                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-1367
                                   ___________

Jennifer June Johnson,                     *
                                           *
      Plaintiff/Appellee,                  *
                                           * Appeal from the United States
      v.                                   * District Court for the
                                           * Eastern District of Missouri.
Joe Ernst Phillips, in his official and    *
personal capacities,                       *
                                           *
      Defendant/Appellant,                 *
                                           *
Velda City, Missouri, a Missouri           *
municipal corporation,                     *
                                           *
             Defendant.                    *
                                      ___________

                             Submitted: September 20, 2011
                                Filed: December 22, 2011
                                 ___________

Before RILEY, Chief Judge, COLLOTON, and GRUENDER, Circuit Judges.
                              ___________

COLLOTON, Circuit Judge.

      Joe Phillips, building commissioner and Auxiliary Reserve Police Officer for
Velda City, Missouri, stopped Jennifer Johnson’s vehicle, arrested her, and searched
her car. Johnson presented evidence that Phillips then directed her to follow him to
an empty parking lot, and that he sexually assaulted her. Johnson sued Philips under
42 U.S.C. § 1983 for violations of her constitutional rights. The district court
concluded that Phillips was not entitled to qualified immunity and denied his motion
for summary judgment. Phillips appeals, and we affirm in part, reverse in part, and
remand for further proceedings. Because the case arises from a motion for summary
judgment, we consider the facts in the light most favorable to Johnson, the non-
movant.

                                          I.

      On the evening of July 9, 2006, Phillips was patrolling in a marked police car
while wearing a Velda City police uniform. As an Auxiliary Reserve Police Officer,
he lacked authority under state law to conduct a traffic stop or arrest. Phillips
nonetheless signaled Johnson to stop.

       Johnson had not committed any traffic violation, but Phillips allegedly stopped
her because she had left a location known for narcotics sales. After Johnson admitted
to Phillips that there was an outstanding municipal traffic warrant against her for
running a stop sign, Phillips arrested her. He handcuffed her and placed her in the
back of his patrol car. He then proceeded to search Johnson’s purse and vehicle,
including the passenger compartment, glove box, and trunk. During the search,
Phillips concluded that Johnson was homeless and living in her automobile. He
released her from his patrol car and offered to provide her with information about
homeless shelters in the area.

       After releasing Johnson, Phillips “asked” if Johnson would follow him in her
car, stating that “you need to follow me.” He said that he had more information to
give her about shelters. She followed him for three minutes until they reached an
empty parking lot. Once in the lot, Phillips pressed his body up against Johnson’s and
began making comments about her genitals. He pulled Johnson’s shorts and
underwear to the side, and proceeded to take pictures of her genitals with his cellular
telephone. He also penetrated her vagina with his finger.

                                         -2-
       Phillips was charged in a criminal case with depriving Johnson of her civil
rights, in violation of 18 U.S.C. § 242. He pleaded guilty and was sentenced to 263
months’ imprisonment.

       Johnson brought this civil action against Phillips. She alleged that the stop,
arrest, and search violated her constitutional right under the Fourth and Fourteenth
Amendments to be free from unreasonable search and seizure, because (1) she was
stopped without reasonable suspicion, (2) the arrest was not supported by probable
cause, and (3) the search was not incident to a lawful arrest. She further alleged that
Phillips violated a substantive due process right to bodily integrity when he sexually
assaulted her. Phillips moved for summary judgment, claiming that he was entitled
to qualified immunity. The district court denied Phillips’s motion, and he now
appeals.

                                          II.

       We have jurisdiction to review the district court’s denial of qualified immunity
under the collateral order doctrine, see Johnson v. Jones, 515 U.S. 304, 317 (1995),
and we consider it de novo, viewing the evidence in the light most favorable to
Johnson. Gardner v. Bd. of Police Comm’rs for Kansas City, Mo., 641 F.3d 947, 950
(8th Cir. 2011). In determining whether a government official is entitled to qualified
immunity, we ask (1) whether the facts alleged establish a violation of a constitutional
or statutory right and (2) whether that right was clearly established at the time of the
alleged violation, such that a reasonable official would have known that his actions
were unlawful. Pearson v. Callahan, 555 U.S. 223, 232 (2009).

