*1 Al- type of case. meaningless in this left incongruous, a result seems
though such restrictions in these write
am hesitant homi- justifiable statutory definition policy deci- Instead, are these I believe
cide. legislature.2 left to the properly
sions individually and as Guard- BAKER,
Inez Tiffany Baker; ian ad Litem Baker; Jacquine
Baker; right if of (suing in own their
Anderson
majority), Appellants, TOWNSHIP; Robert Officer
MONROE officially); (individually and (officers of the Monroe 1-8
John Does individu- Department,
Township Police capacity); John ally their and in official U.S.D.E.A., (officers
Does 9-12 capaci-
individually official and in their (law enforcement
ty); Does 13-16 John individually acting and in jointly sever- capacity); all
official
ally as well in both individual liable Appellees. capacities,
official
No. 94-5069. Appeals, Court States
United
Third Circuit. Aug. 1994.
Argued 22, 1995. March
Decided Rehearing; Petition for Panel
Sur Rehearing In Banc
Suggestion for 1,May 1995.
Denied Commentaries, or in defense in self-defense privilege to See, kill e.g., Model Penal Code 2. ("iT]here the breadth (1985) are others nullified (Introduction), often at 4 art. 3 prevention.”); is, recognized for crime justification was, internal there still and in some states 3.04, § id. also inconsistency policy, when see limitations *2 THE OF COURT
OPINION GIBSON, Judge: Senior Circuit R. JOHN children, Corey and Baker, two her Inez daughter, Jac- and her foster summary Anderson, appeal from quine *3 42 U.S.C. them their judgment against (1988) Monroe Town- against § claim Township Armstrong, a Monroe ship, Robert officer, Doe defen- numerous John and police or federal police officers dants who were agents. The Agency Drug Enforcement illegal and sei- family alleges of property and use of their zure family force, as the which occurred excessive Baker’s the home of Mrs. approached group Griffin, just were son, Clementh The district commencing drug raid there. Town- judgment for Monroe court entered holding that Armstrong, ship for these showing that either of no Bakers made for legally responsible defendants may rights that have Bakers’ violation to also refused district court occurred. complaint to amend their allow the Bakers Doe defen- of the John correct the names dants, the sum- reconsider refused affidavit ruling on an mary judgment based local of time filed out that was on the issue and remand rules. We reverse Bakers showed whether the of for Armstrong personally liable render could rights and also alleged violations civil of for remand consideration to cor- permitted to amend Baker should be names. rect fictitious Friday, evening of on the Around 8:30 Fal- (argued), Angelo J. Jeffrey A. Libert Baker, Corey, Tiffany, Mrs. June NJ, ciani, Woodbury, for appellants. of approaching the home Jacquine were Budd, Larner, son, (argued), Griffin, and his Morris Mrs. Baker’s Susanna J. Clementh Sade, Bross, Rosenbaum, Greenberg Woods, & Cher- had invited Cheryl who girlfriend, outside, Hill, NJ, appellees. light ry It was still them to dinner. time, police from though At the same dusk. launching drug jurisdictions were BECKER, ALITO, three Circuit Before: by a apartment, GIBSON, authorized raid same R. Senior Judges, JOHN As the Bakers walked warrant.1 “no-knock” Judge.* Circuit premises Gibson, to be only an identification United John R. States Honorable * The any per- nothing about Judge Eighth mentioned Circuit Court searched and Senior Circuit dissent, designation. sitting by Although Appeals, sons. infra specified a warrant for search considers this authorizing consisted of a form 1. The warrant interpretation only persons, the common-sense (x) (x) (x) person vehi- search of: "the " described, no one bothered added). is that ever Though the document (emphasis below cle blanks, specified persons as well complete it include three in each x's filled premises. does This flawed document description space promised contained
H89
door,
up
suddenly
surprised
have trained the other officers to behave
running past
guns
them
differently, for though he was
charge
hands, shouting,
“Get down.”
Some
particular raid,
the other men were em-
(including
the officers
Armstrong) ran direct-
ployees of the
Drug
federal
Enforcement
ly
house,
into the
but others forced the Bak- Agency and the
County
Gloucester
Prosecu-
ground.
ers down to the
The Bakers testi-
office,
tor’s
whom Armstrong
expect
could
pointed
them,
fied that
guns
the officers
adequately
trained.
Since
handcuffed them and left some of them hand-
Township
Monroe
official
involved
twenty-five minutes,
cuffed for as much as
raid,
the district court found no causal
emptied
searched
Mrs.
link between anything
Township
did or
pocketbook
Baker’s
ground
onto the
outside did not do and
alleged.
the harm
After the Bakers identified
*4
Griffin,
themselves as relatives of Clementh
The
sought
Bakers then
leave to amend
the
them.
released
complaint
to correct
the fictitious
names of several of
they
the
allege
brought
The Bakers
this action
42
participated directly in
rough
treatment.
