Fillmore v. Sharp et al
ORDER and OPINION, Denying 34 Plaintiff's Motion to Strike. Granting in part and denying in part 32 Defendant's Motion for Summary Judgment as follows: granted to the extent that the initial stop was supported by reasonable suspicion, the use of the drug-detection dog did not violate Fillmore's Fourth Amendment rights, and Sharp is not subject to punitive damages; denied insofar as Sharp has not articulated sufficient facts giving rise to a reasonable suspicion of drug-related activity justifying the prolonged detention. Signed by Judge John W Sedwick on 11/1/11.(DMT) *Modified on 11/2/2011 to add text* (DMT).
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
R. JOE FILLMORE,
ORDER AND OPINION
[Re: Motion at Docket 32 and 34]
I. MOTIONS PRESENTED
At docket 32, defendant Jeffrey Sharp (“defendant” or “Sharp”) moves for
summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff R. Joe
Fillmore (“plaintiff” or “Fillmore”) opposes the motion at docket 39. Defendant’s reply is
at docket 47.
At docket 34, Fillmore moves to strike portions of Sharp’s motion for summary
judgment. Sharp opposes the motion at docket 36. No reply was filed. Oral argument
would not assist the court.
This lawsuit arises out of a prolonged investigative detention. At around
2:00 a.m. on March 13, 2010, Sharp–an Arizona police officer–observed Fillmore’s
vehicle drifting within its lane on Interstate 17. Fillmore was traveling with his wife and
their dog from their home in Vail, Arizona, to Flagstaff, Arizona, to assist their daughter
with a court appearance. Most of the incident was captured on Sharp’s in-vehicle video
camera.1 Sharp initiated a traffic stop based on Fillmore’s driving. Fillmore took the
nearest freeway exit at Sharp’s direction and pulled over. Sharp told Fillmore that he
had been weaving and asked Fillmore to get out and stretch his legs when Fillmore
indicated he might have been feeling tired. Outside of the vehicle, Sharp asked Fillmore
where he was going, who he was staying with, and the duration and purpose of his trip.
Sharp subsequently returned to the vehicle’s passenger-side window and asked
Fillmore’s wife similar questions. Sharp maintains that Fillmore’s wife offered a slightly
inconsistent response as to the duration of their trip.
Sharp returned to Fillmore and issued him a warning citation. At some point,
however, Sharp became suspicious that Fillmore was transporting drugs and asked for
consent to search his vehicle. Fillmore did not offer his consent. Sharp then returned to
his own vehicle and requested a drug-detection dog. The dog was requested at
2:19 a.m. and the sniff search began approximately thirty minutes later. Fillmore and
his wife complied with officers’ requests to exit their vehicle with their pet. Sharp stood
near the Fillmores while the dog’s handler cued a search of the exterior of the Fillmores’
vehicle. The passenger-side window was partially open. The sniff search lasted
approximately four minutes. At 2:57 a.m., Fillmore and his wife were permitted to leave.
They were ultimately detained for approximately one hour.
See doc. 33-1.
Fillmore filed suit in federal court against Sharp and Robert Halladay (“Halladay”),
Director of the Arizona Department of Public Safety. Halladay was terminated as a
defendant in an amended complaint. Fillmore asserts claims against Sharp pursuant to
42 U.S.C. § 1983 for a violation of his Fourth Amendment right to be free from
unreasonable search or seizure. His complaint alleges that his Fourth Amendment
rights were violated by the prolonged detention and the use of a drug-detection dog to
search the interior of his vehicle. Fillmore seeks $100,000 in compensatory damages
and punitive damages on the premise that Sharp has a habit or practice of violating the
III. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine issue as to any
material fact and . . . the movant is entitled to judgment as a matter of law.”2 The
materiality requirement ensures that “only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.”3 Ultimately, “summary judgment will not lie if the . . . evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”4 In resolving a motion
for summary judgment, a court must view the evidence in the light most favorable to the
Fed. R. Civ. P. 56(c)(2).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
non-moving party.5 The reviewing court may not weigh evidence or assess the
credibility of witnesses.6 The burden of persuasion is on the moving party.7
A. Motion to Strike
Fillmore moves pursuant to Rule 12(f) to strike certain background information in
Sharp’s motion. Rule 12(f) only applies to “redundant, immaterial, impertinent, or
scandalous” information in a pleading.8 A motion is not a pleading.9 Fillmore therefore
has not identified a procedural vehicle for his motion to strike.10 The court notes,
however, that the material Fillmore seeks to strike has no bearing on the disposition of
Sharp’s motion for summary judgment.
