Petition for Writ of Certiorari — Joseph M. Hoskins, Petitioner v. Jared Withers, et al.

APPENDIX

TABLE OF CONTENTS

APPENDIX A:

Tenth Circuit Court of Appeals

Opinion (Feb. 20, 2024) .................. 1a

APPENDIX B:

District Court Memorandum

Decision and Order

(Aug. 18, 2022) .............................. 33a

APPENDIX C:

Tenth Circuit Court of Appeals

Order Denying Petition for

Rehearing and Rehearing

En Banc (June 3, 2024) ................ 59a

APPENDIX D:

42 U.S.C. § 1983 ............................ 60a

APPENDIX E:

Plaintiff’s Revised Amended

Complaint (Mar. 19, 2021) ........... 61a

APPENDIX A

[FILED: FEBRUARY 20, 2024]

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

______________________________

JOSEPH M. HOSKINS,

Plaintiff-Appellant,

No. 22-4081

v.

(D.C. No. 2:20-CV-00749HCN)

JARED WITHERS;

JESS L. ANDERSON,

(D. Utah)

Defendants-Appellees.

______________________________

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 Defendants-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 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

(1a)

2a

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 pointed a gun, handcuffed the driver,

Mr. Hoskins also claimed violation of the state constitution, but

these claims aren’t at issue.

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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.

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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 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

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clawed at the front passenger door and tried twice 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.

Trooper Withers arrested Mr. Hoskins, and jail

personnel collected Mr. Hoskins’s DNA. But no one

pressed charges, and authorities released Mr. Hoskins.

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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.

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

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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.

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,

In the complaint, Mr. Hoskins admitted that the lettering on the

license plate was partially obscured. Appellant’s App’x at 70.

2

8a

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.

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)

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(concluding that the presentation of a new argument

doesn’t allow us to deviate from a prior panel opinion).3

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

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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• 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 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. § 41-1a402 (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

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States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995)

(en banc).4

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, 355 (2015). But Trooper Withers

There we said that “[i]t is irrelevant, for purposes of Fourth

Amendment review, ‘whether the stop in question is sufficiently

ordinary or routine according to the general practice of the police

department or the particular officer making the stop.’” BoteroOspina, 71 F.3d at 787 (quoting United States v. Ferguson, 8 F.3d

385, 391 (6th Cir. 1993)).

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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.

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

In the complaint, Mr. Hoskins alleged that the dog sniff had taken

about a minute. Appellant’s App’x at 83 ¶ 51.

5

13a

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

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.

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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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

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.

15a

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.

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

16a

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.

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.

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

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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, 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

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)).

7

Mr. Hoskins doesn’t allege in the complaint that the trooper gave a

command for the dog to react.

8

18a

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 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

19a

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 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.

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).

9

20a

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 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, 1051–53 (10th Cir. 1994); Manzanares v. Higdon,

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).

10

21a

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 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

22a

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.

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

23a

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 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

Mr. Hoskins also alleged that he had been shoved. But he doesn’t

argue on appeal that the shoving constituted excessive force.

11

24a

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

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 the dismissal of this claim based on the absence of

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).

12

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).

13

25a

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 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.

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.

14

26a

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).

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

The trooper had seen Mr. Hoskins’s waistband, but had not done a

patdown. See note 10, above.

15

27a

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

• 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

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

16

28a

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.

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

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.

29a

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 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. § 53-10406(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.

17

This section has been renumbered § 53-10-406(1)(h) (2022).

30a

For this claim, Mr. Hoskins alleges the right to a

procedure that ensures the destruction of his DNA

sample. Granted, the Fourteenth 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 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.

31a

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 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.

32a

Finally, Mr. Hoskins lacked a protected interest in a

procedure that would ensure the destruction of his DNA

sample.

APPENDIX B

[FILED: AUGUST 18, 2022]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

JOSEPH M. HOSKINS,

Plaintiff,

Case No. 2:20-cv-749

v.

Howard C. Nielson,

Jr.

JARED WITHERS, and

JESS L. ANDERSON,

United States District

Judge

Defendants.

MEMORANDUM DECISION AND ORDER

Plaintiff Joseph Hoskins sues Utah Highway Patrol

Officer Jared Withers and Jess Anderson, Commissioner

of the Utah Department of Public Safety, alleging

violations of the First and Fourth Amendments as well as

the corresponding provisions in the Utah Constitution. He

also asserts a Fourteenth Amendment due process claim

on behalf of himself and a putative class of similarly

situated individuals. Officer Withers claims qualified

immunity and both Defendants move to dismiss all claims.

The court grants this motion.

I.

On November 13, 2018, Mr. Hoskins was driving

westbound on I-80 in Toole County, Utah. See Dkt. No. 17

¶¶ 8–9.1 After observing Mr. Hoskins’ vehicle, Officer

Withers initiated a traffic stop. See id. ¶¶ 10–13.

These facts are taken from the Amended Complaint, see Dkt. No.

17, as well as Officer Withers’ body camera footage, see Dkt. No. 12,

which is cited in the Amended Complaint, see Dkt. No. 17 at ¶ 20.

1

(33a)

34a

Immediately after pulling Mr. Hoskins over, Officer

Withers called the plate number into dispatch, stating “I

believe it’s AZ39390 Illinois.” Id. ¶ 16. Officer Withers

then exited the vehicle, approached Mr. Hoskins, and

informed him that he had been stopped because his

license plate frame obscured the name of the issuing state.

See id. ¶ 19–20. Mr. Hoskins produced his driver’s license

and exited the vehicle to examine the plate with Officer

Withers. See id. ¶¶ 20–23. Pictures taken during the stop

and later included in the complaint show that “Illinois” is

almost completely obscured by the frame with only the

very bottom of each letter visible. See id. at 8. Mr. Hoskins

explained that he had received the car like this from the

dealer. See id. ¶ 33. Officer Withers commented that it

was “[n]ot a huge deal” and asked for Mr. Hoskins’

registration and insurance information. Id. Mr. Hoskins

provided the registration and began looking for his

insurance information on his phone. See id. ¶¶ 33, 37–38.

While Mr. Hoskins was looking for this information,

Officer Withers asked Mr. Hoskins where he was headed

and what his plans were; Mr. Hoskins responded that he

was headed to Reno to gamble. See id. ¶¶ 37–38. With Mr.

Hoskins still unable to find the insurance information,

Officer Withers asked Mr. Hoskins to sit with him in the

patrol car while Mr. Hoskins looked for the insurance

information. See id. ¶ 38.

On their way to the patrol car, Officer Withers asked

Mr. Hoskins if he was armed and if he could lift his shirt

and show his waist band. See id. ¶ 40. Mr. Hoskins stated

that he was not armed and complied with this request. See

id. ¶ 41; Dkt. No. 12 at 2:34:15–21. Before entering the

vehicle, Officer Withers commented to his body camera

that Mr. Hoskins “was shaking really bad, breathing

heavy.” Dkt. No. 12 at 2:34:20. The two then sat in the

front seats of the patrol car. See Dkt. No. 17 ¶ 42.

35a

Officer Withers began entering Mr. Hoskins’

information into his computer to prepare a citation and,

while he was doing this, asked Mr. Hoskins more

questions relating to his employment status and travel

plans. See id. ¶¶ 43–45. Officer Withers then called Mr.

Hoskins’ information into dispatch and asked that a

driver’s license and warrant check be completed. See id. ¶

46. While waiting for dispatch to complete the check,

Officer Withers then instructed Mr. Hoskins to “hang

tight” and proceeded to retrieve his police canine. Id. ¶¶

47, 49.

Officer Withers took the dog to Mr. Hoskins’ car and

made “three passes of the driver’s side, five passes of the

front side, two passes of the rear of the vehicle, and two

passes of the passenger side.” Id. ¶¶ 50–52. The dog sniff

lasted fewer than 90 seconds. See Dkt. No. 12 at 2:36:45–

2:38:10. During the sniff, the dog twice tried to enter the

vehicle through the passenger window. See Dkt. No. 17 ¶¶

53–54. After the first attempt, Officer Withers

commented to his body camera that “he’s just following an

odor right into the car.” Dkt. No. 12 at 2:37:50. When the

dog tried to enter a second time, Officer Withers stated:

“OK, I’m going to call that an indication, he keeps trying

to jump in the window.” Id. at 2:37:55. At this point,

dispatch had not yet responded with the results of the

license and warrant check.

Officer Withers then returned the dog to the car and

explained to Mr. Hoskins that the dog was trying to go

after a drug odor in the car and that he would now search

Mr. Hoskins’ vehicle. See Dkt. No. 17 ¶¶ 56, 61. Officer

Withers directed Mr. Hoskins to exit the vehicle, place his

cell phone on the hood of the patrol car, and stand near a

delineator post approximately 50 yards from Mr. Hoskins’

vehicle while Officer Withers conducted the search. See

id. ¶¶ 63–68; Dkt. No. 12 at 2:39:26–46. Officer Withers

36a

walked Mr. Hoskins to the post and then returned to the

patrol car to retrieve his gloves. See Dkt. No. 17 ¶¶ 69–70,

72. At this point, dispatch responded that Mr. Hoskins

had no outstanding warrants and possessed a valid

driver’s license. See Dkt. No. 12 at 2:40:05.

Upon returning to Mr. Hoskins’ vehicle, Officer

Withers observed Mr. Hoskins using a second cell phone

with his back turned, hiding it from view. See Dkt. No. 17

¶ 74; Dkt. No. 12 at 2:40:40–2:41:02. He walked up to Mr.

Hoskins, grabbed the phone away from him, and pushed

Mr. Hoskins with his left hand, causing him to take a step

back. See Dkt. No. 12 at 2:41:00. The two then engaged in

a brief verbal altercation with Mr. Hoskins profanely

insulting both Officer Withers and his mother. See Dkt.

No. 17 ¶ 82. Officer Withers later told another officer

“Dude, I don’t like him much after he said what—about

my mom. You know? I mean, that was like—dude, that

was below the belt there.” Id. ¶ 86.

Mr. Hoskins was still talking as Officer Withers

began to walk away. After about six steps, Officer Withers

stopped and turned. See id. ¶¶ 84–85. Mr. Hoskins was

standing with his left hand at his side, partially obscured

by the angle and his jacket. See Dkt. No. 12 at 2:41:25.

Officer Withers immediately drew his firearm and pointed

it at Mr. Hoskins, shouting “get your hand out of your

pocket.” Id. at 2:41:26. He ordered Mr. Hoskins to turn

around and place his hands on the back of his head. See

Dkt. No. 17 ¶ 92. Mr. Hoskins immediately complied, and

Officer Withers returned his firearm to its holster. See

Dkt. No. 12 at 2:41:30–35. Officer Withers’ weapon was

drawn for approximately eight seconds. See id. at 2:41:26–

33. Officer Withers then called for backup, handcuffed

Mr. Hoskins, and escorted Mr. Hoskins back to the patrol

car where he stayed for the remainder of the stop. See

Dkt. No. 17 ¶¶ 93–94, 97–100, 112. Officer Withers

37a

specifically told Mr. Hoskins, “you aren’t under arrest,

you are being detained.” Dkt. No. 12 at 2:41:52.

Officer Withers and a second officer who had now

arrived proceeded to search Mr. Hoskins’ car. See Dkt.

No. 17 ¶¶ 110–11. After an extended search, the officers

discovered two packages of cash secured in the lining of

the rear seats between the trunk compartment and the

seat frame. See id. ¶¶ 111, 113–14. The officers had to use

tools to dissemble the rear seat to retrieve these

packages. See Dkt. No. 12 at 3:26:30–3:28:30. Each

package was vacuumed sealed and then incased in a

second layer of plastic wrapping. See id. at 3:28:45–

3:29:00. The packages contained a total of $89,000. See

Dkt. No. 17 ¶ 126. Another $1,350 was later found on Mr.

