                 United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 13-2889
                       ___________________________

                                   Burdette Block

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

                                    Adam Dupic

                      lllllllllllllllllllll Defendant - Appellee
                                     ____________

                    Appeal from United States District Court
                  for the District of South Dakota - Sioux Falls
                                  ____________

                             Submitted: May 13, 2014
                               Filed: July 15, 2014
                                 ____________

Before BYE, MELLOY, and BENTON, Circuit Judges.
                           ____________

MELLOY, Circuit Judge.

      Police officers briefly restrained a sleeping man while executing a search
warrant during early morning hours. The man, now Plaintiff, sued the officer who
submitted an oral affidavit in support of the warrant. Plaintiff claimed that the
affidavit violated the Fourth Amendment because the officer intentionally or
recklessly omitted material information from it. See Franks v. Delaware, 438 U.S.
154 (1978). The district court1 disagreed, concluded the officer was entitled to
qualified immunity, and granted him summary judgment. Plaintiff appeals those
rulings. We affirm.

I.    Background

        On March 19, 2009, near midnight, an on-duty patrol officer, Adam Dupic,
attempted to stop a pickup truck for a traffic violation. The truck did not immediately
pull over when Officer Dupic turned on his lights. Officer Dupic pursued the vehicle
until it stopped––only to see the driver flee on foot, leaving a passenger behind. The
passenger told Officer Dupic that the (now fleeing) driver was Leonard "Lenny"
Block. The officer checked the vehicle's registration, which listed Lenny as the
owner and gave his home address.

       Officer Dupic then coordinated with other officers to track Lenny down.
Among other things, they surveilled his home. Between 2 and 2:30 a.m., an officer
watching Lenny's home observed a man and a woman approach and enter. They left
after only a few minutes. While exiting, the man turned back and yelled, "See you
later, Lenny." Officer Dupic apprehended the man down the street. The man
admitted that he had said, "See you later, Lenny." Curiously, though, the man told
Officer Dupic that he had done so only to frustrate law enforcement and that, in fact,
Lenny was not inside.

      Officer Dupic didn't buy the man's story and sought authority to enter the home
and detain Lenny, so he called a judge to obtain a search warrant issued upon oral
testimony. S.D. Codified Laws § 23A–35–5. In describing to the judge the facts that
Officer Dupic believed created probable cause to search the home, he relayed the


      1
       The Honorable Karen E. Schreier, United States District Court Judge for the
District of South Dakota.

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above information and specifically mentioned the man who had yelled, "See you later,
Lenny." But, Officer Dupic did not tell the judge that the man later disavowed the
statement's truth or that the man claimed he'd made the comment only as a ruse to
thwart law enforcement objectives. The judge found probable cause existed and
issued a warrant to search Lenny's home. Officer Dupic and others executed the
warrant around 3:30 a.m. the same morning. While executing the warrant, the
officers temporarily restrained Lenny's brother (the plaintiff in this case).

II.   Discussion

       This court reviews de novo a district court's grant of summary judgment based
on qualified immunity. Smith v. City of Minneapolis, No. 13-1157, 2014 WL
2535298, at *2 (8th Cir. June 6, 2014). Qualified immunity protects public officials
from damage suits if their challenged conduct did not violate clearly established
constitutional rights of which a reasonable person would have known. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). A police officer who applies for a search
warrant receives qualified immunity from § 1983 liability so long as "his conduct was
objectively reasonable." Morris v. Lanpher, 563 F.3d 399, 402 (8th Cir. 2009). "A
warrant based upon an affidavit containing 'deliberate falsehood' or 'reckless
disregard for the truth' violates the Fourth Amendment" and subjects the officer who
submitted the affidavit to § 1983 liability. Bagby v. Brondhaver, 98 F.3d 1096, 1098
(8th Cir. 1996) (quoting Franks, 438 U.S. at 171)).

        In this case, Plaintiff argues that Officer Dupic should not receive qualified
immunity because Dupic deliberately or recklessly omitted material information from
his warrant application. "Omissions . . . can vitiate a warrant if [the plaintiff] proves
'first that facts were omitted with the intent to make, or in reckless disregard of
whether they make, the affidavit misleading, and, second, that the affidavit, if
supplemented by the omitted information, could not support a finding of probable
cause.'" United States v. Ketzeback, 358 F.3d 987, 990 (8th Cir. 2004) (quoting

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United States v. Allen, 297 F.3d 790, 795 (8th Cir. 2002)). See Franks, 438 U.S. at
155–56. The "material information" Plaintiff alleges Officer Dupic omitted includes
the following: (1) the man who said "See you later, Lenny" did so only to frustrate
law enforcement; and (2) the man said Lenny was not actually inside the home.

