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Theft of Property During Search by Police Officer Actionable

The Seventh Circuit Court of Appeals held that a police officer may be sued
for the theft of a soda pop during a search executed pursuant to a warrant.
This action was filed by the owner of the Lone Mallard Inn after 14
Wisconsin police officers searched the Inn pursuant to a valid warrant to
look for illegal lottery tickets, money related to their sale, and other
evidence of illegal gambling. The district court entered summary judgment
for the 14 police officers.

The Seventh Circuit found the officers had seized items not included within
the warrant, but these items were returned the next day; therefore, no harm
was done to amount to a constitutional violation meriting damages. However,
the plaintiffs also asserted that three cans of soda pop, an antique chest
containing a small camera, and an envelope with $600 was stolen by the
officers. The plaintiffs were unable to determine or allege who stole the
cash, camera, and cans of the soda pop. They were, however, able to
identify an officer who admitted he drank a soda pop, which the court
deemed as an admission he stole it.

The Court said that while the cost of the soda pop is minimal, there is no
minimum amount of controversy in federal civil rights cases or other
federal-question cases. The de minimus doctrine "is never applied to the
positive and wrongful invasion of another's property." The court said that
to set a limit on the amount an officer can steal during a search would be
a step toward the privatization of police services or a new species of
eminent domain. However, as the plaintiff's have not alleged the remaining
missing items were taken during a conspiracy and they cannot identify the
responsible party(s) that claim must fail. The matter was affirmed in part,
but reversed for further proceedings on the stolen soda pop. See: Hessel v.
O'Hearn, 977 F.2d 299 (7t11 Cir. 1992).

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Related legal case

Hessel v. O'Hearn

Hessel v. O'Hearn, 977 F.2d 299 (7th Cir. 10/06/1992)


[2] No. 91-3469

[3] 977 F.2d 299

[4] decided: October 6, 1992.


[6] Appeal from the United States District Court for the Eastern District of Wisconsin. No. 90 C 731. Terence T. Evans, Chief Judge.

[7] For GERALD E. HESSEL, LEATRICE A. HESSEL, Plaintiffs-Appellants: William Gergen, 414/887-0371, GERGEN & GERGEN, 105 Front Street, P.O. Box 453, Beaver Dam, WI 53916, USA.


[9] Before Posner, Coffey, and Easterbrook, Circuit Judges.

[10] Author: Posner

[11] POSNER, Circuit Judge. The Hessels bring this suit for damages under 42 U.S.C. § 1983 against 14 Wisconsin police officers who participated in a search of their premises for evidence of illegal gambling. The district Judge granted summary judgment for the defendants.

[12] The plaintiffs claim that the officers exceeded the scope of the search warrant, in violation of the principles of the Fourth Amendment, and also stole items of personal property--three cans of soda pop, an antique chest containing a small camera, and an envelope containing $600 in cash. The Judge held that the officers had not exceeded the scope of the warrant, that the plaintiffs had failed to connect the theft of the chest with any of the defendants, and that the theft of the cans of soda pop was rendered nonactionable by the venerable legal maxim de minimis non curat lex. (The lawyers on both sides of this case, no Latin grammarians they, call it the "de minimus" doctrine.)

[13] Rightly suspecting that the plaintiffs were operating an illegal gambling business out of their Lone Mallard Inn, a passel of police officers descended upon the inn armed with a search warrant authorizing them to seize illegal lottery tickets (that is, tickets for any lottery other than the state's own), "money which [sic] is the fruit or has been used in the commission of a crime," and "documents that may constitute evidence of a crime." The police conducted a thorough search and seized not only a large number of illegal lottery tickets, money clearly obtained from the sale of other of these tickets, and business records likely to contain evidence of transactions in such tickets, but also legal lottery tickets, an adding machine, the cover of a telephone book, and a number of glasses, jars, and other containers that held small sums of money, together with the monies themselves. For example, next to the hot dog machine was a dish containing $6.20, which was money that customers had placed in the dish to pay for hot dogs. When Mr. Hessel went to the police station the next day to be booked, the police, their haul having been sifted by the district attorney, gave him back everything that had been seized except the illegal lottery tickets themselves, the money clearly obtained from the sale of those tickets rather than from the lawful activities of the inn, and a few business records. Charged with a felony violation of Wisconsin's gambling laws, which insist that gambling is a state monopoly, Mr. Hessel was permitted to plead guilty to a misdemeanor violation and was sentenced to a term of probation and of public speaking on the evils of gambling. An odd sentence: his crime was not promoting gambling, but invading the state's monopoly of gambling. But that is none of our business.

