Curtis v. W. Anthony, 030613 FED5, 11-20906

Docket Nº:11-20906
Opinion Judge:PER CURIAM
Party Name:RONALD CURTIS; CEDRIC JOHNSON; CURVIS BICKHAM, Plaintiffs-Appellants, v. W. ANTHONY, Houston Police Department Sergeant; R. CHAPPELL, Houston Police Department Officer; C. W. STIVERS, Houston Police Department Officer; UNKNOWN HOUSTON POLICE DEPARTMENT EMPLOYEES; CITY OF HOUSTON; MILTON WRIGHT, Fort Bend County Sheriff; KEITH PIKETT, Former Fort Be
Judge Panel:Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.
Case Date:March 06, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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RONALD CURTIS; CEDRIC JOHNSON; CURVIS BICKHAM, Plaintiffs-Appellants,

v.

W. ANTHONY, Houston Police Department Sergeant; R. CHAPPELL, Houston Police Department Officer; C. W. STIVERS, Houston Police Department Officer; UNKNOWN HOUSTON POLICE DEPARTMENT EMPLOYEES; CITY OF HOUSTON; MILTON WRIGHT, Fort Bend County Sheriff; KEITH PIKETT, Former Fort Bend County Sheriff's Department Deputy; UNKNOWN FORT BEND COUNTY EMPLOYEES; FORT BEND COUNTY, Defendants-Appellees.

No. 11-20906

United States Court of Appeals, Fifth Circuit

March 6, 2013

REVISED MARCH 25, 2013

Appeal from the United States District Court for the Southern District of Texas

Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.

PER CURIAM

Plaintiffs-Appellants, Ronald Curtis, Cedric Johnson, and Curvis Bickham (collectively, "Appellants") appeal the district court's grant of summary judgment on their claims under 42 U.S.C. § 1983 in favor of Defendants-Appellees: (i) W. Anthony, a sergeant in the Houston Police Department ("HPD"); (ii)R.Chappell, an officer in the HPD; (iii) C. W. Stivers, an officer in the HPD; (iv) the City of Houston; (v) Milton Wright, the Sheriff of Fort Bend County, Texas; (vi) Keith Pikett, a former deputy in the Fort Bend County Sheriff's Department; and (vii) Fort Bend County (collectively, "Appellees").1 For the reasons provided below, we AFFIRM the district court's judgment.

I. Background on Dog-Scent Lineups

Appellants challenge Appellees' reliance on "dog-scent lineups, " which Pikett conducted and which the municipalities used to arrest, charge, and hold Appellants.

A. Pikett's Procedures

To conduct his lineups, Pikett made use of scent-discriminating bloodhounds. First, Pikett would obtain a scent sample from the suspect under investigation by wiping the suspect with a sterile gauze pad. The gauze pad, containing the suspect's "human scent" and "skin cells, " would be stored in a Ziploc bag until the time of the lineup.

At the time of the lineup, a second officer would arrange six cans, one containing the suspect's scent pad and the other five containing scent pads from other persons of the same gender and race. The officer would arrange the cans approximately ten feet apart and positioned perpendicular to the wind so as to minimize the crossing of scents.

Thereafter, Pikett would expose a bloodhound to a scent sample taken from the crime scene. The trained bloodhound would "alert" if the scent pad from any of the six cans matched the crime scene sample. Pikett would repeat the exercise with a second bloodhound to confirm the first bloodhound's alert.

2. Pikett's Connection to the HPD

Although Pikett was a deputy with the Fort Bend County Sheriff's Department, he volunteered his services to the HPD.

3. Texas Caselaw Concerning the Use of Dog-Scent Lineups

Texas state jurisprudence concerning the use of dog-scent lineups has evolved over the past decade. However, at the time of the events at issue in this case, approximately 2007 to 2009, the Texas courts uniformly had accepted Pikett as an expert on dog-scent lineups. Furthermore, the Texas courts uniformly had accepted the results of his lineups as inculpatory evidence in criminal proceedings.

The following is a representative timeline of recent Texas cases concerning the use of dog-scent lineups. Each of these cases personally involved Pikett:

(i) Winston v. State, 78 S.W.3d 522, 527 (Tex. App. 2002) (concluding that the use of dog-scent lineups is a "legitimate field of expertise");

(ii) Robinson v. State, No. 09-06-51-CR, 2006 WL 3438076, at *4 (Tex. App. Nov. 29, 2006) (unpublished) (applying Winston to reach the same conclusion);

(iii) Winfrey v. State, 323 S.W.3d 875, 884-85 (Tex. Crim. App. 2010) (holding that inculpatory evidence obtained from dog-scent lineups "may raise a strong suspicion of . . . guilt, " but "is merely supportive" and, "when used alone or as primary evidence, [is] legally insufficient to support a conviction");2

(iv) State v. Smith, 335 S.W.3d 706, 712 (Tex. App. 2011) (affirming the trial court's finding that the state had failed to establish the reliability of Pikett's dog-scent lineups, but declining to reach whether the use of such lineups remains a legitimate area of expertise in light of Winfrey v. State); and

(v) Powell v. State, No. 14-09-398-CR, 2011 WL 1579734, at *2 n.2, 3 (Tex. App. Apr. 21, 2011) (unpublished) (affirming the trial court's finding that Pikett's dog-scent lineups were reliable with respect to the "procedures employed in this particular case, " and noting that the appellant had not challenged the facial legitimacy of dog-scent lineups).

