Jordan v. Garrison et al

Filing 77

MEMORANDUM RULING re Bench Trial held on 2/18/2014. Signed by Judge S Maurice Hicks on 4/8/2014. (crt,Dauterive, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
RICKEY ALLEN JORDAN

CIVIL ACTION NO. 11-CV-0723

VERSUS

JUDGE S. MAURICE HICKS, JR.

MARTHA S. GARRISON, ET AL

MAGISTRATE JUDGE HORNSBY

MEMORANDUM RULING

A civil bench trial was held on Tuesday, February 18, 2014 on the remaining claims
in the above captioned matter. This Court’s factual findings, legal standards and legal
analysis is set forth below.
Summary of the Facts:
At some point in late 2009 or early 2010, Richard Wood moved in with plaintiff,
Rickey Allen Jordan in exchange for Wood’s work on Jordan’s home, which was built on
high piers with storage space underneath. Wood brought his work tools to Jordan’s
property, where he stored and used them. Jordan afforded Wood the use of his
camper/trailer to store some of those tools. Thus, Jordan’s camper/trailer housed Wood’s
tools, but it was Wood’s padlock on the camper/trailer.
This arrangement worked well until Wood left for a period of time. It was obvious
from the testimony that there was still residual enmity between the two. The record is not
clear about the precise reason for the dissolution of the living-working arrangement
between these individuals; however, it is clear from the testimony and the inferences
therefrom that Wood was entirely justified in seeking the help of Deputies Garrison and Pye
in retrieving his personal items on Jordan’s home property on May 16, 2010.
On or before May 16, 2010, Jordan stated to Wood that Wood’s personal tools were

not on the property and that he was not to come back to the property. Wood had been told
by a neighbor of Jordan’s that much of his equipment, including his large steel “job box,”
had been removed from the property by Jordan. (Testimony of Richard Wood). From the
testimony it is obvious that their personal and work relationship had soured, and that
Wood’s property was taken away as retaliation or possibly leverage.
On May 16, 2010 Caddo Parish Sheriff Cpl. Martha Garrison was the training officer
for Deputy Michael Pye, who started the field training program two weeks previously. As
the officers were driving on Ferry Lake Road in Oil City, Louisiana near Jordan’s home,
they were waved down by Wood. (Testimony of Garrison and Pye).
Wood told the officers that he had extensive and valuable tools and equipment at
Jordan’s residence, which Jordan refused to return. Wood also reported that some of his
tools and equipment had already been removed from the location by Jordan. Wood also
stated that he had received a message from a neighbor of Jordan that Jordan had in fact
removed Wood’s personal property from the location. (Testimony of Garrison, Pye, and
Wood; CPSO Report of Witness Tyler statement, Exhibit 1; see also interview of witness
Tyler at Mobile Video System – hereafter referred to as “MVS” – 11:34:40).
Cpl. Garrison and Deputy Pye drove the short distance to Mr. Jordan’s
residence, and Mr. Wood followed on foot. Based on Wood’s statements, the deputies
were investigating possible criminal activity by Jordan, as well as assisting Mr. Wood
and avoiding potential escalation. (Testimony of Cpl. Garrison and Deputy Pye). The
Court viewed the patrol car’s dashcam video as part of the bench trial.

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Based upon the demeanor and level of detail of the information provided by
Wood, he appeared to be sincere in his description of what had occurred and appeared
credible to the deputies. (Testimony of Garrison and Pye).
The patrol unit used by Garrison and Pye is equipped with a mobile video system
(“MVS”) with a remote audio recording device and in-car audio recording. Under these
circumstances, when a trainee is being utilized, the trainee uses the remote
microphone. Deputy Pye’s microphone was activated and a copy of the recording is
Joint Exhibit 101. (Testimony of Garrison and Pye).
Deputy Pye and Cpl. Garrison went to the property of Jordan and questioned Jordan
regarding the information provided by Wood. Jordan made numerous statements that Cpl.
Garrison and Deputy Pye later determined were false, including the following (the time
referenced is set forth on the MVS recording).
10:54:25

Plaintiff:

I don’t know what he’s got left here.

10:54:33

Garrison:

What happened to the other tools?

Plaintiff:

I don’t know. He said somebody stole some of them, there
some of them missing, I don’t have any idea.

