Millender v. County of L.A.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AUGUSTA MILLENDER, BRENDA 

MILLENDER, WILLIAM JOHNSON,

Plaintiffs-Appellees,

v.

COUNTY OF LOS ANGELES, LOS

ANGELES COUNTY SHERIFF’S No. 07-55518

DEPARTMENT, SHERIFF LEROY BACA,

SCOTT WALKER, RICK RECTOR,  D.C. No.

CV-05-02298-DDP

DONALD NICHIPORUK, RICHARD

OPINION

SCHLEGEL, DEPUTY BRICE STELLA,

JACK DEMELLO, DAVID O’SULLIVAN,

JAMES RITENOUR, IAN STADE,

ROBERT J. LAWRENCE AND CURT

MESSERSCHMIDT,

Defendants-Appellants.



Appeal from the United States District Court

for the Central District of California

Dean D. Pregerson, District Judge, Presiding

Argued and Submitted

October 21, 2008—Pasadena, California

Filed May 6, 2009

Before: Ferdinand F. Fernandez, Consuelo M. Callahan and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Callahan;

Concurrence by Judge Fernandez;

Dissent by Judge Ikuta

5261

5264 MILLENDER v. COUNTY OF LOS ANGELES

COUNSEL

Eugene P. Ramirez (argued) and Julie M. Fleming of Man-

ning & Marder, Kass, Ellrod, Ramirez, LLP, of Los Angeles,

California for the defendants-appellants.

Olu K. Orange (argued), Robert Mann, and Donald W.

Cook of Los Angeles, California for the plaintiffs-appellees.

OPINION

CALLAHAN, Circuit Judge:

This § 1983 action arises out of a nighttime search and sei-

zure. In a comprehensive opinion, the district court granted

qualified immunity to some defendants on some issues and

denied it on others. This interlocutory appeal by the City of

Los Angeles and two deputy sheriffs, Detective Messersch-

midt and Sergeant Lawrence, challenges only two aspects of

the district court’s order: the denial of qualified immunity on

the scope of the search warrant to cover (1) evidence of gang

affiliation and (2) all firearms and firearms-related items. We

reverse the district court’s denial of qualified immunity

because we conclude that the officers were entitled to immu-

nity under the second prong of the test set forth in Saucier v.

Katz, 533 U.S. 194, 201 (2001), as they reasonably relied on

the approval of the warrant by a deputy district attorney and

a judge.

MILLENDER v. COUNTY OF LOS ANGELES 5265

I

Ms. Kelly had an ongoing relationship with Mr. Bowen, but

decided to break off the relationship and move out of the resi-

dence on W. 97th Street because of Bowen’s violent temper

and his physical assaults on her. She asked for a sheriff dep-

uty to watch her while she gathered some property from the

residence. Two deputies accompanied Kelly to the residence,

but were then called away to respond to an emergency.

As soon as the deputies left, Bowen appeared and attacked

Kelly. Kelly managed to escape from Bowen and ran to her

car. Bowen then retrieved a black sawed-off shotgun with a

pistol grip from the residence. He ran in front of Kelly’s car,

pointed the gun at Kelly and stated that he would kill her if

she tried to leave. Kelly leaned over in her seat and pushed

the gas pedal all the way down. Bowen jumped out of the

way, fired a round at the car blowing out the front left tire,

and chased the car firing another four rounds. Kelly was able

to drive away and locate a police officer.

Detective Messerschmidt was assigned to investigate the

assault. He reviewed Bowen’s criminal history and deter-

mined that he had multiple felony and misdemeanor arrests.

He met with Kelly and verified the facts of the incident with

her. Kelly told him that she thought that Bowen might be

staying at his foster mother’s home on E. 120th Street. Kelly

also stated that she had been to the foster mother’s (Mrs. Mil-

lender’s) home with Bowen.

Messerschmidt prepared an affidavit in support of a search

warrant for the 120th Street residence. The affidavit states that

Messerschmidt had 14 years’ experience as a peace officer,

was a “Gang Investigator,” and had considerable training and

experience as a gang detective. The affidavit recited Kelly’s

representations of the assault, noting that Bowen had fired a

black sawed-off shotgun with a pistol grip. Messerschmidt

stated that he had “conducted an extensive background search

5266 MILLENDER v. COUNTY OF LOS ANGELES

on the suspect by utilizing departmental records, state com-

puter records, and other police agency records,” and that he

had determined that Bowen resided at the 120th Street resi-

dence.

