Jermaine Sutton v. Metropolitan Government of Nashville

RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 12a0391p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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JERMAINE SUTTON,

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Plaintiff-Appellee,

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No. 11-6449

v.

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METROPOLITAN GOVERNMENT OF NASHVILLE -

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Defendants, --

AND DAVIDSON COUNTY, et al.

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RICHARD MARTIN, in his individual and

Defendant-Appellant. -

official capacities as a Metro Police Officer,

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Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 3:10-cv-400—Kevin H. Sharp, District Judge.

Decided and Filed: November 28, 2012

Before: GILMAN, GIBBONS, and ROGERS, Circuit Judges.

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COUNSEL

ON BRIEF: Keli J. Oliver, Derrick C. Smith, DEPARTMENT OF LAW OF THE

METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY,

Nashville, Tennessee, for Appellant. Andrew N. Egan, Hermitage, Tennessee, Mary

Leech, Nashville, Tennessee, for Appellee.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Jermaine Sutton was detained and

arrested on a misdemeanor theft charge after Officer Richard Martin was called to a

Kroger grocery store following an alleged shoplifting. Officer Martin took possession

of a cell phone allegedly dropped by the perpetrator. Based on a conversation with a

1

No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 2

person listed in the phone’s “contacts” list, he went to Summit Medical Center where

Sutton worked. The confrontation between the two resulted in Sutton’s arrest for

shoplifting.

A jury acquitted Sutton at trial. Sutton subsequently sued Officer Martin and the

Nashville and Davidson County Metropolitan Government for a host of federal

constitutional violations and state common law and statutory violations. Officer Martin

filed a motion to dismiss the complaint for failure to state a claim. The district court

dismissed Sutton’s claims based on the Fifth and Fourteenth Amendments but denied the

motion as to Sutton’s Fourth Amendment claim regarding an unreasonable seizure,

finding that he had adequately stated a cause of action and that Officer Martin was not

entitled to qualified immunity. Officer Martin has timely filed an interlocutory appeal.

This case turns on whether Officer Martin had reasonable suspicion to detain

Sutton or probable cause to arrest him. For the reasons set forth below, we AFFIRM

the district court’s order denying Officer Martin’s motion to dismiss, but we do so by

considerably narrowing the scope of Sutton’s Fourth Amendment claim.

I. BACKGROUND

A. Factual background

All of the following facts are based solely on the allegations in Sutton’s

complaint. No discovery has yet taken place and no affidavits or other documents have

been filed.

On April 21, 2009, Officer Martin responded to a reported shoplifting at a Kroger

grocery store. He ended up in possession of a cell phone that was found in the pocket

of a jacket dropped by the alleged perpetrator. Officer Martin then called a number

saved in the cell phone’s contacts list. The person who answered the call told him that

she knew a person named Jermaine Sutton who worked at “Summit Hospital.” What

else she may have told Officer Martin to connect Sutton to the shoplifting incident is not

set forth in the complaint. In any event, Officer Martin left the Kroger store and went

to Summit Medical Center to find Sutton.

No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 3

Sutton was working in the kitchen at Summit Medical Center when he was told

by a co-worker that someone was in the cafeteria wanting to see him. He went to the

cafeteria, where he was quickly surrounded by Officer Martin and three other police

officers. Officer Martin pulled out a cell phone from a bag and asked Sutton if it was his

phone. Sutton said that it was not. When Officer Martin then asked Sutton where his

cell phone was, Sutton showed Officer Martin a different cell phone taken from Sutton’s

own pocket, which Officer Martin promptly confiscated over Sutton’s protest. This

prompted Officer Martin to say that Sutton “looked like the kind of man who would have

a couple nurses on the side and . . . would need two cell phones to talk to them so that

[Sutton’s] wife would not find out about them.”

After Officer Martin confiscated the cell phone that Sutton had produced from

his pocket, Sutton told Officer Martin that he needed the phone to call his wife, and he

asked if he could “clock out” from his job. Officer Martin responded that Sutton “could

not go anywhere or do anything.” He then explained that someone had stolen meat from

a Kroger store, that the police had “found the telephone in [Sutton’s] jacket after [he]

took off running,” and that if Sutton told the truth, Officer Martin could “just write

[Sutton] a citation.” Sutton denied stealing anything.

