### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 2521

W ILLIAM R AINSBERGER

, Plaintiff

‐ Appellee

,

v.

C HARLES B ENNER

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:16

‐ cv

‐ 00103

‐ WTL

‐ MJD

— William T. Lawrence

, Judge

.

____________________

A RGUED J ANUARY 4, 2018

— D ECIDED J ANUARY 15, 2019

____________________

Before W OOD

, Chief Judge

, and H AMILTON and B ARRETT

,

Circuit Judges

.

B ARRETT

, Circuit Judge

. William Rainsberger was charged

with murdering his elderly mother. But the detective who

built the case against him, Charles Benner, may have been dis

‐

honest. According to Rainsberger, Benner submi tt ed a proba

‐

ble cause a ffi davit that was riddled with lies and undercut by

the omission of exculpatory evidence. Based on that a ffi davit,

Rainsberger was arrested, charged, and imprisoned for two2 No. 17

‐ 2521

months. When the prosecutor dismissed the case because of

evidentiary problems, Rainsberger sued Benner under 42

U.S.C. § 1983 for violating his Fourth Amendment rights. Ben

‐

ner moved for summary judgment, arguing that he was enti

‐

tled to quali fi ed immunity. The district court denied his mo

‐

tion, and he now asks us to reverse the district court.

We decline to do so. Benner concedes for purposes of this

appeal that he knowingly or recklessly made false statements

in the probable cause affidavit. He emphasizes, however, that

knowingly or recklessly misleading the magistrate in a prob

‐

able cause affidavit—whether by omissions or outright lies—

only violates the Fourth Amendment if the omissions and lies

were material to probable cause. He claims that his weren’t,

but we disagree. Materiality depends on whether the affidavit

demonstrates probable cause when the lies are taken out and

the exculpatory evidence is added in. And when that is done

here, Benner’s affidavit fails to establish probable cause to be

‐

lieve that Rainsberger murdered his mother. Because it is

clearly established that it violates the Fourth Amendment “to

use deliberately falsified allegations to demonstrate probable

cause,” Franks v. Delaware

, 438 U.S. 154, 168 (1978), Benner is

not entitled to qualified immunity.

I.

We start with an issue that affects both appellate jurisdic

‐

tion and our rendition of the facts. This is an appeal from the

district court’s order denying Benner’s motion for summary

judgment on the ground of qualified immunity. In the normal

course, we lack jurisdiction to review an order denying sum

‐

mary judgment because it is not a “final decision” under 28

U.S.C. § 1291. See Gutierrez v. Kermon

, 722 F.3d 1003, 1009 (7thNo. 17

‐ 2521 3

Cir. 2013). But because “qualified immunity is in part an enti

‐

tlement not to be forced to litigate the consequences of official

conduct,” Mitchell v. Forsyth

, 472 U.S. 511, 527 (1985), the de

‐

nial of qualified immunity is an appealable interlocutory de

‐

cision—at least insofar as it turns exclusively on a question of

law, id. at 530. That qualification is significant: because our

authority extends only to questions of law, an officer can ob

‐

tain interlocutory review only if he refrains from contesting

any fact that a reasonable jury could resolve against him. See

Jones v. Clark

, 630 F.3d 677, 680 (7th Cir.2011) (“In a collateral

‐

order appeal

..., where the defendants say that they accept

the plaintiff’s version of the facts, we will take them at their

word and consider their legal arguments in that light. If, how

‐

ever, we detect a back

‐ door effort to contest the facts, we will

reject it and dismiss the appeal for want of jurisdiction.”).

Benner does so here. For purposes of this appeal, he accepts

as true Rainsberger’s version of all facts that are in material

dispute—most significantly, that he knowingly or recklessly

made false or misleading statements in the affidavit that se

‐

cured Rainsberger’s arrest. In what follows, then, we recount

the facts that we must take as true, drawing all inferences in

Rainsberger’s favor. The legal question that we must decide

is whether Benner is entitled to qualified immunity on these

facts.

A.

Rainsberger was the primary caregiver for his mother,

Ruth, who was 88 years old and su ff ering from dementia. 1

Ruth lived alone in an apartment in a high

‐ crime area; Rains

‐ berger lived nearby. He checked on her daily, did her grocery

1 We will refer to the other members of the Rainsberger family by their

first names for the sake of clarity.4 No. 17

‐ 2521

shopping, and handled her fi nances. His siblings Robert and

Rebecca also helped care for Ruth, although they saw her less

frequently.

At approximately 3:30 p.m. on November 19, 2013, Rains

‐ berger went to Ruth’s apartment and found the door un

‐

locked. When he entered, he discovered Ruth lying facedown

on the fl oor with a blanket covering her shoulders and head.

She was breathing, but with di ffi culty. There was a large circle

of dried blood on the blanket and a pool of congealed blood

on the fl oor. Rainsberger did not remove the blanket because

he believed that it was acting as a bandage, and he feared that

the bleeding would increase if he pulled it o ff

.

Rainsberger called 911 from his mother’s landline at 3:37

p.m. He told the operator that someone had “bashed [his

mother’s] head in.” He then called his brother Robert and told

him to come to the apartment immediately. Rainsberger

waited outside for the ambulance because Ruth’s apartment

was di ffi cult to locate within the complex.

