Miller v. Prince George's County

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DANIEL ANTHONY MILLER, 

Plaintiff-Appellant,

v.

PRINCE GEORGE’S COUNTY,  No. 05-2250

MARYLAND, A Body Corporate and

Politic; JOHN L. DOUGANS,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Roger W. Titus, District Judge.

(CA-05-292-RWT)

Argued: October 26, 2006

Decided: January 22, 2007

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Affirmed in part and reversed in part by published opinion. Judge

Motz wrote the opinion, in which Judge Michael and Judge King

joined.

COUNSEL

ARGUED: Terrell N. Roberts, III, ROBERTS & WOOD, Riverdale,

Maryland, for Appellant. Rajeshanand Kumar, OFFICE OF LAW

FOR PRINCE GEORGE’S COUNTY, Upper Marlboro, Maryland,

for Appellees.

2 MILLER v. PRINCE GEORGE’S COUNTY

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Daniel Anthony Miller, an African-American male, brings this civil

rights action against Prince George’s County, Maryland, and one of

its police officers, Detective John L. Dougans. Miller alleges that Det.

Dougans violated the Fourth Amendment by deliberately or recklessly

making material false statements and omissions on a warrant affida-

vit, ultimately resulting in Miller’s arrest without probable cause and

imprisonment for an offense Miller never committed. The district

court granted summary judgment to the County and Det. Dougans.

For the reasons herein, we affirm in part and reverse in part.

I.

On July 23, 2002, Jeffrey and Jessica Nichols reported the theft of

their lawnmower to the Prince George’s County Police Department,

which assigned Det. Dougans to investigate the case.1

Two days later, Det. Dougans began his investigation. He inter-

viewed and obtained a statement from the victim, Mrs. Nichols. She

told the detective that her neighbor, Michael Moses, reported seeing

a green Jeep with light wood paneling in the neighborhood at about

1:30 a.m. in the early morning of July 23, just hours before the theft

was discovered. This vehicle contained two individuals — "a skinny

white guy and a girl." The Jeep, accompanied by a gold truck, circled

the area about fifteen times. During the last lap, one of the vehicles

pulled a wooden trailer containing what Moses later surmised was the

stolen lawnmower. Based upon this information, Mrs. Nichols sus-

pected that the thief was Daniel Miller, a young white man whom she

had heard was on a stealing spree and she knew owned a green Jeep

with light wood paneling. Mrs. Nichols believed that her lawnmower

might be located at 9004 Woodyard Road in Clinton, Maryland,

where Daniel sometimes stayed with his sister, Megan, and her boy-

friend, Robert Frederick Owens. Mrs. Nichols told Det. Dougans that

1

As we must, in reviewing this grant of summary judgment, we con-

sider the facts in the light most favorable to the non-moving party, here

Miller. See Saucier v. Katz, 533 U.S. 194, 201 (2001).

MILLER v. PRINCE GEORGE’S COUNTY 3

she had reported all of this information to the police shortly after the

theft. As a result, the police had recovered the stolen lawnmower

from the house at 9004 Woodyard Road on the same day as the theft,

but had made no arrests.

A week after speaking with Mrs. Nichols, Det. Dougans inter-

viewed Megan Miller and Owens. In a written statement Megan

denied all knowledge of the lawnmower. The 17-year-old Megan did

tell Det. Dougans that she had a brother, Daniel, who was "a little

older" than she. Megan’s boyfriend, Owens, similarly denied any

involvement in the theft; he maintained that the police had found the

lawnmower at his house because he had purchased it from a "crack-

head" who delivered it to him. Although Mrs. Nichols had identified

a young white Daniel Miller as a suspect in the theft, Det. Dougans

did not ask Megan or Owens where Megan’s young white brother,

Daniel, could be located.

