     Case: 17-20245      Document: 00514741237         Page: 1    Date Filed: 11/29/2018




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                      No. 17-20245                           FILED
                                                                     November 29, 2018
                                                                        Lyle W. Cayce
BENEDICT EMESOWUM,                                                           Clerk

              Plaintiff - Appellee

v.

EDUARDO CRUZ; KIET TO,

              Defendants - Appellants




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CV-2822


Before HIGGINBOTHAM and HIGGINSON, Circuit Judges.*
STEPHEN A. HIGGINSON, Circuit Judge:**
       Pro se plaintiff Benedict Emesowum sued defendant Officers Eduardo
Cruz and Kiet To of the Houston Police Department pursuant to 42 U.S.C.
§ 1983, alleging excessive force, unlawful detention, and unlawful search in



       * Judge Edward C. Prado, a member of our original panel, retired from the court on
April 2, 2018, to become His Excellency the United States Ambassador to the Argentine
Republic. He therefore did not participate in this matter, which is decided by a quorum. See
28 U.S.C. § 46(d).
       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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violation of the Fourth Amendment. The officers moved for summary judgment
on grounds of qualified immunity. The district court denied the motion, and
the officers brought this interlocutory appeal. We affirm in part and reverse in
part.
                                        I.
                                        A.
        On July 20, 2015, shortly after 11:00 p.m., Houston police received a 911
call about a vehicle burglary in progress in a parking lot. The caller described
a black male breaking into a tan Toyota Corolla. Officer Eduardo Cruz of the
Houston Police Department responded to the call.
        When Cruz arrived on the scene, Benedict Emesowum was cleaning the
window of his Mercedes-Benz. According to Cruz, Emesowum was “holding an
object in his hand and motioning up and down on the driver’s side window of
the vehicle which was suspicious, because it looked as if he was trying to break
into the vehicle late at night.” Cruz parked, exited his police car, and
immediately placed Emesowum in handcuffs. Cruz concedes that Emesowum
complied with his commands. Kiet To, another Houston police officer, arrived
on the scene shortly after Cruz detained Emesowum.
        According to Emesowum, Cruz searched Emesowum after handcuffing
him and removed a wallet from Emesowum’s back pocket. Cruz then “dragged
and pushed” Emesowum to Cruz’s police car. Cruz emptied the contents of
Emesowum’s wallet on the trunk of the police car. While Cruz searched
Emesowum’s wallet, Emesowum stood handcuffed by the police car with his
car keys in his hand. Without first asking Emesowum for his keys, To
attempted to “pry” Emesowum’s keys from his hands. Emesowum refused to
release his keys, and To said “I will slam you on the concrete if [yo]u don’t let
go of the keys.” Cruz threatened Emesowum with a “beating” if he did not


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release the keys. To then forced the keys from Emesowum’s hand, cutting
Emesowum in the process.
      Cruz placed Emesowum in the back of his police car. While Emesowum
was in the car, Cruz ran a computer warrant search and To unsuccessfully
attempted to open Emesowum’s car using the key. To then asked Emesowum,
the supposed burglar, to explain “how the vehicle is normally opened.”
Emesowum responded that the key’s remote did not work because “the car
battery [had] been disconnected,” which meant that To would “ha[ve] to open
the vehicle from the passenger side with” with the physical key because
“Mercedes Benz vehicles such as [Emesowum’s] model did not have [a] manual
key entrance on the driver door.” After To unlocked the car with the key, both
officers searched it.
      According to To, he searched areas of the car that would typically contain
ownership documents, including the sun visor, the glove compartment, and
under the driver’s seat. After the search turned up empty, the officers released
Emesowum. The officers assert, and Emesowum does not dispute, that
Emesowum was detained for approximately twenty minutes. No party
suggests that Emesowum consented to any search.
                                       B.
      Proceeding pro se, Emesowum sued the City of Houston, its police chief
Charles McClelland, Cruz, and To in the United States District Court for the
Southern District of Texas. Emesowum alleged excessive force, unlawful
detention, and unlawful search under 42 U.S.C. § 1983.
      The defendants jointly moved for summary judgment. The district court
granted summary judgment on Emesowum’s claims against the City and
McClelland and on any state law claims against Cruz and To. The court denied
the motion as to Emesowum’s § 1983 claims against Cruz and To. In its order,


