Messerschmidt v. Millender

Introduction

The constitution of the United States and individual state constitutions authorize and restrict police powers. The authority of the police to perform their sworn duties is underscored in statutes, ordinances, and frequently court decisions. The failure of the police to adhere to U.S. Constitutional requirements, as interpreted by the courts, increases the risk of a case being dismissed or lost in court, but also increases the risk of exposure to civil liability. The responsibility for law enforcement officers to perform their duties within the boundaries of the law requires that they keep abreast of changes of the law in order to perform their constitutional duties lawfully while reducing their risk of civil liability.

Among the more commonly performed duties by the police is conducting searches. While the preferred method for conducting a search is to secure a warrant first, the police may also conduct searches without a warrant under certain circumstances. Past court decisions have described the criteria for conducting a search and securing a warrant and when evidence is excluded from a criminal case it is frequently due to an officer’s failure to follow the law (Walker & Hemmens, 2008). What constitutes a reasonable search has been addressed on numerous occasions by the U.S. Supreme Court and the primary emphasis of these decisions is to ensure that the search is premised on probable cause.

A failure by a law enforcement officer to follow established court guidelines may trigger civil liability. A citizen alleging that an officer violated their constitutional rights during a search (or other activity) whereby seizing evidence illegally may file a civil lawsuit. In such a lawsuit, a citizen may claim that the police officer performed the search without probable cause and seeks monetary damages as a remedy. An officer may claim a defense through asserting qualified immunity to the allegation. Under the doctrine of qualified immunity, governmental officials cannot be held individually liable for federal civil rights violations unless their conduct violated a “clearly established right of which a reasonable person would have known” (Stone & Berger, 2009). Qualified immunity is based on the performance of discretionary acts. Discretionary acts are activities that require deliberation or judgment. This includes numerous tasks, but the courts determine the functions in which officers possess immunity. Discretionary actions, for example, may include the decision to arrest a drunk driver or cite a speeding motorist. In most situations, discretionary actions are applied to an agency administrator who is responsible for policy decisions and implementation.

Qualified immunity is provided to protect public officers in decisions in which the parameters of a person’s constitutional rights are unclear. This may occur when (1) a decision is made, and it is not clearly established that a constitutional right exists; or (2) the right was clearly established but the officer could not reasonably know that this decision or conduct was unlawful, thereby violating the constitutional rights of the plaintiff. Based on these two fundamental issues, the court must determine whether the officer is immune from civil liability. If the court concludes that the law was not clearly established and that the officer acted reasonably, the officer would be granted immunity.

Frequently, the concern over whether a police officer performed his or her duties legally intersects with a liability claim. Questions emerge as to whether the officer’s conduct should be immunized. In Messerschmidt v. Millender (2012) the U.S. Supreme Court addressed this dual concern as they reviewed the question as to whether an officer is entitled to qualified immunity when obtaining a valid search warrant. This article presents a brief review of the requirements and relevant case decisions regarding securing a search warrant and relevant cases outlining qualified immunity, a review of the facts in Messerschmidt, and an analysis of the court’s decision is presented.

A Brief Review of Search Warrant Case Decisions

A fundamental function of the U.S. Constitution is to protect against unreasonable intrusions by governmental officials. Indeed, the creation of the Constitution in 1789 and the Bill of Rights in 1791 created a strong government but also established restraints on the government in order to protect the guarantees of liberty. The Fourth Amendment states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment is a primary method to controlling the government. In MacDonald v. United States (1948), the court opined that securing a search warrant serves as a high function. Lacking some grave emergency, the Fourth Amendment interjects a magistrate between the citizen and the police, not to shield a criminal but rather to weigh the need to invade the privacy of the home in order to enforce the law.