[14] The Hessels' challenge to the seizure of items arguably beyond the scope of the search warrant may seem academic. This is a damages suit. The items in question were returned the day after they were seized. What harm can have been done? Well, there may have been harm, and of two sorts. First, while the loss of the use of their money for a day was trivial, the time spent to get the money and other items back represented a real cost, and there is no minimum amount of controversy in federal civil rights cases, as the Supreme Court went out of its way to note in Parratt v. Taylor,451 U.S. 527, 529, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). Second, although general or, as they are sometimes called, "presumed" damages--compensatory damages awarded without proof of injury--are not recoverable in a constitutional tort suit when the only infringement of constitutional rights is a denial of due process in the sense of a right to notice and a hearing, Carey v. Piphus,435 U.S. 247, 262-64, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978); Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir. 1983), they may be recoverable when substantive constitutional rights, such as the right to freedom of speech, or the right to be free from unreasonable searches and seizures, are infringed. Memphis Community School District v. Stachura,477 U.S. 299, 310-11, 91 L. Ed. 2d 249, 106 S. Ct. 2537 (1986); Gilpin v. American Federation of State, County & Municipal Employees, 875 F.2d 1310, 1314 (7th Cir. 1989); City of Watseka v. Illinois Public Action Council, 796 F.2d 1547, 1559 (7th Cir. 1986). So if your right to a hearing is taken away but you wouldn't have won your case had you had a hearing, you must, to get more than the nominal damages to which any violation of constitutional rights entitles a prevailing plaintiff, Memphis Community School District v. Stachura, supra,477 U.S. at 308 n. 11; Carey v. Piphus, supra, 435 U.S. at 266; O'Connor v. City & County of Denver, 894 F.2d 1210, 1215 (10th Cir. 1990); Lewis v. Woods, 848 F.2d 649, 651 (5th Cir. 1988); Davis v. Village Park II Realty Co., 578 F.2d 461, 463 (2d Cir. 1978), prove some emotional harm or other specific injury from the deprivation. But if your home is illegally invaded or you are illegally prevented from voting or speaking you can seek substantial compensatory damages without laying any proof of injury before the jury, provided that you do not ask for heavy damages on the ground that the constitutional right invaded was "important." Memphis Community School District v. Stachura, supra.

[15] But all this is an aside, because we agree with the district Judge that the defendants did not violate the plaintiffs' rights by seizing the items that the plaintiffs contend were beyond the scope of the warrant. The defendants were entitled to rely on the warrant, Patton v. Przybylski,822 F.2d 697, 699 (7th Cir. 1987); Hill v. McIntyre, 884 F.2d 271, 277 (6th Cir. 1989), which means they were required to interpret it. They were not obliged to interpret it narrowly, and they would have been mistaken to do so, because items not in fact necessary for proceedings against the owner can always be returned whereas items not seized are unlikely to be found the next time the police go looking for them. United States v. Blakeney,942 F.2d 1001, 1028 (6th Cir. 1991). The prosecutor is in a better position to winnow the wheat from the chaff than the police are, cf. Andresen v. Maryland, 427 U.S. 463, 479-82, 49 L. Ed. 2d 627, 96 S. Ct. 2737 (1976), and he cannot do this if the police interpret the warrant narrowly. United States v. Lucas, 932 F.2d 1210, 1215-16 (8th Cir. 1991).

