United States Court of Appeals

For the First Circuit

No. 04-1761

JOHN E. COX III,

Plaintiff, Appellant,

v.

JOHN HAINEY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

 Selya, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lynch, Circuit Judge.

Timothy E. Zerillo and Timothy Zerillo Law Offices, LLC on

brief for appellant.

G. Steven Rowe, Attorney General, and William R. Fisher,

Assistant Attorney General, on brief for appellee.

December 1, 2004
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SELYA, Circuit Judge. In this case, the district court

entered summary judgment in favor of defendant-appellee John

Hainey, a state trooper, on a false arrest claim under 42 U.S.C. §

1983. Plaintiff-appellant John E. Cox III assigns error to the

court's determination that qualified immunity shielded Hainey from

suit. After careful perscrutation of an oddly configured factual

record (including consideration of how, if at all, an officer's

pre-arrest consultation with a prosecutor affects the qualified

immunity calculus), we affirm the district court's order.

I. BACKGROUND

On an appeal from a summary judgment order, an appellate

court is held to the same ground rules that bound the trial court

in the proceedings below: it must "construe the record and all

reasonable inferences from it in favor of the nonmovant." Perez v.

Volvo Car Corp., 247 F.3d 303, 310 (1st Cir. 2001). We rehearse

the facts with this construct in mind. Because the reasonableness

of Trooper Hainey's conclusion that he had probable cause to make

an arrest is the axis of this appeal, we concentrate on the

information available to him at the time of the arrest.

Our saga starts in Norway, Maine. Members of the Norway

police department arrested Joseph Cox, the appellant's fifteenyear-old son, for alleged involvement in a series of snowmobile

thefts that occurred during the winter of 2000-2001. In the course

of the ensuing investigation, an informant volunteered that Joseph
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had sold drugs to high school students. The informant expressed a

willingness to participate in a controlled buy, and the local

gendarmes arranged a sting. The Maine State Police were asked to

assist.

On April 28, 2001 — all dates are in that year unless

otherwise indicated — the informant, fitted with an electronic

listening device, drove to the appellant's residence in Woodstock,

Maine. Hainey and a local police officer followed in a second

vehicle. Once there, the informant went inside and purchased four

tablets of Roxicodone (a non-time-released version of Oxycontin)

from Joseph Cox. Hainey, who listened to the conversation by

transmitter, overheard Joseph tell the informant that his father

recently had returned from a "drug run" to North Carolina and that

he could have his father procure "an eighth of marijuana" for

future purchase.

Based on what he knew to that point, Hainey obtained a

warrant to search the Cox home for scheduled drugs, drug

paraphernalia, and kindred items related to furnishing or

trafficking in drugs. Hainey and other officers conducted the

search on the morning of May 9. In Joseph's bedroom, they found

two Roxicodone tablets and drug paraphernalia. In the kitchen,

they found a triple-beam scale with marijuana residue, a bottle

containing sixty-five Roxicodone tablets, and an empty Roxicodone

bottle. The appellant was present during the search. He told the
1The appellant's brief makes several references to another

crime: aggravated trafficking of a scheduled drug in violation of

Me. Rev. Stat. Ann. tit. 17-A, § 1103. Though the appellant was

later charged with that offense by an assistant attorney general,

the record indicates that Hainey never made any recommendation to

that effect. Thus, for purposes of our qualified immunity

analysis, we consider only the reasonableness of Hainey's decision

to arrest the appellant for aggravated furnishing of a scheduled

drug.

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officers that the Roxicodone had been legally prescribed for his

back condition, that he never had provided pills to his son or to

anyone else (but, rather, had kept them on his person at all times

except while sleeping), and that he had called his pharmacist on

April 21 because he was concerned that a few of his pills were

missing.

Later that morning, Trooper Hainey consulted with Richard

Beauchesne, an assistant district attorney. The two reviewed the

evidence obtained during the search; discussed whether that

evidence, together with the information previously known to Hainey,

amounted to probable cause to arrest the appellant; and agreed that

it did. Hainey then made the arrest. The appellant was booked and

released on bail that day. The bail bond indicated that his arrest

had been for aggravated furnishing of a schedule W drug.1 See Me.

