Gunter v. Wheeler et al

Filing 15

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Jordan Gunter. It is therefore recommended that Plaintiffs claims against the ATF and the TSA be dismissed with prejudice for want of jurisdiction. Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JORDAN GUNTER

§
§
§
§
§

V.
DARBY WHEELER, et al.

A-17-CV-0136-RP

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
The undersigned Magistrate Judge submits this Report and Recommendation to the District

Court pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the
United States District Court for the Western District of Texas, Local Rules for the Assignment of
Duties to United States Magistrates.
Before the Court is Plaintiff’s complaint (Dkt. No. 1). Plaintiff is pro se and has been granted
leave to proceed in this case in forma pauperis. For the reasons set forth below, the undersigned
recommends that the Complaint be dismissed with prejudice.
STATEMENT OF THE CASE
Plaintiff is confined in the United States Penitentiary in Pine Knot, Kentucky. Named as
defendants in this matter are Darby Wheeler, an employee of the Bureau of Alcohol, Tobacco, and
Firearms (“ATF”), Duane Collins, an employee of the Transportation Security Administration
(“TSA”), and federal agencies the ATF, and the TSA. Plaintiff alleges a cause of action arising in
Pflugerville, Travis County, Texas.
Plaintiff alleges Defendant Wheeler violated Plaintiff’s Fourth Amendment right to be free
of unreasonable searches and seizures when he obtained a search warrant for Plaintiff’s Pflugerville

residence based on “evidence illegally seized by a local police department.” (Dkt. No. 1 at 3).
Plaintiff further alleges that Defendant Wheeler obtained a warrant to arrest Plaintiff based on
information he knew to be false. (Dkt. No. 1 at 4).1 Plaintiff alleges that, during the execution of the
search warrant on February 23, 2016, Defendants Collins and Wheeler exceeded the scope of the
search warrant by seizing items not specified in the warrant. (Dkt. No. 1 at 4-5; Dkt. No. 1-1 at 3).
Plaintiff further alleges that he was not shown the affidavit in support of the search warrant, and that
the warrant did not specify the location and description of property to be searched or the person or
property to be seized with particularity. (Dkt. No. 1 at 5-6). Plaintiff asserts that because he was not
provided with the affidavit supporting the warrant or the attachments to the warrant, the warrant was
“plainly invalid,” citing Groh v. Ramirez, 540 U.S. 551 (2004) (Dkt. No. 1 at 6). Plaintiff alleges the
ATF and the TSA are liable for the violation of his Fourth Amendment rights because Collins and
Wheeler were acting under the color of law as agents of TSA and ATF. (Dkt. No. 1 at 9).
With regard to damages, Plaintiff alleges that, “[i]n detrimental reliance on incompetent
counsel, in addition to the fruits of the illegally seized evidence being used against [him], [he]
unknowingly and non-intelligently entered a guilty plea to the indictment, and was sentenced to
imprisonment.” (Dkt. No. 1 at 6).2 Plaintiff seeks monetary damages related to depression and
1

Plaintiff alleges the search warrant was “based off evidence illegally seized by a local police
department,”and that Defendant Wheeler “recklessly [proffered] said evidence while knowing the seizure
to have been wholly illegal.” (Dkt. No. 1 at 3). Plaintiff asserts a firearm was illegally seized by the “City
of Pearsall” when he was “on-duty, in full uniform, as a command-level officer of the local county jail” and,
accordingly, that he was “exempt from prohibited status pursuant to 18 U.S.C. § 925.” (Dkt. No. 1 at 8).
2

The Court takes judicial notice of the pleadings and orders in United States v. Bautista Gunter, No.
5:16-CR-1076 DAE. See Fed. R. Evid. 201(b). On February 23, 2016, an arrest warrant was executed on
Plaintiff, who was eventually charged with unlawful transportation of firearms, being a prohibited person
in possession of a firearm, attempt to carry a weapon on an aircraft, and making a false statement to a
department or agency of the United States. Plaintiff pled guilty to being a prohibited person in possession
of a firearm and attempt to carry a weapon on an aircraft, and was sentenced to an aggregate term of 65

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fatigue, and asserts that he has been unjustly imprisoned. (Dkt. No. 1 at 7-9). Plaintiff seeks
monetary damages in the amount of $300,000 for lost past and future income; $150,000 for his loss
of tangible assets; $100,000 for pain and suffering; $50,000 in legal expenses, and $300,000 in
punitive damages.
Plaintiff also seeks declaratory and injunctive relief, asking for: “Declaratory Judgment,”3
“Writ of Prohibition,” “Relief from unlawful conversion,” “Emergency/Temporary Injunctive
Relief,” and “Future equitable or extraordinary relief.” (Dkt. No. 1 at 10).
DISCUSSION AND ANALYSIS
A.

Screening of the Complaint under 28 U.S.C. §§ 1915 & 1915A

The Court has permitted Plaintiff to proceed in forma pauperis. His Complaint is thus subject
to sua sponte dismissal under 28 U.S.C. § 1915(e)(2). And, as a federal prisoner seeking redress from
an officer or employee of a governmental entity, Plaintiff’s Complaint is also subject to preliminary
screening pursuant to 28 U.S.C. § 1915A, regardless of whether he proceeds in forma pauperis.
Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Pursuant to both § 1915(e)(2) and § 1915A,
the Court must dismiss the complaint, or any portion of the complaint, if it is frivolous, malicious,

months’ imprisonment. Plaintiff’s appeal in that matter is pending before the Fifth Circuit Court of Appeals.
Plaintiff asserted in his complaint (filed in February 2017) that his “conviction [for violation of section
922(g)(1)] is almost certainly to be vacated within a month’s time.” (Dkt. No. 1-1 at 6-7).
3

Plaintiff appears to seek a declaratory judgment that 28 U.S.C. § 922(g)(1) is unconstitutional as
applied to Plaintiff, citing Heller, (presumably District of Columbia v. Heller, 554 U.S. 570 (2008)), and
Binderup v. Attorney General, United States of America, 836 F.3d 336 (3d Cir. 2016), petition for cert. filed,
(U.S. Jan. 5, 2017) (No. 16-847), a case decided in September of 2016, after the entry of his guilty plea on
May 16, 2016. (Dkt. No. 1-1 at 5-6). In Binderup, a divided court determined that a Pennsylvania
misdemeanor conviction for corrupting a minor and a Maryland misdemeanor conviction for carrying a
handgun without a license were not serious enough to strip the defendants of their Second Amendment rights
by finding them guilty of violating section 922(g). The court noted section 921(a)(20)(B) exempts from
section 922(g) state-law misdemeanors punishable by less than two years’ imprisonment. 836 F.3d at 351-52.

