The Hon. Richard S. Arnold stepped down as Chief Judge of the United 1

States Court of Appeals for the Eighth Circuit at the close of business on April 17,

1998. He has been succeeded by the Hon. Pasco M. Bowman II.

 The Hon. Stephen N. Limbaugh, United States District Judge for the 2

Eastern District of Missouri, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 

No. 97-3422

 

Bill Walden; Barbara White; *

Betty Rae Walden; and Billy G. Walden, *

*

Appellees, *

* Appeal from the United 

v. * States District Court

* for the Western District

James Roy Carmack, Sheriff, Montgomery County; * of Arkansas

Montgomery County, Arkansas, a political *

subdivision, State of Arkansas, *

*

Appellants. *

 

Submitted: February 10, 1998

 Filed: September 28 , 1998

 

Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and

1

LIMBAUGH, District Judge. 2

LIMBAUGH, District Judge
Although counsel entered his appearance on behalf of all of the defendants, 3

the notice of appeal clearly names only defendants Carmack and Montgomery

County as the parties filing the notice of appeal. Consequently, this Court only

recognizes defendants Carmack and Montgomery County as the appellants of

record. 

One of the numerous gaps of information present in this appeal is who was 4

residing on this property besides Bill Walden at the time in question. Although not

material to the appeal, it appears that Betty Rae Walden and Barbara White a/k/a

Stone were also residing on this property.

- 2 -

Bill Walden, Betty Rae Walden, Billy G. Walden, and Barbara White a/k/a

Barbara Stone filed suit against Sheriff James R. Carmack, Deputy Sheriff Terry Black,

Deputy Sheriff Mary Williams, Deputy Sheriff Gary Grey, Deputy Sheriff J.L.

Wheeler, Deputy Sheriff Shane Stovall, and Montgomery County, Arkansas under 42

U.S.C. §1983 and supplemental state claims. Specifically, the plaintiffs alleged

unreasonable search and seizure, false arrest and malicious prosecution under the

Fourth Amendment; taking of property without due process under the Fifth

Amendment; and unreasonable bond under the Eighth Amendment. They furthermore

alleged state claims of trespass, malicious prosecution, and outrage. The defendants

sought summary judgment based on the merits of the claims and on qualified immunity.

The district court summarily determined that genuine issues of fact existed and denied

their motion, and Carmack and Montgomery County appeal that finding.3

I. BACKGROUND

In 1992, the Arkansas State Police and the Montgomery County Sheriff's

Department initiated an investigation into alleged illegal activity on real property

occupied by Bill Walden, but apparently owned by Bill Walden's mother, Betty Rae

Walden and Bill Walden's son, Billy G. Walden. The investigation initially focused 4
All the documents filed before this Court, including the appellate briefs, vary 5

in their spelling of these two Arkansas State Police officers' names. Simply as a

matter of efficiency, the Court will spell their names as "Clemmons" and

"Wamock". Apologies are extended to these officers for any inadvertent

misspelling of their names. 

- 3 -

upon alleged stolen property kept on the premises; however, in 1993 the investigation

expanded into alleged drug activity. 

A confidential informant and Arkansas State Police Investigator Steve Clemmons

visited (in an undercover capacity) the subject real property several times and spoke

with Bill Walden. Some of these conversations were tape-recorded. The conversations

(taped and untaped) led Arkansas State Police personnel to believe that Bill Walden

was voluntarily assisting the confidential informant with setting up a methamphetamine

(meth) lab on the real property, and offering to sell allegedly stolen merchandise to the

confidential informant. 

On March 1, 1993 Arkansas State Police Investigator Clemmons, Arkansas State

Police Sergeant Phillip Wamock , and the confidential informant appeared before Judge 5

William H. McKimm with an application for a search warrant for the subject Walden

property. This same date, a judicial hearing was held to determine if probable cause

to issue the search warrant existed. None of the defendants, nor any other law

enforcement personnel from Montgomery County appeared before Judge McKimm or

participated in the hearing in connection with the issuance of the search warrant. 