Hoskins’ person. See id.

Officer Withers then informed Mr. Hoskins that he

was “being detained for the large amount of money that’s

in the car.”2 Id. ¶ 116. Mr. Hoskins was cited for the

equipment violation, money laundering, and criminal

conspiracy. See id. ¶ 124. Mr. Hoskins was booked into the

Toole County jail that night, his car was impounded, and

the cash was seized. See id. ¶¶ 122–23, 127. Pursuant to

Utah Code § 53-10-404.5, Mr. Hoskins’ DNA was collected

at the jail. See id. ¶ 125. He was subsequently released,

and no criminal charges were ultimately brought. See id.

¶¶ 129, 132. Under Utah law, the Bureau of Forensic

Services was accordingly required to destroy his DNA

specimen because “criminal charges [had] not been filed

It appears that Officer Withers misspoke and actually meant that

Mr. Hoskins was being “arrested” for the money found in the car

given that Mr. Hoskins was already detained, and that Officer

Withers proceeded to issue the citation and book him after making

this statement.

2

38a

within 90 days after booking for an alleged offense.” Id. ¶

133 (quoting Utah Code § 53-10-406(1)(i) (2018)).

Mr. Hoskins filed this suit on October 28, 2020.

II.

To survive a motion to dismiss, “a complaint must

contain sufficient factual matter, accepted as true, to state

a claim for relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). A plaintiff

cannot satisfy this standard by offering “labels and

conclusions,” “a formulaic recitation of the elements of a

cause of action,” or “naked assertions devoid of further

factual enhancement.” Id. (cleaned up). Nor will the court

“accept as true a legal conclusion”—even if its “couched

as a factual allegation.” Id. (cleaned up). Rather, a plaintiff

must “plead factual content that allows the court to draw

the reasonable inference that the defendant is liable for

the misconduct alleged.” Id. (cleaned up).

Although “[t]he usual rule is that a court should

consider no evidence beyond the pleadings on a Rule

12(b)(6) motion to dismiss,” Waller v. City & Cnty. of

Denver, 932 F.3d 1277, 1282 (10th Cir. 2019) (cleaned up),

a “district court may consider documents referred to in

the complaint if the documents are central to the

plaintiff’s claim and the parties do not dispute the

documents’ authenticity,” Jacobsen v. Deseret Book Co.,

287 F.3d 936, 941 (10th Cir. 2002). This can include videos.

See Montoya v. Vigil, 898 F.3d 1056, 1060 n.2 (10th Cir.

2018) (considering an interrogation video attached to the

complaint in connection with a motion to dismiss). Here,

the bodycam video is referred to in the complaint, see Dkt

No. 17 ¶¶ 52, 109, 111, and central to Mr. Hoskins’ claims

and the parties do not dispute its authenticity. The court

will accordingly consider this video as well as the

39a

allegations set forth in the Amended Complaint in

resolving this motion.

III.

The court first addresses Mr. Hoskins’ claims that

Officer Withers violated his Fourth Amendment rights

and retaliated against him for his speech in violation of the

First Amendment.

A.

Officer Withers invokes qualified immunity with

respect to Mr. Hoskins’ federal claims. Qualified

immunity “shields public officials from damages actions

unless their conduct was unreasonable in light of clearly

established law.” Estate of Booker v. Gomez, 745 F.3d 405,

411 (10th Cir. 2014) (cleaned up). To overcome qualified

immunity, “the plaintiff carries a two-part burden to

show: (1) that the defendant’s actions violated a federal

constitutional or statutory right, and, if so, (2) that the

right was clearly established at the time of the defendant’s

unlawful conduct.” Id. (quotation omitted). “When, as

here, qualified immunity is raised in a motion to dismiss,

the court accepts the well-pleaded facts contained in the

complaint as true and construes them in the light most

favorable to the plaintiff.” Mahdi v. Salt Lake City Police

Dep’t, 550 F. Supp. 3d 1193, 1198 (D. Utah 2021). Mr.

Hoskins “must accordingly allege facts that support a

reasonable inference that [Officer Withers] violated” Mr.

Hoskins’ constitutional rights, “and he must also establish

that” these rights were “clearly established when the

alleged unconstitutional conduct occurred.” Id.

The doctrine protects “all but the plainly incompetent

or those who knowingly violate the law.” Ashcroft v. alKidd, 563 U.S. 731, 743 (2011) (cleaned up). A Government

official’s conduct violates clearly established law when, at

40a

the time of the challenged conduct, “[t]he contours of [a]

right [are] sufficiently clear” that every “reasonable

official would [have understood] that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635,

640, (1987). There need not be “a case directly on point,”

but “existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft, 563

U.S. at 741. “[T]he legal principle [must] clearly prohibit

the officer’s conduct in the particular circumstances

before him.” Dist. of Columbia v. Wesby, 138 S. Ct. 577,

590 (2018). The plaintiff faces a “heavy burden” to

overcome qualified immunity. Carabajal v. City of

Cheyenne, 847 F.3d 1203, 1208 (10th Cir. 2017).

B.

Mr. Hoskins alleges that Officer Withers violated the

Fourth Amendment at each step of the encounter. The

court evaluates encounters such as the one at issue here

“in a step-by-step manner because what may begin as a

routine traffic stop will often escalate into probable cause

for a search or a search pursuant to a consensual

encounter.” United States v. Lee, 73 F.3d 1034, 1038 (10th

Cir. 1996), overruled on other grounds by United States

v. Holt, 264 F.3d 1215 (10th Cir. 2001). The court must

“examine each stage of the encounter to ensure that the

government had the required amount of reasonable

suspicion, probable cause, or consent to support” the

challenged police conduct. Id.

1.

The court begins with Officer Withers’ initial stop of

Mr. Hoskins. “A traffic stop is a seizure within the

meaning of the Fourth Amendment.” United States v.

Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995) (en banc).

“[A] traffic stop is valid under the Fourth Amendment if

the stop is based on an observed traffic violation or if the

41a

police officer has reasonable articulable suspicion that a

traffic or equipment violation has occurred or is

occurring.” Id. at 787. The “sole inquiry is whether this

particular officer had reasonable suspicion that this

particular motorist violated ‘any one of the multitude of

applicable traffic and equipment regulations’ of the

jurisdiction.” Id. (quoting Delaware v. Prouse, 440 U.S.

648, 661 (1979)).

After pulling Mr. Hoskins over, Officer Withers

explained that Mr. Hoskins had been stopped because the

frame of his license plate holder obscured the name of the

issuing State. And Officer Withers ultimately issued Mr.

Hoskins a citation for violating Utah Code § 41-1a404(3)(b)(ii). See Dkt. No. 17 at 14. That statute requires

that a vehicle’s “license plate shall at all times be . . .

maintained . . . in a condition to be clearly legible.” Utah

Code § 41-1a-404(3)(b)(ii). A license plate is required to

have “(a) the registration number assigned to the vehicle

for which it was issued; (b) the name of the state; and (c) .

. . a registration decal showing the date of expiration.”

Utah Code § 41-1a-402(1).

Mr. Hoskins contends the traffic stop was invalid for

several reasons. He first argues that the statute for which

he was stopped and given a citation does not apply to outof-state vehicles. But this argument runs headlong into

Tenth Circuit precedent. In United States v. Eckhart, the

defendants argued that “Utah police officers may not

enforce Utah license plate statutes on cars licensed in

California.” 569 F.3d 1263, 1270 (10th Cir. 2009). The

court rejected this argument, holding that the traffic stop

challenged there was valid because the officer “observed

a violation of Utah law before he made the stop.” Id. at

1271 (citing Utah Code § 41-1a-404(3)(b)(ii)). The court

further held that applying this law to an out-of-state

driver did not violate the Interstate Commerce Clause

42a

because “Utah does not treat intra-and interstate

travelers differently [and] Utah’s requirement that

license plates be clearly visible and legible does not place

a barrier on interstate movement as it is not unique to

Utah and does not contradict the laws of other states.” Id.

at 1272. Mr. Hoskins does not acknowledge Eckhart or

offer any explanation why it does not control.3

Next, Mr. Hoskins argues that even if Section 404

does apply to out-of-state vehicles, it only requires that

the numbers and letters of the vehicle’s license plate

number be legible—not the name of the issuing State.

This argument cannot be reconciled with the text of the

relevant statutes. Section 402 clearly requires that license

plates display three things: the license plate number, the

name of the State, and a registration decal. Section 404

then requires the license plate to be “clearly legible.”

Read plainly, this statute mandates that all three required

components of the license plate be “clearly legible.”

To be sure, Section 403 states that “[l]icense plates

and the required letters and numerals on them, except the

To be sure, the defendants in Eckhart did not explicitly argue, as

Mr. Hoskins does here, that the language of Section 404 applies by its

terms only to Utah license plates. But the court rejects this argument.

First, while Section 41-1a-202 expressly exempts out-of-state vehicles

from registration requirements, see Utah Code § 41-1a-202(2)(a)

(2018), this statute says nothing about license plate requirements.

And Section 404 simply states that “License plates issued for a vehicle

other than a motorcycle, trailer, or semitrailer shall be attached to

the vehicle, one in the front and the other in the rear.” Utah Code §

41-1a-404(1). It does not limit application to plates issued “by the

State of Utah.” This is consistent with the laws of other states. While

discussing an analogous Oklahoma law, the Tenth Circuit observed

that “every state has some statute prohibiting the obstruction of

license plates,” but “none has interpreted its statutory scheme to

allow out-of-state cars to be driven with obscured license plates.”

United States v. DeGasso, 369 F.3d 1139, 1148 (10th Cir. 2004).

3

43a

decals and the slogan, shall be of sufficient size to be

plainly readable from a distance of 100 feet during

daylight.” But Section 404 contains no similar limitation.

Given that Section 403 demonstrates that the Utah

Legislature knew how to limit laws so that they apply to

only some of the required elements of a license plate, the

fact that the legislature chose not to do so in Section 404

strongly implies that all three things that must be

displayed on a license plate must be “clearly legible.”

Finally, Hoskins argues that because Section 404(5)

exempts license plates from the legibility requirement

when the car has a trailer hitch; wheelchair lift; trailer; a

bicycle, ski, or luggage rack; or a similar cargo carrying

device, it should be read to also exempt license plates with

frames.4 This argument, too, is foreclosed by the statutory

text. For although Section 404(5) creates other

exemptions, it says nothing about license plate frames.

And it is of course an established canon of statutory

interpretation that “[t]he expression of one thing implies

the exclusion of others.” ANTONIN SCALIA & BRYAN A.

GARNER, READING LAW: THE INTERPRETATION OF

Mr. Hoskins also argues that that the stop was unlawful because

Officer Withers “was selectively pursuing enforcement of a law that

is not enforced against other drivers with similar license plate

frames.” Dkt. No. 17 ¶ 32. This argument lacks merit. To be sure,

“[s]electivity in the enforcement of criminal laws is subject to

constitutional constraints.” Wayte v. United States, 470 U.S. 598, 608

(1985) (cleaned up). “In particular, the decision to prosecute may not

be deliberately based upon an unjustifiable standard such as race,

religion, or other arbitrary classification.” Id. (cleaned up). But

“[b]road discretion has been vested in executive branch officials to

determine when to prosecute, and by analogy, when to conduct a

traffic stop or initiate an arrest.” Marshall v. Columbia Lea Reg’l

Hosp., 345 F.3d 1157, 1167 (10th Cir. 2003) (citing United States v.

