UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ TL HARVEY, Plaintiff - Appellant,

v. JAKE BUTCHER, Utah Highway Patrol Officer; THOMAS SIMPSON, Utah Highway Patrol Officer; STATE OF UTAH DEPARTMENT OF PUBLIC SAFETY HIGHWAY PATROL; KEITH SQUIRES, Commissioner Utah Department of Public Safety Highway Patrol in his official capacity, Defendants - Appellees. No. 21-4051 (D.C. No. 1:18- CV-00008-JNP) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , KELLY , and CARSON , Circuit Judges.

________________ _________________ In this civil-rights case involving su ccessive traffic stops, TL Harvey appeals pro se from a district court order that granted the defendants ’ motion for summary judgment on the basis of qualified immunity . Exercising jurisdiction under 28 U.S.C.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 14, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-4051 Document: 010110710769 Date Filed: 07/14/2022 Page: 12 § 1291, we reverse and remand for further pr oceedings so that the district court can address the constitutionality of both st ops under the Fourth Amendment.
B ACKGROUND 1 On January 11, 2016, Mr. Harvey was driving his Volkswagen Passat through Utah on his way to Wyoming. At 2:24 p.m., Utah Highway Patrol Trooper Thomas Simpson initiated a traffic stop of the car as it passed him on the interstate. The car had Arizona license plates and tinted windows . Trooper Simpson thought that the tint on the car’s windows violated Utah law. He was unable to see Mr. Harvey, who is African-American. After stopping the car, Trooper Simpson approached the passenger-side door and explained the reason for the stop to Mr. Harv ey: “[Y]our windows are way too dark for the car.” R., Vol. I at 369-70. Mr. Harv ey responded that the car was licensed in Arizona. Trooper Simpson explained that the tint likely also violated Arizona law, and he asked Mr. Harvey if he lived in Arizona or Utah. Mr. Harvey indicated he lived in Minnesota. Trooper Simpson used his tint meter to measure the amount of light passing through the car’s front side windows. Th e meter reported 27.5% light transmittance, a violation of Utah law. See Utah Code § 41-6a-1635(1 )(b) (2015) (prohibiting the

1 In setting out the background of this qualified immunity case, we “view the evidence, and all inferences arising from that evidence, in the light most favorable to [Mr. Harvey],” Emmett v. Armstrong , 973 F.3d 1127, 1130 (1 0th Cir. 2020), meaning that we adopt his version of the facts so long as it “find[s] support in the record,” Redmond v. Crowther , 882 F.3d 927, 935 (10th Cir. 2018) (internal quotation marks omitted). Appellate Case: 21-4051 Document: 010110710769 Date Filed: 07/14/2022 Page: 23 operation of a motor vehicle with a front side window that allows less than 43% light transmittance). Trooper Simpson asked Mr. Harvey where he was headed and where he had come from. Mr. Harvey hesitated in responding and sa id that he was “on a trip,” but he refused to provide any details. R., Vol. I at 401. Trooper Simpson returned to his car to run checks on Mr. Harvey’s license and registration. Because his registration show ed an Illinois address, Trooper Simpson returned to Mr. Harvey’s car and attempted to confirm Mr. Harvey’s home address, given that his car had Arizona plates and he had a Minnesota driver’s license. Mr. Harvey’s explanation is not apparent in the record, bu t he evidently mentioned that he had another car registered in Utah. Trooper Simpson retu rned to his patrol ca r, completed the checks, and returned Mr. Harvey’s license and registration. Trooper Simpson gave Mr. Harvey a wa rning citation for the excessive tint and told him he was free to leave. The traffi c stop concluded at 2:40 p.m., about 18 minutes after it began. After Mr. Harvey drove away, Trooper Simpson contacted fellow Trooper Jake Butcher, who was on duty further east on the inte rstate with his narcotics-detection dog, Bear. They conversed over an internal messaging system: [Trooper Simpson]: got a car for you to go stop [Trooper Butcher] Joined The Chat [Trooper Simpson]: I just let him go he[’]s proba[bl]y at about milepost 100-101 on I-84 east [Trooper Butcher]: what you got? Appellate Case: 21-4051 Document: 010110710769 Date Filed: 07/14/2022 Page: 34 [Trooper Simpson]: red. Volks[wa gon] with [Arizona] plates [Trooper Simpson]: it[’]s a lease car so it[’]s to the guy but he[’]s from [M]inn[e]sota [Trooper Simpson]: keep s do[d]ging my questions of where[] he[’]s coming from. [Trooper Butcher]: ok i[’]ll hurry and head that way [Trooper Simpson]: window tint measured 27% [Trooper Simpson]: so easy stop but if you can run your dog you might get something [Trooper Butcher]: ok thanks. I[’]ll watch for it [Trooper Simpson]: AZ limit is 33% and MN limit is 50% [Trooper Simpson]: either way he[’]s under [Trooper Butcher]: ok sounds good [Trooper Simpson]: FYI he[’]s been stop ped prior in Utah for window tint accordi[ng] to RMS [Records Management System] [Trooper Simpson]: can[’]t even see th e driver through [t]he window tint Id. at 412 (italics and bold-face font omitted). 2 Not long after leaving Trooper Simps on, Mr. Harvey drove by Trooper Butcher, who recognized the car and the “very dark” tinted windows. Id. at 416. Like Trooper Simpson, he could not see the driver a nd believed the tint violated Utah law. At roughly 3:07 p.m., Trooper Butcher stopped Mr. Harvey’s vehicle and approached the passenger-side door. He to ld Mr. Harvey that he initiated the stop

