Crysteal Davis v. Trevor Spear

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 21-2419

___________________________

Crysteal Davis; Damon Davis; Iisha Hillmon

Plaintiffs - Appellees

v.

Jeffrey Dawson; Brad Youngblut; Josh Rhamy

Defendants

Trevor Spear; Ryan Neumann; Lucas Kramer

Defendants - Appellants

Ross Klein; Patrick Hickey

Defendants

Robert Clock

Defendant - Appellant

Dana Wingert; City of Des Moines, Iowa; Steven McCarville

Defendants

____________

Appeal from United States District Court

for the Southern District of Iowa - Central

____________

Submitted: January 13, 2022

Filed: May 10, 2022

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Before BENTON, SHEPHERD, and STRAS, Circuit Judges.

____________

BENTON, Circuit Judge.

Des Moines Police officers, lacking probable cause, took relatives of a

stabbing victim to the station, holding them for over three hours despite their

repeated requests to leave. Meanwhile, the victim died. The family sued. The

district court1 denied qualified immunity, ruling for the family on their claims of

illegal seizure and false arrest. The officers appeal. Having jurisdiction under 28

U.S.C. § 1291, this court affirms.

I.

On August 5, 2017, Shawn E. Davis stabbed Preston Davis outside a gathering

at his home. Several people—including Crysteal Davis (the victim’s wife), Damon

Davis (his brother), and Iisha Hillmon (his cousin)—witnessed the stabbing. Police

secured the scene, taking Shawn into custody. Paramedics took the victim to the

hospital.

Des Moines Police Department officers Trevor Spear, Ryan Neumann, and

Lucas Kramer responded to the scene. Captain Robert Clock was the Watch

Commander in charge of the officers. All the witnesses, including the family, told

the officers that Shawn stabbed the victim, and they wanted to go to the hospital.

1

Honorable James E. Gritzner, United States District Judge for the Southern

District of Iowa.

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Crysteal and Damon tried to leave in their cars but the officers stopped them.

At least three officers told the family they would take them to the hospital. They got

in two patrol cars. Instead, the officers took them to the police station, where they

waited more than three hours to be interviewed. Throughout the car ride and during

their wait at the station, the family members demanded to go to the hospital.

In the patrol car, after being told they were going to the station to be

interviewed instead of to the hospital, Crysteal repeatedly insisted that they needed

to go to the hospital: “We have to go to the hospital, first . . . . If we’re not going to

the hospital right now, I’m having my dad call a lawyer, because my husband is in

critical condition. We can do that at the hospital . . . . I would have never gotten in

this car had I known they were taking me for questioning.”

At the station Crysteal asked: “Are we like literally for real held captive? If

we tried to walk out, would we be arrested?” An officer responded: “You guys are

not free to leave. The detectives want to talk to you.” Damon repeatedly asked if

Crysteal could go see her husband. But the family members were detained for over

three hours while Preston died.

Crysteal Davis, Damon Davis, and Iisha Hillmon sued Officers Trevor Spear,

Ryan Neumann, Lucas Kramer, and Captain Robert Clock (and others not party to

this appeal) for unreasonable seizure in violation of their civil rights under 42 U.S.C.

§ 1983, the related state constitutional claim under article I, section 8 of the Iowa

Constitution, and common law false arrest.

The district court denied summary judgment based on qualified immunity.2

The district court also entered judgment for the family members on their claims of

illegal seizure and false arrest by Spear, Neumann, and Kramer.

2

The district court denied qualified immunity to Clock based on a question of

fact over whether he had a direct role.

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This court has interlocutory jurisdiction over the denial of qualified immunity

under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). This

court reviews de novo the denial of qualified immunity. Gladden v. Richbourg, 759

F.3d 960, 964 (8th Cir. 2014).

II.

Officers are “entitled to qualified immunity unless (1) the evidence, viewed

in the light most favorable to [the plaintiffs], establishes a violation of a

constitutional or statutory right, and (2) the right was clearly established at the time

of the violation, such that a reasonable official would have known that his actions

were unlawful.” Blazek v. City of Iowa City, 761 F.3d 920, 922-23 (8th Cir. 2014),

citing Pearson v. Callahan, 555 U.S. 223, 232 (2009). A clearly established right

is one that is “sufficiently clear ‘that every reasonable official would have

understood that what he is doing violates that right.’” Reichle v. Howards, 566 U.S.

