Perhaps even more notable than his brother's timely appearance at the scene of this shooting, John Mendenhall also arrived moments later, dressed in his police officer's uniform, apparently on his way home from work.⁽¹⁾ Upon consultation with Officer White, Mendenhall gave chase to Myles.

Considering the information gathered from the day's investigation,⁽²⁾ Deputy Cropper prepared a complaint-affidavit for the arrest of John Mendenhall on charges of second degree murder in violation of Louisiana law.⁽³⁾ Using this affidavit, and another prepared for the purpose of obtaining a search warrant, Cropper sought and obtained a warrant for the arrest of John Mendenhall, as well as a search warrant for his home. Upon issue, the arrest warrant was faxed to Mendenhall's place of employment, at which time he was stripped of his weapon and badge and placed into custody. Upon being processed into the system, Mendenhall was locked in the Webster Parish jail, where he spent one night, before being released on bond the next day.

At the hearing, Deputy Cropper testified as to the facts and circumstances supporting probable cause. Mendenhall, in his defense, presented the affidavit of Ted Nellams, an individual indisputably at the scene of Myles' shooting, who claimed to have fired the fatal bullet. The presiding judge, considering Nellams' affidavit, failed to find probable cause to bind Mendenhall over for trial as required under Louisiana law.⁽⁴⁾ The district attorney subsequently dismissed the prosecution against Mendenhall.

While no party contests our jurisdiction to hear this interlocutory appeal, we write briefly to note that, although denials of qualified immunity on summary judgment are not final orders, they are immediately appealable under the collateral order doctrine if based on an issue of law. See Rodriguez v. Neeley, 169 F.3d 220, 222 (5^th Cir. 1999) (citing Cantu v. Rocha, 77 F.3d 795, 802 (5^th Cir. 1996); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

When as here the district court fails to make specific findings of fact or state specific conclusions of law, we will "undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the non-moving party, likely assumed." Behrens v. Pelletier, 516 U.S. 299, 313 (1996). In essence, we will give the plaintiff the benefit of the doubt with regard to any disputed issues of fact, in an attempt to reconstruct the district court's findings and conclusions, and thus review as a matter of law whether under such a factual scenario the § 1983 complaint may proceed. See Colston v. Barnhart, 130 F.3d 96, 98-99 (5^th Cir 1997). If those facts do not materially affect the outcome - i.e., if even under such a factual scenario the officers' actions may be deemed as a matter of law objectively reasonable - the denial of summary judgment is immediately reveiwable as a question of law, and qualified immunity should be granted. See Id. (citing Mitchell, 472 U.S. 511 (1985); Johnson v. Jones, 515 U.S. 304 (1995); Behrens v. Pelletier, 516 U.S. 299 (1996); Nerren v. Livingston Police Dep't, 86 F.3d 469, 472 (5^th Cir. 1996)).

Our review of the district court's order denying summary judgment on qualified immunity grounds is conducted de novo. See Nerren, 86 F.3d at 472 (citing Johnson v. City of Houston, 14 F.3d 1056, 1059 (5^th Cir. 1994)).

It is, by now, well settled and understood that "[f]ederal immunity law shields state officials from personal liability under federal law for civil damages as long as their conduct could reasonably have been thought consistent with the rights they are alleged to have violated." Cantu, 77 F.3d at 805 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)). Qualified immunity protects against novel theories of statutory or Constitutional injury - any purported harm must stem from rights clearly established under law at the time of the incident, and the contours of that right must be sufficiently clear such that a reasonable officer would understand that his actions were violative of the right at issue. See Anderson, 483 U.S. at 638-39. Thus, the qualified immunity standard "gives ample room for mistaken judgments" by protecting "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 343, 341 (1986).

When an individual asserts a claim for wrongful arrest, qualified immunity will shield the defendant officers from suit if "'a reasonable officer could have believed [the arrest at issue] to be lawful, in light of clearly established law and the information the [arresting] officers possessed.' Even law enforcement officials who 'reasonably but mistakenly conclude that probable cause is present' are entitled to immunity." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting Anderson, 483 U.S. at 641); see also Babb v. Dorman, 33 F.3d 472, 477 (5^th Cir. 1994). "Thus, a qualified immunity defense cannot succeed where it is obvious that a reasonably competent officer would find no probable cause. On the other hand, 'if officers of reasonable competence could disagree on this issue, immunity should be recognized.'" Babb, 33 F.3d at 477 (quoting Malley, 475 U.S. at 341).

