Brandon Wheeler v. Mark Kidder

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 20-3292

___________________________

Brandon Lee Wheeler

lllllllllllllllllllllPlaintiff - Appellee

v.

City of Searcy, Arkansas; Eric Webb

lllllllllllllllllllllDefendants

Mark Kidder, Individually; Adam Sexton, Individually; Nick Darnell, Individually

lllllllllllllllllllllDefendants - Appellants

Charley Perry; John Does

lllllllllllllllllllllDefendants

____________

Appeal from United States District Court

for the Eastern District of Arkansas - Central

____________

Submitted: April 15, 2021

Filed: September 29, 2021

____________

Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.

____________

SMITH, Chief Judge.

Brandon Lee Wheeler brought an action under 42 U.S.C. § 1983, alleging that

his constitutional and state-law rights were violated when he was arrested for

committing capital murder and abuse of a corpse. Relevant to the present appeal,

Wheeler asserted individual-capacity claims against Searcy Police Department

Officers Mark Kidder, Adam Sexton, and Nick Darnell (collectively, “the officers”),

alleging that they recklessly or deliberately provided a misleading affidavit in support

of the warrant issued for Wheeler’s arrest. The officers moved for summary judgment,

citing Messerschmidt v. Millender, 565 U.S. 535 (2012), for the proposition that the

prosecuting attorney’s approval of the warrant affidavit entitles them to qualified

immunity. The district court1 denied qualified immunity after distinguishing

Messerschmidt as “not involv[ing] a charge that officers knowingly or recklessly

included false or misleading information in an arrest warrant application.” Wheeler

v. City of Searcy, No. 4:18-cv-00859-SWW, 2020 WL 6141041, at *4 (E.D. Ark. Oct.

19, 2020). The officers appeal the district court’s denial of qualified immunity on the

narrow issue of whether Messrschmidt compels summary judgment in their favor. We

affirm.

I. Background

On October 5, 1994, David Green (“David”) reported to the Searcy Police

Department that his 22-year-old son, Jarrod Green (“Green”), had been missing since

September 30, 1994. According to the police report, David told officers that “his son

had left [David’s] home to meet with a Brandon Wheeler . . . because his son owed

Brandon Wheeler money for drugs.” Aff. to Statement of Facts at 22, Wheeler v. City

of Searcy, No. 4:18-cv-00859-SWW (E.D. Ark. 2020), ECF No. 21-1 (all caps

1

The Honorable Susan Webber Wright, United States District Judge for the

Eastern District of Arkansas.

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omitted). After receiving the missing-person report, the police began investigating

Green’s disappearance.

A. Langley’s Statements

In 1995, an individual named Charles Langley provided a written statement to

law enforcement that implicated Wheeler in Green’s disappearance. He indicated that

during a drug deal, Wheeler and Jason Webb had inquired if Langley would be

willing “to get rid of” Green “because he owed [Wheeler and Webb] $7500.00” Id.

at 23. Langley also stated that, on a later date, Wheeler and Webb told him that

“Green was no longer a problem” because they “took care of him.” Id. Police believed

that “Langley’s . . . statement . . . that Wheeler and Webb told him that they grabbed

Green at Walmart and ‘took care of him’ . . . [was] corroborated [by] the fact that

Green’s car was discovered abandoned in the Walmart parking [lot].” Wheeler v. City

of Searcy, No. 4:18-cv-00859-SWW, 2020 WL 2758898, at *6 n.13 (E.D. Ark. May

27, 2020). Based on the limited available evidence, the police suspected that Green

was deceased and that Wheeler had murdered him; however, they did not pursue

charges against Wheeler because of lack of evidence.

Almost five years later, on March 9, 2000, Officer Charles Perry interviewed

Langley while he was imprisoned at the St. Francis County Jail. “Langley renounced

the portion of his original statement implicating Wheeler, and he said that ‘most’ of

his original statement was a lie.” Id. In his written statement to Officer Perry, Langley

stated:

I knew the reason for Det. Perry coming . . . [,] and it was about Jarrod

Green, the boy that came up missing back in 1994. He asked me if I

could tell him about the people I was dealing with around that time and

why I said that I could shed some light on Jarrod being missing. I told

Det. Perry that I was on my way to prison at the time that I made the

statement . . . [,] and most of what I told him was stuff that was being

spread around the drug community. I explained that I did not even know

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the guys, meaning Brandon Wheeler and Robert Webb, at the time that

Jarrod came up missing. I had my first dealings with Wheeler and Webb

either in late 1994 or early 1995. The two were always carrying guns

and at one point in early [1995] they had left a glock 45 at my house for

several days. The statement that I had made [in 1995] . . . was an attempt

to shorten my stay or possibly even keep me from going to prison, but

most of which was a lie.

