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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10530
Non-Argument Calendar
________________________
D.C. Docket No. 3:16-cv-00059-TCB
CEDRIC LASHAWN WARNER,
Plaintiff-Appellant,
versus
JEREMY WOOD,
in his individual and official capacity as a
Police Officer for the City of Newnan,
JOHN DOE 1-20,
in their individual and official capacities,
Defendants-Appellees,
NEWNAN POLICE DRUG UNIT, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 31, 2018)
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Before TJOFLAT, NEWSOM and HULL, Circuit Judges.
PER CURIAM:
In this civil lawsuit, Plaintiff Cedric Warner appeals the district court’s order
granting summary judgment to Defendant Officer Jeremy Wood. Warner’s suit is
based on his claim that Officer Wood fabricated evidence of cocaine. The district
court concluded that Warner relied on speculation and had not presented any
evidence, direct or circumstantial, that Officer Wood fabricated evidence. After
careful review of all record evidence, we affirm.
I. BACKGROUND
A. Application for Search Warrant
Officer Wood received several complaints from neighbors that Warner was
selling drugs out of his home and conducted a controlled purchase of cocaine at
Warner’s home. Thereafter, Officer Jeremy Wood of the Newnan, Georgia Police
Department (“Police Department”) applied for a warrant to search Warner’s home.
In his application, Officer Wood noted that he had surveilled Warner’s home and
observed “subjects going into [Warner’s home,] staying for 2 to 3 minutes at a time
and leaving.” Officer Wood opined that, based on his experience as a narcotics
investigator, this activity was consistent with the sale of drugs.
In his application, Officer Wood also stated that, in mid-August 2013, he
had arranged for a confidential informant to go to Warner’s home and attempt to
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purchase drugs from Warner. Under Officer Wood’s direction, the informant went
to Warner’s home and purchased a white, rock-like substance from Warner, which
field-tested positive for cocaine. On August 14, 2013, a Coweta County, Georgia
Magistrate Court Judge granted Officer Wood’s application and issued a search
warrant for Warner’s home.
B. Execution of Search
At 8 p.m. on Wednesday, August 21, 2013, five law enforcement officers of
the Police Department, including Officer Wood, executed a search warrant at
Warner’s home. The officers found Warner in a detached garage with four other
people. In the detached garage, the officers found partially-smoked marijuana
cigarettes and loose marijuana.
The officers then proceeded to search Warner’s home while Warner waited
in the detached garage. In Warner’s kitchen, the officers found digital scales and
several empty, clear plastic bags. The officers also found loose marijuana on top
of a coffee maker in Warner’s kitchen and in a kitchen drawer.
When one of the officers looked inside the black coffee maker, he
discovered a small, white, rock-like substance that he believed to be crack cocaine.
The officer alerted Officer Wood, who photographed the white, rock-like
substance as it was found in the coffee maker before placing it in a sealed evidence
bag. Warner included a copy of that photograph in his complaint. Officer Wood
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did not field test the substance. The officers then arrested Warner, who was still in
the garage, and told him that he was being charged with possession of cocaine and
marijuana, and took him to the Coweta County jail.
The officers then spent the next several hours completing their search of
Warner’s home. Since the search began at 8 p.m., this means that the officers were
at Warner’s home until at least 10:00 p.m.
Before his shift ended for the night, Officer Wood drove to a Police
Department building that was a satellite location. The satellite location was about
a mile away from the Police Department’s main headquarters. In his deposition,
Officer Wood testified that it was late at night when the search ended and that
Police Department officers often stored evidence in the satellite location if the
evidence was found late at night. Officer Wood placed the sealed evidence bag
containing the substance found in Warner’s coffee maker into a locked file cabinet
at the satellite Police Department building. Officer Wood frequently used this
location to store drugs purchased by confidential informants from area drug
dealers.
Sergeant Mark Cooper corroborates Officer Warner’s account. Sergeant
Cooper helped Officer Wood search Warner’s home and later accompanied Officer
Wood when he went to the satellite location. Sergeant Cooper testified that he
watched Officer Wood remove the substance from Warner’s coffee maker, place
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the substance into an evidence bag, and seal the evidence bag. Once the search
concluded, Sergeant Cooper went with Officer Wood to the satellite building and
watched Officer Wood place the evidence bag containing the substance into the
locked file cabinet. Sergeant Cooper testified that only he and Officer Wood had
keys to the file cabinet wherein Officer Wood placed the evidence bag containing
the substance. Sergeant Cooper also testified that he and Officer Wood returned to
the satellite location on the following day, on August 22, 2013, to retrieve the
evidence bag containing the substance and transported it to the Police
Department’s evidence locker at the main headquarters.