Thus armed, we turn to the facts of the case now before us. In essence, we must determine whether the facts, viewed in the light most favorable to Mendenhall, support a finding that no reasonable officer could have believed probable cause existed to arrest Mendenhall on charges of second degree murder in the shooting death of William Myles. We note that our determination concerning probable cause is guided by the Supreme Court's mandate in Illinois v. Gates: We look to the totality of the circumstances to determine whether probable cause, or in this case arguable probable cause, existed. 462 U.S. 213, 241 (1983). We are mindful of the notion that "probable cause is a fluid concept - turning on the assessment of probabilities in particular factual contexts - not readily, or even usefully, reduced to a neat set of legal rules." Id. at 232. Thus we embark on a "practical, common-sense [determination] whether given all of the circumstances" a reasonable officer could have believed "there is a fair probability" Mendenhall committed the crime charged. Id. at 238.⁽⁵⁾

Appellee repeatedly draws our attention to the Preliminary Examination, conducted some 10 days after his arrest, in an effort to demonstrate the purported lack of probable cause in this case. While we recognize that the state judge failed to find probable cause at the Preliminary Examination hearing, we reject the notion that this finding bears any relevance to our task in resolving this appeal. The law charges us with determining the reasonableness of the actions taken in light of the cause that existed at the time of arrest. See Hunter, 502 U.S. at 228 (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)) ("Whether [an] arrest [is] constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it - whether at that moment the facts and circumstance within their knowledge and of which they had reasonable trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.") (emphasis added).

However, regardless of logic, and even assuming the worst - i.e., the appellant-deputies seized upon a mystical confluence of events to accomplish their nefarious goal of defeating Mendenhall in the upcoming election - we are compelled by our case law that clearly dictates subjective intent, motive, or even outright animus are irrelevant in a determination of qualified immunity based on arguable probable cause to arrest, just as an officer's good intent is irrelevant when he contravenes settled law. Anderson, 483 U.S. at 641 (citing Harlow, 457 U.S. at 815-20).

We proceed. Mendenhall was arrested pursuant to a valid arrest warrant secured by Deputy Cropper. Cropper obtained the warrant relying on information learned by him and other investigating deputies over the course of the day of the murder. While a valid arrest warrant would normally insulate officers against a claim for false arrest, in a case such as the one before us where the officers charged with false arrest were responsible for securing the warrant, we are required to test the validity of that warrant, applying the usual standards. See Malley, 475 U.S. at 345-46.

The first and primary piece of evidence relied upon was the fact of the shooting itself. It is undisputed that Myles was killed by a single gun shot wound to the back of his head, indicating he was shot while fleeing the scene.⁽⁶⁾

Further information obtained from Wayne Walsh, the first emergency medical technician to arrive on the scene, pointed to Mendenhall as the prime suspect. Specifically, Walsh reported to investigating officers that Mendenhall, at the scene providing crowd control when the ambulance arrived, related that Myles was taken down by a "single head shot," in response to inquiries concerning the circumstances of the shooting. This fact was not immediately evident, as Myles was lying face up in the road.⁽⁷⁾ Mendenhall related first-hand information through the revelation of this fact. Further investigation proved Mendenhall correct.

Walsh further reported that Mendenhall tampered with evidence at the scene. Specifically, Walsh reported witnessing Mendenhall pick up a silver revolver that was lying at the feet of the victim, unchamber the rounds of ammunition in the weapon, examine them, replace them in the chamber, and then place the weapon back on the ground in essentially the same position in which it was originally found.⁽⁸⁾

This foregoing information was obtained without the benefit of John Mendenhall, as shortly before investigating officers Cropper and Null arrived at the scene, Mendenhall simply left, without offering any statement concerning the events of the day.⁽⁹⁾ His sudden absence from the scene of a homicide, without any explanation, warranted further inquiry in the minds of lead investigators.

