Farm Labor Organizing Committee v. Ohio State Highway Patrol

and sentence a defendant’s We vacate a district resentencing where

remand it calculated “explain how not

court does defen to the respond of loss

the amount objections factual specific

dant’s in the included of calculation

methods v. States 397; United see

PSI.” Id. Cir.2002); (6th

Osborne, 291 F.3d Orlando, 281 F.3d v. States

United v. Conra Cir.2002); (6th States United Cir.2000). Even 528, 541

do, F.3d a de change may resentencing

where required sentence, we have

fendant’s findings of “issue written court

district objec to the defendant’s respond

fact that the resolu “publish and the PSI”

tions to matters factual contested

tion of its calculation” basis

formed There Monus, at 397. 128 F.3d

remand. sentence Tarwater’s

fore, would vacate I resentencing so remand facts contested resolve court can

district the amount its calculation explain under to Tarwater attributable

loss

Sentencing Guidelines. ORGANIZING LABOR

FARM al.,

COMMITTEE, et

Plaintiffs-Appellees, PATROL, HIGHWAY STATE

OHIO Defendants-Appellants. al.,

et 00-3653.

No. Appeals, Court States

United Circuit.

Sixth 4, 2001. Dec.

Argued: 17, 2002. Filed: Oct.

Decided

Equal Foundation, Columbus, Justice OH, for Plaintiff-Appellee.

Todd R. Marti (argued briefed), Of- fice of Attorney General, Corrections Litigation Section, Columbus, OH, for De- fendant-Appellants. KENNEDY, MOORE,

Before COLE, Judges. Circuit OPINION MOORE, Judge. Circuit Defendant-Appellant, Trooper Kevin Kiefer, appeals the district court’s denial of qualified immunity in § 1983 action (1) alleging that he targeted the individual plaintiffs for questioning concerning their immigration solely status based upon their origin race national in violation of the Equal Protection Clause of the Fourteenth Amendment, (2) unreasonably de tained the for cards four days without clause in violation of the Fourth Amendment.1 For the reasons below, stated we AFFIRM the denial of qualified immunity plaintiffs’ as to the Fourth and Fourteenth Amendment Furthermore, claims. we AFFIRM the district court’s grant partial summary judgment plaintiffs to on the issue of Fourth Amendment liability and RE MAND for further proceedings consistent opinion. with this

I. BACKGROUND A. Background Factual Plaintiffs Aguilar Jose and Espar- Irma Kimberly M. Skaggs (argued and (“plaintiffs”) za lawfully are per- admitted briefed), J. Mark Finnegan (briefed), manent resident aliens. Sunday, On opinion, In this we only Trooper address any consider appellate relating issues to the appeal. Kiefer's claims Although on the No- other defendants in this action. See Ahlers v. tice Appeal Defendants," refers to "all Joint Schebil, (6th Cir.1999) F.3d ("J.A.”) Appendix Appellants’ at brief (explaining that issues not raised in briefs on only Trooper discusses Kiefer's defense of waived). appeal be deemed qualified immunity. We therefore decline to they paid had for the responded that were 26, 1995, Esparza and Aguilar March cards, they paid Illi- had all Chicago, meaning re- home from their driving Ohio, family mem- nois, Toledo, interpreted visit Kiefer quired Trooper to fees. to an Ohio State trip, an During plaintiffs’ response as indication bers. (“OSHP”) trooper, Kevin Patrol likely forged, the cards and re- Highway were Esparza and Kiefer, Aguilar stopped green tained the cards authentication. headlight. After the faulty driving with a Trooper Kiefer unable contact over, ap- Trooper Kiefer pulled plaintiffs authenticity plain- verify INS to car and asked plaintiffs’ proached the cards the time of the green tiffs’ en- pro- Aguilar license. Aguilar’s driver’s see counter, Sunday, it was a so he because Illinois a valid Trooper Kiefer with vided plaintiffs and let the green took the cards then or- Trooper Kiefer license. driver’s issue the “did not go. placed of the car and Aguilar out dered cards, receipt green for their cruiser. of his the back him they expect could tell them when them thereafter, immediately a second Almost authentic, indeed if the cards were back from trooper A arrived. cruiser OSHP inquire if tell them where or how a drug-sniffing cruiser walked the second about the seizure.” any questions around the outside dog Org. v. Ohio Farm Labor Comm. State “alerted,” indicating that dog The vehicle. Patrol, F.Supp.2d Highway contained narcotics.2 the vehicle (N.D.Ohio 2000). Esparza then asked trooper second The (Monday), day next The trooper She offered for identification. day, attorney. paralegal an That retained card, but Illinois identification the OSHP be- Arturo Ortiz contacted her wallet reportedly grabbed trooper Esparza, but was un- Aguilar half of trooper her card. removed because he lacked to obtain assistance able step out of the Esparza to then instructed the incident. On regarding information the back was locked vehicle. She again contacted OSHP Thursday, Ortiz Aguilar. next to Trooper Kiefer’s cruiser Kiefer re- Kiefer. spoke to see demanded Trooper Kiefer then personally that green turned the cards green cards of card. The Aguilar’s green initial the sei- day, days four after same and Esparza and were valid Aguilar both why it deposition asked his zure. When of this encounter. in force at the time cards, verify green the long so to took cards, the examining green the After had explained that he tak- Trooper Kiefer Esparza where Aguilar and troopers asked and days from work was en a few off cards and green their they had obtained during that time. to reach INS unable the The paid for them. had whether Kief- plaintiffs contend The attempting inquire to were troopers were, of a part, product the actions er’s forged, since were whether the documents ques- the practice by and OSHP pattern sale. not offered for cards are immigration motorists about tioning En- speak limited Esparza and Aguilar Hispanic ap- of their on the basis status however, the and believed glish, record, appears From the pearance. they had asking whether troopers were its Traffic They particularly fees. required processing paid the OSHP — drugs. carrying dog tiffs were had 2. It was later determined error, plain- and neither alerted (TDIT) and Drug (1) Team Interdiction the OSHP dering refrain ques- from —be- gan taking a more active role in immigra- tioning motorists about their immigration tion enforcement 1995. Pursuant to this status absent consent or reasonable suspi- role, troopers OSHP have been known to cion upon based objective facts, articulable inquire into immigration motorists’ status (2) from seizing refrain immigration docu- during stops. routine traffic When these ments so,” without “lawful doing cause for inquiries trooper lead OSHP to con- (3) and provide effective substitutes for clude that an individual be an illegal any immigration documents seized. Id. at immigrant, trooper will contact Border Patrol detain the suspect until 17, 1998, August On the district court the Border Patrol arrives. Pursuant certified the class under Federal Rule of practice, “the OSHP has detained hun- 23(b)(2). Civil Procedure Farm Labor dreds of motorists who were suspected Org. Comm. Ohio Highway State Pa- be illegally in United States following trol, (N.D.Ohio 1998). 184 F.R.D. 583 On stops; detention, routine traffic such in all September 1999, the district court is- likelihood, precipitated by was answers sued an order granting summary judg- given questions regarding the motorists’ defendants, ment to all except Trooper Farm, immigration status.” Org. Labor Kiefer, Kevin class’s Fourth Comm., F.Supp.2d at 735. Although Amendment claims. The court granted the OSHP maintains that it does not do so motion of Aguilar Espar- frequently, troopers sometimes seize alien za for summary judgment against Trooper

registration suspected illegal cards im- the claim migrants and them deliver to federal au- Kiefer had unreasonably detained their thorities. green cards for four days after the March 26, 1995, stop. The court found that ques- History B. Procedural tioning regarding immigration status, how- This case brought as a action class ever, did not offend the Fourth Amend- (the “class”) lawsuit. plaintiff class ment, so long place as it took pursuant to composed migrant workers claim who lawful traffic stops duration of that the OSHP has violated their constitu- stops these was not beyond extended tional rights by interrogating about them time required to complete legitimate status, their immigration and, in some purposes of a stop. traffic The court cases, confiscating immigration documents, found that the questioning of Aguilar and on the Hispanic basis of their appearance. Esparza place took police after The class’s initial motion for a preliminary perform cause to a search for injunction enjoin practice to this was de- narcotics, based upon the alert of the drug nied prejudice, without because none of dog. detection Consequently, ques- the the plaintiffs named had ever been Aguilar of tioning Esparza and regarding stopped, and the class therefore lacked their immigration status did not violate the standing. Farm Org. Labor v. Comm. Fourth Amendment. The district court Patrol, Ohio State Highway F.Supp. also dissolved the preliminary injunction it (N.D.Ohio 895, 1997). The class sub- 8,1997. issued on December sequently amended its complaint to add plaintiffs Aguilar Jose and Irma Esparza, The class subsequently moved for recon- who were stopped the OSHP. The dis- of September sideration the 8th order. trict granted court then part the class’s The class asserted that September the 8th request for a preliminary injunction, or- order failed to address a number of mat- Finally, the at 741. Id. rights. tional injunctive for motion ters, including its summary judgment granted district court VI, of class- status the Title under relief the with connection all defendants under to relief injunctive for claims wide claims, the class because relief Title VI Amendment, for class’s and claims Fourth sufficient nexus demonstrate a of failed to Clause Protection Equal under the provided to funds federal between Amendment. Fourteenth at activity. Id. challenged and the OSHP 2000, court 20, the district April On 743. for reconsideration motion granted Labor Farm part. it in and denied part II. ANALYSIS The court Comm., 728. F.Supp.2d

Org. standing for lacked class that found A. Jurisdiction relief, because injunctive class-wide Forsyth, 472 U.S In Mitchell v. only stopped been had named 86 L.Ed.2d . find a sufficient the court did once held that deni (1985), Supreme Court subjected to they would be likelihood of on the basis summary judgment als of Id. in the future. again practices similar extent that such immunity, to the qualified v. Angeles City Los (citing 730-33 at of law, are immedi of turn on issues orders 1660, 75 95, 103 S.Ct. Lyons, or “collateral under the appealable ately (1983)). The court found L.Ed.2d v. Cohen Bene articulated der” doctrine have Esparza did Aguilar and 541, 69 Corp., 337 U.S. Indus. Loan equal damages on an to sue for ficial standing (1949). Pursu 93 L.Ed. at 730. theory, Id. however. protection doctrine, appellate federal to ant denied court then The district hear interlocu jurisdiction have courts judgment summary motion for Kiefer’s legal question “the concerning tory appeals grant- immunity, and upon qualified i.e., given whether a immunity, qualified motions for Esparza’s Aguilar’s ed clearly established violates set of facts against Trooper judgment summary Park, 183 Forest City v. law.” Mattox The claims. protection equal on their Cir.1999). Conversely, 515, 519 F.3d Esparza Aguilar found court immunity may not be a denials make evidence to sufficient presented appeal insofar interlocutory reviewed tar- Trooper Kiefer case that prima facie appeal simply wants “a defendant regarding investigation geted them evi determination court’s district the basis solely on immigration status their particular permit is sufficient dence at 737. The Id. Hispanic. being Johnson after trial.” of fact finding Trooper Kief- concluded court further 304, 314, 115 S.Ct. Jones, 515 U.S. race- any legitimate had failed offer er (1995). purposes For the 132 L.Ed.2d investigation. explanation neutral therefore, we assume appeal, of this sum- denied also court Id. true, and of the facts plaintiffs’ version im- upon qualified mary judgment based facts, plain whether, given such supe- ask Trooper Kiefer’s to certain of munity Kief tiffs have demonstrated Aguilar’s with in connection rior officers rights clearly established their er violated against them Esparza’s claims Amendm and Fourteenth Fourth under the indiffer- capacities for deliberate individual ents.3 Esparza’s constitu- Aguilar’s ence because Fourth Amendment issue not have argues that we do