1983,
alia,
§
alleging,
U.S.C.
inter
violations
The Bakers brought
1,1992,
this suit on June
of their
rights
Fourth
by illegal
Amendment
day
the last
expiration
before
two-year
seizure and
of
They
use
excessive force.
statute of limitations. Despite
specified only
having re
Robert
and Monroe
ceived in March
Township
defendants,
1993 the names of
using
the offi
fictitious
raid,
for
cers
names
sixteen
involved in
plaintiffs
defendants whom
assisting
identified
not
in
move to
the raid.
amend their complaint to correct
the fictitious names until after the district
Armstrong and
Township
Monroe
moved
court had
summary judgment
entered
summary judgment.
for
The district court
against
5,
them on November
1993. At that
that,
held
assuming the Bakers’ Fourth
point, the district court ruled that the Bakers
rights
Amendment
violated,
the Bakers
had not
requisite
made the
showing of dili
made no showing that Armstrong either com-
gence
law,
Jersey
under New
Farrell v.
see
mitted the
personally,
violations
directed
Votator Div.
Chemetron Corp., 62 N.J.
them,
someone else to commit
or had knowl-
of
111,
(1973),
Amendment particular that the warrant analysis es its light facts taken in the most ly place describe the to be searched and the party moving favorable to the summary judg- for persons to be seized. The face the warrant non-movant, ment contrary rather than the to the requirement demonstrates its failure to meet the guide constraints we have of the Fourth referred to engages Amendment. The us in dissent lengthy interpretation reviewing in a granting summary judgment. an warrant find order authorization a search for found on at 1197-98. Infra granted leave under Fed.R.Civ.P. should moved for reconsideration The Bakers them, complaint. against argu- 15 to amend her judgment summary state claims that ing asserted law have been dismissed
should II. ruling on the section 1983 erred in its court mo- after their About three weeks claims. court’s We not disturb the district will reconsideration, they produced for tion affi the Clementh Griffin refusal consider Grif- affidavit of Clementh the first time the argue the district davit. The Bakers fin, relevant containing which was of business court miscalculated number the district court earlier held to the elements days entry judgment of its between The court ruled that were not established. true, Even if this is motion to reconsider. Bakers their motion for reconsidera- filed ar only reiterated the motion to reconsider rules, the local General tion too late under (except for guments already the court before Jersey of New Rules the District claims, state which the motion to remand law motion, except that it therefore denied granted). only filing the court law claims state remanded the state actually help the was the Grif courts. affidavit, essentially fin which was itself motion and which was filed new to reconsider appeal, argue that the dis- the Bakers On *5 ruling of court’s summary judg- well out time. district entering court erred in trict the rules. was warranted under local mo- against denying and in their ment them their and to amend tions reconsideration
complaint to names. correct fictitious III.
I. Fourth this case involve The merits of police may questions Amendment of what court not abuse The district its lawfully to happen do who find with holding that the Bakers were discretion in raid, drug of themselves in the middle diligent seeking to the ficti in correct questions responsibility of section 1983 However, complaint. tious names in their municipalities supervisors and for others’ Corey Tiffany argue the Bakers conduct. at the time of the events Baker minors question and that the statute of limitations entry the district court’s Though We review expired to has them.2 novo, summary viewing Corey judgment de supply Bakers’ brief does not us with light most to date, evidence favorable inform us Baker’s birth defendants giving the nonmovant majority in nonmovant and reached Janu Baker Spain 1991, benefit of all reasonable inferences. ary events in some six months after the Cir.1994). (3d 439, Gallegos, 26 F.3d 446 that the statute of limitations question, and produced has evidence in expired When movant has as to him. Once the defendants motion, support of his the nonmovants cannot period applicable showed the limitation had come for pleadings, rest on their but must elapsed, Corey Baker had the burden to enough to create a mate Burlington ward evidence prove the statute was tolled. rial issue of fact. See id. County Country Nat’l Club Midlantic 227, South, N.J.Super. Bank A.2d (1987). Armstrong per This he has failed to do. On order to render hand, sonally
the other
the defendants concede that
liable under section
Bakers
“may”
participated
violating
expired
statute
not have
for Tiffa must show that he
ny
rights,
that he
others to
who was born on December
directed
he,
them,
person in
therefore
for the district
violate
or that
as the
1974. We
remand
raid,
charge
knowledge
of and
court to determine whether
Jacquine was
do not
this.
2. The
also indicates
mention
events,
plaintiffs
minor
the time of
acquiesced in his subordinates’ violations.3 that
necessary
it was
to burst into the house
City
Philadelphia,
See Andrews v.
without warning
prevent
order
people
to
(3d Cir.1990);
F.2d
the house
destroying
Rode v. Del
from
evidence. He had
(3d
Cir.1988).
larciprete,
“no-knock” warrant for
very
reason.
