                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-19-2004

Doe v. Groody
Precedential or Non-Precedential: Precedential

Docket No. 02-4532




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"Doe v. Groody" (2004). 2004 Decisions. Paper 886.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/886


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                       PRECEDENTIAL             Joseph Groody; Adam Bermodin;
                                                  Robert Phillips; Robert Bruce,
   UNITED STATES COURT OF
          APPEALS                                                Appellants
    FOR THE THIRD CIRCUIT


            No. 02-4532                          On Appeal from the United States
                                                           District Court
                                              for the Middle District of Pennsylvania
   JOHN DOE, Parent and Natural                    (Dist. Court No. 00-cv-00356)
  Guardian of Mary Doe, a minor;                District Judge: Honorable James F.
    JANE DOE, Parent and Natural                            McClure, Jr.
  Guardian of Mary Doe, a minor,
and in her own right; RICHARD DOE

                                                   Argued: September 15, 2003
                  v.
                                                  Before: ALITO, AMBRO and
   JOSEPH GROODY; MICHAEL                         CHERTOFF, Circuit Judges.
AULENBACH; ADAM BERMODIN;
  SUSAN JONES; BOROUGH OF                            (Filed March 19, 2004)
 ASHLAND; ROBERT PHILLIPS;
     JEFFREY WALCOTT; R. P.
    SCHAEFFER; BOROUGH OF
   SCHUYLKILL HAVEN; JACK                    Andrew A. Solomon (Argued)
      SHEARIN; BOROUGH OF                    2 Long Lane
 FRACKVILLE; ROBERT BRUCE,                   Malvern, PA 19355
Office of the Attorney General, Bureau
  of Narcotics Investigation (BNI),          John M. Dodig
  Commonwealth of Pennsylvania;              Master, Weinstein, Schnoll & Dodig
OFFICE OF ATTORNEY GENERAL,                  1818 Market Street, Suite 3620
     BUREAU OF NARCOTICS                     Philadelphia, PA 19103
      INVESTIGATION (BNI),
       COMMONWEALTH OF                             Counsel for Appellees
 PENNSYLVANIA; SCHUYLKILL
 COUNTY DRUG TASK FORCE,                     John G. Knorr, III, Esq. (Argued)
         County of Schuylkill                15th Floor
                                             Office of Attorney General of
                                             Pennsylvania

                                         1
Department of Justice                             entitled to qualified immunity.
Strawberry Square
                                                                       I.
Harrisburg, PA 17120
                                                         On March 6, 1998, as the result of
       Counsel for Appellants                     a long-term investigation of John Doe for
                                                  suspected narcotics dealing, officers of the
                                                  Schuylkill County Drug Task Force
                                                  (“Task Force”) sought a search warrant for
      OPINION OF THE COURT                        Doe and his residence.1 The typed
                                                  affidavit in support of the warrant
                                                  application stated, in pertinent part, that a
CHERTOFF, Circuit Judge.                          reliable confidential informant had
       Four police officers appeal from the       purchased methamphetamine on several
denial of qualified immunity in a lawsuit         occasions from John Doe, at Doe’s
alleging the unlawful search of occupants         “residence/office,” or from a Volkswagen
of a residence in Schuylkill County,              automobile parked in front. In addition,
Pennsylvania. The officers argue that they        the affidavit noted that individuals with
did not violate clearly established federal       histories of prior narcotics use or with
constitutional rights when they searched a        drug gang affiliations had been observed
mother and her ten year old daughter in           by Task Force members entering or
the course of executing a search warrant          leaving John Doe’s residence. Finally, the
for narcotics at their home.                      affidavit indicated that the most recent
                                                  methamphetamine purchase by the
       The appeal turns on the scope of
                                                  informant had occurred within the
search authorized by the warrant. To
                                                  preceding 48 hours.
resolve this issue, we must consider under
what circumstances the scope of a warrant                 The typed affidavit requested
may be expanded by looking to the                 permission to search John Doe’s residence
accompanying affidavit. We hold it to be          and his Volkswagen for drugs,
clearly established that unless a search          paraphernalia, money, drug records and
warrant specifically incorporates an              other evidence. Additionally, the affidavit
affidavit, the scope of the warrant may not       stated:
be broadened by language in that affidavit.
                                                         The search should also
We also conclude that, under any
reasonable reading, the warrant in this
case did not authorize the search of the
                                                         1
mother and daughter, and that the search                  We refer to the family in question
was not otherwise justified. Accordingly,         as Doe because they filed their case under
we will affirm the District Court’s               that name, although the actual names of
determination that the officers are not           family members are disclosed in the
                                                  record.

                                              2
include all occupants of the                 . the residence of [John
residence as the information                 Doe] and all occupants
developed shows that [Doe]                   therein.
has frequent visitors that
                                      ¶¶ 17, 20, & 21.
purchase methamphetamine.
These persons may be on                      The typed affidavit was signed on
the premises at the time of           the last page by a police officer, under
the execution of the search           whose signature was the entry: “Sworn
warrant and many attempt to           and subscribed before District Justice
conceal controlled                    James R. Ferrier 21-3-03, this 6th of March
substances on their persons.          1998.”     Under the legend was the
                                      Magistrate’s signature, followed by the
            . . .
                                      phrase “Issuing Authority” and the
This application seeks                impression of a rubber stamp.
permission to search all
                                              The warrant was attached to a
occupants of the residence
                                      separate printed face sheet, entitled
and their belongings to
                                      “Search Warrant and Affidavit.” That
prevent the removal,
                                      form contained boilerplate introductory
concealment, or destruction
                                      language, followed by open blocks for
of any evidence requested in
                                      someone to type information. The first
this warrant.      It is the
                                      block asked for the identity of the “items
experience of your co-
                                      to be search for and seized.”           The
affiants that drug dealers
                                      following blocks asked, in turn, for a
often attempt to do so when
                                      “[s]pecific description of premises and/or
faced with impending
                                      persons to be searched”; the “[n]ame of
apprehension and may give
                                      owner, occupant or possessor of said
such evidence to persons
                                      premises to be searched”; a description of
who do not acutally reside
                                      the nature and date of the statutory
or own/rent the premises.
                                      violations; and for the basis of “[p]robable
This is done to prevent the
                                      cause belief.” Finally, the printed face
discovery of said items in
                                      sheet contained a space to delineate the
hopes that said persons will
                                      results of the search, to be completed after
not be subject to search
                                      the warrant was executed.
when police arrive.
                                              These printed blocks were
            . . .
                                      completed. In response to the questions
As a result of the                    “[d]ate of violation” and “[p]robable cause
information developed, your           belief,” the face sheet specifically referred
affiant requests that a search        to the typed affidavit of probable cause
warrant . . . be issued for . .       attached to the warrant. But in answering

