Gregory Carr v. Lloyd Hoover

Case: 18-60603 Document: 00515658303 Page: 1 Date Filed: 12/02/2020

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

December 2, 2020

No. 18-60603 Lyle W. Cayce

Clerk

Gregory Paul Carr,

Plaintiff—Appellant,

versus

Lloyd Hoover, Officer,

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:16-CV-88

Before Owen, Chief Judge, and King and Engelhardt, Circuit Judges.

Per Curiam:*

Gregory Paul Carr, a Mississippi prisoner appearing pro se, sued

Officer Lloyd Hoover pursuant to 42 U.S.C. § 1983. According to Carr,

Officer Hoover arrested him without a warrant or probable cause, in violation

of the Fourth Amendment. The district court granted summary judgment in

Officer Hoover’s favor, finding no constitutional violation and, in any case,

*

Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.

Case: 18-60603 Document: 00515658303 Page: 2 Date Filed: 12/02/2020

No. 18-60603

that Officer Hoover was entitled to qualified immunity. For the reasons that

follow, we AFFIRM.

I.

At approximately 4:46 a.m., on July 31, 2014, defendant-appellee

Officer Lloyd Hoover arrived on the 400 block of Sunflower Lane in

Greenville, Mississippi. Officer Hoover was dispatched there, he claims, in

response to a brief 911 call from an unknown woman. As he arrived on

Sunflower Lane, Officer Hoover states that he heard a woman’s cries coming

from house number 463. Officer Hoover knocked on the door and announced

himself as a police officer. Once someone opened the door, Officer Hoover

directed two men and four women out of the house and onto the ground.

After spotting a truck on the driveway, Officer Hoover walked off the

porch, away from the house, and toward the vehicle. On the truck’s console,

he spotted seven boxes of Sudafed in plain view. Certain types of Sudafed

contain pseudoephedrine as their active ingredient, and state law limits the

number of products containing pseudoephedrine that a person can legally

possess. 1 Other types of Sudafed contain phenylephrine and are not illegal to

possess in large quantities.

Believing the seven boxes of Sudafed he spotted contained

pseudoephedrine, and having identified plaintiff-appellant Gregory Paul Carr

as the truck’s owner, Officer Hoover placed Carr under arrest (the “Sudafed

Arrest”). Carr was transported to the Greenville Police Department, where

he was booked and jailed on, inter alia, charges of possession of a controlled

substance. Carr was never convicted on these charges, and it was later

discovered that the Sudafed in Carr’s truck contained phenylephrine and not

1

Pseudoephedrine is a chemical used to manufacture crystal methamphetamine.

See MISS. CODE. ANN. § 41-29-313 (c) (West 2018).

2

Case: 18-60603 Document: 00515658303 Page: 3 Date Filed: 12/02/2020

No. 18-60603

pseudoephedrine, the precursor to crystal methamphetamine. The

lawfulness of the Sudafed Arrest is the focus of this appeal.

Carr did plead guilty to a subsequent burglary charge, 2 a crime for

which he is now in prison. While in prison, serving time for the burglary, Carr

filed this suit in federal district court under 42 U.S.C. § 1983 challenging only

the constitutionality of the Sudafed Arrest.

II.

We review the district court’s grant of summary judgment de novo,

applying the same standards as the district court. Mason v. Lafayette City-Par.

2

To be clear, the burglary is not wholly unrelated to the Sudafed Arrest.

