Schanzle v. Haberman, et al

United States Court of Appeals
for the Fifth Circuit

No. 19-51073
Summary Calendar

David Evan Schanzle,

Plaintiff—Appellant,

versus

Susana Haberman; Jonathan P. Gebhart; Michael
Galdo; Brad Barber; Laurel Vant; Jeff Neff; Mark Lane,
U.S. Magistrate Judge; 6 to 8 Unknown Government Agents,

Defendants—Appellees.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:18-CV-933

Before King, Graves, and Willett, Circuit Judges.
Per Curiam:*

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
October 7, 2020

Lyle W. Cayce
Clerk
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Plaintiff David Schanzle alleges that on October 24, 2018, federal
agents searched his property and seized: “every private personal and
business record, driver license, credit cards, bank records, check books and
checking records, voting registration card, property tax statements”; “a cell
phone”; “his life savings,” “between $2 and $3 million dollars in assets,”
including “gold and silver coins and US currency”; and “all computers,”
including “eleven computers, two iPads, several external hard drives, CD’s,
thumb drives.” Am. Compl. ¶¶ 12, 24, 26, 49. He alleges that the agents used
unreasonable force, humiliated him, and exposed bystanders to toxic fumes
by drilling into a safe. Am. Compl. ¶ 60–72.
Schanzle further alleges that he asked the agents for a warrant, and
they gave him a document that referenced Attachments A and B for
identification of the persons or property to be searched and seized. Am.
Compl. ¶¶ 13–14. Schanzle alleges that he requested Attachments A and B
from the agents on the day of the search, to no avail. Am. Compl. ¶ 16.
Schanzle alleges that, five days later, he made the same request of the clerk
of court, who told him that “the affidavit of probable cause was not available
and was under the seal of the court.” Am. Compl. ¶ 17.
Schanzle, proceeding pro se, sued the agents, the magistrate judge,
and the prosecutor (the Government), contending that their conduct violated
the Fourth and Eighth Amendments and federal statutes. Granting the
Government’s motion and overruling Schanzle’s objections, the district
court dismissed Schanzle’s complaint in full. The district court adopted the
magistrate judge’s conclusion that the Government was entitled to dismissal
on all claims because: (1) Schanzle did not overcome judicial and
prosecutorial immunity for the magistrate judge and prosecutor; (2) Schanzle
did not state a Fourth Amendment claim based on the warrant Attachments,
the agents’ force, his humiliation, or the toxic fumes; (3) Schanzle did not
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state an Eighth Amendment claim; and (4) Schanzle did not state a statutory
claim.
For the same reasons the district court gave, we agree as to (1), judicial
and prosecutorial immunity; (4), the statutory claims; and the portion of (2)
concluding that Schanzle fails to state a Fourth Amendment claim based on
the agents’ force, his humiliation, or the toxic fumes.
We disagree, however, as to the remainder of (2), the Fourth
Amendment claim based on the warrant Attachments. This record contains
inadequate information to support a conclusion that Schanzle fails to state a
Fourth Amendment claim.
Finally, we agree with the district court’s conclusion as to (3), that
Schanzle fails to state an Eighth Amendment claim, but not the district
court’s reasons.
We address each in turn.
I
We review 12(b)(6) rulings de novo, accepting Schanzle’s allegations
as true, and holding him to “less stringent standards than formal pleadings
drafted by lawyers.” Bustos v. Martini Club Inc., 599 F.3d 458, 461–62 (5th
Cir. 2010). His complaint should not be dismissed unless he fails to raise a
right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 559 (2007); see also Fed. R. Civ. P. 12(b)(6).
II
As to the Fourth Amendment, Schanzle argues that the warrant was
unconstitutional because he has not received Attachments A and B. The
Government argues that Schanzle was not entitled to the Attachments at the
time of the search.
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Our precedents demonstrate that the Fourth Amendment permits a
warrant to incorporate documents by reference, United States v. Beaumont,
972 F.2d 553, 561 (5th Cir. 1992); accord United States v. Aguirre, 664 F.3d
606, 614 (5th Cir. 2011),
1
including sealed documents, United States v.
Cherna, 184 F.3d 403, 412 (5th Cir. 1999).
2
True, we once stated that
supporting affidavits must be attached to the warrant to protect “the person
whose premises are to be searched.” United States v. Haydel, 649 F.2d 1152
(5th Cir. Unit A July 1981), cert. denied, 455 U.S. 1022 (1982). But our
subsequent cases have not interpreted this statement as providing occupants
with a Fourth Amendment right to obtain warrant attachments. See
Beaumont, 972 F.2d at 561 (permitting incorporation by reference in lieu of
attachment).
3
In any event, as our sister circuits have concluded, we could
not recognize such a right after the Supreme Court decided United States v.
Grubbs, 547 U.S. 90 (2006).
4

