Sherwood v. Mulvihill , 113 F.3d 396 ( 1997 )

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, 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 Plaintiffs 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 Plaintiffs 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 Bamum’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.

(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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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(l) 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, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Siegert v. Gilley, 500 U.S. 226, 232-33, 111 S.Ct. 1789, 1793-94, 114 L.Ed.2d 277 (1991) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985)). Where a defendant asserts a qualified immunity defense in a motion for summary judgment, the 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, 111 S.Ct. at 1793. Thus, we begin with the predicate question of whether Plaintiffs 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, 111 S.Ct. at 1793); 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, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (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 á 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, 98 S.Ct. at 2684-85; 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 Yasgar, 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, 98 S.Ct. at 2676. 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.

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 Bamum 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 Plaintiffs residence. Second, this paragraph also omits that Defendant Barnum did not search Vasgar, as he had done to the informant. Third, paragraph (h) — which details an “individuales]” leaving Defendant Barnum’s vehicle, approaching Plaintiffs 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 Plaintiffs 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 Bamum and the informant picked up Michael Vasgar at his residence and the three then drove to Plaintiffs residence. Defendant Bamum 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 Plaintiffs 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 Plaintiffs 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, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (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 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 ease, 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.

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 Plaintiffs 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 Bamum’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 affidavit, the affidavit still states clearly the content of a reliable informant’s tip, the purpose of the April 4, 1990 visit to Plaintiffs 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 Plaintiffs 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.

1 . Defendant Barnum never searched Vasgar pri- or 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 Bamum’s failure to search Vasgar could negate any probable cause garnered from the informant’s tip and the controlled purchase.

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.

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).

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, 111 S.Ct. at 1793. 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.