Do Four Wrongs Make a Right?

Earlier this week, in Messerschmidt v. Millender (No. 10-704), the U.S. Supreme Court shielded from civil liability a group of police officers who raided the home of septuagenarian Augusta Millender in order to execute an overbroad search warrant.  In so doing, the Court emphasized the fact that the officers had gotten approval for the warrant from (a) two supervisors, (b) a deputy district attorney, and (c) the magistrate who formally approved the warrant.  Assuming the warrant was unconstitutional (as the en banc Ninth Circuit concluded and the Supreme Court accepted for the sake of argument), then the police officers were seemingly saved from liability thanks in part to four erroneous determinations made by others.  “Under the majority’s test,” as Justice Sotomayor wrote in dissent, “four wrongs apparently make a right.”  (15)

Here’s what happened.


Jerry Ray Bowen, a known gang member with an extremely long rap sheet, attempted to kill his ex-girlfriend with a shotgun.  Fortunately, he missed.  She reported the matter to police, and suggested that they look for Bowen at the home of Millender, his former foster mother.

Police obtained a warrant to search the Millender residence.  The warrant application and accompanying affidavits detailed Bowen’s assault on his girlfriend, as well as his gang involvement.  The application concluded that “recovery of the weapon could be invaluable in the successful prosecution of the suspect involved in this case, and the curtailment of further crimes committed.”  Despite this focus on “the weapon,” the warrant authorized a search for “any firearms” and “articles of evidence showing street gang membership.”  The latter, in particular, seems a stretch, since the crime being investigated was a one-on-one domestic violence offense without any clear gang dimension.

The Court nonetheless held that the police officers who obtained and executed the warrant were protected from civil liability by the qualified immunity doctrine, which shields officers when they act in an objectively reasonable manner, even if a court later finds that their actions were unconstitutional.

In reaching this conclusion, the Court highlighted the approvals obtained by the officers (the “four wrongs”), but was not entirely clear as to how important they were to the bottom-line result.  The Court put it this way: “The fact that the officers secured these approvals is certainly pertinent in assessing whether they could have held a reasonable belief that the warrant was support by probable cause.”  (18)

How much weight should be given to such approvals is an interesting question.  As the Court’s decision last term in Kentucky v. King underscores, there are now so many exceptions to the Fourth Amendment warrant requirement and the exclusionary rule that perhaps we should welcome any additional incentives for police officers to seek a second opinion before conducting a search.  Creating greater protections from civil liability when officers obtain a warrant and consult with supervisors and prosecutors may help to discourage precipitous action and thereby prevent some inappropriate searches.

On the other hand, it is not clear how much rigor there is to these various levels of “independent,” ex parte review.  As the dissenters observed, the supervisors and the prosecutors are, in a sense, all on the same team as the cops requesting the warrant.  Indeed, there is a risk with the majority’s approach that officers will simply manufacture “objective reasonableness” for one another through cursory review of one another’s work.

But perhaps prosecutors are differently situated than cops for these purposes.  If a warrant is bad, or even arguably bad, it is prosecutors who will have to deal with the fallout in court.  They do seem to have some good incentives to review warrant applications with real independence and care.  Yet, even at that, the reliability of prosecutorial review may depend on the experience and seniority of the prosecutor.

In short, what should be regarded as “pertinent” to objective reasonableness is not be the mere fact that approvals were obtained, but who provided the approvals and under what circumstances.  Four wrongs may sometimes make a right, but not always.

One Reply to “Do Four Wrongs Make a Right?”

  1. Left out of the analysis is the increasing difficulty in predicting outcomes at the appellate level as judges of different philosophies judge issues that develop from searches and search warrants at a time that appellate courts have basically abandon bright line rules and judge more based on “totality of circumstances” and “reasonableness” tests. It is difficult for attorneys actively practicing criminal law and trial judges, not to mention police officers. However reliable the review is by police supervisors and prosecutors–or even by trial judges who consider probable cause submissions, it is a significant protection to citizens that such review is encouraged and occurs.

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