Doe v. Groody

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

3-19-2004

Doe v. Groody

Precedential or Non-Precedential: Precedential

Docket No. 02-4532

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PRECEDENTIAL Joseph Groody; Adam Bermodin;

Robert Phillips; Robert Bruce,

UNITED STATES COURT OF

APPEALS Appellants

FOR THE THIRD CIRCUIT

No. 02-4532 On Appeal from the United States

District Court

for the Middle District of Pennsylvania

JOHN DOE, Parent and Natural (Dist. Court No. 00-cv-00356)

Guardian of Mary Doe, a minor; District Judge: Honorable James F.

JANE DOE, Parent and Natural McClure, Jr.

Guardian of Mary Doe, a minor,

and in her own right; RICHARD DOE

Argued: September 15, 2003

v.

Before: ALITO, AMBRO and

JOSEPH GROODY; MICHAEL CHERTOFF, Circuit Judges.

AULENBACH; ADAM BERMODIN;

SUSAN JONES; BOROUGH OF (Filed March 19, 2004)

ASHLAND; ROBERT PHILLIPS;

JEFFREY WALCOTT; R. P.

SCHAEFFER; BOROUGH OF

SCHUYLKILL HAVEN; JACK Andrew A. Solomon (Argued)

SHEARIN; BOROUGH OF 2 Long Lane

FRACKVILLE; ROBERT BRUCE, Malvern, PA 19355

Office of the Attorney General, Bureau

of Narcotics Investigation (BNI), John M. Dodig

Commonwealth of Pennsylvania; Master, Weinstein, Schnoll & Dodig

OFFICE OF ATTORNEY GENERAL, 1818 Market Street, Suite 3620

BUREAU OF NARCOTICS Philadelphia, PA 19103

INVESTIGATION (BNI),

COMMONWEALTH OF Counsel for Appellees

PENNSYLVANIA; SCHUYLKILL

COUNTY DRUG TASK FORCE, John G. Knorr, III, Esq. (Argued)

County of Schuylkill 15th Floor

Office of Attorney General of

Pennsylvania

1

Department of Justice entitled to qualified immunity.

Strawberry Square

I.

Harrisburg, PA 17120

On March 6, 1998, as the result of

Counsel for Appellants a long-term investigation of John Doe for

suspected narcotics dealing, officers of the

Schuylkill County Drug Task Force

(“Task Force”) sought a search warrant for

OPINION OF THE COURT Doe and his residence.1 The typed

affidavit in support of the warrant

application stated, in pertinent part, that a

CHERTOFF, Circuit Judge. reliable confidential informant had

Four police officers appeal from the purchased methamphetamine on several

denial of qualified immunity in a lawsuit occasions from John Doe, at Doe’s

alleging the unlawful search of occupants “residence/office,” or from a Volkswagen

of a residence in Schuylkill County, automobile parked in front. In addition,

Pennsylvania. The officers argue that they the affidavit noted that individuals with

did not violate clearly established federal histories of prior narcotics use or with

constitutional rights when they searched a drug gang affiliations had been observed

mother and her ten year old daughter in by Task Force members entering or

the course of executing a search warrant leaving John Doe’s residence. Finally, the

for narcotics at their home. affidavit indicated that the most recent

methamphetamine purchase by the

The appeal turns on the scope of

informant had occurred within the

search authorized by the warrant. To

preceding 48 hours.

resolve this issue, we must consider under

what circumstances the scope of a warrant The typed affidavit requested

may be expanded by looking to the permission to search John Doe’s residence

accompanying affidavit. We hold it to be and his Volkswagen for drugs,

clearly established that unless a search paraphernalia, money, drug records and

warrant specifically incorporates an other evidence. Additionally, the affidavit

affidavit, the scope of the warrant may not stated:

be broadened by language in that affidavit.

The search should also

We also conclude that, under any

reasonable reading, the warrant in this

case did not authorize the search of the

1

mother and daughter, and that the search We refer to the family in question

was not otherwise justified. Accordingly, as Doe because they filed their case under

we will affirm the District Court’s that name, although the actual names of

determination that the officers are not family members are disclosed in the

record.

2

include all occupants of the . the residence of [John

residence as the information Doe] and all occupants

developed shows that [Doe] therein.

has frequent visitors that

¶¶ 17, 20, & 21.

purchase methamphetamine.

These persons may be on The typed affidavit was signed on

the premises at the time of the last page by a police officer, under

the execution of the search whose signature was the entry: “Sworn

warrant and many attempt to and subscribed before District Justice

conceal controlled James R. Ferrier 21-3-03, this 6th of March

substances on their persons. 1998.” Under the legend was the

Magistrate’s signature, followed by the

. . .

phrase “Issuing Authority” and the

This application seeks impression of a rubber stamp.

permission to search all

The warrant was attached to a

occupants of the residence

separate printed face sheet, entitled

and their belongings to

“Search Warrant and Affidavit.” That

prevent the removal,

form contained boilerplate introductory

concealment, or destruction

language, followed by open blocks for

of any evidence requested in

someone to type information. The first

this warrant. It is the

block asked for the identity of the “items

experience of your co-

to be search for and seized.” The

affiants that drug dealers

following blocks asked, in turn, for a

often attempt to do so when

“[s]pecific description of premises and/or

faced with impending

persons to be searched”; the “[n]ame of

apprehension and may give

owner, occupant or possessor of said

such evidence to persons

premises to be searched”; a description of

who do not acutally reside

the nature and date of the statutory

or own/rent the premises.

violations; and for the basis of “[p]robable

This is done to prevent the

cause belief.” Finally, the printed face

discovery of said items in

sheet contained a space to delineate the

hopes that said persons will

results of the search, to be completed after

not be subject to search

the warrant was executed.

when police arrive.

