Petition for Writ of Certiorari — Donaldson v. Lott

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Supreme Court, U.S

/ FILED

aull*. 516 OCT 13 2004

‘IN THE

Supreme Court of the United States

Leshia Donaldson, et al.,

Petitioners,

Leon Lott, Richland County Sheriff, et al.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Thomas C. Goldstein Pamela S. Karlan

Amy Howe (Counsel of Record)

GOLDSTEIN & HOWE, P.C. 559 Nathan Abbott Way

4607 Asbury PI., NW Stanford, CA 94305

Washington, DC 20016 (650) 725-4851

Francis T. Draine

Suite 303

2231 Devine St.

P.O. Box 5895

Columbia, SC 29250 October 13, 2004

ST Na ONE TE SE EA BR EAT BAROLO A REE IB RA EN

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Should this Court grant certiorari to resolve the

conflict between the Fourth Circuit and three other circuits

over whether Ybarra v. Illinois, 444 U.S. 85 (1979), clearly

established for purposes of qualified immunity that the Fourth

Amendment forbids the use of “all persons” warrants in the

absence of individualized probable cause?

2. Should this Court grant certiorari to resolve the

conflict among at least nine circuits over the relevance of out-

of-circuit precedent in the determination whether a

constitutional right is clearly established?

PARTIES TO THE PROCEEDINGS BELOW

In addition to the parties named in the caption, the

following parties appeared below and are petitioners here:

Latanya Owens, Tiffeny Owens, and William Clayton. The

following parties appeared below and are not petitioners here:

Destiny Owens and Gregory Owens. The following parties

appeared below and are respondents here: Geraldo

Maldonado, Jane Doe, and Richard Doe, Richland County

Deputy Sheriffs.

TABLE OF CONTENTS

QUESTIONS PRESENTED...............ccs-cesccsssscsscssosssescoesceesees. i

PARTIES TO THE PROCEEDINGS BELOW ..................... ii

Cs ee ee ill

i. Se ee ee aa V

PETITION FOR A WRIT OF CERTIORARI ....-ccccccccee-----... l

so oe stewie ata gd EE ET EEO DOT l

Race Li eR l

RELEVANT CONSTITUTIONAL AND

PREUO NI EUOOR TS POMP U UII oi occsstocaercosmicarecshamecc scene. l

sashes) a egy IEE ABATE OO eae 2

REASONS FOR GRANTING THE WRIT......cccccccccccoseoce-ose. 7

I. This Case Presents the Square Conflict Among the

Circuits Over Whether Ybarra Clearly Establishes

the Unconstitutionality of “All Persons” Warrants in

the Absence of Individualized Probable Cause. ............ 8

A. The Fourth Circuit’s Decision in This Case

Conflicts with the Ninth Circuit’s Holding That

Officers Who Execute An “All Persons” Warrant

in the Absence of Individualized Probable Cause

Are Not Entitled to Qualified Immunity. .................... 9

B. The Fourth Circuit’s Ruling Conflicts With the

Third and Fifth Circuits’ Holding That Ybarra

Clearly Established That “All Persons” Searches

Violate the Fourth Amendment in the Absence of

Individualized Probable Cause. ...........ccccccsccecsoeeee-... 11

C. The Fourth Circuit Erred in Concluding that

Ybarra Did Not Clearly Establish the

Unconstitutionality of Respondents’ Actions........... 14

D. This Case Would Resolve the Proper Test for

Determining When the Fourth Amendment

Permits the Use of “All Persons” Warrants.............. 18

II. This Court Should Grant Certiorari to Secure

Uniform Application of the Qualified Immunity

SOI siiasiebacsiitccesckicakan inci secaiaiaaba ciated ee heels 22

A. There Is a Split Among the Circuits Regarding the

Role of Out-of-Circuit Authority in the Qualified

PS Ti a vicesincithcnianinticninadbcnicissdilacbindabienltie 23

B. Qualified Immunity Is Unwarranted When Courts

of Persuasive Authority Agree on_ the

Unconstitutionality of a Defendant’s Conduct. ........ 26

C. This Case Is an Excellent Vehicle for Resolving

re i its cnccsniceiceisinaheeieedsccniesiaitaineiinciadetas 27

SE Riasiccdashichaaksiestcstiessnsiaciietitiadesitameansdibeiunitiadaeies 29

TABLE OF AUTHORITIES

Cases

African Trade & Info. Ctr., Inc. v. Abromaitis, 294

FD POS CAA BMD sciisss ins cshaisitlencistgpisiiniactiatiabssinten dees 24

Bergeron v. State, 583 So. 2d 790 (Fla. Dist. Ct. App.

EPH EP scnssasancsohsutnieinphabeubdeiabalisiicanislicmisibidh alletakesdulbtusaamals 21

Betts v. State, 920 P.2d 763 (Alaska Ct. App. 1996)............ 21

Bivens v. Six Unknown Fed. Narcotics Agents, 403

RETR, FED CUO FU pescissciishicideyninheinctGibuhenntindsduet iasintt emacs 29

Boyd v. Benton County, 374 F.3d 773 (CA9 2004)........ 24, 25

Brooks v. State, 593 So. 2d 97 (Ala. Crim. App.

RDP A ) anincniisnnissonansnashiibdideninaitbidesbadesshilsmosiuies ional seaman al 21

Buckley v. Rogerson, 133 F.3d 1125 (CA8 1998)........... 24, 25

Burgess v. Lowery, 201 F.3d 942 (CA7 2000) ...........0.c00000 28

Cleveland-Purdue v. Brutsche, 881 F.2d 427 (CA7

bj RE MEETS RE! APS Te OTN we 25, 26

Commonwealth v. Smith, 348 N.E.2d 101 (Mass.

BTU) scsinainsnsisnniihiiitespiauseldubstilanidiaia bce iiime sii 19, 20, 21

Devenpeck v. Alford, No. 03-710 (2004).......ccccccsccssseseseecees 22

Doe v. Groody, 361 F.3d 232 (CA3 2004), cert.

COI. siisiicincniciiaramisnssccphiininsiigms ina eista tesa eae 11,12

Groh v. Ramirez, 124 8. Ct. 1284 (2004)... cceeeeeeeeeee 12, 16

Johantgen v. Commonwealth, 571 S.W.2d 110 (Ky.

CR. FAR, TIPTIES snicpcicinsiccnisapriinpinealacsiitisiiadintcieaami tan aeasdd 21

Malley v. Briggs, 475 U.S. 335 (1986).......cccscsscsscssscssseecene 14

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)............ 29

Marks v. Clarke, 102 F.3d 1012 (CA9 1996)................ passim

McClendon v. City of Columbia, 305 F.3d 314 (CAS

SIAL) seins asstviniewsiciataipsaatigiinmnibimiiiadaainatess casita ces 24, 25

Michigan v. Summers, 452 U.S. 692 (1981).....cc.cccsccccssssceseeee 5

Moore v. Vega, 371 F.3d 110 (CA2 2004) ou... ceeseeeeeee 24

Morton v. Commonwealth, 434 S.E.2d 890 (Va. Ct.

AGP. TDI DS) ccsacrsnesscrssassioniniissinnissisiiiiaiimaaanataie ian all 21

People v. Jackson, 446 N.W.2d 891 (Mich. Ct. App.

1989), overruled on other grounds by People v.

Goldston, 682 N.W.2d 479 (Mich. 2004) .........ccccccccseeeeees 21

People v. Johnson, 805 P.2d 1156 (Colo. Ct. App.

EDIE) cccccccesessensucecssuniepsiiasbintsdebiidasmennntodebitnelingtnsansiipaaadamibie 21

People v. Nieves, 330 N.E.2d 26 (N.Y. 1975) .......cccccsseeeseees 20

People v. Reed, 559 N.E.2d 1169 (Ill. App. Ct. 1990)......... 21

People v. Tenney, 101 Cal. Rptr. 419 (Cal. Ct. App.

1972), overruled on other grounds by People v.

vr ee Fe 8) fe 8 Se eee 21

Peterson v. Jensen, 371 F.3d 1199 (CA10 2004)........... 24, 25

Saucier v. Katz, 533 U.S. 194 (2001) ............ccccceceeeees 5, 26, 27

State v. Allard, 674 A.2d 921 (Me. 1996) ..........cccccccccseseeeees 19

State v. Blevins, 968 P.2d 402 (Utah Ct. App. 1998) ........... 21

State v. Carter, 901 P.2d 335 (Wash. Ct. App. 1995).......... 21

State v. DeSimone, 288 A.2d 849 (N.J. 1972)...... 6, 18, 19, 22

State v. Hayes, 540 N.W.2d 1 (Wis. Ct. App. 1995)......21, 22

State v. Jamison, 482 N.W.2d 409 (lowa 1992)................0. 19

State v. Kinney, 698 N.E.2d 49 (Ohio 1998) .................. 19, 21

State v. Pecha, 407 N.W.2d 760 (Neb. 1987) ...............:00000 20

State v. Thomas, 540 N.W.2d 658 (lowa 1995) ................0+. 20

State v. Vandiver, 891 P.2d 350 (Kan. 1995)................. 19, 20

State v. Wynne, 552 N.W.2d 218 (Minn. 1996).................2.. 20

Larry ¥. Gabe, FFR UB. F Cl FG cccnssicsessanesenmetieeanmaiaaa 5

Thomas ex rel. Thomas v. Roberts, 323 F.3d 950

COAT QBGB) wcccesescsnasnressanscenseesacveneeneenneiinanianaannnnnnnanae 24

United States v. Lanier, 520 U.S. 259 (1997)............ccccceeeees 27

United States v. Shields, No. 98-3059, 1999 U.S.

App. LEXIS 2496 (CA10 Feb. 18, 1999) 0.0.0... ceceeeeeees 19

United States v. Stefonek, 179 F.3d 1030 (CA7 1999)......... 16

Walton v. City of Southfield, 995 F.2d 1331 (CA6

Vii

Williams v. Kaufman County, 352 F.3d 994 (CAS

y RENN Sah Ta GN NE Cas NEP NERO NT 11,12, 13

Wilson v. Layne, 526 U.S. 603 (1999) .......ccccccceccececeeeee passim

Wyatt v. Cole, 504 U.S. 158 (1992)..........ccccccccccseccecesecssssces 29

Ybarra v. Illinois, 444 U.S. 85 (1979) .o..cccccccccsescsceseeeeee passim

Statutes and Constitutional Provisions

Be Ups CH cin aitivisniditiciatintdaiiceciette ee so l

oly ERR er MRL nA Le 1,2,5

Sa SN INNIIEL SF ansissusienepininenitessindehniananieeididiuitaid passim

Other Authorities

Se SA Wiles Sn insiesthicarhcinipnscnniesetasiheieigntiaanadiadaac taba 19

PETITION FOR A WRIT OF CERTIORARI

Petitioners Leshia Donaldson, et ai., respectfully petition

for a writ of certiorari to review the judgment of the United

States Court of Appeals for the Fourth Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Fourth Circuit, Pet. App. 1a — 18a, is published at 372 F.3d

267. The opinion of the district court, Pet. App. 19a — 44a, is

unpublished.

JURISDICTION

The judgment of the court of appeals was entered on June

15, 2004. Chief Justice Rehnquist subsequently extended the

time to file this petition to and including October 13, 2004.

This Court has jurisdiction pursuant to 28 U.S.C. 1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Fourth Amendment to the United States Constitution

provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or

things to be seized.

42 U.S.C. 1983 provides, in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress

* * *

STATEMENT

This case presents important questions regarding an

investigatory tool that, although frequently employed, is a

stark violation of the Fourth Amendment. On the basis of an

“all persons” warrant, respondent police: officials searched

petitioners without any reason — much less probable cause —

to believe that any of them had engaged in criminal activity.

Petitioners then brought this action under 42 U.S.C. 1983.

The Fourth Circuit held that the searches were

unconstitutional. But it nonetheless held that respondents

were entitled to qualified immunity on the ground that

petitioners’ Fourth Amendment right to be free from such an

“all persons” search had not previously been “clearly

established.”

Certiorari should be granted to review that judgment and

to bring needed uniformity to the lower courts’ treatment of

cases involving “all persons” searches. The Fourth Circuit’s

decision indisputably conflicts with the Ninth Circuit’s

holding on indistinguishable facts that officers are not entitled

to qualified immunity. The Ninth Circuit held that a search

pursuant to such an “all persons” warrant was not merely

unconstitutional, but was so obviously controlled by this

Court’s decision in Ybarra v. Illinois, 444 U.S. 85 (1979),

that civil liability attached under Section 1983. Two other

circuits have similarly relied on Ybarra to deny qualified

immunity to officers who conducted “all persons” searches

without individualized probable cause. In deciding this case,

the Court would also resolve a long-standing conflict in the

lower courts over the test to apply in deciding the

constitutionality of “all persons” searches. Finally, this case

offers the Court an ideal vehicle to resolve a fundamental

question in qualified immunity law that has split the circuits:

what role does out-of-circuit authority play in determining

whether the law is “clearly established”?

1. In Ybarra v. Illinois, agents of the Illinois Bureau of

Investigations obtained a warrant to search a tavern for drugs.

The warrant was based on an informant’s statement that he

had observed drugs both on the person of a bartender and in a

drawer behind the bar. 444 U.S. at 87-88. In executing the

warrant, the officers searched not merely the premises but

also every patron present in the bar, including Ybarra. An

officer found heroin in Ybarra’s possession and Ybarra was

charged with unlawful possession of a controlled substance.

Id. at 88-89. :

This Court agreed with Ybarra that the search was

unconstitutional. It held that

a person’s mere propinquity to others independently

suspected of criminal activity does not, without more,

give rise to probable cause to search that person. * * *

Where the standard is probable cause, a search or

seizure of a person must be supported by probable

cause with respect to that person. This requirement

cannot be undercut or avoided by simply pointing to

the fact that coincidentally there exists probable cause

to search or seize another or to search the premises

where the person may happen to be.

Id. at 91 (emphasis added).

2. In this case, petitioners are residents of 1116 Tree

Street in Columbia, South Carolina, and other family

members. On June 8, 2000, respondent Maldonado, a

narcotics officer with the Richland County Sheriff's

department, received information from a_ confidential

informant alleging that he had seen a black male, in his late

teens or early twenties, selling cocaine at that address. Pet.

App. 2a. On the basis of this tip alone,' respondents sought

' Deputy Maldonado was later disciplined by the Sheriff for

failing to corroborate the informant’s information. C.A. J.A. 257.

and obtained a search warrant not merely for the residence,

but also for “all persons at the premise[s].” C.A. J.A. 248. In

obtaining the warrant, the officers relied solely on “Deputy

Maldonado’s experience in drug enforcement that subjects

present at the scene of illegal drug distribution commonly

have drugs in their possession.” Pet. App. 11la-12a (internal

alterations and quotation marks omitted).

The officers went to the house later that day. They found

there two young women, petitioners Latanya Owens and

Tiffeny Owens, along with Latanya Owens’s children, ages

one and three. /d. at 3a, 22a. Neither Latanya nor Tiffeny, of

course, fit the description of the young black male alleged to

have engaged in drug sales. But on the basis of the “all

persons” warrant, respondents nonetheless handcuffed

Latanya and Tiffeny, led them into a separate room, and strip-

searched them. /d. at 3a. Respondents found no drugs or

other incriminating material. Jd. at 4a.

Two other residents then returned home: petitioner

William Clayton, aged thirty-eight, and petitioner Leshia

Donaldson, owner of the residence and mother of Latanya and

Tiffeny Owens. /d. at 3a; J.A. 256. Again, neither of these

individuals fit the description of the young black male who

allegedly had engaged in drug sales, but again on the basis of

the “all persons” warrant, respondents searched Mr. Clayton

and Ms.:-Donaldson as well. See Pet. App. 3a-4a.

Respondents handcuffed and conducted an on-the-spot

patdown of petitioner Clayton — the only man — and took

petitioner Donaldson to be strip-searched in the same room

where they had previously taken the other female petitioners.

Id. at 3a. Once again, neither search unearthed any evidence

of any illegal activity. Jd. at 4a.”

> The officers admitted strip-searching the three female

petitioners, although they denied petitioners’ allegations that their

undergarments were removed. Pet. App. 3a. The factual dispute is

irrelevant to the legal questions presented by the petition because

Respondents subsequently completed their search of the

house. They found no evidence of either cocaine sales or any

other illegal activity. Jd. at 25a.

