Moreno v. Baca

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

R. MORENO, in his individual 

capacity and in his capacity as

representative of the classes

described fully herein,

Plaintiff-Appellee,

v.

No. 02-55627

LEROY BACA; MICHAEL

ANTONOVICH; YVONNE BURKE; D.C. No.

DONALD KNABE; GLORIA MOLINA;

ZEV YAROSLAVSKY,

 CV 00-07149 ABC

ORDER AND

Defendants, AMENDED

and OPINION

BANKS, Deputy Sheriff #403862;

GARCIA, Deputy Sheriff #412525,

Defendants-Appellants,

STATE OF CALIFORNIA,

Intervenor-on-Appeal.



Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, District Judge, Presiding

Argued and Submitted

April 9, 2003—Pasadena, California

Submission Withdrawn October 8, 2003

Resubmitted February 16, 2005

Opinion Filed March 7, 2005

Opinion Withdrawn and Amended Opinion

Filed December 9, 2005

16097

16098 MORENO v. BACA

Before: Harry Pregerson, A. Wallace Tashima, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Tashima

16100 MORENO v. BACA

COUNSEL

Devallis Rutledge, Manning & Marder Kass, Ellrod, Ramirez,

Irvine, California, for the defendants-appellant.

Kathryn S. Bloomfield, Yagman & Yagman & Reichmann &

Bloomfield, Venice Beach, California, for the plaintiff-

appellee.

Doris A. Calandra, Deputy Attorney General, Sacramento,

California, for the intervenor-on-appeal.

MORENO v. BACA 16101

ORDER

The Opinion and separate Opinion concurring in the judg-

ment filed on March 7, 2005, slip op. 2657 and 2687, and

reported at 400 F.3d 1152 and 1169, are withdrawn and

replaced by the Amended Opinion filed concurrently with this

order.

The foregoing action renders defendants-appellants’ peti-

tion for rehearing and petition for rehearing en banc, and

intervenor-on-appeal State of California’s petition for rehear-

ing and/or petition for rehearing en banc moot. Subsequent

petitions for panel rehearing and/or petitions for rehearing en

banc may be filed with respect to the Amended Opinion in

accordance with the requirements of Fed. R. App. P. 40 and

35.

OPINION

TASHIMA, Circuit Judge:

Los Angeles County Deputy Sheriffs Sean Banks and

Thomas Garcia (“Appellants”) appeal from the district court’s

denial of their motion for summary judgment asserting quali-

fied immunity in a § 1983 action brought by plaintiff Richard

Moreno. Moreno alleges that Appellants, acting under color

of state law, deprived him of his constitutional rights when

they arrested and searched him without cause. We affirm.

Factual Background

One evening in January 2000, Richard Moreno and his

companion Joe Rodriguez were on their way to a meeting at

St. Lucy’s Church in the City Terrace area of Los Angeles.

After their car broke down, Moreno and Rodriguez proceeded

toward the meeting on foot. At approximately 7 p.m., a

16102 MORENO v. BACA

marked Los Angeles County Sheriff patrol car passed them as

they walked down the street, made a U-turn, and pulled the

car onto the curb in their path. Two deputies got out of the

car. Deputy Banks, who was riding in the passenger seat,

ordered Moreno and Rodriguez to approach. Banks interro-

gated both men as to their business in the area, patted them

down for weapons, emptied the contents of their pockets onto

the hood of the patrol car, and locked them into the back seat.

While Moreno and Rodriguez sat in the back seat of the car,

Deputy Banks entered their names into a computer inside the

patrol car and asked the men whether they were on parole.

Moreno admitted that he was.

Meanwhile, Deputy Garcia, the driver of the patrol car,

walked down the sidewalk in the direction from which Rodri-

guez and Moreno had approached, shining his flashlight on

the sidewalk and into nearby yards as he went. When Garcia

returned to the patrol car he had a discussion with Banks,

reached into the glove compartment to retrieve a ziploc bag,

and then put the bag back into the glove compartment and

closed the door. Moreno heard one of the deputies tell the

other that Rodriguez was “clean” but that Moreno was on

parole. At that point, Garcia opened the rear door of the car

and told Rodriguez that he was free to leave, which he did.

Moreno was handcuffed and told that he was under arrest for

violating his parole. When Moreno asked the deputies what he

had done to violate his parole, one of them told him that he

was caught in possession of rock cocaine.

