                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-15-1997

Sherwood v. Mulvihill
Precedential or Non-Precedential:

Docket 96-5236




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"Sherwood v. Mulvihill" (1997). 1997 Decisions. Paper 109.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/109


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Filed May 15, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-5236

GEORGE SHERWOOD,

Appellant

v.

JAMES F. MULVIHILL, ASS'T PROSECUTOR; EDWARD
BORDEN, PROSECUTOR; RONALD BAKLEY, DETECTIVE;
JAMES BARNUM, CHIEF; JOHN DOE

JAMES F. MULVIHILL,

Defendant/Third-Party Plaintiff

v.

CAMDEN COUNTY PROSECUTOR,

Third-Party Defendant

ON APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 92-cv-03856)

Submitted Under Third Circuit LAR 34.1(a)
January 15, 1997

Before: SLOVITER, Chief Judge, SCIRICA and SEITZ,
Circuit Judges.

Filed: May 15, 1997
George Sherwood (Pro Se)
#234421
Southern State Correctional Facility
P.O. Box 150
Delmont, New Jersey 08314

Angela J. Washington, Esq.
Office of Camden County Counsel
520 Market Street
14th Floor, Courthouse
Camden, New Jersey 08101

Attorney for Appellee,
Edward Borden

Anthony J. Fusco, Jr., Esq.
150 Passaic Avenue
P.O. Box 838
Passaic, New Jersey 07055

Attorney for Appellee,
Ronald Bakley

Marc I. Bressman, Esq.
Budd, Larner, Gross, Rosenbaum,
Greenberg & Sade
200 Lake Drive East
Woodland Falls Corporate Park
Suite 100
Cherry Hill, New Jersey 08002

Attorney for Appellee,
James Barnum

OPINION OF THE COURT

SEITZ, Circuit Judge.

In this section 1983 action, we confront, once again, the
fallout from the drug scourge afflicting our society.

George Sherwood ("Plaintiff ") appeals from an order of
the district court granting the motions of Defendants,

                    2
Ronald Bakley and James Barnum ("Defendants"), for
summary judgment. Plaintiff sought relief against
Defendants for allegedly violating his fourth and fourteenth
amendment rights by falsifying an affidavit used to obtain
a warrant to search Plaintiff's residence. The district court
exercised jurisdiction under 28 U.S.C. §§ 1331 and 1343.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our
standard of review is plenary.

I.

The following facts are undisputed. A confidential
informant ("informant") whose past tips led to several drug-
related arrests, informed Defendant Barnum, chief of police
in Franklin Township, New Jersey, that Plaintiff was selling
methamphetamine from his residence. The informant told
Defendant Barnum that he could arrange a narcotics
purchase from Plaintiff. On April 4, 1990, Defendant
Barnum, acting undercover, supervised a controlled drug
purchase from Sherwood's residence.

Defendant Bakley later drafted, and both Defendants
signed, an affidavit used to seek a warrant to search
Plaintiff's residence. The affidavit chronicled the controlled
transaction by stating:

(g) That after searching said informant, same was
driven to the Sherwood residence by Chief Barnum
who gave this informant a quantity of money and
requested same go to Sherwood and purchase a
quantity of purported methamphetamine.

(h) That while being watched by Chief Barnum, the
individual did go to the rear door of the residence and
after knocking on same, George Sherwood came to the
door and came outside. Then, both individuals went
back into the house.

(i) That a few minutes later, said person exited the
house and returned directly to Chief Barnum's vehicle.
At this time, said informant handed Chief Barnum a
plastic bag containing a chunk of a white substance
which same said was purchased from George
Sherwood.

                    3
(Appellant's Br. at App. E-1.3.) Defendant Bakley later
identified the substance as methamphetamine.

Plaintiff contends that each of the quoted paragraphs is
false because each omits and/or affirmatively
misrepresents facts surrounding the controlled transaction.
First, paragraph (g) of the affidavit omits that a third
person, Michael Vasgar, who was unaware that Defendant
Barnum was a police officer and that he was aiding in a
controlled narcotics purchase, accompanied Defendant
Barnum and the informant to Plaintiff's residence on April
4, 1990.1 In this same paragraph, the affidavit states that
Defendant Barnum handed money to the informant and
instructed him to purchase methamphetamine from
Plaintiff. The parties do not dispute that Vasgar
accompanied Defendant Barnum and the informant to
Plaintiff's residence and that Defendant Barnum actually
gave Vasgar the money and instructed him to make the
purchase.

