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Officer has Qualified Immunity from Search Warrant Suit

By Robyn Hagan Cain | Last updated on

The Ninth Circuit, for all of its progressive leanings, remains a nostalgic lot. Circuit judges have yet to exchange their traditional robes for more slimming looks, and, notably, still subscribe to the quaint notion that police officers must support their affidavits for search warrants with probable cause.

This week, the Ninth Circuit considered the issue of police officers' qualified immunity in seizing evidence with a lawfully, fully executed (but invalid) search warrant, while reiterating that a police officer's intuition is not probable cause for a search warrant.

In the facts leading up to the case, Officer Robert Bobkiewicz was investigating teacher Bruce Dougherty for inappropriate sexual contact with his students. While looking into a claim that Dougherty had lifted a sixth grade girl in front of a class and touched her breasts, multiple students told Bobkiewicz that Dougherty had looked down girls' shirts, up their skirts, and touched their backs searching for bra straps.

Bobkiewicz requested a search warrant to search for child pornography on Dougherty's computer and electronic media. To obtain the warrant, Bobkiewicz submitted an affidavit detailing the information about Dougherty's inappropriate contact with his students, and added, "based upon my training and experience ... I know subjects involved in this type of criminal behavior have in their possession child pornography."

The problem? Officer intuition is not probable cause for a search warrant.

The Ninth Circuit held in 1990 that a police officer's knowledge of a certain type of person was not probable cause to expect certain items to be in a suspect's house. The same reasoning applied to Bobkiewicz's probable cause affidavit.

Dougherty, slightly miffed after the police woke his son at gunpoint to execute the warrant, brought a Monell claim against the city, Officer Bobkiewicz, and Chief of Police Kim Raney for violating his constitutional rights.

The court found that Bobkiewicz had qualified immunity against the claims because the Ninth Circuit had not clearly established whether allegations of sexual misconduct of molestation at a place of work provided probable cause to search a residence for child pornography at the time the Dougherty warrant was executed.

The Ninth Circuit also denied the supervisory liability claims in the case, finding that, under Bell Atlantic Corp. v. Twombly, the Dougherty's complaint did not state a plausible cause of action for either municipal or supervisory liability.

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