Deputies Banks and Garcia gave a somewhat different

account of the incident. According to their incident report,

Banks noticed that Moreno was “startled” when he saw the

patrol car. As the deputies approached, Moreno turned

around, reached into his right front pants pocket, and dis-

carded something on the front steps of a nearby residence.

Because the deputies were on patrol in a high crime area, and

because they were aware that drugs were sold in several

houses nearby, they decided to investigate. They detained

MORENO v. BACA 16103

Moreno and placed him in the patrol car. Banks walked to the

area in which he had seen Moreno discard the object and

recovered an object he recognized as rock cocaine. One of the

deputies did a warrant check on the patrol car’s MDT termi-

nal, which revealed an outstanding arrest warrant with

$10,000 bail for Moreno.1 The MDT search also revealed that

Moreno was on parole, a fact which Moreno orally confirmed.

Both deputies declared under oath that they were aware from

their training and experience that a standard term of parole

was that parolees were subject to warrantless searches by any

peace officer. Moreno was placed under arrest, both for pos-

session of cocaine and under the authority of the outstanding

arrest warrant, and a parole hold was placed on him. Although

the incident report makes no reference to Rodriguez or any

other person, both Banks and Garcia refer to “another man”

in their sworn declarations describing the encounter.

At the time of the detention, Moreno was indeed a parolee

under the supervision of the California Department of Correc-

tions. He had been released from prison more than two years

earlier, subject to the following condition: “You and your res-

idence and any property under your control may be searched

without a warrant by an agent of the Department of Correc-

tions or any law enforcement officer.” Moreno also had an

outstanding arrest warrant, which was issued when Moreno

failed to make an appearance in state court in 1999. It is

undisputed, however, that the deputies learned that Moreno

was on parole and that he had an outstanding arrest warrant

only after searching and detaining him.

Moreno was subsequently charged in state court with pos-

session of a controlled substance. Deputies Banks and Garcia

testified against him at trial and Rodriguez testified for the

defense. Moreno was acquitted by a jury in 2002.

1

An MDT terminal gives deputy sheriffs access to certain criminal

records, and can alert officers to the possibility of outstanding arrest war-

rants.

16104 MORENO v. BACA

Moreno then brought this action under 42 U.S.C. § 1983,

contending that Banks and Garcia violated his Fourth Amend-

ment right to be free from unreasonable searches and seizures

when they arrested and searched him without cause. Banks

and Garcia responded that Moreno had no right to be free

from suspicionless arrests and searches because of the out-

standing bench warrant and the parole condition. Even if rea-

sonable suspicion were required to detain Moreno, the

officers contended, they had the requisite level of suspicion

because of Moreno’s nervous behavior and the fact that he

was walking in a “high crime” area.

The district court sided with Moreno, reasoning that under

Griffin v. Wisconsin, 483 U.S. 868 (1987), and United States

v. Knights, 534 U.S. 112 (2001), “at least reasonable suspi-

cion is required to justify the search, and subsequent seizure,

of Moreno.” The court further held that, interpreting the facts

in the light most favorable to Moreno, the facts “do not come

close to the level of suspicion that existed in Knights and

Griffin.” It rejected the deputies’ argument that Moreno’s

parole search condition and the outstanding arrest warrant

retroactively justified the arrest and search even though nei-

ther Banks nor Garcia was aware of either circumstance at the

time. The court denied the deputies’ motion for summary

judgment on qualified immunity grounds, holding that More-

no’s constitutional right to be free from suspicionless searches

was “clearly established” at the time of the detention, and that

a suspect’s nervousness at the sight of law enforcement, by

itself, did not give rise to reasonable suspicion.

The deputies brought this interlocutory appeal of the dis-

trict court’s denial of summary judgment on qualified immu-

nity grounds. We have jurisdiction over the appeal, but only

to the extent that it presents legal questions. Mitchell v. For-

syth, 472 U.S. 511, 530 (1985); Jeffers v. Gomez, 267 F.3d

895, 903 (9th Cir. 2001) (“Our jurisdiction [to review the

denial of qualified immunity] generally is limited to questions

of law and does not extend to claims in which the determina-

MORENO v. BACA 16105

tion of qualified immunity depends on disputed issues of

material fact.”).