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or fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief. Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013); Martin, 156
F.3d at 579-80. A complaint is frivolous when it “lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is
“based on an indisputably meritless legal theory,” “or on a close but ultimately unavailing one.” Id.
at 327. When reviewing a pro se plaintiff’s complaint, the court must construe plaintiff’s allegations
as liberally as possible. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hernandez v. Velasquez, 522
F.3d 556, 561 (5th Cir. 2008).
B.

Sufficiency of the Complaint

Although Federal Rule of Civil Procedure 8 mandates only that a pleading contain “a short
and plain statement of the claim showing that the pleader is entitled to relief,” this standard demands
more than unadorned accusations, “labels and conclusions,” “a formulaic recitation of the elements
of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Bell Atlantic
v. Twombly, 550 U.S. 544, 555-57 (2007). A complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. This plausibility
standard is not simply a “probability requirement,” but imposes a standard higher than “a sheer
possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
standard is properly guided by “[t]wo working principles.” Id. First, although “a court must accept
as true all of the allegations contained in a complaint,” that “tenet is inapplicable to legal
conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements . . .” Id. at 678. Second, “[d]etermining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its
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judicial experience and common sense.” Id. at 679. Accordingly, the Court must initially identify
which portion of the pleadings that are no more than legal conclusions not entitled to the assumption
of truth, then assume the veracity of well-pleaded factual allegations, and determine whether those
allegations plausibly give rise to an entitlement to relief. If not, “the complaint has alleged–but it has
not show[n]–that the pleader is entitled to relief.’” Id. (internal quotations omitted).
C.

Bivens v. Six Unknown Federal Narcotics Agents

Plaintiff files his Complaint pursuant to Bivens v. Six Unknown Federal Narcotics Agents,
403 U.S. 388 (1971). In Bivens, the Supreme Court held that an individual injured by a federal
agent’s alleged violation of the individual’s constitutional rights may bring an action for damages
against the agent, providing deterrence against and relief for the deprivation of federally guaranteed
rights caused by a person acting under color of federal law. A Bivens action mirrors those brought
pursuant to 42 U.S.C. § 1983, which applies to a person acting under color of state law. Izen v.
Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005). To state a Bivens claim, Plaintiff must allege
sufficient facts to establish that the Defendants are federal actors and that the Defendants, while
acting under color of federal law, violated Plaintiff’s rights under the Constitution or laws of the
United States. Bivens, 403 U.S. at 395-96. Bivens provides a cause of action against federal agents
only in their individual capacities and requires a showing of personal involvement. Correctional
Serv. Corp. v. Malesko, 534 U.S. 61, 70-71 (2001); Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir.
1998).
Plaintiff alleges the ATF and the TSA are liable for the violation of his Fourth Amendment
rights because Defendants Collins and Wheeler were acting under the color of law as agents of TSA
and ATF. (Dkt. No. 1 at 9). Because federal agencies are not entities which may be sued pursuant
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to Bivens, Defendant Bureau of Alcohol, Tobacco, and Firearms and Defendant Transportation
Security Agency must be dismissed as defendants in this matter. Malesko, 534 U.S. at 71-72; FDIC
v. Meyer, 510 U.S. 471, 484-86 (1994).
Additionally, claims for declaratory and injunctive relief which, if granted, would result in
the Court mandating official government action, are not cognizable in a Bivens action. Malesko, 534
U.S. at 74; Solida v. McKelvey, 820 F.3d 1090, 1094-95 (9th Cir. 2016); Higazy v. Templeton, 505
F.3d 161, 169 (2d Cir. 2007). See also Solsona v. Warden, F.C.I., 821 F.2d 1129, 1131 (5th Cir.
1987) (holding that a federal prisoner could not attack the constitutionality of his conviction in a
Bivens action when he had not ascertained the validity of the conviction in a section 2255 action).
Accordingly, Plaintiff’s claims for declaratory and injunctive relief are barred, and they are
additionally barred by the doctrine of Heck v. Humphrey, as more thoroughly explained below.
D.

Claims barred by Heck v. Humphrey

In Heck v. Humphrey, 512 U.S. 477, 486 (1994), the Supreme Court held that a claim that
effectively attacks the constitutionality of a conviction or imprisonment is not cognizable under
§ 1983 and does not accrue until that conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such a
determination, or called into question by a federal court’s issuance of a writ of habeas corpus. The
doctrine established in Heck applies to Bivens actions. Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir.
1994).
Accordingly, when success in a civil “damages action would implicitly question the validity
of conviction or duration of sentence, the litigant must first achieve favorable termination of his
available state, or federal habeas, opportunities to challenge the underlying conviction or sentence.”
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Muhammad v. Close, 540 U.S. 749, 751 (2004). The Heck rationale has been extended to civil rights
actions seeking declaratory or injunctive relief as well as monetary damages. Edwards v. Balisok,
520 U.S. 641, 648 (1997); Clarke v. Stalder, 154 F.3d 186, 190-91 (5th Cir. 1998). Accordingly, to
the extent that Plaintiff seeks declaratory or injunctive relief regarding his conviction for attempting
to bring a firearm on an airplane or for being a prohibited possessor of a firearm, his claims are
barred by Heck. However, because the evidence seized during the search of Plaintiff’s home was not
the only evidence supporting his guilt in his criminal proceedings, his challenge to the execution of
the warrant does not necessarily imply the invalidity of his conviction and, therefore, the claims
regarding the search warrant are not barred by Heck.
E.

