Groh v. Ramirez – Oral Argument – November 04, 2003

Media for Groh v. Ramirez

Audio Transcription for Opinion Announcement – February 24, 2004 in Groh v. Ramirez

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William H. Rehnquist:

We’ll hear argument first this morning in No. 02-811, Jeff Groh v. John… Joseph R. Ramirez.

Mr. Cordray.

Richard A. Cordray:

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

I’d like to reserve 2 minutes of my time for rebuttal.

This case concerns a mistaken description on the face of a judicial warrant that the court of appeals held deprived Agent Groh of qualified immunity, subjecting him to personal liability for damages in this Bivens action.

The Ninth Circuit reached this result despite the fact that the record here shows Agent Groh’s manifest good faith and reasonable course of conduct, including three key points.

First, the record shows that the affidavit and application submitted to the magistrate were sufficient and comprehensive.

Second, the magistrate personally reviewed and approved the application and expressly referenced the affidavit in the warrant he issued.

And third, the search as executed conformed to the limits set out in the affidavit and–

Sandra Day O’Connor:

Mr. Cordray, what does the Constitution provide specifically about this?

Richard A. Cordray:

–The Constitution provides that individuals will not be subject to unreasonable searches and seizures and that warrants will not issue except upon probable cause, and stating with particularity the items to… place to be searched, items to be seized.

Sandra Day O’Connor:

With regard to that last phrase, why don’t we just apply it?

Richard A. Cordray:

I think you do apply it in this case and this warrant here–

Sandra Day O’Connor:

But the warrant refers to the house.

Richard A. Cordray:

–Yes.

Sandra Day O’Connor:

It doesn’t list anything that they were searching for.

Richard A. Cordray:

The warrant itself… and if we turn to the petition for certiorari appendix, page 26a, specifically references the affidavit.

The affidavit, application, and draft warrant form were submitted to the magistrate as one package.

They were reviewed by the magistrate and resulted in an issuance of authority to search–

Sandra Day O’Connor:

Who prepared the warrant?

Richard A. Cordray:

–The draft of the warrant form itself was done initially by Agent Groh.

It was then signed and executed by the magistrate who approved it.

Sandra Day O’Connor:

Well, but on its face it referred to the house, not the items being looked for.

Richard A. Cordray:

It did, and that’s the mistaken description on the face of the warrant.

If you look at the application and–

Sandra Day O’Connor:

Well, you know, why not just apply the constitutional provision?

I mean, why couldn’t the agent be responsible for checking the warrant?

Richard A. Cordray:

–Well, I… I think there’s two questions there.

I think if you… if you apply the constitutional provision here, the warrant here specifically references the affidavit.

The magistrate says, I am satisfied, page 26a–

Sandra Day O’Connor:

But the affidavit was not attached to the warrant.

Richard A. Cordray:

–It was attached to the warrant, accompanied the warrant when… when the materials went to the magistrate for approval… it was–

Sandra Day O’Connor:

Yeah, but not… not when it was taken to be executed.

Richard A. Cordray:

–It… it also accompanied the warrant when the officers were briefed on the nature of the search.

It did not accompany the warrant at the scene because it was placed under seal by the court, which is done routinely in many cases for… for a variety of important law enforcement purposes.

But here–

Anthony M. Kennedy:

It… it… it seems to me that at… at some point in this analysis of… and specifically on the point that you’re addressing with Justice O’Connor… that you have to confront the language in… in Leon in which the Court said, depending on the circumstances of the particular case, a warrant may be facially… so facially deficient that it cannot comply with the Leon rule.

I was reading your… your brief and kind of waiting with suspense for you to address this point and it only comes up at the last few pages of the reply brief and you say it’s a dictum.

I think you have answers to the… to the point, but it seems to me rather central for what you’re discussing right here.

This was in one sense of the word facially deficient, no… no question about that.

Richard A. Cordray:

–Yes, although this Court has–

Anthony M. Kennedy:

And it might be that the Sheppard case is what helps you, but–

Richard A. Cordray:

–I think it does, Your Honor.

The Sheppard case makes clear… footnote 7, the Court says that if the warrant says, has some sort of suitable words of reference, see attached affidavit or see affidavit, that you then can move beyond the four corners of the paper itself and look to the materials that are part of the document or your record in front of the magistrate that are subject to subsequent judicial review, and the contents of the affidavit can inform the contents of the warrant.

Anthony M. Kennedy:

–Mr. Cordray–

–Well, did… did the warrant here and the warrant in Sheppard, were they on all fours insofar as a cross-reference?

Richard A. Cordray:

They were on all fours in two respects.

First of all, the warrant in Sheppard was facially defective.

It said that you would search for controlled substances.

In fact, they were searching for evidence of homicide investigation.

Anthony M. Kennedy:

Right, almost as bad as the mistake here.

Richard A. Cordray:

Yeah, in… in some ways worse, because it specified the search for different evidence.

Here at least on the face of the warrant it’s clear that there’s some sort of discrepancy, and you can inform that by looking at the affidavit–

Anthony M. Kennedy:

But did the Massachusetts case have a cross-reference to an affidavit even though the affidavit wasn’t appended?

Richard A. Cordray:

–It did not, in fact, and the Court said that if it had contained some sort of cross-reference, then you could inform the contents of the warrant from the contents of the affidavit.

That’s what we believe–

David H. Souter:

But doesn’t it make sense to assume that the cross-reference has to be capable of informing of what is left out?

And in this case, number one, there is nothing attached to the warrant.

No one reading the warrant could possibly figure out what within this house was… was being searched for.

Richard A. Cordray:

–I think that’s–

David H. Souter:

And once again I guess I go back to Justice O’Connor’s question.

Why don’t we apply the… the Fourth Amendment the way it’s written, and it says that the warrant shall particularly describe, not some other document under seal.

Richard A. Cordray:

–I… I think that that’s not true in the important respects under the Fourth Amendment.

The affidavit was part of the documents given to the magistrate for prior judicial approval–

David H. Souter:

The Fourth Amendment says it’s the warrant that is supposed to particularly describe, not documents given to a magistrate.

Richard A. Cordray:

–What I’m saying is there are three different potential times that matter here.

One is prior judicial approval of the search.

The warrant and application and affidavit were all together to the magistrate.

Second, in informing the officers of how to conduct the search, which they did here in accordance with the constraints, the… the material was provided to the officers.

The third question is whether the homeowner at the scene has some independent constitutional right to see the warrant and the supporting materials before a search can proceed.

This Court has never held that that’s a constitutional requirement and would be flatly inconsistent with criminal–

David H. Souter:

Whether… whether the homeowner has the right or whether the point is to make sure that the officers executing the warrant can check what’s in front of them and find out how far to go, the fact remains that the Fourth Amendment says the warrant is supposed to particularly describe.

