                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 19-3300
                       ___________________________

                  Brad Wendt; Donald Kinzie; Dustin Hansen

                      lllllllllllllllllllllPlaintiffs - Appellants

                                          v.

      State of Iowa; Jeremy King, DNR Officer; Brian Smith, DNR Officer

                     lllllllllllllllllllllDefendants - Appellees
                                      ____________

                    Appeal from United States District Court
                 for the Southern District of Iowa - Des Moines
                                 ____________

                             Submitted: May 14, 2020
                              Filed: August 21, 2020
                                  ____________

Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges.
                       ____________


BENTON, Circuit Judge.

      After investigations by two officers of the Iowa Department of Natural
Resources (DNR), plaintiffs Bradley E. Wendt, Donald D. Kinzie, and Dustin A.
Hansen received criminal citations for trespassing and traffic violations, while
hunting. The hunters sued, alleging, among other claims, unreasonable search and
seizure under the Fourth Amendment and the Iowa Constitution, and violations of
substantive due process rights. The district court1 dismissed the unreasonable seizure
claim for failure to state a claim, and granted summary judgment to the officers on the
unreasonable search and substantive due process claims. The hunters appeal. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.

                                           I.

       In January 2015, the Iowa DNR received complaints that Wendt and Kinzie
were hunting deer from a truck, without permission from the property owners. DNR
officer Brian L. Smith investigated the complaint, visiting the property, taking photos,
and collecting six witness statements and trespass forms from the owners. The
owners added that Hansen was also involved in the hunt, shooting from a different
truck. DNR officer Jeremy King interviewed Hansen and Kinzie. Corroborating the
witness statements, Kinzie admitted that he, Wendt, and Hansen hunted from two
separate vehicles to flush the deer toward each other, while communicating by cell
phone. On the day of the hunt, Wendt and Kinzie had both registered bucks on
Iowa’s harvest report system; Hansen registered one the next day. Based on the
evidence, Officer Smith prepared criminal citations against the hunters. Each was
served with several citations. All charges against Wendt and Kinzie were eventually
dismissed. Hansen was convicted of two citations: violating one-way traffic
designation, and improperly using the median, curb, or access highway.

      The district court dismissed an unreasonable seizure claim for failure to state
a claim (which the hunters appeal), and three state tort claims for lack of subject
matter jurisdiction (not appealed). Almost all of this appeal concerns the parts of
Count I and Count II that survived the motion to dismiss. Most of Count I alleges
that the officers conducted unreasonable searches in violation of the Fourth


      1
      The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.

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Amendment and Article I, § 8 of the Iowa Constitution by (1) unlawfully and without
probable cause obtaining search warrants and subpoenas for the hunters’ Facebook
records and (2) unlawfully placing a GPS tracking device on Wendt’s vehicle. Count
II alleges that the hunters’ substantive due process rights under the Fifth and
Fourteenth Amendments and Article I, § 9 of the Iowa Constitution were violated
“with regard to the Plaintiffs exercising their right to own and use guns as protected
by the Second Amendment.” The district court ruled that the hunters could not bring
a substantive due process claim based on the Second Amendment, but could pursue
a substantive due process claim for the officers’ arbitrary and capricious conduct
during their criminal investigations. The court later granted summary judgment to the
officers on all the claims that survived the motion to dismiss. The hunters appeal.

                                         II.

       Count I of the complaint alleged that officers King and Smith, in their
individual capacities, executed an unreasonable seizure in violation of the Fourth
Amendment and Article I, § 8 of the Iowa Constitution by “unlawfully and without
court order, citing them for criminal behavior without probable cause.” The hunters
appeal only the dismissal of the Iowa Constitutional claim.

      The Supreme Court of Iowa follows “an independent approach” in the
application of its state constitution. State v. McIver, 858 N.W.2d 699, 702 (Iowa
2015). However, “[w]here a party raises both state and federal constitutional claims
but does not argue that a standard independent of the federal approach should be
employed under the state constitution, we ordinarily apply the substantive federal
standards. . . .” State v. Tyler, 830 N.W.2d 288, 291-92 (Iowa 2013) (applying the
“general standards as outlined by the United States Supreme Court” to unreasonable
search and seizure claims under Article 1, § 8); State v. Wickes, 910 N.W.2d 554, 576
(Iowa 2018) (Appel, J., specially concurring) (collecting cases) (“When a party brings
claims under parallel provisions of the Iowa and United States Constitutions, but does

                                         -3-
not advance a different substantive standard under the Iowa Constitution but simply
incorporates prevailing federal standards, we apply the prevailing federal substantive
standard but reserve the right to apply federal standards in a fashion more stringent
than federal cases.”).

