[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 6, 2007
No. 06-14784 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-60437-CV-WJZ
KAREN HARDY,
HENRY HANNAH,
Plaintiffs-Appellants,
versus
BROWARD COUNTY SHERIFF'S OFFICE,
KEN JENNE, Sheriff,
THEOPHILUS WOULARD,
MYKO COKER,
ALBURY A. BURROWS,
WILLIAM JACKSON,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 6, 2007)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Henry Hannah and Karen Hardy (“Appellants” or “Plaintiffs”), proceeding
pro se, appeal the district court’s dismissal of their civil rights action. For the
reasons that follow, we affirm.
I. BACKGROUND
Appellants filed a 42 U.S.C. § 1983 action against the Broward County
Sheriff’s Department, Sheriff Ken Jenne, Sergeant William Jackson, and Deputies
Theophilus Woulard, Albury Burrows, and Myko Coker (“Defendants”), alleging
that Defendants violated their rights under the Fourth, Fifth, Sixth, and Fourteenth
Amendments.
According to the complaint, Hannah was inside Hardy’s apartment watching
television on January 3, 2004, when a power outage occurred. Hannah went
outside to investigate and was approached by Deputies Woulard, Burrows, and
Coker. The Deputies, with “weapons drawn,” ordered Hannah to the ground.
Hannah told the Deputies that he was not the person they were looking for, and
upon viewing Hannah’s identification (which they had retrieved from his wallet),
the Deputies asked Hannah the whereabouts of his brother, Herman Hannah.
While Hannah was lying face-down in front of the partially open door of the
2
apartment, two of the Deputies entered the apartment. After approximately three
minutes, one of the Deputies exited the apartment and again asked Hannah
“where’s your brother?” Hannah replied that he did not know. The Deputies then
escorted the handcuffed Hannah into the apartment and again demanded that
Hannah tell them where they could find Herman.
The Deputies began a warrantless search of the apartment and spotted a
white, ceramic bowl. Upon removing the lid from the bowl, the Deputies found a
plastic bag that contained what they believed to be a controlled substance. After
field-testing the substance, the Deputies determined that it was cocaine, and one of
the Deputies stated that he “[knew] now [that Hannah] would tell [them] where
[his] brother” was located. Hannah replied that he did not know Herman’s
whereabouts and stated that the Deputies were unlawfully inside the apartment.
Around this time, Hardy entered her apartment, and upon seeing the
Deputies and a handcuffed Hannah, she asked the Deputies if they had a search
warrant. The Deputies responded that they did not have a warrant but they had
found cocaine inside the apartment. Deputy Woulard asked Hardy if she had ever
seen the cocaine-filled bags that were found in the ceramic bowl, and Hardy
replied that she had not. Hardy also noticed that Deputy Coker had entered her
bedroom and opened her dresser drawer.
3
The Deputies took Hannah to the police station and charged him with
trafficking 28 grams of cocaine. He remained in jail for 10 days before he was
released on bond. Upon his release, he filed an “internal affairs” complaint against
the Deputies with the Broward County Sheriff’s Office. Sergeant Jackson
investigated the complaint and concluded that the Deputies’ actions were proper.
Ultimately, the charge against Hannah was reduced to possession with the intent to
distribute 20 (instead of 28) grams of cocaine.
The complaint also alleged that the Deputies harassed Hannah by “walking
out of the dark around corners during the night in the nature of an investigating
manner,” telling other officers that his brother Herman had shot at the Deputies,
and jailing him overnight for a misdemeanor charge.
Hardy alleged that on January 4, 2004, the day after Hannah’s arrest, the
Deputies harassed her by stopping her and searching both her and her vehicle while
she was driving to her job. She also alleged that on the following day, the Deputies
stopped her and searched her while she was walking to a friend’s house. After the
second search, Hardy filed her own “internal affairs” complaint against the
Deputies. As with Hannah’s complaint, Sergeant Jackson investigated Hardy’s
complaint and ultimately found that the Deputies’ conduct was proper.
In support of the instant complaint, Appellants attached, inter alia, (1) letters
4
from the Broward County Sheriff’s Office of Professional Compliance informing
Appellants of the investigations into their complaints and the outcome of those
investigations; (2) Appellants’ affidavits; and (3) Deputy Woulard’s police report
from Hannah’s arrest.