Despite Sutton’s denial of having any connection to the cell phone or to the

alleged shoplifting, Officer Martin took Sutton tightly by the arm and, along with the

other officers, escorted him out of the hospital. A Kroger security guard from the

grocery store in question, John Szcerbiak, who was waiting nearby in his car, identified

Sutton as the perpetrator. Officer Martin then told Sutton that he was under arrest,

handcuffed him, gave him the Miranda warnings, put him in the back seat of a police

car, and drove to the scene of the theft. Sutton remained in the car for 45 minutes while

Officer Martin went inside the Kroger store to view a security video of the shoplifting.

Officer Martin returned to the car, said that he was unsure whether Sutton was the person

depicted in the video, and went back to look at the video again. Despite his own

uncertainty, Officer Martin took Sutton “downtown” at Szcerbiak’s urging, where the

No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 4

latter swore out a warrant charging Sutton with misdemeanor theft. Sutton was held in

jail for several hours until his wife posted bond.

B. Procedural background

After Sutton was tried and acquitted in June 2009, he pursued federal and state

claims against Officer Martin, the Metropolitan Government, Szcerbiak, and Kroger.

The district court sustained Officer Martin’s motion to dismiss most of the claims but

denied the motion as to Sutton’s claim of an unreasonable seizure under the Fourth

Amendment.

Officer Martin argued that reasonable suspicion supported his initial detention

of Sutton at the hospital and that Szcerbiak’s identification of Sutton provided probable

cause for the latter’s subsequent arrest. He thus contended that Sutton failed to state a

claim under the standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007). And even if Sutton had stated a claim, Officer Martin argued that he is entitled

to qualified immunity.

The district court rejected both arguments. Because the first step in a qualified-

immunity analysis is to determine whether the officer’s alleged conduct violated a

constitutional right, the court analyzed Officer Martin’s Twombly argument within the

qualified-immunity framework. It found that the facts did not support Officer Martin’s

position that he had reasonable suspicion to detain Sutton because the informant (the

person in the perpetrator’s cell-phone contacts list) was not necessarily “reliable both in

[her] assertion of illegality and in [her] tendency to identify a determinate person.” The

court also noted that it could not tell from the record “whether the degree of intrusion

was warranted” or how long the hospital encounter lasted.

A similar “lack of facts” defeated Officer Martin’s argument on probable cause.

The court held that Szcerbiak’s identification “[did] not necessarily establish probable

cause” because the court could not yet determine whether there might have been an

apparent reason for Officer Martin to disbelieve Szcerbiak.

No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 5

Having found that Sutton adequately stated a Fourth Amendment claim, the

district court turned to the second step of the qualified-immunity analysis and concluded

that detaining a person for an investigatory stop without reasonable suspicion and

arresting a person without probable cause violated clearly established Fourth

Amendment law. The court therefore denied Officer Martin’s motion on the Fourth

Amendment claim. This interlocutory appeal followed.

II. ANALYSIS

A. Standard of review

A district court’s denial of a motion to dismiss that raises a qualified-immunity

defense is reviewed de novo. Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 677 (6th

Cir. 2001). But the rejection of a qualified-immunity claim is reviewable on

interlocutory appeal only to the extent that it raises a question of law and does not

concern a factual dispute. Floyd v. City of Detroit, 518 F.3d 398, 404 (6th Cir. 2008);

see also Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (holding that a district court’s

denial of qualified immunity is a “final decision” under 28 U.S.C. § 1291 “to the extent

that it turns on an issue of law”). We will therefore limit our review to the purely legal

question of whether the facts as alleged by Sutton would allow a jury to find a violation

of a clearly established constitutional right. See Sample v. Bailey, 409 F.3d 689, 695-96

(6th Cir. 2005).

To survive a motion to dismiss for failure to state a claim, a complaint must

allege sufficient facts that, accepted as true, “state a claim to relief that is plausible on

its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). The plaintiff at this stage of the case is entitled to have the complaint construed

in the light most favorable to him. Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir.

2008).

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When a government official is sued in a § 1983 action, the official may raise the

defense of qualified immunity. Once raised, the burden is on the plaintiff to demonstrate

that the qualified-immunity defense is unwarranted. Roth v. Guzman, 650 F.3d 603, 609

(6th Cir. 2011). The facts as alleged must show that the defendant violated a

constitutional right and that the right was clearly established, Saucier v. Katz, 533 U.S.