The police officers and the confidential informant provided recorded testimony

in support of the search warrant application. In addition to the tape-recorded

conversations with Bill Walden, the confidential informant testified, under oath, to

other conversations he had with Bill Walden. He testified as to his conversations
- 4 -

with Bill Walden regarding the rental of a house on the property in which the

confidential informant planned to set up a meth lab. He further testified as to Bill

Walden's assistance in setting up the meth lab; to the presence of numerous vehicles

with altered identification numbers and other assorted items on the premises; as to

conversations with Bill Walden in which Bill Walden offered to sell him a Ford pick-up

below the fair market value; and as to Bill Walden's possession of one or more guns.

 Both Arkansas State Police officers testified as to what they observed on the real

property; i.e. motor vehicles whole and in parts, and tools commonly used to

disassemble cars. Investigator Clemmons testified to his conversations with Bill

Walden regarding the creation of the meth lab on the real property. Sergeant Wamock

testified as to his expertise in the field of auto theft and his prior contact with Bill

Walden regarding an alleged stolen Ford Ranger II pick-up truck. 

Investigator Clemmons testified as to the credibility and reliability of information

provided by the confidential informant. Investigator Clemmons also testified that the

confidential informant was considered very reliable by other law enforcement agencies

and that he found the confidential informant's information provided during the current

investigation to be extremely reliable and credible. 

The reviewing judge found probable cause to exist that evidence of illegal

controlled substance activities and stolen property would be found on the premises in

question. He issued a search warrant authorizing the search of "any and all storage

units, locked or unlocked; any and all rental storage units, locked or unlocked"; as well

as all outbuildings, enclosures, or structures within, as well as outside, the curtilage of

the personal residence at the described real property. The search warrant authorized

the search for and seizure of drug paraphernalia, stolen property, weapons, documents

relating thereto, and any and all things considered contraband or evidence of criminal

activity.
The parties dispute as to whether some items have been retained pursuant to 6

an IRS tax lien and/or as part of a bankruptcy proceeding. As will be discussed

- 5 -

On March 1, 1993 the search warrant was served on Bill Walden. At the time

of the service of the warrant, he was the only one on the property in question. The

warrant was executed by Sheriff Carmack, various deputy sheriffs in the Montgomery

County Sheriff's Department, and various law enforcement personnel from the

Arkansas State Police. The officers searched the premises and property described in

the warrant over a four-day period. Numerous items was confiscated, including but not

limited to, semi-automatic weapons, automobile vehicle identification plates, vehicles

with altered or destroyed vehicle identification numbers, various tools, and numerous

knives. The items seized were documented on an inventory list.

Bill Walden was arrested and charged with violating controlled substance laws

and possessing stolen property. At his initial appearance, Judge Gayle Ford set his

bond at $75,000.00. This was later reduced by Judge Ford to $25,000.00. Although

Sheriff Carmack generally accepts a property bond in lieu of a cash bond, he refused

to accept a property bond from Bill Walden because Bill Walden had provided him

with false information with regard to a property bond in a prior incident. Bill Walden

remained in custody for approximately sixty (60) days before making bond. 

State forfeiture proceedings were later instituted against the subject real property

pursuant to Arkansas' drug forfeiture statute, Ark.Code.Ann. §5-64-505. It is unclear

as to whether these proceedings were dismissed prior to completion, or if the forfeiture

was obtained. In May 1994, the Prosecuting Attorney for Montgomery County nolle

prossed all criminal charges against Bill Walden. On May 20, 1994 a number of items

seized were transferred to the possession of the Federal Bureau of Investigation by

order of Judge Gayle Ford. It is unclear as to the status of the remaining items,

although it appears that some have been returned to the plaintiffs, while others have

been retained pending further criminal investigation.6
later, the status of these items is not fatal to the defendants' qualified immunity

defense since plaintiffs have available to them a state post-deprivation remedy. 

The case was presided over by a Magistrate Judge by consent of the parties. 7

See 28 U.S.C. § 636(c).

