A man brought a lawsuit against police officers alleging violations of his Fourth Amendment rights. The officers conducted searches of his car, home, and workplace in connection with allegations that he disseminated indecent material to minors. The United States Court of Appeals for the Ninth Circuit held the police officers were protected by qualified immunity because they “were not ‘plainly incompetent’ in concluding that there was a fair probability that the searches would turn up evidence of stalking and dissemination of indecent material to minors.” (Armstrong v. Asselin) --- F.3d ----, C.A.9 (Alaska), November 1, 2013).
Parents of two minor males went to the police because they were concerned about contact that Jared Armstrong (“Armstrong”) had with their sons. They alleged that Armstrong provided pornography to the one of the boys. Police officers obtained search and arrest warrants for Armstrong. The warrant applications contained photocopies of the pornography and online communications between Armstrong and the two boys. Armstrong was initially charged with disseminating indecent material to minors, but that charge was later dismissed.
Before returning Armstrong’s computer, Officer Asselin found what appeared to be a pornographic photograph on the computer. The police obtained a search warrant to further examine the computer and found at least 274 photographs of minors, and another warrant to record telephone calls from Armstrong to various victims’ parents. Armstrong was arrested for possession of child pornography but the criminal case against him ended after the Alaska Superior Court granted a motion to suppress all of the evidence. The court determined that the warrant to record telephone calls between Armstrong and the father of the boy who received the pornographic material was not supported by probable cause because there was no probable cause to believe that the material was indecent under Anchorage’s ordinance.
Armstrong brought a lawsuit against Officer Asselin and several other police officers for violations of his Fourth Amendment rights. The federal district court rejected the officers’ motion for qualified immunity.
Armstrong alleged any reasonable officer would have known that the search and arrest warrants violated the Fourth Amendment because the short excerpt of the alleged pornographic material could not establish probable cause. The applicable Anchorage ordinance “requires that the work, ‘taken as a whole,’ must be indecent.’” Here, the work as a whole was not considered before issuing the warrants. The court of appeals agreed that the excerpt of the material presented with the warrant applications could not by itself establish that it was indecent or obscene. However, the court concluded that officers were entitled to qualified immunity and reversed the decision of the district court.
All that is needed to support an arrest or search warrant is probable cause that Armstrong’s act of giving the material to a minor would violate the ordinance. The cover of the material depicted nudity. Even if the full book is not indecent, “it would be too much to say that no reasonable police officer could seek a search warrant directed at the premises of the person who gave it to a minor until the police officer had read every word of the book and evaluated its literary value as a whole.” Furthermore, qualified immunity may attach even when a warrant is invalid as long as the officer reasonably believed there was probable cause for the warrant. This standard can be satisfied without reading the entire material.
More importantly, the police officers in this case “subjected every step of their invasions of Armstrong’s privacy to evaluation both by prosecutors and by neutral judicial officials before they acted.” Police officers who are involved in the execution of a defective warrant are immune from suit except in rare circumstances. If before a warrant is issued, it is presented to superior officers and prosecutors and approved by a judicial officer, such actions show that any error in the warrant was not obvious and that the officer “acted in an objectively reasonable manner.”
If an officer lies to the magistrate issuing the warrant or the magistrate acts as a rubber stamp when police request a warrant, then the officer may not be entitled to qualified immunity. Under normal circumstances, however, “the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner.” Pursuant to Supreme Court precedent, approval of a warrant application and warrant by the officer’s superiors, prosecutors, and a judge is almost a guarantee that an honest police officer will be able to claim qualified immunity.