These printed blocks were

. . .

completed. In response to the questions

As a result of the “[d]ate of violation” and “[p]robable cause

information developed, your belief,” the face sheet specifically referred

affiant requests that a search to the typed affidavit of probable cause

warrant . . . be issued for . . attached to the warrant. But in answering

3

the question “[s]pecific description of John and Jane Doe filed a

premises and/or persons to be searched,” complaint under 42 U.S.C. § 1983 on their

the attached typed affidavit was not own behalf, and on behalf of Mary Doe,

mentioned. Rather, the form contained a against the searching officers and their

typewritten entry naming only John Doe, superiors, and against various government

giving his description, date of birth and entities. The Does alleged, among other

social security number, and identifying things, that the officers illegally strip

and describing John Doe’s residence. searched Jane and Mary Doe. After

preliminary litigation skirmishing, a

The printed warrant and affidavit

number of claims and parties were

face sheet was signed by the same police

dismissed, and discovery was conducted.

officer and “issuing authority” who had

Cross motions for summary judgment

signed the underlying typed affidavit.

were filed. One of these was a motion by

Armed with the warrant, Task individual police officers for summary

Force police went to the John Doe house judgment rejecting the strip search claim

to carry out the search. Evidently, they on the ground of qualified immunity. The

anticipated encountering females because District Court granted the motion for two

they enlisted a female traffic meter patrol officers, but denied qualified immunity to

officer to be available if necessary to assist officers Joseph Groody, Adam Bermodin,

in the search. As the officers approached and Robert Phillips and Agent Robert

the house, they met John Doe, and brought Bruce, the four Task Force officials who

him into the house. Once inside, however, were directly involved in the search of

the officers found no visitors, but only Jane Doe and Mary Doe. The District

John Doe’s wife, Jane, and their ten year Judge also granted partial summary

old daughter, Mary. judgment against those four officers on

the issue of liability.

The officers decided to search Jane

and Mary Doe for contraband, and sent for The four Task Force officers appeal

the meter patrol officer. When she the denial of summary judgment based on

arrived, the female officer removed both qualified immunity.

Jane and Mary Doe to an upstairs

II.

bathroom. They were instructed to empty

their pockets and lift their shirts. The We have jurisdiction over that

female officer patted their pockets. She portion of the District Court’s decision

then told Jane and Mary Doe to drop their rejecting the claim of qualified immunity

pants and turn around. No contraband by the four officers. Although the

was found. With the search completed, litigation below is far from concluded, a

both Jane and Mary Doe were returned to denial of qualified immunity that turns on

the ground floor to await the end of the an issue of law—rather than a factual

search. dispute—falls within the collateral order

4

doctrine that treats certain interlocutory judgment record, drawing all inferences in

decisions as “final” within the meaning of favor of the plaintiff. Behrens, 516 U.S.

28 U.S.C. § 1291. Behrens v. Pelletier, at 309; Torres, 163 F.3d at 170. Second,

516 U.S. 299, 307, 313 (1996); Mitchell v. if we believe that a constitutional violation

Forsythe, 472 U.S. 511, 525 (1985); In re did occur, we must consider whether the

Montgomery County, 215 F.3d 367, 373 right was “clearly established.” Saucier,

(3d Cir. 2000). All parties here 533 U.S. at 201; see Groh v. Ramirez, 540

acknowledge, and we agree, that there is U.S. , No. 02-811, slip op. at 12 (U.S.

no genuine issue of fact that relates to the filed Feb. 24, 2004).2 The question is

qualified immunity issue that is being “whether it would be clear to a reasonable

appealed. Accordingly, we may decide officer that his conduct was unlawful in

this appeal. Our review of this legal issue the situation he confronted.” Id. at 202.

is plenary. Eddy v. V.I. Water and Power This is an objective inquiry, to be decided

Auth., 256 F.3d 204, 208 (3d Cir. 2001); by the court as a matter of law.

Torres v. McLaughlin, 163 F.3d 169, 170 Bartholomew v. Pennsylvania, 221 F.3d

(3d Cir. 1998). 425, 428 (3d Cir. 2000).

Qualified immunity protects law III.

enforcement officers from being tried for

The constitutional violation at issue

actions taken in the course of their duties.

here arises under Jane and Mary Doe’s

If the immunity applies, it entitles the

Fourth (and Fourteenth) Amendment

officer to be free of the “burdens of

rights to be free of unreasonable searches

litigation.” Mitchell, 472 U.S. at 526. But

and seizures.3 Both Jane and Mary Doe

the immunity is forfeited if an officer’s

were physically removed to the bathroom

conduct violates “clearly established

statutory or constitutional rights of which

a reasonable person would have known.” 2

Groh, which bears heavily on this

Wilson v. Layne, 526 U.S. 603, 614 case, was decided well after this case was

(1999) (quoting Harlow v. Fitzgerald, 457 briefed and argued. That decision has not

U.S. 800, 818 (1982)). To determine in altered the law that previously applied in

this case whether the officers have lost this area.

their immunity, we must engage in a two

3

step analysis. First, we must decide Because the Fourth Amendment

“whether a constitutional right would have (as incorporated into the Fourteenth)

been violated on the facts alleged . . . .” furnishes the “explicit textual source” for

Saucier v. Katz 533 U.S. 194, 200 (2001). the constitutional protection against

Because we consider an appeal by the unlawful searches and seizures, we look to

officers from the denial of their motion for it, rather than more general notions of due

summary judgment, we must evaluate the process, in analyzing the claim of

undisputed facts based on the summary constitutional violation. Albright v.