       According to the complaint, Officer Smith served citations on Kinzie, and
Officer King served Hansen. Wendt was not served by either officer; instead the
citations were allegedly “verified by Defendant Smith.” The district court, assuming
as true the facts in the complaint, found no seizure under the prevailing federal
standards because the officers were alleged only to have issued or verified citations.
See United States v. Mendenhall, 446 U.S. 544, 554 (1980) (listing circumstances
that amount to a seizure); Tech. Ordnance, Inc. v. United States, 244 F.3d 641, 651
(8th Cir. 2001) (The Eighth Circuit “has never held that pretrial restrictions such as
[being forced to post bond, appear in court, or made to answer charges] constitute a
Fourth Amendment seizure.”).

        After careful de novo review, this court concludes that the district court
properly dismissed these claims as failing to state a claim upon which relief could be
granted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to survive a motion to
dismiss, a complaint must contain enough facts, accepted as true, to state a claim to
relief that is plausible on its face); Kelly v. City of Omaha, 813 F.3d 1070, 1075 (8th
Cir. 2016) (de novo review). See generally 8th Cir. R. 47B.

                                         III.

      The district court granted summary judgment on the basis of qualified
immunity for the hunters’ unreasonable search claims. They assert on appeal that the
summary judgment was sua sponte “on an issue neither briefed nor argued by the
Defendants. . . .” To the contrary, each party briefed and argued qualified immunity
on both the state and federal constitutional claims. True, before the district court

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made any rulings, the Iowa Supreme Court decided Baldwin v City of Estherville, 915
N.W.2d 259 (Iowa 2018). The court there, for the first time, held that the qualified
immunity defense applies to Iowa constitutional claims, but that the standard for it
differs from the federal standard. Baldwin, 915 N.W.2d at 281 (“[W]ith respect to
a damage claim under article 1, sections 1 and 8, a government official whose conduct
is being challenged will not be subject to damages liability if she or he pleads and
proves as an affirmative defense that she or he exercised all due care to conform to
the requirements of the law.”).

       At the motion to dismiss stage, both parties briefed the new “all due care”
qualified immunity standard as applied to the hunters’ unreasonable search claim
under Article I, § 8 of the Iowa Constitution. The officers again raised qualified
immunity at the summary judgment stage, although neither party referenced the new
standard, instead applying federal standards. The district court, noting the error,
applied the correct legal standard to the Iowa constitutional claim. The hunters do not
challenge that Baldwin is the applicable Iowa standard, or that the district court
correctly applied the new standard to the facts of this case. They also do not argue
they were not given an adequate opportunity to brief the issue. See Barkley, Inc. v.
Gabriel Bros., Inc., 829 F.3d 1030, 1041 (8th Cir. 2016) (“Federal district courts
have power to grant summary judgment sua sponte when the losing party is given
sufficient advance notice and an adequate opportunity to submit evidence in
opposition.”). The district court did not err in considering summary judgment for the
unreasonable search claims under the Iowa Constitution.

                                          A.

      In the complaint, the first unreasonable search claim was that the officers
“unlawfully and without probable cause obtain[ed] search warrants for Plaintiffs’
Facebook records, including private messages. . . .” The warrants sought Facebook
records for the hunters from December 1, 2012, through December 17, 2015. The

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warrant applications contained Officer King’s statement that the hunters (1) used
trucks and mobile communication devices to illegally hunt and harvest deer in Cass
and Audubon Counties, (2) recklessly discharged firearms, and (3) uploaded pictures
and comments to Facebook that “hold crucial evidence for corroborating statements
from witnesses, hunting party member’s statements, and evidence collected by
Officers.” Also attached to the application was a witness’s statement about pictures
and comments posted by Wendt in 2013 that led the witness to believe Wendt had
committed hunting violations. A state judge issued the search warrants.

