Sherwood v. Mulvihill

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

5-15-1997

Sherwood v. Mulvihill

Precedential or Non-Precedential:

Docket 96-5236

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Filed May 15, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-5236

GEORGE SHERWOOD,

Appellant

v.

JAMES F. MULVIHILL, ASS'T PROSECUTOR; EDWARD

BORDEN, PROSECUTOR; RONALD BAKLEY, DETECTIVE;

JAMES BARNUM, CHIEF; JOHN DOE

JAMES F. MULVIHILL,

Defendant/Third-Party Plaintiff

v.

CAMDEN COUNTY PROSECUTOR,

Third-Party Defendant

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 92-cv-03856)

Submitted Under Third Circuit LAR 34.1(a)

January 15, 1997

Before: SLOVITER, Chief Judge, SCIRICA and SEITZ,

Circuit Judges.

Filed: May 15, 1997

George Sherwood (Pro Se)

#234421

Southern State Correctional Facility

P.O. Box 150

Delmont, New Jersey 08314

Angela J. Washington, Esq.

Office of Camden County Counsel

520 Market Street

14th Floor, Courthouse

Camden, New Jersey 08101

Attorney for Appellee,

Edward Borden

Anthony J. Fusco, Jr., Esq.

150 Passaic Avenue

P.O. Box 838

Passaic, New Jersey 07055

Attorney for Appellee,

Ronald Bakley

Marc I. Bressman, Esq.

Budd, Larner, Gross, Rosenbaum,

Greenberg & Sade

200 Lake Drive East

Woodland Falls Corporate Park

Suite 100

Cherry Hill, New Jersey 08002

Attorney for Appellee,

James Barnum

OPINION OF THE COURT

SEITZ, Circuit Judge.

In this section 1983 action, we confront, once again, the

fallout from the drug scourge afflicting our society.

George Sherwood ("Plaintiff ") appeals from an order of

the district court granting the motions of Defendants,

2

Ronald Bakley and James Barnum ("Defendants"), for

summary judgment. Plaintiff sought relief against

Defendants for allegedly violating his fourth and fourteenth

amendment rights by falsifying an affidavit used to obtain

a warrant to search Plaintiff's residence. The district court

exercised jurisdiction under 28 U.S.C. §§ 1331 and 1343.

We have jurisdiction pursuant to 28 U.S.C. § 1291. Our

standard of review is plenary.

I.

The following facts are undisputed. A confidential

informant ("informant") whose past tips led to several drug-

related arrests, informed Defendant Barnum, chief of police

in Franklin Township, New Jersey, that Plaintiff was selling

methamphetamine from his residence. The informant told

Defendant Barnum that he could arrange a narcotics

purchase from Plaintiff. On April 4, 1990, Defendant

Barnum, acting undercover, supervised a controlled drug

purchase from Sherwood's residence.

Defendant Bakley later drafted, and both Defendants

signed, an affidavit used to seek a warrant to search

Plaintiff's residence. The affidavit chronicled the controlled

transaction by stating:

(g) That after searching said informant, same was

driven to the Sherwood residence by Chief Barnum

who gave this informant a quantity of money and

requested same go to Sherwood and purchase a

quantity of purported methamphetamine.

(h) That while being watched by Chief Barnum, the

individual did go to the rear door of the residence and

after knocking on same, George Sherwood came to the

door and came outside. Then, both individuals went

back into the house.

(i) That a few minutes later, said person exited the

house and returned directly to Chief Barnum's vehicle.

At this time, said informant handed Chief Barnum a

plastic bag containing a chunk of a white substance

which same said was purchased from George

Sherwood.

3

(Appellant's Br. at App. E-1.3.) Defendant Bakley later

identified the substance as methamphetamine.

Plaintiff contends that each of the quoted paragraphs is

false because each omits and/or affirmatively

misrepresents facts surrounding the controlled transaction.

First, paragraph (g) of the affidavit omits that a third

person, Michael Vasgar, who was unaware that Defendant

Barnum was a police officer and that he was aiding in a

controlled narcotics purchase, accompanied Defendant

Barnum and the informant to Plaintiff's residence on April

4, 1990.1 In this same paragraph, the affidavit states that

Defendant Barnum handed money to the informant and

instructed him to purchase methamphetamine from

Plaintiff. The parties do not dispute that Vasgar

accompanied Defendant Barnum and the informant to

Plaintiff's residence and that Defendant Barnum actually

gave Vasgar the money and instructed him to make the

purchase.

