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Qualified immunity granted for officers after investigation for criminal mischief and arrest for evasion


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On February 21, 2021, Floyd Wallace was walking around the parking lot of the Tomball Police Department (TPD) while recording on his body camera and cell phone. As he was walking away, TPD officer Heather Taylor pulled up in her police SUV with the emergency lights activated. She told Wallace, “Hey man, get over here. Come here” and asked, “What are you doing over here? What are you doing behind the police tower?”

Taylor continues to ask Wallace what he was doing behind the police tower in the parking lot when TPD officer Tyson Hamilton approaches. A moment later, Wallace heard a police siren and saw another police SUV approaching him. He said “I don’t have time for this sh–. I’m out,” and he walked away from Taylor and Hamilton. The vehicle pulled over in front of him, and TPD officer Lopez got out and approached Wallace.

Wallace asked why he was being detained, and Lopez responded that he heard he had run from one of the other officers. Taylor told Lopez that Wallace was “creeping around behind the police tower crouching down right by it and as soon as he saw me, he f—ing bolted.” Lopez asked Wallace what he was doing in the parking lot and if he was damaging their property. He then handcuffed Wallace and told him he was being detained for an investigation of potential criminal mischief.

Lopez, Taylor, and Hamilton repeatedly demanded that Wallace provide them with his ID card. Wallace refused, claiming he did not have to provide any identifying information unless he was under arrest. The officers patted Wallace down and placed him on the ground where they directed him to sit. Two other TPD officers then arrived at the scene, including James Hartley.

After speaking with someone on the phone, Taylor directed Hartley and Hamilton to stand Wallace up and search him for his wallet so they could identify him. Wallace repeatedly protested that he did not consent to searches. Hartley and Hamilton searched Wallace, but they did not find a wallet on him. Lopez returned and told Wallace that Taylor checked out the police tower and observed that one of its tires looked as if it was not properly inflated. Lopez also told Wallace that Taylor was speaking with the District Attorney so they could bring criminal charges against him. In hopes of avoiding arrest, Wallace verbally provided his name, birthday, and address. The officers picked Wallace up from the ground, and Taylor told him he was under arrest for evading a police officer and failing to identify himself.

The District Attorney brought only one charge against Wallace: evading arrest from Lopez. At a probable cause hearing, the magistrate determined there was not sufficient probable cause to support the charge, and Wallace was immediately released.

Wallace alleged a Fourth Amendment unreasonable seizure claim against Taylor and a Fourth Amendment unreasonable search claim against Hamilton and Hartley. The district court Judge denied qualified immunity to the individual Defendants in a terse order, stating in relevant part: The Court is of the opinion that the defendants’ defense of qualified immunity is premature. Moreover, the facts presented, in their totality, do not support dismissal of this suit. In the Court’s opinion, it may be argued that the officers had a proper basis to question and/or temporarily detain the plaintiff until their suspicions were determined to be unfounded. However, qualified immunity does not shield officers from insisting on being ‘right’ and placing charges against a citizen when their suspicions are proved unfounded. The 5th reversed.


Qualified immunity provides government officials with immunity from suit insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. We apply a two-part test: (1) whether the plaintiff has alleged a violation of a constitutional right; and (2) if so, whether the right was clearly established at the time of the violation. See Cooper.

A. Unreasonable Seizure

Wallace alleges that Taylor violated his Fourth Amendment rights by seizing him without probable cause. Wallace makes this claim with respect to both his investigative detention and ultimate arrest. For his investigative detention, police officers may stop and briefly detain an individual for investigative purposes if they have reasonable suspicion that criminal activity is afoot. See Carroll. Reasonable suspicion requires the police officer to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. See Rodriguez.

A1. Seizure by Detention

According to Wallace’s complaint, Taylor saw Wallace crouched down by the police tower in the parking lot. Wallace explained that “after looking at the police tower, a portable surveillance tower, in the parking lot, he ran a short distance across the parking lot and then began to walk to other areas of the Police Station.” Taylor and Lopez repeatedly asked Wallace what he was doing behind the police tower in the parking lot and if he had damaged TPD property. They placed Wallace under investigative detention for criminal mischief, and Taylor checked to see if the tower had been tampered with.

Wallace admits that he was standing near the police tower in the TPD parking lot and then ran a short distance away. This activity alone was sufficient for Taylor to have a reasonable suspicion that Wallace was tampering with the police tower, so she had authority to detain Wallace, ask him what he was doing, and investigate whether the police tower had been tampered with. Since this is what Wallace alleges she did, at a minimum, it was not clearly established that Taylor was committing a constitutional violation during Wallace’s initial detention.

