Particularity by Incorporation and the Seizure–Search Divide for Digital Devices: Lessons from Shotwell v. Delaware DSHS (3d Cir. 2025)

Court: U.S. Court of Appeals for the Third Circuit (non-precedential)

Panel: Judges Krause (author), Matey, and Phipps

Decision Date: August 26, 2025

Case: Mark J. Shotwell v. Delaware Department of Safety and Homeland Security, et al., No. 24-2754

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Introduction

This appeal arises from a civil rights action brought under 42 U.S.C. § 1983 by Mark Shotwell against the Delaware Department of Safety and Homeland Security and several Delaware State Police officials. The dispute centers on two 2016 state search warrants—one authorizing seizure of weapons (the “Contempt Warrant”) and the other authorizing seizure of electronic devices (the “Documents and Devices” or “D&D Warrant”)—and later law-enforcement review of data extracted from the seized devices. The district court dismissed Shotwell’s general-warrant and lack-of-probable-cause claims at the pleading stage and granted summary judgment to Detective Andrew Gatti on the remaining Fourth Amendment unlawful search claim. The Third Circuit affirmed.

Though non-precedential, the opinion offers two salient takeaways that will resonate in digital search practice:

• Warrant particularity can be supplied by express incorporation of a supporting affidavit; “magic words” are unnecessary so long as the incorporation is clear.
• A warrant that authorizes seizure of electronic devices does not, by itself, authorize the search of the data on those devices; a data search requires separate authorization.

The court also reaffirmed deferential review of probable cause determinations and underscored the personal-involvement requirement for § 1983 defendants, which doomed the unlawful-search claim against the only identified officer.

Background

In 2016, Shotwell posted on social media in ways suggesting firearm possession despite a then-operative prohibition on his possession of firearms. After Detective Geoffrey Biddle informed Shotwell about an investigation, Shotwell returned the call and threatened Biddle and other officers. Separately, Shotwell and a companion told an Uber driver to take them where they wanted because they had “guns.”

Sergeant Matthew Taylor applied for and obtained two warrants: (1) the Contempt Warrant authorizing the search for and seizure of weapons, and (2) the D&D Warrant authorizing officers to search for and seize “any and all electronic devices” (and enumerated categories of media/electronics). Officers executed the warrants in July 2016, found no firearms, and seized fourteen electronic devices. Detective Andrew Gatti later extracted data from the devices and created copies for subsequent review. According to Shotwell, officers later searched the extracted data using sixteen keywords not mentioned in the warrants, capturing thousands of files, including many created before the investigation. In the related criminal case, Shotwell pleaded nolo contendere to one count of Disorderly Conduct (an unclassified misdemeanor).

In 2018, Shotwell sued under § 1983, alleging: (a) the warrants were unconstitutional general warrants, (b) the warrants lacked probable cause, and (c) the later keyword search of device data was unlawful. The district court granted defendants’ motion to dismiss the first two categories and later granted summary judgment to Detective Gatti on the unlawful-search claim. The Third Circuit affirmed on all grounds.

Summary of the Judgment

• General-warrant challenge rejected. Both warrants described discrete items or definite categories (e.g., firearms, electronic devices), thereby limiting officer discretion. Even if facial breadth raised concerns, each warrant expressly incorporated the supporting affidavit, which supplied particularity and tethered the search/seizure to the crimes under investigation.
• Probable cause upheld. The affidavits established a substantial basis to believe evidence would be found, including threats to police officers, social media posts suggesting firearm possession by a prohibited person, and the Uber incident referencing guns. The deferential Illinois v. Gates standard controlled.
• Unlawful-search claim fails for lack of personal involvement. Shotwell conceded that Detective Gatti only performed data extractions and that he could not attribute any subsequent “search” of the data to Gatti or any other identified defendant. Because § 1983 requires personal involvement, summary judgment was proper.
• Judicial notice request denied. Appellees urged the court to take judicial notice of a third, incomplete “data-search” warrant. The court declined under Werner v. Werner because the document was incomplete, unauthenticated, and not capable of accurate and ready determination.

