Take That!

Does the Constitution's Takings Clause prevent the police from wrecking your home when they search for illegal drugs? New Jersey Superior Court Judge Michael Winkelstein has ruled that the costs of executing drug raids and other actions serving "public purposes" should not be imposed on innocent property owners.

On June 27, 1991, the Atlantic City police executed a no-knock search in an apartment owned by Henry Wallace. The police arrested the tenant and confiscated 69 bags of a white powder. At least one of the bags contained heroin. During the raid, the police knocked down three doors, costing Wallace about $900 in repairs. Wallace sued the city for restitution, claiming that the destruction of his property by the police during the search constituted a taking under both the state and federal constitutions.

Winkelstein agreed. The judge ruled that the search was conducted for a public purpose (confiscating drugs) and not for Wallace's personal benefit. Wallace also did not know his tenant kept drugs in the apartment. Thus, the damage done by the police constituted a taking and Wallace was entitled to compensation.

Scott Bullock, an attorney with the Washington, D.C.-based Institute for Justice, says this may be the first time the Takings Clause has been used to protect property owners from the consequences of a police raid. Since the police had a warrant, the Fourth Amendment's prohibition against warrantless searches did not apply. And although the ruling was made in a trial court, Bullock says, "the case could be persuasive to another judge and [in] another context."

If more broadly applied, Winkelstein's ruling could demonstrate that the costs of serving the "public good" must be paid by all taxpayers and not concentrated on property owners. And these costs should be more explicit. Winkelstein writes, "The decision of how much [public spending] to allocate for the destruction of property during the execution of search warrants is a question to be determined at budget time, not by the police officer on the street."