Winfrey v. San Jacinto County et al

Filing 147

OPINION on Partial Summary Judgment. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS
United States District Court

Richard Winfrey,]unior, et al.,
Plaintiffs,

1.Iersus

Keith Pikett, et al.,
Defendants.

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Southern District of Texas

ENTERED
October 04, 2016
David J. Bradley, Clerk

Civil Action H-ro-r896
H- r 4-44 8

Opinion on Partial Summary Judgment
r.

Introduction.
A father, his son, and his daughter were searched, arrested, and tried for murder. All

three were, eventually, acquitted. The son and daughter sue the investigators and the
counties that employ them for violating their constitutional rights. The son will take
nothing. The daughter will take nothing on all but one of her claims.

2.

Background.
In August of 2004, Murray Wayne Burr was found dead in his home in Texas's San

Jacinto County. Blood spatter showed that the murder started in his living room, and the
body was dragged to the bedroom. The County Sheriff Lacy Rogers and Deputy Sheriff
Lenard Johnson led the investigation. Texas Rangers Grover Huff and Ronald Duff assisted.
Ultimately, the investigators concluded that Richard Winfrey, Senior, and his
children Richard Winfrey,]unior, and Megan Winfrey killed Burr.

A.

The In1.lestigation Begins.

Burr had worked as a janitor at Coldspring High School where Megan and Junior
were students. Some of the initial evidence indicated that they had socialized.
Burr's neighbors said that Megan and Junior asked Burr to let them move in with
him, but he said no. One teacher at the school saw Megan put her arm in Burr's and ask if
he was going to take her out and spend some of the money he had hidden in his house on
her.

A second teacher said she saw a verbal fight between Megan and Burr after which
Megan muttered, "Someone should beat the shit out of him." A third teacher told of a time
Megan acted violently towards her.

B.

Scent Evidence Gathered.

Keith Pikett - a deputy from a nearby agency - assisted the investigation by running
scent-pad line-ups. The line-up uses bloodhounds to compare a suspect's scent to the scents
found on a victim's clothes. On August

24, 2004,

Pikett ran the line-up using bloodhounds

and scents from four suspects - Megan, Junior, Chris Hammond, and Adam Szarf. The
bloodhounds alerted only on Megan's andJunior's scents.
The bloodhounds also traced a scent by following a scent trail, a method often used
to find lost people or fleeing criminals. The investigators gave the hounds the scent at Burr's
house. The hounds located the scent and followed it to the Winfrey house. The officers
thought the scent used was Junior's; the scent actually came from Chris Hammond,
Megan's boyfriend.

C.

Blood not a match.

In September of 2004, the investigators received a report from the Houston Crime
Laboratory. A lot of blood was found at Burr's house. The report compared the DNA of the
blood found in Burr's house with the suspects' DNA. The report concluded that neither
Megan's nor Junior's blood was at the scene. The report also concluded that all of the blood
may have come from Burr but it could not conclude his blood was the only blood at the
scene.

D.

Megan's hair not a match.

The investigators found hairs on and near Burr's body that did not belong to Burr.
In January of 2005, Rogers signed an affidavit and received a search warrant for Megan's
hair.
In the affidavit, he included (a) the neighbor's statement that Megan socialized with
Burr; (b) the teacher's statements; (c) the results of the line-up; (d) the partially erroneous
results of the scent trail. He did not include that the blood at the scene may have come from
someone other than Burr, Megan, or Junior. Megan's hair was not a match.

E.

An Informant Comes Forward.

The investigation stalled for over a year. Until then, Senior had not been a suspect.
David Campbell changed that.
Some time after Burr's murder, Senior was imprisoned on an unrelated matter. he
was housed with Campbell. Campbell told a warden that he confessed his involvement in a
murder in SanJacinto County. The warden contacted Johnson.
Johnson met with Campbell and wrote a summary of his statement. According to
the report, Senior told Campbell that he committed a murder in San Jacinto County in
2005. Senior also told Campbell that: (a) Megan and Junior played across the street from
Burr's house; (b) one of Burr's neighbors told Senior that Burr had touched one of Senior's
children; (c) Megan and Junior helped Senior get into Burr's house; (d) Senior severely beat
Burr and cut his neck; (e) Senior cut off Burr's genitals and placed them in Burr's mouth;
and (fj Megan and Junior were present the whole time. Johnson told Campbell that he
would return with Rogers for more information.
Rogers and Johnson returned to question him. They videotaped the interview.
Campbell elaborated on what he originally toldJohnson. This time, Campbell added that (a)
a cousin entered with Senior; (b) Burr was in the living room; (c) Burr was shot as well as
stabbed; (d) Senior stole two guns (a pistol and a .3030 rifle) from Burr; and (e) Senior hid
the guns and a knife in a hollow on Winfrey property. Those facts are missing from
Johnson's report about the first interview.
After the interview, Johnson learned from one of Burr's relatives that two guns were
missing from Burr's house after the murder. The relative said the missing guns were a
shotgun and a .22 rifle, not a pistol and a .3030 rifle.
The investigators also found a hollow matching Campbell's description of where
Senior hid the guns and knife but did not find any weapons in the hollow.
Finally, Pikett ran a line-up using Senior's scent. Senior's scent matched the scent on
Burr's clothes.

F.

Junior's and Senior's hair not a match.

On August 23, 2006,]ohnson signed two affidavits to obtain search warrants for
Junior's and Senior's hair. He wanted to compare their hairs against the hair found at the
scene.

Both affidavits omitted some of the evidence favorable to Junior and Senior. Johnson
excluded: (a) the inconsistencies between Campbell's two interviews; (b) the inconsistencies
between Campbell's statements and the other evidence; (c) that Junior's blood and Megan's
blood was not found at the scene; and (d) that the hair found at the scene did not match
Burr or Megan.
Junior's and Senior's hairs did not match the hair found at the crime scene.

G.

Winfrrys Arrested and Eventualry Acquitted.

On February 2, 2007, Johnson signed affidavits for arrest warrants for Megan,
Junior, and Senior. The substance ofJohnson's affidavits for the arrest warrants is identical
to Johnson's affidavits for Junior's and Senior's search warrants.
Johnson's arrest affidavits contained the same errors as the search affidavits. There
was an additional omission: the hairs recovered at the crime scene did not belong to Junior,
Megan, Senior, or Burr.
In October of 2008, Megan was convicted. OnJune

12,

2oo9,junior was acquitted.

On February 27, 20I3, Megan's conviction was overturned.

H.

Allegations tbat Campbell's Interview was Staged.

Campbell testified at Megan's trial. He was asked about letters he sent Senior's
sister, Vicki Haynes. While in prison, Campbell received a letter from Haynes. She had
learned that he was going to be a witness. Campbell was worried because Haynes knew
where his family lived; he feared retribution. Campbell wrote back saying that the first
interview, by Johnson, was "staged." At trial, Campbell reaffirmed this and said that Johnson
tried to make something up. As a result, Campbell asked to speak to someone with more
authority - Rogers.
Campbell never explains what Johnson tried to add or in what way the interview was
"staged." Johnson's summary of the interview is consistent with the content of both the
second interview and Campbell's testimony at triaL The video shows that Campbell was not
under duress or coached during the second interview.

3.

Case History.
Senior, Megan, and Junior sued every investigator; most of the claims have been

resolved.
InJunior's case, the court granted summary judgment to the defendants. The
United States Court of Appeals reversed the judgments for Johnson, Rogers, and Pikett.
Pikett was dismissed by agreement of the parties.
Junior's claims against Rogers andJohnson pend. Megan's claims against Rogers,
Johnson, Pikett, and San Jacinto County pend.
Junior will take nothing. Megan will take nothing from Rogers,]ohnson, and the
County. Megan's claims against Pikett survive.

4.

Mandate.
The court of appeals held that on the facts then discovered, (a) Junior's claims

against Pikett for fabrication of evidence could not be denied as a matter oflaw; and

(b)

Junior had made a threshold showing of objective unreasonableness in the preparation of the
search and arrest warrant.
Megan and Junior attempt to use the court of appeals's decision. The court
conducted further discover; the record has changed. The determination of whether Megan's
and Junior's claims can be decided as a matter oflaw will be based on the facts now in
evidence.

s.

Limitations.
Megan and Junior sue Johnson and Rogers for searching and imprisoning them

without due process and fabricating Campbell's testimony. Megan also sues Pikett for
manufacturing the scent-pad line-ups. These are claims for damages for violations of
constitutional rights.

Federal law authorizes some actions that stem from violations of constitutional
rights. State law determines how long a person may wait before suing. I Under Texas law, a
person must sue within two years of a violation. Accrual is determined by federal law. 2 The
limitations period begins when the injury is complete, the plaintiff knows it, and knows it's
cause.

A.

Illegal Searches.

Megan and Junior seek damages for unreasonable searches - the subpoenas for their
hair. The limitations period began when the search was complete because the Winfreys
knew who searched them.
They say that the limitations period did not begin until they were acquitted because
challenging the searches meant challenging their convictions. A claim for damages based on
an illegal search does not imply unlawful imprisonment. 3 Here, for example, the searches did
not produce evidence against Megan or Junior. Therefore the searches did not produce
evidence that supported their imprisonment.
Megan was searched in 2005; her claim expired in 2007. She did not sue until May
26, 20I+ Her claims for unreasonable search are untimely.
Junior was searched in 2006; his claim expired in 2008. He did not sue until May
26, 20IO. His claims for unreasonable search are untimely.

B.

Illegal Arrests and Manufacture

of E'Vidcnce.

Civil claims that challenge imprisonment can be brought only once the accused has
been acquitted.+ Concerns for finality and consistency cannot abide the use of civil suits to
attack convictions collaterally.

I

Owens v. Okure, 488 U.S. 235, 239 (I989)'

2

Wallace v. Kato, 549 U.S. 384, 388 (2007)'

3

Heck v. Humphrey, 512 U.S. 477, 487 n·7 (I994)'

+ rd. at 486-87.
-6-

Megan and Junior say that their arrests were not supported by probable cause and
that the evidence used against them was manufactured. The defendants say that the
limitations period began once Megan and Junior were held pursuant to legal process.
The Winfrey's claims are not for detention without legal process;5 rather, they are
for wrongful institution oflegal process. Claims about probable cause and guilt cannot be
brought until the accused is acquitted. 6
On June

12,

2009, a jury acquitted Junior. Less than a year later, he sued. He

brought his claims for arrest without probable cause and the manufacture of evidence within
the limitations period.
On February 27, 20I3, the Texas Court of Criminal Appeals reversed Megan's
conviction. Less than a year later, she sued. She brought her claims for arrest without
probable cause and the manufacture of evidence within the limitations period.

7.

Megan and Rogers.
Megan seeks damages from Rogers because he (a) wrote a misleading affidavit for a

search warrant and (b) coerced Campbell's testimony. Though her claim for the search
must be dismissed as brought after the limitations period, the court still considers its merits.

A.

Misleading Affida'Vit to Search.

To recover, Megan must show that Rogers (a) violated her rights and (b) was not
protected by qualified immunity.
The law requires that Rogers's affidavit include enough facts to enable the magistrate
to make an independent evaluation that there was probable cause to search Megan. 7 Rogers
violated Megan's Fourth Amendment rights if he recklessly included false information or
excluded important information from his affidavit.

5 Wallace, 549 U.S. at 389.
6

rd. at 484.

7

Franks v. Delaware, 438 U.S. I54, I65 (I978).

Even if Rogers violated Megan's rights, he is protected by qualified immunity if the
search was objectively reasonable. 8 Rogers's search was objectively reasonable if supported
by probable cause. 9 Thus, Megan must show (a) Rogers's recklessness in writing a
misleading affidavit and

(b) that a reasonable magistrate, reviewing a corrected affidavit,

would not have found probable cause.
A reasonable magistrate would find probable cause in a corrected affidavit if it
contained enough facts to justify a belief that Megan murdered Burr. The belief must be
more than a suspicion but far less than a preponderance of the evidence. Though a corrected
affidavit must include favorable evidence, once a reasonably credible source comes forward,
the investigators do not have an obligation to investigate further. Io
The court now examines Megan's evidence that her rights were violated and
compares Rogers's affidavit with a corrected affidavit to determine whether a reasonable
magistrate could have found probable cause.

(I)

Claimed Rights Violations.

Megan says that Rogers violated her Fourth Amendment rights by recklessly (a)
including the evidence from the scent'pad line-up,

(b) including the partially erroneous

scent trail, and (c) excluding the favorable DNA evidence.

(a).

Inclusion o!Une,Up.

Megan says that Rogers recklessly included the results ofPikett's line-up in his
affidavit.

8

Malleyv. Briggs, 475 U.S. 335, 344-45 (I986).

See U.S. v. Leon, 468 U.s. 897,92.2'23 (I984); U.S. v. Perez, 4 84 F·3 d 735,743
(5th Cir. 2007).

9

10

Woods v. City of Chi., 234 F.3d 979,997
-8-

bth Cir. 2000).

Even ifPikett's line-up is junk science that has no place in criminal investigations,
Rogers did not know that when he signed the affidavit. Pikett was a police officer with a
nearby agency. He worked with the Federal Bureau ofInvestigations. At least one Texas
court had found testimony by Pikett about the results of a line-up admissible. I I No fact
suggests that Rogers erred in including Pikett's results.

(b). Misidentification of the Scent Used on the Scent Trail.
Huff intended to run the scent trail from Burr's house with Junior' s scent; he
accidentally used Chris Hammond's. Assuming that Huff told Rogers when he discovered
the error, Rogers's false statement that Junior's scent was used was reckless but not
important. Both Hammond and Junior are affiliated with Megan. Junior is her brother;
Hammond was her boyfriend. Had the error been remedied, the value of the evidence would
not have changed.
Rogers's error about whose scent was used was reckless but not important.

(c).

Exclusion of Fa'Vorable

DNA

E'Vidence.

Rogers recklessly excluded that Megan did not contribute to the blood in Burr's
house. Rogers knew this information; the Lab sent him the report.
That Megan's blood did not match the blood at the scene was of some importance.
Burr's murder was violent. The killer could have been cut and bled during the struggle. If
Megan killed Burr and the killer bled during the murder, Megan's blood would have
matched the blood at the scene. The DNA evidence decreases the likelihood that Megan
killed Burr. Rogers recklessly excluded this evidence, violating Megan's Fourth Amendment
rights.

I I Winston v. State, 78 S.W. 3d
pet. refd).

522, 529

(TexApp.-Houston [14th Dist.]

2002,

(2) .

Rogers not Protected by Q.ualified Immuniry.

Rogers was not protected by qualified immunity because there was not probable
cause to search Megan. The investigators had evidence that (a) Megan and Junior wanted to
move in with Burr, but he said no;

(b) Megan was flirtatious but also fought with Burr; (c)

she thought he had money in his house; (d) she was violent towards other school
employees;I2 (e) her scent was on his clothes;1 3 and
her boyfriend traveled from Burr's

m

house to her house.
This evidence supported a reasonable belief that there was a relationship between
Megan and Burr and that she was at his house sometime before the murder. There was no
evidence linking her to the murder. A trier of fact could conclude that a reasonable
magistrate reviewing a corrected affidavit could not have found probable cause to search
Megan.
Megan raises a fact issue about whether Rogers was protected by qualified immunity,
but her claim is barred by limitations. Megan will take nothing from Rogers on this claim.

B.

Coercion of Campbell.

Megan says that Rogers andJohnson coerced Campbell to give false information.
There are no facts to support a claim that Rogers forced Campbell to incriminate Megan.
The data inJohnson's report of the first interview, the video of the second interview, and
Campbell's testimony at trial is consistent. Campbell was not under duress at trial.
Megan will take nothing from Rogers on her claim that he manufactured evidence
against her.

8.

Megan and San Jacinto Counry.
Megan could recover damages from San Jacinto County for the unconstitutional acts

of its final policy maker, Rogers.

Propensity evidence may be used in probable cause determinations. Federal Rules
of Evidence 1001 (d)(3).
12

13 The court evaluates probable cause at the time of the search and does not consider
later evidence questioning the validity ofPikett's methods.
-10-

Megan's claim against Rogers for writing a flawed affidavit to search her is barred by
limitations. Her claim against Rogers for coercing Campbell to give a false statement is not
supported by the facts.
Because Megan takes nothing from Rogers, she will take nothing from the county.

9.

Junior and Rogas.
Junior seeks damages from Rogers for (a) writing a misleading affidavit and

(b)

coercing Campbell's testimony.
Rogers did not write the affidavits used to secure warrants for Junior's search and
arrest. Junior will take nothing from Rogers on this claim.
There are no facts to support Junior's claim that Campbell's testimony was coerced.
Junior will take nothing from Rogers on this claim.

ro.

Junior and Johnson.
Junior seeks damages fromJohnson because he (a) wrote misleading affidavits to

secure warrants and

(b) coerced Campbell's testimony. Though his claim for the search

must be dismissed as brought after the limitations period, the court still considers its merits.

A.

Misleading Affidavit to Search.

To recover,lunior must show that Johnson (a) violated his rights and

(b) was not

protected by qualified immunity.
Johnson violated Junior's Fourth Amendment rights if he recklessly included false
information or excluded important information from his affidavit. Even ifJohnson violated
Junior's rights, he is protected by qualified immunity if the search was supported by
probable cause. Thus, Junior must show (a) Johnson's recklessness in writing a misleading
affidavit and

(b) that a reasonable magistrate, reviewing a corrected affidavit could not have

found probable cause. A reasonable magistrate could find probable cause in a corrected
affidavit if it contained enough facts to justify a belief that Junior murdered Burr.
The court now examines Junior's evidence that his rights were violated and
compares Johnson's affidavit with a corrected affidavit

14

.14

An appendix compares the actual affidavit with a corrected affidavit.
-11-

(I). Claimed Rights Violations.
Junior says that Johnson violated his Fourth Amendment rights by recklessly
excluding (a) the fact that Campbell made two inconsistent statements; (b) the parts of
Campbell's statement contradicted by other evidence; and (c) the DNA and hair evidence.

(a).

Exclusion of Inconsistent Statements Not Reckless.

Junior says that: (a) Campbell's two statements were inconsistent, and (b)
Johnson's omission of the inconsistencies from the affidavit was reckless.
The evidence does not show that the statements were inconsistent. Assuming the
inconsistencies,]ohnson's exclusion of them was not reckless because they are not grave
enough to discount Campbell's statements.
Campbell's statements are not clearly inconsistent. The first interview was not
formal. Johnson's notes were not meant to be a complete record of Campbell's statement.
The notes were part of a live report that was supplemented later. Johnson told Campbell at
the end of their first meeting that he would return with Rogers to take a full statement. It is
likely that Campbell either told a more complete story the second time orJohnson's notes
from the first time were incomplete.
Even if Campbell intended to tell a full story both times and added information the
second time, Johnson's exclusion of that fact in the affidavit was not reckless. It merely
evinces that Johnson either did not (a) see any inconsistencies between Campbell's two
statements or (b) attach any importance to them. A jury cannot reasonably find that he
should have. Johnson did not violate Junior's rights by excluding the inconsistencies.

(b).

Reckless Exclusion of Parts of Campbell's Statement.

Junior says that (a) other evidence gathered by the investigators contradicted parts of
Campbell's statement, and (b) Johnson recklessly omitted the inconsistent parts.
Johnson excluded portions of Campbell's statement that were contradicted by other
evidence. Campbell said that Burr was beaten, cut, and shot. The autopsy report showed
that Burr was beaten and cut but not shot. Campbell said Senior cut off Burr's genitals and
put them in Burr's mouth. There was no evidence of genital mutilation.

Campbell also said that Senior stole a pistol and a .3030 rifle. While Burr's relatives
confirmed that two guns were missing, they said the guns were a shotgun and a .22 rifle.
Campbell said that Senior hid the guns and a knife in a hollow on Winfrey property. The
investigators found a place matching Campbell's description but did not find guns or a knife.
Johnson had either direct knowledge of these inconsistencies or chose not to read
the information in the file he used to write the affidavit.
These omissions were reckless. Inconsistencies between Campbell's statement and
other evidence are a reason to doubt Campbell's credibility. While the court will conclude
that these inconsistencies were not grave enough to discount Campbell's credibility, that
decision was not forJohnson to make. He should have presented all of the important facts.
Johnson violated Junior's Fourth Amendment rights.

(c).

Reckless Exclusion of DNA and Hair E'lJidcnce.

Johnson also omitted that the blood at the scene did not match Megan and Junior
and that the hair did not match Megan.
Johnson had either direct knowledge of this evidence or chose not to read the
information in the file he used to write the affidavit.
Omission of this evidence was reckless. The lack of blood from Megan and Junior at
the crime scene decreased the likelihood that they killed Burr. While the court will
conclude that the inclusion of this favorable evidence would not have been enough to
overcome a reasonable belief that Junior and Megan were involved in the murder, that
decision was not forJohnson to make. He should have presented all of the important facts.
In not doing so, Johnson violated Junior's Fourth Amendment rights.

(2) .

] obnson Protected 1?Y Q.ualified Immuniry.

Johnson was protected by qualified immunity because a reasonable magistrate,
reviewing a corrected affidavit, would have found probable cause to search Junior. Johnson
had evidence of: (a) the relationship, possibly romantic, between Megan and Burr; (b) her
desire for his hidden money, (c) the presence of Megan' s,Junior' s, and Senior's scents on
Burr after his death, and (d) Campbell's statement that Senior murdered Burr with the help
of Megan and Junior.

Campbell was a credible source. Though he included some details that did not
match other evidence, the majority of the facts he gave matched the investigators' theory of
the case. He also gave one fact - about the missing guns - that was unknown at the time.
Though the lack of DNA evidence decreases the likelihood that Megan,]unior, and
Senior killed Burr, it is not enough to cast doubt on the investigators' reasonable belief of
the Winfreys' guilt. The investigators believed that three or four people worked together to
kill Burr and that he was murdered while in his living room with people he considered to be
friends. They reasonably believed that the Winfreys killed him without suffering an injury
in the process.
On the facts before it, the court can decide as a matter oflaw that a reasonable
magistrate, reviewing a corrected affidavit, could have found probable cause to search Junior.
Junior will take nothing fromJohnson on this claim.

B.

Misleading Affida'Vit to Arrest Junior.

Junior says that Johnson recklessly wrote a misleading affidavit for his arrest and that
the arrest was not supported by probable cause.
Johnson says that the court cannot consider this claim because the affidavit for
Junior's arrest was destroyed atJunior's request. The four affidavits before the court are
substantively identical. The content ofJunior's arrest affidavit was the same as Megan's and
Senior's.
Because the search affidavit violated Junior' s rights, the arrest affidavit did as well.
The affidavit supp orting Junior' s arrest contained the same errors as the search affidavit plus
one additional error. The Lab reported that the hairs gathered fromJunior and Senior did
not match the hair found at Burr's house. That omission is unique because it shows that
someone was present in Burr's house other than Burr,]unior, Megan, and Senior.
The additional fact that someone else left hair at Burr's house does not cast enough
doubt on the incriminating evidence to overcome a reasonable belief that Junior participated
in Burr's murder.
One the facts before it, the court can decide as a matter oflaw that a reasonable
magistrate, reviewing a corrected affidavit, could have found probable cause to search Junior.
Junior will take nothing from Johnson on this claim.

C.

Coercion of Campbell.

There are no facts to support Junior's claim that Campbell's testimony was coerced.
Junior will take nothing from Johnson on this claim.

I I.

Megan and] ohnson.
Megan seeks damages fromJohnson because he (a) wrote a misleading affidavit to

secure a warrant for Megan's arrest, and (b) coerced Campbell's testimony.

A.

Misleading Affida'Vit to Arrest Megan.

Johnson's affidavit to arrest Megan contained the same errors as his affidavits to
search and arrest Junior. Johnson violated Megan's Fourth Amendment rights by recklessly
omitting that (a) parts of Campbell's statement were inconsistent with other evidence; and

(b)

DNA and hair evidence did not match any of the Winfreys.

Even ifJohnson had corrected those errors, a reasonable magistrate would have
found probable cause to arrest Megan. The evidence still indicated: (a) a relationship,
possibly romantic, between Megan and Burr; (b) her desire for his hidden money; (c) the
presence ofMegan's,junior's, and Senior's scents on Burr after his death; and (d)
Campbell's statement that Senior murdered Burr with the help of Megan and Junior.
On the facts before it, the court can conclude as a matter oflaw that a reasonable
magistrate reviewing a corrected affidavit could have found probable cause to arrest Megan.
Megan will take nothing from Johnson on this claim.

B.

Coercion of Campbell.

There are no facts to support Megan's claim that Campbell's testimony was coerced.
Megan will take nothing fromJohnson on this claim.

12.

Megan and Pikett.
Pikett invented and ran the scent-pad line-up that identified Megan, Junior, and

Senior as contributors to the scents on Burr's clothes. The investigators used the line-up to
support probable cause to search and seize Megan. Pikett testified about the line-up at
Megan's trial. Megan says that Pikett manufactured the results of the line-up.

Pikett's Background.

A.

Pikett bought a bloodhound as a pet and decided to train it. He attended seminars
about how to use bloodhounds to track people. Based on what he learned, Pikett developed
scent-pad line-ups as a tool to help police officers.
Pikett has a bachelor's degree in chemistry and a master's in sports coaching. He
came up with scent-pad line-ups on his own. He did not receive training, read scientific
literature, or publish peer-reviewed articles.

Performing the Line-Up.

B.

Before meeting the lead investigators, Pikett asked them to gather (a) scents from
suspects and

(b) scents from the victim. Texas Ranger Grover Huff gave a piece of gauze to

each suspect, asked them to rub it on their skin, and had them place the gauze in a plastic
bag. Huff also rubbed a piece of gauze on Burr's clothes and put the gauze in another plastic
bag.
Pikett met the investigators in a field. Pikett brought his dogs, unused paint cans,
and filler scents that he took from prisoners at the Fort Bend County Jail. Pikett stores the
filler scents in a duffie bag that he keeps in the back of his SUV - the same place where his
dogs ride daily.
Huff put either a suspect's scent or a filler scent in each paint can. Huff then put the
paint cans in the field while Pikett prepared one of his dogs. Pikett then gave the dog the
victim's scent.
Pikett walked the dog next to each can to see if the dog "alerted" on any of the cans.
Each dog's alert varies. Pikett has been unable to train his dogs to alert in a specific manner.
Instead, he learns each dog's individual alert as he works with it. If the dog alerts on a can,
Pikett concludes that the scent in the can matches the scent from the victim's clothes.
After the first dog did the line-up, Pikett did the same line-up one or two additional
dogs to confirm the initial result. The position of the cans was not altered for each dog.
Both of the dogs used alerted on Megan's scent and Junior's scent as a match to the
scent on Burr's clothes. All three of the dogs used alerted on Senior's scent as a match.

-r6-

C.

Megan's Claims against Pikett.

Megan sues Pikett for violating her constitutional rights by fabricating the results of
the scent-pad line-up. Megan must show that Pikett (a) violated her rights and (b) was not
protected by qualified immunity from damages.
IfPikett fabricated scientific evidence to help justify Megan's imprisonment, he
violated her Fourteenth Amendment due process rights. His qualified immunity does not
protect him from deliberately or recklessly creating a scientifically inaccurate report. "S
Pikett's behavior is measured against what a reasonable police officer with his training and
experience should have known about the reliability of his report.

D.

Nicery Report.

In evaluating Megan's claim, the court considers the technician's report submitted
by Megan. Pikett objects because Steven Nicely has no experience with scent-pad line-ups or
training bloodhounds. Nicely has extensive experience with scent detecting dogs. No
technician has experience with scent-pad line-ups other than Pikett and the people he
trained. Nicely's report will be admitted and considered commensurate with his experience.
Nicely watched the video of Pikett's line-up and reviewed Pikett's deposition. Nicely
found that: (a) newer scents stand out as fresher amongst older scents; (b) scents from
people who live in the same place smell similarly; (c) dogs can become accustomed to scents
if they are exposed to them regularly; (d) Pikett's claim that his dogs are accurate ninetynine percent of the time is unreliable; (e) Pikett may have influenced his dogs because he
kept them on a short leash and could see in the cans; and (D the dogs may have responded
to deliberate cues from Pikett.

E.

Insufficient Distractors.

Pikett's filler scents were not useful distractors. Most of the scents were old, came
from people who lived in the same place, and were stored in a location near the dogs.
Pikett kept the filler scents for as long as three years. The scents from the suspects
were new. According to Nicely, newer scents stand out amongst older scents. The dogs may
have alerted to Megan's scent because it was fresher than the others.

"5

Brown v. Miller, 519 F.3d at 237 (5th Cir. 2008).

Most of the filler scents came from the Fort Bend County Jail. According to Nicely,
the filler scents that came from the Jail had a common institutional scent. The dogs may
have alerted on Megan's scent because it stood out amongst the scents from the same place.
Pikett also stored the filler scents in a duffie bag in the back of his SUV. The dogs
rode daily in the car next to the bag. According to Nicely, the dogs may have become
accustomed to the filler scents because of prolonged exposure. The dogs may have alerted on
Megan's scent because it was the only one they did not recognize.
Pikett testified at Megan's trial that his dogs have an accuracy rate between ninetynine and one hundred percent. According to Pikett, he believes his dogs are wrong only
when they "identif[y] the wrong person in the line-up."
Pikett cannot check his dogs' accuracy because no other test compares scents. It is
more accurate to say that his dogs have only chosen a filler scent instead of a target scent
twice out of a nearly a thousand line-ups. Nicely reports that a success rate of over ninetynine percent is highly unlikely for scent identifying dogs.
Such a high success rate is an indication not that the dogs are accurate but that the
filler scents are defective as distractors.

F.

Pikett's Influence.

Pikett's method may allow him to intentionally or subconsciously influence the
outcome of the line-up. Pikett kept his dogs on a short leash and looked down while walking
by each can. He used paint cans that did not have lids on them. He may have consciously or
unconsciously influenced the result.
Pikett looked down while walking the line-up and did not ensure that the bags and
gauze used for the suspects matched those used for his filler scents. Pikett may have been
able to tell which can contained a suspect's scent by looking into the can. Also, when Pikett
ran the second or third dogs, he knew which can the first dog had alerted on.
By keeping the dogs on a short leash, Pikett may have been able to cue the dogs to
alert. According to Nicely, a dog may be cued intentionally or subconsciously. He also says
that the dogs should have been trained to run the line-ups by themselves, with a different
handler who did not train them, or at least given a longer leash with more slack to prevent
cumg.

-18-

G.

Dog's Alert.

Pikett admits that he did not successfully train his dogs to alert in a specific way.
Instead, he claims that he knows each dog's alert and can describe the alert before running
the line-up. At Megan's trial, he said that anyone watching the line-up should be able to tell
when the dog alerts but recently admitted that, as the handler, he is uniquely able to feel it.
According to Nicely, the video does not clearly show the dogs alerting on Megan's
scent. It is also unclear whether Pikett cues the dogs or whether their reactions are caused
by smelling the scents.

H.

Pikctt's Culpabiliry.

Megan has shown that the line-ups were likely to confirm the investigators'
suspicions by linking the suspects' scents to the victim's scent. This could have happened
due to ineffective filler scents, Pikett's subconscious acts, or Pikett's intentional acts.
Though he may not have had a motive to harm Megan individually, his methods may have
been designed to help officers confirm their suspicions.
Dogs help humans in a variety of difficult jobs. Dogs reliably guide the blind, flush
game, comfort the ill, locate the lost, subdue the violent, interdict contraband, intimidate
intruder, herd livestock, and track the fugitive.
While using a dog to alert among scents to connect a suspect to an artifact of the
crime follows the pattern of these uses, Megan has introduced enough evidence to create a
question about whether Pikett recklessly or intentionally designed a flawed test. Her claims
against Pikett for fabricating evidence that was used to support her seizure, prosecution, and
imprisonment survive.

13.

Conclusion.
Megan and Junior take nothing on their claims for illegal search against Johnson and

Rogers because they sued after the limitations period.
The court can conclude as a matter oflaw that Rogers and Johnson are protected by
qualified immunity for their arrests of Megan and Junior.
The county is not liable because Rogers is not liable.
No facts support the claims that Johnson and Rogers fabricated Campbell's
testimony.

-19-

The court cannot decide as a matter of law whether Pikett's use of scent-pad line-ups
to produce evidence against Megan was reckless. Megan's claim against Pikett survives.

Signed on October 4, 20r6, at Houston, Texas.

~~

~~~Q-------~

Lynn N. Hughes
United States DistrictJudge

Appendix
Johnson Affidavit

Corrected Affidavit

Junior and Megan visited Burr and asked to
move in with him, but he said no.

Same.

A teacher saw an intimate exchange between
Megan and Burr in which Megan asked Burr
to spend some of the money he had hidden
at his house on her.

Same.

A second teacher saw an angry exchange
between Megan and Burr after which she
muttered that someone should beat the shit
out of him.

Same.

A third teacher said she was assaulted by
Megan over a year before the murder.

Same.

The line-up established that Megan's and
Junior's scents were on Burr's clothes.

Same.

A scent trail connected Burr's house to the
Winfreys' house.

A scent trail connected Burr's house to the
Winfreys house, though the scent used to
trace the trail belonged to Chris Hammond,
Megan's boyfriend.

Omitted.

Megan and Junior did not contribute to the
blood at the scene and Megan's hair did not
match hair found at the scene.

Campbell shared a prison cell with Senior
who admitted to killing Burr.

Same.

Senior told Campbell that Megan and Junior
let him in the back of the house.

In an initial interview, Campbell said that
Megan and Junior let Senior in the back of
the house. Campbell later said that Senior
was accompanied by a cousin.

Campbell knew that Burr was in the living
room when Burr was killed.

Campbell only revealed that he knew Burr
was in the living room when he was killed in
the second interview.

Campbell knew that Burr was badly beaten
and that his neck was cut.

Though Campbell knew in both interviews
that Burr was beaten and cut, in the second
interview he said that Burr was also shot - a
fact contradicted by the autopsy report.

Omitted.

Campbell thought that Senior cut off Burr's
genitals and put them in Burr's mouth.

Senior told Campbell that he stole two guns
from Burr's house. Burr's relative confirmed
that two guns were missing from Burr's
house after the murder - a shotgun and a .22
rifle. The investigators were not aware of the
missing guns before Campbell's statements.

Senior told Campbell that he stole two guns
from Burr - a pistol and a .3030 rifle. Burr's
relative confirmed that two guns were
missing from Burr's house after the murder
- a shotgun and a .22 rifle. The investigators
were not aware of the missing guns before
Campbell's statement. Campbell did not
mention the guns until the second interview.

Senior told Campbell that he hid the guns
and a buck knife in a hollow on Winfrey
property.

Senior told Campbell that he hid the guns
and a knife in a hollow on Winfrey
property. The investigators located an area
that matched that description but did not
find the guns or knife.