Date: 01-24-2014

Case Style: Ronita McColley v. County of Rensselaer

Case Number: 12‐2220‐cv

Judge: Pooler

Court: United States Court of Appeals for the Second Circuit on appeal from the Northern District of New York

Plaintiff's Attorney: GENNARO DOMINICK CALABRESE (Terence L.
Kindlon, on the brief), Kindlon Shanks & Associates,
Albany, NY, for Appellee.

Defendant's Attorney: CRYSTAL R. PECK, Bailey, Kelleher & Johnson, P.C.,
Albany, NY, for Appellants.

Description: The County of Rensselaer (“Rensselaer”) and Rensselaer County Drug &
Gang Task Force (“Task Force”) Investigator, Michael Riley (“Riley”), appeal
from a judgment of the United States District Court for the Northern District of

2

New York (Lawrence Kahn, J.) denying summary judgment on their claims of
qualified immunity for purported violations of the Fourth Amendment and state
tort law based upon omissions made by Riley in the application for a search
warrant of Ronita McColley’s home. We conclude that disputed material factual
issues underlie the district court’s denial of qualified immunity, and thus dismiss
the appeal for lack of jurisdiction.

BACKGROUND

I.

Ronita McColley (“McColley”), a mother with no criminal history or
connection to criminality and an employee at the Center for Disability Services in
Albany, New York, lived with her young daughter in the first floor apartment of
396 First Street in Troy, New York, since 2003. On July 3, 2008, at approximately
6:00 a.m., McColley was awoken in her home by the sound of the City of Troy
Police Department Emergency Response Team (“ERT”) knocking down her door
and the explosion of a flash‐bang grenade. Dressed in all black, wearing face
masks, and carrying automatic weapons, the members of the ERT screamed for
McColley to get on the floor, but as there was not enough space for her to lie on
the floor, a member of the ERT instead shoved McColley face down onto her bed.

3

As she had been roused from sleep, McColley was clad in only a t‐shirt and
underwear. She repeatedly requested to cover herself but was repeatedly denied.
These events took place under the authorization of a no‐knock search warrant
secured by Riley on June 27, 2008.

In connection with a drug investigation in Troy, Riley submitted a search
warrant application to obtain four warrants to search four residences within the
city, including McColley’s home. The application was based upon information
received from a confidential informant (“CI”). On June 23, 2008, this CI, who had
performed four controlled buys for the Rensselaer County Drug and Gang Task
Force in the past, contacted Riley, advising him that he could purchase
crack‐cocaine from an individual identified as “Sport.” Riley and other members
of the Task Force set up a controlled buy, whereby the CI purchased
crack‐cocaine. On June 25, 2008, the CI again contacted Riley. He told Riley that,
on the previous day, he had been taken to the first floor apartment of 396 First
Street— McColley’s home—to purchase crack from Sport. The CI further
indicated that a drug dealer he had known for years, “Stink,” was also present at
396 First Street and used a King of Hearts playing card to remove cocaine from a
scale. The CI also noted there was a third male that he did not know in the

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apartment. The initial report from the CI and the related affidavit by Riley made
no mention of a woman being present in the apartment. Though the CI indicated
that he purchased drugs at 396 First Street on the singular occasion he had
visited, the Task Force identified the apartment as a “stash house.”

In addition to the information surrounding 396 First Street, the CI told
Riley about three locations in Troy that were maintained by Stink and
Sport—each of their two residences and an apartment leased to Tanisha Bruce,
who reportedly sold “approximately one hundred grams of marijuana per week”
provided by Stink. The CI informed Riley that he had visited Bruce’s apartment
over twenty times throughout the course of the previous six months with Stink
and that Stink had made drug deals on each occasion. Upon Riley asking the CI
whether Stink had “custody and control” of the apartment at 396 First Street, the
CI responded, “Yes.” The CI apparently did not describe the facts from which he
was able to come to this conclusion based on only one visit to 396 First Street,
merely indicating that as to 396 First Street, Bruce’s apartment, and Stink’s own
apartment, Stink “comes and goes as he pleases.”

On the same day, Riley conducted drive‐bys of each of the four locations in
order to have the CI identify them. After the CI had identified 396 First Street,

5

Riley and his supervisor, Investigator Arthur Hyde, directed undercover officers
in both stationary and drive‐by surveillance on the apartment. No narcotics or
other criminal activity was witnessed during the surveillance. Because the
residences were located in a high crime area, the stationary surveillance was not
conducted for extended periods of time. Following the identification of 396 First
Street and prior to his application for a search warrant, utilizing a Lexis Nexis
search and then running a criminal background check, Riley determined that
McColley was the resident at that address, that she had no criminal history, and
that she had a young child.

On June 27, 2008, Riley submitted an application for a search warrant for
396 First Street to Judge Turner of the City of Troy Criminal Court. The same
affidavit was offered in support of search warrants for each of the locations
identified by the CI. Riley identified the information provided by the CI as the
basis for the application. Riley stated that the CI had previously given
information that proved to be “both accurate and reliable” and which “led to five
previous drug purchases and two search warrants, which resulted in the seizure

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of illegal drugs and contraband.”1 The warrant application recounted the CI’s
description of his interaction with Stink and Sport in the apartment. The affidavit
also recounted the details relating to Bruce’s apartment, including that the CI had
visited the apartment between twenty and thirty times over the preceding sixmonth
period and that Stink or Sport made drug deals on each occasion. For
each of the search locations with the exception of McColley’s home, Riley
identified the resident individual and described his or her ties to drug dealing
and criminality. Riley never mentioned McColley’s identity, lack of criminal
history, or even the fact that there was a resident who lived at 396 First Street—as
opposed to the apartment being a location exclusively used by Stink in his drug
dealing enterprise. In the warrant application, Riley also made no mention of the
fact that surveillance had been conducted and yielded no evidence or even
suspicion of narcotics or other criminal activity.

The search of McColley’s home did not uncover any money, weapons,
drugs, drug‐related paraphernalia, or any evidence of criminality of any kind.

1 The CI had actually only made four previous controlled buys for the Task Force.
McColley points to this discrepancy as undermining that validity of the warrant, but, as the
district court concluded, this was not a material error.

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The ERT took only a National Grid electric and gas bill and a registration bill for
Hudson Valley Community College as fruits of the search.

II

After McColley filed the instant action, Defendants moved for summary
judgment on all counts. The district court granted summary judgment in part
and denied it in part. The court denied summary judgment to Riley on
McColley’s Fourth Amendment claim, determining that material questions of fact
prevented a finding of qualified immunity. The district court also denied
summary judgment on McColley’s related state tort claims as the viability of
those claims rested on the determination as to probable cause, which the court
already determined was subject to material questions of fact. Rensselaer and
Riley now appeal the denial of the claim of qualified immunity.

DISCUSSION

I.

“Ordinarily, orders denying summary judgment do not qualify as ‘final
decisions’ subject to appeal.” Ortiz v. Jordan, 131 S. Ct. 884, 891 (2011). There
exists a “limited exception to the categorization of summary judgment denials as
nonappealable orders,” id., for a “denial of a claim of qualified immunity, to the

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extent that it turns on an issue of law,” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

This Court may “exercise interlocutory jurisdiction if the defendant contests the
existence of a dispute or the materiality thereof, or . . . contends that he is entitled
to qualified immunity even under plaintiff’s version of the facts.” Tierney v.
Davidson, 133 F.3d 189, 194 (2d Cir. 1998). Such a denial of qualified immunity is
reviewed by this Court to determine whether “the qualified immunity defense
may be established as a matter of law.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.
2004) (internal quotation marks omitted). This “review extends to whether a
given factual dispute is ‘material’ for summary judgment purposes, . . . not . . .
whether a dispute of fact identified by the district court is ‘genuine.’” Id.

The district court determined that there were genuine issues of material
fact that prevented a finding of qualified immunity with respect to Riley’s
submission of the warrant application. Because the district court determined that
Riley made material omissions from the search warrant affidavit such that there
was an issue of fact as to whether there was probable cause for the warrant to
issue, it also found the same with respect to qualified immunity. While appellate
courts cannot generally review denials of summary judgment,

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an interlocutory appeal is available “to challenge the trial judge’s rejection
of the immunity defense where the defendant contends that on stipulated
facts, or on the facts that the plaintiff alleges are true, or on the facts
favorable to the plaintiff that the trial judge concluded the jury might find,
the immunity defense is established as a matter of law because . . . it was
objectively reasonable for him to believe that his action did not violate
clearly established law.”

Tierney, 133 F.3d at 194 (quoting Salim v. Proulx, 93 F.3d 86, 90‐91 (2d Cir. 1996)).
Jurisdiction may exist “where the lower court rules that material disputes of fact
preclude summary judgment on qualified immunity,” when a defendant contests
the materiality of the disputed facts or argues “he is entitled to qualified
immunity even under the plaintiff’s version of the facts.” Id.

In the instant case, Appellants contend that, accepting McColley’s version
of the facts, Riley is entitled to qualified immunity because the omissions he
made from the search warrant application did not alter the probable cause
analysis as a matter of law. In order to determine whether this Court has
jurisdiction, we must look to whether, as a matter of law, Riley’s actions—as
viewed through the facts taken in a light most favorable to McColley—amount to
a constitutional violation. If there is a question as to whether under these facts,
Riley’s omissions amounted to a constitutional violation, then this Court does not

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have jurisdiction because the denial of qualified immunity rested upon factual
issues.

II.

A plaintiff can demonstrate that her right not to be searched absent a
search warrant supported by probable cause “was violated where the officer
submitting the probable cause affidavit ‘knowingly and intentionally, or with
reckless disregard for the truth, made a false statement in his affidavit’ or omitted
material information, and that such false or omitted information was ‘necessary
to the finding of probable cause.’” Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir.
1993) (quoting Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991)).

Recklessness is inferred when the omitted information was “clearly critical” to
the determination of probable cause. Rivera v. United States, 928 F.2d 592, 604 (2d
Cir. 1991) (internal quotation marks omitted). “The materiality of a
misrepresentation or an omission in this context is a mixed question of law and
fact. The legal component depends on whether the information is relevant to the
probable cause determination under controlling substantive law. But the weight
that a neutral magistrate would likely have given such information is a question
for the finder of fact, so that summary judgment is inappropriate in doubtful

11

cases.” Velardi v. Walsh, 40 F.3d 569, 574 (2d Cir. 1994) (citations omitted). In
determining whether omitted information was necessary to the finding of
probable cause, “we look to the hypothetical contents of a ‘corrected’ application
to determine whether a proper warrant application, based on existing facts
known to the applicant, would still have been sufficient to support arguable
probable cause to make the arrest as a matter of law.” Escalera, 361 F.3d at 743‐44.

In performing the “corrected affidavit” analysis, “we examine all of the
information the officers possessed when they applied for the arrest warrant.” Id.
at 744 (citing Martinez v. City of Schenectady, 115 F.3d 111, 115 (2d Cir. 1997)).

While “the law does not demand that an officer applying for a warrant ‘volunteer
every fact that arguably cuts against the existence of probable cause,’” he must
“‘not omit circumstances that are critical’ to its evaluation.” Walczyk v. Rio, 496
F.3d 139, 161 (2d Cir. 2007).

When making a determination of whether probable cause exists to support
the issuance of a search warrant when the facts offered are based upon
information from a confidential informant, this Court examines the “totality of
the circumstances.” United States v. Smith, 9 F.3d 1007, 1012 (2d Cir. 1993)
(internal quotation marks omitted). “In performing this examination of the

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‘totality of the circumstances’ . . . the court may consider . . . ‘an informant’s
veracity, reliability and basis of knowledge,’ and the extent to which an
informant’s statements . . . are independently corroborated.” United States v.
Gagnon, 373 F.3d 230, 235 (2d Cir. 2004) (internal citations omitted). These
considerations, however, are not an exhaustive listing of what constitutes the
“totality of the circumstances.” Smith, 9 F.3d at 1012 (emphasis added).

III.

