                                                      [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                 FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                   ________________________ ELEVENTH CIRCUIT
                                                         JUNE 6, 2007
                          No. 06-14784                 THOMAS K. KAHN
                      Non-Argument Calendar                CLERK
                    ________________________

                D. C. Docket No. 05-60437-CV-WJZ

KAREN HARDY,
HENRY HANNAH,


                                                  Plaintiffs-Appellants,

                               versus

BROWARD COUNTY SHERIFF'S OFFICE,
KEN JENNE, Sheriff,
THEOPHILUS WOULARD,
MYKO COKER,
ALBURY A. BURROWS,
WILLIAM JACKSON,


                                                 Defendants-Appellees.


                    ________________________

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

                           (June 6, 2007)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Henry Hannah and Karen Hardy (“Appellants” or “Plaintiffs”), proceeding

pro se, appeal the district court’s dismissal of their civil rights action. For the

reasons that follow, we affirm.

                                  I. BACKGROUND

      Appellants filed a 42 U.S.C. § 1983 action against the Broward County

Sheriff’s Department, Sheriff Ken Jenne, Sergeant William Jackson, and Deputies

Theophilus Woulard, Albury Burrows, and Myko Coker (“Defendants”), alleging

that Defendants violated their rights under the Fourth, Fifth, Sixth, and Fourteenth

Amendments.

      According to the complaint, Hannah was inside Hardy’s apartment watching

television on January 3, 2004, when a power outage occurred. Hannah went

outside to investigate and was approached by Deputies Woulard, Burrows, and

Coker. The Deputies, with “weapons drawn,” ordered Hannah to the ground.

Hannah told the Deputies that he was not the person they were looking for, and

upon viewing Hannah’s identification (which they had retrieved from his wallet),

the Deputies asked Hannah the whereabouts of his brother, Herman Hannah.

While Hannah was lying face-down in front of the partially open door of the



                                            2
apartment, two of the Deputies entered the apartment. After approximately three

minutes, one of the Deputies exited the apartment and again asked Hannah

“where’s your brother?” Hannah replied that he did not know. The Deputies then

escorted the handcuffed Hannah into the apartment and again demanded that

Hannah tell them where they could find Herman.

      The Deputies began a warrantless search of the apartment and spotted a

white, ceramic bowl. Upon removing the lid from the bowl, the Deputies found a

plastic bag that contained what they believed to be a controlled substance. After

field-testing the substance, the Deputies determined that it was cocaine, and one of

the Deputies stated that he “[knew] now [that Hannah] would tell [them] where

[his] brother” was located. Hannah replied that he did not know Herman’s

whereabouts and stated that the Deputies were unlawfully inside the apartment.

      Around this time, Hardy entered her apartment, and upon seeing the

Deputies and a handcuffed Hannah, she asked the Deputies if they had a search

warrant. The Deputies responded that they did not have a warrant but they had

found cocaine inside the apartment. Deputy Woulard asked Hardy if she had ever

seen the cocaine-filled bags that were found in the ceramic bowl, and Hardy

replied that she had not. Hardy also noticed that Deputy Coker had entered her

bedroom and opened her dresser drawer.



                                          3
      The Deputies took Hannah to the police station and charged him with

trafficking 28 grams of cocaine. He remained in jail for 10 days before he was

released on bond. Upon his release, he filed an “internal affairs” complaint against

the Deputies with the Broward County Sheriff’s Office. Sergeant Jackson

investigated the complaint and concluded that the Deputies’ actions were proper.

Ultimately, the charge against Hannah was reduced to possession with the intent to

distribute 20 (instead of 28) grams of cocaine.

      The complaint also alleged that the Deputies harassed Hannah by “walking

out of the dark around corners during the night in the nature of an investigating

manner,” telling other officers that his brother Herman had shot at the Deputies,

and jailing him overnight for a misdemeanor charge.

