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Title Doe v. Groody

Date 2004

Subject Other\Dissenting

Contents

Page 1

12 of 79 DOCUMENTS

JOHN DOE, Parent and Natural guardian of Mary Doe, a minor; JANE DOE, Parent and Natural Guardian of Mary Doe, a minor, and in her own right; RICHARD DOE v. JOSEPH GROODY; MICHAEL AULENBACH; ADAM BERMODIN; SUSAN JONES; BOROUGH OF ASHLAND; ROBERT PHILLIPS; JEFFREY WALCOTT; R. P. SCHAEFFER; BOROUGH OF SCHUYLKILL HAVEN; JACK SHEARIN; BOROUGH OF FRACKVILLE; ROBERT BRUCE, Office of the Attorney General, Bureau of Narcotics Investigation (BNI), Commonwealth of Pennsylvania; OFFICE OF ATTORNEY GENERAL, BUREAU OF NARCOTICS INVESTIGATION (BNI), COMMONWEALTH OF PENNSYLVANIA; SCHUYLKILL COUNTY DRUG TASK FORCE, County of Schuylkill, Joseph Groody; Adam Bermodin; Robert Phillips; Robert Bruce, Appellants

No. 02-4532

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

361 F.3d 232; 2004 U.S. App. LEXIS 5247

September 15, 2003, Argued

March 19, 2004, Filed

SUBSEQUENT HISTORY: US Supreme Court certio- rari denied by Groody v. Doe, 2004 U.S. LEXIS 6605

(U.S., Oct. 4, 2004)

PRIOR HISTORY: **1

On Appeal from the United States District Court for the Middle District of Pennsylvania (Dist. Court No. O0- cv-00356) District Judge: Honorable James F. McClure, Jr.

CASE SUMMARY:

PROCEDURAL POSTURE: Appellee parents, on be- half of the mother and their minor child, sued appellant police officers and others under 42 U.S.C.S. § 1983 al- leging, among other things, an illegal strip search. The parties filed cross-motions for summary judgment. The United States District Court for the Middle District of Pennsylvania granted partial summary judgment against the officers on the issue of qualified immunity. The offi- cers sought review.

OVERVIEW: As a result of a long-term investigation of suspected narcotics dealing, officers sought a search warrant for a certain person and his residence. The affi- davit requested search of all occupants of the residence. However, the warrant only specified search of the named person. The affidavit was not incorporated into the de- scription of the premises or persons to be searched. In

executing the warrant, the officers strip searched the sus- pect's wife and minor child for drugs. On appeal, the court affirmed. The warrant did not specifically incorpo- rate the affidavit. Thus, the scope of the warrant could not be broadened by the affidavit. The plain language of the warrant did not authorize the search of the mother and child. The affidavit was broader than the warrant, and the police searched more broadly than the warrant. However, only the warrant provided license to search. Further, there was no independent basis to suspect the mother and child of drug activity, which could have justified the search. Additionally, by exceeding the scope of the warrant, the search violated clearly established Fourth Amendment rights. Thus, the officers were properly denied qualified immunity.

OUTCOME: The court affirmed the district court's de- termination that the officers were not entitled to qualified immunity.

LexisNexis(R) Headnotes

Civil Procedure > Appeals > Appellate Jurisdiction > Collateral Order Doctrine

HN1 A denial of qualified immunity in a suit under 42

U.S.C.S. § 1983 that turns on an issue of law--rather than a factual dispute--falls within the collateral order doctrine that treats certain interlocutory decisions as "final" within the meaning of 28 U.S.C.S. § 1291.

361 F.3d 232, *; 2004 U.S. App. LEXIS 5247, **1

Page 2

Constitutional Law > Civil Rights Enforcement > Immunity > Public Officials

Constitutional Law > Civil Rights Enforcement > Civil

Rights Act of 1871 > Law Enforcement Officials

HN2 Qualified immunity protects law enforcement of- ficers from being tried for actions taken in the course of their duties. If the immunity applies, it entitles the officer to be free of the "burdens of litigation." But the immu- nity is forfeited if an officer's conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.

Constitutional Law > Civil Rights Enforcement > Immunity > Public Officials

Constitutional Law > Civil Rights Enforcement > Civil

Rights Act of 1871 > Law Enforcement Officials

HN3 To determine whether law enforcement officers have lost their immunity, a court must engage in a two step analysis. First, the court must decide whether a con- stitutional right would have been violated on the facts alleged. In an appeal by officers from the denial of their motion for summary judgment, the court must evaluate the undisputed facts based on the summary judgment record, drawing all inferences in favor of the plaintiff. Second, if the court believes that a constitutional violation did occur, it must consider whether the right was "clearly es- tablished." The question is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. This is an objective inquiry, to be decided by the court as a matter of law.

Criminal Law & Procedure > Search & Seizure > Search

Warrants > Scope of Warrant

Criminal Law & Procedure > Search & Seizure > Search

Warrants > Probable Cause

HN4 A non-protective search must normally be sup- ported by probable cause and, with certain exceptions, must be authorized by a warrant.

Criminal Law & Procedure > Search & Seizure > Search

Warrants > Scope of Warrant

HN5 A warrant must be read in a common sense, non- technical fashion. Although a warrant should be inter- preted practically, it must be sufficiently definite and clear so that the magistrate, police, and search subjects can ob- jectively ascertain its scope.

Criminal Law & Procedure > Search & Seizure > Search

Warrants > Scope of Warrant

HN6 When a warrant is accompanied by an affidavit that is incorporated by reference, the affidavit maybe used in construing the scope of the warrant.

Criminal Law & Procedure > Search & Seizure > Search

Warrants > Scope of Warrant

HN7 Unless the particular items described in the affi-

davit supporting the search warrant are also set forth in the warrant itself, there can be no written assurance that the magistrate actually found probable cause to search for, and to seize, every item mentioned in the affidavit. The mere fact that the magistrate issued a warrant does not necessarily establish that he agreed that the scope of the search should be as broad as the affiant's request. Criminal Law & Procedure > Search & Seizure > Search Warrants > Scope of Warrant

HN8 A search warrant for a premises does not constitute a license to search everyone inside.