3. Petitioners filed individual suits in state court against

respondent Lott, the Richland County Sheriff: Deputy

Maldonado; and two then-unnamed officers who had

participated in the searches. Petitioners sought, among other

things, damages under 42 U.S.C. 1983 for the violation of

their Fourth Amendment rights. /d. at 4a, 25a.° Respondents

removed the cases to federal court, where they were

consolidated, and subsequently moved for summary judgment

on petitioners’ Fourth Amendment-based claims on the

ground of qualified immunity. /d. at 4a

Following the two-step qualified immunity analysis

prescribed by this Court, see Wilson v. Layne, 526 U.S. 603,

609 (1999); see also Saucier v. Katz, 533 U.S. 194, 200

(2001), the district court first found that respondents’ conduct

violated the Fourth Amendment under Ybarra. “(T]he ‘all

persons’ warrant in this case [was] unconstitutional based on

the teachings of Ybarra” because “it [did] not articulate

particularized probable cause to search any specific

individual” and “the connection between proximity to crime

and involvement in crime [was] too tenuous to support a

warrant as broad as the ‘all persons’ warrant of this case.”

Pet. App. 39a (citing Ybarra, 444 U.S. at 91) (emphasis in

under either account, petitioners were subject to an evidentiary

search.

> Petitioners do not challenge the right of the police to search

Physical premises without individualized probable cause as to each

individual on the premises, nor do they challenge the right of

officers to conduct appropriate protective searches (under the

circumstances set out in Terry v. Ohio, 392 U.S. 1 (1968), and

Michigan v. Summers, 452 U.S. 692 (1981)) of people present at a

premises search to ensure officer safety. Neither of those issues is

presented by this case, in which the challenged police action

involved intrusive evidentiary searches of individuals.

original and footnote omitted). Despite the district court’s

recognition of the necessary consequence of this Court’s

ruling in Ybarra, it nonetheless granted respondents’ motion

for summary judgment because, “[b]ased on the lack of

Supreme Court and Fourth Circuit precedent dealing directly

with ‘all persons’ warrants and the muddled line delineating

the constitutional and unconstitutional use of ‘all persons’

warrants, * * * the right to be free of unconstitutional ‘all

persons’ warrants was not sufficiently clear at the time of the

violation for the defendants to be stripped of qualified

immunity.” Jd. at 43a.

Petitioners appealed. The Fourth Circuit affirmed both

aspects of the district court’s holding. /d. at 2a. Regarding

the antecedent question of the constitutional violation, the

court of appeals agreed that petitioners had been subjected to

an unconstitutional search. The court of appeals noted the

overwhelming majority view, dating to the New Jersey

Supreme Court’s decision in State v. DeSimone, 288 A.2d

849, 854 (N.J. 1972), that “all persons warrants” are valid

only “as long as there is probable cause to believe that

everyone found on the premises being searched is involved in

the illegal activity and that evidence of the crime would be

found on their person.” Pet. App. 9a (emphasis in original).

Based on this standard, the court of appeals held that “Deputy

Maldonado was not given sufficient information by his

confidential informant and, in turn, did not supply the

magistrate information to establish probable cause that ‘all

persons’ at the residence were likely involved in illegal drug

transactions.” Jd. at 16a.

But as to respondents’ claims of qualified immunity, the

Fourth Circuit found that no controlling authority had clearly

established the merits of petitioners’ Fourth Amendment

claim because this Court had not squarely “addressed the

circumstances, if any, under which an ‘all persons’ provision

in a search warrant is constitutional.” /d. at 17a (citing

Ybarra, 444 U.S. at 92 n.4).

The court of appeals also considered whether there was a

“consensus of cases of persuasive authority’” on the issue.

Pet. App. 17a (quoting Wilson, 526 U.S. at 617). After citing

a few out-of-circuit cases — all but one of which had held that

the Fourth Amendment forbids “all persons” warrants unless

there is probable cause to believe that every person on the

premises is involved in illegal activity — the Fourth Circuit

concluded that because those cases articulated different legal

tests they “provide no clear view, let alone a consensus,

regarding what factors are most significant in deciding

whether sufficient probable cause exists to support the search

of ‘all persons’ found in a private residence being searched

for drugs.” Jd. at 18a. The court held that the absence of a

consensus on the relevant “factors” — despite the existence of

a consensus on the correct outcome on these recurring facts —

was sufficient to confer qualified immunity. : /bid.

This petition followed.

REASONS FOR GRANTING THE WRIT

This case presents two important circuit conflicts. The

first concerns whether police officers are entitled to qualified

immunity for the use of an “all persons” warrant — a

frequently employed police investigatory tool — to search a

person as to whom they have no individualized probable

cause. In the course of resolving that square conflict, this

Court would also eliminate the recurring disagreement among

the lower courts over how to determine when “all persons”

warrants comport with the Fourth Amendment. Uniform

application of the Fourth Amendment requires this Court’s

intervention.

The second conflict is the three-way split regarding the

proper role of out-of-circuit authority in the determination

whether a constitutional right is clearly established. That

conflict implicates the full breadth of constitutional claims in

which government officials invoke the defense of qualified

immunity.

Resolution of both conflicts is important for vindicating

the constitutional rights of innocent individuals. ‘The

continued frequent use by police of “all persons” warrants

creates an unacceptably high risk that such individuals will be

swept into broad police searches simply by virtue of their

location. When this occurs, a civil damages claim provides

the only possible recourse, and unjustified application of

qualified immunity eliminates their only remedy. Moreover,

few cases cleanly presenting this issue are likely to reach this

Court: the Fourth Circuit’s approach to the role of out-of-

circuit precedent is a substantial deterrent even to the filing of

a civil rights suit that turns on such authority for success. In

such cases, the plaintiff knows that her claim is doomed but

for the entirely hypothetical prospect of review years later in

this Court. When a case such as this one does reach this

Court, it provides an especially appropriate opportunity to

provide the lower courts with needed guidance.

I. This Case Presents the Square Conflict Among the

Circuits Over Whether Ybarra Clearly Establishes the

Unconstitutionality of “All Persons” Warrants in the

Absence of Individualized Probable Cause.

The Fourth Circuit’s decision cannot be reconciled with

either the holding of the Ninth Circuit that officers employing

“all persons” warrants without individualized probable cause

are not entitled to qualified immunity or the holdings of the

Third and Fifth Circuits that Ybarra clearly established that

officers must have individualized probable cause to search all

persons during a premises search.

A. The Fourth Circuit’s Decision in This Case

Conflicts with the Ninth Circuit’s Holding That

Officers Who Execute an “All Persons” Warrant

in the Absence of Individualized Probable Cause

Are Not Entitled to Qualified Immunity.

The Fourth Circuit’s decision to grant qualified immunity

in this case squarely conflicts with Ninth Circuit precedent.

In Marks v. Clarke, 102 F.3d 1012, 1029 (1996), the Ninth

Circuit held, on materially identical facts to these, that

officers who executed an “all persons” warrant in a private

residence were not entitled to qualified immunity for searches

conducted in the absence of individualized probable cause. In

Marks, police officers obtained a warrant to search two

residences and “any person present” as the result of a tip that

stolen property was being sold on the premises. /d. at 1019,

1028. (Although the officers had requested only a warrant to

search the premises, two specified individuals, and “any other

persons present ‘for officer safety,” id at 1019, the

magistrate issued a warrant permitting searches “of all

persons present on the premises for the purpose of obtaining

evidence,” id.) In executing the warrant, officers encountered

several women and children and searched each one. /d. at

1021-22. The officers could offer no justification for

searching everyone other than their belief that each house was

a “den of thieves” where contraband might be stashed on

anyone. /d. at 1029. While the premises search yielded large

amounts of cash and stolen property, the individual searches

turned up no additional evidence, and criminal charges were

filed against only four of the more than two dozen individuals

who had been searched. /d. at 1023. The people subjected to

the searches filed a Section 1983 lawsuit against the ‘officers

for violations of their Fourth Amendment rights. /d. at 1015.

The Ninth Circuit held that the district court properly

granted summary judgment “against those officers who

participated in the search of persons present at the premises

*** except those persons as to whom probable cause

existed.” Jd. at 1034 (emphasis omitted). It held that the

officers conducting those searches were not entitled to

qualified immunity because this Court’s decision in Ybarra v.

Illineis clearly established that such an “all persons” warrant

violates the Fourth Amendment “unless supported by

probable cause as to each individual present.” Jd. at 1027.

Moreover, Ybarra had clearly established that propinquity to

a crime scene, by itself, is insufficient to support a finding of

probable cause to search every individual at the scene. /d. at

1029. Thus, the Ninth Circuit concluded that the officers

“who conducted indiscriminate searches of all persons present

at the * * * residences failed to act in an objectively

reasonable manner, and are not entitled to qualified

immunity.” Jbid.

The Ninth Circuit acknowledged that a footnote in Ybarra

had left “open the question of the constitutional propriety of a

warrant that specifically authorized the search of unnamed

persons in a place.” /d. at 1027 (citing Ybarra, 444 U.S. 92

n.4). But the court explained that the question was left open

only insofar as the warrant was “supported by probable

cause” to believe that the unnamed individuals would be in

possession of items subject to seizure. /bid. When, as in

Marks, the officers lacked “probable cause as to each

individual present,” the question left open by Ybarra was not

implicated. /bid.

The Fourth Circuit’s ruling in this case is utterly

irreconcilable with the Ninth Circuit’s decision in Marks in

both reasoning and result. In both cases, the officers provided

no specific information to establish probable cause that the

individuals they sought authorization to search were involved

in illegal activities. See Pet. App. 16a; Marks, 102 F.3d at

1028. Rather, the officers’ articulated justification for each

“all persons” search was merely an assumption that anyone

near the location of the search would be likely to possess

contraband. See Pet. App. 1 1la-12a; Marks, 102 F.3d at 1029.

Both the Fourth and Ninth Circuits concluded that the

officers’ conduct violated the Fourth Amendment, but they

reached opposite results regarding the vital remedial question

of the availability of qualified immunity. Whereas the Ninth

Circuit concluded that Ybarra conclusively resolved the

constitutionality of “all persons” warrants, the Fourth Circuit

disagreed. Pet. App. 17a; Marks, 102 F.3d at 1027. The

irreconcilable readings of Ybarra by the two courts are even

more striking given their reliance on the identical language in

Ybarra’s footnote 4 to reach contrary conclusions. The

Fourth Circuit cited footnote 4 in Ybarra on two separate

occasions for the proposition that this Court had not yet

resolved “[w]hether, and under what circumstances, an ‘all

persons’ warrant is valid under the Fourth Amendment.” Pet.

App. 8a, 17a. In stark contrast, the Ninth Circuit quoted

footnote 4 of Ybarra to support its coriclusion that the

defendants were not entitled to qualified immunity because

Ybarra had clearly established that their conduct was

unconstitutional. Marks, 102 F.3d at 1027. Only this Court,

of course, can resolve the conflict over the proper

construction of Ybarra.

B. The Fourth Circuit’s Ruling Conflicts With the

Third and Fifth Circuits’ Holding That Ybarra

Clearly Established That “All Persons” Searches

Violate the Fourth Amendment in the Absence of

Individualized Probable Cause.

Certiorari is also warranted because the Fourth Circuit’s

decision conflicts with the holdings of the Third and Fifth

Circuits. Those courts have held that Ybarra precludes

qualified immunity for searches of all persons on the premises

of a suspected crime absent individualized suspicion. See

Doe v. Groody, 361 F.3d 232 (CA3 2004), cert. denied, a

U.S. (Oct. 4, 2004) (No. 04-85); Williams v. Kaufman

County, 352 F.3d 994 (CAS 2003). Both courts of appeals

correctly recognize that Ybarra clearly established that mere

propinquity to a crime scene is insufficient to establish

probable cause. See Groody, 361 F.3d at 244; Williams, 352

F.3d at 1005-06.

In Doe v. Groody, officers searched not only a residence

and an individual identified in a warrant, but also that

individual’s wife and daughter. 361 F.3d at 236-37.* In

response to the officers’ claim that they had probable cause

“to conduct the personal searches because of the ease with

which contraband could be concealed on those present in the

searched premises,” the Third Circuit declared that “that is

precisely the justification for a personal search that has been

rejected by the Supreme Court. [Ybarra, 444 U.S.] at 94-96.

Simply put, there is none of the kind of ‘particularized’

probable cause required for a search in circumstances such as

these. Jd. at 91.” 361 F.3d at 243. The Third Circuit thus

understood Ybarra to clearly establish as of 1979 “that the

search of [individuals] for evidence had to be based on

probable cause, and not on a generalized concern that those

present at a search might hide evidence.” /d. at 244. On that

basis, the Third Circuit not only held the underlying search

unconstitutional but also denied the officers qualified

immunity. /bid.

In Williams v. Kaufman County, officers obtained a search

warrant authorizing them to search a nightclub and to arrest

particular suspects named in the affidavit used to secure the

warrant. 352 F.3d at 1000. The affidavit named five

individuals suspected of dealing crack cocaine, and it also

stated that other persons whose identities were unknown to

the officers were suspects. /d. at 999. In executing the

warrant, the officers searched everyone on the premises on

the theory that there was probable cause “to believe that

The affidavit underlying the warrant in Groody sought

permission to search all persons at the residence. Groody, 361 F.3d

at 239. But because the warrant itself was limited to one particular

individual, the Third Circuit held that the warrant did not authorize

the searches. Groody, 361 F.3d at 239-43 (citing Groh v. Ramirez,

540 U.S. 551 (2004)).

everyone in there may have had drugs on them.” /d. at 1004

(internal quotation marks omitted). The Fifth Circuit

concluded that “Ybarra addressed a situation substantially

similar to the one here, and explicitly held that officers must

have * * * individualized probable cause to conduct a lawful

search.” /d. at 1006. Even though the circumstances of the

search were “more hazardous than the one conducted in

Ybarra” and made it “more likely that multiple persons would

be in possession of drugs,” the Fifth Circuit nevertheless held

that the facts were insufficient to create probable cause to

search each person. /bid. And the Fifth Circuit concluded

that Ybarra precluded granting the officers qualified

immunity because both Ybarra and subsequent circuit

precedent applying Ybarra gave fair notice to the officers that

their conduct was unconstitutional. /d. at 1007.

The Third and Fifth Circuits — like the Ninth Circuit —

would have rejected respondents’ claim of qualified

immunity. The Williams and Groody courts both held that

Ybarra clearly established that searches of persons must be

supported by individualized probable cause, which does not

arise from mere propinquity to a suspected crime scene. In

Groody, Williams, and the instant case, the officers lacked

individualized suspicion to search the plaintiffs.’ Just as the

officers in Groody and Williams attempted to justify their “all

persons” searches based on the likelihood that anyone near a

place where drug deals allegedly occurred might conceal

drugs on her person, the officers who searched petitioners

relied solely on “Deputy Maldonado’s experience in drug

* Indeed, none of petitioners even remotely matched the

description Deputy Maldonado’s informant had given of the person

allegedly selling drugs from petitioners’ house. As the district

court concluded, “on the facts of this case, where the informant

reported seeing ‘a black male’ dispensing contraband, there was no

probable cause to strip search the females who were present at the

scene, or those who happened upon the scene as the search was in

progress.” Pet. App. 30a.

enforcement * * * that subjects present at the scene of an

illegal drug distribution * * * commonly have drugs in their

possession.” Pet. App. 1 1la-12a (internal quotation marks and

alterations omitted). The Third and Fifth Circuits correctly

held that Ybarra clearly established the unconstitutionality of

such searches.

Williams and Groody cannot be distinguished on the

ground that they involved an “all persons” search but did not

involve an “all persons” warrant. The presence or absence of

a warrant does not change the question whether probable

cause exists. Nor is it relevant to the qualified immunity

analysis. As this Court held in Malley v. Briggs, if “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

*** the officer’s application for the warrant was not

objectively reasonable” and he is not entitled to qualified

immunity. 475 U.S. 335, 345 (1986). The fact that

respondents secured a warrant without having probable cause

— the issue resolved by Ybarra, which held, as a matter of

law, that mere propinquity cannot establish probable cause — .

thus provides no defense to this Section 1983 action.

The Fourth Circuit’s decision in this case thus conflicts

with the position taken by the three other circuits to have

squarely addressed the question whether police officers who

conduct “all persons” searches without. individualized

probable cause are nonetheless entitled to qualified immunity.

This Court should grant certiorari to resolve that recurring

conflict.

C. The Fourth Circuit Erred in Concluding that

Ybarra Did Not Clearly’ Establish the

Unconstitutionality of Respondents’ Actions.

The Third, Fifth, and Ninth Circuits’ understanding of

Ybarra is correct; the Fourth Circuit’s unique reading is

wrong. Ybarra clearly established that the Fourth

Amendment prohibits “all persons” searches unsupported by

individualized probable cause as to each person being

searched. In particular, Ybarra plainly held that probable

cause cannot be shown “by simply pointing to the fact that

coincidentally there exists probable cause to search or seize

another or to search the premises where the person may

happen to be. The Fourth and the Fourteenth Amendments

protect the ‘legitimate expectations of privacy’ of persons, not

places.” 444 U.S. at 91 (citations omitted).

No reasonable officer could read Ybarra and conclude

that he was entitled to seek an “all persons” warrant without

providing any individualized basis to believe all persons on

the premises to be searched were engaged in illegal activity.