194, 201 (2001), but the analysis need not proceed in that order. Pearson v. Callahan,

555 U.S. 223, 236 (2009) (allowing courts the discretion to decide which of the two

steps in the qualified-immunity analysis should be addressed first). A right is clearly

established when “it would be clear to a reasonable officer that his conduct was unlawful

in the situation he confronted.” Saucier, 533 U.S. at 202.

B. Sutton has stated a § 1983 claim for violation of his Fourth Amendment

rights

The Fourth Amendment guarantees that “government officials may not subject

citizens to searches or seizures without proper authorization.” Brooks v. Rothe, 577 F.3d

701, 706 (6th Cir. 2009). A police officer having probable cause to believe that a

criminal offense has been committed may make a warrantless arrest without offending

the Fourth Amendment. Id. (citing Devenpeck v. Alford, 543 U.S. 146, 152 (2004)). On

the other hand, a short investigatory detention, rather than an arrest, requires only

“reasonable suspicion of criminal activity.” United States v. Lopez-Medina, 461 F.3d

724, 739 (6th Cir. 2006) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). We will first

address Sutton’s argument that he was detained without reasonable suspicion and then

turn to the claim that he was arrested without probable cause.

1. The lack of reasonable suspicion to detain Sutton beyond the

cell-phone inquiry

Officer Martin acknowledges that his initial encounter with Sutton at Summit

Medical Center was an investigatory detention. To justify this detention, Officer Martin

“must be able to point to specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant [the] intrusion.” See Terry, 392

U.S. at 21. The complaint alleges that Officer Martin knew the following facts at the

No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 7

time he initiated the detention: (1) a theft was reported at a Kroger grocery store, (2) an

abandoned cell phone was found at the store, (3) Officer Martin called a number in the

cell phone’s contacts list, and (4) the person Officer Martin called said that she knew a

person named Jermaine Sutton who worked at Summit Hospital, but did not say that the

cell phone belonged to Sutton.

Sutton argues, consistent with the district court’s opinion, that the information

provided by the person Officer Martin called on the cell phone was insufficient to

provide reasonable suspicion for detaining Sutton because the information was not

reliable. Both he and the district court cite Florida v. J.L., 529 U.S. 266 (2000), for the

proposition that the “tip” Officer Martin received was not “reliable in its assertion of

illegality.” The informant made no connection between Sutton and the theft, Sutton

argues, and provided no predictive information by which Officer Martin could assess her

knowledge or credibility. Sutton concludes that because the informant’s tip was

unreliable, Officer Martin lacked reasonable suspicion to detain Sutton for questioning.

The reliance by Sutton and the district court on J.L. is misplaced. Unlike J.L.,

the present case does not involve an anonymous informant contacting the police to

report illegal activity. See J.L., 529 U.S. at 268 (“[A]n anonymous caller reported to the

Miami-Dade Police that a young black male standing at a particular bus stop and

wearing a plaid shirt was carrying a gun.”). The Supreme Court noted in J.L. that, for

the anonymous-informant situation it was reviewing, reasonable suspicion “requires that

a tip be reliable in its assertion of illegality.” Id. at 272.

In the present case, Officer Martin called a number saved in the cell phone solely

to ascertain who left the cell phone at the Kroger store. He did not call that person for

information about the actual theft. Unlike the knowledge possessed by the informant in

J.L., the person that Officer Martin called did not need to know anything about the

shoplifting in order to provide Officer Martin with reasonable suspicion because the cell

phone was already tied to the shoplifting. That the person Officer Martin called did not

witness the shoplifting is thus irrelevant.

No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 8

Sutton also argues that because the person Officer Martin called did not state that

the cell phone belonged to him, she provided Officer Martin no connection whatsoever

between Sutton and the theft. This argument contains both a factual allegation from the

complaint and an inference drawn from that allegation. The complaint alleges that “the

person from the contacts list . . . never stated the found phone was Jermaine Sutton’s

phone.” Because we are reviewing the denial of Officer Martin’s motion to dismiss, we

must accept this allegation as true. See, e.g., Michigan Bell Tel. Co. v. Climax Tel. Co.,

202 F.3d 862, 865 (6th Cir. 2000) (accepting factual allegations in the complaint as true

on review of a denial of a motion to dismiss). But the second part of Sutton’s

argument—that the person Officer Martin called provided no connection whatsoever

between Sutton and the theft—is not alleged in the complaint. Rather, it is an inference

that Sutton draws from the fact that “the person from the contacts list” did not state that

the phone found at the Kroger store belonged to Sutton.

