Bowling v. Rector

FILED
United States Court of Appeals
Tenth Circuit

October 26, 2009
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DANNY J. BOWLING,

Plaintiff - Appellee,

v.
No. 07-6284
JOE RECTOR, individually, and as
Commissioned Agent of the Oklahoma
State Bureau of Investigation,

Defendant - Appellant.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 06-cv-859)

Charles A. Brandt and Robert S. Lafferrandre, Pierce, Couch Hendrickson,
Baysinger & Green, L.L.P., Oklahoma City, OK, for Defendant-Appellant Joe
Rector.

April M. Davis (Stephen Jones with her on the briefs), Jones, Otjen & Davis,
Enid, OK, for Plaintiff-Appellee Danny J. Bowling.

Before LUCERO, EBEL, and HARTZ,

EBEL, Circuit Judge.
 In this interlocutory appeal, Joe Rector challenges the district court’s denial

of his motion for summary judgment based on qualified immunity. Danny

Bowling sued Rector and eight other defendants under 42 U.S.C. § 1983, alleging

that they violated his constitutional right to be free from unreasonable search and

seizure when Rector applied for and received a warrant to search Bowling’s house

and then executed that warrant. 1 Because we conclude that Rector was entitled to

qualified immunity from liability for one of Bowling’s claims under § 1983, we

AFFIRM IN PART, REVERSE IN PART, and REMAND for further proceedings

consistent with this opinion.

I. BACKGROUND

Bowling is an Oklahoma farmer and rancher who is in the business of

raising and selling cattle. For more than a decade, Bowling has been financing

his cattle operations by borrowing money from Farmers Exchange Bank (“FEB”)

(id.) and giving FEB a security interest in his cattle.

In January of 2006, FEB discovered that 800-850 head of Bowling’s cattle

in which it held a security interest were missing from the pastures where FEB had

inspected them the previous September. The next month, invoking a provision in

Bowling’s promissory note and security agreement to the effect that “default

1
Bowling’s complaint also asserted causes of action for violation of his
right to due process, conspiracy to violate his civil rights, invasion of privacy,
trespass, conversion, intentional infliction of emotional distress, and destruction
of property. Those causes of action are not at issue in this appeal.

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occurs if [Bowling] fails to do something which causes [FEB] to believe that it

will have difficulty collecting the amount owed to it,” FEB initiated a foreclosure

lawsuit against Bowling in Kay County, Oklahoma, district court. (App. at 40-

41.) FEB’s complaint alleged that the bank had “requested to be allowed to

inspect cattle that comprise collateral for its loans,” but that Bowling had not

allowed such an inspection. (Id.)

When Bowling was deposed in July of 2006 pursuant to the foreclosure

litigation, he testified that he believed FEB had been “running around taking [his]

cattle.” (Id. at 295.) Bowling explained, “I have lost some cattle, yes. . . . I

would assume the bank has taken it, what I have missing.” (Id. at 296.) His

losses of cattle, he said, had occurred in the prior “[s]ix or eight months.” (Id. at

298.) When pressed as to the locations from which the missing cattle had

disappeared, Bowling responded, “I can’t remember exact. I know I had some in

Noble County stolen. I had some from my pens. I don’t know if they are stolen,

if the bank has taken them or what because I have no correspondence.” (Id. at

296.) He went on to testify that he was “not saying [the cattle] were stolen,” but

rather was “saying the bank probably got them.” (Id. at 297.) He testified further

that he had filed sheriff’s reports in both Noble County and Kay County when his

cattle disappeared.

The week after Bowling’s deposition in the foreclosure litigation, FEB’s

president, Dennis Buss, telephoned Rector. Buss had seen Rector, a “Special

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Ranger” with the Oklahoma State Bureau of Investigations (“OSBI”) and field

inspector with the Texas and Southwestern Cattle Raisers Association

(“TSCRA”), featured in a television news segment about investigations of cattle

theft in Oklahoma City. During their initial conversation, Buss told Rector that

the bank had “taken a deposition of a customer the previous week and that there

were cattle stolen and missing.” (Id. at 133.) Buss also told Rector that the bank

had a security interest in the missing cattle. Buss asked Rector to meet with him

and FEB’s attorney and officers to discuss the situation, and Rector agreed.

At the July 14, 2006, meeting, Buss told Rector that Bowling had been

selling cattle in the names of his mother and son, and that FEB had not received

proceeds from any of these sales. Buss also provided Rector with a number of

documents related to Bowling’s loans and security agreements with FEB, as well

as documents relating to certain livestock sales. Based on this information,

Rector made an initial determination that “it was pretty obvious a crime had been

committed” when Bowling “didn’t sell the cattle in his name so that the bank

could receive the proceeds” based on its security interest. (Id. at 117.) Rector

advised Buss and the FEB officers that he would “conduct a criminal

investigation” into the matter, “with the understanding that charges would be filed

if [he] could make a case.” (Id. at 118.)

