Oquendo et al v. City of Boise et al

Filing 31

MEMORANDUM DECISION AND ORDER - NOW THEREFORE IT IS HEREBY ORDERED, that the motion for partial summary judgment (docket no. 19 ) and the motion for summary judgment (docket no. 17 ) are GRANTED IN PART AND DENIED IN PART, in accordance with the findings set forth above in the Conclusion section of the decision. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JOSHUA OQUENDO and AMBER
OQUENDO (fka AMBER HALL),
husband and wife,

Case No. 1:15-cv-322-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
CITY OF BOISE, et al.,
Defendants.

INTRODUCTION
The Court has before it cross-motions for partial summary judgment. The
Court heard oral argument on the motions on February 8, 2017, and took the
motions under advisement. For the reasons explained below, the Court will grant
in part and deny in part both motions.
FACTS
On August 14, 2013, Boise City police officers Martinez and Ransom pulled
over a pickup truck driven by Amber Hall for having a broken tail light. Amber

Memorandum Decision & Order – page 1

had two passengers, Joshua Oquendo and Henry Hall. The time was 10:16 p.m.
See CAD Report (Dkt. No. 19-7)1; Martinez Declaration (Dkt. No. 17-3) at p. 2.
Both officers approached the truck. Officer Martinez was a new officer and
was being supervised by Officer Ransom at this time. See Complaint (Dkt. No. 2)
at ¶ 15.
Officer Martinez advised Amber of her broken tail light, asked for her
driver’s license, registration, and insurance, and asked if she would consent to a
search of the truck. She provided the documents but refused to give consent to the
search. After Amber turned over the requested documents, the officers returned to
their patrol car.
Officer Martinez then realized Amber’s insurance card had expired. He
returned to the truck, obtained a current insurance card, and returned to his patrol
car.
At this point, the officers called dispatch for a K-9 unit to do a drug sniff of
the car. At 10:19 p.m., the K-9 unit officer that evening – Officer Bonas –

1

The CAD Report is a computerized dispatch print-out showing the times that officers reported
to dispatch that they were conducting various activities such as making a traffic stop, arriving to, and
leaving from, a crime scene, etc. Obviously, the CAD Report is not a minute-by-minute account of the
officers’ activities because it only records the times they called into dispatch. But it is helpful in
assigning times to certain important events. The CAD Report shows that (1) the traffic stop was
conducted at 10:16 pm; (2) Officer Bonas responded to the call for a K-9 unit at 10:19 p.m. and arrived on
scene at 10:28 p.m.; (3) Officer Hilton arrived on scene at 10:21 pm.; (4) Officer Bonas had completed
his work, was back in his patrol car, and was clear to handle another call at 10:50 p.m.; and (5) Officers
Martinez and Hilton transported Amber and Joshua to jail around 11:02 p.m. See CAD Report (Dkt. No.
19-7).
Memorandum Decision & Order – page 2

responded to the call and started proceeding to the truck’s location. See Bonas
Deposition (Dkt. No. 19-7) at p. 40.
The officers used their computer to run the names of the truck’s occupants
for criminal background checks: They ran Amber at 10:20 p.m., Joshua at 10:22
p.m., Henry at 10:24 p.m., and the truck license plate at 10:27 p.m. See Martinez
Declaration (Dkt. No. 17-3) at ¶ 12. During this time – around 10:21 pm. –
Officer Hilton arrived on scene to assist the officers. See CAD Report, supra.
While sitting in his patrol car, Officer Martinez was not completing the
citation for the broken taillight. See Martinez Deposition (Dkt. No. 19-3) at p. 69;
Martinez Declaration (Dkt. No. 17-3) at ¶ 13 (“I had not completed a citation for
no tail lights when K-9 Officer Steve Bonas arrived at the scene with his dog at
approximately 10:28 p.m.”). He would not complete the citation until after the
drug-dog sniff. See Ransom Declaration (Dkt. No. 17-4) at ¶ 18 (stating that
“[a]fter the drug sniff was completed, I directed Officer Martinez to finish his cite .
. .”). In fact, Officer Martinez did not actually “finish up” the citation, and give it
to Amber, until after he had arrested Amber and transported her to the jail. See
Martinez Deposition, supra, at p. 69 (stating that the citation “probably would have
been finished at the jail based on everything that happened. That’s probably where
I would have finished it up at.”).

