Kathryn Lesoine v. County of Lackawanna, Pa

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 02-1967
KATHRYN LESOINE
v.
COUNTY OF LACKAWANNA, PA;
MICHAEL BARRASSE, Esq.,
sued in his individual and official capacity
as Lackawanna County District Attorney;
EUGENE M . TALERICO, JR., Esq., sued in his individual
capacity as Lackawanna County Assistant District Attorney;
AMY SHWED, Esq., sued in her individual capacity as
Lackawanna County Assistant District Attorney;
JOHN FOX, sued in his individual capacity as detective for
the Lackawanna District Attorney’s Office;
JOSEPH JORDAN, sued in his individual capacity as detective
for the Lackawanna District Attorney’s Office;
JAMES M. REILLY, sued in his individual capacity as detective
for the Lackawanna District Attorney’s Office
John Fox,
Appellant
No. 02-1968
KATHRYN LESOINE
v.
COUNTY OF LACKAWANNA, PA;
MICHAEL BARRASSE, Esq.,
sued in his individual and official capacity

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as Lackawanna County District Attorney;
EUGENE M . TALERICO, JR., Esq., sued in his individual
capacity as Lackawanna County Assistant District Attorney;
AMY SHWED, Esq., sued in her individual capacity as
Lackawanna County Assistant District Attorney;
JOHN FOX, sued in his individual capacity as detective for
the Lackawanna District Attorney’s Office;
JOSEPH JORDAN, sued in his individual capacity as detective
for the Lackawanna District Attorney’s Office;
JAMES M. REILLY, sued in his individual capacity as detective
for the Lackawanna District Attorney’s Office
Joseph Jordan,
Appellant
No. 02-1969
KATHRYN LESOINE
v.
COUNTY OF LACKAWANNA, PA;
MICHAEL BARRASSE, Esq.,
sued in his individual and official capacity
as Lackawanna County District Attorney;
EUGENE M . TALERICO, JR., Esq., sued in his individual
capacity as Lackawanna County Assistant District Attorney;
AMY SHWED, Esq., sued in her individual capacity as
Lackawanna County Assistant District Attorney;
JOHN FOX, sued in his individual capacity as detective for
the Lackawanna District Attorney’s Office;
JOSEPH JORDAN, sued in his individual capacity as detective
for the Lackawanna District Attorney’s Office;
JAMES M. REILLY, sued in his individual capacity as detective
for the Lackawanna District Attorney’s Office
James M. Reilly,

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Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 98-cv-00764)
District Judge: Hon. A. Richard Caputo
Argued October 31, 2002
Before: SLOVITER, FUENTES, Circuit Judges, and FULLAM ,* District Judge
(Filed: August 14, 2003)
John P. Moses (Argued)
Moses & Gelso
Wilkes-Barre, PA 18701
Attorney for Appellants
Michael D. Collins (Argued)
Tannersville, PA 18372
Attorney for Appellee
OPINION OF THE COURT
* Hon. John P. Fullam, Senior Judge, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.

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1 The District Court granted the County’s motion for summary judgment, holding that
the County is not liable under a theory of municipal liability because the District
Attorney’s act of refusing to return Lesoine’s photographs was not an official policy, and
that Lesoine failed to provide sufficient evidence to support her claim against the County
for failure to train or supervise its employees.
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SLOVITER, Circuit Judge.
Plaintiff Kathryn Lesoine filed a civil rights action pursuant to 42 U.S.C. § 1983
against, inter alia, the County of Lackawanna1 and three police detectives, alleging that
they violated her constitutional rights when they conducted two searches of her property.
The police officers filed a motion for summary judgment based on qualified immunity,
which the District Court denied. Lesoine v. County of Lackawanna, No. 3: CV-98-764
(M.D. Pa. March 4, 2002) (“Dist. Ct. Op. 2002”). The officers appeal.
I.
Appellants, James M. Reilly, Joseph Jordan and John Fox, were at all pertinent
times police detectives in Lackawanna County, Pennsylvania. Lesoine is a photographer.
In July or August of 1995, Lesoine took photographs of her stepdaughter and her
stepdaughter’s two female friends (ages 15 and 16) standing nude under an outdoor
shower at Lesoine’s vacation home in Martha’s Vineyard. The photographs were taken
with the subjects’ knowledge but without the knowledge of their parents. In April of
1996, Trish Heil, an amateur photographer, visited Lesoine’s home and art studio.
During the visit, Lesoine showed Heil much of her work, including the photographs from
Martha’s Vineyard. Heil recognized the subjects and told their parents about the

