Frederick Marc Cooley v. R. Leung, P 8556; E. Ludtke, P 9044

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREDERICK MARC COOLEY,
Plaintiff - Appellee,
v.
R. LEUNG, P # 8556; E. LUDTKE, P #
9044,
Defendants - Appellants.
No. 13-16824
D.C. No.
2:10-cv-01138-RLH-NJK
MEMORANDUM*
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.
FILED
FEB 04 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

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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).
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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
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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
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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
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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

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