Video and audio helped to prove that officers did not provide false statements in affidavit


In 2014, Roberto Garcia was arrested for driving while intoxicated. He was found sleeping in a parked vehicle in a private driveway to a construction site, which was steps away from a public road. According to Garcia, a friend was driving the vehicle with Garcia in the passenger seat when the car’s engine began to overheat. After the driver left to seek assistance, Garcia switched to the driver’s seat to take a nap.

Officer Zachary Sherron, a police officer with the San Antonio Police Department (“SAPD”), was called to Garcia’s location by other officers. According to Sherron, Garcia was asleep behind the wheel of a vehicle with its motor running when officers arrived. When officers woke Garcia and ordered him out of the vehicle, Garcia allegedly attempted to pull the vehicle forward. Sherron reported that he observed the vehicle lunge forward and then abruptly stop a few feet later. Sherron reported the car was running during “all of this” and another officer had to remove the keys from the ignition to turn off the vehicle.

Garcia disputes some of these factual assertions. In a deposition, he testified that the keys were in his pocket and denied that the vehicle was running. He denies the vehicle lunged forward. At most, the vehicle “rolled slightly” due to some other cause, such as his releasing the brakes or from the officers’ pounding on the window while the vehicle was in neutral.

Officer Julio Orta, also a police officer with the SAPD, arrived on the scene to determine whether Garcia had been driving while intoxicated. Orta asked Garcia to exit the vehicle to speak with him. Orta reported that Garcia smelled of alcohol, had slurred and confused speech, and had red and glassy eyes. Orta reported that Garcia stated that he had one drink in the morning, though he did not recall when he started or stopped drinking. After Garcia declined to participate in any field sobriety tests, Orta arrested Garcia.

To obtain a search warrant for Garcia’s blood and to support his pre-trial detention, the officers provided their incident reports and an affidavit to a magistrate. The officers alleged that Garcia “attempted to pull the vehicle forward,” that “the vehicle lunged forward and then abruptly came to a stop a few feet later,” and that “the vehicle was on and keys in the ignition.” Also, the officers reported that Garcia’s vehicle was found in a “public place” on the “2000 block of Zarzamora St.” Garcia later alleged that the officers’ statements were deliberately false and asserted they were motivated by a previous lawsuit Garcia had filed against another SAPD officer.

He was held in pretrial detention for 505 days, over 16 months, before his case was eventually dismissed.

Proceeding pro se, Garcia brought suit under 42 U.S.C. § 1983 against Officer Orta, Officer Sherron, SAPD Chief William McManus, the SAPD, and the City of San Antonio, asserting federal constitutional and related state law claims.

Garcia alleged that his pretrial detention was without probable cause in violation of the Fourth Amendment. He alleged that his detention was “unreasonable” because it was based on false evidence presented to the magistrate, rather than being supported by probable cause.

The defendants moved for summary judgment asserting qualified immunity. The district court disagreed, concluding there was a genuine dispute of material fact whether the officers made false statements that Garcia was “operating a motor vehicle” in violation of Texas law. On appeal, the 5th reversed and granted summary Judgement to the defendants.


A. Oral and video evidence

Here, the district court considered the video, photographs, expert evidence, and testimony from the parties and found a genuine factual dispute about “whether and by what means the vehicle traveled” and whether the vehicle was running with the keys in the ignition when the officers arrived. From that finding, the district court also found a genuine factual dispute about whether the officers’ statements that Garcia “attempted to pull the vehicle forward,” that the “vehicle lunged forward and then abruptly came to a stop a few feet later,” and that “the vehicle was on and keys in the ignition” were false.

The defendants argue that the district court erred by ignoring the objective video evidence that established the veracity of the materials Orta presented to the magistrate and the presence of probable cause for Garcia’s detention. In support, the defendants rely on a Supreme Court decision addressing the impact of video evidence. See Scott, which held that despite the usual rule that courts should adopt the plaintiff’s version of the facts when the defendant moves for summary judgment, a court should not rely on visible fiction and should view the facts in the light depicted by the videotape.

We conclude it to be undisputable from the video and photographic evidence that the vehicle moved forward with Garcia behind the wheel. He must have put his foot on the brakes just after the vehicle began its forward motion because that is when the brake lights came on.

A different issue arises from the fact that on the audio recording, more than one officer can be heard ordering Garcia to turn off the vehicle. All we need to hold today, and we do, is that the recorded oral assertions that the vehicle’s motor was on may not by themselves be enough to discredit Garcia’s statements, but they can be considered in deciding whether other evidence sufficiently contradicts.

B. Qualified Immunity

It is clearly established that a defendant’s Fourth Amendment rights are violated if (1) the affiant, in support of the warrant, includes a false statement knowingly and intentionally, or with reckless disregard for the truth and (2) the allegedly false statement is necessary to the finding of probable cause.

To determine if an allegedly false statement is necessary to the finding of probable cause, the court must consider the affidavit as if those false statements were removed and consider whether the remaining content would still support a probable cause finding. That standard also means that qualified immunity applies if the corrected affidavit would have supported a reasonable officer’s belief that probable cause existed.

After the incident, Garcia was charged with and detained for the offense of driving while intoxicated, which is committed “if the person is intoxicated while operating a motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a). Garcia alleges that the officers violated his Fourth Amendment rights because the officers knowingly made materially false statements to the magistrate that he was “operating a motor vehicle” and “in a public place.” We will analyze each assertion.

C. Operating a Motor Vehicle

Section 49.04 does not define “operate.” However, the Texas Court of Criminal Appeals has defined the statute as not being dependent on whether a person caused a vehicle to move.

The inquiry, then, is whether, under the totality of the circumstances, the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle’s use. Texas courts have upheld convictions for driving while intoxicated when the driver was found asleep behind the wheel of an idling vehicle, even though the car did not move. Another court held that the defendant’s application of the brake pedal, thereby restraining the vehicle’s actual movement, falls within the definition of operating a motor vehicle.

Our earlier summary showed that the video removed any doubt that Garcia was in the driver’s seat, the vehicle moved forward at least six inches, and the brakes stopped the car. To the extent Garcia argues the movement was too small to be unequivocal evidence that the motor was on and the car was in gear, and that perhaps something else caused the vehicle to move, we add to the mix the recorded commands from officers for Garcia to turn the motor off.

The vehicle moved, with Garcia in the driver’s seat and the motor on. He operated the motor vehicle. As to whether there were any false statements in the affidavit, all we see is a question about how far the vehicle moved. An affidavit asserting it moved at least six inches would still have supported a reasonable officer’s belief that Garcia was operating the vehicle. The district court should have adopted the version of the facts revealed by the evidence we have discussed.

D. Whether Garcia was in a public place

Garcia also argues that regardless of whether he was operating a motor vehicle while intoxicated, he was not doing so in a public place. The district court rejected this argument.

According to Texas Penal Code Section 1.07(a)(40), a public place is any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops. Texas courts interpret this provision as providing for a broad definition of a public place.

The district court found there was no genuine factual dispute regarding whether the vehicle was located on a publicly accessible driveway on the “2000 block of Zarzamora St,” which was properly characterized as a public place. We agree. The dashcam footage shows the vehicle was just off the roadway on a driveway to a construction site, feet away from the road. There were no visible signs warning the public not to enter the driveway nor any indication that access to the driveway was off-limits to members of the public. Thus, the district court did not err by concluding that the private driveway was properly characterized as a “public place” under Texas law.