             Case: 18-12388   Date Filed: 06/27/2019   Page: 1 of 15


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-12388
                         ________________________

                   D.C. Docket No. 6:15-cv-00807-PGB-DCI

WILLIAM RIVERA,
TROY COPELAND,

                                                          Plaintiffs – Appellants,


                                    versus


JORGE CARVAJAL, Badge No. 1563, in his individual capacity,
TODD RAIBLE, Badge No. 7046, in his individual capacity, et al.,

                                                        Defendants - Appellees.

                         ________________________

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

                                (June 27, 2019)
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Before TJOFLAT, MARTIN, and TRAXLER, * Circuit Judges.

TRAXLER, Circuit Judge:

       Plaintiffs-Appellants William Rivera and Troy Copeland, along with a third

plaintiff, Michael Montanez, brought this lawsuit under 42 U.S.C. § 1983, against

several officers from the Volusia (Florida) County Sheriff’s Office, for alleged

violations of their Fourth Amendment rights. The allegations arise out of the

officers’ response to a suspected burglary at Montanez’s home, the seizures and

arrests of Rivera and Copeland immediately outside the home, and the ensuing

warrantless entries and searches of the home. The only remaining defendant in this

appeal is Officer Todd Raible—the officer who observed what he believed to be a

burglary in progress and who initiated the seizures of Rivera and Copeland prior to

entering the home.

       In this appeal, Rivera and Copeland challenge the district court’s order

granting summary judgment to Officer Raible on their § 1983 unlawful-seizure

claims. Copeland also appeals the district court’s earlier order granting Officer

Raible’s motion to dismiss his § 1983 claim that he was unlawfully arrested for

being in possession of a suspended driver’s license in violation of Florida law.

After careful consideration, and with the benefit of oral argument, we affirm.



       *
          Honorable William B. Traxler, Jr., United States Circuit Judge for the Fourth Circuit,
sitting by designation.

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                                           I.

      This is not the first time we have addressed the facts underlying this lawsuit.

Although the district court granted Officer Raible qualified immunity from

Rivera’s and Copeland’s unlawful-seizure claims, the court denied the officers’

motion for summary judgment on Montanez’s unlawful entry and search claims.

In the prior interlocutory appeal from the district court’s denial of qualified

immunity on Montanez’s claims, we addressed at length the undisputed facts, from

which we borrow heavily. See Montanez v. Carvajal, 889 F.3d 1202 (11th Cir.

2018).

      On March 29, 2011, Officer Raible was driving his unmarked patrol car on

his way to work and drove through an area that was known to him to have been

experiencing a rash of daytime burglaries. As he passed by the home at 1127 West

New York Avenue, Officer Raible noticed a white male in his early 20s—later

identified as Rivera—talking on a cell phone in front of the home. There were no

cars in the driveway. Rivera “seemed anxious and kind of hunched as he paced up

and down in front of the house.” Id. at 1205 (internal quotation marks omitted).

Suspicious, Officer Raible surveilled the area around the home and his “suspicions

deepened when, as he watched, Rivera walked down a side street toward the back

of the dwelling.” Id. There, Raible observed a second young man—later

identified as Copeland—who appeared to Raible to be huddling or hunched near

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the back door of the home. Based on his experience, and his knowledge of the

recent burglaries in the area, Officer Raible believed that Copeland was acting “as

a ‘lookout’ while Rivera broke into the house.” Id. Officer Raible “radioed for

backup, describing the unfolding situation as a ‘burglary in progress.’” Id.

      Officer Jorge Carvajal was the first officer to respond to Officer Raible’s

request for assistance. The two officers met nearby to quickly “formulate[] a plan

for approaching the suspects.” Id. When he returned to the home, Officer Raible

observed Rivera and Copeland still at the back door. Officer Raible approached

the men with his gun drawn and ordered them to get on the ground. Officer

Carvajal quickly followed, also with gun drawn. The suspects were then placed in

handcuffs.

      Because Officer Raible believed that there could be more perpetrators and

potential victims in the home, he made a brief initial entry into the home. He

leaned inside the back door of the home and shouted, “Sheriff’s office, come out if

anybody’s in there, sheriff’s office.” Id. at 1206 (internal quotation marks

omitted). After waiting approximately 10 seconds and hearing no response,

Officer Raible returned to the suspects. Officers Raible and Carvajal then searched

both men. Rivera had two kitchen knives in his pants pockets. Officer Raible also

observed fresh pry marks near the handle of the back door, which appeared to be

consistent with the knives he had found in Rivera’s possession. The officers also

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obtained identification cards from Rivera and Copeland, neither of which listed

1127 West New York Avenue as a home address. This further supported Officer

Raible’s and Officer Carvajal’s belief “that they had interrupted an ongoing

burglary.” Id.

