Frein v. Pa. State Police

47 F.4th 247

Eugene Michael FREIN; Deborah Frein, Appellants

v.PENNSYLVANIA STATE POLICE; Pike County District Attorney's Office; Raymond Tonkin; John/Jane Doe I–V

No. 21-1830

United States Court of Appeals, Third Circuit.

Argued: March 23, 2022

Filed: August 30, 2022

Curt M. Parkins [ARGUED], Comerford Law, 538 Spruce Street, Suite 430, Scranton, PA 18503, Counsel for Appellants

Sean A. Kirkpatrick [ARGUED], Pennsylvania Attorney General's Office, Strawberry Square, 15th Floor, Harrisburg, PA 17120, Counsel for Pennsylvania State Police

David J. MacMain [ARGUED], MacMain Connell & Leinhauser, 433 West Market Street, Suite 200, West Chester, PA 19382, Counsel for District Attorney Pike County & Raymond J. Tonkin

Before: BIBAS, MATEY, and PHIPPS, Circuit Judges

OPINION OF THE COURT

BIBAS, Circuit Judge.

Although police may seize potential evidence using a warrant, they may not keep it forever. Yet they did that here. After a man assassinated a Pennsylvania State Trooper and injured another, troopers seized his parents ' guns. The government never used the guns as evidence. And eight years after the crime, once the son lost his last direct appeal, the officers still refused to return them—even though the officers do not claim that the parents or the guns were involved in the crime.

Because the parents were never compensated, they have a takings claim. And because they lawfully owned the guns, they have a Second Amendment claim too. But since they had a real chance to challenge the government's keeping the guns, they got procedural due process. So we will affirm in part, reverse in part, vacate in part, and remand.

I. BACKGROUND

Eric Matthew Frein is on death row for cold-blooded murder. In 2014, he ambushed two Pennsylvania State Troopers, killing one and injuring the other. For a while, he evaded capture. Police knew he had used a .308-caliber rifle. So they got a warrant to search the home that he shared with his parents and seize that type of rifle and ammunition.

When they executed the warrant, state police did not find a .308-caliber rifle. Instead, they found forty-six guns belonging to the parents: twenty-five rifles, nineteen pistols, and two shotguns. None was a .308. Even so, the officers got a second warrant and seized them all.

Eventually, the long arm of the law caught Frein. He was arrested, tried, convicted, and sentenced to death. His conviction was affirmed on direct appeal and certiorari was denied. But throughout that long process, the government never used the guns it had seized from the parents—not at trial, at sentencing, or on appeal. Plus, it never arrested or charged the parents and never alleged that any of their guns was involved in the crime. So the parents went to Pennsylvania state court and asked to get their guns back, raising Second Amendment, takings, due-process, excessive-fines, and state-law objections. In a one-sentence order, their motion was denied.

The parents now sue the state police, its officers, the Pike County District Attorney, and its prosecutors under 42 U.S.C. § 1983. The parents do not challenge the seizure under the Fourth Amendment. But they say that by keeping the guns after the criminal case ended, the government is violating two other parts of the Constitution: the Fifth Amendment's Takings Clause and the Second Amendment's right to "keep ... Arms." Plus, they argue that the state's procedure for letting them reclaim their property violated procedural due process.

In response, the officials concede that they never used the guns at trial or on appeal. They claim that they might need the guns as evidence if Frein's state habeas (technically, PCRA) or federal habeas petition yields a new trial, but can only speculate about how they might use them. And they stress that they seized the guns under a valid search warrant. The District Court agreed and dismissed their suit for failure to state a claim.

Now the parents appeal. We review de novo. Vorchheimer v. Phila. Owners Ass'n , 903 F.3d 100, 105 (3d Cir. 2018).

II. BY KEEPING THE PARENTS' GUNS AFTER THE CRIMINAL CASE ENDED, THE OFFICIALS TOOK THEIR PROPERTY FOR PUBLIC USE WITHOUT COMPENSATING THEM

Start with the Fifth Amendment claim. The parents correctly charge the government with taking their "private property ... for public use, without just compensation." U.S. Const. amend. V. They challenge not the searching officers' initial seizure under a warrant, but the state police's continued retention of the guns once the criminal case ended.

A. The parents have stated a takings claim

The Fifth Amendment's text supports the parents. After all, their guns are "private property." And they were "taken" by the officials. Plus, the parents have never gotten a dime, let alone "just compensation." Id.

Finally, the officials pressed the property into "public use." Id. The parents' property was seized by public officials (police) to help public prosecutors enforce state law at a public trial. So their claim checks all the Fifth Amendment boxes.