Aff. to Statement of Facts at 24.

Over 16 years later, in November 2016, Officers Kidder, Darnell, and Sexton

reopened Green’s missing-person case. Investigative notes indicate that the officers

interviewed Langley a third time; Langley reiterated the recantation of his 1995

statement. Thereafter, the officers requested that Langley submit to a polygraph test;

Langley consented. The polygraph examiner concluded that “Langley was being

deceptive on more than one question.” Ex. 1 to Br. in Supp. of Mot. for Summ. J. at

2, ¶ 6, Wheeler v. City of Searcy, No. 4:18-cv-00859-SWW (E.D. Ark. 2020), ECF

No. 64-1. The officers communicated the results of the polygraph test to their

supervisor, as well as Prosecuting Attorney Rebecca Reed McCoy (“Prosecutor

McCoy”).

B. Wheeler’s Arrest

Based on evidence not identified in the record, investigating officers surmised

that Green’s remains could be found at a particular rural property of interest. They

searched that property on December 13, 2016, using a certified cadaver dog. A police

mission report documented the search and stated that the dog was “brought to the

point last seen and allowed to take inventory of the odors in the area prior to being

scented.” Aff. to Statement of Facts at 28. This meant that the dog handler had

exposed the dog to Green’s scent before the search proceeded. According to the

mission report, the dog showed repeated interest in a spot near an old deer stand, an

area that a confidential informant had described. On December 17, 2016, the officers

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searched the property with additional certified cadaver dogs. Both dogs reacted to the

same spot in which the prior dog had shown an interest. The search extended to a

pond on the property. The pond was drained, but no physical evidence of human

remains was ever found.

During the reopened investigation, the officers consulted Prosecutor McCoy.

She reviewed the evidence. Officer Sexton prepared a sworn affidavit to obtain a

warrant for Wheeler’s arrest for capital murder and abuse of a corpse. He signed the

affidavit on March 28, 2017. At some point, Prosecutor McCoy reviewed the

affidavit. In reviewing the affidavit, Prosecutor McCoy “made corrections and

changes to [it].” Ex. 3 to Br. in Supp. of Mot. for Summ. J. at 2, ¶ 10, Wheeler v. City

of Searcy, No. 4:18-cv-00859-SWW (E.D. Ark. 2020), ECF No. 64-3. “After the

Affidavit was completed, [Prosecutor McCoy] reviewed the Affidavit and believed

it was true, accurate, and presented sufficient evidence to meet the probable cause

requirement for issuance of an arrest warrant.” Id. at 2, ¶ 12.

1. Officer Sexton’s Affidavit

Officer Sexton signed a 12-paragraph sworn affidavit2 in support of the arrest

warrant. The first and second paragraphs recited the initial facts surrounding Green’s

disappearance. The third paragraph was the first in a series of paragraphs

summarizing statements from five witnesses. It summarized Langley’s original

statement, providing that, in 1995,

witness 1 [Langley] made a statement both verbally and in written form

to Law Enforcement. Witness 1 stated he was approached by Brandon

Wheeler and Wheeler’s roommate in 1994, prior to Jarrod Green’s

disappearance and offered one thousand ($1,000.00) dollars to get rid of

Jarrod Green. After Jarrod Green’s disappearance[,] Brandon Wheeler

and his roommate came back to witness 1 and stated Jarrod Green had

2

An introductory sentence stating that Officer Sexton was providing the

statement under oath preceded the 12 paragraphs.

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been done away with. Witness 1 also provided details about Brandon

Wheeler and his roommate grabbing Jarrod Green at the Wal-Mart

Super Center store parking lot. Original police reports show Jarrod

Green’s vehicle was found at the Wal-Mart Super Center parking lot.

Aff. to Statement of Facts at 48.

The fourth paragraph mentioned a December 8, 2016 statement taken from

witness 2 indicating that the witness had met with Green on the night of his

disappearance. Green purportedly asked this witness to return a firearm, which Green

needed for protection from Wheeler. The witness gave Green the gun and told him

to be careful.

In the fifth paragraph, Officer Sexton described a December 13, 2016 statement

from witness 3. Witness 3 related her opinion that Green fled the area to get away

from Wheeler. According to witness 3, Green subsequently returned home but

disappeared about a week later.