According to Woulard’s police report, Hannah’s brother Herman was a
fugitive wanted for aggravated assault on a law enforcement officer. Deputies
Woulard and Burrows had received information linking Herman to Hardy’s
apartment. The Deputies investigated the address on January 1, 2004 and observed
that Herman was not there. On January 3rd, the Deputies conducted a follow-up
investigation and observed Hannah walk outside and leave the apartment door
partially open. From their vantage point, which was several feet away, the
Deputies believed that Hannah was Herman, and they detained Hannah to verify
his identity. At that point, Hannah “spontaneously replied” that he “had nothing to
do with the shooting, it’s my brother you’re looking for. We look alike.” As the
Deputies escorted Hannah back toward the apartment, Deputy Woulard smelled the
aroma of “burnt cannabis.” Woulard “peek[ed] into the door” and saw, in plain
view, a white bowl1 containing a large clear plastic bag, which itself contained
smaller, clear plastic bags filled with a substance that Woulard suspected was
1
Deputy Woulard’s report does not indicate whether the bowl was covered (either
completely or partially) with a lid or a top.
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cocaine. The Deputies then conducted “a general non-invasive” search of the
apartment to determine whether Herman was inside. The Deputies also field-tested
the suspicious substance and confirmed that it was cocaine.
After the Deputies gave Hannah his Miranda2 warnings, he admitted that he
had smoked marijuana before exiting the apartment and that the cocaine was his.
Hannah was then taken into custody and transported to the police station.
In response to the complaint, Defendants filed a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion,
concluding that (1) Plaintiffs had failed to make any specific factual allegations of
wrongdoing against the Broward County Sheriff’s Department and Sheriff Jenne,
(2) Plaintiffs had failed to state a cognizable claim against Sergeant Jackson, and
(3) the Deputies were entitled to qualified immunity. This appeal followed.
III. DISCUSSION
A. Whether the Deputies were Entitled to Qualified Immunity
On appeal, Appellants argue that they sufficiently alleged that Deputies
Woulard, Burrows, and Coker violated Hannah’s constitutional rights, and the
district court erroneously concluded that the Deputies were entitled to qualified
immunity. Specifically, Appellants assert that the Deputies violated (1) Hannah’s
2
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
6
Fourth Amendment rights by forcibly detaining him without probable cause3 and
conducting a warrantless search of Hardy’s apartment, and (2) Hannah’s right to be
informed of the charges against him under the Fourteenth and Sixth Amendments,
as the Deputies never arrested Hannah for, nor read the Miranda warnings
regarding, his “consumption of marijuana.”4
“We review a district court’s grant of a motion to dismiss based on qualified
immunity de novo and accept well-pleaded allegations as true, construing facts in
the light most favorable to the plaintiffs.” Collier v. Dickinson, 477 F.3d 1306,
1308 (11th Cir. 2007). “A complaint is subject to dismissal under Rule 12(b)(6)
when its allegations, on their face, show that an affirmative defense bars recovery
on the claim.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). “Once the
affirmative defense of qualified immunity is advanced[,] . . . [u]nless the plaintiff’s
3
On appeal, Appellants also claim that the Deputies violated Hannah’s Fourteenth
Amendment rights to due process and equal protection by arresting and detaining him without
probable cause. In support of this claim, however, Appellants repeat the arguments they raise
regarding their claim that the Deputies violated Hannah’s Fourth Amendment rights by detaining
him without probable cause. We therefore address these claims together under the Fourth
Amendment rubric.
4
In their brief, Appellants do not challenge, and indeed do not mention, (1) the district
court’s dismissal of their claims against the Broward County Sheriff’s Department, Sheriff
Jenne, and Sergeant Jackson, (2) the dismissal of their claims of harassment by the Deputies, and
(3) the dismissal of Hardy’s claim that the Deputies violated her Fourth Amendment rights by
conducting a warrantless search of her apartment. Appellants have thus abandoned these issues
on appeal, and we do not discuss them further. Although we afford liberal construction to pro se
pleadings, a pro se litigant who offers no substantive argument on an issue in his initial brief
abandons a challenge to that issue on appeal. See Irwin v. Hawk, 40 F.3d 347, 347 n.1 (11th Cir.
1994) (noting that a pro se litigant abandons an issue by failing to challenge it on appeal).
7
allegations state a claim of violation of clearly established law, a defendant
pleading qualified immunity is entitled to dismissal before the commencement of
discovery.” Marsh v. Butler County, 268 F.3d 1014, 1022 (11th Cir. 2001)
(internal quotation marks omitted).
Qualified immunity protects government officials, acting within their
discretionary authority, “from civil trials (and the other burdens of litigation,
including discovery) and from liability if their conduct violates no clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Lassiter v. Alabama A & M Univ., Bd. of Trustees, 28 F.3d 1146,
1149 (11th Cir. 1994) (internal quotation marks omitted). To receive qualified
immunity, a government official “must first prove that he was acting within the
scope of his discretionary authority when the allegedly wrongful acts occurred.”
Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks and
citations omitted). The burden then “shifts to the plaintiff to show that qualified
immunity is not appropriate.” Id. “The Supreme Court has set forth a two-part test
for the qualified immunity analysis.” Vinyard v. Wilson, 311 F.3d 1340, 1349
(11th Cir. 2002). A court must first determine “whether [the] plaintiff’s
allegations, if true, establish a constitutional violation.” Hope v. Pelzer, 536 U.S.
730, 736, 122 S.Ct. 2508, 2513, 153 L.Ed.2d 666 (2002) (citations omitted). “If a
8
constitutional right would have been violated under the plaintiff’s version of the
facts, the next, sequential step is to ask whether the right was clearly established.”
Vinyard, 311 F.3d at 1349 (internal quotation marks and citations omitted).
Appellants do not dispute that the Deputies were acting within the scope of
their discretionary authority when the allegedly wrongful conduct occurred. Thus,
we consider only whether Appellants’ allegations, if true, establish that the
Deputies violated clearly established constitutional law.
1. Hannah’s Fourth Amendment Rights
The Fourth Amendment5 provides for the right to be free of unreasonable
searches and seizures, and mandates that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV.
a. The Deputies’ Forcible “Detention” of Hannah
Hannah argues that “probable cause” to “forcibly detain” him without a
warrant “ceased to exist” when the Deputies “discovered that [he] was not his
Brother Herman,” and the Deputies violated his Fourth Amendment rights by
continuing to detain him after this discovery. As the district court noted, this claim
appears to be an attempt to allege either an unlawful Terry6-stop, or an arrest
5
The Fourth Amendment applies to the states via the Fourteenth Amendment. United
States v. Davis, 313 F.3d 1300, 1302 (11th Cir. 2002).
6
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
9
lacking probable cause.
When a police officer makes a Terry-stop, that is, a brief seizure or
investigatory detention, United States v. Perez, 443 F.3d 772, 777 (11th Cir. 2006),
the Fourth Amendment is satisfied if the officer “has an objectively reasonable
suspicion that criminal activity may be afoot.” United States v. Dunn, 345 F.3d
1285, 1289 (11th Cir. 2003) (internal quotation marks omitted). “Reasonable
suspicion is determined from the totality of circumstances and collective
knowledge of the officers.” United States v. Nunez, 455 F.3d 1223, 1226 (11th
Cir. 2006).
When a police officer makes an arrest, as opposed to a Terry-stop, the
officer must have probable cause to believe that the arrestee has committed, is
committing, or is about to commit a crime. See Wood v. Kesler, 323 F.3d 872, 878
(11th Cir. 2003). If the officer lacks probable cause, the arrest violates the Fourth
Amendment, id., and “the arrestee has a claim under section 1983 for false
imprisonment based on a detention pursuant to that arrest.” Ortega v. Christian, 85
F.3d 1521, 1526 (11th Cir. 1996). But the existence of probable cause is an
absolute bar to such claims. Marx v. Gumbinner, 905 F.2d 1503, 1505-06 (11th
Cir. 1990).
“For probable cause to exist, an arrest must be objectively reasonable based
10
on the totality of the circumstances.” Lee, 284 F.3d at 1195. “This standard is met
when the facts and circumstances within the officer’s knowledge, of which he or
she has reasonably trustworthy information, would cause a prudent person to
believe, under the circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.” Rankin v. Evans, 133 F.3d 1425,
1435 (11th Cir. 1998) (internal quotation marks omitted). “To receive qualified
immunity protection, an officer need not have actual probable cause but only
arguable probable cause.” Wood, 323 F.3d at 878 (internal quotation marks
omitted). Because only arguable probable cause is required, “the inquiry is not
whether probable cause actually existed, but instead whether an officer reasonably
could have believed that probable cause existed, in light of the information the
officer possessed.” Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997).
After reviewing the record, we conclude that the facts alleged do not
demonstrate that the Deputies lacked either reasonable suspicion to stop Hannah or
arguable probable cause to arrest him. First, Hannah concedes that the Deputies’
initial stop was proper on the basis of misidentification, as it was made in order to
determine whether Hannah was his brother Herman, a fugitive from the law.
