IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

ERIC LAMAR ELLIS, § 

 § 

Plaintiff, § 

 § 

V. § No. 3:22-cv-675-N-BN 

 § 

RUBI GARZA LOPEZ and BRIAN § 

MARSHALL BARRIER, § 

 § 

Defendants. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiff Eric Lamar Ellis brings this pro se civil rights action against two 

Irving police officers, Defendants Rubi Garza-Lopez (Garza) and Brian Marshall 

Barrier (collectively, the Officers) in their individual capacities, based on Ellis’s 

detention and a subsequent search. See Dkt. Nos. 7, 8 (amend. compl.). 

Chief United States District Judge David C. Godbey referred Ellis’s lawsuit to 

the undersigned United States magistrate judge for pretrial management under 28 

U.S.C. § 636(b) and a standing order of reference. 

The Officers answered the amended complaint, asserting qualified immunity. 

See Dkt. No. 13. In response, the Court ordered the Officers to move for summary 

judgment on the defense. See Dkt. No. 15. 

Ellis, shortly thereafter, filed a motion to strike the Officers’ defense of 

qualified immunity, see Dkt. No 16, which the Court carried pending a ruling on the 

Officers’ motion for summary judgment, see Dkt. No. 18. Ellis then filed his own 

motion for summary judgment, which he amended, essentially asking that the Court 

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deny the Officers qualified immunity. See Dkt. Nos. 19, 20. 

And the Officers moved for summary judgment based on qualified immunity, 

see Dkt. No. 21-24, 26, to which Ellis responded, see Dkt. No. 25. 

The undersigned now enters these findings of fact, conclusions of law, and 

recommendation that the Court should deny Ellis’s motions to strike and for 

summary judgment and grant the Officers’ motion for summary judgment on 

qualified immunity, dismissing the claims against the Officers – and therefore Ellis’s 

lawsuit – with prejudice. 

Applicable Background 

Ellis alleges that the Officers unlawfully seized him and searched his vehicle 

without a warrant, probable cause, or reasonable suspicion, in violation of the Fourth 

Amendment. See Dkt. No. 7 at 3-4. He also alleges that the Officers violated the 

Eighth Amendment by instructing him to destroy marijuana found in his vehicle. See 

id. at 4. The Officers assert an entitlement to qualified immunity on, and so request 

dismissal of, these claims. See Dkt. No. 13 at 3. 

As further explained below, Ellis, as the party asserting an injury, may only 

defeat summary judgment on qualified immunity by showing that the facts supported 

by evidence and viewed in the light most favorable to him demonstrate a 

constitutional violation. But Ellis failed to provide his own evidence, either in support 

of his motions or by verifying his pleadings. See Dkt. Nos. 7, 8, 16, 19, 20, 25. So, as 

background, the following facts are drawn from evidence offered by the Officers, 

including bodycam footage: 

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On August 4, 2021, the Officers and Officer Josh Weinschreider observed 

Ellis’s vehicle parked at a city park at approximately 4:52 a.m., a time at which the 

park was closed. See Dkt. No. 21 at 5, 16. As the Officers and Officer Weinschreider 

approached the vehicle, they found Ellis inside either sleeping or unconscious. See id. 

at 5, 16, 25. All three officers scanned the vehicle with flashlights and stood close 

enough to smell the contents of the vehicle. See id. All three claimed they smelled 

marijuana coming from Ellis’s vehicle’s open windows. See id. 

Within two minutes of all three officers approaching the vehicle, Ellis awoke, 

and Officer Garza asked him the exit the vehicle and proceeded to search him. See 

Dkt. No. 24 (Garza bodycam footage at 2:00-3:20). Letting him know that his vehicle 

smelled of marijuana, the Officers instructed Ellis to stay away from his vehicle and 

in the custody of Officer Weinschreider while the Officers searched the vehicle. See 

Dkt. No 21. at 9-10. 

Upon hearing that his vehicle smelled of marijuana, Ellis put his nose to the 

vehicle windows and argued that it did not. See Dkt. No. 24 (Garza bodycam footage 

at 7:50). But, within approximately five minutes, Officer Garza found marijuana in 

Ellis’s vehicle. See Dkt. No. 21 at 6. And, as the Officers searched Ellis’s vehicle, Ellis 

admitted to Officer Weinschreider that marijuana was in the vehicle and that it 

would be “not hard to find.” Dkt. No. 21 at 31. 

