Michael Chertoff

“ IV. Having determined that the search of Jane and Mary Doe violated the Fourth Amendment, what remains is to decide whether this violation transgressed "clearly established" rights. The District Court held that it did, and the officers argue that the District Court applied the "clearly established" test at too high a level of generality.
We agree that in determining whether a right is "clearly established," we should analyze the right with specificity. ”

“ Four police officers appeal from the denial of qualified immunity in a lawsuit alleging the unlawful search of occupants of a residence in Schuylkill County, Pennsylvania. The officers argue that they did not violate clearly established federal constitutional rights when they searched a mother and her ten year old daughter in the course of executing a search warrant for narcotics at their home. ”

“ For these reasons, although a warrant should be interpreted practically, it must be sufficiently definite and clear so that the magistrate, police, and search subjects can objectively ascertain its scope. Groh, 540 U.S. at , 157 L. Ed. 2d at 1080.
As the officers correctly observe, it is perfectly appropriate to construe a warrant in light of an accompanying affidavit or other document that is incorporated within the warrant. But to take advantage of this principle of interpretation, the warrant must expressly incorporate the affidavit. ”

“ For when we examine the affidavit on which the officers rely, it is doubtful that probable cause exists to support a search of John Doe's wife and minor daughter. Paragraphs 17 and 20--which are the provisions seeking to justify an "all occupants" search--quite specifically argue that visitors may be present purchasing drugs and that dealers often give contraband to non-residents of a house in the hopes they will not be searched. We look in vain for any assertion that narcotics dealers often hide drugs on family members and young children. Perhaps they do ”

“ It is the experience of your co-affiants that drug dealers often attempt to do so when faced with impending apprehension and may give such evidence to persons who do not actually reside or own/rent the premises. This is done to prevent the discovery of said items in hopes that said persons will not be subject to search when police arrive.
. . .
As a result of the information developed, your affiant requests that a search warrant ... be issued for ... the residence of [John Doe] and all occupants therein. ”

“ An officer may reasonably rely on a magistrate's approval of an overbroad warrant because the officer normally should not be penalized for the magistrate's mistake. See Massachusetts v. Sheppard, 468 U.S. 981, 990, 82 L. Ed. 2d 737, 104 S.C.t. 3424 (1984) ; U.S. v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty Seven Cents, 307 F.3d 137, 152 (3d Cir. 2002) . But there is no reasonable basis for an officer to exceed the scope of a warrant just because he asked for broader search authority in the affidavit. ”

“ All parties here acknowledge, and we agree, that there is no genuine issue of fact that relates to the qualified immunity issue that is being appealed. Accordingly, we may decide this appeal. Our review of this legal issue is plenary. ”