The Bakers were at the doorstep as he ran
municipality
A
can
be liable un
in. He feared the raid could result in vio-
der section
municipality
1983 when the
itself
lence,
necessary
and considered it
get
City
causes the violation.
Canton v. Har
ground,
down
partly
protect
ris,
378, 385,
1197, 1202,
489 U.S.
109 S.Ct.
stray
them
gunshots.
from
Armstrong also
(1989).
search.
is
protect
This
reasonable to
police,
prevent
to
flight,
generally
and
A.
dangerous
avoid
confusion: “The risk of
First, we
Armstrong’s
consider
harm to
police
occupants
both
and the
is
order
Bakers to “Get down” as Arm
if the
routinely
minimized
exercise
strong ran into the
Griffin-Woods
unquestioned command of the situation.” Id.
Armstrong freely
admits
he shouted
702-03, 101
this
at
dangerous
S.Ct.
2594.
order
when
saw the Bakers and that the
quite
ness of
pronounced
chaos is
in a drug
suit,”
raid,
officers “followed
all shouting the
occupants
where' the
likely
are
to be
same command.
specifically armed,
also
police
armed,
certainly
where the
are
to this
customary way
alluded
as the
doing
and the
suspected drug opera
nature of the
things:
working
“Just from
years,
over the
tion
great
involve a
coming
would
deal
know
people
passing
that the
I’m
going
are
going by drug
application
customers.
his
secured, again,
to be
safety
warrant,
for their
as well
for the
Armstrong swore that a
However,
safety.”
as our
as Armstrong de
concerned citizen advised that “numerous
practice,
scribed
it does not
young
violate the
going
adults
children” were
Fourth
Amendment.
testified
person-
he had confirmed this
possible
(3d
Cir.1989),
denied,
It
also
1044,
is
to establish section 1983
724-25
cert.
493 U.S.
supervisory liability by showing
840,
supervisor
(1990);
a
to
110 S.Ct.
1192 regular his with was consistent and that this Armstrong said he ally by surveillance. at 685- Sharpe, 470 U.S. Under practices. not know whether per is no se 86, there 105 S.Ct. Although Sum- house. occupants of the may suspect length of time rule about the to a resident only pertains itself mers becomes the detention detained before po- warrant, it follows house Instead, court must full-scale arrest. going from coming to or may people stop lice detention, of the reasonableness examine ascertain whether need to police if the house diligent police were particularly v. More- States See United they live there. stop of the as purpose accomplishing the Cir.1989) (9th (citing 247, no, 249 891 F.2d Here, Bakers state possible. rapidly 1, Ohio, U.S. Terry v. 392 both Summers twenty-five a total of about they were held (1968)). 1868, 889 20 L.Ed.2d 88 S.Ct. minutes, minutes outside ten about permissi “get is also down” The order Significantly, minutes long as fifteen inside. Terry following v. of cases the line ble under the door for “holler” out Armstrong did not 1868, 1, 20 L.Ed.2d Ohio, 88 S.Ct. 392 U.S. bring inside until the Bakers the others investigatory (1968), permit an which 889 “secured,” meaning house had been after the arrest, rising to the level stop, not gained control police had located and probable than less presenting situations in the house. people over cases, Terry the reason cause. Under “minute this took testified that touchstone, intrusion is ableness margin obviously a two,” there law offi balancing need of enforcement expect here; it would be absurd error affected citi against the burden cials to time their peril for their lives police in po considering the relation zens the uncer stop-watch. Given motions with stopping reason actions to his liceman’s happen until tainty over what Sharpe, v. suspect. See United States secured, surprising that it is not house was 1568, 1573-74, 682-83, 105 S.Ct. 470 U.S. begin sorting out who could (1985); United generally see L.Ed.2d ten minutes. After for the first was who Chaidez, 1197-98 F.2d States brought in apartment, denied, (7th Cir.), U.S. cert. Armstrong all esti Baker and Inez (1991); L.Ed.2d 1028 United elapsed before the minutes mated fifteen (1st Cir.), Trullo, States time part of that At least Bakers left. denied, 916, 107 S.Ct. 482 U.S. cert. delivering apol an up taken (1987). Here, ascer need to L.Ed.2d 679 to Mrs. Baker ogy and explanation *7 protect identity, need to tain the Bakers’ (Armstrong proba “It was said: detention. the need stray gunfire, and them from on explaining went bly what more time police to be approach clear area detaining the Baker minutes of that fifteen it efficiently made reason operate all able to else.”) Sharpe anything family than Under ground down on get Bakers able swiftly acting develop “police are a when Armstrong’s ini minutes. a few crucial indulge ... should ing court[s] situation the other offi “get down” and tial order to second-guessing.” 470 U.S. at in unrealistic Bakers down pushing actions cers’ say 686, 105 cannot 1575. We at a Fourth ground did not constitute identify time to fifteen minutes detention of violation, therefore Amendment people fairly large group of and release Town Armstrong himself or Monroe render drug raid is There during a unreasonable. ship liable. Bakers fore, Armstrong’s admission inside and fifteen minutes were detained
