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In re Video Depot/Opinion of the Court

[p1196] OPINION

D.W. NELSON, Circuit Judge:

Kenneth Schafer, the trustee of Video Depot, Ltd., brings this fraudulent conveyance action to recover the proceeds of a cashier's check purchased by Video Depot and paid to the Las Vegas Hilton in partial satisfaction of gambling debts incurred by Jeffrey Arlynn, Video Depot's principal. Hilton appeals the district court's decision affirming the bankruptcy court's judgment in favor of the trustee. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND
Most of the relevant facts are not in dispute. Jeffrey Arlynn was the president of Video Depot, a consumer electronics company. Arlynn controlled virtually all of Video Depot's operations.

Arlynn was also an active gambler. Between 1985 and 1990, he made approximately 60 trips to the Las Vegas Hilton. Initially, Arlynn gambled on funds he brought with him, or against credit that Hilton extended to him for the duration of each individual trip. In 1987, however, Arlynn obtained a permanent [p1197]  line of credit with Hilton in the amount of $ 50,000, which was increased to $ 75,000 in 1990.

Prior to 1990, Arlynn regularly repaid his losses in full either at the end of each stay or at the beginning of the next trip. While he occasionally retained a balance, the balance was always substantially less than his credit limit. In addition, Arlynn carefully controlled the size of his accumulated credit losses. Until 1990, Arlynn's balance only twice exceeded $ 100,000 and never exceeded $ 125,000.

In early May of 1990, however, Arlynn incurred a debt of $ 225,000, and he did not make a payment towards this debt before he left Las Vegas. On June 15, Video Depot purchased a cashier's check payable to Hilton in the amount of $ 65,000. The check clearly indicated that Video Depot was the purchaser. When Arlynn returned to Las Vegas on June 16, he gave two checks to Hilton: the $ 65,000 cashier's check from Video Depot, and a personal cashier's check in the amount of $ 10,000. Arlynn had never before presented either a cashier's check or a check purchased by Video Depot to cover his gambling losses.

Video Depot commenced bankruptcy proceedings on September 14, 1990, and the trustee was appointed shortly thereafter. The trustee then filed suit against Hilton to recover the proceeds of the $ 65,000 cashier's check. After an initial round of litigation, both parties stipulated that the check was a fraudulent transfer within the meaning of 11 U.S.C. § 548, and the bankruptcy court proceeded to determine whether Hilton was an initial transferee under 11 U.S.C. § 550(a) or a subsequent transferee lacking good faith knowledge of the voidability of the transfer within the meaning of 11 U.S.C. § 550(b).

Before trial, the bankruptcy court partially granted Hilton's motion for summary judgment, determining that Hilton was not the initial transferee. Trial was held on Hilton's asserted section 550(b) defense. The court thereafter determined that cause existed to reconsider its oral grant of summary judgment. In a letter to the parties, the bankruptcy judge requested supplemental briefing on the initial transferee issue "to the extent counsel feel it is necessary." The judge also inquired whether either side felt it necessary to introduce additional evidence if the court reopened the initial transferee issue. Both parties declined to submit additional evidence.

The bankruptcy court determined that Hilton was the debtor's initial transferee and therefore was strictly liable to the bankruptcy estate under 11 U.S.C. § 550(a)(1). The court also determined that, even if it were a subsequent transferee, Hilton had failed to establish a defense under 11 U.S.C. § 550(b). The district court affirmed on the ground that Hilton was an initial transferee and consequently did not consider the section 550(b) issue. Hilton now appeals on both grounds.

STANDARD OF REVIEW
In an appeal of a district court decision reviewing a decision of the bankruptcy court, this court does not defer to the district court. Friedkin v. Sternberg, (In re Sternberg), 85 F.3d 1400, 1404 (9th Cir. 1996). We review the bankruptcy court's conclusions of law de novo and must uphold its findings of fact unless they are clearly erroneous. Feder v. Lazar (In re Lazar) 83 F.3d 306, 308 (9th Cir. 1996).

ANALYSIS
The central issue before us is whether Hilton was the initial transferee of the $ 65,000 cashier's check purchased by Video Depot.

The Statutory Scheme
The parties have stipulated that the $ 65,000 payment to Hilton was a fraudulent transfer within the meaning of 11 U.S.C. § 548. Once a transfer has been determined to be voidable as a fraudulent conveyance under section 548, the trustee of the debtor may recover it from either
 * (1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or

 * (2) any immediate or mediate transferee of such initial transferee.

11 U.S.C. § 550(a). The distinction between the two, however, is a critical one. The trustee's right to recover from an initial [p1198]  transferee is absolute. See Danning v. Miller (In re Bullion Reserve), 922 F.2d 544, 547 (9th Cir. 1991). On the other hand, the trustee may not recover from a subsequent transferee if the subsequent transferee accepted the transfer for value, in good faith, and without knowledge of the transfer's voidability. 11 U.S.C. § 550(b). Subsequent transferees therefore have a defense unavailable to initial transferees.

The purpose of this scheme is to protect creditors "from last-minute diminutions of the pool of assets in which they have interests," while at the same time to guard against "the waste that would be created if people either had to inquire how their transferors obtained their property or to accept a risk that a commercial deal would be reversed for no reason they could perceive at the time." ''Bonded Fin. Servs., Inc. v. European American Bank,'' 838 F.2d 890, 892 (7th Cir. 1988). Section 550 balances these two goals by imposing on the initial transferee the "burden of inquiry and the risk if the conveyance is fraudulent." Id. While the initial transferee is in the best position to monitor the transaction, "subsequent transferees usually do not know where the assets came from and would be ineffectual monitors if they did." Id. at 892-93.

In this case, the bankruptcy court determined, and the district court agreed, that Hilton was the initial transferee. On appeal, Hilton makes two arguments to the contrary. First, Hilton contends that Arlynn, not Hilton, was the initial transferee because Arlynn controlled Video Depot and directed that the funds be transferred to Hilton. Alternatively, Hilton argues that Arlynn was the initial transferee because Video Depot's ledger appears to indicate that the cashier's check was a "loan" to Arlynn. We address each of these arguments in turn.

I. Arlynn's Control over Video Depot
While the Bankruptcy Code does not define "transferee," it is widely accepted that a transferee is one who, at a minimum, has "'dominion over the money or other asset, the right to put the money to one's own purposes.'" In re Bullion, 922 F.2d at 548 (quoting Bonded Fin. Servs., 838 F.2d at 893). The bankruptcy court determined that Arlynn did not have dominion over the $ 65,000. The court reasoned that although Arlynn controlled Video Depot's operations and arranged for the check to be issued, the check was a direct transfer from Video Depot to Hilton. Once the check was issued, Arlynn no longer had legal control over the funds, even if he retained physical control over them. Arlynn therefore did not have the right to use the money for any other purpose than to give it to Hilton. Hilton maintains that Arlynn had dominion over the $ 65,000 because he was Video Depot's principal and, in that capacity, directed Video Depot to purchase the cashier's check.

The bankruptcy courts are split on the question of whether the principal of a debtor corporation necessarily is the initial transferee of corporate funds used to satisfy a personal obligation. Compare General Electric Capital Auto Lease, Inc. v. Broach (In re Lucas Dallas, Inc.), 185 B.R. 801, 809 (9th Cir. BAP 1995) (holding that "the principal of a corporate debtor does not become a 'transferee' by the mere act of causing the debtor [to] make a fraudulent transfer"); Richardson v. FDIC (In re M. Blackburn Mitchell Inc.), 164 B.R. 117, 127 (Bankr. N.D. Cal. 1994) (holding that principal who caused debtor to issue cashier's check to satisfy personal obligation was not initial transferee); with Ross v. United States (In re Auto-Pak, Inc.), 73 B.R. 52, 54 (D.D.C. 1987) (concluding that principal of corporation was initial transferee when principal arranged for corporation's purchase of cashier's check to satisfy financial obligations independent of corporation); Still v. American Nat'l Bank & Trust Co. (In re Jorges Carpet Mills, Inc.), 50 B.R. 84, 85 (Bankr. E.D. Tenn. 1985) (same); see also Robinson v. Home Savings of America (In re Concord Senior Housing Foundation), 94 B.R. 180, 183 (Bankr. C.D. Cal. 1988) (holding that agent of corporation who used corporate funds to secure personal loan was initial transferee). Hilton urges us to reject the rule set forth in Lucas Dallas and Mitchell and instead to follow the Auto-Pak line of cases.

Although the Ninth Circuit has not squarely addressed this issue, all of the circuit courts that have considered it have adopted the same approach as the Lucas Dallas and [p1199]  Mitchell courts. In Nordberg v. Arab Banking Corp. (In re Chase & Sanborn Corp.), 904 F.2d 588 (11th Cir. 1990), on which the bankruptcy court in the present case relied, the Eleventh Circuit held that a bank was the initial transferee of loan payments made by a corporation even though the corporation's principal directed the transfer and the loan was the principal's private debt. Id. at 599-600. The court determined that "the extent of [the principal's] control over [the corporation] generally, and over [the corporation's] actions in transferring the disputed funds to [the bank] in particular, is entirely irrelevant to the 'initial transferee' issue." Id. at 598.

