Whitlock v. Brown

• Decision Date: 24 February 2010
• Docket Number: No. 08-2800.,08-2800.
• Citation: 596 F.3d 406
• Parties: Jo WHITLOCK and Jesse Whitlock, Plaintiffs-Appellants, v. Shawn A. BROWN, individually as an Officer for the Indiana Department of Natural Resources, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

596 F.3d 406

Jo WHITLOCK and Jesse Whitlock, Plaintiffs-Appellants, v. Shawn A. BROWN, individually as an Officer for the Indiana Department of Natural Resources, Defendant-Appellee.

No. 08-2800.

United States Court of Appeals, Seventh Circuit.

Argued February 9, 2009.

Decided February 24, 2010.

Michael K. Sutherlin (argued), Sutherlin & Associates, Indianapolis, IN, for Plaintiffs-Appellants.

Frances Barrow (argued), Office of the Attorney General, Indianapolis, IN, for Defendant-Appellee.

Before POSNER and SYKES, Circuit

Judges, and DOW, District Judge.^*

SYKES, Circuit Judge.

Jo and Jesse Whitlock were camping at the Indiana Dunes State Park and found several bags and other items of property that looked as if they had been left behind at another campsite. They put the items in their truck, intending to turn them in to the park office. They then left the campground to run errands and forgot the bags were in their truck. By the time they returned a few hours later, the owner of the bags had reported them stolen. When the Whitlocks went to the park office to turn in the property, they were accused of theft.

Officer Shawn Brown of the Indiana Department of Natural Resources ("DNR") interviewed the couple. They told him they had picked up the property intending to turn it in at the park office but simply forgot. Jo Whitlock added that she decided to take the unattended bags because she was afraid "some corrupt DNR employee" would steal the absent camper's belongings. This comment was gratuitous—and foolish, too, under the circumstances. Brown thought there was probable cause for a conversion charge and applied for an arrest warrant. The Whitlocks were charged with conversion and the warrant was issued. They were arrested and spent four days in jail before being released on bond. The charges against them were later dropped.

The Whitlocks sued Brown, claiming he violated their Fourth Amendment rights by omitting exculpatory facts from his warrant application. The district court entered summary judgment for the officer, holding that he had violated the Whitlocks' rights but was nevertheless entitled to qualified immunity because a reasonable officer would have believed there was probable cause to arrest the couple for conversion. The Whitlocks appealed.

We affirm. The district court was right to apply qualified immunity, but its analysis took a wrong turn. The precise constitutional question in this case is not whether there was probable cause for the arrest but whether Brown intentionally or recklessly withheld material information from his warrant application. As such, the proper focus of the qualified-immunity inquiry is whether it would have been clear to a reasonable officer that the information allegedly omitted was material to the probable-cause determination. Under Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), we are permitted to skip directly to the second question, and we do so here. Although it is clearly established Fourth Amendment law that an officer may not intentionally or recklessly withhold material information from a warrant application, it is not clear under Indiana law that the information Brown allegedly withheld was material to the probable-cause determination for a charge of criminal conversion. Brown is therefore entitled to qualified immunity.

I. Background

Jo and Jesse Whitlock and their daughter went camping at the Indiana Dunes State Park during the July Fourth holiday week in 2005. On the morning of July 8, they were scavenging for firewood and came across several bags and other items of property at an apparently deserted campsite. They asked Dianne Miranda, a neighboring camper, whether anyone was using the site; she said she had not seen anyone there all morning. The Whitlocks picked up the bags and other items, put them in their truck, and told Miranda they would turn the property in to park authorities. (The park brochure instructed campers to report lost or found articles to the park office.) They then got into their truck to go shopping at an area mall. On their way out of the park, Jo Whitlock got into an argument with her daughter and forgot about the bags. The Whitlocks realized their mistake when they arrived at the mall but decided to finish their shopping rather than return to the park immediately. Several hours later, the Whitlocks returned to the park and went directly to their campsite. Jo Whitlock searched the bags and found a wallet containing Neil Kohlhoff's driver's license. She called "information" to get Kohlhoff's phone number, left a voicemail letting him know they were taking his bags to the park office, and provided her name and phone number so Kohlhoff could call her.

