PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT J. SMITH,

Plaintiff-Appellant,

v.

No. 95-1956

SYLVIA J. REDDY, Officer;

BALTIMORE COUNTY, MARYLAND, a

body corporate and politic,

Defendants-Appellees.

ROBERT J. SMITH,

Plaintiff-Appellant,

v.

No. 96-1456

SYLVIA J. REDDY, Officer;

BALTIMORE COUNTY, MARYLAND, a

body corporate and politic,

Defendants-Appellees.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CA-95-137-S)

No. 95-1956 Argued: March 5, 1996

No. 96-1456 Submitted: May 5, 1996

Decided: November 27, 1996

Before ERVIN and NIEMEYER, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________
Affirmed by published opinion. Senior Judge Butzner wrote the opinion, in which Judge Ervin and Judge Niemeyer joined.

_________________________________________________________________

COUNSEL

ARGUED: William Francis Gately, H. Thomas Howell, HOWELL,

GATELY, WHITNEY & CARTER, Towson, Maryland, for Appellant. Michael Allan Fry, Assistant County Attorney, BALTIMORE

COUNTY OFFICE OF LAW, Towson, Maryland, for Appellees. ON

BRIEF: Kathleen D. Leslie, HOWELL, GATELY, WHITNEY &

CARTER, Towson, Maryland, for Appellant. Virginia H. Barnhart,

County Attorney, Gregory E. Gaskins, Assistant County Attorney,

BALTIMORE COUNTY OFFICE OF LAW, Towson, Maryland, for

Appellees.

_________________________________________________________________

OPINION

BUTZNER, Senior Circuit Judge:

Robert Smith, suing under 42 U.S.C. § 1983, asserts that Officer

Sylvia Reddy of the Baltimore County Police Department violated the

Fourth Amendment by arresting him and searching his house without

probable cause. Although Reddy procured warrants authorizing these

actions, Smith contends that Reddy's affidavits, filed in support of the

warrants, contain false statements and omit material facts, making her

reliance on the warrants unreasonable. In response, Reddy argues that

she is entitled to qualified immunity from civil liability because she

acted in an objectively reasonable manner. The district court agreed

with Reddy and granted her motion for summary judgment. Smith v.

Reddy, 882 F. Supp. 497 (D. Md. 1995). Smith appealed.

While Smith's appeal was pending in this court, he filed a motion

in the district court under Rule 60(b)(2) and (3) of the Federal Rules

of Civil Procedure to vacate and set aside the summary judgment.

Based on allegedly newly discovered evidence, Smith claimed that

the affidavits supporting Reddy's motion for summary judgment

included misrepresentations. The district court denied the motion, and

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Smith again appealed. Both parties have briefed the second appeal,

and we now consolidate both appeals. We review the district court's

grant of summary judgment de novo, Hodge v. Jones, 31 F.3d 157,

163 (4th Cir. 1994), and its denial of the Rule 60(b)(2) and (3) motion

for abuse of discretion. National Organization for Women v. Operation Rescue, 47 F.3d 667, 669 (4th Cir. 1995).

After careful review of the record, we find that Reddy's conduct

was objectively reasonable and affirm the summary judgment that

granted her immunity. However, we reach that conclusion by an analysis that differs somewhat from the district court's. We also affirm the

denial of the Rule 60(b) motion because Smith has not shown fraud

or misrepresentation by clear and convincing evidence.

I

The historical facts are not in serious dispute. In the early morning

of December 17, 1993, the Baltimore County Police Department was

notified that someone had fired a gun into the front door of Christopher's Nightclub, causing no injuries. When the first officers arrived,

they were directed to Ms. Lisa Young, a 25-year-old who claimed to

be the intended victim of the shooting. At least one of the officers

knew that Young had a "bad" reputation in the police department.

Young was visibly intoxicated, and, initially, she was uncooperative

and reluctant to talk with the officers.

Eventually Young told the interviewing officer that she believed

Robert Smith was the gunman. She explained that she and Smith, her

boyfriend of eight months, had come to the club together in his black

Rolls Royce, which he had parked in the fire lane in front of the club.

Shortly after entering the club, Smith became jealous when Young

kissed a bartender she knew. He grabbed her by the arm and threatened to kill her. The bartender later confirmed that, when Young

kissed him, the man with her became angry and led her away by the

arm. According to Young, after having a few drinks, Smith repeated

his threat to kill her twice more, once if she refused to leave the club

and a second time if she refused to get into his car. Although Young

did follow Smith to his car, she then told him she did not want to see

him again, threw the ring he had given her into the car, and returned

to the club. Back inside a few minutes later, she heard gunshots.

