Monzalvo Lazcano v. Morrow

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

IVAN MONZALVO LAZCANO, et al., CASE NO. 1:18-CV-02784

Plaintiffs,

-vs- JUDGE PAMELA A. BARKER

TROOPER SHANE M. MORROW,

MEMORANDUM OF OPINION AND

Defendant. ORDER

This matter comes before the Court upon the Motion for Summary Judgment of Defendant

Trooper Shane M. Morrow (“Morrow”). (Doc. No. 27.) Plaintiffs Ivan Monzalvo Lazcano (“Ivan”),

Fernando Monzalvo Lazcano (“Fernando”), Paige Monzalvo Lazcano (“Paige”), D.B.M.L.,

R.G.M.L., and D.M.M.L. (collectively, “Plaintiffs”) filed a brief in opposition on February 14, 2020,

to which Morrow replied on March 2, 2020. (Doc. Nos. 30, 31, 32.)1 For the following reasons,

Morrow’s Motion for Summary Judgment (Doc. No. 27) is GRANTED.

I. Background

a. Factual Background

On November 1, 2017, Plaintiffs were all traveling together in a vehicle driving northbound

on Interstate 71 towards Cleveland, Ohio in order to attend a hearing at the Cleveland Immigration

Court for Fernando. (Doc. No. 27-3 at 40:14-41:13; Doc. No. 27-4 at 10:14-19.) Specifically, the

vehicle’s occupants included (1) Paige; (2) her husband, Ivan; (3) their daughter, D.M.M.L.; (4)

1 Plaintiffs filed two briefs in opposition that are identical, except for two corrections to citations made in the second

filing. (See Doc. Nos. 30, 31.) The Court will only refer to the second version submitted by Plaintiffs throughout the rest

of the opinion.

Paige’s daughters, D.B.M.L. and R.G.M.L.; and (5) Ivan’s brother, Fernando. Paige is Caucasian,

and all other Plaintiffs are Hispanic/Latino. (Doc. No. 31 at 1.)

On that day, Morrow, who was then a member of the Ohio State Highway Patrol’s Criminal

Patrol Unit focused on drug interdiction, observed Plaintiffs’ vehicle drive by him while he was in

his vehicle parked at a crossover on Interstate 71. (Doc. No. 27-1 at 48:19-49:10, 108:20-109:15.)

Morrow noticed Plaintiffs’ vehicle was going below the speed limit in the middle lane of the interstate

and pulled out to follow it. (Id. at 109:16-25, 113:18-114:2; Doc. No. 27-2 at 57:12-24.) While

following Plaintiffs, Morrow observed what he perceived as nervousness based on the way that

Ivan—who was driving at the time—was holding the wheel, the vehicle’s consistent pace in the

middle lane, the fact that the vehicle was traveling below the speed limit (although it was raining),

and the fact that the occupants never looked directly at him. (Doc. No. 27-1 at 110:10-19, 113:20-

114:2, 149:9-25; Doc. No. 27-2 at 57:20-24.)

Three to four minutes after Morrow started following them, Plaintiffs exited the interstate.

(Doc. No. 27-2 at 59:23-60:8.) According to Morrow, Plaintiffs’ vehicle moved from the middle lane

to the exit lane in one quick movement, and he could not safely follow them. (Doc. No. 27-1 at

110:25-111:15.) As a result, Morrow claims that he went to the next crossover and waited for

Plaintiffs’ vehicle to return to the interstate. (Id. at 111:16-18.) In contrast, Plaintiffs assert that they

properly moved to the right lane for a period of time and then exited the interstate, and that Morrow

also exited the interstate after them. (Doc. No. 27-3 at 50:8-21, 57:17-58:2.) Plaintiffs contend that

Morrow continued to follow Plaintiffs until they turned into a McDonald’s parking lot, at which point

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Morrow continued straight down the road. (Id. at 50:22-51:18.)2 Paige and the children then went

inside the McDonald’s to use the restroom. (Id. at 53:3-10.) When they returned to the car, Paige

began driving and got back on the interstate. (Id. at 53:14-20.)

Despite this conflicting testimony, the parties agree that by the time Plaintiffs returned to

Interstate 71, Morrow was parked and waiting in another crossover. (Doc. No. 29-2 at 11:54:26.)3

When Plaintiffs’ vehicle passed Morrow, he again pulled out of the crossover and accelerated to catch

up to it, although he was unsure if it was the same vehicle because he noticed it was now being driven

by a woman. (Id. at 11:54:40-11:55:45; Doc No. 27-1 at 117:1-11.) Morrow subsequently observed

Plaintiffs’ vehicle traveling sixty to sixty-five miles per hour and staying between one and two car

lengths from the camper in front of it. (Doc. No. 29-2 at 11:56:08-26; Doc. No. 27-2 at 104:24-

105:10; Doc. No. 27-3 at 61:15-62:11.) He then pulled Plaintiffs’ vehicle over onto the right shoulder

of the highway. (Doc. No. 29-2 at 11:57:28-45.)

Once stopped, Morrow approached Plaintiffs’ vehicle from the passenger side, and asked for

the driver’s license, the vehicle’s registration, and proof of insurance, and told them that he stopped

them for following too closely behind another vehicle. (Id. at 11:57:54-11:58:12.) Morrow then

asked who owned the vehicle, and Paige responded that it was her husband’s vehicle. (Id. at 11:58:17-

18; Doc. No. 27-3 at 67:8-13.) Subsequently, Morrow asked whether Ivan was Paige’s husband and

whether he had been driving earlier, and Ivan responded that he had been driving earlier. (Doc. No.