      Additional officers who responded to the call made a second entry and

“sweep” of the home to check for perpetrators or victims and observed marijuana

and drug paraphernalia in plain view. This ultimately led to the procurement of a

search warrant and the discovery of over $18,000 in cash, and additional drugs and

drug paraphernalia. In the meantime, Rivera was arrested on an outstanding child-

support warrant and Copeland was arrested for being in possession of a suspended

driver’s license. It was later determined that the home belonged to Montanez and

that Rivera and Copeland were staying in the home with Montanez. The money

was determined to be legitimate, and because the police were unable to determine

who the drugs and drug paraphernalia belonged to, no charges were filed. This

lawsuit followed.

      In February 2016, the district court granted Officer Raible’s motion to

dismiss Rivera’s and Copeland’s unlawful-arrest claims under Federal Rule of

Civil Procedure 12(b)(6), based upon qualified immunity. In December 2016, the

district court granted Officer Raible’s motion for summary judgment on Rivera’s

and Copeland’s claims of unlawful seizure, also based on qualified immunity.

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Rivera and Copeland now appeal the district court’s order granting Officer

Raible’s motion for summary judgment on the basis of qualified immunity from

the unlawful seizure claims, and Copeland also appeals the district court’s order

granting Officer Raible’s Rule 12(b)(6) motion to dismiss Copeland’s claim that

his arrest under the suspended-license statute was unlawful.

                                          II.

      We first address the district court’s order granting summary judgment to

Officer Raible on Rivera’s and Copeland’s claims of unlawful seizure under 42

U.S.C. § 1983.

      “We review de novo the grant of summary judgment on qualified immunity

grounds, drawing all inferences and viewing all of the evidence in a light most

favorable to the nonmoving party.” Gilmore v. Hodges, 738 F.3d 266, 272 (11th

Cir. 2013). “We resolve all issues of material fact in favor of the plaintiff, and then

determine the legal question whether the defendant is entitled to qualified

immunity under that version of the facts.” Montanez, 889 F.3d at 1207 (alteration

omitted).

      “Qualified immunity offers complete protection for government officials

sued in their individual capacities if their conduct ‘does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting

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Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It “allow[s] government officials

to carry out their discretionary duties without the fear of personal liability or

harassing litigation, protecting from suit all but the plainly incompetent or one who

is knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th

Cir. 2002) (internal quotation marks and citation omitted).

      To obtain qualified immunity, the officer “must first prove that he was

acting within the scope of his discretionary authority when the allegedly wrongful

acts occurred.” Id. (internal quotation marks omitted). “Once the defendant

establishes that he was acting within his discretionary authority, the burden shifts

to the plaintiff to show that qualified immunity is not appropriate.” Id.

      “Overcoming the official’s qualified immunity defense involves two steps.

First, the plaintiff must establish that the defendant’s conduct violated a statutory

or constitutional right.” Skop v. City of Atlanta, 485 F.3d 1130, 1137 (11th Cir.

2007). “Next, the plaintiff must show that the violation was clearly established.”

Id. (internal quotation marks omitted). “Both elements of this test must be present

for an official to lose qualified immunity, and this two-pronged analysis may be

done in whatever order is deemed most appropriate for the case.” Brown v. City of

Huntsville, 608 F.3d 724, 734 (11th Cir. 2010) (citing Pearson v. Callahan, 555

U.S. 223 (2009)).




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      The Fourth Amendment prohibits an arrest that is not supported by probable

cause. “Probable cause exists where the facts within the collective knowledge of

law enforcement officials, derived from reasonably trustworthy information, are

sufficient to cause a person of reasonable caution to believe that a criminal offense

has been or is being committed.” Brown, 608 F.3d at 734. However, even if a

police officer makes an arrest without probable cause, he is nevertheless entitled to

qualified immunity if he had “arguable probable cause” to make the arrest. Skop,

485 F.3d at 1137 (internal quotation marks omitted). Arguable probable cause

requires the court to ask “whether reasonable officers in the same circumstances

and possessing the same knowledge as the Defendant could have believed that

probable cause existed to arrest.” Id. (alteration omitted).

      Officer Raible was unquestionably “acting within the scope of [his]

discretionary authority” as a property crimes investigator for the Volusia County

Sheriff’s Office when he approached Rivera and Copeland and ordered them to get

on the ground at gunpoint. Montanez, 889 F.3d at 1207. Accordingly, to defeat

the motion for summary judgment based upon qualified immunity, Rivera and

Copeland were required to show that Officer Raible violated his constitutional

rights and that those rights were clearly established at the time of the searches in

question.




