holding that probable cause to believe that guns are present in a location does not establish probable cause to search, as "the possession and purchase of guns by itself does not constitute contraband or evidence of a crime."
How later courts described this case
- holding that probable cause to believe that guns are present in a location does not establish probable cause to search, as "the possession and purchase of guns by itself does not constitute contraband or evidence of a crime."
- "[W]e are deferential to a magistrate's determination of probable cause and consider the language of a warrant and affidavit in a common sense and practical manner."
- court could not consider whether affidavit narrowed the scope of warrant where there was no evidence that affidavit either was physically attached to the warrant or accompanied the warrant on the search
- “Even when only a portion of a search warrant is invalid, the subject of the search suffers a constitutional violation.”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AUGUSTA MILLENDER; BRENDA
MILLENDER; and WILLIAM JOHNSON,
Plaintiffs-Appellees,
v.
COUNTY OF LOS ANGELES; ROBERT
J. LAWRENCE (292848); CURT
MESSERSCHMIDT (283271),
Defendants-Appellants,
and No. 07-55518
LOS ANGELES COUNTY SHERIFF’S D.C. No.
DEPARTMENT; LEROY D. BACA; CV-05-02298-DDP
SCOTT WALKER (188188); RICK
RECTOR (280600); DONALD OPINION
NICHIPORUK (213625); RICHARD
SCHLEGEL (280735), e/s/a M.
SCHLEGEL; BRICE STELLA (402018),
e/s/a D. STELLA; JACK DEMELLO
(223333), e/s/a J. DERNELLO;
DAVID O’SULLIVAN (293952); JACK
RITENOUR (164927); and IAN STADE
(279464),
Defendants.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
December 14, 2009—San Francisco, California
Filed August 24, 2010
12709
12710 MILLENDER v. COUNTY OF LOS ANGELES
Before: Alex Kozinski, Chief Judge, Pamela Ann Rymer,
Barry G. Silverman, Susan P. Graber, Raymond C. Fisher,
Richard C. Tallman, Johnnie B. Rawlinson, Jay S. Bybee,
Consuelo M. Callahan, Milan D. Smith, Jr. and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta;
Dissent by Judge Callahan;
Dissent by Judge Silverman
12714 MILLENDER v. COUNTY OF LOS ANGELES
COUNSEL
Eugene P. Ramirez, Esq., Manning & Marder, Kass, Ellrod,
Ramirez LLP, Los Angeles, California, attorney for the appel-
lants.
Robert Mann, Esq., Mann & Cook, Los Angeles, California,
attorney for the appellees.
OPINION
IKUTA, Circuit Judge:
Plaintiffs Augusta Millender, Brenda Millender, and Wil-
liam Johnson (collectively, “the Millenders”) filed this suit
under 42 U.S.C. § 1983 against the County of Los Angeles,
the Los Angeles County Sheriff’s Department, and several
individual members of the Sheriff’s Department, alleging vio-
lations of their civil rights. Their complaint arose from a
search pursuant to a warrant obtained by Detective Curt
Messerschmidt of the Los Angeles County Sheriff’s Depart-
ment and executed under the supervision of Sergeant Robert
Lawrence. Messerschmidt and Lawrence (collectively, “the
MILLENDER v. COUNTY OF LOS ANGELES 12715
deputies”) appeal from the district court’s determination that
they were not entitled to qualified immunity with respect to
the alleged overbreadth of the search warrant. Because the
challenged sections of the warrant were “so lacking in indicia
of probable cause as to render official belief in its existence
unreasonable,” Malley v. Briggs, 475 U.S. 335, 345 (1986),
we affirm.
I
On November 4, 2003, Messerschmidt applied for an arrest
warrant for Jerry Ray Bowen at 2234 E. 120th St., Los Ange-
les, and for a warrant to search that address and seize speci-
fied property in connection with “a spousal assault and an
assault with a deadly weapon.” Messerschmidt prepared an
affidavit, entitled “Statement of Probable Cause.” The affida-
vit contained the following facts: The victim of the assault,
Shelly Kelly, stated that she had a “dating relationship” with
the suspect, Bowen. Kelly decided to end the relationship due
to Bowen’s violent temper and because Bowen had previously
physically assaulted her. Because of Bowen’s violent nature,
Kelly asked the Sheriff’s Department to send officers to pro-
tect her while she gathered some of her property from the res-
idence that she and Bowen shared. Once the requested
officers arrived, Kelly began to move her property to her car.
After approximately twenty minutes, the officers received an
emergency call and had to leave, saying they would return
after they handled the call.
According to Kelly, as soon as the officers left, Bowen
appeared and screamed, “I told you to never call the cops on
me bitch!” Bowen physically assaulted Kelly and attempted
to throw her over the top railing of the second story landing
of their residence. Bowen grabbed Kelly, bit her, and tried to
drag her by the hair back into their residence. When Kelly
resisted by bracing herself against the door, Bowen grabbed
both of Kelly’s arms, but Kelly was able to slip out of her
shirt and run to her car. Bowen followed seconds later, now
12716 MILLENDER v. COUNTY OF LOS ANGELES
holding “a black sawed off shotgun with a pistol grip.” Stand-
ing in front of Kelly’s car, Bowen pointed the shotgun at
Kelly and shouted, “If you try to leave, I’ll kill you bitch.”
Kelly was able to escape by leaning over in her seat and floor-
ing the gas. Bowen jumped out of the way and fired one shot
at her, blowing out the front left tire of Kelly’s car. Chasing
the car on foot, Bowen fired four more times in Kelly’s direc-
tion, missing her each time.
Shortly after, Kelly located police officers who immedi-
ately recognized her as the same person they had been pro-
tecting before they left for the emergency call. Kelly reported
the shooting, described Bowen’s firearm as a “black sawed
off shotgun with a pistol grip,” and gave the officers four pho-
tos of Bowen to aid their investigation.
Based on this information, Messerschmidt put a photo of
Bowen into a “six pack” line-up. When Messerschmidt
showed the photo line-up to Kelly, she immediately identified
Bowen and circled his picture. Messerschmidt’s affidavit
states that “[t]he person [Kelly] identified is Jerry Ray Bowen
. . ., a known Mona Park Crip gang member.” Kelly told
Messerschmidt that Bowen’s current address was 2234 E.
120th St., Los Angeles.
Messerschmidt requested a “Ramey Warrant” to arrest
Bowen, because Kelly knew him personally and identified
him as the person who physically assaulted and shot at her.1
According to the affidavit, Messerschmidt conducted an “ex-
tensive background search” on Bowen using “departmental
records, state computer records, and other police agency
records.” Using these records and information provided by
Kelly, Messerschmidt confirmed that Bowen resided at 2234
E. 120th St. in Los Angeles.
1
A “Ramey warrant” is a warrant authorizing the arrest of a suspect
within the home before the filing of criminal charges by the district attor-
ney. Goodwin v. Superior Court, 108 Cal. Rptr. 2d 553, 555 (Ct. App.
2001) (citing People v. Ramey, 545 P.2d 1333 (Cal. 1976)).
MILLENDER v. COUNTY OF LOS ANGELES 12717
Messerschmidt’s affidavit also requested night service of
the search warrant, giving two reasons. First, “the investiga-
tion has shown that the primary suspect in this case has gang
ties to the Mona Park Crip gang based on information pro-
vided by the victim and the cal-gang data base.” Second,
Messerschmidt believed that “the nature of the crime (Assault
with a deadly weapon) goes to show that night service would
provide an added element of safety to the community” as well
as to those personnel serving the warrant. The affidavit con-
cluded by stating that Messerschmidt “believes that the items
sought will be in the possession of Jerry Ray Bowen and the
recovery of the weapon could be invaluable in the successful
prosecution of the suspect involved in this case, and the cur-
tailment of further crimes being committed.”
In addition to preparing the affidavit, Messerschmidt com-
pleted a “Search Warrant and Affidavit” form to authorize the
search of the residence identified in “Attachment 1” and the
seizure of property identified in “Attachment 2.” Attachment
1 identifies the “location to be searched” as 2234 E. 120th St.
in Los Angeles. Attachment 2 sets out two categories of items
to search and seize. The first paragraph lists:
All handguns, rifles, or shotguns of any caliber, or
any firearms capable of firing ammunition, or fire-
arms or devices modified or designed to allow it to
fire ammunition. All caliber of ammunition, miscel-
laneous gun parts, gun cleaning kits, holsters which
could hold or have held any caliber handgun being
sought. Any receipts or paperwork, showing the pur-
chase, 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.
The second paragraph lists:
Articles of evidence showing street gang member-
ship or affiliation with any Street Gang to include
12718 MILLENDER v. COUNTY OF LOS ANGELES
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 pho-
tographs 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.
An additional attached affidavit recounts Messerschmidt’s
experience in gang investigations. The Search Warrant
includes Messerschmidt’s attestation that the incorporated
affidavit is true and the property described in Attachment 2 is
lawfully seizable.
Messerschmidt also drafted a “Probable Cause Arrest War-
rant and Affidavit in Support Thereof” to authorize the arrest
of Bowen, which again states his address as 2234 E. 120th St.,
Los Angeles. This arrest warrant application incorporates
Messerschmidt’s affidavit by reference.
Messerschmidt was aware of other relevant facts not
included in the affidavit. First, Kelly explained to Messersch-
midt that the address she gave him, 2234 E. 120th St., was the
home of Bowen’s foster mother, Augusta Millender. Second,
Messerschmidt knew that Bowen had a previous criminal
record and was on summary probation for spousal battery and
driving without a license.2 Bowen also had several previous
2
Kelly also informed Messerschmidt of Bowen’s domestic violence
record during their interview.
MILLENDER v. COUNTY OF LOS ANGELES 12719
felony convictions and misdemeanor arrests, and was a “third
strike candidate” under California law.3 Third, in addition to
identifying the gun Bowen used as a black sawed-off shotgun
with a pistol grip, Kelly gave Messerschmidt a picture of
Bowen posing with the gun. Fourth, there was no evidence
that Bowen’s assault on Kelly was in any way gang-related.
In subsequent testimony, Messerschmidt answered “No” to
the question, “So you didn’t have any reason to believe that
the assault on Kelly was any sort of a gang crime, did you?”
Before Messerschmidt submitted the warrants and affidavit
to the magistrate, they were reviewed by his supervisors in the
Sheriff’s station, Sergeant Lawrence and Lieutenant Ornales.
In addition, Deputy District Attorney Janet Wilson signed the
search warrant, indicating that she had reviewed it for proba-
ble cause and approved it. Messerschmidt presented the
Search Warrant and Affidavit and the Probable Cause Arrest
Warrant, along with their attachments (including the affida-
vit), to a magistrate. The magistrate approved both warrants
and authorized night service.
At 5:00 a.m. on the morning of November 6, 2003, the
Sheriff’s Department’s SWAT team served the search and
arrest warrants at the 120th St. address. The SWAT team
forced open the front security door, broke a front window, and
proceeded to enter, search, and clear the house. The ten occu-
pants of the house, including the Millenders, were ordered to
exit, which they did. Once the SWAT team had secured the
residence, investigators searched the area. While Messersch-
midt and Lawrence did not participate in the search, they were
both present. The investigators conducting the search failed to
find Bowen or a black sawed-off shotgun with a pistol grip.
However, they did find and take Augusta Millender’s per-
sonal shotgun (a black 12-gauge “Mossberg” with a wooden
stock), a box of .45 caliber “American Eagle” ammunition,
and a letter from Social Services addressed to Bowen. Some
3
See generally Ewing v. California, 538 U.S. 11, 14-17 (2003).
12720 MILLENDER v. COUNTY OF LOS ANGELES
two weeks later, Messerschmidt, without SWAT assistance,
arrested Bowen in the middle of the day after discovering
Bowen hiding under a bed in a motel room.
The Millenders filed suit under 42 U.S.C. § 1983 against
the County of Los Angeles, the Los Angeles County Sheriff’s
Department, Sheriff Leroy Baca, and 27 Los Angeles County
deputies, including Messerschmidt and Lawrence. As relevant
here, the Millenders alleged violations of their Fourth and
Fourteenth Amendment rights. The parties filed cross motions
for summary adjudication on the validity of the arrest and
search warrants. The district court concluded that the arrest
warrant was facially valid, and granted the defendants’
motion for summary adjudication on this issue. The Mil-
lenders have not appealed this ruling.
The district court also held that the warrant’s authorization
to search for and seize all firearms, firearm-related materials,
and gang-related items was unconstitutionally overbroad, but
that its authorization to search for evidence tending to estab-
lish control of the premises was constitutional. Accordingly,
the court granted the Millenders’ motion for summary adjudi-
cation as to firearm- and gang-related evidence, but granted
the defendants’ motion as to identification evidence. The dis-
trict court then rejected the deputies’ claim of qualified immu-
nity on the ground that the deputies’ actions were not
objectively reasonable.
Messerschmidt and Lawrence timely appealed the district
court’s determination that they were not entitled to qualified
immunity.
II
Although we normally lack jurisdiction to consider the
denial of a motion for summary judgment, we may consider
an appeal from such an interlocutory motion where the
motion is based on a claim of qualified immunity, KRL v.
