Abilio Hernandez v. Jason Boles

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0032p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ABILIO HERNANDEZ; LAZARO BETANCOURT; NORGE ┐

RODRIGUEZ; JOSE PEREZ, │

Plaintiffs-Appellants, │

> No. 18-6281

│

v. │

│

│

JASON BOLES; DONNIE CLARK, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Eastern District of Tennessee at Winchester.

No. 4:17-cv-00025—Travis R. McDonough, District Judge.

Argued: July 30, 2019

Decided and Filed: January 30, 2020

Before: SILER, STRANCH, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Drew Justice, JUSTICE LAW OFFICE, Murfreesboro, Tennessee, for Appellants.

Amanda S. Jordan, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville,

Tennessee, for Appellees. ON BRIEF: Drew Justice, JUSTICE LAW OFFICE, Murfreesboro,

Tennessee, for Appellants. Amanda S. Jordan, Peako A. Jenkins, OFFICE OF THE

TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees.

_________________

OPINION

_________________

JANE B. STRANCH, Circuit Judge. Tennessee Highway Patrol Trooper Jason Boles

pulled Abilio Hernandez over for driving 77 miles per hour in a 70-mph zone. Boles checked

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Hernandez and Lazaro Betancourt, the front seat passenger and owner of the car, for warrants.

When the warrant check came back negative, Boles asked for and was refused consent to search

the car. Trooper Donnie Clark then ran a search for the names of all four occupants of the car

through a second, more comprehensive database, which was pending when a K-9 unit arrived.

The dog sniffed the outside of the stopped car, alerting to the odor of drugs, but the dog did not

alert again when allowed into the car, and the K-9 handler stated that the dog “didn’t hit.” After

checking with their supervisor, the Troopers manually searched the car and found a number of

re-encoded gift cards and suspected amphetamines. The four occupants of the car (hereafter

called collectively the “Hernandez-Plaintiffs”) were arrested and held for months in pre-trial

incarceration before all charges were ultimately dropped.

The Hernandez-Plaintiffs filed suit under 42 U.S.C. § 1983, alleging that the Troopers

violated the Fourth Amendment by (a) illegally searching the car and (b) unreasonably extending

the car stop. The district court granted qualified immunity to the Troopers on the car search

based on caselaw existing at that time. At trial, the jury found that the car stop was not

impermissibly prolonged. The district court denied the Hernandez-Plaintiffs’ Rule 50 motion for

judgment as a matter of law. Based on the state of the caselaw at the time of the events in

question and the standards governing Rule 50, we AFFIRM.

I. BACKGROUND

A. The Events of December 17, 2015

Hernandez was driving a Yukon SUV in Coffee County, Tennessee when Trooper Boles

clocked him driving 77 miles per hour in a 70-mph zone. Boles waited for Hernandez’s car to

exit Interstate 24, then pulled him over at the side of a local road at 11:52 a.m. Boles was part of

a Tennessee Highway Patrol unit called “Interdiction Plus” that “pull[s] people over for minor

traffic offenses and then investigate[s] them for more serious crimes.” His unit stops motorists

for traffic violations such as minor speeding infractions and then, if there are no “indicators” of

criminal activity, “they’re given a warning . . . and they’re released.” In this case, Boles did not

plan to issue Hernandez a ticket for speeding if he saw no such indicators; instead he planned

only “to issue him a warning citation.”

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Betancourt, owner of the Yukon, was sitting in the front passenger seat; Norge Rodriguez

and Jose Perez were sitting in the back seat. Boles approached the car and requested

Hernandez’s driver’s license, the car’s registration, and proof of insurance. Upon learning that

Betancourt owned the car, he also requested Betancourt’s license. Boles went back to his patrol

car and requested a warrant check from the National Criminal Information Center (NCIC). At

11:59 a.m., seven minutes into the stop, the dispatcher told Boles that the NCIC warrant check

was negative.

