                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0665n.06
                           Filed: November 3, 2008

                                           No. 07-6464

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


EDDIE PILLOW,                                    )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
CITY OF LAWRENCEBURG,                            )   MIDDLE DISTRICT OF TENNESSEE
TENNESSEE, ET AL.                                )
                                                 )
       Defendants-Appellants.


Before: BATCHELDER, CLAY, and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. Officer David Russ appeals the district court’s denial of his motion

for summary judgment, arguing that he is entitled to qualified immunity from this § 1983 claim. We

affirm in part and reverse in part.


                                                I.


       On the afternoon of May 17, 2006, Officer David Russ, a narcotics detective for the

Lawrenceburg Police Department, was on traffic patrol when he heard loud music coming from

Eddie Pillow’s vehicle. Russ stopped the car, told Pillow why (excessive noise from a motor vehicle

in violation of Tenn. Code § 55-8-193) and asked Pillow to exit the car.


       After Pillow left the car, Russ engaged him in conversation while running a check on his
No. 07-6464
Pillow v. City of Lawrenceburg

driver’s license. At some point, Russ asked Pillow if he could search his car, and Pillow refused.

Although the license check indicated that Pillow’s license was valid and that no outstanding warrants

existed for his arrest, Russ called the Lawrenceburg Police K-9 officer, Michael Kilpatrick, and

asked him to bring a narcotics dog to conduct a dog-sniff inspection of Pillow’s vehicle. Russ then

returned to his vehicle to write up a citation for Pillow, at which point he realized he did not have

any citation forms, requiring him to wait until a nearby officer could bring him the required forms.

“Within a few minutes,” an officer arrived bearing the extra forms, JA 81, and “three to five

minutes” after that, JA 143, Kilpatrick arrived on the scene and began the dog-sniff inspection of

Pillow’s vehicle.


       Before Russ had filled out Pillow’s citation, Kilpatrick informed him that the narcotics dog

had given a “strong positive indication for the presence of drug odor” on Pillow’s front passenger-

side door. JA 82. The officers searched the interior of Pillow’s car but did not find any drugs. After

further inspection and after the narcotics dog alerted on the driver’s seat, Russ searched Pillow.


       The parties dispute the scope of that search. Russ claims that, after securing Pillow’s consent

for the search, he “conducted a pat-down of Mr. Pillow for weapons and asked him to empty his

pockets,” JA 83, and felt around Pillow’s waist and pulled back the top of Pillow’s shorts and

underwear to conduct a visual inspection. Pillow claims that Russ’s search of his person was far

more invasive: He claims that Russ made him remove his shirt, shoes and socks and used his fingers

to probe Pillow’s anus. Whatever its scope, the search of Pillow did not disclose any narcotics. Russ

eventually issued Pillow a citation, and Pillow left the area.

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No. 07-6464
Pillow v. City of Lawrenceburg

        Pillow filed this lawsuit in federal court against Russ and the City of Lawrenceburg. He

raised a § 1983 claim against the City, contending that Russ’s behavior was the product of a pattern

and practice on the part of the Lawrenceburg Police Department. He raised a series of § 1983 claims

against Russ, contending that Russ violated his Fourth Amendment rights in several distinct ways,

and he sought relief for state-law battery, false imprisonment and intentional infliction of emotional

distress. The district court granted summary judgment to the City, but it denied qualified immunity

to Russ on each of the federal claims. Russ filed this interlocutory appeal.


                                                   II.


        As best we can tell from his complaint and pleadings, Pillow alleges that Russ violated the

Fourth (and Fourteenth) Amendment’s prohibition on unreasonable searches and seizures at five

distinct points during this encounter: (1) the initial traffic stop, (2) the dog sniff of his vehicle, (3)

the search of the interior of his car, (4) the initiation of the search of him and (5) the scope of the

search of him. When a plaintiff raises serial violations of his constitutional rights, we separately

analyze each of them. See Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008); Jones v. City of

Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008). To overcome an officer’s claim of qualified

immunity, a plaintiff must demonstrate (1) that the officer violated a “constitutional right” and (2)

that the right was “clearly established” at the time of the officer’s actions. Saucier v. Katz, 533 U.S.

