Lawrence Allen v. Chris Monico; Jonathan Kossow

United States Court of Appeals
For the Eighth Circuit
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No. 21-1428
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Lawrence Allen
lllllllllllllllllllllPlaintiff - Appellant
v.
Chris Monico; Jonathan Kossow
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 17, 2021
Filed: March 14, 2022
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Before BENTON, KELLY, and ERICKSON, Circuit Judges.
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KELLY, Circuit Judge.
A state jury found Lawrence Allen (Allen) not guilty of a drug trafficking
offense. After his acquittal, he brought the current civil rights action against two
Lincoln, Nebraska, police officers alleging they conspired to include false statements
in an affidavit of probable cause executed shortly after his arrest. Allen characterizes
the alleged conspiracy as resulting in his unreasonable arrest, false imprisonment, and

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malicious prosecution. The district court1 granted a motion to dismiss, holding the
officers were entitled to qualified immunity because the affidavit provided arguable
probable cause for Allen’s arrest even without the allegedly false statements. We
affirm.
I.
On review of a motion to dismiss, we read the complaint in the light most
favorable to the plaintiff, making all reasonable inferences of fact in the plaintiff’s
favor. See Jacobson Warehouse Co. v. Schnuck Markets, Inc., 13 F.4th 659, 668 (8th
Cir. 2021). We draw the following facts from Allen’s complaint and the affidavit of
probable cause, which he attached to his complaint. See Fed. R. Civ. P. 10(c); Quinn
v. Ocwen Fed. Bank FSB, 470 F.3d 1240, 1244 (8th Cir. 2006) (“[F]actual allegations
. . . are taken from plaintiffs’ complaint, including its attachments.”).
In 2016, Officer Chris Monico, working undercover, purchased a total of
approximately 150 grams of cocaine over the course of 13 controlled purchases from
a man named James Brown (Brown). The purchases were part of an investigation that
focused on several individuals including Brown; Allen’s brother, Lance Allen
(Lance); and a man named Roaul Brown (Roaul), unrelated to Brown. Most of the
purchases followed a pattern: Officer Monico met with Brown, Brown left for a
separate nearby location such as a house or car, and Brown returned with cocaine for
Officer Monico.
Nine of the controlled buys occurred near Lance’s residence. For example, on
April 7, 2016, after Brown informed Officer Monico that he needed to “pick up” the
cocaine from “his guy,” Brown entered Lance’s home, exited after a short while, and
1The Honorable Robert F. Rossiter, Jr., Chief Judge, United States District
Court for the District of Nebraska.
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handed cocaine to Officer Monico. Officer Monico previously had provided Brown
with $200. During this transaction, Officer Monico saw a black SUV parked outside
Lance’s home.
The black SUV was often present at the controlled buys. For example, on June
30, 2016, Officer Monico had arranged to purchase more cocaine from Brown.
Officer Monico arrived at Brown’s residence, Brown got into Officer Monico’s car,
and then he and Officer Monico drove to a bar and grill. In the bar’s parking lot,
Brown exited Officer Monico’s car and entered the rear seat of the same black SUV.
Officers saw Lance in the driver’s seat. Brown then returned to Officer Monico’s
vehicle and handed him 7.8 grams of cocaine.
In addition to their observations during controlled buys, officers learned from
Mirandized interviews and purportedly trusted and reliable confidential informants
that Lance trafficked cocaine, used his home as a storage location, and stored drugs
at other locations around Lincoln. Officers also placed an electronic tracking device
on the black SUV pursuant to a warrant. Although the black SUV was registered to
Roaul, it was Lance who was usually seen driving it. The tracking device showed
that the black SUV frequented the locations believed to be drug storage sites near in
time to the transactions.
Allen himself came to Officer Monico’s attention due to his presence at several
locations during the investigation. The first encounter with Allen happened on April
13, 2016. On that date, Brown and Officer Monico drove to a restaurant in separate
cars for Officer Monico to purchase cocaine from Brown. After parking near the
restaurant, Brown made contact with a third vehicle parked nearby, a white SUV.
