WASHINGTON -- The Supreme Court grappled with guns, gangs and a detective's good faith in executing a search warrant at oral argument Monday morning.
In 2003, Jerry Ray Bowen, a member of the Crips gang, allegedly fired a sawed-off shotgun at his fleeing ex-girlfriend, Shelly Kelly, as he yelled, "If you try to leave, I'll kill you, bitch." Investigating the incident, Los Angeles police detective Curt Messerschmidt drew up a search warrant for a night raid on the residence at which Kelly believed the police could find Bowen. The warrant, which called for the collection of all firearms and gang-related items, was reviewed and authorized by a district attorney and a magistrate judge. At five o'clock in the morning, a SWAT team raided the home of Augusta Millender, Bowen's foster mother. They found neither Bowen nor his sawed-off shotgun, but they did collect Millender's handgun.
Millender then sued Messerschmidt, among others, contending that he had no probable cause to search for anything beyond Bowen's sawed-off shotgun.
Under Supreme Court precedent, Millender's lawsuit can only proceed if Messerschmidt's search warrant was "so lacking in indicia of probable cause as to render official belief in its existence unreasonable." The justices during Monday's oral argument split on whether probable cause was lacking and, if so, whether the detective should be held responsible.
Justices Ruth Bader Ginsburg and Sonia Sotomayor came out the strongest in favor of the foster mother's claims.
During lawyer Timothy Coates' argument on behalf of the detective, Sotomayor compared the warrant in this case to the nonspecific and virtually limitless warrants the British used against American colonists. "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?" she asked.
Ginsburg sharply questioned the connection between gang affiliation and girlfriend-beating. "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, then every warrant can say 'search for all gang-related information'?" she asked.
Coates responded that such evidence would be "identification information" that could be used "to possibly tie Mr. Bowen to any weapon that was found" in the house, including his sawed-off shotgun.
"But they didn't need to tie him to the shotgun," Ginsburg retorted. "They had photographs of him with the shotgun."
Nor did Justice Antonin Scalia buy the "identification information" argument. "I really don't understand," he said, "how you can possibly search for indicia of gang membership when you know the man's a gang member -- so what?"
Justice Samuel Alito, on the other hand, seemed to see nothing overbroad in the search warrant.
Questioning Millender's lawyer, Paul Wolfson, Alito asked, "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 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?"
Not getting the answer he wanted from Wolfson -- which would have been "There's nothing wrong with that" -- Alito spun his inquiry into a hypothetical: Police officers enter a room that they know is Bowen's, and there is a gun cabinet with a "whole array" of legally owned guns, "and it's known that he's threatened to kill his girlfriend."
"Would the police be able to seize those?" asked Alito. Wolfson, sensing a trap, tried to evade the question, prompting Justice Anthony Kennedy -- who often holds the Court's crucial fifth vote in divisive cases -- to say, "I am putting in my notes that you are not answering the hypothetical."
Wolfson remained unwilling to step into Alito's trap, so the justice shoved him into it. "Your answer is they can take them," Alito said. Otherwise, as Alito suggested earlier in the exchange, "if he happens to come back and get those weapons, and he kills her, well, that's just too bad?"
The justices were also split on whether the detective could be held individually responsible for a faulty warrant if it needed and had received approval from a prosecutor and a judge in order to be executed. When Chief Justice John Roberts started the questioning by implying the answer was no, Sotomayor reminded her colleagues that "in spite of" such reasoning, the Court has chosen to make police officers legally responsible for unconstitutional search warrants, even when executed in good faith.
Alito, speaking to Principal Deputy U.S. Solicitor General Sri Srinivasan, found that rule "very strange."
"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 you couldn't reasonably think that the judge was correct," Alito said.
On this point, Scalia seemed to sympathize with Alito. "Even if the officer is in good faith, according to the test we have set forth, if he's so stupid that he executes a warrant that no reasonable officer could think was correct, he's in the pot," Scalia skeptically characterized the law to Coates. But Scalia did not appear to agree with Alito on the crucial matter of Monday's case. However stupid Scalia thought the current law, he found the sweeping breadth of the warrant even stupider.
The case, Messerschmidt v. Millender, will likely be decided by the end of June.