Well-trained police officers know that evidence seized pursuant to a search warrant issued by a neutral and detached magistrate judge that is later found to be invalid is nonetheless admissible if the officer executing the warrant acted in good faith and with reasonable reliance on the warrant.[1] This is called the good faith exception to the exclusionary rule. That is, if the officer executing the warrant acted in good faith, the evidence will not be suppressed in a criminal hearing pursuant to the exclusionary rule.
The Supreme Court noted four situations in which an officer cannot be found to have relied on a warrant in good faith:
Absent any of these four exceptions, application of the severe sanction of excluding evidence would be inappropriate.
The good faith doctrine applies not only to the admissibility of evidence in the criminal context, but it also applies in the civil arena in situations involving qualified immunity. Indeed, the Supreme Court held “the same standard of objective reasonableness that we applied in the context of a suppression hearing in Leon ... defines the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional [search].”[2] The Court explained: “In Leon, we stated that our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization. The analogous question in [a civil lawsuit under Section 1983 involving qualified immunity] is whether a reasonably well-trained officer in [the officer’s] position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant. If such was the case, the officer’s application for a warrant was not objectively reasonable [and he is not entitled to qualified immunity].”[3]
It is against this backdrop that I discuss Poolaw v. Marcantel et al, [4] a recent court decision from the Tenth Circuit Court of Appeals.[5]
The Facts
In the early morning of March 22, 2006, Bernalillo County (N.M.) Sheriff’s Deputy James McGrane was shot and killed during a traffic stop. The investigation determined that the truck Deputy McGrane had stopped belonged to Michael Paul Astorga, who was also wanted in connection with another homicide that had taken place five months earlier. Officers located the truck in the area of Astorga’s residence, about 15 miles from the murder scene. While Astorga remained at large, investigators zeroed in on Astorga’s girlfriend who lived with him. The investigators contacted the girlfriend’s father, who told them that his daughter was pregnant with Astorga’s baby and that she had spent the night of the homicide at her parent’s home.
The investigators decided that Astorga’s parents’ property should be searched. The investigators provided specific information outlining why Astorga was the suspect in the homicide in the affidavit seeking the warrant to search the property. The affidavit also provided for the connection between Astorga and his girlfriend’s parents’ property.
In sum, the affidavit set forth that Astorga listed his girlfriend as his spouse and emergency contact during his previous arrests; Astorga’s girlfriend was pregnant with his baby; and the day following the homicide, Astorga’s girlfriend failed to show up at work. The affidavit also indicated that because the girlfriend resided at her parents’ home at least part time, it would be reasonable to assume that Astorga resided there at least part time, as well, and might have left or hidden evidence related to the homicide at that location. A judge issued a warrant on March 24.
Later that evening, officers (not the investigators previously discussed) executed the warrant on the property. Astorga’s parents were handcuffed during the search. Although it is not clear from the opinion, presumably no evidence was found on the property. As a result, Astorga’s girlfriend’s parents filed a civil rights lawsuit against several members of the Bernalillo County Sheriff’s Department. For purposes of this article, only those claims involving the investigators which were brought forth by the parents are discussed. They alleged that their property was the subject of an unreasonable search and that they were subjected to an unreasonable seizure during the search.
Both the parents and the investigators filed motions for summary judgment. The district court granted summary judgment in favor of the parents on both counts and denied the investigators qualified immunity. The investigators appealed.
The Opinion
The investigators asserted that the search of the parents’ property was constitutional because it was authorized by a warrant supported by probable cause. They also argued, in the alternative, that even if the search was unlawful, they could not be held civilly liable because they were not present when the warrant was executed. The appellate court disagreed with both arguments.
