Messerschmidt v. Millender , 132 S. Ct. 1235 ( 2012 )

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MESSERSCHMIDT ET AL. v. MILLENDER, EXECUTOR OF
ESTATE OF MILLENDER, DECEASED, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 10–704. Argued December 5, 2011—Decided February 22, 2012
Shelly Kelly was afraid that she would be attacked by her boyfriend,
Jerry Ray Bowen, while she moved out of her apartment. She there-
fore requested police protection. Two officers arrived, but they were
called away to an emergency. As soon as the officers left, Bowen
showed up at the apartment, yelled “I told you never to call the cops
on me bitch!” and attacked Kelly, attempting to throw her over a se-
cond-story landing. After Kelly escaped to her car, Bowen pointed a
sawed-off shotgun at her and threatened to kill her if she tried to
leave. Kelly nonetheless sped away as Bowen fired five shots at the
car, blowing out one of its tires.
Kelly later met with Detective Curt Messerschmidt to discuss the
incident. She described the attack in detail, mentioned that Bowen
had previously assaulted her, that he had ties to the Mona Park
Crips gang, and that he might be staying at the home of his former
foster mother, Augusta Millender. Following this conversation, Mes-
serschmidt conducted a detailed investigation, during which he con-
firmed Bowen’s connection to the Millenders’ home, verified his
membership in two gangs, and learned that Bowen had been arrested
and convicted for numerous violent and firearm-related offenses.
Based on this investigation, Messerschmidt drafted an application
for a warrant authorizing a search of the Millenders’ home for all
firearms and ammunition, as well as evidence indicating gang
membership.
Messerschmidt included two affidavits in the warrant application.
The first detailed his extensive law enforcement experience and his
specialized training in gang-related crimes. The second, expressly in-
corporated into the search warrant, described the incident and ex-
2 MESSERSCHMIDT v. MILLENDER
Syllabus
plained why Messerschmidt believed there was probable cause for the
search. It also requested that the warrant be endorsed for night ser-
vice because of Bowen’s gang ties. Before submitting the application
to a magistrate for approval, Messerschmidt had it reviewed by his
supervisor, Sergeant Robert Lawrence, as well as a police lieutenant
and a deputy district attorney. Messerschmidt then submitted the
application to a magistrate, who issued the warrant. The ensuing
search uncovered only Millender’s shotgun, a California Social Ser-
vices letter addressed to Bowen, and a box of .45-caliber ammunition.
The Millenders filed an action under 42 U. S. C. §1983 against pe-
titioners Messerschmidt and Lawrence, alleging that the officers had
subjected them to an unreasonable search in violation of the Fourth
Amendment. The District Court granted summary judgment to the
Millenders, concluding that the firearm and gang-material aspects of
the search warrant were overbroad and that the officers were not en-
titled to qualified immunity from damages. The Ninth Circuit, sit-
ting en banc, affirmed the denial of qualified immunity. The court
held that the warrant’s authorization was unconstitutionally over-
broad because the affidavits and warrant failed to establish probable
cause that the broad categories of firearms, firearm-related material,
and gang-related material were contraband or evidence of a crime,
and that a reasonable officer would have been aware of the warrant’s
deficiency.
Held: The officers are entitled to qualified immunity. Pp. 8−19.
(a) Qualified immunity “protects government officials ‘from liability
for civil damages insofar as their conduct does not violate clearly es-
tablished 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 rec-
ognized an exception allowing suit when “it is obvious that no rea-
sonably 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 prob-
able-cause determination” because “[i]t is the magistrate’s responsi-
Cite as: 565 U. S. ____ (2012) 3
Syllabus
bility to determine whether the officer’s allegations establish proba-
ble 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 materi-
als. 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 il-
legal. 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 unreason-
able 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 pro-
vision 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 ac-
tivity to the police. It would therefore not be unreasonable—based on
the facts set out in the affidavit—for an officer to believe that evi-
dence 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 sup-
ported by probable cause, Malley, supra, at 341, but that their super-
4 MESSERSCHMIDT v. MILLENDER
Syllabus
visor, 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 defec-
tive 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 war-
rant” 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 support-
ing affidavit to the terms of the warrant to determine whether the af-
fidavit 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.
Cite as: 565 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–704
_________________
CURT MESSERSCHMIDT, ET AL., PETITIONERS v.
BRENDA MILLENDER, AS EXECUTOR OF THE
ESTATE OF AUGUSTA MILLENDER,
DECEASED, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[February 22, 2012]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Petitioner police officers conducted a search of respond-
ents’ home pursuant to a warrant issued by a neutral
magistrate. The warrant authorized a search for all guns
and gang-related material, in connection with the investi-
gation of a known gang member for shooting at his ex-
girlfriend with a pistol-gripped sawed-off shotgun, because
she had “call[ed] the cops” on him. App. 56. Respondents
brought an action seeking to hold the officers personally
liable under 42 U. S. C. §1983, alleging that the search
violated their Fourth Amendment rights because there
was not sufficient probable cause to believe the items
sought were evidence of a crime. In particular, respond-
ents argued that there was no basis to search for all
guns simply because the suspect owned and had used a
sawed-off shotgun, and no reason to search for gang mate-
rial because the shooting at the ex-girlfriend for “call[ing]
the cops” was solely a domestic dispute. The Court of
2 MESSERSCHMIDT v. MILLENDER
Opinion of the Court
Appeals for the Ninth Circuit held that the warrant was
invalid, and that the officers were not entitled to immu-
nity from personal liability because this invalidity was so
obvious that any reasonable officer would have recognized
it, despite the magistrate’s approval. We disagree and
reverse.
I
A
Shelly Kelly decided to break off her romantic relation-
ship with Jerry Ray Bowen and move out of her apart-
ment, to which Bowen had a key. Kelly feared an attack
from Bowen, who had previously assaulted her and had
been convicted of multiple violent felonies. She therefore
asked officers from the Los Angeles County Sheriff’s De-
partment to accompany her while she gathered her things.
Deputies from the Sheriff ’s Department came to assist
Kelly but were called away to respond to an emergency
before the move was complete.
As soon as the officers left, an enraged Bowen appeared
at the bottom of the stairs to the apartment, yelling “I told
you never to call the cops on me bitch!” App. 39, 56.
Bowen then ran up the stairs to Kelly, grabbed her by her
shirt, and tried to throw her over the railing of the second-
story landing. When Kelly successfully resisted, Bowen
bit her on the shoulder and attempted to drag her inside
the apartment by her hair. Kelly again managed to escape
Bowen’s grasp, and ran to her car. By that time, Bowen
had retrieved a black sawed-off shotgun with a pistol grip.
He ran in front of Kelly’s car, pointed the shotgun at her,
and told Kelly that if she tried to leave he would kill her.
Kelly leaned over, fully depressed the gas pedal, and sped
away. Bowen fired at the car a total of five times, blowing
out the car’s left front tire in the process, but Kelly man-
aged to escape.
Kelly quickly located police officers and reported the
Cite as: 565 U. S. ____ (2012) 3
Opinion of the Court
assault. She told the police what had happened—that
Bowen had attacked her after becoming “angry because
she had called the Sheriff’s Department”—and she men-
tioned that Bowen was “an active member of the ‘Mona
Park Crips,’ ” a local street gang. Id., at 39. Kelly also
provided the officers with photographs of Bowen.
Detective Curt Messerschmidt was assigned to investi-
gate the incident. Messerschmidt met with Kelly to obtain
details of the assault and information about Bowen. Kelly
described the attack and informed Messerschmidt that she
thought Bowen was staying at his foster mother’s home
at 2234 East 120th Street. Kelly also informed Messer-
schmidt of Bowen’s previous assaults on her and of his
gang ties.
Messerschmidt then conducted a background check on
Bowen by consulting police records, California Depart-
ment of Motor Vehicles records, and the “cal-gang” data-
base. Based on this research, Messerschmidt confirmed
Bowen’s connection to the 2234 East 120th Street address.
He also confirmed that Bowen was an “active” member of
the Mona Park Crips and a “secondary” member of the
Dodge City Crips. Id., at 64. Finally, Messerschmidt
learned that Bowen had been arrested and convicted for
numerous violent and firearm-related offenses. Indeed, at
the time of the investigation, Bowen’s “rapsheet” spanned
over 17 printed pages, and indicated that he had been
arrested at least 31 times. Nine of these arrests were for
firearms offenses and six were for violent crimes, includ-
ing three arrests for assault with a deadly weapon (fire-
arm). Id., at 72–81.
Messerschmidt prepared two warrants: one to authorize
Bowen’s arrest and one to authorize the search of 2234
East 120th Street. An attachment to the search warrant
described the property that would be the object of the
search:
4 MESSERSCHMIDT v. MILLENDER
Opinion of the Court
“All handguns, rifles, or shotguns of any caliber, or
any firearms capable of firing ammunition, or fire-
arms or devices modified or designed to allow it [sic]
to fire ammunition. All caliber of ammunition, miscel-
laneous gun parts, gun cleaning kits, holsters which
could hold or have held any caliber handgun being
sought. Any receipts or paperwork, showing the pur-
chase, ownership, or possession of the handguns being
sought. Any firearm for which there is no proof of
ownership. Any firearm capable of firing or cham-
bered to fire any caliber ammunition.
