     Case: 16-20702        Document: 00514336811          Page: 1     Date Filed: 02/05/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                            United States Court of Appeals
                                        No. 16-20702                                 Fifth Circuit

                                                                                   FILED
                                                                             February 5, 2018
RICHARD WINFREY, JR.,                                                         Lyle W. Cayce
                                                                                   Clerk
                Plaintiff - Appellant

v.

LACY ROGERS, Former San Jacinto County Sheriff; LENARD JOHNSON,
Former San Jacinto County Sheriff’s Department Deputy,

                Defendants - Appellees




                     Appeal from the United States District Court
                          for the Southern District of Texas


Before JOLLY and ELROD, Circuit Judges, and RODRIGUEZ, District
Judge.*
E. GRADY JOLLY, Circuit Judge:
      Richard Winfrey Jr. (“Junior”) was arrested and charged with murder
after a botched investigation and various alleged violations of Junior’s Fourth
Amendment rights.           The State tried him on murder charges.                      The jury
acquitted him in fifteen minutes, but only after he had served some 16 months
in prison. He brought this 42 U.S.C. § 1983 action against various officers of
San Jacinto County, Texas. After some seven years of litigation—including



      *   District Judge of the Western District of Texas, sitting by designation.
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                                 No. 16-20702
one appearance before this Court, see Winfrey v. San Jacinto Cty., 481 F. App’x
969 (5th Cir. 2012) (Winfrey I)—defendants have come and gone, leaving only
the defendant Deputy Sheriff Lenard Johnson to answer for Junior’s charges
of constitutional violations. Junior claims that Deputy Johnson violated his
rights by signing an arrest-warrant affidavit that lacked probable cause by
omitting and misstating key facts. This unconstitutional warrant, he alleged,
resulted in his unlawful arrest and imprisonment.          Johnson moved for
summary judgment on the basis of qualified immunity. The district court
granted Johnson’s motion, and Junior appeals.
      We VACATE the district court’s judgment and REMAND for trial
essentially on the factual issue of whether Johnson acted recklessly,
knowingly, or intentionally by omitting and misrepresenting material facts in
his affidavit when seeking an arrest warrant for Junior. Because this litigation
has continued for over seven years, including two appeals before this Court, we
emphasize that this case must go to trial without further delay.
                                       I.
      Murray Wayne Burr was found murdered in his home in San Jacinto
County, Texas, in August 2004. The San Jacinto County Sheriff’s Office—
including Sheriff Lacy Rogers and Deputy Johnson—and the Texas Rangers
focused their investigation on three suspects: then-seventeen-year-old Junior;
his then-sixteen-year-old sister, Megan Winfrey; and their father, Richard
Winfrey, Sr. (“Senior”).
      Several weeks after the murder, the investigative blunders began. Texas
Ranger Grover Huff requested that Keith Pikett, a deputy from a nearby law
enforcement agency, assist the investigation by running “scent lineups.” This
dubious adventure required Pikett to call upon two of his pet bloodhounds and
to acquire scents from four suspects—Megan; Junior; Megan’s boyfriend, Chris
Hammond; and Hammond’s friend, Adam Szarf. Huff, then, following the
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procedure that Pikett established, gathered scents from the suspects—by
asking each person to rub a piece of gauze on his or her skin and put that gauze
in a paper bag—and from the victim—by rubbing gauze against Burr’s clothes.
Pikett, rather “unscientifically,” also carried around in a duffel bag filler scents
which he gathered from prisoners at the Fort Bend County Jail. He placed this
bag in his SUV, in which his dogs rode daily.
      Pikett proceeded to conduct a “drop-trail” exercise with his dogs. That
exercise was conducted at the crime scene where Huff provided the hounds
with a scent sample. Huff thought he had provided the scent for Junior, but
he mistakenly scented the dogs for Hammond instead. Huff notified Pikett
and the other investigators about the mistake after the test, and both Huff and
Pikett mentioned it in their formal police reports.
      Meanwhile, Junior and Megan allowed investigators to collect their DNA
to compare with DNA found in blood discovered at Burr’s home. The laboratory
reported that the blood did not belong to either. The investigators also wanted
to compare Megan’s hair to hair found at the murder scene. Sheriff Rogers
wrote a search-warrant affidavit to obtain Megan’s hair, but he failed to
mention the lab report showing her blood was not at the scene. He also
misstated that the drop-trail was conducted using Junior’s scent pad instead
of Hammond’s. Further, he did not acknowledge the incidental fact that all
forensic evidence from the crime scene excluded the Winfreys.              Perhaps
recognizing the fumbles in the process, the investigation was put on hold.
      After stalling for a year, the investigation restarted when a jailhouse
informant, Campbell, came forward with a story incriminating the Winfreys in
Burr’s murder. Campbell said that while he and Senior were in the same jail
cell, Senior confessed to murdering Burr. Johnson visited and interviewed
Campbell. There, Campbell told him: (1) Megan and Junior helped Senior get
into Burr’s house, (2) Senior severely beat up Burr and cut his neck, (3) Senior
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                                No. 16-20702
cut off Burr’s genitals and stuck them in Burr’s mouth, (4) Junior and Megan
were in Burr’s house the whole time, and (5) Senior had wanted to kill Burr
because Burr’s neighbor told Senior that Burr touched one of Senior’s kids.
Johnson wrote a report of Campbell’s story and noted that the details of the
injuries were generally accurate in relation to the physical evidence, except
that Burr’s genitals were not cut off and put in his mouth.
      Johnson visited Campbell a month later, taking Rogers with him.
Campbell’s story changed. First, Campbell added that Burr was killed in his
living room, which Johnson said was not known to the public at that time.
Second, he said that Senior stabbed and shot Burr, though there was no
evidence that Burr was shot. Third, Campbell now claimed that one of Senior’s
cousins, not Junior or Megan, was the accomplice to the murder. Finally,
Campbell said that Senior confessed to stealing a pistol and long gun from
Burr’s house, and he put these guns in a nearby “hollow.” Investigators found
a hollow matching the description, but no weapons were there. Johnson said
the public did not know about the stolen weapons.
      Pikett, undeterred by earlier failures, conducted a second scent lineup
using Senior’s scent. The bloodhounds alerted each time on Senior’s scent.
      Deputy Sheriff Johnson signed two affidavits to obtain search warrants
to obtain Junior’s and Senior’s hair from each of them to compare with the hair
found in Burr’s home.     Each affidavit excluded any reference to: (1) the
inconsistencies between Campbell’s two interviews, (2) the inconsistencies
between Campbell’s statements and the other evidence, (3) Junior’s and
Megan’s blood not being found at the scene, and (4) the hair found at the scene
not matching Burr or Megan. The judge issued both warrants to Johnson, but
the hair obtained from Burr’s home did not match the hair of either Junior or
Senior.


