Paez v. Nutsch

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

BENJAMIN PAEZ, 4:20CV3108

Plaintiff,

MEMORANDUM

vs. AND ORDER

M. J. NUTSCH,

NSP Troop E. Badge # 321,

Defendant.

I. INTRODUCTION

Plaintiff Benjamin Paez (“Paez”), a state prisoner who appears pro se, alleges

Defendant, M.J. Nutsch (“Nutsch”), a Nebraska State Patrol Trooper who is sued in

his individual capacity only, conducted an unlawful search of Plaintiff’s vehicle and

person, and unlawfully seized Plaintiff’s cell phone from inside the vehicle, during

a traffic stop on May 27, 2020.

Liberally construing the allegations of Paez’s Amended Complaint, this is a

42 U.S.C. §1983 action in which it is claimed that Nutsch violated Paez’s Fourth

and Fourteenth Amendment rights by (1) searching Paez’s vehicle without a search

warrant, (2) seizing Paez’s cell phone without a search warrant, (3) searching Paez’s

person without a search warrant or pursuant to an arrest, and (4) searching Paez’s

person in an unreasonable manner by conducting a roadside strip search. See

Memorandum and Order entered June 28, 2021 (Filing 18), on initial review of the

Amended Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A.

This matter is now before the court on Nutsch’s motion for summary judgment

(Filing 38), in which he claims qualified immunity. Upon careful review, the court

finds the motion should be granted with respect to the warrantless search of Paez’s

vehicle and warrantless seizure of his cell phone, but should be denied with respect

to the warrantless strip search.

II. SUMMARY JUDGMENT STANDARD

“A party may move for summary judgment, identifying each claim or

defense—or the part of each claim or defense—on which summary judgment is

sought. The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law. The court should state on the record the reasons for granting or

denying the motion.” Fed. R. Civ. P. 56(a).

In reviewing a motion for summary judgment, the court views the facts in the

light most favorable to the non-moving party and gives that party “the benefit of all

reasonable inferences that can be drawn from the record.” State Nat’l Ins. Co., Inc.

v. Washington Int’l Ins. Co., 304 F. Supp. 3d 827, 831-32 (D. Neb. 2018) (quoting

Minnesota ex rel. N. Pac Ctr., Inc. v. BNSF Ry. Co., 686 F.3d 567, 571 (8th Cir.

2012)). It is not the court’s function to weigh evidence in the summary judgment

record to determine the truth of any factual issue; the court merely determines

whether there is evidence creating a genuine issue for trial. See Bell v. Conopco,

Inc., 186 F.3d 1099, 1101 (8th Cir. 1999).

“There is a genuine dispute when the evidence is such that a reasonable jury

could return a verdict for the non-moving party.” Dick v. Dickinson State Univ., 826

F.3d 1054, 1061 (8th Cir. 2016) (internal quotations and citations omitted). “A fact

is material if it ‘might affect the outcome of the suit.’” Id. (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

The moving party bears the initial responsibility of informing the court of the

basis for the motion, and must identify those portions of the record which the moving

party believes show the lack of a genuine issue of material fact. Torgerson v. City of

Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the moving party does

so, the burden then shifts to the nonmoving party, who “may not rest upon mere

allegation or denials of his pleading, but must set forth specific facts showing that

there is a genuine issue for trial.” Anderson, 477 U.S. at 256. If the record taken as

a whole could not lead a rational trier of fact to find for the nonmoving party,

summary judgment should be granted. Smith-Bunge v. Wisconsin Cent., Ltd., 946

F.3d 420, 424 (8th Cir. 2019).

The initial burden on a moving party “may be discharged by ‘showing’—that

is, pointing out to the district court—that there is an absence of evidence to support

the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986);

see also Bedford v. Doe, 880 F.3d 993, 996 (8th Cir. 2018) (“The moving party can

satisfy its burden in either of two ways: it can produce evidence negating an essential

element of the nonmoving party’s case, or it can show that the nonmoving party does

not have enough evidence of an essential element of its claim to carry its ultimate

burden of persuasion at trial.”); Johnson v. Wheeling Mach. Prods., 779 F.3d 514,

517 (8th Cir. 2015) (moving party need not produce evidence showing “the absence

of a genuine issue of material fact.”).

In response to the moving party’s showing, the nonmoving party’s burden is

to produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller

v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v.

Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party

“must do more than simply show that there is some metaphysical doubt as to the

material facts, and must come forward with specific facts showing that there is a

genuine issue for trial.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015)

(quoting Torgerson, 643 F.3d at 1042).

III. QUALIFIED IMMUNITY

Qualified immunity shields officials from civil liability in a 42 U.S.C. §1983

action when their conduct “does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Morgan v.

Robinson, 920 F.3d 521 (8th Cir. 2019) (quoting Pierson v. California, 555 U.S.

223, 231 (2009)). Qualified immunity involves a two-step analysis: “(1) whether the

facts shown by the plaintiff make out a violation of a constitutional or statutory right,

and (2) whether that right was clearly established at the time of the defendant’s

alleged misconduct.” Id. at 523 (quoting Nord v. Walsh Cty., 757 F.3d 734, 738 (8th

Cir. 2014)). Unless both of these questions are answered affirmatively, a defendant

is entitled to qualified immunity. Moreover, courts are permitted to exercise their

sound discretion in determining which of the two prongs should be addressed first.

Id. (quoting Nord, 757 F.3d at 738-39).

“A clearly established right is one that is ‘sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.’”

Id. (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). The clearly established

right should not be defined at a high level of generality, but instead must be

particularized to the facts of the case. Id. There does not need to be a case directly

on point, but existing precedent “must have placed the statutory or constitutional

question beyond debate.” Id. at 524 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011)). Qualified immunity gives government officials “breathing room” to make

reasonable but mistaken judgments, and protects “all but the plainly incompetent or

those who knowingly violate the law.” Id. (quoting Stanton v. Sims, 571 U.S. 3, 6

(2013) (per curiam)).

“Qualified immunity is an affirmative defense for which the defendant carries

the burden of proof. The plaintiff, however, must demonstrate that the law is clearly

established.” Sparr v. Ward, 306 F.3d 589, 593 (8th Cir. 2002); see Creighton v.

Anderson, 922 F.2d 443, 447 (8th Cir. 1990) (“Once the plaintiff has demonstrated

that the law governing the plaintiffs’ rights was clearly established at the time of the

defendant’s acts, the defendant has the burden of proof with respect to all other

elements of the qualified immunity defense.”).

IV. SUMMARY JUDGMENT PROCEDURE

A party asserting that a fact cannot be or is genuinely disputed must support

the assertion by:

(A) citing to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the

motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

This court’s local rules further specify that “[t]he moving party must include

in the brief in support of the summary judgment motion a separate statement of

material facts about which the moving party contends there is no genuine issue to be

tried and that entitles the moving party to judgment as a matter of law.” NECivR

56.1(a)(1). “Properly referenced material facts in the movant’s statement are

considered admitted unless controverted in the opposing party’s response.” NECivR

56.1(1)(b)(1) (underlining omitted).

In this case, Paez has failed to make any response to Nutsch’s motion for

summary judgment. “Failure to file an opposing brief is not considered a confession

of a motion but precludes the opposing party from contesting the moving party’s

statement of facts.” NECivR 7.1(b)(1)(C). Consequently, Nutsch’s statement of

material facts (Filing39, pp. 2-9, ¶¶ 1-61), which finds support in the record, will be

deemed admitted for purposes of deciding the motion for summary judgment.

Although Paez is proceeding pro se, he is bound by and must comply with all local

and federal procedural rules. NEGenR 1.3(g).

V. UNDISPUTED MATERIAL FACTS

The court finds there is no genuine dispute as to the following material facts

which are properly referenced in separate numbered paragraphs in Nutsch’s brief in

support of his motion for summary judgment:

1. On May 27, 2020, M.J. Nutsch was on duty with the Nebraska State Patrol,

in full uniform, displaying the badge of office and operating a marked Nebraska

State Patrol unit in Dawes County, Nebraska. (Nutsch Aff. [Filing 39-1] p. 1, ¶ 1)

2. He was operating on a normal shift that began at 7:30 a.m., patrolling north

on Nebraska Highway 71. (Nutsch Aff. p. 1, ¶ 2)

3. While patrolling northbound, Nutsch observed a blue 2006 Chevrolet

Impala travelling southbound Highway 71. (Nutsch Aff. p. 1, ¶ 3)

4. The Chevrolet Impala was displaying Nebraska license plate number 21-

GF80. (Nutsch Aff. p. 1, ¶ 4)

