Messerschmidt v. Millender

(Slip Opinion) OCTOBER TERM, 2011 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MESSERSCHMIDT ET AL. v. MILLENDER, EXECUTOR OF

ESTATE OF MILLENDER, DECEASED, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 10–704. Argued December 5, 2011—Decided February 22, 2012

Shelly Kelly was afraid that she would be attacked by her boyfriend,

Jerry Ray Bowen, while she moved out of her apartment. She there-

fore requested police protection. Two officers arrived, but they were

called away to an emergency. As soon as the officers left, Bowen

showed up at the apartment, yelled “I told you never to call the cops

on me bitch!” and attacked Kelly, attempting to throw her over a se-

cond-story landing. After Kelly escaped to her car, Bowen pointed a

sawed-off shotgun at her and threatened to kill her if she tried to

leave. Kelly nonetheless sped away as Bowen fired five shots at the

car, blowing out one of its tires.

Kelly later met with Detective Curt Messerschmidt to discuss the

incident. She described the attack in detail, mentioned that Bowen

had previously assaulted her, that he had ties to the Mona Park

Crips gang, and that he might be staying at the home of his former

foster mother, Augusta Millender. Following this conversation, Mes-

serschmidt conducted a detailed investigation, during which he con-

firmed Bowen’s connection to the Millenders’ home, verified his

membership in two gangs, and learned that Bowen had been arrested

and convicted for numerous violent and firearm-related offenses.

Based on this investigation, Messerschmidt drafted an application

for a warrant authorizing a search of the Millenders’ home for all

firearms and ammunition, as well as evidence indicating gang

membership.

Messerschmidt included two affidavits in the warrant application.

The first detailed his extensive law enforcement experience and his

specialized training in gang-related crimes. The second, expressly in-

corporated into the search warrant, described the incident and ex-

2 MESSERSCHMIDT v. MILLENDER

Syllabus

plained why Messerschmidt believed there was probable cause for the

search. It also requested that the warrant be endorsed for night ser-

vice because of Bowen’s gang ties. Before submitting the application

to a magistrate for approval, Messerschmidt had it reviewed by his

supervisor, Sergeant Robert Lawrence, as well as a police lieutenant

and a deputy district attorney. Messerschmidt then submitted the

application to a magistrate, who issued the warrant. The ensuing

search uncovered only Millender’s shotgun, a California Social Ser-

vices letter addressed to Bowen, and a box of .45-caliber ammunition.

The Millenders filed an action under 42 U. S. C. §1983 against pe-

titioners Messerschmidt and Lawrence, alleging that the officers had

subjected them to an unreasonable search in violation of the Fourth

Amendment. The District Court granted summary judgment to the

Millenders, concluding that the firearm and gang-material aspects of

the search warrant were overbroad and that the officers were not en-

titled to qualified immunity from damages. The Ninth Circuit, sit-

ting en banc, affirmed the denial of qualified immunity. The court

held that the warrant’s authorization was unconstitutionally over-

broad because the affidavits and warrant failed to establish probable

cause that the broad categories of firearms, firearm-related material,

and gang-related material were contraband or evidence of a crime,

and that a reasonable officer would have been aware of the warrant’s

deficiency.

Held: The officers are entitled to qualified immunity. Pp. 8−19.

(a) Qualified immunity “protects government officials ‘from liability

for civil damages insofar as their conduct does not violate clearly es-

tablished statutory or constitutional rights of which a reasonable

person would have known.’ ” Pearson v. Callahan, 555 U. S. 223, 231.

Where the alleged Fourth Amendment violation involves a search or

seizure pursuant to a warrant, the fact that a neutral magistrate has

issued a warrant is the clearest indication that the officers acted in

an objectively reasonable manner, or in “objective good faith.” United

States v. Leon, 468 U. S. 897, 922–923. Nonetheless, that fact does

not end the inquiry into objective reasonableness. The Court has rec-

ognized an exception allowing suit when “it is obvious that no rea-

sonably competent officer would have concluded that a warrant

should issue.” Malley v. Briggs, 475 U. S. 335, 341. The “shield of

immunity” otherwise conferred by the warrant, id., at 345, will be

lost, for example, where the warrant was “based on an affidavit so

lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable.” Leon, 468 U. S., at 923. The

threshold for establishing this exception is high. “[I]n the ordinary

case, an officer cannot be expected to question the magistrate’s prob-

able-cause determination” because “[i]t is the magistrate’s responsi-

Cite as: 565 U. S. ____ (2012) 3

Syllabus

bility to determine whether the officer’s allegations establish proba-

ble cause and, if so, to issue a warrant comporting in form with the

requirements of the Fourth Amendment.” Leon, supra, at 921. Pp.

8−10.

(b) This case does not fall within that narrow exception. It would

not be entirely unreasonable for an officer to believe that there was

probable cause to search for all firearms and firearm-related materi-

als. Under the circumstances set forth in the warrant, an officer

could reasonably conclude that there was a “fair probability” that the

sawed-off shotgun was not the only firearm Bowen owned, Illinois v.

Gates, 462 U. S. 213, 238, and that Bowen’s sawed-off shotgun was il-

legal. Cf. 26 U. S. C. §§ 5845(a), 5861(d). Given Bowen’s possession

of one illegal gun, his gang membership, willingness to use the gun to

kill someone, and concern about the police, it would not be unreason-

able for an officer to conclude that Bowen owned other illegal guns.

An officer also could reasonably believe that seizure of firearms was

necessary to prevent further assaults on Kelly. California law allows

a magistrate to issue a search warrant for items “in the possession of

any person with the intent to use them as a means of committing a

public offense,” Cal. Penal Code Ann. §1524(a)(3), and the warrant

application submitted by the officers specifically referenced this pro-

vision as a basis for the search. Pp. 10–12.

(c) Regarding the warrant’s authorization to search for gang-

related materials, a reasonable officer could view Bowen’s attack as

motivated not by the souring of his romantic relationship with Kelly

but by a desire to prevent her from disclosing details of his gang ac-

tivity to the police. It would therefore not be unreasonable—based on

the facts set out in the affidavit—for an officer to believe that evi-

dence of Bowen’s gang affiliation would prove helpful in prosecuting

him for the attack on Kelly, in supporting additional, related charges

against Bowen for the assault, or in impeaching Bowen or rebutting

his defenses. Moreover, even if this were merely a domestic dispute,

a reasonable officer could still conclude that gang paraphernalia

found at the Millenders’ residence could demonstrate Bowen’s control

over the premises or his connection to other evidence found there.

Pp. 12−16.

(d) The fact that the officers sought and obtained approval of the

warrant application from a superior and a deputy district attorney

before submitting it to the magistrate provides further support for

the conclusion that an officer could reasonably have believed that the

scope of the warrant was supported by probable cause. A contrary

conclusion would mean not only that Messerschmidt and Lawrence

were “plainly incompetent” in concluding that the warrant was sup-

ported by probable cause, Malley, supra, at 341, but that their super-

4 MESSERSCHMIDT v. MILLENDER

Syllabus

visor, the deputy district attorney, and the magistrate were as well.

Pp. 16−18.

(e) In holding that the warrant in this case was so obviously defec-

tive that no reasonable officer could have believed it to be valid, the

court below erred in relying on Groh v. Ramirez, 540 U. S. 551.

There, officers who carried out a warrant-approved search were not

entitled to qualified immunity because the warrant failed to describe

any of the items to be seized and “even a cursory reading of the war-

rant” would have revealed this defect. Id., at 557. Here, in contrast,

any arguable defect would have become apparent only upon a close

parsing of the warrant application, and a comparison of the support-

ing affidavit to the terms of the warrant to determine whether the af-

fidavit established probable cause to search for all the items listed in

the warrant. Unlike in Groh, any error here would not be one that

“just a simple glance” would have revealed. Id. at 564. Pp. 18−19.

620 F. 3d 1016, reversed.

ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,

KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. BREYER, J., filed a

concurring opinion. KAGAN, J., filed an opinion concurring in part and

dissenting in part. SOTOMAYOR, J., filed a dissenting opinion, in which

GINSBURG, J., joined.

Cite as: 565 U. S. ____ (2012) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–704

_________________

CURT MESSERSCHMIDT, ET AL., PETITIONERS v.

BRENDA MILLENDER, AS EXECUTOR OF THE

ESTATE OF AUGUSTA MILLENDER,

DECEASED, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[February 22, 2012]

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court.

Petitioner police officers conducted a search of respond-

ents’ home pursuant to a warrant issued by a neutral

magistrate. The warrant authorized a search for all guns

and gang-related material, in connection with the investi-

gation of a known gang member for shooting at his ex-

girlfriend with a pistol-gripped sawed-off shotgun, because

she had “call[ed] the cops” on him. App. 56. Respondents

brought an action seeking to hold the officers personally

liable under 42 U. S. C. §1983, alleging that the search

violated their Fourth Amendment rights because there

was not sufficient probable cause to believe the items

sought were evidence of a crime. In particular, respond-

ents argued that there was no basis to search for all

guns simply because the suspect owned and had used a

sawed-off shotgun, and no reason to search for gang mate-

rial because the shooting at the ex-girlfriend for “call[ing]

the cops” was solely a domestic dispute. The Court of

2 MESSERSCHMIDT v. MILLENDER

Opinion of the Court

Appeals for the Ninth Circuit held that the warrant was

invalid, and that the officers were not entitled to immu-

nity from personal liability because this invalidity was so

obvious that any reasonable officer would have recognized

it, despite the magistrate’s approval. We disagree and

reverse.

I

A

Shelly Kelly decided to break off her romantic relation-

ship with Jerry Ray Bowen and move out of her apart-

ment, to which Bowen had a key. Kelly feared an attack

from Bowen, who had previously assaulted her and had

been convicted of multiple violent felonies. She therefore

asked officers from the Los Angeles County Sheriff’s De-

partment to accompany her while she gathered her things.

Deputies from the Sheriff ’s Department came to assist

Kelly but were called away to respond to an emergency

before the move was complete.

As soon as the officers left, an enraged Bowen appeared

at the bottom of the stairs to the apartment, yelling “I told

you never to call the cops on me bitch!” App. 39, 56.

Bowen then ran up the stairs to Kelly, grabbed her by her

shirt, and tried to throw her over the railing of the second-

story landing. When Kelly successfully resisted, Bowen

bit her on the shoulder and attempted to drag her inside

the apartment by her hair. Kelly again managed to escape

Bowen’s grasp, and ran to her car. By that time, Bowen

had retrieved a black sawed-off shotgun with a pistol grip.

He ran in front of Kelly’s car, pointed the shotgun at her,

and told Kelly that if she tried to leave he would kill her.

Kelly leaned over, fully depressed the gas pedal, and sped

away. Bowen fired at the car a total of five times, blowing

out the car’s left front tire in the process, but Kelly man-

aged to escape.

Kelly quickly located police officers and reported the

Cite as: 565 U. S. ____ (2012) 3

Opinion of the Court

assault. She told the police what had happened—that

Bowen had attacked her after becoming “angry because

she had called the Sheriff’s Department”—and she men-

tioned that Bowen was “an active member of the ‘Mona

Park Crips,’ ” a local street gang. Id., at 39. Kelly also

provided the officers with photographs of Bowen.

Detective Curt Messerschmidt was assigned to investi-

gate the incident. Messerschmidt met with Kelly to obtain

details of the assault and information about Bowen. Kelly

described the attack and informed Messerschmidt that she

thought Bowen was staying at his foster mother’s home

at 2234 East 120th Street. Kelly also informed Messer-

schmidt of Bowen’s previous assaults on her and of his

gang ties.

Messerschmidt then conducted a background check on

Bowen by consulting police records, California Depart-

ment of Motor Vehicles records, and the “cal-gang” data-

base. Based on this research, Messerschmidt confirmed

Bowen’s connection to the 2234 East 120th Street address.

He also confirmed that Bowen was an “active” member of

the Mona Park Crips and a “secondary” member of the

Dodge City Crips. Id., at 64. Finally, Messerschmidt

learned that Bowen had been arrested and convicted for

numerous violent and firearm-related offenses. Indeed, at

the time of the investigation, Bowen’s “rapsheet” spanned

over 17 printed pages, and indicated that he had been

arrested at least 31 times. Nine of these arrests were for

firearms offenses and six were for violent crimes, includ-

ing three arrests for assault with a deadly weapon (fire-

arm). Id., at 72–81.

Messerschmidt prepared two warrants: one to authorize

Bowen’s arrest and one to authorize the search of 2234

East 120th Street. An attachment to the search warrant

described the property that would be the object of the

search:

4 MESSERSCHMIDT v. MILLENDER

Opinion of the Court

“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 [sic]

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 cham-

bered to fire any caliber ammunition.

“Articles of evidence showing street gang membership

or affiliation with any Street Gang to include but not

limited to any reference to ‘Mona Park Crips’, includ-

ing writings or graffiti depicting gang membership,

activity or identity. Articles of personal property

tending to establish the identity of person [sic] in con-

trol of the premise or premises. Any photographs or

photograph albums depicting persons, vehicles, weap-

ons 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 ev-

idence of criminal activity. Additionally to include

any gang indicia that would establish the persons be-

ing sought in this warrant, affiliation or membership

with the ‘Mona Park Crips’ street gang.” Id., at 52.

Two affidavits accompanied Messerschmidt’s warrant ap-

plications. The first affidavit described Messerschmidt’s

extensive law enforcement experience, including that he

had served as a peace officer for 14 years, that he was

then assigned to a “specialized unit” “investigating gang

related crimes and arresting gang members for various

violations of the law,” that he had been involved in “hun-

Cite as: 565 U. S. ____ (2012) 5

Opinion of the Court

dreds of gang related incidents, contacts, and or arrests”

during his time on the force, and that he had “received

specialized training in the field of gang related crimes”

and training in “gang related shootings.” Id., at 53–54.

The second affidavit—expressly incorporated into the

search warrant—explained why Messerschmidt believed

there was sufficient probable cause to support the war-

rant. That affidavit described the facts of the incident

involving Kelly and Bowen in great detail, including the

weapon used in the assault. The affidavit recounted that

Kelly had identified Bowen as the assailant and that she

thought Bowen might be found at 2234 East 120th Street.

It also reported that Messerschmidt had “conducted an

extensive background search on the suspect by utilizing

departmental records, state computer records, and other

police agency records,” and that from that information he

had concluded that Bowen resided at 2234 East 120th

Street. Id., at 58.

The affidavit requested that the search warrant be

endorsed for night service because “information provided

by the victim and the cal-gang data base” indicated that

Bowen had “gang ties to the Mona Park Crip gang” and

that “night service would provide an added element of

safety to the community as well as for the deputy person-

nel serving the warrant.” Id., at 59. The affidavit con-

cluded by noting that Messerschmidt “believe[d] that the

items sought” would be in Bowen’s possession and that

“recovery of the weapon could be invaluable in the success-

ful prosecution of the suspect involved in this case, and

the curtailment of further crimes being committed.” Ibid.

Messerschmidt submitted the warrants to his super-

visors—Sergeant Lawrence and Lieutenant Ornales—for

review. Deputy District Attorney Janet Wilson also re-

viewed the materials and initialed the search warrant,

indicating that she agreed with Messerschmidt’s assess-

ment of probable cause. Id., at 27, 47. Finally, Messer-

6 MESSERSCHMIDT v. MILLENDER

Opinion of the Court

schmidt submitted the warrants to a magistrate. The

magistrate approved the warrants and authorized night

service.

The search warrant was served two days later by a team

of officers that included Messerschmidt and Lawrence.

Sheriff’s deputies forced open the front door of 2234 East

120th Street and encountered Augusta Millender—a

woman in her seventies—and Millender’s daughter and

grandson. As instructed by the police, the Millenders

went outside while the residence was secured but re-

mained in the living room while the search was conducted.

Bowen was not found in the residence. The search did,

however, result in the seizure of Augusta Millender’s

shotgun, a California Social Services letter addressed to

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

Bowen was arrested two weeks later after Messer-

schmidt found him hiding under a bed in a motel room.

B

The Millenders filed suit in Federal District Court

against the County of Los Angeles, the sheriff ’s depart-

ment, the sheriff, and a number of individual officers,

including Messerschmidt and Lawrence. The complaint

alleged, as relevant here, that the search warrant was

invalid under the Fourth Amendment. It sought damages

from Messerschmidt and Lawrence, among others.

The parties filed cross motions for summary judgment

on the validity of the search warrant. The District Court

found the warrant defective in two respects. The District

Court concluded that the warrant’s authorization to

search for firearms was unconstitutionally overbroad

because the “crime specified here was a physical assault

with a very specific weapon”—a black sawed-off shotgun

with a pistol grip—negating any need to “search for all

firearms.” Millender v. County of Los Angeles, Civ. No.

05–2298 (CD Cal., Mar. 15, 2007), App. to Pet. for Cert.

Cite as: 565 U. S. ____ (2012) 7

Opinion of the Court

106, 157, 2007 WL 7589200, *21. The court also found

the warrant overbroad with respect to the search for gang-

related materials, because there “was no evidence that the

crime at issue was gang-related.” App. to Pet. for Cert.

157. As a result, the District Court granted summary

judgment to the Millenders on their constitutional chal-

lenges to the firearm and gang material aspects of the

search warrant. Id., at 160. The District Court also re-

jected the officers’ claim that they were entitled to quali-

fied immunity from damages. Id., at 171.

Messerschmidt and Lawrence appealed, and a divided

panel of the Court of Appeals for the Ninth Circuit re-

versed the District Court’s denial of qualified immunity.

564 F. 3d 1143 (2009). The court held that the officers

were entitled to qualified immunity because “they reason-

ably relied on the approval of the warrant by a deputy

district attorney and a judge.” Id., at 1145.

The Court of Appeals granted rehearing en banc and

affirmed the District Court’s denial of qualified immunity.

620 F. 3d 1016 (CA9 2010). The en banc court concluded

that the warrant’s authorization was unconstitutionally

overbroad because the affidavit and the warrant failed to

“establish[ ] 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.” Id., at 1033. In the en banc court’s

view, “the deputies had probable cause to search for a

single, identified weapon . . . . They had no probable cause

to search for the broad class of firearms and firearm-

related materials described in the warrant.” Id., at 1027.

In addition, “[b]ecause 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 [was] likewise invalid.” Id., at 1031.

Concluding that “a reasonable officer in the deputies’

position would have been well aware of this deficiency,”

8 MESSERSCHMIDT v. MILLENDER

Opinion of the Court

the en banc court held that the officers were not entitled to

qualified immunity. Id., at 1033–1035.

There were two separate dissenting opinions. Judge

Callahan determined that “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.”

Id., at 1036. She also concluded that “the officers reason-

ably relied on their superiors, the district attorney, and

the magistrate to correct” any overbreadth in the warrant,

and that the officers were entitled to qualified immunity

because their actions were not objectively unreasonable.

