The opinion
Case: 23-10022 Document: 00516768371 Page: 1 Date Filed: 05/30/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10022
Summary Calendar FILED
____________ May 30, 2023
Lyle W. Cayce
Eric Lamar Ellis, Clerk
Plaintiff—Appellant,
versus
Rubi Garza-Lopez; Brian Marshall Barrier,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:22-CV-675
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam: *
Plaintiff Eric Lamar Ellis, pro se, brought a 42 U.S.C. § 1983 action
against two Irving police officers, Defendants Rubi Garza-Lopez and Brian
Marshall Barrier, in their individual capacities, based on his detention and
subsequent search. The Defendants moved for summary judgment based on
qualified immunity. The district court dismissed the claims against them.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10022 Document: 00516768371 Page: 2 Date Filed: 05/30/2023
No. 23-10022
Because Ellis cannot establish a constitutional violation of his Fourth
Amendment rights, we AFFIRM.
On August 4, 2021, the Defendants as well as Officer Josh
Weinschreider saw Ellis’s vehicle parked at a city park at 4:52 a.m. Pursuant
to a city ordinance, the park was closed at that time, and the park hours were
clearly posted.
The Defendant and Officer Weinschreider approached Ellis’s car,
where they observed him either asleep or unconscious. The three officers
shone their flashlights and claimed they could smell marijuana coming from
Ellis’s vehicle’s open windows without needing to put any part of their bodies
into his vehicle. After Ellis awoke, Officer Garza-Lopez asked him to exit the
vehicle and patted him down. The Defendants then searched his car for
approximately five minutes before they found marijuana in a grocery bag in
Ellis’s glove box. During the search, Ellis admitted to Officer Weinschreider
that he had marijuana in his car and that it would not be hard to find. After
they discovered the marijuana, the Defendants gave Ellis the choice to
destroy the drugs or receive a citation for possession of marijuana. Ellis chose
to destroy the drugs, and the Defendants released him.
Ellis sued the Defendants, alleging violations of his Fourth and Eighth
Amendment rights. The Defendants asserted their entitlement to qualified
immunity in their answer. The Magistrate Judge ordered that the qualified
immunity issue be resolved through expedited motions for summary
judgment. The Defendants filed motions for summary judgment, and the
Magistrate Judge recommended that the district court dismiss Ellis’s claims
against the Defendant in their entirety. The district court accepted the
Magistrate Judge’s recommendation and dismissed the suit with prejudice
against the Defendants. Ellis timely appealed.
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Case: 23-10022 Document: 00516768371 Page: 3 Date Filed: 05/30/2023
No. 23-10022
We review the grant of summary judgment de novo. Nickell v. Beau
View of Biloxi, LLC, 636 F.3d 752, 754 (5th Cir. 2011). Summary judgment is
properly granted only when, viewing the evidence in the light most favorable
to the nonmoving party, “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.” FED. R. CIV. P. 56(a).
“The doctrine of qualified immunity protects government officials
from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.” Thompson v. Mercer, 762 F.3d 433, 436 (5th Cir. 2014)
(quotation marks and citations omitted). “Qualified immunity gives
government officials breathing room to make reasonable but mistaken
judgments and protects all but the plainly incompetent or those who
knowingly violate the law.” Id. at 437 (quotation marks and citations
omitted). “A good-faith assertion of qualified immunity alters the usual
summary judgment burden of proof, shifting it to the plaintiff to show that
the defense is not available.” Cass v. City of Abilene, 814 F.3d 721, 728 (5th
Cir. 2016) (quotation marks and citations omitted). The “qualified-
immunity inquiry is two-pronged.” Cunningham v. Castloo, 983 F.3d 185, 190
(5th Cir. 2020). We ask (1) “whether the facts, viewed in the light most
favorable to the party asserting the injury, show that the official’s conduct
violated a constitutional right,” and (2) “whether the right was ‘clearly
established.’” Id. at 190–91. “We can analyze the prongs in either order or
resolve the case on a single prong.” Id. at 191 (quotation marks and citation
omitted).
Ellis alleges that he was subjected to cruel and unusual punishment in
violation of his Eighth Amendment rights because he was directed to destroy
his marijuana or receive a citation. “The Eighth Amendment ensures the
safety of convicted prisoners.” Baughman v. Hickman, 935 F.3d 302, 306 (5th
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No. 23-10022
Cir. 2019). Therefore, Ellis’s complaint about being ordered to destroy the
marijuana found in his vehicle does not present an Eighth Amendment issue.
Ellis also alleges under Section 1983 that the Defendants violated his
Fourth Amendment rights when they seized him and searched his vehicle
without a warrant. This search, though, was not a violation of Ellis’s
constitutional rights. Reasonable suspicion allowed Ellis to be detained, and
they had probable cause to suspect him of a crime and therefore search his
vehicle. See Carroll v. Ellington, 800 F.3d 154, 170–71 (5th Cir. 2015); United
States v. Fields, 456 F.3d 519, 523 (5th Cir. 2006). The Defendants and
Officer Weinschreider each could smell marijuana emanating from the open
car windows. There is established law that smelling marijuana provides
sufficient probable cause to conduct a warrantless search. Bazan v. Whitfield,
754 F. App’x 280, 281 (5th Cir. 2019), cert. denied, 140 S. Ct. 125 (2019)
(citing United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989).
We can “resolve the case on a single prong” of the qualified immunity
analysis. See Cunningham, 983 F.3d at 191. Ellis has not shown that the
Defendants violated his Fourth or Eighth Amendment rights. Therefore, the
Defendants are entitled to qualified immunity.
AFFIRMED.
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