Owens v. LEON LOTT, Richland County Sheriff

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 DESTINY OWENS, a minor under the
age of fourteen years, by and
through her mother and Guardian ad
Litem, Latanya Owens; LESHIA
DONALDSON; WILLIAM CLAYTON;
GREGORY OWENS, a minor under the
age of fourteen years, by and
through his mother and Guardian ad
Litem, Latanya Owens; LATANYA No. 03-1194 OWENS,
Plaintiffs-Appellants,
v.
LEON LOTT, Richland County
Sheriff; J. MALDONADO; JANE DOE;
RICHARD DOE, Richland County
Deputy Sheriffs,
Defendants-Appellees. 

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 DESTINY OWENS, a minor under the
age of fourteen years, by and
through her mother and Guardian ad
Litem, Latanya Owens; LESHIA
DONALDSON; WILLIAM CLAYTON;
GREGORY OWENS, a minor under the
age of fourteen years, by and
through his mother and Guardian ad
Litem, Latanya Owens; LATANYA No. 03-1196 OWENS,
Plaintiffs-Appellees,
v.
LEON LOTT, Richland County
Sheriff; J. MALDONADO; JANE DOE;
RICHARD DOE, Richland County
Deputy Sheriffs,
Defendants-Appellants. 
Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., Chief District Judge.
(CA-01-4574-3; CA-01-4575-3; CA-01-4577-3; CA-01-4578-3;
CA-01-4579-3; CA-01-4580-3)
Argued: December 3, 2003
Decided: June 15, 2004
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Traxler wrote the opinion, in
which Judge Michael and Judge Shedd joined.
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COUNSEL
ARGUED: Francis Thomas Draine, Columbia, South Carolina, for
Appellants/Cross-Appellees Destiny Owens, et al. Andrew Frederick
Lindemann, DAVIDSON, MORRISON & LINDEMANN, P.A.,
Columbia, South Carolina, for Appellees/Cross-Appellants Leon Lott,
et al. ON BRIEF: William H. Davidson, II, Robert D. Garfield,
DAVIDSON, MORRISON & LINDEMANN, P.A., Columbia, South
Carolina, for Appellees/Cross-Appellants Leon Lott, et al.
OPINION
TRAXLER, Circuit Judge:
Tiffeny Owens, Latanya Owens, Leshia Donaldson, and William
Clayton (collectively "plaintiffs") brought this civil rights action
under section 1983 against Deputy Sheriff Gerardo Maldonado, the
Sheriff of Richland County, and two unnamed Richland County depu-
ties, identified as "Jane Doe" and "Richard Roe" (collectively "defen-
dants"). Plaintiffs assert defendants violated the Fourth Amendment
when defendants conducted a strip-search of the women and a pat-
down of Clayton pursuant to a search warrant for drugs located at a
private residence and "all persons at the premise[s]." J.A. 247. The
district court agreed with plaintiffs that defendants’ search was unrea-
sonable under the Fourth Amendment; however, the court granted
qualified immunity to defendants and awarded them summary judg-
ment on that basis.
Plaintiffs appeal the district court’s grant of qualified immunity,
and defendants cross-appeal the district court’s determination that
their conduct, as alleged by plaintiffs, violated the Fourth Amend-
ment. We reject both challenges and affirm the district court.
I.
On June 8, 2000, Deputy Gerardo Maldonado, a narcotics officer
employed by the Richland County Sheriff’s Department in Columbia,
South Carolina, received a call from a confidential informant who
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claimed to have observed the sale of a large amount of cocaine at a
private residence where he had stayed that night as a guest. According
to the informant, from whom Deputy Maldonado had received accu-
rate information on previous occasions, "a black male in his late teens
or early twenties" had been selling the illegal drugs "in an expeditious
manner" during the informant’s visit. J.A. 139-40. Deputy Maldona-
do’s informant suggested that law enforcement move swiftly in order
to apprehend the drug dealer. Shortly after the phone call, the infor-
mant led Deputy Maldonado and Deputy Fred Brantley to a small
house in which he claimed to have seen the drug transactions.