Oliver, 510 U.S. 266, 273 (1994).

5

of their house and detained there for a simply does not address the non-protective

period of time. They were asked to body search that is before us in this matter.

remove or shift articles of clothing and

A non-protective search must

were visually inspected and touched by a

normally be supported by probable cause,

female officer who was searching for

and, with certain exceptions, must be

contraband. Later, they were moved to the

authorized by a warrant. The officers

ground floor and detained there during the

principally argue that the search of both

balance of the house search.

females was covered by the warrant for

The nature of the intrusion alleged the search of the house and was supported

is significant. In Leveto v. Lapina, 258 by probable cause. If a warrant did indeed

F.3d 156, 172-75 (3d Cir. 2001), this authorize a search of Jane and Mary Doe,

Court held that, as of 2001, it was unclear then the officers were entitled to rely upon

whether police searching a premises could it to satisfy the probable cause

permissibly detain those present or “frisk” requirement, and there was no

them for protective purposes. But the constitutional violation.4 United States v.

facts here are different than those in Leon, 468 U.S. 897, 922 (1984).

Leveto. Although Jane and Mary Doe

The face of the search warrant here,

were detained during the course of the

however, does not grant authority to

search in this case, the District Court

search either Jane or Mary Doe. The

denied qualified immunity for the search,

block designated for a description of the

not the detention. Insofar as Leveto

person or place to be searched specifically

discusses detention, therefore, it is

names John Doe, and identifies and

irrelevant to this issue. Similarly, neither

describes his residence. Nothing in that

the Does nor the officers contend that the

portion of the printed warrant refers to any

search here was a protective “frisk” or

other individual, named or unnamed, to be

search for weapons that is justified on less

searched. Seeking to remedy this

than full probable case. See Terry v.

omission, the officers argue that the

Ohio, 392 U.S. 1, 16, 25-30 (1968);

warrant should be read in light of the

Leveto, 258 F.3d at 163-64. Rather, the

accompanying affidavit which requested

officers concede that Jane and Mary Doe

permission to search “all occupants” of the

were searched for possible evidence or

contraband, and not because they were

viewed as possibly armed or dangerous.

4

Indeed, it is difficult to conceive how the Of course, that reliance

search of a ten-year old child in these presupposes that there is no deliberate

circumstances could be justified as part of material misrepresentation in the

a “protective sweep.” Because the supporting affidavit. See Franks v.

decision in Leveto concerned the special Delaware, 438 U.S. 154, 155 (1978).

rules governing protective searches, it There is no allegation of such a

misrepresentation in this case.

6

residence. They conclude that the warrant incorporate the affidavit. Bartholomew,

should be read in “common sense” which the officers invoke, makes this very

fashion, as supplemented by the affidavit. point. In that case, we observed that

If that contention is correct, then police “‘[w]hen a warrant is accompanied by an

had legal authority to search anybody that affidavit that is incorporated by reference,

they encountered inside the house when the affidavit may be used in construing the

they came to execute the warrant. scope of the warrant.’” Id. at 428 (quoting

United States v. Johnson, 690 F.2d 60, 64-

To be sure, a warrant must be read

65 (3d Cir. 1982), cert. denied, 459 U.S.

in a common sense, non-technical fashion.

1214 (1983)). We dwelled at some length

United States v. Ventresca, 380 U.S. 102,

on the importance of making that

109 (1965). But it may not be read in a

incorporation clear. Id. at 428 & n.4

way that violates its fundamental

(citing cases). The Supreme Court has

purposes. As the text of the Fourth

very recently re-emphasized this point in

Amendment itself denotes, a particular

Groh. 540 U.S. at , slip op. at 6.

description is the touchstone of a warrant.

U.S. Const. amend. IV. The requirement In this case, there is no language in

of a particular description in writing the warrant that suggests that the premises

accomplishes three things. First, it or people to be searched include Jane Doe,

memorializes precisely what search or Mary Doe, “all occupants” or anybody

seizure the issuing magistrate intended to else, save John Doe himself. Other

permit. Second, it confines the discretion portions of the face sheet which describe

of the officers who are executing the the date of the violation and the

warrant. Marron v. United States, 275 supporting probable cause do refer to the

U.S. 192, 196 (1927). Third, it “inform[s] attached typed affidavit. But this fact is

the subject of the search what can be actually unhelpful to the officers, since it

seized.” Bartholomew, 221 F.3d at 429. demonstrates that where the face sheet was

For these reasons, although a warrant intended to incorporate the affidavit, it

should be interpreted practically, it must said so explicitly. As a matter of common

be sufficiently definite and clear so that sense, as well as logic, the absence of a

the magistrate, police, and search subjects reference to the affidavit must therefore be

can objectively ascertain its scope. See viewed as negating any incorporation of

Groh, 540 U.S. at __, slip op. at 5. that affidavit.5

As the officers correctly observe, it

is perfectly appropriate to construe a 5

At oral argument, counsel for the

warrant in light of an accompanying officers suggested that the signature of the

affidavit or other document that is Magistrate under the oath line on the

incorporated within the warrant. But to affidavit somehow converted the affidavit

take advantage of this principle of into a warrant. But counsel conceded that

interpretation, the warrant must expressly there is nothing in the record to support

