The Eighth Circuit Court of appeals handed down a shocking opinion today. In United States v. Santana-Aguirre, No. 07-3706 (8th Cir. August 12, 2008) (opinion), a 2-1 panel held that when you consent to a search, you also consent to the destruction of your property.
In Santana-Aguirre, a police officer obtained consent to search a passenger's bag.
While searching the bag, the officer saw two larges candles. The candles appeared to be low quality. Without obtaining the passenger's consent, and without obtaining a warrant, the officer destroyed the candles with his knife.
Under earlier Eighth Circuit precedent, the candle's destruction may have been constitutional. In United States v. Alverez, 235 F.3d 1086 (8th Cir. 2000), a three-judge panel held that, under automobile exception to the Fourth Amendment, destruction of spare tire was reasonable when police had probable cause to believe that that tire contained drugs.
While the Alverez rule is bad enough, the application of the rule is doubly-bad here. The split panel held that these facts constituted probable cause:
The candles looked standard and inexpensive, but stood out to him because it would be easier for someone to buy identical candles at his destination rather than transport them. [The officer] then noticed that 'the layering of the candle was inconsistent'—'[t]here were bumps separating the different layers of the candle.' The original packaging had been removed, torn, and then re-taped. There were also holes around the candlewick.
Slip op. at 3. In other words, these were your typical crappy candles that poor people buy. There is nothing suspicious about a poorly-constructed candle. Go into a Dollar General store, and you'll see that every large candle is poorly constructed. A candle looking like it should look should not create probable cause.
That said, even being in the Alverez framework is disturbing. We should question Alverez's premise.
The Fourth Amendment requires searches to be reasonable. Is it really reasonable to allow police to destroy your property without first obtaining a warrant or your consent? In Alverez and Santana-Aguirre, no neutral and detached magistrate issued a warrant. Rather, officers made an on-the-spot determination that the property contained contraband.
In a free society, should our property be valued so little that an officer who believes that it might contain drugs may destroy it?
What if the property had been a lap top, a digital camera, or a set of family pictures? It's easy not to care about Santana-Aguirre. Who cares about a cheap candle?
An appellate court must not forget that today's candle is tomorrow's lap top: Police will use Santana-Aguirre to justify the destruction of valuable property.
I have a controversial idea. Before officers may destroy property, they must get consent or a warrant. Alverez was wrongly decided in 2000. Santana-Aguirre was wrongly decided today.