Boles returned to the Yukon, requested Hernandez to step out for questioning, then asked

where he was going, who was in the car, whether he had ever been in trouble, and so on.

Trooper Donnie Clark arrived during the questioning. Boles then attempted to question the other

occupants of the car but was stymied by their limited English. Hernandez and Betancourt

repeatedly denied having anything illegal in the car, but Betancourt refused to consent to a car

search. Boles told them to wait a few minutes, and Clark requested a K-9 unit.

Boles then obtained driver’s licenses from Rodriguez and Perez and ran NCIC warrant

checks on them as well. At about 12:13 p.m., dispatch told him that the warrant checks on

Rodriguez and Perez were also negative. Around 12:12 or 12:13 p.m., Clark called the Blue

Lightning Operations Center (BLOC), a more comprehensive database that Boles did not have

access to, to conduct a more detailed check on all four occupants of the car.

While the Troopers awaited the results from BLOC, a dog handler arrived with a K-9 unit

at about 12:17 p.m. The police dog sniffed the exterior of the Yukon, alerting to the odor of

drugs.1 The handler then opened the car doors and the rear compartment and let the drug dog

into the car to sniff the interior. The dog did not alert once inside the vehicle; instead, it ate some

fast food out of a bag. After the dog did not alert inside the car, the K-9 handler shook the hands

of all four occupants and gave them a thumbs up. The K-9 handler then told Clark, “Donnie, I’m

sorry, Bubba.”

1The dog’s handler testified that it alerts to drugs by sitting down. As the Hernandez-Plaintiffs note, the

dog cannot be seen sitting down on the Troopers’ dashcam video. But, on this video, it is impossible to see what the

dog is doing on the far side of the car. In any event, the Hernandez-Plaintiffs did not argue at summary judgment or

on appeal that the Troopers lacked probable cause to search the car because the drug dog never alerted.

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After the dog failed to alert, Clark received a return call from BLOC. Clark told Boles to

call their supervisor and tell him, “We’ve got a refusal, and the canine didn’t hit, and they’ve got

an extensive background—meth.” Boles received authorization to conduct a search, and Clark

searched the Yukon. Clark found some gift cards in the driver’s side door and a large number of

gift cards rubber-banded together, as well as a bag containing an unknown substance, in a bag in

the back seat. Clark later used a scanner to ascertain that the gift cards had been re-encoded with

credit card numbers.

The Hernandez-Plaintiffs were arrested for possession of 370 re-encoded gift cards and

15 grams of a substance believed to be methamphetamine. Hernandez, Betancourt, and Perez

were held in pre-trial incarceration for nine months until the criminal charges against them were

dismissed. Rodriguez was held in pre-trial incarceration for only three months before the

dismissal of charges because he was bailed out.

B. Procedural History

Both parties moved for summary judgment on the claims of an illegal car search and

unreasonable duration of the traffic stop. The district court granted summary judgment to the

Troopers on the car-stop claim based on qualified immunity, concluding that “[p]laintiffs have

not identified any legal authority clearly establishing, or even hinting at, their right to be free of

searches and seizures when a dog alerts to the outside of a vehicle, but not the inside.” The court

denied both parties’ motions on the prolongation of the stop. On the Troopers’ motion it held

that, viewing the facts in the light most favorable to the Hernandez-Plaintiffs, “[a] reasonable

jury could find that Boles unreasonably prolonged the stop in violation of the Fourth Amendment

when he began to further question Hernandez after receiving a negative NCIC report.” On the

Hernandez-Plaintiffs’ motion, it held that “viewing the evidence in the light most favorable to

Defendants, a reasonable jury could determine that, based on the totality of the circumstances,

Defendants diligently pursued the traffic-violation investigation.”

At trial, the jury found for the Troopers on the sole remaining claim—that the traffic stop

was unreasonably prolonged. The district court denied the Hernandez-Plaintiffs’ subsequent

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motion for judgment as a matter of law under Federal Rule of Civil Procedure 50. The present

timely appeal followed.

II. ANALYSIS

A. Prolongation of the Car Stop

“We review de novo a district court’s decision to deny a renewed motion for judgment as

a matter of law under Rule 50(b).” EEOC v. New Breed Logistics, 783 F.3d 1057, 1065 (6th Cir.

2015) (citation omitted). For the Hernandez-Plaintiffs to succeed on their challenge, they must

nonetheless “overcome the substantial deference owed a jury verdict.” Radvansky v. City of

Olmsted Falls, 496 F.3d 609, 614 (6th Cir. 2007). Like the district court, this court “may grant

the [Rule 50] motion ‘only if in viewing the evidence in the light most favorable to the non-

moving party, there is no genuine issue of material fact for the jury, and reasonable minds could

come to but one conclusion, in favor of the moving party.’” New Breed Logistics, 783 F.3d at

1065 (quoting Radvansky, 496 F.3d at 614). We begin with the governing law.

In Rodriguez v. United States, the Supreme Court held that officers may not prolong a

traffic stop to have a drug dog sniff a car—a crime detecting action not ordinarily incident to a

traffic stop—absent independent reasonable suspicion to detain the motorist(s). 135 S. Ct. 1609,

1615–16 (2015). The Court determined that the police violated the Fourth Amendment by

detaining Rodriguez for seven or eight minutes after terminating the traffic stop by issuing him a

ticket. Id. at 1613–16 (rejecting the argument that the prolongation of the stop was permissible

because it was de minimis). “Like a Terry stop, the tolerable duration of police inquiries in the

traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that

warranted the stop . . . and attend to related safety concerns.” Id. at 1614 (citation omitted).

“Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably

should have been—completed;” whichever comes first. Id.

The Supreme Court opined that the “ordinary inquiries incident to the traffic stop” that do

not impermissibly extend a stop include “checking the driver’s license [and] determining

whether there are outstanding warrants against the driver.” Id. at 1615 (cleaned up). We have

held that checking passengers for warrants and brief questioning are permissible as part of a

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traffic stop, United States v. Smith, 601 F.3d 530, 542 (6th Cir. 2010), and that summoning a

drug dog to sniff a stopped car is permissible as long as it does not “improperly extend the length

of the stop,” United States v. Bell, 555 F.3d 535, 542 (6th Cir. 2009). But Rodriguez clarifies

that any extension of a traffic stop absent independent reasonable suspicion is improper. 135 S.

Ct. at 1615–16. This is a bright-line rule. Id.

The Hernandez-Plaintiffs maintain that they are entitled to judgment as a matter of law

because, on the undisputed facts, the Troopers unreasonably prolonged the duration of the car

stop. They assert that the traffic stop should have ended when the initial warrant check of

Hernandez and Betancourt came back negative, or at least when the initial warrant check of the

backseat passengers was concluded, and contend that it was unreasonably dilatory to check

everyone a second time in another database.

The Troopers maintain that the warrant checks of the four occupants through two

separate databases and the questioning of them were “ordinary inquiries incident to the traffic

stop” and thus they did not impermissibly extend the stop. The Troopers further contend that

because they were still awaiting the results of the background check from BLOC at the time that

the drug dog first sniffed the car, calling the dog to the scene did not prolong the traffic stop.2

The issue here is whether, at the time of the dog sniff, the stop had been prolonged

beyond the duration of the tasks incident to the initial stop or past the time reasonably required

“to address the traffic violation that warranted the stop.” Rodriguez, 135 S. Ct. at 1614. In other

words, the Hernandez-Plaintiffs need to show either that the second warrant check of the

occupants was not “tied to the traffic infraction” or that the traffic stop “reasonably should have

been” already completed. Id. This is the type of circumstance-specific Fourth Amendment

inquiry that, in the civil context, is generally reserved to the jury, as it was here. See, e.g.,

Gardenhire v. Schubert, 205 F.3d 303, 315–18 (6th Cir. 2000) (holding that whether the police

had probable cause was a question for the jury). For the Hernandez-Plaintiffs to prevail on their

2The Troopers also argued at summary judgment that, even if the traffic stop was unreasonably extended,

they had reasonable suspicion to detain the Hernandez-Plaintiffs based on Hernandez’s demeanor and answers to

Trooper Boles’s questioning. But the Troopers did not make this argument in their response to the Rule 50 motion

or on appeal. It is therefore forfeited.

