Richard Pike v. J. Hester

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD PIKE, No. 16-16764

Plaintiff-Appellee,

D.C. No.

v. 3:12-cv-00283-

RCJ-VPC

J. BRAD HESTER, in his official and

individual capacities,

Defendant-Appellant, OPINION

and

SEAN MUNSON, in his official and

individual capacities; RICK KEEMA,

in his official and individual

capacities; JIM PITTS, in his official

and individual capacities; ELKO

COUNTY SHERIFF’S OFFICE, a

government entity; ELKO COUNTY,

Nevada, a government entity,

Defendants.

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, Senior District Judge, Presiding

2 PIKE V. HESTER

Submitted October 10, 2017*

San Francisco, California

Filed June 6, 2018

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Tashima;

Dissent by Judge O’Scannlain

*

The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2)(C).

PIKE V. HESTER 3

SUMMARY**

Civil Rights

The panel affirmed the district court’s summary judgment

denying qualified immunity to a sheriff’s sergeant in an

action brought pursuant to 42 U.S.C. § 1983 alleging that the

sergeant violated plaintiff’s Fourth Amendment rights when

he conducted an after-hours dog search of plaintiff’s locked

office.

Prior to filing his § 1983 action, plaintiff had petitioned

a county justice court for a temporary restraining order

against the sergeant, which the state court justices initially

granted, and subsequently extended for two months. The

district court determined that issue preclusion did not apply,

but that on the merits, the search violated the Fourth

Amendment, and that a reasonable officer would have been

aware that the search was unlawful. Accordingly, the district

court denied qualified immunity to the sergeant.

The panel held that issue preclusion did apply and that the

panel was bound by the state justice’s conclusion that the

sergeant violated the Fourth Amendment. Applying Nevada

issue preclusion law, the panel determined that: (1) the

alleged Fourth Amendment violation was at issue in the state

court proceeding; (2) the sergeant was a party; (3) the state

justice’s order extending the protective order was final for

issue preclusion purposes; and (4) the state justices actually

and necessarily litigated the Fourth Amendment issue and

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 PIKE V. HESTER

found that the search was not lawful. The panel further held

that it was clearly established at the time of the search that the

sergeant’s conduct violated plaintiff’s rights.

Dissenting, Judge O’Scannlain disagreed with the

majority’s holding that a two-month restraining order,

granted by a state court of limited jurisdiction, has issue-

preclusive effect with respect to a § 1983 cause of action

premised on a constitutional violation and requesting

compensatory and punitive damages. Judge O’Scannlain

stated that plaintiff failed to properly raise issue preclusion

on appeal, that issue preclusion was not applicable in any

event, and that because the issue of whether the sergeant had

permission to search was critical, he would reverse the

district court’s summary judgment and remand for further

proceedings.

COUNSEL

Katherine F. Parks, Brian M. Brown, and Kevin A. Pick,

Thorndal Armstrong Delk Balkenbush & Eisinger, Reno,

Nevada, for Defendant-Appellant.

John Neil Stephenson, Stephenson Law PLLC, Reno,

Nevada, for Plaintiff-Appellee.

PIKE V. HESTER 5

OPINION

TASHIMA, Circuit Judge:

In 2011, J. Brad Hester, a sheriff’s sergeant, conducted an

after-hours dog search of Richard Pike’s locked office. Pike

successfully petitioned a state court for an order of protection

against Hester. Pike later sued Hester in federal district court,

claiming that the search violated his Fourth Amendment

rights. In district court, Pike moved to preclude from

relitigation certain issues he said the state court had already

decided. The district court granted the motion in part. Pike

later moved for offensive summary judgment on his Fourth

Amendment claim. The district court granted the motion,

concluding that Hester’s search violated the Fourth

Amendment and that Hester was not entitled to qualified

immunity because Pike’s right to be free from such a search

was clearly established. Hester appealed.

We too conclude that Hester violated Pike’s clearly

established constitutional rights, although we depart from the

district court’s analysis in some respects. First, we hold that

the state justice court’s conclusion that Hester violated the

Fourth Amendment is precluded from relitigation. Second,

because it was clearly established at the time of the search

that Hester’s conduct violated Pike’s rights, Hester is not

entitled to qualified immunity. We affirm.

I. Factual Background

In 2011, Hester was a sergeant in the Elko County

Sheriff’s Office. Pike was the Elko County recreation

director and the assistant high school football coach in the

Elko County unincorporated town of Jackpot, Nevada. In his

6 PIKE V. HESTER

role as recreation director, Pike worked out of an office –

shared with his assistant – at the Jackpot Recreation Center

(the “Center”) in Jackpot. Pike and Hester did not have a

friendly relationship, which Hester attributed to Pike’s

alleged mistreatment of one of Hester’s sons in 2007. Hester

and Pike’s relationship soured in October 2007, when, Hester

alleges, Pike hit Hester’s son, a high school football player,

during a football game that Pike was coaching. Hester’s son

was then benched for the second half of the game and

suspended for the following game for arguing with Pike.

A. The Search of Pike’s Office

In August or September 2011, Hester activated the sirens

on his patrol car to pull over Lynn Forsberg, the county

director of public works and Pike’s boss. Hester had a request

for Forsberg. Hester told Forsberg that he believed that

certain Center employees, including Pike, were “dealing

drugs” out of the building.1 Hester asked Forsberg if he

“would care” if Hester searched the Center. Forsberg and

Hester dispute how Forsberg responded. Forsberg says he

told Hester that “if he wanted to search the recreation center,

1

Although Hester does not contend the search was supported by

probable cause, he said in a deposition that he had received information

about drug activity at the Center from Richard Pickers, a state law

enforcement investigator. Pickers testified that an informant told him

about drug activity at the Center, but Pickers did not recall the informant

mentioning a specific Center employee’s name. By contrast, Hester

testified that Pickers identified someone else as a Center employee who

was dealing drugs. Pike became a target based on information Hester

received from lay sources, including Pike’s ex-girlfriend. Notably,

Pickers passed his information to Hester before Pickers left the Nevada

Investigation Division in April 2011 – at least several months before the

search.

