1

United States Court of Appeals,

Fifth Circuit.

No. 96-40151.

Peggy Nell HART, Plaintiff-Appellee,

v.

Harold B. O'BRIEN, DPS Officer, et al., Defendants,

Harold B. O'Brien, DPS Officer; Frank Montana, DPS Officer;

C.T. Myrick, Law Enforcement Officer; Carl Motley; Jeff Starnes,

Assistant Lamar County Attorney, Defendants-Appellants.

Nov. 6, 1997.

Appeals from the United States District Court for the Eastern

District of Texas.

Before BARKSDALE, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Various state and county officials searched the home of Peggy

Nell Hart ("Hart"), arrested her, and charged her with possession

of marijuana. She remained in jail more than two weeks. After the

state dismissed the charges, Hart filed suit pursuant to 42 U.S.C.

§ 1983 and state law against Red River County, Texas ("the county")

and a number of the officials involved in the case. These

officials include Jeff Starnes, an assistant county attorney in

Lamar County; Harold O'Brien and Frank Montana, both Texas

Department of Public Safety ("DPS") narcotics officers; and Carl

Motley and Tommy Myrick, who were at the time Red River County

sheriff's deputies (collectively, "the officials"). The county and

the officials then moved for summary judgment, with the county

arguing that it could not be vicariously liable for the actions of

its officials and the officials variously asserting absolute,
 

1Our recitation of facts accepts Hart's evidence and

reasonable inferences from it as true and should not be construed

as expressing any view as to the weight or credibility of her

evidence. Salas v. Carpenter, 980 F.2d 299, 304 n. 3 (5th

Cir.1992). 

2

qualified, and official immunity. The district court granted the

county summary judgment and Myrick summary judgment in part, but

denied the rest of the motions. The officials mount an

interlocutory appeal of the portion of the district court's

judgment dealing with immunity. Finding error as a matter of law,

we reverse the district court's judgment on qualified immunity and

official immunity; we render judgment in favor of all the

officials on the federal claims and in favor of O'Brien and Montana

on the state law claims.

I

In reviewing a district court's denial of a motion for summary

judgment on the grounds of immunity, we must view the facts in the

light most favorable to the nonmovant. Blackwell v. Barton, 34

F.3d 298, 301 (5th Cir.1994).1

Hart and David Conine lived near each other in a rural area of

Red River County. Conine resided in a trailer and Hart in a white

house with black trim and shutters; their homes were separated by

a pasture and partly surrounded by dense woods. However, the

summary judgment evidence also reveals that Hart, at times, spent

the night at Conine's trailer.

On August 11, 1992, the state and county conducted an aerial

survey of the property surrounding the trailer and the white house

with black trim, and they discovered several marijuana patches.
3

O'Brien was assigned to investigate. O'Brien believed that the

marijuana was growing on land owned or controlled by Conine, and

determined that Conine had been arrested in 1985 for growing

marijuana and operating a methamphetamine laboratory on the same

property. O'Brien, along with Montana and nine police officers,

conducted surveillance on the Conine residence and the surrounding

property for about two weeks. O'Brien and Montana jointly

supervised the operation. The agents ultimately determined that

six marijuana patches existed: three were in a tree line across a

pasture from Hart's home (one being directly across the pasture

from the home), one was near a trash dump southwest of the Hart

residence, one was northeast of the trash dump, and one was amidst

some trees directly behind the Hart home.

The officers saw Hart engage in certain activities (or saw

signs of such activities) that led them to believe she was residing

in Conine's trailer. Hart does not contest that the officers made

the following observations:

! On August 12, Hart stayed overnight at Conine's residence.

! On August 13, Hart and Conine left the property. Upon Hart

and Conine's return the next day, the officers observed them

unloading clothes from Conine's vehicle and taking them into

the trailer.

! Hart spent that night in the trailer.

! Hart stayed at least two other nights in the trailer during

the two-week surveillance period.

! Hart went out to eat occasionally with Conine.

! Hart would feed the animals in and around Conine's barn.

! The officers observed Jerry Benton, a known marijuana

grower, visit the Conine residence. Hart was at the residence
 

2The officers also assert in affidavits and deposition

testimony that they observed Hart and Conine embrace, Conine

urinate in front of Hart, Hart make breakfast for Conine and

Benton, Hart come out on the porch of the trailer in the morning

wearing a robe, and Conine make "heat runs" (i.e., drive his car in

a certain way to determine if he was being followed) with Hart in

the car. Hart disputes these alleged observations. Because we are

to view the facts in the light most favorable to Hart, Blackwell,

34 F.3d at 301, we will not consider disputed facts in determining

whether the officers had, or reasonably believed that they had,

probable cause to search Hart's home or to arrest her. 

4

during at least some of Benton's visit.

! Conine and Hart drove in the direction of the trash dump,

which is located near one of the marijuana patches. Hart

exited the truck to open the gate to the dump and stayed there

until Conine finished dumping some trash.2

Around August 24, O'Brien and Starnes drafted a search and

arrest warrant and two supporting affidavits, both signed by

O'Brien. The affidavits contained information on the activities

the officers saw. The warrant, as signed by the state district

judge, commands the appropriate law enforcement officers "to enter

the suspected place and premises described in [the attached]

Affidavit and to there search for the property described in said

Affidavit and bring it before me and persons described in said

Affidavit and arrest them and bring them before me." In the first

affidavit, the "property to be searched" included Conine's trailer

and barn, a vacant white-frame house, "a single-family, white frame

residence with black trim and shutters," various outbuildings, and

a number of cars (hereinafter "the property"). Hart lived in the

white house with black trim and shutters, although the affidavit

did not say so. The affidavit did refer to two of the cars "on the

property" as being registered to Hart. The affidavit also noted
 

3For simplicity, we will refer to the two affidavits as "the

affidavit." 

5

that the property was controlled by Conine and "[a]n unknown white

female, approx. 5'6" tall with brown hair and medium build." The

affidavit "charges and accuses" Conine and the unknown white female

of possessing marijuana.

The second affidavit contained the facts allegedly supporting

probable cause. This affidavit repeats the information about the

white house with black trim and shutters and the two cars

registered to Hart. The only other reference to Hart is the

following:

During the almost continuous surveillance on Conine's

property, affiant observed Conine enter and leave the property

on numerous occasions. On several of those occasions, Conine

and/or an unknown, white female with light brown hair who is

residing at the mobile home, has stopped by the white frame

house with black trim and shutters, entered the residence and

returned a short time later. The unknown, white female has

been seen by Affiant driving a blue Buick, registered to a

Peggy Hart. Peggy Hart is married to Stanley Hart, who

according to [Drug Task Force ("DTF") ] files, is a known

marihuana cultivator in Red River County, Texas.

This paragraph contains at least two pieces of inaccurate

information. First, Hart did not reside at the mobile home, though

she did stay over on several occasions. Rather, she lived in the

adjacent white frame house with black trim. Second, Hart was not

married to Stanley Hart. Instead, a different Peggy Hart was

married to Stanley Hart. The officers claim that the first piece of

information came from their surveillance of the property. Starnes

admits that he helped prepare the affidavit3 and that he gave the

second piece of information to O'Brien for inclusion in the
 

4Several weeks after Conine's and Hart's arrest, a survey of

the land revealed that the marijuana plants had not been growing on

land owned by Conine (or Hart). Apparently, "Conine was taking

advantage of the isolated nature of the area to grow marihuana on

neighboring tracts of land." United States v. Conine, 33 F.3d 467,

468 (5th Cir.1994). 

6

affidavit.

O'Brien swore and subscribed to the affidavit. Based on this

affidavit, a state district judge signed the search and arrest

warrant on August 24. The next day, a team of law enforcement

officers (Motley and Myrick among them), led by O'Brien and

Montana, converged on the property to execute the search and arrest

warrant. Starnes accompanied them. Starnes concedes that, after

he saw Hart, he realized that she was not the Peggy Hart married to

Stanley Hart, and that the affidavit was partially based on

erroneous information. However, he did not attempt to halt the

execution of the warrant.

There was some debate about whether Hart, after being

arrested, should be left behind to care for Conine's animals.

Nonetheless, O'Brien and Montana executed the warrant; they

instructed Myrick to arrest Hart and Motley to take her to jail.

The officers also arrested Conine and took him to jail. During the

search of the property, the officers seized a number of items,

including 1,132 live marijuana plants.4 While executing the search

warrant, the officers found drugs and drug paraphernalia in

Conine's trailer, including two baggies of marijuana, two bongs,

the butt of a marijuana cigarette in an ashtray, firearms,

ammunition, and $19,000 in cash. In addition, officers found
7

cocaine in Conine's barn and a bag of marijuana seeds inside a shed

adjacent to his property. The only objects seized that have been

identified specifically as Hart's were some personal papers found

in a storage shed on Conine's property. Conine subsequently pled

guilty to a drug charge and is now incarcerated. See generally

United States v. Conine, 33 F.3d 467 (5th Cir.1994).

After Motley took Hart to jail, he filed a criminal complaint

against her, charging her with possession of marijuana with intent

to deliver and writing the words "federal hold" on the document.

According to Motley's deposition testimony, Starnes, O'Brien,

Montana, and Myrick had previously discussed putting Hart on

federal hold, and Motley did so, pursuant to O'Brien's

instructions. Hart was given a hearing before a state magistrate

judge on the charge in the complaint. At the hearing, the

magistrate was supposed to determine, among other things, whether

probable cause existed for further detention and the amount of

bail. The magistrate denied bail. On the charge sheet from the

hearing (which is signed by the magistrate), the phrase " *Bail is

denied" is circled and next to it someone has written "Federal

Hold."

However, no federal official had lodged a federal detainer

against Hart. Motley testified in his deposition that he thought

the "federal hold" was intended to detain Hart long enough to allow

federal Drug Enforcement Agency ("DEA") officers to speak to her.

Apparently, the officers wanted to give federal authorities the

opportunity to intervene in the case before Hart could post bail.
 

5Hart did not sue Myrick or the county for malicious

prosecution. 

8

The next day, O'Brien filed a superseding complaint against

Hart, charging her with possession of marijuana in an amount

between five and fifty pounds. The magistrate judge conducted a

hearing on the new charge, this time setting bail at $50,000. On

September 11, seventeen days after Hart's arrest, someone posted

bail for her and she was released on bond. Prosecutors

subsequently dismissed the charges against Hart because of

insufficient evidence.

Hart then sued Starnes, O'Brien, Montana, Motley, Myrick, and

Red River County under 42 U.S.C. § 1983, asserting that her arrest

and subsequent incarceration had violated her rights under the

Fourth and Fourteenth Amendments and that the search of her

property violated her rights under the Fourth Amendment. She also

alleged pendent state claims against these defendants for false

imprisonment, malicious prosecution,5 and intentional infliction of

emotional distress. Hart alleges that Starnes and O'Brien inserted

false statements into the affidavit either intentionally or with

reckless disregard for the truth. Hart's theory is that the

officials knew she was not involved in Conine's marijuana

cultivation, but, in order to pressure her into providing evidence

against him, they arrested her, charged her with a drug offense,

detained her without bail for a day, and then did nothing to try to

free her during the two weeks or so she remained jailed.

