http://vls.law.villanova.edu/locator/3d/March2004/024532p.pdf"Four police officers appeal from the
denial of qualified immunity in a lawsuit
alleging the unlawful search of occupants
of a residence in Schuylkill County,
Pennsylvania. The officers argue that they
did not violate clearly established federal
constitutional rights when they searched a
mother and her ten year old daughter in
the course of executing a search warrant
for narcotics at their home.
The appeal turns on the scope of
search authorized by the warrant. To
resolve this issue, we must consider under
what circumstances the scope of a warrant
may be expanded by looking to the
accompanying affidavit. We hold it to be
clearly established that unless a search
warrant specifically incorporates an
affidavit, the scope of the warrant may not
be broadened by language in that affidavit.
We also conclude that, under any
reasonable reading, the warrant in this
case did not authorize the search of the
mother and daughter, and that the search
was not otherwise justified. Accordingly,
we will affirm the District Court’s
determination that the officers are not
entitled to qualified immunity.
I.
On March 6, 1998, as the result of
a long-term investigation of John Doe for
suspected narcotics dealing, officers of the
Schuylkill County Drug Task Force
(“Task Force”) sought a search warrant for
Doe and his residence.1 The typed
affidavit in support of the warrant
application stated, in pertinent part, that a
reliable confidential informant had
purchased methamphetamine on several
occasions from John Doe, at Doe’s
“residence/office,” or from a Volkswagen
automobile parked in front. In addition,
the affidavit noted that individuals with
histories of prior narcotics use or with
drug gang affiliations had been observed
by Task Force members entering or
leaving John Doe’s residence. Finally, the
affidavit indicated that the most recent
methamphetamine purchase by the
informant had occurred within the
preceding 48 hours."
And, read this:
" A search warrant
for a premises does not constitute a license
to search everyone inside. Ybarra v.
Illinois, 444 U.S. 85 (1979). The record
does not disclose any independent basis to
suspect Jane Doe—let alone 10-year old
Mary Doe—of drug activity. "
Defeat Alito !