Three days after meeting with the FEB personnel, Rector prepared an

affidavit for a warrant to search Bowling’s home. The affidavit identified Rector

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as a “Special Ranger . . . employed by Texas and Southwestern Cattle Raisers

Association” and averred that Rector had “over fifteen years of law enforcement

experience” and was “responsible for conducting investigations into criminal

activity throughout the state of Oklahoma.” (Id. at 149.) It further averred that

Rector was commissioned by the OSBI, had statewide jurisdiction pursuant to that

commission, and had “solved hundreds [of] crimes committed in the state of

Oklahoma.” (Id.) Having specified that items to be named in the warrant were

“subject to seizure for the following reasons: Bank Fraud-Sale of Mortgaged

Property,” the affidavit concluded with a list of “facts tending to establish . . .

grounds for issuance of the Search Warrant.” 2 (Id. at 148, 149-50.)

After preparing the affidavit for search warrant, Rector contacted OSBI

Special Agent John Laughy, who agreed to meet Rector the next morning to bring

the application and affidavit for search warrant to the Kay County Courthouse.

Laughy called the courthouse to ensure that Judge D.W. Boyd would be available

the next morning to receive the application and affidavit. After meeting with

Laughy and Rector on July 18, 2006, Judge Boyd signed the warrant, which was

directed to “Any Sheriff, Police Officer, or Law Enforcement Officer in the

County of Kay.” (Id. at 157.) Based on “[p]robable cause having been shown . . .

by the affidavit of Special Ranger Joe Rector,” the warrant authorized a search of

Bowling’s residence for

2
Rector’s list of facts is summarized in section II.C.1.b.iii, infra.

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 [b]ank statements, bank records, drive in tickets 3 and other
documents related to the sale of cattle and cattle purchase/sale
transactions, ledgers, and other records dealing with the
purchase/sale of cattle. Computers, computer disks, computer hard
drives and other related information storage devices. Receipts for
the sale of cattle. Any papers, receipts, or other documents dealing
with cattle. Large uncashed checks or large amounts of cash which
could represent the proceeds from the sale of cattle Farmers
Exchange Bank of Tonkawa had a lien on.

(Id. at 157 (footnote added).) The warrant further authorized a search for

“articles of personal property tending to establish the identity of the person or

persons in control or possession of the place or vehicle” at Bowling’s address.

(Id.)

Having secured the warrant, Rector and Laughy went to the Kay County

sheriff’s office, where they met with the undersheriff. Rector and Laughy asked

if someone from the sheriff’s office could accompany them as they executed the

warrant. When the undersheriff told them that the office was shorthanded,

Laughy called the Tonkawa, Oklahoma, police chief to ask that several of his

officers attend the search. Rector and Laughy met the Tonkawa police chief and

his officers in Tonkawa, where they drove to Bowling’s house and executed the

warrant. Rector, who was “in charge,” performed the search with Laughy’s

assistance; the Tonkawa officers “just stood around.” (Id. at 122.)

3
A drive-in ticket is “a document that’s filled out when the individual
[selling cattle] pulls up to the pens to unload the cattle.” (App. at 119.)

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 Rector testified at his deposition that “[a]t some point” when he “wasn’t in

the room,” Laughy “moved a couch and they found some marijuana” underneath.

(Id. at 122.) Rector informed the Tonkawa officers that he does not “get involved

in that kind of stuff,” and that “[i]f they wanted to do something to make a case,

then they could handle that part of it.” (Id.) Rector did not examine the

marijuana, but “[s]omebody borrowed [his] camera and they took some

photographs of the contraband.” (Id.)

Three days after executing the warrant, on July 21, 2006, Rector submitted

to Judge Boyd the Return and Inventory from the search. Rector averred that the

items seized from Bowling’s residence were as follows:

1. DTN computer S/N FF01148B
2. EMACHINES CPU S/N CK85BD0005130
3. Dell Laptop Inspir[on] 5150 S/N CNOW940-1261-485-2680
4. Bag of frozen mushrooms (CDS)
5. Plastic bag containing 3 bags of Marijuana
6. 2 Marijuana pipes with residue in them
7. Plastic bag with syringes in it
8. Box with several bottles of steroids and syringes in it
9. $4400.00 in cash all in 100.00 bills
10. 103 statements from R.J. O’Brien
11. 1 used check pad from Farmers Exchange Bank with Danny
Bowling’s name on it.
12. 3 bank statements from First National Bank of Oklahoma
13. 1 bank statement from First State Bank of Fairfax
14. 2 bank statements from Superior Federal Bank
15. 1 bank statement from Farmers Exchange Bank
16. 1 bank statement from BancFirst
17. 1 letter from the US Department of Agriculture addressed to Danny Bowling
18. 1 statement from Cable One addressed to Danny Bowling

(Id. at 159.)