Specifically, an inventory search of Carr’s truck, carried out as a consequence of the

Sudafed Arrest, revealed tools that were later linked to the burglary for which Carr is now

in prison. A finding that the Sudafed Arrest was unlawful, therefore, might render the

tools’ discovery unlawful. See Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016). But

approximately thirty minutes before Carr was booked into the jail on Officer Hoover’s

charges, different officers were independently called to the scene of the burglary; they

watched a surveillance video of Carr, whom they recognized, breaking into vehicles and

stealing tools. So, along with the tools, the burglary conviction was supported by color video

evidence of the crime, an independent identification of Carr as the suspect, a confession

from his accomplice, and more. As noted, Carr pleaded guilty to the burglary and is now in

prison. We are mindful that “[when a prisoner] seeks damages in a § 1983 suit, the district

court must consider whether a judgment in favor of the plaintiff would necessarily imply

the invalidity of his conviction or sentence.” See Heck v. Humphrey, 512 U.S. 477, 479

(1994). The district court concluded Heck had “no bearing on the instant case.” Officer

Hoover does not argue on appeal that Heck is a bar because of this suit’s potential

consequences on the burglary conviction’s validity. We agree with the district court. Even

if the tools were unlawfully discovered, this conclusion would not “necessarily imply that

[Carr’s burglary] conviction was unlawful.” See Heck, 512 U.S. at 487 n.7 (“Because of . .

. harmless error. . . [s]uch a § 1983 action . . . would not necessarily imply that the plaintiff’s

conviction was unlawful.”); see also Brown v. Sudduth, 255 F. App’x 803, 806 (5th Cir.

2007) (collecting published authority from the Fifth Circuit and sister circuits standing for

the proposition that “because a valid conviction may follow an illegal arrest, a successful §

1983 unlawful arrest action does not necessarily imply the invalidity of an underlying

conviction”). Because the tools and the burglary are of no further relevance to the

disposition of this appeal, we make no mention of them below.

3

Case: 18-60603 Document: 00515658303 Page: 4 Date Filed: 12/02/2020

No. 18-60603

Consol. Gov’t, 806 F.3d 268, 274 (5th Cir. 2015). Summary judgment is

appropriate when “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.”

Id. (quoting FED. R. CIV. P. 56). “We are not limited to the district court’s

reasons for its grant of summary judgment.” Lincoln v. Scott, 887 F.3d 190,

195 (5th Cir. 2018).

Section 1983 provides a federal cause of action against “[e]very

person” who under color of law causes “the deprivation of any rights . . .

secured by the Constitution.” And, under the Fourth Amendment, “[t]he

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

against unreasonable searches and seizures, shall not be violated[.]” U.S.

Const. amend. IV.

Before the district court, Carr challenged Officer Hoover’s conduct

as unconstitutional. The district court granted summary judgment in Officer

Hoover’s favor.

III.

On appeal, in connection only with the Sudafed Arrest, Carr argues

that: (1) Officer Hoover violated his Fourth Amendment rights in

effectuating a warrantless search and seizure; and (2) Officer Hoover is not

entitled to qualified immunity. We consider—and reject—Carr’s

contentions below.

a) Sudafed Arrest

As we have already recounted, having seen the seven boxes of Sudafed

in the truck and identified Carr as the truck’s owner, Officer Hoover placed

Carr under arrest for possession of a controlled substance. 3 We address first

3

Once Officer Hoover told Carr he would be placed under arrest, Carr allegedly

became belligerent and resisted, and was therefore also charged with disturbing the peace.

4

Case: 18-60603 Document: 00515658303 Page: 5 Date Filed: 12/02/2020

No. 18-60603

whether Officer Hoover’s discovery of the Sudafed was lawful, and next

whether the Sudafed provided probable cause to effectuate the arrest. We

conclude that both the discovery and the arrest were constitutional.

i. Lawful Discovery

To begin, Carr’s pro se arguments amount to an assertion that the

discovery of the Sudafed was unlawful because, by walking onto the property

at 463 Sunflower Lane and looking into Carr’s truck, Officer Hoover violated

Carr’s Fourth Amendment interest in (1) the home and its constitutionally

protected area—the curtilage—and (2) his truck.

We start by addressing whether Officer Hoover invaded Carr’s

Fourth Amendment interest in the home and its curtilage. If Officer Hoover

unlawfully entered 463 Sunflower Lane’s premises, then any evidence

discovered as a result of his intrusion would be excluded. See Murray v.

