©2012 Jack Ryan, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
At the end of last week the United States Supreme Court overturned a United States Court of Appeals for the Ninth Circuit holding regarding the liability of an officer who had sought and received a search warrant. In Messerschmidt v. Millender [i] the Court held that it will only be in a very narrow instance where an officer can have Fourth Amendment liability for violating the rules of search and seizure where the officer has sought and obtained a search warrant.
A prior United States Supreme Court case sets the foundation for understanding when an officer would have liability even though the officer had a warrant signed by a judge following review and determination by that judge that probable cause existed. In Malley v. Briggs [ii] the United States Supreme Court examined a lawsuit brought by Mr. and Mrs. Briggs against a Rhode Island State Police Officer, Trooper Malley. The Court outlined the details of the Briggs’ arrest as follows:
In December 1980, the Rhode Island State Police were conducting a court-authorized wiretap on the telephone of one Paul Driscoll, an acquaintance of [Mr. and Mrs. Brigg’s] daughter. On December 20, the police intercepted a call to Driscoll from an unknown individual who identified himself as “Dr. Shogun.” The police logsheet summarizes the call as follows: “General conversation re. a party they went to last night . . . caller says I can’t believe I was token [sic] in front of Jimmy Briggs — caller states he passed it to Louisa . . . Paul says Nancy was sitting in his lap rolling her thing.” App. 78.
Petitioner Edward Malley (hereafter petitioner) was the Rhode Island state trooper in charge of the investigation of Driscoll. After reviewing the logsheet for December 20, [Malley] decided that the call from “Dr. Shogun” was incriminating, because in drug parlance “toking” means smoking marihuana and “rolling her thing” refers to rolling a marihuana cigarette. [Malley] also concluded that another call monitored the same day showed that the party discussed by Driscoll and “Dr. Shogun” took place at [the Briggs’] house. On the basis of these two calls, [Malley] drew up felony complaints charging that [Mr. and Mrs. Briggs] and Paul Driscoll “did unlawfully conspire to violate the uniform controlled substance act of the State of Rhode Island by having [marihuana] in their possession . . . .” Id., at 74. These complaints were presented to a State District Court Judge in February 1981, after the wiretap of Driscoll’s phone had been terminated. Accompanying the complaints were unsigned warrants for [Mr. and Mrs. Briggs’] arrest, and supporting affidavits describing the two intercepted calls and [Malley’s] interpretation of them. The judge signed warrants for the arrest of [Mr. and Mrs. Briggs] and 20 other individuals charged by [Malley] as a result of information gathered through the wiretap.
[Mr. and Mrs. Briggs] were arrested at their home shortly before six o’clock on the morning of March 19, 1981. They were taken to a police station, booked, held for several hours, arraigned, and released. Local and statewide newspapers published the fact that [Mr. and Mrs. Briggs], who are prominent members of their community, had been arrested and charged with drug possession. The charges against [Mr. and Mrs. Briggs] were subsequently dropped when the grand jury to which the case was presented did not return an indictment.
Mr. and Mrs. Briggs, who were a prominent elderly couple, filed a lawsuit against Trooper Malley. It should be noted that Malley did not know who the identity of the caller, Dr. Shogun, and did not know when the alleged party occurred.
Trooper Malley argued that he should be absolutely immune from a lawsuit since he had sought judicial review of probable cause and the judge had signed off on the warrants. The Court rejected this argument and held that instead it was the qualified immunity standard which applies. The Court noted however that: “Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable will the shield of immunity be lost.” Thus, in most cases an officer is protected from liability where a warrant has been obtained.
Malley argued that even if an officer is only entitled to qualified immunity, an officer should be immune from damages when a judge, who is reviewing the warrant probable cause, signs off on the existence of probable cause. The Court, in response to this argument stated:
The analogous question in this case is whether a reasonably well-trained officer in petitioner’s position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant. If such was the case, the officer’s application for a warrant was not objectively reasonable, because it created the unnecessary danger of an unlawful arrest. It is true that in an ideal system an unreasonable request for a warrant would be harmless, because no judge would approve it. But ours is not an ideal system, and it is possible that a magistrate, working under docket pressures, will fail to perform as a magistrate should. We find it reasonable to require the officer applying for the warrant to minimize this danger by exercising reasonable professional judgment.
As a result of Malley, an officer can be liable for actions based on a bad warrant even if a judge has reviewed the probable cause affidavit and approved of the warrant. However, it is only in a case where a reasonable and well-trained officer would know that the affidavit did not establish probable cause and the officer knows he or she should not have applied for it. As noted: : “Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable will the shield of immunity be lost.”
