Kermit Rogers v. Lee County, Mississippi

Case: 16-60537 Document: 00513937385 Page: 1 Date Filed: 04/03/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 16-60537 FILED

April 3, 2017

Lyle W. Cayce

KERMIT O. ROGERS, Clerk

Plaintiff - Appellant

v.

LEE COUNTY, MISSISSIPPI; CITY OF TUPELO, MISSISSIPPI; JIM H.

JOHNSON, In his Official Capacity as Sheriff of Lee County, Mississippi;

SAMUEL T. WARREN, In his Individual capacity as a Lee County Sheriff’s

Department Law Enforcement Officer; PAUL HOWELL, In his individual

capacity as a Lieutenant with the city of Tupelo Police Department/North

Mississippi Narcotics Unit,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:13-CV-243

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:*

Plaintiff-Appellant Kermit O. Rogers appeals the district court’s final

judgment dismissing all of his claims against Defendants-Appellees Sam

Warren and Paul Howell in their individual capacities; the sheriff of Lee

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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County in his individual capacity; the City of Tupelo, Mississippi; Lee County,

Mississippi; and the North Mississippi Narcotics Unit. For the reasons set out

below, we REVERSE the dismissal of his claims against Warren and Howell

relating to the warrantless search but otherwise AFFIRM.

I. Background 1

In 2009, Plaintiff-Appellant Kermit O. Rogers was the subject of a valid

search warrant allowing the search of the following property: “320 CR 401,

Shannon, Lee County, Mississippi, together with all approaches and

appurtenances thereto. Also, all vehicles and out buildings on the property.”

The officers found 5.89 grams of crack cocaine in the house located on 320 CR

401, as well as 189.73 grams of crack cocaine in a red truck parked near a

building some distance away and visibly identified as 320A CR 401.

The State of Mississippi only charged Rogers with three sales of crack

cocaine, not for the crack cocaine found during the execution of the search

warrant. He received a thirty-year sentence on each sale, with twenty years of

each suspended and the remaining ten years on each to be served concurrently.

He was later released by the State on probation prior to serving time on his

federal charge, which is the subject of this suit.

The United States charged Rogers with possession with intent to

distribute in excess of fifty grams of a substance containing cocaine base in

violation of 21 U.S.C. § 841(a), (b)(1)(a), which necessarily included the drugs

found in the red truck parked outside the 320A building. Rogers filed a motion

to suppress the evidence of the drugs found in the truck, arguing that the truck

1Unless otherwise noted, the facts in this section come from United States v. Rogers,

481 F. App’x 157, 158 (5th Cir. 2012) and the undisputed facts set out in the parties’ briefs in

this appeal.

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was not parked on the 320 property covered by the warrant, but instead was

parked on completely different property, the 320A property, and was therefore

beyond the scope of the warrant. Rogers entered a conditional plea of guilty,

reserving his right to appeal any determination on his motion to suppress. The

district court denied the motion without holding a hearing and accepted his

conditional guilty plea, and Rogers appealed.

The Fifth Circuit panel vacated the district court’s denial of Rogers’s

motion to suppress and remanded to the district court for a hearing on the

motion. The panel noted that the parties disputed whether the truck was

parked on the 320 property or a separate property, and whether the officers

made a reasonable effort to ascertain and identify whether the truck was on

the property identified in the warrant. In particular, the panel found that the

court’s findings were based on the government’s “unsupported statements in

its pleadings, [which] were insufficient to determine that the officers made a

reasonable effort to identify whether the truck was on the property listed in

the warrant.” 2 Thus, the panel remanded for an evidentiary hearing.

On remand, the district court held the hearing and granted Rogers’s

motion to suppress and excluded the evidence of the drugs found in the truck

under the “fruit of the poisonous tree” doctrine. 3 It noted that it had denied

Rogers’s earlier motion to suppress without a hearing because “the

Government represented to the court: (1) that ‘the officers found a larger

amount of crack cocaine inside a red truck parked outside the residence [at 320

CR 401],’ and (2) that ‘[t]he red truck belonging to the defendant was

2 481 F. App’x at 160.