- 6 -

The plaintiffs filed a 42 U.S.C. §1983 and state-claims action in district court in

March 1996, alleging, among other points, that Sheriff Carmack, various Montgomery

County deputy sheriffs, and Montgomery County violated their Fourth, Fifth, and

Eighth Amendment rights in connection with the search and seizure of the property

occupied by Bill Walden, the arrest of Bill Walden, and the subsequent forfeiture

proceedings. The defendants filed a motion for summary judgment. They not only

argued the merits of the plaintiffs' claims, but also argued that they were entitled to

qualified immunity for their actions in connection with the search and seizure on March

1, 1993, the setting of the bail bond, and the initiation of a forfeiture action against the

searched property. The district court denied the summary judgment motion,

7

concluding that "various factual issues" remained in dispute regarding, among other

things, the issuance of the March 1, 1993 search warrant and whether the execution of

the search warrant exceeded the scope of the search warrant. Defendants Carmack and

Montgomery County now appeal the district court’s ruling. See, Mitchell v. Forsyth,

472 U.S. 511, 530 (1985)(a district court's denial of a claim of qualified immunity, "to

the extent that it turns on an issue of law" is an appealable final decision under the

collateral order doctrine). 

II. DISCUSSION

Before embarking on a discussion and resolution of the dispute present in this

appeal, it is necessary to clarify exactly what the dispute on appeal is and, more so,

what it is not. The appellees in this appeal appear to be all of the original plaintiffs.

As stated before, the only appellants of record in this matter are Sheriff Carmack and
At oral argument, appellees' counsel conceded that the remaining deputy 8

sheriffs defendants were entitled to qualified immunity with regard to the issuance of

the search warrant for the search conducted on March 1, 1993. 

- 7 -

Montgomery County. The real confusion lies in the substance of the legal claims

8

before this Court.

The Court determines, that despite the broad coverage of numerous legal issues

by the appellees and appellants at oral argument, and in their briefs, only the question

of qualified immunity is properly before us on this appeal. Furthermore, the question

of qualified immunity shall only be addressed in the context of Sheriff Carmack’s

actions with regard to the events of March 1, 1993 and bail conditions set for Bill and

Billy Walden.

Although the decision denying summary judgment summarily refers to a search

conducted in July 1994 on a piece of property allegedly owned by Billy Walden as one

of the factual issues remaining in dispute, this Court finds that the July 1994 search is

not a material fact relevant to this lawsuit. The plaintiffs' complaint refers to the July

1994 search as part of its background material, but notably, this search is not the

specific subject of any one of the counts of the complaint. Furthermore, the parties do

not address it in the summary judgment pleadings; instead focusing entirely on the

March 1, 1993 search. Finally, the July 1994 search is not the subject of any of the

written or oral arguments presented on appeal. The Court determines that the plaintiffs'

complaint and this appeal are focused entirely on the events and circumstances

involving the March 1, 1993 search and seizure, arrest of Bill Walden, and bail

conditions for Bill and Billy Walden. Consequently, the Court will not address any

matter in connection with the alleged warrantless search of Billy Walden's real property

in July 1994, or the alleged second warrant search of this same property in July 1994,

or the subsequent arrest of Billy Walden.
- 8 -

Although the parties argue the merits of qualified immunity for appellant

Montgomery County, such arguments are without merit because a municipality may not

assert qualified immunity as a defense. Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit, 507 U.S. 163, 166 (1993). This appeal, as asserted

by appellant Montgomery County, is dismissed.

Finally, it appears that the appellees have abandoned their § 1983 claim for

malicious prosecution, leaving only their state claim for malicious prosecution viable;

however, the issue of qualified immunity is not relevant to a state claim for malicious

prosecution. Thus, this appeal as to the state claim of malicious prosecution is

dismissed.

A. Qualified Immunity Standard on Appeal

A district court's denial of a defendant's summary judgment motion based on

qualified immunity is an immediately appealable decision, even though the denial is not

a final judgment. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). In an appeal from the

denial of a motion for summary judgment based on qualified immunity, the appellate

court has jurisdiction to review, de novo, the abstract issues of law relating to the

existence of qualified immunity. 