MILLENDER v. COUNTY OF LOS ANGELES 12721
Estate of Moore, 512 F.3d 1184, 1188 (9th Cir. 2008), even
when other claims against the defendants are pending below,
Behrens v. Pelletier, 516 U.S. 299, 312-13 (1996). “Our juris-
diction . . . , however, is limited to questions of law; it does
not extend to claims in which the determination of qualified
immunity depends upon disputed issues of material fact.”
Schwenk v. Hartford, 204 F.3d 1187, 1195 (9th Cir. 2000).
When facts are disputed, “we assume the version of the mate-
rial facts asserted by the non-moving party to be correct.” Id.;
see also Groh v. Ramirez, 540 U.S. 551, 562 (2004). We
review the district court’s legal determinations de novo. Elder
v. Holloway, 510 U.S. 510, 516 (1994); KRL, 512 F.3d at
1188.
III
“The doctrine of qualified immunity protects government
officials from liability for civil damages insofar as their con-
duct does not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have
known.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009)
(internal quotation marks omitted). A police officer is not
entitled to qualified immunity if: (1) the facts show that the
officer’s conduct violated a plaintiff’s constitutional rights;
and (2) those rights were clearly established at the time of the
alleged violation. See id. at 816. Although we have discretion
to address these prongs in any order, see id. at 818, we begin
in this case by considering whether the deputies’ conduct vio-
lated the Millenders’ constitutional rights, see id. at 816.
A
[1] The Fourth Amendment provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, sup-
12722 MILLENDER v. COUNTY OF LOS ANGELES
ported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. Const. amend. IV. The Supreme Court has recognized
that a search or seizure pursuant to an invalid warrant consti-
tutes an invasion of the constitutional rights of the subject of
that search “at the time of [the] unreasonable governmental
intrusion.” United States v. Verdugo-Urquidez, 494 U.S. 259,
264 (1990); see also United States v. Leon, 468 U.S. 897, 906
(1984) (“The wrong condemned by the [Fourth] Amendment
is ‘fully accomplished’ by the unlawful search or seizure itself
. . . .”). Even when only a portion of a search warrant is
invalid, the subject of the search suffers a constitutional viola-
tion. See United States v. Sears, 411 F.3d 1124, 1129 (9th Cir.
2005); United States v. Spilotro, 800 F.2d 959, 967-68 (9th
Cir. 1986) (Kennedy, J.). A search warrant that is not issued
“upon probable cause” is invalid. U.S. Const. amend. IV;
Groh, 540 U.S. at 557. “Probable cause exists when ‘there is
a fair probability that contraband or evidence of a crime will
be found in a particular place.’ ” United States v. Grubbs, 547
U.S. 90, 95 (2006) (quoting Illinois v. Gates, 462 U.S. 213,
238 (1983)). To be valid, a search warrant must also “particu-
larly describ[e]” the “things to be seized.” U.S. Const. amend.
IV; see Groh, 540 U.S. at 557.
[2] We read the Fourth Amendment as requiring “specific-
ity,” which has two aspects, “particularity and breadth.”
United States v. SDI Future Health, Inc., 568 F.3d 684, 702
(9th Cir. 2009). “Particularity is the requirement that the war-
rant must clearly state what is sought. Breadth deals with the
requirement that the scope of the warrant be limited by the
probable cause on which the warrant is based.” Id. (quoting
In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d
847, 856-57 (9th Cir. 1991)). In determining whether a war-
rant’s description is sufficiently specific to meet these Fourth
Amendment requirements, we consider the following ques-
tions:
MILLENDER v. COUNTY OF LOS ANGELES 12723
(1) whether probable cause exists to seize all items
of a particular type described in the warrant; (2)
whether the warrant sets out objective standards by
which executing officers can differentiate items sub-
ject to seizure from those which are not; and (3)
whether the government was able to describe the
items more particularly in light of the information
available to it at the time the warrant was issued.
Spilotro, 800 F.2d at 963 (citations omitted). The first consid-
eration encapsulates the overarching Fourth Amendment prin-
ciple that police must have probable cause to search for and
seize “all the items of a particular type described in the war-
rant.” In re Grand Jury Subpoenas, 926 F.2d at 857; see also
SDI Future Health, 568 F.3d at 702-03; VonderAhe v. How-
land, 508 F.2d 364, 369-70 (9th Cir. 1974). The second and
third factors are relevant to determining whether the warrant
satisfies this general rule.
When considering challenges to warrants under this frame-
work, we must be mindful that a “magistrate’s determination
of probable cause should be paid great deference by review-
ing courts.” Illinois v. Gates, 462 U.S. 213, 236 (1983) (inter-
nal quotation marks omitted). The Supreme Court has
directed us to take a practical approach in determining
whether there is sufficient probable cause, and to avoid “inter-
preting affidavits in a hypertechnical, rather than a common-
sense, manner.” Id. (brackets and internal quotation marks
omitted). “Deference to the magistrate, however, is not
boundless.” Leon, 468 U.S. at 914. We are not to “defer to a
warrant based on an affidavit that does not provide the magis-
trate with a substantial basis for determining the existence of
probable cause.” Id. at 915 (citation and internal quotation
marks omitted).
B
We begin by analyzing whether the warrant’s authorization
to search for firearms and firearm-related materials satisfies
12724 MILLENDER v. COUNTY OF LOS ANGELES
the three-factor specificity framework. We first consider
whether the deputies had probable cause to search for and
seize “all the items of a particular type described in the war-
rant.” In re Grand Jury Subpoenas, 926 F.2d at 857. “The
premise here is that any intrusion in the way of search or sei-
zure is an evil, so that no intrusion at all is justified without
a careful prior determination of necessity.” Coolidge v. New
Hampshire, 403 U.S. 443, 467 (1971) (plurality opinion). For
example, probable cause to search for documents pertaining
to “certain aspects of [an] operation” cannot justify the sei-
zure of all documents in an office. United States v. Stubbs,
873 F.2d 210, 211 (9th Cir. 1989).
[3] As noted above, the warrant in this case authorizes a
search for essentially any device that could fire ammunition,
any ammunition, and any firearm-related materials. There is
no dispute that the deputies had probable cause to search for
and seize the “black sawed off shotgun with a pistol grip”
used in the crime. But the affidavit does not set forth any evi-
dence indicating that Bowen owned or used other firearms,
that such firearms were contraband or evidence of a crime, or
that such firearms were likely to be present at the Millenders’
residence. Nothing in the warrant or the affidavit provides any
basis for concluding there was probable cause to search for or
seize the generic class of firearms and firearm-related materi-
als listed in the search warrant. As such, we conclude that
“probable cause did not exist to seize all items of those partic-
ular types.” SDI Future Health, 568 F.3d at 705 (brackets and
internal quotation marks omitted).
[4] The rule that police must have probable cause for every
item searched does not always invalidate warrants that autho-
rize a search for classes of generic items. See Spilotro, 800
F.2d at 963. As the framework’s second consideration sug-
gests, a broader search warrant may sometimes be valid if the
warrant establishes standards that are sufficiently specific to
“reasonably guide the officers in avoiding seizure of protected
property” and to allow judicial review “to determine whether
MILLENDER v. COUNTY OF LOS ANGELES 12725
the instructions were followed and legitimate property and
privacy interests were protected.” United States v. Hillyard,
677 F.2d 1336, 1340 (9th Cir. 1982); see also United States
v. Gomez-Soto, 723 F.2d 649, 654 (9th Cir. 1984). Neverthe-
less, a warrant based on an affidavit describing “a few stolen
diamonds” could not validly authorize a search for a broad
category of “gemstones and other items of jewelry” because
such a warrant would “provide[ ] no basis for distinguishing
[the stolen] diamonds from others the government could
expect to find on the premises.” Spilotro, 800 F.2d at 965.
[5] More specific standards may be contained in an affida-
vit, rather than the warrant itself, only if: “(1) the warrant
expressly incorporate[s] the affidavit by reference and (2) the
affidavit either is attached physically to the warrant or at least
accompanies the warrant while agents execute the search.”
United States v. Kow, 58 F.3d 423, 429 n.3 (9th Cir. 1995).
Applying this principle, we upheld a warrant authorizing
police officers to “search all motor vehicles and heavy equip-
ment found on the premises” to determine which were stolen
in part because the warrant incorporated an affidavit that
established “procedures to differentiate stolen vehicles from
those legally owned.” Hillyard, 677 F.2d at 1339, 1341; see
also United States v. Adjani, 452 F.3d 1140, 1148-49 (9th Cir.
2006).
[6] In this case, the deputies argue that the affidavit nar-
rowed the scope of the search warrant by including specific
information about the crime at issue, the weapon used, and
Bowen’s gang membership, and that this information cured
any constitutional deficiency. The affidavit does satisfy the
first prong of the Kow test: the district court found that the
warrant expressly incorporated the affidavit by reference. But
there is no evidence in the record, nor do the deputies argue,
that the affidavit was physically attached to the warrant or
accompanied the warrant on the search. Therefore, we cannot
consider its effect. See United States v. Bridges, 344 F.3d
1010, 1018 (9th Cir. 2003); see also Groh, 540 U.S. at 557
12726 MILLENDER v. COUNTY OF LOS ANGELES
(“The Fourth Amendment by its terms requires particularity
in the warrant, not in the supporting documents.”); Spilotro,
800 F.2d at 967; Hillyard, 677 F.2d at 1340.
[7] Even if we could consider the affidavit, it still would
not cure the warrant’s deficiencies. Messerschmidt did not use
the affidavit at the Millenders’ residence to provide more spe-
cific direction to the investigators who searched the house, for
instance by alerting the investigators as to what type of fire-
arm (within the generic class of firearms described in the war-
rant) was used in the crime. Nor did the investigators
executing the warrant understand the affidavit to narrow the
scope of the search. Rather, they seized Augusta Millender’s
shotgun, which did not resemble the firearm described by
Kelly: it had a wooden stock and was neither sawed-off nor
had a pistol grip. As in Kow, where we held that an incorpo-
rated affidavit did not cure a facially invalid warrant, “there
is absolutely no evidence in this case that the officers who
executed the warrant, although instructed to read the affidavit,
actually relied on the information in the affidavit to limit the
warrant’s overbreadth.” 58 F.3d at 429. Accordingly, we can-
not uphold the warrant based on objective standards in the
affidavit.
[8] Finally, as suggested by the framework’s third consid-
eration, warrants may sometimes authorize a search for
classes of generic items if the government was not “able to
describe the items more particularly in light of the informa-
tion available to it at the time the warrant was issued.” Spi-
lotro, 800 F.2d at 963; see also Adjani, 452 F.3d at 1147-48.
For example, in United States v. Storage Spaces Designated
Nos. “8” and “49” Located at 277 East Douglas, we upheld
a warrant authorizing search and seizure of a broad class of
potentially misbranded drugs in part because the government
did not have information allowing it to describe the drugs
more specifically. 777 F.2d 1363, 1370 (9th Cir. 1985). But
where the police do have information more specifically
describing the evidence or contraband, a warrant authorizing
MILLENDER v. COUNTY OF LOS ANGELES 12727
search and seizure of a broader class of items may be invalid.
Thus, when “[u]pon the information available to it, the gov-
ernment knew exactly what it needed and wanted,” it was
unconstitutional for a warrant to authorize “a massive re-
examination of all records.” VonderAhe, 508 F.2d at 370; see
also SDI Future Health, 568 F.3d at 704-05 (a portion of a
search warrant authorizing the search for “Documents relating
to non-privileged internal memoranda and E-mail” held
invalid when the government’s interest was limited to com-
munications related to sleep studies); Ctr. Art Galleries-Haw.,
Inc. v. United States, 875 F.2d 747, 750 (9th Cir. 1989)
(where “the government had the means to identify accounts
which may have involved [allegedly fraudulent Salvador]
Dali artwork,” a warrant authorizing agents to seize accounts
of other artists was invalid), superseded by statute on other
grounds as stated in J.B. Manning Corp. v. United States, 86
F.3d 926, 927 (9th Cir. 1996).
[9] In this case, the deputies had a precise description of
the firearm used by Bowen in connection with his assault.
Kelly, the eyewitness and victim of the assault, described the
firearm as a “black sawed off shotgun with a pistol grip” and
even provided the deputies with a photo of Bowen posing
with the gun. Because the government knew “ ‘exactly what
it needed and wanted,’ ” this third consideration also cuts
against the validity of the warrant. United States v. Cardwell,
680 F.2d 75, 78 (9th Cir. 1982) (quoting VonderAhe, 508 F.2d
at 370); see Spilotro, 800 F.2d at 963.
The deputies argue that the broad scope of the warrant was
necessary in light of the specific circumstances of the crime.