When investigating officers began to inquire of the officers on the scene as to the morning's events, Deputy Ashley reported speaking with two witnesses.⁽¹⁰⁾ It appears that Ashley, being one of the first officers to arrive after the shooting, began a canvass of the immediate area in an attempt to obtain witness statements and any other relevant evidence. In so doing, he spoke with two witnesses who refused to give their names, but who affirmatively identified Mendenhall as the shooter.⁽¹¹⁾

In an attempt to follow-up with Pamela Neal, who is also Deon Grisby's half-sister, deputies went to the home she shared with her Mother, Gertie, located at the scene of the shooting, approximately sixty feet from where Myles body lay in the street. Officer Jimmy Morgan, assisting with the investigation, accompanied Deputy Null to the Neals' home that afternoon.⁽¹²⁾ He questioned the Neals as to the events they witnessed earlier that day. He maintains that Gertie and her daughter both reported seeing Myles running down the street, weapon in hand, followed by John Mendenhall, also bearing arms. They then reported hearing shots fired, and when they looked next, having apparently ducked in fear, they saw Myles fall to the ground. They further observed Mendenhall, weapon in hand, either standing somewhere near the slain body or near his vehicle. It was obvious at that time that Myles fell victim to the gunfire they had just heard. The Neals further stated no one else with a weapon was anywhere in the area. Sometime during this visit, Pamela Neal executed a written statement as to the day's events.⁽¹³⁾

In deposition testimony concerning these events, Pamela Neal asserts that she never, in fact, identified John Mendenhall as the shooter, and she asserts her mother did not witness events nor answer questions concerning these events, as the deputies maintain.⁽¹⁴⁾ Specifically, she recalls discussing the day's events with Deputy Newton at the hospital, and specifically recalls informing Newton that another man - not Mendenhall - who apparently was driving a green car, shot Myles. She claims, in her deposition testimony, that she was unaware of this individual's identity at that time, and did not provide a name to Newton.⁽¹⁵⁾ In fact, she denies ever identifying Mendenhall as the shooter, thus disputing Ashley's claim of overhearing her make just such a statement. We address the consequences of this factual dispute below.

Later that day, Mendenhall did report to the station house. Prior to initiating the inquiry, Cropper read, and requested Mendenhall acknowledge by initialing, his Miranda⁽¹⁶⁾ rights. Cropper then proceeded to question Mendenhall concerning the shooting, beginning with questions as to whether Mendenhall possessed a nine-millimeter weapon. Mendenhall apparently answered those initial questions, but as soon as the interview focused more intently on the morning's events, Mendenhall refused to provide additional information. Mendenhall maintains that his silence came in response to, and out of shock at, having been read his rights. He did nothing more, he now claims, than assert those rights as he understood them.

We pause in our factual recitation to quickly note that Mendenhall's purported motivation in refusing to answer questions is irrelevant. The indisputable fact, for summary judgment purposes, is his refusal and his subsequent departure from the station house shortly thereafter.⁽¹⁷⁾

After this failed attempt to secure Mendenhall's cooperation, Deputy Cropper sought and obtained the arrest and search warrants.⁽¹⁸⁾ Mendenhall was arrested later that evening.

The undisputed facts, simply summarized, and disregarding the controversial identification from Pamela Neal, are: investigating deputies spoke with two witnesses who affirmatively identified Mendenhall as the shooter; another witness, Pamela Neal in her handwritten statement, placed Mendenhall at the scene with a weapon; medical personnel reported Mendenhall's uncanny knowledge of the wound and Mendenhall's eagerness to finger evidence relating to a homicide; investigating deputies obtained two spent nine-millimeter shell casings from the scene, and later became aware that Mendenhall possessed such a caliber weapon; and Mendenhall refused to cooperate or answer questions concerning the killing. Under such a factual scenario, we simply cannot conclude that it was unreasonable for an officer to believe he had probable cause to arrest John Mendenhall.⁽¹⁹⁾

Mendenhall was at the scene of a homicide, holding a weapon. He was identified as the shooter and was known to be in possession of a weapon that matched the suspected murder device. He fled the scene when investigators arrived, and he subsequently refused to answer questions. His arrest was reasonable, as it was based on arguable probable cause and a civil action for damages under § 1983 cannot be maintained on these facts. It matters not for the purposes of this analysis that a later hearing, aided by the confession of another individual, resulted in Mendenhall's release from custody and bail. "The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested." Graham v. Connor, 490 U.S. 386, 396 (1989) (citing Hill v. California, 401 U.S. 797 (1971)). As such, we REVERSE the order of the district court denying qualified immunity and REMAND to the district court for dismissal of the claims asserted by Mendenhall pursuant to 42 U.S.C. § 1983 and for such other proceedings that are not inconsistent with this opinion.

