                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-4038
                        ___________________________

                                    Monty Fagnan

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

  City of Lino Lakes, Minnesota; Timothy Noll, Lino Lakes Police Officer, in his
   individual capacity; Christopher Bragelan, Lino Lakes Police Sergeant, in his
    individual capacity; Mitchell Demars, Lino Lakes Police Investigator, in his
individual capacity; William Hammes, Lino Lakes Police Officer, in his individual
   capacity; Tanya Tamm, Lino Lakes Police Officer, in her individual capacity;
  Adam Halverson, Lino Lakes Police Officer, in his individual capacity; Wayne
 Wegener, Lino Lakes Police Officer, in his individual capacity; Joel Martin, Lino
                  Lakes Police Officer, in his individual capacity

                     lllllllllllllllllllll Defendants - Appellees
                                      ____________

                    Appeal from United States District Court
                   for the District of Minnesota - Minneapolis
                                  ____________

                            Submitted: October 24, 2013
                               Filed: March 10, 2014
                                   ____________

Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
                              ____________

KELLY, Circuit Judge.
       After he was acquitted of state law charges related to possession of firearms,
Monty Fagnan (Fagnan) brought suit under 42 U.S.C. § 1983 against the City of Lino
Lakes and eight Lino Lakes police officers in their individual capacities. The district
court1 granted defendants’ motion for summary judgment on all claims, and Fagnan
now appeals the judgment only as to his Fourth Amendment claim against the police
officers in their individual capacities. With jurisdiction under 28 U.S.C. § 1291, we
affirm.

                                   I. Background

       On February 25, 2007, Sandra Fagnan, Monty Fagnan’s mother, called 911 to
report a possible gas leak at her home in Lino Lakes, Minnesota. She and her
husband Gary believed that the basement laundry room was the source of the leak.
Monty Fagnan, who was living with them at the time, accompanied the first
responders to the basement. While the firefighters searched for the leak in the
laundry room, the police officers on the scene—Sergeant Bragelan2 and Officer
Noll—stayed in the basement living room, through which the firefighters had passed
on the way to the laundry room. Sergeant Bragelan testified that “[i]t was somewhat
dim but there was still plenty of light to see what you were doing” in the living room.
State Court Trial Tr. at 360; Appellees’ Appendix (App.) at 388. The officers began
to converse with Fagnan about his extensive gun collection, which was displayed in
upright glass cases along the living room wall next to the laundry room door. At one
point, Officer Noll commented that the barrels of two of the guns looked shorter than
eighteen inches, the minimum permissible length under Minnesota law. See Minn.
Stat. Ann. § 609.67. Sergeant Bragelan testified that the guns in question were stored


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
      2
       As did the district court, we spell Sergeant Bragelan’s name thus for
consistency with the caption, though the warrant affidavit spells it “Bragelman.”

                                         -2-
in the cases adjacent to the laundry room, “on the side closest to that laundry room
door.” State Court Trial Tr. at 302; App. at 330. After observing the guns’ length
and wondering if they had been sawed off, Sergeant Bragelan used his flashlight to
illuminate more clearly the ends of the barrels. He noticed that the gun barrels
appeared jagged, as if they had been cut. Fagnan stated that the guns were legal and
had been bought from a licensed dealer. All emergency personnel, including the
police officers, left after the firefighters found no gas leak.

       Sergeant Bragelan and Officer Noll subsequently investigated their suspicions
about two of Fagnan’s guns by comparing their memories of those guns to the lengths
of similar guns in the police department armory. They then submitted reports of their
concerns about Fagnan’s guns to city investigators, including defendant Mitchell
Demars, who prepared a detailed application for a warrant to search Monty Fagnan’s
home. An Assistant Anoka County Attorney reviewed the warrant application, and
Anoka County Judge John Hoffman authorized the search warrant. In executing the
warrant, city police officers seized two shotguns (whose barrels were measured by
three different officers at a length of 15.5 inches), a hacksaw, and a rifle. Fagnan was
arrested and charged with two counts of felony possession of a short-barreled
shotgun. After his arrest, Anoka County Judge Daniel Kammeyer issued a search
warrant for an airport hangar registered to Fagnan, but no contraband was found
there.

      The Minnesota court conducted omnibus hearings on evidentiary issues and
declined to suppress evidence from the search. After Fagnan pled not guilty and was
acquitted after trial on both counts, he brought several claims at the district court
under § 1983. The only issues on appeal are whether the search of his house and
seizure of his guns violated the Fourth Amendment and whether the officers had




                                          -3-
probable cause to arrest Fagnan.3 The defendants assert they are entitled to qualified
immunity because Fagnan’s constitutional rights were not violated.

