               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0558n.06
                             Filed: July 1, 2005

                                         No. 04-5679

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


J.T. SANDERS,                                  )
                                               )
       Plaintiff-Appellee,                     )
                                               )
v.                                             )   ON APPEAL FROM THE UNITED
                                               )   STATES DISTRICT COURT FOR THE
MAX PARRISH, Individually & as                 )   WESTERN DISTRICT OF KENTUCKY
Calloway County Deputy Sheriff; DENNIS         )
McDANIEL, Individually & as Calloway           )
County Deputy Sheriff; STAN SCOTT, as          )
Calloway County Sheriff; and CALLOWAY          )
COUNTY, KENTUCKY,                              )
                                               )
       Defendants-Appellants.                  )




       Before: COLE and SUTTON, Circuit Judges; ZATKOFF, Senior District Judge.*


       ZATKOFF, Senior District Judge. In this 42 U.S.C. § 1983 action, Plaintiff-Appellee J.T.

Sanders (“Sanders”) alleged the Defendants-Appellants violated his Fourth Amendment rights in

conducting a search of his residence. The district court denied a motion for summary judgment

based on qualified immunity filed by the individual defendants, Calloway County Deputy Sheriff

Max Parrish (“Parrish”) and Calloway County Deputy Sheriff Dennis McDaniel (“McDaniel”)

(collectively, the “Law Enforcement Officers”), and granted Sanders’ motion for partial summary


       *
       The Honorable Lawrence P. Zatkoff, Senior District Judge for the Eastern District of
Michigan, sitting by designation.
judgment.


       As we conclude the Law Enforcement Officers are entitled to qualified immunity, we reverse

the district court’s order denying qualified immunity to the Law Enforcement Officers, and we

remand the case to the district court for proceedings consistent with this opinion.


                          I. FACTS AND PROCEDURAL HISTORY


       On December 31, 1998, Parrish made a routine traffic stop of Lawrence Williams. During

that stop, Williams told Parrish that he had visited Sanders’ home the previous night and observed

numerous marijuana plants under cultivation inside the Sanders’ residence. Williams visited the

Sanders’ home again on December 31, 1998, and saw at least 30 marijuana plants there. Williams

then signed a handwritten affidavit confirming that he had seen marijuana growing in Sanders’

residence. Parrish and Williams later met McDaniel at the Calloway County Sheriff’s Office. Based

on information provided by Williams, McDaniel prepared the search warrant and supporting

affidavit forms to be signed by Parrish.


       The search warrant described the premises to be searched in the appropriate section. In the

section of the form intended to describe the items to be seized, the description of the premises to be

searched was inadvertently duplicated. As a result, the search warrant did not include any

description of the items to be seized. The same duplication of the description of the premises to be

searched and omission of the items to be seized plagued the affidavit signed by Parrish. Parrish

stapled his affidavit and the Williams’ affidavit to the search warrant. He presented those stapled

documents to the magistrate judge and told her the object of the search was marijuana. Parrish


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stated that the magistrate judge appeared to read both affidavits attached to the search warrant and

signed the search warrant. After the magistrate judge signed the search warrant, Parrish returned

to the Calloway County Sheriff’s Office, made copies of the search warrant and affidavits, again

stapling the copies of both Parrish’s affidavit and Williams’ affidavit to the search warrant. Parrish

then met the team of Calloway County law enforcement officers and explained to them that the

object of the search was marijuana.


       No one was present at Sanders’ residence when the execution of the search warrant was

initiated, but a woman arrived during the search. She was told that the officers were executing a

search warrant and were looking for marijuana. The officer found a large quantity of marijuana in

the home, as well as several firearms in plain view. Parrish was present for and had possession of

the search warrant (with the attached affidavits) throughout the search. A copy of the warrant (with

the attached affidavits) was left at the Sanders residence.


       Sanders was charged with various offenses as a result of the execution of the search warrant.

Sanders moved the Calloway County Circuit Court to suppress the evidence seized in the search,

but his motion was denied. Sanders entered a conditional guilty plea and received a prison term.

Sanders appealed the denial of the motion to suppress to the Kentucky Court of Appeals. The

Kentucky Court of Appeals held that the search warrant was invalid because of its generality,

vacated the conditional guilty plea and remanded the matter to the Calloway County Circuit Court

for further proceedings. The Calloway County Circuit Court dismissed the indictment without

making findings of fact or conclusions of law. Sanders then filed this civil action.


       In this civil action, Sanders moved for partial summary judgment as to the liability of the

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Law Enforcement Officers. Defendants-Appellants filed a motion for summary judgment seeking

dismissal of all of Sanders’ claims, contending that: (1) Sanders’ constitutional rights had not been

violated, (2) the individual defendants were entitled to qualified immunity, and (3) there was no

proof in the record to support the necessary predicate for governmental liability, i.e., that the Law

Enforcement Officers’ conduct resulted from an official policy or custom of the County. On May

13, 2004, the district court entered an order granting Sanders’ motion and denying Defendants’

motion. The Memorandum and Order also granted Sanders judgment on the issue of liability against

all defendants, including Sheriff Stan Scott and Calloway County (even though Sanders had not

asked for the same in his motion), and stated that the only issue for trial was damages.