Mendenhall raises two claims under § 1983, based on his false arrest for William Myles' murder. The first is that a reasonable officer would not have believed that probable cause existed to arrest him. See Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991); Babb v. Dorman, 33 F.3d 472, 477 (5^th Cir. 1994). The second is that the arresting officers knowingly or recklessly submitted a false and misleading affidavit to obtain his arrest warrant. See Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); Hale v. Fish, 899 F.2d 390, 400-02 (5^th Cir. 1990). Material fact issues remain as to both claims.

Mendenhall was arrested the day of Myles's shooting, September 13, 1996. While the investigation at the scene of the shooting appears to have been the basis for Mendenhall's murder arrest,⁽²⁰⁾ the eyewitness testimony that emerged did little to provide probable cause for that arrest. Deputy Ashley claims that two anonymous witnesses at the scene identified Mendenhall as the shooter. Specifically, his written report states that the two witnesses had "said that John Mendenhall had shot the deceased in the head." However, in deposition Ashley admitted that neither witness even saw Mendenhall fire a weapon.⁽²¹⁾ Deputy Cropper, who arrived soon after Ashley, interviewed approximately ten witnesses, all of whom apparently provided him their names.⁽²²⁾ Pressed in his deposition, Cropper, who actually prepared the arrest affidavits and obtained the warrant, admitted that prior to Mendenhall's arrest no witness had told him that Mendenhall had fired a gun, let alone shot Myles.⁽²³⁾

The officers claim that Pamela Neal also identified Mendenhall as the shooter. In her deposition, Neal claims that she not only did not identify Mendenhall as the shooter, but that she informed the deputies that a man in a green car, not Mendenhall, shot Myles. The majority "disregard[s] the controversial identification" from Neal, but on summary judgment we are required to affirmatively consider the evidence in the light most favorable to Mendenhall. Neal's deposition testimony is not contradicted by her written statement, which does not identify Mendenhall as the shooter or even state that Mendenhall fired his gun. Therefore, viewing the evidence favorably to Mendenhall, we are required to credit Neal's testimony that she informed the officers that a man in a green car, not Mendenhall, shot Myles. While Neal's credibility may have been questionable, her statements would reasonably have pointed toward further investigation, prior to Mendenhall's arrest, into other possible suspects.⁽²⁴⁾

Therefore, the summary judgment record suggests that the alleged eyewitness testimony pointing to Mendenhall as the shooter is extremely weak. The other information on which the majority relies to find that a reasonable officer could have found probable cause to arrest Mendenhall is, to me, equally underwhelming. It is reasonably explained by the undisputed fact that Mendenhall was a police officer on the scene pursuing a dangerous criminal at the behest of Cullen Officer White.⁽²⁵⁾

The officers did not have a suspected murder weapon in their possession at the time of Mendenhall's arrest. The majority notes that two spent nine-millimeter shell casings were found at the scene and that Mendenhall was thought to have had a nine-millimeter pistol. This information would have justified the officers in seeking a search warrant for Mendenhall's pistol. ⁽²⁶⁾. For the proposition that probable cause for a search warrant and for an arrest warrant are the same, Brouillette cited only to Giordenello v. United States, 357 U.S. 480, 485-86 (1958). Giordenello merely states that the Fourth Amendment applies to both arrest and to search warrants. See id. It ultimately found an arrest warrant invalid for lack of probable cause. See id. at 1251.⁽²⁷⁾ Zurcher, which held that the Fourth Amendment does not preclude a search warrant because the owner of the place to be searched is not reasonably suspected of criminal involvement, was decided after Broullette. ⁽²⁸⁾ However, the officers had not even obtained such a warrant at the time they obtained the arrest warrant for Mendenhall, let alone performed the requisite ballistics tests on the pistol.⁽²⁹⁾ The fact that Mendenhall, a policeman, was suspected of having a nine-millimeter did little to provide probable cause to arrest him for the murder of Myles.