                                    II. Discussion

       When the district court has granted a summary judgment motion, we review the
court’s legal conclusions de novo and its fact findings for clear error, considering the
evidence in the light most favorable to the nonmoving party. Morris v. City of
Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008). The existence of probable cause
is a mixed question of law and fact, which we review de novo. United States v.
Brown, 461 F.3d 1062, 1072 (8th Cir. 2006). Granting summary judgment is proper
“if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When the
defense of qualified immunity has been asserted, we evaluate (1) whether defendants
violated plaintiff’s constitutional rights and (2) whether those rights were clearly
established. Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011). If we find
that no constitutional violation occurred, however, our evaluation may end there. See
Crumley v. City of St. Paul, 324 F.3d 1003, 1008 (8th Cir. 2003).

       First, Fagnan argues that the Lino Lakes police officers violated his
constitutional rights when they conducted an illegal search of his home. The Fagnans
consented to the Lino Lakes officers’ entry into their home, and Monty Fagnan
personally escorted the officers to the basement. Nevertheless, Fagnan asserts that
Sergeant Bragelan and Officer Noll exceeded the scope of that consent when they
stood near the laundry room, talking with him about his gun collection. In essence,

      3
        Fagnan also raises in passing a Fifth Amendment claim based on his
conversation with the officers at his house. This claim was not raised in the district
court, and we will not address it now. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004) (citing “our general rule that claims not presented in the district court may not
be advanced for the first time on appeal”).

                                          -4-
Fagnan asserts the police officers were not lawfully in the place from which they
viewed the guns.

       The officers did not exceed the scope of Fagnan’s consent for them to be in the
basement. “The standard for measuring the scope of a [person’s] consent under the
Fourth Amendment is that of ‘objective’ reasonableness—what would the typical
reasonable person have understood by the exchange between the officer and the
suspect?” United States v. McMullin, 576 F.3d 810, 815 (8th Cir. 2009) (quotation
omitted). Here, the officers had to walk though the basement living room to access
the laundry room—the suspected location of the gas leak; the officers stayed near the
laundry room door; and the sawed-off guns were located in a glass-walled cabinet
adjacent to that door. A typical, reasonable person would understand the officers had
permission to remain near the location of the problem that brought them to the house
in the first place. Thus, the officers were lawfully in the basement when they saw, in
plain view, the guns they suspected were unlawfully short. See United States v.
Bustos-Torres, 396 F.3d 935, 944 (8th Cir. 2005) (The Fourth Amendment permits
“an officer, without a warrant, [to] seize an object in plain view provided the officer
is lawfully in the position from which he or she views the object, the object’s
incriminating character is immediately apparent, and the officer has a lawful right to
access the object.”) (citing Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)).

       Second, Fagnan argues that the warrant in this case was issued, and executed,
without probable cause. The officers noticed that two guns in Fagnan’s cabinet
looked too short. The requirement that the guns’ “incriminating nature” be
“immediately apparent” does not mean an officer must know the items are
contraband. United States v. Garner, 907 F.2d 60, 62 (8th Cir. 1990). Rather, the
officer needs only “‘probable cause to associate the property with criminal activity.’”
Id. (quoting Texas v. Brown, 460 U.S. 730, 741–42 (1983)). “Probable cause
demands . . . only that the facts available to a reasonably cautious [person] would
warrant a belief ‘that certain items may be contraband’ . . . .” Id. Although the

                                         -5-
basement lighting was somewhat dim, Officer Noll and Sergeant Bragelan both saw
the odd length of the guns even without the aid of a flashlight. Moreover, Fagnan
admits in his appellate brief that he told the officers “that there were two sawed off
shotguns that were used by sports[men] practicing for competition.” Appellant Br.
at 20.

        A warrant application and affidavit demonstrate probable cause if they
“describe circumstances showing a fair probability that contraband or evidence of a
crime will be found in a particular place.” United States v. Keele, 589 F.3d 940, 943
(8th Cir. 2009) (quotation omitted). The affidavit in support of the warrant to search
the Fagnan home included several details from the officers’ observations: “Officer
Noll, who was standing by, observed two shotguns that were contained in these glass
front cabinets [and] appeared to be of illegal barrel length. . . . Officer Noll observed
the shotguns had standard magazine tubes that hold four 2 3/4 or 3 inch rounds and
that the barrels were cut off just above the magazine tubes.” App. at 940. The
affidavit further stated that Sergeant Bragelan and Officer Noll “from measuring
department shotguns determined that the two they observed at Fagnan’s residence
were of illegal barrel length.” Id. Finally, the affidavit was specific as to what was
sought: “[s]hort barreled ‘sawed off’ shotguns . . . and any other illegally modified
or altered firearms,” “[m]anuals . . . for weapon modification/alteration,” “tools for
altering firearms” and “items to show constructive possession of the above items.”
Id. at 939. Such details adequately show that the warrant was supported by probable
cause.4




      4
       To the extent Fagnan has preserved his malicious prosecution claim on appeal,
our finding that the police had probable cause to conduct the search defeats it. See
Harrington v. City of Council Bluffs, Iowa, 678 F.3d 676, 679–80 (8th Cir. 2012)
(“Sufficient probable cause would defeat the appellees’ § 1983 claims based on
malicious prosecution . . . .”).