United States, 487 U.S. 533, 536 (1988)(noting that the introduction into

evidence of tangible materials seized during an unlawful search is excluded).

It is well established that “Fourth Amendment rights are individually

held and cannot be asserted solely by reference to a particular place; rather,

they may be enforced only by persons whose own protection under the

Amendment has been violated.” United States v. Phillips, 382 F.3d 489, 495

(5th Cir. 2004). So, to challenge any intrusion on Officer Hoover’s part as an

invasion of Carr’s own interest in 463 Sunflower Lane, Carr must have a

reasonable expectation of privacy in this particular home. To be sure, Carr’s

truck was parked on 463 Sunflower Lane’s driveway. And in some instances,

a home’s driveway may be part of the home’s curtilage. See, United States v.

Because Officer Hoover smelled alcohol on Carr’s breath, Carr was arrested on charges of

public drunkenness, too. We omit mention of these charges as Officer Hoover only needed

probable cause for “any crime” to arrest Carr lawfully. See Allen v. Cisneros, 815 F.3d 239,

246 (5th Cir. 2016).

5

Case: 18-60603 Document: 00515658303 Page: 6 Date Filed: 12/02/2020

No. 18-60603

Holley, 831 F.3d 322, 335 n.4 (5th Cir. 2016) (Graves, J., dissenting) (noting

that precedent has not “announce[d] a broad rule that a driveway is not part

of a home’s curtilage”).

But even if we assume, arguendo, that the driveway in this case is

protected curtilage, Carr would have no reasonable expectation of privacy in

it because he was merely a temporary guest at 463 Sunflower Lane. See Collins

v. Virginia, 138 S. Ct. 1663, 1674 (2018) (citing Pennsylvania v. Labron, 518

U.S. 938, 939-40 (1996) (noting that in Labron, the Court upheld a

warrantless search of a truck parked in a driveway, in part, because “[u]nlike

in [Collins], there was no indication that the individual who owned the truck

in Labron had any Fourth Amendment interest in the farmhouse or its

driveway”).

It is undisputed that Carr had been inside 463 Sunflower Lane for only

a few minutes; he did not know the other people there; he does not own the

home; and he does not know who does. He was not a guest who “typif[ies]

those who may claim the protection of the Fourth Amendment.” See Phillips,

382 F.3d at 496 (quoting United States v. Vega, 221 F.3d 789, 797 (5th Cir.

2000) (noting, inter alia, the lack of a prior relationship between the

defendants and the lessee of the apartment, and the brevity of the visit)).

Therefore, Carr’s status as a temporary guest did not vest him with any

reasonable expectation of privacy in this particular home or its curtilage. Cf.

Minnesota v. Carter, 525 U.S. 83, 88 (1998) (concluding that because

respondents had no legitimate expectation of privacy in the apartment,

whether the police officer’s observation constituted a search was irrelevant);

United States v. Wineinger, 208 F. App’x 286, 289 (5th Cir. 2006) (finding

that a temporary guest lacked reasonable expectation of privacy). Without a

reasonable expectation of privacy in this particular home’s curtilage, Carr

may not challenge Officer Hoover’s entry as a violation of his own Fourth

Amendment rights.

6

Case: 18-60603 Document: 00515658303 Page: 7 Date Filed: 12/02/2020

No. 18-60603

Further, any contention that Officer Hoover intruded on Carr’s

Fourth Amendment interest in the truck also fails, because Officer Hoover’s

conduct did not constitute a search of Carr’s truck. On this record, it is clear

that Officer Hoover merely walked next to the truck and looked inside—he

did not conduct a search, under the meaning of the Fourth Amendment, at

all. See Arizona v. Hicks, 480 U.S. 321, 328 (1987) (“[A] truly cursory

inspection—one that involves merely looking at what is already exposed to

view, without disturbing it—is not a ‘search’ for Fourth Amendment

purposes, and therefore does not even require reasonable suspicion.”); cf.