Sutton’s proposed inference implicates three key facts from the complaint:

(1) the person called by Officer Martin gave Sutton’s name and place of work to Officer

Martin, (2) she did not say that the cell phone belonged to Sutton, and (3) Officer Martin

then went to Summit Medical Center to question Sutton about the cell phone. Two

opposing inferences can be drawn from these facts: (1) the inference that the person

called by Officer Martin provided no connection whatsoever between Sutton and the cell

phone, or (2) the inference that the person called by Officer Martin gave him further

information that connected Sutton to the cell phone (without saying that Sutton owned

it), thus motivating Officer Martin to find and question Sutton on that topic. If the first

inference is warranted by the alleged facts, then our obligation to “construe the

complaint in the light most favorable to [Sutton]” requires us to accept his inference.

See Bennet v. MIS Corp., 607 F.3d 1076, 1091 (6th Cir. 2010) (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). But if the alleged facts do not warrant Sutton’s

inference, then we need not accept it as true. See, e.g., id. (“We need not, however,

accept unwarranted factual inferences.”).

No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 9

Sutton’s inference is unwarranted because it makes no logical sense. Neither the

complaint nor Sutton’s brief suggest why, other than by reason of a connection to the

cell phone, the person contacted by Officer Martin would have given Sutton’s name to

Officer Martin. Nor do these documents suggest why, absent such a connection, Officer

Martin would seek out Sutton to ask whether the cell phone belonged to him. Thus, the

only reasonable inference that we can draw is that the person contacted by Officer

Martin made some connection between the cell phone and Sutton that is not set forth in

the complaint, providing Officer Martin with reasonable suspicion to further investigate

that connection. Sutton has therefore failed to sustain his burden of stating a claim that

Officer Martin violated his Fourth Amendment rights during the initial contact and

questioning.

Assuming that Officer Martin had a proper basis for the initial investigatory

detention, we must next determine “whether the degree of intrusion was reasonably

related in scope to the situation at hand, which is judged by examining the

reasonableness of [Officer Martin’s] conduct given [his] suspicions and the surrounding

circumstances.” United States v. Beauchamp, 659 F.3d 560, 569 (6th Cir. 2011) (ellipsis

and internal quotation marks omitted). “The scope of activities permitted during an

investigative stop is determined by the circumstances that initially justified the stop.”

United States v. Obasa, 15 F.3d 603, 607 (6th Cir. 1994). “When police actions go

beyond checking out the suspicious circumstances that led to the original stop, the

detention becomes an arrest that must be supported by probable cause.” Id. An officer

can ask a moderate number of questions to ascertain the detainee’s identity and to

confirm or dispel that officer’s initial suspicions, but “unless the detainee’s answers

provide the officer with probable cause to arrest him, he must then be released.” Id.

(internal quotation marks omitted).

The permissible scope of Officer Martin’s initial detention of Sutton was to

ascertain his identity and to ask limited questions regarding the cell phone found at the

Kroger store. These are “the circumstances that initially justified the stop.” See id.

Officer Martin did just that—he pulled out the cell phone found at the Kroger store and

No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 10

asked Sutton if it belonged to him. Sutton denied ownership of that cell phone and,

when asked, produced one from his own pocket. At this point, a reasonable person in

Sutton’s position would not have felt under arrest because he had been questioned only

briefly and remained at the scene of the initial detention. See, e.g., United States v.

Richardson, 949 F.2d 851, 857 (6th Cir. 1991) (“The test is an objective one: would a

reasonable person in the defendant’s position have felt that he was under arrest or was

otherwise deprived of his freedom of action in any significant way.”) (internal quotation

marks omitted). Because the restraint on Sutton’s freedom at that point was quite

limited, the Terry stop had not converted into an arrest. See id. Had Sutton’s detention

ended here, his Fourth Amendment rights would not have been violated. But it did not

so end.

