Lead Opinion
delivered the opinion of the Court.
The question presented is whether a federal law enforcement officer who participates in a search that violates the Fourth Amendment may be held personally liable for money
I
Petitioner Russell Anderson is an agent of the Federal Bureau of Investigation. On November 11, 1983, Anderson and other state and federal law enforcement officers conducted a warrantless search of the home of respondents, the Creighton family. The search was conducted because Anderson believed that Vadaain Dixon, a man suspected of a bank robbery committed earlier that day, might be found there. He was not.
The Creightons later filed suit against Anderson in a Minnesota state court, asserting among other things a claim for money damages under the Fourth Amendment, see Bivens v. Six Unknown Fed. Narcotics Agents,
The Creightons appealed to the Court of Appeals for the Eighth Circuit, which reversed. Creighton v. St. Paul,
Anderson filed a petition for certiorari, arguing that the Court of Appeals erred by refusing to consider his argument that he was entitled to summary judgment on qualified immunity grounds if he could establish as a matter of law that a reasonable officer could have believed the search to be lawful. We granted the petition,
II
When government officials abuse their offices, “action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees.” Harlow v. Fitzgerald,
The operation of this standard, however, depends substantially upon the level of generality at which the relevant “legal rule” is to be identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of “clearly established law” were to be applied at this level of generality, it would bear no relationship to the “objective legal reasonableness” that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights. Harlow would be transformed from a guarantee of immunity into a rule of pleading. Such an approach, in sum, would destroy “the balance that our cases strike between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their.duties,” by making it impossible for officials “reasonably [to] anticipate when their conduct may give rise to liability for damages.” Davis,
Anderson contends that the Court of Appeals misapplied these principles. We agree. The Court of Appeals’ brief discussion of qualified immunity consisted of little more than an assertion that a general right Anderson was alleged to have violated — the right to be free from warrantless searches of one’s home unless the searching officers have probable cause and there are exigent circumstances — was clearly established. The Court of Appeals specifically refused to consider the argument that it was not clearly established that the circumstances with which Anderson was confronted did
It follows from what we have said that the determination whether it was objectively legally reasonable to conclude that a given search was supported by probable cause or exigent circumstances will often require examination of the information possessed by the searching officials. But contrary to the Creightons’ assertion, this does not reintroduce into qualified immunity analysis the inquiry into officials’ subjective intent that Harlow sought to minimize. See Harlow,
The principles of qualified immunity that we reaffirm today require that Anderson be permitted to argue that he is entitled to summary judgment on the ground that, 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 Creightons’ home was lawful.
In addition to relying on the reasoning of the Court of Appeals, the Creightons advance three alternative grounds for affirmance. All of these take the same form, i. e., that even if Anderson is entitled to qualified immunity under the usual principles of qualified immunity law we have just described, an exception should be made to those principles in the circumstances of this case. We note at the outset the heavy burden this argument must sustain to be successful. We have emphasized that the doctrine of qualified immunity reflects a balance that has been struck “across the board,” Harlow, supra, at 821 (Brennan, J., concurring). See also Malley,
First, and most broadly, the Creightons argue that it is inappropriate to give officials alleged to have violated the Fourth Amendment — and thus necessarily to have unreasonably searched or seized — the protection of a qualified immunity intended only to protect reasonable official action. It is not possible, that is, to say that one “reasonably” acted unreasonably. The short answer to this argument is that it is foreclosed by the fact that we have previously extended qualified immunity to officials who were alleged to have violated the Fourth Amendment. See Malley, supra (police officers alleged to have caused an unconstitutional arrest); Mitchell v. Forsyth,
For the same reasons, we also reject the Creightons’ narrower suggestion that we overrule Mitchell, supra (extending qualified immunity to officials who conducted warrantless wiretaps), by holding that qualified immunity may never be extended to officials who conduct unlawful warrant-less searches.
