Commonwealth v. Sincavage

439 F.2d 1133

• Court: Court of Appeals for the Third Circuit
• Decided: March 24, 1971
• Docket: No. 19086
• Status: Published

Opinion

OPINION OF THE COURT

PER CURIAM;

Appellants brought a civil action pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983 against three police officers, seeking actual and punitive damages for a search of their home. In a non-jury trial the district court found that the search had been conducted in a reasonable manner in the execution of a search warrant procured in good faith, 313 F.Supp. 967. This finding is not clearly erroneous. Rule 52(a), Fed.R.Civ.P. The district court also found that the state court judge who issued the warrant had probable cause to do so. Appellants contend this finding is in error. We do not reach that issue. A peace officer who acts in good faith and in a reasonable manner in executing a search warrant issued by a judicial officer is not made liable in damages under 42 U.S.C. § 1983 upon a showing that the judicial officer erred. Cf. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).

Appellants also contend that they should have been afforded a jury trial. Mr. Feiling, the original plaintiff, did not demand a jury trial within the time permitted by Rule 38, Fed.R.Civ.P. After his untimely demand for a jury trial was denied he moved to amend the complaint by adding his wife as a plaintiff. When that motion was granted she renewed the demand for a jury trial and her motion was denied. The case was then ready for trial on a non-jury calendar. The district coux’t did not err in permitting the wife to intervene in her husband’s case in the status in which she found it.

The judgment of the district court will be affirmed.