United States Court of Appeals Fifth Circuit 

## FILED November 21, 2006 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________ No. 05-30541

____________ SHANNON KOHLER,

Pl aint iff- Appellant,

versus
PAT ENGLADE; ELMER LITCHFIELD; CHRISTOPHER JOHNSON; CITY OF BATON ROUGE; PARISH OF EAST BATON ROUGE, Defendants-Appellees.

Appeal from the United States District Court For the Middle District of Louisiana

Before GARZA, DeMOSS, and STEWART, Circuit Judges. EMILIO M. GARZA, Circuit Judge: Pl aint iff- Appellant Shannon Ko hler (“Kohler”) appeals from the district court’s grant of summary judgment in favor of Defendants-Appellees Detective Christopher Johnson (“Detective Johnson”), Baton Rouge Pol ice Chief Pat Englade (“Chief Englade”), and the Cit y of Baton Rouge (the “Cit y”) (collectively, “Defendants”) on Ko hler’s claims fo r relief under 42 U.S.C. § 1983. The issue on appeal is whether Kohler’s constitutional rights were violated by the seizure of his DNA.1 Derrick Todd Lee was eventually identified as the serial killer. -2- I This case arises out of a massive law enforcement search for a serial killer who terrorized south Loui siana beginning in 2001. Over the span of a year, three women were brutally raped and murdered in Baton Rouge, Loui siana. From DNA evidence left at the crime scenes, analysts with the Loui siana State Pol

ice Crime Lab were able to link all th ree murders to the same, then-unknown male perpetrator. 1 As part of the invest igation int o the serial killer’s identity, agents wit h the Behavioral Analysis Unit (BAU) of the Federal Bureau of Investigation (FBI) created a Criminal Investigative Analysis,

or “profile,” which identified certain behaviors and personality trai ts of the perpetrator. In addition to providing a behavioral and psychological analysis of the perpetrator, the prof ile suggested th at the perpetrator would likely be between 25 and 35 years of age, employed in a jo b th at required physical strength, and financially insecure. Based on a bloody footprint left at one of the crime scenes, the prof ile also indicated that the perpetrator wore a size 10 to 11 shoe. To coordinate the work being done by the FBI wit h the effo rts of state and lo cal authorities, the Cit y fo rm

ed the Multi-Agency Hom icide Task Force (the “Task Force”). The Task Force, hoping to generate leads on the serial killer’s identity, released the FBI prof ile to the public and established

a “t ip line,” which received over 5,000 ti ps concerning possible suspects. After analyzing the tips, Task Force invest igators contacted mo re th an 600 men, including Ko hler, in an effo rt to collect oral saliva swabs for DNA comparison. The Task Force received anonymous ti ps from two different individuals indicating th at Ko hler

was “a possible person who needed to be checked.” Detective Johnson and o ther Task Force-3-

invest igators conducted a background check and learned th at Ko hler had been convicted of burglary in 1982. They also learned that Kohler was currently unemployed, was last employed as a welder for

a f a brication com

pany headquartered on Old Perkins Road wit h a secondary shop on Choctaw Drive )) the Baton Rouge road where invest igators had discovered a cell phone taken from one of the vict ims. Further, they learned that Kohler had worked for another company located off Choctaw Drive 10 or 11 years earlier. When contacted by Task Force officer D. Hamilton (“Officer Hamilt on”) and asked to g ive vo luntarily a saliva swab for his DNA, Kohler initially agreed but changed his mind when Officer Hamilt on arrived at his home. According to Kohler, Officer Hamilton info rm ed him th at the Task Force had receive d two anonymo us ti ps naming him as a person who should be checked but provided no reason as to why he was a suspect. Aware of media reports that the perpetrator had left a size 10 or 11 fo ot pri nt at one of th e murder scenes, Kohler told Officer Hamilt on th at he had size 13 feet and was wearing size 14 work boots. Ko hler also volunteered that he had received a full pardon fo r his burglary conviction in 1996 and that investigators could check his work records fo r his whereabouts on the dates of the th ree murders. When Kohler continued to refuse Officer Hamilton’s requests for a DNA swab, Officer Hamilt on stated th at if o fficers had to get a court order fo r his DNA it would go in the public records and Ko hler “could get [his] name in the papers.” Despite perceiving this st atement to b e a threat, Kohler declined to provide a DNA swab. Shortl