                        II. SANDERS’ CONSTITUTIONAL RIGHTS


       This Court has jurisdiction to review a denial of summary judgment on the basis of qualified

immunity where, as here, the denial does not turn on the existence of a genuine issue of material

fact. Skousen v. Brighton High Sch., 305 F.3d 520, 525 (6th Cir. 2002); 28 U.S.C. §1291. We

review a district court’s denial of qualified immunity on a de novo basis. Skousen, 305 F.3d at 526.


       To survive a motion for summary judgment in a § 1983 action, a plaintiff must demonstrate

that (1) a defendant acting under color of state law (2) took action that amounts to a constitutional

deprivation (3) such that the defendant is not entitled to dismissal pursuant to the doctrine of

qualified immunity. Summers v. Leis, 368 F.3d 881, 887-88 (6th Cir. 2004); Saucier v. Katz, 533 U.S.

194, 200-01 (2001). This Court generally reviews a claim for qualified immunity in two steps. First,

we determine whether the plaintiff has alleged the deprivation of a constitutional right. Wilson v.

Layne, 526 U.S. 603, 609 (1999). If he has, we then must determine whether that right was clearly

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established at the time of the alleged deprivation such that a reasonable person would know that his

conduct was in violation of that right. Id.


       The Fourth Amendment of the United States Constitution requires that a warrant

“particularly describ[e] the place to be searched, and the persons or things to be seized.” U.S. Const.

amend. IV. Generally, the requirement of specificity in the description of the place to be searched

and the persons or things to be seized is fulfilled by an adequate description on the face of the search

warrant. On numerous occasions, however, this Court has recognized that even though the search

warrant itself lacks sufficient particularity regarding the place to be searched or the persons or items

to be seized, such warrant may still yield a constitutionally valid search based on the principle of

“cure by incorporation.” See, e.g., United States v. Blakeney, 942 F.2d 1001 (6th Cir. 1991); United

States v. Gahagan, 865 F.2d 1490 (6th Cir.), cert. denied, 492 U.S. 918 (1989). See also United

States v. Brown, 49 F.3d 1162 (6th Cir.), cert. denied, 516 U.S. 942 (1995).


       The district court held that the search warrant in this case was constitutionally defective

based on the U.S. Supreme Court’s recent decision in Groh v. Ramirez, 540 U.S. 551 (2004) (which

was issued after the parties briefed their motions in district court but before the district court

rendered its decision). Groh was an agent with the Bureau of Alcohol, Tobacco and Firearms who

received information that illegal firearms and other explosive materials were concealed at the

Ramirez ranch. In preparing the warrant, Groh failed to identify the items he intended to seize,

mistakenly repeating the description of the premises to be searched. When obtaining a magistrate

judge’s signature on the search warrant, Groh presented the magistrate with the search warrant form

and his affidavit. The Groh warrant neither incorporated any other document by reference, nor were


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any documents attached to the warrant. During a fruitless search of the Ramirez ranch, Groh took

only the warrant to the scene (but not his affidavit, which was under seal).


          The Supreme Court held that a deficient warrant could not be “cured by incorporation” when

the warrant neither referenced the curative document, nor was the curative document attached to the

warrant. Groh, 540 U.S. at 558. The Groh majority also rejected Groh’s contention that his

affidavit saved the search warrant from a lack of particularity, stating that the Fourth Amendment

existed not only to prevent general searches but to assure “the individual whose property is searched

or seized of the lawful authority of the executing officer, his need to search, and the limits of his

power to search.” Id. at 561 (citation omitted). As Groh’s search warrant application and affidavit

did not accompany the officers to the scene, neither the warrant application and affidavit nor the

limiting description of the items to be seized were available to the property owners during the

search.          This Court also recently addressed the applicability of the cure by incorporation

principle. See Baranski v. Fifteen Unknown Agents of the Bureau of Alcohol, Tobacco and

Firearms, 401 F.3d 419 (6th Cir. 2005). In Baranski, this Court refused to apply the cure by

incorporation principle in a case where the facts paralleled those in Groh. Specifically, in Baranski,

the underlying affidavit was not attached to the warrant and was not available at the scene because

it was under seal. These facts were critical to the Baranski court’s decision, as evidenced by the

following statement (which first discusses the Groh decision and then applies the Groh decision to

the facts in Baranski):


                 It was not sufficient for Agent Groh to be subjectively aware of the
                 particulars contained in the affidavit; those particulars had to be
                 communicated through the warrant to Ramirez. . . . . It follows, a
                 fortiori, that it was not sufficient for Agent Johnson to be aware of

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               the limits on his lawful authority under the warrant. Those
               particulars had to be communicated to the manager of [plaintiff]
               through the warrant or an attachment to the warrant. It is undisputed
               that they were not because, as in Groh, the affidavit that contained
               the particulars did not accompany the warrant at the time of the
               search and seizure.


