     Case: 17-11242      Document: 00515160517         Page: 1    Date Filed: 10/16/2019




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


                                      No. 17-11242
                                                                               FILED
                                                                        October 16, 2019
                                                                          Lyle W. Cayce
ANDERSON JONES,                                                                Clerk

              Plaintiff - Appellant

v.

ELENA PEREZ,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CV-2835


Before DAVIS, COSTA, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Dallas Police Detective Elena Perez obtained a warrant to arrest
Anderson Jones for murder. In seeking the warrant, Perez did not inform the
magistrate about significant problems with the reliability of the eyewitness
who had identified Jones.         After the charge was dropped based on those
reliability doubts, Jones sued Perez. We must determine whether the arrest
violated Jones’s Fourth Amendment rights.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-11242
                                       I.
      Leonardo Ortega was closing up the Subway sandwich shop where he
worked when two men entered with their faces covered. One aimed a gun at
Ortega while the other took cash from the register. After a struggle, Ortega
was shot. He was pronounced dead when he arrived at the hospital.
      Detective Perez was assigned to the case. Two eyewitnesses told her
about a third man involved in the murder—a lookout who stood across from
the shop and ran off with the other suspects. Perez’s investigation stalled until
an anonymous tipster called with information about the third suspect’s
identity. According to the tipster, Christopher Miller was bragging about being
the lookout. Perez brought him in for questioning.
      It soon became clear that Miller might not be the most reliable of
witnesses. It appeared to Perez that he had “a low IQ,” and Miller explained
that he had smoked synthetic marijuana and drunk a few beers before coming
to the station. Miller initially said he had nothing to do with the murder but
soon began to waffle. He admitted—occasionally backtracking—that he was
there that night. He told Perez that two men he often saw selling drugs at an
apartment complex near the murder scene had asked him to watch while they
robbed the Subway. Miller knew them only by their nicknames: K.T. and
Weezy. It was K.T., he said, who pulled the trigger. Miller’s description of the
murder was consistent with what three witnesses had said the night of the
crime. He left the police station that night.
      The next morning, a few officers took Miller and his brother to the
apartment complex to see if they could find K.T. It is unclear who ultimately
made the identification, but the officers soon learned that K.T. was Anderson
Jones, the plaintiff in this case. A few officers took Miller back to meet again
with Detective Perez while a few others tailed Jones.