y thereafter, Detective Johnson contacted Ko hler and stated th at he was taking over fo r Officer Hamilt on. Detective Johnson again requested that Kohler voluntarily provide a DNA sample. When Ko hler refused, Detective Johnson prepared an “Affidavit f or Sei zure W arrant,” which he submit ted to Judge Richard Anderson of the Loui siana Nineteenth Judicial District Cou rt f or hi s2 The East Baton Rouge Parish filed a motion to dismiss the claims against it pursuant to Federal Rule of Civil

Procedure 12(b)(6), wh ich Kohler did not oppose, and Kohler subsequently informed the district court that he did not wish to proceed against Sheriff Litchfield. -4- signature. Upon being served with the signed warrant by Detective Johnson, Kohler submitted to an oral saliva swab. Detective Johnson then filed the affidavit, the warrant, and the warrant return in the public records of the Clerk of Court fo r the Nineteenth Judicial District Court. Wit hin a day, Kohler

was identified by the media as a suspect in the ser i al killer invest igation who was refusing to cooperate with pol

ice. Not until two months later did Kohler learn from a local newspaper th at he had been cleared as a suspect because his DNA was not a match to that of the serial killer. Ko hle r brought suit against Detective Johnson, Chief Englade, the City, the Parish of East Baton Rouge, and East Baton Rouge Pari sh Sheriff El mer Lit chfield, 2 asserting th at the taking of his DNA vio lat ed his rights u nder th e Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 5 of the Loui siana Constitution. In his Complaint, Kohler alleged th at th e affidavit submitted by Detective Johnson to procure the seizure warrant did not provide probab le cause to believe that Kohler was the serial killer and concealed from Judge Anderso n exculpatory facts, namely, th at Ko hler was pard oned f or hi s burglary conviction, that he had not worked in the area where the vict im’s cell phone was fo und fo r over a decade, and th at he could not have made the blo ody fo otprint left at the crime scene. Accordingly, Kohler sought damages and the expungement of his DNA profile from any place where it had been stored. Detective Johnson, Chief Englade, and the Cit y mo ved fo r summary judgment on the grounds th at: (1) Detective Johnson did not vio lat e Ko hler’s constitutional rights because he acted pursuant to a seizure warrant and the info rmation he om it ted from the warrant affidavit was not mat erial to a3 Significantly , Detective John son did not move for summary judgment on qualified immunity grounds.

Accordingly , the defense of qualified immunity is not an issue on appeal. -5- finding o f probable cause; 3 (2) Chief Englade could not be held liable under § 1983 because he was not personally invo lved in obtaining the seizure warrant and there was no causal connection between his acts and any constitutional violation; and (3) the City could not be held liable under § 1983 because there was no evidence linking the alleged constitutional vio lat io n to any pol icy, practice, or custom of the Cit y. Ko hler responded that the warrant affidavit did not set forth probable cause to believe he was the serial killer and was so deficient th at no reasonable of ficer would have submit ted it to a magistrate; th at the warrant affidavit om it ted key facts; and that Chief Englade could be held liable fo r the constitutional violation because he failed to supervise Detective Johnson. The district court found that the facts within Detective Johnson’s knowledge, including the FBI prof ile, were sufficient to support a finding of probable cause. The court further found that even if the warrant affidavit had included the omitted facts, there was still probable cause sufficient to obtain a warrant fo r Ko hler’s DNA. Wit h respect to Kohler’s claims against Chief Englade and the Cit y, the court fo und th at there was no evidence th at the alleged constitutional vio lat io n was caused by any co nduct on the part of Chief Englade or any policy or custom of the Cit y. Accordingly, the court granted Defendants ’ mo ti on f or sum mary judgment and dismissed all of Kohler’s claims. Ko hler then filed a mo tion fo r a new tri al or an amendment of the judgment pursuant to Federal Rule of Civil Procedure 59, which the district court denied. II We review the district court’s grant of summary judgment de novo , applying the same legal standard as the district court. R ivera v. Houston Indep. Sch. Dist. , 349 F. 3d 244, 246 (5th Ci r.4 It is undisputed that the collection of a saliva sample for DNA analy sis is a search implicating the Fourth

