Henry H. Howe v. Steven Gilpin, in his individual capacity

United States Court of Appeals
For the Eighth Circuit
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No. 22-1860
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Henry H. Howe
Plaintiff Appellant
v.
Steven Gilpin, in his individual capacity, et al.
Defendants Appellees
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Appeal from United States District Court
for the District of North Dakota - Eastern
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Submitted: December 13, 2022
Filed: April 20, 2023
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Before LOKEN, MELLOY, and KOBES, Circuit Judges.
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LOKEN, Circuit Judge.
In late 2013, Barbara Whelan, State’s Attorney for Walsh County, North
Dakota, and agents of the Grand Forks Narcotics Task Force (“GFNTF”), were
preparing to try pending drug charges against Paul Lysengen. Delicia Glaze and
Scott Kraft were the lead GFNTF agents, supervised by Steven Gilpin. The charges
were based primarily on a May 2013 controlled buy by a confidential informant, EB.

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Lysengen was represented by attorney Henry Howe. His stepson, Anthony Haase,
pleaded guilty in a related case and was incarcerated.
In January 2014, Steven Anderson, facing felony theft charges in Grand Forks
County, told Gilpin that EB was in danger. Anderson agreed to act as a GFNTF
informant. He attended meetings with Lysengen, Howe, and Wesley Smith and
secretly recorded comments that provided probable cause to believe a conspiracy to
murder EB was afoot. On January 30, Glaze prepared and submitted a Felony
Complaint charging Howe with Criminal Conspiracy to Commit Murder, together
with a supporting affidavit. A Walsh County District Judge issued a warrant for
Howe’s arrest for that offense, commencing the criminal prosecution. See N.D.R.
Crim. P. 3(a), 4(a)(1). Howe was arrested that day at the start of a preliminary
hearing in one of Lysengen’s criminal cases.
Some months later, prosecutor Whelan dismissed the amended charge against
Howe, prior to the preliminary hearing, after learning that Anderson previously made
false murder-for-hire allegations to Nebraska and Minnesota law enforcement
authorities. Howe then filed this § 1983 lawsuit against Gilpin, Glaze, Kraft, and
Whelan. After reciting Anderson’s lengthy prior criminal history, Howe alleged two
Fourth Amendment violations: (I) the warrant was based upon deliberate falsehood
or reckless disregard for the truth -- the use of Anderson to develop and generate false
evidence incorporated in Glaze’s affidavit; and (ii) defendants deprived Howe of a
preliminary hearing at which Howe would have been discharged because the warrant
was not supported by probable cause.1 Howe appeals the grant of summary judgment
1Howe did not pursue this claim in resisting defendants’ motion for summary
judgment, and for good reason -- it is not a Fourth Amendment claim. Rule 4(a)(1)
provides that if it appears from the criminal complaint and supporting affidavit that
there is probable cause the offense has been committed, “the magistrate must issue
an arrest warrant.” Howe concedes Glaze’s affidavit on its face made an adequate
showing of probable cause, so his arrest was not an unconstitutional seizure. A
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dismissing these claims. Howe v. Gilpin, No. 3:20-CV-00013, 2022 WL 1295832
(D.N.D. Mar. 28, 2022). Reviewing de novo, we agree with the district court2 that the
affidavit provided probable cause to arrest Howe, even if corrected to include the
information Howe alleges was recklessly omitted. Accordingly, we affirm.
I. Background
Glaze’s January 30 affidavit recited that there were two pending criminal
charges against Lysengen arising out of EB’s May 2013 controlled buy of
methamphetamine. The first was scheduled for trial in April, the second for a
preliminary hearing later that day. The GFNTF investigation revealed that, in
November contacts with Haase in prison, Lysengen said he knew EB’s identity.
Lysengen and Haase discussed finding a way to “set up” the informant. Lysengen
wrote in December, “There will be someone to visit our friend in [rural Walsh
County, EB’s location] just to show how grateful we are of what was done.”
At this time, Lysengen was staying with Anderson, whom he met in a county
jail in 2013. On January 14, 2014, Anderson reported to GFNTF that on January 9
Lysengen and Smith had discussed a plan to murder EB. Smith produced a map of
defendant may factually attack the warrant affidavit at his subsequent preliminary
hearing, where the court makes a finding that there is probable cause to hold the
defendant over for trial, or he is discharged. See Sivertson v. McLees, 407 N.W.2d
799, 800 (N.D. 1987); N.D. R. Crim. P. 5.1. But that determination is based in part
on evidence gathered after the defendant’s arrest. Here, a map, photo of EB, and
loaded handgun -- evidence of the alleged conspiracy described by Anderson during
his January 14 interview -- were found in co-defendant Smith’s home when he was
arrested the same day as Howe.