After discovering the marijuana, the Officers allowed Ellis to choose to destroy 

his marijuana or receive a citation. See id. at 6, 17, 26. He chose to destroy it and was 

immediately released. See id.

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Legal Standards 

“A plaintiff makes out a § 1983 claim if he ‘shows a violation of the Constitution 

or of federal law, and then shows that the violation was committed by someone acting 

under color of state law.’” Rich v. Palko, 920 F.3d 288, 293-94 (5th Cir. 2019) (cleaned 

up; quoting Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008)). 

“But government officials performing discretionary duties” can respond to such 

a claim by asserting qualified immunity. Id. at 294 (citing Haverda v. Hays Cnty., 723 

F.3d 586, 598 (5th Cir. 2013)). 

If they do, a court must consider each official’s actions separately, see Meadours 

v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007), on an expedited basis, see Ramirez v. 

Guadarrama, 3 F.4th 129, 133 (5th Cir. 2021) (“Because qualified immunity is an 

immunity from suit, not merely a defense to liability, ‘it is effectively lost if a case is 

erroneously permitted to go to trial.’ It is for this reason that a denial of qualified 

immunity is immediately appealable and that a defendant’s entitlement to qualified 

immunity should be determined at the earliest possible stage of the litigation. This 

scheme prevents a defendant entitled to immunity from being compelled to bear the 

costs of discovery and other pre-trial burdens.” (quoting Mitchell v. Forsyth, 472 U.S. 

511, 526 (1985); citations omitted)). 

“[T]he doctrine of qualified immunity attempts to balance two competing 

societal interests: ‘the need to hold public officials accountable when they exercise 

power irresponsibly and the need to shield officials from harassment, distraction, and 

liability when they perform their duties reasonably.’” Joseph v. Bartlett, 981 F.3d 319, 

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328 (5th Cir. 2020) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009). “These 

interests are distilled into a legal standard, an affirmative defense, that shields public 

officials sued in their individual capacities ‘from liability for civil damages insofar as 

their conduct does not violate clearly established statutory or constitutional rights of 

which a reasonable person would have known.’” Id. (quoting Harlow v. Fitzgerald, 

457 U.S. 800, 818 (1982)). 

Phrased differently, this immunity “attaches when an official’s conduct ‘does 

not violate clearly established statutory or constitutional rights of which a reasonable 

person would have known.’” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) 

(quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)). 

The doctrine therefore “gives government officials breathing room to make 

reasonable but mistaken judgments[] and protects all but the plainly incompetent or 

those who knowingly violate the law.” Stanton v. Sims, 571 U.S. 3, 6 (2013) (per 

curiam) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (internal quotation 

marks omitted)); accord City & Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 611 

(2015). “‘Accordingly, “qualified immunity represents the norm,” and courts should 

deny a defendant immunity only in rare circumstances.’” Angulo v. Brown, 978 F.3d 

942, 949 (5th Cir. 2020) (quoting Romero v. City of Grapevine, 888 F.3d 170, 176 (5th 

Cir. 2018) (quoting, in turn, Harlow, 457 U.S. at 807)). But see, e.g., Jamison v. 

McClendon, 476 F. Supp. 3d 386 (S.D. Miss. 2020) (calling for reconsideration of the 

doctrine); Hoggard v. Rhodes, 141 S. Ct. 2421, 2422 (2021) (Thomas, J., statement 

respecting denial of cert.) (calling on his colleagues to, “in an appropriate case ... 

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reconsider either our one-size-fits-all test or the judicial doctrine of qualified 

immunity more generally”). 

The “qualified-immunity inquiry is two-pronged.” Cunningham v. Castloo, 983 

F.3d 185, 190 (5th Cir. 2020) (citing Garcia v. Blevins, 957 F.3d 596, 600 (5th Cir. 

2020)). 

 Do “the facts, viewed in the light most favorable to the party asserting 

the injury, show that the official’s conduct violated a constitutional 

right”? Id. at 190-91 (citing Garcia, 957 F.3d at 600) 

 Was “the right at issue ... ‘clearly established’ at the time of the alleged 

misconduct”? Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019) 

(quoting Pearson, 555 U.S. at 232). 

“In order for a right to be clearly established, ‘[t]he contours of the right must 

be sufficiently clear that a reasonable official would understand that what he is doing 

violates that right.’” Ramirez, 3 F.4th at 133 (quoting Anderson v. Creighton, 483 U.S. 

