Appeal from the United States District Court for the District of Colorado (D.C. No. 1:03-CV-1008-WDM-PAC).
The opinion of the court was delivered by: Seymour, Circuit Judge.
Before MURPHY, SEYMOUR and MCCONNELL, Circuit Judges.
Thomas J. Cassady brought this § 1983 action against Steven E. Goering. Mr. Cassady alleged Sheriff Goering violated his Fourth Amendment right to be free from unreasonable searches and seizures. A jury found for Mr. Cassady at the first trial, but he was awarded a new trial due to a prejudicially low damages award. Sheriff Goering filed a Rule 50(b) Motion for Judgment as a Matter of Law and Renewed Motion Based on Qualified Immunity. He appeals the district court's amended order rejecting his qualified immunity claim. Because the warrant permits a general search and seizure of "all other evidence of criminal activity," we hold it was a general warrant prohibited by the Fourth Amendment. Accordingly, we affirm the denial of qualified immunity.
The incident that gave rise to the search and seizure at issue involved a dispute between Mr. Cassady and Gary Queen over grain owned by Mr. Queen and stored on Mr. Cassady's farm in Kit Carson County, Colorado.*fn1 Mr. Cassady attempted to cut off Mr. Queen's access to the grain, claiming that Mr. Queen had not paid for the storage, which led to a physical altercation between Mr. Cassady and Mr. Queen. Both parties called the police -- Mr. Cassady requesting help to remove Mr. Queen from his farm, and Mr. Queen reporting that Mr. Cassady had assaulted him after he saw marijuana plants on the property.
Sheriff Goering responded to the call, with Deputy Sheriff Willis Boden joining him. Mr. Queen told Sheriff Goering that he had seen marijuana plants inside a quonset hut on Mr. Cassady's farm, that Mr. Cassady had attacked him, and that he had seen a handgun in Mr. Cassady's truck. Mr. Queen did not have any visible injuries.
Although Mr. Cassady, unlike Mr. Queen, was suffering from visible injuries, Sheriff Goering determined there was probable cause to arrest Mr. Cassady. After placing him under arrest, the officers conducted a "security sweep" of the open areas and buildings on the farm, but did not search the locked quonset hut.
Sheriff Goering directed Deputy Boden to obtain a search warrant while he remained behind at the farm. Boden had never before sought a drug-related search warrant. He admitted to not knowing what he was doing, so he requested help from an officer in another police department who had experience with drug-related investigations. After obtaining the warrant, the officers searched the farm and found a large marijuana operation. Sheriff Goering contacted the Drug Enforcement Administration ("DEA"), and he arranged for his own officers to watch the farm overnight. He allowed Mr. Queen to come onto the farm and take his grain, despite his knowledge that Mr. Cassady and Mr. Queen were in a dispute over its ownership. The DEA agents arrived the following morning and Sheriff Goering remained on the farm while the DEA agents conducted the search.
The district court described the state of the farm upon Mr. Cassady's return:
When Cassady returned home, the farm was a mess. His house had been ransacked, there was trash and his personal property on the floor, newly hatched chicks had been killed by being removed from their incubators, and most of his poultry was missing. Additionally, coolers in the Quonset hut were destroyed, food in its freezers had rotted, and insulation had been torn out of its wall.
Summary Judgment Order, July 21, 2008, Aplt. App. at 11-12. Sheriff Goering and his team appear to be primarily responsible for the damage to Mr. Cassady's property, as the jury apparently found. DEA Agent Martenson testified at trial, "I didn't actually search the residence. It had already been searched." Aplt. App. at 78. The "local officers" were the ones who searched the house, although "the DEA m[ight] have helped a little bit, as well." Id. We do not have the testimony of other law enforcement officers on this issue due to Mr. Goering's failure to provide the full transcript of the trial.
In the related criminal proceeding against Mr. Cassady, the district court -- with a different judge presiding -- found the search unlawful and ordered all evidence obtained from it suppressed. Amended Order Granting Defendant's Motion to Suppress, October 23, 2002, Aplt. App. at 6. In that proceeding, the court held (1) there was no probable cause for the search and seizure; (2) the search warrant was overbroad and exceeded the scope of probable cause in the affidavit; and (3) the "good faith" exception did not apply. Id.