3. The dissent of plaintiffs' accepted version not Kiefer has appeal on defendant's jurisdiction to consider 532

B. of al rights of which a Standard Review person reasonable ” would Dickerson, have known.’ 101 F.3d We review de novo a district (quoting 1158 Christophel v. Kukulin summary judgment court’s denial of (6th sky, 479, 61 F.3d Cir.1995)); 484 see qualified immunity grounds, because the Saucier, also 121 S.Ct. at 2156. For a of whether qualified determination immu “ right clearly established, to be con ‘[t]he nity applicable is to an official’sactions is a right tours of the must be sufficiently clear question McClellan, of law. Dickerson v. that a reasonable official would understand 1151, Cir.1996). 101 F.3d Sum ” he is doing what violates right.’ mary judgment proper only when there City Cincinnati, Russo v. 1036, 953 F.2d dispute is no as to a question material (6th Cir.1992) (quoting Anderson v. fact and the moving party is entitled to a Creighton, 635, 639, 483 U.S. 107 S.Ct. judgment as a matter of law. Fed. 3034, (1987)). 97 L.Ed.2d 523 56(c). “Although it R.Civ.P. need not be the case that ‘the very action According to the doctrine of in question has previously been held un qualified immunity, “government officials lawful, ... light of pre-existing law performing discretionary gener functions ” apparent.’ unlawfulness must be Id. ally are liability shielded from for civil Anderson, (quoting 640, 483 U.S. at damages insofar as their conduct does not 3034). S.Ct. As Supreme Court has clearly statutory violate established or con recently explained, “officials can still be on rights stitutional of which a reasonable notice that their conduct violates estab person would have known.” Harlow v. lished even in law novel factual circum Fitzgerald, 800, 818, 102 S.Ct. — Pelzer, stances.” Hope U.S. -, 2727, (1982). Qualified 73 L.Ed.2d 396 2508, 2516, S.Ct. 153 L.Ed.2d 666 immunity involves a two-step inquiry. (2002). “Although earlier cases involving First, the court considers “[t]aken whether ‘fundamentally similar’ provide facts can light in the most party favorable to the especially strong support for a conclusion asserting injury, ... alleged facts established, that the clearly law is they are [that] show officer’s conduct violated a necessary not to such a finding.” Id. Katz, right.” constitutional Saucier v. 150 L.Ed.2d Equal C. Protection (2001). If the court a constitu finds demonstrated, tional violation has been allege Plaintiffs that Trooper Kiefer vio- must then consider whether the violation rights lated their under the Equal Protec- “ ‘clearly involved established constitution- tion Clause the Fourteenth Amendment brief, disagree. the facts. We his only question mines of 'evidence sufficien- clearly i.e., dispute states that he cy,' not, "does not party which may, may facts a the facts found Appel- District prove Court.” be able to at trial.” 515 U.S. at Morever, Br. at parties lant’s even if the example, 2151. For we would not facts, agreement were not in on the we jurisdiction still have appeal over Kiefer's if his jurisdiction have legal would argument decide the merely plaintiffs were that the can- question whether, qualified immunity i.e., prove he seized their cards. — assuming version of the facts to Such "[I] didn't do it” defense would true, have shown a present violation problem. Johnson Id. at clearly of their Nevertheless, established constitutional S.Ct. 2151. Johnson does not rights. merely Johnson preclude that we establishes purely legal our review of questions, jurisdiction portion lack over "a of a district given such as whether a alleged by set of facts that, summary judgment though court's order would demonstrate a constitu- case, 'qualified immunity’ entered in a deter- tional violation. protec- Fourth Amendment pendent of the con- investigation for them by targeting searches seizing against tion unreasonable status and immigration cerning Avery, 137 v. States Hispanic United seizures.” of their because cards their Cir.1997). (6th Similarly, found F.3d court district The appearance. Court, in Whren v. United Supreme evidence the sufficient presented plaintiffs the discrimi- States, that an officer’s ques- for targeted confirmed they were to show a course pursuing status for immigration natory motivations about their tioning appear- Equal Protec- Hispanic rise to give can of of action solely because Trooper are sufficient ance, claim, the OSHP there and that even where tion a race-neu- justify the to articulate suspicion of objective failed indicia Kiefer plaintiffs. the questioning Amend- tral reason under the Fourth actions officer’s Trooper Kief- denied therefore court The ment: based summary judgment motion er’s agree petitioners with ofWe course immunity and qualified of defense

upon his en- prohibits selective the Constitution to the summary judgment partial granted on consider- the law based forcement of liability. of the issue But the constitu- race. such as ations quali- is entitled that he contends intentionally objecting to tional basis for undisputed the immunity because fied of laws is discriminatory application plain- inquiries into that his show facts Clause, the Fourth not Protection Equal by were motivated status immigration tiffs’ play Subjective intentions Amendment. un- speaking difficulties probable-cause ordinary, role in no contends he which derstanding English, analysis. Amendment Fourth for the reason race-neutral legitimate taken. investigative steps 517 U.S. (1996). Therefore, plain if the

L.Ed.2d subjected to were tiffs can show Violation 1. Constitutional their race unequal treatment Trooper Kiefer’s assessing of an other course ethnicity during the first deter immunity, we of claim suf that would be stop, lawful traffic wise facts, light in the viewed whether mine of a violation ficient to demonstrate show plaintiffs, favorable most United Clause. Equal Protection Cf. plaintiffs’ constitutional of the violation F.3d Montero-Camargo, States Dickerson, The 101 F.3d at rights. banc) Cir.) (en (holding 1122, 1135 Kiefer sin allege that precluded principles equal protection their immi into inquiry them out for gled as a relevant appearance Hispanic of use Hispan of their status on basis gration individual Amendment for Fourth factor a lawful during the course appearance ic denied, cert. requirement), suspicion ized chal plaintiffs do stop. The traffic 211, 148 L.Ed.2d 889, 121 S.Ct. for a stop validity of their initial lenge the (2000). they assert Nor do faulty headlight. ex has Supreme Court permissible exceeded questioning alleging selective claimant that a plained Fourth stop under scope criminal facially neutral enforcement Nevertheless, this court Amendment. challenged that the must demonstrate laws Protection Equal recognized, “[t]he has a discrimi “had practice enforcement law pro Fourteenth Clause motivated that it was natory effect and inde- protection degree citizens vides 534 discriminatory purpose.”4

a Wayte v. available.” Village Arlington Heights v. States, 598, 608, United 470 U.S. 105 S.Ct. Metro. Corp., Hous. Dev. 252, 429 U.S. (1985). 1524, 84 L.Ed.2d 547 “To establish 266, 555, 97 (1977). S.Ct. 50 L.Ed.2d 450 discriminatory case,, effect in a race “[A]n invidious discriminatory purpose claimant must show that similarly situated may often be inferred from totality individuals of a different race were not facts, the relevant including fact, if it is prosecuted.” States v. United Armstrong, true, [practice] that the bears more heavily 456, 465, 1480, 517 116 U.S. S.Ct. 134 on one race than another.” Washington v. (1996). A L.Ed.2d 687 claimant can dem Davis, 229, 242, 426 U.S. 2040, 96 S.Ct. 48 discriminatory by onstrate effect naming a (1976). similarly individual situated who was not This framework applied has been in a through investigated the use of statisti number of cases in this and other circuits cal or which other evidence “address[es] involving allegations of discriminatory po question the crucial of whether one class is See, lice practices. enforcement e.g, Unit being 'differently treated from another Bullock, ed 896, States v. 94 F.3d 899 class that is otherwise similarly situated.” Cir.1996) (applying selective enforcement Police, 612, Chavez v. Ill. State 251 F.3d test to criminal defendant’s claim that offi (7th Cir.2001). 638 Discriminatory pur cer tended to escalate traffic stops of pose can by be shown demonstrating that “ young black drug into investiga males ... ‘decisionmaker selected or reaf tions); Bell, United 820, States v. 86 F.3d particular a firmed course of action at least (8th Cir.) 823 (holding that defendant was of,’ in part merely of,’ ‘because spite ‘in required to demonstrate discriminatory ef its upon adverse effects identifiable ” fect to sustain defense theory group.’ Wayte, 610, 470 U.S. at 105 police bicycle enforced (quoting headlight 1524 law S.Ct. Personnel Adm’r of only against offenders), Feeney, 256, denied, Mass. v. 442 black 279, cert. 99 2282, (1979)). 955, 372, 519 U.S. 117 S.Ct. 60 L.Ed.2d 870 Deter S.Ct. 136 L.Ed.2d (1996); mining whether Anderson, official action motivat United States by 450, (6th Cir.) ed intentional discrimination F.2d 453-54 “demands (applying selec inquiry sensitive into such prosecution tive circumstantial framework to defendant’s and direct evidence of intent be claim that singled he was out police 4. We note record contains no indica "In its more pronouncements recent on laws that the employs explicit tion OSHP racial classifications, based on racial Supreme racially-motivated criteria or admits to deci Court has started 'from premise making. sion made, If showing such could be explicitly distinguish [l]aws that between indi- would not need to estab grounds viduals on racial fall within the core similarly lish existence aof situated class Equal of [the Protection prohibi- Clause's] " investigated. that was not See City Brown v. Ovalle, tion.' F.3d (quoting at 1105 Oneonta, 329, (2d Cir.2000) 221 F.3d Johnson, 900, 905, Miller v. 515 U.S. ("[I]t necessary plead is not the existence of 2475, (1995)). 132 L.Ed.2d 762 Where similarly non-minority situated group when criteria, adopts explicit state racial strict challenging policy a law or that contains an scrutiny automatically will applied, even in denied, classification.”), express, racial cert. the absence of discriminatory evidence of pur- U.S.-, 122 S.Ct. 151 L.Ed.2d — pose. Wayte, 470 U.S. at 610 n. 105 S.Ct. (2001); Ovalle, United States v. cf. 1524; Cromartie, 541, Hunt v. (6th Cir.1998) F.3d 1104-05 (holding (1999) 143 L.Ed.2d 731 unnecessary that it is for criminal defendant ("When racial explicit, are classifications no three-prong establish test for discrimina inquiry legislative into purpose is neces- grand jury tion in where there is selection sary.”). race). direct evidence of exclusion based upon Trooper Kiefer ... testified that prior check for felonies when background for a denied, Hispanic found arrest), passengers hiding he un- cert. 499 U.S. following his blanket, 729, der a he called the Border Pa- 1633, 980, 113 L.Ed.2d 111 S.Ct. trol, but that if he found people white 2062, 936, 111 114 L.Ed.2d S.Ct. 500 U.S. blanket, a hiding under he would not. (1991). involved Many of these cases 467 Sgt. Elling likewise testified that he equal protection § claims similar not call regard- would the Border Patrol in plaintiffs presented those junless ing a motorist [ [“][he] would Chavez, 251 F.3d at 635- instant case. See they probably think that would be His- discriminatory purpose/dis (applying in panic nature.” And Pahl suit criminatory effect test class action admitted that she once had contacted racial classi alleging police that state used the Border Patrol coming after across detain, deciding stop, fications in whom to Hispanic two men whose car had broken laws); enforcing search in traffic down, but that she wouldn’t do the same Schubert, 303, v. 205 F.3d Gardenhire for a white man. (6th Cir.2000) prosecu (applying selective (citations omitted). J.A. at The court alleging po § claim that tion test to also cited additional circumstantial evi- racially made motivated decision lice discriminatory dence of intent. The court investigation against theft interra pursue ninety percent noted that over of OSHP’s Florence, couple); City cial Stemler v. immigration inquiries Hispanic concerned Cir.1997) (applying 126 F.3d appears court motorists. The also to have § prosecution test to 1983 claim selective plaintiffs’ argument “[g]iven credited police plaintiff arrested be alleging training defendants’ admitted lack of in the lesbian), they a cause believed she was illegal immigrants, identification of denied, cert. only question on which to a reasoned basis (1998). 140 L.Ed.2d 936 ... immigration motorist about status 2000, order, April In its the district Hispanic appearance the motorist’s cou- plaintiffs court determined Hispanic ethnicity.” pled with indicators of presented prove sufficient evidence to The district court also J.A. 240-41. requisite prima facts for a case of facie provides that “TDIT observed officers under the selec intentional discrimination immigration questions a related with list prosecution framework. at 239 tive J.A. translations, along Spanish with their but (“I find that have satisfied their no that such translations there is evidence burden....”). review prima facie After any languages.” other provided are record, initially court ing the the district Finally, court J.A. at 241. discussed had advanced determined stop Troop- of a traffic in which videotape support sufficient a factual evidence pulled containing er Kiefer over a car “ finding that ‘the decision makers Hispanic “driving individuals for three discriminatory pur case acted with [their] limit.” slightly speed above the J.A. at ” pose.’ (quoting McCleskey J.A. at 238 During stop, questioned Kiefer 279, 292, 107 Kemp, 481 U.S. their passengers the driver and two about (1987)). The court noted that immigration status even after the individu- circum range the record contained a presented als valid state identification finding supporting stantial evidence such after Kiefer had decided not to cards and Perhaps significantly, speeding ap- of intent. most citation. The court issue deposition testimony pears accepted plaintiffs’ court cited to have charac- supporting an tape officials: terization of the other OSHP circumstances, cisely they the individuals the vehicle the same inference that immigration their would not refer someone who was white questioned about “were (i.e., Hispanic appearance). not of Hispanic the basis of their solely status nothing appearance, because about J.A. at 243-44. court The district noted were in the suggested conduct finding supported by addi- indeed, Trooper country illegally; Kiefer tional “inferential evidence of a discrimina- prepared to release [the driver] had been tory practice,” fact that including the long as license cleared.” J.A. at [his] so “most motorists ... [who were] asked Hispanic- about their cards were looking” and defendants’ misinformation discriminatory prong,