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the district court stated generally that the summary judgment evidence
created a genuine dispute of fact regarding Cruz and To’s entitlement to
qualified immunity, but did not specify particular facts. Cruz and To appealed,
invoking our jurisdiction under the collateral order doctrine. See generally
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We remanded to the district court
with instructions to specify the genuinely disputed facts that precluded entry
of summary judgment. The district court identified the following four facts:
            a) the plaintiff informed Officer Cruz, when Officer Cruz
      approached during the handcuffing and throughout the ordeal,
      that he owned the vehicle [and] that he was attempting to repair
      it;
            b) Officer Cruz moved from a “pat down” frisk for weapons,
      after handcuffing the plaintiff, to performing a record search to
      determine whether the plaintiff had outstanding warrants;
            c) Officer Cruz knew shortly after handcuffing the plaintiff
      that the plaintiff was not committing a burglary and that the
      vehicle belonged to him; and,
            d) Officer Cruz refused to remove the handcuffs from the
      plaintiff, and return[ed] the plaintiff’s wallet and keys only after
      he concluded the record[] search for warrants.

                                        II.
      Under the collateral order doctrine, a government official may
immediately appeal the denial of a motion for summary judgment based on
qualified immunity. Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en
banc). Our review in these cases is limited to issues of law; we have no
jurisdiction to second guess whether a genuine dispute of fact exists. Id.;
Johnson v. Jones, 515 U.S. 304, 313 (1995). In other words, “we can review the
materiality of any factual disputes, but not their genuineness.” Kinney v.
Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc) (quoting Wagner v. Bay
City, 227 F.3d 316, 320 (5th Cir. 2000)). A fact is material if it “might affect the
outcome of the suit under governing law.” Bazan ex rel. Bazan v. Hidalgo Cty.,


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246 F.3d 481, 489 (5th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). We review the district court’s materiality determination
de novo. Melton, 875 F.3d at 261.
       The plaintiff has the burden to rebut a government official’s good-faith
assertion of qualified immunity. Id. To prevail, Emesowum must show that: (1)
“the official violated a statutory or constitutional right,” and (2) “the right was
‘clearly established’ at the time of the challenged conduct.” Id. (quoting Morgan
v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc)). Because Emesowum
is the non-moving party, we view all facts and inferences in the light most
favorable to him. Id.
       The Supreme Court has “repeatedly told courts . . . not to define clearly
established law at a high level of generality.” Kisela v. Hughes, 138 S. Ct. 1148,
1152 (2018) (quoting City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765,
1775–76 (2015)). Accordingly, although we do not “require a case directly on
point for a right to be clearly established, existing precedent must have placed
the statutory or constitutional question beyond debate.” Id. (quoting White v.
Pauly, 137 S. Ct. 548, 551 (2017)). Because the question is whether the official
had fair notice, we look only to the law as developed at the time of the conduct.
Id.
                                             A.
       We begin with Emesowum’s contention that his detention violated the
Fourth Amendment’s protection against unreasonable searches and seizures. 1



       1  “To be liable under § 1983, [an officer] must have been personally involved in the
alleged constitutional deprivation or have engaged in wrongful conduct that is causally
connected to the constitutional violation.” Turner v. Lieutenant Driver, 848 F.3d 678, 695–96
(5th Cir. 2017). Although Cruz handcuffed Emesowum and placed him in the back of the
patrol car, the officers’ joint briefing before this court does not distinguish between the
officers’ roles or dispute the District Court’s implicit conclusion that To was “personally
involved” in Emesowum’s detention..

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To be “reasonable,” a warrantless arrest must ordinarily be supported by
probable cause. Kaupp v. Texas, 538 U.S. 626, 630 (2003). Cruz and To do not
argue that they had probable cause to arrest Emesowum.
      But not all detentions are arrests, and not all detentions must be based
on probable cause. “[T]he police can stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks
probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry
v. Ohio, 392 U.S. 1, 30 (1968)). To fall within this “limited exception” to the
usual probable-cause requirement, an investigative detention, or Terry stop,
“must be carefully tailored to its underlying justification.” Florida v. Royer, 460
U.S. 491, 498, 500 (1983). Whether any particular stop is reasonable varies
with the facts on the ground. Id. “This much, however, is clear: an investigative
detention must be temporary and last no longer than is necessary to effectuate
the purpose of the stop.” Id. at 500; see also United States v. Sharpe, 470 U.S.
675, 686 (1985) (“[W]e consider it appropriate to examine whether the police
diligently pursued a means of investigation that was likely to confirm or dispel
their suspicions quickly, during which time it was necessary to detain the
defendant.”); United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004)
(“Courts . . . inquire whether the officer’s subsequent actions were reasonably
related in scope to the circumstances that justified the stop.”).
      Here, even if the officers had reasonable suspicion to detain Emesowum,
the district court, viewing the facts in the light most favorable to Emesowum,
determined that the duration of his detention exceeded the permissible
boundaries of a Terry stop. We must, as noted, accept the district court’s
determination of genuine issues of fact, here that the officers knew shortly
after handcuffing Emesowum that he owned the Mercedes Benz and was not