The affidavit further requested night service of the search

warrant because the investigation had shown that Bowen “has

gang ties to the Mona Park Crip gang” and because 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 for the deputy personnel

serving the warrant, based on the element of surprise.”

The warrant allowed for the search and seizure of (1) arti-

cles of personal property tending to establish the identity of

persons in control of the premises, (2) all firearms and

firearm-related items,1 and (3) articles of evidence showing,

or relevant to, gang membership.2 The search warrant was

1

Specifically, the search warrant allowed the search and seizure of:

All handguns, rifles or shotguns of any caliber, or any firearms

capable of firing ammunition or firearms or devices modified or

designed to allow it to fire ammunition. All caliber of ammuni-

tion, miscellaneous gun parts, gun cleaning kits, holsters which

could hold or have held any caliber handgun being sought. Any

receipts or paperwork, showing the purchase, ownership, or pos-

session 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.

2

The search warrant also allowed the search and seizure of:

Articles of evidence showing street gang membership or affilia-

tion with any Street Gang to include but not limited to any refer-

ence to “Mona Park Crips,” including writings or graffiti

depicting gang membership, activity or identity. Articles of per-

sonal property tending to establish the identity of persons in con-

trol of the premise or premises. Any photographs or photograph

albums depicting persons, vehicles, weapons or locations, which

may appear relevant to gang membership, or which may depict

the item being sought and or believed to be evidence in the case

being investigated on this warrant, or which may depict evidence

of criminal activity. Additionally to include any gang indicia that

would establish the persons being sought in this warrant, affilia-

tion or membership with the “Mona Park Crips” street gang.

MILLENDER v. COUNTY OF LOS ANGELES 5267

reviewed by a sergeant, a police lieutenant, and a deputy dis-

trict attorney, before it was presented to, and signed by, a

judge.

The warrant was served at 5:00 a.m. on November 6, 2003.

Within seconds of announcing their presence, the deputies

broke into the front window and front door. Upon entering the

house, the deputies encountered Mrs. Millender (who was in

her seventies), her daughter and grandson. They followed the

deputies’ instructions and went outside pending the comple-

tion of the search.

The deputies did not find Bowen or the shotgun at the resi-

dence. The search did result in the seizure of Mrs. Millender’s

personal shotgun (Mossberg 12 gauge, black with a wood

stock), a State of California Social Services letter addressed

to Bowen, and a box of .45-caliber ammunition.3

Mrs. Millender, her daughter and grandson (sometimes

referred to as plaintiffs) filed this action in the District Court

for the Central District of California. The complaint named

the County of Los Angeles, the sheriff’s department, the sher-

iff, and a number of individual deputies as defendants. It con-

tained several claims under 42 U.S.C. § 1983 for alleged

violations of the Fourth and Fourteenth Amendment and for

conspiracy to deprive plaintiffs of their civil rights based on

their race. The complaint also set forth supplemental state

claims.

II

The parties filed cross-motions for summary judgment. The

district court found that the warrant was facially valid, that

Messerschmidt’s conduct was reasonable, that there was prob-

3

Bowen was arrested two weeks later. In the middle of the day, Messer-

schmidt knocked at the door of a motel room. He was admitted by

Bowen’s wife and found Bowen hiding under the bed.

5268 MILLENDER v. COUNTY OF LOS ANGELES

able cause to believe Bowen was at the residence, and that the

affidavit adequately supported nighttime service. These deter-

minations are not in issue on appeal.

The district court then addressed the scope of the warrant.

Three aspects of the warrant were challenged: (1) the seizure

of all firearms and firearm-related items; (2) the seizure of

articles of evidence showing, or relevant to, gang member-

ship; and (3) the seizure of articles of personal property tend-

ing to establish the identity of persons in control of the

premises.

