Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
8-3-1995
Karnes v Skrutski & Kowalski
Precedential or Non-Precedential:
Docket 94-1633
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 94-1633
___________
GEORGE KARNES,
Appellant
v.
THOMAS SKRUTSKI, in his individual capacity;
EDWARD KOWALSKI, in his individual capacity
_______________________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 91-cv-04269)
___________________
Argued March 7, 1995
Before: BECKER, SCIRICA, and WOOD*, Circuit Judges
(Filed August 3, 1995)
GARY S. GILDIN, ESQUIRE (ARGUED)
150 South College Street
Carlisle, Pennsylvania 17013
STEFAN PRESSER, ESQUIRE
American Civil Liberties Union
125 South Ninth Street, Suite 701
Philadelphia, Pennsylvania 19107
Attorneys for Appellant
JOSEPH S. RENGERT, ESQUIRE (ARGUED)
JOANNA N. REYNOLDS, ESQUIRE
Pennsylvania State Police
1800 Elmerton Avenue
Harrisburg, Pennsylvania 17110
Attorneys for Appellees
1
*The Honorable Harlington Wood, Jr., United States Circuit Judge
for the Seventh Judicial Circuit, sitting by designation.
2
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
This dispute arises out of an automobile search after
the driver was stopped for speeding. This appeal, framed in the
context of qualified immunity, addresses what characteristics can
constitute reasonable suspicion sufficient to justify an
investigatory stop and a detention based on that stop. Plaintiff
George Karnes filed suit under 42 U.S.C. § 1983 (1988), alleging
Pennsylvania State Troopers Thomas Skrutski and Edward Kowalski
violated his rights under the Fourth and Fourteenth Amendments to
the United States Constitution.0 Karnes appeals the district
court's grant of qualified immunity in favor of defendants and
its denial of his motion for judgment as a matter of law.
Karnes alleged three violations of the Fourth
Amendment: (1) an investigatory stop made without reasonable
suspicion; (2) an unconstitutionally lengthy detention; and (3) a
search conducted without probable cause. At trial, after the
close of the evidence, the district court denied plaintiff's
motion for judgment as a matter of law. In ruling on defendants'
motion for judgment as a matter of law, the district court
granted qualified immunity to Skrutski and Kowalski as to the
existence of reasonable suspicion and the length of detention,
0
The Fourth Amendment, as incorporated into the Fourteenth
Amendment, applies to the conduct of state officials. Mapp v.
Ohio, 367 U.S. 643, 655 (1961).
3
but denied it on whether probable cause existed for the police to
search Karnes's car. The jury addressed this question through a
special interrogatory, which it answered in defendants' favor,
and the district court then granted qualified immunity to the
police regarding probable cause for the search. Karnes appeals.
We will reverse in part and affirm in part.
I.
A.
On October 26, 1990, George Karnes was driving his car
west on Interstate 78 toward Duncannon, Pennsylvania. At about
5:00 p.m., defendant Skrutski, a Pennsylvania State Police
Trooper, stopped Karnes for violating the speed limit. It is
undisputed Karnes was speeding and that Skrutski stopped Karnes
only because he was speeding. At the time of the stop Skrutski
had no reason to suspect Karnes of any illegal activity.
After stopping Karnes, Skrutski requested that a Canine
Drug Enforcement Unit be sent to assist him. Karnes contends
Skrutski requested the canine unit at 5:00 p.m., immediately
after stopping him, while Skrutski claims he requested the unit
at 5:15 p.m. after observing many factors which made him suspect
Karnes was transporting drugs. While waiting for the dog to
arrive, Skrutski asked to search Karnes's camera bag, film
canister, and a manila envelope. Karnes consented to these
searches which revealed no contraband. Karnes refused to consent
to further searches of his luggage and car.
Defendant Edward Kowalski arrived with a dog trained in
narcotics detection at approximately 5:30 p.m. Between then and
4
7:00 p.m., the officers repeatedly requested Karnes's consent to
search the car, but Karnes refused. Ultimately, the police used
the dog to sniff the exterior of Karnes's car, and it jumped
through the open driver's side window twice. The two troopers
then searched the interior and trunk of Karnes's car. Their
search uncovered nothing illegal, and they released Karnes at
approximately 7:30 p.m., after issuing a citation for speeding.
Karnes contends that defendants lacked reasonable
suspicion required by the Fourth Amendment to convert the routine
traffic stop into a detention for investigation of drugs, and
that even if reasonable suspicion were present, his detention for
nearly two and one-half hours exceeded the scope of a seizure
based on less than probable cause. Karnes also claims the search
of his car was unlawful as the police lacked probable cause.
Defendants maintain the use of the dog did not violate
the Fourth Amendment because they had reasonable suspicion to
detain Karnes beyond the scope of an ordinary traffic stop in
order to investigate whether he was transporting drugs. The
length of detention, they assert, was due to Karnes's
argumentative questioning of their procedures. Further,
defendants assert the dog signalled the possible presence of
drugs by jumping in the open window of Karnes's car, thus
providing probable cause for them to conduct a full search.
Defendants contend Skrutski observed indicators of
possible drug activity that provided reasonable suspicion to call
for the dog: (1) Karnes's car was a blue mid-sized Honda Accord;
(2) the car had high mileage for its age (145,000 miles over a
5
three-year period); (3) the car had a two-way citizens band
radio; (4) the car had a radar detector; (5) the car had an
antenna on the trunk, possibly for a car phone; (6) the car had
Florida license plates and registration; (7) Karnes had maps in
his car, one of which was open to New York City, specifically the
Bronx, allegedly a center for the illegal drug trade; (8) Karnes
was travelling on an interstate highway to the Harrisburg area,
also allegedly a regional center for drug trafficking; (9) Karnes
gave Skrutski permission to search a camera bag and manila
envelope but refused to consent to further searching; (10)
Skrutski noticed brown and green "vegetable matter," which he
suspected was marijuana, ranging in size from dust to an inch in
diameter on the rear floor of plaintiff's vehicle (in fact the
"vegetable matter" was ordinary tree leaves); (11) Skrutski
observed that Karnes was nervous and evaded questions; and (12)
Skrutski thought that Karnes's limited baggage was inconsistent
with his assertion he had been travelling a long time and that
his casual attire belied his assertion he was returning from a
business engagement earlier that day. Defendants further state
that after Kowalski arrived with the dog they observed other
factors: (1) Karnes requested to drive off of the highway to a
rest stop to use the rest room; (2) they saw fast-food wrappers
in the car; (3) Karnes demonstrated knowledge of drug
interdiction programs.