A search warrant is a written order, submitted by a law enforcement officer, issued by a magistrate, directing an officer to search for evidence connected to a crime and to bring it before the court. In nearly every state, the officer requesting the search warrant must state the facts and establish probable cause in a written and sworn affidavit. The Court has held that it “prefers” that officers seek a search warrant and have reduced the requirements for establishing probable cause ( United States v. Ventresca, 1965). The Court ruled that it was permissible to allow hearsay to establish probable cause to secure a search warrant in order to search a house for an illegal alcohol distillery. Further in Malley v. Briggs (1986), the Court commented that the rule of qualified immunity provides that a police officer cannot avoid liability for causing an unconstitutional arrest by presenting the judicial officer with a complaint and a supporting affidavit that failed to establish probable cause.

There are four requirements for securing a search warrant established by the U.S. Supreme Court which underscore the application of the Fourth Amendment. First, the officer seeking the warrant must provide information to support probable cause. In Dumbra v. United States (1925), the Court commented that if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant. Further, in Draper v. United States (1959), the Court noted that probable cause is defined as more than mere suspicion; it exists when the facts and circumstances within the officer’s knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed. Probable cause focuses on whether (1) the property to be seized is connected with criminal activity and (2) it can be found in the place to be searched (del Carmen, 2007).

There is no requirement that the officer provide information to support issuance of the warrant beyond reasonable doubt. However, the officer must show more than mere suspicion. In New York v. P.J Video, Inc. (1986), the Court ruled that probable cause means less than evidence which would justify condemnation, and finely tuned standards such as beyond a reasonable doubt or by the preponderance of the evidence, is useful in formal trials but have no place in the magistrate’s decision.

Second, a judicial official must issue and sign the search warrant. In most states, statutory law identifies who may issue a search warrant and magistrates in many states perform this duty. Requiring a judicial official to review and issue the search serves to underscore the Fourth Amendment’s balance between protecting a citizen’s constitutional right and unreasonable governmental intrusion. The Court noted in Johnson v. United States (1948) “that inferences must be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the office competitive enterprise of ferreting out crime” (pp.13–14). Most judges and magistrates are considered neutral and detached. In Coolidge v. New Hampshire (1971), the Court held that a state attorney general cannot issue a search warrant as acting as the chief prosecutor is more inclined to side with police officers and may not issue a search warrant. The Court also held in Connally v. Georgia (1977) that a magistrate who receives a fee when issuing a warrant but not when denying one is not neutral and detached.

Third, the constitution requires that the officer seeking the warrant support probable cause by oath or affirmation. Although it may be apparent that this component is inherent in seeking the warrant by the officer, the requirement serves to defend a potential rebuttable presumptions made by a defense attorney, asserting evidence that the officer made false statements and recklessly disregarded the truth. The magistrate will only issue a warrant based on the affidavit that probable cause for the warrant exists. In order for the magistrate to make the independent evaluation, the affidavit must contain more than conclusions. The affidavit must allege facts showing that the evidence will be found in the place to be searched. To establish probable cause supporting oaths must be based on recent information ( United States v. Leon, 1984), which may be based on oral statements and the expectation of the imminent arrival of contraband.

Fourth, the constitution requires the officer seeking a search warrant must “particularly” describe in the warrant the place in which the search is to be performed and the items to be seized. The location of evidence to be searched does not have to be specified with absolute certainty. In Steele v. United States (1925), the Court ruled that it is enough if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended. The items identified in the warrant, however, should be described with sufficient detail that a reasonable officer would know where to look for them. If a description of the items to be seized is too broad, the principle of “particularity” is not met under the meaning of the Fourth Amendment. In Stanford v. Texas (1985) a general description of the items to be seized included books, records, cards, pamphlets, lists, and memos, regarding the Communist Party was found to be too broad the Court. Conversely, in Andresen v. Maryland (1976), the Court found that when identifying and specifying items to be seized during the search and adding the phrase, together with other fruits, instrumentalities, and evidence of crime, does not invalidate the search warrant.

