Case: 12-11397    Date Filed: 02/05/2013   Page: 1 of 21

                                                                        [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-11397
                          ________________________

                      D.C. Docket No. 1:10-cv-23139-JAL

JANET FELICIANO,

                                                               Plaintiff-Appellee,

EDGARDO GONZAGA,

                                                                        Plaintiff,

                                      versus

CITY OF MIAMI BEACH,
a municipal entity,

                                                                        Defendant,

LT. ROBERT ACOSTA,
Miami Beach Police Lt., in his individual capacity,
DET. ANDREW DOHLER,
Miami Beach Police Det., in his individual capacity,
DET. DOUGLAS DOZIER,
Miami Beach Police Det., in his individual capacity,
SGT. JAMES NASH,
Miami Beach Police Sgt., in his individual capacity,

                                                          Defendants-Appellants.
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                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                     (February 5, 2013)

Before CARNES and COX, Circuit Judges, and RESTANI, * Judge.

CARNES, Circuit Judge:

       At early common law parties and others with an interest in the outcome of

litigation were deemed incompetent to testify and barred from the witness stand on

the ground that their interest made them unworthy of belief. 2 John H. Wigmore,

Evidence in Trials at Common Law §§ 575–77 (Chadbourn Rev. 1979). The idea

was similar to the one that H.L. Mencken expressed in another context when he

remarked, “It is hard to believe that a man is telling the truth when you know that

you would lie if you were in his place.” H.L. Mencken, A Little Book in C Major

22 (John Lane Co. 1916). Parties with an interest, it was presumed, would lie.

       That presumption and the rule of exclusion it supported were worn down by

criticism over time. See, e.g., 5 Jeremy Bentham, Rationale of Judicial Evidence

81 (Fred B. Rothman & Co. 1995) (1827) (describing the rule as “blind and

brainless”). As Logan Bleckley, one of Georgia’s greatest judges, explained more

than a century ago:

       *
         Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
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      Interest and truth may go together. Is there, in the world, an honest
      man who does not know that he can tell the truth against his interest?
      . . . Where there is impossible doubt as to the effect of villainy upon
      veracity, the jury ought to be left to decide it. As coming from the
      average of society, they know best what to think on such a question.
      Interest is a great rascal; but is not an absolute reprobate. Its doom is
      not perdition at all events. It has a chance of salvation. It is not
      obliged to commit perjury.

Davis v. Central R.R., 

, 333 (1878) (Bleckley, J.). Early in the last

century the Supreme Court could say that “what was once regarded as a sufficient

ground for excluding the testimony of [an interested witness] altogether has come

to be uniformly and more sensibly regarded as affecting the credit of the witness

only.” Funk v. United States, 

, 380, 

, 215 (1933). On

claims subject to trial by jury, issues about whether to credit the testimony of a

witness, interested or not, are for the jury. See Moughon v. State, 

, 106

(Ga. 1876) (Bleckley, J.) (“What shall come to the jury as evidence, is for the

court. What it is worth when it arrives, is for the jury. They can discern its true

value with spare assistance from the bench.”).

      Federal Rule of Civil Procedure 56 and countless decisions applying it

express the modern rule that a case should be put to the jury if there is any genuine

issue of material fact, including one created solely by the testimony of a party.

See, e.g., Strickland v. Norfolk S. Ry. Co., 

, 1160 (11th Cir. 2012);

Hulsey v. Pride Restaurants, LLC, 

, 1247 (11th Cir. 2004); Stewart

v. Booker T. Washington Ins., 

, 850 (11th Cir. 2000). Occasionally
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there is pushback against this rule, sometimes expressed in orders granting

summary judgment despite what is described as the non-movant’s

“unsubstantiated” or “uncorroborated” or non-objective testimony. At other times

we have seen summary judgment based on disapproval of a party’s testimony as

“conclusory” when it is not. There appears to have been some of that in this case,

although the district court did reach the right result anyway.

                                           I.

