United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 8, 2004
Charles R. Fulbruge III
Clerk
No. 03-60549
JAMES BRANNON MASON, MELISSA LEE MASON,
and JUSTIN BOYD,
Plaintiffs-Appellants,
v.
LOWNDES COUNTY SHERIFF’S DEPARTMENT,
and LOWNDES COUNTY, MISSISSIPPI,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Mississippi
1:02-CV-146-SAA
Before DAVIS, BENAVIDES and PRADO, Circuit Judges.
DAVIS, Circuit Judge:*
Plaintiffs’ residence was subjected to a search based on
information that later turned out to be incorrect. Plaintiffs
brought suit under 42 U.S.C. § 1983 alleging violation of their
federal constitutional rights, as well as various state law tort
claims. The district court granted summary judgment in favor of
Lowndes County on all federal claims and in favor of the individual
defendants based on qualified immunity. In this appeal the
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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plaintiffs assert that the district court erred in finding (1) that
the warrant in question was supported by probable cause, (2) that
the warrant was executed in an objectively reasonable manner, and
(3) that the individual defendants were entitled to qualified
immunity. The plaintiffs further assert that the district court
improperly allowed the defendants to introduce irrelevant
information in the trial of the state law tort claims. We find no
error, and AFFIRM.
I.
On March 1, 2002, deputies of the Lowndes County, Mississippi,
Sheriff’s Department attempted to arrest Mac Burke (Burke) on a
felony arrest warrant issued in Alabama. Narcotics agents Tim
Howell (Howell) and Larry Swearingen (Swearingen) were among the
officers involved in the attempted arrest. Burke was in his truck
at the time of the attempted arrest, and when he refused to exit
the vehicle one of the deputies smashed the passenger side window
of the truck. Burke then put his truck in gear and sped away,
almost running over some of the deputies. The deputies fired their
weapons at the truck, striking it at least once. The truck also
may have suffered some front end damage when Burke ran over a
street sign during his getaway.
On March 15, 2002, the Narcotics Division of the Lowndes
County Sheriff’s Department received information from a
confidential informant that Burke could be found at an apartment in
Columbus, Mississippi, which is located in Lowndes County. The
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informant also stated that there was a stolen vehicle and a
methamphetamine lab at that address. The deputies verified that a
vehicle meeting the description of the one driven by Burke was at
the address given by the informant. A search warrant was obtained
and executed this same day, and the stolen vehicle and meth lab
were seized. Burke, however, was not there at the time. Shawn
Murphy, an individual arrested at the address, said that Burke had
left the apartment about fifteen minutes before the officers
arrived.
On March 16, 2002, the same confidential informant informed
the officers that Burke was located at another residence in Lowndes
County and that his truck was parked outside that address. The
deputies drove to the address and observed a truck matching the
description of the one driven by Burke parked in the driveway. The
officers could not inspect the truck up-close because several
people were standing in front of the residence. A search warrant
was obtained and executed for the residence, which is the home of
plaintiffs James and Melissa Mason. In addition to plaintiffs,
present at the residence were the Mason’s two sons and Justin Boyd.
The officers entry into the home was forceful. When the
officers entered the home, James Mason attempted to retrieve a
firearm. He was stopped by the officers, forced to the floor, and
placed in handcuffs. Melissa Mason and Justin Boyd were restrained
at gunpoint while the officers searched the home. After
determining that Burke was not at the residence, the officers
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exited the home. After exiting, the officers examined the truck in
the driveway more closely and determined that it was not the same
truck the officers had previously seen Burke driving.
The plaintiffs filed suit under 42 U.S.C. § 1983 claiming that
the arrest warrant was not supported by probable cause, the search
of the residence was carried out in an unreasonable manner, and
that the officers used excessive force in violation of the Fourth
Amendment. The plaintiffs further claimed that the search was
unreasonable under the Mississippi Constitution and asserted
various state law tort claims. Defendants Howell and Swearingen
moved for summary judgment based upon qualified immunity. Defendant
Lowndes County also moved for summary judgment. The district court
granted the individual defendants’ motion based on qualified
immunity. The district court later granted Lowndes County’s motion
for summary judgment on all federal claims. The state tort law
claims against Lowndes County were allowed to proceed. After a
trial on the merits, a jury found Lowndes County not liable under
state tort law. The district court then entered final judgment
dismissing the plaintiffs’ claims. Plaintiffs filed this appeal.
II.
We review the district court’s grant of summary judgment de
novo, considering all evidence in a light most favorable to the
non-movant. Campos v. City of Houston, 113 F.3d 544, 545 (5th Cir.
1997). Summary judgment will be affirmed where, after independent
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review, there is no genuine issue of material fact and the movant
is entitled to a judgment as a matter of law. Walker v. Thompson,
214 F.3d 615, 624 (5th Cir. 2000). Summary judgment may be
affirmed on any basis supported by the record. Conkling v. Turner,
138 F.3d 577 (5th Cir. 1998).
A.