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 Bowling filed suit in federal court less than a month later, asserting a

number of state-law claims as well as a claim under § 1983 for violation of his

Fourth Amendment right to be free from unreasonable search and seizure. In

relevant part, Bowling’s complaint alleged that Rector had exceeded his limited

statutory authority as an OSBI Special Ranger when he applied for a warrant to

investigate bank fraud and sale of mortgaged property, when Oklahoma law

dictates that Special Rangers may only enforce laws pertaining to the larceny of

livestock. The complaint further alleged that Rector had impermissibly

“interfere[d] in a civil lawsuit”–FEB’s foreclosure litigation against Bowling–“by

searching [Bowling’s] home for items related to the civil lawsuit.” (Id. at 29.)

While Bowling had not yet received a copy of the Return and Inventory when he

filed his complaint, he alleged, as part of a claim that the search warrant was

unconstitutionally overbroad, that the officers who executed the warrant “took

items that were completely unrelated to [his] dispute with FEB” over the missing

cattle. (Id. at 32-33.)

Rector moved for summary judgment, raising the defense of qualified

immunity on Bowling’s § 1983 claims. In response, Bowling argued that Rector’s

conduct violated Bowling’s Fourth Amendment right to be free from unreasonable

search and seizure because (1) by requesting and executing a search warrant for

the investigation of bank fraud, Rector acted outside the scope of his limited

statutory authority to investigate the larceny of livestock; (2) the search warrant

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was unconstitutionally overbroad; (3) Rector impermissibly used a criminal

search warrant in a civil proceeding; and (4) Rector lacked probable cause to

believe a crime had been committed that he was authorized to investigate.

The district court denied Rector’s motion for summary judgment as to all

but one of Bowling’s claims and concluded that Rector was not entitled to

qualified immunity from liability under § 1983. The court first found that there

was “a genuine dispute” of material fact as to whether Rector “was acting within

the scope of [his] authority” in applying for and executing the warrant. (Dist. ct.

order at 4.) It likewise found a “genuine dispute with regard to the

reasonableness of the manner in which the warrant . . . was executed,” explaining

that “[q]uestions exist not only regarding whether the number of items seized was

excessive, but also regarding whether the seized items were fairly encompassed in

the description of the items to be seized.” (Id. at 6.) The district court then

concluded that Rector was not entitled to qualified immunity because Bowling’s

allegations established “that Rector violated Bowling’s constitutional rights in

[both] obtaining and executing the search warrant,” and “a reasonable law

enforcement officer, statutorily charged with limited authority, could not have

believed that his investigation fell within that authority or that his execution of an

invalid warrant or his improper execution of a valid warrant was lawful.” (Id. at

7.)

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 Rector timely appealed the denial of his motion for summary judgment

based on qualified immunity.

II. DISCUSSION

A. Jurisdiction

Because this is an interlocutory appeal from a denial of summary judgment,

our jurisdiction under 28 U.S.C. § 1291 is limited. In general, the denial of a

summary judgment motion is not an appealable final order under § 1291. McFall

v. Bednar, 407 F.3d 1081, 1086 (10th Cir. 2005). Such a denial “is subject to

appeal, however, when the defendants are public officials asserting a qualified

immunity defense and the appealed issue is whether a given set of facts

establishes that defendants violated clearly established law.” Bass v. Richards,

308 F.3d 1081, 1086 (10th Cir. 2002); see Johnson v. Jones, 515 U.S. 304, 311

(1995) (citing Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)).

This limitation means that we may consider Rector’s appeal only insofar as

it presents “neat abstract issues of law”; Rector “may not appeal [the] district

court’s summary judgment order insofar as that order determines whether or not

the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Johnson, 515 U.S.

at 317, 319-20 (quotation omitted). Thus, it is not our province “to determine

whether the record supports the district court’s factual assumptions”; instead, we

“‘simply take, as given, the facts that the district court assumed when it denied

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summary judgment for [a] (purely legal) reason.’” Dixon v. Kirkpatrick, 553 F.3d

1294, 1301 (10th Cir. 2009) (quoting Johnson, 515 U.S. at 319).

B. Standard of review

We review de novo the district court’s denial of a summary judgment

motion asserting qualified immunity, and we apply the same legal standard that

the district court applied. Poolaw v. Marcantel, 565 F.3d 721, 728 (10th Cir.

2009). “Summary judgment should be granted ‘if the pleadings, the discovery

and disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a

matter of law.’” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009)

(quoting Fed. R. Civ. P. 56(c)). We consider the evidence in the light most

favorable to the non-moving party, Cortez v. McCauley, 478 F.3d 1108, 1115

(10th Cir. 2007) (en banc); here, that party is Bowling.