The district court found that the warrant was overbroad in

two respects:

First, as to Plaintiffs’ contentions regarding the

search for firearms, it is undisputed that: (1) Bowen

was accused of assaulting Kelly with a specifically-

described sawed-off shotgun; (2) that Kelly gave

Defendants a photograph of Bowen with the shot-

gun; and (3) that the affidavit did not mention any

other weapons or crimes. Defendants argue that,

even so, the warrant was reasonably specific,

because “any caliber of shotgun or receipts would

show possession of and/or purchase of guns.” This

argument is nonsensical and unpersuasive. The

crime specified here was a physical assault with a

very specific weapon. Therefore, defendants were

not entitled to search for all firearms and the warrant

was overbroad in this respect.

Second, Plaintiffs argue that the authorization to

seize gang-related information was overbroad,

because, as Messerschmidt admitted, there is no evi-

dence that the crime at issue was gang-related. In

response, Defendants make the unsupported state-

ment that “[t]he photos sought re gang membership

could be linked with other gang members, evidenc-

MILLENDER v. COUNTY OF LOS ANGELES 5269

ing criminal activity as gang affiliation is an

enhancement to criminal charges." This argument is

unconvincing. Plaintiffs are correct that California

Penal Code § 186.22(b)(1) limits gang enhancements

to cases where the underlying crime was gang-

related . . . . Defendants do not point to any other

basis for their argument or make any additional argu-

ments. Therefore, this court finds that the warrant is

overbroad in its authorization to seize gang-related

items.

The district court rejected plaintiffs’ challenge to the war-

rant’s authorization to seize evidence concerning control of

the premises. It held that the fact that defendants had a picture

of Bowen with the shotgun did not prevent them from seeking

additional ways of tying Bowen to the weapon. It noted that

even if the defendants knew that Mrs. Millender owned the

residence, Bowen could also have controlled the premises to

the extent that he could have stored a weapon there.4 In addi-

tion, the district court noted that although defendants con-

tended that an overbroad warrant may be valid if the

supporting affidavit provides more guidance, here the affida-

vit was no more specific than the warrant.

The district court did not specifically address the second

prong of the Saucier test: that the “contours of the right must

be sufficiently clear that a reasonable official would under-

stand that what he is doing violates that right.” Saucier, 533

U.S. at 202 (internal quotation marks and citation omitted). It

only noted that defendants had “made no additional argu-

ments as to why, even if the warrant was overbroad, the offi-

cers acted reasonably, without knowing that what they were

doing was wrong.”

4

Plaintiffs do not challenge this decision in their appeal.

5270 MILLENDER v. COUNTY OF LOS ANGELES

III

[1] We recently set forth our jurisdiction and the standard

of review on an appeal such as this one in KRL v. Estate of

Moore, 512 F.3d 1184 (9th Cir. 2008). We stated:

Although a denial of summary judgment is ordinar-

ily not an appealable interlocutory order, we have

jurisdiction in this case because the motion for sum-

mary judgment is based on qualified immunity. Lee

v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004). We

review the district court’s denial of summary judg-

ment de novo. Id. Our jurisdiction is limited to ques-

tions of law, and does not extend to qualified

immunity claims involving disputed issues of mate-

rial fact. Jeffers v. Gomez, 267 F.3d 895, 903 (9th

Cir. 2001). Where disputed facts exist, we assume

that the version of the material facts asserted by

Plaintiffs, as the non-moving party, is correct. Id.

512 F.3d at 1188-89.

[2] As we noted in KRL, where a constitutional violation

occurs, a police officer is entitled to qualified immunity if he

acted reasonably under the circumstances. KRL, 512 F.3d at

1189. The Supreme Court in Saucier v. Katz, 533 U.S. 194,

outlined a two-step approach to qualified immunity. The first

inquiry is whether “[t]aken in the light most favorable to the

party asserting the injury, do the facts alleged show the offi-

cer’s conduct violated a constitutional right?” Id. at 201. If the

answer to the first inquiry is yes, the second inquiry is

whether the right was clearly established: in other words,

“whether it would be clear to a reasonable officer that his con-

duct was unlawful in the situation he confronted.” Id. at 202.