      Hardy alleged that on January 4, 2004, the day after Hannah’s arrest, the

Deputies harassed her by stopping her and searching both her and her vehicle while

she was driving to her job. She also alleged that on the following day, the Deputies

stopped her and searched her while she was walking to a friend’s house. After the

second search, Hardy filed her own “internal affairs” complaint against the

Deputies. As with Hannah’s complaint, Sergeant Jackson investigated Hardy’s

complaint and ultimately found that the Deputies’ conduct was proper.

      In support of the instant complaint, Appellants attached, inter alia, (1) letters



                                           4
from the Broward County Sheriff’s Office of Professional Compliance informing

Appellants of the investigations into their complaints and the outcome of those

investigations; (2) Appellants’ affidavits; and (3) Deputy Woulard’s police report

from Hannah’s arrest.

       According to Woulard’s police report, Hannah’s brother Herman was a

fugitive wanted for aggravated assault on a law enforcement officer. Deputies

Woulard and Burrows had received information linking Herman to Hardy’s

apartment. The Deputies investigated the address on January 1, 2004 and observed

that Herman was not there. On January 3rd, the Deputies conducted a follow-up

investigation and observed Hannah walk outside and leave the apartment door

partially open. From their vantage point, which was several feet away, the

Deputies believed that Hannah was Herman, and they detained Hannah to verify

his identity. At that point, Hannah “spontaneously replied” that he “had nothing to

do with the shooting, it’s my brother you’re looking for. We look alike.” As the

Deputies escorted Hannah back toward the apartment, Deputy Woulard smelled the

aroma of “burnt cannabis.” Woulard “peek[ed] into the door” and saw, in plain

view, a white bowl1 containing a large clear plastic bag, which itself contained

smaller, clear plastic bags filled with a substance that Woulard suspected was


       1
        Deputy Woulard’s report does not indicate whether the bowl was covered (either
completely or partially) with a lid or a top.

                                              5
cocaine. The Deputies then conducted “a general non-invasive” search of the

apartment to determine whether Herman was inside. The Deputies also field-tested

the suspicious substance and confirmed that it was cocaine.

      After the Deputies gave Hannah his Miranda2 warnings, he admitted that he

had smoked marijuana before exiting the apartment and that the cocaine was his.

Hannah was then taken into custody and transported to the police station.

      In response to the complaint, Defendants filed a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion,

concluding that (1) Plaintiffs had failed to make any specific factual allegations of

wrongdoing against the Broward County Sheriff’s Department and Sheriff Jenne,

(2) Plaintiffs had failed to state a cognizable claim against Sergeant Jackson, and

(3) the Deputies were entitled to qualified immunity. This appeal followed.

                                     III. DISCUSSION

           A. Whether the Deputies were Entitled to Qualified Immunity

      On appeal, Appellants argue that they sufficiently alleged that Deputies

Woulard, Burrows, and Coker violated Hannah’s constitutional rights, and the

district court erroneously concluded that the Deputies were entitled to qualified

immunity. Specifically, Appellants assert that the Deputies violated (1) Hannah’s



      2
          Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                               6
Fourth Amendment rights by forcibly detaining him without probable cause3 and

conducting a warrantless search of Hardy’s apartment, and (2) Hannah’s right to be

informed of the charges against him under the Fourteenth and Sixth Amendments,

as the Deputies never arrested Hannah for, nor read the Miranda warnings

regarding, his “consumption of marijuana.”4

       “We review a district court’s grant of a motion to dismiss based on qualified

immunity de novo and accept well-pleaded allegations as true, construing facts in

the light most favorable to the plaintiffs.” Collier v. Dickinson, 477 F.3d 1306,

1308 (11th Cir. 2007). “A complaint is subject to dismissal under Rule 12(b)(6)

when its allegations, on their face, show that an affirmative defense bars recovery

on the claim.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). “Once the

affirmative defense of qualified immunity is advanced[,] . . . [u]nless the plaintiff’s