Analysis

Precedents Cited and How They Shaped the Decision

• General warrants and particularity
  • United States v. Christine, 687 F.2d 749 (3d Cir. 1982), and Coolidge v. New Hampshire, 403 U.S. 443 (1971): A warrant becomes an impermissible “general warrant” when it authorizes a general exploratory rummaging. The panel used this framing to ask whether the warrants here sufficiently limited officer discretion.
  • United States v. $92,422.57, 307 F.3d 137 (3d Cir. 2002): Even broadly worded warrants are not general if they target discrete items or definite categories, thereby limiting officer discretion. The court relied on this to uphold broad-but-bounded descriptions.
• Incorporation of affidavits to supply particularity
  • United States v. Tracey, 597 F.3d 140 (3d Cir. 2010), and Doe v. Groody, 361 F.3d 232 (3d Cir. 2004): A warrant may be read with its supporting affidavit when the warrant clearly incorporates it; “magic words” are not required if the language makes the incorporation plain.
  • United States v. Johnson, 690 F.2d 60 (3d Cir. 1982): Language directing officers to search “for the ... evidence ... specified in the annexed affidavit” sufficed to incorporate the affidavit. The Shotwell warrants used materially identical language, making incorporation clear and curing any particularity concern.
• Probable cause deference
  • Illinois v. Gates, 462 U.S. 213 (1983): The “totality of the circumstances” test; the reviewing court asks whether the magistrate had a “substantial basis” to find a fair probability that evidence would be found.
  • United States v. Miknevich, 638 F.3d 178 (3d Cir. 2011), and United States v. Conley, 4 F.3d 1200 (3d Cir. 1993): Emphasize deference to the issuing magistrate and the limited appellate role.
• § 1983 personal involvement
  • Jutrowski v. Township of Riverdale, 904 F.3d 280 (3d Cir. 2018): Plaintiffs must identify the responsible officers; inability to do so, even in an “unfortunate” situation, does not relieve the personal-involvement requirement.
  • Ashcroft v. Iqbal, 556 U.S. 662 (2009): Liability under § 1983 is personal; supervisors and colleagues are not vicariously liable absent their own constitutional violations.
• Appellate practice and judicial notice
  • Werner v. Werner, 267 F.3d 288 (3d Cir. 2001): Judicial notice is limited to facts generally known or capable of accurate and ready determination from indisputable sources. An incomplete, unauthenticated warrant cannot be noticed for its truth.
  • In re Aquilino, 135 F.4th 119 (3d Cir. 2025): Arguments raised for the first time on appeal—like collateral estoppel here—are forfeited.

Legal Reasoning

The court’s reasoning proceeds in three steps aligned to the three issues on appeal.

1) Not General Warrants: Breadth versus Boundaries

The panel acknowledged the warrants were “certainly extensive,” but emphasized they targeted discrete items (firearms) or definite categories (electronic and media devices). This “categorical” limitation, the court reasoned, cabins officer discretion and avoids the “rummaging” characteristic of general warrants. The court then buttressed its conclusion by reading the warrants together with their affidavits—each warrant directed officers “to search ... for the property specified in the annexed affidavit and application”—language the Third Circuit has already deemed sufficient to incorporate an affidavit.

Crucially for digital search practice, the court drew a clean line: the D&D Warrant “only describes the items to be searched for and seized—it does not authorize the search of any of those devices.” In other words, authority to seize a device is not authority to forensically search its contents. While the court did not reach whether any subsequent data search was lawful, this clarification removes a common ambiguity in device warrants.

2) Probable Cause: Deferential Review and Substantial Basis

Applying Gates’s deferential standard, the court held that Sergeant Taylor’s affidavit supplied a substantial basis for probable cause: social media posts suggesting firearm possession by a prohibited person; threats to police, including knowledge of officers’ homes and vehicles; and the Uber incident referencing guns. The panel rejected the invitation to reweigh the affidavit’s sufficiency, reiterating that a reviewing court must uphold a magistrate’s finding where a fair probability exists—even if another magistrate might have disagreed.

3) Unlawful Search Claim: Personal Involvement is Essential

On the unlawful search claim tied to keyword searches of extracted data, the court resolved the case on § 1983’s personal-involvement requirement. At summary judgment, Shotwell conceded (a) he could not determine who performed the searches, and (b) Detective Gatti’s role was limited to extraction. He also expressly disclaimed any argument that extraction alone constitutes a “search” under the Fourth Amendment. Because Shotwell could not tie any identified defendant to a constitutional violation, summary judgment was required. This analysis avoided having to adjudicate whether the subsequent review of data exceeded warrant scope or required its own warrant.

