MESSERSCHMIDT v. MILLENDER

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, Washington, 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

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No. 10–704

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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 respondents’ 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 investigation 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, respondents 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 material because the shooting at the ex-girlfriend for “call[ing] the cops” was solely a domestic dispute. The Court of Appeals for the Ninth Circuit held that the warrant was invalid, and that the officers were not entitled to immunity 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 relationship with Jerry Ray Bowen and move out of her apartment, 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 Department 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 managed to escape.

Kelly quickly located police officers and reported the 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 mentioned 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 investigate 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 Messerschmidt 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 Department of Motor Vehicles records, and the “cal-gang” database. 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, including three arrests for assault with a deadly weapon (firearm). 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:

“All handguns, rifles, or shotguns of any caliber, or any firearms capable of firing ammunition, or firearms or devices modified or designed to allow it [sic] to fire ammunition. All caliber of ammunition, miscellaneous gun parts, gun cleaning kits, holsters which could hold or have held any caliber handgun being sought. Any receipts or paperwork, showing the purchase, ownership, or possession of the handguns being sought. Any firearm for which there is no proof of ownership. Any firearm capable of firing or chambered to fire any caliber ammunition.

“Articles of evidence showing street gang membership or affiliation with any Street Gang to include but not limited to any reference to ‘Mona Park Crips’, including writings or graffiti depicting gang membership, activity or identity. Articles of personal property tending to establish the identity of person [sic] in control of the premise or premises. Any photographs or photograph albums depicting persons, vehicles, weapons or locations, which may appear relevant to gang membership, or which may depict the item being sought and or believed to be evidence in the case being investigated on this warrant, or which may depict evidence of criminal activity. Additionally to include any gang indicia that would establish the persons being sought in this warrant, affiliation or membership with the ‘Mona Park Crips’ street gang.” Id., at 52.

Two affidavits accompanied Messerschmidt’s warrant applications. 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 “hundreds 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 warrant. 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 personnel serving the warrant.” Id., at 59. The affidavit concluded 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 successful prosecution of the suspect involved in this case, and the curtailment of further crimes being committed.” Ibid.

Messerschmidt submitted the warrants to his supervisors—Sergeant Lawrence and Lieutenant Ornales—for review. Deputy District Attorney Janet Wilson also reviewed the materials and initialed the search warrant, indicating that she agreed with Messerschmidt’s assessment of probable cause. Id., at 27, 47. Finally, Messerschmidt 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 remained 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 Messerschmidt 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 department, 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. 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 challenges to the firearm and gang material aspects of the search warrant. Id., at 160. The District Court also rejected the officers’ claim that they were entitled to qualified immunity from damages. Id., at 171.

Messerschmidt and Lawrence appealed, and a divided panel of the Court of Appeals for the Ninth Circuit reversed 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 reasonably 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,” 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 reasonably 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, concluding 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 Tallman 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 Amendment 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 immunity from damages, even assuming that the warrant should not have been issued.

“The doctrine of qualified immunity protects government 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, 818 (1982) ). Qualified immunity “gives government officials 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 reasonable manner or, as we have sometimes put it, in “objective good faith.” United States v. Leon, 468 U. S. 897 –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 indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U. S., at 923 (internal 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 magistrate’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 magistrate 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 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 reasonably 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 evidence 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 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. 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 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 firearms “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 affidavit presented to the magistrate contained a sufficient basis to conclude that the gang paraphernalia sought was contraband or evidence of a crime.” Brief for Respondents 28. They argue that “the magistrate [could not] have reasonably 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 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 domestic dispute, however, is misleading. Cf. post, at 5 (Sotomayor, J., dissenting); post, at 2 (Kagan, J., concurring 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 weapon 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 database,” 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 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. 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

It would therefore not have been unreasonable—based on the facts set out in the affidavit—for an officer to believe 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 particular 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

In addition, a reasonable officer could believe that evidence 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 paraphernalia 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 Millenders “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

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 government 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 warrant 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 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. Ibid. Before seeking to have the warrant issued by a magistrate, Messerschmidt conducted an extensive investigation into Bowen’s background and the facts of the crime. Based on this investigation, Messerschmidt prepared a detailed warrant application that truthfully laid out the pertinent facts. The only facts omitted—the officers’ knowledge of Bowen’s arrest and conviction records, see supra, at 3—would only have strengthened the warrant. Messerschmidt then submitted the warrant application for review by Lawrence, another superior officer, and a deputy district attorney, all of whom approved the application without any apparent misgivings. Only after this did Messerschmidt seek the approval of a neutral magistrate, 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 contrary 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 deputies 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 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 obviously 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 precedent is far afield. There, we held that officers who carried out a warrant-approved search were not entitled to qualified 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 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 reasonable 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 appropriate to impose personal liability on a lay officer in the face of judicial approval of his actions. Even if the warrant in this case were invalid, it was not so obviously lacking in probable cause that the officers can be considered “plainly incompetent” for concluding otherwise. Malley, supra, at 341. The judgment of the Court of Appeals denying the officers qualified immunity must therefore be reversed.

It is so ordered.

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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) .

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 interview, 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.

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.

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 therefore 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 (opinionof Sotomayor, J.), the affidavit’s account of Bowen’s statements is 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 information 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 –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 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 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 reasonable 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. SeeApp. 64.

SUPREME COURT OF THE UNITED STATES

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No. 10–704

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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 warrants and writs of assistance to search “suspected places” for evidence of smuggling, libel, or other crimes. Boyd v. United States, 116 U. S. 616 –626 (1886). Early patriots railed against these practices as “the worst instrument of arbitrary power” and John Adams later claimed that “the child Independence was born” from colonists’ opposition 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 describing 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.

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 underlying 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 affiliation 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 petitioners reasonably could have concluded that they had probable cause to search for all evidence of any gang affiliation in the Millenders’ home. The Court reaches this result only by way of an unprecedented, post hoc reconstruction 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 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.” Ante, at 13. The majority therefore dismisses as “misleading” the Millenders’ characterization of the case as a “domestic dispute,” insisting that Detective Messerschmidt could have reasonably thought that the crime was gang related. See ante, at 13–14. 2

The police flatly rejected that hypothesis, however, concluding 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 likewise identified Bowen as a “Mona Park Crip” gang member, 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 account 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 repeatedly 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 Detective Messerschmidt’s conclusion: The crime was domestic violence that was not gang related. 5

Unlike the Members of this Court, Detective Messerschmidt alone had 14 years of experience as a peace officer, “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 inconsistent 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 violence 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 different 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 defenses 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, opportunity, 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 member of Bowen’s street gang for similar weapons—which likewise “might [have] prove[d] helpful in impeaching 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 officers 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 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 commonly allow police to search for ‘firearms and ammunition,’ ” 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 “nonsensical and unpersuasive.” App. to Pet. for Cert. 157. It bears repeating that the Founders adopted the Fourth Amendment to protect against searches for evidence of unspecified 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

By justifying the officers’ actions on reasons of its own invention, the Court ignores the reasons the officers actually gave, as well as the facts upon which this case was decided below. The majority’s analysis—akin to a rationalbasis 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 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.” Deposition 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 possession of the handguns being sought.” App. 52. That is puzzling. If any aspect of the Fourth Amendment is clearly 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 “probable 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 weapon 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 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 authorization 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 believes that the items sought will be in the possession of Jerry Ray Bowen and the recovery of the weapon could be invaluable in the successful prosecution of the suspect involved in this case, and the curtailment of further 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. Fitzgerald, 457 U. S. 800, 818 (1982) .

The majority asserts, without citation, that the magistrate’s approval is relevant to objective reasonableness. That view, however, is expressly contradicted by our holding 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 development 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 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 application 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 unreasonable 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 submitting a request for a warrant, upon whether he has a reasonable basis for believing that his affidavit establishes probable cause,” we recognized that our qualified immunity 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.

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 immunize an officer’s conduct instead based upon the approval of other police officers and prosecutors. 14 See Johnson 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 enforcement 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 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 innocent.” 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 protection so long as their conduct is objectively reasonable. But it is not objectively reasonable for police investigating 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 objectively 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.

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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 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 ignore 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 –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 possessed 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 information “conclusions.”

4  The Court is wrong to imply that courts should not consider “facts outside the affidavit,” but within the officers’ possession, when assessing 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] 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 nowhere 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).

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.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 background and arrest record, ante, at 2–3, none of these facts were disclosed 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. Texas, 378 U. S. 108 , n. 1 (1964); see also United States v. Jacobsen, 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.

10  Augusta Millender was a 73-year-old grandmother living in a dangerous part of Los Angeles. It would not have been unreasonable to imagine that she validly possessed a weapon for self-defense, as turned out to be the case.

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 intended 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.

13  Two Justices wrote separately, disagreeing with the majority because 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).

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’ developmentof 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) .

SUPREME COURT OF THE UNITED STATES

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No. 10–704

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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 shotgun—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 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 membership,” 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 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, 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 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.