When paramedic Carl Wooldridge arrived, Rainsberger

told him that someone had “caved his mother’s head in.”

Wooldridge observed that the blanket covering Ruth’s head

appeared to be stuck to a wound. He noticed “somewhat of a

hole in [the blanket] where the wound was,” and when he

peeled the blanket o ff

, “there was a mark

... on her forehead

that [he] believed to be an entrance wound.” Based on those

observations, Wooldridge told fi re and ambulance personnel

that Ruth had been shot—a conclusion that the emergency

personnel thought odd, given the lack of blood spla tt er on the

walls or ceiling. As it turned out, Rainsberger, not

Wooldridge, had it right: Ruth died of blunt force trauma to

the head. Wooldridge later told Charles Benner, the detectiveNo. 17

‐ 2521 5

investigating the murder, that he found it suspicious that

Rainsberger said that his mother’s head had been caved in

even though he had not removed the blanket to look at her

injuries.

Benner came to Ruth’s apartment roughly 40 minutes after

Rainsberger placed the 911 call. There was no sign of forced

entry, and while some dresser drawers in Ruth’s bedroom

were open, their contents were undisturbed. Ruth’s check

‐

book, credit cards, and some cash were found in the apart

‐

ment. Her purse and prescription medication were not.

Rainsberger and Robert, who had since arrived, voluntar

‐ ily went to police headquarters to give statements to Benner.

Rainsberger said that he had last seen his mother the previous

evening. After visiting her, he drove to Plain fi eld, which is

roughly 25 miles away, to spend the evening with his wife.

He returned to his house the next morning, where he stayed

until around 3:30 p.m. He then left home to check on his

mother, stopping at Kroger on the way to buy an iced tea. He

told Benner that Ruth’s apartment was unlocked when he ar

‐

rived and that he found her lying wounded on the fl oor. He

checked the apartment for intruders and, fi nding none, called

911. Rainsberger informed Benner that his mother was not

physically able to stand up and see through the peephole, so

she typically had to open the door to see who was there. And

Rainsberger said that Ruth had $80,000 to $100,000 in savings

that would be distributed to her three children upon her

death.

Robert told Benner that he had not seen Ruth for a few

days. He said that he had been at Rainsberger’s house when

Rainsberger called to tell him to come to Ruth’s apartment im

‐6 No. 17

‐ 2521

mediately. He explained that he had been living with Rains

‐ berger for a few months because he had lost his own home to

foreclosure.

Benner talked to Rainsberger’s sister Rebecca the next day.

Rebecca told Benner that she typically checked on her mother

once a week and had last seen her the day before the a tt ack.

Sometime after his call with Rebecca, Benner asked the three

siblings to come to the station to review the results of Ruth’s

autopsy. When they got there, however, Benner did not talk

about the autopsy. Instead, he accused Rainsberger and Rob

‐

ert of murdering their mother for her money and asked them

to take a polygraph. Upset at the accusation and at being

lured to the station under false pretenses, they refused and

left. Roughly a week later, after obtaining counsel to represent

them, both Rainsberger and Robert agreed to go to the station

to give fi ngerprints and submit to a DNA buccal swab.

Benner did not wait for the results of the DNA tests before

seeking to have Rainsberger arrested and charged. In early

December 2013, Benner submi tt ed a probable cause a ffi davit

to the Marion County prosecutor. But the prosecutor declined

to pursue it, and Benner went back to fi nd more evidence.

Benner hoped that the results of the DNA tests would

make his case against Rainsberger. In March 2014, he noted in

an email to a colleague that “[t]he victim’s sons are the sus

‐

pects in this case and I am waiting for DNA results before any

arrest may be made.” But when the laboratory report came

out in April 2014, it did not implicate Rainsberger—the DNA

of two males was found on Ruth’s blanket and clothing, but

neither Rainsberger nor Robert was a match. Benner took that

result in stride. Although the DNA test did not incriminateNo. 17

‐ 2521 7

Rainsberger, Benner did not think that it exonerated him ei

‐

ther. (The same, of course, was true of Robert, but Benner was

focused on Rainsberger.) Benner reasoned that the unknown

male DNA on Ruth’s blanket and clothing might have been

left by emergency personnel rather than the killer.

In May 2014, Benner went to the prosecutor with a second

probable cause a ffi davit that was almost identical to the fi rst.

The second a ffi davit did not disclose the results of the DNA

test. But it added two pieces of evidence that Benner had ac

‐ quired since he presented the prosecutor with the fi rst a ffi da

‐

vit. First, Benner used cell phone records to suggest that

Rainsberger had called Robert from Ruth’s apartment at 2:40

p.m.—hours after Ruth was a tt acked and a li tt le more than an

hour before Rainsberger called 911. Second, he stated that cell

phone tower location data could not place Rainsberger out

‐

side the area of his mother’s apartment during the relevant

period. After receiving the second probable cause a ffi davit,

the prosecutor went to Marion County Court and obtained a

warrant for Rainsberger’s arrest. Rainsberger was charged

with his mother’s murder and spent two months in jail before

he was released on bail. The prosecutor dismissed the case a

year later because of evidentiary problems.

B.

