Millender v. County of Los Angeles

KOZINSKI, Judge, Before ALEX Chief “a spousal connection with assault and an RYMER, BARRY PAMELA ANN G. deadly weapon.” assault with a Messer- SILVERMAN, GRABER, SUSAN P. affidavit, prepared schmidt entitled FISHER, C. RAYMOND RICHARD C. “Statement Probable Cause.” The affi- TALLMAN, B. JOHNNIE davit contained the following facts: The RAWLINSON, BYBEE, JAY S. assault, victim Shelly Kelly, stated CALLAHAN, CONSUELO M. D. MILAN “dating that she had a relationship” with SMITH, IKUTA, JR. and SANDRA S. suspect, Kelly Bowen. decided to end Judges. Circuit the relationship due to Bowen’s violent temper and because Bowen had previously

Opinion by IKUTA; Judge Dissent physically assaulted her. Because of Bow- CALLAHAN; Judge by Judge Dissent nature, Kelly SILVERMAN. en’s violent asked the Sher- Department protect iffs to send officers to OPINION gathered her while she prop- some of her IKUTA, Judge: Circuit erty from the residence that she and Bow- en requested shared. Once the officers Millender, Augusta Plaintiffs Brenda arrived, (collective- Kelly Millender, began to move her property and William Johnson Millenders”) ly, “the filed this suit under to her ear. approximately twenty After § against County U.S.C. of minutes, the emergen- officers received an Angeles, Angeles Los the Los County leave, cy call and saying they had to would Department, Sheriffs and several individu- return they after handled the call. al Department, members the Sheriffs According Kelly, to as soon as the offi- alleging violations of rights. their civil left, screamed, cers appeared Bowen and complaint Their pur- arose from a search you “I told to never call cops suant to a on me warrant obtained Detective Curt Messerschmidt of the Angeles physically Los bitch!” Bowen Kelly assaulted County Department Sheriffs and executed attempted top throw her over the supervision under the Sergeant Robert railing of the story landing second of their Lawrence. Messerschmidt and Lawrence her, residence. grabbed Kelly, Bowen bit (collectively, deputies”) appeal “the from drag and tried to her the hair back into the district they court’s determination that their residence. Kelly When resisted were not entitled to immunity bracing door, herself against Bowen respect to the alleged overbreadth of grabbed arms, Kelly’s both of Kelly but the search warrant. Because the chal- to slip able out of her shirt and run to lenged sections of the warrant were “so later, her car. Bowen followed seconds lacking indicia of probable cause as to holding now “a black sawed off shotgun render official belief its existence unrea- with a pistol grip.” Standing in front of sonable,” Malley Briggs, car, Kelly’s pointed shotgun Bowen (1986), 89 L.Ed.2d 271 ' shouted, Kelly leave, “If you try to I’ll we affirm. you kill Kelly bitch.” escape was able to

I by leaning over in her flooring seat and the gas. jumped Bowen out way 4, 2003, On November Messerschmidt her, and fired one shot at blowing out the applied for an arrest Jerry Kelly’s front left tire of car. Chasing the Ray St., Bowen at 2234 E. 120th Los An- foot, geles, car on and for warrant to search that Bowen fired four more times address and specified property direction, seize in in Kelly’s missing her each time. safety element of provide an added after, police offi- would Kelly located

Shortly recognized community” her as well as to those immediately as who cers protecting they had been affi- person serving the warrant. The personnel the same emergency call. left for the before that Messer- by stating concluded davit shooting, described Kelly reported sought the items schmidt “believes sawed off as a “black firearm Bowen’s Ray possession Jerry in the will be gave pistol grip,” shotgun with recovery weapon and the Bowen to aid their photos four of Bowen officers prose- in the successful could be invaluable investigation. case, suspect involved cution of information, Messer- be- on this curtailment of further crimes Based and the into a “six of Bowen put photo schmidt ing committed.” Messerschmidt line-up. When pack” affidavit, preparing In addition to Kelly, line-up to she photo showed completed “Search War- Messerschmidt Bowen and circled immediately identified form to authorize the rant and Affidavit” affidavit Messerschmidt’s picture. his in “At- identified search of the residence [Kelly] identified person that “[t]he states property 1” and the seizure of tachment ..., Mona a known Jerry Ray Bowen in “Attachment 2.” Attachment identified Kelly told member.” Crip gang Park searched” the “location identifies ad- Bowen’s current Messerschmidt Angeles. Attach- 2234 E. 120th St. Los St., Angeles. Los E. 120th was 2234 dress categories out two of items ment sets a “Ra requested Messerschmidt paragraph The first and seize. Bowen, arrest because mey Warrant” lists: and identified personally him Kelly knew rifles, any shotguns or of handguns, All assaulted physically who person him as the caliber, any capable firing firearms of or affida According to the at her.1 and shot ammunition, or firearms or devices mod- an “exten vit, conducted Messerschmidt to allow it to fire am- designed ified or using on Bowen search” background sive ammunition, All caliber of munition. records, computer state “departmental cleaning gun parts, gun miscellaneous records, agency records.” other kits, could hold or have holsters which pro and information Using these records being sought. any handgun caliber held confirmed by Kelly, Messerschmidt vided showing the Any receipts paperwork, or in E. 120th St. Bowen resided at 2234 possession ownership, or purchase, Angeles. Los sought. Any fire- handguns being requested affidavit also Messerschmidt’s of own- proof which there is no arm for warrant, giving of the search night service capable firing or ership. Any firearm First, has investigation “the two reasons. ammuni- any to fire caliber chambered in this suspect primary shown tion. Crip to the Mona Park gang case has ties lists: paragraph second The by the provided on information gang based showing gang Articles of evidence street base.” Sec- cal-gang data victim and any or affiliation with membership ond, that “the na- believed Messerschmidt but not limited to Gang to include (Assault Street deadly with a the crime ture of Crips”, “Mona Park any reference to night service to show weapon) goes Cal.Rptr.2d Cal.App.4th authoriz- “Ramey warrant” is a warrant 1. A (2001) suspect People Ramey, Cal.3d ing (citing within home v. the arrest of (1976)). charges filing of criminal Cal.Rptr. before the P.2d 1333 Court, Superior attorney. Goodwin district arrests, including writings graffiti depicting or meanor and was a “third strike gang membership, activity identity. or Third, candidate” under California law.3 personal property tending Articles of to in addition to identifying gun Bowen identity person establish the [sic] used as a black sawed-off shotgun with a Any control of or premise premises. pistol grip, Kelly gave Messerschmidt a photographs or photograph albums de- picture of posing gun. Bowen with the vehicles, picting persons, weapons or lo- Fourth, there was no evidence that Bow- cations, relevant appear which Kelly any en’s assault on way gang- was gang membership, may depict or which subsequent related. testimony, Mes- being sought the item and or believed serschmidt question, answered “No” to the being investigat- in the case evidence you any “So didn’t have reason to believe warrant, may depict ed on this or which that the assault on Kelly sort of a activity. evidence of criminal Addition- crime, gang you?” did ally any gang to include indicia that Before Messerschmidt submitted the would establish persons being warrants and magistrate, affidavit to the warrant, sought in this affiliation or supervisors were reviewed his membership with the “Mona Park station, Sergeant the Sheriffs Lawrence Crips” gang. street addition, and Lieutenant Ornales. In Dep- An additional attached affidavit recounts uty Attorney District signed Janet Wilson experience Messerschmidt’s inves- warrant, the search indicating that she had tigations. The Search Warrant includes reviewed it for probable cause and ap- Messerschmidt’s attestation that the incor- proved it. presented Messerschmidt porated affidavit is true and the property Search Warrant and Affidavit and the described in lawfully Attachment seiz- Warrant, Probable Cause Arrest along able. with their (including attachments the affi- Messerschmidt also drafted a “Probable davit), magistrate. to a Cause Arrest Warrant and Affidavit in approved both warrants and authorized Support Thereof’ to authorize the arrest night service. Bowen, which again states his address At 5:00 a.m. on the St., morning of Novem- as 2234 E. 120th Angeles. Los This 6, 2003, arrest ber application Department’s Sheriffs incorporates Messerschmidt’s affidavit SWAT team served reference. the search and arrest warrants at the 120th St. address. The Messerschmidt was aware of other rele- open SWAT team forced the front security vant facts not included in the affidavit. door, window, broke a front proceeded and First, Kelly explained to Messerschmidt enter, search, and clear the house. The him, gave the address she 2234 E. house, occupants ten including of the St., 120th was the home of Bowen’s foster Millenders, exit, were ordered to which mother, Second, Augusta Millender. Mes- they did. Once the team had SWAT se- serschmidt knew that Bowen had a previ- residence, cured the investigators ous criminal searched summary record and was on the area. probation for While Messerschmidt and spousal battery driving and Law- search, without a license.2 rence participate Bowen also had several did not in the previous felony they convictions and misde- present. were both The investigators Kelly also informed generally Ewing California, Messerschmidt of Bow- 3. See v. 538 U.S. 11, 14-17, 1179, during en's domestic violence record their 155 L.Ed.2d 108 (2003). interview. qualified not entitled were to find Bowen failed conducting the search immunity. pistol with a shotgun sawed-off or a black take Au- However, find and they did

grip. (a II shotgun personal Millender’s gusta a wooden “Mossberg” with 12-gauge black normally juris lack Although we Ea- “American stock), .45 caliber a box of a motion the denial of to consider diction ammunition, Social a letter from and gle” we consider summary judgment, for two to Bowen. Some addressed Services interlocutory mo from such an appeal Messerschmidt, without later, weeks a claim motion is based on tion where the assistance, Bowen arrested SWAT immunity, KRL v. Estate qualified of discovering Bowen day after middle 1184, Cir.2008), Moore, in a motel room. a bed hiding under the defen against other claims even when suit under filed The Millenders below, Pelle Behrens v. pending dants are County of Los against § U.S.C. 834, tier, 312-13, 116 S.Ct. 516 U.S. County Sheriffs Angeles the Los Angeles, (1996). jurisdiction “Our 133 L.Ed.2d 773 Baca, Leroy and 27 Department, Sheriff ..., however, questions is limited to including Angeles County deputies, Los law; extend to claims which it does not As rele- Lawrence. Messerschmidt qualified immunity the determination here, alleged violations the Millenders vant material upon disputed issues of depends Amend- Fourteenth their Fourth and Hartford, v. 204 F.3d fact.” Schwenk cross mo- parties The filed rights. ment (9th Cir.2000). facts are When summary adjudication on the va- tions “we assume the version disputed, warrants. arrest and search lidity of the non-moving material facts asserted ar- concluded that the court The district Groh, Id.; to be correct.” see also v. party valid, grant- rest warrant Ramirez, 540 U.S. summary motion ed the defendants’ (2004). L.Ed.2d 1068 We review the Millenders this issue. The adjudication on legal determinations de district court’s ruling. appealed have not Holloway, novo. Elder 127 L.Ed.2d 344 held that district court also KRL, (1994); for and authorization warrant’s firearms, materi- firearm-related seize all III

als, unconsti- gang-related items was overbroad, that its authori- tutionally but immu “The doctrine of tending to for evidence zation to search from lia government officials nity protects con- premises of the establish control as their damages for civil insofar bility Accordingly, granted the court stitutional. clearly not violate established conduct does summary adju- motion for the Millenders’ rights of which statutory or constitutional gang-related and as to firearm- dication have known.” person would reasonable evidence, mo- granted the defendants’ but — Callahan, U.S. -, -, Pearson v. evidence. The dis- tion as to identification (2009) 808, 815, 172 L.Ed.2d 565 rejected deputies’ the trict court then omitted). (internal po marks A quotation immunity ground the qualified claim of im not entitled to lice officer is objec- actions were deputies’ that the (1) the facts show that the munity if: tively reasonable. con plaintiffs violated a officer’s conduct (2) rights rights; and those timely ap- stitutional Lawrence and