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Because she had seen a gun hidden under the seat of Smith's car on

other occasions, she believed he was shooting at her, so she fled to

the women's room.

The police on the scene also interviewed Mr. John Bukofsky and

Mr. Jonathan Hawes, who were in the parking lot when the shooting

occurred. Shortly before the shooting, they saw the club's bouncer

refuse to admit a young white male, wearing a red and white ski

jacket. A few moments later, they heard six gunshots and saw a gun

flashing. After the shots were fired, Hawes saw the same young man

running from the area where the shooting had occurred up a hill to the

nearby Padonia Road. Neither witness saw the person firing the shots.

Hawes gave an officer six .45 caliber shell casings and showed him

where they had been found. The club's bouncer reported that,

moments before the shooting, he had turned away a young male wearing a faded blue jacket and had confiscated the driver's license presented by the youth. The name Mark Tilton and a Cockeysville address

appear on the license.

Later that day, the case was assigned to Officer Reddy. After reading the initial reports and talking with the officers who had been on

the scene, Reddy interviewed Young. Young confirmed that she

believed Smith was responsible for the shooting, but admitted she had

not seen a gun in his car on the previous night. Young directed Reddy

to Smith's house. They met Smith and he agreed to talk with Reddy.

During the interview, Smith confirmed that he had accompanied

Young to the club, he had been displeased with her conduct, he had

decided to leave, they had walked to his car, and she had returned to

the club. Smith denied threatening Young, trying to force her to leave

with him, or keeping a gun in his car. He also denied shooting at the

club or even being aware of the shooting. Reddy asked Smith to consent to a chemical test of his hands that would determine whether he

had recently fired a gun. Smith agreed. Despite Smith's consent, the

test was not conducted. According to Reddy, she later learned that the

test would not have been reliable because too much time had passed

since the shooting. Smith told Reddy that he owned four guns, two

AK-47s, one 30-30 Winchester, and a .32 automatic pistol.

In addition to interviewing Smith, Reddy attempted to contact

Mark Tilton. On December 18, Reddy and another officer spoke with

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Ms. Deborah Tilton, who reported that her three sons, Mark (age 21),

Rodney (age 23), and Kirk (age 17), lived with her but were away for

the weekend. Asked if any of her sons had lost their wallets recently,

Ms. Tilton said Mark had lost his wallet in February, 1993 somewhere in Cockeysville. In response to further questions, she informed

the officers that her sons had not been home on the previous evening,

but that none of them owned a gun, a red and white ski jacket, or a

blue ski jacket. She said Kirk had been at his aunt's house baking

cookies at the time of the shooting. Ms. Tilton did not know where

her sons were or when they would come home, but promised to call

Reddy when they returned. Ms. Tilton never called and Reddy made

no further attempts to contact her sons.

Reddy telephoned Smith on December 20 in an attempt to gather

additional information. During the conversation, Reddy asked Smith

if he knew why the attacker fired the shots through the club's front

door rather than the window. Smith replied, "I guess that's where Lisa

was standing at." Reddy then asked Smith why he thought the attack

was aimed at Lisa. Smith fell silent. He ended the conversation after

Reddy indicated that only the attacker would know the identity of the

intended victim.

On December 21, Reddy interviewed Mr. Dennis Bazuine, who

was at the club on the night of the shooting. Although Bazuine did

not see the shooting, he had spoken with a patron who claimed he saw

it. On January 6, he introduced Reddy to Mr. Kevin Earle. Earle told

Reddy he had been in the club's parking lot at the time of the shooting. He said he saw the gunman, who was wearing a multicolored ski

jacket, firing the shots. Earle recognized him as an older gentleman

who regularly parked his black Rolls Royce in the fire lane in front

of the club. After the man fired the shots, Earle saw him run up a hill

and get into a car on Padonia Road. He did not see the black Rolls

Royce on the club's parking lot at that time. Reddy asked Earle why

he had not reported this information to the police earlier. He

explained that he did tell an officer on the scene what he had witnessed. Earle also told Reddy that he did not know Young.

On January 10, 1994, Reddy sought a warrant for the arrest of Robert Smith. Three days later she sought a warrant authorizing a search

of Smith's house. Both warrants were issued and executed. Smith was

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charged with attempted murder, assault, handgun violations, and reckless endangerment. At a pretrial hearing during which Smith challenged the state's evidence, the state court determined that sufficient

evidence existed to remand the case for trial. Following a bench trial,

Smith was acquitted of all charges.

On January 17, 1995, Smith filed this case in district court. The

district court found that Reddy was entitled to qualified immunity and

granted her motion for summary judgment. The district court denied

Smith's subsequent motion to vacate and set aside the judgment.