At this point, it is worth summarizing the officials'
9

involvement in this matter. O'Brien and Montana jointly supervised

the surveillance and search of the property. O'Brien requested the

warrant. O'Brien and Montana instructed the officers to execute

the warrant by arresting Hart and taking her to jail. Myrick did

not participate in the surveillance, but he was involved in the

search of the property and Hart's arrest. After the search, Motley

took Hart to jail and signed the initial criminal complaint against

her, writing "federal hold" on it. O'Brien signed a new criminal

complaint against Hart the next day. Starnes advised the officers

during the investigation, assisted O'Brien in the preparation of

the warrant application, and was present during the execution of

the warrant.

Starnes, Motley, Myrick, and Red River County moved for

summary judgment on various grounds. In particular, Starnes

asserted absolute and qualified immunity against the federal claims

and Motley and Myrick claimed qualified immunity against the

federal claims. Also, O'Brien and Montana moved for summary

judgment, professing that they were qualifiedly immune against the

federal claims and officially immune against the state ones. After

Hart filed her response to the summary judgment motions, O'Brien

and Montana filed an "objection" to certain evidence that Hart

submitted in response to their particular motion.

The district court then (1) granted the county summary

judgment; (2) granted Myrick summary judgment based on qualified

immunity on the federal claims and as a matter of law on the

intentional infliction of emotional distress claim; (3) denied the
10

remaining motions for summary judgment; and (4) dismissed the

objection to certain of Hart's evidence as moot.

In this interlocutory appeal, all the officials assert that

the district court erred in denying their motions for summary

judgment on the grounds of immunity; Starnes asserts that he has

absolute or qualified immunity, and O'Brien, Motley, Montana, and

Myrick aver that they have qualified and official immunity. In

addition, O'Brien and Montana argue that the district court erred

in refusing to strike certain evidence Hart submitted in opposition

to their summary judgment motion.

Hart disputes these contentions. She also maintains that we

do not have jurisdiction over the interlocutory appeal.

II

We review de novo the denial of a motion for summary judgment

on the grounds of qualified or absolute immunity. Nerren v.

Livingston Police Dep't, 86 F.3d 469, 470 & n. 1 (5th Cir.1996).

In doing so, we employ the same criteria as the district court, and

construe all facts and inferences in the light most favorable to

the nonmoving party. Id.; LeJeune v. Shell Oil Co., 950 F.2d 267,

268 (5th Cir.1992). Summary judgment is appropriate where the

moving party establishes that "there is no genuine issue of

material fact and that [it] is entitled to a judgment as a matter

of law." Fed.R.Civ.P. 56(c). The moving party must show that, if

the evidentiary material of record were reduced to admissible

evidence in court, it would be insufficient to permit the nonmoving

party to carry its burden of proof. Celotex v. Catrett, 477 U.S.
11

317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).

 Once the moving party has carried its burden under Rule 56,

"its opponent must do more than simply show that there is some

metaphysical doubt as to the material facts." Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106

S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted). The

opposing party must set forth specific facts showing a genuine

issue for trial and may not rest upon the mere allegations or

denials of its pleadings. Fed.R.Civ.P. 56(e); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d

202 (1986).

III

We must first examine the basis of our jurisdiction. Mosley

v. Cozby, 813 F.2d 659, 660 (5th Cir.1987). A court of appeals has

jurisdiction of appeals from all final district court decisions.

28 U.S.C. § 1291. Under the collateral order doctrine, however,

interlocutory appeals from district court orders denying summary

judgment on the basis of absolute or qualified immunity may be

immediately appealed, assuming these orders are based on an issue

of law. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806,

2816, 86 L.Ed.2d 411 (1985).

Recently, the Supreme Court clarified the scope of Mitchell.

In Johnson v. Jones, 515 U.S. 304, 312, 115 S.Ct. 2151, 2156, 132

L.Ed.2d 238 (1995), the Court distinguished between orders that

resolve legal wrangles and those that determine "evidence

sufficiency" disputes. If, for example, the district court denies
 

6In Johnson, the defendant officers claimed that they did not

beat the plaintiff and were not present while others beat him. The

district court determined that a triable issue existed on that

point, and denied summary judgment in favor of the officers. The

Supreme Court ruled that this denial could not be appealed until

final judgment.

In Behrens, the defendant was a supervisory agent of the

12

summary judgment on the basis that, given the set of undisputed

facts, the defendant official's conduct was not objectively

reasonable in light of clearly established law, the official may

seek immediate appeal. If the district court denies summary

judgment on the grounds that material facts exist which a party may

or may not be able to prove at trial, the official must await final

judgment before appealing. Id.

In Behrens v. Pelletier, --- U.S. ----, ----, 116 S.Ct. 834,

842, 133 L.Ed.2d 773 (1996), the Supreme Court interpreted its

holding in Johnson. It emphasized that Johnson did not stand for

the proposition that a party must delay an appeal until final

judgment if the district court based summary judgment on an

evidence sufficiency determination, i.e., if the court determined

that "material issues of fact remained." If that were true, then

a party could never appeal a denial of summary judgment. Rather,

the Behrens court ruled, Johnson merely held that:

determinations of evidentiary sufficiency at summary judgment

are not immediately appealable merely because they happen to

arise in a qualified-immunity case; if what is at issue in

the sufficiency determination is nothing more than whether the

evidence could support a finding that particular conduct

occurred, the question decided is not truly "separable" from

the plaintiff's claim, and hence there is no "final decision"

under ... Mitchell.

Id. --- U.S. at ----, 116 S.Ct. at 842.6
Federal Home Loan Bank Board and responsible for monitoring the

operations of a thrift. The defendant wrote the thrift, suggesting

that it replace its managing officer, the plaintiff in the action.

The thrift then asked the plaintiff to resign; when he refused, it

fired him. The defendant did not dispute his actions. Rather, he

moved for summary judgment, contending that he had not violated any

of the plaintiff's clearly established rights regarding his

employment. The district court denied the motion. The Supreme

Court held that this denial could be immediately appealed. 

13

In the instant case, the district court did not deny summary

judgment because there is a genuine dispute of material fact that

the officials are responsible for searching Hart's home, arresting

her, and not taking any action to end her detention. The parties

did not disagree over whether the officials had engaged in such

conduct. Rather, the court denied summary judgment because (1)

"disputed issues of material fact" existed over whether the

officials violated Hart's clearly established constitutional rights

of which a reasonable person would have known under Franks v.

Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978),

Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527

(1983), and similar cases and (2) the underlying facts are too

unsettled to determine if the officials acted with objective

reasonableness. In short, the district court determined that there

were sufficient uncontested facts to establish that the officers

engaged in the conduct in question, but that there were

insufficient uncontested facts to decide whether the officials

enjoyed immunity as a matter of law. Hence, the officials may

argue on interlocutory appeal (as they do here) that, contrary to

the district court's judgment, enough uncontested facts exist to

determine that they are immune as a matter of law and that, on the
 

7Rule 602 provides that "[a] witness may not testify to a

matter unless evidence is introduced sufficient to support a

finding that the witness has personal knowledge of the matter."

Rule 802 forbids inadmissible hearsay. Rule 56(e) requires

affidavits to be "made on personal knowledge [and to] set forth

such facts as would be admissible in evidence...." 

14

basis of these facts, they are immune. Behrens, --- U.S. at ----,

116 S.Ct. at 842; Coleman v. Houston Indep. Sch. Dist., 113 F.3d

528, 531 (5th Cir.1997).

Accordingly, under Mitchell, Johnson, and Behrens, we have

jurisdiction over the officials' interlocutory appeal of the

district court's denial of summary judgment on the grounds of

immunity for Hart's section 1983 claims. This means that we also

have jurisdiction over the officials' appeal of denial of summary

judgment on the grounds of immunity for Hart's state claims. Cantu

v. Rocha, 77 F.3d 795, 803-04 (5th Cir.1996).

IV

O'Brien and Montana filed an "objection" to certain evidence

that Hart submitted in response to their summary judgment motion.

Specifically, they allege (1) that statements made in connection

with the "federal hold" are inadmissible under Rules 602 and 802 of

the Federal Rules of Evidence and (2) that a statement made by

Motley regarding the alleged motivation for arresting Hart is

inadmissible under Rule 602 and in violation of Rule 56(e) of the

Federal Rules of Civil Procedure.7 The district court held that

"[b]ecause the disposition of defendant's motion for summary

judgment does not turn in any way on the consideration of the

disputed evidence, the motion to strike is denied as moot."
15

Defendants, however, assert that the district court nevertheless

considered both pieces of evidence in denying their motion and

allege that the court erred in refusing to strike the evidence from

the summary judgment record. While we review the district court's

denial of summary judgment on grounds of immunity de novo, we

review evidentiary rulings for manifest error. Allen v.

Pennsylvania Engineering Corp., 102 F.3d 194, 195 (5th Cir.1996).

A

Hart testified in her deposition that her neighbor had told

Hart that, on the first day of Hart's detention, the neighbor had

attempted to arrange for a bail bondsman to bail her out of jail.

In addition, Hart testified that Shelly Dodson, a trustee at the

Red River County jail, had told her that someone at the jail had

informed the bail bondsman that Hart could not be released because

of the federal hold. Hart did not offer affidavits or deposition

testimony from either her neighbor, Dodson, or the bail bondsman in

opposition to defendants' summary judgment motion.

O'Brien and Montana assert that this evidence is inadmissible

hearsay. Moreover, they assert that, even though the district court

disavowed any reliance on Hart's testimony, the court nonetheless

considered the evidence. In support of their assertion, they cite

the following statement by the court: "The plaintiff ... contends

that her bail was denied because Motley ... falsely told the

justice of the peace that a "federal hold' had been placed on

Hart's property." However, this statement is not a finding of the

district court; it is merely a statement of Hart's claim and
16

theory of the case. Moreover, the district court explicitly set

forth the evidence it considered in support of Hart's

theory—undisputed evidence that the words "bail denied federal

hold" appear on the criminal complaint signed by Motley and the

fact, also undisputed by the parties, that there is no such thing

as a "federal hold." The court nowhere mentions the challenged

hearsay testimony. We therefore find that the district court did

not rely on Hart's testimony, even though it did not explicitly

strike the evidence from the summary judgment record.

However, insofar as Hart's testimony is relevant to our de

novo review of defendants' summary judgment motion, we decline to

consider it. Hart's testimony concerning what Dodson told her

about what a third-party said to a bail bondsman is inadmissible

double hearsay under Fed.R.Evid. 801 and 802 and does not otherwise

fall within an exception to the hearsay rule.

B

O'Brien and Montana next challenge the following statement

offered by Hart in her brief in opposition to summary judgment:

"Defendant Former Deputy Motley admits that he may have thought

that Plaintiff Hart was taken to jail in an effort to get her to

testify against Mr. Conine. In fact, he states that today he might

believe that intent was the motivating force behind the decision to

have Plaintiff Hart arrested and carried to jail." In her response

to the summary judgment motion, Hart cites to the following

exchange from Motley's deposition:

Q: Is it your view that Ms. Hart was taken to jail, and that you

were told to take her to jail, in an effort to get her to
17

testify on Conine?

A: No.

Q: Have you ever told anybody that?

A: No.

...

Q: In fact, isn't it your view that the motivating force behind the

decision to have Ms. Hart arrested and carried to jail was to

get her to testify against Conine?

A: No.

...

Q: Well, you don't remember believing that?

A: I might think that today.

Q: Okay. Well, that's what I'm trying to find out.

A: It wasn't my case. All I did was transport her.

O'Brien and Montana argue that Motley's statement concerning the

other officers' motivation in arresting her is speculative and

inadmissible under Fed.R.Evid. 602.