5. As Nutsch viewed the vehicle, he observed, through his training and

experience, the vehicle to be speeding. (Nutsch Aff. p. 2, ¶ 5)

6. He activated his patrol unit’s RADAR and determined the vehicle to be

traveling 84 miles per hour in a 65 mph speed limit zone. (Nutsch Aff. p. 2, ¶ 6)

7. Nutsch caught up with the Chevrolet Impala and conducted a traffic stop

for speed violations near mile-marker 121 at approximately 1:13 p.m. (Nutsch Aff.

p. 2, ¶ 7)

8. He exited his patrol vehicle and approached the Chevrolet Impala on the

driver’s side. (Nutsch Aff. p. 2, ¶ 8; Ex. A [Filing 40 attachment1])

9. While approaching the vehicle, Nutsch observed the vehicle to be occupied

by a male driver, a front-seat female passenger, and a back-seat female passenger.

(Nutsch Aff. p. 2, ¶ 9; Ex. A)

10. During this time, the male driver had rolled down his driver’s side window

and had begun speaking to Nutsch about his concern for his back-seat female

passenger’s health. (Nutsch Aff. p. 2, ¶ 10; Ex. A)

11. The male driver indicated that the back seat female passenger was his

mother and that she was sick. (Nutsch Aff. p. 2, ¶ 11; Ex. A)

12. While speaking to the male driver, Nutsch observed his behavior to be

distraught. (Nutsch Aff. p. 2, ¶ 12)

13. Upon reaching the vehicle, Nutsch viewed multiple air fresheners

throughout the passenger area. (Nutsch Aff. p. 2, ¶ 13)

14. He requested the male driver to exit the vehicle due to the alleged health

issue of the driver’s mother, as well as the driver’s behavior. (Nutsch Aff. p. 2, ¶ 14)

15. Once outside the vehicle, Nutsch continued talking to the male driver and

conducted a brief weapons frisk. (Nutsch Aff. p. 2, ¶ 15; Ex. A)

16. Following the frisk, Nutsch made contact with the driver’s mother.

(Nutsch Aff. p. 3, ¶ 16)

1 Exhibit A to the Affidavit of M. J. Nutsch is a DVD containing video from

the dashboard camera of his patrol unit.

17. He observed the driver’s mother to be alert and functioning. (Nutsch Aff.

p. 3, ¶ 17)

18. During Nutsch’s conversation with this passenger, she indicated that she

was having complications due to medication she was taking and that the medication

made her nauseous. (Nutsch Aff. p. 3, ¶ 18)

19. Nutsch asked her if she required medical attention or if she believed her

life to be in danger and she indicated that she would be fine. (Nutsch Aff. p. 3, ¶ 19;

Ex. A)

20. While talking to the passengers, Nutsch was able to identify them and

determine that they did not have any outstanding warrants at this time. (Nutsch Aff.

p. 3, ¶ 20)

21. He requested the male driver to sit with him in the patrol unit. (Nutsch

Aff. p. 3, ¶ 21; Ex. A)

22. Nutsch identified the male driver to be Benjamin Paez, Date of Birth –

July 2, 1979. (Nutsch Aff. p. 3, ¶ 22)

23. While talking with Paez, Nutsch observed a back passenger door open and

the Paez’s mother lean out of the vehicle. (Nutsch Aff. p. 3, ¶ 23)

24. Nutsch went to check on the safety of Paez’s mother and when he

approached the vehicle, he could detect an odor of marijuana emitting from the open

door of the vehicle. (Nutsch Aff. p. 3, ¶ 24; Ex. A)

25. Nutsch returned to his vehicle and confirmed that an odor of marijuana to

be present on Paez as well. (Nutsch Aff. p. 3, ¶ 25; Ex. A)

26. Due to the odor present in the vehicle and on Paez’s person, Nutsch began

a probable cause search, starting with Paez himself. (Nutsch Aff. p. 3, ¶ 26; Ex. A)

27. Paez was not happy with this search and indicated that he was not under

the influence of a drug. (Nutsch Aff. p. 3, ¶ 27)

28. Paez then accused Nutsch of lying about the odor in order to complete a

search. (Nutsch Aff. p. 4, ¶ 28; Ex. A)

29. Nutsch secured Paez in the secure area of the patrol unit as he continued

the search of the other two passengers. (Nutsch Aff. p. 4, ¶ 29, Ex. A)

30. As he talked to the front-seat female passenger, Paez’s mother made an

admission that there was a little roach on the floor of the car in the front passenger

area from when Paez smoked in the car the other day. (Nutsch Aff. p. 4, ¶ 30; Ex.

