Messerschmidt v. Millender, No. 10-704: United States Supreme Court Reaffirms the Leon Good Faith Exception, Finds Officers are Entitled to Qualified Immunity
On February 22, 2012, the United States Supreme Court issued an opinion in Messerschmidt v. Millender, No. 10-704, wherein the Court reaffirmed the good faith exception to the exclusionary rule, as set forth in United States v. Leon, 486 U.S. 897, 922-923 (1984). Florida’s criminal defense and criminal appeals attorneys should take a few minutes and read through Messerschmidt, because the Court applies the Leon standard to an arguably facially overbroad search warrant.
The case began as a police investigation into Jerry Ray Bowen’s attempted shooting his girlfriend, Shelly Kelly. As part of the investigation, police drafted a warrant to search the home of Bowen’s former foster-mother, Augusta Millender. Because Shelly Kelly told officers about Bowen’s gang membership and prior violent and firearms offenses, the warrant at issue was drafted to search for and seize the following:
“All handguns, rifles, or shotguns of any caliber, or any firearms capable of firing ammunition, or firearms or devices modified or designed to allow it [sic] to fire ammunition. All caliber of ammunition, miscellaneous gun parts, gun cleaning kits, holsters which could hold or have held any caliber handgun being sought. Any receipts or paperwork, showing the purchase, ownership, or possession of the handguns being sought. Any firearm for which there is no proof of ownership. Any firearm capable of firing or chambered to fire any caliber ammunition.”
“Articles of evidence showing street gang membership or affiliation with any Street Gang to include but not limited to any reference to ‘Mona Park Crips’, including writings or graffiti depicting gang membership,activity or identity. Articles of personal property tending to establish the identity of person [sic] in control of the premise or premises. Any photographs or photograph albums depicting persons, vehicles, weapons or locations, which may appear relevant to gang membership, or which may depict the item being sought and or believed to be evidence in the case being investigated on this warrant, or which may depict evidence of criminal activity. Additionally to include any gang indicia that would establish the persons being sought in this warrant, affiliation or membership with the ‘Mona Park Crips’ street gang.”
Messerschmidt, No. 10-704, slip op. at pg. 4. Two affidavits in support of the warrant outlined the officer’s extensive training and experience in gang-related activity, as well as why the officer thought there was sufficient probable cause to support the issuance of the warrant. See Id.
After Millender sued the officers, including Messerschmidt, under 42 U.S.C. section 1983, alleging that the officers subjected them to an unreasonable search and seizure under the Fourth Amendment, the officers claimed qualified immunity. The District Court found that the officers were not entitled to the defense, and the Ninth Circuit agreed. The United States Supreme Court reversed.
In holding that the officers were entitled to qualified immunity based on their good faith execution of the warrant, the Court reasoned that (1) based on the circumstances of the case, it would not have been “entirely unreasonable” for an officer to believe that there was probable cause to search for all firearms and firearm-related materials; (2) based on the facts as contained in the affidavit, it was reasonable for officers to believe that evidence of Bowen’s gang membership would aid the prosecution of Bowen; and, (3) by having the warrant reviewed and approved by police supervisors and a neutral magistrate, the officers “took every step that could reasonably be expected of them.” The Court further reasoned that the Ninth Circuit erred in relying on Groh v. Ramirez, 540 U. S. 551 (2004), because that case was factually distinguishable in that Groh concerned a warrant that failed to describe the items to be seized at all.
Justice Sotomayor’s dissent (joined by Justice Ginsburg) raises an interesting point: that as the case wound its way through the courts, all 13 Judges who had presided over the case came to the same conclusion: that the officers were not entitled to qualified immunity. With that in mind, it seems rather shocking that it a majority of the High Court came to the completely opposite conclusion! How can that be? At first, you might think that political bias may have played a role. After all, the majority opinion was delivered by Chief Justice Roberts, and joined by Justices Scalia, Kennedy, Thomas, and Alito. But then, as I reread the majority opinion, I think I found the answer: the majority’s analysis focused on the facts as contained in the warrant and affidavits at the time that they were drafted and executed by the officers. However, in the dissent, Justices Sotomayor and Ginsburg focused their analysis on the officers’ testimony which was given in discovery proceedings, while the lawsuit was being litigated in court, a point in time which is well after the warrant was drafted and executed. See Messerschmidt, slip op. at pg. 10, n. 2 (noting that the dissent relies on facts which were outside the affidavit, including Messerschmidt’s deposition testimony and other evidence, and only referred to the probable cause affidavit twice).