CA8: A 1 in 11 chance homeowner had CP on computer was enough for qualified immunity; search turned up nothing and he lost job then home

Child pornography was able to be downloaded from plaintiff’s IP address, so Minot police got a search warrant for plaintiff’s address, which appeared to be a single family dwelling. When they got there, however, they learned that 11 people lived there as subletting tenants, and all had access to the wireless internet. No child pornography was found there. They went to defendant’s work and interrogated him and to seek to search his computer in his car in the parking lot. They got a search warrant for his computer and nothing was found. He was fired from his job and was forced to move out of his home. The officers get qualified immunity because there’s no allegation of deliberate falsehood. The omission of information that there was no direct connection between him and child pornography isn’t a misleading omission. Doe v. Olson, 2017 U.S. App. LEXIS 9086 (8th Cir. May 25, 2017). Dissent:

Because I do not believe the officers are entitled to qualified immunity for the search of Doe’s room or the search and seizure of his vehicle and computer, I respectfully dissent. Doe’s challenge to the search of his room presents two separate constitutional issues, “one concerning the validity of the warrant and the other concerning the reasonableness of the manner in which it was executed.” Maryland v. Garrison, 480 U.S. 79, 84 (1987). Even if the warrant was sufficiently particular to be valid, I believe that its execution violated Doe’s clearly established constitutional rights.

Federal courts have consistently held that if officers obtain a warrant to search a building containing a single residential unit, and discover or reasonably should discover during the execution of the warrant that the building actually contains multiple residential units, they are required to limit their search to the unit or units for which they have specific probable cause. E.g., id. at 86-87; United States v. Williams, 917 F.2d 1088, 1092 (8th Cir. 1990); United States v. Geraldo, 271 F.3d 1112, 1118 (D.C. Cir. 2001); Jacobs v. Chicago, 215 F.3d 758, 768-69 (7th Cir. 2000). Here, once the officers arrived at the building named in the warrant, they realized it had been subdivided into separate units, with as many as eleven tenants and subtenants. All eleven could access the building’s wireless internet, and the officers had no information leading them to any particular unit, tenant, or device. Therefore, the chance of finding child pornography in any single residential unit—including Doe’s rented room—was substantially less than the “fair probability” required for probable cause, and the execution of the warrant was objectively unreasonable.

I also believe that the search and seizure of Doe’s vehicle and computer violated his clearly established constitutional rights. The only evidence suggesting that Doe might be the person who downloaded the child pornography was that he was one of at least eleven people who could access his building’s wireless internet, and that he had a laptop computer in his vehicle. This evidence falls far short of establishing probable cause, and “no reasonably competent officer would have concluded that a warrant should issue.” Messerschmidt, 565 U.S. at 547 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Because the search of Doe’s vehicle and computer was not supported by probable cause, I believe the two-and-a-half-hour-long detention of his vehicle and computer was likewise unlawful. See United States v. Place, 462 U.S. 696, 709-10 (1983) (concluding that a ninety-minute detention of luggage that was not supported by probable cause violated the Fourth Amendment). For these reasons, I believe the officers are not entitled to qualified immunity, and would reverse the district court’s grant of summary judgment.

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