To fill this vacuum, the Court proposes an alternative, but similarly inadequate justification—that gang paraphernalia 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. 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 impossible to square with the Fourth Amendment. See, e.g., Andresen v. Maryland, 427 U. S. 463, 480 (1976) (disapproving “ ‘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 officers’ 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 officers’ 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 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 warrant 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.

SUPREME COURT OF THE UNITED STATES

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No. 10–704

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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 circumstances. 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.

Print this transcript Transcript: 

ORAL ARGUMENT OF TIMOTHY T. COATES ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We will hear argument next in Case 10-704, Messerschmidt v. Millender.

Mr. Coates.

Timothy T. Coates: Mr. Chief Justice, and may it please the Court:

In Malley v. Briggs and United States v. Leon, this Court set forth a very high standard for denying qualified immunity in the civil context or suppressing evidence in the criminal context under circumstances where a police officer has procured a warrant that is subsequently determined to be invalid.

Specifically, the Court held that the initial magistrate's determination is -- is entitled to great deference, and that you will go behind that only in cases where the officer falsified information or omitted exculpatory information, where the affidavit was bare-bones, or there was some indication that the judicial officer did not perform the function, and then a catch-all provision, where the warrant was so lacking in indicia of probable cause that no reasonable officer could even submit it for a magistrate's determination.

And specifically in Malley, the Court said it had to be the actions of an officer that was plainly incompetent or knowingly violating the law.

This case arises from a Ninth Circuit decision that we submit does not apply the Court's standards, under circumstances where the officer submitted, far from a bare-bones affidavit, but a highly detailed, factual affidavit that we submit provided probable cause for the search or at least, under the Court's qualified immunity jurisprudence, a reasonable officer could believe that the warrant had probable cause.

Chief Justice John G. Roberts: There -- I suppose one new feature of the case is the fact that these officers submitted the affidavit to their superiors, who were -- were attorneys.

Timothy T. Coates: Correct.

There--

Chief Justice John G. Roberts: Have we addressed that in a prior case?

Timothy T. Coates: --I don't know that the Court -- the Court has -- in I believe the exclusion context I think I have seen it.

I can't recall the case, but I believe it has, and the circuit courts certainly have talked about that, as an indicia of good faith, the officer being willing to submit his work to someone else to review it.

So--

Justice Antonin Scalia: But it isn't good faith here, that's the problem.

We don't have a good faith test, we -- we have a test that goes beyond good faith.

Even if the officer is in good faith, according to the test we have set forth, if he's so stupid that -- that he -- he executes a warrant that no reasonable officer could think was correct, he's -- he's in the pot, right?

Timothy T. Coates: --Well, that -- that's the test that the Court has set out.

But it's a high test, plainly incompetent or knowingly violating the law.

And I think these are additional factual circumstances that show at least the officer is trying to be careful, that this isn't something that's been -- been tossed off.

Justice Sonia Sotomayor: Counsel, I thought in the Leon case that in fact, just like the claim in this case, that the affidavit was submitted to supervisors and the Court created the Leon test in spite of that.

So to say that we have a case on point, Leon itself is on point.

We created the test in the face supervisor's review.

You are not actually, are you, arguing a Nuremberg defense now?

Timothy T. Coates: No.

I'm just saying that--

Justice Sonia Sotomayor: That -- that simply because supervisors decide that it's okay, that that--

Timothy T. Coates: --No.

Justice Sonia Sotomayor: --exculpates someone from responsibility?

Timothy T. Coates: Certainly not.

And as I say, this comes up in the qualified immunity context repeatedly among the circuit courts.

They've recognize it as a -- as a factor.

But it is not dispositive, not by any means.

I agree with -- I agree with that, Your Honor.

Justice Sonia Sotomayor: All right.

Then let's go to the other two ways that I think you are asking us to overrule our precedent.

The first is using subjective information that a police officer knows, but hasn't disclosed in the warrant.

I'm having a little bit of difficulty understanding how an entire warrant regime that presumes that the magistrate has all pertinent information, and that's why you would be let off the hook, how you can excuse a police officer when he doesn't place that information in front of the magistrate?

Timothy T. Coates: The way that has generally come up has not been in the validity of the warrant for purposes of the Fourth Amendment, but in terms of qualified immunity for the officer or exclusion of the evidence under -- or not -- or nonsuppression, rather, under the good faith exception.

And it's whether the officer, in light of the totality of the circumstances, might not have recognized that the warrant was deficient if the warrant otherwise isn't -- isn't bare-bones.

And I think -- Leon itself in footnote 23 incorporates the Harlow standard of totality of circumstances.

Justice Sonia Sotomayor: Tell me how, this case, the bare-bone affidavit was sufficient?

All it says is that this defendant is a member of a gang, but when the police officer is questioned, he is asked whether this crime at issue had any connection to his gang relationship and the answer was no.

So how is the request of the warrant to search for all gang-related indicia anything more than the general warrant that our Founding Fathers in part passed the Fourth Amendment against?

Timothy T. Coates: Oh, I mean, this is not per se a gang crime.

Justice Sonia Sotomayor: This is almost like--

Timothy T. Coates: Without a -- without a doubt, it's not a what we consider a gangland crime, of one gang member against the other.

It's a domestic assault by a gang member on his girlfriend with a sawed-off shotgun in public, right after police officers that were there to protect her had left.

So it's not gang-related in that sense.

But I don't think that the gang membership is irrelevant to the investigation in this case.

You know, as we note and I think it is fairly recognized, gang members have the means to procure and use weapons beyond that of ordinary people.

Justice Ruth Bader Ginsburg: So if you have a gang member and the crime has absolutely nothing to do with gang membership -- that I think is the case here; it's a domestic assault -- as long as you are a gang member, than every warrant can say "search for all gang-related information"?

That's essentially your position, isn't it?

Timothy T. Coates: No, it isn't, because it's always a fact-specific inquiry.

The courts made that clear in Illinois v. Gates and for qualified immunity in Anderson v. Creighton.

We're--

Justice Ruth Bader Ginsburg: But you -- you said this is domestic assault.

There is no gang activity involved in that assault, right?

Timothy T. Coates: --Well, the gentleman is using a sawed-off shotgun, which is a weapon associated with -- with gangs.

I don't think it's a stretch for an officer to think that there might be some connection to the manner in which he procured that weapon, might hide that weapon--

Justice Ruth Bader Ginsburg: So anyone who has a weapon and is a member of a gang then can be -- there can be a search for any and all weapons and material related to weapons?

Timothy T. Coates: --Well, it depends on the circumstances of the crime that you are investigating.

Here we have an assault, we have a domestic assault with indications that the gentleman intends to continue it.

And indeed that's why the warrant is for all weapons; because it would make little sense to say you can go and you could find a sawed-off shotgun--

Justice Ruth Bader Ginsburg: I'm on to the part about all gang-related activities, when the crime has nothing to do with the -- with the gang.

Let's -- let's stick to that.

Then there is another issue.

But this said warrant to search for any and all gang-related items?

Timothy T. Coates: --Correct, Your Honor.

But the point is that's to be used to possibly tie Mr. Bowen to any weapon that was found.

It's identification information.

If they found, for example, the sawed-off shotgun there and his gang colors with his gang moniker, that would certainly help to tie him to that shotgun.

Justice Ruth Bader Ginsburg: But they didn't need to tie him to the shotgun.

They had photographs of him with the shotgun.

Timothy T. Coates: They have some evidence, but you don't have to stop just because you have some evidence.

I mean, you are entitled to build your case as strong as you--

Justice Ruth Bader Ginsburg: What -- what do you need more than here he is, with his gun, the defendant himself and his gun?

I mean, what--

Timothy T. Coates: --Well, if you found the actual shotgun there wrapped in his -- in his gang -- gang colors with his gang moniker, I mean, it would make an even stronger case.

And I also note, say you find a.

45-caliber pistol wrapped in his gang colors with his gang moniker.

I don't think--

Justice Sonia Sotomayor: --What do we do with the officer's testimony when he said,

"Did you have any reason to believe there were any more weapons in the house? "

He said, "No".

What -- when an officer says that, why would then he think that he has complete license to go and ask for a warrant that's looking for more guns, when there is only evidence of him possessing one?

Timothy T. Coates: --Because, again, the nature of gang membership is that gangs--

Justice Sonia Sotomayor: So you are answering -- you are answering Justice Ginsburg by saying that any time a gang member commits any crime, the police are entitled to seek a warrant that permits the search for anything they have in their home that relates to their gang membership and to -- to guns?

Timothy T. Coates: --No, because I think it depends.

Here we have a crime that definitely involves a gun, involves an illegal gun--

Justice Sonia Sotomayor: That did not involve -- by the officer's admission and your own, that wasn't gang-related.

Timothy T. Coates: --The assault, correct.

Justice Sonia Sotomayor: The assault--

Timothy T. Coates: But the manner in which he procures the weapon, might dispose of the weapon, the nature of the weapon itself.