Id., at 1044, 1049. Judge Silverman also dissented, con-

cluding that the “deputies’ belief in the validity of . . . the

warrant was entirely reasonable” and that the “record

[wa]s totally devoid of any evidence that the deputies

acted other than in good faith.” Id., at 1050. Judge Tall-

man joined both dissents.

We granted certiorari. 564 U. S. ___ (2011).

II

The Millenders allege that they were subjected to an

unreasonable search in violation of the Fourth Amend-

ment because the warrant authorizing the search of their

home was not supported by probable cause. They seek

damages from Messerschmidt and Lawrence for their roles

in obtaining and executing this warrant. The validity of

the warrant is not before us. The question instead is

whether Messerschmidt and Lawrence are entitled to im-

munity from damages, even assuming that the warrant

should not have been issued.

“The doctrine of qualified immunity protects govern-

ment officials ‘from liability for civil damages insofar as

their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person

would have known.’ ” Pearson v. Callahan, 555 U. S. 223,

231 (2009) (quoting Harlow v. Fitzgerald, 457 U. S. 800,

Cite as: 565 U. S. ____ (2012) 9

Opinion of the Court

818 (1982)). Qualified immunity “gives government offi-

cials breathing room to make reasonable but mistaken

judgments,” and “protects ‘all but the plainly incompetent

or those who knowingly violate the law.’ ” Ashcroft v. al-

Kidd, 563 U. S. ___, ___ (2011) (slip op., at 12) (quoting

Malley v. Briggs, 475 U. S. 335, 341 (1986)). “[W]hether

an official protected by qualified immunity may be held

personally liable for an allegedly unlawful official action

generally turns on the ‘objective legal reasonableness’ of

the action, assessed in light of the legal rules that were

‘clearly established’ at the time it was taken.” Anderson v.

Creighton, 483 U. S. 635, 639 (1987) (citation omitted).

Where the alleged Fourth Amendment violation involves

a search or seizure pursuant to a warrant, the fact that a

neutral magistrate has issued a warrant is the clearest

indication that the officers acted in an objectively reason-

able manner or, as we have sometimes put it, in “objective

good faith.” United States v. Leon, 468 U. S. 897, 922–923

(1984).1 Nonetheless, under our precedents, the fact that

a neutral magistrate has issued a warrant authorizing the

allegedly unconstitutional search or seizure does not end

the inquiry into objective reasonableness. Rather, we

have recognized an exception allowing suit when “it is

obvious that no reasonably competent officer would have

concluded that a warrant should issue.” Malley, 475 U. S.,

at 341. The “shield of immunity” otherwise conferred by

the warrant, id., at 345, will be lost, for example, where

the warrant was “based on an affidavit so lacking in indi-

cia of probable cause as to render official belief in its exist-

——————

1 Although Leon involved the proper application of the exclusionary

rule to remedy a Fourth Amendment violation, we have held that “the

same standard of objective reasonableness that we applied in the con-

text of a suppression hearing in Leon defines the qualified immun-

ity accorded an officer” who obtained or relied on an allegedly invalid

warrant. Malley v. Briggs, 475 U. S. 335, 344 (1986) (citation omitted);

Groh v. Ramirez, 540 U. S. 551, 565, n. 8 (2004).

10 MESSERSCHMIDT v. MILLENDER

Opinion of the Court

ence entirely unreasonable.” Leon, 468 U. S., at 923 (in-

ternal quotation marks omitted).2

Our precedents make clear, however, that the threshold

for establishing this exception is a high one, and it should

be. As we explained in Leon, “[i]n the ordinary case, an

officer cannot be expected to question the magistrate’s

probable-cause determination” because “[i]t is the magis-

trate’s responsibility to determine whether the officer’s

allegations establish probable cause and, if so, to issue a

warrant comporting in form with the requirements of the

Fourth Amendment.” Id., at 921; see also Malley, supra,

at 346, n. 9 (“It is a sound presumption that the magis-

trate is more qualified than the police officer to make a

probable cause determination, and it goes without saying

that where a magistrate acts mistakenly in issuing a

warrant but within the range of professional competence

of a magistrate, the officer who requested the warrant

cannot be held liable” (internal quotation marks and

citation omitted)).

III

The Millenders contend, and the Court of Appeals held,

that their case falls into this narrow exception. According

to the Millenders, the officers “failed to provide any facts

or circumstances from which a magistrate could properly

conclude that there was probable cause to seize the broad

classes of items being sought,” and “[n]o reasonable officer

——————

2 The dissent relies almost entirely on facts outside the affidavit,

including Messerschmidt’s deposition testimony, post, at 4, 11 (opinion

of SOTOMAYOR, J.), crime analysis forms, post, at 5, Kelly’s interview,

post, at 5–6, and n. 5, Messerschmidt’s notes regarding Kelly’s inter-

view, post, at 5–6, n. 5, and even several briefs filed in the District

Court and the Court of Appeals, post, at 8–9, 12. In contrast, the

dissent cites the probable cause affidavit itself only twice. See post, at

12. There is no contention before us that the affidavit was misleading

in omitting any of the facts on which the dissent relies. Cf. Leon, 468

U. S., at 923.

Cite as: 565 U. S. ____ (2012) 11

Opinion of the Court

would have presumed that such a warrant was valid.”

Brief for Respondents 27. We disagree.

A

With respect to the warrant’s authorization to search for

and seize all firearms, the Millenders argue that “a rea-

sonably well-trained officer would have readily perceived

that there was no probable cause to search the house for

all firearms and firearm-related items.” Id., at 32. Noting

that “the affidavit indicated exactly what item was evi-

dence of a crime—the ‘black sawed off shotgun with a

pistol grip,’ ” they argue that “[n]o facts established that

Bowen possessed any other firearms, let alone that such

firearms (if they existed) were ‘contraband or evidence of a

crime.’ ” Ibid. (quoting App. 56).

Even if the scope of the warrant were overbroad in

authorizing a search for all guns when there was infor-

mation only about a specific one, that specific one was a

sawed-off shotgun with a pistol grip, owned by a known

gang member, who had just fired the weapon five times in

public in an attempt to murder another person, on the

asserted ground that she had “call[ed] the cops” on him.

Id., at 56. Under these circumstances—set forth in the

warrant—it would not have been unreasonable for an

officer to conclude that there was a “fair probability” that

the sawed-off shotgun was not the only firearm Bowen

owned. Illinois v. Gates, 462 U. S. 213, 238 (1983). And

it certainly would have been reasonable for an officer to

assume that Bowen’s sawed-off shotgun was illegal. Cf. 26

U. S. C. §§5845(a), 5861(d). Evidence of one crime is not

always evidence of several, but given Bowen’s possession

of one illegal gun, his gang membership, his willingness

to use the gun to kill someone, and his concern about

the police, a reasonable officer could conclude that there

would be additional illegal guns among others that Bowen

12 MESSERSCHMIDT v. MILLENDER

Opinion of the Court

owned.3

A reasonable officer also could believe that seizure of the

firearms was necessary to prevent further assaults on

Kelly. California law allows a magistrate to issue a search

warrant for items “in the possession of any person with

the intent to use them as a means of committing a public

offense,” Cal. Penal Code Ann. §1524(a)(3) (West 2011),

and the warrant application submitted by the officers

specifically referenced this provision as a basis for the

search. App. 48. Bowen had already attempted to murder

Kelly once with a firearm, and had yelled “I’ll kill you” as

she tried to escape from him. Id., at 56–57. A reasonable

officer could conclude that Bowen would make another

attempt on Kelly’s life and that he possessed other fire-

arms “with the intent to use them” to that end. Cal. Penal

Code Ann. §1524(a)(3).

Given the foregoing, it would not have been “entirely

unreasonable” for an officer to believe, in the particular

circumstances of this case, that there was probable cause

to search for all firearms and firearm-related materials.

Leon, supra, at 923 (internal quotation marks omitted).

With respect to the warrant’s authorization to search for

evidence of gang membership, the Millenders contend that

“no reasonable officer could have believed that the affida-

vit presented to the magistrate contained a sufficient basis

to conclude that the gang paraphernalia sought was con-

traband or evidence of a crime.” Brief for Respondents 28.

They argue that “the magistrate [could not] have reasona-

bly concluded, based on the affidavit, that Bowen’s gang

membership had anything to do with the crime under

investigation” because “[t]he affidavit described a ‘spousal

——————

3 The dissent caricatures our analysis as being that “because Bowen

fired one firearm, it was reasonable for the police to conclude . . . that

[he] must have possessed others,” post, at 10 (opinion of SOTOMAYOR,

J.). This simply avoids coming to grips with the facts of the crime at

issue.

Cite as: 565 U. S. ____ (2012) 13

Opinion of the Court

assault’ that ensued after Kelly decided to end her ‘on

going dating relationship’ with Bowen” and “[n]othing in

that description suggests that the crime was gang-

related.” Ibid. (quoting App. 55).

This effort to characterize the case solely as a domes-

tic dispute, however, is misleading. Cf. post, at 5

(SOTOMAYOR, J., dissenting); post, at 2 (KAGAN, J., concur-

ring in part and dissenting in part). Messerschmidt began

his affidavit in support of the warrant by explaining that

he “has been investigating an assault with a deadly weap-

on incident” and elaborated that the crime was a “spousal

assault and an assault with a deadly weapon.” App. 55

(emphasis added). The affidavit also stated that Bowen

was “a known Mona Park Crip gang member” “based on

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

base,”4 and that he had attempted to murder Kelly after

becoming enraged that she had “call[ed] the cops on

[him].” Id., at 56, 58–59. A reasonable officer could cer-

tainly view Bowen’s attack as motivated not by the sour-

ing of his romantic relationship with Kelly but instead by

a desire to prevent her from disclosing details of his gang

activity to the police. She was, after all, no longer linked

with him as a girlfriend; he had assaulted her in the past;

and she had indeed called the cops on him. And, as the

affidavit supporting the warrant made clear, Kelly had in

fact given the police information about Bowen’s gang ties.