2 Ultimately, the parties’ disagreement regarding whether Plaintiffs’ vehicle properly changed lanes and whether Morrow

followed them off the interstate is not relevant to Plaintiffs’ claims and, therefore, does not create a dispute of material

fact that would preclude summary judgment. See Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 487 (6th Cir.

2006).

3 A video recording from Morrow’s dashcam begins when he is parked at this crossover and continues through the rest

of the stop. (See Doc. No. 29-2.)

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29-2 at 11:58:20-27; Doc. No. 27-2 at 83:10-84:10.) Morrow then asked for Ivan’s identification,

and Ivan provided his Mexican consular identification card. (Doc. No. 29-2 at 11:58:30-34; Doc. No.

27-2 at 84:13-85:11; Doc. No. 31-1.) Next, Morrow inquired as to whether the reason that Plaintiffs

stopped at McDonald’s earlier and switched drivers was because Ivan did not have a license. (Doc.

No. 29-2 at 11:58:42-52.) Ivan responded that the main reason for the stop was for Paige and his

daughters to use the restroom, but that the stop was also because he did not have a driver’s license

and had been driving the vehicle. (Doc. No. 27-2 at 85:14-88:2.)

Morrow then asked where Plaintiffs were heading, and Ivan and Paige stated that they were

going to Cleveland. (Id. at 88:3-9; Doc. No. 27-3 at 71:23-72:3.) Neither Ivan nor Page mentioned

anything about the reason for their trip to Cleveland, but Morrow followed up by asking whether they

were heading to court or had an immigration hearing. (Doc. No. 29-2 at 11:58:56-11:59:00; Doc.

No. 27-2 at 88:10-12; Doc. No. 27-3 at 72:5-15.) Morrow went on to question Plaintiffs to clarify

who had the immigration hearing and whose children were in the car. (Doc. No. 29-2 at 11:59:00-

12:00:33.) He also requested Fernando’s identification and immigration court documents, and

Fernando provided the documents he had with him, as well as an identification card from his

immigration attorney. (Id.; Doc. No. 27-4 at 19:12-20:24.) All of the questioning up to this point

occurred within approximately three minutes of Morrow stopping Plaintiffs’ vehicle.

Subsequently, Morrow asked Paige to exit the car and come back with him to his vehicle.

(Doc. No. 29-2 at 12:00:32-35.) After Paige exited Plaintiffs’ vehicle and walked towards Morrow’s

vehicle, Morrow reiterated to her that the reason for the traffic stop was that Paige was traveling too

closely behind another vehicle, explaining that she had been driving within one to two car lengths

behind another vehicle while traveling at sixty to sixty-five miles per hour. (Id. at 12:00:50-

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12:01:23.) They also continued to discuss Plaintiff’s trip to Cleveland and what time Plaintiffs were

supposed to arrive. (Id. at 12:01:23-35.) Paige then agreed to a pat-down search by Morrow. After

conducting a quick pat down, Morrow directed Paige to sit in the back of his patrol vehicle next to

his drug-sniffing dog while he ran her information. (Id. at 12:01:35-55.) Standing outside the door

of his vehicle where Paige was seated in the back, he also had Paige clarify that Ivan was Paige’s

husband and that Ivan’s brother, Fernando, had the immigration hearing. He then inquired whether

Ivan was “in some type of” immigration process, to which Paige replied that they were trying to “set

it up right now.” (Id. at 12:01:55-12:02:16.) Morrow then walked around to enter his vehicle as well,

at which time Paige asked Morrow to “not to do anything to him.” (Id. at 12:02:28-37.) When

Morrow asked what she meant by that, Paige said, “immigration or anything like that.” (Id. at

12:02:47-51.) Morrow replied that Ivan’s “immigration status is out of my concern,” but “the United

States Border Patrol is down here working with us right now” and he was going to call Border Patrol

to come to the scene to “check [Ivan’s immigration status.]” (Id. at 12:02:57-12:03:15.) Shortly

thereafter, Morrow requested assistance from the United States Border Patrol. (Id. at 12:04:40-

12:05:26; Doc. No. 27-3 at 92:24-93:11.) A total of approximately seven minutes had passed since

Morrow had stopped Plaintiffs at that time.

At his deposition, Morrow testified that he called the Border Patrol because he had no way to

confirm Ivan’s identity without a driver’s license or state identification, and Border Patrol would be

able to verify Ivan’s identify, in addition to Fernando’s identity and the immigration court documents.

(Doc. No. 27-1 at 57:7-59:4, 129:22-130:3, 131:21-132:2, 182:19-25.) Specifically, Morrow testified

that “the Border Patrol was called to come and identify him. And then also if, if they want to take

him for the immigration violation, that was up to them.” (Id. at 129:24-130:3.) However, at no point

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during the course of the stop—before or after the Border Patrol agents arrived—did Morrow ask the

Border Patrol agents to run an identification or criminal history check on Ivan or Fernando.

As they waited for Border Patrol to arrive, Morrow continued to discuss a variety of topics

with Paige, such as his observations of Plaintiffs before pulling them over, whether Ivan had a driver’s

license, the results of his computer check on the registration of Plaintiffs’ vehicle, Fernando’s

documents and the circumstances surrounding his entry into the United States, whether Ivan was

legally present in the United States, and the fact that Morrow intended to issue Paige a warning for

following too closely behind another vehicle. (Doc. No. 29-2 at 12:05:27-12:20:50.)