“Articles of evidence showing street gang membership
or affiliation with any Street Gang to include but not
limited to any reference to ‘Mona Park Crips’, includ-
ing writings or graffiti depicting gang membership,
activity or identity. Articles of personal property
tending to establish the identity of person [sic] in con-
trol of the premise or premises. Any photographs or
photograph albums depicting persons, vehicles, weap-
ons or locations, which may appear relevant to gang
membership, or which may depict the item being
sought and or believed to be evidence in the case being
investigated on this warrant, or which may depict ev-
idence of criminal activity. Additionally to include
any gang indicia that would establish the persons be-
ing sought in this warrant, affiliation or membership
with the ‘Mona Park Crips’ street gang.” Id., at 52.
Two affidavits accompanied Messerschmidt’s warrant ap-
plications. The first affidavit described Messerschmidt’s
extensive law enforcement experience, including that he
had served as a peace officer for 14 years, that he was
then assigned to a “specialized unit” “investigating gang
related crimes and arresting gang members for various
violations of the law,” that he had been involved in “hun-
Cite as: 565 U. S. ____ (2012) 5
Opinion of the Court
dreds of gang related incidents, contacts, and or arrests”
during his time on the force, and that he had “received
specialized training in the field of gang related crimes”
and training in “gang related shootings.” Id., at 53–54.
The second affidavit—expressly incorporated into the
search warrant—explained why Messerschmidt believed
there was sufficient probable cause to support the war-
rant. That affidavit described the facts of the incident
involving Kelly and Bowen in great detail, including the
weapon used in the assault. The affidavit recounted that
Kelly had identified Bowen as the assailant and that she
thought Bowen might be found at 2234 East 120th Street.
It also reported that Messerschmidt had “conducted an
extensive background search on the suspect by utilizing
departmental records, state computer records, and other
police agency records,” and that from that information he
had concluded that Bowen resided at 2234 East 120th
Street. Id., at 58.
The affidavit requested that the search warrant be
endorsed for night service because “information provided
by the victim and the cal-gang data base” indicated that
Bowen had “gang ties to the Mona Park Crip gang” and
that “night service would provide an added element of
safety to the community as well as for the deputy person-
nel serving the warrant.” Id., at 59. The affidavit con-
cluded by noting that Messerschmidt “believe[d] that the
items sought” would be in Bowen’s possession and that
“recovery of the weapon could be invaluable in the success-
ful prosecution of the suspect involved in this case, and
the curtailment of further crimes being committed.” Ibid.Messerschmidt submitted the warrants to his super-
visors—Sergeant Lawrence and Lieutenant Ornales—for
review. Deputy District Attorney Janet Wilson also re-
viewed the materials and initialed the search warrant,
indicating that she agreed with Messerschmidt’s assess-
ment of probable cause. Id., at 27, 47. Finally, Messer-
6 MESSERSCHMIDT v. MILLENDER
Opinion of the Court
schmidt submitted the warrants to a magistrate. The
magistrate approved the warrants and authorized night
service.
The search warrant was served two days later by a team
of officers that included Messerschmidt and Lawrence.
Sheriff’s deputies forced open the front door of 2234 East
120th Street and encountered Augusta Millender—a
woman in her seventies—and Millender’s daughter and
grandson. As instructed by the police, the Millenders
went outside while the residence was secured but re-
mained in the living room while the search was conducted.
Bowen was not found in the residence. The search did,
however, result in the seizure of Augusta Millender’s
shotgun, a California Social Services letter addressed to
Bowen, and a box of .45-caliber ammunition.
Bowen was arrested two weeks later after Messer-
schmidt found him hiding under a bed in a motel room.
B
The Millenders filed suit in Federal District Court
against the County of Los Angeles, the sheriff ’s depart-
ment, the sheriff, and a number of individual officers,
including Messerschmidt and Lawrence. The complaint
alleged, as relevant here, that the search warrant was
invalid under the Fourth Amendment. It sought damages
from Messerschmidt and Lawrence, among others.
The parties filed cross motions for summary judgment
on the validity of the search warrant. The District Court
found the warrant defective in two respects. The District
Court concluded that the warrant’s authorization to
search for firearms was unconstitutionally overbroad
because the “crime specified here was a physical assault
with a very specific weapon”—a black sawed-off shotgun
with a pistol grip—negating any need to “search for all
firearms.” Millender v. County of Los Angeles, Civ. No.
05–2298 (CD Cal., Mar. 15, 2007), App. to Pet. for Cert.
Cite as: 565 U. S. ____ (2012) 7
Opinion of the Court
106, 157, 2007 WL 7589200, *21. The court also found
the warrant overbroad with respect to the search for gang-
related materials, because there “was no evidence that the
crime at issue was gang-related.” App. to Pet. for Cert.
157. As a result, the District Court granted summary
judgment to the Millenders on their constitutional chal-
lenges to the firearm and gang material aspects of the
search warrant. Id., at 160. The District Court also re-
jected the officers’ claim that they were entitled to quali-
fied immunity from damages. Id., at 171.
Messerschmidt and Lawrence appealed, and a divided
panel of the Court of Appeals for the Ninth Circuit re-
versed the District Court’s denial of qualified immunity.
564 F. 3d 1143 (2009). The court held that the officers
were entitled to qualified immunity because “they reason-
ably relied on the approval of the warrant by a deputy
district attorney and a judge.” Id., at 1145.
The Court of Appeals granted rehearing en banc and
affirmed the District Court’s denial of qualified immunity.
620 F. 3d 1016 (CA9 2010). The en banc court concluded
that the warrant’s authorization was unconstitutionally
overbroad because the affidavit and the warrant failed to
“establish[ ] probable cause that the broad categories of
firearms, firearm-related material, and gang-related
material described in the warrant were contraband or
evidence of a crime.” Id., at 1033. In the en banc court’s
view, “the deputies had probable cause to search for a
single, identified weapon . . . . They had no probable cause
to search for the broad class of firearms and firearm-
related materials described in the warrant.” Id., at 1027.
In addition, “[b]ecause the deputies failed to establish any
link between gang-related materials and a crime, the
warrant authorizing the search and seizure of all gang-
related evidence [was] likewise invalid.” Id., at 1031.
Concluding that “a reasonable officer in the deputies’
position would have been well aware of this deficiency,”
8 MESSERSCHMIDT v. MILLENDER
Opinion of the Court
the en banc court held that the officers were not entitled to
qualified immunity. Id., at 1033–1035.
There were two separate dissenting opinions. Judge
Callahan determined that “the officers had probable cause
to search for and seize any firearms in the home in which
Bowen, a gang member and felon, was thought to reside.”
Id., at 1036. She also concluded that “the officers reason-
ably relied on their superiors, the district attorney, and
the magistrate to correct” any overbreadth in the warrant,
and that the officers were entitled to qualified immunity
because their actions were not objectively unreasonable.
Id., at 1044, 1049. Judge Silverman also dissented, con-
cluding that the “deputies’ belief in the validity of . . . the
warrant was entirely reasonable” and that the “record
[wa]s totally devoid of any evidence that the deputies
acted other than in good faith.” Id., at 1050. Judge Tall-
man joined both dissents.
We granted certiorari. 564 U. S. ___ (2011).
II
The Millenders allege that they were subjected to an
unreasonable search in violation of the Fourth Amend-
ment because the warrant authorizing the search of their
home was not supported by probable cause. They seek
damages from Messerschmidt and Lawrence for their roles
in obtaining and executing this warrant. The validity of
the warrant is not before us. The question instead is
whether Messerschmidt and Lawrence are entitled to im-
munity from damages, even assuming that the warrant
should not have been issued.
“The doctrine of qualified immunity protects govern-
ment 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 (2009) (quoting Harlow v. Fitzgerald, 457 U. S. 800,
Cite as: 565 U. S. ____ (2012) 9
Opinion of the Court
818 (1982)). Qualified immunity “gives government offi-
cials breathing room to make reasonable but mistaken
judgments,” and “protects ‘all but the plainly incompetent
or those who knowingly violate the law.’ ” Ashcroft v. al-
Kidd, 563 U. S. ___, ___ (2011) (slip op., at 12) (quoting
Malley v. Briggs, 475 U. S. 335, 341 (1986)). “[W]hether
an official protected by qualified immunity may be held
personally liable for an allegedly unlawful official action
generally turns on the ‘objective legal reasonableness’ of
the action, assessed in light of the legal rules that were
‘clearly established’ at the time it was taken.” Anderson v.
Creighton, 483 U. S. 635, 639 (1987) (citation omitted).
