## United States Court of Appeals FOR THE EIGHTH CIRCUIT

________________ No. 97-4007

________________ Patricia Mueller, Paul Mueller, *

Appellees, *

v. * District Court for the Douglas Tinkham and Michae l * Hanlen, *

Appellants. * *

* Appeal from the United States

* Eastern District of Missouri.

*

* * *

________________ Submitted: May 11, 1998 Filed: December 16, 1998

________________ Before BOWMAN, Chief Judge, HEANEY and HANSEN, Circuit Judges.

________________ HANSEN, Circuit Judge.
Patricia and Paul Mueller brought this 42 U.S.C. § 1983 action asserting that the appella nts violated the Muellers' civil rights by applying for and executing a searc h warrant on the Muel lers' home without probable cause, and conspiring to violate their civil rights. The appellants, Dete ctive Douglas Tinkham and his supervisor, Detective Sergeant Michael Hanlen, both employed by the City of O'Fallon, Missouri, soughtThe Honorable Mary Ann L. Medler, United States Magistrate Judge for the 1 Eastern District of Missouri, trying the case by consent of the parties pursuant to 28 U.S.C. § 636(c).
2 summary judgment on the basis o f qualified immunity. The district court denied their 1 motions for summary judgment, and the officers now appeal.

I.
The Muellers reside at #40 Country Lane Court in St. Cha rles County, Missouri. On Ap ril 30, 1996, at approximately 9:30 p.m., the St. Charles County Tactica l Resp onse Team forcibly entered the Muellers' home and restrained the Muellers a t gun point. Detectives Tinkham and Hanlen then entered the home and searched th e
res idence for over an hour looking for illegal firearms and evidence of the sale o f illegal firearms.

Th e search of the Muellers' residence was the result of an investigation begu n in April 1996, when Special Agent Ray Fragoso of the Federal Bureau of Alcohol , Tobacco & Firearms and Detective Tinkham of the police department for the City of O'Fallon, Missouri, began a joint investigation regarding the sale of illegal firearms in St. Charles County. During the course of this investigation, Tinkham and Fragoso met with an informant, Matthew Hoppe, who provided th em with information in an attempt to gain l eniency for state charges he was facing. Hoppe informed the officers that a
man na med Terry Vaught resided at #40 Country Lane Court and was selling illega l firearms fro m the residence. Hoppe said he had obtained an illegal firearm fro m Vaught and would show it to the officers, but he never produced the weapon despite
severa lrequests from the detectives to do so. Tinkham, Fragoso, and Hanlen the n searched Hoppe's residence, but they did not find the illegal weapon Hoppe had told them about. During the search, Hoppe's mother arrived and told the officers her son is a manic depressive and a pathological liar, so they should not believe anything he3

said. Hoppe admitted to the officers that he had lied about the gun. The officers then forci bly took Hoppe back to the police station and instructed him to write out hi s prev ious statement. In this written statement, Hoppe attested that he knew Terr y Vaugh t and that Terry Vaught was selling illegal firearms from his residence at #4 0 Country Lane Court.

Detective Tinkham applied for and obtained a search warrant for #40 Country Lane Court to search for illegal firearms, supported by Hoppe's affidavit an d Tinkham's own asser

tion that Hoppe was an informant whose information had proved reliable in the past. Hoppe denies ever having given information in the past. Sergeant Hanlen reviewed and approved the search warrant materials prior to their submission to the state court.

Afterobt aining the warrant but prior to its execution, the officers learned tha t Vaug ht was actually residing at a location in Portage DeSioux, Missouri, and not a t #4 0 Country Lane Court. They also learned that the utilities at #40 Country Lan e Court w ere in the name of the Muellers. The only information given by Hopp e relevant to this pa

rticular residence that the officers were able to independently verify was Hoppe' s description of the outside front of the residence, which was visible from the stree t. The officers executed the warrant at approximately 9:30 p.m. First, a tenmember team forcibly entered #40 Country Lane Court, restrained the Muellers, and secured th e premises to avert the threat of illegal firearms. Thereafter, Tinkham , Hanlen, and Fragoso entered the residence and searche d it for over an hour before they left with no evidence and no sign of Vaught.

