                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 3 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    STEPHEN DENNIS BACA, JR.,

                Plaintiff - Appellant,

    v.                                                    No. 01-1104
                                                   (D.C. No. 00-WY-920-CB)
    THOMAS A. BENNETT,                                   (D. Colorado)

                Defendant - Appellee.


                             ORDER AND JUDGMENT           *




Before SEYMOUR , McKAY , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Appellant Stephen Baca challenges the district court’s decision to grant

summary judgment to appellee Thomas Bennett on grounds of qualified

immunity. We affirm.

      In July 1996, a robbery was committed at Amoco service station in Arvada,

Colorado. Witnesses described the participants as one white male, one Hispanic

male, and one white female who drove the get-away vehicle, a gold-colored van

with New Mexico plates. Bennett, an Arvada police officer, was assigned to

investigate the robbery. Through research of the license plate and a subsequent

witness identification, Bennett was able to identify William Earl Noble as the

white male involved in the Colorado robbery. Additional investigation placed

Bennett in contact with police in Bakersfield, California, who informed Bennett

that Noble had robbed another convenience store in Bakersfield, using the same

vehicle. There were two additional suspects in that robbery: Noble’s wife,

Carmelita Pacheco-Noble, and her sixteen-year-old son, Stephen Baca. The

Bakersfield police told Bennett that Baca admitted to participating in the

Colorado robbery.

      Based on the above information, Bennett provided an affidavit supporting

probable cause to arrest Baca for the Colorado robbery. Baca was extradited to

Colorado and was taken into custody when he could not make bail. After three

months, the district attorney decided to drop the charges against Baca because,


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among other reasons, Baca had already served three years in California, Baca’s

mother had received essentially only probation for her participation in the

Colorado robbery, and there were concerns regarding whether Baca’s statements

to the Bakersfield police were voluntary.

      Following his release, Baca filed a complaint under 42 U.S.C. § 1983

alleging that Bennett violated his Fourth Amendment rights by making material,

false statements in the affidavit supporting probable cause. In particular, while

Bennett stated that Baca had confessed involvement in the Colorado robbery,

transcripts of Baca’s interview with Bakersfield police revealed that Baca had

denied direct participation in the Colorado robbery, although he had admitted to

being present and knowing about it ahead of time. Baca argues that he was

arrested and held in custody as a result of Bennett’s false statement, only to have

the charges against him dropped when the district attorney discovered the true

content of his statement to the Bakersfield police.

      Bennett moved for summary judgment, and the district court granted the

motion on grounds of qualified immunity. The district court concluded that Baca

failed to show Bennett had intentionally or recklessly made false statements in

the affidavit, and further concluded that other evidence supported a finding of

probable cause even without the alleged false statement. We are not persuaded

the district court erred.


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       “[G]overnment officials will not be liable for their conduct when

performing discretionary functions unless their conduct violates ‘clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Bruning v. Pixler, 949 F.2d 352, 356 (10th Cir. 1991) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

       The standard for determining whether there has been a Fourth Amendment

violation as a result of an allegedly false probable cause affidavit derives from

a criminal case, Franks v. Delaware, 438 U.S. 154 (1978). See Bruning,

949 F.2d at 357 (applying Franks in civil rights action). In Franks, the Supreme

Court held that to attack the validity of a warrant, “there must be allegations of

deliberate falsehood or reckless disregard for the truth.” 438 U.S. at 171.

Moreover, there will be no violation “if, when material that is the subject of

the alleged falsity or reckless disregard is set to one side, there remains

sufficient content in the warrant affidavit to support a finding of probable cause.”

Id. at 171-72. 1

       Baca contends the false statement was material because the district attorney

conceded he dropped the charges against Baca when he discovered that there

were problems with Baca’s statements to the Bakersfield police. Baca also relies



1
      In his appellate brief, Baca appears to contest the applicability of this
analysis, but cites no authority supporting this position.

                                          -4-
on Robinson v. Maruffi , 895 F.2d 649 (10th Cir. 1990), for the proposition that

where a police officer deliberately misleads a prosecutor, grand jury, or judge, the

intervening decisions of those actors will not shield the officer from liability.

      These arguments are not responsive to the district court’s reasoning.

In evaluating an officer’s conduct in authoring a probable cause affidavit, the test

of materiality is whether the false or omitted information was necessary to the

determination of probable cause. See United States v. Kennedy, 131 F.3d 1371,

1376 (10th Cir. 1997) . Here, the other evidence outside of Baca’s alleged

confession (i.e., the witness description of the Colorado robbery in combination

with the parallels between the Colorado and California robberies) was sufficient

to support a finding of probable cause. The fact that subsequent revelations about

the circumstances and content of Baca’s statements to the Bakersfield police were

one factor in persuading the district attorney to drop the charges does not imply

that the earlier probable cause determination was unfounded. Furthermore,

because there is no evidence that other actors made decisions based on Bennett’s

report of Baca’s alleged confession,   Robinson is inapposite.

      Accordingly, we AFFIRM the judgment of the district court.


                                                     Entered for the Court


                                                     Stephanie K. Seymour
                                                     Circuit Judge

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