JOHN DOE, Parent v. Joseph Groody

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 02-4532
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
On Appeal from the United States
District Court
for the Middle District of Pennsylvania
(Dist. Court No. 00-cv-00356)
District Judge: Honorable James F.
McClure, Jr.
Argued: September 15, 2003
Before: ALITO, AMBRO and
CHERTOFF, Circuit Judges.
(Filed March 19, 2004)
Andrew A. Solomon (Argued)
2 Long Lane
Malvern, PA 19355
John M. Dodig
Master, Weinstein, Schnoll & Dodig
1818 Market Street, Suite 3620
Philadelphia, PA 19103
Counsel for Appellees
John G. Knorr, III, Esq. (Argued)
15th Floor
Office of Attorney General of
Pennsylvania

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Department of Justice
Strawberry Square
Harrisburg, PA 17120
Counsel for Appellants
OPINION OF THE COURT
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.
I.
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:
The search should also
1 We refer to the family in question
as Doe because they filed their case under
that name, although the actual names of
family members are disclosed in the
record.

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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
c o n c e a l c o n t r o l l e d
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 acutally 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

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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, 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.
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, a
denial of qualified immunity that turns on
an issue of law—rather than a factual
dispute—falls within the collateral order

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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 (1996); Mitchell v.
Forsythe, 472 U.S. 511, 525 (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. 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 v. Layne, 526 U.S. 603, 614
(1999) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). 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 (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, 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. , No. 02-811, slip op. at 12 (U.S.
filed Feb. 24, 2004).2 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).
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.3 Both Jane and Mary Doe
were physically removed to the bathroom
2 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.
3 Because the Fourth Amendment
(as incorporated 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 (1994).

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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.
The nature of the intrusion alleged
is significant. In Leveto v. Lapina, 258
F.3d 156, 172-75 (3d Cir. 2001), 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 purposes. 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
denied qualified immunity for the search,
not the detention. 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 (1968);
Leveto, 258 F.3d at 163-64. Rather, the
officers concede that Jane and Mary Doe
were searched for possible evidence or
contraband, 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
simply does not address the non-protective
body search that is before us in this matter.
A non-protective search must
normally be supported 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.4 United States v.
Leon, 468 U.S. 897, 922 (1984).
The face of the search warrant here,
however, does not grant authority to
search either Jane or Mary Doe. The
block designated for a description of the
person 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 individual, named or unnamed, to be
searched. Seeking to remedy this
omission, the officers argue that the
warrant should be read in light of the
accompanying affidavit which requested
permission to search “all occupants” of the
4 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 (1978).
There is no allegation of such a
misrepresentation in this case.

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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, a warrant must be read
in a common sense, non-technical fashion.
United States v. Ventresca, 380 U.S. 102,
109 (1965). But it may not be read in a
way that violates its fundamental
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 particular description in writing
accomplishes three things. First, 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 (1927). Third, it “inform[s]
the subject of the search what can be
seized.” Bartholomew, 221 F.3d at 429.
For these reasons, although a warrant
should be interpreted practically, it must
be sufficiently definite and clear so that
the magistrate, police, and search subjects
can objectively ascertain its scope. See
Groh, 540 U.S. at __, slip op. at 5.
As the officers correctly observe, it
is perfectly appropriate 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
interpretation, the warrant must expressly
incorporate the affidavit. Bartholomew,
which the officers invoke, makes this very
point. In that case, we observed that
“‘[w]hen a warrant is accompanied by an
affidavit that is incorporated by reference,
the affidavit may be 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), cert. denied, 459 U.S.
1214 (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 , slip op. at 6.
In this case, there is no language in
the warrant that suggests that the premises
or people to be searched include 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
intended to incorporate the affidavit, it
said so explicitly. As a matter of common
sense, as well as logic, the absence of a
reference to the affidavit must therefore be
viewed as negating any incorporation of
that affidavit.5
5 At oral argument, counsel for the
officers suggested that the signature of the
Magistrate under 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

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We recognize that there are
decisions in which an affidavit 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 ambiguity or clerical error that
can be resolved with reference to the
affidavit. In these situations, it is clear
that the requesting officers and the
magistrate agreed on the place to be
searched or item to be seized, but there is
an obvious 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 “[m]inor irregularit[y].”
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 occupants” from the warrant
in this case cannot be viewed as the sort of
ambiguity or misidentification error that
can be clarified by inspecting the affidavit.
This warrant 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
occupants” of the house. That is not a
discrepancy as to form; it is a difference as
to scope. And it is a difference of
significance. 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,
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 unincorporated affidavit has
been read to modify a search warrant is
constituted by cases in which the affidavit
is particularized but the warrant is
overbroad. See, e.g., United States v.
Bianco, 998 F.2d 1112, 1116-17 (2d Cir.
1993); 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
excessive elements of the warrant as
harmless surplusage, see United States v.
Stefonek, 179 F.3d 1030, 1033-34 (7th
Cir. 1999).6
the notion 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.
6 For the same reasons, this Court
has upheld redaction as a means of