Rev. Stat. Ann. tit. 17-A, §§ 1105-C(1)(A)(1), 1106. After some

jockeying, see supra note 1, the assistant attorney general

assigned to the case determined that he would not issue a

complaint.
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Once all charges had been dropped, the appellant filed

suit in a Maine state court against various officers and entities.

He alleged, under 42 U.S.C. § 1983, that the named defendants had

violated his constitutional rights and, in the bargain, had

committed a variety of tortious acts. The defendants removed the

case to the United States District Court for the District of Maine.

See 28 U.S.C. §§ 1331, 1441, 1446.

The sole count relevant to this appeal charges that

Hainey violated the appellant's Fourth Amendment rights by

arresting him without probable cause (for simplicity's sake, we

eschew any reference to other defendants and claims). When Hainey

moved for summary judgment on that count, the district court

referred the matter to a magistrate judge. See 28 U.S.C. §

636(b)(1)(B); Fed. R. Civ. P. 72(b). The magistrate judge

recommended that the count proceed to trial.

Hainey lodged a timely objection to the recommendation.

Upon de novo review, see Fed. R. Civ. P. 72(b), the district court

rejected the magistrate judge's view and found Hainey entitled to

qualified immunity on the ground that an objectively reasonable

police officer could have understood that there was probable cause

to arrest the appellant. Cox v. Me. State Police, 324 F. Supp. 2d

128, 135 (D. Me. 2004). Accordingly, the court granted summary

judgment in Hainey's favor. Id. at 130. This appeal followed.
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II. ANALYSIS

The appellant asseverates that Hainey was not entitled to

qualified immunity and, therefore, that the district court erred in

granting summary judgment. After limning the standard of review

and the doctrinal hereditaments appurtenant to qualified immunity,

we proceed to determine whether Hainey was deserving of sanctuary.

A. Standard of Review.

We afford plenary review to the district court's

disposition of a summary judgment motion. Garside v. Osco Drug,

Inc., 895 F.2d 46, 48 (1st Cir. 1990). We will affirm a grant of

summary judgment as long as the record demonstrates "that there is

no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). In conducting this tamisage, we "utiliz[e] the same

criteria as the trial court," drawing all reasonable inferences

from the record in the nonmovant's favor. Acosta v. Ames Dep't

Stores, Inc., 386 F.3d 5, 8 (1st Cir. 2004). A decision to affirm

a summary judgment order may be grounded on any rationale revealed

by the record, whether or not the lower court employed that

rationale. Houlton Citizens' Coalition v. Town of Houlton, 175

F.3d 178, 184 (1st Cir. 1999).

In this instance, the appellant abjures any claim that a

trialworthy factual dispute exists. He nonetheless insists that

the undisputed facts do not sustain the qualified immunity defense
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and, thus, as a matter of law, do not entitle Hainey to summary

judgment. This posture is important because, in the absence of a

genuine issue of material fact, a defendant's right to qualified

immunity presents a question of law. Rivera v. Murphy, 979 F.2d

259, 261 (1st Cir. 1992).

B. The Legal Landscape.

Before plunging into the qualified immunity inquiry, we

deem it useful to marshal the general principles that steer that

inquiry. The appellant sues under 42 U.S.C. § 1983, which imposes

liability upon an individual who, acting under color of state law,

deprives a person of federally guaranteed rights. Camilo-Robles v.

Hoyos, 151 F.3d 1, 5 (1st Cir. 1998). Withal, a public actor's

liability under section 1983 "is not absolute: the doctrine of

qualified immunity provides a safe harbor for a wide range of

mistaken judgments." Hatch v. Dep't for Children, Youth & Their

Families, 274 F.3d 12, 19 (1st Cir. 2001); see also Anderson v.

Creighton, 483 U.S. 635, 641 (1987). This strain of immunity

aspires to "balance [the] desire to compensate those whose rights

are infringed by state actors with an equally compelling desire to

shield public servants from undue interference with the performance

of their duties and from threats of liability which, though

unfounded, may nevertheless be unbearably disruptive." Buenrostro

v. Collazo, 973 F.2d 39, 42 (1st Cir. 1992). In that way, the

doctrine of qualified immunity protects public officials from civil
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liability "insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known." Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982).

Qualified immunity serves not only as a defense to

liability but also as "an entitlement not to stand trial or face

the other burdens of litigation." Mitchell v. Forsyth, 472 U.S.

