CA5: Search of wrong house leads to liability: “An officer who makes no reasonable effort to correctly identify the place to be searched does not get immunity merely because someone else was leading the search.”

Sloppy police work leading to a search of the wrong house on a warrant leads to loss of qualified immunity: “An officer who makes no reasonable effort to correctly identify the place to be searched does not get immunity merely because someone else was leading the search.” They claimed qualified immunity that there was no constitutional requirement that only the right house be searched. If the facts were more hazy, maybe, but they’re not. He searched the wrong house without even asking which was the right one. The claim of exigency for searching the wrong house also fails on the facts. Gerhart v. McLendon, 2017 U.S. App. LEXIS 21152 (5th Cir. Oct. 25, 2017):

McLendon counters that there is no binding precedent in which this court or the Supreme Court has held that a similarly situated officer acting under similar circumstances violated the Fourth Amendment. The Supreme Court has rejected a rigid requirement that previous cases be “materially similar” in order for the law to be clearly established. See Hope, 536 U.S. at 739-41. We need not immunize an officer from suit for an obvious violation simply because no case has held that the officer’s precise conduct was unlawful. See Pierce, 117 F.3d at 882. The law was clear that McLendon had to make “a reasonable effort to ascertain and identify the place intended to be searched.” Garrison, 480 U.S. at 88. McLendon is right, of course, that we have not exhaustively and precisely defined the contours of what constitutes a “reasonable effort.” Whatever the precise contours of that phrase, it surely means that officers must make an effort to be sure they search the right residence in order to receive the protections of qualified immunity. Compare Rogers, 271 F. App’x at 435 (holding that officers were entitled to immunity where they “made an initial surveillance of the house” and erred in part because a car initially parked in front of the target house had moved to the front of plaintiffs’ house by the time of the search), with Guerra v. Sutton, 783 F.2d 1371, 1375 (9th Cir. 1986) (holding that officers participating in search were not entitled to qualified immunity because they were “not given an advance briefing” on the search and did not “inquire as to the nature and scope of the warrant”). McLendon’s conduct does not fall at the hazy borders of the law. The district court found that he was totally unaware of key operational details and did not even bother to ask. On this record, it appears that he did little more than show up.

McLendon argues that the cases establish only that officers leading a search must make such efforts. We cannot endorse such a confined view of the precedent. To the contrary, although the cases impose heightened obligations on leaders, they make clear that officers who participate in searches still have an obligation to make reasonable efforts to correctly identify the place to be searched. See Hunt, 301 F. App’x at 362 n.8 (“What’s reasonable for a particular officer depends on his role in the search.” (quoting Ramirez v. Butte-Silver Bow Cnty., 298 F.3d 1022, 1027 (9th Cir. 2002), overruled on other grounds by United States v. Grubbs, 547 U.S. 90 (2006))); cf. Hartsfield, 50 F.3d at 956 (holding that officers participating in search were entitled to qualified immunity because “nothing in the record indicate[d] that these officers acted unreasonably in following [the other officer's] lead, or that they knew or should have known that their conduct might result in a [constitutional] violation”). An officer who makes no reasonable effort to correctly identify the place to be searched does not get immunity merely because someone else was leading the search.

Accordingly, McLendon violated clearly established law by failing to make any effort to ensure that he could correctly identify the target residence.

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