As to the effect lack of training concerning and what facts that bur- “[t]he the district court observed show, give immi- suspicion rise to reasonable of pre- plaintiffs den rests on gration evidence, violations. J.A. at 244. that ponderance of the were similarly differently than situated treated Because this is an interlocu at 238. The court non-minorities.” J.A. tory appeal, we do not consider whether considered, rejected, argu- defendants’ plaintiffs’ evidence is sufficient presented ment that “no evidence thus far present genuine issue for trial as to the Hispanic indicates that motorists are treat- underlying factual elements of their selec non-Hispanic differently ed than motor- i.e., tive enforcement whether claim — court ists.” J.A. at 243. The concluded plaintiffs’ support evidence could a finding that evidence was sufficient to Trooper actually target Kiefer did similarly permit finding situated plaintiffs part Hispanic because of their non-Hispanic motorists were treated dif- appearance or that not OSHP does ferently, observing that investigate non-Hispanic motorists who

Plaintiffs have introduced direct evi- similarly are plaintiffs.5 situated to the Hispanic Johnson, dence that motorists are treat- Under 515 U.S. at differently ed than white motorists. jurisdiction we lack interlocutory Kiefer, Sgt. Elling, appeal qualified immunity of a denial of that, experi- Pahl all testified review the district court’s determination ence, they Hispanic plaintiffs would refer motor- presented have sufficient ev when, in pre- prove ists to the Border Patrol idence to underlying or basic sufficiency 5. Since we decline to address the Hispanic, tion violations are which conflicts plaintiffs' underly- of evidence to show the with the district court’s determination that ing factual elements of a selective enforce- nearly immigration investigations all are initi- claim, ment we likewise do not consider the against Hispanic ated motorists. It seems propriety partial grant of the district court's therefore, apparent, that the record is not as summary judgment plaintiffs of to the on the Thus, one-sided as the district court believed. liability. issue of Fourteenth Amendment note, however, We although jurisdiction we are without to re- cursory that even a review of grant summary judgment view the court's reveals, example, record plaintiffs to the on the Amend- Fourteenth deny selecting and other OSHP officials mo- issue, grant summary ment we do think the immigration torists for interviews based judgment likely premature, sug- and we Hispanic appearance. If a trier of fact be- gest that the district court reconsider this testimony, negate lieved this it would the in- event, any decision on remand. the defen- plaintiffs’ equal protection tent element of challenge grant dant remains free to claim. The record contains other factual dis- summary judgment on the Fourteenth putes example, as well. For Kiefer maintains following Amendment claim a final order only deposition in his about half of the from the district court. questions concerning immigra- motorists he (1996). L.Ed.2d The district court constitu- support of their alleged facts Mehra, plaintiffs presented 186 F.3d concluded that the claim. Williams tional banc) (observ- Cir.1999) (en 685, 690 from a trier of sufficient evidence which jurisdiction lacked appellate court ing defendants, fact could find that the includ- relating questions factual to consider Kiefer, acted a dis- ing defendant with conduct). knowledge defendants’ criminatory purpose and did not initiate are evidentiary sufficiency Questions of non-Hispanic immigration investigations of merits from the separate and distinct similarly were motorists who otherwise claims, of such and review plaintiffs. situated to the We therefore appeal “can interlocutory questions on assume, deciding, purposes for the without appellate amounts of consume inordinate appeal prove that the can of this court to appeals by requiring time” Johnson, underlying these factual claims. to as- pretrial record comb a voluminous (“[T]he 319, at 115 2151 515 U.S. S.Ct. Johnson, 515 evidence. sess take, appeals simply given, court of can 316, This limita- 115 S.Ct. 2151. U.S. at the facts that the district court assumed jurisdiction applies appellate our tion on summary judgment....”). when denied force to evidence sufficien- particular with in- a defendant’s relating to cy questions Perhaps realizing this limitation tent, a defendant acted as whether such appealable on inter range on the of issues id.; discriminatory purpose. a See with locutory appeal, defendant Kiefer does not 1536, Testa, 1544-45 v. 97 F.3d McCloud plaintiffs have made a dispute that Cir.1997) (“[T]he (6th example that discriminatory prima showing facie of ef illustrate what chose to Johnson Court Instead, discriminatory purpose. fect and prevent to cases it wanted kinds of “neat properly appeal limits his to Kiefer exercising jurisdic- appeals from courts of relating of law” to abstract issues intent....”). “[T]o tion over focused alleged the facts immunity i.e., whether — a is or is not whether there determine demonstrate a violation such a matter issue of fact about triable 317, at clearly established law. Id. may require intent] defendant’s [as omitted). Kiefer (quotation record, nu- pretrial with reading a vast that, assuming plaintiffs have argues first affidavits, depositions, conflicting merous investiga targeted that he them for shown This fact discovery materials. and other ap Hispanic of their part tion in because Mitchell, means, greater compared with alleged by pearance, the facts Johnson, 316, at 515 U.S. delay.” them targeted that he do not demonstrate Thus, in in- our review 5.Ct. ethnicity. apparent solely of their because question of case is confined to the stant undisputed facts argues that Kiefer Dis- “all of the conduct which the whether in at least that he was motivated reveal sufficiently supported trict Court deemed En inability speak to part by plaintiffs’ summary judgment met purposes for a valid race- alleges he glish, which ‘objective legal the Harlow standard ” Pelletier, initiating immigration neutral basis Behrens v. reasonableness.’ 313, 834, investigation.6 116 S.Ct. 516 U.S. Healy the TDIT admit- reply Lieutenant his brief merit.

6. The defendant also asserts in bears no ration- drug-sniffing dog provid- presence ted the of narcotics that the alert of the drivers likelihood that the inquire al relation to the a reason to into immi- ed race-neutral immigrants, con- illegal and the defendant gration inspect alien are status and resident Appellant's point reply his brief. argument cedes this We think this is without cards. opinion on our United the encounter at will. As our relies earlier dis- Cir.1995), Travis, F.3d cussion of the relevant case law makes States denied, clear, 116 S.Ct. rt. this circuit and our fellow courts of ce (1996), propo for the appeals consistently applied have the se- civil-profiling plaintiff must sition that Wayte lective enforcement framework of targeted solely or she was prove that he Armstrong involving cases non-con- Travis, or her race. because of his police sensual encounters. see no rea- We that “consensual searches circuit held depart approach son to from this in the Protection Clause when Equal violate the instant case. The selective enforcement solely based on racial they are initiated require plaintiff framework does not legal Id. at 173. The considerations.” show the defendant had no race-neu- appear standard articulated Travis does tral challenged reasons enforce- place plaintiff the burden on the to show Instead, enough ment decision. it is played a role that no race-neutral motives challenged show that the action was taken police Specifi challenged in the conduct. part “at least in ... ‘because of its ad- ” cally, explained the Travis court group.’ verse effects an identifiable ... decide to where “officers interview Wayte, 470 U.S. at 105 S.Ct. 1524 reasons, many suspect for some of which (quoting Feeney, 442 legitimate are and some of which [are] 2282). race[,] on .... the use of race in the based

pre-contact stage give any does not rise to requirement The “sole motive” an protections.” constitutional Id. in anomaly equal nounced Travis is an in law, protection applied and should

