Sherwood v. Mulvihill

• Decision Date: 15 January 1997
• Docket Number: No. 96-5236,96-5236
• Citation: 113 F.3d 396
• Parties: George SHERWOOD, Appellant, v. James F. MULVIHILL, Ass't Prosecutor; Edward Borden, Prosecutor; Ronald Bakley, Detective; James Barnum, Chief; John Doe. James F. MULVIHILL, Defendant/Third-Party Plaintiff, v. CAMDEN COUNTY PROSECUTOR, Third-Party Defendant. . Submitted under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 396

113 F.3d 396

George SHERWOOD, Appellant, v. James F. MULVIHILL, Ass't Prosecutor; Edward Borden,

Prosecutor; Ronald Bakley, Detective; James

Barnum, Chief; John Doe.

James F. MULVIHILL, Defendant/Third-Party Plaintiff, v. CAMDEN COUNTY PROSECUTOR, Third-Party Defendant.

No. 96-5236.

United States Court of Appeals Third Circuit.

Submitted under Third Circuit LAR 34.1(a).

Jan. 15, 1997.

Decided May 15, 1997.

George Sherwood, Delmont, NJ, Pro Se.

Angela J. Washington, Office of Camden County Counsel, Camden, NJ, for Appellee, Edward Borden.

Anthony J. Fusco, Jr., Passaic, NJ, for Appellee, Ronald Bakley.

Marc I. Bressman, Budd, Larner, Gross, Rosenbaum, Greenberg & Sade, Cherry Hill, NJ, for Appellee, James Barnum.

Before: SLOVITER, Chief Judge, SCIRICA and SEITZ, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

In this section 1983 action, we confront, once again, the fallout from the drug scourge afflicting our society.

George Sherwood ("Plaintiff ") appeals from an order of the district court granting the motions of Defendants, Ronald Bakley and James Barnum ("Defendants"), for summary judgment. Plaintiff sought relief against Defendants for allegedly violating his fourth and fourteenth amendment rights by falsifying an affidavit used to obtain a warrant to search Plaintiff's residence. The district court exercised jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is plenary.

I.

The following facts are undisputed. A confidential informant ("informant") whose past tips led to several drug-related arrests, informed Defendant Barnum, chief of police in Franklin Township, New Jersey, that Plaintiff was selling methamphetamine from his residence. The informant told Defendant Barnum that he could arrange a narcotics purchase from Plaintiff. On April 4, 1990, Defendant Barnum, acting undercover, supervised a controlled drug purchase from Sherwood's residence.

Defendant Bakley later drafted, and both Defendants signed, an affidavit used to seek a warrant to search Plaintiff's residence. The affidavit chronicled the controlled transaction by stating:

(g) That after searching said informant, same was driven to the Sherwood residence by Chief Barnum who gave this informant a quantity of money and requested same go to Sherwood and purchase a quantity of purported methamphetamine.

(h) That while being watched by Chief Barnum, the individual did go to the rear door of the residence and after knocking on same, George Sherwood came to the door and came outside. Then, both individuals went back into the house.

(i) That a few minutes later, said person exited the house and returned directly to Chief Barnum's vehicle. At this time, said informant handed Chief Barnum a plastic bag containing a chunk of a white substance which same said was purchased from George Sherwood.

(Appellant's Br. at App. E-1.3.) Defendant Bakley later identified the substance as methamphetamine.

Plaintiff contends that each of the quoted paragraphs is false because each omits and/or affirmatively misrepresents facts surrounding the controlled transaction. First, paragraph (g) of the affidavit omits that a third person, Michael Vasgar, who was unaware that Defendant Barnum was a police officer and that he was aiding in a controlled narcotics purchase, accompanied Defendant Barnum and the informant to Plaintiff's residence on April 4, 1990. ¹ In this same paragraph, the affidavit states that Defendant Barnum handed money to the informant and instructed him to purchase methamphetamine from Plaintiff. The parties do not dispute that Vasgar accompanied Defendant Barnum and the informant to Plaintiff's residence and that Defendant Barnum actually gave Vasgar the money and instructed him to make the purchase.

Paragraph (h) of the affidavit omits the identity of the "individual" who approached Plaintiff and disappeared into the residence with Plaintiff. The parties do not dispute that it was Vasgar, acting on Defendant Barnum's instruction, who did so.

Finally, paragraph (i) of the affidavit omits that the "person" who returned from the residence to Defendant Barnum's vehicle was Vasgar. This paragraph then states that the informant handed the methamphetamine packet to Defendant Barnum and told Barnum that he had purchased it from Plaintiff. The parties also do not dispute that it was Vasgar who did so.

