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Justices from across the ideological spectrum were sharply critical on Monday of a Los Angeles police search warrant that turned a hunt for a sawed-off shotgun into a broad sweep of a home for all firearms and gang paraphernalia. During oral arguments in Messerschmidt v. Millender, Justice Sonia Sotomayor likened the disputed search warrant to the kind of “general warrant that our Founding Fathers in part passed the Fourth Amendment against.” Justice Antonin Scalia, for his part, zeroed in on the warrant’s authorization to search for indicia of suspect Jerry Bowen’s gang membership, even though it was not relevant to the suspect’s crime. “What possible purpose could that serve?” Scalia asked Timothy Coates of Greines, Martin, Stein & Richland, representing the Los Angeles officers who drafted and executed the warrant. The case represents the latest high court dispute over faulty police searches that are nonetheless based on police acting in “good faith.” Some of the controversies arise in the context of whether the evidence found in the search should be excluded at trial, but the Messerschmidt case stemmed from a civil rights lawsuit filed by the targets of the search. Augusta Millender filed suit after Los Angeles sheriffs’ deputies searched her home in 2003. The officers were looking for evidence against Millender’s foster son Bowen, who was accused of attacking his former girlfriend and chasing her with a shotgun. Detective Curt Messerschmidt had obtained a broad search warrant from a magistrate, not only for the shotgun but for all firearms in the home, as well as any “articles of evidence of street gang membership or affiliation.” Messerschmidt had learned from a police database that Bowen had connections to a violent Los Angeles gang. His superiors also signed off on the warrant. The search did not turn up the shotgun, but a gun belonging to Millender was seized. The U.S. Court of Appeals for the 9th Circuit ruled en banc against the officers, finding that the warrant for the other firearms and gang evidence was “so lacking in indicia of probable cause as to render official belief in its existence unreasonable.” As a result, the officers were stripped of the qualified immunity from suit they would otherwise have enjoyed. Groups ranging from the American Civil Liberties Union to the National Rifle Association filed briefs on the side of the search targets, asserting the warrant was dangerously overbroad and exposed property owners to seizure of legal belongings. Coates, representing Los Angeles, was peppered with questions from the justices critical of the breadth of the warrant. Justice Stephen Breyer posited that under the government’s theory, the warrant could have called for searching the home for “an atomic bomb,” even without any reason to believe one existed. Coates insisted that the search was proper, gang and firearm evidence were vital, and the magistrate’s approval was entitled to deference. Chief Justice John Roberts Jr. and Samuel Alito Jr. appeared sympathetic to the law enforcement side of the case. Roberts put himself in the position of Messerschmidt when he said, “I know the lawyers in the office said it was okay, and I know the judge said it was okay, but I know more than them; I know not only that it’s not okay, but it’s so clearly not okay that I shouldn’t have qualified immunity,” Roberts said. “That seems to me a pretty heavy burden to put on the cop on the beat.” Paul Wolfson of Wilmer Cutler Pickering Hale and Dorr, who represented Millender, responded that in the “great majority” of cases, officers who seek warrants from magistrates will be immune from suit. But he said the Court’s own precedents require that “officers must minimize the risk of Fourth Amendment violations by exercising reasonable professional judgment.” Wolfson added, “The Court ruled that an officer will not be immune if a ‘reasonably well trained officer’ … would not have believed that the warrant affidavit established probable cause.” Deputy Solicitor General Sri Srinivasan argued in support of Los Angeles, asserting that after obtaining a warrant from a “neutral magistrate,” an officer “in all but the most narrow circumstances can rely on the magistrate’s independent determination of probably cause.” Following the oral argument, George Washington University law professor Orin Kerr wrote on The Volokh Conspiracy blog, “On the whole, the questioning left the impression that the Justices see the case as significantly closer than I was expecting. I saw the case as a relatively straightforward reverse, but the lawyer for [Los Angeles] received a lot of pushback. The most surprising pushback was from Justice Scalia, who I read as indicating that he thought the errors in the warrant were obvious. Scalia is usually a strong pro-law enforcement vote in Fourth Amendment remedies cases, so if he’s on the other side, it’s hard to know where the votes will line up.” Tony Mauro can be contacted at [email protected].

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