# Wheeler v. Searcy Arkansas, City of

> District Court, E.D. Arkansas · October 19, 2020

URL: https://www.frixlaw.com/law-library/cases/10005045

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** October 19, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10005045. Public record. Not legal advice.