884 F.2d 804 (5th Cir. 1989), 88-2049, Crowder v. Sinyard

Docket Nº:88-2049, 87-2455.
Citation:884 F.2d 804
Party Name:Nancy CROWDER, Individually and as Independent Executrix of the Estate of James Ralston Crowder, Plaintiff-Appellee, Cross-Appellant, v. Ken SINYARD, et al., Defendants-Appellants, Cross-Appellees. Nancy CROWDER, Individually and as Independent Executrix of the Estate of James Ralston Crowder, Plaintiff, v. Ken SINYARD, et al., Defendants-Appellees
Case Date:September 21, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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884 F.2d 804 (5th Cir. 1989)

Nancy CROWDER, Individually and as Independent Executrix of

the Estate of James Ralston Crowder,

Plaintiff-Appellee, Cross-Appellant,


Ken SINYARD, et al., Defendants-Appellants, Cross-Appellees.

Nancy CROWDER, Individually and as Independent Executrix of

the Estate of James Ralston Crowder, Plaintiff,


Ken SINYARD, et al., Defendants-Appellees,


Winston P. CROWDER, Appellant.

Nos. 88-2049, 87-2455.

United States Court of Appeals, Fifth Circuit

September 21, 1989

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Margaret R. Mitchell, Winston P. Crowder, Houston, Tex., for defendants-appellants, cross-appellees.

Bill Luppen, Asst. Atty. Gen., Little Rock, Ark., for Neel and Lambert.

Kirk D. Johnson, W. Kelvin Wyrick, Texarkana, Ark., for Miller Co., Ark. and Godwin.

Damon Young, Texarkana, Ark., for City of DeQueen, Ark. and Bill Jones.

David Folsom, Texarkana, Ark., Tex., for Sevier County.

William G. Bullock, Texarkana, Tex., for Aycock, et al.

William G. Bullock, Hubbard, Patton, Peek, Haltom & Roberts, Damon Young, David Folsom, Young, Patton & Folsom, Texarkana, Tex., Kirk D. Johnson, Texarkana, Ark., for all appellants except Lambert.

Frank J. Wills, III, J. Mark Lewis, Asst. Attys. Gen., Little Rock, Ark., for Charles Lambert.

Mary L. Sinderson, Lynn Cooksey, Houston, Tex., for appellees.

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

Before GARWOOD, JONES, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The primary issue in these consolidated appeals is whether the actions of various law enforcement officers and prosecutors in executing a search warrant and seizing certain pieces of personal property violated the Crowders' 1 first, fourth, and fourteenth amendment rights. After a jury trial, the district court rendered judgment in favor of the Crowders and awarded attorneys' fees.

These appeals followed. In No. 88-2049, all of the defendants that were held liable appeal from the judgment; as to that appeal, we vacate and remand. The Crowders cross-appeal on the ground that the district court erred by granting a judgment notwithstanding the verdict in favor of one of the governmental defendants; as to that cross-appeal, we affirm. In No. 87-2455, one of the Crowders' attorneys appeals, arguing that the district court erred in rejecting much of his claim for attorneys' fees. We dismiss that appeal as moot.



In the course of investigating a series of burglaries in southwest Arkansas in December 1980 and January 1981, law enforcement officials from Sevier County, Arkansas, and the City of DeQueen, Arkansas, a city in Sevier County, apprehended Terry Broyles in DeQueen. On the morning of January 27, 1981, Sevier County Sheriff David Godwin and DeQueen Chief of Police Bill Jones took Broyles to the Arkansas State Police Headquarters in Hope, Arkansas, for a polygraph examination.

While they were there, Godwin spoke with H.L. Phillips, a Miller County, Arkansas, Deputy Sheriff, who told him that a number of similar burglaries had occurred in Miller County. Phillips asked for, and received, permission to speak with Broyles, who implicated one Jay Wilson as the perpetrator of the Miller County burglaries. Phillips also indicated that Wilson

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had a relative named J.R. (Jimmy) Bradshaw who was involved in the burglaries.

After the officers learned that Bradshaw was already in custody in Texarkana, Texas, on unrelated charges, the three officers decided to continue their investigation by taking Broyles to Texarkana, about thirty miles from Hope. Two other Arkansas officials--Charles Lambert, an Arkansas State Police investigator who had been assisting the Miller and Sevier County Sheriff's Offices in investigating the burglaries, and State Trooper R.W. Neal--also decided to go to Texarkana.