A2. Seizure by Arrest

For Wallace’s arrest, Taylor is entitled to qualified immunity unless there was no actual probable cause for the arrest and Taylor’s decision to arrest was objectively unreasonable in light of clearly established law. See Crostley. The Supreme Court has defined probable cause as the facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense. See Piazza. If an officer reasonably but mistakenly believes that probable cause exists, she is entitled to qualified immunity.

Wallace was only charged with evading arrest from Lopez. However, when considering wrongful arrest claims, we apply an objective standard, which means that we will find that probable cause existed if the officer was aware of facts justifying a reasonable belief that an offense was being committed, whether or not the officer charged the arrestee with that specific offense. See Club Retro.

As discussed above, Taylor had reasonable suspicion to lawfully detain Wallace for an investigation. The next question is whether Taylor was attempting to arrest or detain Wallace. Wallace argues that Taylor was not attempting to arrest or detain him because she did not tell him he was being arrested or to stop when he started walking away. Defendants argue that Taylor had probable cause to arrest Wallace for evading arrest because a reasonable officer in Taylor’s situation would have understood that Wallace committed the offense by ignoring her command to ‘come here’ and walking away.

Again, Wallace alleged that Taylor pulled up in a police SUV with the emergency lights activated. Taylor directed Wallace repeatedly to “come here.” Even without telling Wallace to stop or that he was under arrest, a reasonable officer could believe that activating emergency lights and commanding Wallace to “come here” are a sufficient show of authority to put him on notice that he or she intends to detain him. See Wright.

Also, a person commits a crime under Section 38.04 of Texas law if he knows a police officer is attempting to arrest him but nevertheless refuses to yield to a police show of authority. While Wallace was stopped by Lopez soon after he walked away from Taylor, even a dispirited, brief attempt to walk away from an officer’s command to stop has been held to be sufficient flight to constitute evading arrest or detention. Taylor’s decision to arrest Wallace was not objectively unreasonable in light of clearly established law. Accordingly, Taylor is entitled to qualified immunity from Wallace’s unlawful detention and unlawful arrest claims against her.

B. Unreasonable Search

Wallace also alleges that Hartley and Hamilton violated his Fourth Amendment rights by searching his person without his consent. The officers searched Wallace for his wallet after he refused to identify himself. When Hartley and Hamilton stood him up to search him, he repeatedly asked the officers to stop searching and proclaimed that he did not consent to searches. Defendants argue that Hartley and Hamilton’s search was a valid search incident for a weapon, but Wallace alleges that the stated purpose of the search was to find his wallet so the officers could identify him.

This court recently confronted a similar claim in McCullough. There, the officers arrested the plaintiff for interference of public duties, and they searched her wallet for identification after she refused to identify herself. We concluded that plaintiff had failed to show that it is clearly established that a limited search for the sole purpose of procuring identification, after an uncooperative arrestee refuses numerous requests to identify herself, violates the Fourth Amendment. However, the plaintiff in that case was already under arrest, so the officers performed a search incident to a lawful arrest. Here, Wallace alleges the officers searched him while he was under investigative detention and before he was arrested.

The Texas Court of Criminal Appeals has explained the materiality of this distinction: Though an officer may ask a defendant to identify himself during a valid investigative detention, that does not automatically mean that the officer can search a defendant’s person to obtain or confirm his identity. Consequently, the officer’s conduct of reaching into appellant’s pocket—even under a valid investigative detention—was an illegal search unless there existed some exception to the usual probable cause requirement.

Nevertheless, the Texas Court of Criminal Appeals has also held that it is irrelevant that the arrest occurs immediately before or after the search incident, as long as sufficient probable cause exists for the officer to arrest before the search. Even if the officers had not formally arrested Wallace yet, Wallace had already walked away from Taylor. Assuming that Wallace’s detention had not already amounted to a formal arrest, Wallace has failed to show it is clearly established that, in a situation where officers reasonably believe they have probable cause to arrest someone, a search to procure identification after the detainee refuses to identify himself violates the Fourth Amendment. Hartley and Hamilton are entitled to qualified immunity from Wallace’s Fourth Amendment claim against them.

For the reasons stated above, we REVERSE the district court’s denial of qualified immunity as to Taylor, Hartley, and Hamilton and RENDER judgment in their favor.