Opinion
Civil Action DR-21-CV-004-AM-CW
08-18-2023
RICARDO GARCIA, Plaintiff, v. REYES BERMEA, MARTIN CANTU, AND CRISTIAN CAMPIRANO, Defendants.
REPORT AND RECOMMENDATION
COLLIS WHITE UNITED STATES MAGISTRATE JUDGE
To the Honorable Alia Moses, Chief United States District Judge:
Plaintiff Ricardo Garcia filed suit under 42 U.S.C. § 1983 against three employees of the Maverick County Sheriff's Department after he was arrested and then charged with numerous crimes that were subsequently dismissed. Now pending is Defendants' Motion for Summary Judgment. ECF No. 34. Because all pretrial matters were referred to the undersigned pursuant to 28 U.S.C. § 636, the undersigned hereby issues this report and recommendation, recommending that the motion for summary judgment be GRANTED.
Unless otherwise noted, the facts come from Campirano's body camera video evidence of the encounter. See Mot. Summ. J. Ex. B (“Campirano Video”).
At approximately 6:08 a.m. on the morning of February 13, 2019, the Maverick County Sheriff's Department received a call about a suspicious dark-colored pickup truck at an abandoned house at 155 View Drive in Eagle Pass, Texas. Dispatch Notes, ECF No. 34-1 at 9. Defendant Reyes Bermea, a deputy sheriff with the Maverick County Sheriff's Department, responded to the call and arrived at the location around 6:20 a.m., parked behind a maroon truck in the driveway, and approached the vehicle. Id.; see also Campirano Video. Bermea encountered Plaintiff Ricardo Garcia, who was sitting alone in the truck with the engine running. Bermea identified himself and asked Garcia if everything was okay. Am. Compl., ECF No. 13 at 3. Garcia responded that everything was fine, see id., then exclaimed, “This is my property, get the f*** out of here, get the f*** out of here, don't f***ing bother me mother****er, this is my property, you better get the f*** out of my property, this is the last time I tell you, you better get the f*** out of here,” Bermea Offense R., ECF No. 34-1 at 4. Bermea also asked for Garcia's driver's license, but Garcia refused, claiming he did not need to produce it. Am. Compl., ECF No. 13 at 3.
Defendant Cristian Campirano, also a deputy sheriff with the Maverick County Sheriff's Department, then arrived with his emergency lights engaged. He pulled up alongside Bermea's vehicle, stepped out, and began recording the encounter with his body camera. According to the footage, Bermea acknowledged that Garcia did not need to cooperate but told Garcia he “didn't need to be like that.” He explained that he was there because he received a “call-out” to check on the house, which had been abandoned for a while. Garcia responded that it was his property and unless the call was about a crime being committed, “it don't f***ing matter, it don't f***ing matter, bye.”
At 6:25 a.m., Campirano, who was standing a few feet behind Bermea on the passenger side of the vehicle, radioed “subject is still noncompliant” and ordered Garcia to exit the vehicle. Campirano immediately proceeded to the driver side, where the window was rolled up and the door closed, and again ordered Garcia to step out of the vehicle. Campirano then opened the driver side door and yet again ordered Garcia to exit. Garcia, however, repeatedly refused to exit, insisting he was on his own property.
Garcia too was recording the encounter on his cell phone, keeping his hands visible the entire time and sitting upright in a nonthreatening position. Campirano asked for identification to verify that Garcia's address matched the property's address, but Garcia insisted he did not need to produce identification. Campirano commanded Garcia to exit yet again, saying, “Either you come out, or we extract you out.” Garcia showed no signs of moving, so Campirano grabbed Garcia's arm and attempted to pull him from the vehicle. Garcia, without striking Campirano, pulled away from Campirano's grasp and repeatedly insisted he was on his own property. Seemingly slurring his words, Garcia also insisted that Campirano was violating his constitutional rights, threatened to sue, and asked Campirano if he wanted to be arrested.
Campirano finally pulled Garcia from the vehicle and immediately ordered Garcia to place his hands behind his back. Garcia refused to cooperate, so Bermea joined in to help Campirano subdue Garcia. Not until Campirano threatened Garcia with pepper spray did Garcia finally allow Bermea and Campirano to handcuff him.
After Garcia was handcuffed, Campirano found Garcia's wallet in the vehicle, located Garcia's license, and verified the driver's license number over his radio. Campirano shined his flashlight into the back of the vehicle and commented to Garcia that he found an open container of alcohol, giving him probable cause to search Garcia's vehicle if he did not consent. Garcia retorted there was no probable cause because he could drink on his own property. Campirano, in response, noted that the address on the license did not match the address of the property, but Garcia nonetheless insisted it was his property.
Campirano patted down Garcia, found no weapon, and escorted Garcia to a patrol vehicle. He then commented to Bermea that Garcia was intoxicated and referenced “PI,” i.e., public intoxication. Campirano performed a cursory search of Garcia's vehicle, looking throughout Garcia's papers and other items, including a cigarette pack in the front seat. The only notable finding was what appeared to be an almost-empty bottle of 1800 tequila in the backseat, presumably the “open container” Campirano previously mentioned.
In the video, an unknown individual, who Garcia now identifies as Defendant Martin Cantu, a corporal with the Maverick County Sheriff's Department, ordered Garcia to be taken away to jail at approximately 6:39 a.m. Am. Compl., ECF No. 13 at 5; Dispatch Notes, ECF No. 34-1 at 3. A second video recorded by Krystal Gomez, also a deputy with the Maverick County Sheriff's Department, shows that after Garcia was gone, law enforcement officers conducted a more thorough inventory search of the vehicle before impounding it. See Mot. Summ. J. Ex. C (“Gomez Video”); Bermea Incident R., ECF No. 34-1 at 17. Although not apparent from the video, Garcia alleges that Bermea and Cantu were involved in this search. Am. Compl., ECF No. 13 at 5. In the Gomez Video, Gomez identified a salt-like substance on a block of porcelain on the floorboard in the backseat that she surmised was cocaine. See also Gomez Suppl. Narrative, ECF No. 34-1 at 20. The offense reports of Bermea, Cantu, and Gomez indicate the substance field-tested positive for cocaine. ECF No. 34-1 at 17, 20. Cantu's report also indicates that he discovered three small baggies containing a white powdery substance, which also field-tested positive as cocaine. Id. at 20.
Officers ultimately charged Garcia with resisting arrest, possession of a controlled substance, driving while intoxicated, and failure to identify. ECF No. 34-1 at 8-12, 14-16; Am. Compl., ECF No. 13 at 5. Campirano's incident report characterizes Garcia as having slurred speech and indicates that when he opened the driver's side door of Garcia's vehicle, he “noticed a strong odor of an unknown alcoholic beverage emitting from him or his person.” ECF No. 34-1 at 15. All charges were eventually dropped, however, and no other additional criminal charges were ever pursued. Am. Compl., ECF No. 13 at 6.
True to his word, Garcia filed the present suit against Defendants Campirano, Bermea, and Cantu, bringing claims under 42 U.S.C. § 1983. “A person may assert a' 1983 claim against anyone who ‘under color of any statute, ordinance, regulation, custom, or usage, of any State' violates that person's right under the Constitution.” Anderson v. Valdez, 845 F.3d 580, 599 (5th Cir. 2016) (quoting § 1983)). To establish a claim, a person must (1) show “a violation of a right secured by the Constitution or laws of the United States,” and (2) “demonstrate that the alleged deprivation was committed by a person acting under color of state law.” Id. (quoting Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013)).
“The traditional definition of acting under color of state law requires that the defendant in a' 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). There is no dispute that Defendants were acting under color of state law.