They note that a sawed-off shotgun can be broken down into
separate pieces for easier concealment and that the deputies
had probable cause to believe that a search for the disassem-
bled parts of the sawed-off shotgun would be necessary. But
this reasoning does not preclude a more precise description of
the items subject to seizure. Under the specific circumstances
of the crime, the deputies’ probable cause extended only to
12728 MILLENDER v. COUNTY OF LOS ANGELES
firearm components that could be part of a disassembled
sawed-off shotgun with a pistol grip; there was no probable
cause to search for disassembled pieces of all firearms
described in the warrant. See Spilotro, 800 F.2d at 965.
The deputies also argue that it was necessary to draft the
firearm description broadly because Kelly could have been
mistaken in her description of the gun. This argument has lit-
tle force in this situation, because Kelly provided the officers
with a picture of the weapon. The warrant did not omit details
that Kelly might have mistaken or that might not have been
accurately reflected in the photo, such as the color or specific
make of the weapon. Rather, Messerschmidt failed to include
any limitation that would have helped focus the warrant on
the specific type of gun legitimately subject to the search.
Thus, the deputies’ argument, if availing, would impermiss-
ibly allow police to “enlarge a specific authorization, fur-
nished by a warrant . . . into the equivalent of a general
warrant to rummage and seize at will.” Minnesota v. Dicker-
son, 508 U.S. 366, 378 (1993) (internal quotation marks omit-
ted).
[10] In short, the deputies had probable cause to search for
a single, identified weapon, whether assembled or disassem-
bled. They had no probable cause to search for the broad class
of firearms and firearm-related materials described in the war-
rant. Although we have upheld warrants describing broad
classes of items in certain cases, see Storage Spaces, 777 F.2d
at 1370; Hillyard, 677 F.2d at 1340, the rationales adopted in
those cases are inapplicable here given the information the
deputies possessed.
The deputies raise several additional arguments to justify
the breadth of the warrant. These arguments, however, are
unrelated to the constitutional requirement that a search war-
rant not issue except upon probable cause for every item
described in the warrant. See In re Grand Jury Subpoenas,
926 F.2d at 857.
MILLENDER v. COUNTY OF LOS ANGELES 12729
First, the deputies argue that it was reasonable for the war-
rant to authorize a broad search for firearms and firearm-
related materials because Bowen is a violent and dangerous
person. The deputies draw attention to facts in the affidavit
showing that Bowen was suspected of assault with a deadly
weapon, was a gang member, and that night service was
requested to protect the public. The deputies also rely on
research not set forth in the affidavit which indicated that
Bowen had a history of violence and several prior felony con-
victions. The dissent makes similar arguments, see Dissent at
12742-44, n.1 & n.6, and also contends that probable cause
existed because firearms are inherently dangerous, Dissent at
12743-44.4
There is no doubt that deputies have a valid interest in pro-
tecting themselves and the public from potentially violent and
dangerous suspects. Indeed, the Supreme Court has recog-
nized that courts must give “some latitude” to “officers in the
dangerous and difficult process of making arrests and execut-
ing search warrants,” Maryland v. Garrison, 480 U.S. 79, 87
(1987). In this vein, the Court’s “search incident to arrest”
doctrine allows a police officer to take into account the inher-
ent hazards raised by an arrestee’s potential access to fire-
arms, see Chimel v. California, 395 U.S. 752, 762-63 (1969).
But there is no “dangerousness” exception to the Fourth
Amendment’s probable cause requirement, regardless of
whether a search involves violent suspects or deadly weapons.
A police officer’s valid safety concerns do not create a “fair
probability” that a broad class of weapons may be found in a
suspect’s residence or that such items are contraband or evi-
dence of a crime. See Grubbs, 547 U.S. at 95. The deputies
cite no case, and we have found none, holding that a warrant’s
overbreadth could be cured simply because of potential dan-
ger to police officers at some point in the future. Indeed, such
a rule would permit officers to transform every warrant into
4
We refer to Judge Callahan’s dissent as “the dissent” or “Dissent.” We
refer to Judge Silverman’s dissent by name.
12730 MILLENDER v. COUNTY OF LOS ANGELES
a “general, exploratory search[ ]” allowing “indiscriminate
rummaging through a person’s belongings.” Spilotro, 800
F.2d at 963; see also Groh, 540 U.S. at 561; Coolidge, 403
U.S. at 467 (plurality opinion). Nor is there a per se rule that
police have probable cause to search the residences of ex-
felons for firearms and firearm-related items. See United
States v. Santos, 403 F.3d 1120, 1132 (10th Cir. 2005) (hold-
ing that a prior criminal history, without more, is insufficient
to establish reasonable suspicion); United States v. Herron,
215 F.3d 812, 814 (8th Cir. 2000) (holding that evidence of
prior marijuana convictions is insufficient to create probable
cause to search the defendant’s residence).5
Here the record is devoid of evidence that Bowen pos-
sessed guns other than the sawed-off shotgun identified by
Kelly or that the broad range of firearms covered by the war-
rant would be present in the Millenders’ residence. Therefore,
regardless of Bowen’s history or the inherent dangerousness
of firearms, the police lacked probable cause to apply for a
search warrant for a broad range of firearms.6
5
We do not reach the question whether the deputies could justify the sei-
zure of Augusta Millender’s gun under the plain view doctrine, on the the-
ory that a firearm, if owned by Bowen, could be evidence of a “felon in
possession” crime. See 18 U.S.C. § 922(g)(1); Cal. Penal Code
§ 12021(a)(1). This argument was not raised below, and is not a pure
question of law. Cf. Scott v. Ross, 140 F.3d 1275, 1283 (9th Cir. 1998)
(holding that we have discretion to review issues not raised below when
“the issue presented is purely one of law” and does not require additional
factual development (internal quotation marks omitted)). Rather, in order
to raise such an argument, the deputies would need to present evidence on
critical factual issues such as whether the deputies saw Augusta Mil-
lender’s gun “from a place and in circumstances where the viewing officer
was entitled to be present,” Spilotro, 800 F.2d at 968, and whether it
would be immediately apparent to them that a firearm was contraband or
evidence of a crime when Bowen did not have sole dominion or control
over the 120th St. address, see Horton v. California, 496 U.S. 128, 136
(1990); United States v. Ruiz, 462 F.3d 1082, 1089 (9th Cir. 2006)
(“[A]ccess to the premises does not equate to possession.”).
6
The dissent raises the further theory that the deputies had probable
cause to obtain the search warrant for the Millenders’ residence because
MILLENDER v. COUNTY OF LOS ANGELES 12731
In any event, because Messerschmidt did not inform the
magistrate of Bowen’s prior felonies, his criminal history is
not relevant to our analysis here. It is well established that, in
reviewing a search warrant, we are “limited to the information
and circumstances contained within the four corners of the
underlying affidavit.” Crowe v. County of San Diego, 593
F.3d 841, 869 (9th Cir. 2010) (internal quotation marks omit-
ted); see also United States v. Gourde, 440 F.3d 1065, 1067
(9th Cir. 2006) (en banc). Probable cause is a determination
made by the issuing magistrate based on the facts presented
to him, not a determination made by an officer based on infor-
mation known only to himself. See Gates, 462 U.S. at 238-39.
Therefore, the dissent errs in suggesting that Messerschmidt’s
personal knowledge that Bowen was a felon is sufficient to
create probable cause. Dissent at 12743 & n.1.7
Second, the deputies argue they were justified in seeking all
firearms and firearm-related materials because such materials
they had probable cause to obtain an arrest warrant for Bowen. See Dis-
sent at 12743, 12757-58. But these are distinct tests: an arrest warrant
must be based on probable cause that “an offense has been or is being
committed,” Brinegar v. United States, 338 U.S. 160, 176 (1949), while
a search warrant can issue only on “a fair probability that contraband or
evidence of a crime will be found in a particular place,” Grubbs, 547 U.S.
at 95 (internal quotation marks omitted). While a suspect’s violent propen-
sities may create probable cause for an arrest, there is no per se rule that
such propensities authorize a general search for a broad range of weapons.
7
Nor, contrary to the dissent, could the magistrate properly infer that
Bowen had prior felony convictions from the affidavit’s reference to infor-
mation about Bowen in “the cal-gang data base.” Dissent at 12743 n.1.
According to CALGANG’s Advisory Committee, a name may be added
to the database based on nothing more than information that a “[s]ubject
has been seen frequenting gang areas” and “has been seen affiliating with
documented gang members.” Cal. Gang Node Advisory Comm., Policy
and Procedures for the CALGANG® System 7 (Sept. 27, 2007), available
at http://ag.ca.gov/calgang/pdfs/policy_procedure.pdf. Indeed, the Advi-
sory Committee warns that the CALGANG database “is not designed to
provide users with information upon which official actions may be taken,”
and “cannot be used to provide probable cause for an arrest or be docu-
mented in an affidavit for a search warrant.” Id. at 6.
12732 MILLENDER v. COUNTY OF LOS ANGELES
could aid in the prosecution of Bowen. Again, this argument
is unrelated to the constitutional requirement that there be
probable cause for each item described in the warrant.
Although the deputies likely had probable cause to search for
a limited range of firearm-related material that would have
provided circumstantial evidence of ownership of the sawed-
off shotgun at issue, such as receipts or compatible ammuni-
tion, the warrant extended beyond such evidence to “[a]ny
firearm capable of firing or chambered to fire any caliber
ammunition.” Put simply, the Fourth Amendment does not
authorize the issuance of warrants to conduct fishing expedi-
tions to find evidence that could assist officers in prosecuting
suspects. See Garrison, 480 U.S. at 84.
The deputies further argue that any caliber of shotgun or
receipts would show the possession and purchase of guns. But
we fail to see how this gives the deputies probable cause,
because the possession and purchase of guns by itself does not
constitute contraband or evidence of a crime. See Gates, 462
U.S. at 238. As discussed above, the warrant did not include
the information about Bowen’s criminal record that could
make his possession and purchase of guns a criminal offense,
and thus such information cannot be considered in our analy-
sis. See Crowe, 593 F.3d at 869. Moreover, while the district
court concluded that the deputies had probable cause to search
for “[a]rticles of personal property tending to establish the
identity of the person or persons in control of the premise or
premises,” a ruling the Millenders do not challenge on appeal,
the deputies do not argue that such probable cause justified
their search for the broad range of firearms listed in the war-
rant. Nor could they. While we have upheld warrants autho-
rizing searches for “[i]ndicia tending to establish the identity
of persons in control of the premises,” Ewing v. City of Stock-
ton, 588 F.3d 1218, 1229 (9th Cir. 2009), the probable cause
to search for such “indicia of control” usually refers to such
items as “utility company receipts, rent receipts, cancelled
mail envelopes, and keys,” United States v. Honore, 450 F.2d
31, 33 (9th Cir. 1971), not to the full range of firearm and
MILLENDER v. COUNTY OF LOS ANGELES 12733
firearm-related materials sought here. See United States v.
Whitten, 706 F.2d 1000, 1009 (9th Cir. 1983) (upholding a
warrant authorizing the seizure of a broad range of documents
only to the extent the documents indicated “the ownership or
occupancy” of a residence, and noting that without such a
limitation the warrant’s broad authorization “might have been
unreasonable”), abrogated on other grounds by United States
v. Perez, 116 F.3d 840, 844-46 (9th Cir. 1997) (en banc); cf.
United States v. Rettig, 589 F.2d 418, 420-21, 423 (9th Cir.
1978) (invalidating a warrant allowing a search for indicia of
the identity of the residents of a house when government
agents used it as a pretext to search for evidence of a cocaine
smuggling conspiracy).
[11] Although we are deferential to a magistrate’s determi-
nation of probable cause and consider the language of a war-
rant and affidavit in a common sense and practical manner,
Gates, 462 U.S. at 236, here we are unable to identify any
basis, let alone a “substantial basis,” see Leon, 468 U.S. at
915, for probable cause to search and seize the broad category
of firearm and firearm-related materials set forth in the war-
rant. Accordingly, we find ourselves in that rare situation
where we must conclude that the magistrate lacked a substan-
tial basis for issuing the warrant for this broad range of items.
C
[12] We next consider the search warrant’s authorization
to search for all gang-related items. The affidavit contains two
references to Bowen’s alleged gang membership. It states that
Bowen is “a known Mona Park Crip gang member,” and it
asserts, in the section justifying a request for night service,
that Bowen “has gang ties to the Mona Park Crip gang based
on information provided by the victim and the cal-gang data
base.” Neither of these assertions provides probable cause for
a magistrate to conclude that “contraband or evidence of a
crime,” Gates, 462 U.S. at 238, would be found at Mrs. Mil-
lender’s residence. Merely being a gang member or having
12734 MILLENDER v. COUNTY OF LOS ANGELES
gang ties is not a crime in California. People v. Gardeley, 927
P.2d 713, 725 (Cal. 1996). The relevant California law “im-
poses increased criminal penalties” for gang membership only
when the underlying criminal act is “ ‘for the benefit of, at the
direction of, or in association with’ a group that meets the
specific statutory conditions of a ‘criminal street gang,’ ” and
when the act is done with the “ ‘specific intent to promote,
further, or assist in any criminal conduct by gang members.’ ”
Id. (quoting Cal. Penal Code § 186.22(b)(1)). Here, Messer-
schmidt himself stated he had no reason to believe that
Bowen’s assault on Kelly was related to gangs, and there is
no evidence in the affidavit (or the record) to suggest other-
wise. Because the deputies failed to establish any link
between gang-related materials and a crime, the warrant
authorizing the search and seizure of all gang-related evidence
is likewise invalid.
