Wadith Nader v. City of Papillion

United States Court of Appeals

For the Eighth Circuit

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No. 18-1402

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Wadith Stockinger Nader; Stacey Nichole Nader

lllllllllllllllllllllPlaintiffs - Appellants

v.

City of Papillion; Sarpy County, Nebraska; Bryan Svajgl; Benjamin Iversen; Scott

A. Lyons; L. Kenneth Polikov; Jennifer Miralles

lllllllllllllllllllllDefendants - Appellees

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Appeal from United States District Court

for the District of Nebraska - Omaha

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Submitted: December 11, 2018

Filed: March 8, 2019

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Before LOKEN, MELLOY, and ERICKSON, Circuit Judges.

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MELLOY, Circuit Judge.

Plaintiff Wadith Nader appeals the district court’s1 grant of summary judgment

against his 42 U.S.C. § 1983 claim for unlawful arrest in violation of the Fourth

Amendment. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

In December 2014, the National Center for Missing and Exploited Children

(“NCMEC”) received two tips from Microsoft regarding seven images of child

pornography that had been uploaded to Microsoft’s SkyDrive. The images had been

uploaded by a Microsoft customer with the email address wadith@hotmail.com.

NCMEC forwarded the tips to the Nebraska State Patrol, which in turn forwarded the

tips to the Papillion, Nebraska Police Department for further investigation. The

matter was assigned to Detective Bryan Svajgl. Svajgl determined that the images

likely constituted child pornography. He also determined that the email account from

which they had been uploaded belonged to Wadith Nader, who lived in Papillion,

Sarpy County, Nebraska. Svajgl then obtained a warrant to search Nader’s residence

for evidence of suspected child pornography violations, including possession of child

pornography under Neb. Rev. Stat. § 28-813.01. Nader does not contest the validity

of the search warrant.

Svajgl conducted the search along with a team of detectives on March 17,

2015. The team included Detective Benjamin Iversen, an officer skilled in analyzing

and reviewing computer files. While in Nader’s home, Iversen used a special

computer program to scan computers and other hardware owned by Nader for child

pornography. A scan of one of Nader’s computers revealed a large volume of

pornographic images. It also returned twenty-three keyword hits, which are words

that are defined as related to child pornography, and one hash value of interest, which

1

The Honorable Joseph F. Bataillon, United States District Judge for the

District of Nebraska.

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indicated the potential presence of an image of child pornography on the computer.2

At Nader’s home, Iversen was unable to review the image associated with the hash

value of interest to determine whether it actually contained child pornography. He

did, however, report the results to Svajgl. Svajgl then spoke with Nader. Nader

confirmed that he had searched for adult pornography but denied searching for any

child pornography. He also confirmed that he had uploaded files to the Microsoft

SkyDrive and mentioned that he might have accidentally uploaded child pornography.

The detectives seized the computer and several cell phones for later review.

Based on Nader’s confirmation that he had uploaded some images to the

Microsoft SkyDrive and the fact that seven images of child pornography had been

uploaded to the Microsoft SkyDrive from Nader’s email, Svajgl believed he had

probable cause to arrest Nader. Before arresting Nader, he called Sarpy County

Deputy Attorney Jennifer Miralles (now Jennifer Hessig) to confirm that he had

probable cause. Hessig was “on call” that day to answer questions from law

enforcement officers that arose during the ordinary course of business. She agreed

that Svajgl had probable cause to arrest Nader. Svajgl then arrested Nader and served

him with a Uniform Citation and Complaint for possession of child pornography.

Following the arrest, Svajgl filed an Affidavit in Support of a Warrantless Arrest with

the County Court of Sarpy County. On March 18, 2015, the reviewing judge signed

a Probable Cause Detention Order authorizing the detention of Nader. Ultimately,

none of the seven child-pornography images flagged by Microsoft were discovered

among the devices seized from Nader’s house. Several other images of child

pornography were eventually found on one of Nader’s devices, but he was not

prosecuted for possessing those images because prosecutors questioned whether they

could prove that Nader “knowingly possessed” them.

2

A hash value is essentially a digital finger print. Microsoft and other

technology companies maintain a database of hash values associated with child

pornography. Thus, a hash value of interest indicates the potential presence of an

image of child pornography.

