ROBERT C. JONES, United States District Judge.
This case arises out of alleged defamation, illegal searches and seizures, and other harassment of an Elko County employee by several deputy sheriffs based on a private dispute between the employee and a deputy. Pending before the Court is a Motion for Partial Summary Judgment re Qualified Immunity (ECF No. 57). For the reasons given herein, the Court grants the motion in part and denies it in part.
I. FACTS AND PROCEDURAL HISTORY
A. The Parties
At the time the Verified Complaint ("VC") was filed, Plaintiff Richard Pike was employed by Defendant Elko County (the "County") as the Director of the City of Jackpot Recreation Center (the "Center"). (V. Compl. ¶ 10, May 25, 2012, ECF No. 1). Plaintiff's supervisor was Director of Elko County Public Works Lynn Forsberg. (See id. ¶ 19). Defendants J. Brad Hester and Sean Munson were employed by the County as deputy sheriffs with Defendant Elko County Sheriff's Office ("ECSO"). (Id. ¶¶ 11-12). Defendants Rick Keema and Jim Pitts were also employed by the County as ECSO Under-Sheriff and Sheriff, respectively. (See id. ¶¶ 13-14). Plaintiff and Hester have a history of animosity arising out of Plaintiff's previous supervision over Hester's minor child as assistant coach of a high school football team during the Fall of 2008. (See id. ¶ 18).
B. The First Search
Plaintiff has had an office at the Center since about September 2007, where he keeps personal property such as photographs. (Id. ¶¶ 21-23). In or about August 2011, Hester (who was at that time a sergeant),
In or about October 2011, ECSO informed Plaintiff of the August 2011 search. (Id. ¶ 38). Plaintiff presented a grievance to ECSO Lieutenant Marvin Morton about the search, and Morton promised to "look into it." (Id. ¶ 39). Plaintiff alleges that Under-Sheriff Keema's investigation into the illegal search on behalf of ECSO was intentionally deficient. (See id. ¶ 40). However, Sheriff Pitts and Under-Sheriff Keema ultimately "sustained" the investigation, meaning they found that an illegal search had occurred; still, as is their usual custom and practice, they refused to properly punish Hester, but rather downplayed his illegal conduct in order to shield him from civil liability and criminal prosecution, giving him only a written reprimand and three days unpaid leave. (Id. ¶ 41).
C. The Second Search
On or about October 25, 2011, Munson, accompanied by former ECSO Deputy Steve Church, while in uniform and without a warrant, picked the lock to an exterior door of the Center. (Id. ¶ 43). Munson and Church became trapped when a door locked behind them that they could not reopen, so they called Moore to free them. (Id. ¶ 44). Munson had broken into the Center multiple times in the past in order to teach deputies how to break into buildings. (Id. ¶ 45). Plaintiff consented to neither search, and Forsberg did not authorize either of them. (Id. ¶¶ 36-37, 46-47).
D. Hester's Defamation of Plaintiff
Hester ordered the illegal August 2011 search of the Center based upon the maliciously false pretense that Plaintiff was selling ecstasy to schoolchildren, which claim Hester made to Forsberg, Munson, and Moore. (Id. ¶¶ 48-50). On September 22, 2011, Hester went to the office of the Dean of Students and Athletic Director of Jackpot Combined School Kim Smith, to talk about Plaintiff and Jackpot Combined School Football Coach Jorge Perez. (Id. ¶ 51). At the meeting, Hester maliciously told Smith that Plaintiff was a "pot head," "one of Jackpot's biggest druggies," and "just threw his bong and pipe away a couple of weeks ago." (Id. ¶ 52). Hester made these allegations in order to have Plaintiff removed as Head Coach of the Jackpot Football Team so that Hester could secure that position for himself. (Id. ¶ 53). The official letter in which Smith memorialized Hester's allegations has since been widely disseminated, adversely affecting Plaintiffs personal and professional reputation. (Id. ¶¶ 54-55). In or about October 2011, Plaintiff and James
E. Hester's Harassment and Plaintiff's Protective Orders Against Hester
After ECSO began the internal affairs investigation of Hester, Hester began driving his ECSO vehicle to Plaintiff's place of residence and work over the span of several months, up to seven times a day, in order to stop and stare at Plaintiff in a hostile and threatening manner. (Id. ¶ 64). Hester did this in order to make Plaintiff fear for his life and safety, as well as the lives and safety of those around him. (Id. ¶ 65).