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 reason-
able manner or, as we have sometimes put it, in “objective
good faith.” United States v. Leon, 468 U. S. 897, 922–923
(1984).1 Nonetheless, under our precedents, the fact that
a neutral magistrate has issued a warrant authorizing the
allegedly unconstitutional search or seizure does not end
the inquiry into objective reasonableness. Rather, we
have recognized an exception allowing suit when “it is
obvious that no reasonably competent officer would have
concluded that a warrant should issue.” Malley, 475 U. S.,
at 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 indi-
cia of probable cause as to render official belief in its exist-
——————
1 Although Leon involved the proper application of the exclusionary
rule to remedy a Fourth Amendment violation, we have held that “the
same standard of objective reasonableness that we applied in the con-
text of a suppression hearing in Leon defines the qualified immun-
ity accorded an officer” who obtained or relied on an allegedly invalid
warrant. Malley v. Briggs, 475 U. S. 335, 344 (1986) (citation omitted);
Groh v. Ramirez, 540 U. S. 551, 565, n. 8 (2004).
10 MESSERSCHMIDT v. MILLENDER
Opinion of the Court
ence entirely unreasonable.” Leon, 468 U. S., at 923 (in-
ternal quotation marks omitted).2
Our precedents make clear, however, that the threshold
for establishing this exception is a high one, and it should
be. As we explained in Leon, “[i]n the ordinary case, an
officer cannot be expected to question the magistrate’s
probable-cause determination” because “[i]t is the magis-
trate’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.” Id., at 921; see also Malley, supra,
at 346, n. 9 (“It is a sound presumption that the magis-
trate is more qualified than the police officer to make a
probable cause determination, and it goes without saying
that where a magistrate acts mistakenly in issuing a
warrant but within the range of professional competence
of a magistrate, the officer who requested the warrant
cannot be held liable” (internal quotation marks and
citation omitted)).
III
The Millenders contend, and the Court of Appeals held,
that their case falls into this narrow exception. According
to the Millenders, the officers “failed to provide any facts
or circumstances from which a magistrate could properly
conclude that there was probable cause to seize the broad
classes of items being sought,” and “[n]o reasonable officer
——————
2 The dissent relies almost entirely on facts outside the affidavit,
including Messerschmidt’s deposition testimony, post, at 4, 11 (opinion
of SOTOMAYOR, J.), crime analysis forms, post, at 5, Kelly’s interview,
post, at 5–6, and n. 5, Messerschmidt’s notes regarding Kelly’s inter-
view, post, at 5–6, n. 5, and even several briefs filed in the District
Court and the Court of Appeals, post, at 8–9, 12. In contrast, the
dissent cites the probable cause affidavit itself only twice. See post, at
12. There is no contention before us that the affidavit was misleading
in omitting any of the facts on which the dissent relies. Cf. Leon, 468
U. S., at 923.
Cite as: 565 U. S. ____ (2012) 11
Opinion of the Court
would have presumed that such a warrant was valid.”
Brief for Respondents 27. We disagree.
A
With respect to the warrant’s authorization to search for
and seize all firearms, the Millenders argue that “a rea-
sonably well-trained officer would have readily perceived
that there was no probable cause to search the house for
all firearms and firearm-related items.” Id., at 32. Noting
that “the affidavit indicated exactly what item was evi-
dence of a crime—the ‘black sawed off shotgun with a
pistol grip,’ ” they argue that “[n]o facts established that
Bowen possessed any other firearms, let alone that such
firearms (if they existed) were ‘contraband or evidence of a
crime.’ ” Ibid. (quoting App. 56).
Even if the scope of the warrant were overbroad in
authorizing a search for all guns when there was infor-
mation only about a specific one, that specific one was a
sawed-off shotgun with a pistol grip, owned by a known
gang member, who had just fired the weapon five times in
public in an attempt to murder another person, on the
asserted ground that she had “call[ed] the cops” on him.
Id., at 56. Under these circumstances—set forth in the
warrant—it would not have been unreasonable for an
officer to 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 (1983). And
it certainly would have been reasonable for an officer to
assume that Bowen’s sawed-off shotgun was illegal. Cf. 26
U. S. C. §§5845(a), 5861(d). Evidence of one crime is not
always evidence of several, but given Bowen’s possession
of one illegal gun, his gang membership, his willingness
to use the gun to kill someone, and his concern about
the police, a reasonable officer could conclude that there
would be additional illegal guns among others that Bowen
12 MESSERSCHMIDT v. MILLENDER
Opinion of the Court
owned.3
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 fire-
arms “with the intent to use them” to that end. Cal. Penal
Code Ann. §1524(a)(3).
Given the foregoing, 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.
Leon, supra, at 923 (internal quotation marks omitted).
With respect to the warrant’s authorization to search for
evidence of gang membership, the Millenders contend that
“no reasonable officer could have believed that the affida-
vit presented to the magistrate contained a sufficient basis
to conclude that the gang paraphernalia sought was con-
traband or evidence of a crime.” Brief for Respondents 28.
They argue that “the magistrate [could not] have reasona-
bly concluded, based on the affidavit, that Bowen’s gang
membership had anything to do with the crime under
investigation” because “[t]he affidavit described a ‘spousal
——————
3 The dissent caricatures our analysis as being that “because Bowen
fired one firearm, it was reasonable for the police to conclude . . . that
[he] must have possessed others,” post, at 10 (opinion of SOTOMAYOR,
J.). This simply avoids coming to grips with the facts of the crime at
issue.
Cite as: 565 U. S. ____ (2012) 13
Opinion of the Court
assault’ that ensued after Kelly decided to end her ‘on
going dating relationship’ with Bowen” and “[n]othing in
that description suggests that the crime was gang-
related.” Ibid. (quoting App. 55).
This effort to characterize the case solely as a domes-
tic dispute, however, is misleading. Cf. post, at 5
(SOTOMAYOR, J., dissenting); post, at 2 (KAGAN, J., concur-
ring in part and dissenting in part). Messerschmidt began
his affidavit in support of the warrant by explaining that
he “has been investigating an assault with a deadly weap-
on incident” and elaborated that the crime was a “spousal
assault and an assault with a deadly weapon.” App. 55
(emphasis added). The affidavit also stated that Bowen
was “a known Mona Park Crip gang member” “based on
information provided by the victim and the cal-gang data-
base,”4 and that he had attempted to murder Kelly after
becoming enraged that she had “call[ed] the cops on
[him].” Id., at 56, 58–59. A reasonable officer could cer-
tainly view Bowen’s attack as motivated not by the sour-
ing 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. And, as the
affidavit supporting the warrant made clear, Kelly had in
fact given the police information about Bowen’s gang ties.
Id., at 59.5
——————
4 Although the cal-gang database states that information contained
therein cannot be used to establish probable cause, see App. 64, the
affidavit makes clear that Kelly also provided this information to
Messerschmidt, id., at 59, as she did to the deputies who initially
responded to the attack, id., at 39 (describing Kelly’s statement that
Bowen was “an active member of the ‘Mona Park Crips’ ”). We there-
fore need not decide whether the cal-gang database’s disclaimer is
relevant to Fourth Amendment analysis.
5 Contrary to the dissent’s suggestion, see post, at 5–6, n. 5 (opinion
of SOTOMAYOR, J.), the affidavit’s account of Bowen’s statements is
14 MESSERSCHMIDT v. MILLENDER
Opinion of the Court
It would therefore not have been unreasonable—based
on the facts set out in the affidavit—for an officer to be-
lieve that evidence regarding Bowen’s gang affiliation
would prove helpful in prosecuting him for the attack on
Kelly. See Warden, Md. Penitentiary v. Hayden, 387 U. S.
294, 307 (1967) (holding that the Fourth Amendment
allows a search for evidence when there is “probable cause
. . . to believe that the evidence sought will aid in a partic-
ular apprehension or conviction”). Not only would such
evidence help to establish motive, either apart from or in
addition to any domestic dispute, it would also support the
bringing of additional, related charges against Bowen for
the assault. See, e.g., Cal. Penal Code Ann. §136.1(b)(1)
(West 1999) (It is a crime to “attempt[ ] to prevent or
dissuade another person who has been the victim of a
crime or who is witness to a crime from . . . [m]aking any
report of that victimization to any . . . law enforcement
officer”).6
——————
consistent with other accounts of the confrontation, in particular the
report prepared by the officers who spoke with Kelly immediately after
the attack. See App. 39 (stating that when Bowen “appeared at the
base of the stairs and began yelling at [Kelly,] [h]e was angry because
she had called the Sheriff ’s Department”). And at no point during this
litigation has the accuracy of the affidavit’s account of the attack been
called into question.
6 The dissent relies heavily on Messerschmidt’s deposition, in which
he stated that Bowen’s crime was not a “gang crime.” See post, at 4–7.