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photographs.
The parents called the District Attorney’s Office and requested an investigation.
On May 9, 1996, Reilly and Jordan went to the studio and requested that Lesoine give
them consent for a warrantless search. Lesoine signed a “Consent to Warrantless Search”
form and a friend, who was present, signed as a witness. The detectives then seized a box
of photographic prints, including 35 photographs and seven negative sleeves.
After returning to their office, Reilly and Walter Carlson, Chief County Detective,
drafted a search warrant for “[p]hotographs, nude and semi-nude photographs of minor
children. Business records pertaining to photography business. Computers and computer
equipment and records. Telephone logs or records.” App. at 874. The warrant alleged
that Lesoine violated “18 Pa. C.S.A. § 6312 Sexual Abuse of Children” and “18 Pa.
C.S.A. § 6301 Corruption of Minors.” App. at 874. Reilly and Carlson submitted the
draft warrant to Assistant District Attorney (“ADA”) Eugene Talerico for review, and he
approved. On May 9, 1996, Reilly and Carlson submitted the search warrant to District
Justice Robert Russell who approved and issued the warrant. Reilly, Jordan, and Fox
executed the warrant on the same day, May 9, 1996. Numerous photographs were seized
and, although the warrant specified photographs of “minor children,” the detectives
seized studies of nude and semi-nude adults, whom Appellants describe as “youngish-
looking adults.” Br. of Appellants at 15.
The next day, Reilly, Carlson and Talerico drafted a second, virtually identical

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2 The District Court granted summary judgment in favor of several other defendants
on the basis of qualified immunity. That part of the order is not before us on this appeal.
6
search warrant. ADA Amy Shwed reviewed and approved the search warrant prior to its
submission to District Justice George E. Clark, Jr. District Justice Clark approved and
issued the warrant on May 10, 1996. Reilly, Jordan, Fox and Shwed returned to
Lesoine’s studio and seized Lesoine’s computer, software, disks, and digital audio tapes.
Lesoine was not prosecuted in connection with the photographs under either
Pennsylvania statute identified in the search warrant or otherwise. She subsequently filed
this suit, alleging violations of her First, Fourth, Fifth and Fourteenth Amendment rights,
as well as various state claims. The District Court denied the detectives’ motion for
summary judgment on the basis of qualified immunity. The detectives argue on appeal
that: (1) there was probable cause for the issuance of the warrants; (2) no clearly
established right was violated; and (3) their actions were objectively reasonable.2
II.
This court has jurisdiction to review a district court order denying qualified
immunity at the summary judgment stage under the collateral order doctrine to the extent
that the denial turns on questions of law. Mitchell v. Forsyth, 472 U.S. 511, 527-28
(1985). We exercise plenary review over a district court’s denial of a motion for
summary judgment on the basis of qualified immunity and consider all facts in the light
most favorable to the non-moving party. Eddy v. Virgin Islands Water & Power Auth.,