A)

31. While Nutsch conducted his search of the other two passengers, Paez made

a free admission that there was a marijuana cigarette on the driver’s side floor near

his mother and claimed that he “totally forgot.” (Nutsch Aff. p. 4, ¶ 31; Ex. A)

32. Nutsch went back to the patrol unit to talk to Paez and Paez made the same

statement to him again. (Nutsch Aff. p. 4, ¶ 32)

33. At approximately 1:32 p.m., Trooper Jared Dusatko with the Nebraska

State Patrol arrived on scene to help Nutsch conduct a search of the vehicle. (Nutsch

Aff. p. 4, ¶ 33)

34. As Nutsch searched the driver’s area of the vehicle, a partially burnt

marijuana cigarette was located on the driver’s floor. (Nutsch Aff. p. 4, ¶ 34)

35. Nutsch viewed the contents of the cigarette and, in his training and

experience, recognized this to be marijuana. (Nutsch Aff. p. 4, ¶ 35)

36. As Nutsch searched the center console area of the vehicle, Nutsch

observed a black LG cell phone to be plugged in and resting on the console. (Nutsch

Aff. p. 4, ¶ 36)

37. Nutsch observed the phone screen to be on and unlocked, with a text

screen displayed in plain view. (Nutsch Aff. p. 4, ¶ 37)

38. Nutsch recognized, through his training and experience, the texts to be

organizing an illegal drug transaction. (Nutsch Aff. p. 5, ¶ 38)

39. That text message screen read:

Unknown sender: ey

Paez: Whuy

Unknown sender: u still lookin

Paez: Yeah

Unknown sender: How much

Paez: I’m at Crawford right now going to get my dog I’ll

be back in like half an hour to an hour.

Unknown sender: okay

Paez: It’s not all cut is it I heard that’s 2hut u had byt if

it’s good hells yeH.

(Nutsch Aff, p. 5, ¶ 39)

40. Trooper Dusatko continued the search of the vehicle while Nutsch began

speaking again with Paez. (Nutsch Aff. p. 5, ¶ 40)

41. During a brief interview with Paez, Paez indicated that he was working

for the WING Drug Task Force. (Nutsch Aff. p. 5, ¶ 41; Ex. A)

42. Paez indicated that he was trying to “work an angle” to help himself out

before he was to appear in court for sentencing on another case. (Nutsch Aff. p. 5, ¶

42; Ex. A)

43. Paez told Nutsch that he knew of a female that he could buy

methamphetamine from and that he had been in contact with her for WING. (Nutsch

Aff. p. 5, ¶ 43; Ex. A)

44. Nutsch asked Paez which Investigator he was working with at WING but

he was unable to say. (Nutsch Aff. p. 5, ¶ 44; Ex. A)

45. Paez then told Nutsch to contact Investigator Dodge, claiming Dodge

could confirm Paez’s work with WING. (Nutsch Aff. p. 5, ¶ 45; Ex. A)

46. Nutsch asked Paez why he was going to court on another case. (Nutsch

Aff. p. 5, ¶ 46; Ex. A)

47. Paez advised that it was for a charge of Possession of Methamphetamine

with Intent to Distribute as he had been caught with a half-ounce a few months

before. (Nutsch Aff. p. 5, ¶ 46; Ex. A)

48. Nutsch asked Paez if he had signed any paperwork to work with

investigators but he said that he couldn’t remember. (Nutsch Aff. p. 6, ¶ 47)

49. Nutsch called Investigator Dodge and advised Dodge of the conversation

he had with Paez. Investigator Dodge advised that Paez was not working with

WING. (Nutsch Aff. p. 6, ¶ 48; Ex. A)

50. Following this conversation, and due to Paez’s statements regarding the

texts Nutsch seized the cell phone as evidence due to the fact that it contained

information regarding the illegal sale of a controlled substance. (Nutsch Aff. p. 6, ¶

49)

51. When confronted with the information, Paez gave affirmation of this.

(Nutsch Aff. p. 6, ¶ 50)

52. When asked for further details about the person contacted for the illegal

transaction of a controlled substance, Paez began withholding information. (Nutsch

Aff. p. 6, ¶ 51)

53. Nutsch then seized the phone to uncover further evidence of the

manufacture, distribution, delivery, dispensary, possession or possession with intent

to distribute a controlled substance. (Nutsch Aff. p. 6, ¶ 52)

54. During the phone call with Investigator Dodge, Nutsch was also informed

that Paez was known to keep items of contraband inside items of clothing and under

his genitals. (Nutsch Aff. p. 6, ¶ 53)

55. As a result, Nutsch informed Paez of this and told him “The investigator I

just talked to told me that you like to put things down your pants.” (Nutsch Aff. p.

