Scallion v. Parish of Red River , 251 F. App'x 853 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT August 15, 2007
Charles R. Fulbruge III
Clerk
No. 07-30257
Summary Calendar
WILLIAM O. SCALLION,
Plaintiff-Appellant,
versus
JOHNNY RAY NORMAN, individually and
in his official capacity as Sheriff of
Red River Parish; ALVIE MYERS; TRACY SCOTT;
SIDNEY JACOBS; JOHN MAHFOUZ,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
(5:06-CV-147)
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
William Scallion challenges, pro se, the adverse summary
judgment, based on qualified immunity, for his 42 U.S.C. § 1983
action against Probation Officer Alvie Myers, Officer John Mahfouz,
and Sheriff’s Deputies Tracy Scott and Sidney Jacobs. (He does not
contest the summary judgment awarded Sheriff Ray Norman.) Scallion
claimed conspiracy, false arrest, and unlawful search and seizure
by these defendants, stemming from his arrest for, inter alia,
*
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this opinion should not be published and is not precedent except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.
possessing methamphetamine with intent to distribute. (As discussed
infra, the State requested, and the state criminal court ordered,
Scallion’s charges nol prossed.)
In contending the district court erred in holding these four
defendants entitled to qualified immunity, Scallion claims they
acted unreasonably and beyond their official capacity. The
uncontested facts follow.
Around July 2004, Myers was informed narcotics were being
distributed from a residence in Red River Parish, Louisiana. Myers
contacted Deputy Scott, who, with Myers, listened to a confidential
informant’s telephone conversation, revealing methamphetamine would
be delivered to that residence in a green Ford pick-up truck on 30
July 2004.
On that day, shortly after officers stopped a green Ford pick-
up truck, Myers, Jacobs, Scott, and Mahfouz arrived on the scene.
While Myers spoke to the truck’s driver, with whom he was
acquainted, Scott, with weapon drawn, went to the passenger side,
where Scallion was sitting, and ordered him to exit the vehicle.
Scott performed a pat-down search, handcuffed Scallion, and advised
him the Sheriff’s Department had been informed his truck was
transporting illegal drugs. Scott then asked Scallion for consent
to search his truck. Scallion agreed and signed a consent-to-search
form after it was read to him.
2
The search of Scallion’s truck produced $856.00 in cash,
numerous plastic bags containing powder residue, prescription drugs,
a handgun, and a container holding methamphetamine. In response to
his criminal indictment, Scallion filed, and the state criminal
court granted, a motion to suppress the evidence obtained during the
search. At the State’s request, that court subsequently ordered the
charges against Scallion nol prossed. Scallion then filed this
action.
A summary judgment is reviewed de novo. Triple Tee Golf, Inc.
v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007). Such judgment is
appropriate when the summary-judgment evidence “show[s] that there
is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law”. FED. R. CIV. P.
56(c). As discussed below, as well as essentially for the reasons
stated in the district court’s detailed opinion according qualified
immunity to the four defendants, summary judgment was proper.
Scallion first contends Myers is not entitled to qualified
immunity because he acted unreasonably by contacting Scott, after
learning of drugs being sold at a specific Red River Parish
residence; and listening, with Scott, to the telephone conversation
revealing methamphetamine would be delivered to that residence in
a green Ford pick-up truck. See Haggerty v. Tex. S. Univ., 391 F.3d
653, 655 (5th Cir. 2004) (qualified immunity protects public
officials from civil liability if, viewing the alleged facts in the
3
light most favorable to the plaintiff, the official’s conduct did
not violate a constitutional right so clearly established that the
conduct was unreasonable).
Scallion fails to identify a clearly-established constitutional
right violated by Myers. See id. (first step in qualified-immunity
analysis is identifying a clearly-established constitutional right
that has been violated); Malley v. Briggs, 475 U.S. 335, 341 (1986)
(qualified immunity protects “all but the plainly incompetent or
those who knowingly violate the law”). Moreover, Scallion has not
produced any evidence showing Myers participated in the decision to
arrest Scallion or search his vehicle. See, e.g., Cinel v. Connick,
15 F.3d 1338, 1343 (5th Cir. 1994) (civil conspiracy requires
plaintiff to demonstrate an agreement among defendants to act
illegally and an actual violation of a constitutional right).
Scallion next asserts Jacobs, Mahfouz, and Scott are not
entitled to qualified immunity because they lacked probable cause
to arrest him and searched his vehicle without a warrant. Probable
cause exists “when the totality of the facts and circumstances
within a police officer’s knowledge at the moment of arrest are
sufficient for a reasonable person to conclude that the suspect had
committed or was committing an offense”. Glenn v. City of Tyler,
242 F.3d 307, 313 (5th Cir. 2001) (internal quotation marks
omitted). When officers have probable cause to believe a suspect’s
vehicle contains contraband or criminal evidence, they may search
4
it without a warrant, pursuant to the automobile exception to the
warrant requirement. Mack v. City of Abilene, 461 F.3d 547, 552-53
(5th Cir. 2006).
Scallion maintains the defendants lacked probable cause because
they failed to verify the information provided by Myers’
confidential informant before relying on it to arrest Scallion and
search his vehicle. Without probable cause, he claims, both the
arrest and search were sufficiently unreasonable to defeat qualified
immunity.
The totality of facts and circumstances within the defendants’
knowledge when they arrested Scallion were sufficient for a
reasonable officer to conclude Scallion criminally possessed
narcotics. These three defendants had previously used, and found
reliable, information from Myers’ confidential informant.
Reasonable law-enforcement officers may rely without investigation
on information from a trustworthy source. See Hart v. O’Brien, 127
F.3d 424, 443-44 (5th Cir. 1997), abrogated on other grounds, as
recognized by Spivey v. Robertson, 197 F.3d 772, 775-76 (5th Cir.
1999). Having probable cause, the defendants’ arrest of Scallion
and search of his vehicle were not unreasonable.
AFFIRMED
5