FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 21 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-15489

Non-Argument Calendar

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D.C. Docket No. 04-01830-CV-ORL-31-KRS

DARRELL J. YOUNG, Individually and as guardian

of Da'Mond Young, a minor,

EMERALD MCNEIL, Individually and as guardian

of Da'Mond Young, a minor,

Plaintiffs-Appellees,

versus

DONALD F. ESLINGER, in his official capacity as

the Sheriff of Seminole County Sheriff's Office,

CHARLES B. FAGAN, Deputy Sheriff, in his

individual capacity, et al.,

Defendants-Appellants.

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Appeal from the United States District Court

for the Middle District of Florida

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(June 21, 2007)

Before BIRCH, MARCUS and COX, Circuit Judges.
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PER CURIAM:

Plaintiffs Darrell J. Young and Emerald McNeil, acting for themselves and as

guardians of their minor son Da’Mond Young, sued Donald Eslinger, in his official

capacity as the Sheriff of Seminole County; Deputy Sheriffs Charles Fagan, Wytosia

Wiley, and Jeffrey Wilbur; Senior Agent RayBronson; and Sergeant Jeff Duncan, all

in their individual capacities. 

The district court granted summary judgment to Defendants on all claims

except: (1) the Count VII Section 1983 Fourth Amendment claims against Defendants

Fagan, Wiley, Wilbur, Bronson, and Duncan; and (2) the Count I state law false

arrest/imprisonment claim against Defendant Eslinger. The Defendants (except for

Wiley) appeal the denials of summary judgment.

After initial briefs were filed in this case, the court issued a jurisdictional

question. Having reviewed the parties’ submissions in response to that question, we

conclude that we have jurisdiction to decide the qualified immunity questions

presented in the appeal. But, we do not exercise jurisdiction to review the denial of

summary judgment to Defendant Eslinger on the state law false arrest/imprisonment

claim. Eslinger argues that the district court erred in denying himsummary judgment

on this claim because: (1) under Florida law, probable cause is a complete bar to such

an action, and (2) probable cause existed to stop, detain, and search Plaintiffs. He
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does not argue that he is entitled to summary judgment because he enjoyed any kind

of immunity for his actions. This is not an appeal of a final judgment, so we have no

independent jurisdiction to consider whether the district court erred in denying

Eslinger summary judgment on this claim. And, we decline to exercise any

discretionary pendent appellate jurisdiction we may have because Eslinger is not a

party to the appeal of the qualified immunity issues, and the question he raises is not

“necessary to ensure meaningful review” of the qualified immunity decision because

we resolve the qualified immunity questions by finding arguable probable case and/or

arguable reasonable suspicion. Swint v. Chambers County Comm'n, 514 U.S. 35, 51,

115 S. Ct. 1203, 1212 (1995).

42 U.S.C. § 1983

We conclude that the district court erred in denying Defendants Fagan, Wilbur,

Bronson, and Duncan summary judgment on the Section 1983 Fourth Amendment

claims. Each Defendant is entitled to a separate analysis of the applicability of the

qualified immunity doctrine to his actions. Importantly, for purposes of each

individual Defendant’s qualified immunity defense to a Fourth Amendment claim, we

do not ask whether reasonable suspicion or probable cause actually existed. When

a law enforcement officer seeks summary judgment on the basis of qualified

immunity, we determine only “‘whether reasonable officers in the same circumstances
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and possessing the same knowledge as the Defendants could have believed that

[reasonable suspicion or] probable cause existed.’” Swint v. City of Wadley,

Alabama, 51 F.3d 988, 996 (11th Cir. 1995) (quoting Von Stein v. Brescher, 904 F.2d

572, 579 (11th Cir.1990)); see also Jackson v. Sauls, 206 F.3d 1156, 1165-66 (11th

Cir. 2000) (citing Swint, 51 F.3d at 996).

Deputy Fagan

Deputy Fagan was the uniformed officer who stopped Plaintiffs’ vehicle.

According to the undisputed facts, Deputy Fagan stopped the vehicle on the

instruction of another officer. Fagan was provided with information that there was

an unrestrained child in Plaintiffs’ vehicle. And, Fagan knew that his duty on that

day was to stop vehicles that had been identified by undercover officers as being

involved in a drug investigation. Given this information, Fagan acted with arguable

reasonable suspicion in performing the stop and detaining Plaintiffs until the drug dog

arrived. See United States v. Perkins, 348 F.3d 965, 970 (11th Cir. 2003).

Furthermore, after Deputy Wilbur and his drug dog circled the vehicle, Fagan was

informed by Wilbur that the dog had alerted to drugs in Plaintiffs’ vehicle. Thus,

when he searched Plaintiffs’ vehicle, Fagan acted with arguable probable cause. See

Merrett v. Moore, 58 F.3d 1547, 1551 n.7 (11th Cir. 1995) (“[A]n alert by a narcotics
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trained dog establishes probable cause to believe a car contains illegal narcotics.”).

Fagan is entitled to qualified immunity.

Deputy Wilbur

Deputy Wilbur was the officer who handled the drug dog. He also participated

in the search of Plaintiffs’ vehicle after he perceived that the drug dog alerted to the

presence of drugs in the vehicle. Plaintiffs dispute whether the dog actually alerted;

but, they do not provide any evidence to raise an issue of fact as to whether Wilbur

believed that the dog alerted. Wilbur himself testified to that belief. Given the

uncontroverted evidence that Wilbur believed that the drug dog alerted to the

presence of drugs in Plaintiffs’ vehicle, Wilbur acted with arguable probable cause

in proceeding to search Plaintiffs’ vehicle. Wilbur is entitled to qualified immunity.

Senior Agent Bronson

Senior Agent Bronson received information from another officer in the field

that a vehicle conforming to the description as Plaintiffs’s vehicle had been involved

in a drug transaction with the subject of an ongoing narcotics investigation. Based

on that information, Senior Agent Bronson ordered the stop of Plaintiffs’ vehicle.

Bronson acted as a reasonable officer possessing this knowledge would; he had

arguable reasonable suspicion. Thus, he is entitled to qualified immunity.

Sergeant Duncan
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Sergeant Duncan was not involved in the stop or search of Plaintiffs or their

vehicle. His only role on the day in question was to radio to other officers working

the narcotics case that he had seen a transaction at the gas station between Earl Jack

Williams (a known drug dealer) and persons in a dark SUV. Whether Plaintiffs were

the persons Duncan saw at the station may be disputed, but what he reported is not

in dispute. Plaintiffs offer no evidence raising an issue of fact regarding Duncan’s

veracity in reporting what he saw. Moreover, Duncan did not order the stop. He did

not detain Plaintiffs. He did not participate in the search. For those reasons, Duncan

cannot be held liable for any violation of Plaintiffs’ Fourth Amendment rights.

For the foregoing reasons, Defendant Eslinger’s appeal is DISMISSED. The

district court’s denial of summary judgment for Defendants Fagan, Wilbur, Bronson,

and Duncan on the Section 1983 claims is REVERSED. The case is REMANDED

with instructions to enter summary judgment for Defendants Fagan, Wilbur, Bronson,

and Duncan on the Section 1983 Fourth Amendment claims. 

DISMISSED IN PART; REVERSED IN PART; AND REMANDED WITH

INSTRUCTIONS.