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

                                                                            FILED
                                                                          March 27, 2008

                                     No. 07-40809                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


DAVID ROGERS; KATHRYN ROGERS

                                                  Plaintiffs-Appellants
v.

MATT HOOPER; MIKE TAYLOR; JACE ANGLIN; CHRIS HILL

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                                   5:06-CV-165



Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiffs David Rogers and Kathryn Rogers appeal the district court’s
grant of summary judgment in favor of Defendants Mike Taylor, Jace Anglin,
and Chris Hill.       The Plaintiffs also appeal the grant of partial summary
judgment to Defendant Matt Hooper. Finding no error, we affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                      No. 07-40809

                                         FACTS
       This case arises from the Defendants’ mistaken execution of a search
warrant on Plaintiffs’ home. The Defendants are all members of either the
Sulphur Springs Special Response Team or the Red River Valley Drug Task
Force. All were involved with executing the warrant. Defendants Hooper and
Taylor were part of an undercover investigation in which confidential informants
purchased drugs at 131 Russell Drive in Sulphur Springs, Texas. They arranged
two drug purchases at the residence. The second occurred on the day they
obtained the search warrant for the residence. After this purchase, the
confidential informant told Taylor and Hooper that he saw a large amount of
drugs inside the house.1 As a result of the information acquired during the
investigation, Defendants Hooper and Taylor obtained a search warrant for a
“single family white frame home facing east. The residence is municipally
known as 131 Russell St. . . .” Because Hooper and Taylor were familiar with
the area, they were selected to guide the team serving the warrant.
       On the night the warrant was executed, Hooper and Taylor drove by the
house in preparation for later serving the warrant. During this surveillance,
Hooper and Taylor noticed a small maroon vehicle parked in front of 131 Russell
Drive. This car appeared to be the suspect’s car that they had previously
observed parked at that address. Hooper and Taylor returned and briefed the
members of the team executing the warrant about the location of the home, and
developed a plan for executing the warrant.
       Because the suspect at 131 Russell Drive was known to carry a weapon
and to be dangerous, the raid was conducted in a no-knock fashion at night. The
plan called for Hooper and Taylor to lead the team; Hooper would drive and


       1
         The record is unclear what time of day these drug transactions took place. The
transaction on the date the warrant was obtained, however, would have occurred prior to 9:00
p.m., the time that members of the search team were assembled.

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                                     No. 07-40809

Taylor would ride with him. Their vehicle would park in front of 131 Russell
Drive. That act would identify to the remaining members of the team the
location of the proper house to search. Hooper chose to approach the residence
from a different direction than they had previously used in order to use a tree
line for cover as they approached. As Hooper and Taylor went down Russell
Drive, they passed the tree line. Hooper saw what he thought was the vehicle
they had seen parked in front of 131 Russell Drive during their earlier
surveillance. Hooper said that he relied on the location of this vehicle to cue
him as to the proper house.
      However, the car was not parked in front of 131 Russell Drive, but instead
in front of the Plaintiffs’ residence located next door at 127 Russell Drive. Taylor
testified that after exiting the vehicle, he immediately realized that it was the
wrong address because the Plaintiffs’ house did not have a bay window as did
the target house. Hooper stated that he also immediately realized they were at
the wrong house upon leaving the vehicle. Taylor called out to stop the entry
team, but it was too late – others had already entered the Plaintiffs’ home.
      During the raid, Defendant Anglin broke through the Plaintiffs’ front door
with a door ram. The Plaintiffs, who were in bed asleep at the time, were
awakened by the sound of police entering their bedroom. They were handcuffed.
After realizing they were at the wrong residence, the officers removed the
handcuffs from the Plaintiffs, apologized, and left.2
      The Plaintiffs subsequently filed this Section 1983 suit, alleging that the
Defendants’ actions violated their right to be free from unreasonable searches
and seizures under the Fourth and Fourteenth Amendments to the United




      2
        Members of the Task Force returned later and repaired the damage to the Plaintiffs’
home that occurred as a result of the forced entry.