PIKE V. HESTER 7

he could call me, I would come up and let him in.” Hester

says that Forsberg gave him unconditional permission to

search the Center “‘[a]nytime, day or night.’” Hester also

told Forsberg that he already had a key to the Center, which

prompted Forsberg to change the Center’s locks.

Soon thereafter, and without further talking to Forsberg,

Hester led a nighttime search of the Center.2 Hester, who was

off duty and in plainclothes, was accompanied by Deputy

Sean Munson, K-9 Deputy Mike Moore, and Moore’s drug

dog. Hester used his key to unlock the Center. The dog

searched the entire building in about ten minutes. As part of

the search, Hester unlocked the door to Pike’s office and

entered with Moore and the dog. The dog did not alert to

drugs anywhere in the office. The officers did not open any

drawers or touch any items in the office. Hester asked Moore

to have the dog sniff a file cabinet outside Pike’s office a

second time because the dog had scratched it on the first pass,

but the dog did not alert on the second pass. The officers did

not take any notes during the search and did not file a report

afterward.

The animosity between Pike and Hester escalated. Pike

learned of the search a few weeks later and filed a grievance

with the sheriff’s office. Some time after the search, Hester

met with the high school athletic director, Kim Smith, to

complain about Pike’s conduct as a football coach. Hester

also told Smith that Pike was “one of the biggest potheads in

town.” When Pike learned about that conversation, he asked

2

None of the parties or witnesses recalls the exact date of the search,

but it must have occurred shortly after Hester and Forsberg’s conversation,

as Forsberg changed the Center’s locks only “a few days” after learning

that Hester had a key.

8 PIKE V. HESTER

Smith to write a letter documenting her meeting with Hester.

Pike then complained to a sheriff’s office lieutenant a second

time.

In January 2012, after an internal affairs investigation, the

sheriff’s office suspended Hester without pay for 30 hours

because the search of Pike’s office was “conduct

unbecoming” an officer. The letter informing Hester of the

discipline did not mention the Smith meeting.

B. Justice Court Proceedings

On November 15, 2011, Pike petitioned the Elko County

Justice Court for a temporary restraining order (“TRO”)

because, he alleged, Hester was stalking him in violation of

state law. Nevada Revised Statutes § 200.575(1) provides:

A person who, without lawful authority,

willfully or maliciously engages in a course of

conduct that would cause a reasonable person

to feel terrorized frightened, intimidated,

harassed or fearful for the immediate safety of

a family or household member, and that

actually causes the victim to feel terrorized,

frightened, intimidated, harassed or fearful for

the immediate safety of a family or household

member, commits the crime of stalking.

Among the bases for Pike’s TRO petition was Hester’s search

of Pike’s office. Pike also claimed that after he had filed the

second grievance, Hester “repeatedly drove by [Pike’s]

residence and/or stopped and stared at him.” Without holding

a hearing, the justice court issued a TRO.

PIKE V. HESTER 9

Pike then applied for a two-month extension of the

protective order. The justice court held a hearing on

December 12, 2011, at which Pike, Hester, Forsberg, and

other witnesses testified. The court extended the protective

order and explained its decision in an addendum. It was not

disputed that Pike actually felt intimidated by Hester; thus,

the court explained, “The issue . . . is really whether Hester

‘without lawful authority’ willfully engaged in a course of

conduct that would cause a reasonable person to feel

intimidated.” The justice court continued:

Neither party disputes that Hester directed

a “dog sniff” search of the Jackpot Recreation

Center without a warrant and outside the

presence of Forsberg . . . .

Given Forsberg’s testimony, and

especially given the animosity that existed

between Pike and Hester at the time of the

search, the court concludes that Hester did not

have lawful authority to search Pike’s office.

In a footnote, the court elaborated:

The court certainly cannot conclude that there

was probable cause to search Pike’s office on

this record. On this record, the court

concludes that Hester’s desire to search was

colored by his animosity toward Pike. At this

point, the court cannot conclude that the

search was either lawful under the Fourth

10 PIKE V. HESTER

Amendment . . . or done with NRS 200.571

“lawful authority.”

(Emphasis in original.)

The justice court extended the protective order once again

in March 2012. Hester did not appeal from either justice

court order.

C. District Court Proceedings

In May 2012, Pike sued Hester and other defendants in

federal court, claiming, inter alia, that the office search

violated the Fourth Amendment. Pike then moved the district

court to apply issue preclusion based on the justice court’s

conclusions that “Forsberg did not give Defendant Hester

authority to search the Jackpot Recreation Center outside of

Mr. Forsburg’s [sic] presence” and “Defendant Hester did not

have lawful authority at the time of the search.” The district

court granted the motion in part, explaining, “The justice

court also found that . . . ‘Hester did not have lawful authority

to search Pike’s office.’ . . . These specific findings, except

for the last finding insofar as it concerns an ultimate Fourth

Amendment violation, are precluded from relitigation.” In a

footnote, the district court clarified why it was not granting

preclusive effect to the justice court’s Fourth Amendment

conclusions:

Although the alleged Fourth Amendment

violation was not directly at issue in the

justice court, the justice court does appear to

have held that Hester exceeded his lawful

authority as a Nevada peace officer to conduct

the search. Still, because the ultimate issue

PIKE V. HESTER 11

(whether to issue an [extended protective

order]) did not require a finding of a Fourth

Amendment violation, that issue was not

necessarily determined.

Pike then moved for offensive summary judgment on his

Fourth Amendment claim. Initially, the district court granted

the motion without the benefit of responsive briefing, as the

court had concluded that defendants failed to timely respond.

On appeal, this court vacated the order because the district

court had miscalculated the due date of defendants’

opposition and remanded for the district court to consider

Pike’s motion in light of defendants’ brief. Pike v. Munson,

623 F. App’x 887 (9th Cir. 2015).

On remand, the district court granted Pike’s motion for

summary judgment against Hester. In so doing, the district

court noted that in its earlier issue preclusion order it had

concluded that the “ultimate issue of a Fourth Amendment

violation had not been directly litigated” and was not

precluded. The district court then assessed, on the merits,

whether Hester’s search violated the Fourth Amendment.

The court determined that Pike had a reasonable expectation

of privacy in his office and that Forsberg never consented to

the search. The district court further held that “it would have

been clear to a reasonable officer in Hester’s position that the

warrantless dog sniff of Plaintiff’s private office space was

unlawful.” As a result, the district court granted Pike’s

motion for summary judgment and denied Hester qualified

immunity. Hester timely appealed.3

3

The court granted summary judgment based on qualified immunity

to the other sheriff’s office defendants. They are not parties to this appeal.

12 PIKE V. HESTER

II. Standard of Review

We have jurisdiction under 28 U.S.C. § 1291 and review

de novo the district court’s grant of summary judgment and

denial of qualified immunity. Furnace v. Sullivan, 705 F.3d

1021, 1026 (9th Cir. 2013). “Summary judgment is

appropriate only if, taking the evidence and all reasonable

inferences drawn therefrom in the light most favorable to the

non-moving party, there are no genuine issues of material fact

and the moving party is entitled to judgment as a matter of

law.” Torres v. City of Madera, 648 F.3d 1119, 1123 (9th

Cir. 2011). We may affirm a grant of summary judgment on

any basis supported by the record. McSherry v. City of Long

Beach, 584 F.3d 1129, 1131 (9th Cir. 2009).

We review questions of issue preclusion de novo. Clark

v. Bear Stearns & Co., Inc., 966 F.2d 1318, 1320 (9th Cir.

1992).

III. Discussion

We are asked to decide whether Hester is entitled to

qualified immunity for his search of Pike’s office. A

government official is entitled to qualified immunity if his

“conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Our inquiry thus has two steps: “(1) whether the defendant

violated a constitutional right, and (2) whether that right was

clearly established at the time of the alleged violation.”

Isayeva v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 945 (9th

Cir. 2017). A court may address either step first. Pearson,

555 U.S. at 236.

PIKE V. HESTER 13

A. Constitutional Violation & Issue Preclusion

We first assess whether Hester violated Pike’s Fourth

Amendment rights. The Fourth Amendment prohibits

“unreasonable searches and seizures” by government

officials. U.S. Const. amend. IV. “[A] Fourth Amendment

search occurs when the government violates a subjective

expectation of privacy that society recognizes as reasonable.”

United States v. Gonzalez, 328 F.3d 543, 546 (9th Cir. 2003)

(alteration in original) (quoting Kyllo v. United States,

533 U.S. 27, 33 (2001)). A warrantless search is

presumptively unreasonable, but valid consent is an exception

to the warrant requirement. United States v. Ziegler, 474 F.3d

1184, 1190–91 (9th Cir. 2007); see also Georgia v. Randolph,

547 U.S. 103, 106 (2006) (“The Fourth Amendment

recognizes a valid warrantless entry and search of premises

when police obtain the voluntary consent of an occupant who

shares, or is reasonably believed to share, authority over the

area . . . .”).

On appeal, Hester challenges Pike’s Fourth Amendment

claim on multiple substantive grounds.4 We decline to reach

Hester’s other arguments because we determine that issue

preclusion applies, and that we are bound by the justice

court’s conclusion that Hester violated the Fourth

Amendment.5

4

Specifically, Hester contends that Pike had no reasonable

expectation of privacy in his shared office, that the search was actually a

de minimis “sweep” not subject to the Fourth Amendment, and that even

if the Fourth Amendment applies, Forsberg consented to the search.

5

The dissent asserts that Pike “explicitly abandon[ed]” this argument,

Dissent at 25–26, but cites only a portion of Pike’s brief in which he

describes the district court’s conclusions. At any rate, we may affirm

14 PIKE V. HESTER

Hester contends that the district court’s grant of summary

judgment for Pike should be reversed because, at least in part,

the court wrongly applied issue preclusion to Pike’s Fourth

Amendment claim based on the justice court’s finding that

Pike was entitled to an extended protective order. In fact, the

district court expressly disclaimed doing so in both its

original order applying preclusion and in the summary

judgment order on remand, explaining that the “ultimate issue

of a Fourth Amendment violation” was not precluded. The

district court instead granted Pike summary judgment on the

merits. However, on appeal we conclude – contra the district

court – that issue preclusion resolves whether Hester violated

the Fourth Amendment.

Issue preclusion, or collateral estoppel, precludes

relitigation of an issue already litigated and determined in a

previous proceeding between the same parties. Clark,

966 F.2d at 1320. A federal court applying issue preclusion

“must give state court judgments the preclusive effect that

those judgments would enjoy under the law of the state in

which the judgment was rendered.” Far Out Prods., Inc. v.

Oskar, 247 F.3d 986, 993 (9th Cir. 2001). In this case,

because we examine the preclusive effect of a Nevada state

court decision, we apply Nevada issue preclusion law.

Under Nevada law, issue preclusion applies when four

elements are met: the issues in both cases are identical, the

first ruling was “on the merits and . . . final,” the party against

whom preclusion is sought was a party to or in privity with a

party to the previous case, and “the issue was actually and

necessarily litigated” in the previous case. Five Star Capital

summary judgment on any ground supported by the record. McSherry,

584 F.3d at 1131.

PIKE V. HESTER 15

Corp. v. Ruby, 194 P.3d 709, 713 (Nev. 2008). The party

seeking to apply issue preclusion bears the burden of proving

that it applies. Bower v. Harrah’s Laughlin, Inc., 215 P.3d

709, 718 (Nev. 2009). Issue preclusion applies equally to

issues of fact or law. Univ. of Nev. v. Tarkanian, 879 P.2d

1180, 1191 (Nev. 1994).

First, we ask whether the Fourth Amendment was at issue

in the justice court. The issues in two cases may be identical

“even though the causes of action are substantially different,

if the same fact issue is presented.” LaForge v. Nev., Univ.

& Cmty. Coll. Sys. of Nev., 997 P.2d 130, 134 (Nev. 2000).

Thus it does not matter that Pike’s cause of action in the first

case was for stalking, while in this case he claims a Fourth

Amendment violation.

Under the Nevada stalking statute, a person stalks another

only if, among other things, he lacks “lawful authority” for

his actions. Nev. Rev. Stat. § 200.575(1).6 The statute

defines actions taken with lawful authority to include “acts

which are otherwise protected or authorized by constitutional

or statutory law . . . including, but not limited to . . . [t]he

activities of a person that are carried out in the normal course

of his or her lawful employment.” Id. § 200.575(9)(f)(3).

Pike contended that Hester stalked him via the search, while

Hester contended that Forsberg authorized the search. Thus,

whether the search violated Pike’s Fourth Amendment rights

– in the form of whether Hester had lawful authority for his

action – was at issue before the justice court. Indeed, the

justice court explicitly stated, “At this point, the court cannot

6

The justice court concluded that the other elements of stalking,

including that Pike felt intimidated by Hester, were met.

16 PIKE V. HESTER

conclude that the search was . . . lawful under the Fourth

Amendment.”

Second, Hester contends that the parties to the justice

court action were not identical to those before the district

court because, in federal court, Pike sued additional officers

and Elko County entities. However, Nevada law only

requires that the party against whom preclusion is sought

have been a party to the first proceeding. Five Star Capital,

194 P.3d at 713. Hester, against whom Pike seeks to apply

preclusion, was a party to the justice court case.

Hester contends that the third element of issue preclusion

is not satisfied because the justice court’s decision was not

final. “[T]he initial ruling must have been on the merits and

become final.” Id. Nevada courts have not confronted the

precise question of whether an extended protective order is

final for issue preclusion purposes. In developing the state’s

preclusion law, the Nevada Supreme Court has sought

guidance from the Restatement of Judgments. See, e.g.,

Tarkanian, 879 P.2d at 1191. That authority counsels, “that

the parties were fully heard, that the court supported its

decision with a reasoned opinion, that the decision was

subject to appeal or was in fact reviewed on appeal, are

factors supporting the conclusion that the decision is final for

the purpose of preclusion.” Restatement (Second) of

Judgments § 13 (1982). All those factors are present in this

case. The justice court held a hearing,7 reached the merits of

Pike’s stalking claim, and issued an order explaining its

decision. Hester had a statutory right to appeal the justice

court’s extended order, although he did not do so. See Nev.

7

A court is required to hold an adversarial hearing before issuing an

extended order. Nev. Rev. Stat. § 200.591(3).

PIKE V. HESTER 17

Rev. Stat. § 200.591(4). As a result, we conclude that the

justice court’s extended order is clearly final for issue

preclusion purposes.

Lastly, we assess whether the Fourth Amendment issue

was “actually and necessarily litigated” in the justice court.

The justice court’s decision of the issue must have been

“necessary to the judgment.” Alcantara ex rel. Alcantara v.

Wal-Mart Stores, Inc., 321 P.3d 912, 918 (Nev. 2014)

(emphasis omitted) (quoting Tarkanian, 879 P. 2d at 1191).

If the deciding court could have reached its conclusion

without resolving the disputed issue, the issue was not

necessary to the judgment. Frei ex rel. Frei v. Goodsell,

305 P.3d 70, 73 (Nev. 2013). In addition, the party against

whom preclusion is sought must have actually litigated the

issue. Howard v. Sandoval (In re Sandoval), 232 P.3d 422,

424 (Nev. 2010). For example, “[w]hen a default judgment

is entered where an answer has not been filed, the issue

presented was not actually and necessarily litigated[.]” Id. at

425.

In the protective order proceeding, the justice court

concluded that the search was not “lawful under the Fourth

Amendment.” The court concluded that Hester lacked

probable cause for the search and that “[g]iven Forsberg’s

testimony,” Hester did not have permission to search the

building. To determine that Hester lacked probable cause and

consent, the justice court necessarily determined that Pike had

a reasonable expectation of privacy in his office and that the

Fourth Amendment applied to Hester’s search. If the Fourth

Amendment were not implicated, Hester would not have

needed consent to search the office. See Ziegler, 474 F.3d at

1190–91 (addressing government’s consent justification only

18 PIKE V. HESTER

after determining that employee had a reasonable expectation

of privacy in his office).

In this case, the district court concluded – without

explanation – that the “ultimate issue of a Fourth Amendment

violation” was not precluded from relitigation because it was

not essential to the justice court’s ruling. At the same time,

the district court held that the justice court’s conclusion that

“Hester did not have lawful authority to search Pike’s office”

was precluded from relitigation. However, the justice court’s

two conclusions necessarily go hand-in-hand, both were

essential to the judgment. The court could only have issued

the protective order if it concluded that Hester lacked lawful

authority – meaning the search was not “protected or

authorized by constitutional or statutory law,” such as the

Fourth Amendment – to take the actions in question. See

Nev. Rev. Stat. § 200.575(9)(f). The justice court’s

conclusion that Hester’s search was not “lawful under the

Fourth Amendment” was therefore essential to its lawful

authority determination.