Amendment. S ee Groceman v U.S. Dep’t of Justice , 354 F.3d 411, 413 (5th Cir. 2004) (“The extraction of blood from a prisoner to collect a DNA sample implicates Fourth Amendment rights.”) (citing Skinner v. Ry. Labor Executives’ Ass’n , 489 U.S. 602, 616-17, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (holding that blood tests, br eathalyzer tests, and the taking of urine samples constitute searches under the Fourth Amendment)); see also Padgett v. Donald , 401 F.3d 1273, 1277 (11th Cir. 2005) (“The Commissioner does not dispute that the statutorily required extraction of saliva for DNA profiling constitutes a ‘search’ within the meaning of the [Fourth] Amendment.”); Schlicher v. (NFN) Peters, I & I, 103 F.3d 940, 942-43 (10th Cir. 1996) (“It is agreed that the collection, analy sis and storage of blood and saliva . . . is a search and seizure within the meaning of the Fourth Amendment.”). -6- 2003). Summary judgment is proper when the evidence demonstrates that “there is no genuine issue

as to any mat erial fact and th at the mo ving party is entitled to judgment as a mat ter of law.” FE D . R. C IV . P. 56(c). A To prevail on a § 1983 claim, a plaint iff must establish the deprivation of rights secured by the Constitution or laws of the Unit ed States by a person acting under the color of state law. S ee Priester v. Low

ndes County , 354 F.3d 414, 420 (5th Cir. 2004). 1 Ko hler fir st asserts th at Detective Johnson vio lat ed his rights under the Fourth and Fourteenth Amendment s by submit ting to Judge Anderson an affidavit fo r a seizure warrant lacking in probable

cause. 4 A police officer seeking the issuance of a search warrant must present an affidavit containing facts sufficient to “provide the magi strate with a substantial basis for determining the existence of probable cause.” I

llinois v. Gates , 462 U.S. 213, 239, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Probable cause exists when there are reasonably trustworthy facts which, given the total it y of the circumstances, are sufficient to lead a prudent person to believe th at the it ems sought constitute fruits, inst rum entalities, or evidence of a crime. I d. at 238-39. The officer’s supporting affidavit must make it apparent, therefore, th at there is som e nexus between the it ems to be seized and the criminal activit y-7-

being investigated. S ee Warden v. Hayden , 387 U.S. 294, 302, 307, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). Alt hough we accord great deference to a magistrate’s determination of probable cause,

w e will no t “ defer to a warrant based on an affidavit that does not ‘provide the magistrate with a substantial basis fo r determ ining the existence of probable cause.’” U nited States v. Leon , 468 U.S. 897, 914-15, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (quoting Gates , 462 U.S. at 239). Whether the facts set forth in Detective Johnson’s warrant affidavit provided probable cause fo r the seizure warrant is a question of law that we review de novo . S ee United States v. Runyan , 290 F.3d 223, 236-37 (5th Cir. 2002); Blackwell v. Barton , 34 F.3d 298, 305 (5th Cir. 1995). Judge Anderson i ssued the seizure warrant based solely on Detective Johnson’s affidavit, which reads in its entirety as follows:

Affiant says th at he has probable cause to believe the above-listed thing to be seized [Kohler’s DNA] is relevant evidence based upon the following facts: On 09/23/01, Ms . Gi na Green was murdered in her home at 2151 Stanford Ave. On 05/31/02, Ms. Charlotte Pace was murdered in her ho me at 1211 Sharlo Ave. On 07/12/02, Mrs. Pamela Kinamore was abducted fro m her home at 8338 Briarwood Pl ace. Her body was later found in a wooded area near the Whiskey Bay exit from Interstate 10. All t hree deaths were determined to be homicides with some sexual assault invo lved as well. Items taken from Gina Green’s residence by the perpetrator were fo und behind the Ready-Portion Meat Com pany in the 1500 block of Choctaw Dr. The investigations into the three murders yielded evidence left at the crime scenes from which LSP Crime Lab technicians were able to obtain the suspect’s DNA prof

iles. The LSP Crime Lab technicians further determined that the DNA prof iles from the th

ree different crime scenes belonged to the same unknown male suspect. Following this finding, a mult i- agency task fo rce was fo rm ed and a “t ip-line” was set up to handle the mult it ude of callers wit h info rmation. To thi s date, m ore th an 5,000 “t ips” have been received by the task force investigators suggesting invest igators “check out” various whit e males fo r various reasons. Many of these tips are anonymous out of the callers’ con c erns about repri sals. More than 600 white males have been contacted f or the purpose of obtaining oral saliva swabs for DNA com parison. Out of th at number, less than 15 have refused the voluntary submittal,-8-

the overwhelming majo ri ty being more than eager to be formally eliminated from suspicion. Two “t ips” were received from different persons regarding the subject Ko hler as a possible person who needed to be checked. Background investigation of Kohler revealed that he is a convicted felon )) from a burglary charge in 1982. He was last employed as a welder fo r a fabrication com pany headquartered on Old Perkins Rd. and wit h another shop on Choctaw Dr., and he was occasionally sent out of town on contracted work. Ko hler was contacted on two occasions in October by an invest igator wit h t he task f orce. He told this investigator that he was currently unemployed. When asked to consent to a volunt ary saliva swab, Kohler requested time to think it over. Two weeks later, when contacted again by the investigator, he flat ly refused to voluntarily provide a saliva swab. The investigator contacted Kohler a fe w weeks later by phone and asked again if Kohler would provide a swab. He refused. Ko hler argues th at the affidavit did not provide probable cause to believe th at his DNA was relevant evidence of the serial killings but rather was an affidavit of only “possible cause.” In determ ining whether Detective Johnson’s affidavit provided probable cause fo r a warrant to seize Ko hler’s DNA, we begin wit h the fact th at of ficers first learned of Kohler through two anonymous ti

ps. An anonymous tip, standing alone, is rarely sufficient to provide probable cause for

a warrant. S ee Gates , 462 U.S. at 227. The anonymous tips in this case are no exception. There is

no indication in the warrant affidavit as to the identi ty of the ti

psters, their credibility, or, most impo rtantl

y, their reason s fo r believing that Kohler “was a possible person who needed to be checked” in the serial killer invest igation. I d. ; see also Florida v. J.L. , 529 U.S. 266, 270-72, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000) (find ing an anonymous tip insufficient to support an invest igatory stop where the caller neit her gave the basis fo r his belief t hat the man he identified would be carrying a gun, nor provided any predictive info rmation th rough which of

ficers could test the caller’s knowledge or credibility). Nor does the af

fidavit reveal that the tips were corroborated in some way that supplied-9-

probable cause fo r Ko hler’s DNA. C ompare J.L. , 529 U.S. at 272 (explaining th at the fact that of ficers lo cated a yo ung black male wearing a plaid shirt at a particular bus stop was insufficient to corroborate an anonymous ti p th at “a yo ung black male standing at a particular bus stop and wearing a plaid shirt wa s carrying a gun ” because it did not show that the tip was reliable in its assertion of criminal activit y) (emphasis added), wi th Gates , 462 U.S. at 24 2-46 (finding that probable cause existed where the anonymous ti p contained specific, predictive info rmation, which of ficers were able to corroborate th