These four requirements, as identified in the Court’s decisions, ensure that “unreasonable” searches and seizures are not performed by governmental officials. Additional components in executing the warrant may also be required. For example, conditions can change fast and items identified in the warrant may not be in the place initially identified. The Court has not identified the time period for executing a search warrant, but it is logical to conclude that the longer the delay in executing the search warrant the higher the likelihood exists that the evidence may be moved or become “stale.” Therefore, many states have legislated that a valid search warrant issued by a magistrate must be executed within a certain time period to support probable cause. Further, officers acting in good faith when executing a signed warrant do not contravene the constitution. The Court held in United States v. Leon (1984) that officers acted in accordance with good faith when they executed a valid search warrant signed by a detached magistrate but ultimately found to be invalid. The Court opined that the evidence will be admissible because the officer executed the warrant in good faith.

Qualified Immunity

A citizen who claims that a police officer violated their constitutional rights may file a civil lawsuit to seek redress in accordance with §1983. An officer may assert a defense in accordance with the judicially created defense known as qualified immunity. There are two reasons for granting qualified immunity. First, without such immunity there would be a disincentive for officers to act in areas of constitutional uncertainty, even though their acts may later be judged constitutionally permissible. Fear of boldly crossing an ambiguous legal line would hinder officers in aggressively enforcing the law. Granting qualified immunity encourages reasonable officers to enforce the law vigorously within constitutional boundaries. Of course, acting outside the boundaries of the constitution de-immunizes the officer.

Second, immunity for criminal justice personnel is provided to avoid trial and even discovery in some cases. This is premised on the philosophy that immunity issues should be resolved prior to trial. The question that frequently emerges, however, is whether an officer’s actions were reasonable under the circumstances, or whether they violated the plaintiff’s constitutional rights. For example, whether a search is reasonable or unreasonable under the circumstances and a reasonable officer would know that it is unreasonable may influence the court to allow a jury to determine the issue at trial.

The precedent-setting case which grants qualified immunity to criminal justice personnel is Harlow v. Fitzgerald (1982). The U.S. Supreme Court determined that the sole inquiry into whether an officer would be entitled to qualified immunity is whether a reasonable officer should have known that he was violating the constitutional rights of the plaintiff. Determining the reasonableness of an officer’s actions can be problematic, and this issue was answered in Anderson v. Creighton (1987). Police officers and a Federal Bureau of Investigation (FBI) agent conducted a warrantless search of the plaintiff’s house. Although mistaken, the officers believed that a bank robbery suspect was hiding in the home. The officers entered the home with firearms drawn, assaulted the plaintiff’s daughter, and knocked the plaintiff to the ground. The plaintiff was arrested and detained overnight in jail, although no charges were filed. The plaintiff filed suit and the FBI agent filed a motion for summary judgment based on probable cause to enter the home. The lower court granted summary judgment, but on appeal, the Court of Appeals reversed, holding that Anderson was not eligible for summary judgment. In a 6-3 decision, the U.S. Supreme Court reversed the appellate court’s decision and held that the principles of qualified immunity require that Anderson be permitted to argue that he is entitled to summary judgment if in light of the clearly established principles governing warrantless searches, he could, as a matter of law, reasonably have believed that the search of the Creighton’s home was lawful. It should first be determined whether the alleged actions are actions that a reasonable officer could have reasonably believed lawful. If they are, then dismissal prior to discovery is required. If they are not, and if the actions Anderson claims he took are different from those alleged and are not reasonable, then limited discovery may be necessary.

The Anderson decision established the platform for the test of the “reasonable” officer which was assessed further in Malley v. Briggs (1986). In Malley, the plaintiff claimed that his constitutional rights were violated when a state trooper obtained a warrant to arrest him based on an intercepted phone conversation that was part of a drug investigation. The charges were dropped and the plaintiff sued under §1983 for unlawful arrest. The Court examined whether a reasonable officer could believe entry into the home was justified by assessing the officer’s actions in accordance with “objective reasonableness,” and took into account the specifics of the law and the facts known to the officer. The standard used by the courts is “whether a reasonably well-trained officer in the same position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.” When an arrest warrant lacks probable cause, liability is proper in accordance with the Harlow decision.