Instead, Officer Martin discounted the exculpatory information that Sutton

provided by wildly speculating that Sutton “looked like the kind of man who would have

a couple of nurses on the side and . . . would need two cell phones . . . so that [his] wife

would not find out about them.” An officer, however, cannot use pure speculation to

“turn a blind eye toward potentially exculpatory evidence” when assessing cause for the

continued detention of a suspect. Skovgard v. Pedro, 448 F. App’x 538, 544 (6th Cir.

2011) (internal quotation marks omitted). Having received an answer to his cell-phone

inquiry that did not produce more suspicion and knowing no other facts that could justify

the investigatory detention, Officer Martin lacked a reasonable basis for detaining Sutton

any further. The facts as alleged thus allow us to draw the reasonable inference that

Officer Martin was at that point detaining Sutton without reasonable suspicion, in

violation of the latter’s Fourth Amendment rights. See Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (defining “facial plausibility” as “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged”).

No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 11

2. Sutton’s continued detention amounted to an arrest before the

eyewitness identification

Officer Martin also argues that he had probable cause to arrest Sutton based on

the eyewitness identification provided by Szcerbiak, the Kroger security guard. An

eyewitness identification is generally sufficient to establish probable cause for an arrest,

unless “there is an apparent reason for the officer to believe that the eyewitness was

lying” or was otherwise mistaken. United States v. Lanier, 636 F.3d 228, 233 (6th Cir.

2011) (internal quotation marks omitted). The district court wrongly discounted

Szcerbiak’s identification by reasoning that the court was “not in a position to determine

whether there was some ‘apparent reason’ for Officer Martin to disbelieve Mr.

Szcerbiak.” But this reasoning fails to take into account that Sutton has the burden of

alleging facts that, accepted as true, state a plausible claim for relief. See Twombly,

550 U.S. at 570. The complaint does not allege that Officer Martin had reason to doubt

Szcerbiak’s identification of Sutton.

Even though Officer Martin later viewed the Kroger surveillance video and was

unsure whether Sutton was the person depicted therein, he had no reason at the time of

Szcerbiak’s identification of Sutton at Summit Medical Center to doubt its accuracy.

And even if Officer Martin had viewed the surveillance video earlier, his uncertainty

about whom the video depicted would not have obligated him to override Szcerbiack’s

positive identification. Szcerbiack, after all, was the one who swore out the warrant

charging Sutton with the theft, not Officer Martin. In sum, Sutton’s arrest following

Szcerbiak’s identification does not state a Fourth Amendment claim.

But this error by the district court does not warrant a reversal because Sutton’s

detention amounted to an arrest prior to Szcerbiak’s identification. The detention went

beyond questioning Sutton about the cell phone and had several characteristics of a

“show of official authority” that the Supreme Court has found tantamount to an arrest.

See Florida v. Royer, 460 U.S. 491, 501-04 (1983) (plurality opinion) (describing

circumstances showing that the defendant was seized beyond a Terry stop). In Royer,

the Court concluded that the defendant was under arrest when the officers confronting

No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 12

him identified themselves as narcotics agents, told him that they suspected him of

transporting narcotics, and asked him to accompany them to a separate room in the

airport without indicating that he was free to leave. Id. at 501. The officers had also

seized the defendant’s luggage. Id. at 503. Similarly, Sutton was surrounded by four

officers, told that he was a suspect, had his property confiscated, and then was grasped

by the arm and escorted away from his place of work. Not only did Officer Martin not

“indicat[e] in any way that [Sutton] was free to depart,” see id. at 501, but he

affirmatively stated that Sutton “could not go anywhere or do anything.”

To be sure, the officers did not place Sutton in a police vehicle or read him the

Miranda warnings before Szcerbiak identified him, but these factors are not necessary

to a determination that a detainee was arrested. See Lopez-Medina, 461 F.3d at 740

(noting that reading Miranda rights is not dispositive). This court in Lopez-Medina

highlighted removals to police stations or vehicles as particular situations that can

transform a Terry stop into a full-fledged arrest, but did not hold that they were the only

examples of detainee transfers that can, along with other factors, amount to an arrest.