IV
Our conclusion that there was no probable cause for the
broad categories of firearm- and gang-related items listed in
the search warrant, and that the search warrant violated the
Millenders’ constitutional rights, is only the first step in our
analysis of whether the deputies are entitled to qualified
immunity. We must next consider whether the Millenders’
constitutional rights were “clearly established” at the time of
the deputies’ alleged misconduct. Pearson, 129 S. Ct. at 816.
A
[13] The Supreme Court has refined the application of the
qualified immunity test in the Fourth Amendment context.
See Malley, 475 U.S. at 344-46; Groh, 540 U.S. at 563-65. In
private actions against officers who have executed constitu-
tionally inadequate warrants, the Supreme Court has held that
an officer loses qualified immunity only when “a reasonably
well-trained officer in [the defendant officer’s] position would
have known that his affidavit failed to establish probable
MILLENDER v. COUNTY OF LOS ANGELES 12735
cause and that he should not have applied for the warrant.”
Malley, 475 U.S. at 345. This standard “provides ample pro-
tection to all but the plainly incompetent or those who know-
ingly violate the law.” Id. at 341.
[14] Despite this protection, the Supreme Court has pre-
served the right of individuals to seek relief in certain nar-
rowly defined circumstances. Malley and Groh, the two
leading Supreme Court cases in this context, deal with facts
and arguments similar to the case before us. In Malley, plain-
tiffs sued a state trooper under § 1983 for applying for an
arrest warrant that failed to establish probable cause. Id. at 337.8
Rather than granting the officer absolute immunity, Malley
held that officers should receive only qualified immunity
because “it would be incongruous to test police behavior by
the ‘objective reasonableness’ standard in a suppression hear-
ing, United States v. Leon, 468 U.S. 897 (1984), while
exempting police conduct in applying for an arrest or search
warrant from any scrutiny whatsoever in a § 1983 damages
action.” Malley, 475 U.S. at 344. Accordingly, Malley held
that officers would be entitled to qualified immunity in § 1983
actions only under the same facts that would allow the gov-
ernment to claim a good faith exception to the exclusionary
rule in a suppression hearing. Said otherwise, officers lose
immunity only “where the warrant application is so lacking in
indicia of probable cause as to render official belief in its
existence unreasonable.” Id. at 344-45 (citing Leon, 468 U.S.
at 923).
Malley rejected the argument that the trooper was “shielded
from damages liability because the act of applying for a war-
rant is per se objectively reasonable” and that he was “entitled
to rely on the judgment of a judicial officer in finding that
probable cause exists and hence issuing the warrant.” Id. at
8
Though Malley dealt with an arrest warrant, the opinion applies to both
arrest and search warrants. See 475 U.S. at 344; Marks v. Clarke, 102 F.3d
1012, 1026 & n.31 (9th Cir. 1997) (applying Malley to search warrants).
12736 MILLENDER v. COUNTY OF LOS ANGELES
345. According to Malley, that view of objective reasonable-
ness was “at odds” with cases such as Leon and Harlow v.
Fitzgerald, 457 U.S. 800 (1982). Malley, 475 U.S. at 345.
Rather, the pertinent question must be “whether a reasonably
well-trained officer in [the defendant officer’s] position would
have known that his affidavit failed to establish probable
cause and that he should not have applied for the warrant.” Id.
If a reasonable officer would have known that the affidavit
was fatally deficient, then the defendant’s “application for a
warrant was not objectively reasonable, because it created the
unnecessary danger of an unlawful arrest [or search].” Id.
Malley declined to hold that an officer could rely on the deter-
mination of the magistrate, stating that “it is possible that a
magistrate, working under docket pressures, will fail to per-
form as a magistrate should” and, accordingly, it was “reason-
able to require the officer applying for the warrant to
minimize this danger by exercising reasonable professional
judgment.” Id. at 345-46.
Groh offers an example of one of the rare cases described
in Malley when a warrant is “so lacking in indicia of probable
cause as to render official belief in its existence unreason-
able,” 475 U.S. at 345, notwithstanding the approval of a
magistrate. In Groh, the plaintiff claimed his Fourth Amend-
ment rights had been violated because the warrant authorizing
the search and seizure of his property was invalid. 540 U.S.
at 554-55. Although the defendant officer had prepared a
detailed application for the warrant, the warrant itself
included only a description of the plaintiff’s residence, and it
did not incorporate the application by reference. Id. Groh held
that the warrant “was plainly invalid” because it totally failed
to describe the things to be seized, let alone with particularity.
Id. at 557. Accordingly, the Court concluded that the search
conducted pursuant to the warrant was unconstitutional. Id. at
563. Rejecting the officer’s assertion of qualified immunity,
Groh reasoned that “just a simple glance[ ]would have
revealed a glaring deficiency that any reasonable police offi-
cer would have known was constitutionally fatal.” Id. at 564.
MILLENDER v. COUNTY OF LOS ANGELES 12737
Further, the Court held that the officer “may not argue that he
reasonably relied on the Magistrate’s assurance that the war-
rant contained an adequate description of the things to be
seized and was therefore valid” because the officer himself
prepared the invalid warrant. Id.
Accordingly, as Malley and Groh make clear, a plaintiff
can proceed with a § 1983 action stemming from an officer’s
application for an invalid warrant in those limited situations
when “a reasonably well-trained officer” in the defendant’s
situation would have known that the warrant did not establish
probable cause. Malley, 475 U.S. at 345; see Groh, 540 U.S.
at 564. When the warrant is so lacking in indicia of probable
cause, officers cannot claim that they acted reasonably by
seeking a warrant merely because a neutral magistrate
approved the application; rather, officers must exercise their
own “reasonable professional judgment.” Malley, 475 U.S. at
346.
[15] In interpreting these precedents, we have emphasized
the “distinction between warrants with disputable probable
cause and warrants so lacking in probable cause that no rea-
sonable officer would view them as valid.” KRL, 512 F.3d at
1190; see also United States v. Shi, 525 F.3d 709, 731 (9th
Cir.) (“Good faith reliance exists if the agents’ affidavit estab-
lishes ‘at least a colorable argument’ for probable cause, and
the agents relied on the search warrant in an objectively rea-
sonable manner.” (quoting United States v. Luong, 470 F.3d
898, 903 (9th Cir. 2006))), cert. denied, 129 S. Ct. 324
(2008). Where the “lack of probable cause was so obvious
that any reasonable officer reading the warrant would con-
clude that the warrant was facially invalid,” we have held that
“[a]pproval by an attorney and a magistrate did not justify
reasonable reliance.” KRL, 512 F.3d at 1192 (citing Kow, 58
F.3d at 428-29).
B
While the deputies claim that “a reasonably well-trained
officer” in their position would not have known that the
12738 MILLENDER v. COUNTY OF LOS ANGELES
search warrant failed to establish probable cause, Malley, 475
U.S. at 345, they add little to their prior arguments. The depu-
ties argue that they could have reasonably but mistakenly con-
cluded that they had probable cause to seize the weapon found
at the Millender residence because “they would not know if
the suspect would be coming back and the officers would not
want the suspect to gain access to more weapons and hurt
other people, including the victim in this case.” To the extent
this argument differs from their “dangerousness” argument,
see supra at pp. 12729-30, it also fails. Although officers may
make a warrantless entry into a residence under certain exi-
gent circumstances, such as when “they have an objectively
reasonable basis for believing that an occupant is seriously
injured or imminently threatened with such injury,” see Brig-
ham City v. Stuart, 547 U.S. 398, 400 (2006), the exigent cir-
cumstances doctrine is an exception to the warrant
requirement, id. at 403, not an authorization for the deputies
to apply for a warrant that is not supported by probable cause.
The deputies also assert they could have been reasonably mis-
taken as to whether the underlying crime was gang-related.
This argument borders on the frivolous, given Messersch-
midt’s statement that he had no reason to hold such a belief,
and the absence of any evidence that the crime at issue was
gang-related.
[16] The deputies’ arguments cannot change the reality
that the warrant in this case suffered a “glaring deficiency.”
Groh, 540 U.S. at 564. Neither it nor the affidavit established
probable cause that the broad categories of firearms, firearm-
related material, and gang-related material described in the
warrant were contraband or evidence of a crime. Moreover, a
reasonable officer in the deputies’ position would have been
well aware of this deficiency. The affidavit indicated exactly
what item was evidence of a crime, the black sawed-off shot-
gun with a pistol grip, and reasonable officers would know
they could not undertake a general, exploratory search for
unrelated items unless they had additional probable cause for
those items. See SDI Future Health, 568 F.3d at 702-03; In re
MILLENDER v. COUNTY OF LOS ANGELES 12739
Grand Jury Subpoenas, 926 F.2d at 857; VonderAhe, 508
F.2d at 369-70. Under these circumstances, we cannot say that
an officer could reasonably but mistakenly believe that the
search warrant established “a colorable argument for probable
cause.” See Shi, 525 F.3d at 731. Rather, the warrant here was
“plainly invalid.” Groh, 540 U.S. at 557.
Citing the dissenting opinions in Malley and Groh, see Dis-
sent at 12748 n.8, 12748-50 & n.10, 12760, the dissent would
hold that the officers acted in an objectively reasonable man-
ner as a matter of law because they “reasonably relied” on the
review and approval of “their superiors, the district attorney,
and the magistrate to correct the alleged over breadth in the
search warrant,” Dissent at 12757. Judge Silverman likewise
suggests that the deputies are entitled to qualified immunity
because they obtained a warrant, consulted with their superi-
ors, and acted in good faith. Silverman Dissent at 12767. We
cannot accept these propositions, however, because they con-
flict with the majority opinions in Malley and Groh, which
imposed on police officers the independent responsibility to
ensure there is at least a colorable argument for probable
cause, and rejected the factors suggested by the dissenting jus-
tices for giving police officers even further protection from
liability. See Groh, 540 U.S. at 563-64; Malley, 475 U.S. at
345-46. Nor can we agree that the officers were objectively
reasonable in obtaining a search warrant for a broad range of
firearms and gang indicia because the suspect was an ex-
felon, the firearms were inherently dangerous, and the fire-
arms were specifically described. Dissent at 12759-60. As
explained above, under basic Fourth Amendment principles,
a search warrant is not supported by probable cause unless the
affidavit establishes that the items in the search warrant are
contraband or evidence of a crime; neither information known
only to the officer, the criminal status of the suspect, nor the
dangerousness of the items listed in the warrant establishes
probable cause. The dissent’s desire to transform these long-
standing rules into a more “workable guideline,” Dissent at
12740 MILLENDER v. COUNTY OF LOS ANGELES
12752, does not excuse the police officers from compliance
with the existing rules mandated by the Supreme Court.9
[17] The deputies here had a responsibility to exercise their
reasonable professional judgment. See Malley, 475 U.S. at
346. As Malley recognized, “ours is not an ideal system,” and
as such in circumstances such as these a neutral magistrate’s
approval (and, a fortiori, a non-neutral prosecutor’s, see Coo-
lidge, 403 U.S. at 449-50) cannot absolve an officer of liabil-
ity. Malley, 475 U.S. at 345.10 Accordingly, the deputies are
not entitled to qualified immunity with respect to the Mil-
lenders’ claim that their role in obtaining and executing the
warrants violated their constitutional rights.
V
“While the purposes justifying a police search strictly limit
the permissible extent of the search, the Court has also recog-
9
The dissent also suggests that the officers’ reliance on the search war-
rant was objectively reasonable because only two sections of the warrant
lacked probable cause, and those sections “do not appear to have been
very important either when the warrant was initially sought or later.” Dis-
sent at 12763; see Dissent at 12758-59. In fact, those two sections of the
warrant set forth the entire description of the items to be seized, and the
district court invalidated all but a single sentence. Supra at p. 12720.
Although we have held that the invalid portions of a search warrant may
be severed from the valid portions, “severance is not available when the
valid portion of the warrant is ‘a relatively insignificant part’ of an other-
wise invalid search.” In re Grand Jury Subpoenas, 926 F.2d at 858 (quot-
ing Spilotro, 800 F.2d at 967). Here, even though the district court upheld
a single sentence and even though the description of the items to be
searched for and seized comprised only two paragraphs, the officers’ reli-
ance on the warrant as a whole was not reasonable.
10
Nor is this a case where the warrant was defective because the magis-
trate made an error, as in Massachusetts v. Sheppard, 468 U.S. 981,
989-90 (1984), in which the Court declined to suppress evidence obtained
with an improper warrant form where the authorizing magistrate assured
the detective that he would make the changes necessary to ensure its valid-
ity. Here, Messerschmidt prepared the overbroad warrant himself, and the
magistrate gave no assurances that he would fix errors in the warrant.
