the final case on the calendar for argument this morning is cloud versus mikkel retain twelve seventy two and direct statement of a complaint and one least possibility pleading standard but this complaint sets out a minor constitutional violation essentially holding a mobile a motorist for an extra fifteen or twenty minutes for the purpose of bringing drug sniffing dogs from down the road from the point of view of the detained motorist the case is simple you will you're out of rainbow gathering a place where there has been media reports and ongoing complaints over decades and litigation over traffic stops the officer stops you  search you decline the officer says he will call for a canine unit but you look around and there's no canine unit visible anywhere so you wait and while you're waiting another officer says we're waiting for the canine unit and you think well i knew that and while you're waiting you're upset because not too long ago you read in this paper that the supreme court and the rock case said such the tensions were unconstitutional that's pretty much it this beast mccloud let me ask you the district court said that during oral argument her court you said that you don't contend that the traffic stop was unreasonably prolonged interation only that it was prolonged for an improper purpose but you've just said that you believe it was prolonged for fifteen twenty minutes  court misconstrued what they said and made it into a concession when it was really a clarification and in at the hearing transcript page twenty seven nineteen to page twenty two i said and just to judge and quote the transcript and just to clarify again i am not stating a claim of overall unreasonably long stop only that the stop was extended for improper purpose let me ask you about that yes mr mccloy by understand what happened here the initial officer who stopped you stop you for a while and then he went off and it's two other officers who him i understand i just want to make sure i understood correctly that the officer who originally stopped you officer if so is is is now off the scene that's correct all right now eventually he comes back on the scene and he has been given this the summons or you could have been so they could have impounded your car because you're not supposed to drive a car without a valid inspection sticker is that your understanding here i think it's a theoretical possibility there was no discussion about the impoundment well in your presence now you don't know what was going on in the it's about fifteen minutes that the officer is away from you right agreed so to sustain your case you're going to have to show that he had made the decision and was ready to issue the summons well before that fifteen minutes had elapsed is that right because if it were if he was on the phone with his sergeant should i impound the car should i issue a summons what should i do that wouldn't have been improper under rodrigues correct that's correct speculation no i understand you don't know what went on during that time but in that sense we're not dealing with a delay of say four hours where there might be more recent think that i may have picked something extreme where you would think that they had prolonged this one it's possible they didn't prolong it because they weren't deciding what to do in your circumstance that's a possibility or least the time is  and actually impounding the car would have been impractical because of course it would have required a fire truck to come up a dirt road six miles and mr mr i don't want to get into what they go but you understand they didn't ride dri the supreme court's decision there were facts that allowed for the conclusion that the stock had ended yes and the the what happened was that the officer concluded the questioning about the expired expection sticker and then switch gears and start questioning about illegal drugs and so after that point there was never again a question about the car the safety of the car the inspection sticker and if this is my drugs and seeking your consent to search your vehicle while mr stokes was at a distance said that they were waiting for the canine that's correct he did and that might suggest that that there is some basis to believe that it wasn't to further complete the expired sticker whatever's necessary to follow up on that thought it might be that it could turn out either way it might be are you referring to well both both the district court and the defendants have have brought out the fact that i can see that that the overall length of the stop was not reasonable it's not that that's an interpretation the fact with that with i was getting to in the in the hearing was that my claim was not a general claim of an unreasonably long stop  briefly it's really whether the stop had ended you heard the questions i asked mr macleod why isn't it appropriate to allow discovery at least on the map point right because  discovery is only appropriate and overcoming qualified immunity is only appropriate if the complaint satisfies the standards of iqbal and in this case it does not but we can't express mr macleod to know whether in the fifteen minutes that the defendant was way he was either finding out how to handle this traffic stop or just waiting for the dog with thought until until that's resolved how do we know whether or not there's a plausible claim here and that's that's not information within mr macleod's possession but with all due respect that the fact that officer i'm sorry that mr macleod doesn't know what was happening does not in itself does not is not a way of overcoming the possibility that he has some other officers who come and say to him that the reason he can't leave yet is that we're waiting for the dog not we'll wait you've got it you're going to get issued a summons you have to wait for it that's not what they t right so let me jump straight to that statement so there are various issues with that allegation but most importantly let's assume that the allegation is true and what the officer was staying saying is that  we will not and this traffic stop unless you or until the canine you know arrives and conducts a dog sniff so i think that's a fair way of construing the allegation that does not say that