Christopher Kiesling v. Ross Spurlock

United States Court of Appeals

For the Eighth Circuit

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No. 16-2197

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Christopher Kiesling; Katy Kiesling

lllllllllllllllllllll Plaintiffs - Appellees

v.

Doc Holladay, Individually, and in his official capacity as Sheriff of Pulaski

County, AR; Mark Swagerty, Individually, and in his official capacity as a Pulaski

County Sheriff Deputy; Cardarious Walker, Individually, and in his official

capacity as a Pulaski County Sheriff Deputy; James Foster, Individually, and in his

official capacity as a Pulaski County Sheriff Deputy; Christopher Holmes,

Individually, and in his official capacity as a Pulaski County Sheriff Deputy;

Austin McKinniss, Individually, and in his official capacity as a Pulaski County

Sheriff Deputy; Kelle McAvoy, Individually, and in his official capacity as a

Pulaski County Sheriff Deputy; Zachary Warren, Individually, and in his official

capacity as a Pulaski County Sheriff Deputy; James Potter, "Jim" Individually, and

in his official capacity as a Pulaski County Sheriff Deputy; Adam Robertson,

Individually, and in his official capacity as a Pulaski County Sheriff Deputy;

James Kock, Individually, and in his official capacity as a Pulaski County Sheriff

Deputy; Bill Howell, in his individual capacity only; Joe Williams, in his

individual capacity only; Gary Don Stell, in his individual capacity only; Mike

Nast, in his individual capacity only; Travis Thorn, in his individual capacity only;

Matt Flowers, in his individual capacity only

lllllllllllllllllllll Defendants

Ross Spurlock, in his individual capacity only

lllllllllllllllllllll Defendant - Appellant

Pulaski County Arkansas

lllllllllllllllllllll Defendant

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Appeal from United States District Court

for the Eastern District of Arkansas - Little Rock

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Submitted: March 8, 2017

Filed: June 9, 2017

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Before RILEY, Chief Judge,1 GRUENDER, Circuit Judge, and GRITZNER,

District Judge.2

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GRUENDER, Circuit Judge.

Corporal Ross Spurlock of the Arkansas Game and Fish Commission

(“AGFC”) appeals the denial of his motion to dismiss various claims related to the

search of a residence. Although Spurlock conducted the challenged search pursuant

to a warrant, the district court determined that he was not entitled to qualified

immunity because a reasonable officer would have known that the warrant should not

have issued based on the information Spurlock provided to the issuing court. We

reverse because it was not entirely unreasonable for Spurlock to believe that his

1

The Honorable William Jay Riley stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on March 10,

2017. He has been succeeded by the Honorable Lavenski R. Smith.

2

The Honorable James E. Gritzner, United States District Judge for the

Southern District of Iowa, sitting by designation.

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affidavit established sufficient indicia of probable cause for the search and seizure of

the items listed in the warrant.

The AGFC opened an investigation into Christopher (“Vollie”) and Katy

Kiesling in March 2014, after receiving an anonymous tip that Katy was in possession

of a small, live deer. Spurlock became involved in the case later that month when he

obtained information from the Pulaski County Sheriff’s Office (“PCSO”) suggesting

that the Kieslings were keeping the deer as a pet, in violation of section 9.14 of the

AGFC Code.3 See Ark. Code R. § 002.00.1-09.14. During a recorded jailhouse call,

Vollie indicated that he was in possession of a recently injured “button buck” and

that, while on the phone, he was standing on his porch “watching him through the

window.” Spurlock interpreted this to mean that the Kieslings were keeping the deer

inside their home—a separate offense under the AGFC Code. See id. Based on his

experience and training, he also concluded that the deer was captured after July 1,

2012, the cutoff for the grandfather exception to section 9.14’s prohibition on keeping

deer as pets, given that button bucks are by definition less than one year old.

