246
Thomas, J., concurring in judgment
Justice Thomas, with whom Justice Scalia joins, concurring in the judgment.
I agree with the holding of the majority's opinion, ante, at 240, that the Due Process Clause does not compel the city to provide respondents with detailed notice of state-law post-deprivation remedies. I write separately, however, because I cannot endorse the suggestion, in dicta, that "when law enforcement agents seize property pursuant to warrant, due process requires them to take reasonable steps to give notice that the property has been taken so the owner can pursue available remedies for its return." Ibid. In my view, the majority's conclusion represents an unwarranted extension of procedural due process principles developed in civil cases into an area of law that has heretofore been governed exclusively by the Fourth Amendment.
As far as I am aware, we have never before suggested that procedural due process governs the execution of a criminal search warrant. Indeed, we have assumed that "[t]he Fourth Amendment was tailored explicitly for the criminal justice system, and its balance between individual and public interests always has been thought to define the 'process that is due' for seizures of person or property in criminal cases . . . ." Gerstein v. Pugh, 420 U. S. 103, 125, n. 27 (1975). In my view, if the Constitution imposes a "notice" requirement on officers executing a search warrant, it does so because the failure to provide such notice renders an otherwise-lawful search "unreasonable" under the Fourth Amendment.1
1 Although we have never addressed the issue, there is near unanimous agreement among the lower courts that the notice requirements imposed by Federal Rule of Criminal Procedure 41(d) and the state statutes cited in the Appendix to the majority's opinion, ante, at 244-245, are not required by the Fourth Amendment. See W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.12 (3d ed. 1996).
Page: Index Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 NextLast modified: October 4, 2007