2The Honorable Daniel M. Traynor, United States District Judge for the District
of North Dakota. The court also dismissed Howe’s § 1983 and state law malicious
prosecution claims. Howe does not appeal those rulings.
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EB’s residence and said EB was an antiques collector. The plan was that Anderson
would call EB, discuss antiques, and arrange a meeting at which Smith would kill her
and Rodney Avron, a drug dealing associate of Lysengen, would dispose of the body.
Glaze’s affidavit recited that GFNTF surveillance confirmed Anderson and
Lysengen were often together. Anderson reported attending a January 22 meeting
with Howe and Lysengen about making EB “go away.” Howe said, “it would be
good if the b**** died or went away.” Lysengen asked what would happen if EB did
not show up for Court. Howe responded, “They wouldn’t have a case.” Lysengen
said, “if she shouldn’t show up, then she won’t show up.”
Two days later, Anderson wore a body transmitter to another meeting with
Lysengen and Howe. Howe explained that EB’s presence is necessary for the State
to proceed with the prosecution. If she’s not around, he said, it is like a “house of
cards” that falls down. Howe said that EB “being gone” needs to happen more than
five days before trial or it looks suspicious. Howe said the Government won’t have
EB come to the preliminary hearing; if she did come, Howe would probably cancel
the hearing so that prosecutors could not use her preliminary hearing testimony if she
was not present at trial. Anderson reported that, as the plan developed over the
weekend of January 24-26, Anderson was to call EB at a number Smith and Lysengen
provided, arrange to meet EB at a storage unit in Grand Forks, drug EB, and place her
in her car to look like asphyxiation. GFNTF asked EB to leave the area for her safety.
The affidavit was corroborated by Anderson’s wire-recorded conversations and
by Lysengen’s prior communications with Haase. In addition, GFNTF verified that
Smith, Lysengen, and Avron knew each other; Lysengen was living at Anderson’s
house; EB collected antiques; and Smith had visited EB’s home. Anderson knew
EB’s first name and provided a copy of the map and photo Smith produced.
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After GFNTF enlisted Anderson as a confidential informant, he filled out a
personal history report revealing convictions for aggravated forgery, bigamy, check
forgery, theft by false representation, and theft by swindle. GFNTF likely ran a North
Dakota criminal records, but there is no evidence of a more thorough national
criminal records check known as a “Triple I” report. Anderson had felony charges
pending in Grand Forks and Cass Counties. Glaze was aware of the pending Grand
Forks charges. Her affidavit did not disclose this criminal history.
With the criminal charge pending, Howe’s attorney hired an investigator to
conduct a background investigation of Anderson. In March 2014, in response to
Howe’s discovery requests, Whelan obtained a Triple I report on Anderson, which
revealed numerous additional charges for forgery, theft by deception, false promises,
and false representation. In late March, Whelan received documents disclosing that
Anderson made false allegations of “murder for hire” plots in Minnesota in 2003 and
in Nebraska in 2004. Neither incident resulted in criminal charges so they were not
in the Triple I report. On April 24, Whelan moved to amend the charge against Howe
to criminal conspiracy to tamper with a witness. On May 8, the day before the
preliminary hearing, Whelan moved to dismiss the amended charge against Howe.
In an email to Howe’s attorneys, Whelan explained that, in light of the information
made available about Anderson, “Although I remain confident that there is probable
cause that Mr. Howe was involved, I see no need to go through tomorrow’s
preliminary hearing [because] I do not believe there is proof beyond a reasonable
doubt, and therefore I could not, in good conscience, proceed to trial.” The Walsh
County District Court dismissed the criminal case that day. This lawsuit followed.
II. Discussion
“A warrant based upon an affidavit containing ‘deliberate falsehood’ or
‘reckless disregard for the truth’ violates the Fourth Amendment. An official who
causes such a deprivation is subject to § 1983 liability.” Bagby v. Brondhaver, 98
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F.3d 1096, 1098 (8th Cir. 1996), quoting Franks v. Delaware, 438 U.S. 154, 171
(1978); see Burk v. Beene, 948 F.2d 489, 494 (8th Cir. 1991). In rejecting Howe’s
Fourth Amendment claims, the district court concluded that “Howe has alleged no
facts, nor does the record support any facts, that amount to a deliberate falsehood by
Glaze being the basis for the warrant affidavit.” Howe v. Gilpin, 2022 WL 1295832
at *4. We agree.