This didn’t, it had no document appended to it that did.

Richard A. Cordray:

–That’s not correct, Your Honor.

This warrant specifically references the affidavit and the affidavit accompanied to the magistrate and to the officers before they searched–

David H. Souter:

It may refer to it, but if it’s not there, nobody can figure out what it says.

Richard A. Cordray:

–Well, they can, in fact, because the documented record before the magistrate allows posterior judicial oversight of how the search–

David H. Souter:

Not when the police are at the scene they can’t.

Richard A. Cordray:

–That is correct.

At the scene… the Ninth Circuit made a fundamental flaw in its opinion.

It assumed that the Fourth Amendment is about allowing homeowners at the scene to–

David H. Souter:

It doesn’t have to make that assumption in… in order to apply the Fourth Amendment as written.

It could perfectly well make the assumption that the point of the Fourth Amendment description was to make sure that the officers at the scene knew how far they could go.

Richard A. Cordray:

–Correct.

And they had the warrant, affidavit, and application–

Ruth Bader Ginsburg:

But there’s some might not… some might not have been like the officer here, like Officer Groh, might not have even seen the attached affidavit.

On the face of this, this does look like the hated general warrant.

It says, here’s a house and there’s no bounds at all, so it looks like this is exactly what the Fourth Amendment was getting at.

And with respect to Sheppard, I had a question, maybe you can straighten me out on that.

Sheppard said the good-faith exception applies, but to apply… apply an exception, wouldn’t you need to have a Fourth Amendment violation in the first place?

Richard A. Cordray:

–This was a subject of discussion in Sheppard.

The separate opinion by Justice Stevens states specifically, and presents an argument for why the Fourth Amendment was not violated in that case.

The majority was willing to assume a violation on the record before it, didn’t specifically decide the Fourth Amendment question but assumed such a violation and went on to apply the good faith–

Ruth Bader Ginsburg:

So that… that case doesn’t answer the question, was there a Fourth Amendment violation?

Richard A. Cordray:

–I would agree with you that–

Antonin Scalia:

And why do you have to ask that question?

Richard A. Cordray:

–Beg your pardon?

Antonin Scalia:

Why do you have to ask that question?

Why do you have to establish, as you seem to be trying to establish, that this complied with the Fourth Amendment, which, if you read the Fourth Amendment, it clearly didn’t.

But what we’re discussing here is what is the remedy for its failure to comply with the Fourth Amendment, aren’t we?

Richard A. Cordray:

Well–

Antonin Scalia:

If… if I disagree with you that there… that there is a Fourth Amendment violation, do I have to find that it was proper as a remedy for that violation to hold… to hold this agent liable?

Richard A. Cordray:

–Certainly not, Your Honor, and I do agree with Justice Ginsburg’s point that Sheppard is probably more germane to the qualified immunity inquiry here than perhaps to the Fourth Amendment inquiry, given that the Court did not explicitly decide the Fourth Amendment issue in Sheppard.

But here, we would say that qualified immunity applies on two distinct grounds.

First, the Court has adverted in Malley v. Briggs, it wasn’t a specific holding, that if in fact the conduct of the officers is such that the good-faith Leon exception would apply in a criminal suppression hearing then, in parallel, qualified immunity should apply in a civil action against the officer.

That would be one ground for finding qualified immunity here and a sufficient ground.

In addition, if the law was not clearly established at the time that… a number of points that the Ninth Circuit decided for the first time in this case… that the warrant cannot, by suitable words of reference, incorporate the contents of the affidavit.

Number two, that the officers are obliged constitutionally after a warrant issues to double check the magistrate’s handiwork and correct any errors that they find.

And number three, that they cannot at the scene, as Agent Groh attempted reasonably to do here, inform the homeowner of exactly what the nature of the search was.

It was done verbally in person with the wife and over the telephone with the husband, and–

William H. Rehnquist:

Well, you… you say, the Ninth Circuit said they couldn’t inform the homeowner?

Richard A. Cordray:

–Said that that would not be sufficient to… to correct–

William H. Rehnquist:

Yeah, it didn’t say that they couldn’t have, but it’s… it’s… the Ninth Circuit said that the homeowner had a right to be shown the warrant, I take it, did it not?

Richard A. Cordray:

–Didn’t specifically hold that, but certainly seemed to presume it, that the… not only the warrant but all the supporting materials so that the homeowner could exercise some self-help right at the scene, block the officers, and attempt to interfere with their execution of–

William H. Rehnquist:

The Ninth–

–What do the Federal rules say about the… what the police or the officers have to do with the warrant in the search of a house?

Richard A. Cordray:

–Criminal Rule 41, which this Court has said incorporates or is certainly consistent with Fourth Amendment principles, says that a warrant needs to be left at the scene after a search is completed if property is taken along with an inventory of the property.

There’s no suggestion the rule does not require the warrant be given to the homeowners at the outset as long as they’re reasonably informed–

David H. Souter:

Doesn’t it talk… or correct me if I’m wrong… about serving the warrant?

Richard A. Cordray:

–It… it talks about a number of things.

Richard A. Cordray:

It talks about obtaining a warrant, keeping a documentary record in front of the magistrate so that subsequent judicial review is available.

It also talks about executing the warrant at the… at the scene.

If the Court wishes to refer to Criminal Rule 41, it’s been amended a couple of times, I believe the current version is 41(f)–

William H. Rehnquist:

Where is that in the papers?

Richard A. Cordray:

–It’s not in the documents here.

I apologize, Your Honor.

But 41(f)(3), it’s referred to in the Solicitor General’s brief and in our brief, is that they must give a copy of the warrant, receipt for the property taken, after the search is completed, but not before the search begins, and that makes a great deal of sense.

The Fourth Amendment is about making sure that there is… there is prior judicial authority to proceed with a search and that there is documentation available later to check the search and make sure it did not exceed the authority–

John Paul Stevens:

You mentioned the later documentation, but isn’t there an interest in letting the homeowner know that the man has authority to make the search?

Richard A. Cordray:

–Yes, which Agent Groh–

John Paul Stevens:

So, shouldn’t… shouldn’t he have to display it if… if requested?

Richard A. Cordray:

–I believe that if… if he’s asked for the warrant before he can enter, what would be reasonable in the circumstances would be to show the warrant.

John Paul Stevens:

And he’d have a duty to do that?

Richard A. Cordray:

I… I believe that in many cases that would be the most reasonable thing, and therefore perhaps the Constitution would have required it.

William H. Rehnquist:

That’s not my question.

Would he have a duty to do that?

Richard A. Cordray:

I’m not certain of that, but I think it would be better practice and reasonable conduct.

Stephen G. Breyer:

Go back–

–It doesn’t say it in the rule at all.

