Brown v. Sudduth

Case: 09-60037 Document: 00511791616 Page: 1 Date Filed: 03/16/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 16, 2012

No. 09-60037

Lyle W. Cayce

Clerk

ERIC LAQUINNE BROWN,

Plaintiff-Appellant

v.

ROBERT G SUDDUTH, Investigator, Pontotoc City Police, in Individual and

Official Capacities; MIKE MCGOWAN, Investigator, Pontotoc County, in

Individual and Official Capacities; FRANKY DANIELS, Ex-Sheriff, in Individual

and Official Capacities; LARRY POOLE, Sheriff, in Individual and Official

Capacities,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

Eric Laquinne Brown, a Mississippi state prisoner who is serving a life

sentence for murder and manslaughter, appeals from the judgment in favor of

the defendants in his Section 1983 suit. Proceeding pro se at trial and now on

appeal, Brown alleged that his Fourth Amendment rights were violated (1) by

delay in holding a probable cause determination after his arrest and (2) by his

warrantless arrest. After the jury announced a verdict for the defendants,

Brown filed a Rule 50(b) motion for a judgment as a matter of law. The district

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No. 09-60037

court denied the motion and entered judgment on the verdict. Brown timely

appeals, raising numerous issues. We AFFIRM.

BACKGROUND

Pontotoc is a city of about 5,500 people in northeast Mississippi. Early on

Saturday morning, January 23, 1999, the Pontotoc Police Department received

a call from the Memphis Police Department. Pontotoc Police Investigator Robert

Sudduth returned the call soon after he began work at 6:00 a.m. Sudduth

learned that Memphis police officers had discovered the body of Shorelonda

Moore inside a partially burned car. The victim was dressed in a McDonald’s

restaurant uniform. The car bore a Pontotoc County license plate and belonged

to the victim, who lived in the City of Pontotoc and worked at the local

McDonald’s.

Immediately, the investigation centered on Eric Brown, the plaintiff in the

present suit. Pontotoc police were familiar with Moore and Brown due to several

domestic disputes between them. Moore and another woman, Tenille Johnson,

had previously each had a child by Brown. Moore was over six-months pregnant

with a second of Brown’s children when she died. Brown married Johnson only

days before Moore’s death.

As the investigation progressed that morning, Sudduth learned from the

McDonald’s manager that Moore had worked the previous day. The manager

stated that Brown had telephoned the restaurant several times on Friday, and

that Brown and Moore were to meet after Moore’s shift. One of Moore’s friends

told investigators that Moore and Brown had plans to leave town for the

weekend. Brown’s neighbor told Sudduth that Brown had been away from home

Friday night, and officers could not locate Brown at home Saturday morning.

On Saturday afternoon, a Pontotoc officer stopped a vehicle for failing to

display a license plate. Brown was the driver, traveling with his wife Johnson.

By then, Brown was wanted for questioning in connection with Moore’s death.

Sudduth and other officers were dispatched to the scene. Brown at trial claimed

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he was arrested during the traffic stop. The defendants introduced evidence

Brown was arrested after being taken to the police station. The arrest report

showed his arrest was at 2:00 p.m. It was not until Tuesday at 8:30 a.m. that a

municipal judge found probable cause to arrest Brown.

Brown was indicted for the murder of Shorelonda Moore and for

manslaughter due to the death of her unborn child. He pled guilty in 1999 and

is currently serving a life sentence in a Mississippi state prison. In January

2002, he filed this Section 1983 claim for violation of his Fourth and Fourteenth

Amendment rights. See 42 U.S.C. § 1983. There have been three earlier appeals

from dismissals of his claims. Each time we reversed. The appeal we resolve

today is the first taken from a judgment entered after a jury trial.

Brown’s pro se brief presents 13 issues. The principal argument meriting

analysis is that no bona fide emergency or other extraordinary circumstance

existed preventing him from receiving a probable cause determination within 48

hours of his arrest. Relatedly, Brown challenges his warrantless arrest.

In less detailed fashion, we also review his remaining issues. These

include that the district court erred by informing the jury venire that Brown was

an inmate, that certain jury instructions were erroneous, that a deposition

should not have been admitted into evidence, that reversible error occurred with

other evidentiary rulings, that the court’s response to a jury note was error, that

defense discovery violations necessitated a pre-trial conference, and that his

motion for court-issued witness subpoenas should have been granted.

Not presented is the question that usually must be answered in a case

such as this of whether “a judgment in favor of the plaintiff would necessarily

imply the invalidity of his conviction or sentence; if it would, the complaint must

be dismissed unless the plaintiff can demonstrate that the conviction or sentence

has already been invalidated.” Heck v. Humphrey, 512 U.S. 477, 487 (1994).