Id., at 59.5

——————

4 Although the cal-gang database states that information contained

therein cannot be used to establish probable cause, see App. 64, the

affidavit makes clear that Kelly also provided this information to

Messerschmidt, id., at 59, as she did to the deputies who initially

responded to the attack, id., at 39 (describing Kelly’s statement that

Bowen was “an active member of the ‘Mona Park Crips’ ”). We there-

fore need not decide whether the cal-gang database’s disclaimer is

relevant to Fourth Amendment analysis.

5 Contrary to the dissent’s suggestion, see post, at 5–6, n. 5 (opinion

of SOTOMAYOR, J.), the affidavit’s account of Bowen’s statements is

14 MESSERSCHMIDT v. MILLENDER

Opinion of the Court

It would therefore not have been unreasonable—based

on the facts set out in the affidavit—for an officer to be-

lieve that evidence regarding Bowen’s gang affiliation

would prove helpful in prosecuting him for the attack on

Kelly. See Warden, Md. Penitentiary v. Hayden, 387 U. S.

294, 307 (1967) (holding that the Fourth Amendment

allows a search for evidence when there is “probable cause

. . . to believe that the evidence sought will aid in a partic-

ular apprehension or conviction”). Not only would such

evidence help to establish motive, either apart from or in

addition to any domestic dispute, it would also support the

bringing of additional, related charges against Bowen for

the assault. See, e.g., Cal. Penal Code Ann. §136.1(b)(1)

(West 1999) (It is a crime to “attempt[ ] to prevent or

dissuade another person who has been the victim of a

crime or who is witness to a crime from . . . [m]aking any

report of that victimization to any . . . law enforcement

officer”).6

——————

consistent with other accounts of the confrontation, in particular the

report prepared by the officers who spoke with Kelly immediately after

the attack. See App. 39 (stating that when Bowen “appeared at the

base of the stairs and began yelling at [Kelly,] [h]e was angry because

she had called the Sheriff ’s Department”). And at no point during this

litigation has the accuracy of the affidavit’s account of the attack been

called into question.

6 The dissent relies heavily on Messerschmidt’s deposition, in which

he stated that Bowen’s crime was not a “gang crime.” See post, at 4–7.

Messerschmidt’s belief about the nature of the crime, however, is not

information he possessed but a conclusion he reached based on infor-

mation known to him. See Anderson v. Creighton, 483 U. S. 635, 641

(1987). We have “eschew[ed] inquiries into the subjective beliefs of law

enforcement officers who seize evidence pursuant to a subsequently

invalidated warrant.” United States v. Leon, 468 U. S. 897, 922, n. 23

(1984); see also Harlow v. Fitzgerald, 457 U. S. 800, 815–819 (1982). In

any event, as the dissent recognizes, the inquiry under our precedents

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

would have known that his affidavit failed to establish probable cause.”

Malley, 475 U. S., at 345 (emphasis added). Messerschmidt’s own

evaluation does not answer the question whether it would have been

Cite as: 565 U. S. ____ (2012) 15

Opinion of the Court

In addition, a reasonable officer could believe that evi-

dence demonstrating Bowen’s membership in a gang

might prove helpful in impeaching Bowen or rebutting

various defenses he could raise at trial. For example,

evidence that Bowen had ties to a gang that uses guns

such as the one he used to assault Kelly would certainly be

relevant to establish that he had familiarity with or access

to this type of weapon.

Moreover, even if this were merely a domestic dispute, a

reasonable officer could still conclude that gang parapher-

nalia found at the Millenders’ residence would aid in

the prosecution of Bowen by, for example, demonstrating

Bowen’s connection to other evidence found there. The

warrant authorized a search for “any gang indicia that

would establish the persons being sought in this warrant,”

and “[a]rticles of personal property tending to establish

the identity of [the] person in control of the premise or

premises.” App. 52. Before the District Court, the Millen-

ders “acknowledge[d] that evidence of who controlled the

premises would be relevant if incriminating evidence were

found and it became necessary to tie that evidence to a

person, ” and the District Court approved that aspect of

the warrant on this basis. App. to Pet. for Cert. 158–159

(internal quotation marks omitted). Given Bowen’s known

gang affiliation, a reasonable officer could conclude that

gang paraphernalia found at the residence would be an

effective means of demonstrating Bowen’s control over the

premises or his connection to evidence found there.7

——————

unreasonable for an officer to have reached a different conclusion from

the facts in the affidavit. See n. 2, supra.

7 The Fourth Amendment does not require probable cause to believe

evidence will conclusively establish a fact before permitting a search,

but only “probable cause . . . to believe the evidence sought will aid in a

particular apprehension or conviction.” Warden, Md. Penitentiary v.

Hayden, 387 U. S. 294, 307 (1967) (emphasis added). Even if gang

evidence might have turned out not to be conclusive because other

16 MESSERSCHMIDT v. MILLENDER

Opinion of the Court

Whatever the use to which evidence of Bowen’s gang

involvement might ultimately have been put, it would not

have been “entirely unreasonable” for an officer to believe

that the facts set out in the affidavit established a fair

probability that such evidence would aid the prosecution

of Bowen for the criminal acts at issue. Leon, 468 U. S., at

923 (internal quotation marks omitted).

B

Whether any of these facts, standing alone or taken

together, actually establish probable cause is a question

we need not decide. Qualified immunity “gives govern-

ment officials breathing room to make reasonable but

mistaken judgments.” al-Kidd, 563 U. S., at ___ (slip op.,

at 12). The officers’ judgment that the scope of the war-

rant was supported by probable cause may have been

mistaken, but it was not “plainly incompetent.” Malley,

475 U. S., at 341.

On top of all this, the fact that the officers sought and

obtained approval of the warrant application from a supe-

rior and a deputy district attorney before submitting it to

the magistrate provides further support for the conclusion

that an officer could reasonably have believed that the

scope of the warrant was supported by probable cause.

Ibid. Before seeking to have the warrant issued by a

magistrate, Messerschmidt conducted an extensive inves-

tigation into Bowen’s background and the facts of the

crime. Based on this investigation, Messerschmidt pre-

pared a detailed warrant application that truthfully laid

——————

members of the Millender household also had gang ties, see post, at 8

(opinion of SOTOMAYOR, J.); post, at 2–3 (opinion of KAGAN, J.), a rea-

sonable officer could still conclude that evidence of gang membership

would help show Bowen’s connection to the residence. Such evidence

could, for example, have displayed Bowen’s gang moniker (“C Jay”)

or could have been identified by Kelly as belonging to Bowen. See

App. 64.

Cite as: 565 U. S. ____ (2012) 17

Opinion of the Court

out the pertinent facts. The only facts omitted—the offi-

cers’ knowledge of Bowen’s arrest and conviction records,

see supra, at 3—would only have strengthened the war-

rant. Messerschmidt then submitted the warrant applica-

tion for review by Lawrence, another superior officer, and

a deputy district attorney, all of whom approved the appli-

cation without any apparent misgivings. Only after this

did Messerschmidt seek the approval of a neutral magis-

trate, who issued the requested warrant. The officers thus

“took every step that could reasonably be expected of

them.” Massachusetts v. Sheppard, 468 U. S. 981, 989

(1984). In light of the foregoing, it cannot be said that “no

officer of reasonable competence would have requested the

warrant.” Malley, 475 U. S., at 346, n. 9. Indeed, a con-

trary conclusion would mean not only that Messerschmidt

and Lawrence were “plainly incompetent,” id., at 341, but

that their supervisor, the deputy district attorney, and the

magistrate were as well.

The Court of Appeals, however, gave no weight to the

fact that the warrant had been reviewed and approved

by the officers’ superiors, a deputy district attorney, and a

neutral magistrate. Relying on Malley, the court held that

the officers had an “independent responsibility to ensure

there [was] at least a colorable argument for probable

cause.” 620 F. 3d, at 1034. It explained that “[t]he depu-

ties here had a responsibility to exercise their reasonable

professional judgment,” and that “in circumstances such

as these a neutral magistrate’s approval (and, a fortiori,

a non-neutral prosecutor’s) cannot absolve an officer of

liability.” Ibid. (citation omitted).

We rejected in Malley the contention that an officer is

automatically entitled to qualified immunity for seeking a

warrant unsupported by probable cause, simply because

a magistrate had approved the application. 475 U. S., at

345. And because the officers’ superior and the deputy

district attorney are part of the prosecution team, their

18 MESSERSCHMIDT v. MILLENDER

Opinion of the Court

review also cannot be regarded as dispositive. But by

holding in Malley that a magistrate’s approval does not

automatically render an officer’s conduct reasonable, we

did not suggest that approval by a magistrate or review

by others is irrelevant to the objective reasonableness of

the officers’ determination that the warrant was valid.

Indeed, we expressly noted that we were not deciding

“whether [the officer’s] conduct in [that] case was in fact

objectively reasonable.” Id., at 345, n. 8. The fact that the

officers secured these approvals is certainly pertinent in

assessing whether they could have held a reasonable belief

that the warrant was supported by probable cause.

