1

United States Court of Appeals,

Fifth Circuit.

No. 96-11388.

A.J. WREN and Jerry Wren, Plaintiffs-Appellees,

v.

Jim TOWE, et al., Defendants-Appellants.

Dec. 30, 1997.

Appeal from the United States District Court for the Northern

District of Texas.

Before REYNALDO G. GARZA, SMITH and WIENER, Circuit Judges.

PER CURIAM:

The case before this panel comes from the United States

District Court for the Northern District of Texas, Judge Robert B.

Maloney, presiding. The district court denied a motion for summary

judgment made by the Defendants-Appellants, Jay Norris ("Norris")

and Jim Towe ("Towe") on the issue of qualified immunity.

Background

In January of 1995, Norris was teaching a class in Basic Auto

Theft to a group of students at the Arlington Regional Police

Academy. During one of these lessons, Norris was informed by an

eager student that he saw a Chevrolet pickup truck parked in the

parking lot that was missing its dashboard Vehicle Identification

Number ("VIN"). Norris, a member of the Dallas FBI Auto Theft Task

Force and a Special Texas Ranger, began investigating the ownership

of the truck.
 

1A reconditioned truck is an amalgam of body parts

cannibalized from other trucks. This truck was formed from the

cab of one truck attached to the frame and chassis of another. 

Body components on Chevrolet trucks made between 1988 and 1997

are interchangeable. 

2

Norris confirmed the absence of the dashboard VIN, and he

conducted a computer database search on the truck. This search

showed that the truck was registered to a dealer, though it did not

have dealer tags, was not on a sales lot, and did not have a "for

sale" sign. Norris ran a search on the license plates of the

truck, which indicated a different VIN for the truck. Further

investigation suggested to Norris that the truck had been totaled

or salvaged at some point, but the truck did not appear to be a

salvaged or rebuilt vehicle to Norris at that time.

Norris contacted the former owners of the truck, who explained

that it had been stolen and burned, a claim confirmed by the

insurance company. At a later time, the truck was owned by Texas

Custom Trucks, a truck reconditioning1 business which was under

investigation by the Dallas FBI Auto Theft Task Force as a

suspected "chop shop," a business which fashions reconditioned

vehicles from stolen parts. The State of Texas has a procedure

designed to foil would-be chop shop operators, in which

reconditioned vehicles must be inspected by a law enforcement

official and certified to be a legitimately reconditioned vehicle

on Texas Department of Transportation ("DOT") Form 68-A (the

"Form"). The Form 68-A on this truck was signed by Lt. Paul Pothen
 

2For the purposes of this appeal, we cannot assume that, as

Norris claims, Searcy said he sold the doors to another man, that

the truck was more severely damaged then he presently claims, or

that the lienholder on the truck, the General Motors Acceptance

Corporation ("GMAC") repossessed the remainder of the truck. 

However, if we did assume that the conversation went the way

Norris said it did, the conversation would add to Norris's

suspicions. 

 

3Norris apparently had in mind TEX.PEN.CODE § 31.03(c)(6)(B),

which provides that a buyer of a wrecked vehicle is presumed to

know that the vehicle is stolen unless the seller provides a

title certificate showing that the vehicle is not subject to a

lien. We need not and do not decide whether GMAC was the

rightful owner at this time. 

3

("Pothen"), a narcotics officer with the DeSoto, Texas, police.

Randy Brown ("Brown"), the proprietor of Texas Custom Trucks, was

a narcotics informant of Pothen's. Norris smelled collusion.

Pursuing his investigation further, Norris located a DOT Form

61, which revealed that the truck cab was owned by a William Searcy

("Searcy"). Searcy was contacted by Norris, and they spoke. The

substance of the conversation with Searcy is a matter of dispute,2

but it is undisputed that Searcy told Norris where he could find

certain unique features on the cab (custom lights, etc.), and that

GMAC held a lien on the truck.