With the help of another officer, Deputy Jackie Kight, Deputy Mal-
donado drafted a proposed search warrant and executed a supporting
affidavit, which he presented to a state magistrate judge around 4:00
p.m. on June 8. The affidavit stated the following:
Within the past 72 hours a confidential and reliable infor-
mant has observed cocaine distributed from the location to
be searched. The informant is reliable in that [he] has pro-
vided information of on at least four occasions that has [led]
to at least four arrest[s] and the seizure of illegal drugs.
Through the affiant’s and other . . . Narcotic officers[’]
experience in drug enforcement, it is known that subjects
present at the scene of illegal drug [transactions] . . . com-
monly have drugs in their possession.
J.A. 247. Based on the foregoing statement, Deputy Maldonado
sought a search warrant for "[c]ocaine, paraphernalia and paperwork
associated with the sale, storage and use of cocaine" found on the
premises identified by the informant, "to include all persons at the
premise[s]." Id. (emphasis added). The magistrate judge signed the
warrant, authorizing the officers to search "all persons at the pre-
mise[s]," id., and deputies Maldonado and Kight, and several addi-
tional officers, immediately served and executed the warrant. Less
than 24 hours elapsed between the time at which the confidential
informant claimed to have witnessed the criminal activity and the exe-
cution of the warrant.
When defendants arrived, sisters Tiffeny and Latanya Owens were
inside of the house with Latanya’s two minor children. Officers ini-
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tially handcuffed Tiffeny and Latanya and then Deputy Kight, a
female officer, took them to a bathroom and performed a thorough
search for drugs and weapons. Although Tiffeny and Latanya sug-
gested in their deposition testimony that they had been required to
remove undergarments to facilitate the search — which conflicts with
Deputy Kight’s assertion that she never removes clothing during a
search — there is no claim before us that the manner in which the
search was conducted was itself unconstitutional.
Soon after Deputy Kight had conducted the search of Tiffeny and
Latanya, their mother, Leshia Donaldson, arrived with her fiancé Wil-
liam Clayton. Donaldson, who owned the property, was escorted by
Kight to the bathroom and searched for drugs and weapons in the
same manner as were her daughters. Like her daughters, Donaldson
offered a version of what happened during the search that was not
completely consistent with that of Deputy Kight, but she also does not
contend that the manner of the search itself was unconstitutional.
Officers frisked Clayton over his outer garments for drugs and weap-
ons. No narcotics were found in the search of the house or its occu-
pants.
All four adult subjects of the search, as well as the two minors,
filed this action in state court against the Sheriff of Richland County,
Deputy Maldonado and two officers who participated in the execution
of the search warrant, identified as Jane Doe and Richard Roe, alleg-
ing that the search of the individuals violated the Fourth Amendment.
It is undisputed that the defendant identified as "Jane Doe" is Deputy
Kight. The remainder of plaintiffs’ claims — eight of them — were
based on state tort law. Defendants removed the action to district
court, asserted a qualified immunity defense, and sought summary
judgment on that basis.
The district court followed the two-step qualified immunity analyti-
cal sequence prescribed by the Supreme Court. See Saucier v. Katz,
533 U.S. 194, 200 (2001). The court first held that the search of plain-
tiffs violated the Fourth Amendment’s guarantee against "unreason-
able searches and seizures." U.S. Const. amend. IV. The district court
defined the issue as "whether police officers may validly obtain and
execute a search warrant for ‘all persons’ present at a locale, absent
showing of particularized probable cause to search each individual."
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J.A. 329. Rejecting the view that "all persons" warrants similar to that
procured by Deputy Maldonado are per se unconstitutional, the dis-
trict court adopted the widely-held position, as suggested in State v.
De Simone, 288 A.2d 849 (N.J. 1972), that such warrants can pass
constitutional muster if there was probable cause to believe "all per-
sons" found at the location being searched "would be involved in the
criminal operation" occurring there. Id. at 854; see id. at 850 (affirm-
ing the constitutionality of the search of a passenger in an automobile
used to conduct an illegal gambling operation pursuant to a search
warrant for the vehicle "‘and all persons found therein.’"). The district
court determined there was no such probable cause in this case, find-
ing that "the only rationale . . . to support a claim of particularized
probable cause" to search all individuals found on the property was
"the individual’s proximity to the alleged [criminal] activity." J.A.