635, 640 (1987)). “The reasonableness of the official’s conduct and the degree to which 

the particular right in question was clearly established are thus merged into one issue 

for purposes of the qualified immunity analysis.” Id. at 133-34; cf. Nerio v. Evans, 974 

F.3d 571, 575 (5th Cir. 2020) (“Fair notice requires clearly established law. That is, 

the law must ‘clearly prohibit the officer’s conduct in the particular circumstances 

before him’ so ‘every reasonable official’ knows not to engage in that conduct.” 

(quoting D.C. v. Wesby, 138 S. Ct. 577, 590 (2018); citing al-Kidd, 563 U.S. at 742)). 

Under this standard, “[q]ualified immunity is justified unless no reasonable 

officer could have acted as [the defendant officers] did here, or every reasonable officer 

faced with the same facts would not have [acted as the defendant officers did].” Tucker 

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v. City of Shreveport, 998 F.3d 165, 174 (5th Cir. 2021) (quoting Mason v. Faul, 929 

F.3d 762, 764 (5th Cir. 2019) (internal quotation marks omitted) (citing, in turn, 

Wesby, 138 S. Ct. at 590 (“It is not enough that the rule is suggested by then-existing 

precedent. The precedent must be clear enough that every reasonable official would 

interpret it to establish the particular rule the plaintiff seeks to apply. Otherwise, the 

rule is not one that ‘every reasonable official’ would know.”))). 

A court may “analyze the prongs in either order or resolve the case on a single 

prong.” Cunningham, 983 F.3d at 191 (quoting Garcia, 957 F.3d at 600 (internal 

quotation marks omitted)). But addressing this affirmative defense on a motion for 

summary judgment is not exactly intuitive. 

“A plaintiff suing for a constitutional violation has the ultimate burden to show 

that the defendant violated a constitutional right ... whether or not qualified 

immunity is involved.” Joseph, 981 F.3d at 329 (footnote omitted). 

But, “[w]hen a public official makes ‘a good-faith assertion of qualified 

immunity,’ that ‘alters the usual summary-judgment burden of proof, shifting it to 

the plaintiff to show that the defense is not available.’” Id. at 329-30 (quoting Orr v. 

Copeland, 844 F.3d 484, 490 (5th Cir. 2016)); accord Batyukova v. Doege, 994 F.3d 

717, 724 (5th Cir. 2021) (“The defense of qualified immunity ‘alters the usual 

summary judgment burden of proof.’ Once a defendant properly raises the defense, 

the burden shifts to the plaintiff to demonstrate that the defendant is not entitled to 

the defense’s protection.” (citations omitted)). “In other words, to shift the burden to 

the plaintiff, the public official need not show (as other summary-judgment movants 

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must) an absence of genuine disputes of material fact and entitlement to judgment 

as a matter of law.” Joseph, 981 F.3d at 330 (citing King v. Handorf, 821 F.3d 650, 

653-54 (5th Cir. 2016)). 

Once shifted, “the plaintiff bears the burden of demonstrating that a defendant 

is not entitled to qualified immunity.” Valderas v. City of Lubbock, 937 F.3d 384, 389 

(5th Cir. 2019) (per curiam) (citation omitted). And, “[t]o rebut [a public official’s] 

qualified immunity defense, [a] [p]laintiff[] must point to summary judgment 

evidence ‘(1) that [the official] violated a federal statutory or constitutional right and 

(2) that the unlawfulness of the conduct was ‘clearly established at the time.’” Cloud 

v. Stone, 993 F.3d 379, 383 (5th Cir. 2021) (citations omitted). 

As to the first prong of the qualified-immunity inquiry, to overcome a public 

official’s motion for summary judgment on qualified immunity, the plaintiff “must 

show that there is a genuine dispute of material fact and that a jury could return a 

verdict entitling the plaintiff to relief for a constitutional injury” – just as would be 

required “if the plaintiff did not face qualified immunity.” Joseph, 981 F.3d at 330. 

That is, the plaintiff must defeat summary judgment by showing that “the facts, 

viewed in the light most favorable to the party asserting the injury, show that the 

official’s conduct violated a constitutional right,” Cunningham, 983 F.3d at 190-91. 

When considering this showing, the Court must “accept the plaintiff’s version 

of the facts (to the extent reflected by proper summary judgment evidence) as true.” 

Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004). But the Court need not 

do so if the plaintiff’s “version ‘is blatantly contradicted by the record, so that no 

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reasonable jury could believe it.’” Joseph, 981 F.3d at 325 (quoting Scott v. Harris, 

550 U.S. 372, 380 (2007); citing Orr, 844 F.3d at 590). 

When accepting the plaintiff’s well-supported version of the disputed facts, the 

Court must “view the facts and draw reasonable inferences in the light most favorable 

to” the plaintiff. Id. (footnote omitted). And, particularly applicable in pro se cases, 

“verified complaint[s] and other verified pleadings serve as competent summary 

judgment evidence.” Falon v. Holly, 480 F. App’x 325, 326 (5th Cir. 2012) (per curiam) 

(citing Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003)); see, e.g., Mitchell v. 

Cervantes, 453 F. App’x 475, 477-78 (5th Cir. 2011) (per curiam). 

But, if, for example, “the [evidence] ... offer[ed] in opposition to summary 

judgment is neither sworn nor declared under penalty of perjury to be true and 

correct, it is not competent evidence.” Smith v. Palafox, 728 F. App’x 270, 274 (5th. 

Cir. 2018) (per curiam) (cleaned up; quoting Davis v. Fernandez, 798 F.3d 290, 292 

(5th Cir. 2015); citation omitted). 

Additionally, while a court generally “must view the facts in the light most 

favorable to the non-moving party and draw all reasonable inferences in its favor,” 

Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citation omitted), the Court 

must here “assign greater weight, even at the summary judgment stage, to the facts 

evident from video recordings taken at the scene,” Newman v. Guedry, 703 F.3d 757, 

761 (5th Cir. 2012) (quoting Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 

2011) (citing, in turn, Scott, 550 U.S. 372)). 

In sum, “[w]hen one party’s description of the facts is discredited by the record, 

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[a court] need not take his word for it but should view ‘the facts in the light depicted 

by the videotape.’” Id. (quoting Scott, 550 U.S. at 380-81); accord Joseph, 981 F.3d at 

325 (Where a court “proceed[s] through the facts in detail, including the disputed 

facts, considering each officer’s actions independently,” it “draw[s] these facts from 

the record, prioritizing the video evidence.” (footnotes omitted)); see also Garcia v. 

Orta, 47 F.4th 343, 350-51 & n.2 (5th Cir. 2022) (discussing the scope of Scott, 

including that its holding reaches beyond video evidence, to similar items in “the 

record” “capable of utterly discrediting the plaintiff’s version of the facts” – including 

still photos, taser logs, and “what can be heard, and not just what can be seen, on a 

video” (citations omitted)). 

But “the plaintiff’s version of those disputed facts must also constitute a 

violation of clearly established law.” Joseph, 981 F.3d at 330. So, “when qualified 

immunity is involved, at least in this circuit, a plaintiff has the additional burden to 

show that the violated right was ‘clearly established’ at the time of the alleged 

violation.” Id. at 329 (footnote omitted). 

And “[t]he ‘clearly established’ prong is difficult to satisfy.” Cunningham, 983 

F.3d at 191; see also Cope v. Cogdill, 3 F.4th 198, 204 (5th Cir. 2021) (“We are bound 

by the restrictive analysis of ‘clearly established’ set forth in numerous [United 

States] Supreme Court precedents.”). 

The plaintiff “must show that the law was ‘sufficiently clear’ at that time ‘that 

every reasonable official would have understood that what he [was] doing violate[d] 

that right.’” Batyukova, 994 F.3d at 726 (quoting Mullenix, 577 U.S. at 11). And 

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“[t]here are two ways to demonstrate clearly established law” and meet this 

additional burden to make this second showing. Id. 

The first approach “requires the plaintiff to ‘identify a case’ – usually, a ‘body 

of relevant case law’ – in which ‘an officer acting under similar circumstances ... was 

held to have violated the [Constitution],’” Joseph, 981 F.3d at 330 (footnote omitted); 

accord Wigginton v. Jones, 964 F.3d 329, 335 (5th Cir. 2020) (A clearly established 

right must be supported by “controlling authority – or a ‘robust consensus of [cases 

of] persuasive authority’ – that defines the contours of the right in question with a 

high degree of particularity.” (quoting Morgan v. Swanson, 659 F.3d 359, 371-72 (5th 

Cir. 2011))); see also Lincoln v. Turner, 874 F.3d 833, 850 (5th Cir. 2017) (“While we 

may look to other circuits to find clearly established law, we must consider ‘the overall 

weight’ of such authority. A ‘trend’ alone is just that. As of December 2013, only two 

circuits had weighed in on the ‘contours of the right.’ These cases alone do not provide 

sufficient authority to find that the law was clearly established.” (footnote omitted)). 