Garcia's § 1983 claims are premised upon violations of the Fourth Amendment, which protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “The essential purpose of the Fourth Amendment is to impose a standard of ‘reasonableness' upon law enforcement agents and other government officials in order to prevent arbitrary invasions of the privacy and security of citizens.” United States v. Hunt, 253 F.3d 227, 230 (5th Cir. 2001).
The Fourteenth Amendment incorporates “the protections of the Fourth Amendment against the States.” Torres v. Madrid, 141 S.Ct. 989, 997 (2021).
Liberally construing Garcia's pro se complaint, Garcia brings five claims, alleging that Defendants violated his Fourth Amendment rights by: (1) unlawfully detaining him; (2) arresting him without probable cause; (3) using excessive force in arresting him; (4) unlawfully searching his vehicle; and (5) submitting a false probable cause affidavit to a magistrate judge.
In support of his claims, Garcia alleges that: (1) he did not commit any criminal offense that warranted a stop, detention, physical restraint, or arrest; (2) Campirano used “extreme force” when he “violently yanked” Garcia out of his truck, slammed him onto a “thorny ground,” and twisted and painfully injured his shoulders, all while Bermea failed to intervene in the “assault,” see Am. Compl., ECF No. 13 at 4; (3) Cantu unlawfully ordered that he be taken away to jail without probable cause, knowing that none existed; (4) Bermea and Cantu illegally searched his truck while on private property, without probable cause, and without a warrant or any connection to a crime; and (5) he was “processed and confined to jail on bogus charges,” where Defendants submitted reports and false sworn affidavits establishing untrue probable cause for the arrest, in violation of clearly established law, see Am. Compl., ECF No. 13 at 5-6. Notably, Garcia no longer asserts ownership of the property. Rather, he alleges he was a construction worker who works on new and distressed homes, including the home at 155 View Drive, and on the morning in question, he was awaiting the rest of the crew of workers to arrive.
Defendants' Motion for Summary Judgment
After the parties completed discovery, Defendants filed the present motion for summary judgment, arguing that they are entitled to qualified immunity. Under the doctrine of qualified immunity, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions” and “protects ‘all but the plainly incompetent or those who knowingly violate the law.'” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
According to Defendants, they are entitled to qualified immunity because they did not violate Garcia's constitutional rights. But even if they did, says Defendants, their actions from a totality of the circumstances were objectively reasonable, as a matter of law. In support, Defendants presented the aforementioned video evidence and offense reports, and contend that the evidence shows Garcia was in violation of: (1) criminal trespass, Tex. Pen. Code § 30.05; (2) interference with public duties of a peace officer, Tex. Pen. Code § 38.15; (3) failure to obey a lawful command of a police officer, Tex. Transp. Code § 542.501; (4) disorderly conduct, Tex. Pen. Code § 42.01; and (5) public intoxication, Tex. Pen. Code § 49.02. They further argue that after Garcia disobeyed their lawful commands to exit the vehicle, they simply extracted him from the vehicle using the minimum amount of necessary and reasonable force to gain control and handcuff him. Defendants did not address Garcia's claims pertaining to the unlawful search of his vehicle or the submission of a probable cause affidavit.
Garcia's Response
In response to the motion for summary judgment, Garcia disputes a number of Defendants' purportedly “undisputed facts” and argues there is no evidence he committed any crime. He also strongly denies he was intoxicated, submitting a sworn declaration in support and pointing out that at no time did Defendants discuss intoxication with him or ask him to submit to a breathalyzer or sobriety test. Resp., ECF No. 36 at 2-3, 36-3 at 1. He also attaches an affidavit from the purported true owner of the property, Martin Casares, Jr., who states that Garcia was a longtime family friend who was allowed to come stay or visit at any time. Prior to his arrest, the owner claims he even discussed with Garcia about taking over the mortgage or redeeming the property. Resp. Ex. A, ECF No. 36-2 at 1.
The Maverick County Appraisal District website indicates that Casares's ownership of the property conveyed to LA Center Land, Inc., via a trustee's deed, on December 4, 2018, well before the incident at the property. See https://www.maverickcad.org/property-detail/82184/2023 (last visited Aug. 17, 2023). This, however, does not necessarily establish that Casares no longer had access to the property or the right to invite or exclude others.
Garcia also newly alleges that Defendants accosted him and investigated him without reasonable suspicion and without a warrant, within the curtilage of an inhabited residence, which is a safeguarded area within the meaning of the Fourth Amendment. He also newly claims that when Campirano opened the vehicle of the door, he conducted an illegal search.
Defendants' Reply
In their reply, Defendants argue that in addition to the previously mentioned crimes, the video evidence also reveals Garcia committed the offense of Possession of Alcoholic Beverages in a Motor Vehicle, Texas Penal Code § 49.031. Defendants also cite to Garcia v. Orta, 47 F.4th 343 (5th Cir. 2022), which held that a vehicle was parked in a “public place” for purposes of public intoxication where the plaintiff was asleep in a running vehicle that was parked in a private driveway. Defendants did not address Garcia's argument that he was parked within the curtilage of the home or that the home was occupied at the time.
According to § 49.031, a person commits an offense of possession of alcoholic beverage in a motor vehicle “if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked.”
II. APPLICABLE LAWS
A. Qualified Immunity
In resolving qualified immunity claims, a court must follow a two-step process, inquiring (1) whether the facts that a plaintiff has alleged or shown make out a constitutional violation, and (2) whether the right at issue was clearly established at the time of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). If the answer to either prong is no, then an officer is entitled to immunity from suit. Id. A court is “permitted to exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). “Ordinarily, each individual defendant's entitlement to qualified immunity should be analyzed separately.” Wallace v. Taylor, No. 22-20342, 2023 WL 2964418, at *3 (5th Cir. Apr. 14, 2023).
“A Government official's conduct violates clearly established law when, at the time of the challenged conduct, ‘the contours of a right are sufficiently clear' that every ‘reasonable official would have understood that what he is doing violates that right.'” al-Kidd, 563 U.S. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987) (cleaned up)); Mullenix v. Luna, 577 U.S. 7, 11-12 (2015). Clearly established law is not determined “at a high level of generality” and requires that the legal principle clearly prohibit the officer's conduct in the particular circumstances before him. District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018). The law must be well settled, as dictated by either (1) “cases of controlling authority in their jurisdiction at the time of the incident which clearly established the rule on which they seek to rely” or (2) “a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.” Wilson v. Layne, 526 U.S. 603, 617 (1999). A court does not need “a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741; Malley v. Briggs, 575 U.S. 335, 341 (1986) (“[I]f officers of reasonable competence could disagree on this issue, immunity should be recognized.”). In rare circumstances, a constitutional violation is so obvious that “the unlawfulness of the officer's conduct is sufficiently clear even though existing precedent does not address similar circumstances.” Wesby, 138 S.Ct. at 590.
B. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure allows a party to move for summary judgment, identifying each claim on which summary judgment is sought. Summary judgment is appropriate “if the movant shows that there is no genuine dispute at to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A genuine issue of material fact exists if the record, taken as a whole, could lead a rational trier of fact to find for the non-moving party.@ Tubos de Acero de Mexico, S.A. v. Am. Int=l Inv. Corp., 292 F.3d 471, 478 (5th Cir. 2002).
“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Evidence presented at the summary judgment stage need not be in admissible form, see Fed.R.Civ.P. 56(c)(2), but the “party submitting the evidence must show that it will be possible to put the information into an admissible form.” Campos v. Steves & Sons, Inc., 10 F.4th 515, 522 (5th Cir. 2021) (quotations and alterations omitted).