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attempting to burglarize it. The officers found the car keys in Emesowum’s
hand and then asked his advice on how to open it. Once reasonable grounds for
suspecting that Emesowum was burglarizing the car were dispelled, the
“purpose of the stop” was completed. Royer, 460 U.S. at 500. Yet, on the facts
identified by the district court, the officers kept Emesowum handcuffed in the
back of Cruz’s police cruiser while they searched for ownership papers, despite
knowing “that the vehicle belonged to him.” Such continued detention is
unreasonable under the Fourth Amendment. See Johnson v. Thibodaux City,
887 F.3d 726, 734 (5th Cir. 2018) (investigative detention that “lasted longer
than necessary to effect the purpose of the stop” was unlawful); United States
v. Valadez, 267 F.3d 395, 398 (5th Cir. 2001) (“[O]nce an officer’s suspicions
have been verified or dispelled, the detention must end unless there is
additional articulable, reasonable suspicion.”); see also Royer, 460 U.S. at 498
(a person “may not be detained even momentarily without reasonable,
objective grounds for doing so”).
      It was clearly established at the time of this incident that “an
investigative detention must be temporary and last no longer than is necessary
to effectuate the purpose of the stop.” Royer, 460 U.S. at 500; see also Turner
v. Lieutenant Driver, 848 F.3d 678, 693–65 (5th Cir. 2017) (reversing grant of
motion to dismiss on qualified immunity grounds where detention amounted
to warrantless arrest); Freeman v. Gore, 483 F.3d 404, 413–14 (5th Cir. 2007)
(affirming denial of summary judgment based on qualified immunity in § 1983
suit for unlawful arrest); United States v. Brigham, 382 F.3d 500, 510 (5th Cir.
2004) (en banc) (collecting cases holding that continued questioning when
“there remained no reasonable suspicion of wrongdoing” unconstitutionally
prolonged detentions). At the time of Emesowum’s detention, no reasonable
officer could have concluded that the Fourth Amendment permitted detaining


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a person in handcuffs in the back of a police cruiser after the officer’s previously
reasonable suspicion had been dispelled, especially when the detention was
extended to give time for a search of the person’s car that was, as we explain
below, itself unlawful. See Valadez, 267 F.3d at 398 (detention became
unlawful once suspicion was dispelled). Accordingly, the genuine disputes of
fact are sufficient to meet Emesowum’s burden to overcome the officers’
assertion of qualified immunity on his claim of unlawful detention.
                                             B.
       Emesowum also contends that he was subjected to an unconstitutional
search when both officers searched his car. “A warrantless search is
presumptively unreasonable unless it falls within an exception to the Fourth
Amendment’s warrant requirement.” United States v. Guzman, 739 F.3d 241,
245–46 (5th Cir. 2014) (citing United States v. Karo, 468 U.S. 705, 717 (1984)).
One exception permits police to search a car if they have probable cause to
believe it contains contraband or evidence of a crime. Florida v. White, 526 U.S.
559, 563–64 (1999); United States v. Buchner, 7 F.3d 1149, 1154 (5th Cir. 1993).
As noted, the officers make no argument that they ever had probable cause to
believe Emesowum was burglarizing the Mercedes Benz. 2 Nor, on these facts,
could we find that the officers had probable cause at the time they searched
the car.
       Probable cause to search a car exists when “trustworthy facts and
circumstances within the officer’s knowledge . . . would cause a reasonably
prudent man to believe the car contains contraband [or evidence].” Guzman,
739 F.3d at 246 (quoting United States v. Banuelos–Romero, 597 F.3d 763, 767



       2The officers have also forfeited any argument that the search of the car conceivably
could have been justified as an extended Terry “frisk” for weapons. See Michigan v. Long, 463
U.S. 1032, 1051 (1983).