Armstrong, 517 U.S. 456, 464 (1996)). Because Mr. Hoskins does not

allege that he was impermissibly targeted based on an immutable

characteristic or other suspect classification, his argument fails.

4

44a

LEGAL TEXTS 107 (2012). Officer Withers’ initial stop was

thus justified because it was based on an “observed traffic

violation.” Botero-Ospina, 71 F.3d at 787. It did not violate

the Constitution.

2.

The court next addresses the dog sniff. Mr. Hoskins

argues that this violated his Fourth Amendment rights

because it prolonged the duration of the stop and Officer

Withers lacked independent reasonable suspicion to

detain Mr. Hoskins solely for purposes of conducting the

sniff. Specifically, Mr. Hoskins argues that “[Officer]

Withers did not diligently call in [Mr. Hoskins’]

information or complete the citation.” Dkt. No. 29 at 26.

As a general matter, a “canine sniff” does not

constitute a search within the meaning of the Fourth

Amendment. United States v. Place, 462 U.S. 696, 707

(1983). But “[a] seizure that is justified solely by the

interest in issuing a warning ticket to the driver can

become unlawful if it is prolonged beyond the time

reasonably required to complete that mission.” Illinois v.

Caballes, 543 U.S. 405, 407 (2005). “Authority for the

seizure thus ends when tasks tied to the traffic infraction

are—or reasonably should have been—completed.”

Rodriguez v. United States, 575 U.S. 348, 354 (2015).

“Beyond determining whether to issue a traffic ticket, an

officer’s mission includes ‘ordinary inquires’” such as

“checking the driver’s license, determining whether there

are outstanding warrants against the driver, and

inspecting the automobile’s registration and proof of

insurance.” Id. at 355 (quoting Caballes, 543 U.S. at 408).

A stop that is prolonged solely for the purpose of

conducting a dog sniff may thus violate the Fourth

Amendment. See Caballes, 543 U.S. at 407.

45a

The body camera footage demonstrates that Officer

Withers did not unreasonably prolong the traffic stop to

conduct a dog sniff. After showing Mr. Hoskins the reason

for the stop, Officer Withers asked him for his registration

and insurance. He proceeded to ask Mr. Hoskins several

questions while he was waiting for Mr. Hoskins to find his

insurance information. See Dkt. No. 12 at 2:33:00–2:34:00.5

When Mr. Hoskins still continued to look for this

information, Officer Withers asked Mr. Hoskins to join

him in the patrol car and then asked Mr. Hoskins several

more questions; he also began simultaneously entering

Mr. Hoskins’ information into his computer to prepare a

citation. See id. at 2:34:00–2:36:22. After he finished

entering Mr. Hoskins’ information, Officer Withers asked

dispatch to “run” Mr. Hoskins’ driver’s license. See id. at

2:36:22. Mr. Hoskins still had not provided his insurance

information at this time. See id. Officer Withers then

initiated the dog sniff. See id. at 2:36:48.

Officer Withers completed the dog sniff before

dispatch completed the driver’s license and warrant check

and reported the results to Officer Withers. See id. at

2:38:10. Indeed, dispatch did not do so until two minutes

after Officer Withers completed the sniff. See id. at

2:40:05. The dog sniff thus did not prolong the stop

because Officer Withers was still completing his

“mission,” which included checking for proof of insurance

and “determining whether there are outstanding

To be sure, Mr. Hoskins stated that he had an email with a policy

number and asked if that was sufficient. See Dkt. No. 12 at 2:35:28–

2:35:32. Officer Withers responded that he needed something

showing the date of coverage. See id. Mr. Hoskins never actually

provided the policy number or any information with the date of

coverage.

5

46a

warrants against the driver” at the time the sniff took

place. Rodriguez, 575 U.S. at 355.

Nor can Officer Withers be faulted for calling in the

warrant check instead of performing it on his computer or

for entering Mr. Hoskins’ information first and then

calling it in. In United States v. Mayville, the Tenth

Circuit explained that an officer’s decision to run “the

records check through dispatch” instead of relying

“exclusively on the information available on the computer

in his patrol car” does not violate the Fourth Amendment

because “the Fourth Amendment does not require

officers to use the least intrusive or most efficient means

conceivable to effectuate a traffic stop.” 955 F.3d 825, 832

(10th Cir. 2020) (citing United States v. Sharpe, 470 U.S.

675, 687 (1985). The dog sniff did not violate the Fourth

Amendment.6

This conclusion is consistent with the Tenth Circuit’s recent holding

in United States v. Frazier, 30 F.4th 1165 (10th Cir. 2022). There, the

court held that the arresting officer twice violated the Defendant’s

Fourth Amendment rights by extending the duration of the traffic

stop without reasonable suspicion. Specifically, the officer deviated

“from the traffic-based mission of the stop” by spending several

minutes trying to arrange a dog sniff and by later running the

Defendant’s license plate through a DEA database to track his past

movement. Id. at 1171, 1173, 1180. Here, by contrast, Officer Withers

did not prolong the stop by deviating from his mission. Though Mr.

Hoskins takes issue with the extent of questioning by Officer Withers,

those questions were asked while Officer Withers was entering Mr.

Hoskins’ information to prepare a citation and waiting for Mr.

Hoskins to provide his insurance information. To the extent there was

any delay, it appears to have been caused by Mr. Hoskins’ inability

promptly to produce his insurance information. Nor was Officer

Hoskins required to accept informal insurance information that did

not clearly meet the requirements for establishing proof of insurance

under Utah law or even provide the dates of coverage. See Utah Code

§§ 41-12a-303.2(2), 41-12a-402. And the dog sniff itself occurred only

6

47a

3.

The court next turns to the search of Mr. Hoskins’

vehicle. Mr. Hoskins contends that, under the facts

alleged in the complaint, Officer Withers’ dog never

alerted, and he thus lacked probable cause to search Mr.

Hoskins’ vehicle. See Dkt. No. 29 at 28. Were the court’s

analysis limited to Mr. Hoskins’ allegations, this

argument might be well taken. The body camera footage,

however, contradicts Mr. Hoskins’ allegations and

demonstrates that Officer Withers had probable cause to

search the vehicle.

The general rule is that “searches conducted outside

the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth

Amendment—subject only to a few specifically

established and well-delineated exceptions.” Katz v.

United States, 389 U.S. 347, 357 (1967) (footnote omitted).

One such exception relates to cars. A warrantless search

of an automobile is reasonable if there is probable cause

to believe it contains contraband. See United States v.

Ross, 456 U.S. 798, 809 (1982). “[A] positive dog alert gives

officers probable cause to search.” United States v.

Parada, 577 F.3d 1275, 1281 (10th Cir. 2009). The Tenth

Circuit has specifically declined to adopt “the stricter

rule” that the dog must “give a final indication before

probable cause is established.” Id. at 1282.

while Officer Withers was waiting for dispatch to provide the results

of the license and warrant check—a check that Officer Wither

requested promptly after entering Mr. Hoskins’ information into his

computer. Shaw v. Schulte, 36 F.4th 1006 (10th Cir. 2022), is also

inapposite. Unlike here, the officers in Shaw had completed all tasks

related to the original traffic stop and further prolonged the stop to

conduct a dog sniff without reasonable suspicion of additional criminal

activity. See id. at 1010–12, 1016, 1020.

48a

During the sniff, Officer Withers’ dog twice tried to

enter the vehicle through the passenger window. After

the first attempt, Officer Withers commented to his body

camera that “he’s just following an odor right into the

car.” Dkt. No. 12 at 2:37:50. Officer Withers then took the

dog away from the door towards the front of the car

before allowing it to return to the passenger door. The dog

again attempted to jump through the open window into

Mr. Hoskins’ car and Officer Withers stated to his body

camera: “OK, I’m going to call that an indication, he keeps

trying to jump in the window.” Dkt. No. 12 at 2:37:55.

In United States v. Forbes, the Tenth Circuit

recognized the difference between a dog “alert” and a dog

“indication.” 528 F.3d 1273, 1275 n.3 (10th Cir. 2008). “[A]

properly trained canine will ‘alert’ to the presence of

contraband when it first encounters a known odor by

changing its body posture and by increasing its

respiration. By contrast, the same dog will ‘indicate’ the

precise location of that contraband through some other

change in behavior, such as by staring, sitting, scratching,

biting, or barking.” Id.

Although Mr. Hoskins seeks to dismiss reliance on

the dog’s reaction as a “post-hoc attempt[] to justify the

search,” Dkt. No. 29 at 28, Officer Withers’

contemporaneous comments to his body camera make

clear that he immediately recognized the change in his

dog’s behavior. Indeed, he twice noted the dog’s effort to

enter the vehicle through the open window. The court

concludes that this behavior is sufficient for a reasonable

officer to believe that the dog had indicated and that he

therefore had probable cause to search the vehicle.7

While the Tenth Circuit has held that facilitating a dog’s entry into

a vehicle without probable cause invalidates a subsequent alert by the

7

49a

Even if Officer Withers incorrectly determined that

his dog alerted or indicated, the court concludes that his

mistake was reasonable and did not violate the Fourth

Amendment. The Court has long recognized that “the

Fourth Amendment allows for some mistakes on the part

of government officials,” and that “searches and seizures

based on mistakes of fact can be reasonable.” Heien v.

North Carolina, 574 U.S. 54, 60–61 (2014). The mistakes,

however, “must be those of reasonable men.” Brinegar v.

United States, 338 U.S. 160, 176 (1949). Here, Officer

Withers observed a dramatic change in his dog’s behavior

as the dog repeatedly attempted to enter Mr. Hoskins’

vehicle. The court concludes that it was reasonable for

Officer Withers, the dog’s handler, to interpret these

changes in behavior to be the result of the dog’s detecting

contraband. For all of these reasons, the court concludes

that the search did not violate the Fourth Amendment.

4.

The court next addresses Mr. Hoskins’ arrest. An

arrest is reasonable when “there is probable cause to

believe that a criminal offense has been or is being

committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004).

Probable cause “is not a high bar.” Kaley v. United States,

dog, see Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 880–81,

884–85 (10th Cir. 2014), it has found no constitutional violation when

“(1) the dog’s leap into the car was instinctual rather than

orchestrated and (2) the officers did not ask the driver to open the

point of entry, such as a hatchback or window, used by the dog,”

United States v. Vazquez, 555 F.3d 923, 930 (10th Cir. 2009). Here,

Officer Withers’ dog did not actually enter the vehicle and alert once

inside. Rather, Officer Withers recognized his dog’s indication as the

repeated attempts to enter the vehicle through the window, meaning

the alert occurred outside the vehicle. And a “drug dog sniff outside

a car during a lawful traffic stop is not a search.” Felders, 755 F.3d at

880.

50a

571 U.S. 320, 338 (2014). It requires “only a probability or

substantial chance of criminal activity, not an actual

showing of such activity.” Illinois v. Gates, 462 U.S. 213,

243 n.13 (1983). Whether probable cause exists “turn[s] on

the assessment of probabilities in particular factual

contexts,” id. at 232, and is “incapable of precise definition

or quantification into percentages because it deals with

probabilities and depends on the totality of the

circumstances,” Maryland v. Pringle, 540 U.S. 366, 371

(2003).

Mr. Hoskins argues that a “large amount of hidden

legal tender in itself is not probable cause for an arrest”

and “may only be considered evidence of an illicit

connection to drug trafficking (and therefore probable

cause for an arrest) when the currency is combined with

other persuasive evidence, such as drugs, drug

paraphernalia, or notebooks containing notations of large

drug transactions.” Dkt. No. 29 at 29 (citing United States

v. One Hundred Forty-Nine Thousand Four Hundred

Forty-Two & 43/100 Dollars ($149,442.43) in U.S.