MILLENDER v. COUNTY OF LOS ANGELES 12741
nized the need to allow some latitude for honest mistakes that
are made by officers in the dangerous and difficult process of
making arrests and executing search warrants.” Garrison, 480
U.S. at 87. In the majority of cases, officers who reach a rea-
sonable but mistaken conclusion that a warrant was justified
by probable cause will be shielded from suit by qualified
immunity. See Malley, 475 U.S. at 341. “But the mistakes
must be those of reasonable men, acting on facts leading sen-
sibly to their conclusions of probability.” Brinegar, 338 U.S.
at 176. Where, as here, the warrant was so facially invalid that
no reasonable officer could have relied on it, the deputies are
not entitled to qualified immunity, and the Millenders can
proceed with their § 1983 claim.
AFFIRMED.
CALLAHAN, Circuit Judge, with whom TALLMAN, Circuit
Judge joins, dissenting:
Although the majority’s opinion nicely lays out the law
applicable to a determination of qualified immunity, my
review of the law and the facts in this case require that I dis-
sent. I address four matters. First, I take issue with the majori-
ty’s determination that the warrant constitutionally could not
provide for the search and seizure of firearms other than the
sawed-off shotgun. Second, in reviewing the applicable case
law, the majority fails to appreciate the factors courts have
used to transform an abstract standard — did the officer rea-
sonably rely on review by counsel and a magistrate — into a
workable guide for a line officer. Third, I would find that the
totality of the circumstances in this case compels a finding
that the line officer reasonably relied on his supervisors, the
district attorney, and the magistrate to determine the constitu-
tional limits of the search warrant. Finally, I am concerned
that the majority’s parsing of the search warrant is likely to
12742 MILLENDER v. COUNTY OF LOS ANGELES
encourage uncertainty and needless litigation. I would grant
the officer qualified immunity.
I
Our differing views on the warrant’s provision for the
search and seizure of firearms are revealed by our respective
applications of United States v. Spilotro, 800 F.2d 959 (9th
Cir. 1986), which sets forth the framework for determining a
warrant’s sufficiency. There we held that “[i]n determining
whether a description is sufficiently precise,” we should con-
centrate on one or more of the following:
(1) whether probable cause exists to seize all items
of a particular type described in the warrant; (2)
whether the warrant sets out objective standards by
which executing officers can differentiate items sub-
ject to seizure from those which are not; and (3)
whether the government was able to describe the
items more particularly in light of the information
available to it at the time the warrant was issued.
Id. at 963 (citations omitted).
The majority admits that there was probable cause to search
for and seize the “black sawed-off shotgun with a pistol grip,”
but objects that “the affidavit does not set forth any evidence
indicating that Bowen owned or used any other firearms, that
such firearms were contraband or evidence of a crime, or that
such firearms were likely to be present at the Millenders’ resi-
dence.” Op. at 12724. This approach overlooks the fact that
the search warrant was accompanied by an arrest warrant for
Bowen, the real object of the search, who the officer believed
resided at the residence. Bowen was reasonably considered to
be dangerous. He had fired a shotgun in public at Kelly, was
a member of a street gang, and had a criminal record includ-
ing prior felonies.1 Because of Bowen’s dangerousness, the
1
Although the affidavit in support of the search warrant did not explic-
itly state that Bowen had a criminal record, this can be inferred from its
MILLENDER v. COUNTY OF LOS ANGELES 12743
deputies requested nighttime service of the warrant. The mag-
istrate approved nighttime service, and the district court held
that the facts specified in the affidavit were sufficient to jus-
tify nighttime service. The district court also concluded that
the arrest warrant was facially valid and that its authorization
to search for evidence tending to establish who controlled the
premises was constitutional. Op. at 12720.
Given this context, the officers had probable cause to
search for and seize any firearms in the home in which
Bowen, a gang member and felon, was thought to reside. In
Illinois v. Gates, 462 U.S. 213, 238 (1983), the Supreme
Court held that probable cause exists when “there is a fair
probability that contraband or evidence of a crime will be
found in a particular place.”2 See also United States v.
Grubbs, 547 U.S. 90, 95 (2006). Firearms by their very nature
are dangerous and numerous laws render their possession by
convicted felons criminal. See, e.g., 18 U.S.C. § 922(g). Thus,
statement that his membership in the Mona Park Crip gang was based, in
part, on information in “the cal-gang data base.” This database is a
California-funded, law enforcement-maintained, database of criminal
street gangs and their members including criminal histories and activities.
See http://ag.ca.gov/calgang. Further, the majority notes first that the offi-
cer knew that Bowen had several previous felony convictions and second
that Bowen was a “third strike candidate” under California law. Op. at
12719.
2
The Supreme Court explained:
we reaffirm the totality-of-the-circumstances analysis that tradi-
tionally has informed probable cause determinations. . . . The task
of the issuing magistrate is simply to make a practical, common-
sense decision whether, given all the circumstances set forth in
the affidavit before him, including the “veracity” and “basis of
knowledge” of persons supplying hearsay information, there is a
fair probability that contraband or evidence of a crime will be
found in a particular place. And the duty of a reviewing court is
simply to ensure that the magistrate had a “substantial basis for
. . . conclud[ing]” that probable cause existed.
547 U.S. at 95.
12744 MILLENDER v. COUNTY OF LOS ANGELES
in light of the facts known to the officer, i.e., that Bowen had
recently fired a shotgun at his girl friend, was a gang member,
was a felon, and presumably was armed, there was at least a
“fair probability” not only that there might be firearms in the
house in which Bowen was believed to be residing, but that
such firearms would be “contraband or evidence of a crime.”3
Moreover, the safety of all involved, both the officers and the
inhabitants of the home, requires that officers seeking the
nighttime arrest of a dangerous felon be allowed to seize any
firearm that they come across in their search for that individ-
ual or for evidence that is otherwise properly covered by the
search warrant.4 Indeed, securing any weapons found during
the search is justified to protect the officers executing the war-
rant from harm while doing so.
Once it is understood that there was a fair probability that
any firearms found in the house in which Bowen was thought
to reside would be contraband or evidence of a crime,5 the
warrant meets the second and third provisions of the Spilotro
framework. The warrant sets out firearms and firearms-related
3
This is not a per se rule as suggested by the majority. See op at 12729.
Rather, the specific factors set forth above meet the requirement of proba-
ble cause set forth in Gates, 462 U.S. at 238.
4
The majority notes that a sawed-off shotgun can be broken down into
separate pieces for easy concealment, but insists that the “deputies’ proba-
ble cause extended only to the disassembled pieces of the sawed-off shot-
gun with a pistol grip.” Op. at 12727-28. It also declines to “reach the
question whether the deputies could justify the seizure of Mrs. Millender’s
gun under the plain view doctrine,” because the issue was not raised below
and is not a pure question of law. Op. at 12730 n. 4. However, once the
permissible scope of the search is defined as a search for disassembled
parts of the sawed-off shotgun, then an officer is entitled to search any-
where that any firearm might be hidden. In other words, allowing for the
search for other weapons does not expand the areas that the police may
search beyond those that might also contain part of a disassembled shot-
gun.
5
Indeed, if the shotgun the officers seized had been registered to Bowen,
or if it were unregistered and under Bowen’s control, it most likely would
have been contraband or evidence of a crime.
MILLENDER v. COUNTY OF LOS ANGELES 12745
items in objective language that allowed the officers to differ-
entiate what items they might seize.6 Furthermore, as any fire-
arm was likely to be contraband or evidence of a crime, a
more particular description was neither required nor desirable.
Accordingly, I dissent from the majority’s determination that
the warrant’s provision for the search and seizure of firearms
was unconstitutional.7
6
The majority objects that the “affidavit does not set forth any evidence
indicating that Bowen owned or used any other firearms, that such fire-
arms were contraband or evidence of a crime, or that such firearms were
likely to be present at the Millenders’ residence.” Op. at 12724. The
majority further comments that “nothing in the warrant or the affidavit
provides any basis for concluding that there was probable cause to search
for or seize the generic class of firearms.” Op. at 12724. This perspective
fails to appreciate that Bowen was a felon, demonstrably dangerous, and
a gang member who was wanted for shooting at his ex-girl friend in pub-
lic. These facts alone are sufficient to justify the search for firearms during
a nighttime search (or at least a reasonable officer could think so). The
cases cited by the majority, Grubbs, 547 U.S. at 95, and In re Grand Jury
Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 857 (9th Cir. 1991), are
not to the contrary. In Grubbs, the Supreme Court addressed the anticipa-
tory nature of warrants and commented that “where the police seek per-
mission to search a house for an item they believe is already located there,
the magistrate’s determination that there is probable cause for the search
amounts to a prediction that the item will still be there when the warrant
is executed.” 547 U.S. at 95. The cited section of In re Grand Jury Sub-
poenas, 926 F.2d at 857, concerned the particularity and breadth of the
warrant. Neither case dealt with items such as firearms which are inher-
ently dangerous and may not be possessed by certain felons. Here, the
officers had a reasonable suspicion that Bowen would have firearms and
that the firearms would be contraband, if not evidence of crimes.
7
The relationship between gang-related indicia and the offense for
which Bowen was sought is admittedly more attenuated. Accordingly, I do
not disagree with the majority’s determination that this provision of the
warrant was overbroad. However, as explained later in this dissent, when
viewed in context, the line officers’ inclusion of the provision in the war-
rant was reasonable.
12746 MILLENDER v. COUNTY OF LOS ANGELES
II
A. Supreme Court Authority
The majority and I agree that the standard for determining
qualified immunity has been set forth by the Supreme Court
in Malley v. Griggs, 475 U.S. 333, 345-46 (1986) and Groh
v. Ramirez, 540 U.S. 551 (2004). Moreover, there is little dif-
ference in our reading of these opinions in the abstract.
Rather, we differ on the application of the qualified immunity
test to a front line police officer’s request for an arrest warrant
and accompanying search warrant. The majority’s position is
difficult to reconcile with the Fourth Amendment’s preference
for searches authorized by neutral and detached magistrates.
In Malley, the Supreme Court considered a claim that a
police officer caused the plaintiffs to be unconstitutionally
arrested by presenting a judge with an affidavit which failed
to establish probable cause. 475 U.S. at 337. The Court first
rejected an argument that the police officer was entitled to
absolute immunity. Id. at 340-41. After explaining the basis
for adopting an “objective reasonableness” standard, the
Court commented:
We also reject petitioner’s argument that if an officer
is entitled to only qualified immunity in cases like
this, he is nevertheless shielded from damages liabil-
ity because the act of applying for a warrant is per
se objectively reasonable, provided that the officer
believes that the facts alleged in his affidavit are
true. Petitioner insists that he is entitled to rely on
the judgment of a judicial officer in finding that
probable cause exists and hence issuing the warrant.
This view of objective reasonableness is at odds with
our development of that concept in Harlow and
Leon. In Leon, we stated that “our good-faith inquiry
is confined to the objectively ascertainable question
whether a reasonably well-trained officer would
MILLENDER v. COUNTY OF LOS ANGELES 12747
have known that the search was illegal despite the
magistrate’s authorization.” 468 U.S. at 922 n.23,
. . . The analogous question in this case is whether
a reasonably well-trained officer in petitioner’s posi-
tion would have known that his affidavit failed to
establish probable cause and that he should not have
applied for the warrant. If such was the case, the
officer’s application for a warrant was not objec-
tively reasonable, because it created the unnecessary
danger of an unlawful arrest. It is true that in an ideal
system an unreasonable request for a warrant would
be harmless, because no judge would approve it. But
ours is not an ideal system, and it is possible that a
magistrate, working under docket pressures, will fail
to perform as a magistrate should. We find it reason-
able to require the officer applying for the warrant to
minimize this danger by exercising reasonable pro-
fessional judgment.
Id. at 345-46 (footnotes omitted). The Court offered addi-
tional guidance in the following footnote:
Notwithstanding petitioner’s protestations, the rule
we adopt in no way “requires the police officer to
assume a role even more skilled . . . than the magis-
trate.” . . . It is a sound presumption that “the magis-
trate is more qualified than the police officer to make
a probable cause determination,” ibid., and it goes
without saying that where a magistrate acts mis-
takenly in issuing a warrant but within the range of
professional competence of a magistrate, the officer
who requested the warrant cannot be held liable. But
it is different if no officer of reasonable competence
would have requested the warrant, i.e., his request is
outside the range of the professional competence
expected of an officer. If the magistrate issues the
warrant in such a case, his action is not just a reason-
able mistake, but an unacceptable error indicating
12748 MILLENDER v. COUNTY OF LOS ANGELES
gross incompetence or neglect of duty. The officer
then cannot excuse his own default by pointing to
the greater incompetence of the magistrate.
Id. at 346 n.9.8
The second Supreme Court case relied on by the majority,
Groh, provides guidance on the application of the Malley
standard. In Groh, the warrant completely failed to identify
the items to be searched.9 540 U.S. at 554. The Supreme
Court held that the warrant was “plainly invalid,” id. at 557,
and that “even a cursory reading of the warrant in this case —
perhaps just a simple glance — would have revealed a glaring
deficiency that any reasonable police officer would have
known was constitutionally fatal.” Id. at 564. Accordingly, the
Court declined to allow petitioner to invoke the magistrate’s
approval of the warrant as shielding him from liability for pre-
paring an invalid warrant that was contrary to his depart-
ment’s own guidelines. See 540 U.S. at 564.
