                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 01-3096
                                 ___________

Mary DeArmon, Albert Greer,             *
Stanley Boyd,                           *
                                        *
            Plaintiffs - Appellants,    *   Appeal from the United States
                                        *   District Court for the Eastern
      v.                                *   District of Missouri.
                                        *
Garrett Burgess; Joseph Spiess;         *
Clarence Hines; Steve Berles; Joseph    *
Crews; William Noonan; Thomas           *
Whyte; Edward Smoote; Troy Eaton;       *
James Joyner; Board of Police           *
Commissioners of the City of St. Louis; *
Wayman Smith, III; Leslie Bond, Sr.;    *
Clarence Harmon, The Honorable          *
Ex-Officio Mayor.                       *
                                        *
            Defendants - Appellees.     *
                                  ____________

                       Submitted: September 9, 2003
                           Filed: November 8, 2004
                               _____________

Before LOKEN, Chief Judge, McMILLIAN and HANSEN, Circuit Judges.
                             _____________

McMILLIAN, Circuit Judge.
       In this 42 U.S.C. § 1983 action, Mary DeArmon, her son, Stanley Boyd, and
her cousin, Albert Greer (collectively appellants) appeal from a final judgment
entered in the District Court for the Eastern District of Missouri1 in favor of ten
St. Louis, Missouri, police officers and the members of the city's board of police
commissioners (collectively appellees). For reversal, appellants argue that the district
court erred in holding that appellees were entitled to qualified immunity on claims
alleging an unlawful search and seizure, in violation of the Fourth and Fourteenth
Amendments. We affirm.

BACKGROUND

       On June 3, 1997, the police officers executed a search warrant at DeArmon's
house, where her son and her cousin also resided. The search warrant authorized the
officers to search and seize "crack cocaine, marijuana, heroin, weapons, U.S.
currency, drug transaction records, and any other instruments of the crime."
According to appellants, the officers broke entry doors and locks on interior doors,
damaged drywall and furniture, and seized a firearm, doorknobs and locks,
photographs, personal papers, and jewelry. Also, according to appellants, the officers
did not provide them with a copy of the search warrant and an itemized receipt for the
seized property, as required by Fed. R. Crim. P. 41 and Mo. Rev. Stat. §§ 542.276,
542.291.

       Appellants, who were never charged with a crime, filed this § 1983 action in
the district court, challenging the issuance and execution of the search warrant. They
also raised a pendent state-law replevin claim, seeking return of the seized items.




      1
       The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.

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       Appellees filed a motion for summary judgment on the basis of qualified
immunity. The district court granted the motion. The district court held that the
search warrant was supported by probable cause, and, as relevant to this appeal, the
the officers had not exceeded the scope of the warrant.2 The district court also held
that the officers' alleged violation of Fed. R. Crim. P. 41 and state law did not
constitute a § 1983 violation because the officers had not violated clearly established
constitutional law. The district court declined to exercise supplemental jurisdiction
over the state-law replevin claim, and entered final judgment. This appeal followed.3

DISCUSSION

       We review the district court's grant of summary judgment on the basis of
qualified immunity de novo. Turpin v. County of Rock, 262 F.3d 779, 782 (8th Cir.
2001). In doing so, we review the record in the light most favorable to appellants and
give them the benefit of all reasonable inferences therefrom. Id. In determining
whether appellees are entitled to qualified immunity, we first ask whether "the facts
alleged show the officer's conduct violated a constitutional right." Saucier v. Katz,
533 U.S. 194, 201 (2001). If so, we next "ask whether the right was clearly
established." Id. "The relevant, dispositive inquiry in determining whether a right
is clearly established is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted." Id. at 202. We "examine pre-
existing law to see if it would be apparent to reasonable officials that their actions

      2
       On appeal, appellants do not challenge the district court's holdings that the
search was conducted pursuant to a warrant that was supported by probable cause;
that appellants had presented no evidence that the affidavit in support of the warrant
application contained false or misleading statements; and that the officers' breaking
doors and walls and overturning furniture were objectively reasonable.
      3
        Appellants had filed a motion to remand this case to the district court because
of a lack of a final judgment. However, at oral argument, they abandoned the claim,
conceding the judgment was final.

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were unconstitutional." Weiler v. Purkett, 137 F.3d 1047, 1052 (8th Cir. 1998) (en
banc).

       Appellants first argue that the district court erred in granting summary
judgment because the officers seized items–jewelry, photographs, and personal
papers–which were outside the scope of the search warrant. The district court did not
err. "Regardless of the fact that many of the items were 'personal property' of one or
more of the [appellants], [they] fail to show how any of the items seized were
inconsistent with the parameters of the search warrant." Walden v. Carmack, 156
F.3d 861, 873 (8th Cir. 1998). The search warrant authorized the officers to seize
drugs, weapons, money, drug records, and "other instruments" of drug transactions.
The officers reasonably "could have believed that the items seized were of such an
incriminating nature as to constitute . . . evidence of criminal activity." Id. As
appellees note, the personal papers could have been drug records; the photographs
could have depicted criminal activity; the jewelry could have been the fruits of a drug
transaction; and the door locks and knobs could have carried fingerprints.