Could you go back to Justice Scalia’s question?

Richard A. Cordray:

Sure.

Stephen G. Breyer:

I thought that this was a very simple case.

Somebody really mucked up the warrant, okay?

They made a technical mistake.

Instead of saying, seize… look for and seize some guns, they said, look for and seize a house, all right?

Now, nobody could think that that made any sense.

Richard A. Cordray:

Yeah, except that before printing the affidavit–

Stephen G. Breyer:

Nobody.

No… you don’t think it does, I don’t think it does.

So you can say one of three things: A, that the warrant is constitutional, which is what you’re arguing, which is a little tough, because I guess if we said this was constitutional, we’d have to say a warrant is constitutional.

Stephen G. Breyer:

If it says seize and then it says I’m not going to tell you, look in vault three of the Kremlin, you know, to see what we’re supposed to seize.

I mean, that’s a tough route that you’re taking.

The second route is what Justice Scalia suggested, which is to say, well, it isn’t really his fault, the search team leader, because he was in good faith.

For me, that’s tough because I… if you cast his eye on this piece of paper and just glanced at it, he would have seen it was faulty.

Route three is to say, they’re right in their lawsuit, let them bring it, damages, by the way, are going to be pretty low, okay?

Now you explain to me why it should be route two, which is Justice Scalia’s question, rather than just route three.

Richard A. Cordray:

–Sure.

This Court said in Malley that if in fact the officers make a mistake of fact in good faith that, if in fact Leon would apply to avoid suppressing that evidence in a criminal prosecution, the parallel should apply and qualified immunity would be appropriate in a civil action.

I think that that is what makes the most sense of the objective–

Stephen G. Breyer:

Now… now tell me why, because as I’ve made my point, it sounds to me that this man did not behave sensibly, because if he just looked at the piece of paper he would have seen in 3 seconds it says, seize the house, and we’re not out here to seize the house, we’re out to seize some guns.

Richard A. Cordray:

–The magistrate–

Stephen G. Breyer:

So it wasn’t like a minor, common mistake–

Richard A. Cordray:

–The magistrate–

Stephen G. Breyer:

–so why was that reasonable?

Richard A. Cordray:

–The magistrate also looked at this piece of paper and failed to notice the error.

The materials were made–

David H. Souter:

So two people–

–How do we know that the magistrate did look at the piece of paper?

Richard A. Cordray:

–Because he signed the piece of paper.

David H. Souter:

Any magistrate who looked at that piece of paper would say your warrant… your warrant application or the form you’ve given me does not indicate what you’re searching for, unless you really are going to put the house up on a flatbed truck and take it away, which we know you’re not.

It’s… it’s… the obvious, I think the obvious probability is that the… the agent did not read what his secretary had typed in and the magistrate did not read what the agent presented to him, and this sometimes happens.

I’ve had it happen to me.

You hand the magistrate the application and he says, where do you want me to sign?

Isn’t that probably what happened?

Richard A. Cordray:

It’s hard for me to know exactly what happened subject with the magistrate.

We do know that he signed the warrant.

We also know that he signed the application, which was presented to him, that had the particular description of the items to be seized.

That’s at page 28a of the appendix.

Antonin Scalia:

Maybe he should be liable too.

I mean, except for judicial absolute immunity, I… I don’t know, you say, you know, the magistrate’s just as bad.

Antonin Scalia:

What does that prove?

It doesn’t prove anything.

Richard A. Cordray:

Let me bore in on the qualified immunity issue, if I may, on both counts.

First–

Ruth Bader Ginsburg:

Before you do that, just one preliminary question.

Justice Scalia suggested earlier you could go right to qualified immunity to get all the rest, but I thought the… that this Court’s precedent said you have to make a ruling, did it violate the Fourth Amendment, before you get to qualified immunity.

Richard A. Cordray:

–That’s how we read the Court’s cases, at least to the last 6 or 7 years.

It’s been a pretty consistent approach.

Antonin Scalia:

That may well be, but you don’t have to argue it.

My point was that you–

Richard A. Cordray:

That’s fine.

Antonin Scalia:

–didn’t have to argue it–

Richard A. Cordray:

That’s fine.

Antonin Scalia:

–not that we don’t have to decide it.

Richard A. Cordray:

That’s fine.

Let me… let me say, under Massachusetts v. Sheppard, this is clearly in good faith here.

Qualified immunity should apply.

Why?

Because this agent prepared all the materials, submitted it all to the magistrate, is the one who personally had the interchange with the magistrate back and forth, whereupon the magistrate approves the search and executes a warrant.

He did not catch the error, that’s true.

Stephen G. Breyer:

He didn’t have a bad motive?

Richard A. Cordray:

No, I mean that he… he acted in good faith, objectively, reasonably on the course of the record.

He… he knew what search he was asking for.

He submitted those materials.

There’s a particular list of the items to be seized in the application and in the affidavit.

It was omitted from the warrant.

That’s why we’re here.

Nonetheless, this is exactly the kind of case, and many court of appeals have held this, in which Leon would apply in a criminal suppression hearing.

Also, the Ninth Circuit here reached this result by announcing a new rule.

They said an officer has a duty to proofread a warrant even after it’s issued by a magistrate.

Richard A. Cordray:

They had rejected that rule in Marks v. Clarke just a year earlier, and now they reversed ground and they announce a new rule.

That is classically the basis for qualified immunity under this Court’s strong precedents that the… the officer cannot be held to predict the future course of constitutional law.

Should… do they know there’s a Fourth Amendment?

Do they know it contains a particularity requirement?

Presumably they do.

But do they know how that applies in all circumstances and that they have a duty to proofread a warrant even though they’ve made out the materials, they’ve submitted to the magistrate, they’ve been there with the magistrate and gotten the approval as they assumed that they saw it?

Massachusetts v. Sheppard very strongly says that… that we do not hold the officers to have a further duty in that instance.

If you hold it in this case for the first time and anew, the qualified immunity at a minimum should be appropriate for the officer here.

If I may reserve the balance of my time.

William H. Rehnquist:

Very well, Mr. Cordray.

Mr. Schlick, we’ll hear from you.

Austin C. Schlick:

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

This Court has rejected a technical perfection standard in construing a warrant.

In Steele v. United States, the warrant authorized a search of 611 West 46th Street.

This Court determined, in light of the circumstances of the case, including the affidavit that was submitted to the magistrate in that case, that the search properly was conducted for 609 West 46th Street, as well as 611, and the rules… the rules stated in Steele v. United States is that a warrant satisfies the particularity requirement of the warrant clause if an officer executing a search could determine with reasonable effort what the magistrate authorized.

Stephen G. Breyer:

So do you say this is just a technical mistake?

If it said, go to the Empire State Building and seize the Empire State Building, that’s just a technical mistake?