After the charges were dropped, Rainsberger sued Benner

under 42 U.S.C. § 1983, alleging that Benner had violated his

Fourth Amendment rights. Benner moved for summary judg

‐

ment on the basis of quali fi ed immunity, but the district court

denied the motion. It decided that a reasonable jury could fi nd

that Benner knowingly or with reckless disregard for the truth

made false or misleading statements in the a ffi davit. Probable

cause did not exist without the false or misleading statements,8 No. 17

‐ 2521

the district court said, and because an o ffi cer who submits a

materially misleading probable cause a ffi davit violates

clearly established Fourth Amendment law, it denied Benner

quali fi ed immunity. The district court’s order turned on the

following omissions and alleged lies. 2

The phone records. The most damning addition to the sec

‐

ond probable cause a ffi davit was the suggestion that Rains

‐ berger called Robert’s cell phone from Ruth’s landline at 2:40

p.m. on November 19. This placed Rainsberger at Ruth’s

apartment after she was injured and almost an hour before he

called 911 for help. But the time stamp was inaccurate—and

for purposes of this appeal, we must assume that Benner

knew it. A phone expert at the police department had ana

‐ lyzed the records and told Benner that the call had been

routed through a cell tower in Chicago, where it was one hour

earlier. Thus, despite the 2:40 p.m. time stamp, the call had

been placed at 3:40 p.m. Indianapolis time. It was the call that

Rainsberger had made to Robert just after he found Ruth and

called 911. Benner chose to use the inaccurate and incriminat

‐ ing time in his a ffi davit.

The Kroger video

. Rainsberger had stopped at Kroger to buy

an iced tea before going to Ruth’s apartment on the day of the

2 Rainsberger complains about omissions in addition to those we detail

here. For example, he faults Benner for failing to include the results of the

DNA test, the fact that Ruth lived in a high

‐ crime area, and the fact that

she would often open the door to strangers because she couldn’t see

through the peephole. The district court chose not to determine whether

this information was material because it found probable cause lacking

even without it. Because we agree that the hypothetical affidavit fails to

establish probable cause even without this evidence, we take the same ap

‐ proach as the district court.No. 17

‐ 2521 9

murder. In the probable cause a ffi davit, Benner described sur

‐

veillance video from Kroger that showed Rainsberger making

a trip to a trash can. According to Benner, Rainsberger “ap

‐ peared to pull out a straight object from his person which he

placed in the garbage can.” But the district court observed that

nothing on the video shows Rainsberger “‘pulling’ the object

from anywhere.” Benner also claimed that “[a]s [Rainsberger]

placed the object in the trash he appeared to look around for

cameras.” But as the district court said, a reasonable jury

could fi nd that Benner deliberately mischaracterized Rains

‐ berger’s behavior, which does not appear furtive on the video.

And after watching the video ourselves, we agree with Rains

‐ berger that a reasonable jury could fi nd that Benner intention

‐ ally misled the prosecutor and magistrate in yet another re

‐

spect: by describing Rainsberger’s trash as a “straight object.”

That phrase was obviously designed to imply that Rains

‐ berger disposed of the murder weapon, but the object that

Rainsberger threw away looks far more like a soda can than a

“straight object.” 3 Viewed in Rainsberger’s favor, the video

depicts him carrying a small nondescript piece of trash

through a parking lot and throwing it away near the entrance

to the grocery store—in broad daylight and while other pa

‐

trons are walking by.

The evidence of burglary

. Benner believed that Ruth’s at

‐

tacker was someone she knew rather than a thief. Consistent

with that theory, Benner swore in the a ffi davit that nothing

3 The district court did not address the shape of the trash, and its hypo

‐

thetical affidavit left intact Benner’s statement that “Rainsberger placed

what appeared to be a straight object in the garbage can.” After viewing

the video in the light most favorable to Rainsberger, we refer to the waste

simply as “trash” in evaluating the affidavit.10 No. 17

‐ 2521

had been taken from the apartment. He noted that there was

no sign of forced entry; that cash, a checkbook, and credit

cards were still in the apartment; and that things were undis

‐

turbed apart from a few open drawers. But the district court

concluded that a jury could fi nd that Benner intentionally

misled the prosecutor and magistrate in two respects. First, he

failed to tell them that Ruth’s purse and prescription medica

‐

tion were missing. Second, he stated that a lockbox containing

savings bonds was untouched and in plain view, even though

the lockbox was neither in plain view nor a repository of sav

‐ ings bonds.

Rainsberger’s concern for his mother

. Benner described

Rainsberger as lacking concern for his mother. He stated that

after Rainsberger called 911, he “went outside to wait for the

ambulance” and “left his mother una tt ended until the police

arrived.” Benner conspicuously omi tt ed Rainsberger’s expla

‐

nation for doing so—that he wanted to direct the ambulance

to Ruth’s apartment, which was hard to fi nd. And continuing

with this “callous son” theme, Benner asserted that when they

were questioned on the day of the a tt ack, “[a]t no time did

Robert or his brother, Rainsberger, ever ask me how their

mom was doing or if they could get to the hospital to see her.”

Benner knew, however, that Rainsberger was receiving up

‐

dates by text from his sister Rebecca, who was at the hospital,

and that Rainsberger had expressed concern about how he

would get to the hospital from the police station. The district

court concluded that a reasonable jury could fi nd that Benner

intentionally misled the prosecutor and magistrate.