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As the officers sat in their patrol car, the K-9 Unit Officer Bonas arrived at
10:28 pm. See CAD Report (Dkt. No. 19-7); Bonas Declaration (Dkt. No. 17-6) at
¶ 2. By now, about 12 minutes had elapsed since Amber’s truck was pulled over.
Thinking “the stop was taking an extraordinarily long time,” Amber began using
her cell phone to record video of the police. See Amber Oquendo Declaration
(Dkt. No. 25-3) at ¶ 26.
Officer Bonas discussed the situation with Officers Martinez and Ransom
for a few minutes and then let his drug-dog out to pee. See Bonas Deposition
(Dkt. No. 19-6) at pp. 34-35.
Amber recalls waiting “at least 15 to 20 minutes” in the truck until the police
approached with the dog. Id. at ¶ 31. That would mean that the officers
approached the car with the drug dog between 10:33 p.m. and 10:38 p.m. By then,
the traffic stop would have lasted 17 to 22 minutes.2
Officers Martinez and Ransom, along with K-9 Officer Bonas and Officer
Hilton, approached the truck. Officer Martinez had not completed the citation for
the broken taillight and so their purpose in approaching the truck was not to serve

2

Officer Martinez recalls a much quicker series of events. According to his account, it was
10:30 p.m. when he notified Joshua that he was under arrest. See Martinez Declaration, supra, at ¶ 26.
That did not occur until after the drug-dog sniff, and after Joshua and Amber (1) were ordered to exit the
truck, (2) yelled at the officers, (3) were handcuffed, and (4) were placed in separate patrol cars. Id. at
¶¶ 21-22. If Officer Martinez is believed, the traffic stop was far shorter than alleged by Amber. But as
will be discussed below, the officers’ own testimony shows that the traffic stop was prolonged by 12 to 17
minutes for the drug-dog sniff. That is the key time-period for the qualified immunity analysis and it does
not depend on resolving the conflict between Amber and Officer Martinez.
Memorandum Decision & Order – page 4

the citation. Rather, their sole purpose was to remove the truck’s occupants so that
a drug sniff could be completed. Up to this point, the officers agree, the truck’s
occupants had been cooperative and pleasant.
Officer Martinez directed “all occupants of the vehicle to step out so that a
drug sniff could be performed.” See Martinez Declaration, supra, at ¶ 14. Amber
was video recording the police with her cell phone at this time. Amber Oquendo
Declaration, supra, at ¶ 39.
If the situation is frozen at this point, the traffic stop has lasted about 17 to
22 minutes, the truck’s occupants are getting ready to exit the truck, and the drug
dog is ready to take a run around the car. A smooth exit of the truck would take
only about 2 minutes, and the drug-dog run around the car would take an additional
minute. See Bonas Deposition, supra, at p. 54.
The exit and the sniff would take about 3 minutes if all went smoothly. That
3 minutes would be a delay in the traffic stop because the purpose of the stop – to
issue a citation – had been abandoned during this time. Moreover, there was an
earlier delay when Officer Bonas arrived on the scene, talked to the other officers
and allowed his dog to pee. If those 2 minutes are added to the 3 minutes for the
exit and sniff, there is a 5-minute delay in the traffic stop associated with the drugdog sniff.

Memorandum Decision & Order – page 5

But this still does not capture the full extent of the delay, which must also
include the delay by Officer Martinez in preparing the citation. Despite having the
assistance of three other officers, Officer Martinez failed to complete the citation.
Instead he abandoned the citation to join the other three officers in approaching the
truck for the drug-dog sniff. Thus, the delay in writing the citation must be added
to the delay caused the sniff itself.
The delay in writing the citation can be computed through Officer
Martinez’s own testimony. After the sniff was over, Officer Martinez would have
had to write up the citation, a task that would take him between 5 and 10 minutes.
See Martinez Deposition (Dkt. No. 19-3) at p. 47 (estimating that writing out a
citation may take 10 minutes but might be shortened to 5 minutes if “I’m writing
super fast”). He then would have to take some time to explain it to Amber,
perhaps 2 minutes. In all, the traffic stop is prolonged by Officer Martinez’s delay
in writing the citation by 7 to 12 minutes. Adding these minutes to the 5 minutes
identified earlier (the exit and sniff delay) means that the traffic stop was
prolonged by about 12 to 17 minutes, assuming all would have gone smoothly.
But everything did not go smoothly. When Officer Martinez ordered the
occupants of the truck to exit, Joshua observed that Amber “hesitated” in
complying with Officer Martinez’s command. See Joshua Oquendo Declaration
(Dkt. No. 25-4) at ¶ 37. Amber recalls that “[t]he officers’ display of power and
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force to remove us from our vehicle and search us and the pickup for nothing more
than a broken taillight was shocking and made me angry.” See Amber Oquendo
Declaration, supra, at ¶ 35. Amber started yelling at Officer Martinez, calling him
a “fucking pig.” See Martinez Audiotape at 5:38 to 41. After Amber’s initial
hesitation, she “started to get out” but Officer Martinez opened the door and
“physically yanked her out of the pickup.” Joshua Oquendo Declaration, supra, at
¶ 38.
Now out of the truck, Amber started walking away “which is what I thought
they wanted,” she later recalled. See Amber Oquendo Declaration, supra at ¶ 46.
But “Officer Martinez then physically grabbed and yanked me and insisted that I
go where he directed me.” Id. at ¶ 47. Amber was screaming, “I don’t give a fuck,
what the fuck do you want me fucking to do, Mother Fucker.” See Martinez
Audiotape at 6:00.
Officer Martinez asked Amber if she had any weapons her, and Amber
answered, “Fuck, I wish.” Id. at 6:04. At this point, Officer Martinez decided to
handcuff Amber for officer safety purposes. See Martinez Declaration, supra, at
¶ 16.
Amber recalls that at this point, “Officer Martinez shoved me up against the
vehicle, smashing my belly, incurring great pain, and causing me to yell at him and
call him names.” Id. at ¶ 53. Amber was concerned because she was six-months
Memorandum Decision & Order – page 7

