NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0430n.06 No. 10-5567 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT CHRIS NEAL; HEATH ER HARRIS, for them selves and as n ext of kin and father and mother of L exus Neal; LEXUS NEAL, ON AP P EAL FR OM THE P laintif fs-App ellees, UNITED STAT ES DIS TRICT COURT F OR THE MIDDLE v. DISTRICT OF TENNEES SEE W.B. MELTO N, Indi vidu ally; KELLY HULL, In divid ually, Defendan ts-Appellants. ___________________________________/ BEFORE: SUHRHEINRICH, MOORE and COOK; Circuit Judges. SUHRHEINRICH, Circuit Judge. Plaintiffs-Appellee s, Hea ther Har ris (“H arr is”), Chris Nea l (“N eal” ), and L exus Nea l (“L exus”), broug ht this § 1983 claim ag ainst Def endants-A

ppellants, W.B. Melton (“Me lton”) and Kelly Hull (“H ull”), in their individua l capacities, alleg ing Four th Amendment violations of excessive forc e, unrea sonable seizure, and unrea sonable sear ch, alleg edly sustained during a traff

ic stop. The district court denied Def endants’ reque st for qualified immunit y and they seek reve rsal of that decision. Be cause the forc e used was not objectively unrea sonable and the offic ers ha d rea sonable suspicion to sear ch the ve hicle, we REVERSE

.I. BACKG ROUND

On April 25, 2008, in O verton County , Tenne ssee, Deputy Sheriff Kelly Hull and Sherriff 1 W.B. Melton wer e riding toge ther on patr ol. Chief Deputy Fr ank Dial rec eived a call repor ting a person se lling drug s from a blue car near Rickman, Tenne ssee, a

nd rela y ed the r eport to Hull. At approximately 8:45 p.m., Hu l l and Melton, patrolling near Rickman, spotted “a blue Cadillac that matched the descr iption of the vehicle for which [t hey ] had been on the lookout.” Hull radioe d the license plate number to a dispatcher for a chec k ag ainst the National Crime I nformation Center (“N CI C”) databa se. The chec k indicated that the license plat e wa s re g istered to a brown, Buic k Riviera in Hamilton County , Tenne ssee, and that the license plate was expired. Hull activate d his emerg ency

lights to conduc t an investig atory stop. Activating the emer g ency lights also activate d the video came ra mounted to the patrol car . As a re sult, the rest of the stop is rec orded on vide o. After activating his lights, Hull saw an object thrown out of the driver’ s side wi ndow. Melton “hea

rd something hit the windshield of the patrol car , as if the occupa nts of the vehicle had thrown something out.” These events a re not visible on video. I n response to Hull’s lights, Har ris, the driver of the blue Cadillac, turned into a drivewa y and stopped. Nea l occupie d the front passeng er seat. L exus, Har ris and Nea l’s minor daug hter, occupie d the re ar se at, wher e she w as re strained in a c hild safety seat. Hull approa ched the driver’ s side of the vehicle and Melton approa ched the passeng er side. Hull reque sted Har

ris’s l icense , reg istration, and proof o f insurance and informed her why he had pulled her over. Hull then ran a chec k of the vehicle’ s reg istration; the re gi stration matched the Hull is no longer

with the Sheriff’ s Depa

rtment; he re tired in Novembe r 2008. 1 2Cadillac and Har ris’s l icense was v al i d

. Hul l informed Harris that she shoul d contac t the C ounty Clerk to resolve the databa se problem with her license plate. This proce ss took approximately seven and half to eig ht minutes. Hull then retrie ved his police dog , Solomon, from his vehicle in order to conduct a “swe ep” around the Cadillac to detec t the prese nce of drug s. W al k i n g Solomon around the Cadillac, Hull claims that Solomon twice “ale rted” positively at the driver side door by sitti ng on his hind leg s (in the video, Solomon, is visible during only one positive indica tion). I n response , Hull asked Har ris about the prese nce of drug s, to which she replied that she was unawa re of any drug s in the vehicle. Hull reque sted Har

ris and Nea l to exit the vehicle so that he and Melton could p erf orm a sear ch. Hull then returne d Solomon t o the police ve hicle. About thirty seconds later, Melton opened the passeng er ca r d o or so that Nea l could ex it. Almost simult aneously , Solomon, who was not thoroug hly secur ed in the police v eh i cl e, trotted toward the Cadillac and enter ed the now-ope n front passeng er car door. Melton initially rea ched for Solomon, howeve r Nea l was try ing to exit the vehicle at the same time (Ne al and Solomon wer e both crossing the door’s threshold simult aneously ), and Melton backe d awa y so as to allow Nea l to exit

