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. e du/thir dc ir c uit_1997/109Filed 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, 1997George 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 agai n, the fallout from the drug scourge afflicting our societ y.

George Sherwood ("Plaintiff ") appeals from an orde r of the district court granting the motions of Defendan ts,

2Ronald Bakley and James Barnum ("Defendants"), for

summary judgment. Plaintiff sought relief against Defendants for allegedly violating his fourth and f ourteenth amendment rights by falsifying an affidavit used to obtain
a warrant to search Plaintiff's residence. The dist rict 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 seve ral drugrelated arrests, informed Defendant Barnum, chief o f police in Franklin Township, New Jersey, that Plaintiff wa s selling methamphetamine from his residence. The informant t old Defendant Barnum that he could arrange a narcotics purchase from Plaintiff. On April 4, 1990, Defendan t 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 sear ch
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 th e house and returned directly to Chief Barnum's vehic le. 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 l ater

identified the substance as methamphetamine.

Plaintiff contends that each of the quoted paragrap hs is false because each omits and/or affirmatively misrepresents facts surrounding the controlled tran saction. First, paragraph (g) of the affidavit omits that a third person, Michael Vasgar, who was unaware that Defend ant Barnum was a police officer and that he was aiding in a controlled narcotics purchase, accompanied Defendan t
Barnum and the informant to Plaintiff's residence o n April 4, 1990.1 In this same paragraph, the affidavit sta tes 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 act ually gave Vasgar the money and instructed him to make th e purchase.

Paragraph (h) of the affidavit omits the identity o f the "individual" who approached Plaintiff and disappear ed into the residence with Plaintiff. The parties do not di spute that it was Vasgar, acting on Defendant Barnum's instruc tion,
who did so.

Finally, paragraph (i) of the affidavit omits that the "person" who returned from the residence to Defenda nt Barnum's vehicle was Vasgar. This paragraph then st ates that the informant handed the methamphetamine packe t to
Defendant Barnum and told Barnum that he had purchased it from Plaintiff. The parties also do no t dispute that it was Vasgar who did so.

On the basis of this affidavit, which Defendants ad mit was partially false, a Gloucester Township Municipa l 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 n ature of the purchase. Defendants Bakley and Barnum apparently w ere concerned that Barnum's failure to search Vasgar could negate any probable cause garnered from the informant's tip and the controlle d purchase.

4Plaintiff's residence. The resultant search reveale d the

presence of marijuana, methamphetamine, cocaine, Va lium and drug paraphernalia. Plaintiff eventually plead guilty in New Jersey Superior Court, Law Division, to two cou nts 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 th e Superior Court of New Jersey, Appellate Division, a fter the
state conceded that " `the affidavit contained a ma terial falsehood, and that if the falsehood is excised . . . there is insufficient information to establish probable caus e to support the warrant.' " (Appellant's Br. at App. E- 2.2 to E2.3.)

Plaintiff thereafter instituted this section 1983 a ction. Plaintiff alleged that the search warrant was inval id because it was based on a falsified affidavit, and thus, the
search of his residence violated his fourth and fou rteenth amendment rights. Defendants moved for summary judgment on the basis that as public officials, the y were entitled to qualified immunity. In reviewing the af fidavit, the district court excised the affirmative misrepresent ations and supplied the omitted facts "to show the buy whi ch actually took place on April 4, 1990." Id. at App. E-10.15. The district court then reevaluated the municipal c ourt judge's probable cause finding and concluded that n o genuine issue of material fact existed and that thi s "corrected affidavit" established probable cause. T he district court therefore granted Defendants' motions for sum mary judgment. This appeal followed.

II.

As government officials engaged in discretionary functions, Defendants are qualifiedly immune from s uits brought against them for damages under section 1983 "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reaso nable 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

5plaintiff bears the initial burden of showing that the

defendant's conduct violated some clearly establish ed statutory or constitutional right. See In re City o f Phila. Litig. , 49 F.3d 945, 961 (3d Cir. 1995); D.R. v. Middle B ucks
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 m ust the defendant then demonstrate that no genuine issue of material fact remains as to the "objective reasonab leness" of
the defendant's belief in the lawfulness of his act ions. 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 fr om suit. See Siegert , 500 U.S. at 232. Thus, we begin with the predicate question of whether Plaintiff's allegatio ns are sufficient to establish " `a violation of a constit utional 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 validit y of a search warrant by asserting that law enforcement ag ents submitted a false affidavit to the issuing judicial officer must satisfy the two-part test developed by the Sup reme 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 i s an affirmative misrepresentation or a material omissio n. 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 af fiant knowingly and deliberately, or with a reckless disr egard for the truth, made false statements or omissions that create a falsehood in applying for a warrant; and (2) that s uch statements or omissions are material, or necessary, to the finding of probable cause. See Franks , 438 U.S. at 171-72;

6Frost , 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 knowle dge and deliberateness in drafting the affidavit as the y 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 af fidavit,
"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 f rom 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 af fidavit, we will address the affirmative misrepresentations and omissions contained in the affidavit, in turn.

