    18-1272
    McLeod v. Mickle


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 27th day of March, two thousand nineteen.

    PRESENT:
                ROBERT D. SACK,
                REENA RAGGI,
                SUSAN L. CARNEY,
                      Circuit Judges.
    _____________________________________

    Thomas McLeod,

                             Plaintiff-Appellant,

                       v.                                                 18-1272

    William Mickle, Special Agent, United States
    Forest Service, Barry Stokes, Law Enforcement
    Officer, United States Forest Service,

                             Defendants-Appellees,

    Two Unknown Forest Service Law Enforcement
    Officers, One Unknown Rutland County Sheriff’s
    Deputy,

                      Defendants.
    _____________________________________

    FOR PLAINTIFF-APPELLANT:                         THOMAS MCLEOD, pro se, Montpelier, VT.
FOR DEFENDANTS-APPELLEES:                                     WEILI J. SHAW (Barbara L. Herwig, on the
                                                              brief) Attorneys, Appellate Staff, Civil
                                                              Division, United States Department of
                                                              Justice, Washington, DC; Christina E.
                                                              Nolan, United States Attorney for the
                                                              District of Vermont.

        Appeal from a judgment of the United States District Court for the District of Vermont

(Reiss, J.).


        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on February 26, 2018, is VACATED

and REMANDED.

        Plaintiff-Appellant Thomas McLeod, proceeding pro se, appeals from the district court’s

judgment dismissing McLeod’s suit against Defendant-Appellee Barry Stokes, a U.S. Forest

Service (“Forest Service”) officer, under Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971), for Fourth Amendment violations.1 In his complaint,

McLeod alleges that Stokes unreasonably prolonged an otherwise lawful traffic stop for an expired

vehicle inspection sticker in order to question McLeod about illegal drugs, call for a K9 unit, and

perform a “dog sniff” of his car. The district court granted Stokes’s motion to dismiss the complaint

for failure to state a claim, concluding that Stokes was entitled to qualified immunity because

McLeod did not plausibly allege that Stokes was “dilatory” in issuing a citation for the expired

sticker. App’x at 57. We assume the parties’ familiarity with the underlying facts, the procedural




1
  McLeod also sued William Mickle, a U.S. Forest Service special agent. The district court dismissed the suit against
Mickle for Mickle’s lack of personal involvement, a ruling that McLeod does not challenge. We therefore treat the
issue as abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995).
                                                         2
history of the case, and the issues on appeal, to which we refer only as needed to explain our

decision to vacate and remand.

       “We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6),

construing the complaint liberally, accepting all factual allegations in the complaint as true, and

drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282

F.3d 147, 152 (2d Cir. 2002). The complaint must plead “enough facts to state a claim to relief that

is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). Although we must accept as true all factual allegations in the

complaint, that requirement is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

       The doctrine of qualified immunity insulates public officials from claims for damages

“where their conduct does not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.” Defore v. Premore, 86 F.3d 48, 50 (2d Cir. 1996) (internal

quotation marks omitted). The public official seeking its protection bears the burden of establishing

its applicability. Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013). Courts engage in a two-

pronged inquiry to determine whether a public official is entitled to qualified immunity. We ask (1)

whether “the officer’s conduct violated a federal right,” and, if so, (2) “whether the right in question

was clearly established at the time of the violation.” Tolan v. Cotton, 572 U.S. 650, 655-56 (2014)

(alterations and internal quotation marks omitted). Courts may decide in their discretion in which

order to consider these prongs. Id. at 656.

       The Fourth Amendment “guarantees ‘[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures[.]’” United States v. Gomez,

877 F.3d 76, 85–86 (2d Cir. 2017) (quoting U.S. Const. amend. IV; first alteration in original).

                                                  3
Traffic stops constitute the “seizure” of a person within the meaning of the Fourth Amendment. Id.

at 86. They must thus be reasonable. In the traffic stop context, reasonableness “requires that an

officer making [the] stop have probable cause or reasonable suspicion that the person stopped has

committed a traffic violation or is otherwise engaged in or about to be engaged in criminal activity.”

