525 F.Supp.2d 248 (2007)
Nancy JURADO SANCHEZ, et al., Plaintiffs,
v.
Miguel PEREIRA, et al., Defendants.
Civil No. 05-1293 (GAG).
United States District Court, D. Puerto Rico.
October 25, 2007.
*249 *250 Jorge M. Izquierdo-San-Miguel, Izquierdo-San Miguel Law Office, Roberto Marquez-Sanchez, Roberto Marquez Law Office, San Juan, PR, for Plaintiffs.
Francisco A. Ojeda-Diez, Department of Justice, Lavinia Aparicio-Lopez, Maria Judith Surillo, Commonwealth Department of Justice, San Juan, PR, Jo-Ann Estades-Boyer, Prado, Nunez & Associates, PSC, Gurabo, PR, for Defendants.

OPINION AND ORDER
GUSTAVO A. GELPI, District Judge.
Plaintiffs, the Estate of Eddie Colon, Luz Abby Colon, Eddie Colon Sanchez and Nancy Jurado Sanchez (hereinafter collectively "plaintiffs"), filed this suit as Eddie Colon's ("Colon") next of kin because of his death while he was incarcerated at a Puerto Rico state prison. Plaintiffs brought this action pursuant to 42 U.S.C. § 1983 alleging constitutional rights violations, as well as state law claims of negligence under Article 1802 of the Civil Code of Puerto Rico, P.R. Laws Ann. tit. 31, § 5141. Defendants Miguel Pereira, Sixto Marrero, Luis Rivera Torres and Luis Garcia Garcia (hereinafter collectively "defendants") timely moved for summary judgment solely on the Section 1983 cause of action. Defendants argue that: (1) there was no substantial risk of serious harm or deliberate indifference on behalf of the prison officials; and (2) they are entitled to qualified immunity. After a thorough review of all pleadings and pertinent law, the court DENIES defendants' motion for summary judgment (Docket No, 89).
I. Standard of Review
Summary Judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must then "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). When deciding a motion for summary judgment, the court must view the record in the light most favorable to the party opposing summary judgment, including all reasonable inferences in the nonmoving party's favor. See id. "If, after canvassing the material presented, the district court finds some genuine factual issue remains in the case, whose resolution one way or the other could affect its outcome, the court must deny the motion." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis added). "The movant's burden is particularly rigorous when the disputed issue involves questions of motive or intent, since in these cases jury judgments about credibility are typically thought to be of special importance." Lipsett v. Univ. of P.R., 864 F.2d 881, 895 (1st Cir.1988).
II. Relevant Material Facts and Procedural Background
The court derives the following factual summary primarily from the parties' statements of material facts. See Docket Nos. 89 and 98. Consistent with the summary *251 judgment standard, the court states the facts in the light most favorable to the plaintiffs. See Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006) Plaintiffs either admit, deny, or qualify each of defendants' proposed uncontested facts. As permitted by Local Rule 56(c), plaintiffs also incorporate a separate section of additional facts into their statement. D.P.R. Local Rule 56(c). Defendants did not submit a reply to plaintiffs' additional facts. See D.P.R. Local Rule 56(d). Consequently, the court deems admitted all properly supported facts contained in the plaintiffs' opposing statement. See D.P.R. Local Rule 56(e).
On the day of the incident, March' 16, 2004, Colon was an inmate at Bayamon 308, an intake center considered minimum security with some limitations. See Docket No. 51 at 14 and Docket No. 98 at 13. The inmate capacity at Bayamon 308 is 144. See Docket No. 89 at 12. Although the capacity was not exceeded, some cells despite being originally built for one in mate, housed two inmates. See id. Bayamon 308 was built prior to the leading case Morales Feliciano v. Barcelo, 497 F.Supp. 14 (D.P.R.1979),' and does not comply with the 55 square footage minimum requirement for each cell. See Docket No. 98 at 12. Therefore, the individual cell gates are left continuously open, like an open dormitory, in order to comply with the Morales Feliciano requirement. See id.
The Administration of Corrections ("Corrections") houses three categories of inmates at the intake center: (1) inmates awaiting pre-trial; (2) inmates convicted and sentenced waiting to be taken to their institution; and (3) "impure" inmates. See Docket No. 89 at 35-38. There are two types' of "impure" inmates: (1) those that have been out on a program, failed to comply with its conditions, and are arrested and confined for a new offense; and (2) those who have failed to comply with program conditions and are awaiting revocation, reclassification or distribution. See id. Colon was considered an "impure" inmate, and at the time of the incident only "impure" inmates were' admitted to Bayamon 308. See Docket No. 89 at 38-39, 57.
At the time of the incident (and currently), Corrections did not take gang affiliation into consideration when segregating prisoners at Bayamon 308. See Docket No. 89 at 41-42, 48-49. Colon did not identify himself as a gang member, nor inform Bayamon 308 that he feared for his life. See Docket No. 89 at 45, 47, 50, 55-56. If an inmate requests to be separated, it is done. See Docket No. 89 at 51, 55. Also, if someone at the intake center has knowledge that the inmate is in danger, the inmate is segregated. See Docket No. 89 at 52, 55, If the inmate has committed a notorious and well-disclosed crime, he is segregated if not doing so would put him in danger of being harmed. See Docket No. 89 at 53, 55. Colon did not meet any of the above-mentioned segregation criteria since the intake center did not receive any tips that he was in harm's way and did not consider him a notorious inmate. See Docket No. 89 at 54, 59-60.
Corrections has established minimum requirements that must be met in order to ensure that a secure environment is maintained within its correctional facilities. See Docket No. 98 at 62. These regulations mandate that prison officials conduct random searches of cells in order to make sure that inmates do not manufacture or keep weapons within the institution. See Docket No.. 98 at 63. On June 6, 2000, Bayamon 308's past administrator issued a mandate requiring weekly search of the cells. See Docket No. 98 at 18, 64. Plaintiffs allege that this mandate was in effect at the time of Colon's death. See id. Defendends *252 assert that, on March 16, 2004, prison officials were to conduct the random searches at least once a month[1]. See Docket No. 89. at 18-19. Defendant Pereira testified that according to the regulations, prison officials must conduct daily searches of at least 10 cells. See Docket No. 98 at 65. Prison officials randomly searched Bayamon 308 once in December 2003, once in January 2004, and twice in February 2004. See Docket No. 89 at 20. Prison officials did not search Bayamon 308 in March 2004 until after Colon's death. See id. During the search conducted on February 26, 2004 officials found 62 shanks or deadly weapons at Bayamon 308's C-II building where Colon resided. See. Docket No. 98 at 68. Defendant Pereira testified that a finding of over 10 shanks in a population of 100 inmates is problematic, and therefore, the finding of 62 shanks was a concern that needed to be investigated. See Docket No. 98 at 69-70. Defendants aver that they still had the remainder of the month of March to be in compliance with the monthly searches regulation. See id. However, plaintiffs argue that defendants were in violation of their weekly search regulation. See Docket No. 98 at 10.
Bayamon 308 is supposed to follow the MGT[2] Staffing Analysis ("MGT Analysis"), which states the minimum amount of staff, the optimum amount, the fixed positions and the movable positions, pursuant to Morales Feliciano. See Docket No. 89 at 1-2, 6, 14. The fixed positions, such as control units, cannot be changed under any circumstances, but the movable positions may be modified depending on the necessity due to the type of inmate at the facility. See Docket No. 89 at 7-8, 13. Plaintiffs allege that defendants did not comply, with the MGT Analysis, while defendants aver that they did comply. See Docket No. 89 at 1, 6, 14 and Docket No. 98 at 1, 6.
Defendants allege that on March 16, 2004 there was adequate staffing at Bayamon 308. See Docket No. 89 at 9. Plaintiffs disagree due to the discovery of 62 shanks during the February 26, 2004 search at the same building where Colon was stabbed to death by fellow inmates using shanks. See Docket No. 98 at 9, 68. Defendants assert that at the time of the attack the inmates were outside the building for recreation purposes. See Docket No. 89 at 10. Plaintiffs clarify that only approximately 30 inmates of the possible 144 had gone outside. See Docket No. 98 at 10. Defendants assert that there was one recreational officer with the inmates in addition to the two officers that were in the building. See Docket No. 89 at 11. Plaintiffs clarify that the two officers who were inside the control units were actually located outside the building. See Docket No. 98 at 11, 14. Plaintiffs aver that, one officer supervising 30 inmates during recreation does not comply with the Morales Feliciano stipulations., See Docket No. 98 at 14.
The gates at Bayamon 308 have a drop lock that falls into place once the gate reaches the end in order to lock it either open or shut. See Docket No. 89 at 22-24. While the gate is moving there is no drop bar in place, and it can be tampered with force or objects in order to keep it open. See Docket No. 89 at 26, 30-31 and Docket No. 98 at 27, 29. Once the gate is completely open or shut and the lock mechanism is in place, the defendants allege the *253 gate cannot be forced. See Docket No. 89 at 29. Plaintiffs aver the gates can be forced, and the inmates forced them during the March 16, 2004 incident. See Docket No. 98 at 29. Defendants aver that the gates were working properly on March 16, 2004, but plaintiffs disagree. See Docket No. 89 at 21, 28, 34 and Docket No, 98 at 21, 28, 34. Defendants, assert that on the day of the incident the inmates had placed sticks in between the gates, and were thus able to force them open. See Docket No. 89 at 27. Plaintiffs allege the inmates were able to open the gates solely with their strength. See Docket No. 98 at 27. Once the inmates controlled the gates, other inmates went downstairs with large weapons and killed Colon. See id. at 74-75.
III. Legal Analysis,
A. Section 1983 Generally
Plaintiffs bring this civil rights action pursuant to 42 U.S.C. § 1983, which states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
Section 1983 does not create substantive rights. Rather, the statute provides a procedural mechanism for enforcing federal constitutional or statutory rights. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). Therefore, a Section 1983 plaintiff must identify the particular federal right that he seeks to enforce via judicial proceedings. In order to prevail in a Section 1983 claim, a plaintiff must demonstrate that the defendant (1) acted under color of state law and (2) deprived him of the identified federal right. Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir.2005) (quoting Romero-Bareelo v. Hernandez-Agosto, 75 F.3d 23, 32 (1st Cir.1996)). A defendant incurs Section 1983 liability only if he was personally involved in the deprivation of rights asserted by a plaintiff; a defendant may be found liable only on the basis of his own acts or omissions. Id.; Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.1989); Rosado De Velez v. Zayas, 328 F.Supp.2d 202, 209 (D.P.R.2004).
B. Failure to Protect
Prison officials have a constitutional duty to protect inmates from violence at the hands of other inmates.[3]See Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In order for plaintiffs to succeed in their failure to protect claim they must show that prison officials violated their duty. See Calderon-Ortiz v. Laboy-Alvarado, 300 F.3d 60, 64 (1st. Cir.2002) (quoting Farmer, 511 U.S. at 834, 114 S.Ct. 1970). Two requirements must be met: (1) the deprivation *254 alleged is "objectively, sufficiently serious," and (2) the conditions of incarceration pose a substantial risk of serious harm. See id. "The culpable state of mind is that of `deliberate indifference' to an inmate's health or safety." Id. The deliberate indifference determination is a subjective one: "if the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id.
In the matter under review, the defendants do not dispute they were all acting under color of state law while performing their duties pertaining to Colon's incarceration at Bayamon 308. In regards to the failure to protect violation requirements, defendants do not challenge that Colon's deprivation is objectively and sufficiently serious since he died as a result of the March 16, 2004 incident. However, defendants dispute that the conditions at Bayamon 308 on the date of the incident posed a substantial risk of serious harm to the inmates.
Specifically, the defendants aver that there were sufficient guards as stipulated in the Morales Feliciano guidelines. However, plaintiffs have introduced the written statement made by defendant Vargas dated March 6, 2004[4] to contradict that assertion. See Docket No. 98 Exhibit 3. Defendant Vargas states, "[w]e the custody officers don't have the security nor equipment to perform our job." Id. Additionally, defendants argue that the gates were working properly, but defendant Vargas himself states that "the entrance doors to the upper and lower controls do not lock" and "the control to lock the cells in the housing area does not work well. Anyone can open them by pulling them." Id. A genuine issue of fact remains as to whether there were enough guards at Bayamon 308 on March 16, 2004 in order to comply with both the Morales Feliciano stipulations and the MGT Analysis. Whether the gates were functioning correctly and whether Corrections at Bayamon 308 complied with their safety regulations is for the trier of fact to decide. Also, there is a dispute as to whether Defendants were mandated to perform weekly or monthly searches of the inmate cells, which could have prevented the accumulation of the weapons used in the incident where Colon lost his life. Plaintiffs have provided sufficient evidence to raise the inference of the culpable state of mind required for defendants to be liable. Inmates at Bayamon 308 were allowed to move freely due to the square footage of the cells, defendants were aware of the large amount of shanks found in the C-II building as testified by defendant Pereira, and defendants were also aware of the gate and door conditions. Defendants purported non-compliance with these safety requirements could support the inference of deliberate indifference. As such, it is not proper for the court to decide the matter on this motion.
C. Qualified Immunity
Prison officials and officers are entitled to qualified immunity from damages in a Section 1983 claim "if they acted with the objective good faith belief that they were not violating the plaintiffs statutory or constitutional rights, as measured by the state of the law when the deprivation occurred." See Maldonado Santiago v. Velazquez Garcia, 821 F.2d 822, 830 (1st Cir.1987). The three-part inquiry requires the court to consider: (1) whether the *255 plaintiff's allegations, if true, establish a constitutional violation; (2) if so, whether thee right was clearly established at the time of the alleged violation; and (3) whether a similarly situated reasonable official would have understood that the challenged action violated that right. Whalen v. Mews. Trial Court, 397 F.3d 19, 23 (1st Cir.2005). Since qualified immunity is an affirmative defense, the defendant has the burden to present evidence that he acted objectively reasonable under the circumstances. See id. at 345. Since there are several factual issues that should be properly submitted to a jury, the court cannot at this stage decide whether defendants are eligible to receive qualified immunity.
IV. Conclusion
At this stage of the proceedings, mindful of our duty to make all reasonable inferences in the plaintiffs' favor, the court finds that triable issues remain as to defendants' alleged liability. Accordingly, the court DENIES defendants' motion for summary judgment (Docket No. 89).
SO ORDERED.
NOTES
[1]  Defendants aver that defendant Pereira issued a new regulating mandating weekly inspections in December 2004. See id.
[2]  MGT is a private company that visits the institution in order to determine its roster of service-the number of guards to be deployed at that location. See Docket. No. 89 at 3-5, 14.
[3]  Sentenced prisoners are protected under the Eighth Amendment's cruel and unusual punishment restraints, and pre-trial detainees under the Fourteenth Amendment's Due Process Clause. Rivera-Quinones v. Rivera-Gonzalez, 397 F.Supp.2d 334, 343 (D.P.R.2005). "However, the standard to be applied is the same as that used in Eighth Amendment cases." Id.
[4]  The Court notes that defendant Vargas made this statement in regards to the March 16, 2004 incident, and the date March 6, 2004 is a typographical error.


