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Curt Messerschmidt et al. v. Brenda Millender, As Executor of the Estate of Augusta Millender, Deceased et al.

Oral argument transcript · No. 10-704 · October Term 2011 · argued December 5, 2011 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

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Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument next in Case 10-704, Messerschmidt v. Millender. Mr. Coates. ORAL ARGUMENT OF TIMOTHY T. COATES ON BEHALF OF THE PETITIONERS

Timothy T. Coates: Mr. Chief Justice, and may it please the Court: In Malley v. Briggs and United States v. Leon, this Court set forth a very high standard for denying qualified immunity in the civil context or suppressing evidence in the criminal context under circumstances where a police officer has procured a warrant that is subsequently determined to be invalid. Specifically, the Court held that the initial magistrate's determination is -- is entitled to great deference, and that you'll go behind that only in cases where the officer falsified information or omitted exculpatory information, where the affidavit was bare-bones, or there was some indication that the judicial officer did not perform the function, and then a catch-all provision, where the warrant was so lacking in indicia of probable cause that no reasonable officer Alderson Reporting Company Official 1 could even submit it for a magistrate's determination. And specifically in Malley, the Court said it had to be the actions of an officer that was plainly incompetent or knowingly violating the law. This case arises from a Ninth Circuit decision that we submit does not apply the Court's standards, under circumstances where the officer submitted, far from a bare-bones affidavit, but a highly detailed, factual affidavit that we submit provided probable cause for the search or at least, under the Court's qualified immunity jurisprudence, a reasonable officer could believe that the warrant had probable cause.

Chief Justice Roberts: There -- I suppose one new feature of the case is the fact that these officers submitted the affidavit to their superiors, who were -- were attorneys.

Timothy T. Coates: Correct. There --

Chief Justice Roberts: Have we -- have we addressed that in a prior case?

Timothy T. Coates: I don't know that the Court -- the Court has -- in, I believe, the exclusion context I think I have seen it. I can't recall the case, but I believe it has, and the circuit courts certainly have talked about that as an indicia of good faith, the Alderson Reporting Company Official 1 officer being willing to submit his work to someone else to review it. So --

Justice Scalia: But it isn't good faith here; that's the problem, that we don't have a good faith test. We -- we have a test that goes beyond good faith. Even if the officer is in good faith, according to the test we've set forth, if he's so stupid that -- that he -- he executes a warrant that no reasonable officer could think was correct, he's -- he's in the pot, right?

Timothy T. Coates: Well, that -- that's the test that the Court has set out. But it's a high test, plainly incompetent or knowingly violating the law. And I think what these are additional factual circumstances that show at least the officer is trying to be careful, that this isn't something that's been -- been tossed off.

Justice Sotomayor: Counsel, I thought in the Leon case that, in fact, just like the claim in this case, that the affidavit was submitted to supervisors, and the Court created the Leon test in spite of that. So, to say do we have a case on point, Leon itself is on point. We created the test in the face of supervisors' review. You're not actually, are you, arguing a Nuremberg defense now? Alderson Reporting Company Official

Timothy T. Coates: No. I'm just saying that --

Justice Sotomayor: That -- that simply because supervisors decide, that it's okay, that that --

Timothy T. Coates: No.

Justice Sotomayor: -- exculpates someone from responsibility?

Timothy T. Coates: Certainly not. And as I say, this comes up in the qualified immunity context repeatedly among the circuit courts. They've recognized it as a -- as a factor. But it's not dispositive, not by any mean. I agree with -- I agree with that, Your Honor.

Justice Sotomayor: All right. Then let's go to the other two ways that I think you're asking us to overrule our precedent. The first is the using subjective information that a police officer knows but hasn't disclosed in the warrant. I'm having a little bit of difficulty understanding how an entire warrant regime that presumes that the magistrate has all pertinent information -- and that's why you would be let off the hook -- how you can excuse a police officer when he doesn't place that information in front of the magistrate.

Timothy T. Coates: The way that has generally come up has not been in the validity of the warrant for Alderson Reporting Company Official 1 purposes of the Fourth Amendment, but in terms of qualified immunity for the officer or exclusion of the evidence under -- or not -- or nonsuppression, rather, under the good faith exception. And it's whether the officer, in light of the totality of the circumstances, might not have recognized that the warrant was deficient if the warrant otherwise isn't -- isn't bare-bones. And I think we -- Leon itself in footnote 23 incorporates the Harlow standard of totality of circumstances.

Justice Sotomayor: Tell me how, this case, the bare-bone affidavit was sufficient? All it says is that this defendant is a member of a gang, but when the police officer is questioned, he's asked whether this crime at issue had any connection to his gang relationship, and the answer was no. So, how is the request in the warrant to search for all gang-related indicia anything more than the general warrant that our Founding Fathers in part passed the Fourth Amendment against?

Timothy T. Coates: Oh, I mean, this is not per se a gang crime --

Justice Sotomayor: This is almost like --

Timothy T. Coates: Without -- without a doubt, it's not a -- what we consider a gangland crime, one Alderson Reporting Company Official 1 gang member against the other. It's a domestic assault by a gang member on his girlfriend with a sawed-off shotgun in public, right after police officers that were there to protect her had left. So, it's not gang-related in that sense. But I don't think that the gang membership is irrelevant to the investigation in this case. You know, as we note, and I think it's fairly recognized, gang members have means to procure and use weapons beyond that of ordinary people.

Justice Ginsburg: So, if you have a gang member and the crime has absolutely nothing to do with gang membership -- that I think is the case here; it's a domestic assault -- as long as you're a gang member, then every warrant can say search for all gang-related information? That's essentially your position, isn't it?

Timothy T. Coates: No, it isn't, because it's always a fact-specific inquiry. The Court's made that clear in Illinois v. Gates and for qualified immunity in Anderson v. Creighton. We're --

Justice Ginsburg: But you -- you said this is domestic assault. There is no gang activity involved in that assault, right?

Timothy T. Coates: Well, the gentleman is using a sawed-off shotgun, which is a weapon associated with -- Alderson Reporting Company Official 1 with gangs. I don't think it's a stretch for an officer to think that there might be some connection to the manner in which he procured that weapon, might hide that weapon --

Justice Ginsburg: So, anyone who has a weapon and is a member of a gang then can be -- there can be a search for any and all weapons and material related to weapons?

Timothy T. Coates: Well, it depends on the circumstances of the crime that you are investigating. Here we have an assault, we have a domestic assault with indications that the gentleman intends to continue it. And, indeed, that's why the warrant is for all weapons, because it would make little sense to say you can go and you can find a sawed-off shotgun --

Justice Ginsburg: I'm -- I'm on to the part about all gang-related activity, when the crime has nothing to do with the -- with the gang. Let's -- let's stick to that. Then guns is another issue. But this said warrant to search for any and all gang-related items?

Timothy T. Coates: Correct, Your Honor. But the point is that's to be used to possibly tie Mr. Bowen to any weapon that was found. It's identification information. If they found, for example, the sawed-off Alderson Reporting Company Official 1 shotgun there and his gang colors with his gang moniker, that would certainly help to tie him to that shotgun.

Justice Ginsburg: But they didn't need to tie him to the shotgun. They had photographs of him with the shotgun.