Garrison:

Did you take them somewhere?

Plaintiff:

No, sir, I didn’t take anything.

10:54:43

Plaintiff:

No, I didn’t take nothing of his stuff anywhere.

10:55:50

Garrison:

You have some of his tools at your shop?

Plaintiff:

No I don’t have anything.

Pye:

Does he have anything inside the house that of his?

Plaintiff:

No sir, not that I know of.

10:54:38

10:57:58

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Everything was right here….

Pye:

He didn’t have a computer or anything?
Silence.

Pye:
Plaintiff:

It was his, I don’t know what we were going to work out on
that or what.

Garrison:

Who paid for that computer?

Plaintiff:

I have no idea….

Garrison:

Do you know if you paid for it or not?

Plaintiff:

I don’t know.

Wood:

Big yellow job site box? It was sitting right there.

Plaintiff:

That’s been gone for way before you left, I assumed you
took that with you or whatever. You didn’t take that with
you to wherever you went?

Wood:

No.

Plaintiff:

10:59:40

Is it his?

Plaintiff:

10:58:21

Yes, I have a computer.

Pye:

11:06:00

Did he have a computer inside the house?

Well I don’t, I have no idea what stuff was here. He had a
key to all, I didn’t have a key to any of it. That’s his air
compressor. I tried to get him to put those doors up because
he said people were getting his stuff, so I don’t know. He left
here. I didn’t know nothing. As far as I am concerned, I
mean, me and him are through.

Garrison:

When will you be available for us to check your shop?

Plaintiff:

This is his stuff.

Garrison:

But he’s got stuff missing.

Plaintiff:

Well I don’t know what…All I know is, you see, anybody
could have got it. He told me they were getting it. I have no
idea where it all is.
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11:00:24

For him to be okay, and say that you don’t have any stuff in
your shop, then that’s what we want to look in for tomorrow.
And that’s okay with you?

Plaintiff:

Well I mean, I don’t have nothing there.

Garrison:

Are you going to let him get his stuff?

Plaintiff:

11:13:34

Garrison:

What stuff does he have?

(Testimony of Garrison and Pye; MVS at times stated). The Court notes that these
recordings demonstrate plain inconsistencies with Jordan’s subsequent statements to the
deputies. The Court concludes that these statements by Jordan were outright lies and
purposeful evasions.
Despite these statements, it was obvious that there had been extensive equipment
there and that other equipment owned by Wood was missing; Jordan finally but reluctantly
admitted that some of Wood’s personal property had been removed. Specifically, the
camper trailer containing Wood’s personal property had been moved by Jordan to Vivian
(MVS at 11:08:50); and that the computer at the residence had been purchased by Wood
(MVS at 11:03:25). Jordan moved the trailer to the property of a third-party, not to Jordan’s
business in Vivian. This Court infers and concludes from the testimony that Jordan moved
the camper trailer in an attempt to hide Wood’s property and made it very difficult, if not
impossible, for Wood to ever recover his property.
Wood also reported to the deputies that a neighbor, Tyler, had witnessed Jordan
leaving with the large yellow job box on the back of his truck while pulling a camper, and
that another neighbor, Fontenot, had told Glenn Tennis that he had helped Jordan load the
job box onto Jordan’s truck. Wood’s other statements had been corroborated, so the
deputies believed Wood to be truthful (Garrison testimony; Pye testimony; Wood
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testimony). (See also Tyler interview regarding seeing Jordan remove the job box at MVS
11:34:15).
Cpl. Garrison asked Jordan whether he would allow them to confirm that Mr. Wood’s
property was not at his shop in Vivian. Jordan gave evasive answers regarding that as
well, including the following:
Q:

When will you be available for us to check your shop?

A:

This is his stuff.

Q:

But he’s got stuff missing.

A:

Well I don’t know what…. All I know is you see anybody could
have got it. He told me they were getting it. I have no idea where it
all is.

(MVS at 10:59:40). Jordan’s statements were, again, intentionally evasive. He later
indicated that they could do so Monday, but would not provide further information. (MVS
at 11:00:11).
Q:

For him to be okay, and say that you don’t have any stuff in
your shop, then that’s what we want to look in for tomorrow.
And that’s okay with you?