[16] It is true that the "plain view" doctrine introduces some play into the joints. It allows officers executing a valid search warrant to seize contraband or incriminating evidence that they see in the course of their search even though the items in question were not named in the warrant. United States v. Jefferson,714 F.2d 689, 694 (7th Cir. 1983). So the warrant is not quite the straitjacket it would otherwise be. But the doctrine leaves unsolved the problem of items seen during the search but not incriminating on their face, and items that are not seen but that a more extensive search would bring to light. Both sorts of item may evade seizure if, though within the compass of the warrant if flexibly interpreted, they are not within it if the warrant is narrowly interpreted.

[17] We should not like to be understood as suggesting that a search warrant gives the executing officers a blank check. There are limits to interpretation. Otherwise the constitutional requirement that a search warrant describe with particularity the things to be seized would be a nullity. Cf. United States v. Jenkins,901 F.2d 1075, 1081 (11th Cir. 1990). Flagrant disregard for the terms of the warrant transforms it into a general warrant, which the Fourth Amendment forbids. United States v. Medlin,842 F.2d 1194, 1199 (10th Cir. 1988). We do not have a case of flagrant disregard. Reasonably construed, the warrant in this case covers all the items seized, even though some of them turned out to be irrelevant to the investigation and were returned.

[18] So we turn to the alleged theft of the soda pop. One of the defendants, Officer Soblewski, admitted in disciplinary proceedings arising out of the search that he had drunk a can of the Hessels' soda pop. We take this to be an admission that he stole it. The only alternative we can think of is that he got it as a bribe. He does not ask us to consider that possibility. The value of the soda pop was under a dollar--de minimis, the defendants argue. They admit that there is no minimum amount in controversy in federal civil rights cases, or for that matter in other federal-question cases, with trivial exceptions, but remind us that in Bart v. Telford,677 F.2d 622 (7th Cir. 1982), we said that "even in the field of constitutional torts de minimis non curat lex." Id. at 625. Bart does not stand alone. See Goss v. Lopez,419 U.S. 565, 576, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1975); Ingraham v. Wright, 430 U.S. 651, 674, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977); Hudson v. McMillian, 117 L. Ed. 2d 156, 112 S. Ct. 995, 1000 (1992); Lee v. Weisman, 120 L. Ed. 2d 467, 112 S. Ct. 2649, 2678 (1992) (concurring opinion); Williams v. Boles, 841 F.2d 181, 183 (7th Cir. 1988); Jones v. Reagan, 696 F.2d 551, 555 (7th Cir. 1983); Crawford-El v. Britton, 293 U.S. App. D.C. 47, 951 F.2d 1314, 1322 (D.C. Cir. 1991); Mann v. Smith, 796 F.2d 79, 85 (5th Cir. 1986); Boals v. Gray, 775 F.2d 686, 689 n. 5 (6th Cir. 1985); Carter v. Western Reserve Psychiatric Habilitation Center, 767 F.2d 270, 272 n. 1 (6th Cir. 1985) (per curiam); Walsh v. Louisiana High School Athletic Ass'n, 616 F.2d 152, 158 (5th Cir. 1980); Collinson v. Gott, 895 F.2d 994, 1006 (4th Cir. 1990) (dissenting opinion).

[19] Can these dicta (and that's what they are, except Carter, which, as we shall see, is probably not good law even in the Sixth Circuit) coexist with the absence of a minimum amount in controversy requirement? We think so. A small definite loss is different from a small indefinite one. The law does not excuse crimes or torts merely because the harm inflicted is small. You are not privileged to kill a person because he has only one minute to live, or to steal a penny from a Rockefeller. The size of the loss is relevant sometimes to jurisdiction, often to punishment, and always to damages, but rarely if ever to the existence of a legal wrong. It would be a strange doctrine that theft is permissible so long as the amount taken is small--that police who conduct searches can with impunity steal, say, $10 of the owner's property, but not more. We would no longer talk of theft in such a case, but call it a new species of eminent domain, or a step toward the privatization of police services. The leading work of scholarship on the de minimis doctrine quotes an old case which said, we think correctly, that "this maxim is never applied to the positive and wrongful invasion of another's property." Max L. Veech & Charles R. Moon, "De Minimis Non Curat Lex," 45 Mich. L. Rev. 537, 550 (1947).