B. Whether Sharp Had Reasonable Suspicion Justifying the Initial Stop
As a threshold matter, Fillmore’s complaint does not directly challenge the
lawfulness of the initial stop. The complaint states only that Fillmore was “pulled over
without probable cause.”11 Because both parties devote considerable space to the
issue in their briefing and because Fillmore is proceeding pro se, the court will address
Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000).
Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1036 (9th Cir. 2005).
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Fed. R. Civ. P. 12(f).
See Fed. R. Civ. P. 7(a).
See LRCiv 7.2(m)(1).
Doc. 1 ¶ 6.
the issue on the chance that Fillmore intended to assert a claim based on the
lawfulness of the initial stop.
Sharp argues that Fillmore’s investigatory detention was supported by
reasonable suspicion and therefore that there was no Fourth Amendment violation
pertaining to the initial stop. Fillmore maintains that Sharp did not have a reasonable
suspicion that Fillmore was driving while impaired because he did not drift within his
lane until after Sharp accelerated and “chose to bear down upon him.”12
“Reasonable suspicion is formed by specific articulable facts which, together with
objective and reasonable inferences, form the basis for suspecting that the particular
person detained is engaged in criminal activity.”13 In determining whether an officer had
reasonable suspicion of criminal activity, reviewing courts “must look at the totality of the
circumstances . . . to see whether the detaining officer has a particularized and
objective basis for suspecting legal wrongdoing.”14
Sharp cites State v. Blake, in which the Arizona Supreme Court found that a
defendant’s “weaving was a specific and articulable fact which justified an investigative
stop”15 for impaired driving. Fillmore argues that Blake is not controlling because his
claim is federal. Fillmore is generally correct that federal law governs disposition of his
Fourth Amendment claim. However, whether certain conduct gives rise to reasonable
suspicion that a state crime has been committed is dependent on interpretation of state
Doc. 39 at 2.
United States v. Colin, 314 F.3d 439, 442 (9th Cir. 2002) (internal quotations omitted).
United States v. Arvizu, 534 U.S. 266, 273 (2002).
718 P.2d 171, 175 (Ariz. 1986).
law. Consequently, state court decisions that speak directly to the issue are
Here, the drifting that allegedly gave rise to Sharp’s suspicion was captured on
video by a camera affixed to Sharp’s police car. Where video evidence contradicts a
party’s version of the events, on a motion for summary judgment a court must accept
the facts as depicted in the video provided “[t]here are no allegations or indications that
[the] video was doctored or altered in any way, nor any contention that what it depicts
differs from what actually happened.”17 There are no such allegations or indications
here. The video shows moderate drifting, and ultimately there is no dispute that
Fillmore’s vehicle was “meandering within its lane.”18
Given the totality of the circumstances–including the time of the stop and Sharp’s
training–the court concludes that Sharp had a reasonable suspicion that Fillmore was
driving while impaired. The initial stop of Fillmore’s vehicle did not violate the Fourth
1. Sharp’s Presence Does Not Affect the Analysis
Fillmore argues that Sharp’s presence caused him to drift within his lane and
therefore no inference can fairly be drawn from his own driving.19 Fillmore cites a case
from the Eight Circuit, in which the court adopted the Fifth Circuit’s conclusion that
See, e.g., Colin, 314 F.3d at 445–46 (applying People v. Perez, 221 Cal. Rptr. 776,
778 (Cal. Ct. App. 1985)).
Scott v. Harris, 550 U.S. 372, 379, 380–81 (2007).
Blake, 718 P.2d at 173 (Ariz. 1986).
Doc. 39 at 3.
