     Case: 17-20797      Document: 00514753345         Page: 1    Date Filed: 12/10/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                      No. 17-20797                      December 10, 2018
                                                                           Lyle W. Cayce
STEVEN R. CHARLOT,                                                              Clerk


              Plaintiff - Appellant

v.

CITY OF HOUSTON; OFFICER L. D. SMITH; SERGEANT FORD;
SERGEANT SEALES; M. J. GLOVER; F. A. MEDINA; E. MARTINEZ;
CHARLES A. MCCLELLAND,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CV-3028


Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
       Police officers sought and received a warrant authorizing them to
perform an anal cavity search on Steven Charlot. Charlot sued for violations
of his Fourth Amendment rights. We affirm the district court’s grant of
summary judgment for the defendants.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 17-20797      Document: 00514753345         Page: 2    Date Filed: 12/10/2018



                                      No. 17-20797
                                             I
       Members of the Houston Police Department surveilled Charlot as he
appeared to engage in multiple drug transactions, and then stopped him for
traffic infractions. After Charlot consented to the search of his vehicle, officers
found a pill bottle containing carisoprodol in someone else’s name. They
arrested him for possession of a controlled substance. Officers patted Charlot
down at the scene of the arrest and found no illegal narcotics on his person.
       Based on information that Charlot may have been concealing crack
cocaine on his person, police conducted another search incident to arrest at the
Houston Police Department’s central jail facility. Officer Leonard Smith patted
Charlot down and said that he felt something protruding about one inch from
between Charlot’s buttocks. A jail employee confirmed that he also felt
something between Charlot’s buttocks. Smith asked his superior officer,
Sergeant Curtis Ford, for permission to perform a strip search, but Ford said,
after conversation with his supervising lieutenant, that “the only way to
determine if Charlot had anything concealed was if he consensually removed
the object or if [the officers] could convince him to remove it.” Charlot insisted
that there was nothing there, and refused either to allow officers to remove any
object or to remove it himself. On Ford’s instructions, Smith and another
officer, Officer Michael Glover, transported Charlot to a hospital that would
perform a cavity search upon receiving a warrant. 1
       During the same period, Officer Frank Medina filled out an affidavit
describing the basis for the warrant application. In relevant part, it explained:




       1 In Smith’s written report, he noted that he had told the sergeant that he was only
requesting a strip search and not a cavity search, but the sergeant ordered a cavity search.
It also appears that the officers had to take Charlot to multiple hospitals before finding a
hospital that would perform the cavity search.
                                             2
    Case: 17-20797     Document: 00514753345      Page: 3    Date Filed: 12/10/2018



                                  No. 17-20797
            Officers Smith and Glover transported the suspect to
            central jail after he was charged with possession of a
            controlled substance for the soma. During a search
            incident to arrest Officer Smith stated that he felt
            something was protruding from in between Mr.
            Charlot’s buttocks. Officer Smith advised the jail staff,
            which then searched the suspect upon entering the
            facility and observed [sic] the jailor to state that he
            also felt something protruding from between Mr.
            Charlot’s buttocks. Mr. Charlot denied that anything
            was in between his cheeks; Officer Medina knows this
            to be consistent with a [sic] narcotics suspect in an
            attempt to hide contraband. As a result of the
            circumstances and the behavior of Mr. Charlot officers
            have reason to believe that Mr. Charlot is hiding
            contraband inside his person in an attempt to conceal
            from law enforcement. Mr. Charlot was asked to give
            officers consent to remove the contraband from his
            person and Mr. Charlot denied officers permission and
            stated he would not either.

The county magistrate signed a warrant authorizing the search of Charlot’s
anal cavity for crack cocaine or pills.
      Smith told the doctor that the officers were concerned that Charlot “had
concealed illegal narcotics in his buttocks area and possibly now had secreted
[them] inside his anus.” He explained the need “to determine if [there were]
any concealed narcotics for Charlot’s safety and to further the investigation.”
When the doctor was presented with the warrant, she performed a rectal
examination; Smith remained in the room during the performance of the
search. The doctor found nothing inside Charlot’s rectum. 2
      Charlot pleaded guilty to possessing a controlled substance. He then filed
suit under 42 U.S.C. § 1983 against the City of Houston; former Police Chief



      2 In his incident report, Smith suggested that Charlot was able to discard any
contraband while he was in the jail waiting to be searched.
                                          3
    Case: 17-20797     Document: 00514753345     Page: 4   Date Filed: 12/10/2018



