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

                                      No. 16-20783
                                                                                Fifth Circuit

                                                                              FILED
                                                                        February 1, 2018

BARBARA ANN THOMAS; JOHN THOMAS,                                         Lyle W. Cayce
                                                                              Clerk
              Plaintiffs - Appellants

v.

J. J. WILLIAMS,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CV-2711


Before BARKSDALE, DENNIS, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT:*
       This is an appeal from a district court order denying Barbara Ann
Thomas and John Thomas’s motion for summary judgment on their 42 U.S.C.
§ 1983 claim against a police officer from the Houston Police Department
(“HPD”) and granting summary judgment in favor of the HPD officer.
       Barbara Ann Thomas and her son, John Thomas, reside at 5816 Hirsch
Road, in Houston, Texas. The appellee, J.J. Williams, is a Senior Officer in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20783
HPD’s narcotics division. As Williams asserted in his affidavit submitted in
support of his cross-motion for summary judgment, on April 21, 2014, he began
investigating claims of drug activity on the 5800 block of Hirsch Road. The
initial information Williams received was that drugs were being sold from
“5814 1/” Hirsch Road. A complaint from April 30, 2014 informed of drug
activity at 5814 Hirsch Road. HPD also had an email from the Mayor’s office,
which included the following information:
      Black truck on the street that drug dealers sleep in is used to deal
      drugs. Drugs are being dealt to school kids and around school kids.
      Dealers are threatening neighbors and damaging property. 5800
      Hirsch Rd. is the block number, and the house that some of the
      drug dealers live in is 5814 ½ Hirsch Rd. . . .
      On May 7, 2014, Williams and a fellow officer took a confidential
informant (“C.I.”) to the location to attempt a narcotics purchase. During the
operation, the officers “maintained distant and rolling surveillance, so not to
be ‘picked off’ by any ‘look outs,’” which had happened during a previous
narcotics purchase attempt in the complex. The C.I. was sent to look for the
apartment numbered 5814 ½ and returned having successfully purchased
crack cocaine from a “black male on the porch.” The C.I. informed the officers
that he did not observe the black male coming out of or going into the
apartment to get the narcotics. This is referred to as a “dirty buy,” and “a
search warrant cannot be generated under these circumstances because there
is no proof the crack came out of the apartment.” After further investigation,
the officers identified a suspect named “Nash” as the seller. Williams continued
surveilling the apartment complex and noticed that the suspect, Nash, was
always in common areas of the complex; Williams concluded that Nash did not
normally sell his narcotics from inside an apartment where he presumably
kept the bulk of his narcotics. This was apparently common practice because



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                                  No. 16-20783
it made it especially difficult for police officers to recover evidence and arrest
dealers while in possession.
      On May 20, 2014, Williams and another officer returned to the complex
with the same C.I. The officers again maintained “a distant and rolling
surveillance,” which obstructed the officers’ view of the buy. The C.I. returned
with 0.19 grams of crack cocaine and told the officers that he or she observed
Nash come out of his apartment. The C.I. said that the address above the door
was 5-8-1-8. The officers also obtained information about the specific location
of the suspect’s apartment door. Lastly, Williams drew a diagram of the
apartment complex, and the C.I. indicated exactly where the suspect entered
the apartment. The C.I. indicated that the relevant building was in the far
southeast corner of the complex and that Nash used the door on the right, “as
far in the corner of the complex as you can go.” In his deposition, Williams
testified that he did not walk through the complex to verify the numerical
address himself because he did not want to alert anyone to their investigation.
Given that the residents were predominantly black, he was worried that, as a
white man, he would stand out.
      Based on the information, his experience, and prior dealings with this
same C.I., Williams prepared a probable cause affidavit and search warrant
for 5818 Hirsh Road, and a local judge signed it. The warrant stated that 5818
Hirsch Road was located “in the far southeast corner of the location,” and it
included a photo of the duplexes in the 5800 block of Hirsch. On May 24, 2014,
Williams and other officers executed the search warrant. According to
Williams’s affidavit submitted in support of his cross-motion for summary
judgment, when the officers approached the apartment described by the C.I.,
he noticed that the address was “5816” instead of “5818.” Williams decided that
the C.I. must have just misread the number and that, in his experience, this
mistake was generally unintentional and immaterial. Indeed, Williams also
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stated that the apartment’s location was accurately described by his “long-time
reliable and trustworthy C.I.”
       Before    entering,     the    officers    announced,      “POLICE       SEARCH
WARRANT!” and pounded on the outside of the burglar bars. The police pried
open the burglar bars, and “[a]lmost simultaneously, Ms. Thomas opened her
door and stepped back.” The officers immediately performed a “security sweep”
to ensure there were no threats to the officers’ safety; this sweep is not an
“actual search.” During the safety sweep, it became apparent that the
apartment was not being used to sell or store drugs. Williams asked Ms.
Thomas a few questions to determine whether it was possible someone else had
a key to her apartment and could be using it without her knowledge. Williams
also informed Ms. Thomas that they had a search warrant for her apartment
and that was why the officers were present; she replied that the officers could
“[g]o ahead and look.”
       When Ms. Thomas asked Williams who he was looking for, he informed
her they were looking for a suspect described as “a young black male[,] 18-20
years old, who likes to wear a red shirt and goes by the nickname of ‘Little
Black.’” Ms. Thomas’s eyes “lit up,” and she responded that she knew who
Williams was talking about. She informed Williams that “Little Black” used to
live at 5814 ½ Hirsch Road, but that he had just moved to the apartment next
door to hers, 5816 ½. Before exiting the Thomases’ apartment, Williams gave
Ms. Thomas his work phone number so that she could call him if she needed
anything or saw suspicious activity. 1
       A few days later, Williams spoke with the C.I. and showed the C.I. the
vantage point from which the Thomases’ door was visible. The C.I. realized he