658, 664 (2012) (cleaned up), quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

For a right to be clearly established, “existing precedent must have placed the

statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.

First, this court considers whether the officers violated the family members’

constitutional rights. To establish a violation of the Fourth Amendment, “the

claimant must demonstrate a seizure occurred and the seizure was unreasonable.”

Quraishi v. St. Charles County, 986 F.3d 831, 839 (8th Cir. 2021).

“[A] person has been ‘seized’ within the meaning of the Fourth Amendment

only if, in view of all the circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave.” United States v. Mendenhall,

446 U.S. 544, 554 (1980). Officer Kramer told Crysteal and Damon they were going

to the station, not the hospital, after they were in the “cage” in the back of the moving

patrol car. Crysteal and Damon immediately and repeatedly objected to the changed

plans. They asked to be taken to the hospital. As Officer Neumann escorted Iisha

to the patrol car, he stated: “alright, we’re going to the hospital, is that correct?”

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Once she and the other passengers were seated in the car, he announced the change

of plans: “I’m telling you where we’re going, we’re going to the station.” “I know

you don’t wanna . . . that’s where we’re going.” When Crysteal asked at the station

if they were being “held captive,” the officer responded: “you guys are not free to

leave.” The family members could reasonably assume they were not free to leave.

Unlike the witness in Lincoln, cited by the officers, the witnesses here clearly

did not consent to being taken to the police station for questioning. See Lincoln v.

Scott, 887 F.3d 190, 198 n.5 (5th Cir. 2018) (affirming the grant of qualified

immunity on second appeal because officers reasonably believed witness had

consented to being detained and interviewed). Here, the family members repeatedly

asked to be taken to the hospital. They expressly told Spear they could be

interviewed at the hospital or at a later time. They provided contact information to

the officers at the scene so they could be reached for an interview later. Crysteal

informed the officers unambiguously: “I would have never gotten in this car had I

known they were taking me for questioning.” The officers seized the family

members without consent.

The question is then whether the seizure was reasonable. The Supreme Court

in Dunaway v. New York said that with a few narrow exceptions “centuries of

precedent” support “the principle that seizures are ‘reasonable’ only if supported by

probable cause.” Dunaway v. New York, 442 U.S. 200, 214 (1979).

The officers argue that their seizure of the family should be examined as a

Terry stop. See Terry v. Ohio, 392 U.S. 1, 21 (1968). Terry provides one narrow

exception to the probable cause requirement of the Fourth Amendment. See

Dunaway, 442 U.S. at 208-14. But “[a]n action tantamount to arrest has taken place

if the officers’ conduct is more intrusive than necessary for an investigative stop.”

United States v. Rose, 731 F.2d 1337, 1342 (8th Cir. 1984), citing Florida v. Royer,

460 U.S. 491, 504-05 (1983). The Supreme Court has not extended Terry to

custodial interrogations: “The officer may question the driver and passengers about

their citizenship and immigration status, and he may ask them to explain suspicious

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circumstances, but any further detention or search must be based on consent or

probable cause.” United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975).

Analyzing a seizure, this court “must undertake a qualified immunity analysis

not just with respect to the fact of detention, but with respect to its quality and

duration as well.” Seymour v. City of Des Moines, 519 F.3d 790, 799-800 (8th Cir.

2008). In Seymour, Des Moines police detained a father, preventing him from going

to the hospital for about 45 minutes after his unresponsive child was hospitalized.

Id. at 795. This court determined the detention violated the father’s constitutional

right to be free from unreasonable seizures, because there was not reasonable

suspicion he had committed a crime (but granted the officers qualified immunity on

mistake-of-law grounds). Id. at 798. Here, all witnesses told the officers that Shawn

Davis was the perpetrator; they had him in custody. Indeed, the officers admit there

was no probable cause to believe the witnesses had committed a crime

(acknowledging that “Appellees were being interviewed as solely witnesses to a

homicide” and “never suspects.”).

Here, there was no minimally-intrusive Terry stop. Both the duration and the

nature of this seizure exceed the bounds of the Constitution. Cf. Illinois v. Lidster,

540 U.S. 419, 427 (2004) (finding constitutional a traffic checkpoint seeking

information about a week-old, hit-and-run accident because motorists had to wait “a

very few minutes at most” and “[c]ontact with the police lasted only a few seconds”).

As this court determined in Seymour, even a 45-minute detention can be too long.

Seymour, 519 F.3d at 795. These family members were taken to the station and

detained for over three hours. This detention was a most intrusive means of

questioning survivors after a violent crime: the officers transported the family to the

police station, separated them, took away Iisha’s phone, and expressly prevented her

from telling Crysteal that her husband had died. Dunaway controls the intrusive

seizure here.

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Second, this court considers whether the constitutional right violated was

clearly established. It is a “settled principle that while the police have the right to

request citizens to answer voluntarily questions concerning unsolved crimes they

have no right to compel them to answer.” Davis v. Mississippi, 394 U.S. 721, 727

n.6 (1969). The Court in Dunaway held that “police violated the Fourth and

Fourteenth Amendments when, without probable cause, they seized petitioner and

transported him to the police station for interrogation.” Dunaway, 442 U.S. at 216.

The Court reasoned that “any ‘exception’ that could cover a seizure as intrusive as

that in this case would threaten to swallow the general rule that Fourth Amendment

seizures are ‘reasonable’ only if based on probable cause.” Id. at 213. See also

Royer, 460 U.S. at 500 (“[A]n investigative detention must be temporary and last no

longer than is necessary to effectuate the purpose of the stop. Similarly, the

investigative methods employed should be the least intrusive means reasonably

available to verify or dispel the officer’s suspicion in a short period of time.”). See

generally Henry v. United States, 361 U.S. 98, 100-01 (1959) (describing how

rebellion against oppressive “general warrants” and “writs of assistance” motivated

the Fourth Amendment’s probable cause requirement, which “has roots that are deep

in our history.”).

Officers of the Des Moines Police Department, in particular, were on notice

that they could not detain someone for questioning against their will, even in a

homicide investigation, absent probable cause. This court determined in Seymour

that officers from that department violated a father’s rights when they detained him

without probable cause while investigating his young son’s sudden hospitalization

and death. See Seymour, 519 F.3d at 797-98.

The officers cite a district court case with similar facts to support that the law

is not clearly defined. See Magnan v. Doe, 2012 WL 5247325, at *5 (D. Minn.

2012). In that case, the officers detained family members of an attempted-homicide

victim at the crime scene despite their protestations that they needed to go to the

hospital to be with him. Id. at *4. The district court, however, found that based on

the circumstances the officers formed a reasonable suspicion that the family

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members “were somehow involved with the homicides.” Id. Here, by contrast, the

officers denied having any such reasonable suspicion that the family was involved

in the homicide. Further, the district court in Magnan denied qualified immunity as

to the duration and conditions of detention once the scene was secure because it was

not clear that detention in the squad cars was the “least intrusive means available.”

Id. at *8.

There is also a robust consensus that seizing witnesses to a crime in similar

circumstances is a clearly established constitutional violation. See, e.g., Lincoln,

887 F.3d at 198 n.5 (5th Cir. 2018) (reiterating that the right not to be seized and

transported for interrogation is “clearly established” by Davis v. Mississippi and

Dunaway, but distinguishing where plaintiff apparently consented to detention);

Maxwell v. County of San Diego, 708 F.3d 1075, 1083 (9th Cir. 2013) (holding

“officers were on notice that they could not detain, separate, and interrogate the

[plaintiffs] for hours” just because they witnessed a shooting); Bletz v. Gribble, 641

F.3d 743, 756 (6th Cir. 2011) (holding “[l]aw enforcement officers were fairly on

notice regarding the constitutional violations inherent in subjecting an innocent

bystander to a detention that was excessive both in duration and in the manner it was

carried out”); State v. McCoy, 692 N.W.2d 6, 19-20 (Iowa 2005) (holding

defendant’s counsel ineffective for not raising a “Dunaway violation” for illegal

seizure when “police simply took the defendant to the station for investigative

purposes, knowing full well they had no legal reason to detain him.”). Cf. Walker

v. City of Orem, 451 F.3d 1139, 1147 (10th Cir. 2006) (seizing and interrogating

witnesses to a police shooting at the scene violated the Fourth Amendment, but prior

to Lidster when the shooting occurred, it was not clearly established).