I mean, they may have made it for a technical reason, but you’d have no idea what they’re supposed to look for.

Austin C. Schlick:

And it… the question in that case, Your Honor, would be, is it clear what the magistrate authorized?

In this case–

Stephen G. Breyer:

No, it isn’t clear.

How is it clear?

Austin C. Schlick:

–In… in that case, if it is not clear, then there is a violation of the particularity requirement–

Stephen G. Breyer:

But you’re saying here it’s clear because the affidavit said it, but the affidavit’s locked away somewhere and nobody can look at it.

Austin C. Schlick:

–No, it’s… it… is… in fact it was unsealed, and typically when warrants are put… when applications are placed under seal, there’s a provision for unsealing the application upon the indictment or after a period of time, or a motion to unseal can be brought, which could have been done in this case, but in fact, the motion was brought by the Government in the… in the first place.

Stephen G. Breyer:

So, in fact, what a homeowner’s supposed to do is if the warrant… he looks at it, by the way, it’s blank, it’s blank.

And the officer says, don’t worry, I’m not going to tell you what I’m looking for, but just go somewhere to a court house and make a motion to unseal an affidavit and that will solve the problem.

Is… is that what the Fourth Amendment is about?

Austin C. Schlick:

The Fourth Amendment does not protect, contrary to the Ninth Circuit’s belief, the Fourth Amendment does not protect the… a supposed interest in reviewing the warrant during the search.

As Mr. Cordray explained, that’s inconsistent with Rule 41.

Austin C. Schlick:

It also would render impossible electronic surveillance.

The… there also would be a serious safety concern.

We simply do not want citizens contesting at the scene of the search whether the scope… whether the scope of the search is lawful.

It is safer for everyone–

Anthony M. Kennedy:

Well, I don’t want… the… the court of appeals seemed to envision some sort of a collaborative proceeding where there’s a conversation between the officers executing the warrant and the homeowner and… and that… that seemed to me without foundation.

On the other hand, I suppose the homeowner has a right to look at the warrant and to comment… to comment on it.

Austin C. Schlick:

–Under Rule 41, the right attaches when property is seized, as part of the receipt for the property that’s seized.

There may, as with–

Anthony M. Kennedy:

Well, I… I know, but there’s a knock on the door and the policeman says, I have a warrant.

And I say, may I see it?

He says, well, oh no, you can’t see it until I leave.

Is that… is that your position?

Austin C. Schlick:

–No, again that would be analyzed under the law of knock and announce, and it may be reasonable under the circumstances–

Anthony M. Kennedy:

If they have a warrant, do I have a right to read the warrant?

Austin C. Schlick:

–And the question would be–

Anthony M. Kennedy:

The homeowner.

Austin C. Schlick:

–If… if the homeowner denied entry until a copy of the warrant is provided, the officer would be faced with the question, is this a constructive denial of entry?

Is there some exigency for getting into the property?

And it may be reasonable under the circumstances–

Anthony M. Kennedy:

No, there… no, there… there’s no exigency because there’s only one person there and he’s at the door and that person says, I’d like to read this warrant.

Does he have the right to do that before the officer enters?

Austin C. Schlick:

–If there were no exigencies, then ordinarily the reasonableness principle probably would require that, but the purpose of the particularity requirement, it’s very clear, is to ensure that the search is conducted in accordance with what the magistrate authorized.

Antonin Scalia:

Why isn’t that in our rule if… if you’re willing to concede that that’s a constitutional requirement?

Austin C. Schlick:

We… we are not conceding it’s a constitutional requirement.

We’re saying that under certain circumstances–

Antonin Scalia:

Well, that… you say… you say it’s part of the reasonableness requirement to show it to the homeowner if he demands it.

Austin C. Schlick:

–Under… under circumstances where there is no exigency where the request to see the warrant–

Antonin Scalia:

Under normal circumstances, when there is no exigency.

Under normal circumstances, if the homeowner demands to see the warrant, you think it is constitutionally required that you show the homeowner the warrant?

Austin C. Schlick:

–If… if the choice… if the homeowner denies entry, there’s no exigency, and the officer’s faced with the choice of break down the door or show the warrant, then reasonableness may require showing the warrant.

Austin C. Schlick:

But… but no, there is no general… there is no general reasonableness requirement, and as I’ve said, this Court’s cases, cases such as Dalia and electronic surveillance contexts make clear–

Antonin Scalia:

Your… your point about electronic surveillance seems to me quite… quite forceful.

You do… you do not have to give… give the person who’s being electronically surveilled a… a warrant beforehand.

He has no opportunity to see what’s… what’s being done.

I don’t see why the constitutional principle would differ with regard to a… to a physical search.

Austin C. Schlick:

–Our position, Your Honor, is there is no general requirement of providing a copy of the warrant, and the Ninth Circuit asserted an interest in reviewing the warrant during the search is simply not protected by the particularity requirement–

David H. Souter:

But you… but you are saying that in… in circumstances, you gave an example, the reasonableness requirement would result in an obligation to show the warrant.

Austin C. Schlick:

–It… it may under circumstances, but not as a general rule.

David H. Souter:

Well, let’s… let’s take… let’s… let’s go one step further than the… than the hypothetical you… you were dealing with a moment ago.

Let’s assume the homeowner comes to the door and says, I’d like to see the warrant.

And they say, well, here it is, and the homeowner says, I… I’d like to read it, and the police say, no, you can’t read it.

And the homeowner says, look, I’ll give you whatever you’ve got a right to seize under this warrant.

You don’t have to tear the house apart, just let me see what it is you want.

The police answer, no, we’re not going to tell you, we’re going to go through the house ourselves.

Do you think that would be reasonable execution of the warrant?

Austin C. Schlick:

Yes, I… I think it… it… in most circumstances would be reasonable, yes, that the–

David H. Souter:

They would have a right to… to… to tear the house apart when the homeowner stands at the threshold and says, tell me what you’ve got a right to seize and I’ll get it for you.

Austin C. Schlick:

–The… the question… the question in that case would be whether the search was conducted within the scope of the warrant.

If so, it would be a valid search and–

David H. Souter:

The question is whether it’s a reasonable search, and that includes an… an issue about the manner in which the warrant is executed.

Austin C. Schlick:

–A… a search would not be rendered unreasonable by virtue of a discussion between the officers and the citizen.

The question would be how the search was conducted.

I would like to discuss the law–

William H. Rehnquist:

Well, I… I suppose that the officer doesn’t have to take the word of the homeowner either that I’m getting you exactly what you want, you know, if the guy’s charged with some sort of fraud, maybe he’s going to continue.

Austin C. Schlick:

–That… that’s true and, of course, the things that are seized may not conform to the warrant because of the plain view rule that the officer may seize things that aren’t covered in the rest of the warrant.