                                  3
the question “[s]pecific description of                      John and Jane Doe filed a
premises and/or persons to be searched,”             complaint under 42 U.S.C. § 1983 on their
the attached typed affidavit was not                 own behalf, and on behalf of Mary Doe,
mentioned. Rather, the form contained a              against the searching officers and their
typewritten entry naming only John Doe,              superiors, and against various government
giving his description, date of birth and            entities. The Does alleged, among other
social security number, and identifying              things, that the officers illegally strip
and describing John Doe’s residence.                 searched Jane and Mary Doe. After
                                                     preliminary litigation skirmishing, a
       The printed warrant and affidavit
                                                     number of claims and parties were
face sheet was signed by the same police
                                                     dismissed, and discovery was conducted.
officer and “issuing authority” who had
                                                     Cross motions for summary judgment
signed the underlying typed affidavit.
                                                     were filed. One of these was a motion by
        Armed with the warrant, Task                 individual police officers for summary
Force police went to the John Doe house              judgment rejecting the strip search claim
to carry out the search. Evidently, they             on the ground of qualified immunity. The
anticipated encountering females because             District Court granted the motion for two
they enlisted a female traffic meter patrol          officers, but denied qualified immunity to
officer to be available if necessary to assist       officers Joseph Groody, Adam Bermodin,
in the search. As the officers approached            and Robert Phillips and Agent Robert
the house, they met John Doe, and brought            Bruce, the four Task Force officials who
him into the house. Once inside, however,            were directly involved in the search of
the officers found no visitors, but only             Jane Doe and Mary Doe. The District
John Doe’s wife, Jane, and their ten year            Judge also granted partial summary
old daughter, Mary.                                  judgment against those four officers on
                                                     the issue of liability.
       The officers decided to search Jane
and Mary Doe for contraband, and sent for                   The four Task Force officers appeal
the meter patrol officer. When she                   the denial of summary judgment based on
arrived, the female officer removed both             qualified immunity.
Jane and Mary Doe to an upstairs
                                                                        II.
bathroom. They were instructed to empty
their pockets and lift their shirts. The                     We have jurisdiction over that
female officer patted their pockets. She             portion of the District Court’s decision
then told Jane and Mary Doe to drop their            rejecting the claim of qualified immunity
pants and turn around. No contraband                 by the four officers. Although the
was found. With the search completed,                litigation below is far from concluded, a
both Jane and Mary Doe were returned to              denial of qualified immunity that turns on
the ground floor to await the end of the             an issue of law—rather than a factual
search.                                              dispute—falls within the collateral order


                                                 4
doctrine that treats certain interlocutory         judgment record, drawing all inferences in
decisions as “final” within the meaning of         favor of the plaintiff. Behrens, 516 U.S.
28 U.S.C. § 1291. Behrens v. Pelletier,            at 309; Torres, 163 F.3d at 170. Second,
516 U.S. 299, 307, 313 (1996); Mitchell v.         if we believe that a constitutional violation
Forsythe, 472 U.S. 511, 525 (1985); In re          did occur, we must consider whether the
Montgomery County, 215 F.3d 367, 373               right was “clearly established.” Saucier,
(3d Cir. 2000).         All parties here           533 U.S. at 201; see Groh v. Ramirez, 540
acknowledge, and we agree, that there is           U.S. , No. 02-811, slip op. at 12 (U.S.
no genuine issue of fact that relates to the       filed Feb. 24, 2004).2 The question is
qualified immunity issue that is being             “whether it would be clear to a reasonable
appealed. Accordingly, we may decide               officer that his conduct was unlawful in
this appeal. Our review of this legal issue        the situation he confronted.” Id. at 202.
is plenary. Eddy v. V.I. Water and Power           This is an objective inquiry, to be decided
Auth., 256 F.3d 204, 208 (3d Cir. 2001);           by the court as a matter of law.
Torres v. McLaughlin, 163 F.3d 169, 170            Bartholomew v. Pennsylvania, 221 F.3d
(3d Cir. 1998).                                    425, 428 (3d Cir. 2000).
        Qualified immunity protects law                                III.
enforcement officers from being tried for
                                                           The constitutional violation at issue
actions taken in the course of their duties.
                                                   here arises under Jane and Mary Doe’s
If the immunity applies, it entitles the
                                                   Fourth (and Fourteenth) Amendment
officer to be free of the “burdens of
                                                   rights to be free of unreasonable searches
litigation.” Mitchell, 472 U.S. at 526. But
                                                   and seizures.3 Both Jane and Mary Doe
the immunity is forfeited if an officer’s
                                                   were physically removed to the bathroom
conduct violates “clearly established
statutory or constitutional rights of which
a reasonable person would have known.”                    2
                                                            Groh, which bears heavily on this
Wilson v. Layne, 526 U.S. 603, 614                 case, was decided well after this case was
(1999) (quoting Harlow v. Fitzgerald, 457          briefed and argued. That decision has not
U.S. 800, 818 (1982)). To determine in             altered the law that previously applied in
this case whether the officers have lost           this area.
their immunity, we must engage in a two
                                                          3
step analysis. First, we must decide                         Because the Fourth Amendment
“whether a constitutional right would have         (as incorporated into the Fourteenth)
been violated on the facts alleged . . . .”        furnishes the “explicit textual source” for
Saucier v. Katz 533 U.S. 194, 200 (2001).          the constitutional protection against
Because we consider an appeal by the               unlawful searches and seizures, we look to
officers from the denial of their motion for       it, rather than more general notions of due
summary judgment, we must evaluate the             process, in analyzing the claim of
undisputed facts based on the summary              constitutional violation.     Albright v.
                                                   Oliver, 510 U.S. 266, 273 (1994).

