                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                  July 8, 2014
                                    PUBLISH                  Elisabeth A. Shumaker
                                                                 Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT


 MICHAEL D. LEATHERWOOD,

       Plaintiff - Appellee,

 v.                                                    No. 13-6152

 DENISE WELKER; MARK
 PURSLEY; MARK EGBERT;
 SHANNON HAZEN; KAREN
 WHITE; CHRIS HUDSON; DEBBIE
 WILKERSON; OFFICER RUSSELL;
 OFFICER DANGERFIELD,

       Defendants - Appellants.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
                    (D.C. No. 5:11-CV-00934-C)


Devan A. Pederson, Assistant Attorney General, Oklahoma Attorney General’s
Office, Litigation Division, Oklahoma City, Oklahoma, for Defendants -
Appellants.

Michael D. Leatherwood, Pro Se.

Mark A. Hiller (and Mark T. Stancil of Robbins, Russell, Englert, Orseck,
Untereiner & Sauber, LLP, on the brief), Washington, D.C., for Plaintiff -
Appellee.


Before KELLY, O’BRIEN, and MATHESON, Circuit Judges.
KELLY, Circuit Judge.

      Defendants-Appellants appeal from an order of the district court denying

their motion for summary judgment based on qualified immunity. Leatherwood v.

Welker, No. CIV-11-934-C, 2013 WL 3058078 (W.D. Okla. June 17, 2013); Aplt.

App. 431-37. Plaintiff-Appellee Michael Leatherwood initiated this litigation

seeking declaratory and monetary relief under 42 U.S.C. § 1983 for violation of

his constitutional rights stemming from the search of his house while he was a

probationer in Oklahoma. Aplt. App. 21-32. Defendants are various employees

of the Oklahoma Department of Corrections Probation and Parole Division who

participated in or authorized the search. Id. at 431-32. The district court denied

Defendants’ motion for summary judgment based on qualified immunity, finding

that “questions of material fact remain regarding the existence of reasonable

suspicion” for the search. Leatherwood, 2013 WL 3058078, at *4. Exercising

jurisdiction under 28 U.S.C. § 1291, we reverse.



I.    Jurisdiction

      Ordinarily, denials of summary judgment are not appealable final decisions

under 28 U.S.C. § 1291. Estate of Booker v. Gomez, 745 F.3d 405, 409 (10th

Cir. 2014). The denial of summary judgment based on qualified immunity,

however, is immediately appealable to the extent it turns on abstract issues of

law. Id. Thus, we may review “(1) whether the facts that the district court ruled

                                       -2-
a reasonable jury could find would suffice to show a legal violation, or (2)

whether that law was clearly established at the time of the alleged violation.” Id.

(quoting Roosevelt–Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013))

(internal quotation marks omitted).

      We do not have jurisdiction, however, over questions of evidentiary

sufficiency, “i.e., which facts a party may, or may not, be able to prove at trial.”

Johnson v. Jones, 515 U.S. 304, 313 (1995). If the parties ask us to determine

“nothing more than whether the evidence could support a finding that particular

conduct occurred,” we are without jurisdiction. Behrens v. Pelletier, 516 U.S.

299, 313 (1996).

      Frequently, we are called upon to review qualified immunity determinations

where developed facts in the record support qualified immunity. In Plumhoff v.

Rickard, 134 S. Ct. 2012 (2014), the Supreme Court reversed the Sixth Circuit

which had affirmed a district court’s denial of qualified immunity in an excessive

force case. The Court agreed with the Sixth Circuit on jurisdiction (though not on

the merits). As to jurisdiction, the Court stated:

      The District Court order in this case is nothing like the order in
      Johnson. Petitioners do not claim that other officers were
      responsible for shooting Rickard; rather, they contend that their
      conduct did not violate the Fourth Amendment and, in any event, did
      not violate clearly established law. Thus, they raise legal issues;
      these issues are quite different from any purely factual issues that the
      trial court might confront if the case were tried; deciding legal issues
      of this sort is a core responsibility of appellate courts, and requiring
      appellate courts to decide such issues is not an undue burden.

