                              In the

 United States Court of Appeals
                For the Seventh Circuit

No. 08-2800

JO W HITLOCK and JESSE W HITLOCK,
                                              Plaintiffs-Appellants,
                                 v.

S HAWN A. B ROWN, individually as an Officer
for the Indiana Department of Natural Resources,

                                               Defendant-Appellee.


         Appeal from the United States District Court for the
     Northern District of Indiana, Hammond Division at Lafayette.
                No. 4:07-CV-004—Allen Sharp, Judge.



    A RGUED F EBRUARY 9, 2009—D ECIDED F EBRUARY 24, 2010




 Before P OSNER and S YKES, Circuit Judges, and D OW,
District Judge.
  S YKES, Circuit Judge. Jo and Jesse Whitlock were
camping at the Indiana Dunes State Park and found




  The Honorable Robert M. Dow, Jr., United States District
Judge for the Northern District of Illinois, sitting by designation.
2                                               No. 08-2800

several bags and other items of property that looked as if
they had been left behind at another campsite. They put
the items in their truck, intending to turn them in to
the park office. They then left the campground to run
errands and forgot the bags were in their truck. By the
time they returned a few hours later, the owner of the
bags had reported them stolen. When the Whitlocks
went to the park office to turn in the property, they
were accused of theft.
  Officer Shawn Brown of the Indiana Department of
Natural Resources (“DNR”) interviewed the couple. They
told him they had picked up the property intending to
turn it in at the park office but simply forgot. Jo Whitlock
added that she decided to take the unattended bags
because she was afraid “some corrupt DNR employee”
would steal the absent camper’s belongings. This com-
ment was gratuitous—and foolish, too, under the cir-
cumstances. Brown thought there was probable cause
for a conversion charge and applied for an arrest war-
rant. The Whitlocks were charged with conversion
and the warrant was issued. They were arrested and
spent four days in jail before being released on bond.
The charges against them were later dropped.
  The Whitlocks sued Brown, claiming he violated their
Fourth Amendment rights by omitting exculpatory facts
from his warrant application. The district court entered
summary judgment for the officer, holding that he
had violated the Whitlocks’ rights but was neverthe-
less entitled to qualified immunity because a reasonable
officer would have believed there was probable cause
No. 08-2800                                             3

to arrest the couple for conversion. The Whitlocks ap-
pealed.
  We affirm. The district court was right to apply
qualified immunity, but its analysis took a wrong turn.
The precise constitutional question in this case is not
whether there was probable cause for the arrest but
whether Brown intentionally or recklessly withheld
material information from his warrant application. As
such, the proper focus of the qualified-immunity in-
quiry is whether it would have been clear to a rea-
sonable officer that the information allegedly omitted
was material to the probable-cause determination.
Under Pearson v. Callahan, 129 S. Ct. 808 (2009), we are
permitted to skip directly to the second question, and we
do so here. Although it is clearly established Fourth
Amendment law that an officer may not intentionally or
recklessly withhold material information from a war-
rant application, it is not clear under Indiana law that
the information Brown allegedly withheld was material
to the probable-cause determination for a charge of crimi-
nal conversion. Brown is therefore entitled to qualified
immunity.


                     I. Background
  Jo and Jesse Whitlock and their daughter went camping
at the Indiana Dunes State Park during the July Fourth
holiday week in 2005. On the morning of July 8, they
were scavenging for firewood and came across several
bags and other items of property at an apparently deserted
campsite. They asked Dianne Miranda, a neighboring
4                                               No. 08-2800

