Katelyn Ebner, et al. v. Cobb County, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11318
____________________
KATELYN EBNER,
PRINCESS MBAMARA,
AYOKUNLE ORIYOMI,
BRITTANY PENWELL,
Plaintiffs-Appellants,
versus
COBB COUNTY,
through its instrumentality the Cobb County Police Department,
TRACY CARROLL,
in his individual capacity,
a.k.a.as T.T. Carroll,
Defendants-Appellees.
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2 Opinion of the Court 20-11318
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cv-03722-MLB
____________________
Before WILLIAM PRYOR , Chief Judge, G RANT, and H ULL , Circuit
Judges.
PER CURIAM:
Katelyn Ebner, Princess Mbamara, Brittany Penwell, and
Ayokunle Oriyomi were four drivers who were arrested in Cobb
County, Georgia, on different occasions by the same police officer
for driving under the influence of cannabis. The drivers sued the
county for violating their rights to be free from unreasonable
searches and seizures under the Fourth and Fourteenth Amend-
ments because the officer based his probable-cause determinations
on unreliable eye examinations.
See 42 U.S.C. § 1983;
Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). The district court
granted the county summary judgment because it found that there
was no underlying constitutional violation. After
de novo review,
see Kingsland v. City of Miami, 382 F.3d 1220, 1225 (11th Cir. 2004),
we affirm.
On each occasion, the drivers failed to maintain their lane
and then performed poorly on eye examinations and other field so-
briety tests the officer was trained by the county to perform. As a
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20-11318 Opinion of the Court 3
result, the officer concluded that he had probable cause to believe
that the drivers committed an offense and arrested them for driving
under the influence of cannabis.
See GA . C ODE . ANN. § 40-6-
391(a)(2). Each driver’s blood was drawn under Georgia’s implied
consent law,
see id. § 40-5-67.1, each driver was detained in jail, and
each driver was charged with driving under the influence of canna-
bis,
id. § 40-6-391(a)(2), and failure to maintain a lane,
id. § 40-6-48.
Prosecutors later dismissed the charges for driving under the influ-
ence of cannabis after the blood examinations returned negative
results for cannabis ingestion.
The drivers argue that the county violated their rights be-
cause the blood draws, their detentions, and the prosecutions
against them were not based on probable cause. The drivers base
their argument on “expert testimony about the untrustworthiness
of the six eye examinations undisputedly conducted on the Plain-
tiffs.” And the drivers argue that the county is liable because the
county, “under color of [its] official policy” of training officers to
use the unreliable eye examinations, “cause[d] [the officer] to vio-
late [their] constitutional rights.”
Monell, 436 U.S. at 692 (internal
quotation marks omitted).
We disagree. Each of the drivers’ claims fails because there
was other, independent evidence in each incident from which “a
reasonable officer could conclude . . . that there was a substantial
chance,”
District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018)
(internal quotation marks omitted), that each driver was under the
influence of cannabis in violation of Georgia law,
see G A . CODE .
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4 Opinion of the Court 20-11318
ANN. § 40-6-391(a)(2). Without considering the results of the dis-
puted eye examinations, the officer knew that each driver failed to
maintain their lane and that each driver displayed numerous clues
of impairment from the non-eye-related field sobriety examina-
tions. The clues of impairment ranged from turning incorrectly,
missing heel-to-toe, taking an incorrect number of steps, walking
off the line, and raising arms for balance. The drivers concede that
“[t]he results of those remaining tests for each Plaintiff were
mixed.” Based on these facts alone, “a reasonable officer could con-
clude . . . that there was a substantial chance” that the individuals
were driving under the influence of cannabis.
See Wesby, 138 S. Ct.
at 588 (internal quotation marks omitted). Because the drivers
“ha[ve] failed to establish that [their] constitutional rights were vi-
olated, [they] ha[ve] necessarily failed to establish the C[ounty]’s
liability.”
Miller v. Harget, 458 F.3d 1251, 1261 (11th Cir. 2006).
In their reply brief, the drivers respond to this reasoning by
citing the testimony of another expert that questioned the validity
of the non-eye-related field sobriety tests “because they have never
been studied for th[e] purpose” of detecting cannabis impairment
and “it’s really up in the air as to what the results of each individual
test should mean to an officer as to [whether there is] probable
cause.” But the expert conceded that the tests reliably suggest driv-
ing under the influence of alcohol. Counsel for the drivers repeated
this point at oral argument.
Any challenge to the inherent unreliability of the non-eye-
related field sobriety tests was forfeited because the drivers “fail[ed]
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20-11318 Opinion of the Court 5
to list or otherwise state it as an issue on appeal.”
Hamilton v.
Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012).
The drivers made only “passing references” to the other expert’s
testimony in their opening brief and did not “devot[e] a discrete
section of [their] argument to” the alleged unreliability of the other
field sobriety tests.
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 681 (11th Cir. 2014). The drivers’ only argument for municipal
liability in their initial brief was that “a reasonable juror could find
that [the county] trained officers . . . on how to perform the
six eye
examinations that were specifically criticized by [the drivers’ ex-
pert] and were undisputedly performed on Plaintiffs in this case.”
(Emphasis added.)
In any event, the attack on the field sobriety tests is unavail-
ing because the expert’s testimony supports only the proposition
that the tests’ ability to detect cannabis impairment has “never
been studied.” That assertion fails to support the claim that the field
sobriety tests are not “reasonably trustworthy.”
See Safford Unified
School Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009).
Before concluding, we must raise a concern about a false
representation that counsel for the drivers made to the Court at
oral argument where the following exchange took place:
The Court: But didn’t the expert say that for a lack of
convergence, bloodshot eyes, eyelid tremors, pupil
dilation, and . . . nystagmus, each was associated with
cannabis use?
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6 Opinion of the Court 20-11318
Counsel: No, our first expert . . . says that each of
those things . . . do not reliably indicate the presence
of drugs.
Counsel’s representation to the Court was false. The Court cor-
rectly recounted that the expert report stated that, “[i]n regard to
convergence, cannabis may indeed impair convergence”; “[i]n re-
gard to pupillary size and abnormalities, cannabis may indeed af-
fect pupillary size and function”; and “[i]n regard to eyelid tremors
and conjunctival injection[,] . . . cannabis may indeed cause eyelid
tremors and or conjunctival injection.” The expert went on to state
that there are other possible causes of these symptoms, and that
the eye examinations are “unable to distinguish between” a “can-
nabis origin or other drug origin or other non-drug origin.”
The Court later gave counsel an opportunity to correct his
erroneous response to the Court’s question. After expressing
“hope” that the Court “misheard” counsel, the Court quoted the
above excerpts from the report verbatim. Instead of expressly cor-
recting his earlier error, counsel once again failed to admit that the
report included the quoted information. Counsel merely reiterated
the separate point that the report also included a conclusion that
the symptoms are not “a reliable sign of the presence of drugs.”
We admonish counsel to take care that all representations
to the Court are accurate, especially when, as in this appeal, the
representation concerned a material fact. If—as the drivers’ expert
reported—these symptoms can be caused by cannabis, then their
presence is relevant evidence because it “has [some] tendency to
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20-11318 Opinion of the Court 7
make” the hypothesis that the drivers ingested cannabis
“more . . . probable than it would be without the evidence,” F ED.
R. EVID. 401(a), even if those symptoms are compatible with other
causes. And probable cause does not require that officers have
enough evidence to make a correct medical diagnosis or that they
investigate and rule out all other possible innocent causes of suspi-
cious facts.
See Wesby, 138 S. Ct. at 588.
We AFFIRM the judgment in favor of the County.
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