Paragraph (h) of the affidavit omits the identity of the

"individual" who approached Plaintiff and disappeared into

the residence with Plaintiff. The parties do not dispute that

it was Vasgar, acting on Defendant Barnum's instruction,

who did so.

Finally, paragraph (i) of the affidavit omits that the

"person" who returned from the residence to Defendant

Barnum's vehicle was Vasgar. This paragraph then states

that the informant handed the methamphetamine packet to

Defendant Barnum and told Barnum that he had

purchased it from Plaintiff. The parties also do not dispute

that it was Vasgar who did so.

On the basis of this affidavit, which Defendants admit

was partially false, a Gloucester Township Municipal Court

judge approved the issuance of a warrant to search

_________________________________________________________________

1. Defendant Barnum never searched Vasgar prior to the controlled

purchase. Because Defendant Barnum was undercover, any attempt to

search Vasgar would have disclosed the controlled nature of the

purchase. Defendants Bakley and Barnum apparently were concerned

that Barnum's failure to search Vasgar could negate any probable cause

garnered from the informant's tip and the controlled purchase.

4

Plaintiff's residence. The resultant search revealed the

presence of marijuana, methamphetamine, cocaine, Valium

and drug paraphernalia. Plaintiff eventually plead guilty in

New Jersey Superior Court, Law Division, to two counts of

third degree possession with intent to distribute

methamphetamine under N.J.S.A. §§ 2C: 35-5a(1) and 2C:

35-5b(9). His conviction was later overturned by the

Superior Court of New Jersey, Appellate Division, after the

state conceded that " `the affidavit contained a material

falsehood, and that if the falsehood is excised . . . there is

insufficient information to establish probable cause to

support the warrant.' " (Appellant's Br. at App. E-2.2 to E-

2.3.)

Plaintiff thereafter instituted this section 1983 action.

Plaintiff alleged that the search warrant was invalid

because it was based on a falsified affidavit, and thus, the

search of his residence violated his fourth and fourteenth

amendment rights. Defendants moved for summary

judgment on the basis that as public officials, they were

entitled to qualified immunity. In reviewing the affidavit, the

district court excised the affirmative misrepresentations

and supplied the omitted facts "to show the buy which

actually took place on April 4, 1990." Id. at App. E-10.15.

The district court then reevaluated the municipal court

judge's probable cause finding and concluded that no

genuine issue of material fact existed and that this

"corrected affidavit" established probable cause. The district

court therefore granted Defendants' motions for summary

judgment. This appeal followed.

II.

As government officials engaged in discretionary

functions, Defendants are qualifiedly immune from suits

brought against them for damages under section 1983

"insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known." Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982); see also Siegert v. Gilley, 500 U.S. 226,

232-33 (1991) (quoting Mitchell v. Forsyth, 472 U.S. 511,

526 (1985)). Where a defendant asserts a qualified

immunity defense in a motion for summary judgment, the

5

plaintiff bears the initial burden of showing that the

defendant's conduct violated some clearly established

statutory or constitutional right. See In re City of Phila.

Litig., 49 F.3d 945, 961 (3d Cir. 1995); D.R. v. Middle Bucks

Area Vocational Technical Sch., 972 F.2d 1364, 1368 (3d

Cir. 1992); see also Albright v. Rodriguez, 51 F.3d 1531,

1534-35 (10th Cir. 1995).

Only if the plaintiff carries this initial burden must the

defendant then demonstrate that no genuine issue of

material fact remains as to the "objective reasonableness" of

the defendant's belief in the lawfulness of his actions.

Albright, 51 F.3d at 1535. This procedure eliminates the

needless expenditure of money and time by one who

justifiably asserts a qualified immunity defense from suit.

See Siegert, 500 U.S. at 232. Thus, we begin with the

predicate question of whether Plaintiff's allegations are

sufficient to establish " `a violation of a constitutional right

at all.' " In re City of Phila. Litig., 49 F.3d at 961 (quoting

Siegert, 500 U.S. at 232)); Middle Bucks Area Vocational

Technical Sch., 972 F.2d at 1368.

III.

A section 1983 plaintiff who challenges the validity of a

search warrant by asserting that law enforcement agents

submitted a false affidavit to the issuing judicial officer

must satisfy the two-part test developed by the Supreme

Court in Franks v. Delaware, 438 U.S. 154, 155-56 (1978).