The sixth paragraph referred to a December 14, 2016 statement from witness

4, Green’s girlfriend, who related that he begged her to leave with him on the very

night that he disappeared. She never saw or heard from him again.

The seventh paragraph described a December 14, 2016 statement from witness

5, a friend of Green, who represented that Green disclosed to him that he had obtained

drugs from Wheeler for resale but did not intend to repay Wheeler due to prior

experiences with him.

The eighth paragraph mentioned that ten months after Green’s disappearance,

a close friend of Wheeler’s, who had purportedly bragged about having a part in

Green’s disappearance, also vanished. The ninth paragraph also suggestively

mentioned the December 31, 2000 suicide of a near acquaintance of Wheeler’s after

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this individual revealed knowledge of two murders to a relative member of the clergy.

The statement does not expressly assert any evidence connecting the disappearance

and suicide to Wheeler or the disappearance of Green.

The tenth paragraph of the affidavit is perhaps the most crucial to the issue in

this case. It reads as follows

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.

Id. at 49.

The affidavit concluded with a request to the court to issue an arrest warrant

for Wheeler on the charges of capital murder and abuse of a corpse.

2. Prosecutor McCoy’s Role

In affidavits and depositions, the officers and Prosecutor McCoy provided their

accounts of Prosecutor McCoy’s role in preparing the arrest-warrant affidavit. With

regard to Langley’s statement, Officer Sexton averred that he and Officer Kidder

“never tried to hide the results of Mr. Langley’s interviews with anyone” and that

they “provided [their findings] to [their] supervisor as well as Prosecutor McCoy.”

Ex. 2 to Br. in Supp. of Mot. for Summ. J. at 1, Wheeler v. City of Searcy, No.

4:18-cv-00859-SWW (E.D. Ark. 2020), ECF No. 64-2. Officer Sexton testified that

the entire case file, which included the officers’ interview with Langley, was

“[p]rovided to the prosecuting attorney.” Pl.’s Ex. A to Resp. to Second Mot. for

Summ. J. at 4, Wheeler v. City of Searcy, No. 4:18-cv-00859-SWW (E.D. Ark. 2020),

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ECF No. 67-1. Officer Sexton also noted that the case file was “available through

discovery.” Ex. 2 to Br. in Supp. of Mot. for Summ. J. at 2, ¶ 3. The officers asserted

that Prosecutor McCoy advised that they could include Langley’s “original 1995

statement . . . in the affidavit as long as [the officers] provided what [they] learned

in the other interviews with him.” Id. at 1, ¶ 3 (emphasis added). According to Officer

Sexton, “Ms. McCoy knew there was more than one interview on Charles Langley

when she approved the affidavit.” Id. at 2, ¶ 3.

For her part, Prosecutor McCoy recalled telling the officers that she did not

think that Langley’s recantation was “going to carry a whole lot of weight necessarily,

because . . . the form of the question that was shown to be deceptive [during his

polygraph test] was very vague.” Pl.’s Ex. A to Resp. to Second Mot. for Summ. J.

at 26. Prosecutor McCoy did not believe that Langley’s response during the

polygraph test “necessarily proved that he was telling the truth when he recanted or

that he was telling the truth from the beginning.” Id. at 27. She admitted that Langley

“recanted at least on two occasions” and that his recantations were “not included by

the officers in th[e] affidavit.” Id. When questioned about whether she “told [the

officers] to omit” Langley’s recantations in the affidavit, Prosecutor McCoy

responded, “I absolutely did not tell them not to include that. That would be deceptive

and that’s not how I operate. I reviewed this affidavit and perhaps I should have

noticed that it was not in there, but absolutely did not tell them to put it in there or not

to put it in there.” Id. (emphases added).

3. Dog Search

With regard to the cadaver dogs’ search of the property, the officers have

admitted that the dogs never found “human remains.” Ex. 1 to Br. in Supp. of Mot.

for Summ. J. at 4, ¶ 13; Ex. 2 to Br. in Supp. of Mot. for Summ. J. at 3, ¶ 6. When the

affidavit in support of the arrest warrant was signed, the officers knew that the

cadaver dogs had merely shown an interest in the area near a deer stand and that no

physical evidence of a dead body was discovered during the search. Nevertheless,

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Officer Sexton contended, Prosecutor McCoy “approved the wording in the last

paragraph on page 2 of the affidavit because she considered the cadaver dogs’

indication evidence as [the officers] did. This was because the dogs were certified and

trained to indicate on human remains.” Ex. 2 to Br. in Supp. of Mot. for Summ. J. at

