Abilio Hernandez v. Jason Boles

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0032p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ABILIO HERNANDEZ; LAZARO BETANCOURT; NORGE ┐
RODRIGUEZ; JOSE PEREZ, │
Plaintiffs-Appellants, │
> No. 18-6281
│
v. │
│
│
JASON BOLES; DONNIE CLARK, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Tennessee at Winchester.
No. 4:17-cv-00025—Travis R. McDonough, District Judge.
Argued: July 30, 2019
Decided and Filed: January 30, 2020
Before: SILER, STRANCH, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Drew Justice, JUSTICE LAW OFFICE, Murfreesboro, Tennessee, for Appellants.
Amanda S. Jordan, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville,
Tennessee, for Appellees. ON BRIEF: Drew Justice, JUSTICE LAW OFFICE, Murfreesboro,
Tennessee, for Appellants. Amanda S. Jordan, Peako A. Jenkins, OFFICE OF THE
TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees.
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. Tennessee Highway Patrol Trooper Jason Boles
pulled Abilio Hernandez over for driving 77 miles per hour in a 70-mph zone. Boles checked
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Hernandez and Lazaro Betancourt, the front seat passenger and owner of the car, for warrants.
When the warrant check came back negative, Boles asked for and was refused consent to search
the car. Trooper Donnie Clark then ran a search for the names of all four occupants of the car
through a second, more comprehensive database, which was pending when a K-9 unit arrived.
The dog sniffed the outside of the stopped car, alerting to the odor of drugs, but the dog did not
alert again when allowed into the car, and the K-9 handler stated that the dog “didn’t hit.” After
checking with their supervisor, the Troopers manually searched the car and found a number of
re-encoded gift cards and suspected amphetamines. The four occupants of the car (hereafter
called collectively the “Hernandez-Plaintiffs”) were arrested and held for months in pre-trial
incarceration before all charges were ultimately dropped.
The Hernandez-Plaintiffs filed suit under 42 U.S.C. § 1983, alleging that the Troopers
violated the Fourth Amendment by (a) illegally searching the car and (b) unreasonably extending
the car stop. The district court granted qualified immunity to the Troopers on the car search
based on caselaw existing at that time. At trial, the jury found that the car stop was not
impermissibly prolonged. The district court denied the Hernandez-Plaintiffs’ Rule 50 motion for
judgment as a matter of law. Based on the state of the caselaw at the time of the events in
question and the standards governing Rule 50, we AFFIRM.
I. BACKGROUND
A. The Events of December 17, 2015
Hernandez was driving a Yukon SUV in Coffee County, Tennessee when Trooper Boles
clocked him driving 77 miles per hour in a 70-mph zone. Boles waited for Hernandez’s car to
exit Interstate 24, then pulled him over at the side of a local road at 11:52 a.m. Boles was part of
a Tennessee Highway Patrol unit called “Interdiction Plus” that “pull[s] people over for minor
traffic offenses and then investigate[s] them for more serious crimes.” His unit stops motorists
for traffic violations such as minor speeding infractions and then, if there are no “indicators” of
criminal activity, “they’re given a warning . . . and they’re released.” In this case, Boles did not
plan to issue Hernandez a ticket for speeding if he saw no such indicators; instead he planned
only “to issue him a warning citation.”
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Betancourt, owner of the Yukon, was sitting in the front passenger seat; Norge Rodriguez
and Jose Perez were sitting in the back seat. Boles approached the car and requested
Hernandez’s driver’s license, the car’s registration, and proof of insurance. Upon learning that
Betancourt owned the car, he also requested Betancourt’s license. Boles went back to his patrol
car and requested a warrant check from the National Criminal Information Center (NCIC). At
11:59 a.m., seven minutes into the stop, the dispatcher told Boles that the NCIC warrant check
was negative.
Boles returned to the Yukon, requested Hernandez to step out for questioning, then asked
where he was going, who was in the car, whether he had ever been in trouble, and so on.