8
Justice Powell was right when joined by then-Justice Rehnquist, he
issued a concurring and dissenting opinion criticizing the majority for giv-
ing “little evidentiary weight to the finding of probable cause by a magis-
trate or judicial officer.” Id. at 350. Justice Powell urged:
The police, where they have reason to believe probable cause
exists, should be encouraged to submit affidavits to judicial offi-
cers. I therefore believe that in a suit such as this, the Court
should expressly hold that the decision by the magistrate is enti-
tled to substantial evidentiary weight. A more restrictive standard
will discourage police officers from seeking warrants out of fear
of litigation and possible personal liability. The specter of per-
sonal liability for a mistake in judgment may cause a prudent
police officer to close his eyes to facts that should at least be
brought to the attention of the judicial officer authorized to make
the decision whether a warrant should issue.
Id. at 353-54 (footnote omitted).
9
The Court noted that “[i]n the portion of the form that called for a
description of the ‘person or property’ to be seized, petitioner typed a
description of respondents’ two-story blue house rather than the alleged
stockpile of firearms.” 540 U.S. at 554.
MILLENDER v. COUNTY OF LOS ANGELES 12749
Despite the fact that the warrant was facially invalid, four
Justices dissented. In his dissent, Justice Kennedy, joined by
Chief Justice Rehnquist, stated that the central question is
whether “someone in the officer’s position could reasonably
but mistakenly conclude that his conduct complied with the
Fourth Amendment.” 540 U.S. at 566. He commented that an
officer “may be unaware of existing law and how it should be
applied,” “may misunderstand important facts about the
search and assess the legality of his conduct based on that
misunderstanding,” or “may misunderstand elements of both
the facts and the law.” Id. at 566-67. Justice Kennedy asserted
that the “qualified immunity doctrine applies regardless of
whether the officer’s error is a mistake of law, a mistake of
fact, or a mistake based on mixed questions of law and fact.”
Id. at 567.
Justice Kennedy went on to assert that language in United
States v. Leon, 468 U.S. 897 (1984), was not applicable to the
situation before the Court because the respondents “do not
make the usual claim that they were injured by a defect that
led to an improper search” but “were injured simply because
the warrant form did not contain the correct description of the
property to be seized even though no property was seized.” Id.
at 570-71. He concluded that the Court “has stressed ‘the pur-
pose of encouraging recourse to the warrant procedure’ can be
served best by rejecting overly technical standards when
courts review warrants.” Id. at 571 (quoting Gates, 462 U.S.
at 237).
Justice Thomas filed a separate dissenting opinion, joined
by Chief Justice Rehnquist and Justice Scalia, which in addi-
tion to questioning whether the underlying search was uncon-
stitutional, held that the officer was entitled to qualified
immunity. He objected that the Court had used an inappropri-
ate “high level of generality” to establish a clear violation of
the Constitution.10 Instead, he opined that the focus should be
10
Justice Thomas explained:
The qualified immunity inquiry rests on “the ‘objective legal rea-
12750 MILLENDER v. COUNTY OF LOS ANGELES
on “ ‘the objective (albeit fact-specific) question whether a
reasonable officer could have believed Anderson’s warrant-
less search to be lawful, in light of clearly established law and
the information the searching officer possessed.’ ” Id. at 578
(quoting Anderson, 583 U.S. at 641).
A third Supreme Court decision, Leon, 468 U.S. 897, is
also instructive. In Leon, the Supreme Court adopted a good-
faith exception for the exclusionary rule where evidence had
been obtained as a result of a warrant that was subsequently
determined to lack probable cause. In doing so, the Court
stressed that the “detached scrutiny of a neutral magistrate . . .
is a more reliable safeguard against improper searches than
the hurried judgment of a law enforcement officer.” Id. at
913-14. The Court noted that “[r]easonable minds frequently
may differ on the question whether a particular affidavit
establishes probable cause, and we have thus concluded that
the preference for warrants is most appropriately effectuated
by according ‘great deference’ to a magistrate’s determina-
sonableness’ of the action, Harlow [v. Fitzgerald, 457 U.S. 800,
819 . . . (1982)], assessed in light of the legal rules that were
‘clearly established’ at the time it was taken.” Anderson v.
Creighton, 483 U.S. at 639 . . . The outcome of this inquiry “de-
pends substantially upon the level of generality at which the rele-
vant ‘legal rule’ is . . . identified. For example, the right to due
process of law is quite clearly established by the Due Process
Clause, and thus there is a sense in which any action that violates
that Clause . . . violates a clearly established right.” Ibid. To
apply the standard at such a high level of generality would allow
plaintiffs “to convert the rule of qualified immunity . . . into a
rule of virtually unqualified liability simply by alleging violation
of extremely abstract rights.” Ibid. The Court in Anderson criti-
cized the Court of Appeals for considering the qualified immu-
nity question only in terms of the petitioner’s “right to be free
from warrantless searches of one’s home unless the searching
officers have probable cause and there are exigent circum-
stances.” Id. at 640.
540 U.S. at 578.
MILLENDER v. COUNTY OF LOS ANGELES 12751
tion.” Id. at 914 (internal citation omitted). The Court, how-
ever, noted that deference was not boundless, and did not
preclude inquiry into (1) “the knowing or reckless falsity of
the affidavit [supporting the warrant],” (2) whether the magis-
trate “merely served as a rubber stamp for the police,” and (3)
whether the affidavit provided the magistrate “with a substan-
tial basis for determining the existence of probable cause.” Id.
at 914-15 (quoting Gates, 462 U.S. at 239). Thus, a reviewing
court “may properly conclude that, notwithstanding the defer-
ence that magistrates deserve, the warrant was invalid because
the magistrate’s probable-cause determination reflected an
improper analysis of the totality of the circumstances, . . . or
because the form of the warrant was improper in some
respect.” Id. at 915 (internal citation omitted).
Nonetheless, the Court noted that “where the officer’s con-
duct is objectively reasonable, excluding the evidence will not
further the ends of the exclusionary rule in any appreciable
way: for it is painfully apparent that . . . the officer is acting
as a reasonable officer would and should act in similar cir-
cumstances.” Id. at 919-20 (internal quotation marks and cita-
tion omitted). The Court commented that “[i]t is the
magistrate’s responsibility to determine whether the officer’s
allegations establish probable cause,” and “[i]n the ordinary
case, an officer cannot be expected to question the magis-
trate’s probable-cause determination or his judgment that the
form of the warrant is technically sufficient.” Id. at 920. The
Court concluded that “[p]enalizing the officer for the magis-
trate’s error, rather than his own, cannot logically contribute
to the deterrence of Fourth Amendment violations.” Id.
Finally, the Court explained that the officer’s reliance on
the magistrate’s probable-cause determination must be objec-
tively reasonable. Id. at 922. The “good faith inquiry is con-
fined to the objectively ascertainable question whether a
reasonably well-trained officer would have known that the
search was illegal despite the magistrate’s authorization.” Id.
at 920 n.23. The Court then indicates that suppression would
12752 MILLENDER v. COUNTY OF LOS ANGELES
be appropriate where (1) the magistrate “was misled by infor-
mation in an affidavit that the affiant knew was false or would
have known was false except for his reckless disregard for the
truth;” (2) “the issuing magistrate wholly abandoned his judi-
cial role;” (3) where the affidavit was “so lacking in indicia
of probable cause to render official belief in its existence
entirely unreasonable” (quoting Brown v. Illinois, 422 U.S.
590, 610-11 (1975)); or (4) the warrant was facially deficient
“in failing to particularize the place to be searched or the
things to be seized.” Id. at 923.
Although the case at bar concerns qualified immunity and
not the suppression of evidence, the Court’s discussion in
Leon of the role of the magistrate and deference to the magis-
trate informs — as the majority recognizes — our analysis of
the officer’s conduct in our case.
In sum, I agree with the majority that pursuant to Malley
and Groh, the question is whether a reasonably well-trained
officer in the defendant’s situation would have known that the
warrant did not establish probable cause. Op. at 12734-35.
But an appreciation of the specific language in the Supreme
Court’s opinions should lead us to focus on those factors that
transform an abstract standard into a workable guideline for
a line officer.
B. Ninth Circuit Authority
A review of our own precedent reveals and reinforces the
factors that should be considered in determining whether an
officer who sought a warrant reasonably relied on review by
counsel and a magistrate. In KRL v. Estate of Moore, 512 F.3d
1184 (9th Cir. 2008) (“KRL II”), we reiterated the Supreme
Court’s perspective that qualified immunity protects “all but
the plainly incompetent or those who knowingly violate the
law.” Id. at 1189 (quoting Malley, 475 U.S. at 341). We noted
that courts “treat magistrates as more qualified than police
officers to make determinations of probable cause,” and that
MILLENDER v. COUNTY OF LOS ANGELES 12753
as a general matter an officer cannot be expected to question
a magistrate’s probable cause determination. Id. (citing Leon,
468 U.S. at 921). We stated that “[o]fficers lose their shield
of qualified immunity ‘only where the warrant application is
so lacking in indicia of probable cause as to render official
belief in its existence unreasonable.’ ” Id. at 1189-90 (quoting
Malley, 475 U.S. at 344-45).
We then cited Ortiz v. Van Auken, 887 F.2d 1366 (9th Cir.
1989), as an example of where it was reasonable for an officer
to rely on an invalid search warrant that “was not so lacking
in indicia of probable cause as to render official belief in its
existence entirely unreasonable.” KRL II, 512 F.3d at 1190. In
Ortiz, the officers, relying on four anonymous telephone calls
apparently from the same individual, sought a warrant to
search a residence in which the anonymous informant alleged
that explosives were stored. 887 F.2d at 1367-68. The officers
prepared a warrant and took it first to a deputy district attor-
ney and then to a judge, both of whom approved the warrant.
Id. We held that the officers were entitled to qualified immu-
nity in part because review by the deputy district attorney and
the judge weighed in favor of finding that the officers’ belief
was not entirely unreasonable. Id. at 1370. We further noted
that the warrant was not facially overbroad.11
11
We explained:
Ortiz complains that the warrant lacked probable cause — the
very situation confronted by the Supreme Court in Leon. . . . 468
U.S. at 921 . . . . In explaining the parameters of the good faith
exception, Leon distinguished between warrants that are facially
invalid for lack of particularity and those so lacking in indicia of
probable cause as to render an officer’s belief in its existence
“entirely unreasonable.” Id. at 923. Determining whether certain
facts constitute probable cause differs from ascertaining whether
a warrant is so facially overbroad that it precludes reasonable
reliance. Leon teaches that inadequate probable cause does not
necessarily render a warrant facially invalid nor prevent reason-
able belief in the existence of probable cause. The existence of
probable cause may be difficult to determine. Recognizing this,
12754 MILLENDER v. COUNTY OF LOS ANGELES
The panel in KRL II then contrasted Ortiz with United
States v. Kow, 58 F.3d 423 (9th Cir. 1955). In Kow, the war-
rant “authorized the seizure of virtually every document and
computer file at [the business].” Id. at 427. In KRL II, we
explained that in Kow, “approval by an attorney and a magis-
trate did not amount to exceptional circumstances justifying
reasonable reliance by the officers, because the lack of proba-
ble cause was so obvious that any reasonable officer would
conclude that the warrant was facially invalid.”12 512 F.3d at
1190. The panel also noted that in United States v. Stubbs,
873 F.2d 210 (9th Cir. 1989), we held that because the war-
Leon and its progeny encourage officers to consult legal officers
and rely on their opinions. Once this is accomplished, “’there is
literally nothing more the policeman can do in seeking to comply
with the law.’ ” Id. at 921, quoting Stone v. Powell, 428 U.S. 465,
498, . . . (1976) (Burger, C.J., concurring).
887 F.2d at 1370-71.
12
Kow was an appeal from an order suppressing evidence. 58 F.3d at
428. It contains the following comment on severability relevant to our
case:
The government maintains that even if some categories of the
warrant were overbroad, certain sections of the warrant were
valid and evidence seized pursuant to these sections should not
be suppressed. See United States v. Gomez-Soto, 723 F.2d 649,
654 (9th Cir. . . . (1984). However, “severance is not always pos-
sible.” Cardwell, 680 F.2d at 78. In particular, “[i]f no portion of
the warrant is sufficiently particularized to pass constitutional
muster, then total suppression is required. Otherwise the abuses
of a general search would not be prevented.” Id.
Here, none of the fourteen categories of seizable documents was
limited by reference to any alleged criminal activity. Only Cate-
gory G, authorizing seizure of tax returns since 1983, was limited
as to time. Although Category M, authorizing the seizure of all
documents related to HK Video’s dealings with other businesses
sublicensed by HK T.V., arguably was not overbroad, “severance
is not available when the valid portion of the warrant is ‘a rela-
tively insignificant part’ of an otherwise invalid search.” In re
Grand Jury Subpoenas, 926 F.2d at 858 (quoting Spilotro, 800
F.2d at 967).