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256 F.3d 204, 208 (3d Cir. 2001); Sterling v. Borough of Minersville, 232 F.3d 190, 192
n.1 (3d Cir. 2000). “This Court has recognized that the question of whether a
constitutional right is clearly established and the question of whether the officer acted
reasonably are matters of law for the court to decide.” Bartholomew v. Pennsylvania, 221
F.3d 425, 428 (3d Cir. 2000).
To determine whether qualified immunity should be afforded the detectives, we
first assess whether Lesoine’s allegations are sufficient to establish the violation of a
constitutional or statutory right. Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000). If
such a violation is adequately alleged, we next determine whether the right allegedly
violated was clearly established such that a reasonable person would have known about it.
Id. In making our ultimate determination, we should keep in mind that the availability of
qualified immunity for public officials, especially police detectives, “is both necessary
and sufficient to preserve [their] ability . . . to function effectively.” Marrero v. City of
Hialeah, 625 F.2d 499, 510-11 (5th Cir. 1980).
The District Court found that the detectives violated Lesoine’s Fourth Amendment
rights. In its memorandum and order of May 3, 2000, Lesoine v. County of Lackawanna,
No. 3:98-CV-0764 (M.D. Pa. May 3, 2000), the District Court held that (1) the search
warrants were “unsupported by probable cause” and (2) the warrants “failed to state with
reasonable particularity the items to be seized.” App. at 258. Subsequently, in its
memorandum and order of March 4, 2002, the District Court revisited its analysis and

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held that it did not need to determine if the warrants were supported by probable cause
because the items were not described with reasonable particularity. Dist. Ct. Op. 2002 at
9. “To be constitutionally sound, search warrants must state probable cause and
‘particularly describ[e] the place to be searched, and the persons or things to be seized.’”
Bartholomew, 221 F.3d at 428 (quoting U.S. Const. amend. IV).
We conclude the search warrants at issue here were not supported by probable
cause. In the supporting affidavit, Reilly justified the need for the warrants based on
possible violations of 18 Pa. Cons. Stat. Ann. §§ 6312 and 6301. Section 6312, Sexual
Abuse of Children, makes it a crime to “cause[] or knowingly permit[] a child under the
age of 18 years to engage in a prohibited sexual act . . . if such person knows, has reason
to know or intends that such act may be photographed, videotaped, depicted on computer
or filmed.” 18 Pa. Cons. Stat. Ann. § 6312(b). The statute also defines a “prohibited
sexual act” as, among other things, “lewd exhibition of the genitals or nudity if such
nudity is depicted for the purpose of sexual stimulation or gratification of any person who
might view such depiction.” 18 Pa. Cons. Stat. Ann. § 6312(a).
Section 6301 makes it a crime for an adult to, “by any act corrupt[] or tend[] to
corrupt the morals of any minor.” Pa. Cons. Stat. Ann. § 6301(a)(1). The statute covers
“a broad range of conduct.” Commonwealth v. Decker, 698 A.2d 99, 101 (Pa. Super.
1997) (quotation omitted). We have even suggested that “it pertains with equal force to
conduct such as gambling, underage drinking or drug use . . . [and] [i]t is broad enough to

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include allowing a minor to view an ‘R’ rated video.” United States v. Galo, 239 F.3d
572, 582 (3d Cir. 2001). Pennsylvania courts have defined actions that tend to corrupt the
morals of minors as those that “would offend the common sense of the community and
the sense of decency, propriety and morality which most people entertain.”
Commonwealth v. DeW alt, 752 A.2d 915, 918 (Pa. Super. 2000) (quotation omitted).
However, the possession of pictures of nude minors, without more, is protected
speech under the First Amendment. Osborne v. Ohio, 495 U.S. 103, 112 (1990)
(upholding Ohio’s anti-child pornography statute because the Ohio Supreme Court had
interpreted the law to proscribe not merely nudity, but nudity constituting a lewd
exhibition or graphic focus on the genitals); New York v. Ferber, 458 U.S. 747, 765 n.18
(1982) (holding that nudity without more is protected expression). Therefore, Lesoine’s
mere possession of such pictures does not provide probable cause that she was engaging
in illegal conduct under federal or state law. In fact, in a recent decision arising out of the
same incident this court concluded as a matter of law that none of the photographs could
be held to fall within the federal definition of sexually explicit conduct. See Doe v.
Chamberlin, 299 F.3d 192, 197 (3d Cir. 2002) (affirming the entry of summary judgment
in favor of Lesoine and against the parents in a civil suit brought by the parents). After
independent review of the photographs, we reach the same conclusion. Yet, Lesoine’s
possession of the pictures in question was the only articulated source of probable cause