In KRL, we further explained the impact of a magistrate’s

approval on officer’s belief that a warrant is valid.

MILLENDER v. COUNTY OF LOS ANGELES 5271

Qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the

law.” Lee, 363 F.3d at 934 (quoting Malley v.

Briggs, 475 U.S. 335, 341 . . . (1986)). In United

States v. Leon, 468 U.S. 897 . . . (1984), the Supreme

Court recognized that “[r]easonable minds fre-

quently may differ on the question whether a particu-

lar affidavit establishes probable cause . . . .” Id. at

914 . . . . Inadequate probable cause for a warrant

does not necessarily render an officer’s reliance

unreasonable because the existence of probable

cause is often a difficult determination. Ortiz v. Van

Auken, 887 F.2d 1366, 1370-71 (9th Cir. 1989).

Rather, “the preference for warrants is most appro-

priately effectuated by according ‘great deference’ to

a magistrate’s determination.” Leon, 468 U.S. at 914

....

When reasonable minds could differ as to the exis-

tence of probable cause, approval of a warrant by a

government attorney and ratification by a neutral and

detached magistrate usually establishes objectively

reasonable reliance. Ortiz, 887 F.2d at 1369-70.

Courts treat magistrates as more qualified than

police officers to make determinations of probable

cause. See, e.g., Malley, 475 U.S. at 346 n. 9 . . . .

As a general matter, the Constitution does not

require officers to “second-guess the legal assess-

ments of trained lawyers.” Arnsberg v. United States,

757 F.2d 971, 981 (9th Cir. 1985); see also Leon,

468 U.S. at 921 . . . (“In the ordinary case, an officer

cannot be expected to question the magistrate’s

probable-cause determination or his judgment that

the form of the warrant is technically sufficient.”).

Officers lose their shield of qualified immunity

“[o]nly where the warrant application is so lacking

in indicia of probable cause as to render official

5272 MILLENDER v. COUNTY OF LOS ANGELES

belief in its existence unreasonable.” Malley, 475

U.S. at 344-45 . . . (citing Leon, 468 U.S. at 923 . . .).

In other words, an officer who prepares or executes

a warrant lacking probable cause is entitled to quali-

fied immunity unless “no officer of reasonable com-

petence would have requested the warrant.” Id. at

346 n. 9 . . . . When a warrant is so bereft of proba-

ble cause that official reliance is unreasonable, the

officer executing the warrant “cannot excuse his own

default by pointing to the greater incompetence of

the magistrate.” Id.

512 F.3d at 1189-90.

IV

[3] The district court, as required by the law in effect at the

time, properly considered whether the warrant was overbroad

with respect to firearms and evidence showing gang member-

ship. On January 21, 2009, the Supreme Court in Pearson v.

Callahan, 129 S. Ct. 808 (2009), held that “judges of the dis-

trict courts and the courts of appeals should be permitted to

exercise their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed

first in light of the circumstances in the particular case at

hand.” Id. at 818. It further stated that “the judges of the dis-

trict courts and the courts of appeals are in the best position

to determine [what] order of decisionmaking will best facili-

tate the fair and efficient disposition of each case.” Id. at 821.

We need not review the district court’s finding that the war-

rant was overbroad because we determine that even if it were

overbroad, Messerschmidt and Lawrence are entitled to quali-

fied immunity under the second prong of the Saucier test.

V

[4] The record shows that Messerschmidt and Lawrence

reasonably relied on the approval of the search warrant by a

MILLENDER v. COUNTY OF LOS ANGELES 5273

deputy district attorney and a judge. Although they may not

have stressed the argument in the district court, our review of

the record shows that the deputies raised their reliance on the

approval of the search warrant in their motion for summary

judgment. Moreover, the record shows that the warrant was

presented to and signed by a state court judge, and plaintiffs

do not allege that there were any irregularities in the process-

ing of the warrant. Accordingly, we consider the deputies’

immunity under the second prong of the Saucier test, assum-

ing the version of the material facts asserted by the plaintiffs.

KLR, 512 F.3d at 1189.