Constitutional Law > Civil Rights Enforcement > Immunity > Public Officials

HN9 Where a challenged police action presents a legal question that is "unusual and largely heretofore undis- cussed," or where there is "at least some significant au- thority" that lends support of the police action, courts uphold qualified immunity even while deciding that the action in question violates the Constitution. On the other hand, a plaintiff need not show that there is a prior deci- sion that is factually identical to the case at hand in order to establish that a right was clearly established. A right may be clearly established even if there is no previous precedent directly in point.

Criminal Law & Procedure > Search & Seizure > Search

Warrants > Scope of Warrant

Constitutional Law > Search & Seizure > Warrants

HN10 The Fourth Amendment prevents the seizure of one thing under a warrant describing another.

COUNSEL:

For Appellees: Andrew A. Solomon (Argued), Malvern, PA, John M. Dodig, Master, Weinstein, Schnoll

& Dodig, Philadelphia, PA.

For Appellants: John G. Knorr, III, Esq. (Argued), Office of Attorney General of Pennsylvania, Department of Justice, Harrisburg, PA.

JUDGES:

Before: ALITO, AMBRO and CHERTOFF, Circuit

Judges.

OPINIONBY:

CHERTOFF

OPINION:

*235 OPINION OF THE COURT

CHERTOFF, Circuit Judge.

361 F.3d 232, *235; 2004 U.S. App. LEXIS 5247, **1

Page 3

Four police officers appeal from the denial of quali- fied immunity in a lawsuit alleging the unlawful search of occupants of a residence in Schuylkill County, Pennsylvania. The officers argue that they did not vio- late clearly established federal constitutional rights when they searched a mother and her ten year old daughter in the course of executing a search warrant for narcotics at their home.

The appeal turns on the scope of search authorized by the warrant. To resolve this issue, we must consider under what circumstances the scope of a warrant may be expanded by looking to the accompanying affidavit. We hold it to be **2 clearly established that unless a search warrant specifically incorporates an affidavit, the scope of the warrant may not be broadened by language in that affidavit. We also conclude that, under any reason- able reading, the warrant in this case did not authorize the search of the mother and daughter, and that the search was not otherwise justified. Accordingly, we will affirm the District Court's determination that the officers are not entitled to qualified immunity.

On March 6, 1998, as the result of a long-term in- vestigation of John Doe for suspected narcotics dealing,

officers of the Schuylkill County Drug Task Force ("Task Force") sought a search warrant for Doe and his residence. n1 The typed affidavit in support of the warrant applica- tion stated, in pertinent part, that a reliable confidential informant had purchased methamphetamine on several occasions from John Doe, at Doe's "residence/office," or from a Volkswagen automobile parked in front. In ad- dition, the affidavit noted that individuals with histories of prior narcotics use or with drug gang affiliations had been observed by Task Force members entering or leav- ing John Doe's residence. Finally, the affidavit indicated

**3 that the most recent methamphetamine purchase by the informant had occurred within the preceding 48 hours.

n1 We refer to the family in question as Doe because they filed their case under that name, al- though the actual names of family members are disclosed in the record.

The typed affidavit requested permission to search John Doe's residence and his Volkswagen for drugs, paraphernalia, money, drug records and other evidence. Additionally, the affidavit stated:

361 F.3d 232, *236; 2004 U.S. App. LEXIS 5247, **3

Page 4

*236 The search should also include all oc- cupants of the residence as the information developed shows that Doe has frequent vis- itors that purchase methamphetamine. These persons may be on the premises at the time of the execution of the search warrant and many attempt to conceal controlled substances on their persons.

. . .

This application seeks permission to search all occupants of the residence and their be- longings to prevent the removal, conceal- ment, or destruction of any evidence re- quested in this warrant. It is the experience of **4 your co-affiants that drug dealers often attempt to do so when faced with im- pending apprehension and may give such ev- idence to persons who do not acutally reside or own/rent the premises. This is done to pre- vent the discovery of said items in hopes that said persons will not be subject to search when police arrive.

. . .

As a result of the information developed, your affiant requests that a search warrant ... be issued for ... the residence of John Doe and all occupants therein.

PP 17, 20,& 21.

The typed affidavit was signed on the last page by a police officer, under whose signature was the entry:

"Sworn and subscribed before District Justice James R. Ferrier 2l-3--03, this 6th of March 1998." Under the leg- end was the Magistrate's signature, followed by the phrase

"Issuing Authority" and the impression of a rubber stamp.

The warrant was attached to a separate printed face sheet, entitled "Search Warrant and Affidavit." That form contained boilerplate introductory language, followed by open blocks for someone to type information. The first block asked for the identity of the "items to be search for and seized." The following blocks asked, in turn, for a

"specific **5 description of premises and/or persons to be searched"; the "name of owner, occupant or possessor of said premises to be searched"; a description of the na- ture and date of the statutory violations; and for the basis of "probable cause belief" Finally, the printed face sheet contained a space to delineate the results of the search, to be completed after the warrant was executed.

These printed blocks were completed. In response to the questions "date of violation" and "probable cause belief," the face sheet specifically referred to the typed affidavit of probable cause attached to the warrant. But in answering the question "specific description of premises and/or persons to be searched," the attached typed affi- davit was not mentioned. Rather, the form contained a typewritten entry naming only John Doe, giving his de- scription, date of birth and social security number, and identifying and describing John Doe's residence.

The printed warrant and affidavit face sheet was signed by the same police officer and "issuing authority" who had signed the underlying typed affidavit.

Armed with the warrant, Task Force police went to the John Doe house to carry out the search. Evidently, they anticipated **6 encountering females because they en- listed a female traffic meter patrol officer to be available if necessary to assist in the search. As the officers ap- proached the house, they met John Doe, and brought him into the house. Once inside, however, the officers found no visitors, but only John Doe's wife, Jane, and their ten year old daughter, Mary.

The officers decided to search Jane and Mary Doe for contraband, and sent for the meter patrol officer. When she arrived,

361 F.3d 232, *237; 2004 U.S. App. LEXIS 5247, **6

Page 5

*237 the female officer removed both Jane and Mary Doe to an upstairs bathroom. They were instructed to empty their pockets and lift their shirts. The female offi- cer patted their pockets. She then told Jane and Mary Doe to drop their pants and turn around. No contraband was found. With the search completed, both Jane and Mary Doe were returned to the ground floor to await the end of the search.

John and Jane Doe filed a complaint under 42 U.S.C.