194, 201 (2001).




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No. 07-6464
Pillow v. City of Lawrenceburg

       In reviewing interlocutory appeals from the denial of a claim of qualified immunity, we must

read the record in favor of the claimant and thus must draw all reasonable factual inferences in his

favor. See Estate of Carter v. City of Detroit, 408 F.3d 305, 309–310 (6th Cir. 2005). To the extent

an argument in this setting merely quibbles with the district court’s factual assessment of the record,

we do not have jurisdiction to review it. See Johnson v. Jones, 515 U.S. 304, 319–320 (1995). In

this instance, Officer Russ raises several arguments that can only be described as mere challenges

to the district court’s reading of the summary-judgment record, and accordingly we do not review

them. What remains are the following legal contentions that, even when all factual inferences are

drawn in Pillow’s favor, Russ either did not violate a constitutional right or did not violate a clearly

established constitutional right.


                                                  A.


       Was the traffic stop an unreasonable seizure? No. “A police officer legally may stop a car

when he has probable cause to believe that a civil traffic violation has occurred.” United States v.

Blair, 524 F.3d 740, 748 (6th Cir. 2008). And Tenn. Code Ann. § 55-8-193(a) makes it a

misdemeanor for any person to operate a “sound amplification system . . . from within the motor

vehicle so that the sound is plainly audible at a distance of fifty (50) or more feet from the vehicle.”

Pillow admits that Russ was more than 50 feet away when he first heard loud music coming from

Pillow’s car. On these facts, Russ had probable cause to believe that Pillow was violating the

excessive-noise statute, entitling him to qualified immunity from a claim that the traffic stop itself

violated Pillow’s constitutional rights.

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No. 07-6464
Pillow v. City of Lawrenceburg

                                                  B.


       Was the dog sniff of the exterior of Pillow’s vehicle an unreasonable search? No. So long

as the police have not unreasonably extended the length of a stop beyond the time necessary to write

a ticket and conduct ordinary inquiries incident to the stop, “[a] dog sniff conducted during a

concededly lawful traffic stop that reveals no information other than the location of a substance that

no individual has any right to possess does not violate the Fourth Amendment.” Illinois v. Caballes,

543 U.S. 405, 410 (2005); cf. United States v. Wellman, 185 F.3d 651, 656 (6th Cir. 1999).


       On the undisputed facts of this case, the dog sniff did not unduly prolong the length of the

stop. Russ summoned Kilpatrick to the scene after receiving the results of the license check and

before he walked back to his vehicle to write up Pillow’s citation. But because Russ did not have

any citation forms, he could not begin filling out the citation until a fellow officer brought him extra

forms. In his deposition, Pillow testified that Kilpatrick arrived “three to five minutes” after the

officer brought the needed form to Russ—and thus only “three to five minutes” after Russ could

have begun filling out Pillow’s citation. Pillow acknowledges that Kilpatrick arrived on the scene

while Russ was still writing his citation and does not contest Russ’s claim that Kilpatrick informed

him about the narcotics dog’s positive alert on Pillow’s vehicle “before [Russ] had completed the

citation.” JA 81. On this record, it thus is clear that the dog sniff started and stopped while Russ

was still completing Pillow’s citation, confirming that the sniff did not unreasonably extend the

length of the stop.