David H. Souter:

But–

Austin C. Schlick:

Now, under the law of qualified immunity–

Ruth Bader Ginsburg:

–Mr. Schlick, as far as the rule is concerned, the rule… the heading is receipt, so the rule… rule doesn’t address this problem.

It goes to what you do in inventory and then you give a receipt, if you’re going to take away property give a receipt, and by the way, give the warrant with it.

So I don’t think we can read this rule as saying you don’t have to give the warrant if the homeowner requests it.

Ruth Bader Ginsburg:

It just says if you’re taking away property then you give a receipt, and part of the receipt is the warrant.

Austin C. Schlick:

–The only requirement to providing the warrant is if property is taken away.

Agent Groh also is protected from suit under the law of qualified immunity.

There was… there’s no clearly established law that requires an officer to undertake particular procedures in the preparation of a warrant.

The Ninth’s Circuit novel proofreading requirement had not even been conceived at the time of this search.

In addition, the law is in disarray concerning the circumstances under which an affidavit or an application may be considered in construing the warrant.

Off… Agent Groh also was operating under a reasonable mistake of fact.

Anthony M. Kennedy:

But if he had been on the way to the residence and 3 minutes before he got there, the residents say, oh, this is a terrible mistake here, would he have the obligation to turn around and go back or have somebody bring him the affidavit out?

Austin C. Schlick:

Under Steele, the question would be whether it was sufficiently clear what the magistrate authorized.

We believe under these circumstances it was clear, so he would not have had that obligation.

But as a practical matter, and this is very important, officers are not going to conduct searches when there is a question about the scope–

Anthony M. Kennedy:

So… so that… so that even if he sees the mistake before he makes the entry on the premises, he can… he can proceed?

Austin C. Schlick:

–If it’s sufficiently clear under Steele, yes.

Anthony M. Kennedy:

And under these facts?

Austin C. Schlick:

Yes, yes.

And… and if… and again, this goes to the purpose of the particularity requirement, which is ensuring that the search is conducted in accordance with what the magistrate authorized.

If that is… if that is satisfied, then there is no constitute… then there is no constitutional violation and there’s no constitutional interest in having the officer delay the search.

But again, as a practical matter, the officer is going to want to be sure that suppression remedy–

Anthony M. Kennedy:

Well, but… but then… but then you’re saying this warrant is sufficient?

Austin C. Schlick:

–Yes.

The–

Anthony M. Kennedy:

So… so… you want us to write an opinion to say that we can have warrants like this all the time and there’s no problem.

Austin C. Schlick:

–Again, that’s the constitutional rule, but as a practical matter, officers are not going to take risks when they’re… when they don’t face an exigent circumstance–

Anthony M. Kennedy:

Talking about a constitutional minimum… you say that a constitutional minimum… this warrant would… is… is adequate under the Fourth Amendment in all circumstances?

Austin C. Schlick:

–Under these circumstances, which include particularly the references in the warrant, Agent Groh’s application and affidavit, which include the clear lift… list… in his application and the magistrate’s signature on the warrant without making any edits.

This is not in the typed version that we have, but if you look at the actual warrant form, which is document number five in the district court, you can see that the… that the magistrate signed the warrant form and it’s a typed form on which there are handwritten notes, so… so–

Stephen G. Breyer:

I did see it.

I did look at that and it occurred to me at that moment that all you’re asking people to do is just glance at the document quickly to catch obvious mistakes, which this is.

Austin C. Schlick:

–And… and in this case, if Agent Groh had glanced–

William H. Rehnquist:

Thank you, Mr. Schlick.

William H. Rehnquist:

Mr. Kozakiewicz, we’ll hear from you.

Vincent J. Kozakiewicz:

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

The Ramirez home was searched pursuant to a nonsensical warrant.

They were deprived of the protections of the essential function of the warrant, which this Court has said is to assure the individual whose property is being searched and seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.

The particularity requirement has–

Antonin Scalia:

Where… where do… where do we say that?

Did we say that in a case that–

Vincent J. Kozakiewicz:

–Yes, Your Honor, you say that in… it was actually quoted in the McGrew case.

It was stated in Illinois v. Gates and in citing Chadwick at page 9 in California v. Acevedo.

Antonin Scalia:

–If… if… if that is indeed the purpose of the warrant, isn’t it passing strange that the rules relating to warrants do not require that the warrant be served, be presented to the individual, unless and until something is taken, at which point the warrant has to be left plus a list of the things taken?

I mean, I just find it remarkable that our rules of criminal procedure would not require the service of a warrant, and indeed, if that is the purpose of a warrant, what do you do about warrants for electronic surveillance, for wiretaps?

Does… do… do you have to serve the object of the wiretap with a warrant saying, we’re going to be tapping your phone, so he’ll say, oh, thank you very much, you know, I’ll use another phone.

Vincent J. Kozakiewicz:

With… with respect to a wiretap, you have some exigent circumstances there.

What the… what the Ramirezes were facing were the search of their home–

Antonin Scalia:

It’s not… what’s exigent… what’s exigent about it?

Not necessarily, I–

Vincent J. Kozakiewicz:

–There’s no necessarily… there’s… with a wiretap there’s no invasion, a physical invasion of the home and the rummaging through their personal belongings.

Sandra Day O’Connor:

–Counsel, I suppose you don’t have to take the position that there’s some right of the homeowner to examine the warrant before the officer is admitted to the home to win this case, do you?

Vincent J. Kozakiewicz:

That’s true, Your–

Sandra Day O’Connor:

Why are you taking that position then?

That gets you into a lot of hot water, because it hasn’t been clearly defined.

I mean, the Ninth Circuit seemed to place a lot of weight on the point, but I’m not sure it is necessary for you to prevail in this case.

I’d like to hear your views.

Vincent J. Kozakiewicz:

–Your… Your Honor, that… that is correct.

The… the warrant was… was facially invalid, it was plain to see, but the… the Ninth Circuit has established a very… clearly established rules to say that the warrant required a particular description.

We are willing to… if it’s not contained within the four corners of that document… to go be… to look at documents outside the four corners, provided it meets certain criteria, that being it is specifically referenced into the… into… in the warrant itself and somehow accompanies or is attached to the warrant.

Under those circumstances it would become part of the warrant and they would recognize that, and the court went on to say that that has… was the rule in the Ninth Circuit for a long period of time.

Agent Groh should have known about that, and it was… it was the clear law and therefore a constitutional violation took place and he did not… could not have good faith in his belief that he complied with that requirement of the warrant.

Ruth Bader Ginsburg:

Why, when McGrew didn’t issue until 6 months after the conduct in question?

McGrew set the circuit law for the… at least for the Ninth.