II. Background on Winfrey v. San Jacinto County

On July 27, 2012, this Court issued a decision in Winfrey v. San Jacinto County, No. 11-20555, 2012 WL 3062159 (5th Cir. Jul. 27, 2012) (unpublished), which resolved legal issues that directly parallel those raised in this appeal and which addressed much of the same evidence.3 In Winfrey, the plaintiff, who was represented by the same counsel as the Appellants here, brought a similar action under 42 U.S.C. § 1983 pertaining to a dog-scent lineup conducted by Pikett. The Winfrey plaintiffs sued Fort Bend County; Pikett; and Wright; as well as San Jacinto County, Texas; various San Jacinto County officers; and various Texas Rangers.

As in the instant case, the plaintiffs argued that (i) Pikett's dog-scent lineups were a fraud; (ii) the other individual defendants knew it, and either actively conspired with Pikett or failed to intervene; and (iii) the municipal defendants had failed to establish policies to monitor the use of the lineups for fraud and unreliability. As in the instant case, the individual defendants asserted qualified immunity defenses. The municipal defendants argued that there was no obligation to establish a policy to monitor the lineups, and that the absence of such a policy would have created liability only if the municipalities had failed to establish one specifically to evade liability.

The same district court judge as in the instant case granted summary judgment to all defendants. As in the instant case, the district court denied the plaintiffs' request for supplemental discovery pursuant to Federal Rule of Civil Procedure ("FRCP") 56(d).

On appeal, the Winfrey panel reversed summary judgment as to the San Jacinto County officers, citing, inter alia, a factual dispute over whether the officers had acted recklessly by submitting search and arrest warrant affidavits containing false statements and material omissions. It also reversed summary judgment as to Pikett, citing a factual dispute over whether a videotape of the dog-scent lineup at issue demonstrated that Pikett had manipulated his bloodhounds to cue false alerts during the lineups. The panel affirmed summary judgmentas to the remaining defendants on qualified immunity grounds and for failure to establish municipal liability.

III. Background on the Instant Case

A. Facts Pertaining to Curtis

A T-Mobile store in Harris County, Texas was burglarized in June 2007. The perpetrator had pried open the store's back door and left mud at the store's entrance.

The HPD responded, and officers spotted Curtis and a passenger in a car near the store. Curtis had a lengthy criminal record.

In the car, the officers spotted a crowbar, a sledge hammer, a bolt cutter, and two tire irons. Markings on the store's back door matched markings on the crow bar. While the officers checked the driver's licenses of Curtis and the passenger, they noticed that someone had moved the crowbar from the car's center console to under the rear floorboard.

Both Curtis and the passenger were wearing muddy shoes. Additionally, the officers spotted two unopened T-Mobile phones and an unopened T-Mobile battery in the car.

Curtis and the passenger provided conflicting accounts to the HPD officers. At first, Curtis stated that the tools found in the car were his, and that he and the passenger had been using them to perform car maintenance work before stopping to eat at a restaurant next to the T-Mobile store. Later, Curtis denied that he owned the tools. At first, the passenger stated that he and Curtis had been at the store because Curtis had driven the passenger to the store to pay his T-Mobile bill. Later, the passenger stated that, after Curtis had driven him to the T-Mobile store, Curtis had attempted to break into the store using the crowbar.

The HPD officers arrested Curtis and the passenger. However, the officers released them the same day after the magistrate judge found that there was insufficient probable cause to hold them.

Stivers had been investigating a string of burglaries involving two other T-Mobile stores within the vicinity. Upon learning of Curtis's arrest, Stivers compared Curtis's driver's license photo with a still photo from a surveillance video of another T-Mobile store burglary. He determined that the photos matched.

Notwithstanding the above, a wallet, fingerprints, and blood left at one of the burglary scenes did not match Curtis. Therefore, Stivers approached Pikett to conduct a dog-scent lineup. Pikett had conducted lineups for Stivers in two prior cases.

After Curtis refused to provide a voluntary scent sample, Stivers obtained one by subpoena. Pikett used his dogs to compare Curtis's scent with scent samples taken from the three burglarized stores. Stivers obtained these scent samples weeks and, in some cases, months after the times of the burglaries.

Accordingly, the burglarized stores had experienced routine cleanings and customer traffic between the times of the burglaries and the times that Stivers obtained the...

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