On their claim of illegal seizure under the Fourth Amendment,
the plaintiffs first argue that a genuine issue of material fact
exists as to whether the search warrant issued for the plaintiffs’
home was based on probable cause. Plaintiffs allege that Officer
Howell’s affidavit, on which the magistrate judge based his finding
of probable cause, contained intentional or reckless false
statements. As support for this claim, the plaintiffs point to the
following paragraph from Howell’s affidavit:
On Saturday, March 16, 2002, Agent Howell received
information from the same cooperating indivvidual (sic)
who stated that Mac Burke was located at 2990 Yorkville
Rd. East in Lowndes County, MS. The cooperating
individual advised that the black chevy truck that was
used in the aggravated assault on narcotics agents last
week was also at this residence. Agents physically
observed the vehicle parked under the car port of this
residence. Agents also observed several people standing
in front of the residence.
R. Vol. 1, p. 20. Plaintiffs point out that it was Officer
Collins, not Officer Howell, who spoke directly with the
confidential informant who then relayed the information to Officer
Howell. Plaintiffs further point out that the confidential
informant never specifically stated that Burke was at the address
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provided and that the agents did not observe Burke’s truck at the
residence, rather they only saw a truck that looked like Burke’s.
Affidavits used to support a search warrant are presumed
valid. Franks v. Delaware, 438 U.S. 154, 171 (1978). The veracity
of the affidavit may only be attacked upon a showing of deliberate
falsehood or reckless disregard for the truth by the affiant. Id.
In the context of a § 1983 case, to survive summary judgment the
plaintiffs must demonstrate that a genuine issue of material fact
exists as to whether the false information contained in the
affidavit was provided deliberately or with reckless disregard for
the truth. Freeman v. County of Bexar, 210 F.3d 550 (5th Cir.
2000). To meet this burden the plaintiffs must make a “strong
preliminary showing” that the affiant made the misstatement or
omission “with the intent to mislead the magistrate.” United
States v. Tomblin, 46 F.3d 1369, 1377 (5th Cir. 1995) (quoting
United States v. Clokley, 899 F.2d 297, 301 (4th Cir. 1990).2
The plaintiffs argue that merely showing the falsity of these
statements is sufficient to survive summary judgment and that it is
the province of the jury to determine whether the statements were
made intentionally or recklessly. This argument is without merit.
Franks clearly puts the burden on the challenger to make a
substantial showing of deliberate falsity or reckless disregard for
2
Although Tomblin concerned material omissions as opposed
to material misstatements, the standard is the same. United
States v. Martin, 615 F.2d 318 (5th Cir. 1980).
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the truth. Franks, 438 U.S. at 171. Only then does the
factfinder’s role of determining whether probable cause exists
absent the false information come into play. See id.; Hill v.
McIntyre, 884 F.2d 271, 276 (6th Cir. 1989). In a criminal case
this role is necessarily performed by the trial court at a
suppression hearing; however, in a § 1983 case the task belongs to
the jury. Hill v. McIntyre, 884 F.2d at 276.
Other than the conclusory allegations contained in their
complaint, the plaintiffs have offered no evidence that the errors
in the affidavit resulted from a deliberate attempt to mislead the
magistrate judge. Tomblin, 46 F.3d at 1377. The inaccuracies in
Officer Howell’s affidavit appear to be at most a negligent
interpretation by Howell of Collins’s report of his conversation
with the informant. Unsupported allegations are insufficient to
meet the plaintiffs’ burden on this issue. Franks, 438 U.S. at
171. For these reasons, the district court did not err in
granting summary judgment in favor of the defendants on this issue.
B.
The plaintiffs next argue that the district court erred in
concluding that no genuine issue of material fact existed as to
whether the search warrant was carried out in violation of the
Fourth Amendment. The plaintiffs argue that the manner of entry
into the home and the officers’ conduct while inside the home were
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both objectively unreasonable.3
1.
The plaintiffs first argue that the district court erred in
concluding that the officers’ use of a forceful “no-knock” entry
was justified because of the officers’ previous experience with
Burke and his attempt to run over the officers with his truck.4
The plaintiffs point out that Burke almost ran over the officers
only after Deputy Swearingen broke out the passenger window of the
truck. The plaintiffs argue that a jury could infer that Burke
drove forward because he was frightened by the breaking of his
window, rather than in an attempt to run over the officers. The
plaintiffs further argue that in such a case a jury could infer
that the officers’ belief that the “no-knock” entry was necessary
because Burke was dangerous was not reasonable. The plaintiffs
also contend that the “no-knock” entry was unreasonable because the
officers had no way of knowing whether Burke was inside the home at
the time the warrant was executed. Finally, the plaintiffs argue
that a jury could find that a “no-knock” entry was unnecessary
3
In this appeal, the plaintiffs attempt to argue that the
warrant was carried out in an unreasonable manner because
officers failed to inspect the truck more closely before
executing the warrant. This issue was not raised in the district
court and will not be considered in this appeal. Keenan v.