The polygraph

. Benner claimed in the a ffi davit that the

Rainsberger children “stormed out” of the police station after

he asked Rainsberger and Robert to take a polygraph test andNo. 17

‐ 2521 11

that he did not hear from them again. According to the district

court, a reasonable jury could agree with Rainsberger that

Benner’s description of the Rainsbergers’ departure was a lie,

as was his claim that he didn’t hear from them again.

II.

Before us, Benner insists that he is entitled to quali fi ed im

‐ munity even if all of the disputed facts are true. Quali fi ed im

‐ munity involves a two

‐ pronged inquiry: (1) whether the facts,

read in favor of the non

‐ moving party, amount to a constitu

‐

tional violation; and (2) whether the constitutional right was

clearly established at the time of the alleged violation. McCo

‐

mas v. Brickley

, 673 F.3d 722, 725 (7th Cir. 2012). The o ffi cer

wins if the answer to either question is “no.” Jacobs v. City of

Chicago

, 215 F.3d 758, 766 (7th Cir. 2000). Courts often start

with the second question, because if the law was not clearly

established, there is no need to tackle the (often harder) ques

‐

tion whether the challenged conduct violated the Constitu

‐

tion. See Pearson v. Callahan

, 555 U.S. 223, 236–42 (2009). This

case requires us to confront both issues, however, so we begin

by analyzing whether Benner’s alleged conduct violated

Rainsberger’s Fourth Amendment rights.

A.

An officer violates the Fourth Amendment if he intention

‐ ally or recklessly includes false statements in a warrant appli

‐

cation and those false statements were material to a finding of

probable cause. Hart v. Mannina

, 798 F.3d 578, 591 (7th Cir.

2015). An officer similarly violates the Fourth Amendment if

he intentionally or recklessly withholds material information

from a probable cause affidavit. Whitlock v. Brown

, 596 F.3d

406, 410–11 (7th Cir. 2010). We use a straightforward method12 No. 17

‐ 2521

to determine whether the alleged lies or omissions are mate

‐

rial: “We eliminate the alleged false statements, incorporate

any allegedly omitted facts, and then evaluate whether the re

‐ sulting ‘hypothetical’ affidavit would establish probable

cause.” Betker v. Gomez

, 692 F.3d 854, 862 (7th Cir. 2012).

With the lies stripped and the omissions added, Benner’s

case for probable cause boils down to this: Ruth’s murderer

might have been someone she knew, because the a tt ack was

not necessarily connected to a burglary. Some drawers had

been opened and her purse and medication were missing; at

the same time, there was no sign of a forced entry, and Ruth’s

checkbook, credit cards, and some cash were still in the apart

‐

ment. Rainsberger had a key to her apartment, and cell phone

records did not rule out the possibility that he was in the vi

‐ cinity of her apartment complex when the a tt ack happened.

Shortly before he found his mother and called 911, Rains

‐ berger stopped at a Kroger across the street from his mother’s

apartment to buy an iced tea. He walked in plain view

through the Kroger parking lot carrying a piece of trash,

which he threw away in a receptacle by a Redbox machine on

his way into the store. He correctly described Ruth’s injury as

a blow to the head, even though he had not removed the blan

‐

ket to see the wound. In contrast, the fi rst responder, who did

remove the blanket, initially thought that Ruth had been shot.

Rainsberger and his two siblings would inherit about $33,000

apiece if his mother died. When Benner brought the Rains

‐ berger children to the police station under false pretenses,

Rainsberger and his brother refused Benner’s request that

they take a polygraph test. A week later, they voluntarily gave

fi ngerprints and submi tt ed to a DNA buccal swab.No. 17

‐ 2521 13

As we have explained before, “probable cause is a

common

‐ sense inquiry requiring only a probability of

criminal activity; it exists whenever an officer or a court has

enough information to warrant a prudent person to believe

criminal conduct has occurred.” Whitlock

, 596 F.3d at 411. It

does not require proof of a crime; it is about “the degree of

suspicion that attaches to particular types of non

‐ criminal

acts.” Illinois v. Gates

, 462 U.S. 213, 243 n.13 (1983).

Importantly, a probable cause inquiry does not take each fact

in isolation; it depends on the totality of the circumstances.

District of Columbia v. Wesby

, 138 S. Ct. 577, 588 (2018).

Assessing the hypothetical affidavit therefore requires us to

determine whether Rainsberger’s behavior was suspicious

enough that a prudent person aware of the full picture

painted in the hypothetical affidavit could believe that

Rainsberger murdered his mother.

A prudent person could not draw that conclusion on these

facts. Many of them would be true of most children of aging

parents: that Rainsberger had a key to her apartment, checked

on her frequently, and stood (along with his siblings) to in

‐

herit whatever she left behind. These unremarkable facts

would be reason to suspect Rainsberger only if other infor

‐

mation cast them in a suspicious light. Benner sought that

light with his theory that Ruth was murdered by someone she

knew rather than a thief. Yet the evidence on that score was

conflicting: while some valuables remained in the apartment,

others were missing. Benner also suggested that Rains

‐ berger’s refusal to take a polygraph test reflected his con

‐

sciousness of guilt. But that inference is weak, given that Ben

‐

ner had lured the Rainsberger children to the station with a

lie and met them with a hostile demand for a polygraph test

when they arrived. And the fact that Rainsberger tossed a14 No. 17

‐ 2521

piece of trash into a garbage can in broad daylight on his way

into Kroger is neither here nor there. Without what a jury

could reasonably consider to be a grossly misleading descrip

‐

tion of the surveillance video, this trip to a trash can certainly

does not support the inference that Rainsberger disposed of

the murder weapon before going to Ruth’s apartment.