B. alone, outside, taken time amount of some Township him or Monroe does not render ques Second, closer we consider the liable. police the Bak detained tion of whether long time. unconstitutionally As an ers for C. down,” “get Armstrong with the order guns Third, consider the use we aware that he was admits concluded that district court handcuffs. The they be identified being until could detained
H93 depositions do ing weapon Bakers’ not indicate Arm- cooperative suspect, ordering strong personally guns handcuffs, or used prone, him to lie and handcuffing amount to anyone nor that he directed else to do so. arrest). Armstrong himself said that the use by This conclusion is out borne the record. of handcuffs would have been inappropriate Armstrong charge was the senior officer arrest, until there was an and that the other executing Corey the warrant. Baker testi- officers with him Here, work the way. same fied that as he doorstep, stood on the Arm- accepting the testimony, Bakers’ him, strong past Then, ran into the house. used all those intrusive methods without outside, family while the Baker was still oth- any reason to Bakers, feel threatened them, pointed guns pushed ers them down or to fear the Bakers escape. would It was ground and handcuffed them. Other dusk daylight but still Corey Mrs. police brought Cheryl Clementh Griffin and Jacquine, age both and Tiffany, age outside, Tiffany Woods but Baker could not 15, approached Considering say Armstrong came outside. After light facts most favorable to the the Bakers had been held outside for a few Bakers, appearances minutes, were those police brought of a them into the house. family visit, paying all They family Corey left social may but and while it in the kitchen. Police took into the bedroom have wayward son, been visit to a there is him, and searched specifically said simply no evidence of anything that should Armstrong was not involved in the search. have caused the officers use the kind of Mrs. Baker Armstrong said that she saw they alleged force are to have used. If Arm- the first time while inside the strong acquiesced in the other officers’ use of that he came into the kitchen and told the guns and handcuffs and if those actions were other officers to unhandcuff her and remove describe, such as the Bakers the testimony, gun pointed that was her. conflicting, while support a finding Baker said she saw never until violated the Bakers’ Fourth outside, they were after re- been rights. Amendment leaving. leased and were testimony No indi- cates participated personally in Although Armstrong personally did not handcuffing gun-point detention. use, use force or excessive order its we con- clude there per per-
There is no
sufficient evidence to
se rule that
pointing guns at people,
handcuffing them,
mit an
inference that
knew of and
See,
constitutes an
e.g.,
arrest.
United
acquiesced in the treatment the Bakers were
Hastamorir,
States v.
881 F.2d
1557 receiving at the hands of the other officers
(11th Cir.1989) (use of handcuffs
gun
acting
supervision.
under his
The Bakers
during investigatory stop); United
States
said they were handcuffed while outside.
Trullo,
(use
gun
ment.4
Moreover,
guns at them.
pointed
in which he was
or
Bakers
doorway from the room
open
approach
his
din-
expressed
kitchen or
the belief
he
speaking to Clementh
widely
These few
were.
shared
the Bakers
been
ing
have
room where
would
to allow a
facts,
are sufficient
to show that
together,
have failed
taken
police. The Bakers
Armstrong was aware
injuries.
infer that
factfinder
Township caused
Monroe
treated, but
being
Bakers were
how the
for
continue
treatment
permitted
D.
it.
stopped
he
of time before
amount
some
summary
at
satisfies
evidence
This
Corey Bak-
search of
Finally,
reach the
we
re
our cases
stage the standard
judgment
Corey
purse.
Baker’s
Mrs.
er and
liability,
is “actual
supervisory
quire for
a
room and
into
back
was taken
said
Rode v. Del
acquiescence.”
knowledge and
me,
“They
took
searched
He said:
searched.
Andrews,
1207;
F.2d at
larciprete, 845
all
pocket and went
back
my
out of the
wallet
knowl
that actual
believe
1478.5 We
F.2d at
my
it,
me take off
made
through
and
oth
circumstances
from
can
inferred
edge
inside,
my
checked
shoes,
down
checked
case we think
this
sight.6 In
than actual
er
forced
he was
He said
and stuff.”
socks
from
knowledge could arise
the inference
went
off and
his shirt
take
outside
“hollering” instructions
Armstrong’s
Mrs. Baker said
pants pockets.
through his
holding the Bakers
were
to others who
emptied
and
“pocketbook was snatched
her
presence
and his
gunpoint;
and
handcuffs
still out-
while she was
ground”
out on
the Baker wom
apartment where
in a small
side.
in one room and
being held
en
protracted search
undergoing a
Baker was
said,
con
the actions
sum,
As we have
sufficient
another.
warrant was
request
for sum
the search
the Bakers while
defendants’
trol
to withstand
Michigan v.
justified under
mary judgment.
executed
Corey’s
Terry. A search
Summers
have not shown
The
supported
not
persons is
Mrs. Baker’s
for Monroe
policymaker
was a
Supreme Court
of cases. The
by either line
any evi
not shown
Township, and
have
protec
recently reiterated
when
has
regard
Township practices
dence Monroe
weapons
beyond
for
goes
a search
search
tive
at the site of
handcuffing people
ing
found
evidence, it is
no
a search
becomes
Their ac
guns at them.
pointing
v.