Impact and Practical Implications

Although non-precedential, the decision is a clear and practical roadmap on several recurrent issues in digital search and civil rights litigation:

• Warrant drafting for digital evidence.
  • Expressly incorporate supporting affidavits; phrases like “for the property specified in the annexed affidavit and application” suffice. Incorporation helps particularize broad categories and tie them to the suspected offenses.
  • Distinguish between seizure authority (to take devices) and search authority (to examine data). If data review is contemplated, include explicit authorization to search data, scope limitations (e.g., time frames, offense-related data), and, where useful, search protocols.
  • Beware of using search terms or methodologies at review time that have no nexus to warrant scope; if needed, seek supplemental warrants or amendments.
• Litigation strategy in § 1983 digital search cases.
  • Plaintiffs must identify the specific officers who conducted allegedly unlawful searches. Failure to identify the responsible actors, even when records are opaque, can be fatal at summary judgment.
  • Early discovery strategies should focus on chain-of-custody, forensic logs, and audit trails to attribute actions to specific personnel. Consider targeted Rule 30(b)(6) depositions to unmask “unknown officers.”
• Appellate practice and judicial notice.
  • Do not rely on judicial notice to introduce incomplete or unauthenticated warrants on appeal. Build the record below. Werner underscores the limits of judicial notice for contested, non-indisputable documents.
  • Raise preclusion and other threshold defenses in the district court; forfeit them and you likely lose them on appeal.
• Substantive digital search doctrine.
  • The court’s statement that a device-seizure warrant does not itself authorize a data search aligns with broader Fourth Amendment principles in the wake of Riley v. California (requiring warrants for cellphone searches). While this panel did not reach the merits of the later keyword search, practitioners should treat data search authority as distinct and obtain explicit judicial approval.

Complex Concepts Simplified

• General warrant: A warrant that is so broad or vague that it allows “exploratory rummaging” through a person’s belongings. The Fourth Amendment requires particularity—clear descriptions that limit what can be searched and seized.
• Particularity via incorporation: A warrant can satisfy particularity by clearly incorporating a detailed affidavit that identifies the crimes, evidence sought, and places to be searched. No special incantation is needed if the warrant plainly directs officers to the affidavit’s specifics.
• Probable cause (Gates standard): There must be a fair probability that evidence of a crime will be found in the place to be searched, considering all circumstances. Appellate courts ask only whether the issuing judge had a substantial basis to find probable cause.
• Seizure vs. search for digital devices: Authority to seize a device (take possession) is not the same as authority to search its data (examine contents). A separate, explicit authorization is typically required for data review.
• § 1983 personal involvement: To hold an individual officer liable, a plaintiff must show that officer’s own actions violated the Constitution. Group liability or mere association is not enough.
• Summary judgment: A case is resolved without trial when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Concessions about who did what can be determinative.
• Judicial notice: An appellate court may accept certain indisputable facts without evidence if they are generally known or easily verified. Courts will not take notice of incomplete or disputed documents to prove their contents.
• Nolo contendere plea: A plea in which a defendant neither admits nor disputes a charge; treated as a conviction for many purposes but typically not an admission for use in civil litigation.

Additional Observations and Nuances

• Scope of review on appeal: The Third Circuit conducted plenary review of the Rule 12(b)(6) dismissal and the summary judgment ruling, but applied deferential standards to the underlying probable cause determination (Gates).
• Unreached issues: The panel did not decide whether the subsequent keyword searches exceeded warrant scope or required a new warrant; it affirmed on personal involvement grounds. Thus, the legality of the specific keyword searches remains an open question in this case record.
• Non-precedential disposition: Under the Third Circuit’s Internal Operating Procedures, this opinion is not binding precedent. Still, it offers persuasive guidance on digital warrant drafting and § 1983 attribution issues.

Conclusion

The Third Circuit’s decision in Shotwell—while non-precedential—articulates practical and important guideposts for modern Fourth Amendment practice. First, warrants that are broad but cabined to discrete items or categories are not “general warrants,” and express incorporation of a supporting affidavit can supply the necessary particularity. Second, in the digital context, a critical distinction persists: a warrant authorizing seizure of electronic devices does not inherently authorize searching the data on those devices; investigators should obtain explicit data-search authority. Third, § 1983 plaintiffs must connect alleged constitutional violations to specific actors; absent proof of personal involvement, claims falter at summary judgment.

Collectively, these lessons will influence how prosecutors draft digital warrants, how law enforcement structures forensic workflows, and how civil-rights litigants build the evidentiary record to attribute digital searches to particular officers. Even as the opinion sidesteps the merits of the later keyword search, its careful treatment of particularity and incorporation, deference in probable cause review, and the rigor of § 1983 attribution provides a useful blueprint for courts and practitioners navigating the increasingly complex terrain of electronic evidence and constitutional protections.