Messerschmidt’s belief about the nature of the crime, however, is not
information he possessed but a conclusion he reached based on infor-
mation known to him. See Anderson v. Creighton, 483 U. S. 635, 641
(1987). We have “eschew[ed] inquiries into the subjective beliefs of law
enforcement officers who seize evidence pursuant to a subsequently
invalidated warrant.” United States v. Leon, 468 U. S. 897, 922, n. 23
(1984); see also Harlow v. Fitzgerald, 457 U. S. 800, 815–819 (1982). In
any event, as the dissent recognizes, the inquiry under our precedents
is whether “a reasonably well-trained officer in petitioner’s position
would have known that his affidavit failed to establish probable cause.”
Malley, 475 U. S., at 345 (emphasis added). Messerschmidt’s own
evaluation does not answer the question whether it would have been
Cite as: 565 U. S. ____ (2012) 15
Opinion of the Court
In addition, a reasonable officer could believe that evi-
dence 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.
Moreover, even if this were merely a domestic dispute, a
reasonable officer could still conclude that gang parapher-
nalia found at the Millenders’ residence would aid in
the prosecution of Bowen by, for example, demonstrating
Bowen’s connection to other evidence found there. The
warrant authorized a search for “any gang indicia that
would establish the persons being sought in this warrant,”
and “[a]rticles of personal property tending to establish
the identity of [the] person in control of the premise or
premises.” App. 52. Before the District Court, the Millen-
ders “acknowledge[d] that evidence of who controlled the
premises would be relevant if incriminating evidence were
found and it became necessary to tie that evidence to a
person, ” and the District Court approved that aspect of
the warrant on this basis. App. to Pet. for Cert. 158–159
(internal quotation marks omitted). Given Bowen’s known
gang affiliation, a reasonable officer could conclude that
gang paraphernalia found at the residence would be an
effective means of demonstrating Bowen’s control over the
premises or his connection to evidence found there.7
——————
unreasonable for an officer to have reached a different conclusion from
the facts in the affidavit. See n. 2, supra.
7 The Fourth Amendment does not require probable cause to believe
evidence will conclusively establish a fact before permitting a search,
but only “probable cause . . . to believe the evidence sought will aid in a
particular apprehension or conviction.” Warden, Md. Penitentiary v.
Hayden, 387 U. S. 294, 307 (1967) (emphasis added). Even if gang
evidence might have turned out not to be conclusive because other
16 MESSERSCHMIDT v. MILLENDER
Opinion of the Court
Whatever the use to which evidence of Bowen’s gang
involvement might ultimately have been put, it would not
have been “entirely unreasonable” for an officer to believe
that the facts set out in the affidavit established a fair
probability that such evidence would aid the prosecution
of Bowen for the criminal acts at issue. Leon, 468 U. S., at
923 (internal quotation marks omitted).
B
Whether any of these facts, standing alone or taken
together, actually establish probable cause is a question
we need not decide. Qualified immunity “gives govern-
ment officials breathing room to make reasonable but
mistaken judgments.” al-Kidd, 563 U. S., at ___ (slip op.,
at 12). The officers’ judgment that the scope of the war-
rant was supported by probable cause may have been
mistaken, but it was not “plainly incompetent.” Malley,
475 U. S., at 341.
On top of all this, the fact that the officers sought and
obtained approval of the warrant application from a supe-
rior 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.
Ibid. Before seeking to have the warrant issued by a
magistrate, Messerschmidt conducted an extensive inves-
tigation into Bowen’s background and the facts of the
crime. Based on this investigation, Messerschmidt pre-
pared a detailed warrant application that truthfully laid
——————
members of the Millender household also had gang ties, see post, at 8
(opinion of SOTOMAYOR, J.); post, at 2–3 (opinion of KAGAN, J.), a rea-
sonable officer could still conclude that evidence of gang membership
would help show Bowen’s connection to the residence. Such evidence
could, for example, have displayed Bowen’s gang moniker (“C Jay”)
or could have been identified by Kelly as belonging to Bowen. See
App. 64.
Cite as: 565 U. S. ____ (2012) 17
Opinion of the Court
out the pertinent facts. The only facts omitted—the offi-
cers’ knowledge of Bowen’s arrest and conviction records,
see supra, at 3—would only have strengthened the war-
rant. Messerschmidt then submitted the warrant applica-
tion for review by Lawrence, another superior officer, and
a deputy district attorney, all of whom approved the appli-
cation without any apparent misgivings. Only after this
did Messerschmidt seek the approval of a neutral magis-
trate, who issued the requested warrant. The officers thus
“took every step that could reasonably be expected of
them.” Massachusetts v. Sheppard, 468 U. S. 981, 989
(1984). In light of the foregoing, it cannot be said that “no
officer of reasonable competence would have requested the
warrant.” Malley, 475 U. S., at 346, n. 9. Indeed, a con-
trary conclusion would mean not only that Messerschmidt
and Lawrence were “plainly incompetent,” id., at 341, but
that their supervisor, the deputy district attorney, and the
magistrate were as well.
The Court of Appeals, however, gave no weight to the
fact that the warrant had been reviewed and approved
by the officers’ superiors, a deputy district attorney, and a
neutral magistrate. Relying on Malley, the court held that
the officers had an “independent responsibility to ensure
there [was] at least a colorable argument for probable
cause.” 620 F. 3d, at 1034. It explained that “[t]he depu-
ties here had a responsibility to exercise their reasonable
professional judgment,” and that “in circumstances such
as these a neutral magistrate’s approval (and, a fortiori,
a non-neutral prosecutor’s) cannot absolve an officer of
liability.” Ibid. (citation omitted).
We rejected in Malley the contention that an officer is
automatically entitled to qualified immunity for seeking a
warrant unsupported by probable cause, simply because
a magistrate had approved the application. 475 U. S., at
345. And because the officers’ superior and the deputy
district attorney are part of the prosecution team, their
18 MESSERSCHMIDT v. MILLENDER
Opinion of the Court
review also cannot be regarded as dispositive. But by
holding in Malley that a magistrate’s approval does not
automatically render an officer’s conduct reasonable, we
did not suggest that approval by a magistrate or review
by others is irrelevant to the objective reasonableness of
the officers’ determination that the warrant was valid.
Indeed, we expressly noted that we were not deciding
“whether [the officer’s] conduct in [that] case was in fact
objectively reasonable.” Id., at 345, n. 8. The fact that the
officers secured these approvals is certainly pertinent in
assessing whether they could have held a reasonable belief
that the warrant was supported by probable cause.
C
In holding that the warrant in this case was so obvious-
ly defective that no reasonable officer could have believed
it was valid, the court below relied heavily on our decision
in Groh v. Ramirez, 540 U. S. 551 (2004), but that prece-
dent is far afield. There, we held that officers who carried
out a warrant-approved search were not entitled to quali-
fied immunity because the warrant in question failed to
describe the items to be seized at all. Id., at 557. We
explained that “[i]n the portion of the form that called for
a description of the ‘person or property’ to be seized, [the
applicant] typed a description of [the target’s] two-story
blue house rather than the alleged stockpile of firearms.”
Id., at 554. Thus, the warrant stated nonsensically that
“ ‘there is now concealed [on the specified premises] a
certain person or property, namely [a] single dwelling
residence two story in height which is blue in color and
has two additions attached to the east.’ ” Id., at 554–555,
n. 2 (bracketed material in original). Because “even a
cursory reading of the warrant in [that] case—perhaps
just a simple glance—would have revealed a glaring de-
ficiency that any reasonable police officer would have
known was constitutionally fatal,” id., at 564, we held that
Cite as: 565 U. S. ____ (2012) 19
Opinion of the Court
the officer was not entitled to qualified immunity.
The instant case is not remotely similar. In contrast to
Groh, any defect here would not have been obvious from
the face of the warrant. Rather, any arguable defect
would have become apparent only upon a close parsing of
the warrant application, and a comparison of the 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. This is not an error that
“just a simple glance” would have revealed. Ibid. Indeed,
unlike in Groh, the officers here did not merely submit
their application to a magistrate. They also presented it
for review by a superior officer, and a deputy district
attorney, before submitting it to the magistrate. The fact
that none of the officials who reviewed the application
expressed concern about its validity demonstrates that
any error was not obvious. Groh plainly does not control
the result here.
* * *
The question in this case is not whether the magistrate
erred in believing there was sufficient probable cause to
support the scope of the warrant he issued. It is instead
whether the magistrate so obviously erred that any rea-
sonable officer would have recognized the error. The
occasions on which this standard will be met may be rare,
but so too are the circumstances in which it will be appro-
priate to impose personal liability on a lay officer in the
face of judicial approval of his actions. Even if the war-
rant in this case were invalid, it was not so obviously
lacking in probable cause that the officers can be con-
sidered “plainly incompetent” for concluding otherwise.
Malley, supra, at 341. The judgment of the Court of Ap-
peals denying the officers qualified immunity must there-
fore be reversed.
It is so ordered.
Cite as: 565 U. S. ____ (2012) 1
BREYER, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–704
_________________
CURT MESSERSCHMIDT, ET AL., PETITIONERS v.
BRENDA MILLENDER, AS EXECUTOR OF THE
ESTATE OF AUGUSTA MILLENDER,
DECEASED, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[February 22, 2012]
JUSTICE BREYER, concurring.