“Because of the underlying purposes of qualified immunity, we review

summary judgment orders deciding qualified immunity questions differently from

other summary judgment decisions.” Id. at 1114 (quotation omitted). Upon the

defendant’s assertion of the qualified immunity defense, the burden shifts to the

plaintiff, who must “meet a strict two-part test” by showing “(1) that the

defendant violated a constitutional or statutory right, and (2) that this right was

clearly established at the time of the defendant’s conduct.” Cassady v. Goering,

567 F.3d 628, 634 (10th Cir. 2009) (quotation omitted). We may, at our

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discretion, consider the two parts of this test in the sequence we deem best “in

light of the circumstances in the particular case at hand.” Pearson v. Callahan, —

U.S. —, 129 S. Ct. 808, 818 (2009).

Our inquiry into whether a constitutional right was clearly established

“‘must be undertaken in light of the specific context of the case, not as a broad

general proposition.’” Cortez, 478 F.3d at 1114 (quoting Saucier v. Katz, 533

U.S. 194, 201 (2001)). This case-specific inquiry asks “whether it would be clear

to a reasonable officer that his conduct was unlawful in the situation.” Id.

(quotation omitted). “Summary judgment based on qualified immunity is

appropriate if the law did not put the officer on notice that his conduct would be

clearly unlawful.” Id. Furthermore, a right is clearly established only if there is

“‘a Supreme Court or Tenth Circuit decision on point, or the clearly established

weight of authority from other courts [has] found the law to be as the plaintiff

maintains.’” Id. at 1114-15 (quoting Medina v. City of Denver, 960 F.2d 1493,

1498 (10th Cir. 1992)). This prior caselaw need not address a situation factually

identical to that of a defendant officer, but it must “provide fair warning that [the]

officer’s conduct would violate constitutional rights.” Marshall v. Columbia Lea

Reg’l Hosp., 474 F.3d 733, 740 (10th Cir. 2007) (quotations omitted).

C. Bowling’s Fourth Amendment claims under § 1983

In their briefs and at oral argument, both Bowling and Rector focused

almost exclusively on the claim that Rector violated Bowling’s right to be free

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from unreasonable search and seizure when Rector applied for and executed the

warrant in excess of his statutory jurisdiction as an OSBI Special Ranger. Indeed,

in oral argument, we asked the parties for supplemental briefing on the single

issue of the constitutional validity of a search warrant obtained outside of an

affiant’s scope of authority.

However, the district court clearly interpreted Bowling’s complaint as

alleging, under § 1983, two separate Fourth Amendment violations: one violation

for Rector’s obtaining a warrant that was invalid because its subject matter lay

outside the scope of his lawful authority, and a second violation for the manner in

which he executed that warrant, even if it were valid. In its order on Rector’s

motion for summary judgment, the court thus explained that “Bowling has

contended that because Rector did not have reasonable grounds to believe that he

could investigate . . . , no valid warrant was issued or executed,” and that

“Bowling has further contended that because Rector’s seizure of certain property

exceeded the terms of the search warrant, . . . Rector’s execution of the warrant

was unreasonable.” (Dist. ct. order at 5.)

Accordingly, the court ruled separately that “there is a genuine dispute in

this case with regard to the reasonableness of Rector’s actions in conducting the

investigation in light of his limited authority and in seeking a search warrant,”

and that “there is a genuine dispute with regard to the reasonableness of the

manner in which the warrant, even if valid, was executed.” (Dist. ct. order at 5,

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6.) In its qualified immunity analysis, the court concluded “that Rector violated

Bowling’s constitutional rights in obtaining and executing the search warrant,”

and “that a reasonable law enforcement officer, statutorily charged with limited

authority, could not have believed that his investigation fell within that authority

or that his execution of an invalid warrant or his improper execution of a valid

warrant was lawful.” (Id. at 7 (emphasis added).) 4

In conformity with the district court’s interpretation of the complaint and

its ruling on the motion for summary judgment, we address, in turn, (1) whether

Rector is entitled to qualified immunity from Bowling’s § 1983 claim that Rector

applied for and executed an invalid warrant when he acted outside his statutory

jurisdiction; and (2) whether Rector is entitled to qualified immunity from

Bowling’s § 1983 claim that even if the warrant were valid, Rector exceeded the

scope of the warrant when he executed it.

1. Invalidity of warrant due to Rector’s acting outside his
statutory jurisdiction

a. Rector’s authority as a Special Ranger under Oklahoma
law

4
Rector twice noted in his opening brief that the district court “questioned
the reasonableness of [his] method of execution of the warrant” (Aplt. br. at 23).
However, aside from Rector’s fleeting comments that the district court did not
provide “specific analysis” of the execution issue and that Bowling did not put on
“specific evidence” as to the method of execution, neither Rector nor Bowling
made any argument to this court as to why the district court’s conclusion of law
as to the execution claim–i.e., that Bowling had met his burden of demonstrating
that Rector’s conduct violated his clearly established constitutional rights–was
either correct or in error.