Courts have held that an offense report falls within the public records exception to the rule against hearsay. See, e.g., Hassan v. City of Shreveport, Civ. No. 15-2820, 2018 WL 3028951, at *7 (W.D. La. June 18, 2018). Even if it does not, its contents could be presented at trial in admissible form through live testimony. Stephenson v. Gray Cnty. Sheriff Dep't, No. 2:19-CV-222-Z-BQ, 2021 WL 5362089 (N.D. Tex Sept. 28, 2021).
“A good-faith assertion of qualified immunity alters the usual summary judgment burden of proof, shifting it to the plaintiff to show that the defense is not available.” Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc) (quoting King v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016)). To do so, the plaintiff must rebut the defense for each defendant “by establishing that the official's allegedly wrongful conduct violated clearly established law and that genuine issues of material fact exist regarding the reasonableness of the official's conduct.” Gates v. Tex. Dep't of Protective and Regul. Servs., 537 F.3d 404, 419 (5th Cir. 2008); Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
Although the plaintiff bears the burden of negating qualified immunity for each defendant, all reasonable inferences are drawn in his favor. Callahan, 623 F.3d at 253. However, “unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.” Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003). A court must also assign “greater weight . . . to the facts evident from video recordings taken at the scene.” Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011). A court “need not rely on the plaintiff's description of the facts where the record discredits that description but should instead consider ‘the facts in the light depicted by the videotape.'” Id. (quoting Scott v. Harris, 550 U.S. 372, 381 (2007)).
III. ANALYSIS
A. Curtilage or Open Field
The first issue the Court must resolve is whether Garcia's encounter with Defendants occurred within the curtilage of a home, where the Fourth Amendment affords greater protections. At the very core of the Fourth Amendment “stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'” Florida v. Jardines, 569 U.S. 1, 6 (2013) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). “To give full practical effect to that right, [a court] considers curtilage-‘the area immediately surrounding and associated with the home'-to be ‘part of the home itself for Fourth Amendment purposes.'” Collins v. Virginia, 138 S.Ct. 1663, 1671 (2018) (quoting Jardines, 569 U.S. at 6). “The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.” California v. Ciraolo, 476 U.S. 207, 212-13 (1986).
To qualify as curtilage, the location must be “so intimately tied to the home itself that it should be placed under the home's ‘umbrella' of Fourth Amendment protection.” United States v. Dunn, 480 U.S. 294, 301 (1987). In determining whether a given location falls within the home's curtilage, four specific factors guide the analysis: “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.” Id.
Garcia has not presented any evidence that he was parked within the curtilage of a home, aside from an undated picture of a truck in front of a house at an angle that is in conflict with the video evidence. See Resp. Ex. C, ECF No. 36-2 at 3. The Campirano video, which is the best evidence here, indicates that Garcia was in fact parked a notable distance from the home and out in the open, where law enforcement could easily drive up behind Garcia's vehicle. See United States v. Beene, 818 F.3d 157, 162 (5th Cir. 2016) (factoring in that nothing blocked the driveway's access). Even if the house was inhabited-which is highly improbable considering the allegations in Garcia's complaint and additional summary judgment evidence-the location is freely exposed to public view, where the Campirano Video clearly shows a school bus drive by in the background. See id. (factoring in that driveway could be observed from the street). There is also no obvious fence or “no trespassing” sign in the video to restrict access to the property, and no fence enclosing the area where Garcia was parked. See id. (factoring in that no steps were taken to protect privacy). Considering the totality of the evidence, no reasonable juror could conclude that Garcia was within the curtilage of a home at the time of the encounter. See id.; see also United States v. Moffitt, 233 Fed.Appx. 409, 411-12 (5th Cir. 2007).
Rather, Garcia was parked in an “open field,” which is not protected by the Fourth Amendment from “official searches characterized as sights seen in the open fields.” Husband v. Bryan, 946 F.2d 27, 29 (5th Cir. 1991). “An investigation of an open field, be it visual, olfactory, or otherwise, does not implicate the Fourth Amendment because ‘an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers.'” Beene, 818 F.3d at 163 (quoting Oliver v. United States, 466 U.S. 170, 181 (1984)). Therefore, Defendants were lawfully permitted to enter onto the property, approach Garcia, and conduct a visual inspection of anyone or anything in plain view. See id.; cf. Husband, 946 F.2d at 29 (contrasting a plain view inspection with a physically invasive inspection, which is uniquely intrusive). And because there was arguably probable cause, as the undersigned will next explain, Defendants were also authorized to make a warrantless arrest.
It is also “beyond dispute” that the action of a police officer shining his flashlight to illuminate the interior of a car, without probable cause to search the car, does not entrench upon any right secured by the Fourth Amendment. Dunn, 480 U.S. at 305; Texas v. Brown, 460 U.S. 730, 739-40 (1983).
B. Claims of Unlawful Seizure and False Arrest
Finding that Garcia was not within the curtilage of a home, the undersigned will next address Garcia's claims that he was unlawfully seized and arrested without justification. “The protection of the Fourth Amendment is enjoyed not only in the home, but on the sidewalk and in a person's automobile.” United States v. Hunt, 253 F.3d 227, 230 (5th Cir. 2001). “Warrantless searches and seizures are ‘per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.'” United States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)).
Courts have recognized three different tiers of warrantless encounters with law enforcement for purposes of Fourth Amendment analysis. United States v. Massi, 761 F.3d 512, 520 (5th Cir. 2014). The first is essentially a consensual encounter, which involves “no coercion or detention.” Id. It “does not implicate the [F]ourth [A]mendment” or require any level of particularized suspicion. Id. (quoting United States v. Zukas, 843 F.2d 179, 181 (1988)).
The second is an investigatory stop, where an officer, without offending the Fourth Amendment, may briefly detain an individual for further investigation if “a law enforcement officer can point to specific and articulable facts that lead him to reasonably suspect that a particular person is committing, or is about to commit, a crime ....” United States v. Hill, 752
F.3d 1029, 1033 (5th Cir. 2014) (citing Terry v. Ohio, 392 U.S. 1 (1968)). Known as a Terry stop, the detention/seizure “must be temporary and last no longer than is necessary to effectuate the purpose of the stop,” unless probable cause or “further reasonable suspicion, supported by articulable facts, emerges.” United States v. Brigham, 382 F.3d 500, 507 (5th Cir. 2004) (en banc). Under Terry, the legality of the stop is a dual inquiry: (1) “whether the officer's action was justified at its inception,” and (2) whether the officer's subsequent actions were “reasonably related in scope to the circumstances that justified the interference in the first place.” Terry, 392 U.S. at 19-20.
In Terry, the Supreme Court determined there was reasonable suspicion for an officer to approach three men on a public street and frisk them for weapons, where the officer witnessed the men repeatedly pace up and down a street over a period of approximately fifteen minutes, pausing at the same store front numerous times.
The third type of encounter is an arrest, which requires an officer to have probable cause to believe that the suspect committed a crime in the officer's presence. Cf. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 204 (5th Cir. 2009) (“The constitutional claim of false arrest requires a showing of no probable cause.”). “Probable cause justifying an arrest ‘means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.'” Hogan v. Cunningham, 722 F.3d 725, 731 (5th Cir. 2013) (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater v. Lago Vista, 532 U.S. 318, 354 (2001).
“Police officers who ‘reasonably but mistakenly conclude that probable cause is present' are entitled to qualified immunity.” Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Probable cause may be for any crime and is not limited to the crime that the officers subjectively considered at the time they perform an arrest. Arizmendi v. Gabbert, 919 F.3d 891, 903-03 (5th Cir. 2019) (“[I]n warrantless arrests, there is no threat to a citizen's Fourth Amendment rights where the officer had probable cause to arrest, albeit not for the offense he chose to charge.”).