3 United States v. Rogers, No. 1:09CR139-M-S, 2013 WL 435946, at *4 (N.D. Miss. Feb.

4, 2013).

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found parked in the back of the residence located at 320 CR 401.’” 4 The court

concluded that both representations were false.

The court noted that the warrant described the place to be searched as

“320 CR 401, Shannon, Lee County, Mississippi, together with all approaches

and appurtenances thereto. Also, all vehicles and out buildings on the

property.” 5 The court continued:

The property where the red truck was located—320A CR 401—is

in no way part of that description. It has a different address. It is

owned by someone other than the defendant. It is at least 200

yards away from the property at 320. It has its own driveway

leading to the main road. It has its own metered connection to the

power company—in someone else’s name. It has a separate E911

address—registered to someone other than the defendant. It is

barely visible from the property covered under the warrant.

Though a small dirt track leads from the back of the property at

320 to the property at 320A, one must wind around a turn and

travel past various structures and fenced pastures to reach it.

The investigating officers [including Warren and Howell] knew

that the situation was problematic enough that they now—for the

first time ever—claim they called the judge issuing the warrant in

an effort to shore it up. They made no effort whatsoever to

document the alleged telephone call, and the issuing judge,

according to the officers and representations by the Assistant

United States Attorney, had absolutely no recollection of having

received such a call. Indeed, the government did not even call him

as a witness. The court gives the alleged call no weight at all.

Though Fourth Amendment issues can sometimes be thorny, there

is nothing difficult about the decision in this case because, by any

rational measure, the law enforcement officers’ search of Rogers’

truck was unreasonable. Neither the truck nor the building by

which it was parked were within the scope of the search warrant,

4 Id. at *1 (alterations and emphasis in district court opinion).

5 Id. at *3.

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and the officers’ purported telephone call neither expanded the

scope of the warrant, nor constituted a new warrant. 6

As the court further explained, the telephone call would have been

insufficient to satisfy the warrant requirement under federal law (e.g., it was

not given “under oath or affirmation” or memorialized in writing after the fact

under Fed. R. Crim. P. 4.1), 7 and at any rate Mississippi law does not allow

officers to obtain or extend a warrant by telephone. 8

The court also concluded that the search was not protected by the good

faith exception to the warrant requirement (also relevant to this appeal), which

the court accurately summarized as follows:

The standard for the good-faith exception is that “evidence

obtained by law enforcement officials acting in objectively

reasonable good-faith reliance upon a search warrant is admissible

in the [prosecution’s] case-in-chief even though the affidavit on

which the warrant was based was insufficient to establish probable

cause.” United States v. Pena–Rodriguez, 110 F.3d 1120, 1130 (5th

Cir. 1997). “Issuance of a warrant normally suffices to establish

good faith on the part of law enforcement who conduct a search

pursuant to the warrant.” Id. Law enforcement officials cannot

establish objective good faith, however, when the warrant is “based

on an affidavit ‘so lacking in indicia of probable cause as to render

the official’s belief in its existence entirely unreasonable.’”

Id. quoting [United States v. Leon, 468 U.S. 897, 923 (1984)]. The

good-faith exception to the exclusionary rule permits officers to

rely upon a warrant supported by an affidavit alleging more than

wholly conclusory statements even if the affidavit is ultimately

found not to establish probable cause. Consequently, a skeletal

affidavit does not justify good-faith reliance on a warrant. 9

6 Id. at *3-4.

7 Id. at *4.

8 White v. State, 842 So. 2d 565 (Miss. 2003).

9 2013 WL 435946, at *5.

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The court concluded that the good faith exception did not apply to show

that the officers were objectively reasonable in relying “upon the only warrant

issued (for 320 CR 401) as a basis to search 320A” because “[t]he evidence

presented strongly supports Rogers’ view of events, and cross-examination of

the witnesses [including Warren and Howell] left them without credibility.” 10

The court noted a number of “troubling aspects of the case” and concluded:

“There is a palpable difference between doing the best one can in interpreting

and executing a search warrant that is, ultimately, found wanting—and

knowingly cutting corners while executing the warrant, then relying upon the

good-faith exception to the exclusionary rule to rescue the unlawful search. The

officers in the present case chose the latter.” 11

The district court therefore excluded the evidence, which resulted in the

government dismissing the case. Rogers spent a total of approximately 452

days in federal incarceration before his conviction was overturned. Rogers then

filed this action alleging multiple violations of his civil rights under 42 U.S.C.