Nevertheless, think it we would be outside the factual pure narrow context of inappropriate apply to Travis to the factu ly only legal consensual encounters. The presented in al circumstances the instant authority by cited the Travis court for its progeny, and its particularly case. Travis analysis Supreme “sole motive” was the Avery, v. 137 F.3d 343 United States Healthy City in Mt. Court’s decision Cir.1997), equal protection addressed chal School District Board Education v. lenges police to consensual interviews of of Doyle, travelers, 429 U.S. 97 S.Ct. airport allegedly which were ini (1977), a First upon racial tiated based criteria. This cir However, Healthy retaliation case. Mt. cuit used the in has never Travis standard racially merely presence announced that alleging discriminatory cases con of an impermissible by give duct officers toward an individual motive will not rise to a who detained, already has constitutional if been who is violation the state can free challenged therefore not to leave and terminate show that decision would Instead, Reply appeal, supported by any Br. at 3. the defendant con- and it is not tends that because the Vienna re- Convention record, evidence in the so we decline to con- quires foreign nationals to be of informed points sider it. The defendant to no evidence right to communicate with a consular practice in the record to show that it is the of country officer of their home if are ar- provide the OSHP to such information imprisoned, rested or the defendant had foreign any arrested nationals. Nor is there racially-neutral inquire reason to into the evidence in the record that plaintiffs’ immigration namely, to de- status — requirements considered the of the Vienna termine whether information consistent with deciding pursue Convention when whether to given. the Vienna Convention needed to be investigation plaintiffs’ immigration an of the argument appears This to have been raised for the first time in reply the defendant’s brief status. Healthy Mt. improp- argue, still regardless made have been Arlington Heights, that his race-neutral Healthy Id. at 286-87. Mt. motive. er reasons have caused him to investi- liability to in- would constitutional not limit does gate plaintiffs regardless any dis- purpose impermissible an in which stances action; criminatory may have existed. motive an adverse motive for was the sole of whether Kiefer’s question an into whether requires inquiry simply discriminatory allegedly played motive for” motive was “but impermissible determinative role the decision to inves- challenged decision. The cause of the however, tigate plaintiffs, is a factual analysis applies multiple-motive same at trial. dispute best suited resolution proof that a protection arena: equal a racial- part “motivated decision was Moreover, we with disagree .... discriminatory purpose shift[s] ly plain that the Trooper Kiefer’s contention establishing burden [defendant] difficulty speaking English necessari tiffs’ have resulted same decision would that the ly a valid race-neutral basis for establishes purpose not impermissible even had initiating immigration investigation. Heights, 429 Arlington been considered.” Ortiz, v. Kiefer relies on United States 555; also n. see at 270 97 S.Ct. U.S. 891, 897, 2585, 45 L.Ed.2d 95 S.Ct. Underwood, 222, 232, Hunter v. (1975), Supreme which Court identi (1985); L.Ed.2d “inability speak English” fied one’s (2d Senkowski, F.2d Howard many factors that be taken into one Cir.1993) Healthy/Arlington (applying Mt. deciding prob account in whether there is analysis to claim Heights multiple-motive private cause to search a vehicle for able strikes). peremptory race-based use of Kiefer, illegal According aliens. Ortiz Indeed, clearly has Supreme Court conclusively that officers law establishes Clause explained Equal that the Protection fully may immigra select individuals for that require plaintiff prove a to “does not investigations upon their inabili tion ra- solely action rested on challenged the ty speak English. to discriminatory Arlington cially purposes.” provides guidance little We think Ortiz 265, 429 at 97 S.Ct. Heights, U.S. a Fourth in instant case. Ortiz was in Thus, that Travis is fact we believe involving automobile case ap- Supreme with the Court’s inconsistent checkpoint Patrol at a Border searches multiple- other proach Healthy in Mt. miles from the U.S.-Mexican less than 100 is- involving equal protection cases motive in did not respondent border. The Ortiz reason, that we decline to ex- sues. For claim and raise a Fourteenth Amendment in Travis the standard articulated tend En- of one’s the Court mentioned use ad- beyond the narrow factual situation ability as a basis for selec- glish-speaking in dressed that case. only laundry in a list of factors tion once deciding in Thus, might be used whether even if Kiefer is cause to refer an automo- that he there is the record reveals correct The inspection. Id. Ortiz basis for initi bile for further possessed some race-neutral had no occasion consid- plaintiffs, this Court therefore ating investigation implications fully equal protection him to sum er fact alone would not entitle targeted for motorists are immunity as raised when mary judgment on investigations on the basis immigration long as the can demonstrate familiarity English a their lack of with partly motivated discriminato he was Moreover, Supreme Court course, language. can ry Of purpose. an against extending logic ing “pure has cautioned intent to discriminate was a largely upon to situations issue of fact” that turned of border enforcement cases border, credibility govern- where the assessments and demeanor ob- remote from the 364, 111 servations. Id. at S.Ct. 1859. immigration policing may ment interest See States v. compelling. be less United Considering light Ortiz of Her Marbinez-Fuerte, 543, 564 n. nandez, we think that an officer’s rebanee (1976); 49 L.Ed.2d S.Ct. upon suspect’s inability speak English a Brignoni-Ponce, accord United States factor, may proper be a race-neutral but 873, 881, U.S. questions pretext that fact as to are neces (1975) (noting that in the sarily present where officer acts based context, prac- certain Fourth Amendment suspect speaks Span the fact that a permitted at the border in may tices be ish due to the close connection between importance of part “because of the Spanish a language specific ethnic ... governmental interest stake and the community, large migrant such as the la practical polic- absence of alternatives community light bor in Northwest Ohio. In border”). ing the principle, may genuine of this Supreme Court did consider the fact issues of material exist as to whether equal protection implications using lan- Trooper plaintiffs’ Kiefer’s reliance on ina guage bility as a basis for selection Hernan- speak English legitimate was a York, dez pretext v. New S.Ct. race-neutral reason or a mere (1991). 1859, 114 L.Ed.2d 395 In Hernan- discrimination. The district court conclud dez, a gov- permitted the Court cautioned when ed that evidence ernment official uses as a criterion for inference that OSHP officers focus mo ability speak par- a person’s English-speaking ability largely decision torists’ be closely language Hispanic ticular that is associated cause it is an “indicator[ ] specific group, ethnicity.” with a ethnic that fact J.A. at 241. The district court plausible, though particularly emphasized not a neces- “raise[ ] the fact that “the might sary, language provides inference that be a TDIT officers with a list of immi in fact were pretext gration questions English along for what race-based” related translations, Spanish Id. at 1859. In with actions. but there Hernandez, prosecutor struck several is no evidence such translations are criminal Hispanic provided any languages.” individuals from a defen- in other J.A. contrast, petit jury. Among the reasons ar- 241. dispute dant’s OSHP officers by prosecutor they question only the for the strikes Spanish-speaking ticulated jurors bilingual were Elling Dep. (noting was the fact motorists. See at 35 in English Spanish might questioned persons there- that OSHP has Polish accept interpreter’s spoke fore not account of who Engbsh”). ap “broken This testimony prosecution’s pears of some of the a dispute to be factual best suited to witnesses, trial, key Spanish-speaking. who were resolution at and therefore it is not a proper trial found that the criminal granting summary judg The court basis for prima defendant had shown a facie case of ment to the defendant on immu nity. but challenges, race-based concluded prosecutor’s proffered reasons were 2. the Relevant Whether Law Was legitimate. approved' trial The Court Clearly Established conclusion, explaining that court’s prosecutor’s

question expla- Trooper that, of whether the Kiefer contends genuine pretext nation was or mere mask- even if his did actions constitute violation rights, plaintiffs’ constitutional these would not have known that Kief clearly not established at the rights were er’s actions violated the constitu par encounter. In challenged time of the rights. tional ticular, cir argues the defendant that this disagree We with the defendant’s char recognize the existence of the cuit did acterization of the state of the law 1995. plaintiffs until our rights asserted Travis have While been the first case Travis, 170, decision in 62 F.3d which was to reach the equal pro merits of such an 1996, August than handed down more claim, expressly acknowledged tection we in question.7 four months after the events case, in a 1992 en banc United States v. section, foregoing As noted in the Travis Taylor, equal protection that an claim Equal pro held Protection Clause upon could be based evidence that law police selecting hibits a officer from an enforcement targeted officers minorities airport traveler for consensual interview for consensual interviews on the basis of solely on the basis of the traveler’s race. (6th 572, Cir.) (en race. F.2d 578-79 points Id. at 174. The defendant to our banc), denied, 952, cert. 506 U.S. 113 S.Ct. observation Travis that we had ad (1992). Taylor racially dressed the of whether moti issue explained: court give vated consensual encounters could A ... argu- review of the briefs and equal protection “only rise to an claim once ments of counsel before the trial court unpublished opinion.” before Id. at initially before this court[ ] disclosed (citing Jennings, United States v. 1993)). Jan.13, charge no ... appellant WL Cir. Since been for a published opinion the first on the issue was selected consensual interview American, question, handed down after the events in because he was an African argues, the defendant reasonable officer that the law enforcement officers at the brief, reply particularized justify 7. In his Kiefer further need reason exist to it.” Martinez-Fuerte, suggests whether, that United States v. Id. The Court did not consider if the 49 L.Ed.2d 1116 upon Border Patrol relied racial ethnic (1976), uncertainty created in the law as to making stop, classifications in such ac- target appropriate whether it was individu- Equal tions would violate the Protection immigration inquiries part als for based in Clause. Consideration of this issue was ren- Hispanic appearance. The Mar- unnecessary by dered the Court's conclusion Court held that it was not a viola- tinez-Fuerte that the Border Patrol had offered conclusive tion the Fourth for officials at any suggestion evidence "to refute that the checkpoint selectively a fixed border to refer extensively apparent Border Patrol relies area, secondary inspection motorists to a ancestry standing referring Mexican alone in "even if it be assumed that such referrals are secondary motorists to the area.” Id. at 563 largely apparent made on the basis of Mexi- n. 96 S.Ct. 3074. The Martinez-Fuerte ancestry.” can Id. at We Court, moreover, holding limited its to the argument unavailing think this to the defen- particular checkpoint circumstance of a at the dant. was a Fourth Amend- Martinez-Fuerte border, Mexican and noted that "[d]ifferent case, Equal ment an Protection case. The if, example, considerations would arise for merely Court's decision in Martinez-Fuerte put apparent were on reliance Mexican ances- whether, purposes considered for the of the try checkpoint operated at a near the Canadi- Amendment, Fourth the Border Patrol was 17, an border.” Id. at 564 n. 96 S.Ct. 3074. required to articulate an individualized basis challenged stop Given that the occurred near beyond suspicion apparent the motorists' Toledo, Ohio, a location much closer to the nationality justify stop. The Court's border, holding Canadian border than to the Mexican upon was based its conclusion that presented by support because the we think intrusion the check- offers little Martinez-Fuerte minimal!,] point stop "sufficiently argument. was ... no Kiefer's 542 implemented a Airport general opinion justify grant- the Travis does not

