Harris v. Klare

• Decision Date: 05 September 2018
• Docket Number: No. 17-6051,17-6051
• Citation: 902 F.3d 630
• Parties: Brittany HARRIS, Plaintiff-Appellant, v. Kimberly KLARE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

902 F.3d 630

Brittany HARRIS, Plaintiff-Appellant,

v.Kimberly KLARE, Defendant-Appellee.

No. 17-6051

United States Court of Appeals, Sixth Circuit.

Argued: May 2, 2018

Decided and Filed: September 5, 2018

ARGUED: David L. Engler, ENGLER LAW FIRM, Warren, Ohio, for Appellant. Claire E. Parsons, ADAMS, STEPNER, WOLTERMANN & DUSING, Covington, Kentucky, for Appellee. ON BRIEF: David L. Engler, ENGLER LAW FIRM, Warren, Ohio, for Appellant. Claire E. Parsons, Jeffrey C. Mando, ADAMS, STEPNER, WOLTERMANN & DUSING, Covington, Kentucky, for Appellee.

Before: COLE, Chief Judge; GIBBONS and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge.

Seventeen-year-old Brittany Harris was a passenger in her family’s minivan when it was pulled over by police officers in Erlanger, Kentucky. Later, Officer Kimberly Klare was summoned to escort Harris to a nearby restroom and, while doing so, searched her in allegedly inappropriate and unlawful ways. Harris brought suit under 42 U.S.C. § 1983, claiming that the search violated the Fourth Amendment. This appeal requires us to determine whether the district court erred in granting summary judgment to Klare. Because a reasonable jury could find that Klare’s search of Harris was unconstitutional and that Klare is not entitled to qualified immunity, we reverse.

I

A. Factual Background

Because the district court granted summary judgment, we review the facts "in the light most favorable to the nonmoving party," in this case, Brittany Harris. Tennial v. United Parcel Serv., Inc. , 840 F.3d 292, 301 (6th Cir. 2016). Viewed in that light, the facts are as follows.

On May 22, 2014, Harris, along with her mother, father and older sister, went out for dinner at TGI Friday’s. On the way home, their minivan was stopped by City of Erlanger police officers because of an obstructed license plate. The officers then conducted an investigation of Harris’s mother, who was the driver. Her mother was arrested for obstructing a license plate, driving with no registration plates, driving with a suspended license, and possession of a forged instrument.¹

During the investigation, officers also noticed that Harris’s father had "equipment for his work" in the vehicle, including "tools, like screwdrivers and wrenches," some of which were "sitting out" and some of which were "in containers." Based on the presence of these tools in conjunction with the violations listed above, the officers began to suspect that Harris’s mother was engaged in drug activity. They sent for a drug dog, but it found no drugs.

The wait for the drug dog to arrive took about an hour, and Harris needed to use the restroom. In order to escort Harris to the restroom, the police summoned a female officer, Kimberly Klare. Before Klare escorted Harris to the restroom, the officers asked Harris’s father if Klare had his permission to do so, and he consented. While waiting near the minivan, Harris observed Klare "put her hand on her gun ... three, four times." Harris and Klare did not leave until after Harris’s mother had been arrested and, according to Harris, after the dog’s sniffing—and indication that no drugs were in the minivan—was completed.²

En route to the restroom, Klare told Harris that she "may have to search" her. Klare then asked Harris, "would you step over here," to which Harris answered "yes" and walked to the requested location. By this time, the snap securing Klare’s gun was unfastened, and she placed her hand on the gun five times while talking to Harris.

The parties agree that at this point, Klare secured Harris’s hands behind her back. What happened next is disputed, but, as noted, for purposes of this summary judgment appeal, we must accept Harris’s version of events. She claims that, as part of a pat down, Klare placed her hands under Harris’s brassiere and pinched the girl’s breasts, causing bruising. According to Harris, Klare told her that she searched her the way she did because a previous suspect at that location had "stuffed needles in her bra" and because "[y]ou have that look," "[y]ou have the look of a junkie whore." But Klare found no drugs, drug paraphernalia, weapon, or other contraband on Harris.

B. Procedural History

Harris sued Klare, asserting claims under 42 U.S.C. § 1983 and Kentucky law.³ Klare moved for summary judgment, arguing that Harris had consented to the search and that, even if she had not, Klare was protected by qualified immunity. Harris responded that any consent she had given to the search was invalid, both because she had been illegally seized and because her consent was coerced rather than voluntarily obtained.