6, ¶ 54; Ex. A)

56. Paez replied by laughing out loud and stating, “I don’t have boxers on”

then asking, “Do you want me to open them?” (Nutsch Aff. p. 6, ¶ 54; Ex. A)

57. I replied “Yep” and Paez lowered his pants exposing himself.2 (Nutsch

Aff. p. 6, ¶ 54; Ex. A)

58. No items of contraband were located during this search which lasted

approximately 10 seconds. (Nutsch Aff. p. 7, ¶ 55; Ex. A)

59. Nutsch issued Paez citations for Speeding 16-20 mph over the speed limit

and for Possession of Marijuana one ounce or less. Nutsch then released Paez from

the scene. (Nutsch Aff. p. 7, ¶ 56)

60. Nutsch then travelled to the Alliance Police Department and placed all

evidence into the Alliance Temporary Evidence Lockers. (Nutsch Aff. p. 7, ¶ 57)

61. Nutsch later obtained a search warrant for Paez’s cellphone and sent the

cell phone to Lincoln, Nebraska for a complete search of the device. (Nutsch Aff. p.

7, ¶ 58)

VI. ANALYSIS

The Fourth Amendment, which is made applicable to states by the Fourteenth

Amendment, guarantees that the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated ….” U.S. Const. amend. IV. In establishing a violation of his Fourth

Amendment rights under 42 U.S.C. §1983, a plaintiff must show that a search or

seizure occurred and that it was unreasonable. Brower v. County of Inyo, 489 U.S.

593, 599 (1989). A Fourth Amendment “seizure” requires an intentional act by a

governmental actor. McCoy v. City of Monticello, 342 F.3d 842, 847 (8th Cir. 2003).

“Searches conducted outside the judicial process, without prior approval by

judge or magistrate, are per se unreasonable under the Fourth Amendment—subject

only to a few specifically established and well-delineated exceptions.” United States

v. Vore, 743 F.3d 1175, 1179 (8th Cir. 2014) (quoting Katz v. United States, 389

U.S. 347, 357 (1967)). In the Eighth Circuit, a plaintiff has the burden of proof in a

2 Nutsch states in his affidavit that Paez “voluntarily” lowered his pants.

(Nutsch Aff. p. 6, ¶ 54) This is a legal conclusion rather than a statement of fact.

However, Nutsch does not argue that Paez consented to the search of his person;

Nutsch instead contends there was probable cause for the search.

§ 1983 action claiming a Fourth Amendment violation for a warrantless search. Der

v. Connolly, 666 F.3d 1120, 1127 (8th Cir. 2012). However, the defendant has the

burden of producing evidence that an exception to the warrant requirement applies.

As the Seventh Circuit explained, “[e]ven if a presumption of

unreasonableness arises from the fact of a warrantless search [or entry],

that does not serve in a civil case to shift ‘the burden of proof in the

sense of the risk of nonpersuasion.’” Valance [v. Wisel, 110 F.3d 1269,

1279 (7th Cir. 1997)] (quoting Fed. R. Evid. 301). Instead, such

“presumption merely serves to impose on the defendant ‘the burden of

going forward with evidence to meet or rebut the presumption.’” Id.

(quoting Fed. R. Evid. 301). A defendant may satisfy this burden of

production by “produc[ing] evidence of consent or of some other

recognized exception to the warrant requirement.” Id. at 1278. “Yet

once the defendant has done so, ‘the ultimate risk of nonpersuasion

must remain squarely on the plaintiff in accordance with established

principles governing civil trials.’” Id. (quoting Ruggiero [v. Krzeminski,

928 F.2d 558, 563 (2d Cir. 1991))].

Id. at 1128. See also Paez v. Nutsch, No. 4:20CV3108, 2021 WL 2652456, at *4 (D.