Moreover, the justice court’s conclusion that the search

was conducted without lawful authority was essential to the

judgment. Although the search was one of three factual bases

for Pike’s protective order petition, the justice court discussed

only the search at any length. The justice court also explicitly

tethered Hester’s search to the Nevada statute at issue,

concluding that Hester “did not have lawful authority to

search Pike’s office.” See Nev. Rev. Stat. § 200.575(1). As

to the other bases for Pike’s application, the justice court

concluded that testimony about Hester’s “stop-and-stare”

activities was credible, but did not conclude that Hester

lacked lawful authority to so act. The justice court did not

even discuss Hester’s meeting with Smith. Only the search

PIKE V. HESTER 19

supports the justice court’s stalking finding. The justice

court’s resolution of the Fourth Amendment issue was

therefore essential to the extension of the protective order.

The issue was also actually litigated. Both Pike and

Hester presented witness testimony at a one-day hearing.

Forsberg and Hester testified about whether Forsberg

consented to Hester’s search. The justice court found that

Forsberg was credible and rejected Hester’s version of the

events.

Finally, Hester had an incentive to litigate in the justice

court. See Restatement (Second) of Judgments § 28 (1982).

Although the dissent seizes on Pike’s attorney’s statement in

the justice court that “there was no Fourth Amendment rights

violated here,” Pike’s attorney went on to emphasize that

“[t]he question is what was the basis for the search” and to

contend that Hester lacked Forsberg’s consent. As the dissent

acknowledges, “whether Hester had permission to search is

critical to this case.” Dissent at 32. Setting aside whether

Pike’s attorney’s statement bears on Hester’s incentive to

litigate, it is clear that whether Hester had consent to search

– and thus whether he violated the Fourth Amendment – was

at issue in the justice court and that Hester had every

incentive to litigate it.8

8

The dissent also contends that the issuance of a protective order on

the basis of criminal stalking against Hester, a law enforcement officer,

was such small potatoes that Hester had no incentive to litigate it. Dissent

at 29–30. However, Hester might face imprisonment or a fine if he

violated the order. This case is not one in which Hester “had good reason

not to contest an issue vigorously during the first action.” Maciel v.

Comm’r, 489 F.3d 1018, 1023 (9th Cir. 2007).

20 PIKE V. HESTER

Accordingly, the justice court’s conclusion that Hester’s

search was not lawful under the Fourth Amendment meets

Nevada’s requirements for issue preclusion. We are bound

by that court’s conclusion.

B. Clearly Established Law

The conclusion that Hester violated Pike’s constitutional

rights does not end our qualified immunity inquiry. We must

also ask whether Hester’s conduct violated clearly established

law. If the right was not clearly established, Hester is entitled

to qualified immunity.

For qualified immunity purposes, a right is clearly

established if “[t]he contours of that right [are] sufficiently

clear that a reasonable official would understand that what he

is doing violates that right.” Calabretta v. Floyd, 189 F. 3d

808, 812 (9th Cir. 1999) (quoting Anderson v. Creighton,

483 U.S. 635, 640 (1984)). An exact factual match is not

required; rather, “the unlawfulness must be apparent.” Id.;

see also Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065

(9th Cir. 2006) (holding that preexisting law must provide

“fair warning”). Qualified immunity protects “all but the

plainly incompetent or those who knowingly violate the law.”

Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015 (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).

Hester first contends that no single case has held that “a

consensual K-9 sniff-sweep of a public employee’s shared

office” is unlawful. However, the justice court concluded the

search was not consensual. The relevant question is whether

a no-consent dog search of a public employee’s office was

clearly unlawful in 2011, when the search occurred. Supreme

Court and Ninth Circuit precedent easily resolve that question

PIKE V. HESTER 21

in the affirmative. See Chappell v. Mandeville, 706 F.3d

1052, 1056 (9th Cir. 2013) (stating that a court should look

first to binding precedent to determine if a right is clearly

established).9

In O’Connor v. Ortega, 480 U.S. 709 (1987), the

Supreme Court held that “[s]earches . . . by government

employers or supervisors of the private property of their

employees . . . are subject to the restraints of the Fourth

Amendment.” Id. at 715; see also Mancusi v. DeForte,

392 U.S. 364, 369 (1968) (holding that employee enjoyed a

reasonable expectation of privacy in a shared office); Ziegler,

474 F.3d at 1191 (holding that officers’ search of a private

office violated the Fourth Amendment, absent consent).

Hester had fair warning that Pike enjoyed a reasonable

expectation of privacy in his office.

The fact that Hester’s search involved a dog does not

affect that conclusion. In 2011, it was clearly established that

dog sniff searches are exempt from Fourth Amendment

protection only when the dog and accompanying officer are

lawfully present. In United States v. Place, 462 U.S. 696,

707 (1983), the Court stated that a dog sniff of luggage “in a

public place” was not a Fourth Amendment search. See also

United States v. Beale, 736 F.2d 1289 (9th Cir. 1984) (en

banc) (holding that dog sniff of luggage in a public place is

not a Fourth Amendment search). Subsequently, courts have

9

For this reason, we also dispose of Hester’s argument that he is

protected by qualified immunity because he relied on a county dog search

policy. It is not clear that Hester’s search of Pike’s private locked office

accords with the policy, which permits searches only in “public facilities

or places.” Regardless, an officer may not rely on a department policy

that is contrary to clearly established law. Way v. Cty. of Ventura,

445 F.3d 1157, 1163 (9th Cir. 2006).

22 PIKE V. HESTER

upheld dog searches only when the dogs were in public places

or the target of the search was already lawfully detained. See,

e.g., Illinois v. Caballes, 543 U.S. 405, 409 (2005) (the “use

of a well-trained narcotics-detection dog” during lawful

traffic stop does not implicate the Fourth Amendment);

United States v. Lingenfelter, 997 F.2d 632 (9th Cir. 1993)

(dog sniff of commercial warehouse from public alley did not

implicate Fourth Amendment). Hester cites no case

extending dog sniff searches beyond those bounds.10

Accordingly, it was clearly established in 2011 that a dog

search of a public employee’s private office violates the

Fourth Amendment, absent consent. See Ziegler, 474 F.3d at

1191. Hester’s conduct violated Pike’s clearly established

right; therefore, he is not entitled to qualified immunity.