On November 15, 2011, Plaintiff filed an application for an Order of Protection Against Stalking, Aggravated Stalking, or Harassments against Hester with the Elko County Justice Court. (Id. ¶ 68). Judge Al Kacin of that court entered a Temporary Order for Protection (the "First TOP") that same day. (Id.). At the December 12, 2011 hearing on the application, at least nine witnesses testified, and Judge Kacin later entered an Extended Order of Protection (the "EOP"), finding by a preponderance of the evidence that Hester had stalked Plaintiff in violation of Nevada Revised Statutes section ("NRS") 200.575(1). (Id. ¶ 69). Judge Kacin specifically found: (1) Plaintiff felt frightened and intimidated by Hester's conduct, including the illegal search of his office and the "stop and stare" incidents; (2) Hester's conduct would have intimidated a reasonable person; and (3) Hester did not have lawful authority to search Plaintiff's office and that the search was colored by Hester's animosity towards Plaintiff. (Id.). On March 2, 2012, Plaintiff filed a second application for an Order of Protection Against Stalking, Aggravated Stalking, or Harassments against Hester with the Elko County Justice Court. (Id. ¶ 70). Judge Barbara Nethery of that court entered a Temporary Order for Protection (the "Second TOP") that same day. (Id.).
F. The Present Case
Plaintiff sued the County, ECSO, Hester, Munson, Keema, and Pitts in this Court on ten causes of action: (1) Fourth Amendment violations under 42 U.S.C. § 1983 (all Defendants); (2) Defamation (Hester); (3) False Imprisonment (Hester); (4) Intentional Infliction of Emotional Distress ("IIED") (Hester); (5) Conversion (Hester); (6) Invasion of Privacy (Hester and Munson); (7) Negligent Hiring (Pitts, ECSO, and the County); (8) Negligent Retention (Pitts, ECSO, and the County); (9) Negligent Supervision (Pitts, ECSO, and the County); and (10) Respondeat Superior (ECSO and the County).
The County and Hester jointly moved to dismiss the state law claims under Nevada's anti-SLAPP statute, and the Court denied the motion. The Court ruled that Plaintiff had made out a plausible case under the federal pleading standards as applied to the relevant state law substantive standards, including the anti-SLAPP defense, but that even if the Court were to have applied the state anti-SLAPP statute's evidentiary burden shifting procedure, the claims would survive, because the VC was verified and contained allegations sufficient to satisfy Plaintiff's shifted burden.
Plaintiff asked the Court to rule that the EOP barred certain issues from relitigation. The Court granted the motion in part, ruling that the findings in the EOP that Hester exceeded his lawful authority in willfully engaging in a course of conduct
Defendants moved to preclude the admission of expert testimony by James Andre Boles. The Court granted that motion in part and denied it in part, precluding Boles's proffered testimony as to the law of the First and Fourth Amendments but not precluding his proffered testimony as to standards and practices of internal affairs investigations and his opinion as to the investigation in this case, subject to expert qualification at trial.
