                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT
                           _______________________

                                No. 98-21047
                          _______________________


                                 TOMMY E. SWATE,

                                                          Plaintiff-Appellee,

                                        versus

                          BRUCE TAYLOR, ET. AL.,

                                                                   Defendants,

                                 TERESA L. HAYTH,

                                                         Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                           (H-94-CV-727)
_________________________________________________________________


                                   June 8, 2000

Before JONES and BENAVIDES, Circuit Judges, COBB, District Judge.*

PER CURIAM:**

            Dr. Swate’s medical clinic was searched by DEA Agent Pack

and others pursuant to warrants that suggested Swate was illegally

dispensing    methadone     to    his    patients.     Officer   Pack   invited


      *
            District    Judge    for   the Eastern District of Texas, sitting by
designation.

     **
         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should not be published and is not precedent except under the limited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.
television crews to accompany her on two of the searches, and some

of the events that transpired were later broadcast.     (Search in

April 1992, and the officers permitted, not invited).

          Dr. Swate sued Pack and other DEA officers for violation

of his Fourth Amendment rights under a Bivens theory, because it

violated his right of privacy for the news media to accompany the

officers in their search.

          The district court agreed with Dr. Swate and granted

summary judgment denying immunity to Pack and granting partial

judgment on liability.   All other officials and issues have been

resolved, and the only question on appeal is the district court’s

ruling against Pack.

          As the parties are aware, the U.S. Supreme Court recently

held that law enforcement officers were entitled to qualified

immunity when they permitted the media to accompany them on the

search of a private residence, even though the search itself was

unconstitutional.   Wilson v. Layne, 526 U.S. ____, S.Ct. _____

(1999).   The search in Wilson occurred, like this one, in 1992.

While the court found that a constitutional violation had occurred,

it also held that the law was not “clearly established” at that

time that the search was unconstitutional.     Since the scope of

qualified immunity depends upon public officials’ violating clearly

established legal rights, i.e. those rights which are plainly




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known, and no such plain law prohibited the media’s attendance on

searches of private homes, immunity was required.

            The only material difference between this case and Wilson

is that the DEA searched Dr. Swate’s office, not his residence.

This factor, however, favors Officer Pack.           For the Supreme Court

expressly footed Wilson on the long standing expectation of privacy

in a person’s dwelling.      Whether similar expectations apply to a

place of business was not decided by the court.                    The court’s

holding that an accompanied search of a residence was not clearly

established in 1992 compels the holding in this case that the

accompanied search of business premises, even if unconstitutional,

could not have been clearly established then.

            Because the constitutionality of the search in this case

was not   clearly     established,   the    DEA   officer    is    entitled   to

qualified immunity.

            The factors on which Dr. Swate relies in attempting to

distinguish this case from Wilson are unpersuasive.               Swate waived

the argument he now raises concerning the validity of the warrant;

in a district court, it was undisputed that Pack engaged in the

search pursuant to valid warrants.         Further, Swate’s newly raised

contention     concerning     his        expectation    of        privacy     in

physical/patient records is irrelevant. Texas law does not furnish

the basis for determining the reasonableness of official conduct

under the    Fourth    Amendment.    Davis     v.   Scherer,      insert    cite.

Finally, it is meaningless to assert that while the media who

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searched the Wilsons’ house did not publish pictures, they were

broadcast on national and local television of the search made here.

          Because Wilson compels a finding of qualified immunity

for appellant Pack, the judgment of the district court denying

qualified immunity and granting partial summary judgment for Dr.

Swate is REVERSED.




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