                                  No. 17-20797
Charles McClelland, Jr.; Sergeant Ford; Sergeant Traci Seals; Officers Medina,
Smith, Glover, and Eduardo Martinez; and two unnamed officers. His
complaint alleged that the individual sergeants and officers violated his rights
under the Fourth and Fourteenth Amendments, and that former Chief
McClelland and the City were liable for a failure to “instruct, supervise,
control, and discipline” the officers.
      On motion, the district court dismissed all claims against Sergeants Ford
and Seals and Officers Medina and Martinez. It concluded that Charlot failed
to state a claim against the four movants because he did not challenge “the
validity of the search warrant or . . . the veracity of the supporting
affirmations.” About five months later, Charlot filed an amended complaint
without the court’s leave. The amended complaint reasserted claims against
the dismissed parties and elaborated on alleged infirmities in the affidavit
Medina presented to obtain the warrant. The district court struck the amended
complaint because it failed to comply with timing requirements in the Federal
Rules.
      Before the district court struck the amended complaint, all defendants—
including the ones who had already been dismissed—moved for summary
judgment. The district court granted the motion for summary judgment as to
all remaining defendants. Charlot appealed from the district court’s order
granting the remaining defendants’ motion for summary judgment, though not
from the order dismissing Medina, Martinez, and the two sergeants.
                                         II
      Qualified immunity protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory




                                         4
     Case: 17-20797       Document: 00514753345         Page: 5    Date Filed: 12/10/2018



                                      No. 17-20797
or constitutional rights of which a reasonable person would have known.” 3 The
Court has explained that “[q]ualified 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.” 4
       We complete a two-step analysis to review a motion for summary
judgment based on qualified immunity: “(1) whether an officer’s conduct
violated a federal right and (2) whether this right was clearly established.” 5 A
right is clearly established when “controlling authority—or a robust consensus
of persuasive authority—[defines] the contours of the right in question with a
high degree of particularity.” 6
       Summary judgment is warranted “when there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of
law.” 7 “A qualified immunity defense alters the usual summary judgment
burden of proof.” 8 When a defendant raises a qualified immunity defense on
summary judgment, “the burden then shifts to the plaintiff, who must rebut
the defense by establishing a genuine fact issue as to whether the official’s
allegedly wrongful conduct violated clearly established law.” 9
                                            III
       Charlot argues that the district court erred in granting the defendants
summary judgment on his § 1983 claims. He does not distinguish between the



       3 Shumpert v. City of Tupelo, 905 F.3d 310, 319–20 (5th Cir. 2018) (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009)).
       4 Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (internal quotation marks

omitted).
       5 Shumpert, 905 F.3d at 320. After the Supreme Court’s decision in Pearson v.

Callahan, we may consider these steps in either order. Pearson, 555 U.S. at 236.
       6 Shumpert, 905 F.3d at 320.
       7 Hanks v. Rogers, 853 F.3d 738, 743 (5th Cir. 2017).
       8 Id. at 744.
       9 Id.; see Shumpert, 905 F.3d at 320 (citing Hyatt v. Thomas, 843 F.3d 172, 177 (5th

Cir. 2016)).
                                             5
     Case: 17-20797      Document: 00514753345        Page: 6     Date Filed: 12/10/2018



                                     No. 17-20797
defendants who were already dismissed from the case and the defendants for
whom the district court granted summary judgment. He similarly does not
distinguish between claims and factual allegations that he raised in his
stricken amended complaint and claims that he raised in his original
complaint. We largely will not sift through these issues, however. Even under
a generous characterization of Charlot’s surviving claims, the district court did
not err in granting summary judgment for the defendants.
                                            A
       First, Charlot argues that Medina swore to false information in his
affidavit. In Franks v. Delaware, the Supreme Court held that an officer is
“liable for swearing to false information in an affidavit in support of a search
warrant, provided that: (1) the affiant knew the information was false or acted
with reckless disregard for the truth; and (2) the warrant would not establish
probable cause without the false information.” 10 This extends to material
omissions. 11 Charlot argues that Medina knew that a cavity search was not
necessary and that a strip search would be sufficient to reveal any contraband,
but misleadingly suggested in his affidavit that a strip search had already been
performed. He avers that without this misrepresentation, there would not have
been probable cause for the magistrate to issue the warrant, because the
magistrate would have required a strip search prior to issuing a warrant for a
cavity search.
      But Charlot points to no false or misleading representation in Medina’s
affidavit, let alone any indication that Medina knowingly or recklessly swore
to false or misleading information. The affidavit said nothing about a strip
search, and pointed to “the circumstances and the behavior of Mr. Charlot”—


      10  Thomas v. Williams, 719 F. App’x 346, 350 (5th Cir. 2018) (discussing Franks, 438
U.S. 154, 171 (1978).
       11 See Winfrey v. Rogers, 901 F.3d 483, 494 (5th Cir. 2018).

                                            6
     Case: 17-20797       Document: 00514753345         Page: 7     Date Filed: 12/10/2018



                                       No. 17-20797
not any visual identification of contraband—as justifying Medina’s belief that
a cavity search was necessary. It specifically stated that Smith and the jailor
“felt something protruding” from between Charlot’s buttocks. This information
was not false or misleading, and, contrary to Charlot’s arguments on appeal,
was consistent with Smith’s report and deposition testimony. 12 The district
court did not err in granting the defendants summary judgment on this point. 13
                                             B
       Second, Charlot argues that the officers knew or had reason to know that
the location listed on the warrant—Charlot’s anal cavity—was the incorrect
location to search for the alleged contraband, and unconstitutionally proceeded
with the search regardless. We have held that officers must make reasonable
efforts to correctly identify the target of a search; that is, they should attempt
to ensure that the search location corresponds to the location described in the
warrant. 14 Here, Charlot does not claim that any officer misidentified the
location described by the warrant. Instead, he repackages his argument that
the cavity search was unjustified, even with a warrant, because the officers
should have known that a strip search would be sufficient to locate the object
that Smith and the jailor felt. As we will explain, the defendants are entitled
to qualified immunity on the underlying issue of whether they were entitled to


       12  As the district court correctly observed, Smith’s personal views about what type of
search was or was not necessary were irrelevant to whether the affidavit established probable
cause, as long as the affidavit itself was accurate and non-misleading. Further, the affidavit
was wholly consistent with Smith’s comment to the hospital that Charlot had possibly
secreted narcotics inside his anal cavity at the time of the search.
        13 In any event, even if Charlot demonstrated a genuine dispute over whether Medina

offered false information on the affidavit, he has not shown that the other defendants besides
Medina—who is not even properly a party on appeal—consequently violated his rights. We
have made clear that liability under Franks only extends to the officer or officers who signed
or presented the affidavit used to obtain the warrant and anyone who intentionally provided
information for use in the affidavit. See Melton v. Phillips, 875 F.3d 256, 263–64 (5th Cir.
2017) (en banc).
        14 See Gerhart v. McLendon, 714 F. App’x 327, 333–34 (5th Cir. 2017) (per curiam)

(collecting cases).
                                              7
     Case: 17-20797       Document: 00514753345         Page: 8     Date Filed: 12/10/2018



                                       No. 17-20797
rely on the warrant. We therefore conclude that they are entitled to qualified
immunity on this point as well.
                                             C
       The crux of Charlot’s argument is that even with a warrant, the cavity
search was unconstitutional. 15 The Supreme Court has recognized that
invasive bodily searches implicate an individual’s “most personal and deep-
rooted expectations of privacy,” and the “Fourth Amendment analysis thus
require[s] a discerning inquiry into the facts and circumstances to determine
whether the intrusion was justifiable.” 16 The fundamental question here is not
whether the magistrate should have authorized the search in the first instance,
however—it is whether the defendants violated Charlot’s clearly established
rights in seeking, obtaining, and then executing the warrant.
       It is ordinarily “the magistrate’s responsibility to determine whether the
officer’s allegations establish probable cause and, if so, to issue a warrant
comporting in form with the requirements of the Fourth Amendment.” 17 A
warrant issued “by a non-biased magistrate is the ‘clearest indication’ that
officers proceeded ‘in an objectively reasonable manner.’” 18 When a plaintiff
challenges a search authorized by warrant, our qualified immunity analysis
hinges on whether the defendant unreasonably relied on the warrant. 19 An
officer is qualifiedly immune from suit over his application for a search warrant
“unless, ‘on an objective basis, it is obvious that no reasonably competent



       15 Charlot appears to argue both that the cavity search was unnecessary and that it
used excessive force.
       16 Winston v. Lee, 470 U.S. 753, 760 (1985) (discussing Schmerber v. California, 384

U.S. 757, 767–68 (1966)).
       17 Messerschmidt, 565 U.S. at 547 (2012) (quoting United States v. Leon, 468 U.S. 897,

921 (1984)).
       18 United States v. Triplett, 684 F.3d 500, 504 (5th Cir. 2012) (quoting Messerschmidt,

565 U.S. at 546).
       19 Messerschmidt, 565 U.S. at 546–47.

                                              8
     Case: 17-20797        Document: 00514753345          Page: 9     Date Filed: 12/10/2018



                                        No. 17-20797
officer would have concluded that a warrant should issue.’” 20 Once a warrant
issues, an officer can only be held liable for acting on that warrant when “a
reasonably well-trained officer would have known that the search or seizure
was illegal despite the magistrate’s authorization.” 21 At all stages, “in the
ordinary case, an officer cannot be expected to question the magistrate’s
probable-cause determination” 22—so, “where a magistrate acts mistakenly in
issuing a warrant but within the range of professional competence of a
magistrate, the officer who requested the warrant cannot be held liable.” 23
       Perhaps in retrospect the magistrate should not have authorized the
cavity search, 24 but we agree with the district court that Charlot has failed to
demonstrate that the defendants acted unreasonably in requesting or
complying with the warrant—as he must to overcome the assertion of qualified
immunity. Charlot argues that the officers should have known that a cavity
search was unnecessary and not the least intrusive option. But the Supreme
Court “has repeatedly stated that reasonableness under the Fourth
Amendment does not require employing the least intrusive means, because the
logic of such elaborate less-restrictive-alternative arguments could raise
insuperable barriers to the exercise of virtually all search-and-seizure




       20 See Spencer v. Staton, 489 F.3d 658, 661 (5th Cir. 2007), as revised (July 26, 2007)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); accord Jordan v. Brumfield, 687 F. App’x
408, 413 (5th Cir. 2017) (per curiam).
       21 Jordan, 687 F. App’x at 413 (quoting Triplett, 684 F.3d at 504) (alterations omitted).
       22 Messerschmidt, 565 U.S. at 547 (quoting Leon, 468 U.S. at 921).
       23 Id. at 547–48 (quoting Malley, 475 U.S. at 346 n.9).
       24 This case presents certain parallels to our decision in United States v. Gray, in which

we concluded that a warrant-authorized proctoscopic search for hidden drugs was
unreasonably executed—although we ultimately held the drugs admissible under the good-
faith exception to the exclusionary rule. Gray, 669 F.3d 556 (5th Cir. 2012), vacated and
remanded on other grounds by Gray v. United States, 568 U.S. 802 (2012). Charlot does not
argue that this case is controlled by Gray, however, and does not present Gray or any similar
cases in his briefing. Instead, as the defendants observe, he relies principally on cases
addressing warrantless cavity searches, including several searches in public view.
                                               9
    Case: 17-20797       Document: 00514753345          Page: 10     Date Filed: 12/10/2018



                                       No. 17-20797
powers.” 25 Charlot has not demonstrated that the search was so clearly
unconstitutional that the defendants were prohibited from relying on the
warrant. 26 Appearing to concede that the law is not clearly established on this
point, he states in his briefing that this would be the first case in the nation
“where a cavity search authorized by a warrant was still unconstitutional.” We
cannot conclude, from the facts and arguments Charlot has presented, that the
district court erred in granting qualified immunity to the defendants.

                                            ***
       Charlot has not carried his burden to show a genuine factual dispute
over whether the defendants’ conduct violated clearly established law. We also
conclude that the defendants were entitled to summary judgment on Charlot’s
bystander and municipal liability claims, which Charlot does not address in
his briefing. 27
                                             IV
       We affirm the judgment of the district court.




       25 Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822,
837 (2002); accord City of Ontario v. Quon, 560 U.S. 746, 763 (2010). We do not suggest that
whether a method of search is the least intrusive will never be relevant. For example, in
Gray, we observed that the availability of less intrusive means to retrieve hidden drugs
weighed against the reasonableness of a proctoscopic examination. See Gray, 669 F.3d at 561.
       26 Cf. Gray, 669 F.3d at 566 (“[A] warrant . . . that authorizes a medical procedure

search of a specific area of the body but does not prescribe any off-limits procedures will be
subject to good faith [for suppression purposes] unless the police misled the magistrate, the
magistrate abandoned her judicial role, or the warrant so clearly lacked probable cause.”).
       27 See, e.g., United States v. Scroggins, 599 F.3d 433, 447 (5th Cir. 2010) (“Claims not

pressed on appeal are deemed abandoned.” (quoting Davis v. Maggio, 706 F.2d 568, 571 (5th
Cir. 1983))); United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (per curiam) (“It
has long been the rule in this circuit that any issues not briefed on appeal are waived.”).
                                             10
