Supreme Court Hands Down Messerschmidt v. Millender

This morning the Supreme Court handed down Messerschmidt v. Millender, a Fourth Amendment and qualified immunity case that I blogged about here and here. As I had expected based on the briefs — although not necessarily the oral argument, which was more closely divided than I expected — the Court reversed, holding that the officers were entitled to qualified immunity.

The result in Millender isn’t such a big deal, and I suspect the press won’t pick up on the case very much. But for Fourth Amendment nerds, the majority opinion by Chief Justice Roberts has some noteworthy language — language that is very friendly to the police. Three points stand out:

1) The opinion has language suggesting a broad reading of probable cause. By way of background, the Court has said that probable cause to get a search warrant is “a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213 (1983). The definition of “contraband” is well-established; it’s property that is illegal to possess, such as narcotics. But exactly what counts as “evidence” under the probable cause test has long been a bit murky. How direct a connection to the elements of the crime does the item need to be to constitute “evidence”? It doesn’t need to be direct, Roberts concludes:

The Fourth Amendment does not require probable cause to believe evidence will conclusively establish a fact before permitting a search, but only “probable cause . . . to believe the evidence sought will aid in a particular apprehension or conviction.” Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 307 (1967) (emphasis added).

In the Millender case, the issue is whether the government had probable cause to search for gang evidence in a case involving a domestic assault by a gang member. Roberts concludes that a reasonable officer could have thought so, mostly because it could help connect the gang member to the other evidence found at the house. In other words, the gang evidence would help to show that the stuff belonged to the gang member. Roberts then adds this point:

In addition, a reasonable officer could believe that evidence demonstrating Bowen’s membership in a gang might prove helpful in impeaching Bowen or rebutting various defenses he could raise at trial. For example, evidence that Bowen had ties to a gang that uses guns such as the one he used to assault Kelly would certainly be relevant to establish that he had familiarity with or access to this type of weapon.

As best I understand the Chief Justice, “evidence” for probable cause purposes can include not only evidence for the government’s case in chief, but also evidence useful to impeach witnesses and respond to potential defenses.

If I’m reading Roberts correctly, that strikes me as a significant expansion of the probable cause standard. Off the top of my head, I can’t think of a case in which the government obtained a warrant seeking evidence that was not actually to be used in its case in chief, assuming the case goes to trial. indeed, in Warden v. Hayden, the Court had said that the “[t]here must, of course, be a nexus . . . between the item to be seized and criminal behavior.” An approach to probable cause that includes impeachment evidence and evidence relating to possible defenses strikes me as quite different: The probable cause is as to what might end up being useful to the government in a trial, not what is evidence of the elements that make up the criminal behavior.

This is particularly interesting because very few defendants testify, and at the time of a search the government can’t predict with any confidence what defenses might be raised if the search proves successful and the case goes to trial. As a result, what kind of impeachment evidence and evidence to counter defenses requires lots of conjecture. I wonder, are judges just supposed to assume at the time they review the warrant application that the defendant will certainly testify, and all defenses will be raised? Or does probable cause inquiry discount the chances this would happen? If the former, then Millender now allows warrants to be obtained for all sorts of evidence that might be impeachment evidence or respond to any number of defenses, but that has nothing to do with the elements of the crime or the case in chief. But if the latter, how do judges estimate the chances that these pieces of evidence might be relevant at the time of the search?

2) According to Chief Justice Roberts, when the police rely on a warrant, the good faith exception ordinarily applies. Note the new language: “the threshold for establishing” that the good-faith exception does not apply because the defect is major “is a high one, and it should be,” amounting to a “narrow exception” to the good faith rule in a “rare” case. Note how Roberts flips the usual phrasing: At least in the warrant setting, good faith is the “rule” and the exclusionary rule is the “narrow exception” to the good faith rule. It’s not a huge shift from prior decisions, but it does strike me as a shift in emphasis. Roberts correctly notes that this standard applies both for qualified immunity and the good-faith exception to the exclusionary rule, which gives it particular significance. Given that the Court has consistently expanded the good-faith exception over time, and may be moving towards a regime of limiting the exclusionary rule to cases of clear violations when there would be no qualified immunity, the bar for remedies for Fourth Amendment violations seems to be getting higher and higher.

3) Finally, Millender also has language limiting the scope of Groh v. Ramirez. The Court limits Groh to errors in warrants that are visible at a quick glance. A warrant defect that requires an understanding of the relevant case doesn’t trigger Groh. That’s consistent with what some lower courts have said, but it’s still a noteworthy limitation.