The officers assert that the district court relied on this

evidence by pointing to the following statement by the district

court: "Hart's theory of events is essentially that the defendants

knew she was not guilty of any illegal activity, but arrested her,

filed criminal charges against her, and held her in jail without

bail in order to pressure her into providing incriminating

information about Conine." Once again, the district court

explicitly set forth the evidence it considered with respect to

Hart's theory: evidence that Montana told her "Your ass is in

trouble, you better sing like a bird," Hart's testimony that Motley
18

told her several days after her arrest that he thought she was

innocent, and Motley's deposition testimony that he does not recall

making such a statement to Hart. The district court did not mention

the challenged evidence.

The officers argue that the district court nonetheless relied

on the challenged evidence when it determined that "making all

inferences in the plaintiff's favor, ... Motley signed a criminal

complaint against Hart when he knew she had committed no crime."

However, this conclusion is supported by the evidence upon which

the district court explicitly stated that it would rely—that is,

Hart's testimony that Motley told her he thought she was innocent.

We find no evidence that the district court relied on the

challenged evidence in denying summary judgment.

Furthermore, we decline to consider Motley's deposition

testimony concerning the motivation of the other officers in our de

novo review of the summary judgment evidence. Under Rule 602, lay

witnesses may offer opinion testimony about matters of which they

have personal knowledge. See Fed.R.Evid. 602. This may include

the motivation or intent of another person, if the witness has an

adequate basis for his or her opinion, such as personal knowledge

or an opportunity to observe the surrounding circumstances.

Hansard v. Pepsi-Cola Metropolitan Bottling Co., 865 F.2d 1461,

1466-67 (5th Cir.), cert. denied, 493 U.S. 842, 110 S.Ct. 129, 107

L.Ed.2d 89 (1989) (allowing lay witness, "with some hesitancy," to

testify concerning motivation for plaintiff's employment

termination). See also John Hancock Mut. Life Ins. Co., 585 F.2d
 

8Motley's opinion may be admitted against him pursuant to

Fed.R.Evid. 801(d)(2) as an admission of a party opponent.

However, as we discuss below, the officers reasonably believed they

had probable cause to detain Hart, and their intent to question her

about Conine does not make the arrest actionable under section

1983. 

19

1289, 1294 (5th Cir.1978) (allowing witness who observed

altercation first hand to testify to victim's belief that his wife

would never shoot him); Bohannon v. Pegelow, 652 F.2d 729, 732

(7th Cir.1981) (permitting witness who had observed arrest to

testify that she believed arrest was motivated by racial

prejudice).

In this case, however, the court has no means by which to

evaluate the basis for Motley's testimony. Motley did not

participate in the investigation or surveillance, was not present

until the day of the arrest, and did not participate in the

decision to arrest Hart. Motley's deposition testimony does not

reveal whether his current belief is based on observations gathered

at or around the time of the arrest itself. In short, we have no

assurance that Motley has sufficient personal knowledge to draw a

reliable conclusion about the officers' motivations. Therefore, we

find that Motley's testimony is inadmissible under Rules 602 and

701, and we will not consider the evidence in our review of the

district court's denial of summary judgment as to O'Brien and

Montana.8

V

Starnes alleges that the district court mistakenly decided

that he did not have absolute immunity as a matter of law against
20

Hart's federal claims. In making this determination, the district

court found that Starnes' "primary role was as a legal advisor to

the officers conducting the investigation and executing the

search." Starnes disputes this finding. We review denial of

summary judgment de novo. Coleman v. Houston Indep. Sch. Dist.,

113 F.3d 528, 533 (5th Cir.1997). In determining whether a genuine

issue of material fact remains on this point, we do not review

whether the evidence "could support a finding that particular

conduct occurred," Behrens, --- U.S. at ----, 116 S.Ct. at 842, but

we may "take, as given, the facts that the district court assumed

when it denied summary judgment" and determine whether those facts

state a claim under clearly established law. Cantu v. Rocha, 77

F.3d 795, 803 (5th Cir.1996).

We normally look to state law to determine the lawfulness of

an arrest by a state officer for a state offense. Michigan v.

DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 2631, 61 L.Ed.2d 343

(1979); Ker v. California, 374 U.S. 23, 37-38, 83 S.Ct. 1623,

1632, 10 L.Ed.2d 726 (1963) (plurality). However, in a section

1983 action, a plaintiff alleging unlawful search and arrest by

state officers asserts that he was deprived of rights secured by

the federal constitution or federal statute. Therefore, state law

governing searches and arrests does not control. Fields v. City of

S. Houston, 922 F.2d 1183, 1189-90 & n. 7 (5th Cir.1991).

The Supreme Court has adopted a "functional approach" to the

question of absolute immunity, one that looks to "the nature of the

function performed, not the identity of the actor who performed
21

it." Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 995, 47

L.Ed.2d 128 (1976). A prosecutor is absolutely immune for

initiating and pursuing a criminal prosecution. Specifically, a

prosecutor is absolutely immune when he acts in his "role as

advocate for the State," Burns v. Reed, 500 U.S. 478, 491, 111

S.Ct. 1934, 1942, 114 L.Ed.2d 547 (1991) (internal quotation marks

omitted), or when his conduct is "intimately associated with the

judicial phase of the criminal process." Id. at 492, 111 S.Ct. at

1942 (internal quotation marks omitted). However, a prosecutor

does not enjoy absolute immunity for acts of investigation or

administration. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113

S.Ct. 2606, 2615, 125 L.Ed.2d 209 (1993).

A prosecutor has the burden of establishing that he was an

"advocate" for each function at issue. See Burns, 500 U.S. at 486,

111 S.Ct. at 1939; see also Buckley, 509 U.S. at 274, 113 S.Ct. at

2616 ("The question ... is whether the prosecutors have carried

their burden of establishing that they were functioning as

"advocates' when they were endeavoring to determine whether the

bootprint at the scene of the crime had been made by petitioner's

foot."). Even if a prosecutor fails to show absolute immunity for

a given activity, he may still show qualified immunity. Buckley,

509 U.S. at 273, 113 S.Ct. at 2615-16.

Hart premises her claims against Starnes on four arguments.

First, she alleges that Starnes knowingly or recklessly provided

the false information in the warrant affidavit that Hart was

married to Stanley Hart, a known drug cultivator. Second, she
22

asserts that Starnes allowed the search and arrest to continue when

he knew that the affidavit described the wrong Peggy Hart. Third,

she avers that Starnes participated in the decision to place a

federal hold on Hart. Fourth, she claims that Starnes went with

O'Brien to visit Hart in jail to coerce her into providing

information for the case against Conine.

A

Hart's first argument pertains to Starnes' function of

providing information for inclusion in an affidavit supporting a

warrant. With this function, Starnes acted as a legal adviser to

the officers and, much like the officers who participated in the

surveillance, an investigator. A prosecutor is not absolutely

immune for giving legal advice to the police, Burns, 500 U.S. at

496, 111 S.Ct. at 1945, and a prosecutor who acts in the role of a

policeman is liable like a policeman if, in so acting, he deprives

a plaintiff of rights under the Constitution or federal laws.

Joseph v. Patterson, 795 F.2d 549, 556 (6th Cir.1986), cert.

denied, 481 U.S. 1023, 107 S.Ct. 1910, 95 L.Ed.2d 516 (1987).

Moreover, "[a] prosecutor neither is, nor should consider himself

to be, an advocate before he has probable cause to have anyone

arrested." Buckley, 509 U.S. at 274, 113 S.Ct. at 2616. In short,

until charges have been filed against an individual, a prosecutor

is not absolutely immune for cooperating with law enforcement

officers in obtaining a search warrant against that person based on

false information. See Guerro v. Mulhearn, 498 F.2d 1249, 1256

(1st Cir.1974) (ruling that prosecutor did not have absolute
23

immunity where defendant alleged that prosecutor had cooperated

with police defendants in obtaining a search warrant based on

perjured testimony); see also Barr v. Abrams, 810 F.2d 358, 361-62

(2d Cir.1987) (ruling that prosecutors were absolutely immune for

filing criminal information charging plaintiff with contempt and

then applying to court for arrest warrant on that charge);

McSurely v. McClellan, 697 F.2d 309, 320 (D.C.Cir.1982) (holding

that prosecutor was only protected by qualified immunity for

preparing pre-indictment search and arrest warrants). Therefore,

Starnes does not enjoy absolute immunity from liability arising out

of the inaccurate information in the affidavit.

B

Hart's second argument deals with the "function" of

preventing an arrest during the execution of a warrant after

realizing that information in the affidavit supporting the warrant

was inaccurate. "[A] prosecutor who assists, directs or otherwise

participates with, the police in obtaining evidence prior to an

indictment undoubtedly is functioning more in his investigative

capacity than in his quasi-judicial capacities of deciding which

suits to bring and ... conducting them in court," and is thus only

entitled to qualified immunity. Marrero v. City of Hialeah, 625

F.2d 499, 505 (5th Cir.1980) (citation and internal quotations

omitted), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d

337 (1981); see also Buckley, 509 U.S. at 274, 113 S.Ct. at 2616

(noting that a prosecutor is not absolutely immune for planning and

executing a raid on a suspected weapons cache).
24

However, Starnes may also enjoy absolute immunity under Mays

v. Sudderth, 97 F.3d 107 (5th Cir.1996), for his refusal to prevent

the search of Hart's home and her arrest during the execution of

the warrant. In Mays, we held that "an official acting within the

scope of his authority is absolutely immune from a suit for damages

to the extent that the cause of action arises from his compliance

with a facially valid judicial order issued by a court acting

within its jurisdiction." Id. at 113. In reaching this

conclusion, we determined that the common law provided officials

with such immunity at the time 42 U.S.C. § 1983 was enacted in

1871. See Butz v. Economou, 438 U.S. 478, 508, 98 S.Ct. 2894,

2912, 57 L.Ed.2d 895 (1978) (holding that to determine if

government official is absolutely immune, court must undertake a

considered inquiry into the immunity historically accorded the

relevant official at common law and the interests behind it). We

relied heavily on a Supreme Court decision, Erskine v. Hohnbach, 81

U.S. (14 Wall.) 613, 20 L.Ed. 745 (1871), which referred to

absolute immunity for "ministerial officers acting in obedience to

process, or orders issued to them by tribunals or officers invested

by law with authority to pass upon and determine particular facts,

and render judgment thereon...." Id. at 616.

 In the instant case, the magistrate ordered that the search

and arrest warrant be carried out by "the Sheriff or any Peace

Officer of Lamar County, Texas or any Peace Officer of the State of

Texas." Starnes is not a sheriff or peace officer of Lamar County

or the State of Texas, and is not otherwise mentioned in the
 

9This conclusion not only accords with our earlier decision in

Marrero, but also with those of other circuits which have addressed

the issue. See Hummel-Jones v. Strope, 25 F.3d 647, 653 & n. 10

(8th Cir.1993) (analyzing prosecutor's liability for participation

in unreasonable search of birthing clinic under qualified

immunity); Day v. Morgenthau, 909 F.2d 75, 78 (2d Cir.1990)

(ruling that allegations suggesting that prosecutor may have

participated in executing arrest were not covered by absolute

immunity); Mullinax v. McElhenney, 817 F.2d 711, 715 (11th

Cir.1987) (holding that prosecutors were only qualifiedly immune

for their involvement in raid on jail cell); Joseph, 795 F.2d at

556 (holding that "we have no doubt" that prosecutor's

participation in search with police of defendant's store that went

beyond scope of warrant was not subject to absolute

immunity);McSurely, 697 F.2d at 319-20 (holding that prosecutor was

only entitled to qualified immunity for participating in raid);

Jacobson v. Rose, 592 F.2d 515, 524 (9th Cir.1978) (holding that

prosecutors who helped implement wiretap were not absolutely

immune), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298

(1979); Hampton v. City of Chicago, 484 F.2d 602, 609 (7th

Cir.1973) (holding that prosecutor, who allegedly participated in

25

warrant. See Tex. Penal Code Ann. § 1.07(a)(36) (defining "peace

officer"); Tex.Code Crim. Proc. Ann. art. 2.12 (same); Tex.Code

Crim. Pro. Ann. art. 15.01 ("A "warrant of arrest' is a written

order from a magistrate directed to a peace officer or some other

person specially named, commanding him to take the body of the

person accused of an offense...."); Deltenre v. State, 808 S.W.2d

97 (Tex.Crim.App.1991) (discussing statutes). While Starnes was

present during the search of Hart's property and her arrest, he was

not acting in obedience to the magistrate's commands in the search

and arrest warrant; the warrant was not even addressed to him.