rough invest igation and which provid ed a f air probability that the tipster’s info rmation was reliable). Alt hough the affidavit contains additional information that officers learned about Ko hler th

rough invest igation)) th at Ko hler had a twenty -year old burglary conviction, was currently unemployed, had previously worked fo r a com pany th at had a secondary shop on the road where an it em belo ngin g to on e of the victims was found, and was one of only fifteen people who refused voluntarily to provide their DNA to in vestigators )) these facts did not establish a fair probability th at Ko hler was the serial killer. Neither the twenty-year old burglary conviction nor Ko hler’s employment status would lead a prudent person to believe th at Ko hler was responsible fo r th ree rape-murders. “While the use of prior arrests and convictions can be helpful in establishing probable cause, especially where the previo us arrest or conviction invo lves a crime of the same general nature as th e one the warrant is seeking to uncover,” G reenstreet v. County of San Bernardino , 41 F.3d 1306, 1309 (9th Cir. 1994), burglary is not a crime of the same general nature

as rape or murde r, and Detective Johnson’s affidavit provides no explanation as to how Kohler’s twenty -year old bu rgl ary conviction gives rise to a fair probability that he was the serial killer. Likewise, the affidavit contains no info rmation explaining the relevance of Ko hler’s employment status to the rape-m

urders. Finally, the fact that Kohler had worked fo r a com pany wit h a shop on5 Indeed, his counsel conceded as much during oral argument.

6 See also Mills v. City of Barbourville , 389 F.3d 568, 576 (6th Cir. 2004) (“Although the officers claim that they took Cox in a car and he identified 801 North Allison Avenue as the residence from wh ere he purchased the drugs, there is no indication that this knowledge was passed on to the magistrate. The officers’ independent knowledge, without some explanation in the affidavit, is insufficient to allow the magistrate to find probable cause that drugs would be found at 801 North Allison Avenue.”); Owens ex rel. Owens v. Lott , 372 F.3d 267, 277 (4th Cir. 2004) (“Our review of wh ether the search warrant was supported by probable cause)) in other wor ds, a review of the facts upon wh ich the issuing magistrate relied )) may not go beyon d the information actually presented to the magistrate during the warrant application process.”). -10- the road where of

ficers discovered a cell phone belo nging to one of the vict ims does not link Ko hler to the serial killings, given th at the affidavit provides no indication th at Ko hler ever worked at the Choctaw Drive shop or th at the shop was lo cated anywhere near the 1500 blo ck of Choctaw Drive, where the vict im’s cell phone was fo und. Even when considered in their totality, the circumstances set forth in the affidavit failed to provide a nexus between Kohler’s DNA and the serial killings. Detective Johnson does not d ispute that the warrant af fidavit , by it self, was insufficient to establish probable cause. 5 Instead, he argues that the information set forth in the affidavit, when considered in conjunction wit h the characteristics identified in the FBI prof ile, provided probable

cause fo r the seizure warrant. Because the FBI profile was not provided to Judge Anderson, however, this arg ument is without m erit. What Detective Johnson knew but failed to tell Judge Anderson is irrelevant to the question of whether Detective Johnson’s affidavit provided Judge Anderson with a substantial basis for determining the existence of probable cause. See Whiteley v. Warden , 401 U.S. 560, 564-65, n.8, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971) (“ [A]n otherwise ins ufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate.”). 6 Even if the FBI prof

ile could be considered, the fact th at Ko hler may have possessed two of the numerous trai