See Lippay v. Christos, 996 F.2d 1490, 1502, 1504 (3d Cir.

1993). This is true whether the alleged falsehood is an

affirmative misrepresentation or a material omission. See,

e.g., United States v. Frost, 999 F.2d 737, 742-43 & n.2 (3d

Cir. 1993); Stewart v. Donges, 915 F.2d 572, 582 (10th Cir.

1990).

Under Franks and its progeny, the plaintiff must prove,

by a preponderance of the evidence, (1) that the affiant

knowingly and deliberately, or with a reckless disregard for

the truth, made false statements or omissions that create a

falsehood in applying for a warrant; and (2) that such

statements or omissions are material, or necessary, to the

finding of probable cause. See Franks, 438 U.S. at 171-72;

6

Frost, 999 F.2d at 742-43; Velardi v. Walsh, 40 F.3d 569,

573 (2d Cir. 1994).

Defendants admit generally that the affidavit

misrepresents the facts surrounding the controlled

purchase by Vasgar, and that they acted with knowledge

and deliberateness in drafting the affidavit as they did.2

Thus, the first prong of the Franks standard is satisfied as

to all of the falsehoods contained in the affidavit.

We focus, then, on whether any of the affirmatively false

statements or omissions are material to the finding of

probable cause. Under Franks, falsehoods are deemed

material to the finding of probable cause if the affidavit,

"with the . . . false material set to one side . . . is

insufficient to establish probable cause." Franks, 438 U.S.

at 156. Thus, we proceed to remove the falsehoods from the

affidavit that was submitted to the municipal court judge,

and then, to determine whether Plaintiff has shown there to

be a genuine factual dispute as to the reformulated

affidavit's sufficiency to establish probable cause. In this

initial step of removing the falsehoods from the affidavit, we

will address the affirmative misrepresentations and

omissions contained in the affidavit, in turn.

IV.

When confronted with an affirmative misrepresentation in

an affidavit submitted to procure a search warrant, a court

must excise the false statement from the affidavit. Id.;

United States v. Ford, 22 F.3d 374, 379 (1st Cir. 1994);

Forster v. County of Santa Barbara, 896 F.2d at 1146, 1148

(9th Cir. 1990). A section 1983 plaintiff then must prove by

a preponderance of the evidence that probable cause does

not exist under the corrected affidavit; to wit, the plaintiff

must prove that the false statements were material to the

original probable cause finding.

_________________________________________________________________

2. Defendants argue, though, that they did not intend to violate

Plaintiff's fourth amendment rights and that they believed, based on

their consultation with a Camden County Assistant Prosecutor, that they

were acting in a lawful manner.

7

The application of this rule in the case before us requires

that we make two deletions from the affidavit that

Defendants submitted to the municipal court judge. First,

in paragraph (g) of the affidavit, we must delete the portion

of the sentence that affirmatively states that Defendant

Barnum supplied the informant with money and instructed

him to purchase methamphetamine from Plaintiff. Second,

in paragraph (i) of the affidavit, we must delete the second

sentence. This sentence affirmatively states that the

informant handed Defendant Barnum a package of

methamphetamine, which the informant stated he had

purchased from Plaintiff.

V.

As we have stated in the past, a court, when confronted

with a false affidavit used to obtain a search warrant, must

remove a falsehood created by an omission by supplying

the omitted information to the original affidavit. See, e.g.,

Frost, 999 F.2d at 742-43; United States v. Calisto, 838

F.2d 711, 714-16 (3d Cir. 1988). This approach is logical

because a literal application of the Franks principle would

require a court to excise an omission -- or, more

accurately, the portion of the affidavit reflecting the

omission. See, e.g., United States v. Ippolito, 774 F.2d 1482,

1486-87 n.1 (9th Cir. 1985). We again decline to employ

such a "mechanistic" view of Franks.3 See Calisto, 838 F.2d

at 715.

The affidavit that Defendants presented to the municipal

court judge contained four omissions. First, in paragraph

(g), the affidavit omits that Michael Vasgar accompanied

Defendant Barnum and the informant to Plaintiff's

residence. Second, this paragraph also omits that

Defendant Barnum did not search Vasgar, as he had done

_________________________________________________________________

3. Our independent research reveals apparent unanimity among our

sister circuits as to supplying or adding any omitted facts to the

affidavit. United States v. Gladney, 48 F.3d 309, 314 (8th Cir. 1995);

Velardi, 40 F.3d at 573-74; United States v. Knapp, 1 F.3d 1026, 1029

(10th Cir. 1993); United States v. Higgins, 995 F.2d 1, 4 (1st Cir. 1993);

Stewart, 915 F.2d at 582 n.13; United States v. Martin, 615 F.2d 318,

328 (5th Cir. 1980).

8

to the informant. Third, paragraph (h) -- which details an

"individual['s]" leaving Defendant Barnum's vehicle,

approaching Plaintiff's house, greeting Plaintiff and

entering the house with Plaintiff -- fails to identify this

"individual" as Vasgar. Instead, the paragraph, when read

in the context created by the immediately preceding and

subsequent paragraphs, implies that this "individual" was

the informant. Finally, paragraph (i) likewise omits the

identity of the "person" who exited Plaintiff's house and

returned directly to Defendant Barnum's vehicle. Like

paragraph (h), the statement implies that this "person" was

the informant.

Thus, we must supply these previously omitted facts to

the affidavit. A reconstituted paragraph (g) must disclose

that before arriving at the Sherwood residence, Defendant

Barnum and the informant picked up Michael Vasgar at his

residence and the three then drove to Plaintiff's residence.

Defendant Barnum did not search Vasgar, and Vasgar did

not know of the controlled nature of the narcotics

purchase. Next, paragraph (h) must be rewritten to state

that it was Michael Vasgar who went to the rear door of

Plaintiff's residence, was greeted by Plaintiff and

disappeared into the residence with Plaintiff. Finally,

paragraph (i) must be altered to reflect that it was Michael

Vasgar who exited Plaintiff's house and returned directly to

Defendant Barnum's vehicle.

VI.

As a final matter, we must determine whether the district

court properly concluded that no genuine issue of material

fact exists as to whether this corrected affidavit establishes

probable cause. Probable cause exists to support the

issuance of a search warrant if, based on a totality of the

circumstances, "there is 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 (1983).

Typically, the existence of probable cause in a section

1983 action is a question of fact. Groman v. Township of

Manalapan, 47 F.3d 628, 635 (3d Cir. 1995); Velardi, 40

F.3d at 574 n.1. The district court may conclude in the

9

appropriate case, however, that probable cause did exist as

a matter of law if the evidence, viewed most favorably to

Plaintiff, reasonably would not support a contrary factual

finding.4 Because the issuing municipal court judge never

reviewed the corrected affidavit, we review the district

court's prediction that a reasonable municipal court judge,

presented with the corrected affidavit, could not conclude

that the affidavit was insufficient to establish probable

cause. Cf. Velardi, 40 F.3d at 574 n.1.

We hold that the district court correctly determined that

no genuine issue of material fact exists as to whether the

corrected affidavit supports a finding of probable cause.

Defendant Barnum possesses specialized training in

narcotics enforcement and fifteen years of experience in

drug-related investigations, arrests, and prosecutions.

Defendant Bakley is similarly trained. The informant had

proved reliable in the past by providing information and

assistance "leading to several arrests for drug-related

offenses." (Appellant's Br. at App. E-1.2.)

In this case, the informant told Defendant Barnum that

Plaintiff was presently distributing "large quantities of

alleged methamphetamine from his residence" and that a

drug purchase from Plaintiff could be arranged. Id. Plaintiff

has been arrested numerous times dating back to 1978 for

drug-related offenses in both Camden and Gloucester

counties. During the week of April 2, 1990, Defendants met

with the informant, who tried unsuccessfully "to arrange a

drug purchase from [Plaintiff], but [Plaintiff] was not at

home." Id. Defendant Barnum met with the informant, for

a second time, on April 4, 1990. At this meeting, the

informant told Defendant Barnum that he had arranged a

drug purchase from Plaintiff.

_________________________________________________________________

4. As we recently noted, tension exists as to the proper role of the judge

and jury where qualified immunity is asserted. Grant v. City of

Pittsburgh, 98 F.3d 116, 122 (3d Cir. 1996). The Supreme Court has held

that the application of qualified immunity is a question of law. Siegert,

500 U.S. at 232. In contrast, the existence of probable cause to support

a warrant, when raised in a section 1983 action, is a question of fact.

Groman, 47 F.3d at 635. This may prove problematic in attempting to

resolve immunity issues in the early stages of litigation where a genuine

and material factual dispute exists concerning probable cause.

