                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                  ________________

                                     No. 97-4007
                                  ________________

Patricia Mueller, Paul Mueller,             *
                                            *
             Appellees,                     *
                                            *      Appeal from the United States
      v.                                    *      District Court for the
                                            *      Eastern District of Missouri.
Douglas Tinkham and Michael                 *
Hanlen,                                     *
                                            *
             Appellants.                    *
                                            *
                                            *
                                            *

                                  ________________

                                  Submitted: May 11, 1998
                                      Filed: December 16, 1998
                                  ________________

Before BOWMAN, Chief Judge, HEANEY and HANSEN, Circuit Judges.
                          ________________

HANSEN, Circuit Judge.

        Patricia and Paul Mueller brought this 42 U.S.C. § 1983 action asserting that the
appellants violated the Muellers' civil rights by applying for and executing a search
warrant on the Muellers' home without probable cause, and conspiring to violate their
civil rights. The appellants, Detective Douglas Tinkham and his supervisor, Detective
Sergeant Michael Hanlen, both employed by the City of O'Fallon, Missouri, sought
summary judgment on the basis of qualified immunity. The district court1 denied their
motions for summary judgment, and the officers now appeal.

                                           I.

        The Muellers reside at #40 Country Lane Court in St. Charles County, Missouri.
On April 30, 1996, at approximately 9:30 p.m., the St. Charles County Tactical
Response Team forcibly entered the Muellers' home and restrained the Muellers at
gunpoint. Detectives Tinkham and Hanlen then entered the home and searched the
residence for over an hour looking for illegal firearms and evidence of the sale of
illegal firearms.

       The search of the Muellers' residence was the result of an investigation begun
in April 1996, when Special Agent Ray Fragoso of the Federal Bureau of Alcohol,
Tobacco & Firearms and Detective Tinkham of the police department for the City of
O'Fallon, Missouri, began a joint investigation regarding the sale of illegal firearms in
St. Charles County. During the course of this investigation, Tinkham and Fragoso met
with an informant, Matthew Hoppe, who provided them with information in an attempt
to gain leniency for state charges he was facing. Hoppe informed the officers that a
man named Terry Vaught resided at #40 Country Lane Court and was selling illegal
firearms from the residence. Hoppe said he had obtained an illegal firearm from
Vaught and would show it to the officers, but he never produced the weapon despite
several requests from the detectives to do so. Tinkham, Fragoso, and Hanlen then
searched Hoppe's residence, but they did not find the illegal weapon Hoppe had told
them about. During the search, Hoppe's mother arrived and told the officers her son
is a manic depressive and a pathological liar, so they should not believe anything he



      1
       The Honorable Mary Ann L. Medler, United States Magistrate Judge for the
Eastern District of Missouri, trying the case by consent of the parties pursuant to 28
U.S.C. § 636(c).
                                           2
said. Hoppe admitted to the officers that he had lied about the gun. The officers then
forcibly took Hoppe back to the police station and instructed him to write out his
previous statement. In this written statement, Hoppe attested that he knew Terry
Vaught and that Terry Vaught was selling illegal firearms from his residence at #40
Country Lane Court.

       Detective Tinkham applied for and obtained a search warrant for #40 Country
Lane Court to search for illegal firearms, supported by Hoppe's affidavit and
Tinkham's own assertion that Hoppe was an informant whose information had proved
reliable in the past. Hoppe denies ever having given information in the past. Sergeant
Hanlen reviewed and approved the search warrant materials prior to their submission
to the state court.

        After obtaining the warrant but prior to its execution, the officers learned that
Vaught was actually residing at a location in Portage DeSioux, Missouri, and not at
#40 Country Lane Court. They also learned that the utilities at #40 Country Lane
Court were in the name of the Muellers. The only information given by Hoppe
relevant to this particular residence that the officers were able to independently verify
was Hoppe's description of the outside front of the residence, which was visible from
the street. The officers executed the warrant at approximately 9:30 p.m. First, a ten-
member team forcibly entered #40 Country Lane Court, restrained the Muellers, and
secured the premises to avert the threat of illegal firearms. Thereafter, Tinkham,
Hanlen, and Fragoso entered the residence and searched it for over an hour before they
left with no evidence and no sign of Vaught.