       In their brief against the officers’ motion for summary judgment, the hunters
argued, for the first time, that the warrants were overbroad. The district court ruled
that probable cause supported the warrants, but refused to consider the overbreadth
claim, noting it was improperly raised too late in the litigation. On appeal, the
hunters argue (1) they timely alleged an overbroad warrant, and (2) the warrants
lacked probable cause.

       The hunters insist that the complaint’s allegation of a lack of probable cause
alleges that the warrant is overbroad. The hunters first raised the overbreadth
argument after the close of discovery. As apparent from the hunters’ brief on appeal,
the overbreadth argument here focuses on “when” facts, which are different facts than
those in the record for the general probable cause inquiry. Cf. Lewis v. Tripp, 604
F.3d 1221, 1226 (10th Cir. 2010) (recognizing that the “initial obligation of the
district court in assessing a qualified immunity defense at summary judgment is to set
forth with specificity the facts–the who, what, when, where, and why–that a
reasonable jury could infer from the evidence presented by the parties.”). In terms of
the law of qualified immunity, the United States Supreme Court considers separately
whether the warrant is overbroad and whether the facts in an affidavit “actually
establish probable cause.” See, e.g., Messerschmidt v. Millender, 565 U.S. 535, 548-
553 (2012) (holding (1) “[e]ven if the scope of the warrant were overbroad,” it would
not have been entirely unreasonable for an officer to believe there was probable

                                         -6-
cause, and (2) whether the facts “actually establish probable cause is a question we
need not decide.”).

       The district court properly refused to consider the overbreadth claim. The
pleading requirements under the Federal Rules of Civil Procedure, while “relatively
permissive,” “do not entitle parties to manufacture claims, which were not pled, late
into the litigation for the purpose of avoiding summary judgment.” Singleton v.
Arkansas Hous. Auth. Prop. & Cas. Self-Insured Fund, 934 F.3d 830, 837 (8th Cir.
2019). See WireCo WorldGroup, Inc. v. Liberty Mut. Fire Ins. Co., 897 F.3d 987,
993 (8th Cir. 2018) (noting that defendant had notice of alleged grounds for breach
of contract and was entitled to tailor its defense accordingly; “it was not required to
intuit additional theories of liability that were not apparent from [plaintiff’s]
complaint.”); N. States Power Co. v. Fed. Transit Admin, 358 F.3d 1050, 1057 (8th
Cir. 2004) (where complaint lacked allegations that would notify defendant of claim,
party could not manufacture claim late in litigation to avoid summary judgment).

       As for probable cause, having carefully reviewed the parties’ arguments and
reviewed the record on appeal, this court concludes that the information in the
warrant application was sufficient to support a finding of qualified immunity for the
officers. See Kiesling v. Holladay, 859 F.3d 529, 533 (8th Cir. 2017), citing
Messerschmidt, 565 U.S. at 546-47 (recognizing that warrants issued by a neutral
magistrate generally confer a “shield of immunity” to officers, with exception “where
the warrant was based on an affidavit so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable.”). See generally 8th Cir.
R. 47B.

      The district court properly granted summary judgment for the unreasonable
search claim for the Facebook records.




                                          -7-
                                         B.

       The second unreasonable search claim was added after discovery (by
amendment of the complaint). The officers produced text messages from Officer
Smith’s work phone. The hunters argue that his text messages to Officer King raise
a fact issue whether a tracker was placed on Wendt’s vehicle. In the first text
message, Officer Smith forwarded a congratulatory message from yet another officer
about the hunters’ case. In the second message, Officer Smith texted, an hour later,
that “The tracker has been removed.” Based on these messages, the complaint alleges
that the officers caused damage by “unlawfully and without probable cause, or even
bothering to seek a search warrant, placing a GPS tracking device on Wendt’s
vehicle. . .” In support of their interpretation of the messages, the hunters provided
their own affidavits. Wendt attested: “Finding out about the GPS tracker illegally
place [sic] on my truck during discovery in this case solved a mystery for me because
I often wondered during the 2015 hunting season how the Defendants seemed to
know every time I was out hunting and where I was.” Hansen attested: “A tracking
device on Brad’s truck explains how the Defendants always seemed to be aware of
when and where I was hunting whenever I hunted with Brad. When hunting with
Wendt you just knew that the chances of getting pulled over and checked by DNR
were much higher.” Kinzie attested: “A tracking device on Brad’s truck explains how
the Defendants always seemed to be aware of when and where I was hunting
whenever I hunted with Brad. . . . I always thought that was strange.”