Terry. Minnesota
valid under
longer
particular
in this
happened
of what
counts
—
—, —,
Dickerson,
113 S.Ct.
U.S.
usage.
custom or
do
establish
case
(1993).
H95 force, key with the use of excessive IV. As Arm- question about is whether the searches We reverse and remand trial strong Township responsi- and Monroe were issue of Armstrong acquiesced Armstrong that denies ble. (in alleged of use excessive force hand- subjected Terry-frisk. to a limited even cuffing pointing the Bakers and guns at Q: Were Mrs. Baker or her children sub- them) Corey Baker, and in the search of ject type body to of search while court district to consider whether they’re in the house? granted Baker should be leave to No, A: sir. amend her complaint under Rule 15. In all respects, affirm judgment we Q: it been that Would have routine district court. subject any type to have been pat-down search? ALITO, Judge, concurring Circuit dissenting. No, join I, II,
A: sir. I parts IIIA, and IIIB of the opinion cannot, however, join the court. Q: Would it have been routine for the HID, parts IIIC and which reverse the securing to them have summary judgment award of in favor of poeketbooks? searched their Township Monroe Police Officer Robert No, A: sir. Armstrong respect plaintiffs’ with However, handcuffing as with the claims regarding Corey search of Baker guns, use of we conclude that there is a alleged and the use of during excessive force testimony Armstrong’s conflict as to view, In my Bakers’ detention. a careful knowledge Corey about the search of Baker. analysis applicable law and the sum- through testified that took him mary judgment record reveals that the dis- living the kitchen and the room to the first summary judgment trict court’s award bedroom, where searched him for five to respect these with claims should be af- wallet, through ten minutes. went his Police firmed. shirt, him his made take off shoes and Armstrong’s pres his checked socks. mere I. apartment ence this small where 1, 1990, Armstrong applied On June undergoing protracted was for a this apartment an “no-knock” warrant to search permit an that was sufficient inference Williamstown, Jersey, New “and evidentiary was aware search. There App. fore, support found therein.” entering the district 248-51. court erred sum application, this Armstrong submitted an mary judgment Armstrong this on claim. 24, 1990, stating: May affidavit on hand, On the other search of Cheryl confidential informant told him outside, pocketbook Mrs. Baker’s occurred (later boyfriend, and her “Clem” iden- Woods securing while was inside Griffin), son tified Inez Baker’s Clementh We not believe do distributing apart- cocaine from search, can be held accountable for this for ment; May on sent a support does not evidence the inference apartment confidential informant into the happening knew what purchase make a controlled of cocaine from apartment. Consequently, Arm outside Cheryl Woods and the confidential infor- strong judgment on entitled Mrs. so; May mant did on concerned Baker’s search claim. citizen informed that “numerous handcuffing guns, juveniles” young going As and use of been adults and cocaine; Township purchase see no that Monroe into the we expressly tacitly May Armstrong authorized either conducted short Therefore, searches. there can no liabili- and observed surveillance of the ty Township. young people entering leaving apart- as to the *10 guns at them. pointed and ground, expe- on the that, Armstrong’s manner ment in addition, Inez Bak 120-23, 131-32. In Id. at drug distribution
rience, indicative was her took these officers that one of stated er was Armstrong’s application activity. Id. ground, emptied its purse, contents “no-knock” issued the court granted, and in the contents, put them back the examined at 147. Id. warrant. to her. purse the then returned purse, and evening, Arm- that p.m. 8:25 At about at 117. Id. his di- of officers strong and a team the and that she Baker estimated Inez 63, 95. Id. at warrant. the executed rection outside accompanying her remained children officers the other Armstrong identified at minutes. Id. ten for about apartment the T. Wat- and Lieutenant R. Ferris Sergeant Armstrong that evidence is no 366. There County Prosecutor’s the Gloucester son of any at apartment the present outside was Donnelly and J. K. Agents Special and Office any is there period. Nor during this time Drug Enforcement the federal Vitaletti the out at Armstrong looked Upon arriving at 59-60. Id. Administration. held, he were the Bakers area where quickly left the apartment, officers at the Bakers from the able to see have been door the ran and toward van their unmarked through any door or apartment the inside 46, At at 62-64. Id. guns drawn. their with window, communications that he had arrived, when officers the time precisely officers any of the period with during this or near were in this case plaintiffs were outside. who Baker, age apartment. steps of 15, Baker, age 17, steps. remained outside was on the Bakers While steps, bottom officers him at the apartment, behind was sister, Jacquine older her secured followed had entered who (col- mother, Anderson, Inez Cheryl and Clementh Woods occupants, its Bakers”). 