Timothy T. Coates: They have some evidence, but you don't have to stop just because you have some evidence. I mean, you're entitled to build your case as strong as you --

Justice Ginsburg: What -- what do you need more than here he is with his gun? The defendant himself and his gun? I mean, what --

Timothy T. Coates: Well, if you found the actual shotgun there wrapped in his -- in his gang -- gang colors with his gang moniker, I mean, it would make an even stronger case. And I also note, say you find a .45-caliber pistol wrapped in his gang colors with his gang monikers. I don't --

Justice Sotomayor: What do we do with the officer's testimony when he said -- "Did you have any reason to believe there were any more weapons in the house?" He said, "No." What -- when an officer says that, why would then he think that he has complete license to go and ask for a warrant that's looking for more guns, when there's only evidence of him possessing Alderson Reporting Company Official 1 one?

Timothy T. Coates: Because, again, the nature of gang membership is that gangs --

Justice Sotomayor: So, you're answering -- you're answering Justice Ginsburg by saying that any time a gang member commits any crime, the police are entitled to seek a warrant that permits the search for anything they have in their home that relates to their gang membership and to -- to guns?

Timothy T. Coates: No, because I think it depends. Here we have a crime that definitely involves a gun, involves an illegal gun --

Justice Sotomayor: That did not involve -- by the officer's admission and your own, that wasn't gang-related.

Timothy T. Coates: The assault, correct.

Justice Sotomayor: The assault --

Timothy T. Coates: But the manner in which he procures the weapon, might dispose of the weapon, and nature of the weapon itself --

Justice Sotomayor: But wait a minute. That has nothing to do with the gang, unless you're saying that you had proof that the gang did something illegally in helping him procure the weapon. What information did you have to suggest that? Alderson Reporting Company Official

Timothy T. Coates: Again, the nature of a sawed-off shotgun; it's an illegal weapon in and of itself.

Justice Sotomayor: Counsel --

Chief Justice Roberts: Whose house -- whose house was this?

Timothy T. Coates: Augusta Millender's house, Ms. Millender's home.

Chief Justice Roberts: So, it was not the defendant's house?

Timothy T. Coates: Correct. No, he was a foster son who had come back to stay.

Justice Breyer: To what --

Justice Kagan: Mr. Coates -- I'm sorry.

Justice Breyer: To what extent are we supposed to take things that aren't in the affidavit or the warrant itself as relevant? I mean, the one thing that bothers me as I read the affidavit, it doesn't say someone else is living in the house. At least I didn't see that. And then the statement that Justice Sotomayor said, well, that's later on in a deposition. So -- so, if I were the magistrate sitting there and I read the -- the affidavit, I might think I did have cause, at least it's close maybe, but -- to allow them Alderson Reporting Company Official 1 to search for all the guns in the house. I might think they all belonged to him. And, anyway, I might think he thought that this could be used to -- other guns could be used to go after her again. But when I read he says, oh, I had no cause at all for thinking that -- why isn't that the end of it, if we're supposed to take that into account?

Timothy T. Coates: Well, I mean, again, I think, as he sets forth his experience as a gang officer and the manner in which gangs dispose of, procure weapons --

Justice Breyer: But he didn't say much about the gang.

Timothy T. Coates: No.

Justice Breyer: I'm asking you a specific question. I mean, if I were supposed to take into account his statement, I had no reason -- to paraphrase it a little -- for thinking that any of these guns, other guns, were going to be used for any purpose that's illegal -- if he'd said that afterwards, if I take that into account, I say, why isn't that the end of the case? He had no cause to ask for the other guns, period. Now, that was --

Timothy T. Coates: Well --

Justice Breyer: -- the question, I think roughly, that you were being asked, and I would like to Alderson Reporting Company Official 1 hear the answer. I thought the answer would be: I don't have the right to take it into account. Now, do I or don't I?

Timothy T. Coates: Well, I mean, it's an -- it's an objective standard. It's what a reasonable officer would do with the facts before him.

Justice Breyer: Wait. Before him?

Timothy T. Coates: Yes.

Justice Breyer: Or before the -- is -- do I look at the affidavits and the warrant, or do I also look at things that are in neither of those documents but were in the officer's head?

Timothy T. Coates: For purposes of determining the Fourth Amendment validity of the warrant, the Court has said you -- you look at the warrant. Under the qualified immunity test and in the criminal suppression context of good faith, you can go outside that and look at the totality of what the officer knew and, if in light of what he knew, whether he could have believed it was so.

Justice Breyer: All right. So, if I look at whether he was in good faith, if he has any training at all, I would guess that if he thought that there is no -- I don't remember the exact words -- no reason, no reason to believe there would be any weapons in the Alderson Reporting Company Official 1 house, no reason to believe there would be any handguns in the house, and then I say, I want a warrant to search for handguns in the house, it looks like you're asking for a warrant to search for that for which you have no reason to believe it's there. Now, that I would have thought was not good faith. That was contrary to the Fourth Amendment. Why isn't it?

Timothy T. Coates: Because you -- you still have, under 1524(a)(3) of the California Penal Code, the -- the ability to search for items that might be used with the intent to commit another crime. And I think if this was --

Justice Breyer: Even though you can search a person's house -- why don't I search the person's house for an atomic bomb? And I say: Why are you doing that? He says: I have no reason to believe it's there. But that is a constitutional search?

Timothy T. Coates: Well, again, I think -- going back here in terms of -- stepping back from good faith as opposed to probable cause, I don't think it's irrelevant that this guy is a gang member. I don't think it's unusual to think that, while you might know specifically whether there's a handgun or not --

Justice Scalia: Excuse me. Why are you going back to good faith? I mean, that's -- Alderson Reporting Company Official

Timothy T. Coates: Well --

Justice Scalia: -- that's what I think is the problem with this case. If it's a good faith test, you come out with one result. But the test we've expressed is not good faith. This -- this police officer could have been in the best of faith, but if he's a very bad police officer, he's in the soup, right?

Timothy T. Coates: Yes.

Justice Scalia: We don't have a good faith test for this purpose.

Timothy T. Coates: Sure. But a -- but the standard is plainly incompetent or knowingly violating the law, and I think -- again, there's enough detail in there that I don't think it is illogical to say there's some connection between gang membership and the possibility or even the fair probability that there are other weapons in a residence.

Chief Justice Roberts: Of course --

Justice Scalia: So, whenever -- I'm sorry.

Chief Justice Roberts: I was just going to say, of course you're making the case somewhat harder for yourself because the issue here is whether it was reasonable for him to say let me check and see what my superiors think about this and then, after that review, for him to say let's see what the magistrate thinks Alderson Reporting Company Official 1 about this, right?

Timothy T. Coates: Correct. It's a -- it's a further step back, because it's whether it's even reasonable for him to ask the magistrate for a determination --

Justice Breyer: What cause is there to think -- what cause is there to think that the gang guns will be used to commit a crime?

Timothy T. Coates: This is a gentleman who had just perpetrated an assault with a sawed-off shotgun. He didn't make -- specify, in terms of his threat, that he would confine any further attack to a sawed-off shotgun. I just don't think it's a stretch of logic for an officer to believe that if he found a .45-caliber pistol there wrapped in gang colors that he should be able to seize it to prevent a future attack.

Justice Scalia: But the -- the warrant didn't just authorize, you know, firearms wrapped in gang colors. It allowed him to search for any evidence of gang membership, right?

Timothy T. Coates: Correct.

Justice Scalia: But what possible purpose could that serve?

Timothy T. Coates: Again, because the evidence of gang -- indicia of gang membership could be used to tie Alderson Reporting Company Official 1 him to things in the residence that you might find, absolutely. I mean, it's an identifying characteristic of Mr. Bowen.

