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Millender v. County of Los Angeles

August 24, 2010


Appeal from the United States District Court for the Central District of California, Dean D. Pregerson, District Judge, Presiding. D.C. No. CV–05–02298–DDP.

The opinion of the court was delivered by: Ikuta, Circuit Judge

Argued and Submitted December 14, 2009


Opinion by Judge IKUTA; Dissent by Judge CALLAHAN; Dissent by Judge SILVERMAN.


Plaintiffs Augusta Millender, Brenda Millender, and William Johnson (collectively, "the Millenders") filed this suit under 42 U.S.C. § 1983 against the County of Los Angeles, the Los Angeles County Sheriff's Department, and several individual members of the Sheriff's Department, alleging violations of their civil rights. Their complaint arose from a search pursuant to a warrant obtained by Detective Curt Messerschmidt of the Los Angeles County Sheriff's Department and executed under the supervision of Sergeant Robert Lawrence. Messerschmidt and Lawrence (collectively, "the deputies") appeal from the district court's determination that they were not entitled to qualified immunity with respect to the alleged overbreadth of the search warrant. Because the challenged sections of the warrant were "so lacking in indicia of probable cause as to render official belief in its existence unreasonable," Malley v. Briggs, 475 U.S. 335, 345, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), we affirm.


On November 4, 2003, Messerschmidt applied for an arrest warrant for Jerry Ray Bowen at 2234 E. 120th St., Los Angeles, and for a warrant to search that address and seize specified property in connection with "a spousal assault and an assault with a deadly weapon." Messerschmidt prepared an affidavit, entitled "Statement of Probable Cause." The affidavit contained the following facts: The victim of the assault, Shelly Kelly, stated that she had a "dating relationship" with the suspect, Bowen. Kelly decided to end the relationship due to Bowen's violent temper and because Bowen had previously physically assaulted her. Because of Bowen's violent nature, Kelly asked the Sheriff's Department to send officers to protect her while she gathered some of her property from the residence that she and Bowen shared. Once the requested officers arrived, Kelly began to move her property to her car. After approximately twenty minutes, the officers received an emergency call and had to leave, saying they would return after they handled the call.

According to Kelly, as soon as the officers left, Bowen appeared and screamed, "I told you to never call the cops on me bitch!" Bowen physically assaulted Kelly and attempted to throw her over the top railing of the second story landing of their residence. Bowen grabbed Kelly, bit her, and tried to drag her by the hair back into their residence. When Kelly resisted by bracing herself against the door, Bowen grabbed both of Kelly's arms, but Kelly was able to slip out of her shirt and run to her car. Bowen followed seconds later, now holding "a black sawed off shotgun with a pistol grip." Standing in front of Kelly's car, Bowen pointed the shotgun at Kelly and shouted, "If you try to leave, I'll kill you bitch." Kelly was able to escape by leaning over in her seat and flooring the gas. Bowen jumped out of the way and fired one shot at her, blowing out the front left tire of Kelly's car. Chasing the car on foot, Bowen fired four more times in Kelly's direction, missing her each time.

Shortly after, Kelly located police officers who immediately recognized her as the same person they had been protecting before they left for the emergency call. Kelly reported the shooting, described Bowen's firearm as a "black sawed off shotgun with a pistol grip," and gave the officers four photos of Bowen to aid their investigation.

Based on this information, Messerschmidt put a photo of Bowen into a "six pack" line-up. When Messerschmidt showed the photo line-up to Kelly, she immediately identified Bowen and circled his picture. Messerschmidt's affidavit states that "[t]he person [Kelly] identified is Jerry Ray Bowen ..., a known Mona Park Crip gang member." Kelly told Messerschmidt that Bowen's current address was 2234 E. 120th St., Los Angeles.

Messerschmidt requested a "Ramey Warrant" to arrest Bowen, because Kelly knew him personally and identified him as the person who physically assaulted and shot at her.*fn1 According to the affidavit, Messerschmidt conducted an "extensive background search" on Bowen using "departmental records, state computer records, and other police agency records." Using these records and information provided by Kelly, Messerschmidt confirmed that Bowen resided at 2234 E. 120th St. in Los Angeles.

Messerschmidt's affidavit also requested night service of the search warrant, giving two reasons. First, "the investigation has shown that the primary suspect in this case has gang ties to the Mona Park Crip gang based on information provided by the victim and the cal-gang data base." Second, Messerschmidt believed that "the nature of the crime (Assault with a deadly weapon) goes to show that night service would provide an added element of safety to the community" as well as to those personnel serving the warrant. The affidavit concluded by stating that Messerschmidt "believes that the items sought will be in the possession of Jerry Ray Bowen and the recovery of the weapon could be invaluable in the successful prosecution of the suspect involved in this case, and the curtailment of further crimes being committed."

