The Ninth Circuit has just agreed to rehear Millender v. County of Los Angeles en banc; here’s what I blogged about the case when the panel opinion came out in May:
Bowen was a felon and likely a gang member who had apparently committed a serious gun crime (shooting at the car of his girlfriend, who was leaving him, with a sawed-off shotgun). The police heard that Bowen “might be staying at his foster mother’s home.” They therefore got a warrant to search the foster mother’s (Augusta Millender’s) home for, among other things, “all firearms and firearm-related items.”
When they searched the house, they didn’t find Bowen or the gun with which he had committed the crime, but they did find and seize “Mrs. Millender’s personal shotgun … and a box of 45-caliber ammunition.” Mrs. Millender and the family members with whom she was living (her daughter and her grandson) sued, claiming the search violated the Fourth Amendment. The case eventually ended up before the Ninth Circuit, as Millender v. County of Los Angeles, decided last Wednesday.
Judge Callahan, writing for herself and for Judge Fernandez, held that the defendant police officers were shielded by qualified immunity because the search was authorized by the warrant, and that this would be so even if the warrant was unconstitutionally overbroad. Judge Callahan did not express a view on whether the warrant was indeed overbroad.
Judge Fernandez concurred in the majority opinion, agreeing that the officers were shielded by qualified immunity because of the warrant, but concluded that the search was indeed unconstitutional. In this case, he concluded, there was “extremely little support for the search of a third person’s home for all firearms and ammunition” (even though the officers thought Bowen was staying at the house, and therefore it was “Bowen’s home also”).
Judge Ikuta dissented, concluding that “no officer of reasonable competence could have thought [the] affidavit established probable cause to search for the items listed in the warrant,” and that therefore the officers couldn’t claim qualified immunity. Judge Ikuta also briefly cited D.C. v. Heller, though only in passing, and following a clause that said, “Mere possession of firearms is not, generally speaking, a crime.”
A very interesting case, and much worth reading if you’re interested in searches and seizures as they affect innocent third parties, if you’re interested in gun rights, or if you’re interested in both.
PJens says:
I find this amazing. Lets say Mr. Bowen had beaten his girlfriend’s car with a hammer. They search his foster mother’s house (with a warrant) for a specific hammer, do not find the one they are looking for, but instead seize a hammer belonging to the foster mother and a box of nails. They didn’t find what they were looking for, but confiscated something different anyway. Incredible! I hope they win their case.
October 2, 2009, 11:17 amSteve says:
Question: once the warrant (w/r/t seizing all firearms and firearms accessories) was granted, weren’t the police all but required to seize all such items? To do otherwise (i.e. only seize certain weapons) would inject subjectivity to the search, and really would make it easy to bring cases against the officers that they treated people differently.
October 2, 2009, 11:20 amSara says:
Isn’t it the magistrate who is suppose to decide whether the warrant is supported by the affidavit, not the cop?
October 2, 2009, 11:26 amNickM says:
Bowen is a felon. Any firearm in his possession is unlawful. [I'm talking about existing statutory and case law, not whether that comports with your view of what the Second Amendment really means.] A firearm owned by another but lent to him qualifies.
Nick
October 2, 2009, 11:27 amredc1c4 says:
i can almost see seizing the shotgun, since it’s possible that it could be the same receiver as was used in the shooting, with a different barrel attached, but why the pistol ammo? furthermore, once it was established that the shotgun was *not* the one they were looking for, it, and the ammo, should have been returned post haste.
(of course, i’m not a lawyer, nor do i play one on TV, so i’m just applying old fashioned common sense, which has no place in the judicial system. %-)
October 2, 2009, 11:29 amTim says:
I’m really glad to see this case being reviewed again. Allowing police to hide behind qualified immunity when the 4th amendment should have clearly prevented them from obtaining a warrant is unacceptable.
Being a cop is a tough job, but it is absolutely shocking that the warrant process essentially became a rubber stamp, in this instance. It is a testimony to our police culture that things like this happen.
I hope the trial court’s decision is affirmed. The facts in this case are so ridiculous that I can’t see it going any other way.
October 2, 2009, 11:46 amDWC says:
I am one of the attorneys representing the Millenders.
Another aspect of the case was the police claim that Bowen resided at the Millender residence. In fact, there was no evidence that he did — the state court superior court judge threw out the warrant on that basis. We argued to the district court there was no p.c. to believe that Bowen resided with the Millenders (the cops’ evidence was that a former girlfriend said she thought he might be “hiding out” at the Millenders); the district judge disagreed and we couldn’t appeal that conclusion (our request for an interlocutory appeal was denied). Even though, on appeal we argued, in defense of the overbreadth ruling by the district judge, that a hide-out is not the same as a residence & hence not as likely to have a subject’s personal belongings. Or as my partner put it in one of the briefs: “One would not ‘hide out’ at one’s regular place of abode. The ‘spider hole’ was Sadam Hussein’s ‘hide out,’ not his ‘residence.’ ”
I mention this because the panel decision seemed to think we conceded that Bowen resided at our clients’ residence & that may have influenced Fernandez’s concurrence.