339. Citing Ybarra v. Illinois, 444 U.S. 85, 91 (1979), the court noted
that, without more, "the connection between proximity to crime and
involvement in crime [is] too tenuous to support . . . [an] ‘all persons’
warrant." J.A. 339-40.
Turning to the question of qualified immunity, however, the district
court held that, at the time of the unconstitutional search, the right
violated by defendants was not clearly established. The district court
concluded that, "[b]ased on the lack of Supreme Court and Fourth
Circuit precedent dealing directly with ‘all persons’ warrants," and
the lack of consensus among decisions at the time that did touch on
the issue, the law was insufficiently clear to divest defendants of their
qualified immunity. J.A. 342. Accordingly, the court granted defen-
dants qualified immunity, dismissed the section 1983 claim, and
remanded the remaining claims, all of which are grounded in state
law, to state court.
Defendants appeal the district court’s conclusion that plaintiffs’
section 1983 action states a constitutional violation; defendants agree
with the district court, of course, that the law was not clearly estab-
lished for purposes of qualified immunity. Conversely, plaintiffs
agree with the district court’s determination that the search was con-
stitutionally invalid, but challenge the court’s conclusion that the law
was not "clearly established" at the time. We cannot completely
accept either position because, in our opinion, the district court
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reached the correct result on both steps. Thus, we affirm the judgment
of the district court.
II.
A court’s evaluation of a qualified immunity defense to a section
1983 claim is a two-part process. Our first task is to determine
whether the plaintiff has alleged the deprivation of a constitutional
right. See Saucier, 533 U.S. at 200-01. If so, only then do we under-
take the next task of determining "whether the right was clearly estab-
lished at the time such that it would be clear to an objectively
reasonable officer that his conduct violated that right." Brown v. Gil-
more, 278 F.3d 362, 367 (4th Cir. 2002). Thus, liability will not be
imposed "when an officer violates [a constitutional right]" unless "a
reasonable officer would know that the specific conduct at issue was
impermissible." Rogers v. Pendleton, 249 F.3d 279, 285 (4th Cir.
2001); see Anderson v. Creighton, 483 U.S. 635, 638-39 (1987).
We turn first to the question of whether, "[t]aken in the light most
favorable to the party asserting the injury, . . . the facts alleged show
[that] the officer’s conduct violated a constitutional right." Saucier,
533 U.S. at 201. Specifically, we must decide whether the facts,
viewed in a light most favorable to plaintiffs, establish that defen-
dants’ search of plaintiffs pursuant to the "all persons" language in the
warrant was unreasonable under the Fourth Amendment.*
The Fourth Amendment ensures that citizens are "secure in their
persons . . . against unreasonable searches and seizures." U.S. Const.
amend. IV. "[R]easonableness requires probable cause and a warrant
unless one of the exceptions to the warrant requirement applies," Doe
v. Broderick, 225 F.3d 440, 451 (4th Cir. 2000); see Katz v. United
*This opinion employs the term "all persons warrant" to mean (gener-
ally) a search warrant authorizing the search of a particular place for evi-
dence of a particular crime, as well as "all persons" found on the
premises at the time of the search. See 2 Wayne R. LaFave, Search and
Seizure § 4.5(e), at 545 (3d ed. 1996) ("One form of warrant which has
been challenged with some frequency directs a search for particularly
described items within a . . . home, apartment, store, or vehicle, including
‘any and all persons found therein.’").
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States, 389 U.S. 347, 357 (1967), a principle drawn from the Fourth
Amendment’s prohibition against the issuance of warrants without
"probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized." U.S. Const. amend. IV. The magistrate issuing the search
warrant must "make a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit . . . there is a fair
probability that contraband or evidence of a crime will be found in a
particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). "The
probable-cause standard is incapable of precise definition or quantifi-
cation into percentages because it deals with probabilities and
depends on the totality of the circumstances." Maryland v. Pringle,
124 S. Ct. 795, 800 (2003). For that reason, in reviewing the suffi-
ciency of a supporting affidavit, we avoid applying "‘hypertechnical’
scrutiny . . . lest police officers be encouraged to forgo the warrant
application process altogether." United States v. Robinson, 275 F.3d
371, 380 (4th Cir. 2001) (quoting Gates, 462 U.S. at 236).
In addition to the requirement that a search warrant be supported
by probable cause, the warrant must particularly describe the place
where the search will occur and the "persons or things to be seized."
