     Case: 13-60611      Document: 00512617115         Page: 1    Date Filed: 05/02/2014




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

                                                                                    FILED
                                    No. 13-60611                                 May 2, 2014
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
RYAN WOLFE,

                                                 Plaintiff - Appellant
v.

JAMES MEZIERE, Individually and in His Official Capacity as a Police
Officer of the City of Olive Branch, Mississippi;

LAWRENCE VAUGHN, Individually and in His Official Capacity as a Police
Officer of the City of Olive Branch, Mississippi,

                                                 Defendants - Appellees


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 3:12-CV-30


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       This is an appeal from the district court’s grant of Appellees’ motion for
summary judgment on the basis of qualified immunity. Appellees are police
officers in the City of Olive Branch, Mississippi, who arrested Appellant while
he was staying at a hotel. It is uncontested in this case that Appellees were
responding to a 911 emergency call regarding Appellant’s behavior. As the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-60611
transcript of the call shows, the 911 caller stated that Appellant was
“staggering around” the hotel with “a gun on the side of his hip” and
“threatening people” while “either wasted, drunk or on some kind of drugs.”
According to Appellee’s unrebutted affidavit, once they arrived at the hotel,
appellees observed “at least twenty angry and upset hotel guests” who reported
that they “witnessed the man with the gun and his strange conduct.” Appellees
then arrested Appellant, searched Appellant’s hotel room, and seized
Appellant’s two guns from a nightstand. It is uncontested that the search and
seizure “occurred contemporaneously” with the arrest and that Appellant told
Appellees where to find the two guns just prior to being handcuffed. Appellant
was then charged under Mississippi Code § 97-35-5, which prohibits
interference with business customers. The charges were later dropped.
      Claiming that Appellees had violated the Fourth and Fourteenth
Amendments by acting without a warrant, Appellant brought suit against
Appellees in both their individual capacities and official capacities. Appellant
also claimed that Appellees had violated state law. At this stage, however,
Appellant has dropped his claims under state law and his federal claims
against Appellees in their official capacities.
      In Appellant’s words, therefore, “the sole remaining contested issue” is
whether the district court was correct to grant summary judgment on the basis
of Appellees’ qualified immunity from suit in their individual capacities.
According to Appellant, there was no probable cause that would have justified
his arrest. According to Appellant, there also was no exigent circumstance that
would justify the search of his hotel room.        Therefore, Appellant argues,
Appellees are not entitled to qualified immunity.
      We disagree. “[T]he usual summary judgment burden of proof is altered
in the case of a qualified immunity defense. . . . An officer need only plead his
good faith, which then shifts the burden to the plaintiff, who must rebut the
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                                      No. 13-60611
defense by establishing that the officer’s allegedly wrongful conduct violated
clearly established law.” 1 In this case, therefore, Appellant “bears the burden
of negating the defense and cannot rest on conclusory allegations and
assertions but must demonstrate genuine issues of material fact regarding the
reasonableness of the officer’s conduct.” 2 As the Supreme Court explained in
Malley v. Briggs, 475 U.S. 335, 341 (1986), the doctrine of qualified immunity
“provides ample protection to all but the plainly incompetent or those who
knowingly violate the law.”
       Accordingly, where a warrantless arrest without probable cause is
alleged, “law enforcement officials who ‘reasonably but mistakenly conclude
that probable cause is present’” are entitled to qualified immunity. 3 “[I]f
officers of reasonable competence could disagree on this issue, immunity
should be recognized.” 4 As we held in Crostley v. Lamar County, Texas, 717
F.3d 410, 422-23 (5th Cir. 2013), we determine “whether an officer was
objectively unreasonable after taking into account the totality of the
circumstances at the time the arrests were made.” Here, based on the report
made by the 911 caller that Appellant was “staggering around” the hotel with
“a gun on the side of his hip” and “threatening people” while “either wasted,
drunk or on some kind of drugs,” -- combined with Appellees’ observations once
they arrived on the scene -- the Appellees reasonably concluded that they had
probable cause to believe that Appellant had interfered with the hotel’s
business customers in violation of Mississippi Code § 97-35-5. Because there



       1  Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005); Bazan ex rel. Bazan v.
Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001).
        2 Michalik, 422 F.3d at 262; Bazan, 246 F.3d at 489.
        3 Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 206 (5th Cir. 2009) (quoting Mendenhall

v. Riser, 213 F.3d 226, 230 (5th Cir. 2000)).
        4 Mendenhall, 213 F.3d at 230 (quoting Babb v. Dorman, 33 F.3d 472, 477 (5th Cir.

1994)).
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                                     No. 13-60611
is no genuine dispute regarding what was said during the 911 call or Appelles’
observations on the scene, the district court correctly concluded that Appellees
were entitled to summary judgment.
      Similarly, there is no genuine dispute regarding any material fact with
respect to the reasonableness of the warrantless search. In a hotel room, 5 just
as in a person’s residence, an officer may perform a warrantless search if the
officer has probable cause to believe “that contraband is inside or that an illegal
act is taking place” and if the officer is presented with “exigent circumstances,”
which may include the officer’s reasonable fear for his or her own safety. 6 Here,
based on the report made by the 911 caller that Appellant was “staggering
around” and was potentially “on some kind of drugs,” Appellees reasonably
concluded that they had probable cause to believe that there might be
contraband in Appellant’s hotel room.            Moreover, a “gun on the side of
[Appellant’s] hip” had been described earlier that evening by the 911 caller,
but this gun was not immediately visible to Appellees when the hotel room’s
door was opened. It was therefore reasonable for Appellees to conclude that
this hidden weapon might pose a threat to their safety, which therefore created
an exigent circumstance. 7 Since Appellant himself told Appellees to check the
nightstand for his guns and the search occurred contemporaneously with the
arrest, it was also reasonable for Appellees to conclude that such a search
would be “no broader than necessary to deal with the exigency.” 8
      Based on the record before us, therefore, Appellant has failed to identify
any issue of material fact that would justify denying Appellees’ motion for
summary judgment. Because Appellees acted reasonably in performing the



      5 See United States v. Hearn, 563 F.3d 95, 105 (5th Cir. 2009).
      6 See United States v. Newman, 472 F.3d 233, 236-38 (5th Cir. 2006).
      7 See id. at 238.
      8 See Tamez v. City of San Marcos, Texas, 118 F.3d 1085, 1093 (5th Cir. 1997).

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                               No. 13-60611
warrantless arrest, search, and seizure, Appellees are entitled to qualified
immunity. Accordingly, the district court must be AFFIRMED.
     AFFIRMED.




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