Cops Cleared for Broad Search of Gang Member

(CN) - The Supreme Court on Wednesday revived immunity for a group of Los Angeles police officers who executed a warrant for all guns and gang-related material after a known gang member tried to kill his ex-girlfriend.

Angry that Shelly Kelly had called the sheriff's department to help her end their abusive relationship, Jerry Ray Bowen tried to throw the woman off a second-floor landing, tried to drag her into her apartment by her hair and then fired five bullets at her car as she sped away. Bowen used a pistol-gripped, sawed-off shotgun in the attack.

Kelly reported this to the police, identifying Bowen as a member of a local street gang. After a detective confirmed the report and downloaded Bowen's rap sheet, which spanned more than 17 printed pages, he obtained an arrest warrant and a warrant to search Bowen's apartment.

In a search of that property two days later, officers found an elderly woman with her daughter, grandson and personal shotgun. Though Bowen was not at the apartment, officers found a California Social Services letter addressed to him and a box of ammunition.

Two weeks later, Detective Curt Messerschmidt apprehended Bowen as the suspect hid under a motel bed.

In a subsequent lawsuit by the elderly woman whose apartment was searched, the officers faced claims that the search warrant was invalid under the Fourth Amendment.

A federal judge sided with Augusta Millender and her family, concluding that the warrant to search for "all firearms" was unconstitutionally overbroad. Since Messerschmidt knew that Bowen had fired a sawed-off shotgun at Kelly, that description negated the need to search for all weapons, according to the court.

The court also said the warrant should not have targeted gang-related materials because there was no evidence that the domestic dispute was gang related.

The District Court ruled that the officers were not immune from damages claims, and granted summary judgment to the Millenders on their constitutional chal­lenges to the firearm and gang-material aspects of the search warrant.

After a divided appellate panel said that Messerschmidt and his superior, Sgt. Lawrence, deserved immunity, the case went to the full 9th Circuit. This time, the federal appeals court affirmed that warrant's authorization was unconstitutionally overbroad.

The U.S. Supreme Court took a different view on Wednesday.

"Even if the scope of the warrant were overbroad in authorizing a search for all guns when there was infor­mation 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," Chief Justice John Roberts wrote for the majority. "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. And it certainly would have been reasonable for an officer to assume that Bowen's sawed-off shotgun was illegal. 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 owned."

The majority also criticized the Millenders' attempt to characterize the case solely as a domestic dispute.

"A reasonable officer 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," Roberts wrote. "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."

The 19-page decision furthermore faults the 9th Circuit for not giving weight to the fact that superior officers, a deputy district attorney and a neutral magistrate signed off on the warrant.

Justice Stephen Breyer wrote a separate concurring opinion that says "the officers could reasonably have believed that the scope of their search was supported by probable cause."

In a partial dissent, Justice Elena Kagan said immunity is not "an all-or-nothing affair."

Messerschmidt and his fellow officers deserve qualified immunity on the weapons search because they had reason to believe probable cause supported the warrant, she said. But the search for evidence of gang membership is not as justifiable, she added.

"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," Kagan wrote. "Instead, the police needed probable cause to believe that such items would provide evidence of an actual crime - and as the court acknowledges, the only crime mentioned in the warrant applica­tion 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, Messerschmidt's affidavit in fact characterized the violent assault only as a domestic dispute, not as a gang-related one, (describing the crime as a 'spousal as­sault and an assault with a deadly weapon'). And that description is consistent with the most natural under­standing 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." (Parentheses in original.)

Justice Sonia Sotomayor dissented in full, joined by Justice Ruth Bader Ginsburg.

"The court ... concludes that the officers are entitled to qualified immunity because their conduct was 'objectively reasonable,'" Sotomayor wrote. "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. 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.'"

"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," the 14-page dissent continues. "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."

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