       3
        On appeal, Appellants also claim that the Deputies violated Hannah’s Fourteenth
Amendment rights to due process and equal protection by arresting and detaining him without
probable cause. In support of this claim, however, Appellants repeat the arguments they raise
regarding their claim that the Deputies violated Hannah’s Fourth Amendment rights by detaining
him without probable cause. We therefore address these claims together under the Fourth
Amendment rubric.
       4
          In their brief, Appellants do not challenge, and indeed do not mention, (1) the district
court’s dismissal of their claims against the Broward County Sheriff’s Department, Sheriff
Jenne, and Sergeant Jackson, (2) the dismissal of their claims of harassment by the Deputies, and
(3) the dismissal of Hardy’s claim that the Deputies violated her Fourth Amendment rights by
conducting a warrantless search of her apartment. Appellants have thus abandoned these issues
on appeal, and we do not discuss them further. Although we afford liberal construction to pro se
pleadings, a pro se litigant who offers no substantive argument on an issue in his initial brief
abandons a challenge to that issue on appeal. See Irwin v. Hawk, 40 F.3d 347, 347 n.1 (11th Cir.
1994) (noting that a pro se litigant abandons an issue by failing to challenge it on appeal).

                                                7
allegations state a claim of violation of clearly established law, a defendant

pleading qualified immunity is entitled to dismissal before the commencement of

discovery.” Marsh v. Butler County, 268 F.3d 1014, 1022 (11th Cir. 2001)

(internal quotation marks omitted).

      Qualified immunity protects government officials, acting within their

discretionary authority, “from civil trials (and the other burdens of litigation,

including discovery) and from liability if their conduct violates no clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Lassiter v. Alabama A & M Univ., Bd. of Trustees, 28 F.3d 1146,

1149 (11th Cir. 1994) (internal quotation marks omitted). To receive qualified

immunity, a government official “must first prove that he was acting within the

scope of his discretionary authority when the allegedly wrongful acts occurred.”

Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks and

citations omitted). The burden then “shifts to the plaintiff to show that qualified

immunity is not appropriate.” Id. “The Supreme Court has set forth a two-part test

for the qualified immunity analysis.” Vinyard v. Wilson, 311 F.3d 1340, 1349

(11th Cir. 2002). A court must first determine “whether [the] plaintiff’s

allegations, if true, establish a constitutional violation.” Hope v. Pelzer, 536 U.S.

730, 736, 122 S.Ct. 2508, 2513, 153 L.Ed.2d 666 (2002) (citations omitted). “If a



                                            8
constitutional right would have been violated under the plaintiff’s version of the

facts, the next, sequential step is to ask whether the right was clearly established.”

Vinyard, 311 F.3d at 1349 (internal quotation marks and citations omitted).

       Appellants do not dispute that the Deputies were acting within the scope of

their discretionary authority when the allegedly wrongful conduct occurred. Thus,

we consider only whether Appellants’ allegations, if true, establish that the

Deputies violated clearly established constitutional law.

                         1. Hannah’s Fourth Amendment Rights

       The Fourth Amendment5 provides for the right to be free of unreasonable

searches and seizures, and mandates that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV.

                    a. The Deputies’ Forcible “Detention” of Hannah

       Hannah argues that “probable cause” to “forcibly detain” him without a

warrant “ceased to exist” when the Deputies “discovered that [he] was not his

Brother Herman,” and the Deputies violated his Fourth Amendment rights by

continuing to detain him after this discovery. As the district court noted, this claim

appears to be an attempt to allege either an unlawful Terry6-stop, or an arrest


       5
          The Fourth Amendment applies to the states via the Fourteenth Amendment. United
States v. Davis, 313 F.3d 1300, 1302 (11th Cir. 2002).
       6
           Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

                                                 9
lacking probable cause.

      When a police officer makes a Terry-stop, that is, a brief seizure or

investigatory detention, United States v. Perez, 443 F.3d 772, 777 (11th Cir. 2006),

the Fourth Amendment is satisfied if the officer “has an objectively reasonable

suspicion that criminal activity may be afoot.” United States v. Dunn, 345 F.3d

1285, 1289 (11th Cir. 2003) (internal quotation marks omitted). “Reasonable

suspicion is determined from the totality of circumstances and collective

knowledge of the officers.” United States v. Nunez, 455 F.3d 1223, 1226 (11th

Cir. 2006).

