holding that the “ultimate determination of probable cause . . . is a question of law” (quoting United States v. Ho, 94 F.3d 932, 936 (5th Cir. 1996))
How later courts described this case
- holding that the “ultimate determination of probable cause . . . is a question of law” (quoting United States v. Ho, 94 F.3d 932, 936 (5th Cir. 1996))
Written by the judges who cited it.
The opinion
Case: 20-50917 Document: 00515994095 Page: 1 Date Filed: 08/25/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 25, 2021
No. 20-50917
Lyle W. Cayce
Clerk
Tettus Davis,
Plaintiff—Appellee,
versus
Jonathon Hodgkiss, Individual,
Defendant—Appellant,
______________________________
Elizabeth Saucedo,
Plaintiff—Appellee,
versus
Jonathon Hodgkiss, Individual,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:17-CV-1113
USDC No. 1:17-CV-1114
Before King, Dennis, and Ho, Circuit Judges.
Case: 20-50917 Document: 00515994095 Page: 2 Date Filed: 08/25/2021
No. 20-50917
Per Curiam:
This is a consolidated civil rights action, in which plaintiffs-appellees
allege that defendant-appellant Sergeant Jonathon Hodgkiss violated their
Fourth Amendment rights by using false statements to secure a search
warrant. Hodgkiss now appeals the lower court’s denial of qualified
immunity. For the reasons that follow, we REVERSE and RENDER
summary judgment in favor of Hodgkiss.
I.
Many of the relevant facts in this case are in dispute. However, as is
explained in greater detail infra, the posture of this interlocutory appeal
requires that we “accept the truth of the plaintiffs’ summary judgment
evidence” and deprives us of jurisdiction to “review the genuineness of [the]
factual disputes that precluded summary judgment in the district court.”
Kinney v. Weaver, 367 F.3d 337, 341 (5th Cir. 2004) (en banc). Indeed,
“[w]here factual disputes exist in an interlocutory appeal asserting qualified
immunity, we accept the plaintiffs’ version of the facts as true.” Id. at 348.
The case arises out of a criminal investigation into plaintiffs-appellees
Elizabeth Saucedo and Tettus Davis by detectives of the Williamson County
Sheriff’s Office. Defendant-appellant Sergeant Jonathon Hodgkiss claims
that he and Detective Jorian Guinn interviewed a source of information
(“SOI”) in March of 2015 and alleges that the SOI revealed information
about illegal activities involving Davis. Hodgkiss contends that, after a
recorded interview, the detectives and the SOI drove through Georgetown
while the SOI provided additional information. In particular, the SOI
allegedly identified the house—Saucedo’s residence—from which Davis
conducted illegal activities, including dealing narcotics. Plaintiffs dispute that
this drive with the SOI ever occurred and emphasize that the recording of the
interview does not include the statements implicating Davis as a drug dealer.
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No. 20-50917
Beyond the information allegedly provided by the SOI, Hodgkiss also
learned from other Williamson County deputies that the Saucedo residence
was a “suspected drug distribution house due to high traffic going to and
coming from the location.” Surveillance was conducted at the residence, and
Davis was observed there “on numerous occasions” and was seen driving a
tan Buick sedan. “[B]ehavior consistent with drug sales” was also observed.
A “trash run” was conducted at the residence on June 9, 2015, during which
detectives recovered, inter alia, plastic baggies containing marijuana residue
and cocaine and mail addressed to Saucedo.
Hodgkiss eventually prepared an affidavit for a search warrant of the
Saucedo residence, which was signed by Williamson County District Court
Judge King in June 2015. The warrant was executed on June 11, 2015, and
Davis and Saucedo were subsequently arrested and charged with drug
offenses. However, in May of 2016, a district court judge found that there
was no probable cause for the search warrant and granted a motion to
suppress all evidence obtained as a result of the search. Specifically, the judge
concluded that the recording of Hodgkiss’s interview with the SOI did not
reflect the information that Hodgkiss claimed to have received from the SOI
in his affidavit. Soon thereafter, the State moved to dismiss all charges against
Davis and Saucedo.
In November of 2017, Davis and Saucedo each individually filed suit
against Hodgkiss for wrongful arrest and malicious prosecution under 42
U.S.C. § 1983. These actions were consolidated for all purposes on
September 11, 2018. The case was then reassigned, by consent of the parties,
to United States Magistrate Judge Mark Lane on August 8, 2019.
On October 15, 2020, the Magistrate Judge denied Hodgkiss’s motion
for summary judgment, which was based, in relevant part, on qualified
immunity. The Magistrate found that Davis and Saucedo had only pled facts
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No. 20-50917
“giving rise to one legally cognizable claim”—a claim under Franks v.