511, 526 (1985). Seen in this light, many of the benefits of

qualified immunity are squandered if an action is incorrectly

allowed to proceed to trial. It follows that the applicability vel

non of the qualified immunity doctrine should be determined at the

earliest practicable stage in the case. Hunter v. Bryant, 502 U.S.

224, 227 (1991) (per curiam).

The Supreme Court has set up a sequential analysis for

determining whether a defendant violated clearly established rights

of which a reasonable person would have known. See Saucier v.

Katz, 533 U.S. 194, 201-06 (2001). This court has construed that

framework to consist of three inquiries: "(i) whether the

plaintiff's allegations, if true, establish a constitutional

violation; (ii) whether the constitutional right at issue was

clearly established at the time of the putative violation; and

(iii) whether a reasonable officer, situated similarly to the

defendant, would have understood the challenged act or omission to

contravene the discerned constitutional right." Limone v. Condon,
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372 F.3d 39, 44 (1st Cir. 2004). Under ordinary circumstances, the

development of the doctrine of qualified immunity is best served by

approaching these inquiries in the aforestated sequence. See

Saucier, 533 U.S. at 201; Wilson v. Layne, 526 U.S. 603, 609

(1999). We proceed accordingly.

C. Qualified Immunity.

We have noted that the first variable in our algorithm —

whether the plaintiff has alleged facts that show that the

defendant's conduct violated a constitutional right — should be

treated as a "threshold question." Limone, 372 F.3d at 44. Here,

the appellant premises his section 1983 claim on an allegation that

the facts and circumstances known to Hainey at the time of the

arrest did not give rise to a reasonable likelihood that he (the

appellant) had furnished Roxicodone to his son or any other minor

and, therefore, that the arrest transgressed the Fourth Amendment.

The first prong of the qualified immunity analysis operates at a

high level of generality, and Hainey, based on Cox's allegations,

concedes this prong. See Appellee's Br. at 11-12 ("Cox alleged

conduct that amounts to a violation of a constitutional right — the

Fourth Amendment right to remain free of an arrest unless there is

probable cause. Accordingly, he has satisfied the first part of

this court's qualified immunity inquiry.").

We accept this concession. The Fourth Amendment

undoubtedly recognizes the right to be free from unreasonable
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seizures of the person. See, e.g., Beck v. Ohio, 379 U.S. 89, 91

(1964). Hence, the undisputed facts, construed in the light most

favorable to the appellant, make out a colorable claim of

constitutional dimension. No more is exigible to satisfy the first

part of the tripartite inquiry.

We can be equally quick in executing the second step of

the qualified immunity pavane. As said, Cox alleges that Hainey

arrested him with insufficient information to constitute probable

cause. The right to be free from arrest without constitutionally

adequate probable cause is clearly established. See Wagenmann v.

Adams, 829 F.2d 196, 209 (1st Cir. 1987). That satisfies the

second part of the tripartite inquiry.

Even though the right to be free from an arrest without

probable cause is clearly established, a further hurdle remains.

In Anderson, the Supreme Court clarified the qualified immunity

analysis by explaining that, although it was firmly established

that warrantless searches, not subject to any recognized exception,

violate the Fourth Amendment, more was needed before qualified

immunity could be deemed irrelevant. 483 U.S. at 640-41. The

court below was required to determine whether the defendant had

confronted particular circumstances in which the application of

general principles did not yield a certain answer and, if that were

the case, to determine whether the defendant had responded

reasonably to that idiosyncratic fact pattern. See id. In short,
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to set aside the buckler of qualified immunity "the right the

official is alleged to have violated must have been 'clearly

established' in a more particularized, and hence more relevant,

sense." Id. at 640.

This guidance is pertinent here. In settings that invite

balancing tests, it is often the case that the first two prongs of

the qualified immunity inquiry do not satisfy Anderson's

requirement of heightened specificity. This is particularly true

of alleged false arrests, given the fact-dependent nature of the

probable cause determination. No two probable cause equations are

exactly alike and, therefore, in most of these situations precedent

will take a court only so far. Thus, such cases frequently turn on

the third prong of the qualified immunity inquiry, which channels

the analysis from abstract principles to the specific facts of a

given case. See Limone, 372 F.3d at 48; Hatch, 274 F.3d at 24.