III.

The officers claim that the district court should have granted “all-due-care

immunity” on the state law claims against Spear, Neumann, and Kramer. “All-due-

care immunity is a constitutional immunity that bars suit and damages only for

constitutional claims and only when the government official proves ‘that he or she

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exercised all due care to conform with the requirements of the law.’” Venckus v.

City of Iowa City, 930 N.W.2d 792, 802 (Iowa 2019), quoting Baldwin v. City of

Estherville, 915 N.W.2d 259, 260-61 (Iowa 2018) (“Baldwin I”). Lack of due care

is equivalent to negligence. Baldwin I, 915 N.W.2d at 280.

Iowa courts “generally ‘interpret the scope and purpose of the Iowa

Constitution's search and seizure provisions to track with federal interpretations of

the Fourth Amendment’ because of their nearly identical language”—while

reserving the right to apply the framework differently. State v. Brown, 930 N.W.2d

840, 847 (Iowa 2019), quoting State v. Christopher, 757 N.W.2d 247, 249 (Iowa

2008). The Iowa Supreme Court has endorsed the probable cause requirement for

investigative detention, finding “no basis to distinguish the protections afforded by

the Iowa Constitution from those afforded by the federal constitution.” McCoy, 692

N.W.2d at 15.

The same evidence establishing the officers’ violation of § 1983 and the

Fourth Amendment establishes a violation of the Iowa Constitution. The officers

seized the family against their will and without probable cause. There was no

mistake of law here nor “reasonable ground” for the officers’ action. See Baldwin

v. Estherville, 333 F.Supp.3d 817, 846 (N.D. Iowa 2018). In their motion for

summary judgment, the officers assert only that “there is no evidence of a lack of

due care to existing precedent.” They do not show any attempt to conform with the

law. All due care is an affirmative defense, and the officers do not carry their burden

of showing due care to be entitled to the defense.

IV.

This court reviews an entry of judgment de novo. United States ex rel. Glass

v. Medtronic, Inc., 957 F.2d 605, 607 (8th Cir. 1992).

The district court granted partial summary judgment to the family on their

common-law false arrest or false imprisonment claim. The family argues that this

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court does not have jurisdiction over the claim because a grant of partial summary

judgment on liability is not a final judgment. See Liberty Mut. Ins. Co. v. Wetzel,

424 U.S. 737, 743-44 (1976). Generally, this court will only decide state law claims

on interlocutory appeal if those claims are “inextricably intertwined with

interlocutory appeals concerning the defense of qualified immunity.” Veneklase

v. City of Fargo, 78 F.3d 1264, 1269 (8th Cir. 1996). Where a claim is not

“inextricably intertwined,” this court only “review[s] state law claims on

interlocutory appeal to determine if the district court properly denied a state entity

or its agent immunity from suit.” Dillard v. O'Kelley, 961 F.3d 1048, 1055 (8th Cir.

2020) (en banc), cert. denied, 141 S. Ct. 1071 (2021).

“An issue is ‘inextricably intertwined’ with properly presented issues only

when the appellate resolution of the collateral appeal necessarily resolves the

pendent claims as well.” Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005,

1012 (8th Cir. 2003).

False arrest and false imprisonment are legally indistinguishable. Kraft v. City

of Bettendorf, 359 N.W.2d 466, 469 (Iowa 1984). Under Iowa law, a false arrest

claim “has two elements: ‘(1) detention or restraint against one’s will, and (2)

unlawfulness of the detention or restraint.’” Thomas v. Marion County, 652

N.W.2d 183, 186 (Iowa 2002), quoting Kraft, 359 N.W.2d at 469. As discussed, the

detention of the family here was unlawful.

In a civil suit for false arrest, “[i]f the officer acts in good faith and with

reasonable belief that a crime has been committed and the person arrested committed

it, his actions are justified and liability does not attach.” Children v. Burton, 331

N.W.2d 673, 680 (Iowa 1983). As discussed, the officers had no reasonable belief

that the family committed a crime.

The officers took the family to the police station, where they did not agree to

go, when they clearly wanted to go to the hospital. Officers then expressly

prohibited them from leaving the station. The family members were unlawfully

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detained against their will, and the resolution of the qualified immunity claims

necessarily resolves the common-law false arrest claim as well.