It is against this background that the United States Supreme Court examined the lawsuit brought in Messerschmidt v. Millender. The facts in Messerschmidt were detailed by the Court as follows:
Shelly Kelly decided to break off her romantic relationship with Jerry Ray Bowen and move out of her apartment, to which Bowen had a key. Kelly feared an attack from Bowen, who had previously assaulted her and had been convicted of multiple violent felonies. She therefore asked officers from the Los Angeles County Sheriff’s Department to accompany her while she gathered her things. Deputies from the Sheriff’s Department came to assist Kelly but were called away to respond to an emergency before the move was complete.
As soon as the officers left, an enraged Bowen appeared at the bottom of the stairs to the apartment, yelling “I told you never to call the cops on me bitch!” Bowen then ran up the stairs to Kelly, grabbed her by her shirt, and tried to throw her over the railing of the second-story landing. When Kelly successfully resisted, Bowen bit her on the shoulder and attempted to drag her inside the apartment by her hair. Kelly again managed to escape Bowen’s grasp, and ran to her car. By that time, Bowen had retrieved a black sawed-off shotgun with a pistol grip. He ran in front of Kelly’s car, pointed the shotgun at her, and told Kelly that if she tried to leave he would kill her. Kelly leaned over, fully depressed the gas pedal, and sped away. Bowen fired at the car a total of five times, blowing out the car’s left front tire in the process, but Kelly managed to escape.
Kelly quickly located police officers and reported the assault. She told the police what had happened–that Bowen had attacked her after becoming “angry because she had called the Sheriff’s Department”–and she mentioned that Bowen was “an active member of the `Mona Park Crips,'” a local street gang. Kelly also provided the officers with photographs of Bowen.
Detective Curt Messerschmidt was assigned to investigate the incident. Messerschmidt met with Kelly to obtain details of the assault and information about Bowen. Kelly described the attack and informed Messerschmidt that she thought Bowen was staying at his foster mother’s home at 2234 East 120th Street. Kelly also informed Messerschmidt of Bowen’s previous assaults on her and of his gang ties.
Messerschmidt then conducted a background check on Bowen by consulting police records, California Department of Motor Vehicles records, and the “cal-gang” database. Based on this research, Messerschmidt confirmed Bowen’s connection to the 2234 East 120th Street address. He also confirmed that Bowen was an “active” member of the Mona Park Crips and a “secondary” member of the Dodge City Crips. Finally, Messerschmidt learned that Bowen had been arrested and convicted for numerous violent and firearm-related offenses. Indeed, at the time of the investigation, Bowen’s “rapsheet” spanned over 17 printed pages, and indicated that he had been arrested at least 31 times. Nine of these arrests were for firearms offenses and six were for violent crimes, including three arrests for assault with a deadly weapon (fire- arm).
Messerschmidt prepared two warrants: one to authorize Bowen’s arrest and one to authorize the search of 2234 East 120th Street. An attachment to the search warrant described the property that would be the object of the search:
“All handguns, rifles, or shotguns of any caliber, or any firearms capable of firing ammunition, or firearms or devices modified or designed to allow it [sic] to fire ammunition. All caliber of ammunition, miscellaneous gun parts, gun cleaning kits, holsters which could hold or have held any caliber handgun being sought. Any receipts or paperwork, showing the purchase, ownership, or possession of the handguns being sought. Any firearm for which there is no proof of ownership. Any firearm capable of firing or chambered to fire any caliber ammunition.
“Articles of evidence showing street gang membership or affiliation with any Street Gang to include but not limited to any reference to ‘Mona Park Crips’, includeing writings or graffiti depicting gang membership, activity or identity. Articles of personal property tending to establish the identity of person [sic] in control of the premise or premises. Any photographs or photograph albums depicting persons, vehicles, weapons or locations, which may appear relevant to gang membership, or which may depict the item being sought and or believed to be evidence in the case being investigated on this warrant, or which may depict evidence of criminal activity. Additionally to include any gang indicia that would establish the persons being sought in this warrant, affiliation or membership with the ‘Mona Park Crips’ street gang.”
Two affidavits accompanied Messerschmidt’s warrant applications. The first affidavit described Messerschmidt’s extensive law enforcement experience, including that he had served as a peace officer for 14 years, that he was then assigned to a “specialized unit” “investigating gang related crimes and arresting gang members for various violations of the law,” that he had been involved in “hundreds of gang related incidents, contacts, and or arrests” during his time on the force, and that he had “received specialized training in the field of gang related crimes” and training in “gang related shootings.”