Thus, since Starnes was not "comply[ing]" with the warrant, he may

not be "clothe[d] ... with the absolute judicial immunity enjoyed

by the judge issuing the order." Mays, 97 F.3d at 108. He

participated in the search and seizure at the peril of receiving

only qualified immunity.9
the planning and execution of a purportedly illegal raid on

apartment, did not warrant absolute immunity any more than the

police officers allegedly acting under his direction), cert.

denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974); cf.

Pachaly v. City of Lynchburg, 897 F.2d 723, 727 (4th Cir.1990)

(finding that prosecutor was absolutely immune for participating in

an allegedly illegal post-indictment search that the prosecutor

asserted was necessary to obtain evidence to prosecute the

indictment). 

26

C

Hart's third contention deals with the function of

recommending the denial of bail. This function is intimately

associated with the judicial phase of the criminal process, and

deals with the initiation and pursuit of criminal prosecution. In

carrying it out, a prosecutor is acting as an advocate, rather than

as an investigator or administrator, and enjoys absolute immunity

against any claims arising out of this function. See Lerwill v.

Joslin, 712 F.2d 435, 438 (10th Cir.1983) (stating that "a

prosecutor's advocacy of a given amount of bail" is entitled to

absolute immunity).

D

 Finally, Starnes suggests that he is absolutely immune with

regard to Hart's claim that he visited her in jail to pressure her

to provide information against Conine. However, there is no

dispute that, at the time of the visit, ample probable cause

existed to arrest and detain Conine. Therefore, assuming Hart's

characterization of the visit is correct, Starnes was simply

attempting to gather information relevant to his prosecution of

Conine. Accordingly, Starnes was acting as an advocate and is

absolutely immune from Hart's claim here. See Hill v. City of New
27

York, 45 F.3d 653, 662-63 (2d Cir.1995) (noting that prosecutor's

interview of witness who allegedly made inculpatory statements

about accused would only be investigatory function if prosecutor

lacked probable cause to arrest accused and results of interview

contributed to his finding of probable cause).

In sum, we find that Starnes is not absolutely immune for

allegedly providing inaccurate information for the warrant

affidavit, nor for allowing the search and arrest to continue when

he knew that the affidavit described a different Peggy Hart;

however, we find that he is absolutely immune from the claims that

he participated in the decision to place Hart on federal hold and

that he tried to coerce Hart into providing information about

Conine. As to Hart's first two arguments, Starnes argues that he

is immune from suit because of qualified immunity. We consider

this claim in our discussion of the qualified immunity claims of

the police officers in the next section.

VI

All the officials, including Starnes, aver that the district

court erred in not granting them summary judgment on the grounds of

qualified immunity against Hart's federal claims. Generally

speaking, qualified immunity protects government officials

performing discretionary functions from civil liability under

federal law unless their conduct violates a "clearly established

[federal] statutory or constitutional right[ ] of which a

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

U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). A
28

plaintiff must show that "when the defendant acted, the law

established the contours of a right so clearly that a reasonable

official would have understood his acts were unlawful." Anderson

v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d

523 (1987). In evaluating an immunity defense to a constitutional

claim, the court must first determine whether the plaintiff has

alleged the violation of a constitutional right at all. Siegert v.

Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277

(1991). We now examine in turn whether O'Brien, Montana, Motley,

and Starnes enjoy qualified immunity.

A

Hart argues that O'Brien violated her Fourth Amendment rights

in four different ways, and that he is not entitled to qualified

immunity for any of them. First, he submitted the affidavit with

the two inaccurate statements to the magistrate and requested the

warrant without probable cause; second, he made the original

decision to detain Hart; third, he placed Hart on "federal hold;"

fourth, he permitted Hart to remain in jail even though he knew

that there had not been probable cause to arrest her.

1

Hart contends that O'Brien violated her Fourth Amendment

rights by submitting an affidavit to the magistrate without

probable cause. Subsumed in the qualified immunity inquiry are two

other questions involving the reasonableness, if any, of O'Brien's

use of the inaccurate statements without further investigation. We

will first consider whether O'Brien is immune for including the
29

inaccurate statements in the affidavit of probable cause. Then we

will consider whether he is immune from Hart's claim that he swore

to an affidavit and conducted a search without sufficient facts to

show probable cause.

Under Siegert, we must consider at the threshold whether Hart

even alleges a Fourth Amendment violation with regard to the false

information claims. 500 U.S. at 232, 111 S.Ct. at 1793. The

Supreme Court in Franks v. Delaware established that an officer is

liable for swearing to false information in an affidavit in support

of a search warrant, provided that: (1) the affiant knew the

information was false or would have known it was false except for

the affiant's reckless disregard for the truth; and (2) the

warrant would not establish probable cause without the false

information. 438 U.S. at 171, 98 S.Ct. at 2684. Allegations of

negligence or innocent mistake are insufficient. Id. Therefore

Hart's claim that O'Brien was at least reckless in including the

inaccurate statements states a valid cause of action under the

Fourth Amendment.

Next, we will consider whether O'Brien's sworn statement that

Hart lived in Conine's trailer was knowingly false or reckless.

O'Brien argues that, based on the surveillance observations,

reasonable police officers would agree with the conclusion that

Hart was residing in the trailer. Indeed, the officers saw that

Hart spent a great deal of time with Conine during the surveillance

period. The undisputed facts establish that she went on a trip out

of town with Conine and was observed upon her return carrying
30

clothing from the car into the trailer; she was in the trailer at

least part of the time during the visit of a known marijuana

grower; she performed certain domestic chores in and around the

trailer; and she stayed overnight in the trailer at least four

times. O'Brien stated in the affidavit for probable cause that the

property had been under almost continuous surveillance during the

two weeks in question; therefore it is reasonable to assume that

Hart spent the other nights during the two-week surveillance away

from the trailer.

Hart said that she lived in the white house with black trim

during this time. However, since Hart did not own the house, even

a reasonable investigation into property records would not have

established that Hart lived there. Hart later testified that she

did not hold title to the house or surrounding property; she was

living there by herself with permission of the owner. More

importantly, there is evidence suggesting that a reasonable police

officer may have thought that Hart had established a second

residence in Conine's trailer. See United States v. Risse, 83 F.3d

212, 216 (8th Cir.1996) (rejecting defendant's argument that

because officers knew defendant had other residence, they could not

have reasonably believed defendant lived at premises searched;

"[w]e have found no authority ... that a person can have only one

residence for Fourth Amendment purposes."); Washington v. Simpson,

806 F.2d 192, 196 (8th Cir.1986) (finding that suspect "resided" at

the house, for purposes of entering premises to execute arrest

warrant, when she stayed there two to four nights per week, kept
31

certain personal belongings there, and gave that address as

residence when booked by police).

We are confident that a reasonably competent officer in

O'Brien's position would conclude that Hart resided at the trailer.

O'Brien's conclusion was not knowingly inaccurate, and although it

was not ineluctable from what he observed, its inclusion in the

affidavit was not reckless. Therefore, qualified immunity will

protect O'Brien from suit on the basis of this inaccuracy in the

affidavit. Franks, 438 U.S. at 171, 98 S.Ct. at 2684.

Second, we consider whether O'Brien reasonably relied on

Starnes's statement that plaintiff Hart was married to known drug

cultivator Stanley Hart. As an initial matter we note that the

statement that "Peggy Hart is married to Stanley Hart, who

according to DTF files, is a known marihuana cultivator in Red

River County, Texas" is technically "true." A Peggy Hart was

married to Stanley Hart. However, it would be absurd to wrest this

sentence out of the context of the affidavit. We must interpret

affidavits for arrest or search warrants in a commonsense and

realistic manner. United States v. Ventresca, 380 U.S. 102, 108,

85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). Obviously, this

reference to "Peggy Hart [being] married to Stanley Hart" was

intended to refer to the "Peggy Hart" in whose car the "unknown

white female" was seen driving. And that Peggy Hart (who was also

the "unknown white female") was the plaintiff, Peggy Nell Hart.

It is theoretically possible that O'Brien may have been able

to determine that the statement was inaccurate through additional
32

investigation. For instance, O'Brien had discovered that a couple

of the cars on the property were registered to a Peggy Hart.

Perhaps he may have been able to ascertain from public records that

the Peggy Hart who lived near Conine was a different person than

the Peggy Hart who was married to Stanley Hart. However, the

summary judgment evidence adduces no genuine issue that additional

investigation would have revealed this mistake. In addition, the

information that Hart was married to Stanley Hart was somewhat in

tension with the other information in the affidavit that Hart

resided with Conine; perhaps this information should have prompted

additional investigation. Once again, the summary judgment record

leaves us to speculate whether such additional investigation would

have been fruitful. We have reviewed the summary judgment record

thoroughly, and conclude that there is no genuine issue that a more

extensive investigation would have established that there were two

Peggy Harts.

Moreover, it is uncontested that O'Brien obtained the

information about Hart being married to Stanley Hart from Starnes

after O'Brien had concluded his investigation and as he was

preparing his affidavit. O'Brien testified that, for this reason,

he did not independently investigate the accuracy of the

information. A reasonably competent officer might rely without

investigation on information from a trustworthy source such as a

prosecutor, especially if the prosecutor indicates that the

information comes from law enforcement records. The summary

judgment record contains no indication that O'Brien had reason to
33

believe that there were two Peggy Harts within the county, or that

the Peggy Hart that Starnes knew about (who was linked to a known

marijuana cultivator) was different from the Peggy Hart who owned

the cars seen on the property (who was also linked to a different

known marijuana cultivator).

Under the circumstances, we find that a reasonably competent

police officer would have thought that the statement had sufficient

internal indicia of reliability to be included in the affidavit

without further investigation (though they would have attributed

the statement to Starnes). O'Brien's use of Starnes's statement

may or may not have been negligent, but O'Brien was not reckless in

including it in the affidavit. Therefore he is qualifiedly immune

from suit based on this error in the affidavit. Franks, 438 U.S.

at 171, 98 S.Ct. at 2684.

We turn to the broader issue: whether O'Brien's reasonable

belief that Hart resided at the trailer and was married to a known

marijuana cultivator, coupled with the other evidence, is

sufficient to establish that he reasonably thought that there was

probable cause to search Hart's home and arrest her.