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(5th Cir. 2010)). Officer To was able to enter the car only with the key he took
from Emesowum’s hand and Emesowum’s help describing how to unlock the
car. Because Emesowum showed both the means and specialized knowledge
required to unlock his car, no reasonably prudent person would have taken
Emesowum for a burglar or expected to find evidence of a burglary in
Emesowum’s locked car. Because the officers lacked probable cause to search
Emesowum’s car, the search was unreasonable under the Fourth Amendment.
      As the district court held, Emesowum has also met his burden to
overcome the officers’ assertion of qualified immunity. It has long been clearly
established that police may not search a car for evidence absent probable cause
or consent. See, e.g., Mack v. City of Abilene, 461 F.3d 547, 555–56 (5th Cir.
2006). “[L]aw enforcement officials who ‘reasonably but mistakenly conclude
that probable cause is present’ are entitled to immunity.” Club Retro, L.L.C. v.
Hilton, 568 F.3d 181, 206 (5th Cir. 2009) (quoting Mendenhall v. Riser, 213
F.3d 226, 230 (5th Cir. 2000)). But “a qualified immunity defense cannot
succeed where it is obvious that a reasonably competent officer would find no
probable cause.” Mendenhall, 213 F.3d at 230 (quoting Babb v. Dorman, 33
F.3d 472, 477 (5th Cir. 1994)).
      The officers do not assert that, given the facts in the summary judgment
record, a reasonable officer could have believed that probable cause existed to
search Emesowum’s car. Rather, the district court held—and we have no
jurisdiction to reconsider—that a jury could find that Cruz knew before
searching the car that Emesowum owned the car and was not trying to
burglarize it. It is obvious that no reasonable officer could conclude that the
totality of the circumstances—including that Emesowum had the keys to the
car and knew how to unlock it—gave rise to probable cause to believe the car




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contained evidence of a crime. Cruz and To are therefore not entitled to
qualified immunity on Emesowum’s unlawful-search claim. 3
                                              C.
       Finally, we consider Emesowum’s claim for excessive force. “To prevail
on an excessive force claim, a plaintiff must show ‘(1) an injury that (2) resulted
directly and only from the use of force that was excessive to the need and that
(3) the force used was objectively unreasonable.’” Windham v. Harris Cty., 875
F.3d 229, 242 (5th Cir. 2017) (quoting Hamilton v. Kindred, 845 F.3d 659, 662
(5th Cir. 2017)). Emesowum identifies two relevant uses of force 4: (1) Cruz
“dragged and pushed” Emesowum from near his car to near Cruz’s police car,
and (2) To forced Emesowum’s keys from his hand. On the record before us,
even with the supplemental memorandum of the district court, neither alleged
use of force is sufficient to overcome the officers’ qualified immunity.
       Emesowum’s assertion that Cruz dragged and pushed him is insufficient
to create a material issue of fact. “‘Not every push or shove, even if it may later
seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth
Amendment.” Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Johnson
v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). Emesowum gives no detail about


       3  We also note that, in his opposition to the officers’ motion for summary judgment
before the district court, Emesowum challenged Officer Cruz’s initial search of his person and
search of his wallet. Emesowum’s terse descriptions of these searches in his affidavit fail to
show a violation of clearly established rights. See United States v. Vickers, 540 F.3d 356, 362–
63 (5th Cir. 2008) (frisk of suspect detained on suspicion of burglary was reasonable); United
States v. Brown, 366 F.3d 456, 461 (7th Cir. 2004) (“[A]n officer may check an individual’s
identification in his wallet during a Terry stop.”). The officers are therefore entitled to
qualified immunity for these searches, and we need not inquire further. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
        4 To the extent that Emesowum makes the conclusory assertion that the officers used

excessive force in handcuffing or verbally threatening him, these claims fail. See Glenn v.
City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001) (holding that even “handcuffing too tightly,
without more, does not amount to excessive force”); Bender v. Brumley, 1 F.3d 271, 274 n.4
(5th Cir. 1993) (“Mere allegations of verbal abuse do not present actionable claims under
§ 1983.”).

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the level of force used to direct him to the police car. Without more, Emesowum
has failed to meet his burden to show that pushing and dragging him was
objectively unreasonable under the circumstances.
      The same is true of To’s forcible removal of the car key from Emesowum’s
hand. “During an investigation, police officers may ‘take such steps as [a]re
reasonably necessary to protect their personal safety and to maintain the
status quo during the course of the stop.’” Allen v. Cisneros, 815 F.3d 239, 246
(5th Cir. 2016) (quoting United States v. Campbell, 178 F.3d 345, 348–49 (5th
Cir. 1999)). We find no caselaw clearly establishing that forcing an object that
a detainee refuses to release out of his hand, even when causing a cut, is an
objectively unreasonable use of force.
                                         III.
      The district court’s denial of Officers Cruz and To’s motion for summary
judgment on Emesowum’s claims of unlawful detention and unlawful search is
AFFIRMED. The district court’s denial of the officers’ motion as to
Emesowum’s claim for excessive force is REVERSED.




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