No. 18-6281 Hernandez, et al. v. Boles, et al. Page 7

Rule 50 motion, they must show that under the facts of this case, running a check of a second

database or waiting 20 minutes to call for a second warrant check unreasonably extended the

traffic stop as a matter of law.

The Hernandez-Plaintiffs argue that the stop was legally improper because the Troopers

“were using a traffic stop as a pretext to fish for evidence of other crime.” It is well established,

however, that police officers may stop a vehicle that commits a traffic violation and look for

evidence of a crime, even if the traffic stop is merely a pretext and they do not have an

independent reasonable suspicion of criminal activity. See Whren v. United States, 517 U.S. 806,

813, 819 (1996); see also United States v. Everett, 601 F.3d 484, 495 n.12 (6th Cir. 2010) (“[I]t

is the objective conduct of the officer which the diligence standard measures; his subjective

intent or hope to uncover unrelated criminal conduct is irrelevant.”). To be sure, the Hernandez-

Plaintiffs were free to argue to the jury that the Troopers impermissibly extended the traffic stop

by checking a second database or waiting 20 minutes to call BLOC because they were trying to

uncover evidence of a crime. But Trooper Boles’s admission that he was interested in ferreting

out crime rather than merely issuing traffic tickets does not alter the Fourth Amendment analysis.

It remains the case that an officer’s subjective intent is generally immaterial; the stop, by

contrast, is unlawful if it is prolonged beyond the duration of tasks incident to the traffic stop or

“beyond the time reasonably required” to address the traffic violation. Rodriguez, 135 S. Ct.

at 1614–15 (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)); see also Bell, 555 F.3d at

541–42 (holding that officers may pursue unrelated matters during a traffic stop, such as calling a

drug dog to the scene to sniff the car, while they are waiting for the results of a warrant check, as

long as they do not impermissibly prolong the stop).

The Hernandez-Plaintiffs argue that the traffic stop was unreasonably prolonged because

the initial warrant check was completed 18 minutes before the drug dog showed up, the NCIC

warrant check of the backseat passengers was completed four minutes beforehand, and

“[c]hecking BLOC was a way to kill time. Even assuming that it had any valid purpose at all,

the Troopers did not do it diligently” because they waited until 20 minutes into the stop to call

BLOC. Certainly, the jury could have found that it was unreasonable to continue to detain the

Hernandez-Plaintiffs after the initial warrant check of Hernandez and Betancourt came back

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negative because that was not necessary to carry out the traffic stop—especially given that no

ticket was being written—or that the Troopers were unreasonably dilatory in waiting 20 minutes

to call BLOC. But the Hernandez-Plaintiffs cite no authority mandating such a determination as

a matter of law. And though the delay caused by checking two different databases is troubling,

the Hernandez-Plaintiffs point to no bright-line rule that officers are limited to checking one

database for warrants during a traffic stop. Whether the traffic mission was (or should have

been) over by the time the dog arrived was a question properly submitted to the jury.

In sum, the jury assessed all the facts and arguments and determined that the Troopers did

not unreasonably prolong the traffic stop. The district court correctly determined that the

question of whether the Troopers impermissibly prolonged the traffic stop was reserved to the

jury. Drawing all reasonable inferences in favor of the Troopers, as we must, we cannot say that

the Hernandez-Plaintiffs have met the high burden of showing that the jury’s verdict was

unreasonable as a matter of law. We therefore affirm the denial of the Hernandez-Plaintiffs’

Rule 50(b) motion for judgment.

B. The Car Search

The Hernandez-Plaintiffs also argue that the district court erred in granting partial

summary judgment to the Troopers on the ground that the car search did not violate clearly

established law. “We review a district court’s grant of summary judgment de novo.” Brown v.

Lewis, 779 F.3d 401, 410 (6th Cir. 2015) (citation omitted). Granting summary judgment “is

appropriate only ‘if the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.’ It is not appropriate if . . . a reasonable

jury could return a verdict for the nonmoving party.” Id. (quoting Fed. R. Civ. P. 56(a)). In

reviewing a grant of summary judgment, this court “must view all evidence, and draw all

reasonable inferences, in the light most favorable to the [non-moving party].” Id.

Qualified immunity “protects government officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Goodwin v. City of Painesville, 781 F.3d 314,

320–21 (6th Cir. 2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). At summary

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judgment, qualified immunity must be denied and the case sent to the jury if the court finds that

“there are genuine issues of material fact as to whether [the Officers] violated [the plaintiff’s]

Fourth Amendment rights in an objectively unreasonable way and . . . those rights were clearly

established at the time of [the plaintiff’s] arrest such that a reasonable officer would have known

that his conduct violated them.” Id. at 321 (alterations in original) (quoting St. John v. Hickey,

411 F.3d 762, 768 (6th Cir. 2005)). Though courts may answer these two questions “in either

order,” id., we address first whether a constitutional violation occurred and then whether there

was a violation of the Hernandez-Plaintiffs’ clearly established rights.

1. Constitutional Violation

At issue is whether the Troopers violated the Fourth Amendment by manually searching

the Yukon even though the drug dog did not alert to the car’s interior. It is blackletter law that

the police can lawfully search a car without a warrant if they have probable cause. See, e.g.,

United States v. Ross, 456 U.S. 798, 809 & n.11 (1982) (collecting cases). The Troopers

articulate only one basis for probable cause to search the car: the drug dog’s alert to the exterior.

And the Hernandez-Plaintiffs do not dispute that the Troopers had probable cause to have the

dog climb into and sniff the interior of the car following its initial alert. So, the question is

whether the Troopers still had probable cause to conduct a manual search after the dog failed to

alert to the interior of the car.

The Hernandez-Plaintiffs argue that the Troopers did not have probable cause for this

search because, “under the specific circumstances, the dog alert was unreliable.” They rely on

Florida v. Harris, 568 U.S. 237 (2013), for the proposition that “officers must look at the

specific circumstances before concluding that an alert has produced probable cause.” The

Troopers respond that, even if there was a constitutional violation, they are entitled to qualified

immunity because the Hernandez-Plaintiffs cannot “point to any legal authority clearly

establishing that a drug dog’s alert to the outside but not the inside of a vehicle would not

provide probable cause to search the vehicle.”

The Hernandez-Plaintiffs’ reliance on Harris does not resolve the legal issue. Harris

stands for the proposition that a dog’s alert only provides probable cause if, in “controlled

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settings,” the “dog performs reliably in detecting drugs.” See 568 U.S. at 248. The Harris Court

did leave open the possibility that even if “a dog is generally reliable, circumstances surrounding

a particular alert may undermine the case for probable cause—if, say, the officer cued the dog

(consciously or not), or if the team was working under unfamiliar conditions.” Id. at 247. But

that does not cover the situation here—where a dog first alerts to the exterior and then fails to

alert to the interior of a car. The unrebutted evidence in the record showed that the drug dog was

generally reliable: The dog’s handler testified at his deposition that “she didn’t do any false

alerts since the time I got her till the time I retired.” And there is nothing in the record to suggest

that the circumstances of the dog’s alert undermine the dog’s reliability in the sense meant by

Harris.