Since the bankruptcy court's decision, two other circuits, citing Lucas Dallas and the district court's opinion in this case, also have concluded that a principal who directs a debtor corporation to issue a certified check to pay for a personal debt is not an initial transferee. See Bowers v. Atlanta Motor Speedway, Inc. (In re Southeast Hotel Properties Limited Partnership), 99 F.3d 151 (4th Cir. 1996); Rupp v. Markgraf, 95 F.3d 936 (10th Cir. 1996). These courts have held that a principal or agent does not have "dominion and control" over funds unless he or she has "legal dominion and control," in other words, the "right to put those funds to one's own purpose." Bowers, 99 F.3d at 155 (emphasis in original); see also Rupp, 95 F.3d at 941. The mere power of a principal to direct the allocation of corporate resources does not amount to legal dominion and control:

"Many principals presumably exercise de facto control over the funds of the corporations they manage. They can choose to cause their corporations to use those funds appropriately or inappropriately. The distinction is only relevant to the question whether the principal's conduct amounted to a breach of duty to the corporation."

Bowers, 99 F.3d at 156 (citing Rupp, 95 F.3d at 941).

Other circuit courts have held that a principal may establish legal control and dominion by first directing a transfer into his or her personal bank account and then making the payment from his personal account to the creditor. Rupp, 95 F.3d at 939 (citing Bonded Fin. Servs., 838 F.2d at 892). In the present case, however, Video Depot purchased a cashier's check payable to Hilton, with Video Depot listed as the purchaser. Legal control over the funds consequently passed directly from Video Depot to Hilton.

Hilton contends that this view elevates form over substance. Whether Video Depot, at Arlynn's direction, purchased a cashier's check payable directly to Hilton or, instead, issued the funds to Arlynn, enabling him then to write a personal check for the sum, there is, so the argument goes, the same result - that Arlynn used corporate funds to satisfy a personal debt. What Hilton's argument fails to acknowledge, however, is the basic rationale for distinguishing in section 550 between initial and subsequent transferees. An initial transferee is exposed to stricter liability than a subsequent transferee because an initial transferee is in the best position to evaluate whether the conveyance is fraudulent. ''See Bonded Fin. Servs.,'' 838 F.2d at 892-93. Where, as here, a transferee receives funds directly from a debtor, the transferee's capacity to monitor - and, accordingly, its burden to monitor - is at its greatest. Thus, Hilton's receipt of a cashier's check clearly purchased by Video Depot subjects it to a burden of inquiry that it may not have had upon receipt of a check from Jeffrey Arlynn's personal account.

Moreover, the rule advocated by Hilton would have the anomalous result that every agent or principal of a corporation would be deemed the initial transferee when he or she effected a transfer of property in his or her representative capacity. See Bowers, 99 F.3d at 156. Such a rule "gives too much power to an unscrupulous insider to effect a fraudulent transfer . . . without allowing a trustee to have the means for avoiding the transfer for the benefit of the debtor's creditors." In re Mitchell, 164 B.R. at 128. While the Sixth Circuit has expressed tentative support for this approach, see IRS v. Nordic Village, Inc. (In re Nordic Village), 915 F.2d 1049 (6th Cir. 1990), rev'd on other grounds, 503 U.S. 30, 117 L. Ed. 2d 181, 112 S.C.t. 1011 (1992), no circuit court has based a decision on it, and we decline to depart from the considered judgment of the other circuits today. Thus, we conclude that [p1200]  Arlynn's control over the business operations of Video Depot does not, in itself, compel a finding that Arlynn had dominion and control over the funds transferred from Video Depot to Hilton.

II. Video Depot's "Loan" to Arlynn
Hilton next contends that the transfer of funds from Video Depot constituted a loan to Arlynn, giving Arlynn control over how the funds were spent and making him, not Hilton, the initial transferee. The bankruptcy court rejected this argument, citing insufficient evidence. Because we find nothing in the record to support a finding that Arylnn had dominion over the funds after they were disbursed by Video Depot, we agree with the bankruptcy court.

Hilton's argument rests on two documents that it submitted in support of its motion for summary judgment: excerpts from a ledger that appear to track payments by Video Depot on Arlynn's behalf and an affidavit from Arlynn. In the affidavit, Arlynn maintains:

"On or about June 15, 1990, I borrowed the sum of $ 65,000.00 from Video Depot and caused this loan transaction to be recorded in the records of the corporation. The $ 65,000.00 in corporate funds was used to purchase a cashier's check in the amount of $ 65,000 made payable to the Las Vegas Hilton in partial satisfaction of a debt I owed. . . . Prior to the commencement of involuntary bankruptcy proceedings against Video Depot, I repaid this specific loan to the corporation."

The ledger lists payments to Jeffrey Arlynn in the amount of $ 10,000 and $ 65,000 on June 15. On the credit side of the ledger, a $ 75,000 payment from Arlynn is shown.

Simply referring to the transfer as a "loan" in the company ledger does not suffice, however, to demonstrate that at any point in time Arlynn exercised independent control over the funds. So long as the money remained in Video Depot's account, Arlynn's legal right to it was circumscribed by his duties to the corporation and its creditors. Once the funds were disbursed, Arlynn could use them only to pay Hilton. Regardless of how Hilton chooses to characterize the transfer, Hilton has failed to explain how Video Depot's issuance of a check earmarked expressly for the purchase of a cashier's check to the Las Vegas Hilton gave Arlynn dominion over the funds.

Arlynn was a courier, not a transferee. Particularly in view of the fact that Arlynn, as principal of Video Depot, could direct that the transfer be called anything he pleased in the company ledger, we require more substantial evidence that he exercised independent control over the funds after they left Video Depot's account. The bankruptcy court gave Hilton ample opportunity to present such evidence, and Hilton failed to do so.

CONCLUSION
The bankruptcy court had adequate grounds for determining that Hilton was an initial transferee under section 550(a). Accordingly, we affirm the district court's decision affirming the bankruptcy court. Since we find Hilton to have been an initial transferee, we do not reach Hilton's section 550(b) argument.

AFFIRMED.

title: In re Video Depot/Opinion of the Court


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216 indeed partly to escape from the raw air that kept me coughing, but it was also part in play. As I ascended the mountain-side, I came once more to overlook the upper surface of the fog; but it wore a different appearance from what I had beheld at daybreak. For, first, the sun now fell on it from high overhead, and its surface shone and undulated like a great nor'land moor country, sheeted with untrodden morning snow. And next the new level must have been a thousand or fifteen hundred feet higher than the old, so that only five or six points of all the broken country below me, still stood out. Napa Valley was now one with Sonoma on the west. On the hither side, only a thin scattered fringe of bluffs was unsubmerged; and through all the gaps the fog was pouring over, like an ocean, into the blue clear sunny country on the east. There it was soon lost; for it fell instantly into the bottom of the valleys, following the water-shed; and the hilltops in that quarter were still clear cut upon the eastern sky. Through the Toll House gap and over the near ridges on the other side, the deluge was immense. A spray of thin vapour was thrown high above it, rising and falling, and blown into fantastic shapes. The speed of its course was like a mountain torrent. Here and there a few treetops were discovered and then whelmed again; and for one second, the bough

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text:
Author:George Robert Parkin

Works

 * (History from Federation)
 * (Rhodes Scholarships)

title: Author:George Robert Parkin


text: Lyrics of Life (1909)/Affinity

title: Lyrics of Life (1909)/Affinity


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Rh of a dead pine beckoned out of the spray like the arm of a drowning man. But still the imagination was dissatisfied, still the ear waited for something more. Had this indeed been water (as it seemed so, to the eye), with what a plunge of reverberating thunder would it have rolled upon its course, disembowelling mountains and deracinating pines! And yet water it was, and sea-water at that—true Pacific billows, only somewhat rarefied, rolling in mid-air among the hilltops. I climbed still higher, among the red rattling gravel and dwarf underwood of Mount Saint Helena, until I could look right down upon Silverado, and admire the favoured nook in which it lay. The sunny plain of fog was several hundred feet higher; behind the protecting spur a gigantic accumulation of cottony vapour threatened, with every second, to blow over and submerge our homestead; but the vortex setting past the Toll House was too strong; and there lay our little platform, in the arms of the deluge, but still enjoying its unbroken sunshine. About eleven, however, thin spray came flying over the friendly buttress, and I began to think the fog had hunted out its Jonah after all. But it was the last effort. The wind veered while we were at dinner, and began to blow squally from the mountain summit; and by half-past one, all that world of sea-fogs was utterly


text: Lyrics of Life (1909)/Conflict and Rest

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218 routed and flying here and there into the south in little rags of cloud. And instead of a lone sea-beach, we found ourselves once more inhabiting a high mountain-side, with the clear green country far below us, and the light smoke of Calistoga blowing in the air. This was the great Russian campaign for that season. Now and then, in the early morning, a little white lakelet of fog would be seen far down in Napa Valley; but the heights were not again assailed, nor was the surrounding world again shut off from Silverado.