. Solomon fully enter ed the vehicle, an d i n the vi deo he is visible in the back passeng er seat where L exus was sit ting. Nea l, still standing by the passeng er door , protested the pr ox imity of Solomon to L exus. Hull circ led the ca r to remove Solomon and a pproac hed the passeng er door wher e Nea l stood. As Hull approa ched the door, Melton seized Nea l’s left arm and escor ted him awa

y from the Cadillac back toward the police vehicle. The video indicates that as Melton g rabbe d Nea l’s arm, he may also have pulled a portion of Ne al’s t-shirt.

3Hull succe ssfully remove d Solomon from the Cadillac. I n total, Solomon was in the vehicle

approximately fourtee n seconds. Pl a in ti f f s ma in ta in th a t d u r in g this time Solomon “attac ked” L exus, resulting in a scratch to her. 2 Nea l alleg es that Melton “slammed” him a g ainst the police vehicle. Although the ang le of the video lens captur es only the hood of the police vehicle, it is clea r from the ref

lection in the hood and the e lapsed time that Ne al is not thrown ag ainst the vehicle. His hands re mained visible until Melton points t o the hood. Nea l’s hands then disappea red for approximately three seconds and

rea p p ea re d wi th the contents of his pockets. Melton proce eded to inspect these items. Melton 3 appea rs to be standing at Nea l’s side. Har ris, meanwhile, retrie v ed L ex u s fr om the back seat of the Cadillac. The vehicle was

sear ched for approximately nine minutes. The sear ch of t h e Cadillac produce d no drug s and Plaintiffs wer e permitted to ree nter their vehicle and depar t. The t o t al d u ration of the stop was approximately

twenty -two minutes. On J uly 17, 2008, Plaintiffs broug ht this § 1983 action in fede ral court asser ting four claims: (1) unrea sonable seizure when they wer e detained afte r Hull finished chec king Har ris’s reg istration; (2) unreasona

ble s ear ch of the C adillac based “on the pretex t of a ‘hit’ by the dog” ; (3 ) ex ce s s i ve forc e when Melton threw Nea l ag ainst the vehicle; (4) excessive force when Solomon attacke d

No further details about the scra tch exis t in the rec ord. Whil e L exus is visible in the video 2 being h el d b y h er m o t her less than a minute afte r S olomon is remove d from the car , no scra tch i s visible and the video doe s not show L exus receiving any medical attention from her mother or the office rs. The e x tent of the injury is not relevant, howe ver, a s this court has declined to adopt a de minimis injury require ment for excessive forc e claims under the Four th Amendment. See Morrison v. Bd. of Trustees of Gree n Twp. , 583 F.3d 394, 406- 408 (6th Cir. 2009). Plaintiffs do not claim that Neal’s pe rson was unr easona bly sear ched. 3 4L exus. T h e d i s t rict court denied Def endants’ motion for summary judgme nt based on qualified immunit y on all claims. This appea l followed. II. ANALYSIS

A. Standard O f Review & Jurisd iction Def endants file this interloc utory appea l pur suant to 28 U.S.C. § 1291. An appellate court may hear an interlocutory appea l “for denials of summary judgme nt motions based on qualified immunit y to the ex tent that the appeal raises issues of law.” Grawey v. Drury , 567 F.3d 302, 310 (6th Cir. 2009) (c itations omi tted). We revie w de novo whether the fac ts, viewed in the light most favor able to Plaintiffs, prese nt any constitutional violations and if a violation exis ts, whether it involved a constitution al rig ht clea rly established at the time of the stop. Id

.

