*2 JOLLY, M. GARZA Before EMILIO BENAVIDES, Judges. Circuit BENAVIDES, Judge: Circuit the district appeal from Appellants denying their Motion order court’s seeking Summary dismissal Judgement, § 1983 civil appellee John qualified basis of rights complaint that the determine immunity. Because we arresting officers acted murder, we crime of for the grant appel- court reverse district as- immunity on all claims lants by Mendenhall. serted PROCEDURAL FACTUAL AND I.
BACKGROUND
Thirteenth
Friday the
a fateful
On
at-
Myles
September
William
Cullen,
tempted
Grisby
to rob Deon
juncture
It
is at
the exact
Early
sequence
Louisiana.
morning, sometime
events is somewhat unclear
a.m.,
Nonetheless,
from the
around 7
record.
purport-
and several
one indis-
putable event occurred: Near the corner
drug
ed members of a
gang accosted Gris-
Extension,
of Lee Street and Boucher
girlfriend’s
while he was inside his
Myles was
instantly
killed
home,
single
presumed by
parties
what
all
*3
gunshot wound to the back of
the head
drug-related
involved to be a
transaction.
in
group
someone
gave
chase.
It
Grisby
When
refused to turn over a sum of
subsequent
the events
to this
demand,
money
Myles
and his cohorts
give
rise
appeal.
to this
Grisby
forced
into the car
were driv-
off, however,
ing.
they began
As
to drive
Medical personnel arrived on the scene
Grisby attempted
escape by leaping
shortly
shot,
after
followed
moving
from the
vehicle. His efforts to Officer White accompanying Deputy Shaw
gunfire.
flee were
met
He was
Ashley.
shortly
Sometime
times,
thereafter,
several
as the would-be kidnappers
simply
Mendenhall
left
flight.
Null,
took
scene. Deputies Cropper and
both
matter,
in
appellants
this
were notified and
The
sequence
exact
of these chaotic
dispatched to the scene
investiga-
as lead
unclear,
somehow,
events
but
perhaps in
Upon
arrival,
tors.
their
they began in
response
help,
to a call for
Cullen Police
investigation
earnest the
presumed
Jimmy Wayne White,
Officer
appellee
homicide.
brother,
Mendenhall’s half
shortly
arrived
investigators’
The
focus soon shifted to
thereafter,
time,
in
remarkably,
appre-
Mendenhall, as two witnesses at the scene
hend two of
renegade gang.
Due to
identified
as the shooter.
In an effort
this
arrival of
cavalry,
fortuitous
Gris-
statement,
to obtain his
appellant Deputy
by was rushed to the hospital and his life
Newton visited Mendenhall at
home,
his
Myles,
meantime,
was saved.
es-
requesting that he return to the Webster
foot,
caped on
in the direction of Lee
Parish Sheriffs Office sub-station in
street.
Springhill. While it does not appear that
Perhaps even more notable than his Mendenhall
immediately complied with
timely
brother’s
appearance at the scene of
request,
this
he did later
an appear-
make
this shooting, John Mendenhall also ar-
ance at the sub-station. He
greeted
later,
rived moments
police
dressed
his
by appellant-deputies
Cropper,
Steve
Alva
uniform,
officer’s
apparently on
way
his
Null,
Bell,
Jim
and Wayne Newton. The
home from work.1 Upon consultation with
deputies
Mendenhall,
mirandized
and then
White,
Officer
gave
Mendenhall
chase to proceeded to inquire as to
day’s
Mendenhall, however,
events.
refused to
cooperate. He left the
shortly
station
af-
Mendenhall
was not the
individual
arriving,
ter
apparently
reported to
pursuit
early that morning. Several
duty with
Haynesville
Depart-
Police
other individuals led a small procession in
ment.
Myles. Mendenhall,
chase after
driv-
ing
truck,
his
pickup
red
fell in behind
Considering the
gathered
information
them.
day’s
investigation,2 Deputy
1. John
deputy
Mendenhall served as a
sheriff
criminal
Following
record.
his dismissal in
Parish,
years
Webster Parish for
Webster
prior
employ-
several
Mendenhall secured
police
give
ment as a
Haynesville,
the events that
officer in
dispute.
rise to this
His
Parish,
neighboring
although
Claiborne
apparently
upon
tenure
swearing
ended
Cullen,
maintained his residence in
Webster
appellant
of
Sheriff Riser in June of 1996.
Parish.