The district court agreed with Klare. It held that the officers had probable cause to stop the minivan because of the obscured license plate and that the presence of Harris’s father’s tools and equipment in the car, in conjunction with her mother’s alleged misfeasance, created a reasonable suspicion of drug activity, thereby permitting the officers to prolong the seizure while they completed their investigation. Declining to find that Harris had in fact consented to the subsequent search, the district court instead held that a reasonable officer in Klare’s position nonetheless could believe that Harris had consented and that Klare was therefore protected by qualified immunity.

II

We review de novo a district court’s grant of summary judgment. Watson v. Cartee , 817 F.3d 299, 302 (6th Cir. 2016). Summary judgment is appropriate only when "no genuine dispute as to any material fact" exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The Fourth Amendment begins: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. A search is per se reasonable, however, if the subject of that search freely and voluntarily gives consent to the search.⁴ United States v. Ivy , 165 F.3d 397, 401 (6th Cir. 1998).

Harris argues that Klare’s search was unreasonable for two reasons. First, if an individual is illegally seized, her consent to a search is generally "tainted by the illegality" of that seizure and therefore insufficient to make the search reasonable. Florida v. Royer , 460 U.S. 491, 507–508, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ; see also United States v. Richardson , 949 F.2d 851, 858 (6th Cir. 1991). Second, consent does not render a search reasonable if that consent is not "unequivocal, specific and intelligently given, [and] uncontaminated by any duress or coercion." United States v. Beauchamp , 659 F.3d 560, 571 (6th Cir. 2011) (quoting United States v. Moon , 513 F.3d 527, 537 (6th Cir. 2008) ).

Klare disputes that either basis to invalidate the search applies here. She also raises the defense of qualified immunity, under which Klare is entitled to summary judgment "unless the facts alleged would permit a reasonable juror to find that ... the [violated] right was clearly established" at the time of the search. Ellison v. Balinski , 625 F.3d 953, 959 (6th Cir. 2010).

A. The Seizure

The parties agree that if Harris was not legally seized at the time of the search, the search was itself illegal. They also agree that the initial seizure of the minivan and its passengers, under suspicion of a moving violation, was legal. And they agree that because that seizure was an "investigative detention rather than a custodial arrest ... [o]nce the purposes of the initial traffic stop [were] completed, there is no doubt that the officer[s] [could] not further detain the vehicle or its occupants unless something that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further detention." United States v. Bailey , 302 F.3d 652, 657–58 (6th Cir. 2002) (quoting United States v. Mesa , 62 F.3d 159, 162 (6th Cir. 1995) ).

Thus ends the parties’ agreement. Klare’s position is that Harris failed to raise before the district court whether the continued detention was justified at the time Klare searched her, and thereby forfeited her right to press that issue before this court. Klare also contends that, regardless of whether Harris forfeited this argument, the presence of tools, in conjunction with the apparent obfuscation of the license plate and Harris’s mother’s other traffic violations, created the reasonable suspicion that the vehicle was involved with the drug trade, thus justifying the continued detention of Harris and her family. Harris disagrees, asserting that she did raise the issue before the district court and that the above-listed facts were insufficient to create a reasonable suspicion of drug activity.

1. Forfeiture

"Ordinarily an appellate court does not give consideration to issues not raised below." Hormel v. Helvering , 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941). This reticence to consider unraised issues is born of the need "to ease appellate review by ensuring that district courts consider issues first, and to prevent surprise to litigants." Great Am. Ins. Co. v. E.L. Bailey & Co. , 841 F.3d 439, 443 (6th Cir. 2016). This rule is not absolute, however, and it is within the ambit of our discretion to entertain questions not raised below. Friendly Farms v. Reliance Ins. Co. , 79 F.3d 541, 544–45 (6th Cir. 1996).

In the matter sub judice , Klare moved for summary judgment, arguing that Harris had consented to the search. Harris filed a memorandum in opposition to that motion, arguing that her consent was invalid because she was seized without reasonable suspicion that she was engaged in illegal activity. Harris did not, however, explain why she believed the officers lacked reasonable suspicion. Nor did she make clear whether her position was that they had always lacked...