Brittany Harris v. Kimberly Klare , 902 F.3d 630 ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0198p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRITTANY HARRIS, ┐
Plaintiff-Appellant, │
│
> No. 17-6051
v. │
│
│
KIMBERLY KLARE, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 2:15-cv-00138—David L. Bunning, District Judge.
Argued: May 2, 2018
Decided and Filed: September 5, 2018
Before: COLE, Chief Judge; GIBBONS and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: David L. Engler, ENGLER LAW FIRM, Warren, Ohio, for Appellant. Claire E.
Parsons, ADAMS, STEPNER, WOLTERMANN & DUSING, Covington, Kentucky, for
Appellee. ON BRIEF: David L. Engler, ENGLER LAW FIRM, Warren, Ohio, for Appellant.
Claire E. Parsons, Jeffrey C. Mando, ADAMS, STEPNER, WOLTERMANN & DUSING,
Covington, Kentucky, for Appellee.
_________________
OPINION
_________________
JOHN K. BUSH, Circuit Judge. Seventeen-year-old Brittany Harris was a passenger in
her family’s minivan when it was pulled over by police officers in Erlanger, Kentucky. Later,
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Officer Kimberly Klare was summoned to escort Harris to a nearby restroom and, while doing
so, searched her in allegedly inappropriate and unlawful ways. Harris brought suit under
42 U.S.C. § 1983, claiming that the search violated the Fourth Amendment. This appeal requires
us to determine whether the district court erred in granting summary judgment to Klare. Because
a reasonable jury could find that Klare’s search of Harris was unconstitutional and that Klare is
not entitled to qualified immunity, we reverse.
I
A. Factual Background
Because the district court granted summary judgment, we review the facts “in the light
most favorable to the nonmoving party,” in this case, Brittany Harris. Tennial v. United Parcel
Serv., Inc., 840 F.3d 292, 301 (6th Cir. 2016). Viewed in that light, the facts are as follows.
On May 22, 2014, Harris, along with her mother, father and older sister, went out for
dinner at TGI Friday’s. On the way home, their minivan was stopped by City of Erlanger police
officers because of an obstructed license plate. The officers then conducted an investigation of
Harris’s mother, who was the driver. Her mother was arrested for obstructing a license plate,
driving with no registration plates, driving with a suspended license, and possession of a forged
instrument.1
During the investigation, officers also noticed that Harris’s father had “equipment for his
work” in the vehicle, including “tools, like screwdrivers and wrenches,” some of which were
“sitting out” and some of which were “in containers.” Based on the presence of these tools in
conjunction with the violations listed above, the officers began to suspect that Harris’s mother
was engaged in drug activity. They sent for a drug dog, but it found no drugs.
The wait for the drug dog to arrive took about an hour, and Harris needed to use the
restroom. In order to escort Harris to the restroom, the police summoned a female officer,
Kimberly Klare. Before Klare escorted Harris to the restroom, the officers asked Harris’s father
if Klare had his permission to do so, and he consented. While waiting near the minivan, Harris
1The record is unclear as to whether Harris’s mother was ever charged with any crime.
No. 17-6051 Harris v. Klare Page 3
observed Klare “put her hand on her gun . . . three, four times.” Harris and Klare did not leave
until after Harris’s mother had been arrested and, according to Harris, after the dog’s sniffing—
and indication that no drugs were in the minivan—was completed.2
En route to the restroom, Klare told Harris that she “may have to search” her. Klare then
asked Harris, “would you step over here,” to which Harris answered “yes” and walked to the
requested location. By this time, the snap securing Klare’s gun was unfastened, and she placed
her hand on the gun five times while talking to Harris.