I

We review the district court’s denial of a motion for sum-

mary judgment de novo. Billington v. Smith, 292 F.3d 1177,

1183 (9th Cir. 2002). Viewing the evidence in the light most

favorable to the nonmoving party, we must determine whether

there are any genuine issues of material fact and whether the

district court correctly applied the relevant substantive law.

Oliver v. Keller, 289 F.3d 623, 626 (9th Cir. 2002). “[T]he

ordinary framework for deciding motions for summary judg-

ment” applies to motions for summary judgment based on

official immunity. Butler v. San Diego Dist. Attorney’s Office,

370 F.3d 956, 963 (9th Cir. 2004). Because the moving defen-

dant bears the burden of proof on the issue of qualified immu-

nity, he or she must produce sufficient evidence to require the

plaintiff to go beyond his or her pleadings. Id. The defen-

dant’s burden is to demonstrate the absence of a genuine issue

of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986).

[1] The determination of whether a law enforcement officer

is entitled to qualified immunity involves a two-step analysis.

Saucier v. Katz, 533 U.S. 194, 201 (2001). In the first step we

must view the record in the light most favorable to the party

asserting injury in determining whether the officer’s conduct

violated a constitutional right. Id. If the plaintiff establishes

the violation of a constitutional right, we must next consider

whether that right was clearly established at the time the

alleged violation occurred. Id. The contours of the right must

have been clear enough that a reasonable officer would have

understood that what he or she was doing violated that right.

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

We may affirm the district court on any basis supported by

the record. Cigna Prop. & Cas. Ins. Co. v. Polaris Pictures

Corp., 159 F.3d 412, 418 (9th Cir. 1998).

16106 MORENO v. BACA

II

Appellants first contend that Moreno had no Fourth

Amendment rights that could have been violated by virtue of

the parole condition allowing warrantless searches of his per-

son, residence, and property. Second, they contend that the

arrest and search were justified by the parole search condition

and the outstanding arrest warrant, despite the fact that the

deputies did not know of either fact at the time. Because we

reject the second contention, we need not reach the first.

A. Did the Existence of Either the Parole Condition or

the Outstanding Bench Warrant Retroactively

Justify the Arrest and Search?

Appellants argue that the search was reasonable under the

Fourth Amendment because Moreno was on parole and

because there was an outstanding misdemeanor warrant for

Moreno’s arrest. First, we assume without deciding that the

conditions under which Moreno was stopped, searched, and

detained were such as to justify a parole search and detention,

had the officers known that Moreno was on parole before act-

ing. Second, we also assume that the existence of an arrest

warrant could have rendered Moreno’s arrest “reasonable”

and that a search incident to a lawful arrest would have been

permissible under United States v. Robinson, 414 U.S. 218,

235 (1973). It is undisputed, however, that Deputies Banks

and Garcia were not aware of Moreno’s parole status or of the

outstanding arrest warrant at the time of the seizure. Thus, we

must confront the question of whether a search or seizure can

be considered “reasonable” if the facts that rendered the

search “reasonable” (in this case, the parole status and out-

standing arrest warrant) were unknown to the officer at the

time of the intrusion. We hold that it cannot.

[2] It is well established that under the Fourth Amendment,

to arrest a suspect on probable cause, the “facts and circum-

stances within the officer’s knowledge [must be] sufficient to

MORENO v. BACA 16107

warrant a prudent person, or one of reasonable caution, in

believing, in the circumstances shown, that the suspect has

committed, is committing or is about to commit an offense.”

Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). “[A]lmost

without exception in evaluating alleged violations of the

Fourth Amendment the Court has first undertaken an objec-

tive assessment of an officer’s actions in light of the facts and

circumstances then known to him.” Scott v. United States, 436

U.S. 128, 137 (1978); see also Ornelas v. United States, 517

U.S. 690, 696 (1996) (“We have described reasonable suspi-

cion simply as ‘a particularized and objective basis’ for sus-

pecting the person stopped of criminal activity, and probable

cause to search as existing where the known facts and circum-

stances are sufficient to warrant a man of reasonable prudence

in the belief that contraband or evidence of a crime will be

found.”) (emphasis added) (citation omitted); Illinois v.