1. When Did the Initial Seizure Occur?
Where the underlying facts are undisputed, a determination of when a seizure occurred is a legal one for a court to decide. See United States v. Salazar, 609 F.3d 1059, 1063-64 (10th Cir. 2010).
“Because a seizure under the Fourth Amendment must be ‘justified at its inception,'” the general starting point in assessing a Fourth Amendment claim is determining if and when a seizure under the Fourth Amendment occurred. United States v. Flowers, 6 F.4th 651, 655 (5th Cir. 2021) (quoting Hill, 752 F.3d at 1033). “A seizure occurs when, under the totality of the circumstances, a law enforcement officer, by means of physical force or show of authority, terminates or restrains a person's freedom of movement.” Id. (citing Florida v. Bostick, 501 U.S. 429, 434 (5th Cir. 1991)). In the absence of physical force, “a person has been ‘seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980).
When, as here, a person “has no desire to leave for reasons unrelated to the police presence, the coercive effect of the encounter can be measured better by asking whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.” Brendlin v. California, 551 U.S. 249, 255 (2007). “Examples of circumstances that might indicate a seizure . . . would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person or the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.” Mendenhall, 446 U.S. at 554.
Importantly, no seizure occurs simply because a police officer approaches an individual to ask a few questions “if the person is willing to listen ....” Bostick, 501 U.S. at 434; Flowers, 6 F.4th at 655. “So long as a reasonable person would feel free ‘to disregard the police and go about his business,' the encounter is consensual and no reasonable suspicion is required.” Bostick, 501 U.S. at 434 (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)). “The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.” Id.
Furthermore, in the absence of physical force, a seizure only occurs if there is actual submission to the officer's show of authority. Brendlin v. California, 551 U.S. 249, 254 (2007); Carroll v. Ellington, 800 F.3d 154, 170 (5th Cir. 2015). A show of authority without actual submission or some subsequent application of physical force is no more than an “attempted seizure, so far as the Fourth Amendment is concerned.” Brendlin, 551 U.S. at 154; Carroll, 800 F.3d at 170. As such, “a suspect's conduct in the interval between the show of authority and the submission can be considered in determining the reasonableness of the eventual seizure.” United States v. Lowe, 791 F.3d 424, 431 (3d Cir. 2015) (citing Brendlin, 551 U.S. at 254).
In determining whether particular conduct constitutes submission to authority, a court must examine “the totality of the circumstances-the whole picture ....” United States v. Cortez, 449 U.S. 411, 417 (1981). “[W]hat may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away.” Brendlin, 551 U.S. at 262. “[I]t is the nature of the interaction, and not its length, that matters.” United States v. Baldwin, 496 F.3d 215, 219 (5th Cir. 2007).
a. Bermea
After considering the summary judgment evidence in the light most favorable to Garcia, the undersigned concludes that Bermea's actions did not amount to a Fourth Amendment seizure. The undisputed facts presented in the video show that Bermea, with his emergency lights disengaged, parked a notable distance behind Garcia's vehicle, where Garcia could still drive away. Cf. United States v. Wright, 57 F.4th 524, 532 (5th Cir. 2023) (Wright I) (by pulling behind a vehicle with emergency lights engaged, an officer is displaying “a sign of authority clearly communicating [to the driver] that he was not free to leave”). Bermea's initial approach of the car for simple questioning was not a “seizure.” United States v. Brown, 209 Fed.Appx. 450, 452 (5th Cir. 2006); Bostick, 501 U.S. at 434. Once he arrived at the vehicle, Bermea spoke calmly and nonthreateningly through the passenger side window, did not order Garcia from his vehicle, did not make physical contact with Garcia or remove his service weapon, and calmly explained why he was there. He also calmly attempted to elicit basic information from Garcia, acknowledging that Garcia was under no obligation to cooperate with law enforcement. The encounter lasted less than five minutes and involved no coercion or detention, thereby not implicating the Fourth Amendment. See Brown, 209 Fed.Appx. at 452 (simple questioning of a citizen without detention does not constitute a seizure for Fourth Amendment purposes and needs no justification on an articulated basis for suspicion); United States v. Elmore, 595 F.2d 1036 (5th Cir. 1979) (no seizure in the absence of physical contact where the tone of conversation indicated that the defendant was not compelled to continue with the encounter).
Garcia alleges that Bermea and Garcia arrived together and blocked his exit, but the video evidence strongly disputes this. See Carnaby, 636 F.3d at 187 (a court should consider the facts in the light depicted by the videotape).
Garcia has not submitted any summary judgment evidence that Bermea's emergency lights were ever engaged. Even if they were, it did not become clearly established law until Wright I that pulling behind a driver with lights engaged constituted a seizure.
b. Campirano
Campirano, in contrast, arrived at the house with his patrol vehicle's red and blue emergency lights flashing, which was a clear display of authority communicating to Garcia that he was not free to leave. See Wright I, 57 F.4th at 532. Campirano almost immediately commanded Garcia to exit the vehicle, repeated the command numerous times, and then opened Garcia's door to facilitate Garcia's exit. Even before Campirano threatened to “extract” Garcia from the vehicle if he did not comply, no reasonable person would have felt free to decline Campirano's repeated and authoritative requests to exit the vehicle and certainly would not have felt free to drive away. See id.; United States v. Morris, 40 F.4th 323, 328 (5th Cir. 2022) (“Under the Fourth Amendment's ‘free to leave test,' it is hard to conclude that a person ordered to a certain location by police would feel free to leave.”).
Garcia, however, ignored Campirano's commands and repeatedly attempted to terminate the encounter. In other words, there was no actual submission to Campirano's show of authority. In United States v. Waller, 665 Fed.Appx. 150 (3d Cir. 2016), the Third Circuit addressed a similar scenario where a criminal defendant refused commands to exit his vehicle, claiming he was pulled over by law enforcement for racial reasons and demanding to speak with a supervisor. The court determined that a seizure did not occur until the defendant was forcibly removed from his vehicle. Much like Waller, Garcia did not submit to Campirano's “exercise of authority through either affirmative acts or passive acquiescence.” Id. at 152; see also United States v. Waterman, 569 F.3d 144, 146 n.3 (3d Cir. 2009) (submission to authority “requires, at minimum, that a suspect manifest compliance with police orders.”); United States v. Salazar, 609 F.3d 1059, 1066 (10th Cir. 2010) (driver not seized until he submitted to the trooper's show of authority by obeying the command to get out of his truck). But once Campirano applied physical force to Garcia's person in an attempt to pull him from the vehicle, Garcia was finally seized for Fourth Amendment purposes. See Torres v. Madrid, 141 S.Ct. 989, 993 (2021) (“[T]he application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.”).
Questions of probable cause and reasonable suspicion are questions of law that may be resolved by a court based upon undisputed underlying facts. United States v. Pack, 612 F.3d 341, 349 n.5 (5th Cir.), modified on other grounds, 622 F.3d 383 (5th Cir.2010); Mangieri v. Clifton, 29 F.3d 1012, 1015-16 (5th Cir. 1994) (“[I]n evaluating a claim of qualified immunity, the district court is to make a determination of the objective reasonableness of the official's act as a matter of law.”).
The next question is whether the seizure was objectively reasonable. It is well settled law that if reasonable suspicion of criminal activity exists, an officer can lawfully order an individual out of his vehicle for the safety of the officers. Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977) (“[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable seizures.”). It is also well settled that “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396. And under Texas law, if a person “willfully fails or refuses to comply with a lawful order or direction of a police officer,” that person has committed an offense of section 542.501 of the Texas Transportation Code, which is an arrestable offense. See Tex. Transp. Code § 543.001 (“Any peace officer may arrest without warrant a person found committing a violation” of the Transportation Code.”); Tex. Code Crim. Proc. art. 14.01 (“A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.”). Accordingly, if Campirano arguably possessed reasonable suspicion of criminal activity, his actions did not violate Garcia's clearly established Fourth Amendment rights.