Two of Brown’s earlier appeals were from district court rulings that Heck barred

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his claim of an illegal arrest; each time we reversed.1 No party raised the issue

again on remand or in the briefing on this appeal. The parties have treated Heck

as if it were sufficiently addressed in the earlier appeals. We believe it was.

DISCUSSION

Brown argues the district court should have entered judgment as a matter

of law on his claims that his constitutional rights were violated when he was

arrested without a warrant and when he was incarcerated for 66 hours before

a magistrate determined there was probable cause for the arrest.

This court gives de novo review to a district court’s denial of a motion for

judgment as a matter of law. Brennan’s, Inc. v. Dickie Brennan & Co., 376 F.3d

356, 362 (5th Cir. 2004). Such a judgment is proper when “a reasonable jury

would not have a legally sufficient evidentiary basis to find for the party on that

issue.” Fed. R. Civ. P. 50(a). This will only occur if “the facts and inferences

point so strongly and overwhelmingly in the movant’s favor” that jurors could

not reasonably have reached a contrary verdict. Dickie Brennan & Co., 376 F.3d

at 362. We credit the non-moving defendant’s evidence and “disregard all

evidence favorable to [the plaintiff] that the jury is not required to believe.”

Coffel v. Stryker Corp., 284 F.3d 625, 631 (5th Cir. 2002) (quotation marks and

citation omitted). After a jury trial, our standard of review is “especially

deferential.” Brown v. Bryan Cnty., Okla., 219 F.3d 450, 456 (5th Cir. 2000).

I. Timely Judicial Determination of Probable Cause

In 1975, the Supreme Court held that the Fourth Amendment requires a

fair determination of probable cause to be made “promptly after arrest.”

1

In 2002, we held that the district court’s dismissal of the complaint under Heck was

premature. Brown v. Subbuth, 57 F. App’x 210 (chart), 2002 WL 31956168, at *1 (5th Cir.

2002) (per curiam) (Officer Sudduth’s name as defendant later corrected by court order). In

2007, we reversed another dismissal, rejecting “that the proof required to establish Brown’s

unlawful arrest claim necessarily would imply the invalidity of his underlying murder

conviction.” Brown v. Sudduth, 255 F. App’x 803, 806 (5th Cir. 2007) (per curiam).

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Gerstein v. Pugh, 420 U.S. 103, 125 (1975). Sixteen years later, the Court

endeavored “to articulate more clearly” what the Fourth Amendment required.

Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).

This caselaw created two distinct presumptions. “Judicial determinations

of probable cause within 48 hours of arrest will, as a general matter, comply with

the promptness requirement of Gerstein.” Id.; see also Powell v. Nevada, 511

U.S. 79, 83 (1994). Delays less than 48 hours also can violate an arrestee’s

rights when “unreasonable,” that is, “for the purpose of gathering additional

evidence to justify the arrest, a delay motivated by ill will against the arrested

individual, or delay for delay’s sake.” McLaughlin, 500 U.S. at 56. Any probable

cause determination before the 48-hour mark is presumptively reasonable and

the burden of showing otherwise falls to the person arrested. Id. In evaluating

such contentions, “courts must allow a substantial degree of flexibility.” Id.

Beyond 48 hours, “the calculus changes.” Id. at 57. In that situation, “the

burden shifts to the government to demonstrate the existence of a bona fide

emergency or other extraordinary circumstance.” Id.

The Court acknowledged that nothing in “the Constitution compels a

specific time limit.” McLaughlin, 500 U.S. at 56; see 3 LaFave, Search and

Seizure § 5.1(g) at 58 (4th ed. 2004). Also the Court rejected the view that under

Gerstein “a probable cause determination [was] to be made as soon as the

administrative steps incident to arrest were completed.” McLaughlin, 500 U.S.

at 54 (emphasis in original) (quotation marks and citation omitted).

We give pro se briefs a liberal construction. Mayfield v. Tex. Dep’t of

Criminal Justice, 529 F.3d 599, 604 (5th Cir. 2008). Liberally construed,

Brown’s brief presents three Fourth Amendment questions relevant to the Rule

50 motion. One is that there were no extraordinary circumstances that

warranted an exception to the 48-hour rule. A second argument is that the delay

here was for impermissible reasons. The third claim we examine, in Part II of

the opinion, is that Brown’s warrantless arrest was unconstitutional.