Currency, 965 F.2d 868, 877 (10th Cir. 1992)). Here,

probable cause was not based solely on the discovery of

the currency, however. Rather, it was based on the

combination of the large amount of hidden cash and other

persuasive evidence.

At the time of the arrest, Officer Withers had

discovered two packages containing a total of nearly

$90,000 in cash, vacuum sealed and incased in two layers

of plastic wrapping, hidden within the rear seat of Mr.

Hoskins’ vehicle in a way that required the officers to use

tools to extract them. Officer Withers’ trained dog had

also alerted to drug odor within the vehicle and Officer

Withers had noticed that Mr. Hoskins “was shaking really

bad, breathing heavy.” Dkt. No. 12 at 2:34:20. Finally,

Officer Withers observed Mr. Hoskins using a second,

51a

undisclosed cellphone with his back turned, obscuring the

phone from view. The court concludes that these facts, in

combination, are sufficient to give rise to a “substantial

chance of criminal activity.” Gates, 462 U.S. at 243 n.13.

Officer Withers had probable cause to make the arrest.

Mr. Hoskins also contends that Officer Withers arrested

him before the discovery of the cash, and thus lacked

probable cause at the time of the arrest. See Dkt. No. 29

at 29–30. This argument is contradicted by the body

camera footage. Although Mr. Hoskins was handcuffed

and placed in Officer Withers’ patrol car during the

search, Officer Withers specifically told Mr. Hoskins that

“you aren’t under arrest, you are being detained.” Dkt.

No. 12 at 2:41:52.

To be sure, an officer must have a “reasonable and

articulable suspicion of potential danger” to justify

“temporary, protective detention.” United States v.

Maddox, 388 F.3d 1356, 1365, 1367 (10th Cir. 2004). But

so long as that standard is met, “[a] law enforcement

agent, faced with the possibility of danger, has a right to

take reasonable steps to protect himself.” United States

v. Merkley, 988 F.2d 1062, 1064 (10th Cir. 1993) (quotation

omitted).

That standard was met here. Prior to detaining Mr.

Hoskins, Officer Withers observed him using an

undisclosed second cellphone with his back turned

towards Officer Withers, hiding its use from view. After

Officer Withers took the phone, Mr. Hoskins became

verbally combative. Finally, while he was walking away,

Officer Withers observed Mr. Hoskins with his left hand

at his side, obscured by his jacket. The court concludes

that these circumstances are sufficient to establish a

“reasonable and articulable suspicion of potential

danger.” Maddox, 388 F.3d at 1367.

52a

For all of these reasons, Mr. Hoskins’ arrest did not

violate the Fourth Amendment.8

5.

Finally, the court addresses Mr. Hoskins’ claim of

excessive force. The Supreme Court has repeatedly held

that when such a claim arises from a police encounter, it

is governed by the Fourth Amendment’s prohibition of

“unreasonable seizures.” Tolan v. Cotton, 572 U.S. 650,

656 (2014). The Court has also long recognized “that the

right to make an arrest or investigatory stop necessarily

carries with it the right to use some degree of physical

coercion or threat thereof to effect it.” Graham v. Connor,

490 U.S. 386, 396 (1989).

“[T]he ultimate touchstone of the Fourth

Amendment is ‘reasonableness,’” Brigham City v. Stuart,

547 U.S. 398, 403 (2006) (citation omitted), and the

“reasonableness” of a particular use of force is assessed

under the balancing test established in Graham. Under

this test, the court must balance “the nature and quality

of the intrusion on the individual’s Fourth Amendment

interests against the countervailing governmental

interests at stake.” Graham, 490 U.S. at 396 (cleaned up).

This assessment must consider the totality of the

circumstances, including: “the severity of the crime at

issue, whether the suspect poses an immediate threat to

The fact that Mr. Hoskins’ physical location and circumstances did

not change between his detention during the search and his arrest

afterwards is irrelevant. Given the “reasonable and articulable

suspicion of potential danger” that a reasonable officer on the scene

would have perceived, Mr. Hoskin’s detention during the search was

permissible. And given that a reasonable officer would have had

probable cause to arrest Mr. Hoskins at the conclusion of the search,

Mr. Hoskins’ arrest and continued confinement in the patrol car after

the search was permissible.

8

53a

the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by

flight.” Id. The overarching inquiry is “whether the

officers’ actions are ‘objectively reasonable’ in light of the

facts and circumstances confronting them, without regard

to their underlying intent or motivation.” Id. at 397. The

Supreme Court has “also emphasized that ‘the

reasonableness of a particular use of force must be judged

from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.’” Hinkley

v. Salt Lake City Corp., 426 F. Supp. 3d 1207, 1215 (D.

Utah) (quoting Graham, 490 U.S. at 396) (cleaned up).

Mr. Hoskins’ argument that Officer Withers’ use of

force was unreasonable faces an immediate uphill battle,

for the Tenth Circuit has held that merely pointing a

“weapon at an adult who was suspected of a serious

crime,” without more, does not constitute excessive force

under the Fourth Amendment. Henry v. Storey, 658 F.3d

1235, 1239–41 (10th Cir. 2011). At the time Officer Withers

briefly pointed his firearm at Mr. Hoskins, he had

probable cause to search Mr. Hoskins’ vehicle for drugs;

the suspected “crime at issue” was thus serious. Graham,

490 U.S. at 396.

Officer Withers also had reason to believe that Mr.

Hoskins posed an immediate threat to his safety.

Moments before drawing his gun, Officer Withers had

observed Mr. Hoskins communicating on a second,

undisclosed phone in a manner that appeared intended to

hide its use from Officer Withers’ view. After Officer

Withers took the phone, Mr. Hoskins became verbally

hostile. See Dkt. No. 17 at ¶ 82. And then while walking

away, Officer Withers observed Mr. Hoskins with his left

hand at his side, obscured by his jacket. Although Mr.

Hoskins emphasizes that Officer Withers had already

performed a visual waistband inspection, Officer Withers

54a

had not patted Mr. Hoskins down or otherwise verified

that he was unarmed.

These considerations must be balanced against the

extent of force used by Officer Withers. Officer Withers

drew his gun and pointed it at Mr. Hoskins for

approximately eight seconds before holstering it and

handcuffing Mr. Hoskins. The court concludes that

Officer Withers’ brief and relatively minor use of force

was reasonable under the Fourth Amendment in light of

the serious crime a reasonable officer would have

suspected Mr. Hoskins of committing, Mr. Hoskins’

evasive behavior, the escalating nature of the encounter,

and the danger to his safety that a reasonable officer

would have perceived. See Graham, 490 U.S. at 396.

C.

Mr. Hoskins contends that Officer Withers also

violated Mr. Hoskin’s First Amendment rights by

pointing a gun at him “in retaliation for [Mr. Hoskins’]

expression of thoughts and opinions.” Dkt. No. 17 ¶ 160.

The court concludes that this claim fails as a matter of law.

“‘[T]he First Amendment prohibits government

officials from subjecting an individual to retaliatory

actions’ for engaging in protected speech.” Nieves v.

Bartlett, 139 S. Ct. 1715, 1722, (2019) (quoting Hartman

v. Moore, 547 U.S. 250, 256 (2006)). “If an official takes

adverse action against someone based on that forbidden

motive, and ‘non-retaliatory grounds are in fact

insufficient to provoke the adverse consequences,’ the

injured person may generally seek relief by bringing a

First Amendment claim.” Id. (quoting Hartman, 547 U.S.

at 256). Applying this rule, the Court held that probable

cause to execute an arrest forecloses a claim of a

retaliatory arrest because the non-retaliatory grounds

55a

are sufficient to “provoke the adverse consequences.”9 Id.

at 1722, 1724.

Although Nieves involved an arrest rather than the

use of force, the court concludes that the same rule applies

here. Because the court concludes that Officer Withers’

briefly pointing a gun at Mr. Hoskins was reasonable

under the Fourth Amendment, it follows that Officer

Withers had sufficient “non-retaliatory grounds . . . to

provoke” the challenged action and that Mr. Hoskins thus

cannot prevail on his First Amendment claim.

IV.

Finally, the court considers Mr. Hoskins’ claim

against Mr. Anderson. Mr. Hoskins alleges, on behalf of

himself and a putative class, that Mr. Anderson “violated

their rights under the Fourteenth Amendment to the U.S.

Constitution . . . by depriving them of a protected

property interest in their DNA (including any profiles or

other data derived therefrom) without due process of

law.” Dkt. No. 17 ¶ 165. He further contends that the

Fourteenth Amendment’s Due Process Clause secures a

right to “the confirmed destruction of their DNA once

Defendants no longer had any valid interest in possessing

it under Utah’s DNA collection statutes (Utah Code § 5310-401, et seq. [(2018)]).” Id. ¶ 166.

The Due Process Clause states that “No State shall .

. . deprive any person of life, liberty, or property, without

due process of law.” U.S. CONST. amend. XIV, § 1. “An

alleged violation of the procedural due process required

by this clause prompts a two-step inquiry: (1) whether the

This bright line rule also defeats any First Amendment retaliation

claim that Mr. Hoskins might assert based on his arrest given that

Officer Withers had probable cause to make that arrest, as discussed

above.

9

56a

plaintiff has shown the deprivation of an interest in ‘life,

liberty, or property’ and (2) whether the procedures

followed by the government in depriving the plaintiff of

that interest comported with ‘due process of law.’” Elliott

v. Martinez, 675 F.3d 1241, 1244 (10th Cir. 2012) (quoting

Ingraham v. Wright, 430 U.S. 651, 673 (1977)). “A

protected interest in liberty or property may have its

source in either federal or state law.” Id.

Mr. Hoskins first asserts that he has a protected

interest in his DNA generally under the Constitution.

This argument is unavailing. Mr. Hoskins alleges a

procedural not substantive due process violation—

meaning that any protected interest can be deprived

pursuant to adequate procedure.10 Here, Mr. Hoskins’

DNA was taken pursuant to a Utah law of general

applicability. See Utah Code § 53-10-404.5(1)(a) (“When a

sheriff books a person for any offense under Subsections

53-10-403(1)(c) and (d), the sheriff shall obtain a DNA

specimen from the person upon booking of the person at

the county jail.”). When, as here, “‘the legislature passes

a law which affects a general class of persons, those

persons have all received procedural due process—the

The court would have no difficulty dismissing any substantive due

process claim based on the collection of Mr. Hoskins’ DNA. The

Supreme Court has squarely held that collecting a DNA sample

without a warrant does not violate the Fourth Amendment in “the

context of a valid arrest supported by probable cause.” Maryland v.

King, 569 U.S. 435, 465 (2013). It has also held that when “the Fourth

Amendment provides an explicit textual source of constitutional

protection” against the challenged governmental action, the claim

must be analyzed under “that Amendment” and “not the more

generalized notion of ‘substantive due process.’” Graham, 490 U.S. at

395. Even if Mr. Hoskins could assert a substantive due process claim

here, moreover, the court believes that the reasoning underlying the

Supreme Court’s holding in King would also foreclose any

substantive due process challenge.