text: Lyrics of Life (1909)/Dearth

title: Lyrics of Life (1909)/Dearth


text: Lyrics of Life (1909)/Mid-Ocean

title: Lyrics of Life (1909)/Mid-Ocean


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HE Toll House, standing alone by the wayside under nodding pines, with its streamlet and water-tank; its backwoods, toll-bar, and well-trodden croquet ground; the ostler standing by the stable door, chewing a straw; a glimpse of the Chinese cook in the back parts; and Mr. Hoddy in the bar, gravely alert and serviceable, and equally anxious to lend or borrow books;—dozed all day in the dusty sunshine, more than half asleep. There were no neighbours, except the Hansons up the hill. The traffic on the road was infinitesimal; only, at rare intervals, a couple in a waggon, or a dusty farmer on a spring-board, toiling over "the grade" to that metropolitan hamlet, Calistoga; and, at the fixed hours, the passage of the stages. The nearest building was the schoolhouse, down the road; and the school-ma'am boarded at the Toll House, walking thence in the morning to the little brown shanty, where she taught the young ones of the district, and returning thither pretty weary in the afternoon. She had chosen this


text: Lyrics of Life (1909)/On the Death of Lady Curzon


text: Lyrics of Life (1909)/Bereft

title: Lyrics of Life (1909)/Bereft


text: Dictionary of National Biography, 1885-1900/Guest, Edmund


text: Dictionary of National Biography, 1885-1900/Guest, Edwin


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text: Lyrics of Life (1909)/The Martyr Jews

title: Lyrics of Life (1909)/The Martyr Jews


text: Lyrics of Life (1909)/Le Grand Salut

title: Lyrics of Life (1909)/Le Grand Salut


text: Lyrics of Life (1909)/Inheritor

title: Lyrics of Life (1909)/Inheritor


text: Lyrics of Life (1909)/When You Came

title: Lyrics of Life (1909)/When You Came


text: Lyrics of Life (1909)/Song : "Love Never Is Too Late"


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220 situation, I understood, for her health. Mr. Corwin was consumptive; so was Rufe; so was Mr. Jennings, the engineer. In short, the place was a kind of small Davos: consumptive folk consorting on a hilltop in the most unbroken idleness. Jennings never did anything that I could see, except now and then to fish, and generally to sit about in the bar and the veranda, waiting for something to happen. Corwin and Rufe did as little as possible; and if the school-ma'am, poor lady, had to work pretty hard all morning, she subsided when it was over into much the same dazed beatitude as all the rest. Her special corner was the parlour—a very genteel room, with Bible prints, a crayon portrait of Mrs. Corwin in the height of fashion, a few years ago, another of her son (Mr. Corwin was not represented), a mirror, and a selection of dried grasses. A large book was laid religiously on the table—"From Palace to Hovel," I believe, its name—full of the raciest experiences in England. The author had mingled freely with all classes, the nobility particularly meeting him with open arms; and I must say that traveller had ill requited his reception. His book, in short, was a capital instance of the Penny Messalina school of literature; and there arose from it, in that cool parlour, in that silent, wayside, mountain inn, a rank atmosphere


text: Lyrics of Life (1909)/The Christ of the Andes


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262 covered in a house, that, though the coming of the day is still the most inspiriting, yet day's departure, also, and the return of night refresh, renew, and quiet us; and in the pastures of the dusk we stand, like cattle, exulting in the absence of the load. Our nights were never cold, and they were always still, but for one remarkable exception. Regularly, about nine o'clock, a warm wind sprang up, and blew for ten minutes, or maybe a quarter of an hour, right down the cañon, fanning it well out, airing it as a mother airs the night nursery before the children sleep. As far as I could judge, in the clear darkness of the night, this wind was purely local: perhaps dependent on the configuration of the glen. At least, it was very welcome to the hot and weary squatters; and if we were not abed already, the springing up of this lilliputian valley-wind would often be our signal to retire. I was the last to go to bed, as I was still the first to rise. Many a night I have strolled about the platform, taking a bath of darkness before I slept. The rest would be in bed, and even from the forge I could hear them talking together from bunk to bunk. A single candle in the neck of a pint bottle was their only illumination; and yet the old cracked house seemed literally bursting with the light. It shone keen as a knife through all the vertical


text: Lyrics of Life (1909)/Echo Consolatrix

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260 blankets. There lives no more industrious creature than a bore.

And now that I have named to the reader all our animals and insects without exception—only I find I have forgotten the flies—he will be able to appreciate the singular privacy and silence of our days. It was not only man who was excluded: animals, the song of birds, the lowing of cattle, the bleating of sheep, clouds even, and the variations of the weather, were here also wanting; and as, day after day, the sky was one dome of blue, and the pines below us stood motionless in the still air, so the hours themselves were marked out from each other only by the series of our own affairs, and the sun's great period as he ranged westward through the heavens. The two birds cackled awhile in the early morning; all day the water tinkled in the shaft, the bores ground sawdust in the planking of our crazy palace—infinitesimal sounds; and it was only with the return of night that any change would fall on our surroundings, or the four crickets begin to flute together in the dark.

Indeed, it would be hard to exaggerate the pleasure that we took in the approach of evening. Our day was not very long, but it was very tiring. To trip along unsteady planks or wade among shifting stones, to go to and fro for water, to clamber down the glen to the Toll House after


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 Brandon a grant of the wardship of Elizabeth, daughter and sole heiress of John Grey, viscount Lisle (ib. 3561), of which he very soon took advantage in a rather questionable way, by making a contract of marriage with her; and next year, on 15 May, he was created Viscount Lisle, with succession to the heirs male of himself and Elizabeth Grey, viscountess Lisle, his wife, as she is called in the patent (ib. 4072). But in point of fact she was not his wife, for when she came of age she refused to marry him, and the patent was cancelled.

Other grants he continued to receive in abundance; stewardships of various lands in Warwickshire or in Wales, either temporarily or permanently in the hands of the crown (ib. 3841, 3880, 3920-1). But his first conspicuous actions were in the year 1513, when, under the title of Lord Lisle, he was appointed marshal of the army that went over to invade France. He took a prominent part in the operations against Terouenne, and at the siege of Tournay he first of all obtained possession of one of the city gates (ib. 4459). While before Terouenne he sent a message to Margaret of Savoy, the regent of the Netherlands, through her agent in the camp Philippe de Brégilles, who, in communicating it, said he was aware that Brandon was a second king, and he advised her to write to him a kind letter, 'for it is he,' wrote Brégilles, 'who does and undoes' (ib. 4405). Early in the following year (1514) the king determined to send him to Margaret to arrange about a new campaign (ib. 4736, 4831). On 1 Feb. he was created Duke of Suffolk, and, adorned with that new title, he went over to the Low Countries. On 4 March Henry VIII wrote to Margaret's father, the emperor Maximilian, that a report had reached England that Suffolk was to marry his daughter, at which the king affected to be extremely displeased. Henry pretended that the rumour had been got up to create differences between them. In point of fact Henry was not only fully cognisant of Suffolk's aspirations, but had already pleaded his favourite's cause with Margaret personally at Tournay; and this notwithstanding the engagement he was still under to Lady Lisle. Some curious flirtation scenes had actually taken place between them at Lille, of which Margaret seems afterwards to have drawn up a report in her own hand (ib. 4850-1).

In October following, immediately after the marriage of Louis XII to Henry VIII's sister Mary, Suffolk was sent over to France to witness the new queen's coronation at St. Denis, and to take part in the jousts to be held at Paris in honour of the event. This at least seemed to be the principal object of his mission, and as regards the tourney he certainly acquitted himself well, overthrowing his opponent, horse and man. But another object was to make some arrangements for a personal interview between the English and French kings in the following spring (ib. 5560), and also to convey a still more secret proposal for expelling Ferdinand of Arragon from Navarre (ib. 5637); both which projects were nipped in the bud by the death of Louis XII on 1 Jan. following.

When the news of this event reached England, it was determined at once to send an embassy to the young king, Francis I, who had just succeeded to the throne; and Suffolk, who had not long returned from France, was appointed the principal ambassador. They had a formal audience of the king at Noyon on 2 Feb., after which Francis sent for the duke to see him in private, and to his consternation said to him, 'My lord of Suffolk, there is a bruit in this my realm that you are come to marry with the queen, your master's sister.' Suffolk in vain attempted to deny the charge, for Francis had extracted the confession from Mary herself by what dishonourable overtures we need not inquire and Francis, to put him at his ease, promised to write to Henry in his favour. The truth was that Henry himself secretly favoured the project, and only wished for some such letter from Francis to make it more acceptable to the old nobility, who regarded Suffolk as an upstart. Wolsey, too, then at the commencement of his career as a statesman, was doing his best to smooth down all obstacles. But the precipitancy of the two lovers nearly forfeited all their advantages. Mary was by no means satisfied that, although Henry favoured her wishes to some extent, he might not be induced by his council to break faith with her and sacrifice her to political considerations again. Suffolk's discretion was not able to subdue his own ardour and hers as well, and they were secretly married at Paris.