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 At all times relevant to Bowling’s claims against him, Rector was

commissioned by the OSBI as a “Special Officer known as a Ranger.” (App. at

468, 469-71.) Pursuant to Okla. Stat. Ann. tit. 74, § 150.13, this commission

authorized Rector to “enforce[] . . . the provisions of the Oklahoma Statutes

relating to larceny of domestic animals, livestock or farm and ranch equipment or

supplies.” (Id. at 468.) Oklahoma law provides that “with respect to”

enforcement of those provisions of the Oklahoma Statutes, Special Rangers “shall

have the same authority as any other peace officer.” Okla. Stat. Ann. tit. 74,

§ 150.13(A).

In denying Rector’s motion for qualified immunity on this claim, the

district court assumed that Bowling’s version of events was correct. Mindful that

“[i]t is not [our] job . . . to determine whether the record supports the district

court’s factual assumptions,” Dixon, 553 F.3d at 1301, we ask, in our de novo

review, simply whether Rector’s alleged conduct in excess of his statutory

authority violated Bowling’s clearly established rights under the Fourth and

Fourteenth Amendments.

b. Whether Rector’s conduct violated Bowling’s rights
under the Fourth and Fourteenth Amendments

i. State-law violations and the Fourth Amendment

We have made clear that “[a] state-law violation does not . . . necessarily

rise to the level of a federal constitutional violation” under the Fourth

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Amendment. United States v. Gonzales, 535 F.3d 1174, 1182 (10th Cir. 2008).

Indeed, in our analysis of the constitutionality of Rector’s alleged conduct, “the

question . . . is not whether the search was authorized by state law. The question

is rather whether the search was reasonable under the Fourth Amendment.”

Cooper v. California, 386 U.S. 58, 61 (1967). “Just as a search authorized by

state law may be an unreasonable one under that amendment, so may a search not

expressly authorized by state law be justified as a constitutionally reasonable

one.” Id. In short, while states may “choose[] to protect individual privacy and

dignity more than the Fourth Amendment requires,” a state’s restrictions on

search and seizure “do not alter the Fourth Amendment’s protections.” Virginia

v. Moore, — U.S. —, 128 S. Ct. 1598, 1606, 1607 (2008); see also United States

v. Sawyer, 441 F.3d 890, 899 (10th Cir. 2006) (explaining that in the context of

claims that violations of state law constitute violations of the Fourth Amendment,

“[t]he touchstone of our jurisprudence remains whether the conduct in question

contravenes the federal constitution”); United States v. Green, 178 F.3d 1099,

1105 (10th Cir. 1999) (“It is . . . well established in this circuit that . . . the test of

reasonableness in relation to the Fourth Amendment . . . must be determined by

Federal law even though the police actions are those of state police officers.”

(quotations omitted)).

While state law thus “is not determinative of the federal question” of a

Fourth Amendment violation, state law “may or may not be relevant to the

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determination of the federal question.” Sawyer, 441 F.3d at 899; see also United

States v. Mikulski, 317 F.3d 1228, 1232 (10th Cir. 2003) (“‘A police violation of

state law does not establish a Fourth Amendment violation. However, the

question of compliance with state law may well be relevant in determining

whether police conduct was reasonable for Fourth Amendment purposes.’”

(quoting United States v. Baker, 16 F.3d 854, 856 n.1 (8th Cir. 1994) (in

parenthetical)). We have explained that state law is most relevant–and that it

becomes “highly determinative” of Fourth Amendment questions–“only when the

constitutional test [at issue] requires an examination of the [pertinent] state law or

interests.” Gonzales, 535 F.3d at 1182 (quotation omitted). Such constitutional

tests include those for “exigent circumstances justify[ing] a warrantless search”

and those for inventory searches, both of which “involve a special incorporation

of state law into Fourth Amendment jurisprudence.” Id. at 1182-83 (quotation

omitted).

In this case, the federal test at issue–that for search and seizure pursuant to

a warrant–involves no such “special incorporation of state law,” id. at 1183, into

the Fourth Amendment analysis. “The Fourth Amendment requires that search

warrants be issued only ‘upon probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched, and the persons or things to

be seized.’” Dalia v. United States, 441 U.S. 238, 255 (1979) (quoting U.S. Const.

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amend. IV). “Finding these words to be precise and clear,” the Supreme Court

“has interpreted them to require only three things”:

First, warrants must be issued by neutral, disinterested magistrates.
Second, those seeking the warrant must demonstrate to the magistrate
their probable cause to believe that the evidence sought will aid in a
particular apprehension or conviction for a particular offense.
Finally, warrants must particularly describe the things to be seized,
as well as the place to be searched.

Id. (citations, quotations omitted). We have explained that these requirements

serve “at least two distinct purposes”: ensuring that no “‘intrusion in the way of

search or seizure’” occurs “‘without a careful prior determination of necessity,’”

and preventing the “‘specific evil [of] the “general warrant” abhorred by the

colonists.’” Cassady, 567 F.3d at 634-35 (10th Cir. 2009) (quoting Coolidge v.

