                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-3330
                        ___________________________

                                  David Allen New

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                     Dale Denver

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Arkansas - Fayetteville
                                 ____________

                           Submitted: January 16, 2015
                              Filed: May 29, 2015
                                 ____________

Before LOKEN, MELLOY, and GRUENDER, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       Patrol Sergeant Dale Denver of the Benton County Sheriff’s Office arrested
David New in September 2009 for possession of marijuana after two leaves were
found during a consensual search of New’s car following a traffic stop. When the
Arkansas State Crime Laboratory tested the leaves and reported they did not contain
detectible amounts of Tetrahydrocannabinol (“THC”), the prosecutor dropped a
criminal charge that New violated Ark. Code § 5-64-401 (repealed in 2011). New
commenced this 42 U.S.C. § 1983 action against Denver, alleging he was arrested
without probable cause in violation of the Fourth and Fourteenth Amendments.

       Denver moved for summary judgment on the merits and based on qualified
immunity. The district court denied the motion, concluding that, at the summary
judgment stage, the court could not make “a credibility determination crediting Mr.
Denver’s assertions as true in the face of contrary evidence -- a negative lab result and
the contrary averments of Mr. New.” Denver appeals, arguing the undisputed
material facts establish he is entitled to qualified immunity as a matter of law. “[A]
district court’s denial of a claim of qualified immunity, to the extent that it turns on
an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C.
§ 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472
U.S. 511, 530 (1985). We agree with Denver’s contention and therefore reverse.

                                           I.

       Sheriff’s Deputy Kurt Banta stopped New’s vehicle for speeding shortly after
8:00 a.m. on a Saturday morning. Banta learned that New and his passenger, New’s
brother Michael, had prior arrests for marijuana possession. Though claiming to be
in a hurry, New gave Banta consent to search the vehicle. Deputy Santos arrived as
back-up and waited with the News outside the car while Banta began his search on
the passenger side of the front seat. New told Santos there was a knife in the console,
which Banta had already found. Supervisor Denver, patrolling in the area, went to
the scene and joined Banta, searching from the driver’s side of the vehicle. Denver
found a dried and curled leaf he identified as marijuana between the driver’s seat and
the door frame. He advised Banta this was now a probable cause search, and the two
searched more aggressively. They found a second leaf on the floor almost under the
driver’s seat. Denver placed the leaves in a brown sack, arrested David New for
possession of marijuana, and submitted the leaves to the crime lab for testing. The

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lab reported, “no controlled substances detected.” This lawsuit followed. The two
leaves are not part of the summary judgment record.

       At his deposition, Denver testified that he had worked for the Sheriff’s Office
for twenty years and had substantial training and experience in drug interdiction,
including serving two years as handler of a drug detection canine. Denver described
the two leaves as green with fingers and testified he was “absolutely convinced” they
were leaves from one or more marijuana plants, even if they did not test positive for
the controlled substance THC. New testified, with equal adamance, that the leaves
were not marijuana because he and his brother did not “have marijuana on the
property” they had left that morning. New only briefly saw a “finger of a leaf over
the corner of this brown paper sack that [Denver] had put them in.” He did not recall
if the finger came to a point and had only previously seen a marijuana leaf on
television. Michael New testified he did not see the leaves but believed they were not
marijuana. He recalled that the brothers had tracked wet leaves into the car from their
wooded property that morning. By affidavit, the crime lab’s forensic chemist averred
that, in the absence of THC, the leaves “did not meet criteria to be a positive
[marijuana] sample.” However, she noted, “there are many variables as to why
[marijuana] leaves may not test positive for THC,” and the two leaves had “cystolithic
hairs, which are found on but not unique to a [marijuana] leaf.”

                                          II.

       Qualified immunity shields a government official from liability unless his
conduct violates “clearly established statutory or constitutional rights of which a
reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Qualified immunity “gives ample room for mistaken judgments by protecting
all but the plainly incompetent or those who knowingly violate the law.” Hunter v.
Bryant, 502 U.S. 224, 229 (1991) (quotation omitted). “Immunity ordinarily should



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be decided by the court long before trial.” Id. at 228. We review de novo the district
court’s denial of summary judgment based on qualified immunity.