Delaware, 438 U.S. 154 (1978), based on Hodgkiss allegedly making false
statements in his affidavit. With regard to that single claim, the Magistrate
concluded both that (1) there was an issue of material fact as to whether
Hodgkiss recklessly, knowingly, or intentionally made material
misstatements and (2) an affidavit without those misstatements would not
have shown probable cause to search the Saucedo residence. The Magistrate
Judge thus denied Hodgkiss’s qualified immunity defense. This interlocutory
appeal by Hodgkiss followed.
II.
It is necessary first to define the scope of our jurisdiction in this
interlocutory appeal. We may exercise jurisdiction over an interlocutory
appeal of a denial of summary judgment based on qualified immunity only
“to the extent that the denial of summary judgment turns on an issue of law.”
Hogan v. Cunningham, 722 F.3d 725, 730 (5th Cir. 2013) (quoting Juarez v.
Aguilar, 666 F.3d 325, 331 (5th Cir. 2011)) (cleaned up). Indeed, “[w]henever
the district court denies an official’s motion for summary judgment
predicated upon qualified immunity, the district court can be thought of as
making two distinct determinations, even if only implicitly.” Kinney, 367
F.3d at 346. The first such determination is “that a certain course of conduct
would, as a matter of law, be objectively unreasonable in light of clearly
established law.” Id. The second is “that a genuine issue of fact exists
regarding whether the defendant(s) did, in fact, engage in such conduct.” Id.
We lack jurisdiction to “review conclusions of the second type on
interlocutory appeal.” Id. (emphasis in original). Put another way, we lack
jurisdiction to hear challenges to “the district court’s assessments regarding
the sufficiency of the evidence.” Id. at 347. However, we may consider the
“purely legal question” of “whether a given course of conduct would be
objectively unreasonable in light of clearly established law.” Id.
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No. 20-50917
The qualified immunity inquiry includes two prongs: (1) “whether the
officer’s alleged conduct has violated a federal right” and (2) “whether the
right in question was ‘clearly established’ at the time of the alleged violation,
such that the officer was on notice of the unlawfulness of his or her conduct.”
Cole v. Carson, 935 F.3d 444, 451 (5th Cir. 2019) (en banc), cert. denied sub
nom., Hunter v. Cole, 141 S. Ct. 111 (2020). The officer will be entitled to
qualified immunity if no constitutional violation occurred or if the conduct
“did not violate law clearly established at the time.” Id. We have the
“discretion to decide which prong of the qualified-immunity analysis to
address first.” Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc)
(citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). Again, in reviewing
the district court’s determinations on these two prongs, we “lack jurisdiction
to resolve the genuineness of any factual disputes” and may only consider
“whether the district court erred in assessing the legal significance of the
conduct that the district court deemed sufficiently supported for purposes of
summary judgment.” Cole, 935 F.3d at 452 (quoting Trent v. Wade, 776 F.3d
368, 376 (5th Cir. 2015)).
III.
We focus our discussion on the first prong of the qualified immunity
analysis—whether Hodgkiss’s alleged conduct violated a federal right.
Plaintiffs have alleged a violation of their Fourth Amendment right,
recognized by the Supreme Court in Franks v. Delaware, to be free from
search pursuant to a warrant that lacks probable cause due to knowing or
reckless misstatements. 438 U.S. at 155–56.
To prove such a claim under Franks, plaintiffs must show that (1) the
affidavit supporting a warrant contained false statements or material
omissions; (2) the affiant made such false statements or omissions knowingly
and intentionally, or with reckless disregard for the truth; and (3) the false
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statements or material omissions were necessary to the finding of probable
cause. See United States v. Kendrick, 980 F.3d 432, 440 (5th Cir. 2020) (citing
United States v. Ortega, 854 F.3d 818, 826 (5th Cir. 2017)); Franks, 438 U.S.
at 155-56. As to the final element, falsehoods will be deemed necessary to the
finding of probable cause if the affidavit, “with the . . . false material set to
one side,” is “insufficient to establish probable cause.” Franks, 438 U.S. at
156.
Each of the three elements is at issue in this case. The Magistrate
Judge found that issues of material fact precluded summary judgment on the
first and second elements, and we may not “resolve the genuineness of
[those] factual disputes.” Cole, 935 F.3d at 452 (quoting Trent, 776 F.3d at
376). However, as detailed above, the remaining question is whether, “if the
false statement is excised, . . . the remaining content in the affidavit fail[s] to
establish probable cause.” Kendrick, 980 F.3d at 440 (quoting Ortega, 854
F.3d at 826). And the “ultimate determination of probable cause . . . is a
question of law.” United States v. Ho, 94 F.3d 932, 936 (5th Cir. 1996). “In
determining whether probable cause exists without the false statements,” we
must make “a practical, common-sense decision as to whether, given all the
circumstances set forth in the affidavit [minus the alleged misstatements],
there is a fair probability that contraband or evidence of a crime will be found
in a particular place.” United States v. Froman, 355 F.3d 882, 889 (5th Cir.