The parties agree that at this point, Klare secured Harris’s hands behind her back. What
happened next is disputed, but, as noted, for purposes of this summary judgment appeal, we must
accept Harris’s version of events. She claims that, as part of a pat down, Klare placed her hands
under Harris’s brassiere and pinched the girl’s breasts, causing bruising. According to Harris,
Klare told her that she searched her the way she did because a previous suspect at that location
had “stuffed needles in her bra” and because “[y]ou have that look,” “[y]ou have the look of a
junkie whore.” But Klare found no drugs, drug paraphernalia, weapon, or other contraband on
Harris.
B. Procedural History
Harris sued Klare, asserting claims under 42 U.S.C. § 1983 and Kentucky law.3 Klare
moved for summary judgment, arguing that Harris had consented to the search and that, even if
she had not, Klare was protected by qualified immunity. Harris responded that any consent she
had given to the search was invalid, both because she had been illegally seized and because her
consent was coerced rather than voluntarily obtained.
The district court agreed with Klare. It held that the officers had probable cause to stop
the minivan because of the obscured license plate and that the presence of Harris’s father’s tools
and equipment in the car, in conjunction with her mother’s alleged misfeasance, created a
reasonable suspicion of drug activity, thereby permitting the officers to prolong the seizure while
2Klare disputes that the drug-dog sniffing had been completed before she escorted Harris away from the
minivan.
3The state law claims are not at issue in this appeal.
No. 17-6051 Harris v. Klare Page 4
they completed their investigation. Declining to find that Harris had in fact consented to the
subsequent search, the district court instead held that a reasonable officer in Klare’s position
nonetheless could believe that Harris had consented and that Klare was therefore protected by
qualified immunity.
II
We review de novo a district court’s grant of summary judgment. Watson v. Cartee,
817 F.3d 299, 302 (6th Cir. 2016). Summary judgment is appropriate only when “no genuine
dispute as to any material fact” exists and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
The Fourth Amendment begins: “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
U.S. Const. amend. IV. A search is per se reasonable, however, if the subject of that search
freely and voluntarily gives consent to the search.4 United States v. Ivy, 165 F.3d 397, 401 (6th
Cir. 1998).
Harris argues that Klare’s search was unreasonable for two reasons. First, if an
individual is illegally seized, her consent to a search is generally “tainted by the illegality” of that
seizure and therefore insufficient to make the search reasonable. Florida v. Royer, 460 U.S. 491,
507–508 (1983); see also United States v. Richardson, 949 F.2d 851, 858 (6th Cir. 1991).
Second, consent does not render a search reasonable if that consent is not “unequivocal, specific
and intelligently given, [and] uncontaminated by any duress or coercion.” United States v.
Beauchamp, 659 F.3d 560, 571 (6th Cir. 2011) (quoting United States v. Moon, 513 F.3d 527,
537 (6th Cir. 2008)).
Klare disputes that either basis to invalidate the search applies here. She also raises the
defense of qualified immunity, under which Klare is entitled to summary judgment “unless the
4Not all searches require consent to be reasonable, but Klare does not argue that the search was reasonable
absent Harris’s consent.
No. 17-6051 Harris v. Klare Page 5
facts alleged would permit a reasonable juror to find that . . . the [violated] right was clearly
established” at the time of the search. Ellison v. Balinksi, 625 F.3d 953, 959 (6th Cir. 2010).
A. The Seizure
The parties agree that if Harris was not legally seized at the time of the search, the search
was itself illegal. They also agree that the initial seizure of the minivan and its passengers, under
suspicion of a moving violation, was legal. And they agree that because that seizure was an
“investigative detention rather than a custodial arrest . . . [o]nce the purposes of the initial traffic
stop [were] completed, there is no doubt that the officer[s] [could] not further detain the vehicle
or its occupants unless something that occurred during the traffic stop generated the necessary
reasonable suspicion to justify a further detention.” United States v. Bailey, 302 F.3d 652, 657–
58 (6th Cir. 2002) (quoting United States v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995)).
