Hart v. O'Brien, 96-40151

Citation127 F.3d 424
Decision Date06 November 1997
Docket NumberNo. 96-40151,96-40151
Parties47 Fed. R. Evid. Serv. 1447 Peggy Nell HART, Plaintiff-Appellee, v. Harold B. O'BRIEN, DPS Officer, et al., Defendants, Harold B. O'Brien, DPS Officer; Frank Montana, DPS Officer; C.T. Myrick, Law Enforcement Officer; Carl Motley; Jeff Starnes, Assistant Lamar County Attorney, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Curtis B. Stuckey, Nacogdoches, TX, for Plaintiff-Appellee.

Karen Denise Matlock, Austin, TX, for Harold B. O'Brien and Frank Montana Defendants-Appellants.

Robert Scott Davis, Cooper, Flowers, Davis, Fraser & Dennyberry, Tyler, TX, for C.T. Myrick, Carl Motley and Jeff Starnes Defendants-Appellants.

Appeals from the United States District Court for the Eastern District of Texas.

Before BARKSDALE, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Various state and county officials searched the home of Peggy Nell Hart ("Hart"), arrested her, and charged her with possession of marijuana. She remained in jail more than two weeks. After the state dismissed the charges, Hart filed suit pursuant to 42 U.S.C. § 1983 and state law against Red River County, Texas ("the county") and a number of the officials involved in the case. These officials include Jeff Starnes, an assistant county attorney in Lamar County; Harold O'Brien and Frank Montana, both Texas Department of Public Safety ("DPS") narcotics officers; and Carl Motley and Tommy Myrick, who were at the time Red River County sheriff's deputies (collectively, "the officials"). The county and the officials then moved for summary judgment, with the county arguing that it could not be vicariously liable for the actions of its officials and the officials variously asserting absolute, qualified, and official immunity. The district court granted the county summary judgment and Myrick summary judgment in part, but denied the rest of the motions. The officials mount an interlocutory appeal of the portion of the district court's judgment dealing with immunity. Finding error as a matter of law, we reverse the district court's judgment on qualified immunity and official immunity; we render judgment in favor of all the officials on the federal claims and in favor of O'Brien and Montana on the state law claims.

I

In reviewing a district court's denial of a motion for summary judgment on the grounds of immunity, we must view the facts in the light most favorable to the nonmovant. Blackwell v. Barton, 34 F.3d 298, 301 (5th Cir.1994). 1

Hart and David Conine lived near each other in a rural area of Red River County. Conine resided in a trailer and Hart in a white house with black trim and shutters; their homes were separated by a pasture and partly surrounded by dense woods. However, the summary judgment evidence also reveals that Hart, at times, spent the night at Conine's trailer.

On August 11, 1992, the state and county conducted an aerial survey of the property surrounding the trailer and the white house with black trim, and they discovered several marijuana patches. O'Brien was assigned to investigate. O'Brien believed that the marijuana was growing on land owned or controlled by Conine, and determined that Conine had been arrested in 1985 for growing marijuana and operating a methamphetamine laboratory on the same property. O'Brien, along with Montana and nine police officers, conducted surveillance on the Conine residence and the surrounding property for about two weeks. O'Brien and Montana jointly supervised the operation. The agents ultimately determined that six marijuana patches existed: three were in a tree line across a pasture from Hart's home (one being directly across the pasture from the home), one was near a trash dump southwest of the Hart residence, one was northeast of the trash dump, and one was amidst some trees directly behind the Hart home.

The officers saw Hart engage in certain activities (or saw signs of such activities) that led them to believe she was residing in Conine's trailer. Hart does not contest that the officers made the following observations:

On August 12, Hart stayed overnight at Conine's residence.

On August 13, Hart and Conine left the property. Upon Hart and Conine's return the next day, the officers observed them unloading clothes from Conine's vehicle and taking them into the trailer.

Hart spent that night in the trailer.

Hart stayed at least two other nights in the trailer during the two-week surveillance period.

Hart went out to eat occasionally with Conine.

Hart would feed the animals in and around Conine's barn.

The officers observed Jerry Benton, a known marijuana grower, visit the Conine residence. Hart was at the residence during at least some of Benton's visit.

Conine and Hart drove in the direction of the trash dump, which is located near one of the marijuana patches. Hart exited the truck to open the gate to the dump and stayed there until Conine finished dumping some trash. 2

Around August 24, O'Brien and Starnes drafted a search and arrest warrant and two supporting affidavits, both signed by O'Brien. The affidavits contained information on the activities the officers saw. The warrant, as signed by the state district judge, commands the appropriate law enforcement officers "to enter the suspected place and premises described in [the attached] Affidavit and to there search for the property described in said Affidavit and bring it before me and persons described in said Affidavit and arrest them and bring them before me." In the first affidavit, the "property to be searched" included Conine's trailer and barn, a vacant white-frame house, "a single-family, white frame residence with black trim and shutters," various outbuildings, and a number of cars (hereinafter "the property"). Hart lived in the white house with black trim and shutters, although the affidavit did not say so. The affidavit did refer to two of the cars "on the property" as being registered to Hart. The affidavit also noted that the property was controlled by Conine and "[a]n unknown white female, approx. 5'6" tall with brown hair and medium build." The affidavit "charges and accuses" Conine and the unknown white female of possessing marijuana.

The second affidavit contained the facts allegedly supporting probable cause. This affidavit repeats the information about the white house with black trim and shutters and the two cars registered to Hart. The only other reference to Hart is the following:

During the almost continuous surveillance on Conine's property, affiant observed Conine enter and leave the property on numerous occasions. On several of those occasions, Conine and/or an unknown, white female with light brown hair who is residing at the mobile home, has stopped by the white frame house with black trim and shutters, entered the residence and returned a short time later. The unknown, white female has been seen by Affiant driving a blue Buick, registered to a Peggy Hart. Peggy Hart is married to Stanley Hart, who according to [Drug Task Force ("DTF") ] files, is a known marihuana cultivator in Red River County, Texas.

This paragraph contains at least two pieces of inaccurate information. First, Hart did not reside at the mobile home, though she did stay over on several occasions. Rather, she lived in the adjacent white frame house with black trim. Second, Hart was not married to Stanley Hart. Instead, a different Peggy Hart was married to Stanley Hart. The officers claim that the first piece of information came from their surveillance of the property. Starnes admits that he helped prepare the affidavit 3 and that he gave the second piece of information to O'Brien for inclusion in the affidavit.

O'Brien swore and subscribed to the affidavit. Based on this affidavit, a state district judge signed the search and arrest warrant on August 24. The next day, a team of law enforcement officers (Motley and Myrick among them), led by O'Brien and Montana, converged on the property to execute the search and arrest warrant. Starnes accompanied them. Starnes concedes that, after he saw Hart, he realized that she was not the Peggy Hart married to Stanley Hart, and that the affidavit was partially based on erroneous information. However, he did not attempt to halt the execution of the warrant.

There was some debate about whether Hart, after being arrested, should be left behind to care for Conine's animals. Nonetheless, O'Brien and Montana executed the warrant; they instructed Myrick to arrest Hart and Motley to take her to jail. The officers also arrested Conine and took him to jail. During the search of the property, the officers seized a number of items, including 1,132 live marijuana plants. 4 While executing the search warrant, the officers found drugs and drug paraphernalia in Conine's trailer, including two baggies of marijuana, two bongs, the butt of a marijuana cigarette in an ashtray, firearms, ammunition, and $19,000 in cash. In addition, officers found cocaine in Conine's barn and a bag of marijuana seeds inside a shed adjacent to his property. The only objects seized that have been identified specifically as Hart's were some personal papers found in a storage shed on Conine's property. Conine subsequently pled guilty to a drug charge and is now incarcerated. See generally United States v. Conine, 33 F.3d 467 (5th Cir.1994).

After Motley took Hart to jail, he filed a criminal complaint against her, charging her with possession of marijuana with intent to deliver and writing the words "federal hold" on the document. According to Motley's deposition testimony, Starnes, O'Brien, Montana, and Myrick had previously discussed putting Hart on federal hold, and Motley did so, pursuant to O'Brien's instructions. Hart was given a hearing before a state magistrate judge on the charge in the complaint. At the hearing, the magistrate was supposed to determine, among other things, whether probable cause existed for...

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