The “seizure of all guns” is, by the way, boilerplate in practically every LA County search warrant (based on my 20+ years of doing this). That is, it doesn’t matter if a gun is involved in the crime under investigation; LA Sheriff’s Dept warrants seem to always seek seizure of all guns. So I hope there’s an en banc decision that puts an end to that practice.
donald w. cook
October 2, 2009, 11:47 amOren says:
It’s unfortunate that precedent forces us to deal with all this stuff on the front end, instead of stating that the seizure of the gun is unreasonable only to the extent that it was not returned as early as practical after it was established not to be relevant to an ongoing investigation.
I say this, because it seems fairly obvious that a man credibly accused of a gun crime might hide the gun where he lives. There is probable cause to search the house for guns that might have been used.
October 2, 2009, 11:57 amSeaDrive says:
In the gun-owning community, this is called “stealing guns.”
Did Mrs. Bowen get her shotgun back? I can see that in cases with similar facts, it might be appropriate to take a gun back to the station to determine if it is actually evidence in some sort of crime, but surely it should be returned promptly if it’s not. Anecdotally, police departments take a different view.
October 2, 2009, 11:58 amDennis N says:
redc1c4 says:
Since a shotgun has a smooth bore barrel, it does not impart tool marks on a projectile like a rifle does. Moreover, the discharge of a shotgun usually consists of a large number of spherical balls. Only a few of those, and part of their surface, ever contacts the barrel wall. This is a long way of saying that no ballistic information can be extracted from the weapon.
Now, if the actor had left expended cartridge cases at the scene, it might be possible to match the firing pin and breech face indentations.
After testing, the weapon should, of course, be instantly returned.
It’s the lack of return, more than the seizure, that is the harm done to the citizen. I wanted to say, “crime,” but The State has broad immunity when it deliberately commits what would otherwise be a crime.
October 2, 2009, 12:07 pmDangerMouse says:
“Mere possession of firearms is not, generally speaking, a crime.”
Yeah, it’s generally, you know, a fundamental right…
October 2, 2009, 12:11 pmMalvolio says:
If the police lied on their affidavit and said that they had evidence Bowen lived in the house or was hiding there (uninformed speculation is not, of course, evidence), wouldn’t that be sufficient to strip them of qualified immunity?
If the police told the truth on the affidavit (assuming the truth is, as DWC says, “a former girlfriend said she thought he might be ‘hiding out’” there), isn’t there some kind of accountability against the magistrate who issued the order?
October 2, 2009, 12:18 pmDWC says:
Re Malvolio’s post, the affidavit stated that the police had “determined” that Bowen “resided” with the Millenders. The only evidence of that conclusion was the former girlfriend’s statement, when asked by the cop if Bowen was “staying” at the Millender’s residence, “I believe so. If I’m not mistaken. I believe that’s where he’s hiding out at.”
In the affidvait the cop stated he checked various gov’t databases (DMV records, utilities records, etc.). What he left out of the affidavit was that none showed that Bowen resided at or lived with the Millenders. (Because the police knew that Bowen had lived with the Millenders in the past [he was Mrs. Millender's foster child] it was unsurprising that the police would be checking the Millenders’ residence as a possible current residence for Bowen.)
We argued to the district judge that the affiant made material misstatements & omissions; the district judge didn’t agree.
Re SeaDrive’s post, Mrs. Millender got her gun back some many months later.
donald w. cook
October 2, 2009, 12:41 pmCarLitGuy says:
I am left with the troubled impression that the officers here made deliberate ommisions and misstatements in seeking a grossly overbroad warrant, then relied on the review of others, unaware of those ommisions, to provide a patina of reasonablemness to an unreasonable search. Whether this was due to malicious intent (for purposes of harrassment, etc), a desire to engage in an unconstitutionally overbroad search of a marginally invovlved third party’s home as pretense for investigation of other crimes, simple incompetence, or some combination of the three, I can’t tell.
Under these circumstances, (and based on a quick read through) I can’t call “balls and strikes”, but my gut tells me the Dissent leans closer to the truth of the matter. Maybe after I’ve had a chance to digest the court’s summation of its limited immunity jurisprudence a little longer, this will become a ball/strike decision for me – but as a fan in the stands, I am definitely cheering for the Dissent on this one.
October 2, 2009, 1:27 pmLarryA says:
In California? It would be simple to establish that the receiver (by serial number) belonged to the foster mother.
A felon mounting a new, legal barrel to a shotgun he’s stashing? I think that’s a long stretch.
October 2, 2009, 3:18 pmgullyborg says:
That’s assuming she legally bought and registered it.
October 2, 2009, 3:46 pmGene Hoffman says:
California does not centrally register long arms – only handguns.
-Gene
October 2, 2009, 5:30 pmjccamp says:
Maybe it would help to look at this another way:
Mr. Bowen, a convicted felon (is that true? the link and the OP are unclear.), was wanted for the assault/attempted murder of his girlfriend. She told the police that she thought he was probably living at his foster mother’s. The detective checked several databases and discovered that the suspect had used that same address any number of times over the years, and in fact, had resided there on and off between other (sometimes temporary) residences. The police obtained a search warrant for the house based on the suspect’s past history of living there, and on the opinion of the girlfriend, who certainly was in a position to predict the suspect’s actions. Remember, this is only “probably cause’, or “more likely than not.” When listing the items to be seized, the officer was lazy and used boilerplate, although certainly if the suspect was a convicted felon, the mere possession of any firearm and/or any live ammunition represents a separate felony offense. Under California statute, there is enhancement for criminal acts occurring under gang membership or gang activities. The detective also added boilerplate for gang accoutrements, thinking he would somehow connect the assault to gang activity. Although the trial judge disallowed this line of reasoning, I am personally acquainted with successful government theories that open, excessive violence (under some specific circumstances not too dissimilar from this assault) is typical of and consistent with gang activity. So, I’d say good try by the detective, but a miss this time. Hardly evidence of bad faith though, and hardly disqualifying the officer’s immunity.