3, ¶ 6; see also Pl.’s Ex. A to Resp. to Second Mot. for Summ. J. at 5 (“But according

to the prosecuting attorney, [the cadaver dogs] indicating that there was human

decomposition is considered evidence to get a search warrant.”). According to Officer

Sexton, Prosecutor McCoy “cited [the officers] to case law which supported this

paragraph which was a coordinated effort of [Officer Sexton], Ms. McCoy[,] and

Detective Kidder.” Ex. 2 to Br. in Supp. of Mot. for Summ. J. at 3, ¶ 6. Officer Kidder

likewise maintained that Prosecutor McCoy “advised us [that] because of the intense

training and certifications of the cadaver dogs, their alerting to decaying human scent

was considered evidence in and of itself and could be used in the affidavit as such.

This is the reason this last paragraph is included in the affidavit.” Ex. 1 to Br. in

Supp. of Mot. for Summ. J. at 4, ¶ 13.

Prosecutor McCoy characterized the arrest-warrant affidavit’s statement that

“[t]his information indicated Jarrod Green’s body was disposed of at this location”

as “a strong statement.” Pl.’s Ex. A to Resp. to Second Mot. for Summ. J. at 28. When

asked which officer made that statement, Prosecutor McCoy replied, “I don’t know

that any of them told me that.” Id. She was able only to confirm that Officer Sexton

was the affidavit’s author.

4. The Arrest-Warrant Request

Prosecutor McCoy and the officers appeared before White County Circuit

Court Judge Robert Edwards to request an arrest warrant. Prosecutor McCoy

explained that she accompanied the officers “simply so that [Judge Edwards] would

let them in the door, because that’s not the normal procedure.” Pl.’s Ex. A to Resp.

to Second Mot. for Summ. J. at 29. Officers Kidder and Sexton recalled that Judge

Edwards asked them “several questions” about the affidavit. Ex. 2 to Br. in Supp. of

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Mot. for Summ. J. at 3, ¶ 7.3 Prosecutor McCoy averred that Judge Edwards

“reviewe[d] the affidavit” and she and the officers “discuss[ed] this matter with Judge

Edwards.” Ex. 3 to Br. in Supp. of Mot. for Summ. J. at 2, ¶ 14. Thereafter, “he issued

a bench warrant charging Brandon Wheeler with Murder and Abuse of a Corpse.” Id.

In her deposition, however, McCoy recalled that Judge Edwards relied solely on the

affidavit’s contents to make a probable-cause determination. According to McCoy,

the officers presented the affidavit, and she offered no comments. Judge Edwards

read the affidavit and signed it.

On April 6, 2017, Judge Edwards issued a warrant for Wheeler’s arrest on the

charges of capital murder and abuse of a corpse. On May 10, 2017, Prosecutor

McCoy issued an information charging Wheeler with capital murder and abuse of a

corpse. Wheeler was arrested and detained.

On June 5, 2017, Wheeler was released on bail. On November 9, 2017,

Prosecutor McCoy moved to nolle pros the charges against Wheeler “for the reason

additional evidence is expected to be recovered and DNA testing would not be

completed within the time frames set by the Court.” Aff. to Statement of Facts at 53.

C. This Action

Wheeler brought suit under 42 U.S.C. § 1983 against Officers Kidder, Sexton,

and Darnell in their individual and official capacities.4 Wheeler alleged that the

officers committed the following violations of his constitutional rights:

(1) unreasonable seizure, in violation of the Fourth and Fourteenth Amendments;

(2) deprivation of liberty and property without due process, in violation of the

3

The content of the questions and answers is not in the record.

4

Wheeler also sued Officer Perry, former Searcy Police Department Police

Chief Eric Webb, and the City of Searcy, Arkansas, but the district court dismissed

the claims against them with prejudice.

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Fourteenth Amendment;5 (3) deprivation of the right to a speedy trial, in violation of

the Sixth Amendment; and (4) cruel and unusual punishment and excessive bail, in

violation of the Eighth Amendment.6

1. First Motion for Summary Judgment

The officers moved for summary judgment, arguing that probable cause

supported Wheeler’s arrest and that they were therefore entitled to qualified

immunity.

Wheeler argued in response that Officer Sexton’s sworn “affidavit contain[ed]

two glaring omissions: (1) that Langley . . . recanted his [original] statement and (2)

that the December 2017 cadaver-dog searches uncovered no evidence of human

remains or evidence connected to Green.” Wheeler, 2020 WL 2758898, at *6

(footnote omitted).