Whether an officer is preparing an affidavit seeking an “all

persons” warrant, executing a warrant that authorizes him to

search only enumerated individuals or a particular place, or

deciding to conduct a warrantless search, he must ask exactly

the same question: is there probable cause with respect to the

particular individuals he seeks to search?

Consider a hypothetical situation in which an officer

learns from an informant that an individual, Adam, made a

drug sale from a residence the night before, and, incidentally,

that living with Adam are three other persons: Barbara,

Cathy, and Donna. In no way does the informant implicate

Adam’s three roommates in the drug sale. Drawing from his

experience, the officer believes the roommates’ mere

propinquity to Adam makes it likely that they will have drugs

in their possession. But this Court clearly established in

Ybarra that such a belief is insufficient: “a person’s mere

propinquity to others independently suspected of criminal

activity does not, without more, give rise to probable cause to

search that person.” 444 U.S. at 91. Thus, if the officer were

to submit an affidavit specifically naming all four roommates

and requesting the authority to search their persons, he would

certainly run afoul of Ybarra. Likewise, he could not enter

the residence under the authority of a valid warrant

authorizing him to search Adam and to search the house, and

then proceed to conduct an evidentiary search of the three

women without any independent probable cause.

The Fourth Circuit derived its novel reading of Ybarra

principally from a serious misreading of the last sentence of a

single footnote in this Court’s opinion. There, the Court

wrote that “we need not consider situations where the warrant

itself authorizes the search of unnamed persons in a place and

is supported by probable cause to believe that persons who

will be in the place at the time of the search will be in

possession of illegal drugs.” 444 U.S. at 92 n.4. The court of

appeals read this sentence broadly to leave unresolved

whether “all persons” warrants unsupported by particularized

probable cause nonetheless comport with the Fourth

Amendment. Pet. App. 8a, 17a. That reading is seriously

flawed.

The linchpin of the warrants hypothesized in the Ybarra

footnote’s last sentence is that the searches would be

“supported by probable cause.” Ybarra, 444 U.S. 92 n.4.

(emphasis added). And Ybarra squarely holds that “[w]here

the standard is probable cause, a search or seizure of a person

must be supported by probable cause particularized with

respect to that person.” Jd. at 91. The Fourth Circuit,

however, implausibly read Ybarra to leave open the

constitutionality of warrants that were not supported by

probable cause particularized with respect to the persons

being searched. The Fourth Circuit’s reading thus renders

meaningless the very constitutional right this Court

articulated in Ybarra. Moreover, by focusing only on the

last sentence instead of the entire footnote, the Fourth Circuit

failed to see that the footnote was actually addressing issues

concerning the particularity of a warrant’s text, not the

underlying probable cause standard. See Groh v. Ramirez,

124 S. Ct. 1284, 1290 (2004) (“The Fourth Amendment

requires that the warrant particularly describe the things to be

seized.” (quoting United States v. Stefonek, 179 F.3d 1030,

1033 (CA7 1999)) (emphasis omitted)). Noting the

unconstitutionality of open-ended warrants, the footnote

emphasized that officers executing warrants cannot

reasonably read them to provide carte blanche to search every

person on the premises:

The Fourth Amendment directs that “no Warrants

Shall issue, but upon probable cause * * * and

particularly describing the place to be searched, and

the persons or things to be seized.” Thus, “open-

ended” or “general” warrants are constitutionally

prohibited. It follows that a warrant to search a place

cannot normally be construed to authorize the search

of each individual in that place. The warrant for the

Aurora Tap Tavern provided no basis for departing

from this general rule.

Ybarra, 444 U.S. at 92 n4 (internal citations omitted,

emphasis added, and ellipses in original). |

Consequently, and as the Ninth “Circuit correctly

concluded in Marks, the footnote in Ybarra does not leave

open the possibility that officers applying for “all persons”

warrants can be relieved of the requirement to provide

particularized probable cause to search all individuals as well

as a particular premises. Rather, the footnote reserved the

narrow question whether a warrant that does not set out by

name the individuals to be searched can nonetheless satisfy

the Fourth Amendment because it explains with

constitutionally adequate particularity why there is probable

cause to search the class of people described. See Marks, 102

F.3d at 1027 (“[T]he Court [held open the question of the

constitutionality of “all persons” warrants] only to the extent

that such a warrant is ‘supported by probable cause to believe

that persons who will be in the place at the time of the search

will be in possession of [items subject to seizure].’” (citing

Ybarra, 444 U.S. at 92 n.4) (second alteration in original)).

Certiorari should be granted because only this Court can

correct the Fourth Circuit’s erroneous interpretation of

Ybarra.

D. This Case Would Resolve the Proper Test for

Determining When the Fourth Amendment

Permits the Use of “All Persons” Warrants.

In affording respondents qualified immunity, the Fourth

Circuit reasoned that various courts of appeals and state

supreme courts have adopted different approaches to deciding

the underlying Fourth Amendment question of when “all

persons” warrants are constitutional. See Pet. App. 17a-18a.

For reasons petitioners explain infra Part II.B, the differences

in how those courts have articulated the Fourth Amendment

standard cannot justify the Fourth Circuit’s grant of qualified

immunity in this case. Nonetheless, the divergent approaches

to how the constitutionality of “all persons” warrants ought to

be analyzed creates substantial uncertainty with respect to this

frequently used practice and may result in significant numbers

of unremedied constitutional violations. Under this Court’s

qualified immunity jurisprudence, this case provides an ideal

vehicle for bringing uniformity to this area, because the first

step of the Court’s analysis requires it to confirm that

petitioners’ constitutional rights were in fact violated. See

Wilson v. Layne, 526 U.S. 603, 609 (1999) (“Deciding the

constitutional question before addressing the qualified

immunity question also promotes clarity in the legal standards

for official conduct, to the benefit of both the officers and the

general public.”). The Court’s ruling in this case would

therefore bring uniformity to the conflicting formulations that

now exist for determining the constitutionality of “all

persons” warrants. As is obvious from the many opinions of

the dozens of courts to have addressed the issue (see infra at

19-21), the proper standard for evaluating the constitutionality

of “all persons” warrants is an important question for this

Court to resolve.

All of the federal courts of appeals and state supreme

courts to have addressed the question follow some variant of

the rule announced long ago by the New Jersey Supreme

Court in State v. De Simone, which permits “all persons”

warrants only when there is some particularized reason to

believe that “everyone present is a party to the offense.” 288

A.2d 849, 850 (1972). As an example of the rare “all

persons” warrant that would satisfy the probable cause

requirement, the De Simone court cited search warrants

seeking evidence of an illegal gambling ring being “operated

in a manhole or a barn,” in which the “place is so limited and

the illegal operation so overt” that anyone found at the

premises was likely to be involved in the criminal activity

there. Jbid. By contrast, the De Simone court explained,

mere probable cause to believe that “lottery slips are [being]

sold in a department store or an industrial plant” “obviously

would not justify a warrant to search every person on the

premises.” Ibid.

Two federal courts of appeals (including the Fourth

Circuit in this case) and three state supreme courts (including

New Jersey itself) have explicitly adopted the De Simone

standard. See Pet. App. lla; Marks, 102 F.3d at 1029:

Commonwealth v. Smith, 348 N.E.2d 101, 105-07 (Mass.

1976); State v. Kinney, 698 N.E.2d 49, 54 (Ohio 1998).° Six

other state supreme courts apply variants of the requirement

that “all persons” warrants be based on particularized or

individualized probable cause.’

° The Tenth Circuit has also adopted the De Simone standard in

an unpublished opinion. See United States v. Shields, No. 98-3059,

1999 U.S. App. LEXIS 2496, at **5-8 (CA10 Feb. 18, 1999).

Unpublished Tenth Circuit decisions are nonbinding but may be

cited as persuasive authority on a “material issue that has not yet

been addressed in a published opinion.” 10th Cir. R. 36.3.

” See State v. Jamison, 482 N.W.2d 409, 412 (lowa 1992)

(“Where a warrant calls for the search of multiple places or

persons, probable cause must exist as to each location or person

sought to be searched under authority of the warrant.”); State v.

Vandiver, 891 P.2d 350, 357 (Kan. 1995) (“{T]he affidavit

[requesting an all-persons warrant] must contain facts sufficient for

the issuing magistrate to believe that the premises are confined to

ie ee ee on ee ee ee ee) eee, ee eee ———e —

Although all of these courts agree on the central principle

of individualized probable cause announced by this Court in

Ybarra, they disagree in important ways on the precise

showing required to issue an “all persons” warrant.’ This

case presents the opportunity to resolve that disagreement.

ongoing illegal activity and that every person within the orbit of the

search possesses the items sought by the warrant.”); State v. Allard,

674 A.2d 921, 923 (Me. 1996) (“[S]ufficient particularity in the

probable cause sense * * * [is] whether the information supplied

the magistrate supports the conclusion that it is probable anyone in

the described place when the warrant is executed is involved in the

criminal activity in such a way as to have evidence thereof on his

person.”); State v. Wynne, 552 N.W.2d 218, 221 (Minn. 1996)

(“[W]hether the information supplied the magistrate supports the

conclusion that it is probable anyone in the described place when

the warrant is executed is involved in the criminal activity in such a

way as to have evidence thereof on his person.”); State v. Pecha,

407 N.W.2d 760, 765 (Neb. 1987) (“[W]hether the information

supplied the magistrate supports the conclusion that it is probable

anyone in the described place when the warrant is executed is

involved in the criminal activity in such a way as to have evidence

thereof on his person.”); People v. Nieves, 330 N.E.2d 26, 32 (N.Y.

1975) (“The sufficiency of the description in this case will hinge in

part on whether there was probable cause to believe that each and

every occupant of the El Parador at any time of day possessed the

policy slips and gambling records sought under the warrant.”).

® See, e.g, Vandiver, 891 P.2d at 357 (holding that “the

affidavit must contain facts sufficient for the issuing magistrate to

believe that the premises are confined to ongoing illegal activity”);

State v. Thomas, 540 N.W.2d 658, 664 (Iowa 1995) (holding that

the affidavit must demonstrate “the character of the premises,

including its location, size, and public or private character; the

nature of the illegal conduct at issue; the number and behavior of

persons expected to be present when the warrant is to be executed;

whether any persons unconnected with the alleged illegal activity

have been seen on the premises; and the precise area and time in

which the alleged activity is to take place”); Nieves, 330 N.E.2d at

34 (same as Thomas); Smith, 348 N.E.2d at 107 (holding that

There is further disagreement among the _ state

intermediate courts of appeals. One set of courts holds that

“all persons” warrants are per se unconstitutional.’ Other

intermediate state courts have adopted essentially the De

Simone approach, holding that the Fourth Amendment

requires individualized probable cause. Finally, a single

intermediate state court has adopted a rule under which

respondents’ conduct was constitutional. See State v. Hayes,

“several facts are of particular relevance: the premises or area to be

searched are small, confined and private; the nature of the criminal

activity is such that the participants (in general) constantly shift or

change so that it is, practically, impossible for the police to predict

that any specific person or persons will be on the premises at any

given time; and the items specifically described in the warrant as

the target of the search are of a size or kind which renders them

easily and likely to be concealed on the person”); Kinney, 698

N.E.2d at 57 (holding that affidavit must “delineate the character of

the premises, * * * the nature of the illegal activity believed to be

conducted at the location, the number and behavior of persons

Observed to have been present during the times of day or night

when the warrant is sought to be executedf, and] * * * whether any

person apparently unconnected with the illegal activity has been

seen at the premises”).

” See People v. Tenney, 101 Cal. Rptr. 419, 423 (Cal. Ct. App.

1972), overruled on other grounds by People v. Leib, 548 P.2d

1105 (Cal. 1976); Johantgen v. Commonwealth, 571 S.W.2d 110,

111-12 (Ky. Ct. App. 1978).

'° See Brooks v. State, 593 So. 2d 97, 98-99 (Ala. Crim. App.

1991); Betts v. State, 920 P.2d 763, 764 (Alaska Ct. App. 1996);

People v. Johnson, 805 P.2d 1156, 1159-61 (Colo. Ct. App. 1990);

Bergeron v. State, 583 So.2d 790, 791 (Fla. Dist. Ct. App. 1991);

People v. Reed, 559 N.E.2d 1169, 1171-72 (Ill. App. Ct. 1990);

People v. Jackson, 446 N.W.2d 891, 893 (Mich. Ct. App. 1989),

overruled on other grounds by People v. Goldston, 682 N.W.2d 479

(Mich. 2004); State v. Blevins, 968 P.2d 402, 403 (Utah Ct. App.

1998); Morton v. Commonwealth, 434 S.E.2d 890, 891-92 (Va. Ct.

App. 1993); State v. Carter, 901 P.2d 335, 337-39 (Wash. Ct. App.

1995).

540 N.W.2d 1 (Wis. Ct. App. 1995) (upholding an “all

persons” warrant supported only by an officer’s belief that

persons near drug sales generally possess drugs themselves).

As these cases attest, police departments around the country

continue to use “all persons” warrants in a wide variety of

circumstances. By granting certiorari and applying the two-

step Wilson analysis, this Court would resolve the conflict

over when — if at all — this frequently employed law-

enforcement tool is in fact consistent with the Fourth

Amendment.

II. This Court Should Grant Certiorari to Secure

Uniform Application of the Qualified Immunity

Doctrine.

If this Court concludes that Ybarra itself does not clearly

establish the unconstitutionality of respondents’ actions, the

Court will then need to consider whether petitioners’ rights

were nonetheless clearly established by other judicial

authority, such as the longstanding, widespread line of

authority stemming from the analysis first articulated by the

New Jersey Supreme Court in State v. DeSimone, 288 A.2d

849 (N.J. 1972). In so doing, the Court would resolve a

significant conflict among the circuits regarding the proper

role of out-of-circuit authority in determining whether law is

clearly established for purposes of qualified immunity. '!

'' This issue differs from the second question presented by No.

03-710, Devenpeck v. Alford, cert. granted, 124 S. Ct. 2014 (2004).

The petitioners in Devenpeck argue simply that the Ninth Circuit

failed to recognize that “conflicting precedent” from other circuits,

Pet. Br. at 31, as well as contradictory precedent from state

supreme courts within the Ninth Circuit, see id. at 28-29, undercut

any claim that the “closely related offense doctrine” constituted

clearly established law. This case raises an anterior question: what

is the relevance of out-of-circuit precedent that is entirely

consistent on the underlying question of constitutionality with

respect to whether law is clearly established? Thus, the reasons for

granting this petition are largely independent of Devenpeck, which

The Fourth Circuit’s grant of qualified immunity,

premised upon the fact that out-of-circuit authorities apply

different legal. tests to “all persons” warrants, squarely

conflicts with the qualified immunity methodologies

employed in at least seven other circuits. Six circuits would

have denied respondents qualified immunity because, despite

the fact that out-of-circuit authorities articulate different tests,

those tests would all have led to the conclusion that

respondents’ conduct here was unconstitutional. On the other

hand, the Eleventh Circuit (and possibly the Second Circuit)

would refuse to consider out-of-circuit authority at all in

determining whether a constitutional right is clearly

established. This case provides the ideal vehicle to establish a

uniform rule among the circuits to ensure consistent

protection of civil rights.

A. There Is a Split Among the Circuits Regarding

the Role of Out-of-Circuit Authority in the

Qualified Immunity Analysis.

After concluding that there was no direct authority on

point, the Fourth Circuit looked for a “consensus of cases of

persuasive authority’” that might nevertheless Clearly

establish petitioners’ Fourth Amendment right. Pet. App. 17a

(quoting Wilson, 526 U.S. at 617). The court of appeals

concluded that, because out-of-circuit authorities disagreed on

“what factors are most significant” in determining the

existence of probable cause for an “all persons” warrant, such

a consensus did not exist. Pet. App. 18a. It reached this

conclusion notwithstanding _ that respondents’ conduct

violated the Fourth Amendment under the test adopted by

every circuit and every state supreme court and would be

sustained as lawful only by a single intermediate state court of

does not address the questions whether “all persons” warrants and

searches without particularized probable cause are unconstitutional

and whether their unconstitutionality was clearly established at the

time petitioners in this case were searched.

appeal. See supra Part I.D. The Fourth Circuit’s

methodology conflicts with the methodology applied in other

circuits.

First, there is a clear split among the courts of appeals on

whether persuasive authority from other circuits is relevant at

all in analyzing whether an official is entitled to qualified

immunity. The Eleventh Circuit categorically refuses to look

to out-of-circuit authority on questions of qualified immunity.

See Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 955

(CA11 2003) (“As we have stated, only Supreme Court cases,

Eleventh Circuit caselaw, and Georgia Supreme Court

caselaw can ‘clearly establish’ law in this circuit.” (citations

omitted)). The Second Circuit has recently adopted the same

approach, though there is also prior circuit authority taking

the opposite view. See Moore v. Vega, 371 F.3d 110, 114

(CA2 2004) (“Only Supreme Court and Second Circuit

precedent existing at the time of the alleged violation is

relevant in deciding whether a right is clearly established.”);

African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355,

361 (CA2 2002) (noting that “our decisions send conflicting

signals” on this issue).