• ! •

The judgment of the district court is

AFFIRMED. The case is REMANDED to the district

court for a trial or other determination of damages on Pike’s

Fourth Amendment claim against Hester, and for a

determination of Pike’s remaining state law claims.

10

In Florida v. Jardines, 569 U.S. 1 (2013), decided after Hester’s

search, the Court held that a dog sniff on a homeowner’s curtilage was a

Fourth Amendment search because the dog and officer intruded on a

protected area. Id. at 11. The dissenting Justices did not dispute the pre-

Jardines principle that a dog sniff is a search if the dog is not lawfully

present; rather, they dissented on the basis that the dog and officer in

Jardines were lawfully present. See id. at 24 (Alito, J., dissenting).

PIKE V. HESTER 23

O’SCANNLAIN, Circuit Judge, dissenting:

The majority holds that a two-month restraining order,

granted by a state court of limited jurisdiction, has issue-

preclusive effect with respect to a § 1983 cause of action

premised on a constitutional violation and requesting

compensatory and punitive damages. This cannot be right.

I

A

The saga began in the Elko County Justice Court (Justice

Court), which has jurisdiction to issue protective orders

against “a person alleged to be committing the crime of

stalking, aggravated stalking or harassment.” Nev. Rev. Stat.

Ann. § 4.370(1)(q) (West 2017). The Justice Court has

authority to issue temporary or extended orders of protection

against stalking. See Nev. Rev. Stat. Ann. § 200.591(3) (West

2017).

On November 15, 2011, Richard Pike, an Elko County

recreation director and assistant high school football coach,

applied for a temporary restraining order against Elko County

sheriff’s sergeant J. Brad Hester. Pike applied on behalf of

himself and his two children, and the application rested on

several bases.

First, he alleged that Hester made false statements about

Pike to others. Hester apparently told Kim Smith, the high

school athletic director, that Pike was “one of the biggest

potheads in town.”

24 PIKE V. HESTER

Second, Pike alleged that Hester improperly searched his

office. See Majority Op. Part I.A. The genesis of this dispute

dates back to August 2011, when Hester and two deputies

conducted a search of the Jackpot Recreation Center (Center),

which included walking a drug dog through Pike’s office in

the Center. The search of the Center lasted 10 minutes and

uncovered no drugs. Hester claims that Lynn Forsberg—the

county supervisor and Pike’s boss—authorized him to search

the Center “[a]nytime, day or night.” Forsberg claims that he

told Hester “if he wanted to search the recreation center, he

could call me, I would come up and let him in.” Pike

acknowledges that, under County policy, Forsberg has

authority to search his office.

Third, Pike alleged that on at least several occasions,

Hester drove by Pike’s house and glared at him and his

family. Pike also claims that Hester drove by his place of

employment in a similar manner. This final incident

prompted Pike to file an application for a restraining order

against Hester.

The Justice Court issued an ex parte temporary restraining

order (TRO) against Hester on November 15, 2011. The TRO

was converted into a two-month extended order of protection

(EOP) on December 14, 2011. In granting the EOP, the

Justice Court explained that it could not “conclude that the

search was either lawful under the Fourth Amendment or

done with NRS 200.571 ‘lawful authority.’” But the Justice

Court also relied on “testimony about Hester’s ‘stop and

stare’ activities in front of Pike’s residence,” finding

testimony on the incident “both reliable and credible.”

Additionally, the court credited the testimony of Smith, to

whom Hester made the disparaging remarks about Pike. Thus,

PIKE V. HESTER 25

the Justice Court concluded that “for all of the foregoing

reasons,” the EOP would be granted for two months.

B

Pike later filed this suit against Hester and other

defendants in the District of Nevada, alleging, inter alia, that

Hester violated the Fourth Amendment pursuant to 42 U.S.C.

§ 1983. Pike seeks compensatory damages expected to

exceed $10,000, as well as punitive damages.

Pike moved the district court to give issue-preclusive

effect to several of the Justice Court’s findings. The district

court, while granting issue preclusion on some findings,

declined to grant issue preclusion on Pike’s constitutional

claim, since “the ultimate issue (whether to issue an EOP) did

not require a finding of a Fourth Amendment violation, that

issue was not necessarily determined.” Thus, the Justice

Court’s conclusion that Hester did not have lawful authority

to search Pike’s office was not precluded from relitigation

“insofar as it concern[ed] an ultimate Fourth Amendment

violation.”

Pike later moved for summary judgment on the question

of qualified immunity. The court granted summary judgment

in favor of Pike, finding that there was no genuine question

of material fact that Hester’s search violated clearly

established Fourth Amendment law. However, the court

reaffirmed that “the ultimate issue of a Fourth Amendment

violation had not been directly litigated” in the Justice Court.

Pike does not argue that the district court erred by

refusing to grant issue-preclusive effect to the Justice Court’s

Fourth Amendment determination; indeed, Pike explicitly

26 PIKE V. HESTER

abandons any argument to this effect, admitting that “[t]he

findings by the Elko Justice Court in its extended protection

order were entitled to preclusive [effect] against Mr. Hester

but only as to Mr. Pike’s invasion of privacy and intentional

infliction of emotional distress torts, not his Fourth

Amendment claim under §1983.”

On appeal, Hester instead challenges the merits of the

district court’s order granting summary judgment to Pike on

the issue of qualified immunity. Nonetheless, the majority,

fashioning an argument that Pike declines to raise, affirms the

district court’s summary judgment order by stretching the

issue preclusion doctrine to cover a situation that neither

party, nor the district court, presses upon us. Because I cannot

agree with the majority’s opinion, I respectfully dissent.