9 Cal.App.4th 402 (1992)
11 Cal. Rptr.2d 742
CITY OF SAN BUENAVENTURA et al., Plaintiffs and Appellants,
v.
ALLIANZ INSURANCE COMPANY, Defendant and Respondent.
Docket No. B060381.
Court of Appeals of California, Second District, Division Six.
September 8, 1992.
*403 COUNSEL
Henderson & Wohlgemuth and Joseph R. Henderson for Plaintiffs and Appellants.
Federman, Gridley, Gradwohl & Flaherty, Bruce Gridley and Joyce Helock for Defendant and Respondent.
*404 OPINION
GILBERT, J.
Police from the City of San Buenaventura (City) arrest the driver of a van for driving under the influence. The police call the van's owner, who authorizes the passenger to take the van. The police release the van to the passenger who drives away and gets in an accident, injuring a third party. The victim sues the City, claiming the police were negligent in allowing the passenger to drive the van.
Is the City covered under the van owner's insurance policy? No. We affirm the trial court's decision that the City is not covered and that neither the "permissive use" provision nor the "legally responsible for the use" provision of the policy applies.

FACTS
The Allianz Insurance Company issued a "Business Auto Policy" to M.G. Poulos for his van. On January 29, 1982, Poulos loaned his van to Steven Rodriguez. Rodriguez was driving the van and Steven Lomelin was a passenger when the van was involved in an accident. The police arrested Rodriguez for driving while intoxicated.
Police officers telephoned Poulos to find out whether Rodriguez was driving the van with permission, and whether Poulos would approve of them turning the van over to Lomelin. Poulos told them that Rodriguez had his permission and that Lomelin could take the van. The police gave Lomelin a field sobriety test, and determined he was not under the influence of alcohol. They released the van to him. A short time later Lomelin was in an accident that caused serious injuries to Diane Bennett.
Bennett sued Poulos, Rodriguez, Lomelin, the City and the police officers. Poulos, Rodriguez and Lomelin settled. Bennett's suit against the City was based on a theory of negligent entrustment. In the attachment to her judicial council form complaint she alleged the police officers negligently investigated and administered filed sobriety tests to Lomelin and negligently allowed Lomelin to take the van even though he was intoxicated, an unlicensed driver and subject to arrest because of a warrant from another county.
The City tendered the suit to Allianz for defense and indemnity, claiming coverage under clauses naming as "additional insureds" a permissive user and anyone liable for the conduct of an insured. Allianz rejected the tender, claiming it had no liability to the City under the policy.
Bennett's case against the City went to a jury trial. In special interrogatories the jury found that Lomelin was under the influence of alcohol at the *405 time of the first accident when Rodriguez was arrested, but that at the time of the first accident the police did not know nor should they have known that Lomelin was under the influence. Despite the special findings the jury awarded $317,000 against the City and $9,000 against each of two police officers. Eventually the City paid Bennett $150,000 in settlement. The City initiated the instant action against Allianz, seeking to recover the amount paid in settlement and fees spent in its defense. After a bench trial on stipulated facts the court found Allianz had no duty to the City and entered judgment for Allianz.

DISCUSSION
The Allianz policy provided that in addition to the named insured:
"2. Anyone else is an insured while using with your permission a covered auto you own, hire or borrow....
"3. Anyone liable for the conduct of an insured described above is an insured but only to the extent of that liability."
That policy provisions are pursuant to Insurance Code[1] section 11580.1, subdivision (b)(4) which requires automobile policies to cover permissive use and persons "legally responsible for the use of" a covered automobile.
Section 11580.06, subdivision (g),[2] defines "use." It provides:
"(g) The term `use' when applied to a motor vehicle shall only mean operating, maintaining, loading, or unloading a motor vehicle."
Section 11580.06, subdivision (f),[2] defines "operating." It provides:
"(f) The term `operated by' or `when operating' shall be conclusively presumed to describe the conduct of the person sitting immediately behind the steering controls of the motor vehicle The person shall be conclusively presumed to be the sole operator of the motor vehicle."
(1) Here the police did not use the van. They did not operate, maintain, load or unload it. Nor did the police have permission to use the van. Lomelin *406 was the permissive user, not the police. That the police may have had a number of options for disposing of the van, such as having it towed or leaving it parked on the side of the road, did not make them permissive users. The existence of such options arose from their authority as peace officers and not from the permission of the van's owner.
The City next contends that even if it was not covered under Poulos's policy as a permissive user, it was covered as a party liable for the conduct of an insured. It argues that Lomelin was an insured in his capacity as a permissive user, and that under the theory of "negligent entrustment" the City was held liable for Lomelin's conduct.
The City relies on Ohio Farmers Indem. Co. v. Interinsurance Exchange (1968) 266 Cal. App.2d 772 [72 Cal. Rptr. 269]. There Mrs. Place was insured with a policy that covered anyone legally responsible for the use of her car. Place brought her car for repair to Johnson who agreed to deliver the automobile to Place after the work was done. Johnson assigned the delivery task to an employee, Hill, even though Johnson knew Hill suffered from epileptic seizures. Hill had a seizure while driving Place's car and caused an accident. Johnson was sued and found liable. The court held that Johnson was covered under Place's policy because, for one reason, Johnson was legally responsible for the use of the car under the theory of negligent entrustment. (Id. at pp. 775-776.)
But Johnson's liability arose from his negligent assignment of Hill as a driver. (266 Cal. App.2d at p. 774.) Here the police did not assign Lomelin to drive the van, Poulos did. In fact, under the stipulated facts, the police would not have allowed Lomelin to drive the van but for Poulos's consent. The police had no authorization from Poulos to drive the van themselves or to choose another driver. At best the police had the power as peace officers to prevent Lomelin from driving. The failure of the police to exercise their powers as peace officers did not amount to an entrustment of the van to Lomelin. That the complaint is labeled "negligent entrustment" does not make it so.
(2) It is true that the duty to defend is broader than the duty to indemnify, and that an insurer has a duty to defend whenever it ascertains facts which give rise to potential liability under the policy. (Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 276-277 [54 Cal. Rptr. 104, 419 P. 22d 168].) But here there were no facts giving rise to potential liability under the policy.
(3) Nor is there merit to the City's contention that Allianz is estopped to deny coverage by the jury's findings in Bennett's case against the City. The *407 City relies on Geddes & Smith, Inc. v. St. Paul Mercury Indemnity Co. (1959) 51 Cal.2d 558, 561 [334 P.2d 881], for the proposition that an insurer who refuses defense on the ground that the claim is not within policy coverage is bound by all material findings of fact essential to the judgment of liability against the insured. Here the parties stipulated to the material facts in Bennett's case. The facts do not show a basis for coverage under the Allianz policy. We need not concern ourselves with the mystery of how the jury found the City liable.
The judgment is affirmed. Costs are awarded to respondent.
Stone (S.J.), P.J., and Yegan, J., concurred.
Appellants' petition for review by the Supreme Court was denied November 25, 1992.
NOTES
[1]  All statutory references are to the Insurance Code unless otherwise stated.
[2]  Although section 11580.06 had not been enacted at the time of the instant accident, the statute was a clarification of existing law and applies to accidents occurring before its enactment. (Ohio Farmers Ins. Co. v. Quin (1988) 198 Cal. App.3d 1338, 1349 [244 Cal. Rptr. 359].)


TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-06-00106-CR

Jeffrey Fields, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NO. D-1-DC-2004-904170, HONORABLE FRED A. MOORE, JUDGE PRESIDING

M E M O R A N D U M  O P I N I O N

	The facts and procedural history are well known to the parties and are not in dispute,
and therefore, we need not exhaustively detail them here.  Jeffrey Fields was found guilty of
aggravated assault.  See Tex. Penal Code Ann. §§ 22.01(a) (defining assault), 22.02(a) (defining
aggravated assault in relation to definition of assault found in article 22.01), (West Supp. 2008).
Further, the jury concluded that certain enhancement allegations were true and imposed a life
sentence as punishment.
	On appeal, Fields contends that the district court made the following errors:
(1) allowing "Tina White," (1) the victim in this case, to testify that after Fields assaulted her, he
smoked crack; and (2) allowing Eric Wilson, a police officer, to testify regarding a crack pipe found
in Fields's motel room.  Fields contends that both types of evidence were inadmissible under the
rules of evidence.  See Tex. R. Evid. 404(b) (generally stating that evidence of other crimes is not
admissible to prove character but also listing certain exceptions to general prohibition).  In
making his claims, Fields admits that he did not object to the disputed testimony, but he asserts that
the admission of the evidence constituted fundamental error and may, therefore, be
considered on appeal.
	Generally speaking, in order for a complaint to be properly preserved for appellate
review, "the record must show that . . . the complaint was made to the trial court by a timely request,
objection, or motion."  Tex. R. App. P. 33.1.  Similarly, the rules of evidence state that a party may
not complain regarding the admission of evidence unless a substantial right of the party is affected
and "a timely objection or motion to strike appears of record."  Tex. R. Evid. 103(a)(1).  Requiring
specific objections to the admission of evidence advances the policy interests of preventing and
correcting errors made during trial, whereas excusing the need for objections leads to the opposite
result.  See Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002).  Accordingly, all "but the
most fundamental rights," including some constitutional rights, are forfeited if not pursued by the
party during trial.  Id.; see Tex. R. Evid. 103(d) (explaining that in criminal cases, nothing in rules
of evidence "precludes taking notice of fundamental errors affecting substantial rights although they
were not brought to the attention of the court").  When discussing what constitutes a fundamental
right, the court of criminal appeals has explained that violations of the following types of rights may
be addressed for the first time on appeal: rights that the legislature has specified may be pursued
without objection; rights that are waivable only, such as the right to an attorney; and rights that are
systemic requirements necessary for the administration of justice, such as the need for a court to have
jurisdiction over a case before ruling on it.  See Saldano, 70 S.W.3d at 887-88.
	The improper admission of evidence during trial does not fall into one of the limited
categories of errors that may be addressed on appeal without proper objection.  Id. at 889 (explaining
that failure to object to admission of evidence waives appellate complaints regarding admissibility
of that evidence even when evidence addresses constitutional right of defendant).  Because Fields
failed to object to the introduction of the allegedly improper testimony, he did not preserve a
complaint for appeal.  Id. at 890; see Tex. R. App. P. 33.1.
	For this reason, we affirm the judgment of the district court.

					David Puryear, Justice
Before Justices Patterson, Puryear, and Pemberton
Affirmed
Filed:   March 12, 2009
Do Not Publish
1.   Tina White was a pseudonym utilized by the victim in this case.


891 N.E.2d 50 (2008)
STEDMAN
v.
GREENE COUNTY DCS.
Supreme Court of Indiana.
June 12, 2008.
Transfer denied. All Justices concur.


                         COURT
OF APPEALS
                  SECOND
DISTRICT OF TEXAS
                           FORT
WORTH

                                        NO. 2-05-309-CV

CHESTER MARTIN RANSOM
                                                                                APPELLANT

                                                   V.

DEBRA K. RANSOM                                                                APPELLEE

                                              ------------

            FROM
THE 231ST DISTRICT COURT OF TARRANT
COUNTY

                                              ------------

                  MEMORANDUM
OPINION[1]
AND JUDGMENT

                                              ------------
On August 24, 2005 and
September 9, 2005, we notified appellant, in accordance with rule of appellate
procedure 42.3(c), that we would dismiss this appeal unless the $125 filing fee
was paid.  See Tex. R. App. P. 42.3(c).  Appellant has not paid the $125 filing
fee.  See Tex. R. App. P. 5, 12.1(b).

Because appellant has failed
to comply with a requirement of the rules of appellate procedure and the Texas
Supreme Court's order of July 21, 1998,[2]
we dismiss the appeal.  See Tex. R. App. P. 42.3(c), 43.2(f).
Appellant shall pay all costs
of this appeal, for which let execution issue.
See Tex. R. App. P.
43.4.
PER CURIAM

PANEL
D:  CAYCE, C.J.; LIVINGSTON and
DAUPHINOT, JJ.

DELIVERED:
September 29, 2005

[1]See Tex. R. App. P. 47.4.

[2]July
21, 1998 AOrder
Regarding Fees Charged in Civil Cases in the Supreme Court and the Courts of
Appeals,@
971-972 S.W.2d (Tex. Cases) XXXVIII (1998).


152 F.2d 183 (1945)
PERRY et al.
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 13126.
Circuit Court of Appeals, Eighth Circuit.
December 13, 1945.
*184 James D. Dye, of Wichita, Kan. (Ellis D. Bever, of Wichita, Kan., on the brief), for petitioners.
Harold D. Cohen, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, A. F. Prescott, and Louise Foster, Sp. Assts. to Atty. Gen., on the brief), for respondent.
Before GARDNER, THOMAS and RIDDICK, Circuit Judges.
THOMAS, Circuit Judge.
This is a petition to review a decision of the Tax Court of the United States redetermining an income tax deficiency of the taxpayers for the year 1937. The petitioners are husband and wife residing at Kansas City, Missouri. They kept their books and filed their income tax returns on a cash basis.
The question in issue before the Tax Court was whether deferred payments received by J. W. Perry in 1937 under a contract with Canadian Telephones & Supplies, Ltd., constituted gain realized in that year under the provisions of § 111 of the Revenue Act of 1936, 49 Stat. 1648 et seq., 26 U.S.C.A. Internal Revenue Acts, page 813, at page 854, or whether such payments constitute income for the year 1936 when the contract was executed.
The pertinent provisions of the 1936 statute read:
"Sec. 111. Determination of Amount of, and Recognition of, Gain or Loss.
"(a) Computation of gain or loss. The gain from the sale or other disposition of property shall be the excess of the amount realized therefrom over the adjusted basis provided in section 113(b) for determining gain. * * *
"(b) Amount realized. The amount realized from the sale or other disposition of property shall be the sum of any money received plus the fair market value of the property (other than money) received."
Decision of the issue before the Tax Court turned upon the question whether the contract with the Canadian corporation, dated May 5, 1936, for deferred payments, had a "fair market value" when executed in 1936 within the meaning of § 111(b).
The question presented to this court for determination on review is whether the decision of the Tax Court that the contract of 1936 "did not have a fair market value" is "in accordance with law." 26 U.S.C.A. Int.Rev.Code, § 1141(c) (1). The Tax Court, under the statute is the "basic fact-finding and inference-making body." Boehm v. Commissioner, 66 S.Ct. 120, 124, 90 L.Ed. ___. If its decision is in accordance with law, the different inferences and conclusions that might fairly be drawn from the undisputed facts are immaterial. Commissioner v. Scottish American Inv. Co., 323 U.S. 119, 65 S.Ct. 169.
The substantial facts giving rise to the controversy are not in dispute. Most of them were stipulated at the hearing before the Tax Court. On May 5, 1936, the petitioner, J. W. Perry, was the owner of (a) Notes of Union Investment and Loan Company on which there was a balance due of $47,500; (b) A claim for $20,000 for services rendered against Community Telephone Company of Kansas City, Missouri, and (c) An agreement dated April 6, 1936, between J. W. Perry and R. B. Jones & Sons, Inc., insurance agents of Kansas City, Missouri.
*185 On that day, May 5, 1936, J. W. Perry entered into the contract which is the basis of this controversy with Canadian Telephones & Supplies Limited of Toronto, Canada (hereinafter called Canadian), by the terms of which he assigned to Canadian the three properties described in the preceding paragraph for an agreed consideration of $147,500 payable $60,000 in cash upon execution of the contract and the balance in monthly installments of $3,000 each beginning June 1, 1936, with interest at the rate of 5% per annum on the deferred installments, payable quarterly, with the privilege of liquidating the unpaid balance in amounts greater than $3,000 a month.
The contract provided further:
"It is agreed between the parties hereto that an executed copy of this agreement shall be deposited with and held in the custody of Canadian Telephones & Supplies Limited, and that as collateral thereto it shall hold the following described items, which are, for the purpose of this agreement, valued as follows:

                                           Valued at
  "Notes of Union Investment &
    Loan Co. par value $47,500 ..........   $ 47,500
  "Claim against Community Telephone
    Co.  $20,000 .................     20,000
  "Contract dated April 6, 1936 between
    R. B. Jones & Sons, Inc.,
    and J. W. Perry .....................     80,000
                                            ________
                                            $147,500

"The said $60,000 paid upon the signing of this agreement shall be deemed to be payment in full for the notes of Union Investment and Loan Company of $47,500 and the said notes are released from this agreement to Canadian Telephones & Supplies Limited as its property. The balance of said $60,000 shall be applied on payment of the claim against Community Telephone Company. The monthly payments of $3,000 per month, as hereinabove provided, shall be first applied in payment of the claim against Community Telephone Company until a total of $67,500 has been under this contract paid, whereupon the claim against Community Telephone Company shall be released from this agreement to Canadian Telephones & Supplies Limited, as its property.
"Upon the payment of the amount of $147,500 provided for in this contract, this contract shall terminate and the contract between R. B. Jones & Sons Inc. and J. W. Perry shall be released from this agreement and delivered up to Canadian Telephones & Supplies Limited."
On October 14, 1936, Canadian transferred its rights and interests under the contract to Kroy Investment Company, Limited, of Canada, and Kroy assumed the liabilities and obligations of Canadian thereunder. On the same day Perry accepted Kroy as successor under the contract and released Canadian "of all its liabilities and obligations under said contract dated May 5, 1936." Paragraph "4" of the contract of October 14, 1936, by the terms of which Perry accepted Kroy as obligor in place of Canadian provides: "It is agreed between the parties hereto that Kroy is to have all the same rights, options and privileges and is to be subject to all the same limitations and restrictions, as said Canadian Telephones & Supplies, Limited, under said contract dated May 5, 1936, by and between said Canadian Telephones & Supplies, Limited, and said J. W. Perry."
At that time $72,500 of the purchase price remained unpaid. As of December 31, 1936, the entire unpaid balance on the contract was $63,500, all of which was paid by Kroy on or before April 12, 1937.
It will be observed that at the end of 1936 the purchase price of the notes of Union Investment and Loan Company and the claim against Community Telephone Company had been paid in full and these two items had been released, pursuant to the terms of the contract, to Canadian or to Kroy Investment Company as their property. At that time $16,500 had also been paid on the purchase price of the R. B. Jones & Sons, Inc., contract, leaving the total unpaid balance of $63,500 applicable to the purchase price of that contract. Since the income tax deficiency is based upon the payment of this $63,500 balance in 1937, we are not particularly concerned here with the history of the notes of the Union Investment and Loan Company and the claim against the Community Telephone Company.
The transactions connected with and the subject matter of the R. B. Jones & Sons, Inc., contract were considered by the Tax Court to have a bearing upon the issue of fair market value of the contract of May 5, 1936.
Canadian and Kroy, both of which are Canadian corporations, are subsidiaries of Theodore Gary and Company, a holding *186 company, with numerous affiliated and subsidiary corporations, organized under the laws of Missouri. On March 9, 1934, J. W. Perry entered into a contract with Theodore Gary and Company, hereinafter called Gary, by one of the terms of which Gary agreed, at the request of Perry, to place with R. B. Jones & Sons, Inc., insurance covering the requirements of its subsidiaries on which the gross premiums at regular tariff rates would amount to at least $680,000 during a five-year period, failing which Gary agreed to pay Perry as liquidated damages an amount equal to 30% of the deficiency in such premiums, and Perry agreed to procure for Gary a 5% reduction from the regular tariff rates.
On April 6, 1936, J. W. Perry entered into the contract with R. B. Jones & Sons, Inc., which is the subject of assignment to Canadian under the contract of May 5, 1936. By the terms of the April 6th contract R. B. Jones & Sons, Inc., agreed that if Perry caused to be placed with it for the Gary Company and its subsidiaries and affiliated companies insurance on which the gross premiums at regular rates, less cancellations, would amount to $770,000 Jones & Sons would secure reductions thereon from the regular tariff rates in the amount of $147,500. The contract further provided that Perry would reimburse Jones & Sons for all amounts paid to local agents as commissions; and that Perry might assign the contract with the consent of Jones & Sons provided the assignee would carry out all the terms of the agreement imposed upon Perry. On April 7, 1936, confirmation of an oral understanding "given at the time of the agreement dated April 6, 1936", was executed, whereby Cliff C. Jones and J. W. Perry jointly and severally agreed that in consideration of the contract of April 6th they would protect and save harmless Jones & Sons from two-thirds of any loss, damage or expense incurred by virtue of said contract or of anything done in pursuance thereof.
The taxpayers contended that the question of fair market value is one of fact and that the promise in the contract of May 5, 1936, to make future payments aggregating $87,500 in installments of $3,000 a month had at the time of the execution of the contract a fair market value equal to the amount of the unpaid installments. To support their contentions they introduced in evidence the financial statements of Canadian and of Canadian (B.C.) and the testimony of three value witnesses. These witnesses testified that the contract after the $60,000 payment had been made had a fair market value of $87,500. On cross-examination J. W. Perry explained that by fair market value he meant that the contract was worth that amount of money to him. Arthur B. Eisenhower and George C. Kopp, bankers of Kansas City, Missouri, basing their opinions upon the financial statements of Canadian and Canadian (B.C.) and on the market for securities, testified that the contract had a fair market value at its face. Kopp said that he based his opinion on the evidence presented which convinced him the payments would be collected, but that while he would have no reluctance in recommending the investment to a client he would not advance any money on the security of the balance sheets of the Canadian companies without an investigation. There was no evidence of any sales of similar contracts or of any offers for the particular contract.
The Tax Court, viewing the evidence as a whole, found (1) that considering the question of fair market value always as one of fact the taxpayers had failed to show fair market value in the agreement of May 5, 1936, to pay $147,500 and (2) that the contract did not evidence when executed in 1936 a closed transaction for tax purposes in no degree executory and with only a mere unconditional promise to pay a specific sum remaining.
In reference to the first of these findings the Tax Court said that the total effect of the evidence shows only that the contract had intrinsic value and that the evidence is not convincing that it had fair market value. "The very fact", said the Court, "that the statute uses `fair market value' instead of mere `value', indicates intent not to permit the inclusion in income of any contract merely because of intrinsic value."
In reference to the second finding that the contract did not represent a closed transaction in 1936 for tax purposes the Court made several observations. It pointed out that title to the notes, to the claim against the Community Telephone Company and to the Jones contract, did not pass to the assignee until the agreed value of each of these items respectively had been paid in full. Title to each item remained in Perry as "collateral" security at least for the purchase price. Although the assignee itself held the Jones *187 contract in escrow until April 12, 1937, the contract of May 5, 1936, shows clearly, said the Court, that Perry did not intend, and was not obliged, to deliver the Jones contract until payments were completed.
Again, in a separate assignment of the Jones contract made as a part of the transaction of May 5, 1936, the assignee, Canadian, agrees to carry out and perform any and all things to be performed by Perry under the Jones contract. In that contract Perry agreed to reimburse Jones for all amounts paid to local agents as commissions. In case Canadian had failed to compensate Jones for such commissions Perry would have been liable for them. In any event Canadian did not know at the time the contract was made what the total cost of the Jones contract would be.
Further, the Tax Court observes that the contract of October 14, 1936, between Perry and Kroy Investment Company, to which Canadian assigned the contract of May 5, 1936, recognizes mutual rights and liabilities under the latter contract inconsistent with a mere unconditional obligation to pay a specific sum; for therein it is recited that "Kroy is to have all the same rights, options and privileges and is to be subject to all the same limitations and restrictions" as Canadian in the contract of May 5, 1936. Also, Perry agrees to deliver to Canadian "a release of all its liabilities and obligations under the contract dated May 5, 1936."
We are unable to reconcile the authorities cited by counsel or found by us upon the question determined by the Tax Court adversely to the contentions of the taxpayers. The courts do not agree upon any simple universal rule to test the existence or not of the fair market value of a contract for deferred payments under § 111(b) nor for determining when a transaction is closed for tax purposes. The decisions of the Board of Tax Appeals and of the Tax Court as well as those of the federal courts are not consistent upon the point.
Under the statute property having a satisfactory ascertainable value, notes or bonds representing definite and fixed obligations, and securities marketable in the usual channels of trade when received in consideration for a sale of property are generally regarded, to the extent of the value of such items, as the receipt of cash and the transaction is considered closed for tax purposes in the year in which the sale is consummated. Whitlow v. Commissioner, 8 Cir., 82 F.2d 569; D. D. Oil Co. v. Commissioner, 5 Cir., 147 F.2d 936, and cases cited. On the other hand, if the property or thing received other than money has no fair market value or if the sale is not a definite and closed transaction gain is not regarded as realized by the taxpayer until the year in which payment in money is received. Bedell v. Commissioner, 2 Cir., 30 F.2d 622; O'Meara v. Commissioner, 10 Cir., 34 F. 2d 390; Logan v. Commissioner, 2 Cir., 42 F.2d 193, affirmed sub nomine Burnet v. Logan, 283 U.S. 404, 413, 51 S.Ct. 550, 75 L.Ed. 1143; Schoenheit v. Lucas, 4 Cir., 44 F.2d 476; Mount v. Commissioner, 2 Cir., 48 F.2d 550; Helvering v. Walbridge, 2 Cir., 70 F.2d 683, 685; Commissioner v. Segall, 6 Cir., 114 F.2d 706; Cassatt v. Commissioner, 3 Cir., 137 F.2d 745.
In the case of Bedell v. Commissioner, supra, Bedell advanced $50,000 to one Cohen to apply on the purchase price of real estate. His contract with Cohen was that he should receive one-half the profits on a resale of the property. A contract for the resale of the property at a substantial profit was closed on December 12, 1919, $75,000 of the purchase price being deposited in escrow to await the closing on February 29, 1920. The contract was actually closed on February 2, 1920, when Bedell's advance was returned to him and he was paid one-half the profits in accordance with the agreement. The question was whether Bedell realized the profits for income tax purposes in 1919 when the contract was entered into or in 1920 when payment was received. In holding that the profit was realized in 1920 when paid Judge Learned Hand said [30 F.2d 624]:
"* * * it is true that an obligation, even a conditional obligation, is in some sense property * * * nevertheless payment is made in exchange for title, and will never be made if it is not conveyed. To speak of the profit as resulting because its amount can be presently ascertained, though performance remains uncertain, seems to us a perversion of language. * * *
"It is absurd to speak of a promise to pay a sum in the future as having a `market value', fair or unfair. * * * Even if we could treat the case as an exchange of property, the profit would be *188 realized only when the promise was performed."
As to the market value of a contract to pay in the future, the court said in Helvering v. Walbridge, supra [70 F.2d 685], that evidence of market value of such a promise "can be no more than an opinion as to the value of a unique right of action for which there were no known buyers, nor any but an imaginary demand"; and the court held that profit was not realized until payment was made. The Third Circuit Court of Appeals reached the same conclusion in the Cassatt case, supra. To the same effect is the decision of the Sixth Circuit Court of Appeals in the Segall case, supra.
These cases seem to be predicated upon the fact that in a contract of sale of property containing a promise to pay in the future, but not accompanied by notes or other unqualified obligations to pay a definite sum on a day certain, the obligation to pay and the obligation to pass title both being in the future, there is an element of uncertainty in the transaction and the promise has no "market value", fair or unfair. This theory is supported by the decision of the Supreme Court in Lucas v. North Texas Co., 281 U.S. 11, 50 S.Ct. 184, 185, 74 L.Ed. 668. In that case a contract for the sale of timber land was effected on December 30, 1913, and the parties were ready to complete the transaction, but the papers were not prepared and delivered and the purchase price paid until January 5, 1917. The question involved was whether the vendor's gain on the transaction was realized in 1916 or 1917 for tax purposes. The Court said, "The title and right of possession remained in it [the vendor] until the transaction was closed. Consequently unconditional liability of vendee for the purchase price was not created in that year [1916]." And the Court held that the gain was returnable for tax purposes in 1917.
We agree with the taxpayers that the question of fair market value is one of fact, but we think that in such a case as this it is an inferential fact. Here the question of whether or not the payments for the Jones contract promised to be made in 1937 had a fair market value in 1936 within the meaning of the tax laws is, to say the least, one of doubt. The decision of the Tax Court shows that it considered the whole question both as one of fact and as one of law. Whether the question should be considered as one of law or as one of fact or should be regarded as a mixed question of law and fact there is a sufficient basis in the record to warrant and support the finding and conclusion of the Tax Court. Viewed from the light most favorable to the taxpayers all that can be said is that the record presents a question the answer to which is in some degree doubtful because the decisions of courts including the Tax Court itself are not entirely consistent. In reviewing a decision of the Tax Court, however, this court is not concerned with the strength of the reasoning nor its consistency with decisions in other cases. Unless it is clear that the decision is without foundation in the record or is contrary to law it "must stand." Dobson v. Commissioner, 320 U.S. 489, 502, 64 S.Ct. 239, 88 L.Ed. 248. Applying these standards prescribed by the Supreme Court, we think the record here including the stipulated facts and the testimony of the witnesses presented questions strictly entrusted to the determination of the Tax Court, and we find no reversible error in its proceedings.
Affirmed.


