PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT J. SMITH,
Plaintiff-Appellant,

v.
                                                               No. 95-1956
SYLVIA J. REDDY, Officer;
BALTIMORE COUNTY, MARYLAND, a
body corporate and politic,
Defendants-Appellees.

ROBERT J. SMITH,
Plaintiff-Appellant,

v.
                                                               No. 96-1456
SYLVIA J. REDDY, Officer;
BALTIMORE COUNTY, MARYLAND, a
body corporate and politic,
Defendants-Appellees.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-95-137-S)

No. 95-1956 Argued: March 5, 1996
No. 96-1456 Submitted: May 5, 1996

Decided: November 27, 1996

Before ERVIN and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________
Affirmed by published opinion. Senior Judge Butzner wrote the opin-
ion, in which Judge Ervin and Judge Niemeyer joined.

_________________________________________________________________

COUNSEL

ARGUED: William Francis Gately, H. Thomas Howell, HOWELL,
GATELY, WHITNEY & CARTER, Towson, Maryland, for Appel-
lant. Michael Allan Fry, Assistant County Attorney, BALTIMORE
COUNTY OFFICE OF LAW, Towson, Maryland, for Appellees. ON
BRIEF: Kathleen D. Leslie, HOWELL, GATELY, WHITNEY &
CARTER, Towson, Maryland, for Appellant. Virginia H. Barnhart,
County Attorney, Gregory E. Gaskins, Assistant County Attorney,
BALTIMORE COUNTY OFFICE OF LAW, Towson, Maryland, for
Appellees.

_________________________________________________________________

OPINION

BUTZNER, Senior Circuit Judge:

Robert Smith, suing under 42 U.S.C. § 1983, asserts that Officer
Sylvia Reddy of the Baltimore County Police Department violated the
Fourth Amendment by arresting him and searching his house without
probable cause. Although Reddy procured warrants authorizing these
actions, Smith contends that Reddy's affidavits, filed in support of the
warrants, contain false statements and omit material facts, making her
reliance on the warrants unreasonable. In response, Reddy argues that
she is entitled to qualified immunity from civil liability because she
acted in an objectively reasonable manner. The district court agreed
with Reddy and granted her motion for summary judgment. Smith v.
Reddy, 882 F. Supp. 497 (D. Md. 1995). Smith appealed.

While Smith's appeal was pending in this court, he filed a motion
in the district court under Rule 60(b)(2) and (3) of the Federal Rules
of Civil Procedure to vacate and set aside the summary judgment.
Based on allegedly newly discovered evidence, Smith claimed that
the affidavits supporting Reddy's motion for summary judgment
included misrepresentations. The district court denied the motion, and

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Smith again appealed. Both parties have briefed the second appeal,
and we now consolidate both appeals. We review the district court's
grant of summary judgment de novo, Hodge v. Jones, 31 F.3d 157,
163 (4th Cir. 1994), and its denial of the Rule 60(b)(2) and (3) motion
for abuse of discretion. National Organization for Women v. Opera-
tion Rescue, 47 F.3d 667, 669 (4th Cir. 1995).

After careful review of the record, we find that Reddy's conduct
was objectively reasonable and affirm the summary judgment that
granted her immunity. However, we reach that conclusion by an anal-
ysis that differs somewhat from the district court's. We also affirm the
denial of the Rule 60(b) motion because Smith has not shown fraud
or misrepresentation by clear and convincing evidence.

I

The historical facts are not in serious dispute. In the early morning
of December 17, 1993, the Baltimore County Police Department was
notified that someone had fired a gun into the front door of Christo-
pher's Nightclub, causing no injuries. When the first officers arrived,
they were directed to Ms. Lisa Young, a 25-year-old who claimed to
be the intended victim of the shooting. At least one of the officers
knew that Young had a "bad" reputation in the police department.
Young was visibly intoxicated, and, initially, she was uncooperative
and reluctant to talk with the officers.

Eventually Young told the interviewing officer that she believed
Robert Smith was the gunman. She explained that she and Smith, her
boyfriend of eight months, had come to the club together in his black
Rolls Royce, which he had parked in the fire lane in front of the club.
Shortly after entering the club, Smith became jealous when Young
kissed a bartender she knew. He grabbed her by the arm and threat-
ened to kill her. The bartender later confirmed that, when Young
kissed him, the man with her became angry and led her away by the
arm. According to Young, after having a few drinks, Smith repeated
his threat to kill her twice more, once if she refused to leave the club
and a second time if she refused to get into his car. Although Young
did follow Smith to his car, she then told him she did not want to see
him again, threw the ring he had given her into the car, and returned
to the club. Back inside a few minutes later, she heard gunshots.