Norris contacted GMAC, and was told that GMAC never

repossessed Searcy's truck. He was also told that a lien was

outstanding on the truck. The totality of all these circumstances

led Norris to believe a crime may have been committed when Searcy

sold the vehicle or its components without paying the GMAC lien.3

Norris then contacted Towe, an officer of the Texas Department of
 

4Norris and Towe assert that the Wrens consented to the

search, but the Wrens now deny such consent. This matter will be

dealt with in the analysis section. 

4

Public Safety ("DPS"), who was attached to the Dallas FBI Auto

Theft Task Force. Norris asked Towe for assistance in this

investigation, and Towe agreed to help.

On March 16, 1995, Norris and Towe located the truck and the

purported owners, Jennifer and Jerry Wren, the Plaintiff-Appellees

(the "Wrens"). The truck was parked in a public place, and Norris

and Towe conducted a search.4 No VIN was found in the glove

compartment, and there were parts throughout the vehicle with dates

earlier than the truck's manufacture. This, coupled with the

suspicious Form 68-A and the other circumstances, led Norris and

Towe to believe that the vehicle was the product of an illegal chop

shop. Norris and Towe decided that seizure of the vehicle was

necessary for a more extensive investigation and that the seizure

was justified under the TEX.CODE OF CRIM.PROC. ART. 47.01, et seq.,

and ART. 6687-1 § 49(c) (now codified as § 501.158 of the

TEX.TRANS.CODE). The vehicle was seized, the Wrens were issued a

receipt, and the requisite inventory form was filed with the

Justice of the Peace Court. Upon further investigation of the

vehicle, it was discovered that more confidential VINs were missing

or obliterated. Norris and Towe thought this was inconsistent with

a legitimately reconditioned truck.

A hearing was held on April 14, 1995, before Justice of the
 

5A third defendant, Olen Manning, was dropped from this suit

by the district court. The district court held that Manning had

no part in the search and seizure, and hence could not be sued in

this case. Summary judgment was granted in his favor, and this

matter is not appealed. 

5

Peace Roy Kurbin, pursuant to his authority and jurisdiction under

TEX.CODE OF CRIM.PROC. ART. 47.01, et seq. After hearing the

evidence, Judge Kurbin found that probable cause existed at that

time, and awarded possession to the Dallas FBI Auto Theft Task

Force. Subsequently, it became apparent that the truck was not the

product of an illegal chop shop. The truck was held until August

23, 1995, when the county court awarded the vehicle to the Wrens,

pursuant to an agreed order.

The Wrens filed suit against Norris and Towe5 on July 6, 1995,

asserting claims under 42 U.S.C. § 1983 for violations of the

Fourth and Fourteenth Amendment protections against unreasonable

seizure, together with state law claims of trespass and conversion.

Norris and Towe claimed both qualified and official immunity.

Norris and Towe moved for summary judgment, and their motion was

denied on October 2, 1996 by Judge Robert B. Maloney. Judge

Maloney held that (1) the hearing before Judge Kurbin did not

insulate the officers from liability, (2) there is a dispute over

whether the Wrens consented to the search, and (3) viewed in the

light most favorable to the Wrens, the evidence tended to show that

Norris and Towe did not have probable cause to seize the truck.

Norris and Towe timely appealed, and the case now lies before
6

this panel.

Jurisdiction and Standard of Review

Generally, this Court will only hear appeals from final

orders, and thus, we usually would not hear an appeal from a denial

of summary judgment. Naylor v. State of La. Dept. of Corrections,

123 F.3d 855, 857 (1997). However, where summary judgment is

denied in a civil rights action on the question of a government

officer's immunity from suit, exceptions to this general rule

exists. The collateral order doctrine is such an exception, and

permits an interlocutory appeal in circumstances such as these.

Id.; see also Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806,

86 L.Ed.2d 411 (1985); Hale v. Townley, 45 F.3d 914, 918 (1995).

Our review of the matter is limited by the extent to which

the district court's actions were based upon an issue of law.

