SCOTUS: Brief Nudity For Officer Safety's Sake Is Permissible During High-Risk Warrant Service

LOS ANGELES COUNTY v. RETTELE, SCOTUS No. 06-605, 127 S.Ct. 1989, 2007 U.S. LEXIS 5900, on writ of certiorari to USCA-9, opinion per curiam, concurrence by Stevens, dissent from grant of certiorari by Souter, filed 21 May 2007.

LONG STORY SHORT: Officers who mistakenly served a search warrant on the wrong house could order a naked couple out of bed and not allow them to dress for two minutes until officers determined that the couple had no weapons within reach. Binding in the United States.

FACTS: Defendant, a deputy of the Los Angeles County Sheriff's Department, investigated a fraud and identity theft ring and developed four African-American suspects, one of whom was the registered owner of a 9mm Glock pistol. Defendant researched many records to find where the suspects lived, and obtained search warrants for two houses and arrest warrants for three suspects. Defendant did not discover that three months before, one of the houses had been sold to Plaintiffs, an unmarried heterosexual couple who lived there with the woman's 17-year-old son. All of them were Caucasian-American.

Defendant and six other deputies knocked and announced at 0715 one morning, and the 17-year-old answered. The deputies ordered him to the floor and entered Plaintiffs' bedroom. Despite Plaintiffs' pleas that they were naked, the deputies ordered them out of bed at gunpoint and did not let them get dressed for one or two minutes while the deputies determined that no immediate threat was present. Then the deputies allowed Plaintiffs to dress, after which they sat down in the living room for about four minutes. By this time, the deputies had determined they had made a mistake, apologized profusely, and departed to search the other house on the warrant, where they found and arrested the three suspects.

PROCEDURE: Plaintiffs, for themselves and as guardian ad litem for the 17-year-old, sued Defendant and others in U.S. District Court for the Central District of California per 42 U.S.C. § 1983 for, among other causes, unreasonable search and detention in violation of the Fourth Amendment. After discovery, Defendant moved for summary judgment, arguing that he was entitled to qualified immunity. The trial court ruled that the search warrant was valid and properly obtained and that the search and detention were not unreasonable, and in the alternative, that it would not have been clear to a reasonable officer in Defendant's position that he was violating the Constitution. QUALIFIED IMMUNITY GRANTED.

Plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit, which noted that even though the warrant was valid, the fact of Plaintiffs being white and the suspects being black was immediate proof of a mistake. A reasonable jury could find that Defendant knowingly violated Plaintiffs' Fourth Amendment rights by holding them at gunpoint naked when they were clearly not the suspects on the warrant. GRANT OF QUALIFIED IMMUNITY REVERSED. Defendant petitioned for and received a writ of certiorari from the Supreme Court of the United States.

DECISION: Probable cause to obtain a warrant is far from absolute certainty, and in an imperfect world, the perfectly innocent will sometimes get searched under a valid warrant. Courts will not punish officers for reasonably executing a mistaken warrant. A reasonable officer in our diverse society, even though searching for African-American subjects, will wisely account for the possibility that Caucasian-Americans may be working with them. Particularly when Defendant and the other deputies knew one of the subjects of the warrant to be armed, they had to assume that anyone in the house might be armed and of a mind to resist.

In executing a search warrant, officers may take objectively reasonable action to secure the premises and to ensure their own safety and the efficacy of the search. To these ends, officers may detain all persons on the premises while conducting a proper search. Objectively unreasonable actions include excessive force or restraints that cause unnecessary pain or last too long. In some circumstances, the Supreme Court has approved of subjects being handcuffed for up to three hours during a search.

Holding naked citizens at gunpoint is not to be done lightly, but here, the Supreme Court ruled that this was reasonable and perhaps necessary. Some criminals keep guns and other weapons under pillows and in bedclothes, meaning that officers need not turn their backs for modesty's sake, but instead should take total control of the situation until a threat-free environment is established. Here, Plaintiffs were in this extremely awkward state for at most two minutes, after which the deputies allowed, indeed urged, them to get dressed. Defendant did not act as an unreasonable officer would have done, did not violate the Fourth Amendment, and was entitled to qualified immunity. REVERSED AND REMANDED for further consistent proceedings.

Justice Souter would have denied certiorari.

Justice Stevens, joined by Justice Ginsburg, concurred in the judgment, but would have reversed the Ninth Circuit on grounds that Plaintiffs' rights were not clearly established, and thereby avoided directly ruling whether Defendant's conduct was constitutional.

EDITORIAL: This would make a perfect Southwest Airlines "Wanna get away?" commercial--on both sides. Not funny at all to the poor undraped bemused couple, though. I'm sure the deputies in question now check very thoroughly as to who owns the house they'd like to search. I agree with the result, and I can only imagine the relief of the deputies as they found out they won the Supreme Lottery by being the less that 1% of cert petitions that get granted.

I don't agree with the concurrence, which is the latest hint of a movement among the Powers that Be to do away with the first half of the qualified immunity test. The traditional Constitutional Two-Step goes: first, did the police violate the Constitution, and second, would reasonable officers in that situation have known they were violating the Constitution? Sounds just peachy to me, but some are saying that if you can get rid of the case by doing the second step first, then don't bother with the first part. I am not alone in saying that you can't clearly establish violations (second step) without some caselaw that decides what is a violation (only comes from doing the first step as often as possible). Would somebody explain why we should now begin to wander around in an ever-deepening constitutional swamp of "not clearly a violation" instead of deciding the law when we need to?