                                                               [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-11242         ELEVENTH CIRCUIT
                                                                 SEPTEMBER 19, 2011
                                        Non-Argument Calendar
                                                                      JOHN LEY
                                      ________________________
                                                                       CLERK

                                D.C. Docket No. 1:09-cv-20936-MGC



ELDRICK BROWN,

lllllllllllllllllllllllllllllllllllllll     l                        Plaintiff-Appellee,

                                                versus

RODERICK PASSMORE,
Pin # 5532
WILLIAM GOINS,
Pin# 2372
DARION WILLIAMS,
Pin# 7647
WILLIAM COOK,
Pin# 1184

llllllllllllllllllllllllllllllllllllllll                        Defendants-Appellants,

REGINALD KINCHEN,
Sgt., Pin# 3622

lllllllllllllllllllllllllllllllllllllllll                                   Defendant.
                           ________________________

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

                               (September 19, 2011)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Roderick Passmore, Darion Williams, William Cook, and William Goins,

officers with the Miami Police Department (collectively, “Defendants”), appeal

the district court’s denial of their motion for summary judgment based on qualified

immunity. Eldrick Brown filed a pro se 42 U.S.C. § 1983 civil rights complaint

against Defendants, alleging that they entered and searched his house without a

warrant in violation of the Fourth Amendment. The parties offered different

versions of the event. Defendants allege that (1) they observed Brown and another

individual engaging in suspected drug sales outside the residence; (2) when Brown

fled into his residence, two officers, who are not named defendants, pursued and

arrested Brown; (3) the two officers then observed drugs in plain view inside the

residence; and (4) the named Defendants had no involvement with the entry and

search of Brown’s residence or his arrest. Brown, however, claims that he was

sleeping and was not selling drugs, the officers did not find drugs in his house or

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on his person, and the officers entered and searched his house without a warrant or

exigent circumstances. Based on these conflicting accounts and inconsistencies in

Defendants’ evidentiary exhibits, the district court found that there were genuine

issues of fact that precluded summary judgment.

      Defendants argue that the district court erred in denying summary judgment

because, based on the “undisputed facts,” there was arguable probable cause and

exigent circumstances to search the premises without a warrant. They also assert

that Brown’s contention that no drugs were in the home is immaterial because the

appeal does not involve a challenge to his arrest, but to the lawfulness of the

search. Defendants claim that the law was not clearly established regarding the

“undisputed circumstances” of the search, and thus they were entitled to qualified

immunity and summary judgment.

      “We review the denial of summary judgment on qualified immunity grounds

de novo,” Reams v. Irvin, 561 F.3d 1258, 1262–63 (11th Cir. 2009), considering

             all evidence and reasonable factual inferences drawn
             therefrom in a light most favorable to the non-moving
             party. Summary judgment is appropriate if the pleadings,
             depositions, answers to interrogatories, and admissions on
             file, together with the affidavits, if any, show there is no
             genuine issue as to any material fact and that the moving
             party is entitled to judgment as a matter of law.

Crawford v. Carroll, 529 F.3d 961, 964 (11th Cir. 2008) (citations omitted). “The

                                          3
moving party bears the initial burden of showing the court . . . that there are no

genuine issues of material fact that should be decided at trial.” Allen v. Bd. of Pub.

Educ., 495 F.3d 1306, 1313 (11th Cir. 2007).

      Once the moving party satisfies that initial showing, the burden of

persuasion shifts to the non-moving party to produce evidence to establish the

existence of a genuine issue for trial. See id. at 1314. “Where the record taken as

a whole could not lead a rational trier of fact to find for the nonmoving party, there

is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (internal

quotation marks omitted). When there are opposing versions of the facts, and one

version is “blatantly contradicted by the record,” a court should not consider the

contradicted version in deciding a motion for summary judgment. Id.

      To state a claim under § 1983, a plaintiff must establish that he was

“deprived of a right secured by the Constitution or laws of the United States, and

that the alleged deprivation was committed under color of state law.” American

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). Under the Fourth

Amendment, warrantless searches and seizures in a home are presumptively

unreasonable, and thus deprive individuals of the right the amendment secures.

Bates v. Harvey, 518 F.3d 1233, 1239 (11th Cir. 2008). The search or seizure is

lawful “only when some exception to the warrant requirement—such as consent or

                                          4
exigent circumstances—exists.” Id. Exigent circumstances include, inter alia,

“hot pursuit of a suspect [and] risk of removal or destruction of evidence.” Id. at

1245.

        Although Defendants phrase the issue as whether they were entitled to

qualified immunity based on the “undisputed” facts, they do not address the

findings of the district court—i.e., that there were a number of specific genuine

issues of fact. For example, Defendants presented a version of facts in which they

observed Brown and another individual engaging in suspected drug transactions

outside of Brown’s residence. When the officers approached Brown, they claim

he fled into his residence. At that point, two officers who are not named

defendants pursued Brown, arrested him, and viewed drugs on a table. Defendants

assert that none of the named Defendants arrested Brown or entered his residence.

        Brown, however, testified under oath at his deposition to a different version

of the facts. Brown testified that he was sleeping when Defendants forced entry

into his residence without a warrant, where they searched his entire residence and,

in the process, damaged his belongings. Brown is adamant that the officers found

no drugs within his house. Under Brown’s version of the facts, Defendants

violated his Fourth Amendment rights by searching his house without a warrant,

consent, or exigent circumstances. See id. at 1239. Based on these conflicting

                                           5
accounts, the district court did not err in denying summary judgment.

      We also note that Defendants’ reliance on Harris is misplaced. Specifically,

in Harris the defendant police officers introduced an objective piece of

evidence—a videotape—which blatantly contradicted the plaintiff’s version of the

facts. Harris, 550 U.S. at 378–80 (explaining how the videotape of the car chase

clearly contradicted the plaintiff’s contention that he was not driving in a manner

that endangered pedestrians or other motorists, and, accordingly, the court need

not credit that statement). In the instant case, Defendants’ only objective evidence

is the property receipt and court documents—both of which contain discrepancies.

While the property receipt would support Defendants’ assertion that drugs were

found at Brown’s residence, it is dated one day before Brown’s arrest. It also lists

only one green bag of cocaine, while the arrest affidavit lists fifteen. Defendants

did not explain, either to the district court or on appeal, why their evidence

showed the drugs in police possession one day before they were allegedly found in

Brown’s residence, or why there was a discrepancy in the number of bags

purportedly seized. The property receipt does not clearly support Defendants’

version of the facts, as did the videotape in Harris.

      Moreover, the court documents contradict Defendants’ version of the facts

and supported Brown’s version. Specifically, the resisting-arrest charge (to which

                                          6
Brown pleaded guilty) stated that Brown resisted “Officer R. Passmore.” This

objective evidence clearly contradicts Defendants’ contentions, as they all claim

that none of them interacted with Brown. Defendants have not explained how

Passmore allegedly did not have contact with Brown, yet Brown was charged with

resisting Passmore. Thus, this exhibit supports Brown’s claim that he had direct

contact with Passmore.

      Because there is no objective evidence that “blatantly” contradicts Brown’s

version, the district court was correct in viewing the facts in the light most

favorable to Brown, the non-moving party. The district court did not err in finding

that there were genuine issues of material fact, and appropriately denied

Defendants’ motion for summary judgment.

      AFFIRMED.




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