Memphis primarily tar- practice pattern ing qualified immunity to Trooper Kiefer. minorities for consensual inter- geted Furthermore, already as we have ob- views, incorporated or that served, right clearly for a to be estab- component drug racial into the courier lished, “it need not the case that ‘the profile. factually supported A record of very in question previously action has been charged conduct in the in- such official ” Russo, held at unlawful.’ 953 F.2d given have to due stant case would rise Anderson, 640, (quoting at U.S. process equal protection constitu- 3034). Rather, pre-existing S.Ct. law cognizable by this implications tional right must be such that existence of the is court. vein, apparent. id. In See we have added). (emphasis Id. We think this state- recognized that is a “[i]t venerable rule that, 1992, at least ment demonstrates Equal under the Protection Clause that clearly established the Consti- the state not choose to enforce even in prohibited targeting tution racial law facially differently against neutral laws dif- investigations, regardless of enforcement portions citizenry solely ferent out whether an encounter was lawful under arbitrary of an desire to discriminate the Fourth Amendment. Stemler, against group.” one F.3d Moreover, Taylor, even before we had 874; Hopkins, see also Yick v.Wo applied the selective enforcement frame- L.Ed. 220 a criminal claim that work to defendant’s (1886) (“Though the law itself be fair on its prior- for a improperly he was selected face, impartial appearance, yet, in if it felonies-background check after his arrest. applied by public and administered au- Anderson, F.2d at 453. The claim thority eye with an and an unequal evil closely in advanced Anderson resembles hand, unjust practically so as to make claim the instant case illegal persons in discriminations between allegedly insofar as both claims involve circumstances, discriminatory police pursuing motives for similar material to their particular investigation justice course of of a rights, equal the denial of is still already police suspect who is detention. prohibition within the of the constitu- find a Although tion.”). we did not selective en- principle long This has been held Anderson, our dis- forcement violation prosecution to condemn selective of sus- cussion that case left little doubt that we pected offenders based their mem- permitted would the claim had the have bership particular group. gener- in a See satisfy defendant able to his burden been ally Wayte, 470 U.S. 105 S.Ct. Supreme under the Court’s selective en- conclude, therefore, 84 L.Ed.2d 547. We Wayte, (citing forcement test. Id. 470 that a reasonable officer at the time of the 10, 609, 1524). U.S. at 608 n. We in question events would have known that think any Anderson demonstrates that am- embarking Constitution forbade biguity in the law of selective enforcement investigation particular of someone for a before Travis was confined the limited person’s offense on the of that basis race. police factual context of consensual en- conclusion, we determine that have already counters. Since we deter- would, alleged by facts if airport mined that the encoun- consensual proved, establish that Kiefer violated their case, inapposite ter cases are to the instant rights Equal any ambiguity we in the under Protection Clause conclude law relating by targeting immigration-related before to consensual encounters them 1. The basis of their race. Constitutional Violation on the questioning Moreover, legal that the relevant we think pro The Fourth Amendment clearly controlling this case were principles “right people tects the of the to be secure time of the defendant’s at the established houses, persons, papers, in their and ef therefore conclude actions. We fects, against searches and unreasonable correctly court denied district seizures.” The text of the Fourth Amend summary judgment on motion for Kiefer’s protection against ment therefore extends immunity with re- his defense personal proper unreasonable seizures equal protection spect plaintiffs’ to the i.e., effects,” ty, “papers[ as ] as well claims. person. seizures of the United States v. Place, 696, 700-01,103 D. Detention of Plaintiffs’ Green U.S. S.Ct. (1983); Cards 77 L.Ed.2d 110 United States v. Jacobsen, 109, 120-21, appeals the district Trooper Kiefer next (1984) (concluding 80 L.Ed.2d 85 summary court’s denial of his motion for package private detention of sent through qualified immunity on his judgment based subject carrier was “seizure” to Fourth plaintiffs’ to the Fourth Amend- defense requirement). Amendment reasonableness claim, alleged ment which Kiefer’s In general, person, like seizures of the plaintiffs’ green of the four-day detention personal property require prob seizures of The court found cards was unreasonable. Supreme cause. As the has able Court Trooper Kiefer’s initial seizure of the explained: lawful, green cards was because plaintiffs’ confusing Troop- answers to case, ordinary In the the Court has questions er Kiefer’s about whether personal property a seizure of viewed “paid green gave for” the cards rise per meaning within the se unreasonable suspicion probable not reasonable —but it of the Fourth Amendment unless is the cards had been cause believe—that judicial accomplished pursuant to a war- however, concluded, court forged. The upon probable rant issued cause Kiefer’s failure to return the particularly describing the items to be of the changed cards nature seized. law enforcement authori- Where investigative detention seizure from brief probable have cause to believe that ties that could mere reasonable be based contraband or evi- container holds suspicion to a full seizure that could be crime, have not secured a dence of a but

justified only Because by probable cause. warrant, interpreted the Court has Trooper Kiefer did have permit seizure of seizure, for such a the court conclud- cause property, pending issuance of warrant un- ed that his actions were unreasonable contents, if exigencies its examine The district der the Fourth Amendment. of the circumstances demand or some court further determined that no material exception to recognized other the war- claim, in dispute regarding facts were requirement present. rant consequently granted summary judg- Place, 462 U.S. at 103 S.Ct. 2637 plaintiffs. appeal, Trooper ment to the On (citations omitted). isAs the case with requests that we reverse the dis- per- investigative brief detentions qualified immunity, trict court’s denial Ohio, alternative, son, Terry v. ... dismiss'Plain- “[i]n (1968), however, the Appellant’s on the merits.” 20 L.Ed.2d 889 tiffs claims recognized that some Supreme Br. at 19. Court has 544 personal may Determining effects a whether seizure

brief detentions personal property upon less than upon suspicion reasonable permitted based probable pur cause is reasonable for the cause, provided probable falling short poses of the Fourth Amendment involves “minimally intru are that such detentions “First, two-step inquiry. a the Court Place, 462 U.S. at sive.” detaining must determine whether the of (“[S]ome personal detentions of brief ficer has reasonable and articulable sus may minimally be so intrusive of effects picion property that the he wishes to seize that strong Fourth Amendment interests activity.” connected with criminal countervailing governmental interests will Sanders, Second, at 719 F.2d 887. only specific justify a seizure based on reasonable, scope of the seizure must be property facts that the contains articulable in duration and in both intrusiveness. crime.”); contraband or evidence of see Place, 2637; at Saperstein, 723 F.2d also United States v. Sanders, (“If 719 F.2d there is (6th Cir.1983) (explaining that suspicion, reasonable the Court must then personal effects when based “seizures of ascertain whether the detention is reason anything probable on less than cause” are (1) able, is, sufficiently limited permitted only to the extent (2) time, investigative were the satisfy for reasonableness the standards means ‘the used least intrusive means rea investigative de applicable “Terry-type ” omitted)). sonably (quotation available.’ Sanders, tention[s]”); States v. United “Although may an officer have reasonable (6th Cir.1983). In his brief F.2d suspicion person posses to detain a or his appeal, Trooper on Kiefer does not chal investigation, sions for the officer’s investi ruling that lenge the district court’s he did gative detention can mature into an arrest cause to seize the possess probable if or seizure it occurs over an unreason plaintiffs’ green The relevant cards.8 period able of time or under unreasonable therefore, question, is whether the seizure Avery, circumstances.” 137 F.3d at 349. plaintiffs’ green cards satisfied the case, In the instant concede standards for Fourth reason Trooper suspi had Kiefer reasonable applicable personal to seizures of ableness green cion to believe that their cards were probable contend, however, than property based less forged. They that the green cause. seizure of their cards exceeded the valid, Kennedy’s Judge dissent maintains he bases this claim on the district Trooper probable sup- Kiefer did have cause to court’s conclusion that his seizure was green points ported by suspicion. appeal, seize the cards. The dissent out reasonable On argued proba- Trooper only argument Trooper Kiefer that he Kiefer's is that once Nevertheless, suspicion justify ble cause in the district court. reasonable was established to seizure, argument ap- Kiefer did not renew that the initial the Fourth Amendment peal, argument. placed and therefore has waived the no limits on the duration of the ensu- opening reply ing Trooper Nowhere in his brief or brief detention. If Kiefer desired to challenge challenge aspect of the district does district court’s gave ruling, appeal court’s determination that the facts rise the instant would have been suspicion proper legal question to no more than reasonable that the time to do so. The green forged. undisputed cards were It is well estab- of whether the facts demonstrate party's lished that an issue not raised in a that Kiefer had cause to seize the plaintiffs' green directly appeal briefs on be deemed waived. See cards is relevant to Ahlers, test, Although immunity step F.3d at 374. one inso- argue appellate Kiefer does in his briefs that far as it relates to whether the have Place. initial seizure of the cards was shown constitutional violation under

545 property- possession. a seizure of er’s immediate legitimate scope of The Court ex- cause, upon probable plained less than be- that a effectively based “such seizure can Kiefer detained the cards cause person subjected restrain the since he is days they four before returned. were possible disruption the plans of his travel agree. We in luggage order to remain with his or to Therefore, arrange for its return.” Id. the Supreme previously has em- The Court agents’ Court found that the seizure of the brevity that of the invasion phasized “the luggage subjected should be to the same Fourth in- of the individual’s standards of ap- reasonableness that are in important terests is an factor determin- plied investigative per- detentions of the personal prop- seizure ing [a] [of whether 709, son. Id. at 103 Noting S.Ct. 2637. erty] minimally is so intrusive as to be approved that “we have never a seizure of justifiable suspicion.” reasonable person for the Place, 709, prolonged 90 minute at 2637. In 462 U.S. 103 S.Ct. here,” Place, period involved the Court agents DEA seized a traveler’s suit- concluded upon not do airport giving “[could] case an facts so on the facts 709-10, suspicion presented by rise to a reasonable this case.” Id. at narcotics. suitcase contained When S.Ct. 2637. traveler refused to consent to a search of adopt per Rather than se time limita- luggage, agents his decided to hold the upon tion for seizures based less than arrival of a luggage while awaited the cause, probable however, Supreme drug-sniffing dog. agents allowed the consistently “emphasized Court has agents traveler to leave. After the pur- need to consider the law enforcement minutes, ninety luggage held the poses by stop to be served as well as dog luggage arrived and “alerted” reasonably the time needed to effectuate narcotics, thereby supplying contained purposes.” Sharpe, those United States v. probable cause for search. See id. at 675, 685, 699-700, 103 2637. The con- S.Ct. Court (1985); Place, see also cluded, however, ninety-minute 709-10, at 2637. “Much luggage prior detention of the to establish- desirable, ‘bright-line rule’ would probable

ing cause was unreasonable. The evaluating investigative whether an deten- explained that length Court of the “[t]he unreasonable, tion is common sense and respondent’s luggage detention alone ordinary experience govern human must precludes the conclusion the seizure rigid Sharpe, over criteria.” 470 U.S. at probable was reasonable in the absence 1568; Place, 685, 105 S.Ct. see also cause.” Id. 103 S.Ct. 2637. (“[I]n assessing U.S. at 103 S.Ct. 2637 conclusion, reaching this the Court “re- detention, length the effect of the of the ject[ed] suggestion the Government’s police we take into account whether the point at which cause for sei- diligently pursue investigation.”). luggage person’s presence zure of from the Accordingly, heavily the Place Court relied necessary becomes is more than in distant agents the fact that the had advance Terry stop person the case of a arrival, notice of the defendant’s and thus himself.” Id. at 103 S.Ct. 2637. The that, ample acknowledged arrange “had time to for their addi- Court some circum- stances, ... property may investigation thereby seizures of tional could be less intrusive than persons, respon- seizures of but con- have minimized the intrusion on interests,” cluded that this is not the case when the dent’s Fourth Amendment but police luggage Place, detain airport travel- failed do so. 462 U.S. at sanctions, 1304(e), § criminal The Place Court further ob- U.S.C.