The entire (warrant) process is constructed so that, both internally and externally, a number of ranking police officials, lawyers, and ultimately, a judge must review and approve the officers’ work product. Given there does not seem to be any overt or deliberate falsehood in the affidavit, then the process in effect absolves the line officer of culpability should things later go south. The officers followed the rules, did some investigation, obtained a warrant and seized items that potentially could have been evidence against the suspect. Ultimately, the items were returned when the proof connecting the items to the suspect was lacking.
So, why all the talk about the cops being such bad guys?
I would also note that DWC several times calls the victim a “former girlfriend” when she is cited as the source of the information about the suspect living back at Mom’s, as if she’s some person the suspect used to know. I would suggest she was only the “former” girlfriend dating from the time the suspect tried to shoot her, which presumably, was fairly close in time to the warrant service (although, again, the record and the link are unclear about how much time passed between the two).
As for the theory that “One would not ‘hide out’ at one’s regular place of abode.“, I have to say that actually, in my personal experience, extended family members’ residences are among the most popular “hide-outs.” Likewise, the reasoning that “that a hide-out is not the same as a residence & hence not as likely to have a subject’s personal belongings.” is faulty beyond belief. I appreciate that DWC is a paid advocate for the plaintiffs, and as such, is doing his best to represent his clients and obtain a nice financial settlement. But it’s hard to keep a straight face while reading statements like those, while he is simultaneously complaining about the detective’s affidavit.
October 2, 2009, 5:53 pmDavid Schwartz says:
A gun is the type of thing a felon would not keep at his regular place of residence if he could avoid it — specifically because of fear it might be found in a search. And if he was hiding out someplace, presumably that would be a place he felt safe getting to and where he was not generally known to be — the perfect place to hide a gun so that it won’t be found in a search and you can get it if you’re in trouble, even if your regular abode is being watched.
Some people have a gun in case trouble comes to them. Others have a gun in case they need to go to trouble. In that case, your hideout (if you have one) is the most logical place to keep the gun.
October 2, 2009, 7:03 pmDWC says:
I appreciate the post by jccamp. Thoughtful and intelligent challenges to one’s position are always helpful and deserve a response.
Regarding Bowen’s criminal background (e.g., is he a felon or not) the affidavit did not claim Bowen was on probation or parole, nor that Bowen had a criminal history, nor that Bowen had ever been arrested and/or convicted of any crime. Except for Bowen’s assault on his girlfriend and that Bowen was a gang member, the affidavit says nothing else about Bowen, at all. The affidavit says nothing on whether Bowen had any previous connection to any weapons-related offense, nor any connection to any weapon of any sort—except to the “black sawed off shotgun with a pistol grip” described in the affidavit. This is important because in determining p.c. for the warrant, the reviewing “court is limited to the information and circumstances contained within the four corners of the underlying affidavit.” E.g., United States v. Stanert, 762 F.2d 775, 778 (9th Cir. 1985).
So the affidavit provided no justification for seizing guns as evidence of a possible crime of felon in possession of a firearm. And what did gang membership have to do with the assault on the girlfriend? Absolutely nothing. Unless gang membership is per se unlawful, I don’t see how that fact justified seizing every item “showing street gang membership or affiliation with any Street Gang, . . . including writings or graffiti depicting gang membership, activity or identity.” The advantage here for the cops is that it gave them carte blanche to open every drawer, peek into all cubbyholes, and read every piece of paper the cops could grab (which, in fact, they did).
Re the cops being bad guys, not mentioned in the panel’s opinion but in the record, the day before the search the deputies visited the Millenders’ residence, asking for Bowen. Mrs. Millender told them he didn’t live there and that he wasn’t there. The deputies asked permission to search inside; Mrs. Millender asked if they had a warrant. The deputies responded by laughing, then leaving. The deputies returned the next morning at 5am, with a warrant, and broke in without giving adequate knock-notice (there is an audio recording of the so-called knock-notice). The Millenders were kept outside their home for four hours as the officers searched. After the Millender fiasco, the deputies went back to the former girlfriend asking if she had any other ideas. She suggested a motel on Figueroa. During the day, deputies went to the motel, knocked on the door, were admitted by Bowen’s wife, and found Bowen hiding under the bed. You can thus draw your own conclusion on the cops’ motive for executing a nighttime warrant at the Millenders’ residence without adequate knock-notice.
On jccamp’s claim that it “is faulty beyond belief” to suggest that a hideout is not as likely a place for keeping personal belongings as would be a residence, I think it clear that in general hideouts are not used as residences. And the affidavit stated the Millenders’ home was Bowen’s “residence.” Of course, it is true that people (“gang members”) may use a friend’s or relative’s home to keep things, hide incriminating evidence, and so on. Here, though, the question was whether there was a fair probability that Bowen stashed his sawed-off pistol grip shot gun at the Millenders’ residence. No evidence suggested that Bowen was using the Millenders’ residence as his current residence or as a place to stash his guns and/or gang membership. Meanwhile, there was evidence suggesting Bowen was using other location(s) as his residence. What’s more, the former girlfriend’s audio-recorded statement, both in tone and substance (“I believe so . . . If I’m not mistaken . . . ”) indicated a very tentative belief that Bowen could be found at the Millenders’.