       1Indeed, the next day Ms. Thomas called Williams to report a possible robbery; she
described the suspects and gave Williams information about the suspects’ car and its license
plate number.
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                                 No. 16-20783
did not see the Thomases’ door because “the brick wall that runs partially
between the two apartments blocked [the C.I.’s] view of Ms. Thomas’s door.”
The C.I. was genuinely remorseful and upset because of his or her
unintentional error.
      The Thomases brought this § 1983 suit in federal district court against
Williams and others, claiming that the defendants violated their Fourth
Amendment right to remain free from unreasonable searches and seizures. The
plaintiffs filed a motion for summary judgment against only Williams, and
Williams filed a cross-motion for summary judgment asserting qualified
immunity. The district court granted summary judgment in favor of Williams
on the basis of qualified immunity, dismissing only the claims against him
pursuant to Federal Rule of Civil Procedure 54(b). The Thomases moved for
reconsideration, and the district court denied the motion. The Thomases timely
appeal the grant of summary judgment and the denial of their motion for
reconsideration.
                                        I
      This court reviews “the district court’s summary judgment decision de
novo, using the same standard as the district court.” Roberts v. City of
Shreveport, 397 F.3d 287, 291 (5th Cir. 2005). Summary judgment is
appropriate if the record discloses “no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A dispute is genuine if the “evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The court must consider the evidence in the light most
favorable to the nonmoving party and draw all reasonable inferences in its
favor. See Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848,
856 (5th Cir. 2014).


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                                  No. 16-20783
      The qualified immunity doctrine “immunizes government officials from
damages suits unless their conduct has violated a clearly established right.”
Tolan v. Cotton, 134 S. Ct. 1861, 1864 (2014). “In resolving questions of
qualified immunity at summary judgment, courts engage in a two-pronged
inquiry.” Id. at 1865.
      The first asks whether the facts, taken in the light most favorable
      to the party asserting the injury, show the officer’s conduct
      violated a federal right. . . .
      The second prong of the qualified-immunity analysis asks whether
      the right in question was clearly established at the time of the
      violation. Governmental actors are shielded from liability for civil
      damages if their actions did not violate clearly established
      statutory or constitutional rights of which a reasonable person
      would have known. The salient question is whether the state of
      the law at the time of an incident provided fair warning to the
      defendants that their alleged conduct was unconstitutional.
Id. at 1865–66 (cleaned up). Notwithstanding the general principle that this
court must view the evidence in the light most favorable to the nonmoving
party, the plaintiffs still bear the burden to show that Williams is not entitled
to qualified immunity. Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015); Brown
v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
                                        II
      The Thomases first argue that Williams is liable under Franks v.
Delaware, 438 U.S. 154 (1978), because he knowingly made material
misrepresentations in his probable cause affidavit. In Franks, the Supreme
Court “established that an officer is liable for swearing to false information in
an affidavit in support of a search warrant, provided that: (1) the affiant knew
the information was false or [acted with] reckless disregard for the truth; and
(2) the warrant would not establish probable cause without the false
information.” Hart v. O’Brien, 127 F.3d 424, 442 (5th Cir. 1997) (citing Franks,