Messerschmidt at the time of the clearly established were court’s determination pealed the district 1024 (1983)). valid, Al- id. at 816. To be a search warrant

alleged violation. See though have discretion to address these we “particularly must also describ[e]” Const, order, prongs see id. we “things to be seized.” amend. U.S. begin by considering in this case whether Groh, IV; see 124 U.S. S.Ct. the Millen- deputies’ conduct violated see id. at 816. rights, ders’ constitutional We read the Fourth Amendment requiring “specificity,” which has two A aspects, “particularity and breadth.” provides: Fourth Amendment The Health, Inc., United States v. SDI Future right people be secure (9th Cir.2009). 568 F.3d “Particu houses, papers, their and ef- persons, larity requirement is the that the warrant fects, against unreasonable searches and clearly sought. must state what is violated, seizures, shall not be and no Breadth requirement deals with the issue, upon shall but Warrants scope by of the warrant be limited cause, affirmation, or supported Oath probable cause on which the warrant is particularly describing place (quoting based.” Id. In re Jury Grand searched, persons things or 10, 1987, Subpoenas Dated Dec. 926 F.2d to be seized. (9th Cir.1991)). 847, 856-57 In determin Const, amend. IV. The ing description whether a warrant’s is suf recognized Court has that a search or sei- ficiently specific to meet these Fourth pursuant zure invalid warrant consti- requirements, Amendment we consider the tutes an invasion of the constitutional following questions: rights subject of that search “at the (1) governmental time of whether cause [the] unreasonable exists to Verdugo-Ur- United States v. all particular seize items of a type intrusion.” de- quidez, 259, 264, 494 U.S. (2) warrant; scribed whether the (1990); 108 L.Ed.2d see also United objective warrant sets out standards Leon, 897, 906, States v. executing which officers can differenti- (1984) (“The L.Ed.2d wrong subject ate items to seizure from those condemned Amendment is [Fourth] (3) not; which are gov- whether the ‘fully accomplished’ by the unlawful search ernment was able describe the items itself----”). or seizure only Even when particularly light more of the informa- portion invalid, of a search warrant is tion available to it at the time war- subject of the search suffers a constitution- rant was issued. Sears, al violation. See United States v. (citations Spilotro, 800 F.2d at 963 omit- Cir.2005); 411 F.3d United ted). encapsulates The first consideration v. Spilotro, States 967-68 overarching Fourth prin- Amendment (9th Cir.1986) J.). (Kennedy, A search ciple that police must have warrant that is not “upon probable issued to search for and seize “all the items of a Const, IV; cause” is invalid. U.S. amend. particular type described in the warrant.” Groh, 124 S.Ct. 1284. Jury Subpoenas, In re Grand “Probable cause exists when ‘there a fair 857; Health, see also SDI Future probability that contraband or evidence of 702-03; Howland, VonderAhe v. 508 a crime will be in particular found a ” (9th Cir.1974). 364, F.2d 369-70 The sec- Grubbs, place.’ United States v. 547 U.S. ond and 90, 95, third factors are relevant to deter- 164 L.Ed.2d 195 (2006) Gates, mining (quoting Illinois v. whether the warrant satisfies this 462 U.S. 213, 238, 103 general S.Ct. 76 L.Ed.2d 527 rule.

1025 ammunition, any that could fire any device considering challenges When framework, ammunition, mate- any must and firearm-related we under warrants depu- that the “magistrate’s dispute determina no that a rials. There is mindful paid great should be for and cause to search probable probable tion of ties had Illinois v. reviewing courts.” with a shotgun deference sawed off seize the “black Gates, 462 U.S. But in the crime. grip” used pistol (internal (1983) quotation L.Ed.2d any evidence not set forth affidavit does omitted). has Court marks other that Bowen owned or used indicating approach practical take a us to directed contra- firearms, firearms were that such sufficient there is determining whether crime, or that such or evidence of band cause, “interpreting and to avoid at the likely present to be firearms were rather than hypertechnical, in a affidavits Nothing in the Millenders’ residence. (brackets Id. common-sense, manner.” any provides basis or the affidavit warrant omitted). marks quotation and internal there was cause to concluding however, is magistrate, “Deference of generic or class search for seize Leon, 914,104 468 U.S. not boundless.” firearm-related materials list- firearms and to “defer to are not 3405. We S.Ct. such, warrant. As we ed in the search not that does on an affidavit warrant based cause did exist “probable conclude that with a substantial provide particular types.” those to seize all items of of determining the existence basis Health, F.3d at 705 Future SDI (citation and Id. at 915 cause.” (brackets marks quotation and internal omitted). quotation marks internal omitted). B must have The rule whether the war- searched by analyzing every cause for item begin We for firearms to search always rant’s authorization invalidate warrants does not materials satisfies firearm-related generic for classes of authorize search framework. We specificity three-factor Spilotro, 800 F.2d 963. As items. See had whether first consider sug consideration the framework’s second and seize “all to search for probable cause gests, a broader type described particular the items of a if the warrant estab sometimes be valid Subpoe- Jury In re the warrant.” Grand sufficiently spe that are standards lishes here nas, premise “The 926 F.2d at 857. “reasonably guide the officers cific to way in the of search intrusion is protected property” of avoiding seizure evil, intrusion at so that no or seizure is “to determine judicial to allow review prior a careful de- justified all without were followed and whether the instructions necessity.” Coolidge v. termination interests property privacy legitimate 443, 467, 91 Hampshire, New States v. Hill protected.” were United (1971) (plurality 29 L.Ed.2d 564 (9th Cir.1982); yard, F.2d cause to example, probable For opinion). Gomez-Soto, v. also States see United “cer- pertaining to search for documents (9th Cir.1984). Neverthe F.2d justi- cannot operation” aspects [an] tain less, on an affidavit de a warrant based in an all office. fy the seizure of documents could not scribing “a few stolen diamonds” Stubbs, 210, 211 United States for a broad cate validly authorize a search Cir.1989). and other items gory “gemstones such a warrant would jewelry” because above, noted As distinguishing [the no basis for essentially “provide[ ] a search for authorizes this case 1026 if affi govern- the we could the from Even consider

stolen] diamonds others davit, it would not cure the still the warrant’s expect premis- could to find on ment use deficiencies. Messerschmidt did not Spilotro, 800 F.2d at 965. es.” the the Millenders’ affidavit residence may be specific More standards in provide specific direction to the more affidavit, in than the rather contained house, who vestigators searched the “(1) itself, only if: the warrant warrant alerting the as to by investigators instance by ineorporate[s] the affidavit expressly (within of firearm type generic what the (2) either is reference the affidavit warrant) firearms in class of described the or at to the warrant physically attached was used in the crime. did inves Nor the while accompanies least executing tigators the warrant understand States agents execute the search.” United the the scope the affidavit narrow (9th Kow, 58 F.3d 429 n. 3 Cir. v. Rather, they Augusta Mil- search. seized 1995). Applying principle, upheld this we shotgun, which lender’s did not resemble authorizing officers to police a warrant had a Kelly: the firearm described it heavy all motor vehicles and “search and was wooden stock neither sawed-off found on to de equipment premises” the Kow, pistol in grip. nor had a As where which in because part termine were stolen an incorporated we held that affidavit did incorporated warrant an affidavit that the warrant, not cure a invalid “there “procedures differentiate established absolutely no in evidence this case legally stolen vehicles from those owned.” warrant, who al the officers executed the 1341; 677 F.2d at see also Hillyard, affidavit, though to read the instructed Adjani, States v. F.3d United 452 actually on the the relied information in (9th Cir.2006). 1148-49 limit affidavit over- warrant’s Accordingly, breadth.” 58 F.3d at 429. case, deputies argue uphold we cannot warrant based scope affidavit narrowed the objective standards the affidavit. by including specific the search warrant issue, information about the crime at Finally, suggested by used, weapon and Bowen’s member consideration, third framework’s warrants ship, this information cured may sometimes authorize a search for deficiency. constitutional The affidavit generic government classes of items if the satisfy prong of the Kow does first was not “able to describe the more items the district court the war test: found that particularly light of the information expressly incorporated rant affidavit it at the available to time the warrant was But evidence in reference. there is no 963; Spilotro, issued.” 800 F.2d at see record, argue, nor do the Adjani, also 452 F.3d at For 1147-48. physically the affidavit was attached to the example, Storage United States v. or accompanied warrant the warrant on Spaces Designated Nos. “8” and Lo “49” Therefore, the search. we cannot consider Douglas, East upheld cated at 277 we Bridges, its effect. See United States authorizing and seizure (9th Cir.2003); see of potentially broad class misbranded Groh, also drugs part government because the did (“The Fourth Amendment its terms information de allowing not have it to warrant, particularity in requires drugs specifically. scribe the more documents.”); supporting Spilotro, Cir.1985). in the But where 967; Hillyard, F.2d at F.2d at have information specif do more describing ically the evidence or contra-

1027 necessary. shotgun would be But band, authorizing search and this rea- a warrant soning preclude precise does not more may class of items of a broader seizure subject Thus, description of the items to seizure. “[u]pon the informa- when invalid. it, government specific Under the circumstances of the knew available to the tion crime, wanted,” deputies’ it was the cause ex- exactly it what needed only components tended to to authorize firearm for a warrant unconstitutional part could be of a disassembled sawed-off of all records.” massive reexamination “a 370; VonderAhe, shotgun pistol grip; with a there was no see also SDI 508 F.2d at (a Health, por- probable at cause to search for disassembled F.3d 704-05 Future 568 in authorizing pieces the of all firearms described the war- of a warrant tion search relating Spilotro, to rant. See 800 F.2d for “Documents non- E- internal memoranda and privileged argue The that it deputies also was nec- government’s held invalid mail” when essary firearm description to draft to communications re- interest was limited broadly Kelly because could have been studies); sleep to Ctr. Art Galleries- lated description gun. mistaken her of the States, Haw., Inc. v. 875 F.2d United This argument has little force this situa- (9th Cir.1989) (where government “the tion, provided Kelly because the officers identify accounts which had the means to with a picture weapon. The war- [allegedly have fraudulent involved Kelly rant did not omit might details artwork,” a warrant Dali autho- Salvador] have might mistaken or that not have been rizing agents to accounts of other seize accurately photo, in the reflected such as invalid), superseded was statute artists specific color or make of the weapon. Man- groimds other as stated J.B. Rather, Messerschmidt failed to include States, ning Corp. v. United F.3d any limitation that have helped would fo- (9th Cir.1996). cus the specific type gun warrant on the Thus, case, precise legitimately subject this had a to the search. deputies In if deputies’ argument, availing, used Bowen the description of the firearm would Kelly, impermissibly “enlarge in connection with his assault. allow assault, authorization, specific and victim the de- furnished a war- eyewitness general a “black rant ... into the of a equivalent the firearm as sawed off scribed shotgun pro- rummage with a and even and seize at will.” pistol grip” Dickerson, photo Minnesota v. deputies of Bowen vided (1993) govern- 124 L.Ed.2d 334 gun. with the Because the posing “ (internal omitted). quotation it needed marks ‘exactly ment knew what ” wanted,’ also cuts third consideration short, deputies had warrant. against validity Unit- single, cause to search for identified Cardwell, States v. ed weapon, or whether assembled disassem- Cir.1982) VonderAhe, (quoting 508 F.2d They bled. had no 370); Spilotro, see F.2d at 963. search for the class of broad firearms and deputies argue scope that the broad firearm-related materials described in the warrant. necessary light Although upheld we have war- specific describing of the crime. rants classes of items in circumstances broad cases, Storage Spaces, certain They shotgun note that a can be see sawed-off 1370; Hillyard, F.2d at separate pieces down into easi- broken rationales in those adopted inap- concealment that the had cases are er plicable given that a search for here information the probable cause believe deputies possessed. of the sawed-off parts the disassembled 1028 account the inherent to take into ar- officer raise several additional deputies

