1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Sherwood v. Mulvihill" (1997). 1997 Decisions. Paper 109.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/109
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 drugrelated 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 E2.3.) 

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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