2 The original print-out of the troopers’ conversation was sealed by the district court. Accordingly, we quote the Troopers’ conversati on from Exhibit E to their summary judgment motion, which omits the sensitive information and was not sealed. We note, however, that the exhib it mistakenly attributes the comment, “AZ limit is 33% and MN limit is 50%,” to Tr ooper Butcher. The comment was in fact made by Trooper Simpson. Appellate Case: 21-4051 Document: 010110710769 Date Filed: 07/14/2022 Page: 45 because the windows app eared excessively tinted. Mr. Harv ey explained that he had just been stopped for a tint violation, and he ga ve his license and registration to Trooper Butcher. Trooper Butcher asked Mr. Harvey “simple questions regarding the details of his trip, [but] he was unwilling to” answer. Id. at 460. Trooper Butcher returned to his patrol car and contacted dispatch for a re cords check on Mr. Ha rvey’s license and registration. While waiting on dispatch to gather the information, Tr ooper Butcher walked Bear around the outside of Mr. Harvey’s car. Wh en Bear reached the back of the car, he “stopp[ed] and point[ed] at th e left taillight,” signaling the presence of narcotics. Id. at 418. Trooper Butcher notified Mr. Harvey of Bear’s alert and told him to exit the car while he searched it. Mr. Harvey complied and asked that Trooper Butcher’s supervisor be present during the search. Trooper Bu tcher radioed dispatch, and a supervisor, Sergeant Bryce Rowser, headed to the scene at 3:18 p.m. Sergeant Rowser arrived around 3:40 p.m. Trooper Butcher then searched the car but found no narcotics. He used Sergeant Rowser’s tint mete r to test the windows’ tint, because his own meter wasn’t functioning, an d he found light transmittance similar to what Trooper Simpson had fou nd. Trooper Butcher issued Mr. Harvey another warning citation and returned his license and registra tion. The encounter ended at 4:11 p.m.— roughly sixty-five minutes after Trooper Butcher pulled him over. In January 2018, Mr. Harvey filed this ac tion pro se in federal district court under 42 U.S.C. § 1983 and § 1985(3), co mplaining of the traffic stops and search of his car. In an amended complaint, he claimed that Tr oopers Simpson and Bu tcher conspired with Appellate Case: 21-4051 Document: 010110710769 Date Filed: 07/14/2022 Page: 56 each other and violated the Fourth Amen dment’s prohibition against unreasonable searches and seizures, and the Fourteenth Amendment’s guarantees of equal protection and due process. He furt her claimed that Trooper Butcher violated the Eighth Amendment’s prohibition against cruel and unusual punishment and the Fourteenth Amendment’s guarantee of due process by having him stand outside in the cold pending the search of his car. In addition to hi s federal claims against Trooper Butcher, Mr. Harvey referenced the Utah Constitutio n, but he made no ad ditional allegations. 3 Troopers Simpson and Butcher moved for summary judgment, asserting qualified immunity against Mr. Harvey’s federal claims and arguing there was no violation of the Utah Constitution. Mr. Harvey filed a res ponse. A magistrate judge considered the matter and recommended that the Troopers’ mo tion be granted in full. The magistrate judge’s report and recommendation (R&R) warned Mr. Harvey that he had fourteen days to file an objection, and that his “[f]ailure to do so may constitute waiver of objections upon subsequent review.” R., Vol. I at 938. On the last day of the fourteen-day peri od, February 19, 2021, Mr. Harvey filed an “Opposition” to the R&R. Id. at 939. He argued that Trooper Simpson unreasonably extended the duration of the traffic stop by (1 ) asking “questions unrelated to the mission