Paragraph (h) of the affidavit omits the identity of the
"individual" who approached Plaintiff and disappeared into
the residence with Plaintiff. The parties do not dispute that
it was Vasgar, acting on Defendant Barnum's instruction,
who did so.

Finally, paragraph (i) of the affidavit omits that the
"person" who returned from the residence to Defendant
Barnum's vehicle was Vasgar. This paragraph then states
that the informant handed the methamphetamine packet to
Defendant Barnum and told Barnum that he had
purchased it from Plaintiff. The parties also do not dispute
that it was Vasgar who did so.

On the basis of this affidavit, which Defendants admit
was partially false, a Gloucester Township Municipal Court
judge approved the issuance of a warrant to search
_________________________________________________________________

1. Defendant Barnum never searched Vasgar prior to the controlled
purchase. Because Defendant Barnum was undercover, any attempt to
search Vasgar would have disclosed the controlled nature of the
purchase. Defendants Bakley and Barnum apparently were concerned
that Barnum's failure to search Vasgar could negate any probable cause
garnered from the informant's tip and the controlled purchase.

                    4
Plaintiff's residence. The resultant search revealed the
presence of marijuana, methamphetamine, cocaine, Valium
and drug paraphernalia. Plaintiff eventually plead guilty in
New Jersey Superior Court, Law Division, to two counts of
third degree possession with intent to distribute
methamphetamine under N.J.S.A. §§ 2C: 35-5a(1) and 2C:
35-5b(9). His conviction was later overturned by the
Superior Court of New Jersey, Appellate Division, after the
state conceded that " `the affidavit contained a material
falsehood, and that if the falsehood is excised . . . there is
insufficient information to establish probable cause to
support the warrant.' " (Appellant's Br. at App. E-2.2 to E-
2.3.)

Plaintiff thereafter instituted this section 1983 action.
Plaintiff alleged that the search warrant was invalid
because it was based on a falsified affidavit, and thus, the
search of his residence violated his fourth and fourteenth
amendment rights. Defendants moved for summary
judgment on the basis that as public officials, they were
entitled to qualified immunity. In reviewing the affidavit, the
district court excised the affirmative misrepresentations
and supplied the omitted facts "to show the buy which
actually took place on April 4, 1990." Id. at App. E-10.15.
The district court then reevaluated the municipal court
judge's probable cause finding and concluded that no
genuine issue of material fact existed and that this
"corrected affidavit" established probable cause. The district
court therefore granted Defendants' motions for summary
judgment. This appeal followed.

II.

As government officials engaged in discretionary
functions, Defendants are qualifiedly immune from suits
brought against them for damages under section 1983
"insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982); see also Siegert v. Gilley, 500 U.S. 226,
232-33 (1991) (quoting Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)). Where a defendant asserts a qualified
immunity defense in a motion for summary judgment, the

                    5
plaintiff bears the initial burden of showing that the
defendant's conduct violated some clearly established
statutory or constitutional right. See In re City of Phila.
Litig., 49 F.3d 945, 961 (3d Cir. 1995); D.R. v. Middle Bucks
Area Vocational Technical Sch., 972 F.2d 1364, 1368 (3d
Cir. 1992); see also Albright v. Rodriguez, 51 F.3d 1531,
1534-35 (10th Cir. 1995).

Only if the plaintiff carries this initial burden must the
defendant then demonstrate that no genuine issue of
material fact remains as to the "objective reasonableness" of
the defendant's belief in the lawfulness of his actions.
Albright, 51 F.3d at 1535. This procedure eliminates the
needless expenditure of money and time by one who
justifiably asserts a qualified immunity defense from suit.
See Siegert, 500 U.S. at 232. Thus, we begin with the
predicate question of whether Plaintiff's allegations are
sufficient to establish " `a violation of a constitutional right
at all.' " In re City of Phila. Litig., 49 F.3d at 961 (quoting
Siegert, 500 U.S. at 232)); Middle Bucks Area Vocational
Technical Sch., 972 F.2d at 1368.

III.