Upon review, the court found it was “undisputed that [Officers] Sexton,

Kidder, and Darnell knew that, contrary to the warrant affidavit, Langley had

renounced his initial statement and that Green’s body was never recovered. . . . [and]

that the officers appeared before Judge Edwards and sought a warrant for Wheeler’s

arrest based on Sexton’s affidavit.” Id. According to the court, the warrant affidavit’s

description of “Langley’s initial statement was arguably crucial to a finding of

probable cause.” Id. The warrant affidavit treated Langley’s subsequent recantations

as nonexistent.

5

The district court concluded that Wheeler’s claim for relief under § 1983 based

on a pretrial deprivation of liberty was governed by the Fourth Amendment’s

prohibition of unreasonable seizures as opposed to due process.

6

Wheeler also alleged intentional infliction of emotional distress under

Arkansas law against the officers. The district court denied summary judgment to the

officers on that claim based on its conclusion that “the veracity of the warrant

affidavit at issue is questionable.” Wheeler, 2020 WL 2758898, at *8.

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With respect to the affidavit’s statements about the cadaver dogs, the court

found this “affidavit falsely indicated that cadaver dogs had located Green’s

remains.” Id. While the cadaver dogs showed interest in the area around the deer

stand, they never recovered physical evidence of a dead body. In fact, Green’s

remains have never been found.

The court removed the paragraph from the affidavit describing Langley’s initial

statement and the paragraph about the recovery of Green’s remains. The court

determined that, “[a]fter editing out the incomplete and false portions of the warrant

affidavit, the remaining information was insufficient to establish that Green was dead

and that his death was caused by the criminal act of another person.” Id. at *7. The

district court determined that the officers were not entitled to qualified immunity on

the individual-capacity claims for unreasonable seizure.

2. Second Motion for Summary Judgment

Thus, after the district court’s first summary-judgment order, the claims

remaining were Wheeler’s individual-capacity claims against Officers Kidder,

Sexton, and Darnell, alleging that they violated his Fourth Amendment rights by

knowingly or recklessly omitting material facts from the warrant affidavit. The

officers filed a second motion for summary judgment, relying on Messerschmidt.

They argued that under Messerschmidt, McCoy’s approval of the warrant affidavit

entitled them to qualified immunity. In Messerschmidt, the plaintiffs argued that

officers’ search of their home violated the Fourth Amendment because the search

warrant was overbroad. 565 U.S. at 544. The issue was whether the officers were

entitled to qualified immunity even if the search warrant was not properly issued. Id.

at 546. The Supreme Court set forth several reasons why a reasonable officer would

have believed that probable cause supported the search warrant, including “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.” Id. at

553.

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The district court distinguished Messerschmidt from the present case, pointing

out that it “did not involve a charge that officers knowingly or recklessly included

false or misleading information in an arrest warrant application.” Wheeler, 2020 WL

6141041, at *4. The district court also relied on our precedent that following a

prosecuting attorney’s legal advice “does not automatically cloak one with qualified

immunity, but rather, is used to show the reasonableness of the action taken.” Id. at

*5 (quoting E-Z Mart Stores, Inc. v. Kirksey, 885 F.2d 476, 478 (8th Cir. 1989)).

The district court concluded that “no question [existed] 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.”

Id. The court determined that “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.” Id. As a result, the court

denied the officers’ second motion for summary judgment.

II. Discussion

The officers appeal the district court’s opinion and order denying their second

motion for summary judgment. See Notice of Appeal at 1, Wheeler v. City of Searcy,

No. 4:18-cv-00859-SWW (E.D. Ark. 2020), ECF No. 74.

We review de novo a district court’s denial of summary judgment, and we view

the evidence in the light most favorable to the non-movant. Banks v. Hawkins, 999

F.3d 521, 524 (8th Cir. 2021). “On interlocutory appeal from a denial of qualified

immunity, though, ‘we are constrained by the version of the facts that the district

court assumed or likely assumed in reaching its decision.’” Id. (quoting Thompson v.

Murray, 800 F.3d 979, 983 (8th Cir. 2015)). Unless the record blatantly contradicts

the district court’s version of the facts, “‘our jurisdiction is limited to resolving

abstract questions of law related to the qualified-immunity determination’—that is,

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the purely legal questions of ‘whether a dispute identified by the district court is

material’ and ‘whether the allegedly infringed federal right was clearly established.’”