       The Muellers brought this civil rights suit, alleging that Tinkham, Hanlen, and
Fragoso violated their Fourth Amendment rights by applying for and executing the
warrant, and that they engaged in a conspiracy to violate the Muellers' civil rights. The
three officers moved for summary judgment, but the district court denied their motions,
finding that material disputes of fact existed as to whether they acted in an objectively

                                           3
reasonable manner. All three defendants appealed, but Special Agent Fragoso
subsequently withdrew his appeal, leaving only the appeals of Tinkham and Hanlen
before this court.

                                          II.

       "We review a denial of summary judgment de novo, applying the same standard
that governed the district court's decision." Collins v. Bellinghausen, 153 F.3d 591,
595 (8th Cir. 1998). This standard requires us to view the evidence in the light most
favorable to the nonmoving party and to accept as true the nonmoving party's statement
of the facts. Guite v. Wright, 147 F.3d 747, 749 (8th Cir. 1998). We have jurisdiction
to review the denial of summary judgment based on qualified immunity, but that
jurisdiction is limited to abstract issues of law and does not extend to arguments
concerning the sufficiency of the evidence. Collins, 153 F.3d at 595 (citing Behrens
v. Pelletier, 516 U.S. 299, 313 (1996)). However, public officials are permitted to
claim on appeal that their actions were objectively reasonable in light of their
knowledge at the time of the incident. Id. We affirm the denial of summary judgment
based on qualified immunity if there exists a genuine issue of material fact or the
moving party is not entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).
See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

       Detectives Tinkham and Hanlen claim that the district court erred by denying
summary judgment on the basis of qualified immunity. When state officials are sued
for violating a clearly established federal right, the doctrine of qualified immunity
shields them from personal liability if a reasonable official in their position would not
have known that his actions violated a clearly established right. See Walden v.
Carmack, 156 F.3d 861, 868-69 (8th Cir. 1998). In other words, "[t]he qualified
immunity doctrine shields state actors from personal liability where their actions,
though unlawful, are nevertheless objectively reasonable in light of the clearly



                                           4
established law at the time of the events in question." Rogers v. Carter, 133 F.3d 1114,
1119 (8th Cir. 1998) (citing Anderson v. Creighton, 483 U.S. 635, 638-39 (1987)).

        Clearly established Fourth Amendment law requires a warrant application to
contain a truthful factual showing of probable cause--"truthful in the sense that the
information put forth is 'believed or appropriately accepted by the affiant as true.'"
Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Franks v.
Delaware, 438 U.S. 154, 165 (1978)). To preclude a grant of qualified immunity, a
"warrant application [must be] so lacking in indicia of probable cause as to render
official belief in its existence unreasonable." George v. City of St. Louis, 26 F.3d 55,
57 (8th Cir. 1994) (citing Malley v. Briggs, 475 U.S. 335, 344-45 (1986)). For
purposes of qualified immunity, "[t]he issue is not whether the affidavit actually
establishes probable cause, but rather whether the officer had an objectively reasonable
belief that it established probable cause." Thompson v. Reuting, 968 F.2d 756, 760 (8th
Cir. 1992).

        Detective Tinkham and Sergeant Hanlen claim that they had an objectively
reasonable belief that Hoppe's affidavit established probable cause to support issuance
of the search warrant. Hoppe's statement was the sole basis for the search warrant
application. When a search warrant affiant relies on the statement of an informant, the
reliability of that informant is a key issue. Walden, 156 F.3d at 870. The information
provided by an informant is sufficient to support a probable cause finding if the person
has provided reliable information in the past or if the information has been
independently corroborated. Id.

       The district court aptly observed that "the facts concerning the reasonableness
of [the officers'] application for the search warrant are vastly disputed." (Appellants'
Adden. at 8.) Detective Tinkham attested that Hoppe had provided reliable information
in the past, but Hoppe says he had never before provided any information. Contrary to
Tinkham's assertion that Hoppe was reliable, the officers had knowledge and reason

                                           5
to believe that Hoppe was not truthful. Hoppe admitted lying to the officers about his
ability to produce an illegal firearm which he said he obtained from Vaught. Also,
Hoppe's own mother told them that Hoppe was untruthful--in fact, a pathological liar.
This information was not included in the search warrant materials, and it raises a
genuine question about whether Tinkham and Hanlen reasonably believed that Hoppe's
statement supplied probable cause to support the warrant.

