[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-13566

Non-Argument Calendar

____________________

JOSEPH SMITH, 

Plaintiff-Appellee,

versus

MARK SOHN,

individually, 

SHAUN JAMES,

individually, 

ANDREW BERBEN,

individually, 

CORY HENRY,

individually, 

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2 Opinion of the Court 23-13566

Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:22-cv-80590-RS

____________________

Before JORDAN, GRANT, and LAGOA, Circuit Judges.

PER CURIAM:

While conducting a traffic stop, officers employed a dog sniff 

and subsequently searched Joseph Smith’s car. Smith brought suit 

against the officers, alleging illegal search and seizure along with 

several other claims. The district court denied qualified immunity 

for the officers as to the illegal search and seizure claims. Because 

we agree that there is a genuine dispute of material fact about 

whether probable cause justified the search, we affirm. 

I.

At 12:50 pm, Defendants Officers Shaun James and Andrew 

Berben stopped a car for speeding. The officers approached the 

vehicle and noticed that the car had illegally tinted windows.1 The 

officers asked the driver for his driver’s license, proof of insurance, 

1 Florida law limits the extent to which vehicle windows may be tinted. Fla. 

Stat. § 316.2953.

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23-13566 Opinion of the Court 3

and registration, all of which he provided. The officers noticed that 

the vehicle was registered to Joseph Smith, but that the driver’s 

license was for Joseph Matthew Avrus. When officers questioned 

the driver about this discrepancy, he provided a second driver’s 

license—this time with the name “Joseph Smith.” The driver, 

Smith, explained that he had recently legally changed his name and 

was told to carry both licenses with him. 

This interaction understandably raised the officers’

suspicions, and they asked Smith if he had been smoking marijuana 

or otherwise had any drugs, weapons, or bombs. Smith initially 

responded in the negative, but then said, “I am not going to say 

anything to incriminate myself.” The officers responded by asking

to search Smith’s car, but he declined. According to the officers, 

Smith acted nervous during this entire encounter. At 12:58 pm, the 

officers called for two additional officers, Cory Henry and Mark 

Sohn, as backup. At 1:02 pm, Officer James began writing the first 

of two traffic citations, one for speeding and the other for illegal 

tinting. 

Backup arrived by 1:06 pm. Officer Mark Sohn asked Smith 

if he would consent to a search of his car, and Smith again 

declined.2 Officer Sohn then informed Smith that he would be 

conducting a dog sniff of the vehicle’s exterior. Smith was 

2 For the remaining facts, we refer to Officer Sohn’s dash camera footage of 

the scene. 

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instructed to step out of the car. The officers conducted a pat down 

search, but found nothing. 

The dog sniff lasted about two minutes, from 1:09 pm to 

1:11 pm. While the dog never gave a clear alert, Officer Sohn 

commented that it seemed interested in Smith’s trunk. Officer 

Sohn again requested consent to search Smith’s car, to which Smith 

declined. 

The officers proceeded to search Smith’s entire car. At 

about 1:16, pm, while the search was still ongoing, Officer James 

finished writing Smith’s tickets. The search of the trunk did not 

reveal any contraband. But at 1:27 pm, after about 15 minutes of 

searching the car, officers found a bag containing controlled 

substances under the floorboards of the driver’s seat. Smith was 

arrested and later charged with several narcotics offenses. 

Smith brought suit against all four officers, alleging illegal 

search and seizure, false arrest, malicious prosecution, and 

violations of due process. The officers moved to dismiss these 

claims, which the district court granted in part with respect to the 

due process and state law malicious prosecution claims. The 

officers then moved for summary judgment on the remaining 

claims based on qualified immunity. The district court granted that 

motion as to the false arrest and federal malicious prosecution 

claims, but denied it as to the illegal search and seizure claims 

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23-13566 Opinion of the Court 5

against each officer. The officers appeal the denial of qualified 

immunity for the illegal search and seizure claims.3

II.

“We review de novo the district court’s disposition of a 

summary judgment motion based on qualified immunity, 

resolving all issues of material fact in favor of Plaintiffs and then 

answering the legal question of whether Defendants are entitled to 

qualified immunity under that version of the facts.” Case v. Eslinger, 

555 F.3d 1317, 1324–25 (11th Cir. 2009) (emphasis and quotation 

omitted). When “video evidence is conclusive, witness testimony 

cannot be used to introduce a factual dispute.” Charles v. Johnson, 

18 F.4th 686, 692 n.1 (11th Cir. 2021).

III.

