Leo C. Brutsche v. City of Kent and King County

In executing a search warrant for a suspected



methamphetamine lab on premises owned by petitioner Leo C. Brutsche, law



enforcement officers using a battering ram to gain entry caused physical damage to



doors and door jambs. Mr. Brutsche brought suit against the city of Kent (the



City), among others, arguing that the officers had a duty to conduct the search so



as to avoid unnecessary damage and do the least damage to the property consistent



with a thorough investigation, that they breached this duty, and that the City is



liable for the damage. The trial court granted summary judgment in favor of the



City and the Court of Appeals affirmed the decision. We hold that although a



trespass claim may be asserted against a city alleging that law enforcement officers



exceed the scope of their lawful authority to enter property to execute a search



warrant, summary judgment in this case was proper because as a matter of law the



officers did not commit trespass as Mr. Brutsche contends. We also hold that



summary judgment was properly granted with respect to Mr. Brutsche's claim that



the damage to his property constituted a taking of private property for which the



City must pay just compensation and decline to overrule Eggleston v. Pierce



County, 148 Wn.2d 760, 64 P.3d 618 (2003).



FACTS



On July 8, 2003, a King County District Court judge signed a search



warrant authorizing the search of an abandoned warehouse, several outbuildings,



eight semitrailers, and a mobile home on property in Kent owned by Mr. Brutsche.



The warrant also authorized police to search James F. Brutsche (Leo Brutsche's



son), locked containers, and numerous abandoned or disabled vehicles within the



fenced boundary of the property. It authorized the seizure of controlled



substances, including methamphetamine, as well as paraphernalia and equipment



used in connection with the manufacture and distribution of methamphetamine and



other specified items.



On July 10, 2003, the Valley Special Response Team (SRT), a multi-



jurisdictional group of law enforcement officers from several South King County



law enforcement jurisdictions, executed the search warrant. The SRT was called



on to execute the warrant because of its training for special situations, including



serving high risk warrants. The search warrant for Mr. Brutsche's property was



considered to be high risk because "it involved a search for the manufacture of



methamphetamines and the apprehension of subjects in the methamphetamine



trade." Clerk's Papers (CP) at 44 (Decl. of Darren Majack, a Kent patrol officer



who was a member of the SRT executing the search warrant); see CP at 47 (Decl.



of Mike Villa, a lieutenant with the Tukwila Police Department, who was



commander of the SRT) (the SRT is used for executing warrants at high risk sites



such as methamphetamine lab sites, which "are known to be dangerous and



volatile and pose a significant risk to officer safety").



When the SRT arrived at the property in marked vehicles and wearing



police uniforms, James Brutsche ran from an outdoor area into the mobile home



and attempted to barricade himself and another suspect in the home by placing a



dowel in the sliding glass door. He ran from the SRT "despite an announcement,



repeated three times over the loud speaker from one of the vehicles, that the police



had arrived and had a search warrant." CP at 44 (Decl. of Majack).



The SRT "almost immediately" breached the glass door of the mobile home



with a battering ram. Id. Officer Majack stated that this tactic was necessary



because SRT did not know if James Brutsche was arming himself or rallying



unaccounted-for individuals in the mobile home to engage police in a fight, and to



minimize the likelihood that evidence was being destroyed. CP at 44-45; see CP



at 47, 48 (Decl. of Villa) ("[m]ethamphetamine users are typically paranoid, will



act in an irrational fashion, and are often armed to protect themselves from other



criminals"). James Brutsche was combative and resistant, and officers used a



"taser" to subdue him. CP at 45 (Decl. of Majack); CP at 49 (Decl. of Villa).



The SRT also decided it was necessary to enter other structures on the



property immediately because they provided possible cover and concealment for



unknown persons and to prevent possible destruction of evidence. Lieutenant



Villa said that while the doors of some structures were unlocked several were



locked and thus it was necessary to breach these doors with the battering ram. CP



at 49 (Decl. of Villa). He stated that although he did not see Leo Brutsche at the



scene, as the SRT commander he would not have permitted Mr. Brutsche access to



the property during the search because



[a]s a matter of standard operating procedure, the SRT does not allow access in or out of a potential crime scene until a search has been completed. This procedure not only maintains the integrity of the potential crime scene, but also ensures the safety of innocent bystanders in a potentially high risk environment.



Id. at 50.



