FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 31, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-12696

Non-Argument Calendar

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D. C. Docket No. 07-00097-CV-WCO-2

FRANK BATTLE, SR.,

Plaintiff-Appellant,

versus

J. RONNIE WEBB,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(October 31, 2008)

Before BIRCH, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

Frank Battle, Sr. appeals the district court’s dismissal of his civil rights

action, brought pursuant to 42 U.S.C. § 1983. After a thorough review of the
record, we affirm.

Battle filed his civil action against J. Ronnie Webb, a member of the

Enforcement Division of the Georgia State Board of Workers’ Compensation,

alleging violations of the Fourth Amendment in connection with the August 29,

2001, search of his insurance business and the seizure of various files. Webb

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obtained a search warrant, but the warrant did not specify the place to be searched

or the items to be seized. Instead, the warrant incorporated Webb’s attached

affidavit, which identified the place to be searched as Battle’s office and listed the

documents and other evidence to be seized. When Webb executed the warrant, he

left a copy of the warrant and inventory of the items seized, but he did not leave a

copy of the affidavit, and no affidavit was attached to the warrant at that time.

Webb later explained that he did not supply a copy of the supporting affidavit

because he did not want to risk divulging confidential information of the

investigation.

In 2002, as a result of the search, Battle was indicted by a DeKalb County

grand jury. Battle filed a motion to suppress the evidence seized. After conducting

 In 2000, the State Board of Workers Compensation began investigating Battle in 1

connection with an insurance fraud scheme, in which Battle would collect premiums to purchase

insurance policies but instead of purchasing the policies, Battle allegedly converted the

premiums for his own purposes. As part of this investigation, Webb conducted a search of

Battle’s office. It is the events surrounding this search that led to the instant civil action.

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several hearings, the state court denied the motion to suppress. Following an

interlocutory appeal, in which the decision was affirmed, the state supreme court

granted certiorari review and remanded the issue in light of the U.S. Supreme

Court’s decision in Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d

1068 (2004). On remand, the state court granted the motion to suppress because

the failure to leave a copy of the affidavit with Battle at the time of the search

rendered the search and seizure illegal. See Battle v. State, 275 S.E.2d 506, 507

(Ga. 2005).

Nevertheless, while the case was pending, Nationwide Insurance cancelled

its contract with Battle, resulting in significant financial and business damages to

Battle. Thereafter, in 2005, the prosecutor dismissed the case against Battle. On

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August 27, 2007, Battle filed the instant complaint.

Webb moved to dismiss, Fed.R.Civ.P. 12(b), alleging that the complaint was

barred by the statute of limitations and, alternatively, that he was entitled to

qualified immunity. Without addressing the timeliness of the action, the district

court granted the motion to dismiss on qualified immunity grounds. The district

court first concluded that there was no constitutional violation even though the

 Battle alleges that Nationwide Insurance cancelled the contract after it apparently 2

learned of the allegations. However, the evidence submitted does not indicate Nationwide

Insurance’s reasons for canceling the contract.

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affidavit was not attached to the copy of the warrant given to Battle at the time of

the search. In addition, the court concluded that, even if there was a constitutional

violation, the right was not clearly established at the time of the violation. The

court noted that Groh was not decided until 2004, three years after the search

occurred. This appeal followed.

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Battle urges us to reverse the dismissal because the search warrant was

facially invalid under Groh, and the constitutional right under the Fourth

Amendment was clearly established by the terms of the amendment itself.

We review de novo a trial court’s ruling on a motion to dismiss a complaint

on qualified immunity grounds. Long v. Slaton, 508 F.3d 576, 579 (11th Cir.

2007). In determining whether the complaint alleges the violation of a clearly

established right, we accept the allegations in the complaint as true and draw all

reasonable inferences therefrom in favor of the plaintiff. Id. We first ask whether

a constitutional violation occurred; we then ask whether the violation was already

clearly established by the law at the time. Saucier v. Katz, 533 U.S. 194, 121 S.Ct.

2151, 2156, 150 L.Ed.2d 272 (2001); see also Hope v. Pelzer, 536 U.S. 730, 736,

122 S.Ct. 2508, 2513, 153 L.Ed.2d 666 (2002). “[D]etermining whether a

 To the extent that Battle alleged a claim of malicious prosecution, that claim fails, as 3

Battle has not named the prosecutor who was responsible for obtaining an indictment. Eubanks

v. Gerwen, 40 F.3d 1157, 1161 (11th Cir. 1994).

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constitutional right was clearly established ‘must be undertaken in light of the

specific context of the case, not as a broad general proposition.’” Vinyard v.

Wilson, 311 F.3d 1340, 1349 (11th Cir. 2002) (quoting Saucier, 533 U.S. at 201).