Neb. June 28, 2021) (“A plaintiff claiming that her Fourth Amendment rights were

violated by a warrantless [search or] entry need not plead facts affirmatively showing

the absence of any exception to the warrant requirement, because the absence of such

an exception is not a part of the plaintiff’s prima facie case.”) (quoting Payne v.

Galie, 574 F. App’x 26, 27 (2d Cir. 2014)).

A. Traffic Stop and Search of Vehicle

“A traffic stop for a suspected violation of law is a ‘seizure’ of the occupants

of the vehicle and therefore must be conducted in accordance with the Fourth

Amendment.” Heien v. North Carolina, 574 U.S. 54, 60 (2014). “[T]he Fourth

Amendment permits an officer to initiate a brief investigative traffic stop when he

has a ‘particularized and objective basis for suspecting the particular person stopped

of criminal activity.’” Kansas v. Glover, 140 S.Ct. 1183, 1187 (2020) (quoting

United States v. Cortez, 449 U.S. 411, 417-18 (1981)). “A seizure for a traffic

violation justifies a police investigation of that violation.” Rodriguez v. United

States, 575 U.S. 348, 354 (2015). Paez does not challenge the lawfulness of the

traffic stop and, in fact, admits in his Amended Complaint that he was “travelling at

a high rate of speed to get [his] mom to medical attention” before he was pulled over

by Nutsch. (Filing 17, p. 2).

“Because addressing the infraction is the purpose of the stop, it may ‘last no

longer than is necessary to effectuate th[at] purpose.’” Rodriguez, 575 U.S. at 354

(quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). “[T]he Fourth Amendment

tolerate[s] certain unrelated investigations that [do] not lengthen the roadside

detention. Id. (citing Arizona v. Johnson, 555 U.S. 323, 327-28 (2009); Illinois v.

Caballes, 543 U.S. 405, 406 (2005)). However, a traffic stop “can become unlawful

if it is prolonged beyond the time reasonably required to complete th[e] mission’ of

issuing a … ticket.” Id. at 354-55 (quoting Caballes, 543 U.S., at 407). The seizure

remains lawful only “so long as [unrelated] inquiries do not measurably extend the

duration of the stop.” Id. at 355 (quoting Johnson, 555 U.S., at 333).

Here, the video evidence (Exhibit A) shows the traffic stop lasted less than 70

minutes, which was not an unreasonable length of time under the circumstances.

Nutsch first had a brief discussion with Paez, who seemed distraught. Nutsch

observed several air fresheners inside the vehicle. Nutsch requested Paez to exit the

vehicle. “[O]nce a motor vehicle has been legally detained for a traffic violation, the

police officers may order the driver out of the vehicle without violating the 4th

Amendment proscription of unreasonable searches and seizures.” Arizona v.

Johnson, 555 U.S. 323, 331 (2009). Nutsch then conducted a protective pat-down

search for weapons. “To justify a patdown of the driver or a passenger during a traffic

stop, … the police must harbor reasonable suspicion that the person subjected to the

frisk is armed and dangerous.” Arizona v. Johnson, 555 U.S. 323, 327 (2009). Paez,

however, does not challenge this search, which yielded nothing.

Following the weapons frisk, Nutsch had a conversation with Paez’s mother,

who was sitting in the backseat of Paez’s vehicle and reportedly was sick. After

determining that Paez’s mother did not require medical assistance, Nutsch asked

Paez to sit with him in the patrol car. When Nutsch saw Paez’s mother open a back

passenger door and lean out of the stopped vehicle, he went to check on her safety.

While doing so, he detected a faint odor of marijuana emitting from inside the

vehicle. Upon returning to the patrol car, he also smelled marijuana on Paez’s person

and determined there was probable cause to search the vehicle.

The Eighth Circuit has “repeatedly held that the odor of marijuana provides

probable cause for a warrantless search of a vehicle under the automobile exception”

and declined “to distinguish between a faint smell and a strong smell [of marijuana]

in determining whether the marijuana odor is enough to prolong a stop, ….” United

States v. Shumaker, 21 F.4th 1007, 1017-18 (8th Cir. 2021) (citations omitted). The

automobile exception permits the warrantless search of a vehicle if police “had

probable cause to believe the vehicle contained contraband or other evidence of a

crime before the search began.” U.S. v. Vore, 743 F.3d 1175, 1179 (8th Cir. 2014).

