Raul De La Rosa v. Mark White

United States Court of Appeals

For the Eighth Circuit

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No. 15-3399

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Raul De La Rosa

lllllllllllllllllllll Plaintiff - Appellee

v.

Trooper Mark White

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court

for the District of Nebraska - Lincoln

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Submitted: October 25, 2016

Filed: March 27, 2017

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Before RILEY, Chief Judge,1 BEAM and LOKEN, Circuit Judges.

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LOKEN, Circuit Judge.

In March 2012, Nebraska state trooper Mark White stopped a Ford Ranger

pickup truck on Interstate 80 in Seward County, Nebraska for following another

1

The Honorable William Jay Riley stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on March 10,

2017. He has been succeeded by the Honorable Lavenski R. Smith.

vehicle too closely. See Neb. Rev. Stat. § 60-6, 140(1). After the driver, Raul De La

Rosa, provided his Arizona license, Trooper White issued a warning and completed

the traffic stop in less than fifteen minutes. However, when De La Rosa refused to

consent to a search of the pickup, Trooper White called for a drug detection dog and

detained De La Rosa for fifty minutes before the dog arrived from Omaha. The dog

alerted to De La Rosa’s vehicle; an interior search uncovered a small amount of

marijuana and three concealed firearms. De La Rosa was arrested and charged in

state court with carrying concealed firearms. The charges were dismissed after the

state trial court granted De La Rosa’s motion to suppress the firearms.

De La Rosa then filed this 42 U.S.C. § 1983 damage action in state court,

alleging that Trooper White unconstitutionally initiated a traffic stop and questioned,

detained, and arrested De La Rosa without reasonable suspicion or probable cause.

White removed the case to the United States District Court for the District of

Nebraska and now appeals the district court’s denial of his motion for summary

judgment based on qualified immunity. “An interlocutory order denying qualified

immunity is immediately appealable to the extent that it turns on an issue of law.”

Aaron v. Shelley, 624 F.3d 882, 883 (8th Cir. 2010) (quotations omitted). Reviewing

the denial of qualified immunity de novo, we reverse. See New v. Denver, 787 F.3d

895, 899 (8th Cir. 2015) (standard of review).

I.

A. Qualified immunity shields government officials from civil damage liability

for discretionary action that “does not violate clearly established statutory or

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

Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is an immunity from suit,

not a mere defense to liability. The Supreme Court has “stressed the importance of

resolving immunity questions at the earliest possible stage in litigation.” Pearson v.

Callahan, 555 U.S. 223, 232 (2009) (quotation omitted). To avoid pretrial dismissal,

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a plaintiff must present facts showing the violation of a constitutional right that was

clearly established at the time of the defendant’s act. Id. at 232-33, 236.

B. The Fourth Amendment prohibits unreasonable searches and seizures. A

traffic stop is constitutionally reasonable “where the police have probable cause to

believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806,

809-10 (1996). A traffic stop may include inquiries incident to determining whether

to issue a citation, and limited unrelated inquiries such as checking to determine if the

vehicle occupants are wanted for prior offenses. See Rodriguez v. United States, 135

S. Ct. 1609, 1614-15 (2015). However, extending the detention beyond the time

needed to complete the traffic-ticketing process is unlawful unless additional

investigation, such as a dog sniff of the vehicle’s exterior, is warranted by the

officer’s reasonable suspicion that other criminal activity may be afoot. See

Rodriguez, 135 S. Ct. at 1616; United States v. Sokolow, 490 U.S. 1, 7 (1989). In

this case, the district court granted Trooper White summary judgment “to the extent

that De La Rosa is claiming a constitutional violation based on the initial stop.” De

La Rosa does not challenge that ruling on appeal. Thus, the only issue before us is

whether Trooper White is entitled to qualified immunity from the claim that he lacked

reasonable suspicion warranting a fifty-minute extension of the traffic stop while he

summoned a drug dog that alerted to De La Rosa’s pickup.

C. Reasonable suspicion is a fact-specific determination: a reviewing court

must “look at the totality of the circumstances of each case to see whether the

detaining officer has a particularized and objective basis for suspecting legal

wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (quotations

omitted). Reasonable suspicion requires that the officer possess at least “some

minimal level of objective justification.” Sokolow, 490 U.S. at 7 (quotation omitted).

Thus, courts must not uphold “virtually random seizures” based on “circumstances

[that] describe a very large category of presumably innocent travelers.” Reid v.

Georgia, 448 U.S. 438, 441 (1980). But in making determinations of probable cause

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and reasonable suspicion, “the relevant inquiry is not whether particular conduct is

‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of

noncriminal acts.” Sokolow, 490 U.S. at 10 (quotation omitted).

II.

In this case, after initiating the traffic stop, Trooper White observed a spare tire

in the bed of the pickup truck, obtained De La Rosa’s Arizona driver’s license, and

asked De La Rosa about his travels and employment. De La Rosa said he was

traveling from Phoenix, Arizona to visit family or friends in Peoria, Illinois. Though

unemployed, De La Rosa said he performed “odd jobs” in Arizona to finance the trip.