A:

Well, I mean, I don’t have nothing there.

Q:

But, to ease everybody’s mind.

A:

I don’t to have ease anybody’s mind….

(MVS at 11:00:30).
Q:

So, he needs to get his stuff out of that camper trailer.

A:

I believe we better go – I better call a lawyer….

(MVS at 11:08:17).
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Cpl. Garrison spoke to her supervisor on her cell phone to discuss the
circumstances, and the supervisor confirmed that an arrest was appropriate for theft.
(Garrison testimony; see Garrison on cell phone, MVS at 11:10:40). There is no evidence
in th record of any attempt by Jordan to call or notify any lawyer.
Cpl. Garrison requested again that Jordan allow Wood to remove his property from
Jordan’s shop in Vivian or he would be arrested, and in response Jordan stood and placed
his hands behind his back to communicate that he should be arrested instead.
Garrison:

If you don’t agree to take us right now to get his stuff, out of
that camper, I am going to arrest you for theft. Bottom line.
[Jordan turns and places hands for cuffing]

Garrison:

All right. Put the handcuffs on him.

(MVS at 11:13:08).
Based upon the factual information obtained from Jordan’s clearly suspicious
evasive and contradictory statements, Cpl. Garrison and Deputy Pye believed that there
was probable cause that Jordan had committed a theft of Wood’s property in violation of
La. R.S. 14:67. (Testimony of Garrison and Pye).
Based upon the information developed by the deputies, under the related offense
doctrine, there was also probable cause to believe that Wood had committed the offense
of unauthorized use of a movable (the camper containing Wood’s personal property) in
violation of La. R.S. 14:68.
With respect to the claim that Cpl. Garrison should not have entered Jordan’s home,
or should not have permitted Wood to do so, Jordan clearly stated multiple times that Wood
could remove all of his property, and placed no restrictions on where that property could
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be retrieved. As confirmed by MVS, Jordan did not ever say that the deputies or Wood
could not go to any specific location. (Testimony of Garrison and Pye). A reasonable
officer under these circumstances would not have believed that Jordan had somehow
limited his consent. (Id.).
Multiple statements by Jordan caused the deputies to believe that Jordan had
consented to permit Wood to retrieve all of his belongings wherever they were located on
his property, whether inside of the residence, under the residence, on the porch of the
residence:
A:

He can look here and see what’s here of his.

(MVS at 10:54:41).
Q:

Does he have anything inside the house of his?

A:

No sir, that I know of.

(MVS at 10:57:58) (he did not state, for example, “that’s off limits,” or “he can’t get his
belongings from inside the house”).
A:

But, when he leaves here. I don’t want him on my property again.
Now, he needs to get what’s his and that’s it.

(MVS at 11:00:12) (emphasis added).
A:

I don’t think he will take nothing that’s not his.

(MVS at 11:05:30).
A:

I want him to get what he thinks is his now and that’s it. And he has
no right to come back on this place.

(MVS at 11:05:51) (emphasis added).
“[To Woods] You ain’t going get nothing but what’s your stuff, right?
(MVS at 11:06:30).
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It therefore appeared to Cpl. Garrison and Deputy Pye that Jordan clearly consented
for Wood to obtain and remove whatever property was his from wherever it was located
while the deputies were present, whether inside or not, and that he did not want Wood back
on his property after that:
Q:

He has the right to get his stuff.

A:

He don’t have any right to come back on this place.

Q:

Yes he does. While we’re here he does.

A:

Well, y’all do what you need to do.