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1. Extraordinary Circumstances

A foundational fact is how long the delay was from arrest until the

probable cause determination. Officer Sudduth testified that Brown was not

arrested at the traffic stop, was given his Miranda warnings at the police station

around 2:00 p.m., and the arrest occurred at about that time. Rational jurors

would be entitled to find the officer’s statements accurate as to the time of

arrest. See Dickie Brennan & Co., 376 F.3d at 362. Brown claimed he was

arrested during the traffic stop, apparently only 15 to 30 minutes earlier.

The judicial determination of probable cause was made at 8:30 a.m. on

Tuesday, 66.5 hours after Brown’s arrest. The jury was instructed on the need

to have a determination within 48 hours, and if not, for “an emergency or other

extraordinary circumstance” to have prevented an earlier determination.

We summarize the relevant evidence. Pontotoc police rarely had to

investigate a murder. Sudduth testified there had been only two murders since

1985. Beginning when the body was recovered in Memphis, two police

departments – one from Tennessee and one from Mississippi – were working in

tandem to assess whether Moore had been murdered in Memphis, in the City of

Pontotoc, or in the county of Pontotoc outside of the city.

The municipal judge needed a basis to believe the murder occurred in his

city. A state statute provides that persons “arrested for a violation of law within

the municipality may be brought before [a municipal judge] for initial

appearance.” Miss. Code Ann. § 21-23-7 (1972). A Mississippi court rule

provides that the initial appearance is the occasion for the determination of

probable cause. Miss. Unif. Cir. and Cnty. Ct. R. 6.03. On Tuesday, a Pontotoc

municipal judge issued warrants for Brown’s arrest. Evidence to justify

presenting Brown’s case to a judge in Pontotoc was needed.

The authority of law enforcement officers to make the initial arrest

without a warrant comes from a different statute. Miss. Code Ann. § 99-3-7

(1972). The statute contains no explicit geographical limitation on where the

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crime had to occur in order for the arrest to be made by Mississippi law

enforcement officers.2 Even were state courts to imply a limitation on arrest

that was not followed here, violations of state law do not – “without more” –

deprive federal rights redressable under Section 1983. Miller v. Carson, 563

F.2d 757, 760 n.7 (5th Cir. 1977) (citing Screws v. United States, 325 U.S. 91,

108-09 (1945)). Related is Brown’s argument that the district court erred by

excluding evidence on the substantive demands of Mississippi Uniform Circuit

and County Rule 6.03 on initial appearances. If this state rule creates

procedures that are different from the obligations arising from Gerstein and

McLaughlin, then they too, without more, are not the basis for a Section 1983

claim.

Officer Sudduth testified that he determined on Monday, during the

interview of Brown’s wife, Tenille Johnson, that the murder occurred in

Pontotoc. Her interrogation started at 1:00 p.m. on Monday. She admitted

seeing Moore’s body “slumped over in the seat” of Brown’s vehicle near the West

Town Cafe in Pontotoc. From the car she drove, following Brown while they both

drove to Memphis, she “never saw [Moore] move.” It was “pretty close to the

evening” before Johnson’s interview was finished.

Q. So Eric Brown was driving around with a dead body?

A. [Sudduth] Yes, sir. That’s what it appeared to [Tenille Johnson]

at that time.

Q. Okay. So this was on the 25th. Did you do anything on the 25th

to try and get this information in front of a judge?

A. This new information . . . this was firsthand information, the

closest to the facts that we thought at that time was the truth. . . .

I remember before we finally ended, at that time, I felt like it was

time to go ahead and at least talk to the judge, get an arrest

2

Some state statutes expressly address the authority to arrest for crimes occurring out

of state. 2 William E. Ringel, Searches and Seizures & Arrests and Confessions § 23:10 (2d ed.

2011). The Mississippi statute is silent.

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warrant issued. And he went out of the room, used the telephone,

and got ahold of our municipal judge, Judge Henry.

Q. Now, who went out of the room and called the judge?

A. Captain Farris did.

No one asked Sudduth to state the time when the municipal judge was

telephoned. The municipal judge responded that he had “prior commitments

that he had to take care of and advised that he would run by the office the first

thing the next morning when the office opened.” When the police office opened

at 8:00 a.m. on Tuesday, Sudduth presented an affidavit to the court clerk. The

judge arrived 30 minutes later, examined the affidavit, and conferred with

Sudduth about the crime. Probable cause may be determined “by a magistrate

in a nonadversary proceeding on hearsay and written testimony.” Gerstein, 420

U.S. at 120. The municipal judge determined there was probable cause and

authorized arrest warrants for murder and manslaughter.

There was little on which jurors could rely to find that an effort to contact

the municipal judge was made prior to the passage of 48 hours after the arrest.

