SCOTUS Stretches Probable Cause Standard to Find Qualified Immunity



This week, SCOTUS decided Messerschmidt v. Millender, which greatly stretched the probable cause standard. This is not a good case for those seeking to limit state power.

The facts are pretty simple. Shelly Kelly was attacked by her former boyfriend Jerry Ray Bowen. Kelly reported the attack to the police and stated that Bowen assaulted her, threatened to kill her, and fired on her vehicle with a sawed-off shotgun. Cops got an arrest warrant for Bowen and a search warrant for the house of his foster mother (Millender). Kelly had told police that Bowen lived with the foster mother and that he was a gang member. The search warrant authorized the police to search for many items including firearms and gang-related evidence. The police executed the warrant and found a firearm and ammo belonging to Millender. They did not find Bowen’s saw-off shotgun at the house. Millender filed a civil rights action against the officers and sought damages from the officers for an unreasonable search and seizure. Both the district court and the court of appeals held that the police officers were not entitled to qualified immunity. This immunity is available when the conduct of an official does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In this case, the lower courts concluded that even though a magistrate signed the search warrant, a reasonable police officer would not have believed that probable cause to search truly existed.

In my opinion, there was no probable cause for this search. Other than Kelly’s statement that Bowen lived with Millender, there was never any evidence that the sawed-off shotgun was ever seen at the Millerder residence or that there was evidence of gang activity there. It seems that the warrant was issued on the fact that Bowen was a “bad person” and that bad people keep illegal weapons and gang paraphernalia in their homes. No magistrate should have signed this warrant and no cop should have thought that the warrant was valid. The officers should not be entitled to qualified immunity. (Keep in mind there was good evidence for the arrest warrant to have issued, but the search warrant is a different story).

Well, that’s not how the Supreme Court saw it. According to Chief Justice Roberts, given the facts, it would not have been “entirely unreasonable” for an officer to believe, in the particular circumstances of this case, that there was probable cause to search for all firearms and firearm-related materials.

A reasonable officer also could believe that seizure of the 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) (West 2011), and the warrant application submitted by the officers specifically referenced this provision as a basis for the search. App. 48. Bowen had already attempted to murder Kelly once with a firearm, and had yelled “I’ll kill you” as she tried to escape from him. Id., at 56–57. A reasonable officer could conclude that Bowen would make another attempt on Kelly’s life and that he possessed other firearms “with the intent to use them” to that end.

I’m not buying it, but so rules the court.

But the real issue I have is the Court’s treatment of the gang-related material listed in the search warrant. “A reasonable officer could certainly view Bowen’s attack as motivated not by the souring of his romantic relationship with Kelly but instead by a desire to prevent her from disclosing details of his gang activity to the police. She was, after all, no longer linked with him as a girlfriend; he had assaulted her in the past; and she had indeed called the cops on him.” This seems to go to more speculation than anything. This case started as a domestic case where Kelly dumped Bowen and moved out of the apartment. She called the police initially to help her remove belongings, and Bowen became angry with her.

Here’s the real kicker:

In addition, a reasonable officer could believe that evidence demonstrating Bowen’s membership in a gang might prove helpful in impeaching Bowen or rebutting various defenses he could raise at trial. For example, evidence that Bowen had ties to a gang that uses guns such as the one he used to assault Kelly would certainly be relevant to establish that he had familiarity with or access to this type of weapon.

I have never heard of “impeachment evidence” being the proper subject of a search warrant. A magistrate is authorized to sign a search warrant so the police can locate evidence of a crime or fruits of a crime. Under the Court’s reasoning, any material that might, say, call into question a defendant’s credibility is reasonable to include in a warrant–or at least a reasonable cop would think you could look for it. And all this before you have any idea if the defendant will take the stand or what defenses he might raise to the charge?

This opinion is a real stretch of the probable cause standard to help out the cops. No reasonable officer should have thought there were any grounds to search the Millender house. The broad language found in this opinion endangers valuable constitutional rights guaranteed in the 4th Amendment.

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