UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CARL FOXWORTH,
Plaintiff-Appellant,

v.

BUD RICHARDSON, Marion County
Sheriff, in his individual capacity;
                                                                    No. 97-1001
JIM GRAHAM, Marion County Deputy
Sheriff, in his individual capacity;
VON TURBEVILLE, Marion County
Deputy Sheriff, in his individual
capacity,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
William B. Traxler, Jr., District Judge.
(CA-95-3770-4-21)

Submitted: January 30, 1998

Decided: March 16, 1998

Before ERVIN and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William I. Diggs, Myrtle Beach, South Carolina, for Appellant. L.
Hunter Limbaugh, WILLCOX, MCLEOD, BUYCK & WILLIAMS,
P.A., Florence, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

In this case, the district court found as undisputed material facts
that Carl Foxworth accosted three individuals, blocked their escape,
fired three shots into the sports utility vehicle they were driving, and
directed them to lie on the ground. After they complied, Foxworth
discharged his weapon into the ground near one of the individuals and
kicked two of them. After he was arrested for his role in this incident,
Foxworth sued. Foxworth claims in his civil action under 42 U.S.C.
§ 1983 (1994), that the Marion County Sheriff and two of his deputies
violated Foxworth's constitutional rights as a result of his arrest. The
district court granted summary judgment in favor of the Sheriff and
his deputies. Because we agree that the arrest was supported by prob-
able cause, and find no merit to Foxworth's claim that the Sheriff
intentionally omitted material facts in seeking an arrest warrant, we
affirm.

Foxworth's suit is premised on his allegation that he was arrested
without probable cause. See Taylor v. Waters, 81 F.3d 429, 434 (4th
Cir. 1996). Probable cause is defined as the "`facts and circumstances
within the officer's knowledge that are sufficient to warrant a prudent
person . . . in believing . . . that the suspect has committed, is commit-
ting, or is about to commit an offense.'" United States v. Williams, 10
F.3d 1070, 1073-74 (4th Cir. 1993) (quoting Michigan v. DeFillippo,
443 U.S. 31, 37 (1979)). In determining the existence of probable
cause, courts examine the totality of the circumstances known to the
arresting officer when the arrest is executed. See United States v. Al-
Talib, 55 F.3d 923, 931 (4th Cir. 1995). Foxworth does not contest
that the circumstances noted above, reported to the deputy sheriffs by
the individuals Foxworth accosted and assaulted, would inexorably
lead the Appellees to the conclusion that Foxworth had committed
several offenses. Rather, his contention on appeal is that the deputies,
in relaying this information to the magistrate to obtain several arrest

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warrants, intentionally omitted material facts relevant to the probable
cause determination.

A false or misleading statement in an affidavit used to obtain an
arrest warrant will result in a violation of the Fourth Amendment only
if "the statement is `necessary to the finding of probable cause.'"
Wilkes v. Young, 28 F.3d 1362, 1365 (4th Cir. 1994) (quoting Franks
v. Delaware, 438 U.S. 154, 156 (1978)). Moreover, there must be a
substantial showing that the warrant affiant deliberately misled the
magistrate. See United States v. Jeffus, 22 F.3d 554, 558 (4th Cir.
1994). On appeal, Foxworth contends that the deputies failed to
inform the magistrate of potentially exculpatory information. Presum-
ably, Foxworth believes that the deputies did not include in their
application for the arrest warrants Foxworth's assertions that the indi-
viduals were trespassing, intoxicated and armed with a shotgun.1 Fox-
worth also suggests that the magistrate was not permitted to take into
account that one of the individuals that Foxworth detained was the
son of the first cousin of one of the deputies and the damaged truck
belonged to the other deputy.

Notwithstanding these insinuations, Foxworth failed to present any
evidence of precisely what the applications for the arrest warrant
omitted. Nothing in the record before this court or the district court
provides any evidence of what the deputies included or failed to
include in their application before the magistrate judge. In his brief,
Foxworth claims that he was "rousted from his bed" and "forced to
fire shots into the side of the vehicle to disarm the intoxicated
youths." Appellant's Br. at 13. According to Foxworth, if those facts
had been presented to the magistrate, the circumstances "would not
warrant the belief of a prudent person that Foxworth was committing
an offense." Id. We disagree.2 The specific facts of the situation may
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1 Foxworth alleged that the individual with the shotgun pointed the
weapon at Foxworth's companion. Although this contention is supported
by the deposition testimony of the companion, there is no evidence of
record that the Appellees were apprised of this information before
obtaining the arrest warrants. The deposition testimony of one of the
Appellees that Foxworth only volunteered this information after being
informed he would be charged with criminal conduct is uncontroverted
in the record.
2 Foxworth suggests that it is remarkable that he did not kill anyone.
While we agree that it was fortunate that no one was seriously injured,

                    3
have led Foxworth to believe that he was justified in detaining the
three individuals, discharging his weapon numerous times, damaging
the truck and physically assaulting two of the individuals, but there
can be no question that he was also committing numerous offenses.
Even assuming the Appellees withheld the additional information, as
Foxworth suggests, the inclusion of that information would not have
precluded the magistrate's finding that probable cause existed. See
Wilkes, 28 F.3d at 1365. The district court did not err in its determina-
tion.

Accordingly, we affirm the district court's order granting summary
judgment in favor of the Appellees. In light of our conclusion with
respect to the existence of probable cause, we find no need to address
Foxworth's arguments regarding the Appellees' qualified immunity.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED
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the fact that there was not a fatality does not lead us to the conclusion
that there was no probable cause for an arrest. Counsel's suggestion to
the contrary is alarming.

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