156 F.3d 861 (8th Cir. 1998), 97-3422, Walden v. Carmack

Docket Nº:97-3422.
Citation:156 F.3d 861
Party Name:Bill WALDEN; Barbara White; Betty Rae Walden; and Billy G. Walden, Appellees, v. James Roy CARMACK, Sheriff, Montgomery County; Montgomery County, Arkansas, a political subdivision, State of Arkansas, Appellants.
Case Date:September 28, 1998
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 861

156 F.3d 861 (8th Cir. 1998)

Bill WALDEN; Barbara White; Betty Rae Walden; and Billy

G. Walden, Appellees,


James Roy CARMACK, Sheriff, Montgomery County; Montgomery

County, Arkansas, a political subdivision, State

of Arkansas, Appellants.

No. 97-3422.

United States Court of Appeals, Eighth Circuit

September 28, 1998

Submitted Feb. 10, 1998.

Page 862

[Copyrighted Material Omitted]

Page 863

[Copyrighted Material Omitted]

Page 864

[Copyrighted Material Omitted]

Page 865

Michelle Banks Odum, Little Rock, AR, argued, for appellant.

John P. Lewis, Hot Springs, AR, argued (John Wesley Hall, Jr., on the brief), for appellee.

Before RICHARD S. ARNOLD, 1 Chief Judge, HANSEN, Circuit Judge, and LIMBAUGH, 2 District Judge.

LIMBAUGH, District Judge.

Bill Walden, Betty Rae Walden, Billy G. Walden, and Barbara White a/k/a Barbara Stone filed suit against Sheriff James R. Carmack, Deputy Sheriff Terry Black, Deputy Sheriff Mary Williams, Deputy Sheriff Gary Grey, Deputy Sheriff J.L. Wheeler, Deputy Sheriff Shane Stovall, and Montgomery County, Arkansas under 42 U.S.C. § 1983 and supplemental state claims. Specifically, the plaintiffs alleged unreasonable search and seizure, false arrest and malicious prosecution under the Fourth Amendment; taking of property without due process under the Fifth Amendment; and unreasonable bond under the Eighth Amendment. They furthermore alleged state claims of trespass, malicious prosecution, and outrage. The defendants sought summary judgment based on the merits of the claims and on qualified immunity. The district court summarily determined that genuine issues of fact existed and denied their motion, and Carmack and Montgomery County appeal that finding. 3

Page 866


In 1992, the Arkansas State Police and the Montgomery County Sheriff's Department initiated an investigation into alleged illegal activity on real property occupied by Bill Walden, but apparently owned by Bill Walden's mother, Betty Rae Walden and Bill Walden's son, Billy G. Walden. 4 The investigation initially focused upon alleged stolen property kept on the premises; however, in 1993 the investigation expanded into alleged drug activity.

A confidential informant and Arkansas State Police Investigator Steve Clemmons visited (in an undercover capacity) the subject real property several times and spoke with Bill Walden. Some of these conversations were tape-recorded. The conversations (taped and untaped) led Arkansas State Police personnel to believe that Bill Walden was voluntarily assisting the confidential informant with setting up a methamphetamine (meth) lab on the real property, and offering to sell allegedly stolen merchandise to the confidential informant.

On March 1, 1993 Arkansas State Police Investigator Clemmons, Arkansas State Police Sergeant Phillip Wamock 5, and the confidential informant appeared before Judge William H. McKimm with an application for a search warrant for the subject Walden property. This same date, a judicial hearing was held to determine if probable cause to issue the search warrant existed. None of the defendants, nor any other law enforcement personnel from Montgomery County appeared before Judge McKimm or participated in the hearing in connection with the issuance of the search warrant.

The police officers and the confidential informant provided recorded testimony in support of the search warrant application. In addition to the tape-recorded conversations with Bill Walden, the confidential informant testified, under oath, to other conversations he had with Bill Walden. He testified as to his conversations with Bill Walden regarding the rental of a house on the property in which the confidential informant planned to set up a meth lab. He further testified as to Bill Walden's assistance in setting up the meth lab; to the presence of numerous vehicles with altered identification numbers and other assorted items on the premises; as to conversations with Bill Walden in which Bill Walden offered to sell him a Ford pick-up below the fair market value; and as to Bill Walden's possession of one or more guns.