Moreover, in the police report, Deputy Woulard asserted that upon escorting
Hannah back to the apartment, he smelled burnt cannabis emanating from the
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residence. Appellants failed to challenge this assertion in either their complaint or
their brief. The smell of cannabis emanating from the apartment would have
caused a prudent person to believe that cannabis could be found inside the
apartment and that Hannah (or someone else inside the apartment) had been
smoking it.7 As discussed in greater detail below, the smell of cannabis coupled
with the possibility that Herman might have been inside the apartment created both
probable cause and exigent circumstances sufficient to justify the Deputies’ entry
into and search of the apartment. And contrary to Hannah’s assertions, the cocaine
found inside the apartment during this search provided the Deputies with probable
cause to arrest him for the offense with which he was ultimately charged. As such,
the facts alleged do not establish a Fourth Amendment violation regarding
Hannah’s arrest and detention, and thus, the district court did not err in holding that
the Deputies were entitled to qualified immunity on this claim.
b. The Deputies’ Warrantless Search of Hardy’s Apartment
Hannah also contends that the Deputies’ warrantless search of Hardy’s
apartment violated Hannah’s Fourth Amendment rights because the Deputies
lacked probable cause to enter and search the apartment when they discovered that
7
Under Florida law, cannabis is a controlled substance, Fla. Stat. § 893.03(5), and the
possession of cannabis is either a misdemeanor or felony offense depending on the amount, Fla.
Stat. § 893.13(6)(a)-(b).
12
Hannah was not his brother Herman. We disagree.
In general, unless there is consent, police officers must obtain a warrant
supported by probable cause to justify a search under the Fourth Amendment.
United States v. Magluta, 418 F.3d 1166, 1182 (11th Cir. 2005). A warrantless
search inside a person’s home is therefore presumptively unreasonable. United
States v. Burgos, 720 F.2d 1520, 1525 (11th Cir. 1983). There are, however,
exceptions to the warrant requirement. Magluta, 418 F.3d at 1182. For example, a
warrantless search is justified where both probable cause and exigent
circumstances exist. United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000).
“Recognized situations in which exigent circumstances exist include: danger of
flight or escape; danger of harm to police officers or the general public; risk of
loss, destruction, removal, or concealment of evidence; and hot pursuit of a fleeing
suspect.” Id. at 669 (internal quotation marks omitted).
Here, Deputy Woulard asserted that he smelled “burnt cannabis” emanating
from the partially open door of the apartment—an assertion Hannah does not deny.
The Deputies therefore had probable cause to believe that someone inside the
apartment had been smoking cannabis and that this cannabis could be found
somewhere inside the apartment. Moreover, had the Deputies delayed entering the
apartment, they risked the “loss, destruction, removal, or concealment of evidence”
13
of this suspected crime, thereby creating exigent circumstances. See id. Thus,
even had the cocaine-filled, plastic bags not been “in plain view” from outside the
partially open door of the apartment (that is, even had the ceramic bowl been
covered with a lid as Hannah alleged), the Deputies had probable cause to believe
that cannabis could be found somewhere inside the apartment (including inside the
ceramic bowl), and there was a risk that Hannah would remove or destroy this
cannabis (or the possible vestiges thereof). This combination of probable cause
and exigent circumstances justified the Deputies’ warrantless search of Hannah’s
apartment, and therefore, the cocaine found inside the ceramic bowl was properly
seized. That the Deputies did not find any cannabis is of no moment, especially
where following Hannah’s arrest, he admitted that he had smoked cannabis inside
the apartment just before the Deputies arrived.8
Furthermore, the Deputies had received information linking Herman, a
fugitive, to the apartment. As such, there was at least arguable probable cause to
believe that Herman was inside the apartment and that Hannah was therefore
harboring a fugitive. And had the Deputies delayed entering the apartment, they
risked the possibility that Herman would flee.
8
Hannah does not dispute Deputy Woulard’s contention that following his arrest, he
admitted to the Deputies that he had smoked cannabis inside the apartment just before the
Deputies arrived.
14
Accordingly, Hannah has failed to establish that the warrantless search of
Hardy’s apartment violated his constitutional rights, and thus, the district court did
not err in concluding that the Deputies were entitled to qualified immunity on this
claim.9
2. Hannah’s Right to Be Informed of the Charges Against Him
Hannah also argues that the Deputies violated his constitutional right to be
informed of the charges against him because the Deputies never arrested him for,
nor read the Miranda warnings regarding, his “consumption of marijuana.”
Hannah contends that he was never “informed of the nature of marijuana being
burned in the apartment” even though Woulard claimed to have entered the
apartment because he smelled cannabis.
The Sixth Amendment10 provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right to . . . be informed of the nature and cause of the
accusation.” U.S. Const. amend. VI (emphasis added). That is, “[t]he Sixth
Amendment guarantees every defendant the right to be informed of the
Government’s accusation against him.” United States v. Silverman, 745 F.2d
9
The district court based its conclusion on a finding that Hannah had failed to assert that
he had a reasonable expectation of privacy in Hardy’s apartment. But we may affirm the
judgment below “on any ground that finds support in the record.” Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249, 1256 (11th Cir. 2001).
