The opinion
USCA11 Case: 23-13566 Document: 40-1 Date Filed: 08/07/2024 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-13566
Non-Argument Calendar
____________________
JOSEPH SMITH,
Plaintiff-Appellee,
versus
MARK SOHN,
individually,
SHAUN JAMES,
individually,
ANDREW BERBEN,
individually,
CORY HENRY,
individually,
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2 Opinion of the Court 23-13566
Defendants-Appellants.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:22-cv-80590-RS
____________________
Before JORDAN, GRANT, and LAGOA, Circuit Judges.
PER CURIAM:
While conducting a traffic stop, officers employed a dog sniff
and subsequently searched Joseph Smith’s car. Smith brought suit
against the officers, alleging illegal search and seizure along with
several other claims. The district court denied qualified immunity
for the officers as to the illegal search and seizure claims. Because
we agree that there is a genuine dispute of material fact about
whether probable cause justified the search, we affirm.
I.
At 12:50 pm, Defendants Officers Shaun James and Andrew
Berben stopped a car for speeding. The officers approached the
vehicle and noticed that the car had illegally tinted windows. 1 The
officers asked the driver for his driver’s license, proof of insurance,
1 Florida law limits the extent to which vehicle windows may be tinted. Fla.
Stat. § 316.2953.
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23-13566 Opinion of the Court 3
and registration, all of which he provided. The officers noticed that
the vehicle was registered to Joseph Smith, but that the driver’s
license was for Joseph Matthew Avrus. When officers questioned
the driver about this discrepancy, he provided a second driver’s
license—this time with the name “Joseph Smith.” The driver,
Smith, explained that he had recently legally changed his name and
was told to carry both licenses with him.
This interaction understandably raised the officers’
suspicions, and they asked Smith if he had been smoking marijuana
or otherwise had any drugs, weapons, or bombs. Smith initially
responded in the negative, but then said, “I am not going to say
anything to incriminate myself.” The officers responded by asking
to search Smith’s car, but he declined. According to the officers,
Smith acted nervous during this entire encounter. At 12:58 pm, the
officers called for two additional officers, Cory Henry and Mark
Sohn, as backup. At 1:02 pm, Officer James began writing the first
of two traffic citations, one for speeding and the other for illegal
tinting.
Backup arrived by 1:06 pm. Officer Mark Sohn asked Smith
if he would consent to a search of his car, and Smith again
declined. 2 Officer Sohn then informed Smith that he would be
conducting a dog sniff of the vehicle’s exterior. Smith was
2 For the remaining facts, we refer to Officer Sohn’s dash camera footage of
the scene.
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4 Opinion of the Court 23-13566
instructed to step out of the car. The officers conducted a pat down
search, but found nothing.
The dog sniff lasted about two minutes, from 1:09 pm to
1:11 pm. While the dog never gave a clear alert, Officer Sohn
commented that it seemed interested in Smith’s trunk. Officer
Sohn again requested consent to search Smith’s car, to which Smith
declined.
The officers proceeded to search Smith’s entire car. At
about 1:16, pm, while the search was still ongoing, Officer James
finished writing Smith’s tickets. The search of the trunk did not
reveal any contraband. But at 1:27 pm, after about 15 minutes of
searching the car, officers found a bag containing controlled
substances under the floorboards of the driver’s seat. Smith was
arrested and later charged with several narcotics offenses.
Smith brought suit against all four officers, alleging illegal
search and seizure, false arrest, malicious prosecution, and
violations of due process. The officers moved to dismiss these
claims, which the district court granted in part with respect to the
due process and state law malicious prosecution claims. The
officers then moved for summary judgment on the remaining
claims based on qualified immunity. The district court granted that
motion as to the false arrest and federal malicious prosecution
claims, but denied it as to the illegal search and seizure claims
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23-13566 Opinion of the Court 5
against each officer. The officers appeal the denial of qualified
immunity for the illegal search and seizure claims. 3
II.
“We review de novo the district court’s disposition of a
summary judgment motion based on qualified immunity,
resolving all issues of material fact in favor of Plaintiffs and then
answering the legal question of whether Defendants are entitled to
qualified immunity under that version of the facts.” Case v. Eslinger,
555 F.3d 1317, 1324–25 (11th Cir. 2009) (emphasis and quotation
omitted). When “video evidence is conclusive, witness testimony
cannot be used to introduce a factual dispute.” Charles v. Johnson,
18 F.4th 686, 692 n.1 (11th Cir. 2021).
III.