§ 1983, against Warren and Howell and against the municipal defendants. He

asserted claims of (1) unlawful seizure, unlawful search, and false

imprisonment under the Fourth and Fourteenth Amendments, as well as

conspiracy to do the same, in that the defendants allegedly instituted the

proceedings, prosecuted, convicted, and confined Rogers “with knowledge that

the evidence procured against [Rogers] was unlawful and inadmissible”; (2)

violations of procedural and substantive due process under the Fourteenth

Amendment, in that the defendants’ actions allegedly “deprived [Rogers] of his

right to fundamental fairness in a criminal proceeding”; (3) failure to train

10 Id.

11 Id. at *7.

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and/or supervise by the municipal defendants; and (4) supplemental state law

claims, including malicious prosecution.

Eventually, the district court granted the defendants’ motions for

summary judgment through two orders, dismissing Rogers’s claims against all

defendants. 12 On appeal, Rogers does not challenge any of the district court’s

findings as to the municipal defendants, and he expressly concedes his appeal

with respect to the sheriff, leaving only his claims against Warren and Howell.

With respect to the officers, the district court determined: (a) that Warren and

Howell are entitled to qualified immunity on the unlawful search because they

acted objectively reasonably; (b) that Rogers failed to make out a substantive

due process claim under the Fourteenth Amendment; and (c) that he failed to

make out a viable claim under state law. Rogers timely appealed.

II. Jurisdiction and Standard of Review

The district court had federal question jurisdiction under 28 U.S.C.

§ 1331. We have appellate jurisdiction under 28 U.S.C. § 1291. We review the

grant of summary judgment under Fed. R. Civ. P. 56 de novo, i.e., the usual

Rule 56 standards. 13 Summary judgment is only appropriate “if the movant

shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” 14

12 The district court initially entered an order and memorandum opinion granting the

defendants’ motions for summary judgment, see Rogers v. City of Tupelo, Miss., No.

1:13CV243-SA-DAS, 2015 WL 3450266 (N.D. Miss. May 29, 2015) (hereinafter “First MSJ

Opinion”). Rogers filed a motion for reconsideration, which the district court granted in part

in a brief order, see Rogers v. City of Tupelo, Miss., No. 1:13CV243-SA-DAS, 2016 WL 1249156

(N.D. Miss. Mar. 28, 2016). On reconsideration, the district court again granted the

defendants’ motions for summary judgment in full, see Rogers v. City of Tupelo, No.

1:13CV243-SA-DAS, 2016 WL 3849563 (N.D. Miss. July 13, 2016) (hereinafter “Second MSJ

Opinion”).

13 James v. Gonzalez, 348 F. App’x 957, 959 (5th Cir. 2009).

14 Fed. R. Civ. P. 56.

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III. Analysis

A. The District Court Erred By Granting Qualified Immunity

To Warren And Howell On The Ground That They Acted

Objectively Reasonably.

Even though the district court correctly concluded that the search of the

truck on the 320A property took place without a warrant and was not saved by

the automobile exception, it found that both Warren and Howell are entitled

to qualified immunity because they acted “objectively reasonably.” 15 The

district court reversibly erred under the summary judgment standard.