10
The Sixth Amendment is applicable to the states via the Fourteenth Amendment.
Moon v. Head, 285 F.3d 1301, 1314 n.15 (11th Cir. 2002).
15
1386, 1392 (11th Cir. 1984).
Here, it is undisputed that Hannah was never “criminally prosecut[ed]” for
or formally charged with marijuana consumption. Hannah does not have a
constitutional right to be informed of accusations that the Government never made,
and he therefore could not have suffered a Sixth Amendment violation for an
offense for which he was never charged or prosecuted. Thus, Hannah has not
established a constitutional violation, and the Deputies are entitled to qualified
immunity on this claim. See Hope, 536 U.S. at 736, 122 S.Ct. at 2513.
B. Failure to Allow Discovery or Hold an Evidentiary Hearing
Appellants also contend that the district court erred by failing to hold an
evidentiary hearing or allow discovery before dismissing the complaint. We
review for abuse of discretion the district court’s denial of discovery. Arthur v.
Allen, 452 F.3d 1234, 1243 (11th Cir. 2006). We also review the district court’s
grant of a motion to dismiss without an evidentiary hearing for abuse of discretion.
Sunseri v. Macro Cellular Partners, 412 F.3d 1247, 1250 (11th Cir. 2005).
Qualified immunity “is an immunity from suit rather than a mere defense to
liability.” Cottrell v. Caldwell, 85 F.3d 1480, 1487 (11th Cir. 1996). Thus,
qualified immunity protects government officials not only from having to stand
trial, but from having to bear the burdens attendant to litigation, including pretrial
16
matters such as discovery. Blinco v. Green Tree Servicing, LLC, 366 F.3d 1249,
1252 (11th Cir. 2004). As such, “qualified immunity questions should be resolved
at the earliest possible stage of a litigation.” Anderson v. Creighton, 483 U.S. 635,
646 n.6, 107 S.Ct. 3034, 3042 n.6, 97 L.Ed.2d 523 (1987).
As discussed above, we conclude that the district court did not err in finding
that the Deputies were entitled to qualified immunity in this case. Because we
reached this conclusion accepting Appellants’ version of events as true, additional
facts adduced during discovery would not have aided this determination. And
because qualified immunity protects government officials from having to bear the
burdens of pretrial matters such as discovery, we conclude that the district court
did not abuse its discretion by dismissing the complaint before discovery.
For similar reasons, we also reject Appellants’ contention that the district
court abused its discretion by failing to conduct an evidentiary hearing. Again,
accepting Appellants’ account of the facts as true, we conclude that they failed to
establish that the Deputies violated clearly established constitutional law.
Additional facts adduced from an evidentiary hearing would not have aided in this
determination. Moreover, “courts will ‘turn a deaf ear to protests that an
evidentiary hearing should have been convened but was not, where . . . the
protestor did not seasonably request such a hearing in lower court.’” Sunseri, 412
17
F.3d at 1250 (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1120 (1st Cir.
1989)). Here, Appellants never requested an evidentiary hearing in the district
court. We therefore conclude that the district court did not abuse its discretion by
failing to convene such a hearing.
C. Opportunity to Amend the Complaint
Finally, Appellants argue that the district court should have granted them
leave to amend their complaint, even though they never requested leave to amend
before the district court.
In Wagner v. Daewoo Heavy Industries America Corp., 314 F.3d 541, 542
(11th Cir. 2002) (en banc), this court held that a district court was not required to
sua sponte grant a counseled party leave to amend his complaint when no motion
to amend had been filed. The applicability of Wagner to pro se litigants, however,
remains an open question. See id. at 542 n.1 (“In this opinion, we decide and
intimate nothing about a party proceeding pro se.”). But even if we were to hold
that Wagner does not extend to pro se plaintiffs, in this case, the district court
properly dismissed Appellants’ complaint without sua sponte granting them leave
to amend because amendment would have been futile. See Hall v. United Ins. Co.
of Am., 367 F.3d 1255, 1262 (11th Cir. 2004) (holding that “denial of leave to
amend is justified by futility when the complaint as amended is still subject to
18
dismissal”). As we concluded above, Appellants failed to establish that the
Deputies violated clearly established constitutional law, and therefore, the Deputies
are entitled to qualified immunity. Accordingly, the district court did not err in
failing to sua sponte grant Appellants leave to amend their complaint.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
19