       This case also implicates another aspect of qualified-immunity analysis. In
Hawkins v. Holloway, 316 F.3d 777 (8th Cir. 2003), this court held that an official
acting outside the clearly established “scope of his discretionary authority is not
entitled to claim qualified immunity under § 1983.” Id. at 788. In rejecting a sheriff’s
contention that he was entitled to qualified immunity for threatening his employees

                                          -3-
with a firearm, Hawkins adopted the reasoning of In re Allen, 106 F.3d 582 (4th Cir.
1997).

       Drawing on Supreme Court precedent and the common law principles
underlying qualified immunity, the Fourth Circuit in Allen said “it was well
recognized at common law that a government official who exceeded his authority
enjoyed no immunity.” Id. at 592; see also Butz v. Economou, 438 U.S. 478, 495
(1978) (stating that qualified immunity does not “abolish the liability of federal
officers for actions manifestly beyond their line of duty”). The court thus held that
“an official who performs an act clearly established to be beyond the scope of his
discretionary authority is not entitled to claim qualified immunity under § 1983.”
Allen, 106 F.3d at 593. In Allen, a state attorney general was not entitled to qualified
immunity for organizing a corporation, because it was clearly established that this
activity was outside the scope of his authority. Id. at 598. Several other circuits have
adopted a similar approach. See, e.g., Holloman ex rel. Holloman v. Harland, 370
F.3d 1252, 1265-67 (11th Cir. 2004) (“We ask whether the government employee was
(a) performing a legitimate job-related function (that is, pursuing a job-related goal),
(b) through means that were within his power to utilize.”); Shechter v. Comptroller
of N.Y., 79 F.3d 265, 268-70 (2d Cir. 1996) (to enjoy qualified immunity, “the
defendant must show that the conduct of which the plaintiff complains falls within the
scope of the defendant’s official duties”); Merritt v. Mackey, 827 F.2d 1368, 1372-73
(9th Cir. 1987); see also Mackey v. Dyke, 29 F.3d 1086, 1095 (6th Cir. 1994) (“[T]he
defendants bear the initial burden of coming forward with facts that show they were
acting within their discretionary authority at the time in question.”).

                                            A.

        Johnson first asserts that Phillips violated her right to be free from unreasonable
seizures by detaining her without reasonable suspicion. Johnson has alleged sufficient
facts to establish that Phillips lacked reasonable suspicion to seize her. To justify a
traffic stop under Terry v. Ohio, 392 U.S. 1 (1968), a “police officer must be able to

                                           -4-
point to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant” the stop. Id. at 21. Phillips has presented only
one justification for the stop: that Johnson was leaving “a location known for narcotics
sales.” That Johnson had turned off a street known for drug sales is not sufficient to
establish reasonable suspicion that she was engaged in criminal conduct. See Brown
v. Texas, 443 U.S. 47, 52 (1979). It was well-known at the time of the incident that
an investigatory stop is valid only if “police officers have a reasonable and articulable
suspicion that criminal activity may be afoot.” United States v. Navarrete-Barron, 192
F.3d 786, 790 (8th Cir. 1999). And it was clearly established that a person’s presence
in a suspicious location does not, in and of itself, provide law enforcement with a
reasonable, articulable suspicion. See, e.g., Brown, 443 U.S. at 52. The district court
thus properly denied Phillips qualified immunity on this claim.

                                           B.

       Phillips next contends that the district court should have dismissed Johnson’s
claim that Phillips unlawfully arrested her. On this point, we must agree with Phillips.
Johnson admitted to Phillips that there was an outstanding warrant for her arrest. As
such, there was probable cause to arrest Johnson, and her arrest by a city official did
not violate the Fourth Amendment. See United States v. Willis, 967 F.2d 1220, 1224
(8th Cir. 1992).

