Detroy

MEMORANDUM *

The district court properly granted Wong qualified immunity on Detroy’s *555 claim that Wong’s search warrant application caused an unconstitutional search of his apartment. Detroy failed to show that a reasonable officer in Wong’s position would have known the warrant application was so obviously devoid of probable cause that he never should have applied for the warrant. See Malley v. Briggs, 475 U.S. 335, 345 , 106 S.Ct. 1092 , 89 L.Ed.2d 271 (1986). Although the Supreme Court ultimately held that thermal imaging constitutes a search that requires a warrant, see Kyllo v. United States, 533 U.S. 27, 40 , 121 S.Ct. 2038 , 150 L.Ed.2d 94 (2001), the question had certainly not been clearly decided at the time of the search in this case; indeed, this court held soon after the warrantless thermal imaging of Detroy’s home that such activity did not constitute a search, see United States v. Kyllo, 190 F.3d 1041, 1043 (9th Cir.1999), rev'd, 533 U.S. 27 , 121 S.Ct. 2038 , 150 L.Ed.2d 94 (2001). Therefore, an officer in Wong’s position in 1997 would have reasonably believed that thermal imaging results could be considered by a judge in evaluating the totality of the…

dissenting in part:

I dissent. I would reverse the district court with respect to the media presence claim.

I.

Pursuant to Federal Rule of Civil Procedure 15(b), we treat issues actually litigated in the district court with the consent of the parties “in all respects as if they had been raised in the pleadings, even if the parties have failed formally to amend the pleadings. If an amendment should have been made, we will presume [on appeal] that it has been made.” Davis & Cox v. Summa Corp., 751 F.2d 1507, 1522 (9th Cir.1985) (citations omitted), superseded by statute on other grounds, 28 U.S.C. § 1961 , as recognized in Northrop Corp. v. Triad Int’l Mktg., S.A., 842 F.2d 1154 , 1156 (9th Cir.1988); see also 6A Charles Alan Wright, Arthur A. Miller & Mary *556 Kay Kane, Federal Practice and Procedure § 1493 (2d. ed. 1990) (“Rule 15(b) does not require that a conforming amendment be made and there is no penalty for failing to do so.”). Defendants have never maintained that the media presence claim should be dismissed because it is not in the complaint, choosing instead to address the claim on the merits in both the district court and before this court. This course of action…