Citing the above information as probable cause to believe that there was an

illegally held pet deer at the Kiesling residence, Spurlock prepared an affidavit for a

warrant to search their home and seize certain items. The affidavit described the

residence and stated that it contained various items “tending to demonstrate that a

criminal offense has been committed, to-wit: Arkansas Game and Fish Commission

Code 9.14 (Native Wildlife Pets Restricted).” Specifically, the affidavit suggested

that there was probable cause to believe that the Kieslings were “conceal[ing] . . .

certain property, to-wit: a male whitetail deer, to wit: pens or cages, deer food,

ledgers documenting the capture or sale of wildlife, photographs of captured or

3

Contrary to the Kieslings’ assertion, the act of violating an AGFC regulation

constitutes a criminal misdemeanor under Arkansas law. See State v. Herndon, 226

S.W.3d 771, 774 (Ark. 2006).

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illegally taken wildlife, specifically deer.” Based on this affidavit, a state court judge

issued a search-and-seizure warrant for the Kiesling residence. The warrant directed

law enforcement to search the Kiesling residence and seize the following evidence:

(1) a button buck whitetail deer[;] (2) books, records, receipts, notes,

ledgers, and other personal papers to the capture or sale of wildlife,

specifically deer, pens or cages of housing wildlife[;] (3) photographs,

in particular photographs of captured or illegally taken wildlife,

specifically deer[;] (4) indicia of ownership of the above described

property; (5) computers, digital and/or electronic storage devices, and

any digital and/or electronic remov[able] media, tending to demonstrate

that criminal offenses have been committed[;] (6) and all other

instrumentalities including firearms and monies of criminal activity . . . .

On March 21, 2014, Spurlock and other AGFC officers executed the warrant.

The agents seized a live deer from the home and also discovered evidence of other

crimes, which prompted Spurlock to contact the PCSO. The PCSO obtained its own

search warrant, searched the premises pursuant to that warrant, and arrested Vollie

on firearm and drug possession charges. Subsequently, during a hearing in the State’s

criminal case against Vollie, a different state court judge found that Spurlock’s

affidavit lacked sufficient indicia of probable cause to justify the initial warrant, and

thus, the court granted Vollie’s motion to suppress the evidence obtained from both

searches. See Wong Sun v. United States, 371 U.S. 471, 484-88 (1963) (excluding

evidence obtained as “fruit of the poisonous tree” of an unlawful action). The State

then dropped all charges against Vollie.

Thereafter, the Kieslings brought an action against Spurlock, various law

enforcement agents, and Pulaski County under 42 U.S.C. § 1983 and the Arkansas

Civil Rights Act, claiming that the initial search violated their constitutional rights

and further alleging various state tort-law claims. The defendants then filed a motion

to dismiss, asserting entitlement to qualified immunity because the alleged

constitutional violations stemmed from a search conducted pursuant to a duly issued

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search warrant. The district court granted the motion as to all of the defendants

except Spurlock. While acknowledging “that qualified immunity is usually granted

to law enforcement officers operating under a warrant issued by a neutral magistrate

judge,” the court concluded that Spurlock, as the officer who prepared the warrant

affidavit, “is not entitled to qualified immunity because a reasonably competent

officer possessing the information available to [him] would have known that there

was not probable cause to search for any of the items listed in the warrant except for

the deer.” Spurlock timely filed this interlocutory appeal. See Barton v. Taber, 820

F.3d 958, 963 (8th Cir. 2016) (“Although ordinarily a denial of a pretrial motion is

not appealable, interlocutory appeals from the denial of qualified and statutory

immunity are permitted under the collateral-order doctrine.”).

“We review de novo the denial of a motion to dismiss on the basis of qualified

immunity.” Bradford v. Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005). “To prevail

at this stage of the proceedings, defendants must show that they are entitled to

qualified immunity on the face of the complaint.” Id. (citation omitted). The exhibits

attached to the Kieslings’ second amended complaint, including a copy of the search

warrant affidavit and the warrant itself, “are part of the complaint for this purpose.”

See id. (citations omitted); see also Fed. R. Civ. P. 10(c).