So daring and presumptuous an act on the part of an upstart nobleman was not easily forgiven. Many of the king's council would have put Suffolk to death; the king himself was extremely displeased. But there was a way of mitigating the king's displeasure to some extent, and the king was satisfied in the end with the gift of Mary's plate and jewels and a bond of 24,000l. to repay by yearly instalments the expenses the king had incurred for her marriage with Louis. Suffolk and his wife the French queen as she was continually called lived for a time in comparative retirement as persons under a cloud; but after a while they were seen more


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Rh children in full health and spirits shout together, to the dismay of neighbours; and their idle, happy, deafening vociferations rise and fall, like the song of the crickets. I used to sit at night on the platform, and wonder why these creatures were so happy; and what was wrong with man that he also did not wind up his days with an hour or two of shouting; but I suspect that all long-lived animals are solemn. The dogs alone are hardly used by nature; and it seems a manifest injustice for poor Chuchu to die in his teens, after a life so shadowed and troubled, continually shaken with alarm, and the tear of elegant sentiment permanently in his eye. There was another neighbour of ours at Silverado, small but very active, a destructive fellow. This was a black, ugly fly—a bore, the Hansons called him—who lived by hundreds in the boarding of our house. He entered by a round hole, more neatly pierced than a man could do it with a gimlet, and he seems to have spent his life in cutting out the interior of the plank, but whether as a dwelling or a store-house, I could never find. When I used to lie in bed in the morning for a rest—we had no easy-chairs in Silverado—I would hear, hour after hour, the sharp cutting sound of his labours, and from time to time a dainty shower of sawdust would fall upon the


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258 And there was, or there had been, another animal. Once, under the broad daylight, on that open stony hillside, where the baby pines were growing, scarcely tall enough to be a badge for a MacGregor's bonnet, I came suddenly upon his innocent body, lying mummified by the dry air and sun: a pigmy kangaroo. I am ingloriously ignorant of these subjects; had never heard of such a beast; thought myself face to face with some incomparable sport of nature; and began to cherish hopes of immortality in science. Rarely have I been conscious of a stranger thrill than when I raised that singular creature from the stones, dry as a board, his innocent heart long quiet, and all warm with sunshine. His long hind legs were stiff, his tiny forepaws clutched upon his breast, as if to leap; his poor life cut short upon that mountain by some unknown accident. But the, it proved, was no such unknown animal; and my discovery was nothing. Crickets were not wanting. I thought I could make out exactly four of them, each with a corner of his own, who used to make night musical at Silverado. In the matter of voice, they far excelled the birds, and their ringing whistle sounded from rock to rock, calling and replying the same thing, as in a meaningless opera. Thus


text: Lyrics of Life (1909)/Privilege

title: Lyrics of Life (1909)/Privilege


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Rh Dwarf pines, not big enough to be Christmas trees, grew thinly among loose stone and gravel scaurs. Here and there a big boulder sat quiescent on a knoll, having paused there till the next rain in his long slide down the mountain. There was here no ambuscade for the snakes, you could see clearly where you trod; and yet the higher I went, the more abject and appealing became Chuchu's terror. He was an excellent master of that composite language in which dogs communicate with men, and he would assure me, on his honour, that there was some peril on the mountain; appeal to me, by all that I held holy, to turn back; and at length, finding all was in vain, and that I still persisted, ignorantly foolhardy, he would suddenly whip round and make a bee-line down the slope for Silverado, the gravel showering after him. What was he afraid of? There were admittedly brown bears and California lions on the mountain; and a grizzly visited Rufe's poultry yard not long before, to the unspeakable alarm of Caliban, who dashed out to chastise the intruder, and found himself, by moonlight, face to face with such a tartar. Something at least there must have been: some hairy, dangerous brute lodged permanently among the rocks a little to the north-west of Silverado, spending his summer thereabout, with wife and family.


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 Brandon a time surrendered, and the Duke of Suffolk rode into it in triumph.

Early next year (1545) he sat at Baynard's Castle in London on a commission for a 'benevolence' to meet the expenses of the king's wars in France and Scotland. On St. George's day he stood as second godfather to the infant Henry Wriothesley, afterwards Earl of Southampton, the father of Shakespeare's friend; but he was now near his end. On 24 Aug. he died at Guildford. In his will he had desired to be buried at Tattershall in Lincolnshire; but the king caused him to be buried at Windsor at his own charge.

 BRANDON, HENRY (1535–1551) and CHARLES (1537?–1551),, were the sons of , duke of Suffolk [q. v.], by his last wife, Katharine Willoughby. Henry was born on 18 Sept. 1535, and Charles, the younger, probably two years later. The date in the former case is fixed by the inquisitio post mortem held after the father's death (1545). Henry succeeded to the dukedom, and held it for nearly six years. Their mother seems to have been very careful of their education, and appointed Thomas Wilson, afterwards the celebrated Sir Thomas, secretary of state to Queen Elizabeth, their tutor. The elder, Henry, was then sent to be educated with Prince Edward, afterwards King Edward VI, by Sir John Cheke. In 1550 we find Henry named as a hostage on the peace with France (, xv. 214); but he does not seem to have been required to go thither. By this time he and his brother were pursuing their studies at St. John's College, Cambridge, from which place, after the sweating sickness broke out in July 1551, they were hastily removed to the bishop of Lincoln's palace at Buckden in Huntingdonshire; but there they both caught the infection and died in one day, 16 July. As the younger survived the elder for about half an hour, they were both considered to have been dukes of Suffolk; and their fate made a remarkable impression on the world at the time. They seem to have attained to a wonderful proficiency in learning, and a brief memoir of the two—a work now of extreme rarity—published the same year by their old tutor, Wilson, contains epistles, epitaphs, and other tributes to their praise from Walter Haddon and other learned men both of Cambridge and of Oxford. Of the elder it was said by Peter Martyr that he was the most promising youth of his day, except King Edward. Their portraits by Holbein were engraved by Bartolozzi.

 BRANDON, JOHN (fl. 1687), divine, son of Charles Brandon, a doctor of Maidenhead, was apparently born at Bray, near that town, about 1644. He entered Oriel College, Oxford, as a commoner on 15 Feb. 1661-2, and proceeded B.A. on 11 Nov. 1665. Wood says that 'he entertained for some time certain heterodox opinions, but afterwards being orthodox,' took holy orders. He became rector of Finchamstead, and for some years preached a weekly lecture on Tuesdays at Reading. He was the author of 'Τὸ πῦρ τὸ αἰώνιον, or Everlasting Fire no Fancy; being an answer to a late Pamphlet entit. "The Foundations of Hell-Torments shaken and removed,"' London, 1678. The book was dedicated to Henry, earl of Starlin, from 'Wargrave (Berks), 20 July 1676.' The pamphlet to which Brandon replied here was 'The Torments of Hell' (London, 1658), by an anabaptist, named Samuel Richardson. Nicholas Chewney had anticipated Brandon in answering the work in 1660. Brandon also published, besides a number of sermons, 'Happiness at Hand, or a plain and practical discourse of the Joy of just men's souls in the State of Separation from the Body,' London, 1687. This was dedicated to Dr. Robert Woodward, chancellor of the bishop of Salisbury's court.

 BRANDON, JOHN RAPHAEL (1817–1877), architect, and joint author with his brother, Joshua Arthur Brandon, of several architectural works, received his early professional training from Mr. W. Parkinson, architect, to whom he was articled in 1836. Although fairly successful in private practice, which he carried on along with his brother at Beaufort Buildings, Strand, the brothers Brandon are best known as authors. They were both ardent students of Gothic architecture, and directed their studies entirely to English examples. The result of their labours is a series of three works ably illustrative of the purest specimens of Early English ecclesiastical architecture. The most important of these is their work on 'Parish Churches' (Lond. 1848), which consists of a series of perspective views of sixty-three churches selected from most of the counties of England,


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256 stay, that a man down at Calistoga, who was expatiating on the terrifying nature of the sound, gave me at last a very good imitation; and it burst on me at once that we dwelt in the very metropolis of deadly snakes, and that the rattle was simply the commonest noise in Silverado. Immediately on our return, we attacked the Hansons on the subject. They had formerly assured us that our cañon was favoured, like Ireland, with an entire immunity from poisonous reptiles; but, with the perfect inconsequence of the natural man, they were no sooner found out than they went off at score in the contrary direction, and we were told that in no part of the world did rattlesnakes attain to such a monstrous bigness as among the warm, flower-dotted rocks of Silverado. This is a contribution rather to the natural history of the Hansons than to that of snakes.

One person, however, better served by his instinct, had known the rattle from the first; and that was Chuchu, the dog. No rational creature has ever led an existence more poisoned by terror than that dog's at Silverado. Every whiz of the rattle made him bound. His eyes rolled; he trembled; he would be often wet with sweat. One of our great mysteries was his terror of the mountain. A little away above our nook, the azaleas and almost all the vegetation ceased.


text: Lyrics of Life (1909)/A Little Song

title: Lyrics of Life (1909)/A Little Song


text: Lyrics of Life (1909)/The Empty House

title: Lyrics of Life (1909)/The Empty House


text: Lyrics of Life (1909)/Courage

title: Lyrics of Life (1909)/Courage


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254 bay-tree collect the ingredients of its perfume. But there they all grew together, healthy, happy, and happy-making, as though rooted in a fathom of black soil. Nor was it only vegetable life that prospered. We had, indeed, few birds, and none that had much of a voice or anything worthy to be called a song. My morning comrade had a thin chirp, unmusical and monotonous, but friendly and pleasant to hear. He had but one rival: a fellow with an ostentatious cry of near an octave descending, not one note of which properly followed another. This is the only bird I ever knew with a wrong ear; but there was something enthralling about his performance. You listened and listened, thinking each time he must surely get it right; but no, it was always wrong, and always wrong the same way. Yet he seemed proud of his song, delivered it with execution and a manner of his own, and was charming to his mate. A very incorrect, incessant human whistler had thus a chance of knowing how his own music pleased the world. Two great birds—eagles, we thought—dwelt at the top of the cañon, among the crags that were printed on the sky. Now and again, but very rarely, they wheeled high over our heads in silence, or with a distant, dying scream; and then, with a fresh impulse, winged fleetly forward,


text: Lyrics of Life (1909)/"Each and All"

title: Lyrics of Life (1909)/"Each and All"


text: Lyrics of Life (1909)/In Memory of Caroline Furness Jayne


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text: Lyrics of Life (1909)/Per Aspera

title: Lyrics of Life (1909)/Per Aspera


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text: Lyrics of Life (1909)/The Hermit

title: Lyrics of Life (1909)/The Hermit


text: Lyrics of Life (1909)/Poetry

title: Lyrics of Life (1909)/Poetry


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text:
Channel Firing

That night your great guns, unawares, Shook all our coffins as we lay, And broke the chancel window-squares, We thought it was the Judgment-day

And sat upright. While drearisome Arose the howl of wakened hounds: The mouse let fall the altar-crumb, The worms drew back into the mounds,

The glebe cow drooled. Till God called, 'No; It’s gunnery practise out at sea Just as before you went below; The world is as it used to be:

'And all nations striving strong to make Red war yet redder. Mad as hatters They do no more for Christés sake Than you who are helpless in such matters.

