Vol. 25 No. 2- Executors Of Search Warrants Beware. Ninth Circuit Declares Warrant Unconstitutionally “Overbroad” As Deputies Searched For Items Not Specifically Identified In Search Warrant


September 16, 2010

On August 24, 2010, the United States Court of Appeals for the Ninth Circuit issued an opinion inMillender v. County of Los Angeles (07-55518) concerning the scope of search warrants.  The Court held that a search warrant was “unconstitutionally overbroad” because it permitted the search and seizure of “all” firearms and ammunition in the suspect’s home when deputies had probable cause for a single weapon.

The Court affirmed the trial court’s ruling that individual deputies shall not be afforded qualified immunity from civil liability for their role in drafting and executing an invalid search warrant. In light of this ruling, law enforcement must be careful to restrict the breadth of its search warrants to the evidence that creates probable cause.


On November 4, 2003, a Los Angeles County Detective applied for an arrest
warrant and a warrant to search the address and seize property of the individual to be arrested.  The Detective prepared a supporting affidavit which included the following facts:  The female victim of an assault had been dating the suspect.  Victim decided to end the relationship and contacted law enforcement to protect her while she moved out of her shared residence with Suspect because of Suspect’s history of violence.  Suspect discovered Victim’s plan and became violent.  He grabbed her, bit her, and dragged her by the hair.  Suspect then obtained a black sawed-off shotgun with a pistol grip and pointed it at Victim and verbally threatened to kill her.  Victim managed to escape by vehicle though Suspect fired several rounds in Victim’s direction, missing her each time.

Victim reported this conduct to a Los Angeles County Sheriff’s Department detective, who requested a Ramey Warrant to arrest Suspect as well as a search warrant to search and seize various items at Suspect’s last known residence.
The subject search warrant 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”. [Emphasis added].

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. …”

Significantly, prior to submission to the court for consideration, the warrants and affidavit were reviewed by the detective’s supervising sergeant and lieutenant.  Thereafter, a deputy district attorney reviewed and signed the search warrant. A magistrate judge subsequently approved both the arrest and search warrants.

In the early morning hours of November 6, 2003, the Sheriff’s Department’s SWAT team served the warrants.  Investigators failed to find the black sawed-off shotgun with a pistol grip.  Instead, they found and seized a 12-gauge shotgun with a wooden stock, a box of .45 caliber ammunition, and a letter from Social Services addressed to Suspect.  Suspect was not present, but was arrested two weeks later in a motel.

Plaintiffs, the owners of the residence search, filed suit under 42 U.S.C. § 1983 against the County, the Sheriff’s Department, the Sheriff, and 27 individual deputies who participated in some manner with the search and seizure, alleging that their Fourth and Fourteenth Amendment rights against unlawful search and seizure were violated.

The District Court held that the warrant’s authorization to search for and seize all firearms, firearm-related materials, and gang-related items was “unconstitutionally overbroad” and rejected the deputies’ claim for qualified immunity on the ground that the deputies actions were “not objectively reasonable.”  Two of the deputies named as defendants appealed the District Court’s determination that they were not entitled to qualified immunity.


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.  A police officer is not entitled to qualified immunity if:  1) the facts show that the officer’s conduct violated a plaintiff’s constitutional right; and 2) those rights were clearly established at the time of the alleged violation.

The key issue in this case was whether the subject warrant was so facially invalid that no reasonable officer could have relied upon it.  The Ninth Circuit affirmed the trial court’s determination that no reasonable officer could have relied upon the warrant, thus denying the individual officers’ qualified immunity.

The Ninth Circuit supported its finding by reasoning that the Fourth Amendment requires specificity in search warrants in two regards, particularity and breadth.  The court stated that there was no dispute that deputies here had probable cause to search and seize the black sawed-off shotgun described by Victim.  However, the court noted the warrant instead authorized the deputies to search for and seize all firearms or firearm-related materials.  The court stated the supporting affidavit did not provide any evidence that Suspect owned or used firearms other than the subject black sawed-off shotgun.