See United States v. Brown, No. 4:09CR3052, 2009 WL 10679481, at *3 (D. Neb.

Oct. 5, 2009) (officers’ detection of the smell of burnt marijuana emanating from

vehicle provided probable cause to search the vehicle in its entirety) (citing cases),

aff’d, 634 F.3d 435 (8th Cir. 2011). See also State v. Perry, 874 N.W.2d 36, 45-46

(Neb. 2016) (Nebraska’s decriminalization of possession of one ounce or less of

marijuana did not affect probable cause analysis). Here, the unrefuted evidence

supports Nutsch’s probable cause determination.3

B. Seizure of Paez’s Cell Phone

“It is well established that under certain circumstances the police may seize

evidence in plain view without a warrant.” Coolidge v. New Hampshire, 403 U.S.

443, 465 (1971). “Where the initial intrusion that brings the police within plain view

of such an article is supported, not by a warrant but by one of the recognized

exceptions to the warrant requirement, the seizure is also legitimate.” Id. “The plain

view doctrine authorizes the seizure of illegal or evidentiary items visible to a police

officer whose access to the object has some prior Fourth Amendment justification

and who has probable cause to suspect that the item is connected with criminal

activity.” Illinois v. Andreas, 463 U.S. 765, 771 (1983). “First, not only must the

item be in plain view, but its incriminating nature must also be immediately

3 As previously stated, the defendant in a § 1983 action has the burden of

producing evidence that an exception to the warrant requirement applies. See Fed.

R. Evid. 301 (“In a civil case, unless a federal statute or these rules provide

otherwise, the party against whom a presumption is directed has the burden of

producing evidence to rebut the presumption. But this rule does not shift the burden

of persuasion, which remains on the party who had it originally.”).

apparent…. Second, not only must the officer be lawfully located in a place from

which the object can be plainly seen, but he or she must also have a lawful right of

access to the object itself.” Horton v. California, 496 U.S. 128, 136-37 (1990).

The undisputed facts show that Nutsch, along with Trooper Dustako, were

both searching Paez’s vehicle when they observed the unlocked and open cell phone

sitting in plain view next to the driver’s seat. Nutsch saw a text message which he

interpreted as arranging a meeting for an illegal drug transaction. Nutsch returned to

his patrol car to discuss the text message with Paez. Paez tried explaining to Nutsch

that the conversation was part of his ongoing activity with the WING Drug Task

Force, and stated he was working with Investigator Dodge. Nutsch was able to reach

Investigator Dodge by phone, who advised Nutsch that Paez was not working as an

informant. Nutsch decided to seize the cellphone at that time “due to the fact that it

contained information regarding the illegal sale of a controlled substance.” (Nutsch

Aff. p. 6, ¶ 49). The seizure was lawful under the plain view doctrine.

C. Search of Paez’s Person

After detecting the odor of marijuana in the vehicle and on Paez’s person,

Nutsch searched Paez’s pants pockets but found no incriminating evidence. (Nutsch

Aff. p. 3, ¶ 26; Ex. A) Paez does not challenge the lawfulness of this search.

Later, after speaking with Investigator Dodge and learning that Paez was

known to hide drugs inside his clothing and under his genitals, Nutsch directed Paez

to lower his pants. (Nutsch Aff. p. 6, ¶ 54; Ex. A). Nutsch contends this strip search

“was supported by probable cause” (Filing 39 at 22), but “[a] warrantless search,

irrespective of the existence of probable cause, is per se unreasonable except for a

few well-delineated exceptions.” United States v. Wilson, 524 F.2d 595, 600 (8th

Cir. 1975) (Heaney, C.J., dissenting). See Coolidge, 403 U.S. at 454-55 (“Thus the

most basic constitutional rule in this area is that searches conducted outside the

judicial process, without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject only to a few specifically

established and well delineated exceptions.”) (cleaned up). Nutsch does not claim

that any recognized exception to the warrant requirement is applicable here, such as

a search incident to an arrest. Indeed, Nutsch specifically claims in his motion for

summary judgment that he “did not violate Paez’s Fourth Amendment rights because

the search of Paez’s body was made after probable cause was established that Paez

often hides contraband in his genital area.” (Filing 38, p. 1).

