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

                                                 FILED
                                                                             May 1, 2009

                                       No. 08-60362                    Charles R. Fulbruge III
                                                                               Clerk

KAWIN REESE

                                                   Plaintiff - Appellant
v.

MONROE COUNTY SHERIFF’S DEPARTMENT, also known as Monroe
County Mississippi; CHRISTOPHER DALE GRAY; RANDY PERKINS;
CHRISTOPHER RIEVES; RONALD WEST

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:06-CV-126


Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
       Kawin Reese contends, inter alia, genuine issues of material fact preclude
the summary judgment awarded some of the Defendants. Because there are
such issues, the summary judgment is VACATED in part and this matter is
REMANDED for further proceedings. The summary judgment for the Monroe




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-60362

County Sheriff’s Department and its Deputies, Christopher Dale Gray and
Ronald West, in their official capacities, is AFFIRMED.
                                       I.
      On Christmas day, 2005, John Lowe, a fugitive from the Mississippi
Department of Corrections’ (MDOC) house-arrest program, was in Kawin
Reese’s home (house trailer). According to Reese, he was unaware of Lowe’s
fugitive status. The parties offer differing accounts of what took place while
Lowe was in Reese’s home and how long he was there. They agree, however,
that Lowe called his girlfriend, Lisa Spence, to come and pick him up.
      Spence instead contacted Randy Perkins, Lowe’s MDOC house-arrest
officer, and gave him directions to Reese’s trailer. Perkins, accompanied by
MDOC Agent Christopher Rieves (collectively MDOC Defendants), and MDOC
Agent Dallas Burkes, contacted the Monroe County Sheriff’s Department for
backup. Based on the conversations with Spence, the MDOC Agents believed
Antonio Reese, a drug dealer related to Kawin Reese, might be present. In his
deposition, MDOC Agent Perkins testified that Antonio Reese was dangerous
and previously had been charged with assaulting police officers.
      At approximately 3:00 a.m. on 26 December, MDOC Agents Perkins,
Burkes, and Rieves arrived at Kawin Reese’s trailer and found Lowe outside it,
although his precise distance from the trailer is disputed. Lowe was arrested
without incident. The MDOC Defendants maintain Lowe told them Antonio
Reese was inside Kawin Reese’s trailer. This is also disputed.
        The MDOC Defendants (Agents Perkins and Rieves) entered Kawin
Reese’s trailer, without a warrant, and found him awake with his girlfriend. The
two Monroe County Deputies, Gray and West (Monroe County Defendants),
subsequently arrived at, and entered, Reese’s trailer. The parties dispute why
the Defendants entered and precisely what occurred inside the trailer.



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                                  No. 08-60362

      Kawin Reese maintains that, once the MDOC Defendants entered his
bedroom, they used racial slurs and demanded to know “where the drugs” were
located.   According to Reese, the MDOC Defendants searched, inter alia, his
bedroom drawers, his trousers, and his girlfriend’s purse. Reese gave deposition
testimony that, while he and his girlfriend were detained in the bedroom, his
trailer was thoroughly searched, including by the Monroe County Defendants;
he could hear drawers and closets being opened and shut; and, when he later
inspected the trailer, it had been “ransacked”: drawers and closets had been
opened, and mud had been tracked throughout.
      Pursuant to 42 U.S.C. § 1983, Kawin Reese filed this action in April 2006,
initially against unknown officers with the MDOC and Monroe County, but
subsequently amended his complaint to name as defendants Monroe County
Deputies Gray and West, and MDOC Agents Perkins and Rieves. Following
discovery, a summary-judgment motion was filed by the Monroe County Sheriff’s
Department and its two deputies (the three Monroe County Defendants). The
MDOC Defendants were granted an extension to file a similar dispositive
motion, but never did. The district court granted the three Monroe County
Defendants’ motion and ordered Kawin Reese to show why summary judgment
should not also be granted, sua sponte, to the MDOC Defendants.
      After Kawin Reese responded, the district court granted summary
judgment for the MDOC Defendants. Regarding both sets of Defendants, the
district court concluded, inter alia: Reese had failed to establish, as a threshold
matter, the violation of a constitutional right because the warrantless entry was
justified by exigent circumstances.
                                        II.
      “We review de novo the district court’s ruling on a motion for summary
judgment, applying the same legal standard as the district court in the first
instance.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.

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                                    No. 08-60362

2007). “[W]e must view the facts and the inferences to be drawn from them in
the light most favorable to the nonmoving party”. Wyatt v. Hunt Plywood Co.,
Inc., 297 F.3d 405, 409 (5th Cir. 2002). Summary judgment should only be
granted “if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law”. F ED. R. C IV. P. 56(c).
Restated, if genuine issues of material fact exist, a summary judgment is
precluded; such factual issues must be resolved by the trier of fact.
                                          A.
      The district court concluded: because Lowe had been arrested in the
proximity of Kawin Reese’s trailer, the officers present could conduct a
warrantless “protective sweep” for their own safety.       The record suggests,
however, a genuine issue regarding Lowe’s proximity to the trailer. Although
MDOC Agent Perkins gave deposition testimony that Lowe was standing in the
front door of Reese’s trailer, MDOC Agent Rieves gave deposition testimony that
Lowe was at the end of the driveway. According to Reese, this would have
placed Lowe around 76 feet from Reese’s trailer.       The parties also dispute
whether Lowe told the MDOC Defendants, as they were arresting him, that
Antonio Reese was inside the trailer. These are, of course, quintessential fact
questions that can not be decided on summary judgment.
      Authority relied upon by Defendants does not compel the conclusion that
Lowe’s mere presence on Reese’s property, no matter how distant from the
trailer,   justified   a   warrantless   search.   Defendants   contend   exigent
circumstances exist, in any event, because of United States v. Maldonado, 472
F.3d 388, 395 (5th Cir. 2006). In Maldonado, our court held exigency justified
the warrantless search of a home when a suspect was arrested near its front
door. In Maldonado, however, the arrest appears to have occurred in relatively
close proximity to the residence. Id. at 392.

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      The Monroe County Defendants also rely on similar cases in which our
court found exigency when arrests were conducted near residences.             Like
Maldonado, and potentially unlike the matter at hand, these cases all involved
arrests occurring quite close to the dwelling ultimately searched. In United
States v. Watson, 273 F.3d 599 (5th Cir. 2001), our court concluded an arrest
near a dwelling might justify a warrantless search. In Watson, however, the
subject of the arrest was so close to the front door that a fact question existed
whether the subject was inside or outside the house when arrested. Id. at 602.
See also United States v. Merritt, 882 F.2d 916, 921 (5th Cir. 1989) (defendant
arrested at door of motel room searched); Kirkpatrick v. Butler, 870 F.2d 276,
281 (5th Cir. 1989) (defendant arrested on porch of his home).
                                        B.
      The district court granted summary judgment for the Monroe County
Sheriff’s Department and its Deputies, Gray and West, in their official
capacities, as required by Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
Under Monell, the county, or its employees in their official capacities, could only
be liable if the claimed constitutional deprivation resulted from a policy or
custom of the county. Id. at 694. Although Reese concedes there is no evidence
in the record of such a policy or custom, he urges Monell should not apply to this
case. As Reese suggests in his brief, and his counsel confirmed at oral argument,
this contention is advanced solely to preserve it. Accordingly, in the light of
Monell, summary judgment for the Monroe County Sheriff’s Department and its
two deputies in their official capacities was proper.
                                       III.
      For the foregoing reasons, the summary judgment awarded MDOC Agents
Perkins and Rieves and Monroe County Deputies Gray and West in their
individual capacities is VACATED and this matter is REMANDED for further
proceedings consistent with this opinion. The summary judgment in favor of the

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                               No. 08-60362

Monroe County Sheriff’s Department and Deputies Gray and West in their
official capacities is AFFIRMED.
     AFFIRMED IN PART; VACATED IN PART; AND REMANDED.




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