The Muellers brought this civil rights suit, alleging that Tinkham, Hanlen, and Fr agoso violated their Fourth Amendment rights by applying for and executing th e warrant, and that they engaged in a conspiracy to violate the Muellers' civil rights. The three officers moved for summary judgment, but the dis trict court denied their motions, finding that material dispute s of fact existed as to whether they acted in an objectively4

reason able manner. All three defendants appealed, but Special Agent Fragos o subsequ ently withdrew his appeal, leaving only the appeals of Tinkham and Hanle n before this court.

II.
"We review a denial of summary judgment de novo, applying the same standard that governed the district court's decision." Collins v. Bellinghausen , 153 F.3d 591 , 595 (8th Cir. 1998). This standard requires us to view the evidence in the light most favorable to the nonmoving party and to accept as true the no nmoving party's statement of the facts. Guite v. Wright , 147 F.3d 747, 749 (8th Cir. 1998). We have jurisdiction to review the denial of summary judgment based on qualified immunity, but that jur isdictionis limited to abstract issues of law and does not extend to argument s concerning the sufficiency of the evidence. Collins , 153 F.3d at 595 (citing Behrens
v. Pelletier , 516 U.S. 299, 313 (1996)). However, public officials are permitted t o claim on appeal that their actions were objectively reasonable in light of thei r knowledge at the time of the inc ident. Id. We affirm the denial of summary judgment based on qual ified immunity if there exists a genuine issue of material fact or th e moving party is not entitled to judg ment as a matter of law. See Fed. R. Civ. P. 56(c). See also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986).

De tectives Tinkham and Hanlen claim that the district court erred by denyin g summary judgment on the basis of qualified immunity. When state officials are sued forviolating a clearly established federal right, the doctrine of qualified immunity shields th em from personal liability if a reasonable official in their position would not have known that his actions violated a clearly established right. See Walden v

. Carmack , 156 F.3d 861, 868-69 (8th Cir. 1998). In other words, "[t]he qualifie d immunitydoctrine shields state actors from personal liability where their actions , though unlawful, are nevertheless objectively reasonable in light of the clearly5

established law at the time of the events in question. " Rogers v. Carter , 133 F.3d 1114, 1119 (8th Cir. 1998) (citing Anderson v. Creighton , 483 U.S. 635, 638-39 (1987)).

Cl early established Fourth Amendment law requires a warrant application t o contain a truthful factual showing of probable cause--"truthful in the sense that th e inform ationput forth is 'believed or appropriately accepted by the affiant as true.' " Moody v. St. Charles County , 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Franks v. Delaware , 43 8 U.S. 154, 165 (1978)). To preclude a grant of qualified immunity, a "warrant application [must be] so lacking in indicia of probable cause as to rende r off icial belief in its existence unreasonable." George v. City of St. Louis , 26 F.3d 55, 57 (8th Cir. 1994) (citing Malley v. Briggs , 475 U.S. 335, 344-45 (1986)). Fo r purposes of qualified immunity, "[t]he issue is not whether the affidavit actuall y establishes probable cause, but rather whether the officer had an objectively reasonable belief that it established probable cause." Thompson v. Reuting , 968 F.2d 756, 760 (8th Cir. 1992).

De tective Tinkham and Sergeant Hanlen claim that they had an objectivel y reasonable belief that H oppe's affidavit established probable cause to support issuance of the search warrant. Hoppe's statement was the sole basis for the search warran t application. When a search warrant affiant relies on the statement of an informant, the reliabilit y of that informant is a key issue. Walden , 156 F.3d at 870. The information provided by an informant i s sufficient to support a probable cause finding if the person has p rovided reliable information in the past or if the information has bee n independently corroborated. Id.

The dist rict court aptly observed that "the facts concerning the reasonablenes s of [t he officers'] application for the search warrant are vastly disputed." (Appellants ' Adden. at 8.) Detective Tinkham attested that Hoppe had provided reliable information in the past, but Hoppe says he had n ever before provided any information. Contrary to Tinkham's assertion that Hoppe was reliable, the officers had knowledge and reason6

to belie ve that Hoppe was not truthful. Hoppe admitted lying to the officers about his ability to produce an illegal firearm which he said he obtained from Vaught. Also , Hoppe's own mother told them that Hoppe was untruthful--in fact, a pathological liar. This i nformation was not included in the search warrant materials, and it raises a genuine question about whether Tinkha m and Hanlen reasonably believed that Hoppe's statement supplied probable cause to support the warrant.

