Federal Circuits, 7th Cir. (November 02, 1990)
Docket number: 89-3472
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U.S. Supreme Court - Malley v. Briggs, 475 U.S. 335 (1986)
U.S. Supreme Court - Franks v. Delaware, 438 U.S. 154 (1978)
Before BAUER, Chief Judge, and WOOD, JR. and FLAUM, Circuit Judges.
ORDERJhonathon D. White brought this action under 42 U.S.C. Sec . 1983 against the defendant, police officer Stewart Smith, alleging that his constitutional rights were violated when he was arrested without probable cause for obscene performance pursuant to sections 35-49-3-2 and 35-49-2-1 of the Indiana Code. The district court granted Smith's motion for summary judgment on the ground that he was immune from damages under Malley v. Briggs, 475 U.S. 335 (1986).1 White appeals, and we affirm.According to the Supreme Court, the standard for immunity in a case like this is "whether a reasonably well-trained officer in petitioner's position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant." 475 U.S. at 345. Using this standard here, we agree with the district court that Smith acted in an objectively reasonable manner in applying for the warrant to arrest White. Smith had information that White took nude pictures of his daughter, Desteny, and told her to act like she was in a nude magazine; that Desteny had an unusual knowledge of oral sex for a seven year old child; that White taught Desteny about sex and showed her movies of naked men and women when her mother was not home; and that White touched Desteny in the wrong places. Based on this information, we find that the district court's conclusion of qualified immunity was not clearly erroneous, see Hughes v. Meyer, 880 F.2d 967, 969 (7th Cir.1989), cert. denied, 110 S.Ct. 2172 (1990), and therefore affirm its judgment.2White contends that Smith acted unreasonably because he failed to interview the White family or locate any nude photographs. This contention lacks merit. We have stated previously that "[t]here is no constitutional or statutory requirement that before an arrest can be made the police must conduct a trial." Gramenos v. Jewel Cos., 797 F.2d 432, 439 (7th Cir.1986) (quoting Morrison v. United States, 491 F.2d 344, 346 (8th Cir.1974) (probable cause found despite police officer's failure to question witnesses who saw defendant or to inspect counterfeit bill)), cert. denied,