                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
            ___________

            No. 99-1302
            ___________

Vivian Womack,                       *
                                     *
            Plaintiff-Appellee,      *
                                     *
      v.                             *
                                     *
City of Bellefontaine Neighbors;     *
                                     *
            Defendant,               *
                                     *
Thomas Sheehan; William McClure;     *
                                     *
            Defendants-Appellants,   *
                                     *
Darren Marhanka,                     *
                                     *
            Defendant.               *
                                         Appeals from the United States
            __________                   District Court for the Eastern
                                         District of Missouri.
            No. 99-1303
            __________

Vivian Womack,                       *
                                     *
            Plaintiff-Appellee,      *
                                     *
      v.                             *
                                     *
City of Bellefontaine Neighbors;     *
Thomas Sheehan; William McClure;     *
                                     *
           Defendants,               *
                                     *
Darren Marhanka,                     *
                                     *
           Defendant-Appellant.      *
                                ___________

                           Submitted: September 17, 1999
                               Filed: October 19, 1999
                                  ___________

Before BEAM, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

FAGG, Circuit Judge.

     Vivian Womack brought this 42 U.S.C. § 1983 action against police officers
Thomas Sheehan, William McClure, and Darren Marhanka (collectively the officers),
who now appeal the denial of their summary judgment motion. We affirm.

       We view the evidence in the light most favorable to Womack, the nonmoving
party in this case. See Kuehl v. Burtis, 173 F.3d 646, 648 (8th Cir. 1999). Womack
and her husband are both Missouri bail bondsmen. After Shannon Adams, an arrestee
for whom Womack's husband posted bond, failed to appear in court, the Womacks
went to the home of Adams's grandparents to arrest him. As Womack's husband
approached the front door, Adams exited the back door where Womack was waiting
for him. Womack stopped Adams, identified herself, and explained she had a warrant
for his arrest. Adams then asked if he could go back inside to tell his grandmother;
Womack consented and followed Adams into the house. When Adams's grandmother
saw them, she began screaming and urging Adams to run. Adams jerked away from
Womack, who attempted to control Adams with pepper spray, but Adams grabbed his
grandmother and, using her as a shield, escaped out the back door.

                                        -2-
       While driving around the neighborhood looking for Adams, the Womacks
flagged down police officer Marhanka and were explaining the situation when
Marhanka received a call about an assault at the home of Adams's grandparents.
Marhanka instructed the Womacks to continue their search while he answered the
assault call. After a fruitless hunt for Adams, the Womacks returned to the
grandparents' house. Marhanka then asked the Womacks to follow him to the police
station so he could copy their warrant and bail bondsmen forms.

       Once at the station, police officer Sheehan informed Womack that he was going
to see about charging Womack for macing Adams's grandmother. Sheehan consulted
the county prosecutor, who told Sheehan that Womack "probably had no authority to
mace the grandmother and that [she] possibly could be charged with burglary, trespass,
or assault . . . [and] further advised . . . Sheehan that he could present his police report
and make a warrant application during the next regular business day at [the
prosecutor's] office." (Prosecutor's Aff. at ¶ 3.) Sheehan also called police officer
McClure, who told Sheehan he was uncertain whether Womack had authority to take
custody of Adams in the manner she did but authorized Sheehan to "go ahead and
arrest and book her." (J.A. at 80.)

       Sheehan arrested Womack for first-degree burglary and second-degree assault.
These charges were never prosecuted. Womack later brought this § 1983 action
against the officers, alleging they arrested her without probable cause. The magistrate
judge, to whose jurisdiction the parties consented under 28 U.S.C. § 636(c), denied the
officers' motion for summary judgment, concluding that reasonable officers could not
have believed they had probable cause to arrest Womack for the charged crimes and
that the officers were not entitled to qualified immunity.