§ 1983 on their own behalf, and on behalf of Mary Doe, against the searching officers and their superiors, and against various government entities. The Does al- leged, among other things, that the officers illegally strip searched Jane and Mary Doe. After preliminary **7 lit- igation skirmishing, a number of claims and parties were dismissed, and discovery was conducted. Cross motions for summary judgment were filed. One of these was a mo- tion by individual police officers for summary judgment rejecting the strip search claim on the ground of qualified immunity. The District Court granted the motion for two officers, but denied qualified immunity to officers Joseph Groody, Adam Bermodin, and Robert Phillips and Agent Robert Bruce, the four Task Force officials who were di- rectly involved in the search of Jane Doe and Mary Doe. The District Judge also granted partial summary judgment against those four officers on the issue of liability.

The four Task Force officers appeal the denial of sum- mary judgment based on qualified immunity.

II.

We have jurisdiction over that portion of the District Court's decision rejecting the claim of qualified immunity by the four officers. Although the litigation below is far from concluded, HN1 a denial of qualified immunity

that turns on an issue of law--rather than a factual dis- pute--falls within the collateral order doctrine that treats certain interlocutory decisions as "final" within the mean- ing of 28 U.S.C. § 1291. **8 Behrens v. Pelletier, 516

U.S. 299, 307, 313, 133 L. Ed. 2d 773, 116 S. Ct. 834

(1996); Mitchell v. Forsyth, 472 U.S. 511, 525, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985); In re Montgomery County, 215 F.3d 367, 373 (3d Cir. 2000). All parties here acknowledge, and we agree, that there is no genuine issue of fact that relates to the qualified immunity issue that is being appealed. Accordingly, we may decide this appeal. Our review of this legal issue is plenary. Eddy v. V.I. Water and Power Auth., 256 F.3d 204, 208 (3d Cir. 2001); Torres v. McLaughlin, 163 F.3d 169, 170 (3d Cir. 1998).

HN2 Qualified immunity protects law enforcement officers from being tried for actions taken in the course of their duties. If the immunity applies, it entitles the of- ficer to be free of the "burdens of litigation." Mitchell,

472 U.S. at 526. But the immunity is forfeited if an of- ficer's conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 614, 143

L. Ed. 2d 818, 119 S. Ct. 1692 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102

S. Ct. 2727 (1982)). **9 HN3 To determine in this case whether the officers have lost their immunity, we must engage in a two step analysis. First, we must decide

"whether a constitutional right would have been violated on the facts alleged . . . ." Saucier v. Katz 533 U.S. 194,

200, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001). Because we consider an appeal by the officers from the denial of their motion for summary judgment, we must evaluate the undisputed facts based on the summary judgment record, drawing all inferences in favor of the plaintiff. Behrens,

361 F.3d 232, *238; 2004 U.S. App. LEXIS 5247, **9

Page 6

*238 516 U.S. at 309; Torres, 163 F.3d at 170. Second, if we believe that a constitutional violation did occur, we must consider whether the right was "clearly established." Saucier, 533 U.S. at 201; see Groh v. Ramirez, 540 U.S.

, 157 L. Ed. 2d 1068, 1082, 124 S. Ct. 1284 (2004). n2

The question is "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202. This is an objective inquiry, to be decided by the court as a matter of law. Bartholomew v. Pennsylvania, 221 F.3d 425, 428 (3d Cir. 2000).

n2 Groh, which bears heavily on this case, was decided well after this case was briefed and argued. That decision has not altered the law that previously applied in this area.

**10

III.

The constitutional violation at issue here arises under Jane and Mary Doe's Fourth (and Fourteenth) Amendment rights to be free of unreasonable searches and seizures. n3

Both Jane and Mary Doe were physically removed to the bathroom of their house and detained there for a period of time. They were asked to remove or shift articles of clothing and were visually inspected and touched by a female officer who was searching for contraband. Later, they were moved to the ground floor and detained there during the balance of the house search.

n3 Because the Fourth Amendment (as incorpo- rated into the Fourteenth) furnishes the "explicit textual source" for the constitutional protection against unlawful searches and seizures, we look to it, rather than more general notions of due process, in analyzing the claim of constitutional violation. Albright v. Oliver, 510 U.S. 266, 273, 127 L. Ed. 2d

114, 114 S. Ct. 807 (1994).

The nature of the intrusion alleged is significant. In

Leveto v. Lapina, 258 F.3d 156, 172-75 (3d Cir. 2001),

**11 this Court held that, as of 2001, it was unclear whether police searching a premises could permissibly detain those present or "frisk" them for protective pur- poses. But the facts here are different than those in Leveto. Although Jane and Mary Doe were detained during the course of the search in this case, the District Court de- nied qualified immunity for the search, not the deten- tion. Insofar as Leveto discusses detention, therefore, it is irrelevant to this issue. Similarly, neither the Does nor the officers contend that the search here was a protective

"frisk" or search for weapons that is justified on less than full probable case. See Terry v. Ohio, 392 U.S. 1, 16, 25-

30, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); Leveto, 258

F.3d at 163-64. Rather, the officers concede that Jane and Mary Doe were searched for possible evidence or contra- band, and not because they were viewed as possibly armed or dangerous. Indeed, it is difficult to conceive how the search of a ten-year old child in these circumstances could be justified as part of a "protective sweep." Because the decision in Leveto concerned the special rules governing protective searches, it **12 simply does not address the non-protective body search that is before us in this matter.

HN4 A non-protective search must normally be sup- ported by probable cause and, with certain exceptions, must be authorized by a warrant. The officers principally argue that the search of both females was covered by the warrant for the search of the house and was supported by probable cause. If a warrant did indeed authorize a search of Jane and Mary Doe, then the officers were entitled to rely upon it to satisfy the probable cause requirement, and there was no constitutional violation. n4

361 F.3d 232, *239; 2004 U.S. App. LEXIS 5247, **12

Page 7

*239 United States v. Leon, 468 U.S. 897, 922, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984).

n4 Of course, that reliance presupposes that there is no deliberate material misrepresentation in the supporting affidavit. See Franks v. Delaware,

438 U.S. 154, 155, 57 L. Ed. 2d 667, 98 S. Ct. 2674

(1978). There is no allegation of such a misrepre- sentation in this case.