Johnson v. Jones, 515 U.S. 304, 312-314, 115 S.Ct. 2151, 2156, 132

L.Ed.2d 238 (1995) (no immediate appeal of orders based on

sufficiency of evidence). However, the existence of disputed

issues of material fact does not necessarily preclude review of the

case. "Johnson permits petitioner to claim on appeal that all of

the conduct which the District Court deemed sufficiently supported

for the purposes of summary judgment met the Harlow standard of

"objective legal reasonableness.' " Behrens v. Pelletier, 516 U.S.

299, ----, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996); see also

Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396
7

(1982); Coleman v. Houston Indep. School Dist., 113 F.3d 528 (5th

Cir.1997).

 Many of the facts relating to the availability of qualified

immunity are in dispute, but this alone does not prevent summary

judgment. A district court's denial of summary judgment is not

immune from interlocutory appeal simply because the denial rested

on the fact that a dispute over material issues of fact exists.

Behrens, 516 U.S. at ----, 116 S.Ct. at 842. To foreclose appeal,

the disputed facts must be central to and not severable from the

matter of qualified immunity. Id. In this case, we feel that we

have jurisdiction based on the undisputed facts, even if we assume

the resolution of disputed facts in the Wrens' favor. Our basis

for this conclusion will be stated later.

The standard of review is as follows. We review a district

court's denial of summary judgment de novo. Coleman, 113 F.3d at

533. Summary judgment is appropriate only "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to material fact and that the moving party is entitled to

summary judgment as a matter of law." FED.R.CIV.P. 56(c). The

party seeking summary judgment bears the burden of showing that

there is an absence of evidence to support the non-movant's case,

and after a proper motion for summary judgment is made, the

non-movant must set forth specific facts showing that there is a
8

genuine issue for trial. Coleman, 113 F.3d at 533.

Analysis

First of all, Norris is a law enforcement officer, and is

entitled to qualified immunity. While it is true that Norris is

retired from the Louisiana State Police, he is also presently a

member of the Dallas FBI Auto Theft Task Force, an instructor at

the Arlington Regional Police Academy and the Texoma Regional

Police Academy, a Special Texas Ranger, and a Deputy U.S. Marshal.

We do not see any reason to doubt Norris' statements that he acted

as a member of the Dallas FBI Auto Theft Task Force. Therefore, as

a law enforcement officer, Norris can be entitled to immunity.

There exists a dispute between the parties regarding whether

or not the Wrens consented to the search. In the absence of

consent, a search warrant, or exigent circumstances, a search of

the Wrens' truck would be illegal. We will assume this matter in

favor of the Wrens and assume that the search was illegal. The

analysis does not stop there, however. Exclusion of the evidence

found by Norris and Towe on the basis that they had no legal right

to search the vehicle would, in effect, be an application of the

exclusionary rule to this case. Such an application would be

inappropriate. The Supreme Court has never applied the

exclusionary rule to civil cases, state or federal. City of Waco

v. Bridges, 710 F.2d 220, 225 (5th Cir.1983).

It is true that the exclusionary rule applies in forfeiture
 

6It should be noted that the panel in Jonas expressed "grave

reservations about whether, as a matter of law, police officers

who illegally obtain evidence may use that evidence to establish

a good-faith defense to a Section 1983 action." Jonas, 647 F.2d

at 588 n. 12. These "reservations" are not in themselves binding

precedent, and do not cover the situation in this case. 

9

proceedings. Vance v. United States, 676 F.2d 183, 186 (1982).

This is because forfeiture is considered to be a criminal or

quasi-criminal sanction. Waco, 710 F.2d at 225. This circuit has

stated that because "forfeiture is clearly a penalty for

transgressing criminal laws, exclusion of illegally seized evidence

is thought to obtain the same deterrent effect as exclusion in a

criminal proceeding." Jonas v. City of Atlanta, 647 F.2d 580, 587

(5th Cir. Unit B 1981).6

The rationale behind the exclusionary rule is "to safeguard

Fourth Amendment rights generally through its deterrent effect,

rather than a personal constitutional right of the party

aggrieved," and application of the rule is "restricted to those

areas where its remedial objectives are thought to be most

efficaciously served." United States v. Janis, 428 U.S. 433, 446-

447, 96 S.Ct. 3021, 3028-3029, 49 L.Ed.2d 1046 (1976) (citing U.S.

v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561

(1974)). Based on the deterrent rationale and the precedent, there

is no reason to ignore and exclude the evidence found in the truck.

