* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 16 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TIMOTHY J. WHITE, Plaintiff-Appellant, vs. ARLAN KLUTH; CITY OF LITTLETON; JEFFREY BRITEGAM, Defendants-Appellees. No. 98-1196 (D.C. No. 97-WY-1673-AJ) (D. Colo.)

ORDER AND JUDGMENT *

Before BALDOCK , KELLY , and MURPHY , Circuit Judges.
Plaintiff-Appellant Timothy White brought this civi l rights action pursuant to 42 U.S.C. § 1983 against Defendants-Appellees Ar lan Kluth, Jeffrey Britegam, and City of Littleton arising out of a criminal inv estigation which resulted in his arrest, extradition, and prosecution. The districtcourt granted summary judgment to the Defendants on Mr. White’s § 1983 claims as w ell as state law claims. Mr. White abandons the state law claims in this appeal, but asserts that the court erred in granting summary judgment on his § 1983 claims. Our jurisdiction over this- 2 -

appeal arises under 28 U.S.C. § 1291, and we affirm

.

Background In April 1994, Mr. White and a companion, Katherine Anderson, moved to Colorado from South Carolina. Enroute, they stoppe d in Tennessee where Ms. Anderson, using a false local address, opened a che cking account with $50. When they arrived in Colorado, Ms. Anderson opened another checking account, depositing a $2,500 check drawn on the Tennessee ac count and a $3,000 check made payable to and endorsed by Mr. White. Ms. And erson again used a false address. After a spending spree, Ms. Anderson was arrested i n Colorado in May 1994 on state charges of check fraud. She was rele ased on bail and then vanished. Defendant Officer Kluth of the LittletonPolice Department contacted Mr. White, who told Officer Kluth that he did not know where Ms. Anderson was, but that he had ended their relationship because of her illegal check writing activities. Thirteen months later, in June 1995, O fficer Kluth signed an affidavit of probable cause to arrest Mr. White on the basis of additional evidence which suggested that Mr. White was involved in Ms. Anders on’s fraudulent check scheme. Specifically, Officer Kluth spoke by telep hone to Mark Mitchell, whose wife had written the $3,000 check payable to Mr. Wh ite which Ms. Anderson used- 3 -

to open the Colorado checking account. Mr. Mitchel l indicated that the check was given to Mr. White as a security deposit on rea l estate in South Carolina. The negotiations for the property failed and Mr. Wh ite allegedly told the Mitchells that he would destroy the check. Instead , he endorsed the check to Ms. Anderson. Officer Kluth’s affidavit was reviewed b y three assistant district attorneys, all of whom determined that there was pr obable cause for an arrest warrant. A state magistrate issued the warrant to arrest Mr. White for the crime of felony theft. The warrant was delivered to Defendant Deputy Sheri ff Britegam, who contacted Mr. White by telephone at his home in Mic higan. Deputy Britegam, who also had a warrant for Ms. Anderson’s arrest, a sked if Mr. White knew where Ms. Anderson was, and indicated that cooperation infinding her would be reciprocated by allowing Mr. White to come voluntar ily to Colorado. Deputy Britegam later spoke several times with Mr. White’s attorney regarding the execution of the warrant. Mr. White was subsequent ly picked up in Tennessee, jailed for 45 days, and extradited to Colorado. Mr . White’s criminal case was later dismissed. In this case, Mr. White maintains that Officer Kluth violated his constitutional rights by swearing out an affidavit which lacked probable cause in order to coerce Mr. White into revealing the locati on of Ms. Anderson; that- 4 -

Deputy Britegam conspired with Officer Kluth in att empting to enforce the falsely-obtained warrant; and that the City of Litt leton failed to properly train its law enforcement officers. Mr. White claims that th e district court erred in granting summary judgment to the defendants based o n qualified immunity.

Discussion We review de novo the district court’s grant of sum mary judgment. See Taylor v. Meacham , 82 F.3d 1556, 1559 (10th Cir. 1996). In order to determine whether the motion was properly granted on the basi s of a qualified immunity defense, we must ask whether Mr. White asserted the violation of a clearly established constitutional right, and then whether he has presented facts which if true demonstrate that Defendants’ conduct violated that right. See id. Defendants conceded that the law was clearly establ ished that an arrest warrant must be supported by probable cause at the time of its issuance. Thus the district court went on to consider whether Officer Kluth’s or Deputy Britegam’s actions violated Mr. White’s right to be free of a warrantless arrest. The relevant question is “whether a reasonably well-trained offi cer . . . would have known that his affidavit failed to establish probable cause an d that he should not have applied for the warrant.” Malley v. Briggs , 475 U.S. 335, 345 (1986). As to Officer Kluth, the district court found that Mr. White failed to offer- 5 -

any evidence to support his allegation that OfficerKluth submitted the affidavit, knowing that it lacked probable cause, merely in or der to coerce Mr. White into revealing the whereabouts of Ms. Anderson. We agre e. Mr. White complains that, in making its finding, the district court mad e inferences only in favor of Officer Kluth. Thus he points to the conflicting e vidence facing Officer Kluth at the time he swore out the affidavit, and argues that Officer Kluth should not have accepted Ms. Anderson’s and the Mitchells’ version of events over his own. However, apart from his own assertions, he fails to produce evidence showing that, faced with the conflicting evidence, “no offi cer of reasonable competence would have requested the warrant.” Id. at 346 n.9. In contrast, Officer Kluth offered affidavits from experienced police officers who maintain that a reasonable officer in his position would have found probable c ause to arrest Mr. White. In addition, Officer Kluth submitted his affidavit forreview to three assistant district attorneys, all of whom independently determined that there was probable cause. Having reviewed the record, we are satisfied that O fficer Kluth did not violate Mr. White’s Fourth and Fourteenth Amendment rights. Mr. White alleges that Deputy Britegam “was part of a conspiracy to charge, arrest and prosecute [him] for a non-existe nt crime.” Aplt. Brief at 21. The district court found that there was no evidence other than Mr. White’s assertions that a there was a conspiracy, and that Deputy Britegam was- 6 -

objectively reasonable in enforcing a facially vali d warrant. We agree that there is no evidence in the record to support Mr. White’s theory of a conspiracy, and that Deputy Britegam was not required to investigat e the underlying facts of a facially valid warrant. See Baker v. McCollan , 443 U.S. 137, 145-46 (1979). Finally, because neither Officer Kluth nor Deputy B ritegam violated Mr. White’s constitutional rights, Mr. White’s claims a gainst the City of Littleton also fail. See Webber v. Mefford , 43 F.3d 1340, 1344-45 (10th Cir. 1994) (“A claim of inadequate training, supervision, and policies u nder § 1983 cannot be made out against a supervisory authority absent a finding of a constitutional violation by the person supervised.”). AFFIRMED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge