The opinion
Appellate Case: 22-4081 Document: 010111002488 Date Filed: 02/20/2024 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 20, 2024
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_______________________________________
JOSEPH M. HOSKINS,
Plaintiff - Appellant,
v. No. 22-4081
JARED WITHERS; JESS L.
ANDERSON,
Defendants - Appellees.
___________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:20-CV-00749-HCN)
_________________________________________
Karra J. Porter, Christensen & Jensen (Anna P. Christiansen, Christensen
& Jensen, P.C., with her on the briefs), Salt Lake City, Utah, for Plaintiff-
Appellant.
J. Clifford Petersen, Assistant Utah Solicitor General, Utah Attorney
General’s Office, Salt Lake City, Utah, for Defendant-Appellees.
__________________________________________
Before BACHARACH, PHILLIPS, and EID, Circuit Judges.
___________________________________________
BACHARACH, Circuit Judge.
___________________________________________
This appeal grew out of a traffic stop during Mr. Joseph Hoskins’s
drive through Utah in November 2018. Mr. Hoskins’s car had an Illinois
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license plate, but the lettering was partially obstructed. Though the stop
began uneventfully, it quickly escalated when the trooper (Jared Withers)
directed a trained narcotics dog to sniff the car. Tempers flared; and
Trooper Withers took Mr. Hoskins’s cell phone, pointed a gun at him,
applied handcuffs, patted him down, and searched his car. The trooper
found a large amount of cash and arrested Mr. Hoskins.
The traffic stop, dog sniff, search, and arrest led Mr. Hoskins to sue
Trooper Withers for violating the First and Fourth Amendments. 1 These
claims trigger seven issues:
1. The traffic stop. The trooper could conduct a traffic stop only
if he had reasonable suspicion to believe that Mr. Hoskins had
violated Utah law. A Utah law required maintenance of license
plates to keep the lettering legible. But did the Utah law apply
to license plates issued in other states? We answer yes.
2. Prolonging of the traffic stop. After stopping the car, the
trooper could ask the driver for proof of insurance. But the
trooper couldn’t prolong the traffic stop to investigate the
possibility of a crime. But what happens if the driver couldn’t
find the proof of insurance? The trooper could ask the driver to
look. While the driver was looking could the trooper conduct a
dog sniff outside the car? We answer yes.
3. Reasonableness of protective measures during an
investigative detention. After the stop became confrontational,
the trooper decided to search the car and detain the driver. At
some point, the restraint could elevate the detention into an
arrest. But when the driver reacted angrily and positioned his
hands in or near his pockets, could the trooper reasonably
believe that he wasn’t elevating the stop into an arrest when he
1
Mr. Hoskins also claimed violation of the state constitution, but
these claims aren’t at issue.
2
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pointed a gun, handcuffed the driver, conducted a patdown, and
put the driver in the patrol car? We answer yes.
4. Arguable probable cause to search the car. A trained
narcotics dog’s reaction to the presence of drugs can establish
probable cause to justify a search of a car. When a trained dog
tries to leap into a car, does that reaction create at least
arguable probable cause to conduct a search? We answer yes.
5. Arguable probable cause to arrest the driver. The search led
to the discovery of a large amount of cash hidden in the car.
Did the trooper obtain arguable probable cause to arrest the
driver based on the dog’s reaction and the presence of the cash?
We answer yes.
6. Lack of a clearly established violation for retaliatory use of
force. We’ve never held that the Constitution prohibits an
officer from pointing a gun at suspects when there’s probable
cause to believe that they’re committing a felony. Given the
absence of such a holding, did the trooper violate a clearly
established constitutional right by pointing a gun at the driver
to retaliate for protected speech? We answer no.
7. Lack of a clearly established violation involving excessive
force. When a serious crime is suspected, we’ve held that the
Fourth Amendment doesn’t prohibit a law-enforcement officer
from pointing a gun at the suspect. Given that holding, did the
trooper violate a clearly established constitutional right by
pointing a gun at the driver when he reacted angrily and
positioned his hands in or near his pockets? We answer no.
Mr. Hoskins also sued Mr. Jess Anderson, Commissioner of the Utah
Department of Public Safety, claiming a violation of the Fourteenth
Amendment’s due process clause. This claim arose after the confrontation
between Mr. Hoskins and Trooper Withers. That confrontation resulted in
the arrest of Mr. Hoskins, which in turn led to the taking of a DNA sample.
Despite the arrest, authorities never charged Mr. Hoskins; so Utah law
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required destruction of the DNA sample. But Mr. Hoskins allegedly had no
way to learn whether authorities had destroyed the DNA sample. Would the
alleged inability to verify compliance with state law constitute a denial of
due process? We answer no.
Background
1. Mr. Hoskins is stopped with a large amount of cash hidden inside
his car.
When Trooper Withers conducted the traffic stop, he and
Mr. Hoskins looked at the license plate. As they looked, Trooper Withers
requested Mr. Hoskins’s proof of insurance. Mr. Hoskins said that his
insurance information “should be in an email” on his phone, and Trooper
Withers asked Mr. Hoskins to sit in the patrol vehicle to answer questions
while he looked for the proof of insurance.
In the patrol vehicle, Trooper Withers put Mr. Hoskins’s information
into a computer. While Mr. Hoskins continued looking for his proof of
insurance, Trooper Withers called dispatch and asked for someone to check
on the status of the driver’s license and the existence of outstanding
warrants.
While waiting for dispatch to respond, Trooper Withers took a
trained narcotics dog to sniff the outside of Mr. Hoskins’s car. During the
sniff, the dog leaped and clawed at the front passenger door and tried twice
4
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to enter Mr. Hoskins’s car through an open window. Trooper Withers
commented that the dog was trying to follow the smell of drugs.
Based on the dog’s reaction, Trooper Withers decided to search
Mr. Hoskins’s car. At Trooper Withers’s instructions, Mr. Hoskins got out
of the patrol vehicle and put his cell phone on the vehicle’s hood.
Trooper Withers said that he was going to search the car and told
Mr. Hoskins where to stand. After Mr. Hoskins went to the designated
spot, Trooper Withers learned that the driver’s license was valid and no
outstanding warrants existed.
Trooper Withers walked toward the designated spot. As he
approached, he noticed that Mr. Hoskins was holding a second cell phone.
Trooper Withers took the cell phone from Mr. Hoskins and turned away. In
response, Mr. Hoskins repeatedly cursed at Trooper Withers and positioned
his hands in or near his pockets. Trooper Withers quickly turned around,
pointed his gun at Mr. Hoskins, and ordered him to keep his hands out of
his pockets. The trooper kept the gun pointed for roughly eight seconds as
Mr. Hoskins raised his arms.
Trooper Withers then put his gun away, handcuffed Mr. Hoskins,
conducted a patdown, and returned him to the patrol vehicle. Trooper
Withers and another officer then searched Mr. Hoskins’s car. The officers
found roughly $89,000 in cash, which was doubled-wrapped in plastic,
vacuum sealed, and hidden in the lining between the trunk and a rear seat.
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Trooper Withers arrested Mr. Hoskins, and jail personnel collected
Mr. Hoskins’s DNA. But no one pressed charges, and authorities released
Mr. Hoskins.
2. Mr. Hoskins sues, and the district court dismisses the action.
Mr. Hoskins sued under 42 U.S.C. § 1983, and the defendants
successfully moved to dismiss. The court ruled that
• Trooper Withers hadn’t violated the Constitution by making the
traffic stop, conducting a dog sniff, pointing a gun, conducting
a patdown, applying handcuffs, searching Mr. Hoskins’s car, or
arresting Mr. Hoskins, and
• Mr. Anderson hadn’t violated the Constitution by failing to
provide a way to ensure destruction of the DNA sample.
3. Our de novo review includes consideration of the video.
We conduct de novo review over the dismissal. SEC v. Shields,
744 F.3d 633, 640 (10th Cir. 2014). In conducting this review, we credit
“all well-pleaded factual allegations in the . . . complaint” and view the
allegations in a light favorable to Mr. Hoskins. Moore v. Guthrie, 438 F.3d
1036, 1039 (10th Cir. 2006) (quoting Sutton v. Utah State Sch. for Deaf &
Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)). The parties agree, however,
that we can also consider the video from Trooper Withers’s body camera.
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Issues Involving Trooper Withers
1. We decide whether Trooper Withers is entitled to qualified
immunity based on a two-part test.
Because Trooper Withers had asserted qualified immunity,
Mr. Hoskins needed to show that (1) the trooper violated a federal
statutory or constitutional right and (2) the unlawfulness of the conduct
was “clearly established at the time.” Reichle v. Howards, 566 U.S. 658,
664 (2012).
When we consider qualified immunity through a motion to dismiss,
we apply the plausibility standard set out in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Brown v. Montoya, 662 F.3d 1152, 1162–63 (10th Cir. 2011). Under Iqbal
and Twombly, the complaint must contain enough allegations of fact to
state a facially plausible claim. Kansas Penn Gaming, LLC v. Collins,
656 F.3d 1210, 1214 (10th Cir. 2011).
2. The Fourth Amendment wasn’t violated by the traffic stop or dog
sniff.
For the claims involving the traffic stop and dog sniff, the district
court reasoned that
• the video from Trooper Withers’s body camera had shown
reasonable suspicion for the traffic stop and
• the dog sniff had not prolonged the traffic stop.
We agree with these rulings.
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A. The initial traffic stop was justified.
Mr. Hoskins challenges the traffic stop, arguing that he didn’t violate
Utah law. But Utah law requires individuals to maintain their license plates
in a legible manner, and Mr. Hoskins’s license plate was partially
obstructed. 2 That obstruction led Trooper Withers to suspect a violation of
Utah law. Trooper Withers could conduct a traffic stop if his suspicion had
been reasonable. Swanson v. Town of Mountain View, Colo., 577 F.3d
1196, 1201 (10th Cir. 2009). The reasonableness of the suspicion entails an
objective inquiry. Id.
In conducting that objective inquiry, we regard Trooper Withers’s
suspicion as reasonable. Utah law requires maintenance of license plates to
keep the lettering legible. See Utah Code Ann. § 41-1a-404(3)(b)(ii)
(“[Every] license plate shall at all times be . . . maintained . . . in a
condition to be clearly legible.”). A trooper could reasonably suspect a
violation because the frame of the license plate was covering part of the
lettering of the state (Illinois). Because the state’s lettering was partially
covered, Trooper Withers had a reasonable basis to suspect a violation of
Utah’s legibility requirements.
2
In the complaint, Mr. Hoskins admitted that the lettering on the
license plate was partially obscured. Appellant’s App’x at 70.
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Mr. Hoskins argues that Utah’s legibility requirement applies only to
license plates issued in Utah. We rejected this argument in United States v.
Echkart, concluding that a driver had violated Utah law when his
California license plate wasn’t “clearly visible or legible.” 569 F.3d 1263,
1271–72 (10th Cir. 2009).
In Eckhart, the defendant hadn’t questioned the applicability of the
Utah law on drivers from other states. But the Court decided the issue
anyway, and we’re bound by that decision. See Wankier v. Crown Equip.
Corp., 353 F.3d 862, 866 (10th Cir. 2003) (stating that we’re bound by a
panel’s interpretation of state law unless the state’s highest court later
resolved the issue). Mr. Hoskins’s arguments do not allow us to skirt
Eckhart’s interpretation of Utah law. Thompson v. Weyeshaeuser Co.,
582 F.3d 1125, 1130 (10th Cir. 2009); see also United States v. Baker,
49 F.4th 1348, 1358 (10th Cir. 2022) (concluding that the presentation of a
new argument doesn’t allow us to deviate from a prior panel opinion). 3
3
Some other circuits also consider panel precedents as binding even
when a party presents arguments not made to the prior panel. See Tippitt v.
Reliance Standard Life Ins., 457 F.3d 1227, 1234 (11th Cir. 2006) (stating
that the court of appeals was bound by panel precedent even when the
appellant makes arguments not considered by the prior panel); Harris v.
Epoch Grp., 357 F.3d 822, 826 (8th Cir. 2004) (stating that “precedents do
not cease to be authoritative merely because counsel in a later case
advance a new argument” (quoting United States v. Hill, 48 F.3d 228, 232
(7th Cir. 1995))); In re Penn Central Transp. Co., 553 F.2d 12, 15 (3d Cir.
1977) (stating that a precedent controls even when an appellant makes an
argument not considered by the prior panel).
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We would follow Eckhart even if we were free to consider
Mr. Hoskins’s argument for limiting the scope of the Utah law. The Utah
law does not say anything to restrict the legibility requirement to license
plates issued in Utah. To the contrary, the law uses the passive voice,
requiring license plates to “be maintained” in a legible condition. Utah
Code Ann. § 41-1a-404(3)(b)(ii). The passive voice reflects a statutory
focus on how the license plate is maintained—not where it had been issued.
See Dean v. United States, 556 U.S. 568, 572 (2009) (stating that a use of
passive voice reflects a focus on the existence of an event rather than a
specific actor’s culpability).
We addressed similar statutory language in United States v. DeGasso,
369 F.3d 1139 (10th Cir. 2004). There we considered whether Oklahoma’s
legibility requirement applies when the driver’s license plate had been
issued in another state. Id. at 1145. We concluded that
• the first paragraph of the Oklahoma statute (directed to the
Oklahoma Tax Commission) applied only to vehicles registered
in Oklahoma and
• the second paragraph (mandating that the license plate be
“clearly visible at all times”) applied regardless of where the
license plate had been issued.
Id. at 1147. For the second conclusion, we reasoned in part that police
officers must identify vehicles regardless of where the license plate had
been issued. Id.; accord United States v. Ledesma, 447 F.3d 1307, 1313
(10th Cir. 2006) (holding that a similar Kansas statute requires legibility of
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license plates for vehicles driven in Kansas even when licensed in another
state); cf. United States v. Simpson, 520 F.3d 531, 536 (6th Cir. 2008)
(concluding that Tennessee’s statutory requirement on legibility applies to
out-of-state license plates, in part because the legislative purpose “would
surely be frustrated” if drivers from other states could avoid ready
identification when driving on Tennessee highways).
Our reasoning in DeGasso applies here. Like the Oklahoma statute in
DeGasso, some subsections of the Utah statute arguably apply only when
the license plate is displayed where it was issued. See, e.g., Utah Code
Ann. § 41-1a-401(3) (governing the physical characteristics of license
plates, such as the reflective material on the plate face, issued to Utah
registrants); Utah Code Ann. § 41-1a-402 (regulating the design of Utah-
issued license plates). But the provision here bears no such limitation. This
provision expressly applies to the maintenance of all license plates on
vehicles using Utah roads. Utah Code Ann. § 41-1a-404(3).
Mr. Hoskins argues that even if the license plate had violated Utah
law, authorities rarely stopped anyone for a violation. But if Mr. Hoskins
had been violating Utah law, it wouldn’t matter whether a law-enforcement
officer would generally stop someone for a violation. United States v.
Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc). 4
4
There we said that “[i]t is irrelevant, for purposes of Fourth
Amendment review, ‘whether the stop in question is sufficiently ordinary
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Mr. Hoskins bases his argument on case law involving retaliatory
arrests. Nieves v. Bartlett, 139 S. Ct. 1715, 1726 (2019). Under this case
law, officers don’t incur liability for retaliatory arrest if they had probable
cause for the arrest. Id. at 1722, 1724. An exception exists when officers
wouldn’t typically make an arrest even with probable cause. Id. at 1727.
But Mr. Hoskins doesn’t claim retaliatory arrest.
Granted, Mr. Hoskins elsewhere alleges protected speech and denies
the existence of probable cause. But these allegations don’t bear on a
trooper’s right to stop a driver for violating Utah’s equipment law. See
United States v. Bustillos-Munoz, 235 F.3d 505, 512 (10th Cir. 2000)
(stating that an officer can stop a driver for reasonable suspicion involving
violation of a state’s equipment law). So Trooper Withers could stop
Mr. Hoskins even if Utah drivers had frequently driven with obstructed
license plates.
B. The dog sniff didn’t prolong the traffic stop.
Reasonable suspicion would thus allow Trooper Withers to stop
Mr. Hoskins. To carry out the stop, the trooper could check Mr. Hoskins’s
driver’s license, determine whether outstanding warrants existed, and
inspect the proof of insurance. Rodriguez v. United States, 575 U.S. 348,
or routine according to the general practice of the police department or the
particular officer making the stop.’” Botero-Ospina, 71 F.3d at 787
(quoting United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993)).
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355 (2015). But Trooper Withers couldn’t prolong the traffic stop to
investigate the possibility of a crime. Id. at 353–55.
Mr. Hoskins argues that Trooper Withers prolonged the traffic stop
by conducting the dog sniff. We disagree. Trooper Withers didn’t begin the
dog sniff until he had already asked dispatch to check on warrants for
Mr. Hoskins and the status of his driver’s license. And when Trooper
Withers finished the dog sniff, Mr. Hoskins was still looking for his proof
of insurance and dispatch had not yet reported on the existence of
outstanding warrants or the status of the driver’s license. 5 So the dog sniff
did not extend the time of the traffic stop.
We addressed similar circumstances in United States v. Cates,
73 F.4th 795 (10th Cir. 2023), cert. pet. filed, No. 23-5903 (U.S. Oct. 27,
2023). There a state trooper had stopped a motorist for speeding in a rental
car. Id. at 799–800. The trooper asked for the rental contract, and the
driver looked for it. While he looked, the trooper told another officer to
conduct a dog sniff. The second officer finished the dog sniff before the
driver could find his rental contract. Id. at 807. We thus concluded that the
dog sniff hadn’t prolonged the traffic stop. Id. at 804.
5
In the complaint, Mr. Hoskins alleged that the dog sniff had taken
about a minute. Appellant’s App’x at 83 ¶ 51.
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Under Cates, Trooper Withers’s dog sniff did not prolong
Mr. Hoskins’s traffic stop. In Cates, the driver was still looking for the
rental contract when the dog sniff ended. And here, the trooper finished the
dog sniff while Mr. Hoskins was still looking for his proof of insurance. In
both Cates and our case, the traffic stop would have taken the same amount
of time with or without the dog sniff. See United States v. Mayville,
955 F.3d 825, 833 (10th Cir. 2020) (“Because the dog sniff and alert were
contemporaneous with the troopers’ reasonably diligent pursuit of the
stop’s mission, the subsequent search . . . did not violate [the defendant’s]
Fourth Amendment rights.”).
Mr. Hoskins questions the applicability of Cates, arguing that
Trooper Withers waited too long to contact dispatch. But even if Trooper
Withers had contacted dispatch earlier, the traffic stop would have taken
just as long because Mr. Hoskins would still have been looking for his
proof of insurance. So even if the trooper had contacted dispatch earlier,
the dog sniff wouldn’t have prolonged the traffic stop. 6
6
Mr. Hoskins also alleges that the trooper delayed the stop by asking
questions unrelated to the equipment violation. “But an officer’s mission
during a traffic stop is not limited to determining whether to issue a
ticket.” United States v. Cone, 868 F.3d 1150, 1153 (10th Cir. 2017). And
Mr. Hoskins doesn’t say which questions were problematic or why those
questions exceeded the scope of the trooper’s mission. We thus lack a
meaningful argument to consider.
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3. Asking Mr. Hoskins to sit in the patrol car did not turn the
detention into an arrest.
Mr. Hoskins argues that when he was forced to sit in the patrol car,
the stop escalated into an arrest. We disagree. A stop doesn’t escalate into
an arrest if the detention is reasonably related to the circumstances
justifying the stop. United States v. Muldrow, 19 F.3d 1332, 1335–36
(10th Cir. 1994).
The video shows that
• Mr. Hoskins needed to look on his cell phone for his proof of
insurance and
• Trooper Withers ultimately called dispatch from the patrol car.
In these circumstances, Trooper Withers could reasonably maintain safety
by asking Mr. Hoskins to sit in the patrol car.
Many other circuits have concluded that an order to sit in a police car
doesn’t automatically turn a detention into an arrest. See United States v.
Bradshaw, 102 F.3d 204, 211 (6th Cir. 1996) (“Detention in a police car
does not automatically constitute an arrest.”); United States v. Rodriguez,
831 F.2d 162, 166 (7th Cir. 1987) (concluding that detention in a patrol car
did not turn the seizure into an arrest); United States v. Martinez, 462 F.3d
903, 908 (8th Cir. 2006) (concluding that placement of the driver in a
patrol car did not turn a traffic stop into an arrest); United States v. Parr,
843 F.2d 1228, 1230 (9th Cir. 1988) (“Certainly, there is no per se rule
that detention in a patrol car constitutes an arrest.”). These cases make
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sense here. Trooper Withers asked Mr. Hoskins to sit in the patrol car, and
Mr. Hoskins complied with the request. By asking Mr. Hoskins to join him
in the patrol car, Trooper Withers was continuing to carry out the mission
of the traffic stop. We thus conclude that the trooper didn’t turn the traffic
stop into an arrest by asking Mr. Hoskins to sit in the patrol car.
4. The dog’s reaction created arguable probable cause to search the
car.
Trooper Withers and another officer searched Mr. Hoskins’s car. For
that search, the officers needed probable cause to believe that the car
contained contraband. United States v. Benard, 680 F.3d 1206, 1210
(10th Cir. 2012). But even if the officers had lacked probable cause, they
would incur personal liability only if they had violated a clearly
established right. Camreta v. Greene, 563 U.S. 692, 705 (2011); see p. 7,
above.
Though the district court didn’t rely on the absence of a clearly
established right, we can affirm on any ground adequately supported by the
record. Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004). In
deciding whether to consider affirmance on a different ground, we address
• whether the issue was briefed in district court and on appeal,
• whether the issue is legal or factual, and
• whether the record is adequately developed.
Id. at 1162.
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The issue was fully briefed in district court and on appeal, and the
clearly established nature of a right entails a question of law. Garrett v.
Stratman, 254 F.3d 946, 951 (10th Cir. 2001). On that legal question, the
district court was bound by the allegations in the complaint and the video
from Trooper Withers’s body camera. See p. 6, above. So the record was
fully developed. We thus exercise our discretion to consider Trooper
Withers’s argument that any constitutional violation wouldn’t have been
clearly established.
We ordinarily consider a right clearly established only “when it’s
apparent from a precedent or the clear weight of authority from other
courts.” Williams v. Hansen, 5 F.4th 1129, 1132 (10th Cir. 2021). But even
without an applicable precedent or consensus of case law, a right can be
clearly established when it is obvious. Taylor v. Riojas, 141 S. Ct. 52, 53–
54 (2020) (per curiam).
We determine whether Trooper Withers violated a clearly established
right by considering whether probable cause was at least arguable.
Stonecipher v. Valles, 759 F.3d 1134, 1142 (10th Cir. 2014). Probable
cause was arguable if Trooper Withers had an objectively reasonable belief
that probable cause existed (even if that belief was mistaken). Id. In our
view, Trooper Withers could reasonably believe that the dog sniff had
created probable cause.
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A trained narcotics dog can react to drugs through either an alert or
an indication. An alert takes place when the dog reacts to a known odor by
changing body posture and increasing respiration. United States v. Forbes,
528 F.3d 1273, 1275 n.3 (10th Cir. 2008). An indication involves other
behavioral changes that show the precise location of the drugs. Id. For
example, a dog might signal the location of the drugs by staring, sitting,
scratching, biting, or barking. Id.
A trained narcotics dog’s alert or an indication is enough to create
probable cause for a search. See United States v. Parada, 577 F.3d 1275,
1281 (10th Cir. 2009). So we must assess the objective reasonableness of
Trooper Withers’s belief that the dog had alerted or indicated. For that
determination, we credit the allegations in the complaint. See p. 6, above.
But the parties agree that we can supplement those allegations with the
video of the dog sniff. See p. 6, above.
The video shows that the dog tried twice to leap into an open
window. After the first effort, Trooper Withers commented that the dog
was “following an odor right into the car.” Bodycam 2:37:45, 2:37:55.
After the dog tried again to leap into the car, the trooper said that he
regarded the dog’s behavior as an indication. Bodycam 2:38:00. Even if the
trooper had been wrong, however, his characterization was at least
reasonable because the dog had tried to leap into the car’s open window.
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When the dog sniff took place, we had characterized similar reactions
from trained narcotics dogs as enough for probable cause. See United
States v. Parada, 577 F.3d 1275, 1281 (10th Cir. 2009) (upholding the
district court’s finding that a dog had alerted when it stiffened, breathed
heavily, and tried to jump into the window on the driver’s side); United
States v. Woods, 351 F. App’x 259, 263 (10th Cir. 2009) (unpublished)
(stating that a dog had alerted when it stopped twice to smell a particular
spot and stuck its head into the window on the passenger side); United
States v. Gavilanas-Medrano, 479 F. App’x 166, 171 (10th Cir. 2012)
(unpublished) (upholding the finding of an alert when a dog had stood on
its hind legs and sniffed along the seam of the windshield and hood). 7
Mr. Hoskins questions the significance of the dog’s second effort to
leap into the car, downplaying the significance of the reaction and arguing
that Trooper Withers had given an audible command for the dog to react. 8
The video does show that the trooper made a sound before the dog tried to
leap into the car for a second time. But before the trooper made this sound,
7
Though two of these cases aren’t precedential, they show that a
trooper could reasonably infer probable cause from the dog’s reaction. See
Grissom v. Roberts, 902 F.3d 1162, 1168 (10th Cir. 2018) (“[A]n
unpublished opinion can be quite relevant in showing that the law was not
clearly established.” (emphasis in original)).
8
Mr. Hoskins doesn’t allege in the complaint that the trooper gave a
command for the dog to react.
19
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the dog had already tried to leap into the car’s open window. So probable
cause was at least arguable even if we disregard the dog’s second effort to
leap into the car.
5. Trooper Withers didn’t violate a clearly-established right by
conducting protective measures prior to the search.
Though Trooper Withers had arguable probable cause to search the
car, he doesn’t suggest that he had enough information to make an arrest
until he searched the car. So the timing of the arrest matters. Mr. Hoskins
alleges that he had been arrested prior to the search of his car; Trooper
Withers argues that he didn’t make the arrest until after he had conducted
the search.
The required probable cause differs for search of a car and for an
arrest. For an arrest, probable cause exists when reasonably trustworthy
sources alert an officer to facts and circumstances that would warrant a
person of reasonable caution to believe that an offense has been committed
or is being committed. Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir.
1995). For a car search, probable cause exists if the totality of the
circumstances create a fair probability that the car contains contraband or
evidence of a crime. United States v. Nielsen, 9 F.3d 1487, 1489–90
(10th Cir. 1993).
We can assume, for the sake of argument, that Mr. Hoskins is correct
in alleging an arrest prior to the search of his car. Even with this
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assumption, Trooper Withers asserts qualified immunity, arguing that the
case law wouldn’t have clearly established the escalation of his
investigative detention into an arrest.
Though the district court didn’t address this argument, it was fully
briefed here and in district court. And the issue is legal, rather than
factual, without the need for any further development of the record. So we
can address Trooper Withers’s argument to affirm based on the lack of a
clearly established right. See p. 17, above.
We assess the clarity of the right based on the line between an
investigative detention and arrest. Drawing that line is fact-intensive
without the benefit of bright-line rules. See Hemry v. Ross, 62 F.4th 1248,
1254 (10th Cir. 2023) (“We conduct a fact-intensive inquiry to distinguish
between arrests and Terry stops.”); United States v. Neff, 300 F.3d 1217,
1220 (10th Cir. 2002) (“The allowable scope of an investigative detention
cannot be determined by reference to a bright-line rule[.]”). Instead of a
bright-line rule, we ask whether a reasonable officer could consider the
restraints to fall within the scope of detention. Manzanares v. Higdon,
575 F.3d 1135, 1150 (10th Cir. 2009).
On this question, Mr. Hoskins needed to show clear establishment of
“an unconstitutional arrest as opposed to a lawful investigative detention.”
Soza v. Demsich, 13 F.4th 1094, 1100–01 (10th Cir. 2021). To satisfy this
burden, Mr. Hoskins alleges escalation of the restraint by taking his second
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cell phone, pointing a gun, applying handcuffs, conducting a patdown, and
putting him in the patrol car. 9
Mr. Hoskins points out that without the cell phone, he couldn’t
record the encounter. But he doesn’t otherwise suggest that confiscation of
the cell phone would have elevated the encounter into an arrest. And he
didn’t suggest in district court that the confiscation of his cell phone would
have elevated the detention into an arrest.
After Trooper Withers took the second cell phone, Mr. Hoskins
reacted angrily and cursed. Trooper Withers turned around and saw
Mr. Hoskins with his hands in or near his pockets. At this point, Trooper
Withers could reasonably fear that Mr. Hoskins was going to pull out a
handgun.
Until then, the encounter had proceeded without incident: The two
men had looked at the license plate, discussed the legal requirement for
unobstructed license plates, and sat together in the patrol car. But the
encounter escalated with the dog sniff, as Mr. Hoskins snapped at the
9
Trooper Withers told Mr. Hoskins that he was being detained, not
arrested. But the trooper’s statement isn’t dispositive. See Cortez v.
McCauley, 478 F.3d 1108, 1117 n.8 (10th Cir. 2007) (en banc) (stating that
the law-enforcement officers’ subjective beliefs were irrelevant when they
told a suspect that he was not being arrested); accord United States v.
Jackson, 377 F.3d 715, 717 (7th Cir. 2004) (concluding that a similar
statement by a police officer doesn’t matter because the inquiry under the
Fourth Amendment is objective).
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trooper. At this point, Mr. Hoskins had not been patted down. 10 Trooper
Withers could thus believe that he needed to act quickly, pointing a gun at
Mr. Hoskins in case he was reaching for his own gun.
As Trooper Withers pointed his gun, he told Mr. Hoskins to remove
his hands from his pockets. Mr. Hoskins complied, raising his hands;
Trooper Withers put his gun away and applied handcuffs. Mr. Hoskins
alleges that even if pointing the gun hadn’t elevated the detention into an
arrest, the handcuffing would have done so.
For this allegation, our case law wouldn’t have provided clear
guidance to Trooper Withers. Many of our opinions stated that handcuffing
a suspect hadn’t elevated a detention into an arrest. United States v.
Merkley, 988 F.2d 1062, 1063–64 (10th Cir. 1993); United States v. Neff,
300 F.3d 1217, 1218–21 (10th Cir. 2002); United States v. Albert, 579 F.3d
1188, 1191, 1193–95 (10th Cir. 2009); United States v. Salas-Garcia,
698 F.3d 1242, 1249–52 (10th Cir. 2012). Of course, we had also held the
opposite many times. United States v. Melendez-Garcia, 28 F.3d 1046,
10
In the complaint, Mr. Hoskins pointed out that he had lifted his shirt
to reveal his waistband. Appellant’s App’x at 88 ¶ 96(a). Though he didn’t
have a weapon in his waistband, he could have had a weapon in his pockets
or socks. So a reasonable officer could have believed that a patdown was
necessary to prevent the possibility that Mr. Hoskins was carrying a
weapon in his pockets or socks. See United States v. Belin, 868 F.3d 43,
50–51 (1st Cir. 2017) (concluding that a frisk was permissible because the
suspect’s clothing prevented the officer from visually determining whether
the suspect had a firearm).
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1051–53 (10th Cir. 1994); Manzanares v. Higdon, 575 F.3d 1135, 1148–49
(10th Cir. 2009); Lundstrom v. Romero, 616 F.3d 1108, 1122–23 (10th Cir.
2010).
From our cases, “any reasonable officer would understand that it
[was] unconstitutional to handcuff someone absent probable cause or an
articulable basis to suspect a threat to officer safety combined with
reasonable suspicion.” Manzanares, 575 F.3d at 1150. But our case law
wouldn’t have provided Trooper Withers with an easy benchmark to assess
the seriousness of the threat. See Merkley, 988 F.2d at 1064 (stating that
our case law has “eschewed” “bright-line standards” on when handcuffing
would elevate a detention into an arrest). So even if the handcuffing had
elevated the detention into an arrest, the violation wouldn’t have been
clearly established.
After Mr. Hoskins was handcuffed, he was patted down. Trooper
Withers could view the patdown as a necessary safeguard during the search
of the car. To conduct the patdown, Trooper Withers needed only a
“minimum level of objective justification,” which could fall below the
threshold for probable cause or a preponderance of the evidence. United
States v. Rice, 483 F.3d 1079, 1083 (10th Cir. 2007) (quoting United States
v. Alcaraz-Arellano, 441 F.3d 1252, 1260 (10th Cir. 2006), and United
States v. Arvizu, 534 U.S. 266, 274 (2002)). Before Trooper Withers
conducted the patdown, he had seen Mr. Hoskins reacting angrily with his
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hands positioned near or in his pockets. In these circumstances, a trooper
could reasonably view the patdown as a necessary safeguard to ensure that
Mr. Hoskins wasn’t carrying a weapon while the officers searched the car.
After conducting the patdown, Trooper Withers needed to participate
in the search, diverting his focus from Mr. Hoskins. So Trooper Withers
put Mr. Hoskins in the patrol car. As noted earlier, courts had often held
that placement in a patrol car wouldn’t automatically turn a detention into
an arrest. See pp. 15–16. So any violation at this step wouldn’t have been
clearly established.
We may assume for the sake of argument that the combination of
measures turned the detention into an arrest. But a reasonable trooper
could easily have found such a conclusion far from obvious based on our
case law. In analogous circumstances, we upheld qualified immunity for
the officer in Soza v. Demsich, 13 F.4th 1094, 1099–1104 (10th Cir. 2021).
There the officer had pointed a gun at the suspect, patted him down, and
applied handcuffs. Id. at 1098, 1100 n.2. Though we had elsewhere held
that the measures turned the detention into an arrest, we upheld qualified
immunity for the officers because the facts cut both ways on the likelihood
of a danger to the officers, the plaintiff hadn’t identified a “sufficiently
on-point case” to render a constitutional violation clearly established, and
the district court and prior Tenth Circuit panel had differed on the
reasonableness of the protective measures. Id. at 1101–1104.
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The facts cut both ways here, too, and Mr. Hoskins hasn’t identified
a prior case recognizing a constitutional violation in similar circumstances.
He has cited cases recognizing that unreasonable force ordinarily turns an
investigative detention into an arrest. Appellant’s Opening Br. at 40 n.191.
But he does not suggest that the facts in those cases resemble the facts
here. And Trooper Withers pointed a gun, applied handcuffs, and
conducted a patdown only after he had seen Mr. Hoskins reacting angrily
with his hands positioned in or near his pockets. In these circumstances, a
trooper could reasonably regard the protective measures as necessary to
ensure safety. We thus affirm the dismissal of this claim based on the
absence of a clearly established right.
6. In pointing a gun, Trooper Withers didn’t violate a clearly
established right against retaliation or excessive force.
Mr. Hoskins claims that the trooper violated the First and Fourth
Amendments by pointing the gun. For the First Amendment claim,
Mr. Hoskins alleges that the trooper was retaliating for protected speech
(cursing at the trooper and complaining that he had allowed the dog to
scratch the car). For the Fourth Amendment claim, Mr. Hoskins alleges
that pointing the gun constituted excessive force. 11 The district court ruled
11
Mr. Hoskins also alleged that he had been shoved. But he doesn’t
argue on appeal that the shoving constituted excessive force.
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that the trooper hadn’t violated either constitutional amendment by
pointing the gun at Mr. Hoskins.
Mr. Hoskins challenges these rulings, and Trooper Withers defends
the rulings and argues in the alternative that any constitutional violation
wouldn’t have been clearly established. We address Trooper Wither’s
alternative argument because it is fully briefed, legal, and adequately
developed. See p. 17, above.
A. A violation of the First Amendment wouldn’t have been
clearly established.
To determine whether the right was clearly established, we consider
the allegations in the complaint and what we can see from the video. See
p. 6, above. The video shows that Trooper Withers pointed his gun at
Mr. Hoskins for roughly eight seconds, and Mr. Hoskins attributes the
pointing of the gun to the trooper’s anger for the cursing and complaints
about the dog sniff. We can assume for the sake of argument that the
cursing and complaints constituted protected speech. Even with this
assumption, however, we had no precedents finding a First Amendment
violation when an officer points a gun at a suspect to retaliate for protected
speech. 12
12
When the incident took place, one circuit had held that a retaliatory
use of force can violate the First Amendment. See Coady v. Steil, 187 F.3d
727, 733–34 (7th Cir. 1999).