The district court determined that two material omissions from the warrant
application—the identity of McColley as the resident of 396 First Street and the
fact that both stationary and drive‐by surveillance had not led to the observation
of any criminal activity— undermined the finding of probable cause. Thus, the
court denied qualified immunity with respect to McColley’s Fourth Amendment
claim against Riley and the state tort claims against Riley and Rensselaer.2 This

2 McColley argued that Riley made five omissions from the warrant application that were
material and thus undermined the finding of probable cause: (1) errors as to the date the CI went
to 396 First Street and the date Riley learned about this trip; (2) an assertion that the CI had
accurately identified all of the addresses at issue, when in fact he gave the address at Sixth and
Glenn instead of 17 101st Street; (3) a claim that the CI had made five controlled buys, when in
fact the CI had made four previous controlled buys and one controlled buy in the instant case; (4)
omission of the identity and criminal history of McColley; and (5) omission of the fact that
surveillance of 396 First Street did not indicate any criminal activity. As to the other purported
omissions, the district court determined that reliance on these to disturb the finding of probable
cause would be just the sort of “hypertechnical” reading of the warrant that has been cautioned
against. See United States v. Ventresca, 380 U.S. 102, 109 (1965). We do not disturb that
analysis here.

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Court thus considers a “corrected affidavit” that would include these omitted
facts in analyzing whether there was probable cause for the warrant to issue.
Escalera, 361 F.3d at 743‐44.

We begin by noting that where a warrant affidavit is based upon
information provided by a confidential informant, any omissions become all the
more glaring because any material omission necessarily alters the “totality of the
circumstances” upon which the confidential information is to be assessed. Each
omitted fact necessarily alters this totality because such review demands that
courts consider the whole picture and not just the particular facts favored by the
officer applying for the warrant. In the face of information that is provided by a
confidential informant, each individual fact that composes the totality of the
circumstances is all the more likely to be “critical” to the evaluation of probable
cause. Walczyk, 496 F.3d at 161.

While it is indeed the case that where a warrant “does not report a prior
conviction for a particular crime, the magistrate assumes for purposes of
determining whether the government has carried its burden that no such
conviction exists,” Walczyk, 496 F.3d at 161, the pertinent omission here was not
merely McColley’s lack of criminal history. Rather, McColley herself was

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omitted entirely from the application. The issuing judge did not have the benefit
of assuming that “no such conviction exist[ed]” because he was not informed that
anyone other than Stink, who was the identified target of the drug investigation,
resided in or maintained the first floor apartment at 396 First Street. Riley, on the
other hand, fully knew that McColley, an individual with no criminal history and
no purported ties to the targets of the drug investigation, lived there with her
child. Especially in the face of Riley’s inclusion of the identity of the residents for
each of the other apartments and their present connection to the drug trade, the
omission of McColley’s existence is all the more glaring. As drafted by Riley,
with no mention of McColley, the warrant application makes it appear to the
issuing magistrate that Stink was the only individual with custody and control of
396 First Street. If the residents of 396 First Street were properly identified, a
reasonable issuing judge would have questioned the assertion that Stink had
“custody and control” over the apartment. Unlike Bruce’s apartment, there was
no similar claim of repeated visits at 396 First Street from which knowledge of
such custody could have been inferred. Including McColley’s identity in the
affidavit and attendant lack of connection to Stink, Sport, Bruce, and their drug
trade—either explicitly or implicitly by not describing any such history or

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connection—could indeed have altered an issuing magistrate’s assessment of the
totality of the circumstances with respect to the CI’s information about 396 First
Street. The exact weight that the judge would have given this information
remains a question of fact that prevents this Court from exercising jurisdiction
over the district court’s denial of summary judgment on the claim of qualified
immunity. Velardi, 40 F.3d at 574.

The other material omission from the warrant application made by Riley
was that the police conducted both stationary and drive‐by surveillance on 396
First Street and observed no criminal activity. As courts have recognized that
independent corroboration is an aspect of the totality of the circumstances from
which the credibility of a confidential informant can be assessed, Gagnon, 373
F.3d at 235, so too is information that expressly fails to corroborate a confidential
informant’s account. While the police may not have been required to corroborate
the CI’s assertions, once they undertook this surveillance and observed no such
criminal activity, this lack of corroboration should have been included in the
warrant application. The materiality of this information is underscored by the
common‐sense observation that if the surveillance had yielded evidence of
criminality, that information certainly would have been included in the warrant

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application and deemed to have been damning. The mere fact that the outcome
of the surveillance was not the one the police would have preferred does not
render the information immaterial.

The omission of this fact was not a failure to provide unnecessary
corroboration; it was a failure to provide known information that goes directly to
the credibility of the CI. A confidential informant’s credibility is plainly
relevant—even critical—to the probable cause determination, and thus the fact
that surveillance provided no evidence or even suggestion of criminal activity
should have been included in the warrant affidavit. Just as with the omission of
McColley’s identity, the omission of the unsuccessful surveillance altered the
“totality of the circumstances” under which the information provided by the CI
should have been assessed. And just as with the omission of McColley’s identity,
the weight that an issuing magistrate would have given to this information is a
question for the finder of fact. Velardi, 40 F.3d at 574.

The dissent’s insistence on the existence of arguable probable cause does
not alter our analysis. Arguable probable cause, a doctrine imported into this
Circuit’s corrected affidavit jurisprudence in Escalera, 361 F.3d at 744; see also
Opinion of Calabresi, J. at [7‐8], exists if “(a) it was objectively reasonable for the

17

officer to believe that probable cause existed, or (b) officers of reasonable
competence could disagree on whether the probable cause test was met.”
Escalera, 361 F.3d at 743 (internal quotation marks omitted). The dissent conflates
the questions of facts regarding the CI’s credibility with that of whether
reasonable officers could disagree as to the existence of probable cause.

Questions of fact exist in this case with respect to the reliability of the CI’s
information regarding 396 First Street. Whether reasonable officers would
disagree on whether there was probable cause is equally dependent on the
questions of fact previously identified. If the CI’s information regarding
McColley’s home was not reliable, then reasonable officers would not disagree as
to the lack of probable cause. The dissent would have the doctrine of arguable
probable cause swallow the entire rule of qualified immunity as well as the
related limitation on our jurisdiction. This cannot be.

The information omitted from the warrant application was indeed
“necessary to the finding of probable cause” because both McColley’s identity
and the lack of criminal activity observed at her home go directly to the “totality
of circumstances” review that underlies the assessment of probable cause based
upon information provided by confidential informants. The Appellants would

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have this Court conclude that once information has been provided by a
confidential informant who has proven reliable in the past, a warrant is
necessarily supported by probable cause when based upon information from that
confidential informant. This view misapprehends the “totality of circumstances”
test—in assessing whether there is probable cause based upon a confidential
informant’s reports, courts must look to all of the circumstances bearing upon the
information’s reliability. Smith, 9 F.3d at 1012.

In this case, McColley’s identity, the fact that the CI did not report that a
woman was present in the apartment,3 and the fact that attempts at independent
corroboration via surveillance showed no sign of criminal activity are all
omissions that bear upon the reliability of the overall information provided.
While we share the concerns raised in the concurrence with respect to the
particularly intrusive method of entry used in this case, see Opinion of Calabresi,

3 Rensselaer and Riley now assert that the CI did indeed report the
presence of a woman at the apartment. This assertion arose for the first time at
Riley’s deposition, however, the contemporaneous materials—the two voluntary
statements submitted by the CI and the affidavit submitted by Riley to the court
issuing the warrant—include no such claim. It is notable that such a potentially
critical fact, one that could have supported a claimed link between McColley and
the drug trade, was not proffered until the heat of litigation. As this Court must
consider the facts in the light most favorable to the plaintiff, we do not credit this
late assertion.

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J. at [15], issues of fact underlie the weight that the issuing judge would have
given the omitted information regardless of the method of entry employed. As
such, this case lies outside of the jurisdiction of this Court to perform
interlocutory review of the denial of summary judgment. The issue of qualified
immunity, including the question of reasonableness as to the type of warrant
sought and used, is not properly before us at this stage of the proceedings.

CONCLUSION

For all of the reasons discussed above, the appeal is dismissed for a lack of
jurisdiction.