MILLENDER v. COUNTY OF LOS ANGELES 12755
rant contained no reference to criminal activity and merely
described broad classes of documents, its “facial invalidity
was obvious enough to preclude reasonable reliance.” 512
F.3d at 1190 (citing Stubbs, 873 F.3d at 212). In both Kow
and Stubbs the warrants were obviously invalid on their faces.
In KRL II, we were called upon to determine reasonable
reliance in a more complex setting involving two warrants.13
We held that the officers were entitled to qualified immunity
on a first warrant based on their reliance on review by a dis-
trict attorney and the magistrate because it was not “so lack-
ing in indicia of probable cause as to render official belief
unreasonable,” implicitly recognizing “that reasonable minds
could disagree as to whether probable cause supported the
January 11 warrant.”14 Id. at 1191 (internal citation omitted).
We denied the officers qualified immunity on the second war-
rant because “[e]ven if probable cause existed to believe KRL
was ‘permeated with fraud’ since 1995, no reasonable officer
could conclude that the discovery of a 1990 ledger and several
checks showed that KRL had been primarily engaged in
fraudulent activity since 1990.” KRL I, 384 F.3d at 1117. We
13
KRL II, 512 F.3d 1184, is our second opinion in the case. We previ-
ously addressed issues of absolute and qualified immunity arising out of
the underlying warrants in KRL v. Moore, 384 F.3d 1105 (9th Cir. 2004)
(“KRL I”). In this opinion we explained that in April 1998, KRL had pur-
chased a defunct gasoline station and had an underground gasoline tank
removed. Id. at 1108. The district attorney commenced an investigation
into possible environmental contamination and procured a first warrant
providing for the seizure of a broad range of documents created since Jan-
uary 1, 1995. Id. at 1108-09. The officers undertook a search pursuant to
the warrant, but after finding evidence not within the scope of the warrant,
they returned to the court and sought a second warrant, authorizing seizure
of documents dating back to 1990. Id. at 1109.
14
We explained that the first warrant “ ‘had a more reasonable temporal
limit’ (limiting the search to documents dating back to 1995), ‘it alleged
fraudulent activity and tax evasion dating to 1997,’ ‘it alleged hazardous
water violations in 1995 and 1996,’ and ‘it alleged that Womack withdrew
funds from KRL for personal expenses and illegal activities.’ ” 512 F.3d
at 1191 (quoting KRL I, 384 F.3d at 1116).
12756 MILLENDER v. COUNTY OF LOS ANGELES
concluded that “approval by an attorney and a magistrate did
not justify reasonable reliance, because the lack of probable
cause was so obvious that any reasonable officer reading the
warrant would conclude that the warrant was facially invalid.
See Kow, 58 F.3d at 428-29.” KRL II, 512 F.3d at 1192.
Our decisions in these cases illustrate that the objectively
reasonable standard must be applied on a case-by-case basis.
They also suggest that an officer’s reliance on the review by
a district attorney and magistrate is reasonable at least until
the officer himself seeks to broaden the search warrant well
beyond the scope initially approved. Even then, reliance is
appropriate unless any reasonable officer would conclude that
“the warrant was facially invalid.”
C. Analysis
Our review of Supreme Court and Ninth Circuit cases
addressing reasonable reliance reveals certain considerations
that transform what might otherwise be an abstract question
into a working guide for police officers. Among these consid-
erations are: (1) whether it was reasonable for the officer to
apply for the warrant, see Malley, 475 U.S. at 345; (2)
whether there was sufficient probable cause to issue a war-
rant, see id.; (3) whether the warrant was facially invalid, see
Groh, 540 U.S. at 564; (4) whether the warrant properly iden-
tified the limited matters to be searched, see Kow, 58 F.3d at
427; see also Stubbs, 873 F.2d at 212; (5) whether the officer
fairly sought review by his or her superiors, counsel and a
magistrate, see KRL II, 512 F.3d at 1190; and (6) whether the
officer’s misunderstanding was reasonable even where there
was no probable cause. See Leon, 468 U.S. at 914.
All of these factors should be applied in a manner consis-
tent with the Supreme Court’s perspective that qualified
immunity should “amply” protect “all but the plainly incom-
petent or those who knowingly violate the law.” Malley, 475
U.S. 341; see also KRL II , 512 F.3d at 1189.
MILLENDER v. COUNTY OF LOS ANGELES 12757
III
The application of these factors to the present case compels
a determination that the officers reasonably relied on their
superiors, the district attorney, and the magistrate to correct
the alleged over breadth in the search warrant.
First, as this case comes to us, we accept that it was reason-
able for the officers to apply for the warrant and that there
was sufficient probable cause for the warrant to issue. In the
district court, plaintiffs challenged whether the affidavit estab-
lished probable cause to believe that Bowen could be found
at the residence, but the district court denied that claim. On
this interlocutory appeal from the district court’s denial of
qualified immunity, we accept the district court’s determina-
tion that there was sufficient probable cause to allow the offi-
cer to apply for the nighttime search warrant and for the
magistrate to issue the warrant.15
Second, the warrants were facially valid. They adequately
identified the location to be searched, the person to be
arrested, and the items to be seized. Regardless of whether
there was probable cause to search for firearms and indicia of
15
Indeed, the decision to conduct a nighttime search of Mrs. Millender’s
home may be the most disturbing decision in this case, as Mrs. Millender
appears to have had no connection with the underlying crime. Judge Fer-
nandez, a member of the initial three-judge panel, recognized this in his
concurring opinion, noting: “[w]hen I read and reread the warrant and the
affidavit that supports it, I come away with the feeling that there is
extremely little support for the search of a third person’s home for all fire-
arms and ammunition.” Millender v. County of Los Angeles, 564 F.3d
1143, 1151 (9th Cir. 2009). Mrs. Millender’s connection to Bowen
appears to be that at one time she had been Bowen’s foster mother. How-
ever, the district court held that the decision to conduct a nighttime search
of the residence was reasonable, and accordingly, we view the warrant in
that light.
12758 MILLENDER v. COUNTY OF LOS ANGELES
gang membership, these limited items were properly identi-
fied on the face of the warrant.16
Third, Officer Messerschmidt scrupulously followed the
proper procedures in seeking the arrest and search warrants.
The warrant affidavit was reviewed by his sergeant and
Messerschmidt consulted a lieutenant. Moreover, the warrants
were reviewed by a deputy district attorney before they were
presented to, reviewed by, and signed by a magistrate.
Messerschmidt followed the Supreme Court directions in
Leon to seek the “detached scrutiny of a neutral magistrate.”
468 U.S. at 913.
Despite accepting that there were reasonable grounds for
seeking the warrants, that there was sufficient probable cause
to issue the search warrant, that the warrant was facially valid,
and that the proper procedures were followed to have the war-
rants reviewed and approved by a neutral magistrate, the
majority nonetheless concludes that the absence of probable
cause for two sections of the warrant was so obvious that the
officer is not entitled to qualified immunity. Despite our
observation, and the Supreme Court’s observation, that “rea-
sonable minds frequently may differ on the question whether
a particular affidavit establishes probable cause,” KRL II, 512
F.3d at 1189 (quoting Leon, 468 U.S. at 914), the majority, in
essence, considers the officer to have been incompetent or
dishonest. Initially, it should be noted that the majority does
not suggest that the officer was dishonest. Although the plain-
16
The majority’s concern with the “breadth” of the warrant is really a
concern with whether there was probable cause to support the questioned
provisions of the warrant. See Op. 12722, 12728. In the case relied upon
by the majority, United States v. SDI Future Health, 569 F.3d 684 (9th
Cir. 2009), we explained that for a warrant not to be “overbroad” there
must be probable cause to seize the particular thing named in the warrant,
and that this means “a fair probability that contraband or evidence of a
crime will be found in a particular place, based on the totality of circum-
stances.” Id. at 702-03 (quoting United States v. Diaz, 491 F.3d 1074,
1078 (9th Cir. 2007)). Probable cause is discussed later in this dissent.
MILLENDER v. COUNTY OF LOS ANGELES 12759
tiffs in the district court argued that the officer had failed to
present the magistrate with all the relevant facts, the district
court rejected those contentions, and there is nothing in the
majority’s opinion that resurrects that contention. Rather, the
majority’s opinion basically holds that the lack of relationship
between the charged crime by Bowen and certain items
described in the search warrant was so obvious that the officer
may be held personally liable for having entertained a con-
trary thought. Of course, in light of my perspective on
whether the search might include firearms other than the
sawed-off shotgun, I think that the officer’s inclusion of other
firearms in the warrant, if not proper, was certainly objec-
tively reasonable.
How could the officer have thought that he could search for
indicia of gang membership? We must ask this question based
on what the officer knew when he prepared his affidavit.
Here, we agree that the officer knew that Bowen had fired a
sawed-off shotgun at a person in public, that he was a felon,
and that he had ties with a street gang. We also accept that the
officer reasonably believed that Bowen was “hiding out” at
the house on 120th Street. Why are these “facts” not sufficient
to allow the officer initially to include a search for indicia of
gang membership in his warrant application? Indeed, the affi-
davit in support of the warrant offered precisely this line of
reasoning.17
It appears that ultimately there was no evidence of a link
17
The officer set forth his specialized training in the field of gang-
related crimes, and his participation in hundreds of interviews with indi-
viduals who had been sentenced or were about to be sentenced. He stated
that these interviews provided him with “information pertaining to the
manners in which gang-related assaults are committed, the motives for
such assaults, and the concealment of weapon(s) used in such assaults.”
He further stated that his investigation had shown that Bowen had gang
ties to the Mona Park Crip gang, and asserted that this fact in connection
with the nature of the underlying crime justified night service of the war-
rant.
12760 MILLENDER v. COUNTY OF LOS ANGELES
between Bowen’s assault on Kelly with a deadly weapon and
his membership in a street gang, but the officer did not know
this when he applied for the warrant. Given that Bowen was
a felon, a gang member, and had used a sawed-off shotgun,
the possession of which might well be illegal, the officer may
reasonably have conceived of possible ties between the crime,
the weapon and the gang. I do not disagree with the district
court’s and the majority’s determination that nevertheless
there was insufficient probable cause to support a warrant for
indicia of gang membership. Rather, my point is only that it
was reasonable for the officer to think that there might be suf-
ficient probable cause, at least to include the request in the
initial application that would then be reviewed by his superi-
ors, a deputy district attorney and a magistrate. See KRL II,
512 F.3d at 1192 (indicating that officers should not be
required “to question reasonable assessments of probable
cause by government attorneys and magistrates”).
The officer may well have made factual and legal mistakes.
See Groh, 540 U.S. at 566-67 (J. Kennedy, dissenting). He
may have thought that the facts that Bowen was a felon, a
gang member, and had committed an assault with a deadly
weapon created probable cause to search for indicia for gang
membership. He was wrong, but objectively viewed, his mis-
take was not objectively unreasonable.18
18
Contrary to the majority’s assertion, see Op. at 12739-40, this conclu-
sion is not based on the dissenting opinion in Malley and Groh, but on the
application of the standard set forth in those opinions. The determination
of whether a “well trained officer would have known that the search was
illegal despite the magistrate’s authorization” (Leon, 468 U.S. at 922
n.23), requires an evaluation of the particular facts of the case. In Malley,
the Court did not determine whether “petitioner’s conduct . . . was in fact
objectively reasonable.” 475 U.S. at 345 n.8. In Groh, the Court referred
to this as “the particularity requirement.” 540 U.S. at 563. It is in the appli-
cation of the “particularity requirement” to a specific fact situation that the
dissents in Malley and Groh are relevant when evaluating whether the
officer “should not have applied for the warrant.” Malley, 475 U.S. at 545.
MILLENDER v. COUNTY OF LOS ANGELES 12761
One way of ascertaining whether a mistaken belief was rea-
sonable is to compare it to other cases where we have found
that an officer was not entitled to qualified immunity. I can
find no clear precedent that supports the majority’s conclu-
sion. In Kow, 58 F.3d 423, “the lack of probable cause was
so obvious that any reasonable officer would conclude that
the warrant was facially invalid.” KRL II, 512 F.3d at 1190.
Similarly, the warrant in Stubbs, 873 F.2d 210, was facially
invalid. KRL II, 512 F.3d at 1190. Perhaps the most analogous
case is KRL II. There, we denied qualified immunity to Offi-
cer Hall because we found that “no reasonable officer could
conclude that the discovery of a 1990 ledger and several
checks showed that KRL had been primarily engaged in
fraudulent activity since 1990.” 512 F.3d at 1192 (quoting
KRL I, 384 F.3d at 1117). However, our denial of qualified
immunity was based on: (1) Hall’s “leadership role in the
overall investigation;” (2) our factual determination that “the
discovery of a ledger and several checks predating the alleg-
edly fraudulent activity by five years did not provide suffi-
cient probable cause to search for documents dating back to
1990;” and (3) our conclusion that the warrant was obviously
facially invalid. KLR II, 512 F.3d at 1192-93. Although Offi-
cer Messerschmidt may have been in charge of the investiga-
tion of Bowen, he did not have a leadership position similar
to that held by Hall in KRL II.19 Furthermore, his incorrect
factual conclusion was not as far-fetched as that in issue in
KRL II, and the warrant was not obviously facially invalid.