Nutsch further states he “had reasonable suspicion to believe that Paez was

hiding contraband on his person after Nutsch spoke to Investigator Dodge.” (Filing

39 at 21). While reasonable suspicion will justify a protective pat-down search for

weapons during an investigatory stop, see Arizona v. Johnson, 555 U.S. 323, 330-

32 (2009), it will not justify a search for evidence of criminal activities. See United

States v. Hanlon, 401 F.3d 926, 930 (8th Cir.2005) (“Because safety is the sole

justification for a pat-down search for weapons, only searches ‘reasonably designed

to discover concealed weapons’ are permissible.”).

In this case, the search of Paez’s person proceeded from Nutsch frisking him

for weapons, reaching into his pants pockets in search of more evidence of drug

activities, and, finally, conducting a visual strip search. Based on the pleadings, only

the final search is at issue here. Because this search was per se unreasonable without

a warrant, there is no need to consider at this juncture whether it was unreasonable

for other reasons, such as being overly intrusive, humiliating, or abusive. See, e.g.,

United States v. Williams, 477 F.3d 974, 975 (8th Cir. 2007). (“In determining

reasonableness, courts must consider the scope of the particular intrusion, the

manner in which it is conducted, the justification for initiating it, and the place in

which it is conducted.”).

“[I]n cases where there is a legitimate question whether an exception to the

warrant requirement exists, it cannot be said that a warrantless search violates clearly

established law.” Mitchell v. Forsyth, 472 U.S. 511, 535 n. 12 (1985). This is not

such a case, though, because Nutsch has not claimed that an exception applies. He

has only asserted—contrary to clearly established law—that the warrantless search

was justified by probable cause and reasonable suspicion. Any reasonable officer in

Nutsch’s position would have known that he could not conduct a roadside strip

search without a warrant unless some exception applied, and he does not claim an

exception. Consequently, Nutsch’s defense of qualified immunity fails with respect

to Paez’s claims involving the strip search. See Harlow v. Fitzgerald, 457 U.S. 800,

815 (1982) (“Qualified immunity is an affirmative defense for which the government

official bears the burden of proof.”).

VII. CONCLUSION

The court finds there is no genuine dispute as to any material fact and Nutsch

is entitled to judgment as a matter of law on Paez’s claims that his constitutional

rights were violated when Nutsch searched Paez’s vehicle and seized his cell phone,

because the “automobile” and “plain view” exceptions to the warrant requirement

are applicable. It remains to be determined whether Nutsch may be held liable for

conducting a roadside strip search of Paez’s person without a warrant.

IT IS THEREFORE ORDERED that Defendant’s motion for summary

judgment (Filing 38) is granted in part and denied in part, as follows:

1. Plaintiff’s claims that the search of his vehicle and the seizure of his cell

phone violated his constitutional rights are dismissed with prejudice.

2. In all other respects, the motion for summary judgment is denied.

IT IS FURTHER ORDERED on the court’s own motion that the following

language is substituted for Paragraph 5 (“Pretrial Conference”) of the Order Setting

Schedule for Progression of Case (Filing 24), and the Clerk of the Court is directed

to reset the pro se case management deadline accordingly:

5. Pretrial Conference.

a. Defense counsel will have the primary responsibility for

drafting the Order on Final Pretrial Conference, pursuant to the format

and requirements set out in NECivR 16.2(a)(2). The plaintiff will be

responsible for cooperating in the preparation and signing of the final

version of the Order. The Order should be submitted to the plaintiff and

to any other parties by July 11, 2022. The plaintiff shall provide

additions and/or proposed deletions to Defense counsel by July 25,

2022. Defense counsel shall submit the Proposed Order on Final

Pretrial Conference to the court by no later than August 8, 2022. If a

party proposes an addition or deletion which is not agreed to by all the

other parties, that fact should be noted in the text of the document. The

Proposed Order on Final Pretrial Conference must be signed by all pro

se parties and by counsel for all represented parties.

b. The Final Pretrial Conference will be held before the

Magistrate Judge on August 16, 2022, at 11:00 a.m. Prior to the

pretrial conference, all items as directed in NECivR 16.2 and full

preparation shall have been completed so that trial may begin at any

time following the Pretrial Conference.

C. If a plaintiffis held in an institution, the pretrial conference

will be by telephone. In that case, Defense counsel shall contact the

plaintiff's institution in advance and arrange to initiate and place the

conference call.

Dated this 12thday of May, 2022.

BY THECOURT:

Kichind oF

Richard G. d,

Senior United States District Judge

18