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3 Reilly’s affidavit also notes that during the consensual search the detectives found
photographs of nude children, notwithstanding Lesoine’s statement to the brother of one
of the girls photographed that she had turned over to him all the pictures she possessed.
However, none of the additional pictures seized were alleged to violate §§ 6312 or 6301.
10
for the search warrants at issue.3
The affidavits in support of the warrant applications also do not describe how
Lesoine allegedly violated the cited statutes; for example, they do not mention how the
morals of any minor allegedly were corrupted. Although Pennsylvania law has
interpreted § 6301 broadly, see Galo, 239 F.3d at 582, the affidavits made no effort to
allege conduct violative of the statute. The facts set out in the affidavits of probable
cause simply do not provide a sufficient basis upon which a neutral magistrate could
assess whether a warrant should be issued.
The Fourth Amendment also requires that a warrant must describe the place to be
searched and the items to be seized with reasonable particularity. U.S. Const. amend. IV.
“The particularity requirement is intended to prevent the police from undertaking a
general, exploratory rummaging through a person’s belongings.” Bartholomew, 221 F.3d
at 428 (quotation omitted). The warrants at issue in this case authorized the seizure of
“[p]hotographs, nude and semi-nude photographs of minor children. Business records
pertaining to photography business. Computers and computer equipment and records.
Telephone logs or records.” App. at 874. Our review of a warrant’s particularity is
heightened when the materials sought are protected by the First Amendment. See Zurcher

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4 Lesoine argues that they simply needed to include language from the Pennsylvania
statute to limit their search to evidence showing a sexual motivation for the pictures. As
the Fourth Circuit explained in United States v. Dornhofer, 859 F.2d 1195, 1198 (4th Cir.
1988) (quotation omitted), “when a warrant describes the sought for material in the
graphic terms of the statute on the sexual exploitation of children, . . . [it] is described
with all the particularity necessary to satisfy the Fourth Amendment.”
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v. Stanford Daily, 436 U.S. 547, 564 (1978) (“Where the materials sought to be seized
may be protected by the First Amendment, the requirements of the Fourth Amendment
must be applied with ‘scrupulous exactitude.’”) (citing Stanford v. Texas, 379 U.S. 476,
485 (1965)). The Supreme Court in Zurcher advised that, “[w]here presumptively
protected materials are sought to be seized, the warrant requirement should be
administered to leave as little as possible to the discretion or whim of the officer in the
field.” 436 U.S. at 564.
We recognize that it would have been easier to draft a search list if the detectives
were searching for physical objects rather than for evidence of a sexual motive for taking
the pictures. It was probably difficult to predict what evidence might be present to
demonstrate sexual motive. Unlike child pornography, which may be defined with
tangible parameters, evidence of sexual stimulation or gratification is more difficult to
describe in a warrant.
However, it is apparent that the warrant could have been drafted with greater
precision.4 At a minimum, it is impermissibly overbroad because it requested seizure of
lawfully possessed material of no evidentiary value. See Zurcher, 436 U.S. at 554 (noting

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that only fruits, instrumentalities, and evidence of a crime are subject to seizure under the
Fourth Amendment). The warrant placed no restrictions on the types of business or
computer records that could be seized, regardless of their connection, if any, to a violation
of § 6312. As we stated in Bartholomew, “[t]he particularity requirement is intended to
prevent the police from undertaking a general, exploratory rummaging through a person’s
belongings.” 221 F.3d at 428 (quotation omitted). This requirement was not met by a
blanket search and seizure of “business records, pertaining to photography business.
Computers and computer equipment and records. Telephone logs or records.” App. at
874.
The District Court correctly held that the items to be seized were not described
with reasonable particularity, and included material that was not subject to §§ 6301 or
6312 under any reasonable interpretation of those statutes. The warrants violated
Lesoine’s constitutional rights.
A determination that the detectives’ execution of invalid search warrants violated
Lesoine’s constitutional rights is only the first step in our analysis. The detectives are still
entitled to qualified immunity unless the rights violated were clearly established. For a
right to be clearly established, “‘[t]he contours of the right must be sufficiently clear that
a reasonable official would understand that what he is doing violates that right.’”
Gruenke, 225 F.3d at 299 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). A
public official is entitled to qualified immunity if he/she can demonstrate that he/she