       The Fourth Amendment protects against a warrantless arrest by an officer who
lacks probable cause. In a § 1983 action alleging violation of that right, qualified
immunity applies when “a reasonable officer could have believed [the] arrest to be
lawful, in light of clearly established law and the information the arresting officer[]
possessed.” Id. at 227 (emphasis added). “[T]he issue for immunity purposes is not
probable cause in fact but arguable probable cause, that is, whether the officer should
have known that the arrest violated plaintiff’s clearly established right.” Habiger v.
City of Fargo, 80 F.3d 289, 295 (8th Cir.) (quotation omitted), cert. denied, 519 U.S.
1011 (1996). When an arrest is for possession of a controlled substance, such as
marijuana, probable cause “merely requires that the facts available to the officer
would warrant a man of reasonable caution in the belief that certain items may be
contraband.” Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion)
(quotation omitted). Thus, a police officer can have probable cause to seize what
appears to be a controlled substance that is later determined to be something else.
See, e.g., Waltman v. Payne, 535 F.3d 342, 347-48 (5th Cir. 2008); Ochana v. Flores,
347 F.3d 266, 271-72 (7th Cir. 2003).

        A. “When there is no dispute among the parties as to the relevant facts . . . a
court should always be able to determine as a matter of law whether or not an officer
is eligible for qualified immunity.” Pace v. City of Des Moines, 201 F.3d 1050, 1056
(8th Cir. 2000). However, if a public official’s qualified immunity as well as his
Fourth Amendment liability turn on genuine issues of material fact, rather than on an
issue of law, we lack appellate jurisdiction because the decision denying qualified
immunity is not an immediately appealable collateral order. See Johnson v. Jones,
515 U.S. 304, 313 (1995); Aaron v. Shelley, 624 F.3d 882, 884 (8th Cir. 2010). New
argues we lack jurisdiction in this case because the district court’s ruling was based
upon a genuine issue of material fact, “whether Mr. Denver truly made an honest or

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objectively reasonable mistake in believing the leaves to be marijuana.” On the
unique facts presented, this threshold issue requires close scrutiny.

        Whether an officer is entitled to qualified immunity because he “acted
reasonably under settled law in the circumstances” is a question of law for the court,
both before and after trial. Hunter, 502 U.S. at 228. Predicate facts that will defeat
summary judgment based on qualified immunity “include only the relevant
circumstances and the acts of the parties themselves, and not the conclusions of others
about the reasonableness of those actions.” Pace, 201 F.3d at 1056; see Levan v.
George, 604 F.3d 366, 369 (7th Cir. 2010) (“Even if the undisputed facts showed that
the officers had made a reasonable error when they arrested [plaintiff], qualified
immunity would be available, though not a judgment on the merits.”). For example,
in Aaron v. Shelley, we dismissed an appeal from the denial of qualified immunity
for lack of jurisdiction because the officers’ investigation leading up to the plaintiff’s
arrest was “clouded by material fact disputes.” 624 F.3d at 883. In that case, what
the officers learned from multiple witnesses before they arrested Aaron required a
trial because the material facts were disputed and, viewed most favorably to plaintiff
Aaron, “would permit a reasonable jury to find that the officers lacked objectively
reasonable probable cause to arrest.” Id. at 884.

       In this case the critical jurisdictional issue is whether any disputed facts are
material to the question whether Sgt. Denver could reasonably have believed he had
probable cause to arrest David New for unlawful possession of marijuana. The
district court concluded that Sgt. Denver’s “credibility” was a disputed issue of
material fact “in the face of contrary evidence -- a negative lab result and the contrary
averments of Mr. New.” Here, the court’s reference to credibility is logical and
highlights the unusual nature of the issue. The Supreme Court has repeatedly
emphasized “that an arresting officer’s state of mind (except for the facts that he
knows) is irrelevant to the existence of probable cause.” Devenpeck v. Alford, 543
U.S. 146, 153 (2004). Thus, the Court has held, an arrest that is based upon sufficient

                                           -5-
probable cause does not violate the Fourth Amendment because the arresting officer
did not correctly identify the law being violated, or because he made a pretextual
arrest for another law enforcement purpose. See Whren v. United States, 517 U.S.
806, 812-13 (1996) (collecting cases). Here, however, the existence of probable
cause turned on Denver’s belief that the leaves were marijuana. Qualified immunity
does not protect “the plainly incompetent or those who knowingly violate the law.”
Thus, whether the arrest was objectively reasonable for qualified immunity purposes
requires an evaluation of the objective credibility of Sgt. Denver’s conclusion that the
two leaves were marijuana. Our appellate jurisdiction turns on whether there are
disputed predicate facts preventing prompt determination of this issue of law.