That same day, the officers--Godwin, Jones, Phillips, Charles Lambert, and Neal--all met at the Texarkana, Texas, Police Department Criminal Investigation Division (CID) headquarters at about 5:00 p.m. While the other four officials questioned Bradshaw, Jones took Broyles to Miller County for separate questioning by Miller County Deputy Sheriff Allen Jordan. Both men told similar stories, indicating that they had burglarized residences in Miller, Sevier, and Pike Counties in Arkansas and, on numerous occasions and under questionable circumstances, had sold stolen jewelry and silverware to James Ralston Crowder at the J.R. Crowder Insurance Agency in Texarkana, Texas.

On the basis of this information, Sgt. Gary Adams, the ranking on-duty officer of the Texarkana, Texas, CID, determined that probable cause existed to search the insurance agency for such stolen property. Adams contacted the Bowie County, Texas, Criminal District Attorney's Office and asked it to review his determination and assist in preparing an affidavit for a search warrant. Bowie County District Attorney Louis Raffaelli told Assistant District Attorney James Elliott to go to CID headquarters to assist Adams.

Elliott arrived at CID headquarters at about 9:00 p.m. After speaking with Adams and the other officers, and personally confirming with Broyles and Bradshaw what they had told the officers, Elliott concluded that there was probable cause only to search Crowder's office for those stolen items most recently sold to Crowder, as only those items would still likely be on the premises.

Elliott then drafted an affidavit, to be signed by Phillips, for a search warrant. The affidavit was based primarily upon information obtained from Broyles regarding two robberies that had occurred in the preceding week; it listed five items to be searched for and seized. 2 After reviewing

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the signed affidavit, a magistrate executed a form warrant authorizing a search of the agency for the specified items and the arrest of Crowder. 3

Adams, accompanied by Detective Louis Aycock of the Texarkana, Texas, CID and the two suspects (Bradshaw and Broyles), drove to Crowder's home to obtain his assistance in gaining entry to his office. After Crowder identified Bradshaw and Broyles as persons with whom he had done business, he complied with the officers' request or instruction that he accompany them to the insurance agency for the execution of the search warrant.

Crowder, Adams, and Aycock entered the insurance agency at approximately 11:30 p.m. Shortly thereafter, and at Adams's request or invitation, they were joined by all of the following Arkansas officers: Miller County Sheriff Ken Sinyard, Jordan, Phillips, Godwin, Jones, Charles Lambert, and Neal. 4 Raffaelli and Elliott, who went to the agency but did not enter it at this time, remained in a parked car for a short while and then left to perform a personal errand.

A three-hour search of the agency ensued. After being informed, at least partially, of the items mentioned in the warrant, Crowder went to his desk and pulled out a sheet of paper resembling the document described in the affidavit. At various officers' request or instruction, Crowder opened several heavy, locked file cabinets, from which the officers collected jewelry, coins, and other items; various officers also searched for and seized items found in several desks and a footlocker. At one point or another, each of the officers participated in the search and seizure by looking into the file cabinets, the footlocker, or the desks and inspecting the objects in the room. 5 Four of the seized items were described in the search warrant, but most were not. Rather, the officers testified that they seized the items because they matched the description of items taken in other burglaries in Sevier and Miller Counties. 6

Ultimately, forty-six untagged items were deposited in a sack and removed to CID headquarters. The search ended abruptly when, at approximately 2:30 a.m.,

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Crowder's attorney arrived at the agency in the company of a private investigator with a video camera. The attorney began to ask questions regarding the search and seizure and disposition of the untagged items. All of the officers quickly left the premises; Raffaelli and Elliott stayed on the scene long enough to inform the attorney that any questions he had could be raised at a judicial hearing the next day, as provided in the Texas Code of Criminal Procedure.

Back at CID, Phillips and Aycock inventoried the seized property. Pursuant to Sinyard's request, Aycock, after consulting with Raffaelli, agreed to release the property to Miller County officials. Early that morning, Phillips signed a receipt for the property and took it to Miller County.


On or about February 1, 1981, Crowder filed a petition in Texas state court against Raffaelli, Elliott, Donald Lambert, Aycock, and "other persons unknown." Crowder sought to have the court order the defendants to deposit the seized property into the registry of the court pending a determination of the legality of the search and seizure and of Crowder's entitlement to the property. After a hearing, the court issued such an order. The defendants appealed the order to a Texas intermediate appellate court, which dismissed the appeal on the ground that it lacked jurisdiction to hear an appeal from an order that only compelled a party to place property into the registry.

In an attempt to comply with the court's order, the Texas officials--Raffaelli, Elliott, and Aycock--contacted the Miller County Sheriff's Office and requested the return of the property. However, acting under legal advice, Miller County officials refused to comply. Moreover, as Crowder had failed to join the Miller County...

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