     Case: 16-20728        Document: 00514177106          Page: 1     Date Filed: 09/29/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                        No. 16-20728                              FILED
                                                                          September 29, 2017

MEGAN WINFREY,                                                               Lyle W. Cayce
                                                                                  Clerk
                Plaintiff – Appellee

v.

KEITH PIKETT, Former Fort Bend County Sheriff’s Deputy,

                Defendant - Appellant


                     Appeal from the United States District Court
                          for the Southern District of Texas


Before JOLLY and ELROD, Circuit Judges, and RODRIGUEZ, District
Judge. *
E. GRADY JOLLY, Circuit Judge:
      Megan Winfrey brought this lawsuit under 42 U.S.C. § 1983 against
Texas law enforcement officers, alleging that they violated her due process
rights during a murder investigation. Relevant to this appeal, Megan alleges
that Deputy Keith Pikett, a deputy sheriff and canine handler, conducted a
dog-scent lineup—a peculiar lineup indeed—that ultimately resulted in her
convictions for capital murder and conspiracy to commit capital murder—
convictions since vacated by the Texas Court of Criminal Appeals. Pikett
moved for summary judgment on the basis of qualified immunity. The district



      *   District Judge of the Western District of Texas, sitting by designation.
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court denied Pikett’s motion, and Pikett timely appealed. We DISMISS for
lack of appellate jurisdiction because of material factual disputes concerning
qualified immunity.
                                        I.
      This case originated when Murray Wayne Burr was found murdered in
his home in San Jacinto County, Texas, in August 2004. The San Jacinto
County Sheriff’s Office and the Texas Rangers investigated the murder,
focusing on three suspects: then-sixteen-year-old Megan Winfrey; her
seventeen-year-old brother, Richard Winfrey, Jr. (“Junior”); and their father,
Richard Winfrey, Sr. (“Senior”).
      Several weeks after the murder, Texas Ranger Grover Huff requested
that Pikett, a deputy from a nearby law enforcement agency, assist the
investigation by running scent lineups using two of his pet bloodhounds and
scents from four suspects—Megan and Junior as well as Megan’s boyfriend,
Chris Hammond, and Hammond’s friend, Adam Szarf. Pikett agreed and
conducted the scent lineups, which were videotaped.
      Before the scent lineups, Pikett asked the lead investigators to gather
scents from the suspects and the victim. Huff asked each suspect to rub a piece
of gauze on his or her skin. Each suspect placed the gauze in a plastic bag.
Additionally, Huff rubbed a piece of gauze on Burr’s clothing and put that in a
separate plastic bag.
      Pikett also had filler scents that he took from prisoners at the Fort Bend
County Jail. He kept these scents in a duffle bag in the back of his SUV, which
is also where he let his dogs ride daily. He reused filler scents multiple times—
the ones used in the 2004 lineups were anywhere from one to two years old—
instead of gathering new ones for each investigation. These scents were much
older than the fresh scents from the suspects. Tracker dogs are more likely to
follow fresher scents than older scents.
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                                  No. 16-20728
      Later, Pikett met the investigators in a field. He brought his dogs,
unused paint cans, and filler scents. Huff put a different suspect’s scent or a
filler scent in each paint can. Then, he placed the cans in the field. Pikett then
gave one dog the victim’s scent and waited to see if the dog “alerted” to any
can. After doing the lineup with the first dog, Pikett did it with another dog to
confirm the result. The cans stayed in the same position for each dog. The
dogs alerted on Megan’s scent and Junior’s scent as a match to the scent on
Burr’s clothes.
      Pikett says that each bloodhound alerts in a different way and that he
has been unable to train the dogs to alert in a specific manner. He learns each
dog’s individual alert as he works with it. If the dog alerts on a can, Pikett
concludes that the can’s scent matches the scent given to the dog.             No
independent source ever tested or certified Pikett and his dogs.
      More than two years after Pikett performed the scent lineups, Megan,
Junior, and Senior were all arrested for Burr’s murder. Megan was indicted
for capital murder during the course of robbery and conspiracy to commit
capital murder.
      Megan’s case went to trial, where the scent lineups were a crucial part
of the evidence used against her. The lineups were the only evidence that
purported to directly connect Megan to the crime scene. Pikett testified that
Megan likely had contact with the clothing Burr wore when he was murdered
because the dogs alerted at Megan’s scent sample.           Additionally, Pikett
characterized Megan’s contact with Burr’s clothing as “significant,” and he
speculated that it was highly unlikely for that contact to be the result of
anything other than direct contact close in time to the murder. Based in no
small part on the scent-lineup evidence, the jury convicted Megan on both
counts of the indictment.