Karnes denies the presence of many of these factors,
and argues defendants asked for and received explanations for the
remainder. Karnes denies the car had a car phone antenna, that
6
the maps he had were open to the Bronx, and that he was nervous.
Karnes explained to the police that he bought the car used with
high mileage on it and that he drove a great deal for his work
installing computer systems. He explained his company was
headquartered in Florida and gave the troopers a business card
for them to verify the information. Karnes told them the
"vegetable matter" was leaves from a recent camping trip and that
his casual attire was what he normally wore on his job. Karnes
admits he asked to go to the nearest exit to use a rest room to
urinate but also states that he ultimately requested simply to be
allowed to use the nearby woods. He contends the troopers
refused his request unless he would consent to a search of his
car.
B.
Karnes states that the defendants were purportedly
using indicators established by the Pennsylvania State Police
Department's Operation Whiteline, a program designed to train
officers in evaluating conduct which otherwise might be
considered innocent, but which in fact is an effort to disguise
drug trafficking. Karnes contends that many of the factors
Skrutski purported to rely upon were personally developed
indicators which are not found in official Operation Whiteline
lists, and that many of the factors the defendants developed
contradict the Whiteline factors. In any case, Karnes argues the
innocence of each factor.
We have previously noted that the use of indicators or
drug courier profiles has been sharply challenged, especially
7
when the profiles "include constitutionally-relevant factors,
such as membership in certain racial groups, or neutral factors
arguably unrelated to drug trafficking, such as wearing
disheveled clothing or looking 'different.'" United States v.
Coggins, 986 F.2d 651, 655 n.1 (3d Cir. 1993). Neither in
Coggins nor elsewhere have we specifically analyzed the impact
drug courier profiles or indicators may have on courts' Fourth
Amendment analysis.
Whether courts should give weight to the fact that a
person searched met the characteristics of a drug courier profile
is not a question we need to decide in this case.0 Defendants
0
The Supreme Court recently responded to a defendant's claim that
use of a profile served to undermine the government's reliance on
the facts it presented to prove reasonable suspicion by noting
that "the fact that these factors may be set forth in a 'profile'
does not somehow detract from their evidentiary significance as
seen by a trained agent." United States v. Sokolow, 490 U.S. 1,
10 (1989) (emphasis added). The Court gave no indication that
the profile would enhance the significance of these facts, and
thus Sokolow suggests that "the drug courier profile has little
meaning independent of the objective facts" presented by the law
enforcement officer as sufficient to demonstrate reasonable
suspicion. United States v. O'Neal, 17 F.3d 239, 242 n.5 (8th
Cir.), cert. denied, 115 S. Ct. 418 (1994). In other words,
while the factors the law enforcement officer uses to demonstrate
that the profile is met can support a finding of reasonable
suspicion, the profile as such does not provide any additional
support for such a finding.
The drug courier profile here, which defendants have
not demonstrated to be empirically valid, thus serves as no more
than an investigative tool for law enforcement officers. See
United States v. Berry, 670 F.2d 583, 600 & n.21 (5th Cir. Unit B
1982) (en banc) (rejecting use of profiles without examination of
the totality of circumstances, but recognizing the utility of the
profile as a guide to help law enforcement officers determine
which individuals merit closer attention). The profile cannot,
without more, serve as a method by which innocent factors can be
lifted by their own bootstraps somehow to become suspicious. Cf.
United States v. Lopez, 328 F. Supp. 1077, 1086, 1101 (E.D.N.Y.
8
relied on numerous factors which are not part of the Operation
Whiteline profile, and they do not allege the stop of Karnes was
justified by the profile alone. Indeed, the defendants stated:
Indicators on which an officer may rely may
be contained in the Operation Whiteline
booklet, and may be developed by the troopers
themselves based upon local information and
things observed in their experience. It is
not possible to list all of the indicators in
a single source document because they are
dynamic and continuously changing as drug
traffickers change their procedures.
Appellees' Br. at 7 (citations omitted). The defendants'
reliance on the Operation Whiteline profile was thus so
attenuated as to make the profile in this case irrelevant to our
determination of reasonable suspicion. Our analysis will look
instead at the objective facts which defendants claim constitute
reasonable suspicion. See United States v. Cortez, 449 U.S. 411,
417-18 (1981) (holding that reasonable suspicion requires a
"particularized and objective basis for suspecting the particular
person stopped of criminal activity").
II.
1971) (accepting the validity of an anti-hijacker profile
compiled through rigorous and careful scientific analysis, but
rejecting its use when one criterion was eliminated and two added
without proof that the alterations were similarly valid). We
think it appropriate to expect that the government prove that "an
identifiable profile exist[s], that it consist[s] of specific
elements which accurately identif[y] criminals, and that the
[plaintiff] conformed to it," before expecting acceptance of the
profile as an element in the totality of the circumstances test.
See Morgan Cloud, Search and Seizure by the Numbers: The Drug
Courier Profile and Judicial Review of Investigative Formulas, 65
B.U. L. Rev. 843, 853-54 (1985).
9
Our review of the district court's grant of a motion
for judgment as a matter of law is plenary, and we apply the same
test for granting or denying it as did the district court.
Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.
1993). In a motion for judgment as a matter of law, we review
the facts from the perspective most favorable to the nonmovant.
Id. The determination of reasonableness under the Fourth
Amendment is a question of law that we review de novo. United
States v. Coggins, 986 F.2d 651, 654 (3d Cir. 1993); United
States v. Walker, 933 F.2d 812, 815 (10th Cir. 1991), cert.
denied, 502 U.S. 1093 (1992). The district court had
jurisdiction under 28 U.S.C. § 1343 (1988). We have appellate
jurisdiction under 28 U.S.C. § 1291 (1988).
III.
Karnes's prima facie case under § 1983 requires that he
prove he suffered a violation of rights created by federal law,
Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985), at the hands
of a person acting under color of state or territorial law, Gomez
v. Toledo, 446 U.S. 635, 640 (1980). The defendants raised the
affirmative defense of qualified immunity, id., which absolves
defendants if reasonable officers could have believed their
conduct was lawful "in light of clearly established law and the
information the searching officers possessed," Anderson v.
Creighton, 483 U.S. 635, 641 (1987). This qualified immunity
inquiry is an objective, fact-specific pursuit. Id.; see also
Malley v. Briggs, 475 U.S. 335, 341 (1986). Defendants bear the
burden of establishing the affirmative defense of qualified
10
immunity. Ryan v. Burlington County, N.J., 860 F.2d 1199, 1204
n.9 (3d Cir. 1988), cert. denied, 490 U.S. 1020 (1989).
The district court granted in part defendants' motion
for judgment as a matter of law at the close of the evidence, and
we must therefore consider whether the evidence, presented in a
light most favorable to Karnes together with all reasonable
inferences on his behalf, could support a reasonable jury's
verdict in his favor. Lightning Lube, Inc. v. Witco Corp., 4
F.3d 1153, 1166 (3d Cir. 1993). While the qualified immunity
defense is frequently determined by courts as a matter of law, a
jury should decide disputed factual issues relevant to that
determination. Deary v. Three Un-Named Police Officers, 746 F.2d
185, 190-92 (3d Cir. 1984); Abdul-Akbar v. Watson, 4 F.3d 195,
201 (3d Cir. 1993); White v. Walker, 950 F.2d 972, 976 (5th Cir.
1991); see also Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir.
1994) (holding that while qualified immunity should normally be
decided by the court, where facts concerning the availability of
the defense are disputed "jury consideration is normally
required"), cert. denied, 115 S. Ct. 721 (1995).
The district court applied the qualified immunity
inquiry separately to each of the three steps of the search. The
court first addressed whether the defendants had reasonable
suspicion to turn the routine traffic stop into an investigative
stop, then whether the length of the detention was reasonable for
an investigative stop, and finally whether the results of the
investigative stop provided them with probable cause to conduct a
search of the car.
11
The initial stop passes constitutional muster because
Karnes was speeding. United States v. Kikumura, 918 F.2d 1084,
1092 (3d Cir. 1990). But it is clear that Karnes has presented
sufficient evidence to present a prima facie case that his Fourth
Amendment rights were violated by the subsequent investigative
stop, see Berkemer v. McCarty, 468 U.S. 420, 439 (1984),
detention, see United States v. Place, 462 U.S. 696, 709 (1983),
and search, see United States v. McGlory, 968 F.2d 309, 343 (3d
Cir.), cert. denied, 113 S. Ct. 415 (1992). Accordingly,
defendants can only prevail as a matter of law if they are
shielded by qualified immunity.
A.
Karnes claims the police did not have reasonable
suspicion to conduct an investigative stop after pulling him over
for violating the speed limit. He correctly observes that the
police needed a separate justification to detain him beyond the
time necessary to issue a citation for speeding, Berkemer, 468
U.S. at 439, and he contends that such justification was lacking.
In order to analyze defendants' claim of qualified
immunity on whether there was reasonable suspicion, we must
determine whether the law was clearly established at the time of
the alleged violation, and we must also decide whether, given the
law at that time, a reasonable officer could have believed the
conduct to have been reasonable. See Dixon v. Richer, 922 F.2d
12
1456 (10th Cir. 1991).0 The first part of this test is purely a
question of law, but the latter part of the test requires
0
Karnes presents a preliminary argument that qualified immunity
cannot apply in this instance because it would create a logical
inconsistency. He argues:
If the plaintiff proved defendants did not
act as would a reasonable officer under the
circumstances, it would be impossible for
defendants to be immune on the ground that
the same reasonable officer would believe the
defendants' actions were constitutional.
Where the law is clearly established and
proof of the elements of the plaintiff's
prima facie case would defeat the immunity,
no qualified immunity defense is available.
Appellant's Br. at 36. This argument has superficial appeal but
in fact misconstrues the nature of qualified immunity, and in any
case has been rejected by the Supreme Court.
In Anderson v. Creighton, 483 U.S. 635, 643 (1987), the
plaintiffs argued that "it is inappropriate to give officials
alleged to have violated the Fourth Amendment--and thus
necessarily to have unreasonably searched or seized--the
protection of a qualified immunity intended only to protect
reasonable official action. It is not possible, that is, to say
that one 'reasonably' acted unreasonably." The Court rejected
this argument. The Court's response was that qualified immunity
seeks to measure whether the officer was reasonable in his
understanding (albeit mistaken) of what was lawful under the
Fourth Amendment. Id. at 643-44. There is no conflict in saying
a police officer who acted unreasonably nevertheless reasonably
(but mistakenly) believed his conduct was reasonable.
Karnes cites Lippay v. Christos, 996 F.2d 1490 (3d Cir.
1993), and Deary v. Three Un-Named Police Officers, 746 F.2d 185
(3d Cir. 1984), to support this argument. Deary, however, was
decided before Anderson, and therefore is supplanted by the
Supreme Court's subsequent determination of the question. Lippay
is not apposite because it was a case where to prevail plaintiff
had to demonstrate the officer submitted an affidavit containing
statements he knew to be false or about which he was reckless as
to their falsity. Lippay, 996 F.2d at 1504. Lippay provides an
example of cases where proof of the Fourth Amendment violation
necessarily proves a lack of reasonableness as to the existence
of that violation, a situation very different from the one facing
Karnes here.
13
application of the law to the particular conduct at issue, an
inquiry which may require factual determinations if the nature of
the conduct is disputed. Pritchett v. Alford, 973 F.2d 307, 312
(4th Cir. 1992).
1.
Defendants are entitled to qualified immunity as a
matter of law if the applicable law was not clearly established
at the time of the alleged constitutional violation. Anderson,
483 U.S. at 640. The level of abstraction at which the
plaintiff's rights are articulated is of considerable importance.
Id. at 639. The Supreme Court has stated,
The contours of the right must be
sufficiently clear that a reasonable official
would understand that what he is doing
violates that right. This is not to say that
an official action is protected by qualified
immunity unless the very action in question
has previously been held unlawful; but it is
to say that in the light of pre-existing law
the unlawfulness must be apparent.
Id. at 640 (citation omitted). Obviously, the law was
established in 1990 that searches or seizures in violation of the
Fourth Amendment would violate Karnes's rights, but there was no
case directly on point with circumstances identical to those
facing Skrutski and Kowalski. The right Karnes seeks to
vindicate is the right to be free from investigative stops unless
reasonable suspicion is present.
All parties agree, and we concur, that until defendants
actually searched Karnes's car the stop was in the nature of a
"Terry" stop for purposes of the Fourth Amendment. In Terry v.
14
Ohio, 392 U.S. 1, 21 (1968), the Supreme Court held that certain
investigative stops by police officers were permissible without
probable cause, as long as "in justifying the particular
intrusion [into Fourth Amendment rights] the police officer [is]
able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably
warrant that intrusion." See also Berkemer, 468 U.S. at 439
("[T]he usual traffic stop is more analogous to a so-called
'Terry stop' than to a formal arrest." (Citation omitted)).0
The Supreme Court had refined the Terry standard prior
to 1990, holding the types of articulable facts that can provide
reasonable suspicion cannot include "circumstances [which]
describe a very large category of presumably innocent travelers,
who would be subject to virtually random seizures" were the
circumstances accepted as reasons for the investigation. Reid v.
Georgia, 448 U.S. 438, 441 (1980) (per curiam). By contrast, in
United States v. Sokolow, 490 U.S. 1, 9 (1989), the Court, after
considering the factors presented, stated that "[a]ny one of
these factors is not by itself proof of any illegal conduct and
is quite consistent with innocent travel. But we think taken
together they amount to reasonable suspicion."
0
We note that in Dunaway v. New York, 442 U.S. 200, 212 (1979),
the Court observed that a Terry stop must be limited in duration,
and that a more lengthy detention "must be based on consent or
probable cause." (quoting United States v. Brignoni-Ponce, 422
U.S. 873, 881-82 (1975)). The stop here was not really the
typical traffic stop, which is usually very brief. We treat the
length of detention issue below in part III.B.
15
Reid and Sokolow are in apparent tension with each
other with respect to the ability to use circumstances or factors
that appear innocent to find reasonable suspicion. The tension
disappears, however, when the facts of the two cases are
compared.0 In Reid, the defendant was observed moving through an
airport concourse within several yards of another man who was
carrying a shoulder bag identical to defendant's. 448 U.S. at
439. The defendant occasionally looked backward in the direction
of the second man. Id. A DEA agent approached the defendant,
who was at that point standing outside with the other man. The
agent requested their airline ticket stubs and identification,
which they supplied. The tickets indicated they had stayed in
Fort Lauderdale for just one day. The two men consented to a
search, which uncovered cocaine. Id. The observed actions of
the two men, the Court concluded, were not enough to present
reasonable suspicion that they were engaged in criminal activity.
Id. at 441.
In Sokolow, the defendant was stopped at Honolulu
Airport by DEA agents, who found a large amount of cocaine in his
carry-on luggage. 490 U.S. at 3. In contrast to Reid, the DEA
agents had the following information before approaching the
defendant:
(1) he paid $2,100 for two airplane tickets
from a roll of $20 bills; (2) he traveled
under a name that did not match the name
0
The inquiry into the existence of reasonable suspicion is fact-
specific. See Terry v. Ohio, 392 U.S. 1, 15 (1968) (observing
the protean quality of police encounters with individuals).
16
under which his telephone number was listed;
(3) his original destination was Miami, a
source city for illicit drugs; (4) he stayed
in Miami for only 48 hours, even though a
round-trip flight from Honolulu to Miami
takes 20 hours; (5) he appeared nervous
during his trip; and (6) he checked none of
his luggage.
490 U.S. at 3. In Sokolow, the Court observed the necessity of
considering "the totality of the circumstances" in order to
evaluate the existence of reasonable suspicion. Id. at 8. The
Court apparently attached particular significance to defendant's
payment in cash, to the length of his trip, and to the agents'
reasonable belief that he was traveling under an alias. Id. at
8-9. The Court focused on factors which it perceived as "out of
the ordinary." Id. at 8. Reid and Sokolow, taken together,
demonstrate it is not enough that law enforcement officials can
articulate reasons why they stopped someone if those reasons are
not probative of behavior in which few innocent people would
engage--the factors together must serve to eliminate a
substantial portion of innocent travelers before the requirement
of reasonable suspicion will be satisfied. This is a totality of
the circumstances test. United States v. Tapia, 912 F.2d 1367,
1370 (11th Cir. 1990).
Reid and Sokolow were decided before the events in this
case. Together, they provide sufficient guidance to reasonable
officers to make clear that detaining Karnes would only be
permissible under the Fourth Amendment if they had reasonable
suspicion and to show the requirements of the reasonable
17
suspicion standard. We hold the law was clearly established for
purposes of qualified immunity.
2.
Since the law was clear at the time of the alleged
violation, defendants can be granted qualified immunity only if
their conduct in detaining Karnes, even if in violation of the
Fourth Amendment, was a violation a reasonable officer could have
committed. We must determine the propriety of the district
court's grant of judgment as a matter of law "in part by
analyzing the evidence adduced by plaintiff as to the conduct of
the defendants." Brown v. Grabowski, 922 F.2d 1097, 1111 (3d
Cir. 1990), cert. denied, 501 U.S. 1218 (1991). We are seeking
to determine whether a sufficient dispute about a material fact
exists "to require submission to a jury or whether it is so one-
sided that one party must prevail as a matter of law." Id.