“when [an] officer’s actions are such that any driver, whether innocent or guilty, would
be preoccupied with his presence, then any inference that might be drawn from the
driver’s behavior is destroyed.”20 It is not clear from the video whether Fillmore’s drifting
was caused by his preoccupation with Sharp’s presence, but the dispute is not material
because Fillmore does not cite any Ninth Circuit authority in support of that proposition
and the court declines to adopt the rule on these facts.
2. Sharp’s Failure to Conduct Field Sobriety Tests
Fillmore maintains that Sharp could not have had a reasonable suspicion that he
was driving while impaired because he did not ask Fillmore if he had been drinking or
ask to perform roadside sobriety tests. As defendant correctly points out, impaired
driving is not limited to driving while under the influence of alcohol. There are a number
of bases on which Sharp could have immediately concluded that Fillmore had not been
drinking alcohol. That does not affect whether Fillmore’s driving gave rise to reasonable
suspicion that he was impaired. Moreover, as defendant also points out, subjective
intent in making a stop is irrelevant so long as the stop is supported by a reasonable
suspicion of criminal activity.21
United States v. Jones, 269 F.3d 919 (8th Cir. 2001) (quoting United States v. Jones,
149 F.3d 364, 370 (5th Cir. 1998)).
See Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (“Our cases make clear that an
arresting officer’s state of mind . . . is irrelevant to the existence of probable cause.”).
C. Whether the Extended Investigation Was Justified
“[A] seizure that is lawful at its inception can violate the Fourth Amendment if its
manner of execution unreasonably infringes interests protected by the Constitution.”22
The Supreme Court has “rejected the notion that [a] shift in purpose from a lawful traffic
stop into a drug investigation [is] unlawful [if it is] not supported by any reasonable
suspicion.”23 However, a seizure that is prolonged beyond its original purpose must be
“supported by separate reasonable suspicion.”24 Here, there is no dispute that
Fillmore’s detention was prolonged when Sharp called for a drug-detection dog.
Sharp argues that the continued detention was reasonable. First, Sharp argues
that Fillmore consented. Second, Sharp argues that even if Fillmore did not consent,
the continued investigation was supported by a separate reasonable suspicion that
Fillmore was transporting drugs.
Fillmore responds first that Sharp’s questions–unrelated to the justification for the
stop–had to be supported by reasonable suspicion. Fillmore relies on United States v.
Chavez-Valenzuela.25 However, the Ninth Circuit has “acknowledged that the Supreme
Court ha[s] overruled those portions of Chavez-Valnezuela . . . that required police
officers to have reasonable suspicion to ask questions beyond the scope of a traffic
Illinois v. Caballes, 543 U.S. 405, 407 (2005).
Muehler v. Mena, 544 U.S. 93, 101 (2005) (citing Caballes, 543 U.S. at 408) (internal
United States v. Mendez, 476 F.3d 1077, 1081 (9th Cir. 2007).
268 F.3d 719 (9th Cir. 2001).
stop.”26 Therefore, the issues are whether Fillmore consented to the prolonged traffic
stop or whether Sharp held a reasonable suspicion justifying the expanded scope of the
1. Fillmore Did Not Consent to a Prolonged Investigation
Sharp argues that Fillmore consented to remaining at the scene of the detention.
A seizure under these circumstances depends on whether, “taking into account all of
the circumstances surrounding the encounter, the police conduct would have
communicated to a reasonable person that he was not at liberty to ignore the police
presence and go about his business.”27 Sharp gave Fillmore no indication that he was
free to leave after receiving the warning citation and before the drug-detection dog
arrived. It is clear from the video evidence that a reasonable person would not have felt
free to go about his or her business. Fillmore did not consent to the prolonged
2. Whether the Prolonged Encounter Was Supported by Reasonable
Sharp maintains that he had a reasonable suspicion that Fillmore was
transporting drugs based on 1) the time at which Fillmore and his wife were traveling;
2) the presence of covered items on the passenger side floorboard; 3) a lack of eye
contact with Fillmore’s wife; 4) a small suitcase on the backseat; 5) the presence of the
Fillmores’ dog; 6) Fillmore’s stretching; 7) Fillmore’s “constant talking” and “small talk”;
United States v. Turvin, 517 F.3d 1097, 1099–1100 (9th Cir. 2008) (citing Mendez, 476
F.3d at 1080) (emphasis added).
Florida v. Bostick, 501 U.S. 429, 437 (1991) (internal quotations omitted).
8) inconsistent statements as to the duration of the trip between Fillmore and his wife; 9)
the “dramatic change” in Fillmore’s demeanor; and 10) Fillmore’s familiarity with Fourth
Amendment case law.28 Even in the aggregate, those facts are not persuasive.
Sharp maintains that based on his drug interdiction training, those facts gave him
a reasonable suspicion that Fillmore was transporting drugs. While the “process allows
officers to draw on their own experience and specialized training to make inferences
from and deductions about the cumulative information available to them that might well
elude an untrained person,”29 Sharp’s training does not appear relevant to any of the
articulated facts. The time of travel is not inherently suspicious. Most overnight
travelers would have a suitcase, and the backseat is not an uncommon place to put
one. The fact that the Fillmores’ dog was also in the backseat does not make the
otherwise commonplace circumstances suspicious, especially given that there was no
other place for the dog to ride. A lack of eye contact is not indicative of drug running.
Covered items on the floor might suggest to an officer that a driver was transporting
drugs, but it stands to reason that a drug runner would put their drugs in the trunk and
not on the passenger compartment floor. Similarly, conflicting responses from
passengers regarding travel plans could be suspicious in the context of other facts, but
there was no such context here.
In short, none of the proffered facts are indicative of drug transportation, and the
sum of those facts does not assume a criminal nature when the facts are assessed in
Doc. 32 at 13.
Arvizu, 534 U.S. at 273 (internal quotations omitted).
their totality. Consequently, Sharp has not articulated facts sufficient to support a
reasonable suspicion that Fillmore was transporting drugs.
D. Use of a Drug-Detection Dog Did Not Implicate the Fourth Amendment
“[T]he use of a well-trained narcotics-detection dog–one that does not expose
noncontraband items that otherwise would remain hidden from public view–during a
lawful traffic stop, generally does not implicate legitimate privacy interests.”30 Sharp
maintains that the dog sniff search did not implicate the Fourth Amendment. Fillmore
argues that the Fourth Amendment was implicated and violated when the dog sniffed at
(or inside) the car’s open window. Here, the dog sniff was performed primarily on the
exterior of the vehicle, but the passenger-side window was open, and the dog’s handler
cued the dog to search near the open window. Whether the dog actually put its head
inside the open window is immaterial because the video evidence shows that it was not
prompted to sniff inside.31 Moreover, the police officers did not direct the Fillmores to
open the window prior to the dog’s arrival and did not direct them to leave the window
open when they exited the vehicle.32 The legality of the sniff search cannot turn on
whether a window is open or closed.
Caballes, 543 U.S. at 409.
See United States v. Stone, 866 F.2d 359, 364 (10th Cir. 1989) (sniff search upheld
where there was no evidence that police asked the defendant to open his vehicle’s hatchback or
that the dog’s handler encouraged the dog to jump in the car). When Fillmore’s wife asked to
close her window at an earlier time, Sharp requested that she only close it halfway. That
exchange occurred before the drug-detection dog arrived and was unrelated to the sniff search.
E. Punitive Damages
Sharp argues that there is no basis for punitive damages. Fillmore does not
refute that argument. Fillmore has not offered any evidence that Sharp’s conduct was
“malicious, wanton, or oppressive.”33 Nor has Fillmore supported his allegation that
Sharp has a “habit and practice” of violating constitutional rights.34 Sharp is not subject
to punitive damages.
For the reasons above, plaintiff’s motion to strike at docket 34 is DENIED.
Defendant’s motion at docket 32 for summary judgment pursuant to Rule 56 is
GRANTED in part and DENIED in part as follows:
1) It is granted to the extent that the initial stop was supported by reasonable
suspicion, the use of the drug-detection dog did not violate Fillmore’s Fourth
Amendment rights, and Sharp is not subject to punitive damages.
2) It is denied insofar as Sharp has not articulated sufficient facts giving rise to a
reasonable suspicion of drug-related activity justifying the prolonged detention.
DATED this 1st day of November 2011.
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
See Dang v. Cross, 422 F.3d 800, 807, 808 (9th Cir. 2005).
Doc. 1 ¶ 25.
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