The U.S. Supreme Court further addressed the issue of qualified immunity for police officers in Saucier v. Katz (2001). Katz was protesting a speech of then Vice President Al Gore at a military base. He was approaching the podium when two military police officers grabbed him and escorted him away and into a van. Katz complained that the officers used excessive force, although he sustained no injuries. He filed a civil rights claim, asserting that his Fourth Amendment rights had been violated. The officers asserted a defense of qualified immunity. The Supreme Court granted certiorari to address the requisite analysis in determining qualified immunity in situations involving excessive force and reversed the appellate court’s holding. The Court reemphasized that the doctrine of qualified immunity protects government officials performing discretionary functions from liability as long as their conduct does not violate the constitutional rights of another and further supported the Supreme Court’s decision in Anderson  v. Creighton (1987).

The U.S. Supreme Court reexamined the qualified immunity doctrine in their assessment in Pearson et al. v. Callahan (2009). After Pearson’s conviction was overturned by the Utah Court of Appeals for possession and distribution of drugs, which he sold to an undercover informant in his house, he brought a §1983 allegation asserting that his Fourth Amendment rights had been violated by supervising officers of the informant. The officers did not obtain a search warrant, but Pearson voluntarily admitted the informant into his house. The federal district court granted qualified immunity to the officers under the “consent-once-removed” doctrine, which allows a warrantless police entry into a home when consent to enter has already been granted. The court concluded that the officers were entitled to qualified immunity because they reasonably believed that the doctrine authorized their conduct.

Adhering to the procedure established in the Saucier decision, the Tenth Circuit Court of Appeals denied qualified immunity for the officers, holding that the consent-once-removed doctrine was inappropriately applied, given the facts of the incident. The court further held that the officer’s conduct was unlawful because they had not first obtained a warrant, the respondent had not consented to their entry, and any entry by an informant did not apply to the officers. The Court granted certiorari to address whether Saucier should be overruled in light of widespread criticisms. In a unanimous vote by the Court, Justice Alito delivered the opinion. The Court ruled that stare decisis does not preclude them from determining whether the Saucier procedure should be modified or abandoned. Reexamining a precedent is appropriate where a departure would not upset past decisions. In reviewing the Saucier protocols, the Court stated that they were beneficial but should not be regarded as mandatory in all cases. The Court determined that the Saucier protocols frequently hamstring judicial resources and make it more difficult for a party to appeal a decision. The Court modified their past decision and authorized more flexibility for judges in the lower courts to determine the facts of each case and to determine the order of decision making that will best facilitate the fair and efficient disposition of each case. The Court’s decision does not prevent lower courts from still applying Saucier, rather it recognizes that they should have discretion to decide whether the procedure is worthwhile in a particular case.

Finally, the Court held that the officers were entitled to qualified immunity because it was not clearly established at the time of the search that their conduct was unconstitutional. The Court maintained that the consent-once removed doctrine had been accepted by two state supreme courts and three federal appellate courts and none of the courts had issued a contrary decision.

Good Faith Defense

The good faith defense is not authorized in state tort claims but is commonly used in civil liability lawsuits by defendant officers. The defense can be asserted by public officials, but not by government agencies, if the plaintiff can show that the injury can be linked to a policy or custom.

Good faith is an affirmative defense based on a subjective standard that is closely tied to the trial court’s discretionary powers. The term has been mistakenly referred to as acting without intent to do wrong, or a lack of evil intention on the part of the officer. More precisely, asserting a good faith defense has nothing to do with the intentions of the officer, but asserts the actions of an officer to be “acting in good faith” in accordance with the law at the time of the incident. Linked to the Harlow decision, the standard that emerges is whether the officer, at the time the act was committed, violated a clearly established statutory right of which a reasonable person would have known. There are several factors the court will consider when scrutinizing the officer’s actions: (1) whether the officer’s actions were based on departmental policy and regulations; (2) whether the officer was acting pursuant to a valid law that was later invalidated by a court; (3) whether the officer was acting on the orders of a supervisor and believed the order to be valid; and (4) whether the officer was acting on the advice of legal counsel and believed the advice was valid (del Carmen, 2007).

