See this review of the 4 Fourth Amendment cases from the U.S. Supreme Court's latest term. I agree with Jones and strongly disagree with Florence and Messerschmidt. This writer and the cited author have some problems with Messerschmidt. The author is, IMHO, being "generous" in his critical evaluation of Messerschmidt (emphasis supplied):
"Messerschmidt is the more interesting remedies case, in part
because it involved the all-too-common practice among investigators of
being sloppy with the particularity of warrants. The Fourth Amendment
requires warrants to particularly describe the property to be seized,
and the warrants must develop probable cause for each of those items to
be seized. In the suppression context, which is by far the more common
context in which warrant particularity is litigated, courts tend to be
quite generous with defects in particularity. If the police add in a
“catch all” clause in the warrant that is obviously overly broad, courts
usually just sever the obviously unconstitutional part of the warrant
and allow the evidence if it was obtained by reliance on other parts of
the warrant. (See, for example, the Sixth Circuit’s 2001 decision in United States v. Greene.) As a result, officers often aren’t as careful with particularity as they should be. By arising in a civil setting, Messerschmidt didn’t allow the easy path of severability often seen in criminal cases.
A divided Court in Messerschmidt ruled that qualified
immunity applied by taking a rather generous view of what kind of
evidence might be present and relevant to a domestic dispute involving a
gun fired by a gang member. As a practical matter, the most important
aspect of the majority opinion is its conclusion that seeking and
obtaining the approval of higher-ups bolstered the case of qualified
immunity by indicating that the officer was not at personal fault. This
ruling is in in significant tension with United States v. Leon, (a criminal prosecution, exclusionary rule case)
which generally requires only a facial review of the warrant to see if a
defect is so significant that suppression is warranted. (The Court has
generally equated the good-faith exception in the criminal setting and
qualified immunity standard in the civil setting, so precedents from one
context should be applicable to the other.) At the same time, the
ruling is consistent with the recent trend of Roberts Court cases on
Fourth Amendment remedies in emphasizing the personal culpability of
individual officers as a prerequisite to liability. In my view, focusing
on personal culpability is problematic: Bad faith is hard for
defendants to uncover and the appearance of good faith is relatively
easy for the police to game. Under Messerschmidt, even if the
warrant has a serious defect, review by higher-ups may provide an extra
defense against not only personal liability but suppression of evidence.
It’s too early to tell whether lower courts will connect those dots and
use Messerschmidt in this way, but it seems quite plausible that they will."
If too many lower courts connect the dots, it could result in a serious weakening of 4th Amendment protections.
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