7

We recognize that there are the language of the warrant is inconsistent

decisions in which an affidavit has been with the language of the affidavit, because

used to save a defective warrant even the former does not grant what the latter

when it has not been incorporated within sought—permission to search “all

that warrant. But the cases fall into two occupants” of the house. That is not a

categories. The first embraces those discrepancy as to form; it is a difference as

circumstances in which the warrant to scope. And it is a difference of

contains an ambiguity or clerical error that significance. A state magistrate reviewing

can be resolved with reference to the a search warrant affidavit might well draw

affidavit. In these situations, it is clear the line at including unnamed “all

that the requesting officers and the occupants” in the affidavit because

magistrate agreed on the place to be Pennsylvania law disfavors “all occupant”

searched or item to be seized, but there is warrants. See Commonwealth v. Gilliam,

an obvious ministerial error in 560 A.2d 140, 142 (Pa. 1989). Thus, the

misidentifying or ambiguously identifying circumstances of this warrant are a far cry

the place or item. See, e.g., United States from those in the category of warrants

v. Ortega-Jimenez, 232 F.3d 1325, 1329 which can be “clarified” by a separate

(10th Cir. 2000) (ambiguous term); United affidavit.

States v. Simpson, 152 F.3d 1241, 1248

The second category of decisions in

(10th Cir. 1998) (internal inconsistency in

which an unincorporated affidavit has

warrant). Reliance on the affidavit in

been read to modify a search warrant is

these circumstances neither broadens nor

constituted by cases in which the affidavit

shrinks the scope of the warrant, but

is particularized but the warrant is

merely rectifies a “[m]inor irregularit[y].”

overbroad. See, e.g., United States v.

United States v. Johnson, 690 F.2d at 65

Bianco, 998 F.2d 1112, 1116-17 (2d Cir.

n.3 (quoting Ventresca, 380 U.S. at 108).

1993); United States v. Towne, 997 F.2d

The omission of Jane Doe, Mary 537, 547 n. 5 (9th Cir. 1993) (discussing

Doe, or “all occupants” from the warrant cases). So long as the actual search is

in this case cannot be viewed as the sort of confined to the narrower scope of the

ambiguity or misidentification error that affidavit, courts have sometimes allowed

can be clarified by inspecting the affidavit. the unincorporated affidavit to “cure” the

This warrant has no ambiguous or warrant, id., or at least have treated the

contradictory terms on its face. Rather, excessive elements of the warrant as

harmless surplusage, see United States v.

Stefonek, 179 F.3d 1030, 1033-34 (7th

the notion that, by witnessing the affiant’s Cir. 1999).6

oath, the judge intended to convert the

police officer’s wish into a judicial

6

command. Without some support for this For the same reasons, this Court

strained contention, we decline to adopt it. has upheld redaction as a means of

8

Commonwealth v. Carlisle, 534 The warrant provides the license to

A.2d 469 (Pa. 1987), cited by the officers search, not the affidavit. Cases such as

on this appeal, is a good example. There, Bianco, Towne and Carlisle may allow us

the police searched a specific apartment at to rescue an overbroad warrant if the

an address. The affidavit identified the police forbear from exercising the full

apartment number and street address, but measure of its excessive scope. It does not

the search warrant only mentioned the follow that we can rescue an overbroad

street address. Noting that the officers had search if the police exceed the full

only searched the specific apartment for measure of the warrant. Bluntly, it is one

which they had requested the warrant, the thing if officers use less than the authority

Supreme Court of Pennsylvania held that erroneously granted by a judge. It is quite

the arguably overbroad scope of the another if officers go beyond the authority

warrant should be read narrowly in light of granted by the judge. Were we to adopt

the affidavit. In other words, the warrant the officers’ approach to warrant

clearly authorized the search of the i n t e r p re t a t io n , a n d a l l o w a n

specific apartment and, perhaps, too much unincorporated affidavit to expand the

more. Since the police limited themselves authorization of the warrant, we would

to the narrow search—which was clearly come dangerously close to displacing the

permitted by the warrant and supported by critical role of the independent magistrate.

the affidavit—the affidavit was permitted

This point was reemphasized

to narrow the scope of the warrant.

forcefully this term by the Supreme Court

Tellingly, the court observed that had the

in Groh v. Ramirez. In Groh, the Bureau

police searched more broadly, the fruits of

of Alcohol, Tobacco and Firearms

that search would have been suppressed.

completed an application and affidavit that

Id. at 472.

detailed with specificity that the agents

In the case we consider now, sought to search for and seize a cache of

however, the circumstances are precisely firearms suspected to be located at the

the reverse of the preceding category of home of Joseph Ramirez. Groh, 540 U.S.

“cure” cases. Here, the affidavit is at __, slip op. at 2. The warrant was less

broader than the warrant, and the police in specific. In the portion of the printed

fact searched more broadly than the warrant form “that called for a description

warrant. Unlike Carlisle, then, the officers of the ‘person or property’ to be seized,”

seek to use the affidavit to expand, rather the agents identified the location to be

than limit, the warrant. That makes all the searched, but neither listed the items to be

difference. seized nor “incorporate[d] by reference the

itemized list contained in the application.”

Id. The warrant did refer to the affidavit

narrowing a warrant. United States v. by reciting that the Magistrate was

Christine, 687 F.2d 749, 759-60 (3d Cir. satisfied that the affidavit established

1982).

9

probable cause to believe that contraband In Groh, as here, the warrant

was concealed on the premises. Id. On expressly referred to the affidavit in

the authority of the warrant, the Bureau affirming the existence of probable cause,

searched Ramirez’s house. Id. at 3. The but not in describing what was to be

Bureau did not seize anything, nor were searched and seized. Id. at 2-3.

any charges filed against Ramirez.7 Id.

