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Sherwood v. Mulvihill

May 15, 1997

GEORGE SHERWOOD,

APPELLANT

v.

JAMES F. MULVIHILL, ASS'T PROSECUTOR; EDWARD BORDEN, PROSECUTOR; RONALD BAKLEY, DETECTIVE; JAMES BARNUM, CHIEF; JOHN DOE JAMES F. MULVIHILL,

DEFENDANT/THIRD-PARTY PLAINTIFF

v.

CAMDEN COUNTY PROSECUTOR,

THIRD-PARTY DEFENDANT



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 92-cv-03856) Submitted Under Third Circuit LAR 34.1(a)

Before: SLOVITER, Chief Judge, SCIRICA and SEITZ, Circuit Judges.

SEITZ, Circuit Judge.

Filed May 15, 1997

January 15, 1997

OPINION OF THE COURT

In this section 1983 action, we confront, once again, the fallout from the drug scourge afflicting our society. George Sherwood ("Plaintiff ") appeals from an order of the district court granting the motions of Defendants, Ronald Bakley and James Barnum ("Defendants"), for summary judgment. Plaintiff sought relief against Defendants for allegedly violating his fourth and fourteenth amendment rights by falsifying an affidavit used to obtain a warrant to search Plaintiff's residence. The district court exercised jurisdiction under 28 U.S.C. Section(s) 1331 and 1343. We have jurisdiction pursuant to 28 U.S.C. Section(s) 1291. Our standard of review is plenary.

I.

The following facts are undisputed. A confidential informant ("informant") whose past tips led to several drug-related arrests, informed Defendant Barnum, chief of police in Franklin Township, New Jersey, that Plaintiff was selling methamphetamine from his residence. The informant told Defendant Barnum that he could arrange a narcotics purchase from Plaintiff. On April 4, 1990, Defendant Barnum, acting undercover, supervised a controlled drug purchase from Sherwood's residence.

Defendant Bakley later drafted, and both Defendants signed, an affidavit used to seek a warrant to search Plaintiff's residence. The affidavit chronicled the controlled transaction by stating:

(g) That after searching said informant, same was driven to the Sherwood residence by Chief Barnum who gave this informant a quantity of money and requested same go to Sherwood and purchase a quantity of purported methamphetamine.

(h) That while being watched by Chief Barnum, the individual did go to the rear door of the residence and after knocking on same, George Sherwood came to the door and came outside. Then, both individuals went back into the house.

(i) That a few minutes later, said person exited the house and returned directly to Chief Barnum's vehicle. At this time, said informant handed Chief Barnum a plastic bag containing a chunk of a white substance which same said was purchased from George Sherwood.

(Appellant's Br. at App. E-1.3.) Defendant Bakley later identified the substance as methamphetamine. Plaintiff contends that each of the quoted paragraphs is false because each omits and/or affirmatively misrepresents facts surrounding the controlled transaction. First, paragraph (g) of the affidavit omits that a third person, Michael Vasgar, who was unaware that Defendant Barnum was a police officer and that he was aiding in a controlled narcotics purchase, accompanied Defendant Barnum and the informant to Plaintiff's residence on April 4, 1990. *fn1 In this same paragraph, the affidavit states that Defendant Barnum handed money to the informant and instructed him to purchase methamphetamine from Plaintiff. The parties do not dispute that Vasgar accompanied Defendant Barnum and the informant to Plaintiff's residence and that Defendant Barnum actually gave Vasgar the money and instructed him to make the purchase.

Paragraph (h) of the affidavit omits the identity of the "individual" who approached Plaintiff and disappeared into the residence with Plaintiff. The parties do not dispute that it was Vasgar, acting on Defendant Barnum's instruction, who did so.

Finally, paragraph (i) of the affidavit omits that the "person" who returned from the residence to Defendant Barnum's vehicle was Vasgar. This paragraph then states that the informant handed the methamphetamine packet to Defendant Barnum and told Barnum that he had purchased it from Plaintiff. The parties also do not dispute that it was Vasgar who did so.

On the basis of this affidavit, which Defendants admit was partially false, a Gloucester Township Municipal Court judge approved the issuance of a warrant to search Plaintiff's residence. The resultant search revealed the presence of marijuana, methamphetamine, cocaine, Valium and drug paraphernalia. Plaintiff eventually plead guilty in New Jersey Superior Court, Law Division, to two counts of third degree possession with intent to distribute methamphetamine under N.J.S.A. Section(s) 2C: 35-5a(1) and 2C: 35-5b(9). His conviction was later overturned by the Superior Court of New Jersey, Appellate Division, after the state conceded that " `the affidavit contained a material falsehood, and that if the falsehood is excised . . . there is insufficient information to establish probable cause to support the warrant.' " (Appellant's Br. at App. E-2.2 to E-2.3.)

Plaintiff thereafter instituted this section 1983 action. Plaintiff alleged that the search warrant was invalid because it was based on a falsified affidavit, and thus, the search of his residence violated his fourth and fourteenth amendment rights. Defendants moved for summary judgment on the basis that as public officials, they were entitled to qualified immunity. In reviewing the affidavit, the district court excised the affirmative misrepresentations and supplied the omitted facts "to show the buy which actually took place on April 4, 1990." Id. at App. E-10.15. The district court then reevaluated the municipal court judge's probable cause finding and concluded that no genuine issue of material ...


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