This is a narrow defense arising out of alleged illegal searches and seizures, false arrests, and false imprisonment. It is available to the officers in both state tort actions and §1983 litigation, asserting that their actions were taken in good faith in accordance with the law at the time. Plaintiffs claiming that officers violated their Fourth Amendment rights by conducting an illegal search or seizure must show that the officer lacked probable cause. Immunity can be given to the officer if he or she can show that he or she had probable cause at the time.

Recall that in Malley, the Supreme Court held that immunity would be denied where no reasonable officer could have believed that he or she had probable cause to obtain a warrant. Defendants seeking immunity based on probable cause have followed the Supreme Court’s decision in Anderson rather than Malley.

In Groh v. Ramirez (2004), the Court further addressed the issue of qualified immunity, probable cause, and securing a search warrant. Groh, an agent of the Bureau of Alcohol, Tobacco, and Firearms (BATF), applied for a warrant to search Ramirez’s ranch, where it was reported by an informant that there was a stockpile of weapons on the ranch, including automatic weapons, grenades, a grenade launcher, and a rocket launcher. Groh applied for a warrant to a magistrate judge. In an affidavit supporting the application, Groh listed the weapons to be searched on the ranch and the court found probable cause for the search and signed the warrant. The application described the objects and items to be searched and seized but the warrant did not. Groh was required to report those items but he failed to provide a description of the ranch. Neither the application nor the affidavit was attached to the warrant, and the warrant did not incorporate either of those documents by reference.

Groh and other agents conducted the search at the ranch the next day. The search was not fruitful and Groh left a copy of the warrant with Ramirez’s wife, although he did not give her a copy of the application or affidavit. Later the police faxed a copy of the application to Ramirez’s attorney. Ramirez sued Groh and the other officers, claiming that they had violated his Fourth Amendment rights. The trial court found in favor of Groh, holding that the warrant was valid and that even if it was invalid, he was entitled to qualified immunity. Ramirez appealed the decision and the appellate court reversed the decision. Groh appealed to the U.S. Supreme Court to address the issue of qualified immunity.

The Court found that the warrant was invalid because it did not describe with specificity the items to be seized. The warrant was deficient and Ramirez had been denied information that outlined the scope of the search. Groh had a duty to ensure that the warrant was properly construed. The Court denied qualified immunity to Groh, stating that such immunity applied when a reasonable officer could have believed the warrant plainly complied with the Fourth Amendment’s particularity requirement. The existence of the BATF’s policy on invalid warrants proved to be detrimental to Groh. The Court stated that he should have known that he could not execute a patently defective warrant. Even a cursory review would have revealed a glaring deficiency that any reasonable police officer would have known was unconstitutional. A law enforcement officer had no right to qualified immunity if it would have been clear to a reasonable officer that his conduct was unlawful.

Qualified immunity applies to the discretionary functions of officers and is available on an individual basis. It is an affirmative defense made by an officer through his or her counsel. As these cases show, the court will make their decisions on a case-by-case basis. The key to being awarded qualified immunity includes being proactive prior to performing the duties of a police officer. When asserting a claim of qualified immunity, the officer must show that he or she was following the established law at the time of the incident. This suggests that officers actually are knowledgeable about state and constitutional law. Officers must show that their actions were reasonable under the circumstances and that a reasonably trained officer would know that the conduct was constitutional or unconstitutional, depending on the conduct. These factors should be addressed in agency policy and procedures, as demonstrated in the Groh decision.