In contrast, seven circuits (including the Fourth) agree

that persuasive out-of-circuit authority can, under at least

some circumstances, clearly establish a constitutional right.

See Pet. App. 17a; Boyd v. Benton County, 374 F.3d 773, 781

(CA9 2004) (“[I]n the absence of binding precedent, we look

to whatever decisional law is available to ascertain whether

the law is clearly established for qualified immunity purposes

* * *”) (quotation marks and citation omitted); Peterson v.

Jensen, 371 F.3d 1199, 1202 (CA10 2004) (“A right is clearly

established * * * if the clearly established weight of authority

from other circuits found a constitutional violation from

similar actions.”) (quotation marks and citations omitted);

McClendon v. City of Columbia, 305 F.3d 314, 331 (CAS

2002) (looking to “cases from our sister circuits” to determine

whether the relevant law was clearly established); Buckley v.

Rogerson, 133 F.3d 1125, 1129 (CA8 1998) (“In the absence

of binding precedent, a court should look to all available

decisional law, including decisions of state courts, other

circuits and district courts.”); Walton v. City of Southfield,

995 F.2d 1331, 1336 (CA6 1993) (“In an extraordinary case,

it may be possible for the decisions of other courts to clearly

establish a principle of law.”); Cleveland-Purdue v. Brutsche,

881 F.2d 427, 431 (CA7 1989) (stating that “[iJn the absence

of a controlling precedent” the court would “look to all

relevant caselaw” in determining whether the law was clearly

established).

Second, even among the circuits that do look to persuasive

——authority, there is a split regarding how such authority should

be used. As noted supra, the Fourth Circuit in this case held

that there was no consensus as to whether the

unconstitutionality of respondents’ actions was clearly

established because courts of persuasive authority applied

different legal tests to “all persons” warrants.

The other six circuits that consider out-of-circuit authority

conduct a very different inquiry. Those courts look not at

what legal iest the other circuits apply but at what the

outcome of the case would be in other circuits. See Boyd, 374

F.3d at 781 (“[W]e must ask whether, despite the absence of

binding precedent, there was sufficient non-binding authority

to place the officers on notice that using a flash-bang in these

circumstances would be excessive.”) (emphasis added);

Peterson, 371 F.3d at 1202 (for law to be clearly established

by either binding or persuasive authority, “the contours of the

right must be sufficiently clear that a reasonable official

would understand that what he is doing violates the right’)

(emphasis added); McClendon, 305 F.3d at 331 (stating the

issue in the case as whether persuasive authority “provide[s] a

reasonable officer in Detective Carney’s position with fair

warning that providing Loftin with a gun would violate

McClendon’s rights”); Buckley, 133 F.3d at 1129 (looking “to

the state of the decisional law at the time in question to

determine whether a reasonable person in Loffelholz’s

position would have known that his conduct would violate

Buckley’s Eighth or Fourteenth Amendment rights”)

(emphasis added); Walton, 995 F.2d at 1336 (persuasive cases

can clearly establish a right if they “both point unmistakably

to the unconstitutionality of the conduct complained of and be

so clearly foreshadowed by applicable direct authority as to

leave no doubt in the mind of the reasonable officer that his

conduct, if challenged on constitutional grounds, would be

found wanting”) (emphasis added); Cleveland-Purdue, 881

F.2d at 431 (“[W]e look to all relevant caselaw in an effort to

determine whether at the time of the alleged acts a sufficient

consensus had been reached indicating that the official’s

conduct was unlawful.”) (emphasis added).

This case starkly demonstrates how these two

methodologies lead to different results. As petitioners have

explained, supra Part 1.D., federal courts of appeals and state

supreme courts differ in the factors they consider (and what

weight to give them) in deciding whether probable cause

exists to search “all persons.” Yet, as the discussion supra

also highlighted, all of these courts would nonetheless agree

that respondents’ conduct here was unconstitutional. Thus,

although the Fourth Circuit’s approach to determining

whether the law was clearly established led it to grant

qualified immunity, the other six circuits that look to out-of-

circuit precedent would have reached the opposite result and

concluded that petitioners’ rights were clearly established.

Certiorari should be granted to resolve that conflict.

B. Qualified Immunity Is Unwarranted When

Courts of Persuasive Authority Agree on the

Unconstitutionality of a Defendant’s Conduct.

Certiorari is also warranted because the methodology

employed by the Fourth Circuit in this case — focusing on

disagreement in the different articulated legal tests other

courts employ for “all persons” warrants — is incorrect. As

this Court explained in Saucier v. Katz: “[t]he relevant,

dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

533 U.S: 194, 202 (2001) (citing Wilson, 526 U.S. at 615)

(emphasis added). By ignoring this rule, the Fourth Circuit

arbitrarily created ambiguity where none existed. This Court

has also indicated that the Eleventh and Second Circuits are

incorrect to ignore out-of-circuit authority altogether. In

United States v. Lanier, this Court held persuasive authority

sufficient to establish “fair warning” in criminal civil rights

proceedings largely by analogy to its qualified immunity

precedents. See 520 U.S. 259, 268-70 (1997). “Although

* * * disparate decisions in various Circuits might leave the

law insufficiently certain even on a point widely considered,

such a circumstance may be taken into account in deciding

whether the warning is fair enough, without any need for a

categorical rule that decisions of the Courts of Appeals and

other courts are inadequate as a matter of law to provide it.”

Id. at 269. Two years later, Wilson upheld a grant of qualified

immunity but indicated that a different result would have

been reached had petitioners “identified a consensus of cases

of persuasive authority such that a reasonable officer could

not have believed that his actions were lawful.” 526 U.S.

603, 617 (1999).

By granting certiorari here, this Court can assure uniform

application of the correct rule even in the circuits that have

thus far resisted it.

C. This Case Is an Excellent Vehicle for Resolving

the Circuit Split.

The near-universal agreement among the on-point

persuasive authorities as to the unconstitutionality of

respondents’ conduct makes this case an ideal vehicle for

resolving the role of out-of-circuit authority in the qualified

immunity determination. First, it is indisputable that the

conflict over the appropriate qualified immunity standard is

outcome determinative here. Petitioners could hardly have a

better case under the majority rule, yet they lost below, just as

they would have in the Eleventh Circuit (and likely in the

Second Circuit as well). They would have prevailed in the

remaining circuits.

Second, petitioners’ Fourth Amendment claim is

obviously exceedingly strong on the merits. (Indeed, both

courts below squarely held that the “all persons” search in this

case was unconstitutional.) Thus, it is highly unlikely that

this Court’s consideration of the second Wilson prong will be

mooted by a failure to satisfy the first - ie, by a

determination by this Court that the officers’ search of “all

persons” absent any particularized suspicion, much less

individualized probable cause, did not violate petitioners’

Fourth Amendment rights.

The Court should take this unique opportunity to resolve

the questions presented because cases that clearly present

these important and recurring questions are generally unlikely

to proceed through the appellate process. In the Eleventh

Circuit (and likely the Second as well), it would be foolhardy

for a plaintiff even to file a Section 1983 damages action

without the benefit of controlling circuit authority: even if the

court agrees that the plaintiff's constitutional rights were

violated, recovery of damages would be impossible and the

suit worthless. As the Seventh Circuit explained, “[t]o rule

that until the Supreme Court has spoken, no right of litigants

in this circuit can be deemed established before we have

decided the issue would discourage anyone from being the

first to bring a damages suit in this court; he would be certain

to be unable to obtain any damages.” Burgess v. Lowery, 201

F.3d 942, 945 (CA7 2000) (Posner, C.J.) (emphasis in

original). Alternatively, for a case such as this one to arise in

one of the majority-rule circuits, a state officer would not

merely have to commit a constitutional tort in clear

contravention of established authority, but also implausibly

refuse to settle the case in order to challenge that circuit’s

qualified immunity methodology. The fact that this circuit

split most often plays itself out in such unreviewable ways

counsels strongly in favor of granting certiorari here.

Certiorari is also warranted because the question of how

to assess whether law is clearly established for purposes of

qualified immunity is tremendously important to the

vindication of constitutional rights. Both Congress and this

Court have emphasized the vital importance of citizens

having the ability to obtain recovery when their constitutional

rights are violated by government action. See Wyatt v.

Cole, 504 U.S. 158, 161 (1992) (discussing the deterrent and

compensatory purposes behind Congress’s enactment of

Section 1983); Bivens v. Six Unknown Fed. Narcotics Agents,

403 U.S. 388, 396 (1971) (“The very essence of civil liberty

certainly consists in the right of every individual to claim the

protection of the laws, whenever he receives an injury.”

(quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163,

(1803))). Section 1983 and Bivens damages actions often

represent the only way for litigants to vindicate their

constitutional rights. This case is a perfect illustration.

Because petitioners committed no crime, their Fourth

Amendment rights could not be enforced through application

of the exclusionary rule. This Court should take advantage of

this rare opportunity to assure the smooth functioning of the

machinery of civil constitutional enforcement.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Thomas C. Goldstein

Amy Howe

GOLDSTEIN & HOweE, P.C.

Respectfully submitted,

Pamela S. Karlan

(Counsel of Record)

559 Nathan Abbott Way

Stanford, CA 94305

(650) 725-485!

4607 Asbury Pl., NW

Washington, DC 20016

Francis T. Draine

Suite 303

2231 Devine St.

P.O. Box 5895

Columbia, SC 29250

October 13, 2004!”

'? Counsel for petitioners were principally assisted by the

following students in the Stanford Law School Supreme Court

Litigation Clinic: Eric J. Feigin, David B. Sapp, and Sean P.

Tonolli. Clinic members Michael P. Abate, Daniel S. Goldman, C.

Lee Reeves, and Mara A. Silver also contributed.

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-1194

DESTINY OWENS, a minor under the age of fourteen years, by

and through her mother and Guardian ad Litem, Latanya

Owens; LEISHIA DONALDSON; WILLIAM CLAYTON; GREGORY

OWENS, a minor under the age of fourteen years, by and

through his mother and Guardian ad Litem, Latanya Owens;

LATANYA OWENS, APPELLANTS,

Leon Lott, Richland County Sheriff; J. Maldonado; Jane Doe;

Richard Doe, Richland County Deputy Sheriffs, APPELLEES.

Submitted: December 3, 2003

Filed: June 15, 2004

Appeals from the United States District Court for the District

of South Carolina, at Columbia.

Before MICHAEL, TRAXLER and SHEDD, Circuit Judges.

OPINION

TRAXLER, Circuit Judge.

Tiffeny Owens, Latanya Owens, Leshia Donaldson, and

William Clayton (collectively “plaintiffs”) brought this civil

rights action under section 1983 against Deputy Sheriff

Gerardo Maldonado, the Sheriff of Richland County, and two

unnamed Richland County deputies, identified as “Jane Doe”

and “Richard Roe” (collectively “defendants”). Plaintiffs

assert defendants violated the Fourth Amendment when

defendants conducted a strip-search of the women and a

patdown of Clayton pursuant to a search warrant for drugs

located at a private residence and “all persons at the

premise[s].” J.A. 247. The district court agreed with plaintiffs

that defendants’ search was unreasonable under the Fourth

Amendment; however, the court granted qualified immunity

to defendants and awarded them summary judgment on that

basis.

Plaintiffs appeal the district court’s grant of qualified

immunity, and defendants cross-appeal the district court’s

determination that their conduct, as alleged by plaintiffs,

violated the Fourth Amendment. We reject both challenges

and affirm the district court.

On June 8, 2000, Deputy Gerardo Maldonado, a narcotics

officer employed by the Richland County Sheriff's

Department in Columbia, South Carolina, received a call from

a confidential informant who claimed to have observed the

sale of a large amount of cocaine at a private residence where

he had stayed that night as a guest. According to the

informant, from whom Deputy Maldonado had received

accurate information on previous occasions, “a black male in

his late teens or early twenties” had been selling the illegal

drugs “in an expeditious manner” during the informant’s visit.

J.A. 139-40. Deputy Maldonado’s informant suggested that

law enforcement move swiftly in order to apprehend the drug

dealer. Shortly after the phone call, the informant led Deputy

Maldonado and Deputy Fred Brantley to a small house in

which he claimed to have seen the drug transactions.

With the help of another officer, Deputy Jackie Kight,

Deputy Maldonado drafted a proposed search warrant and

executed a supporting affidavit, which he presented to a state

magistrate judge around 4:00 p.m. on June 8. The affidavit

stated the following:

Within the past 72 hours a confidential and reliable

informant has observed cocaine distributed from the

location to be searched. The informant is reliable in

that [he] has provided information of on at least four

occasions that has [led] to at least four arrest[s] and

the seizure of illegal drugs. Through the affiant’s and

other . . . Narcotic officers[’] experience in drug

enforcement, it is known that subjects present at the

scene of illegal drug [transactions] . . . commonly have

drugs in their possession.

J.A. 247. Based on the foregoing statement, Deputy

Maldonado sought a search warrant for “[c]ocaine,

paraphernalia and paperwork associated with the sale, storage

and use of cocaine” found on the premises identified by the

informant, “to include all persons at the premise[s].” Jd.

(emphasis added). The magistrate judge signed the warrant,

authorizing the officers to search “all persons at the

premise[s],” id., and deputies Maldonado and Kight, and

several additional officers, immediately served and executed

the warrant. Less than 24 hours elapsed between the time at

which the confidential informant claimed to have witnessed

the criminal activity and the execution of the warrant.

When defendants arrived, sisters Tiffeny and Latanya

Owens were inside of the house with Latanya’s two minor

children. Officers initially handcuffed Tiffeny and Latanya

and then Deputy Kight, a female officer, took them to a

bathroom and performed a thorough search for drugs and

weapons. Although Tiffeny and Latanya suggested in their

deposition testimony that they had been required to remove

undergarments to facilitate the search — which conflicts with

Deputy Kight’s assertion that she never removes clothing

during a search — there is no claim before us that the manner

in which the search was conducted was itself unconstitutional.

Soon after Deputy Kight had conducted the search of

Tiffeny and Latanya, their mother, Leshia Donaldson, arrived

with her fiancé William Clayton. Donaldson, who owned the

property, was escorted by Kight to the bathroom and searched

for drugs and weapons in the same manner as were her

daughters. Like her daughters, Donaldson offered a version of

what happened during the search that was not completely

consistent with that of Deputy Kight, but she also does not

contend that the manner of the search itself was

unconstitutional. Officers frisked Clayton over his outer

garments for drugs and weapons. No narcotics were found in

the search of the house or its occupants.

All four adult subjects of the search, as well as the two

minors, filed this action in state court against the Sheriff of

Richland County, Deputy Maldonado and two officers who

participated in the execution of the search warrant, identified

as Jane Doe and Richard Roe, alleging that the search of the

individuals violated the Fourth Amendment. It is undisputed

that the defendant identified as “Jane Doe” is Deputy Kight.

The remainder of plaintiffs’ claims — eight of them — were

based on state tort law. Defendants removed the action to

district court, asserted a qualified immunity defense, and

sought summary judgment on that basis.

The district court followed the two-step qualified

immunity analytical sequence prescribed by the Supreme

Court. See Saucier v. Katz, 533 U.S. 194, 200 (2001). The

court first held that the search of plaintiffs violated the Fourth

Amendment’s guarantee against “unreasonable searches and

seizures.” U.S. Const. amend. IV. The district court defined

the issue as “whether police officers may validly obtain and

execute a search warrant for ‘all persons’ present at a locale,

absent showing of particularized probable cause to search

each individual.” J.A. 329. Rejecting the view that “all

persons” warrants similar to that procured by Deputy

Maldonado are per se unconstitutional, the district court

adopted the widely-held position, as suggested in State v. De —

Simone, 288 A.2d 849 (N.J. 1972), that such warrants can

pass constitutional muster if there was probable cause to

believe “all persons” found at the location being searched

“would be involved in the criminal operation” occurring

there. Jd. at 854; see id. at 850 (affirming the constitutionality

of the search of a passenger in an automobile used to conduct

an illegal gambling operation pursuant to a search warrant for

the vehicle “‘and all persons found therein.’”). The district

court determined there was no such probable cause in this

case, finding that “the only rationale . . . to support a claim of

particularized probable cause” to search all individuals found

on the property was “the individual’s proximity to the alleged

[criminal] activity.” J.A. 339. Citing Ybarra v. Illinois, 444

U.S. 85, 91 (1979), the court noted that, without more, “the

connection between proximity to crime and involvement in

crime [is] too tenuous to Support . . . [an] ‘all persons’

warrant.” J.A. 339-40.