In Groh, as here, the M agistrate

Ramirez sued Groh and the other officers

reviewed the warrant and affidavit, and did

for a Fourth Amendment violation.

not alter the warrant before signing it.

The facts in Groh were strikingly

On these facts, the Supreme Court

similar to those in this case:

held the search warrant invalid. Id. at 11.

In Groh, as here, the agents The Court’s reasoning turned precisely on

submitted an application and affidavit that the sharp distinction the law draws

detailed what they wanted to search and to between what is authorized in a warrant,

seize. Id. at 2. and what is merely an application by the

police. Id. at 5-6. The Court recognized

In Groh, as here, the affidavit

that the application and affidavit contained

sought to supply probable cause to search

an adequate description of the items to be

for, and seize, those listed items. Id.

seized, but observed that because neither

In Groh, as here, the warrant form was incorporated by reference into the

was prepared by the officer who wrote the warrant description of “‘persons or

affidavit, and who presumably intended property’ to be seized,” their contents were

the warrant to authorize the search and irrelevant. Id. at 2, 5-6. But the Court

seizure of the items in the affidavit. Id. at explicitly rejected the argument that one

12.8 could infer that the Magistrate must have

intended the warrant to authorize the full

7

scope of what was sought in the affidavit:

At the conclusion of the search,

agents provided Ramirez’s wife with a [U]nless the particular items

copy of the warrant, though not a copy of described in the affidavit are

the application and affidavit, which had also set forth in the warrant

been sealed. Agents did provide copies of itself . . . there can be no

the relevant portions of the application written assurance that the

upon a request by Ramirez’s lawyer, Magistrate actually found

however. Groh, 540 U.S. at __, slip op. at

3.

“[B]ecause petitioner himself prepared the

8

Indeed, because the officer who invalid warrant, he may not argue that he

wrote the affidavit also drafted the warrant reasonably relied on the Magistrate’s

form, the Supreme Court found the assurance that the warrant contained an

defective warrant less justifiable, saying: adequate description . . . .” Id. at 12.

10

probable cause to search for, oversight. And that also makes it all the

and to seize, every item less reasonable to read permission to

mentioned in the affidavit. search them into the text of the warrant.

... We are mindful that search

warrants and affidavits are often prepared

The mere fact that the

under time pressure and should not be

Magistrate issued a warrant

subjected to microscopic dissection. But

does not n ecess arily

the warrant plays a critical role under the

establish that he agreed that

Fourth Amendment. At some point,

the scope of the search

flexibility becomes breakage. The warrant

should be as broad as the

must be written with objective definition,

affiant’s request.

or its scope will not be discernable to

Id. at 8, 9. That rule disposes of those who are bound to submit to its

appellants’ reliance on the affidavit here. authority, whether they are police or

subjects of the search. By the same

Moreover, this case would be a

token, without a clear reference to the

particularly bad instance in which to allow

affidavit in the warrant, the former cannot

a broad affidavit to overwhelm a narrow

simply be assumed to broaden the latter.

warrant. For when we examine the

Otherwise, we might indeed transform the

affidavit on which the officers rely, it is

judicial officer into little more than the

doubtful that probable cause exists to

cliche “rubber stamp.”

support a search of John Doe’s wife and

minor daughter. Paragraphs 17 and Finally, we consider whether the

20—which are the provisions seeking to search of Jane and Mary Doe can be

justify an “all occupants” search—quite justified on some basis other than the

specifically argue that visitors may be warrant. The officers have not seriously

present purchasing drugs and that dealers pressed this argument, but the District

often give contraband to non-residents of Court did consider whether the officers

a house in the hopes they will not be had probable cause to search Jane and

searched. We look in vain for any Mary Doe under an exception to the

assertion that narcotics dealers often hide warrant requirement.

drugs on family members and young

None appears. A search warrant

children. Perhaps they do; but the judge

for a premises does not constitute a license

reviewing this affidavit would not know it.

to search everyone inside. Ybarra v.

So, if anything, these paragraphs of the

Illinois, 444 U.S. 85 (1979). The record

affidavit appear to undermine the probable

does not disclose any independent basis to

cause to search Jane and Mary Doe. That

suspect Jane Doe—let alone 10-year old

is all the more reason to doubt that the

Mary Doe—of drug activity. While the

Magistrate’s failure to include these two

officers justified their decision to conduct

family members in the warrant was an

11

the personal searches because of the ease established even if there is ‘no previous

with which contraband could be concealed precedent directly in point.’” Id. at 162

on those present in the searched premises, (quoting Good v. Dauphin County Soc.

that is precisely the justification for a Servs. for Children & Youth, 891 F.2d

personal search that has been rejected by 1087, 1092 (3d Cir. 1989)).

the Supreme Court. Id. at 94-96. Simply

The principal narrow question in

put, there is none of the kind of

this case is whether in 1999, when these

“particularized” probable cause required

searches occurred, it was clearly

for a search in circumstances such as

established that police could not broaden

these. Id. at 91.

the scope of a warrant with an

IV. unincorporated affidavit. We think that a

review of the cases indicates that it was.