The doctrine of qualified immunity “protects government officials ‘from

liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’”

Stepnes v. Ritschel, 663 F.3d 952, 960 (8th Cir. 2011) (quoting Pearson v. Callahan,

555 U.S. 223, 231 (2009)). Qualified immunity “‘gives ample room for mistaken

judgments’ by protecting ‘all but the plainly incompetent or those who knowingly

violate the law.’” Smithson v. Aldrich, 235 F.3d 1058, 1061 (8th Cir. 2000) (quoting

Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam)). Whether an official may

be held personally liable for an official act “generally turns on the ‘objective legal

reasonableness’ of the [official’s] action, assessed in light of the legal rules that were

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‘clearly established’ at the time it was taken.” Saterdalen v. Spencer, 725 F.3d 838,

841 (8th Cir. 2013) (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)).

The parties agree that the Supreme Court’s opinion in Messerschmidt v.

Millender guides our analysis of qualified immunity where an alleged Fourth

Amendment violation involves a search or seizure conducted pursuant to a warrant.

565 U.S. 535 (2012). Relying on its earlier decisions in United States v. Leon, 468

U.S. 897 (1984), and Malley v. Briggs, 475 U.S. 335 (1986), the Messerschmidt Court

recognized that a warrant generally confers a “shield of immunity” to officers acting

within the scope of its authority. 565 U.S. at 546-48, 556. In such circumstances, the

Court explained, “the fact that a neutral magistrate has issued a warrant is the clearest

indication that the officers acted in an objectively reasonable manner.” Id. at 546.

However, this rule is not absolute. The Supreme Court long ago rejected the notion

that officers are automatically entitled to qualified immunity because a magistrate

approved a warrant application, Malley, 475 U.S. at 345, and Messerschmidt

reiterated the “exception allowing suit . . . where the warrant was ‘based on an

affidavit so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable,’” 565 U.S. at 547 (quoting Leon, 468 U.S. at 923).

At the same time, Messerschmidt emphasized that “the threshold for establishing this

exception is a high one, and it should be.” Id. Given the “sound presumption that the

magistrate is more qualified than the police officer to make a probable cause

determination,” id. (quoting Malley, 475 U.S. at 346 n.9), the Court predicted, “[t]he

occasions on which this standard will be met may be rare,” id. at 556.

Spurlock contends that the district court erred in finding that his conduct falls

within the narrow scope of the exception identified in Messerschmidt. Primarily, he

argues that “the District Court’s acknowledgement that there was probable cause for

the deer is in and of itself sufficient to demonstrate the warrant was not ‘based on an

affidavit so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable.’” See id. at 547. Alternatively, he challenges the

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district court’s determination that the warrant affidavit failed to establish probable

cause with respect to the other items the warrant authorized to be seized. Whether or

not the existence of probable cause for one item in a warrant is sufficient to immunize

defects as to all of the other items, we conclude that Spurlock retains the shield of

immunity conferred by the warrant because it was not entirely unreasonable for him

to believe that his affidavit established sufficient probable cause for the search and

seizure of the items included in the warrant.

As an initial matter, it is important to emphasize that the relevant inquiry in

cases such as this is not whether a warrant application was, in fact, sufficient to

establish probable cause of criminal activity. Rather, when a search or seizure is

conducted pursuant to a duly issued warrant, we must determine whether it was

“entirely unreasonable” for an officer to believe that the warrant application

established probable cause.4 Id. at 553, 556; see also United States v. Hallam, 407

F.3d 942, 946 (8th Cir. 2005) (holding that it was objectively reasonable for an

officer to rely on the validity of a warrant where “the [officer’s] affidavit, while scant,

was not so utterly lacking in facts as to render [his] belief that it established probable

cause ‘entirely unreasonable.’”). The facts of Messerschmidt help clarify just how

much “breathing room” this standard affords law enforcement officers like Spurlock.

See 565 U.S. at 546 (citation omitted). The target of the warrant in Messerschmidt

was a known gang member who was reported to have fired a sawed-off shotgun with

a pistol grip at his girlfriend because she had called the police on him. Id. at 539-41.

In addition to the weapon used in the assault, of which the police had a precise

4

Given the stark contrast between our analysis of qualified immunity and that

of an underlying constitutional right, we do not share the dissent’s concern that our

“opinion could potentially permit overbroad, and thus unconstitutional, warrants . . .

substantially weakening the Fourth Amendment’s protections against general

searches.” Post at 12. To be clear, our analysis is limited to the question of whether

Spurlock, who acted pursuant to a duly issued warrant, is entitled to qualified

immunity under Messerschmidt.

