           Case: 15-15270   Date Filed: 04/19/2016   Page: 1 of 8


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-15270
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:14-cv-00502-KD-M



VINCENT WHITE,

                                                               Plaintiff-Appellee,

                                  versus

JOHN MCLAIN,

                                                         Defendant-Appellant,

JOHNNY THORNTON, SR., et al.,

                                                                     Defendants.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                              (April 19, 2016)

Before ED CARNES, Chief Judge, JORDAN, and JULIE CARNES, Circuit
Judges.
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PER CURIAM:

      Vincent White sued several members of the Mobile County Sherriff’s Office

after they burst into his home without legal justification. The deputies, who had

mistaken White’s house for the one specified in a warrant, all asserted qualified

immunity as a defense to White’s claim that they had violated his Fourth

Amendment rights. The district court held that qualified immunity insulated all but

one of them from that claim. The only officer denied immunity was Deputy John

McLain, the man responsible for confirming that the deputies had the right house.

He appeals the district court’s order denying him qualified immunity, asserting that

he made reasonable efforts to confirm that the house identified in the warrant was,

in fact, the one he had been told was part of a drug dealing operation. We reverse

the district court’s order denying him qualified immunity because his conduct did

not violate “clearly established” law when it occurred.

      The district court accurately characterized the facts drawn from the evidence

construed in the light most favorable to White:

             In October 2012, [McLain] received information from a
      confidential informant that an individual was involved in the
      distribution of marijuana and that the individual was storing drugs at
      his girlfriend’s residence located at 1817 Toulmin Avenue, Mobile,
      Alabama. McLain and the confidential informant drove past the
      residence and the informant pointed out the house to McLain. Three
      months later, McLain received corroboration from a different
      confidential informant. Both informants told McLain that the house
      in question was the second house on the left after turning from St.


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Stephens Road. A month later, the second informant again told
McLain about the drug activity at 1817 Toulmin Avenue.

       On February 5, 2013, McLain traveled to Toulmin Avenue
[again]. However, rather than entering from St. Stephens Road, he
turned onto Toulmin Avenue from Carleton Street, which resulted in
him approaching the house from the opposite direction he would have
if he had entered from St. Stephens Road. When approaching from
St. Stephens Road, the first house on the left i[s] situated further back
from the street than the other houses on Toulmin Avenue. McLain
approached what he “believed to be the second house” and took a
photograph of it. The house he took a photograph of was 1819
Toulmin Avenue. White’s house, 1819 Toulmin Avenue, is the third
house on the left when approaching from St. Stephens Road and the
target house, 1817 Toulmin Avenue, is the second house on the left.
        Before taking the photograph, as McLain approached 1817
Toulmin Avenue, he noticed people who he thought appeared to be
engaged in drug activity, standing in front of what McLain thought
was 1817 Toulmin Avenue. “So not to expose [himself] as a narcotics
officer,” McLain “pulled off the side of the road” and took a
photograph of White’s home, which he “believed to be” 1817
Toulmin Avenue. Though not visible in the photograph McLain took,
White’s numerical street address (1819) is posted at eye level to the
left of his front door.

       In the darkness of the early morning hours of February 6, 2013,
McLain travelled to Toulmin Avenue to check out information from
an informant. [The] informant had told McLain that a “certain vehicle
dropped off some drugs” and “[McLain] was trying to determin[e] if
that vehicle was at the location.” Neither 1817 nor 1819 Toulmin
Avenue had any residential lights turned on when McLain passed.
Looking straight at 1817 Toulmin Avenue, its driveway is on the right
side of the house. From the same vantage point, 1819 Toulmin
Avenue is to the right side of 1817 Toulmin Avenue. McLain
observed the vehicle he had been looking for, and it was parked “back
behind the house.”
      As a result of the information McLain obtained from the
informants and the details uncovered during investigation, he obtained
a search warrant for 1817 Toulmin Avenue. However, in the search
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warrant application, he attached a picture of 1819 Toulmin Avenue
rather than 1817 Toulmin Avenue. Additionally, McLain’s written
description of the place to be search[ed] described the façade of 1819
rather than 1817 Toulmin Avenue.

      Later that morning, McLain briefed members of the Mobile
County Sheriff’s Office Narcotics and Vice Unit about the upcoming
search of 1817 Toulmin Avenue. Defendant Deputies Johnny
Thornton, Sr., John Cassidy, Allen O’Shea, Greg O’Shea, Jeffrey
Sullivan, and Clinton Law were present at the briefing. During this
meeting, McLain showed the deputies a photograph of White’s house,
which was 1819 Toulmin Avenue and told them that this was the
house where the search warrant was to be executed.
       After the briefing, the Defendants travelled in several vehicles
to Toulmin Avenue. When the deputies arrived at 1819 Toulmin
Avenue, several of them attached a truck’s winch hook to the burglar
bars on the front door. Other deputies arranged themselves outside
the home. McLain gave the “go” signal and deputies pulled the
burglar bars from the front door. Deputy John Cassidy forced entry
into the home using a ram. Defendant Deputy Clinton Law entered
the home first, holding a riot shield. McLain, Greg O’Shea, Johnny
Thornton, and Captain Razzie Smith followed Law into the home.
      Prior to the Defendants’ entry, White was home preparing to
attend a doctor’s appointment. As the Defendants entered his home,
White was moving from his bedroom into the hallway. Law detained
White, kicking his legs apart and placing him in handcuffs. Law also
forced White to get down on the floor of the bathroom. Law used his
hands to push White onto the floor while yelling for White to get
down.
       Within minutes the Defendants realized their error. Captain
Razzie Smith brought White up from the floor and removed the
handcuffs from his wrists. Smith apologized to White and explained
that there had been a mix-up and that White’s home had been entered
in error.