*******

The order denying qualified immunity is affirmed, the partial summary

judgment is affirmed, and the case remanded for further proceedings consistent with

this opinion.

STRAS, Circuit Judge, concurring.

Rarely do rights come more clearly established. The Des Moines Police

Department apparently thinks it is constitutional to seize, transport, and interrogate

innocent witnesses based on “societal needs.” Appellants’ Br. 30. This type of

“forcible and compulsory extortion of a [person’s] own testimony”—frequently a

feature of writs of assistance and general warrants—was repudiated by the Fourth

Amendment. Boyd v. United States, 116 U.S. 616, 630 (1886); see also Entick v.

Carrington, 19 How. St. Tr. 1029 (C.P. 1765). Like the court, I would reject the call

to revive them, and I write separately to explain just how clearly established this

right really is. See U.S. Const. amend. IV.

I.

“Government is instituted to protect property of every sort[,] as well that

which lies in the various rights of individuals.” James Madison, Property, Nat’l

Gazette (Mar. 29, 1792); see also Alexander Hamilton, Americanus No. II (Feb. 7,

1794) (explaining that all “adequate” governments were “institut[ed]” for “the

protection of persons and property”); Anti-Federalist No. 11 (Winthrop) (observing

that “[c]ivil liberty consists in the consciousness of th[e] security” of one’s “person[]

and property”); Letter from James Otis, Samuel Adams, Thomas Cushing, and

Thomas Gray to Dennys de Berdt (Dec. 20, 1765), in 1 The Writings Of Samuel

Adams 61, 65 (Harry A. Cushing ed., 1904) (“The primary, absolute, natural Rights

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of Englishmen . . . are Personal Security, Personal Liberty[,] and Private Property”

and the “Colonists are intitled” to these rights “by [their] Charters, by Common

Law[,] and by Acts of Parliament.”). This basic principle, universally recognized at

the time of the Founding, is why “‘general warrants’ and ‘writs of assistance’” were

so “reviled.” See Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018) (quoting

Riley v. California, 573 U.S. 373, 403 (2014)); see also Forrest McDonald, Novus

Ordo Seclorum: The Intellectual Origins of the Constitution 1 (1985) (“Patriots were

agreed that the proper ends of government were to protect people in their lives,

liberty, and property and that these ends could best be obtained through a republican

form.”).

They were the historical equivalent of a “blank check.” Starting out as a way

of enforcing English smuggling laws, they initially allowed so-called “customs men”

to search homes for stolen or smuggled imports. See Carpenter, 138 S. Ct. at

2239 n.6 (Thomas, J., dissenting) (observing that “‘[w]rits of assistance’ were

‘general warrants’ that gave customs officials blanket authority to search where they

pleased for goods imported in violation of the British tax laws” (quotation marks

omitted)); see also M.H. Smith, The Writs Of Assistance Case 17–19 (1978)

(describing the origins of the writ of assistance). But they soon expanded to other

situations and conferred breathtaking powers on the government officials who held

them. Among their features were the authority to conduct indiscriminate searches

of people and property, and in certain cases, conscript individuals to “‘aid[] and

assist[]’ the Sheriff.” Smith, supra, at 95 n.1 (quoting Commissions Issued by the

Province of Pennsylvania 36 (W.H. Egle ed., 1896) (describing a “writ of assistance”

that was common in colonial Pennsylvania)); see also James Otis, Against Writs of

Assistance (Feb. 24, 1761) (observing that “a person with this writ . . . may enter all

houses, shops, etc., at will, and command all to assist him”). They were premised

on the notion that the Crown’s interests stood above all others. See Smith, supra, at

426 (“[A]ll his Majesty’s good Subjects are required to be aiding and assisting in the

due Execution of said Writ or Warrant of Assistance.” (citation omitted)).