camper, whether anyone was using the site; she said she
had not seen anyone there all morning. The Whitlocks
picked up the bags and other items, put them in their
truck, and told Miranda they would turn the property in
to park authorities. (The park brochure instructed
campers to report lost or found articles to the park office.)
They then got into their truck to go shopping at an area
mall. On their way out of the park, Jo Whitlock got into
an argument with her daughter and forgot about the
bags. The Whitlocks realized their mistake when they
arrived at the mall but decided to finish their shopping
rather than return to the park immediately. Several hours
later, the Whitlocks returned to the park and went
directly to their campsite. Jo Whitlock searched the bags
and found a wallet containing Neil Kohlhoff’s driver’s
license. She called “information” to get Kohlhoff’s phone
number, left a voicemail letting him know they were
taking his bags to the park office, and provided her
name and phone number so Kohlhoff could call her.
  While the Whitlocks were shopping, however, Kohlhoff
had returned to his campsite, found his bags missing,
and reported them stolen. Park Security Officer Victor
Santiago began an investigation. He spoke to Miranda,
who related her earlier conversation with the Whitlocks.
When the Whitlocks finally turned the bags in at the
park office, the attendant on duty accused them of theft.
Officer Santiago interviewed Jo Whitlock; she explained
why they had picked up the bags and why they did not
immediately return them to the park office. DNR Conser-
vation Officer Shawn Brown soon arrived and took over
the investigation. Brown asked Jo Whitlock to repeat
No. 08-2800                                                 5

her story several times. She explained that she forgot
about the bags because she was arguing with her
daughter as the family left the park to go to the mall. She
also told the officer that she decided to take possession
of the bags because she was afraid that “some corrupt
DNR employee” would steal them and felt she had to
“protect them from corrupt DNR employees.” After
taking the Whitlocks’ statements, Brown called Kohlhoff
to verify that he had received a voicemail from Jo
Whitlock and also confirmed that all of Kohlhoff’s be-
longings were returned.
  Two days later, Brown prepared a case report describing
the incident. The report contained the details of his investi-
gation but did not include Jo Whitlock’s explanation
for why she and her husband forgot to stop at the park
office on their way to the mall. Brown also filled out a
standard form “Affidavit for Probable Cause” asserting
that there was probable cause to charge the Whitlocks
with criminal conversion. The probable-cause affidavit was
quite sparse. Beyond identifying the Whitlocks, Kohlhoff,
and the date and time of the offense, the affidavit stated
only that the Whitlocks had committed a criminal conver-
sion by taking Kohlhoff’s property without permission
and “keeping such property for several hours, causing
time and monetary loss.” Brown sent his affidavit to the
Porter County prosecutor’s office seeking a warrant for
the Whitlocks’ arrest. He testified in deposition that he
also attached his more detailed case report and sent that
to the prosecutor as well. This is a point of contention
between the parties, however; the Whitlocks maintain
that Brown withheld the case report from the prosecutor.
6                                             No. 08-2800

  The Whitlocks were charged with conversion in viola-
tion of § 35-43-4-3 of the Indiana Code and an arrest war-
rant was issued. About a month later, they were pulled
over for a license-plate violation and arrested on the
conversion warrant. They spent four days in jail before
being released on bond. The Porter County prosecutor
quickly had a change of heart and dropped the charges.
Due to file-storage constraints, the prosecutor’s file
was destroyed sometime in 2006.
  The Whitlocks sued Brown under 42 U.S.C. § 1983
alleging a violation of their Fourth and Fourteenth Amend-
ment rights. More specifically, they claimed Brown in-
tentionally withheld exculpatory information from his
warrant application. The parties filed cross-motions for
summary judgment, and the district court entered judg-
ment in Brown’s favor. The judge held that Brown
violated the Whitlocks’ Fourth Amendment rights by
withholding his case report from the prosecutor. The
judge concluded, however, that the officer was entitled
to qualified immunity because “a reasonable officer
could have believed that there existed probable cause to
arrest the Whitlocks for [c]onversion.” The Whitlocks
appealed.


                     II. Discussion
    The Whitlocks claim that Brown violated their
Fourth Amendment rights by intentionally or recklessly
withholding exculpatory facts that would have influenced
the warrant-issuing judge’s probable-cause finding. See
Franks v. Delaware, 438 U.S. 154 (1978). Brown disputes
No. 08-2800                                                  7