S.Ct. 2637. Fourth Amendment “viola- green that the cards are an essential means served by the failure of the was exacerbated tion which resident aliens can eligibili establish accurately respondent inform of agents to ty in employment participation fed they transporting were place to which the Etuk, erally programs. funded See 936 length might he the of time luggage, his of (discussing statutory F.2d at 1437 relevant arrange- dispossessed, and of what provisions). importance the of these Given made for return the ments would be documents, challenged un the seizure investigation dispelled if the luggage the doubtedly subjected to dis 710, 2637. suspicion.” Id. at 103 S.Ct. ruption plans of their travel in order to arrange with the documents or remain case, Turning to the the instant Place, return. Accord 462 at their U.S. presented by the facts we conclude Baro, 708, 2637; United States plaintiffs are sufficient to show (6th Cir.) 563, (holding 15 F.3d 567 n. four-day detention of the Trooper Kiefer’s cash “tanta seizure of traveler’s was upon mere plaintiffs’ green cards based person” a mount to seizure of his where in suspicion was unreasonable reasonable presented officer traveler with “a Hobson’s Supreme duration. Both Court $14,000 property choice: than to a this circuit have found seizures abandon more days than much shorter duration the four plain-clothed stranger obtaining without a to when presented herein be unreasonable receipt flight, in return or miss his forfeit See, less than cause. ticket, in plane his and remain stranded Place, at e.g., 462 U.S. 103 S.Ct. 2637 environs”), denied, foreign cert. excessive); ninety Saper minutes (holding (1994). S.Ct. stein, (holding at hour 723 F.2d 13/é Although Aguilar Esparza were trav airport at unrea luggage seizure of was car, eling by and therefore have had investigative sonable under standards for flexibility itinerary in than an more their Sanders, detentions); at 719 F.2d plane, air traveler who must catch a we three to four hour detention of (holding flexibility think not so this added unreasonable). was the case in luggage As great permit four-day disruption as to a in circuit Place and the cases from this plans. travel involving luggage seizures of from travel Moreover, by plain alleged the facts ers, Trooper think that Kiefer’s seizure we sufficiently tiffs demonstrate plaintiffs’ posses- interfered with both the length of the detention was excessive sory and their green interests cards light purposes of “the law enforcement to liberty uninterrupt in continuing interests by stop be served as well as the time plaintiffs’ green ed with their travels. The reasonably pur needed effectuate those they cards were seized from them while poses.” Sharpe, 470 at traveling Chicago were from their home Although a Moreover, we decline to set defini to Toledo to visit relatives. “ limit, agree tive time we with the district ‘[g]reen play significant cards’ role suspicion per court that reasonable would daily permanent lives of resi [lawful green mit Kiefer to detain the dent Slattery, Etuk v. 936 F.2d aliens].” (2nd. Cir.1991). longer following cards no than until the Failure day, when verified carry per card on his or her could be one’s subject son can has not articulated legal resident alien to INS.9 considerably longer ninety-minute 9. Such a than the detention re- detention would still be request, four months after the initial sei longer detention would why a any reason zure, that returned. undisputed the license be Id. necessary. The been have challenged concluded that could be 349. We the INS facts indicate authenticity action—the refusal to return the license— verify the reached Monday purposes fol was not “seizure” for the green cards on the Amendment, By waiting for four Fourth because the seizure lowing stop. the initial cards, completed long plaintiffs’ green had been before the date of days to return the request. his Id. at 350. The “diligently pursue court ex Trooper Kiefer failed “ Place, plained that ‘a ... property 462 U.S. at seizure investigation.” [his] meaningful occurs when there is some in 2637. The unreasonable by possessory terference with an of the seizure was exacerbated nature individual’s ” property,’ in ... and that the fact that interests undisputed the plaintiffs of the license plaintiffs the how seizure driver’s not make clear to “did taking property held or when ended once the act of his would be long the documents plaintiffs complete. (quoting was Id. at 350 Soldal return them to or how he would Ill., 56, 61, County, 113 J.A. at 210 Cook U.S. they proved if authentic.”10 (1992) (addi Place, 14); 8, 1999, S.Ct. at accord (Sep. Order omitted)). (pointing quotation to tional Once the coun at S.Ct. li lug ty officials had seized and stored the finding in detention of similar facts unreasonable). months, plaintiff a the cense for number of gage already completely dispossessed been assertion, Trooper Kiefer’s Contrary to license, in the possessory of his interests Oosterum, 176 F.3d 342 Fox v. Van complete. and the seizure was Cir.1999), holding in his require does not in the Fox, The defendant’s reliance on Fox plaintiff brought In the favor. officials, misplaced. case is Unlike the county § al- instant against 1983 action Fox, in unreasonably plaintiff plaintiffs in in the the instant they acted re- leging that license, that the alleged showing case have facts fusing to return his driver’s which was inventory green initial seizure of their cards during a valid had been seized constitutionally defective because ex- truck. Id. at 345. search of the permissible scope investiga- challenged in ceeded the plaintiff Fox never Rather, upon prob- less than he tive detentions based initial seizure of his license. able cause. The Fox case did not consider that an unreasonable seizure oc- contended presented in the instant county his the central issue curred when officials refused whether unnecessary stances. We see no need to consider jected Place. It is to consider might imposes Place a shorter time limit a shorter detention also have violated whether seizure, challenged Trooper Kiefer’s since the Fourth Amendment under Place. Both plaintiffs' green cards was detention of the against Sharpe unnecessari- Place and counsel length well in excess of the of time district Terry-style ly setting per se time limits on approve. we court or would decline to do so. seizures. We therefore argues The dissent if the seizure of suggest We we do not mean to note that Place, by plaintiffs' cards is controlled provide plain- failure to Kiefer's complete was then the constitutional violation per constitutes a se tiffs with this information plaintiffs' as soon as the search of vehicle simply We Fourth Amendment violation. completed. purposes of the instant For totality of case, that this factor enters into the hold four-day enough we think it is deciding circumstances to be considered any length exceeded ac- of detention issue minimally was more than upon whether seizure ceptable time limit for a seizure based intrusive. probable less than cause under these circum- namely, permissible scope interpretation wholly of a is inconsistent with case— personal of an individual’s Terry Supreme seizure Court’s clear instruction above, explained effects. As that courts look to the duration of investi- Fox, inquiry. inherently time-sensitive gative personal property detentions of resulted from a valid the initial seizure determine whether such detentions are truck, of the inventory search sufficiently “minimally intrusive” to be impounded after his ar- which had been permissible suspi- reasonable Terry rest; seizure based it was falling cion short of cause. suspicion only. More- upon reasonable Place, 462 U.S. at 103 S.Ct. 2637. over, Fox conceded the plaintiff unpersuasive We also find the defen- county’s detention constitutionality concept contention that dant’s of a the four months that license for his rejected “continuing seizure” was for its return. It is preceded request his D., Supreme Court v. Hodari California therefore, that the surprising, Fox hardly 621, 625, county’s that the contin- court concluded (1991). merely Hodari D. beyond the license ued detention of explained suspect that if a flees after an “change[ the character of ] not time did seizure, initial does not contin- seizure seizure from a reasonable [original] throughout subsequent pursuit. ue unreasonable one.” Id. at 350. one to an (“To say id. that an See arrest is effected contrast, Troop- In have concluded that we by slightest application physical of four-day delay transformed the er Kiefer’s force, despite escape, the arrestee’s is not relatively from a of the seizure character say pur- that for Fourth Amendment detention, investigative which could brief poses continuing during there is a arrest justified by suspicion, mere reasonable period fugitivity.” (emphasis of in origi- requiring probable seizure to a full-blown nal)). Hodari D. addresses situations Place, distinguished Fox court cause. The physical a suspect where control over is closely resembles the instant which more established, and It then lost. does not case, grounds: these precisely for the that a proposition stand seizure provided Place a framework The Court physical at the instant that control ends analyzing when law enforcement established, initially long no matter how property hold someone’s agents government physical officialretains control probable than very short time on less suspect of the thereafter. in- pursue a limited course of cause to vestigation. The instant case involves 2. Whether the Relevant Law Was alleged “seizure” that occurred well Clearly Established Place is point time where after plaintiff here is directly relevant. further conclude that We challenging any action of the defen- rights asserted were over four months after the dants until clearly established the time of the chal license was removed from a Place, lenged detention. United States search, pursuant inventory to an vehicle upon rely, which the claims inventoried, and stored. years decided twelve before the think question. We that case accept the events Id. at 351 n. 6. Were we to Fox, put was sufficient to a reasonable officer interpretation of law en- defendant’s days on notice the seizure for four of officers would be able to detain forcement personal from a property important based effects traveler indefinitely an individual’s upon public alone. Such an on the roads would violate the suspicion reasonable upon interlocutory appeal if less of Fourth Amendment based the district court’s grant partial summary judgment cause. probable than to the plaintiffs on their Fourth Amendment sum, agreed- conclude that we claims. facts of this case reveal that the four- upon

day plaintiffs’ green cards detention Under the pendent ap doctrine of upon less than cause was based jurisdiction, however, pellate a court of Therefore, determine unreasonable. we discretion, appeals may, in its “exercise properly court denied the district jurisdiction over issues that are not inde summary motion for Kiefer’s pendently appealable when those issues judgment qualified his claim of ‘inextricably are intertwined’ with matters immunity.11 over which appellate properly court independently jurisdiction.” has Summary Judgment

