Police, The Fourth Amendment, Qualified Immunity

My comments on the Millender decision

leave a comment »

Assuming the recited facts of the court opinions to be true, what the police (that is, the unnamed deputies of the SCOTUS opinion) did to Ms. Kelly in this case was awful, just awful. Hopefully she was well compensated by the police for her ordeal. We have no real way of knowing.

But, imagine for a second that the police did quietly pay off Shelly Kelly for a covenant not to sue. If I imagine these circumstances, I imagine that they would have to pay Ms. Kelly less if they went and shook up Bowen’s long-ago former foster mother.  But, even if plaintiff could somehow magically produce a convenient police memo saying that the Millender search was going to be performed to help soothe Shelly Kelly’s understandably frayed nerves rather than because of any belief that he and/or his gun were going to be there, I am not sure that this would even be relevant to the determination on qi.

On a different aspect:

I was disappointed that the dissents did not go into the issue of whether there was a “fair probability” that Bowen had moved back in with his former foster mother.  IIRC,* the evidence that he had gone to live with his mother was that Bowen supposedly told Kelly that if they ever broke up then he would go live with his former foster mother. How is that enough to get into someone’s house? Not only is it implausible on its face, it is testimony of an interested witness, and would almost certainly have been lost any relevance** by the time of Augusta Millender’s search warrant application because of the intervening circumstances of the attempted murder of Shelly Kelly and Bowen fleeing the scene and failing to turn himself in and so on*** . . .

I was a lot more disappointed that the police were granted a search warrant at all than by the fact that they seized plaintiff’s gun.


*  The SCOTUS opinion merely reports that Kelly thought Bowen would go to the former foster mother’s and that his “ties” to the address were confirmed by checking the motor vehicles database.  But, of course, the motor vehicle database is not a license to raid all of a suspect’s former residence addresses (or is it?).  It is difficult to see how Kelly’s speculations on Bowen’s whereabouts would add much to the magistrate’s probable cause calculus here.

**  Of course, if the police really thought that he might have been living at Millender’s house, notwithstanding the silliness and falsity of that theory, then they could have staked out the location to confirm he was not living there.  Maybe they did!

***  What do I mean by “and so on”?  Glad you asked.  On Planet Earth and in Common Sense Land, Millender’s house would be one of the least likely places for Bowen to have gone to live, or to have stowed the weapon used in the shooting.  This is because he would have realized that the police would be looking there.  Criminals understand the concepts of the heat being on and of lying low.  Jesse James used to hide out at his mother’s farm, but that was a long, long time ago.

Written by Burgers Allday

February 23, 2012 at 5:21 am

Posted in Uncategorized

Tagged with

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: