[DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-14265                ELEVENTH CIRCUIT
                                                        SEPTEMBER 30, 2010
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________
                                                              CLERK

                  D. C. Docket No. 06-60322-CV-WPD

DWAYNE SHEPARD,


                                                         Plaintiff-Appellant,

                                 versus

HALLANDALE BEACH POLICE DEPARTMENT,
GEORGE DAVIS,
JASON BUDNICK,
CITY OF HALLANDALE BEACH,


                                                      Defendants-Appellees.


                      ________________________

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

                          (September 30, 2010)

Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:

      After a bench trial in this 42 U.S.C. § 1983 action, Dwayne Shepard pro se

appeals the district court’s judgment in favor of the defendant Officer Jason

Budnick. Based on the facts it found at trial, the district court concluded that

Officer Budnick was entitled to qualified immunity. After review, we affirm.

                                I. BACKGROUND

A.    Pretrial Proceedings

      On August 5, 2002, Officer George Davis of the Hallandale Beach Police

Department entered Plaintiff Shepard’s apartment and arrested him without a

warrant. The defendant, Officer Budnick, was on uniformed patrol duty in the

area of Shepard’s apartment and acted as Officer Davis’s backup during the arrest.

      Shepard’s pro se § 1983 complaint alleged that the officers’ warrantless

entry to effectuate his arrest violated his constitutional rights. The complaint

sought money damages and release from prison and named as defendants Officers

Davis and Budnick, the City of Hallandale Beach and the Hallandale Beach Police

Department. The district court dismissed Shepard’s claims against the City of

Hallandale Beach, the Hallandale Beach Police Department and Officer Davis and

also dismissed Shepard’s claim for release from prison, leaving only Shepard’s

money damages claim against Officer Budnick. Later, the district court dismissed

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the claim against Officer Budnick on qualified immunity grounds. On appeal, this

Court vacated the district court’s dismissal order as to Officer Budnick and

remanded for further proceedings. See Shepard v. Davis, 300 F. App’x 832 (11th

Cir. 2008).

      On remand, the district court denied Officer Budnick’s motion for summary

judgment. The district court concluded that Plaintiff Shepard’s and Defendant

Budnick’s contradictory deposition testimony as to Budnick’s role in the arrest

created a genuine issue of material fact.

B.    Documents Introduced in Bench Trial

      At the bench trial, the parties stipulated to the introduction of (1) a

“complaint affidavit” dated July 23, 2002; (2) a police report dated August 6,

2002; and (3) a sworn statement from Shepard’s wife.

      The “complaint affidavit,” signed by Officer Davis, charged Shepard with

lewd and lascivious offenses committed upon, or in the presence of, a person less

than sixteen years of age and contributing to the delinquency of a child. In the

“complaint affidavit,” Officer Davis averred that on June 26, 2002 a fifteen-year-

old female gave him a sworn, taped statement that she was involved in a sexual

relationship with Shepard, who was 41, that Shepard gave her alcohol and drugs,

that she became pregnant by Shepard, but later miscarried, and that Shepard

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threatened to kill her family if she revealed their relationship. Underneath Officer

Davis’s averment, a separate, handwritten notation stated: “On 08/05/02 at 2130

hrs., your affiant Budnick made contact with the defendant at his residence. Your

affiant had prior knowledge that probable cause existed. The defendant was

arrested and charged as listed above.” Both officers signed the “complaint

affidavit.”

      The police report contained a narrative section completed by Officer Davis

on August 6, 2002. Officer Davis stated, inter alia, that he arrested Shepard in his

apartment without incident on August 5, 2002. The arrest was effected “with the

assistance of Officer Budnick.”

       Shepard’s wife was present when Officers Davis and Budnick arrested

Shepard. According to her sworn statement, Shepard answered the door and she

saw a plain-clothed man tell Shepard, “We are here to arrest you.” Shepard asked

if the man had a warrant, but received no answer. A uniformed police officer

suddenly appeared. The two men entered the apartment. The uniformed officer

grabbed Shepard by the arm and pushed him into the sofa. The plain-clothed man

told Shepard that he was under arrest.

C.    Testimony During Bench Trial




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      During the bench trial, both Shepard and Officer Budnick testified about

Officer Budnick’s role in Shepard’s arrest. Shepard testified that Officer Budnick

was near Officer Davis at the apartment door, heard Shepard ask Officer Davis if

he had a warrant and then pushed Shepard inside his apartment and placed him in

handcuffs.

      Officer Budnick testified as follows. Officer Budnick was not involved in

Officer Davis’s investigation of Shepard. Officer Budnick did not know Officer

Davis did not have a warrant and became aware of the matter only after Officer

Davis requested backup. Officer Davis told Officer Budnick “to respond to the

residence as his backup because he had probable cause to arrest an individual at

that location known as Dwayne Shepard.” Officer Budnick acted as backup

because Officer Davis was in plain clothes and Shepard’s apartment was in Officer

Budnick’s patrol zone.

      When Officer Budnick arrived, Officer Davis was already at Shepard’s

apartment and did not give Officer Budnick any more information. As Officer

Davis knocked on Shepard’s apartment door and spoke with Shepard, Officer

Budnick took a position in the yard so that he could see if anyone attempted to flee

from the rear of the residence. Officer Budnick could not hear their conversation,

but saw Shepard and Officer Davis step into the apartment while they continued

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talking. Officer Budnick followed them into the apartment out of concern for

Officer Davis’s safety. Once Officer Davis told Shepard he was under arrest,

Officer Budnick placed Shepard in handcuffs. Officer Budnick denied pushing

Shepard into the apartment or hearing Shepard ask if Officer Davis had a warrant.

      Officer Budnick explained that Officer Davis prepared the complaint

affidavit on July 23, 2002, and that he (Officer Budnick) supplemented it on

August 5, 2002, after the arrest.

D.    District Court Order

      Following the bench trial, the district court entered an order with its

findings of fact and conclusions of law. The district court’s findings credited

Officer Budnick’s version of events. The district court found, among other things,

that Officer Budnick did not hear Shepard ask Officer Davis if he had a warrant,

believed he had permission to enter Shepard’s apartment and, as a uniformed

backup officer, was acting on Officer Davis’s instructions when he arrested

Shepard, as follows:

             On August 5, 2002, Shepard and his wife were eating diner [sic]
      in their home when Detective George Davis, who is now apparently
      deceased, of the City of Hallandale Beach Police Department, knocked
      on their front door. Shepard arose from the dining room table, went to
      the door, and asked, “Who’s there?” After Officer Davis responded,
      “Hallandale Beach Police Department,” Shepard opened the door, where
      he faced Officer Davis who was standing alone in plainclothes, just

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      outside of Shepard’s residence at Shepard’s front door. Shepard asked,
      “May I help you?” and Officer Davis replied, “We are here to arrest
      you[;][y]ou are Dwayne Shepard correct?” Shepard alleges that he
      responded, “Yes I am Dwayne Shepard,” and then asked the officer, “Do
      you have a warrant?” Officer Budnick who had not been involved in the
      investigation and was there in uniform as a back-up officer, did not hear
      any of the conversation, as he was approaching from the side of the
      house. When Shepard went inside the house, he was followed by
      Detective Davis. Budnick, believing that they had permission to go into
      the home, followed. Once inside the home, Budnick followed Davis’s
      instructions and placed Shepard under arrest.
             Budnick never heard Shepard say “Do you have a warrant?” If
      Shepard said that phrase, Budnick did not hear it. It was reasonable for
      Budnick to believe that he had permission to follow Davis into
      Shepard’s home, as he was there as a back-up officer.

The district court concluded that, under the circumstances, Officer Budnick had an

objectively reasonable belief that he was authorized to enter Shepard’s home and

did not violate Shepard’s Fourth Amendment rights. Accordingly, the district

court concluded Officer Budnick was entitled to qualified immunity. Shepard

appealed.

                                II. DISCUSSION

      Shepard argues that the district court erred in finding in favor of Officer

Budnick because Budnick’s testimony was not credible. Shepard relies on his




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own version of events to support his claim that Officer Budnick’s actions were

objectively unreasonable.1

       Under the Fourth Amendment, warrantless searches and seizures in a home

are “presumptively unreasonable.” Hartsfield v. Lemacks, 

, 954 (11th

Cir. 1995). The presumption is rebutted, and the search or seizure is lawful, “only

when some exception to the warrant requirement–such as consent or exigent

circumstances– exists.” Bates v. Harvey, 

, 1239 (11th Cir. 2008).

Thus, “in-home arrests violate the Fourth Amendment unless they are

accompanied by a warrant or an exception to the warrant requirement . . . even

when the arrest is accomplished under statutory authority and when probable

cause is clearly present.” 

(quotation marks and brackets omitted). An

accidental search or seizure does not violate the Fourth Amendment if the officer

reasonably attempted to avoid the error. 

. The

objective reasonableness of an officer’s actions in conducting a search or seizure



       1
         We review de novo a district court’s conclusions of law after a bench trial and review its
factual findings for clear error. Proudfoot Consulting Co. v. Gordon, 

, 1230 (11th
Cir. 2009). A factual finding is clearly erroneous “when although there is evidence to support it,
the reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” 

omitted). “[W]hen a trial judge’s finding is
based on his decision to credit the testimony of one of two or more witnesses, each of whom has
told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that
finding, if not internally inconsistent, can virtually never be clear error.” Anderson v. City of
Bessemer City, 

, 575, 

, 1512 (1985).

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will often require an examination of the information possessed by the officer at the

time of the search and seizure. Anderson v. Creighton, 

, 641, 107 S.

Ct. 3034, 3039-40 (1987).

      This Court has concluded that assisting officers during a search are entitled

to qualified immunity when there is no indication that they acted unreasonably in

following the lead of a primary officer or that they knew or should have known

that their conduct might result in a Fourth Amendment violation, even when the

primary officer is not entitled to qualified immunity. See, e.g., Brent v. Ashley,

, 1305-06 (11th Cir. 2001) (concluding officers who assisted in an

unauthorized strip search and x-ray were entitled to qualified immunity because

they did not act unreasonably and had no reason to suspect plaintiff’s

constitutional rights were being violated); 

(concluding

officers who had not seen the search warrant and followed the investigating officer

who obtained search warrant into the wrong house were entitled to qualified

immunity).

      Here, Officer Budnick responded as uniformed backup for Officer Davis,

the investigating officer, and followed Officer Davis’s lead in entering the

apartment and handcuffing Shepard. Although Shepard contends he did not

consent to Officer Davis entering the apartment, Officer Budnick observed the two

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men step into the apartment while they talked. Furthermore, Officer Budnick did

not know that Officer Davis did not have an arrest warrant, had assurances from

Officer Davis that there was probable cause to arrest Shepard and did not hear

Shepard ask Officer Davis if he had an arrest warrant. In short, nothing Officer

Budnick knew at the time of entry would have alerted a reasonable officer in his

shoes that his conduct might result in the violation of Shepard’s Fourth

Amendment rights.

      Although Shepard attacks the district court’s credibility finding, that finding

was based on Officer Budnick’s plausible testimony, and thus we have no

occasion to disturb it. See 

, 105 S. Ct. at 1511-12

(explaining that where a district court’s finding is based on the decision to credit

one witness’s testimony over another’s and that testimony is “coherent and facially

plausible” and not contradicted by other evidence, there “can virtually never be

clear error”).

      Shepard claims that the “complaint affidavit” contradicts Officer Budnick’s

testimony that he was unaware of the investigation and the lack of a warrant prior

to the arrest. The record as a whole does not support this contention. Although

Officer Davis signed and dated the complaint affidavit several days prior to

Shepard’s arrest, the handwritten portion filled out by Officer Budnick expressly

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describes Shepard’s August 5, 2002 arrest in the past tense. Further, Officer

Budnick explained that he completed and signed this portion of the complaint

affidavit after the arrest and that he relied on Officer Davis’s assurances that

probable cause existed during the arrest. It was not clearly erroneous for the

district court to find that Officer Budnick filled out his portion of the affidavit

after the arrest had taken place. Therefore, the “complaint affidavit” does not

demonstrate that Officer Budnick knew the arrest was effected without a warrant.

      For these reasons, we cannot say the district court erred in concluding that

Officer Budnick was entitled to qualified immunity.

      AFFIRMED.




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