At the time of Warner’s arrest on Wednesday, August 21, 2013, the Police
Department’s evidence policy stated that any officer who collects physical
evidence from a crime scene must transport that evidence to the Police
Department’s evidence custodian prior to the end of the officer’s shift. See
Newnan Police Department Evidence and Property Policy §§ III(A)(1), (3), (5);
Newnan Police Department Evidence Policy § IV(A)(3). The Police Department’s
evidence locker is located at its main headquarters at 1 Joseph-Hannah Boulevard,
Newnan, Georgia, also about one mile from Warner’s home.
Officer Wood submitted the evidence bag with the substance to the Police
Department’s evidence custodian at the Police Department’s headquarters on
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August 23, 2013.1 The evidence custodian then sent the substance to the Georgia
Bureau of Investigation (“GBI”) for testing.
C. GBI Testing
On September 23, 2013, the GBI issued a report concluding that the
substance submitted in the sealed evidence bag tested positive for cocaine. The
GBI report states that the weight of the cocaine was “less than 1 gram.”
On December 3, 2013, the District Attorney’s Office for the Coweta Judicial
Circuit charged Warner with two offenses: (1) possession of cocaine, in violation
O.C.G.A. 16-13-30(a), and (2) possession of marijuana with intent to distribute, in
violation O.C.G.A. 16-13-30(j).
D. Warner’s Criminal Case
On January 29, 2014, Warner was arraigned, and Jermario Davis was
appointed as his attorney. Attorney Davis subsequently met with Warner and
Warner’s wife, LuVester Ann Evans, to prepare for Warner’s criminal trial. When
Davis explained to Warner that he was charged with possession of cocaine, Warner
and Evans adamantly denied the charge. Evans told Attorney Davis that the
substance found in the coffee maker was an 800-milligram pill of ibuprofen that
1
Officer Wood and Sergeant Cooper testified that they submitted the evidence bag to the
evidence custodian the next day, on August 22, 2013. But the chain of custody paperwork on the
evidence bag lists August 23, 2013 as the submission date. Because we review the facts in the
light most favorable to Warner, we assume that Officer Wood and Sergeant Cooper submitted
the evidence bag on August 23.
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was broken in half, not crack cocaine. Evans explained to Davis that she routinely
stored items in the coffee maker, as neither she nor her husband used the coffee
maker very often. Evans stated that she placed half of the ibuprofen pill in the
coffee maker after taking the other half for pain relief, as taking a full ibuprofen
pill would have made her nauseous.
Attorney Davis then showed Warner and his wife several evidence
photographs, including the photograph taken by Officer Wood of the substance
sitting inside the coffee maker. After looking at the photograph himself, Davis
noticed that the substance did not resemble crack cocaine based on his experiences
as a criminal defense attorney and a state prosecutor.
On April 11, 2014, Attorney Davis met with Tracy Reeves, the Coweta
County assistant district attorney prosecuting Warner’s case, and the Police
Department’s evidence custodian at Police Department headquarters. During the
meeting, the Police Department’s evidence custodian retrieved the evidence bag
containing the substance tested by the GBI. Davis and Reeves then compared
(1) the photograph that Officer Wood took of the substance while in the coffee
maker with (2) the evidence bag containing the substance that was tested by the
GBI. Davis opined that the substance in the photograph of Warner’s coffee maker
and the substance in the evidence bag appeared to be different from one another in
shape, texture, and color. Davis noted that the substance in the coffee maker in
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Officer Wood’s photograph was one solid mass, bright white in color, and
appeared to have a smooth, rounded shape, while the substance in the evidence bag
consisted of two, yellow masses with “rigid” sides. Davis took several
photographs of the evidence bag. 2 Then the Police Department’s evidence
custodian took the evidence bag containing the substance back to the evidence
locker.
Attorney Davis’ photographs of the evidence bag show two small pieces,
which the GBI report states weighed less than one gram and tested positive for
cocaine.
Before the meeting ended, Attorney Davis asked Prosecutor Reeves if he
also noticed that the substance in the photograph and the substance in the evidence
bag differed in appearance. Reeves did not acknowledge any differences.
Roughly an hour and a half after the meeting ended, Prosecutor Reeves
called Attorney Davis and told him that he would dismiss the cocaine charge
against Warner if Warner would plead guilty to misdemeanor possession of
marijuana, a lesser included offense of his marijuana with intent to distribute
charge. Attorney Davis informed Warner of Prosecutor Reeves’ offer, which
Warner accepted.
2
Both Officer Warner’s photograph of the substance in the coffee maker and Davis’
photographs of the evidence bag are in the record.
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Prosecutor Reeves testified that he did not see any indication that the
substance in the evidence bag was different from the substance found in Warner’s
coffee maker, or that any evidence had been tampered with or fabricated. Notably
too, Reeves testified that he was not surprised by any differences in appearance
between the substance found in the coffee maker and the substance in the evidence
bag, as cocaine typically begins to degrade over time and can look different after it
is tested. Reeves also explained that his plea offer to Warner was not based on any
problems with the evidence and that if he had believed that there was any
fabrication or similar unethical conduct, he would have dismissed the entire case
against Warner.
On April 14, 2014, Warner pled nolo contendere to misdemeanor possession
of marijuana. That same day, the District Attorney’s Office for the Coweta
Judicial Circuit filed a motion to enter nolle prosequi on Warner’s cocaine
possession charge.
E. Civil Lawsuit
Almost two years later, on April 8, 2016, Warner filed this civil lawsuit
against Officer Wood in his individual capacity. 3 In his complaint, Warner alleged
3
Although Warner also sued Wood in his official capacity, Warner failed to advance any
arguments concerning his official capacity claims against Officer Wood. See generally Monell
v. Dep’t of Soc. Servs.,
436 U.S. 658, 694,
98 S. Ct. 2018, 2037–38 (1978) (explaining that a
plaintiff who sues an officer in his official capacity is really pleading an action against the entity
for whom the officer is an agent and must identify a custom or policy implemented by the entity
in order to advance his suit). Warner has therefore abandoned those claims, and we devote no
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that the officers had found a one-half pill of ibuprofen in the coffee maker and
Officer Wood then fabricated and withheld evidence against him by swapping the
ibuprofen taken from Warner’s coffee maker with crack cocaine. Warner
advanced these claims against Officer Wood: (1) violation of his substantive due
process rights under the Fourteenth Amendment (Count One); (2) violation of his
right of access to the courts under the Fourteenth Amendment (Count Two); and
(3) fraud and misrepresentation, conspiracy to commit fraud and misrepresentation,
intentional infliction of emotional distress, and malicious prosecution (Counts
Three, Four, Five, and Six, respectively), all under state law.
On January 16, 2018, the district court granted Officer Wood’s motion for
summary judgment. The district court found that Warner failed to produce
affirmative evidence in support of his fabrication claims and instead relied only on
Warner’s own speculation. The district court discussed Evans’ testimony about the
substance found in Warner’s coffee maker. The district court explained that, even
if Evans had at one time placed ibuprofen in the coffee maker, she was not present
discussion to them. Cont’l Tech. Servs., Inc. v. Rockwell Int’l Corp.,
927 F.2d 1198, 1199 (11th
Cir. 1991) (per curiam) (“An argument not made is waived . . . .”).
Warner’s complaint also named as defendants the Newnan Police Drug Unit, the Coweta
County Crime Suppression Unit, and twenty unnamed Newnan police officers in his complaint.
On May 26, 2016, the district court dismissed the complaint against the Newnan Police Drug
Unit. On January 30, 2017, the district court granted judgment on the pleadings in favor of the
Coweta County Crime Suppression Unit. Warner did not appeal those rulings. Warner also
failed to identify and serve the twenty unnamed defendants in the two years since he filed his
complaint. Thus, the only remaining defendant is Officer Wood in his individual capacity.
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the night of the search, and therefore her testimony does not confirm that the
substance in the coffee maker that night was ibuprofen.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment de novo. Melton
v. Abston,
841 F.3d 1207, 1219 (11th Cir. 2016). Summary judgment is
appropriate when the record evidence, including depositions, sworn declarations,
and other materials, 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),
(c). When deciding a motion for summary judgment, it is not part of the district
court’s function to decide questions of material fact, but rather to determine
whether there are fact questions for a jury to answer. Hairston v. Gainesville Sun
Publ’g Co.,
9 F.3d 913, 919 (11th Cir. 1993) (citing Anderson v. Liberty Lobby,
Inc.,
477 U.S. 242, 248,
106 S. Ct. 2505, 2510 (1986)). A district court must not
weigh the evidence in question and decide the truth of the matter.
Anderson, 477
U.S. at 249, 106 S. Ct. at 2510. When conflicts do arise between the facts
evidenced by the parties, the district court must credit the nonmoving party’s
version. Feliciano v. City of Miami Beach,
707 F.3d 1244, 1247 (11th Cir. 2013)
(quoting Evans v. Stephens,
407 F.3d 1272, 1278 (11th Cir. 2005) (en banc)).
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III. DISCUSSION
The issue presented in this appeal is whether Warner’s evidence has created
a genuine factual dispute from which a jury might return a verdict in his favor—
namely, that the officers during the search found ibuprofen in the coffee maker and
later Officer Wood swapped the ibuprofen with crack cocaine. We believe that
Warner has not made this showing because Warner has no affirmative evidence to
support his fabrication claim. Josendis v. Wall to Wall Residence Repairs, Inc.,
662 F.3d 1292, 1318 (11th Cir. 2011) (explaining that “[u]nreliable
conjecture . . . presented as a ‘belief’ without any basis in ascertainable fact, [is]
not the type of admissible evidence required to survive a motion for summary
judgment” (internal quotation marks omitted)).
Warner admits that when the officers came to execute the search warrant,
(1) he was in his detached garage watching television and hanging out with four
other people; (2) he was arrested in the garage; (3) he did not see what the officers
took out of the coffee maker in the house because he was in the garage the entire
time; (4) his wife Evans was not at the house when the search warrant was
executed; and (5) on that day he did not ever see what was in the coffee maker.
Warner also did not know how the substance was taken from his house, such as
whether it went into an evidence bag or was taken in open form. The bottom line
is that Warner has no personal knowledge of what the officers took from the coffee
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maker, as he was in the garage during the search of his house and never saw the
substance when it was found by the officers in his kitchen. 4
This leaves Evans’ affidavit that she had put one-half of a pill of ibuprofen
in the coffee maker. Evans’ affidavit, however, does not state when—the time or
even the day—she placed the ibuprofen in the coffee maker. Moreover, Evans was
not at the house when the officers conducted their search. Thus, Evans also did not
see what the officers took out of the coffee maker that day.
We recognize that the substance in the coffee maker (in the photograph that
Officer Wood took) appears to have different coloration from the substance in the
evidence bag (in the photograph that Attorney Davis took). Although the
substance in the coffee maker is one piece and the substance in the evidence bag is
two pieces, the substances are similarly small in size. But Prosecutor Reeves
explained the differences in appearance. He testified that crack cocaine samples
often change appearance after undergoing forensic testing. As an example,
Prosecutor Reeves testified that it is not uncommon for a single piece of a
suspected drug to break up into multiple pieces when undergoing forensic testing.
Indeed, the GBI performed several tests on the substance submitted by the
evidence custodian, including gas chromatography, mass spectrometry, thin layer
4
Interestingly, Warner also has no personal knowledge about the marijuana found in the
kitchen. Warner testified that he did not know there was any marijuana in his kitchen and had
not seen any marijuana in the kitchen that day. But now, Warner does not dispute that the
officers found marijuana in his kitchen.
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chromatography, and electronic balance and mechanical scale tests. These tests
involve the separation of chemical substances into particles. 2 Paul C. Giannelli &
Edward J. Imwinkelried, Scientific Evidence § 23.03 (5th ed. 2012) (describing
common methods of identifying drugs, including gas chromatography and mass
spectrometry). Prosecutor Reeves also testified that crack cocaine usually
degrades over time, which can also change its appearance. Warner has produced
nothing to rebut Prosecutor Reeves’ testimony that crack cocaine can change
appearance because of forensic testing or its propensity to degrade over time.
Instead, Warner relies on his own speculation as to what the officers actually
found in the coffee maker and what Officer Wood could have done in the period
between the execution of the search warrant on the night of August 21 and the
submission to the evidence custodian on August 23. What Warner needs is some
record evidence of impropriety, and he has none. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp.,
475 U.S. 574, 587,
106 S. Ct. 1348, 1356 (1986) (explaining
that the non-movant “must do more than simply show that there is some
metaphysical doubt as to the material facts”). Because Evans was not at the house
and does not state what day or time she put ibuprofen in the coffee maker, and
because there were four other people in Warner’s home who also had no personal
knowledge of what was in the coffee maker, Warner’s allegations that Officer
Wood and other Police Department officers conspired to fabricate evidence are
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insufficient to overcome Wood’s motion for summary judgment.
Id. at 592–94,
106 S. Ct. at 1359 (explaining that “courts should not permit factfinders to infer
conspiracies when such inferences are implausible”).
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s order granting
summary judgment to Officer Wood on all of Warner’s claims.
AFFIRMED.
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