(quoting Anderson, 477 U.S. at 251-52).
The standard for granting or denying a motion for
judgment as a matter of law does not change in the qualified
immunity context. Cf. Pritchett, 973 F.3d at 313 (observing the
summary judgment inquiry does not change in the qualified
immunity context). Karnes will prevail on this issue if "a
reasonable jury could find that the unlawfulness of their actions
was so 'apparent' that no reasonable [police officers] could have
believed [their] actions were lawful." Lee v. Mihalich, 847 F.2d
66, 69 (3d Cir. 1988).0
0
The issue in Lee arose in the context of a motion for summary
judgment rather than a motion for judgment as a matter of law. We
18
The district court held there were sufficient
undisputed facts known by the defendants to provide them with
reasonable suspicion to detain Karnes: (1) Karnes drove a blue,
mid-sized Honda; (2) the car had high mileage for its age; (3)
the car had a citizens band radio and radar detector; (4) the car
was licensed and registered in Florida; (5) Karnes had a Florida
license with a Florida address; (6) Karnes was driving on an
interstate highway; (7) the car contained numerous maps,
including one open to the Bronx; (8) Karnes consented to the
search of certain items but then refused further consent; (9)
Karnes requested to go to the rest room; (10) Karnes showed
knowledge of drug interdiction programs; (11) the car contained
fast-food wrappers; (12) the car contained brown and green
"vegetable matter" of various sizes. Tr. of Civil Jury Trial at
5-156 to 5-157 (May 17, 1994). The district court further
observed:
The Plaintiff's mood changed. The Plaintiff
was extremely nervous. That Plaintiff's car
had a car phone antenna. Defendant Skrutski
testified that Plaintiff's luggage and attire
were inconsistent with Plaintiff's statements
[concerning] the length and purpose of his
trip. Defendant Skrutski also testified to
difficulty in obtaining the results of the
license and registration check. Plaintiff
himself stated that his license tags had been
previously transferred to his car and that on
a previous occasion an officer had difficulty
obtaining details.
have made clear, however, that "the standard for granting summary
judgment mirrors the standard for a directed verdict." Rotondo v.
Keene Corp., 956 F.2d 436, 442 (3d Cir. 1992) (quotations
omitted).
19
Id. at 5-158.
Karnes contends the district court erred in finding
reasonable suspicion present and in holding that all of these
factors were indisputably present. We agree. We cannot agree
with the district court's finding that all the factors it listed
were undisputed. Viewing the facts in the light most favorable
to plaintiff, a reasonable jury could believe that only certain
factors were present, and that Karnes's mood did not change, he
was not nervous, he had proper luggage and attire, there was no
car phone antenna, and the maps were not open to the Bronx. We
find the factors here insufficient as a matter of law to provide
reasonable suspicion for defendants to have detained Karnes
beyond the point needed to issue the speeding citation, and that
there was no objectively reasonable basis for defendants to have
believed they did have reasonable suspicion.
Aside from the "vegetable matter," the factors listed
by the court did not provide any basis for the police to
distinguish Karnes from the vast majority of innocent drivers on
our interstate highways. We are cognizant that under the
totality test it is possible that "objective facts, meaningless
to the untrained," can provide the basis for reasonable
suspicion. United States v. Cortez, 449 U.S. 411, 419 (1981).
But the Fourth Amendment does not allow random searches of
persons travelling the nation's highways. The factors the
district court listed, like those to which the police testified,
are simply too ordinary--too much like the factors in Reid and
not enough like those in Sokolow. As we noted above, reasonable
20
suspicion cannot include "circumstances [which] describe a very
large category of presumably innocent travelers, who would [then]
be subject to virtually random seizures." Reid, 448 U.S. at 441.
The test for reasonable suspicion is a totality of the
circumstances inquiry. Although we do not analyze each factor in
isolation, we will describe these factors separately in order to
explain why they were insufficient in the aggregate.
Karnes was the Northeast Field Engineer for Financial
Securities Information Systems, and his principal responsibility
was the installation of computer systems throughout the Eastern
seaboard. Karnes bought his car used with 80,000 miles on it, a
fact he had explained to defendants. In any case, high mileage
on a car is not by itself suspicious, nor is the presence of maps
in a car. Clearly many people innocent of any wrongdoing will
have cars with high mileage on them, and maps (whether or not
open to the Bronx) are also used by huge numbers of innocent
people.
Defendants argue "that mid to full size cars and cars
which are average looking or common and which easily blend in
with traffic are frequently used to transport drugs." Appellee's
Br. at 4. This argument seeks to turn the central notion of
reasonable suspicion on its head. Reasonable suspicion cannot be
based on a factor that makes the person searched look more like
an ordinary, innocent person; there must be reliance on factors
that provide reason to suspect criminal behavior. Were we to
accept this argument, we would be granting permission to conduct
21
investigatory stops of people deemed "suspiciously normal." The
Fourth Amendment forbids granting such permission.
Karnes's car contained a citizens band radio and a
radar detector. The presence of these communications devices
alone does not support reasonable suspicion. See United States
v. Hernandez-Alvarado, 891 F.2d 1414, 1419 (9th Cir. 1989). Drug
couriers may use these items, but they are devices used primarily
by people innocent of any illegal activity and alone create no
suspicion of criminal activity.
The district court found it significant that the car's
license and registration were from Florida because Florida is a
"known drug center." Other courts have held that out-of-state
plates are consistent with innocent behavior and not probative of
reasonable suspicion. See, e.g., United States v. Ramos, 42 F.3d
1160, 1163 (8th Cir. 1994), cert. denied, 115 S. Ct. 2015 (1995);
Tapia, 912 F.2d at 1371. Florida is not the only "known drug
center," and the mere fact that Karnes was from Florida cannot be
a factor supporting reasonable suspicion.0 Presumably the vast
bulk of people with cars registered in Florida are not drug
smugglers, and they have a right to travel to Pennsylvania.0
0
The Court of Appeals for the Sixth Circuit observed that drug
enforcement agents might label almost any city in the country as
a major narcotics distribution center. United States v. Andrews,
600 F.2d 563, 566-67 (6th Cir.), cert. denied, 444 U.S. 878
(1979).