A section 1983 plaintiff who challenges the validity of a
search warrant by asserting that law enforcement agents
submitted a false affidavit to the issuing judicial officer
must satisfy the two-part test developed by the Supreme
Court in Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
See Lippay v. Christos, 996 F.2d 1490, 1502, 1504 (3d Cir.
1993). This is true whether the alleged falsehood is an
affirmative misrepresentation or a material omission. See,
e.g., United States v. Frost, 999 F.2d 737, 742-43 & n.2 (3d
Cir. 1993); Stewart v. Donges, 915 F.2d 572, 582 (10th Cir.
1990).

Under Franks and its progeny, the plaintiff must prove,
by a preponderance of the evidence, (1) that the affiant
knowingly and deliberately, or with a reckless disregard for
the truth, made false statements or omissions that create a
falsehood in applying for a warrant; and (2) that such
statements or omissions are material, or necessary, to the
finding of probable cause. See Franks, 438 U.S. at 171-72;

                     6
Frost, 999 F.2d at 742-43; Velardi v. Walsh, 40 F.3d 569,
573 (2d Cir. 1994).

Defendants admit generally that the affidavit
misrepresents the facts surrounding the controlled
purchase by Vasgar, and that they acted with knowledge
and deliberateness in drafting the affidavit as they did.2
Thus, the first prong of the Franks standard is satisfied as
to all of the falsehoods contained in the affidavit.

We focus, then, on whether any of the affirmatively false
statements or omissions are material to the finding of
probable cause. Under Franks, falsehoods are deemed
material to the finding of probable cause if the affidavit,
"with the . . . false material set to one side . . . is
insufficient to establish probable cause." Franks, 438 U.S.
at 156. Thus, we proceed to remove the falsehoods from the
affidavit that was submitted to the municipal court judge,
and then, to determine whether Plaintiff has shown there to
be a genuine factual dispute as to the reformulated
affidavit's sufficiency to establish probable cause. In this
initial step of removing the falsehoods from the affidavit, we
will address the affirmative misrepresentations and
omissions contained in the affidavit, in turn.

IV.

When confronted with an affirmative misrepresentation in
an affidavit submitted to procure a search warrant, a court
must excise the false statement from the affidavit. Id.;
United States v. Ford, 22 F.3d 374, 379 (1st Cir. 1994);
Forster v. County of Santa Barbara, 896 F.2d at 1146, 1148
(9th Cir. 1990). A section 1983 plaintiff then must prove by
a preponderance of the evidence that probable cause does
not exist under the corrected affidavit; to wit, the plaintiff
must prove that the false statements were material to the
original probable cause finding.
_________________________________________________________________

2. Defendants argue, though, that they did not intend to violate
Plaintiff's fourth amendment rights and that they believed, based on
their consultation with a Camden County Assistant Prosecutor, that they
were acting in a lawful manner.

                    7
The application of this rule in the case before us requires
that we make two deletions from the affidavit that
Defendants submitted to the municipal court judge. First,
in paragraph (g) of the affidavit, we must delete the portion
of the sentence that affirmatively states that Defendant
Barnum supplied the informant with money and instructed
him to purchase methamphetamine from Plaintiff. Second,
in paragraph (i) of the affidavit, we must delete the second
sentence. This sentence affirmatively states that the
informant handed Defendant Barnum a package of
methamphetamine, which the informant stated he had
purchased from Plaintiff.

V.

As we have stated in the past, a court, when confronted
with a false affidavit used to obtain a search warrant, must
remove a falsehood created by an omission by supplying
the omitted information to the original affidavit. See, e.g.,
Frost, 999 F.2d at 742-43; United States v. Calisto, 838
F.2d 711, 714-16 (3d Cir. 1988). This approach is logical
because a literal application of the Franks principle would
require a court to excise an omission -- or, more
accurately, the portion of the affidavit reflecting the
omission. See, e.g., United States v. Ippolito, 774 F.2d 1482,
1486-87 n.1 (9th Cir. 1985). We again decline to employ
such a "mechanistic" view of Franks.3 See Calisto, 838 F.2d
at 715.

The affidavit that Defendants presented to the municipal
court judge contained four omissions. First, in paragraph
(g), the affidavit omits that Michael Vasgar accompanied
Defendant Barnum and the informant to Plaintiff's
residence. Second, this paragraph also omits that
Defendant Barnum did not search Vasgar, as he had done
_________________________________________________________________

3. Our independent research reveals apparent unanimity among our
sister circuits as to supplying or adding any omitted facts to the
affidavit. United States v. Gladney, 48 F.3d 309, 314 (8th Cir. 1995);
Velardi, 40 F.3d at 573-74; United States v. Knapp, 1 F.3d 1026, 1029
(10th Cir. 1993); United States v. Higgins, 995 F.2d 1, 4 (1st Cir. 1993);
Stewart, 915 F.2d at 582 n.13; United States v. Martin, 615 F.2d 318,
328 (5th Cir. 1980).