                                          -6-
       To the extent that Fagnan also argues the warrant affidavit was based on
misrepresented facts, we agree with the district court that the record does not reflect
the “‘deliberate falsehood’ or ‘reckless disregard for the truth’ [that] violates the
Fourth Amendment.” Bagby v. Brondhaver, 98 F.3d 1096, 1098 (8th Cir. 1996)
(quoting Franks v. Delaware, 438 U.S. 154, 171 (1978)) (describing standard for
imposing § 1983 liability on police officers). “Truthful in this context means that the
information put forth is ‘believed or appropriately accepted by the affiant as true.’”
Morris v. Lanpher, 563 F.3d 399, 402 (8th Cir. 2009) (quoting Franks, 438 U.S. at
165). In response to a motion for summary judgment on the ground of qualified
immunity, Fagnan “may not respond simply with general attacks upon the defendant’s
credibility, but rather must identify affirmative evidence from which a jury could find
that the plaintiff has carried his . . . burden of proving the pertinent motive.” Id. at
403 (quotation omitted). Since Fagnan has made no such demonstration, the district
court properly granted summary judgment on this issue as well.5

       Finally, Fagnan argues that the officers lacked probable cause to arrest him on
the state gun charges. At the time, the officers had a warrant to search the house but
not to arrest him. “‘Probable cause to conduct a warrantless arrest exists when at the


      5
        To the extent that Fagnan preserved for appeal his abuse of process claim, we
decline to decide whether defendants may be liable for abuse of process pursuant to
42 U.S.C. § 1983. See Santiago v. Fenton, 891 F.2d 373, 388 (1st Cir. 1989).
Whether we may evaluate such a claim pursuant to § 1983 (as Fagnan alleges in his
complaint) or under state law, however, he would need to show that the officers
subjectively had an “ulterior purpose.” See Voyticky v. Vill. of Timberlake, 412 F.3d
669, 676–77 (6th Cir. 2005) (If an abuse of process claim is “cognizable as a federal
constitutional claim . . . the elements necessary to prove it would likely mirror those
of state law.”) (citing Cook v. Sheldon, 41 F.3d 73, 79–80 (2d Cir. 1994)); Bigelow
v. Galway, 281 N.W.2d 835, 837 (Minn. 1978) (first element of abuse of process
claim is “the existence of an ulterior purpose”) (citing Hoppe v. Klapperich, 28
N.W.2d 780, 786 (Minn. 1947) (establishing elements in abuse of criminal process
case)). This he has failed to do.

                                          -7-
moment of arrest police have knowledge of facts and circumstances grounded in
reasonably trustworthy information sufficient to warrant a belief by a prudent person
that an offense has been or is being committed by the person to be arrested.’” Frison
v. Zebro, 339 F.3d 994, 997 (8th Cir. 2003) (quoting United States v. Hartje, 251 F.3d
771, 775 (8th Cir. 2001)). Fagnan was arrested after officers executed a valid search
warrant for illegally shortened guns at the home where he was living. During the
search, officers found two shortened firearms in a display case full of Fagnan’s guns
and trophies. See id. (officers had probable cause to arrest plaintiff after they
executed a valid search warrant, finding evidence both of criminal activity and of
plaintiff’s connection to the location, rendering summary judgment for defendants in
§ 1983 case appropriate). Fagnan’s arrest was supported by probable cause and did
not violate his Fourth Amendment rights.

       Defendants argue that Fagnan is collaterally estopped from bringing these
constitutional claims against them at all. More specifically, defendants assert that
because Fagnan did not prevail on his Fourth Amendment-based motion to suppress
in state court, he may not relitigate those claims against them in this forum. See
Crumley, 324 F.3d at 1006 (“This court gives a state court judgment the same
preclusive effect it would be given under the law of the state in which it was
rendered.”) (citations omitted). Because we agree with the district court that the
Lino Lakes police officers’ conduct did not violate Monty Fagnan’s constitutional
rights, we, too, decline to address this argument.

                                  III. Conclusion

      We affirm the district court’s grant of summary judgment in favor of the Lino
Lakes police officers.
                       ______________________________




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