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                                  No. 16-20783
438 U.S. at 171). An officer who is merely negligent or who makes an innocent
mistake will not be held liable. Id.
      The relevant portion of Williams’s affidavit in support of a search
warrant provides:
      After developing a tactical plan the officers with the C.I. proceeded
      to 5818 Hirsch. Prior to doing so, your affiant checked the C.I. for
      any contraband, after none were found, supplied the C.I. with an
      amount of city buy money. The C.I. was then directed to the listed
      location to purchase an amount of Crack Cocaine. Your affiant
      observed the C.I. go to, and return directly from, the listed location.
      The C.I. upon returning, handed your affiant an amount of Crack
      Cocaine. The C.I. is a past user of Crack Cocaine and can readily
      identify it by sight. The C.I. advised your affiant that while the C.I.
      was at the residence, the C.I. purchased the Cocaine from the
      listed suspect. The C.I. was advised to come back anytime to
      purchase more Cocaine. Your affiant checked the C.I. for any
      contraband, after none were found, dismissed the C.I. and
      returned to the office. Your affiant later determined the purchased
      crack to test positive for cocaine content.
      The Thomases claim that Williams knowingly swore to false, material
information in his affidavit in support of the search warrant. They point to the
following statements in the affidavit: (1) the officers and the C.I. proceeded to
5818 Hirsch; (2) Williams observed the C.I. go to, and return directly from, the
listed location; and (3) the C.I. was at the residence. They contend that these
statements were false and that Williams knew as much because (1) 5818
Hirsch Road did not exist; (2) Williams did not observe his C.I. go to any
particular address or any particular door because his view was obstructed; and
(3) Williams knew that the C.I. did not enter any residence and was not in front
of any one particular address. The Thomases submit that these alleged
misrepresentations were material because without them the affidavit would be
facially insufficient to establish probable cause.



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                                       No. 16-20783
       In evaluating a qualified immunity defense, this court “considers only
the facts that were knowable to the defendant officers.” White v. Pauly, 137 S.
Ct. 548, 550 (2017). “Those items of evidence that emerge after the warrant is
issued have no bearing on whether or not a warrant was validly issued.”
Maryland v. Garrison, 480 U.S. 79, 85 (1987) The Thomases rely only on
observations that Williams made during the course of executing the warrant,
not facts Williams was actually aware of when he submitted his probable cause
affidavit to the judge. 2 Because the Thomases do not present any evidence that
Williams knew the statements were false or acted with reckless disregard for
the truth at the time he swore the affidavit, the district court properly held that
Williams was entitled to qualified immunity.
                                             III
       The Thomases argue that Williams violated the Fourth Amendment by
entering their home without a warrant. The mistaken execution of a valid
search warrant on the wrong premises does not automatically violate the
Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 396 (1989);
Garrison, 480 U.S. at 88. The validity of the execution “depends on whether
the officers’ failure to realize the [inaccuracy] of the warrant was objectively
understandable and reasonable.” Garrison, 480 U.S. at 88.
       In Maryland v. Garrison, police officers executed a search warrant for a
third-floor apartment only to discover after the search that the premises
contained two apartments instead of one. Garrison, 480 U.S. at 80. The
Supreme Court upheld the search on the basis that the officers’ mistake was
reasonable in light of the information available to them at the time of the


       2In its discussion of the Franks claim, the dissent does not address the legally-
permitted negligence, or that that Williams is protected for any mistaken reliance on the C.I.
Williams observed the C.I. go toward the apartment building and was informed that the C.I.
purchased narcotics from the apartment. This fails to show he knowingly swore to false
information to overcome qualified immunity.
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                                     No. 16-20783
search. Id. at 88-89. The Court “recognized the need to allow some latitude for
honest mistakes that are made by officers in the dangerous and difficult
process of making arrests and executing search warrants.” Id. at 87.
        Here, Williams obtained a warrant to search 5818 Hirsch Road, which
he described in the probable cause affidavit as “located in the far southeast
corner” of “[t]he duplexes located in the 5800 block of Hirsch.” Williams
executed the warrant at “the far right apartment described by the C.I.” He
admitted that he “recognized the difference in the address in the probable
cause affidavit and search warrant to that over the door of the subject
apartment.” As indicated in the “Investigative Report” prepared in response to
the Thomases claims, Williams told the Internal Affairs Division that the
differing address numbers “did raise a suspicion that something may be
wrong.” However, even though the address was not 5818 Hirsch Road,
Williams stated in his affidavit submitted in support of his motion for
summary judgment that he thought “[t]he apartment’s location . . . was
correctly and accurately described by the long-time reliable and trustworthy
C.I.”
        The Thomases thus presented evidence that Williams had a “suspicion
that something may be wrong” when he noticed the differing address
numbers. 3 But, the Thomases still failed to show that it was objectively
unreasonable under clearly established law for Williams to execute a search
warrant at their residence. Garrison, 480 U.S. at 88 (finding officers’ search
valid even when warrant was overly broad because the warrant was based on
objective facts available to officers). Williams relied on the C.I.’s description of