As the Supreme Court has noted, the additional intrusion of asking a validly detained person to step outside his car is “de minimis,” in light of a “weighty interest in officer safety.” Maryland v. Wilson, 519 U.S. 408, 412-13 (1997); see also United States v. Meredith, 480 F.3d 366, 369 (5th Cir. 2007) (“Under Fourth Amendment jurisprudence existing at the time of this incident . . ., a law enforcement officer making a traffic stop could order the driver and any passengers to exit the vehicle pending completion of the stop.”).
In making reasonable-suspicion determinations, a court “must look at the ‘totality of the circumstances' of each case to see whether the detaining officer has a ‘particularized and objective basis' for suspecting legal wrongdoing” at the time of the seizure. United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). “Facts an officer learns after the incident ends-whether those facts would support granting immunity or denying it-are not relevant.” Hernandez v. Mesa, 582 U.S. 548, 554 (2017).
“Any analysis of reasonable suspicion is necessarily fact-specific, and factors which by themselves may appear innocent, may in the aggregate rise to the level of reasonable suspicion.” United States v. Ibarra-Sanchez, 199 F.3d 753, 759 (5th Cir. 1999) (footnote and citations omitted). While “an officer's reliance on a mere ‘hunch' is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Arvizu, 534 U.S. at 274 (citations omitted). The officer's subjective motives do not factor in, but the process nonetheless “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.'” Id. at 273 (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)).
“Reasonable suspicion ‘is dependent upon both the content of the information possessed by police and its degree of reliability.'” Wright I, 57 F.4th at 534 (quoting Alabama v. White, 496 U.S. 325, 330 (1990)). “This is especially true when claimed reasonable suspicion is primarily grounded in information from a tipster.” Id. Factors to consider “in deciding whether a tip provides a sufficient basis” for reasonable suspicion include: “(1) the credibility and reliability of the informant; (2) the specificity of the information contained in the tip or report; (3) the extent to which the information in the tip or report can be verified by officers in the field; and (4) whether the tip or report concerns active or recent activity or has instead gone stale.” United States v. Gomez, 623 F.3d 265, 269 (5th Cir. 2010). “[A]n anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity ....” White, 496 U.S. at 329. But the tip may be found reliable when “the informant (1) asserts eyewitness knowledge of the reported event; (2) reports contemporaneously with the event; and (3) uses the 911 emergency system, which permits call tracing and voice recording.” United States v. Rose, 48 F.4th 297, 303 (5th Cir. 2022).
Because of the proximity of Eagle Pass to the border with Mexico, additional factors may also be taken into account in deciding whether there is reasonable suspicion to stop a vehicle in the border area. See United States v. Brignoni-Ponce, 422 U.S. 873 (1975). These factors include: “(1) the area's proximity to the border; (2) characteristics of the area; (3) usual traffic patterns; (4) the agents' experience in detecting illegal activity; (5) behavior of the driver; (6) particular aspects or characteristics of the vehicle; (7) information about recent illegal trafficking of aliens or narcotics in the area; and (8) the number of passengers and their appearance and behavior.” United States v. Cervantes, 797 F.3d 326, 329 (5th Cir. 2015) (quotations omitted).
With these considerations in mind, a reasonably competent officer could have concluded there was reasonable suspicion. To recount the undisputed facts: (1) Police received a call about a vehicle at an abandoned house; (2) Minutes later, at 6:20 in the morning while it was still dark outside, Bermea encountered Garcia, who was sitting in front of the house in a running vehicle; (3) Garcia implicitly confirmed that the property was abandoned and asserted ownership of the property; (4) Garcia was otherwise uncooperative, providing no documentation to support his claim that he was on his property; and (5) Garcia acted unusually hostile, continuously cursing at Bermea.
When Campirano arrived, he too was responding to the same call about a suspicious vehicle. Campirano was standing aside Bermea and witnessed much of what Bermea saw, such as Garcia sitting in a running truck in the dark, acting both evasive and hostile. Even if he was not aware of all facts known by Bermea, officers can “rely on the collective knowledge doctrine to transfer reasonable suspicion between each other.” United States v. Zuniga, 860 F.3d 276, 283 (5th Cir. 2017).
Because it is disputed whether Garcia was intoxicated, and because the video, when viewed in the light most favorable to Garcia, does not conclusively show that Garcia was intoxicated, the undersigned will refrain from addressing whether there was reasonable suspicion or probable cause that Garcia had violated any alcohol-related statutes, such as driving while intoxicated or public intoxication. The undersigned will likewise refrain from discussing the offense of disorderly conduct, as the video evidence does not conclusively show that Garcia was in a “public place,” a requisite element. Tex. Pen. Code § 42.01. The open container and the controlled substance were found after the seizure and thus are not relevant to the analysis. Hernandez, 582 U.S. at 554.
To be sure, very little of the summary judgment evidence supports a reasonable suspicion of criminal trespass, which occurs when: “(1) a person, (2) without effective consent, (3) enters or remains on the property or in a building of another, (4) knowingly or intentionally or recklessly, (5) when he had notice that entry was forbidden or received notice to depart and failed to do so.” Johnson v. State, 665 S.W.2d 554, 556 (Tex. App. 1984) (citing Tex. Penal Code Ann. § 30.05). There is nothing in the record to indicate that (1) Garcia was present without the effective consent of another, (2) access to the property was restricted by a fence or any other barrier, or (3) a “no trespassing” sign provided notice that entry onto the property was forbidden. See Tex Dep't of Pub. Safety v. Axt, 292 S.W.3d 736, 740 (Tex. App. 2009) (“[A]s a matter of law, no criminal trespass may occur in the absence of notice that entry is prohibited.”). Defendants also failed to submit any evidence of their qualifications and experience as law enforcement officers, or any relevant information about the tipster.
Indeed, Garcia presented evidence that he was present at the property with the consent of the owner.
At most, Defendants point to a nameless and faceless neighbor whose voice is heard on the video recorded during the inventory search of Garcia's vehicle. See Gomez Video. According to the neighbor, he saw Garcia parked by a mobile home located on the property. When Garcia noticed the neighbor, Garcia pulled away and parked in the spot where Defendants later found him. But none of these facts indicate any criminal activity, and they do not establish what Defendants knew prior to their arrival at the property.
Defendants' reliance on Garcia's failure to identify himself is also misplaced. Garcia, at most, failed to identify himself prior to the seizure. A person's “mere refusal to identify oneself to a police officer is not a crime in Texas if the person has not lawfully been placed under arrest.” Sauceda v. City of San Benito, No. 19-40904, 2023 WL 5211650, at *1 (5th Cir. Aug. 15, 2023) (quoting Tex. Penal Code § 38.02(a)). Such a refusal can never supply probable cause to make the initial arrest.” Id., at *6 (citing Crustinger v. State, 206 S.W.3d 607, 610 (Tex. Crim. App. 2006)).
But the ultimate question is whether there was an objective basis to conclude that Garcia was engaged in any sort of criminal activity, e.g. burglary, vandalism, narcotics trafficking, or human trafficking, to name just a few. Keeping that in mind, a reasonable officer could conclude that criminal activity was underfoot. Law enforcement received a tip that a vehicle was at a vacant house, which unquestionably is an area of expected criminal activity. See United States v. Wright, No. 21-40849, 2023 WL 4735307 (5th Cir. July 25, 2023) (“Wright II”). Although the specifics of the phone call may be unknown, Bermea responded minutes later, before dawn, and found Garcia parked in a dark-colored truck in front of the same abandoned house, consistent with what is known about the tip. See Rose, 48 F.4th at 303; see also United States v. McHugh, 639 F.3d 1250, 1257 (10th Cir. 2011) (holding that “the fact that an incident occurred late at night or early on the morning is relevant to the” reasonable suspicion analysis). Garcia also implicitly confirmed that the house was in fact abandoned. See White, 496 U.S. at 329 (factoring in that an anonymous telephone tip was corroborated by police's observation of the suspect).