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1
1 Calabresi, Circuit Judge:
2 Despite the fact that they reach opposite conclusions, my colleagues’
3 opinions both find strong support in our Court’s case law. This is because our
4 precedents in this area are as divided as our panel.
5 Judge Pooler would send this case to a jury, having identified a question of
6 fact: the weight a neutral magistrate would give to evidence omitted from
7 Investigator Michael Riley’s warrant affidavit. The existence of such a fact
8 question strips us of jurisdiction over this interlocutory appeal.
9 Judge Raggi would instead dismiss Plaintiff Ronita McColley’s Fourth
10 Amendment claim against Riley. She would do so either because an affidavit,
11 even without the omissions, would still have established probable cause for the
12 search of McColley’s home, or, alternatively, because some reasonable people
13 might find that such probable cause would have been established. This would, in
14 turn, suffice to give rise to “arguable probable cause,” which, she asserts, would
15 result in qualified immunity for Riley. This latter scenario, in which some would
16 and others would not find probable cause on the basis of the corrected affidavit,
17 is, of course, precisely what Judge Pooler describes as a factual dispute about the
18 weight of the omitted evidence. But while Judge Pooler concludes that such a
2
dispute strips us of jurisdiction, Judge 1 Raggi sees it as a basis for granting Riley
2 qualified immunity as a matter of law.
3 I write separately in part to underscore the divided precedents that give
4 rise to this dispute. I also write, however, because I believe that the particular
5 question to be asked in the case before us is not simply whether the warrant
6 would have been issued, but rather whether the magistrate would have issued
7 the precise kind of warrant Riley sought and obtained: namely, a “no-knock”
8 warrant to be executed at any time of the day or night.1 The question we must
9 ask, in other words, is not just whether the facts known to Riley established
10 probable cause to search for drugs at 396 First Street. The determinative question
11 in the instant case is whether those facts gave rise to a reasonable suspicion that a
12 normal, “knock-and-announce” search of McColley’s home would have been
13 dangerous or futile, see Richards v. Wisconsin, 520 U.S. 385, 394 (1997), and hence
14 that a no-knock intrusion—which allowed police to throw a stun grenade
1 As I explain in Part II, because of the privacy and property interests
implicated in no-knock searches, the Supreme Court has held that they are only
justified when the police “have a reasonable suspicion that knocking and
announcing their presence, under the particular circumstances, would be
dangerous or futile, or that it would inhibit the effective investigation of the
crime by, for example, allowing the destruction of evidence.” Richards v.
Wisconsin, 520 U.S. 385, 394 (1997).
3
through an apartment wi 1 ndow, break down its door, and burst in with automatic
2 weapons drawn—was justified in an apartment where a woman and child with
3 no criminal history lived and where no ongoing criminal activity had been
4 observed.
5 It may well be the case that, as a matter of law, the no-knock warrant Riley
6 sought would not have issued had Riley shared all the relevant information that
7 he knew. I am inclined to think so. But I need not go that far, however, as I
8 conclude that there is, manifestly, at least a question of fact as to whether such a
9 warrant would have issued. This is so because there is, at most, conflicting
10 evidence as to whether the officers had information that the suspects were armed.
11 Since a question of fact exists, I join Judge Pooler’s judgment that we lack
12 jurisdiction to hear this qualified immunity appeal. In other words: because the
13 issue of whether a warrant for an unannounced invasion of McColley’s apartment
14 would have issued had Riley provided in his warrant affidavit all the
15 information he had requires the resolution of factual questions, I join Judge
16 Pooler in concluding we do not have jurisdiction, and that this case ought to be
17 returned to the district court for a jury trial.
4
1 I.
2 The issue this case presents is whether a police officer should be held liable
3 for obtaining a warrant based on an affidavit that lacked relevant information
4 known to the officer.2 All of us agree that, to answer this question, we are to
5 imagine a corrected affidavit which included the omitted facts and then consider
6 whether, on the basis of such an affidavit, a magistrate would still have issued
7 the warrant. Where my colleagues—and previous panels of this Court—part
8 ways is on the question of whether this can be determined as a matter of law, or
9 whether the weight a magistrate would have given the omitted information is
10 instead a question of fact which must be decided by a jury. If it is the latter, the
11 factual nature of the dispute would strip us of jurisdiction over this interlocutory
12 appeal.
13 Troublingly, our Court’s precedents provide support for both conclusions.
14 A.
15 More than two decades ago, this Court stated that “[w]hether an item of
16 information is material or not [to a probable cause determination] is, in the
2 My colleagues dispute whether a general warrant could issue. As
indicated above, I believe that the more germane question to be whether a noknock
warrant—the kind of warrant that was actually issued in this case—was
justified.
5
context of a motion for 1 summary judgment, a mixed question of law and fact.
2 The legal component depends on whether the information is relevant to a given
3 question in light of the controlling substantive law. The factual component
4 requires an inference as to whether the information would likely be given weight
5 by a person considering that question.” Golino v. City of New Haven, 950 F.2d 864,
6 871 (2d Cir. 1991) (citations omitted).3 In Golino, we upheld then-District Court
7 Judge Cabranes’s decision to send the probable cause determination to a jury.
8 “The weight that a neutral magistrate would likely have given the [omitted or
9 misrepresented] information,” we said, “is not a legal question but rather is a
10 question to be resolved by the finder of fact.” Id. at 872.
11 In Velardi v. Walsh, 40 F.3d 569 (2d Cir. 1994), we explained further that
12 applying the corrected affidavit doctrine does not involve “review[ing] a
13 magistrate’s prior determination of probable cause, but rather try[ing] to predict
14 whether a magistrate would have found probable cause if he had been presented
15 with truthful information.” Id. at 574 n.1. Since “the weight that a neutral
3 Importantly, we have jurisdiction over an interlocutory order denying
qualified immunity only where the questions to be determined are legal, rather
than factual. See, e.g., Locurto v. Safir, 264 F.3d 154, 163 (2d Cir. 2001); Johnson v.
Jones, 515 U.S. 304, 314, 319-20 (1995); accord Rodriguez v. Phillips, 66 F.3d 470, 475
(2d Cir. 1995).
6
magistrate would likely have given 1 such information is a question for the finder
2 of fact,” we held that “summary judgment is inappropriate in doubtful cases.” Id.
3 at 574.4
4 We have restated this holding recently. See Southerland v. City of New York,
5 680 F.3d 127, 144 (2d Cir. 2012). As the Southerland Court said, quoting an earlier
6 opinion by Judge Raggi: “[A] court may grant summary judgment to a defendant
7 based on qualified immunity only if ‘the evidence, viewed in the light most
8 favorable to the plaintiffs, discloses no genuine dispute that a magistrate would
9 have issued the warrant on the basis of the corrected affidavits.’” Southerland, 680
10 F.3d at 144 (quoting Walczyk v. Rio, 496 F.3d 139, 158 (2d Cir. 2007)) (emphasis
11 added).
12 B.
13 Alongside these cases, however, runs another line of precedents that treat
14 determinations of probable cause as questions of law, to be made by the court
4 This, of course, left room for cases which were not doubtful. A factual
dispute might be so lopsided that it could be decided as a matter of law, as
Velardi recognized. See id. (“[I]f the evidence, viewed in the light most favorable
to the plaintiffs, discloses no genuine dispute that a magistrate would have issued
the warrant on the basis of the ‘corrected affidavits,’ then under the ordinary
standard for summary judgment, a qualified immunity defense must be upheld.”
(citation omitted)). Judge Raggi—in her first ground for decision—indicates that
she thinks that this is just such a lopsided case. See Dissenting Op., post at 3-21.
7
rather than a jury. 1 For example, in Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir.
2 1992), we said that “after the affidavit ha[d] been corrected in a light most
3 favorable to the plaintiffs, the district court should then have determined
4 whether as a matter of law it did or did not support probable cause.” Qualified
5 immunity should be granted at the summary judgment stage, Cartier instructed,
6 “if the affidavit accompanying the warrant is sufficient, after correcting for
7 material misstatements or omissions, to support a reasonable officer’s belief that
8 probable cause existed.”5 Id. (internal quotation marks omitted).
9 This standard was quoted, and restated, in Escalera v. Lunn, 361 F.3d 737,
10 743-44 (2d Cir. 2004). As Judge Raggi notes, Dissenting Op., post at 2, Escalera
11 held that “summary judgment should be granted to the defendant on the basis of
12 qualified immunity” whenever a corrected affidavit provides “an objective basis
5 Cartier’s instruction was cited in Smith v. Edwards, 175 F.3d 99 (2d Cir.
1999) (Sotomayor, J.), which called for courts, in material omission cases, first to
correct the warrant affidavit and “then determine whether as a matter of law the
corrected affidavit did or did not support probable cause.” Id. at 105 (quotation
marks and brackets omitted). Smith is ambiguous, however, as to whether
probable cause can always be determined as a matter of law once the facts in a
corrected affidavit are stipulated; the case could instead be read to mean no more
than that courts should employ the ordinary summary judgment test in regard to
the corrected affidavit, and ask whether all reasonable factfinders would come
out the same way on the question of probable cause.
8
to support arguable probable cause.”1 6 We wrote there—optimistically, I
2 believe—“Our case law is clear,” that when considering a qualified immunity
3 claim, “‘a court should put aside allegedly false material, supply any omitted
4 information, and then determine whether the contents of the ‘corrected affidavit’
5 would have supported a finding of [arguable] probable cause.” Id. (quoting
6 Martinez v. City of Schenectady, 115 F.3d 111, 115 (2d Cir. 1997)). Notably, the
7 bracketed addition—“[arguable]”—was Escalera’s. The case it quoted, Martinez
8 (like the case Martinez itself quoted, Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir.
9 1993)), had, instead, instructed courts to “determine whether the contents of the
10 ‘corrected affidavit’ would have supported a finding of probable cause”—not
11 arguable probable cause. Escalera is important, therefore, for having first made
12 “arguable probable cause” part of the corrected affidavits doctrine in our Circuit.
13 Judge Raggi’s opinion for the Court in Walczyk v. Rio followed Escalera in
14 this regard, observing that while probable cause for one of the searches at issue
15 in that case was lacking, due to stale information in the warrant affidavit,
6 Quoting Golino, Escalera says that “arguable probable cause” exists “‘if
either (a) it was objectively reasonable for the officer to believe that probable
cause existed, or (b) officers of reasonable competence could disagree on whether
the probable cause test was met.’” Escalera, 361 F.3d at 743 (quoting Golino, 950
F.3d at 870).
9
“defendants might still be entitled to claim qualified i 1 mmunity from liability for
2 damages if the search was supported by ‘arguable probable cause.’” 496 F.3d at
3 163. Notably, however, in Walczyk, the Court found that arguable probable cause
4 might obtain not because of some hypothetical disagreement among reasonable
5 officers about probable cause, but rather because it was unclear which of the
6 defendants in that case knew or should have known that the information in their
7 affidavit was stale. See Walczyk, 496 F.3d at 163.
8 This understanding of arguable probable cause is an eminently sensible
9 one. But it is not the understanding used in Escalera, and it is not the
10 understanding Judge Raggi employs in her opinion in the case now before us. In
11 these two instances, unlike in Walczyk, arguable probable cause is not used to
12 shield officers who may have been unaware of whatever evidence negated
13 probable cause. Instead, here, arguable probable cause is made to encompass
14 warrant affidavits which, though unable to establish probable cause, can be
15 excused as “close enough for government work.” This, I take it, is what Judge
16 Raggi means in the instant case when she asserts that, even if probable cause is
17 not established by the corrected affidavit, arguable probable cause still obtains
18 because “officers of reasonable competence could disagree” as to whether the
10
probable cause test was met. Dissenting 1 Op., post at 36 (quoting Escalera, 361 F.3d
2 at 743). Or, to put it still more generously for qualified immunity: arguable
3 probable cause obtains whenever it would not have been “plainly incompetent”
4 for an officer to find probable cause on the basis of the corrected affidavit. Id. at
5 23 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)) .7
7 Then-Judge Sotomayor took issue with this understanding of arguable
probable cause in her concurring opinion in Walczyk. As she explained:
Whether reasonably competent officers could disagree about the
lawfulness of the conduct at issue, however, is not the same question
the Supreme Court has repeatedly instructed us to consider:
whether it would be clear to a reasonable officer that his or her
conduct was unlawful in the situation he or she
confronted. . . . [O]ur requirement of consensus among all
reasonable officers departs from Supreme Court dictates and
unjustifiably raises the bar to liability for violations of constitutional
rights.
Asking whether “officers of reasonable competence could disagree”
shifts this inquiry subtly but significantly. Instead of asking whether
the defendant’s conduct was beyond the threshold of permissible
error, as the reasonable officer standard does, this inquiry affords a
defendant immunity unless a court is confident that a range of
hypothetical reasonably competent officers could not disagree as to
whether the defendant’s conduct was lawful. This standard is not
only more permissive of defendants seeking to justify their conduct;
it also takes courts outside their traditional domain, asking them to
speculate as to the range of views that reasonable law enforcement
officers might hold, rather than engaging in the objective
reasonableness determination that courts are well-equipped to make.
496 F.3d at 169-70 (Sotomayor, J., concurring) (quotation marks, citations, and
alterations omitted).
11
By distinguishing 1 this from the other understanding of arguable probable
2 cause, I do not mean to suggest that the understanding of probable cause that
3 Judge Raggi employs in the present case lacks precedential support. In fact, it can
4 be derived from Golino’s two-pronged description of qualified immunity, which
5 protects officers if “either (a) it was objectively reasonable for the officer to
6 believe that probable cause existed, or (b) officers of reasonable competence
7 could disagree on whether the probable cause test was met.” 950 F.2d at 870
8 (citing Malley, 475 U.S. at 341). Walczyk turned on the “objectively reasonable”
9 prong; Escalera and this case both implicate the “reasonable disagreement” prong.
10 The latter adds, however, a nimbus of protection around probable cause, which
11 allows officers to make objectively unreasonable probable cause determinations
12 so long as the officers themselves are reasonably competent.
13 To be clear: my objection to Judge Raggi’s understanding of arguable
14 probable cause is not that it lacks precedential support. Rather, the ample
15 support it has cannot be reconciled with the equally extensive precedents cited in
16 Judge Pooler’s opinion. It is to this conflict that I now turn.
12
1 C.
2 If corrected affidavits always established, or failed to establish, probable
3 cause so clearly that no reasonable judge or juror could find otherwise, our
4 Court’s precedents would cause no confusion. The confusion arises in the
5 middle: in cases where some reasonable judges or jurors would, and others
6 would not, find probable cause on the basis of the corrected affidavit. To put it
7 another way, confusion arises when reasonable people disagree about the weight
8 a magistrate would give the corrected affidavit.
9 Importantly, these two formulations describe the same underlying
10 questions. Disagreements about whether a corrected affidavit establishes
11 probable cause are identical to disputes over how much weight a magistrate
12 would have given to the omitted evidence. Such evidence, after all, is deemed
13 weighty enough to be material only if it would have altered the magistrate’s
14 probable cause determination. But this can only be decided by asking whether
15 probable cause actually remains once the evidence is considered. To call the