Also, regarding the seizure, TEXAS TRANSPORTATION CODE § 501.158

permits seizure of a vehicle with a missing VIN sticker without a
10

warrant. This section of the code has never been declared

unconstitutional, and we do not pass on its constitutionality at

this time. We mention this point only to further show that the law

does not require exclusion of the evidence because of a lack of a

warrant.

Given the facts known both before and after the search, it

cannot be said that Norris and Towe's belief that something illegal

was happening was unreasonable. It is the information known at the

time of seizure and the reasonability of the inferences drawn from

such information which is the key. See Anderson v. Creighton, 483

U.S. 635, 641, 107 S.Ct. 3034, 3039-3040, 97 L.Ed.2d 523 (1987);

Hunter v. Bryant, 502 U.S. 224, 227-228, 112 S.Ct. 534, 536-537,

116 L.Ed.2d 589 (1991).

 Further, the district court assumed that the execution of a

Form 68-A on a reconditioned vehicle establishes a presumption that

the vehicle is legitimate. The district court felt that Norris and

Towe's knowledge of the existence of the Form did not argue well

for the reasonability of their inferences. This was in error.

While the Form is definitely useful evidence in establishing

legitimacy, we know of no precedent that turns the existence of a

Form 68-A into a presumption of legitimacy. The Form merely

requires that a law enforcement officer certify that he inspected

the vehicle and that he found the manufacturer's number to be the

VIN. The existence of the Form does not undermine Norris and
11

Towe's case.

At this point, now that we have decided that all of the

information known to Norris and Towe at the time of the seizure may

be considered in determining the reasonability of their actions, we

turn to the standards for qualified immunity, and how those

standards apply to this case. Qualified immunity shields

government officials performing discretionary functions from

personal civil liability "insofar as their conduct does not violate

clearly established statutory or constitutional rights that a

reasonable person should have known." Harlow, 457 U.S. at 818, 102

S.Ct. at 2738. Qualified immunity is immunity from suit

altogether, not just a defense to liability. Mitchell, 472 U.S. at

526, 105 S.Ct. at 2815-2816. The purpose of qualified immunity is

to shield law enforcement officers from the burdens of fighting

lawsuits which arise from the good-faith performance of their

duties. Hunter, 502 U.S. at 227-228, 112 S.Ct. at 536-537.

Therefore, the issue of qualified immunity must be settled at the

earliest possible point in litigation. Id.

As stated, a court must inquire into the "objective legal

reasonableness" of an officer's actions in cases such as this.

Behrens, 516 U.S. at ----, 116 S.Ct. at 838. There is a two-step

analysis for determining the existence of qualified immunity.

First, has a clearly established constitutional right been

violated? Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir.1994).
12

If the answer is yes, we analyze the situation and assess the

objective reasonableness of the officer's actions. Id.

Qualified immunity protects government officials "as long as

their actions could reasonably have been thought consistent with

the rights they are alleged to have violated." Pfannstiel v. City

of Marion, 918 F.2d 1178, 1183 (5th Cir.1990) (citing Anderson, 483

U.S. at 638, 107 S.Ct. at 3038). Qualified immunity protects "all

but the plainly incompetent or those who knowingly violate the

law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1100,

89 L.Ed.2d 271 (1986). If reasonable public officials could differ

on the legality of a defendant's actions, the defendant is entitled

to immunity from suit. Pfannstiel, 918 F.2d at 1183.

 The key point here is not whether Norris and Towe had

probable cause to seize the truck, and the reliance of the district

court on this point is in error. It is true that after the initial

seizure, the legitimacy of the reconditioned truck was established.