Thus, there are two delays of potential significance. The first is the failure even

to try to contact a magistrate until more than 48 hours from the arrest. The

other is the additional delay that occurred after a judge was contacted due to his

unavailability until the next morning.

We note preliminarily that there was no evidence of a history or policy in

the Pontotoc Police Department of not seeking a magistrate’s review if the need

arose at inconvenient times. In both Gerstein and McLaughlin, objectionable

policies at the state and county levels were the moving force behind those

opinions. See 3 LaFave, Search and Seizure § 5.1(g) at 53-54. For example

under the Florida system reversed in Gerstein, “a person could be arrested

without a warrant and subsequently put on trial . . . all without a preliminary

hearing or other judicial determination of probable cause.” Id. § 5.1(g) at 54. In

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McLaughlin, the County of Riverside had a policy of no magistrate-access on

weekends and holidays. See McLaughlin, 500 U.S. at 47.

We now examine whether the events causing the delay could be considered

extraordinary. Police were concerned about their authority to get a probable

cause determination on a crime that may not have occurred within the city. The

Supreme Court has said that “delay motivated by ill will” is unreasonable. Id.

at 56. There was no evidence that ill will or pretext underlay the effort to

determine whether the crime occurred in Pontotoc.

In addition, Brown was not arrested without probable cause and then held

“for the purpose of gathering additional evidence to justify the arrest.” Id.

Holding someone for that reason is an improper restraint when authorities do

not have reasonable grounds to believe that person is guilty of an offense

justifying an arrest. See Maryland v. Pringle, 540 U.S. 366, 370 (2003). “It is

not the function of the police to arrest . . . and to use an interrogating process at

police headquarters in order to determine whom they should charge before

committing magistrate on ‘probable cause.’” Mallory v. United States, 354 U.S.

449, 456 (1957), limited on other grounds, Corley v. United States, 556 U.S. 303,

321-22 (2009).

Once police did have fairly clear evidence that Brown committed the crime

in their jurisdiction, we assume at least 50 hours had passed since the arrest.

There is evidence that almost immediately, a magistrate was contacted. The

magistrate was unavailable then, necessitating an overnight delay. In viewing

the legitimacy of that delay, we must not ignore “practical realities” beyond the

control of the police. McLaughlin, 500 U.S. at 57.

We also weigh that jurors made a decision on reasonableness. Some of our

sister circuits have held that, absent evidence of an impermissible purpose,

whether a particular length of detention is reasonable “is a question best left

open for juries to answer based on the facts presented in each case.” Chortek v.

City of Milwaukee, 356 F.3d 740, 747 (7th Cir. 2004) (quotation marks and

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citation omitted); Berry v. Baca, 379 F.3d 764, 769 (9th Cir. 2004). There was

evidence on which jurors could rely that only a brief time passed beyond 48

hours when police resolved the uncertainties about jurisdiction, and police acted

promptly thereafter by seeking a magistrate. The subsequent overnight delay

was the result of the magistrate’s unavailability.

These reasons could be seen as extraordinary. Brown argues instead that

these reasons for delay are impermissible. We now turn to that argument.

2. Unreasonable Conduct and Probable Cause to Arrest

Brown alleges that he was arrested for a traffic offense, then held so an

investigation into the murder could occur. He relies on another court’s

conclusion that police cannot delay the probable-cause inquiry in order to

investigate the suspect’s participation in crimes other than those forming the

basis for arrest. See United States v. Davis, 174 F.3d 941, 945 (8th Cir. 1999).

There is scant evidence, though, that Brown was arrested for driving

without proper license plates and then held while being investigated for murder.

The arrest report itself, dated Saturday at 2:00 p.m., stated Brown was arrested

for the murder. There was a substantial basis by that point to arrest him: (i)

Brown’s recent history of violence toward Moore; (ii) the McDonald’s manager’s

report that Brown and Moore had argued repeatedly that Friday and had plans

to travel together that evening; (iii) information from Moore’s mother that the

pregnant victim failed to return home Friday, as well as representations from

a neighbor that Brown was neither home when the neighbor retired to bed at

2:00 a.m., nor on Saturday morning; and (iv) the victim’s friend’s corroboration

that Moore had weekend plans with Brown.

These facts, all known to Officer Sudduth before Brown’s arrest, satisfied

the threshold for probable cause of guilt of the crimes, namely, a “fair

probability” that Brown was responsible for Moore’s murder and the death of her

unborn child. United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999); see

Miss. Code Ann. § 97-3-19(a) (1999) (outlawing the “killing of a human being .