Riser,
Sheriff
depositions
as he stated in
taken
lawsuit,
in relation
to this
dis-
expresses
2. The dissent
concerning
confusion
missed Mendenhall out of concern for his
nature
ensuing investiga-
and extent of the
affidavit of Ted
defense,
presented
complaint-affidavit
prepared
Cropper
Nellams,
indisputably
an individual
charges
of John
arrest
claimed
shooting, who
Myles’
in violation
scene
murder
degree
of second
affidavit,
presiding
fatal bullet.
fired the
Using
law.3
Louisiana
affidavit, failed
considering Nellams’
purpose
judge,
ob-
for the
prepared
another
to bind Mendenhall
warrant,
sought
find
Cropper
taining a search
under Louisiana
required
the arrest
trial as
over for
a warrant
and obtained
attorney subsequently
war-
a search
district
as well as
law.4 The
issue,
against
prosecution
Upon
his home.
dismissed
rant for
place
faxed to
hall.
he was
time
at which
employment,
pursuant
suit
filed
badge and
weapon and
of his
stripped
later, as-
year
one
nearly
§ 1983
U.S.C.
pro-
being
Upon
custody.
into
placed
*4
civil
his
violated
appellants
serting that
was
Mendenhall
system,
into the
cessed
for the
arresting him
falsely
by
rights
jail, where
Parish
in the Webster
locked
re-
Each side
of William
murder
being released
night, before
spent one
summary judg-
for
filed motions
spectively
day.
the
bond
next
on
of
“genuine issues
Finding that
ment.
release,
sought and
Mendenhall
Upon
with
in this matter”
fact remain
material
Expedited
A Motion
counsel.
secured
by
party,
each
made
to the claims
respect
Sep-
filed on
Examination
Preliminary
summary judg-
denied
district court
the
hearing
the
Monday
16—a
tember
timely no-
filed
Appellants
all.
—and
ment to
Monday.
following
for the
scheduled
the
of
concerning the failure
appeal
of
tice
hear-
expedited
the
requested
summary judgement
grant
court
district
in
candidacy
the
his
of concern
ing out
immunity grounds.
qualified
Chief,
Police
for Cullen
election
upcoming
Saturday. He was
following
the
to be held
II. DISCUSSION
aof
impact
the
about
worried
naturally
of Review
and Standard
A. Jurisdiction
in
chances
the
his
trial on
murder
pending
may have been well
His concern
election.
juris
contests our
party
no
While
lost
subsequently
founded, as Mendenhall
interlocutory appeal,
to hear this
diction
election.
the
that, although
briefly
note
write
we
summary
immunity on
denials of
testi-
Cropper
hearing, Deputy
At the
orders,
they are
are not final
sup-
judgment
and circumstances
the facts
as to
fied
collater-
under the
immediately appealable
Mendenhall, in
cause.
porting
the
support of
Cropper’s affidavit
fact,
investigation
3. Officer
tion,
little
implying, in
part:
relevant
stated
arrest warrant
reading
the record
of
all. Our
at
occurred
belief],
knowledge
my
day
the best of
investigation
[To
the
reveals an extensive
did commit
...
murder,
investi-
including:
on scene
an
of the
contrary to
an offense
following manner
crime,
of
involving
canvass
a full
gation
name of
chasing
law
black/male
witnesses;
any potential
neighborhood for
Cullen,
down Lee St.
Myles,
D.
William
hospital,
investigation
where
further
piston,
Louisiana,
then
a 9mm
with
armed
shooting was recover-
the first
victim of
D.
striking William
piston,
firing
9mm
at
identified
ing;
questioning witnesses
head, causing
the back
Miles
investigation
follow-up
hospital;
put
D.
After
death.
William
to determine
an
weapon,
effort
murder
vehicle,
pistol back into his
the 9mm
[sic]
caliber
a similar
owned
whether Mendenhall
talking to
before
[sic]
leave
then
scene, in-
investigation at
weapon;
later
John Mendenhall
Investigating Officers.
eyewit-
follow-up interviews
cluding
bodily harm.
to inflict
specific intent
home, at
nesses;
visit to Mendenhall’s
Second
violating
14:30.1
LRS
Therefore
requested;
cooperation
time
which
Murder.
Degree
with Mendenhall
attempted interview
and an
Art.296.
4. LSA-C.Cr.P.
house.
at
station
230
personal
al order doctrine if based on an issue of
shields state officials from
liabili-
Rodriguez
Neeley,
ty
damages
law. See
169 F.3d
under federal law for civil
220,
(5th Cir.1999) (citing
long
222
Cantu v.
as their conduct could
Rocha,
795,
(5th Cir.1996);
thought
have been
consistent with the
Forsyth,
511, 526,
rights they
alleged
Mitchell v.
472 U.S.
are
to have violated."
2806,
(1985)).
Cantu,
(citing
S.Ct.
See Colston v.
130 F.3d
98-
knowingly
Malley
violate the law."
(5th Cir.1997).
99
If those facts do not
Briggs,
335, 343, 341,
475 U.S.
106 S.Ct.
materially
outcome-i.e.,
affect the
if even
1092,
(1986).
usual standards.