Thus, the particularity requirement of the Fourth Amendment is
directed at the warrant as opposed to the supporting affidavit. See
Groh v. Ramirez, 124 S. Ct. 1284, 1289 (2004). Requiring particular-
ity in the warrant itself serves a couple of important functions. Of
course, there is the well-examined purpose of preventing general
searches. See Maryland v. Garrison, 480 U.S. 79, 84 (1987) ("By lim-
iting the authorization to search to the specific areas and things for
which there is probable cause to search, the requirement ensures that
the search . . . will not take on the character of the wide-ranging
exploratory searches the Framers intended to prohibit."). A search
warrant that describes its object with particularity discourages the
state from embarking on a "‘general exploratory rummaging’"
through a citizen’s private residence. United States v. Oloyede, 982
F.2d 133, 138 (4th Cir. 1993) (per curiam) (quoting Coolidge v. New
Hampshire, 403 U.S. 443, 467 (1971)). The particularity requirement
also affords written assurance to "the individual whose property is
searched or seized of the lawful authority of the executing officer, his
need to search, and the limits of his power to search." Groh, 124
S. Ct. at 1292 (internal quotation marks omitted).
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Whether, and under what circumstances, an "all persons" warrant
is valid under the Fourth Amendment presents a novel question in this
circuit. It also remains unanswered in the Supreme Court, which
acknowledged this issue in Ybarra, 444 U.S. at 92 n.4, but left its res-
olution for another day. Only a smattering of federal courts have
addressed the difficulties presented by the inclusion of "all persons"
language in a premises search warrant, see Marks v. Clarke, 102 F.3d
1012, 1029 (9th Cir. 1997); Baker v. Monroe Township, 50 F.3d
1186, 1188-89 n.1 (3d Cir. 1995); id. at 1199 (Alito, J., dissenting);
United States v. Guadarrama, 128 F. Supp. 2d 1202, 1206-14 (E.D.
Wis. 2001) (collecting cases); United States v. Graham, 563 F. Supp.
149, 151 (W.D.N.Y. 1983), and a few others have mentioned it in
passing, see Burns v. Loranger, 907 F.2d 233, 234 n.2 (1st Cir. 1990);
Guzman v. Estelle, 493 F.2d 532, 533-34 & n.7 (5th Cir. 1974);
United States v. Johnson, 475 F.2d 977, 979 n.5 (D.C. Cir. 1973). The
most extensive treatment of the question, by far, has been given in the
state courts. See Guadarrama, 128 F. Supp. 2d at 1206-09 (compiling
a comprehensive list of state court decisions from more than thirty-
five jurisdictions).
The minority view emerging from these decisions is that a premises
search warrant that also authorizes the search of "all persons" found
on the premises being searched contravenes the particularity require-
ment of the Fourth Amendment and is invalid on its face. Common
to the minority position is the view that there is an "uncomfortable
similarity between [the] ‘all persons’ warrant and [the] general war-
rant." Id. at 1207. In sum, a handful of decisions suggest that an "all
persons" warrant is invalid per se under the Fourth Amendment, con-
cluding it is either functionally the same as a general warrant, or it is
not sufficiently particular to satisfy the requirements of the Fourth
Amendment’s Warrant Clause. See, e.g., State v. Cochran, 217 S.E.2d
181, 183-84 (Ga. Ct. App. 1975)
By contrast, a majority of the courts have rejected the idea that an
"all persons" warrant could never under any circumstances be consti-
tutional. The New Jersey Supreme Court’s opinion in De Simone
emerged as the leading decision for the view that an "all persons"
warrant is not unconstitutional per se, but rather is valid as long as
there is probable cause to believe that everyone found on the premises
being searched is involved in the illegal activity and that evidence of
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the crime would be found on their person. See 288 A.2d at 854. Under
such a fact-dependent approach, the constitutionality of a search
based upon a person’s physical proximity to the illegal activity turns
wholly on the context of the search. Thus,
[a] showing that [illegal] lottery slips are sold in a depart-
ment store or an industrial plant obviously would not justify
a warrant to search every person on the premises, for there
would be no probable cause to believe that everyone there
was participating in the illegal operation. On the other hand,
a showing that a dice game is operated in a manhole or in
a barn should suffice, for the reason that the place is so lim-
ited and the illegal operation so overt that it is likely that
everyone present is a party to the offense. Such a setting fur-
nishes not only probable cause but also a designation of the
persons to be searched which functionally is as precise as a
dimensional portrait of them.