Under that prong, a defendant "is entitled to immunity if a

reasonable officer could have believed that probable cause existed

to arrest." Rivera, 979 F.2d at 263. We turn to that requirement.

Probable cause exists "when the arresting officer, acting

upon apparently trustworthy information, reasonably concludes that

a crime has been (or is about to be) committed and that the

putative arrestee likely is one of the perpetrators." Acosta, 386

F.3d at 9. The test is objective in nature, United States v.

Figueroa, 818 F.2d 1020, 1023 (1st Cir. 1987), and the proof must
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be such as to give rise to a reasonable likelihood that the

putative arrestee committed the suspected crime, Valente v.

Wallace, 332 F.3d 30, 32 (1st Cir. 2003).

Qualified immunity, however, requires a somewhat lesser

showing. For that purpose, the operative inquiry is not whether

the defendant's actions actually abridged some constitutional

right, see Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 228

(1st Cir. 1992), but, rather, whether those actions were obviously

inconsistent with that right, see Camilo-Robles v. Zapata, 175 F.3d

41, 43 (1st Cir. 1999). Thus, in the case of a warrantless arrest,

if the presence of probable cause is arguable or subject to

legitimate question, qualified immunity will attach. See Ricci v.

Urso, 974 F.2d 5, 7 (1st Cir. 1992).

This is as it should be: after all, "the reasonableness

standards underlying the probable cause and qualified immunity

inquiries are not coterminous." Iacobucci v. Boulter, 193 F.3d 14,

23 (1st Cir. 1999). The qualified immunity doctrine is designed to

afford officials an added measure of protection against civil

liability. To achieve that goal, the doctrine eschews a line that

separates the constitutional from the unconstitutional and instead

draws a line that separates unconstitutional but objectively

reasonable acts from obviously unconstitutional acts. See Zapata,

175 F.3d at 43. When properly drawn, that line "provides ample

protection to all but the plainly incompetent or those who
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knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341

(1986). It follows that this suit may go forward only if the

unlawfulness of the arrest would have been apparent to an

objectively reasonable officer standing in Hainey's shoes. See

Anderson, 483 U.S. at 640; Limone, 372 F.3d at 44.

We now consider what Hainey knew and when he knew it.

The point of our inquiry is to determine whether, at the time of

the arrest, an objectively reasonable officer could have concluded

that the salmagundi of facts added up to probable cause.

Hainey had reason to believe, from Joseph Cox's comments,

that the appellant was likely involved in furnishing marijuana to

his son (and possibly to others). The discovery of the triple-beam

scale in the family kitchen tended both to corroborate the

teenager's remarks and to confirm Hainey's understanding. The

trooper knew that the Roxicodone tablets found during the search

had been prescribed for the appellant and were, by his own

admission, in his nearly exclusive control. But Hainey also had

reason to doubt the appellant's claim that he was scrupulous in

guarding the pills; after all, the search disclosed two Roxicodone

bottles (one empty and one full) in the kitchen and two loose

tablets in Joseph Cox's bedroom. Hainey's knowledge that Joseph

Cox had obtained and sold four other Roxicodone tablets to the

informant cut in the same direction.
2Although the appellant told Hainey that he had never shared

the pills with his son or anyone else and that he had mentioned to

a pharmacist that some of his pills might be missing, Hainey had no

obligation to give credence to these self-serving statements. A

reasonable police officer is not required to credit a suspect's

story. See Brady v. Dill, 187 F.3d 104, 112 (1st Cir. 1999); Criss

v. City of Kent, 867 F.2d 259, 263 (6th Cir. 1988); see also

Acosta, 386 F.3d at 11 (noting that police have no responsibility

to investigate potential defenses before making a probable cause

determination).

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Given Joseph's indication that his father was willing to

supply marijuana to minors, the presence of Roxicodone and drug

paraphernalia (the scale) in plain view in the kitchen of the

appellant's home, and Joseph's actual possession of Roxicodone, it

was objectively reasonable for Hainey to infer that the appellant

had furnished those pills to his minor son.2 Though Hainey's

judgment call may walk a thin line between probable cause and mere

suspicion, it cannot be shrugged off as plainly incompetent.

To cinch matters, Hainey took the precaution of reviewing

the known facts with the local prosecutor. This consultation, and

the assistant district attorney's agreement with Hainey's

preliminary assessment that probable cause existed, buttress the

conclusion that Hainey's actions were objectively reasonable.