                                               5
of their house and detained there for a            simply does not address the non-protective
period of time. They were asked to                 body search that is before us in this matter.
remove or shift articles of clothing and
                                                          A non-protective search must
were visually inspected and touched by a
                                                   normally be supported by probable cause,
female officer who was searching for
                                                   and, with certain exceptions, must be
contraband. Later, they were moved to the
                                                   authorized by a warrant. The officers
ground floor and detained there during the
                                                   principally argue that the search of both
balance of the house search.
                                                   females was covered by the warrant for
       The nature of the intrusion alleged         the search of the house and was supported
is significant. In Leveto v. Lapina, 258           by probable cause. If a warrant did indeed
F.3d 156, 172-75 (3d Cir. 2001), this              authorize a search of Jane and Mary Doe,
Court held that, as of 2001, it was unclear        then the officers were entitled to rely upon
whether police searching a premises could          it to satisfy the probable cause
permissibly detain those present or “frisk”        requirement, and there was no
them for protective purposes. But the              constitutional violation.4 United States v.
facts here are different than those in             Leon, 468 U.S. 897, 922 (1984).
Leveto. Although Jane and Mary Doe
                                                          The face of the search warrant here,
were detained during the course of the
                                                   however, does not grant authority to
search in this case, the District Court
                                                   search either Jane or Mary Doe. The
denied qualified immunity for the search,
                                                   block designated for a description of the
not the detention. Insofar as Leveto
                                                   person or place to be searched specifically
discusses detention, therefore, it is
                                                   names John Doe, and identifies and
irrelevant to this issue. Similarly, neither
                                                   describes his residence. Nothing in that
the Does nor the officers contend that the
                                                   portion of the printed warrant refers to any
search here was a protective “frisk” or
                                                   other individual, named or unnamed, to be
search for weapons that is justified on less
                                                   searched.      Seeking to remedy this
than full probable case. See Terry v.
                                                   omission, the officers argue that the
Ohio, 392 U.S. 1, 16, 25-30 (1968);
                                                   warrant should be read in light of the
Leveto, 258 F.3d at 163-64. Rather, the
                                                   accompanying affidavit which requested
officers concede that Jane and Mary Doe
                                                   permission to search “all occupants” of the
were searched for possible evidence or
contraband, and not because they were
viewed as possibly armed or dangerous.
                                                          4
Indeed, it is difficult to conceive how the                  Of course, that reliance
search of a ten-year old child in these            presupposes that there is no deliberate
circumstances could be justified as part of        material misrepresentation in the
a “protective sweep.”          Because the         supporting affidavit.     See Franks v.
decision in Leveto concerned the special           Delaware, 438 U.S. 154, 155 (1978).
rules governing protective searches, it            There is no allegation of such a
                                                   misrepresentation in this case.

                                               6
residence. They conclude that the warrant          incorporate the affidavit. Bartholomew,
should be read in “common sense”                   which the officers invoke, makes this very
fashion, as supplemented by the affidavit.         point. In that case, we observed that
If that contention is correct, then police         “‘[w]hen a warrant is accompanied by an
had legal authority to search anybody that         affidavit that is incorporated by reference,
they encountered inside the house when             the affidavit may be used in construing the
they came to execute the warrant.                  scope of the warrant.’” Id. at 428 (quoting
                                                   United States v. Johnson, 690 F.2d 60, 64-
       To be sure, a warrant must be read
                                                   65 (3d Cir. 1982), cert. denied, 459 U.S.
in a common sense, non-technical fashion.
                                                   1214 (1983)). We dwelled at some length
United States v. Ventresca, 380 U.S. 102,
                                                   on the importance of making that
109 (1965). But it may not be read in a
                                                   incorporation clear. Id. at 428 & n.4
way that violates its fundamental
                                                   (citing cases). The Supreme Court has
purposes. As the text of the Fourth
                                                   very recently re-emphasized this point in
Amendment itself denotes, a particular
                                                   Groh. 540 U.S. at , slip op. at 6.
description is the touchstone of a warrant.
U.S. Const. amend. IV. The requirement                     In this case, there is no language in
of a particular description in writing             the warrant that suggests that the premises
accomplishes three things.         First, it       or people to be searched include Jane Doe,
memorializes precisely what search or              Mary Doe, “all occupants” or anybody
seizure the issuing magistrate intended to         else, save John Doe himself. Other
permit. Second, it confines the discretion         portions of the face sheet which describe
of the officers who are executing the              the date of the violation and the
warrant. Marron v. United States, 275              supporting probable cause do refer to the
U.S. 192, 196 (1927). Third, it “inform[s]         attached typed affidavit. But this fact is
the subject of the search what can be              actually unhelpful to the officers, since it
seized.” Bartholomew, 221 F.3d at 429.             demonstrates that where the face sheet was
For these reasons, although a warrant              intended to incorporate the affidavit, it
should be interpreted practically, it must         said so explicitly. As a matter of common
be sufficiently definite and clear so that         sense, as well as logic, the absence of a
the magistrate, police, and search subjects        reference to the affidavit must therefore be
can objectively ascertain its scope. See           viewed as negating any incorporation of
Groh, 540 U.S. at __, slip op. at 5.               that affidavit.5
       As the officers correctly observe, it
is perfectly appropriate to construe a                    5
                                                            At oral argument, counsel for the
warrant in light of an accompanying                officers suggested that the signature of the
affidavit or other document that is                Magistrate under the oath line on the
incorporated within the warrant. But to            affidavit somehow converted the affidavit
take advantage of this principle of                into a warrant. But counsel conceded that
interpretation, the warrant must expressly         there is nothing in the record to support