16 question of weight a genuine question of fact is merely to say that reasonable
17 people could disagree about whether probable cause would still obtain.
13
And therein 1 lies the problem. On the one hand, some of our cases do say
2 that determining the weight a magistrate would give omitted evidence is a
3 question of fact. And that question eludes summary judgment if, but only if,
4 reasonable factfinders could disagree about the answer—that is, about whether
5 probable cause would still be found. Yet, if reasonable people disagree about the
6 existence of probable cause, then arguable probable cause has, by definition, been
7 established under others of our cases! Since arguable probable cause exists
8 whenever reasonable people disagree about the existence of actual probable
9 cause, no case of this sort should ever go to a jury. Either a court will decide
10 probable cause (one way or the other) as a matter of law, or the court will find
11 that probable cause is open to reasonable dispute and will on that basis dismiss
12 the case, again as a matter of law, on qualified immunity grounds. But, to
13 continue around the circle of our cases, this, of course, conflicts with the clear
14 holding of Velardi that “doubtful cases” must be sent to a jury. 40 F.3d at 574.
15 Judge Raggi is well aware of Velardi’s holding; she refers to it, in fact, both
16 in Walczyk, see 496 F.3d at 158, and her opinion here, Dissenting Op., post at 6
17 (“To the extent Velardi observed that the weight a judicial officer would give
18 omitted information is a question of fact, disputes as to that question might
14
require a jury trial in ‘doubtful cases’ of 1 probable cause . . . .”).8 She does not
2 explain, however, how “doubtful cases of probable cause” can ever be anything
3 other than “cases of arguable probable cause.” It would follow that in such
4 circumstances, unless defendants somehow fail to raise a qualified immunity
5 defense, a jury trial would never be required.
6 By identifying, as I believe I have, this conflict in our cases, I do not mean
7 to suggest that one side, rather than the other, is the “correct” one. It is only to
8 say that we are dealing with two confusing, and at times confused, lines of cases.
9 Our Court would do well to provide clarity in this area. But the task is not an
10 easy one, and, in any event, this case does not require us—and thus does not
11 allow us—to undertake it. We need not resolve the tension I have described
12 because the only question this case requires us to confront—whether the
13 particular warrant that was granted still would have issued had the affidavit
8 In the preceding sentence, Judge Raggi states, citing Walczyk, 496 F.3d at
157, that “the existence of probable cause is generally a matter of law for the court.”
Dissenting Op., post at 6 (citing Walczyk, 496 F.3d at 157) (emphasis added).
“Generally” here would seem to suggest that sometimes, at least—presumably in
those “doubtful cases” mentioned in the next sentence—a jury might be needed.
But what Judge Raggi does not acknowledge, even as she cites Velardi, is that her
notion of arguable probable cause swallows all such doubtful cases, ensuring
that Velardi’s promise—sometimes—of a jury trial will in fact never be realized.
15
been more complete—can be easily ans 1 wered, I believe, under either line of our
2 case law.
3 II.
4 Although my colleagues disagree about whether the information Riley
5 omitted from his affidavit might have changed a magistrate’s mind about the
6 existence of probable cause to search McColley’s apartment for drugs, the
7 question in this case, and hence in their dispute, is whether Riley violated
8 McColley’s Fourth Amendment right to be free from unreasonable searches and
9 seizures. Significantly, our Court has said that “[t]he method of an officer’s entry
10 into a dwelling is among the factors to be considered in assessing the
11 reasonableness of a search under the Fourth Amendment.” United States v. Tisdale,
12 195 F.3d 70, 72 (2d Cir. 1999) (per curiam) (emphasis added).
13 Here, the method of entry was more akin to a military invasion than the
14 knocking and entering envisioned, and generally required, by our law. See Wilson
15 v. Arkansas, 514 U.S. 927, 931-32 (1995). As Judge Pooler describes in her opinion,
16 members of Troy’s Emergency Response Team, at six o’clock one morning,
17 shattered the window of McColley’s living room and threw a flash-bang grenade
18 inside before breaking down the door and storming in, brandishing automatic
16
weapons. Because 1 McColley was given no warning before their entry, she was
2 wearing only a t-shirt and underwear when the officers burst in. Thus attired,
3 she was handcuffed and forced to lie face-down on her bed while an officer
4 guarded her, weapon drawn, and a dog searched her room. By the time the
5 police had left—having discovered only an electric bill and McColley’s college
6 course schedule—McColley’s furniture had been overturned, her rug and wall
7 bore burn marks, her bookshelf, window, and doors had been broken, and her
8 toiletries and clothes, along with her daughter’s, had been strewn across the floor.
9 The trauma caused by a search of this sort was well described by a
10 unanimous Supreme Court in Richards v. Wisconsin:
11 While it is true that a no-knock entry is less intrusive than, for
12 example, a warrantless search, the individual interests implicated by
13 an unannounced, forcible entry should not be unduly minimized. . . .
14 [T]he common law recognized that individuals should be provided
15 the opportunity to comply with the law and to avoid the destruction
16 of property occasioned by a forcible entry. These interests are not
17 inconsequential. Additionally, when police enter a residence
18 without announcing their presence, the residents are not given any
19 opportunity to prepare themselves for such an entry. . . . The brief
20 interlude between announcement and entry with a warrant may be
21 the opportunity that an individual has to pull on clothes or get out
22 of bed.
23
24 520 U.S. at 393 n.5 (citations omitted).
17
Because no-knock searches im 1 pinge so seriously upon both privacy and
2 property interests, they are justified only if police “have a reasonable suspicion
3 that knocking and announcing their presence, under the particular circumstances,
4 would be dangerous or futile, or that it would inhibit the effective investigation
5 of the crime by, for example, allowing the destruction of evidence.”9 Id. at 394;
6 Tisdale, 195 F.3d at 72. In Richards, the Supreme Court specifically disallowed
7 blanket exceptions to the common law knock-and-announce requirement; in
8 particular, the Court struck down the Wisconsin Supreme Court’s rule “that
9 police officers are never required to knock and announce their presence when
10 executing a search warrant in a felony drug investigation.” Id. at 387-88
11 (emphasis in original).
12 In his application to search McColley’s apartment, Riley requested a
13 warrant that could be “executed at any time of the day or night” and that
14 authorized officers “to enter the premises to be searched without giving notice of
15 his [sic] authority and purpose.” J.A. 188. These requests were based on (what
16 Riley described as) his reasonable cause to believe (1) that “[t]he property sought
9 We note that, as Judge Raggi states in her dissent, the police need only
reasonable suspicion, and not probable cause, that knocking and announcing
would be dangerous or futile. As we will demonstrate below, there exists an
issue of fact that must be resolved before even this standard is met.
18
may be easily and 1 quickly destroyed or disposed of” and (2) that giving notice
2 “may endanger the life or safety of the executing Police Officers.” Id. According
3 to Riley’s affidavit, these beliefs were based on “the physical properties of [the]
4 contraband”; the “common practice of persons who are involved in the illicit use
5 and trafficking of controlled substances to attempt to remove, destroy or dispose
6 of said controlled substances if notice . . . is given”; and Riley’s personal
7 experience that giving notice allows suspects “time to prepare themselves,”
8 thereby endangering officers’ safety. Id.
9 In addition to this boilerplate, Riley included in his application that 396
10 First Street was under the custody and control of “Stink,” a drug dealer and
11 “soldier” for another dealer, “Chuck.” “Stink” was also said to sell marijuana
12 and crack cocaine out of 396 First Street. Although Riley described the residents
13 of the other apartments for which he obtained a search warrant, he failed to tell
14 the magistrate that McColley and her then four-year-old daughter lived at 396
15 First Street. And although Riley described the female resident of another targeted
16 apartment as someone who “deals approximately one hundred grams of
17 marijuana a week,” J.A. 177, he did not tell the magistrate that the known residents
18 of 396 First Street had no criminal history. Riley, finally, failed to tell the
19
magistrate that police surveillance 1 had failed to observe any criminal activity at
2 all during surveillance of McColley’s apartment carried out over the course of
3 three days.
4 Each of these omissions is legally relevant, and highly so, to the decision of
5 whether to issue a no-knock warrant. Given that the apartment to be searched was
6 home to a woman and child with no criminal record and, moreover, did not
7 appear to be a hub of ongoing criminal activity, it would certainly seem possible
8 for the search to have been “conducted at a time when the only individuals
9 present in a residence ha[d] no connection with the drug activity and thus
10 [would] be unlikely to threaten officers or destroy evidence.” Richards, 520 U.S. at
11 393. Riley’s justification for the inactivity at McColley’s apartment—his stated
12 belief that it was a “stash house,” J.A. 312—itself weighed against the no-knock
13 warrant, since large quantities of stashed narcotics would be difficult to dispose
14 of quickly. See id. (“The police could know that the drugs being searched for
15 were of a type or in a location that made them impossible to destroy quickly.”).
16 As the Richards Court said of such situations, “the asserted governmental
17 interests in preserving evidence and maintaining safety may not outweigh the
18 individual privacy interests intruded upon by a no-knock entry.” Id.
20
Judge Raggi’s argument, in her dissent, 1 that the “readily disposable form”
2 of the drugs “in zip-loc baggies,” Dissenting Op., post at 28, justified the no3
knock warrant therefore not only goes a long way toward creating the kind of
4 blanket justification for no-knock searches in narcotics investigations that the
5 Supreme Court specifically disapproved of in Richards—for when are drugs, by
6 their nature compact in size, not in small packages?—but it also ignores the
7 record evidence that it was in this case quite unlikely that all of the drugs could
8 have been disposed of had a knock-and-announce warrant been issued. That
9 evidence includes the very fact that 396 First Street was allegedly a “stash” house
10 (which Officer Riley defined generally as a location where the traffickers “would
11 keep money, drugs, and weapons,” J.A. 312); that the CI’s recollection was that 7
12 grams of cocaine were being cut with a playing card in open view on an ironing
13 board at 396 First Street; that 100 grams or more of marijuana were allegedly
14 being sold each week from at least one of the residences; and that every time the
15 CI had visited the apartments, “Stink” had made crack cocaine sales. Evidence
16 like this shows that narcotics were out in the open, and that enough drugs were
17 present (given the fact that they were “stash[ed]” there, J.A. 312) to make it most
21
unlikely that the time it 1 takes to knock and announce would be so harmful to the
2 finding of drugs as to justify an unannounced military-style invasion.
3 In light of the facts known to Riley when he submitted his warrant
4 affidavit, it therefore appears possible, as a matter of law, that the governmental
5 interests Riley asserted here did not outweigh the privacy and property interests
6 his no-knock entry infringed. If police were able to invade the quiet home of a
7 law-abiding woman and her child without knocking and identifying themselves,
8 simply because they believed that the home contained drugs, then it is unclear
9 when the police could ever not enter unannounced, at least when drugs were
10 being investigated. Yet we know from Richards that blanket exceptions to the
11 knock-and-announce requirement are unconstitutional, even in regard to drug
12 searches. To search without first knocking, the government must reasonably
13 suspect that something more than drugs awaits inside. A woman with no known
14 criminal ties and her small child hardly strike me as that “something more.”
15 III.
16 Thus far, I have argued that each potential argument supporting a “no17
knock warrant” was lacking, because there was no convincing record evidence
18 that the drugs, sold daily and warehoused in the residence, were easily
22
disposable and because 1 there would be no reason to believe that a mother and a
2 child with no criminal record posed a danger justifying a “no-knock” warrant.
3 However, one remaining argument requires special consideration.
4 Judge Raggi asserts that a corrected affidavit would support a reasonable
5 suspicion of danger—and therefore justify a no-knock warrant—based on the
6 officers’ belief that Sport, Stink, and Chuck might have been present and armed at
7 396 First Street. See Dissenting Op., post at 31-33. Judge Raggi admits that the
8 original affidavit only included as justification for a no-knock warrant Riley’s
9 general knowledge that drug dealers often possess firearms—precisely the kind
10 of general knowledge that, the Supreme Court has told us, cannot support a no11
knock warrant. See Richards, 520 U.S. at 387-88. She then, however, expands the
12 universe to be considered and, based on other record evidence, concludes that a
13 corrected affidavit would indicate, from the CI’s communications, “case-specific”
14 knowledge that “Sport, Stink, and Chuck all had access to and possession of
15 firearms.” Dissenting Op., post at 31-32. 10 On this basis, Judge Raggi determines
10 I do not here dispute Judge Raggi’s trek into the record. It is worth
noting that in Walczyk, Judge Raggi and the panel were comfortable deciding the
issue of probable cause as a matter of law because they could do so on the face of the
affidavits. See 496 F.3d at 157 (“In this case, there can be no dispute as to what
facts the defendants relied on to establish probable cause for the challenged
arrest and searches; they are memorialized in warrant affidavits. Thus, whether
23
that the more specific requirement t 1 hat the Supreme Court has held was needed
2 to justify a no-knock intrusion would be present in a corrected affidavit. Judge
3 Raggi rightly does not contend that the officers gleaned this information from the
4 written “voluntary statement” of the CI, but instead from an “operational plan”
5 drafted by Riley, in which he makes passing reference to the notion that the
6 traffickers had access to firearms. See id. at 33.
7 Significantly, however, in testimony Riley makes no such assertion that he
8 believed there would be armed persons at 396 First Street. When asked in his
9 deposition whether there was anything that made him think in particular that
10 there would be weapons in this apartment, Riley responded, “Nothing specific.”
11 J.A. 411. He then went on to explain—as he had in the operational plan—that the
12 confidential informant knew some of the persons involved in the drug trade here
13 to possess firearms. Id.
the affidavits, on their face, demonstrate probable cause, is a question of law.”).
Here, the affidavit does not include information about the traffickers being
armed, on its face or otherwise, and Judge Raggi’s foray into the record in a quest
to decide the issue as a matter of law seems to stretch beyond the bounds of
Walczyk. Indeed, here it is both the case that the fact cannot be gleaned from the
affidavit and that the fact is disputed by the officers themselves, as I explore
below, which makes deciding it as a matter of law all the more troubling . . . to
put it mildly.
24
But the record then becomes 1 more complicated: for even this statement by
2 Riley is contradicted. During Officer Rosney’s deposition, he said that the officers
3 had no “specific information from the [confidential] informant that [the persons
4 within the residences] were armed.” J.A. 259. He attributed the officers’ belief
5 that Sport, Stink, and Chuck may have been armed to the fact that 396 First Street
6 was a “stash house,” which made the officers therefore think that the persons
7 within it “would be armed and dangerous” (i.e., based on the kind of generic
8 data held to be insufficient by the Supreme Court!). J.A. 140.
9 The record evidence is therefore mixed on the key—and for me,
10 fundamental—question of whether or not the officers had a general or specific
11 belief that Sport, Stink, and Chuck had firearms, and therefore whether knocking
12 and announcing would have been dangerous. This is a constitutionally13
determinative issue, precisely because, as the Court explained in Richards, a
14 general belief that drug traffickers are armed because drug traffickers typically
15 are armed cannot support a no-knock warrant. See 520 U.S. at 394. Just what the
16 officers knew therefore becomes a critical question of fact. Whether they had, as