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description, the affiant-officer included an extensive list of other items to be seized

in the warrant application—ranging from “[a]ll handguns, rifles, or shotguns of any

caliber” and “[a]ll caliber of ammunition, miscellaneous gun parts, gun cleaning kits,

[and] holsters” to “receipts or paperwork” related to the firearms, and even evidence

of the target’s street gang membership, which included “writings or graffiti” and

“photographs or photograph albums.” Id. at 541-42. The warrant affidavit also

identified the two crimes under investigation as spousal assault and assault with a

deadly weapon. Id. at 550.

Echoing the Kieslings’ argument in this case, the plaintiffs in Messerschmidt

argued that law enforcement “failed to provide any facts or circumstances from which

a magistrate could properly conclude that there was probable cause to seize the broad

classes of items being sought.” Id. at 548. As such, they suggested, “[n]o reasonable

officer would have presumed that such a warrant was valid.” Id. (alteration in

original). The Supreme Court forcefully rejected this argument:

Even if the scope of the warrant were overbroad in authorizing a search

for all guns when there was information only about a specific one . . .

[and] for evidence of gang membership . . . it would not have been

‘entirely unreasonable’ for an officer to believe that the . . . the affidavit

established a fair probability that such evidence would aid the

prosecution of [the target] for the criminal acts at issue.

Id. at 548-49, 553. Therefore, the Court held that the officers were entitled to

qualified immunity. Id. at 556. Based on Messerschmidt’s factual similarity with the

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present case, we conclude that this precedent compels the same result for Spurlock.5

On the record before us, we hold that it was not entirely unreasonable for

Spurlock to believe that his affidavit established sufficient probable cause for the

search and seizure of the items included in the warrant. First, the district court found,

and the Kieslings effectively concede, that the affidavit provided probable cause to

seize the deer, based on the anonymous tip and the recorded jailhouse call.6 Second,

we agree with Spurlock’s argument that the items described in numbers two through

four of the warrant—which include documentation related to the “capture or sale of

wildlife” (item two), photographs related to illegally captured wildlife (item three),

and indicia of ownership of the first three categories of items to be seized (item

four)—were relevant to the criminal offense under investigation, as they directly

related to the existence, capture, and maintaining of a pet deer. Cf. United States v.

Timley, 443 F.3d 615, 623 (8th Cir. 2006) (finding valid a warrant authorizing the

5

The dissent reads Messerschmidt to suggest that “the facts in the affidavit must

include indicia of probable cause for each item in a warrant.” Post at 13 (emphasis

added). While the dissent is correct that Messerschmidt seems to indicate that

probable cause existed to search for other illegal guns, gang paraphernalia, and

photographs or photo albums, it ignores the Court’s alternative analysis, where it

assumed that probable cause was lacking as to these items but nonetheless concluded

that the officers retained qualified immunity as such evidence could “aid [in] the

prosecution of . . . the criminal acts at issue.” See 565 U.S. at 548-53.

6

The Kieslings do suggest that Spurlock “didn’t know for sure whether the deer

was illegal or not,” based primarily on the AGFC Code’s grandfather clause. While

the fact that Vollie identified the deer as a “button buck” establishes with near

certainty that the deer was born after the grace period’s cutoff date of July 1, 2012,

such certainty is not required. Rather, to lose the shield of immunity conferred by the

warrant, it must have been objectively unreasonable for Spurlock to believe that the

affidavit established probable cause that the deer was illegal, see Messerschmidt, 565

U.S. at 546-47, and his affidavit plainly meets this low threshold.

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seizure of “equipment used to further drug transactions, documents relating to drug

transactions . . . and photographs of coconspirators or objects of the conspiracy”).

Finally, we agree with the Kieslings that items five and six include somewhat broad,

categorical language in identifying digitally stored evidence and several possible

instrumentalities of criminal activity, including cash and firearms. However, like the

gang paraphernalia, photo albums, and other weapons seized in Messerschmidt, there

was at least a fair probability that these items would be found and that they would

“aid [in] the prosecution of . . . the criminal act[] at issue.” See 565 U.S. at 552-53;

see also id. at 552 n.7 (“The Fourth Amendment does not require probable cause to

believe evidence will conclusively establish a fact before permitting a search, but only

probable cause . . . to believe the evidence sought will aid in a particular

apprehension or conviction.” (citation and internal quotation marks omitted)).