                                               7
       We recognize that there are                  the language of the warrant is inconsistent
decisions in which an affidavit has been            with the language of the affidavit, because
used to save a defective warrant even               the former does not grant what the latter
when it has not been incorporated within            sought—permission to search “all
that warrant. But the cases fall into two           occupants” of the house. That is not a
categories. The first embraces those                discrepancy as to form; it is a difference as
circumstances in which the warrant                  to scope. And it is a difference of
contains an ambiguity or clerical error that        significance. A state magistrate reviewing
can be resolved with reference to the               a search warrant affidavit might well draw
affidavit. In these situations, it is clear         the line at including unnamed “all
that the requesting officers and the                occupants” in the affidavit because
magistrate agreed on the place to be                Pennsylvania law disfavors “all occupant”
searched or item to be seized, but there is         warrants. See Commonwealth v. Gilliam,
an obvious ministerial error in                     560 A.2d 140, 142 (Pa. 1989). Thus, the
misidentifying or ambiguously identifying           circumstances of this warrant are a far cry
the place or item. See, e.g., United States         from those in the category of warrants
v. Ortega-Jimenez, 232 F.3d 1325, 1329              which can be “clarified” by a separate
(10th Cir. 2000) (ambiguous term); United           affidavit.
States v. Simpson, 152 F.3d 1241, 1248
                                                           The second category of decisions in
(10th Cir. 1998) (internal inconsistency in
                                                    which an unincorporated affidavit has
warrant). Reliance on the affidavit in
                                                    been read to modify a search warrant is
these circumstances neither broadens nor
                                                    constituted by cases in which the affidavit
shrinks the scope of the warrant, but
                                                    is particularized but the warrant is
merely rectifies a “[m]inor irregularit[y].”
                                                    overbroad. See, e.g., United States v.
United States v. Johnson, 690 F.2d at 65
                                                    Bianco, 998 F.2d 1112, 1116-17 (2d Cir.
n.3 (quoting Ventresca, 380 U.S. at 108).
                                                    1993); United States v. Towne, 997 F.2d
        The omission of Jane Doe, Mary              537, 547 n. 5 (9th Cir. 1993) (discussing
Doe, or “all occupants” from the warrant            cases). So long as the actual search is
in this case cannot be viewed as the sort of        confined to the narrower scope of the
ambiguity or misidentification error that           affidavit, courts have sometimes allowed
can be clarified by inspecting the affidavit.       the unincorporated affidavit to “cure” the
This warrant has no ambiguous or                    warrant, id., or at least have treated the
contradictory terms on its face. Rather,            excessive elements of the warrant as
                                                    harmless surplusage, see United States v.
                                                    Stefonek, 179 F.3d 1030, 1033-34 (7th
the notion that, by witnessing the affiant’s        Cir. 1999).6
oath, the judge intended to convert the
police officer’s wish into a judicial
                                                           6
command. Without some support for this                     For the same reasons, this Court
strained contention, we decline to adopt it.        has upheld redaction as a means of

                                                8
        Commonwealth v. Carlisle, 534                         The warrant provides the license to
A.2d 469 (Pa. 1987), cited by the officers         search, not the affidavit. Cases such as
on this appeal, is a good example. There,          Bianco, Towne and Carlisle may allow us
the police searched a specific apartment at        to rescue an overbroad warrant if the
an address. The affidavit identified the           police forbear from exercising the full
apartment number and street address, but           measure of its excessive scope. It does not
the search warrant only mentioned the              follow that we can rescue an overbroad
street address. Noting that the officers had       search if the police exceed the full
only searched the specific apartment for           measure of the warrant. Bluntly, it is one
which they had requested the warrant, the          thing if officers use less than the authority
Supreme Court of Pennsylvania held that            erroneously granted by a judge. It is quite
the arguably overbroad scope of the                another if officers go beyond the authority
warrant should be read narrowly in light of        granted by the judge. Were we to adopt
the affidavit. In other words, the warrant         the officers’ approach to warrant
clearly authorized the search of the               i n t e r p re t a t io n , a n d a l l o w a n
specific apartment and, perhaps, too much          unincorporated affidavit to expand the
more. Since the police limited themselves          authorization of the warrant, we would
to the narrow search—which was clearly             come dangerously close to displacing the
permitted by the warrant and supported by          critical role of the independent magistrate.
the affidavit—the affidavit was permitted
                                                          This point was reemphasized
to narrow the scope of the warrant.
                                                   forcefully this term by the Supreme Court
Tellingly, the court observed that had the
                                                   in Groh v. Ramirez. In Groh, the Bureau
police searched more broadly, the fruits of
                                                   of Alcohol, Tobacco and Firearms
that search would have been suppressed.
                                                   completed an application and affidavit that
Id. at 472.
                                                   detailed with specificity that the agents
       In the case we consider now,                sought to search for and seize a cache of
however, the circumstances are precisely           firearms suspected to be located at the
the reverse of the preceding category of           home of Joseph Ramirez. Groh, 540 U.S.
“cure” cases. Here, the affidavit is               at __, slip op. at 2. The warrant was less
broader than the warrant, and the police in        specific. In the portion of the printed
fact searched more broadly than the                warrant form “that called for a description
warrant. Unlike Carlisle, then, the officers       of the ‘person or property’ to be seized,”
seek to use the affidavit to expand, rather        the agents identified the location to be
than limit, the warrant. That makes all the        searched, but neither listed the items to be
difference.                                        seized nor “incorporate[d] by reference the
                                                   itemized list contained in the application.”
                                                   Id. The warrant did refer to the affidavit
narrowing a warrant. United States v.              by reciting that the Magistrate was
Christine, 687 F.2d 749, 759-60 (3d Cir.           satisfied that the affidavit established
1982).