A defendant official is entitled to summary judgment, if the record, when viewed

in the light most favorable to the plaintiff, the non-moving party, reveals that there is

no genuine issue as to any material fact regarding the immunity issue and that the

defendant is entitled to judgment as a matter of law. Ripson v. Alles, 21 F.3d. 805, 808

(8th Cir. 1994). In resolving a case in which the defense of qualified immunity has

been raised, this Court must determine whether the appellees asserted a violation of a

federal right, whether that right was clearly established, and whether a reasonable

official in appellant Carmack's position would have known that his conduct violated

that right. Thus, we are required to undertake a legal analysis of whether the appellees'

allegations and the evidence presented, taken in the light most
- 9 -

favorable to the appellees, present one or more claims that appellant Sheriff Carmack

violated well-established rights of the appellees. Otey v. Marshall, et. al., 121 F.3d

1150, 1155 (8th Cir. 1997). However, since the district court did not state the set of

facts upon which it made its decision, this Court must review the record to determine

what facts the district court likely assumed, in the light most favorable to the appellees.

Otey v. Marshall, 121 F.3d at 1155. 

The appellees primarily assert that the appellants are liable for violating the

appellees' constitutional rights because they secured and exercised a search warrant

which was not based on probable cause. They assert that probable cause was lacking

because the reliability of the confidential informant was not established. They further

assert that since the search and seizure were illegal, the subsequent forfeiture

proceedings were initiated in violation of the appellees' due process rights and they

have been unconstitutionally deprived of their property. Finally, appellees Bill and

Billy Walden assert that appellants unconstitutionally deprived them of their liberty by

setting an unreasonable bond and refusing a property bond in lieu of a cash bond.

B. Probable Cause to Issue the Search Warrant

Public officials, such as governors, prison officials, school board members,

parole board members, and police officers, who exercise some discretionary functions

while carrying out their executive duties generally have available to them qualified

immunity from §1983 actions. These persons are immune from suit on the basis of

qualified immunity unless their conduct violated clearly established statutory or

constitutional rights of which a reasonable person would have known. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982); George v. City of St. Louis, 26 F.3d. 55, 57 (8th

Cir. 1994). In Anderson v. Creighton, 483 U.S. 635 (1987), the Supreme Court

examined the scope of the Harlow "clearly established" standard in a civil rights action

against a law enforcement officer involved in a warrantless premises search. Whether

a law enforcement official entitled to the protection of qualified immunity may be held

personally liable for the alleged unlawful action will depend on the
- 10 -

"objective legal reasonableness" of the action, which must be assessed in light of the

laws or "legal rules" that were "clearly established" at the time the action occurred.

Anderson, 483 U.S. at 639-40; see, George v. City of St. Louis, 26 F3d at 57; Cole v.

Bone, 993 F.2d. 1328, 1332 (8th Cir. 1993). The Court specifically held that "[t]he

contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right". Anderson, 483 U.S. at 639-40.

Under the "objective legal reasonableness standard", courts are not permitted to

investigate the subjective motivation of the law enforcement officer. Harlow, 457 U.S.

at 800; Foster v. Metropolitan Airports Commission, 914 F.2d. 1076, 1079 n.4; Gorra

v. Hanson, 880 F.2d. 95, 97 (8th Cir. 1989). "A defendant's good faith or bad faith is

irrelevant to the qualified immunity inquiry." Burk v. Beene, 948 F.2d. 489, 494 (8th

Cir. 1991). In the context of a police officer obtaining a search warrant, "immunity will

be lost only where the warrant application is 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 at 57 (citing Malley v. Briggs, 475 U.S. 335, 344-45 (1986)). 

There is no question here that the law is established as to the requirement of

probable cause for the issuance of a search warrant. The question to be addressed is

whether there is a genuine issue of material fact as to whether the appellants' actions

violated the law; i.e., whether the appellants' actions were objectively reasonable under

the established standard of Malley. If a case involves a question of probable cause for

a law enforcement official's actions, the case should not proceed past the discovery

stage if there is any reasonable basis to conclude that probable cause existed. Cross

v. City of Des Moines, 965 F.2d. 629, 632 (8th Cir. 1992) (citing Hunter v. Bryant, 502

U.S. 224, 227-228 (1991)). A defendant need not show that there was only one

reasonable conclusion for a jury to reach on whether probable cause existed, but rather,

a court should ask whether the law enforcement officials acted reasonably under settled

law in the circumstances then existing, not whether
- 11 -

another reasonable, or more reasonable interpretation of the facts can be constructed

years later. Cross, 965 F.2d at 632; see also, Hunter, 502 U.S. at 228.