Tejeda, 290 F.3d 252, 262 (5th Cir. 2002).
4
There was conflicting testimony as to whether any
announcement was made. The district court acknowledged this
discrepancy but found it immaterial because a “no-knock” entry
was warranted under the circumstances.
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because the officers had the house surrounded, preventing Burke’s
possible escape.
Generally, the Fourth Amendment requires that law enforcement
officers knock on the door and announce their presence before
executing a search warrant. Richards v. Wisconson, 520 U.S. 385,
387 (1997). An announcement is not required, however, where “the
police . . . have a reasonable suspicion that knocking and
announcing their presence, under the particular circumstances,
would be dangerous or futile, or that it would inhibit the
effective investigation of the crime[.]” Id. at 394. The showing
of reasonableness necessary to overcome the “knock-and-announce”
requirement “is not high.” U.S. v. Washington, 340 F.3d 222, 226
(5th Cir. 2003) (quoting Richards, 520 U.S. at 394.). In the
instant case, Burke had previously endangered the lives of the
arresting officers during his getaway. Even if he was not
attempting to injure the officers, his action shows a complete
disregard for their safety. Furthermore, Burke was associated with
illegal drugs, and the fact that people associated with drugs often
carry weapons should be considered when deciding the reasonableness
of a no-knock entry. United States v. Rodea, 102 F.3d 1401, 1408
(5th Cir 1996); United States v. Ramos, 71 F.3d 1150, 1158 n.26
(5th Cir. 1995). For these reasons, the district court did not err
in concluding that officers were reasonable in their suspicion that
Burke was dangerous and their decision to perform a “no-knock”
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entry was warranted.
2.
The plaintiffs next argue that the officers used excessive
force in executing the warrant. The plaintiffs argue that the
officers entered the home with their guns drawn. Plaintiff James
Mason testified that he was forced to the ground and placed in
handcuffs. Plaintiff Boyd stated that he was slammed to the floor
and an officer put a knee in his back. Plaintiffs Melissa Mason
and Boyd testified that they were detained at gunpoint throughout
the search. The plaintiffs argue that under the circumstances of
this case the officers’ conduct was unreasonable and amounted to
excessive force.
Claims of excessive force are analyzed under the
“reasonableness” standard of the Fourth Amendment. Graham v.
Connor, 490 U.S. 386, 395 (1989). The “reasonableness” of a
particular use of force must be judged from the perspective of a
reasonable officer at the scene, rather than in hindsight. Id. at
396. Actual physical injury is a factor, but not a necessary
element, of an excessive force claim. Petta v. Rivera, 143 F.3d
895, 901-902 (5th Cir. 1998). Rather, the proper inquiry is
whether the use of force was “grossly disproportionate to the
need[.]” Id. At 902.
In the instant case, the officers entered a home with an
unknown number of occupants and with the expectation of
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encountering a dangerous suspect who was known to be involved with
drug activity. Moreover, when the defendants entered the home one
of the plaintiffs attempted to retrieve a firearm. The record
further reveals that the plaintiffs were detained at gunpoint for
only a short period of time and that the officers immediately
retreated from the home upon learning that Burke was not there.
Finally, the plaintiffs have not alleged any physical injury as a
result of the officers’ actions. Considering the circumstances
surrounding the execution of this warrant and the lack of physical
injury to the plaintiffs, we conclude that the district court did
not err in finding the actions of the officers were reasonable.
C.
Because the summary judgment evidence reflects that none of
the conduct complained of by the plaintiffs violated any
constitutionally protected right of the plaintiffs, the district
court correctly granted summary judgment to the individual officers
and the county. See Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir.
1999).
III.
The plaintiffs argue finally that the district court erred in
allowing the defendants to cross-examine plaintiff James Mason
about his wife’s (plaintiff Melissa Mason) participation in wet T-
shirt contests that took place subsequent to the filing of this
suit. The plaintiffs claim that this evidence is irrelevant.
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The defendants argue that this evidence was relevant because
Melissa Mason had alleged that she was “not sexy” and “not
interested in sex anymore” as a result of the defendants’ actions.
Moreover, the defendants argue that the plaintiffs opened the door
to this line of questioning by asking Melissa Mason about her lack
of sex life since the incident.
Wet T-shirt contests are sexual in nature, and Melissa Mason’s
participation in such sex-related activities tends to contradict
her testimony that she was no longer sexual. We therefore conclude
that the district court did not abuse its discretion in allowing
the defendants to cross-examine James Mason about his wife’s
participation in these activities.
IV.
For the reasons stated above, we affirm the district court’s
grant of summary judgment in favor of the defendants. We further
find no abuse of discretion by the district court on the plaintiffs
evidentiary claim.
AFFIRMED
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