Id. at 850. De Simone involved an illegal gambling business that sev-
eral individuals operated from their automobiles, using the vehicles as
a "drop" or "pickup" for the exchange of money and gambling slips.
Officers who had observed the operation obtained search warrants for
the search of the vehicles and "‘all persons found therein.’" Id. The
court observed that it was "reasonable to conclude . . . that a passen-
ger in the car was probably a party [to the wrongdoing] . . . [because]
a driver would not likely bring . . . an uninvolved person who would
witness" drops and pickups to and from an empty car. Id. at 852. The
close quarters in the interior of a car makes a passenger’s presence
more indicative of complicity in the illegal activities "than would be
presence in a building in which some illegality may be occurring." Id.
at 851.
Although Ybarra v. Illinois did not address a so-called "all persons"
warrant, it sheds additional light on our analysis. Officers in Ybarra
obtained a warrant to search the premises at a public tavern, as well
as the bartender, for narcotics. A state statute allowed officers who
were executing the warrant "to search any person in the place . . . (a)
[t]o protect himself . . . or (b) to prevent the disposal or concealment
of . . . things particularly described in the warrant." 444 U.S. at 87 n.1
(emphasis added). There was no specific information giving officers
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probable cause to believe that anyone in the tavern, other than the bar-
tender, was involved in the distribution of drugs. Indeed, the applica-
tion for the warrant did not suggest that the tavern was regularly
visited by drug-purchasing patrons — the sole connection between
Ybarra and the drug transactions at the tavern was his presence "in a
public tavern at a time when the police had reason to believe that the
bartender would have heroin for sale." Id. at 91. And, there was no
reason that Ybarra would have appeared armed or dangerous. Never-
theless, officers patted down Ybarra and recovered heroin from his
pocket.
In holding the search unconstitutional under the Fourth Amend-
ment, the Court explained that there was no "probable cause particu-
larized with respect to [Ybarra]" and that his "mere propinquity to
others independently suspected of criminal activity d[id] not, without
more," supply the missing probable cause. Id. The Court noted that,
because of the particularity requirement of the Warrant Clause, a gen-
eral warrant is impermissible, and "[i]t follows that a warrant to
search a place cannot normally be construed to authorize a search of
each individual in that place." Id. at 92 n.4. Finally, the Court implied
that the warrant issued for the tavern did not supply a basis for search-
ing individuals in the bar, although the Court recognized the possibil-
ity that a warrant could, under the right circumstances, provide that
support: "[W]e need not consider situations where the warrant itself
authorizes the search of unnamed persons in a place and is supported
by probable cause to believe that persons who will be in the place at
the time of the search will be in possession of illegal drugs." Id.
We agree that the majority view, as articulated in De Simone, cor-
rectly holds that an "all persons" warrant can pass constitutional mus-
ter if the affidavit and information provided to the magistrate supply
enough detailed information to establish probable cause to believe
that all persons on the premises at the time of the search are involved
in the criminal activity. In our view, the inclusion of "all persons" lan-
guage in a warrant presents probable cause issues rather than particu-
larity problems. "A search warrant authorization to search all persons
found within a specifically described place is not lacking particularity
in the sense that the executing officer will be unable readily to deter-
mine to whom the warrant applies." 2 Wayne R. LaFave, Search and
Seizure § 4.5(e), at 546-57 (3d ed. 1996); see De Simone, 288 A.2d
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at 850-51 ("[W]ith regard to the Fourth Amendment demand for spec-
ificity as to the subject to be searched, there is none of the vice of a
general warrant if the individual is . . . identified by physical nexus
to the ongoing criminal event itself."). Thus, as long as "there is good
reason to suspect or believe that anyone present at the anticipated
scene will probably be a participant" in the criminal activity occurring
there, "presence becomes the descriptive fact satisfying the aim of the
Fourth Amendment." De Simone, 288 A.2d at 851.