Justice Scalia: If they were wrapped in it, yes. But we know he's a gang member.

Timothy T. Coates: Sure.

Justice Scalia: So, all that the finding of gang membership decals or whatever they wear -- all that would show is, indeed, this guy was a gang member.

Timothy T. Coates: And present --

Justice Scalia: And even then --

Timothy T. Coates: Well -- excuse me, Your Honor. And present in that particular premises, it might show ownership or control, might show access to the weapons. It's not irrelevant to that.

Justice Scalia: But they -- they knew he was in that premise. I mean, that -- I really don't understand how you can possibly search for indicia of gang membership. When you know the man's a gang member, so what?

Timothy T. Coates: Well, again, Your Honor, it ties him closer -- it shows him there at their property. If we see a photograph --

Justice Sotomayor: But tell me something. There's 10 people in this house. There's 10 people in Alderson Reporting Company Official 1 this house, and as I understand it from the questioning, they also knew other gang members were there. So, even if they found gang colors, did they tell the -- the magistrate that -- what would that prove when there's multiple members in the house?

Timothy T. Coates: Well, you could find, again, gang -- indicia of gang membership as to him individually with his moniker.

Justice Sotomayor: Well, but it's not limited to that.

Timothy T. Coates: Well, correct. And he's also a member of several gangs. So, you could find unique colors for one of his gangs and not for the others.

Justice Sotomayor: What does that have to do with anything other than a general search --

Timothy T. Coates: Because, again, it's evidence that could --

Justice Sotomayor: -- a general search in the hope of finding evidence of other crimes?

Timothy T. Coates: No, because it --

Justice Sotomayor: That's what it sounds like.

Timothy T. Coates: No, because it would tie him to anything found in that residence. Again, if you found a .45 caliber pistol -- Alderson Reporting Company Official

Justice Ginsburg: What about the provision for any photographs that depict evidence of criminal activity? That seems to me as general as you can get. Photographs depicting evidence of criminal activity.

Timothy T. Coates: That actually is in the section that deals with indicia of gang membership. It has been carved out by Respondents here for the first time as a separate category. I note it was not argued down below that way; it was not viewed at the district court that way; it was not viewed by the circuit judges that way. And I do have to say that we're sitting here looking at 11 judges and, like, 6 attorneys have looked at this, and they've never brought that out separately. And now we're saying that should have jumped out to the officers separately. I think we cite case law saying that you should interpret that within the context of the entire provision, which is the indicia of gang membership provision. And if I may, I'd like to reserve the balance of my time for rebuttal.

Chief Justice Roberts: Thank you, counsel. Mr. Srinivasan. ORAL ARGUMENT OF SRI SRINIVASAN ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, IN SUPPORT OF THE PETITIONERS Alderson Reporting Company Official

Sri Srinivasan: Thank you, Mr. Chief Justice, and may it please the Court: When an officer follows the favored practice under the Fourth Amendment of obtaining a warrant from a neutral magistrate before conducting a search, the officer in all but the most narrow circumstances can rely on the magistrate's independent determination of probable cause, without fear --

Justice Kagan: Mr. Srinivasan, there are two categories of materials here. One is the search for other guns. The other is the search for anything relating to gang membership. If we think that those two categories present different questions, if we think that one is more beyond the bounds than another, that the officer might have qualified immunity for, let's say, the guns but not the evidence of gang membership, what would happen in this case at that point?

Sri Srinivasan: Well, I think one of the questions that would arise is whether the one as to which you thought there was a problem would expand the scope in a meaningful way, because if -- let's take Your Honor's hypothesis that there's less of a reason to be concerned about the firearms-related aspects of the warrant than the gang-related parts of the warrant; then the question would arise whether you would have a Fourth Alderson Reporting Company Official 1 Amendment violation in the first place, because if the gang-related parts of the warrant didn't expand the scope of the search in such a way that would implicate independent privacy interests, there wouldn't be a Fourth Amendment problem with that aspect of the warrant. And, therefore, there -- you wouldn't have a qualified immunity issue for sure.

Justice Scalia: And what does that depend on, whether you would look for the indicia of gang memberships in places where you wouldn't look for guns; is that it?

Sri Srinivasan: That's right. You look -- you look at the two aspects of the warrant, and you ask whether the second one, which is hypothesized to be the problematic one, would allow you to search in places or search with more intensity than the first --

Justice Scalia: Well, if you're looking for photographs that show gang membership, I guess you could look through photograph albums. You wouldn't really look there for guns, would you?

Sri Srinivasan: Well, but -- no. I think the relevant language is at page 52 of the Joint Appendix. That's what sets forth the two paragraphs at issue. And the first paragraph, which Justice Kagan supposes doesn't raise a problem -- and I'll engage that Alderson Reporting Company Official 1 assumption -- it provides not only for searches of all firearms, but it provides, and we think legitimately, for searches of any receipts or paperwork showing the purchase, ownership, or possession of the handguns being sought. And so, if -- and paperwork certainly includes photographs, because if you find photographs of an individual carrying a particular firearm, that's good evidence. And so, photographic evidence is within the scope of the first paragraph, not just the second. And so, it does raise the question of whether the second paragraph increases the scope. The other point I'd raise in this respect is that, in the second paragraph itself, the anchor sentence in some respects in the second paragraph is the second sentence, which discusses not gang-related indicia in particular but articles of personal property tending to establish the identity of persons in control of the premise or premises, writ large. And note -- and that provision has not been seen to have a -- have a problem associated with it thus far. The district court thought it was okay. The court of appeals, at page 27a of the petition appendix, seemed to assume it was okay. And that's understandable because there are a legion of cases that support those sorts of provisions --

Justice Alito: There's something -- Alderson Reporting Company Official

Sri Srinivasan: -- including the Ewing case cited by the majority below.

Justice Alito: There's something very strange about the rule that we are applying here. A warrant was issued by a judge of the superior court; isn't that right?

Sri Srinivasan: Yes, I believe so.

Justice Alito: And we're -- so, that judge, who is a lawyer and was appointed as a judge and presumably has some familiarity with the Fourth Amendment, found that there was probable cause to search for all of these things. And now we're asking whether a reasonable police officer who is not a lawyer and certainly is not a judge should have been able to see that this call that was made by a judge was not only wrong but so wrong that it -- you couldn't reasonably think that the judge might be correct. Is there some way to phrase this -- if this rule is to be retained in any form, is there some way to phrase it so that it is narrowed appropriately?

Sri Srinivasan: Well, I -- I think the Court has attempted to do that in Malley and Leon itself, because it has made clear that in the main, in all but the most narrow circumstances, where a magistrate does find the existence of probable cause, Alderson Reporting Company Official 1 the court need not engage in any searching inquiry to determine that qualified immunity is appropriate --

Justice Scalia: But the most narrow circumstance is defined as a circumstance in which no reasonable police officer could have thought the warrant was correct. Why don't we adopt a good --

Sri Srinivasan: Well --

Justice Scalia: -- a good faith test for this as we do in other -- in other --

Sri Srinivasan: Well, I think in some sense, Justice Scalia, you have two -- in response to the two parts of your question. First of all, in defining what is objectively unreasonable in this situation, the Court has used some pretty strong language. In Malley, it spoke in terms of a magistrate who's grossly incompetent. And in Leon, it spoke of --

Justice Scalia: A policeman. Policeman.