Rodriguez, 497 U.S. 177, 188 (1990) (holding that “factual

determinations bearing upon search and seizure” must be

judged against an “objective standard” based on “facts avail-

able to the officer at the moment”).2

[3] In United States v. Luckett, 484 F.2d 89 (9th Cir. 1973)

(per curiam), we held that a police officer’s knowledge that

2

See also Thacker v. City of Columbus, 328 F.3d 244, 261 (6th Cir.

2003); United States v. Castro, 166 F.3d 728, 733 (5th Cir. 1999)

(“Probable cause exists when the totality of facts and circumstances within

a police officer’s knowledge at the moment of arrest are sufficient for a

reasonable person to conclude that the suspect had committed, or was in

the process of committing, an offense.”) (emphasis added); Taylor v.

Waters, 81 F.3d 429, 434 (4th Cir. 1996) (“In assessing the existence of

probable cause, courts examine the totality of the circumstances known to

the officer at the time of the arrest.”) (emphasis added). Indeed, in

addressing the converse situation, in which law enforcement officers

arrested a man because they reasonably believed that an outstanding arrest

warrant existed when in fact it did not, the Supreme Court found that the

seizure was “reasonable” (for the purpose of applying the “good faith”

exception to the exclusionary rule) precisely because it was justified based

on the facts known to the officers at the time. United States v. Leon, 468

U.S. 897, 926 (1984).

16108 MORENO v. BACA

a man was subject to an outstanding bench warrant, which he

acquired only after unlawfully seizing the man, did not retro-

actively render the seizure of that man “reasonable” under the

Fourth Amendment. Id. at 90-91. In that case, the officer spot-

ted a man jaywalking and summoned him to his police car.

After reviewing the man’s identification, the officer detained

the man long enough to write a jaywalking citation. We held

that the temporary seizure during which the police checked

the man’s identification and wrote the citation was reasonable

under the Fourth Amendment because it was “ ‘strictly tied to

and justified by’ the circumstances which rendered its initia-

tion permissible.” Id. at 90 (quoting Terry, 392 U.S. at 16,

19). But the officer continued to detain the man after the cita-

tion was written for the sole purpose of running a warrant

check on him. The warrant check turned out positive, and the

officer arrested him on that basis. A search incident to that

arrest revealed a package of counterfeit money orders. We

held that the detention of the man for the purpose of running

the warrant check was “unreasonable,” and the evidence was

properly suppressed at trial, because at the time it was con-

ducted, the officer “had no reasonable grounds to be suspi-

cious that there might be a warrant outstanding against him.”

Id. at 91; see also United States v. Johnson, 256 F.3d 895, 903

(9th Cir. 2001) (en banc) (Ferguson, J., joined by Schroeder,

Pregerson, and Paez, JJ.) (“We have never held that an officer

lacking any prior objective knowledge of the use of an out-

building may approach it free of Fourth Amendment con-

straints.”); United States v. DiCesare, 765 F.2d 890, 899 (9th

Cir. 1985) (“[T]he acquisition of probable cause during an

unlawful seizure does not cure the illegality and does not con-

stitute an independent source of probable cause.”), amended

by 777 F.2d 543 (9th Cir. 1985).

[4] Appellants cite to Whren v. United States, 517 U.S. 806

(1996), for the proposition that the underlying intent or moti-

vation of the police is irrelevant for Fourth Amendment

search and seizure purposes. Id. at 813. But Whren held only

that the illegitimate subjective motivation of a police officer

MORENO v. BACA 16109

will not invalidate an otherwise constitutional seizure that is

“objectively justifiable” based on facts known to the officer.

Id.; see also United States v. Cervantes, 219 F.3d 882, 890

(9th Cir. 2000) (“It is important to remember that the founda-

tion of the Court’s position in Whren is that ‘where the search

or seizure is based upon probable cause’ there is with rare

exception no balancing to be done or reasonableness determi-

nation to be made because the probable cause itself serves as

the exclusive ‘measure of the lawfulness of enforcement.’ ”)

(quoting Wayne R. LaFave, Search and Seizure: A Treatise

on the Fourth Amendment § 1.4 (3d ed. 1996) (footnote omit-

ted)); United States v. Wallace, 213 F.3d 1216, 1219 (9th Cir.