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Commonwealth v. Carlisle, 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 number and street address, but
the search warrant only mentioned the
street address. Noting that the officers had
only searched the specific apartment for
which 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, perhaps, 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 circumstances are precisely
the reverse of the preceding category of
“cure” cases. Here, the affidavit is
broader than the warrant, 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 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
i n t e r p re t a t io n , a n d a l l o w a n
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 __, slip op. at 2. 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 location to be
searched, but neither listed the items to be
seized nor “incorporate[d] by reference the
itemized list contained in the application.”
Id. The warrant did refer to the affidavit
by reciting that the Magistrate was
satisfied that the affidavit established
narrowing a warrant. United States v.
Christine, 687 F.2d 749, 759-60 (3d Cir.
1982).

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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. at 3. The
Bureau did not seize anything, nor were
any charges filed against Ramirez.7 Id.
Ramirez sued Groh and the other officers
for a Fourth Amendment violation.
The facts in Groh were strikingly
similar to those in this case:
In Groh, as here, the agents
submitted an application and affidavit that
detailed what they wanted to search and to
seize. Id. at 2.
In Groh, as here, the affidavit
sought to supply probable cause to search
for, and seize, those listed items. Id.
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. at
12.8
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. at 2-3.
In Groh, as here, the Magistrate
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. at 11.
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. at 5-6. The Court recognized
that the application and affidavit contained
an adequate description of the items to be
seized, but observed that because neither
was incorporated by reference into the
warrant description of “‘persons or
property’ to be seized,” their contents were
irrelevant. Id. at 2, 5-6. But the Court
explicitly rejected the argument that one
could infer that the Magistrate must have
intended the warrant to authorize the full
scope of what was sought in the affidavit:
[U]nless 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
7 At the conclusion of the search,
agents provided 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 __, slip op. at
3.
8 Indeed, because the officer who
wrote the affidavit also drafted the warrant
form, the Supreme Court found the
defective warrant less justifiable, saying:
“[B]ecause petitioner himself prepared the
invalid warrant, he may not argue that he
reasonably relied on the Magistrate’s
assurance that the warrant contained an
adequate description . . . .” Id. at 12.

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probable cause to search for,
and to seize, every item
mentioned in the affidavit.
. . .
The mere fact that the
Magistrate issued a warrant
d o e s n o t n e c e s s a r i l y
establish that he agreed that
the scope of the search
should be as broad as the
affiant’s request.
Id. at 8, 9. That rule disposes of
appellants’ reliance on the affidavit here.
Moreover, this case would be a
particularly bad instance 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
specifically 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 members in the warrant was an
oversight. And that also makes it all 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
subjected to microscopic dissection. But
the warrant plays a critical role under the
Fourth Amendment. At some point,
flexibility becomes breakage. The warrant
must be written with objective 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, without 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 argument, 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. A search warrant
for a premises does not constitute a license
to search everyone inside. Ybarra v.
Illinois, 444 U.S. 85 (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

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12
the personal searches because of the ease
with which contraband could be concealed
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 theFourth
Amendment, what remains is to decide
whether this violation transgressed
“clearly established” 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. Where a
challenged police action presents a legal
question that is “unusual and largely
heretofore undiscussed,” id. at 429, or
where there is “at least some significant
authority” 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
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.’” 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
established 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
“prevents the seizure of one thing under a
warrant describing another.” Marron, 275
U.S. at 196. That is both uncontroverted
and long established. As we observed
above, a warrant may be modified by an
affidavit when it is expressly incorporated
by reference. 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 v. Wilson, 631
A.2d 1356, 1358 (Pa. Super. Ct. 1993).9
But there is no express incorporation here.
9 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: “[T]he
issuing authority neither authorized nor
found probable 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.

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13
What is significant is that the
officers can point to no precedent that
allowed an unincorporated affidavit to
expand a search warrant. Although there
are decisions that allow unincorporated
affidavits to clarify or narrow overbroad
warrants, we have explained at
considerable 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 overbroad warrant because the
officer normally should not be penalized
for the magistrate’s mistake. See
Massachusetts v. Sheppard, 468 U.S. 981,
990 (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 affidavit.
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
house that was being searched, the Court
dismissed the contention that omission of
this description was not clearly
unconstitutional, or a good faith error.
Rather, the Court stated: “[A]s we
observed in the companion case to
Sheppard, ‘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 , slip op. at 13 (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 requirement 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
qualified immunity for the searches, and
remand the case for further proceedings
consistent with this opinion.