Sri Srinivasan: No, it was speaking of a magistrate actually, and not the officers. Because the point is that in order to find that officers are liable in this situation, the officers would have to be so sure that probable cause is lacking that only a grossly incompetent magistrate could sign off on the probable cause assessment. So, it used gross incompetence with respect to the magistrate, which illustrates the degree Alderson Reporting Company Official 1 to which the standard is heightened in this context. And in terms of whether good faith principles come into play in the qualified immunity context, what the Court said in Malley is that the same standard for objective -- of reasonableness that governs in the good faith context for suppression purposes also governs in the qualified immunity context under 1983. And so, I think there is room to import into the qualified immunity context these principles of good faith, like, for example, Mr. Chief Justice, the question of whether the officers in question asked superiors for their assessment of whether there's probable cause. And in Sheppard, which was a suppression case, but in Sheppard, at page 9 -- 8 and 9 of the opinion, the Court specifically made reference to the fact that the officer in that case had asked for a probable cause assessment --

Justice Scalia: Well, I don't like this mishmash. Look, it's either good faith or it's -- however good his faith was, however well he showed his good faith by checking with his superiors or what not, if he made -- if he made an incompetent decision, it's incompetent. And we should not mix the two, it seems to me. Alderson Reporting Company Official

Sri Srinivasan: Well, that -- I mean, certainly I don't want to urge any -- anything upon the Court that would tend to water down the standard in the suppression context, but the only point I'd add to this, Justice Scalia, is that when you're looking at it from the perspective of a reasonable officer who's trying to assess whether he should go forward and ask for assessment of probable cause from the magistrate, one consideration that seems natural to take into account is what actions the officer has taken, not just the quantum of proof that the officer has put in the affidavit but what actions has he taken. Has he asked for a -- has he asked his supervisor --

Justice Scalia: That would be wonderful if the test was, was this -- did this officer know that this was a bad affidavit and was acting in bad faith in executing it? If that was the test, then indeed the fact that he had checked with his superiors and all of that good stuff would -- would have some relevance.

Sri Srinivasan: The test as outlined by the Court in Malley is whether it's objectively reasonable for the officer to rely on the magistrate's assessment of probable cause.

Justice Kagan: Mr. Srinivasan --

Justice Ginsburg: I though the test was "so Alderson Reporting Company Official 1 lacking in indicia of probable cause as to render official belief in its existence unreasonable."

Sri Srinivasan: It -- the Court did say that, Your Honor, and the Court put the formulation in a number of respects in Malley itself. It said, "We hold that the" -- this is at page 344: "We hold that 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 arrest." And I think that's where the Court then goes on and articulates what Your Honor just quoted. But then the Court later says: "In Leon" -- and this is at page -- this is at page 345: "In Leon, we stated that 'our objective faith' -- 'good faith inquiry is confined to the objectively ascertainable question of whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization.' The analogous question in this case," and it goes on to speak about the analogous question.

Justice Kagan: I guess the question, Mr. Srinivasan, is, do you think that the current test, that the test as currently formulated, is sufficiently protective of police officers? Or do you think that we Alderson Reporting Company Official 1 need to change the test in order to give police officers the protection they need?

Sri Srinivasan: We think if the current test is applied properly, it's sufficiently protective. And really the question is how it's applied. And in this case it was applied in -- in a way that I think is not sufficiently protective of police officers.

Justice Scalia: Of course, you could say that about any test, you know? If you apply it protectively, it will protect.

Sri Srinivasan: You could --

Justice Scalia: And if you don't apply it protectively, it won't protect.

Chief Justice Roberts: Did you --

Justice Scalia: I'd like a test that, you know, that protects when it ought to and doesn't protect when it ought not.

Chief Justice Roberts: Did you say apply protectively or correctly?

Sri Srinivasan: Applied -- well, I meant to say applied correctly.

Chief Justice Roberts: Okay.

Sri Srinivasan: If applied correctly -- I apologize if I misspoke. If applied correctly, it should sufficiently protect -- Alderson Reporting Company Official

Justice Kennedy: In the background of this case is -- is this question: A suspect has a weapon. He flees. As a general rule, do you think that warrants can say that when they search the home or the place where this person is likely to be, they can seize all weapons? Just as a general rule?

Sri Srinivasan: No -- not necessarily as a general rule, Justice Kennedy. It has to be context-specific. And here you had a lot more than that. You had an individual who had perpetrated an attempted murder, who was a known member of a violent gang, who had -- who had perpetrated physical assaults against this victim before, and who had directly threatened the victim that he would murder her if she ever went to the police and that he was going to kill her.

Justice Sotomayor: You keep adding facts that weren't --

Justice Kennedy: So -- so, the test is whether or not he is likely to commit another crime?

Sri Srinivasan: Well, that's the test that --

Justice Kennedy: I mean, that's -- I thought the Petitioner said -- I didn't have the time to interrupt -- that under California law, they can search Alderson Reporting Company Official 1 for anything where he's likely to commit another crime.

Sri Srinivasan: Yes, this is a very important point, Justice Kennedy. At page 48 of the joint appendix, the language of the relevant California statute is set forth. The California provision is section 1524(a)(3) of the California Penal Code, and it authorizes a search for and seizure of items where they're possessed by a person with the intent to use them as a means of committing a public offense. And that's the provision that was invoked this very warrant. And these -- and that --

Chief Justice Roberts: Finish your sentence.

Sri Srinivasan: Just the one sentence. That provision is by no means an outlier. It's in Federal Rule of Criminal Procedure 41(c)(3), and it's in the Model Penal Code of Pre-Arraignment Procedure at section 210.3, subsection (1)(c). Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Wolfson. ORAL ARGUMENT OF PAUL R.Q. WOLFSON ON BEHALF OF THE RESPONDENTS

Paul R.Q. Wolfson: Thank you, Mr. Chief Justice, and may it please the Court: Alderson Reporting Company Official 1 In Malley v. Briggs, this Court ruled that police officers do not have immunity for seeking a search warrant when the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable. That --

Chief Justice Roberts: Well, Malley involved a search warrant based solely on a wiretap in which an unknown individual discussed drug use at a party. That was all. It seems to me there's a lot more information here.

Paul R.Q. Wolfson: Well, in -- Malley involved a mistake as to who the person under suspicion was who was mentioned in the -- in the wiretap. But the argument was made in Malley that is exactly the argument that is made here, which is that the police -- it -- one wants to encourage the police to seek warrants from the magistrates, and it would be -- and it would be -- it would be undesirable if the police were not given effectively absolute immunity when they seek a warrant from a magistrate, except, of course, when they -- when they lie, which is a separate question.

Chief Justice Roberts: Here you had a police officer who assembled information he had, truthful information, in the affidavit, submitted it to his superiors, who were lawyers. Then it was submitted Alderson Reporting Company Official 1 to the magistrate, who was a judge. And what you have to say, it seems to me, is that a reasonably competent officer -- not objective good faith or anything like that -- a reasonable -- reasonably competent officer would say: You know, I know the lawyers in the office said this was okay and I know the judge said it was okay, but I know more than them; I know not only that it's not okay, but it's so clearly not okay that I shouldn't have qualified immunity. That seems to me a pretty heavy burden to put on -- put on the cop on the beat.