        Tinkham and Hanlen contend that Hoppe's statement was reliable because they
independently verified his description of the outside of the residence (a description
available to anyone who drove by the residence), he made self-incriminating admissions
in his statement, he provided detailed firsthand observations, and Tinkham interviewed
Hoppe personally. Such factors are important in determining the reliability of an
informant. See United States v. LaMorie, 100 F.3d 547, 553 (8th Cir. 1996) (noting
personal contact with an informant can strengthen an officer's decision to rely on the
information provided and statements against penal interest carry considerable weight).
However, because the officers knew of the conflicting information concerning Hoppe's
truthfulness, there remains a question of whether they acted in an objectively reasonable
manner regarding their application for the search warrant, and they have thus failed to
prove that they are entitled to qualified immunity on this claim.

        Tinkham and Hanlen also argue that they are entitled to qualified immunity for
their conduct in executing the search warrant. They assert that their conduct was not
unreasonable--they did not take part in the forcible entry to the home, they did not
physically restrain the Muellers, they caused no damage to the house, and Hanlen was
justified in searching the Muellers' computer for records of illegal firearm sales. The
district court concluded that Tinkham and Hanlen are not entitled to qualified immunity
for their conduct in executing the search warrant, because genuine issues of material
fact existed concerning whether Tinkham and Hanlen were reasonable in their belief
that the search warrant was supported by probable cause.



                                           6
       The actual conduct of Tinkham and Hanlen while executing the warrant is
irrelevant to our analysis. Instead, qualified immunity in this case turns on whether
they reasonably believed that the warrant was supported by probable cause when it was
issued and executed. An officer is entitled to rely on a warrant that the officer
reasonably believes to be valid. United States v. Humphrey, 140 F.3d 762, 765 (8th
Cir. 1998); see also United States v. Leon, 468 U.S. 897, 922-23 (1984) (noting that
reliance on a warrant must be objectively reasonable). Conversely, an officer is not
entitled to qualified immunity where his reliance on the warrant is not objectively
reasonable. We have already noted that material questions of fact existed concerning
the objective reasonableness of the warrant application, given the detectives' personal
knowledge of facts indicating that probable cause might be lacking. Additionally, the
detectives learned information after the warrant issued which also cast doubt on the
validity of the warrant. These remaining material issues of fact bearing on whether the
officers reasonably believed probable cause to search existed preclude the grant of
qualified immunity for Tinkham and Hanlen's conduct in executing the warrant.

        Finally, the officers assert that the district court erred by denying summary
judgment on the conspiracy claim, arguing that the undisputed facts establish that there
was no conspiracy and, alternatively, that they are entitled to qualified immunity from
the conspiracy claim. A constitutional conspiracy requires a showing that two or more
persons conspired to deprive another of a constitutional right and that an act was done
in furtherance of the conspiracy which caused an injury. Marti v. City of Maplewood,
Missouri, 57 F.3d 680, 685 (8th Cir. 1995). The district court denied summary
judgment on this claim, concluding that there is a material issue of fact over whether
a conspiracy existed. We lack jurisdiction in this qualified immunity appeal to address
the district court's denial of summary judgment on this basis. See Johnson v. Jones, 515
U.S. 304, 313 (1995) (holding a summary judgment order determining "only a question
of 'evidence sufficiency,' i.e. which facts a party may, or may not, be able to prove at
trial," is not immediately appealable.)



                                           7
        In a footnote, the district court noted alternatively that the officers were not
entitled to qualified immunity on the conspiracy claim, explaining that the same
disputed facts that prevented qualified immunity on the first two claims necessarily
defeat qualified immunity on this claim as well. We agree. Qualified immunity
protects "state actors from personal liability where their actions, though unlawful, are
nevertheless objectively reasonable in light of the clearly established law." Rogers, 133
F.3d at 1119. Detective Tinkham, Sergeant Hanlen, and Special Agent Fragoso all
worked closely together on this case, and the disputed facts bearing on Hoppe's
reliability were within their personal knowledge. These disputed facts call into question
the reasonableness of the officers' belief that the warrant was supported by probable
cause. Absent an objectively reasonable belief that the warrant was supported by
probable cause, the officers' joint efforts to apply for and to execute the warrant would
not be entitled to the protection of qualified immunity.

                                          III.

    Accordingly, we affirm the order of the district court denying the motion for
summary judgment.

      A true copy.

             Attest:

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




                                            8
