Wheeler v. Searcy Arkansas, City of

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

BRANDON LEE WHEELER *

PLAINTIFF *

*

V. *

* CASE NO. 4:18CV00859 SWW

*

CITY of SEARCY, ARKANSAS, ET *

AL. *

DEFENDANTS *

*

OPINION and ORDER

Plaintiff Brandon Lee Wheeler (“Wheeler”) brings this action under 42

U.S.C. § 1983, charging that his constitutional and state law rights were violated

when he was arrested for capital murder and abuse of a corpse, charges that a

prosecutor eventually dismissed by nolle prosequi. By order entered May 27, 2020

[ECF No. 49-1], the Court granted in part and denied in part Defendants’ first

motion for summary judgment. The claims that remain are individual-capacity

claims against Searcy Police Department officers Mark Kidder (“Kidder”), Adam

Sexton (“Sexton”), and Nick Darnell (“Darnell”), charging that they recklessly or

deliberately provided a misleading affidavit in support of the warrant issued for

Wheeler’s arrest. Before the Court is Defendants’ second motion for summary

judgment [ECF Nos. 62, 63, 64], Wheeler’s response in opposition [ECF Nos. 67,

68, 69], and Defendants’ reply [ECF No. 72]. After careful consideration, and for

reasons that follow, the second motion for summary judgment is denied.

I.

Summary judgment is appropriate when “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). As a prerequisite to summary judgment, a

moving party must demonstrate “an absence of evidence to support the non-

moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once

the moving party has properly supported its motion for summary judgment, the

non-moving party must “do more than simply show there is some metaphysical

doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986)

The non-moving party may not rest on mere allegations or denials of his

pleading but must come forward with ‘specific facts showing a genuine issue for

trial. Id. at 587. “[A] genuine issue of material fact exists if: (1) there is a dispute

of fact; (2) the disputed fact is material to the outcome of the case; and (3) the

dispute is genuine, that is, a reasonable jury could return a verdict for either party.”

RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).

II.

In November 2016, Kidder, Sexton, and Darnell (collectively, “the officers”)

reopened a missing person case regarding Jarrod Green (“Green”), who had

disappeared on September 30, 1994. During the course of the reopened

investigation, the officers consulted prosecuting attorney Rebecca Reed McCoy

(“McCoy”), and she reviewed evidence and information that the officers gathered

as the investigation progressed. Eventually, Sexton prepared an affidavit for

Wheeler’s arrest for capital murder and abuse of a corpse. McCoy reviewed and

approved the affidavit and made corrections and changes, and Sexton signed the

final draft on March 28, 2017. 1

The warrant affidavit disclosed, among other things, that on September 17,

1995, “Witness 1,” a person named Charles Langley (“Langley”), told law

enforcement that in 1994, prior to Green’s disappearance, Wheeler offered him one

thousand dollars to “get rid” of Green. The affidavit further stated that Langley

told officer that after Green's disappearance, Wheeler told him that Green had been

“done away with.” Sexton’s affidavit did not disclose that in March 2000 and

November 2017, Langley recanted his initial statement, explaining that he was

1Defendants provided a copy of the warrant affidavit with their first motion for

summary judgment (ECF No. 19-1, at 48-50), and the Court set forth the entire

affidavit in its May 27, 2020 opinion and order denying in part and granting in part

Defendant’s motion (ECF No. 49, at 5-7).

facing charges in September 1995 and that he made the statement to avoid going to

prison.

The last paragraph of the affidavit stated:

On December 19, 2016, a search warrant was signed by a judge for

property of interest in connection with this case in rural White County

Arkansas. From December 20, 2016 through December 23, 2016[,] the

aforementioned uninhabited property was searched due to evidence

found confirming information obtained from various sources in this

investigation. This information indicated Jarrod Green's body was

disposed of at this location. Certified Cadaver dogs were used

successfully in locating the aforementioned evidence.2

Contrary to the foregoing language, which indicated that Green’s remains had been

recovered, no physical evidence of Green’s remains was ever found.