Thus ends the parties’ agreement. Klare’s position is that Harris failed to raise before the
district court whether the continued detention was justified at the time Klare searched her, and
thereby forfeited her right to press that issue before this court. Klare also contends that,
regardless of whether Harris forfeited this argument, the presence of tools, in conjunction with
the apparent obfuscation of the license plate and Harris’s mother’s other traffic violations,
created the reasonable suspicion that the vehicle was involved with the drug trade, thus justifying
the continued detention of Harris and her family. Harris disagrees, asserting that she did raise
the issue before the district court and that the above-listed facts were insufficient to create a
reasonable suspicion of drug activity.
1. Forfeiture
“Ordinarily an appellate court does not give consideration to issues not raised below.”
Hormel v. Helvering, 312 U.S. 552, 556 (1941). This reticence to consider unraised issues is
born of the need “to ease appellate review by ensuring that district courts consider issues first,
and to prevent surprise to litigants.” Great Am. Ins. Co. v. E.L. Bailey & Co., 841 F.3d 439, 443
(6th Cir. 2016). This rule is not absolute, however, and it is within the ambit of our discretion to
entertain questions not raised below. Friendly Farms v. Reliance Ins. Co., 79 F.3d 541, 544–45
(6th Cir. 1996).
No. 17-6051 Harris v. Klare Page 6
In the matter sub judice, Klare moved for summary judgment, arguing that Harris had
consented to the search. Harris filed a memorandum in opposition to that motion, arguing that
her consent was invalid because she was seized without reasonable suspicion that she was
engaged in illegal activity. Harris did not, however, explain why she believed the officers lacked
reasonable suspicion. Nor did she make clear whether her position was that they had always
lacked reasonable suspicion of criminal activity or whether the reasonable suspicion had
dissipated by the time of the search. But the district court, in granting Klare’s motion for
summary judgement, did find that “the stop was prolonged by the officers’ reasonable suspicion
of drug activity due to the presence of Harris’s father’s tools and equipment in the car” and that
Harris was therefore lawfully seized. Based on this finding, we conclude that Harris’s general
argument below that she was illegally seized at the time of the search provided sufficient notice
to Klare that Harris challenged the existence of reasonable suspicion to believe that the Harris
family was involved in drug activity. We will therefore proceed to the district court’s holding
that Harris was legally seized at the time of the search.
2. Reasonable Suspicion
Because the purpose of the initial traffic stop was completed with the arrest of Harris’s
mother, the continued seizure of Harris was legal only if the officers had developed a reasonable
suspicion of some other criminal activity. Bailey, 302 F.3d at 657–58. “Reasonable suspicion
requires specific and articulable facts, which, taken together with rational inferences from those
facts, reasonably warrant the continued detention of a motorist after a traffic stop.” United States
v. Ellis, 497 F.3d 606, 612–13 (6th Cir. 2007) (quoting United States v. Smith, 263 F.3d 571, 588
(6th Cir. 2001)). Klare’s position is that the presence of tools, in conjunction with the apparent
obfuscation of the license plate and Harris’s mother having driven a vehicle without insurance
and with a suspended license, created a reasonable suspicion that the vehicle was involved with
the drug trade.
We have serious doubts as to whether the officers reasonably suspected the Harris family
of manufacturing or transporting contraband. Klare provides no reason to suppose that Harris’s
mother’s alleged traffic violations made it more likely that drug activity was afoot—if anything,
one would expect a drug-trafficking family to avoid fastidiously such violations for fear of
No. 17-6051 Harris v. Klare Page 7
discovery. See, e.g., United States v. Urrieta, 520 F.3d 569, 575 (6th Cir. 2008) (holding that the
defendant’s driving with an expired registration was “largely irrelevant to the determination [that
he] was a drug courier”).
Nor does Klare explain how the possession of worker’s tools, which is not itself
“inherently illegal or even suspicious,” could have provided the officers with a reason to suspect
drug activity. See United States v. Warfield, 727 F. App’x 182, 188–89 (6th Cir. 2018) (holding
that the possession of eight cartons of cigarettes was not suggestive of the possession of untaxed
cigarettes). The record contains no reason to believe that screwdrivers and wrenches—or any of
the other tools in the vehicle—are particularly indicative of drug manufacture or transportation.
