United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-4007

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Patricia Mueller, Paul Mueller, *

Appellees, *

v. * District Court for the

Douglas Tinkham and Michael *

Hanlen, *

Appellants. *

*

* Appeal from the United States

* Eastern District of Missouri.

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*

*

*

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Submitted: May 11, 1998

 Filed: December 16, 1998

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

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HANSEN, Circuit Judge.

Patricia and Paul Mueller brought this 42 U.S.C. § 1983 action asserting that the

appellants violated the Muellers' civil rights by applying for and executing a search

warrant on the Muellers' home without probable cause, and conspiring to violate their

civil rights. The appellants, Detective Douglas Tinkham and his supervisor, Detective

Sergeant Michael Hanlen, both employed by the City of O'Fallon, Missouri, sought
The 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).

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summary judgment on the basis of 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. Charles County, Missouri.

On April 30, 1996, at approximately 9:30 p.m., the St. Charles County Tactical

Response Team forcibly entered the Muellers' home and restrained the Muellers at

gunpoint. Detectives Tinkham and Hanlen then entered the home and searched the

residence for over an hour looking for illegal firearms and evidence of the sale of

illegal firearms.

The search of the Muellers' residence was the result of an investigation begun

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 them with information in an attempt

to gain leniency for state charges he was facing. Hoppe informed the officers that a

man named Terry Vaught resided at #40 Country Lane Court and was selling illegal

firearms from the residence. Hoppe said he had obtained an illegal firearm from

Vaught and would show it to the officers, but he never produced the weapon despite

several requests from the detectives to do so. Tinkham, Fragoso, and Hanlen then

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 he
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said. Hoppe admitted to the officers that he had lied about the gun. The officers then

forcibly took Hoppe back to the police station and instructed him to write out his

previous statement. In this written statement, Hoppe attested that he knew Terry

Vaught and that Terry Vaught was selling illegal firearms from his residence at #40

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 and

Tinkham's own assertion 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.

After obtaining the warrant but prior to its execution, the officers learned that

Vaught was actually residing at a location in Portage DeSioux, Missouri, and not at

#40 Country Lane Court. They also learned that the utilities at #40 Country Lane

Court were in the name of the Muellers. The only information given by Hoppe

relevant to this particular 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 street. 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 the premises to avert the threat of illegal firearms. Thereafter, Tinkham,

Hanlen, and Fragoso entered the residence and searched 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

Fragoso violated their Fourth Amendment rights by applying for and executing the

warrant, and that they engaged in a conspiracy to violate the Muellers' civil rights. The

three officers moved for summary judgment, but the district court denied their motions,

finding that material disputes of fact existed as to whether they acted in an objectively
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reasonable manner. All three defendants appealed, but Special Agent Fragoso

subsequently withdrew his appeal, leaving only the appeals of Tinkham and Hanlen

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 nonmoving 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

jurisdiction is limited to abstract issues of law and does not extend to arguments

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 to

claim on appeal that their actions were objectively reasonable in light of their

knowledge at the time of the incident. Id. We affirm the denial of summary judgment

based on qualified immunity if there exists a genuine issue of material fact or the

moving party is not entitled to judgment 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). 

Detectives Tinkham and Hanlen claim that the district court erred by denying

summary judgment on the basis of qualified immunity. When state officials are sued

for violating a clearly established federal right, the doctrine of qualified immunity

shields them 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 qualified

immunity doctrine shields state actors from personal liability where their actions,

though unlawful, are nevertheless objectively reasonable in light of the clearly
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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)). 

Clearly established Fourth Amendment law requires a warrant application to

contain a truthful factual showing of probable cause--"truthful in the sense that the

information put 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, 438 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 render

official 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)). For

purposes of qualified immunity, "[t]he issue is not whether the affidavit actually

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). 

Detective Tinkham and Sergeant Hanlen claim that they had an objectively

reasonable belief that Hoppe's affidavit established probable cause to support issuance

of the search warrant. Hoppe's statement was the sole basis for the search warrant

application. When a search warrant affiant relies on the statement of an informant, the

reliability of that informant is a key issue. Walden, 156 F.3d at 870. The information

provided by an informant is sufficient to support a probable cause finding if the person

has provided reliable information in the past or if the information has been

independently corroborated. Id.

The district court aptly observed that "the facts concerning the reasonableness

of [the 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 never before provided any information. Contrary to

Tinkham's assertion that Hoppe was reliable, the officers had knowledge and reason
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to believe 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 information was not included in the search warrant materials, and it raises a

genuine question about whether Tinkham and Hanlen reasonably believed that Hoppe's

statement supplied probable cause to support the warrant. 

Tinkham and Hanlen contend that Hoppe's statement was reliable because they

independently verified his description of the outside of the residence (a description

available to anyone who drove by the residence), he made self-incriminating admissions

in his statement, he provided detailed firsthand observations, and Tinkham interviewed

Hoppe personally. Such factors are important in determining the reliability of an

informant. See United States v. LaMorie, 100 F.3d 547, 553 (8th Cir. 1996) (noting

personal contact with an informant can strengthen an officer's decision to rely on the

information provided and statements against penal interest carry considerable weight).

However, because the officers knew of the conflicting information concerning Hoppe's

truthfulness, there remains a question of whether they acted in an objectively reasonable

manner regarding 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

unreasonable--they did not take part in the forcible entry to the home, they did not

physically restrain the Muellers, they caused no damage to the house, and Hanlen was

justified in searching the Muellers' computer for records of illegal firearm sales. The

district court concluded that Tinkham and Hanlen are not entitled to qualified immunity

for their conduct in executing the search warrant, because genuine issues of material

fact existed concerning whether Tinkham and Hanlen were reasonable in their belief

that the search warrant was supported by probable cause.
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The actual conduct of Tinkham and Hanlen while executing the warrant is

irrelevant to our analysis. Instead, qualified immunity in this case turns on whether

they reasonably believed that the warrant was supported by probable cause when it was

issued and executed. An officer is entitled to rely on a warrant that the officer

reasonably believes 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 that

reliance on a warrant must be objectively reasonable). Conversely, an officer is not

entitled to qualified immunity where his reliance on the warrant is not objectively

reasonable. We have already noted that material questions of fact existed concerning

the objective reasonableness of the warrant application, given the detectives' personal

knowledge of facts indicating that probable cause might be lacking. Additionally, the

detectives learned information after the warrant issued which also cast doubt on the

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 of

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 the undisputed facts establish that there

was no conspiracy and, alternatively, that they are entitled to qualified immunity from

the conspiracy claim. A constitutional 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, 57 F.3d 680, 685 (8th Cir. 1995). The district court denied summary

judgment on this claim, concluding that there is a material issue of fact over whether

a conspiracy existed. We lack jurisdiction in this qualified immunity appeal to address

the district court's denial of summary judgment on this basis. See Johnson v. Jones, 515

U.S. 304, 313 (1995) (holding a summary judgment 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.)
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In a footnote, the district court noted alternatively that the officers were not

entitled to qualified immunity on the conspiracy claim, explaining that the same

disputed facts that prevented qualified immunity on the first two claims necessarily

defeat 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 all

worked 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 reasonableness of the officers' belief that the warrant was supported by probable

cause. Absent an objectively reasonable belief that the warrant was supported by

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. 

Accordingly, we affirm the order of the district court denying the motion for

summary judgment. 

A true copy.

Attest:

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