3. The Grant Servs., Dep’t Chambers v. Ohio Human to the Plaintiffs (6th Cir.), denied, 145 F.3d cert. Ordinarily, we would conclude 142 L.Ed.2d determining review after whether the our (1998); Brennan, see also 78 F.3d at immu defendant was entitled interpreted ‘inextricably “We have nity, to address the and we would decline with, intertwined’ to mean coterminous partial summary grant district court’s in, subsumed the claim before the court on in judgment plaintiffs. to the This is an Johnson, interlocutory appeal.” Hadix v. above, terlocutory appeal. explained Cir.2000) As we 228 F.3d (quotation omitted). jurisdiction appeal Brennan, have to hear the instant In applied we the summary judgment a of pendent jurisdiction because denial appellate doctrine in qualified legal question analogous present based on “the of circumstances to those immunity” case, an immediately appealable plaintiff ed here. In that the § brought against city order under the “collateral order” doc 1983 claim the Mattox, city claiming trine. 183 F.3d at 519. In con and individual officials that trast, partial summary judgment unconstitutionally “a on the he was detained for twenty-two arraignment. of a ‘final without an liability issue alone is not deci hours 1291,” § sion’ under 28 U.S.C. nor does The district court denied the individual immediately summary judgment as an motion for qualify such order defendants’ upon qualified' immunity. Finding appealable collateral order. Brennan Northville, 1152, 1157 Township genuine dispute concerning F.3d no of fact of (6th Cir.1996). claim, Therefore, granted par we would not the district court also jurisdiction normally summary judgment plaintiff have to consider an tial to the on Judge Kennedy’s any reinstating injunction. dissent voices concerns of order that Fur- court, thermore, existed, by ruling the which even if such an order the about district allegedly appeal. held that Kiefer was re- issue is not relevant to the instant quired only specific provide plaintiffs to the with a lawful issues before us are the green Aguilar plaintiffs substitute for their We are un- constitutional of cards. claims any ruling Esparza against Trooper Sep- able to locate such in the record. Kiefer. In its order, 8, 1999, September granting In its order sum- tember the district court ex- mary judgment ruling concerning plaintiffs plained previous to the on their that its claims, necessity issuing Fourth Amendment the district court the lawful substitutes did preliminary injunction Aguilar Espar- apply dissolved a in which not to the claims of za, they allegation the court had ordered officers to issue because made "no OSHP green troopers green substitute documents when seize OSHP seized cards known to n cards known valid. We are to be not aware be valid.” J.A. 206. Brennan, liability. judicial economy,” any F.3d at interest of since the issue of concluding after reversed 1154. We plaintiffs claim proceedings further on the light facts, when viewed the even judicial would be a waste of resources once plaintiff, did not most favorable it was determined that he could not show a plaintiffs con- a violation establish Id. constitutional violation. Id. at 1156. We went on rights. stitutional by foregoing principles, Guided we partial grant court’s the district review summary judgment plaintiff appropriate pen to the think it is to exercise our that, although city. noted against We jurisdiction appellate dent to address the summary judgment is not a final partial grant partial summary court’s district review, subject “[t]his case decision the issue of judgment to the ... presents special situation which liability. reviewing Fourth Amendment immuni- liability the issues qualified immunity, we have the issue of ty to each other that we can are so related agreed-upon facts of determined together them under the doc- dispose of the instant case demonstrate jurisdiction.” pendent appellate trine of plaintiffs’ Fourth Kiefer violated the pendent concluded that Id. at 1157. We by detaining rights jurisdiction appropriate be- appellate days cards for four without plaintiff cause our determination here, Where, parties do not cause. alleged showing facts a constitu- had not facts, dispute underlying this determi “necessarily and unavoid- tional violation necessarily nation subsumes the merits of ably the issue of whether the decide[d]” plaintiffs’ constitutional claim.12 In his summary judg- plaintiff was entitled brief, Trooper Kiefer admits that he “does ment. Id. at 1158. We observed dispute the facts found the District appellate jurisdiction pendent exercise of Appellant’s Br. at 5. A review under such circumstances best served “the Court.”13 argues disputes dispute that a factual assertion that material 12. The dissent dissent's respect of fact remain with to this issue. as to whether the told still exists they paid Trooper had for the only they green paid cards or had emphasize 13. We that this is not a case in record, necessary fees. Our review of the plain- which the defendant concedes to the however, parties agree purposes reveals that all on the tiff’s view of the facts for the of only. Troop- appeal recognize substance of the conversation between We that after John- son, plaintiffs. er Kiefer and the There is no dis- 515 U.S. at a defen- Trooper interlocutory pute plaintiffs seeking appeal Kiefer asked the of a denial dant they paid green immunity generally qualified whether had for their cards of is well served plaintiffs plaintiff's or that the answered in the affirma- assume the correctness of the they plaintiffs purposes appeal tive. The contend that meant the facts of version of for fees; necessary they paid appeal purely legal had but in order limit the to the they they immunity. specifically qualified have never claimed that issue of Such limited question saying obviously answered Kiefer's concession would not bind the de- only they paid processing plaintiff's fees. The fendant to the account of the facts. different; only remaining question legal then is the But this case is Kiefer did exchange gave merely question plaintiffs' of this rise to not assume the version of whether something suspicion purposes appeal. mere or to reasonable the facts to be true for the of The district court more. concluded that the The record makes clear that there is no dis- plaintiffs’ gave pute parties answers rise to no more than between the to the material as suspicion, given plaintiffs’ relating reasonable ob- facts to the seizure and detention of difficulty understanding ques- plaintiffs' green vious Kiefer's cards. Our decision to dispute pendent appellate jurisdiction, tions. Kiefer does not this exercise our therefore, disagree unique Consequently, conclusion. we with is limited to the circum- parties of the record confirms that the are III. CONCLUSION complete agreement underly- as to the above, For the reasons stated we AF- ing relating facts to the seizure and deten- FIRM the district court’s denial Troop- of plaintiffs’ green Having tion of cards. de- er Kiefer’s motion for summary judgment termined that these facts show a violation as to his qualified defense of immunity. Amendment, of the Fourth noth- there is Furthermore, we AFFIRM the district ing concerning left us to resolve grant court’s partial summary judgment grant summary judg- district court’s plaintiffs on the issue of Fourth Amend- plaintiffs ment to the on the issue liabili- liability ment and REMAND for further Thus, case, ty. the instant inas Bren- proceedings consistent with opinion. this nan, liability “the issues of immunity are so related to each other that KENNEDY, Circuit Judge, dissenting. dispose we can of them together under the appeal This only deals with officer Kief- pendent jurisdiction.” doctrine appellate er’s liability individual Esparza Id. at 1157. Aquilar for events that occurred after compelled by Our decision here is stop a traffic for a burned-out headlight. judicial efficiency interests of underlying Thus, plaintiffs’ while the claims are made pendent appellate jurisdiction doctrine. a part action, as of a class Kiefer is liable subsequent See id. at 1158. A appeal of plaintiffs only for his acts in this inci- partial the district grant court’s of sum- dent. mary judgment following a trial to deter- Plaintiffs do question the legitimacy damages only judicial mine would waste of the initial stop. They traffic do not Any resources. future appeal of the liabil- claim stopped were because of their ity issue would be decided based race. Nor do challenge pro- same record that is before us. We see priety drug search of their vehicle. benefit, therefore, little in postponing inquiry immigration to their status judgment on question. Consequently, cards did not arise until after a pendent we our appellate jurisdic- exercise drug dog had alerted to their vehicle. At tion and affirm the district court’s decision time, plaintiff Aquilar was in defen- granting motion for sum- dant’s cruiser where checking Kiefer was mary judgment on the issue of Fourth Aquilar’s Illinois driver regis- license and liability. alert, tration. dog After the a second sum, undisputed we conclude that the officer asked passenger Esparza, who was facts reveal that Trooper vehicle, Kiefer in Aquilar’s violated still for her identifica- plaintiffs’ the clearly rights by established tion and brought her to cruiser. Kiefer’s detaining Thereafter, their green cards for over four Kiefer plaintiffs asked for days without Aquilar’s green cause. We there- they card and where fore affirm the district gotten court’s denial of green their cards. The in facts are summary judgment Kiefer, to dispute just defendant plaintiffs as as to what said. well as the district grant- court’s decision plaintiffs spoke very Both English. little ing partial summary judgment to the they Defendant states that said plaintiffs. paid green for their cards. Plaintiffs state when, here, presented

stances the record tion of whether an officer's admitted conduct clearly only demonstrates issue in violates the Constitution. dispute parties legal ques- between the is the played a role no race neutral motives necessary all the fees they paid they said Travis, conduct. challenged police The district court in the cards. green for their (explaining that when accepted the defendant’s 62 F.3d at 173-74 to have appears plaintiffs’ suspect For said. to interview of what was officers “decide version claim, reasons, legiti- it makes little dif- are many some of which equal protection they com- on the discrimination of which [are] ference since mate and some immigra- about their plain inquiry pre-contact of is the ... use of race race targeted Kiefer any Officer constitu- give tion status —“that rise to stage does their im- investigation regarding protections.”). While Travis them for deals tional solely on the basis migration status protection challenge to con- equal with an Hispanic.” being their airport travel- police interviews of sensual ers, dealing ques- with and here we are summary judgment on moved for persons whose continued detention tions to claim on the equal protection plaintiffs’ probable cause to be- is because there is undisputed facts show that the ground illegal drugs, transporting are lieve inquir- reason for racially neutral he had here, intru- anything, if is less inquiry status; immigration plaintiffs’ ing about another item request mere to see sive—a speaking namely, their difficulties rather than consensual identification understanding English. search. summary judgment He also moved claim, as- on Fourth Further, inquiry it is an which must be cards serting that he seized arrest made were the officers to question to his as to they responded

when requires the the arrest of an alien since green cards with they got where notify the alien’s con- arresting officers This led they paid for them. response that on sulate under the Vienna Convention they were obtained him to the conclusion 25, 1963, 21 April Consular Relations illegal identifi- illegally. possession The 77, T.I.A.S. No. 6820. Also OHSP U.S.T. He also crime under Ohio law. cation is a special steps requires # 9-902.08 policy reason for is a race neutral asserts this require- an alien is arrested. These where their seizure. race of apply regard without to the ments court whether the it is unclear While ordinarily may be alien. there While English as rejects inability speak inquire immigration about no reason neutral, affirm if then it should race it does stop, conjunction with a traffic status plaintiffs' summary judgment for since in an ar- ordinarily does not result which neutral basis relied it is the race citation, a broader rest but rather a traffic inquiry. Kiefer for his investigation justified drug for a inquiry is in an arrest. likely is to result which rejecting the majority, while not searching some other officer English While inability speak and understand vehicle, reason, I hold that an officer could apply would declines to as a race neutral Travis, driv- investigate identity United States 62 further our decision denied, cert. Cir.1995), passenger and the likelihood er F.3d 170 a known being from a nation is 133 L.Ed.2d their clearly source. Nowhere is estab- acknowledged drug that “consensu in which we they officers must wait until Equal Protec lished that the may al violate the searches they may inquire solely drugs initiated find the before they are tion clause when difficulty Travis suspects whose regarding further racial considerations.” based on may suggests they be speaking English in on to show placed the burden if police vestigation they not a case where the had discriminatory aliens. This is no They investigation may may based on race. motive. or not thinking initiated be discriminatory motive at the time. correctly Travis was decided Whether keep And in mind that it is not whether continue to fol- or whether it should be this officer would or would not act the lowed, I it is sufficient to entitle believe prudent To same. the officer must in qualified immunity Kiefer to the action jury consider what a likely would be to individually him I against damages. conclude—and all this would need to be would, therefore, the denial reverse spot perhaps done on the in seconds. — immunity on this issue. qualified question plays of what a determinate A in recurring problem appeal is easily role is one decided. separate district court wrote no Confronted a related in problem dealing with claims opinion States, Whren v. United individually. Kiefer The district against (1996), where opinions court’s dealt with other defen- an officer engaged law enforcement was Thus, as well as with class claims. dants alleged stopping to have mixed motives conduct, describing discriminatory nei- so, probable a vehicle but had cause to do majority ther the district court nor the held that if the prob- Court officer had limit their recitation of the facts to Kiefer’s vehicle, stop able cause to the Court respect plaintiffs. conduct with not inquire would whether the officer had personally is not liable for another’s con- another motive. supervised duct. There is no claim he Although I open ques- other defendants. am at a loss to under- the court left tion of whether holding stand how Kiefer’s intent can be inferred Whren’s would if apply challenged equal protection on Sergeant Elling’s from or Pache’s grounds, it a trap unwary would be for the conduct or that of other OSHP officials. subject if the officer were suit for Travis, rejecting majority In would damages after he she arrested someone adopt shifting a standard defendant probable jury with cause and a concluded establishing burden the same proved the officer had not he would have if decision would have resulted even except made the arrest for a discriminato- impermissible purpose had not been con- ry purpose. I believe there the same sidered, relying Wayte Armstrong. analysis in equal pro- need for the Whren majority’s holding The effect of the would claims, a holding tection that an officer greatly protection diminish the may probable arrest with cause and that immunity equal protection claims. It the court will not examine whether involving minority a rare would be case discriminatory purpose. officer also had a plaintiff where could not assert an issue of Whren, recognizing that the Court fact as to an officer’s intent no matter how unwilling had been to entertain Fourth strong non-diseriminatory motive challenges on individual majority apply I assume the would be. officers, petitioners motivation of balancing the same to cases where there is sought a standard as to what a reasonable investiga- cause as well as to the cir- officer would have done under same stop tive balancing we have here. The standard, In rejecting cumstances. require engaged would officers in an inves- the Court stated: make, tigation peril at their every step, a decision as to whether the Fourth Amendment’s concern with pursue present would course of in- “reasonableness” allows certain actions circumstances, respectfully I dissent from the must also in certain taken