Benner’s best argument for turning this package of facts

into grounds for probable cause is that Rainsberger correctly

described his mother as having been hit in the head even

though he had not looked under the blanket. But this fact can

‐

not carry the weight Benner needs it to. Rainsberger’s state

‐

ment was a reasonable inference from observable evidence;

he walked into his mother’s house, saw her lying on the floor

and bleeding from her head, and concluded that someone had

hit her over the head. The cause of her injury was not so diffi

‐

cult to discern that knowing it suggested inside knowledge.

Indeed, the emergency personnel thought that the first re

‐ sponder’s competing theory—that Ruth had been shot—was

counterintuitive, given the lack of telltale blood splatter on the

walls or ceiling.

The totality of these circumstances supports nothing more

than bare suspicion, and the Court has emphasized that prob

‐

able cause requires more than that. See Brinegar v. United

States

, 338 U.S. 160, 175 (1949) (probable cause “mean[s] more

than bare suspicion”); Henry v. United States

, 361 U.S. 98, 104

(1959) (“Under our system suspicion is not enough for an of

‐

ficer to lay hands on a citizen.”); see also Ebert v. Gaetz

, 610 F.3d

404, 413 (7th Cir. 2010) (“The officers must have more than a

bare suspicion that they have the right guy

... .”); Sherouse v.

Ratchner

, 573 F.3d 1055, 1062 (10th Cir. 2009) (“Where an of

‐No. 17

‐ 2521 15

ficer observes inherently innocuous behavior that has plausi

‐

ble innocent explanations, it takes more than speculation or

mere possibility to give rise to probable cause to arrest.”). If

probable cause exists here, then anyone who experiences the

tragedy of discovering a murdered family member—and who

correctly assesses the cause of the injury and recently threw

something away in a public trash can—can be arrested for

murder. Probable cause is a low bar, but this evidence does

not clear it.

B.

Benner tries to bolster the case for probable cause with in

‐ culpatory facts that he did not include in the a ffi davit. For ex

‐ ample, he asserts that in his training and experience as a hom

‐

icide detective, an a tt acker who covers his victim’s head often

has a personal relationship with the victim. He also says that

in his experience, family members are typically eager to take

polygraph tests so that the o ffi cer can get to work on fi nding

the real culprit. According to Benner, this additional infor

‐

mation can make up the di ff erence if we think that the incul

‐

patory evidence recited in the a ffi davit falls short.

Benner recognizes that we have never incorporated incul

‐

patory evidence into a hypothetical a ffi davit in a civil suit like

this. 4 But we have never expressly refused to do so either, and

4 That said, he does stretch for some support from Knox v. Smith

, 342 F.3d

651 (2003), which arose in the distinct context of a parole violation. In

Knox

, the plaintiff alleged that his parole officer lacked reasonable suspi

‐

cion to believe that he had violated the conditions of his parole when she

requested a warrant for his arrest on that ground. Id. at 656. He also al

‐ leged that at least one of the facts in the parole violation report prepared

by the defendant and her supervisor was a lie. Id. at 658. According to

Benner, Knox supports his “beyond the four corners” approach because16 No. 17

‐ 2521

he argues that now is the time for us to embrace this approach.

After all, he says, we go outside the four corners of the a ffi da

‐

vit to consider omi tt ed exculpatory evidence, so why not do

the same for omi tt ed inculpatory evidence? He emphasizes

that o ffi cers do not have an obligation to include every incul

‐

patory detail in a probable cause a ffi davit and warns that if

we decline to consider omi tt ed inculpatory facts, o ffi cers will

feel forced to recite every detail in an a ffi davit to bolster any

later claim of quali fi ed immunity. He maintains that this

would be ine ffi cient and burdensome, particularly when the

timeline is tight. And he contends that this rule might prompt

o ffi cers to forgo warrants altogether, because if they are sued

for making a warrantless arrest, they can defend by drawing

on all available facts—not merely those they chose to include

in an a ffi davit—to demonstrate that probable cause existed.

Benner’s argument is misguided. It assumes that this suit

is about whether Benner violated the Fourth Amendment’s

prohibition on “unreasonable searches and seizures” by ar

‐ resting Rainsberger without probable cause. But that is not

the allegation here. Rainsberger has sued Benner for violating

the Fourth Amendment’s guarantee that “no Warrants shall

we relied on inculpatory information that was outside the parole violation

report in concluding that the officer was entitled to qualified immunity.