Paul R.Q. Wolfson: Mr. Chief Justice, I don't think -- I don't think there is any question that in the great majority of cases, officers who seek warrants from magistrates will be immune. And the Court made clear in Malley that it does happen that officers make mistakes, good faith mistakes, as to whether a particular set of facts amounts to probable cause, and in that context when there is a good faith mistake, the officers will have immunity. But the Court also stressed that officers must minimize the risk of Fourth Amendment violations by exercising reasonable professional judgment in applying for search warrants. And so, the Court ruled that an officer will not be immune if a "reasonably well-trained Alderson Reporting Company Official 1 officer," which is the term the Court used, would not have believed that the -- that the warrant affidavit established probable cause. Now --

Justice Alito: Now, is it the case here that a reasonably well-trained officer would not -- would understand that this warrant was defective in authorizing a search for guns other than the shotgun in question, when a provision of the California Penal Code says that a search warrant may be issued to seize items intended for use in committing a crime?

Paul R.Q. Wolfson: A reasonable -- that a reasonable well-trained officer would not have sought the search warrant. I don't think the California Penal Code provision really adds anything to the rest of the case, because it says that you may seek items that are intended to be used in a crime, but you still have to know -- you still have to have probable cause to believe that there are such items. And so, the cases --

Justice Alito: Well, you have your client who has discharged a sawed-off shotgun at his former girlfriend in an attempt to kill her. And he -- he is known to be a member of a violent gang, and he has threatened to kill her. And so, a reasonable police officer would -- could not think, well, he might have some other guns, and he -- and there would be an intent Alderson Reporting Company Official 1 to use those in the commission of the crime that he has threatened to commit.

Paul R.Q. Wolfson: Well, Mr. Bowen is not our client, Justice Alito. Our clients are --

Justice Alito: I'm sorry. Excuse me. Mr. Bowen --

Paul R.Q. Wolfson: No, but this is -- but this is an important point. Our clients are the innocent family that lives in the house where--

Justice Alito: Well, that was just -- that was a misstatement on my part.

Paul R.Q. Wolfson: No, I understand, but -- but I want to --

Justice Alito: They could not think that about Mr. Bowen?

Paul R.Q. Wolfson: But I want to make the point that not only do the police have to have probable cause to believe that there is such an item, they also have to have probable cause to believe that it will be found in the place that they propose to search. I mean, probable cause --

Justice Alito: But the -- all right. It was found that there was probable cause to believe that he was living in these premises; isn't that correct? And you're not contesting that. Alderson Reporting Company Official

Paul R.Q. Wolfson: Well, we are contesting that. We're contesting their --

Justice Alito: You're not -- it's not an issue before us.

Paul R.Q. Wolfson: It's not an issue here. The Ninth Circuit decided the case on the assumption that there was probable cause to believe that Mr. Bowen would be found --

Justice Alito: Well, on the assumption that he was living in those premises, then what is wrong with a reasonable officer thinking he's tried to kill her in the past using one gun; he's a member of a gang; he is very likely to have -- to possess or have access to other guns; those other guns may be found in the home where we believe he is living, and he is intending to use them to carry out the threat that he has promised, the threat that he has made?

Paul R.Q. Wolfson: There are several -- I think there are several problems with that. The first problem is the police don't have probable cause to believe that he has another gun, and they don't -- and they certainly don't have probable cause to believe that any other such gun would be found at the Millenders' house, and I -- the Millenders' house where innocent people live. Now -- and it's not just -- and it's not Alderson Reporting Company Official 1 just that no other such gun would be found at the Millenders', and the Millenders themselves have right to possess handguns for lawful purposes of self-defense. So, it's possible -- of course, it is possible to speculate about the things that the police might --

Justice Kennedy: Well, just suppose they're searching the suspect's own house.

Paul R.Q. Wolfson: Right.

Justice Kennedy: And there's -- he's used a specific gun, a 12-gauge Remington shotgun, and they've -- and they're looking for that. And these facts are the same. He may continue to elude the police; he may attack again. And they -- and they're searching the house, his own house. They see the one gun. They see a second gun. They cannot take the gun, the second gun?

Paul R.Q. Wolfson: No, I would not -- I would not say that, Justice Kennedy, because I think that --

Justice Kennedy: On what basis do you say they can take the second gun?

Paul R.Q. Wolfson: Because if the police are in a place where -- lawfully in a place pursuant to a properly, narrowly drawn warrant, and they -- and they see something in plain view, under this Court's plain view doctrine as articulated in Horton v. California, and there is probable cause to see something there to Alderson Reporting Company Official 1 associate with criminal activity, yes, the police can -- can seize that. But it -- but it's -- there's a big difference between thinking about what the police can do if they enter someplace lawfully and how they can react --

Justice Breyer: Yes, but what's the difference between what you just said and the situation here? You say, if he sees the gun next to the bed, for example, or in the closet, and he's in the house looking for the sawed-off shotgun, he could seize it. He can't unless he has probable cause to think it might be used for a crime.

Paul R.Q. Wolfson: If --

Justice Breyer: And so, how did that change? How did that change suddenly because he happened to see in the house something in the closet, and nothing else changed? Why now suddenly can he take it?

Paul R.Q. Wolfson: I think the assumption, as I understood, behind Justice Kennedy's question was, if the police see something -- happen to see something in the house that is probable cause of a crime --

Justice Breyer: No, but your argument is there was no probable cause for thinking that the guns Alderson Reporting Company Official 1 in the house, if there were other guns, would be used for a crime. Now, your opponent, your brother there, said when I suggested that: Oh, no, that's wrong; there is probable cause to think that any guns in the house would be used for a crime. He hasn't killed the girl yet, and one gun's as good as another. And he might well take one of those other guns and kill her. So, there's probable cause to believe that the guns that are in the house, or at least one could reasonably think so, would be used for a crime. That was his response. Then, as to whether they're likely to be in the house, well, we know this: We know he has a sawed-off shotgun, and we know he is a member of a gang, which is defined as a group of people engaged in definable criminal activity, creating an atmosphere of fear and intimidation. So, well, people like that have guns. And when -- where they live, there may well be other guns. So, it is reasonable for me to think there are other guns in the house and reasonable for me to thin k that other guns in the house would be used for killing this girl if he can get to her. Okay, that's the argument. Now, what's the response?

Paul R.Q. Wolfson: Well --

Justice Breyer: And you don't have to -- Alderson Reporting Company Official 1 you have to show more than that there's no probable cause. You have to show it wasn't reasonable to think that there was probable cause.

Paul R.Q. Wolfson: Because the police did not have probable cause to believe there was any other gun, and they certainly --

Justice Breyer: He's a member of a gang which often has guns, and this expert knows that members of gangs have guns. And the definition of "gang" suggests they're likely to have guns, whether it's illegal to have them or not illegal.

Paul R.Q. Wolfson: But it --

Justice Breyer: That's how he knows that. That's how he knows.

Paul R.Q. Wolfson: But it doesn't -- excuse me. It doesn't necessarily follow that there is probable cause to believe that he has an arsenal of weapons with him at an innocent third-party's house.

Justice Scalia: And the warrant authorized the search for and seizure of all guns, not just the guns belonging to Bowen. And in --

Paul R.Q. Wolfson: That is correct.

Justice Scalia: -- in fact, they seized some of the Millenders' guns, didn't they?

Paul R.Q. Wolfson: That is correct. The Alderson Reporting Company Official 1 police --

Justice Scalia: And why is it -- if there's probable cause to believe that he has other guns, is there also probable cause to believe that any gun found in the house will belong to him? I think not.