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        Nevertheless, Johnson signed affidavits for arrest warrants for Megan,
Junior, and Senior. 1 The arrest-warrant affidavits also excluded the same
inconsistencies as the search-warrant affidavits, and additionally omitted the
fact that the hairs at the crime scene did not belong either to the Winfreys or
Burr.
        Junior was thus charged with capital murder and sat in jail for two years
before his case was tried in June 2009. On June 12, he was found not guilty
after thirteen minutes of jury deliberation.
        On May 26, 2010, Junior filed this § 1983 lawsuit against every police
investigator involved in his murder case.                 At this point in this lengthy
litigation, only his claim against Deputy Sheriff Johnson remains. Junior says
that Johnson violated his constitutional rights by using false information to
secure arrest and search warrants and by failing to disclose exculpatory
evidence.
        This case has visited us before. See generally Winfrey I, 481 F. App’x
969. There, we vacated the district court’s grant of summary judgment in favor
of Johnson and remanded for additional discovery on whether Johnson violated
the Fourth Amendment by acting with reckless disregard for the truth, as
opposed to merely carelessness or negligence, when he included a material




        1 The record contains only the arrest-warrant affidavits for Senior and Megan.
Johnson argues that the arrest-warrant affidavit for Senior cannot be used as a replacement
for Junior’s arrest affidavit, which is not in the record due to Junior’s intentional spoliation.
But this issue was already resolved in Winfrey I, 481 F. App’x 969. There, we concluded that
we would look to the affidavits for Megan and Senior because: (1) they “suggest that . . . the
same affidavit language [was used] for all three Winfreys”; (2) “investigation reports indicate
that warrants were obtained for [Junior] on the same day Johnson executed an arrest-
warrant affidavit for Megan”; and (3) “Rogers indicated that the drop-trail evidence and
Campbell’s ‘jailhouse snitching’ established probable cause to obtain ‘a search warrant for
the hairs of my suspects.’” Id. at 978. Because of the law-of-the-case doctrine, we find that
the prior panel’s decision “should continue to govern” this case. See Musacchio v. United
States, 136 S. Ct. 709, 716 (2016) (quoting Pepper v. United States, 562 U.S. 476, 506 (2011)).
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falsehood and omitted material information in his warrant affidavits. Id. at
979–81.
      On remand, the district court held a hearing relating to multiple Daubert
motions.   Junior contends that, at that hearing, the district court barred
Junior’s expert, David Kunkle, from testifying at trial.
      After discovery concluded, Johnson again moved for summary judgment.
First, Johnson argued that Junior’s claim against Johnson was time-barred.
But the district court ruled that it was not barred because the statute of
limitations period began when Junior was acquitted, and he filed his lawsuit
within a year of his acquittal. Second, the court examined whether Johnson
violated Junior’s Fourth Amendment rights by recklessly omitting and
misstating certain facts in his search- and arrest-warrant affidavits. The court
found that one omission was not reckless: excluding Campbell’s statements
that were inconsistent with each other. But it found that others were reckless:
excluding Campbell’s statements that were contradicted by the physical
evidence and omitting the DNA and hair evidence that did not link the
Winfreys to the scene, which could show that someone other than the Winfreys
had to have been present in Burr’s house. The court did not say whether
Johnson’s inclusion of the statement that “the drop-trail from the crime scene
to the Winfrey house used [Junior]’s scent” was reckless. Third, the court
decided that Johnson nevertheless was protected by qualified immunity, even
though he violated Junior’s rights, because a reasonable magistrate, reviewing
a corrected affidavit, would have found probable cause to search and arrest
Junior.
      Junior timely appealed. He contends: (1) his arrest-warrant claim is not
time-barred; (2) Johnson is not entitled to qualified immunity; (3) the district
court abused its discretion in excluding his expert; and (4) if the Court reverses
and remands, it should remand this matter to a different judge.
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                                No. 16-20702
                                     II.
                                     A.
     The first issue we address is whether Junior has a valid Fourth
Amendment claim. We conclude that he does.
     Junior’s complaint never alleges in magic words that Johnson violated
his rights under the Fourth Amendment. Nevertheless, although the parties
have argued this case in a confusing manner from the start, both sides have
argued, at times, that the case involves a Fourth Amendment federal
malicious-prosecution claim; at other times, they have argued whether the
claim involves a Fourteenth Amendment due process claim. In any event, as
the case is presented before us now, there is a proper Fourth Amendment claim
because of the law-of-the-case doctrine. In Winfrey I, this Court decided that
this case presented a Fourth Amendment claim, concluding that Johnson was
not entitled to qualified immunity on summary judgment because Junior
alleged that Johnson violated the Fourth Amendment by signing objectively
unreasonable arrest-warrant affidavits. 481 F. App’x at 979. Additionally, on
remand, both sides argued the Fourth Amendment malicious-prosecution
issue, and the district court decided the case as a Fourth Amendment case.
      “The law-of-the-case doctrine generally provides that ‘when a court
decides upon a rule of law, that decision should continue to govern the same
issues in subsequent stages in the same case.’” Musacchio, 136 S. Ct. at 716
(quoting Pepper, 562 U.S. at 506). The doctrine is meant to promote judicial
efficiency so that appellate courts do not continually have to reexamine
subsequent proceedings in the same case. See Chapman v. Nat’l Aeronautics
& Space Admin., 736 F.2d 238, 241 (5th Cir. 1984). It forecloses reexamination
on a subsequent appeal. Pegues v. Morehouse Par. Sch. Bd., 706 F.2d 735, 738
(5th Cir. 1983). But the law-of-the-case doctrine does not apply when “(1) the
evidence on a subsequent trial was substantially different, (2) controlling
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authority has since made a contrary decision of the law applicable to such
cases, or (3) the decision was clearly erroneous and would work manifest
injustice.” Lyons v. Fisher, 888 F.2d 1071, 1075 (5th Cir. 1989). Here, none of
the exceptions apply, because the relevant precedent was decided before the
suit was filed in 2011, the evidence has remained the same throughout, and
the decision was not clearly erroneous and did not risk manifest injustice.
      Furthermore, we agree that a Fourth Amendment claim is cognizable
under the facts here.      This Court has held that although there is no
“freestanding constitutional right to be free from malicious prosecution,” “[t]he
initiation of criminal charges without probable cause may set in force events
that run afoul of explicit constitutional protection—the Fourth Amendment if
the accused is seized and arrested, for example.” Castellano v. Fragozo, 352
F.3d 939, 945, 953 (5th Cir. 2003) (en banc). In Albright v. Oliver, 510 U.S. 266
(1998), a plurality of the Supreme Court said that malicious-prosecution claims
must be based on the Fourth Amendment, rather than on “the more
generalized notion of ‘substantive due process,’” because the Fourth
Amendment is the explicit textual source against this type of government
behavior. Id. at 273 (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).
And recently, in Manuel v. City of Joliet, 137 S. Ct. 911 (2017), the Supreme
Court considered whether a plaintiff had stated a Fourth Amendment claim
when he was arrested and charged with unlawful possession of a controlled
substance based upon false reports written by a police officer and an evidence
technician. Id. at 915. There, the Court said the plaintiff’s “claim fits the
Fourth Amendment, and the Fourth Amendment fits [the plaintiff’s] claim, as
hand in glove.” Id. at 917. And it held “that the Fourth Amendment governs
a claim for unlawful pretrial detention even beyond the start of legal process.”
Id. at 920.