Id.

       Even when a stop is reasonable at its inception, it can violate the Fourth Amendment if it is

“prolonged beyond the time reasonably required to complete that mission.” Id. In Rodriguez v.

United States, 135 S. Ct. 1609 (2015), the Supreme Court considered whether a police officer

unconstitutionally seized a motorist in violation of the Fourth Amendment where the officer pulled

the motorist over for a traffic infraction, issued a written warning for that infraction, and then

proceeded to hold the motorist for approximately five minutes more to allow for a dog sniff to be

conducted. The Court ruled that the officer’s conduct violated the Fourth Amendment because the

dog sniff “measurably extend[ed]” the stop and was unrelated to the stop’s “mission.” Id. at 1615–

16. “[A] police stop exceeding the time needed to handle the matter for which the stop was made,”

it advised, “violates the Constitution’s shield against unreasonable seizures.” Id. at 1612. While

“[a]n officer . . . may conduct certain unrelated checks during an otherwise lawful traffic stop[,]. . .

he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily

demanded to justify detaining an individual.” Id. at 1615. The Court emphasized that the “critical

question” in this determination is simply “whether conducting the sniff prolongs—i.e., adds time

to—the stop”; it is not “whether the dog sniff occurs before or after the officer issues a ticket.” Id.

at 1616 (internal quotation marks omitted).



                                                  4
         The sole issue on appeal is whether McLeod plausibly alleged that Stokes violated the

Fourth Amendment by prolonging McLeod’s traffic stop beyond the time necessary to issue a

citation.2 McLeod claims that his complaint so alleged, and that Stokes’s purpose in prolonging

the stop was to allow Stokes and other federal officers to question McLeod about illegal drugs and

to conduct a dog sniff. The district court concluded, and Stokes argues on appeal, that McLeod

failed to allege sufficient facts from which it could be inferred that Stokes was “dilatory” in issuing

the citation. App’x at 57. On de novo review, however, we disagree with that characterization of

the inquiry. The relevant inquiry is not whether Stokes was dilatory in writing a citation, but

whether his pursuit of an unrelated investigation “prolonged” McLeod’s roadside detention. See

Rodriguez, 135 S. Ct. at 1615.

         Here, McLeod alleges that, shortly after he was stopped and as soon as he conceded that his

state inspection sticker was expired, Stokes repeatedly asked McLeod whether his car contained

illegal drugs and requested permission to search McLeod’s vehicle. McLeod further alleges that

Stokes told him that, if McLeod refused to consent to a search, Stokes would call a K9 unit. When

later during the stop McLeod asked two other officers at the scene whether he could leave, they

replied (McLeod avers) that they were “waiting for the K9 unit.” App’x at 8. Finally, McLeod

asserts that he was not permitted to leave until after the K9 unit arrived on scene and the dog sniffed



2
  The district court did not address, and the parties did not brief, whether McLeod’s Fourth Amendment right to be free
of an unreasonably prolonged stop was “clearly established” at the time of the stop. Rodriguez was decided in April
2015, clearly establishing such a right well before Stokes stopped him in June 2016. See also Arizona v. Johnson, 555
U.S. 323, 333 (2009) (“An officer’s inquiries into matters unrelated to the justification for the traffic stop . . . do not
convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend
the duration of the stop.”). We therefore conclude that the right at issue was “clearly established” when Stokes allegedly
violated it.


                                                            5
his vehicle—approximately 35 to 40 minutes after he was first stopped. These allegations support

a reasonable inference that Stokes prolonged the traffic stop beyond the time needed to issue a

citation for McLeod’s expired state inspection sticker and that he did so to pursue an unrelated

investigation into whether McLeod was carrying illegal drugs in his vehicle. This inference supports

McLeod’s Fourth Amendment claim and defeats Stokes’s motion to dismiss.

       We have considered Stokes’s remaining arguments and conclude that they are without

merit. Accordingly, the judgment of the district court is VACATED and the cause is REMANDED

for further proceedings.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk of Court




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