Justice Sonia Sotomayor: --But wait a minute.

That has nothing to do with the gang, unless you are saying that you had proof that the gang did something illegally in helping him procure the weapon.

What information did you have to suggest that?

Timothy T. Coates: Again, the nature of a sawed-off shotgun; it's an illegal weapon in and of itself.

Justice Sonia Sotomayor: Counsel--

Chief Justice John G. Roberts: Whose house -- whose house was this?

Timothy T. Coates: Augusta Millender's house, Ms. Millender's home.

Chief Justice John G. Roberts: It was not the defendant's house?

Timothy T. Coates: Correct.

No, he was a foster son who had come back to stay.

Justice Stephen G. Breyer: To what--

Justice Elena Kagan: What's the -- I'm sorry.

Justice Stephen G. Breyer: --To what extent are we supposed to take things that aren't in the affidavit or the warrant itself as relevant?

I mean, the only thing that bothers me as I read the affidavit, it doesn't say someone else is living in the house.

At least I didn't see that.

And then the statement of Justice Sotomayor said: Well, that's later on in a deposition.

So -- so if I were the magistrate sitting there and I read the -- the affidavit, I might think I did have cause, At least it's close, maybe, to allow them to search for all the guns in the house.

I might think they all belong to him.

And anyway, I might think he thought that this could be used to -- other guns could be used to go after her again.

But when I read, he says: Oh, I had no cause at all for thinking that.

Why isn't that the end of it, if we're supposed to take that into account.

Timothy T. Coates: Well, I mean, again, I think, as he sets forth his experience as a gang officer, and the manner in which gangs dispose of, procure weapons--

Justice Stephen G. Breyer: He didn't say much about the gang.

Timothy T. Coates: --No.

Justice Stephen G. Breyer: I'm asking you a specific question.

I mean if I were supposed to take into account his statement, I had no reason -- to paraphrase it a little -- thinking that any of these guns, other guns, were going to be used for any purpose that's illegal -- if he'd said that afterwards, if I take that into account, I say, why isn't that the end of the case?

He has no cause to ask for the other guns, period.

Timothy T. Coates: Well--

Justice Stephen G. Breyer: Now that was the question, I think roughly, that you were being asked and I would like to hear the answer.

I thought the answer would be: I don't have the right to take it into account.

Now, do I or don't I?

Timothy T. Coates: --Well, I mean, it's an -- it's an objective standard.

It's what a reasonable officer would do with the facts before him.

Justice Stephen G. Breyer: Wait.

Before him?

Timothy T. Coates: Yes.

Justice Stephen G. Breyer: Or before the -- do I look at the affidavits and the warrant, or do I also look at things that are in neither of those documents, but were in the officer's head?

Timothy T. Coates: For purposes of determining the Fourth Amendment validity of the warrant, the Court has said you -- you look at the warrant.

Under the qualified immunity test and in the criminal suppression context of good faith, you can go outside that and look at the totality of what the officer knew, and if in light of what he knew whether he could have believed it was so.

Justice Stephen G. Breyer: So if I look at whether he was in good faith, if he has any training at all, I would guess that if he thought that there is no -- I don't remember the exact words -- no reason, no reason to believe there would be any weapons in the house, no reason to believe there would be any handguns in the house, and then I say, I want a warrant to search for handguns in the house, it looks like you are asking for a warrant to search for that for which you have no reason to believe it's there.

Now, that I would have thought was not good faith.

That was contrary to the Fourth Amendment.

Why isn't it?

Timothy T. Coates: Because you -- you still have under 1524(a)(3) of the California Penal Code the -- the ability to search for items that might be used with the intent to commit another crime.

And I think if this was--

Justice Stephen G. Breyer: Even though you can search a person's house -- why don't I search the person's house for an atomic bomb?

And I say: Why are you doing that?

He says: I have no reason to believe it's there.

But that is a constitutional search?

Timothy T. Coates: --Well, again I think -- going back here in terms of -- stepping back from good faith as opposed to probable cause, I don't think it's irrelevant that this guy is a gang member.

I don't think it's unusual to think that, while you might know specifically whether there's a handgun or not--

Justice Antonin Scalia: Excuse me.

Why are you going back to good faith?

I mean--

Timothy T. Coates: --Well--

Justice Antonin Scalia: --That's -- that is what I think is the problem with this case.

If it's a good faith test, you come out with one result.

But the test we have expressed is not good faith.

This -- this police officer could have been in the best of faith, but if he's a very bad police officer he's in the soup, right?

Timothy T. Coates: --Yes.

Justice Antonin Scalia: We don't have a good faith test for this purpose.

Timothy T. Coates: Sure.

But a -- but the standard is plainly incompetent or knowingly violating the law, and I think -- again, there is enough detail in there that I don't think it is illogical to say there is some connection between gang membership and the possibility or even the fair probability that there are other weapons in a residence.

Chief Justice John G. Roberts: Of course--

Justice Antonin Scalia: So when -- I'm sorry.

Chief Justice John G. Roberts: --I was just going to say, of course you are making the case somewhat harder for yourself because the issue here is whether it was reasonable for him to say, let me check and see what my superiors say about this, and then after that review for him to say, let's see what the magistrate thinks about this, right?

Timothy T. Coates: Correct.

It's a -- it's a further step back, because whether it's even reasonable for him to ask the magistrate for a determination--

Justice Stephen G. Breyer: What cause is there to think -- what cause is there to think that the gang guns will be used to commit a crime.

Timothy T. Coates: --This is a gentleman who just perpetrated assault with a sawed off shotgun.

He didn't make -- specify, in terms of his threat, that he was confining his further attack to a sawed off shotgun.

I just don't think it's a stretch of logic for an officer to believe that if he found a.45-caliber pistol there wrapped in gang colors that he should be able to seize it to prevent--

Justice Antonin Scalia: But the warrant didn't just authorize, you know, firearms wrapped in gang colors.

It lets him search for any evidence of gang membership, right?

Timothy T. Coates: --Correct.

Justice Antonin Scalia: What possible purpose could that serve?

Timothy T. Coates: Again, because the evidence of gang -- indicia of gang membership could be used to tie him to things in the residence that you might find, absolutely.

It's an identifying characteristic of Bowen.

Justice Antonin Scalia: If they were wrapped in it yes.

But we know he is a gang member.

Timothy T. Coates: Sure.

Justice Antonin Scalia: So all that the finding of gang membership decals or whatever they wear, all that would show is indeed this guy was a gang member.

Timothy T. Coates: Well, excuse me, Your Honor.

And present in that particular premises, it might show ownership or control, it might show access to the weapons.

It's not relevant to that--

Justice Antonin Scalia: But they knew he was in that premises, I mean that -- I really don't understand how you can possibly search for indicia of gang membership when you know the man's a gang member, so what?

Timothy T. Coates: --Well, again, Your Honor, it ties him closer.

It shows him them at the property.

Justice Sonia Sotomayor: --But tell me something.

There is ten people in this house.

There is ten people in this house and as I understand it from the questioning, they also knew other gang members were there.

So even if they found gang colors, did they tell the manufacturer or the magistrate that -- what would that prove when there is multiple members in the house.

Timothy T. Coates: Well, you could find again, gang member -- indicia gang membership as to him.

Justice Sonia Sotomayor: Well, he admitted to that.

Timothy T. Coates: Well, correct.

And he is also a member of several gangs, so you could find unique colors for one of his gangs and not for the other.

Justice Sonia Sotomayor: What does that have to do with anything other than a general search -- a general search.

Timothy T. Coates: A general search is evidence that--

Justice Sonia Sotomayor: Because again, in the hope of finding evidence of other crimes.

Timothy T. Coates: --No.

Justice Sonia Sotomayor: That's what it sounds like.

Timothy T. Coates: No.

Because it would tie him to anything found in that residence.

Again, if you found a.45 caliber pistol--

Justice Ruth Bader Ginsburg: --What about a provision for any photographs that depict evidence of criminal activity?

That seems to me as general as you can get.

Photographs depicting evidence of criminal activity.

Timothy T. Coates: --That actually is in the section that deals with indicia of gang membership.

It has been carved out by Respondents for the first time as a separate category.

I note it was not argued down below that way, it was not viewed at the district court that way and it was not viewed by the circuit judges that way.

And I do have to say that we're sitting here looking at 11 judges and like 6 attorneys have looked at this and they have never brought that out separately.

And now we are saying that should have jumped out to the officer's separately.

I think we cite case law saying that you should interpret that within the context of the entire provision which is the indicia of gang membership provision.

And if I may, I would like to reserve the balance of my time for rebuttal.

Chief Justice John G. Roberts: Thank you, Counsel.

Mr. Srinivasan.

ORAL ARGUMENT OF SRI SRINIVASAN, FOR UNITED STATES, AS AMICUS CURIAE, IN SUPPORT OF PETITIONERS

Sri Srinivasan: Thank you, Mr. Chief Justice, and may it please the Court:

When an officer follows the favored practice under the Fourth Amendment of obtaining a warrant from a neutral magistrate before conducting a search, the officer in all but the most narrow circumstances can rely on the magistrate's independent determination of probable cause.