Id. (quoting Thompson, 800 F.3d at 982–83). “Thus, a defendant challenging the

denial of a motion for summary judgment on the basis of qualified immunity ‘must

be prepared to concede the best view of the facts to the plaintiff and discuss only the

legal issues raised by the appeal.’” K.W.P. v. Kan. City Pub. Schs., 931 F.3d 813, 821

(8th Cir. 2019) (quoting Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007)).

To determine whether an official is entitled to qualified immunity, we conduct

a two-part test: “(1) whether the facts shown by the plaintiff make out a violation of

a constitutional or statutory right, and (2) whether that right was clearly established

at the time of the defendant’s alleged misconduct.” Masters v. City of Independence,

998 F.3d 827, 835 (8th Cir. 2021) (quoting Brown v. City of Golden Valley, 574 F.3d

491, 496 (8th Cir. 2009)).

In its first summary-judgment order, the district court determined that the

officers violated Wheeler’s Fourth Amendment rights by submitting a false and

misleading affidavit in support of the arrest warrant. See Wheeler, 2020 WL 2758898,

at *5–7; see also Wheeler, 2020 WL 6141041, at *3–4.

The officers, however, did not appeal the first summary-judgment order. They

have appealed only the district court’s order denying their second motion for

summary judgment. We therefore address a narrow issue: whether the officers “are

entitled to qualified immunity because they reasonably relied on the advice of

counsel.” Second Mot. for Summ. J. at 1, ¶ 3, Wheeler v. City of Searcy, No.

4:18-cv-00859-SWW (E.D. Ark. 2020), ECF No. 62.7 The officers argue that

7

“Because the only order of the district court designated in [the officers’] notice

of appeal was [the opinion and order denying their second motion for summary

judgement], we conclude that the scope of this appeal is limited to review of that

order . . . .” Midyett v. Wilkie, 818 F. App’x 585, 585 (8th Cir. 2020) (unpublished per

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Messerschmidt’s holding “is squarely on point with this case.” Appellants’ Br. at 6.

According to the officers, the same facts that afforded the officers qualified immunity

in Messerschmidt are present in this case: the officers “did not hide anything from

[the prosecuting attorney]. They worked with her in a lengthy process to develop a

probable cause affidavit that they submitted to the judge.” Id. Essentially, the officers

are arguing that Messerschmidt clearly establishes that they did not violate Wheeler’s

constitutional rights. We disagree and distinguish this case from Messerschmidt on

its facts.

“Where the alleged Fourth Amendment violation involves a search or seizure

pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the

clearest indication that the officers acted in an objectively reasonable manner or . . . in

‘objective good faith.’” Messerschmidt, 565 U.S. at 546 (citing United States v. Leon,

468 U.S. 897, 922–23 (1984)). But “the fact that a neutral magistrate has issued a

warrant authorizing the allegedly unconstitutional search or seizure does not end the

inquiry into objective reasonableness.” Id. at 547. The Supreme Court “ha[s]

recognized an exception allowing suit when ‘it is obvious that no reasonably

competent officer would have concluded that a warrant should issue.’” Id. (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)). “The Court in Leon identified four

situations that per se fail to satisfy the [Leon] good[-]faith exception. In these

situations, ‘the officer will have no reasonable grounds for believing that the warrant

was properly issued.’” United States v. Underwood, 725 F.3d 1076, 1085 (9th Cir.

2013) (quoting Leon, 468 U.S. at 922–23).

curiam) (citing Fed. R. App. P. 3(c)(1) (providing that the notice of appeal must

designate the judgment, order, or part thereof being appealed)). In the officers’ second

motion for summary judgment, the legal issue was specifically limited to whether

“McCoy’s approval of the warrant affidavit entitles them to qualified immunity.”

Wheeler, 2020 WL 6141041, at *4; see also Second Mot. for Summ. J. at 1, ¶ 3

(“Defendants are entitled to qualified immunity because they reasonably relied on

advice of counsel.”).

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One of those situations occurs when “the affiant recklessly or knowingly placed

false information in the affidavit that misled the issuing judge.” Id. (citing Leon, 468

U.S. at 922–23). “[T]he deference accorded to a magistrate’s finding of probable

cause does not preclude inquiry into the knowing or reckless falsity of the affidavit

on which that determination was based.” Leon, 468 U.S. at 914. “Indeed, ‘it would

be an unthinkable imposition upon [the magistrate’s] authority if a warrant affidavit,

revealed after the fact to contain a deliberately or recklessly false statement, were to

stand beyond impeachment.’” Id. at 914 n.12 (alteration in original) (quoting Franks

v. Delaware, 438 U.S. 154, 165 (1978)).