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      These cases fully support a finding that the Fourth Amendment is the
appropriate constitutional basis for Junior’s claim that he was wrongfully
arrested due to the knowing or reckless misstatements and omissions in
Johnson’s affidavits. We, therefore, hold that a Fourth Amendment claim is
presented, and we will decide the remainder of the issues based upon this legal
conclusion.
                                       B.
      Johnson argues that Junior’s claim is time-barred. Junior was arrested
on February 8, 2007.      His prosecution began in June 2009, and he was
acquitted on June 12. He filed this suit on May 26, 2010.
      Section 1983 provides a federal cause of action, but federal courts look to
state’s statute of limitations for personal-injury torts to decide when § 1983
claims toll. See Wallace v. Kato, 549 U.S. 384, 387 (2007); see also Piotrowski
v. City of Hou., 237 F.3d 567, 576 (5th Cir. 2001) (“The statute of limitations
for a suit brought under § 1983 is determined by the general statute of
limitations governing personal injuries in the forum state.”). “In Texas, the
applicable limitations period is two years.” Gartrell v. Gaylor, 981 F.2d 254,
256 (5th Cir. 1993); see Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (“[A]
person must bring suit . . . not later than two years after the day the cause of
action accrues.”). But “the accrual date of a § 1983 cause of action is a question
of federal law that is not resolved by reference to state law.” Wallace, 549 U.S.
at 388. “In defining the contours and prerequisites of a § 1983 claim, including
its rule of accrual, courts are to look first to the common law of torts.” Manuel,
137 S. Ct. at 920.
      The accrual date depends on whether Junior’s claim more closely
resembles one for false imprisonment or one for malicious prosecution. See id.
at 921–22 (remanding the case to the Seventh Circuit to consider whether the
claim was more like a false imprisonment or a malicious prosecution). A false-
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                                 No. 16-20702
imprisonment claim is based upon “detention without legal process.” Wallace,
549 U.S. at 389. It “begins to run at the time the claimant becomes detained
pursuant to legal process.” Id. at 397. A malicious-prosecution claim is based
upon “detention accompanied . . . by wrongful institution of legal process.” Id.
at 390. It “does not accrue until the prosecution ends in the plaintiff’s favor.”
Castellano, 352 F.3d at 953.
      Johnson urges us to find that this case fits within Wallace v. Kato. There,
the Supreme Court found that the plaintiff’s unlawful warrantless-arrest
Fourth Amendment claim resembled a false-imprisonment claim, because the
constitutional violation occurred when the plaintiff was arrested without a
warrant instead of when the conviction was later set aside. 549 U.S. at 397.
Law enforcement officers transported the fifteen-year-old plaintiff to a police
station—without a warrant or probable cause to arrest him—and interrogated
him into the early morning. Id. at 386, 389. So, the Court found that the
plaintiff’s claim accrued when he was initially arrested. Id. at 397.
      Here, we find that Junior’s claim is more like the tort of malicious
prosecution, because Junior was arrested through the wrongful institution of
legal process: an arrest pursuant to a warrant, issued through the normal legal
process, that is alleged to contain numerous material omissions and
misstatements. Junior thus alleges a wrongful institution of legal process—an
unlawful arrest pursuant to a warrant—instead of a detention with no legal
process. Because Junior’s claim suggests malicious prosecution rather than
false imprisonment, his claim accrued when his criminal proceedings ended in
his favor on June 12, 2009.      He filed his suit well within the two-year
limitations period on May 26, 2010. So Junior’s claim survives the time bar.