The potential by raised arrestee’s hazards of the war- justify the breadth guments to firearms, v. however, to see Chimel un- access are arguments, rant. These Califor 762-63, 2034, nia, 752, 23 89 S.Ct. 395 U.S. requirement constitutional related (1969). is no “dan But there L.Ed.2d 685 except not issue a search warrant that to the Fourth exception gerousness” every item de- cause for upon requirement, Amendment’s In re Grand in the warrant. See scribed a involves of whether search regardless at 926 F.2d Jury Subpoenas, A deadly weapons. suspects or violent it First, argue that deputies do not safety valid concerns police officer’s warrant to author for the was reasonable that a probability” a “fair broad create and fire for firearms ize a broad search in a sus weapons may be found class of is a Bowen materials because arm-related or that such items are pect’s residence person. depu The dangerous violent of a crime. See contraband or evidence in the affidavit attention to facts ties draw 95, Grubbs, U.S. at 547 suspected as showing that Bowen was case, no and we have deputies The cite weapon, was a deadly with a sault none, that a over- holding warrant’s found member, night service was re and that simply could be cured because breadth depu public. quested protect at some danger police officers potential not set forth rely ties also on research Indeed, a rule future. such point that Bowen the affidavit which indicated every officers to transform permit would prior history of violence and several had exploratory a “general, into The dissent makes felony convictions. rum allowing “indiscriminate search[ ]” at 12742- arguments, see Dissent similar person’s belongings.” maging through n.6, prob that n.l & and also contends Groh, 963; see also Spilotro, 800 F.2d are because firearms able cause existed 1284; Coolidge, U.S. inherently at 12743-4 dangerous, Dissent (plurality 91 S.Ct. 2022 4.4 per Nor is there se rule opinion). depu There is no doubt have cause to search protecting ties have a valid interest for firearms and residences of ex-felons public potentially and the from themselves items. See States firearm-related United Indeed, (10th dangerous suspects. Santos, violent v. 403 F.3d Cir. recognized 2005) has history, Court criminal (holding prior that a give more, “some latitude” to “offi courts must is insufficient to establish without process dangerous suspicion); in the and difficult States v. cers reasonable United (8th Cir.2000) Herron, executing making arrests 215 F.3d Garrison, warrants,” prior marijuana Maryland (holding v. that evidence 79, 87, proba 94 L.Ed.2d 72 convictions is insufficient to create (1987). resid vein, ble cause to search the defendant’s In this the Court’s “search ence).5 a police doctrine allows incident to arrest” Bowen, a "felon in could be evidence of Judge Callahan's dissent as "the

4. We refer to 922(g)(1); § possession” See 18 U.S.C. Judge crime. or "Dissent.” We refer dissent” 12021(a)(1). argu- § Cal.Penal Code This by name. Silverman’s dissent below, pure and is not a ment was not raised Ross, question question whether the 140 F.3d 5. We do not reach the of law. Scott Cf. Cir.1998) (9th (holding Augusta that we justify the seizure of could review issues not raised gun plain view doc- have discretion to Millender's under the firearm, trine, purely presented is below when "the issue theory if owned on the Gourde, Cir.2006) Here the record is devoid of (en banc). possessed guns that Bowen other Probable cause is a determina- evidence shotgun tion made the issuing magistrate than the sawed-off identified based him, range presented that the broad of firearms on the facts not a Kelly or deter- mination present covered the warrant would be made an officer based on in- Therefore, only in the Millenders’ residence. formation known to himself. See Gates, 238-39, history of Bowen’s or the inher 462 regardless 103 S.Ct. 2317. Therefore, firearms, dangerousness ent of the dissent in suggesting errs probable apply personal lacked cause to for a search that Messerschmidt’s knowledge a range for broad of firearms.6 Bowen was a felon is sufficient to probable create cause. Dissent 1036 & event, because Messer n.l.7 the magistrate schmidt did not inform of felonies, Second, prior history Bowen’s his criminal deputies argue they analysis justified is not relevant to our here. It is were in seeking all firearms and that, in reviewing well established search firearm-related materials because such warrant, are “limited we to the information materials could aid in prosecution of and circumstances Again, contained within the Bowen. argument is unrelated underlying four corners of the affidavit.” to the constitutional requirement County Diego, Crowe v. San probable 593 F.3d there be cause for each item de (9th Cir.2010) (internal quotation 869 scribed the warrant. Although dep omitted); marks see also likely United States v. uties had cause to search Grubbs, require place,” one of law” and does not additional lar 126 S.Ct. (internal development quotation factual (internal omitted). quotation marks Rather, omitted)). marks in order to raise suspect’s propensities While a may violent argument, deputies such would need to arrest, create cause for an there is present evidence on critical factual issues per propensities no se rule that such author- deputies Augusta such as whether the saw general ize a range broad gun place Millender’s "from a and in circum- weapons. viewing stances where the officer was entitled present,” Spilotro, to be 800 F.2d at Nor, dissent, contrary immediately apparent mag- whether it would be to the could the them that a firearm was contraband or evi- properly prior istrate infer that Bowen had dence of a crime when Bowen did not have felony convictions from the affidavit’s refer- sole dominion or control over the 120th St. ence to information about Bowen in "the cal- address, California, Horton v. see 496 U.S. gang data base.” Dissent at 12743 n.l. Ac- 128, 136, 110 L.Ed.2d 112 Committee, cording Advisory to CALGANG’s Ruiz, (1990); United States v. 462 F.3d may a name be added to the database based (9th Cir.2006) ("[A]ccess premises nothing more than information that a equate possession.”). does not “[s]ubject frequenting gang has been seen ar- theory 6. The dissent raises further that the affiliating eas” and “has been seen with docu- had cause to obtain the Gang mented members.” Cal. Node Ad- search warrant for the Millenders’ residence Comm., visory Policy and Procedures for the because had cause to obtain an 27, 2007), System (Sept. CALGANG® avail- arrest warrant for Bowen. See Dissent at http://ag.ca.gov/calgang/pdfs/policy_ able at 12743, 12757-58. But these are distinct Indeed, procedure.pdf. Advisory Commit- tests: an arrest warrant must be based on tee warns that the CALGANG database "is not probable cause that “an offense has been or designed provide users with information committed,” States, being Brinegar v. United taken," upon which official actions 160, 176, 93 L.Ed. provide probable "cannot be used to (1949), while search warrant can issue cause for an arrest or be documented in an only probability on “a fair that contraband or particu- evidence of crime will be found in a affidavit for a search warrant.” Id. at 6. Honore, ma- v. firearm-related ed States range a limited circum- provided Cir.1971), range have the full of firearm terial that would not to ownership of the evidence of stantial sought materials here. and firearm-related issue, such as re- shotgun at sawed-off Whitten, United States See ammunition, the war- compatible or ceipts (9th Cir.1983) (upholding a war beyond such evidence to rant extended authorizing the seizure of a broad rant firing or cham- “[a]ny capable firearm only to extent the range of documents ammunition.” any caliber to fire bered ownership indicated “the or oc documents Fourth Amendment does simply, Put residence, noting cupancy” of a the issuance of warrants not authorize a limitation the warrant’s without such expeditions to find evi- fishing conduct un “might authorization have been broad prosecut- that could assist officers dence reasonable”), abrogated grounds on other Garrison, 480 U.S. at ing suspects. See 840, Perez, v. 116 F.3d by United States 84,107 S.Ct. 1013. Cir.1997) (en banc); 844-46 Unit cf. deputies argue further The 418, 420-21, Rettig, ed States v. 589 F.2d any shotgun receipts of or would caliber (9th Cir.1978) (invalidating a warrant 423 purchase guns. and of possession show the identity allowing a search for indicia of the gives how this But we fail to see govern residents of a house when of the cause, pos because the deputies probable pretext ment used it as a to search agents guns by of itself does purchase session and a cocaine smuggling for evidence of con of a not constitute contraband or evidence spiracy). Gates, 238, 462 U.S. at 103 crime. See Although magis- we are deferential to a above, As discussed the war S.Ct. 2317. trate’s determination of cause about rant did not include the information language of a warrant and consider Bowen’s criminal record that could make prac- and affidavit in a common sense and purchase guns of a possession his manner, Gates, tical 462 U.S. at offense, and thus such informa criminal identify S.Ct. here we are unable to analysis. tion cannot be considered in our Crowe, basis, basis,” Moreover, a 593 F.3d at 869. let alone “substantial See Leon, that the while the district court concluded at see S.Ct. deputies had cause to search for for cause to search and seize the property personal tending “[a]rticles category of firearm and firearm- broad identity person per or establish related materials set forth in the warrant. premise premis in control of the or sons Accordingly, we find ourselves in that rare es,” ruling a the Millenders do not chal we that the situation where must conclude lenge argue do not appeal, for magistrate lacked substantial basis justified that such cause their issuing range the warrant for this broad range of firearms search for the broad items. they. in the warrant. Nor could listed upheld warrants authoriz While we have C tending to ing searches for es “[i]ndieia next consider the search We identity persons in control of tablish authorization to search for all warrant’s Stockton, premises,” Ewing City v. gang-related items. The affidavit contains (9th Cir.2009), 1218, 1229 alleged gang two references to Bowen’s for such “indicia probable cause to search It “a membership. states Bowen is usually of control” refers to such items member,” Crip gang Park known Mona “utility company receipts, receipts, rent asserts, justifying it in the section envelopes, keys,” cancelled mail Unit- service, night rights “clearly for that Bowen “has request were established” at the Crip gang ties to the Mona Park gang deputies’ alleged time of the misconduct. provided by Pearson, based on information the vic- at cal-gang tim and the data base.” Neither A provides probable

of these assertions that “contra- conclude Supreme Court has refined the ap- Gates, crime,” evidence of a band or 462 plication immunity test in would U.S. be found the Fourth Amendment context. See Mal- Merely Millender’s Mrs. residence. be- 344-46, ley, 1092; ing gang having gang member or ties is Groh, 563-65, S.Ct. 1284. a crime in People California. In private against actions officers who Gardeley, Cal.Rptr.2d 14 Cal.4th have executed constitutionally inadequate (1996). 356, 927 P.2d The rele- warrants, Court has held that “imposes vant California law increased an officer qualified immunity only loses criminal penalties” membership reasonably when “a well-trained officer in only underlying criminal act is when position [the defendant officer’s] would “ of, of, ‘for the benefit at the direction or have known that his affidavit failed to es- in a group association with’ that meets the tablish cause and that he should statutory specific conditions of a ‘criminal applied not have for the warrant.” Mal- gang,”’ street and when the act is done 345, ley, 475 at 106 S.Ct. 1092. This “ ‘specific promote, intent to fur- with the “provides ample standard protection to all ther, any or assist in criminal conduct but plainly incompetent or those who (quoting members.’” Id. CaLPenal knowingly violate the law.” Id. at 186.22(b)(1)). Here, § Code Messer- S.Ct. 1092. schmidt himself stated he had no reason to Despite protection, this the Supreme Kelly believe that Bowen’s assault preserved Court has right of individu- gangs, related to and there is no evidence als to seek relief in certain narrowly de- (or record) suggest in the affidavit to Groh, Malley fined circumstances. deputies otherwise. Because the failed to leading Supreme the two Court cases in any link gang-related establish between context, arguments deal facts and crime, materials and the warrant autho- similar to the case before us. In Malley, rizing gang- the search and seizure of all plaintiffs sued a state trooper under related evidence is likewise invalid.