While the Whitlocks were shopping, however, Kohlhoff had returned to his campsite, found his bags missing, and reported them stolen. Park Security Officer Victor Santiago began an investigation. He spoke to Miranda, who related her earlier conversation with the Whitlocks. When the Whitlocks finally turned the bags in at the park office, the attendant on duty accused them of theft. Officer Santiago interviewed Jo Whitlock; she explained why they had picked up the bags and why they did not immediately return them to the park office. DNR Conservation Officer Shawn Brown soon arrived and took over the investigation. Brown asked Jo Whitlock to repeat her story several times. She explained that she forgot about the bags because she was arguing with her daughter as the family left the park to go to the mall. She also told the officer that she decided to take possession of the bags because she was afraid that "some corrupt DNR employee" would steal them and felt she had to "protect them from corrupt DNR employees." After taking the Whitlocks' statements, Brown called Kohlhoff to verify that he had received a voicemail from Jo Whitlock and also confirmed that all of Kohlhoff's belongings were returned.

Two days later, Brown prepared a case report describing the incident. The report contained the details of his investigation but did not include Jo Whitlock's explanation for why she and her husband forgot to stop at the park office on their way to the mall. Brown also filled out a standard form "Affidavit for Probable Cause" asserting that there was probable cause to charge the Whitlocks with criminal conversion. The probable-cause affidavit was quite sparse. Beyond identifying the Whitlocks, Kohlhoff, and the date and time of the offense, the affidavit stated only that the Whitlocks had committed a criminal conversion by taking Kohlhoff's property without permission and "keeping such property for several hours, causing time and monetary loss." Brown sent his affidavit to the Porter County prosecutor's office seeking a warrant for the Whitlocks' arrest. He testified in deposition that he also attached his more detailed case report and sent that to the prosecutor as well. This is a point of contention between the parties, however; the Whitlocks maintain that Brown withheld the case report from the prosecutor.

The Whitlocks were charged with conversion in violation of § 35-43-4-3 of the Indiana Code and an arrest warrant was issued. About a month later, they were pulled over for a license-plate violation and arrested on the conversion warrant. They spent four days in jail before being released on bond. The Porter County prosecutor quickly had a change of heart and dropped the charges. Due to file-storage constraints, the prosecutor's file was destroyed sometime in 2006.

The Whitlocks sued Brown under 42 U.S.C. § 1983 alleging a violation of their Fourth and Fourteenth Amendment rights. More specifically, they claimed Brown intentionally withheld exculpatory information from his warrant application. The parties filed cross-motions for summary judgment, and the district court entered judgment in Brown's favor. The judge held that Brown violated the Whitlocks' Fourth Amendment rights by withholding his case report from the prosecutor. The judge concluded, however, that the officer was entitled to qualified immunity because "a reasonable officer could have believed that there existed probable cause to arrest the Whitlocks for [c]onversion." The Whitlocks appealed.

II. Discussion

The Whitlocks claim that Brown violated their Fourth Amendment rights by intentionally or recklessly withholding exculpatory facts that would have influenced the warrant-issuing judge's probable-cause finding. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Brown disputes this and also argues he is entitled to qualified immunity. Qualified immunity protects police officers from suit to the extent that their actions "could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Deciding a claim of qualified immunity generally involves two inquiries: (1) has the plaintiff alleged facts that, if proved, would establish a constitutional violation; and (2) would a reasonable officer have known his actions were unconstitutional in light of clearly established law? See, e.g., Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Under Saucier these questions had to be considered sequentially, but Pearson has relaxed that protocol. 129 S.Ct. at 818 ("The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances...."). We are now permitted to sidestep the constitutional question and move directly to the question whether the law was clearly established at the time of the alleged violation. Id. We find it appropriate to do so here, but will begin by sketching the contours of the alleged constitutional violation.

Although a plaintiff generally cannot base a ...