To be valid, a search warrant must be based upon a finding by a neutral and

detached judicial officer that there is probable cause to believe that evidence,

instrumentalities or fruits of a crime, contraband, or a person for whose arrest there is

probable cause may be found in the place to be searched. Warden v. Hayden, 387 U.S.

294 (1967); Johnson v. United States, 333 U.S. 10 (1948). The standard of probable

cause for the issuing judge is whether, given the totality of the circumstances, "there

is a fair probability that contraband or evidence of a crime will be found in a particular

place." Illinois v. Gates, 462 U.S. 213, 238 (1983); United States v. Johnson, 64 F.3d.

1120, 1126 (8th Cir. 1995). Probable cause is "a fluid concept -- turning on the

assessment of probabilities in particular factual contexts -- not readily, or even usefully,

reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. at 232. Applications

and affidavits should be read with common sense and not in a grudging, hyper technical

fashion. United States v. Ventresca, 380 U.S. 102, 109 (1965). Probable cause may

be found in hearsay statements from reliable persons, Illinois v. Gates, 462 U.S. at 245;

in hearsay statements from confidential informants corroborated by independent

investigation, United States v. Williams, 10 F.3d. 590, 593 (8th Cir. 1993) (citing

Draper v. United States, 358 U.S. 307, 313 (1959)); see also, United States v. Mambu

Fulgham, 143 F.3d. 399 (8th Cir. 1998); or in observations made by trained law

enforcement officers, McDonald v. United States, 335 U.S. 451, 454 (1948). 

Information contained in applications and affidavits for search warrants must be

examined in the totality of the circumstances presented. Illinois v. Gates, 462 U.S. at

230. Once a judicial officer has issued a warrant upon a finding of probable cause, that

finding deserves great deference. Illinois v. Gates, 462 U.S. at 236. Consequently,

when we review the sufficiency of an affidavit supporting a search warrant, resulting

in a finding of probable cause by the issuing judge, we accord great
- 12 -

deference to that issuing judge. 

When an affidavit contains information provided by a confidential informant, a

key issue that must be addressed is the reliability of that informant. See, United States

v. Brown, 49 F.3d. 1346, 1349 (8th Cir. 1995). Information may be sufficiently

reliable to support a probable cause determination if the person providing the

information has a track record of supplying reliable information, or if it is corroborated

by independent evidence. U.S. v. Williams, 10 F3d at 593 (citing Draper, 358 U.S. at

313). If the information provided by the informant is shown to be reliable because of

independent corroboration, "then it is a permissible inference that the informant is

reliable and that therefore other information that the informant provides, though

uncorroborated, is also reliable." U.S. v. Williams, 10 F.3d at 593 (citing Illinois v.

Gates, 462 U.S. at 233-34; Draper, 358 U.S. at 313). 

In the present case, appellees argue that the appellants violated their clearly

established Fourth Amendment rights because the search warrant was issued on the

basis of "false information" given by the confidential informant. They assert that the

appellants failed to establish the reliability and credibility of the confidential informant

because neither of the testifying officers had personally worked with the informant prior

to the Walden investigation. We find these arguments meritless.

Firstly, it is undisputed that neither Sheriff Carmack nor anyone connected with

Montgomery County testified before Judge McKimm. The only persons who testified

in connection with the issuance of the March 1, 1993 search warrant were the two

Arkansas State Police officers, Investigator Clemmons and Sergeant Wamock, and the

confidential informant. It is clearly established that neither Sheriff Carmack nor anyone

connected with Montgomery County participated in any manner with the representation

or misrepresentation of information to the issuing judge. On this basis alone, appellant

Carmack is entitled to qualified immunity with regard to the issuance of the search

warrant.
- 13 -

However, accepting for the moment the appellees' argument that the confidential

informant was Sheriff Carmack's agent with respect to the beginnings of the

investigation, the Court still finds that probable cause for the issuance of the search

warrant existed. In the present case, the informant's credibility was established, and

his information shown reliable. The information provided by the informant was

corroborated by both Arkansas State Police officers. On more than one occasion,

Investigator Clemmons had accompanied the informant to the Walden property and

observed both the property and Bill Walden. Taped conversations with Bill Walden

corroborated the informant's testimony. Sergeant Wamock testified that he personally

observed items on the property which corroborated the observations of the informant.

