     Case: 13-10948      Document: 00512591294         Page: 1    Date Filed: 04/09/2014




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

                                                                                     FILED
                                    No. 13-10948                                  April 9, 2014
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
WILLIAM ALEXANDER; RUBY ALEXANDER,

                                                 Plaintiffs - Appellants
v.

ROLAND SMITH,

                                                 Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:12-cv-714


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       William and Ruby Alexander 1 appeal the district court’s order granting
summary judgment in favor of Deputy Roland Smith on their Fourth
Amendment claims. For the following reasons, we AFFIRM the judgment of
the district court.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1 Ruby Alexander was known as “Ruby McPeters” at the time of the incident giving
rise to this lawsuit. She has since married William Alexander, and she filed this lawsuit
under her married name.
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                 I.    Factual and Procedural Background
      On October 7, 2010, officials from Child Protective Services (“CPS”) came
to the home of William and Ruby Alexander to administer a random drug test
and inquire after the Alexanders’ infant daughter. Accompanying the CPS
officials were two officers from the Hood County Sheriff’s Department. CPS
had been informed that the Alexanders, both of whom have a history of drug-
related arrests, were using and selling methamphetamine.
      Upon CPS’s arrival, the Alexanders were in their front yard with their
daughter. CPS informed the Alexanders that they would perform a drug test
on them and that a positive result by either parent would result in the removal
of their daughter. Mrs. Alexander failed the drug test, and Mr. Alexander
refused to complete the test, which CPS treats as a positive result. While
holding his daughter, Mr. Alexander grew increasingly agitated and told the
law enforcement officers that they would have to shoot him in order to take his
child. The officers requested additional support.
      Additional law enforcement officers soon arrived at the Alexander home.
Around this time, Mr. Alexander handed the baby to Mrs. Alexander. Captain
Jerry East, who had just arrived, advised Mr. Alexander that there was an
outstanding warrant for his arrest for the manufacturing and delivery of drugs,
signed by a magistrate judge and dated August 10, 2010. Mr. Alexander claims
that he was not presented with the actual warrant. Captain East handcuffed
Mr. Alexander and turned him over to the custody of another officer, who then
placed Mr. Alexander in the squad car.
      Meanwhile, Lieutenant Katheryn Jividen began interviewing Mrs.
Alexander, and according to Lieutenant Jividen, Mrs. Alexander was acting
nervous, jittery, and appeared to be impaired.      Mrs. Alexander disputed
Lieutenant Jividen’s assessment and contends that her behavior was normal.
Mrs. Alexander agreed to release her daughter to CPS custody.            While
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Lieutenant Jividen placed the baby into the car seat, she noticed that Mrs.
Alexander was clutching her purse and asking a different law enforcement
officer if she could return inside the house to obtain shoes since she was
barefoot. The officer denied her request. Based on Mrs. Alexander’s actions,
Lieutenant Jividen asked if she could pat down Mrs. Alexander and search her
purse; Mrs. Alexander consented. Lieutenant Jividen stated in an affidavit
and police report that she discovered a large roll of currency and a wallet that
contained several clear plastic bags of methamphetamine. Mrs. Alexander
attested in her affidavit that there were no drugs inside her purse.
      After Lieutenant Jividen performed the search, Defendant-Appellee
Deputy Roland Smith arrived at the Alexander residence. According to Deputy
Smith’s affidavit, he had prior personal interactions with the Alexanders and
was aware of allegations that they were involved in the sale and use of illegal
narcotics. He also knew that Mr. Alexander was the subject of a federal
narcotics investigation, was known to be “dangerous” and to “dislike law
enforcement,” had prior arrests, and had served prison time relating to
homicide and illegal weapon charges. Deputy Smith claims that when he
arrived at the house, Mr. Alexander was already in handcuffs and being placed
in the back of the patrol car, and Lieutenant Jividen was kneeling and had
already located the drugs in Mrs. Alexander’s purse.            Deputy Smith
approached Lieutenant Jividen and Mrs. Alexander, and Lieutenant Jividen
handed Deputy Smith the wallet with the four baggies of methamphetamine
and the roll of money. Mrs. Alexander was then handcuffed, but not by Deputy
Smith. Deputy Smith did not witness the handcuffing of Mrs. Alexander
because he was securing the narcotics and currency in an evidence bag at the
time of her arrest. Mrs. Alexander claims that Deputy Smith placed her in the
back seat of the police car, but Deputy Smith disputes this fact.           Mrs.
Alexander was transported to the county jail by two other officers.
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      After the Alexanders were arrested, three law enforcement officers,
including Deputy Smith, performed a protective sweep of the home. The sweep
was limited to looking for people in the home, and it lasted approximately
sixty-to-ninety seconds. The officers did not find any individuals in the home.
The officers then remained outside the home to await the arrival of a search
warrant, which was obtained later that evening.
      On October 5, 2012, the Alexanders filed this lawsuit in federal court
pursuant to 42 U.S.C. § 1983, alleging that Deputy Smith and Hood County
violated their Fourth Amendment rights. Deputy Smith moved for summary
judgment, raising the affirmative defense of qualified immunity. The district
court granted Deputy Smith’s motion and entered judgment in his favor. The
Alexanders timely appeal, challenging the district court’s decision with respect
to Mrs. Alexander’s unlawful arrest claim and the unlawful search claim.
                             II.    Legal Standards
      We review a district court’s order granting summary judgment de novo,
applying the same standard used by the district court. Haverda v. Hays Cnty.,
723 F.3d 586, 591 (5th Cir. 2013). Summary judgment is warranted “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
making this decision, we draw all reasonable factual inferences in the light
most favorable to the nonmoving party. Haverda, 723 F.3d at 591.
      When a government official asserts a qualified immunity defense at
summary judgment, the burden shifts to the plaintiff to negate qualified
immunity. Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). In assessing
a qualified immunity defense, we ask two questions: “(1) whether the plaintiff
has alleged a violation of a clearly established constitutional right; and (2) if
so, whether the defendant’s conduct was objectively unreasonable in the light
of the clearly established law at the time of the incident.” Stidham v. Tex.
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Comm’n on Private Sec., 418 F.3d 486, 490 (5th Cir. 2005) (internal quotation
marks and citation omitted).       A negative answer to either of the above
questions entitles a defendant to qualified immunity. Id.
                         III.   Arrest of Mrs. Alexander
      Mrs. Alexander argues that her arrest was unconstitutional, since,
construing the facts in her favor, the search did not reveal that she had any
drugs on her person and she was behaving normally. Deputy Smith responds
that Mrs. Alexander’s focus on whether she had drugs on her person is
irrelevant since he was not involved in her arrest. Thus, he concludes that he
cannot be held liable for any alleged violation of her constitutional rights.
      To prevail on a § 1983 claim, the plaintiff must show specific conduct by
the officer that gives rise to the constitutional violation. Oliver v. Scott, 276
F.3d 736, 741 (5th Cir. 2002); see also Anderson v. Pasadena Indep. Sch. Dist.,
184 F.3d 439, 443 (5th Cir. 1999) (“In order to state a cause of action under
§ 1983, [the plaintiff] must identify defendants who were either personally
involved in the constitutional violation or whose acts are causally connected to
the constitutional violation alleged.”). When a plaintiff alleges a claim of
unlawful arrest, he must show that the police officer participated in the arrest.
See Brown v. City of Huntsville, 608 F.3d 724, 736–37 (11th Cir. 2010). An
officer who is merely present at the scene, but who did not witness the behavior
giving rise to the arrest or handcuff the individual will not be held liable for an
alleged constitutional violation. See id. at 736–37.
       The district court granted summary judgment for Deputy Smith on this
claim because Mrs. Alexander “produced no evidence that [Deputy] Smith had
any role in her arrest.” On appeal, Mrs. Alexander asserts that Deputy Smith
participated in the arrest because: (1) she “understand[s] that Roland Smith
and other claim they found baggies with methamphetamine”; (2) Deputy Smith
placed her in the back seat of the police car; and (3) Deputy Smith “told [her]
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                                     No. 13-10948
that [she] was being arrested on some sort of drug related charges.” However,
the record is devoid of evidence that shows that Deputy Smith conducted the
actual search of her purse, personally found the methamphetamine, or
handcuffed her. In fact, he was not even present for any of these events.
Furthermore, Mrs. Alexander offers no authority to support her claim that an
officer is liable for an arrest even when he or she was not involved in the
decision to arrest the individual; was not present during the initial encounter,
questioning, search, and subsequent handcuffing of that individual; and did
not transport the individual to the sheriff’s office. 2 We agree with the district
court that Deputy Smith did not participate in the arrest of Mrs. Alexander
and, therefore, cannot be held liable for a constitutional violation. See Brown,
608 F.3d at 736–37; Oliver, 276 F.3d at 741.
                               IV.    Protective Sweep
      The Alexanders claim that Deputy Smith violated their Fourth
Amendment rights when he, along with other officers, conducted a warrantless
search of their home.         Deputy Smith counters that the search was a
constitutionally permissible protective sweep, limited in time and scope. We
agree.
      Law enforcement officers may “perform cursory ‘protective sweeps’ of
larger areas if they have articulable facts plus rational inferences that allow a
reasonable officer to suspect that an individual dangerous to the officers is
within the area to be searched.” United States v. Mata, 517 F.3d 279, 285 (5th
Cir. 2008) (citing Maryland v. Buie, 494 U.S. 325, 334 (1990)). While “[t]he
mere presence of illegal drugs and weapons does not justify a protective



      2 Mrs. Alexander’s affidavit claims that Deputy Smith placed her in the squad car;
Deputy Smith’s affidavit denies that. However, placing someone who has been arrested in a
squad car after the arrest does not amount to an “arrest” within the meaning of the Fourth
Amendment.
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                                 No. 13-10948
sweep[,] . . . a sweep is permissible where necessary to prevent the possible
destruction of the drugs, especially where this danger is combined with
reasonable concern for the safety of officers or civilians.” United States v.
Watson, 273 F.3d 599, 603 (5th Cir. 2001) (citations omitted). The belief that
an accomplice might be inside a house, even when the factual basis is
disputable, supports a finding that the drugs might be destroyed or that there
might be a threat to the officers’ safety. Cf. id. Even when the arrest occurs
outside a house, law enforcement officers may conduct a protective sweep
inside that house when the officers have “reasonable grounds to believe there
[are] people inside the house who pose[] a security risk.” United States v.
Mendez, 431 F.3d 420, 428 (5th Cir. 2005).
      Here, the district court agreed with Deputy Smith, finding that Deputy
Smith possessed a reasonable belief based on specific and articulable facts that
the home harbored an individual posing a danger to Deputy Smith or others.
In support of this conclusion, the district court relied on the fact that Mr.
Alexander’s adult son, who was known to have a drug-related criminal history,
lived in the residence with the Alexanders, but the son was unaccounted for at
the time of the arrest. Additionally, there was a vehicle parked in the
Alexanders’ driveway that Deputy Smith believed belonged to an individual
affiliated with drug use, and he was also unaccounted for.
      The district court did not err in concluding that the search was a
justifiable protective sweep. While the Alexanders’ emphasize that, viewing
the facts in their favor, they were not found to be in possession of drugs at the
time of the incident, they present no evidence that contradicts the numerous
other facts suggesting that their home contained drugs and at least one other
person. Deputy Smith’s decision to perform a protective sweep was based on
his knowledge that: the Alexanders’ had known drug affiliations; Mr.
Alexander had just been arrested on an outstanding warrant relating to drugs;
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                                No. 13-10948
Mrs. Alexander had just tested positive for drugs; and Mr. Alexander’s adult
and/or another individual affiliated with drug use was inside the Alexander
residence. Cf. Mata, 517 F.3d at 285; Mendez, 431 F.3d at 428. Additionally,
there is no evidence in the record that suggests that the protective sweep was
not limited in time and scope. Therefore, Deputy Smith did not violate the
Alexanders’ constitutional rights by conducting a protective sweep of their
home while waiting for the search warrant to be authorized.
                               V.    Conclusion
      For the foregoing reason, we AFFIRM the judgment of the district court.




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