This alone does not open Norris and Towe to liability. Law

enforcement officers are only human, and inevitably, accidents and

mistakes of judgment will happen, and these mistakes alone do not

open officers to personal liability.

This circuit has dealt with such matters in two cases similar

to this one: Bigford v. Taylor, 834 F.2d 1213 (5th Cir.1988)

("Bigford II "), and Bigford v. Taylor, 896 F.2d 972 (5th Cir.1990)
 

7Bigford I, 784 F.2d 1111 (5th Cir.1986) was an earlier

unpublished case sending the matter to trial. Bigford II was

remanded and tried on the merits, and the case went back up to

this circuit as Bigford III. 

13

("Bigford III ").7 In Bigford II, a truck was seized by law

enforcement officers and the owner filed a civil rights claim. The

suspicions of the Sheriff's Deputy in Bigford II turned out to be

unjustified, but at the time the Deputy cited the following to

support his suspicions: the Federal Inspection Safety Sticker was

missing from the inside of the door, the Deputy thought the rivets

affixing the VIN plate to the dash were tampered with, the Deputy

thought the truck's body did not match its frame, and he could not

find the VIN stamped on the engine (it was there, and later found).

Bigford II, 834 F.2d at 1215-1216.

Further, in Bigford II, the Deputy, using a computer database,

found that the truck was never listed as stolen. Also, the

plaintiff established a clear chain of title from the original

owner to himself. Still, the truck was seized, held in an impound

lot for three years, and reduced to a pile of scrap by Hurricane

Alicia. Id. at 1216-1217. This Court found that Bigford's rights

were violated, that no probable cause existed, and remanded the

case for further proceedings. Id. at 1223.

After a trial, the case returned as Bigford III. This Court

undertook the second part of the analysis, and examined qualified

immunity. This Court noted that the probable cause standards for
14

reasonableness differ from those for qualified immunity. After

analyzing the facts, this Court concluded that the "fact situation

is too close to say that these conflicting indications could not

have led a reasonable officer to believe that there was probable

cause to seize the truck," and the officer was held to be entitled

to immunity from liability. Bigford III, 896 F.2d at 975.

Norris and Towe had far more reasons to be suspicious than the

Deputy in the Bigford cases. If Bigford was an example of a close

case which allowed for immunity, this case surely allows for

immunity. Norris and Towe knew that various VINs were missing,

that the truck was registered to a dealer, that the truck's present

condition did not match its damage record, that the truck was

reported stolen, that the truck was sold with a lien on it, that

the Form 68-A was suspicious, and that the truck was linked to an

alleged illegal chop shop. While these facts have been explained,

at the time, it can hardly be said that a suspicion based on these

facts was unreasonable.

The Wrens also allege state law claims for trespass and

conversion, and Norris and Towe invoke official immunity under

state law for these claims. We have jurisdiction over these claims

as we do the federal claims. See Mitchell, 472 U.S. at 524-530,

105 S.Ct. at 2814-2818. Texas law of official immunity is

substantially the same as federal qualified immunity law. Cantu v.

Rocha, 77 F.3d 795, 808 (5th Cir.1996).
15

Texas law provides for immunity from suit for government

officials for matters arising from the performance of their

discretionary duties, as long as they are acting in good faith and

within the scope of their authority. City of Lancaster v.

Chambers, 883 S.W.2d 650, 653 (Tex.1994). As stated, Norris and

Towe's actions were in good faith, and their actions were obviously

within their scope of authority. Also, the Wrens have not shown

that Norris and Towe's actions were unreasonable, as is necessary.

Cameron County v. Alvarado, 900 S.W.2d 874, 880 (Tex.App.—Corpus

Christi 1995, writ dism'd w.o.j.). Hence, Norris and Towe are

immune from suit in the state claims as well.

Conclusion

The district court erred in denying summary judgment in favor

of the Defendants-Appellants, for the reasons listed. Therefore,

we REVERSE and REMAND the decision of the district court, and we

order the district court to render judgment in favor of Norris and

Towe, granting them qualified immunity.

REVERSED AND REMANDED.