62, 65, 98, 115-16, at Accord- Id. 122. lectively “the Id. at Griffin. officers first of the out the shouted Armstrong, then ing 129. he door of Id. at 98. people van reach in.” bring those leave door “to kitchen, stated that brought at 65-66. He apartment. Id. into the were The Bakers through not tell Bakers he could room when he saw the first reached which was leaving arriving 71, 84, at or they were at 124-26. door. Id. they who had no idea and that he when they were handcuffed Bakers said might be with Inez apartment, their connection what into the were or led were 78-79, He pointed added at 85. apartment. Id. one the officers Baker said 112-14, one of them not know whether time. Id. at during gun he at her thought he Cheryl However, and that Bakers might none of Woods 132. possibly be armed. might when of them in the kitchen that one said that neared the As brought 79. Id. at 113. Id. at in. were get down. Bakers, through for them to taken he shouted that he was Baker stated past and en- ran them living at 62. He bedroom. Id. then first kitchen and room 62, 66, 131. There, said, Id. at officers tered the several he Id. (not subjected him to a Armstrong) including outside the happened next what Some of him to they returned thorough search before deposition, dispute. his is in Id. at 134-35. the kitchen. two the officers stated that after the Armstrong stated Id. at 77. outside Bakers. remained kitchen, in, went to the brought agreed he the Bakers depositions, In their why explained she to Inez (not Armstrong) spoke including re- officers some had been accompanying her and the children outside, estimated the Bakers mained At this Id. at 68-69. get down. ordered to participated in many as 20 that as said, who the did not know point, he still 119, 123, he 131. The Id. the raid. then Id. He stated that Bakers were. officers who some Bakers stated that speaking with and was room (none apparently went another of whom outside remained something he heard them, Clementh Griffin when kept them deposed) handcuffed
H97 saying. that Inez Baker was Id. at 69. Ac- hicle described below.” Id. Paragraph 4 cording Armstrong, Sergeant he asked stated:
Ferris who Inez Baker was and was told that following The description (x) is a she Clementh mother. (x) Griffin’s Id. premises, (x) person, vehicle to be Armstrong stated that he asked Clementh searched: Griffin whether his mother and the other an apartment located in an “anything Bakers had to do with may what building at 607 Street, South Main house,” be found in [the] and Griffin an- Williamstown, (S) Jersey, New a three sto- swered “no.” Armstrong Id. said that he ry wood residence located on the frame kitchen, then went back to explained comer South Main Street Virginia and of occurred, Baker apologized Inez what had for Avenue, having a parking Virgi- lot on the inconvenience, and told her that she and nia Avenue side directly across the (other Griffin) her children than Clementh street the Williamstown Fire Compa- from go. were free to Similarly, Id. Inez Baker ny. that, said after she and the children accom- Id. panying kept her had been in the kitchen for mind, by To my far the interpretation best time, Armstrong some came out of another provisions these of the warrant is that room and said that should released. of, authorized a search only Id. at 114. She Armstrong both estimat- premises apartment, any per- but also ed that about 15 elapsed minutes had then sons found premises. That judge from the time brought when she had been signed who the warrant intended to authorize into Id. at 115. person search some persons seems clear, perfectly said space that he since the “per- never saw Inez for son(s)” (He paragraph space handcuffs. and the appear does not “person” in paragraph have been asked whether ever saw both marked (Are handcuffs.) with x’s. we to other Bakers in assume that both these also mistakes?) x’s were only stated that he guns pointed remaining never saw any question, then, identity is person the Bakers. Id. at 70.