The issue is governed by our precedent addressing the circumstances under which

probable cause dissipates. We held almost thirty years ago that the information acquired from a

fruitless search can dissipate probable cause and render a subsequent search illegal. See United

States v. Bowling, 900 F.2d 926, 932 (6th Cir. 1990). In Bowling, officers searched a trailer

home pursuant to a search warrant a few hours after officers had conducted a consent search of

the premises and found nothing. Id. at 930–31. We “agree[d] with [the] proposition” that

“where an initial fruitless consent search dissipates the probable cause that justified a warrant,

new indicia of probable cause must exist to repeat a search of the same premises.” Id. at 932.

Nonetheless, we declined to suppress the evidence found during the second search because,

though the consent search “was detailed at points, it was not overall as intricate as the search

under the warrant.” Id. at 934. In fact, incriminating evidence was found in a car behind the

trailer, which was not even searched during the consent search. Id. Thus, Bowling concluded,

“the consent search here was not so broad as to dissipate probable cause.” Id.

Other circuits to treat the issue agree that the acquisition of new information can dissipate

the probable cause for a search. See United States v. Dalton, 918 F.3d 1117, 1128–29 (10th Cir.

2019) (“Like the Sixth Circuit in Bowling, we are persuaded that probable cause becomes stale

when new information received by the police nullifies information critical to the earlier probable

cause determination . . . .”); United States v. Ortiz-Hernandez, 427 F.3d 567, 574–75 (9th Cir.

2005) (holding that any probable cause to arrest the defendant was dissipated after a strip search

No. 18-6281 Hernandez, et al. v. Boles, et al. Page 11

revealed that he did not have drugs); Bigford v. Taylor, 834 F.2d 1213, 1218–19 (5th Cir. 1988)

(holding that the police “may not disregard facts tending to dissipate probable cause”).

We have also held that the failure of a drug-sniffing dog to alert to a car dispels

suspicion. See United States v. Davis, 430 F.3d 345, 356 (6th Cir. 2005) (holding that officers

no longer had reasonable suspicion to detain a motorist on suspicion of drug possession and call

a second drug-sniffing dog to the scene after the first drug-sniffing dog did not alert). Indeed,

Davis stated that “[o]nce the drug-sniffing dog was brought to the scene and failed to alert

positively . . . , the officers’ suspicions that Davis was in possession of narcotics were dispelled.”

Id.

Based on Bowling and Davis, a reasonable jury could find in the Hernandez-Plaintiffs’

favor. Bowling stands for the proposition that a fruitless search negates probable cause, if it is

sufficiently thorough, and Davis stands for the proposition that a drug dog’s failure to alert

dispels suspicion. Viewing the evidence in the light most favorable to the Hernandez-Plaintiffs

and drawing all reasonable inferences in their favor, a jury could determine that the dog’s

fruitless sniffing of the car interior was sufficiently thorough to dissipate the probable cause to

search provided by its initial alert. The dog’s handler opened all four of the SUV’s doors and the

rear compartment, allowing the dog to sniff the whole interior, and the dog spent several minutes

inside the car. After the dog failed to alert, moreover, the dog’s handler shook the occupants’

hands, gave them a thumbs up, and apologized to Trooper Clark for the dog’s failure to alert.

These actions suggest that the handler felt the dog had cleared the Hernandez-Plaintiffs. Then,

when telling Boles what information to relay to their supervisor, Clark said that “the canine

didn’t hit.” A reasonable jury could conclude that the dog’s failure to alert inside the car

dispelled the probable cause provided by its initial alert to the exterior, and the Troopers could

therefore no longer lawfully search the car.

The Hernandez-Plaintiffs argue that the district court should have awarded them

summary judgment. In this particular situation, however, a dispute of material fact remained for

the jury to resolve. In his deposition, the dog’s handler said that, although the drug dog had

“been in parts of all of [the car],” the dog “had not searched it all” because “she got playing with

that food bag.” He testified that he had cut the search short because he was “embarrassed” that

No. 18-6281 Hernandez, et al. v. Boles, et al. Page 12

the Hernandez-Plaintiffs were “laughing at [the] dog” for focusing her attention on the food.