Trooper Donnie Clark arrived during the questioning. Boles then attempted to question the other
occupants of the car but was stymied by their limited English. Hernandez and Betancourt
repeatedly denied having anything illegal in the car, but Betancourt refused to consent to a car
search. Boles told them to wait a few minutes, and Clark requested a K-9 unit.
Boles then obtained driver’s licenses from Rodriguez and Perez and ran NCIC warrant
checks on them as well. At about 12:13 p.m., dispatch told him that the warrant checks on
Rodriguez and Perez were also negative. Around 12:12 or 12:13 p.m., Clark called the Blue
Lightning Operations Center (BLOC), a more comprehensive database that Boles did not have
access to, to conduct a more detailed check on all four occupants of the car.
While the Troopers awaited the results from BLOC, a dog handler arrived with a K-9 unit
at about 12:17 p.m. The police dog sniffed the exterior of the Yukon, alerting to the odor of
drugs.1 The handler then opened the car doors and the rear compartment and let the drug dog
into the car to sniff the interior. The dog did not alert once inside the vehicle; instead, it ate some
fast food out of a bag. After the dog did not alert inside the car, the K-9 handler shook the hands
of all four occupants and gave them a thumbs up. The K-9 handler then told Clark, “Donnie, I’m
sorry, Bubba.”
1The dog’s handler testified that it alerts to drugs by sitting down. As the Hernandez-Plaintiffs note, the
dog cannot be seen sitting down on the Troopers’ dashcam video. But, on this video, it is impossible to see what the
dog is doing on the far side of the car. In any event, the Hernandez-Plaintiffs did not argue at summary judgment or
on appeal that the Troopers lacked probable cause to search the car because the drug dog never alerted.
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After the dog failed to alert, Clark received a return call from BLOC. Clark told Boles to
call their supervisor and tell him, “We’ve got a refusal, and the canine didn’t hit, and they’ve got
an extensive background—meth.” Boles received authorization to conduct a search, and Clark
searched the Yukon. Clark found some gift cards in the driver’s side door and a large number of
gift cards rubber-banded together, as well as a bag containing an unknown substance, in a bag in
the back seat. Clark later used a scanner to ascertain that the gift cards had been re-encoded with
credit card numbers.
The Hernandez-Plaintiffs were arrested for possession of 370 re-encoded gift cards and
15 grams of a substance believed to be methamphetamine. Hernandez, Betancourt, and Perez
were held in pre-trial incarceration for nine months until the criminal charges against them were
dismissed. Rodriguez was held in pre-trial incarceration for only three months before the
dismissal of charges because he was bailed out.
B. Procedural History
Both parties moved for summary judgment on the claims of an illegal car search and
unreasonable duration of the traffic stop. The district court granted summary judgment to the
Troopers on the car-stop claim based on qualified immunity, concluding that “[p]laintiffs have
not identified any legal authority clearly establishing, or even hinting at, their right to be free of
searches and seizures when a dog alerts to the outside of a vehicle, but not the inside.” The court
denied both parties’ motions on the prolongation of the stop. On the Troopers’ motion it held
that, viewing the facts in the light most favorable to the Hernandez-Plaintiffs, “[a] reasonable
jury could find that Boles unreasonably prolonged the stop in violation of the Fourth Amendment
when he began to further question Hernandez after receiving a negative NCIC report.” On the
Hernandez-Plaintiffs’ motion, it held that “viewing the evidence in the light most favorable to
Defendants, a reasonable jury could determine that, based on the totality of the circumstances,
Defendants diligently pursued the traffic-violation investigation.”
At trial, the jury found for the Troopers on the sole remaining claim—that the traffic stop
was unreasonably prolonged. The district court denied the Hernandez-Plaintiffs’ subsequent
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motion for judgment as a matter of law under Federal Rule of Civil Procedure 50. The present
timely appeal followed.
II. ANALYSIS
A. Prolongation of the Car Stop
“We review de novo a district court’s decision to deny a renewed motion for judgment as
a matter of law under Rule 50(b).” EEOC v. New Breed Logistics, 783 F.3d 1057, 1065 (6th Cir.
2015) (citation omitted). For the Hernandez-Plaintiffs to succeed on their challenge, they must
nonetheless “overcome the substantial deference owed a jury verdict.” Radvansky v. City of
Olmsted Falls, 496 F.3d 609, 614 (6th Cir. 2007). Like the district court, this court “may grant
the [Rule 50] motion ‘only if in viewing the evidence in the light most favorable to the non-
moving party, there is no genuine issue of material fact for the jury, and reasonable minds could
come to but one conclusion, in favor of the moving party.’” New Breed Logistics, 783 F.3d at
1065 (quoting Radvansky, 496 F.3d at 614). We begin with the governing law.
In Rodriguez v. United States, the Supreme Court held that officers may not prolong a
traffic stop to have a drug dog sniff a car—a crime detecting action not ordinarily incident to a
traffic stop—absent independent reasonable suspicion to detain the motorist(s). 135 S. Ct. 1609,
1615–16 (2015). The Court determined that the police violated the Fourth Amendment by
detaining Rodriguez for seven or eight minutes after terminating the traffic stop by issuing him a
ticket. Id. at 1613–16 (rejecting the argument that the prolongation of the stop was permissible
because it was de minimis). “Like a Terry stop, the tolerable duration of police inquiries in the
traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that
warranted the stop . . . and attend to related safety concerns.” Id. at 1614 (citation omitted).
“Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably
should have been—completed;” whichever comes first. Id.
The Supreme Court opined that the “ordinary inquiries incident to the traffic stop” that do
not impermissibly extend a stop include “checking the driver’s license [and] determining
whether there are outstanding warrants against the driver.” Id. at 1615 (cleaned up). We have
held that checking passengers for warrants and brief questioning are permissible as part of a
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traffic stop, United States v. Smith, 601 F.3d 530, 542 (6th Cir. 2010), and that summoning a
drug dog to sniff a stopped car is permissible as long as it does not “improperly extend the length
of the stop,” United States v. Bell, 555 F.3d 535, 542 (6th Cir. 2009). But Rodriguez clarifies
that any extension of a traffic stop absent independent reasonable suspicion is improper. 135 S.
Ct. at 1615–16. This is a bright-line rule. Id.
The Hernandez-Plaintiffs maintain that they are entitled to judgment as a matter of law
because, on the undisputed facts, the Troopers unreasonably prolonged the duration of the car
stop. They assert that the traffic stop should have ended when the initial warrant check of
Hernandez and Betancourt came back negative, or at least when the initial warrant check of the
backseat passengers was concluded, and contend that it was unreasonably dilatory to check
everyone a second time in another database.
The Troopers maintain that the warrant checks of the four occupants through two
separate databases and the questioning of them were “ordinary inquiries incident to the traffic
stop” and thus they did not impermissibly extend the stop. The Troopers further contend that
because they were still awaiting the results of the background check from BLOC at the time that
the drug dog first sniffed the car, calling the dog to the scene did not prolong the traffic stop.2
The issue here is whether, at the time of the dog sniff, the stop had been prolonged
beyond the duration of the tasks incident to the initial stop or past the time reasonably required
“to address the traffic violation that warranted the stop.” Rodriguez, 135 S. Ct. at 1614. In other
words, the Hernandez-Plaintiffs need to show either that the second warrant check of the
occupants was not “tied to the traffic infraction” or that the traffic stop “reasonably should have
been” already completed. Id. This is the type of circumstance-specific Fourth Amendment
inquiry that, in the civil context, is generally reserved to the jury, as it was here. See, e.g.,
Gardenhire v. Schubert, 205 F.3d 303, 315–18 (6th Cir. 2000) (holding that whether the police
had probable cause was a question for the jury). For the Hernandez-Plaintiffs to prevail on their
2The Troopers also argued at summary judgment that, even if the traffic stop was unreasonably extended,
they had reasonable suspicion to detain the Hernandez-Plaintiffs based on Hernandez’s demeanor and answers to
Trooper Boles’s questioning. But the Troopers did not make this argument in their response to the Rule 50 motion
or on appeal. It is therefore forfeited.