Therefore, “[a] fourth amendment violation occur[s] if [an officer’s] probable

cause statement contained a ‘“deliberate falsehood”’ or he acted with ‘“reckless

disregard for the truth”’ when he prepared it.” Murray v. Lene, 595 F.3d 868, 872 (8th

Cir. 2010) (quoting Bagby v. Brondhaver, 98 F.3d 1096, 1098 (8th Cir. 1996)).

“Omissions . . . can vitiate a warrant if [the aggrieved party] proves” two things.

United States v. Ketzeback, 358 F.3d 987, 990 (8th Cir. 2004). First, the aggrieved

party must prove “that facts were omitted with the intent to make, or in reckless

disregard of whether they make, the affidavit misleading.” Id. (quoting United States

v. Allen, 297 F.3d 790, 795 (8th Cir. 2002)). Second, the aggrieved party must prove

“that the affidavit, if supplemented by the omitted information, could not support a

finding of probable cause.” Id. (quoting Allen, 297 F.3d at 795). “We have held that

‘recklessness may be inferred from the omission of information from an affidavit

. . . only when the material omitted would have been clearly critical to the finding of

probable cause.’” Murray, 595 F.3d at 872 (alteration in original) (quoting United

States v. Ozar, 50 F.3d 1440, 1445 (8th Cir. 1995)).

Messerschmidt did not involve an allegation that the officers who applied for

a search warrant intentionally or recklessly provided false information to the neutral

magistrate. See 565 U.S. at 547 n.2 (“There is no contention before us that the

affidavit was misleading in omitting any of the facts . . . .”). Instead, at issue was the

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validity of a potentially overbroad warrant. See Messerschmidt, 556 U.S. at 544. “The

warrant authorized a search for all guns and gang-related material, in connection with

the investigation of a known gang member for shooting at his ex-girlfriend with a

pistol-gripped sawed-off shotgun, because she had ‘call[ed] the cops’ on him.” 565

U.S. at 539 (alteration in original). The plaintiffs brought suit under § 1983 against

the officers, “alleging that the search violated their Fourth Amendment rights because

there was not sufficient probable cause to believe the items sought were evidence of

a crime.” Id. More specifically, the plaintiffs asserted that “there was no basis to

search for all guns simply because the suspect owned and had used a sawed-off

shotgun, and no reason to search for gang material because the shooting at the ex-

girlfriend for ‘call[ing] the cops’ was solely a domestic dispute.” Id. (alteration in

original). A neutral magistrate had issued the challenged warrant. Id.

Rather than address probable cause, the Supreme Court determined that even

if the officers were mistaken in their “judgment that the scope of the warrant was

supported by probable cause,” the officers were not “plainly incompetent.” Id. at 553

(quoting Malley, 475 U.S. at 341). The Supreme Court then set forth facts

“support[ing] . . . the conclusion that an officer could reasonably have believed that

the scope of the warrant was supported by probable cause.” Id. The Court cited “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.” Id.

Furthermore, the Court noted that before the officer sought to have the magistrate

issue the warrant, the officer “conducted an extensive investigation into [the

perpetrator’s] background and the facts of the crime” and then “prepared a detailed

warrant application that truthfully laid out the pertinent facts.” Id. (emphasis added).

The omitted facts concerning the perpetrator’s “arrest and conviction records

. . . would only have strengthened the warrant.” Id. at 554. The officer “then

submitted the warrant application for review by . . . another superior officer . . . and

a deputy district attorney, all of whom approved the application without any apparent

misgivings.” Id. As a result, the Court could not say “that ‘no officer of reasonable

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competence would have requested the warrant.’” Id. (quoting Malley, 475 U.S. at 346

n.9).

According to the Court, “a contrary conclusion would mean not only that [the

officers] were ‘plainly incompetent,’ but that their supervisor, the deputy district

attorney, and the Magistrate were as well.” Id. (quoting Malley, 475 U.S. at 341).

Their review of the warrant application was relevant in determining “whether [the

officer’s] conduct in [that] case was in fact objectively reasonable.” Id. at 555

(alterations in original) (quoting Malley, 475 U.S. at 345 n.8). However, “because the

officers’ superior and the deputy district attorney are part of the prosecution team,”

the Court noted that “their review also cannot be regarded as dispositive.” Id. at 554.

Instead, the Court explained, “[t]he fact that the officers secured these approvals is

certainly pertinent in assessing whether they could have held a reasonable belief that

the warrant was supported by probable cause.” Id. at 555.