'That this is not the judgement-hour For some of them’s a blessed thing, For if it were they’d have to scour Hell’s floor for so much threatening...

'Ha, ha. It will be warmer when I blow the trumpet (if indeed I ever do; for you are men, And rest eternal sorely need).'

So down we lay again. 'I wonder, Will the world ever saner be,' Said one, ‘than when He sent us under In our indifferent century!'

And many a skeleton shook his head. 'Instead of preaching forty year,' My neighbour Parson Thirdly said, 'I wish I had stuck to pipes and beer.'

Again the guns disturbed the hour, Roaring their readiness to avenge, As far inland as Stourton Tower, And Camelot, and starlit Stonehenge.

title: Channel Firing


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Rh Take them for all in all, few people have done my heart more good; they seemed so thoroughly entitled to happiness, and to enjoy it in so large a measure and so free from after-thought; almost they persuaded me to be a Jew. There was, indeed, a chink of money in their talk. They particularly commended people who were well to do. "He don't care—ain't it?" was their highest word of commendation to an individual fate; and here I seem to grasp the root of their philosophy—it was to be free from care, to be free to make these Sunday wanderings, that they so eagerly pursued after wealth; and all this carefulness was to be careless. The fine good-humour of all three seemed to declare they had attained their end. Yet there was the other side to it; and the recipients of kettles perhaps cared greatly. No sooner had they returned, than the scene of yesterday began again. The horses were not even tied with a straw rope this time—it was not worth while; and Kelmar disappeared into the bar, leaving them under a tree on the other side of the road. I had to devote myself. I stood under the shadow of that tree for, I suppose, hard upon an hour, and had not the heart to be angry. Once some one remembered me, and brought me out a half a tumblerful of the playful, innocuous American cocktail. I drank it, and lo! veins of living fire ran down my


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178 legs; and then a focus of conflagration remained seated in my stomach, not unpleasantly, for quarter of an hour. I love these sweet, fiery pangs, but I will not court them. The bulk of the time I spent in repeating as much French poetry as I could remember to the horses, who seemed to enjoy it hugely. And now it went— and again, to a more trampling measure—

The redbreasts and the brooks of Europe, in that dry and songless land; brave old names and wars, strong cities, cymbals, and bright armour, in that nook of the mountain, sacred only to the Indian and the bear! This is still the strangest thing in all man's travelling, that he should carry about with him incongruous memories. There is no foreign land; it is the traveller only that is foreign, and now and again, by a flash of recollection, lights up the contrasts of the earth. But while I was thus wandering in my fancy, great feats had been transacted in the bar. Corwin the bold had fallen, Kelmar was again crowned


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Rh with laurels, and the last of the ship's kettles had changed hands. If I had ever doubted the purity of Kelmar's motives, if I had ever suspected him of a single eye to business in his eternal dallyings, now at least, when the last kettle was disposed of, my suspicions must have been allayed. I dare not guess how much more time was wasted; nor how often we drove off, merely to drive back again and renew interrupted conversations about nothing, before the Toll House was fairly left behind. Alas! and not a mile down the grade there stands a ranche in a sunny vineyard, and here we must all dismount again and enter. Only the old lady was at home, Mrs. Guele, a brown old Swiss dame, the picture of honesty; and with her we drank a bottle of wine and had an age-long conversation, which would have been highly delightful if Fanny and I had not been faint with hunger. The ladies each narrated the story of her marriage, our two Hebrews with the prettiest combination of sentiment and financial bathos. Abramina, specially, endeared herself with every word. She was as simple, natural, and engaging as a kid that should have been brought up to the business of a money-changer. One touch was so resplendently Hebraic that I cannot pass it over. When her "old man" wrote home for her from America, her old man's family would not entrust her with the


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180 money for the passage, till she had bound herself by an oath—on her knees, I think she said—not to employ it otherwise. This had tickled Abramina hugely, but I think it tickled me fully more. Mrs. Guele told of her homesickness up here in the long winters; of her honest, country-woman troubles and alarms upon the journey; how in the bank at Frankfort she had feared lest the banker, after having taken her cheque, should deny all knowledge of it—a fear I have myself every time I go to a bank; and how crossing the Luneburger Heath, an old lady, witnessing her trouble and finding whither she was bound, had given her "the blessing of a person eighty years old, which would be sure to bring her safely to the States. And the first thing I did," added Mrs. Guele, "was to fall down-stairs."

At length we got out of the house, and some of us into the trap, when—judgment of Heaven!—here came Mr. Guele from his vineyard. So another quarter of an hour went by; till at length, at our earnest pleading, we set forth again in earnest, Fanny and I white-faced and silent, but the Jews still smiling. The heart fails me. There was yet another stoppage! And we drove at last into Calistoga past two in the afternoon, Fanny and I having breakfasted at six in the morning, eight


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Rh mortal hours before. We were a pallid couple; but still the Jews were smiling. So ended our excursion with the village usurers; and, now that it was done, we had no more idea of the nature of the business, nor of the part we had been playing in it, than the child unborn. That all the people we had met were the slaves of Kelmar, though in various degrees of servitude; that we ourselves had been sent up the mountain in the interests of none but Kelmar; that the money we laid out, dollar by dollar, cent by cent, and through the hands of various intermediaries, should all hop ultimately into Kelmar's till;—these were facts that we only grew to recognise in the course of time and by the accumulation of evidence. At length all doubt was quieted, when one of the kettle-holders confessed. Stopping his trap in the moonlight, a little way out of Calistoga, he told me, in so many words, that he dare not show face there with an empty pocket. "You see, I don't mind if it was only five dollars, Mr. Stevens," he said, "but I must give Mr. Kelmar something." Even now, when the whole tyranny is plain to me, I cannot find it in my heart to be as angry as perhaps I should be with the Hebrew tyrant. The whole game of business is beggar my neighbour; and though perhaps that game looks uglier when played at such close quarters and on so small a


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182 scale, it is none the more intrinsically inhumane for that. The village usurer is not so sad a feature of humanity and human progress as the millionaire manufacturer, fattening on the toil and loss of thousands, and yet declaiming from the platform against the greed and dishonesty of landlords. If it were fair for Cobden to buy up land from owners whom he thought unconscious of its proper value, it was fair enough for my Russian Jew to give credit to his farmers. Kelmar, if he was unconscious of the beam in his own eye, was at least silent in the matter of his brother's mote.


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HERE were four of us squatters—myself and my wife, the King and Queen of Silverado; Sam, the Crown Prince; and Chuchu, the Grand Duke. Chuchu, a setter crossed with spaniel, was the most unsuited for a rough life. He had been nurtured tenderly in the society of ladies; his heart was large and soft; he regarded the sofa-cushion as a bed-rock necessary of existence. Though about the size of a sheep, he loved to sit in ladies' laps; he never said a bad word in all his blameless days; and if he had seen a flute, I am sure he could have played upon it by nature. It may seem hard to say it of a dog, but Chuchu was a tame cat. The king and queen, the grand duke, and a basket of cold provender for immediate use, set forth from Calistoga in a double buggy; the crown prince, on horseback, led the way like an outrider. Bags and boxes and a second-hand stove were to follow close upon our heels by Hanson's team. It was a beautiful still day; the sky was one field of azure. Not a leaf moved, not a speck appeared


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184 in heaven. Only from the summit of the mountain one little snowy wisp of cloud after another kept detaching itself, like smoke from a volcano, and blowing southward in some high stream of air: Mount Saint Helena still at her interminable task, making the weather, like a Lapland witch. By noon we had come in sight of the mill: a great brown building, half-way up the hill, big as a factory, two stories high, and with tanks and ladders along the roof; which, as a pendicle of Silverado mine, we held to be an outlying province of our own. Thither, then, we went, crossing the valley by a grassy trail; and there lunched out of the basket, sitting in a kind of portico, and wondering, while we ate, at this great bulk of useless building. Through a chink we could look far down into the interior, and see sunbeams floating in the dust and striking on tier after tier of silent, rusty machinery. It cost six thousand dollars, twelve hundred English sovereigns; and now, here it stands deserted, like the temple of a forgotten religion, the busy millers toiling somewhere else. All the time we were there, mill and mill town showed no sign of life; that part of the mountainside, which is very open and green, was tenanted by no living creature but ourselves and the insects; and nothing stirred but the cloud manufactory upon the mountain summit. It was odd to


text:
Doe v. Groody

US Supreme Court certiorari denied by Groody v. Doe, 2004 U.S. LEXIS 6605 (U.S., Oct. 4, 2004)

On Appeal from the United States District Court for the Middle District of Pennsylvania (Dist. Court No. O0-cv-00356) District Judge: Honorable James F. McClure, Jr.

For Appellees: Andrew A. Solomon (Argued), Malvern, PA, John M. Dodig, Master, Weinstein, Schnoll & Dodig, Philadelphia, PA.

For Appellants: John G. Knorr, III, Esq. (Argued), Office of Attorney General of Pennsylvania, Department of Justice, Harrisburg, PA.

Before: ALITO, AMBRO and CHERTOFF, Circuit Judges.

title: Doe v. Groody


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Rh this with the former days, when the engine was in full blast, the mill palpitating to its strokes, and the carts came rattling down from Silverado, charged with ore.