Resolving the qualified immunity question at summary judgment

involves a two-pronged inquiry. The first prong is “whether the facts, ‘[t]aken

in the light most favorable to the party asserting the injury, . . . show the

officer’s conduct violated a [federal] right[.]’” 16 The second prong is “whether

the right in question was “clearly established” at the time of the violation.” 17

“‘[T]he salient question . . . is whether the state of the law’ at the time of an

incident provided ‘fair warning’ to the defendants ‘that their alleged [conduct]

was unconstitutional.’” 18

Courts have discretion to decide the order in which to engage these

two prongs. But under either prong, courts may not resolve

genuine disputes of fact in favor of the party seeking summary

judgment. This is not a rule specific to qualified immunity; it is

simply an application of the more general rule that a “judge’s

function” at summary judgment is not “to weigh the evidence and

determine the truth of the matter but to determine whether there

is a genuine issue for trial.” Summary judgment is appropriate

only if “the movant shows that there is no genuine issue as to any

15First MSJ Opinion, 2015 WL 3450266, at *3.

16Tolan v. Cotton, 134 S. Ct. 1861, 1865, 188 L. Ed. 2d 895 (2014) (quoting Saucier v.

Katz, 533 U.S. 194, 201 (2001)).

17 Id. at 1866 (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002)).

18 Id. (quoting Hope, 536 U.S. at 741).

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material fact and the movant is entitled to judgment as a matter

of law.” In making that determination, a court must view the

evidence “in the light most favorable to the opposing party.” 19

The district court addressed both prongs. First, it correctly concluded

that the search of the red truck on the 320A property was conducted without a

warrant, and it also correctly noted that “[a] warrantless search is

presumptively unreasonable unless it falls within an exception to the Fourth

Amendment’s warrant requirement. 20 The court explained, again correctly,

that the search of the truck did not fall under the Fourth Amendment’s

automobile exception because “Rogers was either several miles down the road

at his mother’s house or being held in the residence by other officers at 320 CR

401,” so “there was no exigent circumstance regarding the vehicle’s mobility

which would excuse a warrantless search of the automobile.” 21

Second, the district court concluded that this warrantless search violated

a clearly established constitutional right, specifically the Fourth Amendment’s

“right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” 22 Moreover, the district court

agreed with the criminal court in the previous case that it was impossible for

the officers to rely on the telephone extension of the warrant because

“Mississippi does not recognize warrants procured telephonically” under

White, which was decided approximately six years before this search. 23

Despite all of those correct findings, the district court nevertheless

concluded that Warren and Howell “were objectively reasonable in assuming

19 Id. (citations omitted).

20 First MSJ Opinion, 2015 WL 3450266, at *4 (citing United States v. Guzman, 739

F.3d 241, 245 (5th Cir.2014) (citing United States v. Karo, 468 U.S. 705, 717 (1984))).

21 Id.

22 Id. at *5 (citing cases).

23 Id.

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the 320A building and surrounding areas were part of the same parcel as 320

CR 401.” 24 It based this finding on the officers’ own accounts:

Both officers testified that they believed the 320A CR 401 property

to be part of the same property as 320 CR 401 and thus covered by

the warrant. Warren testified that to reach the 320A building, he

had to walk down a dirt path about two hundred yards. He

indicated that he saw the designation that the building was located

at 320A, but thought it was for electric meter purposes only. The

officers continually referred to the 320A building as an

“outbuilding” or “shop building.” Moreover, at least one vehicle

surrounding that building was registered in Kermit Rogers’ name

and at the address listed in the search warrant. Therefore, they

assert their actions were objectively reasonable in light of the

clearly established law. . . .

The Court finds that the officers were objectively reasonable in

authorizing the search of the red truck parked outside the 320A

building. The search warrant indicated the areas to be searched to

include all appurtenances, outbuildings and vehicles surrounding

320 CR 401. Once officers ran the tag on the red truck, which came

back that it was registered to the Plaintiff at the 320 CR 401

address, it would not be unreasonable for them to assume the

“outbuilding” metered as 320A CR 401 was covered under the

warrant. Also, Warren’s authorization of the search of the red

truck parked outside 320A CR 401 was not unreasonable in light

of the assurances given by the Justice Court Judge Pat Carr that

searching that property was “fine.” The Court cannot find that the

officers were plainly incompetent or knowingly violated the law on

the basis of the record. Therefore, even though the 320A building

was over two hundred yards away, not visible from the residence

explicitly covered by the search warrant, and equipped with a

separate meter, the Court finds that the officers acted in an

objectively reasonable manner in authorizing the search of the red

truck. 25

24 Id.

25 2015 WL 3450266, at *5-6 (citation omitted).