                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 29 2011

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS

                             FOR THE NINTH CIRCUIT

ALFREDO REYES-VERASTICA,                         No. 09-70887

               Petitioner,                       Agency No. A092-519-090

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.

                      On Petition for Review of an Order of the
                         former Legalization Appeals Unit

                             Submitted March 8, 2011 **

Before:        FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.

       Alfredo Reyes-Verastica, a native and citizen of Mexico, petitions for review

of the former Legalization Appeals Unit’s (“LAU”) order dismissing his appeal

from the denial of his application for temporary resident status as a Special

Agricultural Worker (“SAW”). We have jurisdiction under 8 U.S.C. §§ 1160(e)(3)

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and 1252. Reviewing for abuse of discretion, Perez-Martin v. Ashcroft, 394 F.3d

752, 758 (9th Cir. 2005), we deny the petition for review.

      The LAU did not abuse its discretion in dismissing Reyes-Verastica’s SAW

appeal where he provided insufficient evidence to establish that he performed

qualifying agricultural work during the statutory time period. See id. at 759-60 (to

overcome derogatory government evidence, SAW applicant must provide

sufficient evidence to show qualifying employment “as a matter of just and

reasonable inference”) (quoting 8 U.S.C. § 1160(b)(3)(B)(iii)).

      PETITION FOR REVIEW DENIED.

                                          2                                   09-70887


                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 16 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-30255

                Plaintiff-Appellee,             D.C. No.
                                                1:16-cr-00082-SPW-1
 v.

DIMARZIO SWADE SANCHEZ,                         MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                           for the District of Montana
                    Susan P. Watters, District Judge, Presiding

                       Argued and Submitted March 5, 2020
                                Portland, Oregon

Before: McKEOWN and PAEZ, Circuit Judges, and HUCK,** District Judge.

      Dimarzio Sanchez appeals his conviction for first degree murder. We have

jurisdiction under 28 U.S.C. § 1291, and affirm the district court.

      We review for abuse of discretion the denial of a motion for a new trial.

United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). The

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
district court did not abuse its discretion in denying Sanchez’s motion, as the

newly-discovered evidence was “merely impeaching” and did not indicate that

Sanchez “would probably be acquitted in a new trial.” Id. at 1264. Sanchez’s

Brady argument also fails, as he received the evidence “at a time when disclosure

would be of value” to him. United States v. Gamez-Orduño, 235 F.3d 453, 461

(9th Cir. 2000) (internal quotation marks omitted).

      We review de novo the denial of a motion to suppress, and review the

underlying factual findings for clear error. United States v. Torres, 828 F.3d 1113,

1118 (9th Cir. 2016). The district court properly denied the motion. Sanchez did

not unambiguously request a lawyer, see Davis v. United States, 512 U.S. 452, 459

(1994), but, at his request, was permitted to consult with a tribal advocate. His

subsequent waiver of rights was voluntary, knowing, and intelligent, as it was

“made with a full awareness of both the nature of the right being abandoned and

the consequences of the decision to abandon it.” United States v. Doe, 155 F.3d

1070, 1074 (9th Cir. 1998) (internal quotations marks omitted).

      We review jury instructions “as a whole to determine whether they are

misleading or inadequate to guide the jury’s deliberation.” United States v.

Vallejo, 237 F.3d 1008, 1024 (9th Cir. 2001). The district court properly declined

to instruct the jury on the mandatory minimum life sentence Sanchez faced, as it

“has long been the law that it is inappropriate for a jury to consider or be informed

                                          2
of the consequences of their verdict.” United States v. Frank, 956 F.2d 872, 879

(9th Cir. 1991).

      AFFIRMED.

                                        3


                                                                F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit
                                      PUBLISH
                                                                APR 26 2005
                   UNITED STATES COURT OF APPEALS
                                                              PATRICK FISHER
                                                                    Clerk
                                TENTH CIRCUIT

DENVER JUSTICE AND PEACE
COMMITTEE, INC.; LUIS
ESPINOSA-ORGANISTA,

            Plaintiffs - Appellees,

v.                                              No. 03-1470

CITY OF GOLDEN; DAVID FARLEY, a
detective with the Golden Police
Department, in his individual capacity;
JEFF D. KREUTZER, a detective with the
Golden Police Department, in his
individual capacity; DAVID J. THOMAS,
District Attorney for the First Judicial
District, in his official capacity; MARK
PAUTLER, an Assistant District Attorney
for the First Judicial District, in his
individual capacity; CITY AND
COUNTY OF DENVER,

            Defendants,

     and

ANTHONY ORTIZ, an officer with the
Denver Police Department, in his
individual capacity,

            Defendant - Appellant.
           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                        (D.C. No. 02-Z-0473 (BNB)

Stan M. Sharoff, Assistant City Attorney, Denver City Attorney’s Office (Thomas S. Rice
and Brian K. Matise, Senter Goldfarb & Rice, L.L.C., on the brief), Denver, Colorado, for
Defendant-Appellant.

Mark Silverstein, American Civil Liberties Union, (Lino S. Lipinsky de Orlov, McKenna
Long & Aldridge LLP, with him on the brief) Denver, Colorado, for Plaintiffs-Appellees.

Before BRISCOE, HOLLOWAY and HARTZ, Circuit Judges.

HOLLOWAY, Circuit Judge.

      Plaintiffs sued the City of Golden and Denver police officer Anthony Ortiz

(“Ortiz”) under 42 U.S.C. §§1983 and 1988, alleging violation of their Fourth

Amendment rights during a search of the Denver Justice and Peace Committee (“DJPC”)

offices. The District Court denied Defendants’ motion to dismiss claims against Officer

Ortiz on the ground of qualified immunity, for Ortiz’s pat-down search of Plaintiff-

Appellee Luis Espinosa-Organista (“Espinosa”), who is office manager of DJPC and was

on the premises at the time police executed their search warrant for the DJPC office.