                    8
to the informant. Third, paragraph (h) -- which details an
"individual['s]" leaving Defendant Barnum's vehicle,
approaching Plaintiff's house, greeting Plaintiff and
entering the house with Plaintiff -- fails to identify this
"individual" as Vasgar. Instead, the paragraph, when read
in the context created by the immediately preceding and
subsequent paragraphs, implies that this "individual" was
the informant. Finally, paragraph (i) likewise omits the
identity of the "person" who exited Plaintiff's house and
returned directly to Defendant Barnum's vehicle. Like
paragraph (h), the statement implies that this "person" was
the informant.

Thus, we must supply these previously omitted facts to
the affidavit. A reconstituted paragraph (g) must disclose
that before arriving at the Sherwood residence, Defendant
Barnum and the informant picked up Michael Vasgar at his
residence and the three then drove to Plaintiff's residence.
Defendant Barnum did not search Vasgar, and Vasgar did
not know of the controlled nature of the narcotics
purchase. Next, paragraph (h) must be rewritten to state
that it was Michael Vasgar who went to the rear door of
Plaintiff's residence, was greeted by Plaintiff and
disappeared into the residence with Plaintiff. Finally,
paragraph (i) must be altered to reflect that it was Michael
Vasgar who exited Plaintiff's house and returned directly to
Defendant Barnum's vehicle.

VI.

As a final matter, we must determine whether the district
court properly concluded that no genuine issue of material
fact exists as to whether this corrected affidavit establishes
probable cause. Probable cause exists to support the
issuance of a search warrant if, based on a totality of the
circumstances, "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).

Typically, the existence of probable cause in a section
1983 action is a question of fact. Groman v. Township of
Manalapan, 47 F.3d 628, 635 (3d Cir. 1995); Velardi, 40
F.3d at 574 n.1. The district court may conclude in the

                     9
appropriate case, however, that probable cause did exist as
a matter of law if the evidence, viewed most favorably to
Plaintiff, reasonably would not support a contrary factual
finding.4 Because the issuing municipal court judge never
reviewed the corrected affidavit, we review the district
court's prediction that a reasonable municipal court judge,
presented with the corrected affidavit, could not conclude
that the affidavit was insufficient to establish probable
cause. Cf. Velardi, 40 F.3d at 574 n.1.

We hold that the district court correctly determined that
no genuine issue of material fact exists as to whether the
corrected affidavit supports a finding of probable cause.
Defendant Barnum possesses specialized training in
narcotics enforcement and fifteen years of experience in
drug-related investigations, arrests, and prosecutions.
Defendant Bakley is similarly trained. The informant had
proved reliable in the past by providing information and
assistance "leading to several arrests for drug-related
offenses." (Appellant's Br. at App. E-1.2.)

In this case, the informant told Defendant Barnum that
Plaintiff was presently distributing "large quantities of
alleged methamphetamine from his residence" and that a
drug purchase from Plaintiff could be arranged. Id. Plaintiff
has been arrested numerous times dating back to 1978 for
drug-related offenses in both Camden and Gloucester
counties. During the week of April 2, 1990, Defendants met
with the informant, who tried unsuccessfully "to arrange a
drug purchase from [Plaintiff], but [Plaintiff] was not at
home." Id. Defendant Barnum met with the informant, for
a second time, on April 4, 1990. At this meeting, the
informant told Defendant Barnum that he had arranged a
drug purchase from Plaintiff.
_________________________________________________________________

4. As we recently noted, tension exists as to the proper role of the judge
and jury where qualified immunity is asserted. Grant v. City of
Pittsburgh, 98 F.3d 116, 122 (3d Cir. 1996). The Supreme Court has held
that the application of qualified immunity is a question of law. Siegert,
500 U.S. at 232. In contrast, the existence of probable cause to support
a warrant, when raised in a section 1983 action, is a question of fact.
Groman, 47 F.3d at 635. This may prove problematic in attempting to
resolve immunity issues in the early stages of litigation where a genuine
and material factual dispute exists concerning probable cause.