New Hampshire, 403 U.S. 443, 467 (1971)).

Because this constitutional test does not “require[] an examination of . . .

state law or interests,” Gonzales, 535 F.3d at 1182, Rector’s alleged violation of

Oklahoma law is not, without more, significantly relevant to our Fourth

Amendment analysis.

ii. Officer jurisdiction and the Fourth Amendment

Bowling alleges that Rector exceeded his statutory authority–and thus acted

outside his jurisdiction–in seeking and executing the search warrant. We have not

decided a Fourth Amendment case in which a limited-authority officer such as

Rector acted outside his jurisdiction over particular subject matters under state

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law. However, we have held that a search conducted pursuant to a warrant

obtained outside the requesting and executing officer’s territorial jurisdiction does

not constitute a per se violation of the Fourth Amendment. Green, 178 F.3d at

1106. Instead, we evaluate such a search by the well-established “federal

constitutional standards for evaluating the validity of search warrants.” Id. We

will conclude that Fourth Amendment requirements are “satisfied where . . .

officers obtain a warrant, grounded in probable cause and phrased with sufficient

particularity, from a magistrate of the relevant jurisdiction authorizing them to

search a particular location, even if those officers are acting outside their

jurisdiction as defined by state law.” Id. (emphasis added, footnote omitted); see

also Sawyer, 441 F.3d at 895 (applying federal test for determining validity of

consent to search where Kansas police officers acted outside of their statutory

jurisdiction and in violation of Oklahoma law in obtaining defendant’s consent to

search his business premises, and concluding that this inquiry “[did] not require

an analysis of the legal parameters of the Kansas Officers’ jurisdictional authority

under state law”).

The Supreme Court’s recent decision in Virginia v. Moore reinforces this

principle. In Moore, several Portsmouth, Virginia, police officers stopped and

arrested David Lee Moore for the misdemeanor offense of driving with a

suspended license. 128 S. Ct. at 1601. Under Virginia law, the officers were not

authorized to arrest Moore for driving with a suspended license except under

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circumstances that did not apply in his case. Id. at 1602. State law dictated that

the officers should have issued Moore a summons rather than arresting him. Id.

When they searched Moore incident to this arrest made in excess of their statutory

jurisdiction, the officers discovered crack cocaine and cash on his person, and he

subsequently was charged with possessing cocaine with intent to distribute. Id.

Reversing the Virginia Supreme Court, the Court held that regardless of the

legality of the officers’ conduct under state law, that conduct must be evaluated

by Fourth Amendment standards for warrantless arrests and searches pursuant to

such arrest. Id. at 1607-08. Because those standards dictate that “warrantless

arrests for crimes committed in the presence of an arresting officer are reasonable

under the Constitution,” and that “officers may perform searches incident to

constitutionally permissible arrests in order to ensure their safety and safeguard

evidence,” Moore’s arrest in excess of the officers’ statutory authority

nonetheless passed Fourth Amendment muster. Id. at 1607. “[T]he arrest rules

that the officers violated were those of state law alone, and . . . it is not the

province of the Fourth Amendment to enforce state law.” Id. at 1608.

While Green, Sawyer, and Moore are not precisely on point with the case

before us, we think the principle articulated by those cases–that for Fourth

Amendment purposes, the conduct of officers acting in excess of their statutory

authority must be tested by traditional Fourth Amendment standards–applies with

equal force here. We thus agree with the approach of the Eighth Circuit in United

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States v. Freeman, 897 F.2d 346 (8th Cir. 1990), a case with facts fairly similar to

those alleged by Bowling.

In Freeman, Thomas Ley, a special agent for the Missouri Department of

Revenue, was authorized to investigate possible violations of state law related to

automobile tampering, but was not statutorily designated a state “peace officer.”

Id. at 346-47. Under the Missouri statutes, only peace officers and prosecuting

attorneys may apply for search warrants. Id. at 347 n.2 (citing Mo. Rev. Stat. §

542.276.1). Despite his lack of statutory authority to do so, Ley applied for a

warrant to search certain premises, submitting a supporting affidavit establishing

probable cause for the search. Id. The affidavit identified Ley as a special agent

with the state Department of Revenue, but neither it nor the warrant application

form informed the judge reviewing the application that Ley was not a peace

officer empowered under state law to seek a search warrant. Id.

On the basis of Ley’s application and affidavit, the state judge issued a

warrant directed to “any peace officer in the state of Missouri.” Id. With the

assistance of a state police officer and a county deputy sheriff, Ley searched the

named premises and seized evidence that he later identified on the official return

and inventory he completed. Id. After a federal grand jury indicted Anthony

Freeman based on the evidence seized in this search, Freeman moved to suppress

on the ground that because Ley was not statutorily authorized to apply for or

execute a search warrant, the search was impermissible under the Fourth

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Amendment. Id. The Eighth Circuit held that “the record as a whole

demonstrates that no constitutional violation occurred [because] the affidavit

supporting the search warrant provided probable cause to search and the search

warrant described with particularity the place to be searched and the items to be

seized.” Id. at 350. The court characterized Ley’s conduct in excess of his

statutory jurisdiction as an example of “procedural violations which do not

implicate the constitutional values of probable cause or description with

particularity of the place to be searched and items to be seized.” Id. at 348. As

the Supreme Court did in Moore and we did in Green and Sawyer, the Eighth

Circuit thus tested by traditional Fourth Amendment standards the actions of an

officer acting in excess of his statutory authority.