0
We do not suggest that geography is an irrelevant factor for
this totality of the circumstances test. Certainly in United
States v. Sokolow, 490 U.S. 1, 3 (1989), it was relevant that the
defendant was travelling to and from Miami since Miami was "a
source city for illicit drugs." But the entire state of Florida
cannot properly be termed a source of illicit drugs, and the mere
22
The fact that Karnes granted consent to Skrutski to
search some items and then refused to give consent to additional
searches cannot support a finding of reasonable suspicion.
Karnes's right to refuse to consent falls within the Fourth
Amendment's core protection against unreasonable searches and
seizures. Karnes's exercise of that right cannot be penalized by
adding his refusal to consent as a factor in this inquiry, even
if, as defendants testified, Karnes became argumentative and
difficult.
We have no reason to doubt defendants' assertion that
drug couriers on occasion will request to go to the rest room,
hoping thereby to gain an advantage or to dispose of illegal
drugs.0 But both parties agree Karnes requested to go to the
rest room only after the police decided to use the drug dog to
inspect his car. We need not decide whether a request to go to
the rest room could provide reasonable suspicion in other
circumstances because it could not have here: Karnes's request
came after the point when the police were required to have
fact that Karnes' car was registered and licensed in Florida is
an extremely weak factor, at best.
0
Kowalski explained:
And to me the training I've had is, drug
couriers, when they're stopped by the police,
sometimes they have back up people following
them. And what we were taught is, not to let
them go off the interchange. Because what
the general rule is, among the couriers, is
to go off the next interchange . . . [or]
rest area. That's where the -- person that
is escorting you will meet you. So, it's for
the safety of the police officer . . . .
App. at 536-37.
23
reasonable suspicion. Most innocent people who have traveled for
any length of time will, of course, make a similar request out of
physiological necessity. We intimate no view as to whether such
a request would be suspicious in some contexts, but it is not
suspicious here.
The penultimate factors relied upon by the troopers
were Karnes's knowledge of drug interdiction programs and the
presence of fast-food wrappers in his car. The latter have
become ubiquitous in modern interstate travel and do not serve to
separate the suspicious from the innocent traveler. Nor do we
understand how mere knowledge of interdiction programs can be
suspicious. Indeed, Karnes's display of such knowledge seems
counterintuitive--if Karnes was trying to hide the presence of
drugs he would scarcely announce his knowledge of drug
trafficking and interdiction procedures. Karnes announced to the
police that he had gleaned his knowledge of the procedures from
having watched a television program. In any case, too much of
the knowledge he displayed is in the public domain (and is well-
publicized by popular television programs) for it to provide a
basis for suspicion.
The last factor is the presence of green and brown
"vegetable matter" on the floor of Karnes's car. Defendants
claim these leaves appeared to be marijuana, thus creating
reasonable suspicion that Karnes was transporting drugs. Karnes
claims these were leaves from a recent camping trip, and that
"[t]here wasn't just a little bit of leaves, there were leaves
everywhere in there." App. at 189-90. Karnes also testified
24
that "[a]t one point Kowalski mentioned the leaves. And he said
that he knew that they weren't marijuana, but that he was going
to use them as probable cause to search my car." Id. at 190. We
review the evidence upon which the district court relied in the
light most favorable to the plaintiff. In that posture it is
clear the jury could reasonably find the police did not really
believe the leaves were marijuana and that they had no reasonable
basis for so believing. Thus, the leaves do not support the
existence of reasonable suspicion, at least for our review of the
district court's grant of defendants' motion for judgment as a
matter of law on qualified immunity.
All of these factors, both individually and
collectively, were insufficient to provide reasonable suspicion
that Karnes was not an innocent traveler. It is possible for
factors, although insufficient individually, to add up to
reasonable suspicion--that is the nature of a totality of the
circumstances test. But we think it impossible for a combination
of wholly innocent factors to combine into a suspicious
conglomeration unless there are concrete reasons for such an
interpretation. We hold that defendants have not demonstrated
the existence of sufficient undisputed facts for us to hold that
they had reasonable suspicion to detain Karnes beyond the scope
of the traffic stop or that a reasonable officer could have been
reasonable but mistaken in the belief that reasonable suspicion
existed. In sum, the defendants cannot receive qualified
immunity on a motion for judgment as a matter of law. A
reasonable jury could resolve the disputed issues of fact in
25
plaintiff's favor, in which case defendants would lack an
objectively reasonable basis for believing reasonable suspicion
was present to detain Karnes.
B.
The district court also held defendants were entitled
to qualified immunity on the defendants' motion for judgment as a
matter of law regarding the length of detention. The Supreme
Court made clear in Terry, 392 U.S. at 19-20, that "in
determining whether the seizure and search were 'unreasonable'
our inquiry is a dual one--whether the officer's action was
justified at its inception, and whether it was reasonably related
in scope to the circumstances which justified the interference in
the first place." Having decided the officers' actions here were
not justified at their inception, we can abbreviate our analysis
of the scope of the detention.
The district court held a reasonable officer would have
believed the detention in this case was not excessive and that
defendants were therefore entitled to qualified immunity
regarding the scope of the Fourth Amendment intrusion prior to
the search of Karnes's car. The court stated defendants followed
a reasonable procedure to dispel their suspicion by employing the
drug sniffing dog and that any additional delay was attributable
to Karnes because he asked the troopers questions, argued with
them, challenged their procedures, and insisted on explanations
as to their actions.