Ker v. California, 374 U.S. 23, 36-37 (1963) (finding that it was reasonable for

the officer to go to the door and look in, and that when he saw the brick of

marijuana, he was not engaged in any search at all). The discovery of the

Sudafed was lawful.

ii. Probable Cause

Once Officer Hoover looked inside the truck, saw what he believed to

be seven boxes of Sudafed containing pseudoephedrine, and identified Carr

as the truck’s owner, we conclude he had probable cause to effectuate a

warrantless arrest.

“Probable cause for a warrantless arrest exists when the totality of

facts and circumstances within a police officer’s knowledge at the moment of

the arrest are sufficient for a reasonable person to conclude that the suspect

had committed or was committing an offense.” United States v. Ho, 94 F.3d

932, 935-36 (5th Cir. 1996). Probable cause requires substantially less

evidence than that sufficient to support a conviction. Id.

As noted, Mississippi Code § 41-29-313 limits the amount of Sudafed

containing pseudoephedrine that a person can possess, as this type of

Sudafed is used to make crystal methamphetamine. See, e.g., Williamson v.

State, 876 So. 2d 353, 354 (Miss. 2004) (“[The officer] discovered several

boxes of Sudafed. . . . [T]hese chemicals constitute precursors used in the

7

Case: 18-60603 Document: 00515658303 Page: 8 Date Filed: 12/02/2020

No. 18-60603

illegal manufacture of controlled substances.”); Venezia v. State, 203 So. 3d

1, 3 (Miss. Ct. App. 2016) (“It was learned [that the defendant] had

purchased Sudafed, the main ingredient in methamphetamine.”).

Officer Hoover saw, inside the truck, large quantities of what he

reasonably—although mistakenly—believed to be a controlled substance. See

Miss. Code Ann. § 41–29–313(c) (West 2018) (“[Possessing p]roducts

containing more than twenty-four (24) grams of . . . pseudoephedrine . . .

constitute[s] a rebuttable presumption of intent to use the product as a

precursor to methamphetamine or another controlled substance.”). Carr

admitted to Officer Hoover that the truck belonged to him. This is enough to

establish probable cause. Cf. United States v. Anderson, 500 F.2d 1311, 1317

(5th Cir. 1974) (“[T]he discovery of marijuana in the trunk of the car

certainly provided probable cause for the arrest.”); Williamson, 876 So.2d at

353 (affirming a trial court’s denial of a motion to suppress where an

anonymous tip to police provided information that two men purchased large

quantities of Sudafed).

Certainly, Officer Hoover, after arresting Carr and transporting him

for booking, was informed that the Sudafed in the truck contained

phenylephrine and not pseudoephedrine—the precursor to crystal

methamphetamine. This mistake of fact, however, is of no moment, for the

totality of the circumstances suggest Officer Hoover’s mistake was a

reasonable one. See Heien v. North Carolina, 574 U.S. 54, 61 (2014) (“We

have recognized that searches and seizures based on mistakes of fact can be

reasonable.”).

After all, Officer Hoover was at the scene in the dimly-lit early-

morning hours. He spotted seven boxes of Sudafed together on the truck’s

consol. After asking Carr why he had so many boxes of Sudafed, Officer

Hoover received no clear answer. Officer Hoover could only see the that the

packages were labeled with the word “Sudafed.” See Ho, 94 F.3d at 935-36

8

Case: 18-60603 Document: 00515658303 Page: 9 Date Filed: 12/02/2020

No. 18-60603

(“Probable cause for a warrantless arrest exists [based on] the totality of facts

and circumstances within a police officer’s knowledge at the moment of the

arrest . . . .”); United States v. Nicholson, 721 F.3d 1236, 1244 (10th Cir. 2013)

(“A totality of the circumstances approach makes sense in this factfinding

role, because officers can exercise their judgment based on their experience

and common sense.”) (citing United States v. Cortez, 449 U.S. 411, 418 (1981)

