New v. Denver

• Decision Date: 29 May 2015
• Docket Number: No. 13–3330.,13–3330.
• Citation: 787 F.3d 895
• Parties: David Allen NEW, Plaintiff–Appellee v. Dale DENVER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

787 F.3d 895

David Allen NEW, Plaintiff–Appellee

v.Dale DENVER, Defendant–Appellant.

No. 13–3330.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 16, 2015.

Filed: May 29, 2015.

Jason E Owens, argued, Geoffrey Thompson and Michael R. Rainwater, on the brief, Little Rock, AR, for appellant.

Jo Alison Lee, of Rogers, argued, Norman Douglas Norwood, on the brief, Rogers, AR, for appellee.

Before LOKEN, MELLOY, and GRUENDER, Circuit Judges.

Opinion

LOKEN, Circuit Judge.

Patrol Sergeant Dale Denver of the Benton County Sheriff's Office arrested David New in September 2009 for possession of marijuana after two leaves were found during a consensual search of New's car following a traffic stop. When the Arkansas State Crime Laboratory tested the leaves and reported they did not contain detectible amounts of Tetrahydrocannabinol (“THC”), the prosecutor dropped a criminal charge that New violated Ark.Code § 5–64–401 (repealed in 2011). New commenced this 42 U.S.C. § 1983 action against Denver, alleging he was arrested without probable cause in violation of the Fourth and Fourteenth Amendments.

Denver moved for summary judgment on the merits and based on qualified immunity. The district court denied the motion, concluding that, at the summary judgment stage, the court could not make “a credibility determination crediting Mr. Denver's assertions as true in the face of contrary evidence—a negative lab result and the contrary averments of Mr. New.” Denver appeals, arguing the undisputed material facts establish he is entitled to qualified immunity as a matter of law. “[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We agree with Denver's contention and therefore reverse.

I.

Sheriff's Deputy Kurt Banta stopped New's vehicle for speeding shortly after 8:00 a.m. on a Saturday morning. Banta learned that New and his passenger, New's brother Michael, had prior arrests for marijuana possession. Though claiming to be in a hurry, New gave Banta consent to search the vehicle. Deputy Santos arrived as back-up and waited with the News outside the car while Banta began his search on the passenger side of the front seat. New told Santos there was a knife in the console, which Banta had already found. Supervisor Denver, patrolling in the area, went to the scene and joined Banta, searching from the driver's side of the vehicle. Denver found a dried and curled leaf he identified as marijuana between the driver's seat and the door frame. He advised Banta this was now a probable cause search, and the two searched more aggressively. They found a second leaf on the floor almost under the driver's seat. Denver placed the leaves in a brown sack, arrested David New for possession of marijuana, and submitted the leaves to the crime lab for testing. The lab reported, “no controlled substances detected.” This lawsuit followed. The two leaves are not part of the summary judgment record.

At his deposition, Denver testified that he had worked for the Sheriff's Office for twenty years and had substantial training and experience in drug interdiction, including serving two years as handler of a drug detection canine. Denver described the two leaves as green with fingers and testified he was “absolutely convinced” they were leaves from one or more marijuana plants, even if they did not test positive for the controlled substance THC. New testified, with equal adamance, that the leaves were not marijuana because he and his brother did not “have marijuana on the property” they had left that morning. New only briefly saw a “finger of a leaf over the corner of this brown paper sack that [Denver] had put them in.” He did not recall if the finger came to a point and had only previously seen a marijuana leaf on television. Michael New testified he did not see the leaves but believed they were not marijuana. He recalled that the brothers had tracked wet leaves into the car from their wooded property that morning. By affidavit, the crime lab's forensic chemist averred that, in the absence of THC, the leaves “did not meet criteria to be a positive [marijuana] sample.” However, she noted, “there are many variables as to why [marijuana] leaves may not test positive for THC,” and the two leaves had “cystolithic hairs, which are found on but not unique to a [marijuana] leaf.”

II.