Approximately sixteen minutes after Morrow called for assistance—twenty-three minutes

into the stop in total—the Border Patrol agents arrived. (Id. at 12:20:50.) Morrow gave the agents a

summary of his encounter with Plaintiffs and the information he had gathered on Ivan’s and

Fernando’s immigration status. (Id. at 12:21:00-12:22:01.) The agents then went to Plaintiffs’

vehicle to speak to Ivan and Fernando. (Id. at 12:22:02.) At that time, Morrow returned to his vehicle,

returned Paige’s identification, and gave her a written warning for following too closely behind

another vehicle. (Id. at 12:22:12-20; Doc. No. 27-1 at 192:1-25.) He then asked her to remain in the

vehicle. (Doc. No. 29-2 at 12:22:22-27.) A couple of minutes later, the Border Patrol agents informed

Paige that they were taking Ivan into custody. (Id. at 12:25:25-40.)

Approximately sixteen minutes after the Border Patrol agents arrived—thirty-nine minutes

into the stop in total—a Border Patrol agent returned to Morrow’s vehicle to inform Paige where Ivan

was being taken, and Paige was released from the back of Morrow’s vehicle to talk to Ivan before he

was taken away. (Id. at 12:36:04-42.) Shortly after Paige exits Morrow’s vehicle, the sound of the

video from Morrow’s dashcam cuts out for the remainder of the recording. (Id. at 12:37:55.)

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However, at her deposition, Paige testified that as she was returning to her vehicle to drive away,

Morrow rolled down his passenger window and spoke to Paige. (Doc. No. 27-3 at 131:13-132:3.)

According to Paige, she asked Morrow how he would feel if he were in her position, and Morrow

responded that he was not the one married to an illegal alien. (Id. at 132:5-8.) Paige then returned to

her vehicle. (Doc. No. 29-2 at 12:39:10-22.)

b. Procedural History

On December 3, 2018, Plaintiffs filed a Complaint against Morrow, setting forth two counts

under 42 U.S.C. § 1983 for Morrow’s alleged violations of their constitutional rights. (Doc. No. 1.)

Specifically, Plaintiffs claim that Morrow (1) violated the Fourth Amendment, as incorporated by the

Fourteen Amendment, by seizing them without probable cause or reasonable suspicion that a crime

had been committed and unreasonably prolonging the seizure; and (2) violated the Fourteenth

Amendment’s Equal Protection Clause by stopping Plaintiffs and prolonging the stop based on

Plaintiffs’ race, ethnicity, and perceived national origin. (Id. at ¶¶ 97-112.)

On January 15, 2020, Morrow filed a Motion for Summary Judgment, asserting Plaintiffs’

claims should be dismissed because he is entitled to qualified immunity. (Doc. No. 27.) Plaintiffs

filed a brief in opposition to Morrow’s Motion for Summary Judgment on February 14, 2020, to

which Morrow replied on March 2, 2020. (Doc. Nos. 31, 32.)

II. Standard of Review

Summary judgment is proper “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.” Fed. R. Civ. P. 56(a). “A

dispute is ‘genuine’ only if based on evidence upon which a reasonable jury could return a verdict in

favor of the non-moving party.” Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 487 (6th Cir.

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2006). “Thus, ‘the mere existence of a scintilla of evidence in support of the plaintiff’s position will

be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.’”

Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is “material” only “if its resolution might affect the

outcome of the suit under the governing substantive law.” Henderson, 469 F.3d at 487.

At the summary judgment stage, “[a] court should view the facts and draw all reasonable

inferences in favor of the non-moving party.” Pittman v. Experian Info. Solutions, Inc., 901 F.3d

619, 628 (6th Cir. 2018). “But where, as here, there is ‘a videotape capturing the events in question,’

the court must ‘view[ ] the facts in the light depicted by the videotape.’” Green v. Throckmorton,

681 F.3d 853, 859 (6th Cir. 2012) (quoting Scott v. Harris, 550 U.S. 372, 378-81 (2007)).

“[T]he moving party bears the initial burden of showing that there is no genuine dispute of

material fact.” Ask Chems., LP v. Comput. Packages, Inc., 593 F. App’x 506, 508 (6th Cir. 2014).

The moving party may satisfy this initial burden by “identifying those parts of the record which

demonstrate the absence of any genuine issue of material fact.” Lindsey v. Whirlpool Corp., 295 F.

App’x 758, 764 (6th Cir. 2008). “[I]f the moving party seeks summary judgment on an issue for

which it does not bear the burden of proof at trial,” the moving party may also “meet its initial burden

by showing that ‘there is an absence of evidence to support the nonmoving party’s case.’” Id. (quoting

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the moving party satisfies its burden, “the

burden shifts to the non-moving party who must then point to evidence that demonstrates that there

is a genuine dispute of material fact for trial.” Ask Chems., 593 F. App’x at 508-09. “[T]he

nonmoving party may not simply rely on its pleading, but must ‘produce evidence that results in a

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conflict of material fact to be solved by a jury.’” MISC Berhad v. Advanced Polymer Coatings, Inc.,

101 F. Supp. 3d 731, 736 (N.D. Ohio 2015) (quoting Cox, 53 F.3d at 150).

III. Analysis

“Police officers are immune from civil liability unless, in the course of performing their

discretionary functions, they violate the plaintiff’s clearly established constitutional rights.” Mullins

v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015). To determine whether an officer is entitled to qualified

immunity, courts “apply a well-established two-prong test: (1) whether the facts, when taken in the

light most favorable to the party asserting the injury, show the officer’s conduct violated a

constitutional right; and (2) whether the right violated was clearly established such ‘that a reasonable

official would understand that what he is doing violates that right.’” Id. (quoting Saucier v. Katz, 533

U.S. 194, 202 (2001)). Courts are “permitted to exercise their sound discretion in deciding which of

the two prongs of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). “Once

a defendant invokes qualified immunity, the plaintiff bears the burden to show that qualified

immunity is inappropriate.” Quigley v. Tuong Vinh Thai, 707 F.3d 675, 681 (6th Cir. 2013).

With regard to the second prong of the analysis, whether the right violated was clearly

established, the Sixth Circuit has elaborated that “[t]he constitutional right cannot simply be a general

prohibition, but rather ‘the right the official is alleged to have violated must have 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.’” Sample v. Bailey, 409 F.3d 689, 698 (6th Cir. 2005) (quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987)). However, that “is not to say that an official action is protected by qualified

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immunity unless the very action in question has previously been held unlawful, but it is to say that in

the light of pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640 (internal

citation omitted). “The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.” Katz, 533 U.S. at 202. Additionally, “[i]n the ordinary instance, to find a

clearly established constitutional right, a district court must find binding precedent by the Supreme

Court, its court of appeals or itself.” Kennedy v. City of Cincinnati, 595 F.3d 327, 337 (6th Cir. 2010)

(quoting Ohio Civil Serv. Employees Ass’n v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988)).

a. Count I

In Count I of their Complaint, Plaintiffs allege that Morrow stopped Plaintiffs without

probable cause or reasonable suspicion that they had committed a crime and unreasonably prolonged

their seizure. (Doc. No. 1 at ¶¶ 97-104.) Morrow contends he is entitled to summary judgment on

Count I because he had probable cause to initiate the stop of Plaintiffs for following too closely behind

another vehicle and reasonable suspicion of additional criminal activity justifying the extension of

the stop. (Doc. No. 27 at 10-17.) In particular, Morrow argues that Plaintiffs’ prolonged detention

was justified by reasonable suspicion that Ivan had been driving without a license, that Paige

wrongfully entrusted her vehicle to an unlicensed driver, and that Ivan and Fernando had entered the

United States improperly in violation of federal immigration law. (Id. at 12-17.) In response,

Plaintiffs appear to concede that Morrow had probable cause to pull them over, but contend that their

extended seizure was unreasonable for a number of reasons. (Doc. No. 31 at 9-16.) Plaintiffs assert

Morrow did not have reasonable suspicion of wrongful entrustment or illegal entry and that Morrow

had no authority to enforce the federal statute prohibiting illegal entry. (Id. at 12-16.) They also

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claim that although Morrow became aware that Ivan did not have a license shortly after stopping

them, Morrow took no action to actually investigate Ivan’s driving without a license that would justify

the extended length of the stop. (Id. at 13-14.) Upon review of the parties’ arguments, the Court

finds that Morrow is entitled to summary judgment on Plaintiffs’ claims that Morrow’s actions

violated their rights under the Fourth Amendment.

As noted briefly above, Plaintiffs do not dispute that the initial stop of Plaintiffs’ vehicle was

lawful. Nor could they, as Morrow had probable cause to believe that Paige had committed a traffic

violation. Stopping and detaining a driver constitutes a seizure within the meaning of the Fourth

Amendment of both the driver and any accompanying passengers. See Brendlin v. California, 551

U.S. 249, 251 (2007). But “so long as the officer has probable cause to believe that a traffic violation

has occurred or was occurring, the resultant stop is not unlawful and does not violate the Fourth

Amendment.” United States v. Davis, 430 F.3d 345, 352 (6th Cir. 2005) (quoting United States v.

Bradshaw, 102 F.3d 204, 210 (6th Cir. 1996)). “The requirements of probable cause are satisfied

‘where “the facts and circumstances within their (the officers’) knowledge and of which they had

reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable

caution in the belief that” an offense has been or is being committed.’” Id. (quoting Brinegar v.

United States, 338 U.S. 160, 175-76 (1949)).

Here, before pulling Plaintiffs’ vehicle over, Morrow observed the vehicle traveling sixty to

sixty-five miles per hour and staying one to two car lengths behind another vehicle. (Doc. No. 29-2

at 11:56:08-26; Doc. No. 27-2 at 104:24-105:10; Doc. No. 27-3 at 61:15-62:11.) Consequently, he

had probable cause to believe that the driver of Plaintiffs’ vehicle had violated Ohio Revised Code §

4511.34(A), which provides that “[t]he operator of a motor vehicle . . . shall not follow another vehicle

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. . . more closely than is reasonable and prudent, having due regard for the speed of such vehicle . . .

and the traffic upon and the condition of the highway.” Ohio Rev. Code § 4511.34(A); see United

States v. Williamson, No. 3:11CR155, 2011 WL 4944400, at *3 n.3 (N.D. Ohio Oct. 17, 2011) (“Ohio

courts have consistently upheld the one car length/ten mph rule of thumb as applied to justify stops

for violation [of] O.R.C. § 4511.34(A).”). As a result, Morrow’s initial stop of Plaintiffs’ vehicle was

constitutionally permissible.

However, this does not end the Court’s inquiry, as “a seizure that is lawful at its inception can

violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected

by the Constitution.” United States v. Everett, 601 F.3d 484, 488 (6th Cir. 2010) (quoting Illinois v.

Caballes, 543 U.S. 405, 407 (2005)). An ordinary traffic stop “is more akin to an investigative

detention rather than a custodial arrest, and the principles announced in Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968), apply to define the scope of reasonable police conduct.” United

States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999). Accordingly, the Court must determine whether

Morrow’s execution of the traffic stop complied with the standard for temporary detentions set forth

in Terry and its progeny.

“To qualify as reasonable seizures under the Fourth Amendment, Terry detentions must be

‘limited in [both] scope and duration.’” Everett, 601 F.3d at 488 (quoting Florida v. Royer, 460 U.S.