(“[T]he evidence . . . must be seen and weighed not in terms of library

analysis by scholars, but as understood by those versed in the field of law

enforcement.”)); see, e.g., United States v. Jones, No. L–12–10, 2012 WL

1309837, at *6 (S.D. Tex. Apr. 16, 2012) (finding an officer’s misreading of a

letter “I” for a number “1” to be a reasonable mistake given the fighting

conditions and distance). And, the Fourth Amendment permits both

reasonable mistakes of law and fact. See Heien, 574 U.S. at 61 (2014); see also

Hill v. California, 401 U.S. 797, 804 (1971) (noting that “sufficient

probability, not certainty, is the touchstone of reasonableness under the

Fourth Amendment”). Officer Hoover’s reasonable mistake of fact,

therefore, leaves undisturbed our conclusion that he had sufficient probable

cause to effectuate the arrest. 4

4

All types of Sudafed contain “a nasal decongestant, either pseudoephedrine or

phenylephrine.” Carr argues that all Officer Hoover had to do to differentiate between

Sudafed with pseudoephedrine and Sudafed with phenylephrine was “read the label.”

Officer Hoover attested to the fact that what he could see was a clear “Sudafed” label on a

large quantity of boxes. And he relied on his knowledge that possessing a large quantity of

Sudafed containing pseudoephedrine is prohibited, as it is used to manufacture crystal

methamphetamine. Should any doubt remain as to whether Officer Hoover had probable

cause to effectuate the Sudafed Arrest, however, it is inconsequential; Officer Hoover is

entitled to qualified immunity if he “reasonably but mistakenly conclude[d] that probable

cause [wa]s present.” D.C. v. Wesby, 138 S. Ct. 577, 591 (2018) (quoting Anderson v.

Creighton, 483 U.S. 635, 641 (1987)) (alterations in original). Under these facts, Officer

Hoover—at minimum—had “arguable probable cause” to effectuate the Sudafed Arrest.

See Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000) (“[I]f officers of reasonable

competence could disagree on [probable cause], immunity should be recognized.”).

9

Case: 18-60603 Document: 00515658303 Page: 10 Date Filed: 12/02/2020

No. 18-60603

iii. Fruit of the Poisonous Tree

But liberally construing Carr’s pro se briefs, as we must, see Grant v.

Cuellar, 59 F.3d 523, 524 (5th Cir. 1995), it appears Carr’s challenge to the

Sudafed Arrest’s constitutionality is also based on Officer Hoover’s initial

conduct at 463 Sunflower Lane. And, to be sure, if Officer Hoover acted

unconstitutionally and thereafter discovered the Sudafed as a direct result of

his illegal conduct, any analysis considering whether Carr’s arrest was

supported by probable cause might not legally depend on the Sudafed as

evidence. See United States v. Hernandez, 670 F.3d 616, 621 (5th Cir. 2012)

(holding that “the officers could not have relied on Hernandez’s admission .

. . as probable cause to arrest her, because the officers’ Fourth Amendment

violation had already occurred, tainting Hernandez’s admission”). In other

words, the Sudafed would be considered “fruit of the poisonous tree.”

Strieff, 136 S. Ct. at 2061.

While courts must exclude “primary evidence obtained as a direct

result of an illegal search or seizure” and “evidence later discovered,” Id.

(quoting Segura v. United States, 468 U.S. 796, 804 (1984)), otherwise-

suppressible evidence will still be admitted if the connection between the

unconstitutional conduct and the evidence is “so attenuated as to dissipate

the taint.” United States v. Grosenheider, 200 F.3d 321, 327 (5th Cir. 2000);

see Strieff, 136 S. Ct. at 2061 (elaborating on the attenuation doctrine).

In this case, although Officer Hoover ordered Carr out of the house

and onto the ground, Officer Hoover’s knock and subsequent commands

were not, in any sense, the but-for cause of the discovery of the Sudafed.

