                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                    February 21, 2007

                                                              Charles R. Fulbruge III
                             No. 06-41177                             Clerk
                           Summary Calendar




EDWARD J. MARTIN,
                                                   Plaintiff-Appellee,

v.

KLENT TIPTON,
                                                  Defendant-Appellant.



           Appeal from the United States District Court
                 for the Eastern District of Texas
                           (9:05-CV-119)


Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Edward D. Martin brought a 42 U.S.C. §

1983 suit against Defendant-Appellant Klent Tipton, alleging that

he violated Martin’s Fourth Amendment rights.           Tipton files this

interlocutory   appeal   challenging   the   district    court’s    partial

denial of his motion for summary judgment on qualified immunity

grounds.   As we do not have jurisdiction over this appeal, we

dismiss.




     *
       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this opinion should not be published and is not precedent except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.
        On April 3, 2005, at 5:19 p.m., Tipton, a Texas State Trooper,

pulled over Martin because he was driving 66 mph in a 65 mph zone.

After briefly questioning Martin, Tipton requested that a K-9

officer       be   brought   to   the   scene.       The   K-9   officer   arrived

approximately 30 minutes later with a trained dog.                   After the dog

made a positive alert on an odor from Martin’s vehicle, Tipton

searched the car. Although Tipton testified he found a leafy green

substance that he believed to be marijuana residue in the trunk of

the car, he did not remove this substance, and Martin disputes that

this substance was marijuana.            Approximately one hour and forty-

five minutes elapsed from the initial stop until Tipton informed

Martin he was free to leave.

        Martin filed this action, alleging that the initial stop, the

prolonged detention, and the search of his vehicle, during which

Martin contends his car was “trashed,” deprived him of his Fourth

Amendment right to be free from unreasonable searches and seizures.

Tipton filed a motion for summary judgment on qualified immunity

grounds. The district court granted the motion with respect to the

initial stop but denied it with respect to the post-stop detention

and the search.         Tipton timely filed this interlocutory appeal.

        A    district   court’s    order       denying   qualified    immunity   is

immediately appealable to the extent that it turns on an issue of

law.1       Nevertheless, “a defendant, entitled to invoke a qualified


        1
               Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006)

                                           2
immunity   defense,    may   not   appeal    a   district     court's    summary

judgment order insofar as that order determines whether or not the

pretrial record sets forth a genuine issue of fact for trial.”2               If

the defendant only argues that, contrary to the district court’s

determination, there is insufficient evidence in the record to

support the plaintiff’s version of the facts, the appellate courts

must dismiss the appeal for lack of jurisdiction.3                       We have

appellate jurisdiction only to determine whether Tipton is entitled

to qualified immunity as a matter of law when all facts are viewed

in the light most favorable to Martin.4

     To determine whether an official is entitled to qualified

immunity, the court asks (1) whether the plaintiff has alleged a

violation of a constitutional right and (2) whether the defendant’s

conduct    was    objectively   reasonable       in   light   of   the   clearly

established law at the time of the incident.5

     Tipton’s appeal, in essence, challenges the district court's

determination that “the pretrial record sets forth a genuine issue




     2
          Tamez v. City of San Marcos, 62 F.3d 123, 125 (5th Cir.
1995) (internal quotation marks and citation omitted).
     3
            See Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004)
(en banc).
     4
            Id.
     5
          McClendon v. City of Columbia, 305 F.3d 314, 322–23
(5th Cir. 2002).

                                      3
of fact for trial.”6    Although Tipton asserts that “[t]here are no

materially disputed facts in this case,” this contention ignores

the district court’s analysis of the facts in the summary judgment

record.    Tipton,     for   example,    casts   Martin   as   evasive   and

unresponsive, contending that this was part of Tipton’s basis for

the   post-stop   detention.      In    contrast,   the   district    court

concluded, based on its viewing of the videotape of the stop, that

      Martin appears calm and collected. He does not become
      angry or raise his voice, and he answers questions
      succinctly. He identifies where he is coming from and
      where he is going.       Martin discusses his previous
      employment and appears to try to answer the Officer’s
      questions truthfully.     While Martin was not overly
      cooperative or extremely forthcoming in his answers, his
      answers and demeanor as seen in the videotape of the
      incident do not, by themselves, or in conjunction with a
      messy car, establish, for summary judgment purposes, that
      a reasonable officer would have had suspicion of criminal
      activity sufficient to justify a detention of over 30
      minutes while waiting for a drug dog.

The district court further concluded that the questions raised by

the videotape were not answered by the summary judgment evidence.

      Tipton would have us evaluate the district court’s conclusion

that a jury could reject Tipton’s evaluation of Martin’s answers

and demeanor based on Martin’s demeanor in the videotape.            As “we

cannot challenge the district court's assessments regarding the

sufficiency of the evidence” on interlocutory appeal,7 we do not

have jurisdiction over this one.        Tipton’s interlocutory appeal of

      6
          Tamez v. City of San Marcos, 62 F.3d 123, 125 (5th Cir.
1995) (internal quotation marks and citation omitted).
      7
           Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004).

                                    4
the district court’s partial denial of qualified immunity is

therefore,

DISMISSED.




                             5
