# Petition for Writ of Certiorari — Donaldson v. Lott > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1455%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 543 U.S. 1050 ## Text Supreme Court, U.S / FILED aull*. 516 OCT 13 2004 ‘IN THE Supreme Court of the United States Leshia Donaldson, et al., Petitioners, v. 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 i 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? il 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 iv 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 Vv 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 vi 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 é 2 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: 3 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. 4 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 5 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. 6 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). 7 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. 8 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. 9 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 10 *** 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. 11 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 12 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 4 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)). 13 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. 14 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 15 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 16 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 17 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. 18 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” 19 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 — 20 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 21 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). 22 540 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 23 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. 24 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 25 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 26 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 27 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 28 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. 29 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. 30 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. ts APPENDIX la 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, v. 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 2a 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. A 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 3a 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 4a 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 Sa 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 6a 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.””). Ta 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 8a 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). 9a 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, V. 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, V. 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, V. 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, V. 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 reasonabl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1455%3A1. Public record. Not legal advice.