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April 18, 1983


The opinion of the court was delivered by: GILES

 GILES, District Judge.

 Judith Tyler, a Special Agent of the Federal Bureau of Investigation ("FBI") has moved for summary judgment claiming she is immune from liability on the grounds of qualified immunity. Because there may be a genuine issue of material fact for trial, defendant's motion is denied.


 This case *fn1" arises out of an investigation by the FBI concerning the manufacture and sale of methamphetamine in violation of Title 21, U.S.C. ยงยง 846 and 841(a)(1), in the Philadelphia, Pennsylvania area. From February through September, 1982, Special Agent Tyler was in charge of the investigation. According to her, as a result of investigation into a drug ring operated by Robert Hoffner and John Drum, she learned that Eugene Muzychka was a major supplier of the chemical P2P, a necessary ingredient of methamphetamine. *fn2" (Tyler Affidavit, para. 2). A confidential source informed Tyler that Hoffner, Drum and others were planning to manufacture more methamphetamine and that a meeting was to take place during the afternoon of June 24, 1982, at a tavern named Hoff's Hut. According to the informant, *fn3" the purpose of the rendezvous was to meet with an individual who would supply chemicals necessary to manufacture the methamphetamine. (Id., P 10). At approximately 3:00 p.m. on June 24, 1982, Tyler observed Hoffner repeatedly looking at his watch as he paced up and down the sidewalk in front of Hoff's Hut. (Id., P 12). She drove around the block and saw Muzychka's silver Lincoln Continental double-parked next to Hoffner's Cadillac. She then radio-dispatched for a Philadelphia police squad car to meet her at the tavern. While waiting for the squad car, another Philadelphia police car drove up and offered assistance. She conveyed to the officer the informant's information which she had received, as well as her knowledge of the drug dealing activities of Hoffner, Drum and Muzychka. She also briefed the police officer on the types of chemicals that the subject might possess and the approximate size of the containers for those chemicals. (Id., P 13). When the second police car arrived, Tyler gave those officers the same briefing as given to the occupants of the first squad car. The first squad car had gone to the tavern to observe the suspects. After the second squad car went to the tavern, Tyler parked her car some distance away from Hoff's Hut. *fn4" She observed that Hoffner's car had left the tavern and had been stopped by the first police car. (Id., P 14).

 According to Muzychka, he was a passenger in his car which was being driven by Drum. Hoffner was driving his car immediately behind Muzychka's vehicle when the Philadelphia police officers, under the direction of Tyler, converged upon the Hoffner car and signalled it to stop. Muzychka and Drum drove around the block and then stopped near the Hoffner car to see what was happening to him. (First Amended Complaint, paras. 13, 14). Not having found any chemicals in Hoffner's car, the police proceeded to search Muzychka's vehicle as well as his person. Muzychka alleges that the uniformed police officers in the search ransacked both Hoffner's and his vehicle, including the locked trunks, without having search or arrest warrants or any probable cause. He also alleges that the police opened containers and briefcases and read documents which the plaintiff protested were confidential and subject to the attorney-client privilege relating to defenses in pending federal criminal cases. Muzychka contends that despite his instructions and protestations not to read the documents, the police commenced to review, page by page, the privileged documents in both briefcases. (First Amended Complaint, paras. 14-20). No contraband was seized.

 Police Officer Hebding's affidavit presents still a third version of the facts. According to him, the searches of both vehicles were done voluntarily and only after the officers obtained the consent of the vehicle operators. (Hebding Affidavit, paras. 10, 11, 21). He states categorically that no papers in the briefcases were read or even examined by any police officers or FBI agents at the scene (Id., P 11). According to him, he and his partner were briefed by Tyler to stop and search both vehicles for either drugs or large amounts of cash. (Id., P 5). Hoffner's car was stopped and the occupants patted down after the driver consented to a search of the car and voluntarily opened the trunk revealing an attache case. A police officer opened the briefcase to check for cash, drugs or weapons, saw none and quickly closed the briefcase. (Id., P 11). According to Hebding, the driver of the Cadillac had an ongoing conversation with agent Tyler during the course of the search. (Id., P 14). The search of the second vehicle that was originally identified by Tyler was also performed voluntarily and was equally cursory. During the search, Hebding saw an unzippered briefcase on the floor of the Lincoln-Continental behind the driver's seat. He put his hand inside, felt papers, but did not remove or read anything in the case. (Id., P 17). Hebding states that he and his partner were acting at the direction of Tyler, following her instructions to stop the two vehicles and search them for drugs, cash or weapons. (Id., P 21). He also states that at all times they believed that Tyler and her partner had probable cause to instruct the police officers to stop and search the cars and their occupants. (Id., P 22).

 Muzychka asserts that the acts of the police officers and of the defendants, as he relates them, occurred pursuant to a conspiracy to violate his civil rights by performing unconstitutional searches, interfering with his right to counsel and due process and, further, subjecting him to the tort of assault and battery. Tyler brings this motion for summary judgment pursuant to Fed. R. Civ. P. 56, having asserted the affirmative defense of qualified immunity in her answer to plaintiff's complaint.


 In deciding defendant's motion for summary judgment, the court must resolve any doubts as to the existence of genuine issues of fact against her as the moving party and must view all reasonable inferences in the light most favorable to the plaintiff who is opposing the motion. See Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981). The Third Circuit has emphasized that summary judgment is a "drastic remedy" which is never warranted except on a clear showing that no genuine issue of material fact remains for trial. See Id. at 405; Ely v. Hall's Motor Trans. Co., 590 F.2d 62, 66 (3d Cir. 1978); Suchomajcz v. Hummel Chemical Co., 524 F.2d 19, 24 (3d Cir. 1975). Considering the submitted evidence in view of this standard, I find that a question of material fact exists which could destroy Tyler's qualified immunity. Accordingly, for the reasons which follow, defendant's motion for summary judgment is denied.

 Qualified or "good faith" immunity is an affirmative defense that must be pleaded by the defendant. See Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980). The Supreme Court recently held, in Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982), that the good faith of the government official who is performing discretionary functions *fn5" is to be tested by a purely "objective" standard rather than by the two-prong test of Wood v. Strickland, 420 U.S. 308, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975), which had both objective and subjective components. In setting forth the objective test for qualified immunity, the Harlow Court held that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 102 S. Ct. at 2738. Thus, the threshold question on summary judgment centers not only upon what the currently applicable law is, but also upon "whether that law was clearly established at the time an action occurred." Id. at 2739. See Ward v. Johnson, 690 F.2d 1098, 1111 (4th Cir. 1982) (Harlow analysis applied).

 Applying Harlow, the threshold question to be answered in this case is whether the alleged conduct of the police officers, acting as the agents of the defendant in searching plaintiff's car and reading privileged documents, was so illegal as to violate clearly established law. See Saldana v. Garza, 684 F.2d 1159, 1165 (5th Cir. 1982). Harlow suggests a two step analysis: first, what, if any, was the clearly established law at that time, and second, did defendant violate that law while performing a discretionary function within the scope of her employment as a government official?

 I find that there was "clearly established law" at the time of the alleged action. Approximately three weeks before the search occurred on June 24, 1982, the Supreme Court, decided United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982), a case very much on point. Ross involved a warrantless search of an automobile and containers found in its trunk by law enforcement officers who had received information from a reliable informant. Probable cause existed to believe that contraband was concealed somewhere within the Ross vehicle. 102 S. Ct. at 2159-60. The Supreme Court extended the automobile exception to the warrant requirement established in Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280 (1925), and held that:

the scope of the warrantless search authorized by that exception is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the ...

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