or persons searched, who were to be if even we only look at paragraph II. question answer to this reasonably seems Search Baker. Summary judg- plain. paragraph 4 Since is supposed to properly ment was entered in favor of Arm- “premises,” “person[s],” describe and “vehi- strong on this claim separate for two rea- ele[s],” expressly prem- refers to the sons. apartment, ises of the the most reasonable interpretation is that the warrant authorized First, A. the terms of the search warrant premises search of the persons or (which doom claim. The warrant is re- vehicles premises. found produced in full as an appendix opin- to this ion) printed consisted aof form with type- interpretation This is by para- reinforced written (possibly entries prior graphs made one two of the warrant and the submission of application to the judge) application. noted, warrant previously As and handwritten (apparently entries made applied for authorization to judge).1 Paragraph one premises recited that “and applied “for a search warrant found therein.” Id. at 251. Para- (x) (x) (x) premises person graph warrant, vehicle one of the paraphrased which App. described below.” at 147. Paragraph Armstrong’s terms of application, stated two commanded and other applied offi- that he had “for search warrant for (x) “to search premises (x) cers (x) described person(s) [and] ... (a;) person(s) (x) below Thus, described below ve- below.” para- described Id. at 147. In the from the quotations warrant text appear underlined. typewritten regular below, text is in printed type, *12 on found any persons to search thorization “per phrase clearly equated the one
graph authorize to instead decided premises, the “persons phrase the with therein” found sons (although such individuals of named then search Paragraph two below.” ... described sought), and then had not been “(x) authorization premises the a search authorized individuals that these forgot to ensure below.” (x) ... person(s) described [and] interpreta- This warrant. the identified in authorized two paragraph Consequently, Id. only common-sense one, tion, being “the far from paragraph what, according to precisely warrant, to me seems the interpretation” permission sought —and far-fetched. persons found “and premises the to search Id. at 251. therein.” of the interpretation advancing this After reasons, that the war- if the I believe warrant, majority For these contends the any persons the a search authorize interpreted authorized rant warrant interpretation This premises. persons it would or any person found search language of the particularity all of the consistent Amendment’s is the Fourth violate harmon- to and warrant, gives effect noting and it that the warrant After requirement.2 I ac- provisions. per- person of the warrant’s any particular izes all did not name course, have been that it would knowledge, of sons, majority continues: the specif- referred draftsmanship to have better description language in Nor did on found persons 4 to ically paragraph “persons any or all place and to a refer purposes practical for premises, before the warrants as did found therein” was authorized scope search 337], N.J. [75 v. Sims in State the courts quite apparent. to me seems (N.J.1978) and State 642 A.2d interpretation is alternative majority’s 319], The A.2d N.J. [60 DeSimone majority The unpersuasive. completely re- (N.J.1972). Amendment The Fourth writes: de- particularly the warrant quires that interpretation of and the common-sense place to be searched
[T]he
scribe
ever bothered
that no one
face of
is
[warrant]
to be seized.
persons
persons
specified
include
complete it to
to meet
failures
demonstrates its
warrant
flawed docu-
premises. This
Amend-
as
Fourth
requirement
as well
magis-
that the
demonstrate
ment does not
ment.
any particular
search of
trate determined
sup-
wrong and is
argument is
This
Id.
justified.
person to be
Sims, 75 N.J.
State
ported
either
From this
n. 1.
Maj.
at 1188
typescript
(1978),
De
or State v.
A.2d
majority
it that
be-
I take
paragraph,
Simone,
A.2d
N.J.
judge
municipal
intended to
that the
lieves
(1972).
persons but
of named
a search
authorize
legal prin-
application
Sims involved
of these
names
to ensure
neglected
There, the
in De Simone.
ciples articulated
warrant.
included in the
How-
persons were
ar-
rejected the
Supreme Court
Jersey
New
assump-
ever,
requires the
interpretation
this
authorizing a search
gument
a warrant
judge
basic
made
serious
tion that
found on described
persons
of all
Moreover,
is com-
interpretation
error.
particulari-
Fourth Amendment’s
violated the
search warrant
with the
pletely inconsistent
court, Chief
Writing
ty requirement.
request
authoriza-
application, which
observed:
Weintraub
Justice
but,
in-
any named
to search
tion
Amendment
to the
“any
regard
Fourth
per- With
stead,
sought permission
search
subject to
to the
Thus,
specificity demand for
premises.
order
found”
sons
searched,
of the vice of
is none
there
interpretation, one
majority’s
accept
individual is thus
if the
general
issued the
warrant
judge who
must assume
ongoing
by physical nexus
request for
identified
Armstrong’s
au-
rejected
warrant
per-
course,
and the
Amendment,
describing
place to be
searched
provides
2. The Fourth
added).
(emphasis
“sup-
things
unless
shall not be issued
to be seized”
warrants
sons or
that
ported by
affirmation,
particularly
Oath
H99
setting,
criminal event itself.
such a
Rather,
to whom the warrant applies.
executing
the officer
the warrant has nei-
question is whether
is
par-
there
sufficient
authority
opportunity
ther the
nor the
ticularity
probable
sense,
cause
everywhere
anyone violating
is,
whether the
supplied
information
long
good
law. So
is
reason to
there
magistrate supports the conclusion that it
suspect
anyone present
or believe that
probable anyone
place
the described
anticipated
probably
scene will
be a
when the warrant is executed is
involved
*13
participant, presence
descrip-
becomes the
activity
the criminal
in
way
such a
as to
satisfying
fact
tive
the aim of the Fourth
have evidence thereof
person.
on his
If
general
Amendment. The evil of the
war-
the evidence
magistrate
tendered to the
thereby negated.
rant is
To insist none-
supports
conclusion,
such a
then the
that
theless
the individual be otherwise
search-all-persons-present
warrant
is
described
per-
when
will not
circumstances
unobjectionable.
If the evidence does not
it,
simply deny government
mit
a
support
conclusion,
such a
then the
power
crime,
needed
to deal with
without
present
justifica-
searches
those
find no
advancing the
the
interest
Amendment
tion in the search warrant.
was meant to serve.