this and also argues he is entitled to qualified immunity.
Qualified immunity protects police officers from suit to
the extent that their actions “could reasonably have been
thought consistent with the rights they are alleged to
have violated.” Anderson v. Creighton, 483 U.S. 635, 638-39
(1987). Deciding a claim of qualified immunity gen-
erally involves two inquiries: (1) has the plaintiff alleged
facts that, if proved, would establish a constitutional
violation; and (2) would a reasonable officer have
known his actions were unconstitutional in light of
clearly established law? See, e.g., Saucier v. Katz, 533 U.S.
194 (2001). Under Saucier these questions had to be con-
sidered sequentially, but Pearson has relaxed that proto-
col. 129 S. Ct. at 818 (“The judges of the district courts
and the courts of appeals should be permitted to exercise
their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be
addressed first in light of the circumstances . . . .”). We are
now permitted to sidestep the constitutional question
and move directly to the question whether the law was
clearly established at the time of the alleged violation.
Id. We find it appropriate to do so here, but will begin
by sketching the contours of the alleged constitutional
violation.
  Although a plaintiff generally cannot base a Fourth
Amendment claim on an arrest made pursuant to a valid
warrant, in this case the Whitlocks have challenged the
truthfulness of the information relied on to establish
probable cause for the issuance of the warrant. See Franks,
438 U.S. at 171. Although we presume the validity of a
warrant and the information offered to support it, this
presumption is premised on an “assumption . . . that there
8                                                  No. 08-2800

will be a truthful showing” of probable cause. Id. at 164-65
(emphasis in original). Accordingly, the presumption
may give way on a showing that the officer who sought
the warrant “knowingly or intentionally or with a
reckless disregard for the truth, made false statements to
the judicial officer, and that the false statements were
necessary to the judicial officer[’s] determination[] that
probable cause existed for the arrest[].” Beauchamp v. City
of Noblesville, Ind., 320 F.3d 733, 742-43 (7th Cir. 2003)
(citing Franks, 438 U.S. at 155-56). The presumption may
also be overcome by evidence showing that the officer
intentionally or recklessly withheld material facts from
the warrant-issuing judge. See United States v. Sims, 551
F.3d 640, 645 (7th Cir. 2008) (citing United States v. Williams,
737 F.2d 594, 604 (7th Cir. 1984) (“[T]he law allows a
challenge . . . on the ground that material facts were
omitted and that the omission was made intentionally
or with reckless disregard for the truth.”)).
  The Whitlocks’ claim hinges on omissions, not affirma-
tive false statements. They maintain that Brown inten-
tionally or recklessly withheld material exculpatory
information (his case report) from the information he
submitted to the prosecutor for the warrant application.
The materiality of an omitted or misrepresented fact
depends on its relative importance to the evaluation
of probable cause; an omitted fact is material if its inclu-
sion would have negated probable cause. See, e.g.,
Williams, 737 F.2d at 604 (“[T]he omitted fact must be
material—that is, if the fact were included, the affidavit
would not support a finding of probable cause.”). One
way of approaching the materiality question is to ask
No. 08-2800                                                9

“whether a hypothetical affidavit that included the
omitted material would still establish probable cause.”
United States v. Robinson, 546 F.3d 884, 888 (7th Cir. 2008)
(citing United States v. Harris, 464 F.3d 733, 737 (7th Cir.
2006)). In making this determination, we keep in mind
that probable cause is a common-sense inquiry
requiring only a probability of criminal activity; it exists
whenever an officer or a court has enough information to
warrant a prudent person to believe criminal conduct
has occurred. See, e.g., Illinois v. Gates, 462 U.S. 213, 244
n.13 (1983).
  Before we address materiality, however, there is a
threshold dispute about what information Brown sent
to the prosecutor in the first place. Brown testified in
his deposition that he forwarded both his bare-bones
probable-cause affidavit and his more detailed case
report to the prosecutor’s office. The Whitlocks con-
tend that Brown forwarded only the affidavit and in-
tentionally withheld the case report. The difference be-
tween the two versions is significant to the materiality
question. The case report described the underlying in-
vestigation in detail. It included the fact that the
Whitlocks had returned Kohlhoff’s belongings intact
and the fact that the Whitlocks had left Kohlhoff a phone
message letting him know where he could retrieve his
property. The only information missing from the report
was the Whitlocks’ explanation for why they did not
immediately turn in the bags to the park office on their
way out of the park. The affidavit, in contrast, was bereft
of facts supporting probable cause; it merely recited the
elements of the offense and provided basic identifying
10                                              No. 08-2800

