CA6: Qualified immunity for use of force during drug and firearms search and scope of search

Officers pointing of weapons and use of physical force during execution of a drug and firearms search warrant was not subject to qualified immunity. The warrant was supported with probable cause. The claim of unreasonableness of the search itself was essentially waived in the district court, and the court would not undertake it on appeal. The officers were also entitled to qualified immunity on the scope of seizure based on the scope of the search warrant. Marcilis v. Twp. of Redford, 693 F.3d 589(6th Cir. 2012)*:

The money, the jewelry, and the personal effects, are all valuable items or proceeds which fall within the scope of the warrant. See, e.g., United States v. Blair, 214 F.3d 690, 697 (6th Cir. 2000) (finding that vehicles, jewelry, and money are “items related to narcotics transactions or the proceeds of narcotics transactions”). Likewise, the police officers may have reasonably believed that any bills seized and photographs taken, as well as the weapons permit, marriage license, and property deed, contained information reasonably related to the sale and the possession of narcotics, possession and ownership of firearms, the depiction of controlled substances and proceeds from controlled substances, and the ownership of the searched homes. See United States v. Savoy, 280 F. App’x 504, 511 (6th Cir. 2008). Moreover, a search does not become invalid merely because some items not covered by a warrant are seized. Rather, an otherwise valid search becomes an impermissible general search only where the searching officers demonstrate a flagrant disregard for the limitations of a search warrant. United States v. Lambert, 771 F.2d 83, 93 (6th Cir. 1985). Though the officers might have been mistaken as to whether the photographs seized were within the scope of the warrant, we cannot conclude that it was a “flagrant disregard” of the warrant limitation to seize photographs pursuant to a warrant that expressly provided for the seizure of “all photographs … depict[ing] controlled substances and/or proceeds from controlled substances.” See, e.g., United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir. 1988) (finding that the improper seizure of 667 pieces of property grossly exceeded the scope of the warrant and required suppression of all evidence under the warrant). We find that the district court correctly concluded that police officers are due qualified immunity on this claim.