Justice Elena Kagan: Mr. Srinivasan, there are two categories of materials here, one is the search for other guns and the other is the search for anything relating to gang membership.

If we think that those two categories present different questions, if we think that one is more beyond a balance than another, that an officer might have qualified immunity from let's say the guns but not the evidence of gang membership, what would happen in this case at that point?

Sri Srinivasan: Well, I think one of the questions that would arise is whether the one as to which you thought there was a problem would expand the scope in a meaningful way.

Because if -- let's take Your Honor's hypothesis that there is less of a reason to be concerned about the firearms related aspects of the warrant than the gang related parts of the warrant, then the question would arise whether you would have a Fourth Amendment violation in the first place.

Because if the gang related parts of the warrant didn't expand the scope of the search in such a way that would implicate independent privacy interest, there wouldn't be a Fourth Amendment problem with that aspect of the warrant and therefore you wouldn't have the qualified immunity issue for sure.

Justice Antonin Scalia: What does that depend on, whether you would look for the indicia of gang memberships in places where you wouldn't look for guns, is that it?

Sri Srinivasan: That's right.

You look at the two aspects of the warrant and you ask whether the second one which is hypothetical to be the problematic one would allow you to search in places or search with more intensity than the first--

Justice Antonin Scalia: Well, if you are looking for photographs that show gang membership, I guess you could look through photograph albums, you wouldn't really look there for guns, would you?

Sri Srinivasan: --Well, but no.

I think the relevant is page 52 of the Joint Appendix.

That is what sets fourth the two paragraphs at issue.

And the first paragraph which Justice Kagan supposes doesn't raise a problem and I'll -- to that assumption.

It provides not only for searches of all firearms, but it provides and we think legitimately for searches of any receipts or paperwork showing the purchase, ownership or possession of the guns being sought.

And so it -- and paperwork certainly includes photographs.

Because if you find photographs of an individual carrying a particular firearm, that's good evidence.

So photographic evidence is within the scope of the first paragraph not just the second.

And so it does raise the question of whether the second paragraph increases the scope.

The other point I would raise in this respect is that in the second paragraph itself the anchor sentence in some respects in the second paragraph is the second sentence, which discusses not gang related indicia in particular but articles of personal property tending to establish the identity of persons and control of their premise or premises writ large.

And that provision has not been seen to have a problem associated with it thus far.

The district court thought it was okay.

The Court of Appeals at page 27(a) of the petition appendix seemed to assume it was okay.

And that's understandable because there are a legion of cases that support those sorts of provisions, including the Ewing case cited by the majority below.

Justice Samuel Alito: There is something very strange about the rule we are applying here.

A warrant was issued by a judge in the Superior Court, isn't that right.

Sri Srinivasan: Yes, I believe so.

Justice Samuel Alito: And -- and so that judge, who is a lawyer and was appointed as a judge and presumably has some familiarity with the Fourth Amendment, found that there was probable cause to search for all of these things.

And now we are asking whether a reasonable police officer who is not a lawyer and certainly is not a judge should have been able to see that this call that was made by a judge was not only wrong but so wrong that it -- you couldn't reasonably think that the judge might be correct.

Is there some way to phrase this, if this rule is to be retained in any form, is there some way to phrase it so that it is narrowed appropriately?

Sri Srinivasan: Well, I -- I think the court has attempted to do that in Malley and Leon itself, because it has made clear that in the main, in all but the most narrow circumstances where a magistrate does find the existence of probable cause, the court need not engage in any searching inquiry to determine the qualified immunity is appropriate.

Justice Antonin Scalia: But the most narrow circumstance is defined as a circumstance in which no reasonable police officer could have thought the warrant was correct.

Why don't we adopt a good faith test for this as we do in other -- in other--

Sri Srinivasan: Well, I think in some sense, Justice Scalia, you have two, in response, two parts of your question.

First of all in defining what is objectively unreasonable in this situation, the court has used some pretty strong language.

In Malley it spoke in terms of a magistrate who is grossly incompetent.

And in Leon it spoke of--

Justice Antonin Scalia: --Policeman.

Policeman.

Sri Srinivasan: --No, it was speaking of a magistrate actually, not the officers.

Because the point in order to find the officers are liable in this situation, the officers would have to be so sure that probable cause is lacking that only a grossly incompetent magistrate could sign off on the probable cause assessment.

So it used gross incompetence with respect to the magistrate which illustrates the degree to which the standard is heightened in this context.

And in terms of whether the good faith principles come into play in the qualified immunity context, what the courts said in Malley is that the same standard of objective reasoning -- of reasonableness that governs in the good faith context for suppression purposes also governs in the qualified immunity context in 1983.

And so I think there is room to import into the qualified immunity context these principles of good faith like for example, Mr. Chief Justice, the question of whether the officers in question asked superiors for their assessment of whether there is probable cause.

And in Sheppard, which was a suppression case, but in Sheppard at page 98 and 9 of the opinion the court specifically made reference to the fact that the officer in that case had asked for a probable cause--

Justice Antonin Scalia: Well, I don't like this mishmash.

Look, it's either good faith or it's -- however good his faith was, however well he showed his good faith by checking with his superiors or what not, if he -- if he made an incompetent decision it's incompetent.

And we should not mix the two, it seems to me.

Sri Srinivasan: --Well that, I mean certainly I don't want to urge anything upon the Court that would tend to water down the standard in the suppression context, but the only point I would add to this, Justice Scalia, is that when you are looking at it from the perspective of a reasonable officer who is trying to assess whether he should go forward and ask for assessment of probably cause from the magistrate, one consideration that seems natural to take into account is what actions the officer has taken, not just the quantum of proof that the officer has put in the affidavit but what actions has he taken.

Has he asked for--

Justice Antonin Scalia: That would be wonderful if the test was, was this -- did this officer know that this was a bad affidavit and was acting in bad faith in executing it?

If that was the test, then indeed the fact that he had checked with his superiors and all that good stuff would have some relevance.

Sri Srinivasan: --The test as outlined by the Court in Malley is whether it's subjectively reasonable for the officer to rely on the magistrate's judgment of probable cause.

Justice Ruth Bader Ginsburg: Was the test was so lacking in indicia of probable cause as to render official belief in its existence unreasonable?

Sri Srinivasan: It's -- the Court did say that, Your Honor, and the Court put the formulation in a number of respects in Malley itself.

It said, 344:

"We hold that the same standard of objective reasonableness that we applied in the context of the suppression hearing in Leon defines the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional arrest. "

And I think that's where the Court then goes on and articulates what Your Honor just quoted.

But then the Court later says: 345: In Leon we stated that our objective faith "--" good faith inquiry is confined to the objectively ascertainable question of whether a reasonable well-trained officer would have known that the search was illegal despite the magistrate's authorization.

The analogous question in this case,

"and it goes on to speak about the analogy question. "

Justice Elena Kagan: I think the question, Mr. Srinivasan, is do you think that the current test, the test that's currently formulated, is sufficiently protective of police officers?

Or do you think that we need to change the test in order to give police officers the protection they need?

Sri Srinivasan: We think if the current test is applied properly, it's sufficiently protective.

And really the question is how it's applied.

And in this case it was applied in a way that I think is not sufficiently protective.

Justice Antonin Scalia: Of course, you could say that in any test, you know?

If you apply it protectively it will protect.

Sri Srinivasan: You could--

Justice Antonin Scalia: And if you don't apply it protectively, it won't protect.

I like a test that, you know, that protects when it ought to and doesn't protect when it ought to.

Chief Justice John G. Roberts: Did you say apply protectively or correctly?

Sri Srinivasan: --Applied -- Well, I meant to say applied correctly, if applied correctly.

I apologize if I misspoke.

If applied correctly, it should sufficiently protect--

Justice Anthony Kennedy: In the background of this case is this question.

A suspect has a weapon.

He flees.

As a general rule, do you think that warrants can say that when they search the home or the place where this person is likely to be, they can seize all weapons?

Is this the general rule?

Sri Srinivasan: --No -- not -- not necessarily the general rule, Justice Kennedy.

It has to be context specific.

Here you had a lot more than that.

You had an individual who had perpetrated an attempted murder, who was a known member of a violent gang, who had -- who had perpetrated physical assaults against this victim before, and who had directly threatened the victim that he would murder her if she ever went to the police, and that he was going to kill her.

Justice Sonia Sotomayor: You keep adding facts that weren't in--

Justice Anthony Kennedy: So the test is whether or not he is likely to commit another crime?

Sri Srinivasan: Well that's the test that--

Justice Anthony Kennedy: I mean, I thought the Petitioner said -- I didn't have the time to interrupt -- that under California law they can search for anything where he is likely to commit another crime.

Sri Srinivasan: --Yes, this is a very important point, Justice Kennedy.