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                                   No. 16-20702
                                         III.
                                         A.
      Even if the claim is not time-barred, Johnson argues, this case must not
proceed further because he is entitled to qualified immunity.
      This court reviews the district court’s grant of summary judgment de
novo. Brewer v. Hayne, 860 F.3d 819, 822 (5th Cir. 2017). Summary judgment
is appropriate when the movant is entitled to judgment as a matter of law and
there is no genuine dispute of material fact. Id. We must draw all reasonable
inferences in the non-movant’s favor and view the evidence in the light most
favorable to the non-movant. Id. “To survive summary judgment, the non-
movant must supply evidence ‘such that a reasonable jury could return a
verdict for the nonmoving party.’” Id. (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
      When resolving qualified immunity on summary judgment, courts
determine (1) whether the facts, taken in the light most favorable to the party
asserting the injury, show the officer violated a federal right and (2) whether
the right was “clearly established” when the violation occurred.            Tolan v.
Cotton, 134 S.Ct. 1861, 1865–66 (2014). “A Government official’s conduct
violates clearly established law when, at the time of the challenged conduct,
‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official
would have understood that what he is doing violates that right.’” Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011) (alterations in original) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). The Court does not need “a case directly
on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.” Id. The Court uses a standard of
“objective reasonableness” to define “the qualified immunity accorded an
officer whose request for a warrant allegedly caused an unconstitutional
arrest.”   Malley v. Briggs, 475 U.S. 335, 344 (1986).         Qualified immunity
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“ensure[s] that before they are subjected to suit, officers are on notice their
conduct is unlawful.”     Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting
Saucier v. Katz, 533 U.S. 194, 206 (2001)). And it “protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Mullenix v. Luna, 136
S.Ct. 305, 308 (2015) (quoting Malley, 475 U.S. at 341).
      Clearly established law is not determined “at a high level of generality.”
Ashcroft, 563 U.S. at 742. Instead “[t]he dispositive question is ‘whether the
violative nature of particular conduct is clearly established.’” Mullenix, 136
S.Ct. at 308 (quoting Ashcroft, 563 U.S. at 742). The inquiry must look at the
specific context of the case. Id.
      Here, the clearly established constitutional right asserted by Junior is to
be free from police arrest without a good faith showing of probable cause. Since
Franks v. Delaware, 438 U.S. 154 (1978), it has been clearly established that a
defendant’s Fourth Amendment rights are violated if (1) the affiant, in support
of the warrant, includes “a false statement knowingly and intentionally, or
with reckless disregard for the truth” and (2) “the allegedly false statement is
necessary to the finding of probable cause.” Id. at 155–56. In Franks, the
Supreme Court observed that the warrant requirement is meant “to allow the
magistrate to make an independent evaluation of the matter.” Id. at 165. It
requires affiants to “set forth particular facts and circumstances underlying
the existence of probable cause,” including those that concern the reliability of
the information and the credibility of the source to avoid “deliberately or
reckless false statement[s].” Id.
      Still, “negligence alone will not defeat qualified immunity.” Brewer, 860
F.3d at 825. “[A] proven misstatement can vitiate an affidavit only if it is
established that the misstatement was the product ‘of deliberate falsehood or
of reckless disregard for the truth.’” United States v. Martin, 615 F.2d 318, 329
(5th Cir. 1980) (quoting Franks, 438 U.S. at 171). Recklessness requires proof
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that the defendant “‘in fact entertained serious doubts as to the truth’ of the
statement.” Hart v. O’Brien, 127 F.3d 424, 449 (5th Cir. 1997) (quoting St.
Amant v. Thompson, 390 U.S. 727, 731 (1968)), abrogation on other grounds
recognized by Spivey v. Robertson, 197 F.3d 772, 775 (5th Cir. 1999).
        Here, we conclude that Junior alleges a clearly established constitutional
violation. Under the first prong of Franks, Junior must present evidence that
Johnson, through material omissions or otherwise, made “a false statement
knowingly and intentionally, or with reckless disregard for the truth.” 438
U.S. at 155. Junior provides evidence that Johnson made false statements in
his affidavit by (1) excluding Campbell’s statements that were contradicted by
the physical evidence; (2) excluding the fact that the DNA and hair evidence
did not link the Winfreys to the scene; (3) misstating that Pikett’s drop-trail
from Burr’s house to the Winfrey house used Junior’s scent, when the drop-
trail   actually   used   Hammond’s     scent;    and   (4) excluding   Campbell’s
inconsistencies between his statements, that is, between Campbell’s first
statement—which was related in the affidavit—that said that Megan and
Junior helped Senior to murder Burr and Campbell’s inconsistent later
statement that Senior’s cousin was the accomplice. We find that this showing
is also sufficient to demonstrate that there is an issue of material fact as to
whether Johnson acted intentionally, knowingly, or recklessly, because Junior
alleges that Johnson either knew or should have known that these material
omissions and false statements could lead to an arrest of Junior without
probable cause. In short, the evidence presented is sufficient to support a
finding that his conduct was unreasonable in the light of the well-established
principle requiring probable cause for the issuance of an arrest warrant.
        Yet, we must proceed further to the second prong of Franks in order to
resolve whether “the allegedly false statement is necessary to the finding of
probable cause,” as required by the Franks analysis. 438 U.S. at 156. To
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                                  No. 16-20702
determine whether the false statement was necessary for this finding, Franks
requires us to consider the faulty affidavit as if those errors and omissions were
removed.     We then must examine the “corrected affidavit” and determine
whether probable cause for the issuance of the warrant survives the deleted
false statements and material omissions. See Franks, 438 U.S. at 156 (saying
that courts must excise false statements); United States v. Bankston, 182 F.3d
296, 305–06 (5th Cir. 1999) (applying Franks to omissions and using a
corrected affidavit that “contain[ed] the allegedly exculpatory conversation” to
determine whether that affidavit would establish probable cause to authorize
electronic surveillance), overruled on other grounds by Cleveland v. United
States, 531 U.S. 12 (2000). The warrant will be valid only if the corrected
affidavit establishes probable cause for Junior’s arrest.
        This Court reviews the district court’s probable-cause determination de
novo.    United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005).
Probable cause requires only “a probability or substantial chance of criminal
activity, not an actual showing of such activity.” Illinois v. Gates, 462 U.S. 213,
243 n.13 (1983). Probable cause is a “practical and common-sensical standard.”
Florida v. Harris, 568 U.S. 237, 244 (2013). It looks to the “totality of the
circumstances” to determine whether the magistrate with “the facts available
to [him] would ‘warrant a [person] of reasonable caution in the belief’” to find
that the suspect committed the crime for which he is being arrested. See id. at
243 (alterations in original) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)
(plurality opinion)).
        So we turn to review the “corrected” affidavit to determine whether
probable cause was established that Junior murdered Murray Wayne Burr.
Examining the totality of the circumstances, we find that the corrected
affidavit does not contain sufficient information to satisfy the probable-cause