In addition to preparing the affidavit, Messerschmidt completed a "Search Warrant and Affidavit" form to authorize the search of the residence identified in "Attachment 1" and the seizure of property identified in "Attachment 2." Attachment 1 identifies the "location to be searched" as 2234 E. 120th St. in Los Angeles. Attachment 2 sets out two categories of items to search and seize. The first paragraph lists:

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

The second paragraph lists:

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

An additional attached affidavit recounts Messerschmidt's experience in gang investigations. The Search Warrant includes Messerschmidt's attestation that the incorporated affidavit is true and the property described in Attachment 2 is lawfully seizable.

Messerschmidt also drafted a "Probable Cause Arrest Warrant and Affidavit in Support Thereof" to authorize the arrest of Bowen, which again states his address as 2234 E. 120th St., Los Angeles. This arrest warrant application incorporates Messerschmidt's affidavit by reference.

Messerschmidt was aware of other relevant facts not included in the affidavit. First, Kelly explained to Messerschmidt that the address she gave him, 2234 E. 120th St., was the home of Bowen's foster mother, Augusta Millender. Second, Messerschmidt knew that Bowen had a previous criminal record and was on summary probation for spousal battery and driving without a license.*fn2 Bowen also had several previous felony convictions and misdemeanor arrests, and was a "third strike candidate" under California law. *fn3 Third, in addition to identifying the gun Bowen used as a black sawed-off shotgun with a pistol grip, Kelly gave Messerschmidt a picture of Bowen posing with the gun. Fourth, there was no evidence that Bowen's assault on Kelly was in any way gang-related. In subsequent testimony, Messerschmidt answered "No" to the question, "So you didn't have any reason to believe that the assault on Kelly was any sort of a gang crime, did you?"

Before Messerschmidt submitted the warrants and affidavit to the magistrate, they were reviewed by his supervisors in the Sheriff's station, Sergeant Lawrence and Lieutenant Ornales. In addition, Deputy District Attorney Janet Wilson signed the search warrant, indicating that she had reviewed it for probable cause and approved it. Messerschmidt presented the Search Warrant and Affidavit and the Probable Cause Arrest Warrant, along with their attachments (including the affidavit), to a magistrate. The magistrate approved both warrants and authorized night service.

At 5:00 a.m. on the morning of November 6, 2003, the Sheriff's Department's SWAT team served the search and arrest warrants at the 120th St. address. The SWAT team forced open the front security door, broke a front window, and proceeded to enter, search, and clear the house. The ten occupants of the house, including the Millenders, were ordered to exit, which they did. Once the SWAT team had secured the residence, investigators searched the area. While Messerschmidt and Lawrence did not participate in the search, they were both present. The investigators conducting the search failed to find Bowen or a black sawed-off shotgun with a pistol grip. However, they did find and take Augusta Millender's personal shotgun (a black 12–gauge "Mossberg" with a wooden stock), a box of .45 caliber "American Eagle" ammunition, and a letter from Social Services addressed to Bowen. Some two weeks later, Messerschmidt, without SWAT assistance, arrested Bowen in the middle of the day after discovering Bowen hiding under a bed in a motel room.

The Millenders filed suit under 42 U.S.C. § 1983 against the County of Los Angeles, the Los Angeles County Sheriff's Department, Sheriff Leroy Baca, and 27 Los Angeles County deputies, including Messerschmidt and Lawrence. As relevant here, the Millenders alleged violations of their Fourth and Fourteenth Amendment rights. The parties filed cross motions for summary adjudication on the validity of the arrest and search warrants. The district court concluded that the arrest warrant was facially valid, and granted the defendants' motion for summary adjudication on this issue. The Millenders have not appealed this ruling.

The district court also held that the warrant's authorization to search for and seize all firearms, firearm-related materials, and gang-related items was unconstitutionally overbroad, but that its authorization to search for evidence tending to establish control of the premises was constitutional. Accordingly, the court granted the Millenders' motion for summary adjudication as to firearm- and gang-related evidence, but granted the defendants' motion as to identification evidence. The district court then rejected the deputies' claim of qualified immunity on the ground that the deputies' actions were not objectively reasonable.

Messerschmidt and Lawrence timely appealed the district court's determination that they were not entitled to qualified immunity.


Although we normally lack jurisdiction to consider the denial of a motion for summary judgment, we may consider an appeal from such an interlocutory motion where the motion is based on a claim of qualified immunity, KRL v. Estate of Moore, 512 F.3d 1184, 1188 (9th Cir.2008), even when other claims against the defendants are pending below, Behrens v. Pelletier, 516 U.S. 299, 312–13, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). "Our jurisdiction ..., however, is limited to questions of law; it does not extend to claims in which the determination of qualified immunity depends upon disputed issues of material fact." Schwenk v. Hartford, 204 F.3d 1187, 1195 (9th Cir.2000). When facts are disputed, "we assume the version of the material facts asserted by the non-moving party to be correct." Id.; see also Groh v. Ramirez, 540 U.S. 551, 562, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). We review the district court's legal determinations de novo. Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994); KRL, 512 F.3d at 1188.