      Police officers Robert Acosta, Andrew Dohler, Douglas Dozier, and James

Nash appeal the district court’s denial of their motion for partial summary

judgment on Janet Feliciano’s 42 U.S.C. § 1983 unlawful search claim.

Feliciano’s claim alleges that those four officers violated her Fourth Amendment

rights when they conducted a warrantless entry into her home and searched it. The

district court denied the defendant officers qualified immunity on the claim,

reasoning that although their initial entry did not violate Feliciano’s clearly

established Fourth Amendment rights, they plainly exceeded constitutional bounds

when they searched, among other things, her underwear drawer and kitchen pantry.

The officers contend that the district court erred in denying them qualified

immunity because the scope of their search did not violate Feliciano’s clearly

established constitutional rights.




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      We review de novo a district court’s denial of summary judgment based on

qualified immunity, applying the same legal standards that governed the district

court. Edwards v. Shanley, 

, 1292 (11th Cir. 2012). Summary

judgment is appropriate when the record evidence, including depositions, sworn

declarations, and other materials, shows “that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a), (c). In conducting our review, “we are required to view the evidence

and all factual inferences therefrom in the light most favorable to the non-moving

party, and resolve all reasonable doubts about the facts in favor of the non-

movant.” Skop v. City of Atlanta, Ga., 

, 1143 (11th Cir. 2007)

(quotation marks omitted). Thus, “when conflicts arise between the facts

evidenced by the parties, we [must] credit the nonmoving party’s version.” Evans

v. Stephens, 

, 1278 (11th Cir. 2005) (en banc). Although the “facts,”

as accepted for purposes of summary judgment, may not be the actual facts of the

case, “our analysis . . . must begin with a description of the facts in the light most

favorable to the plaintiff” and our decision must accept those facts. Davis v.

Williams, 

, 763 (11th Cir. 2006).

                                           II.

      Aside from the time, place, and persons involved in the incident giving rise

to this case, the parties’ accounts of the material events differ. At this stage of the

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proceedings we are required to credit Feliciano’s version if there is any evidence to

support it, and it is that version we set out here.

       In August 2006, the Miami Beach Police Department received a confidential

tip from one of Feliciano’s neighbors. According to that tip, a couple living at

Feliciano’s apartment were possibly drug dealers and had three small children in

the household. 1 Responding to that tip, narcotics officers Acosta, Dohler, Dozier,

and Nash went to Feliciano’s apartment at around 9:00 p.m. on September 2, 2006,

to investigate. Feliciano, who was five to eight weeks pregnant at the time, was

inside the apartment with her domestic partner, Edgardo Gonzaga, and their three

children, aged 7, 6, and 4. Feliciano’s eldest son answered the officers’ knock on

the door by opening it a little. When Feliciano came to the doorway, the officers

identified themselves, informed her that they had received an “anonymous” tip that

drugs were being sold out of her apartment, and asked if they could come inside


       1
           The signed letter submitted to the police stated:
            As a neighbor on Crespi Blvd., I am concerned about the following situation. There is
            a lot of activity (drugs?) that occurs in the section 8 housing unit at 8235 Crespi Blvd.,
            Miami Beach, I believe #1(?) (the apartment closest to the street). I believe the female
            living there, along with her husband, are active drug dealers. People come and go at
            all hours of day and night, and there are many loud disputes and fights. Neighbors are
            scared of them. With the three small children in the household, it is especially
            dangerous for the welfare of not only those children, but others on this block.
         Feliciano filed a motion in the district court to exclude the allegations in the neighbor’s
tip because the officers failed to timely disclose its existence under Fed. R. Civ. P. 26(a).
Although the district court has yet to formally rule on Feliciano’s motion, it implicitly overruled
her request for purposes of summary judgment by considering the contents of the neighbor’s tip
in its decision. We need not decide whether the district court abused its discretion in doing so
because the contents of the tip do not affect the result of this appeal. See infra pp. 19–20.
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and search it. Feliciano disputed the accuracy of the tip and told the officers that

they could not come inside without a search warrant. Officer Dohler replied that

the officers didn’t need a search warrant because Feliciano had a religious candle

burning in her window, which presented a fire hazard justifying the removal of her

children from the home. (The officers have not repeated that assertion since then.)