The face of the search warrant ere, however, does not grant authority to search either **13 Jane or Mary Doe. The block designated for a description of the per- son or place to be searched specifically names John Doe, and identifies and describes his residence. Nothing in that portion of the printed warrant refers to any other indi- vidual, named or unnamed, to be searched. Seeking to remedy this omission, the officers argue that the war- rant should be read in light of the accompanying affidavit which requested permission to search "all occupants" of the residence. They conclude that the warrant should be read in "common sense" fashion, as supplemented by the affidavit. If that contention is correct, then police had legal authority to search anybody that they encountered inside the house when they came to execute the warrant.

To be sure, HN5 a warrant must be read in a common sense, non-technical fashion. United States v. Ventresca,

380 U.S. 102, 109, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965). But it may not be read in a way that violates its fundamen- tal purposes. As the text of the Fourth Amendment itself denotes, a particular description is the touchstone of a warrant. U.S. Const. amend. IV. The requirement of a par- ticular description in writing accomplishes three things. First, **14 it memorializes precisely what search or seizure the issuing magistrate intended to permit. Second, it confines the discretion of the officers who are executing

the warrant. Marron v. United States, 275 U.S. 192, 196,

72 L. Ed. 231, 48 S. Ct. 74, Treas. Dec. 42528 (1927). Third, it "inform s the subject of the search what can be seized." Bartholomew, 221 F.3d at 429. For these rea- sons, although a warrant should be interpreted practically, it must be sufficiently definite and clear so that the magis- trate, police, and search subjects can objectively ascertain its scope. Groh, 540 U.S. at , 157 L. Ed. 2d at 1080.

As the officers correctly observe, it is perfectly appro- priate to construe a warrant in light of an accompanying affidavit or other document that is incorporated within the warrant. But to take advantage of this principle of in- terpretation, the warrant must expressly incorporate the affidavit. Bartholomew, which the officers invoke, makes this very point. In that case, we observed that HN6

"'when a warrant is accompanied by an affidavit that is incorporated by reference, the affidavit maybe used in construing the scope of the warrant.'" Id. at 428 (quoting United States v. Johnson, 690 F.2d 60, 64-65 (3d Cir.

1982), **15 cert. denied, 459 U.S. 1214, 75 L. Ed. 2d

450, 103 S. Ct. 1212 (1983)). We dwelled at some length on the importance of making that incorporation clear. Id. at 428 & n.4 (citing cases). The Supreme Court has very recently re-emphasized this point in Groh, 540 U.S. at ,

157 L. Ed. 2d at 1078.

In this case, there is no language in the warrant that suggests that the premises or people to be searched in- clude Jane Doe, Mary Doe, "all occupants" or anybody else, save John Doe himself. Other portions of the face sheet which describe the date of the violation and the supporting probable cause do refer to the attached typed affidavit. But this fact is actually unhelpful to the officers, since it demonstrates that where the face sheet was in- tended to incorporate the affidavit, it said so explicitly. As a matter of common sense, as well as

361 F.3d 232, *240; 2004 U.S. App. LEXIS 5247, **15

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*240 logic, the absence of a reference to the affidavit must therefore be viewed as negating any incorporation of that affidavit. n5

n5 At oral argument, counsel for the officers suggested that the signature of the Magistrate un- der the oath line on the affidavit somehow converted the affidavit into a warrant. But counsel conceded that there is nothing in the record to support the no- tion that, by witnessing the affiant's oath, the judge intended to convert the police officer's wish into a judicial command. Without some support for this strained contention, we decline to adopt it.

**16

We recognize that there are decisions in which an affi- davit has been used to save a defective warrant even when it has not been incorporated within that warrant. But the cases fall into two categories. The first embraces those circumstances in which the warrant contains an ambigu- ity or clerical error that can be resolved with reference to the affidavit. In these situations, it is clear that the re- questing officers and the magistrate agreed on the place to be searched or item to be seized, but there is an ob- vious ministerial error in misidentifying or ambiguously identifying the place or item See, e.g., United States v. Ortega-Jimenez, 232 F.3d 1325, 1329 (10th Cir. 2000)

(ambiguous term); United States v. Simpson, 152 F.3d

1241, 1248 (10th Cir. 1998) (internal inconsistency in warrant). Reliance on the affidavit in these circumstances neither broadens nor shrinks the scope of the warrant, but merely rectifies a "minor irregularity." United States v. Johnson, 690 F.2d at 65 n.3 (quoting Ventresca, 380 U.S. at 108).

The omission of Jane Doe, Mary Doe, or "all occu- pants" from the warrant in this case cannot be viewed

**17 as the sort of ambiguity or misidentification error that can be clarified by inspecting the affidavit. This war- rant has no ambiguous or contradictory terms on its face.

Rather, the language of the warrant is inconsistent with the language of the affidavit, because the former does not grant what the latter sought--permission to search "all oc- cupants" of the house. That is not a discrepancy as to form; it is a difference as to scope. And it is a difference of sig- nificance. A state magistrate reviewing a search warrant affidavit might well draw the line at including unnamed

"all occupants" in the affidavit because Pennsylvania law disfavors "all occupant" warrants. See Commonwealth v. Gilliam, 522 Pa. 138, 560 A.2d 140, 142 (Pa. 1989). Thus, the circumstances of this warrant are a far cry from those in the category of warrants which can be "clarified" by a separate affidavit.

The second category of decisions in which an unincor- porated affidavit has been read to modify a search warrant is constituted by cases in which the affidavit is particular- ized but the warrant is overbroad. See, e.g., United States v. Bianco, 998 F.2d 1112, 1116-17 (2d Cir. 1993); **18 United States v. Towne, 997 F.2d 537, 547 n.5 (9th Cir.

1993) (discussing cases). So long as the actual search is confined to the narrower scope of the affidavit, courts have sometimes allowed the unincorporated affidavit to

"cure" the warrant id., or at least have treated the exces- sive elements of the warrant as harmless surplusage, see United States v. Stefonek, 179 F.3d 1030, 1033-34 (7th Cir. 1999). n6

n6 For the same reasons, this Court has upheld redaction as a means of narrowing a warrant. United States v. Christine, 687 F.2d 749, 759-60 (3d Cir.

1982).

