                   Case: 11-15418         Date Filed: 07/26/2012   Page: 1 of 11

                                                                       [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-15418
                                        Non-Argument Calendar
                                      ________________________

                            D.C. Docket No. 6:10-cv-00342-MSS-DAB

ANA MARIA HAZLETON,

lllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                versus

FERNANDO TRINIDAD,
individually and in his official capacity,
FRANK SIKOS,
individually and in his official capacity,
EDWARD ALBINO,
individually and in his official capacity,

lllllllllllllllllllllllllllllllllllllll                               Defendant-Appellants.
                                      ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                            (July 26, 2012)

Before MARTIN, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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       Defendants Fernando Trinidad, Frank Sikos, and Edward Albino (together,

“the officers”), officers for the Orlando Police Department, appeal the denial of

their motions for summary judgment on the basis of qualified immunity. After

careful review, we affirm.

       On December 28, 2009, Ana Marie Hazleton brought suit in state court

under 42 U.S.C § 1983, alleging that the officers committed various civil rights

violations and common law torts while arresting her in her home without first

securing a warrant.1 After the case was removed to federal court, the officers

moved for summary judgment on the basis of qualified immunity.

       The district court granted the officers’ motions in part and denied them in

part. While the district court concluded that the officers were entitled to qualified

immunity for Hazleton’s claims related to the officers’ entry into her garage, the

court also decided that the officers were not entitled to qualified immunity as to

Hazleton’s claims of unlawful arrest and seizure. According to the district court,

the evidence as construed at summary judgment established that the officers had

probable cause to arrest Hazleton for the misdemeanor offense of resisting an

officer without violence, see Fla. Stat. § 843.02, but did not establish that there


       1
          The district court’s order summarized the evidence in the summary judgment record, so
we will not recite that evidence here. Instead, we will refer to specific facts as necessary for our
analysis.

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were exigent circumstances that would justify the warrantless entry into

Hazleton’s home. Following from the determination that Hazleton’s arrest was

unlawful, the district court also concluded that the force used by the officers in

effectuating that arrest was excessive.

      On appeal, the officers argue that the district court erred in denying

qualified immunity, both because exigent circumstances existed to justify their

pursuit of Hazleton into her residence and because the force used by the officers in

arresting Hazleton was “minimal and reasonable,” not excessive.

      We review de novo a district court’s denial of summary judgment based on

qualified immunity, viewing the facts in the light most favorable to the non-

movant. See Draper v. Reynolds, 369 F.3d 1270, 1274 (11th Cir. 2004).

      We analyze these claims under the familiar two-step qualified immunity

analysis that, though not required for all cases, is nevertheless “often appropriate.”

See Edwards v. Shanley, 666 F.3d 1289, 1294 (11th Cir. 2012) (quotation marks

omitted). The first step is to determine whether the defendant’s conduct

“amounted to a constitutional violation.” Lewis v. City of West Palm Beach, 561

F.3d 1288, 1291 (11th Cir. 2009). If so, the second step is to determine “whether

the right violated was clearly established at the time of the violation.” Id.

(quotation marks omitted); see also Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct.

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2508, 2515 (2002) (“For a constitutional right to be clearly established, its

contours must be sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” (quotation marks omitted)).

      First, the officers argue that there was no clearly established Fourth

Amendment violation because exigent circumstances existed to justify their

pursuit of Hazleton into her residence. They argue that this requires summary

judgment in their favor on her unlawful seizure and arrest claims. The officers

point out that Florida law permits the hot pursuit of a fleeing misdemeanant, where

the misdemeanor is punishable by a jail sentence, as is the case with Fla. Stat.

§ 843.02 here. See Ulysse v. State, 899 So. 2d 1233, 1234 (Fla. 3d DCA 2005);

Gasset v. State, 490 So. 2d 97, 98 (Fla. 3d DCA 1986).

      The officers are correct that Florida law permits the hot pursuit of a person

suspected of violating Fla. Stat. § 843.02 under certain circumstances. However,

their argument does not go far in addressing the question before us: whether there

was indeed a hot pursuit in this case. That inquiry is governed by the “decisions

of the U. S. Supreme Court, the United States Court of Appeals for the Eleventh

Circuit, and the highest court of the pertinent state.” See Marsh v. Butler Cnty.,

Ala., 268 F.3d 1014, 1032 n.10 (11th Cir. 2001) (en banc). We therefore look to

that body of law in deciding whether the officers’ conduct conformed with Federal

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Constitutional requirements.

       The controlling case law establishes that warrantless entry into a suspect’s

home is “presumptively unreasonable,” absent consent or exigent circumstances.

McClish v. Nugent, 483 F.3d 1231, 1248 (11th Cir. 2007). Exigent circumstances

exist “when the inevitable delay incident to obtaining a warrant must give way to

an urgent need for immediate action.” United States v. Ramos, 933 F.2d 968, 972

(11th Cir. 1991) (per curiam) (quotation marks omitted). The “‘hot pursuit’ of a

fleeing suspect” is among the recognized situations in which exigent

circumstances may exist. United States v. Blasco, 702 F.2d 1315, 1325 (11th Cir.

1983) (quotation marks omitted).2

       However, the hot pursuit doctrine does not excuse every instance where

officers enter a home to arrest a suspect. “[H]ot pursuit means some sort of

chase.” United States v. Santana, 427 U.S. 38, 42–43, 96 S. Ct. 2406, 2410 (1976)

(quotation marks omitted). The Supreme Court clarified this common-sense

limitation to the hot pursuit doctrine in Welsh v. Wisconsin, 466 U.S. 740, 104 S.

Ct. 2091 (1984), a case involving a warrantless home entry by officers to arrest a



       2
          The officers do not argue that other factors contributing to exigent circumstances, such
as “danger of flight or escape; danger of harm to police officers or the general public; [or] risk of
loss, destruction, removal, or concealment of evidence,” were present when they arrested
Hazleton. United States v. Santa, 236 F.3d 662, 669 (11th Cir. 2000) (quotation marks omitted).

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suspect for driving while intoxicated. Id. at 743, 104 S. Ct. at 2094.

      The facts of Welsh help illustrate its holding. “[A]fter changing speeds and

veering from side to side, the [suspect’s] car eventually swerved off the road and

came to a stop in an open field.” Id. at 742, 104 S. Ct. at 2093. The suspect

declined the assistance of a passer-by and walked away from the scene. Id. at 742,

104 S. Ct. at 2094. The passer-by contacted the police. The officers soon arrived,

interviewed the passer-by, and checked the registration of the now-abandoned car.

Id. Realizing that the car’s owner lived within walking distance, the officers went

to the suspect’s home, entered the house, and arrested the suspected driver. Id. at

742–43, 104 S. Ct. at 2094.

      The Supreme Court concluded that those circumstances were insufficient to

justify entry into the suspect’s home. Id. at 754, 104 S. Ct. at 2100. In rejecting

the State’s attempt to rely on the hot pursuit doctrine, the Court held that “the

claim of hot pursuit is unconvincing [where] there was no immediate or

continuous pursuit of the [suspect] from the scene of a crime.” Id. at 753, 104 S.

Ct. at 2100.

      Applying this principle to our facts as construed at summary judgment is

relatively straightforward. The record evidence shows that the officers paused

their pursuit and directed their attention elsewhere for several minutes after

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Hazleton ran into her home. Officer Trinidad removed Hazleton’s son from the

garage, then radioed for back-up. He then briefed Officer Sikos, who had just

arrived on the scene. Next, the officers sent a neighbor into the house to try and

convince Hazleton to come outside. Only after that effort failed did the officers

approach the doorstep to the interior of the home and themselves confront

Hazleton, who was just inside the door and speaking on the telephone. When

Hazleton again refused to come outside, the officers entered her home and arrested

her. Viewing this evidence in the light most favorable to Hazleton, we conclude

that “there was no immediate or continuous pursuit” of Hazleton. Welsh, 466 U.S.

at 753, 104 S. Ct. at 2099.

      The officers also argue that they are entitled immunity in light of United

States v. Santana, 427 U.S. 38, 96 S. Ct. 2406 (1976). They argue that Santana

stands for the proposition that “a suspect may not defeat an arrest which has been

set in motion in a public place . . . by the expedient of escaping to a private place.”

Id. at 43, 96 S. Ct. at 2410. But Santana does not stand for the idea that, any time

officers first identify a suspect in a public place, they thereafter have license to

enter the suspect’s home. Instead, Santana relies on there having been “some sort

of a chase.” Id. at 42–43, 96 S. Ct. at 2410. And the case’s holding is simply that

“[t]he fact that the pursuit . . . ended almost as soon as it began did not render it

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any less a ‘hot pursuit’ sufficient to justify the warrantless entry . . . .” Id.

Decided eight years after Santana, Welsh can best be viewed as clarifying that

“some sort of chase,” id. at 42–43, 96 S. Ct. at 2410, entails the “immediate or

continuous pursuit” of a suspect. Welsh, 466 U.S. at 753, 104 S. Ct. at 2099.

       Having concluded that such an “immediate or continuous pursuit” was not

present here, id., we hold that the officers were not in hot pursuit of Hazleton

when they entered her home without a warrant to arrest her for a misdemeanor

offense. Accepting the facts as Hazleton has alleged them, therefore, she has

established that the officers’ conduct amounted to a constitutional violation.

       Having reached this conclusion, we must next decide whether the

constitutional violation was clearly established at the time of Hazleton’s arrest in

May 2007. Said another way, we must inquire whether, at that time, entry into a

suspected misdemeanant’s home to effect her warrantless arrest, when the officers

first pause their pursuit for several minutes, was clearly established as falling

outside the hot pursuit exception to the warrant requirement. Though “our circuit

uses two methods to determine whether a reasonable officer would know that his

conduct is unconstitutional,” Edwards, 666 F.3d at 1296 (quotation marks and

alterations omitted), we need only use the first method here. That method requires

us to determine whether, at the time of the violation, the relevant case law applied

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the legal principle to “a concrete factual context” such that it would have been

obvious to a reasonable government actor in each of the officers’ positions that his

actions violated federal law. Hadley v. Guitierrez, 526 F.3d 1324, 1333 (11th Cir.

2008).

       Welsh provides this “concrete factual context.” Id. In Welsh, the Supreme

Court unequivocally rejected the contention that the arresting officers were in hot

pursuit of the suspect, where the officers arrived at the scene after the suspect had

left and then proceeded to arrest him at his home. Welsh, 466 U.S. at 753, 104 S.

Ct. at 2099. That holding placed the officers on notice that the hot pursuit

doctrine requires an “immediate or continuous pursuit of [a suspect] from the

scene of a crime.” Welsh, 466 U.S. at 753, 104 S. Ct. at 2099.3 As a result, it

would have been obvious to a reasonable government actor in the officers’

positions that, in the absence of an “immediate or continuous pursuit,” id., no hot

pursuit existed to justify the warrantless arrest of Hazleton in her home. See

Hadley, 526 F.3d at 1333.

       For these reasons, the district court was correct in concluding that, on the


       3
          The Supreme Court has since relied on that holding to distinguish Welsh from situations
in which exigent circumstances were found to exist. See Brigham City, UT v. Stuart, 547 U.S.
398, 406, 126 S. Ct. 1943, 1949 (2006) (noting that, in Welsh, “the ‘only potential emergency’
confronting the officers was the need to preserve evidence (i.e., the suspect’s blood alcohol
level)”).

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facts as construed at summary judgment, the exigent circumstances exception did

not apply, precluding summary judgment on Hazleton’s unlawful seizure and

arrest claims.

      Second, the officers argue that the district court erred in denying summary

judgment in their favor with respect to Hazleton’s excessive force claim. They

contend that they “used only that force necessary (minor physical force, the

application of pepper spray and the applications [sic] of handcuffs) . . . to take Ms.

Hazleton into custody.”

      The district court correctly observed that, “if an arresting officer does not

have the right to make an arrest, he does not have the right to use any degree of

force in making that arrest.” Bashir v. Rockdale County, 445 F.3d 1323, 1332

(11th Cir. 2006); see also Zivojinovich v. Barner, 525 F.3d 1059, 1071 (11th Cir.

2008) (stating that “even de minimis force will violate the Fourth Amendment if

the officer is not entitled to arrest or detain the suspect”). The officers

acknowledge using “minor physical force” and pepper spray in arresting Ms.

Hazleton. There is, thus, no doubt that the officers deployed at least “de minimis

force” in effectuating a warrantless arrest that we have already said is, for our

purposes here, unlawful. Zivojinovich, 525 F.3d at 1071. As a result, we

conclude that the district court did not err in denying summary judgment on this

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issue.

         Having concluded that the district court did not err in its treatment of the

exigent circumstances and excessive force issues, we affirm its denial of qualified

immunity, and therefore of summary judgment to the officers.

         AFFIRMED.




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