pregnant. After being placed in handcuffs, Amber alleges that Officer Martinez
“then took his hands and, with the open palm of his hand, ran them up into my
crotch and into and under my bra. The way he touched me appeared and felt very
sexual and I expressed that to him.” Id. at ¶¶ 55-56.
Amber alleges that just before she was handcuffed, Officer Martinez took
her cell phone away. She alleges that “[b]ecause it was open and recording, the
recording was obvious.” Id. at ¶ 61. Officer Martinez asked if he could search her
cell phone and Amber refused. She alleges that “he went through my phone
anyway. Later when I got my phone back, the recording had been completely
erased.” Id. at ¶¶ 74-75.
Officer Martinez recalls it much differently. He recalls that “she did not
appear or claim to be recording the incident.” See Martinez Declaration, supra, at
¶ 17. He explains that “[i]n order to place handcuffs on Amber, I needed to take
the cell phone” and that he was “forced to pry [it] from out of [her] hands.” Id. He
alleges that when Amber refused to allow him to search the cell phone he honored
her refusal and did not search the phone. Id. at ¶ 24.
As for Joshua, he was yelling angry expletives at the police officers. He is
heard on the audio tape yelling, “Hey, you fucking be careful watching my fucking
girl because she is pregnant, alright Mother Fucker.” See Ransom Audiotape at
2:31. He recalls that as he tried to exit the truck, “Officer Ransom suddenly shoved
Memorandum Decision & Order – page 8

me back into the truck and told me not to get out.” Oquendo Declaration (Dkt. No.
25-4) at ¶ 40. Officer Ransom was concerned “that Joshua was going to intervene
with Officer Martinez so I ordered him to stay in the vehicle. Ransom Declaration
(Dkt. No. 17-4) at ¶ 14.
Officer Martinez states that he conducted a pat-down search of Amber
before placing her in the patrol car. See Martinez Declaration, supra, at ¶ 19.
Officer Ransom states that he did the same for Joshua. See Ransom Declaration,
supra at ¶ 15.
During this initial pat-down search, the officers told Amber and Joshua that
they were only being detained, not arrested. See Martinez Audiotape at 9:02.
Amber and Joshua were then placed in separate patrol cars after being subjected to
a full search.
Amber alleges that Officer Martinez “shoved and stuffed me into his car . . .
.” See Amber Oquendo Declaration, supra, at ¶ 66. He then closed the car door
with the windows rolled up. Id. at ¶ 68. Amber recalls that “the car was not
running, there was no air conditioning and it was extremely hot and muggy.” Id. at
¶ 69. She “panicked” and yelled for help, feeling “that I couldn’t breathe.” Id. at
¶ 70. Eventually another officer saw her distress and rolled down the window so
she “could get some air.” Id.