The validity of the search warrant

Plaintiff alleges that Defendant Wheeler, at the urging of Defendant Collins, obtained a
warrant to arrest Plaintiff based on information he knew to be false, and that Defendant Wheeler
used that arrest warrant to “substantiate” the application for the search warrant. (Dkt. No. 1 at 4).
A federal criminal complaint against Plaintiff was filed on February 18, 2016, the day before
the search warrant was issued, alleging Plaintiff had violated 18 U.S.C. § 922(g)(1)– that complaint
was signed by a United States Magistrate Judge and an arrest warrant was issued, and the complaint
and warrant were sealed. (United States v. Gunter, No. 5:16-CR-00176-DAE, at Dkt. No. 2,Dkt. No.
3, Dkt. No. 4). Prior to the filing of the complaint, Plaintiff was being investigated by Defendant
Collins as a person “who had impersonated being a law enforcement officer on multiple occasions
in various airports while carrying a firearm.” (United States v. Gunter, Dkt. No. 3 at 2). The affidavit
in support of the arrest warrant stated that Defendant Wheeler had contacted the Circuit Court of
Maryland for Washington County and confirmed that, in 2010, Plaintiff had pleaded guilty to a
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violation of a state statute criminalizing possession of a concealed deadly weapon, a misdemeanor.
Id. Plaintiff was sentenced to a term of three years imprisonment, although the sentence was
suspended and Plaintiff was placed on probation, and Plaintiff later violated probation. Id. The
affidavit further noted that, after moving to Texas from Massachusetts, Plaintiff had “obtained a
contract to operate and provide personnel for the facility management of the Frio County Jail,” and
that “Frio County officials and law enforcement officers were led to believe that [Plaintiff] was a
commissioned Law Enforcement Officer (LEO). He is not.” Id. The affidavit states that, on or about
January 10, 2016, the Pearsall Police Department determined that Plaintiff was not a LEO and not
licensed to carry firearms, and they seized a Glock pistol and “law enforcement tactical gear” from
Plaintiff. (United States v. Gunter, Dkt. No. 3 at 3).
Plaintiff alleges that, on January 10, 2016, the Pearsall police “illegally seized a firearm and
other equipment from Plaintiff.” (Dkt. No. 1-1 at 1). Plaintiff alleges he was not arrested, although
he was told there was probable cause to suspect he had violated state statutes by unlawfully carrying
a weapon and impersonated a peace officer. (Dkt. No. 1-1 at 1-2). Plaintiff notes that he was indicted
on a charge of impersonating a public servant on January 29, 2016. (Dkt. No. 1-1 at 2). Plaintiff
avers that “The county case was subsequently terminated for Brady issues.” Id. Plaintiff asserts that
he was not a prohibited possessor of a firearm as that term is defined by section 922(g), and was not
“impersonating” a police officer because, he alleges, he was at that time an “on-duty corrections
official.” (Dkt. No. 1 at 3; Dkt. No. 1-1 at 1-2). Accordingly, Plaintiff argues, the statement by
Defendant Wheeler in the affidavit for the arrest warrant, that Plaintiff had been identified by the
Pearsall Police Department as a prohibited possessor and as impersonating a peace officer, was
knowingly false. (Dkt. No. 1 at 4).
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The search warrant challenged by Plaintiff was issued in Case Number 1:16-mj-00122-ML,
United States v. 16201 Malden Dr. Pflugerville, TX, in the United States District Court for the
Western District of Texas. The application for the search warrant (Dkt. No. 1-1 in No. 16-mj-00122),
indicates that the search was related to a violation of 18 U.S.C. § 922(g)(1), the statute governing
the crime of being a Prohibited Person in Possession of a Firearm. The application for the warrant
was docketed and the warrant issued on February 19, 2016, and the warrant was sealed that same
date. (Dkt. No. 3 in No. 16-mj-00122). On March 1, 2016, the search warrant was returned as
executed on February 23, 2016. (Dkt. No. 4 in No. 16-mj-00122). After the search was concluded,
“[Plaintiff] was arrested on the Federal warrant4 and transported to the U.S. Marshals Service in
Austin for processing . . . A copy of the search warrant was provided to [Plaintiff] and an inventory
of items seized left at the residence.” (Dkt. No. 1-2 (attachment to Plaintiff’s Complaint) at 8).
The affidavit in support of the search warrant alleged that, after being convicted of possession
of a concealed deadly weapon in Maryland and sentenced to a suspected sentence of three years
incarceration and placed on probation, Plaintiff violated the terms of probation by possessing a
“‘tactical vest’ as a bouncer,” and his sentence was modified to two years of supervised probation.
(Dkt. No. 1-1 at 2 in No. 16-mj-00122). The affiant had “confirmed with ATF Regional Counsel in
Maryland that the above listed misdemeanor offense prohibited [Plaintiff] from possessing firearms.”
Id. The affidavit in support of the search warrant noted that, between January 10, 2016, and
February 2, 2016, Plaintiff had been arrested in Frio County on a charge of impersonating a police
officer, and that the conditions of his release bond in that matter “specifically” prohibited him from

4

Also attached to the Complaint is a page of an affidavit seeking a warrant of arrest signed by
Defendant Wheeler, and signed by United States Magistrate Judge Henry Bemporad on February 18, 2016.

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“possessing any law enforcement equipment, uniforms, and tactical gear, but did not require him to
turn in such items.” (Dkt. No. 1-1 at 3 in No. 16-mj-00122-ML). Additionally, the affidavit noted
that TSA officials had investigated reports that Plaintiff had carried guns in various airports while
transporting prisoners on behalf of the Frio County Sheriff’s Office, although Plaintiff was not a
sworn officer in Frio County, and was not authorized to carry a weapon. Id. Defendant Wheeler’s
search of the TSA database of state and local law enforcement officers authorized to fly armed,
indicated that Plaintiff had, on nine occasions, traveled on a commercial airline as an armed law
enforcement officer, using fraudulent credentials identifying him as a Texas Peace Officer authorized
to fly armed with a weapon. (Dkt. No. 1-1 at 4 in No. 16-mj-00122-ML). On six occasions Plaintiff
had fraudulently affirmed that he had completed the required training for a law enforcement officer
to fly armed. Id. Three prisoners who were transported by aircraft accompanied by Plaintiff,
“confirmed seeing [Plaintiff’s] handgun during their transport aboard commercial aircraft, and they
confirmed that [Plaintiff] provided credentials to TSA allowing him to sign in to the secure area of
the airport (circumventing security) as an armed LEO.” Id.
Defendant Wheeler further swore that he obtained records from a licensed gun dealer
showing that, between October of 2015 and December of 2016, Plaintiff had purchased firearms
from that dealer, including five Glock pistols, a Sig Sauer pistol, and a Smith & Weston pistol. (Dkt.
No. 1-1 at 4-5 in No. 16-mj-00122-ML). At the time the arrest and search warrants were issued, two
of these weapons had been seized by police—the other weapons were seized during the execution
of the search warrant at Plaintiff’s residence. (Dkt. No. 1-1 at 5; Dkt. No. 4 at 3-4 in No. 16-mj00122-ML). Defendant Wheeler averred in the search warrant affidavit that, pursuant to his
investigation, he believed Plaintiff was a prohibited person in possession of firearms, and that he had
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falsely represented himself as being a law enforcement officer and thereby gained access by false
pretenses to secure areas of several airports. (Dkt. No. 1-1 at 6 in No. 16-mj-00122-ML).
None of the material statements made by Defendant Wheeler in the affidavit for the search
warrant or the affidavit in support of the arrest warrant were made with “reckless disregard or
intentional falsity,” United States v. Triplett, 684 F.3d 500, 504 (5th Cir. 2012), and, accordingly,
Plaintiff has failed to state a claim for relief in this regard. Turpin v. County of Rock, 262 F.3d 779,
783 (8th Cir. 2001) (holding only an affidavit for a search warrant containing materially false
statements or omissions, knowingly or recklessly made in conscious disregard for truth, violate the
Fourth Amendment). Additionally, if the affidavits are read without the allegedly false statement
regarding Plaintiff’s action of impersonating a peace officer as delineated by the Pearsall Police
Department, there is still probable cause for issuance of the warrants. Id.; Walden v. Carmack, 156
F.3d 861, 871 (8th Cir. 1998) (holding that, if a search warrant application or affidavit contains
errors reflecting deliberate falsehoods or reckless disregard for the truth, the court must set aside
those statements and review the remaining portions to see if probable cause is established).
Accordingly, even eliminating that portion of the affidavit challenged by Plaintiff, i.e., the
statements with regard to Plaintiff’s arrest by the Pearsall Police Department and his arrest on
charges of impersonating a public servant, the affidavits in support of the arrest warrant and search
warrant supplied sufficient probable cause for the warrants to issue. Therefore, Plaintiff has not
stated a legitimate claim that his Fourth Amendment rights were violated by Defendant Wheeler with
regard to statements made in the affidavits seeking an arrest warrant and a search warrant.

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F.

The execution of the warrant

Plaintiff alleges that, during the execution of the search warrant on February 23, 2016,
Defendants Collins and Wheeler exceeded the scope of the warrant by seizing items not specified
in the warrant; i.e., body armor, a Taser, Plaintiff’s company paperwork, company ID cards, a digital
radio, and “company patches/badges.” (Dkt. No. 1 at 4-5; Dkt. No. 1-1 at 3).
Attached to Plaintiff’s Complaint is a Search and Seizure Warrant, signed by a Federal
Magistrate Judge on February 19, 2016. (Dkt. No. 1-2 at 7). The warrant states on its face that the
place to be searched is “16201 Malden Dr, Pflugerville, Texas,” and references an “Attachment A”
with regard to the property to be searched, and an “Attachment B” as specifying the property to be
seized. (Dkt. No. 1-2 at 7). “Attachment B” (Dkt. No. 1-2 at 6) lists:
Firearms; ammunition; and other evidence pertaining to the possession of firearms
or ammunition, including . . . ammunition magazines, records and receipts indicating
the purchase, repair, receipt, sale or possession of firearms . . . possession of law
enforcement credentials, identification, insignia and other police accessories that he
had used to falsely indicate he was a LEO and all other fruits and instrumentalities
of a violation of 18 U.S.C. § 922(g)(1) . . . and for any documents that establish the
persons who have control over property and vehicles searched and from which
evidence is seized, such as: personal mail . . . personal identification . . .
(Dkt. No. 1-2 at 6).
Attached to the Complaint is a search warrant return document averring that the search
included the kitchen, from which a firearm and body armor “with badge and ammunition” were
seized, and an automobile, from which “Shotgun shells, peace officer paperwork and [a] Taser” were
retrieved. (Dkt. No. 1-2 at 8). The inventory of the seized property lists six firearms, a Motorola
radio, “Assorted ammunition in various calibers, Assorted firearm magazines, Assorted ID’s, badges,

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patches, paperwork associated with PSP business,” “One Ballistic vest w/badge,” “One Taser,” two
tax forms in Plaintiff’s name, and “Assorted Ammo from portable safe.” (Dkt. No. 1-2 at 5).
Body armor, a digital radio, and a Taser, could all logically be categorized as “police
accessories;” and company badges, paperwork, and ID cards, could all logically be categorized as
“law enforcement credentials, identification, [and] insignia” and/or “records and receipts indicating
the purchase . . . sale or possession of firearms . . . and other financial records.” Accordingly, the
specific items cited by Plaintiff as being seized outside the scope of the warrant were not outside the
scope of the warrant, and this claim is frivolous and must be dismissed.
G.