      Around this time, Gonzaga came walking out of the back bedroom where he

had been watching television. When the officers spotted him, they pushed their

way through the door and rushed into the apartment. Acosta grabbed Feliciano’s

neck, forced her towards the living room couch, held her arms behind her back,

and began repeatedly slamming her stomach into the wooden side arm of the

couch. Although Feliciano begged Acosta to stop because she was asthmatic,

pregnant, and didn’t want any harm to come to her unborn child, Acosta ignored

her pleas and continued to ram her stomach into the arm of the couch. Officer

Nash, who was standing beside Acosta and Feliciano, did not intervene.

      While Acosta was restraining Feliciano, Dohler and Dozier grabbed

Gonzaga by the neck and, when Feliciano’s eldest son ran near, one of the officers

grabbed the child by the shoulder and threw him against the wall. Following a

brief struggle, Dohler and Dozier handcuffed Gonzaga. Acosta then allowed

Feliciano to sit on the couch and comfort her three children. Without the consent

of either Feliciano or Gonzaga, Acosta, Dohler, and Dozier proceeded to search the

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residence, rifling through Feliciano’s underwear drawer in her bedroom, the

medicine cabinet in the bathroom, and the cabinets and pantry in the kitchen. One

of the officers eventually emerged from the kitchen holding what he claimed was a

half of a marijuana joint that he claimed to have discovered. Gonzaga remarked

“that’s not my weed,” but was soon escorted out of the apartment on misdemeanor

charges of resisting arrest without violence, possession of cannabis, and possession

of drug paraphernalia. After the officers left, Feliciano experienced stomach

cramping and vaginal bleeding. She went to the emergency room the next day and

learned that she had suffered a miscarriage.

      In his arrest report, completed after the incident, Acosta stated that the

officers noticed the smell of marijuana emanating from Feliciano’s apartment after

she opened the door and as they were explaining to her the reason they were there.

The report also indicated that Gonzaga was “smoking a joint” as he emerged from

the bedroom, tried to conceal the joint as soon as he saw the officers standing

outside, and then dropped it and attempted to run out of the apartment. The

officers reportedly recovered the joint and also found a small amount of cannabis

and rolling papers in Gonzaga’s pocket during a search incident to arrest. Acosta

indicated in his report, however, that it was unknown whether Gonzaga was under

the influence of drugs.




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      Gonzaga was formally charged with resisting arrest, possession of

marijuana, and possession of drug paraphernalia, but the charges were later

dismissed because no officer appeared in court. The alleged marijuana that the

officers claimed to have seized at the apartment was never tested and has since

been destroyed.

                                          III.

      Feliciano filed a fifteen-count amended complaint against the City of Miami

Beach and the four officers in their individual capacities, asserting numerous

constitutional claims for excessive force and unlawful search and seizure, as well

as several state-law tort claims. In Count Six of the complaint, which is the only

claim at issue in this appeal, Feliciano alleged that the officers violated her Fourth

Amendment rights when they entered her home without a warrant and searched the

premises. The officers moved for partial summary judgment on a number of the

claims, including the one asserted in Count Six. They maintained that they were

entitled to qualified immunity on that claim because the warrantless entry and

resulting search of Feliciano’s apartment were justified by probable cause and the

presence of exigent circumstances—namely, the need to prevent the destruction of

drug evidence and to otherwise ensure that there were no drugs “within the plain

grasp” of Feliciano’s children. Officer Nash also maintained that he was entitled




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to qualified immunity because he did not personally participate in the search of

Feliciano’s bedroom, bathroom, or kitchen.