In all relevant respects, both long-time experienced law enforcement officers verified

the accuracy of the informant's information. Finally, Investigator Clemmons testified

as to the informant's reliability and credibility working with other law enforcement

agencies. 

More importantly, the confidential informant appeared in person before the

issuing Judge and gave sworn testimony under oath. The Judge was able to make his

own credibility findings necessary for a probable cause determination.

Furthermore, no Fourth Amendment violation occurred because even if the

alleged misrepresentations of the confidential informant are not considered, the

remaining portions of the law enforcement officials' testimony was sufficient to

establish probable cause. Under Franks v. Delaware, 438 U.S. 154 (1978), if an

application or affidavit contains errors reflecting deliberate falsehoods or reckless

disregard for the truth, the issuing court must "set aside those statements and then

review the remaining portions of the affidavits to see if what remain[s is] sufficient to

establish probable cause." United States v. I.I. Ozar, 50 F.3d. 1440, 1443 (8th Cir.

1995) (citing United States v. Garcia, 785 F.2d. 214, 222 (8th Cir. 1986)); see also,

Schwartz v. Pridy, 94 F.3d. 453, 457 (8th Cir. 1996). Here, there was enough
- 14 -

independent evidence consisting of the taped conversations with Bill Walden, and the

personal observations of the two law enforcement officials from which the issuing

judge could have found probable cause existed for the issuance of the search warrant.

Consequently, we find that the testimony given before the issuing judge sufficiently

established the reliability and credibility of the confidential informant, and that the

application and affidavit based upon this testimony provided a substantial basis upon

which the issuing judge could conclude that probable cause existed.

Upon review of the record in a light most favorable to the appellees, the Court

finds that appellant Carmack did not violate the clearly established Fourth Amendment

right against issuance of a search warrant without probable cause, and thus, is entitled

to summary judgment on the basis of qualified immunity on this claim. 

C. Unreasonable Execution of the Search Warrant

The appellees next contend that their Fourth and Fourteenth Amendment rights

were violated because the execution of the search warrant was unreasonable. They

contend that, not only was the search unconstitutional because the search warrant was

issued without probable cause, but the resulting seizure of numerous items went beyond

the scope of the search warrant. These arguments also are not persuasive.

Although the search warrant was issued after a proper finding of probable cause,

it does not necessarily follow that the execution of a valid warrant is also constitutional.

A search warrant can be based on the best of probable cause, but if the officers who

execute it overstep its self-contained limits, the execution becomes unconstitutional.

The appellees first argue that the execution of the search warrant was

unconstitutional because the issuance of the search warrant was constitutionally flawed.

This argument is meritless for two reasons. Firstly, this argument is mooted
- 15 -

by our determination that the issuance of the search warrant was constitutional.

Secondly, even if the search warrant had been issued without a proper finding of

probable cause, the officers who executed the warrant acted in the good faith belief that

probable cause existed based on the issuance of the warrant. Given the specific

information in the search warrant affidavit provided by the taped conversations, the

sworn testimony of the confidential informant, and the two Arkansas State Police

officers, it would have been objectively reasonable for the officers executing the search

warrant to have relied on the issuing judge’s determination that probable cause existed.

See, U.S. v. Johnson, 64 F.3d at 1126 (even if facts in affidavit did not give rise to

probable cause, officers acted in good faith based on the issuance of the warrant and

specific information contained therein); United States v. Smith, 63 F.3d 766, 769 (8th

Cir. 1995) (search warrant not facially invalid and contained sufficient facts that

officers could have executed it with objective good faith reliance on probable cause

determination of magistrate judge).

The appellees next argue that the appellants alleged search of the premises

outside the boundaries of the property described in the search warrant and alleged

seizure of personal property beyond the scope of the warrant constituted an

unreasonable search and seizure. They appear to argue that the search of certain

lockers on the property was unreasonable, as was the search of two trailers belonging

to appellee White which were allegedly located on property outside the tract of

property described in the search warrant.