We find the delay of nearly two and one-half hours
sufficiently extreme when viewed in the light most favorable to
26
plaintiff that no reasonable officer would have believed the
detention comported with constitutional requirements, and thus we
hold that defendants are not entitled to qualified immunity on
this issue as a matter of law. The Supreme Court has held that
"the brevity of the invasion of the individual's Fourth Amendment
interests is an important factor in determining whether the
seizure is so minimally intrusive as to be justifiable on
reasonable suspicion." United States v. Place, 462 U.S. 696, 709
(1983). In Place, the Court held a ninety-minute delay before
federal agents used a narcotics detection dog on Place's luggage,
id. at 699, was sufficient "alone [to preclude] the conclusion
that the seizure was reasonable in the absence of probable
cause," id. at 709.
In contrast, we held in United States v. Frost, 999
F.2d 737, 741-42 (3d Cir.), cert. denied, 114 S. Ct. 573 (1993),
that an eighty-minute delay was acceptable.0 We distinguished
Place on the grounds that the agents lacked diligence in pursuing
the investigation while the police in Frost were delayed by the
absence of a drug sniffing dog in the vicinity of the stop. Id.
When viewed in the light most favorable to Karnes, the delay here
was approximately 150 minutes in length from the time Karnes was
stopped until he was released, and was the result primarily of
the defendants' dilatory pursuit of their investigation, not
0
In combination, United States v. Place, 462 U.S. 696, 709 (1983)
and United States v. Frost, 999 F.2d 737, 741-42 (3d Cir. 1993),
provide sufficient clarity in the law for us to hold that the law
was clear for purposes of the first prong of the qualified
immunity analysis.
27
plaintiff's questioning. This length of time is excessive under
the Fourth Amendment given the circumstances of this case.
It appears from the record (viewed in the light most
favorable to Karnes) that defendants used much of the period
between the arrival and use of the dog to attempt to cajole
Karnes into granting them consent. The fact that defendants did
not accept Karnes's refusal to consent, in combination with their
attempt to use his refusal as a factor in creating reasonable
suspicion (see supra part I), shows a misunderstanding about the
purposes of the Fourth Amendment. Karnes does not bear the
burden of justifying his refusal to allow police to invade his
privacy; it is rather the government official who must meet the
constitutional requirements before he can encroach upon an
individual's privacy. The district court's grant of qualified
immunity to defendants on the length of detention issue was
improper.
C.
Karnes also claims the search of the car was invalid
because the police lacked probable cause. The district court
sent the case to the jury on the single factual issue of whether
the narcotics dog had "alerted" to the smell of narcotics in
Karnes's car. Because the jury found it had, the district court
granted qualified immunity to the defendants on the probable
cause issue and entered a verdict in favor of the defendants. We
note that "[t]he automobile exception to the warrant requirement
allows warrantless searches of any part of a vehicle that may
conceal evidence . . . where there is probable cause to believe
28
that the vehicle contains evidence of a crime." United States v.
McGlory, 968 F.2d 309, 343 (3d Cir. 1992) (quotations omitted).
Karnes contends the special interrogatory was improper
because whether the drug dog "alerted" was not the only disputed
question of fact on the existence of probable cause. We
disagree. Notwithstanding the antecedent violations of the
Fourth Amendment defendants may have committed, it is clear that
the drug dog's alert would present probable cause for a search.
See United States v. Massac, 867 F.2d 174, 176 (3d Cir. 1989)
("[P]robable cause to arrest did not exist until the trained dog
reacted affirmatively to the blue luggage . . . .").
IV.
Our decision that defendants are not qualifiedly immune
as a matter of law on the reasonable suspicion and length of
detention issues makes it necessary to consider whether
plaintiff's motion for judgment as a matter of law should be
granted. On this point we must consider the evidence in the
light most favorable to the defendants.0 Karnes is entitled to
judgment as a matter of law if, on the record before us, and
taking the evidence in the light most favorable to the
defendants, a reasonable jury could only find both that the
defendants violated the Fourth Amendment and that they acted
unreasonably in doing so. The district court, of course, denied
plaintiff's motion for judgment as a matter of law.
A.
0
The relevant facts are described above in parts I and III.A.2.
29
We must determine whether a reasonable jury could
decide that a police officer could have formed an objectively
reasonable belief that the "vegetable matter" was marijuana.
Absent the "vegetable matter," we would conclude that Skrutski
and Kowalski lacked reasonable suspicion to detain Karnes.
The defendants do not need to demonstrate that the
material was marijuana in order to receive a grant of qualified
immunity. Butz v. Economou, 438 U.S. 478, 507 (1978) (observing
qualified immunity protects officials who make "mere mistakes in
judgment, whether the mistake is one of fact or one of law"). But
they need to show their mistake was reasonable. Pray v. City of
Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995); see also Abdul-
Akbar v. Watson, 4 F.3d 195, 205 (3d Cir. 1993) (observing the
Supreme Court has stated qualified immunity "provides ample
protection to all but the plainly incompetent or those who
knowingly violate the law") (citing Malley v. Briggs, 475 U.S.
335, 341 (1986)).
As we have noted, in deciding whether a reasonable
police officer could have believed there was marijuana in plain
view in Karnes's car, we view the evidence in the light most
favorable to the defendants. At trial, Skrutski testified as
follows:
Q [on examination by Karnes's attorney]:
Let's talk a little bit about this green and
brown vegetable matter. This was on various
spots -- over the floor of the car, isn't
that right?
A [Skrutski]: That's correct.
30
Q: And it was quite obvious as you looked in
the window you could see it, isn't that true?
A: It was -- it was there. It was visible. I
don't know how obvious it was, sir.
Q: Would you please take a look at page 21 of
your deposition Mr. Skrutski -- line 6.
Question, "Well, are you saying you saw a
couple of leaves or did you see it all over
the interior of the car?" Answer, "It was in
various spots on the vehicle floor."
Question, "Quite obvious?" Answer, "Yes, it
was."
App. at 382-83.
Q [on examination by Skrutski and Kowalski's
attorney]: And there was some discussion in
your testimony [earlier] about a green/brown
vegetable matter. Could you describe that?
A [Skrutski]: It was -- a green/brown
vegetable matter that was -- pulverized.
There were very small pieces of it.