On August 13, Det. Dougans conducted his final interview, obtain-

ing a statement from the Nichols’s neighbor, Michael Moses, in

which Moses echoed the information about the "skinny white male"

he had seen, who was "no older than 25" years old. In his statement,

Moses also noted that he "wrote down the [license plate] tag [num-

ber]" of the Jeep on the night of the theft.2 When asked about this at

deposition, Moses testified that, in fact, he did not remember writing

down a license plate tag number, but if he had, he would have given

it to Mr. and Mrs. Nichols when the theft was discovered rather than

keeping it for more than two weeks until Det. Dougans came around

to investigate.

Det. Dougans also conducted three types of computer searches to

investigate the theft. First, he searched the local criminal database

using the name "Miller" or "Daniel Miller." This query produced the

records for several Daniel Millers, including the Plaintiff. Plaintiff’s

2

Moses’s police statement does not, however, contain a tag number.

Det. Dougans acknowledged that he had erred in not having Moses

include the tag number in the statement, but insisted that Moses gave him

a slip of paper on which the tag number was written, and that Det. Dou-

gans had placed that slip of paper in the case file. However, when exam-

ined, the case file contained no slip of paper of any sort.

4 MILLER v. PRINCE GEORGE’S COUNTY

record correctly set forth his height, weight, his 8/29/67 birthdate

(meaning he was almost 35 at the time of the theft), and his driver’s

license number, M460135067673; the record also incorrectly noted

his race as white. Det. Dougans then used Plaintiff’s driver’s license

number, M460135067673, to search the state motor vehicle database.

That search again retrieved Plaintiff’s height, weight, and 8/29/67

birthdate, but correctly noted his race as black.

The retrieved record additionally stated that Plaintiff had no current

license plate tag, but had once owned a Jeep, and three years earlier

— in 1999 — had turned in the expired license plate tag (938751M)

for the Jeep to the Maryland Motor Vehicle Administration (MVA).

(Plaintiff submitted unrebutted evidence that tags turned in to the

MVA are retained in a locked cabinet until destroyed.) Det. Dougans

did not initiate any computer search using Plaintiff’s expired tag num-

ber (938751M), and thus established no link between this tag number

and the purported getaway car or the white suspect. Moreover, Det.

Dougans searched the state criminal database for a white Daniel Mil-

ler with Plaintiff’s 8/29/67 date of birth and did not retrieve a match.

Apparently no further investigative activity of any kind took place.

Nevertheless, five months later on January 22, 2003, Det. Dougans

filed an affidavit in support of an application for charges against a

Daniel Anthony Miller, identifying him as a white male with Plain-

tiff’s birthdate, height, weight, and driver’s license number; the affi-

davit also linked the expired vehicle tag (938751M) once belonging

to Plaintiff to the white suspect’s getaway car. In his affidavit, Det.

Dougans set forth the following as the basis for his probable cause to

believe that the subject of the warrant stole the lawnmower and thus

committed theft and second-degree burglary:

During the victim’s [Mrs. Nichols’s] inquiry, they [sic]

learned from witness Michael MOSES that a green Chero-

kee, driven by a white male had been observed by the wit-

ness MOSES pulling out of the victim’s residence with a

wooden trailer attached to the mentioned green Cherokee

haling [sic] the victim’s Griffin Lawnmower away. The wit-

ness Moses recorded the tag of the vehicle as Maryland

938751M. The investigation into the mentioned tag3

3

Det. Dougans similarly stated in deposition that he had obtained the

information about Plaintiff by initiating a computer search using a motor

MILLER v. PRINCE GEORGE’S COUNTY 5

revealed they [sic] had allegedly been turned into MVA and

expired 3/99. The identity of the defendant MILLER was

obtained interviewing the victims and witness. . . . The Co-

Defendant Owens is the boy-friend of the Defendant Miller

[sic] sister, whom [sic] is a juvenile (17-years old). The jeep

[sic] Cherokee is the property of Defendant Miller, witness

advised it was the same vehicle seen by him driving out of

the driveway of victim Nichols [sic] residence. This Detec-

tive has attepted [sic] to make contact with Defendant Mil-

ler, but as of this date has been unable, due to Defendant

staying at several different addresses throughout the county.