The search warrant provided for the search of "any and all storage units, locked

or unlocked, any and all rental storage units, locked or unlocked." The warrant further

identified all outbuildings, enclosures, or structures within, as well as outside, the

curtilage of the personal residence at the described real property. Contrary to the

appellees' assertions, the search warrant clearly authorized the search of all storage

units, either used by the appellees or rented out to third parties, and locked or unlocked.

 However, appellee White’s claim that her two trailers were unreasonably
- 16 -

searched and items therein seized does raise a material issue of fact regarding the

alleged search of property outside the boundaries of the property described in the

search warrant. Appellee Bill Walden attests that “officers from Montgomery County

Sheriff’s Department, including Sheriff Carmack and officers from other law

enforcement agencies, came upon the property and instituted a full scale search of the

entire property including . . . the trailers both on and off the property . . . .” Appellee

Barbara White a/k/a Stone testified, at her deposition, that “well, I had two trailers, I

think, that wasn’t even setting on that property. None of it. They shouldn’t have been

in none of it.” A review of the record indicates that appellant Carmack failed to

sufficiently show, in order to maintain his defense of qualified immunity on this claim,

that either the trailers in question were, in fact, located on the property described in the

search warrant, or that he reasonably believed that they were on that property. The

district court did not err in denying summary judgment on this particular claim.

The search warrant authorized the seizure of any and all items or things defined

as drug paraphernalia under Arkansas drug laws; specifically described stolen property

including motor vehicles, motor vehicle parts, motor vehicle license plates, vehicle

identification number plates (VIN), and documents pertaining thereto; and "any and all

items or things considered contraband or is evidence of criminal activity pursuant to the

laws of the State of Arkansas and the United States of America." The items seized,

included but were not limited to, guns, knives, ammunition, power tools, motor vehicles

with VIN plates, drug paraphernalia, motor vehicle parts, explosives, and assorted

coins. 

The appellees argue that items were seized outside the scope of the search

warrant because Sheriff Carmack could not give a legal reason for their seizure, and

because these items have been retained. Appellees argue that this is evidence of the

appellants’ "bad faith" in executing the search warrant. Firstly, the appellants' alleged

"bad faith" is irrelevant to the qualified immunity inquiry. Burk v. Beene, 948 F.2d.
- 17 -

at 494. Secondly, Sheriff Carmack did not apply for the search warrant. The

investigation was supervised by the Arkansas State Police and they applied for the

search warrant. Sheriff Carmack's uncertainty as to why specific items were seized is

irrelevant to the inquiry as to whether his actions in executing the warrant were

objectively reasonable in light of the wording of the search warrant. 

Although the manner by which to execute a search warrant is generally left to the

discretion of officers executing a warrant, possession of a search warrant does not give

the executing officers carte blanche as to its execution. Hummel-Jones, et. al. v.

Strope, et. al., 25 F.3d. 647, 650 (8th Cir. 1994). "The manner in which a warrant is

executed is always subject to judicial review to ensure that it does not traverse the

general Fourth Amendment proscription against unreasonableness. The `when' and

`how' of otherwise legitimate law enforcement actions may always render such actions

unreasonable." Hummel-Jones, 25 F.3d at 650. In order to show that a law

enforcement official is not entitled to qualified immunity with regard to the execution

of a search warrant, the appellees must establish that from the perspective of a

reasonably objective police officer on the scene, without regard to the actual intent or

motivation of appellant Carmack or someone representing the interests of Montgomery

County, their conduct was not objectively reasonable. Graham v. Connor, 490 U.S.

386, 396-97 (1989). Taking the facts in the light most favorable to the appellees, we

find that the seizure of items was reasonable, except to the extent that items were

allegedly seized from appellee White’s trailers.

There is no question that the search was extensive. However, this fact alone

does not make it unreasonable. Regardless of the fact that many of the items were

"personal property" of one or more of the appellees, the appellees fail to show how any

of the items seized were inconsistent with the parameters of the search warrant. Law

enforcement officials must have probable cause to believe that items seized in

connection with a valid search warrant are associated with suspected criminal activity.

