dissenting:
Jerry Bowen is not a model citizen. He is allegedly a member of a street gang. He punched, bit, and then shot at his girlfriend when she understandably tried to leave him.
However, on October 10, 2003, Jerry Bowen’s assault on Shelly Kelly was incontrovertibly not related to his gang activity. Moreover, Kelly had identified the weapon used in the crime: a black pump-gauge sawed-off shotgun with a pistol grip. Indeed, Kelly even gave the police a photograph of Bowen holding the shotgun.
Instead of seeking a warrant for the sawed-off shotgun, Officer Messerschmidt sought a warrant for:
All handguns, rifles or shotguns of any caliber, or any firearms capable of firing ammunition or firearms or devices modified or designed to allow it to fire ammunition. All caliber of ammunition, miscellaneous gun parts, gun cleaning kits, holsters which could hold or have held any caliber handgun being sought. Any receipts or paperwork, showing the purchase, ownership, or possession of the handguns being sought. Any firearm for which there is no proof of ownership. Any firearm capable of firing or chambered to fire any caliber ammunition. Articles of evidence showing street gang membership or affiliation with any Street Gang to include but not limited to any reference to “Mona Park Crips,” including writings or graffiti depicting gang membership, activity or identity. Articles of personal property tending to establish the identity of person in control of the premise or premises. Any photographs or photograph albums depicting persons, vehicles, weapons or locations, which may appear relevant to gang membership, or which may depict the item being sought and or believed to be evidence in the case being investigated on this warrant, or which may depict *1153evidence of criminal activity. Additionally to include any gang indicia that would establish the persons being sought in this warrant, affiliation or membership with the. ■ “Mona Park Crips” street gang.
Two statements in Messerschmidt’s affidavit provided the sole grounds for this extraordinarily broad warrant: (1) Bowen was “a known Mona Park Crip gang member” and (2) Messerschmidt “believe[d] that the items sought will be in the possession of Jerry Ray Bowen and the recovery of the weapon could be invaluable in the successful prosecution of the suspect involved in this case, and the curtailment of further crimes being committed.”
Because neither of these statements provided a “substantial basis” for demonstrating “a fair probability that contraband or evidence of a crime will be found in a particular place,” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), no officer of reasonable competence could have thought this affidavit established probable cause to search for the items listed in the warrant, see Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (in determining whether an officer is eligible for qualified immunity, “[t]he question is whether a reasonably well-trained officer in petitioner’s position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant”). Therefore, I would affirm the district court’s denial of qualified immunity, and I respectfully dissent.
I
Viewing the evidence in the light most favorable to the Millenders (as we must when reviewing this appeal from the denial of the officers’ motion for summary judgment based on qualified immunity), no reasonably well-trained officer in Messerschmidt’s position could have concluded that there was probable cause to search for the wide variety of firearms, firearm accessories, and gang paraphernalia listed in the search warrant.
Probable cause exists when an affidavit demonstrates a fair probability that each of the items sought in the search warrant is contraband or evidence of a crime. See VonderAhe v. Howland, 508 F.2d 364, 369 (9th Cir.1974); In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 857 (9th Cir.1991) (holding that “probable cause must exist to seize all the items, of a particular type described in the warrant”).
The affidavit must set forth specific facts that make the search reasonable. A warrant may not “rest upon mere affirmance of suspicion or belief without disclosure of supporting facts or circumstances.” Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 78 L.Ed. 159 (1933); see also Gates, 462 U.S. at 239, 103 S.Ct. 2317 (citing Nathanson with approval and stating that a “bare-bones”' affidavit comprised of mere conclusory statements is an inadequate basis for a probable cause determination); Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968) (holding that an affidavit that merely stated the officer’s belief that movies and books to be seized were obscene, and therefore illegal, was insufficient to establish probable cause). Moreover, the search warrant must be “carefully tailored to its justifications” in order to ensure that the search “will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987).
II
The affidavit in this case did not allege facts making it reasonable to search for *1154the broad array of firearms and firearm-related equipment listed in the search warrant. The affidavit established probable cause to search for a “black sawed off shotgun with a pistol grip” because it recounted Bowen’s attack on Kelly with' that weapon. But the affidavit did not recite any facts indicating that the broad array of other items sought (including “[a]ll handguns, rifles or shotguns of any caliber, or any firearms capable of firing ammunition or firearms or devices modified or designed . to allow it to fire ammunition”) were used in, or were evidence of, the crime under investigation. See United States v. Rubio, 727 F.2d 786, 793 (9th Cir.1983) (where a warrant seeks evidence relevant to proving a criminal violation, the affidavit must establish probable cause to believe there is a connection between the evidence sought and a violation of the criminal statute at issue).