Defendant Officer Ortiz now appeals.

                                            -2-
                                              I

                                     BACKGROUND

       In reviewing a District Court’s denial of a motion for dismissal, we accept as true

“all well pleaded facts in the complaint, as distinguished from conclusory allegations.”

Smith v. Plati, 258 F.3d 1167, 1774 (10th Cir. 2001). The following are the facts as

alleged by Plaintiff-Appellees DJPC and Espinosa in their Fourth Amended Complaint.1

       DJPC is an advocacy organization that focuses on United States foreign policy in

Latin America. It has generally been critical of past and present U.S. military

involvement in the region as well as economic policies promulgated by the World Bank

and International Monetary Fund which affect that region. DJPC’s activities include a

newsletter, website, speakers, articles, leaflets, letter-writing campaigns, picketing,

legislative advocacy and coalition work.

       DJPC shares office space in Denver with the Quaker-run American Friends

       Subsequent to filing their initial Complaint (Aplt. App. at 17), Plaintiffs filed five
       1

Amended Complaints (Aplt. App. at 40, 66, 94, 123 and 173). Although the Amended
Complaints add and delete allegations and claims relating to other issues, the Fourth
Amendment claims related to the frisk of Espinosa remained the same.

       Ortiz filed his Motion to Dismiss based on qualified immunity on July 25, 2003.
At the time the operative pleading was the Fourth Amended Complaint. Subsequent to
the Motion to Dismiss, a Fifth Amended Complaint was accepted for filing by the District
Court. The Fifth Amended Complaint raises the same constitutional claim under the
Fourth Amendment against Ortiz that was present in the Fourth Amended Complaint;
therefore this appeal was not mooted by its filing. Our opinion will cite to the Fourth
Amended Complaint.

                                             -3-
Service Committee (AFSC). On December 14, 2000, Golden city police officers searched

the DJPC and AFSC offices, pursuant to a search warrant issued by the Jefferson County

Court. Defendant Officer Ortiz and other Denver Police officers were also present for the

search. The Golden police were investigating an incident of vandalism during a DJPC-

organized protest at Kohl’s department store in Golden on December 9, 2000. The search

warrant authorized law enforcement officers to seize specified property at the DJPC

offices including but not limited to:

       - “Pamphlets, papers and flyers that are protest related;”

       - “Posters that are protest related;”

       - “Videotape and still photographs of persons protesting any organization or
       business;” and

       - “Membership lists for Denver Peace & Justice Committee”

Fourth Amended Complaint ¶34, Aplt. App. at 131.

       Plaintiff-Appellant Espinosa was not present when the police arrived to execute

the search warrant. He was contacted by his wife, Danielle Short, who is an employee of

AFSC and was present at the time the police arrived. Espinosa decided to come to the

office, arriving at about 1:30 p.m. while the search was already underway.2 When

Espinosa entered the DJPC office, he was immediately approached by two police officers

who asked him why he was there. Espinosa explained that he was DJPC’s office

       2
        The total duration of the search was alleged to have been approximately 3 ½
hours. Fourth Amended Complaint ¶37, Aplt. App. at 132.

                                               -4-
administrator and that his wife worked for the AFSC and was present. The police officers

asked him for identification, which he provided. After Espinosa provided his

identification, Defendant Police Officer Ortiz immediately put his hands on Espinosa and

conducted a pat-down search without Espinosa’s consent. While conducting the frisk,

Officer Ortiz asked Espinosa if he had any knives or other weapons. Espinosa said he did

not. Officer Ortiz’s frisk failed to disclose any weapons.

       Before Espinosa arrived at the office, everyone present had been asked to provide

identification to the police, but none had been frisked. Espinosa was the only one to be

frisked, and he was the only one present with dark skin and an apparent Hispanic

appearance. Plaintiff-Appellees allege that at the time Officer Ortiz conducted the pat-

down frisk, he did not have objective and articulable facts that would make a reasonable

person suspect that Espinosa was armed, nor those that would make a reasonable person

suspect Espinosa was involved in or about to be involved in criminal activity. Fourth

Amended Complaint ¶¶61-62, 98, Aplt. App. at 138, 144.

       Upon completion of the search, police officers confiscated membership lists,

mailing lists, phone tree lists, pamphlets, posters, newsletters, articles and other written

material. DJPC filed suit in the Federal District Court for the District of Colorado,

contending that the search and seizure violated its rights under the First and Fourth

Amendments and the Privacy Protection Act of 1980. Espinosa joined the action to seek

nominal damages and attorney’s fees from Officer Ortiz for the allegedly suspicionless

                                              -5-
pat-down frisk during the search of the DJPC office.

                                               II

                                 PROCEDURAL HISTORY

         Espinosa brought his action against Officer Ortiz seeking nominal damages

pursuant to 42 U.S.C. §1983 and attorney’s fees pursuant to 42 U.S.C. §1988. Because

the claim involved questions of federal substantive law under the Fourth Amendment and

42 U.S.C. §1983, the District Court had subject matter jurisdiction pursuant to 28 U.S.C.

§1331.

         Defendant Officer Ortiz moved to dismiss Espinosa’s claims against him under

Fed. R. Civ. P. 12(b)(6) based on qualified immunity. He filed his motion to dismiss on

July 25, 2003, and it was briefed and argued in the District Court on October 8, 2003.

         That day, in an oral ruling the District Judge stated that our decision in United

States v. Ward, 682 F.2d 876 (10th Cir. 1982) clearly establishes that once the police

possess a warrant to search the premises only, the Fourth Amendment prohibits the search

of persons found on the premises, regardless of that person’s relationship to the premises,

unless the police have a reasonable suspicion that the person is armed. Aplt. App. at 206.

She also noted as persuasive the decision in Munz v. Ryan, 752 F.Supp. 1537 (D.Kan.

1990), recognizing that the law of the 10th Circuit clearly prohibited the personal search

of a homeowner during the execution of a search warrant at her home, absent a

recognized exception to the warrant requirement.

                                               -6-
       At least at this stage of the litigation, the Judge found that there was no evidence to

support a reasonable suspicion that Espinosa was armed. She therefore denied Ortiz’s

motion to dismiss and denied Ortiz’s request that discovery be stayed pending appeal.

Ortiz appealed. Aplt. App. at 190.

       This Court has appellate jurisdiction pursuant to 28 U.S.C. §1291. The District

Court’s order filed October 20, 2003, denying Ortiz’s motion to dismiss on qualified

immunity grounds is a final collateral order for the purposes of §1291 under the holding

of Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), because it deprives Officer Ortiz of

immunity from the burdens of discovery and trial. DJPC’s claims are not before this

court. The dispositive question in this appeal is whether the District Court correctly

denied Ortiz’s motion to dismiss.

                                             III

                               STANDARD OF REVIEW

       All issues raised on appeal are questions of law that arise in the context of Ortiz’s

motion to dismiss based on qualified immunity. This Court reviews de novo the district

court’s decision on a motion to dismiss under Fed. R. Civ. P. 12(b)(6) based on qualified

immunity. See Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th

Cir. 1999). The court must view the factual allegations in the light most favorable to

Plaintiff, and should not dismiss the complaint unless it appears that Plaintiff cannot

prove any set of facts that would entitle him to relief. See Sutton, 173 F.3d at 1236.

                                             -7-
       In evaluating claims of qualified immunity, we must first determine whether

Defendant Ortiz’s actions, as alleged in the complaint, violated a constitutional or

statutory right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). If we answer that question

affirmatively, we then must determine whether the right allegedly violated has been

“clearly established in a more particularized, and hence more relevant sense: The contours

of the right must be sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Id. (quoting Anderson v. Creighton, 483 U.S., 635,

640 (1987)).

                                             IV

                                      DISCUSSION

       We are satisfied that Espinosa has sufficiently alleged that he was frisked without

reasonable suspicion that he was involved in any criminal activity or that he possessed a

weapon.3 Ortiz argues that for reasons of officer safety and general efficiency in

executing a lawful search warrant, police should have the authority to frisk persons who

“enter” an area where a search warrant is being executed, even without such reasonable

       3
         See Fourth Amended Complaint at ¶ 61 (“When he conducted the pat-down frisk,
Ortiz was not in possession of objective and articulable facts that would make a
reasonable person suspect that Espinosa was involved or about to be involved in criminal
activity.”). Aplt. App. at 138. See also Fourth Amended Complaint at ¶62 (“Ortiz was
not in possession of objective and articulable facts that would make a reasonable person
suspect that Espinosa was armed.”), ¶98 (“Ortiz did not have reasonable grounds to
suspect that Espinosa was armed. Nevertheless, Ortiz subjected Espinosa to a frisk.”).
Aplt. App. at 138, 144.

                                             -8-
suspicion.

       This Circuit has never articulated such a principle and will not do so now. As the

Supreme Court stated in Katz v. United States:

       ‘Over and again, this Court has emphasized that the mandate of the Fourth
       Amendment requires adherence to judicial processes,’ United States v. Jeffers,
       342 U.S. 48, 51 [(1951)] and that searches outside the judicial process, without
       prior approval by a judge or magistrate, are per se unreasonable under the
       Fourth Amendment – subject only to a few specifically established and well-
       delineated exceptions.

389 U.S. 347, 357 (1967). In Terry v. Ohio, 392 U.S. 1 (1963), it was held that the

officer “had reasonable grounds to believe that [the individual] was armed and dangerous,

and it was necessary for the protection of himself and others to take swift measures to

discover the true facts and neutralize the threat of harm if it materialized . . . .” Id. at 30.

In Terry, the Court concluded that:

       We merely hold today that where a police officer observes unusual conduct
       which leads him reasonably to conclude in light of his experience that
       criminal activity may be afoot and that the persons with whom he is dealing
       may be armed and presently dangerous, where in the course of
       investigating this behavior he identifies himself as a policeman and makes
       reasonable inquiries, and where nothing in the initial stages of the encounter
       serves to dispel his reasonable fear for his own or others’ safety, he is
       entitled for the protection of himself and others in the area to conduct a
       carefully limited search of the outer clothing of such persons in an attempt
       to discover weapons which might be used to assault him. Such a search is a
       reasonable search under the Fourth Amendment, and any weapons seized
       may properly be introduced in evidence against the person from whom they
       were taken.