At page 48 of the joint appendix, the language of the relevant California statute is set forth.

The California provision is section 1524(a)(3) of the California Penal Code, and it authorizes a search for and seizure of items where they are possessed by a person with intent to use them as a means of committing a public offense.

And that's the provision that was invoked this very warrant.

And there -- and that's--

Chief Justice John G. Roberts: Finish your sentence.

Sri Srinivasan: --That provision is by no means an outlier.

It's in Federal Rule of Criminal Procedure 41(c)(3) and it's in the Model Penal Code of Pre-Arraignment Procedure at section 210.3, subsection (1)(c).

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Wolfson.

ORAL ARGUMENT OF PAUL R.Q. WOLFSON ON BEHALF OF THE RESPONDENTS

Paul Rq Wolfson: Thank you, Mr. Chief Justice, and may it please the Court:

In Malley v. Briggs, this Court ruled that police officers do not have immunity for seeking a search warrant when the warrant application is so lacking in indicia of probable cause was to render official belief in its existence unreasonable.

Chief Justice John G. Roberts: Malley involved a search warrant based solely on a wiretap in which an unknown individual discussed drug use at a party.

That was all.

It seems to me there's a lot more information here.

Paul Rq Wolfson: Well, Malley involved a mistake as to who the person under suspicion was who was mentioned in the -- in the wiretap.

But the argument was made in Malley that is exactly the argument that is made here, which is that the police -- it -- one wants to encourage the police to seek warrants from the magistrates, and it would be -- and it would be, it would be undesirable if the police were not given effectively absolute immunity when they seek a warrant from a magistrate, except of course when they -- when they lie, which is a separate question.

Chief Justice John G. Roberts: Here you had a police officer who assembled information he had, truthful information, in the affidavit, submitted it to his superiors, who were lawyers.

Then it was submitted to the magistrate, who was a judge.

And what you have to say, it seems to me, is that a reasonably competent officer -- not objective good faith or anything like that -- a reasonably competent officer would say: You know, I know the lawyers in the office said this 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.

That seems to me a pretty heavy burden to put on -- to put on the cop on the beat.

Paul Rq Wolfson: Mr. Chief Justice, I don't think -- I don't think there is any question that in the great majority of cases officers who seek warrants from magistrates will be immune.

And the Court made clear in Malley that it does happen that officers make mistakes, good faith mistakes as to whether a particular set of facts amounts to probable cause, and in that context when there is a good faith mistake the officers will have immunity.

But the Court also stressed that officers must minimize the risk of Fourth Amendment violations by exercising reasonable professional judgment in applying for search warrants.

And so the Court ruled that an officer will not be immune if a "reasonably well trained officer", which is the term the Court used, would not have believed that the warrant affidavit established probable cause.

Justice Samuel Alito: Is it the case here that a reasonably well trained officer would not -- would understand that this warrant was defective in authorizing a search for guns other than the shotgun in question when a provision of the California Penal Code says that a search warrant may be issued to seize items intended for use in committing a crime?

Paul Rq Wolfson: A reasonable -- that a reasonably well trained officer would not have sought the search warrant.

I don't think the California Penal Code provision really adds anything to the rest of the case, because it says that you may seek items that are intended to be used in a crime, but you still have to know, you still have to have probable cause to believe that there are such items.

And so the cases where--

Justice Samuel Alito: You have your client who has discharged a sawed-off shotgun at his former girlfriend in an attempt to kill her.

And he is known to be a member of a violent gang, and he has threatened to kill her, and so a reasonable police officer would -- could not think, well, he might have some other guns and he -- and there would be an intent to use those in the commission of the crime that he has threatened to commit.

Paul Rq Wolfson: --Well, Mr. Bowen is not our client, Justice Alito.

Mr. Bowen--

Justice Samuel Alito: I'm sorry.

Excuse me.

Mr. Bowen--

Paul Rq Wolfson: --No, but this is an important point.

Our clients are the innocent family that lives in the house where--

Justice Samuel Alito: --Well, that was just -- that a misstatement on my part.

Paul Rq Wolfson: --No, I understand, but--

Justice Samuel Alito: He could not think that about Mr. Bowen?

Paul Rq Wolfson: --But I want to make the point, not only do the police have to have probable cause to believe that there is such an item, they also have to have probable cause to believe that it will be found in the place that they propose to search.

I mean, probable cause--

Justice Samuel Alito: All right.

It was found that there was probable cause to believe that he was living in these premises, isn't that correct?

And you're not contesting that.

Paul Rq Wolfson: --Well, we are contesting that.

We're contesting that--

Justice Samuel Alito: It's not an issue before us.

Paul Rq Wolfson: --It's not an issue here.

The Ninth Circuit decided the case on the assumption that there was probable cause to believe Mr. Bowen would be found--

Justice Samuel Alito: Well, on the assumption that he was living in those premises, then what is wrong with a reasonable officer thinking: He's tried to kill her in the past using one gun; he's a member of a gang; he is very likely to have -- to possess or have access to other guns; those other guns may be found in the home where we believe he is living, and he is intending to use them to carry out the threat that he has promised, the threat that he has made?

Paul Rq Wolfson: --Well, there are several -- I think there are several problems with that.

The first problem is the police don't have probable cause to believe that he has another one, and they don't -- and they certainly don't have probable cause to believe that any other such gun would be found at the Millenders' house and I -- the Millenders' house where innocent people live.

Now -- And it's not just that no other such gun would be found at the Millenders' or the Millenders themselves had right to possess handguns for lawful purposes of self defense.

So it's possible, of course it is possible to speculate about the things that the police might--

Justice Anthony Kennedy: Well, just suppose they are searching the suspect's own house.

Paul Rq Wolfson: --Correct.

Justice Anthony Kennedy: And there's -- he's used a specific gun.

A 12-gauge Remington shotgun, and they are looking for that.

And these facts are the same.

He made -- continued to elude the police and may attack again.

And they are searching the house, his own house.

They see the one gun.

They see a second gun.

They cannot take the gun, the second gun?

Paul Rq Wolfson: No, I would not -- I would not say that, Justice Kennedy because I think that--

Justice Anthony Kennedy: On what basis do you say they can take the second gun?

Paul Rq Wolfson: --Because if the police are in a place where, lawfully in a place pursuant to a properly, narrowly drawn warrant, and they -- and they see something in plain view, under this Court's plain view doctrine as articulated in Horton v. California, and there is probable cause to see something there to associate with criminal activity, yes, the police can -- can seize that.

But it's -- but there is a big difference between thinking about what the police can do if they enter someplace lawfully, and how they can react--

Justice Stephen G. Breyer: Yes, but what's the difference between what you just said and the situation here?

You say, if he sees the gun next to the bed, for example, or in the closet, and he's in the house looking for the sawed-off shotgun, he could seize it.

He can't unless he has probable cause to think it might be used for a crime.

Paul Rq Wolfson: --Yes, but--

Justice Stephen G. Breyer: And -- so how did that change?

How did that change suddenly because he happened to see in the house something in the closet, and nothing else changed?

Why now suddenly can he take it?

Paul Rq Wolfson: --I think the assumption, as I understood, behind Justice Kennedy's question was, if the police see something -- happen to see something in the house that is probable cause of a crime--

Justice Stephen G. Breyer: But your argument is there was no probable cause for thinking that the guns in the house, if there were other guns, would be used for a crime.

Now, your opponent, your brethren there, said when I suggested that: Oh, no, that's wrong; there is probable cause to think that any guns in the house would be used for a crime.

He hasn't killed the girl yet, and one gun's as good as another.

And he might well take one of those other guns and kill her.

So there's probable cause to believe that the guns that are in the house, or at least one could reasonably think so, would be used for a crime.

That was his response.

Then, as to whether they are likely to be in the house, well, we know this: we know he has a sawed-off shotgun, and we know he is a member of a gang, which is defined as a group of people engaged in definable criminal activity, creating an atmosphere of fear and intimidation.

So people like that have guns.

And when -- where they live, there may well be other guns.

So it is reasonable for me to think there are other guns in the house and reasonable for me to think that other guns in the house would be used for killing this girl if he can get to her.

Okay, that's the argument.

Now, what's the response?

Paul Rq Wolfson: --Well--

Justice Stephen G. Breyer: And you don't have to -- you have to show more than that there is no probable cause.

You have to shown it wasn't reasonable to think that there was probable cause.

Paul Rq Wolfson: --Because the police did not have probable cause to believe there was any other gun, and they certainly--

Justice Stephen G. Breyer: He is a member of a gang which often has guns, and this expert knows that members of gangs have guns.

And the definition of gang suggests they are likely to have guns, whether it's illegal to have them or not illegal.

That's how he knows that that's--

Paul Rq Wolfson: --But it doesn't -- excuse me.

It doesn't necessarily follow that there is probable cause to believe that he has an arsenal of weapons with him in an innocent third party's house.

Justice Antonin Scalia: And the warrant authorized the search for and seizure of all guns, not just the guns belonging to Bowen.