Wayne
LaFave,
R.
Search and Seizure
288 A.2d
(1987) (footnotes
§
omitted).
4.5e at 231
“particularity”
Instead
a
presenting
I agree with De
and with
Simone
Profes-
question,
wrote,
Chief Justice Weintraub
a
analysis,
sor LaFave’s
I
and therefore think
authorizing a
any person
warrant
search
validity
that
of the
warrant
issue in
premises presents
found on described
ques-
a
depends
this case
on whether
the search
probable
tion
cause:
application
warrant
probable
established
principle,
sufficiency
On
of a warrant
persons
cause
believe that all
found on the
persons
only
to search
by
identified
premises
were
in
involved
presence
specified place
at a
should de-
regular drug
activity
going
that had been
pend upon
showing
the facts. A
that lot-
on at that
majority says
location. The
noth-
tery slips
department
are sold in a
store or
ing
respect
question,
to this
but
be-
plant
an industrial
obviously
jus-
would not
lieve
requisite
probable cause was
tify a warrant
every person
to search
on shown.
premises,
proba-
there would be no
Simone,
holdings
in
supra,
State v. De
ble cause to
everyone
believe that
there
Sims, supra,
and State v.
both of which seem
participating
was
illegal operation.
in the
correct,
me to
be
serve
frame the
hand,
On the other
showing
a
that a dice question presented by the warrant
involved
game
operated
is
in a manhole or in a barn
Simone,
here.
In
police
probable
De
had
suffice,
should
place
reason
particular
cause to believe that a
car was
is
illegal
so limited and the
operation so
regularly
drop
“policy”
used to
slips,
off
a
likely
everyone
overt that it is
present
was issued to
warrant
the car and “all
party
is a
to the
setting
offense. Such a
persons
therein,”
Jersey
found
and the New
furnishes
probable
cause but also Supreme
upheld
warrant,
Court
observ-
designation
persons
a
to be searched
ing
probable
that there was
cause to believe
functionally
which
precise
is as
as a dimen-
any person
found in the car “whether
portrait
sional
of them.
passenger
driver or
would be involved
Id.
operation.”
criminal
A.2d at 854.
analysis
This
specifically approved
is
in Sims,
contrast,
by
intercepted
the police
Professor LaFave’s treatise:
single telephone call to a service station
Unquestionably,
(Bob)
Quinlan,”
De Simone rationale
owned
“one Robert
is correct. A
during
search warrant
placed
authorization
this call
illegal
“[t]he
two
caller
persons
to search all
specifi-
person
found within a
identifying
horse bets with a
himself
cally
place
lacking
par-
described
as Bob.”
APPENDIX8 building Street, at 607 South Main Williamstown, (3) SUPERIOR COURT OF NEW Jersey, JERSEY New a three sto- ry wood frame residence located on the STATE OF NEW JERSEY corner of Main Virginia South Street and vs Avenue, having parking lot on Virgi- nia Avenue side directly across the Cheryl Woods street from the Compa- Williamstown Fire Defendant ny. SEARCH WARRANT (Time Special 5. Limitations, instructions etc.): To Detective Robert and/or any County officer of Gloucester Prosecutor’s Anytime day night knock —no Office, any officer of Jersey the New State Given and my issued under hand at 10 any Police or Depart- officer of Police m., June, o’clock day this First p jurisdiction: having ment SUR PETITION FOR PANEL REHEAR- being opened 1. This matter to the Court ING WITH SUGGESTION FOR RE- by Detective Robert of Monroe HEARING IN BANC Township, application for the issuance for 1,May (x) (x) a search warrant (x) below, vehicle described and the SLOVITER, Present: Judge, Chief (x) ( ) having Court reviewed the affidavit of BECKER, STAPLETON, MANSMANN, testimony under oath of the said Detective GREENBERG, HUTCHINSON, SCIRICA, being Robert satisfied there- COWEN, NYGAARD, ALITO, ROTH, *17 from that located therein or thereon are: LEWIS, McKEE, SAROKIN, and possession evidence of GIBSON,* and distribution of Judges. Circuit dangerous substances, controlled including, petition rehearing by Appel filed to, but not limited dangerous controlled lee, having judges been submitted to the who relating paraphernalia, substances and rec- participated in the decision of this Court and ords, relating documents and other items to all judges the other available circuit possession and distribution of con- service, judge active and no who concurred substances, dangerous trolled having the decision rehearing, asked for probable and that cause exists for the issu- majority judges of the circuit of the circuit ance such warrant: regular having active service not voted for 2. YOU ARE HEREBY COMMANDED banc, rehearing court in petition (x) to search described below rehearing is DENIED. (x) (x) person(s) described below vehicle de- copy scribed below and to serve a of this person
warrant on such person or on the
charge or control premises; of such regular type. Typewritten
8. Printed text is panel rehearing only. *As to text is underlined. Handwritten text is italicized.