10

After searching the informant, Defendant Barnum and

the informant drove to Michael Vasgar's residence and

recruited him to assist in the transaction. Defendant

Barnum did not search Vasgar because Vasgar did not

know that Defendant Barnum was a law enforcement

officer and that he was partaking in a controlled narcotics

purchase.

The affidavit then recites that Defendant Barnum and the

informant watched from Barnum's vehicle as Vasgar

approached and knocked on the rear door of Plaintiff's

residence, was greeted by Plaintiff, and both men went into

the residence. Next, the affidavit reports that Vasgar exited

the residence "a few minutes later" and returned directly to

Defendant Barnum's car.

As a result of the revisions made to the affidavit by the

district court, the next paragraph now ambiguously refers

to "evidence" received by Defendant Barnum from the

ostensible transaction. Finally, as relevant, the affidavit

states that Defendant Bakley received a positive response

for methamphetamine after conducting a field test of this

"substance."

We acknowledge that as a result of the need to delete the

affirmative misrepresentations contained in the original

affidavit, the corrected affidavit contains no direct reference

to Vasgar's being given money and instructions by

Defendant Barnum to purchase methamphetamine from

Plaintiff. Also, the corrected affidavit does not state

explicitly that Vasgar returned to Defendant Barnum's

vehicle and handed him a package of methamphetamine

that he claimed to have purchased from Plaintiff. Finally,

the affidavit discloses Vasgar's role in the controlled

purchase and that he was not searched prior to his visit

with Plaintiff.

We find, however, that Plaintiff has failed to demonstrate

that the deletion of the affirmatively false statements and

the supplying of the omitted information materially affected

the existence of probable cause. Defendants received a tip

from a reliable informant and corroborated the tip with a

controlled narcotics purchase. While the details of the

transaction are not ideally set forth in the corrected

11

affidavit, the affidavit still states clearly the content of a

reliable informant's tip, the purpose of the April 4, 1990

visit to Plaintiff's residence, Vasgar's unwitting assistance

in the effort, and Defendants' receipt of methamphetamine

from the visit.

We conclude then that Defendants' affirmative

misrepresentations and omissions were not material to the

probable cause finding. Therefore, we hold that Plaintiff has

failed to carry his initial burden of alleging a violation of a

constitutional right. In light of Plaintiff's failure to carry his

initial burden, Defendants were not required to

demonstrate the objective reasonableness of their beliefs in

the lawfulness of their actions. See Velardi, 40 F.3d at 573;

Forster, 896 F.2d at 1148.

VII.

For the foregoing reasons we will affirm the order of the

district court granting summary judgment in favor of

Defendants.

12

SLOVITER, Chief Judge, dissenting.

I am unable to join the decision of the majority affirming

the district court's grant of summary judgment for the

defendants based on qualified immunity. I believe the

question before us is not, as the majority states at the

outset, one arising out of the fallout from the drug scourge,

but is instead whether zealous law enforcement agents

should be immune from civil liability when they deliberately

falsify information in presenting evidence to the magistrate

in order to obtain a search warrant.

There are relevant facts in this matter that I believe merit

additional consideration before we foreclose civil liability.

Sherwood was the subject of two indictments, one in

Gloucester County and the other in Camden County. He

pled guilty to five charges, three in the Gloucester County

indictment and two in the Camden County indictment. The

latter two charges were both for third degree possession

with intent to distribute methamphetamine, and only those

are at issue here. Sherwood's guilty plea came only after

the state trial judge denied his motion to suppress the

evidence obtained as a result of the Camden County

search. Sherwood was sentenced to imprisonment on terms

to run concurrent with each other and with those on the

Gloucester County charges.

On appeal, the Superior Court of New Jersey, Appellate

Division, affirmed the convictions and sentences on the

Gloucester County charges, but vacated the convictions

arising under the Camden County indictment because the

search and seizure were predicated on a warrant obtained

upon an affidavit based on knowingly false information. In

fact, the per curiam decision of the state appellate court

states that "[t]he State concedes that, `the affidavit

contained a material falsehood, and that if the falsehood is

excised . . . there is insufficient information to establish

probable cause to support the warrant.' " App. at E-2.2-3.

Upon remand, the trial division then vacated the judgment

of conviction on the Camden County indictment, "it . . .

appearing that the State has insufficient evidence absent

the suppressed evidence to even have the case submitted to

a jury." App. at E-3-1.