        3The Thomases also presented evidence that Williams concluded that 5816 Hirsch
Road was the wrong location after he questioned Ms. Thomas. But this evidence is not
relevant to whether Williams knew that 5816 Hirsch Road was the wrong location at the time
he entered the residence.
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                                       No. 16-20783
the location of the apartment in executing the warrant. “[W]e must judge the
constitutionality of [Williams’s] conduct in light of the information available to
[him] at the time [he] acted.” Garrison, 480 U.S. at 85. And the officers are
entitled to “some latitude for honest mistakes.” Id. at 87. Williams was neither
“plainly incompetent” nor “knowingly violat[ing] the law” when he executed
the warrant based on the locational description provided by a C.I. whom he
knew and thought was reliable. See Malley v. Briggs, 475 U.S. 335, 341 (1986);
Hunt v. Tomplait, 301 F. App’x 355, 359 (5th Cir. 2008) (“[L]aw enforcement
officers are generally granted qualified immunity if the evidence is undisputed
that they merely made an honest mistake when entering the incorrect
home.”). 4
       As Williams did not violate any clearly established law by executing a
search warrant at a residence that he thought was the location described in
the search warrant, the district court appropriately found that Williams’s
qualified immunity defense was applicable and he did not violate the
Thomases’ Fourth Amendment rights by entering their home without a
warrant. Even if some Fourth Amendment rights were violated, the rights
were not clearly established. The prevailing law does not instruct that
unintentionally      executing     a   search     warrant     at   the    wrong     location
automatically violates the Fourth Amendment and precludes an officer’s



       4 The dissent attacks this conclusion, urging that it fails to consider the evidence in
the light most favorable to the Thomases. Importantly, it never mentions the burden-shifting
in the qualified immunity context: plaintiffs must show that a defendant is not entitled to
qualified immunity. Trent, 776 F.3d at 376; Brown, 623 F.3d at 253.
        The dissent also would have this court place an unrealistic burden on police officers
that would essentially void well-established law that officers should not be liable for honest
mistakes. Its position would force officers to act only upon completely vetted information; it
is no secret that a main tenet of an officer’s job is to act and react, in the most reasonable
manner possible, while circumstances are rapidly unfolding in real time. To provide
otherwise would allow no leeway in an officer’s judgment—leeway explicitly provided for
under the qualified immunity doctrine—and would also place the public’s safety in jeopardy.
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                                 No. 16-20783
qualified immunity defense. Accordingly, Williams could not have been
“plainly incompetent” or “knowingly violat[ing] the law.” Malley, 475 U.S. at
341.
                                       IV
       Finally, the Thomases argue that Williams violated the Fourth
Amendment by remaining in their home for an unreasonable period of time.
The Supreme Court has “held that police officers do not necessarily violate the
Fourth Amendment when they mistakenly execute a search warrant on the
wrong address.” Simmons v. City of Paris, Tex., 378 F.3d 476, 479 (5th Cir.
2004) (citing Garrison, 480 U.S. at 88). The officers are, however, required to
discontinue the search immediately if they realize they have entered the wrong
residence. Id. at 479-80. Because it is a clearly established constitutional norm
that officers must immediately terminate a search upon realizing it is the
incorrect location, we must now determine “whether there is conflicting
evidence that this constitutional rule was violated.” Id.
       After entering the Thomases’ residence, the officers conducted a security
sweep of the apartment for “approximately 30 to 45 seconds.” Williams then
spoke with Ms. Thomas for “[p]robably ten minutes.” He “asked her if anybody
else lived there other than” Ms. Thomas and her son, John, “if anybody else
had access to her apartment,” and “those type of questions.” Williams testified
that he questioned Ms. Thomas “because [he] still believed [the officers] were
in the right location.”
       There is some evidence, which viewed in the light most favorable to the
Thomases, that indicates Williams remained at the Thomases’ residence after
realizing that it was the wrong apartment. Williams testified that he
“realize[d] that [he] might not have been in the right location” after “[m]aybe
five minutes.” He asserted in his incident report that “it became immediately