The objective standard of Harlow applies to claims of

unlawful search and arrest such as this, in which the plaintiff

alleges that the officer who requested the warrant intentionally or

recklessly sought an affidavit without probable cause. "Only where

the warrant application is so lacking in indicia of probable cause

as to render official belief in its existence unreasonable, will

the shield of immunity be lost." Malley v. Briggs, 475 U.S. 335,
34

344-45, 106 S.Ct. 1092, 1098, 89 L.Ed.2d 271 (1986) (citation

omitted); see also Anderson, 483 U.S. at 644-45, 107 S.Ct. at

3041-42 (applying Malley to unconstitutional searches). The

crucial issue "is whether a reasonably well-trained officer in [the

defendant's] position would have known that the affidavit failed to

establish probable cause and that he should not have applied for

the warrant." Malley, 475 U.S. at 345, 106 S.Ct. at 1098. The

officer "will not be immune if, on an objective basis, it is

obvious that no reasonably competent officer would have concluded

that a warrant should issue; but if officers of reasonable

competence could disagree on this issue, immunity should be

recognized." Id. at 341, 106 S.Ct. at 1096. In other words, there

must not even "arguably" be probable cause for the search and

arrest for immunity to be lost. Santiago v. Fenton, 891 F.2d 373,

386 (1st Cir.1989). Probable cause does not require proof beyond

a reasonable doubt, but only a showing of the probability of

criminal activity. United States v. Brown, 941 F.2d 1300, 1302

(5th Cir.), cert. denied, 502 U.S. 1008, 112 S.Ct. 648, 116 L.Ed.2d

665 (1991). A magistrate's findings on the issue of probable cause

are entitled to great deference. Id.

 "Probable cause exists when the facts available at the time

of the arrest would support a reasonable person's belief that an

offense has been, or is being, committed and that the individual

arrested is the guilty party." Blackwell, 34 F.3d at 303.

Probable cause may exist even though officers have observed no

unlawful activity and are unaware of the identity of a defendant.
35

United States v. Pentado, 463 F.2d 355, 361 (5th Cir.), cert.

denied, 409 U.S. 1079, 93 S.Ct. 698, 34 L.Ed.2d 668 (1972) and

cert. denied, 410 U.S. 909, 93 S.Ct. 963, 35 L.Ed.2d 271 (1973).

"The observation of unusual activity for which there is no

legitimate, logical explanation can be the basis for probable

cause." United States v. Alexander, 559 F.2d 1339, 1343 (5th

Cir.1977), cert. denied, 434 U.S. 1078, 98 S.Ct. 1271, 55 L.Ed.2d

785 (1978).

However, "a person's mere propinquity to others independently

suspected of criminal activity does not, without more, give rise to

probable cause to search that person." Ybarra v. Illinois, 444

U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979) (citing

Sibron v. New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902, 20

L.Ed.2d 917 (1968)). "Where the standard is probable cause, a

search or seizure of a person must be supported by probable cause

particularized with respect to that person." Id.

The evidence in the affidavit includes the following: (1)

Conine "and/or" the "unknown white female" with Hart's physical

characteristics have entered the "white frame house with black trim

and shutters" (i.e., Hart's house), (2) a couple of Hart's cars are

on the property to be searched, (3) the "unknown white female" was

seen driving one of Hart's cars, and (4) Conine and the "unknown

white female" are "in charge of and controlled" the property. In

addition, because we have decided that O'Brien's inclusion of

inaccurate statements was not reckless under Franks, we must also

consider O'Brien's belief that Hart lived in the trailer with
36

Conine and that Hart was married to a known drug cultivator, in

determining whether O'Brien reasonably believed probable cause

existed.

Some of these statements are not very probative of probable

cause. For example, the fact that Hart's house and cars are on the

property to be searched is not suspicious, given the fact that her

house happened to be near Conine's trailer and she would have been

expected to park her cars near her home. The fact that Hart often

visited the trailer and sometimes stayed overnight, or the fact

that she would sometimes go to Conine's barn, do not establish that

she was growing marijuana with Conine. There is no undisputed

evidence that she visited the marijuana patches on the property to

be searched. Finally, the officials neither saw nor found any

evidence of drugs or drug paraphernalia in Hart's home or on her

property, the only areas indisputably under her control.

However, from the perspective of the officers, Hart lived

smack-dab in the middle of 1,132 marijuana plants, 188 of which

were located directly behind her house. She spent a fair amount of

time with Conine and in his trailer, and she appeared to reside in

the trailer with a suspected (and previously convicted) marijuana

cultivator. She also appeared to the officers pursuing the warrant

to be married to another marijuana cultivator. She had been

present when a known drug cultivator visited Conine, and she had

driven with Conine to the gate of the trash dump adjacent to

Conine's illicit crops.

It was clear in this case from the presence of the marijuana
37

crops that a crime was being committed; nevertheless, the evidence

connecting Hart to the crime was thin. It is not a crime under

federal law or Texas law to maintain a social relationship with a

drug cultivator. The question in qualified immunity, however, is

not whether the officers actually had probable cause, but rather

whether they acted recklessly in swearing a warrant based on the

information they possessed. The officers lose their immunity only

if it is "obvious that no reasonably competent officer would have

concluded that a warrant should issue; but if officers of

reasonable competence could disagree on this issue, immunity should

be recognized." Malley, 475 U.S. at 341, 106 S.Ct. at 1096. In

this case, the call on probable cause was very close, and we cannot

say that no reasonable officer would have thought he had probable

cause to arrest Hart. Our conclusion is bolstered by the fact that

the neutral and detached magistrate, faced with the same facts,

determined that probable cause existed. This tends to support the

reasonableness of the officers' request for the warrant based on

their observations.

The officers may have been negligent in their investigation,

and wrong to conclude that they had probable cause. However,

negligence is insufficient to create liability for police officers

under Malley. Therefore we find that O'Brien is protected by

qualified immunity on this point.

2

Hart alleges that O'Brien violated her constitutional rights

by instructing Motley to take her in to the police station without
 

10In addition, O'Brien and the other officers would have been

entitled to absolute immunity for executing a facially valid

warrant issued by a court of competent jurisdiction. Mays, 97 F.3d

at 108. However, none of the officers moved for summary judgment

on grounds of absolute immunity. 

38

probable cause, even though Montana made the actual decision to

take her into custody. Hart's allegations against O'Brien do not

state a constitutional claim, because O'Brien and the other

officers were directed by the probable cause warrant to arrest

Hart. Hart does not contend that the warrant for her arrest was

facially invalid, nor that the officers executed the warrant in any

way other than that prescribed by the judge. We have stated that

police officers acting pursuant to a facially valid judicial

warrant enjoy qualified immunity for executing the warrant. Hamill

v. Wright, 870 F.2d 1032, 1036 (5th Cir.1989). O'Brien was

strictly complying with a facially valid judicial order, issued by

a court acting within its jurisdiction, and he is therefore

entitled to qualified immunity on this claim.10

3

Motley testified that O'Brien instructed him to put Hart on

federal hold to ensure that she stayed in jail until federal DEA

officers could speak to her. The magistrate claims in an affidavit

that he does not "recall" there being a federal hold or any

discussions about a federal hold, and states that any such hold

would not have affected the length of Hart's stay in jail. The

magistrate avers that he would have denied bail for a day

regardless of whether there was a federal hold because the

"investigation scene was still ongoing." However, the sheriff at
39

the time and Hart herself have testified that they each believed

that the magistrate denied bail because of the federal hold.

The federal hold remained in place for one day. Hart alleges

that O'Brien violated due process by causing her to be denied bail

by falsely suggesting to the magistrate (through Motley) that there

was a federal detainer on her. If a state detainee has an

outstanding federal warrant or has been indicted on federal

charges, a federal official may place a detainer on the detainee,

asking the state to hold him for federal authorities. Davis v.

Attorney General, 425 F.2d 238, 239 (5th Cir.1970). Presented with

a federal detainer, the state may deny the detainee bail, hold him

in custody pursuant to state law, and then turn him over to the

federal government for prosecution. Reno v. Koray, 515 U.S. 50, 62

n. 5, 115 S.Ct. 2021, 2028 n. 5., 132 L.Ed.2d 46 (1995); United

States v. Dovalina, 711 F.2d 737, 740 (5th Cir.1983).

 In this case, no federal detainer existed. Moreover, there

was no basis for such a detainer since the federal government had

not charged Hart with anything. Motley's explanation for the

"federal hold"—that O'Brien wanted to assure that Hart would be

available to be interviewed by federal agents—does not justify

detention without bail. See 18 U.S.C.App. 2 (interstate agreement

on detainers); Tex.Code Crim. Pro. Ann. art. 51.14 (same).

However, causation is an element of a section 1983 claim;

O'Brien's actions must have actually caused the deprivation of

liberty of which Hart complains. See 42 U.S.C. § 1983 (providing

that a state official is only liable where he "subjects, or causes
 

11Given that the magistrate later set bail at $50,000, Hart

cannot reasonably claim that the magistrate would have released her

on her own recognizance on the first day of her detention absent

O'Brien's alleged misconduct. 

40

to be subjected" a person to deprivation of any rights, privileges,

or immunities secured by Constitution and laws). The magistrate

denied Hart bail on the first day of her detention only; Hart,

however, was unable to post bail for over two weeks after her

initial confinement. We can reasonably assume, then, that she

could not have posted bail one day after her initial confinement

had it been set, and thus that the federal hold had no effect on

the length of her detention.11 Therefore, Hart did not suffer any

loss of liberty caused by O'Brien's actions. Accordingly, Hart has

failed to state a constitutional claim against O'Brien based on

denial of bail; Siegert therefore dictates that qualified immunity

bars this claim as well. 500 U.S. at 232, 111 S.Ct. at 1793.

4

Hart alleges that O'Brien is responsible for damages stemming

from her two-week detention because he did not disclose "patently

exculpatory evidence" to the prosecutor, namely his alleged

knowledge that there was no probable cause for her arrest. Police

detainer, even of one innocent of any wrongdoing, pursuant to a

valid warrant does not give rise to a constitutional claim. Baker

v. McCollan, 443 U.S. 137, 143-44, 99 S.Ct. 2689, 2694, 61 L.Ed.2d

433 (1979) (holding that police detainer of misidentified suspect

for three days, pursuant to a valid warrant, does not state a claim

under section 1983). However, a plaintiff states a section 1983
41

claim against a police officer who, after learning of "patently

exculpatory evidence," deliberately fails to disclose it to the

prosecutor. Sanders v. English, 950 F.2d 1152, 1162 (5th

Cir.1992). Such deliberate concealment can be the basis for an

inference that a defendant police officer maliciously initiated and

maintained a prosecution. Id. at 1163.

In Sanders, a police lieutenant arrested a robbery suspect

after a victim identified him. Id. at 1156. In the days

immediately following the arrest, several people brought

exculpatory evidence to the lieutenant's attention: people told

the officer, for example, that the victim and Sanders (the

arrestee) were related, calling into question the victim's

inability to identify Sanders until several days after the crime in

an informal lineup; an eyewitness who had helped police artists

compose a sketch of the suspect told the officer that Sanders was

the wrong person; other victims of the same assailant were unable

to identify Sanders as their assailant; and a few days after the

arrest, the lieutenant learned that Sanders had a credible alibi

supported by three witnesses. Id. Faced with all of this evidence

showing that Sanders was not the robber, the police lieutenant

"deliberately looked the other way in the face of exonerative

evidence indicating that he had arrested the wrong man...."

There is no similar exculpatory evidence in the instant case.

Hart alleges that O'Brien knew there was no probable cause to

arrest her, but refused to notify prosecutors of this fact. Hart

cites O'Brien's later deposition in which he testified that "the
42

target of the investigation was Mr. Conine. And Mr. Conine's

property.... We wasn't [sic] going down there to try to arrest

[Hart] and send her to the penitentiary. We was [sic] after Mr.