13

In light of this finding by the state court and the state's

concession, I find surprising the majority's conclusion that

the defendant officers' misrepresentations and omissions

were not material to the finding of probable cause by the

magistrate. Admittedly, the New Jersey courts did not need

to make the sophisticated analysis of the precedent

engaged in by the majority because the state conceded the

issue. But it must have had some basis to make such a

concession. Thus, I can only attribute the majority's

conclusion to its decision that the defendants' affidavit

should not only be redacted of all of the

misrepresentations, but that the affidavit should be

corrected to include the relevant facts omitted by the

officers. It is with that process that I disagree.

The relevant analysis must begin with Franks v.

Delaware, 438 U.S. 154 (1978), where the issue arose in

the context of a defendant's appeal from his conviction in

state court on the ground that the warrant affidavit was

procured by misrepresentations. Although proof of

negligence or innocent mistake is insufficient, the Supreme

Court rejected the state's argument that a defendant may

never challenge the veracity of a sworn statement used by

police to procure a search warrant. Instead, the Court held

that such a challenge may be made "where the defendant

makes a substantial preliminary showing that a false

statement knowingly and intentionally, or with reckless

disregard for the truth, was included by the affiant in the

warrant affidavit, . . . if the allegedly false statement is

necessary to the finding of probable cause . . . .". Id. at 155.

In discussing whether an evidentiary hearing is necessary

when such a challenge is made by a defendant seeking to

exclude the fruits of the search on the basis of a Fourth

Amendment violation, the Court noted that a hearing is not

required "if, when material that is the subject of the alleged

falsity or reckless disregard is set to one side, there remains

sufficient content in the warrant affidavit to support a

finding of probable cause." Id. at 171-72 (emphasis added).

Thus, Franks speaks only in terms of setting aside the

falsities, and says nothing about substitution of the omitted

facts.

14

As the majority notes, many circuits seem to have

extended Franks not only to exclude material

misstatements from the reconstituted affidavits but also to

include material omissions. See e.g., United States v.

Knapp, 1 F.3d 1026, 1029 (10th Cir. 1993); United States

v. Frost, 999 F.2d 737, 743 (3d Cir.), cert. denied, 510 U.S.

1001 (1993); United States v. Higgins, 995 F.2d 1, 4 (1st

Cir. 1993); United States v. Martin, 615 F.2d 318, 328 (5th

Cir. 1980). However, the inquiry in those cases was made

in criminal proceedings pursuant to the defendant's

challenge to the affidavit on Fourth Amendment grounds,

and was designed to ascertain "whether the affidavit would

have provided probable cause if it had contained a

disclosure of the omitted information." Frost , 999 F.2d at

743.

That is not the issue before us. Instead, in this civil

action for damages for violation of the plaintiff's

constitutional rights, we must decide whether

reconstitution of the warrant affidavit should be permitted

to provide a defense on behalf of those police officers who

conceded that they knowingly misrepresented the facts. I

fail to see any persuasive reason in the majority's opinion

why we should do so. It is not required by the Supreme

Court's jurisprudence on this issue; certainly not by Franks

where the Court, albeit in another context, voiced its

disapproval of insulation of an officer's deliberate

misstatements. See 428 U.S. at 164 n.6.

The majority relies on this court's opinion in United

States v. Calisto, 838 F.2d 711 (3d Cir. 1988), where we

rejected a criminal defendant's argument that we should

limit our redaction of the warrant affidavit to striking the

intentionally misleading portions and determine the

existence of probable cause by reference only to the

redacted document. See id. at 715. Instead, we considered

whether the affidavit would still have provided probable

cause if the facts omitted from the affidavit had been

disclosed, i.e., that the information about the defendant

that led to the issuance of the warrant passed through the

hands of two additional police officers. See id. We decided

that even with the information that had been omitted to

conceal the participation of two law enforcement officers in

15

order to protect the original confidential informant, there

would have been probable cause. Therefore we concluded

that there was no causal connection between the deception

and the challenged search. See id. at 716.

But Calisto, like the defendants in the cases referred to

above, was a criminal defendant seeking to challenge the

validity of the search, and there are obvious policy reasons

why a court may be reluctant to suppress the fruits of a

search, notwithstanding erroneous information in an

affidavit, if the objective circumstances would have

supported a finding of probable cause. It is much more

difficult to find a policy argument that would justify

shielding police officers who knowingly lied in the warrant

affidavit from a civil suit seeking damages for redress of a

constitutional injury. That Sherwood was injured is patent

from the record, for he was indicted and ultimately

sentenced based on an affidavit that the State subsequently

conceded did not establish probable cause.