In the present civil proceeding from which this appeal was taken, the district court granted Sheriff Goering qualified immunity with regard to Mr. Cassady's arrest, but denied it with regard to the search warrant, holding it overbroad and its execution unlawful. Following a jury verdict for Mr. Cassady, Sheriff Goering filed a Rule 50(b) Motion for Judgment as a Matter of Law and Renewed Motion Based Upon Qualified Immunity. The district court denied the motion, reiterating its reasoning in the summary judgment order and concluding that "the law was clearly established in this circuit that such an overly broad warrant was unconstitutional" and that "there was a legally sufficient evidentiary basis for a reasonable jury to find for the jury [sic] on his civil rights claim against defendant Goering." Amended Order, February 15, 2007, Aplt. App. at 105-106. The district court noted,
The facts presented to the jury included an overly broad search warrant, damage done to plaintiff's property beyond that necessary to take possession of marijuana plants, damage to areas that were not involved in the marijuana grow and a tolerance by defendant Goering of individuals' access to plaintiff's property while defendant Goering was the supervising law enforcement officer on the premises.
Id. at 106. The district court also determined the jury had arrived at a compromise verdict and accordingly granted Mr. Cassady's motion for a new trial on the § 1983 and trespass claims, a determination not before us.
At issue in this case is Sheriff Goering's entitlement to qualified immunity prior to a retrial. Mr. Cassady asserts that Mr. Goering lost or waived his right to an interlocutory appeal of the denial of qualified immunity. He does not provide us with authority for this proposition, however. While Mr. Cassady is correct that "[t]he Supreme Court has repeatedly stressed the importance of resolving the qualified immunity question at the earliest possible stage in the litigation[,]" Aple. Br. at 1, this rule is for the benefit of the party asserting a qualified immunity defense. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (noting that one purpose of resolving qualified immunity early in the litigation is "to avoid subjecting government officials either to the costs of trial or to the burdens of broad-reaching discovery" (internal quotation marks and alteration omitted)); Saucier v. Katz, 533 U.S. 194, 200 (2001) ("Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive."). We have never held that a qualified immunity ruling is unreviewable following a trial, and we have allowed defendants to reassert qualified immunity claims post-trial where there were factual disputes requiring a jury determination. See Maesta v. Lujan, 351 F.3d 1001, 1008-10 (10th Cir. 2003). Here, Mr. Goering is facing a retrial and we see no reason why he should be prohibited from appealing the post-trial order rejecting his qualified immunity claim.
We apply a de novo standard of review to the denial of a summary judgment motion raising a question of qualified immunity. Gross v. Pirtle, 245 F.3d 1151, 1155 (10th Cir. 2001). "When a defendant raises the qualified immunity defense on summary judgment, the burden shifts to the plaintiff to meet a strict two-part test." Nelson v. McMullen, 207 F.3d 1202, 1206 (10th Cir. 2000). The plaintiff must show (1) that the defendant violated a constitutional or statutory right, and (2) that this right was clearly established at the time of the defendant's conduct. Gross, 245 F.3d at 1155-156. We review the evidence in the light most favorable to the nonmoving party. Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (en banc). These standards are equally applicable here, where the district court denied Mr. Goering's renewed motion as a matter of law.
The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. CONST. amend. IV. The warrant requirement has at least two distinct purposes:
First, the magistrate's scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity. The second, distinct objective is that those searches deemed necessary should be as limited as possible. Here, the specific evil is the 'general warrant' abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings. The warrant accomplishes this second objective by requiring a 'particular description' of the things to be seized.
Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (citations omitted). As we have previously explained, "the fourth amendment requires that the government describe the items to be seized with as much specificity as the government's knowledge and circumstances allow, and warrants are conclusively invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized." United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988) (internal quotation marks omitted).*fn2 Thus, the "particularity requirement" prevents general searches and strictly limits the discretion of the officer executing the warrant. See Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985) ("The particularity requirement ensures that a search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause."); see also United States v. Janis Indus., 48 F.3d 1548, 1553 (10th Cir. 1995) ("As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965))).
The warrant here is ungrammatical and difficult to read in many respects. It authorized the search of the entire farm, including Mr. Cassady's house, and the seizure of "[a]ny & all narcotics," "[a]ny and all illegal contraband" and various specific items mostly related to a narcotics operation. See attached Ex. A. In addition, however, and most damaging to Mr. Goering's argument, the warrant expressly permitted the search and seizure of "all other evidence of criminal activity" as well as personal property that was stolen, embezzled, or otherwise illegal; or was designed, intended, or had been used to commit a criminal offense; or would be material evidence in a criminal prosecution in Colorado or any other state; or the seizure of which was expressly required, authorized, or permitted by any Colorado statute. Id. Hence, the warrant did not confine the scope of the search to any particular crime. The officers only had probable cause to search for evidence related to marijuana cultivation, yet the warrant authorized the seizure of all possible evidence of any crime in any jurisdiction. Consequently, "[t]he warrant allowed precisely the kind of rummaging through a person's belongings, in search of evidence of even previously unsuspected crimes or of no crime at all, that the fourth amendment proscribes." Voss, 774 F.2d at 405.
The affidavit, which was incorporated by reference, does not save the warrant. See attached Ex. B. The only grounds it provides are Queen's statement that he saw marijuana plants on the farm, and Mr. Cassady's 1992 arrest for a marijuana-related offense. It makes no mention of the affiant's training or expertise in narcotics investigations,*fn3 and it is no more particular than the warrant, containing virtually identical language describing the items to be seized.
We cannot accept Mr. Goering's argument that the officers understood the language permitting seizure as limited to evidence of marijuana-related activities only.*fn4 We have previously invalidated warrants substantially more particularized than the one at issue here. See Leary, 846 F.2d at 594, 601 (holding impermissibly overbroad a warrant authorizing search of company offices and seizure of all records and communications "relating to the purchase, sale and illegal exportation of materials" in violation of federal export laws); Voss, 774 F.2d at 405 (holding impermissibly overbroad a warrant in tax fraud investigation authorizing the seizure of all business records). It is not enough that the warrant makes reference to a particular offense; the warrant must "ensure that [the] search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause." Voss, 774 F.2d at 404. As we explained in United States v. Le, 173 F.3d 1258, 1275 (10th Cir. 1999), "[t]he difference between a valid warrant and an overbroad warrant lies in whether the government could have phrased the warrant more specifically." This is simply not a case where "[i]t is difficult to imagine how the . . . warrant could have been phrasedmore specifically." Id. We conclude that the warrant here -- just as in Leary -- is "overbroad in every respect," as it "contains no limitation on the scope of the search, [and] it is not as particular as the circumstances would allow or require. . . ."*fn5 846 F.2d at 605-06; see also Voss, 774 F.2d at 405 (concluding warrant did not satisfy particularity requirement because "[i]t authorized government agents to rummage through all of [defendant's records] seeking any information pertaining to any federal crime"). Thus, because the warrant authorizes a general search, it is overbroad and invalid.
Mr. Goering contends "[t]here is no constitutional violation merely because of words in a warrant where there is no resulting unconstitutional search." Aplt. Br. at 21. Even assuming the general rummaging that apparently occurred here could conceivably be characterized as a "constitutional" search, it is well-settled that "mere words" in a warrant in and of themselves can violate the Fourth Amendment. In Groh v. Ramirez, 540 U.S. 551 (2004), the Supreme Court rejected the argument that a lawfully conducted search could be reasonable under the Fourth Amendment despite an invalid warrant:
We have clearly stated that the presumptive rule against warrantless searches applies with equal force to searches whose only defect is a lack of particularity in the warrant. . . . The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.
Id. at 559-60 (internal quotation marks and citations omitted). Thus, Mr. Goering's attempt to separate the authorization of the search from the execution of the search is a red herring -- a violation of the warrant requirement is itself a violation of the Fourth Amendment.
The Supreme Court in Groh explained why an unconstitutional warrant cannot be saved by a reasonable search: "Even though petitioner acted with restraint in conducting the search, 'the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer.'" Id. at 561 (quoting Katz v. United States, 389 U.S. 347, 356 (1967)). The Court continued, "We have long held . . . that the purpose of the particularity requirement is not limited to the prevention of general searches. A particular warrant also assures 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." Id. (internal citation and quotation marks omitted); see also McDonald v. United States, 335 U.S. 451, 455 (1948) ...