concurring:
I concur, but in light of the strong majority opinion and the strong dissent, I should explain further.
Although we need not decide the issue, I am satisfied that the warrant was over-broad and that the search, therefore, violated the constitutional rights of the Mil-lenders. But, of course, the officers did not merely act on their own. They had a warrant. In seeking the warrant, they had asked a superior officer to review the affidavit and the proposed scope of the warrant. It was approved. It was then submitted to a deputy district attorney, who also approved it. Then, of course, it was submitted to a judge for his approval. He signed it with no apparent caveats or misgivings. In other words, in that sense, the officers did precisely what we want them to do. As we said over fifteen years ago in a slightly different context, where a judicially issued warrant was not involved:
The appellants did not simply act rashly and without regard to [a person’s] legal or constitutional rights. Rather, they did just what the courts encourage officials to do. They sought an expert legal opinion before they acted.
We have previously had occasion to comment upon that kind of responsible behavior by police officials.
In fine, when the employees of LAPD were faced with what can only be called a complex and uncertain legal issue, they sought legal advice and then followed that advice. It would be counterproductive and even oppressive were we to find that they can now be held liable in damages for their actions. This is not to say that officials can ignore clear constitutional rules and hide behind the advice of an attorney.
Los Angeles Police Protective League v. Gates, 907 F.2d 879, 888 (9th Cir.1990) (citations omitted).
Not surprisingly, that approach has been applied when a warrant has been obtained. KRL v. Estate of Moore, 512 F.3d 1184, 1189-90 (9th Cir.2008) (citations omitted). In other words, we are much inclined to protect officers when they seek the aid of the court before they act; that alone advances the purposes of the Fourth Amendment. See Ortiz v. Van Auken, 887 F.2d 1366, 1368-71 (9th Cir.1989). In sum “[o]ur cases repeatedly emphasize [the] distinction between warrants with disputable probable cause and warrants so lacking in probable cause that no reasonable officer would view them as valid.” KRL, 512 F.3d at 1190; see also United States v. Stubbs, 873 F.2d 210, 212 (9th Cir.1989).
Here, as I see it, we are at the outer limits of our tolerance in that respect. When I read and reread the warrant and the affidavit that supports it, I come away with the feeling that there is extremely little support for the search of a third person’s home for all firearms and ammunition. The weapon involved in the offense in question was identified with precision *1152and the officers even had photographs of it. Similarly, although Bowen was, indeed, a bad man and a gang member, it is a little difficult to justify the search of a third person’s home for gang membership information: gangs had nothing whatsoever to do with the domestic assault that is in question here. Of course, I recognize, that the officers did not know that they were searching a third person’s home; they thought they were searching Bowen’s home also.
In short, courts are concerned about the burdens imposed upon police officers in this kind of situation and are constrained to feel empathy for their plight. On the other hand, courts are concerned about the plight of decent citizens like the Millenders when governmental authorities smash their way into a home on a quest for information regarding a person who, as it turns out, does not even reside in the home. Thus, in order to reify our concern for the officers we must embrace the protections thrown up around them in the warrant area with enthusiasm rather than with velleity. However, we must also protect the sanctity of the home1 and assure that no representative of state power simply hides behind the misdeeds or misdirections of other representatives, lest we become a kakistocracy.2 On this record, the former concerns prevail.
I, thus, concur in the majority opinion. I do so with deep regret that with respect to the warrant the legal system failed the Millenders, but we cannot visit the cost of that failure upon the heads of the officers.
. See Los Angeles Police Protective League, 907 F.2d at 884.
. See Grossman v. City of Portland, 33 F.3d 1200, 1209-10 (9th Cir.1994).