“Qualified immunity shields officials from civil liability so
long as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known.” Crocker v. Beatty, 995 F.3d 1232, 1239 (11th Cir. 2021)
(quotation omitted).
On appeal, the officers argue that the district court erred in
two ways. First, they say that the court wrongly concluded that
they had unconstitutionally prolonged the traffic stop. Second, they
dispute that they lacked probable cause to search Smith’s vehicle.
3 “A trial court’s denial of qualified immunity at the summary judgment stage
is immediately appealable.” Haney v. City of Cumming, 69 F.3d 1098, 1101 (11th
Cir. 1995).
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We agree with the officers’ first argument, but disagree as to the
second.
A.
“A seizure for a traffic violation justifies a police
investigation of that violation.” Rodriguez v. United States, 575 U.S.
348, 354 (2015). Traffic stops “may last no longer than is necessary”
to address the infraction and any related safety concerns. Id.
(quotation omitted). An officer may undertake activities unrelated
to the traffic stop’s mission, such as a dog sniff, but only if it does
not prolong the stop. Baxter v. Roberts, 54 F.4th 1241, 1259 (11th
Cir. 2022). So long as a dog sniff occurs during a lawful traffic stop
while officers are still “conducting routine records checks and
preparing the traffic citations,” it does not prolong the stop. United
States v. Holt, 777 F.3d 1234, 1257 (11th Cir. 2015).
We disagree with the district court’s conclusion that the
officers in this case unconstitutionally prolonged the stop. The
district court’s reasoning was based on Officer James’s failure to
deliver the citations to Smith until his arrest—nearly thirty-seven
minutes after he was initially stopped.
That analysis, however, shifts the focus from the proper
inquiry: whether the dog sniff began during the routine traffic stop
procedures. Here, Officer James began writing Smith’s two
citations at 1:02 pm, and finished writing at 1:16 pm. The dog sniff
occurred during that time, beginning at 1:09 pm and ending around
1:11 pm, when Officer Sohn claimed that the dog had detected
odor from the trunk. Because the dog sniff occurred while Officer
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James was still writing Smith’s citations, it did not
unconstitutionally prolong the stop.
B.
Under the “automobile exception,” officers may conduct a
warrantless search of a vehicle if they have probable cause to
believe that the search will produce evidence of a crime. California
v. Acevedo, 500 U.S. 565, 566, 569 (1991). “[P]robable cause arises
when a drug-trained canine alerts.” See United States v. Tamari, 454
F.3d 1259, 1265 (11th Cir. 2006) (quotation omitted). We have
“rejected a stricter rule requiring a final response, indication, or
alert for a drug dog to be sufficiently reliable.” United States v.
Braddy, 11 F.4th 1298, 1314 (11th Cir. 2021). The inquiry must
instead focus on “whether all the facts surrounding a dog’s alert,
viewed through the lens of common sense, would make a
reasonably prudent person think that a search would reveal
contraband or evidence of a crime.” Id. at 1312.
We are skeptical that the officers had probable cause to
search any part of Smith’s car. To alert, the drug detection dog is
supposed to “sit and stare at the source of odor.” But the dog never
did that. And although Officer Sohn states that subtle changes in
the dog’s behavior suggested an alert, the video does not reflect
those changes. 4 Because there is a genuine dispute of material fact
4 The officers also provided a declaration by a canine expert who stated that
the dog’s “alert was sufficient indication that narcotics were present in the
subject vehicle.” Missing from the record, however, is a report or curriculum
vitae for the expert. The district court thus did not consider this evidence, and
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as to whether the dog alerted, the officers are not entitled to
qualified immunity.5
* * *
Although the officers did not unconstitutionally prolong the
traffic stop, there is a genuine dispute of material fact as to whether
they had probable cause to search Smith’s car. We therefore affirm
the district court’s summary judgment order denying qualified
immunity for the illegal search and seizure claims.
AFFIRMED.
neither do we. See Corwin v. Walt Disney Co., 475 F.3d 1239, 1252 (11th Cir.
2007).
5 Even if the dog provided a weak indication of odor from the trunk, that does
not necessarily mean that the officers had probable cause to search the entire
vehicle. See Acevedo, 500 U.S. at 580.