Id. at 30-31 (emphasis added).

       Ybarra v. Illinois, 444 U..S. 85, 93-94 (1979), emphasized the narrow scope of the

                                               -9-
Terry exception, holding that nothing in Terry authorizes a “generalized cursory search

for weapons.” Id. at 94. The Ybarra Court further expressly held that “[t]he ‘narrow

scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable

belief or suspicion directed at the person to be frisked, even though that person happens

to be on premises where an authorized narcotics search is taking place.” Id. at 94

(emphasis added). The emphasized statement just quoted (“even though that person

happens to be on premises where an authorized narcotics search is taking place.”) directly

rejects the principal argument of Ortiz: that the law was uncertain as to the absence of an

exception permitting a frisk where the object of the “frisk” happens to be on premises

being searched.

       Our court has focused further on the limitations of a police officer’s authority to

frisk individuals in analogous circumstances in United States v. Sporleder, 635 F.2d 809

(10th Cir. 1980) and United States v. Ward, 682 F.2d 876 (10th Cir. 1982). In Sporleder,

we invalidated a police officer’s pat-down frisk of an individual who was present at the

site of a suspected meth lab, a site where officers were executing a search warrant. Id.

We said that Terry v. Ohio does not permit a generalized “cursory search for weapons”

and that “[e]xcept as it may relate to an officer’s reasonable belief that a person is armed

and presently dangerous, it is of no consequence that the person is an object of the

government’s suspicion that led to the search of the premises.” Sporleder, 635 F.2d

supra at 814. In Ward, law enforcement officers executed a search warrant at Ward’s

                                            -10-
home and frisked Ward “as a routine precaution.” Ward, supra, 682 F.2d at 880. Even

though the law enforcement officers had probable cause to believe Ward was committing

a federal offense, he was not under arrest and the pat-down frisk was invalid because “it

was not supported by a reasonable suspicion that he was armed and presently dangerous.”

Id.

       Ortiz urges that the execution of a search warrant involves risks of harm to law

enforcement officers even when no special danger to the police is evidenced in the record.

This risk of harm, he urges, should provide police with the authority to “routinely frisk”

any persons whom they encounter and who seek to “enter” an area where a lawful search

warrant is being executed. The Supreme Court has noted that during the execution of a

search warrant, “[t]he risk of harm to both the police and the occupants is minimized if

the officers routinely exercise unquestioned command of the situation.” Michigan v.

Summers, 452 U.S. 692, 702-3 (1981)).

       The Court concluded in Summers, and recently stated again in Muehler, et al v.

Mena, 125 S. Ct. 1465 (2005) , that police officers have a “categorical” authority to

detain persons found on premises subject to a lawful search warrant for “contraband”

materials, incidental to the officers’ execution of the warrant. Muehler, supra at 1470.

The Court in Muehler also held that “[i]nherent in Summers’ authorization to detain an

occupant of the place to be searched is the authority to use reasonable force to effectuate

the detention.” Id. In sum, Ortiz’s argument is that the authority to detain extends fairly

                                            -11-
broadly to the exercise of search warrants such as the one in question here, and that an

officer’s search of an individual by means of a “routine frisk” is appropriate in

conjunction with such a detention.

       Ortiz argues that the instant case is analogous to the situation we confronted in

United States v. Ritchie, 35 F.3d 1477 (10th Cir. 1994), where FBI agents detained the

occupant of premises being searched and subjected him to a pat-down frisk. Although the

focus of our inquiry in Ritchie was on the detention, rather than the frisk, Ortiz noted that

we acknowledged the frisk several times in our opinion. See id. at 1479 (noting that

police officers present at Mr. Ritchie’s residence while awaiting a search warrant stopped

Mr. Ritchie as he attempted to leave, explained that they would be detaining him while

they awaited a warrant to search his residence, and “performed a quick pat-down

search.”); See also id. at 1481 (“The facts here show that the agents never held Mr.

Ritchie at gunpoint, that they handcuffed him only after formal arrest, that no agents used

physical force in his detention apart from the pat-down search for weapons, and that they

did not otherwise engage in strong arm tactics.”) While we made no explicit comment on

the reasonableness or unreasonableness of the pat-down search of Mr. Ritchie, we

expressly approved the officers’ actions preventing him from leaving the scene, noting

this was permissible to prevent his returning later to try to thwart the execution of the

warrant. See id. at 1484 (quoting 2 LaFave, SEARCH AND SEIZURE §4.9(e) at 306.).

Based upon this logic, Ortiz asserts that a person who seeks to “enter” an area where a

                                            -12-
warrant is being executed could pose a similar threat to that of a person who leaves and

returns to the scene, and that police ought to be permitted to both detain and search such a

person even without reasonable, individualized suspicion.

       Ortiz’s reliance on Summers, Muehler and Ritchie is problematic. One significant

difficulty, which Ortiz himself acknowledges with respect to Ritchie, is the fact that we

there did not actually analyze the frisk at all, focusing instead on the temporary detention

of the suspect. Likewise, neither Summers nor Muehler refer to a frisk at all. The Court’s

recent Muehler decision deals instead with Ms. Muehler’s detention and handcuffing by

police officers executing a search warrant and her interrogation by an Immigration and

Naturalization Service officer who was accompanying the police. The Court’s decision in

Summers, 452 U.S. supra at 695 n. 4, upon which both Ritchie and Muehler were largely

based, expressly warned us that the “seizure” or detention issue “should not be confused

with the ‘search’ issue presented in Ybarra v. Illinois.” Here, unlike in Muehler,

Summers or Ritchie, we are squarely confronted with the pat-down search of Mr.

Espinosa, without his consent and without reasonable individualized suspicion.

       A further distinction, of potentially even greater significance, is the nature of the

search warrant being executed. In Ritchie, police were searching Mr. Ritchie’s property

for the proceeds of an armed robbery, suspected to have been committed by Mr. Ritchie

himself just one day earlier. Ritchie, 35 F.3d supra at 1479. In Muehler, police were

investigating a gang-related, drive-by shooting and searching for weapons and evidence

                                             -13-
of gang membership on a property where at least one and possibly more armed gang

members resided. Muehler, 125 S. Ct. supra at 1468. Here police were not searching for

weapons, the proceeds of a violent crime, or contraband. Rather, the warrant in this case

authorized officers to search for potentially First Amendment protected material:

pamphlets, flyers, posters, photographs and membership lists. Police were investigating

an incident of alleged vandalism, but neither DJPC, Espinosa, nor anyone else at the

scene was necessarily implicated in the incident.

       In Summers, the Court expressly noted that its reasoning authorizing a temporary

detention did not apply where the warrant authorizes a search for mere evidence at the

premises of a party whose possession of the materials sought is not a crime. See

Summers, 452 U.S. supra at 705 n. 20 (citing Zurcher v. Stanford Daily, 436 U.S. 547,

560 (1978)). As we explained in Ritchie, 35 F.3d supra at 1483, the Zurcher case

“involved the validity of third-party searches, where there is ‘probable cause to believe

that fruits, instrumentalities or other evidence of crime is located on identified property

but [there is no] probable cause to believe that the owner or possessor or the property is

himself implicated in the crime.’” (quoting Zurcher, 436 U.S. at 553). We concluded in

Ritchie that this footnote from Summers “stems from a concern that in some instances the

existence of a warrant based on probable cause would not give the police ‘an easily

identifiable basis for determining that suspicion of criminal activity justifies a detention

of [the] occupant.’”

                                             -14-
       In Ritchie, we also noted the Court’s reference in Summers to searches for

“contraband” and concluded that to the extent the Summers Court restricted its holding to

warrants authorizing the search for “contraband,” the definition of “contraband” was

broad enough to include the stolen property Mr. Ritchie was alleged to have in his

possession. The Court in Muehler, 125 S.Ct. supra at 1470 n. 2, reiterated the restriction

of police officers’ authority to detain occupants of a premises being searched to the case

“when a neutral magistrate has determined police have probable cause to believe

contraband exists[.]”

       In sum, we hold that Muehler, Summers, and Ritchie do not support an officer’s

categorical authority to conduct a pat-down search of any person who seeks to enter an

area where a search warrant is being executed. This is not to say such a search would

never be permitted. Although the Muehler Court did not discuss any “frisk” of Ms.

Muehler, it did approve of handcuffing her and holding her at gunpoint, which are

significant extensions beyond an ordinary, peaceable detention as was the case in

Summers and Ritchie. Importantly, though, the Court stressed that these extreme

measures were justified by the circumstances in Muehler:

       But this was no ordinary search. The governmental interests in not only
       detaining, but using handcuffs, are at their maximum when, as here, a warrant
       authorizes a search for weapons and a wanted gang member resides on the
       premises. In such inherently dangerous situations, the use of handcuffs
       minimizes the risk of harm to both officers and occupants. Cf Summers, supra
       at 702-703 (recognizing that the execution of a warrant to search for drugs
       "may give rise to sudden violence or frantic efforts to conceal or destroy
       evidence.") Though the safety risk inherent in executing a search warrant for

                                           -15-
          weapons was sufficient to justify the use of handcuffs, the need to detain
          multiple occupants made the use of handcuffs all the more reasonable. Cf
          Maryland v. Wilson, [519 U.S. 408][,]. . . 414 [(1997)] (noting that "danger to
          an officer from a traffic stop is likely to be greater when there are passengers
          in addition to the driver in the stopped car").

Muehler, 125 S. Ct. supra at 1470-71.

          We hold that the law was sufficiently clear at the time Ortiz conducted the pat-

down search of Espinosa that Ortiz may not claim qualified immunity. The Supreme

Court recently reviewed the legal standard for determining whether a government official

is entitled to qualified immunity in Hope v. Pelzer, 536 U.S. 730 (2002), stating:

          For a constitutional right to be clearly established, its contours must be
          sufficiently clear that a reasonable official would understand that what he is
          doing violates that right. That is not to say that an official action is
          protected by qualified immunity unless the very action in question has
          previously been held unlawful, but it is to say that in light of pre-existing
          law that unlawfulness must be apparent.