B. Mer its Stating a claim under 42 U.S.C. § 1983 require s a plaintiff to establish “the depriva tion of

a rig ht secur ed by the Constit ution or laws of the United States” that was “ca used by a person acting under color of state law.” Marvin v. City of Taylor , 509 F.3d 234, 243 (6th Cir. 2 0 0 7 ) (i nterna l citations and quotation marks omitted). Qualified immunit y may shield an office r from suit “‘w hen she makes a decision that, even if constitutionally defic ient, rea sonably misappreh ends the law g overning the circ umstances she confr onted.’” Id

. (quoting Brosseau v. Haugen , 543 U.S. 194, 198 (2004))

. To deter mine whether Def

endants are entitled to qualified immunit y , we conduct a two-par t inquiry

. First, we ask whether Def endants’ conduct violated a constitutional rig ht. Saucier v. Katz ,

5533 U.S. 194, 201 (2001). I f t here is no constitutional violation, Pl aintiffs’ § 1983 claims fail as 4

a matter of law and Def

endants are there fore entitled to summary judgme nt and do not need qualified immunit y . Marvin , 509 F.3d at 244 (citing Scott v. Harris , 550 U.S. 372, 386 (2007))

. I f, though,

a constitutional violation exis ts, the court then asks whether that rig ht was clea rly established in light of the specific circ umstances of the case . Saucier , 533 U.S. at 201. When the law is not sufficie ntly clea r such that a rea sonable office r would be on notice that his conduct is clea rly unlawful, qualified immunit y is appropria te. Id . at 202. 5 1. Excessive F orce Claim s Plaintiffs asser

t excessive forc e claims on behalf o f Ne al an d o n behalf of L exus. The Supreme Court has made clea r that when law enfor ceme nt stops a vehicle, passeng ers in that vehicle

are seized within the meaning of the Four th Amen d m ent and, thus, may challeng e the constitutionalit y of the stop. Brendlin v. Calif ornia , 551 U.S. 249, 251 (2007); see also United States v. Campbell , 549 F.3d 364,371 (6th Cir. 2008) (ac knowledg ing Brendlin ). Thus, althoug h Har ris was the driver of the blue Cadillac, both Nea l and L exus have standing to asser t these claims. See B rendlin , 551 U.S. at 259 .

Whil e Saucier held that the sequenc e of this analy sis, as it is portray ed here , was mandatory , 4 the Court has since stated that conducting the analy sis in this order , while benef icial, is not require d. Pearson v. Callahan , 555 U.S. 223 (2009). A third step considering whether a “plaintiff has offe red sufficie nt evidenc e to indicate that 5 what the officia l alleg edly did was objectively unrea sonable in light of th e cl ea rl y est ablished constitutional right” is used by some courts, but is redunda nt when the analy sis c onsiders whe ther the conduc t was objec tively unrea sonable. Grawey v . Drury , 567 F.3d 302, 309 ( 6th Cir. 2009).

6a. Excessive F orce Against Neal

Plaintiffs contend t h at Def endants used excessive forc e when Melton “thre w [Neal] up ag ainst his car afte r he protested the dog jumping on his small child.” On appea l, Hull and Melton

ar gu e that they should have been g rante d qualified immunit y on this claim beca use the video establishes that Melton did not throw Nea l ag ainst either vehicle during the stop. The district court did not ex plicitly

addre ss this claim. “F ourth Amendme n t jurisprudenc e has long rec og nized that the rig ht to make an arr est or investiga tory stop nece ssarily car ries with it the rig ht to use some deg ree o f p h y sical coer cion or threa t there of to eff

ect it.” Graham v. Connor , 490 U.S. 386, 396 (1989) (citing Terry v. Ohio

. 392 U.S. 1, 22-27 (1968))

. The deter mination of whether the forc e used is rea sonable under the Four th Amendme n t “requires a car eful balanc ing of the nature and quality of the intrusion on the individual’s Four

th Amendment interests ag ainst the counter vailing g overnme ntal interests at stake. Id

. (citations and internal quotation marks omi tted). I n balanc ing the se i ntere sts, the court should pay attention to the fac ts and circ umstances of the particula

r case , including the following fac tors: (1) “the sever ity of the crime at issue,” (2) “w h et h er the suspect poses an immediate threa t to the safe ty of the office rs or others,” and (3) “whe ther he is actively resisting arr est or attempting to evade

arr est by flig ht.” Id

. The forc e used by Melton was rea sonable. The video confirms that Melton took Nea l’s arm and escor ted him awa

y from the Cadillac as Hull approa ch ed t o re trieve Solomon. Under the Graham fac tors this act was cer tainly not unrea sonable: alt h o u gh Nea l in no way resisted Def endants’ direc tives or even Melton’s use of forc e, it was not unrea sonable for Melton to reduc e any threa t of harm by using a minimal amount of forc e to ensure that Nea l di d n ot impede Hull’s