        In our view, the “contrary evidence” cited by the district court is not relevant
to this issue. New’s contrary opinion and the negative lab report are evidence that the
two leaves were not in fact marijuana. But neither is, alone or in combination,
material to the question of arguable probable cause. Because the Constitution “does
not guarantee that only the guilty will be arrested,” New’s assertion that he was not
in possession of marijuana “is largely irrelevant.” Baker v. McCollan, 443 U.S. 137,
145 (1979). New testified that he had only seen marijuana leaves on television, and
that he only briefly saw a single finger of one leaf sticking out of the bag where
Denver put the two leaves. This is not probative evidence that Denver lacked a
reasonable, good faith belief that he had probable cause to arrest because he had
found two leaves of marijuana in New’s car.

       Likewise, the subsequent negative lab report does not cast material doubt on
Denver’s testimony that he believed the two leaves were marijuana. This is hindsight
evidence; “[w]hether probable cause exists depends upon the reasonable conclusion
to be drawn from the facts known to the arresting officer at the time of the arrest.”
Devenpeck, 543 U.S. at 152; see Brodnicki v. City of Omaha, 75 F.3d 1261, 1265 n.5
(8th Cir.) (inconsistent information developed after an arrest “is irrelevant to our
probable cause analysis”), cert. denied, 519 U.S. 867 (1996). Moreover, even if

                                          -6-
relevant, the lab report was hardly conclusive. The forensic chemist noted that
marijuana leaves may not test positive for THC, and the leaves in question had
cystolithic hairs consistent with marijuana leaves. See United States v. Barton, 995
F.2d 931, 936 (9th Cir.) (“evidence suggest[s] that male marijuana plants contain little
or no THC”), cert. denied, 510 U.S. 957 (1993). Finally, under Arkansas law, the
negative lab report did not require that the charges against New be dropped. See
Springston v. State, 936 S.W.2d 550, 550-51 (Ark. 1997) (affirming a conviction for
possession of marijuana despite scientific test results that the “presence or absence
of THC could not be confirmed” because “lay testimony may provide substantial
evidence of the identity of a controlled substance”).

      New has failed to identify any other material fact disputes that preclude us from
deciding whether Denver had arguable probable cause to arrest as a matter of law.
Thus, we have jurisdiction to determine that issue.

       B. Examining the record on appeal for “the facts known to the arresting officer
at the time of the arrest,” as the Supreme Court requires, we find nothing requiring
the conclusion that Sgt. Denver should be denied qualified immunity because he was
either “plainly incompetent” or “knowingly violate[d] the law.” First, Denver’s
extensive training and experience in drug interdiction made him an officer whose
strong belief that he had found a controlled substance in an automobile was likely to
be objectively reasonable, though of course not infallible. In his deposition, Denver
generally described the two leaves that he identified as marijuana leaves; his
description, while inconclusive, was not contradicted by other evidence. Second,
Denver knew that both David New and his brother had prior arrests for marijuana
possession; not a conclusive fact, but one that objectively reinforced Denver’s belief
that the leaves he found in the car were marijuana.

      Third, Denver’s actions after finding the leaves were consistent with the routine
police work by an officer who genuinely believed he had found a controlled

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substance -- Denver put the leaves in a sack, arrested the person in possession, and
sent the leaves to the crime lab for controlled substance testing. Finally, there is no
evidence that Denver had any prior encounters with David New or his brother, or was
pursuing an unrelated investigation. The undisputed facts are consistent with Denver
reacting spontaneously to what he found in an unplanned search. He may have been
mistaken, but there is no hint that he was knowingly violating the Fourth Amendment.

       “The evaluation of evidence to determine if probable cause exists is not an
exact science.” Brodnicki, 75 F.3d at 1265. On these undisputed facts, we conclude
that an objectively reasonable police officer with Sgt. Denver’s training and
experience could have reasonably believed that the leaves he found in David New’s
car were marijuana, giving Denver probable cause to arrest and have the leaves tested
for THC. New cites no case in which an officer was denied qualified immunity in
analogous circumstances, and we have found none. More than evidence of a mistake
is required to deny a public official qualified immunity from § 1983 damage liability.