                    10
After searching the informant, Defendant Barnum and
the informant drove to Michael Vasgar's residence and
recruited him to assist in the transaction. Defendant
Barnum did not search Vasgar because Vasgar did not
know that Defendant Barnum was a law enforcement
officer and that he was partaking in a controlled narcotics
purchase.

The affidavit then recites that Defendant Barnum and the
informant watched from Barnum's vehicle as Vasgar
approached and knocked on the rear door of Plaintiff's
residence, was greeted by Plaintiff, and both men went into
the residence. Next, the affidavit reports that Vasgar exited
the residence "a few minutes later" and returned directly to
Defendant Barnum's car.

As a result of the revisions made to the affidavit by the
district court, the next paragraph now ambiguously refers
to "evidence" received by Defendant Barnum from the
ostensible transaction. Finally, as relevant, the affidavit
states that Defendant Bakley received a positive response
for methamphetamine after conducting a field test of this
"substance."

We acknowledge that as a result of the need to delete the
affirmative misrepresentations contained in the original
affidavit, the corrected affidavit contains no direct reference
to Vasgar's being given money and instructions by
Defendant Barnum to purchase methamphetamine from
Plaintiff. Also, the corrected affidavit does not state
explicitly that Vasgar returned to Defendant Barnum's
vehicle and handed him a package of methamphetamine
that he claimed to have purchased from Plaintiff. Finally,
the affidavit discloses Vasgar's role in the controlled
purchase and that he was not searched prior to his visit
with Plaintiff.

We find, however, that Plaintiff has failed to demonstrate
that the deletion of the affirmatively false statements and
the supplying of the omitted information materially affected
the existence of probable cause. Defendants received a tip
from a reliable informant and corroborated the tip with a
controlled narcotics purchase. While the details of the
transaction are not ideally set forth in the corrected

                    11
affidavit, the affidavit still states clearly the content of a
reliable informant's tip, the purpose of the April 4, 1990
visit to Plaintiff's residence, Vasgar's unwitting assistance
in the effort, and Defendants' receipt of methamphetamine
from the visit.

We conclude then that Defendants' affirmative
misrepresentations and omissions were not material to the
probable cause finding. Therefore, we hold that Plaintiff has
failed to carry his initial burden of alleging a violation of a
constitutional right. In light of Plaintiff's failure to carry his
initial burden, Defendants were not required to
demonstrate the objective reasonableness of their beliefs in
the lawfulness of their actions. See Velardi, 40 F.3d at 573;
Forster, 896 F.2d at 1148.

VII.

For the foregoing reasons we will affirm the order of the
district court granting summary judgment in favor of
Defendants.

                     12
SLOVITER, Chief Judge, dissenting.

I am unable to join the decision of the majority affirming
the district court's grant of summary judgment for the
defendants based on qualified immunity. I believe the
question before us is not, as the majority states at the
outset, one arising out of the fallout from the drug scourge,
but is instead whether zealous law enforcement agents
should be immune from civil liability when they deliberately
falsify information in presenting evidence to the magistrate
in order to obtain a search warrant.

There are relevant facts in this matter that I believe merit
additional consideration before we foreclose civil liability.
Sherwood was the subject of two indictments, one in
Gloucester County and the other in Camden County. He
pled guilty to five charges, three in the Gloucester County
indictment and two in the Camden County indictment. The
latter two charges were both for third degree possession
with intent to distribute methamphetamine, and only those
are at issue here. Sherwood's guilty plea came only after
the state trial judge denied his motion to suppress the
evidence obtained as a result of the Camden County
search. Sherwood was sentenced to imprisonment on terms
to run concurrent with each other and with those on the
Gloucester County charges.

On appeal, the Superior Court of New Jersey, Appellate
Division, affirmed the convictions and sentences on the
Gloucester County charges, but vacated the convictions
arising under the Camden County indictment because the
search and seizure were predicated on a warrant obtained
upon an affidavit based on knowingly false information. In
fact, the per curiam decision of the state appellate court
states that "[t]he State concedes that, `the affidavit
contained a material falsehood, and that if the falsehood is
excised . . . there is insufficient information to establish
probable cause to support the warrant.' " App. at E-2.2-3.
Upon remand, the trial division then vacated the judgment
of conviction on the Camden County indictment, "it . . .
appearing that the State has insufficient evidence absent
the suppressed evidence to even have the case submitted to
a jury." App. at E-3-1.