Ruth Bader Ginsburg:

It said that the executing officer has to read the warrant, but that wasn’t on the books when this search occurred.

Vincent J. Kozakiewicz:

Your Honor, McGrew was decided 6 months after the search in this case.

However, the events that took place in McGrew happened before this case.

If McGrew had never occurred, this would have been–

Ruth Bader Ginsburg:

But what made the law clear in the Ninth Circuit was not the timing of the McGrew search, but the ruling of the Ninth Circuit.

Vincent J. Kozakiewicz:

–The… the McGrew decision said that it was clearly established at… through their… their prior decisions of the requirement that the warrant refer to and either have attached to or accompany the affidavit if you wanted to… to use it as a basis to meet the particularity requirement, and it… it looked at other cases besides just that one.

This has been the law in this circuit for over… over a decade.

Stephen G. Breyer:

I see that there is a serious question, I think, underlying what you’re saying.

You’re saying that this is really a question of cross-reference.

The Constitution requires the warrant to describe the things to be seized.

Now, what the Government says is this… we have permitted in cases that requirement to be fulfilled where the warrant piece of paper is perhaps blank or erroneous, but it cross-references another document.

And you’ve said, it can do that where that other document is physically attached or, let’s say, at least in the car.

There was one case that said in the car, but not where it’s in a vault someplace.

And Justice Scalia, I think, asked why… why is that?

Because if the purpose of the Fourth Amendment is not to alert the homeowner, but simply to be certain there is a check on the searcher, why have the cases come out the way you’ve just described them?

Vincent J. Kozakiewicz:

Because it’s a… not to have that warrant or the supporting documentation to the warrant present to meet the particularity requirement is an opportunity for abuse.

Stephen G. Breyer:

What kind of abuse?

Vincent J. Kozakiewicz:

To be abuse to… to the… that the officer can come to the home, say I’m planning… I’m planning to search for… for something, ransack the house, find nothing, leave no warrant, and the person has no idea of the legal authority of… of why the officer was there, what he was doing there.

He could have the opportunity to decide he wants to go in and rummage through the personal papers and–

Ruth Bader Ginsburg:

But he didn’t, and that goes back to a question that Justice Scalia raised earlier.

Assuming there is a violation of the Fourth Amendment, you’re bringing a Bivens action, and if we recall the facts in Bivens that… the police acted as rough as can be, they manacled the man, they told him they were going to arrest his wife and children, they hauled him off to jail and they strip-searched him.

Nothing like that happened here.

Vincent J. Kozakiewicz:

–That’s correct, Your Honor.

However, Bivens 19… in 1983 action, depending upon whether the actor is State or Federal agent, follow the same… same line of reasoning of whether… was the action a violation of constitutional right and was it objectively reasonable.

Ruth Bader Ginsburg:

But the damages here, nothing happened here that would not have happened if the right portion of the application had been copied into the warrant.

Vincent J. Kozakiewicz:

The… the… the damages was to… to the… the homeowner’s ability to be assured of the authority of the officer to be here.

Anthony M. Kennedy:

Well, I’m not sure about that.

Does the homeowner say, well, I’d like to… this is a long warrant, I have to sit down and read this, and they sit down by the fire and read the warrant and discuss it?

That’s not the way it works.

Vincent J. Kozakiewicz:

Under the circumstances of this case, there was no opportunity ever for the… the homeowner to… to know what–

Anthony M. Kennedy:

Well, but we’re asking what the general requirement is.

Once… once the homeowner finds that the police have the authority to enter, then don’t the cases teach us that the purpose of the warrant is to control the discretion of the officer, not the knowledge of the homeowner, and incidentally, I think you might be able to read Rule 41 as saying that when an officer leaves he has to give a copy of the warrant whether he takes anything or not.

I’m… I’m quite sure that that’s the right interpretation.

Vincent J. Kozakiewicz:

–Well, you’re–

Anthony M. Kennedy:

Let’s assume that that’s done.

I don’t think the homeowner has the right to monitor the search.

There’s… there’s no authority for that.

The Ninth Circuit seemed to say… think that.

Vincent J. Kozakiewicz:

–Yes, Your Honor, the Ninth Circuit said that and, in fact, in the Gant case, which was cited in… in McGrew, they said that there’s a… a duty of the officer under the rule to provide the homeowner with the warrant prior to leaving the scene.

Antonin Scalia:

Under the rule, they said?

Under the rule?

Well.

Vincent J. Kozakiewicz:

Yes, Your Honor.

Antonin Scalia:

That’s not true, is it?

I mean, you… you can create such a duty–

Vincent J. Kozakiewicz:

No.

Antonin Scalia:

–but it doesn’t appear in the rule at all, does it?

Vincent J. Kozakiewicz:

The… the Gant decision that referred to the… to the rule was looking at the… the argument was made in that case by the Government that the rule only required it, and said that since the… the Katz decision says that it… the rule does not invariably require it to… the Government to serve the warrant, that it must usually require that it be done.

Ruth Bader Ginsburg:

Doesn’t say anything at all about warrant when no property is taken.

As far as… I have the text of Rule 41 in front of me.

It talks about leaving the warrant when you’ve taken property.

There’s not one word in this that I can see about leaving the warrant when you haven’t taken property.

Vincent J. Kozakiewicz:

That’s correct, Your Honor, and that’s the… the real problem in this… in this case, when if… if there is no duty to leave a warrant, as suggested by the… the United States in their… their brief when no property is taken, then it’s the invitation to abuse that I… I talked about earlier.

David H. Souter:

Well, but do you… do you have to… do you have to maintain that position to win your case?

I mean, do you have to get us to accept your… that… that proposition in order to win your case?

Vincent J. Kozakiewicz:

No.

I think the plain language of the particularity requirement is all that is needed and this does not meet the particularity requirement.

Ruth Bader Ginsburg:

Can we get back to the question I think that you hadn’t completed your answer to before?

So, assuming that there is a violation of the Fourth Amendment, what harm to this family… I mean, the contrast with Bivens in that regard is stark, because the… the… what you recited, the same thing would happen if the warrant had copied the right paragraph of the application.

There was no rough stuff.

Vincent J. Kozakiewicz:

The damage is the fact that their constitutional right to have a… a properly executed and a properly written warrant prior to the invasion of the home.

Ruth Bader Ginsburg:

So–

–Of course, that’s really not what the Fourth Amendment says, is it?

It just… it doesn’t say you need… you need… I mean, surely there’s some play in the joints, isn’t there?

It’s… it categorically prohibits unreasonable searches and seizures, right?

Vincent J. Kozakiewicz:

Correct.

Antonin Scalia:

And then it goes on to say, and any warrants, you know, where you need a warrant shall particularly describe the… the person or place to be searched and the items to be seized.

But it doesn’t say categorically that you can’t… you need a warrant all the time, so there’s some play in the joints.

Why couldn’t we say that at least in this case where there was a good-faith attempt to get a warrant and where the affidavit would have justified a warrant, it is not the one thing that the Fourth Amendment prohibits, an unreasonable search and seizure, to go ahead with this defective warrant?

Vincent J. Kozakiewicz:

Because there was no effort on the part of Agent Groh to comply with that particular requirement, and that leads to the opportunity for abuse because he… there is no evidence in the… in the record to show that he had any… did anything to comply… to see that he had a warrant that met the particularity requirement.

Antonin Scalia:

But… but there’s nothing in the Fourth Amendment that requires a warrant, even for the entry into a home, and as you know of, many entries into homes are done without a warrant when there are exigent circumstances.

Now, if… if you can say that that is not an unreasonable search and seizure, why can you not say it is not an unreasonable search and seizure to proceed on the basis of a warrant that has a… a technical… clear technical defect, but nonetheless was sought and… and would have issued in perfect conformity with constitutional requirements.

Why does that make it an unreasonable search and seizure?

I can see that it makes it a search and seizure without a proper warrant as defined in Article IV… in the Fourth Amendment… but the Fourth Amendment does not require a warrant all the time.

Vincent J. Kozakiewicz:

It does not require a warrant all the time if there are exigent circumstances.

There were no exigent circumstances in this case.

Antonin Scalia:

Well, that’s not the only exception.

I mean, that’s one exception that… that we’ve developed.

Why can’t we say another exception is where you’ve done everything that is necessary to get a warrant, and the warrant you’ve gotten, yeah, it doesn’t really comply with the description of the warrant there, but still to proceed that way is not unreasonable search and seizure?

It’s mistaken but it’s not an unreasonable search and seizure.

Vincent J. Kozakiewicz:

Because I think the… that would trivialize the… the requirement of the particularity clause, because particularity as well as probable cause weigh into the… the general warrant situation and–

Ruth Bader Ginsburg:

Are you… you suggesting that maybe it was unreasonable?

Since there were no exigent circumstances this warrant could have been executed the next day for as far as we know from this record, to go back and say, oh my goodness, look at this, it’s a general warrant, I better get it particularized.

Vincent J. Kozakiewicz:

–That… that’s correct, and he… he should have done that, because the… the problem here is that there was… it was plain for everyone to see.

This was the… the Leon… the warrant that was envisioned in Leon that was so facially valid that no reasonable officer could rely on it–

Ruth Bader Ginsburg:

With respect to Leon, Mr. Cordray urged that if you would meet the good-faith exception, in any case where the good-faith exception would apply so the evidence isn’t suppressed, the officer would have qualified immunity.

Do you agree that that’s a… a proper equation?

Vincent J. Kozakiewicz:

–Only if there is good faith that the officer attempted to comply with the particularity requirement, because if there was good faith that there was probable cause, that does not supply the particularity any more than the oath and affirmation to say that this was oath and affirmation.

To have a valid warrant you need all legs of the stool, and the particularity requirement is one of those.

John Paul Stevens:

May I ask you a question about the–

John Paul Stevens:

–So what you are saying is not because the… the same reason it’s not a qualified immunity is the same reason it isn’t an unreasonable search.

It isn’t a reasonable search, isn’t a reasonable search, and there is no qualified immunity because he didn’t even glance at the document, and for the head man not to glance at the document is not good faith and is unreasonable.

If that’s your argument… as I guess you’re going to accept this now–

Vincent J. Kozakiewicz:

Yes.

Stephen G. Breyer:

–All right, fine.

I’d like to go back for one second to Justice Ginsburg’s… one of her initial questions, is, what is it you are seeking here?

A dollar in damages and an apology?

Because, after all, if you accept my argument, they would have just gone back and gotten a better warrant and it would have taken them a couple of hours and all the same thing would have happened.

So… so what… what is it you’re seeking in this lawsuit?

An apology and a dollar or something else?

Vincent J. Kozakiewicz:

We’re seeking money damages that a… a jury would–

Stephen G. Breyer:

Well, is there any way it could be more than a dollar?

Vincent J. Kozakiewicz:

–It… it would depend, Your Honor, on–

Anthony M. Kennedy:

What have you asked for in the complaint?

Vincent J. Kozakiewicz:

–We didn’t put… specify a dollar amount in the complaint.

Stephen G. Breyer:

Is there any way it could be more than a dollar?

I mean, you must have thought this through, because, after all, you have filed a complaint and they hired you and–

Vincent J. Kozakiewicz:

Yes, it is… yes, it is, Your Honor, because the trauma… the traumatization that Mrs. Ramirez went through by agents coming into her home and saying, we have a warrant to search for explosives–

Stephen G. Breyer:

–Is different from what it would have happened an hour later?

Different from what–

Vincent J. Kozakiewicz:

–Yes, yes.

Stephen G. Breyer:

–would have happened if they’d corrected the error and gone back and done the same thing–

Vincent J. Kozakiewicz:

That… that’s correct–

Stephen G. Breyer:

–because?

Vincent J. Kozakiewicz:

–Because there was that time frame, and in this case it was a continue of a time frame that she was under… under the fright of people being in her home, searching it, ransacking it, going… going through it.

There was… we’ve alleged in the complaint damage to personal property.

All this was done without her knowing and whether they had the right to be there, what they were looking for other than–

David H. Souter:

But I… I thought the facts say that they correctly… at least in the petitioner’s brief… they say that they correctly notified the homeowner about the purpose and objects of the search.

Vincent J. Kozakiewicz:

–That would be an oral notification, and there is no assurance given to the… through oral notification, he could make up anything he wants.

Antonin Scalia:

You think when the Fourth Amendment was adopted or when the English tradition that underlaid the Fourth Amendment was… was formed, most people could read a warrant?

Vincent J. Kozakiewicz:

I don’t know, Your Honor.

Antonin Scalia:

Then… then do you think the homeowners would have the right to exclude the constable until he could get somebody who was literate to read the warrant that the constable presented to him?

Maybe call his attorney and say, you know, there’s a warrant here I can’t read, can you come over and read it for me?

They didn’t have telephones.

I didn’t say call him by phone, Mr Chief Justice.

[Laughter]

His attorney lived… lived across the street actually.

I mean, this… this notion that this is part of the… of the warrant requirement, it seems to me, is based on a real misunderstanding of… people couldn’t read, most of them.

Vincent J. Kozakiewicz:

Well, that makes an assumption of what took place there.

In today’s society most people can read and Mrs. Ramirez can–

Antonin Scalia:

Well, we might… we… maybe we should add that requirement to the Fourth Amendment.

I assume we could amend the Fourth Amendment to say, in addition to what it used to mean, you have to present the warrant at least to people who are literate.

