                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-1042
                                  ___________

Zachary A. Smith,                      *
                                       *
            Appellant,                 *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the
Mark Heimer; Roger Lewis,              * Western District of Missouri.
                                       *
            Appellees.                 *        [UNPUBLISHED]
                                  ___________

                         Submitted: April 22, 2002

                              Filed: May 23, 2002
                                   ___________

Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

     Zachary Smith appeals from the district court’s adverse grant of summary
judgment in his 42 U.S.C. § 1983 lawsuit against Kansas City police detectives Mark
Heimer and Roger Lewis. We affirm in part and reverse in part.

       Mr. Smith claimed that defendants searched his house and a locked safe
therein, in violation of the United States and Missouri Constitutions.1 The

      1
       We note that the Missouri Constitution’s search and seizure provision is
co-extensive with the Fourth Amendment, see State v. Tackett, 12 S.W.3d 332, 334
constitutionality of these searches was first considered and upheld by a state court in
connection with Mr. Smith’s motion to suppress evidence at his trial for murder. In
reversing on another ground and remanding for a new trial, the Missouri Court of
Appeals also held that the evidence would support a finding that Cynthia Frost (the
mother of Mr. Smith’s child) had actual or apparent authority to consent to the house
search, but no evidence suggested that she consented to the search of the safe or had
authority to do so. Therefore, the court determined that on remand the trial court
should sustain Mr. Smith’s motion to suppress evidence found in the safe. See State
v. Smith, 966 S.W.2d 1, 7-9 (Mo. Ct. App. 1998). This civil rights lawsuit for
damages followed.

      Upon defendants’ motion, the district court granted them summary judgment
as to Mr. Smith’s claims involving the search of the house, but it denied summary
judgment as to the safe-search claims. Defendants then filed a pleading in which they
argued that they were entitled to qualified immunity on the ground that the
unconstitutionality of the safe search was not well-settled, as the state trial and
appellate courts had disagreed on the matter. The district court found this argument
persuasive, granted defendants summary judgment on the safe-search claims, and
dismissed the case with prejudice.

       We have reviewed de novo the parties’ evidence concerning the house-search
claims, see Lynn v. Deaconess Med. Ctr.-W. Campus, 160 F.3d 484, 486 (8th Cir.
1998) (standard of review), and we agree with the district court that it was reasonable
for defendants to conclude Ms. Frost had authority to consent to the house search, see
Illinois v. Rodriguez, 497 U.S. 177, 179, 189 (1990) (warrantless entry is valid when
based on consent of third party whom police, at time of entry, reasonably believe to
possess common authority over premises).


(Mo. Ct. App. 2000), and does not give rise to a private cause of action for money
damages, see Moody v. Hicks, 956 S.W.2d 398, 402 (Mo. Ct. App. 1997).
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        We cannot agree, however, that defendants were entitled to qualified immunity
on the safe-search claims. See Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir. 2001)
(reviewing de novo grant of summary judgment based on qualified immunity). First,
we do not believe defendants were entitled to qualified immunity simply because the
state trial court originally found Ms. Frost was authorized to consent to a search of
the safe--a finding, we note, that the state appeals court deemed clearly erroneous.
Further, we believe that Mr. Smith alleged a violation of a clearly established
constitutional right and that there are genuine issues of material fact as to whether
reasonable officials would have known that the alleged actions indeed violated that
right. See Hunter v. Namanny, 219 F.3d 825, 829 (8th Cir. 2000) (qualified-
immunity standard). Specifically, we have found no evidence in the record that
Ms. Frost purported to consent to the opening and damaging of the locked safe, see
Florida v. Jimeno, 500 U.S. 248, 251-52 (1991) (scope of consent is measured by
what objective, reasonable person would have understood from circumstances; “[i]t
is very likely unreasonable to think that a suspect, by consenting to the search of his
trunk, has agreed to the breaking open of a locked briefcase within the trunk”), or that
a reasonable officer would have deemed her authorized to do so, see Rodriguez,
497 U.S. at 188 (determination of consent must be judged against objective standard:
whether facts available to officer warrant man of reasonable caution to believe that
consenting party had authority).

      Accordingly, we reverse and remand on the safe-search claims. In all other
respects, we affirm the judgment of the district court.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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