§ applying 1983 for for an arrest warrant IY that failed to establish cause. Id. 1092.8 Rather S.Ct. than proba- Our conclusion that there was no granting the officer immunity, absolute categories ble cause for the broad of fire- Malley held that officers should receive arm- gang-related items listed in the only qualified immunity because “it would warrant, search and that the search war- be incongruous police to test behavior rant violated the Millenders’ constitutional ‘objective reasonableness’ standard in rights, only step analysis the first in our a suppression hearing, of whether the are entitled to United States v. Leon, (1984), qualified immunity. exempting We must next consid- 468 U.S. 897 while er whether the applying Millenders’ constitutional conduct in for an arrest or warrant, 1092; Clarke, Though Malley 8. dealt with an arrest Marks v. 1026 & 1997) opinion applies (applying Malley to both arrest and search n. 31 Cir. warrants). warrants. See 475 U.S. at S.Ct. search scrutiny exercising professional judg- reasonable warrant from whatso- 345-46,106 damages Malley, § action.” 1092. ever ment.” Id. S.Ct. According- 1092. 475 U.S. at 106 S.Ct. example of one of the offers Groh enti- Malley held that officers would be ly, Malley rare described in when a cases § immunity in 1983 ac- tled lacking proba- in indicia of warrant is “so only the same facts would tions under ble cause as to render official belief its good claim a faith government allow unreasonable,” existence 475 U.S. at exclusionary rule in a exception 1092, notwithstanding ap- otherwise, offi- hearing. Said suppression Groh, proval magistrate. plain- of a immunity only “where the war- cers lose rights tiff claimed his Fourth Amendment application lacking rant is so indicia of had been violated because the warrant au- official probable cause as to render belief thorizing the search and seizure of his Id. at 344- in its existence unreasonable.” 554-55, property was invalid. 540 U.S. at Leon, (citing Although the defendant S.Ct. 3405). 923,104 S.Ct. prepared application officer had a detailed rejected argument that the Malley warrant, for the the warrant itself included damages trooper was “shielded from liabil- only description plaintiffs resi- ity applying because the act of for a war- dence, it incorporate appli- did not objectively per rant is se reasonable” and cation reference. Id. Groh held rely judg- on the he was “entitled plainly the warrant “was invalid” because judicial finding ment of officer totally things it failed to describe the to be issuing exists and hence probable cause seized, particularity. let alone with Id. at the warrant.” Id. 557, Accordingly, 124 S.Ct. 1284. According Malley, objective that view of Court concluded that the search conducted reasonableness was “at odds” with cases pursuant to the warrant was unconstitu- Leon v. Fitzgerald, such as and Harlow 563, Reject- tional. Id. at 124 S.Ct. 800, 2727, 457 U.S. 102 S.Ct. 73 L.Ed.2d ing the officer’s assertion of im- (1982). 345, Malley, at 475 U.S. munity, “just simple reasoned that Groh Rather, pertinent question S.Ct. 1092. glance[ glaring have revealed a de- Jwould reasonably must be “whether a well- ficiency any that reasonable officer trained officer in defendant [the officer’s] constitutionally would have known was fa- position would have known that his affida- 564, Further, tal.” Id. at S.Ct. 1284. vit failed to and probable establish cause “may the Court held that the officer applied that he should not have for the reasonably that argue he relied on the warrant.” Id. If a reasonable officer Magistrate’s assurance that the warrant that would have known the affidavit was adequate description contained an deficient, fatally “ap- then the defendant’s things to be seized and was therefore val- plication objectively for a warrant was not id” the officer prepared because himself reasonable, it created the unneces- because the invalid warrant. Id. sary danger of an unlawful arrest [or Accordingly, Malley as that Malley Id. declined hold search].” clear, plaintiff proceed make can Groh an rely officer could on the determination § stemming with a 1983 action from an magistrate, stating that “it possi- is an application officer’s for invalid warrant that a magistrate, working ble under dock- in “a those limited situations when reason pressures, perform et will fail to as a and, ably well-trained officer” the defen it accordingly, should” dant’s situation would have known that the require applying “reasonable to the officer danger by for the to minimize this warrant did not establish cause. warrant 1092; weapons at 106 S.Ct. access to more and hurt other Malley, 475 U.S. Groh, people, including at 124 S.Ct. 1284. the victim in this case.” see 540 U.S. extent, lacking argument is so indicia To the differs from When cause, “dangerousness” argument, officers cannot see su- claim their 12729-30, reasonably by seeking pra pp. Although it also fails. they acted magis entry a neutral make a merely officers warrantless into because rather, of a residence under certain approved application; exigent trate circum- stances, as “they objec- ficers must exercise their own “reasonable such when have an judgment.” Malley, tively believing 475 U.S. reasonable professional basis 346, 106 occupant seriously injured an or immi- nently injury,” threatened with such see precedents, we interpreting these Stuart, 398, 400, Brigham City v. the “distinction emphasized have between (2006), 126 S.Ct. 164 L.Ed.2d 650 disputable probable cause warrants exigent circumstances doctrine is an ex- lacking probable cause and warrants so ception requirement, to the warrant id. that no reasonable officer would view them not an authorization KRL, 1190; valid.” 512 F.3d at see also deputies apply for the for a warrant Shi, v. United States supported by is not probable cause. (9th Cir.) (“Goodfaith reliance exists if the The also assert could have ‘at a col agents’ affidavit establishes least reasonably been mistaken as to whether cause, argument’ orable underlying gang-related. crime was agents relied on the search warrant in frivolous, argument This borders on the objectively (quot reasonable manner.” given Messerschmidt’s statement that he ing Luong, United States belief, had no reason to hold such a — denied, Cir.2006))), cert. any absence evidence that the crime -, 172 L.Ed.2d 234 gang-related. at issue was (2008). the “lack of Where officer was so obvious reasonable deputies’ arguments change cannot warrant would conclude that reading the reality that the warrant this case invalid,” we have the warrant was Groh, “glaring deficiency.” suffered a “[ajpproval by attorney that and a held at 124 U.S. S.Ct. 1284. Neither it nor justify reli magistrate did reasonable probable the affidavit established KRL, Kow, (citing ance.” 512 F.3d at 1192 firearms, categories that the broad fire- 428-29). at 58 F.3d material, arm-related and gang-related material in the warrant were described

B contraband or evidence of a crime. More- over, deputies the claim that a in deputies’ While reasonable officer reasonably position “a officer” in their have well-trained would been well aware of position deficiency. would not have known that The affidavit indicated ex- crime, probable actly search warrant failed establish what item was evidence of a cause, Malley, shot-gun 475 U.S. at the black sawed-off a pistol 1092, they prior argu grip, add little to their and reasonable officers would know deputies argue they they general, ments. The that could not undertake a explor- reasonably mistakenly atory could have but con for unrelated items search unless they they had cause to additional cluded that had cause for Health, at weapon seize the found the Millender those items. See SDI Future 568 702-03; if at “they Jury Subpoe- residence because would not know F.3d In re Grand nas, 857; VonderAhe, suspect coming would back and the 926 F.2d at circumstances, suspect gain officers would not want the at 369-70. these we Under objectively reasonable in ob- reasonably an officer could officers were say cannot that a taining range the search a search warrant for broad mistakenly believe but “a of firearms and indicia because the argument established colorable warrant ex-felon, suspect at was an the firearms were probable cause.” See for Sh% Rather, inherently dangerous, and the firearms “plain- the warrant here was 731. Groh, 557, 124 Dissent at ly specifically invalid.” 540 U.S. at were described. above, explained 12759-60. As under ba- S.Ct. 1284. a principles, sic Fourth Amendment Citing dissenting opinions supported by probable is not Groh, at 1039 Malley in and see Dissent cause unless affidavit establishes n.8, n.10, 1045-46, & the dissent 1038-40 in the items the search warrant are con- acted in an would hold that the officers crime; traband or evidence of a neither in- objectively reasonable manner as a matter officer, only formation known they “reasonably relied” on of law because suspect, criminal status of the nor the dan- approval superi the review and of “their gerousness of the items listed the war- ors, attorney, magis the district and the rant establishes cause. The dis- alleged trate to correct the over breadth long- sent’s desire to transform these warrant,” the search Dissent at 1044. a standing rules into more “workable Judge suggests likewise Silverman guideline,” Dissent at does not ex- deputies qualified are entitled to im police compliance cuse the officers from warrant, they munity because obtained existing with the rules mandated superiors, consulted with their and acted Supreme Court.9 good faith. at 1049- Silverman Dissent deputies here a responsibility had accept propositions, cannot We these professional their exercise reasonable however, because conflict with the judgment. Malley, at Groh, See majority opinions Malley Malley recognized, As imposed police which officers the inde system,” “ours is not an ideal such pendent responsibility to ensure there at in circumstances such as these a neutral argument least colorable (and, cause, fortiori, magistrate’s approval rejected suggested the factors prosecutor’s, dissenting justices Coolidge, non-neutral see giving 2022) 449-50, protection officers even further from liabil U.S. S.Ct. cannot ab- Groh, 563-64, ity. liability. 124 solve an officer of Malley, See U.S. 1284; 345-46, Malley, S.Ct. 1092.10 Accordingly, can agree S.Ct. 1092. Nor we are not entitled to suggests relatively insignificant 9. The part' dissent also that the officers' the warrant is 'a objective- reliance on the search warrant of an otherwise invalid In re was search.” Grand ly Jury Subpoenas, only (quoting F.2d at reasonable because two sections of the cause, 967). Here, Spilotro, though 800 F.2d at even warrant lacked and those sec- upheld single the district court a appear very impor- tions "do not to have sentence and been though description even initially of items to be tant either when the warrant was 1047; comprised only searched for and seized two sought or later.” Dissent at see Dis- fact, paragraphs, the reliance on the officers' war- at sent 1044-45. those two sections rant as a whole was not reasonable. description of the warrant set forth the entire seized, of the items to be and the district single court invalidated all but a sentence. 10. Nor is this a case where the warrant was Supra p. Although at we magistrate have held that defective because the made an er- ror, portions Sheppard, the invalid of a search warrant as in 468 U.S. Massachusetts 981, 989-90, portions, be severed from the valid "sever- 82 L.Ed.2d 737 (1984), portion sup- ance is not available when the valid in which the Court declined to Second, shotgun. respect reviewing ap- to the Millenders’ off immunity with law, plicable majority case obtaining ap- their role in and exe- fails to claim that preciate the courts have cuting the warrants violated their constitu- factors used to transform an abstract standard —did rights. tional reasonably rely by officer on review coun- V a sel and a workable —into justifying purposes Third, guide “While for a I line officer. would strictly permissible limit the extent totality find that the of the circumstances search, recog the Court has also compels finding in this that the line case the need to allow some latitude nized reasonably supervi- officer relied on his mistakes that are made officers sors, honest attorney, magis- the district and the dangerous process in the and difficult trate to determine the constitutional limits executing search war making arrests Finally, of the search warrant. I am con- Garrison, 87, 107 rants.” majority’s parsing cerned that the cases, majority In the officers likely encourage search warrant is un- mistaken con certainty litigation. who reach reasonable but and needless I would justified by grant qualified immunity. clusion that a warrant was the officer from suit probable cause will be shielded I immunity. Malley, 475 by qualified See differing Our views on the warrant’s 106 S.Ct. 1092. “But the U.S. provision for the search and seizure of men, must be those of reasonable mistakes respective firearms are revealed our leading sensibly on facts to their acting applications Spilotro, of United States v. Brinegar, probability.” conclusions (9th Cir.1986), 800 F.2d 959 which sets Where, 69 S.Ct. 1302. forth the framework for determining here, so invalid sufficiency. warrant’s There we held that officer have relied no reasonable could whether a determining description “[i]n it, quali are not entitled to sufficiently precise,” we should concentrate immunity, pro and the can fied Millenders following: on one or more of the § ceed with their 1983 claim. (1) whether cause exists to AFFIRMED. particular type seize all items of a de- (2) warrant; whether scribed CALLAHAN, Judge, Circuit with whom objective warrant sets out standards TALLMAN, Judge joins, Circuit executing which can differenti- officers dissenting: subject ate to seizure from items those Although majority’s opinion nicely (3) not; gov- which are and whether the lays applicable out the law to a determina- ernment was able to describe the items qualified immunity, my tion of review of particularly light more of the informa- the law the facts in this require case tion available to it at the time the war- that I dissent. I address four matters. rant was issued. First, I majority’s take issue with the de- (citations omitted). Id. at 963 termination that the warrant constitution- ally majority provide could not for the search and admits that there was probable seizure of firearms other than the sawed- cause to search for and seize the Here, press improper lidily. prepared evidence obtained with an Messerschmidt the himself, authorizing magis- magis- warrant form where the overbroad warrant the gave the detective he would trate no that he would fix trate assured that assurances changes necessary va- in the make the to ensure its errors warrant. Bowen, firearms in the home in which shotgun pistol sawed-off “black felon, objects gang thought that “the affidavit does member and was grip,” but Gates, that any indicating not set forth evidence reside. In Illinois v. 462 U.S. firearms, (1983), any owned or used other Bowen 76 L.Ed.2d 527 evi- that such firearms were contraband or Supreme Court held that crime, that dence of a or such firearms probabil- cause exists when “there a fair is likely present were to be at the Millenders’ ity that contraband or evidence of a crime Op. approach residence.” at 1025. This in a particular place.”2 will be found See overlooks the fact that the search warrant Grubbs, also United States v. by an accompanied