IV.

When confronted with an affirmative misrepresentati on 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, th e plaintiff must prove that the false statements were material to the original probable cause finding.

___________________________________________________ ______________

2. Defendants argue, though, that they did not inte nd to violate Plaintiff's fourth amendment rights and that they b elieved, based on their consultation with a Camden County Assistant P rosecutor, that they were acting in a lawful manner.

7The 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 t he portion of the sentence that affirmatively states that Defe ndant Barnum supplied the informant with money and instru cted him to purchase methamphetamine from Plaintiff. Sec ond, in paragraph (i) of the affidavit, we must delete t he second sentence. This sentence affirmatively states that t he 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 confro nted
with a false affidavit used to obtain a search warr ant, must remove a falsehood created by an omission by supply ing 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 l ogical 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 em ploy
such a "mechanistic" view of Franks .3 See Calisto , 838 F.2d
at 715.

The affidavit that Defendants presented to the muni cipal court judge contained four omissions. First, in par agraph (g), the affidavit omits that Michael Vasgar accomp anied
Defendant Barnum and the informant to Plaintiff's residence. Second, this paragraph also omits that Defendant Barnum did not search Vasgar, as he had d one

___________________________________________________ ______________

3. Our independent research reveals apparent unanim ity among our sister circuits as to supplying or adding any omitt ed 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).

8to the informant. Third, paragraph (h) -- which det ails an

"individual['s]" leaving Defendant Barnum's vehicle

, approaching Plaintiff's house, greeting Plaintiff a nd entering the house with Plaintiff -- fails to ident ify this "individual" as Vasgar. Instead, the paragraph, whe n read in the context created by the immediately preceding and subsequent paragraphs, implies that this "individua l" was the informant. Finally, paragraph (i) likewise omit s the identity of the "person" who exited Plaintiff's hou se and returned directly to Defendant Barnum's vehicle. Li ke paragraph (h), the statement implies that this "per son" was
the informant.

Thus, we must supply these previously omitted facts to the affidavit. A reconstituted paragraph (g) must d isclose that before arriving at the Sherwood residence, Def endant Barnum and the informant picked up Michael Vasgar a t his
residence and the three then drove to Plaintiff's r esidence. 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 doo r of Plaintiff's residence, was greeted by Plaintiff and disappeared into the residence with Plaintiff. Fina lly, paragraph (i) must be altered to reflect that it wa s Michael Vasgar who exited Plaintiff's house and returned di rectly to
Defendant Barnum's vehicle.

VI.

As a final matter, we must determine whether the di strict court properly concluded that no genuine issue of m aterial
fact exists as to whether this corrected affidavit establishes probable cause. Probable cause exists to support th e issuance of a search warrant if, based on a totalit y of the circumstances, "there is a fair probability that co ntraband or evidence of a crime will be found in a particula r place."
Illinois v. Gates , 462 U.S. 213, 238 (1983).

Typically, the existence of probable cause in a sec tion 1983 action is a question of fact. Groman v. Townsh ip 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

9appropriate case, however, that probable cause did exist as

a matter of law if the evidence, viewed most favora bly 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 dis trict court's prediction that a reasonable municipal cour t judge, presented with the corrected affidavit, could not c onclude that the affidavit was insufficient to establish pr obable
cause. Cf. Velardi , 40 F.3d at 574 n.1.

We hold that the district court correctly determine d that no genuine issue of material fact exists as to whet her the corrected affidavit supports a finding of probable cause. Defendant Barnum possesses specialized training in narcotics enforcement and fifteen years of experien ce in drug-related investigations, arrests, and prosecuti ons. Defendant Bakley is similarly trained. The informan t had proved reliable in the past by providing informatio n and assistance "leading to several arrests for drug-rel ated offenses." (Appellant's Br. at App. E-1.2.)

