United States District Court, E.D. Arkansas, Jonesboro Division
Marshall jr. United States District Judge
David Erwin alleges that Deputy Sheriff Anthony Ganus
violated his constitutional rights during a May 2018 traffic
stop in Paragould. Erwin says that Deputy Ganus didn't
have probable cause to stop his car; the traffic stop went on
too long; they deputy didn't have probable cause to
search his car or his person; and the search of his person
was too intrusive. Deputy Ganus seeks summary judgment on all
claims. The Court takes the material facts, where genuinely
disputed, in the light most favorable to Erwin. Mann v.
Yarnell, 497 F.3d 822, 825 (8th Cir. 2007).
initial traffic stop was supported by probable cause. Deputy
Ganus started following Erwin's car around 4:30 one
morning after he noticed the car make an abrupt turn,
seemingly to avoid driving in front of where the deputy was
sitting in his car monitoring traffic. The deputy saw Erwin
cross the center line twice; he had dispatch check the
car's tags, which indicated Erwin was the owner and that
Erwin's license was suspended; then the deputy stopped
the car. Probable cause existed to do so. United States
v. Sallis, 507 F.3d 646, 649 (8th Cir. 2007).
Deputy Ganus didn't violate the Fourth Amendment by using
his K9 to do a sniff of Erwin's vehicle or by extending
the traffic stop. When Ganus approached Erwin's car,
Erwin started talking-without prompting-about
methamphetamine. That talk, coupled with Erwin's
suspended license, caused Deputy Ganus to suspect criminal
activity. The officer had a reasonable and articulable
suspicion, which supported running his dog around the car.
United States v. Donnelly, 475 F.3d 946, 952 (8th
Cir. 2007). According to the time log from that morning made
by Greene County's dispatcher, the entire traffic
stop-from the time Deputy Ganus stopped Erwin to the time he
wrote him his ticket-lasted about thirty minutes. No.
34-1 at 8. Erwin says the log doesn't match Deputy
Ganus's affidavit. But they vary only by a minute or two.
Erwin also says the stop lasted more than two hours. He
hasn't offered any admissible evidence on this point;
part of his response is an "affidavit," but it was
not verified, and, unlike his complaint, was not made under
penalty of perjury. Erwin is handling his case without a
lawyer, but he must follow the governing rules of law
nonetheless. Erwin's unsworn statements do not create a
genuine dispute of fact. Conseco Life Insurance Co. v.
Williams, 620 F.3d 902, 910 (8th Cir. 2010).
Deputy Ganus had probable cause to search Erwin's car.
When Ganus's dog-Deks-alerted on the car, that created
probable cause. Donnelly, 475 F.3d at 954-55. And
Erwin hasn't challenged Deks's training or accuracy.
Ibid. Deputy Ganus also had at least arguable
probable cause to search Erwin and then his passenger. After
Deks alerted on the driver's side of Erwin's car, the
deputy searched the vehicle but found nothing. At that point,
it was reasonable for Deputy Ganus to conclude that either
Erwin (or his passenger) possessed whatever prompted
Dek's alert. United States v. Chartier, 772 F.3d
539, 545-46 (8th Cir. 2014).
Last, the search of Erwin's person, which he says was too
intrusive. During a pat down, Deputy Ganus felt an abnormally
large bulge in Erwin's groin area. Erwin said he had a
sock stuffed in his pants. The deputy had Erwin hold up the
back of his pants, unbuckled Erwin's belt, lowered his
pants, and removed the sock to search it for contraband. He
didn't find any. The deputy then searched around
Erwin's waist band with his flashlight to make sure Erwin
wasn't hiding anything. He wasn't. Ganus buckled
Erwin's pants after the search. No. 34-1 at 3.
The stop ended shortly after Deputy Ganus wrote Erwin his
ticket. Erwin's verified complaint mostly echoes these
facts. No. 1 at 10. And this sort of reach-in search
is permissible in these circumstances under United States
v. Williams, 477 F.3d 974, 976 (8th Cir. 2007). The
deputy then patted the passenger down. He found nothing
suspicious, and searched him no further.
also says that Deputy Ganus penetrated him during the search.
No. 36 at 2-3. The deputy tells a different story.
No. 34-1 at 3. Erwin first alleged this penetration
in his earlier motion to reconsider. No. 11 at 1.
That filing, and the "affidavit" part of his
response to the motion for summary judgment are the only
papers that mention this allegation. Neither is verified or
sworn. Erwin has therefore failed to meet proof with proof,
thus creating a genuine dispute of material fact for trial.
Conseco Life Insurance Co., 620 F.3d at 910;
Conolly v. Clark, 457 F.3d 872, 876 (8th Cir. 2006).
motion, No. 33, is granted. Erwin's claims
against him will be dismissed with prejudice. Erwin
hasn't identified John Does 1-3. They will be dismissed
Court directs the Clerk to correct Anthony Ganus's name