United States Court of Appeals,

Eleventh Circuit.

No. 94-8258.

Gordon HAYGOOD, Judy Haygood, Plaintiffs-Appellees,

v.

Randall JOHNSON, in his individual and official capacity as

Sheriff of Fayette County, Georgia, Mike Pruitt, Lt., in his

individual and official capacity as a law enforcement officer with

the Fayette County Sheriff's Department, Scott Savage, in his

individual and official capacity as a law enforcement officer with

the Fayette County Sheriff's Department, Defendants-Third-Party

Plaintiffs, Appellants,

Fayette County, Defendant-Appellant,

Henry Allen Thurston, Third-Party Defendant.

Dec. 4, 1995.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 3:92-CV-123-GET), G. Ernest Tidwell,

Judge.

Before EDMONDSON and COX, Circuit Judges, and FAY, Senior Circuit

Judge.

PER CURIAM:

This case involves several claims brought by Gordon and Judy

Haygood pursuant to 42 U.S.C. § 1983, seeking damages arising from

a search allegedly conducted in violation of the Fourth and

Fourteenth Amendments. Appellant-defendants appeal from adverse

rulings on summary judgment motions.

Defendant Savage argues that he was erroneously denied summary

judgment. His motion was based on qualified immunity to the

plaintiffs' claim that he caused an illegal search to occur by

intentionally or recklessly omitting material facts from an

application for a search warrant. Defendants City of Tyrone and

Fayette County argue that they were entitled to summary judgment on
the plaintiffs' section 1983 municipal liability claims against

them, which arose from the same search. We hold that Savage is

entitled to qualified immunity, but refrain from addressing the

municipal liability claims: we lack jurisdiction.

I.

In April 1992, Corporal Scott Savage was on duty at the

Fayette County Sheriff's Department Task Force. He received a call

from a man who informed him that Gordon Haygood—now plaintiff in

this case—was selling cocaine. The caller identified himself as

"Larry Sims." Savage ran a criminal history check on Sims and

found nothing. Savage's supervisor ordered a "controlled buy,"

using Sims as the decoy, to corroborate Sims' story.

Before the controlled buy, Sims was searched to make sure he

took into the buy no drugs, money, weapons, and so on. He then

called plaintiff Haygood and arranged a meeting at a convenience

store nearby. Sims went into the meeting wearing a small tape

recorder and in possession of $200 that had been given to him by

the police. Agents observed Gordon Haygood arrive, park by the gas

pumps, and meet with the informant in the store. Plaintiff and the

informant then got into Plaintiff's van, drove around to the

darkened side of the building, and sat with the lights off for two

minutes. The informant left the van and walked straight to the

officers' vehicle, where he presented a small bag of white powder.

This bag was later determined (before filing the warrant affidavit)

to contain five grams of powder, instead of the 3.5 that the agents
 1

Savage stated during his deposition that a laboratory test

done after the filing of the warrant affidavit showed the

substance not to be cocaine. 

 2In this instance, Plaintiff Haygood alleges that Hurston

had contacted him earlier to ask if he would be interested in

buying a couch from Aaron Rental, for whom Hurston claimed to

work; that Haygood chose the couch, which Hurston agreed to

deliver; and that on the night of the controlled buy, Hurston

called Haygood to say the couch was at the convenience store. 

expected the $200 to buy.1

After the buy, the officers realized that the tape recorder

either had been shut off or malfunctioned. They also realized, as

"Sims" filled out paperwork, that he carried papers identifying him

as Henry Hurston. The informant admitted to the officers that

Hurston was his real name; he claimed he had lied because he was

frightened that the police would reveal his name to drug dealers

who would seek retribution. Had the officers run a second criminal

history check at this time, they would have discovered that Hurston

had been arrested and convicted several times for engaging police

in fraudulent "controlled buys."2

After the controlled buy, Savage filed an affidavit requesting

a warrant to search Plaintiff's residence. In the application,

Savage asked for and received a "no-knock" provision based on his

assertion that drugs can be easily disposed. In the affidavit, he

omitted that Hurston had used an alias, that the tape recorder

failed, and that the amount of the white powder (which had not yet

been tested) was more than the money allotted was expected to have

bought. A warrant was issued.

Having received the warrant, Fayette County officers used a

battering ram to go through the plaintiff's front door at about
11:00 p.m. Plaintiff and his family were detained in nightclothes

while the search of the house and a car took place. The search

turned up no evidence of drugs, nor the two $100 bills that Hurston

was to have used to buy the drugs.

Plaintiffs filed this action under 42 U.S.C. § 1983, bringing

state law claims as well. The district court held that there was

no probable cause to search and that Savage was unentitled to

summary judgment based on qualified immunity. For defendants

Pruitt and Johnson (Fayette County police officers sued in their

official and personal capacities) the district court granted them

summary judgment in their individual capacities based on qualified

immunity. The district court refused to grant summary judgment to

Fayette County and the City of Tyrone on the plaintiffs' municipal

liability claims. The district court dismissed Plaintiffs' state

law claims. Savage appeals the denial of qualified immunity; the

local governments appeal the denial of summary judgment on

Plaintiffs' claims against them under section 1983.