Significantly, the Calisto opinion stressed that if there

were any intent on the police officer's part to mislead the

magistrate, it "was occasioned not by a scheme to deceive

the magistrate about a material fact, but by a desire to

withhold a fact not material to the magistrate's task." Id. at

715. In contrast, in this case Barnum and Bakley withheld

the information that it was Vasgar, not the confidential

informant, who was sent to buy methamphetamine from

Sherwood without having been searched for drugs before he

undertook the buy because they were apparently concerned

that a magistrate might not otherwise issue a warrant. They

had neglected to search Vasgar before the buy, and

therefore prepared a false and misleading affidavit which

made it seem as if it were the confidential informant who

was searched and who made the drug purchase thereafter.

Unlike the situation in Calisto, in Sherwood's case the

materiality of the omission was deemed determinative by

the state court and as a result it vacated Sherwood's

conviction on those counts.

This court has already indicated the approach to be

followed when the issue is not whether evidence should be

suppressed but whether the officers should be shielded

from liability for civil damages by qualified immunity. The

16

test under qualified immunity is an objective one, and an

officer will not be subject to liability for an illegal search or

seizure merely because it later develops that the warrant

was invalid. On the other hand, we have stated that "If a

police officer submits an affidavit containing statements he

knows to be false or would know are false if he had not

recklessly disregarded the truth, the officer obviously failed

to observe a right that was clearly established. Thus, he is

not entitled to qualified immunity." Lippay v. Christos, 996

F.2d 1490, 1504 (3d Cir. 1993)(citations omitted)(emphasis

added). This view has also been expressed by other circuits.

See Hervey v. Estes, 65 F.3d 784, 788 (9th Cir.

1995)(holding that if officer submitted an affidavit that

contained statements he knew to be false "the shield of

qualified immunity is lost"); Kelly v. Curtis, 21 F.3d 1544,

1555 (11th Cir. 1994)(holding that officer had violated a

clearly established constitutional right by seeking arrest

warrant on conclusory affidavit); Olson v. Tyler, 771 F.2d

277, 282 (7th Cir. 1985)(stating that "in cases in which

suppression would be warranted because an officer was

dishonest or reckless in preparing a warrant affidavit, that

officer would not enjoy good faith immunity for civil

damages.").

The majority relies on the decision of the Second Circuit

in Velardi v. Walsh, 40 F.3d 569 (2d Cir. 1994), a § 1983

case against two police officers alleging that they had

materially misled the magistrate in order to procure a

search warrant. In that civil case the court did allow an

affidavit to be corrected to show that the police officers,

who had not made the personal observations on which the

original warrant was predicated, had relied on observations

of others. The court held that if the affidavits were corrected

with the omitted facts, there still would have been probable

cause. See id. at 574-75.

Velardi is the only case we have found that allowed

"correction" in order to provide police officers who

deliberately misrepresented material facts with qualified

immunity. In Stewart v. Donges, 915 F.2d 572 (10th Cir.

1990), the only other § 1983 case cited by the majority in

its list of circuit decisions, see Majority Op. at 8 n.3, the

"correction" of the warrant affidavit was not made to shield

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the officer but, on the contrary, to show why he was not

entitled to such a shield. The plaintiff in Stewart based his

allegation of police misrepresentation on the officer's failure

to state in the warrant affidavit that the principal

complainant had recanted his testimony and confessed it

was a fabrication. The court held that if the affidavit were

modified with this exculpatory evidence, it would not

support probable cause. Thus, had there been no material

issue of fact, the modification would have defeated qualified

immunity rather than shielded the police from suit. See id.

at 582-83.

The distinction was specifically noted by the Eighth

Circuit when it stated: "We express no view as to whether

a defendant whose affidavit contained a deliberate

falsehood should be entitled to qualified immunity if a

corrected affidavit would still provide probable cause. A

more stringent rule may be appropriate when a liar seeks

the benefit of this defense." Bagby v. Brondhaver, 98 F.3d

1096, 1099 n.2 (8th Cir. 1996).

Ultimately, of course, a plaintiff in a § 1983 case must

prove his or her case before a jury if the path to that end

is not prevented by the qualified immunity defense. That

was the process that we followed in Lippay. I would follow

that process here, as the knowing and deliberate

misstatements are conceded. Thus, I respectfully dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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