# Farm Labor Organizing Committee v. Ohio State Highway Patrol > Court of Appeals for the Sixth Circuit · October 17, 2002 · 308 F.3d 523 URL: https://www.frixlaw.com/law-library/cases/9495474 ## Case - **Full name:** FARM LABOR ORGANIZING COMMITTEE, Et Al., Plaintiffs-Appellees, v. OHIO STATE HIGHWAY PATROL, Et Al., Defendants-Appellants - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** October 17, 2002 - **Citations:** 308 F.3d 523; 2002 U.S. App. LEXIS 21630; 2002 WL 31317699 - **Precedential status:** Published - **Opinion:** Dissent by Kennedy - **Judges:** Kennedy, Moore, Cole - **Cited by:** 166 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9495474 ## How later opinions describe it (automated extraction) - holding that state trooper’s possession of some race-neutral basis for initiating investigation was insufficient, standing alone, to entitle trooper to qualified immunity from liability on plaintiff’s equal protection claims if plaintiff could demonstrate that trooper was part… - holding that a plaintiff who alleges selective enforcement of facially neutral laws must demonstrate that the offensive enforcement “ ‘had a discriminatory effect and that it was motivated by a discriminatory purpose’ ” (quoting Wayte v. United States, 470 U.S. 598, 608, 105 S… - stating that in Whren the Supreme Court confirmed that “an officer’s discriminatory motivations for pursuing a course of action can give rise to an Equal Protection claim, even where there are sufficient objective indicia of suspicion to justify the officer’s actions under the… - stating that the Supreme Court has "confirmed that an officer’s discriminatory motivations for pursuing a course of action can give rise to an Equal Protection claim, - even where there are sufficient objective indi-cia of suspicion to justify the officer's actions under the F… - holding that “[a] claimant can demonstrate discriminatory effect by naming a similarly situated individual who was not investigated or through the use of statistical or other evidence which ‘addresses the crucial question of whether one class is otherwise similarly situated’” ## Opinion text KENNEDY, Circuit Judge, dissenting. This appeal deals only with officer Kiefer’s individual liability to plaintiffs Esparza and Aquilar for events that occurred after a traffic stop for a burned-out headlight. Thus, while the plaintiffs’ claims are made as a part of a class action, Kiefer is liable to plaintiffs only for his acts in this incident. Plaintiffs do not question the legitimacy of the initial traffic stop. They do not claim they were stopped because of their race. Nor do plaintiffs challenge the propriety of the drug search of their vehicle. The inquiry as to their immigration status and green cards did not arise until after a drug dog had alerted to their vehicle. At that time, plaintiff Aquilar was in defendant’s cruiser where Kiefer was checking Aquilar’s Illinois driver license and registration. After the dog alert, a second officer asked passenger Esparza, who was still in Aquilar’s vehicle, for her identification and brought her to Kiefer’s cruiser. Thereafter, Kiefer asked plaintiffs for Aquilar’s green card and where they had gotten their green cards. The facts are in dispute as to just what plaintiffs said. Both plaintiffs spoke very little English. Defendant states that plaintiffs said they paid for their green cards. Plaintiffs state *552 they said they paid all the necessary fees for their green cards. The district court appears to have accepted the defendant’s version of what was said. For plaintiffs’ equal protection claim, it makes little difference since the discrimination they complain of is the inquiry about their immigration status — “that Officer Kiefer targeted them for investigation regarding their immigration status solely on the basis of their being Hispanic.” Kiefer moved for summary judgment on plaintiffs’ equal protection claim on the ground that the undisputed facts show that he had a racially neutral reason for inquiring about plaintiffs’ immigration status; namely, their difficulties in speaking and understanding English. He also moved for summary judgment on plaintiffs’ Fourth Amendment claim, asserting that he seized their green cards when they responded to his question as to where they got the green cards with the response that they paid for them. This led him to the conclusion they were obtained illegally. The possession of illegal identification is a crime under Ohio law. He also asserts this is a race neutral reason for their seizure. While it is unclear whether the court rejects the inability to speak English as race neutral, if it does then it should affirm the summary judgment for plaintiffs' since it is the race neutral basis relied on by Kiefer for his inquiry. The majority, while not rejecting the inability to speak and understand English as a race neutral reason, declines to apply our decision in United States v. Travis, 62 F.3d 170 (6th Cir.1995), cert. denied, 516 U.S. 1060 , 116 S.Ct. 738 , 133 L.Ed.2d 688 , in which we acknowledged that “consensual searches may violate the Equal Protection clause when they are initiated solely based on racial considerations.” Travis placed the burden on plaintiffs to show that no race neutral motives played a role in the challenged police conduct. Travis, 62 F.3d at 173-74 (explaining that when officers “decide to interview a suspect for many reasons, some of which are legitimate and some of which [are] based on race ... the use of race in the pre-contact stage does not give rise to any constitutional protections.”). While Travis deals with an equal protection challenge to consensual police interviews of airport travelers, and here we are dealing with questions to persons whose continued detention is because there is probable cause to believe they are transporting illegal drugs, the inquiry here, if anything, is less intrusive — a mere request to see another item of identification rather than a consensual search. Further, it is an inquiry which must be made were the officers to arrest plaintiffs since the arrest of an alien requires the arresting officers to notify the alien’s consulate under the Vienna Convention on Consular Relations April 25, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820. Also OHSP policy # 9-902.08 requires special steps where an alien is arrested. These requirements apply without regard to the race of the alien. While there ordinarily may be no reason to inquire about immigration status in conjunction with a traffic stop, which ordinarily does not result in an arrest but rather a traffic citation, a broader inquiry is justified for a drug investigation which is likely to result in an arrest. While some other officer is searching the vehicle, I would hold that an officer could further investigate the identity of the driver and passenger and the likelihood of their being from a nation that is a known drug source. Nowhere is it clearly established that the officers must wait until they find the drugs before they may inquire further regarding suspects whose difficulty in speaking English suggests they may be *553 aliens. This is not a case where the police initiated the investigation based on race. Whether Travis was correctly decided or whether it should continue to be followed, I believe it is sufficient to entitle Kiefer to qualified immunity in the action against him individually for damages. I would, therefore, reverse the denial of qualified immunity on this issue. A recurring problem in this appeal is that the district court wrote no separate opinion dealing with plaintiffs’ claims against Kiefer individually. The district court’s opinions dealt with other defendants as well as with class claims. Thus, in describing discriminatory conduct, neither the district court nor the majority limit their recitation of the facts to Kiefer’s conduct with respect to plaintiffs. Kiefer is not personally liable for another’s conduct. There is no claim he supervised other defendants. I am at a loss to understand how Kiefer’s intent can be inferred from Sergeant Elling’s or Trooper Pache’s conduct or that of other OSHP officials. In rejecting Travis , the majority would adopt a standard shifting to the defendant the burden of establishing that the same decision would have resulted even if the impermissible purpose had not been considered, relying on Wayte and Armstrong. The effect of the majority’s holding would greatly diminish the protection of qualified immunity in equal protection claims. It would be a rare case involving a minority where plaintiff could not assert an issue of fact as to an officer’s intent no matter how strong the non-diseriminatory motive may be. I assume the majority would apply the same balancing to cases where there is probable cause as well as to the investigative stop we have here. The balancing would require officers engaged in an investigation to make, at their peril and at every step, a decision as to whether they would pursue their present course of investigation if they had no discriminatory motive. They may or may not be thinking of the discriminatory motive at the time. And keep in mind that it is not whether this officer would or would not act the same. To be prudent the officer must consider what a jury would be likely to conclude — and all this would need to be done on the spot — perhaps in seconds. The question of what plays a determinate role is not one easily decided. Confronted by a related problem in Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996), where an officer engaged in law enforcement was alleged to have mixed motives in stopping a vehicle but had probable cause to do so, the Court held that if the officer had probable cause to stop the vehicle, the Court would not inquire whether the officer had another motive. Although the court left open the question of whether Whren’s holding would apply if challenged on equal protection grounds, it would be a trap for the unwary if the officer were subject to a suit for damages after he or she arrested someone with probable cause and a jury concluded the officer had not proved he would have made the arrest except for a discriminatory purpose. I believe there is the same need for the Whren analysis in equal protection claims, a holding that an officer may arrest with probable cause and that the court will not examine whether the officer also had a discriminatory purpose. In Whren , recognizing that the Court had been unwilling to entertain Fourth Amendment challenges based on individual motivation of officers, petitioners had sought a standard as to what a reasonable officer would have done under same circumstances. In rejecting that standard, the Court stated: the Fourth Amendment’s concern with “reasonableness” allows certain actions *554 to be taken in certain circumstances, whatever the subjective