Plaintiff filed two motions for partial offensive summary judgment and a motion for leave to amend. First, Plaintiff asked the Court to grant him offensive summary judgment on his IIED claim based on the preclusive effect of the EOP. The Court denied the motion, leaving to a jury the issue of whether Hester's actions were "extreme and outrageous" under state law. Second, Plaintiff asked the Court to rule that the individual Defendants were not entitled to qualified immunity against the § 1983 claim. The Court found that Plaintiff had satisfied his initial burden to show that it would have been clear to a reasonable officer that the warrantless search of Plaintiff's office in August 2011 without consent and with no exigency was a violation of the Fourth Amendment. The issue of the lawfulness of the search was in fact precluded from relitigation due to the EOP, at least as to Hester. Defendants had provided no evidence in response to satisfy their shifted burden — they had not timely responded at all — so the Court granted the motion. Third, Plaintiff asked for leave to amend to add four claims arising out of acts occurring after the date of the VC. The Court granted the motion, permitting Plaintiff to file the proposed pleading attached to the motion. Defendants asked the Court to bifurcate the trial as to the individual claims and the Monell claim against the County. The Court denied the motion.
Defendants appealed the grant of offensive summary judgment on the issue of qualified immunity and asked the Court to reconsider. The Court denied the motions. First, Hester argued in his motion that he had discovered new information that undermined the EOP. But the Court ruled that any attack on the EOP would have to be made through the state courts. This Court could only find the EOP non-preclusive if there were evidence it had been vacated or otherwise voided, but Hester could not ask this Court essentially to review the state court's ruling. Nor did it matter to the EOP's preclusive effect as against Hester that there were other parties to the present case. Hester had also conflated issue preclusion with claim preclusion. The Court had already noted that the ultimate Fourth Amendment claim was not precluded, but the issues determined in the state court were. Nor did the state court actions for orders of protection preclude the state law torts in this case, because there was no evidence those claims had been litigated there. Second, the other Defendants argued that the Court should not have granted qualified immunity against the § 1983 claim because they did not have a fair opportunity to respond. The Court rejected that argument, but the Court of Appeals later reversed, finding that the response filed later the same day as the Court's order granting the motion had been timely.
While the timeliness of the response on the qualified immunity issue was on appeal,
The qualified immunity issue is back before the Court after interlocutory appeal. At a status conference, the parties indicated the motion had been sufficiently briefed.
II. SUMMARY JUDGMENT STANDARDS
A court must grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. See id. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In determining summary judgment, a court uses a burden-shifting scheme. The moving party must first satisfy its initial burden. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citation and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two
If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548.
At the summary judgment stage, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505. The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249-50, 106 S.Ct. 2505. Notably, facts are only viewed in the light most favorable to the nonmoving party where there is a genuine dispute about those facts. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). That is, even where the underlying claim contains a reasonableness test, where a party's evidence is so clearly contradicted by the record as a whole that no reasonable jury could believe it, "a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id.
To state a claim under § 1983, a plaintiff must allege: (1) that a right secured by the Constitution or laws of the United States was violated; and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). There is no respondeat superior liability under § 1983. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Natural persons sued in their individual capacities may enjoy qualified immunity against claims of constitutional violations. Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). An official is not entitled to qualified immunity if: (1) there has been a constitutional violation; and (2) the state of the law was clear enough at the time of the violation that a reasonable person in the defendants' position would have known his actions violated the plaintiff's rights. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Courts have
In order for Plaintiff to obtain offensive summary judgment on the qualified immunity issue, he must first show he is entitled to offensive summary judgment on the constitutional claim itself, because a constitutional violation is an element of a finding of no qualified immunity. See Saucier, 533 U.S. at 201, 121 S.Ct. 2151. The Fourth Amendment claim is based upon allegedly unlawful searches of the Center in August 2011 and October 2011. (See V. Compl. ¶¶ 21-47).
A. Pitts and Keema
Pitts and Keema are entitled to summary judgment against the Fourth Amendment claim, because there is no evidence they directed the search, ratified it after learning of it, or established any policy of warrantless searches.
B. The Second Search (Munson)
The Court grants summary judgment to Munson as to the second search. There is no evidence Plaintiff's private office was searched during the October 2011 entry of the Center by Munson and Church, and Plaintiff therefore has no standing to complain of that search. The only evidence is that Munson and Church broke into the Center, i.e., the exterior door, for the purpose of training Church how to do it.