Particularity

The remaining claim in the Complaint is Plaintiff’s claim that his Fourth Amendment right
to be free of an unreasonable search and seizure was violated because he was not provided with the
affidavit in support of the search warrant or the attachments which were incorporated by reference
in the search warrant.
In Bivens, the Supreme Court held that individuals could “recover money
damages for any injuries [they have] suffered as a result of [a federal agent’s]
violation of the [Constitution].” 403 U.S. at 397, 91 S.Ct. 1999. As with § 1983
actions against state and local officials, the Court has held that a claimant seeking
relief under Bivens must overcome the federal official’s qualified immunity. Saucier
v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). To overcome that
immunity, claimants must show (1) that the agents violated their constitutional rights
and (2) that the constitutional right at issue is “sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Id. at 202, 121
S.Ct. 2151 (quotations omitted); see Flaskamp v. Dearborn Pub. Schs., 385 F.3d 935,
940-41 (6th Cir. 2004).
Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco & Firearms, 452 F.3d 433, 438
(6th Cir. 2006).

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Plaintiff alleges that he was not shown the affidavit in support of the search warrant, and that
the warrant did not specify the location and description of the property to be searched or the property
to be seized. (Dkt. No. 1 at 5-6). Plaintiff alleges that, although he was shown the “face sheet” of the
warrant, the incorporated attachments were not provided to Plaintiff. (Dkt. No. 1 at 5). Plaintiff
contends that, because he was not provided with the affidavit supporting the warrant or the
attachments to the warrant, the warrant was “plainly invalid,” citing Groh v. Ramirez, 540 U.S. 551
(2004). (Dkt. No. 1 at 6). Plaintiff alleges that, “For this warrant to have been legally sufficient, the
supporting scope documents (whether an affidavit, supplement, or otherwise) must accompany the
warrant at execution.” (Dkt. No. 1-1 at 4).
Attachment A to the application for the warrant lists the place to be searched as Plaintiff’s
“residence located at 16201 Malfen Dr., Pflugerville, Texas . . . single story residence with tan brick
and tan siding . . . and a dark brown garage door . . . The request to search includes the curtilage and
all outbuildings as well as al vehicles with an affirmative link to [Plaintiff] that are on the property
or immediately adjacent to the property.” (Dkt. No. 1-1 at 7 in 16-mj-00122-ML). As noted above,
Attachment B lists the items to be seized as “Firearms . . . and other evidence pertaining to the
possession of firearms or ammunition, . . . possession of law enforcement credentials, identification,
insignia and other police accessories that [Plaintiff] had used to falsely indicate he was a LEO and
all other fruits and instrumentalities of a violation of 18 U.S.C. § 922(g)(1) . . .” (Dkt. No. 1-1 at 8
in 16-mj-00122-ML).
The Warrant Clause of the Fourth Amendment categorically prohibits the
issuance of any warrant except one particularly describing the place to be searched
and the persons or things to be seized. The manifest purpose of this particularity
requirement was to prevent general searches. By limiting the authorization to search
to the specific areas and things for which there is probable cause to search, the
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requirement ensures that the search will be carefully tailored to its justifications, and
will not take on the character of the wide-ranging exploratory searches the Framers
intended to prohibit. Thus, the scope of a lawful search is defined by the object of the
search and the places in which there is probable cause to believe that it may be found.
Just as probable cause to believe that a stolen lawnmower may be found in a garage
will not support a warrant to search an upstairs bedroom, probable cause to believe
that undocumented aliens are being transported in a van will not justify a warrantless
search of a suitcase.
Maryland v. Garrison, 480 U.S. 79, 84-85 (1987) (internal quotations omitted).
Plaintiff relies on the Supreme Court’s opinion in Groh v. Ramirez, 540 U.S. 551 (2004),
for his entitlement to relief. In Groh, the Supreme Court found a search unconstitutional because the
warrant contained a facial “glaring deficiency,” recognizable by “any reasonable police officer.” 540
U.S. at 564. In the section of the warrant calling for “a description of the ‘person or property’ to be
seized,” id. at 554, the agent had inadvertently typed “single dwelling . . . blue in color.” Id. at 554
n.2. When the magistrate signed the warrant, this description was the only description of the items
that could be seized. Id. Such a warrant, the Supreme Court concluded, was “facial[ly] invalid[ ],”
id. at 557, and, because “the particularity requirement is set forth in the text of the Constitution, no
reasonable officer could believe that a warrant that plainly did not comply with that requirement was
valid.” Id. at 563. Absent any evidence on the face of the warrant that it incorporated the attached
affidavit, the Supreme Court concluded, the warrant was “manifestly invalid,” and the search
“warrantless” and thus “constitutionally fatal.” Id. at 564. The Groh court determined: “The law
permits an affidavit incorporated by reference to amplify particularity, notwithstanding that, by its
terms, the Fourth Amendment ‘requires particularity in the warrant, not in the supporting
documents.’” United States v. Triplett, 684 F.3d 500, 505 (5th Cir. 2012), quoting Groh, 540 U.S.
at 557-58.