Regardless, even if the officers reasonably suspected the Harris family of being engaged
in the drug trade, “[o]nce the drug-sniffing dog was brought to the scene and failed to alert
positively to the presence of narcotics in the vehicle, the officers’ suspicions . . . were dispelled.”
United States v. Davis, 430 F.3d 345, 356 (6th Cir. 2005). The failure of a drug dog to alert may
not always dispel probable cause, but it dispels mere reasonable suspicion absent some reason to
question the reliability of the drug dog. Id.; see also United States v. Perez, 440 F.3d 363, 373
(6th Cir. 2006) (holding that a drug dog’s failure to alert did not dispel reasonable suspicion
when officers knew that duffel bags they suspected of containing drugs had recently been placed
in a vehicle and that therefore any odor would not have had time to permeate the vehicle).
Because a reasonable jury could credit Harris’s deposition testimony that she was not
escorted to the restroom until after the drug dog had investigated the minivan, a reasonable jury
could conclude that the officers did not reasonably suspect drug activity at the time of her search
and that therefore she was unlawfully detained, rendering her consent to the search invalid.
3. Qualified Immunity
The existence of a jury question as to the legality of Harris’s seizure does not end the
inquiry, however, because Klare claims qualified immunity. “In determining whether qualified
immunity applies, [the court] employ[s] a two-part test, asking (1) whether, considering the
allegations in a light most favorable to the party injured, a constitutional right has been violated,
and (2) whether that right was clearly established.” Everson v. Leis, 556 F.3d 484, 494 (6th Cir.
No. 17-6051 Harris v. Klare Page 8
2009) (alterations in original) (quoting Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008)).
“When . . . a defendant raises qualified immunity as a defense . . . [t]he plaintiff has the burden
of showing that a right is clearly established . . . [and] the defendant carries the burden of
showing that the challenged act was objectively reasonable in light of the law existing at the
time.” Everson, 556 F.3d at 494 (citations omitted). In satisfying this burden, a defendant can
rely on a reasonable mistake of fact, for “[q]ualified immunity applies irrespective of whether the
official’s error was a mistake of law or a mistake of fact, or a mistake based on mixed questions
of law and fact.” Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015).
As Klare does not contest, the law is clear that once the original purpose of a traffic stop
is completed, the investigative detention of a passenger is unconstitutional absent continuing
reasonable suspicion of criminal activity. See Bailey, 302 F.3d at 657–58. Klare does argue,
however, that she was unaware that the drug dog search had been completed and disclosed no
drugs. Because officers are protected from liability for violations based on reasonable mistakes
of fact, when an officer, “acting in good faith and in reliance on the reports of other officers,
ha[s] a sufficient factual basis for believing that they are in compliance with the law, qualified
immunity is warranted, notwithstanding the fact that an action may be illegal when viewed under
the totality of the circumstances.” Humphrey v. Mabry, 482 F.3d 840, 847 (6th Cir. 2007).
Therefore, although a reasonable jury could find that Harris’s clearly established constitutional
rights were violated, Klare would still be protected by qualified immunity if no reasonable jury
could find that she was aware of the lack of reasonable suspicion at the time of the search.
The parties agree that Klare was summoned to the scene after the initial stop and after the
decision to summon the drug dog had been made by other officers, and Harris has presented no
evidence that Klare actively participated in the investigation of the minivan. The question here,
then, is whether a reasonable jury could infer that after arriving at the scene, Klare became aware
that there was, at most, only a reasonable suspicion of drug activity and that she also became
aware that the drug dog had failed to alert on the minivan prior to her search of Harris. Only if
no reasonable jury could find that Klare knew both of these facts prior to the search is she
protected by qualified immunity. Factual determinations of this sort are generally best left to the
jury, and so it is here.