By two we had been landed at the mine, the buggy was gone again, and we were left to our own reflections and the basket of cold provender, until Hanson should arrive. Hot as it was by the sun, there was something chill in such a homecoming, in that world of wreck and rust, splinter and rolling gravel, where for so many years no fire had smoked. Silverado platform filled the whole width of the cañon. Above, as I have said, this was a wild, red, stony gully in the mountains; but below it was a wooded dingle. And through this, I was told, there had gone a path between the mine and the Toll House—our natural north-west passage to civilisation. I found and followed it, clearing my way as I went through fallen branches and dead trees. It went straight down that steep cañon, till it brought you out abruptly over the roofs of the hotel. There was nowhere any break in the descent. It almost seemed as if, were you to drop a stone down the old iron chute at our platform, it would never rest until it hopped upon the Toll House shingles. Signs were not wanting of the ancient greatness of Silverado. The footpath was


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186 well marked, and had been well trodden in the old days by thirsty miners. And far down, buried in foliage, deep out of sight of Silverado, I came on a last outpost of the mine—a mound of gravel, some wreck of wooden aqueduct, and the mouth of a tunnel, like a treasure grotto in a fairy story. A stream of water, fed by the invisible leakage from our shaft, and dyed red with cinnabar or iron, ran trippingly forth out of the bowels of the cave; and, looking far under the arch, I could see something like an iron lantern fastened on the rocky wall. It was a promising spot for the imagination. No boy could have left it unexplored. The stream thenceforward stole along the bottom of the dingle, and made, for that dry land, a pleasant warbling in the leaves. Once, I suppose, it ran splashing down the whole length of the cañon, but now its head waters had been tapped by the shaft at Silverado, and for a great part of its course it wandered sunless among the joints of the mountain. No wonder that it should better its pace when it sees, far before it, daylight whitening in the arch, or that it should come trotting forth into the sunlight with a song. The two stages had gone by when I got down, and the Toll House stood, dozing in sun and dust and silence, like a place enchanted. My mission was after hay for bedding, and that I was readily


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Rh promised. But when I mentioned that we were waiting for Rufe, the people shook their heads. Rufe was not a regular man anyway, it seemed; and if he got playing pokerWell, poker was too many for Rufe. I had not yet heard them bracketed together; but it seemed a natural conjunction, and commended itself swiftly to my fears; and as soon as I returned to Silverado and had told my story, we practically gave Hanson up, and set ourselves to do what we could find do-able in our desert-island state. The lower room had been the assayer's office. The floor was thick with débris—part human, from the former occupants; part natural, sifted in by mountain winds. In a sea of red dust there swam or floated sticks, boards, hay, straw, stones, and paper; ancient newspapers, above all—for the newspaper, especially when torn, soon becomes an antiquity—and bills of the Silverado boardinghouse, some dated Silverado, some Calistoga Mine. Here is one, verbatim; and if any one can calculate the scale of charges, he has my envious admiration.


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Rh was spread widely on the floor. Had any of us ever seen giant powder? No, nobody had; and instantly there grew up in my mind a shadowy belief, verging with every moment nearer to certitude, that I had somewhere heard somebody describe it as just such a powder as the one around us. I have learnt since that it is a substance not unlike tallow, and is made up in rolls for all the world like tallow candles. Fanny, to add to our happiness, told us a story of a gentleman who had camped one night, like ourselves, by a deserted mine. He was a handy, thrifty fellow, and looked right and left for plunder, but all he could lay his hands on was a can of oil. After dark he had to see to the horses with a lantern; and not to miss an opportunity, filled up his lamp from the oil can. Thus equipped, he set forth into the forest. A little while after, his friends heard a loud explosion; the mountain echoes bellowed, and then all was still. On examination, the can proved to contain oil, with the trifling addition of nitro-glycerine; but no research disclosed a trace of either man or lantern. It was a pretty sight, after this anecdote, to see us sweeping out the giant powder. It seemed never to be far enough away. And, after all, it was only some rock pounded for assay. So much for the lower room. We scraped some


text:
Doe v. Groody/Opinion of the Court

[p235] OPINION OF THE COURT

CHERTOFF, Circuit Judge.

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. 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.

The typed affidavit requested permission to search John Doe's residence and his Volkswagen Click for Enhanced Coverage Linking Searchesfor drugs, paraphernalia, money, drug records and other evidence. Additionally, the affidavit stated:

[p236] The search should also include all occupants of the residence as the information developed shows that [Doe] has frequent visitors that purchase methamphetamine. These persons may be on the premises at the time of the execution of the search warrant and many attempt to conceal controlled substances on their persons.

. ..

This application seeks permission to search all occupants of the residence and their belongings to prevent the removal, concealment, or destruction of any evidence requested in this warrant. It is the experience of your co-affiants that drug dealers often attempt to do so when faced with impending apprehension and may give such evidence to persons who do not actually reside or own/rent the premises. This is done to prevent the discovery of said items in hopes that said persons will not be subject to search when police arrive.

. ..

As a result of the information developed, your affiant requests that a search warrant … be issued for … the residence of [John Doe] and all occupants therein.

PP 17, 20,& 21.

The typed affidavit was signed on the last page by a police officer, under whose signature was the entry: "Sworn and subscribed before District Justice James R. Ferrier 2l-3-03, this 6th of March 1998." Under the legend was the Magistrate's signature, followed by the phrase "Issuing Authority" and the impression of a rubber stamp.

The warrant was attached to a separate printed face sheet, entitled "Search Warrant and Affidavit." That form contained boilerplate introductory language, followed by open blocks for someone to type information. The first block asked for the identity of the "items to be search for and seized." The following blocks asked, in turn, for a "specific description of premises and/or persons to be searched"; the "name of owner, occupant or possessor of said premises to be searched"; a description of the nature and date of the statutory violations; and for the basis of "probable cause belief" Finally, the printed face sheet contained a space to delineate the results of the search, to be completed after the warrant was executed.

These printed blocks were completed. In response to the questions "date of violation" and "probable cause belief," the face sheet specifically referred to the typed affidavit of probable cause attached to the warrant. But in answering the question "specific description of premises and/or persons to be searched," the attached typed affidavit was not mentioned. Rather, the form contained a typewritten entry naming only John Doe, giving his description, date of birth and social security number, and identifying and describing John Doe's residence.

The printed warrant and affidavit face sheet was signed by the same police officer and "issuing authority" who had signed the underlying typed affidavit.

Armed with the warrant, Task Force police went to the John Doe house to carry out the search. Evidently, they anticipated encountering females because they enlisted a female traffic meter patrol officer to be available if necessary to assist in the search. As the officers approached the house, they met John Doe, and brought him into the house. Once inside, however, the officers found no visitors, but only John Doe's wife, Jane, and their ten year old daughter, Mary.

The officers decided to search Jane and Mary Doe for contraband, and sent for the meter patrol officer. When she arrived, [p237]  the female officer removed both Jane and Mary Doe to an upstairs bathroom. They were instructed to empty their pockets and lift their shirts. The female officer patted their pockets. She then told Jane and Mary Doe to drop their pants and turn around. No contraband was found. With the search completed, both Jane and Mary Doe were returned to the ground floor to await the end of the search.

John and Jane Doe filed a complaint under 42 U.S.C. § 1983 on their own behalf, and on behalf of Mary Doe, against the searching officers and their superiors, and against various government entities. The Does alleged, among other things, that the officers illegally strip searched Jane and Mary Doe. After preliminary litigation skirmishing, a number of claims and parties were dismissed, and discovery was conducted. Cross motions for summary judgment were filed. One of these was a motion by individual police officers for summary judgment rejecting the strip search claim on the ground of qualified immunity. The District Court granted the motion for two officers, but denied qualified immunity to officers Joseph Groody, Adam Bermodin, and Robert Phillips and Agent Robert Bruce, the four Task Force officials who were directly involved in the search of Jane Doe and Mary Doe. The District Judge also granted partial summary judgment against those four officers on the issue of liability.

The four Task Force officers appeal the denial of summary judgment based on qualified immunity.

II.
We have jurisdiction over that portion of the District Court's decision rejecting the claim of qualified immunity by the four officers. Although the litigation below is far from concluded, a denial of qualified immunity that turns on an issue of law--rather than a factual dispute--falls within the collateral order doctrine that treats certain interlocutory decisions as "final" within the meaning of 28 U.S.C. § 1291. Behrens v. Pelletier, 516 U.S. 299, 307, 313, 133 L. Ed. 2d 773, 116 S.C.t. 834 (1996); Mitchell v. Forsyth, 472 U.S. 511, 525, 86 L. Ed. 2d 411, 105 S.C.t. 2806 (1985); In re Montgomery County, 215 F.3d 367, 373 (3d Cir. 2000). All parties here acknowledge, and we agree, that there is no genuine issue of fact that relates to the qualified immunity issue that is being appealed. Accordingly, we may decide this appeal. Our review of this legal issue is plenary. Eddy v. V.I. Water and Power Auth., 256 F.3d 204, 208 (3d Cir. 2001); Torres v. McLaughlin, 163 F.3d 169, 170 (3d Cir. 1998).