Garcia's actions were also unusual, where he had been sitting alone in a running vehicle for at least twenty minutes, in the dark, with no one else around. Cf. United States v. Tucker, 184 Fed.Appx. 549, 553 (7th Cir. 2006) (officers investigating an unsubstantiated anonymous tip nevertheless had reasonable suspicion based on defendant “loitering” near an abandoned house in a high-crime area, where officers knew vacant houses were often used to conduct drug deals). He also acted evasively by refusing to cooperate, giving no explanation as to why he was sitting in a truck in front of an abandoned home in the predawn hours. See District of Columbia v. Wesby, 138 S.Ct. 577, 588 (2018) (considering the plausibility of the explanation provided by the suspect); Wright II, 2023 WL 4735307, at *9 (failure to cooperate a factor); cf. Bostick, 501 U.S. at 437 (“[A] refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure”). His combative nature was also unusual, suggesting (1) an attempt to intimidate law enforcement into leaving, or (2) possible intoxication from alcohol or cocaine.
Most importantly, Garcia has not identified any case where the Fifth Circuit or the Supreme Court has found a Fourth Amendment violation under similar enough circumstances to place the matter beyond debate. Notably, this area of the law is highly fact-specific, where despite seemingly minor differences in facts between cases, the Fifth Circuit has reached varying conclusions. Moreover, most of these cases arose in the criminal context where qualified immunity was not an issue.
Compare United States v. Hill, 752 F.3d 1029 (5th Cir. 2014) (no reasonable suspicion to detain a driver parked in front of an apartment building in a high crime area at 11:00 p.m., where passenger got out of the vehicle and quickly walked away when police approached), Hebert v. Maxwell, 214 Fed.Appx. 451 (5th Cir. 2007) (no reasonable suspicion of trespass without any facts suggesting a reason to believe that parking on private property on the highway side of a fence was unauthorized), United States v. Bonds, 268 F.3d 306 (5th Cir. 2001) (no reasonable suspicion based on a general citizen's complaint of people at a vacant home and the lack of evidence of criminal activity), and United States v. Beck, 602 F.2d 726 (5th Cir. 1979) (no reasonable suspicion to detain an individual parked on the side of the road with engine running in a high crime area where (1) the detainee did not offend any traffic ordinance, (2) there was no evidence of recent crimes in the neighborhood, (3) there was no reason to suspect that he was wanted by the police, and (4) there was no other reason to believe that anything unusual was taking place), with Wright II, 74 F.4th 722 (reasonable suspicion based on an anonymous tip reporting a specific car at a specific location giving drugs to “transients”), United States v. Flowers, 6 F.4th 651 (5th Cir. 2021) (finding reasonable suspicion to detain individuals who were parked in a small parking lot connected to an open convenience store at 8:30 p.m., where officers had extensive experience, it was dark outside, officers were patrolling because of a prevalence of violent crimes and burglaries, the car was parked as far as possible from the storefront and obscured from view, and neither stepped out of the vehicle toward the store in a ten to fifteen second period of police observation, United States v. Gutierrez-Parra, 711 Fed.Appx. 752 (5th Cir. 2017) (reasonable suspicion based on the totality of the circumstances), and United States v. Wilson, 342 Fed.Appx. 46, 47 (5th Cir. 2009) (“The officers, who were hired to secure a private parking lot located in a high-crime area, observed Wilson walking in between the parked cars at night concealing something beneath his shirt. Upon noticing the police, Wilson nervously attempted to evade them. These facts objectively gave the officers reasonable suspicion sufficient to effectuate a constitutional stop.").
Garcia also fails to point to a robust consensus of persuasive authority addressing similar facts. In fact, a district court in the Western District of Texas recently found under very similar circumstances that officers did not violate the plaintiff's Fourth Amendment rights by unlawfully seizing him. See Castro v. Kory, SA-20-CV-1022-XR, 2023 WL 2566088 (W.D. Tex. Mar. 17, 2023). Castro is currently on appeal with the Fifth Circuit. But even if Castro was wrongly decided, it emphasizes the difficulty in determining whether specific facts like the ones here create a reasonable suspicion of criminal activity. Although ultimately a close call, the undersigned concludes that based on the inconsistency of existing case law, a reasonably competent officer could have concluded there was reasonable suspicion to detain Garcia.
Other circuits, districts courts, and Texas courts have likewise reached varying conclusions. Compare Gentry v. Sevier, 597 F.3d 838 (7th Cir. 2010) (no reasonable suspicion where officers received report of a suspicious vehicle in which four men were sitting), Liston v. Steffes, 300 F.Supp.2d 742 (W.D. Wis. 2002) (after comparing and contrasting numerous cases from various courts, the court found no reasonable suspicion where car was in a parking lot of a closed fertilizer plant late on a Saturday night and other similar facilities had been burglarized earlier that year, but found no violation of clearly established law), and People v. Freeman, 413 Mich. 492 (1982) (no reasonable suspicion to stop a car parked near a darkened house at 12:30 a.m. with its lights on and motor running in a private parking lot adjoining a race track), with United States v. Salazar, 609 F.3d 1059 (10th Cir. 2010) (reversing and remanding after finding reasonable suspicion where truck was parked in front of a parking lot at 10:00 p.m. next to a business's vehicle, the door opened, and then the driver started to drive away when an officer approached), United States v. Lenoir, 318 F.3d 725 (7th Cir. 2003) (“Specifically, police observation of an individual, fitting a police dispatch description of a person involved in a disturbance, near in time and geographic location to the disturbance establishes a reasonable suspicion that the individual is the subject of the dispatch.”), Pliska v. City of Stevens Point, 823 F.2d 1168 (7th Cir. 1987) (reasonable suspicion where neighbor called the police to report suspicious activities, neighborhood had two recent daytime burglaries, and Pliska refused to explain himself, told officer to go to hell, and refused to identify himself or answer any questions from the officer), United States v. Hall, Crim. No. 2:09-CR-054-WKW, 2009 WL 2132702 (M.D. Ala. July 14, 2009) (reasonable suspicion where defendant drove up to a vacant house located in a hayfield, after midnight, with no lights on), York v. State, 342 S.W.3d 528 (Tex. Crim. App. 2011) (reasonable suspicion of burglary where defendant was parked at 3 a.m. in front of a closed gas station that had been burglarized before and parked too close to the store door with headlights shining and engine running, consistent with a getaway car), Alexander v. State, 879 S.W.2d 338, 342 (Tex. App. 1994) (reasonable suspicion of trespass where individual was at a closed park at 2 a.m., three hours past curfew, and was trying to hide something), and Bobo v. State, 843 S.W.2d 572, 575 (Tex. Crim. App. 1992) (reasonable suspicion where a resident reported two suspicious persons in area where they should not be and officers located the individuals who matched the specific physical description).