C

In holding that the warrant in this case was so obvious-

ly defective that no reasonable officer could have believed

it was valid, the court below relied heavily on our decision

in Groh v. Ramirez, 540 U. S. 551 (2004), but that prece-

dent is far afield. There, we held that officers who carried

out a warrant-approved search were not entitled to quali-

fied immunity because the warrant in question failed to

describe the items to be seized at all. Id., at 557. We

explained that “[i]n the portion of the form that called for

a description of the ‘person or property’ to be seized, [the

applicant] typed a description of [the target’s] two-story

blue house rather than the alleged stockpile of firearms.”

Id., at 554. Thus, the warrant stated nonsensically that

“ ‘there is now concealed [on the specified premises] a

certain person or property, namely [a] single dwelling

residence two story in height which is blue in color and

has two additions attached to the east.’ ” Id., at 554–555,

n. 2 (bracketed material in original). Because “even a

cursory reading of the warrant in [that] case—perhaps

just a simple glance—would have revealed a glaring de-

ficiency that any reasonable police officer would have

known was constitutionally fatal,” id., at 564, we held that

Cite as: 565 U. S. ____ (2012) 19

Opinion of the Court

the officer was not entitled to qualified immunity.

The instant case is not remotely similar. In contrast to

Groh, any defect here would not have been obvious from

the face of the warrant. Rather, any arguable defect

would have become apparent only upon a close parsing of

the warrant application, and a comparison of the affidavit

to the terms of the warrant to determine whether the

affidavit established probable cause to search for all the

items listed in the warrant. This is not an error that

“just a simple glance” would have revealed. Ibid. Indeed,

unlike in Groh, the officers here did not merely submit

their application to a magistrate. They also presented it

for review by a superior officer, and a deputy district

attorney, before submitting it to the magistrate. The fact

that none of the officials who reviewed the application

expressed concern about its validity demonstrates that

any error was not obvious. Groh plainly does not control

the result here.

* * *

The question in this case is not whether the magistrate

erred in believing there was sufficient probable cause to

support the scope of the warrant he issued. It is instead

whether the magistrate so obviously erred that any rea-

sonable officer would have recognized the error. The

occasions on which this standard will be met may be rare,

but so too are the circumstances in which it will be appro-

priate to impose personal liability on a lay officer in the

face of judicial approval of his actions. Even if the war-

rant in this case were invalid, it was not so obviously

lacking in probable cause that the officers can be con-

sidered “plainly incompetent” for concluding otherwise.

Malley, supra, at 341. The judgment of the Court of Ap-

peals denying the officers qualified immunity must there-

fore be reversed.

It is so ordered.

Cite as: 565 U. S. ____ (2012) 1

BREYER, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–704

_________________

CURT MESSERSCHMIDT, ET AL., PETITIONERS v.

BRENDA MILLENDER, AS EXECUTOR OF THE

ESTATE OF AUGUSTA MILLENDER,

DECEASED, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[February 22, 2012]

JUSTICE BREYER, concurring.

The Court concludes that the officers acted reasonably

in searching the house for “ ‘all firearms and firearm-

related items.’ ” Ante, at 11–12 (emphasis deleted). In

support of this conclusion, it cites two sets of circum-

stances. First, the majority points to “Bowen’s possession

of one illegal gun, his gang membership, his willingness to

use the gun to kill someone, and his concern about the

police . . . .” Ante, at 11. Second, the majority notes that

“[a] reasonable officer also could believe that seizure of the

firearms was necessary to prevent further assaults on

Kelly,” because “Bowen had already attempted to murder

Kelly once with a firearm, and had yelled ‘I’ll kill you’ as

she tried to escape from him.” Ante, at 12. In my view,

given all these circumstances together, the officers could

reasonably have believed that the scope of their search

was supported by probable cause. On that basis, I concur.

Cite as: 565 U. S. ____ (2012) 1

Opinion of KAGAN, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–704

_________________

CURT MESSERSCHMIDT, ET AL., PETITIONERS v.

BRENDA MILLENDER, AS EXECUTOR OF THE

ESTATE OF AUGUSTA MILLENDER,

DECEASED, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[February 22, 2012]

JUSTICE KAGAN, concurring in part and dissenting in

part.

Both the Court and the dissent view this case as an

all-or-nothing affair: The Court awards immunity across

the board to Messerschmidt and his colleagues, while the

dissent would grant them none at all. I think the right

answer lies in between, although the Court makes the

more far-reaching error.

I agree with the Court that a reasonably competent

police officer could have thought this warrant valid in

authorizing a search for all firearms and related items.

See ante, at 11–12. The warrant application recounted

that a known gang member had used a sawed-off shot-

gun—an illegal weapon under California law, see Cal.

Penal Code Ann. §33215 (West 2012 Cum. Supp.)—to try

to kill another person. See App. 56–57, 59. Perhaps gang

ties plus possession of an unlawful gun plus use of that

gun to commit a violent assault do not add up to what was

needed for this search: probable cause to believe that

Bowen had additional illegal firearms (or legal firearms

that he intended to use to violate the law) at the place he

was staying. But because our and the Ninth Circuit’s

decisions leave that conclusion debatable, a reasonable

2 MESSERSCHMIDT v. MILLENDER

Opinion of KAGAN, J.

police officer could have found the warrant adequately

supported by “indicia of probable cause.” Malley v. Briggs,

475 U. S. 335, 345 (1986). So Messerschmidt and his

fellow officers should receive qualified immunity for their

search for firearms.

The Court, however, goes astray when it holds that a

reasonable officer could have thought the warrant valid in

approving a search for evidence of “street gang member-

ship,” App. 52. Membership in even the worst gang does

not violate California law, so the officers could not search

for gang paraphernalia just to establish Bowen’s ties to

the Crips. Instead, the police needed probable cause to

believe that such items would provide evidence of an

actual crime—and as the Court acknowledges, see ante, at

12–14, the only crime mentioned in the warrant applica-

tion was the assault on Kelly. The problem for the Court

is that nothing in the application supports a link between

Bowen’s gang membership and that shooting. Contra the

Court’s elaborate theory-spinning, see ante, at 12–16,

Messerschmidt’s affidavit in fact characterized the violent

assault only as a domestic dispute, not as a gang-related

one, see App. 55 (describing the crime as a “spousal as-

sault and an assault with a deadly weapon”). And that

description is consistent with the most natural under-

standing of the events. The warrant application thus had

a hole at its very center: It lacked any explanation of how

gang items would (or even might) provide evidence of the

domestic assault the police were investigating.

To fill this vacuum, the Court proposes an alternative,

but similarly inadequate justification—that gang para-

phernalia could have demonstrated Bowen’s connection to

the Millender residence and to any evidence of the assault

found there. The dissent rightly notes one difficulty with

this argument: The discovery of gang items would not

have established that Bowen was staying at the house,

given that several other gang members regularly did so.

Cite as: 565 U. S. ____ (2012) 3

Opinion of KAGAN, J.

See post, at 8–9 (opinion of SOTOMAYOR, J.). And even

setting that issue aside, the Court’s reasoning proves far

too much: It would sanction equally well a search for any

of Bowen’s possessions on the premises—a result impos-

sible to square with the Fourth Amendment. See, e.g.,

Andresen v. Maryland, 427 U. S. 463, 480 (1976) (disap-

proving “ ‘a general, exploratory rummaging in a person’s

belongings’ ” (quoting Coolidge v. New Hampshire, 403

U. S. 443, 467 (1971))). In authorizing a search for all

gang-related items, the warrant far outstripped the offic-

ers’ probable cause. Because a reasonable officer would

have recognized that defect, I would not award qualified

immunity to Messerschmidt and his colleagues for this

aspect of their search.

Still more fundamentally, the Court errs in scolding the

Court of Appeals for failing to give “weight to the fact that

the warrant had been reviewed and approved by the offic-

ers’ superiors, a deputy district attorney, and a neutral

magistrate.” Ante, at 17. As the dissent points out,

see post, at 13–15, this Court’s holding in Malley is to

the opposite effect: An officer is not “entitled to rely on the

judgment of a judicial officer in finding that probable

cause exists and hence issuing the warrant.” 475 U. S., at

345. Malley made clear that qualified immunity turned

on the officer’s own “professional judgment,” considered

separately from the mistake of the magistrate. Id., at 346;

see ibid., n. 9 (“The officer . . . cannot excuse his own

default by pointing to the greater incompetence of the

magistrate”); id., at 350 (Powell, J., concurring in part and

dissenting in part) (objecting to the Court’s decision to

“give little evidentiary weight to the finding of probable

cause by a magistrate”). And what we said in Malley

about a magistrate’s authorization applies still more

strongly to the approval of other police officers or state

attorneys. All those individuals, as the Court puts it, are

“part of the prosecution team.” Ante, at 18. To make their

4 MESSERSCHMIDT v. MILLENDER

Opinion of KAGAN, J.

views relevant is to enable those teammates (whether

acting in good or bad faith) to confer immunity on each

other for unreasonable conduct—like applying for a war-

rant without anything resembling probable cause.

For these reasons, I would reverse in part and affirm in

part the judgment of the Court of Appeals, and I would

remand this case for further proceedings.

Cite as: 565 U. S. ____ (2012) 1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–704

_________________

CURT MESSERSCHMIDT, ET AL., PETITIONERS v.

BRENDA MILLENDER, AS EXECUTOR OF THE

ESTATE OF AUGUSTA MILLENDER,

DECEASED, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[February 22, 2012]

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG

joins, dissenting.

The fundamental purpose of the Fourth Amendment’s

warrant clause is “to protect against all general searches.”

Go-Bart Importing Co. v. United States, 282 U. S. 344, 357

(1931). The Fourth Amendment was adopted specifically

in response to the Crown’s practice of using general war-

rants and writs of assistance to search “suspected places”

for evidence of smuggling, libel, or other crimes. Boyd v.