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We conclude the district court did not properly apply the summary

judgment standard. First, the district court stated without qualification that

“[w]hether the official acted with objective reasonableness is an issue of law

reserved for the court.” 26 That question is only an issue of law if the facts are

undisputed. The case the district court cited for that proposition took the

plaintiff’s alleged facts as true, then determined whether those facts, as a

matter of law, violated his constitutional rights. 27 A finding of objective

reasonableness is not appropriate, however, if the material facts are in

dispute, 28 as they are in this case.

The district court based its finding that Warren and Howell acted with

objective reasonableness on their accounts of how they subjectively viewed the

relationship between the 320 and 320A properties. As illustrated by the district

court’s description of the properties in the previous criminal case, supra, there

is a great deal of evidence that severely undermines the officers’ accounts.

Moreover, there is a wealth of other summary judgment evidence contradicting

the officers’ subjective testimony that they acted reasonably.

Most notably, the officers claim their telephone call to the judge showed

that they acted objectively reasonably, essentially by relying on the judge’s

opinion that the search of the truck was acceptable under the circumstances.

There are several major disputes precluding summary judgment on this point.

26 Id. at *5 (citing Williams v. Bramer, 180 F.3d 699 (5th Cir. 1999)).

27 See Williams, 180 F.3d at 701.

28 See Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) (“Rule 56 still

has vitality in qualified immunity cases if the underlying historical facts in dispute that are

material to the resolution of the questions whether the defendants acted in an objectively

reasonable manner in view of the existing law and facts available to them.”); see also Mangieri

v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994) (noting that in Lampkin, “We concluded that

this court would be unable to make the determination of the objective reasonableness of the

officer’s activities ‘without settling on a coherent view of what happened in the first place.’”).

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First, Mississippi law does not allow for telephone warrants or extensions

under White, but White went further than that: it set out circumstances that

might show an officer still acted objectively reasonably under Leon, supra:

Today, we adopt the Leon good faith exception to warrantless

searches and further find that it applies to the case at bar. The

officer stated that a district attorney had informed them in police

procedures training that such warrants were permissible under

appropriate circumstances. Further, the officer stated that he had

obtained such a warrant on one or two prior occasions. Beyond

that, the oral statement was given under oath to a neutral

magistrate. More importantly, the following morning, the officer

filled out a written warrant and record of the telephone

conversation and presented it to the authorizing judge. Thus, a

follow up procedure utilizing some, though admittedly not all, of

the generally recognized safeguards was used here. Instead of

immediately entering the apartment and conducting a warrantless

search, these officers “did their duty” by pursuing a more careful,

prudent course. Thus, the officers had a reasonable good faith

belief that they were executing a valid warrant, and the

exclusionary rule should not operate in this case. 29

The 2009 search of Rogers’s property took place well after White, and

virtually none of the factors identified by the White court as indicating objective

reasonableness were present here. There were no contemporaneous written

records as to what Warren told the judge over the phone, no undisputed

evidence that it was even given under oath, and no follow-up procedure

whatsoever to document the call.

The failure to document the call in itself might be fatal to Warren and

Howell’s claim of objective reasonableness relating to the call under

Mississippi law, but even if we examine the later testimony relating to the call,

the officers still are not entitled to summary judgment.

29 White, 842 So. 2d at 571-72 (citation omitted).

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The call is only helpful to the defendants if it helps to show objective

reasonableness. Because Mississippi law precludes extensions of warrants by

telephone, the call cannot help them if Warren intended it to extend the scope

of the warrant. If Warren made the call merely to confirm whether the truck

was covered by the existing 320 property warrant, he could only rely on the

judge’s permission if he accurately told the judge the relevant facts (e.g., the

distance between the 320 and 320A properties and the fact that the red truck

was parked outside the 320A property).