Memorandum Decision & Order – page 9

With Amber and Joshua in the patrol cars, Officer Bonas ran his drug-dog
around the truck to sniff for drugs. The dog did not alert on anything. According
to Joshua’s recollection, “[i]t took a minute or so for the dog to complete its run
around our car . . . .” Id. at ¶ 82. Officer Bonas also testified that it takes about a
minute to run a drug-dog around the car. See Bonas Deposition, supra, at p. 54.
The plaintiffs were transported to the jail where, as discussed above, Officer
Martinez completed the citation for a broken tail light and gave the citation to
Amber. The officers booked Amber and Joshua on charges of resisting and
obstructing an officer under Idaho Code § 18-705.
On August 15, 2013, Ada County Magistrate Judge John Hawley found
probable cause for the charges. See Exhibits A & B (Dkt. No. 24-3). The charges
were later dismissed.
LITIGATION BACKGROUND
The plaintiffs filed this action under § 1983 alleging that their constitutional
rights were violated. The constitutional deprivations alleged by plaintiffs include
the following: (1) Amber was groped during a search in violation of the Fourth
Amendment; (2) Amber was prevented from video recording the incident in
violation of the First Amendment; (3) Amber’s video was deleted by Officer
Martinez in violation of the First and Fourth Amendments; (4) Amber and Joshua
were subjected to excessive force and to an illegal search in violation of the Fourth
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Amendment; and (5) the traffic stop was unduly prolonged for a drug-dog sniff in
violation of the Fourth Amendment.
The defendants have filed a motion for partial summary judgment seeking a
ruling that they have qualified immunity from the claims that (1) Amber was
prevented from video recording the incident; (2) the plaintiffs were improperly
searched; (3) the traffic stop was improperly prolonged; and (4) the plaintiffs were
improperly ordered to exit their truck. Defendants also seek summary judgment on
the claims of malicious prosecution, battery, and the Monell claims against the City
of Boise.
Plaintiffs filed a cross-motion for summary judgment seeking a ruling that
their constitutional rights were violated when (1) they were commanded to exit
their vehicle for the drug-dog sniff, (2) the traffic stop was improperly prolonged
for the drug-dog sniff; and (3) they were searched incident to an illegal arrest.
The Court will begin with an analysis of the legal standards governing
qualified immunity, and then address first the qualified immunity claims of
defendants and then later the other claims of both parties.
LEGAL STANDARDS
Qualified Immunity – Legal Standards
The defendants ask the Court to hold as a matter of law that they are entitled
to qualified immunity. The doctrine of qualified immunity “protects government
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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.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Qualified
immunity gives government officials “breathing room to make reasonable but
mistaken judgments about open legal questions. When properly applied, it protects
all but the plainly incompetent or those who knowingly violate the law.” Ashcroft
v. al–Kidd, 563 U.S. 731, 743 (2011).
In determining whether an officer is entitled to qualified immunity, the
Court must determine (1) whether there has been a violation of a constitutional
right; and (2) whether that right was clearly established at the time of the officer’s
alleged misconduct. Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014).
Consequently, at summary judgment, an officer may be denied qualified immunity
in a Section 1983 action “only if (1) the facts alleged, taken in the light most
favorable to the party asserting injury, show that the officer’s conduct violated a
constitutional right, and (2) the right at issue was clearly established at the time of
the incident such that a reasonable officer would have understood his or her
conduct to be unlawful in that situation.” Torres v. City of Madera, 648 F.3d 1119,
1123 (9th Cir. 2011).
Qualified Immunity for Drug-Dog Sniff

Memorandum Decision & Order – page 12

The first question in the Torres analysis asks whether plaintiffs’ Fourth
Amendment rights were violated when the police K-9 sniffed for drugs around
their car. In Rodriguez v. U.S., 135 S.Ct. 1609, 1614-16 (2015), the Supreme
Court held that a drug-dog sniff of a vehicle conducted during a traffic stop must
be supported by an independent, reasonable suspicion of criminal activity if it adds
any time to the stop.
Here, the defendants do not argue that they had an independent reasonable
suspicion of criminal activity that allowed them to prolong the traffic stop.
Instead, they argue that the K-9 sniff did not prolong the stop beyond the time it
would normally take to issue the citation.
This argument would prevail if the four officers – at the time they
approached the truck with the drug-sniffing dog – had a citation in hand, and
explained the citation to Amber as the drug-dog took its run around the car.
Conducting the drug sniff simultaneously with the issuance of the citation does not
run afoul of the Fourth Amendment. Illinois v. Caballes, 543 U.S. 405 (2005).
But that is not what happened here. As discussed above, Officer Martinez
did not write out the citation prior to approaching the truck with the other officers.
He and the other officers were approaching the truck with a single goal in mind –
to conduct the drug sniff. They ordered the plaintiffs out of the truck not to explain
the citation – they had no citation to explain – but instead to allow for the drug
Memorandum Decision & Order – page 13

sniff. Amber was not given the citation until she had been arrested and taken to the
police station for booking.
In other words, the officers had abandoned the purpose of the traffic stop to
conduct the drug sniff. There were four officers on the scene, and they could have
easily pursued simultaneously the purpose of the traffic stop and the drug sniff. As
discussed above, the traffic stop was prolonged by 12 to 17 minutes for the drugdog sniff. As a matter of law, that delay violated plaintiffs’ Fourth Amendment
rights under Rodriguez.
A persuasive, although not binding, decision from the Idaho Court of
Appeals reached the same result. State of Idaho v. Aguirre, 112 P.2d 848
(Id.Ct.App. 2005). There, as here, the officers did not allocate the tasks of citation
writing and drug investigation, abandoned the initial purpose of the traffic stop,
and concentrated entirely on the drug-dog sniff. Id. at 852. There, as here, the
driver was not given his citation until after he was arrested and transported to the
jail. Id. The Idaho Court of Appeals held that this constituted a Fourth
Amendment violation. Id. The Court finds the decision persuasive due to its many
similarities with this case.
This brings the Court to the second question under Torres: Was the
plaintiffs’ constitutional right to not have the traffic stop prolonged by a drug-dog
sniff clearly established at the time of the incident such that a reasonable officer
Memorandum Decision & Order – page 14

would have understood his conduct to be unlawful in that situation. While the
drug-dog sniff in this case violated Rodriguez, that case was not decided until
2015, two years after the incident in question here, which occurred in 2013. While
the Idaho Court of Appeals decision in Aguirre was decided in 2005, several other
cases did allow for a brief delay of perhaps 2 to 8 minutes.
For example, the Eighth Circuit decision that was reversed by Rodriguez
noted that “we have repeatedly upheld dog sniffs that were conducted minutes after
the traffic stop concluded.” U.S. v. Rodriguez, 741 F.3d 905, 907 (8th Cir. 2014).
That statement is followed by a list of cases holding that brief delays were “a de
minimis intrusion on personal liberty.” Id. The delays in these cases were
between 2 and 4 minutes (with one case involving a delay of “well under 10
minutes”). Id.
For example, the list included U.S. v. Alexander, 448 F.3d 1014, 1017 (8th
Cir.2006), a case decided after Caballas but before Rodriguez holding (without
making any finding of reasonable suspicion) that prolonging a traffic stop for 4
minutes beyond its completion was a not a Fourth Amendment violation. In
Rodriguez itself, the Eighth Circuit held that a 7 or 8-minute delay for a drug-dog
sniff was de minimis and without constitutional significance. Rodriquez, 741 F.3d
at 907.

Memorandum Decision & Order – page 15

The case law in the Ninth Circuit was somewhat similar prior to Rodriguez.
In U.S. v. Turvin, 517 F.3d 1097, 1102-03 (9th Cir. 2008), the Circuit held that a
traffic stop may be prolonged for a drug-dog sniff, even in the absence of
reasonable suspicion, when there is only a “brief” delay, which in that case was 4
minutes.3 Id. at 1103-04; see also U.S v. Johnson, 2015 WL 875016 at *12 (D.
Nevada March 2 2015) (holding that a delay of “four to five minutes . . .
constituted no more than a de minimis intrusion on Defendant[‘s] . . . Fourth
Amendment rights”).4 Turvin turned away from holding a stopwatch to police
conduct, citing with approval cases from other jurisdictions holding that “police
are not constitutionally required to move at top speed or as fast as possible.” Id. at
p. 1102 (citing U.S. v. Hernandez, 418 F.3d 1206, 1212 n. 7 (11th Cir.2005)).
Turvin ultimately concluded that “[r]ather than bright-line simplification, the
Constitution requires a reasonableness analysis.”
Some of these pre-Rodriguez cases essentially borrowed a line of analysis
from Pennsylvania v. Mimms, 434 U.S. 106 (1977). That case found that requiring
a driver to exit his vehicle after being lawfully stopped was a mere “de minimis”
intrusion that did not violate the Fourth Amendment. This analysis was extended

3

In Turvin the Circuit held that a prolonged traffic stop was proper even without a finding that
there was reasonable suspicion of criminal activity. Id. at 1103-04.
4

Johnson was decided about 6 weeks before Rodriguez was filed.

(Continued)
Memorandum Decision & Order – page 16

by some pre-Rodriguez cases to uphold drug-dog sniffs causing only brief delays
because this intrusion was de minimis.5
These cases approved delays of between 2 and 8 minutes. The delay here
was between 12 and 17 minutes, according to the officers’ own testimony. The
parties cite no case – and the Court has been unable to locate any case – that
approved a 12 to 17-minute delay. Accordingly, the Court finds that any
reasonable officer would have known that the traffic stop here was prolonged even
beyond the brief time allowed by the law prior to Rodriguez. The Court therefore
finds that the officers are not entitled to qualified immunity for prolonging the
traffic stop to conduct a drug-dog sniff.
Qualified Immunity – Required to Exit the Vehicle
The plaintiffs seek summary judgment that their constitutional rights were
violated by being required to exit the truck. Defendants respond by arguing that no
rights were violated and that even if they were, the officers are entitled to qualified
immunity.