Having determined that the search

of Jane and Mary Doe violated theFourth We begin with the settled

Amendment, what remains is to decide proposition that the Fourth Amendment

whether this violation transgressed “prevents the seizure of one thing under a

“clearly established” rights. The District warrant describing another.” Marron, 275

Court held that it did, and the officers U.S. at 196. That is both uncontroverted

argue that the District Court applied the and long established. As we observed

“clearly established” test at too high a above, a warrant may be modified by an

level of generality. affidavit when it is expressly incorporated

by reference. We so held as early as our

We agree that in determining

1982 decision in United States v. Johnson,

whether a right is “clearly established,” we

690 F.2d at 64-65. Pennsylvania cases

should analyze the right with specificity.

agree. See Commonwealth v. Wilson, 631

Bartholomew, 221 F.3d at 429. Where a

A.2d 1356, 1358 (Pa. Super. Ct. 1993).9

challenged police action presents a legal

But there is no express incorporation here.

question that is “unusual and largely

heretofore undiscussed,” id. at 429, or

where there is “at least some significant

9

authority” that lends support of the police Wilson specifically held that a

action, Leveto, 258 F.3d at 166, we have reference to all persons present in an

upheld qualified immunity even while affidavit cannot be relied upon where it is

deciding that the action in question not referenced in the warrant: “[T]he

violates the Constitution. On the other issuing authority neither authorized nor

hand, the plaintiff need not show that found probable cause for an ‘all persons

there is a prior decision that is factually present’ warrant. This is clear from a

identical to the case at hand in order to reading of the warrant. The only reference

establish that a right was clearly to such a warrant appears in the affidavit;

established. “A right may be clearly the warrant itself does not appear to have

granted the request.” 631 A.2d at 1358.

12

What is significant is that the deficient -- i.e., in failing to particularize

officers can point to no precedent that the place to be searched or the things to be

allowed an unincorporated affidavit to seized -- that the executing officers cannot

expand a search warrant. Although there reasonably presume it to be valid.’” Groh,

are decisions that allow unincorporated 540 U.S. at , slip op. at 13 (quoting

affidavits to clarify or narrow overbroad Leon, 468 U.S. at 923). The flaw here

warrants, we have explained at was every bit as manifest as the omission

considerable length why these are a totally in the warrant in Groh.

different matter. This is not an arcane or

Finally, even if an exception to the

legalistic distinction, but a difference that

warrant requirement did apply, it is clear

goes to the heart of the constitutional

that the search of Jane and Mary Doe for

requirement that judges, and not police,

evidence had to be based on probable

authorize warrants. An officer may

cause, and not on a generalized concern

reasonably rely on a magistrate’s approval

that those present at a search might hide

of an overbroad warrant because the

evidence. That principle was established

officer normally should not be penalized

as early as 1979. Ybarra, 444 U.S. at 94-

for the magistrate’s mistake. See

96.

Massachusetts v. Sheppard, 468 U.S. 981,

990 (1984); U.S. v. Ninety-Two Thousand Searching Jane and Mary Doe for

Four Hundred Twenty-Two Dollars and evidence beyond the scope of the warrant

Fifty Seven Cents, 307 F.3d 137, 152 (3d and without probable cause violated their

Cir. 2002). But there is no reasonable clearly established Fourth Amendment

basis for an officer to exceed the scope of rights. Accordingly, we will affirm the

a warrant just because he asked for decision of the District Court rejecting

broader search authority in the affidavit. qualified immunity for the searches, and

In the latter instance, the officer has not remand the case for further proceedings

relied on, but has disregarded, the consistent with this opinion.

magistrate’s judgment.

Our decision is fully consistent

with the Supreme Court’s decision in

Groh. There, considering a warrant that

failed to specify items to be seized in a

house that was being searched, the Court

dismissed the contention that omission of

this description was not clearly

unconstitutional, or a good faith error.

Rather, the Court stated: “[A]s we

observed in the companion case to

Sheppard, ‘a warrant may be so facially

13

Doe v. Groody search warrant application sought

permission to search all occupants of the

No. 02-4532

premises. Indeed, the affidavit made this

request in three separate paragraphs.

Pa r a gr a ph 17, a f t e r a s k i n g f or

ALITO, Circuit Judge, dissenting:

authorization to search John Doe’s home

and car, added:

I would reverse the order of the

District Court and direct that summary

The search should also

judgment be entered in favor of the

include all occupants of the

defendants. First, the best reading of the

residence as the information

warrant is that it authorized the search of

developed shows that [John

any persons found on the premises.

Doe] has frequent visitors

Second, even if the warrant did not contain

t h a t p u r c h a s e

such authorization, a reasonable police

methamphetamine. These

officer could certainly have read the

persons may be on the

warrant as doing so, and therefore the

premises at the time of the

appellants are entitled to qualified

execution of the search

immunity.

warrant and may attempt to

conceal controlled

substances on their persons.

I.

App. 498a (emphasis added).

Search warrants are “normally

drafted by nonlawyers in the midst and

haste of a criminal investigation.” United Paragraph 20 reiterated that request:

States v. Ventresca, 380 U.S. 102, 108

(1965). Consequently, they are to be read

“in a commonsense and realistic fashion.” This application seeks

Id. Here, the “commonsense and realistic” permission to search all

reading is that the issuing magistrate occupants of the residence

intended to authorize a search of all the and their belongings to

occupants of the premises and that the p r e v e n t t h e r e m o v a l,

warrant did so. Five points are important concealment, or destruction

to keep in mind. of any evidence requested in

this warrant.

First, there is no doubt that the

And paragraph 21 repeated the

14

request a third time: warrant and was typed by one of those

officers. App. 348a. Since the officers

were seeking permission to search all

As a result of the occupants of the premises, they obviously

information developed, your intended for the draft warrant that they

affiant requests that a search submitted to the magistrate to authorize the

w a r r a n t f o r search of such persons.

methamphetamine and other

controlled substances, drug

paraphernalia, drug records, Fourth, the warrant expressly

monies, proof of incorporated the affidavit with respect to

residence/ownership, the issue that was most critical to the

documents, photographs, request to search all occupants, viz., the

and weapons be issued for issue of probable cause. While probable

618 Center St. Ashland, Pa., cause to search premises does not

the residence of [John Doe] necessarily provide probable cause to

and all occupants therein. search every person who is found on the

premises, see Ybarra v. Illinois, 444 U.S.