Mr. Brutsche maintains the destruction of many of his doors and door jams



was unnecessary. He stated, "At the time of the raid, I offered my keys to the officer in charge, Sergeant Jaime Sidell.[1] I offered to escort the officers around



my property and open all doors for them. Sergeant Sidell rejected my offer saying



'. . . we have our own way of getting in.'" CP at 89 (Certification of Leo C.



Brutsche). Mr. Brutsche added that use of his keys would be quicker and quieter,



making the entry safer for the officers, and would not damage the doors and door



frames. Id. He said that he knew there were no illegal drugs or weapons on the



property and offered to escort the officers at the time of the search because there



were no genuine officer safety concerns or any illegal activities. Mr. Brutsche



hired a carpenter to repair the doors and door jams damaged in the raid, at a cost of



$4,921.51. The SRT did not seize any evidence.



Mr. Brutsche brought this action against King County and the City,



asserting several claims, among them claims of trespass, negligence, and a taking of property without just compensation.2 In November 2004, the matter was



transferred to arbitration. The parties stipulated to dismissal of King County,



which settled with Mr. Brutsche prior to the arbitration hearing. The arbitrator



awarded $2,400 to Mr. Brutsche, plus costs.



Mr. Brutsche moved for a trial de novo in superior court. The City moved



for dismissal under CR 12(b)(6). This motion was denied. On June 24, 2005, the



City moved for summary judgment. A month later the court granted this motion.



The City also moved for an award of $27,124 in attorney fees under MAR 7.3



2 Mr. Brutsche and the Estate of James Brutsche filed an unsuccessful civil rights suit in federal court against the Port of Seattle, the cities of Auburn, Federal Way, Kent, Renton, and Tukwila, and individual law enforcement officers who participated in the raid and search of Mr. Brutsche's property.



because Mr. Brutsche did not improve his position. On September 16, 2005, the



court awarded the City attorney fees of $4,050.



Mr. Brutsche appealed; the City cross-appealed the amount of attorney fees.



The Court of Appeals affirmed the grant of summary judgment but remanded on



the attorney fee issue for development of a record for review. The Court of



Appeals awarded the City attorney fees on appeal under MAR 7.3 because Mr.



Brutsche appealed and again failed to improve his position. Brutsche v. City of



Kent, noted at 134 Wn. App. 1002, 2006 WL 1980216, review granted, 160



Wn.2d 1017 (2007).



We limited review to Mr. Brutsche's common law negligence and trespass



claims and his takings claims under the state and federal constitutions.



Summary judgment is reviewed de novo. Osborn v. Mason County, 157



Wn.2d 18, 22, 134 P.3d 197 (2006). Summary judgment is appropriate where



there is no genuine issue as to any material fact and the moving party is entitled to



judgment as a matter of law. CR 56(c). Evidence is construed in the light most



favorable to the nonmoving party. Osborn, 157 Wn.2d at 22.



ANALYSIS



Mr. Brutsche maintains that pursuant to this court's decision in Goldsby v.



Stewart, 158 Wash. 39, 290 P. 422 (1930), the City is liable in negligence. In



Goldsby, the court stated that law enforcement officers executing a search warrant



have a duty to conduct a search in a reasonable manner and avoid unnecessary



damage to property of innocent third parties. We agree that Goldsby is sound



authority, but it is authority favoring Mr. Brutsche's trespass claim, not negligence.3



Under Goldsby, which has never been overruled, and the Restatement



(Second) of Torts (1965), a city may be liable in trespass for unnecessary damage



to property caused by its law enforcement officers executing a search warrant, on



the theory that unreasonable damage to the property exceeds the privilege to be



present on the property and search. In Goldsby, the plaintiffs owned a building



and had rented the upper half to a tenant. Goldsby, 158 Wash. 39. Law



enforcement personnel from Snohomish County and the city of Everett searched



the upper level premises for alcoholic beverages pursuant to a valid search



warrant. Id. In the course of the search, the officers allegedly damaged the



building and removed an entrance door to the second floor. Id. at 40. The



plaintiffs brought suit against the sheriff of Snohomish County and two deputies,



the Everett commissioner of public safety, and the Everett chief of police seeking



damages for injuries to the building. Id. at 39.



