Burdette Block v. Adam Dupic

United States Court of Appeals

For the Eighth Circuit

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No. 13-2889

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Burdette Block

lllllllllllllllllllll Plaintiff - Appellant

v.

Adam Dupic

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court

for the District of South Dakota - Sioux Falls

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Submitted: May 13, 2014

Filed: July 15, 2014

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Before BYE, MELLOY, and BENTON, Circuit Judges.

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MELLOY, Circuit Judge.

Police officers briefly restrained a sleeping man while executing a search

warrant during early morning hours. The man, now Plaintiff, sued the officer who

submitted an oral affidavit in support of the warrant. Plaintiff claimed that the

affidavit violated the Fourth Amendment because the officer intentionally or

recklessly omitted material information from it. See Franks v. Delaware, 438 U.S.

154 (1978). The district court1 disagreed, concluded the officer was entitled to

qualified immunity, and granted him summary judgment. Plaintiff appeals those

rulings. We affirm.

I. Background

On March 19, 2009, near midnight, an on-duty patrol officer, Adam Dupic,

attempted to stop a pickup truck for a traffic violation. The truck did not immediately

pull over when Officer Dupic turned on his lights. Officer Dupic pursued the vehicle

until it stopped––only to see the driver flee on foot, leaving a passenger behind. The

passenger told Officer Dupic that the (now fleeing) driver was Leonard "Lenny"

Block. The officer checked the vehicle's registration, which listed Lenny as the

owner and gave his home address.

Officer Dupic then coordinated with other officers to track Lenny down.

Among other things, they surveilled his home. Between 2 and 2:30 a.m., an officer

watching Lenny's home observed a man and a woman approach and enter. They left

after only a few minutes. While exiting, the man turned back and yelled, "See you

later, Lenny." Officer Dupic apprehended the man down the street. The man

admitted that he had said, "See you later, Lenny." Curiously, though, the man told

Officer Dupic that he had done so only to frustrate law enforcement and that, in fact,

Lenny was not inside.

Officer Dupic didn't buy the man's story and sought authority to enter the home

and detain Lenny, so he called a judge to obtain a search warrant issued upon oral

testimony. S.D. Codified Laws § 23A–35–5. In describing to the judge the facts that

Officer Dupic believed created probable cause to search the home, he relayed the

1

The Honorable Karen E. Schreier, United States District Court Judge for the

District of South Dakota.

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above information and specifically mentioned the man who had yelled, "See you later,

Lenny." But, Officer Dupic did not tell the judge that the man later disavowed the

statement's truth or that the man claimed he'd made the comment only as a ruse to

thwart law enforcement objectives. The judge found probable cause existed and

issued a warrant to search Lenny's home. Officer Dupic and others executed the

warrant around 3:30 a.m. the same morning. While executing the warrant, the

officers temporarily restrained Lenny's brother (the plaintiff in this case).

II. Discussion

This court reviews de novo a district court's grant of summary judgment based

on qualified immunity. Smith v. City of Minneapolis, No. 13-1157, 2014 WL

2535298, at *2 (8th Cir. June 6, 2014). Qualified immunity protects public officials

from damage suits if their challenged conduct did not violate clearly established

constitutional rights of which a reasonable person would have known. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). A police officer who applies for a search

warrant receives qualified immunity from § 1983 liability so long as "his conduct was

objectively reasonable." Morris v. Lanpher, 563 F.3d 399, 402 (8th Cir. 2009). "A

warrant based upon an affidavit containing 'deliberate falsehood' or 'reckless

disregard for the truth' violates the Fourth Amendment" and subjects the officer who

submitted the affidavit to § 1983 liability. Bagby v. Brondhaver, 98 F.3d 1096, 1098

(8th Cir. 1996) (quoting Franks, 438 U.S. at 171)).

In this case, Plaintiff argues that Officer Dupic should not receive qualified

immunity because Dupic deliberately or recklessly omitted material information from

his warrant application. "Omissions . . . can vitiate a warrant if [the plaintiff] proves

'first that facts were omitted with the intent to make, or in reckless disregard of

whether they make, the affidavit misleading, and, second, that the affidavit, if

supplemented by the omitted information, could not support a finding of probable

cause.'" United States v. Ketzeback, 358 F.3d 987, 990 (8th Cir. 2004) (quoting

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United States v. Allen, 297 F.3d 790, 795 (8th Cir. 2002)). See Franks, 438 U.S. at

155–56. The "material information" Plaintiff alleges Officer Dupic omitted includes

the following: (1) the man who said "See you later, Lenny" did so only to frustrate

law enforcement; and (2) the man said Lenny was not actually inside the home.