Finally, it is true that I am not an objective observer here; I stand to gain financially should the Millenders prevail. I will point out, though, that a state court judge held that the affidavit failed to establish p.c. to search the Millenders’ residence or to believe that Bowen or his gun could be found there.
donald w. cook
October 2, 2009, 7:16 pmjccamp says:
I would be the last person to assert the cops were without fault in this instance. I understand the affidavit must stand on its own. Unfortunately, it seems to be unavailable online. Failing to establish the suspect’s felony conviction record is simply stupid, since the boilerplate language seeking a search for any and all firearms (in effect), when there existed a reasonably accurate description of the weapon used in the alleged assault is self-defeating. However, the failure of both prosecutor and judge to see this failure of logic should absolve the officers of liability. I think it’s fairly likely that the officers were lazy about the affidavit, not intentionally deceptive.
As for the question of gang membership, there are common traits of street gang behavior, including outrageous public violence with no apparent effort to hide one’s identity, proprietary behavior towards females (who are almost chattels), etc. One could perhaps articulate a basis for linking the nature of the alleged assault and typical gang conduct. I concede that there is apparently no such effort in the affidavit, however. Again, I would suggest this is more likely a business-as-routine environment rather than some nefarious scheme by the police to single out the suspect’s family.
The police asked for permission to search the plaintiff’s house, and were refused. They obtained a warrant, lawfully conducted a search in which no one was arrested or harmed, no apparent unnecessary damage was done to the building, and except for a shotgun and a box of bullets, nothing was seized. I am tempted to say something here like “Big deal.” If we define PC as perhaps 51%, then the cops had some inaccurate information and guessed wrong.
Last, I did notice that the “former” girlfriend was somehow unreliable as a source of information when it was about the foster mother’s house, but was spot on when the police went back to her (after the unsuccessful search) and, in effect, asked for her second choice.
This all could have been avoided if anyone within or without the department had actually read the affidavit with a critical eye. If the detective had included some fairly obvious data within the affidavit, some of the questions could have been resolved. Had the detective either left out the rather broad language, or taken some pains to justify the language – which he probably could have done with some small effort – the issue of PC might fallen the other way. However, once the chain of people read and passed on his work product, it became theirs. I see neither bad faith nor such gross negligence that should expose the cop to liability. I would only add that any conscientious officer will try to make a warrant as broad as the affidavit will support. That’s their job. The cops in this instance got the “broad” part pretty well. They just missed on the “supporting” part. A for effort, C- or D for execution.
One last thing: “I think it clear that in general hideouts are not used as residences.” I suggest we’re confusing modern, urban America with the Western movies. Criminals don’t “hide out” in some specialized, out of the way place anymore. Gangbangers, who are probably accurately described as transients under the best of circumstances, will move in with friends, relatives, in-laws, pretty much anywhere with a roof and a bed. Their worldly belongings are probably in the trunk of the car outside, or scattered around the past 3 or 4 places they laid their heads. Firearms are going to be very close, because a gun across town is useless. I don’t know the likelihood of the suspect keeping the specific firearm close; that would depend a great deal on the suspect’s access to guns generally, and the nature of the threat(s) the suspect felt (from law enforcement, the girl’s family, other gangs, who knows?).
Certainly, the foster family has a complaint, but this is hardly a Constitutional crisis, or some wild invasion of rights by an out-of-control constabulary. The cops got lackadaisical. Shame on them. Give the family a new door and a free pass to Disney World or something similar. Then we can move on to issues of importance.
And thanks to Mr Cook for the civil nature of his response. He’s doing his job most capably. He certainly points out the errors in the warrant prep and service. I just don’t think he makes the case for stripping the officers of immunity.
October 2, 2009, 8:19 pmOren says:
Because most of us would grant them this power if they were judicious about returning seized items as soon as practical.
Since we cannot force them to do so by any operation of law, the only avenue left is to attack the search in the first instance (a search that would be OK at its inception provided that the post-search procedure was sane). That is, the only way one can object to the whole farce of police seizing guns and never returning them is to start attacking legitimate searches.
[Sorry for being a downer.]
October 2, 2009, 9:01 pmDWC says:
In jcamp’s most recent post he indicates that the police obtained the search warrant after Mrs. Millender refused consent to the search. In fact, the deputies obtained the warrant before seeking consent. The day after they obtained the warrant the deputies went to the Millenders’ residence and were refused consent. Then the deputies returned the following morning with the warrant, executing it.
I do not fault jccamp for his erroneous assumption. It was understandable. The opinion makes no mention of the visit the day before, or of the timing. Upon hearing that the homeowner had refused consent, the reasonably minded person probably thinks that was the trigger prompting the police to get a search warrant. That, though, did not happen here.