       Johnson argues that Phillips could not rely on information gleaned during an
unconstitutional stop to justify the subsequent arrest. Just this year, however, this
court quoted the Seventh Circuit’s observation that “‘[i]t would be startling to suggest
that because the police illegally stopped an automobile, they cannot arrest an occupant
who is found to be wanted on a warrant.’” United States v. Faulkner, 636 F.3d 1009,
1015 (8th Cir. 2011) (quoting United States v. Green, 111 F.3d 515, 521 (7th Cir.
1997)), cert. denied, No. 11-235, 2011 WL 3794361 (U.S. Nov. 28, 2011). We adhere
to that view and conclude that the arrest of Johnson based on an outstanding warrant
complied with the Fourth Amendment.

                                          -5-
       That Phillips lacked authority under state law to make an arrest does not
establish that his conduct violated the Fourth Amendment. In Virginia v. Moore, 553
U.S. 164 (2008), the Supreme Court held that the protections of the Fourth
Amendment do not turn on the applicability of state law. Id. at 171-76. The court
expressed concern that linking Fourth Amendment protections to state law would
cause them to “vary from place to place and from time to time.” Id. at 176 (internal
quotation omitted). The outstanding warrant gave Phillips probable cause to arrest
Johnson, and that probable cause satisfied the Fourth Amendment. See Tanberg v.
Sholtis, 401 F.3d 1151, 1159-60 (10th Cir. 2005).

       For these reasons, Johnson cannot show that Phillips violated a constitutional
right to be free from arrest without probable cause, and the district court should have
dismissed her claim of unlawful arrest.

                                          C.

      Johnson’s next claim is that Phillips searched her car without probable cause
in violation of the Fourth Amendment. We conclude that the search alleged by
Johnson violated the Fourth Amendment, and that Phillips is not entitled to qualified
immunity.

       An arresting officer may search the passenger compartment of a vehicle after
an arrest only “when the arrestee is unsecured and within reaching distance of the
passenger compartment at the time of the search” or when it “is reasonable to believe
evidence relevant to the crime of arrest might be found in the vehicle.” Arizona v.
Gant, 129 S. Ct. 1710, 1719 (2009). An officer may search the trunk of such a vehicle
based on probable cause under the “automobile exception” to the warrant requirement.
See Pennsylvania v. Labron, 518 U.S. 938, 939-40 (1996) (per curiam). None of these
criteria was satisfied here. Johnson was safely in the back of the squad car when
Phillips searched her vehicle, and there was no reason to believe that evidence of


                                         -6-
Johnson’s traffic offense or any other offense would be found in her car. The search
of the car and its contents violated the Fourth Amendment.

       The search of the trunk violated clearly established law. There was no arguable
authority to search a trunk of a vehicle incident to arrest. New York v. Belton, 453
U.S. 454, 460 n.4 (1981). No reasonable officer would have believed that he had
probable cause to do so under the automobile exception in this case. On this basis
alone, Phillips has no qualified immunity for the search of the trunk.

       If Phillips were a police officer with arguable authority to conduct searches
incident to arrest, then he would have qualified immunity for the search of the
passenger compartment. As of 2006, before the Supreme Court’s decision in Gant,
this court’s interpretation of the Fourth Amendment in light of Belton established a
bright-line rule that officers could search the passenger compartment of a vehicle
incident to arrest. See United States v. Hrasky, 453 F.3d 1099, 1100 (8th Cir. 2006).
A police officer with appropriate authority who relied on pre-Gant precedent to
conduct a search before April 2009 is entitled to qualified immunity. Gant, 129 S. Ct.
at 1722 n.11.