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14
Doe v. Groody
No. 02-4532
ALITO, Circuit Judge, dissenting:
I would reverse the order of the
District Court and direct that summary
judgment be entered in favor of the
defendants. First, the best reading of the
warrant is that it authorized the search of
any persons found on the premises.
Second, even if the warrant did not contain
such authorization, a reasonable police
officer could certainly have read the
warrant as doing so, and therefore the
appellants are entitled to qualified
immunity.
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
(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
occupants 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 application sought
permission to search all occupants of the
premises. Indeed, the affidavit made this
request in three separate paragraphs.
Paragraph 17, a f t e r a s k i n g for
authorization to search John Doe’s home
and car, added:
The search should also
include all occupants of the
residence as the information
developed shows that [John
Doe] has frequent visitors
t h a t p u r c h a s e
methamphetamine. These
persons may be on the
premises at the time of the
execution of the search
warrant and may attempt to
c o n c e a l c o n t r o l l e d
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 belongings to
p r e v e n t t h e r e m o v a l,
concealment, or destruction
of any evidence requested in
this warrant.
And paragraph 21 repeated the

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15
request a third time:
As a result of the
information developed, your
affiant requests that a search
w a r r a n t f o r
methamphetamine and other
controlled substances, drug
paraphernalia, drug records,
m o n i e s , p r o o f o f
r e s i d e n c e / o w n e r s h i p ,
documents, photographs,
and weapons be issued for
618 Center St. Ashland, Pa.,
the residence of [John Doe]
and all occupants therein.
App. 498a (emphasis added).
Second, the affidavit also clearly
attempted to establish 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 warrant that they
submitted to the magistrate to authorize the
search of such persons.
Fourth, the warrant expressly
incorporated the affidavit 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 premises does not
necessarily provide probable cause to
search every person who is found on the
premises, see Ybarra v. Illinois, 444 U.S.
85 (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 reason 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,
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 magistrate, the
magistrate carefully reviewed these
documents and signed the warrant without
alteration.

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16
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 application
repeatedly requested such authorization
and set out facts that the officers (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 modification 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
unambiguously limits the persons to be
searched to John Doe alone. In reaching
this conclusion, the majority relies on the
entry that the officers placed in the box
entitled “SPECIFIC DESCRIPTION OF
PREMISES AND/OR PERSONS TO BE
SEARCHED.” 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”10) was meant
to provide a full description of the persons
to be searched.11
10The affidavit is also cross-
referenced in the box entitled DATE OF
VIOLATIONS.” App. 498a.
11Officer 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
everything there.” App. 402a. See also id.
at 403a. He stated that the affidavit was
“part of the search warrant 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

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17
For present purposes, however, the
majority attaches no significance to the
entry in the box concerning 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
concludes 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 appropriate.12
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 warrant 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
p o s s i b l e n a m e o f
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 occupants”
are, include visitors, family
members.
App. at 353a.
12The majority’s mistaken approach
is further 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.

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18
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)
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 permit
consideration of the affidavit and the
circumstances surrounding the application.
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, No.
02-811(Sup. Ct. Feb. 24, 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 application for a warrant to
search a ranch for firearms, explosives,
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 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.
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 contraband or
incriminating evidence to other persons
who are on the premises (“occupants”) in
the hope that these persons will not be
searched. The majority 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.

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19
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. at 2. 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.
at 3 (emphasis added). The Court held that
the warrant was defective because it did
not particularly describe the type of
evidence sought. Id. at 5. However, the
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. at 5-6.
The Court wrote:
We do not say that the
Fourth Amendment forbids
a warrant from cross-
r e f e r e n c i n g o t h e r
documents. Indeed, most
Courts of Appeals have held
that a court may construe a
warrant with reference to a
supporting application or
affidavit if the warrant uses
a p p r o p r ia te w o r d s o f
incorporation, and if the
s u p p o r t in g d o c u m e n t
accompanies the warrant. . .
. . But in this case the
warrant did not incorporate
o t h e r d o c u m e n t s b y
reference, nor did either the
affidavit or the application
(which had been place under
s e a l ) a c c o m p a n y t h e
warrant. Hence, we need
not further explore the
matter of incorporation.
Id. at 6.
My disagreement with the majority
concerns the question 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 appropriateness
of “words of incorporation” is to be judged
by the “commonsense and realistic”
standard that is generally 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(1987). Qualified immunity “provides
ample protection to all but the plainly
incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475
U.S. 335, 341 (1986). See also, e.g.,

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20
Saucier v. Katz, 533 U.S. 194, 202 (2001).
The appellants in this case did not exhibit
incompetence 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 the affidavit on the
issue of probable cause, (4) the language
of the warrant was drafted to confer
authorization to search all occupants, 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.13
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 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.
13The plaintiffs argue that there was
no probable cause to search them, but
whether or not there was probable cause,
when a warrant is issued, officers who
execute the warrant are entitled to
qualified immunity unless "the warrant
application is so lacking in indicia of
probable cause as to render official 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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