1
We may consider both civil and criminal cases. See United States v. Allen, 625 F.3d
830, 838 (5th Cir. 2010) (concluding in a criminal case it was “was incorrect to distinguish”
a Supreme Court Fourth Amendment case “on the basis of its civil origins”).
2
In Cherna, the officer could not attach or serve the warrant’s incorporated
affidavit “because it had been placed under seal.” Id. We found no Fourth Amendment
violation on those grounds because, by issuing the warrant and sealing the affidavit, “the
magistrate judge was essentially assuring [the officer] that the warrant, unattached to the
affidavit, was sufficient to authorize the search she had requested.” Id.
3
See also Aguirre, 664 F.3d at 614 (“In reviewing challenges to particularity we read
the warrant as a whole, including its accompanying affidavit and attachments.”).
4
See United States v. Hurwitz, 459 F.3d 463, 472 (4th Cir. 2006) (“[T]he search
warrant properly cross-referenced the Attachment which, in turn, supplied the requisite
particularity to the search warrant, regardless of whether the Attachment accompanied or
was appended to the search warrant at the time it was executed.”); Baranski v. Fifteen
Unknown Agents of Bureau of Alcohol, Tobacco & Firearms, 452 F.3d 433, 443 (6th Cir. 2006)
(failing to provide the occupant with an incorporated affidavit may factor into the
reasonableness of a search, but cannot “make a warrant-supported search a warrantless
one”); see also United States v. Pulliam, 748 F.3d 967, 974 (10th Cir. 2014) (similar).
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The Court in Grubbs rejected the Ninth Circuit’s assumption that an
“executing officer must present the property owner with a copy of the
warrant before conducting his search.” Id. at 98–99 (“[T]he requirement of
particular description does not protect an interest in monitoring searches.”).
Such a requirement would ignore the Founders’ choice not to provide a
“license to engage the police in a debate over the basis for the warrant,” but
instead to “interpos[e], ex ante, the ‘deliberate, impartial judgment of a
judicial officer . . . between the citizen and the police’” and “provid[e], ex
post, a right to suppress evidence improperly obtained and a cause of action
for damages.” Grubbs, 547 U.S. at 98–99.
So, t o the extent Schanzle challenges the search because he was not
contemporaneously provided with the Attachments, the district court
correctly concluded that he fails to state a Fourth Amendment claim.
But the complaint does not stop there: Schanzle asserts that he has
never been able to obtain the Attachments. When he asked to view “the
affidavit of probable cause,” Schanzle alleges, the clerk of court told him it
“was not available and under the seal of the court.” Am. Compl. ¶ 17. What
is more, Schanzle asserts that the Attachments were ordered to be unsealed
after 30 days. The Government does not describe or provide the
Attachments, or explain why or whether they remain sealed.
5

And if one or both Attachments did not exist, that would be a problem.
The Fourth Amendment limits searches to the particular places where
evidence of a suspected crime could reasonably be—for instance, if officers

5
The Government argues that Schanzle failed to pursue criminal remedies for the
alleged violations, counseling against recognizing his Bivens claim. The Government
further argues that Schanzle failed to properly serve his complaint. The district court did
not address these arguments, so we will not address them. Wise v. Wilkie, 955 F.3d 430, 439
n.39 (5th Cir. 2020).
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are looking for evidence of speeding or driving with a suspended license, they
would not reasonably expect to find that by searching inside a vehicle. See
Arizona v. Gant, 556 U.S. 332, 344 (2009) (license); Knowles v. Iowa, 525 U.S.
113, 118 (1998) (speeding). Similarly, officers looking for gambling
paraphernalia would not reasonably expect to find that by viewing films they
happen upon during their search. Stanley v. Georgia, 394 U.S. 557, 571 (1969)
(Stewart, J., concurring).
6

Here, the warrant instructs the reader to “see Attachment A” to
identify the persons or property the Government asked to search, and to “see
Attachment B” to identify what the Government expected the search to
reveal and what persons or property would be seized. Am. Compl. Ex. 1.
Without Attachment B, then, the warrant does not explain what the
Government expects to find.
7

The district court stated that Attachment A was 32 pages and
“described the property and structures to be searched,” and that
Attachment B “described the evidence, fruits and instrumentalities to be
seized during the search.” But de novo review does not allow us to take the
district court’s word for it, any more than the Government’s.
On direct review of an order to seal probable cause affidavits (in
support of IRS search warrants, as here), we have remanded for the district
court to “articulate its reasons” at “a level of detail that will allow for this
Court’s review.” United States v. Sealed Search Warrants, 868 F.3d 385, 397–
98 (5th Cir. 2017). We explained that the district court’s findings,