At the close of evidence, the court granted the defendants' motion for



dismissal. Id. at 40. The plaintiffs appealed, arguing that the court invaded the



province of the jury and decided the case itself on disputed facts. Id. This court



agreed, holding that the trial court erred in ruling as a matter of law that the



plaintiffs had failed to present a case for the jury, and reversed and remanded for a



new trial. Id. at 42. The court stated the law as follows: "In executing a search



warrant, officers of the law should do no unnecessary damage to the property to be



examined, and should so conduct the search as to do the least damage to the



property consistent with a thorough investigation." Id. at 41. The court said that



"[i]t was for the jury to say whether or not [the officers] had, in searching



appellants' property, unnecessarily damaged the same, and thereby rendered



themselves liable to appellants." Id. at 41-42.



The only authorities cited in Goldsby for the rule of law concerning



unnecessary damage are Luther v. Borden, 48 U.S. (7 How.) 1, 12 L. Ed 581



(1849), Buckley v. Beaulieu, 104 Me. 56, 71 A. 70 (1908), and 24 Ruling Case



Law § 11, at 708 (William M. McKinney & Burdette A. Rich eds., 1919).



Goldsby, 158 Wash. at 41. Both of the cited cases involved actions of trespass quare clausum.4 An action in "trespass quare clausum fregit" is "[a]t common law,



an action to recover damages resulting from another's unlawful entry on one's



land that is visibly enclosed. . . . Also termed trespass to real property; trespass to land." Black's Law Dictionary 1542 (8th ed. 2004).5 The treatise cited in



Goldsby in turn cites and quotes the same two cases that the court cited. There is no mention in Goldsby of negligence; it is a trespass case.6



Therefore, under Goldsby, if officers executing a search warrant



unnecessarily damage the property while conducting their search, that is, if they



damage the property to a greater extent than is consistent with a thorough



investigation, they exceed the privilege to be on the land and liability in trespass



can result.



Restatement (Second) of Torts § 214 leads to the same result. A person is



liable for trespass if he or she intentionally (1) enters or causes another person or a



thing to enter land in the possession of another or (2) remains on the land or (3)



fails to remove from the land a thing that he or she is under a duty to remove. See



Bradley v. Am. Smelting & Ref. Co., 104 Wn.2d 677, 681-84, 709 P.2d 782 (1985)



The court's reasoning that the trespass claim was permitted is like the law stated in the Restatement (Second) of Torts § 214(1), discussed below, recognizing liability for trespass when officers executing a search warrant engage in unreasonable acts beyond their privilege to enter property under a search warrant. 5 See also The Law Dictionary 394 (Anderson Publ'g 1997) ("trespass quare clausum fregit, i.e., entry on another's close (q.v.), or land without lawful authority"). 6 The parties' briefs submitted in Goldsby do not mention negligence, either. The plaintiffs- appellants cited only the same two cases that this court cited in its opinion, Appellants' Opening Brief at 4-7, Goldsby v. Stewart, No. 22392 (Wash. Sup. Ct.), reprinted in 1 Brs. 158 Wash. (1930), and the defendants-respondents said they had no quarrel with the law stated in the appellants' brief, Respondents' Brief at 15-16, Goldsby, supra.



(applying Restatement (Second) of Torts § 158).7 Liability for damage may arise



under section 214(1), which provides that "[a]n actor who has in an unreasonable



manner exercised any privilege to enter land is subject to liability for any harm to



a legally protected interest of another caused by such unreasonable conduct." See



Fradkin v. Northshore Util. Dist., 96 Wn. App. 118, 123, 977 P.2d 1265 (1999)



(quoting § 214(1) cmt. a).



We adopt section 214 as an accurate statement of the law that applies to



trespass claims involving execution of search warrants on private property.



Comment a to section 214(1), explains that



[a] privilege to enter land may be unreasonably exercised either by the intentional doing of an act which a reasonable man would not regard as necessary to effectuate the purposes for which the privilege is given, or by any negligence in the manner in which the privilege is exercised. Subsection (1), therefore, applies not only where the actor deliberately abuses his privilege by doing an act which he recognizes as unnecessary or deliberately does an act which a reasonable man would so recognize, but also where the actor does not use reasonable care to prevent the exercise of his privilege from involving an unreasonable risk of harm to the legally protected interests of others.



As the comment explains, the type of conduct giving rise to liability under



section 214(1) can be either intentional or negligent misconduct, but the action



itself is a trespass action. The City concedes that its conduct was intentional; it



did not accidentally breach doors with the battering ram. We agree that the



conduct giving rise to the injury to Mr. Brutsche's property was intentional



because the law enforcement officers intentionally and deliberately used battering



rams to breach doors.