“It is the plaintiff’s burden to find a case in [his] favor that does not define the 

law at a high level of generality.” Bustillos v. El Paso Cnty. Hosp. Dist., 891 F.3d 214, 

222 (5th Cir. 2018) (quoting Vann v. City of Southaven, 884 F.3d 307, 310 (5th Cir. 

2018) (internal quotation marks omitted)). Thus, the “clearly established law” “must 

be ‘particularized’ to the facts of the case.” Roque v. Harvel, 993 F.3d 325, 335 (5th 

Cir. 2021) (cleaned up; quoting White, 137 S. Ct. at 552 (quoting, in turn, al–Kidd, 

563 U.S. at 742)). And a clearly established right must be defined “with specificity.” 

Cunningham, 983 F.3d at 191 (quoting City of Escondido v. Emmons, 139 S. Ct. 500, 

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503 (2019) (per curiam)). 

“This rule is a ‘demanding standard.’” Id. (quoting Wesby, 138 S. Ct. at 589). 

And “[a]bstract or general statements of legal principle untethered to analogous or 

near-analogous facts are not sufficient to establish a right ‘clearly’ in a given context; 

rather, the inquiry must focus on whether a right is clearly established as to the 

specific facts of the case.” Nerio, 974 F.3d at 575 (quoting Vincent v. City of Sulphur, 

805 F.3d 543, 547 (5th Cir. 2015) (internal quotation marks omitted)). 

“While there need not be ‘a case directly on point,’ the unlawfulness of the 

challenged conduct must be ‘beyond debate.’” Joseph, 981 F.3d at 330 (footnotes 

omitted); accord Tucker, 998 F.3d at 173-74 (“For conduct to be objectively 

unreasonable in light of clearly established law, there need not be a case directly on 

point, but ‘existing precedent must have placed the statutory or constitutional 

question beyond debate.’” (quoting White, 137 S. Ct. at 551 (internal quotation marks 

omitted); citing Mullenix, 577 U.S. at 14)). 

“The central concept is that of ‘fair warning’: The law can be clearly established 

‘despite notable factual distinctions between the precedents relied on and the cases 

then before the Court, so long as the prior decisions gave reasonable warning that the 

conduct then at issue violated constitutional rights.” Trammell v. Fruge, 868 F.3d 

332, 339 (5th Cir. 2017) (quoting Ramirez v. Martinez, 716 F.3d 369, 379 (5th Cir. 

2013) (quoting, in turn, Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en 

banc))). 

“In other words, ‘there must be adequate authority at a sufficiently high level 

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of specificity to put a reasonable official on notice that his conduct is definitively 

unlawful.’” Cunningham, 983 F.3d at 191 (quoting Vincent, 805 F.3d at 547). 

Under the second approach to demonstrating clearly established law, a 

plaintiff asks the Court to look to “the ‘rare’ possibility that, in an ‘obvious case,’ 

analogous case law ‘is not needed’ because ‘the unlawfulness of the [challenged] 

conduct is sufficiently clear even though existing precedent does not address similar 

circumstances.’” Joseph, 981 F.3d at 330 (quoting Wesby, 138 S. Ct. at 590); accord 

Batyukova, 994 F.3d at 726. 

“[I]n an obvious case, general standards can [therefore] ‘clearly establish’ the 

answer, even without a body of relevant case law.” Roque, 993 F.3d at 335 (cleaned 

up; quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). So, under this alternative 

approach, qualified immunity should “not immunize those officials who commit novel, 

but patently ‘obvious,’ violations of the Constitution.” Tyson v. Sabine, 42 F.4th 508, 

520 (5th Cir. 2022) (quoting Hope v. Pelzer, 536 U.S. 730, 745 (2002)). 