Messerschmidt v. Millender

Arising from issues surrounding securing a search warrant, principles for granting qualified immunity were further described by the U.S. Supreme Court in Messerschmidt v. Millender (2012). Shelly Kelly reported to the police that her boyfriend, Jerry Bowen, assaulted her. Kelly decided to end a romantic relationship with Bowen and move out of her apartment. Kelly had been assaulted by Bowen previously and he had an extensive criminal history and associations with a local gang. Kelly requested police protection during the move and several officers responded while she gathered her belongings but they had to leave to respond to an emergency call. Bowen suddenly appeared after the police left, grabbed Kelly, screamed at her to never call the police on him, attempted to throw her over a second floor railing but Kelly resisted. Kelly managed to free herself from Bowen and ran to her car. Bowen was able to retrieve a sawed-off shotgun and ran in front of Kelly’s car and threatened to kill her if she left. Kelly accelerated the car, Bowen fired the shotgun five times, which blew out the tires of the vehicle, but Kelly managed to escape. Kelly reported the assault to the police, provided a photo of him, and advised the police that he was active member of the Mona Park Crips, a local street gang.

Detective Messerschmidt interviewed Kelly and she provided information about the assault, provided information about Bowen’s association with the gang, informed him that Bowen may be residing at his foster mother’s house (Millender), and provided the address. Messerschmidt performed a background check on Bowen and found that he had been arrested 31 times, 9 of these arrests were for firearm-related offenses, 6 for violent crimes, including 3 arrests for assault with a deadly weapon. Further, the background check revealed that Bowen had ties to two local gangs and confirmed his residence at Millender’s address.

Detective Messerschmidt prepared two search warrants to search the Millender residence. The first affidavit detailed detective Messerschmidt’s extensive law enforcement experience, his previous training, his experience on a “specialized unit” investigation gang-related crimes and behaviors, and his specialized training in the field of gang-related crimes and shootings. The second affidavit, integrated with the first, described the components of probable cause which supported Messerschmidt’s belief to authorize the search. The second affidavit specified the details of the search at the Millender’s residence, descriptions of the Bowen’s assault on Kelly, the background check information that was performed on Bowen, that Bowen had gang ties, that Bowen had an extensive criminal arrest history, and that the search included weapons that were detailed in the warrant. The affidavit also detailed the concern for safety of the community based on Bowen’s previous criminal history and possessions of firearms, and requested a nighttime search. Prior to submitting the affidavit, Messerschmidt had the documents reviewed by his sergeant, his lieutenant, and the assistant district attorney, who approved it. The magistrate authorized the search warrant and the nighttime search.

The warrants were served 2 days later by Messerschmidt and the members of the Emergency Response Team. Mrs. Millender, in her 70s, met the officers at the door with her grandson and daughter. Bowen was not at the residence. The search resulted in confiscation of Millender’s shotgun, a California Social Security Services letter addressed to Bowen, and a box of 45-caliber ammunition. Millender legally possessed the shotgun. Bowen was arrested 2 weeks later when he was found hiding under a bed in a motel room.

Millender filed a §1983 lawsuit, claiming that the search was overbroad by requesting to search for all weapons, that the incident stemmed from a domestic violence dispute, that the search lacked probable cause, that Bowen was suspected of possessing a saw-offed shotgun, and that Millender had nothing to do with the incident. The lower district federal court found that the warrant was valid, Messerschmitt’s conduct was reasonable, and that there was probable cause to believe that Bowen was at the residence, supporting a nighttime search. Millender appealed and the appellate court for the Ninth Circuit agreed that Messerschmidt lacked probable cause for the search warrant and that he was not entitled to “qualified immunity” because any officer would have known that probable cause did not exist beyond the gun used in the assault and that there was no evidence linking the domestic violence investigation with the search. The appellate court remanded the case back to the lower court with new instructions and Messershcmidt appealed to the U.S. Supreme Court and they granted certiorari.

The Court’s Rationale

The Court addressed the issue of whether a police officer is entitled to qualified immunity when he or she obtains a valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun. The Court overturned the Ninth Circuit, and Chief Justice Roberts wrote the opinion of the Court. In a 6-3 decision, other Justices (Scalia, Kennedy, Thomas, Alito, and Breyer) wrote a short concurrence, the Court held that the officers were entitled to qualified immunity as to both the firearm- and gang-related materials sought in the warrant. Regarding the former, Justice Roberts rejected the notion that the officers were limited to seeking only the sawed-off shotgun because it was known to be the one used in the crime. Given all the facts set out in the warrant—including Bowen’s gang membership and his attempted murder in public of someone because she had called the police on him—an officer would not be unreasonable in concluding that the sawed-off shotgun was not the only firearm Bowen owned. Moreover, the fact that California law allows a warrant to be issued for items possessed with the intent to commit a public offense further supported the search for all firearms and firearm-related materials. The Court’s conclusion regarding the firearms was joined by seven Justices, with only Justices Sotomayor and Ginsburg dissenting.