[5] Messerschmidt’s affidavit stated that Bowen had

engaged in an assault with a deadly weapon, had ties with a

gang, and probably had a criminal record.5 Accordingly, an

officer may reasonably have thought that the warrant could

include the search for, and seizure of, firearms other than the

sawed-off shotgun, as well as evidence relating to gang affili-

ation. The record, even read in a light most favorable to plain-

tiffs is not “so lacking in indicia of probable cause as to

render an officer’s belief in its existence ‘entirely unreason-

able.’ ” Ortiz v. Van Auken, 887 F.3d 1366, 1370-71 (quoting

United States v. Leon, 468 U.S. 897, 923 (1984).

[6] The reasonableness of the officers’ perspective is clear

when this case is compared to the cases cited in KLR, in

which officers were not entitled to rely on the approval of an

attorney and a magistrate. Id. In United States v. Kow, 58 F.3d

423, 428 (9th Cir. 1995), the warrant “listed entire categories

of documents to be seized, encompassing essentially all docu-

ments on the premises.” In United States v. Stubbs, 873 F.2d

5

Although the affidavit did not state that Bowen had a criminal record,

the existence of such a record is a reasonable inference from the affidavit’s

statements concerning the nature of the crime and the weapon used, as

well as its representation that Bowen “has gang ties to the Mona Park Crip

gang based on information provided by the victim and the cal-gang data

base.”

5274 MILLENDER v. COUNTY OF LOS ANGELES

210, 212 (9th Cir. 1989) the warrant “contained no reference

to criminal activity, and merely described broad classes of

documents.” Although the warrant in this case may have been

overbroad, it was limited to firearms and firearm-related items

and evidence related to gang membership. The inclusion of

these enumerated materials arose out of the officer’s particu-

lar concerns with Bowen, if not with the specific crime under

investigation. In any event, the deputies could reasonably

have expected the deputy attorney general and the state judge

to limit the warrant if it sought items for which there was no

probable cause.

[7] In KLR, we reiterated the Supreme Court’s perspectives

that “[r]easonable minds frequently may differ on the question

whether a particular affidavit establishes probable cause,” and

that “the preference for warrants is most appropriately effec-

tuated by according ‘great deference’ to a magistrate’s deter-

mination.” KLR, 512 F.3d at 1189 (quoting Leon, 468 U.S. at

914). There is nothing in this record to support a departure

from this approach. Accordingly, as the record shows that

Messerschmidt and Lawrence could reasonably rely on the

deputy district attorney and the judge to limit the scope of the

warrant to items covered by the showing of probable cause,

their reliance on the warrant as signed by the judge was rea-

sonable and they are entitled to qualified immunity under the

second prong of Saucier, 533 U.S. at 202. In other words, we

do not think that here it would have been “clear to a reason-

able officer that his conduct was unlawful in the situation he

confronted.” Id.

VI

In sum, accepting, but not ruling on, the district court’s

determination that the warrant was overbroad, see Pearson,

129 S. Ct. 808, we determine that on this record, even when

viewed in a light most favorable to plaintiffs, the deputies

could reasonably defer to the review of the warrant by a dep-

uty district attorney and a judge. See Leon, 468 U.S. at 921;

MILLENDER v. COUNTY OF LOS ANGELES 5275

KRL, 512 F.3d at 1189. Accordingly, Detective Messersch-

midt and Sergeant Lawrence are entitled to qualified immu-

nity for the overbreadth of the warrant under the second prong

of the Saucier test. See Saucier, 533 U.S. at 202. The district

court’s denial of qualified immunity is VACATED, and the

case is REMANDED with instructions to grant Detective

Messerschmidt and Sergeant Lawrence qualified immunity on

the challenged scope of the warrant.

FERNANDEZ, Circuit Judge, concurring:

I concur, but in light of the strong majority opinion and the

strong dissent, I should explain further.

Although we need not decide the issue, I am satisfied that

the warrant was overbroad and that the search, therefore, vio-

lated the constitutional rights of the Millenders. But, of

course, the officers did not merely act on their own. They had

a warrant. In seeking the warrant, they had asked a superior

officer to review the affidavit and the proposed scope of the

warrant. It was approved. It was then submitted to a deputy

district attorney, who also approved it. Then, of course, it was

submitted to a judge for his approval. He signed it with no

apparent caveats or misgivings. In other words, in that sense,

the officers did precisely what we want them to do. As we

said over fifteen years ago in a slightly different context,

where a judicially issued warrant was not involved:

The appellants did not simply act rashly and without

regard to [a person’s] legal or constitutional rights.