2000) (“The fact that the alleged traffic violation is a pretext

for the stop is irrelevant, so long as the objective circum-

stances justify the stop.”). In other words, although Whren

stands for the proposition that a pretextual seizure based on

the illegitimate subjective intentions of an officer may be per-

missible, it does not alter the fact that the pretext itself must

be a constitutionally sufficient basis for the seizure and the

facts supporting it must be known at the time it is conducted.

Whren, 517 U.S. at 813. In this case, as in Luckett, it is undis-

puted that Appellants were not aware of the fact that Moreno

was subject to an outstanding arrest warrant at the time they

arrested him. Therefore, there are no facts from which we can

conclude that the suspicionless arrest and search in this case

were objectively justifiable.

Appellants’ reliance on cases dealing with one’s “standing”

to bring a Fourth Amendment challenge, Minnesota v. Carter,

525 U.S. 83 (1998), United States v. Padilla, 508 U.S. 77

(1993), and Rawlings v. Kentucky, 448 U.S. 98 (1980), is like-

wise unavailing. In each of those cases, there was a question

as to whether the person challenging the search had standing

because he or she lacked a legitimate expectation of privacy

in the place searched or the thing seized. See Carter, 525 U.S.

at 91 (holding that respondent lacked standing to bring Fourth

Amendment challenge based on police search of another per-

son’s home because respondent had no expectation of privacy

16110 MORENO v. BACA

therein); Padilla, 508 U.S. at 81-82 (remanding for factual

determination as to whether petitioner had a legitimate pri-

vacy interest in a seized automobile in which he had no own-

ership interest and was not a passenger); Rawlings, 448 U.S.

at 105-06 (holding that petitioner could not challenge the

search of another person’s purse because he lacked a reason-

able expectation of privacy therein). By contrast, there is no

question that Moreno had standing to challenge the search and

seizure of his own person. See Terry, 392 U.S. at 9 (“No right

is held more sacred, or is more carefully guarded, by the com-

mon law, than the right of every individual to the possession

and control of his own person, free from all restraint or inter-

ference of others, unless by clear and unquestionable author-

ity of law.”) (quoting Union Pac. Ry. v. Botsford, 141 U.S.

250, 251 (1891)).

[5] All that we have said above with respect to the neces-

sity that the officers know of the existence of a warrant before

they can make an arrest pursuant to that warrant applies with

equal force to a parole condition — an officer must know of

a detainee’s parole status before that person can be detained

and searched pursuant to a parole condition. In fact, the Cali-

fornia Supreme Court has recently so held. People v. Sanders,

93 P.3d 496, 505 (Cal. 2003) (holding that the “police cannot

justify an otherwise unlawful search of a residence because,

unbeknownst to the police, a resident of the dwelling was on

parole and subject to a search condition”).

[6] For all of these reasons, we hold that police officers

cannot retroactively justify a suspicionless search and arrest

on the basis of an after-the-fact discovery of an arrest warrant

or a parole condition.

B. Were the Constitutional Rights at Issue Clearly

Established?

[7] Having established that Appellants violated Moreno’s

constitutional rights when they conducted the suspicionless

MORENO v. BACA 16111

search and seizure, we must evaluate whether those rights

were clearly established at the time of the incident and

whether the “unlawfulness [of Appellants’ conduct] was

apparent in light of preexisting law.” Malik v. Brown, 71 F.3d

724, 727 (9th Cir. 1995).

It is not necessary that the alleged acts have been

previously held unconstitutional, as long as the

unlawfulness [of defendants’ actions] was apparent

in light of preexisting law. Closely analogous preex-

isting case law is not required to show that a right

was clearly established. In other words, while there

may be no published cases holding similar policies

constitutional, this may be due more to the obvious-

ness of the illegality than the novelty of the legal

issue.

Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002). “[W]hen

an officer’s conduct ‘is so patently violative of the constitu-

tional right that reasonable officials would know without

guidance from the courts that the action was unconstitutional,

closely analogous pre-existing case law is not required to

show that the law is clearly established.’ ” Boyd v. Benton

County, 374 F.3d 773, 781 (9th Cir. 2004) (quoting Deorle v.

Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001)).

