In Messerschmidt v. Millender, 2012 U.S. LEXIS 1687 (February 22, 2012), the Supreme Court held that the Ninth Circuit en banc erred in finding officers who obtained a search warrant that might have been overbroad were still entitled to qualified immunity because the officers prepared the application and warrant, cleared it with a superior and a prosecutor, and then a magistrate signed off on it. It was not so lacking in probable cause that the good faith exception would not apply or qualified immunity would not protect them. The officers were not, in the words of Malley v. Briggs, “plainly incompetent.” Essentially, they’re saying the warrant was good after all under Groh v. Ramirez. The Syllabus, omitting the facts:
(a) Qualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U. S. 223, 231. 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 in “objective good faith.” United States v. Leon, 468 U. S. 897, 922–923. Nonetheless, that fact does not end the inquiry into objective reasonableness. The Court has recognized an exception allowing suit when “it is obvious that no reasonably competent officer would have concluded that a warrant should issue.” Malley v. Briggs, 475 U. S. 335, 341. The “shield of immunity” otherwise conferred by the warrant, id., at 345, 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.” Leon, 468 U. S., at 923. The threshold for establishing this exception is high. “[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.” Leon, supra, at 921. Pp.8−10.
(b) This case does not fall within that narrow exception. It would not be entirely unreasonable for an officer to believe that there was probable cause to search for all firearms and firearm-related materials. Under the circumstances set forth in the warrant, an officer could reasonably conclude that there was a “fair probability” that the sawed-off shotgun was not the only firearm Bowen owned, Illinois v. Gates, 462 U. S. 213, 238, and that Bowen’s sawed-off shotgun was illegal. Cf. 26 U.S.C. §§ 5845(a), 5861(d). Given Bowen’s possession of one illegal gun, his gang membership, willingness to use the gun to kill someone, and concern about the police, it would not be unreasonable for an officer to conclude that Bowen owned other illegal guns. An officer also could reasonably believe that seizure of firearms was necessary to prevent further assaults on Kelly. California law allows a magistrate to issue a search warrant for items “in the possession of any person with the intent to use them as a means of committing a public offense,” Cal. Penal Code Ann. §1524(a)(3), and the warrant application submitted by the officers specifically referenced this provision as a basis for the search. Pp. 10–12.
(c) Regarding the warrant’s authorization to search for gang related materials, a reasonable officer could view Bowen’s attack as motivated not by the souring of his romantic relationship with Kelly but by a desire to prevent her from disclosing details of his gang activity to the police. It would therefore not be unreasonable—based on the facts set out in the affidavit—for an officer to believe that evidence of Bowen’s gang affiliation would prove helpful in prosecuting him for the attack on Kelly, in supporting additional, related charges against Bowen for the assault, or in impeaching Bowen or rebutting his defenses. Moreover, even if this were merely a domestic dispute, a reasonable officer could still conclude that gang paraphernalia found at the Millenders’ residence could demonstrate Bowen’s control over the premises or his connection to other evidence found there. Pp. 12−16.
(d) The fact that the officers sought and obtained approval of the warrant application from a superior and a deputy district attorney before submitting it to the magistrate provides further support for the conclusion that an officer could reasonably have believed that the scope of the warrant was supported by probable cause. A contrary conclusion would mean not only that Messerschmidt and Lawrence were “plainly incompetent” in concluding that the warrant was supported by probable cause, Malley, supra, at 341, but that their supervisor, the deputy district attorney, and the magistrate were as well. Pp. 16−18.
(e) In holding that the warrant in this case was so obviously defective that no reasonable officer could have believed it to be valid, the court below erred in relying on Groh v. Ramirez, 540 U. S. 551. There, officers who carried out a warrant-approved search were not entitled to qualified immunity because the warrant failed to describe any of the items to be seized and “even a cursory reading of the warrant” would have revealed this defect. Id., at 557. Here, in contrast, any arguable defect would have become apparent only upon a close parsing of the warrant application, and a comparison of the supporting affidavit to the terms of the warrant to determine whether the affidavit established probable cause to search for all the items listed in the warrant. Unlike in Groh, any error here would not be one that “just a simple glance” would have revealed. Id. at 564. Pp. 18−19.
620 F. 3d 1016, reversed.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. BREYER, J., filed a concurring opinion. KAGAN, J., filed an opinion concurring in part and dissenting in part. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.
One could see this one coming. The Ninth Circuit to me plainly contradicted Groh, and the warrant was going to ultimately be upheld. As I’ve said here and in the treatise before, if the good faith exception would save the warrant, the officer would have qualified immunity, and vice versa. They work hand in glove. The qualified immunity cases were used to create the good faith exception.