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Because she had seen a gun hidden under the seat of Smith's car on
other occasions, she believed he was shooting at her, so she fled to
the women's room.

The police on the scene also interviewed Mr. John Bukofsky and
Mr. Jonathan Hawes, who were in the parking lot when the shooting
occurred. Shortly before the shooting, they saw the club's bouncer
refuse to admit a young white male, wearing a red and white ski
jacket. A few moments later, they heard six gunshots and saw a gun
flashing. After the shots were fired, Hawes saw the same young man
running from the area where the shooting had occurred up a hill to the
nearby Padonia Road. Neither witness saw the person firing the shots.
Hawes gave an officer six .45 caliber shell casings and showed him
where they had been found. The club's bouncer reported that,
moments before the shooting, he had turned away a young male wear-
ing a faded blue jacket and had confiscated the driver's license pres-
ented by the youth. The name Mark Tilton and a Cockeysville address
appear on the license.

Later that day, the case was assigned to Officer Reddy. After read-
ing the initial reports and talking with the officers who had been on
the scene, Reddy interviewed Young. Young confirmed that she
believed Smith was responsible for the shooting, but admitted she had
not seen a gun in his car on the previous night. Young directed Reddy
to Smith's house. They met Smith and he agreed to talk with Reddy.
During the interview, Smith confirmed that he had accompanied
Young to the club, he had been displeased with her conduct, he had
decided to leave, they had walked to his car, and she had returned to
the club. Smith denied threatening Young, trying to force her to leave
with him, or keeping a gun in his car. He also denied shooting at the
club or even being aware of the shooting. Reddy asked Smith to con-
sent to a chemical test of his hands that would determine whether he
had recently fired a gun. Smith agreed. Despite Smith's consent, the
test was not conducted. According to Reddy, she later learned that the
test would not have been reliable because too much time had passed
since the shooting. Smith told Reddy that he owned four guns, two
AK-47s, one 30-30 Winchester, and a .32 automatic pistol.

In addition to interviewing Smith, Reddy attempted to contact
Mark Tilton. On December 18, Reddy and another officer spoke with

                    4
Ms. Deborah Tilton, who reported that her three sons, Mark (age 21),
Rodney (age 23), and Kirk (age 17), lived with her but were away for
the weekend. Asked if any of her sons had lost their wallets recently,
Ms. Tilton said Mark had lost his wallet in February, 1993 some-
where in Cockeysville. In response to further questions, she informed
the officers that her sons had not been home on the previous evening,
but that none of them owned a gun, a red and white ski jacket, or a
blue ski jacket. She said Kirk had been at his aunt's house baking
cookies at the time of the shooting. Ms. Tilton did not know where
her sons were or when they would come home, but promised to call
Reddy when they returned. Ms. Tilton never called and Reddy made
no further attempts to contact her sons.

Reddy telephoned Smith on December 20 in an attempt to gather
additional information. During the conversation, Reddy asked Smith
if he knew why the attacker fired the shots through the club's front
door rather than the window. Smith replied, "I guess that's where Lisa
was standing at." Reddy then asked Smith why he thought the attack
was aimed at Lisa. Smith fell silent. He ended the conversation after
Reddy indicated that only the attacker would know the identity of the
intended victim.

On December 21, Reddy interviewed Mr. Dennis Bazuine, who
was at the club on the night of the shooting. Although Bazuine did
not see the shooting, he had spoken with a patron who claimed he saw
it. On January 6, he introduced Reddy to Mr. Kevin Earle. Earle told
Reddy he had been in the club's parking lot at the time of the shoot-
ing. He said he saw the gunman, who was wearing a multicolored ski
jacket, firing the shots. Earle recognized him as an older gentleman
who regularly parked his black Rolls Royce in the fire lane in front
of the club. After the man fired the shots, Earle saw him run up a hill
and get into a car on Padonia Road. He did not see the black Rolls
Royce on the club's parking lot at that time. Reddy asked Earle why
he had not reported this information to the police earlier. He
explained that he did tell an officer on the scene what he had wit-
nessed. Earle also told Reddy that he did not know Young.

On January 10, 1994, Reddy sought a warrant for the arrest of Rob-
ert Smith. Three days later she sought a warrant authorizing a search
of Smith's house. Both warrants were issued and executed. Smith was

                    5
charged with attempted murder, assault, handgun violations, and reck-
less endangerment. At a pretrial hearing during which Smith chal-
lenged the state's evidence, the state court determined that sufficient
evidence existed to remand the case for trial. Following a bench trial,
Smith was acquitted of all charges.

On January 17, 1995, Smith filed this case in district court. The
district court found that Reddy was entitled to qualified immunity and
granted her motion for summary judgment. The district court denied
Smith's subsequent motion to vacate and set aside the judgment.
Smith appealed both rulings.