"Probable cause demands not that an officer be `sure' or `certain' but only
- 18 -

that the facts available to a reasonably cautious man would warrant a belief `that certain

items may be contraband or stolen property or useful as evidence of a crime.'" United

States v. Weinbender, 109 F.3d. 1327, 1330 (8th Cir. 1997)(citations omitted). Given

the wording of the search warrant, and the known circumstances giving rise to the

search, objectively reasonable law enforcement officials could have believed that the

items seized were of such an incriminating nature as to constitute contraband or

evidence of criminal activity. Appellant Carmack is entitled to qualified immunity on

this claim, except as regards his alleged seizure of items from appellee White’s trailers.

Since a material issue of fact exists as to the location of these trailers at the time of the

search, the seizure of any items from these trailers precludes the granting of summary

judgment on the basis of qualified immunity to appellant Carmack on this particular

claim. 

D. Taking of Appellees' Property without Due Process

Appellees argue that their Fifth and Fourteenth Amendment rights have been

violated because the issuance and execution of the search warrant constituted a taking

of the appellees' property without just compensation. They contend that the search

warrant was issued and executed without regard to due process requirements, and that

their property is being wrongfully withheld from them. 

The appellees fail to state exactly what process they were denied that the

appellants were obligated to provide. Taking the facts in a light most favorable to the

appellees, it is clear that the appellees received all of the due process required under

the Fifth Amendment as regards the issuance of the search warrant. The search warrant

was issued following a hearing held before a neutral and detached judicial officer.

Tape-recorded conversations with Bill Walden and the sworn testimonies of the

confidential informant and two Arkansas State Police officers were considered by the

judicial officer. Upon consideration of this evidence, the judicial officer found that

probable cause existed for the issuance of the search warrant. The appellees’ Fifth

Amendment due process rights were protected with regard to the issuance of the
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search warrant on March 1, 1993.

However, even if the execution of the search warrant was unreasonable as to the

alleged seizure of items from appellee White’s trailers, the appellees’ Fifth Amendment

due process rights were not violated. Arkansas provides for adequate state postdeprivation remedies that satisfy due process. Appellees concede that they have failed

to exhaust their state post-deprivation remedy of petitioning the circuit court for return

of the seized property pursuant to Arkansas statute. ARcrP § 15.2. See Hudson v.

Palmer, 468 U.S. 417, 533 (1984); see also, Orebaugh v. Caspari, 910 F.2d 526 (8th

Cir. 1990). Denial of summary judgment based on qualified immunity for a Fifth

Amendment violation was inappropriate.

E. Excessive Bail

Appellees contend that appellants deprived Bill Walden and Billy Walden of

their right to be free from excessive bail. They contend that appellants "set"

excessively high bonds for Bill and Billy Walden, then refused to accept a property

bond in lieu of a cash bond which resulted in a period of incarceration before being able

to make bond. 

In Arkansas, the function of determining the appropriateness of pretrial release,

the amount of bail bond, and the type of bail bond lies solely with the judicial officer.

ARcrP §8.5; ARcrP §9.2. Assuming that Sheriff Carmack did make certain

recommendations regarding the amount of the bond, setting the bail bond is entirely at

the discretion of the presiding judge. Since the setting of bail bond is a function of the

judicial officer and not of the Sheriff of Montgomery County, appellant Carmack is

entitled to qualified immunity on the claim of excessive bail.

Furthermore, assuming again that Sheriff Carmack refused to accept a property

bond in lieu of a cash bond, appellees fail to establish any constitutional right to a

certain type of bond. Appellant Carmack is entitled to qualified immunity since
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appellees have failed to show that clearly established Eighth Amendment law exists

requiring a property bond to be accepted in lieu of a cash bond or that a reasonable law

enforcement officer would have known, on the information available, that his or her

actions violated clearly established Eighth Amendment law regarding the substitution

of a property bail bond for a cash bail bond. Appellant Carmack is entitled to qualified

immunity on the appellees' claim regarding refusal to substitute a property bail bond for

a cash bail bond.

III. CONCLUSION

We hold that the district court erred in denying summary judgment to Sheriff

Carmack on all claims, except for Ms. White’s Fourth Amendment claim regarding the

alleged unreasonable search and seizure of items from her two trailers. The district

court’s judgment is reversed except as to the denial of summary judgment on the basis

of qualified immunity to Sheriff Carmack as regards Ms. White’s Fourth Amendment

claims. This case is remanded for further proceedings consistent with this opinion.

A true copy.

Attest:

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