Brown returned from the white SUV and handed Officer Monico 3.8 grams of
cocaine. An investigator watched the events from across a highway.
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After the controlled buy, an investigator trailed the white SUV before calling
a patrol car. The patrol car initiated a traffic stop of the white SUV and discovered
Allen was the driver. Allen asserted that he was from Colorado and was visiting and
staying with his brother Lance. The white SUV was a rented vehicle with Oklahoma
plates. Allen had a prior conviction for delivering drugs.
The second encounter with Allen occurred on June 20. On that day,
investigators saw a car with Colorado plates parked at Lance’s home. The
investigator, who was familiar with Allen from a prior booking photo, saw Allen
enter the home carrying an unknown package. The car was registered to Allen.
The third encounter with Allen occurred on June 30. On that day, prior to the
controlled purchase described above, officers saw Allen’s car at Brown’s residence.
Officers saw Allen enter the residence before Allen and Brown left together and
Brown got into Officer Monico’s car.
The fourth encounter with Allen occurred on August 6, 2016, when a SWAT
team arrived at one of the suspected drug storage locations—Roaul’s residence—to
execute a search warrant. Just prior to execution of the warrant, officers saw Roaul
drive away with Allen and Lance as passengers. Officers followed them, stopped
their vehicle in a convenience store parking lot, and arrested Allen based on his
suspected participation in the April 13 controlled purchase. Officers found $1,827
on Allen after his arrest.
Officer Monico then executed the affidavit of probable cause at issue in this
case, resulting in a court finding the officers had probable cause to arrest Allen. In
the affidavit, Officer Monico described the April 13 transaction:
At 1655 hours, Brown made contact with a white 2016 Mitsubishi
Outlander SUV displaying Oklahoma license plates 617 MHG, which
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was parked in front of the businesses at 2712 Cornhusker Highway.
Investigators on the surveillance detail could see the occupant of the
Mitsubishi Outlander was a black male. At 1658 hours, Brown returned
to my unmarked narcotics unit vehicle and provided me with a baggie
containing 3.8 grams of powder cocaine.
In his complaint, Allen argues this statement was intentionally false to buttress
suspicion against him. He asserts specifically that: (1) he was in a nearby business
at the time Brown approached the white SUV and did not return to the white SUV
until after the controlled buy; (2) no one was in the SUV when Brown approached it;
(3) Officer Kossow was the lone surveillance investigator observing the white SUV
such that use of the plural word “investigators” was false; and (4) in any event,
Officer Kossow’s location across a highway would have precluded his observation
of the skin color of any person in the white SUV. The district court rejected Allen’s
arguments, finding that unchallenged portions of the affidavit demonstrated arguable
probable cause.
On appeal, Allen renews his arguments as to the affidavit’s alleged falsity. He
also argues the district court erred by failing in several respects to construe the
affidavit and the complaint in the light favorable to his claims.
II.
We review the grant of the motion to dismiss de novo. See Quinn, 470 F.3d
at 1244.
“Probable cause to make a warrantless arrest exists ‘when the totality of the
circumstances at the time of the arrest are sufficient to lead a reasonable person to
believe that the defendant has committed or is committing an offense.’” Ulrich v.
Pope County, 715 F.3d 1054, 1059 (8th Cir. 2013) (quoting Borgman v. Kedley, 646
F.3d 518, 523 (8th Cir. 2011)). In general, “officers are entitled to qualified
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immunity if they arrest a suspect under the mistaken belief that they have probable
cause to do so, provided that the mistake is objectively reasonable.” Copeland v.
Locke, 613 F.3d 875, 880 (8th Cir. 2010) (citation omitted). As such, “[a] warrantless
arrest is consistent with the Fourth Amendment if it is supported by probable cause,
and an officer is entitled to qualified immunity if there is at least ‘arguable probable
cause.’” Borgman, 646 F.3d at 522–23 (quoting Walker v. City of Pine Bluff, 414
F.3d 989, 992 (8th Cir. 2005)).