The City argues, however, that no trespass occurred because it had a valid,



judicially issued warrant that authorized the police to open locked containers





during the course of the search. As Restatement (Second) of Torts § 210 provides,



the privilege to execute an order of a court to do any act on the land "carries with



it the privilege to enter the land for the purpose of executing the order." Comment



a to section 210 states, however: "As to the actor's liability for harm done by his



unreasonable manner of exercising the privilege stated in this Section, see §



214(1)." Thus, under the Restatement (Second) of Torts § 210, section 214(1)



applies even if the entry onto the property is initially lawful for purposes of a search pursuant to a valid warrant.8 The fact that a valid warrant exists is not an



automatic bar to a trespass claim.



Under Restatement (Second) of Torts § 214(1), and in light of Goldsby, Mr.



Brutsche's trespass claim is a proper cause of action. See also 68 Am. Jur. 2d



Searches and Seizures § 309 (2008) ("the victim of an unlawful search and seizure



has available the remedy of trespass"), available at http://web2westlaw.com; see,



e.g., Sovich v. State, 92 Ind. App. 103, 167 N.E. 145, 146 (1929) (recognizing that



officers executing a valid search warrant may be liable in damages for acts



constituting a malicious trespass); Richardson v. Henderson, 651 So. 2d 501, 504-



06 (La. Ct. App. 1995) (relying on general principles in 68 Am. Jur. 2d § 229



(1993), that execution of a search warrant must be carried out in an orderly



manner and liability in trespass may result if the officers executing the warrant



exceed their authority or wantonly destroy property in making their search; here,



officers "thoroughly 'trashed'" the plaintiffs' home, including spilling flour,



splattering eggs on the floor, and tossing bags of chips and candy across the living



room; judgment for plaintiffs affirmed an amount to clean the home and to



compensate for emotional distress); Onderdonk v. State, 170 Misc. 2d 155, 162-



64, 648 N.Y.S.2d 214 (1996) (permitting recovery pursuant to a trespass claim of



compensatory damages for damage to the plaintiff's property resulting from an



unreasonably conducted search); Moore v. Kilmer, 185 Okla. 158, 90 P.2d 892,



893 (1939) (implicitly recognizing cause of action for trespass: an officer "'is not



liable as a trespasser for executing the [warrant] in an orderly manner'"; evidence



did not support liability) (quoting Knisley v. Ham, 39 Okla. 623, 623 (syllabus),



136 P. 427 (1913); Jackson v. Harries, 65 Utah 282, 236 P. 234, 236-37, 238



(1925) (damages sustained on basis of unlawful trespass); Gillmor v. Salt Lake



City, 32 Utah 180, 89 P. 714 (1907) (action for damages for a trespass to



property); but see Wright v. United States, 963 F. Supp. 7, 19 (D.D.C. 1977)



(presence of a valid search warrant is a complete defense to trespass).



However, we reject Mr. Brutsche's claim that the City is liable under the



doctrine of trespass ab initio. This doctrine, which was accepted in the first



restatement of torts, has been thoroughly repudiated in Restatement (Second) of



Torts. "Trespass ab initio" is described as follows:



He who under authority of law enters upon another's land, and is subsequently guilty of an abuse of that authority by committing a wrong of misfeasance against the owner, is deemed to have entered originally without authority, and is therefore liable as a trespasser ab initio for the original entry itself, as well as for all damaging acts subsequently done by him thereunder. By the subsequent abuse, he forfeits the protection which the law would otherwise give to the original entry. The abuse of the authority not only terminates it, but revokes it retrospectively, so that it is deemed never to have existed. But if one enters under an authority in fact, given by the owner, his subsequent abuse of that authority does not make him liable as a trespasser for the original entry. He is liable only for abuse or misconduct occurring after entry. It has been said that the rule of trespass ab initio was "primarily one of procedure," . . . [b]ut the rule did not merely affect the form of action under the old procedure. It created a substantive liability which would not otherwise exist. And "its secondary effect upon the substantive law still remains, viz., that it enables the plaintiff to recover damages for the entire transaction, and not merely for the wrongful portion of it" (the abuse subsequent to the entry).