Based on this affidavit, the magistrate issued a warrant on the same

day. There is no evidence that Det. Dougans ever attempted to serve

the warrant on a Daniel Miller or otherwise attempted to find a Daniel

Miller.

On May 29, 2004, Virginia State Trooper Rodney Ward stopped

Plaintiff because his vehicle lacked a front tag. During a routine

Department of Motor Vehicles check, Trooper Ward discovered the

outstanding Maryland warrant for theft and second-degree burglary

and took Plaintiff into custody. The warrant issued pursuant to Det.

Dougans’s affidavit thus caused the trooper to arrest the 37-year-old

African-American Plaintiff for a crime Det. Dougans indisputably

believed had been committed by a much younger white man.

vehicle tag number 938751M, assertedly given to him by Michael

Moses. But Sergeant Duane Lee, a twenty-five year veteran officer

employed by the records section of the state police, testified without con-

tradiction that the computer records simply did not support Det. Dou-

gans’s testimony. Subpoenaed to produce all computer records relating

to this investigation during the relevant time frame, Sgt. Lee undertook

a comprehensive system search. He testified unequivocally that he found

no evidence that any database had ever been searched using the tag num-

ber 938751M, contrary to Det. Dougans’s testimony that he had used this

number to initiate the computer search after obtaining it from Moses.

Sgt. Lee opined that Det. Dougans, in fact, had obtained the tag number

in the manner set forth in text above, i.e. only as part of the records for

a black male.

6 MILLER v. PRINCE GEORGE’S COUNTY

While the warrant specified that the wanted individual was a white

male, Trooper Ward testified that because the date of birth, hair and

eye color, weight, height and full name of the individual wanted in

Maryland matched the individual he had just stopped, he believed that

he had arrested the suspect described in the warrant. The only infor-

mation that did not match was the suspect’s reported race. Plaintiff

was held in prison in Virginia for a total of nineteen days on the war-

rant that Det. Dougans had obtained. On June 17, 2004, police cleared

him of the charges and released him.

In February of 2005, Plaintiff initiated this action under 42 U.S.C.

§ 1983 and Maryland law, bringing constitutional and common law

claims against Det. Dougans, and common law claims against the

County. The district court concluded that Det. Dougans’s actions did

not violate Plaintiff’s federal or state constitutional rights and that,

even if they did, Det. Dougans was entitled to qualified immunity

with respect to the federal constitutional claims. The court further

held that Plaintiff’s state law false arrest claims against Det. Dougans

and the County failed because Det. Dougans was not the arresting

officer, and that his malicious prosecution claims failed because Det.

Dougans’s affidavit provided probable cause for issuance of the arrest

warrant. Accordingly, the court granted summary judgment to Det.

Dougans and the County on all counts. Plaintiff timely appealed.

II.

When a law enforcement officer asserts that qualified immunity

protects him from liability for a federal constitutional violation, as

Det. Dougans does here, a court must consider two questions. First,

we must determine, "[t]aken in the light most favorable to the party

asserting the injury, do the facts alleged show the officer’s conduct

violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201

(2001). Only if the answer is "yes" do we advance to "the next,

sequential step," which is "to ask whether the right asserted was

clearly established" at the time of the events at issue. Id. We conduct

this latter inquiry by determining whether a reasonable officer would

have understood that his conduct violated the asserted right. Id. at

202. "[T]he answer to both Saucier questions must be in the affirma-

tive in order for a plaintiff to defeat a defendant police officer’s

MILLER v. PRINCE GEORGE’S COUNTY 7

motion for summary judgment on qualified immunity grounds." Clem

v. Corbeau, 284 F.3d 543, 549 (4th Cir. 2002).

A.

We turn first to the initial Saucier question: whether, taking the

facts "in the light most favorable" to Plaintiff Miller, "the facts

alleged show" that Det. Dougans’s "conduct violated a constitutional

right." Saucier, 533 U.S. at 201.