But “[t]he standard for obviousness is sky high.” Joseph, 981 F.3d at 338; see, 

e.g., Tyson, 42 F.3d at 520 (“It is obvious that the right to bodily integrity forbids a 

law enforcement officer from sexually abusing a person by coercing them to perform 

nonconsensual physical sex acts for his enjoyment”); Harris v. Clay Cnty., Miss., 47 

F.4th 271, 279 (5th Cir. 2022) (“Detaining Harris for more than six years after he 

should have been released under Supreme Court precedent and a state court order is 

a violation of clearly established law. Qualified immunity thus does not protect 

Huffman and Scott.”). 

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In sum, “plaintiffs are only excused of their obligation to identify an analogous 

case in ‘extreme circumstances’ where the constitutional violation is ‘obvious.’” Cope, 

3 F.4th at 206 (quoting Taylor v. Riojas, 141 S. Ct. 52, 53-54 (2020) (per curiam)); see 

also Tyson, 42 F.3d at 520 (“We have little trouble finding that the constitutional 

offense was obvious because the physical sexual abuse alleged here is a ‘particularly 

egregious’ and ‘extreme circumstance[ ]’ of assault by a state official.” (quoting Riojas, 

141 S. Ct. at 53-54)). 

Analysis 

Again, because Ellis fails to provide verified pleadings or any other competent 

summary judgment evidence, the following analysis solely considers all three officers’ 

body cameras and their respective affidavits. 

A. The facts from the record reflect that the Officers had probable 

cause – and therefore reasonable suspicion -- to search and seize 

Ellis’s person. 

“The Fourth Amendment guarantees the right to be free from unreasonable 

searches and seizures.” Peterson v. City of Fort Worth, 588 F.3d 838, 844 (5th Cir. 

2009). “A seizure must be ‘justified at its inception.’” United States v. McKinney, 980 

F.3d 485, 490 (5th Cir. 2020) (quoting Hiibel v. Sixth Jud. Dist. Ct., 542 U.S. 177, 185 

(2004)). Indeed, the Constitution “contemplates searches and seizures based ‘upon 

probable cause,’” United States v. Bass, 996 F.3d 729, 737 (5th Cir. 2021) (quoting 

U.S. CONST. amend. IV), such that “[w]arrantless searches and seizures are 

presumptively unreasonable, subject to certain exceptions,” McKinney, 980 F.3d at 

490 (citing United States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014)). 

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An exception applicable here is “that ‘officers may briefly detain individuals on 

the street, even though there is no probable cause to arrest them, if they have a 

reasonable suspicion that criminal activity is afoot.’” Id. (quoting United States v. 

Michelletti, 13 F.3d 838, 840 (5th Cir. 1994) (en banc) (discussing Terry v. Ohio, 392 

U.S. 1 (1968))). Additionally, reasonable suspicion allows for a protective search 

where “the officer may conduct a pat down search ‘to determine whether the person 

is ... carrying a weapon.’” Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (quoting 

Terry, 392 U.S. at 24)). And, “‘[a]lthough a mere “hunch” does not create reasonable 

suspicion, the level of suspicion the standard requires is considerably less than proof 

of wrongdoing by a preponderance of the evidence, and obviously less than is 

necessary for probable cause.’” Kansas v. Glover, 140 S. Ct. 1183, 1187 (2020) (quoting 

Prado Navarette v. California, 572 U.S. 393, 397 (2014); citation omitted). 

To justify reasonable suspicion for a detention, an officer, rather than relying 

on hunches, “must be able to point to specific and articulable facts which, taken 

together with rational inferences from those facts, reasonably warrant that 

intrusion.” Terry, 392 U.S. at 21. And a court “look[s] at the facts known to the officers 

at the time,” United States v. Valdes, 403 F. App’x 885, 889 (5th Cir. 2010) (per 

curiam) (footnote omitted), and “at ‘the totality of the circumstances’ in determining 

whether an officer had a particularized and objective basis for suspecting criminal 

activity,” United States v. Reyes, 963 F.3d 482, 488 (5th Cir. 2020) (quoting Glover, 

140 S. Ct. at 1191). This “analysis ‘is necessarily fact-specific, and factors which by 

themselves may appear innocent, may in the aggregate rise to the level of reasonable 

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suspicion.’” Id. (quoting United States v. Ibarra-Sanchez, 199 F.3d 753, 759 (5th Cir. 

1999)). 