Paul R.Q. Wolfson: I would say not, Your Honor, but I --

Chief Justice Roberts: We've been talking -- we've been talking about this for some time as if we're reviewing the adequacy of the warrant. We're not. We're reviewing the reasonableness of these officers' determination that there was probable cause. Do you think it is at all pertinent in addressing that question that the officers submitted the affidavit to support the warrant to Deputy District Attorney Jane Wilson, who reviewed it and signed off on it?

Paul R.Q. Wolfson: I -- I think it can't be dispositive, Your Honor.

Chief Justice Roberts: I didn't ask if it's dispositive. Is it relevant in any way?

Paul R.Q. Wolfson: It could be -- it could be relevant, but I would say it's -- it doesn't -- it doesn't make the case in this case, for a few reasons. First of all, generally speaking, of course, if you Alderson Reporting Company Official 1 can't rely on the magistrate as a -- you know, as a blanket rule that you're not immune, it's hard to understand why the fact that the deputy district attorney signed off on it would have essentially the same effect that the Court rejected in Malley, when it said, you know, there will be a limited set of circumstances where even if -- even if a magistrate issues a warrant, the officer will be liable. So, I don't think that -- I mean, the district attorney and the -- and the superior are on the same crime-fighting team as the -- as the -- as Detective Messerschmidt in this case. Also, we really -- we have no information about what transpired in these conversations with the deputy district attorney. We don't know whether the D.A. said to Detective Messerschmidt: Oh, you know, you're good; this is totally fine. Or whether she said: You know, you're pushing the envelope here, but we might just find a magistrate who will go along with it, so -- you know, so, see what you can get. And the other point is, of course, relying on your superiors and on the D.A. is a double-edged sword in many cases, because that -- in fact, that can establish or go a long way towards establishing Monell liability, if you establish that there's a pattern of Alderson Reporting Company Official 1 superiors and of deputy district attorneys --

Chief Justice Roberts: Do you want -- do you want to encourage officers, when they're applying for search warrants, to have them reviewed by the deputy district attorney or not?

Paul R.Q. Wolfson: Certainly, we want them to -- to encourage that, Mr. Chief Justice. But the point is, in Malley, this Court made clear that, ultimately, a reasonably -- a reasonably well-trained officer must make a judgment himself as to whether the course of conduct that he proposes to undertake could reasonably be thought to be within the law.

Justice Scalia: Ultimately, it's the officer who goes into the Millenders' house, seizes their arms, rifles through their drawers. It's -- it's the officer that does that?

Paul R.Q. Wolfson: Well, the officers who are the Petitioners in this case are the officers who actually applied for the search warrant and who actually drafted the search warrant for the magistrate to -- to sign. Now, they then were present at the search. I think there is a --

Justice Scalia: Oh, I didn't understand that.

Paul R.Q. Wolfson: Yes. Alderson Reporting Company Official

Justice Scalia: They -- they did not execute the warrant?

Paul R.Q. Wolfson: They were -- they were -- they were part of the executing team, yes. They were -- there were --

Chief Justice Roberts: Did they enter the residence?

Paul R.Q. Wolfson: They entered the residence, yes. There were other officers who I think it would be fair to say kind of more -- undertook the more concrete search of the -- you know, of the house from top to bottom. I think there is a different question about when a line officer relies on his lead officer's instructions. And that was actually discussed by the Ninth Circuit in -- in the Groh case, which later came up to -- came up to this Court. But I think the -- the standard that the Court set forth in Malley, the objective reasonableness standard, is really -- it's consistent with this Court's qualified immunity case law --

Justice Breyer: If that is the -- we're using a purely objective standard, another fact that I just want your reaction on is where he says, "I told you never to call the cops on me." Now, he has tried to throw her out of the window or something. He -- he's Alderson Reporting Company Official 1 shot at her. He's trying to kill her in five different ways, and he's shouting: I'm going to kill you and I told you never to call the cops on me. When I first read that I thought, well, maybe he has some -- maybe this is explained in part not just domestic, but he has something to hide. He's afraid she's going to tell the police something. Now -- now, could a person reasonably read those words and think he has something to hide here? His -- and there's something going on, and it's not just domestic? Where does that lead us if we --

Paul R.Q. Wolfson: I don't --

Justice Breyer: Can we read it that way? And if we do read it that way, where does that lead you?

Paul R.Q. Wolfson: Well, the Petitioners have never suggested that reading before. And, indeed, the Petitioners have -- indeed, Detective Messerschmidt testified at his deposition: No, I didn't have any reason to believe that the crime was gang-related. I mean, one of the curious things about the -- the argument that the Petitioners are now making, which is that you can go outside the warrant and import into it the fact that he was a felon -- one of the curious things about that is that the -- is that the officers told the magistrate this is a violent crime, no Alderson Reporting Company Official 1 question; he is a gang member -- not in support of probable cause, but in support of night service. They told the magistrate that they had reviewed all the various government databases, specifically including police databases, but did not tell the magistrate that he had any criminal record at all.

Justice Ginsburg: Mr. Wolfson --

Paul R.Q. Wolfson: But that's so --

Justice Ginsburg: Mr. Wolfson, if -- suppose they had had a warrant to search just for the sawed-off shotgun. You conceded that when they go into the house and they're looking all over, they could look in cabinets and drawers for the -- to find pieces of the shotgun. They come across other guns, they can at least secure -- take those guns for their own safety. There are other people in the house, and somebody might use them. So, what's -- what's the difference in the scope of the search if they have a warrant just to look for the sawed-off shotgun or if they have a warrant that covers any guns?

Paul R.Q. Wolfson: Well, a couple of responses. First of all, I think this Court's decisions in Groh and other courts made clear that when you're evaluating whether -- whether the Respondents were harmed by this Alderson Reporting Company Official 1 violation of their constitutional rights, you have to look at the warrant that was actually applied for and executed, not -- you don't -- you don't compare it to a hypothetical warrant that the police might have gotten if they had applied for a properly limited warrant.

Chief Justice Roberts: To cite Groh -- in Groh, the warrant did not identify the items to be seized at all.

Paul R.Q. Wolfson: That is correct. But the argument was made in Groh -- was, well, there really was no harm because surely the officers had probable cause, and if they had done their work right, that there was I think no question that they would have gotten a warrant, and the --

Chief Justice Roberts: Your answer -- and, again, it seems to me we keep separating these two inquiries. It's not whether the warrant showed adequate probable cause; it's whether or not the officers were reasonable in believing that it did.

Paul R.Q. Wolfson: I understand --

Chief Justice Roberts: And to cite Groh, a -- no reasonable officer could think that a warrant that doesn't say anything at all about what's to be seized complied with the Fourth Amendment.

Paul R.Q. Wolfson: But the argument was made in Alderson Reporting Company Official 1 Groh that essentially this was sort of no harm, no foul, because surely a reasonable police officer could have obtained a valid warrant. And I was -- I was sort of analogizing that to the question that Justice Ginsburg made. I don't think that really is a question of qualified immunity at all. I think that may be a question of damages as to whether you could think, oh, well, perhaps the police might have gotten a valid warrant and so forth. But -- so, I think, sure, it's possible to imagine that the police could have gotten a valid, narrow warrant limited to -- limited to search for the sawed-off shotgun, and -- and certainly not the gang-related activity, but they didn't. And one has to -- one has to measure the harm that the -- that the Millenders suffered by execution of this --

Justice Sotomayor: So, what happens --

Paul R.Q. Wolfson: -- invalid warrant.