Malley,
See
475 U.S. at
reported
Walsh further
that Mendenhall
345-46,
In an follow-up with Pamela day’s events.13 Neal, Grisby’s half-sister, who also Deon deputies went to the home she shared with deposition In testimony concerning Mother, Gertie, her located at the scene of events, these Pamela Neal asserts that she shooting, approximately sixty feet from never, fact, identified John Mendenhall Myles body lay where the street. Offi- in. shooter, as the and she asserts her mother Jimmy cer Morgan, assisting with the in- did not witness events nor answer ques- vestigation, accompanied Deputy Null to events, tions concerning these as the depu- the Neals’ home that afternoon.12- He ties maintain.14 Specifically, she recalls questioned the Neals as to the events they discussing the day’s events with Deputy day. witnessed earlier that He maintains Newton at hospital, specifically and that Gertie and daughter her both report- recalls informing Newton that another seeing Myles ed running street, down the man —not Mendenhall—who hand, weapon in by followed John Menden- driving car, was a green shot She hall, also bearing They arms. report- then claims, in her deposition testimony, fired, ed hearing shots and when they she was unaware next, of this individual’s identi- looked having apparently ducked in ty time, fear, at that did they Myles provide and saw fall to the name ground. fact, to Newton.15 They further observed she denies ever iden- weap- hand, tifying on in shooter, standing either Mendenhall as the somewhere thus near the body slain disputing Ashley’s near his vehicle. It claim of overhearing was obvious at just that time that her make such fell a statement. We ad- victim gunfire to the just heard. dress the consequences of this factual dis- The Neals further stated no one pute else with below. Appellee attempts argue shooting up in the air. John Mendenhall was his brief that Null met with up Neal on two the street in his truck. The man ran separate day Myles’ John, occasions passed yelled [sic] shoot- and John at him to ing, and that stop. this is somehow relevant jumped to the The man a ditch turned around appeal. outcome of this Specifically, up appellee in the air. I ducked. When I looked urges us to purported up decep- consider Null's the man hitting ground. And denying meeting tion in standing by with Neal a second his truck with a indicates, time. Our review of the record his hand.” however, that Null only and Neal met once on September 1996. While Null and Neal 14. Pamela deposition Neal states her appear to differ somewhat as to the time of her mother Myles falling witnessed to the meeting this meeting remembers the ground. —Neal Her mother confirms this version of afternoon, occurring in the while Null is less events in her deposition testimony, to the clear as to the time—there is no summary upon effect hearing gunfire, rushing judgment evidence that this second meeting door, she falling witnessed the victim place. ever Any took argument offered by ground, nothing further. She further appellee why concerning questions certain daughter, confirms that her speaking were not asked Null at this second meet- Deputy home, Null that afternoon at their did therefore, ing, be cannot considered shooter, not identify Mendenhall as the al- Court, as there no meeting second though it is gauge difficult to from her testi- which engaged Null could inqui- in this mony the knowledge extent her of the ex- ry- change daughter between her Null. Null apparently requested Pamela It should be noted that Neal admits in her *9 Neal’s statement concerning the events of that deposition testimony that she was aware of morning. response In inquiry, to this Neal the identification this man—Ted Nellams— wrote acknowledged and following but, state- as she was dating Nellams at the time of ment: "Around 7:30 morning incident, this I looked she asserts she identified him my out of front A door. man was running only by virtue of the automobile he was then down gun the street a with in his hand driving, police. and out of fear of the by initialing, his acknowledge Mendenhall day con- gathered
Further evidence Cropper proceed- then weapon. rights. Miranda16 murder suspected cerning concerning the question recovered to Mendenhall at the scene ed Specifically, de- casings, questions shell with as shooting, beginning nine-millimeter spent weapon possessed a nine-mil- no nine-millimeter Mendenhall finding whether spite by Dep- body. Inquiry weapon. near the Mendenhall anywhere limeter pos- Mendenhall whether but as uty questions, Null into those initial answered that caliber revealed weapon focused more intent- sessed soon as the interview per- previously events, Todd Moore that Officer Mendenhall morning’s ly on on a Tec-9 hand- repair work formed some information. additional provide refused that be- weapon, a nine-millimeter gun, his silence maintains Mendenhall Mendenhall. longed at, to John to, response and out of shock came did noth- rights. been read his He having Mendenhall’s attempt to obtain In an claims, more, those now than assert ing he events, paid Newton Deputy version he understood them. rights as In Mendenhall, at his residence. visit to events, day’s as to inquires response recitation to pause in our factual We to Newton that reported Mendenhall purported note that Mendenhall’s quickly the scene of upon Officer White came questions refusing to answer motivation subsequently left shooting and Grisby’s fact, for indisputable The is irrelevant. cham- He said he the shooter. pursuit of his refusal summary judgment purposes, is handgun in his bered a round —not from the subsequent departure and his cali- nine-millimeter but a smaller weapon shortly thereafter.17 station house jammed. it carried —but handgun he ber Mendenhall, in an Null followed comment. New- further He then refused to talk. Mendenhall attempt to convince Cropper and Mendenhall ton alerted refused, only that if the saying Mendenhall officers, Null, wished investigating until Mon- patience could exercise deputies him, directly with the matter discuss all rele- them with day, provide he would station report police to the that he should shooting. concerning the evidence vant appar- Mendenhall weapons. all his might ap- make an that he ently replied Men- attempt to secure After this failed pearance. Cropper cooperation, Deputy denhall’s and search the arrest sought and obtained report did day, Mendenhall Later that la- was arrested initiating warrants.18 Prior to house. to the station evening. read, ter that requested Cropper inquiry, first, prior Arizona, so have done its that should U.S. 16. Miranda arrest, tests. (1966). conduct ballistics in order to 16 L.Ed.2d imagine courtesy, we professional as While next, the failure of investi- dissent describes 17. The might from one officer extended and Officer gators to obtain Mendenhall approach, officers were point towards biggest as the miss- version of events White’s to search required under law no means puzzle. How- ing piece in the fact, as the officers' and arrest later. first ever, present- were interviewed and both men reveals, that evi- testimony there was concern opportunity ample ed with passed. being every moment —at lost as dence was understanding of the provide their later —to officers, requires in order law that the The himself testified day’s events. arrest, just must have to leave the Ted Nellams he allowed In this to search. they would need order planned to crime because he scene of the case, appears to requisite probable cause behind, to relate the manner in order remain stated, warrant to Simply be coterminous. investigators something he — have re- Mendenhall's search for to do. then failed believe that quired probable cause to evidence of weapon for was to be searched acknowledges that the officers dissent 18. The applicable on these crime seeking crime. justified a search warrant law, following the Our case pos- facts is murder. pistol, but nine-millimeter *10 Upon careful consideration of the above entirely any statement omits reference to facts, and after an review of exhaustive party another at the scene with weapon. summary case, judgment record in this we if, asserts, Even as she she informed New- find, law, as a matter of that a reasonable ton, response questioning, Deputy Cropper’s officer in position could man in green car committed the shoot- probable believe cause existed to arrest ing, and even she repeated if later Mendenhall for the murder of William statement to Null and Morgan, a reason- drawing Even after all available able affording these statements officer— favor, inferences Mendenhall’s we are appropriate weight compelled by the facts to so hold. analysis, reading conjunction them in with
Our exhaustive review of the record re- her handwritten statement which excluded significant one dispute veals with respect any man, reference to this other con- to the relevant facts: the identification sidering the totality of the evi- remaining provided must, Pamela Neal. As we we pointing dence to Mendenhall as the shoot- view this factual dispute most er—could still probable conclude cause favorable to dispute Mendenhall. The can arrest existed. briefly Ashley be summarized: maintains facts, The undisputed simply summa- that he identify overheard Neal rized, and shooter; disregarding Newton, the controversial hall as the Null and Morgan Neal, maintain identification that Neal made the from Pamela in- same are: in response identification inquiries; vestigating deputies spoke with wit- two Neal maintains that she identified a differ- nesses affirmatively who identified Men- ent man. shooter; denhall as the witness, another Pamela Neal in her handwritten state- correct, Even if Neal is and Null and ment, placed Mendenhall at the with scene Newton now mis-state identification, her a weapon; personnel medical reported find this dispute we be immaterial to the inquiry uncanny now Mendenhall’s knowledge before us—whether a of the reason- able officer could have wound and probable eagerness believed Mendenhall’s to fin- cause existed to ger arrest Mendenhall. homicide; evidence relating to a inves- tigating deputies obtained spent nine- emphasized earlier, As we probable millimeter shell casings from the analysis cause requires us to look to the and later aware became that Mendenhall totality of the circumstances to determine possessed such a caliber weapon; and whether the officers in this case behaved reasonably. refused to cooperate Neal an- executed handwritten swer placing questions statement concerning Mendenhall at killing. scene with a weapon. Her scenario, statement Under such a made factual no we simply indication of responsible another as cannot conclude that it was unreasonable shooting death of Myles. fact, her for an officer to believe he had probable Court, Supreme probable makes clear that imply probable does not mean to cause exits, cause to probable search is no different than on these facts to search the home of cause to arrest. See United States v. every Brouil individual the community known to lette, (5th Cir.l973)('Tl possess weapon. nine-millimeter recognized well probable that the cause re conclusion to be drawn from this statement is quired justify a search warrant presence is coexten that the casings, shell coupled probable sive required with the justi morning, gave Mendenhall’s actions that fy warrant.”) an arrest The dissent states: the officers simply cause. We fail to spent ''CT]wo casings nine-millimeter shell see how the officers could have had were found at the scene and ... suspected cause to search weap murder thought have had a nine-millimeter owned as the dissent
pistol. maintains, This justified information but not cause to arrest the officers in seeking a murder, search warrant for Mendenhall for unique under the pistol.” Certainly the dissent facts of this case.
237 most favorable viewed the dence is Mendenhall.19 to arrest cause Mendenhall, nonmovant, are there III. CONCLUSION summary fact precluding material issues of a homi- judgment. the scene was at Mendenhall cide, He identified holding weapon. under raises two claims Mendenhall to be was known shooter as the 1983, for Wil- § on his false arrest based the matched that weapon of a
possession
first is that a
Myles’s murder. The
liam
the
He fled
murder device.
suspected
have believed
reasonable officer
not
arrived, and he
investigators
when
scene
him.
arrest
that
existed
questions.
to answer
refused
subsequently
224, 228,
Bryant,
Hunter v.
502 U.S.
See
reasonable,
based
as it was
His arrest was
(1991);
534,
Hill v. scene of investigation While (1971)). such, we As L.Ed.2d 484 the basis appears to have been district court the order of the REVERSE arrest,1 eye- murder immunity and REMAND denying qualified did little testimony emerged the witness for dismissal of district court that arrest. pursuant to cause for provide asserted Mendenhall claims pro- anonymous for such other § 1983 and that two Ashley claims Deputy U.S.C. are inconsistent ceedings that not at the scene identified witnesses opinion. writ- Specifically, his hall as the shooter. witnesses two report states ten and REMAND.
