361 F.3d 232 (3rd Cir. 2004), 02-4532, Doe v. Groody

Docket Nº:02-4532.
Citation:361 F.3d 232
Party Name: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 Frackvi
Case Date:March 19, 2004
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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361 F.3d 232 (3rd Cir. 2004)

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


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, Third Circuit

March 19, 2004

Argued Sept. 15, 2003.

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Andrew A. Solomon (Argued), Malvern, John M. Dodig, Master, Weinstein, Schnoll & Dodig, Philadelphia, for Appellees.

John G. Knorr, III, (Argued), Office of Attorney General of Pennsylvania, Department of Justice, Harrisburg, for Appellants.

Before ALITO, AMBRO and CHERTOFF, Circuit Judges.


CHERTOFF, Circuit Judge.

Four police officers appeal from the denial of qualified immunity in a lawsuit alleging the unlawful search of occupants of a residence in Schuylkill County, Pennsylvania. The officers argue that they did not violate 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 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 reasonable 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 investigation 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.1 The typed affidavit in support of the warrant application 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 addition, 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 leaving John Doe's residence. Finally, the affidavit indicated that the most recent methamphetamine purchase by the informant had occurred within the preceding 48 hours.

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:

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The search should also include all occupants of the residence as the information developed shows that [Doe] has frequent visitors 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 belongings to prevent the removal, concealment, or destruction of any evidence requested in this warrant. It is the experience of your co-affiants that drug dealers often attempt to do so when faced with impending apprehension 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.

. . . .

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.

¶ ¶ 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 21-3-03, this 6th of March 1998." Under the legend 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 "[s]pecific description of premises and/or persons to be searched"; the "[n]ame of owner, occupant or possessor of said premises to be searched"; a description of the nature and date of the statutory violations; and for the basis of "[p]robable 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 "[d]ate of violation" and "[p]robable cause belief," the face sheet specifically referred to the typed affidavit of probable cause attached to the warrant. But in answering the question "[s]pecific description of premises and/or persons to be searched," the attached typed affidavit was not mentioned. Rather, the form contained a typewritten entry naming only John Doe, giving his description, 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 encountering females because they enlisted a female traffic meter patrol officer to be available if necessary to assist in the search. As the officers approached 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,

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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 officer 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 alleged, among other things, that the officers illegally strip searched Jane and Mary Doe. After preliminary litigation 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 motion 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 directly 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 summary judgment based on qualified immunity.


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, a denial of qualified immunity 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. § 1291. Behrens v. Pelletier, 516 U.S. 299, 307, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (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).

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 officer to be free of the "burdens of litigation." Mitchell, 472 U.S. at 526, 105 S.Ct. 2806. But the immunity is forfeited if an officer's conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Wilson...

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