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      The Texas Ninth Court of Appeals in Beaumont affirmed Megan’s
convictions. Winfrey v. State, 338 S.W.3d 687, 689 (Tex. App. 2011). But in
February 2013, the Texas Court of Criminal Appeals reversed and rendered
acquittals on both counts, holding that the scent lineups and other
corroborating evidence were legally insufficient to support a conviction of
capital murder beyond a reasonable doubt or to sustain the agreement element
of conspiracy. Winfrey v. State, 393 S.W.3d 763, 765, 772–74 (Tex. Crim. App.
2013).
      Megan subsequently filed this § 1983 suit against Pikett and various
other police investigators. She argues that Pikett violated her due process
rights by knowingly using fabricated junk science, manipulating and falsifying
the results of his dog-scent lineups, and employing an unduly suggestive lineup
procedure that resulted in a faulty identification of Megan, which was used to
secure her arrest warrant and wrongful conviction.
      In November 2014, Pikett moved for summary judgment based on
qualified immunity. In response, Megan submitted the videotape of the dog-
scent lineups and a report by Steven Nicely, a police canine expert who
watched the videotape of the lineups and reviewed Pikett’s deposition. As
stated by the district court, Nicely found that the lineups were flawed because:
      (a) newer scents stand out as fresher amongst older scents;
      (b) scents from people who live in the same place smell similar[];
      (c) dogs can become accustomed to scents if they are exposed to
      them regularly; (d) Pikett’s claim that his dogs are accurate ninety-
      nine percent of the time is unreliable; (e) Pikett may have
      influenced his dogs because he kept them on a short leash and
      could see in the cans; and (f) the dogs may have responded to
      deliberate cues from Pikett.