It might also be noted that in 2003, when Messerschmidt
sought the warrant, neither of our opinions in KRL had issued.
However, we had decided Ortiz, 887 F.3d 1366. In that case,
the officer sought a warrant to search a home for weapons and
explosives based on only four telephone calls by the same
anonymous person. Id. at 1367. Nonetheless, while finding
19
Unlike Officer Hall who executed the search at issue in KRL II, 384
F.3d at 1109, Officer Messerschmidt was assigned to traffic control on the
street during the search of the Millender residence.
12762 MILLENDER v. COUNTY OF LOS ANGELES
that there was no probable cause to support the warrant, we
granted the police officer qualified immunity, commenting
that an “error of constitutional dimensions may have been
committed with respect to the issuance of the warrant, but it
was the judge, not police officers who made the critical mis-
take.” Id. at 1369. I would hold that here, as in Ortiz, the offi-
cer’s “conduct was ‘sufficient to establish objectively
reasonable behavior.’ ” Id. at 1371 (quoting United States v.
Freitas, 856 F.2d 1425, 1431 (9th Cir. 1988)).
Moreover, the majority’s opinion appears to extend unnec-
essarily the guiding Supreme Court opinions. In Malley, the
Court stated that the question was “whether a reasonably
well-trained officer in petitioner’s position would have known
that his affidavit failed to establish probable cause and that he
should not have applied for the warrant.” 475 U.S. 345. In
Groh, the Court denied qualified immunity because the war-
rant “did not describe the items to be seized at all” and “was
so obviously deficient that we must regard the search as ‘war-
rantless’ within the meaning of our case law.” 540 U.S. at
558. Here, there is really no question that there was probable
cause to issue the warrant and that it was not facially invalid.
I recognize that each provision of a search warrant should
be supported by probable cause. See In re Grand Jury Sub-
poenas Dated Dec. 10, 1987, 926 F.2d 847, 857 (9th Cir.
1991) (stating that “probable cause must exist to seize all the
items of a particular type described in the warrant”). Nonethe-
less, we have held in appeals from suppression orders that
evidence from valid portions of a warrant may be severed
from invalid portions.20 Similarly, we should recognize that
20
In SDI Future Health, we “endorsed a doctrine of severance,” noting
that we had “previously allowed severance when a warrant lacked particu-
larity because of some unduly broad language in the warrant.” 568 F.3d
at 707 (internal citation omitted). We commented that we do not allow
severance where “the valid portion of the warrant is ‘a relatively insignifi-
cant part’ of an otherwise invalid search.” Id. (quoting Kow, 58 F.3d at
428). Here, the focus of the search was for Bowen and his sawed-off shot-
gun. It seems doubtful that had he or the shotgun been found, that evi-
dence would have been suppressed because of the overbreadth of the
warrant.
MILLENDER v. COUNTY OF LOS ANGELES 12763
the lack of probable cause for one clause in an otherwise valid
warrant does not mean that the officer’s decision to seek the
warrant, or even to include that clause in the warrant, was
necessarily unreasonable.21 Instead, at least where the warrant
is supported by probable cause and is facially valid, but there
is some question as to the sufficiency of evidence to support
a section of the warrant, then absent some showing of bad
faith on the part of the officer or of a failure to present all the
relevant known facts to the magistrate (see Leon, 468 U.S. at
923), the officer should be allowed to rely on his superiors,
the district attorney and the magistrate to correct any over-
breadth. Certainly, that should be the case here, as the offi-
cer’s affidavit clearly sets forth the basis on which the officer
mistakenly thought he could seek a warrant to search for indi-
cia of gang membership.
Moreover, the two provisions of the warrant at issue —
those authorizing searches for firearms and for indicia of gang
membership — do not appear to have been very important
either when the warrant was initially sought or later. First, as
noted, the primary purpose of the search was to arrest Bowen.
Second, because the district court upheld the warrant’s provi-
sion allowing the search for, and seizure of, indicia of home
ownership, and because the majority concedes that the offi-
cers were entitled to search for disassembled parts of the
sawed-off shotgun, the questioned provisions did not expand
the actual scope of the search. Third, as the search only
resulted in the seizure of Mrs. Millender’s shotgun and a box
of ammunition (and no indicia of gang membership), it does
not appear that plaintiffs were really harmed by the search
authorized by the questioned provisions of the warrant (as
contrasted to the entry into the home and the general search).
As Justice Kennedy noted in his dissent in Groh, the Supreme
21
Of course, the operating premise remains that there was no probable
cause to support the particular section of the warrant. What is at issue is
only the second prong for qualified immunity, whether the officer, in good
faith, could have relied on the magistrate.
12764 MILLENDER v. COUNTY OF LOS ANGELES
Court has stressed that “ ‘the purpose of encouraging recourse
to the warrant procedure’ can be served best by rejecting
overly technical standards when courts review warrants.” 540
U.S. at 571 (quoting Gates, 462 U.S. at 237). Here, even
accepting that there was no probable cause to support the
questioned provisions of the warrant, because this defect did
not expand the scope of the search nor cause any real harm
to the plaintiffs, it should not defeat an otherwise appropriate
grant of qualified immunity.
This conclusion is reinforced by the purpose of qualified
immunity: to “amply” protect officers other than “the plainly
incompetent or those who knowingly violate the law.” KRL II,
512 F.3d at 1189 (quoting Malley, 475 U.S. at 341). Here, as
noted, there is no suggestion that the officer “knowingly vio-
lated the law.” While the majority concludes that the officer
should have known that the search warrant was too broad, the
length it has to go to make that point suggests that an officer’s
failure to so reason cannot be considered plain incompetence.
Indeed, the very fact that judges on this en banc panel dis-
agree on this point, in itself, weighs in favor of granting quali-
fied immunity.
IV
Last, but not least, I am concerned that the majority’s pars-
ing of the search warrant will lead to uncertainty and needless
litigation. Denying qualified immunity where, as here, the
defect in the warrant (a lack of probable cause for two sec-
tions of a warrant) did not expand the scope beyond what was
constitutional and did not cause any real harm, creates consid-
erable incentive to challenge all but the narrowest of warrants.
Even if the overbreadth of a warrant does not produce any
evidence and does not result in any real harm, a disgruntled
person can overcome a claim of qualified immunity by show-
ing that the officer did not have probable cause to support
some part of the warrant. This seems contrary to the purpose
of qualified immunity. See Malley, 475 U.S. at 141.
MILLENDER v. COUNTY OF LOS ANGELES 12765
Moreover, the approach may well interfere with a police
officer’s ability to properly protect the public and investigate
crimes. Instead of investigating a possible relationship
between an assault with a deadly weapon by a convicted gang
member and the felon’s street gang, the majority would hold
the officer personally liable for not grasping that these facts
did not support the issuance of a warrant for anything other
than the felon and the particular weapon. This appears to be
the type of “high level of generality” that Justice Thomas
warned against in his dissent in Groh, 540 U.S. at 578. Fur-
thermore, this approach may well discourage officers from
following up on leads that they would otherwise bring to the
attention of their superiors for fear of personal liability if they
unwittingly err in their judgment.
*
To recap, although I think that the officer could reasonably
have sought to search for firearms other than the shotgun, I
agree with the majority that there was not a sufficient showing
of a relationship between the assault and gang membership to
provide probable cause for the inclusion of indicia of gang
membership in the search warrant. But, applying the factors
stressed by the Supreme Court and our court, I cannot con-
clude that the officer’s inclusion of the provision in the war-
rant was so objectively unreasonable as to preclude reliance
on the approval of his supervisors, the district attorney and the
magistrate. It was reasonable for the officer to apply for the
warrant, there was probable cause to issue the warrant, the
warrant was not facially invalid, the warrant properly identi-
fied the limited matters to be seized, and the officer followed
the proper procedures for seeking review by his superiors, a
district attorney and a magistrate. Moreover, at least as to the
questioned provisions, it does not appear that the officer hid
any relevant information from his superiors or the magistrate
and his affidavit plainly presented the grounds on which he
sought indicia of gang membership. Furthermore, I have
found no precedent that suggests that an officer may not rely
12766 MILLENDER v. COUNTY OF LOS ANGELES
on his superiors and the magistrate when he makes an honest
mistake in thinking that there is probable cause to support a
provision in an otherwise valid warrant. The majority’s con-
trary conclusion is of little real benefit to the plaintiffs, and
unfairly punishes a line officer for what, at most, was a failure
on the part of his superiors, the deputy district attorney and
the magistrate, to properly limit the warrant.22 Here, as in
Ortiz, an “error of constitutional dimensions may have been
committed with respect to the issuance of the warrant, but it
was the judge, not the police officers who made the critical
mistake.” 887 F.2d at 1369. I would hold that the officer’s
application for a search warrant which included searching for
other firearms and indicia of gang membership was not objec-
tively unreasonable and that the officer is entitled to qualified
immunity.
SILVERMAN, Circuit Judge, with whom TALLMAN,
Circuit Judge, joins, dissenting:
I join Parts II through IV of Judge Callahan’s dissent, but
write separately to emphasize several points.
The doctrine of qualified immunity “protects government
officials from liability for good faith misjudgments and mis-
22
There is some irony in judges, who enjoy judicial immunity, holding
that a line police officer may be personally liable for the breadth of a war-
rant when the system as set forth by the Supreme Court depends on the
“detached scrutiny of a neutral magistrate” (Leon, 468 U.S. at 913), and
the magistrate failed to properly perform his or her duty. The officer’s
mistake was clear from his affidavit. He thought that the facts that Bowen
had committed an assault with a deadly weapon, and was a felon and a
gang member were sufficient to allow for the search of indicia of gang
membership. There is no suggestion that the officer hid anything from his
superiors, the district attorney, or the magistrate. However, as the magis-
trate has judicial immunity, blame cascades down on the line officer. As
Gilbert & Sullivan noted in The Pirates of Penzance: “a policeman’s lot
is not a happy one.”
MILLENDER v. COUNTY OF LOS ANGELES 12767
takes,” and that is precisely the situation here. Clement v.
Gomez, 298 F.3d 898, 903 (9th Cir. 2002). The judge issued
a defective warrant and the deputies mistakenly relied on it,
but their mistake was entirely in good faith. The deputies did
not act until they obtained the warrant and they did only what
the warrant authorized them to do. They did not engage in any
form of misconduct. They did not rough-up the residents.
They did not put false information in the affidavit, conceal
exculpatory information, or seize property not mentioned in
the four-corners of the warrant. This is not a case where
police officers sought to evade the warrant requirement; to the
contrary, they sought to comply with it. The record is totally
devoid of any evidence that the deputies acted other than in
good faith.
Qualified immunity protects from liability “all but the
plainly incompetent and those who knowingly violate the
law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). Does the
deputies’ mistake rise to the level of plain incompetence or
intentional violation of the law? I cannot imagine a clearer
case of reasonable error than this one. In determining whether
the deputies reasonably relied on the warrant, “all of the cir-
cumstances . . . may be considered.” United States v. Leon,
468 U.S. 897, 923 n.23 (1984). It is undisputed that the depu-
ties knew Bowen to be a convicted felon with a very violent
history, including convictions for assault with a deadly
weapon and being a felon in possession of a firearm. They
also knew that he reportedly had just shot at the victim several
times with a short-barrel shotgun. As a convicted felon,
Bowen was prohibited from possessing firearms. Under such
circumstances, how can it be “entirely unreasonable” — not
just a mistake but entirely unreasonable — for the deputies to
have relied on a judge-signed warrant authorizing the seizure
of all of Bowen’s guns? See Ortiz v. Van Auken, 887 F.2d
1366, 1370 (9th Cir. 1989).
I also do not see how the deputies can be deemed to be
plainly incompetent, or to have knowingly violated the law,
12768 MILLENDER v. COUNTY OF LOS ANGELES
for relying on the warrant’s authorization to seize Mona Park
Crip gang paraphernalia. The deputies had probable cause to
believe both that Bowen was tied to the Mona Park Crip gang
and that he was residing at the Millender residence. Had
Mona Park Crip paraphernalia been found in close proximity
to guns during the search of the Millender house — say, a gun
concealed in Mona Park Crip clothing — such a discovery
would have tended to prove that the guns were Bowen’s and
not the Millenders’. It is commonplace for search warrants to
authorize the seizure of items that can help identify persons
in control of the premises or contraband. See Ewing v. City of
Stockton, 588 F.3d 1218, 1229 (9th Cir. 2009). The deputies’
belief in the validity of this portion of the warrant was entirely
reasonable.
Qualified immunity insulates police officers from the threat
of personal liability so that they can “execute [their] office
with the decisiveness and the judgment required by the public
good.” Scheuer v. Rhodes, 416 U.S. 232, 240 (1974). The
tradeoff for this perceived societal benefit is that some wrongs
will go uncompensated. That is the nature of immunity, and
it is a tradeoff adopted by the Supreme Court itself.