C. The First Search (Hester and Munson)
Plaintiff provides evidence that the August 2011 search of his office at the Center was done without a warrant, in the absence of any exigency, and without the permission of either Plaintiff or Forsberg. Plaintiff, Smith, Forsberg, Ward, Hester, Munson, and others testified at the EOP hearing. (See EOP add. 1, para. 2, ECF No. 57-1, at 2). The findings in the EOP are precluded from relitigation here as against Hester, but not as against Munson. The state court found by a preponderance of the evidence that Hester had stalked Plaintiff as defined in NRS 200.575(1), but had not harassed him or stalked him in an aggravated fashion as defined in NRS 200.571 and 200.575(2). (See id. add. 1, para. 3). Although that finding cannot be relitigated, it is relevant only to the invasion of privacy and IIED torts, not the Fourth Amendment claim under § 1983. The EOP also states, "Pike testified that he applied for the Protection Order after Hester, among other things; (a) conducted an unauthorized, warrantless search for controlled substances in Pike's office at the Jackpot Recreation Center...." (Id. add. 2, para. 1). That statement does not constitute a finding of an unlawful search, but only recounts Plaintiff's claim to that effect. However, the EOP goes on to state:
Id. add. 2, para. 3 (footnote omitted). The omitted footnote states:
Id. add. 2, n.1.
Even assuming the EOP were not preclusive against Hester, in his separate deposition taken in this case Forsberg testified that neither Hester, Munson, nor anyone else at ECSO were authorized to hold a key to the Center or Plaintiff's office within the Center. (Forsberg Dep. 23:13-16, 24:4-6, 24:24-25:6, ECF No. 57-1, at 48). In August 2011, Hester had pulled Forsberg over by activating the overhead lights of his patrol car while in uniform and asked Forsberg if he could search the Center for drugs, because Hester believed Plaintiff and another person were selling drugs out of the Center. (Id. 26:9-28:12). Forsberg told Hester that "if he wanted to search the recreation center, he could call me, and I would let him in." (Id. 28:17-19). Hester told Forsberg that he had a key, which Forsberg found troubling because Hester had no reason to have a key to the Center. (Id. 29:7-11). Forsberg did not respond to Hester's statement that he had a key, but a few days later he had the locks changed after a meeting with Pitts, Keema, and County Manager Rob Stokes, which was the first time he had ever had to change the locks since he became Public Works Director in 1997. (Id. 29:16-30:16, 34:2-40:11). Forsberg was not present during the August 2011 search, and he did not "direct" the search. (Id. 31:25-32:3, 33:6-12). Forsberg was aware of no other case where ECSO officers had searched county offices without a county representative being present. (Id. 33:22-34:1).
Plaintiff adduces an excerpt from an employee handbook (as do Defendants), which states, "County vehicles, lockers, desks, filing cabinets, files, etc. remain the property of the County and may be subject to County initiated searches at
Moore, the officer who searched Plaintiff's office with Hester using the dog, testified that Hester initiated the search without a warrant based on his belief that Plaintiff was selling drugs such as ecstasy to schoolchildren, and that Moore had not been directed by any other County official to conduct the search. (Moore Dep. 15:6-16:21, ECF No. 57-2, at 2). Moore also reported at a December 2, 2011 interview with ECSO Sergeant Nick Czegledi that when he entered Plaintiff's office, he had not previously realized the door led to any office; he had always thought it was a utility closet. (Moore Interview Tr. 5:17-23, ECF No. 57-3, at 33). Hester told Moore to check Plaintiff's office with his dog "Benz." (Id. 6:1-16). Moore didn't see Hester open the door, which he knew was usually locked, and he didn't know how Hester opened it. (Id. 6:15-20). Hester told Moore to have Benz search the office because it was Plaintiff's office and he thought narcotics such as ecstasy were inside. (Id. 6:23-25). Benz walked around the room without alerting, and as the dog was walking out Hester made a comment that "stood out in my mind. It really bothered me." (Id. 7:5-6). Hester asked "Are you sure there's no narcotics in there?" (Id. 7:6-7). When Moore replied that the dog hadn't alerted, Hester told him to check it again; Moore complied, but Benz again did not alert. (Id. 7:7-15). It was Moore, not Hester as alleged by Plaintiff, who tapped on a file cabinet, but it was simply to engage and motivate the dog to search generally, not to direct a search of the cabinet in particular. (See id. 7:10-12).