“[T]he removal of a suspect from the scene of the stop generally marks the point

at which the Fourth Amendment demands probable cause.” Centanni v. Eight Unknown

Officers, 15 F.3d 587, 591 (6th Cir. 1994). This is not to say, however, that any

movement of a suspect is tantamount to an arrest. See United States v. Johnson, 246 F.

App’x 982, 989 (6th Cir. 2007) (Cole, J., concurring) (“The Supreme Court has

recognized that, in some circumstances, police may transport a suspect a short distance

in aid of a Terry stop.”). In Johnson, police officers transported a suspect to a nearby

scene of a hit-and-run accident after finding the suspect walking in the vicinity of a

damaged, abandoned vehicle and displaying signs of intoxication and disorientation.

The suspect, Johnson, had head lacerations that were consistent with the police officers’

observations that the vehicle’s windshield had been struck by its driver’s head. In

holding that “[t]he specific, articulable facts indicated that Johnson had committed at

least one” of a number of crimes related to the accident, the court concluded that moving

him two-tenths of a mile back to the accident scene to further investigate whether he was

No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 13

involved in the hit-and-run accident was justified under Terry. Id. at 986; see also id.

at 990 (Cole, J., concurring) (further explaining the court’s rationale).

The Terry stop in Johnson allowed for a brief transport of the suspect without

escalating into an arrest because the police officers had a number of facts to sustain their

reasonable suspicion. A broader factual base of suspicion permits a broader scope of

detention because, as noted above, “[t]he scope of activities permitted during an

investigative stop is determined by the circumstances that initially justified the stop.”

United States v. Obasa, 15 F.3d 603, 607 (6th Cir. 1994). No bright-line rule defines the

length or scope of a Terry stop or when such a stop becomes an arrest. Houston v. Clark

Cnty. Sheriff Deputy John Does 1–5, 174 F.3d 809, 823 (6th Cir. 1999) (citing United

States v. Sharpe, 470 U.S. 675, 685-86 (1985)). The fact that a suspect may be

transported in one Terry stop, in other words, does not mean that police officers can

forcibly move suspects in all Terry stops.

Unlike the officers in Johnson, Officer Martin’s sole basis for suspecting that

Sutton was the shoplifting perpetrator was an alleged connection to the cell phone found

at the Kroger grocery store, and this basis was neutralized when Sutton produced a cell

phone from his own pocket. Given the other Royer-like indicia of arrest discussed

above, Sutton’s forcible removal from the hospital exceeded the bounds of a Terry stop

and was thus an arrest requiring probable cause. Officer Martin does not contend that

he had probable cause to arrest Sutton absent Szcerbiak’s identification. Sutton has

therefore adequately pleaded that he was arrested without probable cause when he was

removed from the hospital.

C. Officer Martin is not entitled to qualified immunity

To defeat Officer Martin’s claim of qualified immunity, Sutton must show not

only that Officer Martin violated one of Sutton’s constitutional rights, but that the right

was clearly established. See Saucier v. Katz, 533 U.S. 194, 201 (2001). For the reasons

set forth in Part II.B. above, Sutton has stated a Fourth Amendment claim, thus

satisfying the first step in the qualified-immunity analysis. The next step is to determine

No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 14

whether the Fourth Amendment right violated was clearly established at the time of

Officer Martin’s alleged misconduct.

A right is “clearly established” when “the contours of the right [are] sufficiently

clear that a reasonable official would understand that what he is doing violates that

right.” Roth v. Guzman, 650 F.3d 603, 609 (6th Cir. 2011) (internal quotation marks

omitted). The source of law that clearly establishes such a right is “precedent from the

Supreme Court, the Sixth Circuit, the district court itself, or other circuits that is directly

on point.” Holzemer v. City of Memphis, 621 F.3d 512, 527 (6th Cir. 2010) (internal

quotation marks omitted). A court need not have previously held illegal the conduct in

the precise situation at issue because “officials can still be on notice that their conduct

violates established law even in novel factual circumstances.” Sample v. Bailey,

409 F.3d 689, 699 (6th Cir. 2005) (internal quotation marks omitted).

The district court summarily concluded that the law clearly established that an

arrest without probable cause and a Terry stop without reasonable suspicion violate the

Fourth Amendment. But the court’s bare-bones analysis is far too general, failing to

recognize that the right violated must be clear in a particularized context so that a

reasonable official would be on notice that his actions were unconstitutional. See

Saucier, 533 U.S. at 202. Still, taking the facts alleged in the complaint as true, Sutton’s

constitutional rights were clearly established in this context and the court properly

concluded that the qualified-immunity defense fails at this juncture.