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                                      No. 16-20783
clear that [5816 Hirsch Road] was not the correct apartment” after he
questioned Ms. Thomas. (Emphasis added).
       However, the violation of the constitutional right hinges upon the officers
conducting a search even after realizing they are in the wrong location. See
Simmons, 378 F.3d at 479 (reiterating that officers are “required to discontinue
the search” upon realizing they are in the wrong residence). As the district
court found, it is undisputed that Williams first conducted a sweep, which led
him to decide to abort the search, and no such search was ever conducted. This
protective sweep does not constitute a search, so Williams merely entering the
Thomases’ residence does not constitute a “search.” See Maryland v. Buie, 494
U.S. 325, 335 (1990) (“[A] protective sweep, aimed at protecting the arresting
officers, [is] not a full search of the premises . . . . ”). Moreover, the record does
not reflect that Williams remained in the residence to perform an
unconstitutional search; he remained in the residence to explain to the
Thomases what had happened and to ask questions about the suspect. It was
not objectively unreasonable for Williams to conduct a protective sweep and
remain in the Thomases’ home to explain the circumstances under which the
officers inadvertently entered their home. Accordingly, because Williams did
not perform a search after realizing he was at the wrong location, Williams did
not violate any clearly established constitutional law. See Simmons, 378 F.3d
at 479-80. 5 The district court, again, properly granted Williams qualified
immunity on this issue.



       5  The dissent urges that Williams’s remaining in the residence violated clearly
established law under Simmons, 378 F.3d at 481. To overcome qualified immunity, the
Thomases must prove Williams did not mistakenly remain in the residence, but, rather,
violated a clearly established right through remaining in the apartment to explain his
presence. The facts here, however, do not support such a conclusion. Not only did Ms. Thomas
tell Williams he could look around her home, but she also does not contend that Williams
remained in her home after a request to leave. As such, Williams remained in the home with
tacit permission and only stayed long enough to explain his presence.
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                                 No. 16-20783
                                       V
      In their briefs on appeal, the Thomases also argue that there was no
evidence that the C.I. was reliable. They also argue that Williams’s decision
not to physically corroborate the C.I.’s observations because of the residential
complex’s racial makeup was “facially insufficient as a matter of constitutional
law.” Though these contentions seem to challenge the basis for probable cause,
the Thomases failed to raise these claims before the district court. Accordingly,
this court need not address these claims. See, e.g., In re Paige, 610 F.3d 865,
871 (5th Cir. 2010).
      For the forgoing reasons, the district court’s grant of summary judgment
in favor of Williams is AFFIRMED.




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                                 No. 16-20783
JAMES L. DENNIS, Circuit Judge, dissenting:
        In Tolan v. Cotton, 134 S. Ct. 1861 (2014), the Supreme Court took the
unusual step of granting certiorari simply to correct this court’s misapplication
of the summary judgment standard. The Supreme Court then unanimously
and summarily vacated this court’s affirmance of summary judgment to a
defendant-officer on the basis of qualified immunity. Tolan, 134 S. Ct. at 1868–
69.    The Court stated, “[T]he Fifth Circuit failed to view the evidence at
summary judgment in the light most favorable to [the nonmovant] with respect
to the central facts of this case” and “fail[ed] to credit evidence that
contradicted some of its key factual conclusions,” and thereby “improperly
‘weighed the evidence’ and resolved disputed issues in favor of the moving
party.” Id. at 1866.
        Statistically speaking, it is highly unlikely that the Supreme Court
would repeat this strong remedy in the instant case, but the majority appears
bent on providing a very good candidate for this course of action. Because the
majority opinion fails to view the evidence in the light most favorable to the
nonmovant, fails to credit evidence that contradicts its key factual conclusions,
and makes additional serious legal errors, I must respectfully dissent.
                                        I
        The Thomases assert that Officer Williams violated their rights under
the Fourth Amendment by searching their home without a valid warrant.
They advance three basic claims that Williams’s conduct violated their clearly
established rights and that he is therefore liable in an action under 28 U.S.C.
§ 1983. First, the Thomases assert that Williams knowingly swore to false
information in his affidavit in support of a search warrant. Second, they claim
that he executed the search warrant in their home even though he knew prior
to entering that he was at the wrong location. Third, the Thomases argue in
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                                  No. 16-20783
the alternative that, even if Williams did not suspect that he was in the wrong
location at the time he entered their residence, he unlawfully remained in their
residence after he realized that he was in the wrong place. As discussed below,
I would reverse the district court’s grant of summary judgment in favor of
Williams on all three claims.
A.     Williams’s Inclusion of Material Misrepresentations in His
       Warrant Affidavit
       As the majority opinion correctly sets out, it is clearly established that,
under Franks v. Delaware, 438 U.S. 154, 171 (1978), “an officer is liable for
swearing to false information in an affidavit in support of a search warrant,
provided that: (1) the affiant knew the information was false or [acted with]
reckless disregard for the truth; and (2) the warrant would not establish
probable cause without the false information.” Hart v. O’Brien, 127 F.3d 424,
442 (5th Cir. 1997) (citing Franks, 438 U.S. at 171).
       The Thomases claim that Williams knowingly swore to false, material
information in his affidavit in support of a search warrant. They point to the
following statements in the affidavit: (1) the officers and the C.I. “proceeded to
5818 Hirsch”; (2) Williams “observed the C.I. go to, and return directly from,
the listed location”; and (3) “the C.I. was at the residence.” They contend that
these statements were false and that Williams knew as much. They argue that
these alleged misrepresentations were material because without them the
affidavit would be facially insufficient to establish probable cause to search any
residence.
       The majority opinion responds to these arguments only by stating, “The
Thomases rely only on observations that Williams made during the course of
executing the warrant, not facts Williams was actually aware of when he
submitted his probable cause affidavit to the judge.” Op. at 8. That is patently