II.

 We review the denial of summary judgment to determine whether

Savage's conduct violated "clearly established statutory or

constitutional rights of which a reasonable person would have

known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,

2738, 73 L.Ed.2d 396 (1982). The question is one of law, and our

review is de novo. Elder v. Holloway, --- U.S. ----, ----, 114

S.Ct. 1019, 1023, 127 L.Ed.2d 344 (1994).

The district court held that the facts omitted from the

warrant by defendant Savage negated probable cause and that a
 3

Lassiter approved no new rules, but did attempt to restate

and to clarify the principles of qualified immunity. The

district court's decision in this case predates our Lassiter

decision. 

reasonable officer in Savage's position would have known of the

clearly established law forbidding the omission of material facts

from a warrant application. Based on these conclusions, the

district court determined that Savage caused an illegal search in

violation of clearly established law and was, therefore, entitled

to no immunity.

The reasoning underlying the district court's holding

contravenes that of Lassiter v. Alabama A & M Univ., 28 F.3d 1146

(11th Cir.1994) (en banc).3 There, we stressed that denial of

qualified immunity should occur only when the actual conduct in

which the defendant was alleged to have engaged violated clearly

established federal law. Lassiter, 28 F.3d at 1149-50 (qualified

immunity unavailable only if all reasonable government agents in

same situation would know that act "violates federal law in the

circumstances "). Here, the district court concluded that clearly

established law holds that a search is invalid when facts

deliberately omitted from the warrant would have negated probable

cause. We accept this reading of Supreme Court and Eleventh

Circuit precedent for motions to suppress. E.g., West PointPepperell, Inc. v. Donovan, 689 F.2d 950, 960 (11th Cir.1982);

United States v. Martin, 615 F.2d 318, 328 (5th Cir.1980). But, it

does not end the analysis in this civil action.

The district court never concluded that what Savage

specifically did violated clearly established law. In reality,
probable cause is not a precise concept. The district court did

not conclude (nor could it rightly have) that Plaintiff met the

burden of showing that, in the light of pre-existing law, the facts

omitted in this case were clearly material (that is, that the facts

omitted clearly would have negated probable cause if those facts

had been included). We, looking at the pre-existing law, hold that

the facts omitted here were not so clearly material that every

reasonable law officer would have known that their omission would

lead to a search in violation of federal law.

Savage omitted from his warrant application that Hurston had

used an alias, that the tape recorder had shut off, and that the

quantity of cocaine allegedly purchased exceeded the expected

quantity by about fifty percent. Savage points out that these

facts, taken individually, have rational explanations and do not

mean much. Informants commonly use aliases when dealing with the

police, tape recorders frequently malfunction, and variations in

quantity occur in drug sales (and are difficult to identify by

sight when they do). Thus, none of these facts was sufficient in

itself to cast the kind of doubt on the credibility of the informer

that would overcome the qualified immunity defense.

More important, however, we conclude that the combination of

omitted facts might for some reasonable police officers be

insufficient to negate probable cause in these uncommon and

specific circumstances. Savage had been physically present at what

looked by all appearances to be a typical drug deal: he had

witnessed a meeting in a convenience store, a brief drive with no

destination, a conversation in a darkened automobile in a darkened
corner of a parking lot, and the presentation of what looked to be

the drugs promised by the informant (who had been searched just

before the "buy"). Having seen those occurrences firsthand, a

reasonable officer in Savage's position could have concluded that

the facts about the alias, tape recorder and weight of the

substance would not negate probable cause and, thus, were not

material. See, e.g., United States v. Martin, 920 F.2d 393, 398-99

(6th Cir.1990) (observation of controlled buy can overcome

questions about informer's credibility).

No pre-April 1992 decisions from this court, Georgia's Supreme

Court, or the United States Supreme Court involve facts that are

much like the facts of this case. See generally Courson v.

McMillian, 939 F.2d 1479, 1497-98 & n. 32 (11th Cir.1991) (law can

be "clearly established" for qualified immunity purposes by

decisions of U.S. Supreme Court, Eleventh Circuit Court of Appeals,

or highest court of state where case arose); D'Aguanno v.

Gallagher, 50 F.3d 877, 880 n. 5 (11th Cir.1995). Savage's conduct

was not so obviously wrong, in the light of pre-existing law, that

only a plainly incompetent officer or one who was knowingly

violating the law would have done what Savage did. Lassiter, 28

F.3d at 1149. Defendant Savage is due immunity.

III.

The governmental parties argued two other questions in briefs

to this Court: the merits of the plaintiffs' constitutional claims

and the liability of the local governments under Monell v.

Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56

L.Ed.2d 611 (1978). For these claims, we no longer have
jurisdiction in the light of the Supreme Court's decision in Swint

v. Chambers County Comm'n, --- U.S. ----, 115 S.Ct. 1203, 131

L.Ed.2d 60 (1995).

REVERSED in part and REMANDED.