Madison v. Manter, No. 71-1028.

• Decision Date: 28 April 1971
• Docket Number: No. 71-1028.
• Citation: Madison v. Manter, 441 F.2d 537 (1st Cir. 1971)
• Parties: Jeffrey L. MADISON, Plaintiff, Appellant, v. George W. MANTER et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

441 F.2d 537 (1971)

Jeffrey L. MADISON, Plaintiff, Appellant, v. George W. MANTER et al., Defendants, Appellees.

No. 71-1028.

United States Court of Appeals, First Circuit.

April 28, 1971.

Daniel F. Featherston, Jr., Boston, Mass., with whom Francis C. Lynch, Jr., Springfield, Mass., was on brief, for appellant.

Richard W. Renehan, Boston, Mass., with whom Hill & Barlow, Boston, Mass., was on brief, for appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

This is an action under 42 U.S.C. § 1983 for damages for illegal search and seizure and arrest. The complaint was dismissed for failure to state a claim upon which relief may be granted. After the dismissal plaintiff moved to amend by adding two paragraphs. The district court denied the motion, "for the reason that the complaint as if amended fails to state a claim." Plaintiff appealed. Inherent in this appeal is what plaintiff meant by the new allegations.

The complaint alleges that the plaintiff Madison was a resident of West Tisbury, Massachusetts; that the defendants Manter, Bunker and Maida were local police officers; that the defendants Bunker and Maida observed a (smoker's) pipe on the floor of plaintiff's parked car; that, without entering the car, they concluded that the pipe contained a residue of marijuana;¹ that they reported this belief to the defendant Manter; that Manter prepared an affidavit and filed an application for a search warrant based on this report; that the search warrant was issued; that plaintiff's car was searched and the pipe taken; that a chemical analysis proved that there was in fact marijuana in the pipe; that criminal proceedings were instituted against plaintiff in the state court; that thereafter the court ordered the evidence suppressed and that, as a result, the proceedings were dismissed.

In the proposed complaint it is alleged that "defendants knew or should have known that they did not have * * * probable cause for the issuance of a search warrant." There is a substantial difference between a claim that the defendants knew that probable cause was lacking, and that they should have known. The one supports a finding of malice; the other simply of negligence. Upon our pointing out the difference, and the single tenor of his brief, plaintiff conceded that he was not claiming "knew" and that he really meant to charge negligence. We so take the complaint, and assume that plaintiff could, conceivably, establish that although defendants proved to be right in their diagnosis of the contents of the pipe, they were lucky rather than skillful.²

In sum, the complaint charges that defendants in good faith, but negligently, sought a search warrant upon an affidavit that they believed was sufficient, as did the clerk of court in issuing the warrant, but which in law was insufficient; that as a result plaintiff was arrested and criminal proceedings were instituted against him, which failed because of the inadequacy of the affidavit. The question, accordingly, is whether negligent conduct, often sufficient to create tort liability, and hence to support section 1983 actions, Whirl v. Kern, 5 Cir., 1969, 407 F.2d 781, cert. denied 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177; cf. Monroe v. Pape, 1961, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492, should not have that effect, for reasons of policy, in the case of a police officer applying for a warrant.

Plaintiff concedes, as we believe he must, that a private citizen who seeks a warrant under such conditions would not be liable. We see no basis for distinguishing that from a citizen seeking a complaint leading to arrest and criminal prosecution. Boylen v. Tracy, 1925, 254 Mass. 105, 149 N.E. 674; Krulevitz v. Eastern R.R., 1886, 140 Mass. 573, 5 N. E. 500. Plaintiff concedes that under a section 1983 action he remains bound by Massachusetts common law as to privilege, Pierson v. Ray, 1967, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288, at least unless Massachusetts law is substantially out of line with common law immunity elsewhere. It is not. E. g., MacRae v. Brant, 1967, 108 N.H. 177, 230 A.2d 753; Konas v. Red Owl Stores, Inc., 1965, 158 Colo. 29, 404 P.2d 546; Doane v. Anderson, 18...