Ellis cannot establish a constitutional violation of the Fourth Amendment 

based on the search and seizure of his person. Here, the Officers had more than 

reasonable suspicion to search and seize Ellis – they had probable cause. The Officers 

smelled marijuana coming from Ellis’s open vehicle windows, and it is established 

law that the smell of marijuana coming from a vehicle is enough to provide probable 

cause. See, e.g., Bazan v. Whitfield, 754 Fed. App’x 280, 281 (5th Cir. 2019) (per 

curiam) (“[T]he uncontroverted summary judgment evidence showed that [the officer] 

smelled marijuana emanating from the vehicle, which provided him with sufficient 

probable cause to conduct a warrantless search.” (citing United States v. Reed, 882 

F.2d 147, 149 (5th Cir. 1989) (holding that the smell of marijuana in a vehicle was – 

in itself – enough to justify the search of “the entire vehicle”); United States v. 

Villareal, 565 F.2d 932, 978 (5th Cir. 1978) (same))). 

While the Officers’ body cameras show that Ellis disagreed, asserting that the 

vehicle did not smell like marijuana, see Dkt. No. 24 (Garza bodycam footage at 7:50), 

this does not create a genuine dispute of material fact because that claim is “so utterly 

discredited by the record that no reasonable jury could have believed him,” Scott, 550 

U.S. at 378. 

First, the fact that all three officers could smell marijuana was not some afterthe-fact justification. Before and during Ellis’s seizure (and prior to finding marijuana 

in his vehicle), both Officers Garza and Weinschreider told Ellis that his vehicle 

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smelled of marijuana. See Dkt. No. 21 at 9-10, 31. Moreover, while Ellis’s vehicle was 

being searched, he admitted to Officer Weinschreider that marijuana was inside of 

the vehicle. See id. at 31. 

In sum, because Ellis has not shown that the Officers violated his Fourth 

Amendment rights based on the search and seizure of his person, Ellis cannot 

establish that the Officers violated a clearly established right that any reasonable 

police officer would understand was a violation of federal law. Accordingly, the 

Officers are entitled to qualified immunity on this ground, and Ellis’s Fourth 

Amendment claim against the Officers based on his alleged unlawful search and 

seizure should be dismissed with prejudice. 

B. The facts from the record reflect that the Officers had probable 

cause to search Ellis’s vehicle. 

Although warrantless searches are per se unreasonable, the vehicle exception 

allows that “police may conduct a warrantless search of an automobile and any 

containers therein if they have probable cause to believe it contains contraband or 

evidence of crime.” United States v. Wilson, 510 F. App’x 339, 344 (5th Cir. 2013) (per 

curiam) (quoting United States v. Buchner, 7 F.3d 1149, 1154 (5th Cir. 1993)). As 

explained above, the Officers had probable cause because they smelled marijuana 

coming from Ellis’s vehicle. Therefore, the Officers’ warrantless search was covered 

by the automobile exception. See Reed, 882 F.2d at 149 (“[T]he detection of the odor 

of marihuana justified a search of the entire vehicle, including the locked 

compartment that was a likely place to conceal contraband.” (citation omitted)). 

While Ellis argues in his pleadings that Officer Garza put her nose in his 

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vehicle to smell for marijuana, that argument cannot be considered because Ellis’s 

pleadings are not under oath and therefore not competent summary judgment 

evidence. That said, based on Officer Weinschreider’s body camera, it appears that 

Officer Garza put her nose close to the vehicle, but it is not definite that her nose 

went inside of his vehicle. See Dkt. No. 24 (Weinschreider bodycam footage at 0:43). 

It is therefore most likely that Ellis would not be able to prove a violation of his Fourth 

Amendment rights based on the search of his vehicle. 

But, even if Ellis could successfully argue that the Officers’ search was 

unreasonable because Officer Garza’s nose went inside of Ellis’s vehicle, that action 

alone would not be enough to show that the Officers violated clearly established law. 

Although it may be considered a constitutional violation for an officer to place a part 

of their body inside a vehicle, Ellis has not shown that such a violation of law is clearly 

established or an obvious violation of the Constitution. 

On the contrary, courts have held, on a case-by-case basis, that officers putting 

their body into a vehicle constitutes a reasonable search. See United States v. Ryles, 

988 F.2d 13, 15 (5th Cir. 1993) (an officer placing their head inside the vehicle 

through open window, even before smelling marijuana, did not amount to an 

unreasonable search); see also United States v. Pierre, 958 F.2d 1304, 1309-10 (5th 

Cir. 1992) (an officer conducted a reasonable search where they stuck their head 

inside a window to question individuals at a border checkpoint); United States v. 

