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

                                      No. 16-60537                                   FILED
                                                                                  April 3, 2017
                                                                                Lyle W. Cayce
KERMIT O. ROGERS,                                                                    Clerk

              Plaintiff - Appellant

v.

LEE COUNTY, MISSISSIPPI; CITY OF TUPELO, MISSISSIPPI; JIM H.
JOHNSON, In his Official Capacity as Sheriff of Lee County, Mississippi;
SAMUEL T. WARREN, In his Individual capacity as a Lee County Sheriff’s
Department Law Enforcement Officer; PAUL HOWELL, In his individual
capacity as a Lieutenant with the city of Tupelo Police Department/North
Mississippi Narcotics Unit,

              Defendants - Appellees



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:13-CV-243


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
       Plaintiff-Appellant Kermit O. Rogers appeals the district court’s final
judgment dismissing all of his claims against Defendants-Appellees Sam
Warren and Paul Howell in their individual capacities; the sheriff of Lee


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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County in his individual capacity; the City of Tupelo, Mississippi; Lee County,
Mississippi; and the North Mississippi Narcotics Unit. For the reasons set out
below, we REVERSE the dismissal of his claims against Warren and Howell
relating to the warrantless search but otherwise AFFIRM.

I.     Background 1
       In 2009, Plaintiff-Appellant Kermit O. Rogers was the subject of a valid
search warrant allowing the search of the following property: “320 CR 401,
Shannon, Lee County, Mississippi, together with all approaches and
appurtenances thereto. Also, all vehicles and out buildings on the property.”
The officers found 5.89 grams of crack cocaine in the house located on 320 CR
401, as well as 189.73 grams of crack cocaine in a red truck parked near a
building some distance away and visibly identified as 320A CR 401.
       The State of Mississippi only charged Rogers with three sales of crack
cocaine, not for the crack cocaine found during the execution of the search
warrant. He received a thirty-year sentence on each sale, with twenty years of
each suspended and the remaining ten years on each to be served concurrently.
He was later released by the State on probation prior to serving time on his
federal charge, which is the subject of this suit.
       The United States charged Rogers with possession with intent to
distribute in excess of fifty grams of a substance containing cocaine base in
violation of 21 U.S.C. § 841(a), (b)(1)(a), which necessarily included the drugs
found in the red truck parked outside the 320A building. Rogers filed a motion
to suppress the evidence of the drugs found in the truck, arguing that the truck



       1Unless otherwise noted, the facts in this section come from United States v. Rogers,
481 F. App’x 157, 158 (5th Cir. 2012) and the undisputed facts set out in the parties’ briefs in
this appeal.
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was not parked on the 320 property covered by the warrant, but instead was
parked on completely different property, the 320A property, and was therefore
beyond the scope of the warrant. Rogers entered a conditional plea of guilty,
reserving his right to appeal any determination on his motion to suppress. The
district court denied the motion without holding a hearing and accepted his
conditional guilty plea, and Rogers appealed.
       The Fifth Circuit panel vacated the district court’s denial of Rogers’s
motion to suppress and remanded to the district court for a hearing on the
motion. The panel noted that the parties disputed whether the truck was
parked on the 320 property or a separate property, and whether the officers
made a reasonable effort to ascertain and identify whether the truck was on
the property identified in the warrant. In particular, the panel found that the
court’s findings were based on the government’s “unsupported statements in
its pleadings, [which] were insufficient to determine that the officers made a
reasonable effort to identify whether the truck was on the property listed in
the warrant.” 2 Thus, the panel remanded for an evidentiary hearing.
       On remand, the district court held the hearing and granted Rogers’s
motion to suppress and excluded the evidence of the drugs found in the truck
under the “fruit of the poisonous tree” doctrine. 3 It noted that it had denied
Rogers’s earlier motion to suppress without a hearing because “the
Government represented to the court: (1) that ‘the officers found a larger
amount of crack cocaine inside a red truck parked outside the residence [at 320
CR 401],’ and (2) that ‘[t]he red truck belonging to the defendant was




       2 481 F. App’x at 160.
       3 United States v. Rogers, No. 1:09CR139-M-S, 2013 WL 435946, at *4 (N.D. Miss. Feb.
4, 2013).
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found parked in the back of the residence located at 320 CR 401.’” 4 The court
concluded that both representations were false.
      The court noted that the warrant described the place to be searched as
“320 CR 401, Shannon, Lee County, Mississippi, together with all approaches
and appurtenances thereto. Also, all vehicles and out buildings on the
property.” 5 The court continued:
      The property where the red truck was located—320A CR 401—is
      in no way part of that description. It has a different address. It is
      owned by someone other than the defendant. It is at least 200
      yards away from the property at 320. It has its own driveway
      leading to the main road. It has its own metered connection to the
      power company—in someone else’s name. It has a separate E911
      address—registered to someone other than the defendant. It is
      barely visible from the property covered under the warrant.
      Though a small dirt track leads from the back of the property at
      320 to the property at 320A, one must wind around a turn and
      travel past various structures and fenced pastures to reach it.
      The investigating officers [including Warren and Howell] knew
      that the situation was problematic enough that they now—for the
      first time ever—claim they called the judge issuing the warrant in
      an effort to shore it up. They made no effort whatsoever to
      document the alleged telephone call, and the issuing judge,
      according to the officers and representations by the Assistant
      United States Attorney, had absolutely no recollection of having
      received such a call. Indeed, the government did not even call him
      as a witness. The court gives the alleged call no weight at all.
      Though Fourth Amendment issues can sometimes be thorny, there
      is nothing difficult about the decision in this case because, by any
      rational measure, the law enforcement officers’ search of Rogers’
      truck was unreasonable. Neither the truck nor the building by
      which it was parked were within the scope of the search warrant,




      4   Id. at *1 (alterations and emphasis in district court opinion).
      5   Id. at *3.
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      and the officers’ purported telephone call neither expanded the
      scope of the warrant, nor constituted a new warrant. 6
      As the court further explained, the telephone call would have been
insufficient to satisfy the warrant requirement under federal law (e.g., it was
not given “under oath or affirmation” or memorialized in writing after the fact
under Fed. R. Crim. P. 4.1), 7 and at any rate Mississippi law does not allow
officers to obtain or extend a warrant by telephone. 8
      The court also concluded that the search was not protected by the good
faith exception to the warrant requirement (also relevant to this appeal), which
the court accurately summarized as follows:
      The standard for the good-faith exception is that “evidence
      obtained by law enforcement officials acting in objectively
      reasonable good-faith reliance upon a search warrant is admissible
      in the [prosecution’s] case-in-chief even though the affidavit on
      which the warrant was based was insufficient to establish probable
      cause.” United States v. Pena–Rodriguez, 110 F.3d 1120, 1130 (5th
      Cir. 1997). “Issuance of a warrant normally suffices to establish
      good faith on the part of law enforcement who conduct a search
      pursuant to the warrant.” Id. Law enforcement officials cannot
      establish objective good faith, however, when the warrant is “based
      on an affidavit ‘so lacking in indicia of probable cause as to render
      the official’s belief in its existence entirely unreasonable.’”
      Id. quoting [United States v. Leon, 468 U.S. 897, 923 (1984)]. The
      good-faith exception to the exclusionary rule permits officers to
      rely upon a warrant supported by an affidavit alleging more than
      wholly conclusory statements even if the affidavit is ultimately
      found not to establish probable cause. Consequently, a skeletal
      affidavit does not justify good-faith reliance on a warrant. 9




      6 Id. at *3-4.
      7 Id. at *4.
      8 White v. State, 842 So. 2d 565 (Miss. 2003).
      9 2013 WL 435946, at *5.

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      The court concluded that the good faith exception did not apply to show
that the officers were objectively reasonable in relying “upon the only warrant
issued (for 320 CR 401) as a basis to search 320A” because “[t]he evidence
presented strongly supports Rogers’ view of events, and cross-examination of
the witnesses [including Warren and Howell] left them without credibility.” 10
The court noted a number of “troubling aspects of the case” and concluded:
“There is a palpable difference between doing the best one can in interpreting
and executing a search warrant that is, ultimately, found wanting—and
knowingly cutting corners while executing the warrant, then relying upon the
good-faith exception to the exclusionary rule to rescue the unlawful search. The
officers in the present case chose the latter.” 11
      The district court therefore excluded the evidence, which resulted in the
government dismissing the case. Rogers spent a total of approximately 452
days in federal incarceration before his conviction was overturned. Rogers then
filed this action alleging multiple violations of his civil rights under 42 U.S.C.
§ 1983, against Warren and Howell and against the municipal defendants. He
asserted claims of (1) unlawful seizure, unlawful search, and false
imprisonment under the Fourth and Fourteenth Amendments, as well as
conspiracy to do the same, in that the defendants allegedly instituted the
proceedings, prosecuted, convicted, and confined Rogers “with knowledge that
the evidence procured against [Rogers] was unlawful and inadmissible”; (2)
violations of procedural and substantive due process under the Fourteenth
Amendment, in that the defendants’ actions allegedly “deprived [Rogers] of his
right to fundamental fairness in a criminal proceeding”; (3) failure to train



      10   Id.
      11   Id. at *7.
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and/or supervise by the municipal defendants; and (4) supplemental state law
claims, including malicious prosecution.
       Eventually, the district court granted the defendants’ motions for
summary judgment through two orders, dismissing Rogers’s claims against all
defendants. 12 On appeal, Rogers does not challenge any of the district court’s
findings as to the municipal defendants, and he expressly concedes his appeal
with respect to the sheriff, leaving only his claims against Warren and Howell.
With respect to the officers, the district court determined: (a) that Warren and
Howell are entitled to qualified immunity on the unlawful search because they
acted objectively reasonably; (b) that Rogers failed to make out a substantive
due process claim under the Fourteenth Amendment; and (c) that he failed to
make out a viable claim under state law. Rogers timely appealed.

II.    Jurisdiction and Standard of Review
       The district court had federal question jurisdiction under 28 U.S.C.
§ 1331. We have appellate jurisdiction under 28 U.S.C. § 1291. We review the
grant of summary judgment under Fed. R. Civ. P. 56 de novo, i.e., the usual
Rule 56 standards. 13 Summary judgment is only appropriate “if 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.” 14


       12  The district court initially entered an order and memorandum opinion granting the
defendants’ motions for summary judgment, see Rogers v. City of Tupelo, Miss., No.
1:13CV243-SA-DAS, 2015 WL 3450266 (N.D. Miss. May 29, 2015) (hereinafter “First MSJ
Opinion”). Rogers filed a motion for reconsideration, which the district court granted in part
in a brief order, see Rogers v. City of Tupelo, Miss., No. 1:13CV243-SA-DAS, 2016 WL 1249156
(N.D. Miss. Mar. 28, 2016). On reconsideration, the district court again granted the
defendants’ motions for summary judgment in full, see Rogers v. City of Tupelo, No.
1:13CV243-SA-DAS, 2016 WL 3849563 (N.D. Miss. July 13, 2016) (hereinafter “Second MSJ
Opinion”).
        13 James v. Gonzalez, 348 F. App’x 957, 959 (5th Cir. 2009).
        14 Fed. R. Civ. P. 56.

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III.    Analysis
        A.    The District Court Erred By Granting Qualified Immunity
              To Warren And Howell On The Ground That They Acted
              Objectively Reasonably.

        Even though the district court correctly concluded that the search of the
truck on the 320A property took place without a warrant and was not saved by
the automobile exception, it found that both Warren and Howell are entitled
to qualified immunity because they acted “objectively reasonably.” 15 The
district court reversibly erred under the summary judgment standard.
        Resolving the qualified immunity question at summary judgment
involves a two-pronged inquiry. The first prong is “whether the facts, ‘[t]aken
in the light most favorable to the party asserting the injury, . . . show the
officer’s conduct violated a [federal] right[.]’” 16 The second prong is “whether
the right in question was “clearly established” at the time of the violation.” 17
“‘[T]he salient question . . . is whether the state of the law’ at the time of an
incident provided ‘fair warning’ to the defendants ‘that their alleged [conduct]
was unconstitutional.’” 18
        Courts have discretion to decide the order in which to engage these
        two prongs. But under either prong, courts may not resolve
        genuine disputes of fact in favor of the party seeking summary
        judgment. This is not a rule specific to qualified immunity; it is
        simply an application of the more general rule that a “judge’s
        function” at summary judgment is not “to weigh the evidence and
        determine the truth of the matter but to determine whether there
        is a genuine issue for trial.” Summary judgment is appropriate
        only if “the movant shows that there is no genuine issue as to any


        15First MSJ Opinion, 2015 WL 3450266, at *3.
        16Tolan v. Cotton, 134 S. Ct. 1861, 1865, 188 L. Ed. 2d 895 (2014) (quoting Saucier v.
Katz, 533 U.S. 194, 201 (2001)).
       17 Id. at 1866 (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002)).
       18 Id. (quoting Hope, 536 U.S. at 741).

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      material fact and the movant is entitled to judgment as a matter
      of law.” In making that determination, a court must view the
      evidence “in the light most favorable to the opposing party.” 19
      The district court addressed both prongs. First, it correctly concluded
that the search of the red truck on the 320A property was conducted without a
warrant, and it also correctly noted that “[a] warrantless search is
presumptively unreasonable unless it falls within an exception to the Fourth
Amendment’s warrant requirement. 20 The court explained, again correctly,
that the search of the truck did not fall under the Fourth Amendment’s
automobile exception because “Rogers was either several miles down the road
at his mother’s house or being held in the residence by other officers at 320 CR
401,” so “there was no exigent circumstance regarding the vehicle’s mobility
which would excuse a warrantless search of the automobile.” 21
      Second, the district court concluded that this warrantless search violated
a clearly established constitutional right, specifically the Fourth Amendment’s
“right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” 22 Moreover, the district court
agreed with the criminal court in the previous case that it was impossible for
the officers to rely on the telephone extension of the warrant because
“Mississippi does not recognize warrants procured telephonically” under
White, which was decided approximately six years before this search. 23
      Despite all of those correct findings, the district court nevertheless
concluded that Warren and Howell “were objectively reasonable in assuming


      19  Id. (citations omitted).
      20  First MSJ Opinion, 2015 WL 3450266, at *4 (citing United States v. Guzman, 739
F.3d 241, 245 (5th Cir.2014) (citing United States v. Karo, 468 U.S. 705, 717 (1984))).
       21 Id.
       22 Id. at *5 (citing cases).
       23 Id.

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the 320A building and surrounding areas were part of the same parcel as 320
CR 401.” 24 It based this finding on the officers’ own accounts:
      Both officers testified that they believed the 320A CR 401 property
      to be part of the same property as 320 CR 401 and thus covered by
      the warrant. Warren testified that to reach the 320A building, he
      had to walk down a dirt path about two hundred yards. He
      indicated that he saw the designation that the building was located
      at 320A, but thought it was for electric meter purposes only. The
      officers continually referred to the 320A building as an
      “outbuilding” or “shop building.” Moreover, at least one vehicle
      surrounding that building was registered in Kermit Rogers’ name
      and at the address listed in the search warrant. Therefore, they
      assert their actions were objectively reasonable in light of the
      clearly established law. . . .
      The Court finds that the officers were objectively reasonable in
      authorizing the search of the red truck parked outside the 320A
      building. The search warrant indicated the areas to be searched to
      include all appurtenances, outbuildings and vehicles surrounding
      320 CR 401. Once officers ran the tag on the red truck, which came
      back that it was registered to the Plaintiff at the 320 CR 401
      address, it would not be unreasonable for them to assume the
      “outbuilding” metered as 320A CR 401 was covered under the
      warrant. Also, Warren’s authorization of the search of the red
      truck parked outside 320A CR 401 was not unreasonable in light
      of the assurances given by the Justice Court Judge Pat Carr that
      searching that property was “fine.” The Court cannot find that the
      officers were plainly incompetent or knowingly violated the law on
      the basis of the record. Therefore, even though the 320A building
      was over two hundred yards away, not visible from the residence
      explicitly covered by the search warrant, and equipped with a
      separate meter, the Court finds that the officers acted in an
      objectively reasonable manner in authorizing the search of the red
      truck. 25




      24   Id.
      25   2015 WL 3450266, at *5-6 (citation omitted).
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       We conclude the district court did not properly apply the summary
judgment standard. First, the district court stated without qualification that
“[w]hether the official acted with objective reasonableness is an issue of law
reserved for the court.” 26 That question is only an issue of law if the facts are
undisputed. The case the district court cited for that proposition took the
plaintiff’s alleged facts as true, then determined whether those facts, as a
matter of law, violated his constitutional rights. 27 A finding of objective
reasonableness is not appropriate, however, if the material facts are in
dispute, 28 as they are in this case.
       The district court based its finding that Warren and Howell acted with
objective reasonableness on their accounts of how they subjectively viewed the
relationship between the 320 and 320A properties. As illustrated by the district
court’s description of the properties in the previous criminal case, supra, there
is a great deal of evidence that severely undermines the officers’ accounts.
Moreover, there is a wealth of other summary judgment evidence contradicting
the officers’ subjective testimony that they acted reasonably.
       Most notably, the officers claim their telephone call to the judge showed
that they acted objectively reasonably, essentially by relying on the judge’s
opinion that the search of the truck was acceptable under the circumstances.
There are several major disputes precluding summary judgment on this point.



       26  Id. at *5 (citing Williams v. Bramer, 180 F.3d 699 (5th Cir. 1999)).
       27  See Williams, 180 F.3d at 701.
        28 See Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) (“Rule 56 still

has vitality in qualified immunity cases if the underlying historical facts in dispute that are
material to the resolution of the questions whether the defendants acted in an objectively
reasonable manner in view of the existing law and facts available to them.”); see also Mangieri
v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994) (noting that in Lampkin, “We concluded that
this court would be unable to make the determination of the objective reasonableness of the
officer’s activities ‘without settling on a coherent view of what happened in the first place.’”).
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First, Mississippi law does not allow for telephone warrants or extensions
under White, but White went further than that: it set out circumstances that
might show an officer still acted objectively reasonably under Leon, supra:
      Today, we adopt the Leon good faith exception to warrantless
      searches and further find that it applies to the case at bar. The
      officer stated that a district attorney had informed them in police
      procedures training that such warrants were permissible under
      appropriate circumstances. Further, the officer stated that he had
      obtained such a warrant on one or two prior occasions. Beyond
      that, the oral statement was given under oath to a neutral
      magistrate. More importantly, the following morning, the officer
      filled out a written warrant and record of the telephone
      conversation and presented it to the authorizing judge. Thus, a
      follow up procedure utilizing some, though admittedly not all, of
      the generally recognized safeguards was used here. Instead of
      immediately entering the apartment and conducting a warrantless
      search, these officers “did their duty” by pursuing a more careful,
      prudent course. Thus, the officers had a reasonable good faith
      belief that they were executing a valid warrant, and the
      exclusionary rule should not operate in this case. 29
      The 2009 search of Rogers’s property took place well after White, and
virtually none of the factors identified by the White court as indicating objective
reasonableness were present here. There were no contemporaneous written
records as to what Warren told the judge over the phone, no undisputed
evidence that it was even given under oath, and no follow-up procedure
whatsoever to document the call.
      The failure to document the call in itself might be fatal to Warren and
Howell’s claim of objective reasonableness relating to the call under
Mississippi law, but even if we examine the later testimony relating to the call,
the officers still are not entitled to summary judgment.



      29   White, 842 So. 2d at 571-72 (citation omitted).
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      The call is only helpful to the defendants if it helps to show objective
reasonableness. Because Mississippi law precludes extensions of warrants by
telephone, the call cannot help them if Warren intended it to extend the scope
of the warrant. If Warren made the call merely to confirm whether the truck
was covered by the existing 320 property warrant, he could only rely on the
judge’s permission if he accurately told the judge the relevant facts (e.g., the
distance between the 320 and 320A properties and the fact that the red truck
was parked outside the 320A property).
      Judge Carr’s testimony years later raises factual disputes as to those
points, however. Judge Carr did not object when Howell’s attorney
characterized Warren’s call as seeking an extension of the warrant. When
Rogers’s attorney asked if Warren told him “why he thought the property was
suspicious” Judge Carr replied, “I don’t know the particulars. Just said it was
adjoining property close at hand and he would like to check it.” Judge Carr also
said Warren did not tell him whether or not any narcotics had been found at
the property covered by the warrant. Thus, Judge Carr’s testimony does not
demonstrate that Warren told him all of the relevant facts; indeed, it suggests
the opposite (“adjoining property close at hand”). There is, in short, a genuine
dispute as to the contents of the call.
      There is also a factual dispute as to when the officers knew the red truck
parked outside the 320A property was registered to Rogers at the 320 property.
Deposition testimony established that the phone call in question took place on
Judge Carr’s lunch break, which began at approximately 11:30 a.m. Rogers
was Mirandized at 1:08 p.m. on the 320 property, and a printout of search
results suggests that the officers did not request the truck registration until
1:29 p.m. It is not clear when the search of the red truck actually took place.
Although the officers claim they asked Rogers if the truck was his before they
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searched it, he disputes that. Thus, there is a genuine dispute as to what the
officers knew when they called the judge, and what they knew when they
searched the red truck.
      Finally, the district court’s own conclusion to its analysis suggests it was
making a judgment call as to the evidence: “Therefore, even though the 320A
building was over two hundred yards away, not visible from the residence
explicitly covered by the search warrant, and equipped with a separate meter,
the Court finds that the officers acted in an objectively reasonable manner in
authorizing the search of the red truck.” 30 All of those factors suggest the 320A
property was truly separate property from the 320 property, and the only
reasons the district court gave for ruling in favor of the defendants is their own
testimony on issues that are genuinely disputed.
      In short, we conclude the district court failed to properly apply the
summary judgment standard. The record evidence shows a number of genuine
disputes as to material facts concerning the relationship between the 320 and
320A properties, as well as the officers’ knowledge and conduct on the day of
the search. It is impossible to find for the officers without making a credibility
call in their favor. On summary judgment, however, we are bound to draw all
inferences in favor of the nonmovant, Rogers.
      Because we cannot find, on summary judgment, that the officers acted
objectively reasonably in conducting the warrantless search of the red truck,
we reverse the district court’s grant of qualified immunity in favor of Warren
and Howell relating to the warrantless search of the 320A property, including
the red truck. 31


      30First MSJ Opinion, 2015 WL 3450266, at *6.
      31The district court found that Howell was even more strongly entitled to summary
judgment than Warren because Howell did not participate in the call to the judge. Id. We
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       B.     The District Court Did Not Err By Dismissing Rogers’s
              Substantive Due Process Claims.

       In addition to the more typical Fourth Amendment claims discussed
above, Rogers also asserted a substantive due process claim under the Fourth
and Fourteenth Amendments, relying on Albright v. Oliver, 510 U.S. 266
(1994), and Napue v. Illinois, 360 U.S. 264 (1959). In short, this claim is based
on   his    allegations     that   the    officers    used    “deceptive     and     reckless
misrepresentations” (and, in his view, fabricated or hid evidence) to obtain a
wrongful conviction. The district court initially held that Rogers could not
pursue it because he had never been convicted, 32 but on reconsideration the
court rejected the claim on the merits. 33
       Thus, although Rogers argues the district court erred by refusing to
address the merits of his substantive due process claim due to its erroneous
belief that he had not been convicted, that argument is moot because the
district court did address the merits in its second opinion. 34
       We cannot say the district court erred by dismissing this claim on the
merits. “The Fourteenth Amendment guarantees ‘[s]ubstantive due process[,
which] prevents the government from engaging in conduct that shocks the
conscience or interferes with rights implicit in the concept of ordered liberty.’” 35




reject that reasoning. Although Howell did not participate in the call itself, Warren testified
in his deposition that both he and Howell made the decision to search the 320A property
following Warren’s telephone call with the judge. Thus, although Howell is arguably less
culpable than Warren, he cannot be dismissed as a matter of law.
        32 First MSJ Opinion, 2015 WL 3450266, at *8.
        33 Second MSJ Opinion, 2016 WL 3849563.
        34 Although the argument is moot, we do note that the Fifth Circuit in the criminal

proceeding described the matter as “a direct appeal from a felony conviction.” 481 F. App’x at
157.
        35 Moran v. Clarke, 296 F.3d 638, 643 (8th Cir. 2002) (en banc) (quoting Weiler v.

Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998) (en banc)).
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Rogers may prevail on his due process claim only if he is able to show that the
defendants intentionally or knowingly presented false evidence or fabricated
evidence, 36 and that their actions shock the conscience. A mistake is not
enough to support a substantive due process claim.
       We conclude that the summary judgment evidence, taken in the light
most favorable to Rogers, does not support his claim. The evidence is sufficient
to show that Warren and Howell acted objectively unreasonably in conducting
the warrantless search of the red truck, but it demonstrates at most negligence
or incompetence rather than a conscience-shocking intent to lie about,
misrepresent, or fabricate evidence. Thus, we affirm the district court’s
dismissal of Rogers’s substantive due process claim.
       C.     The District Court Did Not Err By Dismissing Rogers’s
              Malicious Prosecution Claim Under Mississippi Law.

       Finally, Rogers argues the district court erred by dismissing his state
law malicious prosecution claim pursuant to the police function exemption of
the Mississippi Tort Claims Act (“MTCA”). 37 In brief, as the district court
explained, under the MTCA, Miss. Code Ann. § 11—46—7(1), Warren and
Howell cannot be held liable for the actions they committed within the course
and scope of their employment as police officers. 38 The MTCA contains an
exception to this immunity if an officer’s conduct “constituted fraud, malice,




       36  See, e.g., Canales v. Stephens, 765 F.3d 551, 573 (5th Cir. 2014) (“The Supreme
Court has repeatedly held that ‘a conviction obtained through false evidence, known to be
such by representatives of the State’ violates a defendant’s constitutional rights. (quoting
Miller v. Pate, 386 U.S. 1, 7 (1967)); Napue, 360 U.S. at 269 (“The same result obtains when
the State, although not soliciting false evidence, allows it to go uncorrected when it
appears.”).
        37 Rogers asserted other state law claims, see First MSJ Opinion, 2015 WL 3450266,

at *11, but he has waived those claims for failing to argue them on appeal.
        38 First MSJ Opinion, 2015 WL 3450266, at *11-12.

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      Case: 16-60537     Document: 00513937385          Page: 17     Date Filed: 04/03/2017


                                       No. 16-60537


libel, slander, defamation or any criminal offense other than traffic
violations,” 39 which would include malicious prosecution. 40
        The district court concluded that Rogers failed to show any genuine issue
of material fact as to malicious prosecution because he failed to show “that
Warren had any malice in making that report. No reason for such a statement
has been extended by the Plaintiff to indicate Warren’s malicious intent.
Accordingly, that state law claim fails.” 41 Similarly, the court found no
evidence that Howell acted maliciously, especially given that he did not write
the report that ultimately became the basis of Rogers’s federal conviction. On
these facts, we cannot say the district court erred. Accordingly, we affirm the
district court’s grant of summary judgment in favor of the defendants on
Rogers’s state law claims.

IV.     Conclusion
        For the reasons set out above, we REVERSE the grant of summary
judgment in favor of Defendants-Appellees Warren and Howell on Rogers’s
claims relating to the warrantless search of the red truck on the 320A property.
Otherwise, we AFFIRM the district court’s grant of summary judgment on the
other claims against Warren and Howell (including Rogers’s substantive due
process and state law claims) and all claims against all other defendants.




        39Miss. Code Ann. § 11–46–5(2).
        40First MSJ Opinion, 2015 WL 3450266, at *12 (footnote omitted).
       41 Id. See Benjamin v. Hooper Elec. Supply Co., Inc., 568 So. 2d 1182, 1191 (Miss. 1990)

(“‘Malice’ in the law of malicious prosecution is used in an artificial and legal sense and
applied to a prosecution instituted primarily for a purpose other than that of bringing an
offender to justice.”).
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