating those items not preted” officer to the arrival of an wait ises and/or plain or not seen in view would their face incriminating items described seize the pan Maj.Op. at 302. seizures. evade id. See warrant. plain doctrine reasoning that view el’s expanded to include those non- plain view doctrine There is a reason should be inadvertently discover- sei- the seizure of incriminating that would evade limits items case, illegal lot- (in Hessels’ ed tickets, proceeds, business CORPORATION,

tery the ticket TRUST RESOLUTION machine) records, to items adding an Savings Peoples as Receiver character. incriminating possess Association, F.A., Plaintiff-Ap Loan Jefferson, See United pellee, Cir.1983). The rationale plain exception is that a view plain for the RUGGIERO, Ruggiero, Angelo Mid Gina initially valid not turn an seizure “will view Company, and Trust west Bank limited) ‘gener- search into a (and therefore Agreement under Trust dated Trustee one_” 136-38, Horton, 496 U.S. at al’ July 1988 and known as Trust No. (quoting Coolidge, 403 at 2308 110 S.Ct. Bar, 88-07-5534, and Hillside Cafe & 2040-41). 469-71, As 91 S.Ct. at Inc., Defendants-Appellants. stated, Circuit the Seventh Jefferson exist between seized “logical nexus” must No. 91-2095. items listed items and those but unnamed Appeals, United States Court of the permit the seizure in the warrant Seventh Circuit. plain view doc- items within unnamed 695. Were 714 F.2d at Jefferson, trine. Argued Feb. 1992. plain scope view expand we to Decided Oct. 1992. nexus the court beyond logical search warrants Jefferson, described in broadly that offi- interpreted so

could be seizing items outside

cers would be

scope of the warrant. my con- separately emphasize

I write expan-

cern with the court’s unwarranted to include plain view doctrine

sion and non-incrimina-

the seizure of irrelevant in the search war-

ting items not described into “A man’s home is his castle”

rant. King may enter.” “not even the Cf. Dept., Post

Rowan v. United States Office 1484, 1491, 397 U.S. City Watseka Council, Action

Illinois Public see also Texas

Brown, 730, 739, 103 S.Ct. (1983) (police officers 75 L.Ed.2d 502 executing items in the course of seize they honestly and

a search warrant part of the criminal

sincerely believe is

activity); Royer, Florida v. 75 L.Ed.2d 229

(1983)(“the scope must limited in search justified by particular

to that which Thus, exception”).

purposes by the served result, dis- majority’s

I concur in the

agree majority’s expansion of the with the

plain view doctrine.

Case Details

Case Name: Gerald E. Hessel and Leatrice A. Hessel v. Patrick O'Hearn

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Oct 6, 1992

Citation: 977 F.2d 299

Docket Number: 91-3469

Court Abbreviation: 7th Cir.