REVERSE had shot Mendenhall had “said that John GARZA, Judge, M. Circuit However, EMILIO in the head.” the deceased dissenting: that neither Ashley admitted deposition weap- fire saw Mendenhall witness even court. Much district
I would affirm the arrived soon who Cropper, evi- on.2 If the disputed. this case about tes- anonymous witnesses if the 2. When case asked in this we find the officers 19. Because actually they see didn’t tified "[t]hat reasonably, are thus entitled behaved shoot, gun,” awith he was out there but immunity, we need not reach Ashley responded, "Correct.” concerning by appellants argument advanced Ashley’s argues clarifica- majority The related offense doctrine. credibility of his way affects tion is no said that two that the witnesses statement "investigators’ majority *12 witnesses, ten all of pro- whom While credibility may Neal’s have been him their vided names.3 Pressed in his questionable, her statements would rea- deposition, Cropper, actually who prepared sonably pointed have toward further inves- the arrest affidavits and obtained the war- tigation, prior arrest, to Mendenhall’s into rant, admitted that prior Mendenhall’s possible suspects.5 other arrest no witness had told him that Men- Therefore, summary the judgment rec- denhall had fired a gun, let alone shot suggests ord alleged eyewitness that the Myles.4 testimony pointing to Mendenhall as the The officers claim that Pamela Neal also shooter is extremely weak. The in- other identified Mendenhall as the shooter. formation on which the majority relies to deposition, her Neal claims that she not find that a reasonable officer could have only did not identify Mendenhall as the found probable cause to arrest Mendenhall shooter, but that depu- she informed the is, me, equally underwhelming. It is car, ties that a man in green a not Men- reasonably explained by undisputed the denhall, Myles. majority The “disre- fact that Mendenhall police was a officer gard[s] the controversial identification” on the scene pursuing dangerous a crimi- Neal, but on summary judgment we nal at the behest Cullen Officer 'White.6 required are to affirmatively consider the The officers did not have a suspected evidence the light most favorable to weapon murder in their possession at Mendenhall. the deposition Neal’s testimony time of Mendenhall’s is not arrest. majority contradicted her The written state- ment, notes that spent which two identify does not shell Mendenhall nine-millimeter casings as shooter or were found even state at the scene that and that hall fired gun. Therefore, viewing thought to have had a evidence favorably Mendenhall, pistol. we are nine-millimeter This information required to credit Neal’s testimony justified have the officers in seeking she informed the officers that a inman a a search warrant for pistol.7 Mendenhall’s ed, existence disagreement of a reasonable disagree. I The unreasonable shallowness regard Ashley’s testimony, among investigation other of the preceding Mendenhall’s record, aspects material itself assume, indicates arrest is exacerbated if we I be- as summary judgment inappropriate. is must, lieve pointed we that Neal to another out, man. As it alleged turned Neal’s state- 3. It is difficult to believe that the officers ments were green accurate: inman could not obtain from the names Nelams, car was Ted the shooter. eyewitnesses who "saw" Mendenhall shoot Myles, especially Cropper obtained names witnesses, 6. Two Belinda Harris and Dexter from each of ten witnesses who did not see Turner, gave this, statements to the investigating Neal, as well as written statements from they officers in Harris, which affirmed that at least Belinda and Dexter Turner. At the six least, shots were pur- fired the course of very anonymous Ashley’s nature of Neal, suit of Echoing Turner added witnesses renders worthy them less of reli- specifically that he saw ance. as he through ran the streets. Cropper stated King that Monica was the only witness to tell him Mendenhall had that, majority The by acknowledging claims fired Cropper did King not interview un- that the reasonably officers could sought til after Mendenhall's arrest. a search warrant for Mendenhall’s nine-mil- pistol, limeter I have acknowledged they majority 5. The dispute states that the over also arresting acted testimony Neal’s is immaterial. To the extent for disagree. murder. I concludes, to which the majority even if we accept 1) that Neal informed support proposition To probable shooter, 2) Mendenhall was not the cause pistol for search green shooter, man in a car reason- cause arrest Mendenhall mur- able officer coterminous, nevertheless would have believed der are majority United cites Brouillette, cause for Mendenhall's arrest (5th exist- States v. vide not even ob- However, the officers had at the time a warrant Myles, such
tained
murder
for Menden-
the arrest
obtained
majority
that Mendenhall
also notes
requisite bal-
hall,
performed
alone
let
crime
Myles’s weapon at
handled
The fact that
pistol.8
on the
listics tests
testimo-
uncontested
scene. Mendenhall’s
suspected‘of
policeman,
Myles’s gun to
ny
picked up
that he
pro-
little to
did
a nine-millimeter
having
fruits, instrumentalities, or evidence of
Cir.1973) ("It
crime
recognized that
well
*13
present,
though
products of
justify a search
even
the
the
required
are
probable cause
to
Melvin,
probable
the
F.2d
may implicate him.”