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                                  No. 17-11242
      Those officers say Jones committed a Texas Transportation Code
violation when he walked in the street instead of using a sidewalk. So when
Jones got in a friend’s car, the officers pulled him over. The officers could smell
marijuana during the stop, and a search of Jones’s backpack uncovered some,
along with a scale and some baggies. They arrested Jones for marijuana
possession and brought him in.
      While detained, Jones admitted that his nickname was K.T. but denied
any involvement in Ortega’s murder.         He said he was with his girlfriend
throughout that evening. But when Perez contacted Jones’s supposed alibi,
she told a different story. She said she picked Jones up that night from a bus
stop near the Subway. Jones was jailed on the drug charge.
      Perez returned to questioning Miller. He was obviously distressed and
threatened to commit suicide several times. He even attempted to strangle
himself with his own shirt and had to be restrained.          But he eventually
repeated the story he had told Perez the previous night, albeit with some
difficulty and with the aid of a few prompts from Perez. Perez decided that she
should conduct a photo lineup to see if Miller could identify Jones as K.T.
Another D.P.D. officer showed Miller six photographs, one at a time, and asked
whether the person pictured killed Ortega. Miller answered “yes” to three of
the photographs—one of Jones and two of uninvolved individuals.                He
explained that he thought the three he picked out all looked like the same
person. Perez returned with a single photo of Jones and asked “Who’s that?”
Miller answered, “That’s K.T.”
      Over the course of the two interviews, a number of inconsistencies
appeared in Miller’s story. He first said he was by the sidewalk directly in
front of a store adjacent to the murder scene. But after Perez informed Miller
that video evidence contradicted him, he said he was in the parking lot by a
tree. Though he ultimately told Perez that K.T. and Weezy fled on foot, he
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                                 No. 17-11242
initially claimed that they drove away from the scene. At one point he even
suggested his mother was at the scene of the crime.          And some of his
statements were contradicted by other evidence. He recalled that K.T. and
Weezy were wearing t-shirts, while the official incident report explains that
the suspects were wearing black hoodies. He said K.T. and Weezy dragged
Ortega out of the store and shot him there, but the evidence suggests they shot
Ortega inside the store. He said the murder weapon was a 9mm pistol, when
it was a revolver.
      Despite these inconsistencies, Perez used Miller’s statements to obtain
an arrest warrant against Jones for capital murder. In her probable cause
affidavit, Perez explained that Miller had confessed to participating in and
planning the offense, that Miller stated that “Jones shot and killed” Ortega,
and that Miller “picked . . . Jones from a photo line up as the person with the
gun[] who planned and participated in the offense.” She also said that she had
interviewed Jones and that he was “uncooperative.” The warrant was issued
and Jones, already detained the day before on the marijuana charge, was
booked on the murder charge. His bail was set at $1,000,000.
      Several days later, a few of Perez’s superiors learned about her handling
of the case. They were particularly concerned that Miller had selected three of
the six photos he was shown in the initial lineup and that Perez had
corroborated that lineup by showing Miller a single photo of Jones. After
reviewing her interviews of Miller, they recommended that the capital murder
charge be dropped. It was. Four days later, Jones was released from jail on a
personal recognizance bond for his marijuana charge.
      The Dallas Police Department investigated Perez’s handling of the case.
It determined that she had improperly conducted a one-photograph lineup and
that she had “entered inaccurate and incomplete information” in her probable
cause affidavit.     The Deputy Chief testified that a lineup in which the
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                                  No. 17-11242
informant selects half of the pictures is “basically null and void.” Ultimately,
Perez was suspended from the force for ten days and removed from the
homicide division.
      Jones then filed this suit against Perez, alleging that his Fourth and
Fourteenth Amendment rights were violated when he was arrested for capital
murder. Perez claimed that, even if Jones’s rights had been violated, she was
entitled to qualified immunity. The district court determined that Jones had
not suffered a violation of his constitutional rights and granted Perez summary
judgment.
                                        II.
      This court reviews a “district court’s grant of summary judgment de
novo, applying the same standard as the trial court.” Brewer v. Hayne, 860
F.3d 819, 822 (5th Cir. 2017). The two-step qualified immunity inquiry is
familiar: First we determine whether the facts, taken in the light most
favorable to the plaintiff establish a violation of a constitutional right. Saucier
v. Katz, 533 U.S. 194, 201 (2001). We then ask whether the defendant’s actions
were nonetheless reasonable in light of the clearly established law at the time
of her conduct. Pearson v. Callahan, 555 U.S. 223, 243–44 (2009). Once the
defense is asserted, it is the plaintiff’s burden to show that the defendant is not
entitled to it. Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007).
                                        A.
      On his Fourth Amendment claim, Jones argues that by glossing over the
dubious nature of Miller’s identification of Jones in her probable cause affidavit
and by failing to alert the magistrate that Miller’s reliability was seriously in
doubt, Perez violated his Fourth Amendment rights when she arrested him for
capital murder.      The parties agree that the typical analysis in these
circumstances would require Jones to show genuine issues of material fact on
1) whether Perez knowingly, or with reckless disregard for the truth, provided
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                                  No. 17-11242
the magistrate with false information; and 2) whether after reconstructing
Perez’s probable cause affidavit by excising the falsehoods and inserting the
material omissions, the warrant would be unsupported by probable cause. In
other words, did Perez lie to the magistrate and, if so, were those lies necessary
to obtain the warrant?
      That test is taken from Franks v. Delaware, 438 U.S. 154 (1978).
Although that case announced a standard for determining when evidence
should be suppressed because it was uncovered during the execution of a
search warrant obtained by misleading the magistrate, it has been applied
outside the suppression and search warrant contexts to cases like this one. See
Freeman v. Cty. of Bexar, 210 F.3d 550, 553 (5th Cir. 2000). The district court
thus dutifully marched through the Franks inquiry. It agreed with Jones that
Perez’s probable cause affidavit was problematic and assumed that certain
facts she omitted should have been included. Step one done, the court set out
to determine whether Perez’s misleading statements were necessary to get the
arrest warrant. As Franks instructs, the court reconstructed the affidavit to
contain six material facts: 1) Perez received a tip suggesting Miller’s
involvement; 2) Miller confessed to planning and participating in the offense;
3) Miller said “K.T.” shot Ortega; 4) Miller has a low I.Q. and had a beer and
smoked synthetic marijuana prior to his initial interview; 5) “Miller’s account
of the crime was inconsistent and, at times, inaccurate”; and 6) Miller picked
three photos, including Jones’s, out of a six-photo lineup as the person who shot
and killed Ortega, and later identified Jones in a single-photo lineup. The
district court then concluded that this was enough to create probable cause.
      But this whole process is a bit academic when Franks is applied to civil
cases. Because “a warrant is not a prerequisite to a lawful arrest,” the ultimate
inquiry for a Fourth Amendment false arrest claim is whether the arrest was
reasonable. United States v. Morris, 477 F.2d 657, 663 (5th Cir. 1973); see also
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                                     No. 17-11242
Graves v. Mahoning Cty., 821 F.3d 772, 775 (6th Cir. 2016) (“To establish a
cognizable Fourth Amendment claim, the plaintiff[] must show a violation not
of the Warrant Clause but of the Reasonableness Clause.”). And an arrest is
reasonable when “there is probable cause to believe that a criminal offense has
been or is being committed,” warrant or no warrant. Devenpeck v. Alford, 543
U.S. 146, 152 (2004). That is why our court has, in civil suits challenging
arrests, 1 applied a third step after completing the traditional Franks analysis.
It asks whether “any reasonably competent officer possessing the information
each officer had at the time [s]he swore [her] affidavit could have concluded
that a warrant should issue.” Freeman, 210 F.3d at 553. This inquiry is the
ultimate liability question in a false arrest case: Did the officer have
information establishing probable cause, whether or not that information was
included in the warrant?
       So whether the district court properly reconstructed the affidavit or
correctly determined that the reconstruction supported a finding of probable
cause is beside the point if Perez, at the time she swore out her affidavit, had
probable cause to believe Jones had committed the murder. She did. Perez
knew that Miller, who said he had witnessed the murder, pointed the finger at
someone named K.T. Other witnesses corroborated some of the information he
provided about how the murder occurred. And Jones admitted his nickname
was K.T., which reduced the importance of the photo identification and put the
focus on whether Miller reliably identified K.T. as the murderer. Perez also
knew that Jones gave a false alibi. In addition to showing that Jones had been