while they are waiting for the k nine unit to arrive officer stokes is not also at the same time doing what he needs to do to complete the stop it says it simply says nothing you know officer stokes can be waiting for the canine unit and white why doing the long as officer stokes was acting lawfully during the wait then there's no constitutional violation and he's only letting the stop was unnecessarily and recently prolonged to pursue a drug investigation that was unrelated to the expiration of his sticker and judge the district court in you know seems to have relied on the sense that there was a concession that during oral argument that there was no unreasonable  clarified that that isn't what he intended to say and that he was misunderstood i'm still having difficulty understanding why he hasn't satisfied twelve he said right so just to be clear i mean so we entirely understand mr macleod to be making a claim that the time that it took to that the stop was on was extended beyond the time it would otherwise have taken and he does make a fair allegation to that effect and his complaint but as we know alternatives were much more likely than the plaintiffs allegations here i'm not sure we're in that situation we just don't know i mean i posit it to mr macleod that fifteen minutes might be a decision whether  impound this car or to issue him a summons but if you know the discovery shows that the officer and i'm just speculating went into car called a canine unit and it was only when the canines came back negative late that then they started to write the summons that would be very different scenario and i i'm i'm i'm perplexed as to why you don't think that should at least be developed well it's it's certainly possible that officer stokes was simply sitting in his car and twiddling his thumbs but in which an case in which case you know we would concede that that is a constitutional violation but the question is is that it has is that merely possible because if it's merely possible that twamley mr macleod has to know i don't think it's plausible and the reason it's not plausible is that we know from ball where there where there's an allegation a factual allegation and it's consistent with lawful conduct and that is the more obvious alternative explanation then that because i think the presumption is that a police officer when conducting a traffic stop is doing what he is supposed to be doing so the supposed to know every supreme court decision that's ever been decided which say gee i'm really concerned about this and i'm really concerned about drugs and i can't i don't want to go in there and he makes a judgment but that's i mean that's a plausible more that's  his colleagues continued to question mr macleod about whether he had drugs or whether he had consent to a search and the context of the rainbow valley gathering also suggests that they may have had legitimate concerns potentially about drugs coming into the site or leaving the site so what why that doesn't undermine any of that give some basis potentially for presuming that  there might have been some other explanation for the delay first i would just point out that the officer subjective motivation for conducting the stop is not relevant to the constitutional analysis under the supreme court's decision and brand  but more importantly would be to the extent that he prolonged it right yonder the purpose of the stuff my problem here is is that you've got the plaintiff alleging based on his direct knowledge the two officers told him when he asked if he could believe that they were waiting for k nine dog and it's hard for me to say that it's now implausible to think that that's the reason that the stop continue after discovery you may very well make a compelling case for qualified immunity the question is whether you can make it on this record where we have to we have to construe this plate the pleadings in the light most favorable to mr macleod that's entirely correct but i just want to remind the court that again this rises and the qualified immunity proscar the supreme court has said that qualified immunity should be addressed at the earliest possible stage absently but on the accepting the facts as alleged by the plaintiffs but you have to show the inadequate and i don't know how you can do that when he pleads the two officers tell him the reason he can't leave is because they're waiting for a night well it may be that they said that he can't leave until the canine unit completed the dog sniff but in fact if in fact officer stokes was just doing what he was supposed to be ultimately i think no record on that right i don't think we need a record ultimately what the what this case comes down to is has mr becloud adequately pleaded factual allegations in this complaint that make it plausible that what officer stokes was doing during the time that they were waiting for the dog sniff was simply sitting in his car and doing nothing and being dilatory and i don't think that he doesn't have to allege that create the inference that officer stokes was doing nothing or being delatour he could have been busy with any number of things but what he has alleged is that he was focused and that the drug sniffing and that the detention was prolonged as a result if officer stokes was sitting in his car and he was you know just adjusted you know asking his sergeant about whether to impound the car or he was just he's your client you want to give us a proper no no and i again i don't think the court needs to know the question is whether there was a plausible and france that there that this what occurred was the only set of events that would create a violation thank you thank you very much we have the honor as each of you have said there is there is no way for me myself as a motorist or any motorist to know what an officer is doing when he walks away to a squad car and he's on his radio who is talking continue and your honor this case has been going on now for two and a half years and the defendants not private provided any actual facts in this whole time so the entire case so far has simply been attacking the theory of the complaint and the and raising all kinds of hypothetical reasons why it could not be so thank you thank you very