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, * * Appe al from the United
v. * States District Cour t * 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

Be fore RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, an d 1 LIMBAUGH, District Judge.

2 LIMBAUGH, District JudgeAlthough 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 - Bi llWalden, 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 Sh eriff Shane Stovall, and Montgomery County, Arkansas under 42 U.S.C. §1983 and supplemental state claims. Specifically, the plaintiffs allege d unreasonable search and seizure, false arrest and malicious prosecution under th e Fourth Am endment; taking of property without due process under the Fifth Amendment; and unreasonable bond under the Eighth Amendment. They furthermore allegedstate claims of trespass, malicious prosecution, and outrage. The defendants sought summary judgment based on the merits of the claims an d 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 Depar tment

initiated an investigation into alleged illegal activity on real property occup iedby Bill Walden, but apparently owned by Bill Walden's mother, Betty Ra e Walden and Bill Walden's son, Billy G. Walden. The investigation initially focused 4All 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 pro perty kept on the premises; however, in 1993 the investigation expanded into alleged drug activity.
A confidential informant and Arkansas State Police Investigator Steve Cle mmons visited (in an undercover capacity) the subject real property several times and spok e with Bill Walden. Some of these conversations were tape-recorded. The conversations (tap ed and untaped) led Arkansas State Police personnel to believe that Bill Walde n 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 appea red 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 la w 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 offi cers and the confidential informant provided recorded testimony in suppo rt of the search warrant application. In addition to the tape-recorde d

conve rsations with Bill Walden, the confidential informant testified, under oath, t o 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 th e
con fidential informant planned to set up a meth lab. He further testified as to Bil l Wa lden's assistance in setting up the meth lab; to the presence of numerous vehicle s with altered identification numbers and other assorted items on the premises; as t o 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 ob served on the real prop erty; i.e. motor vehicles whole and in parts, and tools commonly used t o disassemb le cars. Investigator Clemmons testified to his conversations with Bil l Walden regarding the creation of the meth la b on the real property. Sergeant Wamock testified as to his expertise in the field of auto theft and his prior contact with Bil l Walden regarding an alleged stolen Ford Ranger II pick-up truck.
Investigator Clemmons testified as to the credibility and reliabi lity of information provid ed by the confidential informant. Investigator Clemmons also testified that the confidential informant was considered very reli able by other law enforcement agencies and that he fo und 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 illega l controlled s ubstance activities and stolen property would be found on the premises in question

. He issued a search warrant authorizing the search of "any and all storag e units, locked or unlocked; any and all rental storage units, locked or unlocked"; as well as all outbuildings, enclosure s, 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 p araphernalia, stolen property, weapons, documents relating the

reto, 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 servi ce of the warrant, he was the only one on the property in question. Th e warrant was executed by Sher iff Carmack, various deputy sheriffs in the Montgomery County S heriff's Department, and various law enforcement personnel from th e Ar kansas State Police. The officers searched the premises and property described in the warrant over a four-day period. Numerous items was confisca ted, including but not limited to, semi- automatic weapons, automobile vehicle identification plates, vehicles with alter ed 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 andpossessing stolen property. At his initial appearance, Judge Gayle Ford set hi s 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 hi m with false informat

ion 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 p u rsuant 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 ob tained. In May 1994, the Prosecuting Attorney for Montgomery County nolle prossed all criminal charges against Bill Wal den. On May 20, 1994 a number of items seized we re transferred to the possession of the Federal Bureau of Investigation b y 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 hav e been retained pending further criminal investigation. 6later, 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. §198 3 and state-claims action in district court in March 1996, alleging, among other po ints, that Sheriff Carmack, various Montgomery Co unty deputy sheriffs, and Montgomery County violated their Fourth, Fifth, an d Eigh thAmendment rights in connection with the search and seizure of the propert y occupied b y Bill Walden, the arrest of Bill Walden, and the subsequent forfeitur e proceedings. The defendants filed a motion for summary judgment. They not onl y arg uedthe merits of the plaintiffs' claims, but also argued that they were entitled t o qualified immunity for their actions in connection with the se arch and seizure on March 1, 1993, the setting of the bail b ond, and the initiation of a forfeiture action against the

se arched property. The district court denied the summary judgment motion , 7 concludin g that "various factual issues" remained in dispute regarding, among othe r 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. Defen dants Carmack and Montg omery County now appeal the district court’s ruling. See , Mitchell v. Forsyth , 472 U.S. 511, 530 (1985)(a distr ict 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 th e collateral order doctrine).

II. DISCUSSION Before embarking on a discussion and resolution of the dispute present in thi s ap peal, 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 andAt 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 claim s 8 before this Court.

The Court determines, that des pite the broad coverage of numerous legal issues by the appellees and appellants at oral argument, and in their briefs, only the question of qual ified immunity is properly before us on this appeal. Furthermore, the question of qua lified immunity shall only be addressed in the context of Sheriff Carmack’ s actions with regard to t

he events of March 1, 1993 and bail conditions set for Bill and Billy Walden.
Although the decisio n 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 searc h as part of its background material, but notably, this search is not th e specific subject of any one of the c ounts of the complaint. Furthermore, the parties do not address it in the summary judgment pleadings; instead focusing entirely on th e March 1, 199 3 search. Finally, the July 1994 search is not the subject of any of th e written or oral arguments presented on appeal. The Court determi nes that the plaintiffs' compl aint and this appeal are focused entirely on the events and circumstance s involving the March 1, 1993 search and seizure, arrest of Bill Walden, and bai l condit ions for Bill and Billy Walden. Consequently, the Court will not address an y matter in connection with the alleged warrantless search of Billy W alden'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 -

Alth oughthe parties argue the merits of qualified immunity for appellan t Montgomery County, such arguments are without merit because a muni cipality may not assert qualified immunity as a defense. Leatherman v. Tarrant County Narcotic s Intelligence & Coordination U nit , 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 fo r malicious pros ecution, 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 i s dismissed.
A. Qualified Immunity Standard on Appeal A distri ct court's denial of a defendant's summary judgment motion based o n qualified immunity is an immediately appealable decision, e ven 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 th e existence of qualified immunity.
A defendant official is entitled to summary judgment, if t he record, when viewed in the light most favorable to the plaintiff, the non-moving party, reveals that there is

no genuine is sue as to any material fact regarding the immunity issue and that th e defendant is entitled to judgment as a matter of law. Ripson v. Alles , 21 F.3d. 805, 808 (8th Cir. 1 994). In resolving a case in which the defense of qualified immunity ha s been raised, thi s Court must determine whether the appellees asserted a violation of a fede ral right, whether that right was clearly established, and whether a reasonabl e official i n appellant Carmack's position would have known that his conduct violate d that right. Thus, we are required to undertake a legal ana lysis of whether the appellees' allegations and the evidence presented, taken in the light most- 9 -

favorable to t

he appellees, present one or more claims that appellant Sheriff Carmack vio lated well-established rights of the appellees. Otey v. Marshall, et. al. , 121 F.3 d 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 lig ht most favorable to the appellees. Otey v. Marshall , 121 F.3d at 1155.

The appellees primarily assert that the appellants are liable for violating th e appelle es' constitutional rights because they secured and exercised a search warran t which was not based on p robable cause. They assert that probable cause was lacking because the reliabi lity of the confidential informant was not established. They further assertthat since the search and seizure were illegal, the subsequent forfeitur e proc eedings were initiated in violation of the appellees' due process rights and the y have been unconstitutionally deprived of their property. Finally, appellees Bill an d 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 polic e officers, who exercise some discretionary functions while car rying out their executive duties generally have available to them qualifie d immunityfrom §1983 actions. These persons are immune from suit on the basis o f qualifie d immunity unless their conduct violated clearly established statutory o r constitut ional rights of which a reasonable person would have known. Harlow v

. Fitzgerald , 457 U.S. 800, 818 (1982); George v. Cit y of St. Louis , 26 F.3d. 55, 57 (8th Cir. 1 994). In Anderson v. Creighton , 483 U.S. 635 (1987), the Supreme Cour t 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 entitle d 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]h e contours of the right must be sufficiently clear that a reasonable official woul d understandthat what he is doing violates that right". Anderson , 483 U.S. at 639-40.
Under the "objective legal reasonablen ess standard", courts are not permitted to investigate the subjective motivation of the law enfor cement officer. Harlow , 457 U.S. at 800; Foster v. Metropolitan Airports Commission , 914 F.2d. 1076, 1079 n.4; Gorra v. Hanson , 880 F.2 d. 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 w arrant, "immunity will be lost only where the warrant appl ication 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 i s no question here that the law is established as to the requirement o f 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 discover y 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 on e reasonable conclusion for a jury to reach on whether probable cau se existed, but rather, a court should ask whether the law enforcement officials acted re asonably 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 vali d, a search warrant must be based upon a finding by a neutral an d 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, "ther e 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 th e 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 grudgin g, 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. G ates , 462 U.S. at 245; in hea rsay statements from confidential informants corroborated by independen t in vestigation, United States v. Williams , 10 F.3d. 590, 593 (8th Cir. 1993) (citin g Draper v. United States , 358 U.S. 307, 313 (19 59)); see also , United States v. Mambu Fulgham , 143 F.3d. 399 (8th Cir. 1998); or in observations made by trained la w 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 findin g of probable cause, that finding dese rves 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 af

fidavit contains information provided by a confidential informant, a key issue that must be addressed is the re liability of that informant. See , United States

v. Br own , 49 F.3d. 1346, 1349 (8th Cir. 1995). Information may be sufficientl y reliable to support a probable cause determination if the person providing th e information has a track record of supplying re liable 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 th e information provided by the informant is shown to be reliable because of inde pendent

corroboration, "then it is a permissible inference that the informant i s reliable and that therefore other information that the informant provides, thoug h uncorrobor ated, 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 clearl y establi shed Fourth Amendment rights because the search warrant was issued on th e basis of "false information" given by the confidential informant. They assert that the appellants failed to establish the rel iability and credibility of the confidential informant because neither of the testifying officers had personally worked with the i nformant 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 be fore Judge McKimm. The only persons who testified in connection with the issuance of the March 1, 1993 search warrant were the tw o Arkansas State Police officers, Investigat or 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 issu ing judge. On this basis alone, appellant Carmack is entitled to qualified immunity with regard to the issuance of the searc h warrant.- 13 -

However, accepting for the moment the appellees' arg ument that the confidential informan t was Sheriff Carmack's agent with respect to the beginnings of th e investigat ion, the Court still finds that probable cause for the issuance of the searc h

wa rrant existed. In the present case, the informant's credibility was established, an d his info rmation shown reliable. The information provided by the informant wa s corrobo rated by both Arkansas State Police officers. On more than one occasion , Investigator Clemmons had accompanied the informant to the Walden property an d 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 t

he 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 enforcemen t agencies.

More importantly, the confidential informant appeared in person before th e issuing Judge and gave sworn testimony under oath. The Judge was able to make his own credibility findings necessary for a probable cause determination.

Furtherm ore, no Fourth Amendment violation occurred because even if th e alleg ed misrepresentations of the confidential informant are not considered, th e
re maining portions of the law enforcement officials' testimony was sufficient t o est ablishprobable cause. Under Franks v. Delaware , 438 U.S. 154 (1978), if a n applicat ionor affidavit contains errors reflecting deliberate falsehoods or reckles s disrega rd for the truth, the issuing court must "set aside those statements and the n review the remaining portions of the affidavits to see if what remain[s is] sufficient to esta blishprobable 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 issuin g judge could have fou nd probable cause existed for the issuance of the search warrant. Consequent ly, we find that the testimony given before the issuing judge sufficientl y estab lishedthe reliability and credibility of the confidential informant, and that th e
a p plication and affidavit based upon this testimony provided a substantial basis upon which the issuing judge could conclude that probable cause existed.
Upo n 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 th at their Fourth and Fourteenth Amendment rights

were v iolated because the execution of the search warrant was unreasonable. The y contend that, not only was the search unconstitutional because the search warrant was issued without probable cause, but the resulting seizure of numerous item s 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 i s also constitutional. Asearch 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 a ppellees first argue that the execution of the search warrant wa s unconstitutional because the issuance of the search warrant was constit utionally 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

. Second ly, even if the search warrant had been issued without a proper finding o f probable cause, the officers who executed the warrant acted in the go od faith belief that probabl e cause existed based on the issuance of the warrant. Given the specifi c informationin the search warrant affidavit provided by the taped conversations, th e
swor n testimony of the confidential informant, and the two Arkansas State Polic e officers, it would have been objectively reasonable for the officers executing the search warrant to have relied on the issuing judge’s determinati on that probable cause existed. See , U.S. v. Johnson , 64 F.3d at 1126 (even if facts in affidavit did not give rise t o 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. 199 5) (search warrant not facially invalid and contained sufficient facts tha t of ficers could have executed it with objective good faith reliance on probable caus e determination of magistrate judge).

The ap pellees next argue that the appellants alleged search of the premise s out side the boundaries of the property described in the search warrant and allege d seizu re of personal property beyond the scope of the warrant constituted a n unreasonable search and seizure. They appear to argue that the search of certai n lockers on the property was unreasonable, as was the search of two trailers belonging to appel lee White which were allegedly located on property outside the tract o f property described in the search warrant.
The search warrant provided for t he 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, th e curtilage of

the personal residence at the described real property. Contrary to th e appell ees' assertions, the search warrant clearly authorized the search of all storag e units, either used by the appellees or rented out to third parties, and lo cked 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 th e alleged search of property outside the boundaries of the property described in th e search warrant. Appellee Bill Walden attests that “officers from Montgomery County Sheriff ’s Department, including Sheriff Carmack and officers from other la w enforcement agencies, came upon the property and instituted a full scale search of the entire prop erty including . . . the trailers both on and off the property . . . .” Appellee Bar bara White a/k/a Stone testified, at her deposition, that “well, I had two trailers, I think, that wasn’t even setting on that pro perty. None of it. They shouldn’t have been in none of it.” A review of the record indicates that appellant Carmack failed t o sufficiently show, in order tomaintain his defense of qualified immunity on this claim, that either the trailers in question were, in fact, l ocated on the property described in the

sea rch warrant, or that he reasonably believed that they were on that property. Th e district court did not err in denying summary judgment on this particular claim.