      In response, Officer Smith submitted an affidavit attaching three documents
about an unrelated criminal case not involving the hunters. These documents are an
Application for Search Warrant Mobile Tracking Device; Search Warrant for
Placement of Mobile Tracking Device; and Return of Search Warrant Mobile
Tracking Device. The officers emphasize the dates on the documents: November 11,
2015–the search warrant in the unrelated case was applied for and issued; and,
December 18, 2015–the tracking device was returned. The hunters counter that King

                                         -8-
was not involved with the unrelated investigation, so there was no reason for Smith
to communicate with King about removing a tracking device in that case. The
hunters repeatedly assert that the “Return of Search Warrant” is only a “cover” for the
claim that a GPS tracker was not placed on Wendt’s vehicle because the form says
nothing about the removal of the device.

       The district court ruled that “Plaintiffs’ allegation that Defendants placed a
GPS tracker on Wendt’s vehicle is, at best, speculative and contradicts all objective
evidence in the record.” The hunters insist that they raised a question of material fact
whether a secret tracker was placed on Wendt’s vehicle emphasizing three points:
King was involved in the hunters’ case and not the unrelated case to which Smith says
he was referring; the wording of the two text messages (sent December 17, 2015); and
the affidavits stating that the officers always seemed to know where Plaintiffs were.
Having carefully reviewed the record and the parties’ arguments on appeal, this court
agrees with this well-reasoned grant of summary judgment for the officers. See Reed
v. City of St. Charles, 561 F.3d 788, 791 (8th Cir. 2009) (district court is not required
to accept unreasonable inferences or sheer speculation as fact). See also Torgerson
v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (“Where the
record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.”); Chao v. Barbeque Ventures,
LLC, 547 F.3d 938, 941 (8th Cir. 2008) (de novo review of summary judgement).
See generally 8th. Cir. R. 47B.

                                          IV.

       The hunters argue that the district court erred in granting summary judgment
on their substantive due process claim that the officers did not conduct adequate
investigations. According to the hunters, the facts of the case “show a concerted
effort to get Wendt and his hunting partners on some charge, really any charge,” and
that this “conduct in targeting Plaintiffs shocks the conscience thereby violating due

                                          -9-
process.” This court reviews a grant of summary judgment de novo. Torgerson, 643
F.3d at 1042. Summary judgment is proper if the record shows “there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter
of law.” Id., quoting Fed. R. Civ P. 56. To establish a constitutional violation, a
plaintiff must prove the defendant’s “failure to investigate was intentional or reckless,
thereby shocking the conscience.” Winslow v. Smith, 696 F.3d 716, 732 (8th Cir.
2012). “Mere negligent failure to investigate, such as failing to follow up on
additional leads, does not violate due process.” Id.

        The facts of the case show that the DNR received numerous complaints about
the hunters’ hunting and trespassing; Officers King and Smith investigated and
verified the information in the complaints; witnesses signed witness statements and
trespass forms; and the officers drew reasonable conclusions from the evidence. See
id. at 734 (“Defendants may not be held liable merely for aggressively investigating
the crime, believing witnesses, following leads, and discounting those pieces of
evidence that do not fit with the evidence at the scene of the crime.”); Dickerson v.
Mertz, 547 N.W.2d 208, 215-16 (Iowa 1996) (affirming qualified immunity from
federal constitutional claims for officers who relied on a witness statement and a deer
found in a truck to issue citations for “taking deer by auto,” and hunting without a
valid license, although plaintiff was acquitted of all charges), discussed in Baldwin,
915 N.W.2d at 277. The hunters point to no evidence in the record that the officers
intentionally or recklessly failed to investigate in a way that shocks the conscience.
See Winslow, 696 F.3d at 732 (listing circumstances that “indicate reckless or
intentional failure to investigate that shocks the conscience”).

      The district court properly granted summary judgment to the officers on the
substantive due process claim.

                                     *******


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The judgment is affirmed.
                 ____________________________




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