But the parole violation report in Knox was not the same thing as a proba

‐

ble cause affidavit; it was a document that the officer and her supervisor

prepared the day after the warrant had issued. Id. at 655. Indeed, there

was no affidavit in Knox that could have marked the boundaries of our

inquiry, because the parole officer requested a warrant via a page sent to

her supervisor. Id. And Knox contains no discussion of what the officer’s

supervisor knew when the officer requested the warrant, much less the

“four corners” issue that Benner raises.No. 17

‐ 2521 17

issue, but upon probable cause, supported by Oath or affir

‐

mation

... .” U.S. C ONST

. amend. IV. The Warrant Clause is

not merely a probable

‐ cause guarantee. It is a guarantee that

a warrant will not issue unless a neutral and disinterested

magistrate independently decides that probable cause exists.

Franks v. Delaware

, 438 U.S. 154, 164 (1978) (“The bulwark of

Fourth Amendment protection, of course, is the Warrant

Clause, requiring that, absent certain exceptions, police obtain

a warrant from a neutral and disinterested magistrate before

embarking upon a search.”); Johnson v. United States

, 333 U.S.

10, 14 (1948) (“Its protection consists in requiring that [eviden

‐ tiary] inferences be drawn by a neutral and detached magis

‐

trate instead of being judged by the officer engaged in the of

‐

ten competitive enterprise of ferreting out crime.”). A magis

‐

trate can assess only the information that she is given; there

‐

fore, in testing the validity of a warrant, we consider only ev

‐

idence that the magistrate had. 5 And “[i]f an affidavit is the

only matter presented to the issuing magistrate

... the war

‐

rant must stand or fall solely on the contents of the affidavit.”

United States v. Roth

, 391 F.2d 507, 509 (1967); see also United

States v. Orozco

, 576 F.3d 745, 748 (7th Cir. 2009) (“When, as

here, an affidavit is the only evidence presented to a judge to

support a search warrant, the ‘validity of the warrant rests

5 For the sake of clarity, we emphasize that inculpatory evidence not in

‐

cluded in the affidavit may be admissible with respect to an issue other

than whether the warrant demonstrates probable cause. For example, it

might be evidence of whether an officer acted knowingly or recklessly

when he prepared the affidavit. See, e.g.

, United States v. Williams

, 718 F.3d

644, 650 (7th Cir. 2013) (noting that the officers’ omission of additional in

‐ culpatory evidence provided “a reasonable basis to believe that the police

did not intend to mislead”).18 No. 17

‐ 2521

solely on the strength of the affidavit.’” (citation omitted)). Ex

‐

trinsic evidence of guilt “cannot be used

... to augment an

otherwise defective affidavit.” Roth

, 391 F.2d at 509; see also

United States v. Harris

, 464 F.3d 733, 739 (7th Cir. 2006) ( “Con

‐ sidering new information

... that supported a finding of prob

‐

able cause was beyond the trial court’s analytical reach. Ra

‐

ther, its consideration of new information omitted from the

warrant affidavit should have been limited to facts that did

not support a finding of probable cause.”)

.

Benner argues that a different rule should apply in a civil

case to give the police officer greater protection when his in

‐

dividual liability is on the line. But the first prong of the qual

‐

ified immunity analysis is not the one designed to specially

protect the officer—that comes at the second prong, which

limits the officer’s liability to violations of clearly established

law. In the first inquiry, we analyze whether the facts before

us “make out a violation of a constitutional right.” Pearson

,

555 U.S. at 232. And the Fourth Amendment is violated when

the magistrate’s probable

‐ cause determination is made based

on an affidavit that fails to establish probable cause, no matter

what extra

‐ affidavit information the officer had. Roth

, 391

F.2d at 509; see also Orozco

, 576 F.3d at 748. Moreover, while

we have never addressed the issue that Benner raises, we

have held that other aspects of Franks apply equally in civil

and criminal cases. See Perlman v. City of Chicago

, 801 F.2d 262,

264–65 (7th Cir. 1986) (holding that Franks ’s requirement of a

“substantial preliminary showing” that the officer deliber

‐ ately misrepresented facts in a warrant affidavit applies in

civil as well as criminal actions). There is no reason to follow

a different course here. See id. (asserting that there is “no rea

‐

son to apply a standard different than that established by

Franks to a civil action for damages based on an allegation thatNo. 17

‐ 2521 19

a police officer deliberately misrepresented facts in a warrant

affidavit”).

It bears emphasis that there is no lack of symmetry be

‐

tween our willingness to go beyond the affidavit to consider

evidence of innocence while staying strictly within it for evi

‐

dence of guilt. Both rules are designed to protect the integrity

of the warrant process. Refusing to add inculpatory infor

‐

mation to a hypothetical affidavit enforces the Warrant

Clause’s requirement that warrants issue based on the judg

‐

ment of a neutral magistrate rather than that of an interested

police officer. Adding exculpatory information to a hypothet

‐

ical affidavit permits us to determine whether the officer dis

‐

torted the magistrate’s judgment by suppressing material ev

‐

idence. 6 An affidavit that misleads by lies or omission under

‐

cuts the magistrate’s ability to make an independent probable

cause determination. See Franks

, 438 U.S. at 165 (“Because it is

the magistrate who must determine independently whether

there is probable cause, it would be an unthinkable imposi

‐

tion upon his authority if a warrant affidavit, revealed after

the fact to contain a deliberately or recklessly false statement,

were to stand beyond impeachment.” (citations omitted)). It

also vitiates the Clause’s requirement that probable cause be

supported by “Oath or affirmation.” As the Court has ob

‐

served, this language demands a “truthful” showing “in the

6 The same concern drives our practice of excluding false information from

a hypothetical affidavit. An affidavit that contains material lies contami

‐

nates the magistrate’s assessment of probable cause. If probable cause ex

‐

ists without the lies, then the warrant issued on the strength of the hon

‐ estly sworn facts. It therefore satisfies the Fourth Amendment’s require

‐

ment that a warrant issue only “upon probable cause” demonstrated by

facts “supported by Oath or affirmation.” U.S. C ONST

. amend. IV.20 No. 17

‐ 2521

sense that the information put forth is believed or appropri

‐ ately accepted by the affiant as true.” Id. An officer who

swears that presented facts support probable cause when he

knows that suppressed facts destroy it does not act truthfully.

