Messerschmidt v. Millender – Oral Argument – December 05, 2011

Media for Messerschmidt v. Millender

Audio Transcription for Opinion Announcement – February 22, 2012 in Messerschmidt v. Millender

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John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

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–

John G. Roberts, Jr.:

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–

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.

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–

Sonia Sotomayor:

That — that simply because supervisors decide that it’s okay, that that–

Timothy T. Coates:

–No.

Sonia Sotomayor:

–exculpates someone from responsibility?

Timothy T. Coates:

Certainly not.

Timothy T. Coates:

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.

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.

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.

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.

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–

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–

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–

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.

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–

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–

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–

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–

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.

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.

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.

Sonia Sotomayor:

Counsel–

John G. Roberts, Jr.:

Whose house — whose house was this?

Timothy T. Coates:

Augusta Millender’s house, Ms. Millender’s home.

John G. Roberts, Jr.:

It was not the defendant’s house?

Timothy T. Coates:

Correct.

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

Stephen G. Breyer:

To what–

Elena Kagan:

What’s the — I’m sorry.

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–

Stephen G. Breyer:

He didn’t say much about the gang.

Timothy T. Coates:

–No.

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?

Stephen G. Breyer:

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

Timothy T. Coates:

Well–

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.

Stephen G. Breyer:

Wait.

Before him?

Timothy T. Coates:

Yes.

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.

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–

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–

Antonin Scalia:

Excuse me.

Why are you going back to good faith?

I mean–

Timothy T. Coates:

–Well–

Antonin Scalia:

–That’s — that is what I think is the problem with this case.

Antonin Scalia:

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.

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.

John G. Roberts, Jr.:

Of course–

Antonin Scalia:

So when — I’m sorry.

John G. Roberts, Jr.:

–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–

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–

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.

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.

Antonin Scalia:

If they were wrapped in it yes.

But we know he is a gang member.

Timothy T. Coates:

Sure.

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–

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.

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.

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.

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–

Sonia Sotomayor:

Because again, in the hope of finding evidence of other crimes.

Timothy T. Coates:

–No.

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–

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.

John G. Roberts, Jr.:

Thank you, Counsel.

Mr. Srinivasan.

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.

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.

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–

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.

Samuel A. Alito, Jr.:

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.

Samuel A. Alito, Jr.:

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.

Samuel A. Alito, Jr.:

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.

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–

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–

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–

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.

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.

Sri Srinivasan:

The analogous question in this case,

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

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.

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–

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.

John G. Roberts, Jr.:

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–

Anthony M. 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.

Sonia Sotomayor:

You keep adding facts that weren’t in–

Anthony M. Kennedy:

So the test is whether or not he is likely to commit another crime?

Sri Srinivasan:

Well that’s the test that–

Anthony M. 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.

Sri Srinivasan:

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–

John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Wolfson.

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.

John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

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.

Samuel A. Alito, Jr.:

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–

Samuel A. Alito, Jr.:

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

Samuel A. Alito, Jr.:

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–

Samuel A. Alito, Jr.:

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–

Samuel A. Alito, Jr.:

–Well, that was just — that a misstatement on my part.

Paul Rq Wolfson:

–No, I understand, but–

Samuel A. Alito, Jr.:

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–

Samuel A. Alito, Jr.:

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–

Samuel A. Alito, Jr.:

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–

Samuel A. Alito, Jr.:

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–

Anthony M. Kennedy:

Well, just suppose they are searching the suspect’s own house.

Paul Rq Wolfson:

–Correct.

Anthony M. Kennedy:

And there’s — he’s used a specific gun.

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

Anthony M. Kennedy:

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–

Anthony M. 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–

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–

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–

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–

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–

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.

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.

Antonin Scalia:

–in fact, they seized some of the Millenders’ guns, didn’t they?

Paul Rq Wolfson:

That is correct.

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–

John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

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–

John G. Roberts, Jr.:

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.

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–

Antonin Scalia:

I didn’t understand that.

Paul Rq Wolfson:

–Yes.

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–

John G. Roberts, Jr.:

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.

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–

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–

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.

John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

Your answer, and again–

Paul Rq Wolfson:

Right.

John G. Roberts, Jr.:

–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.

John G. Roberts, Jr.:

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–

Sonia Sotomayor:

So what happens–

Paul Rq Wolfson:

–invalid warrant.

Sonia Sotomayor:

–below on that question?

Sonia Sotomayor:

Following up on–

Paul Rq Wolfson:

Right.

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.

Samuel A. Alito, Jr.:

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.

Samuel A. Alito, Jr.:

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–

Samuel A. Alito, Jr.:

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–

Samuel A. Alito, Jr.:

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.

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.

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–

Samuel A. Alito, Jr.:

Well, to come back to a question that was asked before–

Paul Rq Wolfson:

–Yes.

Samuel A. Alito, Jr.:

–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–

Samuel A. Alito, Jr.:

All right.

All sorts of legal weapons–

Paul Rq Wolfson:

–Right.

Okay.

Samuel A. Alito, Jr.:

–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–

Samuel A. Alito, Jr.:

Let’s–

Paul Rq Wolfson:

–So — okay.

Samuel A. Alito, Jr.:

–I am hypothesizing–

Paul Rq Wolfson:

Right.

Samuel A. Alito, Jr.:

–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–

Samuel A. Alito, Jr.:

–The circumstances are exactly the circumstances here–

Paul Rq Wolfson:

–That the–

Samuel A. Alito, Jr.:

–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–

Samuel A. Alito, Jr.:

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.

Samuel A. Alito, Jr.:

–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.

Samuel A. Alito, Jr.:

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–

Anthony M. 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.

Samuel A. Alito, Jr.:

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–

Samuel A. Alito, Jr.:

–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–

Samuel A. Alito, Jr.:

You really — you really are not answering my question.

Paul Rq Wolfson:

–Yes.

I–

Samuel A. Alito, Jr.:

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–

Samuel A. Alito, Jr.:

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.

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–

John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

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–

John G. Roberts, Jr.:

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–

John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

–Thank you, counsel.

Mr. Coates, you have 2 minutes remaining.

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.

John G. Roberts, Jr.:

Thank you, counsel, counsel.

The case is submitted.