10

57a

legislative process.’” Oklahoma Educ. Assoc. v. Alcoholic

Beverage Laws Enf’t Comm’n, 889 F.2d 929, 936 (10th

Cir. 1989) (quoting R. ROTUNDA, J. NOVAK, & J. YOUNG,

TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND

PROCEDURE, § 17.8 at 251 (1986)). Thus, even assuming

Mr. Hoskins has a protected interest in his DNA that was

taken from him, he has received all of the process that was

due. Mr. Hoskins next argues that he has a state created

interest in the destruction of his DNA. This argument is

equally unpersuasive. Utah Code § 53-10-406(1)(i)

requires the Bureau of Forensic Services to “destroy a

DNA specimen obtained under this part if criminal

charges have not been filed within 90 days after booking

for an alleged offense under Subsection 53-10-403(2)(c).”

While this may be sufficient to create a protected interest

in the destruction of his DNA, Mr. Hoskins does not allege

that the Bureau failed to destroy his sample. Rather, he

argues that “there is no administrative mechanism by

which [Mr. Hoskins] may petition the Bureau as an

agency of the Department of Public Safety to ensure that

his DNA specimen has been destroyed.” Dkt. No. 17 ¶ 139.

In essence, Mr. Hoskins argues that his procedural due

process rights have been violated, not by Bureau’s failure

to destroy his DNA, but by the Bureau’s failure to create

procedures that would allow Mr. Hoskins to confirm the

destruction of his DNA.

The court concludes that this claim is not cognizable

under the Due Process Clause of the Fourteenth

Amendment. As the Tenth Circuit has explained,

“protected interests are substantive rights, not rights to

procedure.” Elliott, 675 F.3d at 1245. It follows that “an

entitlement to nothing but procedure cannot be the basis

for a liberty or property interest.” Stein v. Disciplinary

Bd. of Sup. Ct. of N.M., 520 F.3d 1183, 1192 (10th Cir.

2008) (cleaned up).

58a

V.

“When all federal claims have been dismissed, the

court may, and usually should, decline to exercise

supplemental jurisdiction over any remaining state

claims.” Reyes v. N.A.R. Inc., 546 F. Supp 3d 1031, 1042

(D. Utah 2021) (cleaned up); see also 28 U.S.C § 1367(c)(3).

Because the court has determined that all of Mr. Hoskins’

federal claims must be dismissed, it will dismiss Mr.

Hoskins’ state law claims without prejudice.

***

For the foregoing reasons, Defendants’ motion to

dismiss is GRANTED IN PART. Plaintiff’s federal claims

are DISMISSED WITH PREJUDICE. Plaintiff’s statelaw claims are DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED.

Dated: August 18, 2022

/s/ Howard C. Nielson, Jr.

HOWARD C. NIELSON, JR.

UNITED STATES DISTRICT JUDGE

APPENDIX C

[FILED: JUNE 3, 2024]

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

______________________________

JOSEPH M. HOSKINS,

Plaintiff-Appellant,

v.

JARED WITHERS, et.

al.,

No. 22-4081

(D.C. No. 2:20-CV-00749HCN)

(D. Utah)

Defendants-Appellees.

______________________________

ORDER

______________________________

Before BACHARACH, PHILLIPS, and EID, Circuit

Judges.

____________________________

This matter is before the court on Appellant’s petition

for rehearing and rehearing en banc and Appellees’

response. Upon consideration, the petition for rehearing

is denied.

The petition for rehearing en banc was transmitted to

all of the judges of the court who are in regular active

service. As no member of the panel and no judge in

regular active service on the court requested that the

court be polled, that petition is also denied.

Entered for the Court

/s/ Christopher M. Wolpert

CHRISTOPHER M. WOLPERT, Clerk

(59a)

APPENDIX D

Section 1983 of Title 42, United States Code, provides:

Every person who, under color of any statute,

ordinance, regulation, custom , or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress,

except that in any action brought against a judicial

officer for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be granted

unless a declaratory decree was violated or

declaratory relief was unavailable. For the purposes

of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.

(60a)

APPENDIX E

[FILED: MARCH 19, 2021]

Karra J. Porter, #5223

Karra.Porter@chrisjen.com

J.D. Lauritzen, #14237

JD.Lauritzen@chrisjen.com

CHRISTENSEN & JENSEN, P.C.

257 East 200 South, Suite 1100

Salt Lake City, Utah 84111

Telephone: (801) 323-5000

Facsimile: (801) 355-3472

Attorneys for Plaintiff Joseph M. Hoskins

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, NORTHERN DIVISION

PLAINTIFF’S

REVISED AMENDED

COMPLAINT FOR

Plaintiffs, DAMAGES AND FOR

CLASS-WIDE

v.

DECLARATORY AND

JARED WITHERS, in

INJUNCTIVE RELIEF

his individual capacity;

CLASS ACTION AND

and JESS L.

JURY DEMAND

ANDERSON, Utah

Civil No. 2:20-cv-00749Department of Public

HCN

Safety Commissioner, in

his official capacity,

District Judge Howard C.

Defendants. Nielson, Jr.

Magistrate Judge Cecilia

M. Romero

JOSEPH M. HOSKINS,

an individual, and all

others similarly situated,

(61a)

62a

Plaintiff Joseph M. Hoskins, by and through

undersigned counsel of record, hereby complains against

Defendants Jared Withers and Commissioner Jess L.

Anderson as alleged below.

PRELIMINARY STATEMENT AND

INTRODUCTION

On November 13, 2018, Joseph Hoskins was

peaceably driving his vehicle along I-80 in Tooele County,

Utah. Joe was from Peoria, Illinois, and his car was

registered in that state.

Joe was obeying all traffic laws as he drove along I80. Defendant Withers wanted to pull Joe over because he

was single male, traveling alone toward Nevada, with an

out-of-state license plate; consequently, Withers

speculated that Joe might have drugs or cash on him that

could be seized. Because Withers had no legitimate traffic

offense to use as an excuse for pulling Joe over, he

fabricated a basis for a stop.

Withers pulled Joe over on the pretext of an

“equipment violation.” Citing Utah Code § 41-1a404(3)(B)(ii), Withers claimed that Joe’s Illinois license

plate did not comply with a Utah statute governing Utah

license plates. The license plate on Joe’s vehicle had a

frame showing the name of an automobile dealership. The

frame (partially) obscured the word “Illinois” at the top of

the license plate. As shown below, a high percentage of

persons driving automobiles in Utah have similar license

plate frames that obscure part of the state name – for

example, persons driving vehicles with Ken Garff, Larry

Miller Autogroup, Mark Miller, Tim Dahle, BYU,

University of Utah, and Utah Jazz frames. (See ¶ 31,

infra.)

63a

Withers knew that Joe’s license plate was not issued

in Utah and in fact was issued in Illinois, as evidenced by

the fact that he radioed in to dispatch that it was an Illinois

plate. Withers also knew, or any reasonable officer would

know, that Utah’s license plate requirements did not

apply to a vehicle registered in another state. Knowing

that he lacked probable cause, Defendant Withers

nonetheless pulled Joe over, questioned him, detained

him, let a drug-sniffing dog do significant damage to Joe’s

car, did significant damage himself in searching Joe’s

vehicle, arrested Joe, and confiscated money found in

Joe’s car. No drugs were found, and no criminal charges

were ever brought against Joe. The State of Utah’s efforts

to keep the found money anyway failed. But Withers’

actions forced Joe to hire a lawyer and incur other out-ofpocket costs and damages.

Plaintiff is seeking relief for Defendant’s violations of

his right to be free from unreasonable searches and

seizures, as guaranteed by the Fourth Amendment to the

United States Constitution as well as Article I, § 14 of the

Utah Constitution. Plaintiff also seeks relief for

Defendant’s violation of his rights under the First

Amendment to the U. S. Constitution and Article I,

Section 1 of the Utah Constitution, in that Defendant

Withers drew a weapon on Joe in response to Plaintiff’s

speech.

In the course of Joe’s booking at the Tooele County

jail, Tooele County took possession of a specimen of Joe’s

DNA pursuant to Utah Code § 53-10-404.5. Joe was never

criminally charged. As a result, Utah Code § 53-10406(1)(i) entitled Joe to have the DNA specimen and any

profile generated therefrom destroyed. However, Utah

law does not provide any mechanism for enforcing this

right.

64a

Utah’s DNA collection statutes (Utah Code § 53-10401, et seq.) do not provide a mechanism by which Joe, or

others similarly situated, may ensure destruction of their

DNA where no criminal charges are filed following an

arrest and booking into a county jail. This lack of a remedy

or other procedural mechanism to ensure the destruction

of a DNA specimen for those who have been booked on

alleged suspicion of a felony, but who are never charged

with a felony, is a violation of due process. Consequently,

Joe and class plaintiffs seek relief for the violation of their

right to due process under the Fourteenth Amendment to

the U.S. Constitution and Article I, Section 7 of the Utah

Constitution.

PLAINTIFF

1. Named Plaintiff Joseph M. Hoskins (“Joe” or

“Plaintiff”) is an adult citizen who, at all times relevant to

this complaint, resided in Peoria County, Illinois.

THE PLAINTIFF CLASS

2. The named Plaintiff brings this action on his own

behalf and as representative of the following class: a. All

individuals who have been booked in a county jail on

suspicion of a felony and had a specimen of their DNA

collected but against whom criminal charges were not

filed within 90 days after booking for an alleged offense

under Utah Code § 53-10-403(2)(c).

3. Class certification is appropriate under F.R.Civ. P.

23(a) and (b)(2) because the Defendants have acted or

refused to act on grounds that apply generally to the class

so that final injunctive relief or corresponding declaratory

relief is appropriate with respect to the class as a whole

and:

a. The members of the class are so numerous that

joinder of all persons is impracticable. Upon

65a

information and belief, there are at more than 100

individuals who are similarly situated to Joe. The

number of persons within the class is solely within the

possession of DPS or third parties and not available

to the public.

b. There are questions of fact or law common to the

class:

i. Common questions of fact include the current

policies, practices, and customs of the Utah

Department of Public Safety with regard to DNA

specimen collection, retention, and destruction for

individuals who have been arrested and booked but

who were (or are) never criminally charged,

including whether it is policy, practice, or custom

to:

- track the collection and retention of the

DNA specimen; and

- destroy a DNA specimen for a given

individual if criminal charges have not been

filed within 90 days after booking.

ii. Common questions of law include: whether

Defendants’ current policies, practices, and

customs regarding the collection, retention, and

destruction of DNA specimens from individuals

who were or are never criminally charged comply

with the federal and Utah constitutions and

whether the polices, practices, and customs create

a risk of future harm to the class; and related

issues.

c. The representative Plaintiff’s claim is typical of the

claims of the class.

d. The representative Plaintiff will fairly and

adequately represent the interests of the class. The

66a

named Plaintiff has manifested willingness and

persistence to assert claims on his own behalf and

that of his fellow class members and has retained

counsel experienced in class action and other complex

litigation.

DEFENDANTS

4. Defendant Jared Withers (“Withers”) is an

individual. At all times relevant to this complaint, Withers

was employed as a Trooper with Utah Highway Patrol

(“UHP”), an agency of the State of Utah. Defendant

Withers is sued in his individual capacity. At all times

relevant to this complaint, Defendant Withers was acting

within the scope of his employment with UHP.

5. At all times relevant to this complaint, Defendant

Jess L. Anderson was Commissioner of the Utah

Department of Public Safety, an agency of the State of

Utah. Defendant Anderson is sued in his official capacity.

JURISDICTION AND VENUE

6. This action raises questions under the Constitution

of the United States and 42 U.S.C. § 1983, and thus this

Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343.

Supplemental jurisdiction of Joe’s state law claims is

appropriate under 28 U.S.C. § 1367.

7. Venue is proper in this Court under 28 U.S.C. §§

1391(a) and 1391(b)(2), as the events or omissions alleged

occurred in Tooele County, Utah.