Id. at 739 (citations and internal quotations omitted). In discussing the degree of factual

similarity that is required to conclude that the law is clearly established, the Court noted

that all that is required is that prior case law provide “fair warning” that an officer’s

conduct would violate constitutional rights. Id. at 739-40. Thus, “officials can still be on

notice that their conduct violates established law even in novel factual circumstances.” Id.

at 741.

          The Supreme Court has articulated narrow grounds that permit police officers to

detain individuals who are present during the execution of a search warrant, without

running afoul of the Fourth Amendment. A detention, however, remains distinct from a

                                               -16-
search. In addition, based on the allegations of Espinosa’s complaint, it would have been

clear to the officers executing the search warrant at the DJPC office that the circumstances

of that search did not implicate the apprehension of danger or the presence of contraband

that may have permitted detention of persons present at the scene, pursuant to Summers.

Rather, the circumstances here fall squarely into a factual pattern where a pat-down search

of an individual would be prohibited absent reasonable, individualized suspicion. See

Ybarra, Sporleder and Ward. Officer Ortiz therefore cannot prevail on his defense of

qualified immunity on the basis of the circumstances he has averred.

       Accordingly, the order denying the motion to dismiss of Ortiz is

              AFFIRMED.

                                            -17-


537 U.S. 1098
CRAVINv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION.
No. 02-5633.
Supreme Court of United States.
December 16, 2002.

1
ante, p. 926, Petition for rehearing denied.


562 S.E.2d 271 (2002)
254 Ga. App. 351
BURKE
v.
KING.
No. A02A0455.
Court of Appeals of Georgia.
March 20, 2002.
*272 Larry B. Hill, La Fayette, for appellant.
John M. Giglio, Ringgold, for appellee.
JOHNSON, Presiding Judge.
In this custody dispute, Bennett Burke, the father of 18-year-old M.B.[1] and 14-year-old B.B., challenges the trial court's award of custody to Yvonne King, the children's maternal aunt. We granted the father's discretionary application to determine whether the trial court applied the correct standards of law in rendering its decision. Because the trial court's orders fail to find that parental custody in Burke would harm B.B., we reverse the grant of custody to King and remand the case for the trial court to consider the issues consistent with our opinion.
When Bennett Burke and Deborah Burke divorced in December 1996, Deborah Burke obtained custody of the couple's two minor children, then ages fourteen and ten. After the divorce, Bennett Burke regularly paid *273 $200 per week in child support and telephoned the children every two or three days, but visited them only sporadically. He was then living in Tennessee and visited the children about ten to twenty times over the next three and a half years. On June 14, 2000, Deborah Burke died, six weeks after discovering that she had cancer. King, Deborah Burke's sister, helped care for her and the two children when her death became imminent. It was Deborah Burke's "last dying wish" that the children go to her sister. After her death, the children took up residency at King's house. When Bennett Burke sought to be reunited with his children, King said that she did not make them go.
On June 29, 2000, Burke, then a resident of Tennessee, filed a petition for a writ of habeas corpus in the Superior Court of Catoosa County alleging that King was illegally detaining his children. King filed an answer to the writ. A hearing was scheduled, and on the day of the hearing King filed a petition seeking custody. After this hearing, the trial court entered an order granting temporary custody to King. Nearly six months later, the trial court held a second hearing on King's petition for custody. By that time, M.B. was no longer a minor, and she and her younger brother had been living continuously and exclusively with King. Subsequently, the trial court issued a final order that awarded King the sole legal and physical custody of B.B. The order noted: "[t]he Court makes no finding that the Defendant is unfit, but finds that it is in the best interest of [B.B.] that custody be awarded to the Plaintiff, pursuant to the O.C.G.A. § 19-9-2."
After Burke unsuccessfully moved for reconsideration, the trial court, without hearing any further evidence, entered a second order containing additional findings. In this order, the trial court found that "the father has failed to maintain reasonable contact with the child" and that B.B. "has developed a close, strong familial bond with [King]...." The trial court also found that Burke physically abused Deborah Burke and M.B. in the presence of B.B.[2] and verbally abused B.B. over the telephone. The order continues:
The Court further finds that the Plaintiff has overcome the statutory presumption of parental custody in that by clear and convincing evidence, Plaintiff has shown that the child will suffer psychological and emotional harm if custody is granted to the Defendant-Father. The Court also finds by clear and convincing evidence that a grant of custody to petitioner will best promote the child's welfare and happiness and therefore it is in the best interest of this child that custody be vested in Petitioner.
In 1996, the Georgia General Assembly enacted the parent-third party custody statute.[3] This statute governs custody disputes between a biological parent and a limited number of third parties who are related to the child, including, as here, a maternal aunt. The statute "establishes a rebuttable presumption that parental custody is always in the child's best interest, thus favoring the biological parent over the third party."[4] Implicit in this statute are three presumptions: (1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of his or her child, and (3) the child's best interest is to be in the custody of a parent.[5] To overcome the statutory presumption in favor of parental custody, the third-party relative "must prove by clear and convincing evidence that the child will suffer physical or emotional harm if custody were awarded to the biological parent. Once this showing is made, the third party must then show that an award of custody to him or her *274 will best promote the child's welfare and happiness."[6]
The Supreme Court of Georgia has defined harm to mean "either physical harm or significant, long-term emotional harm; we do not mean merely social or economic disadvantage."[7] In addition, the Supreme Court noted that while the death of a parent, divorce, or a change in home and school will often be difficult for a child, some level of stress and discomfort may be warranted when the goal is reunification of the child with the parent.[8]
In the present case, the record is devoid of any evidence showing that B.B. would sustain any physical harm. Nor was a finding made that the minor would suffer significant, long-term emotional harm. During the period between his mother's death in June and the December hearing, B.B. acknowledged that his father had tried to visit with him, but that he chose not to be with his father. B.B. had spoken with his father four or five times "but every time I end up like hanging up crying or something." But no explanation was forthcoming as to precisely what had upset the minor during each of those calls. Notwithstanding the trial court's finding of emotional abuse "over the telephone," such conduct apparently consisted of Burke's injudicious or intemperate comparisons between Deborah Burke and his present wife. According to B.B., his father "puts down my mom."
We note that this case presents a difficult situation for the trial court and all the parties involved. According to the record, Burke has made efforts to be a good father. His multiple telephone calls went unreturned, and the terms for visitation as set forth in the divorce decree were completely disregarded by King after the death of Deborah Burke. Moreover, it is undisputed that Burke and his wife uprooted themselves from Tennessee and purchased a home in Catoosa County to enable B.B. to continue to attend the same high school and to be near his friends. On the other hand, the minor at issue is 14 years old, and both he and his maternal aunt are attempting to comply with the "last dying wish" of B.B.'s mother that he remain with his maternal aunt. Although a last dying wish is not controlling, it has muddled the issues in this case.
Examining the trial court's orders in light of OCGA § 19-7-1(b.1) and Clark v. Wade,[9] it is clear that the trial court's findings do not satisfy the requisites necessary to award custody of a minor to a third party rather than a biological parent. The first order makes no finding whatsoever that Burke is an unfit parent and explicitly declines to do so. The only mention of harm to B.B. is verbal abuse over the telephone, but there is no mention of the type or severity of the verbal abuse. And, the second and final order makes a conclusory statement that the minor will suffer psychological and emotional harm if custody is granted to Burke. The order then states that a grant of custody to King will best promote the minor's welfare and happiness, and therefore it is in the best interest of this minor that custody be vested in King. In essence, the trial court commingled different theories of law without substantiating either with explicit findings of fact.[10]
While the trial court's order does find that B.B. "will suffer psychological and emotional harm," the order does not find that B.B. will undergo "significant, long-term emotional harm." And, as the Supreme Court noted, after the death of a parent, "some level of stress and discomfort may be warranted when the goal is reunification of the child with the [surviving] parent."[11] The trial court's order is silent as to whether the anticipated psychological harm would be attributable to the inherent stress of reunification or would be attributable to some type of emotional abuse inflicted by Burke.
*275 In light of the inconsistency between the two orders, the absence of any finding of Burke's parental unfitness, and the absence of a finding supported by specific facts that establish by clear and convincing evidence that B.B. will suffer physical harm or significant, long-term emotional harm, we must find that the trial court abused its discretion in awarding custody to King.[12] We remand the case with direction that the trial court determine upon a clear and convincing evidence standard whether parental custody in Burke would harm B.B., as that word has been defined in Clark v. Wade, and, if so, whether an award of custody to King would be in B.B.'s best interest. If the trial court determines that custody should be awarded to King, the trial court should then delineate Burke's visitation rights.
Judgment reversed and case remanded.
BLACKBURN, C.J., and MILLER, J., concur.
NOTES
[1]  Since M.B. is 18 years old, she is no longer at issue in this case.
[2]  The sole evidence of any physical abuse occurred during an isolated incident in late November 1996, when Deborah and Bennett Burke engaged in a physical struggle over some savings bonds that were inside the family safe. The divorce decree, entered a few days later, would award these bonds to Bennett Burke, who apparently had opened the safe to retrieve them when he was suddenly confronted by his angry wife.
[3]  OCGA § 19-7-1(b.1).
[4]  Clark v. Wade, 273 Ga. 587, 590(II), 544 S.E.2d 99 (2001).
[5]  Id. at 593, 544 S.E.2d 99.
[6]  Id. at 599(V), 544 S.E.2d 99.
[7]  Id. at 598(IV), 544 S.E.2d 99.
[8]  Id.
[9]  Id.
[10]  See Grantham v. Grantham, 269 Ga. 413, 414, 499 S.E.2d 67 (1998).
[11]  Clark, 273 Ga. at 598(IV), 544 S.E.2d 99.
[12]  See Stalvey v. Bates, 251 Ga.App. 895, 555 S.E.2d 477 (2001).