       1 Civil “Franks” cases involving search warrants are different and remain focused on
the warrant because the Supreme Court has read the Fourth Amendment to require a
warrant for many searches. The Constitution does not require a warrant for an arrest. See,
e.g., Atwater v. City of Lago Vista, 532 U.S. 318 (2001).
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                                    No. 17-11242
dishonest about where he was on the night of the murder, his girlfriend
statement’s placed Jones near the crime scene.
      These facts are enough to clear the probable cause bar. That standard
does not require that the officer believe that it is more likely than not that the
suspect committed the offense. See United States v. Watson, 273 F.3d 599, 602
(5th Cir. 2001). Instead, the officer must reasonably believe there was a “fair
probability” he did. Piazza v. Mayne, 217 F.3d 239, 246 (5th Cir. 2000) (per
curiam) (quotation omitted). That fair probability of criminal conduct usually
exists just from the statement of a single eyewitness, assuming no reliability
concerns. 2    See Phillips v. Allen, 668 F.3d 912, 915 (7th Cir. 2012)
(“Identification by a single eyewitness who lacks an apparent grudge against
the accused person supplies probable cause for arrest.”); Curley v. Village of
Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (“When information is received from a
putative victim or an eyewitness, probable cause exists, unless the
circumstances raise doubt as to the person’s veracity[.]” (citation omitted)).
The numerous problems with Miller’s statement may well have reduced its
reliability below the probable cause threshold, though that is a close call as the
district judge believed it was still sufficient to establish probable cause. But
then there is the false alibi and Jones’s girlfriend’s placing him near the crime.
A false alibi is, of course, quite suspicious. See House v. Bell, 547 U.S. 518, 551
(2006). This other evidence at least partially corroborated Miller’s statement
and put the overall evidentiary mix back at the level of probable cause even if
the information in a reconstructed affidavit would not have sufficed.