The search warrant authorized t he seizure of any and all items or things defined as drug paraphernalia under Arkansas drug laws; spec ifically described stolen property including motor vehicles, motor vehicle parts, motor vehicle license plates, vehicl e 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 V IN plates, drug paraphernalia, motor vehicle parts, explosives, and assorte d coins.

The appellees argue that items were seized outside the scope of the searc h

war rant because Sheriff Carmack could not give a legal reason for their seizure, an d because these items have been retained. Appellees argue that this is evidence of the appellants’ "bad faith" in e xecuting 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. Seco ndly, Sheriff Carmack did not apply for the search warrant. Th e inves tigationwas supervised by the Arkansas State Police and they applied for th e search warrant. Sheriff Carmack's uncertainty as to why specific items were seized is irrelevant t o the inquiry as to whether his actions in executing the warrant wer e objectively reasonable in light of the wording of the search warrant.
Although the manner by which to execute a search warrant is generallyleft to the discretion of officers executing a warrant, possessi on of a search warrant does not give the exec uting 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 th e general Fourth Amendment proscription against unreasonableness. The `when' an d `how' of otherwise legitimate law enforcement actions may always render such actions

unreaso nable." Hummel-Jones , 25 F.3d at 650. In order to show that a la w enforc ement 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 object

ive police officer on the scene, without regard to the actual intent or motivation of appellant Carmack or someone represent ing the interests of Montgomery Coun ty, 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 wer e allegedly seized from appellee White’s trailers.

There is no question that the search was extensive. However, this fact alon e does n ot make it unreasonable. Regardless of the fact that many of the items wer e "personal property" of one or more of the appellees, the app ellees fail to show how any of the items seized were inconsistent with the parameters of the search warrant. Law enfor cement

officials must have probable cause to believe that items seized i n 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 beli ef `that certain items may be contraband or sto len 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 th e
se arch, objectively reasonable law enforcement officials could have believed that the items sei zed were of such an incriminating nature as to constitute contraband o r 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 seiz ure of any items from these trailers precludes the granting of summary judg ment on the basis of qualified immunity to appellant Carmack on this particula r claim.
D. Taking of Appellees' Property without Due Process Appellees argue that their Fifth and Fourteenth Amendment rights have bee n violated because the issuance and execution of the search warrant constituted a taking of th e appellees' property without just compensation. They contend that the searc h warrant was issued and executed wit hout regard to due process requirements, and that their property is being wrongfully withheld from them.

The appell ees fail to state exactly what process they were denied that th e appellants were obliga

ted 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 is sued following a hearing held before a neutral and detached judicial officer

. Ta pe-recorded conversations with Bill Walden and the sworn testimonies of th e confidential inf

ormant and two Arkansas State Police officers were considered by the judi cial officer. Upon consideration of this evidence, the judicial officer found tha t pro bable 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- 19 -

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 app ellees’ Fifth Amendment due pr ocess rights were not violated. Arkansas provides for adequate state post

deprivation remedies that satisfy due process. Appellees concede that they have failed to exhaust their state post-depriva tion remedy of petitioning the circuit court for return of the sei zed property pursuant to Arkansas statute. ARcrP § 15.2. See Hudson v

. Palm er , 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 Fift h Amendment violation was inappropriate.

E. Excessive Bail Appell ees contend that appellants deprived Bill Walden and Billy Walden o f th eir right to be free from excessive bail. They contend that appellants "set " excessive ly high bonds for Bill and Billy Walden, then refused to accept a propert y bond in lieu of a cash bond which resulted in a period of incarceration bef ore 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 certai n recommendations regarding the a mount 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 i s entitled to qualified immunity on the claim of excessive bail.

Furthermore, assumin g 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- 20 -

app ellees have failed to show that clearly established Eighth Amendment law exist s requiring a property bond to be accepted in lieu of a cash b ond or that a reasonable law enforcement officer would have known, on the information available, that his or he r actions vi olated 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 substitu te a property bail bond for a cash bail bond.

III. CONCLUSION We hold that the district court erred in denying summary judgment to Sherif f Carmack on all claims, except for Ms. White’s Fo urth Amendment claim regarding the allege d unreasonable search and seizure of items from her two trailers. The distric t court’s judgment is reversed except a s to the denial of summary judgment on the basis of qualifie d 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.