Page 49 - TPA Journal May June 2025
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find it undisputed that Delgado had reasonable probable cause affidavit prevent qualified immu-
suspicion for the stop. nity. But these alleged false statements are all
Second, during the stop, Delgado developed prob- immaterial. Like the alleged errors in the test
able cause to arrest McClain. “A warrantless administration and McClain’s arguments about
arrest is reasonable if the officer has probable Delgado’s credibility, the contents of the probable
causeto believe that a criminal offense has been cause affidavit do not “affect the outcome of the
committed.” This standard “is not a high bar” and suit under the governing law.”
“requires only a probability or substantial chance Because it is undisputed that Delgado had reason-
of criminal activity, not an actual showing of such able suspicion to stop McClain and probable cause
activity.” Here, McClain must prove that no rea- to arrest him, there is no violation of his constitu-
sonable officer could have believed that Delgado tional rights. Thus, McClain has not carried his
had probable cause for his arrest. He is unable to burden to overcome Delgado’s assertion of quali-
do so. fied immunity by establishing a genuine dispute of
Delgado observed all six possible clues on the material fact.
HGN test and two of eight possible clues on the Accordingly, we reverse the district court’s denial
walk-and-turn test. Record evidence from the of Delgado’s motion for summary judgment.
National Highway Traffic Safety
Administration—and a concession from McClain v. Delgado, 5 th Cir., No. 23-50879,
McClain’s counsel at oral argument that the tests Mar. 20, 2025.
have a high accuracy rate for alcohol impair- ****************************************
ment—shows that the clues observed by Delgado *************************
would indicate with a high likelihood that
McClain was under the influence of alcohol. *
McClain does not dispute that his performance on EVIDENCE – Deadly weapon.
the HGN and walk-and-turn tests would support
probable cause. And it is undisputed that Trooper Can a pocketknife be a deadly weapon? For pre-
McKay confirmed Delgado’s results on the HGN sent purpose, a “deadly weapon” is “anything that
test. in the manner of its use or intended use is capable
Instead of challenging that McClain’s perfor- of causing death or serious bodily injury.” TEX.
mance on the tests would create probable cause or PENAL CODE § 1.07(a)(17)(B). The court of
that McKay confirmed Delgado’s results, appeals in this case found that, “[e]ven when
McClain(and the dissent) raises multiple immate- viewed in the light most favorable to the verdict,
rial fact disputes. McClain relies on an expert nothing in the State’s evidence sufficiently sup-
report alleging errors in the performance of the port[ed] either a direct or inferential conclusion
test. But this assertion does not create a factual that the manner of [Appellant’s] use or intended
dispute sufficient to deny summary judgment. use of the pocketknife made it capable of causing
Officers may rely on reasonable mistakes of fact death or serious bodily injury.”
and still receive qualified immunity. And At about 6:00 a.m. on January 10, 2022, Appellant
McClain’s expert does not conclude that no rea- was observed in a Buc-ee’s convenience store, in
sonable officer could have found anything other Terrell, completely filling up a Buc-ee’s soft-side
than sobriety. McClain also raises a challenge to cooler with, among other things, dozens of ciga-
Delgado’s credibility as an officer withevidence rette packs. When he left the store without paying
of two of Delgado’s previously-dismissed arrests. for either the cigarettes and other items, or for the
But this argument ignores that McKay confirmed cooler, an employee, Delbert DeWayne Parks, fol-
Delgado’s findings. And finally, McClain argues lowed him outside and requested that he return the
that potentially false statements in Delgado’s merchandise. Appellant replied, “Just let me go.”
May-June 2025 www.texaspoliceassociation.com • (512) 458-3140 45