The Court further held that the officers were entitled to immunity for the search for gang-related material, though on that point Justice Kagan parted ways and joined the other two dissenters. Chief Justice Roberts first rejected the notion that the officers were unreasonable in believing that Bowen’s gang membership had anything to do with the crime, dismissing the dissenters’ reliance on the officers’ later deposition testimony as both subjective and beyond the scope of the affidavit and warrant. The Court found compelling the fact that the officers sought and obtained approval from a police superior and deputy district attorney and that a magistrate had approved the warrant. The Court criticized the Ninth Circuit’s refusal to credit that conduct, and the lower court’s imposition on the officers of an independent duty to ensure at least a colorable basis for probable cause, as a misreading of Malley.

Implications

The Court’s decision in Messerschmidt reveals several significant core principles in the criminal and civil law. First, in determining whether Messerschmidt possessed probable cause, as required by the Fourth Amendment, it appears that the Court has expanded the interpretation of what constitutes probable cause. What serves as evidence under probable cause has been murky but recall probable cause previously has been defined as a direct connection between the evidence to the elements of a crime. One of the issues in Messerschmidt was whether the government had probable cause to search for gang evidence in a case involving a domestic assault by a gang member. Justice Roberts referred to the Court’s prior decision in Warden Penitentiary v. Hayden (1967) noting that the Fourth Amendment does not require that 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 and conviction. Chief Justice Roberts concluded that a reasonable officer could have believed that the gang evidence discovered in the house would assist in helping to show that the evidence belonged to the gang member. Additionally, Chief Justice Roberts wrote that it was not unreasonable for an officer to conclude that there was “fair probability” that the firearms owned by Bowens, the evidence demonstrating his gang membership, might prove helpful in impeaching Bowen or rebutting various defenses he could raise at trial.

The comments of Chief Justice Roberts mark an expansion of the probable cause standard. In Illinois v. Gates (1983), the Court held that probable cause is a fluid concept, turning on the assessment of probabilities in a particular factual situation and that probable cause is a probability and not a prima facie showing of criminal activity. The Court applied the totality of circumstances test in Gates, stating that what is needed is a “fair probability” that contraband or evidence of a crime will be found in a particular case. In Messerschmidt, the Court applied the principle of a “fair probability” to connect the stated evidence in the search warrant to a charged crime but also applied the principle to include impeachment evidence which might be helpful to assisting the prosecutor at trial. Based upon the fair probability standard, Messerschmidt now allows search warrants to be obtained for all sorts of evidence that might be impeachment evidence and allows the evidence to be used to counter defenses raised by a defendant, which have little to do with the elements of the crime or the main factors of the case.

Second, a slight shift in emphasis related to the good faith exception emerged from the Court’s decision in Messerschmidt. The Court has previously held that when an officer relies on a search warrant issued by a neutral magistrate, it is the clearest indication that the officer acted in an objectively reasonable manner or acted with “objective good faith” ( United States v. Leon, 1984). Further in Malley, the Court held that an exception allowing a lawsuit to progress when it is obvious that no reasonably competent officer would have concluded that a warrant should be issued. Shield from immunity is lost when the warrant lacked probable cause. The exception that officers acted in accordance with the good faith rule is rare and the threshold for establishing the exception is a high one. Chief Justice Roberts, however, concluded that the good faith exception, when seeking a search warrant, is now the rule rather than the exception. Chief Justice Roberts commented that in the ordinary case, an officer cannot be expected to question the magistrate’s probable cause determination because it is the magistrate’s responsibility to determine whether the officer’s allegations establishes probable cause and, if so, to issue a warrant comporting with the requirements of the Fourth Amendment. Roberts noted that the facts in this case do not fall within a narrow exception of the good faith rule, rather it was reasonable for an officer to believe that there was probable cause to search for all firearms, firearm-related materials, and gang-related items.