                    13
In light of this finding by the state court and the state's
concession, I find surprising the majority's conclusion that
the defendant officers' misrepresentations and omissions
were not material to the finding of probable cause by the
magistrate. Admittedly, the New Jersey courts did not need
to make the sophisticated analysis of the precedent
engaged in by the majority because the state conceded the
issue. But it must have had some basis to make such a
concession. Thus, I can only attribute the majority's
conclusion to its decision that the defendants' affidavit
should not only be redacted of all of the
misrepresentations, but that the affidavit should be
corrected to include the relevant facts omitted by the
officers. It is with that process that I disagree.

The relevant analysis must begin with Franks v.
Delaware, 438 U.S. 154 (1978), where the issue arose in
the context of a defendant's appeal from his conviction in
state court on the ground that the warrant affidavit was
procured by misrepresentations. Although proof of
negligence or innocent mistake is insufficient, the Supreme
Court rejected the state's argument that a defendant may
never challenge the veracity of a sworn statement used by
police to procure a search warrant. Instead, the Court held
that such a challenge may be made "where the defendant
makes a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the
warrant affidavit, . . . if the allegedly false statement is
necessary to the finding of probable cause . . . .". Id. at 155.

In discussing whether an evidentiary hearing is necessary
when such a challenge is made by a defendant seeking to
exclude the fruits of the search on the basis of a Fourth
Amendment violation, the Court noted that a hearing is not
required "if, when material that is the subject of the alleged
falsity or reckless disregard is set to one side, there remains
sufficient content in the warrant affidavit to support a
finding of probable cause." Id. at 171-72 (emphasis added).
Thus, Franks speaks only in terms of setting aside the
falsities, and says nothing about substitution of the omitted
facts.

                     14
As the majority notes, many circuits seem to have
extended Franks not only to exclude material
misstatements from the reconstituted affidavits but also to
include material omissions. See e.g., United States v.
Knapp, 1 F.3d 1026, 1029 (10th Cir. 1993); United States
v. Frost, 999 F.2d 737, 743 (3d Cir.), cert. denied, 510 U.S.
1001 (1993); United States v. Higgins, 995 F.2d 1, 4 (1st
Cir. 1993); United States v. Martin, 615 F.2d 318, 328 (5th
Cir. 1980). However, the inquiry in those cases was made
in criminal proceedings pursuant to the defendant's
challenge to the affidavit on Fourth Amendment grounds,
and was designed to ascertain "whether the affidavit would
have provided probable cause if it had contained a
disclosure of the omitted information." Frost , 999 F.2d at
743.

That is not the issue before us. Instead, in this civil
action for damages for violation of the plaintiff's
constitutional rights, we must decide whether
reconstitution of the warrant affidavit should be permitted
to provide a defense on behalf of those police officers who
conceded that they knowingly misrepresented the facts. I
fail to see any persuasive reason in the majority's opinion
why we should do so. It is not required by the Supreme
Court's jurisprudence on this issue; certainly not by Franks
where the Court, albeit in another context, voiced its
disapproval of insulation of an officer's deliberate
misstatements. See 428 U.S. at 164 n.6.

The majority relies on this court's opinion in United
States v. Calisto, 838 F.2d 711 (3d Cir. 1988), where we
rejected a criminal defendant's argument that we should
limit our redaction of the warrant affidavit to striking the
intentionally misleading portions and determine the
existence of probable cause by reference only to the
redacted document. See id. at 715. Instead, we considered
whether the affidavit would still have provided probable
cause if the facts omitted from the affidavit had been
disclosed, i.e., that the information about the defendant
that led to the issuance of the warrant passed through the
hands of two additional police officers. See id. We decided
that even with the information that had been omitted to
conceal the participation of two law enforcement officers in

                    15
order to protect the original confidential informant, there
would have been probable cause. Therefore we concluded
that there was no causal connection between the deception
and the challenged search. See id. at 716.

But Calisto, like the defendants in the cases referred to
above, was a criminal defendant seeking to challenge the
validity of the search, and there are obvious policy reasons
why a court may be reluctant to suppress the fruits of a
search, notwithstanding erroneous information in an
affidavit, if the objective circumstances would have
supported a finding of probable cause. It is much more
difficult to find a policy argument that would justify
shielding police officers who knowingly lied in the warrant
affidavit from a civil suit seeking damages for redress of a
constitutional injury. That Sherwood was injured is patent
from the record, for he was indicted and ultimately
sentenced based on an affidavit that the State subsequently
conceded did not establish probable cause.