                                               9
probable cause to believe that contraband                   In Groh, as here, the warrant
was concealed on the premises. Id. On                expressly referred to the affidavit in
the authority of the warrant, the Bureau             affirming the existence of probable cause,
searched Ramirez’s house. Id. at 3. The              but not in describing what was to be
Bureau did not seize anything, nor were              searched and seized. Id. at 2-3.
any charges filed against Ramirez.7 Id.
                                                             In Groh, as here, the M agistrate
Ramirez sued Groh and the other officers
                                                     reviewed the warrant and affidavit, and did
for a Fourth Amendment violation.
                                                     not alter the warrant before signing it.
       The facts in Groh were strikingly
                                                             On these facts, the Supreme Court
similar to those in this case:
                                                     held the search warrant invalid. Id. at 11.
       In Groh, as here, the agents                  The Court’s reasoning turned precisely on
submitted an application and affidavit that          the sharp distinction the law draws
detailed what they wanted to search and to           between what is authorized in a warrant,
seize. Id. at 2.                                     and what is merely an application by the
                                                     police. Id. at 5-6. The Court recognized
       In Groh, as here, the affidavit
                                                     that the application and affidavit contained
sought to supply probable cause to search
                                                     an adequate description of the items to be
for, and seize, those listed items. Id.
                                                     seized, but observed that because neither
       In Groh, as here, the warrant form            was incorporated by reference into the
was prepared by the officer who wrote the            warrant description of “‘persons or
affidavit, and who presumably intended               property’ to be seized,” their contents were
the warrant to authorize the search and              irrelevant. Id. at 2, 5-6. But the Court
seizure of the items in the affidavit. Id. at        explicitly rejected the argument that one
12.8                                                 could infer that the Magistrate must have
                                                     intended the warrant to authorize the full
       7
                                                     scope of what was sought in the affidavit:
         At the conclusion of the search,
agents provided Ramirez’s wife with a                       [U]nless the particular items
copy of the warrant, though not a copy of                   described in the affidavit are
the application and affidavit, which had                    also set forth in the warrant
been sealed. Agents did provide copies of                   itself . . . there can be no
the relevant portions of the application                    written assurance that the
upon a request by Ramirez’s lawyer,                         Magistrate actually found
however. Groh, 540 U.S. at __, slip op. at
3.
                                                     “[B]ecause petitioner himself prepared the
       8
        Indeed, because the officer who              invalid warrant, he may not argue that he
wrote the affidavit also drafted the warrant         reasonably relied on the Magistrate’s
form, the Supreme Court found the                    assurance that the warrant contained an
defective warrant less justifiable, saying:          adequate description . . . .” Id. at 12.

                                                10
       probable cause to search for,               oversight. And that also makes it all the
       and to seize, every item                    less reasonable to read permission to
       mentioned in the affidavit.                 search them into the text of the warrant.
       ...                                                 We are mindful that search
                                                   warrants and affidavits are often prepared
       The mere fact that the
                                                   under time pressure and should not be
       Magistrate issued a warrant
                                                   subjected to microscopic dissection. But
       does not n ecess arily
                                                   the warrant plays a critical role under the
       establish that he agreed that
                                                   Fourth Amendment. At some point,
       the scope of the search
                                                   flexibility becomes breakage. The warrant
       should be as broad as the
                                                   must be written with objective definition,
       affiant’s request.
                                                   or its scope will not be discernable to
Id. at 8, 9.      That rule disposes of            those who are bound to submit to its
appellants’ reliance on the affidavit here.        authority, whether they are police or
                                                   subjects of the search.        By the same
        Moreover, this case would be a
                                                   token, without a clear reference to the
particularly bad instance in which to allow
                                                   affidavit in the warrant, the former cannot
a broad affidavit to overwhelm a narrow
                                                   simply be assumed to broaden the latter.
warrant. For when we examine the
                                                   Otherwise, we might indeed transform the
affidavit on which the officers rely, it is
                                                   judicial officer into little more than the
doubtful that probable cause exists to
                                                   cliche “rubber stamp.”
support a search of John Doe’s wife and
minor daughter. Paragraphs 17 and                          Finally, we consider whether the
20—which are the provisions seeking to             search of Jane and Mary Doe can be
justify an “all occupants” search—quite            justified on some basis other than the
specifically argue that visitors may be            warrant. The officers have not seriously
present purchasing drugs and that dealers          pressed this argument, but the District
often give contraband to non-residents of          Court did consider whether the officers
a house in the hopes they will not be              had probable cause to search Jane and
searched. We look in vain for any                  Mary Doe under an exception to the
assertion that narcotics dealers often hide        warrant requirement.
drugs on family members and young
                                                           None appears. A search warrant
children. Perhaps they do; but the judge
                                                   for a premises does not constitute a license
reviewing this affidavit would not know it.
                                                   to search everyone inside. Ybarra v.
So, if anything, these paragraphs of the
                                                   Illinois, 444 U.S. 85 (1979). The record
affidavit appear to undermine the probable
                                                   does not disclose any independent basis to
cause to search Jane and Mary Doe. That
                                                   suspect Jane Doe—let alone 10-year old
is all the more reason to doubt that the
                                                   Mary Doe—of drug activity. While the
Magistrate’s failure to include these two
                                                   officers justified their decision to conduct
family members in the warrant was an

                                              11
the personal searches because of the ease           established even if there is ‘no previous
with which contraband could be concealed            precedent directly in point.’” Id. at 162
on those present in the searched premises,          (quoting Good v. Dauphin County Soc.
that is precisely the justification for a           Servs. for Children & Youth, 891 F.2d
personal search that has been rejected by           1087, 1092 (3d Cir. 1989)).
the Supreme Court. Id. at 94-96. Simply
                                                           The principal narrow question in
put, there is none of the kind of
                                                    this case is whether in 1999, when these
“particularized” probable cause required
                                                    searches occurred, it was clearly
for a search in circumstances such as
                                                    established that police could not broaden
these. Id. at 91.
                                                    the scope of a warrant with an
                    IV.                             unincorporated affidavit. We think that a
                                                    review of the cases indicates that it was.
       Having determined that the search
of Jane and Mary Doe violated theFourth                    We begin with the settled
Amendment, what remains is to decide                proposition that the Fourth Amendment
whether this violation transgressed                 “prevents the seizure of one thing under a
“clearly established” rights. The District          warrant describing another.” Marron, 275
Court held that it did, and the officers            U.S. at 196. That is both uncontroverted
argue that the District Court applied the           and long established. As we observed
“clearly established” test at too high a            above, a warrant may be modified by an
level of generality.                                affidavit when it is expressly incorporated
                                                    by reference. We so held as early as our
       We agree that in determining
                                                    1982 decision in United States v. Johnson,
whether a right is “clearly established,” we
                                                    690 F.2d at 64-65. Pennsylvania cases
should analyze the right with specificity.
                                                    agree. See Commonwealth v. Wilson, 631
Bartholomew, 221 F.3d at 429. Where a
                                                    A.2d 1356, 1358 (Pa. Super. Ct. 1993).9
challenged police action presents a legal
                                                    But there is no express incorporation here.
question that is “unusual and largely
heretofore undiscussed,” id. at 429, or
where there is “at least some significant
                                                           9
authority” that lends support of the police                   Wilson specifically held that a
action, Leveto, 258 F.3d at 166, we have            reference to all persons present in an
upheld qualified immunity even while                affidavit cannot be relied upon where it is
deciding that the action in question                not referenced in the warrant: “[T]he
violates the Constitution. On the other             issuing authority neither authorized nor
hand, the plaintiff need not show that              found probable cause for an ‘all persons
there is a prior decision that is factually         present’ warrant. This is clear from a
identical to the case at hand in order to           reading of the warrant. The only reference
establish that a right was clearly                  to such a warrant appears in the affidavit;
established. “A right may be clearly                the warrant itself does not appear to have
                                                    granted the request.” 631 A.2d at 1358.