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                                       No. 16-20783
untrue. As set forth below, at least two of the three statements to which the
Thomases point in Williams’s affidavit were false, and record evidence
suggests that Williams knew that they were false at the time he submitted his
affidavit.
       First, the officers and the C.I. did not “proceed to 5818 Hirsch,” nor did
they proceed to any particular address. Instead, according to Williams’s own
account, the officers “took [the] C.I. to the complex in the 5000 block of Hirsch
[Road]” and the informant was “looking for suspect Nash in the common areas.”
Second, Williams did not observe the C.I. “go to, and return directly from, the
listed location,” i.e. 5818 Hirsch Road, nor did he observe the C.I. “go to, and
return directly from,” any particular address. Instead, according to Williams’s
own deposition testimony, he observed the C.I. in the “general immediate area”
of the building in which he thought unit 5818 was located, but in which he
knew that another address was also located. 1
       Williams’s misrepresentations were also material.                     Together, his
misstatements suggested both that the officers and the C.I. had planned to
make a purchase at the particular address Williams wished to search and that
Williams observed the C.I. going to, and returning directly from, that address.
Without these misstatements, the warrant affidavit states only that the C.I.
purchased drugs while outside of a “residence.” The majority opinion itself




       1  The majority opinion responds that “Williams observed the C.I. go toward the
apartment building and was informed that the C.I. purchased narcotics from the apartment”
and that “[t]his fails to show that he knowingly swore to false information.” Op. at 8 n.2. But
these observations do not bear upon Williams’s misrepresentations—that the officers and C.I.
intentionally targeted the listed apartment and that he saw the C.I. “go to, and return
directly from,” that apartment—and the majority opinion does not endeavor to explain how
they might affect the analysis.
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                                    No. 16-20783
recognizes that such facts would constitute a “dirty buy” that would not give
rise to probable cause. Op. at 2.
       The foregoing establishes, at the very least, a genuine dispute as to
whether misstatements in Williams’s affidavit violated clearly established law
under Franks and Hart. See Franks, 438 U.S. at 171; Hart, 127 F.3d at 442.
The majority opinion avoids this conclusion only by ignoring both the evidence
in the record and the Thomases’ arguments. I would reverse the district court’s
grant of summary judgment for Williams on this claim.
B.     Williams’s Initial Entry into the Thomases’ Residence
       The Thomases argue that Williams violated the Fourth Amendment by
conducting a search of their home without a valid warrant. They emphasize
that the warrant Williams obtained authorized the search of 5818 Hirsch Road,
that Williams knew, before executing the search, that the address he was about
to enter was 5816 Hirsch Road, and that he, at the very least, suspected that
something was wrong. The majority opinion asserts that Williams merely
relied on the C.I.’s description of the location of the relevant apartment and
therefore simply made an “honest mistake.” Here, too, the majority opinion
reaches this conclusion only by ignoring record evidence and improperly
viewing the evidence that it does consider in the light most favorable to the
movant.
       The Supreme Court has clearly established that officers must terminate
a search as soon as they are on notice of the risk that they are in the wrong
location. In Maryland v. Garrison, 480 U.S. 79, 80 (1987), officers had a
warrant to search the third floor premises. The officers did not know that the
third floor had two apartments until after they began their search, by which
time they had already discovered contraband in the erroneously-searched
apartment.    Id.     The Court determined that the officers made an honest
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                                    No. 16-20783
mistake and that the search of the wrong apartment was therefore valid. See
id. at 86–88. In so concluding, the Court stated, “[A]s the officers recognized,
they were required to discontinue the search of respondent’s apartment as soon
as they . . . were put on notice of the risk that they might be in a unit
erroneously included within the terms of the warrant.” Id. at 87 (emphasis
added); see also Sampson v. Reg’l Controlled Substance Apprehension Program,
No. 94-40525, 1995 WL 84186 at *3 (5th Cir. Feb. 13, 1995) (unpublished)
(referring to this statement as “the rule of Garrison”). 2
      The rule established in Garrison applies to specific factual circumstances
and provides every reasonable officer with fair notice of what they may not
do—if they are on notice of the risk that they might search a location
erroneously designated by the warrant, they may not conduct the search. This
court has applied this rule as clearly established law, holding that officers were
not entitled to qualified immunity because they did not discontinue their
search despite being “on notice of the risk that they might search the wrong
residence.” Sampson, 1995 WL 84186 at *3.
      Here, there is evidence in the record suggesting that Williams was not
only on notice of the risk that he was about to search the wrong residence but
that he also knew that the officers had the wrong apartment before entering it.
In his original incident report, Williams stated that, after the officers pried
open the burglar bars, they waited for Ms. Thomas to open the door and at that
time noticed the discrepancy in the address. Williams then stated in his report:
      Taking this into consideration as Mrs. Thomas opened the door I
      questioned her about who was in the apartment currently and who
      resided at the apartment. It became immediately clear that this