Marshall, 878 F.2d 161, 163 (5th Cir. 1988) (an officer did not conduct an 

unreasonable search where they stuck their head into a vehicle after smelling 

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marijuana emanating from the vehicle). 

In sum, Ellis has not shown that the Officers violated a clearly established 

right. Accordingly, the Officers should be granted summary judgment on qualified 

immunity as to this ground, and Ellis’s Fourth Amendment claim based on the search 

of his vehicle should be dismissed with prejudice. 

C. Ellis has not shown that the Officers violated a clearly 

established right by directing him to destroy the marijuana. 

Ellis alleges an Eighth Amendment violation based on his being directed to 

destroy the marijuana or receive a citation. “The protections of the Eighth 

Amendment against cruel and unusual punishment are limited in scope to convicted 

prisoners.” Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996). Even so, and assuming 

that Ellis may be alleging some sort of due process violation based on his being 

directed to destroy the marijuana to avoid a citation, the confiscation of contraband 

(typically examined in the context of the Eighth Amendment) does not establish a due 

process violation. See, e.g., Sullivan v. Ford, 609 F.2d 197, 198 (5th Cir. 1980) (per 

curiam); Lyon v. Farrier, 730 F.2d 525 527 (8th Cir. 1984) (per curiam); Baker v. 

Piggott, 833 F.2d 1539, 1540 (11th Cir. 1987) (per curiam). And Ellis has not 

established that the Officers violated a clearly established right that any reasonable 

police officer would understand was in violation of the Constitution. So the Officers 

should be granted summary judgment on qualified immunity as to this ground too, 

and Ellis’s purported Eighth Amendment claim should be dismissed with prejudice. 

D. The Court should deny Ellis’s motions. 

For all the reasons set out above, the Court should deny Ellis’s motion to strike 

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the Officers’ qualified immunity defense and deny his motion for summary judgment. 

In sum, the reasons set out above showing that the Officers’ good faith 

assertion of qualified immunity should be granted also show that Ellis has not 

established grounds to strike the defense. See CarrollClean LLC v. ACE Am. Ins. Co., 

No. 3:21-cv-1359-N, 2022 WL 598243, at *2 (N.D. Tex. Feb. 28, 2022) (noting that, 

under Federal Rule of Civil Procedure 12(f), a court “may strike a defense as 

insufficient if the defense is insufficient as a matter of law or if the pleading fails to 

give fair notice of the defense raised” (citation omitted)); see also Malibu Media, LLC 

v. Martin, Civ. A. No. H-18-4425, 2019 WL 3802678, at *1 (S.D. Tex. Aug. 13, 2019) 

(“A plaintiff who desires ‘early resolution of an affirmative defense may seek to strike 

it under Federal Rule of Civil Procedure 12(f).’” (quoting C&C Inv. Props., L.L.C. v. 

Trustmark Nat’l Bank, 838 F.3d 655, 660-61 (5th Cir. 2016))). 

Nor has Ellis shown that summary judgment should be granted in his favor on 

the Officers’ assertions of qualified immunity where “[o]nce a defendant properly 

raises the defense, the burden shifts to the plaintiff to demonstrate that the 

defendant is not entitled to the defense’s protection.” Batyukova, 994 F.3d at 724. 

Understood another way, in the context of parties moving for summary judgment on 

their own claims or defenses, Ellis has not carried his burden to establish beyond 

peradventure that the Officers are not entitled to summary judgment on qualified 

immunity. 

Recommendation 

The Court should deny Plaintiff Eric Ellis’s motion to strike [Dkt. No. 16] and 

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motions for summary judgment [Dkt. Nos. 19, 20] and grant Defendants Officers Rubi 

Garza-Lopez and Brian Barrier’s motion for summary judgment on qualified 

immunity [Dkt. No. 21], dismissing the claims against them – and this lawsuit – with 

prejudice. 

A copy of these findings, conclusions, and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of these findings, 

conclusions, and recommendation must file specific written objections within 14 days after 

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be 

specific, an objection must identify the specific finding or recommendation to which objection 

is made, state the basis for the objection, and specify the place in the magistrate judge’s 

findings, conclusions, and recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the briefing before the magistrate 

judge is not specific. Failure to file specific written objections will bar the aggrieved party 

from appealing the factual findings and legal conclusions of the magistrate judge that are 

accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415 1417 (5th Cir. 1996).

DATED: December 28, 2022 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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