In this case, we agree with the district court that Deputy Maldona-
do’s affidavit did not supply sufficient information to establish proba-
ble cause that anyone who happened to be on the premises during the
execution of the search warrant was involved in the sale of illegal
drugs. The only justification presented to the magistrate for the search
of "all persons at the premise[s]" was Deputy Maldonado’s "experi-
ence in drug enforcement . . . that subjects present at the scene of [an]
illegal drug distribution . . . commonly have drugs in their posses-
sion." J.A. 247. This generalization was and is undoubtedly true, but
it did not provide the kind of particularized information that would
have permitted the magistrate to reasonably conclude that there was
a fair probability that any person seen by officers on the premises was
there to partake in one side of a drug transaction or another. At bot-
tom, the search warrant authorized the search of individuals in this
case based on nothing more than their proximity to a place where
criminal activity may or may not have occurred. And, as the Supreme
Court has explained, "a person’s mere propinquity" to suspected crim-
inal activity "does not, without more, give rise to probable cause to
search that person." Ybarra, 444 U.S. at 91.
Defendants contend that the district court’s conclusion was wrong
in two respects: (1) the court erroneously believed that the "particular-
ized probable cause" necessary to search an individual under an "all
persons" warrant required Deputy Maldonado and his fellow officers
to identify specific individuals to be searched; and (2) contrary to the
district court’s determination, there were sufficient facts to support
probable cause to search anyone found on the premises for drugs —
in other words, there was presented to the magistrate more than plain-
tiffs’ mere propinquity to the alleged criminal activity. We cannot
agree.
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Defendants’ contention that the district court found the search
unconstitutional because law enforcement failed to identify any spe-
cific individual to be searched misconstrues the district court’s deci-
sion. Defendants focus, to the exclusion of several pages of
discussion, on the district court’s statement that "the warrant failed to
describe any particular individual." J.A. 339. Even a casual reading
of the district court’s opinion, however, makes clear that the district
court properly understood that the relevant inquiry was whether there
was "probable cause to believe ‘all persons’ present at [the subject
residence] would be involved in criminal activity," and that the search
warrant failed because it did not "articulate particularized probable
cause to search any specific individual." Id. Read in the context of the
district court’s entire opinion, the latter statement — and others like
it — merely reflect the court’s conclusion that there was no probable
cause to search any individual who happened to be on the premises
when the warrant was executed. The district court correctly concluded
that there was simply no probable cause for the searches at issue —
there was no probable cause to search "all persons at the premises,"
which includes the plaintiffs, and obviously there was no description
or other specific information contained in the affidavit or warrant that
would have permitted the search of plaintiffs separate and apart from
the "all persons" language contained in the warrant.
Next, defendants argue that there were sufficient facts to establish
probable cause to search "all persons" on the premises. Defendants
offer several factors in support of this argument: the warrant was exe-
cuted on the same day that the informant claimed to have witnessed
the drug transactions; a large amount of cocaine was alleged to have
been at the house; the informant reported that drugs were being sold
rapidly; the premises to be searched was a small, single-family house;
and each of the individuals searched had a "significant connection" to
the premises, living there part-time or full-time. According to defen-
dants, these allegations permit the reasonable assumption that the
drug transactions were not yet complete and that any person who was
at the house was involved. Further, defendants contend the fact that
the house was small bolsters the conclusion that any person on the
premises at the time of the search knew about the activity and was
involved.
None of these facts appear in Deputy Maldonado’s supporting affi-
davit. Our review of whether the search warrant was supported by
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probable cause — in other words, a review of the facts upon which
the issuing magistrate relied — may not go beyond the information
actually presented to the magistrate during the warrant application
process. See Whiteley v. Warden, 401 U.S. 560, 565 n.8 (1971) ("[A]n
otherwise insufficient affidavit cannot be rehabilitated by testimony
concerning information possessed by the affiant when he sought the
warrant but not disclosed to the issuing magistrate. . . . A contrary
rule would . . . render the warrant requirements of the Fourth Amend-
ment meaningless."). In this circuit, the failure to include information
within the four corners of the affidavit is not necessarily fatal, pro-
vided the information is actually presented to the magistrate — a
magistrate "may consider sworn, unrecorded oral testimony in making
probable cause determinations during warrant proceedings." United
States v. Clyburn, 24 F.3d 613, 617 (4th Cir. 1994). All the record
contains in this regard, however, is an affidavit filed in the district
court by Deputy Maldonado recounting the information supplied by
the informant, including the fact that the informant had witnessed the
transactions in the early morning hours of that same day and that there
was a large amount of narcotics involved. The size of the residence,
which defendants contend is a critical factor in favor of probable
cause, is not mentioned in Deputy Maldonado’s federal affidavit, was
apparently never given to the magistrate and was never a factor in the
issuance of the search warrant. According to Deputy Maldonado, he
drafted the supporting affidavit which he took to the magistrate;
"[a]fter hearing the aforementioned background information, Judge
Davis determined that probable cause existed . . . [and] signed the
search warrant and supporting affidavit." J.A. 141. There is simply no
indication in the record that any of the specific facts upon which
defendants now rely were offered to the magistrate through sworn
oral statements. Accordingly, defendants’ argument relies upon facts
extrinsic to the application process which will not aid them in the con-
text of probable cause.