was arrest warrant for (2006). L.Ed.2d 195 Bowen, search, object the real who very their are danger- Firearms nature the officer believed resided at the resi- pos- numerous ous and laws render their reasonably dence. Bowen was considered See, session convicted felons criminal. dangerous. shotgun to be He had fired a Thus, § e.g., 922(g). light U.S.C. public Kelly, was a of a member officer, i.e., the facts known to the that gang, street and had a criminal record recently shotgun Bowen had fired a at his including prior felonies.1 Because of Bow- friend, member, girl was a awas dangerousness, deputies request- en’s felon, armed, presumably was there nighttime ed service of the warrant. The a “fair probability” only was least service, magistrate approved nighttime that might there be firearms the house that district court held the facts in which Bowen was believed to be resid- specified in the affidavit were sufficient to ing, that but such firearms would be “con- justify nighttime service. The district traband or evidence of a crime.”3 More- court also that the concluded arrest war- over, safety involved, of all both the rant was that valid and its authori- home, officers and the inhabitants zation to tending evidence to requires that seeking night- officers premises establish who controlled the was time a dangerous arrest of felon be al- atOp. constitutional. any lowed to seize firearm that come context, prob-

Given this the officers had across in their search for that individual or able cause to search for and seize properly evidence is otherwise Although support issuing magistrate the affidavit in simply The task of the explicitly practical, search warrant did not state that to make a common-sense deci- record, whether, Bowen had a criminal this can be given sion all the circumstances him, inferred from its statement that his member- set forth in the affidavit before in- based, ship Crip gang in the Mona Park cluding "veracity” and "basis of part, cal-gang on information in "the data knowledge” persons supplying hearsay California-funded, base.” This database is a information, probability there ais fair enforcement-maintained, law database of contraband or evidence of a crime will be gangs criminal street and their members in- particular place. duty found in And the cluding criminal histories and activities. See reviewing simply of a court is to ensure Further, http://ag.ca.gov/calgang. majority that the had a "substantial ba- notes first that the officer knew that Bowen concluding]” sis for ... previous felony had several convictions and cause existed. second that Bowen was a "third strike candi- 126 S.Ct. 1494. Op. date” under California law. at 1022. per suggested by 3.This rule is not se explained: 2. The Court Rather, majority. op spe- See at 12729. totality-of-the-circum- require- we cific factors set forth above reaffirm the meet Gates, analysis traditionally stances has in- ment of cause set forth in formed determinations.... 103 S.Ct. 2317. Indeed, thermore, any likely firearm was warrant.4 to be by the search covered the any weapons during crime, found securing a contraband or evidence of a more protect the officers justified is search particular description required was neither harm while from executing Accordingly, nor desirable. I dissent from doing so. majority’s the determination that the war- provision rant’s for the search and seizure a it is understood that there was

Once any firearms found of firearms was unconstitutional.7 probability fair thought in which Bowen was the house contraband or evidence of

reside would be II crime,5 the a the warrant meets second Supreme Authority A. Court Spilotro of the frame- provisions and third majority agree The and I that the stan- The warrant sets out firearms and work. determining qualified immunity dard for objective lan- firearms-related items Supreme has been set forth the Court that allowed the officers to differen- guage Malley Briggs, 335, 345-46, they might items seize.6 Fur- tiate what felon, majority shotgun demonstrably a that Bowen a 4. The notes that sawed-off dan- gerous, a separate pieces member who was wanted can be broken down into concealment, shooting ex-girl public. at his friend in easy "depu- that the but insists justify These alone are only facts sufficient to the probable cause extended to the di- ties’ during nighttime a search for firearms search pieces shot-gun of the sawed-off sassembled (or at least a reasonable officer could think grip.” Op. pistol at 1027. It also with Grubbs, so). majority, The cited the cases question whether the declines to "reach and In re justify of Mrs. Mil- could seizure 10, 1987, Jury Subpoenas doctrine,” Grand Dated Dec. gun plain lender's under the view 1991), Cir. are not to was not raised below and is because issue Grubbs, contrary. Court pure question Op. not a of law. at 1028 n.5. anticipatory addressed the nature of warrants However, permissible scope once the commented that "where the seek defined as a search for disassembled search is 5and permission to search a house for an item parts shotgun, of the sawed-off then an officer there, already magis- is located believe anywhere any to search fire- is entitled trate’s that there determination is words, might be In other allow- arm hidden. prediction cause for the search amounts to a ing weapons for the search for other does not the item will still be there when expand police may the areas that is executed.” 547 U.S. beyond might part those that also contain S.Ct. 1494. cited section of In re Grand shotgun. disassembled Jury Subpoenas, 926 F.2d at concerned Indeed, shotgun if the the officers seized particularity and breadth of the warrant. Bowen, registered had been or if it were Neither dealt items case such as firearms control, unregistered and under Bowen's it inherently dangerous are which likely have or most would been contraband Here, possessed certain felons. evidence of crime. suspicion officers had a that Bow- reasonable en would have firearms and that the firearms majority objects 6. The that the "affidavit does contraband, would be if not evidence of indicating any evidence not set forth crimes. firearms, any or used other Bowen owned gang-related relationship that such firearms were contraband or evi- 7.The between indi- crime, or that such firearms were cia and the offense for which Bowen was dence of likely present sought admittedly to be at the Millenders' resi- more attenuated. Ac- cordingly, disagree majori- Op. majority do not with the dence.” at 1025. The further I ty's provision “nothing determination that this comments that in the warrant or the However, concluding as ex- provides basis for warrant was overbroad. affidavit dissent, plained when viewed in probable cause to search for or later in this that there was context, pro- generic Op. at the line officers’ inclusion of seize the class of firearms.” , perspective appreciate in the warrant was reasonable. 1025. This fails to vision (1986) in petitioner’s posi- well-trained officer 89 L.Ed.2d Ramirez, 551, 124 S.Ct. Groh known that affidavit tion would have his (2004). Moreover, L.Ed.2d 1068 failed to’ establish cause and reading in our there difference is little applied that not have for the he should Rather, we opinions in the abstract. these case, If such the offi- warrant. was qualified application differ on the application cer’s for a warrant was not police a officer’s immunity test to front line reasonable, objectively because it creat- an and accom- request for arrest warrant unnecessary danger of an unlaw- ed majority’s search warrant. The panying in ful arrest. It is true that an ideal with the position is difficult to reconcile a system request an unreasonable preference Fourth Amendment’s harmless, be no warrant would because searches authorized neutral de- judge approve would it. But ours is not magistrates. tached system, possible an ideal and it is that a In consid- Malley, the Court magistrate, working pres- under docket police ered a claim that a officer caused sures, perform magis- fail will unconstitutionally ar- plaintiffs trate should. We find it reasonable to by presenting judge rested with an affi- require applying the officer for the war- davit which failed to establish danger by rant to minimize this exercis- cause. 475 U.S. S.Ct. ing professional judgment. reasonable rejected argument Court first an police officer was entitled to absolute (footnotes 345-46, Id. at 106 S.Ct. 1092 340-41, immunity. Id. at 106 S.Ct. 1092. omitted). The Court offered additional adopting After the basis for explaining guidance following in the footnote: standard, “objective reasonableness” Notwithstanding petitioner’s protesta- commented: Court tions, adopt way the rule we no “re- reject petitioner’s argument We also quires police that if an officer to assume a role only quali- officer is entitled to this, immunity fied in cases like he is ... magis- even more skilled than the damages nevertheless shielded from lia- presumption trate.” ... It is a sound bility applying because the act of for a magistrate that “the is more reasonable, per objectively warrant is se proba- than the officer to make a provided that the officer believes that determination,” ibid., ble cause and it alleged the facts in his affidavit are true. goes without saying magis- where a Petitioner insists that he is entitled to mistakenly issuing trate acts a war- rely judgment judicial on the of a officer range professional rant but within the finding cause exists and competence magistrate, of a the officer issuing hence the warrant. This view requested who the warrant cannot be objective reasonableness is at odds liable. But it if held is different no development concept our of that in Har- competence officer of reasonable would Leon, low and Leon. we stated that warrant, ie., requested have his re- good-faith inquiry “our is confined to the quest range profes- is outside the objectively question ascertainable competence expected sional of an officer. reasonably whether a well-trained offi- If issues the warrant cer would have known the search case, just such his action is not illegal despite magistrate’s au- mistake, unacceptable reasonable but an thorization.” 468 at 922 n. indicating incompetence error or gross analogous ... The question reasonably neglect duty. in this case is whether a then cannot The officer