“Our cases show that but-for causality is . . . a necessary . . . condition for

suppression.” Hudson v. Michigan, 547 U.S. 586, 592 (2006) (“In this case,

of course, the constitutional violation of an illegal manner of entry was not a

but-for cause of obtaining the evidence.”) (emphasis in original). Indeed,

Officer Hoover did not ask any of the occupants to lead him to the truck nor

10

Case: 18-60603 Document: 00515658303 Page: 11 Date Filed: 12/02/2020

No. 18-60603

did he command them to unlock the vehicle. The discovery of the Sudafed

depended simply on the fact that Officer Hoover could see seven boxes of it

on the truck’s console. We agree with the district court, then, that the

Sudafed Arrest was supported by probable cause and did not violate Carr’s

Fourth Amendment rights.

To the extent Carr intends to challenge the legality of Officer

Hoover’s initial conduct at 463 Sunflower Lane independently, we find Carr

waived the relevant arguments on appeal.

b) Waived Arguments

Much of the district court’s opinion, Carr’s brief, and Officer

Hoover’s response focus on a 911 call, which may or may not have been

placed. According to Officer Hoover, it was pursuant to this call—and a

woman’s cries he claims to have heard—that Officer Hoover drove to the

400 block of Sunflower Lane and knocked on the door of house number 463.

Perhaps, but for that call and the alleged cries, Officer Hoover would have

had no reason to walk onto the property, knock on the door, announce his

presence as a police officer, and command the occupants out of the house and

onto the ground.

But whether Officer Hoover’s voice commands 5 constituted a

seizure—separate from the Sudafed Arrest—for purposes of the Fourth

Amendment is not a question properly before us. The district court found

that “[t]he sole issue remaining in this case is whether Officer Lloyd Hoover

had probable cause to arrest Mr. Carr for possession of a controlled

substance.” Carr v. Hoover, No. 4:16CV88-MPM-DAS, 2018 WL 3636563,

5

We note that it is well established that no matter how unwelcome, Florida v.

Jardines, 569 U.S. 1, 8 (2013), a police officer’s warrantless knock on the door does not on

its own intrude on privacy expectations protected by the Fourth Amendment. See Kentucky

v. King, 563 U.S. 452, 469–70 (2011).

11

Case: 18-60603 Document: 00515658303 Page: 12 Date Filed: 12/02/2020

No. 18-60603

at *6 (N.D. Miss. July 31, 2018 ). Carr has not separately argued—neither

before the district court nor on appeal—that Officer Hoover’s voice

commands alone violated his Fourth Amendment rights. 6

By failing to raise these arguments, Carr has abandoned them. Yohey

v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“Although we liberally construe

the briefs of pro se appellants, we also require that arguments must be briefed

to be preserved.”); see Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813

F.2d 744, 748 (5th Cir. 1987) (“We will not raise and discuss legal issues that

[the appellant] has failed to assert.”).

The only issue before us is whether summary judgment was proper on

the claim that Carr was “unlawfully arrested and searched without a warrant

and probable cause,” as a result of Officer Hoover’s discovery of the

Sudafed. There are no disputed issues of material fact precluding a finding,

as a matter of law, that Officer Hoover acted constitutionally in effectuating

the Sudafed Arrest.

IV.

Because we conclude that Carr’s arrest was not an unreasonable

seizure under the Fourth Amendment, we AFFIRM the district court’s

grant of summary judgment below.

6

To the extent Carr argues that Officer Hoover’s knock and subsequent

commands were implicated in deciding whether Officer Hoover “had probable cause to

arrest Mr. Carr for possession of a controlled substance,” id., we have fully addressed these

arguments above. We concluded that Officer Hoover’s initial conduct at 463 Sunflower

Lane was sufficiently attenuated from his discovery of the Sudafed so as to not have affected

the constitutionality of the Sudafed Arrest.

12