Waltman v. Payne

• Decision Date: 10 July 2008
• Docket Number: No. 05-60588.,05-60588.
• Citation: 535 F.3d 342
• Parties: Marion WALTMAN, Plaintiff-Appellant, v. George PAYNE, in both his official and individual capacities, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

535 F.3d 342

Marion WALTMAN, Plaintiff-Appellant, v. George PAYNE, in both his official and individual capacities, Defendant-Appellee.

No. 05-60588.

United States Court of Appeals, Fifth Circuit.

July 10, 2008.

Chester D. Nicholson (argued), Nicholson & Nicholson, Gulfport, MS, for Waltman.

Cyril T. Faneca, Jr., Trace Dene McRaney (argued), Haley N. Broom, Dukes, Dukes, Keating & Faneca, Gulfport, MS, for Payne.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GARWOOD, DENNIS and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Marion Waltman sued Sheriff George Payne, Jr. in his individual and official capacities for the destruction of 500 kenaf plants—a plant that closely resembles marijuana—on Waltman's hunting lease. The district court granted Payne qualified immunity in his individual capacity, held that Waltman's Fifth Amendment takings claim was not ripe, and granted Payne summary judgment on the claims in his official capacity. We affirm in part, and we vacate and dismiss without prejudice in part.

I

Marion Waltman held a hunting lease on approximately 1500 acres in Harrison County, Mississippi. He purchased kenaf seed from a local distributor and planted it in an open field on the lease between two power lines. Waltman positioned deer hunting stands around this field because Mississippi State University had recently concluded that certain strains of the kenaf plant, normally cultivated as an alternative to wood pulp for use in paper, attracted deer and other wildlife. The plant also increased the mass of deer who ate it, creating larger hunting trophies. Marijuana and all varieties of kenaf share some attributes, but certain strains of kenaf are virtually indistinguishable from marijuana by visual inspection.

Troy Peterson, a Harrison County sheriff's deputy assigned to a DEA task force, received an anonymous tip that a large marijuana crop was growing between power lines in a field in Harrison County. Law enforcement officials with the Drug Enforcement Agency—High Intensity Drug Trafficking Area (DEA-HIDTA) and the Mississippi Bureau of Narcotics (MBN) planned an investigation based on the tip. In accordance with that plan, Peterson stationed himself at the gate to the suspected property. A sign on the gate stated that the land was under the control of the Boar Hog Hunting Club. Meanwhile Major Randy Cook, the director of operations for the Harrison County Sheriff's Department who had aerial drug identification and eradication experience, and another task force operator conducted a "fly-over" of the area in a helicopter to determine the location and identity of the suspicious plants. The fly-over revealed a symmetrical crop planted under the power lines, a common location for marijuana crops because this made it difficult to determine ownership of the crop and rarely resulted in a prosecution. Major Cook saw what he believed to be marijuana plants scattered throughout larger plants in the field.

Sheriff Payne was waiting at the Harrison County Jail. Cook radioed Payne, shared his findings, and the helicopter picked up Payne so that he could observe the crop from the air as well. By the time the helicopter landed near the field for Payne to examine the crop from the ground, other law enforcement officers were already on the property. There was no discussion about whether a warrant was required because the officers believed that an "open fields" exception applied and that the plants were deliberately located on the power company's right-of-way to avoid prosecution. Payne spoke with numerous officers from the DEA-HIDTA and the MBN about the alleged marijuana crop. Most of the field did not appear to be planted with marijuana, but approximately 500 plants interspersed with the others did look like marijuana. Most of the plants were broadleafed, meaning the leaves grew out of a central leaf. Marijuana is a palmate plant, in which an odd number of leaves originate from the stem. The 500 plants that resembled marijuana were also palmates. It was later discovered that the broadleafed plants were Everglade 41 kenaf, and the plants most resembling marijuana were T-2 kenaf. Many of the officers were convinced that the plants were marijuana, but at least one officer was unsure. This officer nevertheless noted that he thought it was more likely than not that the palmate plants were marijuana.