                                               12
        What is significant is that the              deficient -- i.e., in failing to particularize
officers can point to no precedent that              the place to be searched or the things to be
allowed an unincorporated affidavit to               seized -- that the executing officers cannot
expand a search warrant. Although there              reasonably presume it to be valid.’” Groh,
are decisions that allow unincorporated              540 U.S. at        , slip op. at 13 (quoting
affidavits to clarify or narrow overbroad            Leon, 468 U.S. at 923). The flaw here
warrants, we have explained at                       was every bit as manifest as the omission
considerable length why these are a totally          in the warrant in Groh.
different matter. This is not an arcane or
                                                            Finally, even if an exception to the
legalistic distinction, but a difference that
                                                     warrant requirement did apply, it is clear
goes to the heart of the constitutional
                                                     that the search of Jane and Mary Doe for
requirement that judges, and not police,
                                                     evidence had to be based on probable
authorize warrants. An officer may
                                                     cause, and not on a generalized concern
reasonably rely on a magistrate’s approval
                                                     that those present at a search might hide
of an overbroad warrant because the
                                                     evidence. That principle was established
officer normally should not be penalized
                                                     as early as 1979. Ybarra, 444 U.S. at 94-
for the magistrate’s mistake.            See
                                                     96.
Massachusetts v. Sheppard, 468 U.S. 981,
990 (1984); U.S. v. Ninety-Two Thousand                      Searching Jane and Mary Doe for
Four Hundred Twenty-Two Dollars and                  evidence beyond the scope of the warrant
Fifty Seven Cents, 307 F.3d 137, 152 (3d             and without probable cause violated their
Cir. 2002). But there is no reasonable               clearly established Fourth Amendment
basis for an officer to exceed the scope of          rights. Accordingly, we will affirm the
a warrant just because he asked for                  decision of the District Court rejecting
broader search authority in the affidavit.           qualified immunity for the searches, and
In the latter instance, the officer has not          remand the case for further proceedings
relied on, but has disregarded, the                  consistent with this opinion.
magistrate’s judgment.
       Our decision is fully consistent
with the Supreme Court’s decision in
Groh. There, considering a warrant that
failed to specify items to be seized in a
house that was being searched, the Court
dismissed the contention that omission of
this description was not clearly
unconstitutional, or a good faith error.
Rather, the Court stated: “[A]s we
observed in the companion case to
Sheppard, ‘a warrant may be so facially


                                                13
Doe v. Groody                                      search warrant application sought
                                                   permission to search all occupants of the
No. 02-4532
                                                   premises. Indeed, the affidavit made this
                                                   request in three separate paragraphs.
                                                   Pa r a gr a ph 17, a f t e r a s k i n g f or
ALITO, Circuit Judge, dissenting:
                                                   authorization to search John Doe’s home
                                                   and car, added:
       I would reverse the order of the
District Court and direct that summary
                                                          The search should also
judgment be entered in favor of the
                                                          include all occupants of the
defendants. First, the best reading of the
                                                          residence as the information
warrant is that it authorized the search of
                                                          developed shows that [John
any persons found on the premises.
                                                          Doe] has frequent visitors
Second, even if the warrant did not contain
                                                          t h a t     p u r c h a s e
such authorization, a reasonable police
                                                          methamphetamine. These
officer could certainly have read the
                                                          persons may be on the
warrant as doing so, and therefore the
                                                          premises at the time of the
appellants are entitled to qualified
                                                          execution of the search
immunity.
                                                          warrant and may attempt to
                                                          conceal controlled
                                                          substances on their persons.
                    I.

                                                   App. 498a (emphasis added).
       Search warrants are “normally
drafted by nonlawyers in the midst and
haste of a criminal investigation.” United                Paragraph 20 reiterated that request:
States v. Ventresca, 380 U.S. 102, 108
(1965). Consequently, they are to be read
“in a commonsense and realistic fashion.”                 This application seeks
Id. Here, the “commonsense and realistic”                 permission to search all
reading is that the issuing magistrate                    occupants of the residence
intended to authorize a search of all the                 and their belongings to
occupants of the premises and that the                    p r e v e n t t h e r e m o v a l,
warrant did so. Five points are important                 concealment, or destruction
to keep in mind.                                          of any evidence requested in
                                                          this warrant.