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      Our decision in Montanez addresses issues that are virtually identical to

those before us, and its holding makes clear that Officer Raible is likewise entitled

to qualified immunity from Rivera’s and Copeland’s unlawful-seizure claims. In

the Montanez appeal, the responding officers (including Officer Raible) argued,

inter alia, that Officer Raible’s first 10-second entry into Montanez’s home, as

well as the other officers’ second four-minute sweep of the home, were justified by

the “exigent circumstances” posed by the suspected burglary. We agreed.

      We held that it was “clear” that the defendant officers “had probable cause

to suspect a burglary,” id. at 1211, and recited the following facts in support.

      Just before the incident, Officer Raible had been driving through an
      area that he knew was experiencing a spate of daytime burglaries. He
      observed Rivera walking around—seemingly nervously—while
      talking on a cell phone in front of a house whose driveway had no cars
      in it. He then watched Rivera take an unusual path around the house
      to the back door, where he also observed Copeland move into what
      appeared to be a lookout position. After detaining and searching the
      men, Raible found two kitchen knives in Rivera’s pockets, and
      observed what seemed to be fresh—and matching—pry marks near
      the handle of the home’s back door. Finally, Rivera’s and Copeland’s
      IDs listed addresses different from the house’s. Under these
      circumstances, it was perfectly reasonable for the officers to conclude
      that they had interrupted a burglary.
Id. We also held that this “suspected burglary present[ed] an ‘exigent

circumstance,’” that justified the officers’ initial entries to search for potential

suspects and victims. Id. at 1205. Of particular relevance to this appeal, we

observed that first, “and most significantly,” Officer Raible’s “initial entry into the


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vestibule . . . complied with the Fourth Amendment” because it was “justified by

the ‘exigent circumstances’ created by the suspected burglary.” Id. at 1207-08.

The reason is obvious. “[I]f police have probable cause to suspect a residential

burglary—whether they believe the crime is currently afoot or has recently

concluded—they may, without further justification, conduct a brief warrantless

search of the home to look for suspects and potential victims.” Id. at 1208-09.

Accordingly, the officers were entitled to qualified immunity from Montanez’s

claims that the initial two entries violated his Fourth Amendment rights.

      For the same reasons, Officer Raible is entitled to qualified immunity from

Rivera’s and Copeland’s claims that they were unlawfully seized prior to these

entries. When Officer Raible approached the plaintiffs and ordered them to the

ground, he was aware of the “spate of daytime burglaries” occurring in the area.

Id. at 1211. “He observed Rivera walking around—seemingly nervously—while

talking on a cell phone in front of a house whose driveway had no cars in it.” Id.

During his continued surveillance of the home, he observed “Rivera take an

unusual path around the house to the back door, where he also observed Copeland

move into what appeared to be a lookout position.” Id. Officer Raible’s

observations, coupled with his knowledge and experience, were “sufficient to

cause a person of reasonable caution to believe that a criminal offense has been or

is being committed.” Brown, 608 F.3d at 734. And the very same exigent

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circumstances that justified Officer Raible’s initial 10-second entry into the home

to check for additional perpetrators and potential victims justified Officer Raible’s

seizure of Rivera and Copeland for a burglary in progress just seconds prior to that

initial entry.

        As we noted in Montanez, “[i]t would make no sense to compel an officer

confronting a suspected burglary to quit the scene to procure a warrant, thereby

jeopardizing the premises, the prospect of catching the culprits, and the safety of

potential victims inside the house.” 889 F.3d at 1210. “It does not meet the needs

of law enforcement or the demands of public safety to require officers to walk

away from a situation like the one they encountered here.” Id. (internal quotation

marks omitted). The same logic applies here. Officer Raible could not be

expected to stand by and do nothing when he possessed the reasonable belief that a

burglary was in progress and that the safety of innocent homeowners was

potentially in jeopardy.

       Plaintiffs take issue with our relying upon the Montanez decision too much

because, in their view, our holding that Officer Raible had probable cause to make

his initial warrantless entry into the home was based on facts that only became

known to Officer Raible after the seizure—specifically, the discovery of the

kitchen knives in Rivera’s pockets, the fresh pry marks on the back door, and the

suspects’ identifications which listed a different home address. We disagree.