Turning to the question of qualified immunity, however,

the district court held that, at the time of the unconstitutional

search, the right violated by defendants was not Clearly

established. The district court concluded that, “[b]ased on the

lack of Supreme Court and Fourth Circuit precedent dealing

directly with ‘all persons’ warrants,” and the lack of

consensus among decisions at the time that did touch on the

issue, the law was insufficiently clear to divest defendants of

their qualified immunity. J.A. 342. Accordingly, the court

granted defendants qualified immunity, dismissed the section

1983 claim, and remanded the remaining claims, all of which

are grounded in state law, to state court.

Defendants appeal the district court’s conclusion that

plaintiffs’ section 1983 action states a constitutional violation;

defendants agree with the district court, of course, that the law

was not clearly established for purposes of qualified

immunity. Conversely, plaintiffs agree with the district

court’s determination that the search was constitutionally

invalid, but challenge the court’s conclusion that the law was

not “clearly established” at the time. We cannct completely

accept either position because, in our opinion, the district

court reached the correct result on both steps. Thus, we affirm

the judgment of the district court.

IT.

A court’s evaluation of a qualified immunity defense to a

section 1983 claim is a two-part process. Our first task is to

determine whether the plaintiff has alleged the deprivation of

a constitutional right. See Saucier, 533 U.S. at 200-01. If SO,

only then do we undertake the next task of determining

“whether the right was clearly established at the time such

that it would be clear to an objectively reasonable officer that

his conduct violated that right.” Brown v. Gilmore, 278 F.3d

362, 367 (4th Cir. 2002). Thus, liability will not be imposed

“when an officer violates [a constitutional right]” unless “a

reasonable officer would know that the specific conduct at

issue was impermissible.” Rogers v. Pendleton, 249 F.3d 279,

285 (4th Cir. 2001); see Anderson v. Creighton, 483 U.S. 635,

638-39 (1987).

We turn first to the question of whether, “[t]Jaken in the

light most favorable to the party asserting the injury, . . . the

facts alleged show [that] the officer’s conduct violated a

constitutional right.” Saucier, 533 U.S. at 201. Specifically,

we must decide whether the facts, viewed in a light most

favorable to plaintiffs, establish that defendants’ search of

plaintiffs pursuant to the “all persons” language in the warrant

was unreasonable under the Fourth Amendment.”

The Fourth Amendment ensures that citizens are “secure

in their persons . . . against unreasonable searches and

seizures.” U.S. Const. amend. IV. “[R]easonableness requires

probable cause and a warrant unless one of the exceptions to

the warrant requirement applies,” Doe v. Broderick, 225 F.3d

440, 451 (4th Cir. 2000); see Katz v. United States, 389 U.S.

347, 357 (1967), a principle drawn from the Fourth

Amendment’s prohibition against the issuance of warrants

without “probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched, and the

persons or things to be seized.” U.S. Const. amend. IV. The

magistrate issuing the search warrant must “make a practical,

* This opinion employs the term “all persons warrant” to mean

(generally) a search warrant authorizing the search of a particular

place for evidence of a particular crime, as well as “all persons”

found on the premises at the time of the search. See 2 Wayne R.

LaFave, Search and Seizure § 4.5(e), at 545 (3d ed. 1996) (“One

form of warrant which has been challenged with some frequency

directs a search for particularly described items within a . . . home,

apartment, store, or vehicle, including ‘any and all persons found

therein.””).

common-sense decision whether, given all the circumstances

Set forth in the affidavit . . . there is a fair probability that

contraband or evidence of a crime will be found in a

particular place.” //linois v. Gates, 462 U.S. 213, 238 (1983).

“The probable-cause standard is incapable of precise

definition or quantification into percentages because it deals

with probabilities and depends on the totality of the

circumstances.” Maryland vy. Pringle, 124 S. Ct. 795, 800

(2003). For that reason, in reviewing the sufficiency of a

supporting affidavit, we avoid applying “‘hypertechnical’

Scrutiny . . . lest police officers be encouraged to forgo the

warrant application process altogether.” United States v.

Robinson, 275 F.3d 371, 380 (4th Cir. 2001) (quoting Gates,

462 U.S. at 236).

In addition to the requirement that a search warrant be

Supported by probable cause, the warrant must particularly

describe the place where the search will occur and the

“persons or things to be seized.” Thus, the particularity

requirement of the Fourth Amendment is directed at the

warrant as opposed to the supporting affidavit. See Groh v.

Ramirez, 124 S. Ct. 1284, 1289 (2004). Requiring

particularity in the warrant itself serves a couple of important

functions. Of course, there is the well-examined purpose of

preventing general searches. See Maryland v. Garrison, 480

U.S. 79, 84 (1987) (“By limiting the authorization to search to

the specific areas and things for which there is probable cause

to search, the requirement ensures that the search . . . will not

take on the character of the wide-ranging exploratory searches

the Framers intended to prohibit.”). A search warrant that

describes its object with particularity discourages the state

from embarking on a “general exploratory rummaging’”

through a citizen’s private residence. United States vy.

Oloyede, 982 F.2d 133, 138 (4th Cir. 1993) (per curiam)

(quoting Coolidge v. New Hampshire, 403 U.S. 443, 467

(1971)). The particularity requirement also affords written

assurance to “the individual whose property is searched or

seized of the lawful authority of the executing officer, his

need to search, and the limits of his power to search.” Groh,

124 S. Ct. at 1292 (internal quotation marks omitted).

Whether, and under what circumstances, an “all persons”

warrant is valid under the Fourth Amendment presents a

novel question in this circuit. It also remains unanswered in

the Supreme Court, which acknowledged this issue in Ybarra,

444 US. at 92 n.4, but left its resolution for another day. Only

a smattering of federal courts have addressed the difficulties

presented by the inclusion of “all persons” language in a

premises search warrant, see Marks v. Clarke, 102 F.3d 1012,

1029 (9th Cir. 1997); Baker v. Monroe_Township, 50 F.3d

1186, 1188-89 n.1 (3d Cir. 1995); id. at 1199 (Alito, J.,

dissenting); United States v. Guadarrama, 128 F. Supp. 2d

1202, 1206-14 (E.D.Wis. 2001) (collecting cases); United

States v. Graham, 563 F. Supp. 149, 151 (W.D.N.Y. 1983),

and a few others have mentioned it in passing, see Burns v.

Loranger, 907 F.2d 233, 234 n.2 (1st Cir. 1990); Guzman v.

Estelle, 493 F.2d 532, 533-34 & n.7 (Sth Cir. 1974); United

States v. Johnson, 475 F.2d 977, 979 n.5 (D.C. Cir. 1973).

The most extensive treatment of the question, by far, has been

given in the state courts. See Guadarrama, 128 F. Supp. 2d at

1206-09 (compiling a comprehensive list of state court

decisions from more than thirty-five jurisdictions).

The minority view emerging from these decisions is that a

premises search warrant that also authorizes the search of “all

persons” found on the premises being searched contravenes

the particularity requirement of the Fourth Amendment and is

invalid on its face. Common to the minority position is the

view that there is an “uncomfortable similarity between [the]

‘all persons’ warrant and [the] general warrant.” /d. at 1207.

In sum, a handful of decisions suggest that an “all persons”

warrant is invalid per se under the Fourth Amendment,

concluding it is either functionally the same as a general

warrant, or it is not sufficiently particular to satisfy the

requirements of the Fourth Amendment’s Warrant Clause.

See, e.g., State v. Cochran, 217 S.E.2d 181, 183-84 (Ga. Ct.

App. 1975).

By contrast, a majority of the courts have rejected the idea

that an “all persons” warrant could never under any

circumstances be constitutional. The New Jersey Supreme

Court’s opinion in De Simone emerged as the leading decision

for the view that an “all persons” warrant is not

unconstitutional per se, but rather is valid as long as there is

probable cause to believe that everyone found on the premises

being searched is involved in the illegal activity and that

evidence of the crime would be found on their person. See

288 A.2d at 854. Under such a fact-dependent approach, the

constitutionality of a search based upon a person’s physical

proximity to the illegal activity turns wholly on the context of

the search. Thus,

[a] showing that [illegal] lottery slips are sold in a

department store or an_ industrial plant obviously

would not justify a warrant to search every person on

the premises, for there would be no probable cause to

believe that everyone there was participating in the

illegal operation. On the other hand, a showing that a

dice game is operated in a manhole or in a barn should

suffice, for the reason that the place is so limited and

the illegal operation so overt that it is likely that

everyone present is a party to the offense. Such a

setting furnishes not only probable cause but also a

designation of the persons to be searched which

functionally is as precise as a dimensional portrait of

them.

Id. at 850. De Simone involved an illegal gambling business

that several individuals operated from their automobiles,

using the vehicles as a “drop” or “pickup” for the exchange of

money and gambling slips. Officers who had observed the

operation obtained search warrants for the search of the

vehicles and “‘all persons found therein.’” Jd. The court

observed that it was "reasonable to conclude . . . that a

passenger in the car was probably a party [to the wrongdoing]

. . . [because] a driver would not likely bring . . . an

uninvolved person who would witness" drops and pickups to

10a

and from an empty car. Jd. at 852.-The close quarters in the

interior of a car makes a passenger’s presence more indicative

of complicity in the illegal activities “than would be presence

in a building in which some illegality may be occurring.” Jd.

at 851.

Although Ybarra v. Illinois did not address a so-called “all

persons” warrant, it sheds additional light on our analysis.

Officers in Ybarra obtained a warrant to search the premises

at a public tavern, as well as the bartender, for narcotics. A

state statute allowed officers who were executing the warrant

“to search any person in the place . . . (a) [t]o protect himself .

. . or (b) to prevent the disposal or concealment of . . . things

particularly described in the warrant.” 444 U.S. at 87 nl

(emphasis added). There was no specific information giving

officers probable cause to believe that anyone in the tavern,

other than the bartender, was involved in the distribution of

drugs. Indeed, the application for the warrant did not suggest

that the tavern was regularly visited by drug-purchasing

patrons — the sole connection between Ybarra and the drug

transactions at the tavern was his presence “in a public tavern

at a time when the police had reason to believe that the

bartender would have heroin for sale.” /d. at 91. And, there

was no reason that Ybarra would have appeared armed or

dangerous. Nevertheless, officers patted down Ybarra and

recovered heroin from his pocket.

In holding the search unconstitutional under the Fourth

Amendment, the Court explained that there was no “probable

cause particularized with respect to [Ybarra]” and that his

“mere propinquity to others independently suspected of

criminal activity d[id] not, without more,” supply the missing

probable cause. Jd. The Court noted that, because of the

particularity requirement of the Warrant Clause, a general

warrant is impermissible, and “[i]t follows that a warrant to

search a place cannot normally be construed to authorize a

search of each individual in that place.” /d. at 92 n.4. Finally,

the Court implied that the warrant issued for the tavern did

not supply a basis for searching individuals in the bar,

lla

although the Court recognized the possibility that a warrant

could, under the right circumstances, provide that support:

“[W]e need not consider situations where the warrant itself

authorizes the search of unnamed persons in a place and is

supported by probable cause to believe that persons who will

be in the place at the time of the search will be in possession

of illegal drugs.” Jd.

We agree that the majority view, as articulated in De

Simone, correctly holds that an “all persons” warrant can pass

constitutional muster if the affidavit and information provided

to the magistrate supply enough detailed information to

establish probable cause to believe that all persons on the

premises at the time of the search are involved in the criminal

activity. In our view, the inclusion of “all persons” language

in a warrant presents probable cause issues rather than

particularity problems. “A search warrant authorization to

search all persons found within a specifically described place

is not lacking particularity in the sense that the executing

officer will be unable readily to determine to whom the

warrant applies.” 2 Wayne R. LaFave, Search and Seizure §

4.5(e), at 546-57 (3d ed. 1996); see De Simone, 288 A.2d at

850-51 (“[W]ith regard to the Fourth Amendment demand for

specificity as to the subject to be searched, there is none of the

vice of a general warrant if the individual is . . . identified by

physical nexus to the ongoing criminal event itself.”). Thus,

as long as “there is good reason to suspect or believe that

anyone present at the anticipated scene will probably be a

participant" in the criminal activity occurring there, "presence

becomes the descriptive fact satisfying the aim of the Fourth

Amendment.” De Simone, 288 A.2d at 851.

In this case, we agree with the district court that Deputy

Maldonado’s affidavit did not supply sufficient information to

establish probable cause that anyone who happened to be on

the premises during the execution of the search warrant was

involved in the sale of illegal drugs. The only justification

presented to the magistrate for the search of “all persons at the

premise[s]” was Deputy Maldonado’s “experience in drug

12a

enforcement . . . that subjects present at the scene of [an]

illegal drug distribution . . . commonly have drugs in their

°°

possession.” J.A. 247. This generalization was and is

undoubtedly true, but it did not provide the kind of

particularized information that would have permitted the

magistrate to reasonably conclude that there was a fair

probability that any person seen by officers on the premises

was there to partake in one side of a drug transaction or

another. At bottom, the search warrant authorized the search

of individuals in this case based on nothing more than their

proximity to a place where criminal activity may or may not

have occurred. And, as the Supreme Court has explained, “a

person’s mere propinquity” to suspected criminal activity

“does not, without more, give rise to probable cause to search

that person.” Ybarra, 444 U.S. at 91.

Defendants contend that the district court’s conclusion

was wrong in two respects: (1) the court erroneously believed

that the “particularized probable cause” necessary to search an

individual under an “all persons” warrant required Deputy

Maldonado and his fellow officers to identify specific

individuals to be searched; and (2) contrary to the district

court’s determination, there were sufficient facts to support.

probable cause to search anyone found on the premises for

drugs — in other words, there was presented to the magistrate

more than plaintiffs’ mere propinquity to the alleged criminal

activity. We cannot agree.

Defendants’ contention that the district court found the

search unconstitutional because law enforcement failed to

identify any specific individual to be searched misconstrues

the district court’s decision. Defendants focus, to the

exclusion of several pages of discussion, on the district

court’s statement that “the warrant failed to describe any

particular individual.” J.A. 339. Even a casual reading of the

district court’s opinion, however, makes clear that the district

court properly understood that the relevant inquiry was

whether there was “probable cause to believe ‘all persons’

present at [the subject residence] would be involved in

13a

criminal activity,” and that the search warrant failed because

it did not “articulate particularized probable cause to search

any specific individual.” /d. Read in the context of the district

court’s entire opinion, the latter statement — and others like it

— merely reflect the court’s conclusion that there was no

probable cause to search any individual who happened to be

on the premises when the warrant was executed. The district

court correctly concluded that there was simply no probable

cause for the searches at issue — there was no probable cause

to search “all persons at the premises,” which includes the

plaintiffs, and obviously there was no description or other

specific information contained in the affidavit or warrant that

would have permitted the search of plaintiffs separate and

apart from the “all persons” language contained in the

warrant.

Next, defendants argue that there were sufficient facts to

establish probabie cause to search “all persons” on the

premises. Defendants offer several factors in support of this

argument: the warrant was executed on the same day that the

informant claimed to have witnessed the drug transactions; a

large amount of cocaine was alleged to have been at the

house; the informant reported that drugs were being sold

rapidly; the premises to be searched was a small, single-

family house; and each of the individuals searched had a

“significant connection” to the premises, living there part-

time or full-time. According to defendants, these allegations

permit the reasonable assumption that the drug transactions

were not yet complete and that any person who was at the

house was involved. Further, defendants contend the fact that

the house was small bolsters the conclusion that any person

on the premises at the time of the search knew about the

activity and was involved.

None of these facts appear in Deputy Maldonado’s

supporting affidavit. Our review of whether the search

warrant was supported by probable cause — in other words, a

review of the facts upon which the issuing magistrate relied

— may not go beyond the information actually presented to

PT oR ENED ney Pee We Ran ee ERR Mg te) he Ae a en et ae

SAT AEE Hye et ce Yeti etre EP a NEO

14a

the magistrate during the warrant application process. See

Whiteley v. Warden, 401 U.S. 560, 565 n.8 (1971) (“[A]n

otherwise insufficient affidavit cannot be rehabilitated by

testimony concerning information possessed by the affiant

when he sought the warrant but not disclosed to the issuing

magistrate. .. . A contrary rule would . . . render the warrant

requirements of the Fourth Amendment meaningless.”). In

this circuit, the failure to include information within the four

corners of the affidavit is not necessarily fatal, provided the

information is actually presented to the magistrate — a

magistrate “may consider sworn, unrecorded oral testimony in

making probable cause determinations during warrant

proceedings.” United States v. Clyburn, 24 F.3d 613, 617 (4th

Cir. 1994). All the record contains in this regard, however, is

an affidavit filed in the district court by Deputy Maldonado —

recounting the information supplied by the informant,

including the fact that the informant had witnessed the

transactions in the early morning hours of that same day and

that there was a large amount of narcotics involved. The size

of the residence, which defendants contend is a critical factor

in favor of probable cause, is not mentioned in Deputy

Maldonado’s federal affidavit, was apparently never given to

the magistrate and was never a factor in the issuance of the

search warrant. According to Deputy Maldonado, he drafted

the supporting affidavit which he took to the magistrate;

“la]fter hearing the aforementioned background information,

Judge Davis determined that probable cause existed . . . [and]

signed the search warrant and-supporting affidavit.” J.A. 141.