The Court finds that Plaintiff has provided enough evidence to satisfy his initial burden on summary judgment, i.e., to entitle him to a directed verdict on the qualified immunity issue at trial if his evidence went unrebutted. Regardless of any local employer policies, "[s]earches and seizures by government employers or supervisors of the private property of their employees ... are subject to the restraints of the Fourth Amendment." O'Connor v. Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). Such searches violate the Fourth Amendment when the conduct by the public employer infringes "an expectation of privacy that society is prepared to consider reasonable." Id. (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (internal quotation marks omitted)). Factors to consider in the office context are the intent of the authors of the Fourth Amendment, the uses to which an individual has put the location, and the societal understanding that certain areas deserve
Id. at 717 (emphasis added). In other words, according to the O'Connor plurality, under some circumstances there may be no reasonable expectation of privacy in private government office space as against the government employer, although there is still a reasonable expectation of privacy in private government office space as against a law enforcement official searching in that capacity. The O'Connor plurality itself noted that although it believed a reasonable expectation of privacy as against the government employer only applied in that case based on its facts, a majority of justices held that personal government office space was categorically protected not only from warrantless searches by the police (all nine justices agreed on that point), but also from searches by the government employer. See id. at 718, 107 S.Ct. 1492; id. at 730, 107 S.Ct. 1492 (Scalia, J., concurring in the judgment); id. at 732, 107 S.Ct. 1492 (Blackmun, J., dissenting).
The Court of Appeals has since found a reasonable expectation of privacy in private government offices as against law enforcement searches. See, e.g., United States v. Ziegler, 474 F.3d 1184, 1189-90 (9th Cir. 2007) (citing Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968)) (noting that there is a reasonable expectation of privacy in one's work office, even if the office is shared). The intervening case of City of Ontario, Cal. v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) does not change the analysis, because the Quon Court explicitly declined to resolve whether the plurality opinion in O'Connor controlled the reasonable expectation of privacy test in the government workplace context. Id. at 757, 130 S.Ct. 2619. And that case is distinguishable from the present case even under the O'Connor plurality's viewpoint, because the police there searched the employee's phone in the capacity of an employer, not in the capacity of law enforcement investigators. Id. at 752-53, 130 S.Ct. 2619.
Here, that means that the employee handbook cannot even have overridden Plaintiff's expectation of privacy in his office at the Center as against Forsberg, much less as against Hester and Munson. Regardless of the employee handbook, Forsberg cannot have conducted or permitted a warrantless search of Plaintiff's personal office space without Plaintiff's
Munson, however, is not as culpable as Hester. According to Munson, he was on duty and in uniform during the August 2011 search, but Hester was not on duty. (Munson Dep. 16:18-22, ECF No. 57-2, at 72). Munson believed that Hester had permission to search from Forsberg. (Id. 18:1-5). In fact, Hester told Munson before the search that he would attempt to obtain permission and a key from Forsberg. (Id. 34:17-20). Plaintiff's office was "a very small room," and only Hester, Moore, and the dog entered Plaintiff's office, not Munson. (Id. 39:12-20). The Court finds that Munson (who was not with Hester during the conversation with Forsberg) had the right to believe Hester had obtained Forsberg's permission when he accompanied Hester on the search. And there is no evidence Munson himself even entered Plaintiff's office.
Defendants offer little in opposition apart from the employee handbook, but there is simply no evidence that the search here was "[c]ounty initiated," which is the type of searches the handbook permits. Defendants argue that because Plaintiff knew or should have known his office was subject to no-notice searches by Forsberg or other county officials, he had no reasonable expectation of privacy in his office as to a search by ECSO officers, either. But that is simply wrong under O'Connor. First, as noted, supra, only four of the O'Connor Court's members would have held that an employee handbook such as the one here could make government employer searches of employee's private offices reasonable under the Fourth Amendment. A majority of justices would have held that such searches were just as presumptively unreasonable as similar searches by law enforcement officers. Second, even assuming the plurality's viewpoint on the issue controlled on the law, Defendants have adduced no evidence by which a reasonable jury could find that Forsberg permitted the search.