Finally, we reject the Creightons’ narrowest and most Procrustean proposal: that no immunity should be provided to police officers who conduct unlawful warrantless searches of innocent third parties’ homes in search of fugitives. They rest this proposal on the assertion that officers conducting such searches were strictly liable at English common law if the fugitive was not present. See, e. g., Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K. B. 1765). Although it is true that we have observed that our determinations as to the scope of official immunity are made in the light of the “common-law tradition,”
The approach suggested by the Creightons would introduce into qualified immunity analysis a complexity rivaling that which we found sufficiently daunting to deter us from tailoring the doctrine to the nature of officials’ duties or of the rights allegedly violated. See supra, at 642-643. Just in the field of unlawful arrests, for example, a cursory examination of the Restatement (Second) of Torts (1965) suggests that special exceptions from the general rule of qualified immunity would have to be made for arrests pursuant to a warrant but outside the jurisdiction of the issuing authority, §§ 122, 129(a), arrests after the warrant had lapsed, §§ 122, 130(a), and arrests without a warrant, § 121. Both the complexity and the unsuitability of this approach are betrayed by the fact that the Creightons’ proposal itself does not actually apply the musty rule that is purportedly its justification but instead suggests an exception to qualified immunity for all fugitive searches of third parties’ dwellings, and not merely (as the English rule appears to have provided) for all unsuccessful fugitive searches of third parties’ dwellings. Moreover, from the sources cited by the Creightons it appears to have been a corollary of the English rule that where the search was successful, no civil action would lie, whether or not probable cause for the search existed. That also is (quite pru
The general rule of qualified immunity is intended to provide government officials with the ability “reasonably [to] anticipate when their conduct may give rise to liability for damages.” Davis,
For the reasons stated, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Notes
The Creightons also named other defendants and advanced various other claims against both Anderson and the other defendants. Only the Bivens claim against Anderson remains at issue in this case, however.
The dissent, which seemingly would adopt this approach, seeks to avoid the unqualified liability that would follow by advancing the suggestion that officials generally (though not law enforcement officials, see post, at 654, 661-662, and officials accused of violating the Fourth Amendment, see post, at 659-667) be permitted to raise a defense of reasonable good faith, which apparently could be asserted and proved only at trial. See post, at 653. But even when so modified (and even for the fortunate officials to whom the modification applies) the approach would totally abandon the concern — which was the driving force behind Harlow’s substantial reformulation of qualified-immunity principles — that “insubstantial claims” against government officials be resolved prior to discovery and on summary judgment if possible. Harlow,
The Creightons argue that the qualified immunity doctrine need not be expanded to apply to the circumstances of this case, because the Federal
These decisions demonstrate the emptiness of the dissent’s assertion that “[tjoday this Court makes the fundamental error of simply assuming that Harlow immunity is just as appropriate for federal law enforcement officers ... as it is for high government officials.” Post, at 654 (footnote omitted). Just last Term the Court unanimously held that state and federal law enforcement officers were protected by the qualified immunity described in Harlow. Malley v. Briggs,
Of course, it is the American rather than the English common-law tradition that is relevant, cf. Malley, supra, at 340-342; and the American rule appears to have been considerably less draconian than the English. See Restatement (Second) of Torts §§ 204, 206 (1965) (officers with an arrest warrant are privileged to enter a third party’s house to effect arrest if they reasonably believe the fugitive to be there).
Noting that no discovery has yet taken place, the Creightons renew their argument that, whatever the appropriate qualified immunity standard, some discovery would be required before Anderson’s summary judgment motion could be granted. We think the matter somewhat more complicated. One of the purposes of the Harlow qualified immunity standard is to protect public officials from the “broad-ranging discovery” that can be “peculiarly disruptive of effective government.”
Dissenting Opinion
with whom
This case is beguiling in its apparent simplicity. The Court accordingly represents its task as the clarification of the settled principles of qualified immunity that apply in damages suits brought against federal officials. Its opinion, however, announces a new rule of law that protects federal agents who make forcible nighttime entries into the homes of innocent citizens without probable cause, without a warrant, and without any valid emergency justification for their warrantless search. The Court stunningly restricts the constitutional accountability of the police by creating a false dichotomy between police entitlement to summary judgment on immunity grounds and damages liability for every police misstep, by responding to this dichotomy with an uncritical application of the precedents of qualified immunity that we have developed for a quite different group of high public office holders, and by displaying remarkably little fidelity to the countervailing principles of individual liberty and privacy that infuse the Fourth Amendment.