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In May 2015, Nader filed a lawsuit asserting various federal and state law

claims against Svajgl, Iversen, Hessig, Scott Lyons, (the Chief of Police of the

Papillion Police Department), L. Kenneth Polikov (the Sarpy County Attorney), the

City of Papillion, and Sarpy County. All of the individual Defendants were sued in

their individual capacities. The district court granted Defendants’ motions for

summary judgment on all claims. Nader appeals only the district court’s grant of

summary judgment on his 42 U.S.C. § 1983 claim for unlawful arrest in violation of

the Fourth Amendment. On that claim, the district court found: (1) Svajgl and Iversen

were entitled to qualified immunity; (2) Hessig was entitled to either absolute

immunity or qualified immunity; (3) Lyons and Polikov were entitled to qualified

immunity; and (4) Sarpy County and the City of Papillion could not be subject to

municipal liability.

II. Standard of Review

We review the district court’s grant of summary judgment based on qualified

immunity de novo, “viewing the evidence in the light most favorable to [Nader] and

drawing all reasonable inferences in [his] favor.” Malone v. Hinman, 847 F.3d 949,

952 (8th Cir. 2017) (second alteration in original) (citation omitted). Summary

judgment is appropriate if “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). “An official

is entitled to qualified immunity unless (1) the evidence, viewed in the light most

favorable to the plaintiff, establishes a violation of a constitutional or statutory right,

and (2) the right was clearly established at the time of the violation.” Malone, 847

F.3d at 952.

III. Discussion

“A warrantless arrest is consistent with the Fourth Amendment if it is

supported by probable cause, and an officer is entitled to qualified immunity if there

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is at least ‘arguable probable cause.’” Borgman v. Kedley, 646 F.3d 518, 522–23 (8th

Cir. 2011) (quoting Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005)).

A detective has probable cause to arrest “when the totality of the circumstances at the

time of the arrest ‘are sufficient to lead a reasonable person to believe that the

defendant has committed or is committing an offense.’” Id. at 523 (quoting Fisher

v. Wal–Mart Stores, Inc., 619 F.3d 811, 816 (8th Cir. 2010)). “Arguable probable

cause exists even whe[n] an officer mistakenly arrests a suspect believing [the arrest]

is based in probable cause if the mistake is objectively reasonable.” Hosea v. City of

St. Paul, 867 F.3d 949, 955 (8th Cir. 2017) (alteration in original) (quoting Ehlers v.

City of Rapid City, 846 F.3d 1002, 1009 (8th Cir. 2017)). Whether probable cause

exists is a question of law to be “determined at the moment the arrest is made, and

‘any later developed facts are irrelevant to the . . . analysis.’” Id. (quoting Gilmore

v. City of Minneapolis, 837 F.3d 827, 833 (8th Cir. 2016)). A detective “need not

conduct a ‘mini-trial’ before effectuating an arrest” and “when assessing whether a

suspect possessed the state of mind required for the crime . . . he need not rely on an

explanation given by the suspect.” Borgman, 646 F.3d at 523–24 (citations omitted).

However, a detective “cannot avoid ‘minimal further investigation’ if it would have

exonerated the suspect.” Id. at 523 (quoting Kuehl v. Burtis, 173 F.3d 646, 650 (8th

Cir. 1999)).

Svajgl had probable cause to arrest Nader. The totality of the circumstances

at the time of the arrest, as described above, were sufficient for Svajgl to believe that

Nader had committed or was committing the offense of possessing child pornography.

Nader argues that minimal further investigation of the hash value of interest would

have revealed that the image it was associated with was not child pornography. But,

even assuming Svajgl had discovered that fact, probable cause would have still

existed. Seven images of child pornography had been uploaded from Nader’s email

to Microsoft’s SkyDrive, Nader himself acknowledged that he may have uploaded

child pornography accidentally (an excuse Svajgl was not required to believe), and

the twenty-three keyword hits still indicated the potential presence of child

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pornography on Nader’s computer. In sum, Svajgl and Iversen, to the extent Iversen

was even involved, are entitled to qualified immunity because their arrest of Nader

did not violate the Fourth Amendment. For that same reason, the remaining

individual defendants are also entitled to qualified immunity.

Further, Sarpy County and the City of Papillion cannot be subject to municipal

liability. “To establish municipal liability under § 1983, a plaintiff must show that

a constitutional violation was committed pursuant to an official custom, policy, or

practice of the governmental entity.” Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir.

2009). As we held in Webb v. City of Maplewood, however, “‘there must be an

unconstitutional act by a municipal employee’ before a municipality can be held

liable.” 889 F.3d 483, 487 (8th Cir. 2018) (citation omitted). Thus, because we find

that no municipal employee committed an unconstitutional act, municipal liability

cannot attach to Sarpy County and the City of Papillion.

IV. Conclusion

For the foregoing reasons, we affirm the judgment of the district court.

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