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Even if Trooper Withers had scoured the case law, he might
reasonably have concluded that the First Amendment wouldn’t prevent him
from pointing his gun at Mr. Hoskins in the face of his cursing and
complaints. We addressed a similar issue in Frey v. Town of Jackson, Wyo.,
41 F.4th 1223 (10th Cir. 2022). There the plaintiff alleged that a law-
enforcement officer had unnecessarily applied a wristlock in the Spring of
2018 to retaliate for protected speech. Id. at 1230, 1235. We concluded
that the officer had qualified immunity based on the absence of any case
law that would clearly establish a First Amendment violation from the
retaliatory use of force. Id. at 1235–36. 13
We decided Frey in 2022, years after the encounter between Trooper
Withers and Mr. Hoskins. But Frey analyzed the clarity of our case law as
of the Spring of 2018, which preceded Trooper Withers’s traffic stop by
only a few months. Though Trooper Withers didn’t have the benefit of
Frey when he made the traffic stop, our opinion shows that only a few
months before Mr. Hoskins was stopped, a retaliatory use of force hadn’t
been clearly established as a First Amendment violation. We thus affirm
13
Trooper Withers doesn’t cite Frey, but we must consider “all relevant
case law.” Williams v. Hansen, 5 F.4th 1129, 1133 (10th Cir. 2021); see
Elder v. Holloway, 510 U.S. 510, 516 (1994).
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the dismissal of this claim based on the absence of a clearly established
protection against a retaliatory use of force. 14
B. A violation of the Fourth Amendment wouldn’t have been
clearly established.
We also uphold the dismissal of Mr. Hoskins’s claim under the
Fourth Amendment. This claim involves the use of excessive force when
the trooper pointed a gun at Mr. Hoskins for roughly eight seconds. Of
course, we’ve found excessive force when officers shoot unarmed and
unthreatening suspects. E.g., Finch v. Rapp, 38 F.4th 1234, 1243 (10th Cir.
2022). But not when an officer points a gun at a suspect. To the contrary,
we’ve held that the force isn’t excessive under the Fourth Amendment
when an officer points a gun at an adult suspected of a serious crime.
Henry v. Storey, 658 F.3d 1235, 1239–41 (10th Cir. 2011).
If Trooper Withers had scoured the case law, he might reasonably
have concluded that pointing the gun wouldn’t be excessive. We had no
14
Mr. Hoskins relies on a Supreme Court opinion post-dating the traffic
stop: Nieves v. Bartlett, 139 S. Ct. 1715 (2019). In Nieves, the Supreme
Court held that a retaliatory arrest doesn’t trigger liability when probable
cause existed. Id. at 1723. Following Nieves, two circuits have held that a
law-enforcement officer enjoys qualified immunity for retaliatory arrest
when probable cause is at least arguable. Novak v. City of Parma, Ohio, 33
F.4th 296, 305 (6th Cir. 2022); Nieters v. Holtan, 83 F.4th 1099, 1109–10
(8th Cir. 2023). And we conclude below that probable cause was at least
arguable. See pp. 31–34, below. But we need not determine whether
arguable probable cause would trigger qualified immunity on the
retaliation claim because there was no clearly established protection
against a retaliatory use of force.
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precedents finding excessive force when a law-enforcement officer points a
gun at a suspect for a matter of seconds, and a trained dog had already
alerted to the odor of illegal drugs in the car. And before the trooper drew
his gun, the suspect was cursing with his hands near or in his pockets. 15
Given these circumstances, reasonable law-enforcement officers could
reasonably believe that the Fourth Amendment would allow them to point a
gun at the suspect for roughly eight seconds.
Mr. Hoskins also contends that the situation became volatile only
because Trooper Withers had escalated the conflict by shoving Mr. Hoskins
and pointing the gun. But in district court and on appeal, Mr. Hoskins
doesn’t cite any pertinent case law or explain how a reasonable officer
should have recognized a constitutional violation from the shove or display
of a gun. We thus uphold the dismissal of the Fourth Amendment claim
based on the absence of a clearly established violation. See Cummings v.
Dean, 913 F.3d 1227, 1243 (10th Cir. 2019) (concluding that the plaintiff’s
failure to identify a factually similar precedent is fatal in qualified
immunity).
15
The trooper had seen Mr. Hoskins’s waistband, but had not done a
patdown. See note 10, above.
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7. The search yielded arguable probable cause for an arrest.
With Mr. Hoskins secured, Trooper Withers and another officer
searched the lining between the trunk and back seat and found $89,000 in
cash, double-wrapped in plastic and vacuum sealed. Trooper Withers then
arrested Mr. Hoskins.
Mr. Hoskins challenges the lawfulness of the arrest. The arrest would
have been lawful only if probable cause existed. United States v. Traxler,
477 F.3d 1243, 1246 (10th Cir. 2007). Probable cause for an arrest would
exist if Trooper Withers had reasonably trustworthy information that would
lead a prudent person to believe that Mr. Hoskins was committing a crime
or had already committed one. See p. 20, above. For the sake of argument,
we can assume that probable cause didn’t exist when Mr. Hoskins was
arrested. Even with this assumption, Trooper Withers urges us to affirm on
the ground that any constitutional violation would not have been clearly
established. We consider this argument because it’s fully briefed, legal,
and adequately developed. See p. 17, above.
A violation wouldn’t be clearly established if probable cause had
been at least arguable. Stonecipher v. Valles, 759 F.3d 1134, 1141
(10th Cir. 2014). Probable cause would have been arguable if reasonable
troopers could have believed that probable cause existed. Id.
Based on the video, reasonable troopers could believe that they had
probable cause to arrest Mr. Hoskins based on
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• the presence of roughly $89,000 in cash that had been double-
wrapped, vacuum sealed, and hidden in the car’s lining and
• the dog’s leaps when sniffing the car.
Mr. Hoskins argues that a large amount of cash wouldn’t be enough,
in itself, for probable cause. But even if a lot of cash weren’t enough in
itself, the amount did provide strong evidence of a connection to the drug
trade. See United States v. One Hundred Forty-Nine Thousand Four
Hundred Forty-Two & 43/100 Dollars ($149,442.43/100), 965 F.2d 868,
876–77 (10th Cir. 1992); 16 accord United States v. Thirty-Nine Thousand
Eight Hundred Seventy-Three and No/100 Dollars ($39,873.00), 80 F.3d
317, 319 (8th Cir. 1996) (recognizing “that possession of a large amount of
cash (here, nearly $40,000) is strong evidence that the cash is connected
with drug trafficking”); United States v. Brooks, 594 F.3d 488, 495 (6th
Cir. 2010) (“Courts have readily acknowledged that large sums of cash are
indicative of the drug trade[.]”). There wasn’t just a lot of money; it was
double-wrapped, vacuum sealed, and hidden in the car’s lining.