ts set fo rth in the FBI prof ile )) employment in a jo b th at required physical strength7 C f. Cervantes v. Jones , 188 F.3d 805, 811-14 (7th Cir. 1999) (probable cause for prosecution existed wh ere the FBI profile “depicted the probable assailant in terms that [we]re strikingly descriptive of” the murder suspect; the victim had previously complained to friends that the suspect had beaten her; and the suspect had a key to the victim’s apartment, fought with her a f ew days before the murder, had intended to visit her the night of the murder, had an uncorroborated alibi for the time of the murder, and failed a polygraph test), overruled on other grounds , New some v. McCabe , 256 F.3d 747 (7th Cir. 2001); Simmons v. Poe , 47 F.3d 1370, 1373-75, 1378-79 (4th Cir. 1995) (probable cause existed for rape suspect’s DNA wh ere, in addition to matching many of the traits set forth in the behavioral profile, the suspect had cleaned the victim’s windows weeks before the crime and, hence, had opportunity to unlock the window through wh ich the perpetrator entered the victim’s home; fit the phy sical description of the attacker given by the victim and had a New Jersey accent that fit the victim’s description of the attacker as having a “mild,” “Northern” voice; and knew the victim resided alone and was familiar with the layout of her home); Simkunas v. Tardi , 930 F.2d 1287, 191-92 (7th Cir. 1991) (probable cause for warrantless arrest existed wh ere the suspect, in addition to fitting the FBI profile of the offender in that he knew the victim and appeared at her grave site on the one-year anniversary of her death, was identified in a line-up as a person wh o closely resembled the man seen looking for the victim on the day of the murder; owned and wore a jacket similar to the one an eyewitness described the offender as having wor n; had no alibi for his wh ereabouts at the time of the murder; was emotionally distraught the day after the murder; and had access to wires similar to those used in the murder). -11- and financial insecurity due to unemployment )) adds lit tle, if anyt hing, to the probable cause analysis in this case. These two trai ts are so generalized in nature that hundreds, if not thousands, of men in the Baton Rouge area could have possessed them, and they are, therefore, insufficient to warrant the belief th at Ko hler was the serial killer. Cf. United States v. Jones , 619 F.2d 494, 497-98 (5th Cir. 1980) (finding no probable cause fo r the arrest of a defendant who was stopped based solely on the fact th at he mat ched a physical description of a man who was suspected of having robbed a gas station where the description was very general and could have fit many people). Indeed, the FBI prof ile expressly cautions th at “[i]t is impo rtant to note th at no one or two traits or characteri stics should be considered in iso lat io n or given mo re weight th an others” because “[a]ny one of the trai ts,

or several, can be seen in people who have never com mit ted a crime.” Moreover, the cases in which prof ile factors have been used to support a finding of probable cause have involved a greater correl ation between the prof ile and the suspect and far mo re specific evidence linking the suspect to the crime being invest igated. 7 Accordingly, we conclude that the district court erred in finding th at8 Because Detective Johnson did not assert qualified immunity in his motion for summary judgment, we do

not consider wh ether a reasonably well-trained officer in Detective Johnson’s position would have known that the affidavit he submitted to procure the seizure warrant failed to establish probable cause. S ee Malley v. Briggs , 475 U.S. 335, 344-45, 106 S. Ct. 1092, 8 9 L. Ed. 2d 271 (1986) (holding that an officer who submits an arrest warrant application lacking in probable cause is not entitled to qualified immunity if “the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable”).

9 Detective Johnson contends that these facts were not material to the probable cause determination because they did not, in his mind, exclude Kohler as a suspect in the serial killings. The issue is not, however, whether the omitted facts were material to Detective Johnson’s determination of probable cause; rather, the issue is wh ether the omitted facts were material to Judge Anderson’s determination of probable cause. S ee Wilson v. Russo , 212 F.3d 781, 787 (3d Cir. 2000) (“[A] police officer cannot make unilateral decisions about the materiality of information, or , after satisfying him or herself that probable cause exists, merely inform the magistrate or judge of inculpatory evidence.”). -12- the seizure warrant was supported by probable cause. 8 2 Ko hler also contends th at Detective Johnson vio lat ed his Fourth Amendment rights by