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                                       No. 07-40809

States Constitution.3 See 42 U.S.C. § 1983. The Defendants filed motions for
summary judgment which asserted a qualified immunity. The district court
granted summary judgment in favor of each Defendant, except Matt Hooper.
The court found no disputed issue regarding Hooper except as to whether he had
remained in the plaintiffs’ house for an unreasonable length of time after
learning of the error. A trial was held as to that issue, resulting in a jury verdict
for Hooper. There is no appellate issue arising from the trial.
                                      DISCUSSION
       This Court reviews a district court’s grant of summary judgment de novo,
engaging in the same evaluation of the evidence as did the district court. XL
Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 149 (5th Cir.
2008). Summary judgment is appropriate if “there is no genuine issue as to any
material fact and [] the moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). Our sole question is whether the district court properly
held that the Defendants were entitled to immunity.
       Public officials have a qualified immunity “not only from liability, but also
from defending against a lawsuit.” Jackson v. City of Beaumont Police Dep’t, 958
F.2d 616, 620 (5th Cir. 1992). The purpose of the immunity is to prevent
“distraction of officials from their government duties, inhibition of discretionary
action, and deterrence of able people from public service.” Harlow v. Fitzgerald,
457 U.S. 800, 816 (1982). The question is whether a reasonable officer could
have believed, even if mistakenly, that the conduct at issue was lawful. Goodson
v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000) (law enforcement
officers have immunity when they “reasonably but mistakenly” commit a



       3
         Plaintiffs sued a number of individuals involved in the service of the search warrant
who are not parties to this appeal. The Plaintiffs settled with these individuals after
mediation. All references to “Defendants” in this opinion refer only to those Defendants who
are parties to this appeal.

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                                  No. 07-40809

constitutional violation).    Officers who make reasonable mistakes have
immunity; “the plainly incompetent or those who knowingly violate the law” do
not. Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995) (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986). However, if a plaintiff (1) alleges a violation of a
constitutional right; and (2) demonstrates that the official’s conduct was
objectively unreasonable in light of clearly established law at the time of the
conduct, the qualified immunity defense fails. Glenn v. City of Tyler, 242 F.3d
307, 312 (5th Cir. 2001). The question of whether an official’s conduct is
objectively unreasonable is a question of law to be determined by the court.
Magieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994).
      The Plaintiffs unquestionably demonstrated the violation of a
constitutional right. The Defendants did not have a warrant or any other
constitutionally sufficient justification for entering the Plaintiffs’ home.
      The district court accepted that a constitutional right was violated but
rejected that the Defendants’ actions were objectively unreasonable. On appeal
Plaintiffs argue that unreasonableness is shown by these facts: (1) the Plaintiffs’
home was brown or beige while the proper house was white with green trim; (2)
Plaintiffs’ house had a large tree in the front yard while the proper house did
not; (3) Plaintiffs’ house had a covered front porch while the proper house did
not; and (4) both houses had marked house numbers. Plaintiffs also allege that
the fact that Taylor and Hooper had been at the correct house at least twice
before and that the address listed in the search warrant was accurate are facts
that weigh against the grant of qualified immunity to the Defendants.
      In determining whether qualified immunity was appropriately found here,
we examine a recent precedent involving similar facts.        Simmons v. City of
Paris, Texas, 378 F.3d 476 (5th Cir. 2004). Officers were attempting to serve a
search warrant at the home of a suspected drug dealer whose address was
correctly shown on the warrant. Id. at 478. After obtaining the warrant, the

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officers met with members of the team that would go to the home. The plan was
for the officer in the lead vehicle to park at the property immediately south of
the home, and that act would alert the entry team to serve the warrant on the
house immediately to the north. Id. Instead, the lead vehicles stopped directly
in front of the residence that was to be searched. This caused the entry team to
enter the Plaintiffs’ house that was the next one north. The Plaintiff and her son
were on the front porch of their home and retreated inside when they saw the
entry team sprinting toward them. Id. After the officers detained the Plaintiffs,
they realized they had entered the wrong house. Id. Summary judgment was
proper for all officers who entered the home due to this mistake and then had
departed immediately upon discovering their error. Id. at 480-81.
      The Simmons court discussed with approval Pray v. City of Sandusky, 49
F.3d 1154 (6th Cir. 1995). In Pray, officers obtained a warrant for the upper
level of a duplex, but mistakenly sought to execute the warrant on the lower
level of the duplex. The Plaintiffs, an elderly couple, lived in the lower half of
the duplex, and brought suit for the mistaken entry. Id. at 1156. Almost
identically to our case, the Pray district court granted summary judgment to the
officers on the basis of the initial mistaken entry, but denied summary judgment
on the question of whether the officers remained in the home too long after the
mistaken entry was discovered. The Sixth Circuit affirmed:
      We agree that a reasonable officer in the defendants’ position could
      have believed that he was initially entering the correct residence
      described on the warrant. Police officers are regularly forced to
      make critical decisions under extreme pressure--decisions which
      seem much easier after facts have unfolded and time for reflection
      has been afforded. Given the circumstances at the time of entry, it
      appears that the officers had to make a quick judgment in what was
      initially a tense situation. At the time the officers entered the Pray
      home, it was dark, vision was poor, and any delay could have been
      potentially detrimental to an arrest of [the suspect] and seizure of
      evidence.