Plaintiff maintains that the facts outlined above, considered in the

light most favorable to him, allege a claim that he was seized without

probable cause in violation of his Fourth Amendment rights. Unques-

tionably, "[t]he Fourth Amendment prohibits law enforcement offi-

cers from making unreasonable seizures, and seizure of an individual

effected without probable cause is unreasonable." Brooks v. City of

Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996); see Malley v.

Briggs, 475 U.S. 335 (1986); Franks v. Delaware, 438 U.S. 154

(1978). Plaintiff acknowledges that he was arrested pursuant to a war-

rant, but claims that the warrant was not supported by probable cause.

A plaintiff’s allegations that police seized him "pursuant to legal pro-

cess that was not supported by probable cause and that the criminal

proceedings terminated in his favor are sufficient to state a . . . claim

alleging a seizure that was violative of the Fourth Amendment."

Brooks, 85 F.3d at 183-84.

Plaintiff Miller alleges here that his seizure was unreasonable

because it followed from a warrant affidavit that was deficient

because it was dishonest. To succeed on his claim, Plaintiff must

prove that Det. Dougans deliberately or with a "reckless disregard for

the truth" made material false statements in his affidavit, Franks, 438

U.S. at 171, or omitted from that affidavit "material facts with the

intent to make, or with reckless disregard of whether they thereby

made, the affidavit misleading." United States v. Colkley, 899 F.2d

297, 300 (4th Cir. 1990) (internal quotation marks omitted).

"Reckless disregard" can be established by evidence that an officer

acted "with a high degree of awareness of [a statement’s] probable

falsity," that is, "when viewing all the evidence, the affiant must have

entertained serious doubts as to the truth of his statements or had

8 MILLER v. PRINCE GEORGE’S COUNTY

obvious reasons to doubt the accuracy of the information he

reported." Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000)(internal

quotation marks omitted); see also, Forest v. Pawtucket Police Dept.,

377 F.3d 52, 58 (1st Cir. 2004); United States v. Clapp, 46 F.3d 795,

801 n.6 (8th Cir. 1995). With respect to omissions, "reckless disre-

gard" can be established by evidence that a police officer "failed to

inform the judicial officer of facts [he] knew would negate probable

cause." Beauchamp v. City of Noblesville, Inc., 320 F.3d 733, 743

(7th Cir. 2003); see also Wilson, 212 F.3d at 788; United States v.

Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993). A plaintiff’s "allega-

tions of negligence or innocent mistake" by a police officer will not

provide a basis for a constitutional violation. Franks, 438 U.S. at 171.

Moreover, in order to violate the Constitution, the false statements

or omissions must be "material," that is, "necessary to the [neutral and

disinterested magistrate’s] finding of probable cause." Id. at 155-56.

To determine materiality, a court must "excise the offending inaccura-

cies and insert the facts recklessly omitted, and then determine

whether or not the ‘corrected’ warrant affidavit would establish prob-

able cause." Wilson, 212 F.3d at 789; see also Pierce v. Gilchrist, 359

F.3d 1279, 1293 (10th Cir. 2004). If the "corrected" warrant affidavit

establishes probable cause, no civil liability lies against the officer.

Plaintiff Miller maintains that in the arrest affidavit Det. Dougans

intentionally listed Plaintiff’s birthdate, height, weight, driver’s

license number and vehicle tag number as those of a white man sus-

pected of committing the burglary, when Det. Dougans knew (or

recklessly disregarded the fact) that this information identified the

Plaintiff, an African-American man never suspected of committing

the burglary. Plaintiff also asserts that Det. Dougans, intentionally or

with reckless disregard for the truth, omitted from his affidavit the

source of the information about Plaintiff’s birthdate, height, weight,

and driver’s license number — never stating that all of this informa-

tion was obtained from the computer records of an African-American,

who could not be the white suspect.