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Interpreting the holding in Groh, the Sixth Circuit Court of Appeals concluded:
No doubt, “[t]he fact that the application adequately described the ‘things to
be seized’ does not save the warrant” from the risk of facial invalidity because “[t]he
Fourth Amendment by its terms requires particularity in the warrant, not in the
supporting documents.” Groh, 540 U.S. at 557, 124 S.Ct. 1284. But, as Groh
explained, “We do not say that the Fourth Amendment forbids a warrant from
cross-referencing other documents.” Id. And “[i]ndeed,” as Groh further recognized,
“most Courts of Appeals have held that a court may construe a warrant with reference
to a supporting application or affidavit if the warrant uses appropriate words of
incorporation, and if the supporting document accompanies the warrant.” Id. at 55758, 124 S.Ct. 1284.What doomed the warrant in Groh was not the existence of a
supporting affidavit that particularly described the items to be seized, but the failure
of the warrant to cross-reference the affidavit at all.
Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco & Firearms, 452 F.3d 433, 439
(6th Cir. 2006). When deciding whether a warrant was validly executed when the incorporated
affidavits and attachments were not provided to the subject of the search at the time of the search,
the Sixth Circuit specifically noted that, “nothing about the text of the [Warrant] clause suggests that
a warrant valid upon issuance may become invalid upon execution when the scope and timing of the
search is conducted in accordance with the terms of the warrant.” Id. at 441. The Sixth Circuit noted
that the precise issue in Groh was the facial insufficiency of the warrant, “not the failure to
incorporate the affidavit and bring it during the search.” Id. at 443 (emphasis in original).
The question before the en banc Sixth Circuit in Baranski was precisely the same question
presented herein: for a search to be deemed reasonable, pursuant to the Fourth Amendment, must
the affidavit and/or attachment incorporated into the search warrant be given to an occupant at the
outset of the search and/or accompany the agents during the search. 452 F.3d at 441-43. In a
thorough and well-reasoned opinion, the Sixth Circuit’s answer to this question was “no.” Id. The

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undersigned notes that an application for a writ of certiorari from the decision in Baranski was
denied. See 549 U.S. 1321 (2007).
The Baranski court noted that the Groh opinion “acknowledged that the Fourth Amendment
does not compel officers to present a warrant before a search.” Id. at 442 (emphasis in original).
“And the Court disclaimed resolving whether officers must produce a warrant, to say nothing of a
supporting affidavit, when the occupant requests it at the outset of the search.” Id. (“the Court left
open only the possibility that it would be ‘unreasonable’ to decline such a request, not that the search
would become warrantless if the agents declined such a request.”), citing Groh, 540 U.S. at 562 n.5.
And, contrary to Plaintiff’s assertion, the failure to provide these documents at the time of the search
did not violate any alleged federal constitutional right to “monitor” the search of his residence. See
id. at 443 (“the requirement of particular description does not protect an interest in monitoring
searches.”), citing United States v. Grubbs, 547 U.S. 90 (2006).5 “The salient point is that Groh did
not establish a one-size-fits-all requirement that affidavits must accompany all searches to prevent
a lawfully authorized search from becoming a warrantless one.” Id. at 444.
The opinion in Groh has not been broadly cited in opinions in section 1983 or Bivens cases.
The Groh opinion was cited as relevant to the holdings in the published opinions in: United States
v. Franz, 772 F.3d 134 (3d Cir. 2014) (suppression not warranted when a list of items to be seized
did not appear on the face of the warrant because the list was sealed, although this violated the
Fourth Amendment, because the officer acted in good faith); United States v. Rosa, 626 F.3d 56 (2d
Cir. 2010) (holding that unincorporated and unattached supporting documents do not cure an

5

In United States v. Grubbs, the Supreme Court noted that “neither the Fourth Amendment nor” the
Federal Rules of Criminal Procedure impose the requirement that “an executing officer must present the
property owner with a copy of the warrant before conducting the search.” 547 U.S. 90, 98-99 (2006).

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otherwise defective search warrant); United States v. Hamilton, 591 F.3d 1017 (8th Cir. 2010)
(holding a search warrant was valid where it incorporated an attached affidavit); United States v.
Waker, 534 F.3d 168 (2d Cir. 2008) (finding a warrant valid where an affidavit was incorporated in
and attached to the warrant); United States v. Cazares-Olivas, 515 F.3d 726 (7th Cir. 2008) (holding
that the Fourth Amendment does not require the officers to carry or display a paper warrant); United
States v. Yusuf, 461 F.3d 374 (3d Cir. 2006) (upholding a search where the warrant did not explicitly
incorporate an attached affidavit); United States v. Hurwitz, 459 F.3d 463 (4th Cir. 2006) (holding
that an affidavit referenced in a search warrant supplied the necessary particularity notwithstanding
the officers’ failure to take the affidavit with them when executing the warrant); Doe v. Groody, 361
F.3d 232 (3d Cir. 2004) (noting that a warrant may be construed in light of an accompanying
affidavit incorporated within the warrant).
The Fifth Circuit Court of Appeals has cited Groh in: United States v. Toussaint, 838 F.3d
503, 507 (5th Cir. 2016) (citing Groh for the proposition that warrantless searches and seizures
inside a home are presumptively unreasonable); Trent v. Wade, 801 F.3d 494, 495-96 (5th Cir. 2015)
(denying the defendant’s invitation to create a “new, per se exception to the knock-and-announce
requirement when affirming the district court’s determination that material fact issues precluded
summary judgment.”); United States v. Triplett, 684 F.3d 500, 505 (5th Cir. 2012) (quoting Groh:
“The law permits an affidavit incorporated by reference to amplify particularity, nothwithstanding
that, by its terms, the Fourth Amendment ‘requires particularity in the warrant, not in the supporting
documents.’” and holding that: “When viewed alongside the affidavit, the warrant’s list of items to
be seized is reasonably focused.”); United States v. Gray, 669 F.3d 556, 564 (5th Cir. 2012) (citing
Groh as describing the inquiry for good faith under the Fourth Amendment as the same as the
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objective-reasonableness prong under qualified immunity), rev’d on other grounds by 133 S. Ct.
(2012); United States v. Allen, 625 F.2d 830, 835 (5th Cir. 2010) (affirming the District Court’s
denial of a motion to suppress because, although the warrant lacked particularity, in part because the
attachment detailing the items to be seized was not incorporated by reference, the officers executing
the warrant were familiar with what could be seized and acted in good faith); Hunt v. Tomplait, 301
Fed. App’x 355, 360 (5th Cir. 2008) (holding that a search team leader has a duty to verify that the
house being searched is the house specified in the warrant); United States v. Van Meter, 280 Fed.
App’x 394, 396 (5th Cir. 2008) (upholding the denial of a motion to suppress where the items seized
“all fit into Attachment B to the warrant under the section detailing the items to be seized. Attaching
such an itemized list gives a warrant sufficient particularity,” in a case which does not state whether
the attachment was presented at the time of the search); and United States v. Jacobs, 125 Fed. App’x
518, 523 (5th Cir. 2005) (holding a search was not unreasonable where the warrant authorizing the
search was not at the scene until ten minutes after the search began, pursuant to Groh’s conclusion
that the executing officer was not required to serve the warrant prior to commencing the search).
The Fifth Circuit Court of Appeals has not cited Baranski in any published opinion.
As explained by the Sixth Circuit Court of Appeals in Baranski, the Supreme Court’s
decision in Groh does not establish the point of law relied on by Plaintiff to establish that his Fourth
Amendment rights were violated by the “failure” of Defendants Wheeler and Collins to provide him
with a copy of the attachments to the search warrant at the time of the search. Additionally, even if
his rights were violated by this failure, the Defendants are entitled to qualified immunity on this
claim because such a right was not “clearly established.”

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H.

Qualified immunity

Qualified immunity is “‘an immunity from suit rather than a mere defense to liability.’”
Pearson v. Callahan, 555 U.S. 223, 237 (2009), quoting Mitchell v. Forsyth, 472 U.S. 511, 526
(1985); Vander Zee v. Reno, 73 F.3d 1365, 1368-69 (5th Cir. 1996). Accordingly, the Supreme Court
has instructed the lower federal courts to resolve the issue of a defendant’s immunity at the earliest
point in litigation. Pearson, 555 U.S. at 237, citing Mitchell, 472 U.S. at 525 (“Unless the plaintiff’s
allegations state a claim of violation of clearly established law, a defendant pleading qualified
immunity is entitled to dismissal before the commencement of discovery.”). Even limited discovery
on the issue of qualified immunity “must not proceed until the district court first finds that the
plaintiff’s pleadings assert facts which, if true, would overcome the defense of qualified immunity.”
Wicks v. Mississippi State Emp’t. Serv., 41 F.3d 991, 994 & n.10 (5th Cir. 1995) (emphasis in
original).
Qualified immunity protects “all but the plainly incompetent or those who knowingly violate
the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). “Qualified immunity shields federal and state
officials from money damages unless a plaintiff pleads facts showing (1) that the official violated
a statutory or constitutional right, and (2) that the right was clearly established at the time of the
challenged conduct.” Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011) (internal quotations omitted).
The qualified immunity analysis asks whether, based upon the facts taken in the light most favorable
to the party asserting the injury, did the officers’ conduct violate a constitutional right and, if so, was
that right clearly established at the time of the alleged violation. Pearson, 555 U.S. at 236; Saucier
v. Katz, 533 U.S. 194, 201 (2001); Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001).

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The law must be so clear that “every reasonable officer” would have known that what he is
accused of doing is a violation of the Constitution. Anderson v. Creighton, 483 U.S. 635, 640 (1987).
In Brosseau v. Haugen, 543 U.S. 194 (2004), the Supreme Court held that qualified immunity is
appropriate unless a precedent “squarely governs” the outcome of the case, id. at 201, or the case
is so “obvious” that general tests clearly establish the answer, even without a body of relevant case
law. Id. at 199. “[W]e do not deny immunity unless existing precedent must have placed the statutory
or constitutional question beyond debate.” Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011)
(internal quotations omitted).
The constitutional question governing Defendant’s liability in this matter, i.e., whether
documents incorporated on the face of a search warrant must be attached to the warrant or present
at the time of the search, is under debate. With regard to the precise issue in this matter, the Sixth
Circuit reasoned in Baranski that the defendants were entitled to qualified immunity because, inter
alia, the Eighth Circuit Court of Appeals had held in the plaintiff’s criminal appeal that the
defendant officers had acted in good faith in executing the subject warrant. Baranski, 452 F.3d at
448. The Sixth Circuit surveyed published legal opinions on point, and found a split among the
Circuit Courts of Appeal that had examined the issue regarding the officers’ failure to provide the
plaintiff with the warrant’s attachments at the time of the search. At that time, the Ninth Circuit
Court of Appeals had held that “an affidavit necessary to satisfy the particularity requirement not
only must be incorporated into the warrant but also much accompany the warrant at the scene.” Id.
at 449, citing United States v. McGrew, 122 F.3d 847, 850 (9th Cir. 1997). In 2000, in Bartholomew
v. Commonwealth of Pennsylvania, 221 F.3d 425, 429 (3d Cir. 2000), a case wherein the material
incorporated into the warrant was not provided at the time of the search because it had been sealed,
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the Third Circuit Court of Appeals adopted the same rule stated in McGrew, but also found that the
rule was not sufficiently established to deny the defendant qualified immunity on this issue.
The First, Second, Eighth, Ninth, and Tenth Circuit Court of Appeals, and the District of
Columbia Circuit Court of Appeals, adhere to the rule that an affidavit or attachment providing the
particularity of the warrant must be attached to the warrant or otherwise present at the time of the
search. Rosa, 626 F.3d at 63 (2d Cir.); McGrew, 122 F.3d at 850 (9th Cir.); United States v.
Williamson, 1 F.3d 1134, 1136 n.1 (10th Cir. 1993); Rickert v. Sweeney, 813 F.2d 907, 909 (8th Cir.
1987) (involving a search wherein the attachment was not incorporated into the warrant but was
present at the search); United States v. Dale, 991 F.2d 819, 848 (D.C. Cir. 1993) (“‘An affidavit may
provide the necessary particularity for a warrant if it is either incorporated into or attached to the
warrant . . . [or] is merely present at the search.’” quoting Rickert, 813 F.2d at 909); United States
v. Klein, 565 F.2d 183, 193 n.3. (1st Cir. 1977). The Sixth and Seventh Circuit Court of Appeals
have not adopted this requirement. Cazares-Olivas, 515 F.3d at 730 (7th Cir.); Baranski, 452 F.3d
at 441-43 (6th Cir.). The Third Circuit Court of Appeals has continued to hold that, although the
failure to attach the documents to the warrant violates the Fourth Amendment, the exclusionary rule
does not require suppression of the evidence seized because a reasonable officer could believe that
providing the documents at the time of the search is not required. United States v. Wright, 777 F.3d
635, 639-40 (2015).
The Fifth Circuit Court of Appeals does not appear to have addressed this precise issue. In
United States v. Beamont, 972 F.2d 553, 561 (1992), the court held that a warrant was valid where
an affidavit supplying particularity was incorporated by reference into the warrant, but only implied
that the affidavit must accompany the warrant, and specifically declined to create “a technical,
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bright-line rule” that “absent such an incorporation the warrant must necessarily fail,” because an
executing officer could, in good faith, rely on the magistrate’s probable-cause determination in
issuing the warrant. Id. In United States v. Cherna 184 F.3d 403, 412-13 (5th Cir. 1999) (collecting
cases), the court found circuit precedent was “not clear” as to whether an affidavit must be physically
attached to the warrant for the search to survive constitutional muster. In an unpublished opinion,
United States v. Wicks, 115 Fed. App’x 648, 650 (5th Cir. 2014), the Fifth Circuit upheld denial of
a motion to suppress, stating: “The failure to deliver a copy of a search warrant [incorporating an
affidavit] until the day after a search will not mandate suppression under the Fourth Amendment
absent a showing of prejudice.”
The fact that the Circuit Courts of Appeal are not in agreement as to the “rule” governing the
issue before this Court weighs in favor of finding Defendants are entitled to qualified immunity.
But this disagreement among the circuits at the time of the search, to say nothing of
the weight of the authority in our circuit and elsewhere favoring the defendants’
assessment of these constitutional issues, shows that the agents did not violate clearly
established law. Wilson v. Layne, 526 U.S. 603, 618, 119 S.Ct. 1692, 143 L.Ed.2d
818 (1999) (noting that when judges “disagree on a constitutional question, it is
unfair to subject police to money damages for picking the losing side of the
controversy.”).
Baranski, 452 F.3d at 449.
The central question is whether someone in the officer’s position could reasonably
but mistakenly conclude that his conduct complied with the Fourth Amendment. An
officer might reach such a mistaken conclusion for several reasons. He may be
unaware of existing law and how it should be applied. Alternatively, he may
misunderstand important facts about the search and assess the legality of his conduct
based on that misunderstanding. Finally, an officer may misunderstand elements of
both the facts and the law. Our qualified immunity doctrine applies regardless of
whether the officer’s error is a mistake of law, a mistake of fact, or a mistake based
on mixed questions of law and fact.
Groh, 540 U.S. at 566-67 (internal citations omitted).
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The constitutional “rule” central to the finding of immunity or liability in this matter, i.e.,
whether a warrant is rendered invalid or not sufficiently specific because incorporated documents
were not conveyed to the occupant of the dwelling to be searched at the time of the search, was not
(and is not) clearly established. Groh did not clearly establish such a rule, and the Circuit Courts of
Appeal, to the extent they have squarely addressed the precise issue, are not in agreement.
Accordingly, even if Plaintiff’s Fourth Amendment rights were violated by Defendants’
alleged failure to present him with the affidavit and attachments referenced in the search warrant at
the time of the search, Defendants are entitled to qualified immunity on this claim for relief. Harlow
v. Fitzgerald, 457 U.S. 800, 818-19 (1982).
RECOMMENDATION
It is therefore recommended that Plaintiff’s claims against the ATF and the TSA be dismissed
with prejudice for want of jurisdiction. It is further recommended that Plaintiff’s claims against
Defendants Wheeler and Collins be dismissed with prejudice for failure to state a claim, pursuant
to 28 U.S.C. § 1915(e). Alternatively, it is recommended that Plaintiff’s claims against Defendants
Wheeler and Collins be dismissed with prejudice as Defendants Wheeler and Collins are protected
by qualified immunity.
It is further recommended that the Court include within its judgment a provision expressly
and specifically warning Plaintiff that filing or pursuing any further frivolous lawsuits may result in
(a) the imposition of court costs pursuant to Section 1915(f); (b) the imposition of significant
monetary sanctions pursuant to Fed. R. Civ. P. 11; (c) the imposition of an order barring Plaintiff
from filing any lawsuits in this Court without first obtaining the permission from a District Judge

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of this Court or a Circuit Judge of the Fifth Circuit; or (d) the imposition of an order imposing some
combination of these sanctions.
It is further recommended that Plaintiff be warned that if he files more than three actions or
appeals while he is a prisoner which are dismissed as frivolous or malicious or for failure to state a
claim on which relief may be granted, then he will be prohibited from bringing any other actions in
forma pauperis unless he is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g).
In the event this Report and Recommendation is accepted, adopted or approved, it is recommended
that the Court direct the Clerk to e-mail a copy of its order and judgment to the keeper of the
three-strikes list.
OBJECTIONS
Within 14 days after receipt of the magistrate judge’s report, any party may serve and file
written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636
(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained
within this report within 14 days after service shall bar an aggrieved party from de novo review by
the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest
injustice. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996) (en banc); Thomas
v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).
SIGNED this 23rd day of August, 2017.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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