Qualified immunity shields a government official from liability unless his conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity “gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (quotation omitted). “Immunity ordinarily should be decided by the court long before trial.” Id. at 228, 112 S.Ct. 534. We review de novo the district court's denial of summary judgment based on qualified immunity.

The Fourth Amendment protects against a warrantless arrest by an officer who lacks probable cause. In a § 1983 action alleging violation of that right, qualified immunity applies when “a reasonable officer could have believed [the] arrest to be lawful, in light of clearly established law and the information the arresting officer[ ] possessed.” Id. at 227, 112 S.Ct. 534 (emphasis added). “[T]he issue for immunity purposes is not probable cause in fact but arguable probable cause, that is, whether the officer should have known that the arrest violated plaintiff's clearly established right.” Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir.) (quotation omitted), cert. denied, 519 U.S. 1011, 117 S.Ct. 518, 136 L.Ed.2d 407 (1996). When an arrest is for possession of a controlled substance, such as marijuana, probable cause “merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband.” Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion) (quotation omitted). Thus, a police officer can have probable cause to seize what appears to be a controlled substance that is later determined to be something else. See, e.g., Waltman v. Payne, 535 F.3d 342, 347–48 (5th Cir.2008) ; Ochana v. Flores, 347 F.3d 266, 271–72 (7th Cir.2003).

A. “When there is no dispute among the parties as to the relevant facts ... a court should always be able to determine as a matter of law whether or not an officer is eligible for qualified immunity.” Pace v. City of Des Moines, 201 F.3d 1050, 1056 (8th Cir.2000). However, if a public official's qualified immunity as well as his Fourth Amendment liability turn on genuine issues of material fact, rather than on an issue of law, we lack appellate jurisdiction because the decision denying qualified immunity is not an immediately appealable collateral order. See Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) ; Aaron v. Shelley, 624 F.3d 882, 884 (8th Cir.2010). New argues we lack jurisdiction in this case because the district court's ruling was based upon a genuine issue of material fact, “whether Mr. Denver truly made an honest or objectively reasonable mistake in believing the leaves to be marijuana.” On the unique facts presented, this threshold issue requires close scrutiny.

Whether an officer is entitled to qualified immunity because he “acted reasonably under settled law in the circumstances” is a question of law for the court, both before and after trial. Hunter, 502 U.S. at 228, 112 S.Ct. 534. Predicate facts that will defeat summary judgment based on qualified immunity “include only the relevant circumstances and the acts of the parties themselves, and not the conclusions of others about the reasonableness of those actions.”Pace, 201 F.3d at 1056 ; see Levan v. George, 604 F.3d 366, 369 (7th Cir.2010) (“Even if the undisputed facts showed that the officers had made a reasonable error when they arrested [plaintiff], qualified immunity would be available, though not a judgment on the merits.”). For example, in Aaron v. Shelley, we dismissed an appeal from the denial of qualified immunity for lack of jurisdiction because the officers' investigation leading up to the plaintiff's arrest was “clouded by material fact disputes.” 624 F.3d at 883. In that case, what the officers learned from multiple witnesses before they arrested Aaron required a trial because the material facts were disputed and, viewed most favorably to plaintiff Aaron, “would permit a reasonable jury to find that the officers lacked objectively reasonable probable cause to arrest.” Id. at 884.

In this case the critical jurisdictional issue is whether any disputed facts are material to the question whether Sgt. Denver could reasonably have believed he had probable cause to arrest David New for unlawful possession of marijuana. The district court concluded that Sgt. Denver's “credibility” was a disputed issue of material fact “in the face of contrary evidence—a negative lab result and the contrary averments of Mr. New.” Here, the court's reference to credibility is logical and highlights the unusual nature of the issue. The Supreme Court has repeatedly emphasized “that an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). Thus, the Court has held, an arrest that is based upon sufficient probable cause does not violate the Fourth Amendment because the arresting officer did not correctly identify the law being violated, or because he made a pretextual...