      When a police officer makes an arrest, as opposed to a Terry-stop, the

officer must have probable cause to believe that the arrestee has committed, is

committing, or is about to commit a crime. See Wood v. Kesler, 323 F.3d 872, 878

(11th Cir. 2003). If the officer lacks probable cause, the arrest violates the Fourth

Amendment, id., and “the arrestee has a claim under section 1983 for false

imprisonment based on a detention pursuant to that arrest.” Ortega v. Christian, 85

F.3d 1521, 1526 (11th Cir. 1996). But the existence of probable cause is an

absolute bar to such claims. Marx v. Gumbinner, 905 F.2d 1503, 1505-06 (11th

Cir. 1990).

      “For probable cause to exist, an arrest must be objectively reasonable based



                                          10
on the totality of the circumstances.” Lee, 284 F.3d at 1195. “This standard is met

when the facts and circumstances within the officer’s knowledge, of which he or

she has reasonably trustworthy information, would cause a prudent person to

believe, under the circumstances shown, that the suspect has committed, is

committing, or is about to commit an offense.” Rankin v. Evans, 133 F.3d 1425,

1435 (11th Cir. 1998) (internal quotation marks omitted). “To receive qualified

immunity protection, an officer need not have actual probable cause but only

arguable probable cause.” Wood, 323 F.3d at 878 (internal quotation marks

omitted). Because only arguable probable cause is required, “the inquiry is not

whether probable cause actually existed, but instead whether an officer reasonably

could have believed that probable cause existed, in light of the information the

officer possessed.” Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997).

      After reviewing the record, we conclude that the facts alleged do not

demonstrate that the Deputies lacked either reasonable suspicion to stop Hannah or

arguable probable cause to arrest him. First, Hannah concedes that the Deputies’

initial stop was proper on the basis of misidentification, as it was made in order to

determine whether Hannah was his brother Herman, a fugitive from the law.

Moreover, in the police report, Deputy Woulard asserted that upon escorting

Hannah back to the apartment, he smelled burnt cannabis emanating from the



                                          11
residence. Appellants failed to challenge this assertion in either their complaint or

their brief. The smell of cannabis emanating from the apartment would have

caused a prudent person to believe that cannabis could be found inside the

apartment and that Hannah (or someone else inside the apartment) had been

smoking it.7 As discussed in greater detail below, the smell of cannabis coupled

with the possibility that Herman might have been inside the apartment created both

probable cause and exigent circumstances sufficient to justify the Deputies’ entry

into and search of the apartment. And contrary to Hannah’s assertions, the cocaine

found inside the apartment during this search provided the Deputies with probable

cause to arrest him for the offense with which he was ultimately charged. As such,

the facts alleged do not establish a Fourth Amendment violation regarding

Hannah’s arrest and detention, and thus, the district court did not err in holding that

the Deputies were entitled to qualified immunity on this claim.

            b. The Deputies’ Warrantless Search of Hardy’s Apartment

       Hannah also contends that the Deputies’ warrantless search of Hardy’s

apartment violated Hannah’s Fourth Amendment rights because the Deputies

lacked probable cause to enter and search the apartment when they discovered that



       7
         Under Florida law, cannabis is a controlled substance, Fla. Stat. § 893.03(5), and the
possession of cannabis is either a misdemeanor or felony offense depending on the amount, Fla.
Stat. § 893.13(6)(a)-(b).

                                               12
Hannah was not his brother Herman. We disagree.

      In general, unless there is consent, police officers must obtain a warrant

supported by probable cause to justify a search under the Fourth Amendment.