                                                 -5-
No. 07-6464
Pillow v. City of Lawrenceburg

       While Pillow complains about the length of time it took Russ to write him a citation, he has

failed to come to terms with the undisputed fact that this delay arose from the absence of a citation

form. Even at that, the delay was (1) brief because, as Pillow admits, it took just “a few minutes”

before the other officer arrived with the necessary form, JA 91–92, and (2) necessary to “complete

[the] mission” of the stop, Caballes, 543 U.S. at 407, because issuing a citation is well within the

bounds of a lawful traffic stop, see Wellmam,185 F.3d at 656. Had the delay been longer, even for

the purpose of getting the correct citation form, that might be another matter, one we need not

resolve today. For today’s purposes, it suffices that a good-faith delay of at most a few minutes to

get a proper citation form does not unduly prolong a stop for Fourth Amendment purposes.


                                                 C.


       Does Pillow have a cognizable claim that Russ violated his Fourth Amendment rights in

searching Pillow’s car? Yes. Russ argues that the narcotics dog alerted on Pillow’s passenger front

door and that this alert gave Russ probable cause to search Pillow’s vehicle. But because Pillow

testified that the narcotics dog did not alert on his car, Russ’s argument does no more than quibble

with the district court’s factual reading of the summary judgment record. We thus lack jurisdiction

to consider Russ’s argument on this claim.




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No. 07-6464
Pillow v. City of Lawrenceburg

                                                 D.


       Does Pillow have a cognizable claim that Russ violated his Fourth Amendment rights in

initially searching Pillow? Yes. To start, Russ cannot justify the search as a permissible Terry frisk

given the extent of the search, and indeed he makes no such argument (at least in connection with

the search of Pillow’s person). See United States v. Branch, 537 F.3d 582, 589 (6th Cir. 2008). Russ

instead argues that the search was justified as being incident to an arrest. See Chimel v. California,

395 U.S. 752, 755–56 (1969). While the legal premise of this argument is correct, the factual

premise is not. Russ never arrested Pillow, so there was never any arrest to which the search could

be incident. The search-incident-to-arrest exception to the warrant requirement applies only when

the police already have probable cause prior to the search, and a “formal arrest follow[s] closely on

the heels of the challenged search.” United States v. Montgomery, 377 F.3d 582, 586 (6th Cir. 2004)

(internal quotation marks omitted) (alteration in original). Because Pillow was never subjected to

formal arrest, the exception does not apply. Cf. Sibron v. New York, 392 U.S. 40, 63 (1968) (“It is

axiomatic that an incident search may not precede an arrest and serve as part of its justification.”)

(emphasis added).


       Russ adds that, even if the initial search of Pillow’s person was unreasonable, he did not

violate “clearly established” constitutional rights. Br. at 35. Not so. “Over and again this Court has

emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes.

Only where incident to a valid arrest, or in exceptional circumstances, may an exception lie, and then

the burden is on those seeking the exemption to show the need for it.” United States v. Jeffers, 342

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No. 07-6464
Pillow v. City of Lawrenceburg

U.S. 48, 51 (1951) (internal quotation marks and citations omitted). Russ never arrested Pillow, and

Russ failed to establish any exceptional circumstances (particularly when the factual inferences are

construed in Pillow’s favor) that would justify this search. In the final analysis, Pillow has invoked

a clearly established legal premise for taking this claim to a jury, which has the province to do

something we cannot: sort out the factual disputes between the parties.


                                                  E.


       Does Pillow have a cognizable Fourth Amendment claim that the extent of Russ’s search was

unreasonable? Yes. Russ concedes that, under the circumstances, a digital search of Pillow’s anus

would have been unreasonable, and that is the end of the matter—at least at this summary-judgment

stage of the case. Having conceded the validity of this legal claim, both as a matter of constitutional

law and clearly established constitutional law, Russ is left to quibble over how to read the record in

determining what happened during the search. We have no authority to entertain this type of dispute.

So long as Pillow has come forward with plausible factual bases for a legitimate legal claim, he is

entitled to take the claim to a jury. See Scott v. Harris, ___U.S.___, 127 S.Ct. 1769, 1776 (2007).


                                                 III.


       For these reasons, we affirm in part, reverse in part and remand for further proceedings.




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