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Rule 50 motion, they must show that under the facts of this case, running a check of a second
database or waiting 20 minutes to call for a second warrant check unreasonably extended the
traffic stop as a matter of law.
The Hernandez-Plaintiffs argue that the stop was legally improper because the Troopers
“were using a traffic stop as a pretext to fish for evidence of other crime.” It is well established,
however, that police officers may stop a vehicle that commits a traffic violation and look for
evidence of a crime, even if the traffic stop is merely a pretext and they do not have an
independent reasonable suspicion of criminal activity. See Whren v. United States, 517 U.S. 806,
813, 819 (1996); see also United States v. Everett, 601 F.3d 484, 495 n.12 (6th Cir. 2010) (“[I]t
is the objective conduct of the officer which the diligence standard measures; his subjective
intent or hope to uncover unrelated criminal conduct is irrelevant.”). To be sure, the Hernandez-
Plaintiffs were free to argue to the jury that the Troopers impermissibly extended the traffic stop
by checking a second database or waiting 20 minutes to call BLOC because they were trying to
uncover evidence of a crime. But Trooper Boles’s admission that he was interested in ferreting
out crime rather than merely issuing traffic tickets does not alter the Fourth Amendment analysis.
It remains the case that an officer’s subjective intent is generally immaterial; the stop, by
contrast, is unlawful if it is prolonged beyond the duration of tasks incident to the traffic stop or
“beyond the time reasonably required” to address the traffic violation. Rodriguez, 135 S. Ct.
at 1614–15 (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)); see also Bell, 555 F.3d at
541–42 (holding that officers may pursue unrelated matters during a traffic stop, such as calling a
drug dog to the scene to sniff the car, while they are waiting for the results of a warrant check, as
long as they do not impermissibly prolong the stop).
The Hernandez-Plaintiffs argue that the traffic stop was unreasonably prolonged because
the initial warrant check was completed 18 minutes before the drug dog showed up, the NCIC
warrant check of the backseat passengers was completed four minutes beforehand, and
“[c]hecking BLOC was a way to kill time. Even assuming that it had any valid purpose at all,
the Troopers did not do it diligently” because they waited until 20 minutes into the stop to call
BLOC. Certainly, the jury could have found that it was unreasonable to continue to detain the
Hernandez-Plaintiffs after the initial warrant check of Hernandez and Betancourt came back
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negative because that was not necessary to carry out the traffic stop—especially given that no
ticket was being written—or that the Troopers were unreasonably dilatory in waiting 20 minutes
to call BLOC. But the Hernandez-Plaintiffs cite no authority mandating such a determination as
a matter of law. And though the delay caused by checking two different databases is troubling,
the Hernandez-Plaintiffs point to no bright-line rule that officers are limited to checking one
database for warrants during a traffic stop. Whether the traffic mission was (or should have
been) over by the time the dog arrived was a question properly submitted to the jury.
In sum, the jury assessed all the facts and arguments and determined that the Troopers did
not unreasonably prolong the traffic stop. The district court correctly determined that the
question of whether the Troopers impermissibly prolonged the traffic stop was reserved to the
jury. Drawing all reasonable inferences in favor of the Troopers, as we must, we cannot say that
the Hernandez-Plaintiffs have met the high burden of showing that the jury’s verdict was
unreasonable as a matter of law. We therefore affirm the denial of the Hernandez-Plaintiffs’
Rule 50(b) motion for judgment.