1039 by “may to the mented that an officer unaware pointing his own default be of excuse it incompetence magistrate. existing applied,” of the law and how should be greater “may important misunderstand facts about 9,106 1092.8 at n. S.Ct. Id. 346 legality the search and assess the of his case relied The second Court misunderstanding,” conduct based on that Groh, majority, provides guid- by the “may or misunderstand elements of both Malley of the stan- application ance on the 566-67, the facts and the law.” Id. at 124 Groh, completely In the warrant dard. Kennedy S.Ct. 1284. Justice asserted that identify to the items to be searched.9 failed “qualified immunity applies doctrine 554, at 124 1284. The Su- S.Ct. regardless of whether the officer’s error is that the warrant was preme Court held law, fact, a a mistake of mistake of or a invalid,” 557, 1284, 124 “plainly id. at S.Ct. questions mistake based on mixed of law cursory reading that “even a of the and and fact.” Id. at 124 S.Ct. 1284. just a perhaps sim- case— a glance glaring have revealed ple Kennedy Justice went on to assert that —would deficiency police reasonable offi- Leon, language in United States 468 constitutionally would have known was cer U.S. S.Ct. 82 L.Ed.2d 677 564,124 at 1284. Accord- fatal.” Id. S.Ct. (1984), applicable was not to the situation petition- declined to allow ingly, Court respondents before the Court because the magistrate’s approval of er to invoke the “do not make the usual claim that shielding liability him from the warrant as injured by were a defect that led to an an invalid warrant that was preparing injured improper simply search” but “were guide- contrary department’s to his own because the warrant form did not contain 124 S.Ct. 1284. lines. See U.S. description property correct of the though property seized even no the fact that the warrant was Despite 570-71, seized.” Id. at 1284. He S.Ct. invalid, four Justices dissented. concluded Court “has stressed dissent, Kennedy, joined by his Justice ‘the purpose encouraging of recourse to Rehnquist, Chief Justice stated that procedure’ can be served best question central is whether “someone by rejecting overly technical reasonably standards position the officer’s could but mistakenly when courts review warrants.” Id. at conclude his conduct com- Gates, (quoting 124 S.Ct. 1284 plied with the Fourth Amendment.” 540 U.S. 2317). 237, 103 1284. He com- S.Ct. S.Ct. right joined by litigation possible personal when fear lia- 8. Justice Powell was of bility. specter personal liability Rehnquist, a The for a then-Justice he issued concur- judgment may prudent ring dissenting criticizing mistake in cause opinion police eyes officer to close his to facts that majority giving evidentiary weight "little brought should at least be attention finding by magis- judicial of the officer authorized to make judicial trate or officer.” Id. at the decision whether a warrant should is- urged: 1092. Justice Powell sue. police, they have to be- where reason 353-54, (footnote Id. at omit- exists, probable cause en- lieve should be ted). judicial couraged to submit affidavits of- I ficers. therefore believe suit portion "[i]n The Court noted that this, expressly such as the Court should description 'per- form that called for a seized, hold that the decision is property' petitioner typed to be son or evidentiary weight. respondents' two-story entitled to substantial description blue discourage alleged stockpile A more restrictive standard will house rather than the seeking warrants out of firearms.” 124 S.Ct. 1284. officers from separate particular Justice Thomas filed a dissent whether a affidavit establishes cause, joined Rehn ing opinion, Chief Justice and we have thus conclud- Scalia, preference which in addition ed that quist Justice for warrants questioning underlying appropriately whether most effectuated accord- unconstitutional, ing ‘great search was that the deference’ a magistrate’s held de- 914, qualified immunity. officer was entitled to termination.” Id. at 104 S.Ct. 3405 (internal omitted). objected Court, He that the Court had used an citation The however, inappropriate “high generality” level of noted that deference was not boundless, establish a clear violation of the preclude inquiry Constitut and did not (1) Instead, opined knowing falsity ion.10 he that the focus into “the or reckless “ (albeit (2) objective warrant],” should be on ‘the fact- the [supporting affidavit specific) question “merely whether a reasonable of whether the magistrate served as (3) ficer stamp police,” could have believed Anderson’s war rubber for the lawful, light rantless search to of whether the provided magis- be affidavit clearly established law and the information trate “with a substantial basis for deter- ” searching possessed.’ mining officer Id. at the existence of cause.” 578, Anderson, 914-15, (quoting S.Ct. 1284 483 Id. at (quoting S.Ct. 3405 641, 107 3034). Gates, 2317). 239, U.S. at S.Ct. 462 U.S. at 103 S.Ct. Thus, a reviewing “may court properly decision, Leon, A Supreme third Court that, notwithstanding conclude the defer- 3405, 468 U.S. is also in- deserve, that magistrates ence Leon, structive. In Court was invalid magistrate’s prob- because the adopted a good-faith exception for the ex- able-cause determination reflected an im- clusionary rule where evidence had been proper analysis totality of the of the cir- obtained as result of warrant that was cumstances, ... or because the form of the determined subsequently to lack improper respect.” in some so, In doing cause. the Court stressed (internal Id. 104 S.Ct. 3405 citation scrutiny the “detached of a neutral omitted). magistrate ... is a more reliable safe- guard against improper Nonetheless, searches than the the Court noted that judgment hurried of a law enforcement “where the objectively officer’s conduct is 913-14, reasonable, officer.” Id. at 104 S.Ct. 3405. excluding the evidence will not “[rjeasonable The Court noted that minds further exclusionary the ends of the rule in frequently may question differ on the any appreciable way: painfully for it is explained: 10. Justice clearly right.” Thomas lates a established Ibid. To apply qualified immunity high the standard at inquiry such a level of rests on "the'objective legal generality plaintiffs reasonableness’ of the would allow "to convert action, Fitzgerald, [v. Harlow qualified immunity the rule of ... into a 73 L.Ed.2d ... virtually unqualified liability rule of simply (1982)], light legal assessed rules by alleging extremely violation of abstract 'clearly that were established' at the time it rights.” Ibid. The Court in criti- Anderson Creighton, was taken.” Anderson v. Appeals cized considering the Court of U.S. at 107 S.Ct. 3034 ... The out- qualified immunity question only in inquiry "depends substantially come of this petitioner's "right terms of the to be free upon generality the level of at which the from warrantless searches of one's home 'legal relevant ... rule’ is identified. For searching unless the officers have example, right process to due lawof is exigent cause and there are circum- quite clearly established the Due Process stances.” Id. at 107 S.Ct. 3034. Clause, and thus there ais sense in which 124 S.Ct. 1284. any action that violates that Clause ... vio- evidence, the discussion in Leon acting as a Court’s ... the officer apparent that magistrate act officer would and should the role of the deference to reasonable 919-20, Id. at circumstances.” majority similar informs'—as (internal marks and quotation analysis recognizes officer’s —-our omitted). commented The Court citation conduct our case. responsibility magistrate’s is the that “[i]t sum, majority I agree with the allega- officer’s whether the to determine Groh, pursuant Malley question cause,” and “[i]n establish tions reasonably is whether a well-trained offi- case, ordinary an officer cannot cer in the defendant’s situation would have magistrate’s question expected known that the warrant did not establish judg- or his determination probable-cause probable Op. cause. at 12734-35. But an the warrant is tech- ment that the form of appreciation specific language in the at 104 S.Ct. nically sufficient.” Id. opinions lead Supreme Court’s should us “[penal- concluded that The Court to focus on those factors that transform an error, magistrate’s izing the officer for guide- abstract standard into a workable own, logically cannot con- rather than his for a line officer. line of Fourth tribute to the deterrence violations.” Id. Amendment Authority B. Ninth Circuit that Finally, explained the Court A of our precedent review own reveals prob- magistrate’s reliance on the officer’s that and reinforces the factors should be objec- must be determination able-cause in determining considered whether an offi at 104 S.Ct. tively reasonable. Id. sought reasonably cer who a warrant re inquiry faith is confined “good 3405. The magistrate. lied on review counsel and a objectively question ascertainable Moore, In KRL v. Estate 512 F.3d 1184 reasonably well-trained officer whether (9th Cir.2008) (“KRL II”), we reiterated was would have known that the search perspective qual that Court’s despite magistrate’s authoriza- illegal “all immunity protects plainly ified but the The tion.” Id. at 920 n. 104 S.Ct. 3405. knowingly or those who vio incompetent suppression that Court then indicates (quoting Malley, at late the law.” Id. (1) magis- appropriate would be where 1092). 341, 106 noted 475 U.S. S.Ct. We by information in an trate “was misled magistrates that courts “treat as more that the affiant knew was false or affidavit qualified than officers to make de except would have known was false his cause,” that terminations of (2) truth;” “the disregard reckless general as a matter an officer cannot be issuing magistrate wholly abandoned his expected question magistrate’s proba to (3) role;” where the affidavit was judicial Leon, (citing Id. ble cause determination. lacking “so in indicia of cause 3405). S.Ct. We official belief in its existence entire- render “[ojfficers stated that lose their shield of ly (quoting unreasonable” Brown v. Illi- ‘only qualified immunity where the war nois, 610-11, application lacking rant is so indicia of (4) (1975)); or 45 L.Ed.2d official belief probable cause as to render facially failing particu- “in deficient ” Id. at its existence unreasonable.’ to be searched or the place larize the 344-45, Malley, 475 U.S. at (quoting 1189-90 Id. at things to be seized.” 1092). Auken, then cited Ortiz v. Van quali- We Although the case at bar concerns (9th Cir.1989), example as an of F.2d 1366 immunity suppression fied and not the entirely an where it was reasonable for officer to cers’ belief was not unreasonable. Id. at 1370. We further noted that rely on an invalid search warrant that facially warrant was not overbroad.11 lacking “was not so indicia as to render official belief its in KRL II then contrasted panel II, KRL entirely existence unreasonable.” Kow, Ortiz United States Ortiz, officers, 512 F.3d at 1190. In Kow, (9th Cir.1995). warrant anonymous telephone calls relying four virtually every “authorized seizure of individual, apparently from the same computer document and file busi- [the sought a warrant to search a residence in II, Id. at 427. In KRL ness].” we ex- anonymous alleged which the informant Kow, plained that in “approval attor- explosives were stored. 887 F.2d at ney and a did not amount prepared 1367-68. The officers exceptional justifying circumstances rea- took it first to a attor- deputy district officers, sonable reliance because ney judge, and then both of whom the lack of cause was so obvious Id. approved the warrant. We held reasonable officer would conclude were im- the officers entitled to the warrant was invalid.”12 munity part by dep- because review panel 512 F.3d at 1190. The also noted Stubbs, United States v. uty attorney judge district and the that 873 F.2d (9th Cir.1989), weighed finding in favor of that the offi- 210 that we held because explained: We appeal sup- 12. Kow was an from order pressing evidence. 58 F.3d at 428. It con- complains Ortiz the warrant lacked following severability tains the comment on probable veiy cause—the situation con- relevant to our case: by Supreme fronted Court in ... Leon. government maintains that even if 104 S.Ct. 3405.... In categories some of the warrant were over- explaining parameters good faith broad, certain sections of warrant were exception, distinguished Leon between war- pursuant valid and evidence seized to these facially rants are invalid for lack of suppressed. sections should not be See particularity lacking and those so in indicia Gomez-Soto, United States v. 723 F.2d probable cause as to render an officer's However, 1984). Cir.... “sever- "entirely belief in its existence unreason- Cardwell, always possible.” ance is not able.” Id. at 104 S.Ct. 3405. Deter- particular, portion F.2d at 78. In "[i]f no mining whether certain facts constitute sufficiently particularized of the warrant is probable ascertaining cause differs from muster, pass constitutional then total facially whether a warrant is so overbroad suppression required. Otherwise the precludes that it reasonable reliance. Leon general abuses of a search would not be inadequate probable teaches that cause prevented.” Id. necessarily does not render warrant fa- Here, categories none of the fourteen cially prevent invalid nor reasonable belief by seizable documents was limited refer probable in the existence of cause. The any alleged activity. Only ence to criminal existence of cause be difficult G, Category authorizing seizure of tax re this, Recognizing to determine. Leon and turns since was limited as to time. progeny encourage its officers to consult M, Although Category authorizing the sei legal rely opinions. officers and on their zure of all documents related to HK Video's " accomplished, Once this is 'there is liter- dealings with other businesses sublicensed ally nothing policeman T.V., overbroad, more the can do in arguably HK was not " seeking comply with the law.’ Id. at “severance is not available when the valid 3405, quoting Stone Pow- portion relatively insig of the warrant 'ais ell, 465, 498, part' nificant of an otherwise invalid C.J., (1976) (Burger, L.Ed.2d ... con- Jury Subpoenas, search.” re In Grand curring). (quoting Spilotro, F.2d at 858 967). 887 F.2d at 1370-71. was so reference to the lack of cause obvious contained no any reading officer merely reasonable activity and described criminal documents, that the warrant in- warrant would conclude its “facial classes of broad Kow, facially invalid. See preclude validity enough was obvious II, KRL 512 F.3d at 1192. 428-29.” at 1190 reliance.” 512 F.3d reasonable 212). Stubbs, F.2d at both (citing Our decisions these cases illustrate were obvi- and Stubbs the warrants Kow objectively reasonable standard invalid on their faces. ously applied case-by-case on a basis. must that an reliance They suggest also officer’s II, upon called In KRL we were attorney on the review a district in a reasonable reliance more determine magistrate is reasonable at least until the involving two warrants.13 complex setting himself to broaden the search officer seeks were entitled to held that the officers We beyond initially scope ap- warrant well first warrant immunity on a then, appropri- Even reliance is proved. reliance on review based on their ate unless reasonable officer would attorney and the be- district that “the warrant was conclude lacking in indicia of it was not “so cause invalid.” belief cause as to render official unreasonable,” recognizing “that implicitly Analysis C. disagree could as to reasonable minds supported review of Court and Ninth whether Our (inter- addressing at 1191 cases reasonable reli- January 11 warrant.”14 Id. Circuit omitted). the offi- considerations that We denied ance reveals certain nal citation be an immunity might on the second transform what otherwise ab- qualified cers working probable question guide if stract into a for “[e]ven warrant because ‘permeated Among KRL was officers. these consider- to believe existed (1) offi- are: whether it was reasonable fraud’ since no reasonable ations warrant, discovery apply of a the officer to for the see could conclude that the for cer 1092; showed ledger Motley, and several checks 1990 (2) engaged whether there was sufficient primarily that KRL had been (3) I, warrant, id.; activity 1990.” KRL cause to issue a see fraudulent since invalid, facially “ap- at 1117. concluded that whether the warrant was 384 F.3d We Grok, 1284; 124 magistrate 540 at S.Ct. by attorney an and a did see U.S. proval (4) reliance, properly identi- whether the warrant justify reasonable because not warrant, II, scope they opin- within the returned F.3d is our second 13. KRL 512 warrant, previously sought We addressed ion in the case. the court and a second immunity qualified of absolute and dating issues authorizing back seizure of documents arising underlying warrants in KRL out of Id. at to 1990. 1109. Moore, (9th Cir.2004) ("KRL 384 F.3d 1105 " I"). explained opinion we In this explained 14. We that the first warrant 'had purchased April had a defunct KRL temporal (limiting a more reasonable limit’ underground gas- gasoline and had station an 1995), dating the search to documents back to district oline tank removed. Id. at 1108. The alleged activity and tax 'it fraudulent evasion investigation attorney into commenced 1997,' alleged dating to ‘it hazardous water possible environmental contamination and 1996,' alleged and 'it violations in 1995 and procured providing for the a first warrant from KRL that Womack withdrew funds range creat- of a broad of documents seizure ” expenses illegal activities.’ personal at 1108-09. January ed Id. since I, (quoting at KRL 384 F.3d at 1191 pursuant The officers undertook a search 1116). warrant, finding after evidence but 1044 searched, challenged