No. 17-6051 Harris v. Klare Page 9
Klare’s uncontroverted deposition testimony was that when she arrived at the scene, she
spoke with other officers about “their investigation” and that, although she could not remember
specifically what the officers told her, they had said that “they had seen some things that they
believed could be consistent with the possibility of a meth lab or some other drug activity.”
Given that Klare was at least aware that the suspicion was based on having seen items in the
minivan, and that she was in the vicinity of the minivan and the investigating officers, a
reasonable jury could infer that she became aware of the basis of the suspicion, either by viewing
the minivan herself or through discussion with the investigating officers.
Nor can we say that a reasonable jury could not infer that Klare knew that the drug dog
had failed to alert to the presence of contraband. Although the record contains no direct
evidence regarding whether Klare observed the drug dog’s inspection of the vehicle or was
informed as to the results upon its conclusion, it does reveal that the relevant events all occurred
within a small area and that Klare was within that area. The alerting of a drug dog to contraband,
or the lack thereof, is an easily observable act in which Klare would have been quite interested,
and a reasonable jury could infer that, standing nearby as she was, Klare observed the drug dog’s
activity.
We conclude therefore that there is a sufficient factual basis on which a reasonable jury
could find that Klare is unprotected by qualified immunity. Although the facts are disputed,
Harris has sufficient proof from which a reasonable jury could find that at the time of the search,
Klare did, in fact, know that the drug-dog’s sniffing was completed, that the search of the
minivan had failed to indicate the presence of any drugs, and that there was no other lawful basis
to detain Harris.
B. The Search
Harris’s alternative basis for challenging the reasonableness of the search is that the
consent itself was not “unequivocal, specific and intelligently given, [and] uncontaminated by
any duress or coercion.” Beauchamp, 659 F.3d at 571. So we next address whether there is
sufficient evidence from which a reasonable jury could find that the search of Harris was
unlawful because her consent was not given voluntarily.
No. 17-6051 Harris v. Klare Page 10
1. The Voluntariness of the Search
Generally, a judicially issued warrant is required to conduct a search. Andrews v.
Hickman Cty., 700 F.3d 845, 854 (6th Cir. 2012). If an officer argues that she performed a
search pursuant to an exception to the warrant requirement, the burden is on her to establish that
such an exception applies. Id. Klare therefore has the burden to prove the exception here—that
is, valid consent to her search.
Whether Harris’s consent was voluntarily given is “a question of fact to be determined
from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227
(1973). That consent was “freely and voluntarily given . . . must be proven by ‘clear and
positive’ proof.” United States v. Kelly, 913 F.2d 261, 265 (6th Cir. 1990) (quoting United
States v. McCaleb, 552 F.2d 717, 721 (6th Cir. 1977)). Klare’s burden to show that Harris
consented freely and voluntarily “cannot be discharged by showing no more than acquiescence
to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S. 543, 548–49 (1968).
In determining whether Harris’s consent was free and voluntary, or mere acquiescence,
we look to several factors that fall into two general categories. First, we “examine the
characteristics” of the consenter, including “age, intelligence, and education,” as well as
“whether the individual understands the right to refuse to consent . . . and whether the individual
understands his or her constitutional rights.” Ivy, 165 F.3d at 402. Second, we examine the
characteristics “of the detention, including the length and nature of detention; the use of coercive
or punishing conduct by the police; and indications of more subtle forms of coercion that might
flaw [an individual’s] judgment.” Id. (alteration in original) (citations omitted).