Baranski, 401 F.3d at 429 (citations omitted).


       We conclude that the Groh and Baranski decisions do not govern the instant case. First,

neither the Groh court nor the Baranski court invalidated the cure by incorporation principle. In

fact, the Groh court stated:


               We do not say that the Fourth Amendment forbids a warrant from
               cross-referencing other documents. Indeed, most courts of appeals
               have held that a court may construe a warrant with reference to a
               supporting application or affidavit if the warrant uses appropriate
               words of incorporation, and if the supporting document accompanies
               the warrant. . . . But in this case the warrant did not incorporate other
               documents by reference, nor did either the affidavit or the application
               (which had been placed under seal) accompany the warrant. Hence,
               we need not further explore the matter of incorporation.


Groh, 540 U.S. at 557-58 (citations omitted). Similarly, the Baranski decision leaves open the

possibility, even the likelihood, that the application of the cure by incorporation principle would be

proper in a case such as this, where the premises to be searched and the items to be seized are

communicated to the search subject in the warrant and attachments to the warrant.


       Second, unlike in Groh and Baranski, the curative documents in this case were attached to

the warrant during the search. Accordingly, an analysis of the cure by incorporation principle is

appropriate. This Court has broadly interpreted the cure by incorporation principle and generally


                                                  7
permitted it where an affidavit or other supporting document is incorporated by reference in the

warrant and accompanies the warrant. In Blakeney, 942 F.2d at 1023-24, this Court held that an

expressly incorporated affidavit that references a second affidavit authored by the same affiant, a

law enforcement officer, was sufficient for incorporation of both documents:


       We acknowledge that the clearest indication of incorporation of both affidavits
       would have resulted had the magistrate referenced both of them. Notwithstanding
       this fact, we believe that Agent Sadowski’s incorporation of the August 19 affidavit
       in paragraph 2 of the August 21 affidavit and the magistrate’s explicit incorporation
       of the August 21 affidavit (in which the August 19 affidavit was incorporated and
       attached) were sufficient.


Id. at 1024.


       In Gahagan, this Court found that (1) the warrant in that case insufficiently described the

premises to be searched, (2) the warrant did not specifically incorporate the underlying affidavit, and

(3) the affidavit was not attached to the warrant. Gahagan, 865 F.2d at 1497. Nevertheless, this

Court held that the defective warrant was cured not only by reference to the affidavit, which was

available at the scene, but also by facts known to the executing officer that were not specifically

stated in the affidavit or warrant. Id. at 1498. The Gahagan court also emphasized that the applicant

officer was at the scene and the supporting affidavit was available throughout the search; as such,

there was little danger that the officers misunderstood the scope of their authority.


       We conclude that the affidavits of Parrish and Williams were sufficiently incorporated into

the warrant to search the Sanders’ residence. The facts of this case closely resemble those in

Blakeney, and they provide a greater justification for the application of the cure by incorporation

principle than the facts in Gahagan. The search warrant obtained by Parrish incorporates his

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affidavit on its face (“that there is probable and reasonable cause for the issuance of this Search

Warrant as set out in the affidavit attached hereto and made a part hereof as if fully set forth

herein”). Parrish’s affidavit then references Williams’ affidavit, the curative document (“Larry

Williams . . . an adult, who inside the residence, and did give this officer an affidavit to this effect.”).

While Parrish’s specifically incorporated affidavit does not clearly incorporate Williams’ affidavit,

the Blakeney court clearly ruled that where the curative affidavit is not expressly incorporated in the

warrant but is referenced in another incorporated affidavit, the warrant should be read in light of

both affidavits. Blakeney, 942 F.2d at 1024.


        In addition, the curative documents describe with particularity the items to be seized. The

Williams affidavit, upon which the Parrish affidavit expressly relied, specifically stated that he had

seen marijuana plants growing in Sanders’s home. This description remedies the deficient

description of the items to be seized in the search warrant, as it makes clear that marijuana plants

were the items to be seized (“I saw what appeared to be at least 30 marijuana plants. I have seen

marijuana plants before. These are definitely marijuana plants.”).


                                         III. CONCLUSION


        For the reasons stated, we hold that the cure by incorporation principle operates to remedy

the deficiencies on the face of the search warrant obtained by Parrish. Therefore, we hold that the

Law Enforcement Officers did not violate the Fourth Amendment rights of Sanders in executing the

search warrant at issue in this case. We therefore reverse the district court’s denial of qualified

immunity to the Law Enforcement Officers. The case is remanded to the district court for

proceedings consistent with this opinion.

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