Officer Martin argues that no clearly established law “would have put [him] on

notice that questioning a person who had been identified in some connection to a

telephone dropped at the scene of a crime would amount to an unlawful ‘Terry stop.’”

This argument, however, misunderstands the nature of the constitutional violation as

alleged by Sutton. Officer Martin’s initial detention of Sutton for questioning was

permissible because the only reasonable inference that the complaint supports is that the

information from the person contacted on the cell phone provided an adequate basis for

suspecting that Sutton was connected to the theft. But Officer Martin’s continued

detention of Sutton became unreasonable after Officer Martin asked about the cell phone

No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 15

and saw that Sutton had his own. Sutton’s production of his own cell phone, in other

words, neutralized whatever reasonable suspicion that had previously existed.

At the time of Officer Martin’s encounter with Sutton, Supreme Court precedent

was clear that “Terry detentions must be ‘limited in both scope and duration.’” United

States v. Everett, 601 F.3d 484, 488 (6th Cir. 2010) (brackets omitted) (quoting Royer,

460 U.S. at 500). The law was clearly established in “unequivocal” terms that

reasonable suspicion justifies only a “temporary seizure for the purpose of questioning

limited to the purpose of the stop.” Royer, 460 U.S. at 498 (citing United States v.

Brignoni-Ponce, 422 U.S. 873, 881-82 (1975)); but cf. Muehler v. Mena, 544 U.S. 93,

101 (2005) (questioning a detainee about her immigration status, unrelated to the

purpose of the detention, was permissible when the questioning did not prolong the

detention); Everett, 601 F.3d at 490 (explaining that the off-topic questioning in Mena

did not violate the Fourth Amendment because it did not prolong the detention).

Officer Martin’s only basis for detaining Sutton was his possible connection to

the cell phone found at the Kroger store. Although the Kroger store had a security video

of the shoplifting, Officer Martin had not viewed it before detaining Sutton, which

precludes the video from being a supplemental source for reasonable suspicion or

probable cause. Officer Martin’s continuing detention of Sutton thus violated the law

clearly established in Terry, Brignoni-Ponce, Royer, and Obasa, among other cases.

Likewise, the law was clearly established that the circumstances of Sutton’s

continued detention amounted to an arrest. The circumstances here track those present

in Royer: law-enforcement officers confronted Royer, identified themselves, told him

that he was suspected of a crime, asked him to accompany them to a separate room

without indicating that he was free to leave, and seized his property. 460 U.S. at 494.

Sixth Circuit precedent has highlighted the Royer factors in describing seizures that are

tantamount to a formal arrest. See, e.g., United States v. Williams, 615 F.3d 657, 664

(6th Cir. 2010) (“[T]he Supreme Court [in Royer] cited a criminal accusation by law

enforcement as a factor indicating that an individual was seized.”); United States v.

Richardson, 949 F.2d 851, 857 (6th Cir. 1991) (listing the Royer factors).

No. 11-6449 Sutton v. Metro. Gov’t of Nashville et al. Page 16

Although Royer occurred in the context of an airport detention, this court has

applied its analysis generally. See, e.g., Richardson, 949 F.2d at 854-57 (applying the

Royer factors when officers approached the defendant at a storage facility). In the

present case, Officer Martin accused Sutton of a crime, confiscated his cell phone, told

him that he “could not go anywhere or do anything,” grabbed him by the arm, and

escorted him from the hospital. Officer Martin’s affirmative command that Sutton could

not leave was in fact a clearer intrusion on Sutton’s liberty than the passive conduct that

the Royer court found significant—the failure to indicate that Royer was free to leave.

460 U.S. at 501.

In sum, Officer Martin is protected by qualified immunity with regard to his

initial contact with Sutton and in continuing to detain Sutton after the latter was

positively identified by Szcerbiak. But the allegations of Officer Martin’s conduct

between those two events are sufficient to state a claim that precludes qualified

immunity at this stage in the litigation.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the district court’s order

denying Officer Martin’s motion to dismiss, but we do so by considerably narrowing the

scope of Sutton’s Fourth Amendment claim.