intent. See, e.g. [United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973) ]. Whren, 517 U.S. at 814 , 116 S.Ct. 1769 . Elsewhere in its opinion, the Court characterized Robinson, holding as follows: We described Robinson as having established that “the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” 436 U.S. at 136, 138, 98 S.Ct. at 1723. Id. at 813, 116 S.Ct. 1769 (quoting Scott v. United States, 436 U.S. 128 , 98 S.Ct. 1717 , 56 L.Ed.2d 168 (1978)). The Court found no need to do a balancing analysis except for cases conducted in an extraordinary manner, harmful to a person’s privacy or physical interest. While the Court pointed out, But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. Id. at 813, 116 S.Ct. 1769 , it would be anomalous and a trap for the unwary to tell police officers they could arrest with probable cause without regard to motivation but they would be liable for damages for the same conduct under the equal protection clause unless they could prove to a jury they would have done the same without the discriminatory motive. There is no reason to believe that the Court would reject its holding that probable cause to believe the law has been broken “outbalances” private interest in avoiding police contact. I must also respectfully dissent from the majority’s disposition of plaintiffs’ Fourth Amendment claim. I do not believe we have jurisdiction to decide defendant’s appeal since there is a material fact in dispute. Defendant has not accepted for the purpose of this appeal plaintiffs’ assertion that they told Kiefer they had paid all the necessary fees, rather than, as asserted by Kiefer, that they paid for their green cards. If the jury believed plaintiffs’ testimony, no retention after the drug investigation ended was permissible because there would have been no basis for a reasoned suspicion that the cards were counterfeit, invalid, or illegally obtained and therefore contraband under Ohio law. Under Johnson v. Jones, 515 U.S. 304 , 115 S.Ct. 2151 , 132 L.Ed.2d 238 (1995), the court of appeals may not review an interlocutory appeal on the grounds of qualified immunity where there are material issues of fact unresolved. I would dismiss the Fourth Amendment portion of the appeal for that reason. We review defendant’s motion for summary judgment de novo. In the district court, Kiefer argued that he had probable cause to seize the cards in view of the plaintiffs’ admission that they had paid for the cards. The district court found only a reasonable suspicion to seize the cards. While defendant accepted the factual findings of the district court, probable cause is not a fact but a legal issue reviewed de novo, Ornelas v. United States, 517 U.S. 690 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996), or at least a mixed question where the legal issues are reviewed de novo by the appellate court. Kiefer has continued to argue in his brief on appeal that he lawfully seized the cards. If we accept as fact that plaintiffs said they “paid for the cards,” I would hold he had probable cause to seize the cards. Even if Kiefer erred in concluding that probable cause existed to *555 seize the cards, he would be entitled to qualified immunity because his conclusion was reasonable, if mistaken. Hunter v. Bryant, 502 U.S. 224, 228, 229 , 112 S.Ct. 534 , 116 L.Ed.2d 589 (1991); Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). The cards would be contraband under Ohio law since they would be forged if not lawfully issued to plaintiffs. Possession of a writing known to be forged with the purpose to utter or uttering an identification card is a crime under Ohio law. CRC §§ 2901.01(m), 2913.32 and 2933.42. The green card is clearly an identification card. Kiefer knew that green cards are not legally bought and paid for. He had plaintiffs’ admissions that their cards had been paid for. Clearly the cards were possessed with the intent to use them as identification. The cards were evidence of the suspected crime. They could easily be destroyed if not retained. As the district court recognized, Ohio State Highway Patrol troopers are entitled to seize forged documents. (J.A. 205) As the Court stated in Texas v. Brown, 460 U.S. 730 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983): [P]robable cause is a fleidble, commonsense standard. It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” Carroll v. United States, 267 U.S. 132, 162 , 45 S.Ct. 280, 288 , 69 L.Ed. 543 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, nontechnical” probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176 , 69 S.Ct. 1302, 1311 , 93 L.Ed. 1879 (1949). Id. at 742 , 103 S.Ct. 1535 . If the cards were legally seized on this basis, the continued retention of the green cards does not constitute a separate Fourth Amendment seizure. Fox v. Van Oosterum, 176 F.3d 342 (6th Cir.1999). 