I
The Court of Appeals understood the principle of qualified immunity as implemented in Harlow v. Fitzgerald, 457 U. S.
II
Accepting for the moment the Court’s double standard of reasonableness, I would affirm the judgment of the Court of Appeals because it correctly concluded that petitioner has not satisfied the Harlow standard for immunity. The inquiry upon which the immunity determination hinges in this case illustrates an important limitation on the reach of the Court’s opinion in Harlow. The defendants’ claims to immunity at the summary judgment stage in Harlow and in Mitchell v. Forsyth,
The Court’s decision today, however, fails to recognize that Harlow’s removal of one arrow from the plaintiff’s arsenal at
The considerations underlying the formulation of the immunity rule in Harloiu for Executive Branch officials, however, are quite distinct from those that led the Court to its prior recognition of immunity for federal law enforcement officials in suits against them founded on the Constitution. This observation is hardly surprising, for the question of immunity only acquires importance once a cause of action is created; the “practical consequences of a holding that no remedy has been authorized against a public official are essentially the same as those flowing from a conclusion that the official has absolute immunity.” Mitchell v. Forsyth,
As every student of federal jurisdiction quickly learns, the Court in Bivens v. Six Unknown Fed. Narcotics Agents,
As the Court of Appeals recognized, assuring police officers the discretion to act in illegal ways would not be advan
In Part III, I explain why the latter alternative is appropriate. For now, I assert the more limited proposition that the Court of Appeals quite correctly rejected Anderson’s claim that he is entitled to immunity under Harlow. Harlow does not speak to the extent, if any, of an official’s insulation from monetary liability when the official concedes that the constitutional right he is charged with violating was deeply etched in our jurisprudence, but argues that he reasonably believed that his particular actions comported with the constitutional command. In this case the District Judge granted Anderson’s motion for summary judgment because she was convinced that the agent had probable cause to enter the Creightons’ home and that the absence of a search warrant was justified by exigent circumstances. In other words, the
The Court of Appeals also was correct in rejecting petitioner’s argument based on the holding in Harlow that the qualified-immunity issue ought to be resolved on a motion for summary judgment before any discovery has taken place.
In this Court, Anderson has not argued that any relevant rule of law — whether the probable-cause requirement
The Court’s decision today represents a departure from the view we expressed two years ago in Mitchell v. Forsyth,
“We do not intend to suggest that an official is always immune from liability or suit for a warrantless search merely because the warrant requirement has never explicitly been held to apply to a search conducted in identical circumstances. But in cases where there is a legitimate question whether an exception to the warrant requirement exists, it cannot be said that a warrantless search violates clearly established law.” Id., at 535, n. 12.
Ill
Although the question does not appear to have been argued in, or decided by, the Court of Appeals, this Court has decided to apply a double standard of reasonableness in damages actions against federal agents who are alleged to have violated an innocent citizen’s Fourth Amendment rights. By double standard I mean a standard that affords a law enforcement official two layers of insulation from liability or other adverse consequence, such as suppression of evidence. Having already adopted such a double standard in applying the exclusionary rule to searches authorized by an invalid warrant, United States v. Leon,
A “federal official may not with impunity ignore the limitations which the controlling law has placed on his powers.”
The Court advances four arguments in support of the position that even though an entry into a private home is constitutionally unreasonable, it will not give rise to monetary liability if a reasonable officer could have believed it was reasonable: First, the probable-cause standard is so vague that it is unfair to expect law enforcement officers to comply with it;
Unquestionably, there is, and always has been, some uncertainty in the application of the probable-cause standard to particular cases. It is nevertheless a standard that has sur
“These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.” Id., at 176.