491, 500 (1983)). That is, “a stop ‘must . . . last no longer than is necessary to effectuate the purpose

of the stop’” and “the investigative methods employed should be the least intrusive means reasonably

available to verify or dispel the officer’s suspicion in a short period of time.” Id. (quoting Royer, 460

U.S. at 500). However, some amount of unrelated questioning is permissible “so long as the officer’s

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overall course of action during a traffic stop, viewed objectively and in its totality, is reasonably

directed toward the proper ends of the stop.” Id. at 495.

Additionally, police may extend a stop beyond the scope of what was originally permissible

if “something that occurred during the stop caused the officer to have a reasonable and articulable

suspicion that criminal activity was afoot.” Hill, 195 F.3d at 264; United States v. Bell, 555 F.3d 535,

539 (6th Cir. 2009) (“To detain the motorist any longer than is reasonably necessary to issue the

traffic citation, however, the officer must have reasonable suspicion that the individual has engaged

in more extensive criminal conduct.”) (quoting United States v. Townsend, 305 F.3d 537, 541 (6th

Cir. 2002)). “Reasonable suspicion requires specific and articulable facts, which, taken together with

rational inferences from those facts, reasonably warrant the continued detention of a motorist after a

traffic stop.” Bell, 555 F.3d at 540 (quoting United States v. Smith, 263 F.3d 571, 588 (6th Cir.

2001)). In other words, “[r]easonable suspicion is more than an ill-defined hunch” and “must be

based upon a particularized and objective basis for suspecting the particular person . . . of criminal

activity.” Id. (quoting Smith, 263 F.3d at 588).

First, the Court finds that Morrow did not impermissibly extend Plaintiffs’ detention by his

initial questioning during the first seven minutes of the stop prior to calling for Border Patrol’s

assistance. In the traffic stop context, “[b]eyond determining whether to issue a traffic ticket, an

officer’s mission includes ‘ordinary inquiries incident to [the traffic] stop.’” Rodriguez v. United

States, 575 U.S. 348, 355 (2015) (quoting Caballes, 543 U.S. at 408). “Typically such inquiries

involve checking the driver’s license, determining whether there are outstanding warrants against the

driver, and inspecting the automobile’s registration and proof of insurance.” Id. In addition, “initial

questions related to the driver’s and passenger’s identities and their purpose for traveling are not

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beyond the permissible scope.” United States v. $275,000 in U.S. Currency, No. 1:07-0058, 2009

WL 1588661, at *11 (M.D. Tenn. June 5, 2009); United States v. Potts, No. 97-6000, 1999 WL

96756, at *4 (6th Cir. Feb. 2, 1999) (“It is well established that an officer is free to ask traffic-related

questions, and questions about a driver’s identity, business and his travel plans during the course of

a traffic stop.”).

In the instant matter, during the first seven minutes of the stop, almost all of Morrow’s

questions fell within the permissible scope of inquiries for a stop based on Paige’s traffic violation.

After pulling Plaintiffs’ vehicle over, Morrow immediately asked for Paige’s license, the vehicle’s

registration, and proof of insurance, and informed Plaintiffs that he stopped them for following too

closely behind another vehicle. (Doc. No. 29-2 at 11:57:54-11:58:12.) He then questioned Plaintiffs

about Ivan driving earlier and their stop at McDonald’s, obtained identification from Ivan and

Fernando, inquired as to the other minor passengers, and asked about Plaintiffs’ purpose for traveling

to Cleveland. (Id. at 11:58:17-12:00:33.) When Morrow asked Paige to step out of the vehicle, he

continued to discuss the reason for the stop, asked for more information about what time Plaintiffs

needed to arrive in Cleveland, and clarified who had the immigration hearing and the Plaintiffs’

relationships to one another. (Id. at 12:00:33-12:02:16.) This occurred as Paige and Morrow moved

towards and entered Morrow’s vehicle so that he could run Paige’s information. (Id.) None of this

questioning exceeded the scope of the traffic stop or impermissibly extended Plaintiffs’ detention.

Even assuming, arguendo, that, as Plaintiffs’ claim, any questioning as to Plaintiffs’

immigration status exceeded the scope of the stop, Morrow asked only a single question during the

first seven minutes of the stop directly regarding immigration status. Specifically, Morrow asked

Paige whether Ivan was “in some type of” immigration process. (Id. at 12:01:55-12:02:16.) When

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Paige answered and then followed up on her own to request that Morrow not take any action related

to Ivan’s immigration status, Morrow refrained from asking additional immigration related questions,

noting that it was out of his concern. (Id. at 12:01:55-12:03:15.) He then called for Border Patrol’s

assistance. (Id. at 12:04:40-12:05:26.) This limited interaction regarding Ivan’s immigration status

did not impermissibly extend Morrow’s initial questioning or demonstrate that Morrow had

“definitively abandoned the prosecution of the traffic stop and embarked on another sustained course

of investigation.” Everett, 601 F.3d at 495. While Morrow did ask several questions related to

Fernando’s immigration hearing, such questions were permissible as pertaining to Plaintiffs’ travel

plans and purposes for traveling.