He therefore violates the Warrant Clause, which “surely takes

the affiant’s good faith as its premise.” Id. at 164.

In sum, Benner’s argument that he could have obtained a

valid warrant if he had proceeded differently is beside the

point. A hypothetical affidavit is not designed to determine

whether an officer could have satisfied the Warrant Clause; it

is to determine whether he actually satisfied it. And Benner

did not, at least if the disputed facts are resolved in Rains

‐ berger’s favor.

III.

We now turn to the second prong of the quali fi ed immun

‐ ity analysis: whether it would have been “clear to a reasonable

o ffi cial that his or her conduct was unlawful in the situation.”

Carvajal v. Dominguez

, 542 F.3d 561, 566 (7th Cir. 2008). Benner

argues that even if he violated Rainsberger’s Fourth Amend

‐

ment rights, the district court still wrongfully denied him

quali fi ed immunity. He concedes—as he must—that it vio

‐

lates clearly established law “to use deliberately falsi fi ed alle

‐ gations to demonstrate probable cause.” Franks

, 438 U.S. at

168. Even so, Benner says, he is entitled to quali fi ed immunity

if the facts of the hypothetical a ffi davit demonstrate “arguable

probable cause”—in other words, if a competent o ffi cer faced

with the facts in the hypothetical a ffi davit could reasonably if

mistakenly believe that those facts were su ffi cient to establish

probable cause. Benner’s argument takes some untangling,

but its logic is this: (1) only material lies and omissions violate

the Fourth Amendment, so the materiality of those lies andNo. 17

‐ 2521 21

omissions must be clearly established; (2) the court evaluates

materiality by determining whether a hypothetical a ffi davit

would demonstrate probable cause; (3) if a competent o ffi cer

reviewing the hypothetical a ffi davit could reasonably but

mistakenly conclude that it established probable cause, then

the materiality of the false or omi tt ed information was not

“clearly established.”

We have never applied the test that Benner proposes.

There is a reason: it doesn’t make sense. To begin with, Ben

‐

ner’s framing has the proverbial reasonable o ffi cer facing a

situation di ff erent from the one Benner did. Quali fi ed immun

‐ ity depends on whether it would have been “clear to a reason

‐

able o ffi cer that his conduct was unlawful in the situation he

confronted .” Wesby

, 138 S. Ct. at 590 (emphasis added) (citation

omi tt ed). In other words, the court puts a competent o ffi cer in

the defendant’s shoes, facing the same choice that the defend

‐

ant did. Benner did not face a choice about whether the facts

in the hypothetical a ffi davit established probable cause. He

faced a choice about whether to make false or misleading

statements in the a ffi davit. (He has also been faulted for ex

‐ cluding exculpatory evidence, but that presents di ff erent is

‐

sues that we’ll get to below.) Thus, the relevant question is

what a well

‐ trained o ffi cer would have thought about the law

‐

fulness of that action. What Benner is really arguing, then, is

that he is entitled to quali fi ed immunity if a well

‐ trained of

‐

fi cer could “reasonably but mistakenly conclude” that it was

lawful to include an incriminating lie in an a ffi davit because

the lie wasn’t material to the probable cause determination.

See Anderson v. Creighton

, 483 U.S. 635, 641 (1987).

Of course, a competent o ffi cer would not even entertain

the question whether it was lawful for him to lie in a probable22 No. 17

‐ 2521

cause a ffi davit. The hypothetical o ffi cer in the quali fi ed im

‐ munity analysis is one who acts in good faith

. That is what the

standard of “objective reasonableness” is designed to capture.

See Harlow v. Fi tz gerald

, 457 U.S. 800, 815–19 (1982); Malley v.

Briggs

, 475 U.S. 335, 345 (1986); cf. United States v. Leon

, 468

U.S. 897, 922–23 (1984) (establishing the “good faith excep

‐

tion” to the exclusionary rule). Indeed, protecting o ffi cers

who act in objective good faith is the justi fi cation for quali fi ed

immunity. Harlow

, 457 U.S. at 815, 819 n.34 (explaining that

quali fi ed immunity applies to suits “arising from actions

within the scope of an o ffi cial’s duties and in objective good

faith ” (emphasis added) (internal quotation omi tt ed)). It

would be fl atly inconsistent with that justi fi cation to imagine

a competent o ffi cer considering the question whether a lie

helpful to demonstrating probable cause is so helpful that he

should not tell it. That is neither a reasonable question to ask

nor a reasonable mistake to make.

Nonetheless, Benner maintains that we have previously

embraced his approach. He seizes on a sentence in Betker v.

