891 F.3d 1131
9th Cir.2018Background
- In 2011 Elko County Sgt. J. Brad Hester, off duty and in plain clothes, used a key to enter the Jackpot Recreation Center after telling county supervisor Lynn Forsberg he had authority; he led a K-9 drug sniff that included walking the dog into Richard Pike’s locked shared office; no drugs were found.
- Pike filed for and received a temporary then two-month extended protective order (TRO/EOP) in Elko County Justice Court alleging stalking; the justice court found Hester lacked “lawful authority” for the after-hours dog sniff and stated it could not conclude the search was lawful under the Fourth Amendment.
- Pike then sued Hester in federal court under 42 U.S.C. § 1983 for a Fourth Amendment violation and sought to preclude relitigation of issues decided in the justice court.
- The district court applied issue preclusion in part, later granted summary judgment for Pike on the Fourth Amendment claim and denied Hester qualified immunity; this Court vacated and remanded once for briefing but ultimately affirmed.
- The Ninth Circuit majority held the justice court’s Fourth Amendment conclusion is preclusive under Nevada law and that a warrantless, nonconsensual K-9 sniff of a public employee’s private office violated clearly established Fourth Amendment rights in 2011; Hester has no qualified immunity.
Issues
| Issue | Plaintiff's Argument (Pike) | Defendant's Argument (Hester) | Held |
|---|---|---|---|
| Issue preclusion: Does the justice-court EOP preclude relitigation of whether the search violated the Fourth Amendment? | The justice court necessarily decided Fourth Amendment law (lack of lawful authority/consent); preclusion applies. | The justice-court matter was different (stalking), informal, not final on Fourth Amendment; EOP should not preclude federal §1983 claim. | Yes. Nevada law satisfied identity, finality, actual and necessary litigation; the justice court’s Fourth Amendment conclusion is preclusive. |
| Fourth Amendment applicability: Did Pike have a reasonable expectation of privacy in his shared office? | Office is private workplace space; Fourth Amendment applies. | Office was shared and subject to employer control; expectation limited. | Justice court resolved this for Pike; issue precluded and treated as decided in Pike’s favor. |
| Consent: Did Forsberg consent (or authorize) the after-hours dog search? | Forsberg did not give unconditional after-hours consent; testimony supported no consent. | Forsberg authorized searches and told Hester he could search “anytime, day or night”; thus search was consensual/authorized. | Justice court found Forsberg credible and no consent; issue precluded—search lacked lawful authority. |
| Qualified immunity: Was the right violated "clearly established" in 2011 so that a reasonable officer should have known the search was unlawful? | Precedent made clear that warrantless/nonconsensual dog sniffs of a private office are Fourth Amendment searches and unlawful without consent or other justification. | No controlling case directly on point for a consensual K-9 sweep of a shared public office; reasonable reliance on county policy or ambiguity defeats clearly-established requirement. | Yes. Binding Supreme Court and Ninth Circuit precedent (e.g., O’Connor, Ziegler, Place, Caballes) made unlawfulness apparent; Hester not entitled to qualified immunity. |
Key Cases Cited
- Pearson v. Callahan, 555 U.S. 223 (permission to consider qualified immunity steps)
- Harlow v. Fitzgerald, 457 U.S. 800 (qualified immunity standard)
- O’Connor v. Ortega, 480 U.S. 709 (government-employee workplace searches subject to Fourth Amendment)
- Ziegler v. Foster, 474 F.3d 1184 (9th Cir.) (private office search violated Fourth Amendment absent consent)
- United States v. Place, 462 U.S. 696 (dog sniff of luggage in public is not a Fourth Amendment search where officer and dog lawfully present)
- Illinois v. Caballes, 543 U.S. 405 (dog sniff during lawful stop does not implicate Fourth Amendment)
- Florida v. Jardines, 569 U.S. 1 (dog sniff on curtilage constitutes a search when officers/dog intrude on protected area)
- Chappell v. Mandeville, 706 F.3d 1052 (9th Cir.) (use of binding precedent in qualified-immunity analysis)