                                         -3-
Id. at 2019. The Supreme Court viewed the case (on the jurisdictional point) as

indistinguishable from Scott v. Harris, 550 U.S. 372, 380-81 (2007), where the

Court, aided by a videotape, analyzed qualified immunity and instructed that a

court cannot ignore what is plainly supported by the record. See Plumhoff, 134 S.

Ct. at 2020.

      Mr. Leatherwood argues that the district court’s ruling was a determination

of evidentiary sufficiency and is not reviewable. Aplee. Supp. Br. 17.

Defendants disagree. See Aplt. Br. 3-4. 1 The district court seemed to recognize

that the material facts were undisputed. 2 Leatherwood, 2013 WL 3058078, at *3.

      The issue in this case is whether the Defendants’ conduct violated the

Fourth Amendment with an unreasonable search and the method of analysis

should be the same as in Plumhoff and Scott. Fourth Amendment reasonableness

is a legal question, and on this record it is plainly quite different than any factual

issues which might be resolved at a trial. See Medina v. Cram, 252 F.3d 1124,

1131 (10th Cir. 2001). In other words, we need not engage in second-guessing

      1
         Defendants challenge one factual finding as “blatantly contradicted” by
the record. Aplt. Br. 32. We have jurisdiction to review that claim, Lewis v.
Tripp, 604 F.3d 1221, 1225-26 (10th Cir. 2010), but do not need to address it.
      2
        While the district court articulated its conclusion with the phrase
“questions of fact remain” about Fourth Amendment reasonableness, it is clear
from the order that the court, based on the undisputed facts, simply could not say
as a matter of law that Defendants’ conduct was reasonable. See Leatherwood,
2013 WL 3058078, at *3-*4. That is a determination we have jurisdiction to
review.

                                         -4-
whether the evidence supports an inference “that particular conduct occurred.”

Behrens, 516 U.S. at 313. Defendants ask us to review primarily legal issues, and

we have jurisdiction to do so.



II.   Background

      We view the facts in the light most favorable to Mr. Leatherwood as the

party opposing summary judgment and draw reasonable inferences in his favor.

Tolan v. Cotton, 134 S. Ct. 1861, 1866, 1868 (2014). In this context, when the

district court concludes certain facts could be found in favor of the plaintiff, we

ordinarily take those facts as true. Johnson v. Jones, 515 U.S. 304, 319 (1995);

Booker, 745 F.3d at 409-10. When the district court does not set forth with

specificity the facts it relied on, we may look to the record to determine which

facts the court likely assumed. Behrens, 516 U.S. at 313 (citing Johnson, 515

U.S. at 319). The facts in the light most favorable to Mr. Leatherwood are as

follows:

      Mr. Leatherwood was convicted of crimes in Oklahoma and placed on

probation. Leatherwood, 2013 WL 3058078, at *1. His supervising probation

officer, Defendant Denise Welker, received a phone call and an e-mail that led

her to suspect that Mr. Leatherwood had violated various conditions of his




                                         -5-
probation. Id. at *1-*2. 3 The district court did not set forth with specificity the

contents of these communications, but Mr. Leatherwood did not dispute them.

      The phone call, received July 27, 2009, was placed by Mr. Leatherwood’s

former wife. Aplt. App. 40-41, 421. She alleged personal knowledge that Mr.

Leatherwood had raped his current girlfriend, Regina Wood, who had filed a

restraining order against him. Id. When Defendant Welker asked the former wife

whether Mr. Leatherwood possessed any weapons, she said Mr. Leatherwood

might have firearms in his truck, in a safe, and on a shelf in his garage. Aplee.

Supp. Br. 5; Aplt. App. 78, 137-38, 246-47, 396. The conditions of Mr.

Leatherwood’s probation prohibited him from possessing firearms and committing

crimes. Aplt. App. 235.

      The e-mail, sent September 4 and read September 7, 2009, Leatherwood,

2013 WL 3058078, at *2, Aplt. App. 77, 107-08, was forwarded to Defendant

Welker by an assistant district attorney, who received it from a confidential

informant. Aplt. App. 42, 422. The confidential informant relayed information

from an anonymous source who alleged personal knowledge that Mr.