Commonwealth v. Carlisle, 517 Pa. 36, 534 A.2d 469

(Pa. 1987), cited by the officers on this appeal, is a good example. There, the police searched a specific apartment at an address. The affidavit identified the apartment num- ber and street address, but the search warrant only men- tioned the street address. Noting that the officers had only searched the specific apartment

361 F.3d 232, *241; 2004 U.S. App. LEXIS 5247, **18

Page 9

*241 for which **19 they had requested the warrant, the Supreme Court of Pennsylvania held that the arguably overbroad scope of the warrant should be read narrowly in light of the affidavit. In other words, the warrant clearly authorized the search of the specific apartment and, per- haps, too much more. Since the police limited themselves to the narrow search--which was clearly permitted by the warrant and supported by the affidavit--the affidavit was permitted to narrow the scope of the warrant. Tellingly, the court observed that had the police searched more broadly, the fruits of that search would have been suppressed. Id. at 472.

In the case we consider now, however, the circum- stances are precisely the reverse of the preceding category of "cure" cases. Here, the affidavit is broader than the war- rant, and the police in fact searched more broadly than the warrant. Unlike Carlisle, then, the officers seek to use the affidavit to expand, rather than limit, the warrant. That makes all the difference.

The warrant provides the license to search, not the affidavit. Cases such as Bianco, Towne and Carlisle may allow us to rescue an overbroad warrant if the police forbear from exercising the **20 full measure of its excessive scope. It does not follow that we can rescue an overbroad search if the police exceed the full measure of the warrant. Bluntly, it is one thing if officers use less than the authority erroneously granted by a judge. It is quite another if officers go beyond the authority granted by the judge. Were we to adopt the officers' approach to warrant interpretation, and allow an unincorporated affidavit to expand the authorization of the warrant, we would come dangerously close to displacing the critical role of the independent magistrate.

This point was reemphasized forcefully this term by the Supreme Court in Groh v. Ramirez. In Groh, the Bureau of Alcohol, Tobacco and Firearms completed

an application and affidavit that detailed with specificity that the agents sought to search for and seize a cache of firearms suspected to be located at the home of Joseph Ramirez. Groh, 540 U.S. at , 157 L. Ed. 2d at 1076. The warrant was less specific. In the portion of the printed warrant form "that called for a description of the 'person or property' to be seized," the agents identified the loca- tion to be searched, but neither listed the **21 items to be seized nor "incorporate d by reference the item- ized list contained in the application." Id. The warrant did refer to the affidavit by reciting that the Magistrate was satisfied that the affidavit established probable cause to believe that contraband was concealed on the premises. Id. On the authority of the warrant, the Bureau searched Ramirez's house. Id. 157 L. Ed. 2d at 1077. The Bureau did not seize anything, nor were any charges filed against Ramirez. n7 Id. Ramirez sued Groh and the other officers for a Fourth Amendment violation.

n7 At the conclusion of the search, agents pro- vided Ramirez's wife with a copy of the warrant, though not a copy of the application and affidavit, which had been sealed. Agents did provide copies of the relevant portions of the application upon a request by Ramirez's lawyer, however. Groh, 540

U.S. at , 157 L. Ed. 2d at 1077.

The facts in Groh were strikingly similar to those in this case:

In Groh, as here, the agents submitted an application and **22 affidavit that detailed what they wanted to search and to seize. Id. at 157 L. Ed. 2d at 1076.

In Groh, as here, the affidavit sought to supply prob- able cause to search for, and seize, those listed items. Id.

361 F.3d 232, *242; 2004 U.S. App. LEXIS 5247, **22

Page 10

*242 In Groh, as here, the warrant form was prepared by the officer who wrote the affidavit, and who presumably intended the warrant to authorize the search and seizure of the items in the affidavit. Id. 157 L. Ed. 2d at 1079. n8

n8 Indeed, because the officer who wrote the af- fidavit also drafted the warrant form, the Supreme Court found the defective warrant less justifiable, saying:

"Because petitioner himself prepared the invalid warrant, he may not argue that he reasonably relied on the Magistrate's assurance that the warrant con- tained an adequate description. . . ." Id. 157 L. Ed.

2d at 1082.

In Groh, as here, the warrant expressly referred to the affidavit in affirming the existence of probable cause, but not in describing what was to be searched and seized. Id.

157 L. Ed. 2d at 1076.

In Groh, as here, the Magistrate **23 reviewed the warrant and affidavit, and did not alter the warrant before signing it.

On these facts, the Supreme Court held the search warrant invalid. Id. 157 L. Ed. 2d at 1078. The Court's reasoning turned precisely on the sharp distinction the law draws between what is authorized in a warrant, and what is merely an application by the police. Id. 157 L. Ed.

2d at 1080. The Court recognized that the application and affidavit contained an adequate description of the items to be seized, but observed that because neither was in- corporated by reference into the warrant description of

"'persons or property' to be seized," their contents were irrelevant. Id 157 L. Ed. 2d at 1076, 1080. But the Court explicitly rejected the argument that one could infer that the Magistrate must have intended the warrant to autho- rize the full scope of what was sought in the affidavit:

HN7 Unless the particular items described

in the affidavit are also set forth in the warrant itself . . . there can be no written assurance that the Magistrate actually found probable cause to search for, and to seize, every item mentioned in the affidavit.

...

The mere fact that the Magistrate issued a warrant does not necessarily establish that

**24 he agreed that the scope of the search should be as broad as the affiant's request.

Id. 157 L. Ed. 2d at 1080. That rule disposes of appellants'

reliance on the affidavit here.

Moreover, this case would be a particularly bad in- stance in which to allow a broad affidavit to overwhelm a narrow warrant. For when we examine the affidavit on which the officers rely, it is doubtful that probable cause exists to support a search of John Doe's wife and minor daughter. Paragraphs 17 and 20--which are the provisions seeking to justify an "all occupants" search--quite specif- ically argue that visitors may be present purchasing drugs and that dealers often give contraband to non-residents of a house in the hopes they will not be searched. We look in vain for any assertion that narcotics dealers often hide drugs on family members and young children. Perhaps they do; but the judge reviewing this affidavit would not know it. So, if anything, these paragraphs of the affidavit appear to undermine the probable cause to search Jane and Mary Doe. That is all the more reason to doubt that the Magistrate's failure to include these two family mem- bers in the warrant was an oversight. And that also makes it all **25 the less reasonable to read permission to search them into the text of the warrant.