Qualified immunity protects law enforcement officers from being tried for actions taken in the course of their duties. If the immunity applies, it entitles the officer to be free of the "burdens of litigation." Mitchell, 472 U.S. at 526. But the immunity is forfeited if an officer's conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 614, 143 L. Ed. 2d 818, 119 S.C.t. 1692 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S.C.t. 2727 (1982)). To determine in this case whether the officers have lost their immunity, we must engage in a two step analysis. First, we must decide "whether a constitutional right would have been violated on the facts alleged . . . ." Saucier v. Katz 533 U.S. 194, 200, 150 L. Ed. 2d 272, 121 S.C.t. 2151 (2001). Because we consider an appeal by the officers from the denial of their motion for summary judgment, we must evaluate the undisputed facts based on the summary judgment record, drawing all inferences in favor of the plaintiff. [p238] Behrens, 516 U.S. at 309; Torres, 163 F.3d at 170. Second, if we believe that a constitutional violation did occur, we must consider whether the right was "clearly established." Saucier, 533 U.S. at 201; see Groh v. Ramirez, 540 U.S.  , 157 L. Ed. 2d 1068, 1082, 124 S.C.t. 1284 (2004). The question is "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202. This is an objective inquiry, to be decided by the court as a matter of law. Bartholomew v. Pennsylvania, 221 F.3d 425, 428 (3d Cir. 2000).

III.
The constitutional violation at issue here arises under Jane and Mary Doe's Fourth (and Fourteenth) Amendment rights to be free of unreasonable searches and seizures. Both Jane and Mary Doe were physically removed to the bathroom of their house and detained there for a period of time. They were asked to remove or shift articles of clothing and were visually inspected and touched by a female officer who was searching for contraband. Later, they were moved to the ground floor and detained there during the balance of the house search.

The nature of the intrusion alleged is significant. In Leveto v. Lapina, 258 F.3d 156, 172-75 (3d Cir. 2001), this Court held that, as of 2001, it was unclear whether police searching a premises could permissibly detain those present or "frisk" them for protective purposes. But the facts here are different than those in Leveto. Although Jane and Mary Doe were detained during the course of the search in this case, the District Court denied qualified immunity for the search, not the detention. Insofar as Leveto discusses detention, therefore, it is irrelevant to this issue. Similarly, neither the Does nor the officers contend that the search here was a protective "frisk" or search for weapons that is justified on less than full probable case. See Terry v. Ohio, 392 U.S. 1, 16, 25-30, 20 L. Ed. 2d 889, 88 S.C.t. 1868 (1968); Leveto, 258 F.3d at 163-64. Rather, the officers concede that Jane and Mary Doe were searched for possible evidence or contraband, and not because they were viewed as possibly armed or dangerous. Indeed, it is difficult to conceive how the search of a ten-year old child in these circumstances could be justified as part of a "protective sweep." Because the decision in Leveto concerned the special rules governing protective searches, it simply does not address the non-protective body search that is before us in this matter.

A non-protective search must normally be supported by probable cause and, with certain exceptions, must be authorized by a warrant. The officers principally argue that the search of both females was covered by the warrant for the search of the house and was supported by probable cause. If a warrant did indeed authorize a search of Jane and Mary Doe, then the officers were entitled to rely upon it to satisfy the probable cause requirement, and there was no constitutional violation. [p239] United States v. Leon, 468 U.S. 897, 922, 82 L. Ed. 2d 677, 104 S.C.t. 3405 (1984).

The face of the search warrant ere, however, does not grant authority to search either Jane or Mary Doe. The block designated for a description of the person or place to be searched specifically names John Doe, and identifies and describes his residence. Nothing in that portion of the printed warrant refers to any other individual, named or unnamed, to be searched. Seeking to remedy this omission, the officers argue that the warrant should be read in light of the accompanying affidavit which requested permission to search "all occupants" of the residence. They conclude that the warrant should be read in "common sense" fashion, as supplemented by the affidavit. If that contention is correct, then police had legal authority to search anybody that they encountered inside the house when they came to execute the warrant.

To be sure, a warrant must be read in a common sense, non-technical fashion. United States v. Ventresca, 380 U.S. 102, 109, 13 L. Ed. 2d 684, 85 S.C.t. 741 (1965). But it may not be read in a way that violates its fundamental purposes. As the text of the Fourth Amendment itself denotes, a particular description is the touchstone of a warrant. U.S.C.onst. amend. IV. The requirement of a particular description in writing accomplishes three things. First, it memorializes precisely what search or seizure the issuing magistrate intended to permit. Second, it confines the discretion of the officers who are executing the warrant. Marron v. United States, 275 U.S. 192, 196, 72 L. Ed. 231, 48 S.C.t. 74, Treas. Dec. 42528 (1927). Third, it "inform[s] the subject of the search what can be seized." Bartholomew, 221 F.3d at 429. For these reasons, although a warrant should be interpreted practically, it must be sufficiently definite and clear so that the magistrate, police, and search subjects can objectively ascertain its scope. Groh, 540 U.S. at  , 157 L. Ed. 2d at 1080.

As the officers correctly observe, it is perfectly appropriate to construe a warrant in light of an accompanying affidavit or other document that is incorporated within the warrant. But to take advantage of this principle of interpretation, the warrant must expressly incorporate the affidavit. Bartholomew, which the officers invoke, makes this very point. In that case, we observed that "'when a warrant is accompanied by an affidavit that is incorporated by reference, the affidavit maybe used in construing the scope of the warrant.'" Id. at 428 (quoting United States v. Johnson, 690 F.2d 60, 64-65 (3d Cir. 1982), cert. denied, 459 U.S. 1214, 75 L. Ed. 2d 450, 103 S.C.t. 1212 (1983)). We dwelled at some length on the importance of making that incorporation clear. Id. at 428 & n.4 (citing cases). The Supreme Court has very recently re-emphasized this point in Groh, 540 U.S. at  , 157 L. Ed. 2d at 1078.

In this case, there is no language in the warrant that suggests that the premises or people to be searched include Jane Doe, Mary Doe, "all occupants" or anybody else, save John Doe himself. Other portions of the face sheet which describe the date of the violation and the supporting probable cause do refer to the attached typed affidavit. But this fact is actually unhelpful to the officers, since it demonstrates that where the face sheet was intended to incorporate the affidavit, it said so explicitly. As a matter of common sense, as well as [p240]  logic, the absence of a reference to the affidavit must therefore be viewed as negating any incorporation of that affidavit.

We recognize that there are decisions in which an affidavit has been used to save a defective warrant even when it has not been incorporated within that warrant. But the cases fall into two categories. The first embraces those circumstances in which the warrant contains an ambiguity or clerical error that can be resolved with reference to the affidavit. In these situations, it is clear that the requesting officers and the magistrate agreed on the place to be searched or item to be seized, but there is an obvious ministerial error in misidentifying or ambiguously identifying the place or item See, e.g., United States v. Ortega-Jimenez, 232 F.3d 1325, 1329 (10th Cir. 2000) (ambiguous term); United States v. Simpson, 152 F.3d 1241, 1248 (10th Cir. 1998) (internal inconsistency in warrant). Reliance on the affidavit in these circumstances neither broadens nor shrinks the scope of the warrant, but merely rectifies a "minor irregularity." United States v. Johnson, 690 F.2d at 65 n.3 (quoting Ventresca, 380 U.S. at 108).

The omission of Jane Doe, Mary Doe, or "all occupants" from the warrant in this case cannot be viewed as the sort of ambiguity or misidentification error that can be clarified by inspecting the affidavit. This warrant has no ambiguous or contradictory terms on its face. Rather, the language of the warrant is inconsistent with the language of the affidavit, because the former does not grant what the latter sought--permission to search "all occupants" of the house. That is not a discrepancy as to form; it is a difference as to scope. And it is a difference of significance. A state magistrate reviewing a search warrant affidavit might well draw the line at including unnamed "all occupants" in the affidavit because Pennsylvania law disfavors "all occupant" warrants. See Commonwealth v. Gilliam, 522 Pa. 138, 560 A.2d 140, 142 (Pa. 1989). Thus, the circumstances of this warrant are a far cry from those in the category of warrants which can be "clarified" by a separate affidavit.

The second category of decisions in which an unincorporated affidavit has been read to modify a search warrant is constituted by cases in which the affidavit is particularized but the warrant is overbroad. See, e.g., United States v. Bianco, 998 F.2d 1112, 1116-17 (2d Cir. 1993); United States v. Towne, 997 F.2d 537, 547 n.5 (9th Cir. 1993) (discussing cases). So long as the actual search is confined to the narrower scope of the affidavit, courts have sometimes allowed the unincorporated affidavit to "cure" the warrant id., or at least have treated the excessive elements of the warrant as harmless surplusage, see United States v. Stefonek, 179 F.3d 1030, 1033-34 (7th Cir. 1999).

Commonwealth v. Carlisle, 517 Pa. 36, 534 A.2d 469 (Pa. 1987), cited by the officers on this appeal, is a good example. There, the police searched a specific apartment at an address. The affidavit identified the apartment number and street address, but the search warrant only mentioned the street address. Noting that the officers had only searched the specific apartment [p241]  for which they had requested the warrant, the Supreme Court of Pennsylvania held that the arguably overbroad scope of the warrant should be read narrowly in light of the affidavit. In other words, the warrant clearly authorized the search of the specific apartment and, perhaps, too much more. Since the police limited themselves to the narrow search--which was clearly permitted by the warrant and supported by the affidavit--the affidavit was permitted to narrow the scope of the warrant. Tellingly, the court observed that had the police searched more broadly, the fruits of that search would have been suppressed. Id. at 472.

In the case we consider now, however, the circumstances are precisely the reverse of the preceding category of "cure" cases. Here, the affidavit is broader than the warrant, and the police in fact searched more broadly than the warrant. Unlike Carlisle, then, the officers seek to use the affidavit to expand, rather than limit, the warrant. That makes all the difference.