Although the existence vel non of probable cause is arguable — we

regard that question as very close, but see no need to decide it

definitively — it simply cannot be said, on this record, that

probable cause clearly was lacking at the time of the arrest. See
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Topp v. Wolkowski, 994 F.2d 45, 48 (1st Cir. 1993). Qualified

immunity therefore attaches.

The appellant resists this conclusion on four grounds.

We find none of them persuasive.

The appellant's first line of attack is that the search

yielded no evidence that he had furnished Roxicodone to his minor

son. This ignores the fact that police officers are allowed "to

draw on their own experience and specialized training to make

inferences from and deductions about the cumulative information

available to them." United States v. Arvizu, 534 U.S. 266, 273

(2002). While Hainey lacked direct evidence as to how Joseph Cox

procured the four Roxicodone tablets sold to the informant and the

two discovered in his bedroom, the totality of the circumstances

supported a plausible inference that he obtained them from his

father.

To be sure, alternative inferences could have been

derived from the evidence available to Hainey. But the

availability of alternative inferences does not prevent a finding

of probable cause so long as the inference upon which the officer

relies is reasonable. As we have said, "[t]he probable cause

standard does not require the officers' conclusion to be ironclad,

or even highly probable . . . . [It] need only be reasonable."

United States v. Winchenbach, 197 F.3d 548, 555-56 (1st Cir. 1999).

Consequently, when conflicting inferences are available to resolve
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the issue of probable cause and both of them are plausible, "it

does not matter which inference is correct." Acosta, 386 F.3d at

9.

The appellant's second demurrer takes issue with the use

of marijuana-related evidence to support the conclusion that he was

involved in furnishing Roxicodone to his minor son. The appellant

asserts that consideration of this evidence impermissibly reduced

the probable cause requirement to a standard compatible with arrest

for a lesser violation.

To put this assertion in perspective, it is important to

understand that Hainey has not argued that the evidence at least

supported probable cause to arrest for a marijuana violation. See

Cox, 324 F. Supp. 2d at 131 n.3. While a "related crimes" defense

might have been available to Hainey, see, e.g., Sheehy v. Town of

Plymouth, 191 F.3d 15, 19-20 (1st Cir. 1999) (outlining the

parameters of this defense), the absence of any argument to that

effect makes this a non-issue. See Santiago v. Fenton, 891 F.2d

373, 387 (1st Cir. 1989). Here, then, Hainey must be held to the

requirement of arguable probable cause with respect to the crime

for which he actually arrested the appellant, namely, a violation

of Me. Rev. Stat. Ann. tit. 17-A, §§ 1105-C(1)(A)(1), 1106.

This does not mean, however, that the marijuana-related

evidence has no bearing on the decisional calculus. Joseph's

comments about the drug run and his ability to obtain marijuana
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from his father are part of the totality of the circumstances. So

too is the presence of the scale. These pieces of evidence tend to

make more plausible the trooper's inference about the appellant's

role in the furnishing of Roxicodone. Cf. Brinegar v. United

States, 338 U.S. 160, 175 (1949) (observing that the inferred

probabilities undergirding probable cause "are the factual and

practical considerations of everyday life on which reasonable and

prudent men, not legal technicians, act"). Thus, we reject the

appellant's suggestion that this evidence should have been excluded

from the probable cause determination.

The appellant next argues that the foundation for

Hainey's probable cause determination was inadequate because he had

no evidence that the appellant possessed the mens rea required to

commit the charged crime. This sally takes us to the language of

the relevant statutes. The Maine Criminal Code provides in

pertinent part that "a person is guilty of unlawful furnishing of

a scheduled drug if the person intentionally or knowingly furnishes

what the person knows or believes to be a scheduled drug, which is

in fact a scheduled drug." Me. Rev. Stat. Ann. tit. 17-A, §

1106(1-A). A companion statute renders that crime aggravated if

"[t]he person furnishes a scheduled drug to a child who is in fact

less than 18 years of age and the drug is . . . [a] schedule W
3In this case, no one disputes that Roxicodone is and was a

schedule W drug under Maine law.

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drug." Id. § 1105-C(1)(A).3 The Code sheds light on the meaning

of the mens rea components needed for commission of these crimes.

