                                                                  [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________             FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-13751         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        APRIL 20, 2011
                                      ________________________        JOHN LEY
                                                                        CLERK
                                D.C. Docket No. 2:08-cv-00035-WCO

GEOFFREY ASHER,


llllllllllllllllllllllllllllllllllllllll                            Plaintiff - Appellee,

                                              versus

MARK MCCLURE,
Sheriff of Lumpkin County, Georgia, in their individual capacities,
SERGEANT CURT DONALDSON,
in their inidividual capacities,
INVESTIGATOR BEN NIX,
DEPUTY STERLING COLE,
of the Lumpkin County Sheriff's Department in their individual
capacities,


llllllllllllllllllllllllllllllllllllllll                        Defendants - Appellants,

LIEUTENANT RYAN MILLER,
in their individual capacities,


llllllllllllllllllllllllllllllllllllllll                                     Defendant.
                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                          ________________________

                                  (April 20, 2011)

Before TJOFLAT, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

      Defendants McClure, Nix, Cole, and Donaldson (collectively

“Defendants”), law enforcement officers employed by the Lumpkin County

Sheriff’s Office in Georgia, appeal the district court’s denial of their motion for

summary judgment on qualified immunity grounds of Geoffrey Asher’s 42 U.S.C.

§ 1983 claims.

      This action arises out of a confrontation between Asher and Defendant Cole

on Asher’s property in front of his home. Cole claimed that Asher was speeding

and ignoring Cole’s attempts to make a traffic stop, and that he thus followed

Asher to his home. Asher claims that he was not speeding, and that Defendant

Cole did not have his emergency lights or siren activated. In any event, a

confrontation ensued. At some point during this confrontation, Defendants

McClure, Nix, and Donaldson, as well as several other officers, arrived on the

scene, and Asher was arrested. Defendants then searched the truck Asher had

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been driving, finding numerous guns and ammunition, and then entered and

searched Asher’s home, as well as a Corvette that was parked in front of Asher’s

property. After all of these searches, Defendants obtained a search warrant and

conducted an additional search of the house.

       Asher’s § 1983 claim asserts that Defendants’ entry and search of his home

and vehicles without a warrant, and in the absence of any exigent circumstances,

violated his Fourth Amendment rights. The district court denied Defendants’

motion for summary judgment based on qualified immunity with reference to their

entry and search of Asher’s home and the Corvette, holding that disputed issues of

material fact remained as to those issues.1 Defendants appealed.2

                                         DISCUSSION

       We review the district court’s denial of summary judgment based on

qualified immunity de novo, resolving all issues of material fact in favor of the

plaintiff. Crenshaw v. Lister, 556 F.3d 1283, 1289 (11th Cir. 2009). “Qualified

immunity shields government officials from liability for civil damages for torts

       1
            The district court granted in part Defendants’ motion for summary judgment, finding
that they were entitled to qualified immunity as to their search of Asher’s pick-up truck following
his arrest, and also that Defendant Nix was entitled to qualified immunity as to his application for
a search warrant. Asher does not appeal the district court’s qualified immunity ruling as to these
claims.
       2
          Interlocutory appeal is available from the denial of qualified immunity defenses.
Mitchell v. Forsyth, 472 U.S. 511 (1985).

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committed while performing discretionary duties unless their conduct violates a

clearly established statutory or constitutional right.” Id. As law enforcement

officers, Defendants were acting as government officials, and the parties agree that

they were acting within the scope of their discretionary authority. Thus, to

determine whether they are protected by qualified immunity, we must consider

whether the evidence, taken in the light most favorable to Asher, supports a

conclusion that Defendants violated Asher’s Fourth Amendment rights and, if so,

whether those rights were clearly established at the time of the violation. Id. at

1290.

        Defendants claim that, following Asher’s arrest, Defendants McClure, Cole,

and Donaldson entered Asher’s house to conduct a protective sweep, which lasted

no more than ten minutes and was constitutional under Maryland v. Buie, 494 U.S.

325 (1990) (permitting quick and limited search of the premises following arrest

for safety reasons). Defendants contend that, following the initial protective

sweep, they conducted a more thorough search of the residence, but only after

another officer on the scene represented to them that Asher had consented to the

search. They argue that they are entitled to qualified immunity as to this search

because they reasonably believed that consent had been obtained.