Tink ham and Hanlen contend that Hoppe's statement was reliable because they indepen dently verified his description of the outside of the residence (a descriptio n available to anyone who drove by the residence), he made sel f-incriminating admissions in his statement, he provided deta iled firsthand observations, and Tinkham interviewed Hoppe personally. Such factors are important in determining the reliability of a n informan t. See United States v. LaMorie , 100 F.3d 547, 553 (8th Cir. 1996) (notin g personal con tact with an informant can strengthen an officer's decision to rely on th e information provide d and statements against penal interest carry considerable weight). However, because the officers knew of the co nflicting information concerning Hoppe's truthfulness, there remains a question of whether they acted in an objectively reasonable
manner re garding their application for the search warrant, and they have thus failed to prove that they are entitled to qualified immunity on this claim.

Tinkham and Hanlen also argue that they are entitled to qualified immunity for their conduct in executing the search warrant. They assert that their conduct was not
unreas onable--they did not take part in the forcible entry to the home, they did no t physically restra

in the Muellers, they caused no damage to the house, and Hanlen was jus tified in searching the Muellers' computer for records of illegal firearm sales. Th e district court concluded that Tinkham and Hanlen are not entitled to qualified immunity fo r their conduct in executing the search warrant, because genuine issues of materia l fact existed concerning whether Tinkham and Hanlen were reasonable in their belie f that the search warrant was supported by probable cause.7

The actual conduct of Tinkham and Hanlen while executing the warrant i s irrelevant t o our analysis. Instead, qualified immunity in this case turns on whethe r they reasonably believed that the warrant was supported by probable cause when it was issuedand executed. An officer is entitled to rely on a warrant that the office r reasonabl ybelieves to be valid. United States v. Humphrey , 140 F.3d 762, 765 (8th Cir. 1998); see also United States v. Leon , 468 U.S. 897, 922-23 (1984) (noting tha t reliance on a warrant must be objectively reasonable). Conversely, an officer is no t entitledto qualified immunity where his reliance on the warrant is not objectivel y
r e asonable. We have already noted that material questions of fact existed concerning the o bjective reasonableness of the warrant application, given the detectives' personal know ledge of facts indicating that probable cause might be lacking. Additionally, the detecti ves learned information after the warrant issued which also cast doubt on th e validity of the warrant. These remaining material issues of fact bearing on whether the officers reasonably believed probable cause to search existed preclude the grant o f qualified immunity for Tinkham and Hanlen's conduct in executing the warrant.
Finally, the officers assert that the district court erred by denying summary judgment on the conspiracy claim, arguing that th e undisputed facts establish that there
was no conspiracy and, alternatively, that they are entitled to qualified immunity from the conspiracy claim. A consti tutional conspiracy requires a showing that two or more persons conspired to deprive another of a constitutional right and that an act was done in furtherance of the conspiracy which caused an injury. Marti v. City of Maplewood, Missouri , 5 7 F.3d 680, 685 (8th Cir. 1995). The district court denied summary judgmento n this claim, concluding that there is a material issue of fact over whethe r a conspiracy existed. We lack j urisdiction in this qualified immunity appeal to address the district court's denial of summary judgment on this basis. S ee Johnson v. Jones , 515 U.S. 304, 313 (1995) (holding a summary j udgment order determining "only a question of 'evidence sufficiency,' i.e. which facts a party may, or may not, be able to prove at trial," is not immediately appealable.)8

In a foot note, the district court noted alternatively that the officers were no t entitle d to qualified immunity on the conspiracy claim, explaining that the sam e dis putedfacts that prevented qualified immunity on the first two claims necessaril y defea t qualified immunity on this claim as well. We agree. Qualified immunity protects "state actors from personal liability where their actions, though unlawful, are nevertheless objectively reasonable in light of the clearly established law." Rogers , 133 F.3d at 1119. Detective Tinkham, Sergeant Hanlen, and Special Agent Fragoso al l
wor ked closely together on this case, and the disputed facts bearing on Hoppe' s reliability were within their personal knowledge. These disputed facts call into question the r easonableness of the officers' belief that the warrant was supported by probabl e
ca use. Absent an objectively reasonable belief that the warrant was supported b y probable cause, the officers ' joint efforts to apply for and to execute the warrant would not be entitled to the protection of qualified immunity.

III.

Accor dingly, we affirm the order of the district court denying the motion fo r summary judgment.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT