                   Case: 11-14927            Date Filed: 08/20/2012   Page: 1 of 16




                                                                           [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                     ________________________

                                                No. 11-14927
                                          ________________________

                                 D.C. Docket No. 9:10-cv-80077-WJZ


JAMES M. DANIELS,

llllllllllllllllllllllllllllllllllllllll                               Plaintiff - Appellee,

                                                 versus

JOHN BANGO,

lllllllllllllllllllllllllllllllllllllll                                lDefendant - Appellant.

                                      ________________________

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

                                              (August 20, 2012)

Before WILSON, PRYOR and MARTIN, Circuit Judges.

WILSON, Circuit Judge:

         James M. Daniels spent eight months in jail for a crime he did not commit.
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He was released from pretrial custody upon his acquittal at a bench trial on charges

that he sold crack cocaine to Palm Beach County Deputy Sheriff John Bango, who

was working undercover in Boynton Beach, Florida. As it turned out, the dealer

was actually someone else. Bango misidentified Daniels as the dealer even though

Bango spent about twenty minutes with the dealer during the transaction. After his

acquittal, Daniels sued Bango, contending that Bango violated his civil rights

under 42 U.S.C. § 1983 by making false statements in the affidavit that supported

probable cause for Daniels’s arrest warrant and omitting material facts. He also

included a Florida state-law claim for malicious prosecution. This appeal is from

the denial of Bango’s motion for summary judgment asserting qualified immunity.

We affirm in part and dismiss in part.

                                            I. Facts

       We take the facts from the magistrate judge’s report and recommendation,

adopted by the district judge, and fully supported by the record 1:

              On July 26, 2007, Defendant John Bango . . . and his partner,
       Agent Thomas Kabis, were working undercover in Boynton Beach,
       purchsing narcotics from street-level drug dealers. While making
       these purchases, Bango and Kabis drove an unmarked vehicle that

       1
         The district court correctly viewed the facts in the light most favorable to Daniels. See
Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). The district court also noted that “[w]ith
few exceptions noted herein, the parties do not dispute the relevant facts. Rather, the parties’
disagreement focuses on the legal significance of these facts.” D.E. 41 at 1 n.1.

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       was equipped with a hidden surveillance camera. Shortly after 3:00
       p.m., the officers purchased forty dollars’ worth of crack cocaine from
       a young black male. The suspect referred to himself as “Toe” or
       “Tobe,” and he later told the officers that his first name was James. 2
       During part of the exchange, the suspect rode in the front seat of the
       officers’ car. While in the car, the suspect informed the officers that
       he “just got out of jail last night,” that he “went to court today,” and
       that he was “facing fifteen years” for “burglary with a firearm and
       robbery with a firearm.” He also mentioned that he had been arrested
       in a nearby area. During the officers’ encounter with the suspect,
       which lasted about twenty minutes and took place on a clear day, they
       observed him at close range, and he did not try to conceal his face. 3

               Later that day, Bango and Kabis returned to their office and
       sought to determine the identity of the suspect who had sold them
       crack cocaine. Bango watched the first part of the surveillance tape
       and printed some still photographs of the suspect. Bango then
       searched the Sheriff’s Office’s online “booking blotter” for a black
       male named James who had been arrested by the Boynton Beach
       Police Department for burglary within the last three months.
       Although the booking blotter allows searches for arrests that occurred
       up to one year in the past, Bango limited the time frame of his search
       to three months because the suspect had “said he had just gotten out of
       jail,” and Bango “figured three months would have caught anything.”
       Bango later acknowledged, however, that a suspect charged with
       burglary “absolutely” could have been incarcerated for more than
       ninety days and therefore could have been excluded from Bango’s
       search, even if the suspect had recently been released. 4 Bango’s
       2
         The surveillance recording stopped before the end of the transaction because the camera
ran out of videotape. The suspect disclosed that his name was James after the recording ended.
       3
         Normally, when the undercover officers left the presence of a drug suspect, they would
describe the suspect’s physical traits out loud so that those descriptions would be recorded by the
surveillance tape. Though the officers stated that they followed this practice for the suspect at
issue here, the surveillance tape had already run out. Thus, the officers’ descriptions of the
suspect were lost.
       4
           The booking blotter permits searches based on the date of a suspect’s booking but does
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       search revealed Plaintiff James Daniels, who had been charged on
       June 26, 2007, with burglary and petit theft; sentenced to time served
       on July 23, 2007; and released from the Palm Beach County Jail on
       July 24, 2007, with his case over. After examining Daniels’s
       booking-blotter photo, Bango identified Daniels as the individual who
       had sold narcotics to Bango and Kabis earlier that day.

              Kabis separately searched the booking blotter, “filter[ing] the
       search by the agency that made the arrests, the charge that was used to
       make the arrest and the name James.” Kabis does not recall what time
       frame he used for the search. Kabis’s search also identified Daniels,
       and Kabis agreed that Daniels was the suspect who had sold the
       officers drugs.

               Bango then prepared a probable-cause affidavit to support
       Daniels’s arrest for selling cocaine. The affidavit mainly described
       the details of the officers’ drug purchase from the suspect. Near the
       end of the affidavit, Bango stated that the suspect had told the officers
       that “his real first name was James and he had just gotten out [of] the
       Palm Beach County Jail for burglary.” Bango further stated that the
       officers had used the booking blotter to “locate[] the subject and
       confirm[] that his name was James Daniels.” The affidavit did not
       note the discrepancies between the suspect’s statements and Daniels’s
       record—namely, that (1) the suspect had stated that he “just got out of
       jail last night [July 25, 2007],” while Daniels had been released on
       July 24, 2007; (2) the suspect had indicated that he “went to court
       today [July 26, 2007],” while Daniels’s case had concluded two days
       earlier; and (3) the suspect had said that he was “facing fifteen years”
       for “burglary with a firearm and robbery with a firearm,” while
       Daniels’s case had been resolved two days before with time served.

              Bango provided the affidavit, along with the video, photographs
       of the suspect and Daniels, and other investigation materials, to an
       assistant state attorney for review. See D.E. 20 at 4, ¶ 9; D.E. 28 at 3,
       ¶ 9. Bango subsequently presented an arrest-warrant application to a

not allow searches based on the date of the suspect’s release from jail. However, a completed
search query lists the date and time of release for each person identified in the search results.
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       Palm Beach County Circuit Judge. 5 On August 10, 2007, the judge
       issued a warrant for Daniels’s arrest on the charge of selling cocaine
       within 1,000 feet of a place of worship or a convenience business.
       The arrest warrant set a bond of $50,000.

              Daniels was arrested on October 13, 2007. 6 He remained in
       custody for eight months while awaiting trial. While incarcerated,
       Daniels, who had been shown the surveillance videotape, asked other
       inmates whether they knew anyone from Boynton Beach who went by
       the name “Toe” or “Tobe.” One inmate said that he did know
       someone by that name but did not know the person’s real name.
       However, the inmate did know that “Toe” or “Tobe” had a sister
       whose last name was Reed. Using this information and the suspect’s
       disclosure that his first name was James, Daniels’s attorneys
       discovered that a black male named James Reed had been released
       from the Palm Beach County Jail on the night of July 25, 2007 (the
       night before the drug transaction) and, on the morning of July 26,
       2007, had returned to Palm Beach County Circuit Court for a non-
       custody arraignment on charges of burglary and petit theft. Because
       Reed had been arrested on these charges on March 14, 2007—more
       than three months before Bango searched the booking blotter on July
       26, 2007—Bango’s search would not have identified Reed. 7

       5
          Bango asserts in his summary-judgment motion that the assistant state attorney, rather
than Bango, submitted the warrant application. But as Daniels points out in his response, see
D.E. 28 at 4–5, ¶ 10, this assertion is refuted by Bango’s deposition testimony, which indicates
that he (and possibly Kabis) presented the warrant application to the judge. See D.E. 20-1 at 99.
(“We had done several buys and . . . we were putting packets together of arrestees for warrants.
We would bring them over ten at a time to the State Attorney’s Office. Allow them to do their
paperwork. We would then go see the judge. The judge would sign it. We would take it and it
would get held back.” (emphasis added)).
       6
         Although the warrant for Daniels’s arrest was issued two months earlier, the processing
and execution of the warrant were purposefully delayed to protect Bango’s and Kabis’s identities
as undercover officers.
       7
          It appears undisputed that if Bango had searched the booking blotter using a time period
that included the date of Reed’s arrest—for example, had Bango looked back six months rather
than three—his search would have revealed Reed.
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             On June 15, 2008, Daniels was acquitted of the cocaine-sale
      charge following a bench trial. Apparently contrasting Daniels’s
      appearance to photographs of the suspect, the presiding judge stated,
      “It does not look like that guy to me. The ears look different.” The
      judge added, “I’m sorry. It doesn’t look like him to me . . . the ears
      and the nose.”

D.E. 41 at 1–5 (citations omitted).

                                   II. Jurisdiction

      Generally, the denial of a motion for summary judgment is not a final order

subject to immediate appeal. Gray ex rel. Alexander v. Bostic, 458 F.3d 1295,

1303 (11th Cir. 2006). A denial of summary judgment on the basis that the

defendant is not entitled to qualified immunity is immediately appealable when it

“concerns solely the pure legal decision of (1) whether the implicated federal

constitutional right was clearly established and (2) whether the alleged acts

violated that law.” Koch v. Rugg, 221 F.3d 1283, 1294 (11th Cir. 2000) (emphasis

omitted) (citing Johnson v. Jones, 515 U.S. 304, 313, 115 S. Ct. 2151, 2156

(1995)). The appeal must present “a legal question concerning a clearly

established federal right that can be decided apart from considering sufficiency of

the evidence.” Id. Here, Bango argues that his actions, which are undisputed, did

not violate clearly established constitutional rights; therefore, we find the appeal of

the district court’s qualified immunity determination proper.

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      Bango contends that we have pendent jurisdiction to review the district

court’s denial of his motion for summary judgment on Daniels’s claim for

malicious prosecution. However, “pendent appellate jurisdiction is limited to

questions that are ‘inextricably interwoven’ with an issue properly before the

appellate court.” Harris v. Bd. of Educ., 105 F.3d 591, 594 (11th Cir. 1997) (per

curiam) (citing Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 51, 115 S. Ct.

1203, 1212 (1995)). The pendent issue must be essential to the resolution of the

issue over which appellate jurisdiction exists. Swint, 514 U.S. at 51, 115 S. Ct. at

1212. Under Florida law, malicious prosecution requires a plaintiff to prove six

elements of which, at most, only two pertain to our qualified immunity analysis.

See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994) (listing

the six factors). Because “we may resolve the qualified immunity issue without

reaching the merits” of the malicious prosecution claim, we do not have

jurisdiction to entertain the interlocutory appeal. Harris, 105 F.3d at 595.

Therefore, we dismiss for lack of jurisdiction Bango’s interlocutory appeal of the

malicious prosecution claim.

                               III. Standard of Review

      We review a district court’s denial of qualified immunity de novo, viewing

all evidence and drawing all reasonable inferences in favor of the non-moving
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party. Bennett v. Hendrix, 423 F.3d 1247, 1249 (11th Cir. 2005). Summary

judgment is appropriate where “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);

see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).

                               IV. Qualified Immunity

      Qualified immunity is “an entitlement not to stand trial . . . when a

government actor’s discretionary conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Koch, 221 F.3d at 1294 (citation and internal quotation marks omitted). After the

officer asserting the affirmative defense of qualified immunity demonstrates that

he acted in his discretionary capacity, the burden shifts to the plaintiff to establish a

constitutional violation. Bennett, 423 F.3d at 1250. Bango acted in his

discretionary capacity as a law enforcement officer; therefore, our analysis focuses

on whether Bango violated clearly established law. See Koch, 221 F.3d at 1294.

We decide whether the facts alleged show a violation of clearly established law by

“(1) defining the official’s conduct, based on the record and viewed most favorably

to the non-moving party, and (2) determining whether a reasonable public official

could have believed that the questioned conduct was lawful under clearly

established law.” Id. at 1295 (footnote omitted). The focus of the second step is
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whether the state of the law at the time gave the officer “fair warning” that his

actions were unconstitutional. Holmes v. Kucynda, 321 F.3d 1069, 1078 (11th Cir.

2003) (citing Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002)).

                             A. Constitutional Violation

      “The Warrant Clause of the Fourth Amendment requires that warrant

applications contain sufficient information to establish probable cause.” Id. at

1083 (citing Franks v. Delaware, 438 U.S. 154, 164, 98 S. Ct. 2674, 2681 (1978)).

In Franks, the Supreme Court noted that the Fourth Amendment assumes that the

factual showing to support probable cause is true. 438 U.S. at 164–65, 98 S. Ct. at

2681. Although every statement in an application for a warrant does not need to be

objectively accurate, the affidavit must “be truthful in the sense that the

information put forth is believed or appropriately accepted by the affiant as true.”

Id. at 165, 98 S. Ct. at 2681 (internal quotation marks omitted); see also Holmes,

321 F.3d at 1083. The reasoning in Franks applies equally “to information omitted

from warrant affidavits.” Madiwale v. Savaiko, 117 F.3d 1321, 1326 (11th Cir.

1997). “[A] warrant violates the Fourth Amendment when it contains omissions

‘made intentionally or with a reckless disregard for the accuracy of the affidavit.’”

Id. at 1326–27 (quoting United States v. Martin, 615 F.2d 318, 329 (5th Cir.

1980)). Therefore, an officer will not receive qualified immunity if a reasonable
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officer should have known that the statements in the affidavit were included with a

reckless disregard for the truth or that facts were recklessly omitted from the

affidavit supporting probable cause. See Kelly v. Curtis, 21 F.3d 1544, 1554 (11th

Cir. 1994).

      A law enforcement officer recklessly disregards the truth when he “should

have recognized the error [in the warrant application], or at least harbored serious

doubts” as to the facts contained therein. United States v. Kirk, 781 F.2d 1498,

1503 (11th Cir. 1986). This is especially true when “the inconsistency [gives] the

agent[] cause to investigate further.” Id. Thus when an officer possesses

information that would cause a reasonable officer to have serious doubts about the

identity of a suspect, the officer is required to either take additional steps to

confirm the suspect’s identity before submitting the warrant application or include

the contradictory information in the warrant application. See Tillman v. Coley, 886

F.2d 317, 321 (11th Cir. 1989); Kirk, 781 F.2d at 1503; see also Kingsland v. City

of Miami, 382 F.3d 1220, 1229 (11th Cir. 2004) (finding that an officer cannot turn

a blind eye to “easily discoverable facts” and “choose to ignore information”).

      Reviewing the facts of this case, we note that “[i]t is difficult to believe that

the surveillance conditions could have been much better.” Kirk, 781 F.2d at 1502.

Despite Bango’s clear observation of the suspect’s appearance and the wealth of
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information the suspect willingly gave Bango, the affidavit in support of the arrest

warrant only stated that “[t]his subject told us that his real first name was James

and he had just gotten out [of] the Palm Beach County Jail for burglary. Checking

the booking blotter, we located the subject and confirmed that this name was James

Daniels by the booking blotter.” The affidavit did not include any of the known

information that would suggest that Daniels was not the suspect. For example,

Bango did not include that, unlike Daniels, the suspect had specifically stated that

he was released from jail the night before. Nor did he mention that, unlike

Daniels, the suspect said he went to court that morning. Furthermore, Bango did

not include that the suspect claimed that he was still facing a punishment of fifteen

years, unlike Daniels who had been sentenced to time served. Additionally, Bango

omitted the fact that he and Kabis had twenty minutes of close contact with the

suspect in broad daylight and with an unobstructed view of the suspect’s face.

      The material inconsistencies between the suspect’s story and the information

in the search results should have led a reasonable officer to harbor serious doubts

about the conclusion that Daniels was the suspect on the video tape. See Tillman,

886 F.2d at 321; see also Madiwale, 117 F.3d at 1327 (“[I]t is possible that when

the facts omitted from the affidavit are clearly critical to a finding of probable

cause the fact of recklessness may be inferred from proof of the omission itself”
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(internal quotation marks omitted)). At the very least, the inconsistencies should

have led Bango to investigate further. See Tillman, 886 F.2d at 321 (“Although the

law does not require that every conceivable step be taken, at whatever cost, to

eliminate the possibility of convicting an innocent person, due process does require

that some steps be taken to eliminate doubts concerning identity that exist prior to

obtaining the warrant and to arrest.” (internal quotation marks omitted)); Kirk, 781

F.2d at 1503; Kingsland, 382 F.3d at 1229. Bango and Kabis only relied on the

booking blotter information from the last ninety days when they determined

Daniels was the suspect. The officers’ independent discovery of Daniels’s booking

blotter information does not convert their insufficient investigation into a

reasonable one. See Kirk, 781 F.2d at 1503 (noting that even though four different

officers incorrectly identified a suspect, those officers should have “recognized the

error, or at least harbored serious doubts”).

      The district court found that despite the inconsistencies, Bango and Kabis

ignored two other investigative techniques: (1) expanding the booking blotter

search to twelve months and (2) calling the local jails for the names of individuals

who were released the night before. The officers chose to ignore these methods

despite knowing that a suspect charged with burglary could be incarcerated for

more than ninety days. Either of these avenues of investigation would have
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included James Reed in the search results. Most importantly, perhaps, is that both

of these investigative techniques were simple, and we have previously held that

officers should look into easily discoverable facts. See Kingsland, 382 F.3d at

1229 (finding that information that could be uncovered by searching a truck for

drugs and interviewing available witnesses constituted “easily discoverable facts”).

      Furthermore, time was not of the essence. The officers knew that they

would be waiting months before arresting the suspect, and no evidence of exigency

appears in the record. Therefore, the circumstances surrounding Bango’s

investigation did not necessitate such a cursory investigation. See Tillman, 886

F.2d at 321 (noting that the officers waited three months before arresting the

suspect). Under the circumstances, Bango could have taken a few more simple

steps to verify his identification. See Kingsland, 382 F.3d at 1229 n.10 (noting that

an officer is not required to eliminate every theoretical possibility, but an officer

may not “turn[] a blind eye to immediately available exculpatory information”).

We cannot quarrel with the district court’s finding that Bango recklessly omitted

material information when he did not take additional steps to verify the suspect’s

identity or include the inconsistencies in his arrest-warrant application to the judge.

                            B. Arguable Probable Cause

      Even though Bango recklessly omitted material facts from the affidavit in
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support of the arrest warrant, he may still be entitled to qualified immunity if there

is arguable probable cause for the arrest. See Madiwale, 117 F.3d at 1327. To

make this determination, we analyze whether “under all of the facts and

circumstances, an officer reasonably could—not necessarily would—have believed

that probable cause was present.” Crosby v. Monroe Cnty., 394 F.3d 1328, 1332

(11th Cir. 2004); see also Grider v. City of Auburn, 618 F.3d 1240, 1257 (11th Cir.

2010) (explaining that a plaintiff must show that “reasonable officers in the same

circumstances and possessing the same knowledge as the Defendants could have

believed that probable cause existed to arrest Plaintiff” (quoting Kingsland, 382

F.3d at 1232)).

      Taking the facts in the light most favorable to Daniels and considering all

the facts that Bango knew at the time he obtained the arrest warrant, Bango did not

have arguable probable cause when he signed the affidavit. To conduct this

analysis we consider the facts in the affidavit (notwithstanding the

misidentification) and those facts that were recklessly omitted. See Kirk, 781 F.2d

at 1505 (“Our inquiry now focuses upon whether the affidavit is sufficient to

establish [arguable] probable cause, notwithstanding the misidentification.”);

Madiwale, 117 F.3d at 1327 (taking into consideration the omitted information

when deciding if there was arguable probable cause to obtain search warrants). So
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our circumstances to consider are that a young African American male named

James, who referred to himself as “Toe” or “Tobe,” sold the officers drugs. During

this twenty minute transaction, he admitted that he had been released from jail the

night before, went to court that morning and was facing fifteen years for burglary

with a firearm and robbery with a firearm. Additionally, the officers found through

searching only three months of records on the booking blotter a young African

American male named James Daniels. Daniels had been released from jail two

days earlier, had not gone to court that morning, and was sentenced to time served

for burglary and petit theft.

       In analyzing whether there was arguable probable cause, we first note that

the misleading information was the only information in the affidavit that tied

Daniels to the drug deal; therefore, the omissions were material to a finding of

arguable probable cause. See Kingsland, 382 F.3d at 1233 (finding it important

that the recklessly false statements were “material to a finding of arguable probable

cause”). Additionally, the district court found noticeable differences between the

suspect’s physical characteristics and Daniels’s characteristics. 8 The district court

specifically noted that “the suspect’s nose is broad with a pronounced ridge, while

       8
         Daniels’s booking blotter photo that the officers used to identify him is not contained in
the record on appeal and was not in the record given to the district court. However, the district
court found that the four driver’s license photographs of Daniels taken between July 2006 and
February 2009 were sufficient because Daniels’s facial appearance in all four photos was similar.
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Daniels’s nose is relatively narrow and smooth” and “the suspect’s ears protrude

noticeably away from his head, while Daniels’s do not.” The state court judge

emphasized the same differences when Daniels was acquitted. The physical

differences between the men, coupled with the significant discrepancies between

the suspect’s story and the information about Daniels contained in the booking

blotter, lead to the conclusion that no reasonable officer could have concluded that

he had arguable probable cause to arrest Daniels in light of all of the circumstances

known to Bango. Therefore, we affirm the district court’s denial of qualified

immunity.

                                  V. Conclusion

      We affirm the finding of the district court that Bango should not be granted

qualified immunity. We further affirm the finding that, considering all the facts

and circumstances known to Bango, no arguable probable cause existed to issue a

warrant for Daniels’s arrest. Lastly, we dismiss for lack of jurisdiction Bango’s

interlocutory appeal from the denial of his motion for summary judgment on

Daniels’s claim for malicious prosecution.

      AFFIRMED IN PART AND DISMISSED IN PART.




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