                                          4
      In making this argument, Defendants fail to take the facts in the light most

favorable to Asher. As to the protective sweep, the district court found that

      [w]hile defendants have presented sworn statements indicating that
      their protective sweep lasted no more than ten minutes, plaintiff has
      presented his own sworn statements and testimony, as well as those of
      neighbors and eyewitnesses, that ‘from the point of the government’s
      first entry into plaintiff’s home without a warrant or consent, and
      during the time plaintiff was in handcuffed [sic] in a patrol car, the
      agents on the scene, including defendants McClure, Donaldson, Cole
      and Miller were consistently and continuously going in and out of
      plaintiff’s home and vehicles for a period of at least three hours.’

(Dist. Ct. Order at 17-18 (citations and alterations omitted). As to Defendants’

argument that they believed Asher had consented to the second search of the

house, the district court found that

      Defendants’ contention is based upon defendants’ version of the
      facts, which consists of an initial search they characterize as a
      protective sweep, followed by a completely separate, later search of
      the home, during which defendants McClure, Nix, Cole, and
      Donaldson believed plaintiff had given consent. As fully set forth
      above, these facts are hotly disputed by way of contradictory sworn
      testimony from the parties and witnesses. Where, as here, the
      determination of factual issues turns on the credibility of entirely
      contradictory sworn testimony, the court cannot find that defendants
      are entitled to qualified immunity.

(Dist. Ct. Order at 20.) The district court further noted that Asher insists he never

provided consent for the search, and that Defendants appeared unclear as to which

officer told them such consent had been given.



                                          5
      On this record, the district court did not err in denying Defendants’ motion

for summary judgment on qualified immunity grounds as to the search of Asher’s

residence, as genuine issues of material fact remain as to this issue.

      As to the search of the Corvette, Defendants argue that they were permitted

to search the vehicle under the “automobile exception” to the Fourth

Amendment’s warrant requirement, which permits the police to search a vehicle

without a warrant if it is “readily mobile and probable cause exists to believe it

contains contraband.” Pennsylvania v. Labron, 518 U.S. 938, 940 (1996). The

first requirement, that the car be readily mobile, is satisfied so long as the car

“reasonably appear[s] to be capable of functioning.” United States v. Watts, 329

F.3d 1282, 1286 (11th Cir. 2003) (quotation marks omitted). It is also well-

established that “no special exigency is required beyond a showing of the mobility

of the automobile.” Id. at 1285.

      The district court correctly found that the first element of the automobile

exception was satisfied, as nothing in the facts provided a reason to believe that

the Corvette was not a functioning automobile capable of mobility. However, we

find that disputed questions of material fact remain as to whether Defendants had

probable cause to search the Corvette. Prior to the search of Asher’s house,

Defendants had no way of linking Asher to the vehicle parked outside. Taking the

                                           6
facts in the light most favorable to Asher, none of the Defendants or any other law

enforcement officer ran the license plate tags or otherwise attempted to determine

who owned the Corvette or to whom it was registered. Nor did they look inside

the car and see anything that would give them reason to believe that they would

find contraband in the car. It was only after the warrantless entry into the house, at

which point Defendants found the keys to the Corvette as well as other numerous

firearms, that they decided to search the car. Because disputed issues of material

fact remain concerning the constitutionality of the search of both the house and the

Corvette on the property, we affirm the district court’s denial of summary

judgment on qualified immunity grounds.3

       AFFIRMED.




       3
          Defendants also argue that a search of the Corvette was authorized under the rationale
of Michigan v. Long, 463 U.S. 1032, 1049 (1983), which permits the police to search a vehicle if
they have a reasonable belief that “the suspect is dangerous and the suspect may gain immediate
control of weapons.” They argue that because the Corvette was registered to someone other than
Asher, they had reason to believe that there might be another person on the premises who could
access a weapon in the Corvette and threaten the officers. However, nothing in the record
indicates that Defendants knew the car belonged to someone else before they searched it, nor
were any facts presented that would give rise to a reasonable belief that there was a dangerous
person on the premises.

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