744 F.3d 999 (7th Cir. 2014), 13-1734, Huff v. Reichert

Docket Nº:13-1734
Citation:744 F.3d 999
Opinion Judge:Flaum, Circuit Judge.
Party Name:TERRANCE HUFF and JON SEATON, Plaintiffs-Appellees, v. MICHAEL REICHERT, Defendant-Appellant
Attorney:For TERRANCE HUFF, Plaintiff - Appellee: Louis J. Meyer, Attorney, MEYER & KISS, Chicago, IL. For MICHAEL REICHERT, Collinsville Police Officer, Defendant - Appellant: Steven Giacoletto, Attorney, GIACOLETTO LAW FIRM, Collinsville, IL.
Judge Panel:Before BAUER, FLAUM, and HAMILTON, Circuit Judges.
Case Date:March 10, 2014
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 999

744 F.3d 999 (7th Cir. 2014)

TERRANCE HUFF and JON SEATON, Plaintiffs-Appellees,


MICHAEL REICHERT, Defendant-Appellant

No. 13-1734

United States Court of Appeals, Seventh Circuit

March 10, 2014

Argued February 19, 2014

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Illinois. No. 12-596-MJR-PMF, Michael J. Reagan, Judge.

For TERRANCE HUFF, Plaintiff - Appellee: Louis J. Meyer, Attorney, MEYER & KISS, Chicago, IL.

For MICHAEL REICHERT, Collinsville Police Officer, Defendant - Appellant: Steven Giacoletto, Attorney, GIACOLETTO LAW FIRM, Collinsville, IL.

Before BAUER, FLAUM, and HAMILTON, Circuit Judges.


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Flaum, Circuit Judge.

Officer Michael Reichert pulled over Terrance Huff and Jon Seaton on the interstate highway in Illinois. Reichert said their car had crossed the white divider line without signaling. After sixteen minutes, he gave Huff a written warning. However, Reichert continued to detain the pair for thirty-four more minutes, during which time he conducted a pat-down of both men, a dog sniff of their car's exterior, and a thorough search of their car's interior. Huff and Seaton sued Reichert under 42 U.S.C. § 1983, alleging Fourth Amendment claims of unreasonable seizure, false arrest, and an unreasonable search of their persons and of Huff's car. The district court denied Reichert's motion for summary judgment based on qualified immunity. We affirm.

I. Background

After attending a Star Trek convention in St. Louis, Missouri, plaintiffs were returning home to Hamilton, Ohio on Sunday, December 4, 2011. Huff was driving and Seaton was in the front passenger seat. The car had Ohio license plates. At 8:10 am, Reichert stopped them on Interstate 55-70 in Collinsville, Illinois. The entire traffic stop is captured on video on Reichert's dashboard camera. That video is in the record.

Reichert first asked Huff for his driver's license, insurance, and registration. Huff provided all three documents. When Reichert asked if the address on his license was current, Huff replied that it is actually his mother's address and then provided his current address in Hamilton, Ohio. Reichert said he was having trouble hearing Huff and asked Huff to exit his car and stand behind it while Seaton remained in the passenger seat. Reichert then asked Seaton about their travels. Next, Reichert explained to Huff why he had pulled him over, stating that Huff crossed halfway over the center line in front of a truck without using a turn signal and then moved back into his own lane. Huff replied that he had had problems with the lid on his drink. Reichert asked Huff about his criminal history, to which Huff replied that he had no outstanding warrants but had been arrested about twenty years earlier. Reichert then called police dispatch, which related that Huff had been arrested for battery with injury and for marijuana cultivation in 2001. Huff had no convictions, though. Seaton had no criminal history. Reichert requested a backup officer, who later appeared on the scene. Reichert told Huff that he was letting him go with a warning. He gave Huff the warning and they shook hands. The encounter had lasted about sixteen minutes, at this point.

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Reichert then requested to speak to Seaton. He said Seaton seemed nervous and apprehensive. Reichert mentioned to Huff that the interstate highway had been used by motorists to carry drugs, guns, and large amounts of U.S. currency. He asked if Huff possessed any of those items in his car, and Huff said no. Reichert then asked if Huff had any objection to Reichert's searching the vehicle; Huff replied that he would " just like to go on [his] way." Reichert said that he was concerned about Seaton's demeanor and wanted to walk his drug-sniffing dog around the car. Huff responded " that's fine," but then said, " [y]ou pulled me over for swerving, and I know I did not swerve." He also said that he believed he was being " profiled" by Reichert. Huff then asked Reichert if he was free to go. Reichert responded, " not in the car."

Reichert then asked Huff for consent to search the car, and Huff responded that he felt he had no choice but to consent. Reichert said he was merely going to have the dog sniff around the car to see if it would alert. Huff said that Reichert could use the dog but could not search the car. Next, Reichert conducted a pat-down search of Huff and Seaton. Reichert then brought the dog out and circled the car with it. When Reichert and the dog got to the front of the car, Reichert repeatedly said, " show me where it's at! Find it!" The dog then barked. Reichert immediately replied, repeatedly, " [t]hat's a good boy!" Reichert admitted in his deposition that he was trained not to say these types of things to his dog during searches. Reichert told Huff that the dog alerted by scratching at the front of the vehicle and then barking. (This portion of the traffic stop is not visible on the video.)

Reichert then told Huff that he was going to search his car, and Huff responded, " do what you gotta do." Huff stated that, previously, a few individuals who smoke marijuana had ridden in his vehicle, but they had never smoked while in Huff's car. Reichert thoroughly searched the car. After the search, Reichert told Huff that there was marijuana " shake" in his car that needed to be vacuumed out. (" Shake" refers to the loose leaves, seeds, and stems at the bottom of a bag of marijuana.) However, Reichert did not document the presence of drugs in the car nor collect any physical evidence. About fifty minutes after the initial stop, and thirty-four minutes after giving Huff a warning ticket, Reichert told the plaintiffs that they were free to leave.

Plaintiffs filed this § 1983 suit against Reichert and the City of Collinsville,1 with claims based on the Fourth Amendment and state law. Their federal claims against Reichert allege an unreasonable seizure, false arrest, unreasonable search of their persons, and unreasonable search of the car. Their state law claims are not relevant to this appeal. After some discovery, Reichert filed a motion for summary judgment based on qualified immunity, which the district court denied. It reasoned that a " raft of disputed material facts exists," and when viewing these facts in the light most favorable to the plaintiffs, they had made out clearly established violations of their rights. Reichert appeals.

II. Discussion

The doctrine of qualified immunity " protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established

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statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). In an interlocutory appeal from the district court's denial of qualified immunity at summary judgment, we have jurisdiction to consider " only the purely legal question of whether, for purposes of [the defendant's] qualified immunity defense," the facts asserted by the plaintiffs make out a violation of clearly established law. Jewett v. Anders, 521 F.3d 818, 819 (7th Cir. 2008). Thus, we accept the plaintiffs' (or the district court's) version of the facts and ask whether the defendant is nevertheless entitled to qualified immunity. Id. In addition, a defendant official " may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a 'genuine' issue of material fact." McKinney v. Duplain, 463 F.3d 679, 686 (7th Cir. 2006) (quoting Johnson v. Jones, 515 U.S. 304, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)). But summary judgment orders are appealable when they concern " an 'abstract issue of law' relating to qualified immunity," id. (quoting Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)), such as whether the right at issue is clearly established or whether the district court correctly decided...

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