Jeremiah Smith, Surviving Fictions, 27 Yale L.J. 147, 164 (1917) (footnotes



omitted) (some emphasis added) (quoting John W. Salmond, The Law of Torts: A



Treatise on English Law of Liability for Civil Injuries 168 (1907)).



According to Restatement (Second) of Torts § 214(2) cmt. e, the doctrine is



a "peculiar and anomalous fiction" having "its origin in the ancient law of distress



of property" "in a time of strict rules of pleading, where much subsequent



misconduct was not actionable in itself, and it served to afford a remedy where



none was otherwise available." Since about 1900, the doctrine has been rejected



by the majority of courts. Restatement (Second) of Torts app. (reporter's notes).



Section 214(2) also rejects the doctrine, providing instead that



[o]ne who properly enters land in the exercise of any privilege to do so, and thereafter commits an act which is tortious, is subject to liability only for such tortious act, and does not become liable for his original lawful entry, or for his lawful acts on the land prior to the tortious conduct.



Mr. Brutsche acknowledges that section 214(2) rejects the doctrine, but maintains that it is still viable in Washington state.9 As Mr. Brutsche correctly



states, cases applying the doctrine have not been overruled.10



Under the modern view set out in Restatement (Second) of Torts § 214, the



trespass ab initio doctrine is not only abrogated, it is also unnecessary. An actor



who unreasonably exercises the privilege to enter or remain on the land is subject



to liability under section 214 regardless of whether the initial entry onto the land is



lawful. We take this opportunity to adopt section 214 in its entirety. Accordingly,



a trespass action is appropriate under section 214.



Next, the City contends that summary judgment was proper because



reasonable minds cannot differ on the evidence submitted and there was no



trespass as a matter of law. We agree.



Mr. Brutsche contends that the officers exceeded the privilege to be on his



land executing the search warrant. He points out that he offered his keys to the



officers and offered to escort them around his property and open all doors. He



maintains use of his keys would have been quicker and quieter, making entry safer



for the officers while avoiding damage to the doors and frames. He states that he



knew there were no illegal drugs or weapons on the property and that he offered to



accompany the officers because there were no genuine concerns for officer safety.



However, the evidence submitted by the City establishes that the search was



authorized for evidence of methamphetamine manufacture and that such searches



are often dangerous. There was also the risk of harm to Mr. Brutsche if he



accompanied the officers, as well as the possibility that his presence would hamper



or limit the search. The declarations of SRT Commander Villa and Officer



Majack, which are largely uncontroverted, show that it was necessary to breach



the doors and that James Brutsche's (Mr. Brutsche's son's) actions dictated the



need for the officers' actions. These declarations describe the high risk associated



with search warrants for methamphetamine manufacture and the apprehension of



individuals in the methamphetamine trade. They explain that James Brutsche was



suspected of being involved in the methamphetamine trade, that he tried to



barricade himself and another suspect in the mobile home by using a dowel to bar



a sliding glass door, and that the officers did not know whether he was arming



himself or attempting to rally unknown persons in the home to engage in a fight



with police. Further, the declarations describe the danger that evidence would be



destroyed before they could search the premises. Villa's declaration also explains



that standard operating procedure is to bar access to search scenes during a search,



in part to protect innocent bystanders.



Under these facts, reasonable minds could not differ. The officers did not



engage in unreasonable conduct in exercising their privilege to be on the property.



We hold that the trial court properly granted summary judgment on the trespass



claim.



Mr. Brutsche also asserted a negligence claim, but in his petition for review



and supplemental brief in this court he relies entirely on Goldsby as controlling



precedent on his negligence claim. Because Goldsby is, as explained, a trespass



case, and because the actions of the officers in breaching the doors on Brutsche's



property were intentional, not accidental, we decline to address the negligence



claim.



We next turn to Mr. Brutsche's takings claim. Mr. Brutsche argues that



destruction of property of an innocent third party during execution of a search



warrant where no evidence is seized constitutes a compensable taking under article



I, section 16 of the Washington State Constitution and the Fifth and Fourteenth



Amendments to the United States Constitution. The Court of Appeals rejected this



argument on the ground that under this court's reasoning in Eggleston, 148 Wn.2d



760, there is no compensable taking under the state constitution for seizure and



preservation of evidence or for destruction of property by the police when



executing a search warrant. Mr. Brutsche contends that Eggleston is



distinguishable.