Next, the Court finds that Morrow did not violate clearly established law by calling Border

Patrol and waiting sixteen minutes for Border Patrol agents to arrive. Another court from this district

recently addressed a scenario similar to the one presented here. In Gomez Alvarado v. Beard, three

individuals did not produce sufficient identification after an officer found two of them fishing without

a license. No. 3:18 CV 589, 2020 WL 516284, at *1 (N.D. Ohio Jan. 8, 2020). In response, the

officer asked whether they were illegally present in the United States, and, after they responded that

they were, the officer allegedly “smiled and said, ‘I’m going to send you back to Mexico.’” Id. The

officer then called Border Patrol and detained all three individuals and their five respective children

for almost an hour and a half until Border Patrol agents arrived and transported them to a Border

Patrol station. Id. A second state officer that had arrived during the wait for the Border Patrol agents

wrote one of the detained individuals an unlicensed fishing citation and gave it to one of the Border

Patrol agents before they left. Id.

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In defense of the extended detention, the officers argued that holding the individuals until

Border Patrol arrived was necessary to verify their identity in order to issue a citation. Id. at *3. The

court granted summary judgment in favor of the officers with respect to the detained individuals’

prolonged detention claims, reasoning:

This Court doubts that law-enforcement officers may detain someone for ninety

minutes to verify identity and address, at least when the detainee has committed only

a low-level regulatory crime. However, perhaps due to the unusual facts of this case,

on-point authority is apparently nonexistent. Absent such precedent, qualified

immunity shields Beard and Kaufmann from liability.

Of course, Beard’s true motivation may not have been a desire to enforce Ohio’s

fishing regulations. Rather, he may have hoped to facilitate the deportation of the

adult Plaintiffs, who admitted to unlawful immigration status. But Beard’s intent is

irrelevant. “[T]he Fourth Amendment’s concern with reasonableness allows certain

actions to be taken in certain circumstances, whatever the subjective intent.” Whren

v. United States, 517 U.S. 806, 814 (1996) (citation, emphasis, and internal quotation

marks omitted); accord Wiley v. Oberlin Police Dept., 330 F. App’x 524, 528 (6th Cir.

2009).

Id. at *3-4.

Here, after pulling Plaintiffs’ vehicle over, Morrow developed reasonable suspicion that Ivan

had been driving without a license in violation of Ohio Revised Code § 4510.12(A)(1). To wit, within

minutes of the stop, Ivan admitted that he had been driving when Morrow first saw Plaintiffs’ vehicle

and that he did not have a license. (Doc. No. 27-2 at 83:10-84:10, 85:14-88:2.) Plaintiffs argue that

Morrow had the necessary information to issue a citation well before the Border Patrol agents arrived,

yet took no further steps to investigate Ivan’s violation. (Doc. No. 31 at 13.) However, Morrow

testified that he would not be able to identify Ivan through his computer system without a driver’s

license or state identification—which Plaintiffs have not challenged—and that he called Border Patrol

because they would be able to verify Ivan’s identity. (Doc. No. 27-1 at 57:7-59:4, 129:22-130:3,

131:21-132:2, 182:19-25.) Morrow’s intent in calling Border Patrol may not have been to verify

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Ivan’s identity for the purpose of issuing a citation—indeed, Morrow never asked the Border Patrol

agents to run an identification check and never issued a citation to Ivan—but that is not relevant under

the Fourth Amendment’s objective reasonableness standard. See, e.g., United States v. Torres-

Ramos, 536 F.3d 542, 550 n.7 (6th Cir. 2008) (“The subjective intent of the officer is irrelevant, both

before and after the initial stop.”). Consequently, as in Gomez Beard, without authority

demonstrating that holding Plaintiffs for an additional sixteen minutes to verify Ivan’s identity was

unreasonable, qualified immunity protects Morrow from liability for this additional extension of the

stop. In fact, that conclusion is even more strongly supported here, as Morrow held Plaintiffs for

significantly less time than the individuals were held in Gomez Beard.4

Finally, although neither party specifically addressed the reasonableness of detaining Paige

and the other Plaintiffs another sixteen minutes following the arrival of Border Patrol, the Court finds

that Morrow’s actions in this regard also did not violate clearly established law. Shortly after their

arrival, the Border Patrol agents informed Paige that they were going to take Ivan into custody, and

Morrow’s decision to continue to detain Paige in the back of his vehicle while Ivan’s arrest took place

did not violate clearly established law. See United States v. Harvey, No. 5:17-CR-86-DCR-REW,

2017 WL 4018478, at *4 (E.D. Ky. Sept. 11, 2017) (“[W]here an individual is in an area immediately

adjoining the arrestee, the individual may be placed in temporary protective detention even in the

4 The Court also notes that based on this finding, the subject matter of the questions that Morrow asked Paige while

waiting for the Border Patrol agents to arrive is irrelevant. Because Morrow was waiting for the Border Patrol agents to

arrive, even if his questions were unrelated to the purposes of the stop, they did not act to prolong the stop further. See

Bell, 555 F.3d at 542 (“Because the Officers already were waiting for the results of the background check, any time that

the Officers spent in pursuing other matters while the background check was processing, even if those matters were

unrelated to the original purpose of the stop, did not extend the length of the stop.”).

17

absence of probable cause or a reasonable suspicion that the individual poses a threat to officer

safety.”) (quoting United States v. Kinzalow, 236 F. App’x 414, 418 (10th Cir. 2007)).

Consequently, the Court finds that Morrow is entitled to summary judgment on Plaintiffs’

claims under the Fourth Amendment based on their initial seizure and the length of their detention.5

b. Count II

Plaintiffs also assert that Morrow violated Plaintiffs’ rights under the Equal Protection Clause

by stopping Plaintiffs and prolonging their detention based on their perceived race and national origin.