Judge Carr’s testimony years later raises factual disputes as to those

points, however. Judge Carr did not object when Howell’s attorney

characterized Warren’s call as seeking an extension of the warrant. When

Rogers’s attorney asked if Warren told him “why he thought the property was

suspicious” Judge Carr replied, “I don’t know the particulars. Just said it was

adjoining property close at hand and he would like to check it.” Judge Carr also

said Warren did not tell him whether or not any narcotics had been found at

the property covered by the warrant. Thus, Judge Carr’s testimony does not

demonstrate that Warren told him all of the relevant facts; indeed, it suggests

the opposite (“adjoining property close at hand”). There is, in short, a genuine

dispute as to the contents of the call.

There is also a factual dispute as to when the officers knew the red truck

parked outside the 320A property was registered to Rogers at the 320 property.

Deposition testimony established that the phone call in question took place on

Judge Carr’s lunch break, which began at approximately 11:30 a.m. Rogers

was Mirandized at 1:08 p.m. on the 320 property, and a printout of search

results suggests that the officers did not request the truck registration until

1:29 p.m. It is not clear when the search of the red truck actually took place.

Although the officers claim they asked Rogers if the truck was his before they

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searched it, he disputes that. Thus, there is a genuine dispute as to what the

officers knew when they called the judge, and what they knew when they

searched the red truck.

Finally, the district court’s own conclusion to its analysis suggests it was

making a judgment call as to the evidence: “Therefore, even though the 320A

building was over two hundred yards away, not visible from the residence

explicitly covered by the search warrant, and equipped with a separate meter,

the Court finds that the officers acted in an objectively reasonable manner in

authorizing the search of the red truck.” 30 All of those factors suggest the 320A

property was truly separate property from the 320 property, and the only

reasons the district court gave for ruling in favor of the defendants is their own

testimony on issues that are genuinely disputed.

In short, we conclude the district court failed to properly apply the

summary judgment standard. The record evidence shows a number of genuine

disputes as to material facts concerning the relationship between the 320 and

320A properties, as well as the officers’ knowledge and conduct on the day of

the search. It is impossible to find for the officers without making a credibility

call in their favor. On summary judgment, however, we are bound to draw all

inferences in favor of the nonmovant, Rogers.

Because we cannot find, on summary judgment, that the officers acted

objectively reasonably in conducting the warrantless search of the red truck,

we reverse the district court’s grant of qualified immunity in favor of Warren

and Howell relating to the warrantless search of the 320A property, including

the red truck. 31

30First MSJ Opinion, 2015 WL 3450266, at *6.

31The district court found that Howell was even more strongly entitled to summary

judgment than Warren because Howell did not participate in the call to the judge. Id. We

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B. The District Court Did Not Err By Dismissing Rogers’s

Substantive Due Process Claims.

In addition to the more typical Fourth Amendment claims discussed

above, Rogers also asserted a substantive due process claim under the Fourth

and Fourteenth Amendments, relying on Albright v. Oliver, 510 U.S. 266

(1994), and Napue v. Illinois, 360 U.S. 264 (1959). In short, this claim is based

on his allegations that the officers used “deceptive and reckless

misrepresentations” (and, in his view, fabricated or hid evidence) to obtain a

wrongful conviction. The district court initially held that Rogers could not

pursue it because he had never been convicted, 32 but on reconsideration the

court rejected the claim on the merits. 33

Thus, although Rogers argues the district court erred by refusing to

address the merits of his substantive due process claim due to its erroneous

belief that he had not been convicted, that argument is moot because the

district court did address the merits in its second opinion. 34

We cannot say the district court erred by dismissing this claim on the

merits. “The Fourteenth Amendment guarantees ‘[s]ubstantive due process[,

which] prevents the government from engaging in conduct that shocks the

conscience or interferes with rights implicit in the concept of ordered liberty.’” 35

reject that reasoning. Although Howell did not participate in the call itself, Warren testified

in his deposition that both he and Howell made the decision to search the 320A property

following Warren’s telephone call with the judge. Thus, although Howell is arguably less

culpable than Warren, he cannot be dismissed as a matter of law.