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. . [w]hen done with deliberate design”); id. § 97-3-37 (criminalizing the “willful

killing of an unborn quick child” as manslaughter). “Probable cause exists when

the facts available at the time of the arrest would support a reasonable person’s

belief that an offense has been . . . committed and that the individual arrested

is the guilty party.” United States v. Hearn, 563 F.3d 95, 103 (5th Cir. 2009)

(quotation marks and citation omitted).

The delay was not for any reason previously recognized as impermissible.

Instead, delay was for the purpose of discovering whether Brown committed his

crimes within the officers’ jurisdiction. We are not concluding that the indefinite

holding of a prisoner while jurisdictional doubt is resolved can be justified, only

that the few hours beyond 48 that passed here before seeking a magistrate’s

ruling could be found by jurors not to violate the Fourth Amendment. We are

also not concluding that any jurisdictional dilemma will excuse a delay. As

summarized for the jury during closing argument:

[Police] knew a murder had taken place all right. They had a young

woman dead. There was no question about the crime. It was just

a question about where . . . . And that caused a jurisdictional issue.

Which police department? Which law enforcement agency handles

it? . . . In all [Sudduth’s] years working for the Pontotoc Police

Department, there’s [sic] been two murders, and this was one of

them. And he had never had anything like this.”

Police were diligent once jurisdiction was determined, and then confronted the

practical reality of having to wait overnight for a magistrate.

On these facts, jurors were not prohibited from finding delay was justified

as an “emergency” or “extraordinary circumstance” due to law enforcement’s late

discovery of facts to support that the crime occurred within the relevant

jurisdiction. McLaughlin, 500 U.S. at 57.

II. Illegal Arrest Claim & Other Issues

Brown also claims he was subjected to an illegal arrest. Police may arrest

a suspect “in a public place without a warrant if they have probable cause to

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believe that the individual committed a felony.” Garcia, 179 F.3d at 268 (citing

United States v. Watson, 423 U.S. 411, 423-24 (1976)). This principle explains

why the district court was correct not to attribute significance in its jury charge

to Brown’s arrest having been warrantless. The facts already recounted

furnished probable cause, for which hearsay can be used. United States v.

McCarty, 36 F.3d 1349, 1356 (5th Cir. 1994). Brown also argues that police

needed to prepare sworn affidavits before the arrest. His argument misreads the

Fourth Amendment, which only specifies that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV. By

its plain terms, the Amendment requires an oath or affirmation when a warrant

is sought and has no application to the warrantless arrest for a felony.

We reject Brown’s myriad arguments concerning alleged trial errors.

Brown did not object to the errors and can succeed only if he can show error that

is plain and affected his substantial rights; if that much is shown, then this court

has discretion to correct if leaving the error undisturbed would “seriously affect[]

the fairness, integrity, or public reputation of judicial proceedings.” United

States v. Mason, 668 F.3d 203, 208 (5th Cir. 2012) (quotation marks and citation

omitted). Brown failed to show that the district court committed plain error

by informing the jury venire that Brown was an inmate and a convicted felon.

Throughout the trial, Brown himself discussed that he was an inmate. We

disagree with Brown that instruction one was confusing. It was intelligible in

defining probable cause for an arrest and detailing when an arrest could be

made. Instruction four also was valid, as it accurately stated the law under

Gerstein and McLaughlin and tracked the language from Baker v. McCollan, 443

U.S. 137, 143 (1979).

The court did not abuse its discretion in (1) allowing the defendants to

impeach Brown with his deposition testimony, (2) refusing to allow Brown to

admit affidavits purportedly undermining Sudduth’s testimony, or (3) denying

Brown’s request for subpoenas. See Learmonth v. Sears, Roebuck & Co., 631

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F.3d 724, 733 (5th Cir. 2011); United States v. Gonzales, 79 F.3d 413, 424-25 (5th

Cir. 1996).

Brown’s contention that the district court erred in presenting the issue of

qualified immunity to the jury is meritless. A jury may be given the issue of

qualified immunity if that defense was not resolved on summary judgment.

Melear v. Spears, 862 F.2d 1177, 1184 (5th Cir. 1989).

It was not an abuse of discretion by the district court, after receiving a jury

note and hearing counsels’ arguments, not to define the term “judicial

determination” beyond what the original instructions conveyed. We review a

judge’s response to a jury note for an abuse of discretion and for harmfulness of

any error. United States v. Ramos-Cardenas, 524 F.3d 600, 610 (5th Cir. 2008).

There was no abuse of discretion. Finally, the record does not support Brown’s

allegation that the defendants violated discovery disclosure rules.

The motions to file untimely reply briefs and to amend exhibits are

GRANTED. The judgment is AFFIRMED.

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