Both Arkansas State Police officers testified as to what they observed on the real property; i.e. motor vehicles whole and in parts, and tools commonly used to disassemble cars. Investigator Clemmons testified to his conversations with Bill Walden regarding the creation of the meth lab on the real property. Sergeant Wamock testified as to his expertise in the field of auto theft and his prior contact with Bill Walden regarding an alleged stolen Ford Ranger II pick-up truck.

Investigator Clemmons testified as to the credibility and reliability of information provided by the confidential informant. Investigator Clemmons also testified that the confidential informant was considered very reliable by other law enforcement agencies and that he found the confidential informant's information provided during the current investigation to be extremely reliable and credible.

The reviewing judge found probable cause to exist that evidence of illegal controlled substance activities and stolen property would be found on the premises in question. He issued a search warrant authorizing the search of "any and all storage units, locked or unlocked; any and all rental storage units, locked or unlocked"; as well as all outbuildings, enclosures, or structures within, as well as outside, the curtilage of the personal residence

Page 867

at the described real property. The search warrant authorized the search for and seizure of drug paraphernalia, stolen property, weapons, documents relating thereto, and any and all things considered contraband or evidence of criminal activity.

On March 1, 1993 the search warrant was served on Bill Walden. At the time of the service of the warrant, he was the only one on the property in question. The warrant was executed by Sheriff Carmack, various deputy sheriffs in the Montgomery County Sheriff's Department, and various law enforcement personnel from the Arkansas State Police. The officers searched the premises and property described in the warrant over a four-day period. Numerous items were confiscated, including but not limited to, semi-automatic weapons, automobile vehicle identification plates, vehicles with altered or destroyed vehicle identification numbers, various tools, and numerous knives. The items seized were documented on an inventory list.

Bill Walden was arrested and charged with violating controlled substance laws and possessing stolen property. At his initial appearance, Judge Gayle Ford set his bond at $75,000.00. This was later reduced by Judge Ford to $25,000.00. Although Sheriff Carmack generally accepts a property bond in lieu of a cash bond, he refused to accept a property bond from Bill Walden because Bill Walden had provided him with false information with regard to a property bond in a prior incident. Bill Walden remained in custody for approximately sixty (60) days before making bond.

State forfeiture proceedings were later instituted against the subject real property pursuant to Arkansas' drug forfeiture statute, Ark.Code.Ann. § 5-64-505. It is unclear as to whether these proceedings were dismissed prior to completion, or if the forfeiture was obtained. In May 1994, the Prosecuting Attorney for Montgomery County nolle prossed all criminal charges against Bill Walden. On May 20, 1994 a number of items seized were transferred to the possession of the Federal Bureau of Investigation by order of Judge Gayle Ford. It is unclear as to the status of the remaining items, although it appears that some have been returned to the plaintiffs, while others have been retained pending further criminal investigation. 6

The plaintiffs filed a 42 U.S.C. § 1983 and state-claims action in district court in March 1996, alleging, among other points, that Sheriff Carmack, various Montgomery County deputy sheriffs, and Montgomery County violated their Fourth, Fifth, and Eighth Amendment rights in connection with the search and seizure of the property occupied by Bill Walden, the arrest of Bill Walden, and the subsequent forfeiture proceedings. The defendants filed a motion for summary judgment. They not only argued the merits of the plaintiffs' claims, but also argued that they were entitled to qualified immunity for their actions in connection with the search and seizure on March 1, 1993, the setting of the bail bond, and the initiation of a forfeiture action against the searched property. The district court 7 denied the summary judgment motion, concluding that "various factual issues" remained in dispute regarding, among other things, the issuance of the March 1, 1993 search warrant and whether the execution of the search warrant exceeded the scope of the search warrant. Defendants Carmack and Montgomery County now appeal the district court's ruling. See, Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)(a district court's denial of a claim of qualified immunity, "to the extent that it turns on an issue of law" is an appealable final decision under the collateral order doctrine).


Before embarking on a discussion and resolution of the dispute present in this appeal,

Page 868

it is necessary to clarify exactly what the dispute on appeal is and, more so, what it is not. The appellees in this appeal appear to be all of the original plaintiffs. As stated before, the only appellants of record in this matter are Sheriff Carmack and Montgomery County. 8 The real confusion lies in the substance of the legal claims before this Court.

The Court determines, that despite the broad coverage of numerous legal issues by the appellees and appellants at oral argument, and in their briefs, only the...

To continue reading