      2 A separate body of law governs the probable cause inquiry when information comes
from a confidential informant. See Illinois v. Gates, 462 U.S. 213, 238–39 (1983).
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                                        No. 17-11242
       Because Perez could have reasonably believed probable cause existed
when she obtained the warrant for Jones’s arrest, that arrest did not violate
his Fourth Amendment rights. 3
                                               B.
       Jones also argues that the arrest violated his right to substantive due
process. But the Supreme Court has warned that there is no right under the
Fourteenth Amendment “to be free from criminal prosecution except upon
probable cause.” Albright v. Oliver, 510 U.S. 266, 268 (1994). Even supposing
that Albright might not have eliminated all due process protection against an
officer’s allegedly unconstitutional conduct, the situations in which the
Fourteenth Amendment could conceivably provide an avenue to relief would
be limited. See Cole v. Carson, 802 F.3d 752, 771–72 (5th Cir. 2015), vacated
on other grounds sub nom. Hunter v. Cole, 137 S. Ct. 497 (2016); see also
Manuel v. City of Joliet, 137 S. Ct. 911, 917–18, 920 n.8 (2017). This case does
not fall in that narrow class. There is no evidence, for instance, that Perez
deliberately framed Jones. As we noted above, Perez reasonably believed
probable cause existed to charge him with Ortega’s murder. Perez may have
presented the evidence against Jones in far too rosy a light, but she did not
make it up out of whole cloth such that her attempt to obtain the warrant
would “shock the conscience.” Cole, 802 F.3d at 771.




       3  As an alternative ground for summary judgment, Perez argues that the murder
warrant and arrest did not cause Jones any injury because he was already detained on the
drug charge. Jones does not challenge the validity of the first arrest and he remained in jail
on the drug charge for a brief time after the murder charge was dropped. Jones’s response
to this in the district was to point out that the murder charge resulted in a bond of $1 million,
though he did not produce evidence about what the bond would have been just for the drug
charge (the record does indicate that Jones was ultimately released on a personal recognize
bond). Because we find Perez had probable cause for the second arrest, we need not address
this alternative argument.
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                                 No. 17-11242
      Because the Fourth Amendment, although ultimately unavailing,
“provides an explicit textual source of constitutional protection” for the
allegations in this case, Jones may not resort to the more nebulous Fourteenth
Amendment right. Graham v. Connor, 490 U.S. 386, 395 (1989). His claim
based on that amendment also fails.
                                        ***
      The outcome of this civil suit may seem inconsistent with the deterrence
rationale of Franks. See Williams v. Brown, 609 F.2d 216, 220 (5th Cir. 1980)
(“The conduct sought to be deterred in Franks is the knowing, intentional, or
reckless use by law enforcement personnel of false statements in affidavits
tendered in support of search warrants.”). But it is a product of a false arrest
claim ultimately being about whether probable cause existed rather than the
validity of a warrant. And this case also shows that civil litigation is not the
only way to hold officers accountable for misconduct. Police departments can
play a role too, as Dallas’s did in suspending Perez and removing her from
homicide investigations based on her conduct in obtaining the warrant
charging Jones with murder.
      The judgment is AFFIRMED.




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