In this case, the informant told Defendant Barnum t hat Plaintiff was presently distributing "large quantit ies of alleged methamphetamine from his residence" and tha t a drug purchase from Plaintiff could be arranged. Id. Plaintiff has been arrested numerous times dating back to 197 8 for drug-related offenses in both Camden and Gloucester counties. During the week of April 2, 1990, Defenda nts met with the informant, who tried unsuccessfully "to ar range 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, t he informant told Defendant Barnum that he had arrange d a drug purchase from Plaintiff.

___________________________________________________ ______________

4. As we recently noted, tension exists as to the p roper role of the judge and jury where qualified immunity is asserted. Gran t v. City of Pittsburgh , 98 F.3d 116, 122 (3d Cir. 1996). The Supreme Cour t has held that the application of qualified immunity is a que stion of law. Siegert

, 500 U.S. at 232. In contrast, the existence of prob able 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 att empting to resolve immunity issues in the early stages of liti gation where a genuine and material factual dispute exists concerning prob able cause.

10After searching the informant, Defendant Barnum and

the informant drove to Michael Vasgar's residence a nd
recruited him to assist in the transaction. Defenda nt 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 n arcotics purchase.

The affidavit then recites that Defendant Barnum an d the informant watched from Barnum's vehicle as Vasgar approached and knocked on the rear door of Plaintif f's residence, was greeted by Plaintiff, and both men w ent into the residence. Next, the affidavit reports that Vas gar exited
the residence "a few minutes later" and returned di rectly 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 a ffidavit states that Defendant Bakley received a positive re sponse for methamphetamine after conducting a field test o f this
"substance."

We acknowledge that as a result of the need to dele te the affirmative misrepresentations contained in the ori ginal affidavit, the corrected affidavit contains no dire ct reference to Vasgar's being given money and instructions by Defendant Barnum to purchase methamphetamine from Plaintiff. Also, the corrected affidavit does not s tate explicitly that Vasgar returned to Defendant Barnum 's vehicle and handed him a package of methamphetamine that he claimed to have purchased from Plaintiff. F inally, the affidavit discloses Vasgar's role in the contro lled purchase and that he was not searched prior to his visit
with Plaintiff.

We find, however, that Plaintiff has failed to demo nstrate that the deletion of the affirmatively false statem ents and the supplying of the omitted information materially affected the existence of probable cause. Defendants receive d 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 correc ted

11affidavit, the affidavit still states clearly the c ontent 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 methamphe tamine
from the visit.

We conclude then that Defendants' affirmative misrepresentations and omissions were not material to the probable cause finding. Therefore, we hold that Pla intiff has failed to carry his initial burden of alleging a vi olation of a constitutional right. In light of Plaintiff's failu re to carry his initial burden, Defendants were not required to demonstrate the objective reasonableness of their b eliefs 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 o f
Defendants.

12SLOVITER, Chief Judge , dissenting.

I am unable to join the decision of the majority af firming the district court's grant of summary judgment for the defendants based on qualified immunity. I believe t he question before us is not, as the majority states a t the outset, one arising out of the fallout from the dru g scourge, but is instead whether zealous law enforcement agen ts should be immune from civil liability when they del iberately falsify information in presenting evidence to the m agistrate
in order to obtain a search warrant.

There are relevant facts in this matter that I beli eve 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. H e pled guilty to five charges, three in the Glouceste r County indictment and two in the Camden County indictment. The latter two charges were both for third degree posse ssion 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 t erms to run concurrent with each other and with those on the Gloucester County charges.

On appeal, the Superior Court of New Jersey, Appell ate Division, affirmed the convictions and sentences on the Gloucester County charges, but vacated the convicti ons arising under the Camden County indictment because the search and seizure were predicated on a warrant obt ained upon an affidavit based on knowingly false informat ion. In fact, the per curiam

decision of the state appellate court states that "[t]he State concedes that, `the affida vit contained a material falsehood, and that if the fal sehood 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 ju dgment of conviction on the Camden County indictment, "it

. . . appearing that the State has insufficient evidence absent the suppressed evidence to even have the case submi tted to a jury." App. at E-3-1.

13In light of this finding by the state court and the state's

concession, I find surprising the majority's conclu sion that the defendant officers' misrepresentations and omis sions were not material to the finding of probable cause by the magistrate. Admittedly, the New Jersey courts did n ot need to make the sophisticated analysis of the precedent engaged in by the majority because the state conced ed 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' aff idavit should not only be redacted of all of the misrepresentations, but that the affidavit should b e 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 convic tion in state court on the ground that the warrant affidavi t was procured by misrepresentations. Although proof of negligence or innocent mistake is insufficient, the Supreme Court rejected the state's argument that a defendan t may never challenge the veracity of a sworn statement u sed by police to procure a search warrant. Instead, the Co urt held that such a challenge may be made "where the defend ant makes a substantial preliminary showing that a fals e statement knowingly and intentionally, or with reck less disregard for the truth, was included by the affian t in the warrant affidavit, . . . if the allegedly false sta tement is necessary to the finding of probable cause . . . ." . Id . at 155.