5

Turvin, in citing with approval an Eighth Circuit case approving a brief delay of a traffic stop so
the officer could ask three drug-related questions, stated that “[w]e need not pass upon that court’s
adoption of a de minimis exception justifying brief questions.” Turvin, 517 F.3d 1102. The reliance by
other courts on the de minimis exception to justify prolonging traffic stops for dog sniffs came to an end
when the Supreme Court in Rodriguez refused to apply Mimms to a drug-dog sniff. Rodriguez, 135 S.Ct.
1615-16.
Memorandum Decision & Order – page 17

Under Rodriguez, the plaintiffs’ Fourth Amendment rights were violated
when they were commanded to exit the vehicle. While the Supreme Court allows
police to issue an exit order while pursuing the mission of a traffic stop,
Pennsylvania v. Mimms, 434 U.S. 106 (1977), that does not extend to a situation
where the traffic stop has been abandoned for a drug-dog sniff. Rodriguez, 1354
S.Ct. at 1616. Because the exit order here was issued after the purpose of the
traffic stop was abandoned for a drug-dog sniff, the plaintiffs’’ Fourth Amendment
rights were violated under Rodriguez. This brings the Court to the second question
under Torres: Was the plaintiffs’ constitutional right to not be ordered to exit their
car for a drug-dog sniff clearly established at the time of the incident such that a
reasonable officer would have understood the exit order to be unlawful in that
situation.
Once again, the officers here did not have the benefit of Rodriguez, which
was still two years in the future. As discussed, cases prior to Rodriguez were
focusing on the de minimis analysis of Mimms. It would not be unreasonable for
an officer to expand the Mimms analysis beyond the traffic stop context and use it
in a drug-dog sniff context, concluding that it was only a slight inconvenience to
exit the car to conduct the sniff.
Moreover, Mimms was based on officer safety. The record in this case
establishes that there is a safety risk to the drug-dog officer when the vehicle’s
Memorandum Decision & Order – page 18

passengers are allowed to remain in the vehicle during the sniff. As Officer Bonas
testified, “I’m running the dog, and I’m watching the dog to see what he is doing
and not watching the people in the vehicle. That puts me at extreme risk.” See
Bonas Deposition, supra, at p. 18. There is also a safety risk to passengers because
the drug-dog is also trained “to apprehend” and if the passengers cause a
commotion, “the dog could take them as a threat [and] . . . something bad could
happen to them.” Id.
Thus, prior to Rodriquez, a reasonable officer could apply Mimms to issue an
exit order for a drug-dog sniff. The plaintiffs cite no clearly established law that
Mimms’ analysis could not be used to evaluate orders to exit to conduct a drug-dog
sniff. Hence, the Court finds the officers have qualified immunity for their order
that plaintiffs exit their vehicle, an order that violated plaintiffs’ Fourth
Amendment rights.
Qualified Immunity – Search of Occupants
There are significant disputes over whether the plaintiffs physically resisted
the officers and over the extent to which the officers searched the plaintiffs. If the
plaintiffs were physically resisting as the officers allege, they were properly
arrested for violation of Idaho Code § 18-705, which provides for criminal
punishment for anyone who “willfully resists, delays, or obstructs any police
officer in the discharge . . . of any duty of his office . . . .” The pat down search for
Memorandum Decision & Order – page 19

weapons followed by a full search when Amber and Joshua were placed in the
patrol cars would have been proper under the officers’ account of the facts. U.S. v.
Williams, 846 F.3d 303, 312 (2016) (holding that a search incident to arrest is not
limited to a simple pat-down of the suspect and can include “a relatively extensive
exploration” including a search of the insides of the suspect’s pockets). That the
search may have conducted just prior to the arrest does not invalidate the search.
U.S. v. Smith, 389 F.3d 944, 951 (9th Cir. 2004) (holding that “when an arrest
follows ‘quickly on the heels’ of the search, it is not particularly important that the
search preceded the arrest rather than vice versa”).
If the plaintiffs’ account is believed, however, the result changes. Plaintiffs
allege that they did not resist or obstruct the officers in any way but only verbally
abused them. That raises a question whether the arrest was proper, putting in
question also the search incident to that arrest. Amber recalls that she was not told
that she was under arrest under 20 to 25 minutes after she was searched. See
Amber Oquendo Declaration, supra, at ¶ 85. If she is believed, the arrest may not
have occurred “on the heels” of the search as was the case in Smith. The officers
had no video capability and so the Court cannot make any findings at this stage on
the conflicting accounts of the parties.
Plaintiffs argue that because the officers violated their constitutional rights
in ordering plaintiffs to exit the truck, the officers were not performing any “duty”
Memorandum Decision & Order – page 20

as that term is used in the Idaho Code, and hence the plaintiffs could not be
lawfully charged with resisting or obstructing a non-existent “duty.” Plaintiffs
seek summary judgment on this issue. While the Court has held that the exit order
violated plaintiffs’ constitutional rights, the Court also held that those rights were
not clearly established at that time. Thus, it would not be clear to a reasonable
officer that he had no authority to issue an exit order – the officer could reasonably
believe he had that authority and hence was performing a “duty” as that term is
used in the Idaho Code.
Because of the questions of fact, the Court cannot make any finding on
plaintiffs’ request for summary judgment or on the officers’ request for qualified
immunity. See Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th Cir. 2003).
(holding that “[w]here the officers’ entitlement to qualified immunity depends on
the resolution of disputed issues of fact in their favor, and against the non-moving
party, summary judgment is not appropriate”). Moreover, those same questions of
fact preclude any summary judgment for plaintiffs on this issue. This issue must
be presented to a jury.
Qualified Immunity – Search of Cell Phone & Deletion of Video
Amber claims in Count I of the complaint that her First Amendment rights
were violated when Officer Martinez retaliated against her for videoing the
incident with her cell phone. She also claims in Count III that her Fourth
Memorandum Decision & Order – page 21