We are mindful that search warrants and affidavits are often prepared under time pressure and should not be sub- jected to microscopic dissection. But the warrant plays a critical role under the Fourth Amendment. At some point, flexibility becomes

361 F.3d 232, *243; 2004 U.S. App. LEXIS 5247, **25

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*243 breakage. The warrant must be written with objec- tive definition, or its scope will not be discernable to those who are bound to submit to its authority, whether they are police or subjects of the search. By the same token, with- out a clear reference to the affidavit in the warrant, the former cannot simply be assumed to broaden the latter. Otherwise, we might indeed transform the judicial officer into little more than the cliche "rubber stamp."

Finally, we consider whether the search of Jane and Mary Doe can be justified on some basis other than the warrant. The officers have not seriously pressed this ar- gument, but the District Court did consider whether the officers had probable cause to search Jane and Mary Doe under an exception to the warrant requirement.

None appears. HN8 A search warrant for a premises does not constitute a license to search everyone inside.

**26 Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d

238, 100 S. Ct. 338 (1979). The record does not disclose any independent basis to suspect Jane Doe--let alone 10- year old Mary Doe--of drug activity. While the officers justified their decision to conduct the personal searches because of the ease with which contraband could be con- cealed on those present in the searched premises, that is precisely the justification for a personal search that has been rejected by the Supreme Court. Id. at 94-96. Simply put, there is none of the kind of "particularized" probable cause required for a search in circumstances such as these. Id. at 91.

IV.

Having determined that the search of Jane and Mary Doe violated the Fourth Amendment, what remains is to decide whether this violation transgressed "clearly estab- lished" rights. The District Court held that it did, and the

officers argue that the District Court applied the "clearly established" test at too high a level of generality.

We agree that in determining whether a right is

"clearly established," we should analyze the right with specificity. Bartholomew, 221 F.3d at 429. HN9 Where a challenged police **27 action presents a legal ques- tion that is "unusual and largely heretofore undiscussed," id at 429, or where there is "at least some significant au- thority" that lends support of the police action, Leveto,

258 F.3d at 166, we have upheld qualified immunity even while deciding that the action in question violates the Constitution. On the other hand, the plaintiff need not show that there is a prior decision that is factually iden- tical to the case at hand in order to establish that a right was clearly established. "A right may be clearly estab- lished even if there is 'no previous precedent directly in point.'" Id. at 162 (quoting Good v. Dauphin County Soc. Servs. for Children & Youth, 891 F.2d 1087, 1092 (3d Cir.

1989)).

The principal narrow question in this case is whether in 1999, when these searches occurred, it was clearly es- tablished that police could not broaden the scope of a warrant with an unincorporated affidavit. We think that a review of the cases indicates that it was.

We begin with the settled proposition that the Fourth Amendment HN10 "prevents the seizure of one thing under a warrant describing another." Marron, 275 U.S. at

196. **28 That is both uncontroverted and long estab- lished. As we observed above, a warrant may be modified by an affidavit when it is expressly incorporated by refer- ence. We so held as early as our 1982 decision in United States v. Johnson, 690 F.2d at 64-65. Pennsylvania cases agree. See Commonwealth

361 F.3d 232, *244; 2004 U.S. App. LEXIS 5247, **28

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*244 v. Wilson, 429 Pa. Super. 197, 631 A.2d 1356,

1358 (Pa. Super. Ct. 1993). n9 But there is no express incorporation here.

n9 Wilson specifically held that a reference to all persons present in an affidavit cannot be relied upon where it is not referenced in the warrant: "The issuing authority neither authorized nor found prob- able cause for an 'all persons present' warrant. This is clear from a reading of the warrant. The only reference to such a warrant appears in the affidavit; the warrant itself does not appear to have granted the request." 631 A.2d at 1358.

What is significant is that the officers can point to no precedent that allowed an unincorporated affidavit to

**29 expand a search warrant. Although there are de- cisions that allow unincorporated affidavits to clarify or narrow overbroad warrants, we have explained at consid- erable length why these are a totally different matter. This is not an arcane or legalistic distinction, but a difference that goes to the heart of the constitutional requirement that judges, and not police, authorize warrants. An officer may reasonably rely on a magistrate's approval of an over- broad warrant because the officer normally should not be penalized for the magistrate's mistake. See Massachusetts v. Sheppard, 468 U.S. 981, 990, 82 L. Ed. 2d 737, 104

S. Ct. 3424 (1984); U.S. v. Ninety-Two Thousand Four

Hundred Twenty-Two Dollars and Fifty Seven Cents, 307

F.3d 137, 152 (3d Cir. 2002). But there is no reasonable basis for an officer to exceed the scope of a warrant just because he asked for broader search authority in the affi- davit. In the latter instance, the officer has not relied on, but has disregarded, the 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 **30 house that was being searched, the Court dismissed the con-

tention that omission of this description was not clearly unconstitutional, or a good faith error. Rather, the Court stated: "As we observed in the companion case to Shepherd, 'a warrant may be so facially deficient -- i.e., in failing to particularize the place to be searched or the things to be seized -- that the executing officers cannot reasonably presume it to be valid."' Groh, 540 U.S. at ,

157 L. Ed. 2d at 1083 (quoting Leon, 468 U.S. at 923). The flaw here was every bit as manifest as the omission in the warrant in Groh.

Finally, even if an exception to the warrant require- ment did apply, it is clear that the search of Jane and Mary Doe for evidence had to be based on probable cause, and not on a generalized concern that those present at a search might hide evidence. That principle was established as early as 1979. Ybarra, 444 U.S. at 94-96.

Searching Jane and Mary Doe for evidence beyond the scope of the warrant and without probable cause violated their clearly established Fourth Amendment rights. Accordingly, we will affirm the decision of the District Court rejecting **31 qualified immunity for the searches, and remand the case for further proceedings consistent with this opinion.

DISSENTBY:

ALITO

DISSENT: ALITO, Circuit Judge, dissenting:

I would reverse the order of the District Court and di- rect that summary judgment be entered in favor of the de- fendants. First, the best reading of the warrant is that it au- thorized the search of any persons found on the premises. Second, even if the warrant did not contain such autho- rization, a reasonable police officer could certainly have read the warrant as doing so, and therefore the appellants are entitled to qualified immunity.