B. The Car Search
The Hernandez-Plaintiffs also argue that the district court erred in granting partial
summary judgment to the Troopers on the ground that the car search did not violate clearly
established law. “We review a district court’s grant of summary judgment de novo.” Brown v.
Lewis, 779 F.3d 401, 410 (6th Cir. 2015) (citation omitted). Granting summary judgment “is
appropriate only ‘if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.’ It is not appropriate if . . . a reasonable
jury could return a verdict for the nonmoving party.” Id. (quoting Fed. R. Civ. P. 56(a)). In
reviewing a grant of summary judgment, this court “must view all evidence, and draw all
reasonable inferences, in the light most favorable to the [non-moving party].” Id.
Qualified immunity “protects government officials from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Goodwin v. City of Painesville, 781 F.3d 314,
320–21 (6th Cir. 2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). At summary
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judgment, qualified immunity must be denied and the case sent to the jury if the court finds that
“there are genuine issues of material fact as to whether [the Officers] violated [the plaintiff’s]
Fourth Amendment rights in an objectively unreasonable way and . . . those rights were clearly
established at the time of [the plaintiff’s] arrest such that a reasonable officer would have known
that his conduct violated them.” Id. at 321 (alterations in original) (quoting St. John v. Hickey,
411 F.3d 762, 768 (6th Cir. 2005)). Though courts may answer these two questions “in either
order,” id., we address first whether a constitutional violation occurred and then whether there
was a violation of the Hernandez-Plaintiffs’ clearly established rights.
1. Constitutional Violation
At issue is whether the Troopers violated the Fourth Amendment by manually searching
the Yukon even though the drug dog did not alert to the car’s interior. It is blackletter law that
the police can lawfully search a car without a warrant if they have probable cause. See, e.g.,
United States v. Ross, 456 U.S. 798, 809 & n.11 (1982) (collecting cases). The Troopers
articulate only one basis for probable cause to search the car: the drug dog’s alert to the exterior.
And the Hernandez-Plaintiffs do not dispute that the Troopers had probable cause to have the
dog climb into and sniff the interior of the car following its initial alert. So, the question is
whether the Troopers still had probable cause to conduct a manual search after the dog failed to
alert to the interior of the car.
The Hernandez-Plaintiffs argue that the Troopers did not have probable cause for this
search because, “under the specific circumstances, the dog alert was unreliable.” They rely on
Florida v. Harris, 568 U.S. 237 (2013), for the proposition that “officers must look at the
specific circumstances before concluding that an alert has produced probable cause.” The
Troopers respond that, even if there was a constitutional violation, they are entitled to qualified
immunity because the Hernandez-Plaintiffs cannot “point to any legal authority clearly
establishing that a drug dog’s alert to the outside but not the inside of a vehicle would not
provide probable cause to search the vehicle.”
The Hernandez-Plaintiffs’ reliance on Harris does not resolve the legal issue. Harris
stands for the proposition that a dog’s alert only provides probable cause if, in “controlled
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settings,” the “dog performs reliably in detecting drugs.” See 568 U.S. at 248. The Harris Court
did leave open the possibility that even if “a dog is generally reliable, circumstances surrounding
a particular alert may undermine the case for probable cause—if, say, the officer cued the dog
(consciously or not), or if the team was working under unfamiliar conditions.” Id. at 247. But
that does not cover the situation here—where a dog first alerts to the exterior and then fails to
alert to the interior of a car. The unrebutted evidence in the record showed that the drug dog was
generally reliable: The dog’s handler testified at his deposition that “she didn’t do any false
alerts since the time I got her till the time I retired.” And there is nothing in the record to suggest
that the circumstances of the dog’s alert undermine the dog’s reliability in the sense meant by
Harris.