And in--

Paul Rq Wolfson: That's correct.

Justice Antonin Scalia: --in fact, they seized some of the Millenders' guns, didn't they?

Paul Rq Wolfson: That is correct.

Justice Antonin Scalia: And why is that -- if there is probable cause to believe that he has other guns, is there also probable cause to believe that any gun found in the house will belong to them?

I think not.

Paul Rq Wolfson: I would say not, Your Honor, but I--

Chief Justice John G. Roberts: We have been talking -- we have been talking about this for some time as if we are reviewing the adequacy of the warrant.

We are not.

We are reviewing the reasonableness of these officers' determination that there was probable cause.

Do you think it is at all pertinent in addressing that question that the officers submitted the affidavit to support the warrant to Deputy District Attorney Jane Wilson, who reviewed it and signed off on it?

Paul Rq Wolfson: --I -- I think it can't be dispositive, Your Honor.

Chief Justice John G. Roberts: I didn't ask if it's dispositive.

Is it relevant in any way?

Paul Rq Wolfson: It could be -- it could be relevant, but I would say it -- it doesn't make the case in this case, for a few reasons.

First of all, generally speaking, of course, if you can't rely on the magistrate as a -- you know, as a blanket rule that you are not immune, it's hard to understand why the fact that the deputy district attorney signed off on it would have essentially the same effect that the Court rejected in Malley, when it said, you know, there will be a limited set of circumstances where even if -- even if a magistrate issues a warrant, the officer will be liable.

So I don't think -- I mean, the district attorney and the superior are on the same crime-fighting team as the -- as the -- as Detective Messerschmidt in this case.

Also, we really -- we have no information about what transpired in these conversations with the deputy district attorney.

We don't know whether the D.A. said to Detective Messerschmidt: Oh, you know, you're good, you're pushing the envelope here, but we might just find a magistrate who will go along with it, so -- you know, so see what you can get.

And the other point is, of course, relying on your superiors and on the D.A. is a double-edged sword in many cases, because that -- in fact, that can establish or go a long way towards establishing Monell liability, if you establish that there's a pattern of superiors and of deputy district attorneys--

Chief Justice John G. Roberts: Do you want -- do you want to encourage officers, when they are applying for search warrants, to have them reviewed by the deputy district attorney or not?

Paul Rq Wolfson: --Certainly we want them to encourage that, Mr. Chief Justice.

But the point is, in Malley, this Court made clear that ultimately, a reasonably -- a reasonably well-trained officer must make a judgment himself as to whether the course of conduct that he proposes to undertake could reasonably be thought to be within the law.

Justice Antonin Scalia: Ultimately, it's the officer who goes into the Millenders' house, seizes their arms, rifles through their drawers.

It's -- it's the officer that does that?

Paul Rq Wolfson: Well, the officers who are the Petitioners in this case are the officers who actually applied for the search warrant and who actually drafted the search warrant for the magistrate to sign.

Now, they then were present at the search.

I think there is a--

Justice Antonin Scalia: I didn't understand that.

Paul Rq Wolfson: --Yes.

Justice Antonin Scalia: They did not execute the warrant?

Paul Rq Wolfson: They were -- they were -- they were part of the executing team, yes.

They were--

Chief Justice John G. Roberts: But did they enter the residence?

Paul Rq Wolfson: --They entered the residence, yes.

There were other officers who I think it would be fair to say kind of more -- undertook the more-concrete search of the -- you know, of the house from top to bottom.

I think there is a difference question about when a line officer relies on his lead officer's instructions.

And that was actually discussed by the Ninth Circuit in -- in the Groh case which later came up to -- came up to this Court.

But I think the -- the standard that the Court set forth in Malley, the objective reasonableness standard, is really -- is consistent with this Court's qualified immunity case law.

Justice Stephen G. Breyer: --If we are using a purely objective standard, another fact that I just want your reaction on is where he says:

"I told you never to call the cops on me. "

Now, he has tried to throw her out of the window or something, he -- he's shot at her, he's tried to kill her in five different ways, and he's shouting: I am going to kill you and I told you never to call the cops on me.

When I first read that I thought, well, maybe he has something -- maybe this is explained in part not just domestic, but he has something to hide.

He's afraid she's going to tell the police something.

Now -- now, could a person reasonably read those words and think he has something to hide here?

His -- and there's something going on and it's not just domestic?

Where does that lead us if we--

Paul Rq Wolfson: I don't really--

Justice Stephen G. Breyer: --Can we read it that way?

And if we do read it that way, where does that lead you?

Paul Rq Wolfson: --Well, the Petitioners have never suggested that reading before.

And indeed, the Petitioners have -- indeed, Detective Messerschmidt testified at his deposition, no, I didn't have any reason to believe that the crime was gang-related.

I mean, one of the curious things about the -- the argument that the Petitioners are now making, which is that you can go outside the warrant and import into it the fact that he was a felon, one of the curious things about that is that the -- is that the officers told the magistrate this is a violent crime, no question, he is a gang member -- not in support of probable cause, but in support of night service.

They told the magistrate that they had reviewed all the various government databases, specifically including police databases, but did not tell the magistrate that he had any criminal record at all.

But that's so--

Justice Ruth Bader Ginsburg: Mr. Wolfson, suppose they had had a warrant to search just for the sawed-off shotgun.

You conceded that when they go into the house and they are looking all over, they could look in cabinets and drawers to find pieces of the shotgun.

They come across other guns, they can at least secure -- take those guns for their own safety.

There are other people in the house and somebody might use them.

So what's -- what's the difference in the scope of the search if they have a warrant just to look for the sawed-off shotgun or if they have a warrant that covers any guns?

Paul Rq Wolfson: --Well, a couple of responses.

First of all, I think this Court's decisions in Groh and other courts made clear that when you are evaluating whether -- whether the Respondents were harmed by this violation of their constitutional rights, you have to look at the warrant that was actually applied for and executed, not -- you don't -- you don't compare it to a hypothetical warrant that the police might have gotten if they had applied for a properly limited warrant.

Chief Justice John G. Roberts: You cite -- well, in Groh, the warrant did not identify the items to be seized at all.

Paul Rq Wolfson: That is correct.

But the argument was made in Groh was, well, there really was no harm because surely the officers had probable cause, and if they had done their work right, there was I think no question that they would have gotten a warrant.

Chief Justice John G. Roberts: Your answer, and again--

Paul Rq Wolfson: Right.

Right.

Chief Justice John G. Roberts: --it seems to me we keep separating these two inquiries.

It's not whether the warrant showed adequate probable cause; it's whether or not the officers were reasonable in believing that it did.

Paul Rq Wolfson: I understand.

Chief Justice John G. Roberts: And to cite Groh, a -- no reasonable officer could think that a warrant that doesn't say anything at all about what is to be seized complied with the Fourth Amendment.

Paul Rq Wolfson: But the argument was made in Groh that essentially this was sort of no harm, no foul, because surely a reasonable police officer could have obtained a valid warrant.

And I was -- I was sort of analogizing that to the question that Justice Ginsburg made.

I don't think that really is a question of qualified immunity at all.

I think that may be a question of damages as to whether you could think oh, well, perhaps the police might have gotten a valid warrant and so forth.

But -- so I think, sure, it's possible to imagine that the police could have gotten a valid, narrow warrant limited to -- limited to search for the sawed-off shotgun, and -- and certainly not the gang-related activity, but they didn't.

And one has to -- one has to measure the harm that the -- that the Millenders suffered by execution of this--

Justice Sonia Sotomayor: So what happens--

Paul Rq Wolfson: --invalid warrant.

Justice Sonia Sotomayor: --below on that question?

Following up on--

Paul Rq Wolfson: Right.

Justice Sonia Sotomayor: --the same question that Justice Kagan asked if your brethren, which is how about we find that it was reasonable to ask for the guns but not for the gang-related materials?

What does that do with your claim, and do you disagree with the manner in which he described what the inquiry would be below, or before us now?

Paul Rq Wolfson: Right.

We do disagree.

We would submit that the -- that it's still -- that it's still invalid.

But this is an issue that the courts of appeals have wrestled with under what is called the severance doctrine, which mostly is applied in exclusionary rule cases, not in qualified immunity cases.

This Court has actually never explicitly endorsed the severance doctrine, and that is the question that suppose you have a warrant that is sort of half valid and half invalid; or maybe half arguably valid but half totally, you know, totally valid.

What do you do then?

And the -- I think at a minimum the record would not permit this Court to -- to resolve that because we don't know from the record before us sort of what part of the search was conducted under what part of the -- of the warrant.

Justice Samuel Alito: What about the gang paraphernalia?

Why couldn't an officer reasonably believe that there was a probable cause to seize that -- to search for and seize that, because it would link Mr. Bowen with this residence where they hoped to find the shotgun?

And you dispute the fact that he is -- that he is associated with that residence.

Paul Rq Wolfson: Right.

