Ramirez v. Butte-Silver Bow County

Decision Date25 July 2002
Docket NumberNo. 99-36138.,No. 00-35955.,99-36138.,00-35955.
Citation298 F.3d 1022
PartiesJoseph R. RAMIREZ; Julia L. Ramirez; Joshua Ramirez; Regina Ramirez, Plaintiffs-Appellants, v. BUTTE-SILVER BOW COUNTY; John McPherson, Sheriff of Butte-Silver Bow County; Joe Lee, Undersheriff of Butte-Silver Bow County; John Does 1-50, in their individual and/or official capacities, Defendants, and Jeff Groh, Special Agent with The Bureau of Alcohol, Tobacco, and Firearms, Defendant-Appellee. Joseph R. Ramirez; Julia L. Ramirez; Joshua Ramirez; Regina Ramirez, Plaintiffs-Appellants, v. Butte-Silver Bow County; John McPherson, Sheriff of Butte-Silver Bow County; Joe Lee, Undersheriff of Butte-Silver Bow County; Jeff Groh, Special Agent with The Bureau of Alcohol, Tobacco, and Firearms; John Does 1-50, in their individual and/or official capacities, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Vincent J. Kozakiewicz, Boise, ID, and W.G. Gilbert III, Dillon, MT, argued the cause for the appellants.

William W. Mercer, Assistant United States Attorney, Billings, MT, and Brendon J. Rohan, of Poore, Roth & Robinson, P.C., Butte, MT, argued the cause for the appellees. Deanne L. Sandholm, Assistant U.S. Attorney, Helena, MT, assisted on the brief.

Appeals from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CV-99-00017-DWM.

Before: KOZINSKI and GOULD, Circuit Judges, and SCHWARZER, District Judge.*

ORDER

The Opinion filed March 13, 2002, is amended as follows:

1. At page 4170, line 9 of the slip opinion, replace "Id." with "Id. (quoting United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir.1982) (internal quotation marks omitted)).".

2. At page 4171, [283 F.3d at 989] footnote 1, line 8 of the slip opinion, replace "quoting" with "citing".

3. At page 4174, lines 11-12 of the slip opinion, replace "qualified immunity because, according" with "qualified immunity. According".

With these amendments, the petition for rehearing is denied and the petition for rehearing en banc is rejected. Fed. R.App. P. 35, 40.

OPINION

KOZINSKI, Circuit Judge.

We consider whether and under what circumstances law enforcement officers who execute a search pursuant to a defective warrant enjoy qualified immunity.

I

Agent Jeff Groh of the Bureau of Alcohol, Tobacco and Firearms ("BATF") received two reports that the Ramirezes kept an automatic rifle, a rocket launcher, a grenade launcher and grenades on their ranch in western Montana. Groh prepared an application for a search warrant and supporting affidavit, and presented them to a magistrate judge who issued the warrant. The application properly described both the place to be searched and the objects sought. However, the warrant itself omitted the latter information entirely: In the space provided to list the items to be seized, Groh mistakenly typed a description of the Ramirez home.

Groh led BATF agents and members of the county sheriff's department, including Sheriff John McPherson and Undersheriff Joe Lee, in the execution of the warrant. When the officers entered the Ramirez home, only Mrs. Ramirez was present. Groh told her they had a search warrant and were there "because somebody called and said you have an explosive device in a box." The officers found no illegal weapons or explosives, but photographed the home's interior and recorded the serial numbers of the Ramirezes' legal firearms. Mrs. Ramirez tried to call her attorney during the search but could not reach him. As Groh left, he gave Mrs. Ramirez a copy of the defective search warrant; neither the application nor the affidavit were attached. Nothing was seized, and no charges were subsequently filed against the Ramirezes.

The next day, Mrs. Ramirez reached her attorney and faxed him the warrant. The attorney then called Groh and questioned the warrant's validity because of the omitted information. He also demanded a copy of the warrant application and supporting affidavit. Groh replied that the documents were under court seal, but faxed him the page of the application that contained the list of items to be seized.