information about the suspects and the victim. If only
the affidavit was submitted to the warrant-issuing
judge, we doubt that probable cause could have been
established.
  The district court concluded that the summary-
judgment record supported the Whitlocks’ contention
that Brown did not submit his case report to the prosecu-
tor’s office. The judge noted first that the Porter County
court file did not contain a copy of Brown’s report and
that the prosecutor’s file had been destroyed. The judge
then rejected Brown’s deposition testimony as “self-serving
statements [that] are not sufficient to carry his evidentiary
burden.” This was error. “Self-serving” deposition testi-
mony may satisfy a party’s evidentiary burden on sum-
mary judgment. See Payne v. Pauley, 337 F.3d 767, 772
(7th Cir. 2003). Payne explained that the sufficiency of a
“self-serving” statement depends on whether the state-
ment is based on personal knowledge and whether it is
grounded in observation as opposed to mere specula-
tion. Brown’s testimony that he provided his case report
to the prosecutor easily passes this test. He was not
speculating and his testimony was based on his
personal knowledge.
  The Whitlocks, on the other hand, are unable to refute
Brown’s testimony on this point. First, they affirmatively
alleged in their complaint that Brown sent his case
report to the prosecutor: “Defendant Shawn Brown
completed a supplemental case report which he
attached to a probable cause affidavit . . . .” The Whitlocks
never amended the complaint; indeed, it was not until
No. 08-2800                                               11

their motion for summary judgment that they first sug-
gested that Brown had not attached the report to the
probable-cause affidavit. We need not decide whether
the Whitlocks should be bound by the contrary allegation
in their complaint. See Murray v. United States, 73 F.3d
1448, 1455 (7th Cir. 1996) (“A judicial admission trumps
evidence. This is the basis of the principle that a plaintiff
can plead himself out of court.” (internal citation omit-
ted)); Esmail v. Macrane, 53 F.3d 176, 179 (7th Cir. 1995).
There is no evidence that Brown withheld his case report
from the prosecutor; the Whitlocks’ argument is based
entirely on inference. That is, they suggest that we
infer, as the district court apparently did, that Brown
withheld his case report from the prosecutor because
there was no copy of it in the court file.
   Under the circumstances here, this inference is unrea-
sonable. Prosecutors—not police officers—are responsible
for submitting documentary evidence to the court, and
this ordinarily occurs during the course of a motion
hearing or trial. The charges against the Whitlocks were
dropped early on in the case, so there was no reason for
the prosecutor to file Brown’s case report with the
court. For what it’s worth, we note as well that when a
copy of the case report was marked as an exhibit during
Brown’s deposition, the Whitlocks’ counsel stated for
the record that he had gotten it from the Porter County
prosecutor’s office. He wasn’t testifying, of course, and
it’s unclear when the attorney obtained the copy (the
parties agree that the prosecutor’s file was destroyed
sometime in 2006). The material point is that the
Whitlocks have no evidence—nor any reasonable infer-
12                                              No. 08-2800

ence from the evidence—that Brown withheld his case
report from the prosecutor. It’s pure speculation.
  This conclusion does not end our inquiry. The case
report itself contained an omission: Brown did not
include the Whitlocks’ innocent explanation for why
they left the park with Kohlhoff’s bags. This requires us
to decide whether this information was material to the
warrant-issuing judge’s probable-cause determination.
Indiana’s criminal-conversion statute provides that a
“person who knowingly or intentionally exerts unautho-
rized control over property of another person commits
criminal conversion.” IND. C ODE § 35-43-4-3. Control over
property is “unauthorized” in eight statutorily specified
situations. One is applicable here: Control is “unautho-
rized” if it is exerted “without the other person’s consent
[or] in a manner or to an extent other than that to which
the other person has consented.” Id. § 35-43-4-1(b); Taylor
v. State, 445 N.E.2d 1025, 1027 (Ind. Ct. App. 1983). The
statute requires that the offender act “knowingly or
intentionally,” see Midland-Guardian Co. v. United Consumers
Club, Inc., 499 N.E.2d 792, 798 (Ind. Ct. App. 1986) (observ-
ing that the State must prove “not only that [defendant]
exerted unauthorized control over . . . property, but
also that [defendant] was aware of a high probability
that this control was unauthorized”), and a defendant’s
reasonable belief that he controlled or continued to
control property with the owner’s consent will defeat this
element of conversion, see, e.g., Manzon v. Stant Corp., 138
F. Supp. 2d 1110, 1116-17 (S.D. Ind. 2001). The statute
does not require that the defendant intend to permanently
deprive the owner of his property. See Bennett v. State,
871 N.E.2d 316, 322 (Ind. Ct. App. 2007).
No. 08-2800                                             13