There is simply no indication in the record that any of the

specific facts upon which defendants now rely were offered to

the magistrate through sworn oral statements. Accordingly,

defendants’ argument relies upon facts extrinsic to the

application process which will not aid them in the context of

probable cause.

Furthermore, these facts, even if presented to the

magistrate through sworn oral testimony, fail to provide the

kind of information that would establish probable cause to

15a

believe every person found on the premises was likely

involved in the selling and buying of drugs. There was no

indication, for example, that this particular residence had a

history of drug-related activities or that known drug dealers or

users were frequenting the place. See Commonwealth vy.

Graciani, 554 A.2d 560, 562 (Pa. Super. Ct. 1989) (search

under “all persons” warrant valid relating to drug transactions

occurring in residence where previous drug-related arrests had

been made); Morton v. Commonwealth, 434 S.E.2d 890, 892-

93 (Va. Ct. App. 1993) (upholding “all persons” warrant

where officer’s affidavit indicated that apartment manager

had received prior complaints about crack distribution from

the subject apartment and that recent surveillance had

discovered the presence of known drug dealers in the

apartment); Commonwealth v. Smith, 348 N.E.2d 101, 106

(Mass. 1976) (“all persons” warrant valid ‘in light of recent

comings and goings of known heroin traffickers). There was

no ongoing drug activity evidenced by multiple transactions

over an extended period of time;- rather, the confidential

informant reported having seen cocaine distributed from the

residence on a single occasion. See People v. Johnson, 805

P.2d 1156, 1161 (Colo. Ct. App. 1990) (permissible to search

every person found on the premises in light of “transactions

[that] are continuous, ongoing, and obvious to even the most

unsophisticated observer that criminal activity is taking

place”) (internal quotation marks omitted). Nor was there any

“regular traffic” of individuals to and from the residence that

would suggest ongoing drug activity. See State v. Loins, 993

P.2d 1231, 1235 (Kan. Ct. App. 1999) (collecting cases);

Smith, 348 N.E.2d at 106. Furthermore, there was nothing

about the condition of the house itself, its location or its

surrounding neighborhood to suggest it served as a place

likely to attract only people involved in the drug trade. See

People v. Nieves, 330 N.E.2d 26, 34 (N.Y. 1975) (validity of

“all persons” warrant determined in light of affidavit’s

description of “the character of the premises . . . its location,

size, the particular area to be searched, means of access,

l6a

neighborhood”). Finally, although the search warrant

pertained to non-public property — where ordinarily the

presence of an innocent passerby is less likely than in a public

facility like a train station — the residential nature of the

premises and the fact that the search occurred during daytime

or early evening hours presented the obvious risk that

unsuspecting friends, neighbors, or laborers would be present

during the search. See State v. Jackson, 616 N.W.2d 412, 419

(S.D. 2000) (“Another factor leading us to uphold this warrant

is that it was executed at night, making it improbable that

innocent people would show up by happenstance.”).

In sum, Deputy Maldonado was not given sufficient

information by his confidential informant and, in turn, did not

supply the magistrate information to establish probable cause

that “all persons” at the residence were likely involved in

illegal drug transactions.

Ill.

The second phase of the qualified immunity analysis

requires us to decide whether the conduct alleged by the

plaintiff ‘“viclate[s] clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A

preliminary task is to define the constitutional right at issue

“at a high level of particularity.” Edwards v. City of

Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999). The right

alleged to have been violated is “clearly established” if “[t}he

contours of the right [are] sufficiently clear that a reasonable

official would understand that what he is doing violates that

right.” Anderson, 483 U.S. at 640. This determination “is an

objective one, dependent not on the subjective beliefs of the

particular officer at the scene, but instead on what a

hypothetical, reasonable officer would have thought in those

circumstances.” Wilson v. Kittoe, 337 F.3d 392, 402 (4th Cir.

2003). “Clearly established” does not mean that “the very

action in question has previously been held unlawful,” but it

does require that, “in the light of pre-existing law the

unlawfulness [of the official’s conduct] must be apparent.”

17a

Wilson v. Layne, 526 U.S. 603, 615 (1999). In other words,

“the exact conduct at issue need not have been held unlawful

for the law governing an officer’s actions to be clearly

established.” Amaechi v. West, 237 F.3d 356, 362 (4th Cir.

2001). And, the absence of controlling authority holding

identical conduct unlawful does not guarantee qualified

immunity. See Kittoe, 337 F.3d at 403. We must consider “not

only already specifically adjudicated rights, but those

manifestly included within more general applications of the

core constitutional principle invoked.” Amaechi, 237 F.3d at

362-63 (internal quotation marks omitted).

Whether a right has been specifically adjudicated or is

manifestly apparent from broader applications of the

constitutional premise in question, we look ordinarily to “the

decisions of the Supreme Court, this court of appeals, and the

highest court of the state in which the case arose.” Edwards,

178 F.3d at 251 (internal alterations and quotation marks

omitted). When there are no such decisions from courts of

controlling authority, we may look to “‘a consensus of cases of

persuasive authority” from other jurisdictions, if such exists.

Wilson, 526 U.S. at 617; see Amaechi, 237 F.3d at 363.

There is no controlling authority that informs our analysis

in this case. As we have already noted, the Supreme Court has

not addressed the circumstances, if any, under which an “all

persons” provision in a search warrant is constitutional, see

Ybarra, 444 U.S. at 92 n.4, nor has this court done so. The

vast majority of the decisions from other jurisdictions

considering the validity of “all persons” warrants — mostly

State decisions — conclude that a search warrant authorizing

the search of “all persons” found on the premises does not

violate the Fourth Amendment per se. Beyond that broad

conclusion, however, courts impose different requirements for

what is necessary to sustain the validity of such a warrant.

The approach used in De Simone, for example, is to determine

whether “there is good reason to suspect or believe that

anyone present at the anticipated scene will probably be a

participant” in the criminal conduct occuring there. 288 A.2d

18a

at 851. Other jurisdictions, imposing more stringent

requirements, “permit such warrants if the facts known to the

issuing judge justify a belief that the premises are confined to

ongoing illegal activity and that every person within the orbit

of the search possesses the items sought by the warrant.” State

v. Horn, 808 P.2d 438, 439 (Kan. Ct. App. 1991) (emphasis

added); see Nieves, 330 N.E.2d at 34. Still another approach is

to find the warrant valid if there is a reasonable probability

that persons involved in the criminal! activity will be present

during the execution of the warrant. See State v. Hayes, 540

N.W.2d 1, 4 (Wis. Ct. App. 1995). Moreover, these decisions

provide no clear view, let alone a consensus, regarding what

factors are most significant in deciding whether sufficient

probable cause exists to support the search of “all persons”

found in a private residence beiig searched for drugs.

Compare Hayes, 540 N.W.2d at 2 (approving of search of “all

persons” on the premises where supporting affidavit stated

only that, in the officer’s experience, it was common to find

persons involved in the crime on the premises during the

search and that such individuals commonly carried

contraband on their persons) with State v. Thomas, 540

N.W.2d 658, 664 (Iowa 1995) (requiring the warrant

application to include (1) “the character of the premises,

including its location, size, and public or private character;”

(2) “the nature of the illegal conduct;” (3) “the number and

behavior of persons expected to be present . . . ;” (4) whether

innocent individuals were seen on the premises; and (5) the

time and place the alleged activity is to occur). We conclude

that at the time of the search, the law was not sufficiently

clear to strip defendants of qualified immunity.

IV.

For the foregoing reasons, we affirm the district court’s

determination that the search of plaintiffs violated their Fourth

Amendment rights, but that these rights were not clearly

established such that a reasonable officer would have

understood that the search encroached upon those rights.

AFFIRMED

19a

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

C/A No: 3:01-4574-17

DESTINY OWENS, a minor under the age of fourteen years, by

and through her mother and Guardian ad Litem, Latanya

Owens, PLAINTIFF,

Vz.

LEON LOTT, Richland County Sheriff; J. MALDONADO,

Richland County Deputy Sheriff; JANE DoE; RICHARD DOE,

Richland County Deputy Sheriffs, DEFENDANTS.

C/A No: 3:01-4575-17 -

LESHIA DONALDSON, PLAINTIFF,

LEON LoTT, Richland County Sheriff; J. MALDONADO,

Richland County Deputy Sheriff; JANE DOE; RICHARD Dog,

Richland County Deputy Sheriffs, DEFENDANTS.

~ C/A No: 3:01-4577-17

WILLIAM CLAYTON, PLAINTIFF,

Vv.

LEON LotTT, Richland County Sheriff; J. MALDONADO,

Richland County Deputy Sheriff; JANE DoE; RICHARD Dog,

Richland County Deputy Sheriffs, DEFENDANTS.

C/A No: 3:01-4578-17

GREGORY OWENS, a minor under the age of fourteen years, by

and through his mother and Guardian ad Litem, Latanya

20a

Owens, PLAINTIFF,

LEON LoTT, Richland County Sheriff; J. MALDONADO,

Richland County Deputy Sheriff; JANE DOE; RICHARD DOE,

Richland County Deputy Sheriffs, DEFENDANTS

C/A No: 3:01-4579-17

LATANYA OWENS, PLAINTIFF,

LEON LoTT, Richland County Sheriff; J. MALDONADO,

Richland County Deputy Sheriff; JANE DOE; RICHARD DOE,

Richland County Deputy Sheriffs, DEFENDANTS

C/A No: 3:01-4580-17

TIFFENY OWENS, PLAINTIFF,

LEON LOTT, Richland County Sheriff; J. MALDONADO,

Richland County Deputy Sheriff; JANE DOE; RICHARD DOE,

Richland County Deputy Sheriffs, DEFENDANTS

Jan. 13, 2003

Order Granting in Part Defendants’ Motion for Summary

Judgment and Remanding to State Court

JOSEPH F. ANDERSON, JR., District Judge

This case presents the rather difficult, and—in this circuit

at least—novel, question of whether a search warrant validly

executed for the purpose of searching a location, may also

authorize the search (including, here, a strip search) of “all

persons” who happen to be present at that particular location

at the time of the search. This court holds that, on the facts

2la

presented here, the search was unconstitutional because there

was no- particularized probable cause to search each

individual. Because this right was not clearly established at

the time, however, the officers conducting the search are

protected by the doctrine of qualified immunity and therefore

the claim asserted against them pursuant to 42 U.S.C. § 1983

must be dismissed. As to the remaining state law claims, the

court will remand them to state court.

I. Procedural History

On June 8, 2000 several officers with the Richland County

Sheriffs Department executed a search warrant for a residence

at 1116 Tree Street in Columbia, South Carolina. The search

produced no evidence of illegal activity. On October 31, 2001

the plaintiffs, all individuals present at the residence during

the execution of the search warrant, filed complaints in the

Richland County Court of Common Pleas alleging several

State-law causes of action and federal civil rights claims under

42 U.S.C. § 1983. The defendants subsequently removed the

cases to federal court. By order dated June 6, 2002, this court

consolidated the cases for pretrial purposes only. The

defendants filed a motion for summary judgment on all causes

of action on August 13, 2002 and a hearing was held on

September 25, 2002. After the hearing, the court requested

additional briefing from the parties on the constitutionality of

the search warrant in question. Those briefs have been

received and reviewed and the matter is now ripe for the

court’s decision.

II. Factual Background

On June 8, 2000, a confidential informant called the cell

phone of Deputy Sheriff J. Maldonado (“Maldonado”) and

provided information to Maldonado regarding drug activity

the informant had observed at 1116 Tree Street. Specifically,

the informant told Maldonado that, on the night of June 7,

2000 and early morning hours of June 8, he had seen a black

male in his late teens or early twenties selling a large quantity

of cocaine from the residence at that address. Based on this

information, Maldonado agreed to meet the informant that

22a

day so the informant could take Maldonado to the subject

address. After confirming the address with the informant,

Maldonado and Deputy Sheriff Jackie Kight (“Kight”) drafted

a search warrant and affidavit. During the afternoon of June 8,

2000, a magistrate judge signed the search warrant

authorizing a search of the house described as follows:

“Traveling on Tree St. it’s the fifth house on the right from

Senate St. towards Gervais St.” The warrant further

authorized the search of “all persons at the premises.”

Maldonado, Kight, and several other deputies executed

the warrant some time between 4:00 p.m. and 5:00 p.m. that

day. The officers effected a “dynamic entry” wherein the front

door or the residence was knocked in using a battering ram

and the officers entered with guns drawn. Inside the house’

were one resident, Tiffeny Owens (age 17) and three visitors,

Tiffeny’s sister Latanya Owens (age 18) and Latanya’s two

children, Gregory (age 1) and Destiny (age 3).

Upon entering the residence, the officers handcuffed

Latanya and Tiffeny. Deputy Kight, a woman, then escorted

the women, individually, to the bathroom of the residence to

be “strip searched.” While the Latanya and Tiffeny were

made to lift up their shirts and bras and pull down their pants

and underwear, they were not asked to disrobe completely.

Tiffeny Owens, who was menstruating at the time of the

search, initially refused to follow Officer Kight’s instructions

to pull down her pants and underwear, but complied after

Officer Kight told Tiffeny she had no choice. (See Tiffeny

Owens Dep. at 22-23.) Although the record is not completely

clear as to whether Officer Kight touched Tiffeny and

Latanya during the search, nothing in the record indicates

that, if touching did occur, it was inappropriate in the context

' Based on a search of the deed transfer and tax assessor

records for Columbia, South Carolina, the court has found that the

home at 1116 Tree Street has three bedrooms, one bathroom, and

occupies 1056 square feet.

23a

of the strip search.’

? Latanya Owens claims to have been touched by Officer Kight.

While her deposition supports her claim, it also indicates that the

touching was fleeting and not done for salacious or inappropriate

reasons.

Q. And then you said that [Officer Kight] touched your person,

she actually touched your breasts?

A. Yes, she did.

Q. And describe specifically how she touched your breasts,

exactly where it was, how long it was.

A. She kind of felt under to make sure nothing was under the

breasts, you know. She kind of, like — weil, I had my bra up, so

they were up. She was just making sure, like, in the middle

nothing was there.

Q. So, from what you saw, she was trying to actually look in

and around your breasts for a particular purpose?

A. I would guess, yes.

* *k *

Q. Describe [Officer Kight’s] demeanor to you during your-

all’s conversation.

A. I don’t understand when you say demeanor.

Q. Was she nice? Was she mean? Was she businesslike about

it? I mean, tell me how she was.

A. She was kind of not demanding, but she was more making it

seem to me it was required.

Q. Kind of like she wasn’t doing that for her personal pleasure;

she was doing this because it was required?

A. She said it had to be done, that we have to search you is

what she said, so I took it as it’s required for me to do this. I

have to take these clothes off.

Latanya Owens Dep. at 39-41. Tiffeny Owens’s deposition appears

to indicate that she was not touched by Officer Kight during the

search.

Q. Was [Officer Kight] touching your skin in any way. (sic)

You said she touched your bra, and she popped your bra?

A. Yeah, she like, felt around the bra.

Q. She felt around your bra, not your person?

A. No, she felt around in the bra, and then she popped the bra.

Q. Okay. But up until this point we’re not necessarily talking

24a

After the search of the residence had begun, Leshia

Donaldon (“Donaldson’’), Latanya and Tiffeny’s mother, and

William Clayton (“Clayton”), Donaldson’s boyfriend, both

residents of 1116 Tree Street, arrived home from work. The

officers handcuffed Clayton and escorted Donaldson back to

the restroom to be searched in the same manner as her

daughters, Tiffeny and Latanya, had been searched.’ The

about her touching your skin? She was going around your bra

area?

A. Uh huh. Uh-huh.

Q. Right?

A. Yes.

* * *

Q. And I understand correctly that she did touch your garments

and those things and ask you to do things, but did she ever

touch you, your person, in conducting the search?

A. She, like, when I dropped my pants, she just like, looked

around. She never really touched. She just looked.

Tiffeny Owens Dep. at 24, 27-28.

* Leshia Donaldson’s deposition testimony, although somewhat

inconsistent, indicates that she was touched by Officer Kight.

Q. So, they instructed you to go to the bathroom. What

happened once you were in the bathroom?

A. The lady cop comes in, pull your shirt up, she — you know,

just touched here (indicating), drop your pants and, okay, you

know, that was it.

* * *

Q. Just so we’re clear, okay, so she didn’t touch you?

A. Did she touch me? No.

Q. She just gave you a look over?

A. Yes.

* * *

Q. So, while you were in the bathroom, she didn’t touch you.

She looked you over real good?

A. Yes, she did.

Q. After she did that, she let you go?

A. I’m going to take that back.

Q. Okay.

25a

officers recovered nothing from the searches of the residence

or individuals.*

III. Analysis

The motion before the court is the defendants’ motion for

summary judgment on all claims. While disposing of the

federal civil rights claims under 42 U.S.C. § 1983, this court

remands the remaining state law claims to state court for

further proceedings. This order, therefore, will address only

the merits of the Section 1983 claims.