3 Mr. Harvey also sued Keith Squires, the former Commissioner of the Utah Department of Public Safe ty, for failing to supervis e and discipline Troopers Simpson and Butcher. On appeal, Mr. Harv ey does not challenge the district court’s dismissal of that claim, a nd we do not consider it. See Tran v. Trs. of State Colls. in Colo. , 355 F.3d 1263, 1266 (10th Ci r. 2004) (“Issues not ra ised in the opening brief are deemed abandoned or waived.” (internal quotation marks omitted)). Appellate Case: 21-4051 Document: 010110710769 Date Filed: 07/14/2022 Page: 67 at hand,” and (2) “call[ing] ahead to [Troop er] Butcher and instructing [him] to stop Plaintiff and use [Bear].” Id. at 939, 942. He also stated that “a jury should consider” Trooper Butcher’s communications with Troop er Simpson and Trooper Butcher’s use of
Bear. Id. at 945. Further, he maintained that Trooper Butcher “show[ed] a consciousness of guilt” by erasing his da sh-cam video of the traffi c stop sixty days later. Id. at 944. Mr. Harvey then began supplementing his objections to the R&R. On February 22, he filed an affidavit, alleging that the defendants had resisted his discovery efforts by “asserting non-existing privileges and other legal [] goo-goo.” Id. at 949. He also filed a second Opposition, arguing that Tr ooper Butcher’s traffic stop and use of Bear violated the Fourth Amendment. And on February 24, he filed a third Opposition, asserting that Troopers Simpson and Butcher were not entitled to qualified immunity. 4 The district court adopte d the R&R and granted the Troopers’ summary judgment motion. The court explained that only Mr. Harvey’s first Opposition, filed on February 19, 2021, was timely. Specifi cally, the court noted the R&R was filed on February 2, and that its service by mail to Mr. Harvey added three days to the fourteen-day time period, resulting in the February 19 deadline. See Fed. R. Civ. P. 72(b)(2 ) (“Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the propos ed findings and recommendations.”); id. 6(d)

