(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-3027
LARRY SPEARS, Plaintiff-Appellant,
versus
RALPH SMITH, ET AL., Defendants,
SALVATORE SAM CARUSO and
ROBERT CALLAHAN, SR., Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
CA 90 3013 H
June 14, 1993
Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.
POLITZ, Chief Judge:*
In this civil rights action, Larry Spears appeals an adverse
summary judgment, based on qualified immunity grounds, with respect
to defendants Salvatore Sam Caruso and Robert Callahan, Sr. We
affirm.

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2
Background
Spears worked for the City of Slidell, Louisiana as an unpaid
traffic and safety consultant. In connection with his duties, the
city provided Spears with an office containing a desk and two
filing cabinets in its police department annex building. Spears
typically locked the office upon leaving.
In June 1989 Spears came under suspicion of improperly using
his position with the city to influence disposition of traffic
citations. One evening, Slidell police officer Jay Strahan and
detective Ralph Smith, allegedly with the assistance of officer
Mike Freeman, entered Spears' office to investigate these
allegations. Strahan and Smith found a number of documents which
they believed to be "fixed" traffic citations, as well as others
which they believed related to unlawful activity by Spears. These
documents were copied and the originals were replaced where found.
Strahan and Smith forwarded copies of the documents to the
Louisiana State Inspector General's (SIG) office. They also
contacted Slidell city council member Callahan, informing him of
the evidence they had found and raising the possibility of
returning to Spears' office to obtain more information. Callahan
relayed this information to mayor Caruso. On July 2, after
consulting city attorney Elaine Guillot, Caruso, Callahan and
Strahan made a second nocturnal visit to Spears' office, gaining
access with a master key.
Callahan and Caruso found nothing suspicious in unlocked desk
and filing cabinet drawers. Following telephonically received

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1 Spears insists that searchers removed papers from his
desk drawers, rather than simply papers in plain view on the desk
top.
3
advice from Guillot during the search, Caruso did not open a locked
desk drawer. Callahan and Strahan attest that the search yielded
additional documentary evidence of ticket-fixing in plain view on
Spears' desk and in a wall-mounted cubbyhole, copies of which Smith
transmitted to the SIG.1 Affidavits by Callahan and Caruso attest
that they searched Spears' office to assist in a criminal
investigation by the SIG's office, and also that they did so as
part of an investigation into alleged work-related misconduct.
Following a city civil service commission hearing focusing on
the ticket-fixing charges, Spears was removed as a safety
consultant. As a result of their testimony at that hearing, Smith
and Freeman were indicted for perjury. Investigations by the SIG
and St. Tammany Parish District Attorney's offices exonerated
Spears of any criminal wrongdoing.
After learning of the two searches, Spears filed the instant
action under 42 U.S.C. § 1983, alleging violations of his fourth
and fourteenth amendment rights by Smith, Strahan, Freeman, and the
City of Slidell. He later amended his pleadings to include
identical claims against Caruso and Callahan. Smith, Strahan, and
Freeman asserted their fifth amendment privilege against self-
incrimination in response to deposition notices by Spears. Caruso
and Callahan moved for summary judgment, claiming that their
actions did not violate Spears' fourth amendment rights or, in the

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2 The district court administratively closed the action
with respect to the remaining defendants, pending the resolution of
the criminal prosecutions against Smith and Freeman.
3 E.g., King v. Chide, 974 F.2d 653 (5th Cir. 1992).
4 Fed.R.Civ.P. 56(c).
5 E.g., Lavespere v. Niagara Mach. & Tool Works, Inc., 910
F.2d 167 (5th Cir. 1990); King.
6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);
King; Fields v. City of South Houston, Tex., 922 F.2d 1183 (5th
4
alternative, that qualified immunity shielded them from suit.
After a hearing, the court permitted Spears additional time in
which to find and file evidence relating to the qualified immunity
defense. None was forthcoming and the court granted summary
judgment to Caruso and Callahan. At Spears' request, the trial
court entered judgment for Caruso and Callahan pursuant to
Fed.R.Civ.P. 54(b),2 and he timely appealed.
Analysis
We review rulings on summary judgment motions de novo, guided
by the same standards applied by the district courts.3 Summary
judgment is appropriate where the evidence "show[s] that there is
no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law."4 In conducting our
analysis, we view the evidence in the light most favorable to the
nonmovant5 and determine materiality by reference to governing
substantive law.6 No "genuine issue as to any material fact"

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Cir. 1991).
7 Lavespere; see Anderson, 477 U.S. at 251-52.
8 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also
Anderson v. Creighton, 483 U.S. 635 (1987); Mitchell v. Forsyth,
472 U.S. 511 (1985); King.
9 E.g., Anderson, 483 U.S. at 639; Mitchell, 472 U.S. at
530; Harlow, 457 U.S. at 818; King (citing Pfannstiel v. City of
Marion, 918 F.2d 1178 (5th Cir. 1990)).
10 Siegert v. Gilley, 111 S.Ct. 1789, 1793 (1991); Quives v.
Campbell, 934 F.2d 668, 670 (5th Cir. 1991).
5
exists and we perforce must affirm a grant of summary judgment if
the evidence, so viewed, would not permit a rational fact finder to
resolve material issues against the movant.7
Qualified immunity shields officials from liability for acts
which do not "violate clearly established rights of which a
reasonable person would have known,"8 under the law extant at the
relevant time.9 In considering assertions of qualified immunity,
however, we conduct this "objective legal reasonableness" analysis,
only if the plaintiff has alleged violation of a "clearly
established constitutional right."10 Spears' claim that the search
of his office by Callahan and Caruso violated the fourth amendment
proscription on "unreasonable searches and seizures" fails to
surmount this initial hurdle.
The fourth amendment affords protection against unreasonable