Because Messerschmidt did not involve a claim that officers obtained a warrant

based on a misleading affidavit, its discussion of the officers’ reliance on the

prosecuting attorney’s advice is inapplicable to the present case.8 Additionally, even

8

For the same reasons that the officers’ reliance on Messerschmidt is misplaced,

so, too, is their reliance on Nord. As the district court explained:

Defendants also cite 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 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

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if Messerschmidt were applicable, Prosecutor McCoy denied advising the officers on

whether to omit the recantation and did not agree that she advised them on the

language about the dog search.

As a result, we hold that the district court did not err in denying the officers’

second motion for summary judgment and rejecting their argument that they are

entitled to qualified immunity because they reasonably relied on Prosecutor McCoy’s

advice in crafting a misleading arrest-warrant affidavit.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

COLLOTON, Circuit Judge, concurring.

I concur in the opinion of the court with the following understandings.

First, because the officers did not appeal the district court’s order denying their

first motion for summary judgment, the court expresses no view on the merits of that

order. In particular, the decision does not address whether the district court properly

analyzed the plaintiff’s claims regarding Detective Sexton’s affidavit by “removing”

paragraphs from which the officer allegedly omitted information, rather than by

supplementing the affidavit with the omitted information. See United States v.

Ketzeback, 358 F.3d 987, 990 (8th Cir. 2004). Nor does the decision address whether

the disputed omissions would have been “clearly critical” to the issuing judge’s

finding of probable cause, Murray v. Lene, 595 F.3d 868, 872 (8th Cir. 2010), or

whether the officers would be entitled to qualified immunity (independent of any

Messerschmidt, Nord did not involve a claim that officers obtained a

warrant based on a misleading affidavit.

Wheeler, 2020 WL 6141041, at *4 n.16.

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advice of counsel), even if a corrected affidavit would have been insufficient to

establish probable cause to arrest. See Bagby v. Brondhover, 98 F.3d 1096, 1099 (8th

Cir. 1996). Those questions are not presented by this appeal, because the officers

challenge only the order denying the second motion for summary judgment.

Second, while Messerschmidt v. Millender, 565 U.S. 535 (2012), did not

involve advice from a prosecutor to officers about information omitted from an

affidavit in support of an application for a warrant, the decision in this case does not

say that such advice would never be relevant to a qualified-immunity inquiry. If, for

example, officers consult in good faith with a prosecuting attorney about whether

particular information gathered during an investigation should be included in an

affidavit, and the attorney advises that the information is immaterial and may be

omitted, that fact may be relevant to whether the officers were “plainly incompetent”

in declining to include the information, see id. at 554—even if a court later concludes

that the omitted information was material to a determination of probable cause.

This case involves two asserted omissions: one concerning a partial

recantation by witness Langley and another about the nature of evidence found at the

scene of a search by cadaver dogs. On the latter, the disputed affidavit refers to

“evidence” found confirming “information” from “sources” that the victim’s body

was disposed of at the location of the dog search. The officers believed that a

positive indication by cadaver dogs to the scent of decomposing human remains was

“evidence” that the victim’s body had been located there, even though no remains

were found. But the affidavit did not explain the nature of the “evidence” or report

the absence of human remains. The district court thought the affidavit “falsely

indicated” that the dogs had located human remains.

The officers argue that they relied on advice from a prosecuting attorney in

crafting the affidavit, but the evidence is not undisputed that the attorney counseled

the officers that the challenged omissions were appropriate. The prosecutor testified

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that she did not advise the officers to omit information about witness Langley’s

recantation. R. Doc. 67-1, at 27; see R. Doc. 64-3, at 2. On the matter of the search

by cadaver dogs, too, her testimony does not accord entirely with the position of the

officers. One officer averred that the prosecuting attorney “approved the wording”

of the affidavit on this subject, and another said that she “contributed to the

paragraph.” But the prosecutor did not confirm those statements, and she testified

that she did not know that any officer told her about information obtained from

sources indicating that the victim’s body was disposed of at the location of the search.

R. Doc. 67-1, at 28. Without that knowledge, she presumably was not in a position

to give informed advice about the wording of the disputed paragraph.

In this posture, we must take the evidence in the light most favorable to the

plaintiff, even if a jury later could reach a different conclusion. On this record, given

the prosecutor’s testimony, a rational jury could find that the officers did not rely on

her informed legal advice in making the challenged omissions or statements in the

affidavit. Accordingly, the district court properly denied the second motion for

summary judgment, which was based entirely on Messerschmidt and asserted reliance

on counsel.

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