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Kiesling v. Doc Holladay

United States Court of Appeals, Eighth Circuit

June 9, 2017

Christopher Kiesling; Katy Kiesling 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 Defendants Ross Spurlock, in his individual capacity only Defendant-Appellant Pulaski County Arkansas Defendant

          Submitted: March 8, 2017

         Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before RILEY, Chief Judge, [1] GRUENDER, Circuit Judge, and GRITZNER, District Judge. [2]

          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 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 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 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 '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 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 ...


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