Rather, they did just what the courts encourage offi-

cials to do. They sought an expert legal opinion

before they acted.

We have previously had occasion to comment

upon that kind of responsible behavior by police

officials.

5276 MILLENDER v. COUNTY OF LOS ANGELES

....

In fine, when the employees of LAPD were faced

with what can only be called a complex and uncer-

tain legal issue, they sought legal advice and then

followed that advice. It would be counterproductive

and even oppressive were we to find that they can

now be held liable in damages for their actions. This

is not to say that officials can ignore clear constitu-

tional rules and hide behind the advice of an attor-

ney.

Los Angeles Police Protective League v. Gates, 907 F.2d 879,

888 (9th Cir. 1990) (citations omitted).

Not surprisingly, that approach has been applied when a

warrant has been obtained. KRL v. Estate of Moore, 512 F.3d

1184, 1189-90 (9th Cir. 2008) (citations omitted). In other

words, we are much inclined to protect officers when they

seek the aid of the court before they act; that alone advances

the purposes of the Fourth Amendment. See Ortiz v. Van

Auken, 887 F.2d 1366, 1368-71 (9th Cir. 1989). In sum “[o]ur

cases repeatedly emphasize [the] distinction between warrants

with disputable probable cause and warrants so lacking in

probable cause that no reasonable officer would view them as

valid.” KRL, 512 F.3d at 1190; see also United States v.

Stubbs, 873 F.2d 210, 212 (9th Cir. 1989).

Here, as I see it, we are at the outer limits of our tolerance

in that respect. When 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 per-

son’s home for all firearms and ammunition. The weapon

involved in the offense in question was identified with preci-

sion and the officers even had photographs of it. Similarly,

although Bowen was, indeed, a bad man and a gang member,

it is a little difficult to justify the search of a third person’s

home for gang membership information: gangs had nothing

MILLENDER v. COUNTY OF LOS ANGELES 5277

whatsoever to do with the domestic assault that is in question

here. Of course, I recognize, that the officers did not know

that they were searching a third person’s home; they thought

they were searching Bowen’s home also.

In short, courts are concerned about the burdens imposed

upon police officers in this kind of situation and are con-

strained to feel empathy for their plight. On the other hand,

courts are concerned about the plight of decent citizens like

the Millenders when governmental authorities smash their

way into a home on a quest for information regarding a per-

son who, as it turns out, does not even reside in the home.

Thus, in order to reify our concern for the officers we must

embrace the protections thrown up around them in the warrant

area with enthusiasm rather than with velleity. However, we

must also protect the sanctity of the home1 and assure that no

representative of state power simply hides behind the mis-

deeds or misdirections of other representatives, lest we

become a kakistocracy.2 On this record, the former concerns

prevail.

I, thus, concur in the majority opinion. I do so with deep

regret that with respect to the warrant the legal system failed

the Millenders, but we cannot visit the cost of that failure

upon the heads of the officers.

IKUTA, Circuit Judge, dissenting:

Jerry Bowen is not a model citizen. He is allegedly a mem-

ber of a street gang. He punched, bit, and then shot at his girl-

friend when she understandably tried to leave him.

1

See Los Angeles Police Protective League, 907 F.2d at 884.

2

See Grossman v. City of Portland, 33 F.3d 1200, 1209-10 (9th Cir.

1994).

5278 MILLENDER v. COUNTY OF LOS ANGELES

However, on October 10, 2003, Jerry Bowen’s assault on

Shelly Kelly was incontrovertibly not related to his gang

activity. Moreover, Kelly had identified the weapon used in

the crime: a black pump-gauge sawed-off shotgun with a pis-

tol grip. Indeed, Kelly even gave the police a photograph of

Bowen holding the shotgun.

Instead of seeking a warrant for the sawed-off shotgun,

Officer Messerschmidt sought a warrant for:

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.