The warrant provides the license to search, not the affidavit. Cases such as Bianco, Towne and Carlisle may allow us to rescue an overbroad warrant if the police forbear from exercising the full measure of its excessive scope. It does not follow that we can rescue an overbroad search if the police exceed the full measure of the warrant. Bluntly, it is one thing if officers use less than the authority erroneously granted by a judge. It is quite another if officers go beyond the authority granted by the judge. Were we to adopt the officers' approach to warrant interpretation, and allow an unincorporated affidavit to expand the authorization of the warrant, we would come dangerously close to displacing the critical role of the independent magistrate.

This point was reemphasized forcefully this term by the Supreme Court in Groh v. Ramirez. In Groh, the Bureau of Alcohol, Tobacco and Firearms completed an application and affidavit that detailed with specificity that the agents sought to search for and seize a cache of firearms suspected to be located at the home of Joseph Ramirez. Groh, 540 U.S. at  , 157 L. Ed. 2d at 1076. The warrant was less specific. In the portion of the printed warrant form "that called for a description of the 'person or property' to be seized," the agents identified the location to be searched, but neither listed the items to be seized nor "incorporate[d] by reference the itemized list contained in the application." Id. The warrant did refer to the affidavit by reciting that the Magistrate was satisfied that the affidavit established probable cause to believe that contraband was concealed on the premises. Id. On the authority of the warrant, the Bureau searched Ramirez's house. Id. 157 L. Ed. 2d at 1077. The Bureau did not seize anything, nor were any charges filed against Ramirez. Id. Ramirez sued Groh and the other officers for a Fourth Amendment violation.

The facts in Groh were strikingly similar to those in this case:

In Groh, as here, the agents submitted an application and affidavit that detailed what they wanted to search and to seize. Id. at 157 L. Ed. 2d at 1076.

In Groh, as here, the affidavit sought to supply probable cause to search for, and seize, those listed items. Id.

[p242] In Groh, as here, the warrant form was prepared by the officer who wrote the affidavit, and who presumably intended the warrant to authorize the search and seizure of the items in the affidavit. Id. 157 L. Ed. 2d at 1079.

In Groh, as here, the warrant expressly referred to the affidavit in affirming the existence of probable cause, but not in describing what was to be searched and seized. Id. 157 L. Ed. 2d at 1076.

In Groh, as here, the Magistrate reviewed the warrant and affidavit, and did not alter the warrant before signing it.

On these facts, the Supreme Court held the search warrant invalid. Id. 157 L. Ed. 2d at 1078. The Court's reasoning turned precisely on the sharp distinction the law draws between what is authorized in a warrant, and what is merely an application by the police. Id. 157 L. Ed. 2d at 1080. The Court recognized that the application and affidavit contained an adequate description of the items to be seized, but observed that because neither was incorporated by reference into the warrant description of "'persons or property' to be seized," their contents were irrelevant. Id 157 L. Ed. 2d at 1076, 1080. But the Court explicitly rejected the argument that one could infer that the Magistrate must have intended the warrant to authorize the full scope of what was sought in the affidavit:

Unless the particular items described in the affidavit are also set forth in the warrant itself. . . there can be no written assurance that the Magistrate actually found probable cause to search for, and to seize, every item mentioned in the affidavit. … The mere fact that the Magistrate issued a warrant does not necessarily establish that he agreed that the scope of the search should be as broad as the affiant's request.

Id. 157 L. Ed. 2d at 1080. That rule disposes of appellants' reliance on the affidavit here.

Moreover, this case would be a particularly bad instance in which to allow a broad affidavit to overwhelm a narrow warrant. For when we examine the affidavit on which the officers rely, it is doubtful that probable cause exists to support a search of John Doe's wife and minor daughter. Paragraphs 17 and 20--which are the provisions seeking to justify an "all occupants" search--quite specifically argue that visitors may be present purchasing drugs and that dealers often give contraband to non-residents of a house in the hopes they will not be searched. We look in vain for any assertion that narcotics dealers often hide drugs on family members and young children. Perhaps they do; but the judge reviewing this affidavit would not know it. So, if anything, these paragraphs of the affidavit appear to undermine the probable cause to search Jane and Mary Doe. That is all the more reason to doubt that the Magistrate's failure to include these two family members in the warrant was an oversight. And that also makes it all the less reasonable to read permission to search them into the text of the warrant.

We are mindful that search warrants and affidavits are often prepared under time pressure and should not be subjected to microscopic dissection. But the warrant plays a critical role under the Fourth Amendment. At some point, flexibility becomes [p243]  breakage. The warrant must be written with objective definition, or its scope will not be discernable to those who are bound to submit to its authority, whether they are police or subjects of the search. By the same token, without a clear reference to the affidavit in the warrant, the former cannot simply be assumed to broaden the latter. Otherwise, we might indeed transform the judicial officer into little more than the cliche "rubber stamp."

Finally, we consider whether the search of Jane and Mary Doe can be justified on some basis other than the warrant. The officers have not seriously pressed this argument, but the District Court did consider whether the officers had probable cause to search Jane and Mary Doe under an exception to the warrant requirement.

None appears. A search warrant for a premises does not constitute a license to search everyone inside. Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238, 100 S.C.t. 338 (1979). The record does not disclose any independent basis to suspect Jane Doe--let alone 10-year old Mary Doe--of drug activity. While the officers justified their decision to conduct the personal searches because of the ease with which contraband could be concealed on those present in the searched premises, that is precisely the justification for a personal search that has been rejected by the Supreme Court. Id. at 94-96. Simply put, there is none of the kind of "particularized" probable cause required for a search in circumstances such as these. Id. at 91.

IV.
Having determined that the search of Jane and Mary Doe violated the Fourth Amendment, what remains is to decide whether this violation transgressed "clearly established" rights. The District Court held that it did, and the officers argue that the District Court applied the "clearly established" test at too high a level of generality.

We agree that in determining whether a right is "clearly established," we should analyze the right with specificity. Bartholomew, 221 F.3d at 429. Where a challenged police action presents a legal question that is "unusual and largely heretofore undiscussed," id at 429, or where there is "at least some significant authority" that lends support of the police action, Leveto, 258 F.3d at 166, we have upheld qualified immunity even while deciding that the action in question violates the Constitution. On the other hand, the plaintiff need not show that there is a prior decision that is factually identical to the case at hand in order to establish that a right was clearly established. "A right may be clearly established even if there is 'no previous precedent directly in point.'" Id. at 162 (quoting Good v. Dauphin County Soc. Servs. for Children & Youth, 891 F.2d 1087, 1092 (3d Cir. 1989)).

The principal narrow question in this case is whether in 1999, when these searches occurred, it was clearly established that police could not broaden the scope of a warrant with an unincorporated affidavit. We think that a review of the cases indicates that it was.

We begin with the settled proposition that the Fourth Amendment "prevents the seizure of one thing under a warrant describing another." Marron, 275 U.S. at 196. That is both uncontroverted and long established. As we observed above, a warrant may be modified by an affidavit when it is expressly incorporated by reference. We so held as early as our 1982 decision in United States v. Johnson, 690 F.2d at 64-65. Pennsylvania cases agree. See [p244] Commonwealth v. Wilson, 429 Pa. Super. 197, 631 A.2d 1356, 1358 (Pa. Super. Ct. 1993). But there is no express incorporation here.

What is significant is that the officers can point to no precedent that allowed an unincorporated affidavit to expand a search warrant. Although there are decisions that allow unincorporated affidavits to clarify or narrow overbroad warrants, we have explained at considerable length why these are a totally different matter. This is not an arcane or legalistic distinction, but a difference that goes to the heart of the constitutional requirement that judges, and not police, authorize warrants. An officer may reasonably rely on a magistrate's approval of an overbroad warrant because the officer normally should not be penalized for the magistrate's mistake. See Massachusetts v. Sheppard, 468 U.S. 981, 990, 82 L. Ed. 2d 737, 104 S.C.t. 3424 (1984); U.S. v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty Seven Cents, 307 F.3d 137, 152 (3d Cir. 2002). But there is no reasonable basis for an officer to exceed the scope of a warrant just because he asked for broader search authority in the affidavit. In the latter instance, the officer has not relied on, but has disregarded, the magistrate's judgment.

Our decision is fully consistent with the Supreme Court's decision in Groh. There, considering a warrant that failed to specify items to be seized in a house that was being searched, the Court dismissed the contention that omission of this description was not clearly unconstitutional, or a good faith error. Rather, the Court stated: "As we observed in the companion case to Shepherd, 'a warrant may be so facially deficient -- i.e., in failing to particularize the place to be searched or the things to be seized -- that the executing officers cannot reasonably presume it to be valid."' Groh, 540 U.S. at  , 157 L. Ed. 2d at 1083 (quoting Leon, 468 U.S. at 923). The flaw here was every bit as manifest as the omission in the warrant in Groh.

Finally, even if an exception to the warrant requirement did apply, it is clear that the search of Jane and Mary Doe for evidence had to be based on probable cause, and not on a generalized concern that those present at a search might hide evidence. That principle was established as early as 1979. Ybarra, 444 U.S. at 94-96.

Searching Jane and Mary Doe for evidence beyond the scope of the warrant and without probable cause violated their clearly established Fourth Amendment rights. Accordingly, we will affirm the decision of the District Court rejecting qualified immunity for the searches, and remand the case for further proceedings consistent with this opinion.

title: Doe v. Groody/Opinion of the Court