to be See, subjective e.g. plaintiffs’ Fourth majority’s disposition intent. whatever Robinson, 414 U.S. claim. I not we v. do believe States [United 467, 38 L.Ed.2d 427 218, jurisdiction ap- to decide defendant’s 94 S.Ct. have (1973) in is a material fact dis- peal ]. since there accepted for the pute. Defendant has not 814, 116 Whren, S.Ct. 1769. at 517 U.S. purpose appeal plaintiffs’ of this assertion char- opinion, in the Court its Elsewhere they they paid had all the told Kiefer Robinson, holding as follows: acterized fees, than, necessary by rather as asserted having Robinson as estab- described We Kiefer, they paid for their that the officer does that “the fact lished jury plaintiffs’ If the believed testi- cards. of mind which not have the state mony, drug no retention after the investi- pro- reasons which hypothecated by gation permissible ended was because offi- justification for the legal vide the would have been no basis for a rea- there the ac- does not invalidate cer’s action coun- suspicion that the cards were soned circumstances, long as the tion taken as invalid, terfeit, illegally or obtained justify that action.” objectively, viewed therefore contraband under Ohio law. 136, 138, 98 S.Ct. at 1723. Jones, 304, 115 Johnson v. 515 U.S. Under 813, v. (quoting Scott Id. at S.Ct. (1995), 2151, 132 L.Ed.2d 238 States, 128, 98 S.Ct. 436 U.S. United may not an inter- appeals court of review (1978)). 56 L.Ed.2d locutory appeal grounds on the no need to do balanc- The Court found immunity are material issues where there except for cases conducted ing analysis I of fact unresolved. would dismiss manner, harmful to a extraordinary portion appeal Fourth Amendment physical interest. person’s privacy for that reason. out, pointed the Court While objecting defendant’s motion for sum- We review But the constitutional basis discriminatory applica- mary judgment de novo. the district intentionally court, argued probable Protection that he had Equal of laws is the tion Clause, Amendment. in view of the the Fourth cause to seize the cards Subjective play they paid no role or- intentions admission Fourth Amend- dinary, probable-cause only found the cards. The district court analysis. suspicion ment to seize the cards. reasonable accepted the factual find- defendant While it would be Id. at 116 S.Ct. court, cause is ings probable of the district unwary to trap and a for the anomalous legal fact reviewed de not a but issue they could arrest with police tell officers novo, States, Ornelas United regard to motiva- probable cause without damages liable for they tion would be but (1996), question or at least a mixed where equal pro- conduct under

for the same are de novo legal issues reviewed prove could to a tection clause unless continued appellate court. Kiefer has the same with- jury they would have done argue appeal in his brief on he discriminatory motive. There is no out the accept If lawfully seized the cards. we reason to believe that the Court would they “paid for the fact that said reject holding probable cause to its cards,” probable I hold he had cause would been broken “outbal- believe the law has if the cards. Even Kiefer erred avoiding police to seize private ances” interest concluding cause existed contact. cards, crime; he entitled to as evidence of a would be does not de- seize immunity conclusion any showing because his mand qualified such belief be reasonable, if v. mistaken. Hunter likely was correct or more true than false. 224, 228, 229, 112 S.Ct. Bryant, 502 U.S. “practical, A probability nontechnical” (1991); 534, 116 L.Ed.2d 589 Harlow v. incriminating evidence is involved is 800, 102 2727, 73 Fitzgerald, 457 U.S. S.Ct. required. Brinegar all that is v. United (1982). L.Ed.2d 396 The cards would be States, 160, 176, 1302, 338 U.S. 69 S.Ct. contraband under Ohio law since (1949). 1311, 93 L.Ed. 1879 lawfully if not forged would be issued 742, Id. at 103 S.Ct. 1535. plaintiffs. If the legally cards were seized on this writing of a known to be Possession basis, the continued retention of green purpose forged with the to utter or utter- cards does not separate constitute a ing an identification card is a crime under Fourth Amendment seizure. v. Fox Van 2901.01(m), §§ Ohio law. CRC 2913.32 (6th Oosterum, Cir.1999).1 176 F.3d 342 green clearly and 2933.42. The card is an If am in proba- I error and there was no identification card. Kiefer knew that cards, ble agree cause to seize the then I green legally bought cards are not Place, 696, that United States v. 462 U.S. paid for. He had admissions 2637, (1983) 103 S.Ct. 77 L.Ed.2d 110 was paid that their cards had been for. Clear- controlling-established law and the ly possessed the cards were with the intent required cards were to be returned after cards to use them as identification. The drugs the search for completed. suspected of the crime. were evidence Finally, I apply do believe we should They easily destroyed be if not re- could pendent appellate jurisdic- the doctrine of recognized, district court tained. As the grant summary tion and affirm the Highway troopers Patrol are Ohio State (J.A. judgment for at least three forged entitled to seize documents. First, 205) parties giv- reasons. have been opportunity en no to brief the issue. Brown, As the Court stated Texas v. While asked that we review addi- 460 U.S. 103 S.Ct. 75 L.Ed.2d beyond tional defendant’s issues (1983): immunity, granted. that motion was not fleidble, cause is a common [P]robable Second, granting summary judgment It merely requires sense standard. plaintiffs, foreclosing the court is defen- the facts available to the officer would appealing dant Kiefer from the issue of “warrant a man of reasonable caution States, belief,” probable whether he cause seize Carroll United 132, 162, 280, 288, opinion Judge 69 L.Ed. cards. Moore’s holds (1925), appeal that certain items his brief on Kiefer does not property challenge ruling contraband or stolen or useful the district court’s that he Anderson, 491, 507, Royer, 1. As we stated in United States v. 1991), (1982)). "probable 923 F.2d Cir. by objective cause is determined examina "knowledge Our court went on to hold that tion of all of the circumstances known to precise crime committed is not neces- subjective by officers. Just as a belief sary finding probable provided to a cause arresting probable officer would not establish showing cause exists existed, subjective cause where none belief by Id. crime was committed the defendants.” arresting destroy proba officer cannot at 457. (citing ble cause where it exists.” Florida v. made clear if Kiefer to seize the cause probable possess not did planned to reunite mer- how he the to does not address and green cards if did not cards and retention Although green Kiefer and them the of that issue. its brief, necessary he to absolutely his than specifically longer no the issue was raise 210) (J.A. has and explicitly it either While the verify has not waived documents.” that the cards in his brief chief that “the violation argued in Place held the Court contraband, a status as seized of the by could be the exacerbated failure was prob- only if were achieve there they could of respondent accurately inform agents to patently It is for their seizure. cause transporting able they were place to which to summary judgment grant to unfair might he length of luggage, time his of they reviewing an issue plaintiffs without arrange- of what dispossessed, and be may but in the district court raised for of be made return ments would ap- the limited raised on adequately have dispelled the investigation if the luggage immunity defense. In qualified peal 710, 103 suspicion.” that defen- effect, requiring is panel providing suggestion there no that is immunity appealing dants constitutionally re- information if and de- possible issues appeal all must alone, that, the failure standing or quired issue, judgment appeal an fail to fendants is a constitutional information give to such they and will against them may entered be violation. that issue at presenting from be foreclosed Also, seems to district court while trial. testimony plain accept the officer’s district court Third, we nor the neither cards, paid they tiffs told them of the clearly defined the boundaries have claim their have not abandoned Judge violation. Moore’s constitutional the neces they paid him they told at least the reten- opinion concludes there They maintain sary (App.Br.4) fees. some time on beyond cards tion of the justifying re suspicion no reasonable was could validity have Monday, when that answer. light cards tention Amend- checked, Fourth violated the been or they said “fees” jury If believed controlled the violation is ment. If fees, was no find it could there paid the cause, Place, there was no beyond the time the cards to retain basis green that retention seems to me drug investigation.2 taken for the drugs permit- finding no cards after completed way to be on their ting plaintiffs plain- to summary judgment granting A green card violation. the constitutional Kiefer held that tiffs, court also the district important to closely related and seems as kind plaintiffs some give to required was Supreme luggage as traveler agree that card. I cannot of substitute drugs that a seizure Place Court held clearly established requirement could not be suspicion based on reasonable constitutionally required. drug for the minutes to wait extended summary judg- granting The court is appears court hold dog. district The offi- second plaintiffs. ment both “would for verification that the retention Kiefer, cer, not defendant took the Fourth only permissible be under seizing the cards. basis for were no per- there plaintiffs will be It is whether unclear arguing precluded from defendant [Will was without that the mitted show officer cards made appearance of one of the green cards because basis to seize the validity? testified A he question its fact they paid him they paid the said fees—not deposition.] in his damages be different if Their the cards.

557- The record is unclear Esparza. card from relationship defendant to the between They ap- and the second officer.

Kiefer vehicles, in separate to have arrived

pear this is unclear.

but even While card, Esparza’s he was not the

retained it.

one who seized issues,

In view of the factual the uncer-

tainty parameters as to the of the Fourth violation, briefing,

Amendment the lack of ability proba-

the denial of the to raise the appeal summary on

ble cause issue plaintiffs, though he

judgment even it, I

clearly did not waive do not believe we

should decide motion for sum- Fourth

mary judgment affirming

claim. It seems to me that sum-

mary judgment on our own than requires certainty

initiative more we I

have here. do not see the issue that is

inextricably prop- intertwined the issues

erly before us. America,

UNITED STATES

Plaintiff-Appellee, KESZTHELYI,

Rudolph Defendant-

Appellant.

No. 00-6630. Appeals,

United States Court of

Sixth Circuit.

Argued: June 2002.

Decided Filed: Oct.

Case Details

Case Name: Farm Labor Organizing Committee v. Ohio State Highway Patrol

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 17, 2002

Citation: 308 F.3d 523

Docket Number: 00-3653

Court Abbreviation: 6th Cir.