1 If I am in error and there was no probable cause to seize the cards, then I agree that United States v. Place, 462 U.S. 696 , 103 S.Ct. 2637 , 77 L.Ed.2d 110 (1983) was the controlling-established law and the cards were required to be returned after the search for drugs was completed. Finally, I do not believe we should apply the doctrine of pendent appellate jurisdiction and affirm the grant of summary judgment to plaintiffs for at least three reasons. First, the parties have been given no opportunity to brief the issue. While plaintiffs asked that we review additional issues beyond defendant’s qualified immunity, that motion was not granted. Second, in granting summary judgment to plaintiffs, the court is foreclosing defendant Kiefer from appealing the issue of whether he had probable cause to seize the green cards. Judge Moore’s opinion holds that in his brief on appeal Kiefer does not challenge the district court’s ruling that he *556 did not possess probable cause to seize the green cards and does not address the merits of that issue. Although Kiefer did not raise the issue specifically in his brief, he has not waived it explicitly either and has argued in his brief in chief that the cards could be seized as contraband, a status they could achieve only if there were probable cause for their seizure. It is patently unfair to grant summary judgment to plaintiffs without reviewing an issue they raised in the district court but may not have adequately raised on the limited appeal of a qualified immunity defense. In effect, the panel is requiring that defendants appealing on qualified immunity must appeal all possible issues and if defendants fail to appeal an issue, judgment may be entered against them and they will be foreclosed from presenting that issue at trial. Third, neither we nor the district court have clearly defined the boundaries of the constitutional violation. Judge Moore’s opinion concludes that at least the retention of the cards beyond some time on Monday, when their validity could have been checked, violated the Fourth Amendment. If the violation is controlled by Place , and there was no probable cause, it seems to me that retention of the green cards after finding no drugs and permitting plaintiffs to be on their way completed the constitutional violation. A green card seems as closely related and important to a traveler as luggage and the Supreme Court held in Place that a seizure of drugs based on reasonable suspicion could not be extended 90 minutes to wait for the drug dog. The district court appears to hold that the retention for verification “would only be permissible under the Fourth Amendment if Trooper Kiefer made clear to plaintiffs how he planned to reunite them and the green cards and if retention was no longer than absolutely necessary to verify the documents.” (J.A. 210) While the Court in Place held that “the violation was exacerbated by the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion.” 462 U.S. at 710 , 103 S.Ct. 2637 , there is no suggestion that providing that information is constitutionally required or that, standing alone, the failure to give such information is a constitutional violation. Also, while the district court seems to accept the officer’s testimony that plaintiffs told them they paid for the cards, plaintiffs have not abandoned their claim that they told him they had paid the necessary fees. (App.Br.4) They maintain there was no reasonable suspicion justifying retention of the cards in light of that answer. If the jury believed they said “fees” or paid the fees, it could find there was no basis to retain the cards beyond the time taken for the drug investigation. 2 In granting summary judgment to plaintiffs, the district court also held that Kiefer was required to give plaintiffs some kind of substitute card. I cannot agree that this requirement was clearly established or constitutionally required. The court is granting summary judgment to both plaintiffs. The second officer, not defendant Kiefer, took the green *557 card from Esparza. The record is unclear as to the relationship between defendant Kiefer and the second officer. They appear to have arrived in separate vehicles, but even this is unclear. While Kiefer retained Esparza’s card, he was not the one who seized it. In view of the factual issues, the uncertainty as to the parameters of the Fourth Amendment violation, the lack of briefing, the denial of the ability to raise the probable cause issue on appeal of summary judgment for plaintiffs, even though he clearly did not waive it, I do not believe we should decide plaintiffs’ motion for summary judgment on the Fourth Amendment claim. It seems to me that affirming summary judgment for plaintiffs on our own initiative requires more certainty than we have here. I do not see the issue that is inextricably intertwined in the issues properly before us. . As we stated in United States v. Anderson, 923 F.2d 450, 457 (6th Cir.1991), "probable cause is determined by an objective examination of all of the circumstances known to the officers. Just as a subjective belief by the arresting officer would not establish probable cause where none existed, a subjective belief by the arresting officer cannot destroy probable cause where it exists.” (citing Florida v. Royer, 460 U.S. 491, 507 , 103 S.Ct. 1319, 1329 , 75 L.Ed.2d 229 (1982)). Our court went on to hold that "knowledge of the precise crime committed is not necessary to a finding of probable cause provided that probable cause exists showing that a crime was committed by the defendants.” Id. at 457. . It is unclear whether plaintiffs will be permitted to show that the officer was without basis to seize the green cards because they said they paid the fees — not that they paid for the cards. Their damages may be different if there were no basis for seizing the cards. [Will defendant be precluded from arguing that the appearance of one of the cards made him question its validity? A fact he testified to in his deposition.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9495474. Public record. Not legal advice.