“Qualified immunity shields officials from civil liability so 

long as their conduct does not violate clearly established statutory 

or constitutional rights of which a reasonable person would have 

known.” Crocker v. Beatty, 995 F.3d 1232, 1239 (11th Cir. 2021)

(quotation omitted). 

On appeal, the officers argue that the district court erred in 

two ways. First, they say that the court wrongly concluded that 

they had unconstitutionally prolonged the traffic stop. Second, they 

dispute that they lacked probable cause to search Smith’s vehicle. 

3 “A trial court’s denial of qualified immunity at the summary judgment stage 

is immediately appealable.” Haney v. City of Cumming, 69 F.3d 1098, 1101 (11th 

Cir. 1995).

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We agree with the officers’ first argument, but disagree as to the 

second. 

A.

“A seizure for a traffic violation justifies a police 

investigation of that violation.” Rodriguez v. United States, 575 U.S. 

348, 354 (2015). Traffic stops “may last no longer than is necessary” 

to address the infraction and any related safety concerns. Id.

(quotation omitted). An officer may undertake activities unrelated 

to the traffic stop’s mission, such as a dog sniff, but only if it does 

not prolong the stop. Baxter v. Roberts, 54 F.4th 1241, 1259 (11th 

Cir. 2022). So long as a dog sniff occurs during a lawful traffic stop

while officers are still “conducting routine records checks and 

preparing the traffic citations,” it does not prolong the stop. United 

States v. Holt, 777 F.3d 1234, 1257 (11th Cir. 2015).

We disagree with the district court’s conclusion that the 

officers in this case unconstitutionally prolonged the stop. The 

district court’s reasoning was based on Officer James’s failure to 

deliver the citations to Smith until his arrest—nearly thirty-seven 

minutes after he was initially stopped. 

That analysis, however, shifts the focus from the proper 

inquiry: whether the dog sniff began during the routine traffic stop 

procedures. Here, Officer James began writing Smith’s two 

citations at 1:02 pm, and finished writing at 1:16 pm. The dog sniff 

occurred during that time, beginning at 1:09 pm and ending around 

1:11 pm, when Officer Sohn claimed that the dog had detected 

odor from the trunk. Because the dog sniff occurred while Officer 

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James was still writing Smith’s citations, it did not 

unconstitutionally prolong the stop. 

B.

Under the “automobile exception,” officers may conduct a 

warrantless search of a vehicle if they have probable cause to 

believe that the search will produce evidence of a crime. California 

v. Acevedo, 500 U.S. 565, 566, 569 (1991). “[P]robable cause arises 

when a drug-trained canine alerts.” See United States v. Tamari, 454 

F.3d 1259, 1265 (11th Cir. 2006) (quotation omitted). We have

“rejected a stricter rule requiring a final response, indication, or 

alert for a drug dog to be sufficiently reliable.” United States v. 

Braddy, 11 F.4th 1298, 1314 (11th Cir. 2021). The inquiry must 

instead focus on “whether all the facts surrounding a dog’s alert, 

viewed through the lens of common sense, would make a 

reasonably prudent person think that a search would reveal 

contraband or evidence of a crime.” Id. at 1312.

We are skeptical that the officers had probable cause to 

search any part of Smith’s car. To alert, the drug detection dog is 

supposed to “sit and stare at the source of odor.” But the dog never 

did that. And although Officer Sohn states that subtle changes in 

the dog’s behavior suggested an alert, the video does not reflect 

those changes.4 Because there is a genuine dispute of material fact 

4 The officers also provided a declaration by a canine expert who stated that 

the dog’s “alert was sufficient indication that narcotics were present in the 

subject vehicle.” Missing from the record, however, is a report or curriculum 

vitae for the expert. The district court thus did not consider this evidence, and 

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as to whether the dog alerted, the officers are not entitled to 

qualified immunity.5

* * *

Although the officers did not unconstitutionally prolong the 

traffic stop, there is a genuine dispute of material fact as to whether 

they had probable cause to search Smith’s car. We therefore affirm 

the district court’s summary judgment order denying qualified 

immunity for the illegal search and seizure claims. 

AFFIRMED.

neither do we. See Corwin v. Walt Disney Co., 475 F.3d 1239, 1252 (11th Cir. 

2007). 

5 Even if the dog provided a weak indication of odor from the trunk, that does 

not necessarily mean that the officers had probable cause to search the entire 

vehicle. See Acevedo, 500 U.S. at 580. 

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