17 Rosney says, only a general belief that the persons would be armed simply
18 because they were involved in narcotics trade or whether they had, as Riley says,
25
a particularized belief based on 1 the confidential informant’s statements or other
2 evidence, is crucial and cannot be concluded as a matter of law based on the record
3 before us.
4 I therefore think there is a critical issue of material fact for the jury and that
5 we must return the case to the district court on that ground. That said, I want to
6 make clear that it may well be the case, even apart from the factual dispute, that
7 the officers would have had no reason to think that these drug traffickers—even
8 if they had access to firearms—would be at McColley’s residence armed in the
9 wee hours of the morning. There may have been, in short, no particular—or, to
10 use Riley’s word, “specific”—reason to suspect that knocking and announcing at
11 the home of a mother without a criminal record in the early morning hours,
12 when it would be likely that “the only individuals present in [the] residence have
13 no connection with the drug activity,” Richards, 520 U.S. at 393, would have been
14 dangerous. In light of this and the other circumstances suggesting that a military15
like invasion into a the home of a mother without a criminal record was
16 unjustified, one could reasonably be disposed to conclude as a matter of law,
17 regardless of how the factual dispute about firearms is resolved, that a
18 magistrate would not have properly issued a “no-knock” warrant for the search
26
of McColley’s apartment, and on that basis one 1 might be well inclined to affirm
2 the district court’s denial of Riley’s motion for summary judgment.
3 But we need not, and hence should not, go that far. In light of the fact that
4 there is conflicting evidence on whether the officers had a particularized belief—
5 as against only the generalized conjecture that drug traffickers typically have
6 firearms—that Sport, Stink, and Chuck were armed, there is indisputably a
7 question of fact on an important issue. And that question precludes summary
8 judgment and deprives us of jurisdiction over this interlocutory appeal.
9 This conclusion, moreover, seems to me to be required even under Judge
10 Raggi’s more capacious standard of “arguable reasonable suspicion.” See Escalera,
11 361 F.3d at 743. That is, the question of fact as to whether the officers had a
12 particularized belief that the drug traffickers were likely to be armed bears
13 directly upon whether the officers could have held an “objectively reasonable”
14 belief they would be in danger if they knocked and announced at 396 First Street.
15 See id.; see also Holeman v. City of New London, 425 F.3d 184, 191 (2d Cir. 2005). We
16 cannot here decide what, under the Supreme Court’s standard, the officers
17 reasonably suspected until we resolve the essentially and unavoidably factual
18 conflict reflected in their inconsistent statements as to whether or not they
27
thought the drug traffickers had f 1 irearms and would be armed. Because there is a
2 “dispute as to what facts [the officers] relied on,” Walcyk, 496 F.3d at 157, we
3 cannot conclude “as a matter of law, that [a] corrected affidavit would have been
4 sufficient,” Smith, 175 F.3d at 105-106 n.5, to support a no-knock warrant. And
5 this is so regardless of whether one follows Judge Raggi’s or Judge Pooler’s line
6 of cases as to “arguable” probable cause; indeed, it must be resolved before we
7 can find that reasonable suspicion existed.
8 This disputed and material question of fact is enough for me to conclude
9 that summary judgment was inappropriate under either line of this Circuit’s cases
10 and, therefore, to join Judge Pooler’s holding that we have no jurisdiction over
11 the issue of qualified immunity at this time, and that this case must return to the
12 district court for further proceedings, and possibly proceed to trial.
12-2220-cv
McColley v. County of Rensselaer
REENA RAGGI, Circuit Judge, dissenting:
My colleagues Judges Pooler and Calabresi conclude, albeit for different
reasons, that we lack jurisdiction over this interlocutory appeal from a denial of
qualified immunity. Judge Pooler thinks that certain omissions from defendant
Michael Riley’s affidavit in support of a search warrant for premises inhabited by
plaintiff Ronita McColley raise questions of fact as to probable cause to search at all.
Judge Calabresi thinks the omissions undermine authorization to conduct the search
on a “no knock” basis. I respectfully disagree with both conclusions.
Whatever weight a judicial officer might give the omitted facts here at issue,
it would not be enough to give rise to a “genuine dispute that a magistrate would
have issued the warrant.” Velardi v. Walsh, 40 F.3d 569, 574 (2d Cir. 1994)
(emphasis omitted) (concluding that affiant entitled to qualified immunity because
factual errors, even if deliberate, could not possibly have affected magistrate’s
decision to issue warrant). This is because an affidavit that includes the omitted
information demonstrates probable cause to search as a matter of law. See Smith v.
Edwards, 175 F.3d 99, 105 (2d Cir. 1999) (Sotomayor, J.) (instructing that “[i]f
1
probable cause remains” after warrant is corrected, plaintiff has suffered no
violation of Fourth Amendment rights (internal quotation marks omitted)). The
same conclusion obtains with respect to no‐knock execution of the warrant, which
required a showing only of reasonable suspicion—not probable cause—that law
enforcement officers would be endangered or evidence would be destroyed if
officers announced their presence before entering the target premises.
Even if there were any doubt as to actual probable cause or reasonable
suspicion in this case—which I submit there is not—the determinative issue for
purposes of qualified immunity is not what weight the issuing judge would assign
to omitted facts in reviewing a corrected affidavit, but whether an officer in
defendant’s position could have held an objectively reasonable—even if
mistaken—belief that the corrected affidavit demonstrated the necessary probable
cause and reasonable suspicion. This is evident from Escalera v. Lunn, 361 F.3d 737
(2d Cir. 2004), which held that if a corrected affidavit provides “an objective basis
to support arguable probable cause, remaining factual disputes are not material to
the issue of qualified immunity and summary judgment should be granted to the
defendant on the basis of qualified immunity.” Id. at 744. As Escalera explained,
2
“[o]nly if the corrected affidavit would not support a reasonable officer’s belief that
probable cause existed would the identified factual disputes be material” so as to
warrant denial of qualified immunity. Id. (internal quotation marks omitted); see
also Messerschmidt v. Millender, 132 S. Ct. 1235, 1244 (2012) (stating that qualified
immunity provides officials with “breathing room to make reasonable but mistaken
judgments” (internal quotation marks omitted)); Malley v. Briggs, 475 U.S. 335, 341
(1986) (stating that qualified immunity is available where “officers of reasonable
competence could disagree” on the legality of the action at issue in its particular
factual context).
Upon review of a corrected affidavit, I identify no material question of fact as
to the existence of probable cause to search or reasonable suspicion to do so on a
no‐knock basis, much less any dispute as to the existence of arguable probable cause
or reasonable suspicion. Accordingly, I would exercise jurisdiction and order that
judgment be entered in favor of Riley on grounds of qualified immunity. See
Escalera v. Lunn, 361 F.3d at 743 (stating that we have jurisdiction to award
summary judgment where no material factual dispute exists as to qualified
immunity); Tierney v. Davidson, 133 F.3d 189, 194–95 (2d Cir. 1998) (same). I
therefore respectfully dissent.
3
A. The Corrected Affidavit
To explain my disagreement, I start by discussing the warrant at issue, the
complained‐of omissions from the supporting affidavit, the “corrected affidavit”
standard of review, and the contents of a corrected affidavit in this case.
On June 27, 2008, a Troy city court judge issued search warrants for four
premises reportedly used for drug trafficking: (1) 520 Second Avenue, Apt. 5;
(2) Building 5 Griswold Heights, Apartment 17; (3) 17 101st Street, 1st floor
apartment; and (4) 396 First Street, 1st floor apartment. In support of warrants to
search the last three locations, defendant Riley, a criminal investigator with the
Rensselaer County District Attorney’s Office, swore to a common affidavit based
largely on information recently obtained from a confidential informant (“CI”).
In challenging the search of the First Street apartment where she resided with
her daughter, plaintiff McColley contends that Riley misled the issuing judge by
omitting certain facts from his supporting affidavit, notably, that (1) McColley, a
person with no criminal history, was the record resident of the First Street
apartment; and (2) periodic street surveillance starting on June 25, 2008, failed to
reveal any evidence of drug activity at the premises. See Pooler Op., ante at 13. For
4
McColley to demonstrate that these omissions made the warrant‐authorized search
of her home unreasonable under the Fourth Amendment, she must show not only
that Riley “knowingly and intentionally” omitted the specified information from his
warrant affidavit, but also that the omitted facts were “necessary to the finding of
probable cause” to search and to the finding of reasonable suspicion to do so on a
no‐knock basis. Franks v. Delaware, 438 U.S. 154, 155–56 (1978); see Escalera v.
Lunn, 361 F.3d at 743.
To make the latter assessment, we look to a hypothetical “corrected affidavit,”
produced by adding to the original warrant affidavit the omitted information
highlighted by McColley as well as any other pertinent omitted information. See
Escalera v. Lunn, 361 F.3d at 744 (“In performing this correcting process, we
examine all of the information the officers possessed when they applied for the
arrest warrant.”). We must then determine whether the corrected affidavit does or
does not demonstrate the necessary probable cause and reasonable suspicion. See
Smith v. Edwards, 175 F.3d at 105.
This is a de novo inquiry, not limited to the deferential “substantial basis”
review we conduct when a plaintiff challenges a search incident to a warrant on the
5
grounds that it was supported by an insufficient, but not deliberately misleading,
affidavit. Velardi v. Walsh, 40 F.3d at 574 n.1 (internal quotation marks omitted).
Where there is no dispute as to what facts a judicial officer relied on—or in the case
of a corrected affidavit, should have relied on—in making a probable cause or
reasonable suspicion determination, the existence of probable cause and reasonable
suspicion is generally a matter of law for the court. See Walczyk v. Rio, 496 F.3d 139,
157 (2d Cir. 2007). To the extent Velardi observed that the weight a judicial officer
would give omitted information is a question of fact, disputes as to that question
might require a jury trial in “doubtful cases” of probable cause or reasonable
suspicion; but, as Justice (then Judge) Sotomayor explained in Smith v. Edwards,
that conclusion does not obtain “where a court is able to determine, as a matter of
law, that the corrected affidavit would have been sufficient to support a finding of
probable cause” or reasonable suspicion. 175 F.3d at 105–06 n.5 (noting that in both
Velardi and Smith, court was able to decide, as a matter of law, that corrected
affidavit stated probable cause). Thus, if probable cause and reasonable suspicion
remain after a warrant is corrected to add omitted information, “no constitutional
violation of plaintiff’s Fourth Amendment rights has occurred.” Id. at 105 (internal
6
quotation marks omitted); see United States v. Rajaratnam, 719 F.3d 139, 147 (2d Cir.
2013); see generally Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995)
(“There can be no federal civil rights claim for false arrest where the arresting officer
had probable cause.”). Indeed, where a corrected warrant demonstrates probable
cause or reasonable suspicion as a matter of law, “any disputed factual issues cannot
be deemed ‘material,’ and summary judgment is warranted” for the defendant.
Smith v. Edwards, 175 F.3d at 105.1
1 Judge Calabresi is mistaken in suggesting that our precedent is ambiguous
as to whether probable cause can be decided as a matter of law based on a corrected
affidavit. See Calabresi Op., ante at 4–14. Certainly Golino v. City of New Haven,
950 F.2d 864 (2d Cir. 1991), which he cites, does not signal ambiguity. There,
omitted facts contradicted virtually every fact reported to establish probable cause.
See id. at 867 (contrasting, for example, (1) reported incriminating statements of
murder target’s ex‐wife with her unreported inconsistent, and even contradictory,
statements; (2) reported informant statement linking target and victim with
informant’s unreported testimonial denial of statement; and (3) reported general
description of killer with unreported eyewitnesses’ detailed descriptions not fitting
target, as well as noting complete failure to disclose that killer’s blood type was
known and had not yet been compared to target’s (which comparison would
subsequently exculpate target)). In such circumstances, where a corrected affidavit
presents conflicts of fact determinative of probable cause, a reviewing court could
not decide probable cause as a matter of law without knowing how the issuing
magistrate might have resolved those conflicts—itself a question of fact. See id. at
872. Indeed, unless a magistrate could reasonably discount the
contradictions—which is hardly evident from the corrected affidavit in
Golino—probable cause would be defeated as a matter of law. Thus, the corrected
affidavit, viewed most favorably to the plaintiff, could not admit a finding of
7
A corrected affidavit would here disclose the following facts:2
(1) The CI providing information referenced in the affidavit was a person
known to law enforcement officials.
(2) The CI had a track record for reliability, having provided information on
previous occasions leading to four controlled purchases of drugs and supporting
two search warrants that resulted in the seizure of drugs and contraband.
(3) The CI had recently provided authorities with eyewitness information
about illegal drug dealing by persons known to him as “Stink” and “Sport,” both of
probable cause or even arguable probable cause. See Golino v. City of New Haven,
761 F. Supp. 962, 971–72 (D. Conn. 1991) (Cabranes, D.J.) (concluding that court
could not decide as a matter of law whether “it was objectively reasonable for
[officers] to believe that they were acting in a fashion that did not violate [Golino’s]
established federally protected right[s]” (internal quotation marks omitted)).
By contrast, here, the omitted facts do not contradict, but only supplement,
reported facts. Moreover, for reasons discussed further in this opinion, those
supplemental facts, even when viewed favorably to McColley, cannot bear a weight
sufficient to defeat the probable cause otherwise established, much less arguable
probable cause. Thus, our precedent makes clear that both probable cause and
arguable probable cause can be decided favorably to Riley as a matter of law based
on the corrected affidavit. See United States v. Rajaratnam, 719 F.3d at 149–50 &
n.11, 157 & n.21; Walczyk v. Rio, 496 F.3d at 157; Escalera v. Lunn, 361 F.3d at 744;
Smith v. Edwards, 175 F.3d at 105; Velardi v. Walsh, 40 F.3d at 574.
2Regular type is used to detail facts reported in the original affidavit; italics are
used to detail facts known but omitted from that affidavit.
8
whom worked for “Chuck.” The CI described Stink, whom the CI had known since
childhood, as a medium‐skinned black male with visible eczema, 22 years of age,
weighing 190–200 pounds. He described Sport as a dark‐skinned black male in his
twenties, with short black wavy hair, weighing 155 pounds, and 5‘8“ tall. The CI
provided a cell phone number for Sport.
(4) On June 23, 2008, under the supervision of law enforcement authorities, the
CI made a controlled purchase of crack cocaine from Sport at 520 Second Avenue,
Apartment 5, a location that the CI described as Sport’s residence.
(5) The CI subsequently reported to authorities that approximately one hour
after this Second Avenue buy, Sport brought the CI to the first floor apartment at 396
First Street to show the CI where he got his drugs.
(6) The CI stated that Stink has custody and control over the First Street
apartment, as well as over the first floor apartment at 17 101st Street and Apartment
5 at 520 Second Avenue, using all three locations to sell crack cocaine and marijuana.
(7) The affiant knew from training and experience that drug dealers often keep
their drugs at and operate out of several locations in order to prevent loss from
police seizures or home invasions by competing drug dealers.
9
(8) The CI described 396 First Street as an unpainted brick edifice with yellow
exterior doors, five buildings south of “Nature’s Pub.” He also identified the
building from a photograph, which was then attached to the warrant affidavit.
(9) An electronic records check revealed the registered resident of the First Street
apartment to be Ronita McColley, a person with no criminal record who lived at the premises
with her daughter.
(10) The CI reported that when he entered the First Street apartment with
Sport, the CI saw Stink using a King of Hearts playing card to scrape approximately