A. Summary Judgment Standard

Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on

A. I’m going to take that back. She had rubber gloves on, so,

therefore, we lift our shirts, spread our legs, and she just, like,

looked. She just touched to make sure nothing was there. That

was it.

Q. Was it just kind of a real quick pat?

A. Yeah.

[Plaintiffs’ Counsel]: Object to the form of the question.

By [Defendants’ Counsel]:

Q. Was it a real quick pat or real extended pat where she stayed

on you?

[Plaintiffs’ Counsel]: Object to the form of the question,

but you may answer.

By [Defendants’ Counsel]:

Q. Tell me the manner in which she touched you.

A. (Indicating). As if they do — you know how you do a quick

(indicating) or a quick pat down search like that (indicating).

Q. And she did this with rubber gloves?

A. She had rubber gloves on.

Leshia Donaldson Dep. at 33, 3 7, 38.39.

* The court notes that after the procurement and execution of

the search warrant, Officer Maldonado received a written

reprimand reminding him to corroborate information from

informants in the future. (See Maldonado Dep. At 59-61.) The

record is unclear as to whether Officer Kight or any of the other

officers that participated in the execution of the warrant were

reprimanded.

26a

file, together with affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c). It is well established that summary judgment

should be granted “only when it is clear that there is no

dispute concerning either the facts of the controversy or the

inferences to be drawn from those facts.” Pulliam Inv. Co. v.

Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987).

The party moving for summary judgment has the burden

of showing the absence of a genuine issue of material fact,

and the court must view the evidence before it and the

inferences to be drawn therefrom in the light most favorable

to the nonmoving party. United States v. Diebold, Inc., 369

U.S. 654, 655 (1962). When the defendant is the moving

party and the plaintiff has the ultimate burden of proof on an

issue, the defendant must identify the parts of the record that

demonstrate the plaintiff lacks sufficient evidence. The

nonmoving party, here the plaintiff, must then go beyond the

pleadings and designate “specific facts showing that there is a

genuine issue for trial.” Fed. R. Civ. P. 56(e); see also Celotex

Corp. v. Catrett, 477 U.S. 317 (1986).

B. Qualified immunity

In asserting a claim under 42 U.S.C. § 1983, the plaintiffs

contend that the defendants violated their civil rights when

they executed the search warrant on June 8, 2000.° The

officers, in turn, claim they are protected by qualified

immunity. Qualified immunity, as Justice Powell explained in

Harlow v. Fitzgerald, 457 U.S. 800 (1982), ensures that

public officials are “shielded from liability for civil damages

insofar as their conduct does not violate clearly established

* 42 U.S.C. § 1983 states in pertinent part: “Every person who,

under color of any statute, ordinance, regulation, custom, or usage,

of any State ... subjects or causes to be subjected, any citizen of the

United States ... to the deprivation of any rights... secured by the

Constitution ... shall be liable to the party injured ... .” 42 U.S.C. §

1983 (2000). ‘

27a

statutory or constitutional rights of which a reasonable person

would have known.” /d. at 818. The United States Court of

Appeals for the Fourth Circuit has stated that qualified

immunity “ensures that these officials can perform their

duties free from the specter of endless and debilitating

lawsuits.” Torchinsky v. Siwinski, 942 F.2d 257, 260 (4th Cir.

1991). Further explaining, the Fourth Circuit stated that

“[d]iscretionary decisions by government actors inevitably

impact the lives of private individuals, sometimes with

harmful effects.... Holding police officers liable in hindsight

for every injurious consequence of their actions would

paralyze the functions of law enforcement.” Pinder v.

Johnson, 54 F.3d 1169, 1173 (4th Cir. 1995) (citing

Torchillsky v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991).

As the United States Supreme Court stated in 1999, “{a]

court evaluating a claim of qualified immunity ‘must first

determine whether the plaintiff has alleged the deprivation of

an actual constitutional right at all, and if so, proceed to

determine whether that right was clearly established at the

time of the alleged violation.”” Wilson v. Layne, 526 U.S.

603, 609 (1999) (quoting Conn v. Gabbert, 526 U.S. 286, 290

(1999). Thus, it is for this court to decide what right of the

plaintiffs’, if any, was violated and whether, at the time of the

violation, the right was clearly established. The second step

allows the court to determine whether the officers’ actions

were objectively reasonable. See Pinder v. Johnson, 54 F.3d

1169, 1173 (4th Cir. 1995) (“Important to this reasonableness

inquiry is whether the rights alleged to have been violated

were clearly established at the time of the challenged

actions.”) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). As the Fourth Circuit stated in Pinder, “[I]f the law

supporting the allegedly violated rights was not clearly

established, then immunity must lie.” /d.

1. Has the Plaintiff Alleged a Violation of an Actual

Constitutional Right?

There can be little doubt that the constitutional right

allegedly violated by the officers in this case is to be found, if

28a

it is to be found anywhere, within the Fourth Amendment’s

guarantee of freedom from unreasonable search and seizure.°

Specifically, the right at issue here could be described as the

right to be free of a search conducted pursuant to a so-called

“all persons” warrant, that is, a warrant that authorizes

officers to conduct a full blown search of every person

present at a location where criminal activity has allegedly

been observed. Parenthetically, it is important to note at the

outset what is not involved in this case. This case does not

present the question of whether, for their own safety, police

officers may conduct a limited pat down, during the course of

the search, of all persons present at the scene of a premises

search. That question, although touched on by the Supreme

Court (in dictum) in Ybarra v. Illinois, 444 U.S. 85 (1979),

has yet to be fully resolved and is not addressed here.’ In

addition, this case does not involve the well settled point of

law allowing officers executing a search warrant for a

residence to detain the occupants of the residence during the

° The Fourth Amendment provides that “[t]he right of the

people to be secure in their persons, houses, papers, and effects,

from unreasonable searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable: cause, supported by

Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” U.S. Const.

amend. IV.

’ In Ybarra the United Stales Supreme Court stated the

following:

The Terry case created an exception to the requirement of

probable cause, an exception whose “narrow scope” this Court

“has been careful to maintain.”... The “narrow scope” of the

Terry exception does not permit a frisk for weapons on less

than reasonable belief or suspicion directed at the person to be

frisked, even though that person happens to be on the premises

where an authorized narcotics search is taking place.

Ybarra v. Illinois, 444 U.S. 85, 93 (1979). For further discussion of

this particular question, see WAYNE R. LAFAVE, SEARCH AND

SEIZURE § 4.9(d) (3d ed. 1996).

29a

execution of the warrant. See Michigan v. Summers, 452 U.S.

692 (1981) (holding that “a warrant to search for contraband

found on probable cause implicitly carries with it the limited

authority to detain the occupants of the premises while a

proper search is conducted”’). »

The threshold question facing this court is whether police

officers may validly obtain and execute a search warrant for

“all persons” present at a locale, absent a showing of

particularized probable cause to search each individual.

Neither the United States Supreme Court nor the Fourth

Circuit has specifically addressed the constitutionality of “all

persons” watrants.®

The positions taken by various state jurisdictions and the

few federal jurisdictions that have spoken on the subject can

be roughly grouped into two categories. The first category is

comprised of those jurisdictions that deem “all persons”

warrants facially unconstitutional. The second category

includes those jurisdictions that follow the standard expressed

in the New Jersey case State v. De Simone, 288 A.2d 849

(N.J. 1972). De Simone and its progeny generally hold that

although such warrants are not facially unconstitutional, they

must be supported by particularized probable cause to search

each of the individuals present at the site of the search. This

may, of course, depend greatly upon the particular

circumstances of the case such as the location of the search

ana the nature of the crime being investigated.

* In Ybarra v. Illinois, 444 U.S. 85 (1979), the United States

Supreme Court held unconstitutional the search of an individual

pursuant to an Illinois statute that authorized law enforcement

officers to detain and search any person found on premises being

searched pursuant to a search warrant. The Ybarra Court

specifically held open the constitutionality of “all persons” warrants

stating that, “we need not consider situations where the warrant

itself authorizes the search of unnamed persons in a place and is

supported by probable cause to believe that persons who will be in

the place at the time of the search win be in possession of illegal

drugs.” Jd. at 92 n.4.

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As discussed below, this court rejects the view that “all

persons” search warrants are facially unconstitutional, and

adopts the De Simone standard. Moving to the second part of

the inquiry, however, the court determines that on the facts of

this case, where the informant reported seeing “‘a black male”

dispensing contraband, there was no probable cause to strip

search the females who were present at the scene, or those

who happened upon the scene as the search was in progress.

a. “All persons” Warrants are Facially Unconstitutional

The jurisdictions that deem “all persons” warrants facially

unconstitutional do so for one of two reasons. First, several

jurisdictions hold that “all persons” warrants are simply not

descriptive or specific enough to satisfy the language of the

Fourth Amendment.’ These jurisdictions reason that the

language of the Fourth Amendment explicitly requires

specificity and “all persons” warrants are just too broad.

Second, a few jurisdictions find “all persons” warrants

unconstitutional because they all too closely resemble the

general warrants and writs of assistance that gave rise to the

Fourth Amendment.'° The English colonists’ experience with

” See United States v. Johnson, 475 F.3d 977, 979 (D.C. Cir.

1973) (dictum) (“To obtain a warrant permitting the search of

anyone found on the premises would ... appear to be unsupportable

as lacking the particularity constitutionally required.”); People v.

Tenne,, 25 Cal App. 3d 16, 24, 101 Cal Rptr. 419, 423 (Ct App.

1972) (holding that “unidentified persons” warrant lacked

reasonable particularity); State v. Wise, 284 A.2d 292, 294 (Del.

Super. Ct. 1971) (holding “occupants” warrant insufficiently

specific); Johantgen v. Commonwealth, 571 S.W.2d 110, 111-12

(Ky. Ct. App. 1978) (holding “any other person” warrant

insufficiently specific); People v. Jackson, 446 N.W.2d 891, 893

(Mich. Ct. App. 1989) (holding “other persons” warrant lacked

required particularity), rev'd on other grounds, People v. Russo,

487 N.W.2d 698, 706 n.32 (Mich. 1992).

'° See State v. Lewis, 566 P.2d 678, 680 (Ariz. 1977) (dictum)

(stating that search of persons only incidentally on premises and

neither named nor described in warrant would be general warrant);

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writs of assistance, which gave the British customs officials

blanket authority to search for goods imported in violation of

British tax laws, led to the adoption of the Fourth

Amendment. See Sanford v. Texas, 379 U.S. 476, 482-86

(1965). General warrants, from which writs of assistance were

derived, were used in 17th and 18th century England to stifle

the presses. See Marcus v. Search Warrant of Property, 367

U.S. 717, 726-27 (1961). For example, one such warrant

empowered the Surveyor of the Press to “seize all seditious

books and libels and to apprehend the authors, contrivers,

printers, publishers, and dispersers of them,” and to “search

any house, shop, printing room, chamber, warehouse, etc. for

seditious, scandalous or unlicensed pictures, books, or papers,

to bring away or deface the same.” /d. at 726 (quoting

SIEBERT, FREEDOM OF THE PRESS IN ENGLAND, 1476-1776, at

254 (citing Entry Book 5 at 177)). While suppression of the

presses through the use of general warrants was judicially

outlawed in 1765 when Lord Camden declared their use

contrary to the common law in the case Entick v. Carrington,

19 How. St. Tr. 1029 (1765),'' the use of such warrants had

forever changed the American legal landscape.

b. The De Simone Standard

In addition to a majority of state jurisdictions,'” all of the

federal jurisdictions that have addressed the constitutionality

State v. Cochran, 217 S.E.2d 181, 183-84 (Ga. Ct. App. 1975)

(holding a “persons” warrant is a general warrant); Crossland vy.

State, 266 P.2d 649, 651 (Okla. Crim. App. 1954) (holding that,

based on state constitution, “every person” warrant is a general

warrant).

'' The United States Supreme Court has called Entick v.

Carrington “one of the landmarks of English liberty.” Boyd v.

United States, 116 U.S. 616, 626 (1886).

'? For a comprehensive survey of state jurisdictions’ treatment

of “all persons” warrants as of 2001, see United States v.

Guadarrama, 128 F. Supp. 2d 1202, 1207-1209 (E.D. Wis. 2001)

(finding that 26 state jurisdictions use the De Simone standard or

have implicitly adopted it).

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of “all persons” warrants have adopted, either explicitly or

implicitly, the De Simone standard established in New Jersey

v. De Simone, 288 A.2d 849 (N.J. 1972).'° In De Simone,

New Jersey local authorities, after receiving and investigating

a tip from the Federal Bureau of Investigation, determined

that a certain group of automobiles were being used as

“drops”'* for lottery slips. Jd. at 851. The authorities

'S See Marks v. Clarke, 102 F.3d 1011, 1029 (9th Cir. 1996) (“a

warrant to search ‘all persons present’ for evidence of a crime may

only be obtained when there is reason to believe that all those

present will be participants in the suspected criminal activity”);

United States v. Shields, No. 98-3059, 1999 U.S. App. LEXIS

2496, at *6-*9, 1999 WL 76890, at *3) (10th Cir. Feb. 18, 1999)

(holding that the validity of an “all persons” warrant hinged on

whether there was “probable cause to believe all those present

possessed evidence of criminal activity”); Williams v. Kaufman

County, No. 3:97-CV-0875-L, 2002 U.S. Dist. LEXIS 5555, at

*11-*16, 2002 WL 519814, at *4-*5 (N.D. Tex. Mar. 29, 2002)

(holding that “all persons” search warrant was unconstitutional

when executing officers admitted at trial that “they had no evidence

to support their belief or suspicion that the individual plaintiffs ...

were in possession of weapons or contraband”); United States v.

Guadarrama, 128 F. Supp. 2d 1202, 1210-12 (E.D. Wis. 2001)

(holding an “all persons” warrant for a tavern unconstitutional

under the De Simone standard); United States v. Smith, No. 00-

40118-01/03-SAC, 2001 U.S. Dist. LEXIS 6380, at *27-*30, 2001

WLS523371, at *9-*10 (Kan. April26, 2001); United States v.

Graham, 563 F. Supp..149, 151 (W.D.N.Y 1983) (admitting

evidence seized pursuant to an “all persons” warrant because the

supporting affidavit established probable cause to search all persons

found in the named duplex).

'* The De Simone court described the use of “drop” cars as

follows:

By evident prearrangement, other vehicles came in quick

succession, stopping near the car, the drivers then dropping

brown paper bags into it. Some pickup men approached the

parked vehicle on foot and made like deposits. ... [T]he

appointed place for rendezvous was changed daily to different

intersections within the city.

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subsequently obtained search warrants authorizing the search

of these cars. One of the cars, the one in which De Simone

was a passenger, was registered to Wilson D’ Alessandro and

the search warrant for that car authorized the authorities to

search the specifically described automobile “and all persons

found therein.” Jd. at 850-51. The officers executed the

warrant and discovered lottery slips on De Simone. /d. at 851-

52. After the trial court refused to suppress the evidence. De

Simone was convicted of possession of lottery slips. /d. at

850. De Simone appealed to the Appellate Division, which

reversed, holding that the police had insufficient grounds to

search the individuals in the car, notwithstanding the grounds

the officers had to search the car itself. Jd. at 850. The state

appealed to the Supreme Court of New Jersey, which reversed

the judgment of the Appellate Division and affirmed the

conviction of De Simone. /d. at 854.

The Supreme Court of New Jersey found that the probable

cause to search the automobile extended to all the individuals

in the automobile. First, the New Jersey court noted that

probable cause extended to the driver because the driver “of

course had to be involved.” Jd. at 852. As for the passengers,

the court found that probable cause extended to them for two

reasons:

First, a driver would not likely bring or be permitted to

bring an uninvolved person who would witness the

deposit of like objects by the others who were

expected to converge at the appointed time. The

second reason is that during the surveillance some of

the pickup men had been observed to come on foot,

and hence it would not be surprising, depending on the

location for a particular day, that a pickup man would

be given a lift.

Id. The court, explaining the importance of evaluating the

warrant in the context of the particular criminal enterprise,

De Simone, 288 A.2d at 851.

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noted that “[a] warrant must be read realistically in the light

of the proof upon which it was issued.” /d. The court

concluded that the search of De Simone was constitutional

because there existed probable cause to believe the passengers

“would be involved in the criminal operation,” and the

passengers’ “presence in the car at the place of the criminal

rendezvous satisfied the requirement for specificity in the

Fourth Amendment.” /d. at 854.