The officials counter that because the parents have tried to get their guns back in state court, they are collaterally estopped from using a takings claim to try again. Not so. The state court's order would preclude this takings claim only if the state court had decided an "identical" issue. Metro. Edison Co. v. Pa. Pub. Util. Comm'n , 767 F.3d 335, 351 (3d Cir. 2014). But that one-sentence order said nothing about takings or the government's need to keep the evidence for a possible retrial; it gave no reasoning at all. Nor could claim preclusion have barred this claim, even if the officials had raised it, because Rule 588 motions are the wrong vehicle for seeking just compensation for a taking. Compare Pa. R. Crim. P. 588 (authorizing only "the return of the property"), with Dep't of Transp. v. A & R Dev. Co. , 2020 WL 1130855, at *6 (Pa. Commw. Ct. Mar. 9, 2020) (explaining that Pennsylvania's "Eminent Domain Code ... is the exclusive remedy for a de facto taking").

Next, the government says Bennis v. Michigan forecloses this claim. Bennis held that the government need not compensate the owner when it has "lawfully acquired" property in reliance on its police powers, rather than "eminent domain." 516 U.S. 442, 452, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996). No one doubts that the government seized the guns under its literal police powers. And because it had a valid warrant, it says it lawfully acquired the guns too.

But Bennis applies only when the government gains title to the property. There, formal ownership of the property had been "transferred by virtue of [a forfeiture] proceeding from [the owner] to the State." Id. Here, by contrast, the government has never "lawfully acquired" title to the guns; they still belong to the parents. See Cedar Point Nursery v. Hassid , ––– U.S. ––––, 141 S. Ct. 2063, 2071, 210 L.Ed.2d 369 (2021) (confirming that a taking happens "when[ever] the government physically takes possession of property without acquiring title to it"). Plus, the guns are not forfeitable as contraband, instrumentalities, or proceeds of a crime. They are, at most, potential evidence, and police do not gain title to "mere evidence." Warden v. Hayden , 387 U.S. 294, 306 n.11, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). So Bennis is no obstacle to the parents' takings claim.

B. The warrant does not immunize officials who keep property this long

The officials have one last card to play: they seized the parents' property under a judicial warrant. See Warden , 387 U.S. at 301–02, 87 S.Ct. 1642 (letting police seize evidence under search warrants). The seizure, the parents agree, was valid. And warrants can shield officials from liability.

But not for this long. Though valid warrants immunize officers who stay within their scope, they are not blank checks. See Bruce v. Rawlins , 95 Eng. Rep. 934 (KB 1770) (letting officers be sued for trespass when a search under a writ of assistance turned up nothing); see also Thomas Y. Davies, Recovering the Original Fourth Amendment , 98 Mich. L. Rev. 547, 586–89 (1999) (noting that trespass liability for valid yet unsuccessful search warrants was "an aspect of common law ... well known at the time of the framing"). But cf. Fabio Arcila, Jr., The Death of Suspicion , 51 Wm. & Mary L. Rev. 1275, 1284 & nn.15–16 (2010) (noting a debate over how much immunity warrants and writs of assistance conferred). They are a limited exception to the rule against taking private property.

And that exception applies narrowly. At the Founding, warrants authorized taking property tied to a particular crime or wrong—hence the Fourth Amendment's requirement of probable cause. So warrants had to "particularly" identify the "things to be seized," and those "things" had to be tied to the crime for which there was probable cause. U.S. Const. amend. IV ; see Davies at 601, 651–52. And though officers could also take evidence not listed in the warrant, it still needed to be "material as evidence on the charge made against the prisoner. " Rex v. Barnett , 172 Eng. Rep. 563, 564 (CP 1829) (emphasis added); see also Crozier v. Cundey , 108 Eng. Rep. 439, 439 (KB 1827) (letting officers seize items not mentioned in the warrant only if those items were "likely to furnish evidence of the identity of the articles stolen and mentioned in the warrant"). If officers exceeded these limits, they would be liable. Thus, at the Founding, warrants immunized officers from trespass suits only for seizing evidence tied to a particular charge.

Because the point of seizing evidence is to use it in a criminal proceeding, the government may hang onto it through that proceeding. See, e.g. , Kensington Dist. N. Liberties, Pa., Act of Mar. 28, 1787, 2 Smith 401, § XII (letting the government keep seized gunpowder until a court decided whether it was lawfully possessed). And at the Founding, that proceeding would have ended by the time the conviction was final, not after the prisoner had exhausted collateral review....