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No Qualified Immunity for Intentional Omission in Search Warrant Application

By Robyn Hagan Cain on December 12, 2011 | Last updated on March 21, 2019

Courts will let reasonable mistakes in search warrant applications slide. Egregious errors or intentional omissions, on the other hand, will not be condoned.

Last week, the Ninth Circuit Court of Appeals reinstated a civil rights lawsuit against Santa Maria Police Department Detective Louis Tanore, finding that Tanore was not protected by qualified immunity for a reckless or intentional omission in a search warrant application.

Hope and Javier Bravo Sr., along with their minor granddaughter E.B., filed a civil rights lawsuit against Tanore after a SWAT team conducted a nighttime raid of their home. The SWAT team was searching for weapons suspected of being used in a drive-by shooting and stored in the Bravo home by their son, Javier Bravo Jr. (Javier Jr.).

The Bravos allege their Fourth Amendment rights were violated because the search warrant application for the raid failed to disclose that Javier Jr. was not in the home because he had been incarcerated in the California prison system for six months. And, since an imprisoned man can hardly participate in a drive-by shooting, Javier Jr. could not have been involved in the shooting or storing weapons from the shooting.

Tanore's search warrant application indicated that Javier Jr. lived at the Bravo residence, and included a brief summary of Javier Jr.'s rap sheet. The affidavit specifically noted that Javier Jr. had a recent conviction for receiving stolen property, but failed to mention that Javier Jr. was over six months into serving a two-year sentence in state prison for that crime. Tanore admitted that he may have seen the two-year sentence entry on the rap sheet, but even if he did, he wouldn't ordinarily it check into something like that.

The Ninth Circuit Court of Appeals ruled that a corrected affidavit would not have established probable cause for the search, and especially would not have met the heightened standard of justification required for nighttime SWAT service. Because the Bravos met the required substantial showing that Tanore made a reckless or intentional omission on the search warrant application, the court ruled that Tanore was not entitled to qualified immunity.

While it's tough to beat a qualified immunity defense, you have a better shot at surviving summary judgment if you, like the Bravos, can demonstrate that the police should have known the evidence they were seeking could not be found in the location they were searching.

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