7 grams of powder cocaine from a scale. Stink then placed this cocaine into a baggie.
Meanwhile, an unknown black male in the apartment gave Sport a sandwich‐sized
baggie filled with smaller black zip‐loc baggies of crack cocaine. The CI reported
that these zip‐loc baggies were similar in appearance to those involved in the CI’s
recent purchases of crack cocaine from Sport at 520 Second Avenue.
(11) The CI advised that on approximately 20 to 30 occasions over the last six
months, and as recently as the past week, he had been present in Apartment 17 of
Building 5 Griswold Heights and, on each occasion, had seen Stink deal drugs from
that location.
10
(12) The CI reported that the registered tenant of the Griswold Heights
apartment was Tanisha Bruce, who lived at the location with her two children,
mother, and sister. The CI stated that Bruce dealt approximately 100 grams of
marijuana per week supplied to her by Stink. He further stated that Stink
occasionally stayed at the Griswold Heights Apartment and had custody and control
over drug activity at that site.
(13) The CI stated that Stink regularly resided with his girlfriend in the first
floor apartment at 17 101st Street. The CI reported having been inside that
apartment on two occasions within the past two weeks when Stink sold crack
cocaine there.
(14) Between June 25 and June 27, 2008, law enforcement authorities conducted
periodic street surveillance of the outside of each of the premises for which search warrants
were sought. That surveillance revealed no evidence of criminal activity.
(15) The affiant knew from personal experience that, by giving prior notice of
execution of a warrant, suspects will have time to prepare themselves against
officers’ forced entry, which may endanger the lives and safety of the officers and
persons inside the residence.
11
(16) The affiant knew from training and experience that drug dealers often
possess firearms and other weapons to safeguard their illegal activities.
(17) The CI had reported that Stink, Sport, and Chuck all had access to and possessed
firearms.
(18) The affiant also knew from personal experience that it is common practice
for drug dealers to attempt to destroy or dispose of drugs upon notice of execution
of a search warrant.
B. Probable Cause To Search
1. The Corrected Affidavit Demonstrates Probable Cause as a
Matter of Law
In considering whether such a corrected affidavit demonstrates probable
cause to search as a matter of law—thereby precluding any genuine dispute as to
whether a judge would have issued a search warrant for the First Street
apartment—it is useful to recall the standard for probable cause. Probable cause to
search exists where circumstances indicate a “fair probability that contraband or
evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S.
213, 238 (1983); see Stansbury v. Wertman, 721 F.3d 84, 89 (2d Cir. 2013) (stating that
“court examines each piece of evidence and considers its probative value, and then
12
looks to the totality of the circumstances to evaluate whether there was probable
cause” (alteration and internal quotation marks omitted)). This “fluid” standard
does not demand “hard certainties” but only facts sufficient to establish the sort of
“fair probability” on which “reasonable and prudent men, not legal technicians,
act.” Illinois v. Gates, 462 U.S. at 231–32, 238; see Florida v. Harris, 133 S. Ct. 1050,
1055 (2013) (observing that probable cause is “practical,” “common‐sensical,” “allthings‐
considered” standard).3
Here, there can be no question as to the “fair probability” that evidence of
drug dealing would be found in the First Street apartment. The corrected
affidavit—like the original one—reported current drug dealing at that location, as
3 Probable cause is not backward looking. Thus, the results of a search are
immaterial to a determination of whether the search was supported by probable
cause. See United States v. Ramirez, 523 U.S. 65, 71 n.2 (1998) (“In determining the
lawfulness of entry and the existence of probable cause we may concern ourselves
only with what the officers had reason to believe at the time of their entry.”
(emphasis in original; alteration and internal quotation marks omitted)); United
States v. Di Re, 332 U.S. 581, 595 (1948) (“[A] search is not to be made legal by what
it turns up. In law it is good or bad when it starts and does not change character
from its success.” (footnote omitted)). Just as the discovery of incriminating
evidence in the course of a search cannot establish probable cause where none
existed, the failure to discover such evidence cannot undermine a satisfactory
showing of probable cause. Thus, the failure to find drugs at any of the premises
searched in this case is immaterial to our assessment of probable cause.
13
well as at other sites associated with the same group of dealers. Because the
information came from a CI, the “core question in assessing probable cause” to
search these premises was whether the information supplied by the informant was
sufficiently “reliable.” United States v. Wagner, 989 F.2d 69, 72 (2d Cir. 1993).
Informant reliability is properly evaluated by reference to the totality of the
circumstances. See Illinois v. Gates, 462 U.S. at 232–33. While Judge Pooler’s
opinion repeatedly references this standard, it in fact fails to apply it, discussing
only how the omitted facts might cast doubt on the reliability of the CI’s
information. Illinois v. Gates, however, specifically requires that a reliability inquiry
be holistic and recognizes that deficiencies in one area may well be compensated for
by a strong showing in another. See id.; United States v. Steppello, 664 F.3d 359, 364
(2d Cir. 2011) (holding district court erred in considering “individual facts in
isolation” when evaluating probable cause). In this case, the totality of the facts in
the corrected affidavit so strongly supports the reliability of the CI’s information
that, even with the addition of the omitted matters, probable cause to search the First
Street apartment is established as a matter of law.
14
To begin, the CI was a person known to law enforcement officers and not an
anonymous tipster, a circumstance that we have recognized weighs in favor of
reliability. See United States v. Elmore, 482 F.3d 172, 180–81 (2d Cir. 2007)
(observing that information from known source is generally entitled to more weight
than that from anonymous tipster because police can better assess former’s
reputation and hold him accountable if allegations turn out to have been fabricated);
United States v. Gagnon, 373 F.3d 230, 236 (2d Cir. 2004) (same).
In addition to being known, the CI here had a proven record of reliability,
having provided information in the past that had led to two search warrants
resulting in drug seizures and to four controlled purchases of narcotics. We have
observed that information provided by an informant from whom the government
“has received consistently reliable information in the past is likely to be sufficiently
reliable to establish probable cause.” United States v. Wagner, 989 F.2d at 73; see
also United States v. Sidwell, 440 F.3d 865, 869 (7th Cir. 2006) (holding probable
cause existed where “informant had completed numerous other controlled buys in
the past and provided, on those occasions, accurate and reliable information”).
15
Moreover, the information provided by this known, reliable CI as to drug
dealing in each of the premises for which search warrants were sought was based
on his own first‐hand observations, a circumstance we have recognized as “easily”
establishing probable cause. United States v. Wagner, 989 F.2d at 73 (stating
probable cause “easily established” where informant described occasions on which
he personally witnessed drug‐related activities in suspect’s home). That conclusion
is only reinforced by the fact that the CI’s information here was frequently detailed
insofar as it included the street names, physical descriptions and, in one case, the cell
phone number, for the two persons whose drug deals the CI had witnessed in the
locations for which warrants were being sought. See Illinois v. Gates, 462 U.S. at 234
(recognizing that detailed information entitled to great weight in assessing
reliability); United States v. Hernandez, 85 F.3d 1023, 1028 (2d Cir. 1996) (holding
that CI’s “detailed eye‐witness report of crime,” such as description of apartment,
its occupants, and drug transactions, established probable cause (internal quotation
marks omitted)).
Indeed, in the case of drug dealing at the First Street premises, the CI’s
account was particularly detailed. He reported that “Sport” had taken him to the
16
First Street apartment approximately one hour after the CI had made a successful
controlled purchase of crack from Sport at the dealer’s Second Avenue residence.
Sport told the CI that the First Street apartment was where he got his drugs and,
indeed, the CI saw an unknown man in the First Street apartment supply Sport with
baggies of crack that were packaged similarly to the crack the CI had acquired from
Sport earlier that same day in the controlled purchase. Further, the CI reported that,
in the First Street apartment, he also saw “Stink,” a person known to him since
childhood, using a playing card, specifically identified as the King of Hearts, to
scrape what the CI estimated to be 7 grams of cocaine from a scale into a baggie.
The CI related occasions when he had seen Stink deal drugs from two other
locations, one his home and the other the residence of a woman identified as Tanisha
Bruce.
Additionally, the information provided was current, the CI having witnessed
the drug dealing in the First Street apartment only a few days before a search
warrant was initially sought and obtained. Cf. Rivera v. United States, 928 F.2d 592,
602 (2d Cir. 1991) (observing that in cases of ongoing narcotics operations, intervals
of weeks or months between described act and warrant application did not
necessarily make information stale).
17
Finally, the information supplied was corroborated in varying respects.
Insofar as the CI reported that Stink and Sport used various locations to conduct
their drug activity, this found corroboration in Riley’s own training and experience,
which confirmed that drug dealers frequently operated out of various locations to
minimize the risk that they would lose their supplies to police searches or rivals’
thefts at a single location. See United States v. Clark, 638 F.3d 89, 98 (2d Cir. 2011)
(recognizing even partial corroboration to be relevant to assessment of reliability);
United States v. Canfield, 212 F.3d 713, 719–20 (2d Cir. 2000) (same). Moreover, the
CI had successfully made a controlled purchase of crack from Sport on June 23, 2008,
a circumstance we have recognized as “powerful corroborative evidence” of the CI’s
reliability in reporting first‐hand observations of other drug trafficking by the
supplier or his confederates. United States v. Wagner, 989 F.2d at 73. Such a
conclusion is especially warranted here, where it was the seller of the drugs
involved in the controlled purchase who, within an hour of that transaction, brought
the CI to the First Street apartment, representing it to be the place where he got his
drugs. We also have denominated as “self‐corroborating” detailed reports of drug
dealing witnessed first‐hand by an informant, such as the CI here provided with
18
respect to his observations inside the First Street apartment. United States v. Smith,
9 F.3d 1007, 1013 (2d Cir. 1993).
By comparison, the omitted information, even when viewed in the light most
favorable to McColley, does little to undercut the reliability of the CI’s account.
Insofar as the record resident of the First Street premises was Ronita McColley, a
woman with no criminal record and a young child, the issuing judge already knew
that Sport and Stink dealt drugs out of various premises, including one other
apartment—at Griswold Heights—where a single mother, Tanisha Bruce, resided
with her children. Thus, it could not have made any difference to a judge’s probable
cause determination to learn that the registered occupant of the First Street premises
was also a single mother.4 Insofar as the CI implicated Bruce in drug trafficking,
whereas McColley had no criminal record, the latter fact raises no genuine dispute
as to whether the judge would have issued a search warrant. The probable cause
question was not whether there was a fair probability to think that McColley herself
4 To the extent the CI described Stink as being in “custody and control” of the
three apartments for which search warrants were being sought, the issuing judge
already knew from the information provided about Tanisha Bruce that this did not
signal exclusive custody or control or preclude another person from being the record
resident of the apartment.
19
was dealing drugs, but whether there was a fair probability to think that evidence
of drug dealing would be found in her apartment. That probable cause question
must be answered “yes” in light of the reliable CI’s detailed account of the drug
activity he witnessed inside the First Street apartment on June 23, 2008, and his
identification of two of the men involved in that activity.
In short, even if we cannot know the precise weight an issuing judge might
give omitted facts about McColley’s identity as the record resident of the First Street
apartment, we do know, in light of the totality of circumstances strongly indicating
the reliability of the CI’s information, that the omissions could not bear a weight
sufficient to raise a genuine issue as to the existence of probable cause. See generally
United States v. Rajaratnam, 719 F.3d at 149–50 & n.11, 157 & n.21 (affirming district
court’s holding that alleged misstatements and omissions, including omission of
informant’s criminal history, were not material in light of other indicia of
informant’s reliability, such as fact that informant was known and had made
statements against penal interest, and government was able to corroborate some
statements); Velardi v. Walsh, 40 F.3d at 575 (finding omitted facts that drug
supplier had not been seen armed and that no drug transactions had taken place at
20
residence to be searched “were simply not material” where affidavits did not imply
that supplier was armed or dealing drugs from his home and totality of evidence
otherwise established probable cause as matter of law).
The same conclusion applies with even more force to omitted information
about the unproductive results of sporadic police surveillance on the exteriors of the
premises for which search warrants were sought. Our precedent instructs that an
“otherwise sufficient application for a search warrant need not relate unproductive
or unsuccessful efforts in the course of the investigation.” United States v. Smith,
9 F.3d at 1014. In any event, even when the surveillance results are included in a
corrected affidavit, they cannot raise a serious question as to the existence of
probable cause because those results indicate only that between June 25 and June 27,
2008, on those occasions when officers had the outside of 396 First Street in view,
they did not see any sign of criminal activity. To state the obvious, this hardly
precluded drug trafficking on June 23; much less did it foreclose the fair probability
that drugs or evidence of prior drug trafficking would be found inside the premises.
That probability was so plainly established by the detailed, eyewitness account of
a reliable CI that whatever weight a judge might give the surveillance results, it
would not be enough to raise a genuine issue of fact as to probable cause.
21
In concluding otherwise, Judge Pooler observes that any omissions from a
warrant based on information provided by a confidential informant must be deemed
“glaring” and “all the more likely to be ‘critical’ to the evaluation of probable cause.”
Pooler Op., ante at 13–14 (quoting Walcyzk v. Rio, 496 F.3d at 161). This reliance on
Walczyk is misplaced. What that case states—in a context unrelated to confidential
informants—is that “the law does not demand that an officer applying for a warrant
‘volunteer every fact that arguably cuts against the existence of probable cause,’ as
long as he does ‘not omit circumstances that are critical’ to its evaluation.” Walczyk
v. Rio, 496 F.3d at 161 (quoting Brown v. D’Amico, 35 F.3d 97, 99 (2d Cir. 1994)).
McColley’s identity and the surveillance results were not critical to an assessment
of probable cause in this case. While these facts did not reinforce the reliability of
the CI’s information about drug dealing at the First Street apartment, neither did
they undermine that reliability as strongly established in this case by the CI’s past
record for reliability, direct participation in a controlled purchase of drugs from
Sport, and detailed eyewitness account of drug dealing by Sport and Stink in the
First Street apartment within an hour of the controlled purchase as well as in other
premises for which warrants were sought within the preceding two weeks.
22
In sum, on the totality of circumstances presented in the corrected affidavit,
I conclude that probable cause to search was so plainly established as a matter of law
as to admit no genuine issue of fact as to whether a judge would issue the requested
warrants.
2. The Corrected Affidavit Demonstrates Arguable Probable Cause
Assuming arguendo that the corrected affidavit did not demonstrate probable
cause as a matter of law to search the First Street apartment for evidence of drug
dealing, the record will not admit a conclusion that Riley lacked the arguable
