Winfrey v. Rogers

• Decision Date: 05 February 2018
• Docket Number: No. 16-20702,16-20702
• Citation: 882 F.3d 187
• Parties: Richard WINFREY, Jr., Plaintiff-Appellant v. Lacy ROGERS, Former San Jacinto County Sheriff; Lenard Johnson, Former San Jacinto County Sheriff's Department Deputy, Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

882 F.3d 187

Richard WINFREY, Jr., Plaintiff-Appellant
v.
Lacy ROGERS, Former San Jacinto County Sheriff; Lenard Johnson, Former San Jacinto County Sheriff's Department Deputy, Defendants-Appellees

No. 16-20702

United States Court of Appeals, Fifth Circuit.

Filed February 5, 2018

Elizabeth Wang, Esq., Loevy & Loevy, Boulder, CO, for Plaintiff–Appellant.

William S. Helfand, Norman Ray Giles, Lewis, Brisbois, Bisgaard & Smith, L.L.P., Houston, TX, for Defendants–Appellees.

Before JOLLY and ELROD, Circuit Judges, and RODRIGUEZ, District Judge.^*

E. GRADY JOLLY, Circuit Judge

Richard Winfrey Jr. ("Junior") was arrested and charged with murder after a botched investigation and various alleged violations of Junior's Fourth Amendment rights. The State tried him on murder charges. The jury acquitted him in fifteen minutes, but only after he had served some 16 months in prison. He brought this 42 U.S.C. § 1983 action against various officers of San Jacinto County, Texas. After some seven years of litigation—including one appearance before this Court, see Winfrey v. San Jacinto Cty. , 481 Fed.Appx. 969 (5th Cir. 2012) ( Winfrey I )—defendants have come and gone, leaving only the defendant Deputy Sheriff Lenard Johnson to answer for Junior's charges of constitutional violations. Junior claims that Deputy Johnson violated his rights by signing an arrest-warrant affidavit that lacked probable cause by omitting and misstating key facts. This unconstitutional warrant, he alleged, resulted in his unlawful arrest and imprisonment. Johnson moved for summary judgment on the basis of qualified immunity. The district court granted Johnson's motion, and Junior appeals.

We VACATE the district court's judgment and REMAND for trial essentially on the factual issue of whether Johnson acted recklessly, knowingly, or intentionally by omitting and misrepresenting material facts in his affidavit when seeking an arrest warrant for Junior. Because this litigation has continued for over seven years, including two appeals before this Court, we emphasize that this case must go to trial without further delay.

I.

Murray Wayne Burr was found murdered in his home in San Jacinto County, Texas, in August 2004. The San Jacinto County Sheriff's Office—including Sheriff Lacy Rogers and Deputy Johnson—and the Texas Rangers focused their investigation on three suspects: then-seventeen-year-old Junior; his then-sixteen-year-old sister, Megan Winfrey; and their father, Richard Winfrey, Sr. ("Senior").

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Several weeks after the murder, the investigative blunders began. Texas Ranger Grover Huff requested that Keith Pikett, a deputy from a nearby law enforcement agency, assist the investigation by running "scent lineups." This dubious adventure required Pikett to call upon two of his pet bloodhounds and to acquire scents from four suspects—Megan; Junior; Megan's boyfriend, Chris Hammond; and Hammond's friend, Adam Szarf. Huff, then, following the procedure that Pikett established, gathered scents from the suspects—by asking each person to rub a piece of gauze on his or her skin and put that gauze in a paper bag—and from the victim—by rubbing gauze against Burr's clothes. Pikett, rather "unscientifically," also carried around in a duffel bag filler scents which he gathered from prisoners at the Fort Bend County Jail. He placed this bag in his SUV, in which his dogs rode daily.

Pikett proceeded to conduct a "drop-trail" exercise with his dogs. That exercise was conducted at the crime scene where Huff provided the hounds with a scent sample. Huff thought he had provided the scent for Junior, but he mistakenly scented the dogs for Hammond instead. Huff notified Pikett and the other investigators about the mistake after the test, and both Huff and Pikett mentioned it in their formal police reports.