(MVS at 11:00:57). Cpl. Garrison understood from this and the other exchanges that Mr.
Jordan wanted Wood to obtain all of his property while the deputies were present, without
limitation to where it was located in the residence or on the property.
Even after plaintiff was arrested, he did not ever indicate to Cpl. Garrison that his
consent had changed. Accordingly, Cpl. Garrison continued to reasonably believe that
Jordan had given consent for Wood to obtain his property wherever it was located.
(Garrison testimony).
Wood told Garrison that a deer head on the wall inside Jordan’s home and that other
property inside was his. Cpl. Garrison stood in the entry area of the living room while Wood
removed the deer head, shop vac, and a five foot level. (Garrison testimony; Wood
testimony). Each item was removed and placed in the pick-up truck in full view of the dash
camera and in full view of Jordan who had been placed in the back seat of the patrol car.
Deputy Pye had not been with Garrison while Wood described the deer head, so
Deputy Pye understood that the only property of Wood in the home was the computer and
that this would be addressed later because Jordan had personal information on Wood’s
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computer. (Pye testimony).
While Deputy Pye was placing the seatbelt on Jordan, Jordan said: “They better not
let him go in that house now, he has nothing in that house.” (MVS at 11:20:50, emphasis
added; note that MVS camera angle 2 confirms Deputy Pye placing plaintiff in the seatbelt
in the back seat at the time of this comment).
Deputy Pye was not aware of where Garrison and Wood were while Pye was dealing
with Jordan in the patrol car. There is an area under the residence that was not visible to
Deputy Pye, a porch on the back of the residence as well as other areas. (Testimony of
Deputy Pye; MVS beginning at 11:20:50).
Apparently Deputy Pye did not think that Wood had property in the residence so he
did not think that Cpl. Garrison and Wood had entered the residence. (Pye testimony).
There is no statement to Cpl. Garrison by Jordan limiting consent for Wood to obtain
his property wherever located and there was no communication to Cpl. Garrison by anyone
that Jordan had withdrawn his general consent for removal of Wood’s property wherever
located or added a restriction. (Garrison testimony). This is confirmed by review of the
entirety of the MVS as well.
Based on the totality of the circumstances, Cpl. Garrison and Deputy Pye were
reasonable in believing that Jordan had given consent to permit Wood to obtain his
property wherever it was located on Jordan’s Oil City property. (Garrison testimony; Pye
testimony).
Throughout the lengthy MVS recording, Wood can be seen moving property from
the house to his truck in full view of the dash camera, Jordan never objected as these items
were individually placed in the bed of a pick-up truck. All of the property retrieved by Wood
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after Jordan is placed in a patrol car, i.e. the deer head, shop vac, and carpenter’s level,
was carried by Wood to a truck parked adjacent to the patrol car in full view of Jordan.
Jordan made no complaint that these items actually belonged to him or that Wood was
stealing Jordan’s personal property. (MVS recording from 11:18:00 forward).
Cpl. Garrison and Wood were in the residence only briefly. They entered the
residence through a glass door on a small porch located on the back of the residence.
They are seen at the top of the stairs entering the porch located at MVS 11:20:50, and
Wood can be seen leaving the porch and entering the stairway again with the deer head
at 11:22:29, with Cpl. Garrison shortly thereafter. Accordingly, Wood and Garrison are out
of the camera’s sight one minute and 39 seconds, during which time they moved across
the porch, into the residence, where Wood removed the deer head as Garrison watched,
then they left the porch and reached the top of the stairs again. (Id.).
Cpl. Garrison did not see Wood enter any other area of the residence during that
brief period, and does not believe that Wood could have done so without her noticing.
(Garrison testimony).
Cpl. Garrison later retired from the Caddo Parish Sheriff’s Office and moved to
Hammond, Louisiana. She was not notified of the criminal trial involving Jordan and the
criminal charges arising from his conduct, and therefore, did not testify.

(Garrison

testimony).
Conclusions of Law:
Findings of Credibility of Witnesses
The standard giving discretion to the Court in a bench trial to determine the
credibility of the witnesses is well settled:
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When a judgment after a bench trial is on appeal, we review the findings of
fact for clear error and the legal issues de novo. See Gebreyesus v. F.C.
Schaffer & Assocs., Inc., 204 F.3d 639, 642 (5th Cir.2000) (quoting FDIC v.
McFarland, 33 F.3d 532, 536 (5th Cir.1994)). Under the clearly erroneous
standard, we will reverse only if we have a definite and firm conviction that
a mistake has been committed. See Mid–Continent Cas. Co. v. Chevron Pipe
Line Co., 205 F.3d 222, 229 (5th Cir.2000). “The burden of showing that the
findings of the district court are clearly erroneous is heavier if the credibility
of witnesses is a factor in the trial court's decision.” Dunbar Medical Systems
Inc. v. Gammex Inc., 216 F.3d 441, 453 (5th Cir.2000) (quotation marks
omitted). That's because “due regard shall be given to the opportunity of the
trial court to judge of the credibility of the witnesses.” Fed.R.Civ.P. 52(a);
Torch, Inc. v. Alesich, 148 F.3d 424, 426 (5th Cir.1998) (“The factual findings
of the trial court in a bench trial may not be set aside unless clearly
erroneous and due regard must be given to its credibility evaluations.”); Ruiz
v. Estelle, 679 F.2d 1115, 1131, amended in part & vacated in part, 688 F.2d
266 (5th Cir.1982) (“[I]n a bench trial the assessment of witness credibility is
inherently his province.”). We cannot second guess the district court's
decision to believe one witness' testimony over another's or to discount a
witness' testimony. See Brister v. Faulkner, 214 F.3d 675, 684 (5th Cir.2000).
Canal Barge Co., Inc. V. Torco Oil Co., 220 F.3d 370, 375 (5th Cir. 2000).
The Court could not grant Defendants’ Motion for Summary Judgment regarding the
defense of qualified immunity in this matter only because the credibility of the witnesses’
statement could not be evaluated in such a motion. However, as a result of the trial, the
Court found zero credibility in the word of the Plaintiff. Specifically, the Plaintiff steadfastly
failed to present his business records or tax returns related to his claimed loss of economic
opportunity and other damages. These records were the subject of a discovery request, but
Plaintiff never produced his business records. These “records” exist but he did not produce
them at trial. Instead, Jordan “estimated” his losses at around $200,000. This provides the
trier of fact with an adverse presumption against the Plaintiff. International Union, United
Auto., Aerospace and Agr. Implement Workers of America (UAW) v. N.L.R.B., 459 F.2d
1329, 1336 (D.C. Cir. 1972). His estimated damages could have been proved with a fair
measure of mathematical certainty had he produced those records. The fact is Jordan hid
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them from scrutiny during discovery and did not produce them at trial. His uncorroborated
estimates are without merit.
The totality of the testimony presented made it obvious to the Court that the Plaintiff
intentionally moved personal property of Wood to a location owned by a third party in order
to secret that property from Wood and make it very difficult, if not impossible, to retrieve.
Jordan lied to the deputies at the outset. Jordan’s devious plan was to seize Wood’s
property and keep it for himself or to use it as leverage against Wood. Further, the Plaintiff
failed to provide any proof regarding the claim that Wood took $900 in cash from the house.
The Court specifically notes the fact that other individuals had access to the inside of the
house, including the crew installing new flooring in the house at the time. No cash
transaction receipt was provided by plaintiff. His bald assertion that he had $900 in cash
in a pocket of his jeans inside the residence is insufficient to carry his burden of proof on
this issue, especially considering the Plaintiff’s lack of credibility.

General Qualified Immunity Principles
A court ruling upon the issue of qualified immunity must apply a two-step analysis.
Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The court
must determine whether "the facts alleged show the officer's conduct violated a
constitutional right." Id. Second, if a violation has been established, the court must
additionally determine whether the officer's actions were objectively reasonable in light of
clearly established law at the time of the conduct in question. Id.
Once a defendant has raised a qualified immunity defense, the plaintiff bears the
burden of demonstrating the violation of a clearly established right. To demonstrate that
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a right is "clearly established," although plaintiffs need not show that the "very action in
question" was previously held unlawful, the right must be sufficiently clear so that a
reasonable officer would understand that he is violating that right. Anderson v. Creighton,
483 U.S. 635, 640, 107 S.Ct. 3034, 3039 (1987).
The Supreme Court has stated that a court may assess the two part standard for
qualified immunity in any order. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808
(2009).
Qualified Immunity for Probable Cause Determination
"On many occasions, we have reiterated that the probable-cause standard is a
"'practical, nontechnical conception'" that deals with "'the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal
technicians, act.'" Maryland v. Pringle, 540 U.S. 366, 370-71, 124 S.Ct. 795, 799-800
(2003) (quoting Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)
(quoting Brinegar v. United States, 388 U.S. 160, 175-176, 69 S.Ct. 1302); see, e.g.,
Ornelas 800 v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996);
United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).
"[P]robable cause is a fluid concept-turning on the assessment of probabilities in particular
factual contexts-not readily, or even usefully, reduced to a neat set of legal rules."
Maryland v. Pringle, 540 U.S. 366, 370-71, 124 S.Ct. 795, 800 (2003) (quoting Illinois v.
Gates, 462 U.S. 213, 232, 103 S.Ct. 2317).
"The probable-cause standard is incapable of precise definition or quantification into
percentages because it deals with probabilities and depends on the totality of the
circumstances." Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 800 (2003).
14

"Probable cause exists when the facts and circumstances within the arresting
officer's personal knowledge, or of which he has reasonably trustworthy information, are
sufficient to occasion a person of reasonable prudence to believe an offense has been
committed." Evett v. DETNTFF, 330 F.3d 681, 688 (5th Cir. 2003) (quoting Bigford v.
Taylor, 824 F.2d 1213, 1218 (5th Cir. 1988).
"[P]robable cause standards for reasonableness differ from those for qualified
immunity." Evett v. DETNTFF, 330 F.3d 681, 688 (quoting Wren v. Towe, 130 F.3d 1154,
1160 (5th 1997) (internal quotation marks omitted)). "An officer may be shielded from
liability even if he reasonably but mistakenly conclude[s] that probable cause is present."
Evett v. DETNTFF, 330 F.3d 681, 688 (quoting Mangieri, 29 F.3d at 1017 (internal
quotation marks and citation omitted)).
Corporal Garrison had received reasonably trustworthy information that Jordan had
removed items belonging to Richard Wood, without Richard Wood's consent, and moved
them to a location in Vivian, LA owned by a third party. Corporal Garrison relied upon the
admissions of Jordan that a camper trailer in fact contained Wood’s personal property.
Corporal Garrison also relied upon the statements of the victim, Richard Wood, that some
of his personal property had disappeared from Jordan's residence, which was corroborated
through investigation at the scene. Corporal Garrison also relied upon the statement of
Wood that a neighbor had observed Jordan drive away from the residence pulling the
subject camper trailer and Wood's job box in the back of the truck. This last information
was corroborated by and consistent with Jordan's own admission that he had moved the
camper trailer. Therefore, Corporal Garrison had reasonably trustworthy information to
believe that Jordan had taken property belonging to Wood.
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Corporal Garrison also had reasonably trustworthy information to believe Jordan
took Wood's property with the intent to permanently deprive Wood of his property. Corporal
Garrison and Deputy Pye had asked Jordan several times to take them and Wood to
Vivian, so Wood could retrieve his property there. At the scene, Jordan refused these
offers to return Wood's property to him. Corporal Garrison also relied upon the evidence
gathered which confirmed that Jordan had been evasive and untruthful (i.e., Jordan lied)
on a number of occasions about still having possession of Wood’s personal property at his
house or at another location. These purposeful and misleading evasions, along with
Jordan's repeated refusal to allow Wood to retrieve his property gave Corporal Garrison
reasonably trustworthy information that Jordan intended to permanently deprive Wood of
his property.
Corporal Garrison therefore, had probable cause to arrest Jordan for theft, in
violation of La. R.S. 14:67.
The related offense doctrine provides qualified immunity if the officer "could have
arrested the plaintiff for another offense" if two conditions are satisfied. First, the charged
and uncharged offenses must be 'related.' Second, the arresting officer must demonstrate
that there was arguable probable cause to arrest the plaintiff for the uncharged related
offense." Vance v. Nunnery, 137 F.3d 270, 274 (5th Cir. 1998). In addition to having
probable cause to arrest Jordan for theft, there was probable cause to arrest Jordan for
unauthorized use of a movable, in violation of La. R.S. 14:68, under the related offense
doctrine. Corporal Garrison had reasonably trustworthy information that Jordan had
intentionally moved the property of Wood without Wood's consent. Corporal Garrison had