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The colonists resolved to stop these “unrestrained” practices. Carpenter, 138

S. Ct. at 2213 (quoting Riley, 573 U.S. at 403); see also Va. Declaration of Rights

of 1776, art. X (observing “[t]hat general warrants” permitted “an officer or

messenger . . . to search suspected places without evidence of a fact committed, or

to seize any person . . . whose offence is not particularly described and supported by

evidence”). In the years immediately preceding the Revolution, writs of assistance

and general warrants were viewed as “instrument[s] of arbitrary power” that

“destr[oyed] . . . English liberty.” Boyd, 116 U.S. at 624–25 (citation omitted);

Letter from John Adams to William Tudor (Mar. 29, 1817), in 10 The Works of John

Adams 247–48 (Charles Francis Adams ed., 1856) (observing that “a crowded

Audience” that was protesting the writs “appeared to me to go away, as I did, ready

to take up arms against writs of assistance”); see also Otis, supra. Not to mention

they made colonists “less secure,” Smith, supra, at 562–63 (emphasis omitted), by

“plac[ing] the liberty of every man in the hands of every petty officer,” Boyd, 116

U.S. at 625 (quotation marks omitted); see also Otis, supra (stressing that “[e]very

one with this writ may be a tyrant; if this commission be legal, a tyrant in a legal

manner, also, may control, imprison, or murder any one within the realm”); Smith,

supra, at 28 (“[T]here was a risk that an ostensibly lawful entry might in fact be a

ruse for a burglary.”). It is unsurprising that opposition to them became one of the

organizing principles of the Revolution. See 6 Encyclopaedia of the Laws of

England, General Warrant, 63 (A. Renton ed., 1898) (“The use of the writ of

assistance was one of the causes of the revolt of the American colonies.”).

II.

Meanwhile, across the Atlantic, English courts issued a series of decisions that

only sharpened colonial opposition. There were a number that had an impact, see,

e.g., Wilkes v. Wood, 19 How. St. Tr. 1153 (C.P. 1763); Huckle v. Money, 95 Eng.

Rep. 768 (K.B. 1763); Leach v. Money, 19 How. St. Tr. 1001 (K.B. 1765), but

perhaps none more so than Lord Camden’s opinion in Entick v. Carrington, 19 How.

St. Tr. 1029 (C.P. 1765). See Boyd, 116 U.S. at 626 (noting that the Founders

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considered Lord Camden’s opinion in Entick to be “the true and ultimate expression

of constitutional law”).

A.

The warrant in Entick “act[ed] against every man, who [was] so described in

the warrant, [even] though he be innocent.” 19 How. St. Tr. at 1064 (emphasis

added). The officers, who broke into Entick’s home and seized his papers, defended

their actions by arguing that this warrant, and others like them, were critical for

“detecting offenders [and] discovering evidence.” Id. at 1030, 1073.

This argument, echoed today by the Des Moines Police Department, was no

more successful then. Lord Camden pointed out that general warrants arose “from

a decree of the Star-Chamber,” giving them less-than-noble origins, and then “crept

into the law by imperceptible practice.” Id. at 1067, 1069. No “authority in [the]

book[s],” including the “written law,” supported them. Id. at 1066, 1072. Nor could

“such a power be justified by the common law.” Id. at 1072. The warrant was, in

Lord Camden’s words, “illegal and void,” and Entick had an action for trespass

against the officers, who had invaded his right to be “secure [in his] property.” Id.

at 1066, 1074.

Entick was “welcomed and applauded by the lovers of liberty in the colonies.”

Boyd, 116 U.S. at 626 (chronicling its support). Many regarded Lord Camden’s

decision “as one of the permanent monuments of the British constitution.” Id.

B.

A Massachusetts case elicited a similar reaction. See Paxton’s Case (Mass.

1761), in Josiah Quincy, Jr., Reports of Cases Argued and Adjudged in the Superior

Court of Judicature of the Province of Massachusetts Bay, Between 1761 and 1772

480 (Little, Brown, & Co. 1865). In what later became known as Paxton’s Case, a

customs man applied to the Massachusetts Superior Court for a writ of assistance.