The only federal appeals court to have applied the De

Simone standard, the United States Court of Appeals for the

Ninth Circuit, applied it in a case that proves particularly

illuminating because of its similarity to the case before this

court. In Marks v. Clarke, 102 F.3d 1012 (9th Cir. 1996), the

Ninth Circuit addressed the constitutionality of “all persons”

warrants issued to search two Spokane, Washington

residences. After Spokane police officers conducted an

extensive investigation of a group of individuals suspected of

purchasing large amounts of stolen property, the officers

obtained search warrants authorizing the search of two

residences. /d. at 1019. In addition to the residences, the

warrants authorized the officers to search two named males

and any other persons present. /d. The authorization to search

“all persons” for evidence was granted despite the fact that

the affidavit submitted with the warrant application requested

only authorization to search two named individuals and all

others present “for officer safety.” Jd.

Several officers executed the warrants and obtained over

six hundred items of personal property and $1.6 million in

cash. Jd. at 1022. Although the exact number of individuals

subjected to a search of their person was disputed, it was

undisputed that many, including women and children, were

searched during the execution of the warrants. /d. After

approximately two years of litigation over whether the search

and seizure were constitutional, the trial court ultimately

suppressed all of the seized evidence, ordered the return of all

the confiscated property, and dismissed the underlying

criminal charges. /d. at 1023. The State of Washington

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appealed the order as to the return of the property and the

dismissal of the criminal charges, but did not appeal the

suppression of the evidence. /d. The Washington Supreme

Court reinstated the criminal charges and remanded the case

to the trial court for determination of who should receive the

disputed property. /d. All of the criminal charges were

eventually dismissed or reduced. /d.

Three years after the search, the Markses instituted two

civil rights actions in federal court against the City of

Spokane, Spokane County, and various individual defendants.

Id. at 1023-24. The district court held that the warrant in

question was unconstitutional for two reasons. First, the

district court found that the warrant was a “general warrant”

and failed to comport with the Fourth Amendment’s

requirement that warrants describe with particularity the items

to be seized. /d. at 1024. Second, the district court found that

the authorization to search all persons at the residences

violated the Fourth Amendment because it was not supported

by probable cause individualized to each person. /d. The

district court denied all of the defendants qualified

immunity'> and granted summary judgment to plaintiffs on

the issue of liability finding that, with respect to the officers

that obtained the warrant, their failure to “constantily]

reference” the warrant during the search was unreasonable,

and with respect to the officers executing the search, they

were executing a “general” warrant and thus were not entitled

to qualified immunity. /d. at 1024-25.

The Ninth Circuit upheld the denial of qualified immunity

but for reasons different than those cited by the district court.

'S The standard for qualified immunity in the Ninth Circuit,

while worded differently than the Fourth Circuit standard outlined

in Pritchett v. Alford, has similar requirements. The analysis used

by the Ninth Circuit involves two questions: “(1) Was the law

governing the official’s conduct clearly established? (2) Under that

law, could a reasonable officer have believed the conduct was

lawful?” Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.

1993).

36a

With respect to the officers that sought and obtained the

warrant, the Ninth Circuit held that their motion for qualified

immunity must be denied because the officers unreasonably

obtained and executed a warrant to search all persons present

for evidence. Id. at 1025. Specifically, the court held that

warrant was obtained unreasonably because the affidavit that

supported the warrant “not only was lacking in any indicia of

probable cause to search all persons but itself requested

permission only to search two persons ... for evidence of the

crime under investigation ... and all others solely for officer

safety.” Id. (second emphasis added).

In support of this line of argument, the Ninth Circuit

quoted the Supreme Court case Ybarra v. Illinois, 444 U.S. 85

(1980). The Court in Ybarra held that:

Where the standard is probable cause, a search or

seizure of a person must be supported by probable

cause particularized with respect to that person. This

requirement cannot be undercut or avoided simply by

pointing to the fact that coincidentally there exists

probable cause to search or seize another or to search

the premises where the person may happen to be.

Id. at 91. The Ninth Circuit acknowledged that the Ybarra

Court did not directly address the constitutionality of “all

persons” warrants but found that this small void in the

Supreme Court’s definition of the contours of the Fourth

Amendment arose only when the warrant was “supported by

probable cause to believe that persons who will be in the

place at the time of the search will be in possession of [items

subject to seizure].” Marks v. Clarke, 102 F.3d 1012, 1027

‘1997) (quoting Ybarra v. Illinois, 444 U.S. 85, 92 n.4

(1980)). In other words, the Marks court found that while the

Supreme Court in Ybarra did not address whether “all

persons” warrants are constitutional when there exists

particularized probable cause to search each individual, there

is no question that “all persons” warrants are unconstitutional

in the absence of the requisite particularized probable cause.

As for the officers that executed the warrant but had no

37a

role in procuring it, the Ninth Circuit examined the facts

Surrounding the search and asked whether particularized

probable cause existed to search all of the persons present.

The Ninth Circuit found that, as to everyone except the two

named individuals, probable cause to search “all persons

present” for evidence was lacking. Jd. at 1027-28. The state

argued that an “all persons” warrant was reasonable in this

instance because “[ulnder the facts and circumstances

confronting the officers, they justifiably concluded they were

in a ‘den of theives.”” Jd. at 1029. The Ninth Circuit

responded to this argument by characterizing it as “simply a

more sophisticated and beguiling version of the kind of

justification forbidden by Ybarra...”'® and repeating that

regardless of what the officers were confronted with,

“a warrant to search ‘all persons present’ may only be

obtained when there is reason to believe that all those present

will be participants in the suspected criminal activity.” Jd.

The Ninth Circuit concluded that the officers could not have

reasonably believed everyone at the residences was involved

in criminal activity because “[h]ere, as we have noted, ...large

numbers of family members, including children, were, as the

officers might have anticipated, present before and during the

search.” Jd. The court stated, however, that an “all persons

present” warrant “might be appropriate for a different kind of

locale—one dedicated exclusively to criminal activity—for

example, a building or apartment used as a crack house, a

barn used as a methamphetamine lab, or a warehouse used

exclusively as a storage place for arms.” Jd. The court then

explicitly adopted the De Simone standard and quoted that

case as Stating that:

A showing that lottery slips in a department store or an

industrial plant obviously would not justify a warrant

to search every person on the premises, for there

searched according to Ybarra simply because they are there.”

United States v. Vaughn, 718 F.2d 332, 335 n.7 (9th Cir. 1983).

38a

would be no probable cause to believe that everyone

there was participating in the illegal operation. On the

other hand, a showing that a dice game in a manhole

or in a barn should suffice, for the reason that the

place is so limited and the illegal operation so overt

that it is likely that everyone present is a party to the

offense.

Id. (quoting State v. De Simone, 288 A.2d 849, 850 (N.J.

1972); and citing 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE

§ 4.5(e), at 546 (3d ed. 1996) (endorsing the limited rationale

outlined in De Simone as the proper analysis for “all persons

present” warrants)). In conclusion, the court found that based

on the De Simone standard and in light of the facts and

circumstances surrounding the search, the warrant’s

authorization to search “all persons present” was

unconstitutional.

Having established the unconstitutionality of the warrant,

the court then sought to determine whether the executing

officers were protected by qualified immunity. The court

explained that “[nJotwithstanding the warrant’s invalidity,

[the officers] who searched the various plaintiffs are

nevertheless entitled to rely on the warrant, and will not be

stripped of qualified immunity, as long as their reliance is

objectively reasonable.” /d. at 1028 (citing United States v.

Leon, 468 U.S. 897, 920-921 (1984)). The court then

explained their rationale for denying the defendants qualified

immunity.

In this case, if the overbreadth of the warrant with

respect to searching “any yerson present” was not

immediately apparent at the pre-search briefing

session, its invalidity certainly became apparent, at the

latest, when the officers were confronted with the duty

of searching dozens of people, including children,

even the point of “inspecting” the diaper of an infant.

In whatever limited circumstances a blanket “any

person present” warrant might serve Ybarra’s dear

requirement of “probable cause particularized with

39a

respect to [each] person,” the circumstances of the

execution of this warrant made it unreasonable for an

official to believe that it was not facially overbroad.

Id. at 1029 (quoting Ybarra v. Illinois, 444 U.S. 85, 91

(1979)) (internal cites omitted).

Having established that “all persons” warrants are

unconstitutional when used without probable cause to believe

“all persons” are involved in criminal activity, the next

question is whether the “all persons” warrant used in the case

before the court was unconstitutional as executed. In other

words, was the “all persons” warrant in the case supported by

probable cause to search the occupants of the residence at

1116 Tree Street?

A quick review of the basic facts provides context. The

alleged illegal activity in this case was drug dealing. The

confidential informant told officer Maldonado that he had

seen a black male, in his late teens or early twenties distribute

cocaine from the residence at 1116 Tree Street. Based on this

information, officers Maldonado and Kight drafted a search

warrant and affidavit. Under the headline “REASON FOR

AFFIANT’S BELIEF THAT THE PROPERTY SOUGHT IS

ON THE SUBJECT PREMISES,” the affidavit stated that:

Within the past 72 hours a confidential and reliable

informant has observed cocaine distributed from the

location to be searched. The informant is reliable in

that it has provided information of [sic] on at least four

occasions that has lead to at least four arrest and

seizure [sic] of illegal drugs. Through the affiant’s and

other Richland County Sheriff's Department Narcotic

officer [sic] experience in drug enforcement, it is

known that subjects present at the scene of illegal drug

distribution and/or possession [sic] commonly have

drugs in their possession an [sic]

The operative question is, based on this affidavit, did Officers

Kight and Maldonado have probable cause to believe “all

persons” present at 1116 Tree Street would be involved in

criminal activity? This court finds that there was insufficient

40a

particularized probable cause to search “all persons” present

at 1116 Tree Street in the context of the facts presented in this

case. Thus, this “all persons” warrant violated the Fourth

Amendment.

The court comes to this conclusion based on the rationale

of Ybarra and Marks as applied to the facts of this case.

While the Marks case from the Ninth Circuit is not binding on

this court, its factual similarity to this case makes it

particularly persuasive. Regardless of the Ninth Circuit’s

reasoning in Marks, however, this court believes the “all

persons” warrant in this case is unconstitutional based on the

teachings of Ybarra. The Ybarra Court stated clearly that

“[w]here the standard is probable cause, a search or seizure of

a person must be supported by probable cause particularized

with respect to that person.” Ybarra v. Illinois, 444 U.S. 85,

91 (1979) (emphasis added). The warrant in this case is not

particularized to anyone. Despite the fact that the confidential

informant told officer Maldonado he observed a black male in

his late teens or early twenties selling drugs from the

residence, the search warrant does not articulate particularized

probable cause to search any specific individual.

Because the warrant failed to describe any particular

individual, the only rationale remaining to support a claim of

particularized probable cause would be that the individual’s

proximity to the alleged activity gave rise to the requisite

probable cause. In other words, probable cause existed to

search all persons at 1116 Tree Street because, due to their

proximity to the alleged drug dealing, they must be involved

in it. This court finds the connection between proximity to

crime and involvement in crime too tenuous to support a

warrant as broad as the “all persons” warrant of this case.'”

'’ This does not mean that proximity to crime can never create

the sufficient probable cause to search. See State v. De Simone, 288

A.2d 849, 850 (1972) (“[A] showing that a dice game in a manhole

or in a barn should suffice [to create probable cause], for the reason

4la

See Ybarra v. Illinois, 444 U.S. 85,91 (1979) (“[A] person’s

mere propinquity to others independently suspected of

criminal activity does not, without more, give rise to probable

cause to search that person.”’).

One might argue that the fact that the location in this case

was a residence, as opposed to a tavern as in Ybarra, militates

toward a finding of probable cause under the theory that the

inhabitants of a residence are aware and often involved in one

another’s activities. In addition, because residences are, by

definition, not public places, the risk of the executing officers

searching members of the public that have no relation

whatsoever to the alleged suspects is minimized. Though the

risk of searching uninvolved individuals is minimized, it is

not eliminated. As the New Jersey Supreme Court stated in

De Simone, “[ijn the case of a dwelling, there is a great

likelihood that an innocent person could happen to visit the

occupant.” 288 A.2d 849, 851 (1972). The Ninth Circuit held

in Marks that “all persons” warrants for residences are never

constitutional for “a raid on any family home where innocent

family members or friends might be residing or visiting.”

Marks v. Clarke, 102 F.3d 1012, 1029 (9th Cir. 1997). See

also United States v. Guadarrama, 128 F. Supp. 2d 1202,

1212 n.14 (2001) (“It is worthy of note that De Simone’s

standard does not automatically authorize ‘all persons’

warrants for non-public places, especially private

residences.”) (emphasis added).

Finally, at common law, the home has always been

afforded special protection. See Semayne’s Case, 77 Eng.

Rep. 194, 195 (K.B. 1603) (“[T]he house of everyone is to

him as his castle and fortress, as well for his defence against

injury and violence, as for his repose.”); WILLIAM

BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND

223 (1765-1769) (“[T]he law of England has so particular and

tender a regard to the immunity of a man’s house, that it stiles

that the place is so limited and the illegal operation so overt that it

is likely that everyone present is party to the offense.”).

42a

it his castle, and will never suffer it to be violated with

impunity...”); see also United States v. United States District

Court, 407 U.S. 297, 313 (1972) (“Physical entry of the home

is the chief evil against which the wording of the Fourth

Amendment is directed.”’).

In conclusion, because the “all persons” warrant in the

present case was unsupported by probable cause

particularized to the individuals that were searched, the

warrant was invalid under the Fourth Amendment. The

officers could, consistent with the Constitution, detain all

occupants for the officers’ safety and to protect the integrity

of the search scene while the execution of the warrant

progressed. They could not, however, conduct extensive strip

searches of all persons present, including strip searches of the

females on the scene.

2. Was the Right Clearly Established at the Time of the

Violation?

The next question in determining whether the defendants

in this case should be afforded qualified immunity is whether,

at the time of the violation, the right violated by the

defendants was clearly established. When determining

whether a reasonable officer should have been aware of a

constitutional right, courts do not impose on the official a

duty to sort out conflicting decisions or to resolve subtle or

open issues. As the Fourth Circuit has observed, “officials are

not liable for bad guesses in gray areas; they are liable for

transgressing bright lines,” Maciariello v. Sumner, 973 F.2d

295, 298 (4th Cir. 1992).

At this stage, how the plaintiffs’ rights are defined,

specifically, the level of abstraction used in defining the

plaintiffs’ rights, is crucial to the integrity of the analysis. The

qualified immunity analysis is undermined if the right that

was violated is defined broadly without reference to the

material facts of the case. For example, the qualified

immunity analysis would be meaningless if, at this stage, the

court defined the right that was violated as the right to be free

from unreasonable searches and seizures. This articulation of

43a

the right fails to incorporate any meaningful description of the

Officer’s actions and guarantees a denial of qualified

immunity regardless of the reasonableness of those actions.

As the Fourth Circuit stated in Anderson v. Creighton, 483

U.S. 635 (1982), “the right the official is alleged to have

violated must have been ‘clearly established’ in a more

particularized, and hence more relevant, sense ....” Jd. at 640.

In the present case, this court finds the right at issue is best

defined as the right to be free from searches and seizures

conducted pursuant to “all persons” search warrants where the

search warrant is unsupported by particularized probable

cause to search all persons.

Thus, this court must determine whether the contours of

the Fourth Amendment were sufficiently clear at the time of

the search to make it plain to reasonable Officers that their

actions violated the plaintiffs’ rights. Based on the lack of

Supreme Court and Fourth Circuit precedent dealing directly

with “all persons” warrants and the muddled line delineating

the constitutional and unconstitutional use of “all persons”

warrants, this court finds that the right to be free of

unconstitutional “all persons” warrants was not sufficiently

clear at the time of the violation for the defendants to be

stripped of qualified immunity.

The court acknowledges that the plaintiffs’ Section 1983

claim is not doomed merely because neither the Supreme

Court nor the Fourth Circuit has addressed the specific issue

of “all persons” warrants. The lack of appellate comment in

this case is one factor contributing to this court’s conclusion

that the right was not clearly established. The other

contributing factor is the fine line between the constitutional —

and unconstitutional use of “all persons” warrants.'* While

'® As the United States Supreme Court stated in Anderson v.

Creighton:

The contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right. This is not to say that an official action is

44a

the De Simone standard effectively restricts the use of “all

persons” warrants, it does not foreclose their use all together.

Again the necessary inquiry focuses on the particularized

probable cause and in this case, the court finds the call was

too close to warrant denying the defendants qualified

immunity.

IV. Conclusion

Although this court finds the warrant executed on 1116

Tree Street on June 8, 2000 unconstitutional, the court also

finds that the right violated—the right to be free of

unconstitutional “all persons” warrants—was not clearly

established at the time of the violation. Thus, the defendants

are granted qualified immunity with respect to the plaintiffs’

civil rights claim under 42 U.S.C. § 1983. The remaining state

claims are remanded to state court.

IT IS SO ORDERED.

protected by qualified immunity unless the very action in

question has been previously held unlawful, but it is to say that

in light of preexisting aw the unlawfulness must be apparent.

483 U.S. 635, 639 (1987).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.