Bowling v. Rector

• Decision Date: 26 October 2009
• Docket Number: No. 07-6284.,07-6284.
• Parties: Danny J. BOWLING, Plaintiff-Appellee, v. Joe RECTOR, individually, and as Commissioned Agent of the Oklahoma State Bureau of Investigation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

584 F.3d 956

Danny J. BOWLING, Plaintiff-Appellee, v. Joe RECTOR, individually, and as Commissioned Agent of the Oklahoma State Bureau of Investigation, Defendant-Appellant.

No. 07-6284.

United States Court of Appeals, Tenth Circuit.

October 26, 2009.

Charles A. Brandt and Robert S. Lafferrandre, Pierce, Couch Hendrickson, Baysinger & Green, L.L.P., Oklahoma City, OK, for Defendant-Appellant, Joe Rector.

April M. Davis (Stephen Jones with her on the briefs), Jones, Otjen & Davis, Enid, OK, for Plaintiff-Appellee, Danny J. Bowling.

Before LUCERO, EBEL, and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

In this interlocutory appeal, Joe Rector challenges the district court's denial of his motion for summary judgment based on qualified immunity. Danny Bowling sued Rector and eight other defendants under 42 U.S.C. § 1983, alleging that they violated his constitutional right to be free from unreasonable search and seizure when Rector applied for and received a warrant to search Bowling's house and then executed that warrant.¹ Because we conclude that Rector was entitled to qualified immunity from liability for one of Bowling's claims under § 1983, we AFFIRM IN PART, REVERSE IN PART, and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

Bowling is an Oklahoma farmer and rancher who is in the business of raising and selling cattle. For more than a decade, Bowling has been financing his cattle operations by borrowing money from Farmers Exchange Bank ("FEB") (id.) and giving FEB a security interest in his cattle.

In January of 2006, FEB discovered that 800-850 head of Bowling's cattle in which it held a security interest were missing from the pastures where FEB had inspected them the previous September. The next month, invoking a provision in Bowling's promissory note and security agreement to the effect that "default occurs if [Bowling] fails to do something which causes [FEB] to believe that it will have difficulty collecting the amount owed to it," FEB initiated a foreclosure lawsuit against Bowling in Kay County, Oklahoma, district court. (App. at 40-41.) FEB's complaint alleged that the bank had "requested to be allowed to inspect cattle that comprise collateral for its loans," but that Bowling had not allowed such an inspection. (Id.)

When Bowling was deposed in July of 2006 pursuant to the foreclosure litigation, he testified that he believed FEB had been "running around taking [his] cattle." (Id. at 295.) Bowling explained, "I have lost some cattle, yes. . . . I would assume the bank has taken it, what I have missing." (Id. at 296.) His losses of cattle, he said, had occurred in the prior "[s]ix or eight months." (Id. at 298.) When pressed as to the locations from which the missing cattle had disappeared, Bowling responded, "I can't remember exact. I know I had some in Noble County stolen. I had some from my pens. I don't know if they are stolen, if the bank has taken them or what because I have no correspondence." (Id. at 296.) He went on to testify that he was "not saying [the cattle] were stolen," but rather was "saying the bank probably got them." (Id. at 297.) He testified further that he had filed sheriff's reports in both Noble County and Kay County when his cattle disappeared.

The week after Bowling's deposition in the foreclosure litigation, FEB's president, Dennis Buss, telephoned Rector. Buss had seen Rector, a "Special Ranger" with the Oklahoma State Bureau of Investigations ("OSBI") and field inspector with the Texas and Southwestern Cattle Raisers Association ("TSCRA"), featured in a television news segment about investigations of cattle theft in Oklahoma City. During their initial conversation, Buss told Rector that the bank had "taken a deposition of a customer the previous week and that there were cattle stolen and missing." (Id. at 133.) Buss also told Rector that the bank had a security interest in the missing cattle. Buss asked Rector to meet with him and FEB's attorney and officers to discuss the situation, and Rector agreed.

At the July 14, 2006, meeting, Buss told Rector that Bowling had been selling cattle in the names of his mother and son, and that FEB had not received proceeds from any of these sales. Buss also provided Rector with a number of documents related to Bowling's loans and security agreements with FEB, as well as documents relating to certain livestock sales. Based on this information, Rector made an initial determination that "it was pretty obvious a crime had been committed" when Bowling "didn't sell the cattle in his name so that the bank could receive the proceeds" based on its security interest. (Id. at 117.) Rector advised Buss and the FEB officers that he would "conduct a criminal investigation" into the matter, "with the understanding that charges would be filed if [he] could make a case." (Id. at 118.)

