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Winfrey v. Pikett

United States Court of Appeals, Fifth Circuit

September 29, 2017

MEGAN WINFREY, Plaintiff - Appellee
KEITH PIKETT, Former Fort Bend County Sheriff's Deputy, Defendant-Appellant

         Appeal from the United States District Court for the Southern District of Texas

          Before JOLLY and ELROD, Circuit Judges, and RODRIGUEZ, District Judge. [*]

          E. GRADY JOLLY, Circuit Judge

         Megan Winfrey brought this lawsuit under 42 U.S.C. § 1983 against Texas law enforcement officers, alleging that they violated her due process rights during a murder investigation. Relevant to this appeal, Megan alleges that Deputy Keith Pikett, a deputy sheriff and canine handler, conducted a dog-scent lineup-a peculiar lineup indeed-that ultimately resulted in her convictions for capital murder and conspiracy to commit capital murder- convictions since vacated by the Texas Court of Criminal Appeals. Pikett moved for summary judgment on the basis of qualified immunity. The district court denied Pikett's motion, and Pikett timely appealed. We DISMISS for lack of appellate jurisdiction because of material factual disputes concerning qualified immunity.


         This case originated when Murray Wayne Burr was found murdered in his home in San Jacinto County, Texas, in August 2004. The San Jacinto County Sheriff's Office and the Texas Rangers investigated the murder, focusing on three suspects: then-sixteen-year-old Megan Winfrey; her seventeen-year-old brother, Richard Winfrey, Jr. ("Junior"); and their father, Richard Winfrey, Sr. ("Senior").

         Several weeks after the murder, Texas Ranger Grover Huff requested that Pikett, a deputy from a nearby law enforcement agency, assist the investigation by running scent lineups using two of his pet bloodhounds and scents from four suspects-Megan and Junior as well as Megan's boyfriend, Chris Hammond, and Hammond's friend, Adam Szarf. Pikett agreed and conducted the scent lineups, which were videotaped.

         Before the scent lineups, Pikett asked the lead investigators to gather scents from the suspects and the victim. Huff asked each suspect to rub a piece of gauze on his or her skin. Each suspect placed the gauze in a plastic bag. Additionally, Huff rubbed a piece of gauze on Burr's clothing and put that in a separate plastic bag.

         Pikett also had filler scents that he took from prisoners at the Fort Bend County Jail. He kept these scents in a duffle bag in the back of his SUV, which is also where he let his dogs ride daily. He reused filler scents multiple times- the ones used in the 2004 lineups were anywhere from one to two years old- instead of gathering new ones for each investigation. These scents were much older than the fresh scents from the suspects. Tracker dogs are more likely to follow fresher scents than older scents.

         Later, Pikett met the investigators in a field. He brought his dogs, unused paint cans, and filler scents. Huff put a different suspect's scent or a filler scent in each paint can. Then, he placed the cans in the field. Pikett then gave one dog the victim's scent and waited to see if the dog "alerted" to any can. After doing the lineup with the first dog, Pikett did it with another dog to confirm the result. The cans stayed in the same position for each dog. The dogs alerted on Megan's scent and Junior's scent as a match to the scent on Burr's clothes.

         Pikett says that each bloodhound alerts in a different way and that he has been unable to train the dogs to alert in a specific manner. He learns each dog's individual alert as he works with it. If the dog alerts on a can, Pikett concludes that the can's scent matches the scent given to the dog. No independent source ever tested or certified Pikett and his dogs.

         More than two years after Pikett performed the scent lineups, Megan, Junior, and Senior were all arrested for Burr's murder. Megan was indicted for capital murder during the course of robbery and conspiracy to commit capital murder.

         Megan's case went to trial, where the scent lineups were a crucial part of the evidence used against her. The lineups were the only evidence that purported to directly connect Megan to the crime scene. Pikett testified that Megan likely had contact with the clothing Burr wore when he was murdered because the dogs alerted at Megan's scent sample. Additionally, Pikett characterized Megan's contact with Burr's clothing as "significant, " and he speculated that it was highly unlikely for that contact to be the result of anything other than direct contact close in time to the murder. Based in no small part on the scent-lineup evidence, the jury convicted Megan on both counts of the indictment.

         The Texas Ninth Court of Appeals in Beaumont affirmed Megan's convictions. Winfrey v. State, 338 S.W.3d 687, 689 (Tex. App. 2011). But in February 2013, the Texas Court of Criminal Appeals reversed and rendered acquittals on both counts, holding that the scent lineups and other corroborating evidence were legally insufficient to support a conviction of capital murder beyond a reasonable doubt or to ...

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