Winfrey v. Pikett, No. CV H-10-1896, 2016 WL 5817065, at *10 (S.D. Tex. Oct.
4, 2016).    These flaws, Nicely concluded, showed that Deputy Pikett
consciously influenced his dogs’ behavior at or near the target cans. Nicely also
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said that Pikett demonstrated that “he had no desire to protect someone from
being falsely accused based on the use of Scent ID dogs” by not maintaining
and recording results to establish the accuracy of his dogs. Further, Nicely
said that using multiple dogs to confirm the results did not matter because
Pikett could see in the cans each time and the cans were not rearranged.
      In October 2016, the district court denied Pikett’s motion for summary
judgment because Megan introduced enough evidence to create a question
about whether Pikett recklessly or intentionally designed a flawed test.
      Pikett timely appealed. He contends that the district court erred in
denying him qualified immunity because the scent lineups did not violate
Megan’s clearly established constitutional rights for two reasons. First, he
says the lineups were “accurate and not false testimony as alleged,” given that
they merely proved that Megan was in Burr’s home approximately two weeks
before the murder—a fact Megan admitted. Second, he argues that two other
recent Fifth Circuit cases addressing his dog-scent lineups indicate that he
should have been granted immunity. See Curtis v. Anthony, 710 F.3d 587 (5th
Cir. 2013); Winfrey v. San Jacinto Cty., 481 F. App’x 969 (5th Cir. 2012)
(Winfrey I).
                                        II.
      The district court’s denial of summary judgment is immediately
appealable “to the extent it turns on an issue of law.” Good v. Curtis, 601 F.3d
393, 397 (5th Cir. 2010) (quoting Behrens v. Pelletier, 516 U.S. 299, 311 (1996)).
But this appeal is an interlocutory appeal, and we have no appellate
jurisdiction to consider “the correctness of the plaintiff’s version of the facts.”
Mitchell v. Forsyth, 472 U.S. 511, 528 (1985); Club Retro, L.L.C. v. Hilton, 568
F.3d 181, 194 (5th Cir. 2009). It follows that this Court cannot review the
district court’s factual determination “that a genuine factual dispute exists,”
but it can review the district court’s legal “determination that a particular
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dispute is material.”     Good, 601 F.3d at 397–98.        “An officer challenges
materiality when he contends that ‘taking all the plaintiff’s factual allegations
as true no violation of a clearly established right was shown.’” Reyes v. City of
Richmond, 287 F.3d 346, 351 (5th Cir. 2002) (quoting Cantu v. Rocha, 77 F.3d
795, 803 (5th Cir. 1996)).      The appealing defendant must therefore “be
prepared to concede the best view of the facts to the plaintiff and discuss only
the legal issues raised by the appeal.” Good, 601 F.3d at 398 (quoting Freeman
v. Gore, 483 F.3d 404, 410 (5th Cir. 2007)). “Within this limited appellate
jurisdiction, ‘[t]his court reviews a district court’s denial of a motion for
summary judgment on the basis of qualified immunity in a § 1983 suit de
novo.’” Id. (alteration in original) (quoting Collier v. Montgomery, 569 F.3d
214, 217 (5th Cir. 2009)).
      “Summary judgment is required if the movant establishes that there are
no genuine issues of material fact and the movant is entitled to judgment as a
matter of law.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citing
Fed. R. Civ. P. 56(c)).      Once an official asserts the defense of qualified
immunity, the burden of proof 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.”        Id.   But all
inferences are drawn in the plaintiff’s favor. Id.
                                       III.
      We begin and end by addressing whether we have appellate jurisdiction
over Pikett’s appeal.
      Megan contends that we lack jurisdiction to hear Pikett’s appeal because
his argument hinges on factual disputes and does not address the legal issue
of whether, based on the district court’s findings and construing the facts in
the light most favorable to Megan, the lower court erred as a matter of law.
Pikett never touches this argument. Instead, he focuses on (1) Megan only
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                                 No. 16-20728
being able to establish the “known fact” that Megan was in Burr’s house within
a few weeks of the murder, which contradicts prior testimony that he gave and
(2) this Court’s holding in Curtis v. Anthony, which he interprets to mean that
Pikett should have qualified immunity.
      In any event, we hold that this Court lacks jurisdiction over Pikett’s
interlocutory appeal. Pikett, “despite giving lip service to the correct legal
standard, . . . does not take the facts in a light most favorable to [Megan].”
Reyes, 287 F.3d at 351. The parties dispute whether: (1) Megan admitted that
she was in Burr’s home roughly two weeks before Burr’s murder; and (2) the
scent lineups were properly conducted and thus informed investigators,
prosecutors, and the jury that Megan was in direct contact with Burr’s clothes
shortly before his murder or merely that Megan had been in Burr’s home at
some point in time. Megan contends that she never admitted that she had
been in Burr’s home two weeks before the murder, and she says the scent
lineups “falsely informed the investigators, prosecutors, and jury that [she]
had been in direct contact with Burr’s clothing, shortly before his murder.”
Pikett, however, contends that Megan admitted that she was in Burr’s home
roughly two weeks before his murder, and he says the scent lineups merely
prove that Megan had been in Burr’s home at some point in time.
      In short, Pikett’s argument hinges on these factual disputes being
resolved in his favor.    So his appeal boils down to a challenge of the
genuineness, not the materiality, of factual disputes because he does not
“contend[] that ‘taking all [Megan]’s factual allegations as true[,] no violation
of a clearly established right was shown.’” Id. (quoting Cantu, 77 F.3d at 803).
We have no jurisdiction over such a challenge.




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                                  No. 16-20728
                                       IV.
      At this juncture, we lack appellate jurisdiction to decide whether Pikett’s
version of the facts is correct. Accordingly, this interlocutory appeal is
                                                                   DISMISSED.




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