Applying the reasoning of Moore, Green, Sawyer, and Freeman, we turn to

an evaluation of Rector’s conduct by well-established “federal constitutional

standards for evaluating the validity of search warrants,” Green, 178 F.3d at 1106.

iii. Validity of the warrant

To be valid under the Fourth Amendment, the warrant to search Bowling’s

residence must meet three requirements: (1) it must have been “issued by [a]

neutral, disinterested magistrate[]”; (2) “those seeking the warrant must [have]

demonstrate[d] to the magistrate their probable cause to believe that the evidence

sought [would] aid in a particular apprehension or conviction for a particular

offense”; and (3) the warrant must “particularly describe the things to be seized,

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as well as the place to be searched.” Dalia, 441 U.S. at 255 (citations, quotations

omitted).

As to the first requirement, the warrant was issued by Kay County,

Oklahoma, district court judge D.W. Boyd. Nothing in the record indicates that

Judge Boyd was other than a neutral and disinterested magistrate.

As to the second requirement, Bowling argues that the warrant was invalid

because Rector subjectively lacked “probable cause to believe a crime had been

committed that he could investigate.” (App. at 207; see Aple. Br. at 17-20.) Yet

the standard for probable cause is subjective only to the extent that “the facts and

circumstances within [the affiants’] knowledge and of which they had reasonably

trustworthy information [are] sufficient in themselves to warrant a man of

reasonable caution in the belief that an offense has been or is being committed.”

Brinegar v. United States, 338 U.S. 160, 175-76 (1949) (quotations omitted); see

also Brigham City, Utah v. Stuart, 547 U.S. 398, 404-05 (2006). “The substance

of all the definitions of probable cause is a reasonable ground for belief of guilt.”

Brinegar, 338 U.S. at 175 (quotation omitted). As specifically applied to

searches, “[p]robable cause exists when ‘there is a fair probability that contraband

or evidence of a crime will be found in a particular place.’” United States v.

Grubbs, 547 U.S. 90, 95 (2006) (quoting Illinois v. Gates, 462 U.S. 213, 238

(1983)).

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 Here, Rector’s affidavit included the following “grounds for issuance of the

Search Warrant”:

(1) His July 11, 2006, telephone call from Buss, in which Buss informed him
that FEB customer Bowling had “sold over 800 head of cattle that were
valued at $750,000.00,” and that the bank had a lien on those cattle but had
not received any proceeds from their sale;

(2) His review of FEB’s documentation of its UCC and EFS filings establishing
the bank’s security interest in the cattle;

(3) His conversation with Buss regarding FEB’s inspections and inventories of
Bowling’s cattle, with those inspections and inventories showing that
Bowling had owned 883 head of cattle in September of 2005 and that none
of those remained in the fields where they previously had been pastured;

(4) Buss’s statement that during Bowling’s deposition in the foreclosure
litigation, Bowling had testified that “he no longer had any of the cattle and
he didn’t have any of the proceeds from the sale of the cattle”; and

(5) Rector’s examination of evidence showing that Bowling had, in 2004 and
2005, sold cattle in the names of his mother and his son, without remitting
to FEB any of the proceeds from those sales.

(6) Rector’s experience in cattle theft cases leading him to believe that there
would be large numbers of documents, large amounts of cash (or bank
records showing large cash transactions), and computerized business
records at Bowling’s residence as a result of recent cattle sales.

(App. at 149.) This information was sufficient to “warrant a man of reasonable

caution in the belief” that a crime 5 had been committed, Brinegar, 337 U.S. at

175, and that there was a fair probability that evidence of that crime would be

found in Bowling’s residence, Grubbs, 547 U.S. at 95.

5
The warrant specified the crime at issue as “Bank Fraud–Sale of
Mortgaged Property.” (App. at 157.)

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 As to the third requirement, Bowling argues that the warrant was

impermissibly overbroad in its description of what could be seized at his

residence. We have held that the constitution compels the warrant’s description

of “‘the items to be seized with as much specificity as the government’s

knowledge and circumstances allow.’” Cassady, 567 F.3d at 635 (quoting United

States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988)). “[W]arrants are

conclusively invalidated by their substantial failure to specify as nearly as

possible the distinguishing characteristics of the goods to be seized.” Id.