  The materiality of the Whitlocks’ innocent explanation
depends on how Indiana would address the issue of
owner’s consent in cases involving lost or mislaid prop-
erty. Perhaps an Indiana court would hold that
finders of lost property have implied consent from the
owner to exert control for the limited purpose of
returning it. Applying the law with this judicial gloss,
Brown’s failure to include the Whitlocks’ innocent ex-
planation in his case report may well have been a
material omission. The Whitlocks’ explanation would
support a conclusion that they did not exercise “unautho-
rized” control over the bags; under a doctrine of
implied consent, Kohlhoff would have consented to the
Whitlocks’ control over his unattended property for the
purpose of taking it to the park office for safekeeping.
On the other hand, because the Whitlocks kept
Kohlhoff’s belongings in their car for several hours, they
might have exceeded the scope of any implied consent.
But their explanation that they simply forgot about the
bags in the midst of a heated argument sheds further
light on this question. That the Whitlocks called
Kohlhoff and then returned the bags intact also sup-
ports an exculpatory interpretation of their conduct.
  In the end, however, any consideration of implied
consent is academic. The Whitlocks have not directed us
to any Indiana cases purporting to establish an implied-
consent defense to a charge of criminal conversion,
either as a general matter or more specifically where lost
or mislaid property is involved. Nor have we found
any ourselves. Given the breadth of Indiana’s criminal-con-
version statute and the apparent absence of an implied-
14                                                    No. 08-2800

consent defense, the Whitlocks’ excuse was irrelevant to
the probable-cause determination—or at least of
such questionable relevance that Brown is entitled to
qualified immunity. At best, Indiana law is undeveloped
in this area.
  Qualified immunity tolerates reasonable mistakes
regarding probable cause. See Malley v. Briggs, 475 U.S.
335, 343 (1986). Under the circumstances here, a rea-
sonable officer would not have known one way or the
other whether the Whitlocks’ explanation for their
conduct was material to the probable-cause determi-
nation for criminal conversion under Indiana law.1 Ac-


1
  Given the breadth of Indiana’s conversion statute and the
undeveloped state of its law on implied consent, we could just
as easily conclude that Brown did not act with the required
mental state to violate the Whitlocks’ constitutional rights. An
officer violates the Fourth Amendment if he omits facts with the
intent to deceive or with a reckless disregard for whether
the warrant-issuing judge would be deceived. See United States
v. Awadallah, 349 F.3d 42, 67-68 (2d Cir. 2003); United States
v. Colkley, 899 F.2d 297, 300-01 (4th Cir. 1990). That is, the
officer must have “failed to inform the judicial officer of facts
[he] knew would negate probable cause.” Beauchamp, 320 F.3d at
743. Alternatively, reckless disregard may be inferred if the
omitted facts were “clearly critical” to a probable-cause deter-
mination. See, e.g., Rivera v. United States, 928 F.2d 592, 604 (2d
Cir. 1991). As we have explained, it is unclear under Indiana
law whether the Whitlocks’ innocent explanation would have
made any difference to the probable-cause determination. Under
these circumstances, Brown cannot have known whether the
                                                      (continued...)
No. 08-2800                                                  15

cordingly, we come to the same conclusion as the district
court, albeit by a somewhat different analysis. Brown is
entitled to qualified immunity. The judgment of the
district court is A FFIRMED.




1
  (...continued)
omitted explanation was “clearly critical” to the probable-cause
determination, much less whether it would negate probable
cause.



                             2-24-10