596
is coextensive with
search
warrant
warrant.”).
Melvin,
required
justify
arrest
to
an
First Circuit found
cause
at 496. In
the
that
repeated this statement
never
probable
We have
search Melvin's
there was
cause to
proposition. More-
for this
cited Brouillette
of a
property
or evidence
for instrumentalities
over,
distinguishable.
In
readily
is
Brouillette
providing a
affidavit
rea-
crime based on an
must,
Brouillette,
we held that federal
suspicion that Melvin had committed
sonable
suspected
a
for
a search warrant
crime,
to obtain
that affidavit did
though
even
not
prostitution,
show
house
provide probable
to arrest Melvin. See
cause
had
com-
believing
been
that an offense
for
holding
(noting
contrary
that a
id. at 496-97
We held that
See id. at 1176-77.
mitted.
property
ineffective
would "render
searches
invalid for failure
at
warrant
issue
search
investigations
many
as tools of criminal
at 1177. To
probable cause.
id.
show
See
to
cases”).
Rojas, 671
See also United States v.
conclusion,
that no
we stated
support
that
159,
("[T]he
(5th Cir.1979)
165
facts
F.2d
crime,
warrant,
any
could have
for
arrest
probable
to
necessary
cause
arrest
to show
See id.
obtained.
been
required
necessarily
same as those
are not
Therefore,
did
find
we
in Brouillette
search.") (citing
probable
to show
Melvin).
cause
probable
a
cause for
the existence of
that
suspected of use in
an item
warrant of
search
case,
and not Brouil-
as in
Melvin
probable cause for an
a crime established
lette,
shooting had
it is clear that a
occurred.
Rather, we held the con-
warrant.
arrest
placed
with
been
at the scene
Mendenhall had
probable cause for
the absence of
that
verse:
having
suspected of
a
gun.
a
Mendenhall was
warrant,
lack of a show-
due to the
an arrest
pistol
and
nine-millime-
nine-millimeter
occurred, indicated the
ing
had
that a crime
casings
been recovered at the
ter shell
had
probable
a search war-
cause for
absence
Obtaining
testing Mendenhall's
scene.
States,
v. United
also
480,
See
Giordenello
rant.
question
weapon
have
resolved
485-86,
1245,
2
U.S.
357
weapon had been fired
whether Mendenhall’s
(1958) (stating that the Fourth
1503
L.Ed.2d
had,
and,
weapon
was the
used
if it
it
whether
search
applies to
arrest and
both
Amendment
Warden, Maryland
shooting.
Peni-
Cf.
warrants,
invalidating
ultimately
an ar-
294, 307,
S.Ct.
tentiary Hayden,
U.S.
87
v.
387
cause) (cited
for lack of
rest warrant
(1967)
1642,
(holding that
L.Ed.2d
18
782
Brouillette).
may
“mere evidence”
government
for
search
Therefore,
not establish
Brouillette does
"in the case of 'mere
and that
of a crime
for Menden-
probable cause to search
that
evidence,’ probable
must be examined
cause
pistol
was coterminous
hall’s
the evidence
in terms of cause
believe
Myles's
for
mur-
to arrest Mendenhall
cause
der,
apprehension
sought
particular
aid
will
I believe
and under the circumstances
conviction”); Rojas,
F.2d at 165
671
or
("[Pjrobable
Probable
the two were not coterminous.
exists when facts
cause to search
require
does not
a search
cause for
warrant
person to believe that
a reasonable
warrant
person
whose
probable cause to arrest
objects sought in connection with crime
See United States
to be searched.
property is
omitted).
found.") (internal citation
will be
Cir.1979);
Melvin,
(1st
496
v.
547, 554,
Daily, 436 U.S.
Zurcher
Stanford
was obtained
The search warrant
("The
(1978)
525
S.Ct.
L.Ed.2d
for Menden-
the arrest warrant
same time as
is not
in a reasonable search
element
critical
Marvin,
Parish
Schuyler
the Webster
hall. J.
property
suspected
the owner of the
case,
assigned
attorney
to assistant district
cause
that there is reasonable
but
crime
pri-
consulted
was not
office
testified
'things'
be
specific
believe
pre-
have
he would
or to the arrest
on the
for and seized
located
are
searched
sought
results been
"[Wjith
ferred that the ballistics
sought.").
entry
to which
property
was obtained. The
before the
person
police do indeed
who the
respect to
exonerating
report
Mendenhall was
ballistics
cause
suspect but do not
expedited
ultimately
after the
arrest,
just
obtained
may
person’s property
be
such
preliminary examination.
upon probable
to believe
cause
searched
that there were
make sure
no live rounds
sion to
leave
to check on Deon
Grisby
gun.
hospital.
still
Mendenhall removed the
and,
seeing
shells from
that there
Yet, while
White
led the
bullets,
were no live
rechambered the emp-
investigators
Webster Parish
to the scene
ty
The
casings.