We will assume without deciding that Officer Dupic recklessly disregarded the

misleading effect that omitting these facts would have on the judge's probable cause

determination. See Ketzeback, 358 F.3d at 990 (reasoning that the district court

"implicitly resolved the [intent inquiry] against the government, . . . so we will

assume, arguendo, that the district court properly inferred [the officer's] reckless

disregard of the misleading effect of the omitted information"); see also Hunter v.

Namanny, 219 F.3d 825, 830 (8th Cir. 2000) (noting that recklessness "may be

inferred" where the "information would have been clearly critical to the probable

cause determination"). Even so, Officer Dupic is entitled to qualified immunity if his

affidavit, supplemented by the omitted facts, still supports a probable cause finding.

See Morris, 563 F.3d at 403.2 "Probable cause exists when the warrant affidavit sets

forth facts which would lead a prudent person to believe that there is a fair probability

[the object of the search] will be found in a particular place." Ketzeback, 358 F.3d

2

We reject Plaintiff's invitation to expound on dicta contained in Bagby, 98

F.3d at 1099 n.2, where the court reserved the question of whether "a defendant

whose affidavit contained a deliberate falsehood should be entitled to qualified

immunity if a corrected affidavit would still provide probable cause" and noted that

a "more stringent rule may be appropriate when a liar seeks the benefit of this

defense." Instead, we'll proceed in the same manner as more recent Eighth Circuit

cases. See, e.g., Hunter, 219 F.3d at 829 (noting that even if an affidavit violates the

Fourth Amendment, the submitting officer receives qualified immunity if the affidavit

as reconstructed still provides probable cause to search); Riehm v. Engelking, 538

F.3d 952, 966–67 (8th Cir. 2008) (same). To the extent plaintiff asks us to remand

so a trier of fact may decide whether Officer Dupic deliberately misled the issuing

judge, we find no triable question of fact exists, and we refuse to "infer bad motive

absent even a scintilla of material fact supporting that inference." Morris, 563 F.3d

at 403.

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at 991 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). The inquiry is a

"commonsense, practical" one based on the "totality-of-the-circumstances." Gates,

462 U.S. at 230.

We agree with the district court that the evidence submitted to the judge would

have been sufficient to support a probable cause finding even if Officer Dupic's oral

affidavit had included the omitted facts. The search warrant listed Lenny as the only

person or property to be seized, and Lenny's vehicle registration listed his home

address. Thus, the issue is whether there was a fair probability that Lenny would be

found at his home. There was. Lenny fled his vehicle around midnight, and Officer

Dupic requested a warrant to search for the fleeing misdemeanant at his home around

3 a.m. Officer Dupic could reasonably believe Lenny returned to his residence in the

middle of the night after fleeing his vehicle. See United States v. Powell, 379 F.3d

520, 524 (8th Cir. 2004) (noting that "[i]t was not unreasonable for the officers to

believe that [a defendant] would be at home during the early morning hours" when

the officers chose to execute an arrest warrant). Another officer observed two people

enter Lenny's home around 2 a.m., stay for a few minutes, then exit. On the way out,

one turned back and yelled, "See you later, Lenny," which created the obvious

inference that the suspect was inside. These circumstances, standing alone, supplied

a "fair probability" that Lenny would be at home. Ketzeback, 358 F.3d at 991.

Supplying the omitted facts to a hypothetical, reconstructed warrant does not

change the conclusion. Here, we agree with and adopt the district court's analysis:

[The man's] after-the-fact explanation for his statement

does nothing in terms of eliminating probable cause.

Moreover, it is not unreasonable to think that [the man],

once approached by law enforcement, was being dishonest

about whether Lenny was in his residence and about his

explanation for yelling, "See you later, Lenny." It is likely

that [the man] was attempting to prevent the police from

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finding his acquaintance, or as [the man] stated, attempting

to "frustrate law enforcement." Overall, the court finds that

adding Officer Dupic's omission to form a corrected

affidavit does not change the ultimate conclusion that

probable cause existed to search [Lenny's home].

Adding the man's retractions to the otherwise valid warrant does not render it

constitutionally infirm. We reject Plaintiff's arguments to the contrary.

III. Conclusion

For the above reasons, we affirm the district court.

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