85 (1979), if there is probable cause to

App. 498a (emphasis added). believe that all of the persons found on the

premises possess on their persons either

contraband or evidence of a crime, there is

Second, the affidavit also clearly no reason why a warrant authorizing a

attempted to establish probable cause to search of all such persons should not be

search all occupants of the premises. The issued. In this case, as noted, the affidavit

two affiants, who had background and submitted in support of the warrant

training in drug cases, stated that, in their application claimed that there was

experience, drug dealers, when faced with probable cause to search all such persons,

“impending apprehension,” often give and the warrant expressly incorporated that

evidence to other persons present on the claim.

premises in the hope that “said persons

will not be subject to search when police

arrive” and that this will “prevent the Fifth, after the warrant and affidavit

discovery of said items.” See App. 494a. were reviewed by the District Attorney’s

office and presented to a magistrate, the

magistrate carefully reviewed these

Third, the warrant as drafted was

documents and signed the warrant without

intended to authorize a search of all

alteration.

persons on the premises. The warrant was

drafted by the officers who applied for the

15

Under these circumstances, the PREMISES AND / OR PERSONS TO BE

“commonsense and realistic” reading of SEARCHED.” App. 493a. In that box, the

the warrant is that it authorized a search of officers placed the name of John Doe,

all occupants of the premises. It seems followed by his race, sex, date of birth,

quite clear that the magistrate intended to hair and eye color, and Social Security

authorize a search of all occupants of the number. Id. The officers also included the

premises. As noted, the application address and a fairly detailed description of

repeatedly requested such authorization the premises. Id. This information more

and set out facts that the officers (and than filled the space allotted. Id.

presumably the District Attorney’s office)

regarded as establishing probable cause.

The warrant indisputably incorporated the At their depositions, both of the

affidavit with respect to the issue of officers who signed the affidavit explained

probable cause, and the magistrate signed why they did not note in the box in

the warrant without alteration. The only question that the warrant authorized a

reasonable inference is that the magistrate search of all occupants of the premises.

agreed with the affidavit that there was They stated that there simply was not room

probable cause to search all occupants of in that box and that the incorporation of

the premises and that the magistrate the affidavit into the warrant (which was

intended to authorize such a search. The noted in the box entitled “ PROBABLE

magistrate must have understood that the CAUSE BELIEF IS BASED ON THE FOLLOWING

officers, who had drafted the warrant, FACTS AND CIRCUMSTANCES” 10 ) was meant

believed that the warrant, if signed, would to provide a full description of the persons

give them authorization to carry out a to be searched.11

search of the scope specified in the

application, viz., a search of “all 10

occupants.” As a result, the magistrate The affidavit is also cross-

surely would not have signed the warrant referenced in the box entitled DATE OF

VIOLATIONS.” App. 498a.

without modification if the magistrate had

not wished to confer that authority. 11

Officer Schaeffer testified that

John Doe was mentioned in the box at

issue because he “was the target,” but

The majority, however, raises a

Officer Schaeffer added: “As you can see,

formal objection to the warrant. The

that box is filled. You can’t include

majority contends that the warrant

everything there.” App. 402a. See also id.

unambiguously limits the persons to be

at 403a. He stated that the affidavit was

searched to John Doe alone. In reaching

“part of the search warrant and we include

this conclusion, the majority relies on the

everything that we want in that affidavit of

entry that the officers placed in the box

probable cause . . . . It’s impossible to fit

entitled “ SPECIFIC DESCRIPTION OF

everything we want in these little boxes

16

For present purposes, however, the

majority attaches no significance to the

entry in the box concerning probable

they give us.” Id. at 402a-03a.

cause. The majority takes the position that

Officer Phillips gave a similar

the only relevant entry is the one in the box

explanation:

entitled “ SPECIFIC DESCRIPTION OF

Q. Okay. You’ll

PREMISES AND / OR PERSONS TO BE

agree with me, sir, that on

SEARCHED.” Because that entry does not

the face of the warrant it

refer to all occupants of the premises and

calls, under the heading

does not state that the affidavit is

“Specific Description of

incorporated for the purpose of specifying

Premises and/or Persons to

the persons to be searched, the majority

be Searched” the only

concludes that the warrant does not

individual named there is

authorize a search of all such persons. The

[John Doe], is that correct?

majority states that the “warrant has no

A. That is correct.

ambiguous . . . terms on its face” and that

And the reason for that is

it is therefore improper to look beyond the

there’s not enough room in

face of the warrant. Maj. Op. at 8.

that block to indicate every

possible name of

individuals who might be in

I believe that the majority’s analysis

the residence to be searched.

is flawed. First and most important, the

That’s why we extended

majority employs a technical and legalistic

into the probable cause

method of interpretation that is the

affidavit, just as the rest of

antithesis of the “commonsense and

the information is in the

realistic” approach that is appropriate.12

probable cause affidavit. It

would not fit on the face

sheet of this warrant. along with an explanation

Q. So it’s your of what “other occupants”

testimony that the only are, include visitors, family

reason that the words and members.

other, “and other occupants

of the residence” do not App. at 353a.

appear on the face of the

12

search warrant is there’s no The majority’s mistaken approach

room? is further exemplified by its suggestion

A. There’s no room that the affidavit does not actually state

to list all of the occupants that, in the experience of the affiants, drug

who may have been in the dealers “often hide drugs on family

residence at the time with, members and young children.” Maj. Op.