The suggestion that every law enforcement officer should be given the same measure of immunity as a Cabinet officer
“When a court evaluates police conduct relating to an arrest its guideline is ‘good faith and probable cause.’. . . In the case of higher officers of the executive branch, however, the inquiry is far more complex since the range of decisions and choices — whether the formulation of policy, of legislation, or budgets, or of day-to-day decisions —is virtually infinite. . . . [Sjince the options which a chief executive and his principal subordinates must consider are far broader and far more subtle than those made by officials with less responsibility, the range of discretion must be comparably broad.”
The argument that police officers need special immunity to encourage them to take vigorous enforcement action when they are uncertain about their right to make a forcible entry into a private home has already been accepted in our jurisprudence. We have held that the police act reasonably in entering a house when they have probable cause to believe a fugitive is in the house and exigent circumstances make it impracticable to obtain a warrant. This interpretation of the Fourth Amendment allows room for police intrusion, without a warrant, on the privacy of even innocent citizens. In Pierson v. Ray,
Thus, until now the Court has not found intolerable the use of a probable-cause standard to protect the police officer from exposure to liability simply because his reasonable conduct is subsequently shown to have been mistaken. Today, however, the Court counts the law enforcement interest twice
The Court’s double-counting approach reflects understandable sympathy for the plight of the officer and an overriding interest in unfettered law enforcement. It ascribes a far lesser importance to the privacy interest of innocent citizens than did the Framers of the Fourth Amendment. The importance of that interest and the possible magnitude of its invasion are both illustrated by the facts of this case.
IV
The Court was entirely faithful to the traditions that have been embedded in our law since the adoption of the Bill of Rights when it wrote:
“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home— a zone that finds its roots in clear and specific constitutional terms: ‘The right of the people to be secure in their*668 . . . houses . . . shall not be violated.’ That language unequivocally establishes the proposition that ‘[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ Silverman v. United States,365 U. S. 505 , 511 [1961]. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New York,445 U. S. 573 , 589-590 (1980).24
The warrant requirement safeguards this bedrock principle of the Fourth Amendment, while the immunity bestowed on a police officer who acts with probable cause permits him to do his job free of constant fear of monetary liability. The Court rests its doctrinally flawed opinion upon a double standard of reasonableness which unjustifiably and unnecessarily upsets the delicate balance between respect for individual privacy and protection of the public servants who enforce our laws.
I respectfully dissent.
The Fourth Amendment provides:
“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.”
This theme also pervades our pre-Harlow opinions construing the scope of official immunity in suits brought under 42 U. S. C. § 1983. Those precedents provide guidance for causes of action based directly on the Constitution, for “it would be ‘untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials.’ ” Harlow v. Fitzgerald,
“Because they could not reasonably have been expected to be aware of a constitutional right that had not yet been declared, petitioners did not act with such disregard for the established law that their conduct ‘cannot reasonably be characterized as being in good faith.’ Wood v. Strickland,420 U. S., at 322 .”
Thus, even the immunity of officials whose discretionary duties are broader than those of a law enforcement officer does not extend to conduct which they should have known was contrary to a constitutional norm. Harlow did not change this rule. See
“If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.” Harlow,
Cf. Gomez v. Toledo,
“Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow,
The Court of Appeals in Bivens justified the defense on the basis of the need to protect the officer from the hazards associated with trying to predict whether a court would agree with his assessment that a particular set of facts constituted probable cause. The court explained:
“The numerous dissents, concurrences and reversals, especially in the last decade, indicate that even learned and experienced jurists have had difficulty in defining the rules that govern a determination of probable cause, with or without a warrant. As he tries to find his way in this thicket, the police officer must not be held to act at his peril.” Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,456 F. 2d 1339 , 1348 (CA2 1972) (citations omitted).
“Is it not inferable that the point of the remand [to the Court of Appeals in Bivens] was to ventilate the question of the possible existence of the kind of qualified privilege the Court of Appeals sustained, rather than the issue of immunity?” P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart and Wechsler’s The Federal Courts and the Federal System 1421 (2d ed. 1973).