United States v. Magluta, 418 F.3d 1166, 1182 (11th Cir. 2005). A warrantless

search inside a person’s home is therefore presumptively unreasonable. United

States v. Burgos, 720 F.2d 1520, 1525 (11th Cir. 1983). There are, however,

exceptions to the warrant requirement. Magluta, 418 F.3d at 1182. For example, a

warrantless search is justified where both probable cause and exigent

circumstances exist. United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000).

“Recognized situations in which exigent circumstances exist include: danger of

flight or escape; danger of harm to police officers or the general public; risk of

loss, destruction, removal, or concealment of evidence; and hot pursuit of a fleeing

suspect.” Id. at 669 (internal quotation marks omitted).

      Here, Deputy Woulard asserted that he smelled “burnt cannabis” emanating

from the partially open door of the apartment—an assertion Hannah does not deny.

The Deputies therefore had probable cause to believe that someone inside the

apartment had been smoking cannabis and that this cannabis could be found

somewhere inside the apartment. Moreover, had the Deputies delayed entering the

apartment, they risked the “loss, destruction, removal, or concealment of evidence”



                                          13
of this suspected crime, thereby creating exigent circumstances. See id. Thus,

even had the cocaine-filled, plastic bags not been “in plain view” from outside the

partially open door of the apartment (that is, even had the ceramic bowl been

covered with a lid as Hannah alleged), the Deputies had probable cause to believe

that cannabis could be found somewhere inside the apartment (including inside the

ceramic bowl), and there was a risk that Hannah would remove or destroy this

cannabis (or the possible vestiges thereof). This combination of probable cause

and exigent circumstances justified the Deputies’ warrantless search of Hannah’s

apartment, and therefore, the cocaine found inside the ceramic bowl was properly

seized. That the Deputies did not find any cannabis is of no moment, especially

where following Hannah’s arrest, he admitted that he had smoked cannabis inside

the apartment just before the Deputies arrived.8

       Furthermore, the Deputies had received information linking Herman, a

fugitive, to the apartment. As such, there was at least arguable probable cause to

believe that Herman was inside the apartment and that Hannah was therefore

harboring a fugitive. And had the Deputies delayed entering the apartment, they

risked the possibility that Herman would flee.



       8
        Hannah does not dispute Deputy Woulard’s contention that following his arrest, he
admitted to the Deputies that he had smoked cannabis inside the apartment just before the
Deputies arrived.

                                              14
       Accordingly, Hannah has failed to establish that the warrantless search of

Hardy’s apartment violated his constitutional rights, and thus, the district court did

not err in concluding that the Deputies were entitled to qualified immunity on this

claim.9

            2. Hannah’s Right to Be Informed of the Charges Against Him

       Hannah also argues that the Deputies violated his constitutional right to be

informed of the charges against him because the Deputies never arrested him for,

nor read the Miranda warnings regarding, his “consumption of marijuana.”

Hannah contends that he was never “informed of the nature of marijuana being

burned in the apartment” even though Woulard claimed to have entered the

apartment because he smelled cannabis.

       The Sixth Amendment10 provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right to . . . be informed of the nature and cause of the

accusation.” U.S. Const. amend. VI (emphasis added). That is, “[t]he Sixth

Amendment guarantees every defendant the right to be informed of the

Government’s accusation against him.” United States v. Silverman, 745 F.2d

       9
         The district court based its conclusion on a finding that Hannah had failed to assert that
he had a reasonable expectation of privacy in Hardy’s apartment. But we may affirm the
judgment below “on any ground that finds support in the record.” Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249, 1256 (11th Cir. 2001).
       10
        The Sixth Amendment is applicable to the states via the Fourteenth Amendment.
Moon v. Head, 285 F.3d 1301, 1314 n.15 (11th Cir. 2002).

                                                15
1386, 1392 (11th Cir. 1984).

      Here, it is undisputed that Hannah was never “criminally prosecut[ed]” for

or formally charged with marijuana consumption. Hannah does not have a

constitutional right to be informed of accusations that the Government never made,

and he therefore could not have suffered a Sixth Amendment violation for an

offense for which he was never charged or prosecuted. Thus, Hannah has not

established a constitutional violation, and the Deputies are entitled to qualified

immunity on this claim. See Hope, 536 U.S. at 736, 122 S.Ct. at 2513.