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                                      No. 16-20702
requirement. 2 A corrected affidavit would contain the following facts, which
were omitted from Johnson’s affidavit.             First, a corrected affidavit would
include reference to the material fact that Pikett used the scent of Christopher
Hammond, Megan’s boyfriend, instead of Junior’s. This omitted information
was necessary for the state trial judge to consider, because it seriously affects
whether Junior was present at the scene of Burr’s murder. There was no other
physical evidence that connected Junior to the murder scene besides the scent
lineup. Second, a corrected affidavit would inform the state trial judge that
Megan and Junior’s DNA did not match the blood at the scene and that
Megan’s hair did not match hair found at the scene. It is material because this
physical evidence suggests that someone else was involved in the murder.
Third, a corrected affidavit would have referred to Campbell’s statement that
Senior’s cousin—not Megan and Junior, like he had said earlier—let Senior
into Burr’s house to kill Burr. Although this fact would not have mattered as
to an arrest warrant for Senior, it certainly was material for Junior, because
in one scenario, he was connected to the murder, and in the other, he may not
have been present at the scene. Fourth, a corrected affidavit would have
apprised the state trial judge that Campbell’s statements contradicted aspects
of the physical evidence. Campbell said that Burr was both stabbed and shot—
although he was only stabbed—and that Senior had cut off Burr’s body part,
which was not true. Although neither of these false statements, considered
independently, would necessarily have been fatal to the affidavit—because
Senior could have told Campbell anything—together with Campbell’s other
statements, these would have served to undermine Campbell’s reliability.