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5 Jordan participated with Reilly in the consent search but that is not a basis for the
claimed constitutional violations.
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“neither knew nor should have known” he/she was violating another’s rights. Harlow v.
Fitzgerald, 457 U.S. 800, 818-19 (1982).
Lesoine argues that the detectives could not have reasonably believed that their
acquisition and execution of the search warrants would not violate her constitutional
rights as the warrants were not supported by probable cause and did not meet the
constitutional requirement of particularity. In denying qualified immunity to the three
detectives, the District Court treated the three of them as a unit. We have reviewed the
record, and believe that they may not be similarly situated.
We consider first the position of Detectives Fox and Jordan. Our record review
shows that the only actions taken by Fox and Jordan5 were execution of the warrants. In
the context of evidence suppression, the Supreme Court has held that 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.” United
States v. Leon, 468 U.S. 897, 923 (1984). However, despite the evident deficiencies of
the search warrants here, we believe that an officer executing the warrant could have
reasonably presumed he was not violating Lesoine’s rights.
First, the contours of Pa. Cons. Stat. Ann. §§ 6312 and 6301 were not well-defined
when the warrant was executed. Although the Supreme Court cases are clear that the

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First Amendment protects some forms of nude photographs, the Court’s decisions were
not within the context of an application of §§ 6312 or 6301. See Wilson v. Layne, 526
U.S. 603, 615 (1999) (“the right allegedly violated must be defined at the appropriate
level of specificity before a court can determine if it was clearly established.”). Section
6312 prohibits the possession of otherwise legal photographs of nude children when taken
for the purpose of sexual stimulation or gratification. The language in the Pennsylvania
statute does not expressly define what qualifies as evidence of sexual stimulation and the
case law applying the section is sparse. See Commonwealth v. Savich, 716 A.2d 1251,
1257 (Pa. Super. 1998) (“proof of purpose of personal sexual gratification may be
established by the circumstances surrounding the videotaping” when stranger videotaped
minors showering without their knowledge or permission). Therefore, given the
uncertain boundaries of §§ 6312 and 6301, a reasonable detective may have believed that
he was justified to search for otherwise constitutionally protected items as evidence of a
sexual motive.
Second, each warrant was approved by an ADA and signed by a district justice.
Although a judge’s approval of a warrant does not per se shield an officer from liability
for the execution of an invalid warrant, Malley v. Briggs, 475 U.S. 335, 345-46 (1986),
the Supreme Court “has consistently accorded primary evidentiary weight to a
magistrate’s determination of probable cause.” Id. at 351. In this case, a different district
justice and ADA approved each of the search warrants. Under these circumstances, we

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must exercise caution in finding that the law at issue was clearly established that the
warrants were defective. See Barts v. Joyner, 865 F.2d 1187, 1194 (11th Cir. 1989) (in
the context of a motion to suppress, “when a state court judge upholds the
constitutionality of police actions, that alerts us to be particularly careful in concluding
that the law was truly clearly established before we permit the officers to be held civilly
liable.”).
Moreover, it was not unreasonable for Jordan and Fox to rely on the experience
and expertise of the ADAs who helped draft and who approved the warrants. See Bilida
v. McCleod, 211 F.3d 166, 174-75 (1st Cir. 2000) (“[p]lausible instructions from a
superior or fellow officer support qualified immunity where, viewed objectively in light
of the surrounding circumstances, they could lead a reasonable officer to conclude that
the necessary legal justification for his actions exists (e.g., a warrant, probable cause,
exigent circumstances)”). Jordan and Fox were not involved in drafting the warrants and
relied on the local procedures and review by the ADAs. See Wilson, 526 U.S. at 617
(where the state of the law is uncertain, it was reasonable for officers to rely on a
Department ride-along policy).
Based on the foregoing, we conclude that Jordan and Fox were entitled to qualified
immunity.
In contrast, Reilly’s connection to the events was much deeper. Fox testified at his
deposition: “Well, Detective Reilly. It was his investigation. He was in charge of the

