Doe v. Groody

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Precedential or Non-Precedential: Precedential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.
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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