The issue is governed by our precedent addressing the circumstances under which
probable cause dissipates. We held almost thirty years ago that the information acquired from a
fruitless search can dissipate probable cause and render a subsequent search illegal. See United
States v. Bowling, 900 F.2d 926, 932 (6th Cir. 1990). In Bowling, officers searched a trailer
home pursuant to a search warrant a few hours after officers had conducted a consent search of
the premises and found nothing. Id. at 930–31. We “agree[d] with [the] proposition” that
“where an initial fruitless consent search dissipates the probable cause that justified a warrant,
new indicia of probable cause must exist to repeat a search of the same premises.” Id. at 932.
Nonetheless, we declined to suppress the evidence found during the second search because,
though the consent search “was detailed at points, it was not overall as intricate as the search
under the warrant.” Id. at 934. In fact, incriminating evidence was found in a car behind the
trailer, which was not even searched during the consent search. Id. Thus, Bowling concluded,
“the consent search here was not so broad as to dissipate probable cause.” Id.
Other circuits to treat the issue agree that the acquisition of new information can dissipate
the probable cause for a search. See United States v. Dalton, 918 F.3d 1117, 1128–29 (10th Cir.
2019) (“Like the Sixth Circuit in Bowling, we are persuaded that probable cause becomes stale
when new information received by the police nullifies information critical to the earlier probable
cause determination . . . .”); United States v. Ortiz-Hernandez, 427 F.3d 567, 574–75 (9th Cir.
2005) (holding that any probable cause to arrest the defendant was dissipated after a strip search
No. 18-6281 Hernandez, et al. v. Boles, et al. Page 11
revealed that he did not have drugs); Bigford v. Taylor, 834 F.2d 1213, 1218–19 (5th Cir. 1988)
(holding that the police “may not disregard facts tending to dissipate probable cause”).
We have also held that the failure of a drug-sniffing dog to alert to a car dispels
suspicion. See United States v. Davis, 430 F.3d 345, 356 (6th Cir. 2005) (holding that officers
no longer had reasonable suspicion to detain a motorist on suspicion of drug possession and call
a second drug-sniffing dog to the scene after the first drug-sniffing dog did not alert). Indeed,
Davis stated that “[o]nce the drug-sniffing dog was brought to the scene and failed to alert
positively . . . , the officers’ suspicions that Davis was in possession of narcotics were dispelled.”
Id.
Based on Bowling and Davis, a reasonable jury could find in the Hernandez-Plaintiffs’
favor. Bowling stands for the proposition that a fruitless search negates probable cause, if it is
sufficiently thorough, and Davis stands for the proposition that a drug dog’s failure to alert
dispels suspicion. Viewing the evidence in the light most favorable to the Hernandez-Plaintiffs
and drawing all reasonable inferences in their favor, a jury could determine that the dog’s
fruitless sniffing of the car interior was sufficiently thorough to dissipate the probable cause to
search provided by its initial alert. The dog’s handler opened all four of the SUV’s doors and the
rear compartment, allowing the dog to sniff the whole interior, and the dog spent several minutes
inside the car. After the dog failed to alert, moreover, the dog’s handler shook the occupants’
hands, gave them a thumbs up, and apologized to Trooper Clark for the dog’s failure to alert.
These actions suggest that the handler felt the dog had cleared the Hernandez-Plaintiffs. Then,
when telling Boles what information to relay to their supervisor, Clark said that “the canine
didn’t hit.” A reasonable jury could conclude that the dog’s failure to alert inside the car
dispelled the probable cause provided by its initial alert to the exterior, and the Troopers could
therefore no longer lawfully search the car.
The Hernandez-Plaintiffs argue that the district court should have awarded them
summary judgment. In this particular situation, however, a dispute of material fact remained for
the jury to resolve. In his deposition, the dog’s handler said that, although the drug dog had
“been in parts of all of [the car],” the dog “had not searched it all” because “she got playing with
that food bag.” He testified that he had cut the search short because he was “embarrassed” that
No. 18-6281 Hernandez, et al. v. Boles, et al. Page 12
the Hernandez-Plaintiffs were “laughing at [the] dog” for focusing her attention on the food.