The court stated the general rule was that police must have probable cause for every item searched and/or seized.  However, such failure does not always invalidate warrants that authorize a search for classes of generic items.  A broader search warrant may be valid if the warrant establishes standards that are “sufficiently specific to reasonably guide the officers in avoiding seizure of protected property…”  The court noted that specific standards may be contained in the affidavit provided: 1) the warrant expressly incorporates the affidavit by reference; and 2) the affidavit is either physically attached to the warrant or at least accompanies the warrant while executing the search.

Note that “generic” search warrants are only permissible when the government is not able to describe the items with more particularity in light of the information available to it at the time the warrant was issued.  According to the court, that was not the case here.  Deputies had a precise description of the firearm used by the Suspect.

The deputies here made several unavailing arguments to the court.  First, they argued unsuccessfully that the sawed-off shotgun could be broken down into smaller components.  The court responded that a more precise description of the items for seizure would still have been possible.  Second, the deputies argued that Suspect had a reputation for violence and was a dangerous person.  The court stated case law did not permit an overbroad warrant because potential danger existed for the executing officers.  The deputies further argued that seizure of all firearms and firearm-related material is proper in that such items could

aid in the prosecution of Subject.  The Court quickly dismissed this argument stating the “Fourth Amendment does not authorize the issuance of warrants to conduct fishing expeditions to find evidence that could assist officers in prosecuting suspects.”
The court then addressed the issue of the search warrant’s authorization for the search of all gang-related items.  The court found no probable cause for the seizure of gang-related items because the deputies failed to establish a link between gang-related evidence and a crime.  The court stated that “merely being a gang member or having gang ties is not a crime in California.”

The court concluded that there was no probable cause for the broad categories listed in the search warrant and that the Plaintiffs’ constitutional rights had been violated.

The next issue for the court to determine whether the deputies were entitled to qualified immunity was to decide whether the law was “clearly established” at the time of the alleged misconduct.

The court noted that the Supreme Court has held that an “officer loses qualified immunity only when a reasonably well-trained officer in [the defendant officer’s position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.”  The court stated this standard protects all but the “plainly incompetent or those who knowingly violate the law.”

The court declared that the deputies could not justifiably rely on the warrant because its invalidity was “so obvious that any reasonable officer reading the warrant would conclude that the warrant was facially invalid.” The court made this comment despite the fact that a supervising sergeant, a supervising lieutenant, the reviewing deputy district attorney and the reviewing magistrate judge did not make this “obvious” determination.

The court’s final comments were that the “deputies here had a responsibility to exercise their professional judgment.”  Their purported failure to do so resulted in their loss of entitlement to qualified immunity.


This case should serve as an eye opener for law enforcement.  Search warrants must be  specifically tailored to match the evidence establishing probable cause to search for the items listed therein.  If that is not the case, law enforcement officers involved in a search and seizure may not be afforded the customary protection of qualified immunity.  As such, individual officers could face liability for civil damages.

In an effort to comply with the Millender decision, law enforcement personnel should ensure that search warrants do not contain the sweeping language used in this case.  The warrant should be closely aligned with the evidence used to support it.  As the court noted, you may wish to consider having the warrant expressly incorporate the supporting affidavit by reference or ensure the affidavit is either physically attached to the warrant or at least accompanies the warrant while executing the search.

Further, the Millender case teaches the search and seizure of gang-related items is improper unless law enforcement can establish some link between the items sought and a crime.  Without some articulable link between the gang materials and a crime, a warrant authorizing the search and seizure of gang-related evidence is invalid and could expose deputies to civil liability.

As in all matters involving the law, it is imperative that you confer with your agency’s legal counsel to secure advice and guidance on how it will impact on your agency.  However, as always, if you wish to discuss this case in greater detail, please feel free to contact Jim Touchstone or Dan Peelman at (714) 446-1400, or via e-mail at jrt@jones-mayer.com ordlp@jones-mayer.com, respectively.

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