Because Garcia was never formally arrested, it is difficult to ascertain exactly when Garcia was under arrest for purposes of the Fourth Amendment. Where an individual is not formally under arrest, a seizure rises to the level of an arrest only if “a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.” United States v. Corral-Franco, 848 F.2d 536, 540 (5th Cir. 1988). The determination is not always an easy one. “Clearly, using some force on a suspect, pointing a weapon at a suspect, ordering a suspect to lie on the ground, and handcuffing a suspect-whether singly or in combination-do not automatically convert an investigatory detention into an arrest requiring probable cause.” United States v. Sanders, 994 F.2d 200, 206 (5th Cir. 1993). As such, in Angulo v. Brown, 978 F.3d 942, 950 (5th Cir. 2020), the court held that removing a person from his vehicle and handcuffing him did not amount to an arrest where the individual refused to exit the vehicle voluntarily on his own. But in Sauceda v. City of San Benito, No. 19-40904, 2023 WL 5211650, at *1, 7 (5th Cir. Aug. 15, 2023), the Fifth Circuit held that when an officer stated, “I'm coming after you, brother,” and “You're going to come with me, brother,” and then proceeded to grab the individual's arm, this amounted to an arrest. Because of Sauceda, it is not entirely clear whether Campirano's strong threat that he was going to extract him out of the vehicle was tantamount to an arrest. Regardless, probable cause arguably existed at that point.
As alluded to earlier, because Bermea and Campirano arguably had reasonable suspicion of criminal activity, Defendants' subsequent acts did not violate Garcia's clearly established Fourth Amendment rights. Namely, when Garcia failed to comply to Campirano's objectively lawful command to exit the vehicle, a reasonable officer could have concluded that there was probable cause to arrest Garcia for violating section 542.501 of the Texas Transportation Code. See Carroll, 800 F.3d at 172 (where the initial detention was objectively reasonable in light of clearly established law, an officer may rely on that reasonableness in determining if probable cause exists for an arrest).
A reasonable law enforcement official could have also concluded there was probable cause to arrest Garcia for interfering with a peace officer's public duties. Section 38.15 of the Texas Penal Code states that a person commits the offense “if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.” § 38.15(a)(1). “Failure to comply with a police officer's instructions at the scene of an offense is sufficient probable cause for an arrest for interference with a peace officer's public duties.” Livingston v. Texas, 632 F.Supp.3d 711, 722 (S.D. Tex. 2022) (citing Childers v. Iglesias, 848 F.3d 412, 415 (5th Cir. 2017)). Although it is true, as Garcia argues, that “it is a defense to prosecution . . . that the interruption, disruption, impediment, or interference alleged consisted of speech only,” see § 38.15(d), Garcia's actions went beyond mere speech, where he repeatedly pulled away from Campirano's attempts to remove him from the vehicle. See Berrett v. State, 152 S.W.3d 600, 603-06 (Tex. App. 2004) (finding sufficient evidence of interference with public duties under similar circumstances).
Campirano could have reasonably believed there was probable cause to arrest Garcia for resisting arrest as well. “A person resists arrests if he ‘intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.'” Zinter v. Salvaggio, 610 F.Supp.3d 919, 939 (W.D. Tex. 2022) (quoting Tex. Penal Code § 38.03(a)). Importantly, “[i]t is no defense to prosecution under [section 38.03] that the arrest or search was unlawful. § 38.03(b). Although mere refusal to cooperate with law enforcement is not enough, “pulling out of an officer's grasp is sufficient to constitute resisting arrest.” Zinter, 610 F.Supp.3d at 939 (quoting Ramirez v. Martinez, 716 F.3d 369, 376 (5th Cir. 2013)). Crucial to the facts here, “the act of resisting can supply probable cause for the arrest itself.” Ramirez, 716 F.3d at 376 (citing Padilla v. Mason, 169 S.W.3d 493, 504 (Tex. App. 2005)).
The video evidence indisputably shows Garcia repeatedly pulling out of Campirano's grasp. Even if Campirano did not intend to arrest Garcia at that point, Garcia's act of resisting then supplied the probable cause for the arrest itself. See id. This is true even if Campirano's commands to exit the vehicle were in fact unlawful. See § 38.03(b). Cf. Sauceda, 2023 WL 5211650, at *7-8 (cautioning that section 38.03 does not apply if an individual is unlawfully arrested prior to any act of resistance, noting, “Even if an unlawful arrest becomes lawful moments later by virtue of the arrestee's resistance, there is no reason why the officer cannot be held liable for the unlawful part.”).
Because Campirano arguably had probable cause to arrest Garcia for three criminal offenses, he did not violate Garcia's clearly established rights in seizing him. And because Bermea and Cantu acted on a reasonable basis of probable cause in handcuffing Garcia and ordering him away, they too did not violate Garcia's clearly established rights. See Deville v. Marcantel, 567 F.3d 156, 166 (5th Cir. 2009) (quoting Rogers v. Powell, 120 F.3d 446, 455 (3d Cir. 1997)) (“[W]here a police officer makes an arrest on the basis of oral statements by fellow officers, an officer will be entitled to qualified immunity from liability in a civil rights suit for unlawful arrest provided it was objectively reasonable for him to believe, on the basis of the statements, that probable cause for the arrest existed.”). Therefore, Defendants are entitled to summary judgment for Garcia's unlawful detention and false arrest claims.
C. Excessive Force
The undersigned will next address whether Defendants are entitled to summary judgment for Garcia's excessive force claim. To overcome Defendants' qualified immunity defense for this claim, Garcia “must show ‘(1) an injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.'” Poole v. City of Shreveport, 691 F.3d, 624, 628 (5th Cir. 2012) (quoting Ontiveros v. City of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009)). The injury need not be substantial but must be more than de minimis. Hanks v. Rogers, 853 F.3d 738, 744-45 (5th Cir. 2017). “Excessive force claims are necessarily fact-intensive; whether the force used is ‘excessive' or ‘unreasonable' depends on ‘the facts and circumstances of each particular case.'” Deville, 567 F.3d at 167 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
All claims pertaining to law enforcement officers' excessive use of force “in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard, rather than under a ‘substantive due process' approach.” Petta v. Rivera, 143 F.3d 895, 907 (5th Cir. 1998) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).
Garcia did not submit sufficient evidence to overcome Defendants' qualified immunity defense. First, Garcia failed to submit any medical evidence of an injury. This alone is fatal to his claim. See Brooks v. City of West Point, 639 Fed.Appx. 986, 990 (5th Cir. 2016).
Second, Garcia failed to present evidence that the use of force was clearly unreasonable. Again, “Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396. “Officers may consider a suspect's refusal to comply with instructions during a traffic stop in assessing whether physical force is needed to effectuate the suspect's noncompliance.” Deville, 567 F.3d at 167. “However, officers must assess not only the need for force, but also ‘the relationship between the need and the amount of force used.'” Id. (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999)).
“The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. Factors to consider include “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Id. at 396-97. “A use of force is more likely to be reasonable when officers use ‘measured and ascending' actions that correspond to a suspect's level of compliance or resistance.” Angulo v. Brown, 978 F.3d 942, 950-51 (5th Cir. 2020) (quoting Galvan v. City of San Antonio, 435 Fed.Appx. 309, 311 (5th Cir. 2010)).
Here, Garcia refused to exit the vehicle, despite numerous commands from Campirano to do so. As previously explained, at this point, Campirano arguably had probable cause to arrest Garcia for at least three criminal violations and was authorized to use some amount of force to effect that arrest. The video evidence indisputably shows that Campirano used an objectively reasonable amount of force necessary to remove Garcia from the vehicle, simply pulling Garcia onto the ground using his own strength and no weapon of any sort, despite “escalating verbal and physical resistance.” Poole, 691 F.3d at 629.