In discussing whether an evidentiary hearing is nec essary when such a challenge is made by a defendant seekin g 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 supp ort 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 t he omitted
facts.

14As 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 grou nds, and was designed to ascertain "whether the affidavi t 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 c ivil action for damages for violation of the plaintiff's constitutional rights, we must decide whether reconstitution of the warrant affidavit should be p ermitted to provide a defense on behalf of those police offi cers who conceded that they knowingly misrepresented the fac ts. I fail to see any persuasive reason in the majority's opinion why we should do so. It is not required by the Supr eme 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 deliberat e misstatements. See 428 U.S. at 164 n.6.

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

15order to protect the original confidential informan t, there

would have been probable cause. Therefore we conclu ded
that there was no causal connection between the dec eption and the challenged search. See id . at 716.

But Calisto, like the defendants in the cases refer red to above, was a criminal defendant seeking to challeng e the validity of the search, and there are obvious polic y 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 hav e supported a finding of probable cause. It is much m ore difficult to find a policy argument that would just ify shielding police officers who knowingly lied in the warrant affidavit from a civil suit seeking damages for red ress 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 subs equently conceded did not establish probable cause.

Significantly, the Calisto opinion stressed that if there were any intent on the police officer's part to mis lead the magistrate, it "was occasioned not by a scheme to d eceive the magistrate about a material fact, but by a desi re to withhold a fact not material to the magistrate's ta sk." Id. at 715. In contrast, in this case Barnum and Bakley wi thheld the information that it was Vasgar, not the confide ntial informant, who was sent to buy methamphetamine from Sherwood without having been searched for drugs bef ore he undertook the buy because they were apparently conc erned that a magistrate might not otherwise issue a warra nt. 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 informa nt who was searched and who made the drug purchase thereaf ter.
Unlike the situation in Calisto , in Sherwood's case the materiality of the omission was deemed determinativ e 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 sho uld be suppressed but whether the officers should be shiel ded from liability for civil damages by qualified immun ity. The

16test under qualified immunity is an objective one, and an

officer will not be subject to liability for an ill egal search or seizure merely because it later develops that the w arrant was invalid. On the other hand, we have stated that "If a police officer submits an affidavit containing stat ements he
knows to be false or would know are false if he had not recklessly disregarded the truth, the officer obvio usly failed to observe a right that was clearly established. Th us, he is not entitled to qualified immunity ." Lippay v. Christos , 996 F.2d 1490, 1504 (3d Cir. 1993)(citations omitted)(e mphasis 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 affidavi t that
contained statements he knew to be false "the shiel d of qualified immunity is lost"); Kelly v. Curtis , 21 F.3d 1544, 1555 (11th Cir. 1994)(holding that officer had viol ated 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 w as dishonest or reckless in preparing a warrant affida vit, that officer would not enjoy good faith immunity for civ il damages.").

The majority relies on the decision of the Second C ircuit
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 procur e a search warrant. In that civil case the court did al low an affidavit to be corrected to show that the police o fficers, who had not made the personal observations on which the original warrant was predicated, had relied on obse rvations
of others. The court held that if the affidavits we re 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 wh o deliberately misrepresented material facts with qua lified immunity. In Stewart v. Donges , 915 F.2d 572 (10th Cir. 1990), the only other § 1983 case cited by the majo rity in its list of circuit decisions, see Majority Op. at 8 n.3, the
"correction" of the warrant affidavit was not made to shield

17the officer but, on the contrary, to show why he wa s not

entitled to such a shield. The plaintiff in Stewart based his allegation of police misrepresentation on the offic er's failure to state in the warrant affidavit that the principa l complainant had recanted his testimony and confesse d it
was a fabrication. The court held that if the affid avit were modified with this exculpatory evidence, it would n ot support probable cause. Thus, had there been no mat erial 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 Eight h Circuit when it stated: "We express no view as to w hether
a defendant whose affidavit contained a deliberate falsehood should be entitled to qualified immunity if a corrected affidavit would still provide probable ca use. 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 di ssent.

A True Copy:

Teste:

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

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