Gomez, in which we asserted that “[a]n officer who knowingly

or recklessly submitted an affidavit containing false state

‐

ments may still get qualified immunity if he can establish that

he had an objectively reasonable basis for believing the facts

in the affidavit were sufficient to establish probable cause.”

See 692 F.3d at 860. Taken out of context, this sentence super

‐ ficially supports Benner’s position that he is entitled to quali

‐

fied immunity if the hypothetical affidavit establishes “argu

‐

able probable cause.” But his cherry

‐ picking distorts what we

actually said. In the very next sentence we explained: “But

qualified immunity does not extend where an officer know

‐ ingly or recklessly made false statements and ‘no accurate in

‐

formation sufficient to constitute probable cause attended theNo. 17

‐ 2521 23

false statements.’” Id. (quoting Lawson v. Veruchi

, 637 F.3d 699,

705 (7th Cir. 2011)). Our analysis then proceeded as we do

here: we constructed a hypothetical affidavit, determined

whether it established actual probable cause, and denied

qualified immunity because “immunity does not extend

‘[w]here the judicial finding of probable cause is based solely

on information the officer knew to be false or would have

known was false had he not recklessly disregarded the

truth.’” Id. (alteration in original) (quoting Olson v. Tyler

, 771

F.2d 277, 282 (7th Cir. 1985)). We never asked, much less ana

‐ lyzed, whether the officer in Betker had made a reasonable

mistake about the materiality of his lies.

To summarize: if an officer knowingly or recklessly in

‐

cludes false information in an affidavit and that information

is not material, he will not be liable in a § 1983 action because

the plaintiff will not be able to prove a constitutional viola

‐

tion. But if that information is material, the officer is not enti

‐

tled to qualified immunity. The unlawfulness of using delib

‐ erately falsified allegations to establish probable cause could

not be clearer. See, e.g.

, Lawson

, 637 F.3d at 705 (“[I]t [i]s clearly

established ‘that a warrant request violates the Fourth

Amendment if the requesting officer knowingly, intention

‐ ally, or with reckless disregard for the truth, makes false state

‐

ments in requesting the warrant and the false statements were

necessary to the determination that a warrant should issue.’”

(citation omitted)); Olson

, 771 F.2d at 281 (“ If an officer sub

‐

mitted an affidavit that contained statements he knew to be

false or would have known were false had he not recklessly

disregarded the truth and no accurate information sufficient

to constitute probable cause attended the false statements, not

only is his conduct the active cause of the illegal arrest, but he24 No. 17

‐ 2521

cannot be said to have acted in an objectively reasonable man

‐

ner.”). And the plaintiff need not show that the materiality of

the lie would have been clear to a competent officer. The qual

‐

ified immunity analysis uses the perspective of an officer act

‐ ing in good faith, and an officer acting in good faith would

not entertain that question.

An officer sued for failing to include materially

exculpatory facts in a probable cause affidavit is differently

situated. It violates clearly established law to “intentionally or

recklessly withhold material information from a warrant

application.” Whitlock

, 596 F.3d at 408. But while a competent

officer would not ask whether the Fourth Amendment

permits him to tell a particular lie, a competent officer

would—indeed, must—consider whether the Fourth

Amendment obligates him to disclose particular evidence.

Because an officer acting in good faith could make a

reasonable mistake about his disclosure obligation, the

materiality of omitted facts, unlike the materiality of false

statements, is properly part of the qualified

‐ immunity

analysis. We have repeatedly held, therefore, that an officer

violates the Fourth Amendment by omission only if “ it would

have been clear to a reasonable officer that the omitted fact

was material to the probable

‐ cause determination.” See Leaver

v. Shortess

, 844 F.3d 665, 669 (7th Cir. 2016); see also Olson v.

Tyler

, 825 F.2d 1116, 1121 (7th Cir. 1987) (“[O]nly where a

reasonable officer can conclude that a withheld fact is

irrelevant to probable cause should such an officer who

withholds a known (or recklessly disregarded) fact be

protected with qualified immunity.”).

Whitlock provides an illustration. See 596 F.3d 406. There,

campers picked up apparently abandoned bags in an IndianaNo. 17

‐ 2521 25

state park, intending to turn them in to park authorities so

that the property could be returned to its rightful owner. Id.

at 408–09. But they forgot for several hours, the bags were re

‐ ported stolen, and the campers were arrested for criminal

conversion. Id. at 409. They sued the officer who obtained the

warrant, alleging that he withheld a material fact by failing to

include the campers’ innocent explanation for taking the bags

in his probable cause affidavit. Id. at 410. We held that the of

‐

ficer was entitled to qualified immunity. Because Indiana law

on criminal conversion was undeveloped, a reasonable officer

would not necessarily have known that the campers’ explana

‐

tion for taking the bags was material to the probable cause

determination. Id

. at 413. A well

‐ trained officer could make a

reasonable mistake about whether a given fact would negate

probable cause.

Here, Benner has not argued that it would have been un

‐

clear to a reasonable o ffi cer that any of the information that

he omi tt ed was material to the probable cause determination.

Thus, we need not address whether he made any reasonable

mistakes in that regard.

* * *

The district court correctly held that Benner is not entitled

to quali fi ed immunity, and its judgment is AFFIRMED.