       We will assume without deciding that Officer Dupic recklessly disregarded the
misleading effect that omitting these facts would have on the judge's probable cause
determination. See Ketzeback, 358 F.3d at 990 (reasoning that the district court
"implicitly resolved the [intent inquiry] against the government, . . . so we will
assume, arguendo, that the district court properly inferred [the officer's] reckless
disregard of the misleading effect of the omitted information"); see also Hunter v.
Namanny, 219 F.3d 825, 830 (8th Cir. 2000) (noting that recklessness "may be
inferred" where the "information would have been clearly critical to the probable
cause determination"). Even so, Officer Dupic is entitled to qualified immunity if his
affidavit, supplemented by the omitted facts, still supports a probable cause finding.
See Morris, 563 F.3d at 403.2 "Probable cause exists when the warrant affidavit sets
forth facts which would lead a prudent person to believe that there is a fair probability
[the object of the search] will be found in a particular place." Ketzeback, 358 F.3d

      2
        We reject Plaintiff's invitation to expound on dicta contained in Bagby, 98
F.3d at 1099 n.2, where the court reserved the question of whether "a defendant
whose affidavit contained a deliberate falsehood should be entitled to qualified
immunity if a corrected affidavit would still provide probable cause" and noted that
a "more stringent rule may be appropriate when a liar seeks the benefit of this
defense." Instead, we'll proceed in the same manner as more recent Eighth Circuit
cases. See, e.g., Hunter, 219 F.3d at 829 (noting that even if an affidavit violates the
Fourth Amendment, the submitting officer receives qualified immunity if the affidavit
as reconstructed still provides probable cause to search); Riehm v. Engelking, 538
F.3d 952, 966–67 (8th Cir. 2008) (same). To the extent plaintiff asks us to remand
so a trier of fact may decide whether Officer Dupic deliberately misled the issuing
judge, we find no triable question of fact exists, and we refuse to "infer bad motive
absent even a scintilla of material fact supporting that inference." Morris, 563 F.3d
at 403.

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at 991 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). The inquiry is a
"commonsense, practical" one based on the "totality-of-the-circumstances." Gates,
462 U.S. at 230.

       We agree with the district court that the evidence submitted to the judge would
have been sufficient to support a probable cause finding even if Officer Dupic's oral
affidavit had included the omitted facts. The search warrant listed Lenny as the only
person or property to be seized, and Lenny's vehicle registration listed his home
address. Thus, the issue is whether there was a fair probability that Lenny would be
found at his home. There was. Lenny fled his vehicle around midnight, and Officer
Dupic requested a warrant to search for the fleeing misdemeanant at his home around
3 a.m. Officer Dupic could reasonably believe Lenny returned to his residence in the
middle of the night after fleeing his vehicle. See United States v. Powell, 379 F.3d
520, 524 (8th Cir. 2004) (noting that "[i]t was not unreasonable for the officers to
believe that [a defendant] would be at home during the early morning hours" when
the officers chose to execute an arrest warrant). Another officer observed two people
enter Lenny's home around 2 a.m., stay for a few minutes, then exit. On the way out,
one turned back and yelled, "See you later, Lenny," which created the obvious
inference that the suspect was inside. These circumstances, standing alone, supplied
a "fair probability" that Lenny would be at home. Ketzeback, 358 F.3d at 991.

     Supplying the omitted facts to a hypothetical, reconstructed warrant does not
change the conclusion. Here, we agree with and adopt the district court's analysis:

             [The man's] after-the-fact explanation for his statement
             does nothing in terms of eliminating probable cause.
             Moreover, it is not unreasonable to think that [the man],
             once approached by law enforcement, was being dishonest
             about whether Lenny was in his residence and about his
             explanation for yelling, "See you later, Lenny." It is likely
             that [the man] was attempting to prevent the police from

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             finding his acquaintance, or as [the man] stated, attempting
             to "frustrate law enforcement." Overall, the court finds that
             adding Officer Dupic's omission to form a corrected
             affidavit does not change the ultimate conclusion that
             probable cause existed to search [Lenny's home].

Adding the man's retractions to the otherwise valid warrant does not render it
constitutionally infirm. We reject Plaintiff's arguments to the contrary.

III.   Conclusion

       For the above reasons, we affirm the district court.
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