                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 13-4407
                                       ___________

                                      JOHN HART;
                                     JILL PIZZOLA,
                                                      Appellants

                                             v.

                                 KATHRYN GORDON,
                     Individually and In Her Official Capacity as a
                Detective for the City of Philadelphia Police Department
                      ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2-11-cv-06875)
                       District Judge: Honorable Stewart Dalzell
                      ____________________________________

                       Submitted under Third Circuit LAR 34.1(a)
                                   October 30, 2014


   Before: MCKEE, Chief Judge, GREENAWAY, JR. and KRAUSE, Circuit Judges

                                (Filed: November 6, 2014)



                                        OPINION*

KRAUSE, Circuit Judge.

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       John Hart and Jill Pizzola (collectively “Appellants”) appeal the grant of summary

judgment to Philadelphia Police Detective Kathryn Gordon on their Fourth and Fifth

Amendment claims, stemming from Gordon’s magistrate-approved search of Hart’s

apartment.1 We affirm because Gordon was entitled to qualified immunity on the Fourth

Amendment claim, and because the Fifth Amendment claim is meritless.2

       The doctrine of qualified immunity protects government officials from private suit

when their conduct “does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known,”3 and protects those officials who make

“reasonable but mistaken judgments about open legal questions.”4 When addressing

qualified immunity, we ask “whether a defendant’s conduct violated a [person’s]

statutory or constitutional rights” and whether “the unlawfulness of the conduct should

have been apparent to an objectively reasonable official.”5 A district court has the

discretion to decide which prong to address first.6 Here, the District Court found that no

constitutional right was violated, ending the inquiry. Nevertheless, given the doctrine’s

       1
          We have jurisdiction to hear the appeal under 28 U.S.C § 1291. We exercise
plenary review over a district court’s grant of summary judgment. S.E.C. v. Hughes
Capital Corp., 124 F.3d 449, 452 (3d Cir. 1997). Because we write for the parties, we
recite only those facts necessary to our conclusion.
        2
          Though the District Court found that no Fourth Amendment violation occurred,
and thus did not reach the issue of qualified immunity, “[w]e may affirm . . . for any
reason supported by the record.” Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir. 2011)
(citing United States v. Agnew, 407 F.3d 193, 196 (3d Cir. 2005)).
        3
          Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), quoted in Pearson v. Callahan,
555 U.S. 223, 231 (2009).
        4
          Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011).
        5
          Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014).
        6
          Pearson, 555 U.S. at 236.
                                              2
important purpose of protecting innocent government officials from the burden of

unwarranted lawsuits,7 we take the reverse approach, and first examine Gordon’s

conduct. Such an inquiry demonstrates that immunity was warranted.

       The Fourth Amendment requires that a warrant must be based upon probable

cause and must “particularly describ[e] the place to be searched, and the persons or things

to be seized.”8 When, as here, a Fourth Amendment suit brought against a police officer

is based on a “search or seizure pursuant to a warrant, the fact that a neutral magistrate

has issued a warrant is the clearest indication that the officer[] acted in an objectively

reasonable manner or, as [the Supreme Court has] sometimes put it, in objective good

faith.”9 Once a magistrate has issued the warrant, only a “narrow exception” to qualified

immunity applies,10 when “it is obvious that no reasonably competent officer would have

concluded that a warrant should issue.”11

       Gordon’s conduct does not meet the high threshold for such an exception.12

Responding to allegations of rape, kidnapping, assault, identity theft, and ongoing

harassment against Hart, Gordon prepared a detailed affidavit for a search warrant of his

       7
         See, e.g., Wright v. City of Phila., 409 F.3d 595, 599 (3d Cir. 2005) (“The
primary purpose of affording public officials the privilege of qualified immunity, thus
insulating them from suit, is to protect them ‘from undue interference with their duties
and from potentially disabling threats of liability.’”) (quoting Elder v. Holloway, 510
U.S. 510, 514 (1994)).
       8
         U.S. Const. amend. IV.
       9
         Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012) (citations and internal
quotation marks omitted)
       10
          Id. at 1246.
       11
          Malley v. Briggs, 475 U.S. 335, 341 (1986).
       12
          See Messerschmidt, 132 S. Ct. at 1245.
                                               3
residence. The search warrant itself, also approved by the Philadelphia District

Attorney’s Office, was broader and did not mention items that Gordon eventually seized,

such as Hart’s computer. 13 While the probable cause section of the warrant incorporated

the affidavit, the section listing the items to be searched did not.

