CA7: In § 1983 case, the SW was issued with PC and wasn’t overbroad

In a § 1983 case over a search warrant issued during the “John Doe” investigation from Wisconsin Gov. Scott Walker’s tenure as Milwaukee County Executive, the plaintiff’s claim fails on the officers allegedly knowing the thought processes of the judge who issued the warrant allegedly without probable cause (but it was) and a claim over unreasonable execution of the warrant. It was not too broad nor executed unreasonably. Archer v. Chisholm, 2017 U.S. App. LEXIS 16493 (7th Cir. Aug. 29, 2017):

Proving that a judge was not “neutral and detached” is difficult to do; such arguments rarely succeed because they demand exceptional circumstances. Wisconsin has a presumption of regularity that attaches to the actions of state judicial officers. See State ex rel. LaFollette v. Cir. Ct. of Brown Cnty., Br. 1, 37 Wis. 2d 329, 155 N.W.2d 141, 149 (Wis. 1967); cf. U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10, 122 S. Ct. 431, 151 L. Ed. 2d 323 (2001) (presumption of regularity attaches to actions of government agencies). But see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-28, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979) (local justice did not act with the required neutrality and detachment when he participated in and directed the seizure of items during the execution of a warrant he had issued). Archer has offered nothing in her complaint that would rebut that presumption. At best she has expressed a hunch that something went awry. But she must do more than raise questions about the judge’s action; she must allege enough facts to present a plausible violation. See Twombly, 550 U.S. at 570; Adams v. City of Indianapolis, 742 F.3d 720, 728-29 (7th Cir. 2014).

The only factual allegations that head in this direction—facts which also were not in her amended complaint—concern time sheets and reimbursement logs that the John Doe judge (who was paid by the hour) submitted to the state. Those sheets apparently reflected that he did not report doing work on the John Doe investigation on the date when Stelter submitted his sworn statement and the judge signed the warrant. From these logs, timestamps, and the judge’s report of work done some 30 miles away, Archer deduces that there was not enough time in the day for the judge to review Stelter’s warrant package. Archer adds a roundabout challenge to the authenticity of the warrant, noting that the judge did not seek reimbursement for travel to Milwaukee (where the warrant was issued), even though he did not live there. Finally, Archer’s handwriting expert “was unable to confirm” that the signature on the warrant matched other documents signed by the judge.

. . .

[as to the search and alleged overbroad warrant:]

But the officers did not look for anything the warrant did not authorize, and we already have found that the list was not impermissibly vague. The affidavit expressly permitted the seizure of “any computer or electronic communication device of Archer containing any records related” to the two contracts and the other components of the investigation. The fact that these electronic devices contained documents other than those authorized for seizure under the warrant is of no moment. If the possible existence of unrelated materials were enough to invalidate a warrant, computer searches would be impossible in drug cases, financial fraud cases, internet child pornography cases, and a host of others. The target’s privacy interest in unrelated materials is typically addressed by the search methods used by the police after seizure, because an ex ante screen is impossible. Here, Stelter’s affidavit specifically noted the officers’ desire to “search … documents within” any computer or device that was seized. Because the records authorized to be seized “could be essentially anywhere on the computer,” the officers were entitled to take any storage devices capable of holding responsive records.

Moreover, no Fourth Amendment violation occurred when officers searched Archer’s dresser, cabinets, and basement. Generally, officers are entitled to search anywhere the items to be seized might likely be discovered, so long as that is within the place authorized to be searched. See United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982); Mann, 592 F.3d at 782-83. The objects of the search set the boundaries of the scope; “[i]f you are looking for an adult elephant, searching for it in a chest of draws is not reasonable.” Platteville Area Apt. Ass’n v. City of Platteville, 179 F.3d 574, 579 (7th Cir. 1999). Here, the items expressly authorized to be seized—paper, digital records, and electronic devices—were closer in size to a cat than an elephant. Digital records could be stored on devices such as thumb drives, hard drives, or CDs, which could be almost anywhere in the house. Thus, the officers were authorized to look in any of those places. See United States v. Aghedo, 159 F.3d 308, 311 (7th Cir. 1998).

Archer also objects to the manner of the search, which she describes as so violent that it independently violated the Fourth Amendment. See L.A. County v. Rettele, 550 U.S. 609, 614, 127 S. Ct. 1989, 167 L. Ed. 2d 974 (2007) (“Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time.”). She points to the presence of a battering ram (that was not used), the officers’ entering the home with “guns drawn” (they apparently put them away quickly), the presence of a news reporter (who was on the sidewalk during the search), and the time of day (early on a weekday morning).

The Fourth Amendment prohibits the use of excessive force during a seizure. See Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989); Estate of Escobedo v. Bender, 600 F.3d 770, 780 (7th Cir. 2010). Rettele holds that “[t]he test of reasonableness [of force] is an objective one.” 550 U.S. at 614. We look at the facts from the perspective of a reasonable officer at the time. Baird v. Renbarger, 576 F.3d 340, 344 (7th Cir. 2009). Unpleasant as the events undoubtedly were, we see nothing objectively unreasonable in what occurred. Although Archer was undoubtedly startled to wake up to armed police at her door with a battering ram in the yard, they never used that device, and they quickly holstered their guns. Apprehension that the police might do something falls short of a showing that they actually did use objectively abusive tactics. We take Archer at her word that the officers’ demeanor was rude and that they were disrespectful, but the Supreme Court has never held that the Fourth Amendment protects against those problems.

The presence of a news reporter outside her home during the search does not change things. Archer alleges no facts tending to show that any of the six defendants were the ones who leaked, or authorized the leak of, information about the search (or anything else about the investigation) to the media. And even if they did, we doubt that the Fourth Amendment protects against such behavior. That does not mean that abuses must go un-redressed: Wisconsin law provides a remedy for violations of a secrecy order of a John Doe proceeding, which is at the core of Archer’s complaint here. See Wis. Stat. § 968.26(4)(d).