Justice Sotomayor: -- below on that question? Following up on --

Paul R.Q. Wolfson: Right.

Justice Sotomayor: -- the same question that Justice Kagan asked your brethren, which is how about we find that it was reasonable to ask for the guns but not for the gang-related materials? What does that do to your claim, and do you disagree with the manner in Alderson Reporting Company Official 1 which he described what the inquiry would be below or before us now?

Paul R.Q. Wolfson: Right. We do disagree. We would submit that the -- that it's still -- it's still invalid. But this is an issue that the courts of appeals have wrestled with under what is called the severance doctrine, which mostly is applied in exclusionary rule cases, not in qualified immunity cases. This Court has actually never explicitly endorsed the severance doctrine, and that is the question -- suppose you have a warrant that is sort of half valid and half valid or maybe half arguably valid but half totally -- you know, totally invalid. What do you do then? And the -- I think at a minimum the record would not permit this Court to -- to resolve that because we don't know from the record before us sort of what part of the search was conducted under what part of the -- of the warrant. But --

Justice Alito: What's to the gang paraphernalia? Why couldn't an officer reasonably believe that there was a probable cause to seize that -- to search for and seize that, because it would link Mr. Bowen with this residence where they hoped to find the shotgun? And you dispute the fact that he is -- that he Alderson Reporting Company Official 1 is associated with that residence.

Paul R.Q. Wolfson: Right. So, Justice Alito, there certainly are circumstances in which it is legitimate to seek for information that links a particular person to a particular location for purposes of establishing criminal liability. The -- you know, there are many cases, for example, where the police come across a meth lab or something like that. And, of course, in that situation the police have a legitimate reason to -- to want to know who is present, whose fingerprints are all over the place, because that would tend to establish that the person is -- is in unlawful possession of methamphetamine.

Justice Alito: And why couldn't a reasonable officer think that that would be the case here?

Paul R.Q. Wolfson: For -- for a few reasons. First of all, the 120th Street address, the Millenders' house, is totally irrelevant to the actual crime under investigation, which took -- someplace else. I mean, it's just a happenstance that the -- that the police are searching -- searching this place. It's not the place. This is not a tavern or a still or --

Justice Alito: No, well, if they have probable cause to believe that the sawed-off shotgun is Alderson Reporting Company Official 1 there -- let's suppose they find the sawed-off shotgun. Then there's going to be an issue at trial: Was it his sawed-off shotgun? And anything that links him to that residence is valuable evidence.

Paul R.Q. Wolfson: But the gang-related indicia part of the warrant is, first of all, much, much broader than that; and, secondly, the Petitioners have never argued until this Court that that was the purpose of the gang-related indicia part of the warrant. I mean, the Petitioners argued that the gang-related indicia part of the warrant is intended to establish his -- his gang membership. And -- because, for example, there might be a -- an increase in penalty if something is a gang-related crime. Even while --

Justice Alito: I thought this was a test of what they could -- what a reasonable officer could have believed, not what they in particular believed.

Paul R.Q. Wolfson: Well, that's correct, but I think, you know, that does not mean that one can engage essentially in a completely post-hoc rationalization of what the objective search by the -- to be accomplished by the warrant is. I mean, the warrant application itself says this is a spousal assault that the police are investigating. There's no suggestion that it's a gang-related crime in any way. Alderson Reporting Company Official

Justice Kagan: Mr. Wolfson, it seems that many of the arguments on both sides are very fact-dependent in nature, that you're asking what inferences can be drawn reasonably from certain facts, from a particularly violent incident, from the use of a sawed-off shotgun, from the fact that this was not his home, from the fact that he was a gang member. And yet, the cases that you cite to us as suggesting what a reasonable police officer should know really are not cases that involve these facts at all. They're cases that state very broad general propositions about Fourth Amendment law. So, how can you get from those cases to what you're saying a particular police officer in a particular set of circumstances ought to know?

Paul R.Q. Wolfson: Well, of course, this Court has never required that, for qualified immunity purposes, that the case -- there be another case exactly on point. And --

Justice Kagan: No. But there seems to be a very large gap between what this police officer has to think about and the cases that you cite.

Paul R.Q. Wolfson: Respectfully, Justice Kagan, I don't think I agree, and I think that it's -- it's useful to look at two related but somewhat different Alderson Reporting Company Official 1 lines of cases, particularly in the Ninth Circuit but, actually, you know, all across the board in the courts of appeals. The first line of cases says if the police have reason or have probable cause to look for a specific object or specific -- even a specific kind of object, that doesn't give them probable cause to look for the whole generic class of objects that are somewhat similar. The leading case on this in the Ninth Circuit is the Spilotro decision, but there are many cases coming both before and after that stand for that proposition. The -- the principle has been applied in many contexts. For example, if you think that somebody is committing fraud for years 1998 and 1999 and there are billing records, you can't -- you don't have probable cause to look for fraud, you know, for the entire records, billing records from 1950 to the present. If you think that -- if you see somebody run over somebody else in a green Nissan Sentra, you don't have probable cause to search for all vehicles including a red Ford -- a red Ford Explorer. This is really that principle in the context of firearms. And it -- and Detective Messerschmidt had the information that the case involved a black sawed-off Alderson Reporting Company Official 1 shotgun with a pistol grip. Now, there certainly are cases --

Justice Alito: Well, to come back to a question that was asked before --

Paul R.Q. Wolfson: Yes.

Justice Alito: -- suppose they were issuing -- suppose the warrant just sought this -- the -- that particular weapon. They execute it, and they come to a room in this house, and it's got Mr. Bowen's name on it, and inside there's a gun cabinet, and there are -- there are a whole -- there's a whole array of guns, legal -- let's say he legally possesses them. There's a -- there's a -- there are assault rifles. There are pistols. And it's known that he's threatened to kill his girlfriend. You say -- would the police be able to seize those?

Paul R.Q. Wolfson: Yes, I think there are many things the police can do. First of all, an assault rifle is illegal. So, that per se is contraband --

Justice Alito: All right. All sorts of legal weapons --

Paul R.Q. Wolfson: Right. Okay. And --

Justice Alito: -- that could be used. Could they -- could they seize those?

Paul R.Q. Wolfson: Well, the police -- if -- and Alderson Reporting Company Official 1 so, one question is, do the police know that Mr. Bowen is a felon? And here I think that is relevant, because they are dealing with what not what is in the affidavit but to on-the-spot judgments. So, if the police --

Justice Alito: Let's --

Paul R.Q. Wolfson: So -- okay.

Justice Alito: -- I'm hypothesizing --

Paul R.Q. Wolfson: Right.

Justice Alito: -- he has a license for all of these.

Paul R.Q. Wolfson: Right. So, I think there are --

Justice Alito: He's not a felon.

Paul R.Q. Wolfson: So, I think if the police have probable cause, in light of the circumstances that they actually encounter at the house, that the guns --

Justice Alito: The circumstances are exactly the circumstances here --

Paul R.Q. Wolfson: That the --

Justice Alito: -- except for the two things that I changed. It's his room, and it's his gun cabinet.

Paul R.Q. Wolfson: The police may be able to secure all of those weapons, certainly so that they pose no danger to anybody else. And if Mr. Bowen is arrested Alderson Reporting Company Official 1 and then, if -- if he is to be released on bail or on pretrial release, it's a very common condition that he not have access to any weapons. The police -- it may be required that he deposit those weapons with somebody else who, you know, is a proper custodian --

Justice Alito: Well, let's say they don't find him. He's still at large. They have to leave the weapons there.

