Pando v. Sheriff of Marion County, 5:15-cv-00610

Background

In April–September 2013 Marion County deputies investigated Holy Smokes Man (owned by Pando and McMullen) for sale of synthetic cannabinoids marketed as incense (e.g., “Scooby Snax”).
On April 23, 2013 Deputy Tanya Rodriguez (plain clothes) observed packaged products and paraphernalia in the store, bought a sample, and—after being invited to the back office—seized 589 packages she reasonably believed to be synthetic marijuana. No warrant was obtained for that seizure.
FDLE testing of samples from the April seizure later showed many contained XLR11 (a Schedule I substance added by emergency order). Controlled buys in August produced positive presumptive field tests for some brands; some other buys/tests were negative or produced different compounds (e.g., AB‑Fubinaca).
Rodriguez prepared a warrant affidavit (signed Sept. 4, 2013) describing prior seizures and positive tests but omitted several purchases and negative test results; a search warrant was issued and executed Sept. 5, 2013 leading to arrests.
State court suppressed both the April warrantless seizure and the September search (finding intentional omissions material to probable cause) and criminal charges were dismissed. Plaintiffs then sued under 42 U.S.C. § 1983; they later abandoned false arrest and malicious prosecution claims against Felix Rodriguez.
The magistrate judge recommended granting summary judgment for the defendants, concluding Rodriguez had (at minimum) arguable probable cause and was therefore entitled to qualified immunity; municipal claims against the Sheriff also failed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
April 23, 2013 warrantless seizure — was it an unreasonable seizure?	Seizure unlawful because officers could not determine incriminating character of packaged products without testing.	Plain‑view exception applied given visibility, labels/pricing, paraphernalia, prior tips, purchase of sample and officer training — probable cause existed.	Held: Plain‑view/probable cause under totality of circumstances; at minimum arguable probable cause → qualified immunity for Rodriguez.
Sept. 5, 2013 search warrant — were omissions in the affidavit fatal; does qualified immunity apply?	Omissions (negative tests, prior buys, confidential source history) were intentional and material; warrant invalid so § 1983 liability.	Even omitting those facts, affidavit still showed positive FDLE and field tests plus corroborating circumstances → arguable probable cause and qualified immunity.	Held: Omissions not so material as to defeat arguable probable cause; qualified immunity applies; summary judgment for Rodriguez.
Municipal liability against Sheriff Blair (Monell theories: policy/custom, failure to train/discipline, ratification, final policymaker)	Sheriff had a culture of lax oversight; grand jury presentment and unrelated indictment suggest systemic failings and ratification.	Written policies, UDEST procedures, and training documentation show oversight and training; plaintiffs present no pattern of similar violations.	Held: No evidence of a municipal custom, deliberate indifference, ratification or final policymaking by deputies; Sheriff entitled to summary judgment.
Claims abandoned by Plaintiffs (false arrest, malicious prosecution)	N/A — plaintiffs conceded these claims.	Defendants move for judgment.	Held: Claims abandoned; judgment for Defendants (including Felix Rodriguez, who was named only in those claims).

Key Cases Cited

Harlow v. Fitzgerald, 457 U.S. 800 (qualified immunity standard)
Malley v. Briggs, 475 U.S. 335 (immunity protects all but the plainly incompetent or those who knowingly violate the law)
Hope v. Pelzer, 536 U.S. 730 (clearly established right / fair‑warning inquiry)
Saucier v. Katz, 533 U.S. 194 (qualified immunity two‑step framework)
Payton v. New York, 445 U.S. 573 (warrant requirement; exceptions)
Minnesota v. Dickerson, 508 U.S. 366 (plain‑view seizure principles)
Horton v. California, 496 U.S. 128 (plain‑view elements)
Texas v. Brown, 460 U.S. 730 (probable cause for plain‑view seizure — reasonable ground to believe item is contraband)
Franks v. Delaware, 438 U.S. 154 (false statements/omissions in warrant affidavits and hearing rule)
City of Canton v. Harris, 489 U.S. 378 (municipal failure‑to‑train standard)
Monell v. Dep't of Social Servs., 436 U.S. 658 (municipal liability under § 1983)
Fish v. Brown, 838 F.3d 1153 (11th Cir. 2016) (plain view + qualified immunity application)
United States v. Smith, 459 F.3d 1276 (11th Cir. 2006) (plain‑view seizure may include items evidencing crime; certainty not required)
Madiwale v. Savaiko, 117 F.3d 1321 (11th Cir. 1997) (arguable probable cause can overcome omissions in affidavit)
Jones v. Cannon, 174 F.3d 1271 (11th Cir. 1999) (arguable probable cause governs qualified immunity inquiry)