Moreover, Plaintiff asserts that in his affidavit Det. Dougans delib-

erately, or with reckless disregard for the truth, misrepresented infor-

mation about Plaintiff’s license plate tag number by stating that an

eyewitness to the burglary supplied the number as that of the getaway

MILLER v. PRINCE GEORGE’S COUNTY 9

car driven by the white suspect, when actually Det. Dougans had

obtained the tag number from the computer records of the African-

American Plaintiff and had established no link between that number

and the getaway car or the white suspect. Further, Plaintiff maintains

that Det. Dougans deliberately, or with reckless disregard for the

truth, omitted from the warrant affidavit the fact that he had searched

the state criminal database for a white male with Plaintiff’s birthdate

and retrieved no match. Plaintiff contends that these misrepresenta-

tions and omissions were material; that is, a corrected affidavit — one

without the misrepresentations and including the omissions — would

not have provided probable cause to arrest him.

In support of his claim of qualified immunity, Det. Dougans does

not argue that these misrepresentations and omissions are immaterial.

Nor does he contend that, if deliberately or recklessly made, they

would not violate Plaintiff’s constitutional rights. Instead, Det. Dou-

gans offers several singularly unpersuasive theories as to why we

should nonetheless hold that the facts Plaintiff has alleged fail to

assert the violation of a constitutional right.

First, and principally, Det. Dougans simply disputes the facts, argu-

ing that Plaintiff’s account of the facts is incorrect. The detective

stoutly maintains that he did not "present [ ] false statements in his

affidavit." Brief of Appellee at 6. For example, Det. Dougans claims

that, as he stated in his affidavit, he did conduct a computer search

using the license plate tag number that eyewitness Michael Moses

told him was on the getaway car, despite the fact that Sgt. Lee testi-

fied that no record of such a computer search exists. Perhaps Det.

Dougans may ultimately persuade a factfinder, but this argument can-

not prevail on summary judgment, for at this stage we do not find

facts. Rather, with respect to any factual dispute, we must take the

facts in the "light most favorable to the party asserting the injury," i.e.

Plaintiff. Saucier, 533 U.S. at 201.

In connection with his argument about the facts, Det. Dougans fur-

ther contends that Plaintiff has offered no evidentiary support for his

allegations and that Plaintiff’s "entire argument is based upon mis-

characterizations and conjecture." Brief of Appellee at 6. These words

better describe Det. Dougans’s account of the facts than Plaintiff’s.

For, in support of his claim, Plaintiff offers powerful evidence making

10 MILLER v. PRINCE GEORGE’S COUNTY

a "substantial preliminary showing" of a constitutional violation. See

Franks, 438 U.S. at 155. Plaintiff proffers the testimony of Sgt.

Duane Lee, a police officer with twenty-five years of experience, who

is still employed by the Maryland State Police. After a thorough

investigation of law enforcement computer records, Sgt. Lee con-

cluded that Det. Dougans had obtained the identifying information

listed on the warrant affidavit in connection with the records of a

black man, not a white man; that the error as to race that occurred in

Det. Dougans’s initial computer search was corrected in his subse-

quent searches; that no link was ever established between Plaintiff’s

vehicle tag number and the purported getaway car or the white sus-

pect; and that a computer search of the state criminal database for a

white Daniel Miller with Plaintiff’s 8/27/67 birthdate retrieved no

match.

Not only is this evidence powerful, to date it is both undisputed and

corroborated. On one hand, Det. Dougans, apart from his own self-

serving testimony, has proffered no expert opinion or other evidence

to rebut it. On the other, Plaintiff points to corroborating evidence,

including the absence of any vehicle tag number in Det. Dougans’s

police file and eyewitness Moses’s deposition testimony that he did

not remember writing down the getaway car tag number but, if he had

done so, he would have given it to the victims on the day of the theft,

rather than to Det. Dougans two weeks later.