Defendants also argue that the search was "County initiated" under the employee handbook, because ECSO is an arm of the County. The Court rejects this argument. First, it is clear that the County official with the ability to control access to the Center (Forsberg) did not permit the search. Second, Defendants' reading of the provision would impermissibly obliterate the constitutional distinction between searches by law enforcement officials and non-law-enforcement government employers in every case where the government
Defendants also argue that dog sniffs are simply not searches under the Fourth Amendment. The Court of Appeals has ruled that an airport dog sniff of luggage that the owner was not carrying at the time did not interfere with the owner's luggage in any meaningful way and was therefore not a Fourth Amendment search. See United States v. Beale, 736 F.2d 1289, 1291-92 (9th Cir. 1984). But private government offices have greater Fourth Amendment protection than checked baggage areas at public airports. Although the sniffs of the desks and file cabinets here out of Plaintiff's presence cannot have annoyed him the same way as a sniff of his person or property in his immediate possession, the same would be true of a sniff of the interior of his residence while he was away. The cases where courts have approved dog sniffs as not constituting Fourth Amendment searches based on their low level of intrusiveness have relied on the critical fact that the sniffs were conducted from places where the officer had a right to be. See, e.g., Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (sniff of the exterior of an automobile in public); United States v. Lingenfelter, 997 F.2d 632 (9th Cir. 1993) (sniff of the exterior of a warehouse from a public alleyway). Because dog sniffs are minimally invasive, they do not implicate the Fourth Amendment when conducted in public areas unless they meaningfully interfere with personal property or freedom of movement, see Rodriguez v. United States, ___ U.S. ___, 135 S.Ct. 1609, 1616, 191 L.Ed.2d 492 (2015), but they are invasive enough to implicate the Fourth Amendment when conducted in constitutionally protected areas, and where there is no express permission or at least implied license for the officer to stand where he does when he conducts the search, the conduct is not objectively reasonable under the Fourth Amendment, see, e.g., Florida v. Jardines, ___ U.S. ___, 133 S.Ct. 1409, 1415-17, 185 L.Ed.2d 495 (2013). There is no evidence here indicating any express or implied invitation by either Plaintiff or Forsberg for Hester to have walked through Plaintiff's office with a dog sniffing about.
Jardines was not decided until after the August 2011 search, but the rule at issue here was already clear. The crux of the dispute between the majority and the dissent in Jardines was not over whether a dog sniff conducted from a protected area constituted a Fourth Amendment search. The Jardines dissenters agreed it had been clear for some time that an expectation of privacy in scents emanating from a protected area was only unreasonable as against those standing in places members of the public may lawfully stand. See id. at 1424-25 (Alito, J., dissenting). The dissenters simply disagreed that the traditional common law license for persons to approach a home and stand on the porch excluded officers using dogs to detect emanations from within the home. See id. at 1421-24. Here, there is no question that Hester and Munson were not in a place members of the public may lawfully stand
In summary, based on the evidence adduced there is no genuine issue of material fact that it would have been clear to a reasonable officer in Hester's position that the warrantless dog sniff of Plaintiff's private office space was unlawful. The Court therefore grants summary judgment in favor of Plaintiff and against Hester on the qualified immunity issue as to the Fourth Amendment claim.
IT IS HEREBY ORDERED that the Motion for Partial Summary Judgment re Qualified Immunity (ECF No. 57) is GRANTED IN PART and DENIED IN PART. Keema, Pitts, and Munson are entitled to summary judgment against the Fourth Amendment claim based on qualified immunity, but Plaintiff is entitled to summary judgment against Hester.
IT IS SO ORDERED.