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search. He initiated the paperwork.” App. at 822. Reilly was also the affiant on both the
May 9 and May 10 warrants. App. at 874, 885. Based on his intimate involvement in
drafting the warrants, Reilly cannot hide behind the approval of the ADAs and district
justices. Reilly had the opportunity, in the first instance, to ensure that the warrants met
the requirements of the Constitution. There is certainly an issue as to whether an
experienced police officer should have known that the warrants failed to describe the
items to be searched with the specificity required by the Constitution. We are unwilling,
at this juncture of the case, to hold that Reilly is entitled to qualified immunity as a matter
of law.
We recognize the awkwardness of requiring the action to proceed against Reilly
without the two district attorneys with whom he drafted the search warrants, Talerico and
Shwed. But Lesoine chose not to sue them on this basis, and ADA Talerico only remains
in the suit “with respect to Count V for unlawfully refusing to return the pictures,” as
does District Attorney Michael Barrasse. App. at 15. Nonetheless, we hold that the
actions against Reilly can proceed. We do not foreclose the District Court from
reexamining this issue, even before trial.
For the reasons stated above, the judgment of the District Court is affirmed in part
and reversed in part.

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TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge

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Fullam, J., dissenting in part
I respectfully dissent, because I believe the decision of the district court should be
affirmed in all respects. The district court held, and the majority and I all agree, that the
search warrants lacked probable cause, and were facially overbroad. Ms. Lesoine’s
constitutional rights under the Fourth Amendment were indeed violated, and the legal
principles involved were clearly established: Among other things, it should have been
clear to all of the appellants that they could seize only items specified in the warrant, or at
least adequately and meaningfully described in the warrant. In my view, no reasonable
police officer could possibly carry out seizures of the magnitude involved in this case -
virtually all portable assets of an ongoing photography business - in the belief that such
seizures were sanctioned by the search warrants in the possession of the officers.
It must be borne in mind that a substantial number of non-obscene photographs
were seized before any warrant of any kind was obtained. While the officers initially had
Ms. Lesoine’s consent to conduct a search, there was no consent to the initial seizure,
which, in and of itself, was a violation of the Fourth Amendment. The officers knew, or
at least should have known, that neither of the magistrates who issued the two search
warrants had been shown any of the photographs which were the ostensible basis for the
two subsequent forays and seizures.
The majority suggests that, because to some extent the statutes criminalizing
“sexual abuse of children” and “corruption of minors” may depend upon the motive of the

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actor, the nature of evidence which tends to support a criminal charge under these
statutes is correspondingly difficult to define. That may be so, although I suspect that
there is less uncertainty than the majority posits. But, in my view, that is entirely beside
the point: A warrant which authorizes the seizure of photographs of minors simply
cannot be relied upon to justify the wholesale seizure of photographs of adults.
Photographs of adults cannot possibly be viewed, in the context of this case, as a basis for
the seizure of business records and computers.
In short, regardless of whether the officers are chargeable with knowledge that the
search warrants lacked probable cause, they simply cannot, on this record, have
reasonably believed that they were authorized to seize materials not covered by the
warrant.
Although it is true that Detectives Fox and Jordan were not directly involved in the
obtaining of the search warrants and were not in charge of the investigation, and thus may
well be less culpable than Detective Reilly, they were in fact involved in the seizures
which constituted a violation of Ms. Lesoine’s constitutional rights. Whether they may
ultimately be held liable in damages to the same extent as Detective Reilly - indeed,
whether their employers or superiors may have an obligation, or at least a willingness, to
indemnify them against any ultimate verdict - are matters to be addressed in subsequent
proceedings, and are not before us on this appeal. Under United States v. Leon, 468 U.S.
897 (1984) the district court properly denied qualified immunity to all of the appellants.

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