The Court concludes that the officers acted reasonably
in searching the house for “ ‘all firearms and firearm-
related items.’ ” Ante, at 11–12 (emphasis deleted). In
support of this conclusion, it cites two sets of circum-
stances. First, the majority points to “Bowen’s possession
of one illegal gun, his gang membership, his willingness to
use the gun to kill someone, and his concern about the
police . . . .” Ante, at 11. Second, the majority notes that
“[a] reasonable officer also could believe that seizure of the
firearms was necessary to prevent further assaults on
Kelly,” because “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.” Ante, at 12. In my view,
given all these circumstances together, the officers could
reasonably have believed that the scope of their search
was supported by probable cause. On that basis, I concur.
Cite as: 565 U. S. ____ (2012) 1
Opinion of KAGAN, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–704
_________________
CURT MESSERSCHMIDT, ET AL., PETITIONERS v.
BRENDA MILLENDER, AS EXECUTOR OF THE
ESTATE OF AUGUSTA MILLENDER,
DECEASED, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[February 22, 2012]
JUSTICE KAGAN, concurring in part and dissenting in
part.
Both the Court and the dissent view this case as an
all-or-nothing affair: The Court awards immunity across
the board to Messerschmidt and his colleagues, while the
dissent would grant them none at all. I think the right
answer lies in between, although the Court makes the
more far-reaching error.
I agree with the Court that a reasonably competent
police officer could have thought this warrant valid in
authorizing a search for all firearms and related items.
See ante, at 11–12. The warrant application recounted
that a known gang member had used a sawed-off shot-
gun—an illegal weapon under California law, see Cal.
Penal Code Ann. §33215 (West 2012 Cum. Supp.)—to try
to kill another person. See App. 56–57, 59. Perhaps gang
ties plus possession of an unlawful gun plus use of that
gun to commit a violent assault do not add up to what was
needed for this search: probable cause to believe that
Bowen had additional illegal firearms (or legal firearms
that he intended to use to violate the law) at the place he
was staying. But because our and the Ninth Circuit’s
decisions leave that conclusion debatable, a reasonable
2 MESSERSCHMIDT v. MILLENDER
Opinion of KAGAN, J.
police officer could have found the warrant adequately
supported by “indicia of probable cause.” Malley v. Briggs,
475 U. S. 335, 345 (1986). So Messerschmidt and his
fellow officers should receive qualified immunity for their
search for firearms.
The Court, however, goes astray when it holds that a
reasonable officer could have thought the warrant valid in
approving a search for evidence of “street gang member-
ship,” App. 52. Membership in even the worst gang does
not violate California law, so the officers could not search
for gang paraphernalia just to establish Bowen’s ties to
the Crips. Instead, the police needed probable cause to
believe that such items would provide evidence of an
actual crime—and as the Court acknowledges, see ante, at
12–14, the only crime mentioned in the warrant applica-
tion was the assault on Kelly. The problem for the Court
is that nothing in the application supports a link between
Bowen’s gang membership and that shooting. Contra the
Court’s elaborate theory-spinning, see ante, at 12–16,
Messerschmidt’s affidavit in fact characterized the violent
assault only as a domestic dispute, not as a gang-related
one, see App. 55 (describing the crime as a “spousal as-
sault and an assault with a deadly weapon”). And that
description is consistent with the most natural under-
standing of the events. The warrant application thus had
a hole at its very center: It lacked any explanation of how
gang items would (or even might) provide evidence of the
domestic assault the police were investigating.
To fill this vacuum, the Court proposes an alternative,
but similarly inadequate justification—that gang para-
phernalia could have demonstrated Bowen’s connection to
the Millender residence and to any evidence of the assault
found there. The dissent rightly notes one difficulty with
this argument: The discovery of gang items would not
have established that Bowen was staying at the house,
given that several other gang members regularly did so.
Cite as: 565 U. S. ____ (2012) 3
Opinion of KAGAN, J.
See post, at 8–9 (opinion of SOTOMAYOR, J.). And even
setting that issue aside, the Court’s reasoning proves far
too much: It would sanction equally well a search for any
of Bowen’s possessions on the premises—a result impos-
sible to square with the Fourth Amendment. See, e.g.,
Andresen v. Maryland, 427 U. S. 463, 480 (1976) (disap-
proving “ ‘a general, exploratory rummaging in a person’s
belongings’ ” (quoting Coolidge v. New Hampshire, 403
U. S. 443, 467 (1971))). In authorizing a search for all
gang-related items, the warrant far outstripped the offic-
ers’ probable cause. Because a reasonable officer would
have recognized that defect, I would not award qualified
immunity to Messerschmidt and his colleagues for this
aspect of their search.
Still more fundamentally, the Court errs in scolding the
Court of Appeals for failing to give “weight to the fact that
the warrant had been reviewed and approved by the offic-
ers’ superiors, a deputy district attorney, and a neutral
magistrate.” Ante, at 17. As the dissent points out,
see post, at 13–15, this Court’s holding in Malley is to
the opposite effect: An officer is not “entitled to rely on the
judgment of a judicial officer in finding that probable
cause exists and hence issuing the warrant.” 475 U. S., at
345. Malley made clear that qualified immunity turned
on the officer’s own “professional judgment,” considered
separately from the mistake of the magistrate. Id., at 346;
see ibid., n. 9 (“The officer . . . cannot excuse his own
default by pointing to the greater incompetence of the
magistrate”); id., at 350 (Powell, J., concurring in part and
dissenting in part) (objecting to the Court’s decision to
“give little evidentiary weight to the finding of probable
cause by a magistrate”). And what we said in Malley
about a magistrate’s authorization applies still more
strongly to the approval of other police officers or state
attorneys. All those individuals, as the Court puts it, are
“part of the prosecution team.” Ante, at 18. To make their
4 MESSERSCHMIDT v. MILLENDER
Opinion of KAGAN, J.
views relevant is to enable those teammates (whether
acting in good or bad faith) to confer immunity on each
other for unreasonable conduct—like applying for a war-
rant without anything resembling probable cause.
For these reasons, I would reverse in part and affirm in
part the judgment of the Court of Appeals, and I would
remand this case for further proceedings.
Cite as: 565 U. S. ____ (2012) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–704
_________________
CURT MESSERSCHMIDT, ET AL., PETITIONERS v.
BRENDA MILLENDER, AS EXECUTOR OF THE
ESTATE OF AUGUSTA MILLENDER,
DECEASED, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[February 22, 2012]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, dissenting.
The fundamental purpose of the Fourth Amendment’s
warrant clause is “to protect against all general searches.”
Go-Bart Importing Co. v. United States, 282 U. S. 344, 357
(1931). The Fourth Amendment was adopted specifically
in response to the Crown’s practice of using general war-
rants and writs of assistance to search “suspected places”
for evidence of smuggling, libel, or other crimes. Boyd v.
United States, 116 U. S. 616, 625–626 (1886). Early patri-
ots railed against these practices as “the worst instrument
of arbitrary power” and John Adams later claimed that
“the child Independence was born” from colonists’ opposi-
tion to their use. Id., at 625 (internal quotation marks
omitted).
To prevent the issue of general warrants on “loose,
vague or doubtful bases of fact,” Go-Bart Importing Co.,
282 U. S., at 357, the Framers established the inviolable
principle that should resolve this case: “no Warrants shall
issue, but upon probable cause . . . and particularly de-
scribing the . . . things to be seized.” U. S. Const., Amdt. 4.
That is, the police must articulate an adequate reason to
search for specific items related to specific crimes.
2 MESSERSCHMIDT v. MILLENDER
SOTOMAYOR, J., dissenting
In this case, police officers investigating a specific, non-
gang-related assault committed with a specific firearm (a
sawed-off shotgun) obtained a warrant to search for all
evidence related to “any Street Gang,” “[a]ny photographs
. . . which may depict evidence of criminal activity,” and
“any firearms.” App. 52. They did so for the asserted
reason that the search might lead to evidence related to
other gang members and other criminal activity, and that
other “[v]alid warrants commonly allow police to search
for ‘firearms and ammunition.’ ” See infra, at 8–9. That
kind of general warrant is antithetical to the Fourth
Amendment.
The Court nonetheless concludes that the officers are
entitled to qualified immunity because their conduct was
“objectively reasonable.” I could not disagree more. All
13 federal judges who previously considered this case
had little difficulty concluding that the police officers’
search for any gang-related material violated the Fourth
Amendment. See App. to Pet. for Cert. 28–29, 45, n. 7,
73, 94, 157–158. And a substantial majority agreed that
the police’s search for both gang-related material and all
firearms not only violated the Fourth Amendment, but
was objectively unreasonable. Like them, I believe that
any “reasonably well-trained officer in petitioner’s position
would have known that his affidavit failed to establish
probable cause.” Malley v. Briggs, 475 U. S. 335, 345
(1986).