Taking this evidence in the light most favorable to Plaintiff, a rea-

sonable jury could certainly conclude that the affidavit submitted by

Det. Dougans contained misrepresentations and omissions made

deliberately or with reckless disregard for "whether they thereby

made[ ] the affidavit misleading." Colkley, 899 F.2d at 300 (internal

quotation marks omitted); see also Franks, 438 U.S. at 164. Addition-

ally, the evidence in the light most favorable to Plaintiff would sup-

port a finding that Det. Dougans "when viewing all the evidence . . .

must have entertained serious doubts as to . . . the accuracy of the

information he reported." Wilson, 212 F.3d at 788 (internal quotation

marks omitted). Furthermore, the misrepresentations and omissions

are material; an affidavit containing the omitted material and stripped

of all misrepresentations would have asked the magistrate to issue a

warrant for the arrest of a white suspect, named Daniel Miller, and

would have omitted all information pertaining to Plaintiff. The "cor-

MILLER v. PRINCE GEORGE’S COUNTY 11

rected" affidavit would not have provided probable cause, "in light of

all the evidence," to arrest Plaintiff. Pierce v. Gilchrist, 359 F.3d

1279, 1293 (10th Cir. 2004). Nor would a warrant, stripped of this

identifying information, have been executed against Plaintiff.

In addition to disputing the facts, Det. Dougans unconvincingly

argues that because he subjectively intended that a white suspect be

seized rather than the African-American Plaintiff, he did not violate

Plaintiff’s Fourth Amendment rights. His argument is foreclosed by

the very cases on which he relies. See Brower v. County of Inyo, 489

U.S. 593 (1989); Rucker v. Harford County, 946 F.2d 278 (4th Cir.

1991). In Brower, the Supreme Court carefully explained that "[a] sei-

zure occurs even when an unintended person or thing is the object of

the detention or taking" so long as the detention is "willful," meaning

"a governmental termination of freedom of movement through means

intentionally applied." Brower, 489 U.S. at 596-97. The fact that the

seized individual is mistakenly thought to be another does not mean

that the innocent individual has not been seized. Indeed, as we held

in Rucker, "a fourth amendment seizure may occur notwithstanding

that the person restrained was mistakenly thought to be another,

because he nevertheless is the intended object of the specific act of

physical restraint." 946 F.2d at 281.

Nor, contrary to Det. Dougans’s contentions, does the fact that he

was not the arresting officer eliminate his responsibility for the natu-

ral consequences of his use of intentionally or recklessly false mate-

rial misstatements and omissions to obtain the arrest warrant. As the

First Circuit explained in recently rejecting a similar argument, "a

police defendant who acts intentionally or with reckless disregard for

the truth may not insulate himself from liability through the objec-

tively reasonable conduct of other officers." Burke v. Town of Wal-

pole, 405 F.3d 66, 86 (1st Cir. 2005). That Trooper Ward actually

arrested Plaintiff does not free Det. Dougans from constitutional

responsibility for Det. Dougans’s own acts. See id. Just as a police

officer cannot "obtain a warrant on the basis of a ‘bare bones’ affida-

vit" and then shield himself from liability by relying on the fact that

the officers who execute the warrant are "ignorant of the circum-

stances under which the warrant was obtained," see United States v.

Leon, 468 U.S. 897, 923 n.24 (1984), Det. Dougans cannot falsely

obtain a warrant without probable cause and then shield himself from

12 MILLER v. PRINCE GEORGE’S COUNTY

liability by relying on the fact that Trooper Ward, who executed the

warrant, was ignorant "of the circumstances under which the warrant

was obtained."

We recognize, of course, that "[n]ot every mix-up in issuance of an

arrest warrant . . . automatically constitutes a constitutional violation

for which a remedy may be sought." Thompson v. Prince William

County, 753 F.2d 363 (4th Cir. 1985).4 It is also plain that an officer

is not required to "exhaust every potentially exculpatory lead or

resolve every doubt about a suspect’s guilt before probable cause is

established." Torchinsky v. Siwinski, 942 F.2d 257, 264 (4th Cir.