Regarding the “business-as-routine environment” to explain the police behavior, there is much truth in jccamp’s statement. But just because it is routine for the police to do what they did here (and I do believe it is routine behavior) that doesn’t make it constitutional. They used to feed Christians to lions; that don’t make it right. If anything, the “business-as-routine” tends to underscore how ingrained the problem is and the moral culpability of those who know better, i.e., prosecutors and judges. But given the legal immunity judges and prosecutors enjoy with warrants (absolute with judges; depending on the circumstances absolute or qualified with prosecutors), holding the police accountable is the only remedy non-suspects and innocent homeowners like Mrs. Millender have – she was never a defendant in a criminal case and thus had no occasion to benefit from the criminal court’s granting of the suppression motion. And there is authority for holding the officers liable. Greenstreet v. County of San Bernardino, 41 F.3d 1306 (9th Cir. 1994)(Warrant invalid because affidavit did not establish probable cause. Officer who executed affidavit held personally liable because objectively reasonable officer should have known affidavit failed to establish p.c., notwithstanding magistrate’s execution of warrant based on affidavit).
Additionally, in holding the police accountable I would place the greatest blame on the police supervisors and trainers who sanction affidavits like the one at issue here. After all, notwithstanding Article 8 of the “Constitution of the International Military Tribunal” aka Numreberg Tribunal, following orders is a defense. Up to a point.
donald w. cook
October 2, 2009, 9:23 pmDWC says:
An additional point to jccamp’s post I should have included. He seems to trivialize the invasion into the Millenders’ home. Mrs. Millender was 73 years old. Simultaneous with the police pounding on the front door, they broke a large front window, as a “diversion” they said, while playing a pre-recorded announcement that was incomprehensible. Within three seconds of those events, the police broke down the front door and rushed in, dressed as Ninja warriors with guns pointed. (There are audio recordings of the break-in.) And this occurs at five in the morning. I don’t know about jccamp, but if the police did this at my home it’ll take more than a new front door and a free pass to Disney World to make me believe the police were held accountable.
donald w. cook
October 2, 2009, 9:39 pmjccamp says:
We could trade dueling interpretations of what happened ad nauseum, but I’d characterize the warrant service this way. Mrs Millender has a foster son who has been arrested some 40 times over the years. Most recently, he allegedly shot at and attempted to kill, in broad daylight and in full public view, his ostensible girlfriend for the offense of daring to leave him. Over the years, this same man has lived with Mrs Millender on and off. The police came to her home and asked for permission to look inside for the armed and presumably dangerous foster son. Mrs Millender stood on her rights, as is her due, and denied the officers entry. What happened next should not have been a surprise, given the history. The police came back with a warrant. They came at a time when danger to themselves and others in the neighborhood would be minimized, by trying to catch the suspect asleep and thus avoid a pitched gun battle. Officers will cause a disturbance or diversion at one side of a building to draw attention to that point, while simultaneously forcing entry at another point. This is just common sense, when you’re walking into a potential confrontation with a violent gang guy who shoots at a woman because she left him (he’s married to yet another woman, right?).
It perhaps sounds a lot more reasonable when put this way, I think. I’m not trying to trivialize the warrant service, but neither am I trying to make this an egregious violation of an innocuous homeowner. The cops can only act on what they know at any moment in time. The suspect had previously lived with the relatives. The girlfriend said she thought he was back there again. The police went to the house and asked first. There is a certain inevitability about what happened next.
Not returning the shotgun and cartridges in a timely fashion is another issue completely from the warrant service. I have no clue why that was/was not done. Maybe the homeowner could not provide proof of ownership of the shotgun. Maybe someone else in the house was under investigation, and the return was delayed for some investigative reason. Or maybe the Millenders lived in the wrong zip code, which reasoning should be sanctioned.
Somehow, I suspect the Ninth will more likely see Mr Cook’s POV rather than mine. But hope springs etc.
October 3, 2009, 6:03 amKen Arromdee says:
Officers will cause a disturbance or diversion at one side of a building to draw attention to that point, while simultaneously forcing entry at another point. This is just common sense,
Only if you assume the people in the house are guilty. This sort of behavior is exceptionally threatening and intrusive to any innocent people involved.
October 3, 2009, 6:12 amPintler says:
I’m curious about this one, because I have heard it in other situations involving firearms, e.g. returning seized guns post Katrina, or following a traffic stop. In general, I can’t prove ownership of anything (titled items like cars and the house excepted). Other than saving a receipt for a limited period for returns or warranty, I don’t have a bill of sale for my shoes, socks, pots, pans, tools, or firearms. I do keep a handwritten list of serial numbers for expensive items, but that hardly proves ownership. I engrave my DL number on some things like tools, stereos, etc, but not guns.
Yet I hear this meme – we won’t return your guns unless you can prove legitimate ownership – but only for guns. I have never heard of the police saying, e.g., we are seizing your silverware and won’t return it without you proving ownership. What makes firearms different? Are there states with a statutory assumption that firearms are stolen unless the owner can prove otherwise?
October 3, 2009, 6:53 amPintler says:
Are the police thinking that refusal to consent to a warrantless search is evidence that the suspect must be present, and that it is therefore too dangerous to merely say ‘Yes, we have a warrant’ and conduct the search then? That doesn’t make sense – if they produce the warrant and search, it is exactly as if she consented. It’s not like people don’t consent to searches when the suspect is in fact present.
‘Let us search sans warrant, or we’ll be back on a 5AM no knock’ seems a little too close to ‘let us search sans warrant, or you’ll be sorry’. Asserting rights isn’t supposed to be risky behavior.