Conine, his property, and his weed, we believed to be his

marijuana." In addition, O'Brien admitted that he visited Hart in

jail to encourage her to provide information against Conine. None

of this constitutes "patently exculpatory evidence," however,

because it does not tend to show that Hart was not guilty.

Even if Conine was the primary target of the investigation

and Hart's arrest were merely pretextual, the lawfulness of Hart's

arrest does not depend on the actual motivations of the arresting

officers. Whren v. United States, --- U.S. ----, ----, 116 S.Ct.

1769, 1774, 135 L.Ed.2d 89 (1996) (holding that the proper focus of

Fourth Amendment inquiry is objective conduct, and not subjective

intent, of police officer); Anderson v. Creighton, 483 U.S. 635,

641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523(1987) (noting that

malignant motive of officers is irrelevant under Harlow test to

question of qualified immunity); United States v. Causey, 834 F.2d

1179 (5th Cir.1987) (en banc) (holding that pretextual arrest did

not violate Fourth Amendment where arrest was objectively supported

by probable cause).

In addition, this case presents facts almost opposite of

Sanders. O'Brien and the other officers at this point knew that

Hart had spent much time in Conine's trailer, and that the trailer

was littered with drugs, drug paraphernalia, and cash. After they

arrested her, they certainly had some evidence that Hart knew about
43

Conine's illicit activities. This evidence is inculpatory, not

exculpatory, and further supports the officers' decision to keep

Hart in jail. We therefore find that O'Brien was immune from suit

for illegal detention as well.

In sum, O'Brien enjoys qualified immunity from suit for

intentionally or recklessly including incorrect statements in the

affidavit, for his instruction to other officers to arrest Hart,

for pursuing the warrant, for illegal detention, and for

recommending that Hart be held pursuant to a federal hold.

B

Hart claims that Montana and Motley violated her Fourth

Amendment rights—Montana by instructing Motley to take her into

custody, and Motley by taking her to jail. She also claims that

both are liable for their participation in the discussion and

decision to impose a federal hold, and for deliberately withholding

exculpatory information from the prosecutor.

As suggested above, Montana and Motley are qualifiedly immune

for the decision to arrest Hart and for taking her to jail, because

they were acting pursuant to a facially valid warrant issued by a

court of competent jurisdiction. Hamill, 870 F.2d at 1036. There

is some proof that, shortly after Hart's arrest, Montana told her

something to the effect that her "ass is in a world of trouble" and

she needed to "sing like a bird" against Conine, suggesting that

Montana kept Hart detained only to elicit evidence against Conine.

There is also some evidence that Motley heard these statements.

The question of whether the officers had probable cause to
44

keep Hart incarcerated is different from the question of whether

they had probable cause to arrest her. Nonetheless, just as in the

context of Hart's claims against O'Brien, we find that Hart does

not state a claim for illegal detention. Montana withheld no

exculpatory evidence from the prosecutor, and he had a reasonable

belief that there was probable cause to detain her, pursuant to a

facially valid warrant. Therefore, the fact that he wanted to

question her about Conine is not, in itself, actionable under

section 1983. Furthermore, as suggested above, even construing the

facts in the light most favorable to Hart, Montana's and Motley's

participation in imposing a "federal hold" does not amount to a

constitutional violation. Hart did not suffer any loss of liberty

caused by their actions.

Therefore, Montana and Motley are entitled to qualified

immunity on all of Hart's allegations against them.

C

Starnes's claim to qualified immunity is on slightly different

footing because he is not a police officer. In section V, we held

that Starnes was absolutely immune from Hart's claims that he

participated in the decision to place her on "federal hold" and

that he tried to persuade her to provide information about Conine.

We now consider whether Starnes is qualifiedly immune from Hart's

claims stemming from the fact that he provided inaccurate

information for the warrant affidavit (i.e., the statement about

Hart being married to Stanley Hart, a known marijuana cultivator)

and from the fact that, even after realizing that this information
45

was incorrect, he refused to stop Hart's arrest.

1

Under Siegert, we must consider at the threshold whether Hart

even alleges a Fourth Amendment violation with regard to the false

information claim. 500 U.S. at 232, 111 S.Ct. at 1793. The

Supreme Court in Franks v. Delaware established that a search

violates the Fourth Amendment if it was conducted pursuant to a

warrant issued by a magistrate who was misled by information in an

affidavit, provided that the affiant knew the information was false

or would have known it was false except for his reckless disregard

for the truth. 438 U.S. at 171, 98 S.Ct. at 2684. However,

Starnes is not the affiant in this case, and, taken at face value,

Franks applies only to officers who sign a warrant affidavit or

otherwise request a warrant under oath: "[t]he deliberate falsity

or reckless disregard whose impeachment is permitted is only that

of the affiant, not of any nongovernmental informant." Id.

However, we need not take Franks only at face value. The

Court left open the possibility that a search or arrest violates

the Fourth Amendment where the affiant relies in good faith on

deliberate or reckless misstatements by another governmental

official in establishing probable cause. See id. at 164 n. 6, 98

S.Ct. at 2680 ("[P]olice [can] not insulate one officer's

deliberate misstatements merely by relaying it through an

officer-affiant personally ignorant of its falsity."). Several

circuits have held that a deliberate or reckless misstatement or

omission by a governmental official who is not the affiant may
46

nevertheless form the basis of a Franks claim. United States v.

Wapnick, 60 F.3d 948, 956 (2d Cir.1995), cert. denied, --- U.S. ---

-, 116 S.Ct. 1672, 134 L.Ed.2d 776 (1996); United States v.

DeLeon, 979 F.2d 761, 764 (9th Cir.1992); United States v.

Calisto, 838 F.2d 711, 714 (3d Cir.1988); United States v.

Pritchard, 745 F.2d 1112, 1118 (7th Cir.1984); cf. Hale v. Fish,

899 F.2d 390, 401 (5th Cir.1990) (applying Franks test to officer

who did not sign or draft affidavit but whose presence at time of

warrant tended to influence judge issuing warrant).

 We agree with the reasoning of these circuit courts that a

deliberate or reckless misstatement may form the basis for a Franks

claim against a government official who is not the affiant. "The

Fourth Amendment places restrictions and qualifications on the

actions of the government generally, not merely on affiants."

DeLeon, 979 F.2d at 764. A governmental official violates the

Fourth Amendment when he deliberately or recklessly provides false,

material information for use in an affidavit in support of a search

warrant, regardless of whether he signs the affidavit.

Although Starnes did not sign the affidavit and was not

present when O'Brien requested the warrant from the magistrate,

Starnes helped to draft the affidavit and admits he was the

exclusive source of the inaccurate information about Peggy Hart's

marital status. Hart alleges that Starnes provided the false

information intentionally or recklessly. Therefore, Hart has

stated a claim for violation of her Fourth Amendment rights under

Siegert.
 

12Starnes later testified that Stanley Hart told him sometime

prior to the raid that he had been a marijuana cultivator but had

since stopped. Starnes also testified that, sometime prior to the

raid, the Peggy Hart married to Stanley Hart informed him that

Stanley had become a drug counselor. However, the fact that

Starnes had reason to believe that Stanley Hart had stopped growing

marijuana does not impugn the truthfulness of his statement that

Stanley Hart is someone known to have cultivated marijuana, nor

would it have established doubt in Starnes's mind that the Peggy

Hart married to Stanley Hart was not the Peggy Hart who owned the

vehicles parked on or near Conine's property. 

47

The issue, then, becomes whether Starnes can demonstrate that

he did not violate any of Hart's clearly established Fourth

Amendment rights. Hart's arrest would violate the Fourth Amendment

if Starnes intentionally or recklessly included false information

in the affidavit and this information was necessary for probable

cause. Starnes provided the inaccurate information in the

affidavit about Hart being married to Stanley Hart, and he realized

that this information was incorrect the day of the raid. However,

there is no evidence that Starnes knew the information was

inaccurate before giving it to O'Brien to include in the

affidavit.12 Therefore, there is no genuine issue that he

intentionally provided false information for inclusion in the

affidavit.

The question remains whether Starnes exhibited a reckless

disregard for the truth in providing the information. Franks, 438

U.S. at 171, 98 S.Ct. at 2684. To prove reckless disregard for the

truth, Hart must present evidence that Starnes "in fact entertained

serious doubts as to the truth" of the statement that she was the

Peggy Hart married to Stanley Hart. St. Amant v. Thompson, 390 U.S.

727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968) (setting forth
48

standard for reckless disregard of truth in libel cases); see also

United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984), cert.

denied, 470 U.S. 1003, 105 S.Ct. 1354, 1355, 84 L.Ed.2d 377 (1985)

(adopting First Amendment standard for recklessness in Franks

context); United States v. Tomblin, 46 F.3d 1369, 1388 (5th

Cir.1995) (citing recklessness standard in Williams with approval).

There is some evidence in the record that Starnes knew the other

Peggy Hart, who worked at the Lamar County courthouse. However,

there is no evidence that Starnes had any reason to believe that

there might be two Peggy Harts within this rural community so as to

raise serious doubts as to the accuracy of his statements to

O'Brien.

Perhaps there are steps Starnes might have taken to verify the

information he provided, however, the summary judgment record does

not disclose what these might be, nor that they would actually show

the information to be inaccurate. Starnes is entitled to qualified

immunity on Hart's first claim.

2

Hart also claims that Starnes violated her constitutional

rights by failing to act at the arrest scene once he had seen her

and realized that some of the information supporting the warrant

was inaccurate. Starnes has admitted that he knew shortly before

Hart was arrested that the statement in the affidavit about Hart

being married to a known marijuana cultivator was incorrect, but

that he did not so inform the officers. Hart alleges that Starnes

had a duty to inform the police officers that the arrest warrant
49

was based on inaccurate information and a duty to stop execution of

the warrant.

Even assuming such a duty exists, however, Starnes did not

violate any of Hart's clearly established Fourth Amendment rights

at the time of her arrest. Law enforcement officers may have a

duty to discontinue an arrest upon discovery that information

contained in a warrant is incorrect if it is material. Cf.

Maryland v. Garrison, 480 U.S. 79, 87, 107 S.Ct. 1013, 1018, 94

L.Ed.2d 72 (1987) (once officers were on notice of a risk that

apartment they were searching was erroneously included within terms

of warrant, they were required to withdraw and discontinue search);

United States v. Marin-Buitrago, 734 F.2d 889, 894 (2d Cir.1984)

(when definite and material change has occurred in facts underlying

magistrate's determination of probable cause, officers must report

new and correcting information to magistrate before acting on

warrant). However, we can find no controlling case law that

establishes a constitutional duty on a prosecutor tagging along on

a search to inform law enforcement officers of his doubts that the

warrant should be executed as written. Therefore, under Harlow,

Starnes is qualifiedly immune against Hart's failure-to-inform

allegation.

VII

Next, O'Brien and Montana argue that the district court erred

in determining that they did not have official immunity against

Hart's state-law claims. Starnes, Motley, and Myrick did not

assert official immunity defenses to Hart's state law claims;
 

13The district court also denied the officials summary judgment

on the ground that triable issues of fact remained regarding

certain elements of the torts. Although the officials challenge

that decision and both sides have briefed the issues, we may not

entertain these arguments in the instant interlocutory appeal.

Johnson v. Jones, 515 U.S. 304, 314, 115 S.Ct. 2151, 2156, 132

L.Ed.2d 238 (1995). 