       First, there is no doubt that the
                                                          And paragraph 21 repeated the

                                              14
request a third time:                                warrant and was typed by one of those
                                                     officers. App. 348a. Since the officers
                                                     were seeking permission to search all
       As a result of the                            occupants of the premises, they obviously
       information developed, your                   intended for the draft warrant that they
       affiant requests that a search                submitted to the magistrate to authorize the
       w a r r a n t           f o r                 search of such persons.
       methamphetamine and other
       controlled substances, drug
       paraphernalia, drug records,                         Fourth, the warrant expressly
       monies,        proof        of                incorporated the affidavit with respect to
       residence/ownership,                          the issue that was most critical to the
       documents, photographs,                       request to search all occupants, viz., the
       and weapons be issued for                     issue of probable cause. While probable
       618 Center St. Ashland, Pa.,                  cause to search premises does not
       the residence of [John Doe]                   necessarily provide probable cause to
       and all occupants therein.                    search every person who is found on the
                                                     premises, see Ybarra v. Illinois, 444 U.S.
                                                     85 (1979), if there is probable cause to
App. 498a (emphasis added).                          believe that all of the persons found on the
                                                     premises possess on their persons either
                                                     contraband or evidence of a crime, there is
       Second, the affidavit also clearly            no reason why a warrant authorizing a
attempted to establish probable cause to             search of all such persons should not be
search all occupants of the premises. The            issued. In this case, as noted, the affidavit
two affiants, who had background and                 submitted in support of the warrant
training in drug cases, stated that, in their        application claimed         that there was
experience, drug dealers, when faced with            probable cause to search all such persons,
“impending apprehension,” often give                 and the warrant expressly incorporated that
evidence to other persons present on the             claim.
premises in the hope that “said persons
will not be subject to search when police
arrive” and that this will “prevent the                      Fifth, after the warrant and affidavit
discovery of said items.” See App. 494a.             were reviewed by the District Attorney’s
                                                     office and presented to a magistrate, the
                                                     magistrate carefully reviewed these
       Third, the warrant as drafted was
                                                     documents and signed the warrant without
intended to authorize a search of all
                                                     alteration.
persons on the premises. The warrant was
drafted by the officers who applied for the


                                                15
       Under these circumstances, the                PREMISES     AND / OR   PERSONS     TO    BE
“commonsense and realistic” reading of               SEARCHED.”    App. 493a. In that box, the
the warrant is that it authorized a search of        officers placed the name of John Doe,
all occupants of the premises. It seems              followed by his race, sex, date of birth,
quite clear that the magistrate intended to          hair and eye color, and Social Security
authorize a search of all occupants of the           number. Id. The officers also included the
premises.     As noted, the application              address and a fairly detailed description of
repeatedly requested such authorization              the premises. Id. This information more
and set out facts that the officers (and             than filled the space allotted. Id.
presumably the District Attorney’s office)
regarded as establishing probable cause.
The warrant indisputably incorporated the                   At their depositions, both of the
affidavit with respect to the issue of               officers who signed the affidavit explained
probable cause, and the magistrate signed            why they did not note in the box in
the warrant without alteration. The only             question that the warrant authorized a
reasonable inference is that the magistrate          search of all occupants of the premises.
agreed with the affidavit that there was             They stated that there simply was not room
probable cause to search all occupants of            in that box and that the incorporation of
the premises and that the magistrate                 the affidavit into the warrant (which was
intended to authorize such a search. The             noted in the box entitled “ PROBABLE
magistrate must have understood that the             CAUSE BELIEF IS BASED ON THE FOLLOWING
officers, who had drafted the warrant,               FACTS AND CIRCUMSTANCES” 10 ) was meant
believed that the warrant, if signed, would          to provide a full description of the persons
give them authorization to carry out a               to be searched.11
search of the scope specified in the
application, viz., a search of “all                         10
occupants.” As a result, the magistrate                      The affidavit is also cross-
surely would not have signed the warrant             referenced in the box entitled DATE OF
                                                     VIOLATIONS.” App. 498a.
without modification if the magistrate had
not wished to confer that authority.                        11
                                                               Officer Schaeffer testified that
                                                     John Doe was mentioned in the box at
                                                     issue because he “was the target,” but
       The majority, however, raises a
                                                     Officer Schaeffer added: “As you can see,
formal objection to the warrant. The
                                                     that box is filled. You can’t include
majority contends that the warrant
                                                     everything there.” App. 402a. See also id.
unambiguously limits the persons to be
                                                     at 403a. He stated that the affidavit was
searched to John Doe alone. In reaching
                                                     “part of the search warrant and we include
this conclusion, the majority relies on the
                                                     everything that we want in that affidavit of
entry that the officers placed in the box
                                                     probable cause . . . . It’s impossible to fit
entitled “ SPECIFIC DESCRIPTION OF
                                                     everything we want in these little boxes

                                                16
                                                       For present purposes, however, the
                                              majority attaches no significance to the
                                              entry in the box concerning probable
they give us.” Id. at 402a-03a.
                                              cause. The majority takes the position that
       Officer Phillips gave a similar
                                              the only relevant entry is the one in the box
explanation:
                                              entitled “ SPECIFIC DESCRIPTION OF
               Q. Okay. You’ll
                                              PREMISES AND / OR PERSONS TO BE
       agree with me, sir, that on
                                              SEARCHED.” Because that entry does not
       the face of the warrant it
                                              refer to all occupants of the premises and
       calls, under the heading
                                              does not state that the affidavit is
       “Specific Description of
                                              incorporated for the purpose of specifying
       Premises and/or Persons to
                                              the persons to be searched, the majority
       be Searched” the only
                                              concludes that the warrant does not
       individual named there is
                                              authorize a search of all such persons. The
       [John Doe], is that correct?
                                              majority states that the “warrant has no
               A. That is correct.
                                              ambiguous . . . terms on its face” and that
       And the reason for that is
                                              it is therefore improper to look beyond the
       there’s not enough room in
                                              face of the warrant. Maj. Op. at 8.
       that block to indicate every
       possible name of
       individuals who might be in
                                                      I believe that the majority’s analysis
       the residence to be searched.
                                              is flawed. First and most important, the
       That’s why we extended
                                              majority employs a technical and legalistic
       into the probable cause
                                              method of interpretation that is the
       affidavit, just as the rest of
                                              antithesis of the “commonsense and
       the information is in the
                                              realistic” approach that is appropriate.12
       probable cause affidavit. It
       would not fit on the face
       sheet of this warrant.                        along with an explanation
               Q.     So it’s your                   of what “other occupants”
       testimony that the only                       are, include visitors, family
       reason that the words and                     members.
       other, “and other occupants
       of the residence” do not               App. at 353a.
       appear on the face of the
                                                     12
       search warrant is there’s no                     The majority’s mistaken approach
       room?                                  is further exemplified by its suggestion
               A. There’s no room             that the affidavit does not actually state
       to list all of the occupants           that, in the experience of the affiants, drug
       who may have been in the               dealers “often hide drugs on family
       residence at the time with,            members and young children.” Maj. Op.