October 3, 2009, 7:34 amDWC says:
Re Pintler’s post (“we won’t return your guns unless you can prove legitimate ownership”) though it now seems to be changing some (thanks to Heller) for years it seems that courts (along with cops and prosecutors) tended to treat guns as contraband, i.e., they are seized at the first opportunity and then its hard to get them back.
Years ago (long before 9/11) I represented a businessman who was charged with carrying a concealed weapon without a permit – he had forgotten he had his handgun in his business pouch when he tried to catch his flight out of LAX. The defense to the criminal charge was, I thought, pretty reasonable. What law abiding and sentient human being puts his briefcase through the airport x-ray machine, knowing it has inside a loaded handgun. The prosecutor’s plea bargain policy on this type of case (carrying a gun into LAX) required that the defendant surrender the gun for destruction. But I managed to negotiate a plea bargain to disturbing the peace that included the sentencing judge issuing an order that my client get his handgun back. To no avail. For it turned out that the then municipal court (along with the LAPD) had a standing policy that seized guns no longer needed as evidence were routinely destroyed once the defendant was found guilty of something & the case ended. I flipped out. I sued the municipal court’s presiding judge (Richard Paez at the time I think) (in his official capacity only), LA County and the LAPD, seeking a change in policy as well as damages (from the LAPD and LA County). The superior court judge hearing the case flipped out himself – at me. “Do you know the problem with guns, all the crimes that are committed, and so on.” He thought the destruction policy a noble and worthwhile pursuit to rid the streets of a per se harmful commodity. The case ended when the municipal court changed its policy and the city and county paid my client the money for a new handgun. Boy, was it ever made clear to me just how hostile the criminal justice system was to people getting their guns back.
donald w. cook
October 3, 2009, 8:43 amtom swift says:
This reasoning is absurd. A 5 A.M. break-in by police is not an action likely to enhance the safety of the officers involved.
The police in this case knew perfectly well that their suspect was very unlikely to be in the house; even if he was there the day before, when they requested to search the house, they’d given him nearly a day’s warning that he should skip out. Unless the suspect was brain-dead, he’d be long gone before they staged their raid. The people in the house during the assault could conjecture, quite reasonably, that the ninja wanabees attacking the house weren’t police serving a proper warrant, since they knew perfectly well that no criminals were in the house and no criminal activities were taking place. So, since the attackers were unlikely to be police, they were probably brigands, and armed defense would be justified.
If, on the other hand, the police had delivered the warrant during normal hours and after a conventional knock on the door, armed defense would not be justified, and the police would be at comparatively little risk.
The surprise assault on the house would be reasonably safe if there was a fair certainty that the sole occupant of the house was an elderly lady; but in that case, the assault is hard to justify on the claim that it enhances police safety, since the police would be in no serious danger no matter when they staged their search.
October 3, 2009, 12:02 pmBrett Bellmore says:
Only the fact that there are a lot of people working in the legal system who are convinced nobody should be allowed to own one. So they abuse their positions to take them away whenever they see an excuse.
October 3, 2009, 12:03 pmjccamp says:
@ Ken A -
“Only if you assume the people in the house are guilty.”
For purposes of serving the search warrant only, of course you (as an officer) assume guilty people are present. That’s the point after all. An impartial judge has reviewed your sworn affidavit and agrees that you have probable cause to believe a crime has been, is being or will be committed, and the evidence is located within wherever you’re going to search. In this case, the police believed the premises to be in the control of an armed and dangerous suspect. You will proceed as though that armed and dangerous suspect is within the building, and you plan in such a way as to avoid having to kill him (and possibly causing injury or death to others from your carelessness), say, by sauntering up to the door in broad daylight and waiting for someone to answer the door, and thereby precipitating a gunfight in a residential neighborhood. There aren’t any good solutions, only safer and more practical ones. So, for instance, you yell and scream, and break out a window at the front of the house to distract the dangerous felon you think inside who has just awakened from sleep, while your actual arrest team enters from another direction and tries to take the suspect by surprise.
@Pintler -
In this case, I agree with DWC. There is a general reluctance on the part of the criminal justice system to return weapons of any kind to anyone. The mechanisms are structured to make such returns difficult or impossible. I don’t necessarily agree with this thinking (although I understand it), but the individual officers serving the warrant certainly had no voice in whatever policies were in effect regarding the return of seized firearms. That would be like busting your mail person’s chops because the price of stamps went up. Maybe it a very fair complaint, but it is misguided when directed at the line officer.
As to your second question, the officers originally asked (if I understand this correctly) for permission to enter and look for the suspect. The foster mother refused the police entry, as is her right. Some officers – I do not know if they were the same officers – already had obtained a search warrant for items – not the actual body of the suspect – such as firearms, proof of residency, and gang paraphernalia. Officers returned at 5:00 AM to serve the search warrant, probably hoping to catch the suspect sleeping as a bonus to finding and seizing the physical evidence listed on the warrant. As to why they didn’t serve the warrant immediately when they were refused entry, they could be several different answers that are reasonable, including not having the actual warrant with them, not having permission and plans in place to serve the warrant at that exact time (these things are not done extemporaneously, but typically require command approval, SWAT teams, etc), a decision to wait until 0500 (or some other time) hoping to catch the suspect at home & accomplish a 2-for-1 thing, etc. One reason I think absolutely not considered in the timing was some peevish attempt to punish the foster family for the refusal. Cops get turned down all the time on requests to search, to enter, to search and so on. Does anyone honestly think cops serve search warrants at 5:00 AM just to be spiteful? Cops are too busy for such bullshit.