Although not strictly a characteristic of either Harris or the detention, the nature of the
consent itself is material and must therefore also be considered. Consent to a search need not be
verbal—acts and gestures can suffice to show consent. United States v. Drayton, 536 U.S. 194,
199–200 (2002) (holding that defendant consented to a search by “lifting his hands about eight
inches from his legs” after being asked “Mind if I check you?”). And non-verbal actions are
legitimately considered by fact-finders when determining whether consent was given. United
No. 17-6051 Harris v. Klare Page 11
States v. Chambers, 646 F. App’x 445, 448 (6th Cir. 2016) (mem.) (holding that the defendant’s
placing “his hands on the troopers’ vehicle . . . could be viewed as further evidence of consent”).
a. Characteristics of Harris
Some of Harris’s characteristics are neutral, giving us no reason to believe that she was
particularly susceptible to police coercion or that she was particularly resistant. Her education,
which extended as far as a high-school diploma, but no further, is not outside the norm. See,
e.g., United States v. Jones, 846 F.2d 358, 360–61 (6th Cir. 1988) (considering the possession of
“no formal education” as a factor weighing against finding voluntary consent). Nor do we have
any reason to doubt Harris’s intelligence.
Harris’s age, on the other hand, counsels against finding voluntary consent. Although her
age at the time of the search is not dispositive, it is “beyond dispute that children will often feel
bound to submit to police.”5 J.D.B. v. North Carolina, 564 U.S. 261, 264 (2011). This is
particularly true when a minor like Harris, who had never even spoken with a police officer prior
to the events in question, is “a newcomer to the law.” United States v. Crowder, 62 F.3d 782,
788 (6th Cir. 1995) (considering the extent of a defendant’s prior exposure to law enforcement as
a factor in determining whether he had given consent to a search).
Most importantly, we have good reason to believe that Harris was unaware of her right to
refuse to be searched. United States v. Mendenhall, 446 U.S. 544, 558–59 (1980) (“Although the
Constitution does not require proof of knowledge of a right to refuse as the sine qua non of an
effective consent to a search, such knowledge [is] highly relevant to the determination” of
whether consent was voluntarily given. (citation omitted)). Neither Klare, nor any of the other
officers, explained this right to Harris, and Harris testified that she “didn’t know that [she] was
able to consent” to the search because Klare asserted that she may need to search Harris, without
asking whether she consented or telling her that she could refuse.
Klare argues that the officers’ having asked Harris’s father’s permission for her to be
escorted to the restroom imparted to Harris the knowledge that she could refuse the search. But
5Recognition of Harris’s youth undoubtedly explains why the officers asked her father, and not the girl
herself, if it was permissible for Klare to escort her to the restroom.
No. 17-6051 Harris v. Klare Page 12
this suggests only that her father could refuse to have her escorted to the restroom, not that Harris
herself could refuse to be searched. Nor does it suggest that, once her father had consented to
her being escorted, Harris personally retained any right to revoke that consent.
Klare also argues that because she said, “would you step over here,” Harris knew that she
had the right to refuse to be searched. In the context of their walking to the restroom, Klare
asserts, we ought to interpret her saying “would you step over here” as a request for Harris to
facilitate a search of her person. That it was a request suggests that it could be refused, meaning
that Harris would know she could refuse the search.
There are two reasons why this argument is unconvincing. First, even if a reasonable
jury could conclude that Harris knew that “would you step over here” was a precursor to a
search, it could also find the opposite. When Klare said “would you step over here,” Harris had
no reason to believe that it was related to an impending search other than the fact that she had
earlier been told that officers may have to search her; as she later testified, she “didn’t even know
that there was going [to] be a search when I walked over there.” If Harris was unaware that the
statement “would you step over here” was uttered for the purpose of facilitating a search, that
utterance could hardly impart to her the knowledge that she had the right to refuse consent to that
search.
Whether or not Harris knew that Klare made the statement for the purposes of a search, a
reasonable jury could find that the statement was a command, not a request. See United States v.
Cowan 704 F. App’x 519, 527–28 (6th Cir. 2017) (Moore, J., dissenting) (“The difference
between asking in the first instance whether an individual consents to a search and asking
whether an individual can take an action that will facilitate a search is the difference between a
request that can be freely declined and a command that cannot.”). It would have been reasonable
for Harris to interpret the phrase “would you step over here” as a command, particularly given
that it was being uttered by an officer whose control she was under. If she interpreted the
statement as a command, it cannot be used as evidence that she knew she had a right to refuse
consent to the impending search.