32 First MSJ Opinion, 2015 WL 3450266, at *8.

33 Second MSJ Opinion, 2016 WL 3849563.

34 Although the argument is moot, we do note that the Fifth Circuit in the criminal

proceeding described the matter as “a direct appeal from a felony conviction.” 481 F. App’x at

157.

35 Moran v. Clarke, 296 F.3d 638, 643 (8th Cir. 2002) (en banc) (quoting Weiler v.

Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998) (en banc)).

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Rogers may prevail on his due process claim only if he is able to show that the

defendants intentionally or knowingly presented false evidence or fabricated

evidence, 36 and that their actions shock the conscience. A mistake is not

enough to support a substantive due process claim.

We conclude that the summary judgment evidence, taken in the light

most favorable to Rogers, does not support his claim. The evidence is sufficient

to show that Warren and Howell acted objectively unreasonably in conducting

the warrantless search of the red truck, but it demonstrates at most negligence

or incompetence rather than a conscience-shocking intent to lie about,

misrepresent, or fabricate evidence. Thus, we affirm the district court’s

dismissal of Rogers’s substantive due process claim.

C. The District Court Did Not Err By Dismissing Rogers’s

Malicious Prosecution Claim Under Mississippi Law.

Finally, Rogers argues the district court erred by dismissing his state

law malicious prosecution claim pursuant to the police function exemption of

the Mississippi Tort Claims Act (“MTCA”). 37 In brief, as the district court

explained, under the MTCA, Miss. Code Ann. § 11—46—7(1), Warren and

Howell cannot be held liable for the actions they committed within the course

and scope of their employment as police officers. 38 The MTCA contains an

exception to this immunity if an officer’s conduct “constituted fraud, malice,

36 See, e.g., Canales v. Stephens, 765 F.3d 551, 573 (5th Cir. 2014) (“The Supreme

Court has repeatedly held that ‘a conviction obtained through false evidence, known to be

such by representatives of the State’ violates a defendant’s constitutional rights. (quoting

Miller v. Pate, 386 U.S. 1, 7 (1967)); Napue, 360 U.S. at 269 (“The same result obtains when

the State, although not soliciting false evidence, allows it to go uncorrected when it

appears.”).

37 Rogers asserted other state law claims, see First MSJ Opinion, 2015 WL 3450266,

at *11, but he has waived those claims for failing to argue them on appeal.

38 First MSJ Opinion, 2015 WL 3450266, at *11-12.

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Case: 16-60537 Document: 00513937385 Page: 17 Date Filed: 04/03/2017

No. 16-60537

libel, slander, defamation or any criminal offense other than traffic

violations,” 39 which would include malicious prosecution. 40

The district court concluded that Rogers failed to show any genuine issue

of material fact as to malicious prosecution because he failed to show “that

Warren had any malice in making that report. No reason for such a statement

has been extended by the Plaintiff to indicate Warren’s malicious intent.

Accordingly, that state law claim fails.” 41 Similarly, the court found no

evidence that Howell acted maliciously, especially given that he did not write

the report that ultimately became the basis of Rogers’s federal conviction. On

these facts, we cannot say the district court erred. Accordingly, we affirm the

district court’s grant of summary judgment in favor of the defendants on

Rogers’s state law claims.

IV. Conclusion

For the reasons set out above, we REVERSE the grant of summary

judgment in favor of Defendants-Appellees Warren and Howell on Rogers’s

claims relating to the warrantless search of the red truck on the 320A property.

Otherwise, we AFFIRM the district court’s grant of summary judgment on the

other claims against Warren and Howell (including Rogers’s substantive due

process and state law claims) and all claims against all other defendants.

39Miss. Code Ann. § 11–46–5(2).

40First MSJ Opinion, 2015 WL 3450266, at *12 (footnote omitted).

41 Id. See Benjamin v. Hooper Elec. Supply Co., Inc., 568 So. 2d 1182, 1191 (Miss. 1990)

(“‘Malice’ in the law of malicious prosecution is used in an artificial and legal sense and

applied to a prosecution instituted primarily for a purpose other than that of bringing an

offender to justice.”).

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