Furthermore, these facts, even if presented to the magistrate
through sworn oral testimony, fail to provide the kind of information
that would establish probable cause to believe every person found on
the premises was likely involved in the selling and buying of drugs.
There was no indication, for example, that this particular residence
had a history of drug-related activities or that known drug dealers or
users were frequenting the place. See Commonwealth v. Graciani, 554
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A.2d 560, 562 (Pa. Super. Ct. 1989) (search under "all persons" war-
rant valid relating to drug transactions occurring in residence where
previous drug-related arrests had been made); Morton v. Common-
wealth, 434 S.E.2d 890, 892-93 (Va. Ct. App. 1993) (upholding "all
persons" warrant where officer’s affidavit indicated that apartment
manager had received prior complaints about crack distribution from
the subject apartment and that recent surveillance had discovered the
presence of known drug dealers in the apartment); Commonwealth v.
Smith, 348 N.E.2d 101, 106 (Mass. 1976) ("all persons" warrant valid
in light of recent comings and goings of known heroin traffickers).
There was no ongoing drug activity evidenced by multiple transac-
tions over an extended period of time; rather, the confidential infor-
mant reported having seen cocaine distributed from the residence on
a single occasion. See People v. Johnson, 805 P.2d 1156, 1161 (Colo.
Ct. App. 1990) (permissible to search every person found on the
premises in light of "transactions [that] are continuous, ongoing, and
obvious to even the most unsophisticated observer that criminal activ-
ity is taking place") (internal quotation marks omitted). Nor was there
any "regular traffic" of individuals to and from the residence that
would suggest ongoing drug activity. See State v. Loins, 993 P.2d
1231, 1235 (Kan. Ct. App. 1999) (collecting cases); Smith, 348
N.E.2d at 106. Furthermore, there was nothing about the condition of
the house itself, its location or its surrounding neighborhood to sug-
gest it served as a place likely to attract only people involved in the
drug trade. See People v. Nieves, 330 N.E.2d 26, 34 (N.Y. 1975)
(validity of "all persons" warrant determined in light of affidavit’s
description of "the character of the premises . . . its location, size, the
particular area to be searched, means of access, neighborhood").
Finally, although the search warrant pertained to non-public property
— where ordinarily the presence of an innocent passerby is less likely
than in a public facility like a train station — the residential nature
of the premises and the fact that the search occurred during daytime
or early evening hours presented the obvious risk that unsuspecting
friends, neighbors, or laborers would be present during the search. See
State v. Jackson, 616 N.W.2d 412, 419 (S.D. 2000) ("Another factor
leading us to uphold this warrant is that it was executed at night, mak-
ing it improbable that innocent people would show up by happen-
stance.").
In sum, Deputy Maldonado was not given sufficient information by
his confidential informant and, in turn, did not supply the magistrate
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information to establish probable cause that "all persons" at the resi-
dence were likely involved in illegal drug transactions.
III.
The second phase of the qualified immunity analysis requires us to
decide whether the conduct alleged by the plaintiff "violate[s] clearly
established statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). A preliminary task is to define the constitutional right at issue
"at a high level of particularity." Edwards v. City of Goldsboro, 178
F.3d 231, 251 (4th Cir. 1999). The right alleged to have been violated
is "clearly established" if "[t]he contours of the right [are] sufficiently
clear that a reasonable official would understand that what he is doing
violates that right." Anderson, 483 U.S. at 640. This determination "is
an objective one, dependent not on the subjective beliefs of the partic-
ular officer at the scene, but instead on what a hypothetical, reason-
able officer would have thought in those circumstances." Wilson v.