Once Garcia was on the ground, Campirano and Bermea attempted to use handcuffs to secure Garcia, which are authorized “for the safety of others.” See, e.g., Michigan v. Summers, 452 U.S. 692, 702-03 (1981) (noting that handcuffs are authorized while a proper search is conducted in order to (1) prevent flight in the event that incriminating evidence is found, (2) minimize the risk of harm to the officers, and (3) to facilitate the orderly completion of the search); United States v. Sanders, 994 F.2d 200, 207-08 (5th Cir. 1993) (concluding that officers were authorized to require an occupant to lie face down on the ground and to use handcuffs because “his ability to fight or flee is significantly reduced, thereby helping to preserve the status quo”). Garcia, however, repeatedly resisted being handcuffed, escalating his physical resistance until Campirano threatened him with pepper spray. Once again, Defendants used an objectively reasonable amount of force in handcuffing Garcia, considering his active resistance. Because Garcia has not overcome Defendants' qualified immunity defense, Defendants are entitled to summary judgment for this claim.
D. Unlawful Search
Although Defendants did not seek summary judgment for Garcia's unlawful search claim, the undersigned will nonetheless sua sponte address whether Defendants are entitled to summary judgment. See Fed.R.Civ.P. 56(f). In support of his unlawful search claim, Garcia alleges that Bermea and Cantu violated his Fourth Amendment rights by illegally searching his truck while on private property, without probable cause, and without a warrant or any connection to a crime.
Rule 56(f) allows a court to grant summary judgment on grounds not raised by a party, if the parties are given “notice and a reasonable time to respond ....” This report and recommendation provides sufficient notice to Garcia and sufficient time to respond. Cooks v. United States, No. 13-CV-2718, 2015 WL 4385844, at *2 (W.D. La. July 6, 2015) (citing Magouirk v. Phillips, 144 F.3d 348, 359 (5th Cir. 1998)); Shariff v. Evans, No. 1:16CV131-HSO-JCG, 2017 WL 4010876, at *2 n.3 (S.D.Miss. Sept. 12, 2017).
To the extent that Garcia now argues that Campirano conducted an unlawful search in opening the door of the vehicle, this claim is not properly before the Court. See Cutrera v. Bd. of Sup'rs of La. St. Univ., 429 F.3d 108, 113 (5th Cir. 2005) (“A claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court.”). Even so, there is no merit to this claim. Opening a car door during a Terry stop is a search under the Fourth Amendment and must be reasonable under the circumstances. United States v. Meredith, 480 F.3d 366, 369 (5th Cir. 2007) (“Opening a vehicle's door or piercing the interior airspace constitutes a search.”). “Reasonable suspicion must exist prior to a search.” Id. Because there was probable cause to arrest Garcia for failure to comply, Campirano could lawfully open the car door to effect an arrest.
“While the interior of an automobile is not subject to the same expectations of privacy that exist with respect to one's home, a car's interior as a whole is nonetheless subject to Fourth Amendment protection from unreasonable intrusions by the police.” New York v. Class, 475 U.S. 106, 114-15 (1986). Accordingly, a warrantless search of a person or property is per se unreasonable under the Fourth Amendment, “subject only to a few specifically established and well delineated exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372 (1993) (quoting Thompson v. Louisiana, 469 U.S. 17, 19-20 (1984)). An officer is entitled to qualified immunity for an unlawful search claim if, “in light of the clearly established principles governing warrantless searches, he could, as a matter of law, reasonably have believed that the search . . . was lawful.” Anderson v. Creighton, 483 U.S. 635, 641 (1987).
After carefully examining the summary judgment evidence, the video evidence and offense reports conclusively show that Bermea and Cantu, as well as Gomez, were conducting an inventory search. An inventory search is an exception to the Fourth Amendment's warrant requirement for an automobile search. United States v. Prescott, 599 F.2d 103, 105 (5th Cir. 1979). As part of law enforcement's “community caretaking functions,” automobiles may be impounded and the contents inventoried without a search warrant. South Dakota v. Opperman, 428 U.S. 364, 368-70 (1976). “Inventory searches protect the vehicle and its content, safeguard the police against claims of lost property, and protect the police and public from possible danger.” Prescott, 599 F.2d at 105.
Importantly, this caretaking function is “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973); Colorado v. Bertine, 479 U.S. 367, 371 (1987) (“The policies behind the warrant requirement, and the related concept of probable cause, are not implicated in an inventory search ....”). In other words, Garcia's allegations pertaining to probable cause are entirely irrelevant to the analysis as to whether the inventory search was lawful. Garcia raises no additional allegations to even suggest that the inventory search itself was unlawful. Because Garcia's allegations fall outside the ambit of an unlawful inventory search claim, Defendants are entitled to summary judgment for this claim as well.
“[A]n inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990). Therefore, an inventory search must be conducted according to standard policies and practices “which sufficiently limit the discretion of law enforcement officers to prevent inventory searches from becoming evidentiary searches.” United States v. Como, 53 F.3d 87, 92 (5th Cir.1995) (quoting United States v. Andrews, 22 F.3d 1328, 1336 (5th Cir. 1994)).
E. Probable Cause Affidavit
The undersigned will also sua sponte address Garcia's claim that Defendants submitted false affidavits to a magistrate judge. The facts pertaining to this claim are sparse, where Garcia makes highly conclusory allegations with no additional factual support and no evidentiary support.
No matter the true underlying basis of this claim, the undisputed evidence shows that Defendants are entitled to qualified immunity. Since Franks v. Delaware, 438 U.S. 154 (1978), it has been clearly established law that an individual's Fourth Amendment rights are violated if an officer, in submitting a probable cause affidavit, includes “a false statement knowingly and intentionally, or with reckless disregard for the truth,” and “the allegedly false statement is necessary to the finding of probable cause.” Id. at 155-56. “To determine if an allegedly false statement is ‘necessary to the finding of probable cause,' the court must consider the affidavit as if those false statements were removed and consider whether the ‘remaining content' would still support a probable cause finding.” Garcia v. Orta, 47 F.4th 343, 352 (5th Cir. 2022). Qualified immunity is warranted “if the corrected affidavit would have supported a reasonable officer's belief that probable cause existed.” Id.
What was not clearly established at the time of the encounter was whether an officer who violates Franks may “escape liability by retroactively constructing a justification for a warrantless arrest based on a different crime.” Arizmendi v. Gabbert, 919 F.3d 891, 903 (5th Cir. 2019). On March 6, 2019, shortly after Garcia's arrest, the Fifth Circuit in Arizmendi finally answered this question, holding that an officer could not, but nonetheless granted summary judgment based on qualified immunity after finding that the law was not clearly established at the time. See id.
Here, it was objectively reasonable to believe there was probable cause to arrest Garcia for at least three charges. Therefore, even if Defendants intentionally lied or were reckless in submitting a probable cause affidavit, they are nonetheless shielded from liability. Because Defendants did not violate clearly established law, Defendants are entitled to summary judgment for Garcia's Franks claim.
IV. CONCLUSION
Because Defendants are entitled to qualified immunity, the undersigned RECOMMENDS that Defendants' motion for summary judgment be GRANTED and judgment be entered in favor of Defendants for all claims.
V. NOTICE
The United States District Clerk shall serve a copy of this report and recommendation on all parties either by (1) electronic transmittal to all parties represented by an attorney registered as a filing user with the Clerk of Court pursuant to the Court's Procedural Rules for Electronic Filing in Civil and Criminal Cases; or (2) certified mail, return receipt requested, to any party not represented by an attorney registered as a filing user. Pursuant to 28 U.S.C. § 636(b)(1), any party ho wishes to object to this report and recommendation may do so within fourteen days after being served with a copy. Failure to file written objections to the findings and recommendations contained in this report shall bar an aggrieved party from receiving a de novo review by the District Court of the findings and recommendations contained herein, see 28 U.S.C. § 636(b)(1)(c), and shall bar an aggrieved party from appealing “the unobjected-to proposed factual findings and legal conclusions accepted by the District Court” except on grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996).