16
In district court and on appeal, Mr. Hoskins relies solely on this
opinion for the point that a large amount of currency isn’t alone sufficient
for probable cause. The opinion does state that “a large amount of hidden
currency in itself is not enough to establish that the money was furnished
or was intended to be furnished in return for drugs[.]” 965 F.2d at 877. But
the Court went on to conclude that the large amount of hidden currency “is
strong evidence of . . . an illicit connection to drug trafficking.” Id. The
Court thus included the “unusually large amount of hidden currency” as a
factor contributing to “probable cause.” Id.
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It’s possible, of course, that Mr. Hoskins was hiding the cash to
protect against theft. But given the way that the cash was packed and
hidden, Trooper Withers could doubt an innocent explanation. See United
States v. Orozco, 41 F.4th 403, 407–09 (4th Cir. 2022) (stating that
“innocent explanations seem unlikely” when $111,252 had been wrapped in
grocery bags and stashed in a hidden compartment). After all, “[i]t is
common for [currency related to illegal drug transactions] to be wrapped in
cellophane so as to minimize the ability for a drug-sniffing dog to detect
the drug residue often found on such currency, and to secrete it in a hidden
area of a vehicle to escape detection.” United States v. Reed, 443 F.3d 600,
604 (7th Cir. 2006).
A reasonable officer could thus consider the vacuum sealed double-
wrapping as an effort to conceal the odor of narcotics. This possibility
could appear more likely when the dog jumped while sniffing the car. See
United States v. Klinginsmith, 25 F.3d 1507, 1510 (10th Cir. 1994)
(recognizing probable cause for an arrest when a dog alerted to the outside
of a car); United States v. Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998)
(same).
Mr. Hoskins explains that he hid the money to prevent theft. But an
officer wasn’t compelled to credit this explanation for concealment of the
money in the car’s lining. See United States v. Reed, 443 F.3d 600, 604
(7th Cir. 2006) (concluding that concealment of a large amount of cash
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contributed to probable cause for an arrest even though the cash might
have been hidden to prevent theft).
Mr. Hoskins also points out that after the dog alerted, there were no
drugs found in the car. But a trooper could reasonably infer from the dog’s
reaction that the currency had been near illegal drugs. See United States v.
Saccoccia, 58 F.3d 754, 778 (1st Cir. 1995) (“Ordinary experience
suggests that currency used to purchase narcotics is more likely than other
currency to have come into contact with drugs.”).
Based on the large amount of cash, its wrapping and concealment,
and the dog’s leaps, Trooper Withers had at least arguable probable cause,
triggering qualified immunity on the claim of an unlawful arrest.
Issues Involving the DNA Sample
After Mr. Hoskins was arrested, he gave a DNA sample. But
authorities never charged Mr. Hoskins with a crime. Under Utah law,
authorities had an obligation to destroy the DNA sample. Utah Code Ann.
§ 53-10-406(1)(i) (2011). 17 But Mr. Hoskins allegedly lacks any way of
knowing whether authorities destroyed the sample. So he sued for denial of
due process.
For this claim, Mr. Hoskins alleges the right to a procedure that
ensures the destruction of his DNA sample. Granted, the Fourteenth
17
This section has been renumbered § 53-10-406(1)(h) (2022).
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Amendment’s due process clause limits a state’s ability to take away
entitlements. Dist. Att’y’s Off. for Third Jud. Dist. v. Osborne, 557 U.S.
52, 67 (2009). These entitlements can come from either the Due Process
Clause itself or state law. Kentucky Dep’t of Corrs. v. Thompson, 490 U.S.
454, 460 (1989). But neither the Due Process Clause nor state law creates
such an entitlement.
Mr. Hoskins relies on the constitutional right of privacy. But the Due
Process Clause does not provide individuals with a freestanding right to
their DNA evidence. See Dist. Att’y’s Off. for Third Jud. Dist., 557 U.S.
at 72 (concluding that the Fourteenth Amendment’s due process clause
doesn’t entitle defendants to evidence of their own DNA to prove factual
innocence); see also Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir.
1996) (upholding the constitutionality of a statute conditioning
discretionary parole on collection of DNA).
In the absence of an underlying substantive right, the Fourteenth
Amendment’s due process clause doesn’t create a protected interest in
procedure alone. Teigen v. Renfrow, 511 F.3d 1072, 1081 (10th Cir. 2007).
We addressed a similar issue in Stein v. Disciplinary Board of Supreme
Court of New Mexico, 520 F.3d 1183 (10th Cir. 2008). There the plaintiffs
claimed “a vested interest and confidence that the rules of procedure would
be followed.” Id. at 1192. We rejected this claim based on the lack of a
constitutionally protected liberty or property interest. Id. We reasoned that
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due process protects a substantive interest rather than serve as an end in
itself. Id. Likewise, Mr. Hoskins’s desire for procedural safeguards does
not trigger a liberty or property interest.
Mr. Hoskins disagrees, asserting a substantive interest under state
law. But he hasn’t identified a state law that creates an entitlement.
Instead, Mr. Hoskins argues that state law should provide a procedure to
ensure the destruction of his DNA. This argument for a change in state law
reflects the absence of a protected interest. See Elliot v. Martinez, 675 F.3d
1241, 1244 (10th Cir. 2012). The district court thus didn’t err in
dismissing the due process claim.
Conclusion
The district court acted correctly in dismissing the action.
With the gloss of the video, Trooper Withers was entitled to stop
Mr. Hoskins and conduct a dog sniff. The dog sniff created at least
arguable probable cause to search the car. The car’s license plate was
partially obstructed, and the video shows that a trooper could reasonably
believe that the dog had reacted to the odor of drugs. The resulting search
yielded roughly $89,000 that was double-wrapped, vacuum packed, and
hidden in the lining of the car. These circumstances created at least
arguable probable cause to arrest Mr. Hoskins.
The trooper also pointed a gun at Mr. Hoskins for roughly eight
seconds. We don’t need to decide whether this action involved retaliation
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or excessive force. Even if the conduct had been retaliatory or excessive,
the violation wouldn’t have been clearly established.
After pointing a gun, the trooper applied handcuffs, conducted a
patdown, and placed Mr. Hoskins in the patrol car. But Mr. Hoskins had
been acting angrily with his hands near or in his pockets. So the trooper
didn’t violate a clearly established right by taking protective measures
before searching the car.
Finally, Mr. Hoskins lacked a protected interest in a procedure that
would ensure the destruction of his DNA sample.
37