The dissent contends that there is “no plausible connection” between the

misdemeanor offense of keeping a deer as a pet and the items described in numbers

five and six of the warrant. See post at 13 n.8, 14-15. As an initial matter, the dissent

appears to require actual probable cause and ignores Messerschmidt’s more lenient

“entirely unreasonable” standard. Regardless, we do not agree that the inclusion of

these items rendered Spurlock’s reliance on the warrant entirely unreasonable. First,

the inclusion of digital storage devices does not defeat immunity because there was

a fair probability that officers would find digitally stored pictures of the deer or

records of its purchase or the purchase of food, pens, or other related items. At the

very least, it would not be entirely unreasonable for Spurlock to reach this conclusion,

and Messerschmidt explicitly approved of the seizure of evidence that helps establish

possession of items related to the crimes specified in a warrant application. 565 U.S.

at 552 (explaining that, even if evidence is not directly related to the target offenses,

“a reasonable officer could still conclude that [such evidence] would aid in the

prosecution of [the suspect] by, for example, demonstrating [his] connection to other

evidence found [nearby]”).

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As for the evidence of other instrumentalities of criminal activity, we agree

with the dissent that the warrant affidavit likely fails to establish probable cause due

to its limited focus on AGFC Code § 9.14. However, it would not be “entirely

unreasonable” for Spurlock to conclude that suspects keeping a live deer in their

home also may be engaging in wildlife trafficking, which would constitute a violation

of AGFC Code § 9.07. See Ark. Code R. § 002.00.1-09.07 (prohibiting the sale of

wildlife without a valid permit). Relying on this inference, a reasonable officer could

conclude that money, guns, and other such evidence would be relevant for a future

prosecution in the same way that similar instrumentality evidence was justified in

Messerschmidt. There, the Court suggested that officers would not be entirely

unreasonable in concluding that they might find other illegal guns—separate and

apart from the pistol-gripped sawed-off shotgun associated with the assault—for the

purpose of pursuing potential firearm charges not referred to in the affidavit. Id. at

535. Likewise, although Spurlock did not explicitly note any suspicion of wildlife

trafficking in his affidavit, he alluded to it by stating that the Kieslings had “ledgers

documenting the capture or sale of wildlife,” and it was not entirely unreasonable for

him to have reached this conclusion. We do not see how this materially differs from

Messerschmidt’s rationalization for the broad search for firearm evidence—not to

mention the inclusion of unrelated gun paraphernalia like the holsters, cleaning kits,

and ammunition. Thus, even assuming that the warrant was overbroad as to these

final two categories, this was not a case where the issuing judge “so obviously erred

that any reasonable officer would have recognized the error.” Id. at 548-49.

In sum, although we are inclined to think that the affidavit contained sufficient

indicia of probable cause to support the seizure of most of the items in the warrant,

at a minimum, this is not the rare case where a warrant affidavit is “so lacking in

indicia of probable cause as to render official belief in its existence entirely

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unreasonable.” Id. at 547 (citation omitted). As such, the district court erred in

determining that Spurlock was not entitled to qualified immunity.7

Accordingly, the district court’s order denying qualified immunity as to Officer

Spurlock is reversed.

GRITZNER, District Judge, dissenting.

7

As an alternative basis for affirmance, the Kieslings invoke three other

purported exceptions to the general rule immunizing officers who conduct searches

and seizures pursuant to a warrant. Even assuming that Messerschmidt implicitly

adopted these exceptions through its reliance on relevant precedent, none serves to

defeat qualified immunity based on the record before us. For the first two exceptions,

the Kieslings argue that Leon established that officers may be subject to liability

despite the existence of a warrant: (1) where a warrant affidavit is based on “knowing

or reckless falsity,” and (2) where the issuing judge fails to “perform his ‘neutral and

detached function’ and [instead] serve[s] merely as a rubber stamp for the police.”