Articles of evidence showing street gang member-

ship or affiliation with any Street Gang to include

but not limited to any reference to “Mona Park

Crips,” including writings or graffiti depicting gang

membership, activity or identity. Articles of personal

property tending to establish the identity of person in

control of the premise or premises. Any photographs

or photograph albums depicting persons, vehicles,

weapons or locations, which may appear relevant to

gang membership, or which may depict the item

being sought and or believed to be evidence in the

case being investigated on this warrant, or which

may depict evidence of criminal activity. Addition-

ally to include any gang indicia that would establish

the persons being sought in this warrant, affiliation

MILLENDER v. COUNTY OF LOS ANGELES 5279

or membership with the “Mona Park Crips” street

gang.

Two statements in Messerschmidt’s affidavit provided the

sole grounds for this extraordinarily broad warrant: (1) Bowen

was “a known Mona Park Crip gang member” and (2)

Messerschmidt “believe[d] 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 curtailment of fur-

ther crimes being committed.”

Because neither of these statements provided a “substantial

basis” for demonstrating “a fair probability that contraband or

evidence of a crime will be found in a particular place,” Illi-

nois v. Gates, 462 U.S. 213, 238 (1983), no officer of reason-

able competence could have thought this affidavit established

probable cause to search for the items listed in the warrant,

see Malley v. Briggs, 475 U.S. 335, 341 (1986) (in determin-

ing whether an officer is eligible for qualified immunity,

“[t]he question is 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”). Therefore, I would affirm the dis-

trict court’s denial of qualified immunity, and I respectfully

dissent.

I

Viewing the evidence in the light most favorable to the

Millenders (as we must when reviewing this appeal from the

denial of the officers’ motion for summary judgment based on

qualified immunity), no reasonably well-trained officer in

Messerschmidt’s position could have concluded that there

was probable cause to search for the wide variety of firearms,

firearm accessories, and gang paraphernalia listed in the

search warrant.

5280 MILLENDER v. COUNTY OF LOS ANGELES

Probable cause exists when an affidavit demonstrates a fair

probability that each of the items sought in the search warrant

is contraband or evidence of a crime. See VonderAhe v. How-

land, 508 F.2d 364, 369 (9th Cir. 1974); In re Grand Jury

Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 857 (9th Cir.

1991) (holding that “probable cause must exist to seize all the

items of a particular type described in the warrant”).

The affidavit must set forth specific facts that make the

search reasonable. A warrant may not “rest upon mere affir-

mance of suspicion or belief without disclosure of supporting

facts or circumstances.” Nathanson v. United States, 290 U.S.

41, 47 (1933); see also Gates, 462 U.S. at 239 (citing Nathan-

son with approval and stating that a “bare-bones” affidavit

comprised of mere conclusory statements is an inadequate

basis for a probable cause determination); Lee Art Theatre,

Inc. v. Virginia, 392 U.S. 636, 637 (1968) (holding that an

affidavit that merely stated the officer’s belief that movies and

books to be seized were obscene, and therefore illegal, was

insufficient to establish probable cause). Moreover, the search

warrant must be “carefully tailored to its justifications” in

order to ensure that the search “will not take on the character

of the wide-ranging exploratory searches the Framers

intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84

(1987).

II

The affidavit in this case did not allege facts making it rea-

sonable to search for the broad array of firearms and firearm-

related equipment listed in the search warrant. The affidavit

established probable cause to search for a “black sawed off

shotgun with a pistol grip” because it recounted Bowen’s

attack on Kelly with that weapon. But the affidavit did not

recite any facts indicating that the broad array of other items

sought (including “[a]ll 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

MILLENDER v. COUNTY OF LOS ANGELES 5281

ammunition”) were used in, or were evidence of, the crime

under investigation. See United States v. Rubio, 727 F.2d 786,

793 (9th Cir. 1983) (where a warrant seeks evidence relevant

to proving a criminal violation, the affidavit must establish

probable cause to believe there is a connection between the

evidence sought and a violation of the criminal statute at

issue).