Three days after meeting with the FEB personnel, Rector prepared an affidavit for a warrant to search Bowling's home. The affidavit identified Rector as a "Special Ranger . . . employed by Texas and Southwestern Cattle Raisers Association" and averred that Rector had "over fifteen years of law enforcement experience" and was "responsible for conducting investigations into criminal activity throughout the state of Oklahoma." (Id. at 149.) It further averred that Rector was commissioned by the OSBI, had statewide jurisdiction pursuant to that commission, and had "solved hundreds [of] crimes committed in the state of Oklahoma." (Id.) Having specified that items to be named in the warrant were "subject to seizure for the following reasons: Bank Fraud-Sale of Mortgaged Property," the affidavit concluded with a list of "facts tending to establish . . . grounds for issuance of the Search Warrant."² (Id. at 148, 149-50.)

After preparing the affidavit for search warrant, Rector contacted OSBI Special Agent John Laughy, who agreed to meet Rector the next morning to bring the application and affidavit for search warrant to the Kay County Courthouse. Laughy called the courthouse to ensure that Judge D.W. Boyd would be available the next morning to receive the application and affidavit. After meeting with Laughy and Rector on July 18, 2006, Judge Boyd signed the warrant, which was directed to "Any Sheriff, Police Officer, or Law Enforcement Officer in the County of Kay." (Id. at 157.) Based on "[p]robable cause having been shown . . . by the affidavit of Special Ranger Joe Rector," the warrant authorized a search of Bowling's residence for

[b]ank statements, bank records, drive in tickets³ and other documents related to the sale of cattle and cattle purchase/sale transactions, ledgers, and other records dealing with the purchase/sale of cattle. Computers, computer disks, computer hard drives and other related information storage devices. Receipts for the sale of cattle. Any papers, receipts, or other documents dealing with cattle. Large uncashed checks or large amounts of cash which could represent the proceeds from the sale of cattle Farmers Exchange Bank of Tonkawa had a lien on.

(Id. at 157 (footnote added).) The warrant further authorized a search for "articles of personal property tending to establish the identity of the person or persons in control or possession of the place or vehicle" at Bowling's address. (Id.)

Having secured the warrant, Rector and Laughy went to the Kay County sheriff's office, where they met with the undersheriff. Rector and Laughy asked if someone from the sheriff's office could accompany them as they executed the warrant. When the undersheriff told them that the office was shorthanded, Laughy called the Tonkawa, Oklahoma, police chief to ask that several of his officers attend the search. Rector and Laughy met the Tonkawa police chief and his officers in Tonkawa, where they drove to Bowling's house and executed the warrant. Rector, who was "in charge," performed the search with Laughy's assistance; the Tonkawa officers "just stood around." (Id. at 122.)

Rector testified at his deposition that "[a]t some point" when he "wasn't in the room," Laughy "moved a couch and they found some marijuana" underneath. (Id. at 122.) Rector informed the Tonkawa officers that he does not "get involved in that kind of stuff," and that "[i]f they wanted to do something to make a case, then they could handle that part of it." (Id.) Rector did not examine the marijuana, but "[s]omebody borrowed [his] camera and they took some photographs of the contraband." (Id.)

Three days after executing the warrant, on July 21, 2006, Rector submitted to Judge Boyd the Return and Inventory from the search. Rector averred that the items seized from Bowling's residence were as follows:

1. DTN computer S/N FF01148B

2. EMACHINES CPU S/N CK85BD0005130

3. Dell Laptop Inspir[on] 5150 S/N CNOW940-1261-485-2680

4. Bag of frozen mushrooms (CDS)

5. Plastic bag containing 3 bags of Marijuana

6. 2 Marijuana pipes with residue in them

7. Plastic bag with syringes in it

8. Box with several bottles of steroids and syringes in it

9. $4400.00 in cash all in 100.00 bills

10. 103 statements from R.J. O'Brien

11. 1 used check pad from Farmers Exchange Bank with Danny Bowling's name on it.

12. 3 bank statements from First National Bank of Oklahoma

13. 1 bank statement from First State Bank of Fairfax

14. 2 bank statements from Superior Federal Bank

15. 1 bank statement from Farmers Exchange Bank

16. 1 bank statement from BancFirst

17. 1 letter from the U.S. Department of Agriculture addressed to Danny Bowling

18. 1 statement from Cable One addressed to Danny Bowling

(Id. at 159.)

Bowling filed suit in federal court less than a month later, asserting a number of state-law claims as well as a claim under § 1983 for violation of his Fourth Amendment right to be free from unreasonable search and seizure. In relevant part, Bowling's complaint alleged that Rector had exceeded his limited statutory authority as an OSBI Special Ranger when he applied for a warrant...