        Phillips is not entitled to qualified immunity for the search of the passenger
compartment, however, because he acted outside the clearly established boundaries
of his authority as an Auxiliary Reserve Police Officer. See Hawkins, 316 F.3d at 788.
Of course, not every improper exercise of duties or violation of law eliminates
qualified immunity. The dispositive question in evaluating the availability of
immunity is “whether the act complained of, if done for a proper purpose, would be
within, or reasonably related to, the outer perimeter of an official’s discretionary
duties.” In re Allen, 106 F.3d at 594. It is clear that Phillips’s act of searching the car
was not. Phillips’s position as Auxiliary Reserve Police Officer did not grant him the
power to arrest or search incident to arrest. Velda City Ordinance § 200.110(5) states
that reserve officers have no power to arrest beyond that of any other citizen, and
Phillips acknowledged this limitation in his deposition. With Phillips standing in the

                                           -7-
same shoes as any other citizen, it was clearly established that he had no authority
under state or local law to arrest persons believed to have committed traffic offenses.
State v. Devlin, 745 S.W.2d. 850, 852 (Mo. Ct. App. 1988). And Phillips likewise
clearly lacked authority to conduct a search incident to an arrest that he was not
authorized to make. We therefore conclude that Phillips is not entitled to qualified
immunity on Johnson’s claim for unlawful search of her vehicle.

                                           D.

       Johnson’s final constitutional claim is that Phillips violated her substantive due
process right to bodily integrity. As of 2006, it was clearly established in this circuit
that the commission of a sexual assault by a government official acting under color
of law constitutes a violation of due process that shocks the conscience. Rogers v.
City of Little Rock, Ark., 152 F.3d 790, 796 (8th Cir. 1998); Haberthur v. City of
Raymore, Mo., 119 F.3d 720, 723 (8th Cir. 1997). Johnson alleges that Phillips
pushed her up against the hood of her car, pulled her shorts and underwear to the side,
took pictures of her genitals with his cellular phone, and penetrated her vagina with
his finger. These allegations constitute “an egregious, nonconsensual entry into the
body which was an exercise of power without any legitimate governmental objective.”
Rogers, 152 F.3d at 797. Any reasonable officer would have known that these actions
violated clearly established law.

       Phillips contends that he did not commit a constitutional violation because he
was not acting under color of law at the time of the alleged sexual assault. In his
view, once he removed Johnson’s handcuffs, everything that followed—the
conversation about homeless shelters, the drive to a second location, and the assault
itself—occurred while he was acting in his capacity as a civilian, not as a city official.

      Assuming for the sake of analysis that Phillips is not collaterally estopped by
his guilty plea to a violation of 18 U.S.C. § 242 from relitigating whether he acted
under color of law, cf. Roe v. City of Waterbury, 542 F.3d 31, 41 (2d Cir. 2008);

                                           -8-
Vennes v. An Unknown Number of Unidentified Agents, 26 F.3d 1448, 1452 (8th Cir.
1994), there is sufficient evidence from which a reasonable jury in this civil case could
find that Johnson has proved the “color of law” element of her claim. Generally
speaking, a public employee acts under color of law when he “exercise[s] power
possessed by virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law.” West v. Atkins, 487 U.S. 42, 49 (1988)
(internal quotation omitted). The element is satisfied if the defendant acts or purports
to act in the performance of official duties, even if he oversteps his authority and
misuses power. Dossett v. First State Bank, 399 F.3d 940, 948 (8th Cir. 2005).

       Here, Phillips first effected a traffic stop, arrested Johnson on an outstanding
warrant, and searched her car. Then, while wearing a police uniform and operating
a police car, he released Johnson from the patrol car and directed her to follow him in
her car. A reasonable factfinder believing these facts could conclude that Phillips was
purporting to act as a police officer performing official duties when he led Johnson
to the empty parking lot and committed the sexual assault. The district court thus
properly rejected Phillips’s motion to dismiss this claim.

                                   *       *       *

       For the foregoing reasons, we affirm in part, reverse in part, and remand for
further proceedings.
                        ______________________________




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