* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 21, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-41177

Summary Calendar

EDWARD J. MARTIN,

Plaintiff-Appellee,

v.

KLENT TIPTON,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

(9:05-CV-119)

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Edward D. Martin brought a 42 U.S.C. §

1983 suit against Defendant-Appellant Klent Tipton, alleging that

he violated Martin’s Fourth Amendment rights. Tipton files this

interlocutory appeal challenging the district court’s partial

denial of his motion for summary judgment on qualified immunity

grounds. As we do not have jurisdiction over this appeal, we

dismiss. 
1 Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006)

2

On April 3, 2005, at 5:19 p.m., Tipton, a Texas State Trooper,

pulled over Martin because he was driving 66 mph in a 65 mph zone.

After briefly questioning Martin, Tipton requested that a K-9

officer be brought to the scene. The K-9 officer arrived

approximately 30 minutes later with a trained dog. After the dog

made a positive alert on an odor from Martin’s vehicle, Tipton

searched the car. Although Tipton testified he found a leafy green

substance that he believed to be marijuana residue in the trunk of

the car, he did not remove this substance, and Martin disputes that

this substance was marijuana. Approximately one hour and fortyfive minutes elapsed from the initial stop until Tipton informed

Martin he was free to leave. 

Martin filed this action, alleging that the initial stop, the

prolonged detention, and the search of his vehicle, during which

Martin contends his car was “trashed,” deprived him of his Fourth

Amendment right to be free from unreasonable searches and seizures.

Tipton filed a motion for summary judgment on qualified immunity

grounds. The district court granted the motion with respect to the

initial stop but denied it with respect to the post-stop detention

and the search. Tipton timely filed this interlocutory appeal. 

A district court’s order denying qualified immunity is

immediately appealable to the extent that it turns on an issue of

law.1 Nevertheless, “a defendant, entitled to invoke a qualified
2 Tamez v. City of San Marcos, 62 F.3d 123, 125 (5th Cir.

1995) (internal quotation marks and citation omitted). 

3 See Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004)

(en banc). 

4 Id.

5 McClendon v. City of Columbia, 305 F.3d 314, 322–23

(5th Cir. 2002). 

3

immunity defense, may not appeal a district court's summary

judgment order insofar as that order determines whether or not the

pretrial record sets forth a genuine issue of fact for trial.”2 If

the defendant only argues that, contrary to the district court’s

determination, there is insufficient evidence in the record to

support the plaintiff’s version of the facts, the appellate courts

must dismiss the appeal for lack of jurisdiction.3 We have

appellate jurisdiction only to determine whether Tipton is entitled

to qualified immunity as a matter of law when all facts are viewed

in the light most favorable to Martin.4

To determine whether an official is entitled to qualified

immunity, the court asks (1) whether the plaintiff has alleged a

violation of a constitutional right and (2) whether the defendant’s

conduct was objectively reasonable in light of the clearly

established law at the time of the incident.5

Tipton’s appeal, in essence, challenges the district court's

determination that “the pretrial record sets forth a genuine issue
6 Tamez v. City of San Marcos, 62 F.3d 123, 125 (5th Cir.

1995) (internal quotation marks and citation omitted). 

7 Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004). 

4

of fact for trial.”6 Although Tipton asserts that “[t]here are no

materially disputed facts in this case,” this contention ignores

the district court’s analysis of the facts in the summary judgment

record. Tipton, for example, casts Martin as evasive and

unresponsive, contending that this was part of Tipton’s basis for

the post-stop detention. In contrast, the district court

concluded, based on its viewing of the videotape of the stop, that

Martin appears calm and collected. He does not become

angry or raise his voice, and he answers questions

succinctly. He identifies where he is coming from and

where he is going. Martin discusses his previous

employment and appears to try to answer the Officer’s

questions truthfully. While Martin was not overly

cooperative or extremely forthcoming in his answers, his

answers and demeanor as seen in the videotape of the

incident do not, by themselves, or in conjunction with a

messy car, establish, for summary judgment purposes, that

a reasonable officer would have had suspicion of criminal

activity sufficient to justify a detention of over 30

minutes while waiting for a drug dog.

The district court further concluded that the questions raised by

the videotape were not answered by the summary judgment evidence.

Tipton would have us evaluate the district court’s conclusion

that a jury could reject Tipton’s evaluation of Martin’s answers

and demeanor based on Martin’s demeanor in the videotape. As “we

cannot challenge the district court's assessments regarding the

sufficiency of the evidence” on interlocutory appeal,7 we do not

have jurisdiction over this one. Tipton’s interlocutory appeal of
5

the district court’s partial denial of qualified immunity is

therefore,

DISMISSED.