A bunch of arrest warrant affidavits were executed in a drug sweep. Plaintiff’s, however, was seriously mistaken, and he was arrested. The district court’s qualified immunity summary judgment for him is reversed. Bickford v. Hensley, 2020 U.S. App. LEXIS 33400 (10th Cir. Oct. 23, 2020):
We conclude that Defendant Hensley lacked arguable probable cause to arrest Plaintiff for either charged offense. As to the computer crime, the affidavit does not provide, and Deputy Hensley does not otherwise identify, any facts indicating that Plaintiff used a computer system at all, let alone in a manner that violated Oklahoma law. Rather, Deputy Hensley’s sole evidence against Plaintiff arose from a cryptic Facebook message between third-parties. So Deputy Hensley did not have arguable probable cause to arrest Plaintiff for the charged computer crime.
As to conspiracy to distribute marijuana, the affidavit does not provide, and Deputy Hensley does not otherwise allege, any facts suggesting that Plaintiff entered into a conspiracy to distribute marijuana. To the contrary, the Facebook message only provides the remotest of evidence that Plaintiff used marijuana. The message states that an alleged conspirator gave someone named “Chaz” a “small dab.” Even if Deputy Hensley believed that Plaintiff was “Chaz” and that he purchased the marijuana, our law distinguishes between “consumers, who do not plan to redistribute drugs for profit,” and “distributors, who do intend to redistribute drugs for profit, thereby furthering the objective of the conspiracy.” United States v. Ivy, 83 F.3d 1266, 1285-86 (10th Cir. 1996). “Casual transactions with persons involved in a conspiracy are insufficient to establish that critical connection-one who merely purchases drugs or property for personal use from a member of a conspiracy does not thereby become a member of the conspiracy.” Id. at 1286 (quoting United States v. Horn, 946 F.2d 738, 741 (10th Cir. 1991) (internal quotation marks, alterations, and citation omitted)). Because the evidence cited by Deputy Hensley demonstrates that Plaintiff was, at most, a marijuana buyer for personal use, Deputy Hensley did not have arguable probable cause to arrest Plaintiff for the charged conspiracy crime relating to the distribution of marijuana.
Next, we consider whether Defendant Hensley may escape liability based on the notion that he could have arrested Plaintiff for the uncharged offense of marijuana possession. In this case, the only evidence that Deputy Hensley identified is the Facebook conversation occurring over one year prior to Plaintiff’s arrest.
Both the form and content of the Facebook message render it particularly unreliable here.