summary judgment
shell
Myles’s death, they
did not ask White
that,
police
record does not establish
as a
any questions about what
happened.11
stressful,
officer faced with
violent and
investigators
took over the crime
circumstances,9
chaotic
Mendenhall’s con-
immediately
scene and
dispatched White
unusual,
suspicious.10
duct was
let alone
investigate
an auto accident. White
Therefore, a fact
issue
complied,
Later,
remains as to
albeit unhappily.12
Depu-
ty
provided any
apparently spoke White,
whether that conduct
Null
but it
appear
does not
arresting
Myles’s
that White
murder.
was asked
about Mendenhall’s role in the incident.13
Perhaps
biggest
flaw in the officers’ Cropper confirmed that he
not ask
did
pre-arrest
investigation
brief
was their
*14
why
White
Mendenhall was at the crime
failure to adequately examine Officer
scene, and was
any
not aware of
such
White. White and
pro-
Mendenhall have
inquiry by any of his colleagues, prior to
testimony
vided consistent
as to the events
seeking the
Clearly,
arrest warrant.
at the crime scene. The appellants have
policeman
reasonable
thor-
have
expressly
not
testimony
claimed that this
oughly examined White before seeking an
false;
had,
they
even if
summary
against Mendenhall,
arrest warrant
a fel-
required
are
judgment, we
to credit
it.
policeman.
low
explained
Mendenhall
According
Mendenhall,
to White and
subsequent silence to the investigating of-
White
police
was the first
officer at the
1)
noting
ficers by
that
he
ques-
answered
scene, Mendenhall the second. White sent
tions
until
asking only
were
Mendenhall to Lee
Myles,
Street to pursue
whether
Myles,
he had shot
not whether
while
completed
White
the arrest of two
any
crime;14
he had
information about the
suspects. When White subsequently ar-
2) he was shocked that he was considered
Street,
rived
Lee
Mendenhall
told
3)
a suspect; and
he did not wish
an-
that
White
Ted Nelams
in self-
particular
swer
questions
these
without an
gave
defense.
permis-
White
attorney
Mendenhall
present.
explana-
Mendenhall’s
9.
people
Asked whether there
milling
personnel.
equally
bulance
White was
dis-
scene,
Wayne
mayed
about
crime
investigators
Walsh noted
that the
dispatched
then
accident,
people
"there were
that
all
him to the auto
over” and that
which he claims
Mendenhall,
scene,
jurisdiction.
was
only policeman
outside his
on the
reference
With
scene,
stated,
to the
"providing
crime
he
“I
didn’t relin-
crowd control.”
it;
quish
they
my
took it ... That was
crime
they
scene and
took it ...” He concluded that
majority
10. The
notes that Mendenhall admit-
investigators "ignored
They
me.
treated
ted
certain technical errors at the crime
nothing.” Adding
me
I
"[tjhey
like was
that
record,
scene. There is evidence in
how-
one,”
nary
ain't
question,
asked me
not
ever, that these errors were
rare and that
not
White stated that he did not volunteer infor-
they gave
in other instances
rise to little con-
mation
investigators
because the
would not
cern,
suspicion
let alone
activity
of criminal
have listened to him.
part
on the
of the officer.
deposition
testimony
White's
suggests that
11. Mendenhall
later returned to the crime
the discussion with Null occurred
after
Ashley
Deputy
scene.
Shaw both stated
issued,
arrest warrant for Mendenhall was
but
they
investigator
that
saw him there. But no
this is
clear.
not
talked Mendenhall at the scene.
notes,
majority
As
appar-
that,
displeased
12. White
though
he
even
ently
told
Newton that his
had
police
was the
charge,
officer in
as
station-house,
soon
he
jammed.
meeting
In the
investigators
led the
to the
left
reiterated that
not shot
had
questioning
without
speak
him to
Myles.
to the am-
produced by
formation that had been
apparent
by the officers’
tion is buttressed
targeted at
investigation
the entire tenor
brief
White and
of
treatment
believed at the time
preceded
that
have
investigation
could
summary judg-
Reading
guilty
that Mendenhall
hall’s arrest.
of arrest
Mendenhall, it
favorably
Therefore,
I dis-
second-degree
ment record
murder.
reasonably have be-
he could
appears
majority’s premature
con-
with the
agree
fixed
unfairly
that the officers
that,
law,
lieved
a reason-
clusion
as a matter
him,
not have consid-
they would
upon
could have
Cropper’s
officer in
shoes
able
provided
have
he could
information
ered
cause existed
concluded
him toward another
away from
or
pointing
for the murder
shooter,
no
that there was
and therefore
with-
investigators
speaking
point
claim is that
Mendenhall’s second
a silence would
attorney.15 Such
out an
ma-
used to arrest
contained
affidavit
prema-
for his
provide
not
or omissions
terial misstatements
ture arrest.16
recklessly
intentionally. We
were made
or
cause is as-
recognize
I
show a constitutional
required,
have also
factor,
but
by any individual
sessed
qualified
violation sufficient
overcome
Illi-
totality
the circumstances. See
1)
immunity, that:
the misstatements
Gates,
213, 241, 103 S.Ct.