@Tom Swift -
Sorry, but your post makes absolutely no sense. You make a number of assumptions which are contradicted by personal experience. You’re talking about how you would like things to be, not how they are. 5:00 AM raids work. All the time. The cops were certainly hoping the suspect was inside. They wanted the body much more than any evidence. (75% of cases are pled out or disposed of without a trial. The cops know that.) Most street level criminals are brain dead. That’s why they spend most of their lives institutionalized. The rest of your post is equally invalid. Sorry, but normal rules of logic really don’t apply to most criminals. That’s why they accumulate 40 arrests at a relatively young age, why they try to shoot their girlfriends and then get caught hiding under the wife’s bed, like that.
October 3, 2009, 12:49 pmPintler says:
@jccamp,
Thanks for your response. It’s great to have the viewpoint of someone who is in the business. One of the things that always astonishes me about no knock warrants is that they work so well – the number of people (innocents, officers, suspects) who are injured seems to be much smaller than one would guess. Having said that, I still have grave concerns about what happens when innocent people get raided. If an officer comes to my door with a search warrant, heck, I’ll wish them luck and make coffee for them while they search (or, more likely, lay face down cuffed while they search :-( ) – but I won’t offer any resistance whatsoever. OTOH, I have had my door kicked in before (not by the police), and so have carefully prepared to offer effective defense in the case of a home invasion robbery. So what happens when, God forbid, someone transposes an address or whatever and the SWAT team comes through my door? They are expecting an armed and dangerous suspect, I’m expecting home invaders, it’s dark and we’re shining lights in each others eyes and pointing guns at each other. That’s a recipe for disaster.
It seems to me that the decision to raid, and the tactics used, don’t always take that possibility into account. For one obvious example, from the raids on ‘Cops’ etc, the raiders sometimes are not in uniform – they are scruffy looking guys with a badge on their belt and a ‘DEA’ t-shirt or whatever – not something that would be hard to fake. Moreover, one common justification for no knock raids is to e.g. prevent drugs from being flushed. When you’re after a person, though, you don’t have to worry about them flushing themselves :-). In the case at hand, what’s the downside to showing up, establishing a perimeter and doing the bullhorn thang (‘we have you surrounded, come out with your hands up’). If that doesn’t get results in a half hour (time enough for anyone to awaken, pull on their pants, call 911 to verify, …), then assault, do a methodical slice the pie clearing, send in tear gas, or whatever. It seems to me that would have the great advantage of allowing the innocent to comply safely. I’d love to hear your perspective on why that isn’t preferable to just doing a no knock.
October 3, 2009, 4:30 pmjccamp says:
@Pintler –
Although I don’t have many of the details and they don’t seem available on-line, I do not believe this warrant was authorized as a “no-knock” or immediate entry warrant. I think that is one of DWC’s main complaints. Normally, the law requires an officer to knock and announce his/her presence and authority, and then wait a “reasonable” time before forcing entry. In this instance, DWC asserts that the officers knocked, simultaneously broke out a window as a diversion, played a recording (?) over some kind of PA to comply with the announcement requirement (“while playing a pre-recorded announcement that was incomprehensible“) and then forced entry within a few seconds. Of course, the devil’s in the details. If, say, the police were entering an unoccupied warehouse, then a reasonable time could have been hours while the police obtained keys. If the building is empty, what’s the rush? On the other hand, if the officers suspect the presence of an armed and dangerous suspect, a reasonable wait could in fact be only seconds (in my opinion, but not necessarily DWC’s.)
Just in my personal experience, no-knock warrants are fairly rare these days. That may not be true in every jurisdiction however. No-knock warrants strike me as similar to death penalty cases in that, no matter whether you might agree (or not) with the theory, the reality is that they raise so many ancillary problems they are not worth the considerable effort.
I agree that some (many? lots?) of the TV reality warrants are not done too well from a safety standpoint. The entry team should be easily and clearly identifiable as cops. If there is no genuine danger of the evidence being destroyed, (say, searching for automobile engine blocks), then immediate entry is not a priority. Drug warrants almost always have the risk of evidence destruction however.
As for surrounding the building, and waiting out the suspect, that might work in some very limited circumstances. Are they any other people in the building, or in the neighborhood, who could be at risk if a gunfight happens? Or suppose the suspect sets the building on fire? Can firefighters respond or will they get shot at? What is the danger of creating some multi-day, media event stand-off, that disrupts the neighborhood, spends most of the department’s overtime budget, and makes the government look weak and ineffective? Normally, the operative theory is not to allow the suspect to seize the initiative. We want the suspect reacting to the police, not the other way around. And again, generally – not always – we would want to surprise and overwhelm the suspect before he/she can realize what is happening and react. it’s that old “shock and awe” thing.
I think in the case cited, although the warrant was actually for guns (not easily disposed of), proof of residency (paper records most likely) and indicia of gang membership, what they really wanted – or really expected maybe – was Mr. Bowen. So, they acted as though an armed felon was inside. I don’t think they could sustain a rapid entry based on potential destruction of evidence, given the nature of what the warrant authorized a search for. Again, although the record is unclear, I do not think the search warrant was for the body of the suspect, only for inanimate objects.