16

reasonably trustworthy information that the value of the property was greater than $500.00,
thereby making the offense a felony.
Qualified Immunity for Scope of Consent
"The relevant, dispositive inquiry in determining whether a right is clearly established
is whether it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted." Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151 (2001). At
its core, the question is one of fair notice: "If the law did not put the officer on notice that
his conduct would be clearly unlawful,…qualified immunity is appropriate." Id., 533 U.S.
at 202.
A key determination in this analysis is the level of generality for courts to apply in
identifying which legal rights are clearly established, and the Supreme Court has cautioned
against imposing an unrealistic burden on public officials in conducting this analysis.
Anderson, 483 U.S. at 639, 107 S.Ct. at 3038-39. An accommodation for reasonable error
exists because officials should not err always on the side of caution because they fear
being sued. Malley v. Briggs, 475 U.S. 335, 343, 341, 106 S.Ct. 1092, 1097, 1096 (1986).
The contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right. Anderson v. Creighton, 483 U.S. 635,
639, 109 S.Ct. 3034 (1987).
For a law to be "clearly established," there must be Supreme Court or Fifth Circuit
authority or the consensus of authority among other circuits must establish the contours of
the right with sufficient clarity to provide fair warning that the conduct would violate the
right. McLendon v. City of Columbia, 305 F.3d 314, 329-333 (5th Cir. 2002) (holding that

17

inconsistencies and uncertainties within the alleged consensus did not provide fair warning
to officers).
"To be clearly established, a right must be sufficiently clear "that every 'reasonable
official would [have understood] that what he is doing violates that right.' " Reichle v.
Howards, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (quoting Ashcroft v. Al-Kidd, 131
S.Ct. 2074, 2078, 179 L.Ed.2d 1149 (2011) (quoting Anderson v. Creighton, 483 U.S. 635,
640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)) (internal quotations omitted).
A general constitutional rule already identified in the decisional law may apply with
obvious clarity to the specific conduct in question, even though the very action in question
has not previously been held unlawful. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508
(2002). However, " 'existing precedent must have placed the statutory or constitutional
question beyond debate.' " Reichle v. Howards, 132 S.Ct. 2088, 2093, 182 L.Ed. 2d 985
(2012) (quoting Ashcroft v. Al-Kidd, 131 S.Ct. at 2083).
Because of the various factual scenarios possible in scope of consent settings, the
right at issue must be defined specifically if the officer is to be provided notice that the
proposed conduct is unlawful. For example, in Winnfield v. Trottier, 1710 F.3d 49 (2d Cir.
2013), the officer requested to search plaintiff's vehicle during a traffic stop, stating "there's
nothing in there I should know about is there? No guns or money?" and plaintiff responded
"you can look." The officer located an envelope, then opened the envelope and read the
correspondence contained in the envelope. The court found that the consent was not
limited by its expressed object, guns or money, because the question did not convey any
"expressed object" of the search: "There's nothing in there I should know about is there?
No guns or money?" Id. at 55. The court focused upon the fact that the open ended
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question reached "anything" he should "know about," of which guns and money were
examples. Accordingly, the court found that a typical person would not think that consent
was limited to places that could hold guns or money. However, the court found that no
reasonable person would believe that the consent authorized the officer to read personal
mail. Nevertheless, qualified immunity was necessary where the right at issue was properly
stated with precision, not generally, as follows:
It is a Fourth Amendment violation when a police officer reads a suspect's
private papers, the text of which is not in plain view, while conducting a
search authorized solely by the suspect's generalized consent to search the
area in which the papers are found. No prior case in the Second Circuit has
so held. Accordingly, Trottier's actions were objectively legally reasonable
in light of the legal rules that were clearly established at the time it was taken.
Id. at 57.
The relevant legal rule which must be "clearly established" is identified with
reference to the particularized facts and circumstances of the case." Cantu v. Rocha, 77
F.3d 795, 807 (5th Cir. 1996) (summarizing Anderson v. Creighton, 483 U.S. at 639).
Unless all reasonable officers in the defendant's circumstance would have known
that the conduct in question violated the constitution, the defendant is entitled to qualified
immunity. Thompson v. Upshur City, Tex., 245 F.3d 447, 457 (5th Cir. 2001) (emphasis
in original).
A consensual seizure of property without a warrant does not violate the Fourth
Amendment. U.S. v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988 (1974). It is plainly clear
that the Fourth Amendment's general prohibition against warrantless search and seizure
did not apply when the "search [is] conducted pursuant to a valid consent." Schneckloth
v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045 (1973).