FACTUAL BACKGROUND

Initial Stop

8. On November 13, 2018 at approximately 2:30 p.m.,

Defendant Withers was driving in the left lane of

Interstate 80 (“I-80”) westbound near mile post 71, in

Toole County.

67a

9. At that same time, Joe was driving his brown

Toyota Avalon in the right lane of I-80 westbound near

mile post 71.

10. As reflected by Withers’ dashcam, Withers

proceeded forward in the left lane, gaining on the Avalon

as if to pass, and then slowed.

11. Joe was not violating any traffic laws at this time.

12. Withers’ dashcam reflects Withers remaining in

the left lane for at least 30 seconds before steering his

vehicle into the right lane behind Joe.

13. Withers activated his patrol vehicle lights to signal

Joe to pull over.

14. Within two seconds, Joe pulled his vehicle over.

15. It was obvious from its face that the license plate

on Joe’s car was not a Utah plate. Withers knew, and any

reasonable Utah law enforcement officer would have

known, that Joe’s license plate had not been issued by the

state of Utah.

16. While still seated in his vehicle and before

speaking with Joe, Withers called the plate into dispatch,

stating, “I believe it’s AZ39390 Illinois.” (See Withers

bodycam at 14:31:26).

17. The sole alleged basis for Withers pulling Joe

over, as stated in his subsequent report, was an alleged

“equipment violation.”

18. At the time Withers read and relayed the Avalon’s

license plate information, the vehicles were

approximately 32-33 feet apart.

19. Withers got out of his vehicle and approached

Joe’s front passenger window.

20. The following conversation occurred:

68a

Withers Hey, the reason I’m stopping you is your

plate frame you’ve got on your plate is completely

covering the state where your plate is from

Joe It is?

Withers Know what I mean? You wanna get out

and look at it and I’ll show you what I mean?

Joe Yeah, that’s fine. I just got this thing in

September.

(See Withers bodycam at 14:31:59)

21. Joe handed his driver’s license to Withers.

22. Defendant Withers took the license.

23. Joe exited his vehicle and walked with Withers to

the rear of the Avalon.

License Plate Holders

69a

Images 1 & 2: License Plate on Joe’s Avalon. Photos

taken by Withers at time of stop.

24. The license plate statute to which Withers was

referring is Utah Code 41-1a-404. In his citation of Joe,

Withers indicated he was specifically relying on Utah

Code 41-1a-404(3)(b)(ii).

25. Section 41-1a-404(3)(b)(ii) stated, in relevant part:

(3) Except as provided in Subsection (5), a license

plate shall at all times be:

(a) securely fastened:

(i) in a horizontal position to the vehicle for

which it is issued to prevent the plate from

swinging;

(ii) at a height of not less than 12 inches from

the ground, measuring from the bottom of the

plate; and

70a

and

(iii) in a place and position to be clearly visible;

(b) maintained:

(i) free from foreign materials; and

(ii) in a condition to be clearly legible. . . .

***

(6) A violation of this section is an infraction.

26. Utah Code § 41-1a-404 is a Utah statute applicable

to Utah license plates. It does not apply to vehicles

“registered in another state and owned by a nonresident

of the state[.]” See Utah Code § 41-1a-202.

27. Even if Utah’s license plate laws did not explicitly

exempt vehicles registered in other states, it would have

been obvious to any law enforcement officer that Utah law

could not govern the requirements of license plates issued

in other states.

28. Utah Code § 41-1a-403 specifies which portions of

a license plate must be legible. The code reads in relevant

part:

License plates and the required letters and numerals

on them, except the decals and the slogan, shall be of

sufficient size to be plainly readable from a distance

of 100 feet during daylight.

29. The Motor Vehicle Act does not define “letters

and numerals,” but other provisions of the Act use “letters

and numbers” to refer to a license plate’s registration

number, the unique combination of letters and numbers

assigned to a vehicle. See Utah Code §§ 41-1a-411 and 419(1)(b)(i)(D).

30. The letters and numerals on Joe’s plate (AZ

39390) were not obscured in any way.

71a

31. Upon information and belief, Utah Code §§ 41-1a404 and -403, with respect to license plate frames, are

rarely enforced. Facts supporting this belief include: a.

From a survey conducted by plaintiff’s investigator,

approximately one third of Utah vehicles have license

plate frames that obscure part or all of the name of the

state.

b. License plate frames that obscure part or all of the

name of the state are available for purchase from

Utah educational institutions, including State

institutions. These educational institutions include

Brigham Young University, University of Utah, Utah

State University, and Weber State University.

c. Many Utah automobile dealerships install license

plate frames that partially obscure the name of the

state. These dealerships include: Cougar Auto, Curtis

Auto, Cutrubus Layton, Ed Kenley, Grimm Auto,

Gus Paulos, Hamilton Auto, Henry Day Ford, Jerry

Seiner, Ken Garff Auto Group, Larry Miller Auto

Group, Mark Miller, Markosian Murdock, Menlove,

Mercedes-Benz of Farmington, Millennium Auto,

National Auto Plaza Nissan SLC, Prime Auto, PRM

Auto, Salt Lake Strong, South Town Mazda, Stephen

Wade St. George, Stockton Honda, Tim Dahle, Toole

Auto Mall, Tony Divino, Young Chevrolet, Velocity

Auto, and West Auto Sales.

72a

Images 3 & 4: Examples of commonly observed license

plate frames in Utah

73a

d. It is reasonable to infer that, if Sections 41-1a-404

and -403 were enforced, even sporadically, in the

manner claimed by Withers then automobile dealers,

institutes of higher education, and vehicle owners

would not use such plate frames and there would not

be such a prevalence of obscuring plate frames in

Utah.

32. Even if Utah Code Utah Code §§ 41-1a-404 and 403 do apply to out of state vehicles, the stop was not

proper because Defendant was selectively pursuing

enforcement of a law that is not enforced against other

drivers with similar license plate frames. Wayte v. United

States, 470 U.S. 598, 105 S. Ct. 1524, 84 L. Ed. 2d 547

(1985) (“Selectivity in the enforcement of criminal laws is

. . . subject to constitutional constraints.” Enforcement of

criminal laws may not be “based upon an unjustifiable

standard” or “arbitrary classification.”); Pleasant Grove

City v. Orvis, 2007 UT App 74, ¶¶ 15-16. Selective

enforcement occurs when a law is applied against some

individuals but not against others similarly situated.

Sanjour v. E.P.A., 56 F.3d 85, 92 n.9 (D.C. Cir. 1995);

Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019) (holding

that a showing of probable cause may be defeated when a

plaintiff presents objective evidence that he was treated

differently than others similarly situated).

33. The conversation on scene between Joe and

Withers continued:

Withers See what I mean [about the frame]?

Joe Yeah, it came from the dealership like that.

Withers They put that plate frame on there? OK.

Yeah, you know a lot of people don’t think about that,

but the way we look at it is, say this car is involved in

74a

some kind of crime or something and you can’t read

the plate, that causes a problem for us.

Joe Yeah, I wish I would’ve noticed it because I

would’ve known that was a problem.

Withers Not a huge deal. Do you got a registration

and insurance for this thing?

Joe Oh, yeah.

Withers You can hop back in. I’m not gonna be

needing you out here again.

(See Withers bodycam at 14:32:21)

34. Joe returned to sit in the driver’s seat of his

vehicle.

35. Withers returned to stand at the open passenger

window of Joe’s vehicle.

36. At this point, Withers’ investigation into the

alleged equipment violation had concluded. Withers had

all the information he needed for an equipment citation.

Continued detention and dog sniff

37. While Joe looked for his insurance information,

Withers questioned Joe.

38. The following conversation took place between

Joe and Withers:

Withers Where you headed to today?

Joe Uh, Reno.

Withers What’s in Reno?

Joe Gambling.

Withers Gambling in Reno.

Joe Yeah.

75a

Withers Do ya got insurance on it?

Joe Yeah, I do but it’s Esurance. Do you want me to

call my girlfriend?

Withers Like, do you have some kind of proof of

insurance, like on a phone or a card or—you gotta

carry some kind of proof of insurance in the car.

Joe It should be in an email.

Withers You say you have an email with it? You have

an electronic copy? Is that what you mean?

Joe Yeah.

Withers Will you turn the car off for me? I’d like you

to come back to my car with me. I’m gonna have a few

questions for you while you’re looking for that.

Joe Yeah, sure.

(See Withers bodycam at 14:33:06)

39. Joe turned off the engine, exited his vehicle, and

walked with Withers toward the patrol vehicle.

40. Before entering the patrol vehicle, Withers asked

Joe to lift his shirt and turn in a circle to show he had no

weapons in his waistband.

41. Joe complied with this request, lifting his shirt to

expose his bare stomach and turning in a circle to show

his bare back.

42. Withers climbed into the driver’s seat of the patrol

vehicle, and Joe climbed into the front passenger seat.

43. Once inside the patrol vehicle, Withers began

plugging Joe’s information into his computer.

44. If Withers had been filling out a citation for the

alleged equipment violation, the citation would have taken

only a few minutes to complete.

76a

Figure 1: Copy of Joe’s Citation

(Driver’s license number and date of birth redacted

for privacy)

45. Instead of completing the citation, Withers began

interrogating Joe about his travel plans and employment

status.

46. Withers then called Tooele County dispatch and

had it run a driver’s license and warrants check on Joe.

(See Jared Withers Utah Highway Patrol Crime Report,

Incident: U11024449, Report R14072685).

47. Withers told Joe to “hang tight” for a minute and

exited the patrol vehicle.

48. Joe did not believe he was free to leave. Nor would

it have been possible having been ordered to stay in the

patrol vehicle and Withers between Joe and his car.

77a

49. Withers opened the rear driver’s side door and got

out his K9, “Gus.”

50. Withers walked his dog up to Joe’s Avalon.

51. Withers had his dog conduct a purported sniff

search around the exterior of the Avalon for

approximately one minute.

52. Bodycam footage shows that, in total, the dog

made three passes of the driver’s side, five passes of the

front side, two passes of the rear of the vehicle, and two

passes of the passenger side, all without exhibiting

conduct consistent with a K9’s trained final response.

Among other things, the dog never exhibited a “sit,” the

trained response.

53. Although not exhibiting a trained final response,

the dog jumped and clawed at the outside of the vehicle’s

front passenger windshield and the passenger side

rearview mirror.

54. The dog also jumped up, clawing the front

passenger door, and attempted twice to enter the Avalon

through the open front passenger side window.

55. The dog caused significant damage to Joe’s

Avalon (“raked the crap out of” the car and “destroy[ing]

the door,” as Withers later described it).

56. Withers returned to the patrol vehicle and placed

the dog back in a kennel in the rear driver’s side area.

57. Later on during the stop, Withers took a cell

phone call from someone he identified as “Jimmy.”

Withers stated the following to Jimmy:

Basically, the dog tried to jump—I mean the dog

raked the crap out of the car twice trying to get

through the passenger’s window. He never gave a

‘sit,’ but there’s no doubt in my mind he’s trying to go

78a

after odor. And so after raking the hell out of the

guy’s paint twice, I was like, you know what? I’m just

pulling it off of it. I mean, he’s destroyed the door with

his back feet trying to get into the car. He did kind of

a half-ass indication after the first time when I

yanked him out of the window, and then—I could see

him hook odor, drop right back to the passenger

window and try to bail through again. I’m like, ‘ok, I’m

calling that.” (See Withers bodycam at 15:46:37)

58. Withers later wrote an incident report on his stop

and search of Joe’s vehicle.

