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Probable cause of what? A comment on Messerschmidt v. Millender

On Wednesday, the Supreme Court overturned a Ninth Circuit qualified immunity decision in Messerschmidt v. Millender, a case I blogged about here. Millender is a relatively narrow case, but it has a few morsels for Fourth Amendment nerds. One particularly interesting morsel is the suggestion that the government may be able to obtain a warrant to search for possible impeachment evidence and evidence to counter possible defenses, rather than just evidence for the government’s case in chief.

First, a little background. In Illinois v. Gates, the Supreme Court said the government can obtain a search warrant to conduct a search when the government shows a “fair probability that contraband or evidence of a crime will be found in a particular place.” The definition of “contraband” is well-established. It means property that is illegal to possess, such as narcotics. But exactly what counts as “evidence” under the probable cause test has long been a bit murky. How direct a connection to the elements of the crime does the item need to be to constitute “evidence”?

In Messerschmidt v. Millender, the police were investigating a domestic assault by a known gang member. They obtained a warrant to search the suspect’s home for evidence, and the list of property to be seized included anything relating to membership in gangs. The question in the case is whether a reasonable officer could have believed that the warrant was properly drafted because gang evidence might be relevant to the criminal case under investigation. Yes, the majority concludes: Gang evidence could help connect the gang member to the other evidence found at the house. In other words, the gang evidence would help to show that the stuff belonged to the gang member. But then the majority also adds this possible reason to get a warrant for the gang evidence:

In addition, a reasonable officer could believe that evidence demonstrating Bowen’s membership in a gang might prove helpful in impeaching Bowen or rebutting various defenses he could raise at trial. For example, evidence that Bowen had ties to a gang that uses guns such as the one he used to assault Kelly would certainly be relevant to establish that he had familiarity with or access to this type of weapon.

This is an intriguing suggestion. As best I understand this passage, “evidence” for probable cause purposes can include not only evidence for the government’s case in chief, but also evidence useful to impeach witnesses and respond to potential defenses.

If I’m reading the opinion correctly, that strikes me as a potentially significant expansion of the probable cause standard. In criminal trials, the government starts off by making its case in chief. If the defendant offers a defense, such as duress or the insanity defense, the government can respond to it. And if the defendant testifies, the government can impeach his credibility. The question is, can the government get warrants to search for that kind of information?

Off the top of my head, I can’t think of a case in which the government obtained a warrant seeking evidence that was not actually to be used in its case in chief, assuming the case goes to trial. Indeed, in Warden v. Hayden, the Court had said that the “[t]here must, of course, be a nexus . . . between the item to be seized and criminal behavior.” An approach to probable cause that includes impeachment evidence and evidence relating to possible defenses strikes me as rather different: The probable cause is as to what might end up being useful to the government in a trial, not what is evidence of the elements that make up the criminal behavior.

This is particularly interesting because very few defendants testify, and at the time of a search the government can’t predict with any confidence what defenses might be raised if the search proves successful and the case goes to trial. As a result, what kind of impeachment evidence and evidence to counter defenses requires lots of conjecture. I wonder, are judges just supposed to assume at the time they review the warrant application that the defendant will certainly testify, and all defenses will be raised? Or does probable cause inquiry discount the chances this would happen? If the former, then Millender now allows warrants to be obtained for all sorts of evidence that might be impeachment evidence or respond to any number of defenses, but that has nothing to do with the elements of the crime or the case in chief. But if the latter, how do judges estimate the chances that these pieces of evidence might be relevant at the time of the search?

I don’t mean to make too much out of this one passage. Millender is just a qualified immunity decision, not a case on the Fourth Amendment merits, so it’s possible to read that passage as just suggesting that a reasonable officer could think it permissible — not that it necessarily is. Still, it’s an intriguing suggestion.

Recommended Citation: Orin Kerr, Probable cause of what? A comment on Messerschmidt v. Millender, SCOTUSblog (Feb. 23, 2012, 9:45 AM),