II

The ultimate issue presented in this appeal is whether the district
court properly granted Officer Reddy qualified immunity. Although
we conclude that Reddy is entitled to immunity, we reach that conclu-
sion by means of a somewhat different analysis than the district court.

The district court held that if a plaintiff alleges that an officer
obtained a warrant by misleading a magistrate, the plaintiff must sat-
isfy the subjective standard set forth in Franks v. Delaware, 438 U.S.
154, 155-56 (1978), to overcome a defendant's claim of qualified
immunity. The Franks standard requires "a substantial preliminary
showing that a [material] false statement knowingly and intentionally,
or with reckless disregard for the truth, was included by the affiant in
the warrant affidavit." Id.; United States v. Colkley, 899 F.2d 297, 300
(4th Cir. 1990). Rather than engaging the Franks test, we apply the
qualified immunity analysis, which examines the objective reason-
ableness of an officer's conduct. Anderson v. Creighton, 483 U.S.
635, 639 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982).
The objective standard pertaining to qualified immunity accommo-
dates the allegation of falsity because a reasonable officer cannot
believe a warrant is supported by probable cause if the magistrate is
misled by statements that the officer knows or should know are false.
See United States v. Leon, 468 U.S. 897, 922-23 (1984).

Law enforcement officers are entitled to qualified immunity from
§ 1983 liability arising from their official discretionary acts that do
not "violate clearly established statutory or constitutional rights of

                     6
which a reasonable person would have known." Harlow, 457 U.S. at
818; see also Malley v. Briggs, 475 U.S. 335, 345 (1986). In order to
determine whether an officer's conduct is immunized, this court has
formulated a three-step analysis: (1) identify the right allegedly vio-
lated, (2) decide whether that right was clearly established at the time
of the alleged violation, and, if so, (3) determine whether a reasonable
person in the officer's position would have known that his or her
actions violated that right. Pritchett v. Alford , 973 F.2d 307, 312 (4th
Cir. 1992). If the right was not clearly established at the relevant time
or if a reasonable officer might not have known his or her conduct
violated that right, the officer is entitled to immunity.

In this case, Smith alleges that Reddy violated his constitutional
right not to be arrested or searched without probable cause. Although
the arrest and search underlying Smith's claim were authorized by
warrants, he asserts that Reddy obtained the warrants by including
false statements in, and omitting material facts from, the warrant
applications. Smith's position is that, based on the facts known or
readily available to Reddy, it was unreasonable for her to conclude
that the warrants in this case were supported by probable cause. Or,
at the least, Smith argues, the record reveals genuine issues of mate-
rial fact that precluded the district court from entering summary judg-
ment before discovery.

III

Because the Fourth Amendment right to be arrested only on proba-
ble cause is clearly established, the question that remains is whether
a reasonable person in Reddy's position would have thought her
actions violated that right. The reasonableness of Reddy's conduct
does not turn on whether probable cause was, in fact, present. Hunter
v. Bryant, 112 S. Ct. 534, 536 (1991). When an officer acts pursuant
to a warrant, the pertinent question is whether the officer could have
reasonably thought there was probable cause to seek the warrant.
Anderson, 483 U.S. at 638-39; Torchinsky v. Siwinski, 942 F.2d 257,
261 (4th Cir. 1991). Qualified immunity is lost only if "the warrant
application is so lacking in indicia of probable cause as to render offi-
cial belief in its existence unreasonable." Malley, 475 U.S. at 344-45.
In other words, an officer is not denied qualified immunity for making

                     7
a mistake, as long as that mistake is reasonable under the circum-
stances.

When Reddy sought the warrants, the evidence implicating Smith
was substantial. Young's description of the evening's events gave
Smith a plausible motive for the shooting, and he had an opportunity
to fire the shots. Earle's eyewitness account provided direct evidence
that Smith was the gunman. In addition, Earle's report supported and
tended to confirm Young's account. Finally, Smith's conduct during
his second conversation with Reddy, although not unambiguously
incriminating, could certainly be viewed as suspicious. Based on
these facts, a state court determined that probable cause existed and
issued the warrants.

Smith does not contend that the warrant application did not estab-
lish probable cause. Rather, he argues that the warrant application
presented an inaccurate and misleading view of the facts. In his view,
because Reddy knew or should have known the actual facts, it was
unreasonable for her to seek the warrants. According to Smith, Reddy
should have doubted the reliability of Earle's statement because he
was not mentioned in the police reports, even though he claimed he
told the police on scene what he had witnessed. Smith also asserts that
any reasonable officer would have questioned Young's credibility in
light of her reputation and her intoxication on the night of the shoot-
ing. Finally, Smith suggests that Reddy inadequately investigated the
youth seen running from the club. When these factors are viewed
together, Smith argues, it becomes clear that probable cause was lack-
ing.