(Doc. No. 31 at 16.) Morrow contends that Plaintiffs’ selective enforcement claims fail because they

have not presented evidence that other similarly situated drivers were not pulled over and because

they cannot demonstrate that Morrow’s actions had a discriminatory purpose or effect. (Doc. No. 27

at 17-19; Doc. No. 32 at 10-18.) Conversely, Plaintiffs argue that Morrow’s deposition testimony

and actions during the stop sufficiently support their claims. (Doc. No. 31 at 16-20.) The Court

concludes that summary judgment in favor of Morrow on Plaintiffs’ selective enforcement claims is

appropriate.

“The Equal Protection Clause prohibits the selective enforcement of laws based on arbitrary

classifications.” Conrad v. City of Berea, 243 F. Supp. 3d 896, 902 (N.D. Ohio 2017). To prevail on

a claim of selective enforcement in violation of the Equal Protection Clause, a plaintiff must satisfy

three elements:

First, [an official] must single out a person belonging to an identifiable group, such as

those of a particular race or religion, or a group exercising constitutional rights, for

prosecution even though he has decided not to prosecute persons not belonging to that

group in similar situations. Second, [the official] must initiate the prosecution with a

5 Based on the analysis above, the Court finds it unnecessary to address the parties’ arguments regarding wrongful

entrustment and federal immigration law.

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discriminatory purpose. Finally, the prosecution must have a discriminatory effect on

the group which the defendant belongs to.

Gardenhire v. Schubert, 205 F.3d 303, 319 (6th Cir. 2000) (quoting United States v. Anderson, 923

F.2d 450, 453 (6th Cir. 1991)). This “standard is a demanding one.” Stemler v. City of Florence, 126

F.3d 856, 873 (6th Cir. 1997) (quoting United States v. Armstrong, 517 U.S. 456, 463 (1996)).

Indeed, “there is a strong presumption that the state actors have properly discharged their official

duties, and to overcome that presumption the plaintiff must present clear evidence to the contrary.”

Id.

The Court agrees with Morrow that Plaintiffs’ claims cannot succeed with regard to the initial

stop of Plaintiffs’ vehicle, as Plaintiffs have not provided any evidence of similarly situated people

that were treated differently. The Sixth Circuit has made clear “that as to the first element ‘it is an

absolute requirement that the plaintiff make at least a prima facie showing that similarly situated

persons outside [his] category were not prosecuted.” Cunningham v. Sisk, 136 F. App’x 771, 775

(6th Cir. 2005) (quoting Gardenhire, 205 F.3d at 319). For example, in Cunningham, an officer

pulled over the plaintiff, held him at gun point, waited for other officers to arrive, searched his car

and found nothing illegal, ran a check on his license and registration that yielded no negative

information, and then issued him a citation for speeding. Id. at 772-73. On appeal, the Sixth Circuit

affirmed the dismissal of the plaintiff’s selective enforcement claim on summary judgment because

he relied entirely on the fact that he was African American and two of the officers involved were

white, finding that the plaintiff “proffered nothing to suggest that similarly situated people (speeders)

of different races were treated differently in terms of arrest or search or the issuance of traffic

citations.” Id. at 775; see also Pullin v. City of Canton, 133 F. Supp. 2d 1045, 1054 (N.D. Ohio 2001)

(granting summary judgment in favor of the defendant because the plaintiff did “not offer evidence

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satisfying the ‘absolute requirement’ of any selective enforcement claim—a showing ‘that similarly

situated persons outside her category were not prosecuted’”) (citation omitted).

Similarly, in this case, Plaintiffs have not provided any evidence that Morrow did not stop

similarly situated people of different races or national origin. In fact, Paige and Ivan admitted that

no other cars were following as closely behind other vehicles as they were when Morrow pulled

Plaintiffs’ over. (Doc. No. 27-2 at 105:11-106:17; Doc. No. 27-3 at 63:13-20.) Instead, in support

of their claims, Plaintiffs appear to rely on the fact that Morrow became suspicious and started to

follow them only after observing Ivan driving and, thereby, noticing his Hispanic ethnicity. (Doc.

No. 31 at 19.) But that is insufficient to establish a selective enforcement claim with regard to the

initial stop of Plaintiffs without any evidence related to similarly situated vehicles that Morrow

ignored. As such, Plaintiffs’ selective enforcement claims based on their allegations that Morrow

stopped Plaintiffs based on their perceived race and national origin fail as a matter of law.

The Court finds that summary judgment also is warranted as to Plaintiffs’ selective

enforcement claims based on their prolonged detention. As noted above, in order to establish a

selective enforcement claim, a plaintiff must demonstrate that the prosecution had a discriminatory

effect. Gardenhire, 205 F.3d at 319 (6th Cir. 2000). “To establish discriminatory effect in a race

case, the claimant must show that similarly situated individuals of a different race were not

prosecuted.” Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 534 (6th Cir.

2002) (quoting Armstrong, 517 U.S. at 465). Further, “[a] claimant can demonstrate discriminatory

effect by naming a similarly situated individual who was not investigated or through the use of

statistical or other evidence which ‘address[es] the crucial question of whether one class is being

20

treated differently from another class that is otherwise similarly situated.’” Id. (quoting Chavez v. Ill.

State Police, 251 F.3d 612, 638 (7th Cir. 2001)).

Here, Plaintiffs again fail to provide any evidence showing that similarly situated individuals

of a different race were treated differently with respect to the length of Plaintiffs’ detention or any

other aspect of the stop. Plaintiffs cite to Morrow’s deposition testimony to support their claims, but

this reliance is misplaced. For example, Plaintiffs claim that Morrow testified that he has never called

Border Patrol on white or black motorists. (Doc. No. 31 at 17.) Morrow did testify that he did not

remember ever calling Border Patrol when white or black suspects were involved. (Doc. No. 27-1 at

179:6-9 (“Q. Do you remember calling them on any white people? A. No. Nothing stands out in my

mind. Q. Do you remember calling them on any black people? A. No.”).) However, when asked,

“[e]very time you’ve called Border Patrol, was the person you called about Latino,” Morrow also

responded, “I don’t remember.” (Id. at 179:3-5.) Thus, Morrow’s testimony does not provide any

evidence as to the race or ethnicity of the individuals that were involved when he has previously

called the Border Patrol during his career. The cited testimony only demonstrates that he did not

remember if those calls involved suspects of any specific racial or ethnic group.

Plaintiffs also assert that Morrow’s testimony demonstrates that he chose to call Border Patrol

instead of running Ivan’s and Fernando’s information through his computer system because of their

Hispanic names. (Doc. No. 31 at 17-18.) But a review of his testimony does not support this

conclusion. When asked whose names he ran through his database during the stop, Morrow stated:

“I ran Paige, because she had an Ohio license, which I knew I would get information back. . . . If I

would have ran -- through my experience, as soon as you run those other two gentlemen’s name and

DOB, it’s going to pop up a bunch of different alias stuff that I’m not going to be able to sort through.”

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(Doc. No. 27-1 at 130:11-21.) When later asked to expand on what he meant by the possibility of

receiving a lot of aliases, he explained the difficulty of running a name like “John Smith” or

“Fernando Ramirez” because the system will provide a lot of individuals with the same name that he

would have to sort through. (Id. at 145:3-146:16.) Specifically, with respect to the Fernando Ramirez

example, Morrow stated: “[W]hen you run an Hispanic name and DOB, they will come back with

alias hits, meaning, I don’t know, let’s just say Fernando Ramirez, all right, and I run that name and

DOB, you’re going to get a bunch of different Fernando Ramirez. It could be another name Ramirez,

different date of births.” (Id. at 146:3-8.) When subsequently asked why he was “specifically

concerned about that issue with Hispanic names,” Morrow responded that it was based on the

“specific example that we’re working with here today [i.e. the Monzalvo Lazcanos]. It’s not a

reference to Hispanics.” (Id. at 146:17-147:2.) Thus, Morrow did not testify that he refused to run

Ivan’s and Fernando’s information because of their Hispanic names. Instead, his testimony makes

clear that he did not run their names because without a driver’s license, he would get back an

unworkable number of names. Further, Morrow did, in fact, search his system for a Hispanic name

during the stop, Paige Monzalvo Lazcano, because she had an Ohio license. (Id. at 130:13-16.)

Finally, Plaintiffs claim that Morrow’s testimony demonstrates he called Border Patrol to

check on Ivan’s and Fernando’s immigration status because they are Hispanic, and that he would not

do so for non-Hispanic drivers with no identification. (Doc. No. 31 at 18.) Again, this

mischaracterizes Morrow’s testimony. When asked whether Morrow would contact Border Patrol

on a non-Hispanic driver with no identification, Morrow ultimately answered that if he “believe[d]”

the driver was a U.S. citizen, he would not call Border Patrol to identify them. (Doc. No. 27-1 at

147:4-148:1.) In contrast to that hypothetical situation, when Morrow called Border Patrol during

22

the stop, he already had ample evidence that Fernando and Ivan were not U.S. citizens, as he was

aware that Fernando was in immigration proceedings and that Ivan was about to begin the

immigration process. Consequently, Morrow’s testimony does not indicate that he treats similarly

situated Hispanic and non-Hispanic suspects differently.

Accordingly, Plaintiffs have not identified a similarly situated individual who was treated

differently or provided statistical or other evidence showing that Morrow treats Hispanic people

differently from similarly situated individuals of other races. As such, Plaintiffs cannot demonstrate

that Morrow’s actions had a discriminatory effect.6

The lack of probative evidence in support of Plaintiffs’ claims also distinguishes this case

from Farm Labor, on which Plaintiffs heavily rely. (See Doc. No. 31 at 17-20.) In Farm Labor, in

support of a finding of discriminatory effect, the plaintiffs “introduced direct evidence that Hispanic

motorists are treated differently than white motorists,” including testimony from three of the

defendant officers “that, in their experience, they would refer Hispanic motorists to the Border Patrol

when, in precisely the same circumstances, they would not refer someone who was white (i.e., not of

Hispanic appearance).” 308 F.3d at 536. As described above, there is no such evidence in this case.

Therefore, the Court will grant Morrow’s Motion for Summary Judgment with respect to Plaintiffs’

claims for selective enforcement.

6 As a result, the Court need not address the parties’ arguments regarding whether Morrow acted with a discriminatory

purpose.

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IV. Conclusion

For the reasons set forth above, Morrow’s Motion for Summary Judgment (Doc. No. 27) is

GRANTED.7

IT IS SO ORDERED.

s/Pamela A. Barker

PAMELA A. BARKER

Date: August 17, 2020 U. S. DISTRICT JUDGE

7 In his Motion for Summary Judgment, Morrow includes a cursory request to assess costs to Plaintiffs, presumably

pursuant to 42 U.S.C. § 1988. (Doc. No. 27 at 20.) The Court denies Morrow’s Motion in this regard, as Plaintiffs’

claims were not frivolous, unreasonable, or without foundation. See White v. City of Ypsilanti, No. 96-2414, 1997 WL

705253, at *2 (6th Cir. Nov. 4, 1997) (“[T]he Supreme Court has held that a prevailing defendant should recover only

upon a finding by the district court that the plaintiffs[’] action was frivolous, unreasonable, or without foundation, even

though not brought in subjective bad faith.”) (internal quotations and citations omitted).

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