The Court distinguished this case from their decision in Groh v. Ramirez (2004), in which a “nonsensical” warrant was so plainly deficient that even a cursory reading would have shown that it failed the Fourth Amendment’s particularity requirement, rendering the cases “not remotely similar” and that “Groh did not control the result here.” Summarizing the issue as whether the magistrate here so obviously erred in approving the warrant that the officers should have recognized the error, Chief Justice Roberts in Messerschmidt affirmed that such situations are “rare,” and that this was not one of them. The Court concluded that a reasonable officer could have believed that additional guns as well as gang-related material would be found at the location and that an objectively reasonable office may conclude that it was objectively reasonable to search for such items based on the information provided. The shift in the Court’s holding is significant as it provides new language and applies when an officer is asserting qualified immunity and when seeking the search warrant. Of equal importance is the Court’s narrowing the scope of the Groh decision. As Chief Roberts noted, Groh applies to errors in warrants that are visible at a simple glance or cursory reading, unlike what occurred in the instant case.

Third, further supporting that the officers requested a search warrant based on probable cause and acted in good faith, supporting their claim of qualified immunity, was the fact that detective Messerschdmit took “every step that could be reasonably expected.” The Ninth Circuit Court of Appeals used the Groh decision to deny Messerschmidt’s motion for qualified immunity. In reversing the Ninth Circuit’s decision, the Court concluded that it gave no weight to the fact that Messerschmidt completed a thorough investigation prior to submitting it to the magistrate which included acquiring knowledge of the assault and Bowen’s background by interviewing Kelly and completed a background check of Bowen’s past arrest and criminal history, which confirmed the fact that Bowen was a gang member of the Dodge City Crips. Further, Messerschmidt specified what items were to be seized and their location at the Millender residence. In support of granting the search warrant, and in accordance with the Malley decision, Messerschmidt provided written articulation of his: past experience of 14 years as a law enforcement officer; prior experience on a specialized unit investigating gang-related crimes and arresting gang members in hundreds of arrests; and that he had received specialized training in the field of gang-related crimes and gang-related shootings. Finally, Messerschmidt, submitted the search warrant to two supervisors and the assistant district attorney for their review, and they all agreed with his assessment of probable cause. Noting these components, the Court opined that a contrary conclusion would mean that not only was Messerschmidt incompetent but that his supervisors, the assistant district attorney, and the magistrate were as well. The Court found these components pertinent in assessing whether Messerschmdit could have held a reasonable belief that the warrant was supported by probable cause.

The Merserschmidt decision was decided in deference to law enforcement. The Court has expanded the legal principle of probable cause for seeking a search warrant, expanded the good faith rule, while simultaneously reformatting the qualified immunity test. An officer who obtains a warrant supported by probable cause and demonstrates with a fair probability the evidence to be seized will be shielded from liability through an assertion of qualified immunity. It is only when an officer is plainfully incompetent and knowingly violates the law that liability will attach. Second, to incentivize officers, the Court emphasized that the Fourth Amendment requires probable cause based on articulable rationale in order to obtain a legitimate search warrant. Officers who fully document their belief and adhere to their training, experience, and document this in their affidavit, will, with a high probability demonstrate that they acted in good faith and acted in an objectively reasonable manner, ensuring the likelihood that a magistrate will authorize the warrant. Third, and simultaneously, officers will also ensure that they are protected from liability and will subsequently enhance the probability that a court will grant them qualified immunity from civil liability. It is too early to comment on the full significance of the decision, but the holding could reflect a turning point for Fourth Amendment litigation, the qualified immunity doctrine and may more broadly define constitutional tort litigation (Laurin, 2012).