Significantly, the Calisto opinion stressed that if there
were any intent on the police officer's part to mislead the
magistrate, it "was occasioned not by a scheme to deceive
the magistrate about a material fact, but by a desire to
withhold a fact not material to the magistrate's task." Id. at
715. In contrast, in this case Barnum and Bakley withheld
the information that it was Vasgar, not the confidential
informant, who was sent to buy methamphetamine from
Sherwood without having been searched for drugs before he
undertook the buy because they were apparently concerned
that a magistrate might not otherwise issue a warrant. They
had neglected to search Vasgar before the buy, and
therefore prepared a false and misleading affidavit which
made it seem as if it were the confidential informant who
was searched and who made the drug purchase thereafter.
Unlike the situation in Calisto, in Sherwood's case the
materiality of the omission was deemed determinative by
the state court and as a result it vacated Sherwood's
conviction on those counts.

This court has already indicated the approach to be
followed when the issue is not whether evidence should be
suppressed but whether the officers should be shielded
from liability for civil damages by qualified immunity. The

                    16
test under qualified immunity is an objective one, and an
officer will not be subject to liability for an illegal search or
seizure merely because it later develops that the warrant
was invalid. On the other hand, we have stated that "If a
police officer submits an affidavit containing statements he
knows to be false or would know are false if he had not
recklessly disregarded the truth, the officer obviously failed
to observe a right that was clearly established. Thus, he is
not entitled to qualified immunity." Lippay v. Christos, 996
F.2d 1490, 1504 (3d Cir. 1993)(citations omitted)(emphasis
added). This view has also been expressed by other circuits.
See Hervey v. Estes, 65 F.3d 784, 788 (9th Cir.
1995)(holding that if officer submitted an affidavit that
contained statements he knew to be false "the shield of
qualified immunity is lost"); Kelly v. Curtis, 21 F.3d 1544,
1555 (11th Cir. 1994)(holding that officer had violated a
clearly established constitutional right by seeking arrest
warrant on conclusory affidavit); Olson v. Tyler, 771 F.2d
277, 282 (7th Cir. 1985)(stating that "in cases in which
suppression would be warranted because an officer was
dishonest or reckless in preparing a warrant affidavit, that
officer would not enjoy good faith immunity for civil
damages.").

The majority relies on the decision of the Second Circuit
in Velardi v. Walsh, 40 F.3d 569 (2d Cir. 1994), a § 1983
case against two police officers alleging that they had
materially misled the magistrate in order to procure a
search warrant. In that civil case the court did allow an
affidavit to be corrected to show that the police officers,
who had not made the personal observations on which the
original warrant was predicated, had relied on observations
of others. The court held that if the affidavits were corrected
with the omitted facts, there still would have been probable
cause. See id. at 574-75.

Velardi is the only case we have found that allowed
"correction" in order to provide police officers who
deliberately misrepresented material facts with qualified
immunity. In Stewart v. Donges, 915 F.2d 572 (10th Cir.
1990), the only other § 1983 case cited by the majority in
its list of circuit decisions, see Majority Op. at 8 n.3, the
"correction" of the warrant affidavit was not made to shield

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the officer but, on the contrary, to show why he was not
entitled to such a shield. The plaintiff in Stewart based his
allegation of police misrepresentation on the officer's failure
to state in the warrant affidavit that the principal
complainant had recanted his testimony and confessed it
was a fabrication. The court held that if the affidavit were
modified with this exculpatory evidence, it would not
support probable cause. Thus, had there been no material
issue of fact, the modification would have defeated qualified
immunity rather than shielded the police from suit. See id.
at 582-83.

The distinction was specifically noted by the Eighth
Circuit when it stated: "We express no view as to whether
a defendant whose affidavit contained a deliberate
falsehood should be entitled to qualified immunity if a
corrected affidavit would still provide probable cause. A
more stringent rule may be appropriate when a liar seeks
the benefit of this defense." Bagby v. Brondhaver, 98 F.3d
1096, 1099 n.2 (8th Cir. 1996).

Ultimately, of course, a plaintiff in a § 1983 case must
prove his or her case before a jury if the path to that end
is not prevented by the qualified immunity defense. That
was the process that we followed in Lippay. I would follow
that process here, as the knowing and deliberate
misstatements are conceded. Thus, I respectfully dissent.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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