       2 The district court thought there was enough information to support probable cause
to arrest Junior because of: (1) a possibly romantic relationship between Burr and Megan; (2)
Megan’s desire for Burr’s hidden money; (3) the presence of Junior’s, Megan’s, and Senior’s
scents on Burr; and (4) Campbell’s statement that Senior murdered Burr with the help of
Megan and Junior.
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                                     No. 16-20702
Weighing the totality of the circumstances, we conclude that a reasonable
magistrate would not have issued a warrant on the basis of this corrected
affidavit, because the addition of the omitted material facts would have
dissuaded the judge from issuing the warrant.
      In sum, we hold that Johnson has not established that a corrected
affidavit would show probable cause to arrest Junior. Junior is, therefore,
entitled to present his case to the jury. 3
                                            B.
      Still, Johnson further contends that he is not liable to Junior because
there were two independent intermediaries that intervened to break the causal
chain between Johnson’s alleged Fourth Amendment violation and Junior’s
incarceration: (1) the grand jury that indicted Junior and (2) the state judge
who presided over the Winfreys’ trial. We conclude that neither independent
intermediary broke the causal chain between Johnson’s faulty affidavit and
Junior’s incarceration.
      Under the independent-intermediary doctrine, “‘if facts supporting an
arrest are placed before an independent intermediary such as a magistrate or
grand jury, the intermediary’s decision breaks the chain of causation’ for the
Fourth Amendment violation.” Jennings v. Patton, 644 F.3d 297, 300–01 (5th
Cir. 2011) (quoting Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 813 (5th
Cir. 2010)). 4 “[E]ven an officer who acted with malice . . . will not be liable if


      3   We note that this appeal is not an interlocutory appeal on the sole question of
qualified immunity. Instead, it comes to us from a final decision of summary judgment for
the defendant.
        4 Junior urges us to overrule our independent-intermediary doctrine based on Manuel

v. City of Joliet, but we cannot do that and find it unnecessary. In Manuel, the Supreme
Court held “that the Fourth Amendment governs a claim for unlawful pretrial detention even
beyond the start of legal process.” 137 S. Ct. at 920. The Court said that a grand jury
indictment that “was entirely based on false testimony” could not expunge the plaintiff’s
Fourth Amendment claim. Id. at 920 n.8. But it did not hold that officers can never be
insulated from liability based on later determinations by an intermediary when all the
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                                       No. 16-20702
the facts supporting the warrant or indictment are put before an impartial
intermediary such as a magistrate or a grand jury, for that intermediary’s
independent decision breaks the causal chain and insulates the initiating
party.” Buehler v. City of Austin/Austin Police Dep’t, 824 F.3d 548, 554 (5th
Cir. 2016) (quoting Hand v. Gary, 838 F.2d 1420, 1427 (5th Cir. 1988)), cert.
denied sub nom. Buehler v. Austin Police Dep’t, 137 S.Ct. 1579 (2017). But the
chain of causation between the officer’s conduct and the unlawful arrest “is
broken only where all the facts are presented to the grand jury, or other
independent intermediary where the malicious motive of the law enforcement
officials does not lead them to withhold any relevant information from the
independent intermediary.” Id. (emphasis added) (quoting Cuadra, 626 F.3d
at 813).
       Here, the record does not indicate that the material information, which
we have noted was omitted from Johnson’s affidavit, was presented either to
the grand jury or the state judge. Stated differently, as far as this record is
concerned, the only information before a grand jury was the information in
Johnson’s affidavit. Neither the plaintiff nor defendant has shown otherwise.
       First, because, at best, it is not clear whether “all the facts [were]
presented to the grand jury,” Cuadra, 626 F.3d at 813, we hold that the
independent-intermediary doctrine does not apply.