361 F.3d 232, *245; 2004 U.S. App. LEXIS 5247, **31

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*245 I.

Search warrants are "normally drafted by nonlawyers in the midst and haste of a criminal investigation." United States v. Ventresca, 380 U.S. 102, 108, 13 L. Ed. 2d 684,

85 S. Ct. 741 (1965). Consequently, they are to be read

"in a commonsense and realistic fashion." Id. Here, the

"commonsense and realistic" reading is that the issuing magistrate intended to authorize a search of all the occu- pants of the premises and that the warrant did so. Five points are important to keep in mind.

First, there is no doubt that the search warrant appli- cation sought permission to search **32 all occupants of the premises. Indeed, the affidavit made this request in three separate paragraphs. Paragraph 17, after asking for authorization to search John Doe's home and car, added:

The search should also include all occu- pants of the residence as the information de- veloped shows that John Doe has frequent visitors that purchase methamphetamine. These persons may be on the premises at the time of the execution of the search war- rant and may attempt to conceal controlled substances on their persons.

App. 498a (emphasis added).

Paragraph 20 reiterated that request:

This application seeks permission to search all occupants of the residence and their be- longings to prevent the removal, conceal- ment, or destruction of any evidence re- quested in this warrant.

And paragraph 21 repeated the request a third time:

As a result of the information developed, your affiant requests that a search warrant for methamphetamine and other controlled sub-

stances, drug paraphernalia, drug records, monies, proof of residence/ownership, docu- ments, photographs, and weapons be issued for 618 Center St. Ashland, Pa., the residence of John Doe **33 and all occupants therein.

App. 498a (emphasis added).

Second, the affidavit also clearly attempted to estab- lish probable cause to search all occupants of the premises. The two affiants, who had background and training in drug cases, stated that, in their experience, drug dealers, when faced with "impending apprehension," often give evidence to other persons present on the premises in the hope that "said persons will not be subject to search when police arrive" and that this will "prevent the discovery of said items." See App. 494a.

Third, the warrant as drafted was intended to authorize a search of all persons on the premises. The warrant was drafted by the officers who applied for the warrant and was typed by one of those officers. App. 348a. Since the officers were seeking permission to search all occupants of the premises, they obviously intended for the draft war- rant that they submitted to the magistrate to authorize the search of such persons.

Fourth, the warrant expressly incorporated the affi- davit with respect to the issue that was most critical to the request to search all occupants viz., the issue of probable cause. While probable cause to search **34 premises does not necessarily provide probable cause to search ev- ery person who is found on the premises, see Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338

(1979), if there is probable cause to believe that all of the persons found on the premises possess on their persons either contraband or evidence of a crime, there is no rea- son why a warrant authorizing a search of all such persons should not be issued. In this case, as noted, the affidavit submitted in support of the warrant application claimed that there was probable cause to search all such persons,

361 F.3d 232, *246; 2004 U.S. App. LEXIS 5247, **34

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*246 and the warrant expressly incorporated that claim. Fifth, after the warrant and affidavit were reviewed by the District Attorney's office and presented to a magis- trate, the magistrate carefully reviewed these documents

and signed the warrant without alteration.

Under these circumstances, the "commonsense and realistic" reading of the warrant is that it authorized a search of all occupants of the premises. It seems quite clear that the magistrate intended to authorize a search of all occupants of the premises. As noted, the applica- tion repeatedly requested such authorization and set out facts that the officers **35 (and presumably the District Attorney's office) regarded as establishing probable cause. The warrant indisputably incorporated the affidavit with respect to the issue of probable cause, and the magistrate signed the warrant without alteration. The only reasonable inference is that the magistrate agreed with the affidavit that there was probable cause to search all occupants of the premises and that the magistrate intended to authorize such a search. The magistrate must have understood that the officers, who had drafted the warrant, believed that the warrant, if signed, would give them authorization to carry out a search of the scope specified in the application, viz., a search of "all occupants." As a result, the magistrate surely would not have signed the warrant without mod- ification if the magistrate had not wished to confer that authority.

The majority, however, raises a formal objection to the warrant. The majority contends that the warrant un- ambiguously limits the persons to be searched to John Doe alone. In reaching this conclusion, the majority re- lies on the entry that the officers placed in the box entitled

"SPECIFIC DESCRIPTION OF PREMISES AND/OR PERSONS TO BE SEARCHED. **36 " App. 493a. In that box, the officers placed the name of John Doe, followed by his race, sex, date of birth, hair and eye color, and Social Security number. Id. The officers also included the address and a fairly detailed description of the premises. Id. This information more than filled the space allotted. Id.

At their depositions, both of the officers who signed the affidavit explained why they did not note in the box in question that the warrant authorized a search of all occupants of the premises. They stated that there simply was not room in that box and that the incorporation of the affidavit into the warrant (which was noted in the box entitled "PROBABLE CAUSE BELIEF IS BASED ON THE FOLLOWING FACTS AND CIRCUMSTANCES" n10) was meant to provide a full description of the persons to be searched. n11

n10 The affidavit is also cross-referenced in the box entitled DATE OF VIOLATIONS." App. 498a.

n11 Officer Schaeffer testified that John Doe was mentioned in the box at issue because he "was the target," but Officer Schaeffer added: "As you can see, that box is filled. You can't include every- thing there." App. 402a. See also id. at 403a. He stated that the affidavit was "part of the search war- rant and we include everything that we want in that affidavit of probable cause. . . . It's impossible to fit everything we want in these little boxes they give us." Id. at 402a-03a.

Officer Phillips gave a similar explanation: Q. Okay. You'll agree with me,

sir, that on the face of the war- rant it calls, under the heading

"Specific Description of Premises and/or Persons to be Searched" the only individual named there is John Doe , is that correct?

A. That is correct. And the reason for that is there's not enough room in that block to indicate every possible name of individuals who might be in the residence to be searched. That's why we extended into the probable cause affidavit, just as the rest of the information is in the probable cause affidavit. It would not fit on the face sheet of this warrant.

Q. So it's your testimony that the only reason that the words and other,

"and other occupants of the residence" do not appear on the face of the search warrant is there's no room?

A. There's no room to list all of the occupants who may have been in the residence at the time with, along with an explanation of what "other oc- cupants" are, include visitors, family members.