      The order of the district court dated October 16, 2013, is reversed. As Dale
Denver is entitled to qualified immunity from the only claim asserted in David New’s
Complaint, the case is remanded with directions to dismiss the Complaint with
prejudice.

GRUENDER, Circuit Judge, dissenting.

       The court correctly cites Johnson v. Jones, which held that “a defendant,
entitled to invoke a qualified immunity defense, may not appeal a district court’s
summary judgment order insofar as that order determines whether or not the pretrial
record sets forth a ‘genuine’ issue of fact for trial.” 515 U.S. 304, 319-20 (1995).
But the court nonetheless reviews whether the pretrial record here sets forth a genuine
issue of fact for trial. Instead, we should follow Johnson and dismiss this
interlocutory appeal for lack of jurisdiction.

                                         -8-
        As the court explains, New’s § 1983 claim requires an evaluation of the
objective credibility of Sgt. Denver’s conclusion that the two leaves were marijuana.
New argues that “no reasonable officer would have concluded the leaves were
marijuana.” He testified that the part of the leaf he saw did not look like marijuana
“at all”; Denver testified that the leaves were marijuana. Based on this and other
evidence, the district court held that “issues of fact remain as to whether Mr. Denver
truly made an honest or objectively reasonable mistake in believing the leaves to be
marijuana.” Under Johnson, we cannot review such determinations of “evidence
sufficiency.” Id. at 313; see also Lockridge v. Bd. of Trs. of Univ. of Ark.,
315 F.3d 1005, 1008 (8th Cir. 2003) (en banc); Tubbs v. Harrison, 383 F. App’x 804,
807 (10th Cir. 2010) (dismissing appeal where the district court had “identified a
significant disputed issue of fact as [to] whether [defendant police officers] could
actually smell marijuana” before they entered plaintiffs’ house without a warrant).

       Recognizing this limitation, the court finds jurisdiction by deeming New’s
evidence immaterial rather than “probative” of Sgt. Denver’s “reasonable, good faith
belief that he had probable cause.” Ante at 6. But this is simply weighing evidence.
Every fact-based summary-judgment ruling asks whether a party’s evidence is
sufficiently probative. That is how trial courts decide what Johnson says we cannot
examine: “which facts a party may, or may not, be able to prove at trial.”
515 U.S. at 313. As such, to accept the court’s analysis undercuts Johnson
significantly. And, moreover, the court’s analysis contradicts our earlier holding that
we cannot “decide whether a dispute is genuine by finding certain evidence
insufficiently probative.” Livers v. Schenck, 700 F.3d 340, 350-51 (8th Cir. 2012);
see Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc).

        Accepting the court’s analysis also implicates Johnson’s concern about
increased appellate workloads. As Johnson explained, “to determine whether there
is or is not a triable issue of fact . . . may require reading a vast pretrial record, with
numerous conflicting affidavits, depositions, and other discovery materials.”

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515 U.S. at 316. The record in this case is hardly vast, but even it contained the
forensic chemist’s affidavit; excerpts from Sgt. Denver’s deposition, New’s
deposition, and Michael New’s deposition; and an incident report. When we face
more complicated cases, the court’s rule would have us sift through, not the hundred
or so pages here, but thousands of pages, carefully sorting for nuggets of probative
evidence. This is precisely what Johnson chose to forbid.

       I am sympathetic to the court’s desire to reach the merits. “Qualified immunity
is ‘an immunity from suit rather than a mere defense to liability.’” Scott v. Harris,
550 U.S. 372, 376 n.2 (2007) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
Our lack of jurisdiction subjects Denver to continued suit based on what seems like
scant evidence. Nonetheless, when the Supreme Court decided Johnson, it was aware
of the need to protect officials from erroneously permitted trials. See 515 U.S. at 315.
The Court still held that we cannot review an order deciding “whether or not the
pretrial record sets forth a ‘genuine’ issue of fact for trial.” Id. at 319-20. As such,
we should dismiss this appeal for lack of jurisdiction. I respectfully dissent.
                         ______________________________




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