Judicial oversight in failing to initial part of the place to be searched did not void search

The issuing judge by oversight failed to initial the place to be searched on the warrant while initialing elsewhere. This did not mean that the warrant was defective. The affidavit showed probable cause to search the place described without the initials being present, and the judge told the officer on signing the warrant that the warrant was “fine.” United States v. Hurd, 499 F.3d 963 (9th Cir. 2007):

When Officer Clifton presented this affidavit and the search warrant to Judge Kurshner at her home, the judge placed Officer Clifton under oath and reviewed the affidavit. She then instructed Officer Clifton to sign the affidavit and she also signed it herself. Judge Kurshner did not ask any questions about the information in the affidavit or the request to search Hurd, his residence, and his vehicle. She did not give any indication that probable cause only supported part of the requested search warrant, nor did she give any indication that there were any other problems with the warrant request. To the contrary, Judge Kurshner told Officer Clifton that “his warrant request was ‘fine’ (or words to that effect)” before signing the search warrant itself. Judge Kurshner signed the warrant promptly after reviewing and signing Officer Clifton’s affidavit, and that affidavit indisputably described the probable cause for searching Hurd’s residence. It is likely that if Judge Kurshner did not intend to authorize the search of Hurd’s residence, she would have done something to call Officer Clifton’s attention to whatever deficiency she found in the warrant request and she would not have simply indicated her approval of the warrant. An objective assessment of the circumstances surrounding the issuance of the warrant thus supports the conclusion that Judge Kurshner authorized the search of Hurd’s residence along with the search of his person and his vehicle.

Comment: This is one of those search warrant “defects” that falls in the category of “where’s the prejudice by the oversight?” If there isn’t any, the search under the warrant normally should not be suppressed. Officers and judges are allowed slight mistakes without jeopardizing the search.

The Third Circuit clarifies qualified immunity review after previously reversing summary judgment in an excessive force shooting case because of factual questions remaining then. Now, after trial resulted in a verdict for the officers (the plaintiff being an off-duty police officer), the court affirms finding that qualified immunity was a question of law for the court, not for a jury, which the law used to be. Curley v. Klem, 499 F.3d 199 (3d Cir. 2007):

Fundamental fairness dictates a totality-of-the-circumstances review, since the test for reasonableness “is not capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559 (1979). It depends on all of the chaotic details that emerge in real time in real life. 13 Yet the method that we and many other courts have taken to address the mixed legal and factual questions posed by the Saucier test cannot easily, perhaps cannot ever, capture those circumstances in their totality. When one picks and chooses a few questions to pose to a jury to ferret out historical facts, staying away from asking the broader question of what constitutes reasonable behavior under those facts, one cannot help but focus attention on some events to the diminution or exclusion of others. In short, a totality-of-the-circumstances test is replaced by a test focusing on those few circumstances featured in the questions a court is able and willing to articulate.

. . .

Confusion between the threshold constitutional inquiry and the immunity inquiry is also understandable given the difficulty courts have had in elucidating the difference between those two analytical steps. At the risk of understating the challenges inherent in a qualified immunity analysis, we think the most helpful approach is to consider the constitutional question as being whether the officer made a reasonable mistake of fact, while the qualified immunity question is whether the officer was reasonably mistaken about the state of the law.