Deputies Banks and Garcia detained and searched Moreno

based on his nervous behavior when he spotted the patrol car

in an area known for high crime.3 They contend that their

actions were justified (1) because, as a result of Moreno’s

parole status and his outstanding arrest warrant, no level of

suspicion was required in order to arrest and search him, and

(2) even if reasonable suspicion was required to search

3

Because we view the facts in the light most favorable to the nonmoving

party, we do not consider the officers’ contention, which Moreno denies,

that Moreno removed an object from his pocket and placed it on the

ground.

16112 MORENO v. BACA

Moreno, the officers had reasonable suspicion based on More-

no’s nervous behavior in a high crime area. Both contentions

are untenable.

Appellants’ first argument in favor of qualified immunity

— that it was not clearly established that Moreno had any

right to be free from suspicionless searches because of his

parole status and his outstanding arrest warrant — relies on

the two alternate assertions discussed above, both of which

must fail. When evaluating whether a law enforcement officer

was on notice that his conduct was unlawful in a particular

instance, we look only to the “circumstances presented to

[the] officer.” Saucier, 533 U.S. at 209. The “relevant, dispo-

sitive inquiry is whether it would be clear to a reasonable offi-

cer that his conduct was unlawful in the situation he

confronted.” Id. at 202 (emphasis added).

[8] Appellants’ first assertion — that the parole search con-

dition stripped Moreno of “a normal scope of Fourth Amend-

ment protection” — does not justify the suspicionless search

and seizure. While Moreno’s parole status may have rendered

it unclear what level of suspicion was required to conduct

such a warrantless search, if Appellants had known of the

parole condition at the time of the search and seizure, it is

uncontested that this fact was unknown to Appellants at the

time of their actions and was not a fact on which Appellants

relied. Because the Deputies did not know of Moreno’s parole

status and his outstanding arrest warrant at the time they

searched and seized him, those circumstances cannot justify

their conduct. At the time of the incident in this case, it was

clearly established that the facts upon which the reasonable-

ness of a search or seizure depends, whether it be an outstand-

ing arrest warrant, a parole condition, or any other fact, must

be known to the officer at the time the search or seizure is

conducted. Rodriguez, 497 U.S. at 188; Luckett, 484 F.2d at

90-91.

[9] Appellants’ other argument — that the officers reason-

ably believed that the facts known to them constituted “rea-

MORENO v. BACA 16113

sonable suspicion” — is also unpersuasive. It was well-

established at the time of Moreno’s detention that nervousness

in a high crime area, without more, did not create reasonable

suspicion to detain an individual. In Chavez-Valenzuela, 268

F.3d at 725, we noted that although the Ninth Circuit had not

yet ruled on whether nervousness alone constitutes reasonable

suspicion, the Sixth, Seventh, and Eleventh Circuit had con-

cluded (prior to 2000) that appearing nervous is only one of

several factors for finding reasonable suspicion. See United

States v. Hill, 195 F.3d 258, 272 (6th Cir. 1999); United

States v. Finke, 85 F.3d 1275, 1280 (7th Cir. 1996). We also

noted that “no circuit has held that nervousness alone suffices

to create reasonable suspicion.” Chavez-Valenzuela, 268 F.3d

at 726; see also Brown v. Texas, 443 U.S. 47, 52 (1979)

(holding that officers did not have reasonable suspicion for an

investigatory stop when they detained two men who were

walking away from each other in an alley in an area known

for drug trafficking because “the . . . activity was no different

from the activity of other pedestrians in that neighborhood”).

The Supreme Court has held that in some circumstances an

individual’s flight from law enforcement in a high crime area

can justify an investigatory seizure. Illinois v. Wardlow, 528

U.S. 119, 125 (2000). But Moreno’s simple act of walking

away from the officers could not have been reasonably mis-

taken for the type of “flight” the officers confronted in Ward-

low. See United States v. Valentine, 232 F.3d 350, 357 (3d

Cir. 2000) (“Walking away from the police hardly amounts to

the headlong flight considered in Wardlow and of course

would not give rise to reasonable suspicion by itself, even in

a high-crime area[.]”). Interpreting all disputed issues of fact

in favor of Moreno, as we must, we hold that no reasonable

officer could have concluded that the circumstances con-

fronted by Appellants in this case gave rise to “reasonable

suspicion.”

16114 MORENO v. BACA

CONCLUSION

For the foregoing reasons, we affirm the district court’s

denial of qualified immunity and remand for further proceed-

ings.

AFFIRMED and REMANDED.