Trooper White asked if De La Rosa had “been in trouble in the past with drugs, guns,

or anything else.” De La Rosa said no. Lincoln Dispatch advised that De La Rosa

had a criminal history for destruction of property in 2005. Questioned further, De La

Rosa explained that the charges were dropped, an explanation confirmed in the report

dispatched to White’s computer.2 Trooper White issued a warning ticket, returned De

La Rosa’s documentation, and told him that he was “free to go.” As De La Rosa

exited the patrol car, White asked whether he had drugs or anything in the vehicle that

shouldn’t be there. De La Rosa said no. White asked for consent to search the

vehicle; De La Rosa refused. White then told De La Rosa he was calling a drug

detection canine unit to conduct an exterior sniff of the vehicle.

In denying Trooper White qualified immunity, the district court considered the

uncontroverted facts in White’s statement of undisputed material facts, supplemented

by facts in De La Rosa’s affidavit and exhibits that provided “little additional

substance.” The court properly recognized that an officer needs reasonable suspicion

2

Trooper White averred that he did not notice that part of the report during the

traffic stop. De La Rosa asserts that claim is “hard to believe and unsupported in the

record” but does not argue this is a genuine issue of disputed material fact.

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to detain the motorist after completing a traffic stop, an inquiry based on the totality

of the circumstances known to the officer at the time. The court then identified the

following facts as the basis for Trooper White’s suspicion of criminal activity:

De La Rosa allegedly lied about having a criminal history because he

said he had not “been in trouble with guns, drugs, or anything else” but

he had been charged, in 2005, with destruction of property.

De La Rosa said he was going from Phoenix to visit friends in Illinois;

according to White, Arizona is a source state for contraband and Illinois

is a destination site.

De La Rosa had a spare tire in the bed of his pickup truck, which White

found “interesting” because it was not in a storage area under the bed of

the truck, and sometimes contraband is transported in a spare tire.

De La Rosa stated that he was unemployed and had earned money for

his trip by working odd jobs, which to White “sounded like a cover

story.”

De La Rosa’s demeanor was “extremely laid back and relaxed,” to the

point that Trooper White felt like De La Rosa was being deceptive or

“stand offish.” According to White, people that he contacts are usually

conversational during the stop, but De La Rosa was “closed off” and

non-conversational.

After carefully assessing each of these factors at length, the court concluded

that “the circumstances identified here, whether viewed individually or in

combination, do not generate reasonable suspicion for De La Rosa’s continued

detention.” The court denied Trooper White qualified immunity because two Eighth

Circuit decisions, United States v. Jones, 269 F.3d 919 (8th Cir. 2001) and United

States v. Beck, 140 F.3d 1129 (8th Cir. 1998), while not “factually identical,” are

“sufficiently on point to have placed that constitutional question ‘beyond debate’ for

purposes of qualified immunity.” Focusing exclusively on whether Trooper White

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violated clearly established law in concluding that he had reasonable suspicion to

detain De La Rosa until the drug dog arrived, we disagree.

III.

To be clearly established for qualified immunity purposes, “[t]he contours of

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

what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640

(1987). “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.

We do not require a case directly on point, but existing precedent must have placed

the statutory or constitutional question beyond debate. Put simply, qualified

immunity protects all but the plainly incompetent or those who knowingly violate the

law.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citations and quotations

omitted). Absent a case that is controlling authority in our jurisdiction, we look for

“a robust consensus of cases of persuasive authority.” Ashcroft v. al-Kidd, 563 U.S.

731, 742 (2011) (quotation omitted).

In the Fourth Amendment context, the Supreme Court has “recognized that it

is inevitable that law enforcement officials will in some cases reasonably but

mistakenly conclude that probable cause is present, and [has] indicated that in such

cases those officials . . . should not be held personally liable.” Anderson, 483 U.S.

at 641. Some years later, the Court further explained: “Officers can have reasonable,

but mistaken, beliefs as to the facts establishing the existence of probable cause or

exigent circumstances . . . . Yet, even if a court were to hold that the officer violated

the Fourth Amendment by conducting an unreasonable, warrantless search, Anderson

still operates to grant officers immunity for reasonable mistakes as to the legality of

their actions.” Saucier v. Katz, 533 U.S. 194, 206 (2001). The same analysis applies

when, as in this case, the Fourth Amendment issue is whether an officer had

reasonable suspicion justifying a warrantless investigative detention, rather than

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probable cause to arrest or search. Thus, Trooper White is entitled to qualified

immunity if a reasonable officer could have believed that he had a reasonable

suspicion; in other words, if he had arguable reasonable suspicion. See New, 787

F.3d. at 899 (applying “arguable probable cause” standard in qualified immunity

case); Jackson v. Sauls, 206 F.3d 1156, 1166 (11th Cir. 2000).

In this case, we find no controlling Eighth Circuit authority placing the

question beyond debate, nor a “robust consensus of cases of persuasive authority.”