The majority also notes that Mendenhall handled Myles's weapon at the crime scene. Mendenhall's uncontested testimony is that he picked up Myles's gun to make sure that there were no live rounds still in the gun. Mendenhall removed the shells from the gun and, seeing that there were no live bullets, rechambered the empty shell casings. The summary judgment record does not establish that, as a police officer faced with stressful, violent and chaotic circumstances,⁽³⁰⁾ Mendenhall's conduct was unusual, let alone suspicious.⁽³¹⁾ Therefore, a fact issue remains as to whether that conduct provided any cause for arresting him for Myles's murder.

Yet, while White apparently led the Webster Parish investigators to the scene of Myles' death, they did not ask White any questions about what had happened.⁽³²⁾ The investigators took over the crime scene and immediately dispatched White to investigate an auto accident. White complied, albeit unhappily.⁽³³⁾ Later, Deputy Null apparently spoke to White, but it does not appear that White was asked about Mendenhall's role in the incident.⁽³⁴⁾ Cropper confirmed that he did not ask White why Mendenhall was at the crime scene, and was not aware of any such inquiry by any of his colleagues, prior to seeking the arrest warrant. Clearly, a reasonable policeman would have thoroughly examined White before seeking an arrest warrant against Mendenhall, a fellow policeman. Mendenhall explained his subsequent silence to the investigating officers by noting that 1) he answered questions until the officers were asking only whether he had shot Myles, not whether he had any information about the crime;⁽³⁵⁾ 2) that he was shocked that he was considered a suspect; and 3) that he did not wish to answer these particular questions without an attorney present. Mendenhall's explanation is buttressed by the officers' apparent treatment of White and by the entire tenor of the investigation that preceded Mendenhall's arrest. Reading the summary judgment record favorably to Mendenhall, it appears that he could reasonably have believed that the officers had unfairly fixed upon him, that they would not have considered information he could have provided pointing away from him or toward another shooter, and therefore that there was no point in speaking to the investigators without an attorney.⁽³⁶⁾ Such a silence would not provide probable cause for his premature arrest.⁽³⁷⁾

I recognize that probable cause is assessed not by any individual factor, but by the totality of the circumstances. See Illinois v. Gates, 462 U.S. 213, 241, 103 S.Ct. 2317, 6 L.Ed.2d 527 (1983). I also recognize that, to have qualified immunity, the defendants need only have had a reasonable belief, at the time of arrest, that probable cause exists. See Hunter, 502 U.S. at 227, 112 S.Ct. 534 (1991). However, probable cause exists only if, at the time of arrest, "the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing" that Mendenhall had committed second degree murder. Id. at 228, 112 S.Ct. 534. Reading the summary judgment record in the light most favorable to Mendenhall, I am unprepared to conclude that a prudent Webster Parish officer, possessing only the limited and equivocal information that had been produced by a brief investigation targeted at Mendenhall, could reasonably have believed at the time of arrest that Mendenhall was guilty of second-degree murder. Therefore, I disagree with the majority's premature conclusion that, as a matter of law, a reasonable officer in Cropper's shoes could have concluded that probable cause existed for Mendenhall's arrest for the murder of Myles.

Mendenhall's second claim is that the affidavit used to arrest him contained material misstatements or omissions that were made recklessly or intentionally. We have also required, to show a constitutional violation sufficient to overcome qualified immunity, that: 1) the misstatements or omissions have been "of such character that no reasonable official would have submitted it to a magistrate"; and 2) that the misstated or omitted facts be "clearly critical" to a finding of probable cause, such that probable cause would not exist without them. See Hale, 899 F.2d at 400-02; Morin v. Caire, 77 F.3d 116, 122 (5^th Cir. 1996).

The arrest warrant affidavit consists entirely of conclusory allegations.⁽³⁹⁾ With the exception of the statement that Mendenhall left the scene without speaking to investigators, it also appears false. Mendenhall did not fire his pistol, did not shoot Myles, and did not commit second-degree murder.

It appears that the material misstatements and omissions were "clearly critical" to the existence of probable cause.⁽⁴⁰⁾ Removing the misstatements would, in essence, leave only the fact that Mendenhall did not speak to investigating officers. This fact alone is insufficient, as Deputy Null admitted, to provide even arguable probable cause for Mendenhall's arrest.