462 U.S.
nois
character
omissions have been “of such
(1983).
recog-
I also
76 L.Ed.2d
have sub-
no reasonable official would
that,
immunity, the
nize
2) that the
magistrate”;
mitted it to a
*15
only have had a reason-
need
defendants
“clearly criti-
or omitted facts be
misstated
arrest,
belief,
at
the time of
able
cause, such
finding
to a
of
cal”
Hunter,
See
cause existed.
exist with-
probable cause would not
227,
534,
William in the back of the only purported testimony that Mendenhall head, causing death. After Myles, killed also admitted that those wit- Myles put D. the 9 mm pistol William nesses did not see Mendenhall shoot. vehicle, into back then leave the Therefore, key factual statement talking Investigating before was, affidavit summary judgment rec- Officers. John Mendenhall specific suggests, ord false. bodily intent harm. to inflict Therefore The arrest warrant affidavit consists en- 14:30.1, violating Degree L.R.S. Second tirely conclusory allegations.18 With the [Arrest Murder. Warrant Affidavit]17 exception of the statement A number facts material hall left speaking the scene without magistrate’s probable cause deter- investigators, it appears also false. Men- mination were omitted from these affida- pistol, denhall did not fire his did not shoot vits. Cropper did not note that Menden- *16 Myles, and did second-degree not commit off-duty hall was an police officer who had murder. been asked help appre- White to hend Myles. Nor did Cropper explain It appears that the material misstate- that Myles dangerous was a criminal who “clearly ments and omissions were critical” firing been his as he fled the probable existence of cause.19 Re- basis, affidavits, technically supplied While the first affidavit is beyond for the support rant, application of the against search war- issuance of the warrant Mendenhall. warrant, However, and the latter an arrest the two alleged any officers have not said, affidavits were together submitted specifics provided about what was magistrate and were both before the when he support mag- evidence to their claim that the grant decided to Appel- the arrest warrant. rely istrate did not on affidavits. The lants’ claim that both affidavits should be point Deputy Jimmy record evidence together considered therefore seems reason- Morgan's testimony Cropper that he heard able. judge people tell the up that "some of the there had told them that John shot him.” 18. To the extent to which this section instead Morgan anything Crop- could not recall else gives impression Cropper had first- per judge; clearly told the testimony does knowledge support hand to suggest the statements Cropper’s phone statements made, Cropper impression has admitted provided probable cause for Mendenhall’s ar- Cropper Therefore, any false. did not witness rest. at least in the context of a events described in the affidavits. He did not summary judgment against motion this, magistrate hall, tell the however. we must assume that the were affidavits magistrate. the sole evidence before the See Jackson, alleged Cropper The officers have en- United States v. F.2d 818 350 gaged (5th phone Cir.1987) ("Our mag- in a conversation with the review is limited to the istrate, provided a number government pre- of facts that affidavit itself because the
243 335, 344, would, L.Ed.2d es- moving the misstatements (1986) (“Only applica- the warrant sence, only the fact that where leave investigating officers. speak lacking probable tion is so indicia of did not insufficient, fact alone is This as to render official belief in its admitted, arguable provide even Null will the shield of existence unreasonable arrest. cause for Mendenhall’s probable lost.”) (internal immunity be citation omit- ted). omissions, As to the we have held regarding information The omitted “clearly that when the omitted facts are witnesses, notably anonymity their cause, finding critical” to a fire his they did not see proof recklessness can be inferred from have been critical. appears also weapon, Hale, the omissions themselves. discussed, Likewise, I the omitted as have at 400. surrounding Mendenhall’s circumstances included, conduct, if have defeated might Therefore, majority’s disagree I with the cause for his
the existence grant summary judgment decision Therefore, in- the omitted murder arrest. based on immuni- the defendants appears to have been formation also I court’s ty. would affirm the district finding “clearly critical” to the summary judgment. denial cause. whether, only remaining question is prepared to summary judgment, we are 1) a matter of law conclude as neither and omissions were
misstatements 2) reckless; or that nor
intentional were not of and omissions
misstatements that a reasonable officer
such a character magistrate. submitted the would not have HERNANDEZ, Adolfo Gil See, Hale, F.2d at 400-02. Read- e.g., Petitioner-Appellant, most favor- ing the evidence prepared to I am not able As the mis- either conclusion. draw JOHNSON, Gary Director, Texas De- L. statements, officers knew what Justice, Institu- partment of Criminal present than told them. Rather witnesses Division, Respondent-Appellee. tional told, they apparently mis- what No. 99-10446. the witnesses’ statements. characterized *17 entirely almost on those They then relied Appeals, Court of United States and on con- apparent mischaracterizations Fifth Circuit. clusory seeking an statements warrant, facts presenting than rather May have. the absence they did misstatements, very least
apparent remains as to whether
a fact issue showing approached
affidavit
cause, any therefore as to whether have submitted
reasonable officer would of an arrest
such an affidavit search 475 U.S. Malley Briggs,
warrant. See
provid-
not in affidavit was
other information
the district court to
sented no evidence to
"Major
does
magistrate because
Jones
may
ed to
have been
indicate whether other facts
this information
the substance of
magistrate
not state
and considered
before
cause.'');
may
it
place in the record where
and cites no
his determination of
found.”).
Hale,
be
(rejecting claim that