necessary information was placed before that intermediary. Instead, the Court affirmed a
principle that we have consistently followed: when an intermediary’s proceeding is tainted
by an officer’s unconstitutional conduct, the independent-intermediary doctrine does not
apply. Compare id. (“[I]f the proceeding is tainted—as here, by fabricated evidence—and the
result is that probable cause is lacking, then the ensuing pretrial detention violates the
confined person’s Fourth Amendment rights . . . .”), with Buehler v. City of Austin/Austin
Police Dep’t, 824 F.3d 548, 554 (5th Cir. 2016), cert. denied sub nom. Buehler v. Austin Police
Dep’t, 137 S.Ct. 1579 (2017) (stating that under the “taint” exception, “an independent
intermediary’s probable cause finding does not protect law enforcement officials whose
‘malicious motive . . . lead[s] them to withhold any relevant information.’” (alteration in
original) (quoting Cuadra, 626 F.3d at 813)).

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                                   No. 16-20702
      Second, Johnson contends that the state trial judge found probable cause
to authorize Junior’s continued detention, thereby insulating Johnson from
liability. But the record does not show that the judge ever ruled that there was
probable cause to detain Junior. At one hearing, the judge determined that
there was probable cause to arrest Megan, but nothing about Junior. And in
other hearings, the judge decided whether certain evidence should be allowed
at trial and whether Senior should be granted a directed verdict. None of these
hearings addressed the central question today: whether there was probable
cause to arrest Junior. So we have no basis to find that the subject material
omitted information was presented to the state trial judge.
                                        IV.
      We now turn from the state proceedings to the procedural errors that
Junior asserts in the federal proceeding below.         Junior contends that the
district court excluded the testimony of David Kunkle, a former police chief
and Junior’s expert witness. He contends this exclusion was an abuse of
discretion. But after our examination of the record, we conclude that the
district court never decided whether Kunkle could testify at trial. We are a
court of appeals and errors. Inasmuch as the district court made no decision
and issued no ruling, it could not have made an error or otherwise created an
issue for appeal.    We therefore decline to address the exclusion of David
Kunkle’s testimony until the district judge has expressly ruled on the issue.
      Junior contends that the district judge orally ruled from the bench to
exclude Kunkle from trial on October 20, 2014. But at that hearing, the judge
never explicitly ruled that Kunkle could not testify. He said,
            And there is no salvageable part of the police chief’s,
      [Kunkle,] as I recall. . . . It’s simply, it’s what we tried very hard to
      get away from back in the early 80s. And I don’t remember when
      Daubert was, somewhere in there; but I have always believed that
      expert testimony had to mean something. And we got anybody

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                                 No. 16-20702
      with a decent resume could say anything was pretty much the rule
      for a long time.
             And the Supreme Court finally said they have to know
      something in particular about what is going on and it has to be
      cogent. There is no peer review for police chiefs. The city council,
      but they’re not really peers there, something else entirely
      different.
Although strongly suggestive, this statement did not expressly grant or deny
Johnson’s motion to exclude the testimony of Kunkle. Further, the district
judge indicated in his minute entry that “an order on the motion” would be
entered following the hearing, but no such order was ever entered.
      Furthermore, the Supreme Court has made clear that trial judges must
play a “gatekeeping” role when examining the reliability of experts, and the
court’s inquiry must be “tied to the facts” of the particular case. See Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (quoting Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 591 (1993)). The district court is required to
make a ruling and provide articulable reasoning before we can review whether
its decision was proper. Here, if the question arises on remand, the district
court will need to make clear its basis for its ruling on Kunkle’s testimony.
                                       V.
      Finally, Junior requests that this Court remand the matter to a different
district judge. We find no basis for that request.
                                      VI.
      In this opinion, we have held that (1) Junior has alleged a valid Fourth
Amendment claim against Johnson; (2) Junior’s claim is not time-barred; (3)
Johnson has not shown that his alleged conduct is protected by qualified
immunity; (4) a corrected affidavit did not establish probable cause; (5)
Johnson is not protected by the independent-intermediary doctrine; (6) because
the district court did not expressly rule whether to exclude Kunkle, we do not
address whether the court abused its discretion; and (7) we find no basis for
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                                No. 16-20702
remanding the matter to a different district judge. The primary question on
remand appears to be whether Johnson acted recklessly, knowingly, or
intentionally by presenting the judge with an arrest-warrant affidavit that
contained numerous omissions and misstatements. This case should go to trial
without delay in a manner not inconsistent with this opinion.
     Accordingly, the judgment of the district court is VACATED and the case
is REMANDED.
                                                VACATED and REMANDED.




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