On appeal, Howe argues, as he did to the district court, that defendants,
working together as investigators, acted with reckless disregard of the truth by
declining to inform the judicial officer who issued the arrest warrant “of highly
material information concerning the credibility and criminal history of sole witness”
Anderson. This deliberate falsehood issue turns on the mental state of the affiant,
Glaze, not the informant, Anderson. See Franks, 438 U.S. 154 at 171. Howe argues
Glaze failed to disclose that Anderson has a criminal history establishing that he is
a chronic liar, which raises a genuine issue of fact regarding Glaze’s reckless
disregard for the truth. Reckless disregard may be inferred from the omission of
information. However, the party attacking a warrant affidavit “must show that the
omitted material would be clearly critical to the finding of probable cause.” United
States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993) (quotation omitted). “In a
warrant affidavit, the government need only show facts sufficient to support a finding
of probable cause.” United States v. Ozar, 50 F.3d 1440, 1445 (8th Cir. 1995)
(quotation omitted); see United States v. Knutson, 967 F.3d 754, 760 (8th Cir. 2020);
Murray v. Lene, 595 F.3d 868, 872 (8th Cir. 2010).
“Probable cause exists if the totality of facts based on reasonably trustworthy
information would justify a prudent person in believing the individual arrested had
committed an offense.” Williams v. City of Alexander, 772 F.3d 1307, 1310 (8th Cir.
2014) (cleaned up). “The core question in assessing probable cause based upon
information supplied by an informant is whether the information is reliable.” United
States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993). In a § 1983 case, the issues are
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whether “the warrant application is so lacking in indicia of probable cause as to
render official belief in its existence unreasonable,” and, if deliberate falsehood is
alleged, whether the affidavit is truthful, which “means that the information put forth
is believed or appropriately accepted by the affiant as true.” Morris v. Lanpher, 563
F.3d 399, 402 (8th Cir. 2009) (cleaned up). Omissions and falsehoods that are
immaterial or not supported by the record do not suffice. Id. at 403.
Glaze’s affidavit contained powerful indicia of probable cause. Most important
was the detailed recitation of statements made by Howe, Lysengen, and Anderson at
the recorded January 24, 2014 meeting. Standing alone, this objective evidence
provided probable cause to believe a conspiracy to murder EB existed. It was
supported by numerous other recitals in the affidavit: Lysengen’s pending
prosecutions arising from EB’s controlled buy, giving him a motive to eliminate a
government witness Howe said was essential; GFNTF investigators learning of
Lysengen’s contacts with his incarcerated step-son evidencing their desire to “set up”
EB; and GFNTF surveillance activities confirming numerous details of the plot
Anderson reported in face-to-face meetings with officers. Opportunities to assess
Anderson’s credibility first-hand gave greater weight to the informant’s information.
See United States v. Robertson, 39 F.3d 891, 893-94 (8th Cir. 1994).
Howe argues that Anderson’s known fraud-related criminal convictions were
relevant information because they cast doubt on his credibility. Cf. Fed. R. Evid.
609(a)(2). “Many informants have prior convictions.” United States v. Leppert, 408
F.3d 1039, 1042 (8th Cir. 2005). The question is not whether the omitted information
might be of interest to the issuing magistrate. Omitted information must be “clearly
critical” to the finding of probable cause. Here, a corrected affidavit disclosing
Anderson’s prior fraud-related crimes of which Glaze was aware still would have
provided the issuing judicial officer probable cause to issue the arrest warrant. That
Anderson was being prosecuted for theft in Grand Forks County was not plainly
exculpatory evidence. If anything, it was consistent with an inference that Lysengen
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and Howe had involved Anderson in a criminal conspiracy. Thus, there was no
Fourth Amendment violation. See Bagby, 98 F.3d at 1099.
Howe argues Defendants knew Anderson had serious credibility issues.
Therefore, they had a duty to further investigate Anderson’s criminal history and to
disclose his prior false “murder-for-hire” plots in two other States. We disagree.
Once GFNTF agents established probable cause to arrest Howe, as recited in the
Glaze affidavit, they had no constitutional duty to further investigate Anderson’s
credibility. “[O]fficers are not required to conduct a mini-trial before arrest.” Fisher
v. Wal-Mart Stores, Inc., 619 F.3d 811, 817 (8th Cir. 2010) (quotation omitted). As
in Gibson v. Cook, the agents did not “disregard[] plainly exculpatory evidence.” 764
F.3d 810, 814 (8th Cir. 2014) (quotations omitted).
There is no evidence Whelan or any GFNTF investigator knew about the false
“murder-for-hire” allegations when Glaze submitted the warrant affidavit. An agent
does not “violate a clearly established constitutional right by omitting information
from a warrant application that he does not actually know, even if the reason is his
own reckless investigation.” Hartman v. Bowles, 39 F.4th 544, 545 (8th Cir. 2022).
As Howe’s subsequent, lengthy investigation of Anderson makes clear, minimal
further investigation into Anderson’s criminal history would not have exonerated
Howe. See Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999). And given the
imminent threat to EB’s safety, time was of the essence.
The judgment of the district court is affirmed.
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