                                         17
                                                   Second, the face of the warrant here does
                                                   not unambiguously restrict the persons to
                                                   be searched to John Doe alone. As
at 11. The pertinent paragraph of the
                                                   previously noted, the question whether
affidavit states:
                                                   occupants other than John Doe should be
                                                   searched was closely tied (if not identical)
       This application seeks
                                                   to the question whether there was probable
       permission to search all
                                                   cause to search such persons, and the face
       occupants of the residence
                                                   of the warrant incorporated the affidavit
       and their belongings to
                                                   with respect to the issue of probable cause.
       prevent the removal,
                                                   This incorporation, at the very least,
       concealment, or destruction
                                                   creates a sufficient ambiguity to permit
       of any evidence requested in
                                                   consideration of the affidavit and the
       this warrant.     It is the
                                                   circumstances surrounding the application.
       experience of your co-
       affiants that drug dealers
       often attempt to do so when                         For these reasons, I would hold that
       faced with impending                        the warrant did in fact authorize a search
       apprehension and may give                   of all persons on the premises, including
       such evidence to persons                    Jane and Mary Doe.
       who do not actually reside
       or own/rent the premises.
       This is done to prevent the                        The majority strives to justify its
       discovery of said items in                  decision by invoking the Supreme Court’s
       hopes that said persons will                recent decision in Groh v. Ramirez, No.
       not be subject to search                    02-811(Sup. Ct. Feb. 24, 2004), but Groh
       when police arrive.                         simply does not speak to the question that
                                                   divides this panel, i.e., the degree of
        The commonsense reading of this            technical precision that should be
paragraph is that, in the experience of the        demanded in determining whether a
affiants, drug dealers, when they are about        warrant adequately incorporates an
to be arrested, often give contraband or           attached application or affidavit.
incriminating evidence to other persons
who are on the premises (“occupants”) in
the hope that these persons will not be                   In Groh, law enforcement officers
searched. The majority notes that this             submitted an application for a warrant to
passage does not literally state that              search a ranch for firearms, explosives,
“narcotics dealers often hide drugs on
family members and young children,” but
this is precisely the sort of technical,           interpreting a search warrant or supporting
legalistic reading that is out of place in         affidavit.

                                              18
and records and later carried out a search                warrant. Hence, we need
for these items, but the warrant did not                  not further explore the
state that a search for such items was                    matter of incorporation.
authorized and did not incorporate the
application. Id. at 2. In addition, when
the search was completed, the officers            Id. at 6.
gave one of the owners of the ranch a copy
of the warrant, “but not a copy of the
application, which had been sealed.” Id.                 My disagreement with the majority
at 3 (emphasis added). The Court held that        concerns the question whether the mode of
the warrant was defective because it did          incorporation in this case was adequate,
not particularly describe the type of             and Groh does not speak to this question.
evidence sought. Id. at 5. However, the           Groh merely refers without elaboration to
Court was careful to distinguish the case         “appropriate words of incorporation.” Slip
before it from a case in which a warrant          Op. at 6. In my view, the appropriateness
incorporates another document that                of “words of incorporation” is to be judged
contains such a specification. Id. at 5-6.        by the “commonsense and realistic”
The Court wrote:                                  standard that is generally to be used in
                                                  interpreting warrants.     The majority,
      We do not say that the
                                                  however, reads the warrant in this case
      Fourth Amendment forbids
                                                  almost as if it were a contract subject to
      a warrant from cross-
                                                  the doctrine of contra proferentum. Groh
      referencing               other
                                                  does not justify such an approach.
      documents. Indeed, most
      Courts of Appeals have held
      that a court may construe a
                                                                      II.
      warrant with reference to a
      supporting application or
      affidavit if the warrant uses
                                                         Even if the warrant did not confer
      a p p r o p r ia te w o r d s o f
                                                  such authorization, a reasonable officer
      incorporation, and if the
                                                  certainly could have believed that it did,
      s u p p o r t in g d o c u m e n t
                                                  and therefore the defendants’ motion for
      accompanies the warrant. . .
                                                  summary judgment based on qualified
      . . But in this case the
                                                  immunity should have been granted. See
      warrant did not incorporate
                                                  Anderson v. Creighton, 483 U.S. 635, 640-
      other documents by
                                                  41(1987). Qualified immunity “provides
      reference, nor did either the
                                                  ample protection to all but the plainly
      affidavit or the application
                                                  incompetent or those who knowingly
      (which had been place under
                                                  violate the law.” Malley v. Briggs, 475
      seal) accompany the
                                                  U.S. 335, 341 (1986). See also, e.g.,

                                             19
Saucier v. Katz, 533 U.S. 194, 202 (2001).          searching a child (in a proper manner) if a
The appellants in this case did not exhibit         warrant has been issued and the warrant is
incompetence or a willingness to flout the          not illegal on its face. Because the warrant
law. Instead, they reasonably concluded             in this case authorized the searches that are
that the magistrate had authorized a search         challenged – and because a reasonable
of all occupants of the premises where: (1)         officer, in any event, certainly could have
that is what the application sought; (2) the        thought that the warrant conferred such
affidavit asserted that there was probable          authority – I would reverse.
cause for such a search; (3) the warrant
expressly incorporated the affidavit on the
issue of probable cause, (4) the language
of the warrant was drafted to confer
authorization to search all occupants, and
(4) the magistrate signed the warrant
without modification. In light of the
discussion of these points in part I of this
opinion, it is unnecessary to address them
further here.13
       In sum, the District Court erred in
denying the defendants’ motion for
summary judgment. I share the majority’s
visceral dislike of the intrusive search of
John Doe’s young daughter, but it is a sad
fact that drug dealers sometimes use
children to carry out their business and to
avoid prosecution. I know of no legal
principle that bars an officer from


       13
         The plaintiffs argue that there was
no probable cause to search them, but
whether or not there was probable cause,
when a warrant is issued, officers who
execute the warrant are entitled to
qualified immunity unless "the warrant
application is so lacking in indicia of
probable cause as to render official belief
in its existence unreasonable." Malley v.
Briggs, 475 U.S. at 344-45. That high
standard is not met here.

                                               20