Q: Based upon your training and experience,
did you have any belief [at the time you were
searching the bags Karnes consented to having
you search] as to what it may have been?
A: I suspected that it may have been
marijuana.
App. at 407.
Karnes's testimony presents a different picture of the
appearance of this "vegetable matter":
Q [on examination by Karnes's attorney]:
Okay. Let's talk about these leaves for a
second. Because there is some mention in the
police report of a green brown vegetable
matter in your car. What was that exactly?
A [Karnes]: . . . There wasn't just a little
bit of leaves, there were leaves everywhere
in there. We've driven around all weekend
31
after doing this with the windows down in a
state park. And there were -- the only place
in my car where there wasn't some of these
leaves, was where I had been sitting in the
seat. They were up in the back dash. They
were all over the back seat. They were in
the floor. They were in -- they were in the
driver side floor. Just my seat is the only
place there was no leaves.
. . . .
Q: Okay. And how large were these -- were
these just all crumbled up residue of the
leaves?
A: They were all sizes from that big around
(witness indicates) down to little tiny, tiny
pieces.
App. at 189-90.
We believe this contradictory testimony creates a
genuine issue of material fact, and we cannot say that a
reasonable jury could never believe Skrutski's description and
credit only Karnes's. The presence of drugs in plain view in an
automobile creates probable cause to search, United States v.
Burnett, 791 F.2d 64, 67 (6th Cir. 1986), and can support
reasonable suspicion to conduct a further investigation. While
the troopers were mistaken about the presence of marijuana, on
the basis of this record we cannot say their mistake was
unreasonable as a matter of law.
A jury will have to weigh the defendants' contention
that they believed the "vegetable matter" was marijuana against
Karnes's assertion that not only could no one have thought that
the leaves were marijuana but also that Kowalski expressly stated
he knew the leaves were not marijuana. See supra part III.A.2. A
32
jury could find that the defendants formed a reasonable belief
that the leaves were marijuana, and such a finding would lead to
a determination that the defendants were entitled to qualified
immunity on the reasonable suspicion issue.0 See Pray, 49 F.3d
at 1161 (observing that "many times the jury becomes the final
arbiter of [defendants'] claim of immunity, since the legal
question of immunity is completely dependent upon which view of
the facts is accepted by the jury").0
B.
Although it is not clear from Karnes's brief and notice
of appeal whether he has appealed the district court's denial of
his motion for judgment as a matter of law on the length of
detention issue, we need not decide whether the issue is properly
before us because we would affirm the district court on this
0
Judge Becker dissents on this one issue. Noting that it is
uncontradicted that the material in the car was in fact autumn
leaves, he does not believe that a jury could find that the
defendants formed a reasonable belief that the leaves were
marijuana. Judge Becker would therefore grant the plaintiff's
motion for judgment as a matter of law and remand only for trial
on damages.
0
We are reminded that the qualified immunity defense is designed
in part to avoid chilling appropriate police behavior. As the
Court of Appeals for the Fourth Circuit noted in Gooden v. Howard
County, Md., 954 F.2d 960, 967 (4th Cir. 1992) (en banc):
If every mistaken seizure were to subject
police officers to personal liability under
§1983, those same officers would come to
realize that the safe and cautious course was
always to take no action. The purposes of
immunity are not served by a police force
intent on escaping liability to the
cumulative detriment of those duties which
communities depend upon such officers to
perform.
33
point. At issue is whether a reasonable jury could decide that
the police diligently pursued their investigation, thereby making
the length of the detention acceptable.
There is no direct testimony to rebut Karnes's
contention that the search occurred at 7:00 p.m. and that he was
released at 7:30 p.m. A reasonable jury could not find that the
length of detention was less than 150 minutes. Defendants
produce only weak evidence to justify either the 90-minute delay
between the arrival of the canine unit and its use or the nearly
two and one-half hour total delay. Defendants contend Karnes was
so argumentative they were forced into a lengthy explanation of
their procedure.0 Even though the length of detention may have
been constitutionally excessive notwithstanding defendants'
explanation, a reasonable jury could find that defendants were
reasonable in their belief that the delay comported with
constitutional requirements. Accordingly, this is a jury
0
Trooper Kowalski explained the length of the delay:
Mr. Karnes was so argumentative, I really
didn't want to push the issue into a physical
confrontation. I felt it was best, the
position that we were in along the highway
. . . . Even though there were two of us
there--being that close to the highway,
having to work a [sic] with the dog, having
the left hand tied up with a lead, and then
having to worry about my firearm, which was
on my right side . . . .
And I really didn't want him to have any
ill feelings about the state police. I
wanted him to understand what was going on.
App. at 542.
34
question, and the district court's denial of plaintiff's motion
for judgment as a matter of law on this point was not in error.
V.
Karnes also contends the district court erred by
admitting evidence at trial of his 1985 arrest for allegedly
assaulting his sister and verbally resisting arrest without
violence. The court admitted this evidence under Federal Rule of
Evidence 404(b) to refute Karnes's contention that he suffered
damage from defendants' actions. We review the district court's
admission of evidence of prior bad acts under an abuse of
discretion standard. United States v. Traitz, 871 F.2d 368, 389
(3d Cir.), cert. denied, 493 U.S. 821 (1989).
Defendants argue the evidence was properly admitted
after Karnes testified that the incident in this case diminished
his respect for the police and thus caused him damage. After
applying the balancing test of Federal Rule of Evidence 403, the
district court gave a limiting instruction, admonishing the jury
to consider the evidence only for the purpose of determining
damages.
We have held that evidence of prior bad acts under Rule
404(b) can be admitted when the evidence is probative of a
material issue other than character. Traitz, 871 F.2d at 389. We
see no abuse of discretion here.
VI.
On the issues of reasonable suspicion and length of
detention we will reverse the district court's grant of
defendant's motion for judgment as a matter of law. We will
35
affirm the remainder of the district court's decisions. We will
remand the case to the district court for it to allow the jury to
make a determination of the reasonable suspicion and length of
detention issues and for an assessment of damages as appropriate.
36