      2 Under Fifth Circuit Rule 47.5.3, “[u]npublished opinions issued before January 1,
1996, are precedent.”
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                                      No. 16-20783
       was not the correct apartment and the warrant was aborted and
       not executed.
(Emphasis added). Williams’s original, incident-report version of the events is
supported by the statement of Officer Gregory Green to the Internal Affairs
Division. Green stated: “After the burglar bars were open, Ms. Thomas opened
the front door of the residence. I do not recall what Officer Williams said, but
he gave some indication that we were at the wrong location.”
       No one can both view this evidence in the light most favorable to the
Thomases and hold, as the majority opinion does, that there is no genuine
dispute as to whether Williams knew that the officers were in the wrong
location before he entered the Thomases’ apartment. And so, the majority
opinion just ignores this evidence and does not address it as it relates to this
claim. 3
       Moreover, as previously discussed, Williams’s conduct would have
violated the rule that was clearly established in Garrison and Sampson, even
if he only suspected that the Thomases’ residence was the wrong location
before he entered it. As the majority opinion acknowledges, Williams told the
Internal Affairs Division that the differing address numbers “did raise a
suspicion that something may be wrong.”                But the majority opinion still
maintains that his conduct did not violate clearly established law, despite the
clear instruction of Fifth Circuit and Supreme Court precedent that police may


       3 The majority opinion faults this dissent for not mentioning “the burden-shifting in
the qualified-immunity context,” pursuant to which “plaintiffs must show that a defendant
is not entitled to qualified immunity.” Op. at 10 n.4. It is, of course, the Thomases’ burden
to show that Williams’s conduct violated their clearly established rights. They have carried
their burden by providing the opposing summary-judgment evidence discussed above, which
the majority opinion ignores. The majority opinion’s invocation of “burden-shifting” as if it
modifies the well-established rule that “courts may not resolve genuine disputes of fact in
favor of the party seeking summary judgment,” Tolan, 134 S. Ct. at 1866, is emblematic of
the majority opinion’s misapprehension of the summary judgment standard.
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                                  No. 16-20783
not search a location if they are on notice of the risk that they are in the wrong
location.
        As previously discussed, the summary judgment evidence in this case
suggests that Williams was not only on notice of the risk that he was about to
enter the wrong apartment, but that he also affirmatively knew that to be the
case.     Such conduct indisputably violates the rules that were clearly
established in Garrison and Sampson. I would therefore reverse the district
court’s grant of summary judgment for Williams as to this claim.
C.      Williams’s Remaining in the Residence
        “Qualified immunity does not provide a safe harbor for police to remain
in a residence after they are aware that they have entered the wrong residence
by mistake.” Simmons v. City of Paris, 378 F.3d 476, 481 (5th Cir. 2004). “A
decision by law enforcement officers to remain in a residence after they realize
they are in the wrong house crosses the line between a reasonable mistake and
affirmative misconduct that traditionally sets the boundaries of qualified
immunity.” Id.
        The Thomases argue that, even if Williams did not suspect that he was
in the wrong location at the time he entered their residence, he violated their
clearly established Fourth Amendment rights by remaining in the apartment
after he realized that he was in the wrong residence. They complain that,
despite Williams’s admission that he only spent one minute conducting a
protective sweep and that it only took him five minutes to determine that he
was in the wrong house, he nonetheless remained in their home for several
more minutes, during which he explained his entry to them, questioned them,
and told them that someone else could have a key to their home.
        Williams does not dispute that he remained in the residence and
continued to speak with and question Ms. Thomas after he determined that he
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                                      No. 16-20783
was in the wrong location. At his deposition, he stated that it took him “maybe
five minutes” to realize that he was in the wrong location—during this time he
conducted a one-minute “sweep” of the residence and began talking to Ms.
Thomas. Williams also stated that he spoke to Ms. Thomas for approximately
ten minutes. Thus, Williams’s deposition testimony suggests that he remained
in the residence for approximately six minutes after he realized that he was in
the wrong location. Importantly, Williams does not contend in his brief on
appeal that he had the Thomases’ consent to remain in their residence. 4
       Considering the evidence in the light most favorable to the Thomases,
Williams’s conduct violated their right not to have police remain in their home
after determining that it was not the right location. This right was clearly
established by this court’s holding in Simmons, 378 F.3d at 481, that police
may not “remain in a residence” after they realize that they are in the wrong
home.
       The majority opinion suggests that an officer does not violate the Fourth
Amendment by remaining in a home after realizing that he is in the wrong
place unless he continues to actively “search” the home. Op. at 11–12. But, in
announcing the governing legal rule, the Simmons court stated, twice, that
police may not “remain in a residence” after they realize that they are in the