Viewing the evidence in the light most favorable to the Troopers, a reasonable jury could have

concluded that, because the first search of the car by the dog was not sufficiently thorough, it did

not dissipate the probable cause justifying a second, manual car search. See Bowling, 900 F.2d at

934 (holding that “the consent search . . . was not so broad as to dissipate probable cause”). We

therefore turn to whether the law was clearly established.

2. Clearly Established Right

This brings us to the clearly-established prong of the qualified immunity inquiry. “In

inquiring whether a constitutional right is clearly established, we must ‘look first to decisions of

the Supreme Court, then to decisions of this court and other courts within our circuit, and finally

to decisions of other circuits.’” Brown v. Battle Creek Police Dep’t, 844 F.3d 556, 566–67 (6th

Cir. 2016) (quoting Walton v. City of Southfield, 995 F.2d 1331, 1336 (6th Cir. 1993)). At the

time of the manual car search, it was clearly established that (a) probable cause to search an area

is dissipated when a sufficiently thorough prior search has been fruitless and (b) the failure of a

drug-sniffing dog to alert dispels suspicion. See Davis, 430 F.3d at 356; Bowling, 900 F.2d at

932–34.

But, to overcome qualified immunity, the clearly established law must be specific enough

“to put a reasonable officer on notice that the conduct at issue was unconstitutional.” Lewis, 779

F.3d at 417. “[T]here need not be a case with the exact same fact pattern or even ‘fundamentally

similar’ or ‘materially similar’ facts; rather, the question is whether the defendants had ‘fair

warning’ that their actions were unconstitutional.” Goodwin, 781 F.3d at 325 (quoting

Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir. 2005) (alteration in original)).

Nevertheless, the relevant principles should be defined at a “high ‘degree of specificity,’”

especially in the Fourth Amendment context. District of Columbia v. Wesby, 138 S. Ct. 577, 590

(2018) (quoting Mullenix v. Luna, 136 S. Ct. 305, 309 (2015) (per curiam)). Because probable

cause “cannot be ‘reduced to a neat set of legal rules’” and is “‘incapable of precise definition or

quantification,’” police “‘officers will often find it difficult to know how the general standard of

probable cause applies in the precise situation encountered.’” Id. (quoting Illinois v. Gates,

462 U.S. 213, 232 (1983); Maryland v. Pringle, 540 U.S. 366, 371 (2003); Ziglar v. Abbasi,

No. 18-6281 Hernandez, et al. v. Boles, et al. Page 13

137 S. Ct. 1843, 1866 (2017). Thus, in the Fourth Amendment context, “[w]hile there does not

have to be ‘a case directly on point,’ existing precedent must place the lawfulness of the

particular [search] ‘beyond debate.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011)).

Here, neither Bowling nor Davis is specific enough to clearly establish that the manual

car search was illegal. Bowling establishes that a fruitless search can dissipate probable cause

and Davis establishes that the failure of a drug-sniffing dog to alert at all dispels suspicion. But

neither governs the unusual circumstances of this case, where the same drug-sniffing dog first

alerted and then failed to alert to a car during a subsequent search. At the time of these events, a

reasonable officer would not have been on notice that the drug dog’s failure to alert again to the

interior of the car was the kind of new information that dissipated the probable cause provided by

its initial alert to the car exterior. This case provides such notice for future searches.

Accordingly, we affirm the district court’s grant of qualified immunity to the Troopers.

C. Recoverable Damages for an Illegal Search or Seizure

This brings us to one more issue addressed by the parties—whether damages are

recoverable for pre-trial incarceration stemming from an illegal search or seizure, a question of

first impression in this circuit. Because there is no basis for liability in this case, this issue is

pretermitted.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denial of the Hernandez-

Plaintiffs’ Rule 50(b) motion and the district court’s grant of partial summary judgment to the

Troopers on the car-stop claim.