59. Withers’ incident report does not state that Gus

alerted. Instead his report about the dog’s free-air sniff

stated:

His body tensed, his tail began wagging faster and

his sniffing became more intense. He quickly

worked back to the open window and truck

jumping through it. I pulled him out of the vehicle,

and I watched him work odor back to the open

window again trying to jump into the open window.

It was obvious to me as his handler that he was

following drug odor and was trying to get to the

source of the odor as he is trained. In my

experience with training and handling Gus, he will

never try to jump through an open window of a

vehicle unless he is trying to get to the source of

drug odor. (See Jared Withers Utah Highway

Patrol Crime Report, Incident: U11024449, Report

R14072685).

60. Joe was still sitting in the patrol vehicle.

61. Withers returned to the car, where he and Joe had

the following conversation:

79a

Joe Did you have to let him jump all over my car

like that?

Withers What that is, is he’s trying to go after a

drug odor, is what he’s doing.

Joe There are no drugs.

Withers Well, if there are no drugs, there’s

something in there with drug odor on it because

twice he tried to go into the car and I had to

physically keep him out.

Joe He’s probably doing false hits. He’s probably

doing false hits like all you K9 cops do, cause there

ain’t been nothing smoked in that car and there

ain’t been nothing done in that car.

Withers Well, I don’t know that and he can’t talk.

All I know is he’s a trained and certified narcotic

detector dog and he’s trying to go into your vehicle

to get the drug odor, so. I’m gonna be searching

your vehicle, ok. So I’m gonna have you go stand

up in front of the car.

(See Withers bodycam at 14:38:14)

62. At this point, Joe continued to believe he was not

free to leave.

Withers’ drawing of his weapon

63. At Withers’ instruction, Joe exited the patrol

vehicle.

64. Withers ordered Joe to place his cell phone on the

hood of the patrol vehicle. Withers did not tell Joe that he

could not make or receive a call on his cell phone. There

was no legal basis for preventing Joe from making or

receiving a call.

80a

65. Withers did not ask Joe about any other phones

or other property on his person. Withers had already

inspected Joe’s person for any weapons.

66. Joe put the cell phone on the hood of the patrol

vehicle as requested.

67. Withers pointed out a delineator post farther

down the road.

68. Withers directed Joe to stand by the post while

Withers searched Joe’s Avalon.

69. Withers walked Joe to the post.

70. Withers then left Joe at the post and walked alone,

past the Avalon, back to his patrol vehicle.

71. Joe did not believe he was free to leave. Nor would

it have been possible with Withers between Joe and his

vehicle, and where Withers had taken possession of Joe’s

cell phone.

72. While Withers was retrieving gloves from the

patrol vehicle, dispatch reported to Withers that Joe had

no warrants and that Joe’s driver’s license was valid. At

that point, Joe should have been permitted to leave. The

citation for an alleged equipment violation should have

been completed, and Withers had no probable cause to

continue detaining Joe or to search Joe’s car.

73. Withers walked back toward the Avalon but

continued walking past the Avalon to Joe.

74. As Withers approached Joe, he noticed that Joe

had another cell phone. Withers recognized and knew that

it was a phone in Joe’s hand.

75. Withers later told other UHP troopers that Joe

could not hear him coming due to the noise of traffic. (See

Withers bodycam at 16:02:31).

81a

76. Withers approached Joe on Joe’s left side and

demanded, “Let me see that!”

77. Withers grabbed the phone from Joe’s hand

without giving Joe time to react or voluntarily comply

with Withers’ demand.

78. Joe turned approximately ninety degrees to face

Defendant Withers.

79. With his left hand, Withers shoved Joe on the

right side of Joe’s chest causing Joe to take a step back.

The shove was wholly unnecessary and not prompted by

any legitimate law enforcement purpose or concern.

80. Up to this point, Joe had been compliant and

cooperative with every request and command Withers

had made of him.

81. After having his phone taken and being shoved for

no reason, Joe began to feel increasingly frustrated and

disrespected by Withers’ orders and actions, the

increasing delay in his trip, and the damage Gus had done

to his car that Joe had bought only two months prior.

82. Joe expressed these frustrations verbally.

Joe Fuck yourself, cock smoker!

Withers Hey, you want that dog [Gus] to come out?

Joe Oh, go ahead. I’d love to sue you.

Withers How many more phones you have?

Joe I’d love to sue you.

Withers How many more phones you have?

Joe Let the dog out. Let him bite me.

Withers How many more phones do you have?

Joe Fuck your mom!

82a

Withers Do you have more phones?

Joe No, I don’t. I don’t have time for your fucking

bullshit.

Withers OK. Stay there.

(See Withers bodycam at 14:41:06)

83. Withers started walking back to the Avalon with

his back turned to Joe, looking over his shoulder at Joe.

84. Withers had taken approximately six steps away

from Joe toward the Avalon when Joe shouted, “Fucking

suck a dick!”

85. Withers stopped walking.

86. In response to Joe’s declaration, Withers lost his

temper. He was already irritated by Joe’s comment about

Withers’ mother. In fact, Withers was so bothered that he

brought up the comment later to another officer, stating

“Dude, I don’t like him much after he said what—about

my mom. You know? I mean, that was like—dude, that

was below the belt there.” (See Withers bodycam at

15:37:50).

87. Withers drew his gun and aimed the gun at Joe’s

upper body.

88. Joe was startled to see Withers pointing a gun at

him.

89. Withers shouted at Joe, “Get your hand out of

your pocket!”

90. Joe’s hand was not in his pocket. He immediately

put his hands in the air.

91. Joe shouted, “I don’t have anything. My hands are

out of my pockets.”

83a

92. Withers ordered Joe to turn around and put his

hands on the back of his head. Joe complied.

93. Withers called dispatch for another unit.

94. Withers handcuffed Joe with his hands behind his

back. He told Joe, “You’re not under arrest; you’re being

detained.” This was a false statement.

95. Joe believed he was not free to leave, nor was it

physically possible for him to leave.

96. Withers’ use of force through drawing and

pointing his gun at Joe was excessive and unreasonable

for reasons that include:

a. Withers had earlier performed a visual weapons

inspection of Joe’s person, having Joe lift his shirt to

reveal the waistband of his pants and bare torso.

Withers was satisfied with the results of this search

such that Withers had seated Joe with him in the

front passenger seat of the police vehicle, and had

turned away from Joe on other occasions.

b. Joe had been fully compliant and cooperative with

every command Withers had given.

c. Withers escalated the interaction by approaching

Joe in a manner in which Joe could not hear him,

startling Joe, and snatching Joe’s phone without

warning.

d. Withers further escalated the interaction by

unnecessarily shoving Joe, without warning or

provocation, causing him to take a step backward.

e. Though Withers knew Joe was not armed and Joe

had been fully compliant, Withers drew his gun

without giving sufficient verbal warning to allow Joe

the opportunity to place his hands wherever Withers

wanted them.

84a

f. When Withers drew his gun, rather than aim in the

low-and-ready position, he aimed his gun directly at

Joe’s body.

97. After placing Joe in handcuffs, Withers walked

Joe back to the patrol vehicle.

98. Withers patted Joe down. Joe had no property or

weapons on him.

99. Withers placed Joe in the front passenger seat of

the patrol vehicle.

100. A short while later, Withers moved Joe to the

rear passenger-side seat.

101. The rear door had no interior door handles with

which to exit the vehicle.

102. Joe continued to believe that he was not free to

leave. Nor would it have been physically possible for him

to leave, with his hands cuffed behind his back and in the

back of a car with no interior door handles.

103. Withers had arrested Joe without a warrant and

without probable cause. United States v. Serna, 406 F.

Supp 3d 1084, 1104 (D.N.M. 2019), aff’d, 806 F. App’x 654

(10th Cir. 2020) (“An arrest is a seizure that is

characterized by highly intrusive or lengthy search or

detention . . . The general rule is that the use of firearms,

handcuffs, and other forceful techniques is sufficiently

intrusive to signal that a person has been placed under

arrest.”) (cleaned up); Martin v. Duffie, 463 F.2d 464,

468–69 (10th Cir. 1972) (noting after a plaintiff establishes

an invasion of his rights, a warrantless arrest is presumed

unconstitutional and the defendant officer bears the

burden of proving probable cause for the arrest).

Withers’ search of Joe’s vehicle

104. Withers left Joe in the patrol vehicle.

85a

105. Withers positioned Joe’s cell phones on the hood

of the patrol vehicle.

106. Withers walked to the front passenger door of

Joe’s Avalon, opened the door, and began to search Joe’s

vehicle.

107. UHP Trooper Jesse Williams (“Williams”)

arrived at the scene.

108. When Williams arrived, Withers relayed his

version of events to Williams. Withers falsely stated to

Williams that he drew his gun because Joe had attacked

him:

Deploy—deploy dog on it. Dog tries to go through the

window twice; twice I have to yank him back out of

the car. I tell him (Joe) to go up there. Starts giving

me a little bit of attitude. I think he’ll be fine; he’s way

up there. So I go get some gloves and I notice he’s up

there with his back turned and he’s doing this

(demonstrates shielding) and I’m like, oh crap, he’s

got another phone. So I walk up there and he’s got a

burner phone, but he’s hurried and texting on it. So I

go ‘yoink’ (demonstrates), I yank it out of his hand,

and the fight was on. I actually drew down on him; I

took the phone from him, he gets in my face, lunges

at me, and then he reaches in his pocket. I went to

gun, boom, and yeah.

(See Withers bodycam at 14:45:56) (parentheticals

added for clarity).

109. As reflected in Withers’ bodycam footage,

Withers’ statements about the confrontation with Joe

were false. Among other things: a. After Wither took the

phone, Joe did not step closer to Withers’ face; neither did

Joe lunge at Withers.

86a

b. After Withers took Joe’s phone, Withers pushed

Joe, causing Joe to step backward.

c. It was Withers who had approached Joe. Joe

turned to face Withers but remained approximately

an arm’s length from Withers’ person.

d. There was no “fight.”

e. Withers had taken approximately six steps away

from Joe when Withers turned around and drew his

gun, and he did so only after Joe yelled another

taunt at Withers.

f. When Withers drew his weapon on Joe, Withers

remained approximately six steps from Joe. Joe

remained in place and had not moved any closer to

Withers.

110. Williams joined Withers in searching Joe’s

Avalon.

111. According to Withers’ bodycam footage,

Withers’ and Williams’ search of the Avalon took 1 hour

and 15 minutes, from 2:45 p.m. until approximately 4:00

p.m.

112. Throughout the search, Joe was left with his

hands cuffed behind his back in the back seat of Withers’

vehicle.

113. During the search of the Avalon, Withers took

apart the rear seats as well as the lining between the

rear passenger compartment and the trunk.

114. The Troopers located money that Joe had

secured in his vehicle.

115. The money was United States legal tender.

87a

116. Withers advised Joe, “Ok, Joe. At this point

you’re being detained for the large amount of money

that’s in the car.”

117. There is no law prohibiting the carrying of legal

tender.

118. Withers and Williams found no drugs or drug

paraphernalia in Joe’s vehicle.

119. The Troopers took the cash.

120. Withers transported Joe to the UHP office in

Tooele County.

121. The Avalon was towed to the UHP office in

Tooele County.

122. Withers seized a total of $90,350.00 of Joe’s

money.

123. Joe was booked into the Tooele County jail at

8:28 p.m. on November 13, 2018.

124. On the citation, Withers wrote equipment

violation, money laundering, and criminal conspiracy. (See

Jared Withers Utah Highway Patrol Crime Report,

Incident: U11024449, Report R14072685).