fied the limited matters to be see tiffs whether the affidavit es- Kow, Stubbs, 427; at see also F.3d tablished cause to believe that (5) 212; fairly officer residence, F.2d at whether the Bowen could be found at the but sought superiors, review his or her the district court denied that claim. On II, magistrate, counsel and a see KRL interlocutory appeal from the district (6) 1190; the officer’s whether qualified immunity, court’s denial of we misunderstanding was reasonable even accept the district court’s determination where there was no cause. See that there was sufficient probable cause to Leon, U.S. S.Ct. apply allow the officer to nighttime search warrant and for the applied

All of these factors should be issue the warrant.15 a manner consistent with the immuni- perspective Court’s Second, the warrants were valid. ty “all “amply” protect should but They adequately identified the location to plainly incompetent knowing- or those who searched, arrested, the person to be ly Malley, violate the law.” and the items to Regardless be seized. II, 1092; see also KRL whether there was cause to F.3d at 1189. search for firearms and indicia of membership, these limited items were Ill properly identified on the face of the war- application of these factors to the rant.16 present compels case determination reasonably the officers relied on their su- Third, Officer scrupu- Messerschmidt periors, attorney, mag- the district and the lously proper procedures followed the istrate to alleged correct the over breadth seeking the arrest and search warrants. in the search warrant. The warrant affidavit was reviewed his First, us, sergeant this case comes to we ac- Messerschmidt consulted a cept Moreover, that it was reasonable for the lieutenant. officers the warrants were apply for the warrant deputy attorney and that there reviewed district be- was sufficient probable to, cause for the war- fore presented by, were reviewed court, rant to issue. In the district plain- signed by and a magistrate. Messer- Indeed, night- accordingly, the decision to conduct a we view the warrant in that light. time may search of Mrs. Millender's home case, disturbing the most decision in this majority's 16. concern with the "breadth” appears Mrs. Millender to have had no con- really of the warrant is a concern with wheth- underlying Judge nection with the crime. support er there was cause to the Fernandez, a member of the initial three- questioned provisions of the warrant. See judge panel, recognized concurring in this his Op. upon 1027-28. In the case relied "[wjhen opinion, noting: I read and reread majority, the United States v. SDI Future it, supports the warrant and the affidavit that Health, (9th Cir.2009), 568 F.3d 684 we ex- away feeling I come with the that there is plained that for a warrant not to be "over- extremely support little for the search of a broad” there must be cause to seize person's third home all for firearms and am- warrant, particular thing the named in the County Ange- munition.” Millender v. Los probability and that this means "a fair that les, (9th Cir.2009). 564 F.3d Mrs. contraband or evidence of a crime will be appears Millender’s connection to Bowen particular place, found in a based on the be that at one time she had been Bowen’s totality of circumstances.” Id. at 702-03 However, Diaz, foster mother. the district court (quoting United States v. nighttime (9th Cir.2007)). held that the decision to conduct a Probable cause is dis- reasonable, search of the residence was and cussed later in this dissent. search, than firearms other might include Court di- the followed schmidt that shotgun, I think the “detached the sawed-off to seek the in Leon rections firearms the magistrate.” inclusion of other a neutral officer’s scrutiny of 913,104 warrant, certainly objec- proper, if not was S.Ct. U.S. tively reasonable. there were rea- accepting that Despite warrants, the seeking grounds thought that sonable could the officer have How probable cause was sufficient that there gang for indicia of mem- he could search warrant, the search issue question based bership? We must ask valid, proper and that was pre- when he what the officer knew on to have the war- were followed procedures Here, agree we pared his affidavit. a neutral approved by rants reviewed and that Bowen had fired a the officer knew majority nonetheless con- magistrate, shotgun person public, at a sawed-off that the absence cludes felon, that he had ties that he was a was so of the warrant for two sections accept also gang. with a street We not entitled to that the officer is obvious reasonably believed that Bowen the officer immunity. Despite our observa- out” at the house on 120th “hiding observation, tion, Supreme Court’s and the Why are these “facts” not suffi- Street. may frequently minds that “reasonable initially cient to allow the officer to include particular a question whether differ on the membership in gang for indicia of cause,” KRL affidavit establishes Indeed, the affi- application? his warrant Leon, II, (quoting 512 F.3d at 1189 support davit in of the warrant offered 3405), majority, precisely reasoning.17 this line of essence, to have considers the officer ultimately It there was no appears Initially, incompetent or dishonest. been evidence of a link between Bowen’s assault majority does be noted that the it should Kelly deadly weapon and his with officer was dishonest. suggest not that the gang, in a but the offi- membership street in the court Although plaintiffs district applied did not know this when he cer pres- had failed to argued that the officer warrant. Given that Bowen was all the relevant ent member, felon, had used a facts, rejected those con- the district court shotgun, possession of which sawed-off tentions, ma- nothing and there is might illegal, well be the officer rea- that con- jority’s opinion that resurrects ties sonably possible have conceived of be- Rather, majority’s opinion tention. crime, gang. and the weapon tween the relationship the lack of basically holds that court’s disagree I with the district do by Bowen and charged between the crime that nev- majority’s determination in war- the search certain items described probable there was insufficient ertheless may that the officer rant was so obvious of support a warrant for indicia cause having liable for enter- personally be held Rather, my point course, membership. is gang contrary thought. in tained a Of the officer only that it was reasonable for on whether the light my perspective assaults, and the concealment specialized train- for such officer set forth his 17. The crimes, gang-related and his He further ing weapon(s) in the field of used in such assaults." participation in of interviews hundreds investigation had shown that that his stated or were individuals who had been sentenced Crip had ties to the Mona Park Bowen that sentenced. He stated these about to be gang, that this fact in connection and asserted provided him with "information interviews underlying justi- crime with the nature gang- pertaining in to the manners which night the warrant. fied service of committed, are the motives related assaults might to think that qualified there be sufficient nied immunity to Officer Hall cause, at least to include the re- because we found that “no reasonable offi- quest application in the initial that would cer could discovery conclude of a superiors, then be reviewed his a depu- ledger and several checks showed ty attorney a magistrate. district and See primarily KRL had been in engaged II, KRL at 1192 (indicating F.3d activity fraudulent since 1990.” 512 F.3d required ques- officers should not be “to I, 1117). (quoting at 1192 KRL 384 F.3d at tion reasonable assessments of However, qualified our denial of immunity attorneys by government magis- cause and (1) was based on: Hall’s in “leadership role trates”). (2) the overall investigation;” our factual may well The officer have made factual determination that “the discovery of a Groh, legal and mistakes. See at ledger and predating several checks (J. 566-67, Kennedy, 124 S.Ct. 1284 dis- allegedly activity by fraudulent years five senting). may have thought He that the provide did not sufficient cause to felon, gang, facts that Bowen was a mem- 1990;” search for dating documents back to ber, and had committed an assault with a (3) our conclusion that the warrant deadly weapon created obviously facially II, was invalid. KRL search for indicia for gang membership. 512 F.3d at Although 1192-93. Officer viewed, He was wrong, objectively but his Messerschmidt have been in charge of objectively mistake was not unreason- Bowen, investigation he did not have able.18 leadership position similar to that held way ascertaining One whether a mis- by Furthermore, Hall in KRL /J.19 his taken belief was compare reasonable is to incorrect factual conclusion not was as far- it to other cases where we have found that II, fetched as that in issue KRL and the an officer was not entitled to obviously warrant was not facially invalid. immunity. I precedent can find no clear might It also be noted that supports majority’s conclusion. warrant, when Messerschmidt sought the Kow, 58 F.3d “the lack of probable opinions neither of our in KRL had issued. cause was so that any obvious reasonable However, Ortiz, we had decided 887 F.2d officer would conclude that the warrant case, 1366. In that sought officer II, facially was invalid.” KRL at F.3d warrant to weapons search a home for Similarly, Stubbs, 1190. explosives based only telephone four KRL invalid. II, Perhaps calls the same anonymous person. the most Id. analogous There, Nonetheless, case is KRL II. we de- at 1367. while finding that assertion, Contrary majority’s particularity requirement.” see as "the 1033-35, Op. this conclusion based applica 1284. It is in the Groh, dissenting opinion on the Malley "particularity requirement” tion of the ato application specific but on the of the standard set fact situation that the dissents in Mal opinions. ley forth in those and Groh are evaluating determination of relevant when whether a "well applied trained officer whether officer "should not have would have illegal despite Malley, known that the for the warrant.” search was {Leon, magistrate’s 106 S.Ct. 1092. authorization” 468 U.S. at 3405), 922 n. requires 104 S.Ct. an evalu particular ation of the facts of the case. In 19. Unlike Officer Hall who executed the Malley, II, the Court did not determine whether search at issue in KRL 384 F.3d at "petitioner's objec conduct ... was assigned in fact Officer Messerschmidt was to traffic tively reasonable.” 475 U.S. at 345 n. during control on the street the search of the Groh, S.Ct. 1092. In the Court referred to this Millender residence. all the items must exist to seize the able cause support cause to was no there in the war- particular type described officer warrant, police the of granted we rant”). Nonetheless, ap- have held commenting that an we immunity, qualified that evi- orders may peals suppression from constitutional dimensions of “error of a warrant respect portions to the from valid committed with dence have been warrant, portions.20 the may but it was severed from invalid be issuance that the Similarly, recognize who made not officers we should judge, I at 1369. would for one clause mistake.” Id. lack of cause critical Ortiz, here, the officer’s not that as warrant does mean hold otherwise valid objec to establish was ‘sufficient the war- “conduct that the officer’s decision seek ” Id. at 1371 rant, reasonable behavior.’ in the tively to include that clause or even Freitas, warrant, United States (quoting necessarily unreasonable.21 was Cir.1988)). (9th 1425, 1431 Instead, sup- the warrant is at least where and is ported by probable cause Moreover, ap- majority’s opinion valid, question there is some as but unnecessarily guiding to extend pears support a section sufficiency of evidence Malley, In opinions. Supreme Court warrant, showing absent some then was “wheth- question that the stated Court or of part faith on the of the officer of bad in peti- officer reasonably er a well-trained all the relevant known present a failure to known that his would have position tioner’s (see Leon, facts to the probable cause to establish affidavit failed 3430), the officer should applied have for the should not and that he rely superiors, on his be allowed to 345, 106 S.Ct. 1092. warrant.” magistrate to cor- attorney district and the Groh, immu- qualified the Court denied Certainly, that rect over-breadth. not describe the warrant “did nity because ” here, the case as the officer’s should be and “was so seized at all the items to be the basis on clearly affidavit sets forth regard that we must obviously deficient mistakenly thought the officer he which within the as ‘warrantless’ the search could seek a warrant to search indicia law.” 540 U.S. at meaning of our case gang membership. of Here, really is no there that there question Moreover, provisions the two of the war- it was not issue authorizing searches rant issue—those facially invalid. mem- for firearms and for indicia very appear to have been bership of a provision I that each recognize —do the warrant was important either when supported by warrant should search noted, First, later. Jury initially sought or In re Grand probable cause. See 10, 1987, was to primary purpose Subpoenas Dated Dec. Cir.1991) Second, because the dis- arrest Bowen. (stating “prob- Health, shotgun. It seems doubtful a doc- and his sawed-off we “endorsed In SDI Future found, severance,” shotgun been "pre- that had he or the noting we had trine suppressed be- would have been evidence viously when a warrant allowed severance the overbreadth of the warrant. unduly cause of particularity because of some lacked language in the warrant.” 568 F.3d broad omitted). course, (internal premise operating We com- remains citation 21. Of support where cause to that we do not allow severance that there was no mented What particular ‘a of the warrant. portion valid of the warrant is relative- section “the only prong the second insignificant part’ an otherwise invalid at issue is ly officer, faith, Kow, 428). good immunity, F.3d at whether (quoting Id. search.” magistrate. Here, could have relied on the search was for Bowen the focus of upheld trict court provision the warrant’s IV for, allowing of, the search and seizure Last, least, but not I am concerned that indicia of ownership, home and because the majority’s the parsing of the search war- majority concedes that the officers were rant will lead to uncertainty and needless parts entitled search for disassembled litigation. Denying qualified immunity of the sawed-off shotgun, questioned the where, here, as the defect in the warrant provisions expand did not scope the actual (a lack of cause for two sections Third, of the search. only as the search warrant) of a expand did not the scope resulted in the seizure of Mrs. Millender’s beyond what was constitutional and did not (and shotgun and a box of ammunition no any harm, cause real creates considerable indicia of gang membership), it does not incentive to challenge all but the narrowest appear that plaintiffs really were harmed of warrants. Even if the overbreadth of a by the search questioned authorized the warrant produce any does not evidence (as provisions of the warrant contrasted to and does any harm, not result in real entry into the home general and the disgruntled person can search). overcome a claim As Justice Kennedy noted in his qualified of Groh, immunity by showing dissent in Court has “ stressed that officer did not purpose ‘the of have encouraging sup- cause to recourse to the procedure’ port can part some of the warrant. This served best rejecting overly technical contrary seems to the purpose qualified standards when courts review warrants.” immunity. Malley, See 475 U.S. at 540 U.S. at (quoting S.Ct. 1284 106 S.Ct. 1092. Gates, 2317). 462 U.S. at Moreover, approach may well inter- Here, even accepting that there was no fere with a ability officer’s prop- probable cause to support questioned erly protect public and investigate provisions warrant, because this de- crimes. Instead of investigating a possible fect did not expand the scope of the search relationship between an assault with a nor plaintiffs, real harm to the it deadly weapon by a convicted mem- should not defeat an otherwise appropriate ber and the gang, felon’s street majori- grant qualified immunity. ty would hold the officer personally liable This conclusion is reinforced pur- for grasping that these facts did not pose qualified immunity: “amply” support the issuance of a warrant any- protect officers other than “the plainly in- thing other than the felon particu- and the competent or those who knowingly violate weapon. lar appears This type be the II, the law.” KRL (quot- F.3d at 1189 “high level of generality” that Justice ing Malley, 475 U.S. at against Thomas warned in his dissent in 1092). Here, noted, sugges- there is no Groh, 124 S.Ct. 1284. tion that the officer “knowingly violated Furthermore, approach this may well dis- the law.” While the majority concludes courage officers from following up on leads that the officer should have known that the they would bring otherwise broad, search warrant was too length superiors attention of their per- fear of it go has to to make that point suggests sonal liability if unwittingly err that an officer’s failure to so reason cannot their judgment. be considered plain incompetence. In- deed, very fact that judges on this en panel