50

therefore we consider the defenses only as to O'Brien and Montana.

The state-law claims include false imprisonment, malicious

prosecution, and intentional infliction of emotional distress.13

We review district court determinations of state law de novo.

Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217,

1221, 113 L.Ed.2d 190 (1991).

The Texas Supreme Court has stated that government employees

are entitled to official immunity from suit arising from

performance of their (1) discretionary duties in (2) good faith as

long as they are (3) acting within the scope of their authority.

City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994).

Official immunity in Texas is substantially the same as qualified

immunity under federal law. Id. at 656. One important difference,

however, is that official immunity does not incorporate the

requirement that the plaintiff show the violation of a clearly

established right. Rather, official immunity hinges on whether the

official's activities were undertaken in "good faith," that is,

whether they were objectively reasonable. Id. at 656-67.

The district court determined that the officers were acting

within the scope of their authority, but that fact issues remained

as to whether they were exercising their duties in good faith. The

district court also apparently assumed that the officers were all
51

exercising discretionary duties, and Hart does not argue otherwise

in this appeal. We consider each of Hart's state-law causes of

action in turn, examining the officers' good faith in each.

A

Hart maintains that, under Texas law, O'Brien and Montana are

liable for falsely imprisoning her. She alleges that O'Brien

instructed Myrick to arrest her, coordinated the federal hold, and

did nothing to prevent her two-week detention. She further avers

that Montana is liable for making the final decision to arrest her

and for discussing the federal hold with the others.

To establish false imprisonment, Hart must prove that

O'Brien, and Montana willfully detained her without her consent and

without authority of law. James v. Brown, 637 S.W.2d 914, 918

(Tex.1982). As a general matter, liability extends to anyone who

participates in the unlawful detention or who directs or requests

the detention. Cronen v. Nix, 611 S.W.2d 651, 653

(Tex.Civ.App.1980, writ ref'd n.r.e.), cert. denied, 454 U.S. 833,

102 S.Ct. 132, 70 L.Ed.2d 112 (1981). However, "[i]f an arrest or

detention is executed under process which is legally sufficient in

form and duly issued by a court of competent jurisdiction, an

action for false imprisonment will not lie." Id. There is no

dispute that the warrant was facially valid and was issued by a

court with competent jurisdiction. Therefore, Hart cannot charge

the officers who executed the warrant with false imprisonment. See

Emerson v. Borland, 927 S.W.2d 709, 720 (Tex.App.1996, writ denied)

(plaintiff arrested pursuant to facially valid warrant and
52

imprisoned for five days could not allege false imprisonment on the

basis that probable cause did not exist to issue warrant).

In short, because the officers were acting pursuant to a

facially valid warrant, they could reasonably entertain a good

faith belief that their execution of the warrant was consistent

with Hart's rights. See Cantu, 77 F.3d at 810 (when allegations

fail to state a claim as a matter of state law, officer is entitled

to immunity). Therefore the officers enjoy official immunity

against this allegation.

B

By contrast, the issuance of a valid warrant will not shield

the officers from liability for malicious prosecution; indeed it

is conformity to valid process that separates the two causes of

action. As the Texas Supreme Court established long ago, arrests

without authority may be remedied by a claim for false

imprisonment, but any alleged wrongs committed by officers pursuant

to lawful process must be vindicated under a theory of malicious

prosecution. Hubbard v. Lord, 59 Tex. 384, 386 (Tex.1883) ("Where

the arrest is without authority, ..., [the court] may proceed here

as upon the same allegations and against the same parties as at

common law in the action of false imprisonment. Where the arrest

is made under lawful process, we must proceed alone against the

party who sued it out, and must allege malice and want of probable

cause.").

Hart asserts that O'Brien is liable for malicious prosecution

for including the two inaccurate statements in the affidavit of
53

probable cause, and that both officers are liable for the decision

to arrest her, for instigating the "federal hold," and for their

failure to provide exculpatory information to Starnes.

 To prove malicious prosecution, a plaintiff must show: (1)

the commencement of a criminal prosecution against the plaintiff;

(2) causation (initiation or procurement) of the action by the

defendant; (3) termination of the prosecution in the plaintiff's

favor; (4) the plaintiff's innocence; (5) the absence of probable

cause for the proceedings; (6) malice in filing the charge; and

(7) damage to the plaintiff. Richey v. Brookshire Grocery Co., ---

S.W.2d ----, ----, No. 95-0692, 1997 WL 378134 at *2 (Tex. July 9,

1997).

The district court denied O'Brien and Montana summary judgment

on official immunity, holding that, because issues of fact remained

contested, it could not decide the issue on summary judgment. Just

as in the context of false imprisonment, if Hart fails to state a

claim for malicious prosecution, O'Brien and Montana are

necessarily entitled to official immunity under Texas law, because

the officers could reasonably believe that their actions were

consistent with Hart's rights. Cantu, 77 F.3d at 810.

 The inclusion of inaccurate statements in a warrant for

probable cause and the failure to produce exculpatory evidence do

not state a claim for malicious prosecution under state law. As we

held in the qualified immunity analysis, O'Brien did not include

the inaccurate statements intentionally or recklessly, and

therefore as a matter of law, Hart cannot show malice as required.
54

Furthermore, consistent with this analysis, we find that O'Brien

was acting in good faith, affording him official immunity.

Moreover, as we also discussed in the qualified immunity section of

this opinion, the officers reasonably believed they had probable

cause to detain Hart, and her assertions that the officers should

have informed Starnes that they did not have probable cause do not

constitute exculpatory information.

 O'Brien and Montana similarly are officially immune for the

decision to arrest Hart, because Hart has not shown the absence of

probable cause. "The probable-cause determination asks whether a

reasonable person would believe that a crime had been committed

given the facts as the complainant honestly and reasonably believed

them to be before the criminal proceedings were instituted."

Richey, --- S.W.2d at ----, 1997 WL 378134 at *2; see also Akin v.

Dahl, 661 S.W.2d 917, 921 (Tex.1983) (same), cert. denied, 466 U.S.

938, 104 S.Ct. 1911, 80 L.Ed.2d 460 (1984). We have held in our

analysis of the officers' federal qualified immunity that the

officers reasonably believed they had probable cause to proceed

against Hart. Therefore Hart cannot assert a claim for malicious

prosecution against them for their decision to arrest her.

Hart's further assertion, that the officers are liable under

a malicious prosecution theory for placing her on federal hold, and

therefore denying her bail, is similarly unavailing. Bail is

simply the security given by an accused to ensure that she will

appear in court and answer the accusation brought against her.

Tex.Crim. Pro. Ann. Art. 17.01. Recommending the denial of bail
 

14The district court granted Myrick summary judgment on the

merits for Hart's intentional infliction claim, and that ruling is

not on appeal here. Although Motley, Myrick, and Starnes alluded

to a defense of official immunity in their motion for summary

judgment on Hart's intentional infliction claim, the district court

did not rule on the motion and none of the three raises the defense

on appeal. Motley, Myrick, and Starnes did not assert official

immunity defenses to either of the other state law claims, either

before the district court or on appeal. 

55

does not "continue" judicial proceedings; such proceedings persist

regardless of whether the court grants or denies a defendant bail.

Furthermore, we note that the magistrate set bail at $50,000 the

day after the federal hold, and Hart could not post this amount for

about two weeks. Thus, the federal hold cannot even be said to

have prolonged her detention. On this claim she both has failed to

show commencement or continuation of proceedings caused by the

officers' actions, and has failed to show damages. Therefore

O'Brien and Montana are entitled to official immunity for malicious

prosecution as a matter of law.

C

Hart alleges that O'Brien and Montana intentionally inflicted

emotional distress on her.14 Under Texas law, intentional

infliction of emotional distress has four elements: (1) the

defendant acted intentionally or recklessly; (2) the conduct was

extreme and outrageous; (3) the defendant's actions caused the

plaintiff emotional distress; and (4) the emotional distress

suffered by the plaintiff was severe. Mattix-Hill v. Reck, 923

S.W.2d 596, 597 (Tex.1996). A court should find liability for

outrageous conduct "only where the conduct has been so outrageous

in character, and so extreme in degree, as to go beyond all
56

possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community." Twyman v. Twyman,

855 S.W.2d 619, 621 (Tex.1993) (citation and internal quotation

marks omitted). "Liability does not extend to mere insults,

indignities, threats, annoyances, or petty oppressions." Ugalde v.

W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir.1993)

(applying Texas law) (internal quotation marks omitted). Moreover,

to recover damages for this tort, the emotional distress the

defendant inflicts must be unreasonable under the circumstances and

"so severe that no reasonable man could be expected to endure it."

Motsenbocker v. Potts, 863 S.W.2d 126, 132 (Tex.App.1993, no writ).

Hart's allegations that O'Brien and Montana's decisions to

arrest her intentionally inflicted emotional distress do not state

a claim because the warrant commanded them to arrest her. Conduct

that is required or authorized by law cannot be extreme or

outrageous. Reck v. Londow, 926 S.W.2d 589, 593 (Tex.App.1995),

judgm't rev'd in part on other grounds, 923 S.W.2d 596 (Tex.1996).

Therefore Hart fails to state a claim on this count, and the

officers are officially immune from suit for deciding to arrest

Hart. Cantu, 77 F.3d at 810.

Moreover, Hart fails to state a claim against O'Brien and

Montana with regard to the federal hold. The hold lasted only one

day, and Hart remained in detention for two weeks after the hold

was lifted because she could not meet bail, which had been set at

$50,000. Thus, at most, any distress caused by the hold (as

opposed to her arrest or pretrial detention) would have stemmed
57

from her loss of opportunity to post bail a day earlier or,

alternatively, from the possible involvement of federal (as opposed

to state) officials in her case. We determine, as a matter of law,

that such alleged distress is not severe. Thus, O'Brien and

Montana enjoy official immunity from Hart's claim regarding the

federal hold.

Finally, we hold that Hart may not state a claim for

intentional infliction of emotional distress based on her

allegations that O'Brien and Montana arranged for her arrest

without probable cause. To state a claim for intentional

infliction of emotional distress, the plaintiff must show that the

defendant acted intentionally or recklessly. As we have

established, there is no genuine issue suggesting that the officers

did not reasonably believe they had probable cause to seek a

warrant from the magistrate judge, or that they acted unreasonably

in executing the warrant. Therefore, Hart fails to state a claim

that the officers intentionally inflicted emotional distress, and

the officers are officially immune on this score as well. See also

Halbert v. City of Sherman, Tex., 33 F.3d 526, 529 (5th Cir.1994)

(holding that even falsely informing police that someone is using

drugs is not sufficiently outrageous conduct to warrant recovery of

damages for intentional infliction of emotional distress).

Therefore we find that the officers are officially immune from

suit under any theory of intentional infliction of emotional

distress.

VIII
58

This is a complex, multiple-defendant, multiple-theory case.

We briefly summarize the state of the claims for the sake of

clarity. Hart sued the defendants under five theories: two

federal claims that the arrest and search were a violation of her

constitutional rights, and three state claims for false

imprisonment, malicious prosecution, and intentional infliction of

emotional distress. First, as to Hart's federal section 1983

claims: the district court granted summary judgment to Myrick and

Red River County on both federal claims. We have dismissed all the

remaining federal claims, against all defendants, on grounds of

qualified immunity (and absolute immunity for some of Starnes's

actions). Next, as to her state claims, the district court granted

summary judgment to Red River County on all claims, and to Myrick

on the intentional infliction count. In addition, we have held

that O'Brien and Montana are entitled to official immunity for all

three claims.