The only remaining question is whether, on summary judgment, we are prepared to conclude as a matter of law that 1) the misstatements and omissions were neither intentional nor reckless; or that 2) the misstatements and omissions were not of such a character that a reasonable officer would not have submitted the magistrate. See, e.g., Hale, 899 F.2d at 400-02. Reading the evidence in the light most favorable to Mendenhall, I am not prepared to draw either conclusion. As to the misstatements, the officers knew what the witnesses told them. Rather than present what they were told, they apparently mischaracterized the witnesses' statements. They then relied almost entirely on those apparent mischaracterizations and on conclusory statements in seeking an arrest warrant, rather than presenting the facts they did have. In the absence of the apparent misstatements, at the very least a fact issue remains as to whether the affidavit approached a showing of probable cause, and therefore as to whether any reasonable officer would have submitted such an affidavit in search of an arrest warrant. See Malley v. Briggs, 475 U.S. 335, 344, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ("Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable will the shield of immunity be lost.") (internal citation omitted). As to the omissions, we have held that when the omitted facts are "clearly critical" to a finding of probable cause, recklessness can be inferred from proof of the omissions themselves. Hale, 899 F.2d at 400.

Further, the dissent's additional attempt to discredit Ashley's report of these two witnesses by referencing ten witnesses supposedly interviewed by Cropper at the scene of the crime, who were supposedly unable to testify that Mendenhall shot Myles, is factually incorrect and misstates the record. In the first instance, Cropper testified that he did not, in fact, successfully interview witnesses at the scene. Rather, Ashley and Null canvassed the area, while Cropper's minor efforts to speak with local residents were generally met with resistance. Thus, when Cropper referenced ten witnesses to these events during the Preliminary Examination, he was referring to witnesses generally, not simply eyewitnesses to the shooting. His deposition testimony further reveals that some of them were, in fact, interviewed after the arrest (thus, they are not relevant to the matter before this Court today.) Further, two of the ten witnesses mentioned by the dissent and referred to by Cropper as supporting probable cause were, in fact, the two witnesses interviewed and reported by Ashley. Thus, the dissent's assertion that "Cropper, who arrived soon after Ashley, interviewed approximately ten witnesses, all of whom apparently provided him their names," does nothing to undermine Ashley's report that the witnesses were reluctant to cooperate, as, in fact, it misstates the record and Cropper's role in interviewing witnesses.

16. ¹⁶Miranda v. Arizona, 384 U.S. 436 (1966).

The law requires that the officers, in order to arrest, must have probable cause just as they would need in order to search. In this case, the requisite probable cause appears to be coterminous. Simply stated, a warrant to search for Mendenhall's gun would have required probable cause to believe that the weapon to be searched for was evidence of a crime. The only applicable crime on these facts is murder. Our case law, following the Supreme Court, makes clear that probable cause to search is no different than probable cause to arrest. See United States v. Brouillette, 478 F.2d 1171, 1177 (5^th Cir. 1973)("It is well recognized that the probable cause required to justify a search warrant is coextensive with the probable cause required to justify an arrest warrant.") The dissent states: "[T]wo spent nine-millimeter shell casings were found at the scene and . . . Mendenhall was thought to have had a nine-millimeter pistol. This information would have justified the officers in seeking a search warrant for Mendenhall's pistol." Certainly the dissent does not mean to imply that probable cause exits on these facts to search the home of every individual in the community known to possess a nine-millimeter weapon. The only conclusion to be drawn from this statement is that the presence of the shell casings, coupled with Mendenhall's actions that morning, gave the officers probable cause. We simply fail to see how the officers could have had probable cause to search for a suspected murder weapon owned by Mendenhall, as the dissent maintains, but not probable cause to arrest Mendenhall for murder, under the unique facts of this case.

26. ²⁶ The dissent claims that, by acknowledging that the officers could reasonably have sought a search warrant for Mendenhall's nine-millimeter pistol, I have acknowledged that they also acted reasonably in arresting Mendenhall for murder. I disagree. To support the proposition that probable cause to search for Mendenhall's pistol and probable cause to arrest Mendenhall for murder are coterminous, the majority cites United States v. Brouillette, 478 F.2d 1171, 1178 (5^th Cir. 1973) ("It is well recognized that the probable cause required to justify a search warrant is coextensive with the probable cause required to justify an arrest warrant."). We have never repeated this statement or cited Brouillette for this proposition. Moreover, Brouillette is readily distinguishable. In Brouillette, we held that federal officers must, to obtain a search warrant for a suspected house of prostitution, show probable cause for believing that an offense had been committed. See id. at 1176-77. We held that the search warrant at issue was invalid for failure to show probable cause. See id. at 1177. To support that conclusion, we stated that no arrest warrant, for any crime, could have been obtained. See id.