App. at 353a.

**37

361 F.3d 232, *247; 2004 U.S. App. LEXIS 5247, **37

Page 15

*247 For present purposes, however, the majority at- taches no significance to the entry in the box concern- ing probable cause. The majority takes the position that the only relevant entry is the one in the box entitled

"SPECIFIC DESCRIPTION OF PREMISES AND/OR PERSONS TO BE SEARCHED." Because that entry does not refer to all occupants of the premises and does not state that the affidavit is incorporated for the purpose of specifying the persons to be searched, the majority con- cludes that the warrant does not authorize a search of all such persons. The majority states that the "warrant has no ambiguous . . . terms on its face" and that it is therefore improper to look beyond the face of the warrant. Maj. Op. at 8.

I believe that the majority's analysis is flawed. First and most important, the majority employs a technical and legalistic method of interpretation that is the antithesis of the "commonsense and realistic" approach that is appro- priate. n12 Second, the face of the warrant here does not unambiguously restrict the persons to be searched to John Doe alone. As previously noted, the question whether occupants other than John Doe should be searched was closely tied (if not identical) **38 to the question whether there was probable cause to search such persons, and the face of the warrant incorporated the affidavit with respect to the issue of probable cause. This incorporation, at the very least, creates a sufficient ambiguity to per- mit consideration of the affidavit and the circumstances surrounding the application.

n12 The majority's mistaken approach is fur- ther exemplified by its suggestion that the affidavit does not actually state that, in the experience of the affiants, drug dealers "often hide drugs on family members and young children." Maj. Op. at 11. The pertinent paragraph of the affidavit states:

This application seeks permission to search all occupants of the residence

and their belongings to prevent the re- moval, concealment, or destruction of any evidence requested in this warrant. It is the experience of your coaffiants that drug dealers often attempt to do so when faced with impending appre- hension and may give such evidence to persons who do not actually reside or own/rent the premises. This is done to prevent the discovery of said items in hopes that said persons will not be subject to search when police arrive.

The commonsense reading of this paragraph is that, in the experience of the affiants, drug dealers, when they are about to be arrested, often give con- traband or incriminating evidence to other persons who are on the premises ("occupants") in the hope that these persons will not be searched. The major- ity notes that this passage does not literally state that narcotics dealers often hide drugs on family members and young children," but this is precisely the sort of technical, legalistic reading that is out of place in interpreting a search warrant or supporting affidavit.

**39

For these reasons, I would hold that the warrant did in fact authorize a search of all persons on the premises, including Jane and Mary Doe.

The majority strives to justify its decision by invoking the Supreme Court's recent decision in Groh v. Ramirez,

157 L. Ed. 2d 1068, 124 S. Ct. 1284 (2004), but Groh simply does not speak to the question that divides this panel, i.e., the degree of technical precision that should be demanded in determining whether a warrant adequately incorporates an attached application or affidavit.

In Groh, law enforcement officers submitted an appli- cation for a warrant to

361 F.3d 232, *248; 2004 U.S. App. LEXIS 5247, **39

Page 16

*248 search a ranch for firearms, explosives, and records and later carried out a search for these items, but the warrant did not state that a search for such items was authorized and did not incorporate the application. Id. 157 L. Ed. 2d at 1076. In addition, when the search was completed, the officers 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. 157 L. Ed. 2d at 1077 (emphasis added). The Court held that the war- rant was defective because it did not particularly describe the type of evidence sought. Id. 157 L. Ed. 2d at 1078. However, the **40 Court was careful to distinguish the case before it from a case in which a warrant incorporates another document that contains such a specification. Id.

157 L. Ed. 2d at 1078. The Court wrote:

We do not say that the Fourth Amendment forbids a warrant from cross-referencing other documents. Indeed, most Courts of Appeals have held that a court may construe a warrant with reference to a supporting appli- cation or affidavit if the warrant uses appro- priate words of incorporation, and if the sup- porting document accompanies the warrant... But in this case the warrant did not incorpo- rate other documents by reference, nor did either the affidavit or the application (which had been place under seal) accompany the warrant. Hence, we need not further explore the matter of incorporation.

Id. 157 L. Ed. 2d at 1078-79.

My disagreement with the majority concerns the ques- tion whether the mode of incorporation in this case was adequate, and Groh does not speak to this question. Groh merely refers without elaboration to "appropriate words of incorporation." Slip Op. at 6. In my view, the appropri- ateness of "words of incorporation" is to be judged by the

"commonsense and realistic" standard that is generally

**41 to be used in interpreting warrants. The majority,

however, reads the warrant in this case almost as if it were a contract subject to the doctrine of contra proferentum. Groh does not justify such an approach.

II.

Even if the warrant did not confer such authorization, a reasonable officer certainly could have believed that it did, and therefore the defendants' motion for summary judgment based on qualified immunity should have been granted. See Anderson v. Creighton, 483 U.S. 635, 640-

41, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). Qualified im- munity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271,

106 S. Ct. 1092 (1986). See also, e.g., Saucier v. Katz,

533 U.S. 194, 202, 150 L. Ed. 2d 272, 121 S. Ct. 2151

(2001). The appellants in this case did not exhibit incom- petence or a willingness to flout the law. Instead, they reasonably concluded that the magistrate had authorized a search of all occupants of the premises where: (1) that is what the application sought; (2) the affidavit asserted that there was probable cause for such a search; (3) the warrant expressly incorporated **42 the affidavit on the issue of probable cause, (4) the language of the warrant was drafted to confer authorization to search all occu- pants, 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. n13

n13 The plaintiffs argue that there was no prob- able cause to search them, but whether or not there was probable cause, when a warrant is issued, offi- cers who execute the warrant are entitled to quali- fied immunity unless "the warrant application is so lacking in indicia of probable cause as to render of- ficial belief in its existence unreasonable." Malley v. Briggs, 475 U.S. at 344-45. That high standard is not met here.

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Page 17

*249 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 **43 their business and to avoid prosecution. I know of no legal principle that

bars an officer from searching a child (in a proper manner) if a warrant has been issued and the warrant is not illegal on its face. Because the warrant in this case authorized the searches that are challenged - and because a reasonable officer, in any event, certainly could have thought that the warrant conferred such authority - I would reverse.

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