Article I, section 16 of the Washington State Constitution provides in part



that "[n]o private property shall be taken or damaged for public or private use



without just compensation having been first made."



Contrary to Mr. Brutsche's claim, Eggleston is not distinguishable and the



Court of Appeals correctly held that no takings occurred given our holding in that



case. In Eggleston, a property owner brought a claim alleging a taking under



article I, section 16 after sheriff's deputies executed a search warrant for her home,



uninhabited at the time, pertaining to a murder allegedly committed by her son,



Brian. The officers collected evidence, including two walls, removal of which



made the house unstable and uninhabitable. Brian was subsequently tried and



convicted, but the walls were not used as evidence. The Court of Appeals



reversed his conviction, and at the time this court decided Eggleston, an order



preserving the scene at the house was still in effect and would remain in effect



until vacated or modified, or until the criminal case was complete.



We held in Eggleston that the destruction of property by police activity



other than collecting evidence pursuant to a warrant is not a takings under article I, section 16. Eggleston, 148 Wn.2d at 772-76.11 We noted there is a split of



authority in other states as to whether damage of property during a search is a



compensable taking, but found the analysis of courts in California and Iowa more compelling than those in Texas, Minnesota, and New Jersey.12 We observed that



the California court's opinion is especially important because California's takings



clause was a model for Washington's. Id. at 772 n.8; see Customer Co. v. City of



Sacramento, 10 Cal. 4th 368, 895 P.2d 900, 41 Cal. Rptr. 2d 658 (1995).



Our decision rested on the distinction between police power and the power



of eminent domain: "'[e]minent domain takes private property for a public use,



while the police power regulates its use and enjoyment, or if it takes or damages



it, it is not a taking or damaging for the public use, but to conserve the safety,



morals, health and general welfare of the public.'" Eggleston, 148 Wn.2d at 768



(quoting Conger v. Pierce County, 116 Wash. 27, 36, 198 P. 377 (1921)). "The



gathering and preserving of evidence is a police power function, necessary for the



safety and general welfare of society." Id.



Mr. Brutsche contends that Eggleston is distinguishable because in his case



the police did not seize any evidence and there was no resulting prosecution. This



difference is not a basis for distinguishing the case. Because the SRT searched for



evidence pursuant to the warrant, Eggleston's analysis applies.



Mr. Brutsche urges that Eggleston should be overruled. "A case should be



overruled upon 'a clear showing that an established rule is incorrect and harmful.'"



State v. Bradshaw, 152 Wn.2d 528, 542, 98 P.3d 1190 (2004) (quoting In re



Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970)).



Mr. Brutsche does not make this showing. Rather, for the most part he simply



reargues the same arguments that were thoroughly considered and decided in



Eggleston.



One contention he makes, however, is that Eggleston was wrongly decided



because it concludes that compensation cannot be sought and paid after a taking



has occurred. He says the constitutional provision is not, however, limited to prior



compensation, but requires compensation where it is found to be due after the



taking is occurred. It is clear, he urges, that an action can be brought to seek



compensation after the fact. Mr. Brutsche misunderstands the court's reasoning.



The portion of Eggleston about which he complains involves an examination of



the language of article I, section 16 as part of our inquiry into whether in 1889



when the state constitution was adopted it was intended to require compensation



for damage to property during execution of a search warrant. Eggleston, 148



Wn.2d at 769. We said, "Article I, section 16 requires prior compensation. It



would be administratively awkward (and constitutionally unlikely) to require prior



compensation for the destruction of property by police while apprehending a



suspect or executing a search warrant" Id. Stated a little differently, it would be



highly problematic for a municipality to exercise eminent domain power and pay



compensation in advance for destruction to follow during execution of a warrant.



Because this is so, the language of article I, section 16 indicates, as the court



reasoned, that compensation was not contemplated for damage occurring during



execution of a warrant. We did not say that compensation cannot be sought after a



taking has occurred.





Mr. Brutsche has failed to show that Eggleston was wrongly decided, and



he has not presented a persuasive argument for overruling the case. Under



Eggleston, no compensable taking occurred under article I, section 16.



Mr. Brutsche also maintains that a taking occurred under the Fifth and



Fourteenth Amendments to the United States Constitution. He principally relies



on Wallace v. City of Atlantic City, 257 N.J. Super. 404, 608 A.2d 480 (Law Div.



1992), a New Jersey case considered by the court in Eggleston, and Loretto v.