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                                  No. 07-40809


Id. at 1159 (internal citations and quotations omitted).

      Plaintiffs find an Eleventh Circuit precedent to be more applicable.
Hartsfield v. Lemacks, 50 F.3d 950 (11th Cir. 1995). There, officers executed a
search warrant on the wrong house. The officer who obtained the warrant and
led the search warrant team had been to the home on the day before the search,
and had the warrant in his possession. However, he did not check the warrant
again to see that he was leading the team to the proper address. Id. at 955.
Determinative to the court was that the officer leading the team did not take
“any precautionary measures” to ensure that he was leading the team to the
right house. Id. Additional indications of the unreasonableness of the error was
that execution of the warrant was during daylight hours; the numbers on the
homes were clearly marked; the homes were on different parts of the street; and
the homes were separated by at least one house. Id. The court held that the
officer did nothing to avoid the mistaken execution, that the mistaken entry
would have been avoided by simply checking the address on the warrant, and
there was no reasonable justification for failing to do so. Id.       The court
concluded that “searching the wrong residence when [the officer] had done
nothing to make sure he was searching the house described in the warrant,” did
not constitute “reasonable effort” on the part of the officers.
      In the present case, Taylor and Hooper made an initial surveillance of the
house shortly before the warrant was executed, though they increased the
chance for mistake by approaching the house in the opposite direction than they
would use later.   The relevant houses were next door to each other. Despite
differences in appearance, those differences were less noticeable at night. It is
also true that because the search was to occur at night, the chance for a mistake
was greater and the need for precautions proportionately were increased.



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                                  No. 07-40809

Finally, a car that earlier had been thought to be in front of the house to be
searched was instead in front of the Plaintiffs’ home when the search began.
      Before these facts can be said to block qualified immunity for these
officers, they must not be “consistent with a reasonable effort to ascertain and
identify the place intended to be searched.” Id. at 955 (quoting Maryland v.
Garrison, 480 U.S. 72, 87 (1987)). Evaluating the Plaintiffs’ claims in light of
Simmons and Pray, the district court found qualified immunity for Taylor and
Hooper based on the mistaken entry into the Plaintiffs’ home. The key to us is
that the officers made reasonable efforts, though obviously insufficient ones, to
identify the correct house. We agree they were entitled to qualified immunity.
      We are sympathetic to the Plaintiffs, as what happened here must have
been an intensely frightening event for those who believed they were in the
safety of their own home. The intrusion caused by an unannounced, no-knock
entry into a home in the middle of the night is substantial, no matter how
quickly the mistake is noted and leave is taken.
      However, the doctrine of qualified immunity balances the “vindication of
citizens’ constitutional rights and . . . public officials’ effective performance of
their duties.” Davis v. Scherer, 468 U.S. 183, 195 (1984). The limited question
that we answer in this appeal is whether Defendants Taylor and Hooper were
objectively unreasonable in the manner that they led the team. No one has
alleged that the Defendants intentionally entered the wrong home. Neither do
we find, despite the significance of the error to the Plaintiffs and the ease that
hindsight provides in determining how this mistake could have been avoided,
that the Defendants were incompetent. Gibson, 44 F.3d at 277.
      The district court correctly found that Taylor and Hooper did not act in an
objectively unreasonable manner. The Plaintiffs make a derivative argument
that supposed error in granting Hooper qualified immunity for leading the
search team to the wrong house infected the trial on whether Hooper remained

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                                No. 07-40809

in the Plaintiffs’ home too long after learning of the team’s mistake. The jury
returned a verdict in favor of Hooper, and no separate error is alleged to have
occurred at trial. Because the summary judgment was properly entered, there
was no error from that judgment to contaminate the trial.
      The two remaining Defendants, Hill and Anglin, did not direct the search
team. Anglin rammed open the door to the Plaintiffs’ home, and Hill handcuffed
Plaintiff David Rogers. This Court has held that “when law enforcement officers
are executing a search warrant and discover that they have entered the wrong
residence, they should immediately terminate their search.” Simmons, 378 F.3d
at 479-80. The Plaintiffs presented no evidence supporting that either Anglin
or Hill failed in their duty of immediate termination of a search upon learning
of the mistake. The record instead shows that Anglin had already left and Hill
was exiting the residence when it was learned that the warrant was served on
the wrong residence.
      Accordingly, we AFFIRM the summary judgments entered on the basis of
qualified immunity.




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