"A person acts intentionally with respect to a result of his

conduct when it is his conscious object to cause such a result."

Id. § 35(1)(A). By like token, "[a] person acts knowingly with

respect to a result of his conduct when he is aware that it is

practically certain that his conduct will cause such a result."

Id. § 35(2)(A).

Given these guideposts and the information available to

Hainey at the time of the arrest, we do not believe it should have

been apparent to him that the mens rea component was altogether

lacking. On this record, an objectively reasonable officer could

have believed that there was probable cause to support an arrest

for aggravated furnishing based on circumstantial evidence that the

appellant's actions were intentional (because Joseph's statement

about his ability to procure marijuana from his father, made in the

course of a Roxicodone transaction, tended to suggest that the

appellant was consciously abetting his son's drug-trafficking

activities). Although this inference is somewhat attenuated, the

practical restraints on police in the field are greater with

respect to ascertaining intent and, therefore, the latitude

accorded to officers considering the probable cause issue in the
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context of mens rea crimes must be correspondingly great. See Paff

v. Kaltenbach, 204 F.3d 425, 437 (3d Cir. 2000) (emphasizing that

police must make judgment calls in determining a suspect's state of

mind).

That brings us to the appellant's final objection to the

lower court's qualified immunity ruling. This objection calumnizes

the court's consideration of Hainey's consultation with the

assistant district attorney (who, upon reviewing the evidence that

Hainey presented to him, opined that it satisfied the probable

cause requirement). In mounting this objection, the appellant

submits that a police officer should not be able to insulate

himself from liability for an erroneous determination simply

because he obtained a prosecutor's blessing to arrest upon evidence

that did not establish probable cause.

We agree with the appellant's premise that a wave of the

prosecutor's wand cannot magically transform an unreasonable

probable cause determination into a reasonable one. That is not to

say, however, that a reviewing court must throw out the baby with

the bath water. There is a middle ground: the fact of the

consultation and the purport of the advice obtained should be

factored into the totality of the circumstances and considered in

determining the officer's entitlement to qualified immunity.

Whether advice obtained from a prosecutor prior to making

an arrest fits into the totality of circumstances that
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appropriately inform the qualified immunity determination is a

question of first impression in this circuit. In Suboh v. Dist.

Atty's Office of Suffolk Dist., 298 F.3d 81 (1st Cir. 2002), we

noted the question but had no occasion to answer it. See id. at

97. In dictum, we implied that if an officer seeks counsel from a

prosecutor anent the legality of an intended action and furnishes

the latter the known information material to that decision, the

officer's reliance on emergent advice might be relevant, for

qualified immunity purposes, to the reasonableness of his later

conduct. See id.

Other courts, however, have spoken authoritatively to the

issue. The Seventh Circuit recently recognized that pre-arrest

consultation with a prosecutor may lend reasonableness to an

officer's conclusion that probable cause exists and, thus, may help

to establish qualified immunity. Kijonka v. Seitzinger, 363 F.3d

645, 648 (7th Cir. 2004). Similarly, the Eighth Circuit has held

that such advice can assist in "show[ing] the reasonableness of the

action taken" and, thus, assist in determining the existence vel

non of qualified immunity. E-Z Mart Stores, Inc. v. Kirksey, 885

F.2d 476, 478 (8th Cir. 1989). The Ninth and Fourth Circuits also

have recognized that a pre-seizure consultation with a prosecutor

is a factor to be considered in determining an officer's

entitlement to qualified immunity. See Dixon v. Wallowa County,

336 F.3d 1013, 1019 (9th Cir. 2003); Wadkins v. Arnold, 214 F.3d
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535, 542 (4th Cir. 2000). The Tenth Circuit has substantially

adopted this reasoning, acknowledging the relevance of a

prosecutor's advice for qualified immunity purposes, at least where

the officer's duty is unclear. See Lavicky v. Burnett, 758 F.2d

468, 476 (10th Cir. 1985).

