           Case: 16-11462   Date Filed: 12/19/2016   Page: 1 of 12


                                                         [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11462
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 6:14-cv-01045-ACC-GJK



ADRIA HILL,

                                                            Plaintiff-Appellant,

                                 versus

ORANGE COUNTY SHERIFF, Jerry L. Demings,
JOSEPH M. COVELLI,

                                                         Defendants-Appellees.

                       ________________________

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

                            (December 19, 2016)

Before MARTIN, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Adria Hill brought this § 1983 action for damages in Florida state court

against Orange County Sheriff Jerry L. Demings and Corporal Joseph M. Covelli.

She alleged that her constitutional rights were violated when law enforcement

officers entered her home without a warrant. The suit was later removed to federal

court. The district court granted the defendants summary judgment, finding that

Corporal Covelli was entitled to qualified immunity and that Sheriff Demings was

not subject to supervisory liability. After careful review, we affirm.

                                          I.

      Around 10:30 AM on June 16, 2011, a man entered an Underground Station

clothing store at a mall and asked an employee to get some shoes from the back of

the store for him. When the employee went to the stock room to get the shoes, the

man followed her there, pointed a gun at her, and struck her twice in the face

before pushing her to the ground. While holding the employee at gunpoint, the

man took $300 from the cash register. Then, the man tied the employee’s hands

and legs, covered her mouth with tape, and locked her in the bathroom before

leaving the store with the money and a pair of shoes.

      Video surveillance footage from the Sears store in the same mall depicted a

man entering Sears at 10:17 AM and leaving at 10:45 AM. When he left, the man

ran toward a bus stop located on an access road. He was carrying what looked like

Underground Station bags. The Orange County Sheriff’s Office (“Sheriff’s


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Office”) used this footage to release photographs of the man for identification

purposes. On June 21, the Sheriff’s Office received several tips identifying the

man as Collie P. White. That same day, the Underground Station employee

selected White’s photograph out of a lineup, identifying him as the perpetrator of

the crime. The Sheriff’s Office secured an arrest warrant for White on charges of

robbery with a firearm (a first-degree felony), kidnapping with intent to inflict

bodily harm or terrorize with a firearm (a life felony), aggravated assault with a

firearm, and battery. The Sheriff’s Office’s Tactical Surveillance and

Apprehension Team (the “Team”), led by Sergeant Ricky Stelter, commenced an

investigation to locate and apprehend White.

      The very next day, June 22, 2011, the Sheriff’s Office received a court order

authorizing surveillance of White’s cellular phone. This surveillance allowed the

Sheriff’s Office to get geolocation data for White’s phone from his cellular phone

carrier. By sending signals that communicate with White’s phone through the

carrier’s phone towers—a process called “pinging”—the carrier could generate

estimates of the phone’s location within error rates measured in meters.

      That same day, the Team received notification that White’s phone had

pinged from a street named Woodman Way in Orlando, Florida. Based on this

information, the Team set up covert visual surveillance on Woodman Way and the

surrounding area. Team officers communicated with each other from their covert


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locations via radio. While the Team surveilled the area, one officer announced

over the radio that he had spotted White near a multi-family residence located at

1160 Woodman Way, and that White looked back at him through binoculars.

Another Team officer drove his unmarked vehicle onto Woodman Way to confirm

the identification, and promptly announced over the radio that he had seen White

look in his direction before turning and rushing into 1160 Woodman Way.

         Corporal Covelli, another officer on the Team, heard both of these

announcements over the radio. He then heard Sergeant Stelter instruct the Team to

enter the residence and apprehend White. Along with other officers, Corporal

Covelli approached the residence. Adria Hill, an African-American tenant of one

of the units in the building, had just locked her front door when she saw the

officers approach at around 7:00 PM. The officers then used some sort of device

to “bust in the door” and began their search. Hill asked one of the officers to

produce a search warrant, but the officer told her they did not need one. The Team

did not find White in Hill’s home and believed that White escaped out the back

door. Hill says that White was never in her home at any time that day. After

searching Hill’s home, the Team entered the homes of all but one of Hill’s

neighbors—each of whom was African-American—to search for White, but to no

avail.




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                                          II.

      The district court granted summary judgment in favor of the defendants. We

review de novo the district court’s grant of summary judgment, considering the

evidence and all reasonable inferences from it in the light most favorable to the

nonmoving party. Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir. 2008).

Summary judgment is appropriate only “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); see also Celotex Corp. v. Catrett, 477 U.S.

317, 323, 106 S. Ct. 2548, 2552 (1986).

                                          A.

      With respect to Hill’s Fourth Amendment claim, the district court held that

Corporal Covelli was entitled to qualified immunity because his warrantless entry

and search of Hill’s home did not amount to a constitutional violation, and

alternatively, because any violated right was not clearly established at the time of

the violation. Hill does not dispute that Corporal Covelli was acting within the

scope of his discretionary authority, as he entered Hill’s home in order to

apprehend a suspect for violent offenses. Thus, Hill bears the burden of showing

that qualified immunity is not appropriate. See Lee v. Ferraro, 284 F.3d 1188,

1194 (11th Cir. 2002). We conduct a two-step inquiry to decide whether qualified

immunity should be granted: (1) “taken in the light most favorable to the party


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asserting the injury, do the facts alleged show the officer’s conduct violated a

constitutional right;” and (2) “[i]f a constitutional right would have been violated

under the plaintiff’s version of the facts, [we] must then determine whether the

right was clearly established.” Id. (quotation omitted) (alteration adopted).

      When determining whether a constitutional right was “clearly established,”

our inquiry is limited to the law at the time of the incident, as “an official could not

reasonably be expected to anticipate subsequent legal developments.” Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). Further, “[i]n this

circuit, the law can be ‘clearly established’ for qualified immunity purposes only

by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the

highest court of the state where the case arose.” Jenkins by Hall v. Talladega City

Bd. of Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997) (en banc). A plaintiff can

show that a constitutional right was clearly established in three different ways: “(1)

case law with indistinguishable facts clearly establishing the constitutional right;

(2) a broad statement of principle within the Constitution, statute, or case law that

clearly establishes a constitutional right; or (3) conduct so egregious that a

constitutional right was clearly violated, even in the total absence of case law.”

Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291–92 (11th Cir. 2009)

(citations omitted).




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      Because we must operate under the plaintiff’s version of the facts and

construe all ambiguous evidence in her favor, we assume that White was never in

Hill’s home on the day of the incident. See Lee, 284 F.3d at 1194. However, even

under this assumption, we agree with the district court that Hill has not met her

burden of demonstrating that Corporal Covelli violated a clearly established Fourth

Amendment right.

       The Fourth Amendment establishes a right against non-consensual

warrantless entry into one’s home unless probable cause and exigent circumstances

exist. United States v. Ramos, 933 F.2d 968, 972 (11th Cir. 1991). The Team had

secured an arrest warrant for White based on identification tips and the victim’s

photo-lineup identification, which constitutes probable cause to arrest him. See

Black v. Wigington, 811 F.3d 1259, 1267 (11th Cir. 2016); see also United States

v. Watson, 423 U.S. 411, 423, 96 S. Ct. 820, 827 (1976). But, Corporal Covelli

entered Hill’s home without a warrant. Thus, Hill’s Fourth Amendment right

against Corporal Covelli’s warrantless entry of her home was clearly established

only if there was, at the time, clear binding precedent establishing no exigent

circumstances existed when the Team entered Hill’s home.

      Exigent circumstances may arise from a variety of situations, including

when there is “hot pursuit of a fleeing felon, or imminent destruction of evidence,

or the need to prevent a suspect’s escape, or the risk of danger to the police or to


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other persons inside or outside the dwelling.” Minnesota v. Olson, 495 U.S. 91,

100, 110 S. Ct. 1684, 1690 (1990) (quotation and citation omitted). Because the

man who committed the crime here had escaped and gone several days without

being apprehended by the police, this case does not involve hot pursuit. See

Stanton v. Sims, 571 U.S. ___, 134 S. Ct. 3, 6 (2013) (per curiam) (explaining that

the hot pursuit doctrine does not apply where there is “no immediate or continuous

pursuit of [the suspect] from the scene of a crime” (quotation omitted)). But in any

event, we determine whether exigent circumstances existed by looking at the

totality of the circumstances. Gennusa v. Canova, 748 F.3d 1103, 1115 (11th Cir.

2014) (citing Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552, 1559 (2013)).

Some of the factors we consider include the gravity of the offense with which the

suspect was charged; whether there was reason to believe that the suspect was in

the premises the officers entered and was armed; and whether delay could have

allowed the suspect to escape or jeopardize the safety of the officers or the public.

See Ramos, 933 F.2d at 972. Exigent circumstances are evaluated on an objective

basis. United States v. Young, 909 F.2d 442, 446 (11th Cir. 1990).

       Looking at the totality of the circumstances, we cannot say that exigent

circumstances clearly did not exist here. White was charged with serious felonies

that were violent in nature, including armed robbery and kidnapping with intent to

inflict harm or terrorize with a firearm. Corporal Covelli had good reason to


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believe that White was inside Hill’s home. While investigating the case, the Team

used cellular phone surveillance technology to track White’s cell phone to

Woodman Way. Then, after setting up covert surveillance of that area, Corporal

Covelli heard two different fellow officers announce over the radio that they had

spotted White in the vicinity of 1160 Woodman Way and that White had rushed

into that building. Even assuming, as we must, that the officers were mistaken in

some way, a reasonable officer in Corporal Covelli’s position would have strong

reason to believe that White was inside Hill’s home. Because White was suspected

of violent offenses involving the use of a firearm, it was reasonable to believe that

White continued to be armed and dangerous. Finally, Corporal Covelli had reason

to believe that any delay on his part could allow White to escape or cause harm to

others. Specifically, the fact that the offenses for which White was a suspect

involved the use of a firearm raised a reasonable concern that White might use a

firearm in his escape. See Warden v. Hayden, 387 U.S. 294, 298–99, 87 S. Ct.

1642, 1645–46 (1997) (noting that exigent circumstances existed because the

suspect had committed an armed robbery and any delay in investigation “would

gravely endanger [the officers’] lives or the lives of others”). We therefore affirm

the district court’s ruling that Corporal Covelli was entitled to qualified immunity

with respect to Hill’s Fourth Amendment claim.




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                                          B.

      The district court also rejected Hill’s Fifth and Fourteenth Amendment

claims by noting that the Fifth Amendment does not apply to state actors and

finding that Hill has not provided enough factual allegations to support a

Fourteenth Amendment equal protection claim. On appeal, Hill argues that the

district court erred by granting summary judgment for Corporal Covelli because

Corporal Covelli and the other officers would not have entered the homes of

Caucasian citizens without a warrant.

      We affirm the district court’s finding that Hill has not provided sufficient

factual support to survive summary judgment on her equal protection claim. In

order to prevail on a racial discrimination claim, a plaintiff must prove, among

other things, that the state’s actions were racially motivated. See City of Cuyahoga

Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194, 123 S. Ct. 1389, 1394

(2003) (“We have made clear that proof of racially discriminatory intent or

purpose is required to show a violation of the Equal Protection Clause.” (quotation

omitted) (alteration adopted)). Thus, to get past summary judgment on an equal

protection claim, a plaintiff must produce enough evidence to allow a reasonable

trier of fact to find racially discriminatory intent. See Redwing Carriers, Inc. v.

Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (defining a “genuine”




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issue of fact within the meaning of the summary judgment standard in Federal Rule

of Civil Procedure 56(c)).

      Hill supports her argument by pointing out that she and her neighbors are

African American. However, that fact alone does not raise a genuine issue as to

whether Corporal Covelli acted with discriminatory intent when he entered Hill’s

home under Sergeant Stelter’s directions to apprehend a crime suspect. On this

record, we also affirm the district court’s grant of summary judgment in favor of

Corporal Covelli on Hill’s Fourteenth Amendment claim.

                                          C.

      Finally, the district court granted summary judgment for Sheriff Demings,

the Orange County Sheriff, on Hill’s supervisory liability claim because Corporal

Covelli had not violated any of Hill’s constitutional rights. On appeal, Hill argues

that Sheriff Demings’s failure to train his deputies caused them to violate her

constitutional rights.

       Officers facing supervisory liability claims are entitled to qualified

immunity unless the plaintiff states a violation of a clearly established

constitutional right. See Harper v. Lawrence Cty., 592 F.3d 1227, 1236–37 (11th

Cir. 2010). Because Hill has not met her burden of demonstrating that any

members of the Sheriff’s Office violated a clearly established constitutional right,




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Sheriff Demings is entitled to qualified immunity. We therefore affirm the district

court’s grant of summary judgment for Sheriff Demings.

      AFFIRMED.




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