II

A

Federal courts “can give the state proceedings no greater

preclusive effect than the state courts would.” Shaw v. State

of Cal. Dep’t of Alcoholic Bev. Control, 788 F.2d 600, 607

(9th Cir. 1986) (citing Marrese v. Am. Acad. of Orthopaedic

Surgeons, 470 U.S. 373, 386 (1985)). Thus, in determining

whether the EOP should be preclusive in the instant action,

we are bound by Nevada law. See Allen v. McCurry, 449 U.S.

90, 96 (1980).

Under Nevada law, the following four factors are

necessary for the application of issue preclusion: “‘(1) the

issue decided in the prior litigation must be identical to the

issue presented in the current action; (2) the initial ruling

must have been on the merits and have become final; (3) the

PIKE V. HESTER 27

party against whom the judgment is asserted must have been

a party or in privity with a party to the prior litigation;’ and

(4) the issue was actually and necessarily litigated.” Five Star

Capital Corp. v. Ruby, 194 P.3d 709, 713 (Nev. 2008)

(alterations omitted) (quoting Univ. of Nevada v. Tarkanian,

879 P.2d 1180, 1191 (Nev. 1994)). The burden to make this

showing falls on Pike. See Bower v. Harrah’s Laughlin, Inc.,

215 P.3d 709, 718 (Nev. 2009).

B

Additionally, the application of issue preclusion is

premised on the widely recognized understanding that the

precluded party “have an adequate opportunity or incentive

to obtain a full and fair adjudication in the initial action.”

Restatement (Second) of Judgments § 28 (Am. Law. Inst.

1982).1

This fundamental exception to the issue preclusion

doctrine has roots in Nevada law, as issue preclusion “is

based upon the sound public policy of limiting litigation by

preventing a party who had one full and fair opportunity to

litigate an issue from again drawing it into controversy.”

Bower, 215 P.3d at 718 (internal quotations omitted)

(emphasis added). And “[t]he most general independent

concern reflected in the limitation of issue preclusion by the

full and fair opportunity requirement goes to the incentive to

1

The Supreme Court of Nevada has a “long-standing reliance on the

Restatement (Second) of Judgments in the issue and claim preclusion

context.” Alcantara ex rel. Alcantara v. Wal-Mart Stores, Inc., 321 P.3d

912, 917 (Nev. 2014). It has favorably looked to the Restatement (Second)

of Judgments § 28 in the issue preclusion setting. See Personhood Nevada

v. Bristol, 245 P.3d 572, 576 (Nev. 2010).

28 PIKE V. HESTER

litigate vigorously in the first action.” 18 Charles Alan

Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice and Procedure § 4423 (3d ed. 2017) (emphasis

added). Therefore, Nevada’s requirement that a party have a

“full and fair opportunity to litigate,” Bower, 215 P.3d at 718,

recognizes the common law concern that, in some instances,

“[t]he stakes in the first action may be so small that extensive

effort is not reasonable.” 18 Charles Alan Wright, Arthur R.

Miller & Edward H. Cooper, Federal Practice and Procedure

§ 4423 (3d ed. 2017).

Appreciating this concern, the Supreme Court has

cautioned that “[i]ssue preclusion may be inapt if ‘the amount

in controversy in the first action was so small in relation to

the amount in controversy in the second that preclusion

would be plainly unfair.’” B & B Hardware, Inc. v. Hargis

Indus., Inc., 135 S. Ct. 1293, 1309 (2015) (alterations

removed) (quoting Restatement (Second) of Judgments § 28

cmt. j). As the Court noted, “few litigants would spend

$50,000 to defend a $5,000 claim.” Id. (quoting 18 Charles

Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice & Procedure § 4423 (2d ed. 2002)).

Following this course, every federal court of appeals

considers one’s incentive to litigate in the collateral estoppel

context. See, e.g., Canonsburg Gen. Hosp. v. Burwell,

807 F.3d 295, 306 (D.C. Cir. 2015); DeGuelle v. Camilli,

724 F.3d 933, 935 (7th Cir. 2013); Kosinski v. Comm’r,

541 F.3d 671, 677 (6th Cir. 2008); Maciel v. Comm’r,

489 F.3d 1018, 1023 (9th Cir. 2007); Jean Alexander

Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 250 (3d

Cir. 2006); Salguero v. City of Clovis, 366 F.3d 1168, 1174

(10th Cir. 2004); Simmons v. O’Brien, 77 F.3d 1093, 1095

(8th Cir. 1996); In re Belmont Realty Corp., 11 F.3d 1092,

PIKE V. HESTER 29

1097 (1st Cir. 1993); Sun Towers, Inc. v. Heckler, 725 F.2d

315, 322 n.7 (5th Cir. 1984); Cotton States Mut. Ins. Co. v.

Anderson, 749 F.2d 663, 666 (11th Cir. 1984); Wickham

Contracting Co. v. Bd. of Educ. of City of New York, 715 F.2d

21, 28 (2d Cir. 1983); Prosise v. Haring, 667 F.2d 1133, 1141

(4th Cir. 1981).

C

I respectfully suggest that the majority’s failure to

consider this foundational principle of collateral estoppel is

fatal to its conclusion.

First, and most importantly, the Fourth Amendment was

mentioned just once over the course of the one-day hearing

and such invocation was when Pike’s counsel admitted that

“there was no Fourth Amendment rights violated here.” If

Pike’s counsel conceded at the EOP hearing that Hester

didn’t violate the Fourth Amendment, how could Hester be

said to have had any incentive—let alone a vigorous one—to

litigate such question?

Second, the Justice Court is designed to resolve small

claims in an efficient and prompt manner. See Nev. Rev. Stat.