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11 See, e.g., United States v. Jacobsen, 466 U.S. 109
(1984).
12 480 U.S. 709 (1987).
13 Supervisors suspected the employee-physician of sexual
harassment and misconduct related to his supervision of a residency
training program.
14 Id. at 718-19 (plurality opinion); id. at 730-31 (Scalia,
J., concurring); id. at 732 (Blackmun, J., dissenting).
15 O'Connor, 480 U.S. at 725-26 (plurality opinion); id. at
732 ("I would hold that government searches to retrieve
work-related materials or to investigate violations of workplace
rules -- searches of the sort that are regarded as reasonable and
normal in the private-employer context -- do not violate the Fourth
Amendment") (Scalia, J., concurring); see also Shields v. Burge,
874 F.2d 1201, 1203-04 (7th Cir. 1989) (plurality position in
6
official intrusion into protected privacy interests.11 In O'Connor
v. Ortega,12 the Supreme Court considered the application of that
provision to workplace searches of government employees. That case
involved a fourth amendment claim arising out of the search of a
government employee's office by supervisors investigating alleged
misfeasance.13 Although no opinion in O'Connor commanded majority
support, the justices unanimously recognized the employee's
protected privacy interest in his desk and filing cabinet, because
he had exclusive use of and stored personal items there.14 Five
justices further agreed that an intrusion by a public employer on
such a protected privacy interest of a government employee for
noninvestigatory, work-related purposes and for investigation of
work-related misconduct does not violate the fourth amendment if
reasonable in its inception and scope.15 The plurality, however,

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O'Connor had support of five justices); Schowengerdt v. General
Dynamics Corp., 823 F.2d 1328, 1335 (9th Cir. 1987) (same). The
plurality indicated that this reasonableness turns upon the
existence of "reasonable grounds for suspecting that the search
will turn up evidence that the employee is guilty of work-related
misconduct, or that the search is necessary for a noninvestigatory
work-related purpose" and upon whether "the measures adopted are
reasonably related to the objectives of the search and not
excessively intrusive in light of . . . the nature of the
[misconduct]." O'Connor, 480 U.S. at 726 (quoting New Jersey v.
T.L.O., 469 U.S. 325, 342 (1985)) (plurality opinion).
16 O'Connor, 480 U.S. at 723 (plurality opinion).
7
carefully limited its holding to those two types of searches.16
The parties in the case at bar do not dispute that Spears had
a protected privacy interest in the areas searched by Caruso and
Callahan. Undisputed summary judgment evidence, however, reflects
that Strahan and Smith approached Callahan with proof that Spears
was using his position with the city to "fix" traffic tickets, and
that Caruso and Callahan entered Spears' office to investigate
those allegations. The summary judgment evidence further
establishes that Callahan and Caruso restricted their search to
Spears' desk top, filing cabinet, unlocked desk drawers, and wall-
mounted cubbyholes. The record presents no issue of fact about
whether Callahan and Caruso had, in the words of the O'Connor
plurality, a reasonable suspicion that their search of Spears'
office would uncover new evidence of ticket-fixing, or about the
reasonableness of the scope of the search in view of those
suspicions.
Spears argues that the record creates an issue of fact about
the purpose of the July 2 search, precluding summary judgment. We

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17 In relevant part, that affidavit reads:
On or about June 28, 1989, I received a phone call from
Councilman Bob Callahan. He advised that Slidell Police
Officers Jay Strahan and Ralph Smith told him of thier
belief that public documents in Larry Spear's [sic]
office . . . would aide [sic] the criminal investigation
being conducted by the Inspector General's Office.
18 Indeed, we note that the O'Connor Court reserved judgment
on the standards governing investigatory searches directed at
uncovering purely criminal misconduct.
19 O'Connor, 480 U.S. at 720-21 (noting paucity of
authority).
20 E.g., United States v. Collins, 349 F.2d 863 (2d Cir.
1965) (because "[t]he agents were not investigating a crime
unconnected with the performance of defendant's duties as a Customs
employee," search of surface and interior of employee's desk to
locate evidence of mail theft did not violate fourth amendment)
(citing United States v. Blok, 188 F.2d 1019 (D.C. Cir. 1951)).
8
cannot agree. He points to an affidavit by Caruso as evidence that
Caruso conducted the search solely as part of a criminal
investigation.17 Affidavit testimony reflects that Caruso searched
Spears' office "to attempt to locate evidence of malfeasance being
conducted by a city employee." Regardless of the parties'
characterizations of the search, improper use of public office for
ticket-fixing -- investigation of which undisputedly motivated the
search -- constitutes both criminal wrongdoing and "work-related
misconduct." The O'Connor Court did not purport to address
investigative searches of this sort.18 Further, the sparse pre-
O'Connor authority on the subject19 suggests that such searches do
not violate the fourth amendment.20 Against this backdrop, we are

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21 Spears also claims that the district court improperly
entered summary judgment against him before he could obtain
discovery from Smith, Strahan, and Freeman. The record, however,
does not indicate that Spears raised this contention in the
district court and we therefore decline to consider it. E.g.,
Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115 (5th Cir.
1992).
9
impelled to the conclusion that Spears has not alleged violation of
a "clearly established" constitutional right.21
For the foregoing reasons, the judgment of the district court
is AFFIRMED.

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