Kittoe, 337 F.3d 392, 402 (4th Cir. 2003). "Clearly established" does
not mean that "the very action in question has previously been held
unlawful," but it does require that, "in the light of pre-existing law the
unlawfulness [of the official’s conduct] must be apparent." Wilson v.
Layne, 526 U.S. 603, 615 (1999). In other words, "the exact conduct
at issue need not have been held unlawful for the law governing an
officer’s actions to be clearly established." Amaechi v. West, 237 F.3d
356, 362 (4th Cir. 2001). And, the absence of controlling authority
holding identical conduct unlawful does not guarantee qualified
immunity. See Kittoe, 337 F.3d at 403. We must consider "not only
already specifically adjudicated rights, but those manifestly included
within more general applications of the core constitutional principle
invoked." Amaechi, 237 F.3d at 362-63 (internal quotation marks
omitted).
Whether a right has been specifically adjudicated or is manifestly
apparent from broader applications of the constitutional premise in
question, we look ordinarily to "the decisions of the Supreme Court,
this court of appeals, and the highest court of the state in which the
case arose." Edwards, 178 F.3d at 251 (internal alterations and quota-
tion marks omitted). When there are no such decisions from courts of
controlling authority, we may look to "a consensus of cases of persua-
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sive authority" from other jurisdictions, if such exists. Wilson, 526
U.S. at 617; see Amaechi, 237 F.3d at 363.
There is no controlling authority that informs our analysis in this
case. As we have already noted, the Supreme Court has not addressed
the circumstances, if any, under which an "all persons" provision in
a search warrant is constitutional, see Ybarra, 444 U.S. at 92 n.4, nor
has this court done so. The vast majority of the decisions from other
jurisdictions considering the validity of "all persons" warrants —
mostly state decisions — conclude that a search warrant authorizing
the search of "all persons" found on the premises does not violate the
Fourth Amendment per se. Beyond that broad conclusion, however,
courts impose different requirements for what is necessary to sustain
the validity of such a warrant. The approach used in De Simone, for
example, is to determine whether "there is good reason to suspect or
believe that anyone present at the anticipated scene will probably be
a participant" in the criminal conduct occuring there. 288 A.2d at 851.
Other jurisdictions, imposing more stringent requirements, "permit
such warrants if the facts known to the issuing judge justify a belief
that the premises are confined to ongoing illegal activity and that
every person within the orbit of the search possesses the items sought
by the warrant." State v. Horn, 808 P.2d 438, 439 (Kan. Ct. App.
1991) (emphasis added); see Nieves, 330 N.E.2d at 34. Still another
approach is to find the warrant valid if there is a reasonable probabil-
ity that persons involved in the criminal activity will be present dur-
ing the execution of the warrant. See State v. Hayes, 540 N.W.2d 1,
4 (Wis. Ct. App. 1995). Moreover, these decisions provide no clear
view, let alone a consensus, regarding what factors are most signifi-
cant in deciding whether sufficient probable cause exists to support
the search of "all persons" found in a private residence being searched
for drugs. Compare Hayes, 540 N.W.2d at 3 (approving of search of
"all persons" on the premises where supporting affidavit stated only
that, in the officer’s experience, it was common to find persons
involved in the crime on the premises during the search and that such
individuals commonly carried contraband on their persons) with State
v. Thomas, 540 N.W.2d 658, 664 (Iowa 1995) (requiring the warrant
application to include (1) "the character of the premises, including its
location, size, and public or private character;" (2) "the nature of the
illegal conduct;" (3) "the number and behavior of persons expected to
be present . . . ;" (4) whether innocent individuals were seen on the
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premises; and (5) the time and place the alleged activity is to occur).
We conclude that at the time of the search, the law was not suffi-
ciently clear to strip defendants of qualified immunity.
IV.
For the foregoing reasons, we affirm the district court’s determina-
tion that the search of plaintiffs violated their Fourth Amendment
rights, but that these rights were not clearly established such that a
reasonable officer would have understood that the search encroached
upon those rights.
AFFIRMED
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