       After the magistrate approved the warrant, Gordon executed her search with two

other officers, seizing possessions that were contemplated in the affidavit. Thus, to the

extent the failure to incorporate the affidavit left the warrant impermissibly overbroad,

Gordon’s narrower, unincorporated affidavit permissibly modified it, because the actual

search that occurred was “restricted to the narrower scope of the affidavit,” rather than

the more generalized warrant.14 In sum, given the government attorney’s and

magistrate’s approval of the warrant, the search’s restriction to the items in the

particularized affidavit, and Gordon’s consistent deposition testimony, it is clear that

Gordon acted reasonably. As such, she was entitled to qualified immunity.

       Even were we to reach the merits of the claim, we would affirm the District

Court’s finding that no constitutional right was violated. In addition to their argument

that the search warrant was impermissibly overbroad, Appellants argue that Gordon’s

failure to give Pizzola the warrant and affidavit during the search rendered it



       13
          See United States v. Katzin, No. 12-2548, 2014 WL 4851779, at *13 (3d Cir.
Oct. 1, 2014) (en banc) (noting that we apply an officer’s “reliance on government
attorneys in our good faith calculus”).
       14
          United States v. Tracey, 597 F.3d 140, 149 (3d Cir. 2010) (citing Doe v.
Groody, 361 F.3d 232, 240 (3d Cir. 2004)).
                                             4
unconstitutional. 15 This does not change our analysis, as “neither the Fourth Amendment

nor Federal Rule of Criminal Procedure 41” requires that “the executing officer . . .

present the property owner with a copy of the warrant before conducting his search.”16

       Hart also argues that Gordon’s subsequent search of the hard drive of his computer

was unconstitutional. We disagree. We have recognized that “because criminals can—

and often do—hide, mislabel, or manipulate files to conceal criminal activity, a broad,

expansive search of the hard drive may be required.”17 While a broad search of a hard

drive still may, in some cases, be overbroad,18 Hart points to nothing in the record

indicating that an overbroad search actually occurred. Accordingly, even if Gordon were

not entitled to qualified immunity, no Fourth Amendment violation occurred, and the

District Court correctly dismissed the claim.

       Finally, Appellants’ Fifth Amendment Takings Clause claim fails, as well. Hart

argues that the City took some of his items and never returned them, and thus, a Fifth

Amendment taking occurred. Pizzola goes a step further and alleges that because Gordon

copied some of her papers and has not given her back those copies, she too has a Takings

       15
           Pizzola was staying in the apartment at the time, and had her possessions in bags
in the apartment. Some of the belongings seized were hers.
        16
           United States v. Grubbs, 547 U.S. 90, 98-99 (2006) (citations omitted); see also
Tracey, 597 F.3d at 146 n.5 (“Of course, the Fourth Amendment does not require the
officer to provide a copy of the warrant to the subject before he conducts the search.”);
United States v. Cazares-Olivas, 515 F.3d 726, 730 (7th Cir. 2008) (holding that
“whatever the most prudent course may be, the fourth amendment does not require
officers to have a warrant in hand when searching”). Only Pizzola could have been given
the documents. Hart was imprisoned at the time.
        17
           United States v. Stabile, 633 F.3d 219, 237 (3d Cir. 2011).
        18
           See id.
                                               5
Clause claim. However, no viable Takings Clause claim occurs when property has been

seized pursuant to a lawful search warrant.19 Instead, the limits on the police power

within this context come from the Due Process Clause,20 a claim that is not raised here.

       Because we conclude that Gordon is entitled to qualified immunity and that no

taking occurred, we affirm the order of the District Court.




       19
          See, e.g., Johnson v. Manitowoc Cnty., 635 F.3d 331, 336 (7th Cir. 2011)
(holding that a “Takings Clause claim is a non-starter” when property is retained or
damaged pursuant to the police power); Lawmaster v. Ward, 125 F.3d 1341, 1351 (10th
Cir. 1997) (finding no viable Takings Clause claim after police allegedly ransacked
home).
       20
          See AmeriSource Corp. v. United States, 525 F.3d 1149, 1154 (Fed. Cir. 2008).
                                            6