More recent Eighth Circuit decisions have distinguished Jones and Beck, the cases

on which the district court primarily relied, in finding no Fourth Amendment

violations, let alone violations of clearly established Fourth Amendment law. See

United States v. Riley, 684 F.3d 758, 764 (8th Cir.), cert. denied, 133 S. Ct. 800

(2012) (distinguishing Jones and Beck); United States v. Fuse, 391 F.3d 924, 929-30

(8th Cir. 2004), cert. denied, 544 U.S. 990 (2005) (distinguishing Beck). Rather than

“a robust consensus of cases of persuasive authority” favoring the district court’s

resolution of this difficult issue, our prior cases have found reasonable suspicion

upholding the extension of traffic stops by officers relying on similar facts:

-- In Riley, 684 F.3d at 764, we concluded that a Missouri trooper acquired

reasonable suspicion to extend a traffic stop pending arrival of a drug dog based on

the traveler’s undue nervousness,3 “difficulty in answering basic questions about his

itinerary,” and “failure to be forthright about his criminal history relating to drugs.”

-- In United States v. Lyons, 486 F.3d 367, 372 (8th Cir. 2007), we concluded

that “an experienced [Nebraska trooper] trained in highway drug interdiction”

acquired reasonable suspicion to summon a drug dog when she learned, during the

3

“[W]e have often held that nervousness and other ‘subjective perceptions’ are

valid factors supporting reasonable suspicion.” United States v. Bloomfield, 40 F.3d

910, 919 n.10 (8th Cir. 1994) (en banc), cert. denied, 514 U.S. 1113 (1995).

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traffic stop, of the traveler’s “unusual travel itinerary” between Phoenix and Chicago,

the traveler gave “contradictory descriptions of the friends that he had just visited,”

and the van contained a large amount of luggage for a short trip.

-- In Fuse, 391 F.3d at 929, we concluded that a Kansas trooper acquired

reasonable suspicion to summon a drug dog from a number of factors including the

driver’s “unusual explanation for traveling to Kansas City,” and the travelers’

“continued, unusual nervousness” even after being told only a warning citation would

be issued. See also United States v. Lebrun, 261 F.3d 731, 733-34 (8th Cir. 2001).

-- In November 2009, after completing a traffic stop on I-80, an experienced

Nebraska trooper detained the traveler an additional twenty minutes to summon a

drug dog. Though the dog alerted, no criminal charges were filed, and the motorist

filed a 42 U.S.C. § 1983 damage action against the trooper and others. On March 9,

2012, the day after Trooper White stopped De La Rosa, a District of Nebraska district

judge granted the trooper qualified immunity from the Fourth Amendment claim of

extended detention, concluding the trooper had reasonable suspicion for further

detention based on the officer’s training and experience, the motorist’s vague

responses about his travel that “did not make sense,” and the officer’s perception that

the motorist appeared “uncomfortable, stand-offish and would not maintain eye

contact.” Barton v. Heineman, 2012 WL 786347, at *6 (D. Neb. March 9, 2012),

summarily aff’d, No. 13-2010 (8th Cir. Aug. 22, 2013). Inexplicably, White cited this

prior decision on appeal but not to the district court. While Barton is not controlling

authority, its timing and substantial factual similarity are strong evidence that, at the

time Trooper White made the decision to extend his detention of De La Rosa,

“existing precedent [did not] place[] the . . . constitutional question beyond debate.”

Mullenix, 136 S. Ct. at 308 (quotation omitted).

In the district court, Trooper White pointed to objective, particular facts and

explained why these facts led him to conclude he had reasonable suspicion to briefly

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extend De La Rosa’s detention to determine if a drug dog would alert to the exterior

of a pickup truck traveling from Arizona to Illinois on Interstate 80. To be sure, on

the merits, the existence of reasonable suspicion was a close question, because the

facts on which Trooper White relied, taken together, did not raise as strong a

suspicion of interstate drug trafficking as in prior cases such as Riley and Lebrun.

But White relied on facts presenting substantial similarities with prior cases in which

reasonable suspicion of drug trafficking was found and extension of a traffic stop was

upheld.

In recent years, the Supreme Court has repeatedly reversed decisions denying

qualified immunity where lower courts “misunderstood the ‘clearly established’

analysis.” White v. Pauly, 137 S. Ct. 548, 552 (2017). To avoid qualified immunity,

De La Rosa must show a “a robust consensus of cases of persuasive authority.” Here,

there is no consensus to be found in the prior decisions that have resolved a fact-

intensive Fourth Amendment issue under a governing standard that requires judges

to “allow[] officers to draw on their own experience and specialized training to make

inferences from and deductions about the cumulative information available to them

that might well elude an untrained person.” Arvizu, 534 U.S. at 273 (quotation

omitted). Trooper White is therefore entitled to qualified immunity from De La

Rosa’s damage claims.

The Memorandum and Order of the district court dated September 18, 2015,

is reversed in part. The case is remanded with directions to enter summary judgment

dismissing all claims against Trooper Mark White.

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