468 U.S. at 914 (citations omitted). Although the Kieslings claim that the affidavit

here “was based on false information and omissions,” they point only to Spurlock’s

conclusion that a crime had been committed, arguing once again that he could not be

certain that they illegally possessed the deer. This is simply not enough to suggest

that Spurlock was untruthful in his affidavit. Likewise, the Kieslings point to no facts

suggesting that the issuing judge abandoned his neutrality. Finally, for the third

purported exception, the Kieslings rely on Groh v. Ramirez for the premise that “a

warrant may be so facially deficient . . . that the executing officers cannot reasonably

presume it to be valid” and thus lose the shield of qualified immunity. 540 U.S. 551,

565 (2004). However, the only defect they identify is the alleged incompatibility

between the factual claims in the affidavit and the scope of items to be seized.

Messerschmidt expressly rejected this interpretation of Groh, noting that this

precedent was “far afield” because “any defect [related to overbreadth] would not

have been obvious from the face of the warrant.” 565 U.S. at 555-56. As such, none

of these three exceptions provides an alternative basis for affirmance.

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Because I hold the view that the warrant was clearly overbroad, and the District

Court properly declined to recognize the protection of qualified immunity, I

respectfully dissent. I would find the warrant that Spurlock executed was so

obviously overbroad in relation to the criminal act at issue that any reasonable officer

would have known there was no probable cause for the scope of the warrant. See

Malley v. Briggs, 475 U.S. 333, 345 (1986). Put simply, no reasonable officer could

conclude that a search and seizure of digital storage devices, firearms, or monies

would bear any plausible connection to a misdemeanor regulatory infraction of

housing a deer as a pet. As it stands, the majority opinion could potentially permit

overbroad, and thus unconstitutional, warrants so long as some portion of the warrant

is supported by probable cause, substantially weakening the Fourth Amendment’s

protections against general searches.

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

probable cause . . . and particularly describing the . . . things to be seized,” U.S.

Const. amend. IV. This requirement is necessary to prevent “unauthorized invasions

of the sanctity of a man’s home and privacies of life.” Berger v. New York, 388 U.S.

41, 58 (1967) (citation and internal quotation marks omitted). The Fourth

Amendment’s particularity requirement commands that an overbroad warrant is not

saved if probable cause is lacking for only some, but not all, of the items to be

searched. A warrant must be wholly based on probable cause. This is because the

Fourth Amendment “limit[s] the authorization to search to the specific areas and

things for which there is probable cause to search.” Maryland v. Garrison, 480 U.S.

79, 84 (1987) (emphasis added); see also Groh v. Ramirez, 540 U.S. 551, 560 (2004)

(“[U]nless the particular items described in the affidavit are . . . set forth in the

warrant itself . . . , there can be no written assurance that the Magistrate actually

found probable cause to search for, and to seize, every item mentioned in the

affidavit.” (emphasis added)). In this case, there is no basis to conclude that firearms,

monies, or “other instrumentalities . . . of criminal activity” would aid prosecution of

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a crime that consists in the mere possession of a deer as a pet.8 Because this much

would be obvious to any reasonable police officer, qualified immunity must be denied

under Messerschmidt v. Millender, 565 U.S. 535 (2012).

The Supreme Court’s decision in Messerschmidt demonstrates that the facts in

the affidavit must include indicia of probable cause for each item in a warrant and

also diverges substantially from the facts of this case. As the majority notes, the

warrant at issue in Messerschmidt concerned a known gang member who had

attempted to murder his estranged girlfriend after she had “call[ed] the cops” on him.

Messerschmidt, 565 U.S. at 548 (alteration in original). In addition to authorizing a

search for the weapon used to commit the crime, the warrant authorized a search for

all firearms as well as for indicia of the suspect’s gang membership. Id. at 541-42.