United States, 116 U. S. 616, 625–626 (1886). Early patri-

ots railed against these practices as “the worst instrument

of arbitrary power” and John Adams later claimed that

“the child Independence was born” from colonists’ opposi-

tion to their use. Id., at 625 (internal quotation marks

omitted).

To prevent the issue of general warrants on “loose,

vague or doubtful bases of fact,” Go-Bart Importing Co.,

282 U. S., at 357, the Framers established the inviolable

principle that should resolve this case: “no Warrants shall

issue, but upon probable cause . . . and particularly de-

scribing the . . . things to be seized.” U. S. Const., Amdt. 4.

That is, the police must articulate an adequate reason to

search for specific items related to specific crimes.

2 MESSERSCHMIDT v. MILLENDER

SOTOMAYOR, J., dissenting

In this case, police officers investigating a specific, non-

gang-related assault committed with a specific firearm (a

sawed-off shotgun) obtained a warrant to search for all

evidence related to “any Street Gang,” “[a]ny photographs

. . . which may depict evidence of criminal activity,” and

“any firearms.” App. 52. They did so for the asserted

reason that the search might lead to evidence related to

other gang members and other criminal activity, and that

other “[v]alid warrants commonly allow police to search

for ‘firearms and ammunition.’ ” See infra, at 8–9. That

kind of general warrant is antithetical to the Fourth

Amendment.

The Court nonetheless concludes that the officers are

entitled to qualified immunity because their conduct was

“objectively reasonable.” I could not disagree more. All

13 federal judges who previously considered this case

had little difficulty concluding that the police officers’

search for any gang-related material violated the Fourth

Amendment. See App. to Pet. for Cert. 28–29, 45, n. 7,

73, 94, 157–158. And a substantial majority agreed that

the police’s search for both gang-related material and all

firearms not only violated the Fourth Amendment, but

was objectively unreasonable. Like them, I believe that

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

would have known that his affidavit failed to establish

probable cause.” Malley v. Briggs, 475 U. S. 335, 345

(1986).

The Court also hints that a police officer’s otherwise

unreasonable conduct may be excused by the approval of

a magistrate, or more disturbingly, another police officer.

Ante, at 16–18. That is inconsistent with our focus on the

objective reasonableness of an officer’s decision to submit

a warrant application to a magistrate, and we long ago

rejected it. See Malley, 475 U. S., at 345–346.

The Court’s analysis bears little relationship to the

record in this case, our precedents, or the purposes under-

Cite as: 565 U. S. ____ (2012) 3

SOTOMAYOR, J., dissenting

lying qualified immunity analysis. For all these reasons,

I respectfully dissent.

I

The Court holds that a well-trained officer could have

reasonably concluded that there was probable cause to

search the Millenders’ residence for any evidence of affilia-

tion with “any Street Gang,” and “all handguns, rifles, or

shotguns of any caliber, or any firearms capable of firing

ammunition.” App. 52.1 I cannot agree.

A

Most troubling is the Court’s determination that peti-

tioners reasonably could have concluded that they had

probable cause to search for all evidence of any gang affili-

ation in the Millenders’ home. The Court reaches this

result only by way of an unprecedented, post hoc recon-

struction of the crime that wholly ignores the police’s own

conclusions, as well as the undisputed facts presented to

the District Court.

The Court primarily theorizes that “[a] reasonable of-

ficer could certainly view Bowen’s attack as motivated

not by the souring of his romantic relationship with Kelly

but instead by a desire to prevent her from disclosing

details of his gang activity to the police.” Ante, at 13. The

majority therefore dismisses as “misleading” the Millen-

ders’ characterization of the case as a “domestic dispute,”

insisting that Detective Messerschmidt could have rea-

sonably thought that the crime was gang related. See

ante, at 13–14.2

——————

1 Not even the Court defends the warrant’s authorization to search for

“[a]ny photographs . . . which may depict evidence of criminal activity.”

2 The Court implies Detective Messerschmidt did not consider the

crime “solely . . . a domestic dispute” because he labeled it a “spousal

assault and an assault with a deadly weapon.” Ante, at 13 (internal

quotation marks omitted). Solely domestic disputes often involve gun

violence, however. See Sorenson & Weibe, Weapons in the Lives of

4 MESSERSCHMIDT v. MILLENDER

SOTOMAYOR, J., dissenting

The police flatly rejected that hypothesis, however, con-

cluding that the crime was a domestic dispute that was

not in any way gang related. Detective Messerschmidt’s

deposition is illustrative.

“Q: So as far as you knew, it was just sort of a spousal-

abuse-type case where the perpetrator happened to be

in a gang, right?

“A: Correct.

“Q: So you didn’t have any reason to believe that the

assault on Kelly was any sort of gang crime, did you?

“A: No.” Record in No. CV 05–2298 DDP (RZx) (CD

Cal.) (hereinafter Record), Doc. 51, (Exh. X), p. 120

(hereinafter Deposition).3

The “Crime Analysis” forms prepared by the police like-

——————

Battered Women, 94 Am. J. Pub. Health 1412, 1413 (2004) (noting

more than one-third of female domestic violence shelter residents in

California reported having been threatened or harmed with a firearm).

That was the case here. In any event, the Court’s reading of Detective

Messerschmidt’s affidavit is incompatible with his testimony that the

crime was “just sort of a spousal-abuse-type case,” not a “gang crime.”

See supra this page.

3 By suggesting that courts assessing qualified immunity should ig-

nore police officers’ testimony about the information they possessed at

the time of the search, ante, at 14–15, n. 6, the Court misreads Harlow

v. Fitzgerald, 457 U. S. 800, 815–819 (1982), and Anderson v.

Creighton, 483 U. S. 635, 645 (1987). In Harlow, we adopted a qualified

immunity test focusing on an officer’s objective good faith, rather than

whether the officer searched “with the malicious intention to cause a

deprivation of constitutional rights or other injury.” 457 U. S., at 815.

As we have explained, “examination of the information possessed by the

searching officials . . . does not reintroduce into qualified immunity

analysis the inquiry into officials’ subjective intent that Harlow sought

to minimize.” Anderson, 483 U. S., at 641. It is therefore highly

relevant that Detective Messerschmidt testified that he lacked “any

reason” to consider the crime gang related, supra this page, and pos-

sessed no “information” that there were handguns in the Millenders’

home, infra, at 11. Courts cannot ignore information in crime analysis

forms, ballistic reports, or victim interviews by labeling such infor-

mation “conclusions.”

Cite as: 565 U. S. ____ (2012) 5

SOTOMAYOR, J., dissenting

wise identified Bowen as a “Mona Park Crip” gang mem-

ber, but did not check off “gang-related” as a motive for the

attack. See App. 41, 44 (Crime Analysis Supplemental

Form–M. O. Factors). And the District Court noted it was

undisputed that Detective Messerschmidt “had no reason

to believe Bowen’s crime was a ‘gang’ crime.” App. to Pet.

for Cert. 115.4

The police’s conclusions matched the victim’s own ac-

count of the attack. Kelly asked police officers to help her

move out because Bowen “ha[d] a domestic violence on his

record,” had “hit [her] once or twice” already, had repeat-

edly threatened her “You’ll never leave me. I’ll kill you

if you leave me,” and she was “planning on breaking up”

with him. Record, Doc. 51 (Exh. C), pp. 5–6 (hereinafter

Kelly Interview). As Kelly described the confrontation, it

was only after she fled to her car in order to leave that

Bowen reemerged from their shared apartment with the

shotgun and told her “I’m gonna kill your ass right here if

you take off,” consistent with his prior threats. Id., at 7–8.

Every piece of information, therefore, accorded with Detec-

tive Messerschmidt’s conclusion: The crime was domestic

violence that was not gang related.5

——————

4 The Court is wrong to imply that courts should not consider “facts

outside the affidavit,” but within the officers’ possession, when as-

sessing qualified immunity. Ante, at 10, n. 2. Our precedents make

clear that the objective reasonableness of an officer’s conduct is judged

“in light of clearly established law and the information the officers

possessed.” Wilson v. Layne, 526 U. S. 603, 615 (1999). If an officer

possesses information indicating that he lacks probable cause to search,

and that information was not presented to the neutral magistrate when

he approved the search, it is particularly likely that “a reasonably well

trained officer would have known that the search was illegal despite

the magistrate’s authorization.” United States v. Leon, 468 U. S. 897,

922, n. 23 (1984).

5 To support its theory that Bowen attacked Kelly to keep her silent

about his gang activity, the majority relies principally on its claim that

Bowen yelled, “ ‘I told you never to call the cops on me bitch!’ ” ante, at

2, citing it no less than five times. See, ante, at 11 (Bowen “attempt[ed]

6 MESSERSCHMIDT v. MILLENDER

SOTOMAYOR, J., dissenting

Unlike the Members of this Court, Detective Messer-

schmidt alone had 14 years of experience as a peace of-

ficer, “hundreds of hours of instruction on the dynamics of

gangs and gang trends,” received “specialized training in

the field of gang related crimes,” and had been “involved

in hundreds of gang related incidents, contacts, and or

arrests.” App. 53–54. The Court provides no justification

for sweeping aside the conclusions he reached on the basis

of his far greater expertise, let alone the facts found by the

District Court. We have repeatedly and recently warned

appellate courts, “far removed from the scene,” against

second-guessing the judgments made by the police or

reweighing the facts as they stood before the district court.

Ryburn v. Huff, 565 U. S. —, — (2012) (per curiam) (slip

op., at 6–8). The majority’s decision today is totally incon-

sistent with those principles.