The Court also hints that a police officer’s otherwise
unreasonable conduct may be excused by the approval of
a magistrate, or more disturbingly, another police officer.
Ante, at 16–18. That is inconsistent with our focus on the
objective reasonableness of an officer’s decision to submit
a warrant application to a magistrate, and we long ago
rejected it. See Malley, 475 U. S., at 345–346.
The Court’s analysis bears little relationship to the
record in this case, our precedents, or the purposes under-
Cite as: 565 U. S. ____ (2012) 3
SOTOMAYOR, J., dissenting
lying qualified immunity analysis. For all these reasons,
I respectfully dissent.
I
The Court holds that a well-trained officer could have
reasonably concluded that there was probable cause to
search the Millenders’ residence for any evidence of affilia-
tion with “any Street Gang,” and “all handguns, rifles, or
shotguns of any caliber, or any firearms capable of firing
ammunition.” App. 52.1 I cannot agree.
A
Most troubling is the Court’s determination that peti-
tioners reasonably could have concluded that they had
probable cause to search for all evidence of any gang affili-
ation in the Millenders’ home. The Court reaches this
result only by way of an unprecedented, post hoc recon-
struction of the crime that wholly ignores the police’s own
conclusions, as well as the undisputed facts presented to
the District Court.
The Court primarily theorizes that “[a] reasonable of-
ficer 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.” Ante, at 13. The
majority therefore dismisses as “misleading” the Millen-
ders’ characterization of the case as a “domestic dispute,”
insisting that Detective Messerschmidt could have rea-
sonably thought that the crime was gang related. See
ante, at 13–14.2
——————
1 Not even the Court defends the warrant’s authorization to search for
“[a]ny photographs . . . which may depict evidence of criminal activity.”
2 The Court implies Detective Messerschmidt did not consider the
crime “solely . . . a domestic dispute” because he labeled it a “spousal
assault and an assault with a deadly weapon.” Ante, at 13 (internal
quotation marks omitted). Solely domestic disputes often involve gun
violence, however. See Sorenson & Weibe, Weapons in the Lives of
4 MESSERSCHMIDT v. MILLENDER
SOTOMAYOR, J., dissenting
The police flatly rejected that hypothesis, however, con-
cluding that the crime was a domestic dispute that was
not in any way gang related. Detective Messerschmidt’s
deposition is illustrative.
“Q: So as far as you knew, it was just sort of a spousal-
abuse-type case where the perpetrator happened to be
in a gang, right?
“A: Correct.
“Q: So you didn’t have any reason to believe that the
assault on Kelly was any sort of gang crime, did you?
“A: No.” Record in No. CV 05–2298 DDP (RZx) (CD
Cal.) (hereinafter Record), Doc. 51, (Exh. X), p. 120
(hereinafter Deposition).3
The “Crime Analysis” forms prepared by the police like-
——————
Battered Women, 94 Am. J. Pub. Health 1412, 1413 (2004) (noting
more than one-third of female domestic violence shelter residents in
California reported having been threatened or harmed with a firearm).
That was the case here. In any event, the Court’s reading of Detective
Messerschmidt’s affidavit is incompatible with his testimony that the
crime was “just sort of a spousal-abuse-type case,” not a “gang crime.”
See supra this page.
3 By suggesting that courts assessing qualified immunity should ig-
nore police officers’ testimony about the information they possessed at
the time of the search, ante, at 14–15, n. 6, the Court misreads Harlow
v. Fitzgerald, 457 U. S. 800, 815–819 (1982), and Anderson v.
Creighton, 483 U. S. 635, 645 (1987). In Harlow, we adopted a qualified
immunity test focusing on an officer’s objective good faith, rather than
whether the officer searched “with the malicious intention to cause a
deprivation of constitutional rights or other injury.” 457 U. S., at 815.
As we have explained, “examination of the information possessed by the
searching officials . . . does not reintroduce into qualified immunity
analysis the inquiry into officials’ subjective intent that Harlow sought
to minimize.” Anderson, 483 U. S., at 641. It is therefore highly
relevant that Detective Messerschmidt testified that he lacked “any
reason” to consider the crime gang related, supra this page, and pos-
sessed no “information” that there were handguns in the Millenders’
home, infra, at 11. Courts cannot ignore information in crime analysis
forms, ballistic reports, or victim interviews by labeling such infor-
mation “conclusions.”
Cite as: 565 U. S. ____ (2012) 5
SOTOMAYOR, J., dissenting
wise identified Bowen as a “Mona Park Crip” gang mem-
ber, but did not check off “gang-related” as a motive for the
attack. See App. 41, 44 (Crime Analysis Supplemental
Form–M. O. Factors). And the District Court noted it was
undisputed that Detective Messerschmidt “had no reason
to believe Bowen’s crime was a ‘gang’ crime.” App. to Pet.
for Cert. 115.4
The police’s conclusions matched the victim’s own ac-
count of the attack. Kelly asked police officers to help her
move out because Bowen “ha[d] a domestic violence on his
record,” had “hit [her] once or twice” already, had repeat-
edly threatened her “You’ll never leave me. I’ll kill you
if you leave me,” and she was “planning on breaking up”
with him. Record, Doc. 51 (Exh. C), pp. 5–6 (hereinafter
Kelly Interview). As Kelly described the confrontation, it
was only after she fled to her car in order to leave that
Bowen reemerged from their shared apartment with the
shotgun and told her “I’m gonna kill your ass right here if
you take off,” consistent with his prior threats. Id., at 7–8.
Every piece of information, therefore, accorded with Detec-
tive Messerschmidt’s conclusion: The crime was domestic
violence that was not gang related.5
——————
4 The Court is wrong to imply that courts should not consider “facts
outside the affidavit,” but within the officers’ possession, when as-
sessing qualified immunity. Ante, at 10, n. 2. Our precedents make
clear that the objective reasonableness of an officer’s conduct is judged
“in light of clearly established law and the information the officers
possessed.” Wilson v. Layne, 526 U. S. 603, 615 (1999). If an officer
possesses information indicating that he lacks probable cause to search,
and that information was not presented to the neutral magistrate when
he approved the search, it is particularly likely that “a reasonably well
trained officer would have known that the search was illegal despite
the magistrate’s authorization.” United States v. Leon, 468 U. S. 897,
922, n. 23 (1984).
5 To support its theory that Bowen attacked Kelly to keep her silent
about his gang activity, the majority relies principally on its claim that
Bowen yelled, “ ‘I told you never to call the cops on me bitch!’ ” ante, at
2, citing it no less than five times. See, ante, at 11 (Bowen “attempt[ed]
6 MESSERSCHMIDT v. MILLENDER
SOTOMAYOR, J., dissenting
Unlike the Members of this Court, Detective Messer-
schmidt alone had 14 years of experience as a peace of-
ficer, “hundreds of hours of instruction on the dynamics of
gangs and gang trends,” received “specialized training in
the field of gang related crimes,” and had been “involved
in hundreds of gang related incidents, contacts, and or
arrests.” App. 53–54. The Court provides no justification
for sweeping aside the conclusions he reached on the basis
of his far greater expertise, let alone the facts found by the
District Court. We have repeatedly and recently warned
appellate courts, “far removed from the scene,” against
second-guessing the judgments made by the police or
reweighing the facts as they stood before the district court.
Ryburn v. Huff, 565 U. S. —, — (2012) (per curiam) (slip
op., at 6–8). The majority’s decision today is totally incon-
sistent with those principles.
Qualified immunity analysis does not direct courts to
play the role of crime scene investigators, second-guessing
police officers’ determinations as to whether a crime was
committed with a handgun or a shotgun, or whether vio-
——————
to murder” Kelly “on the asserted ground that she had ‘call[ed] the cops’
on him”); see also ante, at 1, 13. Bowen, however, never made that
statement. Though it appears in the warrant application, the words
are Messerschmidt’s—taken from his own inaccurate notes of Kelly’s
account of the crime. What Kelly actually said during her interview
was that as soon as the police deputies left, Bowen “came out of no-
where talking about, ‘Did you call the police on me? You called the
police on me,’ ” to which Kelly responded “no one called the police on
you . . . . [I]nstead of arguing and fighting with you I just want to get
my shit done.” Kelly Interview 7; compare ibid. with Record, Doc. 51
(Exh. B), p. 3 (Messerschmidt’s narrative of interview with Kelly). Only
after Kelly started to leave did Bowen exclaim “oh it’s like that. It’s
like that,” retrieve a gun, and threaten to shoot her if she left. Kelly
Interview 7–8. That Bowen was “ ‘angry,’ ” ante, at 14, n. 5, because she
had called the sheriff's department for assistance reflected exactly what
Kelly and the police expected at the outset—that Bowen “would give
her a hard time about moving out.” App. 38 (sheriff’s department
incident report).
Cite as: 565 U. S. ____ (2012) 7
SOTOMAYOR, J., dissenting
lence was gang related or a domestic dispute. Indeed,
we have warned courts against asking “whether another
reasonable, or more reasonable, interpretation of the
events can be constructed five years after the fact.”