Leatherwood had sent e-mails of a sexual nature to Ms. Wood, and that he had

      3
         Defendants complain that the district court erroneously disregarded “a
litany of facts” they claim Defendant Welker relied on in forming reasonable
suspicion. See Leatherwood, 2013 WL 3058078, at *2; Aplt. Br. 29-31. Mr.
Leatherwood disputed those facts in his summary judgment response. Aplt. App.
423. Because at this stage we view the facts in the light most favorable to Mr.
Leatherwood, Tolan, 134 S. Ct. at 1866, we, like the district court, will consider
only the telephone call and e-mail.

                                         -6-
alcohol and sexual materials and devices in his home. Id. at 42, 77, 107-08, 422.

The conditions of Mr. Leatherwood’s probation prohibited him from possessing

pornography or sexually oriented materials. Id. at 234.

       On September 16, 2009, Defendant Welker met with other defendants to

discuss the allegations against Mr. Leatherwood and obtained permission to

conduct a warrantless search of his home. Leatherwood, 2013 WL 3058078 at *1,

*3; Aplt. App. 43. Defendants found firearms in the search. Leatherwood, 2013

WL 3058078 at *1.



III.   Qualified Immunity Analysis

       To defeat defendants’ motion for summary judgment, Mr. Leatherwood

must show that defendants violated a federal right and that the right was clearly

established at the time of the violation. Tolan, 134 S. Ct. at 1865-66. Because

Mr. Leatherwood complains of a warrantless search of his house, the right at issue

is the Fourth Amendment right against unreasonable searches. See id. at 1865.

       There are two ways to evaluate the reasonableness of a warrantless

probation search. Under the Griffin “special needs exception,” a probation search

will satisfy the Fourth Amendment if it is carried out “pursuant to state law which

itself satisfies the Fourth Amendment’s reasonableness requirement.” United

States v. Lewis, 71 F.3d 358, 361 (10th Cir. 1995) (citing Griffin v. Wisconsin,

483 U.S. 868, 873 (1987)). Under the Knights “totality-of-the-circumstances

                                        -7-
exception,” we evaluate the reasonableness of the search under general Fourth

Amendment principles. United States v. Warren, 566 F.3d 1211, 1216 (10th Cir.

2009) (citing United States v. Knights, 534 U.S. 112 (2001)). Because we think it

clear that the search of Mr. Leatherwood’s home was reasonable under general

Fourth Amendment principles, we need not address whether the search complied

with the Oklahoma Department of Corrections’ probation search policy. See

United States v. Mabry, 728 F.3d 1163, 1166 n.3 (10th Cir. 2013).

      “A probationer’s home, like anyone else’s, is protected by the Fourth

Amendment’s requirement that searches be ‘reasonable.’” Griffin, 483 U.S. at

873. The reasonableness of a search is assessed by balancing the degree of

intrusion into an individual’s privacy with the need for the search to promote

governmental interests. Knights, 534 U.S. at 118-19. A defendant’s “status as a

probationer subject to a search condition informs both sides of that balance.” Id.

at 119. Specifically, probation search conditions considerably diminish the

probationer’s reasonable expectation of privacy. Id. at 119-20. Mr.

Leatherwood’s probation conditions subjected his property to search “within the

policy of the Department of Corrections.” Aplt. App. 235. The relevant

Oklahoma policy allows warrantless probation searches when there is reasonable

suspicion of a probation violation or crime. Id. at 116. Given Mr. Leatherwood’s

diminished expectation of privacy as a probationer, and the State’s interest in

ensuring he did not violate the law, the search of his house was reasonable if

                                        -8-
supported by reasonable suspicion. See Knights, 534 U.S. at 121; Mabry, 728

F.3d at 1167; United States v. Tucker, 305 F.3d 1193, 1200 (10th Cir. 2002).