So Justice Alito, there are certainly are circumstances in which it is legitimate to seek for information that links a particular person to a particular location for purposes of establishing criminal liability.

The -- you know, there are many cases, for example, where police come across a meth lab or something like that, and of course in that situation the police have a legitimate reason to -- to want to know who is present, whose fingerprints are all over the place, because that would tend to establish that the person is -- is in unlawful possession of methamphetamine.

Justice Samuel Alito: Then why couldn't a reasonable officer think that that would be the case here.

Paul Rq Wolfson: For -- for a few reasons.

First of all, the 120th Street address, like the Millenders' house, is totally irrelevant to the actual crime under investigation which took -- someplace else.

I mean it's just a happenstance that the -- that the police are searching -- searching this place.

It's not the place; this is not a tavern or a still or--

Justice Samuel Alito: No, well, if they have probable cause to believe that the sawed-off shotgun is there; let's suppose they find the sawed-off shotgun.

Then there's going to be an issue at trial: was it his sawed-off shotgun?

And anything that links him to that residence is valuable evidence.

Paul Rq Wolfson: --But the gang-related indicia part of the warrant is -- first of all, much, much broader than that; and secondly the Petitioners have never argued until this Court that that was the purpose of the gang-related indicia part of the warrant.

I mean, the Petitioners argued that the gang-related indicia part of the warrant is intended to establish his -- his gang membership.

And -- because for example, there might be a -- an increase in penalty if something is a gang-related crime.

Even--

Justice Samuel Alito: I thought this was a test of what they could -- what a reasonable officer could have believed, not what they in particular believed?

Paul Rq Wolfson: --Well, that's correct, but I think that does not mean that one can engage essentially in a completely post-hoc rationalization of what the objective search by the -- to be accomplished by the warrant is.

I mean, the warrant application itself says this is a spousal assault that the police are investigating.

There is no suggestion that it's a gang-related crime in any way.

Justice Elena Kagan: Mr. Wolfson, it seems that many of the arguments on both sides are very fact-dependent in nature, that you are asking what inferences can be drawn reasonably from certain facts, from a particularly violent incident, from the use of a sawed-off shotgun, from the fact that this was not his home, from the fact that he was a gang member; and yet the cases that you cite to us as suggesting what a reasonable police officer should know, really are not cases that involve these facts at all.

They are cases that state very broad general propositions about Fourth Amendment law.

So how can you get from those cases to what you are saying a particular police officer in a particular set of circumstances ought to know?

Paul Rq Wolfson: Well, of course this Court has never required that, for qualified immunity purposes, that the case -- there be another case exactly on point.

Justice Elena Kagan: But -- no.

But there seems to be a very large gap between what this police officer has to think about and the cases that you cite.

Paul Rq Wolfson: Respectfully, Justice Kagan, I don't think I agree, and I think that it's -- it's useful to look at two related but somewhat different lines of cases, particularly in the Ninth Circuit, but actually, you know, all across the board in the courts of appeals.

The first line of cases says if the police have reason, or have probable cause to look for a specific object, or specific -- even a specific kind of object, that doesn't give them probable cause to look for the whole generic class of objects that are somewhat similar.

The leading case on this in the Ninth Circuit is the Spilotro decision, but there are many cases coming both before and after that stand for that proposition.

The -- the principle has been applied in many contexts.

For example, if you think somebody is committing fraud for years 1998 and 1999, and there are billing records, you can't -- you don't have probable cause to look for fraud, you know, for the entire records, billing records from 1950 to the present.

If you think that -- if you see somebody run over somebody else in a green Nissan Sentra, you don't have probable cause to search for all vehicles including a red Ford -- a red Ford Explorer.

This is really that principle in the context of firearms.

And it -- and Detective Messerschmidt had the information that the case involved a black sawed-off shotgun with a pistol grip.

Now there certainly are cases--

Justice Samuel Alito: Well, to come back to a question that was asked before--

Paul Rq Wolfson: --Yes.

Justice Samuel Alito: --suppose they were issuing -- suppose the warrant just sought this -- the -- that particular weapon.

They execute it, and they come to a room in this house and it's got Mr. Bowen's name on it, and inside there is a gun cabinet and there are -- there's -- there are a whole -- there is a whole array of guns, legal -- let's say he legally possesses them.

There's a -- there's a -- these are assault rifles, there are pistols; and it's known that he's threatened to kill his girlfriend.

You say -- would the police be able to seize those?

Paul Rq Wolfson: Yes, I think there are many things the police can do.

First of all, an assault rifle is illegal, so that per se is contraband--

Justice Samuel Alito: All right.

All sorts of legal weapons--

Paul Rq Wolfson: --Right.

Okay.

Justice Samuel Alito: --that could be used.

Could they -- could they seize those?

Paul Rq Wolfson: Well, the police -- if -- and so one question is do the police know that Mr. Bowen is a felon?

And here I think that is relevant, because they are dealing with what not what is in the affidavit, but to on-the-spot judgments.

So if the police--

Justice Samuel Alito: Let's--

Paul Rq Wolfson: --So -- okay.

Justice Samuel Alito: --I am hypothesizing--

Paul Rq Wolfson: Right.

Justice Samuel Alito: --he has a license for all of these.

He's not--

Paul Rq Wolfson: Right.

So I think there are -- I think if the police have probable cause, in light of the circumstances that they actually encounter at the house, that the guns--

Justice Samuel Alito: --The circumstances are exactly the circumstances here--

Paul Rq Wolfson: --That the--

Justice Samuel Alito: --except for the two things that I changed.

It's his room, and it's his gun cabinet.

Paul Rq Wolfson: --The police may be able to secure all of those weapons, certainly so that they pose no danger to anybody else; and if Mr. Bowen is arrested and then, if -- if he is to be released on bail or on pretrial release, it's a very common condition that he not have access to any weapons.

The police -- it may be required that he deposit those weapons with somebody else who, you know, is a proper custodian--

Justice Samuel Alito: What happens if they don't find him?

He is still at large.

They have to leave the weapons there?

Paul Rq Wolfson: --I don't think they -- necessarily have to leave the weapons there.

Justice Samuel Alito: --why?

On what grounds could they seize them?

Paul Rq Wolfson: If there is no -- well, if he not, if he is not there, then it is not clear to me that he has a Fourth Amendment standing to challenge anything.

Justice Samuel Alito: It's his room.

Paul Rq Wolfson: It's his room.

But if he's -- I mean, but if he's -- if they really believe that the police, that he is there, that it is his house, there is no reason to believe that his possession of any of those weapons is illegal, there are -- the police can do things to secure--

Justice Anthony Kennedy: I am putting in my notes that you are not answering the hypothetical.

Paul Rq Wolfson: --Right.

[Laughter]

I think there -- I'm not sure.

I don't think the police can say these weapons are just ours, we are going to take them, we can seize them without -- without probable -- without more probable cause.

Justice Samuel Alito: They can't say we are going to take them under -- we're going to take them so that he can't use those to kill his girlfriend which is what he has threatened to do?

They just have to leave them there--

Paul Rq Wolfson: No--

Justice Samuel Alito: --and if he happens to come back and -- and get those weapons, and he kills her, well, that's just too bad?

Paul Rq Wolfson: --But if the police -- the police have -- if the police have probable cause to believe the he -- on the spot that he will use that weapons, yes, they can seize them under that provision of the California Penal Code, but that does not mean they have probable cause when they apply for the -- the warrant, to think that those weapons either will--

Justice Samuel Alito: You really -- you really are not answering my question.

Paul Rq Wolfson: --Yes.

I--

Justice Samuel Alito: My question is: everything is exactly the same except that it's his room and he's not a felon and he possesses them legally and there they are and they see them.

Paul Rq Wolfson: --I think--

Justice Samuel Alito: And your answer is they can take them; in which case my question is, why wouldn't they have probable cause to search for those in the first place?

Or they can't take them, in which case I say well, what about the possibility that he will come back, get those weapons and carry out his threat using those weapons?

Paul Rq Wolfson: --They could -- they may be able to take them but that does not mean that they knew that they existed in the first place or that they would be at the Millenders' house.

That's -- that I think is the fundamental difference.

Justice Ruth Bader Ginsburg: What happened here when they -- they -- they did seize weapons that belonged to the plaintiff, Mrs. Millender?

They -- they took them because they thought they were the defendant's?

Not that -- they thought they were Bowen's?

Paul Rq Wolfson: It's not clear, Justice Ginsburg.

They took them under the authority of the warrant.

They did not provide an explanation as to specifically why they were -- why the gun was seized, but the gun was seized.

And this -- I think that's really the -- this point, that they went into the Millenders' house, searched the house from top to bottom, and seized the Millenders' -- Mrs. Millender's lawfully owned weapon really shows that this case is in the heartland of what the Fourth Amendment is concerned about.

I mean, this is exactly the kind of case that the Framers were concerned about when they abolished the general warrant.

