Submitted January 16, 2015.
Appeal from United States District Court for the Western District of Arkansas - Fayetteville.
For David Allen New, Plaintiff - Appellee: Jo Alison Lee, Norman Douglas Norwood, Norwood & Norwood, Rogers, AR.
For Dale Denver, Defendant - Appellant: Jason E. Owens, Geoffrey Thompson, Rainwater & Holt, Little Rock, AR.
Before LOKEN, MELLOY, and GRUENDER, Circuit Judges. GRUENDER, Circuit Judge, dissenting.
LOKEN, Circuit Judge.
Patrol Sergeant Dale Denver of the Benton County Sheriff's Office arrested David New in September 2009 for possession of marijuana after two leaves were found during a consensual search of New's
car following a traffic stop. When the Arkansas State Crime Laboratory tested the leaves and reported they did not contain detectible amounts of Tetrahydrocannabinol (" THC" ), the prosecutor dropped a criminal charge that New violated Ark. Code § 5-64-401 (repealed in 2011). New commenced this 42 U.S.C. § 1983 action against Denver, alleging he was arrested without probable cause in violation of the Fourth and Fourteenth Amendments.
Denver moved for summary judgment on the merits and based on qualified immunity. The district court denied the motion, concluding that, at the summary judgment stage, the court could not make " a credibility determination crediting Mr. Denver's assertions as true in the face of contrary evidence -- a negative lab result and the contrary averments of Mr. New." Denver appeals, arguing the undisputed material facts establish he is entitled to qualified immunity as a matter of law. " [A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We agree with Denver's contention and therefore reverse.
Sheriff's Deputy Kurt Banta stopped New's vehicle for speeding shortly after 8:00 a.m. on a Saturday morning. Banta learned that New and his passenger, New's brother Michael, had prior arrests for marijuana possession. Though claiming to be in a hurry, New gave Banta consent to search the vehicle. Deputy Santos arrived as back-up and waited with the News outside the car while Banta began his search on the passenger side of the front seat. New told Santos there was a knife in the console, which Banta had already found. Supervisor Denver, patrolling in the area, went to the scene and joined Banta, searching from the driver's side of the vehicle. Denver found a dried and curled leaf he identified as marijuana between the driver's seat and the door frame. He advised Banta this was now a probable cause search, and the two searched more aggressively. They found a second leaf on the floor almost under the driver's seat. Denver placed the leaves in a brown sack, ...