       Appellants next argue that the district court erred in granting summary
judgment on their claim that the officers violated Fed. R. Crim. P. 41 and state law,
which required the officers to give them a copy of the search warrant and an itemized
property receipt. On appeal, appellants do not assert error in the district court's
holding that, even if the officers had failed to follow Fed. R. Crim. P. 41 and state
law, the officers had not violated a clearly established constitutional right. Indeed,
in the district court, appellants conceded that, at the time of the search, this court had
not expressly held that failure to follow Fed. R. Crim. P. 41 was a constitutional
violation, see United States v. Hepperle, 810 F.2d 836, 838-39 (8th Cir.), cert. denied,
403 U.S. 1025 (1987), and acknowledged that some federal courts had held that
violations of Fed. R. Crim. P. 41 were not constitutional violations. See, e.g., United
States v. Simons, 206 F.3d 392, 403 (4th Cir. 2000) ("failure . . . to leave either a
copy of the warrant or a receipt for the items taken did not render the search

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unreasonable under the Fourth Amendment"). Appellants also did not contest that
"a violation of state law, without more, does not state a [§ 1983] claim." Collins v.
Bellinghausen, 153 F.3d 591, 596 (8th Cir. 1998) (internal quotation omitted).

        Although appellants do not assert that a violation of Fed. R. Crim. P. 41 and
state law is a violation of a clearly established constitutional right, appellants argue
that the district court erred because it ignored their argument concerning the
ministerial-duty exception to the qualified immunity doctrine. Appellants rely on
Davis v. Scherer, 468 U.S. 183 (1984) (Davis). In that case, the Supreme Court
suggested that a state official would not be entitled to qualified immunity if he
violated a statute or regulation that "specifi[ed] the precise action that the official
must take in each instance." Id. at 196 n.14. In addition, the Court stated that the
breach of the legal duty had to "g[ive] rise to the [plaintiff's] cause of action for
damages." Id. In other words, "[n]either federal nor state officials lose their
immunity by violating the clear command of a statute or regulation–of federal or of
state law–unless that statute or regulation provides the basis for the cause of action
sued upon." Id. at 194 n.12.

       In Sellers v. Baer, 28 F.3d 895, 902 (8th Cir. 1998), we observed that "[t]he
exception to qualified immunity for functions that are 'ministerial' rather than
'discretionary' is quite narrow." Indeed, we stated that "in light of the limitations
placed on the exception by Davis," it was difficult "to imagine the case in which the
ministerial-duty exception ever could apply," believing that, as a practical matter, "the
ministerial-duty exception to the qualified immunity defense [wa]s [a] dead letter."
Id. In this case, "[e]ven assuming that the officers violated the [legally] imposed
duties and that the duties were purely ministerial, the officers still are entitled to
qualified immunity." Id. (footnote omitted). Appellants do not claim that Fed. R.
Crim. P. 41 or state law created their cause of action. Rather, appellants seek
damages based on their claims that the Fourth and Fourteenth Amendments were
violated. "Thus, the issue before us is whether the officers' conduct violated any

                                          -5-
clearly established constitutional rights, not whether the officers may have violated"
a federal rule or state law. Id. As the district court held, because, at the time of the
search, the officers' failure to follow Fed. R. Crim. P. 41 and state law did not
constitute a violation of a clearly established constitutional right, they are entitled to
qualified immunity.

        Appellants next argue that appellees' failure to return their property seized
during the search violated their due process rights under the Fifth and Fourteenth
Amendments, relying on Lathon v. City of St. Louis, 242 F.3d 841 (8th Cir. 2001)
(Lathon). In Lathon, a plaintiff filed a § 1983 action alleging that the police
department's refusal to return weapons and ammunition seized during a lawful search
of his home was a deprivation of his property without due process, in violation of the
Fifth and Fourteenth Amendments. The district court, citing Hudson v. Palmer, 468
U.S. 517 (1984), and Parratt v. Taylor, 451 U.S. 527 (1981), granted the defendants'
motion for summary judgment on the due process claim, noting that the plaintiff had
state-law remedies available for any loss he had suffered. "In those cases, the
Supreme Court held that a deprivation of property caused by a state official's random
and unauthorized conduct does not give rise to a § 1983 procedural due process claim
if the state provides an adequate post deprivation remedy." Lathon, 242 F.3d at 843
(footnote omitted). In Lathon, we reversed the grant of summary judgment because
the defendants' refusal to return the weapons and ammunition was an authorized
decision, not a random and unauthorized act. Thus, we held that the availability of
state-law post-deprivation remedies was irrelevant. Id. at 844.


       Appellants' reliance on Lathon is misplaced. Unlike the plaintiff in Lathon,
appellants, who were represented by counsel in the district court, did not plead
a § 1983 claim based on a deprivation of their property in violation of the due process
clause of the Fifth and Fourteenth Amendments. Rather, their § 1983 claims alleged
an unlawful search and seizure in violation of the Fourth and Fourteenth
Amendments. They never amended their complaint to add a due process claim

                                           -6-
alleging that appellees' deprivation of their property violated the Fifth and Fourteenth
Amendments. Instead, they filed a pendent state-law claim for replevin. In fact, in
their opposition to appellees' motion for summary judgment, appellants argued that
the availability of state-law remedies was not before the district court because they
were not alleging Fifth Amendment due process violations, but rather were alleging
Fourth Amendment violations. Appellants now argue that replevin is not an available
state-law remedy. However, because they did not present this argument or their other
Fifth Amendment arguments to the district court, we decline to address the arguments
on appeal. Tarsney v. O'Keefe, 225 F.3d 929, 939 (8th Cir. 2000) (refusing to address
arguments raised for the first time on appeal cert. denied, 532 U.S. 924 (2001)).

      Accordingly, the judgment of the district court is affirmed.
                      ______________________________




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