Officer Immunity, Search Warrants

Criminal Law Update
By F. Martin Tieber, Kristoffer Tieber
Tieber Law Office
Oct 30, 2012

Messerschmidt v Millender, __ US __; 132 S Ct 1235; 182 LEd2d 47 (2012)(feb’12). This case arose from a search warrant police obtained after Jerry Ray Bowen shot at his ex-girlfriend with a sawed-off shotgun. A tip led Detective Messerschmidt to the home of Bowen’s former foster mother, Augusta Millender. Messerschmidt obtained a warrant to search Millender’s home for any evidence of Bowen, his guns and/or items showing Bowen’s gang membership or affiliation. A sheriff’s SWAT team executed the warrant but found neither Bowen nor his gun. Instead they seized Millender’s shotgun and a box of ammunition, both of which she lawfully possessed. Millender brought a section 1983 action against Messerschmidt. The issue in this case is whether reasonable, well trained officers should have known that the warrant failed to establish probable cause. The Ninth Circuit held that Messerschmidt and the other officers should have known, and denied qualified immunity to the officers relying on Malley v Briggs, 475 US 335, 106 S Ct 1092, 89 L Ed 2d 271 (1986). However, in a 6-3 decision, the SCOTUS reversed the Ninth Circuit holding that the officers were entitled to qualified immunity for executing a search warrant for firearms and evidence of gang activity in a home after a victim reported that the suspect had threatened her with a gun. The Court found that the facts of this case would lead a reasonably trained officer to believe that Bowen owned more weapons than just the sawed-off shotgun used in the shooting. While the dissenters felt that the gang-related language had nothing to do with the crime, the majority held that evidence of gang related activity would “prove helpful in prosecuting him for the attack.” The opinion was authored by Chief Justice Roberts. Justice Breyer filed a concurring opinion. Justice Kagan filed an opinion concurring in part and dissenting in part. Justice Sotomayor filed a dissenting opinion, which was joined by Justice Ginsburg.