      The officers based their defense of qualified immunity, in large measure, on

Acosta’s arrest report and his deposition testimony. During his deposition, Acosta

testified, in relevant part, that he smelled marijuana emanating from Feliciano’s

apartment when the officers first approached the residence and before they

knocked on the door. Acosta also testified that he saw Gonzaga smoking a joint as

he walked out of the bedroom “with slits for eyes,” and that Gonzaga attempted to

conceal the joint by lowering his right hand and hiding it in his palm. Feliciano, in

both her deposition testimony and sworn declaration, adamantly disputed the

officers’ account, testifying that Gonzaga had nothing in his hands when he

emerged from the bedroom, that neither she nor Gonzaga was smoking marijuana,

and that there was no marijuana smell in the apartment when the officers arrived.

She also testified that there was no marijuana in her apartment before the officers

arrived and began their search. Gonzaga was not deposed.

      The district court rejected the officers’ claims for qualified immunity, but

solely on the ground that the scope of their search, particularly of the underwear

drawer and kitchen pantry, violated Feliciano’s clearly established Fourth

Amendment rights because it plainly exceeded constitutional bounds, including the




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demands of any apparent exigency. 2 The court concluded that the officers did not

violate clearly established law when they entered Feliciano’s apartment without a

warrant. Its reasoning was that the officers had arguable probable cause and faced

arguable exigent circumstances given the “effectively undisputed evidence” that

they smelled marijuana coming from the apartment and saw Gonzaga holding a

joint. Although the court acknowledged Feliciano’s testimony to the contrary, it

found that her “bare assertions” were insufficient to create a genuine issue of fact

about the officers’ observations because her testimony was “conclusory” and

unsupported by any objective evidence. Accepting the officers’ assertions that

they smelled and saw marijuana, the district court found that arguable probable

cause and arguable exigent circumstances justified their immediate entry into

Feliciano’s home, without her consent, in order to arrest Gonzaga and to prevent

the possible destruction of drug evidence.

                                               IV.

       The officers contend that, while the district court correctly concluded that

arguable probable cause and arguable exigent circumstances justified their

warrantless entry into Feliciano’s home, the court erred in concluding that they

exceeded the scope of a permissible search by looking through her underwear


       2
          The district court did not address Nash’s contention that he was entitled to qualified
immunity because he did not personally participate in the search of Feliciano’s apartment. See
infra p. 20.
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drawer and pantry. They argue that the entry and search of Feliciano’s apartment

was supported not just by arguable probable cause but also by actual probable

cause given the “undisputed” evidence that they had received a tip from a neighbor

that the couple residing in Feliciano’s apartment was selling drugs; they smelled

marijuana when they approached the apartment; when the door was opened, they

observed Gonzaga coming out of the bedroom with a joint that he attempted to

conceal; and they found marijuana and rolling papers on him during a search

incident to arrest. On the specific issue of exigent circumstances, the officers

argue that once they saw Gonzaga with the marijuana joint they were justified in

searching the apartment, including in drawers and cabinets, for additional drugs

because they reasonably believed that Feliciano would attempt to destroy any

remaining drug evidence and they were also otherwise concerned that there might

be readily accessible drugs that posed a risk to the safety of the children. 3


       3
          Feliciano maintains that we lack jurisdiction over this interlocutory appeal because the
officers’ challenge to the denial of qualified immunity centers on a number of disputed issues of
material fact, including whether they actually smelled marijuana coming from the apartment, saw
Gonzaga holding a joint, or found marijuana that was already in her home before their arrival.
Although we do lack interlocutory jurisdiction under 28 U.S.C. § 1291 when the only issues
appealed in a qualified immunity case are evidentiary issues about which facts a party may, or
may not, be able to prove at trial, we have jurisdiction where the district court’s denial of
qualified immunity is based, even in part, on a question of law. Crenshaw v. Lister, 

, 1288–89 (11th Cir. 2009); Cottrell v. Caldwell, 

, 1484–85 (11th Cir. 1996).
And that includes the district court’s determination in this case that the officers were not entitled
to qualified immunity under a given set of facts. See 

–85. Moreover, in
the course of deciding such an interlocutory appeal, we may resolve any factual issues that are
“part and parcel” of the core legal issues. 