On the basis of this affidavit, which Defendants admit was partially false, a Gloucester Township Municipal Court judge approved the issuance of a warrant to search Plaintiff's residence. The resultant search revealed the presence of marijuana, methamphetamine, cocaine, Valium and drug paraphernalia. Plaintiff eventually plead guilty in New Jersey Superior Court, Law Division, to two counts of third degree possession with intent to distribute methamphetamine under N.J.S.A. §§ 2C:35-5a(1) and 2C:35-5b(9). His conviction was later overturned by the Superior Court of New Jersey, Appellate Division, after the state conceded that " 'the affidavit contained a material falsehood, and that if the falsehood is excised ... there is insufficient information to establish probable cause to support the warrant.' " (Appellant's Br. at App. E-2.2 to E-2.3.)

Plaintiff thereafter instituted this section 1983 action. Plaintiff alleged that the search warrant was invalid because it was based on a falsified affidavit, and thus, the search of his residence violated his fourth and fourteenth amendment rights. Defendants moved for summary judgment on the basis that as public officials, they were entitled to qualified immunity. In reviewing the affidavit, the district court excised the affirmative misrepresentations and supplied the omitted facts "to show the buy which actually took place on April 4, 1990." Id. at App. E-10.15. The district court then reevaluated the municipal court judge's probable cause finding and concluded that no genuine issue of material fact existed and that this "corrected affidavit" established probable cause. The district court therefore granted Defendants' motions for summary judgment. This appeal followed.

II.

As government officials engaged in discretionary functions, Defendants are qualifiedly immune from suits brought against them for damages under section 1983 "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Siegert v. Gilley, 500 U.S. 226, 232-33, 111 S.Ct. 1789, 1793-94, 114 L.Ed.2d 277 (1991) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985)). Where a defendant asserts a qualified immunity defense in a motion for summary judgment, the plaintiff bears the initial burden of showing that the defendant's conduct violated some clearly established statutory or constitutional right. See In re City of Phila. Litig., 49 F.3d 945, 961 (3d Cir.1995); D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1368 (3d Cir.1992); see also Albright v. Rodriguez, 51 F.3d 1531, 1534-35 (10th Cir.1995).

Only if the plaintiff carries this initial burden must the defendant then demonstrate that no genuine issue of material fact remains as to the "objective reasonableness" of the defendant's belief in the lawfulness of his actions. Albright, 51 F.3d at 1535. This procedure eliminates the needless expenditure of money and time by one who justifiably asserts a qualified immunity defense from suit. See Siegert, 500 U.S. at 232, 111 S.Ct. at 1793. Thus, we begin with the predicate question of whether Plaintiff's allegations are sufficient to establish " 'a violation of a constitutional right at all.' " In re City of Phila. Litig., 49 F.3d at 961 (quoting Siegert, 500 U.S. at 232, 111 S.Ct. at 1793); Middle Bucks Area Vocational Technical Sch., 972 F.2d at 1368.

III.

A section 1983 plaintiff who challenges the validity of a search warrant by asserting that law enforcement agents submitted a false affidavit to the issuing judicial officer must satisfy the two-part test developed by the Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978). See Lippay v. Christos, 996 F.2d 1490, 1502, 1504 (3d Cir.1993). This is true whether the alleged falsehood is an affirmative misrepresentation or a material omission. See, e.g., United States v. Frost, 999 F.2d 737, 742-43 & n. 2 (3d Cir.1993); Stewart v. Donges, 915 F.2d 572, 582 (10th Cir.1990).

Under Franks and its progeny, the plaintiff must prove, by a preponderance of the evidence, (1) that the affiant knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant; and (2) that such statements or omissions are material, or necessary, to the finding of probable cause. See Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684-85; Frost, 999 F.2d at 742-43; Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir.1994).

Defendants admit generally that the affidavit misrepresents the facts surrounding the controlled purchase by Vasgar, and that they acted with knowledge and deliberateness in drafting the affidavit as they did. ² Thus, the first prong of the Franks standard is satisfied as to all of the falsehoods contained in the affidavit.

We focus, then, on whether any of the affirmatively false statements or omissions are material to the finding of probable cause. Under Franks, falsehoods are deemed material to the finding of probable cause if the affidavit, "with the ... false material set to one side ... is insufficient to establish probable cause." Franks, 438 U.S. at 156, 98 S.Ct. at 2676. Thus, we proceed to remove the falsehoods from the affidavit that was submitted to the municipal court judge, and then, to determine whether Plaintiff has shown there...