                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 06-15513                     May 25, 2007
                         Non-Argument Calendar            THOMAS K. KAHN
                       ________________________                CLERK

                   D.C. Docket No. 05-00347-CV-CC-1

CAROLYN DOCKERY,

                                                     Plaintiff-Appellant,

                                  versus

JACK DOYLE,
DEBRA MILLER,
J.H. HARRIS,
OFFICER PATTERSON,

                                                     Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (May25, 2007)

Before TJOFLAT, HULL and COX, Circuit Judges.

PER CURIAM:
       On this appeal, the Plaintiff Carolyn Dockery (“Dockery”) challenges the

district court’s denial of her motion for summary judgment and its grant of summary

judgment to Defendant Pamela Patterson on Dockery’s 42 U.S.C. § 1983 claims. The

court found that Patterson’s warrantless search of Dockery’s apartment did not violate

Dockery’s Fourth Amendment constitutional rights. The court also concluded that

Patterson is entitled to qualified immunity as to Dockery’s claims.1

                                     I. BACKGROUND2

       On September 30, 2003, Detective Patterson met two officers and another

detective from the DeKalb County Police Department at Towering Pines Apartments.

(R.1-37 at 3.) Their purpose was to question Courtney Dockery about an armed

robbery and aggravated assault. (Id.) Courtney lived with his mother, Carolyn, and

brother, Marques, in one of these apartments.

       The officers considered Towering Pines to be a high crime area. (R.1-36,

“Affidavit of Pamela Patterson” at 3.) Upon arriving at the apartment, Patterson

noticed that the front door was “cracked open.” (Id. at 4.) Another officer saw that

the doorframe had small marks, which he believed indicated forced entry. (R.1-36,


       1
          Dockery’s notice of appeal names all the Defendants (R.1-64), but on appeal she seeks
reversal only as to Patterson.
       2
          We draw the “facts and reasonable inferences in the light most favorable to the nonmoving
party.” Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1283 (11th Cir. 2003).

                                                2
“Affidavit of Scott R. Malette” at 3.) The officers knocked and announced “DeKalb

Police.” (R.1-36, “Affidavit of Pamela Patterson” at 4.) No one responded. (Id.)

      While knocking, one officer heard noises from inside. (R.1-36, “Affidavit of

Scott R. Malette” at 3.) The officer said the noises sounded like footsteps. (Id.) The

officers concluded that a forcible felony was occurring. (R.1-36, “Affidavit of

Pamela Patterson” at 5.) The officers opened the door, while continuing to knock and

announce “police.” (Id.)

      The officers walked down a hallway and encountered Marques in a back room.

(Id. at 7.) Patterson asked that Marques show photo identification, which he did. (Id.)

Marques explained that his mother was at work; that she could not be reached by

telephone; and that Courtney was not home. (Id.) The officers then left. (Id. at 8.)

      Dockery called Patterson that evening. (Id.) Patterson explained that they had

entered believing a forced-entry felony was in progress. (Id.) Patterson visited the

next day, and Dockery gave written consent for a search of the apartment. (Id.)

Patterson subsequently obtained a warrant for the arrest of Courtney. (Id. at 9.) He

was eventually arrested, convicted of aggravated assault and armed robbery, and

sentenced to ten years in prison. (Id.)




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          II. ISSUES ON APPEAL AND CONTENTION OF THE PARTIES

      Dockery asserts that: (1) the court misapplied the summary judgment standards

in rendering its decision in favor of Patterson; (2) the court erroneously found that

Patterson met her burden of showing probable cause and exigent circumstances; and

(3) the court erred in granting Patterson qualified immunity.

      Patterson contends that the search did not violate Dockery’s constitutional

rights.    Moreover, Patterson contends that even if Dockery could prove a

constitutional violation, she is entitled to qualified immunity.

                                 III. DISCUSSION

      A.     Summary Judgment

      Dockery contends that the court misapplied the summary judgment standards,

failing to view the evidence and all factual inferences in the light most favorable to

her, the non-moving party. We find no reversible error, however, in the court’s

application of summary judgment standards or in its view of the facts.

      B.     The Fourth Amendment

      To establish a claim under 42 U.S.C. § 1983, a plaintiff must show that she was

deprived of a right secured under the U.S. Constitution or federal law and that such

a deprivation occurred under color of state law. Arrington v. Cobb County, 139 F.3d

865, 872 (11th Cir. 1998). We conclude that the question of whether the Fourth

                                          4
Amendment was violated is a difficult one, and we therefore assume arguendo that

Patterson violated Dockery’s Fourth Amendment rights, and turn to the qualified

immunity issue, which we find easier to resolve.

      C.       Qualified Immunity

      “Qualified immunity shields a § 1983 defendant from liability for harms arising

from discretionary acts, as long as the discretionary acts do not violate clearly

established federal statutory or constitutional rights of which a reasonable person

would have known.” Jackson v. Sauls, 206 F.3d 1156, 1164 (11th Cir. 2000).

Dockery contends that clearly established law gave Patterson notice that this search

did not fall into the exigent circumstances exception to the Fourth Amendment. She

cites United States v. Holloway, 290 F.3d 1331 (11th Cir. 2002) and United States v.

Burgos, 720 F.2d 1520 (11th Cir. 1983) as the clearly established law that provided

this notice.

      In Holloway, F.3d at 1338, this court held that, based on the exigent

circumstances of a 911 call reporting arguing and gunshots, “police officers in this

case did not violate the Fourth Amendment when they conducted a warrantless search

of Appellant’s home.” In Burgos, F.2d at 1526, we held that although agents

conducted a warrantless search of defendant’s home, the “threat of injury to the

neighborhood and arresting officers justified the avoidance of delay involved in

                                         5
obtaining a warrant.” Nothing in these decisions establishes that Patterson’s conduct

violated the Fourth Amendment.

       We have recognized an “emergency” exception to the Fourth Amendment’s

warrant requirement. Where officers reasonably believe that a person is in danger,

and immediate response is required, the “emergency” exception applies. Holloway,

290 F.3d at 1331. However, the Defendant must show both probable cause3 and

exigency. Id. at 1337. Based on the facts presented and the totality of the

circumstances, we conclude that Patterson demonstrated arguable probable cause and

exigency. The totality of the circumstances included “a visibly unsecured door . . .

the rampant burglaries and crimes in Towering Pines Apartment complex . . . and

[Patterson’s] knowledge, through a fellow officer, that noises were heard in the

apartment.” (R.1-36, “Affidavit of Pamela Patterson” at 5-6.) Additionally, another

officer testified that “there were small tool marks on the doorframe, which appeared

to be indicative of the use of some small, sharp tool.” (R.1-36, “Affidavit of Scott R.

Malette” at 3.) The “facts and circumstances within the collective knowledge of the

law enforcement officials . . . are sufficient to cause a person of reasonable caution

to believe that an offense has been or is being committed.” United States v. Blasco,



       3
         “Arguable probable cause, not the higher standard of actual probable cause, governs the
qualified immunity inquiry.” Jones v. Cannon, 174 F.3d 1271, 1283 n.3 (11th Cir. 1999).

                                               6
702 F.2d 1315, 1324 (11th Cir. 1983). Therefore, we find no error in the district

court’s conclusion that Patterson is entitled to qualified immunity.

                                IV. CONCLUSION

      For the foregoing reasons, we affirm the district court’s denial of Dockery’s

motion for summary judgment and the grant of summary judgment to Patterson.

      AFFIRMED.




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