om it ting exculpatory info rmation from the warrant affidavit , thereby precluding review by a neutral magistrate of all the facts mat erial to the existence of probable cause. Pursuant to F ranks v. Delaw are , 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), a Fourth Am endment violation may be established where an of ficer int entionally, or wit h reckless disregard for the truth, includes

a false statem

ent in a warrant application. Likewise, the intentional or reckless omission of material facts from a warrant application may amount to a Fourth Amendment vio lat io n. See Hale v. Fish , 899 F.2d 390, 400 n.3 (5th Cir. 1990). Ko hler com

plains th at Detective Johnson om it ted from the warrant affidavit th ree exculpatory facts: that Kohler received a pardon for his burglary conviction, th at he had not worked in the area where the victim’s cell phone was found for over a decade, and that he could not have made t he blo ody , size 10-11 fo otprint left at the crime scene because he had s ize 13 feet. 9 To determ ine whether facts omitted from a warrant affidavit are material to the determination of probable cause, courts ordinarily insert the om it ted facts int o the affidavit and ask whether the reconstructed affidavit-13-

would still support a finding of probable cause. S ee, e.g. , United States v. Martin , 615 F.2d 318, 328 (5th Cir. 1980). This materiality analysis presumes that the warrant affidavit, on its face, supports

a finding of probable cause. In cases such as this one, however, where the warrant affidavit is already lacking in probable cause, any reconstructed affidavit th at includes the om it ted exculpatory info rmation would necessarily lack probable cause as well, regardless of the mat erialit y of the om it ted info rmation. This result appears to dictat e one of two com peting conclusions: either that a prerequisite for a Franks vio lat io n is a warrant affidavit th at appears to establish probable cause on it s face; or th at the usual test fo r mat erialit y is simply not helpful to determ ining whether an of

ficer’s

om issio ns amo unted to a constitutional vio lat io n when the warrant affidavit is facially insufficient , and the materiality test should therefore be modified to encompass such claims. We recognize th at the fo rm er conclusion is, in essence, a conclusion th at a plai nt iff cannot hold an of ficer liable under Frank s fo r int entionally om it ting impo rtant exculpatory info rmation from

a warrant affidavit when the of ficer has also com

mit ted a Malley vio lat io n by prese nt ing a facially deficient warrant affidavit to the issuing judge. We further recognize that the latter conclusion is not necessarily inco nsist ent wit h Franks , which protects against om issio ns th at are designed to mislead,

or th at are made in reckless disregard of whether they would mislead, the issuing judge in making the probable cause determ

inat io n. Nonetheless, it is clear that Franks it self was confined to providing

a mechanism fo r challenging a search warrant th at was not supported by probable cause but th at, due to the inclusio n of deliberately falsified allegations in the warrant affidavit , appeared to be supported by probable cause. The principles of F ranks have never been applied to facially invalid warrants, and

we decline to so extend Franks today

. Because we have found that there was insufficient evidence to establish probable cause on the face of Detective Johnson’s warrant affidavit , we co ncl ude that10 To the extent Kohler also premises his § 1983 claims against Chief Englade and the City on Detective

Johnson’s filing of the search warrant documents in the public records, the claims are similarly waived. -14- Franks is inapplicable. Accordingly, the district court did not err in granting summary judgment to Detective Johnson on Kohler’s Franks claim. 3 Finally, Ko hler asserts that Detective Johnson vio lat ed his constitutional right to privacy by filing the warrant affidavit , the seizure warrant, and the return in the public records. Because Kohler asserted this theory fo r the fir st time in a Federal Rule of Civil Procedure 59(e) mo tion and did so only vaguely and without citation to any authority, he did not properly raise the argument in t he district court. S ee Trust Co. Bank v. U.S. Gypsum Co. , 950 F.2d 1144, 1152, n. 16 (5th Cir. 1992) (finding claim raised for the first time in a Rule 59(e) mo tion waived on appeal); see also Keelan v. Majesco Softw