Therefore, Hart has live causes of action in state law only,

asserting false imprisonment against Motley, Myrick, and Starnes;

asserting malicious prosecution against Motley and Starnes (Hart

did not sue Myrick on this theory); and asserting intentional

infliction against Motley and Starnes.

IX

This case illustrates the difference, as a matter of law,

between simple negligence and recklessness. The officials in this

case certainly made mistakes, but we conclude that there is no

issue of material fact demonstrating that they acted intentionally
59

or recklessly. See Malley, 475 U.S. at 341, 106 S.Ct. at 1096

(Qualified immunity "provides ample protection to all but the

plainly incompetent or those who knowingly violate the law.").

Starnes did not slander Hart, but provided seemingly reliable

(although ultimately erroneous) information from Drug Task Force

files. Even though the evidence connecting Hart to the crime was

thin, the officers reasonably could have believed that they had

enough to establish probable cause. In addition, they did exactly

what they were supposed to do with the information: they took

their evidence to a magistrate judge, who held that they had

probable cause for arrest. The officers conducted searches and

arrests only where they had a valid warrant.

Qualified and official immunities protect police officers in

the "gray area" between absolute certainty on the one hand and

reckless or wanton conduct on the other. In the regular course of

police work, this gray area can cover a wide range of reasonable

conduct. Viewed ex post, it is easy to criticize some of the

officers' actions; however, for purposes of immunity, we must

evaluate their actions given what they knew when they acted. At

the very least, we think that the officers and Starnes did not act

recklessly in this case.

We REVERSE the district court's judgments on absolute immunity

as to Starnes, REVERSE the district court's holdings on qualified

immunity as to all defendants, and REVERSE the district court's

holdings on official immunity as to O'Brien and Montana. We RENDER

summary judgment in favor of O'Brien and Montana on all counts, and
60

in favor of Motley and Starnes on Hart's federal claims.

BENAVIDES, Circuit Judge, concurring in part and dissenting in

part:

I join the portions of the majority's opinion that are not

derived from a finding that the warrant issued for Hart's arrest

and the search of her property was substantively valid. As a

result, I join parts IV and V of the majority's opinion, which

resolve the evidence admissibility and absolute immunity issues

presented in this appeal. Moreover, because Motley was not

involved in the surveillance of Conine's property nor the

preparation of the warrant application, I join the majority's

holding that he is entitled to qualified immunity because of his

reliance on a seemingly facially valid warrant. Further, because

I agree with the majority's finding that Hart failed to show that

the placement of the false federal hold on her criminal complaint

caused her to be detained in violation of the Fourth Amendment and

maliciously prosecuted, I join the discrete portions of its opinion

holding that O'Brien, Montana, and Motley were entitled to summary

judgment on these claims.

I write separately, however, because I cannot agree with the

majority's assertion of jurisdiction over the portions of the

interlocutory appeals of defendants O'Brien, Montana, and Starnes

challenging the district court's determination that Hart's evidence

raised a genuine issue of material fact regarding the validity of

the warrant. This sufficiency of the evidence finding is not

immediately appealable under the collateral order doctrine because

it does not conclusively determine a claim of right that is
 

1Because the standards for immunity under federal and Texas

law are quite similar, I will simply use the term "immunity" to

refer to "qualified immunity" under federal law and "official

immunity" under Texas law. 

61

separable from the Fourth Amendment rights asserted in Hart's

action. See Mitchell v. Forsyth, 472 U.S. 511, 524, 105 S.Ct.

2806, 2814, 86 L.Ed.2d 411 (1985) (quoting Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed.

1528 (1949)). The majority's analysis of the immunity1 claims of

these three defendants, moreover, is entirely predicated on its

initial and extra-jurisdictional finding that O'Brien and Starnes

did not violate Hart's Fourth Amendment rights by knowingly or

recklessly including false statements in the probable cause

affidavit. Because the majority acknowledges that the existence of

immunity for O'Brien, Montana, and Starnes is conditioned on this

finding, I dissent from the portions of its opinion holding that

these three defendants are entitled to immunity as a matter of law.

In her complaint, Hart asserted that O'Brien and Starnes

violated her Fourth Amendment rights, in part because they

intentionally or recklessly included false statements in the

probable cause affidavit submitted in support of the warrant for

her arrest and the search of her residence. After discovery,

O'Brien, Montana, and Starnes moved for summary judgment. They

argued that each of Hart's claims was dependent on a finding that

the warrant was invalid and that she did not produce sufficient

evidence to raise a genuine issue of material fact as to whether

these false statements were intentionally or recklessly included in
62

the affidavit. In addition, they asserted that they were entitled

to immunity. The district court denied these motions and

explicitly found that "the plaintiff has raised a genuine issue of

material fact as to whether these two false statements were

included knowingly or with reckless disregard for their truth and

veracity."

In its statement of jurisdiction, the majority appears to

recognize that this finding may not be reviewed on interlocutory

appeal, for it correctly notes that when a "district court denies

summary judgment on the grounds that material facts exist which a

party may or may not be able to prove at trial, the official must

await final judgment before appealing." Maj. op. at 12; Behrens

v. Pelletier, --- U.S. ----, ----, 116 S.Ct. 834, 842, 133 L.Ed.2d

773 (1996); Johnson v. Jones, 515 U.S. 304, 305, 115 S.Ct. 2151,

2153, 132 L.Ed.2d 238 (1995). A public official who attacks a

plaintiff's ability to prove her case is not raising a qualified

immunity defense, which is "conceptually distinct from the merits

of the plaintiff's claim.' " Jones, 515 U.S. at 314, 115 S.Ct. at

2157 (quoting Mitchell, 472 U.S. at 527, 105 S.Ct. at 2816).

Instead, that official is arguing that "the evidence [cannot]

support a finding that particular conduct occurred," and this

argument "is not truly "separable' from the plaintiff's claim."

Behrens, --- U.S. at ----, 116 S.Ct. at 842. A court of appeals,

therefore, may not review a sufficiency determination on

interlocutory appeal because "there is no "final decision' under

[the collateral order doctrine as defined by] Cohen and Mitchell."
63

Id.; Jones, 515 U.S. at 314, 115 S.Ct. at 2157.

The majority, however, begins its qualified immunity analysis

by "consider[ing] whether O'Brien's sworn statement that Hart lived

in Conine's trailer was knowingly false or reckless," and "whether

Starnes exhibited a reckless disregard for the truth in providing

the [false] information" regarding Hart's marital status. Maj. op.

at 570, 578. Further, after thoroughly reviewing the record below,

the majority disagrees with the district court's view of the

conflicting evidence and concludes that O'Brien and Starnes did not

intentionally or recklessly include the false statements in the

probable cause affidavit. There can be no question that the

majority's finding that the summary judgment evidence fails to

create a genuine issue of material fact is improper and

extra-jurisdictional under the Court's decisions in Johnson and

Behrens.

In order to review immediately the appeals of O'Brien,

Montana, and Starnes insofar as they challenge the district court's

finding of a genuine issue of material fact, the majority appears

to create a new principle of interlocutory jurisdiction. Under

this principle, a court of appeals may exercise interlocutory

jurisdiction over a district court's finding of a genuine issue of

material fact if any of the evidence relating to that finding is

undisputed. Maj. op. at 563 (stating that "enough uncontested

facts exist to determine that [these three defendants] are immune

as a matter of law"), 569-72 (minimizing Hart's favorable evidence

and independently reviewing the "undisputed facts" relating to the
 

2In this case, however, there was no evidence in the probable

cause affidavit, aside from the false statements, linking Hart to

any crime. Thus, O'Brien, Montana, and Starnes cannot argue on

interlocutory appeal that the undisputed facts show that Hart's

Fourth Amendment rights were not violated because the affidavit's

remaining content revealed the existence of probable cause. See

Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667

(1978). Further, the absence of such additional evidence explains

why the majority must find that these false statements were

properly included in the warrant application in order to find that

the conduct of these three defendants was objectively reasonable.

Of course, had the district court been presented with an affidavit

containing both the false statements as well as other undisputed

evidence allegedly providing probable cause, a finding that the

undisputed facts did not establish probable cause nor justify a

64

district court's determination that a genuine issue of material

fact existed regarding O'Brien's mens rea when he included the

false statements in the affidavit), 577-78 (understating Hart's

favorable evidence and independently reviewing the evidence

relating to Starnes' state of mind when he provided O'Brien with

the information about Hart). The majority's indiscriminate

reliance on the existence of undisputed evidence to justify its

exercise of interlocutory jurisdiction, however, violates the

collateral order doctrine.

Under the collateral order doctrine, a defendant may argue on

interlocutory appeal that even if the disputed facts are viewed in

the plaintiff's favor, the remaining undisputed facts demonstrate

that the plaintiff's constitutional rights were not violated or

that the defendant's conduct was objectively reasonable in light of

clearly established law. Behrens, --- U.S. at ----, 116 S.Ct. at

842; Naylor v. Louisiana, 123 F.3d 855, 856 (5th Cir.1997);

Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 531 (5th

Cir.1997).2 This is because the question for interlocutory
reasonable belief in its existence would have been reviewable on

interlocutory appeal. 

65

review—the existence of immunity—is a purely legal question that is

separable from the merits of a plaintiff's claim. Jones, 515 U.S.

at 314, 115 S.Ct. at 2157. The majority, however, relies on the

presence of undisputed facts to justify its interlocutory review of

Hart's compliance with her burden of production, an issue that the

Supreme Court has found to be inextricably intertwined with, rather

than separate from, the merits of her claims. Id. Thus, the

existence of undisputed evidence pertaining to the district court's

finding of a genuine issue of material fact does not transform that

determination into one that is immediately appealable under the

collateral order doctrine.

The majority, moreover, necessarily relies on its

extra-jurisdictional conclusion that the false statements were

properly included in the probable cause affidavit in order to award

O'Brien, Montana, and Starnes immunity on the remainder of Hart's

claims. To begin with, the majority finds that these statements

provided probable cause for the arrest of Hart and the search of

her residence. The presence of probable cause, moreover, disposes

of several of Hart's Fourth Amendment and state law claims.

Further, by including these statements within the probable cause

affidavit, the majority transforms a warrant of questionable

validity into a "facially valid" warrant, maj. op. at 576, 579-80,

that can be relied on by the very people who may have intentionally

or recklessly provided the issuing magistrate with false
 

3This principle of immunity, however, cannot dispose of the

claims against Montana. Montana, like O'Brien, participated in the

surveillance of Conine and Hart that provided the factual basis for

a finding of probable cause. Thus, because there is a factual

dispute as to whether O'Brien, given his knowledge, intentionally

or recklessly included false statements in the probable cause

affidavit, it is an open question whether Montana, who possessed

the same knowledge, could reasonably have relied on the warrant

issued on the basis of this affidavit. 

66

information. This then eliminates Hart's remaining Fourth

Amendment and state law claims.3 Thus, solely by virtue of its

improper exercise of jurisdiction, the majority is able to immunize

O'Brien, Montana, and Starnes with respect to each of Hart's claims

before us on appeal.

For the foregoing reasons, I respectfully DISSENT from the

portions of the majority's opinion holding that O'Brien, Montana,

and Starnes are entitled to qualified immunity as a matter of law.

I would instead dismiss for lack of jurisdiction the portions of

the appeals of these three defendants challenging the district

court's finding that Hart met her burden of production regarding

the validity of the warrant under Franks v. Delaware, 438 U.S. 154,

98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).