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Id. at 479–480. Although there was never a formal decision, id. at 482, an oral

pronouncement by Chief Justice Hutchinson questioned the “foundation for such a

writ,” 10 The Works of John Adams, supra, at 248, after attorney James Otis had

challenged its legality, see Quincey, supra, at 471, 474 (chronicling the argument by

James Otis that “[t]his Writ is against the fundamental Principles of Law” and “if an

Act of Parliament should be made, in the very words of this Petition, it would be

void”). According to John Adams, “Otis was a flame of fire” that spurred “the first

scene[s] of the first act of opposition to the arbitrary claims of Great Britain,” 10 The

Works of John Adams, supra, at 247, that eventually “produced the American

Revolution,” Letter from John Adams to William Tudor (Dec. 18, 1816), in 10 The

Works of John Adams, supra, at 233. See 10 The Works of John Adams, supra, at

248 (observing that “the child Independence was born” during James Otis’s famous

speech denouncing writs of assistance); see also Davis v. United States, 328 U.S.

582, 604 (1946) (Frankfurter, J., dissenting) (citing Paxton’s Case).

A little more than a decade after Entick and Paxton’s Case, the colonies

“thr[e]w off the yoke of Parliament,” “declare[d] general warrants unconstitutional

in express terms,” and “put an end . . . to general Writs of Assistance.” Quincey,

supra, at 540; see also 10 The Works of John Adams, supra, at 248 (observing that

“fifteen years” after Paxton’s Case, “the child Independence . . . grew up to

manhood, and declared himself free”). In 1776, for example, Virginia ratified its

Declaration of Rights, which stated that

general warrants, whereby any officer or messenger may be

commanded to search suspected places without evidence of a fact

committed, or to seize any person or persons not named, or whose

offence is not particularly described and supported by evidence, are

grievous and oppressive, and ought not to be granted.

Va. Declaration of Rights of 1776, art. X. North Carolina, Maryland, Pennsylvania,

and Massachusetts soon joined by passing similar provisions. See N.C. Const. of

1776, Declaration of Rights, art. XI (1776) (“That general warrants whereby an

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Officer or Messenger may be commanded . . . to seize any person or persons not

named whose offences are not particularly described and supported by evidence are

dangerous to liberty and ought not to be granted.”); Md. Const. of 1776, art. XXIII

(“[A]ll general warrants—to search suspected places, or to apprehend suspected

persons, without naming or describing the place, or the person in special—are

illegal, and ought not to be granted.”); Pa. Const. of 1776, Declaration of Rights,

art. X (similar); Mass. Const. of 1780, pt. I, art. XIV (similar). In fact, ever since

the break from Britain, “the protection against [unreasonable] governmental search

and seizure” has been considered “[s]o basic to liberty” that “every State in the

Union” has adopted “a constitutional safeguard” of this kind. See Davis, 328 U.S.

at 604 (Frankfurter, J., dissenting).

III.

The Framers eventually incorporated these state-level changes into the Fourth

Amendment. U.S. Const. amend. IV. In the two centuries since, the Supreme Court

has consistently recognized that Founding-Era “hostility” to general warrants and

writs of assistance—paired with the “heralded [Entick] decision”—“inspired the

Revolution and became ‘the driving force behind the adoption of the Fourth

Amendment.’” Carpenter, 138 S. Ct. at 2239 (Thomas J., dissenting) (brackets

omitted) (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 266 (1990)).

These principles have stuck. In one nineteenth century case, for example, the

Supreme Court relied on “the language of Lord Camden” and described Entick as

“expressing the true doctrine on the subject of searches and seizures.” Boyd, 116

U.S. at 630. Nearly a century later, the Court announced that it was “settled” that

“the police . . . have no right to compel [citizens] to answer” questions about

“unsolved crimes,” Davis v. Mississippi, 394 U.S. 721, 727 n.6 (1969), and that

“[n]othing is more clear” than the fact that “the Fourth Amendment was meant to

prevent wholesale intrusions upon the personal security of our citizenry, whether

these intrusions be termed ‘arrests’ or ‘investigatory detentions,’” Dunaway v. New

York, 442 U.S. 200, 214–15 (1979) (quoting Davis, 394 U.S. at 726–27). And then,

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roughly thirty years after Dunaway, we put those principles into practice by holding

that a “detention violat[ed] [the] constitutional right to be free from unreasonable

seizures,” even though police tried to “justify” it “in terms of the state’s interest in

investigating a possible crime.” Seymour v. City of Des Moines, 519 F.3d 790, 796,

798 (8th Cir. 2008).

***

Some things never change. We once again reject the argument that

investigatory need justifies suspicionless seizures. No Fourth Amendment principle

is more clearly established.

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