The Court asserts that this assumption merely reflects our holding last Term in Malley v. Briggs,
“But if the test of ‘clearly established law’ were to be applied at this level of generality, . . . [plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability . . . .” Ante, at 639.
The Court does not consider the possibility that the “objective reasonableness” of the officer’s conduct may depend on the resolution of a factual dispute. Such a dispute may preclude the entry of summary judgment but, despite the Court’s intimation to the contrary, see ante, at 640, n. 2, should not necessarily prevent a jury from resolving the factual issues in the officer’s favor and thereafter concluding that his conduct was objectively reasonable.
He also made this argument in District Court. See Memorandum of Points and Authorities 29, 1 Record A-52.
The Harlow standard of qualified immunity precludes a plaintiff from alleging the official’s malice in order to defeat a qualified-immunity defense. By adopting a purely objective standard, however, Harlow may be inapplicable in at least two types of cases. In the first, the plaintiff can only obtain damages if the official’s culpable state of mind is established. See, e. g., Allen v. Scribner,
The Court’s opinion reveals little, if any, interest in the facts of this case in which the complaint unquestionably alleged a violation of a clearly established rule of law. Instead, the Court focuses its attention on the hypothetical case in which a complaint drafted by a “passably clever plaintiff” is able to allege a “violation of extremely abstract rights.” Ante, at 639, and n. 2. I am more concerned with the average citizen who has alleged that law enforcement officers forced their way into his home without a warrant and without probable cause. The constitutional rule allegedly violated in this case is both concrete and clearly established.
See ante, at 646-647, n. 6.
See Brief for Petitioner 33-34, n. 18.
“We have frequently observed, and our many cases on the point amply demonstrate, the difficulty of determining whether particular searches or seizures comport with the Fourth Amendment.” Ante, at 644.
“Law enforcement officers whose judgments in making these difficult determinations are objectively legally reasonable should no more be held personally liable in damages than should officials making analogous determinations in other areas of law.” Ibid,
“Intense scrutiny, by the people, by the press, and by Congress, has been the traditional method for deterring violations of the Constitution by these high officers of the Executive Branch. Unless Congress authorizes other remedies, it presumably intends the retributions for any violations to be undertaken by political action. Congress is in the best position to decide whether the incremental deterrence added by a civil damages remedy outweighs the adverse effect that the exposure to personal liability may have on governmental decisionmaking. However the balance is struck, there surely is a national interest in enabling Cabinet officers with responsibilities in this area to perform their sensitive duties with decisiveness and without potentially ruinous hesitation.” Mitchell v. Forsyth,
“The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect. As we have already suggested, the good-faith exception, turning as it does on objective reasonableness, should not be difficult to apply in practice. When officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time.” United States v. Leon,
“The question whether they had probable cause depends on what they reasonably believed with reference to the facts that confronted them, as the judge instructed in the passage we quoted earlier. To go on and instruct the jury further that even if the police acted without probable cause they should be exonerated if they reasonably (though erroneously) believed that they were acting reasonably is to confuse the jury and give the defendants two bites at the apple.” Llaguno v. Mingey,
The Court of Appeals described the search of respondents’ home in some detail. Its opinion reads, in part, as follows:
“Because the case was dismissed on Anderson’s motion for summary judgment, we set out the facts in the light most favorable to the Creightons and draw all inferences from the underlying facts in their favor. Adickes v. Kress & Co.,398 U. S. 144 , 158-59 . . . (1970). On the night of November 11, 1983, Sarisse and Robert Creighton and their three young daughters were spending a quiet evening at their home when a spotlight suddenly*665 flashed through their front window. Mr. Creighton opened the door and was confronted by several uniformed and plain clothes officers, many of them brandishing shotguns. All of the officers were white; the Creightons are black. Mr. Creighton claims that none of the officers responded when he asked what they wanted. Instead, by his account (as verified by a St. Paul police report), one of the officers told him to ‘keep his hands in sight’ while the other officers rushed through the door. When Mr. Creighton asked if they had a search warrant, one of the officers told him, We don’t have a search warrant [and] don’t need [one]; you watch too much TV.’