We reject Smith's argument. First, although Earle is not mentioned
in the police reports, it was not unreasonable for Reddy to rely on his
statement. Of course, it would have been better if Reddy had tried to
determine why Earle was not mentioned in the reports, but this over-
sight was not nearly as egregious as Smith portrays it. Although
Reddy spoke with Earle for the first time three weeks after the shoot-
ing, it is undisputed that Earle entered the club several minutes after
the shots were fired. Bazuine, who introduced Reddy to Earle, told
Reddy that Earle had described the shooting to him on the night it
took place. Both Earle's story and the version of the story retold by
Bazuine include several specific facts that reveal Earle's knowledge

                    8
of the crime scene. As disinterested parties, neither Earle nor Bazuine
had any apparent motive for hiding the truth. In addition, Earle's
account was consistent with the other evidence implicating Smith.
Although the judge in the criminal trial found Earle's testimony to be
unreliable, a police officer conducting an investigation is not in a
position to make the type of credibility determination that occurs in
the repose of the courtroom. See Torchinsky, 942 F.2d at 262-63.

Reddy could also have reasonably believed that Young's reputation
and intoxication did not seriously undermine the reliability of her
account. Many of the details of her statement were confirmed by dis-
interested observers and by Smith himself. Also, her account is con-
sistent with Earle's eyewitness account. Although she may not be a
model witness, the police must take complaining witnesses as they
find them. See Torchinsky, 942 F.2d at 263.

Finally, Reddy's failure to pursue the other suspect did not make
it unreasonable for her to seek warrants against Smith. Although an
officer may not disregard "readily available exculpatory evidence of
which [the officer] had been made aware," an officer's failure to pur-
sue a potentially exculpatory lead is not sufficient to negate probable
cause. Torchinsky, 942 F.2d at 264.

Weighing all of the evidence, it is clear that a reasonable police
officer in Reddy's position could find probable cause for the arrest
and search.

IV

Smith protests that he was denied discovery and that summary
judgment is inappropriate. The district court, however, committed no
procedural error.

The Supreme Court has directed that "qualified immunity questions
should be resolved at the earliest possible stage of a litigation."
Anderson, 483 U.S. at 646 n.6. The reason is that qualified immunity
is "an immunity from suit rather than a mere defense to liability; . . .
it is effectively lost if a case is erroneously permitted to go to trial."
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original).

                     9
"[E]ven such pretrial matters as discovery are to be avoided if possi-
ble, as `[i]nquiries of this kind can be peculiarly disruptive of effec-
tive government.'" Id. at 526 (quoting Harlow, 457 U.S. at 817).
Accordingly, qualified immunity should be addressed at the pleading
or summary judgment stage whenever possible. Pritchett, 973 F.2d at
313. Even so, summary judgment should be granted only when it is
appropriate, that is, when there are no genuine issues of material fact
and the movant is entitled to judgment as a matter of law. Id.

"Subjective factors involving the officer's motives, intent, or pro-
pensities are not relevant. The objective nature of the inquiry is spe-
cifically intended to limit examination into an officer's subjective
state of mind, and thereby enhance the chances of a speedy disposi-
tion of the case." Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994).
If the material facts and the reasonable inferences drawn from those
facts disclose that a reasonable officer could have believed that his or
her actions did not violate the clearly established right, the defendant
is entitled to qualified immunity on summary judgment. See Pritchett,
973 F.2d at 312-13.

V

The basis for Smith's Rule 60(b) motion is newly discovered evi-
dence which he contends reveals that Reddy and other officers made
fraudulent misrepresentations in their summary judgment affidavits.
Smith claims he found, through depositions taken in state court pro-
ceedings, evidence demonstrating that the police doubted Young's
credibility and that Reddy's supervisor did not oversee or approve her
investigation. This evidence, Smith argues, directly contradicts state-
ments made in the summary judgment affidavits. Smith also claims
that the affiants misrepresented the facts to make Earle's story seem
more plausible.

Smith's motion is without merit. To prevail, he would need to
prove the alleged misconduct by clear and convincing evidence.
Square Construction Co. v. Washington Metropolitan Area Transit
Authority, 657 F.2d 68, 71 (4th Cir. 1981). Much of the so-called new
evidence cited in Smith's brief appears in the original summary judg-
ment record. More importantly, the few inconsistencies between the

                     10
deposition testimony and the affidavits do not even approach clear
and convincing evidence of misconduct.

VI

We affirm the district court's judgment granting Reddy qualified
immunity and its denial of Smith's Rule 60(b)(2) and (3) motion.

No. 95-1956 - AFFIRMED
No. 96-1456 - AFFIRMED

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