27. Therefore, in Brouillette we did not find that the existence of probable cause for a search warrant of an item suspected of use in a crime established probable cause for an arrest warrant. Rather, we held the converse: that the absence of probable cause for an arrest warrant, due to the lack of a showing that a crime had occurred, indicated the absence of probable cause for a search warrant. See also Giordenello v. United States, 357 U.S. 480, 485-86 (1958) (stating that the Fourth Amendment applies to both arrest and search warrants, and ultimately invalidating an arrest warrant for lack of probable cause) (cited in Brouillette).

Therefore, Brouillette does not establish that probable cause to search for Mendenhall's pistol was coterminous with probable cause to arrest Mendenhall for Myles' murder, and under the circumstances I believe the two were not coterminous. Probable cause for a search warrant does not require probable cause to arrest the person whose property is to be searched. See United States v. Melvin, 596 F.2d 492, 496 (1^st Cir. 1979); Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978) ("The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific 'things' to be searched for and seized are located on the property to which entry is sought.").

28. "[W]ith respect to a person who the police do indeed suspect but do not have probable cause to arrest, such a person's property may be searched upon probable cause to believe that fruits, instrumentalities, or evidence of crime are present, even though the products of the search may implicate him." Melvin, 596 F.2d at 496. In Melvin, the First Circuit found that there was probable cause to search Melvin's property for instrumentalities or evidence of a crime based on an affidavit providing a reasonable suspicion that Melvin had committed the crime, even though that affidavit did not provide probable cause to arrest Melvin. See id. at 496-97 (noting that a contrary holding would "render property searches ineffective as tools of criminal investigations in many cases"). See also United States v. Rojas, 671 F.2d 159, 165 (5^th Cir. 1979) ("[T]he facts necessary to show probable cause to arrest are not necessarily the same as those required to show probable cause to search.") (citing Melvin ).

In this case, as in Melvin and not Brouillette, it is clear that a shooting had occurred. Mendenhall had been placed at the scene with a gun. Mendenhall was suspected of having a nine-millimeter pistol and two nine-millimeter shell casings had been recovered at the scene. Obtaining and testing Mendenhall's weapon would have resolved the question of whether Mendenhall's weapon had been fired and, if it had, whether it was the weapon used in the shooting. Cf. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 307 (1967) (holding that government may search for "mere evidence" of a crime and that "in the case of 'mere evidence,' probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction"); Rojas, 671 F.2d at 165 ("[P]robable cause to search exists when facts warrant a reasonable person to believe that the objects sought in connection with a crime will be found.") (internal citation omitted).

34. ³⁴ White's deposition testimony suggests that the discussion with Null occurred after the arrest warrant for Mendenhall was issued, but this is not clear.

40. ⁴⁰ The officers have alleged that Cropper engaged in a phone conversation with the magistrate, and provided a number of facts that supplied a basis, beyond the affidavits, for the issuance of the warrant against Mendenhall. However, the officers have not alleged any specifics about what was said, or provided evidence to support their claim that the magistrate did not rely on the affidavits. The only record evidence on the point is Deputy Jimmy Morgan's testimony that he heard Cropper tell the judge that "some of the people up there had told them that John shot him." Morgan could not recall anything else Cropper told the judge; clearly his testimony does not suggest that Cropper's phone statements provided probable cause for Mendenhall's arrest. Therefore, at least in the context of a summary judgment motion against Mendenhall, we must assume that the affidavits were the sole evidence before the magistrate. See United States v. Jackson, 818 F.2d 345, 350 (5^th Cir. 1987) ("Our review is limited to the affidavit itself because the government presented no evidence to the district court to indicate whether other facts may have been before the magistrate and considered by him in his determination of probable cause."); Hale, 899 F.2d at 401 (rejecting claim that other information not in affidavit was provided to magistrate because "Major Jones does not state the substance of this information and cites no place in the record where it may be found.").