The appellate court acknowledged that if the affidavit in support of the search warrant established probable cause for the search, the search of the property would be constitutional. Thus, the first issue to be decided on the issue of qualified immunity is whether there was probable cause for the search. Although the court acknowledged that it would “pay great deference to the probable cause determination made by the judge who issued the warrant,” it found that there was no probable cause to issue the search warrant.[6]
In reaching this conclusion, the court affirmed the Supreme Court’s holding in Ybarra v. Illinois that “mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause.”[7]
Further, after reviewing the decisions in other circuit courts and district courts, the Tenth Circuit Court of Appeals announced a bright line rule: “A familial relationship to someone suspected of criminal activity, without more, does not constitute probable cause to search or arrest.”[8]Therefore, the court had to consider whether additional evidence linked Astorga to his girlfriend’s parents’ property for the purpose of establishing probable cause.
While acknowledging that the evidence set forth during the issuance of the search warrant indicated a possibility that Astorga’s girlfriend lived at her parents’ home part time—that Astorga listed his girlfriend as his spouse and emergency contact; she was pregnant with his child; she spent the night at her parents’ home the night of the homicide; she called in sick to work the next day; and she resided with him at his home—it’s not the probability that the Fourth Amendment requires.
The court found that the relationship between the parents’ property and Astorga, the actual criminal suspect, was even more attenuated for Fourth Amendment purposes. In fact, the court found that the affidavit lacked any evidence that Astorga had any contact with the girlfriend the night of the homicide or was even at the parents’ property. The conclusion reached in the affidavit “was based on a mere hunch that Astorga lived there, piled upon the hunch that [the girlfriend] lived there.”[9]
The court also found that because there was no probable cause to issue the warrant, the search of the parents’ property violated their Fourth Amendment rights. Additionally, because the investigators did not claim any independent suspicion to detain the parents during the search of their property, the parents’ were unlawfully seized.
The court turned to the investigators’ second basis for qualified immunity—that even if the search and seizure violated the parents’ Fourth Amendment rights, they could not be civilly liable because they were not present during the execution of the warrant. The court stated that liability does not require direct participation. Instead, any official can be held liable if he or she “sets in motion a series of events that [he or she] knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights.”[10]
Given that the investigators ordered the search and swore out the affidavit, it would be hard to argue that they would not have known their acts would lead directly to the search. With respect to the parents’ seizure during the search, the court found that it was standard procedure for the officers to handcuff anyone present in a home during a search. As such, the investigators could still be liable despite not being present during the search of the property.
After finding the investigators had violated the parents’ constitutional rights, the court had to decide whether the law was clearly established for determining whether the investigators were entitled to qualified immunity for the search of the parents’ property. According to the court, “[u]nder the clearly established standards for what constitutes probable cause, no reasonable officer could have believed that the meager facts related to the [parents’] property described in the… affidavit established more than a possibility that evidence of the McGrane homicide would be found there.”[11] As such, the investigators could not have reasonably but mistakenly concluded that probable cause was present, and they are not entitled to qualified immunity.[12]
What about the fact that an independent judge signed off on the warrant? Doesn’t that entitle the investigators to qualified immunity if there is no evidence that they misled the judge? According to the court, no.
The court cites two reasons. First, according to the court, “it is clearly established that ‘employing a reasonable process in seeking the warrant’ does not relieve officers of their constitutional duty to ‘exercise their own professional judgment’ as to the existence of probable cause.”[13] Second, an officer’s duty to exercise his independent professional judgment is not met simply because he lacks subjective bad faith. Instead, the inquiry is “whether a reasonably well-trained officer in [the defendant’s] position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.”[14]
The Bottom Line
An officer’s lack of subjective bad faith is not enough to guarantee him or her qualified immunity in civil lawsuits that result from obtaining a search warrant signed off by an independent judge. All the more reason to document the basis for obtaining the warrant, not only in the affidavit, but in related police reports as well. Additionally, officers would be wise to obtain the assistance of the city or county prosecutor or district attorney in drafting the affidavit and obtaining the search warrant.
Laura L. Scarry is a partner in the law firm of DeAno & Scarry, with offices located in Wheaton and Chicago, Ill. She represents law enforcement officials against claims of civil rights violations in state and federal courts. Scarry was a police officer with the Lake Forest (Ill.) Police Department from 1986–1992. Contact her at lscarry@deanoandscarry.com.
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