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The Supreme Court has also addressed situations involving the permissible scope
of searches. In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157 (1982), for example,
the court held that a "lawful search of fixed premises generally extends to the entire area
in which the object of the search may be found and is not limited by the possibility that
separate acts of entry or opening may be required to complete the search." Id. at 820-21,
102 S.Ct. at 2170-71.
The standard for measuring the scope of a suspect's consent under the Fourth
Amendment is that of objective reasonableness, what would the typical reasonable person
have understood by the exchange between the officer and the suspect. Florida v. Jimeno,
500 U.S. 248, 251, 111 S.Ct. 1801 (1991).
"The scope of the search is generally defined by its expressed object." Jimeno, 500
U.S. at 251, 111 S.Ct. 1801 (no Fourth Amendment violation where defendant consented
to search of his car and the police found cocaine in a closed paper bag found on the floor
of the car).
A suspect may of course delimit as he chooses the scope of the search to which he
consents. Jimeno, 500 U.S. at 252, 111 S.Ct. 1801. To determine the parameters of
consent, the Court must ask "what would the typical reasonable person have understood
by the exchange between the officer and the suspect?" Id. at 251, 111 S.Ct. 1801.
Courts must consider the totality of the circumstances when determining whether
there are any limitations placed on the consent given and whether the search confirmed
to those limitations. "When an individual gives a general statement of consent without
express limitations, the scope of a permissible search is … constrained by the bounds of

20

reasonableness." U.S. v. Ibarra, 965 F.2d 1354, 1358 (5th Cir. 1992) (quoting U.S. v.
Strickland, 902 F.2d 937, 941-42 (11th Cir. 1990)) (internal quotations omitted).
For example, the statement to an officer regarding a tractor that, "if its stolen, go
ahead and take it then," was reasonably interpreted as not only applying to the day of the
statement; accordingly, officers could return two months later and seize the tractor. Tucker
v. Williams, 682 F.3d 654, 659 (7th Cir. 2012).
Jordan's statement made only to Deputy Pye while in the patrol car, "They'd better
not let him go in my house, now. He has nothing in that house," was not an unequivocal
limitation of consent. Jordan's statement was premised on whether Mr. Wood had property
in the house. It was, therefore, not an unequivocal revocation of consent. See, e.g., U.S.
v. Alfaro, 935 F.2d 64, 67 (5th Cir. 1991) (when told to get against the wall to be searched,
response "I have to go outside and talk to lieutenant" did not call into question the
subsequent search, as it "falls far short of an unequivocal act or statement of withdrawal.")
(citing cases from other circuits where person either said "No" or "stop" ) (quoted in U.S.
v. Herrera, 2006 WL1751082, p. 16 (W.D. La. 2006) ("a reasonable person in Defendant's
situation would have … said unequivocally that he wanted the search to stop.").
Plaintiff does not contend that his consent was not voluntary, but even had such a
claim been made, voluntariness is an issue particularly subject to qualified immunity. See,
e.g., Hudson v. Hall, 231 F.3d 1298, 1297 (11th Cir. 2000) (even assuming that statement
"if you don't want to be searched, start walking," was coercive and rendered consent
involuntary, qualified immunity was necessary because the impropriety of the officer's
statement was not obvious and no materially similar case provided the officer with notice
that such consent was involuntary).
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Under Louisiana law, the same standards are used in analyzing state law claims
namely, whether the officers actions were "reasonable" under the circumstances. See
Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir.1997); Reneau v. City of New Orleans, 2004
WL 1497711, *3-4 (E.D.La. July 2, 2004); Kyle v. City of New Orleans, 353 So.2d 969, 973
(La.1977). Here, both deputies, Pye and Garrison are entitled to qualified immunity.1
CONCLUSION
For the forementioned reasons, this Court finds that the defendants had probable
cause for arresting Rickey Jordan and are therefore entitled to qualified immunity on that
issue. Additionally, the defendants are entitled to qualified immunity for the search of the
Jordan’s home because Jordan provided consent for Wood to “get his stuff.” Even if Jordan
intended to limit the search to the area under his home, a reasonable officer could have
mistaken the consent to include allowing Wood to retrieve his items from the interior of the
home. Further, the lack of credibility by Wood prevents him from carrying his burden.
THUS DONE AND SIGNED this 8th day of April, 2014 in Chambers in Shreveport,
Louisiana.

1

With this Court having found that the Plaintiff provided general consent to search
his property and the finding of qualified immunity, the issues of damages need not be
addressed.
22