6
Cf. Maryland v. Buie, 494 U.S. 325, 335, (1990) (during protective sweep, it was
unreasonable for officers to look for hidden people in a running suit).
7
Schanzle asserts that Attachment A, included in the record on appeal, was filed
in his criminal case.
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“conclusory and lack[ing] detail,” left us “unable to discern” whether there
was an abuse of discretion. Id. at 390, 397.
Here, likewise, we cannot evaluate the warrant’s Fourth Amendment
compliance because we do not know what the Attachments say, and they are
the warrant’s only source of particularity. And Schanzle cannot be expected
to mount his Fourth Amendment claim (nor could a lawyer) without knowing
what the Attachments say.
On this record, a finding that the warrant complies with the Fourth
Amendment would boil down to trusting the say-so of the Government and
the district court. This we decline to do. Schanzle’s Fourth Amendment
claim cannot be dismissed on this record.
III
In addition, Schanzle complains that the Government violated the
Eighth Amendment by seizing “between $2 and $3 million dollars in assets”
without justification. Am. Compl. ¶ 49. The Government argues that
Schanzle states no Eighth Amendment claim because he relies on authority
about civil in rem forfeitures, and no civil forfeiture occurred here.
The district court accepted the Government’s argument, concluding
that Schanzle failed to state an Eighth Amendment claim because he cited
the wrong Eighth Amendment case. But that does not move the ball: a pro se
litigant who states a claim is just as likely to “fail[] to cite proper legal
authority” as a pro se litigant who does not state a claim. Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520–
21 (1972)). Of course, the court was not obliged to act as Schanzle’s lawyer,
but it was obliged to evaluate the alleged facts and the claim’s legal standard
before concluding Schanzle failed to allege facts to state that claim.
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We may, however, affirm “on any basis supported by the record,” R2
Investments LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005), and Schanzle’s
complaint reveals a defect in federal jurisdiction.
To be sure, the Government “may not by exercising its power to seize,
effect a [d]e facto forfeiture by retaining the property seized indefinitely.”
United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1212 (10th Cir. 2001)
(quoting United States v. Premises Known as 608 Taylor Ave., Apt. 302, 584
F.2d 1297, 1302 (3d Cir. 1978)). Accordingly, “[t]he general rule is that
seized property, other than contraband, should be returned to its rightful
owner once the criminal proceedings have terminated.” Cooper v. City of
Greenwood, 904 F.2d 302, 304 (5th Cir. 1990) (quoting United States v.
Farrell, 606 F.2d 1341, 1343 (D.C. Cir. 1979)).
In the event that the Government does not return the seized property,
however, the Eighth Amendment “limits the government’s power to extract
payments, whether in cash or in kind, ‘as punishment for some offense’” by
prohibiting “excessive fines.” Timbs v. Indiana, 139 S. Ct. 682, 687 (2019).
The Excessive Fines Clause restricts the Government’s power to obtain
ownership of seized property, which generally occurs through civil forfeiture
proceedings (in rem proceedings against the assets themselves) and criminal
forfeiture proceedings (proceedings against the owner of the assets). See
Timbs, 139 S. Ct. at 686, 690; United States v. Bajakajian, 524 U.S. 321, 331–
32 (1998). Federal statutes also govern the Government’s forfeiture powers.
E.g., 18 U.S.C. § 981 (civil); id. § 982 (criminal).
But “[a] ripe controversy is a necessary component of subject matter
jurisdiction,” to prevent federal courts from making “premature or
speculative” decisions. Lower Colo. River Auth. v. Papalote Creek II, L.L.C.,
858 F.3d 916, 922, 923 (5th Cir. 2017) (quoting Shields v. Norton, 289 F.3d
832, 835 (5th Cir. 2002)). “We may raise ripeness sua sponte . . . .” Rosedale
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Missionary Baptist Church v. New Orleans City, 641 F.3d 86, 90–91 (5th Cir.
2011). And challenges under the Excessive Fines Clause are not ripe before a
“final forfeiture order or judgment has been entered.” United States v.
Blackman, 746 F.3d 137, 144 (4th Cir. 2014); accord United States v. Covey,
232 F.3d 641, 646 (8th Cir. 2000); Cheffer v. Reno, 55 F.3d 1517, 1523 (11th
Cir. 1995).
Schanzle alleges that the agents took and kept “between $2 and $3
million dollars in assets” without any connection to illegal activity. Am.
Compl. ¶¶ 49–50, 83–89. But Schanzle alleges no facts, in his complaint or
elsewhere in the record, that would show that the Government held
Schanzle’s seized property according to the entry of a final forfeiture order
or judgment. Therefore, his Eighth Amendment claim is not ripe, depriving
the federal courts of jurisdiction to consider it.
***
We AFFIRM dismissal of Schanzle’s statutory claims; his Fourth
Amendment claims based on the agents’ force, his humiliation, and the safe’s
fumes; his claims barred by judicial and prosecutorial immunity; and his
Eighth Amendment claim. We VACATE dismissal of his Fourth
Amendment claim based on the warrant Attachments. We REMAND for
proceedings consistent with this opinion.
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