Viewing the evidence in the light most favorable to the Troopers, a reasonable jury could have
concluded that, because the first search of the car by the dog was not sufficiently thorough, it did
not dissipate the probable cause justifying a second, manual car search. See Bowling, 900 F.2d at
934 (holding that “the consent search . . . was not so broad as to dissipate probable cause”). We
therefore turn to whether the law was clearly established.
2. Clearly Established Right
This brings us to the clearly-established prong of the qualified immunity inquiry. “In
inquiring whether a constitutional right is clearly established, we must ‘look first to decisions of
the Supreme Court, then to decisions of this court and other courts within our circuit, and finally
to decisions of other circuits.’” Brown v. Battle Creek Police Dep’t, 844 F.3d 556, 566–67 (6th
Cir. 2016) (quoting Walton v. City of Southfield, 995 F.2d 1331, 1336 (6th Cir. 1993)). At the
time of the manual car search, it was clearly established that (a) probable cause to search an area
is dissipated when a sufficiently thorough prior search has been fruitless and (b) the failure of a
drug-sniffing dog to alert dispels suspicion. See Davis, 430 F.3d at 356; Bowling, 900 F.2d at
932–34.
But, to overcome qualified immunity, the clearly established law must be specific enough
“to put a reasonable officer on notice that the conduct at issue was unconstitutional.” Lewis, 779
F.3d at 417. “[T]here need not be a case with the exact same fact pattern or even ‘fundamentally
similar’ or ‘materially similar’ facts; rather, the question is whether the defendants had ‘fair
warning’ that their actions were unconstitutional.” Goodwin, 781 F.3d at 325 (quoting
Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir. 2005) (alteration in original)).
Nevertheless, the relevant principles should be defined at a “high ‘degree of specificity,’”
especially in the Fourth Amendment context. District of Columbia v. Wesby, 138 S. Ct. 577, 590
(2018) (quoting Mullenix v. Luna, 136 S. Ct. 305, 309 (2015) (per curiam)). Because probable
cause “cannot be ‘reduced to a neat set of legal rules’” and is “‘incapable of precise definition or
quantification,’” police “‘officers will often find it difficult to know how the general standard of
probable cause applies in the precise situation encountered.’” Id. (quoting Illinois v. Gates,
462 U.S. 213, 232 (1983); Maryland v. Pringle, 540 U.S. 366, 371 (2003); Ziglar v. Abbasi,
No. 18-6281 Hernandez, et al. v. Boles, et al. Page 13
137 S. Ct. 1843, 1866 (2017). Thus, in the Fourth Amendment context, “[w]hile there does not
have to be ‘a case directly on point,’ existing precedent must place the lawfulness of the
particular [search] ‘beyond debate.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011)).
Here, neither Bowling nor Davis is specific enough to clearly establish that the manual
car search was illegal. Bowling establishes that a fruitless search can dissipate probable cause
and Davis establishes that the failure of a drug-sniffing dog to alert at all dispels suspicion. But
neither governs the unusual circumstances of this case, where the same drug-sniffing dog first
alerted and then failed to alert to a car during a subsequent search. At the time of these events, a
reasonable officer would not have been on notice that the drug dog’s failure to alert again to the
interior of the car was the kind of new information that dissipated the probable cause provided by
its initial alert to the car exterior. This case provides such notice for future searches.
Accordingly, we affirm the district court’s grant of qualified immunity to the Troopers.
C. Recoverable Damages for an Illegal Search or Seizure
This brings us to one more issue addressed by the parties—whether damages are
recoverable for pre-trial incarceration stemming from an illegal search or seizure, a question of
first impression in this circuit. Because there is no basis for liability in this case, this issue is
pretermitted.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of the Hernandez-
Plaintiffs’ Rule 50(b) motion and the district court’s grant of partial summary judgment to the
Troopers on the car-stop claim.