On April 6, 2017, McCoy and the officers appeared before White County

Circuit Court Judge Robert Edwards, and they presented Sexton’s affidavit. Judge

Edwards issued a warrant for Wheeler’s arrest on charges of capital murder and

abuse of a corpse, and on May 10, 2017, McCoy issued an information charging

Wheeler with those crimes. Thereafter, authorities arrested Wheeler in Ohio, and

he was transported to Arkansas, where he was detained. On June 5, 2017, Wheeler

was released on bail, and on November 9, 2017, McCoy moved to nolle pros the

charges against Wheeler, for the stated reason that “additional is evidence expected

2ECF No. 19-1, at 48.

to be recovered and DNA testing would not be completed with the time frames set

by the Court.”3

On November 16, 2018, Wheeler filed this action, claiming among other

things that the officers violated his Fourth Amendment rights by knowingly or

recklessly omitting material facts from the warrant affidavit.4 Wheeler argued that

the probable cause affidavit presented to Judge Edwards contained two glaring

omissions: (1) that Langley completely recanted his September 17, 1995 statement

and (2) that the December 2017 searches uncovered no evidence of human remains

or physical evidence connected to Green.

Regarding Langley’s recantations, McCoy testifies by affidavit: “I did not

tell . . . Sexton to omit the language that Mr. Langley had recanted his story.”5

McCoy further testifies that after the affidavit was completed, she believed it was

“true, accurate and presented sufficient evidence to meet the probable cause

requirement for issuance of an arrest warrant.”6

3ECF No. 19-1, at 53.

4ECF No. 1, ¶ 89 (“Although an arrest warrant [was issued], the knowingly,

intentionally, or recklessly omission of certain facts in the . . . affidavit was

unlawful and prejudicial to Plaintiff and violated his rights.”).

5ECF No. 21-1, ¶ 11; ECF 64-3, ¶ 11.

6ECF No. 21-1, ¶ 12; ECF 64-3, ¶ 12.

According to Sexton, McCoy told the officers that Langley’s original “1995

statement would be allowed in the affidavit as long as we provided what we

learned in other interviews with him.”7 ECF No. 64-2, ¶ 3. Sexton adds: “All

Searcy Police Department interviews conducted with Charles Langley were

provided to the case file and were thus available through discovery.” Id. Sexton

does not state that he or anyone else informed Judge Edwards that Langley had

twice recanted his original statement implicating Wheeler.8

7Kidder has submitted an affidavit, and his testimony tracks Sexton’s. Kidder

testifies that he and the other officers informed McCoy about Langley’s

recantations and “McCoy stated [that] we should put Langley’s initial statement

into the affidavit as long as the other interviews were included in the case file.”

ECF No. 64-1, ¶ 6.

8The pertinent portion of Sexton’s affidavit reads:

Upon the completion of the affidavit, Prosecutor McCoy asked Mark

Kidder and I to meet her in Judge Robert Edwards chambers.

Prosecutor McCoy said she was taking us along to chambers with her

in case Judge Edwards had any questions regarding the affidavit. While

at the Judge's chambers I remember Judge Edwards offering me a piece

of candy from his candy dish. I remember him looking over the

affidavit and he was recalling meeting the Green family when he was

campaigning in the 1990's. Judge Edwards read over the affidavit and

asked several questions regarding its contents. As Detective Kidder,

Prosecutor McCoy, and I were leaving, Judge Edwards said if we

wanted[,] we could wad the affidavit up and throw it in the trash can,

in a joking manner.

ECF No. 64-2, ¶ 7.

Regarding the last paragraph of the affidavit, which indicated that cadaver

dogs had successfully located physical evidence of Green’s remains, Sexton

testifies that McCoy approved of the wording because “she considered the cadaver

dogs’ indication evidence as we did.”9 It is undisputed that contrary to wording of

the affidavit, the officers knew that the cadaver dogs merely showed an interest in

an area near a deer stand, but the search did not recover physical evidence of a

dead body.

The record is void of evidence regarding any additional information, beyond

the contents of the warrant affidavit, that Judge Edwards received prior to issuing

the arrest warrant. Kidder and Sexton recall the recall that Judge Edwards asked

them questions, but the Court is without any information regarding the content of

the questions and answers.10 McCoy testifies that she and the officers “visited with

. . . Judge Edwards and discussed with him the issue of whether there was probable

cause to issue a bench warrant to arrest . . . Wheeler.”11 McCoy reports: “After

9ECF No. 64-2, ¶ 6.

10ECF No. 64-2, ¶ 7 (Sexton Aff.)(“Judge Edwards read over the affidavit and

asked us several questions regarding its contents.”); ECF No. 64-1, ¶ 14 (Kidder

Aff.)(“We met with Judge Edwards for approximately forty-five minutes, during

which time the Judge questioned Det. Sexton and I about each paragraph of the

affidavit.”).

11ECF No. 21-1, ¶ 13 (McCoy Aff. 1st Mot. Summ. J.); ECF No. 64-3,

¶ 13 (McCoy Aff. 2d Mot. Summ. J.).

reviewing the affidavit, and discussing this matter with Judge Edwards, he issued a

bench warrant charging . . Wheeler with Murder and Abuse of a Corpse.” In

deposition, however, McCoy recalled that Judge Edwards relied solely on the

contents of the affidavit to make a probable cause determination:

Q: Who presented the affidavit to Judge Edwards, these officers?

A: Who handed it to him?

Q: Well, who told him what the contents were and explained why they

thought they had a sufficient basis to proceed?

A: I don’t know that - - I don’t recall any of us making any statements to

the judge. We went in, handed . . . the judge the affidavit, and the

information and warrant. And I think the only thing that was said - -

the only thing I recall being said to the Judge was, “Judge I brought

them in case you had any questions.”

Q: Then he just read it and signed it?

A: He did.

Q: So he didn’t - -

A: I don’t recall him asking any questions of making any

statements.

Q: He relied particularly on the affidavit as presented?

A: Yes.12

12ECF No. 67-1, at 33.

III.

With Defendants’ first motion for summary judgment, they argued that

Wheeler’s arrest was supported by probable cause and that the officers were

entitled to qualified immunity. By order and opinion entered May 27, 2020, the

Court denied the officers’ application for qualified immunity.13

The first prong of the qualified immunity analysis asks whether the facts

show a violation of a constitutional or statutory right. Nord v. Walsh Cty., 757

F.3d 734, 738 (8th Cir. 2014) (citations omitted). Pertinent here, “‘[w]here the

judicial finding of probable cause is based solely on information the officer knew

to be false or would have known was false had he not recklessly disregarded the

truth, not only does the arrest violate the Fourth Amendment, but the officer will

not be entitled to good faith immunity.’” Small v. McCrystal, 708 F.3d 997, 1006–

07 (8th Cir. 2013) (quoting Myers v. Morris, 810 F.2d 1437, 1457 (8th Cir.1987),

abrogated on other grounds by Burns v. Reed, 500 U.S. 478, 111 S. Ct. 1934

(1991)). As stated more fully in the Court’s order and opinion, the undisputed

summary judgment record showed that the officers appeared before Judge Edwards

and sought a warrant based solely on Sexton’s affidavit, knowing that it omitted

facts material to the determination of probable cause. Accordingly, the evidence

13ECF No. 49.

established a Fourth Amendment violation, regardless of whether the officers had

probable cause to arrest Wheeler.14

The second prong of the qualified immunity analysis asks “whether [the

constitutional right in question] was clearly established at the time of the

defendant's alleged misconduct.” Nord, 757 F.3d at 738 (citations omitted). “The

relevant, dispositive inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151,

2156 (2001) (citation omitted). Applying this standard to cases involving false and

misleading warrant affidavits, the Eighth Circuit has held that “qualified immunity

is appropriate if [the] defendant has been accused of submitting a recklessly false

14The Fourth Amendment guarantees that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation.” U.S. CONST. amend IV. “The

Warrant Clause is not merely a probable-cause guarantee. It is a guarantee that a

warrant will not issue unless a neutral and disinterested magistrate independently

decides that probable cause exists.” Rainsberger v. Benner, 913 F.3d 640, 650 (7th

Cir. 2019) (citing Franks v. Delaware, 438 U.S. 154, 164, 98 S. Ct. 2674 (1978)

and Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367 (1948)). The Eighth

Circuit has recognized the difference between an allegation that a plaintiff was

arrested without probable cause and “a similar, but distinct, claim that [the

defendant] violated [the plaintiff’s] fourth amendment rights by submitting a false

and misleading affidavit in support of the warrant for his arrest.” Murray v. Lene,

595 F.3d 868, 872 (8th Cir. 2010) (citing Bagby v. Brondhaver, 98 F.3d 1096,

1097-98 (8th Cir.1996)).

affidavit [,] and . . . a corrected affidavit would still provide probable cause to

arrest or search.” Bagby v. Brondhaver, 98 F.3d 1096, 1099 (8th Cir. 1996).

In this case, after editing out the incomplete and false portions of the warrant

affidavit, the Court found that the remaining affidavit testimony, which did not

establish that Green was dead or that his disappearance was caused by the criminal

act of another person, was insufficient to establish probable cause to arrest Green

for capital murder or abuse of a corpse. Accordingly, the Court declined to grant

summary judgment in the officers’ favor.

IV.

The officers have filed a second motion for summary judgment, citing

Messerschmidt v. Millender, 565 U.S. 535 (2012) for the proposition that McCoy’s

approval of the warrant affidavit entitles them to qualified immunity. In

Messerschmidt, the plaintiffs sued under § 1983, claiming that a search of their

home violated the Fourth Amendment because the underlying warrant was

overbroad.15 Unlike this case, Messerschmidt did not involve a charge that

15Officer Curt Messerschmidt, one of the defendants, drafted the underlying

warrant affidavit and assisted in carrying out the search. In addition to seeking a

search warrant for a sawed-off shotgun involved in the specific crime detailed in

his affidavit, Messerschmidt sought and received a warrant permitting a search for

gang-related materials and a broad category of firearms and firearm-related

material. Messerschmidt v. Millender, 565 U.S. 535, 132 S. Ct. 1235, 1238 (2012).

officers knowingly or recklessly included false or misleading information in an

arrest warrant application. In fact, the Supreme Court specifically noted the

absence of any contention that the warrant affidavit was misleading or omitted

facts. Messerschmidt, 565 U.S. at 546 n.2, 132 S. Ct. at 1244 n.2.

Instead, the question in Messerschmidt was this: Even if the search warrant

were improperly issued, were the defendants entitled to immunity from damages?

The Supreme Court enumerated several reasons why a reasonable officer in the

defendants’ position would have believed that the scope of the warrant was

supported by probable cause, including but not limited to the fact that the officers

had obtained approval of the warrant application. The Court stated:

On top of all this, the fact that the officers sought and obtained approval

of the warrant application from a superior and a deputy district attorney

before submitting it to the Magistrate provides further support for the

conclusion that an officer could reasonably have believed that the scope

of the warrant was supported by probable cause.

Messerschmidt, 565 U.S. at 553, 132 S. Ct. at 1249.

Defendants propose that Messerschmidt “is no different that this case” and

requires the same outcome.16 The Court disagrees. Even if it were permissible for

16Defendants also Nord v. Walsh Cty., 757 F.3d 734 (8th Cir. 2014) for the

proposition that McCoy’s approval of the warrant affidavit makes a difference. In

Nord, deputy sheriff Ron Nord ran for sheriff, challenging the incumbent. The

incumbent sheriff won the race and then terminated Nord for comments he had

made during the campaign. Nord filed suit, asserting a First Amendment

retaliation claim, and the sheriff moved for summary judgment asserting qualified

immunity, which the district court denied. The Eighth Circuit reversed, finding

this Court to go beyond the four corners of the warrant affidavit and consider that

the officers had consulted McCoy and gained her approval,17 it would not alter the

Court’s finding that the officers are not entitled to qualified immunity.

The Eighth Circuit has advised that following legal advice of a city attorney,

or in this case a prosecuting attorney, “does not automatically cloak one with

qualified immunity, but rather, is used to show the reasonableness of the action

taken. E-Z Mart Stores, Inc. v. Kirksey, 885 F.2d 476, 478 (8th Cir. 1989) (citing

Wentz v. Klecker, 721 F.2d 244, 247 (8th Cir.1983)). In support of their assertion

of qualified immunity, Sexton and Kidder recall inculpatory information that they

obtained during their investigation, which they did not include in the warrant

affidavit.18 But the pertinent legal question that the officers faced when they

that the sheriff could have reasonably believed that Nord’s statements were

unprotected based on several factors, including that a county attorney advised that

the sheriff was within her authority to terminate Nord. Like Messerschmidt, Nord

did not involve a claim that officers obtained a warrant based on a misleading

affidavit.

17The Eighth Circuit has yet to resolve whether an officer who gives recklessly

false testimony in support of a warrant could still be entitled to qualified immunity

even if his corrected testimony failed to establish probable cause. See Bagby v.

Brondhaver, 98 F.3d 1096, 1099 (8th Cir. 1996)(“We have doubts about the

converse statement in Soares—that defendant is never entitled to qualified

immunity if the corrected affidavit is insufficient—because that rule may in some

cases fail to serve the qualified immunity purpose of sparing all but the plainly

incompetent from § 1983 damage liability.”).

18For example, Kidder testifies that when the officers re-interviewed Langley and

recanted his original statement, the results of a computer voice stress analysis

applied for an arrest warrant was not whether extra-affidavit information bolstered

a finding of probable cause. Rainsberger v. Benner, 913 F.3d 640, 651 (7th Cir.

2019) (“And the Fourth Amendment is violated when the magistrate's probable-

cause determination is made based on an affidavit that fails to establish probable

cause, no matter what extra-affidavit information the officer had.”). Instead, the

question that confronted the officers was whether the Fourth Amendment

permitted them to make false or misleading statements in an affidavit. There is no

question that submitting a false and misleading affidavit in support of an arrest

warrant violates clearly established law, and based on the undisputed evidence in

this case, the information omitted from the affidavit made a difference and was

material to the question of probable cause. Under these circumstances, even with

McCoy’s stamp of approval, no well-trained officer in defendants’ position could

reasonably but mistakenly conclude that it was lawful to omit information about

Langley’s recantations and the lack of physical evidence.

(CVSA) test indicated voice stressors, and the officers believed that he was not

being truthful. ECF No. 64-1, ¶ 4. Additionally, Sexton testifies that a retired

officer informed him that during the original missing person investigation in 1994

and 1995, an informant told him that Green’s body had been buried under an old

deer stand on certain property. Sexton further testifies that the cadaver dogs

searched the property and showed interest on a spot under an old deer stand. ECF

No. 64-2, ¶¶ 4-5.

V.

For the reasons stated, Defendants’ second motion for summary judgment

[ECF No. 62] is denied.

IT IS SO ORDERED THIS 19TH DAY OF OCTOBER, 2020.

/s/Susan Webber Wright

UNITED STATES DISTRICT JUDGE