2004) (alteration in original) (quoting United States v. Byrd, 31 F.3d 1329,
1340 (5th Cir. 1994)).
The Magistrate Judge concluded that the remaining content in the
affidavit was not sufficient to establish probable cause. We disagree.
The Magistrate identified that remaining content as follows: patrol
deputies believed that the Saucedo residence was a suspected drug house and
that Davis and Saucedo together transported marijuana and other narcotics
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No. 20-50917
to and from the residence; patrol deputies routinely observed plaintiffs leave
the residence and return after short periods of time and saw multiple vehicles
stop at the residence and briefly meet Davis in the street; Davis was routinely
observed driving his car around the city and meeting individuals for short
periods of time at various locations; Davis was pulled over in April of 2015,
and officers located a “medium sized box that contained marijuana residue”
and a large amount of currency “in small denominations”; and Davis was
observed meeting with an individual who was then on parole for a felony drug
conviction. Finally, the June 2015 trash run uncovered plastic baggies
containing a substance that field-tested positive for cocaine, plastic baggies
containing marijuana residue, mail addressed to Saucedo, Swisher Sweet
cigars, and loose tobacco. The affidavit also recounts Davis’s criminal
history, which includes multiple narcotics convictions.
We have previously found probable cause based on similar facts. In
United States v. Sibley, we held that a supporting affidavit based largely on a
single trash run sufficiently connected the defendant to the apartment and
“the apartment and its occupants to prior drug activity.” 448 F.3d 754, 758
(5th Cir. 2006). In that case, the affidavit stated that law enforcement had
received information that the apartment’s occupants were dealing in drugs,
garbage bags were observed being taken to the dumpster by an occupant, and
marijuana was found in the bags following a trash run. Id.
Here, even after setting aside the allegedly false statements, there are
similar facts set forth in the affidavit that establish probable cause to search
the Saucedo residence. Notwithstanding the fact that only a single trash run
was conducted, the evidence uncovered connected the trash bags and their
contents to the Saucedo residence. Those contents included over twenty
plastic baggies, many of which tested positive for narcotics. That is in
addition to Davis’s criminal history of engaging in drug activity, the
information received from deputies about plaintiffs’ suspected involvement
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No. 20-50917
in drug dealing, the suspicious behavior observed at the residence, and the
drugs uncovered in the vehicle which Davis drove to and from the residence.
Such evidence is sufficient to support probable cause. 1 See, e.g., United States
v. Sauls, 192 F. App’x 298, 300 (5th Cir. 2006) (“[The defendant’s] arrest
three months earlier in the same car that was registered to a resident at [the
residence] was sufficient to connect him to that residence,” and “[the
defendant’s] prior arrests on narcotics violations and the evidence
discovered in the curbside garbage were sufficient to support a reasonable
belief that contraband would be found inside the residence.”); United States
v. Reinholz, 245 F.3d 765, 776 (8th Cir. 2001) (holding that drug
paraphernalia and syringes with drug residue found in a single trash run,
coupled with occupant’s prior drug conviction, was sufficient to establish
probable cause for search warrant), cert. denied, 534 U.S. 896 (2001).
Accordingly, we find that, with the allegedly “false
statement[s] . . . excised,” the affidavit’s remaining content is enough to
establish probable cause. Kendrick, 980 F.3d at 440 (quoting Ortega, 854 F.3d
at 826). We thus conclude that Hodgkiss is entitled to summary judgment on
plaintiffs’ Franks claim as there was no constitutional violation.
1
Indeed, though plaintiffs cite a Sixth Circuit opinion holding that a single trash
run is not enough, alone, to support probable cause, that same opinion emphasized that the
defendant’s history of drug charges had been excluded from the supporting affidavit. See
United States v. Abernathy, 843 F.3d 243, 248 (6th Cir. 2016). Without that “critical missing
ingredient,” the court held that the remining evidence gathered in the trash run was not
enough to support probable cause. Id. at 255. We need not decide whether a single trash
run may establish probable cause by itself because there are more supporting facts set forth
in the affidavit at issue here.
8
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No. 20-50917
IV.
Based on the foregoing, we REVERSE the Magistrate Judge’s order
and RENDER summary judgment for defendant-appellant Sergeant
Hodgkiss on plaintiffs-appellees’ claim of liability under Franks.
9