         B. Failure to Allow Discovery or Hold an Evidentiary Hearing

      Appellants also contend that the district court erred by failing to hold an

evidentiary hearing or allow discovery before dismissing the complaint. We

review for abuse of discretion the district court’s denial of discovery. Arthur v.

Allen, 452 F.3d 1234, 1243 (11th Cir. 2006). We also review the district court’s

grant of a motion to dismiss without an evidentiary hearing for abuse of discretion.

Sunseri v. Macro Cellular Partners, 412 F.3d 1247, 1250 (11th Cir. 2005).

      Qualified immunity “is an immunity from suit rather than a mere defense to

liability.” Cottrell v. Caldwell, 85 F.3d 1480, 1487 (11th Cir. 1996). Thus,

qualified immunity protects government officials not only from having to stand

trial, but from having to bear the burdens attendant to litigation, including pretrial



                                           16
matters such as discovery. Blinco v. Green Tree Servicing, LLC, 366 F.3d 1249,

1252 (11th Cir. 2004). As such, “qualified immunity questions should be resolved

at the earliest possible stage of a litigation.” Anderson v. Creighton, 483 U.S. 635,

646 n.6, 107 S.Ct. 3034, 3042 n.6, 97 L.Ed.2d 523 (1987).

      As discussed above, we conclude that the district court did not err in finding

that the Deputies were entitled to qualified immunity in this case. Because we

reached this conclusion accepting Appellants’ version of events as true, additional

facts adduced during discovery would not have aided this determination. And

because qualified immunity protects government officials from having to bear the

burdens of pretrial matters such as discovery, we conclude that the district court

did not abuse its discretion by dismissing the complaint before discovery.

      For similar reasons, we also reject Appellants’ contention that the district

court abused its discretion by failing to conduct an evidentiary hearing. Again,

accepting Appellants’ account of the facts as true, we conclude that they failed to

establish that the Deputies violated clearly established constitutional law.

Additional facts adduced from an evidentiary hearing would not have aided in this

determination. Moreover, “courts will ‘turn a deaf ear to protests that an

evidentiary hearing should have been convened but was not, where . . . the

protestor did not seasonably request such a hearing in lower court.’” Sunseri, 412



                                          17
F.3d at 1250 (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1120 (1st Cir.

1989)). Here, Appellants never requested an evidentiary hearing in the district

court. We therefore conclude that the district court did not abuse its discretion by

failing to convene such a hearing.

                     C. Opportunity to Amend the Complaint

       Finally, Appellants argue that the district court should have granted them

leave to amend their complaint, even though they never requested leave to amend

before the district court.

       In Wagner v. Daewoo Heavy Industries America Corp., 314 F.3d 541, 542

(11th Cir. 2002) (en banc), this court held that a district court was not required to

sua sponte grant a counseled party leave to amend his complaint when no motion

to amend had been filed. The applicability of Wagner to pro se litigants, however,

remains an open question. See id. at 542 n.1 (“In this opinion, we decide and

intimate nothing about a party proceeding pro se.”). But even if we were to hold

that Wagner does not extend to pro se plaintiffs, in this case, the district court

properly dismissed Appellants’ complaint without sua sponte granting them leave

to amend because amendment would have been futile. See Hall v. United Ins. Co.

of Am., 367 F.3d 1255, 1262 (11th Cir. 2004) (holding that “denial of leave to

amend is justified by futility when the complaint as amended is still subject to



                                           18
dismissal”). As we concluded above, Appellants failed to establish that the

Deputies violated clearly established constitutional law, and therefore, the Deputies

are entitled to qualified immunity. Accordingly, the district court did not err in

failing to sua sponte grant Appellants leave to amend their complaint.

                                III. CONCLUSION

      For the foregoing reasons, we AFFIRM.




                                          19