The Supreme Court has variously defined the relevant, dispositive inquiry as

“whether it would be clear to a reasonable officer that his conduct was unlawful in

the situation he confronted,” Saucier, 533 U.S. at 202, and “whether the state of the

law ... gave [the officer] fair warning” that his actions were unconstitutional, Hope,

536 U.S. at 741. In most cases, fact-specific precedents are necessary to give an

officer fair warning of the applicable law. See Vinyard, 311 F.3d at 1351-1352.

To demonstrate that the law at the time clearly established that Webb’s

conduct would violate the Constitution, Battle should point to either (1) earlier case

law from the Supreme Court, this court, or the highest court of Georgia that is

materially similar to the current case and therefore provided clear notice of the

violation or (2) general rules of law from a federal constitutional or statutory

provision or earlier case law that applied with “obvious clarity” to the

circumstances, establishing clearly the unlawfulness of Webb’s conduct. See

Marsh v. Butler County, 268 F.3d 1014, 1031-1033 (11th Cir. 2001) (en banc);

Willingham v. Loughnan, 321 F.3d 1299, 1301-1303 (11th Cir. 2003); Vinyard,

311 F.3d at 1349-53. Thus, to avoid dismissal on qualified immunity grounds,

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Battle has the burden of demonstrating that Webb-at the pertinent time and given

the specific circumstances of this case-had fair notice that his conduct would

violate clear federal law. Long, 508 F.3d at 584 (citation omitted).

Battle cannot meet this burden. The Fourth Amendment provides,

[t]he right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. Here, Battle cannot show a Fourth Amendment violation.

As this court has held, a warrant may satisfy the requirements of the Fourth

Amendment through incorporation. United States v. Wuagneux, 683 F.2d 1343

(11th Cir. 1982). In that case, an IRS agent requested a search warrant in which he

identified eleven categories of records he was seeking. One of the categories listed

called for “the receipt and disbursement of kickback funds.” In support of the

warrant, the agent submitted an affidavit detailing the kickbacks he believed had

been paid and received. 683 F.2d at 1349-1351. The defendant challenged the

sufficiency of the warrant for failure to state with particularity the items to be

seized. After the district court denied the motion to suppress, this court concluded

that an affidavit incorporated into a warrant application could cure a defect or

ambiguity in the application if the affidavit was attached to the application. Id. at

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1351 n.6. This court further acknowledged that, in some circumstances, it could be

permissible to leave a copy of the warrant without the supporting affidavit at the

time of the search due to the need for confidentiality in an investigation. Id.

Because Webb’s affidavit was incorporated into the warrant and specified

the places to be searched and the items to be seized, Battle cannot show any

constitutional violation.

Even if we were to conclude that there was a constitutional violation and the

warrant was facially invalid, the law was not clearly established at the time of the

search.

In Groh, the Supreme Court considered the legality of a search premised on

a warrant that failed to describe with particularity the place to be searched and the

items to be seized. 540 U.S. at 554. The application specified the items agents

sought, and in an accompanying affidavit, the agent explained the basis for his

belief the items would be found during a search. However, the application did not

specify the items to be seized and did not incorporate the affidavit. Id. at 554-555.

Upon review, the Court concluded that the warrant was facially invalid because the

Fourth Amendment required particularity of the items to be seized. Id. at 557. The

Court further stated that the amendment required particularity in the warrant and

not the supporting documents. Id. at 557. The Court explained, however, that it

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was not deciding whether a warrant could incorporate or cross-reference other

documents, and it expressly recognized that many circuits have held that a court

may consider a warrant with reference to supporting affidavits “if the warrant uses

appropriate words of incorporation and if the supporting document accompanies

the warrant.” Id. at 557-558. Because the warrant application in Groh did not

incorporate, and neither the application nor the affidavit accompanied the warrant,

the court did not address the issue of incorporation further. Id. at 558. The Court

then concluded that there could be no qualified immunity because the text of the

Fourth Amendment specifically required particularity and, thus, the right was

clearly established and the officer should have known that the warrant was

deficient. Id. at 563-564.

The Groh decision issued in 2004. Prior to that date, the case law of this

circuit did not clearly establish that Webb’s conduct was improper. See

Wuagneux, 683 F.2d 1343 (11th Cir. 1982).

Thus, at the time Webb searched Battle’s business, the existing case law

arguably permitted Webb’s conduct. The warrant in Battle’s case incorporated

Webb’s affidavit and Webb explained that he did not leave a copy of the affidavit

at the time of the search due to confidentiality concerns. In light of the case law at

the time of the search, we cannot conclude that the rights were clearly established.

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Accordingly, we AFFIRM the district court.

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