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      First, we noted at the outset of the opinion that Officers Raible and Carvajal

had “interrupt[ed] what they reasonably believe[d] to be a residential burglary” and

had “detain[ed] two suspects just outside the house.” Id. at 1205. Accordingly,

Montanez establishes that Officer Raible had probable cause to seize the suspects

based solely upon his knowledge and observations prior to the seizure. Moreover,

Officer Raible made his initial 10-second entry into the home to check for

additional perpetrators and potential victims after the suspects were detained, but

before the suspects were searched and the knives and identifications obtained.

Therefore, the facts that we relied upon as justifying the first entry by Officer

Raible are virtually the same as the facts that were known to Officer Raible at the

moment that he seized the suspects.

      Second, Officer’s Raible’s entitlement to qualified immunity does not

require actual probable cause. It requires only that he had “arguable probable

cause” to believe that Rivera and Copeland were engaged in a burglary. A

reasonable officer in the same circumstances and possessing the same knowledge

as Officer Raible could have believed probable cause existed to further detain the

suspects. See Lee, 284 F.3d at 1195 (“Arguable probable cause exists where

reasonable officers in the same circumstances and possessing the same knowledge

as the Defendant could have believed that probable cause existed to arrest.”

(internal quotation marks and alteration omitted)). Accordingly, we affirm the

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district court’s judgment granting Officer Raible qualified immunity from Rivera’s

and Copeland’s claims of unlawful seizure. 1

                                               III.
       We also affirm the district court’s dismissal of Copeland’s claim that he was

unlawfully arrested for being in possession of a suspended driver’s license.

       The grant of a dismissal based on an assertion of qualified immunity is also

reviewed de novo. Leslie v. Hancock Cty. Bd. of Educ., 720 F.3d 1338, 1343 (11th

Cir. 2013). “A motion to dismiss a complaint on qualified immunity grounds will

be granted if the complaint fails to allege the violation of a clearly established

constitutional right.” Id. (internal quotation marks omitted). “Whether a

complaint sets forth a violation is a question of law that we review de novo.” Id.

(internal quotation marks omitted).




       1
          Plaintiffs do not dispute that Officer Raible arguably had reasonable suspicion to
believe that a burglary was in progress, as the district court found, but contend that subsequent
caselaw has confirmed that this was the wrong standard. Relying upon our opinion in Moore v.
Pederson, 806 F.3d 1036 (11th Cir. 2015), plaintiffs assert that the officers were required to have
probable cause to seize them because the seizure took place within the curtilage of Montanez’s
home and, because they did not have it, Officer Raible’s only option was to ask the plaintiffs to
come out to the street or approach them in a nonthreatening manner for a consensual encounter.
However, we need not address this novel argument because Officer Raible clearly had probable
cause to believe that a burglary was in progress and exigent circumstances justified the seizure
and detention of the suspects. See id. at 1039 (“The government may not enter a person’s home
to effect a warrantless arrest without probable cause and either consent or exigent
circumstances.”).



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      Under Florida law, it is a second-degree misdemeanor to possess “any

canceled, revoked, suspended, or disqualified driver license knowing that such

license has been canceled, revoked, suspended, or disqualified.” Fla. Stat. §

322.32(1). Copeland does not dispute that his license was suspended and he was in

possession of it at the time of his arrest. Rather, he asserts that the officers lacked

probable cause to arrest him unless and until they obtained evidence that Copeland

had the requisite statutory knowledge to convict him. We disagree.

      As the district court correctly observed, it is not necessary for a police

officer to hold proof of every element of a crime to have arguable probable cause.

See Scarbrough v. Myles, 245 F.3d 1299, 1302-03 (11th Cir. 2001) (per curiam)

(“Arguable probable cause does not require an arresting officer to prove every

element of a crime or obtain a confession before making an arrest, which would

negate the concept of probable cause and transform arresting officers into

prosecutors.”); United States v. Everett, 719 F.2d 1119, 1120 (11th Cir. 1983) (per

curiam) (“While intent is an element of the crime [of passing counterfeit currency],

it is not necessary in order to establish probable cause to arrest.”). Although the

crime of possessing a suspended license requires knowledge of the suspension,

Officer Raible was not required to have evidence of knowledge to have arguable

probable cause to arrest. It was reasonable to infer knowledge from possession.




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Accordingly, we affirm the district court’s order granting the officers qualified

immunity on Copeland’s unlawful arrest claim as well.

                                         IV.

      For the foregoing reasons, we affirm the district court’s order granting

summary judgment to Officer Raible on plaintiffs’ claims under 42 U.S.C. § 1983

for unlawful seizure in violation of the Fourth Amendment. We also affirm the

district court’s order dismissing Copeland’s claim of unlawful arrest.

AFFIRMED




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