Swate v. Hayth

* District Judge for the Eastern District of Texas, sitting by
designation.
** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 98-21047
_______________________
TOMMY E. SWATE,
Plaintiff-Appellee,
versus
BRUCE TAYLOR, ET. AL.,
Defendants,
TERESA L. HAYTH,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-94-CV-727)
_________________________________________________________________
June 8, 2000
Before JONES and BENAVIDES, Circuit Judges, COBB, District Judge.*
PER CURIAM:**
Dr. Swate’s medical clinic was searched by DEA Agent Pack
and others pursuant to warrants that suggested Swate was illegally
dispensing methadone to his patients. Officer Pack invited

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television crews to accompany her on two of the searches, and some
of the events that transpired were later broadcast. (Search in
April 1992, and the officers permitted, not invited).
Dr. Swate sued Pack and other DEA officers for violation
of his Fourth Amendment rights under a Bivens theory, because it
violated his right of privacy for the news media to accompany the
officers in their search.
The district court agreed with Dr. Swate and granted
summary judgment denying immunity to Pack and granting partial
judgment on liability. All other officials and issues have been
resolved, and the only question on appeal is the district court’s
ruling against Pack.
As the parties are aware, the U.S. Supreme Court recently
held that law enforcement officers were entitled to qualified
immunity when they permitted the media to accompany them on the
search of a private residence, even though the search itself was
unconstitutional. Wilson v. Layne, 526 U.S. ____, S.Ct. _____
(1999). The search in Wilson occurred, like this one, in 1992.
While the court found that a constitutional violation had occurred,
it also held that the law was not “clearly established” at that
time that the search was unconstitutional. Since the scope of
qualified immunity depends upon public officials’ violating clearly
established legal rights, i.e. those rights which are plainly

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known, and no such plain law prohibited the media’s attendance on
searches of private homes, immunity was required.
The only material difference between this case and Wilson
is that the DEA searched Dr. Swate’s office, not his residence.
This factor, however, favors Officer Pack. For the Supreme Court
expressly footed Wilson on the long standing expectation of privacy
in a person’s dwelling. Whether similar expectations apply to a
place of business was not decided by the court. The court’s
holding that an accompanied search of a residence was not clearly
established in 1992 compels the holding in this case that the
accompanied search of business premises, even if unconstitutional,
could not have been clearly established then.
Because the constitutionality of the search in this case
was not clearly established, the DEA officer is entitled to
qualified immunity.
The factors on which Dr. Swate relies in attempting to
distinguish this case from Wilson are unpersuasive. Swate waived
the argument he now raises concerning the validity of the warrant;
in a district court, it was undisputed that Pack engaged in the
search pursuant to valid warrants. Further, Swate’s newly raised
contention concerning his expectation of privacy in
physical/patient records is irrelevant. Texas law does not furnish
the basis for determining the reasonableness of official conduct
under the Fourth Amendment. Davis v. Scherer, insert cite.
Finally, it is meaningless to assert that while the media who

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searched the Wilsons’ house did not publish pictures, they were
broadcast on national and local television of the search made here.
Because Wilson compels a finding of qualified immunity
for appellant Pack, the judgment of the district court denying
qualified immunity and granting partial summary judgment for Dr.
Swate is REVERSED.

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