are, Inc. , 407 F.3d 332, 340 (5th Cir. 2005) (“An argument must be raised ‘to such

a degree th at the district court has an opportunity to rule on it .’”). Nor did Kohler adequately brief the issue in this Court, given th at, inter alia , he failed to cit e any legal authority for the proposition th at one has a constitutional right to have an executed search warrant filed under seal. S ee L & A Contracting Co. v. S. Concrete Servs., Inc. , 17 F.3d 106, 113 (5th Cir. 1994) (finding an issue not adequately briefed where no authorities were cited in a one page argument); F E D . R. APP . P. 28(a)(9)(A) (stating th at the appellant’s brief must contain his “contentions and the reasons fo r them, wit h cit ations to the authorities and parts of the record on which the appellant relies”). Accordingly, we deem the argument waived. 10

B-15-

Ko hler’s claims against Chief Englade and the Cit y are based on Detective Johnson’s conduct in o bt aining t he seizure warrant. The district court found th at summary judgment was appropriate

on these claims because, inter alia , Ko hler produced no evidence th at any act on the part of Chief Englade or any pol

icy or custom on the part of the Cit y caused the vio lat io n of Ko hler’s constitutional rights. Section 1983 does not impo se individual liabilit y on a pol ice chief under theories of vicarious

or respondeat superior liabilit y. S ee Rios v. City of Del Rio , 444 F.3d 417, 425 (5th Ci r. 2006); Lozano v. Smith , 718 F.2d 756, 768-69 (5th Cir. 1983). Rather, a plaintiff must show either that the pol ice chief was personally invo lved in the constitutional vio lat io n or th at there is a sufficient causal connection between th e pol ice chief’s conduct and the constitutional violation. I d. The uncontroverted summary judgment evidence in t his case is that Chief Englade was not personally invo lved in the invest igation of Ko hler or the procurem ent or execution of the seiz ure warrant for Ko hler’s DNA. Alt hough Kohler argued that Chief Englade failed to supervise Detective Englade, he provided no evidence in support of such a claim. S ee Thompson v. Upshur County , 245 F.3d 447, 459 (5th Cir. 2001) (explaining that supervisory liability under § 1983 requires proof that the supervisor failed to supervise the of ficer invo lved; th at there i s a causal connection between the alleged failure to supervise and the co n stitutional vio lat io n; and th at the failure to supervise constituted deliberate indifference to the plaint iff’s constitutional rights). Accordingly, the district court did not err in granting summary judgment to Chief Englade. In order to hold a municipalit y liable under § 1983 fo r the misco nduct of one of it s employees,

a plaint iff must allege th at the municipalit y caused the constitutional vio lat io n th rough it s pol

icies or customs. S ee Monell v. New York City Dep’t of Soc. Servs ., 436 U.S. 658, 694, 98 S. Ct. 2018, 56-16-

L. Ed. 2d 611 (1978); Spiller v. City of Texas City, Police Dep’t , 130 F.3d 162, 167 (5th Cir. 1997). Upon reviewing the summary judgment record, we agree wit h the district court th at Ko hler has failed to identify any pol

icy, practice, or custom on the part of the Cit y th at co uld be causally r elated to Detective J ohnson’s deficient warrant application. We therefore conclude that the district court’s grant of summary judgment in favor of the City was proper. III For the fo regoing reasons, we vacate the district court’s grant o f summary judgment on Ko hler’s claim th at Detective Johnson subm it ted to Judge Anderson a warrant affidavit lacking in probable c ause; af

fir m t he grant of summary judgment on Kohler’s claim that Detective Johnson submit ted to Judge Anderson a warrant affidavit containing mat erial om issio ns and on Ko hler’s claims against Chief Englade and the Cit y; and remand fo r further proceedings not inco nsist ent wit h this opinio n. VACATED IN PART, AFFIRMED IN PART, AND REMANDED IN PART.