On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil Action No. 91-cv-04269).
Before: Becker, Scirica, and Wood*fn* , Circuit Judges
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.*fn1 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, 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.
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 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 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 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.
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 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.*fn2 Defendants 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, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981) (holding that reasonable suspicion requires a "particularized and objective basis for suspecting the particular person stopped of criminal activity").
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, 117 L. Ed. 2d 414, 112 S. Ct. 1168 (1992). The district court had jurisdiction under 28 U.S.C. § 1343 (1988). We have appellate jurisdiction under 28 U.S.C. § 1291 (1988).
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, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985), at the hands of a person acting under color of state or territorial law, Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (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, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). This qualified immunity inquiry is an objective, fact-specific pursuit. Id. ; see also Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986). Defendants bear the burden of establishing the affirmative defense of qualified 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, 130 L. Ed. 2d 627, 115 S. Ct. 721, 115 S. Ct. 722 (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.
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, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984), detention, see United States v. Place, 462 U.S. 696, 709, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (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.
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 1456 (10th Cir. 1991).*fn3 The first part of this test is purely a question of law, but the latter part of the test requires application of the law to the particular conduct at issue, an ...