Page 31 - May June 2020 TPA Journal

Forbes under arrest; and (2) violated the Fourth bar.” The Supreme Court has explained that
and Fourteenth Amendment when he made false “[b]ecause probable cause deals with probabilities
representations to secure the blood-draw warrant. and depends on the totality of the circumstances, .
We review a district court’s summary-judgment . . it is a fluid concept that is not readily, or even
decision de novo, applying the same standards as usefully, reduced to a neat set of legal rules.” As
the district court. Summary judgment must be long as “the officer was aware of facts justifying a
granted when “the movant shows that there is no reasonable belief that an offense was being
genuine dispute as to any material fact, and the committed, whether or not the officer charged the
movant is entitled to judgment as a matter of law.” arrestee with that specific offense,” the probable-
A dispute is genuine if the evidence is sufficient cause standard is satisfied, and the arrest is
for a reasonable jury to return a verdict for the permissible.
nonmovant. And a fact is material if its resolution
could affect the outcome of the action. Here, Deputy Paige claims that he had probable
cause for the arrest because Forbes (1) was
At this stage, we review all facts and draw all swerving within his lane, (2) accelerated
reasonable inferences in the light most favorable haphazardly to over 100 miles per hour, (3)
to Forbes, the nonmoving party. In cases such as smelled faintly of alcohol, (4) slurred his speech,
this one, however, when the burden of proof at (5) had “pretty much” been at a restaurant until
trial ultimately rests on the nonmovant, the 2:00 a.m., (6) appeared to have glossy, red eyes,
moving party “must merely demonstrate an and (7) refused to answer how many drinks he had
absence of evidentiary support in the record for consumed, instead holding his hands out as if
the nonmovant’s case,” while the nonmovant yielding to being handcuffed.
“must come forward with specific facts showing
that there is a genuine issue for trial.” Id. (internal Forbes contends that he has raised a genuine
quotations omitted). We are “not required to dispute of material fact as to probable cause
accept the nonmovant’s conclusory allegations, because he (1) did not smell of alcohol, (2) was
speculation, and unsubstantiated assertions which not slurring his speech, and (3) did not have
are either entirely unsupported, or supported by a glossy, red eyes. And he insists that, without these
mere scintilla of evidence.” And ultimately, we facts, no reasonable officer could have found
may “affirm a grant of summary judgment on any probable cause to execute an arrest for driving
grounds supported by the record and presented to while intoxicated.
the district court.”
First, we disregard Forbes’s claim on appeal that
Deputy Paige did not violate Forbes’s Fourth he did not have glossy, red eyes as it contradicts
Amendments rights when he arrested him without his sworn deposition testimony, in which Forbes
a warrant.4 A warrantless arrest violates a agreed his eyes were red but blamed the redness
suspect’s Fourth Amendment rights “if the on either his allergies or the late hour. As for the
arresting officer lacks probable cause to believe other two facts, even assuming, without deciding,
that the suspect has committed a crime.” Probable that Forbes raised a genuine factual dispute
cause exists when the facts and circumstances regarding whether he smelled of alcohol or slurred
within the officer’s knowledge “are sufficient to his words, the dispute is not “material” as its
warrant a prudent person, or one of reasonable resolution cannot affect the outcome of the action.
caution, in believing, in the circumstances shown, Deputy Paige still had probable cause to arrest
that the suspect has committed, is committing, or Forbes for driving while intoxicated. Deputy
is about to commit an offense.” This “is not a high

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