125. Because of Withers’ reference to alleged felonies

on the citation, for which Withers had no probable cause,

a specimen of Joe’s DNA was collected by Tooele County

jail personnel.

126. UHP handed Joe an “Asset Seizure Notification

Form” stating that the following property had been

“seized for forfeiture and will be held pending further

order of the court or a final determination of forfeiture”:

“an unknow[n] amount of US currency. (subject said

89,000.) And $1350 in US currency from subjects’ pocket.”

88a

127. Joe’s Avalon was towed from the Tooele UHP

office to an impound lot.

128. The next day, on November 14, 2018, at 10:42

a.m., UHP deposited $90,350.00 of Joe’s money into Wells

Fargo Bank.

129. Joe was released from jail on November 14, 2018,

at approximately 3:09 p.m.

130. Because his car had been impounded, Joe had to

hire a taxi to take him to the impound lot where he could

retrieve his vehicle. Joe also had to pay to retrieve his

vehicle from impound.

Anderson’s failure to destroy Joe’s DNA

131. Under Utah Code § 53-10-404.5, because of

Withers’ representations on the citation, Tooele County

ordered Joe to provide a specimen of his DNA upon

booking Joe into jail.

132. Following his release from jail, no criminal

charges were ever brought against Joe.

133. Pursuant to Utah Code § 53-10-406(1)(i), the

Bureau of Forensic Services (as an agency within the

Department of Public Safety) “shall … destroy a DNA

specimen obtained under this part if criminal charges

have not been filed within 90 days after booking for an

alleged offense under Subsection 53-10-403(2)(c).”

134. Furthermore, under Utah Code § 53-10-406(1)(j),

the Bureau of Forensic Services shall “make rules in

accordance with Title 63G, Chapter 3, Utah

Administrative Rulemaking Act, establishing procedures

for obtaining, transmitting, and analyzing DNA

specimens and for storing and destroying DNA

specimens and other physical evidence and criminal

identification information obtained from the analysis.”

89a

135. Although obligated to destroy Joe’s DNA

specimen and otherwise make rules “establishing

procedures for obtaining, transmitting, and analyzing

DNA specimens and for storing and destroying DNA

specimens and other physical evidence and criminal

identification information obtained from the analysis,” the

Bureau of Forensic Services has failed to track or destroy

Joe’s DNA specimen or promulgate administrative rules

as required by the Legislature.

136. Upon information and belief, the Bureau of

Forensic Services has no system in place to track cases

where it is required to automatically destroy DNA

specimens pursuant to the statute.

137. Utah Code § 53-10-406(6) provides that:

A person whose DNA specimen has been obtained

under this part may, personally or through a legal

representative, submit to the court a motion for a

court order requiring the destruction of the person's

DNA specimen and any criminal identification record

created in connection with that specimen if: (a) (i) a

final judgment reverses the conviction, judgment, or

order that created an obligation to provide a DNA

specimen; or (ii) all charges arising from the same

criminal episode for which the DNA specimen was

obtained under Subsection 53-10-404.5(1)(a) have

been resolved by a final judgment of dismissal or

acquittal; and (b) the department determines that the

person has not otherwise become obligated to submit

a DNA specimen as a result of any separate

conviction or juvenile adjudication for any offense

listed in Subsection 53-10-403(2).

138. Despite the ability of an individual that has been

charged with and/or convicted of a felony to secure the

destruction of his or her DNA following a dismissal,

90a

acquittal, or reversal of conviction, Utah’s DNA collection

statutes do not provide a mechanism by which Joe, and

others similarly situated, may ensure the destruction of

their DNA where criminal charges are never filed.

139. Additionally, because the Bureau of Forensic

Services has not promulgated rules as required by Utah

Code § 53-10-406(1)(j), there is no administrative

mechanism by which Joe may petition the Bureau as an

agency of the Department of Public Safety to ensure that

his DNA specimen has been destroyed.

Civil forfeiture proceeding instituted against Joe

140. Despite the absence of any criminal charges, on

January 24, 2019, the State of Utah filed a civil action

against Joe asking that Joe’s money be “forfeited.”

141. Joe had to hire an attorney to defend against the

State’s attempt to keep his money.

142. On March 7, 2019, Joe’s attorney filed a motion

to exclude all evidence. The motion was based on the

grounds that, among other things, Withers had no lawful

basis to stop Joe.

143. The State did not file any response attempting to

justify Withers’ stop of Joe. Instead, on March 25, 2019,

the State voluntarily dropped its forfeiture lawsuit and

agreed to return Joe’s money to him.

144. Joe paid $18,070.00 to the forfeiture attorney,

equaling 20 percent of the amount of his money that had

been seized.

145. Joe also incurred other out-of-pocket expenses

and damages as a result of Withers’ unlawful actions,

including:

a. $55.00 to obtain records from Utah Highway Patrol

through a GRAMA request;

91a

b. $250.00 jury demand fee to the Third District

Court;

c. $25.00 wire transfer fee from Wells Fargo Bank;

d. Taxi fare to impound lot;

e. Money paid to impound lot;

f. Compensation to an attorney to confirm that Joe’s

DNA sample has been handled in the manner

required by statute when charges were not brought

within 90 days of booking, and to enforce all other

statutory requirements governing the collection of

Joe’s DNA upon booking;

g. The cost of a new paint job for his vehicle.

146. Joe has been required to hire seasoned civil

rights counsel in order to vindicate his constitutional

rights.

FIRST CLAIM FOR RELIEF

(Fourth Amendment and Utah Constitution Art. I, § 14,

Defendant Withers)

147. Plaintiff incorporates by reference all other

paragraphs of this Complaint as if fully set forth herein.

148. At all times relevant hereto, Plaintiff had a right

to be free of unreasonable stops, searches, seizures,

detentions, and excessive force under the Fourth

Amendment to the U.S. Constitution, and Article I, § 14

of the Utah Constitution.

149. At all times relevant hereto, and in performance

of the acts set forth herein, Defendant Withers acted

under color of state law.

150. At all times relevant hereto, and in performance

of the acts set forth herein, Defendant Withers actively

92a

and personally caused the violations of constitutional

rights alleged herein.

151. Defendant Withers’ conduct alleged herein—

including, an unreasonable stop, unlawful detainment,

unreasonable and excessive force, unlawful search, and

unlawful seizure—violated Plaintiff’s rights under the

Fourth Amendment to the U.S. Constitution as well as

Article I, § 14 of the Utah Constitution.

152. The unlawful misconduct of Defendant was

objectively unreasonable and undertaken intentionally

with willful indifference to Plaintiff’s constitutional rights.

153. Defendant Withers’ actions violated Plaintiff’s

clearly established constitutional rights of which

reasonable police officers are or should be aware.

154. Defendant’s unlawful actions caused Plaintiff to

incur damages and out of pocket expenses, which Plaintiff

is entitled to recover herein.

155. Plaintiff is further entitled to attorney fees and

expenses pursuant to 42 U.S.C. § 1988, pre-judgment

interest, and costs as allowable by federal law.

SECOND CLAIM FOR RELIEF

(First Amendment and Utah Constitution Art. I, §§ 1,

15, Defendant Withers)

156. Plaintiff incorporates by reference all other

paragraphs of this Complaint as if fully set forth herein.

157. At all times relevant hereto, Plaintiff had a right

to freely express his thoughts and opinions under the

First Amendment to the U.S. Constitution and Article I,

§§ 1 and 15 of the Utah Constitution.

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158. At all times relevant hereto, and in performance

of the acts set forth herein, Defendant Withers acted

under color of state law.

159. At all times relevant hereto, and in performance

of the acts set forth herein, Defendant Withers actively

and personally caused the violations of constitutional

rights alleged herein.

160. Defendant Withers’ conduct alleged herein—

including the use of unreasonable force in the form of

drawing his gun on Plaintiff in retaliation for Plaintiff’s

expression of thoughts and opinions—violated Plaintiff’s

rights under the First Amendment to the U.S.

Constitution and Article I, §§ 1 and 15 of the Utah

Constitution.

161. The unlawful misconduct of Defendant was

objectively unreasonable, based on pretext, and

undertaken intentionally with willful indifference to

Plaintiff’s constitutional rights.

162. Defendant Withers’ actions violated Plaintiff’s

clearly established constitutional rights of which

reasonable police officers are or should be aware.

163. Plaintiff is entitled to attorney fees and expenses

pursuant to 42 U.S.C. § 1988, pre-judgment interest, and

costs as allowable by federal law.

THIRD CLAIM FOR RELIEF

(Fourteenth Amendment and Utah Constitution Art. I,

§ 7, Commissioner Anderson)

164. All other paragraphs of this Complaint are realleged as if fully set forth herein.

165. Based on the facts set forth above, the named

Plaintiff and the class he represents assert that

Defendants violated their rights under the Fourteenth

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Amendment to the U.S. Constitution and Article I, § 7 of

the Utah Constitution by depriving them of a protected

property interest in their DNA (including any profiles or

other data derived therefrom) without due process of law.

166. At all times relevant hereto, Plaintiff and the

class he represents had a protected property interest in

their DNA under the Fourteenth Amendment to the U.S.

Constitution and Article I, § 7 of the Utah Constitution.

Plaintiffs further had a due process right in the confirmed

destruction of their DNA once Defendants no longer had

any valid interest in possessing it under Utah’s DNA

collection statutes (Utah Code § 53-10-401, et seq.).

167. Existing state law and/or administrative

remedies are inadequate to redress the deprivation of

Plaintiffs’ due process rights because there is no

procedural mechanism under Utah law for persons who

are booked into jail but not subsequently criminally

charged to ensure the destruction of their DNA.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully pray for the

following relief:

1. Certify the proposed class;

2. Declare that the events described above are a

violation of the United States Constitution and Utah

Constitution;

3. Enter an injunction directing Defendant

Commissioner Anderson to promulgate rules pursuant to

Utah Code § 53-10-406(1)(j) for establishing procedures

for obtaining, transmitting, and analyzing DNA

specimens and for storing and destroying DNA

specimens and other physical evidence and criminal

identification information obtained from the analysis and

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to comply with the statutory requirements under Utah

Code § 53-10-406(1)(i) regarding the destruction of DNA

specimens obtained from individuals who are booked

following an arrest but against whom criminal charges

have not been filed within 90 days for an alleged offense

under Utah Code § 53-10-403(2)(c);

4. Enter an injunction directing Defendant

Commissioner Anderson to destroy, and to confirm the

destruction of, all DNA specimens and profiles that were

required to be destroyed pursuant to Utah Code § 53-10406(1)(i) since the statute’s enactment;

5. A judgment awarding Plaintiff interest on

economic losses to the extent permitted by law, including

those set forth in paragraphs 144-146;

6. A judgment awarding compensation to Plaintiff for

his noneconomic loss, emotional distress and other

personal injury resulting from the violation of his

Constitutional rights;

7. A judgment awarding Plaintiff nominal damages

resulting from the violation of his Constitutional rights;

8. A judgment awarding Plaintiff his costs of suit,

including reasonable attorney fees and litigation

expenses, under 42 U.S.C. § 1988; and

9. A judgment awarding such other and further relief,

including equitable, declaratory, and injunctive relief, to

which Plaintiffs may be entitled.

DATED this 19th day of March, 2020.

CHRISTENSEN & JENSEN, P.C.

/s/ Karra J. Porter

Karra J. Porter

J.D. Lauritzen

Attorneys for Plaintiff Joseph M. Hoskins

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JURY TRIAL DEMANDED

Plaintiffs request a jury trial on all issues under the

Seventh Amendment of the United States Constitution