probable cause that would still entitle him to qualified immunity. Our court has
recognized arguable probable cause to exist “if either (a) it was objectively
reasonable for the officer to believe that probable cause existed, or (b) officers of
reasonable competence could disagree on whether the probable cause test was met.”
Escalera v. Lunn, 361 F.3d at 742 (internal quotation marks omitted); accord
Gonzalez v. City of Schenectady, 728 F.3d 149, 157 (2d Cir. 2013); see also Caldarola
v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002) (“[I]n situations where an officer may
have reasonably but mistakenly concluded that probable cause existed, the officer
is nonetheless entitled to qualified immunity.”).
23
Here, Riley knew that (1) a known CI, with (2) a record of past reliability, had
reported to investigating officers that within an hour of (3) making a successful
controlled purchase of drugs from Sport on June 23, 2008, (4) Sport had taken the CI
to the First Street apartment where Sport indicated he got his drugs, and (5) therein,
the CI witnessed Sport and Stink (a person known to the CI since childhood)
package and receive drugs. Riley further knew that the CI (6) had provided detailed
descriptions of Sport and Stink, the building on First Street where he was taken, and
the activities he had witnessed therein. He also knew that the CI had (7) reported
seeing Stink deal drugs on several occasions over the last two weeks at two other
identified locations. In light of precedent recognizing each of these enumerated
circumstances as indicative of the reliability of the CI’s information, see Illinois v.
Gates, 462 U.S. at 234; United States v. Rajaratnam, 719 F.3d at 149–50 & n.11, 157 &
n.21; United States v. Clark, 638 F.3d at 98; United States v. Elmore, 482 F.3d at
180–81; United States v. Sidwell, 440 F.3d at 869; United States v. Gagnon, 373 F.3d
at 236; United States v. Canfield, 212 F.3d at 719–20; United States v. Hernandez, 85
F.3d at 1028; United States v. Smith, 9 F.3d at 1013; United States v. Wagner, 989 F.2d
at 73; Rivera v. United States, 928 F.2d at 602, we can hardly label it “plainly
incompetent” for an officer in this case to think that there was a “fair probability”
24
that evidence of drug trafficking would still be found in the First Street apartment
within a week of the CI’s report, Malley v. Briggs, 475 U.S. at 341 (holding that
qualified immunity protects “all but the plainly incompetent or those who
knowingly violate the law”).
Nor will the omitted facts permit a different conclusion. Riley knew from his
own experience that drug dealers often used multiple sites to store and deal drugs,
and the CI had already identified one single mother, Tanisha Bruce, whose residence
Stink used to deal drugs. Thus, Riley’s discovery that the First Street apartment was
registered to another single mother was hardly reason for him to retreat from a fair
probability determination that evidence of the drug dealing witnessed by the CI
would be found at that location. As for McColley’s lack of criminal history, we
cannot conclude that no reasonable officer would credit a reliable CI’s eyewitness
account of drug dealing in a particular location simply because the record resident
did not have a criminal record.
Nor can we conclude that no reasonable officer would think he had probable
cause to search an apartment where a reliable CI recently witnessed drug activity
simply because sporadic surveillance of the exterior of the premises a few days later
yielded no results. Quite apart from the fact that such surveillance could not detect
25
activities inside the First Street apartment, probable cause to search the premises did
not require evidence of criminal activity on the dates of the surveillance; it required
only a fair probability that evidence of criminal conduct occurring at some time be
found on the premises. A reasonable officer was entitled to conclude that such a
probability was satisfactorily established by the CI’s eyewitness account of Sport’s
and Stink’s activities in the First Street apartment on June 23, 2008, within an hour
of the CI’s controlled purchase of crack cocaine from Sport at another location.
Thus, even if the corrected affidavit does not state probable cause as a matter
of law—which I submit it does—it certainly provides “an objective basis to support
arguable probable cause.” Escalera v. Lunn, 361 F.3d at 744. Because the existence
of arguable probable cause renders any factual disputes arising out of omitted
information “not material to the issue of qualified immunity,” I respectfully submit
that the inability to discern what weight a judge might give the omitted information
in making a probable cause determination is immaterial to qualified immunity. See
id.; accord Gonzalez v. City of Schenectady, 728 F.3d at 155–58 (awarding qualified
immunity where arguable probable cause existed for arrest, even though actual
probable cause was absent); see also Velardi v. Walsh, 40 F.3d at 573 (“[P]laintiffs
may not unwrap a public officer’s cloak of immunity from suit simply by alleging
26
even meritorious factual disputes relating to probable cause, when those
controversies are nevertheless not material to the ultimate resolution of the
immunity issue.” (internal quotation marks omitted)).
In the absence of a material factual dispute as to Riley’s entitlement to
qualified immunity on McColley’s probable cause challenge, I respectfully submit
that we have jurisdiction to award him summary judgment. See Escalera v. Lunn,
361 F.3d at 743; Tierney v. Davidson, 133 F.3d at 194–95.
C. Reasonable Suspicion To Execute a No‐Knock Search
In concurring in the decision to dismiss for lack of jurisdiction, Judge
Calabresi concludes that McColley must be denied qualified immunity because the
corrected affidavit fails to support a no‐knock entry of the First Street apartment.
See Calabresi Op., ante at 15–27.5 I cannot agree.
1. The Corrected Affidavit Demonstrates Reasonable Suspicion
The Supreme Court has construed the Fourth Amendment to incorporate the
common law requirement that police officers entering a dwelling must announce
their identity and purpose before attempting forcible entry. See Wilson v. Arkansas,
5 Insofar as McColley challenged the degree of force used in executing the noknock
warrant, the district court dismissed this claim as insufficient as a matter of
law. This ruling is not before us on this appeal.
27
514 U.S. 927, 930 (1995); see also 18 U.S.C. § 3109 (codifying knock‐and‐announce
requirement with respect to entries by federal law enforcement officers). For an
unannounced, or no‐knock, entry to be constitutionally reasonable, police “must
have a reasonable suspicion that knocking and announcing their presence, under the
particular circumstances, would be dangerous or futile, or that it would inhibit the
effective investigation of the crime by, for example, allowing the destruction of
evidence.” Richards v. Wisconsin, 520 U.S. 385, 394 (1987). The Supreme Court has
declined to recognize categorical exceptions to this reasonable suspicion
requirement. Notably, in Richards it rejected the argument that drug felony cases
warranted a categorical exception based on the “culture” of violence and evidence
destruction that is characteristic of that criminal activity. Id. at 392–94. While
Richardson holds that police must make a reasonable suspicion showing “whenever
the reasonableness of a no‐knock entry is challenged,” the Court there emphasized
that “[t]his showing is not high,” requiring only a “‘reasonable belief based on
specific and articulable facts.’” Richards v. Wisconsin, 520 U.S. at 394 (quoting
Maryland v. Buie, 494 U.S. 325, 337 (1990), and citing Terry v. Ohio, 392 U.S. 1, 30
(1968)).
28
Applying that standard here, I note that the original affidavit reported not
only Riley’s general experience with drug dealers’ trying to destroy evidence upon
learning that law enforcement officers were entering the premises, but also the CI’s
specific report that the drugs stored at the First Street apartment were packaged in
readily disposable form, i.e., zip‐loc baggies containing small quantities of crack
cocaine. Judge Calabresi dismisses these case‐specific facts with a seemingly
rhetorical question: “when are drugs, by their nature compact in size, not in such
small packages?” Calabresi Op., ante at 20. In fact, our case law easily demonstrates
that drugs are frequently packaged in much larger sizes than were evident in this
case. See, e.g., United States v. Roberts, 660 F.3d 149, 153–54 (2d Cir. 2011)
(discussing seizure of five one‐kilogram “bricks” of cocaine); United States v.
English, 629 F.3d 311, 313–14 (2d Cir. 2011) (discussing 5 and 10 kilogram packages
of cocaine); United States v. Navas, 597 F.3d 492, 495–96 (2d Cir. 2010) (discussing
230 kilograms of cocaine hidden under metal roof of trailer); United States v.
Valentine, 530 F.3d 88, 89 (2d Cir. 2008) (discussing cocaine concealed inside
furniture); United States v. Beltempo, 675 F.2d 472, 474 (2d Cir. 1982) (discussing 16
pounds of heroin concealed in false bottoms of suitcases). In any event, the Supreme
Court in Richards specifically recognized “the easily disposable nature of the drugs”
29
in that case as a factor justifying the no‐knock entry at issue. 520 U.S. at 396 (holding
that petitioner’s “apparent recognition of the officers combined with the easily
disposable nature of the drugs” justified “decision to enter without first announcing
their presence and authority”). The same case‐specific conclusion applies here. See
also United States v. Banks, 540 U.S. 31, 40 (2003) (recognizing “opportunity to get
rid of cocaine” as highly relevant to reasonableness of forced entry); United States
v. Bynum, 362 F.3d 574, 581 (9th Cir. 2004) (concluding no‐knock entry justified
where officers possessed “reasonable suspicion” that defendant “might dispose of
the small rocks of crack cocaine” at issue upon becoming aware of their presence).
In urging otherwise, Judge Calabresi submits that the First Street apartment
was “allegedly a ‘stash’ house,” where “enough drugs were present” to make it
“quite unlikely that all of the drugs could have been disposed of had a knock‐andannounce
warrant been issued.” Calabresi Op., ante at 20 (emphasis in original).
The facts cited by Judge Calabresi to support this conclusion, in fact, belie it. See id.
The 7 grams of cocaine that the CI saw in the First Street apartment translates to onequarter
ounce. Even assuming that 10 or 20 times that amount was “stashed” in the
First Street apartment at any given time, this suggests a retail operation whose onhand
drug quantities could easily be disposed of quickly. Indeed, the conclusion is
30
reinforced by Judge Calabresi’s reference to the 100 grams or more of marijuana
trafficked each week from the Griswold Heights apartment, which totals
approximately one ounce. In any event, I hesitate to conclude that no‐knock
warrants should issue only when there is a risk that all the drugs sought will be
destroyed if police first announce their presence. Drug quantity is, after all, an
element of various federal drug trafficking crimes. See 21 U.S.C. § 841(b). Thus,
even the partial destruction of drugs might “inhibit the effective investigation” of
such crimes so as to support a no‐knock warrant. Richards v. Wisconsin, 520 U.S.
at 393. Indeed, in Richards, the Supreme Court suggested that it was the
impossibility of destroying the drugs being sought, not the unlikelihood of complete
destruction, that might preclude a no‐knock warrant. See id. (observing that where
“drugs being searched for were of a type or in a location that made them impossible
to destroy quickly,” no‐knock warrant would not be necessary (emphasis added)).
The facts thus far discussed were, in any event, all known to the magistrate
who authorized a no‐knock search. His finding of a reasonable suspicion of
destruction is not undermined when the facts of McColley’s record residence and
lack of criminal record are added to a corrected affidavit. As the First Circuit has
sensibly observed, “even an occupant not complicit in the drug crime” at issue may
31
have a “strong motive to destroy evidence” upon learning that police are about to
search the premises. United States v. Antrim, 389 F.3d 276, 281 (1st Cir. 2004).
In addition to reasonable suspicion of evidence destruction, moreover, a
corrected affidavit supports a reasonable suspicion of danger if officers had knocked
and announced their presence before executing the four no‐knock warrants obtained
on June 27, 2008. While the original affidavit reported Riley’s general knowledge,
based on training and experience, that drug dealers often possess firearms and may
defend against police entries if given notice of a search warrant’s execution, the
corrected affidavit indicates Riley’s specific knowledge, communicated to him by
the CI, that Sport, Stink, and Chuck all had access to and possession of firearms. See
Escalera v. Lunn, 361 F.3d at 744 (stating that correcting process examines “all”
information possessed by officers at time of warrant application). This was a
case‐specific, articulable basis for suspecting that the officers might confront armed
persons if they knocked and announced their presence before entering the First
Street apartment. See generally United States v. Ramirez, 523 U.S. 65, 71 (1998)
(upholding no‐knock entry where informant notified police that violent prison
escapee, with access to weapons, might be in home); United States v. Brown, 52 F.3d
32
415, 421–22 (2d Cir. 1995) (holding no‐knock entry reasonable where confidential
informant told police that violent cocaine dealer was armed).
Judge Calabresi suggests that there is a dispute of fact as to whether the CI in
fact reported that Sport, Stink, and Chuck had access to and possession of firearms
because Officer Rosney, one of the officers who participated in the search of the First
Avenue apartment, in deposition testimony, answered “No” when asked if he had
“any specific information from the informant” that individuals in that premises
“were armed.” J.A. 259; see Calabresi Op. at 19. But as Rosney’s deposition
testimony further shows, he did not participate in debriefing the CI, see J.A. 138–39,
so the fact that he had no specific information from the CI about the targets’ firearms
possession hardly undermines Riley’s representation as to what he was told by the
CI. In his own deposition, Riley was careful to testify that the information he had
about weapons in the First Avenue Apartment was “nothing specific,” which is
consistent, not at odds, with Rosney’s deposition testimony. J.A. 411. But, as Riley
made clear in his very next sentence, what he did know was that “[t]he informant,
because he’s known some of these individuals for many, many years, knows them
to carry firearms.” J.A. 411. Thus, the Operational Plan that Riley prepared on June
33
30, 2008, advised all officers participating in the July 3 searches that the “C/I states
that Targets all have access to & possess firearms.” J.A. 149. Because Rosney was
one of the officers listed to receive a copy of this plan, his negative response to a
deposition query about CI information can only be understood to indicate either that
he had forgotten what he had read in the Operational Plan or, like Riley himself, did
not consider it “specific information” of weapon possession, or did not consider it
information that he himself had obtained from the CI. In any event, it cannot be
construed to create a genuine dispute of fact as to Riley’s own report of what the CI
told him about the targets’ access to and possession of firearms. Thus, Riley’s
Operation Plan statement is properly included in a corrected affidavit.
What police did not know was in which of the four apartments the targets
would be found at the precise time of the searches. In this respect, Riley’s original
affidavit told the judge who initially authorized the four no‐knock entries that,
based on the CI’s information, Sport was thought regularly to reside at the 520
Second Avenue apartment while Stink was thought regularly to reside at the 17
101st Street premises, although occasionally staying at the Griswold Heights
apartment. The issuing judge was told that Stink controlled the latter two premises
34
as well as the First Street apartment, but he was never told that Stink, or any of the
other confederates resided at or stayed in the First Street apartment. Rather, the
judge was provided with facts indicating that the confederates stored drugs at the
First Street location, and that the CI had witnessed them packaging and retrieving
drugs from that location within the last week. On these circumstances, the issuing
judge could reasonably have concluded that, even if the target drug dealers did not
reside at the First Street apartment, there was a sufficient possibility that one or
more of them would be present and armed at the time of any search to support a
reasonable belief that officers who knocked and announced their presence before
entering would be at risk of harm.
No different conclusion obtains when the warrant affidavit is corrected to
identify McColley as the record resident of the First Street apartment. As just stated,
the issuing judge knew that Sport and Stink both resided elsewhere. Further, as
noted with respect to probable cause, the issuing judge knew that these drug dealers
used another apartment occupied by a single mother and her children to deal drugs.
Thus, identifying McColley and her daughter as the residents of the First Street
apartment would not have negated the facts supporting a reasonable suspicion of