Hunter v. Bryant, 502 U. S. 224, 228 (1991) (per curiam).
The inquiry our precedents demand is not whether differ-
ent conclusions might conceivably be drawn from the
crime scene. Rather, it is whether “a reasonably well-
trained officer in petitioner’s position would have known
that his affidavit failed to establish probable cause.”
Malley, 475 U. S., at 345. The operative question in this
case, therefore, is whether—given that, as petitioners
comprehended, the crime itself was not gang related—a
reasonable officer nonetheless could have believed he had
probable cause to seek a warrant to search the suspect’s
residence for all evidence of affiliation not only with the
suspect’s street gang, but “any Street Gang.” He could
not.
The Court offers two secondary explanations for why a
search for gang-related items might have been justified,
but they are equally unpersuasive. First, the majority
suggests that such evidence hypothetically “might prove
helpful in impeaching Bowen or rebutting various de-
fenses he could raise at trial.” Ante, at 15. That is a non-
starter. The Fourth Amendment does not permit the police
to search for evidence solely because it could be admissible
for impeachment or rebuttal purposes. If it did, the police
would be equally entitled to obtain warrants to rifle
through the papers of anyone reasonably suspected of a
crime for all evidence of his bad character, Fed. Rule Evid.
404(a)(2)(B)(i), or any evidence of any “crime, wrong, or
other act” that might prove the defendant’s “motive, op-
portunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident,” Fed. Rule Evid.
404(b)(2). Indeed, the majority’s rationale presumably
would authorize the police to search the residence of every
8 MESSERSCHMIDT v. MILLENDER
SOTOMAYOR, J., dissenting
member of Bowen’s street gang for similar weapons—
which likewise “might [have] prove[d] helpful in impeach-
ing Bowen or rebutting various defenses he could raise at
trial.” Ante, at 15. It has long been the case, however,
that such general searches, detached from probable cause,
are impermissible. See, e.g., Go-Bart Importing Co., 282
U. S., at 357. By their own admission, however, the offic-
ers were not searching for gang-related indicia to bolster
some hypothetical impeachment theory, but for other
reasons: because “photos sought re gang membership
could be linked with other gang members, evidencing
criminal activity as gang affiliation is an enhancement to
criminal charges.” App. 181; see also id., at 145. That
kind of fishing expedition for evidence of unidentified
criminal activity committed by unspecified persons was
the very evil the Fourth Amendment was intended to
prevent.
Finally, the Court concludes that “even if this were
merely a domestic dispute, a reasonable officer could still
conclude that gang paraphernalia found at the Millenders’
residence would aid in the prosecution of Bowen by, for
example, demonstrating Bowen’s connection to other
[unspecified] evidence found there.” Ante, at 15. That is
difficult to understand. The police were well aware before
obtaining a warrant that “other persons associated with
the home, the Millender family members, were active
Mona Park Crip gang members.” App. 28. Simply finding
gang-related paraphernalia, therefore, would have done
little to establish probable cause that particular evidence
found in the home was connected to Bowen, rather than
any of the several other active gang members who resided
full time at the Millender home.6 Moreover, it would have
——————
6 The Court suggests that even if gang-related evidence would be
inconclusive generally, evidence bearing Bowen’s particular gang mon-
iker could have demonstrated Bowen’s connection to the residence.
Cite as: 565 U. S. ____ (2012) 9
SOTOMAYOR, J., dissenting
done nothing to establish that Bowen had committed the
non-gang-related crime specified in the warrant.7
B
The Court also errs by concluding that petitioners could
have reasonably concluded that they had probable cause
to search for all firearms. Notably absent from the Court’s
discussion is any acknowledgment of the actual basis for
petitioners’ search. The police officers searched for all
firearms not for the reasons hypothesized by the majority,
but because they determined that “[v]alid warrants com-
monly allow police to search for ‘firearms and ammuni-
tion,’ ” and that “[h]ere, any caliber of shotgun or receipts
would show possession of and/or purchase of guns.” Id., at
144, 180–181; see also Brief for Appellant in No. 07–55518
(CA9), p. 41 (hereinafter CA9 Brief). It is small wonder
that the District Court found these arguments “nonsensi-
cal and unpersuasive.” App. to Pet. for Cert. 157. It bears
repeating that the Founders adopted the Fourth Amend-
ment to protect against searches for evidence of unspeci-
fied crimes. And merely possessing other firearms is not a
crime at all. See generally District of Columbia v. Heller,
554 U. S. 570 (2008).8
——————
But the warrant did not authorize a search for items bearing Bowen’s
moniker, but rather for items related to “any Street Gang,” including
countless street gangs of which Bowen was not a member. App. 52.
Even under the Court’s interpretation, therefore, the warrant was
hopelessly overbroad and invalid.
7 The police also could not search for gang-related evidence for its own
sake. Mere membership in a gang is not a crime under California law.
See People v. Gardeley, 14 Cal. 4th 605, 623, 927 P. 2d 713, 725 (1996).
8 Although the Court recites additional facts about Bowen’s back-
ground and arrest record, ante, at 2–3, none of these facts were dis-
closed to the magistrate. The police cannot rationalize a search post
hoc on the basis of information they failed to set forth in their warrant
application to a neutral magistrate. Rather, “[i]t is elementary that in
passing on the validity of a warrant, the reviewing court may consider
only information brought to the magistrate’s attention.” Aguilar v.
10 MESSERSCHMIDT v. MILLENDER
SOTOMAYOR, J., dissenting
By justifying the officers’ actions on reasons of its own
invention, the Court ignores the reasons the officers actu-
ally gave, as well as the facts upon which this case was
decided below. The majority’s analysis—akin to a rational-
basis test—is thus far removed from what qualified
immunity analysis demands. Even if the police had
searched for the reasons the Court proposes, however, I
still would find it inappropriate to afford them qualified
immunity.
The Court correctly recognizes that to satisfy the Fourth
Amendment the police were required to demonstrate
probable cause that (1) other firearms could be found at
the Millenders’ residence; and (2) such weapons were
illegal or were “ ‘possess[ed] . . . with the intent to use
them as a means of committing a public offense.’ ” Ante, at
12 (quoting Cal. Penal Code Ann. §1524(a)(3) (West
2011)). The warrant failed to establish either.
The majority has little difficulty concluding that because
Bowen fired one firearm, it was reasonable for the police
to conclude not only that Bowen must have possessed
others, but that he must be storing these other weapons
at his 73-year-old former foster mother’s home.9 Again,
however, this is not what the police actually concluded, as
Detective Messerschmidt’s deposition makes clear.
“Q: Did you have any reason to believe there would be
——————
Texas, 378 U. S. 108, 109, n. 1 (1964); see also United States v. Jacob-
sen, 466 U. S. 109, 112 (1984). Likewise, a police officer cannot obtain
qualified immunity for searching pursuant to a warrant by relying
upon facts outside that warrant, as evinced by Malley’s focus on
“whether a reasonably well-trained officer in petitioner’s position would
have known that his affidavit failed to establish probable cause.”
Malley v. Briggs, 475 U. S. 335, 345 (1986) (emphasis added).
9 The majority ignores that Bowen retrieved the shotgun that he fired
from the apartment he shared with Kelly, not the Millenders’ home.
Kelly provided no indication that Bowen possessed other guns or that
he stored them at his former foster mother’s home.
Cite as: 565 U. S. ____ (2012) 11
SOTOMAYOR, J., dissenting
any automatic weapons in the house?
“A: No.
“Q: Did you have any reason to believe there would be
any hand guns in the house?
“A: I wasn’t given information that there were.” Dep-
osition 120.
Undaunted, the majority finds that a well-trained officer
could have concluded on this information that he had
probable cause to search for “[a]ll hand guns, . . . [a]ll
caliber of ammunition, miscellaneous gun parts, gun
cleaning kits, holsters which could hold or have held any
caliber handgun being sought,” and “[a]ny receipts or
paperwork, showing the purchase, ownership, or posses-
sion of the handguns being sought.” App. 52. That is
puzzling. If any aspect of the Fourth Amendment is clear-
ly established, it is that the police cannot reasonably
search—even pursuant to a warrant—for items that they
do not have “any reason to believe” will be present. The
Court’s conclusion to the contrary simply reads the “prob-
able cause” requirement out of the Fourth Amendment.
Even assuming that the police reasonably could have
concluded that Bowen possessed other guns and was
storing them at the Millenders’ home, I cannot agree that
the warrant provided probable cause to believe any weap-
on possessed in a home in which 10 persons regularly
lived—none of them the suspect in this case—was either
“contraband or evidence of a crime.” Ornelas v. United
States, 517 U. S. 690, 696 (1996). The warrant set forth no
specific facts or particularized explanation establishing
probable cause to believe that other guns found in the
home were connected to the crime specified in the warrant
or were otherwise illegal.10 While the Court hypothesizes
——————
10 Augusta Millender was a 73-year-old grandmother living in a dan-
gerous part of Los Angeles. It would not have been unreasonable to
imagine that she validly possessed a weapon for self-defense, as turned
12 MESSERSCHMIDT v. MILLENDER
SOTOMAYOR, J., dissenting
that the police could have searched for all firearms to
uncover evidence of yet unnamed crimes, ante, at 11–12,
the warrant specified that the police were investigating
one particular crime—“an assault with a deadly weapon.”