The requirement that the evidence be
viewed in the light most favorable to the plaintiff can itself create an issue of law. 

n.3. We do have jurisdiction over this appeal.
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                                         A.

      The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. Amend. IV. The “chief evil” against which the Fourth

Amendment is directed is a government agent’s warrantless entry into a person’s

home. Payton v. New York, 

, 585, 

, 1379 (1980). A

warrantless and nonconsensual entry into a person’s home, and any resulting

search or seizure, violates the Fourth Amendment unless it is supported by both

probable cause and exigent circumstances. See 

100 S.Ct. at 1381–

82; United States v. Tovar-Rico, 

, 1534–35 (11th Cir. 1995); United

States v. Tobin, 

, 1510 (11th Cir. 1991) (en banc).

      Probable cause to arrest exists when the facts and circumstances within an

officer’s knowledge are “sufficient to warrant a reasonable belief that the suspect

had committed or was committing a crime,” 

, while

probable cause to search requires a “fair probability that contraband or evidence of

a crime will be found in a particular place,” 

(quotation

marks omitted). Exigent circumstances, in turn, arise when “the inevitable delay

incident to obtaining a warrant must give way to an urgent need for immediate

action.” United States v. Burgos, 

, 1526 (11th Cir. 1983). We have

held that the “presence of contraband without more does not give rise to exigent

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circumstances,” though an exigent circumstance may arise “when there is danger

that the evidence will be destroyed or removed.” 

(quotation marks omitted). The exigency question is whether the facts would lead

an objectively “reasonable, experienced agent to believe that evidence might be

destroyed before a warrant could be secured.” 

omitted).

       Nevertheless, in cases involving arrests or warrantless searches or seizures,

law enforcement officers are entitled to qualified immunity if they had even

arguable probable cause.4 See Swint v. City of Wadley, Ala., 

, 996

(11th Cir. 1995); Eubanks v. Gerwen, 

, 1160 (11th Cir. 1994).

Arguable probable cause exists if “reasonable officers in the same circumstances

and possessing the same knowledge as the Defendants could have believed that

probable cause existed.” 

(quotation marks omitted).

                                              B.

       We agree with the district court’s ultimate conclusion that the officers are

not entitled to summary judgment on Feliciano’s Fourth Amendment claim on the

basis of qualified immunity, though not for the same reasons articulated by the

district court. See Parks v. City of Warner Robins, Ga., 

, 613 (11th



       4
         The initial inquiry in a qualified immunity case is whether the government officials
being sued were “acting within the scope of [their] discretionary authority when the allegedly
wrongful acts occurred.” Lee v. Ferraro, 

, 1194 (11th Cir. 2002) (quotation marks
omitted). Here, there is no dispute that the defendants were acting within their discretionary
authority when they entered and searched Feliciano’s residence.
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Cir. 1995) (“[W]e may affirm the district court’s [summary judgment] decision on

any adequate ground, even if it is other than the one on which the court actually

relied.”). Instead, we conclude that, given the facts as we must view them for

purposes of summary judgment, the officers lacked even arguable probable cause

or exigent circumstances justifying their entry into Feliciano’s apartment without a

warrant or her consent.5

       In concluding that the warrantless entry of Feliciano’s apartment did not

violate her clearly established Fourth Amendment rights, the district court

improperly discounted her sworn statements about what the officers could have

observed before they entered the apartment, failed to construe the facts in the light

most favorable to her, and impermissibly credited the officers’ assertions that they


       5
          The officers contend that we lack jurisdiction to consider whether the initial entry into
Feliciano’s apartment was unconstitutional because the district court resolved that specific issue
in their favor and they have not raised that issue in their notice of appeal or initial brief. They
are wrong about that. Under Fed. R. App. P. 3(c)(1)(b), we have jurisdiction to review any
judgments, orders, or parts thereof that are designated in a notice of appeal. See Fed. R. App. P.
3(c)(1)(b); White v. State Farm Fire and Cas. Co., 