Amendment rights were violated when Officer Martinez seized and searched her
cell phone. The officers seek summary judgment on this claim. As discussed
above, there is a question of fact over whether Officer Martinez searched the cell
phone and deleted the video. This dispute cannot be resolved on summary
judgment.
The Court would note that in Riley v. California, 134 S.Ct. 2473 (2014), the
Supreme Court unanimously held that warrantless searches of cell phones seized
incident to arrest violate the Fourth Amendment. Id. at 2495. But Riley was
decided about a year after the incident in question here. Could cell phones, seized
during a search incident to arrest, be examined in 2013 when this incident
occurred? The Ninth Circuit has held that under the pre-Riley caselaw it was
“objectively reasonable” for police to search cells phones seized during a lawful
search incident to arrest. U.S. v. Lustig, 830 F.3d 1075, 1080 (9th Cir. 2016). Of
course, here we have an allegation that not only was the cell phone searched but a
video deleted. Defendants cite no law that would allow a deletion, if it occurred.
This, then, is the legal background that will govern the cell phone issue, but
the conflicting accounts of the cell phone search and the deletion of the video
preclude the Court from resolving this issue on summary judgment. It must
therefore await trial.
Policy & Custom – Monell Liability Against Boise City
Memorandum Decision & Order – page 22

Plaintiffs’ allege in Count VIII that the policies and customs of the City of
Boise caused the constitutional deprivations in this case. The Supreme Court has
held that local government units are “persons” for purposes of § 1983. Monell v.
Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978). But a municipality
is liable under Monell only if a municipal policy or custom was the “moving force”
behind the constitutional violation. Villegas v. Gilroy Garlic Festival Ass'n, 541
F.3d, 950, 957 (9th Cir.2008). In other words, there must be “a direct causal link
between a municipal policy or custom and the alleged constitutional deprivation.”
Id.
Here, Boise City had a policy that gave the drug-dog officers complete
discretion to determine whether a drug-dog sniff should be undertaken. See Boise
City Police Policy Manual (Dkt. No. 25-15) at pp. 16-17. There is nothing in the
policy directing officers to avoid prolonging a traffic stop for a drug-dog sniff or
even to take into account the possibility of delay in determining whether to deploy
the drug-dog. The policy makes no attempt to require adherence to Supreme Court
decisions.
This policy is unconstitutional on its face for ignoring Supreme Court law.
Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 492 (9th Cir.1986). Because the
written policy is unconstitutional on its face, the causal relationship between the
policy and the constitutional tort may be proved by evidence of a single event
Memorandum Decision & Order – page 23

rather than a pattern of events that is required when the policy is not
unconstitutional on its face. Id. Here, there is a clear causal relationship between a
policy that ignores the law and police conduct that violates that same law. Hence
the defendants’ motion for summary judgment seeking to dismiss the claims
against the City of Boise will be denied.
Excessive Force
In Count IV of the complaint, plaintiffs claim they were subjected to
excessive force. While there was some misunderstanding in the early briefing, the
defendants stated in their reply brief that they were not seeking summary judgment
on this claim. See Reply Brief (Dkt. No. 28) at p. 3. The Court will accordingly
not rule on this claim at this time.
Malicious Prosecution
In Count VII, the plaintiffs charge the officers with malicious prosecution.
Malicious prosecution actions are not limited to suits against prosecutors but may
be brought against other persons who have wrongfully caused the charges to be
filed. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126-27 (9th Cir. 2002).
There is a rebuttable presumption that a prosecutor exercises independent
judgment in deciding to file criminal charges – or a judge exercises independent
judgment in finding probable cause – thus immunizing the investigating officers
from liability for injuries suffered after the charging decision. Smiddy v Varney,
Memorandum Decision & Order – page 24