A sample plant was cut from the field and brought to the office of Captain Pope, head of the narcotics division at the Gulfport Police Department. Although Captain Pope had never performed a field test during the 27 years he had served in law enforcement, he conducted the Marquis Reagent field test on the plant, and the result was negative for THC—the active drug compound in marijuana. Pope also stated that he could tell by looking at the plant that it was not marijuana, but Pope's testimony suggests that he was only sent a sample of the non-palmate Everglade 41 kenaf. Captain Pope notified Sheriff Payne and Major Cook by telephone that the test was negative for THC. Sheriff Payne then had a discussion with a number of other officers about the field test's unreliability when performed on plants that had not been dried or cured for a number of days, ultimately dismissing the test as inconclusive since it had been performed on a freshly cut plant.

After considering a number of factors such as the appearance of the plants, their location underneath the power lines, their being hidden within a larger crop of non-marijuana plants, the opinions of most law enforcement officers that the plants were in fact marijuana, reports that children had been frequenting the fields, and concerns that residents would have been alerted to the presence of the field by the circling helicopter and press coverage and would attempt to harvest some of the plants, Sheriff Payne decided to remove the 500 palmate plants from the field. Payne did not believe that the Harrison County Sheriff's Department had the resources to station officers to monitor the fields with the plants in place while a sample was cut, dried, and then tested reliably. Sheriff Payne called in an inmate work force, which cut down and removed approximately 500 plants from the property. MBN then took custody of the plants and destroyed them pursuant to internal policies.

While watching that evening's 6:00 p.m. news, Waltman learned about the search and the seizure of the plants. He contacted the sheriff's office, informing Payne that the alleged marijuana was actually kenaf, a legal wildlife food product. This was the first time any of the law enforcement officers had heard of kenaf, and this was also their first indication that Waltman held a possessory interest in the land. Payne then had both varieties of the plants grown in the field tested by Mississippi State University, which conclusively identified them as the Everglade 41 and T-2 varieties of kenaf.

Waltman sent Payne and the Harrison County Sheriff's Department a notice of claim letter as required by the Mississippi Tort Claims Act. The letter went unanswered. Waltman then sued Sheriff Payne in his official and individual capacities asserting a variety of claims in federal district court pursuant to 42 U.S.C. § 1983. The district court granted qualified immunity and summary judgment to Payne on the federal claims and dismissed the state claims without prejudice. Waltman now appeals.

II

Sheriff Payne's liability in his individual capacity is limited by the doctrine of qualified immunity, which "shields government officials performing discretionary functions from liability unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known."¹ Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law."² Once a government official acting with discretionary authority raises qualified immunity as a defense against a § 1983 claim, the burden shifts to the plaintiff to rebut the qualified immunity defense.³

To rebut the qualified immunity defense, the plaintiff must show: (1) that he has alleged a violation of a clearly established constitutional right, and (2) that the defendant's conduct was objectively unreasonable in light of clearly established law at the time of the incident.⁴ We review the district court's grant of qualified immunity de novo.⁵

Waltman claims that Payne violated his Fourth Amendment protections against unreasonable search and seizure by directing the seizure of approximately 500 of the kenaf plants. Though the Fourth Amendment protects against "unreasonable searches and seizures," the open-fields doctrine establishes "that an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers."⁶ Under the open-fields doctrine, Payne's entry onto the property was a legal search.

It is well-established that under certain circumstances, officers may seize evidence in plain view without a warrant.⁷ The plain view doctrine will support a warrantless seizure if: (1) the officer was lawfully in the position from which the object was plainly seen; (2) the object was in plain view; (3) the object's incriminating nature was immediately apparent; and (4) the officer had a lawful right of access to the object itself.⁸ Waltman challenges the third prong, claiming that the incriminating nature of the alleged marijuana was not immediately apparent. Under this prong, the incriminating nature of an object is immediately apparent if the officers had probable cause to believe that the object was contraband or evidence of a crime.⁹ Probable cause does not require certainty, and we consider the totality of the circumstances, including the officers' training and experience and their knowledge of the situation at hand.¹⁰ "[I]f officers of reasonable competence could disagree on [probable cause], immunity...