(quotation omitted). Here, the warrant specified that the executing peace officers

had authority to seize

[b]ank statements, bank records, drive in tickets and other documents
related to the sale of cattle and cattle purchase/sale transactions,
ledgers, and other records dealing with the purchase/sale of cattle.
Computers, computer disks, computer hard drives and other related
information storage devices. Receipts for the sale of cattle. Any
papers, receipts, or other documents dealing with cattle. Large
uncashed checks or large amounts of cash which could represent the
proceeds from the sale of cattle Farmers Exchange Bank of Tonkawa
had a lien on.

(App. at 157.) The warrant further authorized a search for “articles of personal

property tending to establish the identity of the person or persons in control or

possession of the place or vehicle” at Bowling’s residence. (Id.) That description

satisfactorily identifies “the distinguishing characteristics of the goods to be

seized,” Cassady, 567 F.3d at 635 (quotation omitted).

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 c. Conclusion as to this issue

We conclude that the warrant was valid under the Fourth Amendment.

Whether or not Rector’s alleged conduct in seeking the warrant violated

Oklahoma law, it did not violate Bowling’s constitutional rights. Therefore,

Bowling failed to meet the first part of the “strict two-part test” to overcome an

assertion of qualified immunity, Cassady, 567 F.3d at 634, and Rector is entitled

to qualified immunity on this claim.

Consequently, as to Bowling’s § 1983 claim that Rector violated his

constitutional rights by obtaining a warrant outside the scope of Rector’s lawful

authority as a Special Ranger, we REVERSE the district court’s denial of

Rector’s summary judgment motion.

2. Constitutional violation in Rector’s execution of the warrant 6

a. Whether Rector’s conduct violated Bowling’s rights
under the Fourth and Fourteenth Amendments

The district court found that there was a genuine dispute of material fact as

to whether, in executing the warrant, Rector seized an excessive number of items

or items that were not “fairly encompassed in the description of items to be

seized.” (Dist. ct. order at 6.) We do not review that finding, but simply ask

6
Because Rector does not fairly present this issue in his briefs or argument
on appeal, we could alternatively decline to address this aspect of the district
court’s ruling. We address it on the merits only because of the several isolated
unargued references to this issue in Rector’s brief and because it is easy to affirm
the district court on this ruling.

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whether Rector violated Bowling’s Fourth Amendment rights by exceeding the

scope of the warrant when he executed the search. See Dixon, 553 F.3d at 1301.

The Fourth Amendment’s particularity requirement targets the

constitutional evil of “general exploratory rummaging in a person’s belongings”

pursuant to a warrant. United States v. Carey, 172 F.3d 1268, 1272 (10th Cir.

1999). Where, as here, a warrant clearly and precisely specifies items to be

seized, and the officers executing the warrant seize additional items, those

officers act unreasonably for Fourth Amendment purposes unless their conduct

may be justified under an exception to the warrant requirement, such as the plain-

view exception. See Horton v. California, 496 U.S. 128, 138-42 (1990); United

States v. Angelos, 433 F.3d 738, 744-47 (10th Cir. 2006); Carey, 172 F.3d at

1271-76..

Therefore, in allegedly exceeding the scope of the search warrant, Rector

violated Bowling’s rights under the Fourth and Fourteenth Amendments.

b. Whether the constitutional right was clearly established
at the time of Rector’s conduct

The search at issue took place on July 18, 2006. By 1927, the Supreme

Court had held that “[t]he requirement that warrants shall particularly describe the

things to be seized makes general searches under them impossible and prevents

the seizure of one thing under a warrant describing another.” Marron v. United

States, 275 U.S. 192, 196 (1927). And in 1990, the Court explained that “[i]f the

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scope of the search exceeds that permitted by the terms of a validly issued

warrant or the character of the relevant exception from the warrant requirement,

the subsequent seizure is unconstitutional without more.” Horton, 496 U.S. at

140.

As it would have been clear to a reasonable officer in July of 2006 that

exceeding the scope of a search warrant was unlawful, the constitutional right at

issue was clearly established at the time of Rector’s conduct. See Cortez, 478

F.3d at 1114.

c. Conclusion as to this issue

Because Rector’s alleged conduct in exceeding the scope of the search

warrant violated Bowling’s clearly established right under the Fourth

Amendment, the district court correctly concluded that Rector was not entitled to

qualified immunity on this claim. Thus, as to Bowling’s § 1983 claim that Rector

violated his constitutional rights by exceeding the scope of the search warrant, we

AFFIRM the district court’s denial of Rector’s summary judgment motion.

III. CONCLUSION

We REVERSE the district court’s denial of Rector’s summary judgment

motion on the claim that Rector violated Bowling’s constitutional rights by

obtaining a warrant outside the scope of Rector’s lawful authority as a Special

Ranger. We AFFIRM the district court’s denial of Rector’s summary judgment

motion on the claim that Rector violated Bowling’s constitutional rights by

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exceeding the scope of the warrant. The case is remanded for further proceedings

consistent with this opinion.

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