Teleprompter Manhattan CATV Corp., 458 U.S. 419, 425-37, 102 S. Ct. 3164, 73



L. Ed. 2d 868 (1982). He also relies on "cases cited therein" in Loretto but does



not discuss them or explain how they support his argument.



Initially, Wallace is a trial court decision, and therefore of little persuasive



value. Under its analysis a search is conducted for a public purpose, with the



intended beneficiary being society as a whole, and an innocent third party whose



property is damaged should not bear the sole financial burden of the undertaking,



and must be compensated for the damage. But this analysis is contradicted by



Hurtado v. United States, 410 U.S. 578, 93 S. Ct. 1157, 35 L. Ed. 2d 508 (1973),



in which material witnesses who were jailed to assure they appeared to testify



brought a claim for compensation under the Fifth Amendment alleging that their



time and liberty had been taken. The Court ruled that every person has a duty to



provide evidence and the Fifth Amendment does not require that the government



pay for the evidence. See Eggleston, 148 Wn.2d at 774-75 (citing Hurtado, 410



U.S. at 579, 589). Contrary to the reasoning in Wallace the individual does, under Hurtado, bear the burden.13 Wallace's analysis, being inconsistent with



Hurtado's, is not persuasive.



Mr. Brutsche cites Loretto for the principle that a permanent physical



invasion of property is a compensable taking under the federal constitution.



Loretto involved installation of cable television facilities on a landlord's building



under a New York City law requiring a landlord to permit installation of such



facilities. The Court held that this physical occupation of the plaintiff's rental



property was a taking despite the fact the statute might be within the state's police



power for the purpose of development of and penetration by a means of



communication having educational and community aspects. Loretto, 458 U.S. at



425-26. The Court held that "a permanent physical occupation authorized by



government is a taking without regard to the public interests that it may serve." Id.



at 426.



The Court discussed a number of cases in Loretto involving permanent



physical occupations, physical invasions short of an occupation, and regulations



that restrict the use of property. At the heart of its analysis was the premise that "a



permanent physical occupation is a government action of such a unique character



that it is a taking without regard to other factors that a court might ordinarily



examine." Id. at 432. It "is a government intrusion of an unusually serious



character." Id. at 433. "In short," the Court said, "when the 'character of the



governmental action' is a permanent physical occupation of property, our cases



uniformly have found a taking to the extent of the occupation, without regard to



whether the action achieves an important public benefit or has only minimal



economic impact on the owner." Id. at 434-35 (quoting Penn Cent. Transp. Co. v.



New York City, 438 U.S. 104, 124, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978)).



Mr. Brutsche maintains that a permanent physical occupation of his



property would have resulted had Mr. Brutsche not paid a carpenter to repair the



property. But there simply is no permanent physical occupation of property that



occurs when police officers damage property during execution of a search warrant,



and the holding in Loretto does not apply. Mr. Brutsche has not established a



taking under the federal constitution.



The Court of Appeals awarded attorney fees on appeal under MAR 7.3 and



RAP 18.1. As the City's request for attorney fees in the Court of Appeals is a



continuing request in this court, RAP 18.1(b), we similarly award fees under MAR



7.3 and RAP 18.1. See Pudmaroff v. Allen, 138 Wn.2d 55, 69, 977 P.2d 574



(1999).



We hold that the trial court properly granted summary judgment to the City



with regard to the takings claims and affirm the Court of Appeals on this issue.



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http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=792526MAJ

We adopt Restatement (Second) of Torts § 214 and conclude that liability in



trespass may arise if by intentionally doing an act that a reasonable person would



not regard as necessary to execute the warrant and thereby damage the property, or



by executing the warrant in a negligent manner and thereby damaging the



property, law enforcement officers exceed the scope of their privilege to be on the



land to execute a search warrant. Although a trespass action is a permissible cause



of action, summary judgment was properly granted in this case because, as a



matter of law, on the evidence submitted, the officers did not exceed the scope of



their privilege to be on the property to execute the search warrant. We also



conclude that Mr. Brutsche is not entitled to assert a takings claim and decline to



overrule Eggleston. We award attorney fees to the City under MAR 7.3 and RAP



18.1. Finally, we decline to address Mr. Brutsche's negligence claim.





We affirm the Court of Appeals, under different reasoning, and affirm the



trial court's grant of summary judgment.