Only 9th Circuit Sympathy in Case of Missing Cop Seizure

FRESNO, Calif. (CN) – A September 2013 police raid on Micah Jessop and Brittan Ashjian, two Fresno businessmen suspected of running an illegal gambling ring, netted hundreds of thousands of dollars in cash and rare coins that were seized as evidence. Their names were cleared, but most of that money mysteriously disappeared – and Jessop and Ashjian never saw their property again.

Sympathizing with the two businessmen who say Fresno police officers illegally plundered their home and businesses, three Ninth Circuit judges said Wednesday they nonetheless cannot find the officers violated their constitutional rights.

The panel ruled there is no law that says theft of property seized pursuant to a valid warrant counts as an unreasonable seizure under the Fourth Amendment or a violation of due process rights under the Fourteen Amendment.

“We sympathize with appellants. They allege the theft of their personal property by police officers sworn to uphold the law. Appellants may very well have other means through which they may seek relief. But not all conduct that is improper or morally wrong violates the Constitution,” U.S. Circuit Judge Milan Smith wrote on behalf of the panel, which held that officers Curt Chastain and Tomas Cantu, and former vice detective Derik Kumagai are protected by qualified immunity.

According to their 2015 lawsuit against the officers and the City of Fresno, Jessop and Ashjian claimed that during the search led by Kumagai, Fresno police officers seized roughly $131,000 from their ATM business, an additional $20,000 in cash and $125,000 worth of rare coins from Jessop’s home. 

When the men and their counsel went to the Fresno Police Department the next day, only $50,000 in currency had been submitted as evidence, the businessmen said in their complaint.

Jessop and Ashjian were never charged with any crimes. Meanwhile, Kumagai was sentenced to two years in federal prison in 2015 for taking a $20,000 bribe from a suspected drug dealer.

Their attorney Kevin Little was unavailable for an interview, but said, “Today, the Ninth Circuit found that theft during the execution of a search warrant was not a Fourth Amendment violation, or at least not an obvious one that would overcome qualified immunity. The opinion does not mention that my clients were owners of an ATM business and could prove the amount of loss almost to the penny based on their business records, or that one of the officers, Kumagai, was a convicted federal felon by the time of this case.”

In August 2017, U.S. District Judge Dale Drozd ruled the officers had been acting on a valid search warrant, and even if they did steal some of the money, it’s unclear whether the Constitution “protects against the subsequent theft of lawfully seized items.” 

Drozd noted in his ruling that the Ninth Circuit has provided “no direct guidance” on the issue while “the circuit courts that have addressed this issue appear to be divided.”

The Ninth Circuit had little to offer Jessop and Ashjian, however, beyond sympathy. 

“Although the city officers ought to have recognized that the alleged theft of appellants’ money and rare coins would be improper, they did not have clear notice that it violated the Fourth Amendment,” Milan wrote, adding this isn’t one of the rare cases where the constitutional right at issue is defined so obviously that the officers must be found liable, regardless of the lack of a controlling case. 

“The allegation of any theft by police officers – most certainly the theft of over $225,000 – is undoubtedly deeply disturbing,” Milan wrote. “Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, is not obvious. The split in authority on the issue leads us to conclude so.”

Little said he firmly disagrees that theft under the guise of a search warrant is not an obvious Fourth Amendment violation.

“Indeed, the principal motivation for the Fourth Amendment was to prevent the continuation of the practice of rummaging through homes pursuant to writs of assistance,” he said in an email. 

Little pointed to Payton v. New York, a U.S. Supreme Court case where Justice Paul Stevens wrote, “It is familiar history that indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that motivated the framing and adoption of the Fourth Amendment.”

The panel said Jessop and Ashjian are free to go after the officers some other way. Little said his clients are considering an appeal.

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