Smith appealed both rulings.

II

The ultimate issue presented in this appeal is whether the district

court properly granted Officer Reddy qualified immunity. Although

we conclude that Reddy is entitled to immunity, we reach that conclusion by means of a somewhat different analysis than the district court.

The district court held that if a plaintiff alleges that an officer

obtained a warrant by misleading a magistrate, the plaintiff must satisfy the subjective standard set forth in Franks v. Delaware, 438 U.S.

154, 155-56 (1978), to overcome a defendant's claim of qualified

immunity. The Franks standard requires "a substantial preliminary

showing that a [material] false statement knowingly and intentionally,

or with reckless disregard for the truth, was included by the affiant in

the warrant affidavit." Id.; United States v. Colkley, 899 F.2d 297, 300

(4th Cir. 1990). Rather than engaging the Franks test, we apply the

qualified immunity analysis, which examines the objective reasonableness of an officer's conduct. Anderson v. Creighton, 483 U.S.

635, 639 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982).

The objective standard pertaining to qualified immunity accommodates the allegation of falsity because a reasonable officer cannot

believe a warrant is supported by probable cause if the magistrate is

misled by statements that the officer knows or should know are false.

See United States v. Leon, 468 U.S. 897, 922-23 (1984).

Law enforcement officers are entitled to qualified immunity from

§ 1983 liability arising from their official discretionary acts that do

not "violate clearly established statutory or constitutional rights of

 6
which a reasonable person would have known." Harlow, 457 U.S. at

818; see also Malley v. Briggs, 475 U.S. 335, 345 (1986). In order to

determine whether an officer's conduct is immunized, this court has

formulated a three-step analysis: (1) identify the right allegedly violated, (2) decide whether that right was clearly established at the time

of the alleged violation, and, if so, (3) determine whether a reasonable

person in the officer's position would have known that his or her

actions violated that right. Pritchett v. Alford , 973 F.2d 307, 312 (4th

Cir. 1992). If the right was not clearly established at the relevant time

or if a reasonable officer might not have known his or her conduct

violated that right, the officer is entitled to immunity.

In this case, Smith alleges that Reddy violated his constitutional

right not to be arrested or searched without probable cause. Although

the arrest and search underlying Smith's claim were authorized by

warrants, he asserts that Reddy obtained the warrants by including

false statements in, and omitting material facts from, the warrant

applications. Smith's position is that, based on the facts known or

readily available to Reddy, it was unreasonable for her to conclude

that the warrants in this case were supported by probable cause. Or,

at the least, Smith argues, the record reveals genuine issues of material fact that precluded the district court from entering summary judgment before discovery.

III

Because the Fourth Amendment right to be arrested only on probable cause is clearly established, the question that remains is whether

a reasonable person in Reddy's position would have thought her

actions violated that right. The reasonableness of Reddy's conduct

does not turn on whether probable cause was, in fact, present. Hunter

v. Bryant, 112 S. Ct. 534, 536 (1991). When an officer acts pursuant

to a warrant, the pertinent question is whether the officer could have

reasonably thought there was probable cause to seek the warrant.

Anderson, 483 U.S. at 638-39; Torchinsky v. Siwinski, 942 F.2d 257,

261 (4th Cir. 1991). Qualified immunity is lost only if "the warrant

application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Malley, 475 U.S. at 344-45.

In other words, an officer is not denied qualified immunity for making

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a mistake, as long as that mistake is reasonable under the circumstances.

When Reddy sought the warrants, the evidence implicating Smith

was substantial. Young's description of the evening's events gave

Smith a plausible motive for the shooting, and he had an opportunity

to fire the shots. Earle's eyewitness account provided direct evidence

that Smith was the gunman. In addition, Earle's report supported and

tended to confirm Young's account. Finally, Smith's conduct during

his second conversation with Reddy, although not unambiguously

incriminating, could certainly be viewed as suspicious. Based on

these facts, a state court determined that probable cause existed and

issued the warrants.

Smith does not contend that the warrant application did not establish probable cause. Rather, he argues that the warrant application

presented an inaccurate and misleading view of the facts. In his view,

because Reddy knew or should have known the actual facts, it was

unreasonable for her to seek the warrants. According to Smith, Reddy

should have doubted the reliability of Earle's statement because he

was not mentioned in the police reports, even though he claimed he

told the police on scene what he had witnessed. Smith also asserts that

any reasonable officer would have questioned Young's credibility in

light of her reputation and her intoxication on the night of the shooting. Finally, Smith suggests that Reddy inadequately investigated the

youth seen running from the club. When these factors are viewed

together, Smith argues, it becomes clear that probable cause was lacking.