Paul R.Q. Wolfson: I don't think they -- necessarily have to leave the weapons there.

Justice Alito: When they leave. Why? On what ground could they seize them?

Paul R.Q. Wolfson: If there is no -- well, if he's not -- if he's not there, then it's not clear to me that he has a Fourth Amendment standing to challenge anything.

Justice Alito: It's his room. It's his room.

Paul R.Q. Wolfson: It's his room. But if he's -- I mean, but if he's --- if they really believe that the police -- that he is there, that it is his house, there is no reason to believe that his possession of any of these weapons is illegal, there are -- the police can do things to secure them.

Justice Kennedy: I'm putting in my notes Alderson Reporting Company Official 1 that you're not answering the hypothetical.

Paul R.Q. Wolfson: Right. (Laughter.)

Paul R.Q. Wolfson: I think there -- I'm not sure. I don't think the police can say these weapons are just ours, we're going to take them, we can seize them without -- without probable -- without more probable cause.

Justice Alito: They can't say, and we're going to take them under -- we're going to take them so that he can't use those to kill his girlfriend which is what he has threatened to do? They just have to leave them there --

Paul R.Q. Wolfson: No --

Justice Alito: -- and if he happens to come back and -- and get those weapons, and he kills her, well, that's just too bad?

Paul R.Q. Wolfson: But if the police -- the police have -- if the police have probable cause to believe that he -- on the spot that he will use that weapons, yes, they can seize them under that provision of the California Penal Code, but that does not mean they have probable cause when they apply for the -- the warrant, to think that those weapons either will exist -- Alderson Reporting Company Official

Justice Alito: You really -- you really are not answering my question.

Paul R.Q. Wolfson: I --

Justice Alito: My question is: Everything is exactly the same except that it's his room and he's not a felon and he possesses them legally and there they are, and they see them.

Paul R.Q. Wolfson: I think --

Justice Alito: And your answer is they can take them. In which case, my question is, why wouldn't they have probable cause to search for those in the first place? Or they can't take them, in which case I say, well, what about the possibility that he will come back, get those weapons, and carry out his threat using those weapons?

Paul R.Q. Wolfson: They can -- they may be able to take them, but that does not mean that they knew that they existed in the first place or that they would be at the Millenders' house. That's -- that I think is the fundamental difference.

Justice Ginsburg: What happened here when they -- when they -- they did seize weapons that belonged to the plaintiff, Mrs. Millender. They -- they took them because they thought they were the defendant's? But -- not that -- they thought they were Alderson Reporting Company Official 1 Bowen's?

Paul R.Q. Wolfson: It's not clear, Justice Ginsburg. They took them under the authority of the warrant. They did not provide an explanation as to specifically why they were -- why the gun was seized, but the gun was seized. And this -- I think this really the -- this point, that they went into the Millenders' house, searched the house from top to bottom, and seized the Millenders' -- Mrs. Millender's lawfully owned weapon really shows that this case is in the heartland of what the Fourth Amendment is concerned about. I mean, this is exactly the kind of case that the Framers were concerned about when they abolished the general warrant. This is the sort of case --

Chief Justice Roberts: Counsel, do you -- do you contend that anything in the affidavit was false?

Paul R.Q. Wolfson: Yes. False or at least --

Chief Justice Roberts: What --

Paul R.Q. Wolfson: -- or at least misleading.

Chief Justice Roberts: What was that?

Paul R.Q. Wolfson: I think the -- the -- the proposition that Bowen, quote, unquote, "resided" at the 120th Street address and that that -- and that that conclusion was drawn from, among other things, Detective Messerschmidt's search of government databases was Alderson Reporting Company Official 1 material misleading, because he didn't reside there. He may have been staying -- hiding out there, and the search of the government databases which are actually -- the results are actually reprinted --

Chief Justice Roberts: Where did the --

Paul R.Q. Wolfson: Sorry.

Chief Justice Roberts: -- may have been -- may have staying there?

Paul R.Q. Wolfson: That is what Shelly Kelly told Detective Messerschmidt, which is, if I am not mistaking --

Chief Justice Roberts: And you say it was materially false that they said he resides there, and what he knew is that he may have been staying there?

Paul R.Q. Wolfson: He may have been hiding out there. When -- especially when you combine that with all the other information that Detective Messerschmidt actually obtained from the printouts of the databases which are in the JA, which in fact say that he hadn't been at the 120th Street address for several months and that his most recent address was 97th Street, where he lived with -- where he stayed with, at least sometimes, Shelly Kelly and gave it out as his address. So, that -- that is in the respects why we think that this is materially misleading. Alderson Reporting Company Official 1 Of course, we were not allowed to appeal that determination, so that really only half of the case in that respect was before the court of appeals and is before this Court. Thank you very much.

Chief Justice Roberts: Thank you, counsel. Mr. Coates, you have 2 minutes remaining. REBUTTAL ARGUMENT OF TIMOTHY R. COATES ON BEHALF OF THE PETITIONERS

Timothy T. Coates: With respect to the -- the hypothetical that Justice Alito postulated in terms of finding other weapons there, and Respondents' counsel to say, well, we might go on the plain view doctrine, I think these are circumstances in which we note that you want to encourage officers, when they can, not to -- not rely on exceptions to the warrant requirement. And here, if anything, the officers in an abundance of caution attempted to get a warrant, contemplating those precise circumstances. I don't think they should incur liability for -- for going to that extra step and that extra precaution. And, again, a step back from whether there's actually probable cause, but whether a reasonable officer could even believe that might be the case for purposes of sending it to a magistrate. And I think, under those circumstances, you Alderson Reporting Company Official 1 want to encourage officers to seek a magistrate's determination and not try and rely on on-the-scene exceptions to the warrant requirement to try and justify seizing weapons under those circumstances. With respect to Justice Scalia's concern about the probable cause to seize all guns as opposed to guns belonging to Bowen -- and I think the notion is that Bowen, being a resident and that being established for purposes of this contention at this point, still down at district court, but it was assumed for purposes of the Ninth Circuit that he was a resident, that as a resident, that he would have access to that firearm. And I think that this was bolstered by the fact -- again, his status as a gang member. We cite the Chicago Housing Authority v. Rose case, which talks about the manner in which gang members often store and use weapons at family members' homes. I mean, it's an unfortunate part of the -- of the gang culture. So, it's not unreasonable for an officer to think there might be probable cause at the very least to seize any weapon found there, even if ultimately facts developed that it is in fact not Bowen's weapon. And this also goes to the indicia of gang membership and why it's reasonable even to ask, because that may be one of the means by which we could tie a Alderson Reporting Company Official 1 particular weapon to Bowen depending upon what's found during the search. This is a very high standard as established by this Court, which is essentially plainly incompetent or knowingly violating the law. And this is an officer that has not hidden the ball with respect to what transpired between Bowen and Kelly. He submitted it to his superiors to look at; he submitted it to an attorney. And while that's not dispositive, I think those are objective facts that a reasonable officer could say, I've done this, this, and this; there's no reason for me to believe that I'm violating the law in sending it to a magistrate.

Chief Justice Roberts: Thank you, counsel, counsel. The case is submitted. (Whereupon, at 12:09 p.m., the case in the above-entitled matter was submitted.)