                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                             No. 11-15073                APRIL 16, 2012
                         Non-Argument Calendar             JOHN LEY
                       ________________________             CLERK

                 D.C. Docket No. 6:09-cv-01934-GAP-GJK



JOSUE SALAZAR,

                                                          Plaintiff - Appellee,

                                  versus

CITY OF PALM BAY, et al.,

                                                                  Defendants,

FRANK WALTERS,

                                                       Defendant - Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (April 16, 2012)
Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Officer Frank Walters of the City of Palm Bay Police Department appeals

the denial of qualified immunity against Josue Salazar’s complaint of false arrest.

42 U.S.C. § 1983. The district court ruled that genuine issues of material fact

barred summary judgment. We affirm.

      Salazar complained that Walters lacked probable cause to arrest him for

delivering drug paraphernalia. Salazar alleged that Walters arrested him after

Walters observed various liquid fertilizers in the open bed of Salazar’s truck.

Walters moved for summary judgment on the ground that he had observed in the

bed of Salazar’s truck “equipment” and brands of fertilizers, like “Sensi Grow”

and Sensizym,” used commonly to cultivate marijuana.

      The district court did not err when it ruled that Walters was not entitled to

summary judgment based on qualified immunity. To be guilty of delivering drug

paraphernalia, a person must “deliver [or] possess with intent to deliver . . . drug

paraphernalia, knowing, or under circumstances where [he] reasonably should

know, that it will be used . . .[t]o plant, propagate, cultivate, grow, harvest,

manufacture, . . . produce, process, prepare, . . . or conceal a controlled substance.”

Fla. Stat. § 893.147(2)(a). The record reveals genuine issues of material fact about

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whether Walters had arguable probable cause to arrest Salazar for transporting

fertilizer — an otherwise legal substance — for an illegal purpose. In a

supplemental report about the arrest, Walters stated that he had observed in the

bed of Salazar’s truck “several gallons of liquid chemicals, boxes of powder

chemicals, and electronic devices” that were “known to [him] through [his]

training and experience as items typically used for illegal hydroponic marijuana

cultivation operations.” One of Salazar’s passengers, Roberto Marquez, testified

that he had observed “a couple [of] boxes” of fertilizer in the bed of truck and

“some of them had said right on the box” what they contained. Salazar testified

that the bed of his truck contained only “bottles and bottles” of liquid fertilizer. If

we accept Salazar’s testimony as true, which we must, at this stage, a reasonable

jury could find that Walters violated Salazar’s right under the Fourth Amendment

not to be arrested without probable cause.

      The denial of Walters’s motion for summary judgment based on qualified

immunity is AFFIRMED.




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