“Mr. Creighton asked the officers to put their guns away because his children were frightened, but the officers refused. Mrs. Creighton awoke to the shrieking of her children, and was confronted by an officer who pointed a shotgun at her. She allegedly observed the officers yelling at her three daughters to ‘sit their damn asses down and stop screaming.’ She asked the officer, What the hell is going on?’ The officer allegedly did not explain the situation and simply said to her, Why don’t you make your damn kids sit on the couch and make them shut up.’
“One of the officers asked Mr. Creighton if he had a red and silver ear. As Mr. Creighton led the officers downstairs to his garage, where his maroon Oldsmobile was parked, one of the officers punched him in the face, knocking him to the ground, and causing him to bleed from the mouth and the forehead. Mr. Creighton alleges that he was attempting to move past the officer to open the garage door when the officer panicked and hit him. The officer claims that Mr. Creighton attempted to grab his shotgun, even though Mr. Creighton was not a suspect in any crime and had no contraband in his home or on his person. Shaunda, the Creighton’s ten-year-old daughter, witnessed the assault and screamed for her mother to come help. She claims that one of the officers then hit her.
“Mrs. Creighton phoned her mother, but an officer allegedly kicked and grabbed the phone and told her to ‘hang up that damn phone.’ She told her children to run to their neighbor’s house for safety. The children ran out and a plain clothes officer chased them. The Creightons’ neighbor allegedly told Mrs. Creighton that the officer ran into her house and grabbed Shaunda by the shoulders and shook her. The neighbor allegedly told the officer, ‘Can’t you see she’s in shock; leave her alone and get out of my house.’ Mrs. Creighton’s mother later brought Shaunda to the emergency*666 room at Children’s Hospital for an arm injury caused by the officer’s rough handling.
“During the melee, family members and friends began arriving at the Creighton’s home. Mrs. Creighton claims that she was embarrassed in front of her family and friends by the invasion of their home and their rough treatment as if they were suspects in a major crime. At this time, she again asked Anderson for a search warrant. He allegedly replied, T don’t need a damn search warrant when I’m looking for a fugitive.’ The officers did not discover the allegedly unspecified ‘fugitive’ at the Creightons’ home or any evidence whatsoever that he had been there or that the Creightons were involved in any type of criminal activity. Nonetheless, the officers then arrested and handcuffed Mr. Creighton for obstruction of justice and brought him to the police station where he was jailed overnight, then released without being charged.” Creighton v. St. Paul,766 F. 2d 1269 , 1270-1271 (CA8 1985) (footnote .and citation omitted).
Because this case involves the rule that should be applied to the conduct of a law enforcement officer employed by the Federal Government, Justice Jackson’s dissenting opinion in Brinegar v. United States,
“These [Fourth Amendment rights], I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.” Id., at 180.
The Court’s holding that a federal law enforcement officer is immune if a reasonable officer could have believed that the search was consistent with the Fourth Amendment raises the same difficulties in application as the Court’s creation in United States v. Leon of a good-faith exception to the exclusionary rule when the police officer’s reliance on an invalid warrant was objectively reasonable:
“Suppose, for example, that the challenge is to a search and seizure conducted by an FBI agent. The defendant shows that the agent was required to be aware of, and fully aware of, all relevant fourth amendment law. Would the reasonable reliance inquiry turn on whether a particular FBI agent’s conduct lived up to the standards expected from someone who was apprised of, or should have been apprised of, relevant fourth amendment law? Or is it enough that the agent’s conduct met the lower standard of the average well-trained police officer? ... If th[e] individualized objective standard is to be the test under Leon, then motions to suppress may well require a far greater expenditure of judicial time than the Court seems to think should be devoted to protecting fourth amendment interests.” Wasserstrom & Mertens, The Exclusionary Rule on the Scaffold: But Was It A Fair Trial?, 22 Am. Crim. L. Rev. 85, 120 (1984) (footnotes omitted).
“It is axiomatic that the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ ” Welsh v. Wisconsin,