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Wednesday, February 24, 2010

Ind. Decisions - 7th Circuit decides Indiana case today

In Whitlock v. Brown (ND Ind., Sharp), a 15-page opinion, Judge Sykes writes:

Jo and Jesse Whitlock were camping at the Indiana Dunes State Park and found 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 comment was gratuitous—and foolish, too, under the circumstances. Brown thought there was probable cause for a conversion charge and applied for an arrest warrant. 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 nevertheless entitled to qualified immunity because a reasonable officer would have believed there was probable cause to arrest the couple for conversion. The Whitlocks appealed.

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 inquiry is whether it would have been clear to a reasonable 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 warrant 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 criminal conversion. Brown is therefore entitled to qualified immunity.

An interesting statement from pp. 13-14, also continued in a footnote:
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 impliedconsent 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-conversion statute and the apparent absence of an implied 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.

Posted by Marcia Oddi on February 24, 2010 11:11 AM
Posted to Ind. (7th Cir.) Decisions