4 Mr. Harvey did not explain in any of the supplemental filings why his arguments could not have been included in th e first Opposition. He simply asserted that the second and third Opposition documents “should be considered as part of the first [Opposition] Pleading dated and submitte d to the Court on February 19, 2021.” R., Vol. I at 963, 974. Appellate Case: 21-4051 Document: 010110710769 Date Filed: 07/14/2022 Page: 78 (adding three days if service is accomplished by mail). Consequently, the district court applied the firm-waiver rule and declined to consider the objections presented in Mr. Harvey’s affidavit and second and third Oppositions. As for Mr. Harvey’s objections in the fi rst Opposition, the district court reviewed them de novo and determined that Trooper Simpson’s questions about his travel plans and home address were permi ssible inquiries and did not m easurably extend the duration of the stop for the window tin t. As for Trooper Simpson’s message to Trooper Butcher, the district court noted it occurred after the traffic stop’s conclusion, and therefore, the court believed, could not have prolonged the stop’s dura tion. Finding no constitutional violation, the district court ruled that Trooper Simpson was entitled to qualified immunity. Further, the district court found th at Mr. Harvey had waived objections to the R&R’s treatment of his other federal clai ms and his state la w claim by not timely objecting. Finally, the district court declin ed to impose a spoliation sanction against Trooper Butcher for erasing his dash-cam video because the evidence showed it was erased in compliance with Utah Highway Patrol policy, long before any notice of litigation, and there was no evidence of bad fa ith. Thus, the district court ruled that Trooper Butcher was also en titled to qualified immunity.
D ISCUSSION I. Standards of Review “We review de novo the district court’ s order granting summary judgment . . . on qualified-immunity grounds.” Gutteridge v. Oklahoma , 878 F.3d 1233, 1238 (10th Cir. 2018). “When a defendant asserts qualified im munity at summary ju dgment, the burden Appellate Case: 21-4051 Document: 010110710769 Date Filed: 07/14/2022 Page: 89 shifts to the plaintiff, who must clear two hurdles in order to defeat the defendant’s motion.” Id. (internal quotation marks omitted). The plaintiff must “show (1) a reasonable jury could find fact s supporting a violation of a constitutional right, which (2) was clearly established at the time of the defendant’s conduct.” Gutierrez v. Cobos , 841 F.3d 895, 90 0-01 (10th Cir. 2016 ) (internal quotation marks omitted). In conducting our review, we construe M r. Harvey’s pro se filings liberally, but we do not act as his advocate. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005).
II. The Firm-Waiver Rule Under this court’s firm-waiver rule, “a pa rty’s objections to the magistrate judge’s report and recommendation must be both timel y and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop. , 73 F.3d 1057, 1060 (10t h Cir. 1996). If a party fails to make a timely objection, he “waives appellate review of both factual and legal questions.” Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991). Additionally, an objection must be “sufficiently specific to focus th e district court’s attention on the factual and legal issues that are truly in dispute.” One Parcel of Real Prop. , 73 F.3d at 1060.
A. Timeliness Mr. Harvey argues that the district cour t miscalculated the filing deadline for his objections. He reasons that all of his supple mental filings were timely because “7 to 10 days” should have been used for service by mail rather than Rule 6(d)’s three days. Aplt. Br. at 15. He states that the Covid-19 pa ndemic “was affecting every element of life Appellate Case: 21-4051 Document: 010110710769 Date Filed: 07/14/2022 Page: 910 during this time” and that “the head of the Postal System . . . was intentionally implementing policies and practi ces for the sole purpose of delaying the U.S. Mail.” Id. But Mr. Harvey overlooks the fa ct that despite these perceived obstacles, he was able to file his first Opposition on time. And he does not explain why the arguments presented in his affidavit and second and third Oppositions could not have been included in his first Opposition. We conclude that the district court properly calculated the filing deadline and determined that only the first Opposition was timely. B. Specificity But we disagree with the district court’ s interpretation of the scope of the first Opposition as limited to Trooper Simpson’s conduct. In that do cument, Mr. Harvey relied heavily on two cases rele vant to Trooper Butcher’s traffic stop and use of Bear: Rodriguez v. United States , 575 U.S. 348 (2015), and United States v. Peters , 10 F.3d 1517, 1522 (10th Cir. 1993). In Rodriguez , the Supreme Court held that police may not prolong a traffic stop to conduct a dog sniff unless the officer has reasonable suspicion of criminal activity. 575 U.S. at 357-58. And in Peters , this court held that an officer who has conducted a traffic stop and whose “reas onable suspicion [of criminal activity] has been dispelled or probable cau se has not developed . . . may not release the suspect[,] . . . wait until he has travelled down the road a fe w miles, and then make a second [traffic] stop based solely on the conduct that ha s already proved to be illusory” or “ call[] upon a different officer to make the s econd intrusion in his stead .” 10 F.3d at 1522 (emphasis added). Mr. Harvey’s reliance on these two case s is consistent with an objection to the magistrate judge’s ruling on his Fourth Amendment claim agai nst both Troopers. Appellate Case: 21-4051 Document: 010110710769 Date Filed: 07/14/2022 Page: 1011 Moreover, other aspects of his first Oppo sition indicate that it was predicated on more than just Trooper Simp son’s conduct. For instance, Mr. Harvey stated that both Troopers relied on his car’s tinted windows to st op him, and he argued that a jury should consider Trooper Butcher’s communications with Trooper Simpson and the ultimate use of Bear to justify the search. And Mr. Ha rvey specifically comp lained that Trooper Simpson had “called ahead to [Trooper] Butcher and instructed [him] to stop Plaintiff and use [Bear].” R., Vol. I at 942. Finally, we note that Mr. Harvey sought the imposition of a spoliation sanction against Trooper Butcher for the destruction of his dash-cam video. 5 Although Mr. Harvey’s first Op position is not a model of clarity, we conclude that he preserved for district court review the lawf ulness of both traffic stops and the resulting search. 6 The question then becomes whether we pr oceed on our own to resolve the Fourth Amendment issue. The dist rict judge did not address Peters in any way. Nor did the district judge address Rodriguez ’s holdings about the permissi ble use of a drug-detection