17

Second, the face of the warrant here does

not unambiguously restrict the persons to

be searched to John Doe alone. As

at 11. The pertinent paragraph of the

previously noted, the question whether

affidavit states:

occupants other than John Doe should be

searched was closely tied (if not identical)

This application seeks

to the question whether there was probable

permission to search all

cause to search such persons, and the face

occupants of the residence

of the warrant incorporated the affidavit

and their belongings to

with respect to the issue of probable cause.

prevent the removal,

This incorporation, at the very least,

concealment, or destruction

creates a sufficient ambiguity to permit

of any evidence requested in

consideration of the affidavit and the

this warrant. It is the

circumstances surrounding the application.

experience of your co-

affiants that drug dealers

often attempt to do so when For these reasons, I would hold that

faced with impending the warrant did in fact authorize a search

apprehension and may give of all persons on the premises, including

such evidence to persons Jane and Mary Doe.

who do not actually reside

or own/rent the premises.

This is done to prevent the The majority strives to justify its

discovery of said items in decision by invoking the Supreme Court’s

hopes that said persons will recent decision in Groh v. Ramirez, No.

not be subject to search 02-811(Sup. Ct. Feb. 24, 2004), but Groh

when police arrive. simply does not speak to the question that

divides this panel, i.e., the degree of

The commonsense reading of this technical precision that should be

paragraph is that, in the experience of the demanded in determining whether a

affiants, drug dealers, when they are about warrant adequately incorporates an

to be arrested, often give contraband or attached application or affidavit.

incriminating evidence to other persons

who are on the premises (“occupants”) in

the hope that these persons will not be In Groh, law enforcement officers

searched. The majority notes that this submitted an application for a warrant to

passage does not literally state that search a ranch for firearms, explosives,

“narcotics dealers often hide drugs on

family members and young children,” but

this is precisely the sort of technical, interpreting a search warrant or supporting

legalistic reading that is out of place in affidavit.

18

and records and later carried out a search warrant. Hence, we need

for these items, but the warrant did not not further explore the

state that a search for such items was matter of incorporation.

authorized and did not incorporate the

application. Id. at 2. In addition, when

the search was completed, the officers Id. at 6.

gave one of the owners of the ranch a copy

of the warrant, “but not a copy of the

application, which had been sealed.” Id. My disagreement with the majority

at 3 (emphasis added). The Court held that concerns the question whether the mode of

the warrant was defective because it did incorporation in this case was adequate,

not particularly describe the type of and Groh does not speak to this question.

evidence sought. Id. at 5. However, the Groh merely refers without elaboration to

Court was careful to distinguish the case “appropriate words of incorporation.” Slip

before it from a case in which a warrant Op. at 6. In my view, the appropriateness

incorporates another document that of “words of incorporation” is to be judged

contains such a specification. Id. at 5-6. by the “commonsense and realistic”

The Court wrote: standard that is generally to be used in

interpreting warrants. The majority,

We do not say that the

however, reads the warrant in this case

Fourth Amendment forbids

almost as if it were a contract subject to

a warrant from cross-

the doctrine of contra proferentum. Groh

referencing other

does not justify such an approach.

documents. Indeed, most

Courts of Appeals have held

that a court may construe a

II.

warrant with reference to a

supporting application or

affidavit if the warrant uses

Even if the warrant did not confer

a p p r o p r ia te w o r d s o f

such authorization, a reasonable officer

incorporation, and if the

certainly could have believed that it did,

s u p p o r t in g d o c u m e n t

and therefore the defendants’ motion for

accompanies the warrant. . .

summary judgment based on qualified

. . But in this case the

immunity should have been granted. See

warrant did not incorporate

Anderson v. Creighton, 483 U.S. 635, 640-

other documents by

41(1987). Qualified immunity “provides

reference, nor did either the

ample protection to all but the plainly

affidavit or the application

incompetent or those who knowingly

(which had been place under

violate the law.” Malley v. Briggs, 475

seal) accompany the

U.S. 335, 341 (1986). See also, e.g.,

19

Saucier v. Katz, 533 U.S. 194, 202 (2001). searching a child (in a proper manner) if a

The appellants in this case did not exhibit warrant has been issued and the warrant is

incompetence or a willingness to flout the not illegal on its face. Because the warrant

law. Instead, they reasonably concluded in this case authorized the searches that are

that the magistrate had authorized a search challenged – and because a reasonable

of all occupants of the premises where: (1) officer, in any event, certainly could have

that is what the application sought; (2) the thought that the warrant conferred such

affidavit asserted that there was probable authority – I would reverse.

cause for such a search; (3) the warrant

expressly incorporated the affidavit on the

issue of probable cause, (4) the language

of the warrant was drafted to confer

authorization to search all occupants, and

(4) the magistrate signed the warrant

without modification. In light of the

discussion of these points in part I of this

opinion, it is unnecessary to address them

further here.13

In sum, the District Court erred in

denying the defendants’ motion for

summary judgment. I share the majority’s

visceral dislike of the intrusive search of

John Doe’s young daughter, but it is a sad

fact that drug dealers sometimes use

children to carry out their business and to

avoid prosecution. I know of no legal

principle that bars an officer from

13

The plaintiffs argue that there was

no probable cause to search them, but

whether or not there was probable cause,

when a warrant is issued, officers who

execute the warrant are entitled to

qualified immunity unless "the warrant

application is so lacking in indicia of

probable cause as to render official belief

in its existence unreasonable." Malley v.

Briggs, 475 U.S. at 344-45. That high

standard is not met here.

20