We agree with our sister circuits and with the

implication of the Suboh dictum that there is some room in the

qualified immunity calculus for considering both the fact of a prearrest consultation and the purport of the advice received. As a

matter of practice, the incorporation of these factors into the

totality of the circumstances is consistent with an inquiry into

the objective legal reasonableness of an officer's belief that

probable cause supported an arrest. It stands to reason that if an

officer makes a full presentation of the known facts to a competent

prosecutor and receives a green light, the officer would have

stronger reason to believe that probable cause existed. And as a

matter of policy, it makes eminently good sense, when time and

circumstances permit, to encourage officers to obtain an informed

opinion before charging ahead and making an arrest in uncertain

circumstances. See Kijonka, 363 F.3d at 648. Although we

acknowledge the possibility of collusion between police and
4Of course, prosecutors work hand in glove with law

enforcement officers, so a prosecutor's advice, under the best of

circumstances, cannot carry the same presumption of reliability

that accompanies the detached scrutiny of a neutral magistrate.

See United States v. Leon, 468 U.S. 897, 913-14 (1984). But that

lessened deference is no reason to treat a prosecutor's counsel as

worthless. Prosecutors are public officials and officers of the

court. Moreover, when giving legal advice to the police, they have

only qualified immunity. Burns v. Reed, 500 U.S. 478, 496 (1991).

"[T]he absence of absolute immunity for the act of giving legal

advice may cause prosecutors to consider their advice more

carefully . . . ." Id. at 495. In view of these realities, we

refuse to endorse a rule that a prosecutor's stake in law

enforcement renders his or her advice inherently unreliable.

5This inquiry remains focused on objective reasonableness and

should not be transformed into an investigation of the officer's

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prosecutors, we do not believe that possibility warrants a general

rule foreclosing reliance on a prosecutor's advice.4

We caution, however, that the mere fact that an officer

secures a favorable pre-arrest opinion from a friendly prosecutor

does not automatically guarantee that qualified immunity will

follow. Rather, that consultation comprises only one factor, among

many, that enters into the totality of the circumstances relevant

to the qualified immunity analysis. See Wadkins, 214 F.3d at 542.

The primary focus continues to be the evidence about the suspect

and the suspected crime that is within the officer's ken.

In considering the relevance of an officer's pre-arrest

consultation with a prosecutor, a reviewing court must determine

whether the officer's reliance on the prosecutor's advice was

objectively reasonable.5 Reliance would not satisfy this standard
subjective good faith. See Crawford-El v. Britton, 523 U.S. 574,

587-88 (1998); Tremblay v. McClellan, 350 F.3d 195, 199 (1st Cir.

2003). Whether a pre-arrest consultation actually boosted the

officer's confidence in his or her probable cause determination is

beside the point.

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if an objectively reasonable officer would have cause to believe

that the prosecutor's advice was flawed, off point, or otherwise

untrustworthy. Cf. Groh v. Ramirez, 124 S. Ct. 1284, 1293-94

(2004) (holding that qualified immunity could not shield an officer

from liability for actions predicated upon an obviously deficient

arrest warrant). Law enforcement officers have an independent duty

to exercise their professional judgment and can be brought to book

for objectively unreasonable mistakes regardless of whether another

government official (say, a prosecutor or a magistrate) happens to

compound the error. See Malley, 475 U.S. at 340-41.

The officer's own role is also pertinent. If he

knowingly withholds material facts from the prosecutor, his

reliance on the latter's opinion would not be reasonable. Dixon,

336 F.3d at 1019; Hollingsworth v. Hill, 110 F.3d 733, 741 (10th

Cir. 1997).

In this case, the advice that Hainey received from the

assistant district attorney was of the kind that an objectively

reasonable officer would be free to consider reliable. The

undisputed facts indicate that the two reviewed the available

evidence fully and had a frank discussion about it. This

discussion culminated in the prosecutor's statement that he
-24-

believed Hainey had probable cause to arrest the appellant. And,

finally, there is nothing to suggest that the prosecutor was

operating in bad faith. We conclude, therefore, that an

objectively reasonable officer would have taken the prosecutor's

opinion into account in deciding whether to make the arrest. Thus,

the district court appropriately considered that opinion in

assessing the objective reasonableness of Hainey's actions and,

ultimately, in granting him qualified immunity.

III. CONCLUSION

We need go no further. We conclude that an objectively

reasonable officer, standing in Hainey's shoes, could have believed

that probable cause existed to arrest the appellant for the crime

of aggravated furnishing of a schedule W drug. Accordingly, the

district court did not err in ruling that Hainey was entitled to

qualified immunity with respect to the appellant's claim under

section 1983.

Affirmed.