Counsel, if we conclude that there is, in fact, no requirement, as the Ninth Circuit seemed to think there was, that the warrant be shown to the homeowner in advance, assume that’s not a requirement.

What are the damages left other than attorneys fees?

Vincent J. Kozakiewicz:

–If the… the–

Sandra Day O’Connor:

Are you really… is it really a fight about attorneys’ fees because it’s taken so long to get up here?

Vincent J. Kozakiewicz:

–No, Your Honor.

Sandra Day O’Connor:

No?

Vincent J. Kozakiewicz:

No.

There’s… there’s… that hasn’t even come up.

I assume it will.

[Laughter]

May I ask you another question about the warrant?

Everybody’s been assuming that there’s only one particularity requirement in the Constitution.

There are two.

There’s the… particularly describing the place to be searched and also the items to be seized, and I was wondering if one couldn’t read this warrant as just satisfying the particularity requirement with regard to what was to be searched, because as I understand it, it was… the ranch was a very big ranch and they only wanted to search this one house with a couple of… the garage next to it, and they didn’t search the entire ranch, did they?

Yes, they did go to search the entire ranch.

Antonin Scalia:

Oh, they did?

Vincent J. Kozakiewicz:

And they did look in various other buildings.

There was a statement in the affidavits… in the complaint, which has not been denied that they… in some ways secured… they… there was admissions in… in answers–

John Paul Stevens:

I see.

I thought one might read the warrant as describing this particular blue… blue house and so forth as the particular part of the ranch that was to be searched for the guns and so forth, but that’s not the case?

They searched everything?

Vincent J. Kozakiewicz:

–Yes, that’s–

John Paul Stevens:

I see.

Vincent J. Kozakiewicz:

–That’s correct.

But if you were to… if you were to read it that it was the… to search the ranch for the blue house, then–

John Paul Stevens:

This would be… no, I wouldn’t… you wouldn’t obviously be searching for the blue house, but you might read this as having confined the search to the blue house as opposed to the entire ranch, which is described… but you… but that… that wasn’t done.

Vincent J. Kozakiewicz:

–No.

John Paul Stevens:

So then it is really nonsensical on its face.

Vincent J. Kozakiewicz:

That’s the position that we’ve taken all along.

William H. Rehnquist:

Well, so far as damages are concerned, I suppose your claim is analogous to a common law trespass, that someone has come on the… come on your property without any right to do so, and so you… you could analogize that to whatever damages you could get for a trespass.

Vincent J. Kozakiewicz:

That would be correct, Your Honor.

We… we haven’t thought about damages in… in your… since the… the motion to dismiss was… was granted and we’ve been arguing the… the points of law.

Ruth Bader Ginsburg:

But I thought you did make some kind of enumeration.

You mentioned Mr. Ramirez’s drafting table was broken and you said she was frightened, and I think one other thing you alleged.

Vincent J. Kozakiewicz:

Yes, that’s correct.

There were… there were damages–

Ruth Bader Ginsburg:

Oh, yes, the reputation to the… the reputation in the neighborhood, but that would have been affected just the same if the police came there with an entirely proper warrant.

Vincent J. Kozakiewicz:

–That’s… that damage would have been the… been the same.

The… the damage to them is the fact that the search was done and there was no… since the search was under a illegal warrant, we contend that the search was illegal and any damages coming through from the legal search are compensable, but that’s to be decided down… down the road.

The… the Marks v. Clarke case that was referred to earlier about… saying that there was no duty to read the warrant by the officers is not entirely correct.

In the… in the Marks case, in the… the Ninth Circuit said that there was no duty for the officers executing the warrant to read it, as long as they be… they fulfilled their duty to become familiar with it before they went out there.

However, the… the court did say that the officers who applied for the warrant had a duty to make sure that they had the valid warrant.

If there are no further questions–

William H. Rehnquist:

Thank you, Mr. Kozakiewicz.

Mr. Cordray, you have 2 minutes remaining.

Richard A. Cordray:

Your Honor, on the qualified immunity point, there is plain language in the Constitution as to what the Fourth Amendment says, but this Court said in Anderson v. Creighton, that is not the correct approach.

It’s not at the level of what the Constitution says in the abstract.

It’s how it’s applied in particular circumstances.

Richard A. Cordray:

And here, the Ninth Circuit did move the law in specific respects, and this Court is being asked to move the law and to answer questions that we either open, and in fact are controverted in the lower courts as we speak.

Sheppard had established that you can go beyond the four corners of the page of the warrant to look at supporting materials when there’s any kind of suitable words of reference.

The Ninth Circuit itself has clarified since this case, in U.S. v. Vesikuru, 314 F. 3d 1116, suitable words of reference can be that we’re relying on the sworn complaint to supply probable cause, very similar, in fact indistinguishable, from the words of reference in this warrant in this case.

You’re being asked to retreat from Sheppard and to clarify when a warrant can or cannot incorporate accompanying affidavit materials and that’s a question you’re being asked to answer in this case and then apply against this officer retrospectively to give damages and deny qualified immunity.

That’s inappropriate under this Court’s settled case law.

Second, you’re being asked in this case to say specifically an officer has a constitutional duty to proofread and re-check a warrant after it has been issued by the magistrate, which this Court has never held, and this Court has said in prior cases, including Illinois v. Gates, that the officers’ sole duty once they apply for an order of authority is to execute the warrant faithfully in accordance with the constraints imposed upon them.

McGrew moved the law in this case.

It was decided 6 months after this search occurred.

This decision below in this Ramirez case moved the law further, and yet the Court is being asked to deny qualified immunity to this officer here.

As for the Leon dictum, Justice Kennedy, you asked, we believe that if in fact Agent Groh had noticed this error, if anyone had called it to his attention during proceeding to execute the search, the more reasonable course of conduct would be to stop and seek clarification from the court, as the officers did in Maryland v. Garrison.

Having not noticed the error, having gone ahead and executed the warrant in good faith, having executed the search in compliance with the request made to the court, that is good faith and–

Would they have had a duty to turn around if they’d noticed the error 5 minutes before they’d come to the property?

Vincent J. Kozakiewicz:

That is a debatable question.

I think that the better approach would have been to stop at that moment and seek clarification from the court since there were no exigent circumstances.

But here, the officer had not noticed the error, the magistrate had not noticed the error, no one on the team had noticed the error.

The next day, a lawyer sitting in his office reading the page in the cold light of day noticed the error.

Immediately Agent Groh responded, faxed him the face page of the application.

His conduct here was clearly in good faith and… and to impose qualified immunity would be wrong and would be in total violation of this Court’s cases and clearly established law.

William H. Rehnquist:

Thank you, Mr. Cordray.

The case is submitted.