We reject Smith's argument. First, although Earle is not mentioned

in the police reports, it was not unreasonable for Reddy to rely on his

statement. Of course, it would have been better if Reddy had tried to

determine why Earle was not mentioned in the reports, but this oversight was not nearly as egregious as Smith portrays it. Although

Reddy spoke with Earle for the first time three weeks after the shooting, it is undisputed that Earle entered the club several minutes after

the shots were fired. Bazuine, who introduced Reddy to Earle, told

Reddy that Earle had described the shooting to him on the night it

took place. Both Earle's story and the version of the story retold by

Bazuine include several specific facts that reveal Earle's knowledge

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of the crime scene. As disinterested parties, neither Earle nor Bazuine

had any apparent motive for hiding the truth. In addition, Earle's

account was consistent with the other evidence implicating Smith.

Although the judge in the criminal trial found Earle's testimony to be

unreliable, a police officer conducting an investigation is not in a

position to make the type of credibility determination that occurs in

the repose of the courtroom. See Torchinsky, 942 F.2d at 262-63.

Reddy could also have reasonably believed that Young's reputation

and intoxication did not seriously undermine the reliability of her

account. Many of the details of her statement were confirmed by disinterested observers and by Smith himself. Also, her account is consistent with Earle's eyewitness account. Although she may not be a

model witness, the police must take complaining witnesses as they

find them. See Torchinsky, 942 F.2d at 263.

Finally, Reddy's failure to pursue the other suspect did not make

it unreasonable for her to seek warrants against Smith. Although an

officer may not disregard "readily available exculpatory evidence of

which [the officer] had been made aware," an officer's failure to pursue a potentially exculpatory lead is not sufficient to negate probable

cause. Torchinsky, 942 F.2d at 264.

Weighing all of the evidence, it is clear that a reasonable police

officer in Reddy's position could find probable cause for the arrest

and search.

IV

Smith protests that he was denied discovery and that summary

judgment is inappropriate. The district court, however, committed no

procedural error.

The Supreme Court has directed that "qualified immunity questions

should be resolved at the earliest possible stage of a litigation."

Anderson, 483 U.S. at 646 n.6. The reason is that qualified immunity

is "an immunity from suit rather than a mere defense to liability; . . .

it is effectively lost if a case is erroneously permitted to go to trial."

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original).

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"[E]ven such pretrial matters as discovery are to be avoided if possible, as `[i]nquiries of this kind can be peculiarly disruptive of effective government.'" Id. at 526 (quoting Harlow, 457 U.S. at 817).

Accordingly, qualified immunity should be addressed at the pleading

or summary judgment stage whenever possible. Pritchett, 973 F.2d at

313. Even so, summary judgment should be granted only when it is

appropriate, that is, when there are no genuine issues of material fact

and the movant is entitled to judgment as a matter of law. Id.

"Subjective factors involving the officer's motives, intent, or propensities are not relevant. The objective nature of the inquiry is specifically intended to limit examination into an officer's subjective

state of mind, and thereby enhance the chances of a speedy disposition of the case." Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994).

If the material facts and the reasonable inferences drawn from those

facts disclose that a reasonable officer could have believed that his or

her actions did not violate the clearly established right, the defendant

is entitled to qualified immunity on summary judgment. See Pritchett,

973 F.2d at 312-13.

V

The basis for Smith's Rule 60(b) motion is newly discovered evidence which he contends reveals that Reddy and other officers made

fraudulent misrepresentations in their summary judgment affidavits.

Smith claims he found, through depositions taken in state court proceedings, evidence demonstrating that the police doubted Young's

credibility and that Reddy's supervisor did not oversee or approve her

investigation. This evidence, Smith argues, directly contradicts statements made in the summary judgment affidavits. Smith also claims

that the affiants misrepresented the facts to make Earle's story seem

more plausible.

Smith's motion is without merit. To prevail, he would need to

prove the alleged misconduct by clear and convincing evidence.

Square Construction Co. v. Washington Metropolitan Area Transit

Authority, 657 F.2d 68, 71 (4th Cir. 1981). Much of the so-called new

evidence cited in Smith's brief appears in the original summary judgment record. More importantly, the few inconsistencies between the

 10
deposition testimony and the affidavits do not even approach clear

and convincing evidence of misconduct.

VI

We affirm the district court's judgment granting Reddy qualified

immunity and its denial of Smith's Rule 60(b)(2) and (3) motion.

No. 95-1956 - AFFIRMED

No. 96-1456 - AFFIRMED

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