1991). However, the Supreme Court has made equally clear that

police officers cannot intentionally lie in warrant affidavits, or reck-

lessly include or exclude material information known to them. See

Malley, 475 U.S. at 344-45; Leon, 468 U.S. at 922-23; Franks, 438

U.S. at 155-56. An investigation need not be perfect, but an officer

who intentionally or recklessly puts lies before a magistrate, or hides

facts from him, violates the Constitution unless the untainted facts

themselves provide probable cause. Here, they did not.

Of course, jurors may ultimately choose not to credit Plaintiff’s

evidence, but he has satisfied the first element of the Saucier analysis

— proffering evidence of the violation of his constitutional right

under the Fourth Amendment to be free from seizure without proba-

ble cause.5

4

Det. Dougans attempts to rely on Thompson and other mistaken iden-

tity cases in which courts have found police officers did not violate the

Constitution. These cases, however, do not aid Det. Dougans, for they all

involve police officers who reasonably mistake an innocent party for the

suspect sought in either applying for or executing a properly obtained

warrant. None involve allegations, like those here, of an officer who

makes deliberately or recklessly false material misrepresentations or

omissions to obtain a warrant, for which there would otherwise be no

probable cause.

5

As the parties agree, Plaintiff’s state constitutional claims under Arti-

cles 24 and 26 of the Maryland Declaration of Rights are construed in

pari materia to his Fourth Amendment claim. See Pickett v. Sears, Roe-

buck & Co., 775 A.2d 1218, 1224 (Md. 2001). Moreover, Maryland rec-

ognizes no immunity for officials committing state constitutional

MILLER v. PRINCE GEORGE’S COUNTY 13

B.

Accordingly, we turn to the second element of Saucier — whether

the violated right was clearly established at the time of the events in

question. If the right was not clearly established, Det. Dougans still

enjoys qualified immunity from liability on this claim.

Qualified immunity "operates ‘to ensure that before they are sub-

jected to suit, officers are on notice their conduct is unlawful.’" Hope

v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Saucier, 533 U.S. at

206). For a constitutional right to be clearly established, "its contours

must be sufficiently clear that a reasonable official would understand

that what he is doing violates that right." Id. (internal quotation marks

omitted). The "salient question" is whether "the state of the law" at

the time of the asserted constitutional violation gave Det. Dougans

"fair warning" that his alleged conduct was unconstitutional. Id. at

741. Although earlier cases involving "fundamentally similar" or

"materially similar" facts are "not necessary to such finding," id., in

the case at hand, prior case law with "fundamentally similar" facts is

abundant.

violations. See DiPino v. Davis, 729 A.2d 354, 371 (Md. 1999). There-

fore, our holding that Plaintiff has proffered evidence of a violation of

his Fourth Amendment rights requires that we reverse the grant of sum-

mary judgment to Det. Dougans on Plaintiff’s state constitutional claims.

Moreover, since our holding as to Plaintiff’s constitutional claims rests

on a conclusion that Det. Dougans’s affidavit would not (stripped of

material false statements and omissions) establish probable cause, we

must also reverse the grant of summary judgment to Det. Dougans and

the County on Plaintiff’s malicious prosecution claims. See Exxon Corp.

v. Kelly, 381 A.2d 1146, 1149 (Md. 1978); see also DiPino, 729 A.2d

at 374 (noting malice element of tort may be inferred from a lack of

probable cause). However, as the district court held, under Maryland law

a false arrest claim will not lie against one wrongfully obtaining a war-

rant when that individual is not the detaining officer and the detaining

officer arrests pursuant to a facially valid warrant. Montgomery Ward v.

Wilson, 664 A.2d 916, 927 (Md. 1995); see also Lewin v. Uzuber, 4 A.

285, 289 (Md. 1886). Thus, we affirm the district court’s grant of sum-

mary judgment to Det. Dougans and the County on Plaintiff’s state law

false arrest claim.

14 MILLER v. PRINCE GEORGE’S COUNTY

As explained above, the Supreme Court has long held that a police

officer violates the Fourth Amendment if, in order to obtain a warrant,

he deliberately or "with reckless disregard for the truth" makes mate-

rial false statements or omits material facts. Franks, 438 U.S. at 155;

See also, e.g., Leon, 468 U.S. at 922-23 & n.23; Franks, 438 U.S. at

164-65. We and our sister circuits have frequently applied this man-

date. See, e.g., Colkley, 899 F.2d at 301; Burke, 405 F.3d at 81-82;

Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th Cir. 2003); Olson v.