Qualified immunity analysis does not direct courts to

play the role of crime scene investigators, second-guessing

police officers’ determinations as to whether a crime was

committed with a handgun or a shotgun, or whether vio-

——————

to murder” Kelly “on the asserted ground that she had ‘call[ed] the cops’

on him”); see also ante, at 1, 13. Bowen, however, never made that

statement. Though it appears in the warrant application, the words

are Messerschmidt’s—taken from his own inaccurate notes of Kelly’s

account of the crime. What Kelly actually said during her interview

was that as soon as the police deputies left, Bowen “came out of no-

where talking about, ‘Did you call the police on me? You called the

police on me,’ ” to which Kelly responded “no one called the police on

you . . . . [I]nstead of arguing and fighting with you I just want to get

my shit done.” Kelly Interview 7; compare ibid. with Record, Doc. 51

(Exh. B), p. 3 (Messerschmidt’s narrative of interview with Kelly). Only

after Kelly started to leave did Bowen exclaim “oh it’s like that. It’s

like that,” retrieve a gun, and threaten to shoot her if she left. Kelly

Interview 7–8. That Bowen was “ ‘angry,’ ” ante, at 14, n. 5, because she

had called the sheriff's department for assistance reflected exactly what

Kelly and the police expected at the outset—that Bowen “would give

her a hard time about moving out.” App. 38 (sheriff’s department

incident report).

Cite as: 565 U. S. ____ (2012) 7

SOTOMAYOR, J., dissenting

lence was gang related or a domestic dispute. Indeed,

we have warned courts against asking “whether another

reasonable, or more reasonable, interpretation of the

events can be constructed five years after the fact.”

Hunter v. Bryant, 502 U. S. 224, 228 (1991) (per curiam).

The inquiry our precedents demand is not whether differ-

ent conclusions might conceivably be drawn from the

crime scene. Rather, it is whether “a reasonably well-

trained officer in petitioner’s position would have known

that his affidavit failed to establish probable cause.”

Malley, 475 U. S., at 345. The operative question in this

case, therefore, is whether—given that, as petitioners

comprehended, the crime itself was not gang related—a

reasonable officer nonetheless could have believed he had

probable cause to seek a warrant to search the suspect’s

residence for all evidence of affiliation not only with the

suspect’s street gang, but “any Street Gang.” He could

not.

The Court offers two secondary explanations for why a

search for gang-related items might have been justified,

but they are equally unpersuasive. First, the majority

suggests that such evidence hypothetically “might prove

helpful in impeaching Bowen or rebutting various de-

fenses he could raise at trial.” Ante, at 15. That is a non-

starter. The Fourth Amendment does not permit the police

to search for evidence solely because it could be admissible

for impeachment or rebuttal purposes. If it did, the police

would be equally entitled to obtain warrants to rifle

through the papers of anyone reasonably suspected of a

crime for all evidence of his bad character, Fed. Rule Evid.

404(a)(2)(B)(i), or any evidence of any “crime, wrong, or

other act” that might prove the defendant’s “motive, op-

portunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident,” Fed. Rule Evid.

404(b)(2). Indeed, the majority’s rationale presumably

would authorize the police to search the residence of every

8 MESSERSCHMIDT v. MILLENDER

SOTOMAYOR, J., dissenting

member of Bowen’s street gang for similar weapons—

which likewise “might [have] prove[d] helpful in impeach-

ing Bowen or rebutting various defenses he could raise at

trial.” Ante, at 15. It has long been the case, however,

that such general searches, detached from probable cause,

are impermissible. See, e.g., Go-Bart Importing Co., 282

U. S., at 357. By their own admission, however, the offic-

ers were not searching for gang-related indicia to bolster

some hypothetical impeachment theory, but for other

reasons: because “photos sought re gang membership

could be linked with other gang members, evidencing

criminal activity as gang affiliation is an enhancement to

criminal charges.” App. 181; see also id., at 145. That

kind of fishing expedition for evidence of unidentified

criminal activity committed by unspecified persons was

the very evil the Fourth Amendment was intended to

prevent.

Finally, the Court concludes that “even if this were

merely a domestic dispute, a reasonable officer could still

conclude that gang paraphernalia found at the Millenders’

residence would aid in the prosecution of Bowen by, for

example, demonstrating Bowen’s connection to other

[unspecified] evidence found there.” Ante, at 15. That is

difficult to understand. The police were well aware before

obtaining a warrant that “other persons associated with

the home, the Millender family members, were active

Mona Park Crip gang members.” App. 28. Simply finding

gang-related paraphernalia, therefore, would have done

little to establish probable cause that particular evidence

found in the home was connected to Bowen, rather than

any of the several other active gang members who resided

full time at the Millender home.6 Moreover, it would have

——————

6 The Court suggests that even if gang-related evidence would be

inconclusive generally, evidence bearing Bowen’s particular gang mon-

iker could have demonstrated Bowen’s connection to the residence.

Cite as: 565 U. S. ____ (2012) 9

SOTOMAYOR, J., dissenting

done nothing to establish that Bowen had committed the

non-gang-related crime specified in the warrant.7

B

The Court also errs by concluding that petitioners could

have reasonably concluded that they had probable cause

to search for all firearms. Notably absent from the Court’s

discussion is any acknowledgment of the actual basis for

petitioners’ search. The police officers searched for all

firearms not for the reasons hypothesized by the majority,

but because they determined that “[v]alid warrants com-

monly allow police to search for ‘firearms and ammuni-

tion,’ ” and that “[h]ere, any caliber of shotgun or receipts

would show possession of and/or purchase of guns.” Id., at

144, 180–181; see also Brief for Appellant in No. 07–55518

(CA9), p. 41 (hereinafter CA9 Brief). It is small wonder

that the District Court found these arguments “nonsensi-

cal and unpersuasive.” App. to Pet. for Cert. 157. It bears

repeating that the Founders adopted the Fourth Amend-

ment to protect against searches for evidence of unspeci-

fied crimes. And merely possessing other firearms is not a

crime at all. See generally District of Columbia v. Heller,

554 U. S. 570 (2008).8

——————

But the warrant did not authorize a search for items bearing Bowen’s

moniker, but rather for items related to “any Street Gang,” including

countless street gangs of which Bowen was not a member. App. 52.

Even under the Court’s interpretation, therefore, the warrant was

hopelessly overbroad and invalid.

7 The police also could not search for gang-related evidence for its own

sake. Mere membership in a gang is not a crime under California law.

See People v. Gardeley, 14 Cal. 4th 605, 623, 927 P. 2d 713, 725 (1996).

8 Although the Court recites additional facts about Bowen’s back-

ground and arrest record, ante, at 2–3, none of these facts were dis-

closed to the magistrate. The police cannot rationalize a search post

hoc on the basis of information they failed to set forth in their warrant

application to a neutral magistrate. Rather, “[i]t is elementary that in

passing on the validity of a warrant, the reviewing court may consider

only information brought to the magistrate’s attention.” Aguilar v.

10 MESSERSCHMIDT v. MILLENDER

SOTOMAYOR, J., dissenting

By justifying the officers’ actions on reasons of its own

invention, the Court ignores the reasons the officers actu-

ally gave, as well as the facts upon which this case was

decided below. The majority’s analysis—akin to a rational-

basis test—is thus far removed from what qualified

immunity analysis demands. Even if the police had

searched for the reasons the Court proposes, however, I

still would find it inappropriate to afford them qualified

immunity.

The Court correctly recognizes that to satisfy the Fourth

Amendment the police were required to demonstrate

probable cause that (1) other firearms could be found at

the Millenders’ residence; and (2) such weapons were

illegal or were “ ‘possess[ed] . . . with the intent to use

them as a means of committing a public offense.’ ” Ante, at

12 (quoting Cal. Penal Code Ann. §1524(a)(3) (West

2011)). The warrant failed to establish either.

The majority has little difficulty concluding that because

Bowen fired one firearm, it was reasonable for the police

to conclude not only that Bowen must have possessed

others, but that he must be storing these other weapons

at his 73-year-old former foster mother’s home.9 Again,

however, this is not what the police actually concluded, as

Detective Messerschmidt’s deposition makes clear.

“Q: Did you have any reason to believe there would be

——————

Texas, 378 U. S. 108, 109, n. 1 (1964); see also United States v. Jacob-

sen, 466 U. S. 109, 112 (1984). Likewise, a police officer cannot obtain

qualified immunity for searching pursuant to a warrant by relying

upon facts outside that warrant, as evinced by Malley’s focus on

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

have known that his affidavit failed to establish probable cause.”

Malley v. Briggs, 475 U. S. 335, 345 (1986) (emphasis added).

9 The majority ignores that Bowen retrieved the shotgun that he fired

from the apartment he shared with Kelly, not the Millenders’ home.

Kelly provided no indication that Bowen possessed other guns or that

he stored them at his former foster mother’s home.

Cite as: 565 U. S. ____ (2012) 11

SOTOMAYOR, J., dissenting

any automatic weapons in the house?

“A: No.

“Q: Did you have any reason to believe there would be

any hand guns in the house?

“A: I wasn’t given information that there were.” Dep-

osition 120.

Undaunted, the majority finds that a well-trained officer

could have concluded on this information that he had

probable cause to search for “[a]ll hand guns, . . . [a]ll

caliber of ammunition, miscellaneous gun parts, gun

cleaning kits, holsters which could hold or have held any

caliber handgun being sought,” and “[a]ny receipts or

paperwork, showing the purchase, ownership, or posses-

sion of the handguns being sought.” App. 52. That is

puzzling. If any aspect of the Fourth Amendment is clear-

ly established, it is that the police cannot reasonably

search—even pursuant to a warrant—for items that they

do not have “any reason to believe” will be present. The

Court’s conclusion to the contrary simply reads the “prob-

able cause” requirement out of the Fourth Amendment.