If a plaintiff alleges an affidavit contains false statements, we ask whether
probable cause would still exist based on the undisputed facts. See Stockley v. Joyce,
963 F.3d 809, 820–21 (8th Cir. 2020) (examining an affidavit for probable cause and
asking whether “probable cause would have been found if the misrepresentation had
been corrected and the omissions had been included”). Alleged false statements
notwithstanding, qualified immunity remains appropriate “if all the false and reckless
portions of a warrant affidavit are corrected and the corrected affidavit still supports
a finding of probable cause.” Small v. McCrystal, 708 F.3d 997, 1007–08 (8th Cir.
2013) (citation omitted).
Allen treats the majority of the affidavit as uncontested, characterizing as false
the limited passage quoted above. For this appeal, we assume Officer Monico falsely
or recklessly used the plural term “investigators” and falsely claimed law enforcement
witnessed a Black man in the white SUV while it was parked.
Regarding the remaining portions of the affidavit, Allen argues the district
court erred in three respects. First, he argues the district court erroneously relied
upon the discovery of cash on Allen after his arrest as evidence tending to support
probable cause prior to his arrest. Second, he argues the district court erroneously
characterized Allen as having been with James Brown rather than Roaul Brown when
leaving the drug storage house immediately prior to his August 6 arrest. And third,
he argues the district court failed to construe the complaint in his favor because it
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concluded that the undisputed facts showed that Brown obtained cocaine from the
white SUV during the April 13 transaction even though the affidavit merely states
Brown “made contact” with the white SUV.
Allen is right that we must conduct our de novo probable cause review without
reference to the cash discovered post-arrest and with correct identification of Allen’s
companions as Roaul and Lance at the time of his August 6 arrest. See Maryland v.
Pringle, 540 U.S. 366, 371 (2003) (“[W]e examine the events leading up to the
arrest.”). And, regarding Brown’s interaction with the white SUV on April 13, Allen
is correct that the affidavit does not expressly state Brown obtained the cocaine from
the SUV. But, our analysis still requires that we employ common sense when
determining how a reasonable person would assess those facts. United States v.
Abadia, 949 F.2d 956, 959 (8th Cir. 1991).
Taken in this light, uncontested portions of the affidavit show officers knew
on August 6 that Allen repeatedly had been with the targets of their investigation
close in time to cocaine sales. He was present at an adjacent business during the
April 13 transaction and was stopped while driving the white SUV with Oklahoma
plates shortly after that transaction—the vehicle Brown had just “made contact” with
during the controlled purchase. He was present at his brother’s home on June 20 in
his own Colorado-registered vehicle and was seen carrying a package into the home.
He entered Brown’s residence on June 30 shortly before he and Brown left for Brown
to travel with Officer Monico to a controlled purchase. And finally, he departed the
suspected drug storage house on August 6 with his brother and Roaul just prior to the
execution of the search warrant there. A reasonable person would view these facts
against the general backdrop of Allen’s prior drug trafficking conviction and Brown’s
modus operandi of meeting with Officer Monico, splitting off to a retrieval spot, and
returning with cocaine.
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Many of these facts, viewed in isolation, reasonably could be viewed as
innocent, non-criminal association with others who were committing crimes. Viewed
in totality through the lens of common sense, however, the affidavit with the alleged
falsehoods removed still supports probable cause. District of Columbia v. Wesby,
138 S. Ct. 577, 588 (2018) (emphasizing the totality of the circumstances and noting
that “probable cause does not require officers to rule out a suspect’s innocent
explanation for suspicious facts”). The district court properly found the officers
entitled to qualified immunity as to Allen’s Fourth Amendment claim.
III.
Allen presents additional claims, and the parties dispute the exact contours of
those claims. Regardless, all such claims are derivative of the probable cause
argument. Because we conclude Allen’s primary claim fails, we affirm the judgment
of the district court dismissing all of Allen’s claims.
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