         Reasonable suspicion is a particularized and objective basis for suspecting

criminal activity. Mabry, 728 F.3d at 1167. To determine if reasonable suspicion

existed, “we consider both the quantity of information possessed by law

enforcement and its reliability, viewing both factors under the totality of the

circumstances.” Id. (internal quotation marks and citation omitted). The

reliability of informant information is determined by “the credibility or veracity

of the informant, the basis of the informant’s knowledge, and the extent to which

the police are able independently to verify the reliability of the tip.” Tucker, 305

F.3d at 1201 (quoting United States v. Leos-Quijada, 107 F.3d 786, 792 (10th Cir.

1997)) (internal quotation marks omitted). Mr. Leatherwood’s primary argument

regarding reasonable suspicion is that the call from his former wife and the e-mail

were not sufficiently reliable. Aplt. Supp. Br. 53-60. He contends that his former

wife had a motive to fabricate information, the e-mail was from an anonymous

source, and neither was corroborated or contained predictive information. Id. at

55-57.

         Generally, anonymous tips must be corroborated and bear “sufficient

indicia of reliability” to support reasonable suspicion. Florida v. J.L., 529 U.S.

266, 270 (2000). But probation searches may be premised on less reliable

information than that required in other contexts. Griffin, 483 U.S. at 879.

                                          -9-
Accordingly, the Supreme Court in Griffin approved (under a special needs

analysis) of a tip that came from a police officer but relayed hearsay information

from an unidentified third party, was uncorroborated, and asserted only the

possible existence of a violation. Id. at 878-80. In Tucker we approved of an

uncorroborated tip from a known citizen-informant relaying information from

anonymous sources where those sources alleged they had been in the defendant’s

home and witnessed the violation. Tucker, 305 F.3d at 1196, 1201. And we have

approved of probation searches based on anonymous or vague tips in other cases.

See, e.g., United States v. Carter, 511 F.3d 1264, 1269 (10th Cir. 2008); United

States v. Trujillo, 404 F.3d 1238, 1245 (10th Cir. 2005); Lewis, 71 F.3d at 362-

63.

      In this context, the tips received by Defendant Welker were sufficiently

reliable to create reasonable suspicion. Defendant Welker knew the identity of

Mr. Leatherwood’s former wife and spoke directly with her on the phone. She

alleged personal knowledge that Mr. Leatherwood committed rape, the offense for

which he was serving supervised release, and provided the name of Mr.

Leatherwood’s current girlfriend and alleged victim. The former wife also

provided personal and detailed knowledge of the potential location of firearms in

Mr. Leatherwood’s home. While Mr. Leatherwood asserts his former wife had

clear motivation to lie, presumably because she was the victim of his crime, it

was not unreasonable for Defendant Welker to assess her credibility and rely on

                                       - 10 -
the information. The former wife was a known informant and could be held

accountable if her allegations turned out to be fabricated. See J.L., 529 U.S. at

270. As to the e-mail, while the content of the allegations was provided by an

anonymous informant, the person relaying the information and the assistant

district attorney who forwarded the information to Defendant Welker were

known. See Tucker, 305 F.3d at 1201. Moreover, the anonymous tipster alleged

a reliable base of knowledge—access to Mr. Leatherwood’s home. Defendants’

failure to corroborate these tips is not fatal in the probation context. Id. We

conclude that on the basis of the telephone call and e-mail, defendants had

reasonable suspicion that Mr. Leatherwood committed probation violations, and

thus the search of his home did not violate his Fourth Amendment rights.

      Even if we were to find that Mr. Leatherwood had shown a violation of his

rights sufficient to satisfy the first qualified immunity prong, he would fail on the

“clearly established” prong. See Pearson v. Callahan, 555 U.S. 223, 243-44

(2009). Given the substantial body of Tenth Circuit and Supreme Court case law

approving probation searches premised on uncorroborated and anonymous tips, it

would not have been “clear to a reasonable officer in the agents’ position that

their conduct was unlawful in the situation they confronted.” Wood v. Moss, 134

S. Ct. 2056, 2067 (2014) (internal quotation marks and formatting omitted).

      Mr. Leatherwood’s outstanding motion to strike defendants’ supplemental

authority is GRANTED, though we note that, given this disposition, the content

                                        - 11 -
of the Rule 28(j) letters is moot.

REVERSED.




                                     - 12 -