35

danger to the officers from announced entry. See generally United States v. Basham,
268 F.3d 1199, 1204 (10th Cir. 2001) (holding reasonable suspicion supporting
no‐knock warrant remained when application corrected to include presence of
children in home). Indeed, their presence in the First Street apartment would only
have enhanced the risk of harm, to McColley and her daughter as well as the
officers, if armed drug dealers on the premises were alerted to police execution of
a search warrant.

In sum, because the “particular circumstances” of this case raised a real
possibility that (1) executing officers could confront armed drug traffickers in any
of the four apartments to be searched, and (2) the drugs thought to be stored in the
First Street apartment were easily disposable, there was a sufficient basis to satisfy
the “not high” requirements of reasonable suspicion articulated in Richards. 520
U.S. at 394; see also United States v. Washington, 340 F.3d 222, 227 (5th Cir. 2003)
(holding confidential informant report that “suspect was selling drugs and was
typically armed . . . sufficient to establish a reasonable suspicion of danger”).

2. The Corrected Affidavit Supports Arguable Reasonable
Suspicion

Even if the corrected affidavit did not thus demonstrate reasonable suspicion
to support a no‐knock entry into the First Street apartment, Riley would still be

36

entitled to qualified immunity as long as the affidavit established arguable
reasonable suspicion, i.e., that it was objectively reasonable for Riley to believe that
reasonable suspicion existed or that officers of reasonable competence could
disagree as to whether the reasonable suspicion test was met. See Escalera v. Lunn,
361 F.3d at 743; Holeman v. City of New London, 425 F.3d 184, 191 (2d Cir. 2005)
(holding that even if “facts were insufficient to satisfy probable cause or reasonable
suspicion,” officer’s “belief that they were was objectively reasonable, and therefore
protected by qualified immunity”); see also Eldredge v. Town of Falmouth, 662 F.3d
100, 106 (1st Cir. 2011) (holding arguable reasonable suspicion sufficient to support
qualified immunity); Jackson v. Sauls, 206 F.3d 1156, 1165–66 (11th Cir. 2000) (same).

For the reasons stated in the preceding section, I think we must conclude that Riley
had at least arguable reasonable suspicion to think that evidence would be
destroyed and officers would be in danger if they knocked and announced their
presence before entering the four apartments, including the First Street apartment,
associated with the targets of the drug trafficking then under investigation.
That conclusion is only reinforced by our case law, which indicates that when
Riley applied for the no‐knock warrants at issue in 2008, it was hardly clear that

37

reasonable suspicion was absent here. See Gonzalez v. City of Schenectady, 728 F.3d
at 154 (“[Q]ualified immunity shields official conduct that is objectively legally
reasonable in light of the legal rules that were clearly established at the time it was
taken.” (internal quotation marks omitted)). Indeed, recent summary orders from
this court have identified reasonable suspicion in circumstances bearing some
similarities to this case. See United States v. Harper, 421 F. Appx. 108, 110 (2d Cir.
2011) (upholding no‐knock warrant where officers “reasonably believed that
firearms were present in Harper’s home and that announcing their presence
therefore would be dangerous”); United States v. McCloud, 303 F. Appx. 916, 918
(2d Cir. 2008) (holding challenged no‐knock authority supported by reasonable
suspicion based on “affiant’s experience that the drug evidence that was the object
of the search could be readily destroyed upon notice of entry”); see also United
States v. Tisdale, 195 F.3d 70, 73 (2d Cir. 1999) (holding that, where drugs at issue
were described in warrant affidavit as being in “readily disposable form,” it was not
“entirely unreasonable” for officer to rely on no‐knock warrant (internal quotation
marks omitted)).

38

In sum, based on the particularized information in the corrected affidavit
detailed in this opinion, as well as our own case law, it cannot be said that Riley was
“plainly incompetent” or “knowingly violate[d] the law” in concluding that
reasonable suspicion of danger and evidence destruction supported a no‐knock
entry into the First Street apartment. Malley v. Briggs, 475 U.S. at 341.

* * *

To conclude, because I am convinced that the challenged search warrant is
supported, as a matter of law, by both probable cause to search the First Street
apartment and reasonable suspicion to do so on a no‐knock basis—or at least by
arguable probable cause and arguable reasonable suspicion—I respectfully dissent
from the decision to dismiss this case for lack of jurisdiction. I would instead enter
judgment in favor of Riley on the ground of qualified immunity.

Outcome: For all of the reasons discussed above, the appeal is dismissed for a lack of
jurisdiction.

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Defendant's Experts:

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