This is the sort of case--

Chief Justice John G. Roberts: Counsel -- do you -- do you contend that anything in the affidavit was false?

Paul Rq Wolfson: --Yes.

False or at least -- or at least misleading.

Chief Justice John G. Roberts: What was that?

Paul Rq Wolfson: I think the -- the -- the proposition that Bowen quote, unquote 120th Street address, and that that -- and that that conclusion was drawn from among other things, Detective Messerschmidt's search of government databases was material misleading, because he didn't reside there.

He may have been staying -- hiding out there, and the search of the government database which are actually -- the results are actually reprinted--

Chief Justice John G. Roberts: Where did the -- may have been -- may have staying there.

Paul Rq Wolfson: --That is what Shelley Kelly told Detective Messerschmidt which is, if I am not mistaken--

Chief Justice John G. Roberts: It was materially false, that they said he resides there, and what he knew is that he may have been staying--

Paul Rq Wolfson: --He may have been hiding out there.

When -- especially when you combine that with all the other information that Detective Messerschmidt actually obtained from the printouts of the databases which are in the JA, which in fact say that he hadn't been at the 120th Street address for several months and his most recent address was 97th Street where he lived with -- where he stayed with, at least sometimes, Shelley Kelly and gave it out as his address.

So that -- that is in respects why we think this is materially misleading.

Of course, we were not allowed to appeal that determination.

So that really only half of the case in that respect was before the court of appeals and is before the Court.

Thank you very much.

Chief Justice John G. Roberts: --Thank you, counsel.

Mr. Coates, you have 2 minutes remaining.

REBUTTAL ARGUMENT OF TIMOTHY R. COATES ON BEHALF OF THE PETITIONERS

Timothy T. Coates: With respect to the -- the hypothetical that Justice Alito postulated in terms of finding other weapons there, and Respondents' counsel to say well, we might to on the plain view doctrine, I think these are circumstances in which we note that you want to encourage officers when they can, not to -- not rely on exceptions to the warrant requirement, and here if anything the officers in an abundance of caution attempted to get a warrant, contemplating those precise circumstances.

I don't think they should incur liability for -- for going to that extra step and that extra precaution.

And again, a step back from whether there is actually probable cause, but whether a reasonable officer could even believe that might be the case for purposes of sending it to a magistrate.

I think under those circumstances you want to encourage officers to seek a magistrate's determination and not try and rely on on-the-scene exceptions to the warrant requirement to try and justify seizing weapons under those circumstances.

With respect to Justice Scalia's concern about the probable cause to seize all guns as opposed to guns belonging to Bowen, and I think the notion is that Bowen, being a resident and that being established for purposes of this contention at this point, it's still down at district court but it was assumed for purposes of the Ninth Circuit that he was a resident -- that as a resident that he would have access to that firearm, and I think this was bolstered by a fact, again his status as a gang member, we cite the Chicago Housing Authority v. Rhodes case which talks about the manner in which gang members often store and use weapons at family members' homes.

I mean, it's an unfortunate part of -- of the gang culture, so it's not unreasonable for an officer to think there might be probable cause at the very least to seize any weapon found there, even if ultimately facts developed that it is in fact not Bowen's weapon.

And this also goes to the indicia of gang membership and why it's reasonable even to ask, because that may be one of the means by which we could tie a particular weapon to Bowen depending upon what is found during the search.

This is a very high standard as established by this Court, which is essentially plainly incompetent or knowingly violating the law.

And this is an officer that has not hidden the ball with respect to what transpired between Bowen and Kelly.

He submitted it to his superiors to look at; he submitted it to an attorney; and while that is not dispositive, I think those are objective facts that a reasonable officer could say, I have done this, this and this; there is no reason for me to believe that I am violating the law in sending it to a magistrate.

Chief Justice John G. Roberts: Thank you, counsel, counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: I have our opinion this morning in case 10-704, Messerschmidt versus Millender.

Shelly Kelly decided to break off her romantic relationship with Jerry Ray Bowen and moved out her apartment to which Bowen had a key.

Bowen had assaulted Kelly before, was an active gang member, and had an extensive history of involvement in violent and firearms crimes.

Fearing an attack from Bowen, Kelly asked officers from the Los Angeles County Sheriff's Department to accompany here 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."

Bowen charged up the stairs, grabbed Kelly 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.

She was able to break free and ran to her car.

As Kelly got into here car, Bowen stepped out of the apartment armed with a pistol grip sawed-off shotgun.

He ran in front car, pointed the shotgun at Kelly and said, "If you try to leave, I'll kill you."

Kelly ducked behind the dashboards, slammed the gas pedal and sped away.

Bowen fired five shots at the car blowing out the left front tire but Kelly made good her escape.

She quickly located police officers and reported the attack.

They returned to the apartment, but by then Bowen had fled.

Detective Curt Messerschmidt was assigned to investigate the assault.

He prepared an application for a warrant to search the resident of -- residence of Bowen's foster mother, Augusta Millender, where Kelly said Bowen might be hiding.

The warrant sought authorization to search for all firearms and ammunition, as well as evidence of gang membership.

The warrant application was accompanied by affidavits detailing the facts of the attack and Messerschmidt's extensive experience with gang related crimes.

Before submitting the warrants to a magistrate, Messerschmidt had them reviewed, first by Sergeant Robert Lawrence then by a police lieutenant and finally, by deputy district attorney.

After receiving their approvals, Messerschmidt submitted the warrant application to a magistrate who issued the warrant without modification.

The ensuing search, however, revealed only a shotgun owned by the 73-year-old Millender, a California Social Services letter addressed to Bowen, and a box of .45-caliber ammunition.

Millender sued Messerschmidt and Lawrence claiming that the officers had subjected them to an unreasonable search in violation of the Fourth Amendment.

The Millender's claimed that the warrant was to too broad in authorizing a search for all firearms when the officers knew only about a sawed-off shotgun and the authorizing a search for evidence of gang membership when the crime was simply a domestic dispute.

The Court of Appeals agreed with the Millenders and concluded that the officers could be held personally liable for money damages because any reasonable officer would have known that the warrant was unconstitutional.

For reasons explained more fully in our opinion filed today, we reverse.

There's a doctrine in our cases called qualified immunity which protects government officials from lawsuits when they make reasonable, but mistaken judgments.

It gives government officials breathing room to act and our cases have said that it protects "all but the plainly incompetent or those who knowingly violate the law."

In this case, Messerschmidt and Lawrence searched the Millenders' home under a warrant issued by a neutral magistrate.

The fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted reasonably and normally is enough to protect the officers from suit, normally but not always.

Our precedence have recognized an exception allowing suit when again "it is obvious that no reasonably competent officer would have concluded that a warrant should issue."

The "shield of immunity" otherwise conferred by the warrant will be lost, we have said, 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."

This case does not fall within that narrow exception.

Now, we do not decide whether this warrant was overbroad in authorizing a search for all guns when there was information only about a specific one.

That specific one was a pistol grip sawed-off shotgun, owned by a known gang member, who had just fired the weapon five times in public in an attempt to murder another person because she had "called the cops" on him.

Even if the warrant were overbroad, it would not have been entirely unreasonable for an officer to conclude that someone who owned a pistol grip sawed-off shotgun might own other illegal guns or that seizure of the weapons was necessary to prevent further attacks on Kelly.

Now, with respect to the warrant's authorization to search for evidence of gang membership, we do not think it would be again "entirely unreasonable for an officer to view this episode as not simply a domestic dispute."

In the affidavit he submitted in support of the warrant, Messerschmidt described the crime as "a spousal assault and an assault with a deadly weapon."

And Bowen who is a known member of Mona Park Crips Gang had attacked Kelly after becoming enraged that she had called the cops on him.

A reasonable officer could view the attack as motivated not just by the souring of Bowen's romantic relationship with Kelly but also by a desire to prevent her from disclosing details of his gang activity to the police.

And a reasonable officer could conclude that evidence of Bowen's gang membership could help establish a motive for the attack, support related charges such as witness intimidation that could be brought against Bowen, demonstrate that Bowen had familiarity with sawed-off shotguns or tie him to other evidence found at the residence.

Now, on top of all this the officers sought and obtained approval of the warrant application from the superior officer and a deputy district attorney before submitting it to the magistrate.

The statements in the warrant were true.

The officers thus “took every step that could reasonably be expected of them.”

To conclude that no reasonable officer could believe that the warrant was supported by probable cause would mean not only that Messerschmidt and Lawrence were plainly incompetent, but that their supervisor, the deputy district attorney, and the magistrate were as well.

So, even if the warrant in this case were invalid, it was not so obviously lacking in probable cause that the officers can be considered plainly incompetent for concluding otherwise.

The judgment of the United States Court of Appeals for the Ninth Circuit denying qualified immunity to the officers is reversed.

Justice Breyer has filed a concurring opinion.

Justice Kagan has filed an opinion concurring in part and dissenting in part.

Justice Sotomayor has filed a dissenting opinion in which Justice Ginsburg has joined.