Metropolitan News-Enterprise


Thursday, May 7, 2009


Page 1


Court: Approval of Warrant Made Police Reliance Reasonable


By STEVEN M. ELLIS, Staff Writer


Two Los Angeles County sheriff’s deputies are entitled to qualified immunity in a suit over their execution of an allegedly overbroad search warrant because a deputy district attorney and a judge signed off on it, a divided panel of the Ninth U.S. Circuit Court of Appeals held yesterday.

Concluding the officers could reasonably rely on the prosecutor and the judge to limit the warrant’s scope to items covered by the showing of probable cause, the panel voted 2-1 to vacate a ruling by U.S. District Judge Dean D. Pregerson of the Central District of California.

Augusta Millender alleged the officers violated her civil rights by raiding her home before dawn in 2003 looking for her foster son under a warrant authorizing seizure of evidence of gang affiliation and firearms. She claimed the evidence was irrelevant to the domestic violence charge he faced.

The foster son, identified only as “Mr. Bowen,” was charged with attacking his then-girlfriend with a sawed-off shotgun when she attempted to end the relationship and move out.


Sawed-Off Shotgun


The girlfriend, identified as “Ms. Kelly,” initially summoned sheriff’s deputies to watch while she gathered property from the residence. However, when they were called away by an emergency, Bowen appeared and retrieved a black sawed-off shotgun with a pistol grip from the residence while Kelly fled to her car.

According to Kelly, Bowen ran in front of the vehicle and pointed the firearm at her, threatening to kill her if she left. She then ducked down and accelerated towards Bowen, who jumped out of the way and fired, blowing out her left front tire before giving chase and firing another four shots as she drove away.

Kelly escaped and contacted police, and Detective Curt Messerschmidt was assigned to investigate the assault. He met with Kelly, who provided a picture of Bowen holding the shotgun and indicated that Bowen might be staying at Millender’s home.


Gang Ties Alleged


Messerschmidt then prepared an affidavit for a search warrant for the residence. It indicated that Bowen had ties to the Mona Park Crip gang, and sought authorization for the search and seizure of all firearms and firearm-related items, and evidence relevant to gang membership.

The warrant was reviewed by a sergeant, a police lieutenant and a deputy district attorney before it was presented to, and signed by, a judge.

The deputies served the warrant at 5 a.m. on Nov. 6, 2003, breaking through the front window and front door within seconds of announcing their presence. They did not find Bowen, but seized Millender’s personal shotgun, a letter addressed to Bowen and a box of .45-caliber ammunition.

Bowen was arrested two weeks later, after his wife admitted deputies into a motel room where they found him hiding under the bed.

Millender subsequently sued the county and the deputies, and Pregerson found the warrant facially valid, that Messerschmidt’s conduct was reasonable, that there was probable cause to believe Bowen was at the residence, and that the affidavit adequately supported nighttime service.

But he said the warrant was overbroad as to firearms because the crime charged was a physical assault involving a specific weapon, and as to gang membership because there was no evidence the assault was gang-related.

On appeal, Judge Consuelo M. Callahan applied the two-pronged approach developed by the U.S. Supreme Court in Saucier v. Katz (2001) 533 U.S. 194, and wrote that the deputies were nevertheless entitled to qualified immunity, even if the warrant had been overbroad.

Under Saucier, courts must first inquire whether the facts—taken in the light most favorable to the party asserting injury—show conduct that violated a constitutional right, and if so, whether the right was clearly established so that a reasonable officer would know the conduct was unlawful.

Pointing to the second prong, Callahan wrote the officers could reasonably have thought the disputed warrant provisions were permissible because they could reasonably have expected the prosecutor or the judge to limit the warrant if it sought items for which there was no probable cause.

Judge Ferdinand F. Fernandez concurred, writing that the officers “did precisely what we want them to do,” even though the case was “at the outer limit of our tolerance” and the legal system had “failed the Millenders.”

However, Judge Sandra S. Ikuta dissented that “no reasonably well-trained officer in Messerschmidt’s position could have concluded that there was probable cause to search for the wide variety of firearms, firearm accessories, and gang paraphernalia.”

Citing the Ninth Circuit’s opinion in United States v. Spilotro (1986) 800 F.2d 959 she explained:

“Officers do not get a pass from complying with the Fourth Amendment’s warrant requirements because they are investigating an unsavory character. No matter how shady Bowen may be, reasonable officers would know that they cannot undertake ‘general, exploratory searches and indiscriminate rummaging through a person’s belongings’…unless there are facts in the affidavit establishing a fair probability that the items sought in the search warrant are contraband or evidence of a crime.”

The case is Millender County of Los Angeles, 07-55518.


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