1

 The Honorable Robert T. Dawson, United States District Judge for the

Western District of Arkansas, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

____________

No. 00-3945

____________

Jerry Turpin and Bonnie Turpin, *

 *

Appellants, *

 * Appeal from the United States

v. * District Court for the

 * District of Nebraska

The County of Rock, Nebraska; *

Galen Svoboda, in his official *

capacity; and Jim Anderson, *

in his official capacity, *

 *

Appellees. *

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Submitted: June 14, 2001

 Filed: August 21, 2001 

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Before McMILLIAN and RICHARD S. ARNOLD, Circuit Judges, and DAWSON,1

District Judge.

DAWSON, District Judge.

Jerry and Bonnie Turpin instituted a civil rights action against the County of

Rock, Nebraska, and two officers, alleging that the officers made false representations
2

 The Honorable Richard G. Kopf, United States District Judge for the

District of Nebraska.

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in support of a search warrant used to search the home of Appellants. In a state

criminal prosecution that preceded this case, motions to suppress the evidence

obtained had been granted based upon a finding by the state court that the issuance

of the search warrant was defective. The district court2

 granted the defendants

summary judgment, concluding that there was probable cause to arrest the Appellants,

that the officers were protected by qualified immunity, and that the actions of the

officers could not be imputed to the county.

On appeal, Appellants raise for the first time the argument that the officers

should be precluded from contending that they did not make material

misrepresentations in the affidavit for the search warrant, as the State had argued and

lost that very issue at the hearing on the motion to suppress in the state criminal case.

Appellants further contend that the district court (1) erred in concluding that there

were no material facts in dispute when there was evidence of reckless omissions in

the affidavit for the search warrant, (2) erred in concluding that the officers’ conduct

was objectively reasonable, and (3) erred in concluding that the county was not liable.

For reasons stated herein, we AFFIRM the decision of the district court.

I. Background.

On or about May 5, 1999, Rock County investigator Galen Svoboda prepared

an affidavit for the issuance of a warrant to search the Appellants' home. In this

affidavit, Officer Svoboda recited that he and Deputy Anderson had been advised by

Ken Turpin, a cousin of Appellant Jerry Turpin, that he had discovered what he

believed to be marijuana plants growing on his property and that he believed his

brother, James Turpin, was responsible for growing those plants. Ken Turpin also

stated that he had witnessed his brother running his hunting dogs in that area and that

he subsequently saw movements of small flashlights around the marijuana plants at
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night. In response to a telephone call from the informant Ken Turpin advising of the

flashlight incident, Deputy Anderson proceeded to the area and subsequently gave

chase to a vehicle that was departing. The vehicle was stopped and the driver was

identified as James Turpin and the passenger as the Appellant Jerry Turpin.

According to Deputy Anderson, both were dressed in camouflage clothing that was

muddy and two flashlights were located on the front seat. Deputy Anderson released

both men; however, some two or three days later, he returned with Officer Svoboda

to the area where the informant Ken Turpin reportedly saw the marijuana plants. At

this location, they observed approximately twenty holes where they believed

marijuana plants had been removed. These holes contained potting soil and what

appeared to be styrofoam particles.

Based upon this information, a search warrant was issued and marijuana plants

were found in the basement of Appellants’ home. A criminal action was then brought

against Appellants in state court. The charges were dismissed, however, after the

same judge who issued the search warrant granted Appellants' motion to suppress.

The judge found that the affidavit failed to establish the reliability of the informant

because it failed to disclose two particular items of information known by Deputy

Anderson: (1) the sheriff’s department had taken the informant into protective

custody some ten to twelve years earlier when he shot stuffed ducks off a wall inside

his residence; and (2) prior to 1987, the informant held a grudge against his brother

over a land dispute. Following the dismissal of the state court charges, Appellants

brought suit against both officers and the County of Rock seeking compensatory and

punitive damages for emotional distress, loss of enjoyment of life, humiliation,

embarrassment, and loss of reputation in the community.

II. Discussion.

We first address Appellants' argument that the state-court's ruling on the

motion to suppress precludes the officers from arguing that they did not make

material misrepresentations. Appellants waived this argument by failing to raise it
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in the district court, see Medtronic, Inc. v. Gibbons, 684 F.2d 565, 569 (8th Cir.

1982), and, in any event, it is without merit. Under Nebraska law, collateral estoppel

bars re-litigation of issues decided in a prior action if the party against whom the rule

is applied was either a party or in privity with a party to the prior action and where

there was an opportunity to fully and fairly litigate the issue in the prior action. See

Woodward v. Andersen, 627 N.W.2d 742, 749 (Neb. 2001). Collateral estoppel

cannot be used against the officers in our case, as the officers were neither parties nor

in privity with the State in the criminal action and did not have a full and fair

opportunity to litigate the issues in the criminal action . See Duncan v. Clements, 744

F.2d 48, 51-52 (8th Cir. 1984) (state court's finding that arrest and search were

unconstitutional could not be used offensively against arresting officer in subsequent

civil rights suit because interests of State in criminal proceeding were not identical

to personal interests of individual officer and, thus, officer was not in privity with

State, and officer did not have full and fair opportunity to litigate at suppression

hearing as he had no control over State's presentation of its case ).

We next address the district court's grant of summary judgment to the officers

based upon qualified-immunity. We review this ruling de novo. See Tlamka v.

Serrell, 244 F.3d 628, 632 (8th Cir. 2001). Summary judgment is proper when there

is no genuine issue of material fact and the moving party is entitled to judgment as

a matter of law. Fed. R. Civ. P. 56(c). In deciding whether the officers are entitled

to summary judgment, we view the summary judgment record in a light most

favorable to the Appellants, affording them the benefit of all reasonable inferences.

See Tlamka, 244 F.3d at 632.

Qualified immunity shields governmental officials from personal liability if

their actions, even if unlawful, were "nevertheless objectively reasonable in light of

the clearly established law at the time of the events in question." Anderson v.

Creighton, 483 U.S. 635, 638-39 (1987). The inquiry in determining whether the

officers are entitled to qualified immunity focuses on whether the Appellants have

asserted a violation of a clearly-established constitutional right and, if so, whether

there are genuine issues of material fact as to whether a reasonable official would 
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have known that the alleged action indeed violated that right. See Hunter v.

Namanny, 219 F.3d 825, 829 (8th Cir. 2000). 

The law was clearly established at the time in question in this case that an

affidavit for a search warrant containing materially false statements or omissions

knowingly or recklessly made in conscious disregard for the truth violates the Fourth

Amendment. See Franks v. Delaware, 438 U.S. 154, 171-72 (1978). However, the

officers would be entitled to qualified immunity if the affidavit, when reconstructed

to include the omitted information, would still provide probable cause. See id. 

We first address whether the officers knowingly or recklessly omitted facts in

conscious disregard for the truth. There is no evidence indicating that Deputy

Anderson revealed the information about the wall-shooting incident or the land

dispute to Officer Svoboda. Accordingly, Svoboda cannot be said to have knowingly

or recklessly disregarded the truth when he prepared the affidavit. With regard to

Deputy Anderson, there are some instances when recklessness may be inferred from

the fact of omission of information. Such an inference, however, is warranted only

when the material omitted would have been "clearly critical" to the finding of

probable cause. See United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986).

While shooting ducks off a wall is not the usual way of duck hunting, we agree with

the district court that there was no evidence that Anderson had reason to believe from

this incident that the informant was mentally impaired, as it was an isolated incident

that occurred some ten to twelve years earlier. As to the land dispute between the

informant and his brother, Anderson’s uncontroverted testimony indicated that he had

not heard of problems between the brothers since 1987 and had no reason to believe

any animosity still existed. We conclude that the information concerning the

shooting incident and the land dispute would not have been "clearly critical" to the

finding of probable cause and that the omission of this information did not constitute

recklessness.

Further, even when reconstructed to include the omitted information, the

affidavit would still provide probable cause because the facts related by the informant

were at least partially corroborated by Anderson. In response to the telephone call
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from the informant who reported seeing someone with flashlights proceeding toward

an area where the informant had earlier discovered marijuana plants, Deputy

Anderson proceeded to the area and subsequently encountered James and Jerry

Turpin. According to Anderson, both men were dressed in camouflage clothing, both

were very muddy, and two flashlights were on the front seat. Their only explanation

was that they were out "looking at the clouds because it was raining and lightning."

Deputy Anderson and Officer Svoboda subsequently visited the area where the

informant reportedly saw the marijuana plants and observed numerous small holes

containing potting soil and what appeared to be styrofoam particles, which was

consistent with a marijuana planting operation. Where the facts stated by an

informant are at least partially corroborated, the credibility and reliability of the

informant are not crucial to the finding of probable cause. See United States v.

Gibson, 123 F.3d 1121, 1124 (8th Cir. 1997).

Having concluded that the district court properly granted Officer Svoboda and

Deputy Anderson summary judgment on qualified-immunity grounds, we likewise

conclude that the county was entitled to summary judgment. See Abbott v. City of

Crocker, 30 F.3d 994, 998 (8th Cir. 1994) (municipality cannot be liable unless

officer is found liable on underlying substantive claim). 

III. Conclusion.

Based on the foregoing, we hereby affirm the district court's rulings in their

entirety.

A true copy.

Attest:

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