The affidavit contains the conclusory statement that “the recovery of the weapon could be invaluable in the successful prosecution of the suspect involved in this case, and the curtailment of further crimes being committed.” No reasonable officer could think this statement is enough to support probable cause. . Mere possession of firearms is not, generally speaking, a crime, cf. District of Columbia v. Heller, — U.S. -, 128 S.Ct. 2783, 2799, 171 L.Ed.2d 637 (2008), and a reasonable officer in Messerschmidt’s position would know that the only weapon at issue in the case was the sawed-off shotgun depicted in the photograph and specifically described by Kelly, see VonderAhe, 508 F.2d at 370 (where “the government knew exactly what it needed and wanted” in search for particular type of record, a warrant seeking all types of records is prohibited).
Nor did the affidavit demonstrate a fair probability that the gang paraphernalia sought in the warrant was an instrumentality or evidence of the crime under investigation. The affidavit stated only that Bowen was “a known Mona Park Crip gang member.” Gang paraphernalia may evidence membership in a gang, but such membership is not itself evidence of a crime, absent an allegation that the gang is wholly criminal or that there is some nexus between Bowen’s criminal activity and his membership in the gang. See Rubio, 727 F.2d at 793; see also Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The affidavit does not include such allegations. Rather, the affidavit describes the crime as a “spousal assault,” and states that Kelly had decided to end her dating relationship with Bowen due to his temper, and had called the officers “to watch over her while she gathered some of her property from her residence.” Nothing in these statements demonstrates a fair probability that the gang paraphernalia described in the warrant was evidence of a crime, and no reasonable officer could think otherwise.
Finally, the officers here cannot shield themselves from liability by relying on the deputy district attorney’s review or the magistrate’s approval of the warrant. “Our cases repeatedly emphasize th[e] distinction between warrants with disputable probable cause,” where reliance on magistrate approval is reasonable, “and warrants so lacking in probable cause that no reasonable officer would view them as valid,” where reliance on magistrate approval is unavailing. KRL v. Estate of Moore, 512 F.3d 1184, 1190 (9th Cir.2008). This case falls into the latter category. Messerschmidt’s affidavit provided “a mere affirmation of suspicion and belief without any statement of adequate supporting facts.” Nathanson, 290 U.S. at 46, 54 S.Ct. 11. In short, the affidavit is simply missing the facts and circumstances that would support a search for the array of *1155firearms and gang paraphernalia described in the warrant.
III
The majority reaches the contrary conclusion for several reasons. First, the majority relies on the allegations in the affidavit that Bowen used a deadly weapon and had ties with a gang. Second, the majority states that it is reasonable to infer that Bowen “probably had a criminal record,” although the affidavit does not say so. Maj. Op. at 1150. Third, the majority notes that the warrant was limited to items that “arose out of the officer’s particular concerns with Bowen, if not with the specific crime under investigation.” Maj. Op. at 1150. In essence, the majority holds that the breadth of the warrant is justified because Bowen used a gun, was a member of a gang, and had raised the concerns of the police.
I disagree. Officers do not get a pass from complying with the Fourth Amendment’s warrant requirements because they are investigating an unsavory character. No matter how shady Bowen may be, reasonable officers would know that they cannot undertake “general, exploratory searches and indiscriminate rummaging through a person’s belongings,” United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986), unless there are facts in the affidavit establishing a fair probability that the items sought in the search warrant are contraband or evidence of a crime.
IV
In sum, the affidavit contained only conelusory statements rather than concrete facts and circumstances, and failed to allege a nexus between the items sought and the criminal activity being investigated. Because it did not include facts demonstrating a fair probability that the items listed in the search warrant were evidence of the crime being investigated, “a reasonably well-trained officer in petitioner’s position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.” Malley, 475 U.S. at 345, 106 S.Ct. 1092. The officers “cannot excuse [their] own default by pointing • to the greater incompetence of the magistrate.” Id. at 346 n. 9, 106 S.Ct. 1092. I would affirm the district court’s denial of qualified immunity, and I respectfully dissent.