Cite as: 540 U. S. 551 (2004)
Kennedy, J., dissenting
The Court reaches a different result by construing the officer's error as a mistake of law rather than a mistake of fact. According to the Court, the officer should not receive qualified immunity because "no reasonable officer could believe that a warrant that plainly did not comply with [the particularity] requirement was valid." Ante, at 563. The majority is surely right that a reasonable officer must know that a defective warrant is invalid. This much is obvious, if not tautological. It is also irrelevant, for the essential question here is whether a reasonable officer in petitioner's position would necessarily know that the warrant had a clerical error in the first place. The issue in this case is whether an officer can reasonably fail to recognize a clerical error, not whether an officer who recognizes a clerical error can reasonably conclude that a defective warrant is legally valid.
The Court gives little attention to this important and difficult question. It receives only two sentences at the very end of the Court's opinion. In the first sentence, the Court quotes dictum from United States v. Leon, 468 U. S. 897, 923 (1984), to the effect that " 'a warrant may be so facially deficient—i. e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.' " Ante, at 565. In the second sentence, the Court informs us without explanation that "[t]his is such a case." Ibid. This reasoning is not convincing.
To understand the passage from Leon that the Court relies upon, it helps to recognize that most challenges to defective search warrants arise when officers rely on the defect and conduct a search that should not have occurred. The target of the improper search then brings a civil action challenging the improper search, or, if charges have been filed, moves to suppress the fruits of the search. The inquiry in both instances is whether the officers' reliance on the defect was reasonable. See, e. g., Garrison, supra (apartment wrongly searched because the searching officers did not realize that
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