Meanwhile, Junior and Megan allowed investigators to collect their DNA to compare with DNA found in blood discovered at Burr's home. The laboratory reported that the blood did not belong to either. The investigators also wanted to compare Megan's hair to hair found at the murder scene. Sheriff Rogers wrote a search-warrant affidavit to obtain Megan's hair, but he failed to mention the lab report showing her blood was not at the scene. He also misstated that the drop-trail was conducted using Junior's scent pad instead of Hammond's. Further, he did not acknowledge the incidental fact that all forensic evidence from the crime scene excluded the Winfreys. Perhaps recognizing the fumbles in the process, the investigation was put on hold.

After stalling for a year, the investigation restarted when a jailhouse informant, Campbell, came forward with a story incriminating the Winfreys in Burr's murder. Campbell said that while he and Senior were in the same jail cell, Senior confessed to murdering Burr. Johnson visited and interviewed Campbell. There, Campbell told him: (1) Megan and Junior helped Senior get into Burr's house, (2) Senior severely beat up Burr and cut his neck, (3) Senior cut off Burr's genitals and stuck them in Burr's mouth, (4) Junior and Megan were in Burr's house the whole time, and (5) Senior had wanted to kill Burr because Burr's neighbor told Senior that Burr touched one of Senior's kids. Johnson wrote a report of Campbell's story and noted that the details of the injuries were generally accurate in relation to the physical evidence, except that Burr's genitals were not cut off and put in his mouth.

Johnson visited Campbell a month later, taking Rogers with him. Campbell's story changed. First, Campbell added that Burr was killed in his living room, which Johnson said was not known to the public at that time. Second, he said that Senior stabbed and shot Burr, though there was no evidence that Burr was shot. Third, Campbell now claimed that one of Senior's cousins, not Junior or Megan, was the accomplice to the murder. Finally, Campbell said that Senior confessed to stealing a pistol and long gun from Burr's house, and he put these guns in a nearby "hollow." Investigators found a hollow matching the description, but no weapons were

882 F.3d 194

there. Johnson said the public did not know about the stolen weapons.

Pikett, undeterred by earlier failures, conducted a second scent lineup using Senior's scent. The bloodhounds alerted each time on Senior's scent.

Deputy Sheriff Johnson signed two affidavits to obtain search warrants to obtain Junior's and Senior's hair from each of them to compare with the hair found in Burr's home. Each affidavit excluded any reference to: (1) the inconsistencies between Campbell's two interviews, (2) the inconsistencies between Campbell's statements and the other evidence, (3) Junior's and Megan's blood not being found at the scene, and (4) the hair found at the scene not matching Burr or Megan. The judge issued both warrants to Johnson, but the hair obtained from Burr's home did not match the hair of either Junior or Senior.

Nevertheless, Johnson signed affidavits for arrest warrants for Megan, Junior, and Senior.¹ The arrest-warrant affidavits also excluded the same inconsistencies as the search-warrant affidavits, and additionally omitted the fact that the hairs at the crime scene did not belong either to the Winfreys or Burr.

Junior was thus charged with capital murder and sat in jail for two years before his case was tried in June 2009. On June 12, he was found not guilty after thirteen minutes of jury deliberation.

On May 26, 2010, Junior filed this § 1983 lawsuit against every police investigator involved in his murder case. At this point in this lengthy litigation, only his claim against Deputy Sheriff Johnson remains. Junior says that Johnson violated his constitutional rights by using false information to secure arrest and search warrants and by failing to disclose exculpatory evidence.

This case has visited us before. See generally Winfrey I , 481 Fed.Appx. 969. There, we vacated the district court's grant of summary judgment in favor of Johnson and remanded for additional discovery on whether Johnson violated the Fourth Amendment by acting with reckless disregard for the truth, as opposed to merely carelessness or negligence, when he included a material falsehood and omitted material information in his warrant affidavits. Id. at 979–81.

On remand, the district court held a hearing relating to multiple Daubert motions. Junior contends that, at that hearing, the district court barred Junior's expert, David Kunkle, from testifying at trial.

After discovery concluded, Johnson again moved for summary judgment. First, Johnson argued that Junior's claim against Johnson was time-barred. But the district

882 F.3d 195

court ruled that it was not barred because the statute of limitations period began when Junior was acquitted, and he filed his lawsuit within a year of his acquittal. Second, the court examined whether Johnson violated Junior's Fourth Amendment rights by recklessly omitting and misstating certain facts in his search- and arrest-warrant affidavits. The court found that one omission was not reckless: excluding Campbell's statements that were inconsistent with each other. But it found that others were reckless: excluding Campbell's statements that were contradicted by...