665 F.2d 261 (9th Cir. 1981), overruled on other grounds, Beck v. City of Upland,
527 F.3d 853 (9th Cir. 2008). This presumption may be rebutted with evidence that
the officers “improperly exerted pressure on the prosecutor, knowingly provided
misinformation to him, concealed exculpatory evidence, or otherwise engaged in
wrongful or bad faith conduct that was actively instrumental in causing the
initiation of legal proceedings.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1067
(9th Cir. 2004). “Such evidence must be substantial.” Harper v. City of Los
Angeles, 533 F.3d 1010, 1027 (9th Cir. 2008).
But regardless of whether this presumption applies, “officers may always be
held liable if they acted “maliciously or with reckless disregard for’ the plaintiffs’
rights.” Johns v. City of Eugene, 2017 WL 663092 (D. Ore. Feb. 15, 2017)
(quoting Smiddy, 665 F.2d at 266-67).
In this case, Magistrate Judge John Hawley found probable cause for the
charges against Amber and Joshua on August 15, 2013. See Exhibits A & B (Dkt.
No. 24-3). There is no evidence – substantial or otherwise – that the officers
exerted undue influence over, or provided false information to, the Magistrate
Judge. Thus, there is nothing to rebut the presumption that the Magistrate Judge
exercised independent judgment in reaching his finding.
Nevertheless, as stated above, the officers could still be liable if their own
conduct could be described as malicious or in reckless disregard of plaintiffs’
Memorandum Decision & Order – page 25

rights. Here, there remain disputed issues over whether the officers used excessive
force, deleted Amber’s cell phone video, and groped her during a search.

If a jury

was to credit plaintiffs’ allegations and find the officers engaged in this conduct,
the jurors could reasonably find that conduct to be malicious or reckless.
While that potential would typically preclude summary judgment for
defendants, there is a twist here. Plaintiffs’ complaint already contains separate
allegations concerning the groping, video deletion and excessive force. The
plaintiffs have not explained how a jury could distinguish those claims from the
malicious prosecution claim and award recovery on them all without creating an
unfair double recovery for plaintiffs. Thus, the Court finds the malicious
prosecution claim in Count VII is redundant and will be dismissed for that reason.
Battery
In Count XII plaintiffs allege that the defendants committed a battery in
violation of Idaho Code § 6-904. That statue states that a governmental entity and
its employees acting within the scope of their employment and “without malice or
criminal intent” shall not be liable for any claim which “arises out of assault,
battery . . . .” The defendants seek summary judgment on this claim on the ground
that there is no evidence in the record that they acted with malice.
The battery allegedly occurred during the search and groping of Amber and
the search and restraint of Joshua. But the police conduct is already put at issue by
Memorandum Decision & Order – page 26

other claims, especially the excessive force claim. Plaintiffs do not explain how a
jury could award recovery for the battery claim and the excessive force claim
without awarding a double recovery. Therefore, the Court will dismiss this claim
as redundant.
Plaintiffs’ Motion for Partial Summary Judgment
Plaintiffs filed a cross-motion for summary judgment seeking a ruling that
their constitutional rights were violated when (1) they were commanded to exit
their vehicle for the drug-dog sniff, (2) the traffic stop was improperly prolonged
for the drug-dog sniff; and (3) they were searched incident to an illegal arrest.
In the discussion above, the Court held that plaintiffs’ constitutional rights
were violated (1) when they were commanded to exit their vehicle for the drug-dog
sniff, and (2) the traffic stop was improperly prolonged for the drug-dog sniff.
With regard to the search incident to arrest, the Court found questions of fact that
preclude summary judgment for either side.
The Court will therefore grant in part the plaintiffs’ motion for partial
summary judgment.
Conclusion
The Court will summarize its holdings below:
1. Drug-Dog Sniff: The plaintiffs’ Fourth Amendment rights were violated
when the traffic stop was prolonged for the drug-dog sniff. The officers
are not entitled to qualified immunity for this violation.
Memorandum Decision & Order – page 27

2. Order to Exit the Truck: The plaintiffs’ Fourth Amendment rights
were violated when they were ordered to exit their truck but the officers
are entitled to qualified immunity for that violation.
3. Search of Plaintiffs: Questions of fact preclude summary judgment for
either side on whether the search of plaintiffs violated their Fourth
Amendment rights.
4. Search of Cell Phone & Deletion of Video: Questions of fact preclude
summary judgment on whether the search of the cell phone and deletion
of video violated plaintiffs’ First and Fourth Amendment rights.
5. Monell Claims Against City: The Court will deny the City’s motion
for summary judgment on these claims.
6. Excessive Force: These claims are not at issue in these cross-motions
and hence remain for trial.
7. Malicious Prosecution: The Court finds this claim redundant and will
grant defendants’ motion for summary judgment on this claim.
8. Battery Under Idaho Law: The Court finds this claim redundant and
will grant defendants’ motion for summary judgment on this claim.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for partial
summary judgment (docket no. 19) and the motion for summary judgment (docket
no. 17) are GRANTED IN PART AND DENIED IN PART, in accordance with
the findings set forth above in the “Conclusion” section of the decision.
DATED: March 3, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision & Order – page 28