The affidavit contains the conclusory statement that “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.” No reasonable

officer could think this statement is enough to support proba-

ble cause. Mere possession of firearms is not, generally

speaking, a crime, cf. District of Columbia v. Heller, 128

S. Ct. 2783, 2799 (2008), and a reasonable officer in Messer-

schmidt’s position would know that the only weapon at issue

in the case was the sawed-off shotgun depicted in the photo-

graph and specifically described by Kelly, see VonderAhe,

508 F.2d at 370 (where “the government knew exactly what

it needed and wanted” in search for particular type of record,

a warrant seeking all types of records is prohibited).

Nor did the affidavit demonstrate a fair probability that the

gang paraphernalia sought in the warrant was an instrumental-

ity or evidence of the crime under investigation. The affidavit

stated only that Bowen was “a known Mona Park Crip gang

member.” Gang paraphernalia may evidence membership in

a gang, but such membership is not itself evidence of a crime,

absent an allegation that the gang is wholly criminal or that

there is some nexus between Bowen’s criminal activity and

his membership in the gang. See Rubio, 727 F.2d at 793; see

also Warden v. Hayden, 387 U.S. 294, 307 (1967). The affi-

davit does not include such allegations. Rather, the affidavit

describes the crime as a “spousal assault,” and states that

Kelly had decided to end her dating relationship with Bowen

due to his temper, and had called the officers “to watch over

her while she gathered some of her property from her resi-

5282 MILLENDER v. COUNTY OF LOS ANGELES

dence.” Nothing in these statements demonstrates a fair prob-

ability that the gang paraphernalia described in the warrant

was evidence of a crime, and no reasonable officer could

think otherwise.

Finally, the officers here cannot shield themselves from lia-

bility by relying on the deputy district attorney’s review or the

magistrate’s approval of the warrant. “Our cases repeatedly

emphasize th[e] distinction between warrants with disputable

probable cause,” where reliance on magistrate approval is rea-

sonable, “and warrants so lacking in probable cause that no

reasonable officer would view them as valid,” where reliance

on magistrate approval is unavailing. KRL v. Estate of Moore,

512 F.3d 1184, 1190 (9th Cir. 2008). This case falls into the

latter category. Messerschmidt’s affidavit provided “a mere

affirmation of suspicion and belief without any statement of

adequate supporting facts.” Nathanson, 290 U.S. at 46. In

short, the affidavit is simply missing the facts and circum-

stances that would support a search for the array of firearms

and gang paraphernalia described in the warrant.

III

The majority reaches the contrary conclusion for several

reasons. First, the majority relies on the allegations in the affi-

davit that Bowen used a deadly weapon and had ties with a

gang. Second, the majority states that it is reasonable to infer

that Bowen “probably had a criminal record,” although the

affidavit does not say so. Maj. Op. at 5273. Third, the major-

ity notes that the warrant was limited to items that “arose out

of the officer’s particular concerns with Bowen, if not with

the specific crime under investigation.” Maj. Op. at 5274. In

essence, the majority holds that the breadth of the warrant is

justified because Bowen used a gun, was a member of a gang,

and had raised the concerns of the police.

I disagree. Officers do not get a pass from complying with

the Fourth Amendment’s warrant requirements because they

MILLENDER v. COUNTY OF LOS ANGELES 5283

are investigating an unsavory character. No matter how shady

Bowen may be, reasonable officers would know that they can-

not undertake “general, exploratory searches and indiscrimi-

nate rummaging through a person’s belongings,” United

States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986), unless

there are facts in the affidavit establishing a fair probability

that the items sought in the search warrant are contraband or

evidence of a crime.

IV

In sum, the affidavit contained only conclusory statements

rather than concrete facts and circumstances, and failed to

allege a nexus between the items sought and the criminal

activity being investigated. Because it did not include facts

demonstrating a fair probability that the items listed in the

search warrant were evidence of the crime being investigated,

“a reasonably well-trained officer in petitioner’s position

would have known that his affidavit failed to establish proba-

ble cause and that he should not have applied for the warrant.”

Malley, 475 U.S. at 345. The officers “cannot excuse [their]

own default by pointing to the greater incompetence of the

magistrate.” Id. at 346 n.9. I would affirm the district court’s

denial of qualified immunity, and I respectfully dissent.