      In January 2013, the month before the search, White underwent
abdominal surgery. On February 6, 2013, White had a pre-scheduled
appointment with his doctor several hours after the search. His doctor

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      checked his incision, which was not leaking at that time. Several
      hours later, White went to the emergency room at Mobile Infirmary,
      complaining of pain and experiencing leakage from his surgical
      incision. He was admitted and treated at the hospital. He seeks
      damages including but not limited to medical expenses, and
      compensation for the physical and emotional injuries he suffered as
      [a] result of the events of February 6, 2013.

White v. McLain, No. 14-502-KD-M, 2015 WL 7196412, at *1–3 (S.D. Ala.

Nov. 16, 2015) (citations omitted).

      Relying heavily on our decision in Hartsfield v. Lemacks, 50 F.3d 950 (11th

Cir. 1995), the district court denied McLain qualified immunity. It concluded that,

although McLain’s was “undoubtedly an honest mistake,” his “actions in this case

were simply not consistent with a reasonable effort to ascertain and identify the

place intended to be searched.” White, 2015 WL 7196412 at *7 (quotation marks

omitted). We review de novo a district court’s denial of qualified immunity. Perez

v. Suszcynski, 809 F.3d 1213, 1216 (11th Cir. 2016).

      Under the doctrine of qualified immunity, “government officials performing

discretionary functions generally are shielded from liability for civil damages

insofar as their [official] conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). A government

official seeking qualified immunity “must prove that he was acting within the

scope of his discretionary authority when the allegedly wrongful acts occurred,”


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Hartsfield, 50 F.3d at 953, and White does not dispute that McLain was. “[I]f the

official meets that burden, the plaintiff must prove that the official’s conduct

violated clearly established law.” Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1281

(11th Cir. 1998). A law is “clearly established” only when preexisting law gave

government officials “fair warning” that their conduct was unconstitutional. Hope

v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002).

      Because then-existing law did not fairly warn McLain that his conduct

leading up to the search violated federal law in the circumstances,” he is entitled to

qualified immunity here. None of our precedents holds — or logically compels the

conclusion — that an officer’s well-intentioned attempts to ascertain and identify

the property described in a warrant are not reasonable simply because they lead to

an error, or because more accurate means of ascertaining the property’s identity

were available. That might be the better rule, but it is not a rule that was clearly

established in this circuit when the events giving rise to this lawsuit happened.

      White relies on our Hartsfield decision, but it does not clearly establish what

White needs to defeat McLain’s defense of qualified immunity. In that case, a

confidential informant took Deputy Sheriff Mike Newton to a residence at 5108

Middlebrooks Drive, where the informant purchased marijuana from an occupant.

Based on those events, Newton obtained a search warrant for 5108 Middlebrooks

Drive. The next day, however, when he returned with other law enforcement


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officers to execute the warrant, he mistakenly led the team to the residence at 5128

Middlebrooks Drive. The officers forcibly entered that home with guns drawn.

Only several minutes later — after the residence’s innocent occupant had a gun

pointed at her head and a police dog had sniffed around her home — did the

officers realize their error. When Newton asserted qualified immunity, the district

court denied his motion. We affirmed the denial, reasoning that:

      [a]lthough we recognize 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, . . .
      Newton’s actions in this case were simply not consistent with a
      reasonable effort to ascertain and identify the place intended to be
      searched, as dictated by [Maryland v. Garrison, 480 U.S. 79, 107 S.
      Ct. 1013 (1987)].”
Hartsfield, 50 F.3d at 955. As we explained elsewhere in the opinion:

             Newton had been to the proper residence the day before the
      search and had procured the search warrant based upon his own
      observations supervising a drug buy at 5108 Middlebrooks. Although
      Newton had the warrant in his possession, he did not check to make
      sure that he was leading the other officers to the correct address, let
      alone perform any precautionary measures such as those performed by
      the officers in Garrison. As it is uncontroverted that the numbers on
      the houses are clearly marked, and that the raid took place during
      daylight hours, simply checking the warrant would have avoided the
      mistaken entry. Moreover, evidence before the court showed that the
      houses were located on different parts of the street, separated by at
      least one other residence, and that their appearance were
      distinguishable.

             Because Newton did nothing to make sure that he was leading
      the other officers to the correct residence, we conclude that the district
      court erred in holding that he was protected by qualified immunity.

Id.
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      There are obvious differences between that case and this one. In Hartsfield,

“Newton did nothing to make sure that he was leading the other officers to the

correct address.” Id. (emphasis added); see also id. (characterizing the law

enforcement conduct at issue as “searching the wrong residence when [Newton]

had done nothing to make sure he was searching the house described in the

warrant”). McLain, by contrast, did attempt to ascertain and verify that he had the

right house. He revisited the block where the house sits, took a photograph of what

he perceived to be the second house on the left coming off of St. Stephens Road

(the description one of the confidential informants had given of the house to be

searched), and verified that a car associated with the trafficking appeared to be

parked behind the house he had identified. His attempts were ineffectual, but he

made them, which is more than Newton did. The Hartsfield Court, after all,

repeatedly noted and expressly rested its holding on the fact that “Newton did

nothing.” We cannot say that the Hartsfield decision put law enforcement

personnel on notice (that is, gave them fair warning) that an officer who attempts

to ascertain and verify the identity of the place to be searched violates the Fourth

Amendment if he fails to do everything possible to ensure that he is not mistaken.

      The portion of the district court’s order denying qualified immunity to

Deputy McLain is REVERSED and the case is REMANDED for further

proceedings consistent with this opinion.


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