        4  William stated in an affidavit in support of his motion for summary judgment that
Ms. Thomas told the officers they could “[g]o ahead and look.” The majority opinion suggests
that this statement, along with the fact the Ms. Thomas did not affirmatively ask Williams
to leave her home, constituted “tacit permission” for him to remain in the residence. Op. at
13 n.5. However, the majority opinion neglects to note that Ms. Thomas’s statement to
Williams was in response to his assertion that the officers had a warrant to search her
apartment and that she, unlike Williams, was not aware that the officers had entered the
wrong residence. Understandably, then, Williams does not contend that Ms. Thomas
consented to his continued presence in her home. See United States v. Lopez, 911 F.2d 1006,
1010 (5th Cir. 1990) (“[C]onsent must be given voluntarily and not simply in acquiescence to
a claim of lawful authority”).
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                                        No. 16-20783
wrong location. 378 F.3d at 481 (emphasis added). A physical intrusion into
a person’s home is a search under the Fourth Amendment. Florida v. Jardines,
569 U.S. 1, 5 (2013). That physical intrusion does not end merely because the
officers are no longer actively searching the home. 5
       This court in Simmons clearly established precisely what it said: that
police may not “remain in a residence” after they realize that they are in the
wrong location. 378 F.3d at 481. There is therefore, at the very least, a genuine
dispute as to whether Williams’s decision to remain in the Thomases’ residence
to question them after he realized that he was in the wrong place violated
clearly established law under Simmons. Accordingly, I would reverse the
district court’s summary judgment dismissal of this claim.
                                               II
       I close where I began: in affirming the district court’s summary judgment
dismissal of the Thomases’ claims, the majority opinion fails to view the
evidence in the light most favorable to the nonmovants with respect to the
central facts of this case, fails to credit evidence that contradicts its key factual
conclusions, improperly weighs the evidence and resolves disputed issues in
favor of the moving party, and makes serious legal errors regarding the scope
of the Fourth Amendment. I respectfully dissent.


       5  The majority opinion’s assertion that “a protective sweep does not constitute a
search,” Op. at 11, is utterly baseless, and it is most unfortunate that an opinion of this court
would include such a statement. In support of the proposition that a “sweep” is not a search
for purposes of the Fourth Amendment, the majority opinion misrepresents language from
Maryland v. Buie, 494 U.S. 325, 335 (1990). In Buie, the Supreme Court cautioned that a
justifiable warrantless sweep of a home incident to arrest “is nevertheless not a full search
of the premises, but may extend only to a cursory inspection of those spaces where a person
may be found.” Id. at 335. However, in authorizing warrantless security sweeps incident to
arrest under certain circumstances, the Court was very clear that such a sweep does in fact
constitute a “search” for purposes of the Fourth Amendment. See id. at 336 (“The type of
search we authorize today is far removed from the ‘top-to-bottom’ search involved in Chimel.”
(emphasis added)).
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