The Ramirezes sued the officers under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and 42 U.S.C. § 1983, for violation of their Fourth Amendment rights. The district court granted summary judgment to defendants, holding that there was no constitutional violation and defendants enjoyed qualified immunity in any case. The Ramirezes also brought two other Bivens and section 1983 claims, see Parts III & IV infra, but the district court ruled against them on those as well. The Ramirezes appeal.

II
A. Was there a Fourth Amendment violation?

To satisfy the Fourth Amendment, a search warrant must describe with particularity the place to be searched and the items to be seized. U.S. Const. amend. IV; United States v. Sayakhom, 186 F.3d 928, 934 (9th Cir.1999). The particularity requirement protects the individual from a "general, exploratory rummaging in [his] belongings." United States v. Lacy, 119 F.3d 742, 746 n. 7 (9th Cir.1997) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). It does so both by "limit[ing] the officer's discretion" and by "inform[ing] the person subject to the search what items the officers executing the warrant can seize." United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997) (emphasis removed).

We addressed the particularity requirement in McGrew, where federal agents searched the home of a suspected drug trafficker. The warrant itself did not specify the evidence sought. Rather, in the space provided for that information, it referred to the "attached affidavit which is incorporated herein." Id. at 848. However, agents never served McGrew with a copy of the affidavit, either during or after the search. Id. at 849.

According to the "well settled law of this circuit," a warrant "may be construed with reference to the affidavit ... if (1) the affidavit accompanies the warrant, and (2) the warrant uses suitable words of reference which incorporate the affidavit." Id. (quoting United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir.1982) (internal quotation marks omitted)). When officers fail to attach the affidavit to a general warrant, the search is rendered illegal because the warrant neither limits their discretion nor gives the homeowner the required information. Id. at 850.

Appellees concede that the warrant here was facially defective because it provided no description of the evidence sought. It also didn't refer to or incorporate the application or affidavit. Groh attached no documents to the warrant when he served it on Mrs. Ramirez. Nonetheless, appellees argue that McGrew does not control and that the search was lawful because Groh's words remedied the defect. According to Groh, he spoke at length with the Ramirezes during the search — Mrs. Ramirez in person, Mr. Ramirez on the telephone — and listed all of the items sought. However, the Ramirezes claim that Groh spoke only to Mrs. Ramirez, and told her simply that the officers sought "an explosive device in a box."

This factual dispute is immaterial: Groh could not have cured the flaw because he lacked the authority to amend the warrant. As a law enforcement officer, Groh was empowered only to execute the warrant. Therefore, he could no more have supplemented it verbally than he could have amended it by crossing out the terms approved by the magistrate and scribbling new ones in the margins. The only way Groh could have remedied the defect in the warrant was to ask a magistrate to issue a corrected version. McGrew therefore controls and the warrant failed to comply with the Fourth Amendment.1

Our holding is consistent with the goals of the particularity requirement, which went unfulfilled here despite Groh's alleged oral statements. First, the absence of a sufficiently particular warrant increased the likelihood and degree of confrontation between the Ramirezes and the police. The presence of a comprehensive and valid warrant "greatly reduces the perception of unlawful or intrusive police conduct, by assuring the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (internal quotation marks omitted).

Second, the invalid warrant deprived the Ramirezes of the means to be on the lookout and to challenge officers who might have exceeded the limits imposed by the magistrate. "Citizens deserve the opportunity to calmly argue that agents are overstepping their authority or even targeting the wrong residence." United States v. Gantt, 194 F.3d 987, 991 (9th Cir.1999). Such a dialogue is impossible if citizens must rely on officers' verbal representations of the scope of their authority. To stand a real chance of policing the officers' conduct, individuals must be able to read and point to the language of a proper warrant.

Third, permitting officers to expand the scope of the warrant by oral statements would broaden the area of dispute between the parties in subsequent litigation. The parties' disagreement over exactly what Groh said during the search, and to whom he said it, is immaterial because the warrant must contain all authorizations and limitations in writing.

B. Are Defendants Protected by Qualified Immunity?

Law enforcement officers are entitled to qualified immunity if they act reasonably under the circumstances, even if the actions result in a constitutional violation.2 Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); Marks v. Clarke, 102 F.3d 1012, 1026 (9th Cir.1996). What's reasonable for a particular officer depends on...

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