The Supreme Court in Messerschmidt, assuming that the inclusion of such items

rendered the warrant overbroad, determined that there was arguably probable cause

as to those items because, inter alia, the suspect could use other firearms to make a

repeat attempt on the woman’s life and that there was arguably probable cause as to

the indicia of gang membership because, inter alia, the suspect’s gang membership

could have been relevant to establish a motive for the attempted murder. Id. at

8

Neither the majority opinion nor the district court’s order detail the Arkansas

Regulations upon which the affidavit was based and the warrant was issued. First,

as appellant lists, is Code Ark. R. 002.00.1-09.01, which provides that “[i]t is

unlawful to possess, hold captive, confine or enclose any live wildlife, whether native

or non-native, migratory or imported, unless otherwise specified herein.” The second

regulation is Code Ark. R. 002.00.1-09.14, which, with certain exceptions, prohibits

keeping a deer as a pet, requires certain housing enclosures for lawfully kept deer,

and prohibits keeping such deer in dangerous or unhealthy conditions. Even a

generous reading of those regulations does not support the seizure of the following

items enumerated as “(5)” and “(6)” of the warrant: “(5) computers, digital and/or

electronic storage devices, and any digital and/or electronic removable media, tending

to demonstrate that criminal offenses have been committed (6) and all other

instrumentalities including firearms and monies of criminal activity.”

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550-51. The ultimate question was whether “the facts set out in the affidavit

established a fair probability that such evidence would aid the prosecution of [the

suspect] for the criminal acts at issue,” which the Supreme Court deemed satisfied for

the items listed in the warrant. Id. at 553.

The facts set forth in Spurlock’s affidavit and some of the items set forth in the

warrant lack a similar logical connection, and the majority opinion does not provide

one; nor could that be successfully done on this record.9 If there is no plausible

9

Because Messerschmidt instructs that facts in the affidavit must provide

objectively reasonable grounds to believe there is probable cause, it is necessary to

review the link between the affidavit, the nature of the crimes at issue, and the scope

of the search. See Messerschmidt, 565 U.S. at 551-53. First, the factual basis of the

warrant application in Messerschmidt was provided from an interview with the

victim, which, in turn, was recounted in the warrant application and affidavit. Id. at

548-49. These facts disclosed the suspect’s prior use of guns and gang affiliation.

Id. Here, the warrant application was based upon information that the Kieslings

possessed a deer. There was no indication the Kieslings were engaged in criminal

activity related to, or beyond, possession of a deer. Second, the detectives in

Messerschmidt verified the victim’s account of the suspect’s related criminal activity

and sought the approval of a superior and a deputy district attorney before submitting

the warrant application. Id. at 553. There is no indication Spurlock verified the facts

in the affidavit or sought approval of the warrant application. Third, the items in the

Messerschmidt warrant were anticipated by the warrant application and affidavit. Id.

That is not the case, here. Although Spurlock’s affidavit asserted probable cause to

search for “ledgers documenting the capture or sale of wildlife,” this was not a fact

set out in the affidavit but was itself an inference of probable cause from the facts.

Items five and six of the warrant are not anticipated by facts set out in the affidavit.

Moreover, the majority’s rationale that it was not “‘entirely unreasonable’ for

Spurlock to conclude that suspects keeping a live deer in their home also may be

engaging in wildlife trafficking,” ante, at 10, in my view exceeds the court’s role in

the qualified immunity analysis. Spurlock did not mention in the application or the

affidavit that he had reason to suspect the Kieslings were involved in wildlife

trafficking. Allowing this inference, the majority fills gaps in this record citing

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connection between the crime at issue and items described in the warrant, there is no

means of finding arguable probable cause as to those items. See id. (determining “it

would not have been ‘entirely unreasonable’ for an officer to believe that the facts set

out in the affidavit established a fair probability that such evidence would aid the

prosecution of [the suspect] for the criminal acts at issue”) (quoting Malley, 475 U.S.

at 341). Contrary to the majority’s conclusion, a situation in which there is no

reasonable basis to find probable cause as to the warrant’s breadth is precisely the

situation in which the issuing judge “so obviously erred that any reasonable officer

would have recognized the error.” Messerschmidt, 565 U.S. at 556.

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Messerschmidt’s “more lenient” standard. I do not read Messerschmidt as going that

far. Indeed, Messerschmidt goes to great lengths to detail the detectives’ conduct that

supported a finding that their reliance on the warrant was not entirely unreasonable.

Messerschmidt was a case driven by factual support in the record, and I conclude it

cannot be read to support Spurlock’s reliance on the warrant in this case.

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