5 On appeal, Mr. Harvey does not challenge the district court’s rejection of his spoliation argument, so we do not address that issue. See Tran , 355 F.3d at 1266.

6 We agree, however, with the district court’s appli cation of the firm-waiver rule on his other federal claims and his Utah Constitution claim. Mr. Harvey does not invoke the rule’s inte rests-of-justice exception. See Casanova v. Ulibarri , 595 F.3d 1120, 1123 (10th Cir. 2010) (lifting the bar to appe llate review if warranted by “a pro se litigant’s effort to co mply [with the firm waiv er rule], the force and plausibility of the explanation for his failu re to comply, and th e importance of the issues raised” (alterations and internal quotation marks omitted)). And “we routinely have declined to consider arguments that are not ra ised, or are inadequately presented, in an appe llant’s opening brief.” Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007). Appellate Case: 21-4051 Document: 010110710769 Date Filed: 07/14/2022 Page: 1112 dog during a traffic stop when an officer has or has not de veloped a reasonable suspicion of criminal activity. And although the magistrate judge mentioned Peters in a footnote, she distinguished it without discussing the effect of Trooper Simpson’s message to Trooper Butcher to “go stop” Mr. Harvey’s ca r so “you can run yo ur dog,” and Trooper Butcher’s response, “ok i[’]ll hurry and head th at way.” R., Vol. I at 412. Unlike the magistrate judge, we are not convinced that the Troopers’ communications lack Fourth Amendment relevance simply because (1) Tr ooper Simpson is not a supervisor, and (2) Trooper Butcher perceived a window tint violation. Finally, the Appellees do not address these points and the relevant aspects of Rodriguez and Peters on appeal. Although “[s]uccessive investigatory stop s are not per se prohibited,” they are “inherently more intrusive a nd coercive than the first.” United States v. Padilla-Esparza , 798 F.3d 993, 1000 (10th Cir. 2015) (internal quotati on marks omitted). Thus, we decline to address the Fourth Amendment issues applicable to this case in the first instance. The district court is better suited for that task. 7

7 To the extent Mr. Harv ey insists the district judge should have reopened discovery based on his February 22 affida vit, we disagree. The affidavit was untimely filed as an objection to the R&R. And it was not filed “i n direct response to a motion for summary judgment,” as re quired by Fed. R. Civ. P. 56(d). Hackworth v. Progressive Cas. Ins. Co. , 468 F.3d 722, 732 (10th Cir. 2006). Appellate Case: 21-4051 Document: 010110710769 Date Filed: 07/14/2022 Page: 1213 C ONCLUSION We reverse the district court’s judg ment and remand for further proceedings consistent with this Order and Judgment. In doing so, we express no view as to the outcome of the district court’s re newed Fourth Amendment analysis.

Entered for the Court

Joel M. Carson III Circuit Judge Appellate Case: 21-4051 Document: 010110710769 Date Filed: 07/14/2022 Page: 13