No. 17-6051 Harris v. Klare Page 13
b. Characteristics of the detention
The characteristics of the detention also weigh against finding that Harris consented to
Klare’s search. That there were six police vehicles, and their attendant officers, at the scene,
contributed to “establish[ing] a custodial atmosphere and coercive environment.”6 Jones,
846 F.2d at 361 (considering the presence of three police vehicles as indicative of
involuntariness). Although the fact that the officers were armed does not, by itself, make it more
likely that Harris’s consent was involuntary, the fact that Klare repeatedly touched her weapon,
which was semi-unholstered, gave Harris some cause to believe she could not refuse to be
searched. Drayton, 536 U.S. at 205 (“The presence of a holstered firearm thus is unlikely to
contribute to the coerciveness of the encounter absent active brandishing of the weapon.”).
Yet Harris was held for over an hour before the search, and “the length of detention
before consent is a significant factor in any voluntariness determination.” Ivy, 165 F.3d at 402(considering the passage of approximately one-and-one-half hours between the seizure and the
consent as indicative of involuntariness). The length of the detention is particularly significant in
light of the implicitly conditional nature of Klare’s offer to escort Harris to the restroom. As
Klare’s deposition testimony shows, had Harris refused her consent to Klare’s search, she would
not have been allowed to go to the restroom. As anyone who has found themselves waiting in
line for the cinema restroom at the conclusion of a movie can attest, forcing someone who has
been in custody for over an hour to choose between consenting to a search and going to the
restroom is one way to “apply pressure” and “intensify[] the coercive tenor of the request for
consent.” Id. at 403.
Finally, before searching her, Klare used her own hand to secure Harris’s hands behind
her back. Although it is true that “just because a defendant is handcuffed when he or she gives
consent does not make such consent invalid,” United States v. Lee, 793 F.3d 680, 686 (6th Cir.
2015), it is equally true that a “defenseless [girl] is not in a position to say no to a police officer
whose hands are still on or just removed from [her] body while another officer is standing just a
few feet away.” Beauchamp, 659 F.3d at 572.
6Harris alleges that while waiting for the drug dog, her father asked why there were six police cruisers and
numerous officers at the scene and was told that “[w]e [are] bored, it’s Thursday, we [have] nothing to do.”
No. 17-6051 Harris v. Klare Page 14
c. Weight of the factors
A reasonable jury, considering the nature of Harris, her consent, and her detention, could
find that Harris’s consent was not voluntarily given. The record would support a jury in finding
that she did not verbally consent to be searched and that her consent, such as it was, consisted
solely in walking towards Klare, as instructed, and her lack of resistance to the actual search.
When a minor, untutored in her Fourth Amendment rights, seized for over an hour and in the
presence of numerous armed police officers, with her arms secured behind her back and facing
the choice of consenting to a search or being kept from the restroom, fails to resist that officer’s
search of her person, a reasonable jury could find that this non-verbal consent was not
voluntarily given.
2. Qualified Immunity
That a reasonable jury could find that Harris’s consent was involuntary does not entail, of
course, that a reasonable jury could find that no reasonable officer in Klare’s position could be
mistaken about that fact. Peffer v. Stephens, 880 F.3d 256, 263 (6th Cir. 2018) (“Qualified
immunity gives government officials breathing room to make reasonable but mistaken
judgments, and protects all but the plainly incompetent or those who knowingly violate the law.”
(quoting Messerschmidt v. Millender, 565 U.S. 535, 546 (2012))). As noted, Harris was
seventeen, but a reasonable officer in Klare’s position may have been unaware that she was a
minor. And the record is unclear as to how long Klare had been at the scene—she may have
been unaware of precisely how long Harris had been seized. Excising those facts about which
Klare could have reasonably been mistaken, we must determine whether a reasonable jury could
find that “any reasonable [officer] in the defendant’s shoes would have understood that [s]he was
violating” Harris’s right to be free of unreasonable searches. Plumhoff v. Rickard, 134 S. Ct.