, 863–64 (11th Cir. 2011). The
officers’ notice of appeal expressly designates the denial of summary judgment “on the 42
U.S.C. § 1983 unlawful search claim in Count 6 of the Second Amended Complaint.” In Count
6, Feliciano claimed that both the initial entry and search of her apartment violated the Fourth
Amendment.
         Moreover, on de novo review of a summary judgment ruling, we may not only affirm on
any ground supported by the record, see 

, but may also choose to disregard
a district court’s determination of the facts for summary judgment purposes and determine those
facts ourselves, see 

(noting that, “[i]n exercising our interlocutory
review jurisdiction in qualified immunity cases,” we may either “accept the district court’s
[factual] findings, if they are adequate,” or “make our own determination of the facts”).
Although the officers understandably do not challenge the district court’s ruling in their favor
concerning the initial entry, they do contend, as their position requires them to do, that the ruling
was correct.
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noticed the smell of marijuana coming from the apartment and saw Gonzaga

smoking or holding a joint. When considering a motion for summary judgment,

including one asserting qualified immunity, “courts must construe the facts and

draw all inferences in the light most favorable to the nonmoving party and when

conflicts arise between the facts evidenced by the parties, [they must] credit the

nonmoving party’s version.” 

(quotation marks and

emphasis omitted). Even if a district court “believes that the evidence presented by

one side is of doubtful veracity, it is not proper to grant summary judgment on the

basis of credibility choices.” Miller v. Harget, 

, 1256 (11th Cir.

2006). This is because credibility determinations and the weighing of evidence

“are jury functions, not those of a judge.” Anderson v. Liberty Lobby, Inc., 

, 255, 

, 2513 (1986).

      Despite those fundamental precepts, the district court accepted “as

uncontroverted” and “effectively undisputed” the officers’ assertions that before

entering the apartment they smelled marijuana and saw a joint in Gonzaga’s hand,

and the court dismissed Feliciano’s testimony directly to the contrary as “bare,”

“conclusory,” and unsupported by objective evidence. The court based its ruling

on our statement in Kingsland v. City of Miami, 

, 1227 n.8 (11th

Cir. 2004), that “a court need not entertain conclusory and unsubstantiated




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allegations of fabrication of evidence.”6 See also Cooper v. Southern Co., 

, 745 (11th Cir. 2004) (holding that summary judgment was appropriate

where the plaintiff relied on conclusory assertions that were based entirely on her

own subjective beliefs), overruled on other grounds, Ash v. Tyson Foods, Inc., 

, 457–58, 

, 1197–98 (2006); 

(holding that “bare and self-serving” allegations that are not based on personal

knowledge are inadequate to survive summary judgment).

       But Feliciano’s sworn statements that Gonzaga was not holding anything in

his hands when he emerged from the bedroom into the officers’ view, that neither

she nor Gonzaga was smoking marijuana, and that there was no marijuana odor in

the apartment are not conclusory. They are non-conclusory descriptions of

specific, discrete facts of the who, what, when, and where variety. They describe

the external world as Feliciano observed it at the time and are based on her first-

hand personal knowledge, not her subjective beliefs. And they directly contradict

the officers’ assertions about what they observed before and after they entered the

apartment. The contradiction presents a classic swearing match, which is the stuff

of which jury trials are made.

       6
          Kingsland actually reversed a grant of qualified immunity to officers on a Fourth
Amendment claim for false arrest, which makes the quoted statement dicta, though we do not
dispute the correctness of that statement. See 

–34; see also United
States v. Kaley, 

, 1253 n.10 (11th Cir. 2009) (explaining that dicta includes “those
portions of an opinion that are not necessary to deciding the case then before us,” while the
holding of a case is “comprised both of the result of the case and those portions of the opinion
necessary to that result”) (quotation marks omitted).
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      To be sure, Feliciano’s sworn statements are self-serving, but that alone does

not permit us to disregard them at the summary judgment stage. As we stated in

Price v. Time, Inc., 

, 1345 (11th Cir. 2005), “[c]ourts routinely and

properly deny summary judgment on the basis of a party’s sworn testimony even

though it is self-serving.” Or as Justice Bleckley put it, the law allows that

“[i]nterest and truth may go together.” 