"The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, ––––, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (internal quotation marks omitted). A police officer is not entitled to qualified immunity if: (1) the facts show that the officer's conduct violated a plaintiff's constitutional rights; and (2) those rights were clearly established at the time of the alleged violation. See id. at 816. Although we have discretion to address these prongs in any order, see id. at 818, we begin in this case by considering whether the deputies' conduct violated the Millenders' constitutional rights, see id. at 816.


The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The Supreme Court has recognized that a search or seizure pursuant to an invalid warrant constitutes an invasion of the constitutional rights of the subject of that search "at the time of [the] unreasonable governmental intrusion." United States v. Verdugo–Urquidez, 494 U.S. 259, 264, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990); see also United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ("The wrong condemned by the [Fourth] Amendment is 'fully accomplished' by the unlawful search or seizure itself ...."). Even when only a portion of a search warrant is invalid, the subject of the search suffers a constitutional violation. See United States v. Sears, 411 F.3d 1124, 1129 (9th Cir.2005); United States v. Spilotro, 800 F.2d 959, 967–68 (9th Cir.1986) (Kennedy, J.). A search warrant that is not issued "upon probable cause" is invalid. U.S. Const. amend. IV; Groh, 540 U.S. at 557, 124 S.Ct. 1284. "Probable cause exists when 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.' " United States v. Grubbs, 547 U.S. 90, 95, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). To be valid, a search warrant must also "particularly describ[e]" the "things to be seized." U.S. Const. amend. IV; see Groh, 540 U.S. at 557, 124 S.Ct. 1284.

We read the Fourth Amendment as requiring "specificity," which has two aspects, "particularity and breadth." United States v. SDI Future Health, Inc., 568 F.3d 684, 702 (9th Cir.2009). "Particularity is the requirement that the warrant must clearly state what is sought. Breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based." Id. (quoting In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 856–57 (9th Cir.1991)). In determining whether a warrant's description is sufficiently specific to meet these Fourth Amendment requirements, we consider the following questions:

(1) whether probable cause exists to seize all items of a particular type described in the warrant; (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not; and (3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued.

Spilotro, 800 F.2d at 963 (citations omitted). The first consideration encapsulates the overarching Fourth Amendment principle that police must have probable cause to search for and seize "all the items of a particular type described in the warrant." In re Grand Jury Subpoenas, 926 F.2d at 857; see also SDI Future Health, 568 F.3d at 702–03; VonderAhe v. Howland, 508 F.2d 364, 369–70 (9th Cir.1974). The second and third factors are relevant to determining whether the warrant satisfies this general rule.

When considering challenges to warrants under this framework, we must be mindful that a "magistrate's determination of probable cause should be paid great deference by reviewing courts." Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (internal quotation marks omitted). The Supreme Court has directed us to take a practical approach in determining whether there is sufficient probable cause, and to avoid "interpreting affidavits in a hypertechnical, rather than a common-sense, manner." Id. (brackets and internal quotation marks omitted). "Deference to the magistrate, however, is not boundless." Leon, 468 U.S. at 914, 104 S.Ct. 3405. We are not to "defer to a warrant based on an affidavit that does not provide the magistrate with a substantial basis for determining the existence of probable cause." Id. at 915 (citation and internal quotation marks omitted).


We begin by analyzing whether the warrant's authorization to search for firearms and firearm-related materials satisfies the three-factor specificity framework. We first consider whether the deputies had probable cause to search for and seize "all the items of a particular type described in the warrant." In re Grand Jury Subpoenas, 926 F.2d at 857. "The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion). For example, probable cause to search for documents pertaining to "certain aspects of [an] operation" cannot justify the seizure of all documents in an office. United States v. Stubbs, 873 F.2d 210, 211 (9th Cir.1989).

As noted above, the warrant in this case authorizes a search for essentially any device that could fire ammunition, any ammunition, and any firearm-related materials. There is no dispute that the deputies had probable cause to search for and seize the "black sawed off shotgun with a pistol grip" used in the crime. But the affidavit does not set forth any evidence indicating that Bowen owned or used other firearms, that such firearms were contraband or evidence of a crime, or that such firearms were likely to be present at the Millenders' residence. Nothing in the warrant or the affidavit provides any basis for concluding there was probable cause to search for or seize the generic class of firearms and firearm-related materials listed in the search ...

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