Wrong address warrant service is every (well, most anyway) cop’s nightmare. Warrants are supposed to included a description of the location to be searched, which would unerringly lead a reasonable person to a single (correct) location. This means more than a mere street address. Hopefully, the agency’s procedures deal with this by, for example, having the cop with personal knowledge of the location to be searched, personally accompany the warrant service team and point out the specific location before service. Usually when mistakes happen, you could look back and see something like the present case, where apparent routine somehow makes the people responsible for the checks oblivious to, what in hindsight, are glaring errors.
Obviously, I have a particular point of view, but I’d like to think that most cops act in good faith, albeit sometimes foolishly or erroneously, even with laziness or a lack of responsibility – but not malice of intent.
October 3, 2009, 6:56 pmMark N. says:
@jccamp: I agree that “There is a general reluctance on the part of the criminal justice system to return weapons of any kind to anyone.” But isn’t it the case that the criminal justice system is generally reluctant to return anything to anyone, ever? There’s no shortage of innocent people who’ve had their car confiscated and held indefinitely, small businesses who are unable to get their seized computers back, except sometimes years later after they’ve become long obsolete, and so on. There seems to be a problem with post-seizure proceedings in general that makes it quite hard to get anything back in a timely fashion.
October 3, 2009, 9:56 pmjccamp says:
Mark –
I think that there may be – in some places – an emphasis on the financial benefit to an agency of seizing (as contraband, say, or because something was ostensibly used in a crime) real property, and then selling the same because the law in that jurisdiction allows an agency to reap the monetary rewards of such auctions. Such laws, however well intentioned, have burgeoned into well documented organs of abuse. Unclaimed property is also sold after a time. There is a potential for mischief here.
In some police agencies, there exists the typical government bureaucracy of under-motivated and mismanaged (civilian) public employees who handle non-police functions such as property catalog, storage and return. So, yes, although I wouldn’t call it widespread, there is enough disfunction and non-performance to create the anecdotal stories we all hear and which are probably accurate.
Remember that the average civilian employee of a police department probably earns not much higher than minimum wage to start, and isn’t required to have more than a G.E.D. Try to imagine that the fellow who dries your car at the car wash, or brings you your whopper and fries at Burger King is from the same labor pool as most of the support staff at a police department.
I offer this not as an excuse, but as explanation.
October 3, 2009, 11:26 pmSoronel Haetir says:
jccamp,
Government laziness deserves punishment just as surely as malice, perhaps not as /much/ punishment, but punishment nonetheless.
Unfortunately the one point where real oversight is supposed to take place, the magistrate inspecting the warrant request and affidavit the system has completely insulated the decision maker. Police should IMO be able to request a warrant based on any set of information whatsoever and be fully covered by the MJ’s issuance of the warrant. Instead we punish the least culpable in the decision chain while those who make the actual yes/no call continue on their way. Isn’t being part of a self-protecting guild great?
October 4, 2009, 3:54 amjccamp says:
SH -
Although I think writing affidavits is far from rocket science, and I think the cops should be self-motivated to be more responsible – bad police work usually grounded in sheer laziness causes so much bad case law – I agree with your sentiment that, as in the cited case, there exists an entire chain of supervision and checks, which all escape liability because of common membership in the guild, as you put it. In this case, the liability devolves on the lowest ranking (freely substitute “least educated” or “lowest paid” here) component, said lowest ranks also being the only ones unable to guide or influence policy.
October 4, 2009, 7:05 amPintler says:
Thanks for the explanation.
I’m not sure I see the functional distinction between ‘no knock’ and ‘knock simultaneously’ and ‘knock, one potato, two potato, enter’. None of those give the homeowner time to verify who is at the door and peacefully admit them.
October 4, 2009, 8:08 amjccamp says:
“I’m not sure I see the functional distinction between ‘no knock’ and ‘knock simultaneously’ and ‘knock, one potato, two potato, enter’. “
You’re right, of course. The concept is that the cops should wait a ‘reasonable” time to allow the occupant(s) time to come to the door. If the cops can articulate “reasonable” grounds for not waiting very long (Evidence could be destroyed, suspect could get to his gun or take a hostage, etc. Fill in your own unique circumstances as appropriate.), then an accelerated entry is legitimate. Emphasis is on the articulate a reasonable basis, which is a pretty subjective standard and subject to disagreement. See the OP as a perfect example.
A “no-knock’, even if functionally similar to a quick entry, represents an entirely different level of government intrusion. Personally, I don’t like them, because of the potential for misidentification and the mistaken application of self-defense (or the application of sham self-defense) by the person(s) within.
October 4, 2009, 12:09 pmMike Giles says:
I am not a lawyer, nor am I in law enforcement; but it seems that the fact the suspect was once a foster child at the address and an ex girlfriend’s confused statement, is an awfully weak reed to hang a search warrant on. In addition, as another poster noted; the police had already attempted to gain entry earlier. Wouldn’t that alert the suspect, had he been in the house, that the police were looking for him at that location? Or if he showed up later, wouldn’t someone have told him the police were looking for him there?
August 25, 2010, 12:10 pmAmiable Dorsai says:
Because of difficulty or because you don’t think he’d be bright enough? The latter I’m inclined to believe, but replacing the barrel takes less than a minute and requires no tools on many modern shotguns.
August 27, 2010, 11:52 am