Ann. § 4.370 (West 2017) (limiting jurisdiction to claims

under $15,000, protective orders against harassment or

stalking, and certain misdemeanors). Indeed, the entire

hearing over the EOP lasted just one day. And at the one-day

hearing, Hester’s counsel told the judge that he would not

argue about “silly stuff”—such as objecting when cross-

examination went beyond the scope of direct

examination—so the judge could “rule and we can go all

home on a Monday.” In this vein, the judge noted at the

outset that “[t]hese hearings are pretty darn informal.” Alas,

30 PIKE V. HESTER

according to the majority, such a breezy proceeding,

dispensing with basic rules of evidence, was a suitable setting

for Hester to litigate vigorously constitutional law.2

Moreover, the application of issue preclusion in this

setting is especially unwise, as it threatens to turn Justice

Court proceedings—tailored to the prompt resolution of small

claims and other disputes—into full-blown trials tasked with

uncovering whether or not a purported search violated the

Fourth Amendment.

Collateral estoppel “is an equitable doctrine,” not an

inexorable command. 46 Am. Jur. 2d Judgments § 469

(2018). Pike’s counsel conceded that the Fourth Amendment

was not at issue, neutering any prospect that Hester could

have harbored a strong incentive to litigate vigorously the

merits of that question. Therefore, I believe it improper to

grant issue preclusive effect to the EOP in this setting.

III

Instead of giving preclusive effect to the Justice Court’s

Fourth Amendment determination, we should reverse the

district court’s grant of summary judgment and remand for

trial. As the record shows, conflicting testimony over Hester’s

authority to search Pike’s office plainly creates a genuine

2

Pike’s attorney’s statement that “the question is what was the basis

for the search” is hardly illuminative, contrary to the majority’s view. The

attorney was referring to the basis for Hester’s suspicion of Pike, not

whether Forsberg consented to the search. As the attorney put it, “[t]he

issue is not just a semantics having to do with day or night with Mr.

Forsberg. It has to do with what information that the deputy gave to Mr.

Forsberg to get him to okay the search.”

PIKE V. HESTER 31

dispute of material fact. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

A

Forsberg testified that he told Hester, “if [Hester] wanted

to search the recreation center, he could call me, I would

come up and let him in.” Hester, on the other hand, testified

that Forsberg told Hester he could conduct a search

“[a]nytime, day or night.”3

As the non-moving party, evidence must be construed in

the light most favorable to Hester. Tolan v. Cotton, 134 S. Ct.

1861, 1866, 188 L. Ed. 2d 895 (2014) (“Our qualified-

immunity cases illustrate the importance of drawing

inferences in favor of the nonmovant.”). Yet, the district court

utterly ignored Hester’s testimony—not even bothering to

construe it at all, let alone in a favorable light—and simply

adopted wholesale Forsberg’s recollection of events. Yet,

Hester offered a completely different version of their

conversation, which creates a genuine dispute of fact as to

whether Hester was authorized to search Pike’s office.4

3

It appears uncontested that the search occurred within a few days of

this conversation.

4

This also corrupts the majority opinion’s discussion on clearly

established law. As the Supreme Court has noted, “courts must take care

not to define a case’s ‘context’ in a manner that imports genuinely

disputed factual propositions.” Tolan, 134 S. Ct. at 1866 (2014) (quoting

Brosseau v. Haugen, 543 U.S. 194, 195, 198 (2004) (per curiam)). By

asking whether a “no-consent dog search of a public employee’s office

was clearly unlawful,” the majority’s opinion imports the dispute over

consent into the description of the right at issue.

32 PIKE V. HESTER

B

And, indeed, whether Hester had permission to search is

critical to this case. Anderson, 477 U.S. at 248 (holding that

a factual dispute is material if it “might affect the outcome of

the suit”). If Hester received consent from Forsberg to search

Pike’s office, there was likely no Fourth Amendment

violation. “The Fourth Amendment recognizes a valid

warrantless entry and search of premises when police obtain

the voluntary consent of an occupant who shares, or is

reasonably believed to share, authority over the area.”

Georgia v. Randolph, 547 U.S. 103, 106 (2006). Pike

admitted that he understood that the County handbook policy

allowed Forsberg—his boss—to search his office. We have

held that an employee’s privacy interest “may be subject to

the possibility of an employer’s consent to a search of the

premises.” United States v. Ziegler, 474 F.3d 1184, 1191 (9th

Cir. 2007). Indeed, in Ziegler, “Frontline, as the employer,

could consent to a search of the [employee’s] office.” Id. at

1192. And the search here involved only a drug dog briefly

sniffing the exterior of a desk in Pike’s office, and a file

cabinet outside Pike’s office—hardly Pike’s personal

belongings. See O’Connor v. Ortega, 480 U.S. 709, 716

(1987) (plurality opinion) (“The appropriate standard for a

workplace search does not necessarily apply to a piece of

closed personal luggage, a handbag or a briefcase that

happens to be within the employer’s business address.”).

Under these circumstances, Forsberg, similar to the employer

in Ziegler “could give valid consent to a search . . . because

the [desk] is the type of workplace property that remains

within the control of the employer ‘even if the employee has

placed personal items in it.’” Id. at 1191 (alterations

removed) (quoting O’Connor, 480 U.S. at 716). As a result,

PIKE V. HESTER 33

under these circumstances, Forsberg could give valid consent

to search Pike’s office.5

IV

I would reverse the district court’s grant of summary

judgment and remand to the district court for further

proceedings. Whether a Fourth Amendment violation

occurred should be resolved at trial. See Tortu v. Las Vegas

Metro. Police Dep’t, 556 F.3d 1075, 1085 (9th Cir. 2009).

5

Although Forsberg had actual authority to search Pike’s office, the

government may alternatively obtain valid consent from a third party

when the officer “reasonably believe[s] that the third party has actual

authority to consent.” United States v. Fultz, 146 F.3d 1102, 1105 (9th

Cir. 1998). Hester asked Forsberg’s permission because Forsberg had

“final say” over the building. This was not an unreasonable conclusion

given that Forsberg is the county supervisor and Pike’s boss.