. Besides, Feliciano’s

sworn statements are no more conclusory, self-serving, or unsubstantiated by

objective evidence than the officers’ assertions that they smelled marijuana coming

from her apartment and saw Gonzaga smoking or holding a joint. While it is

undisputed that Gonzaga was arrested and charged with possession of marijuana,

those charges were dismissed after none of the officers appeared in court, and there

is no physical evidence, at least none that survives, to show that marijuana was

present in Feliciano’s apartment. The substance that the officers purportedly

seized was never tested and has long since been destroyed. And Feliciano’s

interest in obtaining a judgment against the officers is not different in kind from

their interest in preventing her from doing that.

      The officers fault Feliciano for failing to explain how she could see what

Gonzaga was holding in his hands (or not holding in his hands according to her)

because, they say, she was facing and speaking to them at the time. As a general

principle, a plaintiff’s testimony cannot be discounted on summary judgment

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unless it is blatantly contradicted by the record, blatantly inconsistent, or incredible

as a matter of law, meaning that it relates to facts that could not have possibly been

observed or events that are contrary to the laws of nature. See Scott v. Harris, 

, 380–81, 

, 1776 (2007) (holding that a court should not

adopt a party’s version of the facts when it is “blatantly contradicted by the record”

in the form of videotaped evidence); Holley Equip. Co. v. Credit Alliance Corp.,

, 1537 (11th Cir. 1987) (concluding that a plaintiff’s testimony could

not be disregarded on summary judgment because the discrepancies in that

testimony were not “incredible as a matter of law” or “blatantly inconsistent”);

United States v. Flores, 

, 1263 (11th Cir. 2009) (noting that

testimony is only incredible as a matter of law “if it relates to facts that the witness

could not have possibly observed or events that could not have occurred under the

laws of nature”) (quotation marks omitted). There is nothing in the record in this

case to rule out the possibility that Feliciano turned her head or body, momentarily,

to look at Gonzaga as he walked out of the bedroom. The officers imply that she

did not, but Feliciano’s testimony implies that she did.

      In affirming the grant of summary judgment against the officers, we have

not forgotten about the tip supplied by the neighbor, which brought the officers to

the apartment to begin with. Whether an informant’s tip can give rise to probable

cause or arguable probable cause depends on the totality of the circumstances,

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particularly the informant’s veracity, reliability, and basis of knowledge, as well as

any independent corroboration of the details of the tip. Ortega v. Christian, 

, 1525 (11th Cir. 1996). We need not go into all of that because the

officers conceded at oral argument that the tip alone was not enough to justify their

entry into the apartment or their search inside it, and we accept that concession for

purposes of this case.

      Nor have we forgotten Nash’s argument that he is entitled to summary

judgment because he did not personally participate in the search once inside the

apartment. Part of Feliciano’s claim, however, is that the officers, including Nash,

“forcibly entered and invaded [her] home” in violation of her Fourth Amendment

rights. The evidence, viewed in the light most favorable to Feliciano, shows that

Nash, as well as the other officers, did that. See Kirk v. Louisiana, 

,

638, 

, 2459 (2002) (emphasizing that “the Fourth Amendment has

drawn a firm line at the entrance to the house,” such that “police officers need

either a warrant or probable cause plus exigent circumstances in order to make a

lawful entry into a home”) (quotation marks omitted). We affirm the denial of

summary judgment to Nash as well as to the other officers.




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             Case: 12-11397    Date Filed: 02/05/2013   Page: 21 of 21

                                        V.

       For these reasons, we affirm the district court’s denial of summary judgment

on the basis of qualified immunity, albeit for reasons other than those upon which

it relied.

       AFFIRMED.




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