2012, 2023 (2014).
To answer this question we must determine whether “the law at the time of the conduct”
provided Klare with “fair notice that her conduct was unlawful.” Brosseau v Haugen, 543 U.S.
194, 198 (2004) (per curiam). Because “it is sometimes difficult for an officer to determine how
the relevant legal doctrine . . . will apply to the factual situation the officer confronts” in cases
No. 17-6051 Harris v. Klare Page 15
implicating the Fourth Amendment, Klare can only be denied qualified immunity if there is
controlling precedent involving materially similar facts in which courts have found consent to be
involuntarily given. Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting Mullenix v. Luna,
136 S. Ct. 305, 308 (2015) (per curiam)).
In United States v. Beauchamp, an officer parked his patrol car near a suspect, exited his
vehicle, and instructed the suspect to stop walking, which he did. 659 F.3d at 564. The officer
then instructed the suspect to walk towards the officer, an instruction that was also followed. Id.Once the suspect approached, the officer noticed that he was “very nervous, visibly shaking,
wide-eyed, and scared.” Id. (quotation marks omitted). Another officer arrived on the scene and
the original officer, while frisking the suspect, asked for consent to perform a full search, which
the suspect granted. Id. at 565. Although the officers on the scene did not know this, the suspect
had interacted with the police earlier in the day, having “hurriedly walked away” from officers
“without making eye contact.” Id. at 564. Noting the suspect’s earlier interaction with the
police, and that he had never been informed of his right to refuse to consent to the search, this
court found that the suspect’s consent was not voluntarily given. Id. at 572. Particularly
significant was that the consent was given to an officer who had already begun to frisk the
suspect while another officer witnessed the encounter. Id.There are important similarities between the facts in Beauchamp and here. In both cases,
the officer’s hands were on the suspect before consent was given to the search. Also, other
police officers were on the scene. And like the suspect in Beauchamp, Harris had experienced
recent interaction with law enforcement: Harris had spent the past hour observing and interacting
with the police—watching her mother’s arrest and her family’s detention. And Harris, like the
suspect in Beauchamp, was not told by the police that she had the right to refuse the search.
Of course, the facts between the two cases do differ. In Beauchamp, the suspect was
visibly distraught, although there is no evidence that Harris was outwardly anything but calm
during the encounter. Although an individual’s outward demeanor is certainly a factor to be
weighed when determining whether that individual has consented to a search, it has never been
held to be a necessary factor.
No. 17-6051 Harris v. Klare Page 16
Other than that distinction, the factual differences between this case and Beauchamp
make it more likely, not less, that Harris’s consent was involuntary. Most importantly, the
suspect in Beauchamp verbally consented, whereas Harris’s consent consisted merely in walking
to a location to which she had been directed and not resisting while she was searched. Whereas
the suspect in Beauchamp was being frisked when he gave consent, Harris was being restrained.
Whereas the suspect in Beauchamp had been seized briefly, Harris had been seized for over an
hour. And whereas the suspect in Beauchamp was in the presence of only two officers, six squad
cars were on the scene when Harris was searched.
That the facts surrounding Klare’s search of Harris do not precisely match those in
Beauchamp does not prevent our holding that a reasonable jury could find that Klare is
unprotected by qualified immunity. Police officers are sometimes “forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving,” and we must
adjudge those decisions “from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Kisela, 138 S. Ct. at 1152 (internal quotation marks
omitted). But the situation in which Harris and Klare found themselves was neither tense, nor
uncertain, nor rapidly evolving, and we ought not require a jury to be overly deferential to the
decisions made by Klare that day. Because a reasonable jury could credit Harris’s account of
events, they could find that Klare unreasonably searched her without her voluntary consent and
that Klare is not entitled to qualified immunity.
III
For the foregoing reasons, we REVERSE.