The second affidavit–expressly incorporated into the search warrant–explained why Messerschmidt believed there was sufficient probable cause to support the warrant. That affidavit described the facts of the incident involving Kelly and Bowen in great detail, including the weapon used in the assault. The affidavit recounted that Kelly had identified Bowen as the assailant and that she thought Bowen might be found at 2234 East 120th Street. It also reported that Messerschmidt had “conducted an extensive background search on the suspect by utilizing departmental records, state computer records, and other police agency records,” and that from that information he had concluded that Bowen resided at 2234 East 120th Street.
The affidavit requested that the search warrant be endorsed for night service because “information provided by the victim and the cal-gang data base” indicated that Bowen had “gang ties to the Mona Park Crip gang” and that “night service would provide an added element of safety to the community as well as for the deputy personnel serving the warrant.” The affidavit concluded by noting that Messerschmidt “believe[d] that the items sought” would be in Bowen’s possession and that “recovery of the weapon could be invaluable in the successful prosecution of the suspect involved in this case, and the curtailment of further crimes being committed.”
Messerschmidt submitted the warrants to his supervisors–Sergeant Lawrence and Lieutenant Ornales–for review. Deputy District Attorney Janet Wilson also reviewed the materials and initialed the search warrant, indicating that she agreed with Messerschmidt’s assessment of probable cause. Finally, Messerschmidt submitted the warrants to a magistrate. The magistrate approved the warrants and authorized night service.
The search warrant was served two days later by a team of officers that included Messerschmidt and Lawrence. Sheriff’s deputies forced open the front door of 2234 East 120th Street and encountered Augusta Millender–a woman in her seventies–and Millender’s daughter and grandson. As instructed by the police, the Millenders went outside while the residence was secured but remained in the living room while the search was conducted. Bowen was not found in the residence. The search did, however, result in the seizure of Augusta Millender’s shotgun, a California Social Services letter addressed to Bowen, and a box of .45-caliber ammunition.
Bowen was arrested two weeks later after Messerschmidt found him hiding under a bed in a motel room.
The Millenders filed a lawsuit against Detective Messerschmidt arguing that his search warrant seeking all guns and gang related material was overbroad since they were investigating a domestic violence offense involving a sawed-off shot gun with pistol grips. The lower court agreed with the Millenders arguments that one, Detective Messerschmidt only had probable cause to search for the weapon involved in the assault on Kelly and two, since there was no evidence that the crime was gang related, the officer did not have probable cause to search for gang related evidence. The United States Court of Appeals for the Ninth Circuit in an “en banc” decision agreed with the federal trial court. The Court of Appeals also held that the officers were not entitled to qualified immunity because any officer in their position would have known that probable cause did not exist beyond the gun used in the assault and that there was no evidence of a connection between the domestic violence investigation and drugs. Detective Messerschmidt appealed the Ninth Circuit’s decision to the United States Supreme Court.
In overturning the Ninth Circuit’s opinion the Court reasoned:
Qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments,” and “protects all but the plainly incompetent” or those who knowingly violate the law…Where the alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner or, as we have sometimes put it, in “objective good faith”… Nonetheless, under our precedents, the fact that a neutral magistrate has issued a warrant authorizing the allegedly unconstitutional search or seizure does not end the inquiry into objective reasonableness. Rather, we have recognized an exception allowing suit when “it is obvious that no reasonably competent officer would have concluded that a warrant should issue”…The “shield of immunity” otherwise conferred by the warrant, will be lost, for example, where the warrant was “based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”… Our precedents make clear, however, that the threshold for establishing this exception is a high one, and it should be. As we explained in Leon, “[i]n the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination” because “[i]t is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment.”… It is a sound presumption that the magistrate is more qualified than the police officer to make a probable cause determination, and it goes without saying that where a magistrate acts mistakenly in issuing a warrant but within the range of professional competence of a magistrate, the officer who requested the warrant cannot be held liable… [cites omitted]
The Court also noted that the fact that the Detective Messersschmidt had the affidavit reviewed by his superior officers as well as by a prosecutor was also relevant to a determination as to his objective reasonableness.
Upon applying the facts to these rules, the Court concluded that a reasonable officer could have concluded that additional guns as well as gang related material would be found at the location and that an objectively reasonable officer may conclude that it was objectively reasonable to search for such items based on the information provided.
An officer who obtains a warrant has a high degree of protection from liability with respect to any argument that the search was not supported by probable cause.
A person bringing a lawsuit against an officer where the officer has sought a warrant has a high bar to get over in order to prevail against the officer.
It is only where the officer is plainly incompetent and where the person bringing the lawsuit can establish that an objectively reasonable officer would know that the affidavit did not set out the necessary probable cause.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] Messerschmidt v. Millender, ___U.S.___; 2012 U.S. LEXIS 1687 (2012).
[ii] Malley v. Briggs, 475 U.S. 335 (1986).