Even assuming that the police reasonably could have

concluded that Bowen possessed other guns and was

storing them at the Millenders’ home, I cannot agree that

the warrant provided probable cause to believe any weap-

on possessed in a home in which 10 persons regularly

lived—none of them the suspect in this case—was either

“contraband or evidence of a crime.” Ornelas v. United

States, 517 U. S. 690, 696 (1996). The warrant set forth no

specific facts or particularized explanation establishing

probable cause to believe that other guns found in the

home were connected to the crime specified in the warrant

or were otherwise illegal.10 While the Court hypothesizes

——————

10 Augusta Millender was a 73-year-old grandmother living in a dan-

gerous part of Los Angeles. It would not have been unreasonable to

imagine that she validly possessed a weapon for self-defense, as turned

12 MESSERSCHMIDT v. MILLENDER

SOTOMAYOR, J., dissenting

that the police could have searched for all firearms to

uncover evidence of yet unnamed crimes, ante, at 11–12,

the warrant specified that the police were investigating

one particular crime—“an assault with a deadly weapon.”

App. 55. And the police officers confirmed that their

search was targeted to find the gun related to “the crime

at issue.” CA9 Brief 42; see also App. 52 (obtaining au-

thorization to search for “the item being sought and or

believed to be evidence in the case being investigated on

this warrant” (emphasis added)).

The police told the Ninth Circuit that they searched for

all firearms not because, as the majority hypothesizes,

“there would be additional illegal guns among others that

Bowen owned,” ante, at 11–12, but on the dubious theory

that “Kelly could have been mistaken in her description of

the gun.” App. to Pet. for Cert. 20–21. The Ninth Circuit

properly dismissed that argument as carrying “little

force.” Id., at 21. Its finding is unimpeachable, given that

Kelly presented the police with a photograph of Bowen

holding the specific gun used in the crime, and the police,

the victim, and a witness to the crime all identified the

gun as a sawed-off shotgun. See id., at 20, 21, 24, 28.

Finally, the majority suggests that the officers could

have reasonably believed that seizure of all firearms at the

Millenders’ residence was justified because those weapons

might be possessed by Bowen “ ‘with the intent to use

them as a means of committing a public offense.’ ” Ante, at

12. But the warrant specified that the police sought only

the shotgun used in this crime for that purpose. See App.

59 (statement of probable cause) (“Your Affiant also be-

lieves 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 further

——————

out to be the case.

Cite as: 565 U. S. ____ (2012) 13

SOTOMAYOR, J., dissenting

crimes being committed” (emphasis added)).

II

The Court also finds error in the Court of Appeals’

failure to find “pertinent” the fact that the officer sought

approval of his warrant from a magistrate.11 Ante, at 18.

Whether Detective Messerschmidt presented his warrant

application to a magistrate surely would be “pertinent” to

demonstrating his subjective good faith.12 But qualified

immunity does not turn on whether an officer is motivated

by good intentions or malice, but rather on the “objective

reasonableness of an official’s conduct.” Harlow v. Fitz-

gerald, 457 U. S. 800, 818 (1982).

The majority asserts, without citation, that the magis-

trate’s approval is relevant to objective reasonableness.

That view, however, is expressly contradicted by our hold-

ing in Malley v. Briggs, 475 U. S. 335. There, we found

that a police officer is not “entitled to rely on the judgment

of a judicial officer in finding that probable cause exists

and hence issuing the warrant,” and explained that “[that]

view of objective reasonableness is at odds with our devel-

opment of that concept in Harlow and [United States v.

Leon, 468 U. S. 897 (1984)].” Id., at 345. The appropriate

qualified immunity analysis, we held, was not whether an

——————

11 Under California law, magistrates are the officials responsible for

issuing search warrants. Cal. Penal Code Ann. §1523 (West 2011).

12 To be clear, no one suggests petitioners acted with malice or in-

tended to be “misleading in omitting . . . facts,” ante, at 10, n. 2, that

illustrate why it would have been objectively unreasonable to search for

the reasons the Court proposes. It is hardly surprising, for instance,

that Detective Messerschmidt did not include in his affidavit further

facts affirming that the crime was not gang related, given that he did

not believe the crime was gang related and did not search for gang-

related material for that reason. See supra, at 7–8. The affidavit and

warrant were perfectly consistent with the officers’ stated reasons for

their search—just not with the Court’s own theories.

14 MESSERSCHMIDT v. MILLENDER

SOTOMAYOR, J., dissenting

officer reasonably relied on a magistrate’s probable cause

determination, but rather “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.” Ibid.

(emphasis added).13 In such a case, “the officer’s applica-

tion for a warrant [would] not [be] objectively reasonable,

because it create[s] the unnecessary danger of an unlawful

arrest.” Ibid. When “no officer of reasonable competence

would have requested the warrant,” a “magistrate [who]

issues the warrant [makes] not just a reasonable mistake,

but an unacceptable error indicating gross incompetence

or neglect of duty.” Id., at 346, n. 9. In such cases, “[t]he

officer . . . cannot excuse his own default by pointing to the

greater incompetence of the magistrate.” Ibid.

In cases in which it would be not only wrong but un-

reasonable for any well-trained officer to seek a warrant,

allowing a magistrate’s approval to immunize the police

officer’s unreasonable action retrospectively makes little

sense. By motivating an officer “to reflect, before submit-

ting a request for a warrant, upon whether he has a rea-

sonable basis for believing that his affidavit establishes

probable cause,” we recognized that our qualified immu-

nity precedents had the “desirable” effect of “reduc[ing] the

likelihood that the officer’s request for a warrant will be

premature,” leading to “a waste of judicial resources” or

“premature arrests.” Id., at 343. To the extent it proposes

to cut back upon Malley, the majority will promote the

opposite result—encouraging sloppy police work and ex-

acerbating the risk that searches will not comport with

the requirements of the Fourth Amendment.

——————

13 Two Justices wrote separately, disagreeing with the majority be-

cause they believed that “substantial weight should be accorded the

judge’s finding of probable cause.” Malley, 475 U. S., at 346 (Powell, J.,

joined by Rehnquist, C. J., concurring in part and dissenting in part).

Cite as: 565 U. S. ____ (2012) 15

SOTOMAYOR, J., dissenting

The Court also makes much of the fact that Detective

Messerschmidt sent his proposed warrant application to

two superior police officers and a district attorney for

review. Giving weight to that fact would turn the Fourth

Amendment on its head. This Court made clear in Malley

that a police officer acting unreasonably cannot obtain

qualified immunity on the basis of a neutral magistrate’s

approval. It would be passing strange, therefore, to im-

munize an officer’s conduct instead based upon the ap-

proval of other police officers and prosecutors.14 See John-

son v. United States, 333 U. S. 10, 14 (1948) (opinion of

Jackson, J.) (“When the right of privacy must reasonably

yield to the right of search is, as a rule, to be decided by a

judicial officer, not by a policeman or government en-

forcement agent”). The effect of the Court’s rule, however,

is to hold blameless the “plainly incompetent” action of the

police officer seeking a warrant because of the “plainly

incompetent” approval of his superiors and the district

attorney. See ante, at 16–18; see also ante, at 3–4 (opinion

of KAGAN, J.). Under the majority’s test, four wrongs

apparently make a right. I cannot agree, however, that

the “objective legal reasonableness of an official’s acts,”

Harlow, 457 U. S., at 819, turns on the number of police

officers or prosecutors who improperly sanction a search

that violates the Fourth Amendment.

III

Police officers perform a difficult and essential service to

society, frequently at substantial risk to their personal

——————

14 In the famous case of Wilkes v. Wood, Lofft 1, 98 Eng. Rep. 489

(C. P. 1763), one of the seminal events informing the Framers’ development

of the Fourth Amendment, the Undersecretary of State who searched

the home of John Wilkes pursuant to a general warrant was subjected

to monetary damages notwithstanding that his superior, Lord Halifax,

issued the warrant. See Boyd v. United States, 116 U. S. 616, 626

(1886).

16 MESSERSCHMIDT v. MILLENDER

SOTOMAYOR, J., dissenting

safety. And criminals like Bowen are not sympathetic

figures. But the Fourth Amendment “protects all, those

suspected or known to be offenders as well as the inno-

cent.” Go-Bart Importing Co., 282 U. S., at 357. And this

Court long ago recognized that efforts “to bring the guilty

to punishment, praiseworthy as they are, are not to be

aided by the sacrifice of those great principles established

by years of endeavor and suffering which have resulted

in their embodiment in the fundamental law of the land.”

Weeks v. United States, 232 U. S. 383, 393 (1914).

Qualified immunity properly affords police officers protec-

tion so long as their conduct is objectively reasonable.

But it is not objectively reasonable for police investi-

gating a specific, non-gang-related assault committed with

a particular firearm to search for all evidence related to

“any Street Gang,” “photographs . . . which may depict

evidence of criminal activity,” and all firearms. The Court

reaches a contrary result not because it thinks that these

police officers’ stated reasons for searching were objective-

ly reasonable, but because it thinks different conclusions

might be drawn from the crime scene that reasonably

might have led different officers to search for different

reasons. That analysis, however, is far removed from

qualified immunity’s proper focus on whether petitioners

acted in an objectively reasonable manner.

Because petitioners did not, I would affirm the judgment

of the Court of Appeals.