                                                                           FILED
                           NOT FOR PUBLICATION                             FEB 04 2016

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


FREDERICK MARC COOLEY,                           No. 13-16824

              Plaintiff - Appellee,              D.C. No.
                                                 2:10-cv-01138-RLH-NJK
  v.

R. LEUNG, P # 8556; E. LUDTKE, P #               MEMORANDUM*
9044,

              Defendants - Appellants.


                   Appeal from the United States District Court
                            for the District of Nevada
                  Roger L. Hunt, Senior District Judge, Presiding

                           Submitted October 19, 2015**
                             San Francisco, California

Before: SILVERMAN and CHRISTEN, Circuit Judges, and DUFFY,*** District
Judge.




       *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

        The panel unanimously concludes that this case is suitable for decision
       **

without oral argument. See Fed. R. App. P. 34(a)(2).
       ***
         The Honorable Kevin Thomas Duffy, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
      This appeal arises from the District Court’s denial of the police officer

Defendants’ motion for summary judgment on their qualified immunity defense.

Plaintiff Frederick Marc Cooley brought suit pursuant to 42 U.S.C. § 1983,

claiming that Officers R. Leung and E. Ludtke (“Officers”) violated Cooley’s

Fourth Amendment rights during a traffic stop. Cooley claimed that the Officers

lacked reasonable suspicion to make the stop, to question him beyond the scope of

the reason for the stop, to pat search him, and to conduct an inventory search of his

vehicle. The Officers moved for summary judgment on the grounds that qualified

immunity shielded them from liability and that their actions were supported by

reasonable suspicion. The District Court denied the Officers’ motion. We have

jurisdiction over the Officers’ appeal pursuant to 28 U.S.C. § 1291. See Mattos v.

Agarano, 661 F.3d 433, 439 & n.2 (9th Cir. 2011) (en banc).

      We “review de novo a district court’s denial of summary judgment on the

basis of qualified immunity.” Id. at 439. To determine whether the qualified

immunity defense applies, we ask “whether the officer violated a plaintiff’s

constitutional right,” and if so, “whether the constitutional right was ‘clearly

established in light of the specific context of the case’ at the time of the events in

question.” Id. at 440 (internal citations omitted).




                                            2
      1. The District Court did not err in denying summary judgment to the

Officers with respect to the vehicle stop. To justify a vehicle stop, “officers need

only ‘reasonable suspicion’—that is, ‘a particularized and objective basis for

suspecting the particular person stopped’ of breaking the law.” Heien v. North

Carolina, 135 S. Ct. 530, 536 (2014) (internal citation omitted). Reviewing the

facts in the light most favorable to Cooley, see Scott v. Harris, 550 U.S. 372, 378

(2007), Cooley was stopped for driving a late-model vehicle with a temporary

registration placard in an area known for narcotics trafficking. Though the

Officers suspected that the registration might have been fraudulent, nothing

suggested that it was. The parties dispute whether Cooley had been driving

evasively. On those facts, we cannot hold that the stop was supported by

reasonable suspicion. See United States v. Montero-Camargo, 208 F.3d 1122,

1130 (9th Cir. 2000) (en banc) (“[I]nnocuous conduct does not justify an

investigatory stop unless there is other information or surrounding circumstances

of which the police are aware, which, when considered along with the otherwise

innocuous conduct, tend to indicate criminal activity has occurred . . . .”) (emphasis

omitted). Further, the right at issue was clearly established at the time of the stop.

See Tarabochia v. Adkins, 766 F.3d 1115, 1125 (9th Cir. 2014); Liberal v. Estrada,

632 F.3d 1064, 1077 (9th Cir. 2011). Accordingly, the Officers are not entitled to


                                           3
qualified immunity, the District Court properly denied summary judgment on this

issue, and we affirm.

      2. The District Court erred in denying summary judgment to the Officers on

their claim of qualified immunity for the scope of the investigation and duration of

the traffic stop. “When stopping an individual for a minor traffic violation, ‘an

officer’s mission includes ‘ordinary inquiries incident to [the traffic] stop.’”

United States v. Evans, 786 F.3d 779, 786 (9th Cir. 2015) (internal citation

omitted). “[A]n officer may prolong a traffic stop if the prolongation itself is

supported by independent reasonable suspicion.” Id. at 788. If, however, “the

officers’ questioning d[oes] not prolong the stop,” it “need not [be] supported by

separate reasonable suspicion.” United States v. Mendez, 476 F.3d 1077, 1081 (9th

Cir. 2007).

      Accepting Cooley’s version of the facts, and drawing reasonable inferences

in his favor, the traffic stop was not unreasonably prolonged. The record on appeal

indicates that the stop lasted approximately fifteen minutes. The Officers were not

required to conduct their investigation at “top speed,” and are permitted to take

“brief pauses to ask questions during traffic stops, even if those questions are

unrelated to the purpose of the stop . . . .” See United States v. Turvin, 517 F.3d

1097, 1102 (9th Cir. 2008). Because the stop was not unreasonably prolonged, the


                                           4
Officers did not violate Cooley’s Fourth Amendment rights, and they are entitled

to qualified immunity. The District Court’s denial of summary judgment on this

point was error, and we reverse.

      3. The District Court did not err in denying summary judgment to the

Officers with respect to the pat search. An officer can conduct a pat search if he

“reasonably believes that ‘the persons with whom he is dealing may be armed and

presently dangerous.’” United States v. I.E.V., 705 F.3d 430, 432 (9th Cir. 2012)

(quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). The Officers assert that they could

have feared for their safety given Cooley’s history of firearms and narcotics

convictions, failure to fully answer questions, and nervousness or “hostility.” But

at summary judgment, we must construe all evidence in the light most favorable to

the non-movant, Cooley, see Scott, 550 U.S. at 378, and Cooley’s statements

indicate that he only became hostile after the Officers handcuffed and decided to

search him. Given the record before us, a jury question exists as to whether the

Officers reasonably believed that Cooley might have been “armed and dangerous,”

as required for a pat search. See Ramirez v. City of Buena Park, 560 F.3d 1012,

1022 (9th Cir. 2009) (“[F]acts merely establishing that if an individual were armed

he would be dangerous are insufficient if there was no reason to believe that the

individual actually was armed.”). These rights were clearly established at the time


                                          5
of the incident. Id. at 1023. Accordingly, the District Court’s denial of summary

judgment to the Officers with respect to the pat search is affirmed.1

                                          ***

      In summary, the District Court properly denied summary judgment to the

Officers on Cooley’s Fourth Amendment claims regarding the vehicle stop and the

pat down, and we affirm on those issues, but the District Court erred in denying

summary judgment on Cooley’s claim regarding the scope and duration of the stop,

and we reverse for the entry of summary judgment on that point.

      Accordingly, the judgment of the District Court is REVERSED in part;

AFFIRMED in part; and REMANDED for further proceedings.

      The parties shall bear their own costs on appeal.




      1
         For the first time in their reply brief, the Officers assert that the pat search
was valid because it occurred after they had probable cause to arrest Cooley for the
driver’s license violation. “A search incident to an arrest [can be] valid whether it
occurs immediately before or after the arrest.” United States v. Potter, 895 F.2d
1231, 1234 (9th Cir. 1990); see also United States v. Camou, 773 F.3d 932, 937
(9th Cir. 2014) (discussing standard for search incident to arrest). By failing to
properly raise this argument, however, the Officers waived it for purposes of this
appeal. See Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990).
                                             6