App. 55. And the police officers confirmed that their
search was targeted to find the gun related to “the crime
at issue.” CA9 Brief 42; see also App. 52 (obtaining au-
thorization to search for “the item being sought and or
believed to be evidence in the case being investigated on
this warrant” (emphasis added)).
The police told the Ninth Circuit that they searched for
all firearms not because, as the majority hypothesizes,
“there would be additional illegal guns among others that
Bowen owned,” ante, at 11–12, but on the dubious theory
that “Kelly could have been mistaken in her description of
the gun.” App. to Pet. for Cert. 20–21. The Ninth Circuit
properly dismissed that argument as carrying “little
force.” Id., at 21. Its finding is unimpeachable, given that
Kelly presented the police with a photograph of Bowen
holding the specific gun used in the crime, and the police,
the victim, and a witness to the crime all identified the
gun as a sawed-off shotgun. See id., at 20, 21, 24, 28.
Finally, the majority suggests that the officers could
have reasonably believed that seizure of all firearms at the
Millenders’ residence was justified because those weapons
might be possessed by Bowen “ ‘with the intent to use
them as a means of committing a public offense.’ ” Ante, at
12. But the warrant specified that the police sought only
the shotgun used in this crime for that purpose. See App.
59 (statement of probable cause) (“Your Affiant also be-
lieves that the items sought will be in the possession of
Jerry Ray Bowen and the recovery of the weapon could be
invaluable in the successful prosecution of the suspect
involved in this case, and the curtailment of further
——————
out to be the case.
Cite as: 565 U. S. ____ (2012) 13
SOTOMAYOR, J., dissenting
crimes being committed” (emphasis added)).
II
The Court also finds error in the Court of Appeals’
failure to find “pertinent” the fact that the officer sought
approval of his warrant from a magistrate.11 Ante, at 18.
Whether Detective Messerschmidt presented his warrant
application to a magistrate surely would be “pertinent” to
demonstrating his subjective good faith.12 But qualified
immunity does not turn on whether an officer is motivated
by good intentions or malice, but rather on the “objective
reasonableness of an official’s conduct.” Harlow v. Fitz-
gerald, 457 U. S. 800, 818 (1982).
The majority asserts, without citation, that the magis-
trate’s approval is relevant to objective reasonableness.
That view, however, is expressly contradicted by our hold-
ing in Malley v. Briggs, 475 U. S. 335. There, we found
that a police officer is not “entitled to rely on the judgment
of a judicial officer in finding that probable cause exists
and hence issuing the warrant,” and explained that “[that]
view of objective reasonableness is at odds with our devel-
opment of that concept in Harlow and [United States v.
Leon, 468 U. S. 897 (1984)].” Id., at 345. The appropriate
qualified immunity analysis, we held, was not whether an
——————
11 Under California law, magistrates are the officials responsible for
issuing search warrants. Cal. Penal Code Ann. §1523 (West 2011).
12 To be clear, no one suggests petitioners acted with malice or in-
tended to be “misleading in omitting . . . facts,” ante, at 10, n. 2, that
illustrate why it would have been objectively unreasonable to search for
the reasons the Court proposes. It is hardly surprising, for instance,
that Detective Messerschmidt did not include in his affidavit further
facts affirming that the crime was not gang related, given that he did
not believe the crime was gang related and did not search for gang-
related material for that reason. See supra, at 7–8. The affidavit and
warrant were perfectly consistent with the officers’ stated reasons for
their search—just not with the Court’s own theories.
14 MESSERSCHMIDT v. MILLENDER
SOTOMAYOR, J., dissenting
officer reasonably relied on a magistrate’s probable cause
determination, but rather “whether a reasonably well-
trained officer in petitioner’s position would have known
that his affidavit failed to establish probable cause and
that he should not have applied for the warrant.” Ibid.
(emphasis added).13 In such a case, “the officer’s applica-
tion for a warrant [would] not [be] objectively reasonable,
because it create[s] the unnecessary danger of an unlawful
arrest.” Ibid. When “no officer of reasonable competence
would have requested the warrant,” a “magistrate [who]
issues the warrant [makes] not just a reasonable mistake,
but an unacceptable error indicating gross incompetence
or neglect of duty.” Id., at 346, n. 9. In such cases, “[t]he
officer . . . cannot excuse his own default by pointing to the
greater incompetence of the magistrate.” Ibid.
In cases in which it would be not only wrong but un-
reasonable for any well-trained officer to seek a warrant,
allowing a magistrate’s approval to immunize the police
officer’s unreasonable action retrospectively makes little
sense. By motivating an officer “to reflect, before submit-
ting a request for a warrant, upon whether he has a rea-
sonable basis for believing that his affidavit establishes
probable cause,” we recognized that our qualified immu-
nity precedents had the “desirable” effect of “reduc[ing] the
likelihood that the officer’s request for a warrant will be
premature,” leading to “a waste of judicial resources” or
“premature arrests.” Id., at 343. To the extent it proposes
to cut back upon Malley, the majority will promote the
opposite result—encouraging sloppy police work and ex-
acerbating the risk that searches will not comport with
the requirements of the Fourth Amendment.
——————
13 Two Justices wrote separately, disagreeing with the majority be-
cause they believed that “substantial weight should be accorded the
judge’s finding of probable cause.” Malley, 475 U. S., at 346 (Powell, J.,
joined by Rehnquist, C. J., concurring in part and dissenting in part).
Cite as: 565 U. S. ____ (2012) 15
SOTOMAYOR, J., dissenting
The Court also makes much of the fact that Detective
Messerschmidt sent his proposed warrant application to
two superior police officers and a district attorney for
review. Giving weight to that fact would turn the Fourth
Amendment on its head. This Court made clear in Malley
that a police officer acting unreasonably cannot obtain
qualified immunity on the basis of a neutral magistrate’s
approval. It would be passing strange, therefore, to im-
munize an officer’s conduct instead based upon the ap-
proval of other police officers and prosecutors.14 See John-
son v. United States, 333 U. S. 10, 14 (1948) (opinion of
Jackson, J.) (“When the right of privacy must reasonably
yield to the right of search is, as a rule, to be decided by a
judicial officer, not by a policeman or government en-
forcement agent”). The effect of the Court’s rule, however,
is to hold blameless the “plainly incompetent” action of the
police officer seeking a warrant because of the “plainly
incompetent” approval of his superiors and the district
attorney. See ante, at 16–18; see also ante, at 3–4 (opinion
of KAGAN, J.). Under the majority’s test, four wrongs
apparently make a right. I cannot agree, however, that
the “objective legal reasonableness of an official’s acts,”
Harlow, 457 U. S., at 819, turns on the number of police
officers or prosecutors who improperly sanction a search
that violates the Fourth Amendment.
III
Police officers perform a difficult and essential service to
society, frequently at substantial risk to their personal
——————
14 In the famous case of Wilkes v. Wood, Lofft 1, 98 Eng. Rep. 489
(C. P. 1763), one of the seminal events informing the Framers’ development
of the Fourth Amendment, the Undersecretary of State who searched
the home of John Wilkes pursuant to a general warrant was subjected
to monetary damages notwithstanding that his superior, Lord Halifax,
issued the warrant. See Boyd v. United States, 116 U. S. 616, 626
(1886).
16 MESSERSCHMIDT v. MILLENDER
SOTOMAYOR, J., dissenting
safety. And criminals like Bowen are not sympathetic
figures. But the Fourth Amendment “protects all, those
suspected or known to be offenders as well as the inno-
cent.” Go-Bart Importing Co., 282 U. S., at 357. And this
Court long ago recognized that efforts “to bring the guilty
to punishment, praiseworthy as they are, are not to be
aided by the sacrifice of those great principles established
by years of endeavor and suffering which have resulted
in their embodiment in the fundamental law of the land.”
Weeks v. United States, 232 U. S. 383, 393 (1914).
Qualified immunity properly affords police officers protec-
tion so long as their conduct is objectively reasonable.
But it is not objectively reasonable for police investi-
gating a specific, non-gang-related assault committed with
a particular firearm to search for all evidence related to
“any Street Gang,” “photographs . . . which may depict
evidence of criminal activity,” and all firearms. The Court
reaches a contrary result not because it thinks that these
police officers’ stated reasons for searching were objective-
ly reasonable, but because it thinks different conclusions
might be drawn from the crime scene that reasonably
might have led different officers to search for different
reasons. That analysis, however, is far removed from
qualified immunity’s proper focus on whether petitioners
acted in an objectively reasonable manner.
Because petitioners did not, I would affirm the judgment
of the Court of Appeals.