Tyler, 771 F.2d 277, 281 (7th Cir. 1985).

Det. Dougans does not contend to the contrary. But, although his

argument is not entirely clear, Det. Dougans nevertheless seems to

claim entitlement to qualified immunity on the theory that the magis-

trate found that his affidavit provided probable cause to issue the war-

rant. Twenty years ago in Malley, however, the Supreme Court

rejected such a contention. Malley holds that qualified immunity does

not protect an officer who seeks a warrant on the basis of an affidavit

that a reasonably well-trained officer would have known failed to

demonstrate probable cause — even if the magistrate erroneously

issues the warrant. See Malley, 475 U.S. at 345 (holding that in such

circumstances a magistrate’s finding of probable cause and issuance

of the arrest warrant does not shield an officer from damages liabil-

ity). A magistrate’s issuance of the warrant will not shield an officer

when the warrant affidavit is "so lacking in indicia of probable cause

as to render official belief in its existence unreasonable," id., nor will

it shield an officer when the underlying affidavit includes deliberate

and reckless misstatements and omissions, as here, see Burke, 405

F.3d at 82. As we explained in Brooks, "the judicial determination of

probable cause does not ‘break[ ] the causal chain between the appli-

cation for the warrant and the improvident arrest’ if the officer who

sought the warrant did not possess probable cause." 85 F.3d at 184 n.7

(quoting Malley, 475 U.S. at 344 n.7).

The law was unquestionably clearly established at the time of the

events at issue here. Det. Dougans had "fair warning," Hope, 536 U.S.

at 741, that the Constitution did not permit a police officer deliber-

ately, or with reckless disregard for the truth, to make material mis-

representations or omissions to seek a warrant that would otherwise

be without probable cause. No reasonable police officer in Det. Dou-

gans’s position could believe that the Fourth Amendment permitted

MILLER v. PRINCE GEORGE’S COUNTY 15

such conduct. As we explained a decade ago, "a reasonable officer

cannot believe a warrant is supported by probable cause if the magis-

trate is misled by statements that the officer knows or should know

are false." Smith v. Reddy, 101 F.3d 351, 355 (4th Cir. 1996). Indeed,

our sister circuits have also followed Franks, Leon, and Malley, and

expressly held that the right asserted by Plaintiff here is "clearly

established." See, e.g., Burke, 405 F.3d at 88 (noting that the "prohibi-

tion on material omissions" in warrant applications is "clearly estab-

lished"); Holmes, 321 F.3d at 1084 (holding, as of 1998, that it was

clearly established law that "the Constitution prohibits a police officer

from knowingly making false statements in an arrest affidavit about

the probable cause for an arrest." (internal quotations marks omit-

ted)); Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283,

1295 (9th Cir. 1999) ("We begin with the precept that a police officer

who recklessly or knowingly includes false material information in,

or omits material information from, a search warrant affidavit cannot

be said to have acted in an objectively reasonable manner, and the

shield of qualified immunity is lost." (internal quotation marks omit-

ted)); Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir.

1994) ("It is clearly established that the Fourth Amendment requires

a truthful factual showing sufficient to constitute probable cause

before an arrest warrant can issue." (emphasis added)). Det. Dougans

has not cited, and we have not found, any court that has held to the

contrary.

In sum, well before the events at issue in this case, it was clearly

established that a police officer could not lawfully make intentionally

or recklessly false material statements or omissions in order to obtain

a warrant. Accordingly, Det. Dougans is not entitled to qualified

immunity, as a matter of law, on the present record.

III.

For the foregoing reasons, the judgment of the district court grant-

ing summary judgment to Det. Dougans and the County is

AFFIRMED IN PART AND REVERSED IN PART.