banc disagree itself, point, weighs in granting favor of * To recap,although im- I think that offi- munity. cer reasonably could sought have to search I limit the shotgun, magistrate, properly and the other than the firearms warrant.22, Ortiz, Here, of was not as an “error majority the that there with agree relationship be- showing may of a dimensions have been constitutional a sufficient membership to of gang respect the assault and with to the issuance tween committed of for the inclusion warrant, provide judge, but it was the not the the membership in the search gang of indicia critical mis- officers who made the police But, factors the applying warrant. hold F.2d I would take.” 887 and our Supreme the Court stressed application for a search that the officer’s court, the officer’s I cannot conclude that included for other searching which in the warrant provision inclusion membership and indicia of gang firearms pre- as to objectively unreasonable was so objectively and that was not unreasonable super- on the of his approval reliance clude immuni- is entitled the officer magis- visors, attorney and the the district ty- the officer to It was reasonable for trate. warrant, the there was apply for SILVERMAN, Judge, Circuit warrant, the the warrant cause to issue TALLMAN, joins, Judge, whom Circuit invalid, prop- the warrant not was dissenting: the matters to be erly identified limited Judge Parts II join through I IV of seized, proper and the officer followed the dissent, separately but write Callahan’s supe- his seeking review procedures points. several emphasize riors, magistrate. a attorney a and district qualified immunity “pro- The doctrine of Moreover, questioned at least to the as liability for government tects officials from the appear it does not provisions, mistakes,” good misjudgments faith and any information from hid relevant officer precisely is here. and the situation his magistrate or and superiors his Gomez, Clement on plainly presented grounds affidavit Cir.2002). judge The a defective issued sought gang member- he indicia of which deputies mistakenly relied warrant and Furthermore, prec- no I have found ship. it, entirely in on but their mistake was suggests may an officer not edent that faith. The did not act until good magistrate rely superiors on his they obtained the warrant and did he makes an honest mistake when them to only what authorized that there cause to thinking is not They engage did form do. valid provision a in an otherwise support They rough-up did not misconduct. contrary conclu- majority’s warrant. They did informa- put residents. false plaintiffs, little real is of benefit sion affidavit, exculpatory tion in the conceal unfairly punishes line officer for information, property or seize not men- most, what, part on the a failure warrant. attorney tioned in the superiors, deputy district four-corners his enjoy deadly weapon, and was a felon and irony judges, is who 22. There some immunity, holding a line judicial member were sufficient to allow for personally for the liable officer gang membership. There of indicia of system as set of warrant when the breadth anything suggestion that no the officer hid depends by the Court forth superiors, attorney, the district or from his scrutiny magistrate” a neutral "detached However, magistrate magistrate. 3405), {Leon, immunity, judicial cascades down has blame properly perform his failed to line & Sullivan on the officer. As Gilbert duty. was clear her The officer’s mistake or police- "a in The Pirates noted Penzance: thought that the facts his affidavit. He from happy lot is not one.” man’s with a had an assault that Bowen committed This is not a police case where officers say, Millender gun con- house— sought to evade the warrant requirement; Crip cealed Mona Park clothing a—such contrary, they sought comply discovery would have prove tended to with it. totally The record is devoid of guns were Bowen’s and not the Millen- evidence deputies acted other ders’. It commonplace for search war- than in good faith. rants to authorize the seizure of items that help identify can persons in

Qualified control of the immunity protects from liabili premises or ty contraband. Ewing “all but See v. plainly incompetent and Stockton, City 1218, those who knowingly violate the law.” Cir.2009). Malley 335, v. Briggs, deputies’ belief the va- (1986). 89 L.Ed.2d 271 lidity Does of this portion of the warrant was deputies’ mistake rise to the level of entirely reasonable. plain incompetence or intentional violation Qualified immunity insulates offi- of the law? I imagine cannot a clearer cers from the threat personal liability so case of reasonable error than this one. In can office with “execute[their] determining whether deputies reason the decisiveness and the judgment re- ably warrant, relied on the “all of the quired by public good.” Scheuer v. circumstances ... be considered.” Rhodes, 232, 240, 416 U.S. Leon, United States v. 923 n. (1974). 40 L.Ed.2d 90 The tradeoff for (1984). 82 L.Ed.2d 677 perceived societal benefit is that some It is undisputed that deputies knew wrongs go will uncompensated. That is Bowen to be a very convicted felon with a the nature of immunity, it and is a tradeoff violent history, including convictions for adopted by Court itself. assault deadly with a weapon and being a in possession felon of a firearm. They also

knew that reportedly he just had shot at

the victim several times with a short-bar shotgun.

rel felon, As a convicted Bowen prohibited from possessing firearms.

Under such circumstances, how can it be

“entirely just unreasonable” —not a mis entirely take but unreasonable —for the DAAS, Abdel aka Razzaq Abdel deputies to have relied on a judge-signed Daas, Mohammad warrant authorizing the seizure of all of Petitioner, guns? Bowen’s Auken, See Ortiz v. Van 1366, 1370(9th Cir.1989). Jr., Eric H. Attorney HOLDER I also do not deputies see how the can General, Respondent. be deemed to plainly incompetent, or to knowingly law, have violated the rely- No. 06-71898. ing the warrant’s authorization to seize United Appeals, States Court of Mona Crip Park gang paraphernalia. The Ninth Circuit. had cause to believe both that Bowen was tied to the Mona Argued July and Submitted Park Crip gang and that he was residing Aug. Filed at the Millender residence. Had Mona Crip Park paraphernalia been found proximity

close guns during the search

Case Details

Case Name: Millender v. County of Los Angeles

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 24, 2010

Citation: 620 F.3d 1016

Docket Number: 07-55518

Court Abbreviation: 9th Cir.