United States District Court, E.D. Arkansas, Jonesboro Division
MARSHALL, JR. UNITED STATES DISTRICT JUDGE
Daniel Corby and his wife Cheryl bring several claims against
three defendants. Daniel says Arkansas State Trooper Tony
Hill and Paragould Officers Jason Boling and Aaron Gamber
violated his federal and state rights while searching his
jeep, and his person, and during his arrest. Cheryl says
Trooper Hill also converted her purse without due process.
The Corbys concede their official capacity claims. No. 54
at 1 n.1. Daniel also abandons his claims about another
encounter with Officer Boling two years later. All the
defendants seek summary judgment. The Court takes the
material facts, where genuinely disputed, in the light most
favorable to the Corbys. Mann v. Yarnell, 497 F.3d
822, 825 (8th Cir. 2007).
September 2014, Trooper Hill pulled over a jeep because it
didn't have headlights. Daniel was driving the jeep.
Cheryl was the passenger. She had an outstanding warrant for
failing to appear. Trooper Hill arrested her. Over
Daniel's objection, she let the Trooper search her purse.
Trooper Hill thought Daniel seemed nervous and suspected that
drugs were in the jeep. So he called Officers Boling and
Gamber to conduct a K9 search. They eventually arrived with
Dux, a police dog. Dux circled the jeep twice. On his second
lap he alerted that he smelled narcotics, changing his body
and sitting near the passenger side of the jeep. No. 53
at 4. Daniel says he heard Officer Boling tell Dux to
sit. Over Daniel's objections, Officers Boling and Gamber
searched the jeep. They didn't find anything. Trooper
Hill then had Daniel lean over the hood of Hill's cruiser
and patted him down. During the search he felt a container,
which he thought held drugs. It was potpourri, which can be
type of synthetic marijuana. No. 40 at 17-18; No. 53 at
5. Trooper Hill arrested Daniel for possession of a
controlled substance. Another officer arrived to take Daniel
to the Greene County Detention Center; Trooper Hill took
Cheryl. He helped book her and left her purse on the booking
desk. No. 53 at 7. At the jail, Daniel ended up in
solitary confinement because he wouldn't stop cussing
other inmates. He was released six days later. Daniel was
found guilty in District Court, appealed, and the Circuit
Court dismissed the charge.
Cheryl's constitutional claim against Trooper Hill about
her purse fails. Even if her claim isn't barred under
Hudson v. Palmer, 468 U.S. 517, 539 (1984), Trooper
Hill didn't deprive Cheryl of her purse within the
meaning of the Due Process Clause. Soldal v. Cook County,
Illinois, 506 U.S. 56, 61 (1992). He searched it, left
it for her at the police station, and never damaged it.
No. 36-5 at 19-20. Similarly, any state-law
conversion claim fails because Trooper Hill's actions
weren't inconsistent with Cheryl's property rights.
Schmidt v. Stearman, 98 Ark.App. 167, 173-74, 253
S.W.3d 35, 41-42 (2007).
Daniel claims the officers unlawfully extended the traffic
stop, didn't have probable cause to search his jeep,
didn't have probable cause to search his person, and
didn't have probable cause to arrest him. Daniel
challenges, in particular, Officer Boling's probable
cause determination that led to the search of his jeep. Three
of Daniel's arrest-related claims fail; his jeep-related
search claim against Officer Boling survives.
the length of the stop was reasonable. United States v.
Anguiano, 795 F.3d 873, 876-77 (8th Cir. 2015). Trooper
Hill obtained information about Cheryl and Daniel. Then he
arrested Cheryl. Daniel seemed anxious to the Trooper.
Reasonably suspecting some criminal activity, the Trooper
waited about fifteen minutes on the other officers to bring
Dux. The officers were diligent; the stop's length
didn't violate the Constitution. United States v.
Bloomfield, 40 F.3d 910, 916-17 (8th Cir. 1994) (en
Trooper Hill had at least arguable probable cause to search
Daniel. After Dux alerted on Daniel's jeep, Officers
Boling and Gamber didn't find anything. Daniel was the
jeep's last occupant. It was therefore reasonable to
conclude that he might possess the contraband. United
States v. Chartier, 772 F.3d 539, 545-46 (8th Cir.
Trooper Hill had a reason to arrest Daniel. The Trooper
believed Daniel illegally possessed potpourri. ARK. CODE ANN.
§ 5-64-419; Brodnicki v. City of Omaha, 75 F.3d
1261, 1264-65 (8th Cir. 1996). Daniel had admitted his
possession during the search. No. 40 at 17-18.
Court, though, cannot conclude as a matter of law that
Officer Boling had arguable probable cause to search
Daniel's jeep. Dux is a reliable police dog. No.
36-6; Florida v. Harris, 568 U.S. 237, 243-47 (2013).
But Daniel says that Officer Boling created the probable
cause by telling Dux to sit and alert. No. 36-3 at
5, 7. Officer Boling denies this. He says he can't
make Dux alert. No. 36-4 at 7. All this testimony
creates a genuine dispute of material fact. Because Dux's
alert is critically important in the probable cause analysis,
a forced alert would undermine the basis for searching this
jeep. See United States v. Donnelly, 475 F.3d 946,
955 (8th Cir. 2007).
factual dispute, however, doesn't affect the legal
analysis about Officer Gamber or Trooper Hill. Daniel
hasn't offered any evidence that they were aware of or
involved in the allegedly false alert. Parrish v.
Ball, 594 F.3d 993, 1001 (8th Cir. 2010). Officer Gamber
therefore had arguable probable cause for searching the jeep
based on Dux's alert; and Trooper Hill likewise had
arguable probable cause for searching Daniel.
Hill didn't violate Daniel's First Amendment rights
in retaliation for his words at the scene. A
retaliatory-arrest claim requires that the arrest lack
probable cause. Nieves v. Bartlett, 139 S.Ct. 1715,
1725-26 (2019); Waters v. Madson, 921 F.3d 725, 741
(8th Cir. 2019). And a retaliatory-detention claim requires
that the detention lack reasonable suspicion.
Waters, 921 F.3d at 736-38, 741-42. Trooper Hill had
probable cause to arrest Daniel for admittedly having
potpourri. Similarly, Trooper Hill had a reasonable suspicion
to search Daniel's jeep, even though it would require
some delay. The initial stop for no headlights, Cheryl's
warrant, and Daniel's nervous behavior created a reason
to detain the couple briefly to get a K9 search done.
United States v. Foley, 206 F.3d 802, 806 (8th Cir.
Daniel also argues in passing that the officers deprived him
of due process after the arrest. He says he didn't get a
timely probable cause hearing, plus the Greene County
officers wrongfully set his bond. But he hasn't pointed
to any facts showing that these officers participated in
scheduling his first appearance. And nothing of record shows
that the individual officers controlled Daniel's bond.
Walden v. Carmack, 156 F.3d 861, 874 (8th Cir.
Boling and Gamber's motion for summary judgment, No.
35, is mostly granted and partly denied. Trooper
Hill's motion, No. 37, is granted. For every
federal claim that is dismissed, the parallel claims under
the Arkansas Constitution are also dismissed: they turn on
the same facts; and the state law isn't different from
federal law. All Cheryl's claims are dismissed with
prejudice. We'll have a trial on Daniel's remaining
search claims (federal and state) against Officer Boling.
First, did he prompt Dux's alert by telling the dog to
sit? If not, Officer Boling had arguable probable cause to
search. Second, if Officer Boling told Dux ...