      On appeal, the officers first contend the district court committed error in
concluding they were not entitled to qualified immunity for arresting Womack on
charges of first-degree burglary and second-degree assault. In considering the officers'

                                            -3-
contention, we must decide whether Womack has alleged a clearly established
constitutional right and whether reasonable officers in the position of these officers
would have known that their actions violated that right. See Kuehl, 173 F.3d at 649.
Womack's Fourth Amendment right not to be arrested without probable cause is
certainly clearly established. See id. Thus, the officers are entitled to qualified
immunity only if they arrested Womack with the objectively reasonable belief that they
had probable cause to do so – even if they were mistaken. See id.; Ripson v. Alles, 21
F.3d 805, 808 (8th Cir. 1994). "Probable cause existed in the present case if, at the
moment [the officers] arrested [Womack], the facts and circumstances within [the
officers'] knowledge and of which [they] had reasonably trustworthy information were
sufficient to warrant a prudent person in believing [Womack committed the charged
crimes]." Ripson, 21 F.3d at 808; accord Kuehl, 173 F.3d at 650. Evidence tending
to show Womack did not commit the charged crimes is relevant to whether the officers
had probable cause to arrest her because officers contemplating an arrest cannot
"disregard plainly exculpatory evidence, even if substantial inculpatory evidence
(standing by itself) suggests that probable cause exists." Kuehl, 173 F.3d at 650;
accord Ripson, 21 F.3d at 808; Peterson v. City of Plymouth, 60 F.3d 469, 476-77 (8th
Cir. 1995).

       At the moment the officers arrested Womack, they possessed information given
them by Adams's grandmother and by Womack. Adams's grandmother told the officers
Womack entered the house, tried to grab Adams, and then maced both Adams and the
grandmother. The officers also knew, however, that Womack was a bail bondsman
with the proper identification and authorization papers and a valid arrest warrant for
Adams. Additionally, the officers had Womack's uncontradicted statement that she
stopped Adams outside the house and identified herself, that Adams had invited her
inside so he could tell his grandmother where he was going, that the scuffle occurred
when Adams attempted to break away from Womack, that Womack tried to control
Adams with her pepper spray because she was afraid the grandmother would get hurt,


                                         -4-
and that the grandmother was accidentally maced only because Adams pulled her
between himself and Womack.

       Analyzing the weight of all this evidence, see Kuehl, 173 F.3d at 650, we agree
with the district court that the officers are not entitled to qualified immunity. In
arresting Womack for these crimes, the officers ignored plainly exculpatory evidence
showing that Womack did not unlawfully enter the house of Adams's grandmother with
the intent to commit a crime, see Mo. Rev. Stat. § 569.160.1 (1994) (first-degree
burglary); that Womack did not attempt to cause or knowingly cause Adams's
grandmother physical injury, see id. § 565.060.1(2) (second-degree assault); and that
Womack did not recklessly cause Adams's grandmother serious physical injury, see id.
§ 565.060.1(3) (same). See Kuehl, 173 F.3d at 650-51. Thus, based on all the facts
and reasonably trustworthy information known to the officers at the time, we conclude
reasonable officers would not have believed probable cause existed to arrest Womack
on the charges of first-degree burglary and second-degree assault. See id.; Ripson, 21
F.3d at 808.

       The officers also argue they are entitled to qualified immunity because they
relied on the county prosecutor's advice in arresting and charging Womack. (Sheehan
& McClure Br. at 24-25; Marhanka Br. at 33.) We disagree. Following a prosecutor's
advice "does not automatically cloak [officers] with qualified immunity, but rather, is
used to show the reasonableness of the action taken," E-Z Mart Stores, Inc. v. Kirksey,
885 F.2d 476, 478 (8th Cir. 1989), and, viewed in the light most favorable to Womack,
the record shows the officers did not follow the prosecutor's counsel in this instance.
The prosecutor did not tell the officers to arrest Womack, but rather advised them to
present their police report and warrant application in his office during the next business
day.

      Alternatively, the officers argue that, although they might not have had probable
cause to arrest Womack for first-degree burglary or second-degree assault, they did

                                           -5-
have probable cause to arrest Womack for other closely related offenses. Marhanka
also separately argues he is entitled to qualified immunity because he did not participate
in Womack's arrest and, in fact, opposed it. Because the officers did not present these
issues to the magistrate judge, we decline to address them for the first time on appeal.
See Mayard v. Hopwood, 105 F.3d 1226, 1227 n.1 (8th Cir. 1997).

          The district court properly denied the officers' summary judgment motion. We
affirm.

      A true copy.

               Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                           -6-