7eff

ort to remove Solom on from the vehicle. Escorting Nea l back to the hood of the police c ruiser

was simil arly rea sonable. The video does not show Melton using any other forc e ag ainst Nea l and

cer tainly does not indica

te that Melton threw him ag ainst a car . Although Nea l c ontinues to a ssert that he was “g rabbe d” and “[drag g ed] over” to the police vehicle “whe re he slammed up ag ainst it,” the video rec ord indicates that this is not the case . See Scott , 550 U.S. at 380-81 (holding that a court should rely on the vi deo re cord w hen the plaintiff’ s version of the fac ts blatantly contra dicted it ). Absent any o t her asser

tions of forc e ag ainst Nea l, Plaintiffs have failed to alleg e a constitutional violation. As a re s ult, we dismiss this excessive forc e claim beca use it fails as a matter of law to state a constit u t i o n al v i olation and need not decide whether Def endants’ actions merit qualified immunit y . See Marvin , 509 F.3d a t 244. Moreove r, it appea

rs that Plaintiffs abandon ed this claim during ear lier proce eding s. Plaintiffs’ response to Def endants’ concise statement of m ater ial fact s ad mits that Melton did not throw Nea l ag ainst the car or otherwise use any forc e ag ainst him. See R.E. 12, Concise Statement of Material Facts of Defendants , ¶17 (“A s ev i d en ced by the patrol car video from the stop, Def endant Melton did not throw him ag ain s t h i s ca r of the patrol car or otherwise use any forc e ag ainst him.”); R.E. 24, Response to Defendants’ Statement of Facts , ¶17 (“A dmitted.”). Although both parties address thi s issue in their briefs, Plaintiffs have a lrea dy conce ded that Melton did not use excessive for ce a g ainst Nea l.

b. Excessive F orce Against Lexus Plaintiffs alleg e t h at S o l omon attacke d L exus. The district court acknow ledg ed a distinct claim, bu t d i d n o t separ ately analy ze whether qualified immunit y was war rante d. On appea l,

8Def

endants arg ue that Solomon’s entry into the car di d not constitute excessive force, and even if it did, it was unintentional and a ccide ntal. As discussed previously , under Saucier , D e f e n d a n ts ’ c o n d u c t mu s t a mount to a constitutional violation. Part of this showing is demonstrating that “the defe ndant acte d knowing ly or intentionally to violate his or her constitutional rig hts, such that mere neg lige nce or rec klessness is insufficient.” Ahlers v. Schebil , 188 F.3d 365, 373 (6th Cir. 1999) (citing Harlow v. Fitzgerald , 457 U.S. 800, 815 (1982))

. The Supreme Court has been expli cit about this require ment in the Four th Amendment context, instructing that a “[v] iolation of the Four th Amendment require s an intentional acquisition of phy sical control.” Brower v. County of Inyo , 489 U.S. 593, 596 (1989). As Plaintiffs them s el v es explain, Solomon, “unre strained and unattended,” “exited Def endants’ car an d enter ed Plaintiffs’ automobile without protest from either Def endant.” Neg lige nce may be evident from Hull’s failure to adequately secur e Solomon and from Melton’s failure to effe ctively

g rab Solomon as he e ntere d the vehicle , but this i s not the ty pe of intentional

or knowing contac t require d for a § 1983 claim. As a result, Plaintiffs have failed to state a § 1983 claim for excessive forc e and we dismiss this iss u e. See generally Ahlers , 188 F.3d at 374 (dete rmining that plaintiffs’ inability to “demonstra te knowing or intentional behavio r” b y t h e defe ndants “desig ned t o violate [pl aintiff’s] constitutional rig hts” failed to state a constitutional claim that would pre clude qua lified immunit y ). Our decision in Dunigan v. Noble , 390 F.3d 486 (6th Cir. 2004) , supports this c onclusion. I n Dunigan , an office r broug ht a police dog into a home with the intention of seizing a suspect. A

woman stumbled into the dog ’s d ef en s i v e p er imeter and the dog bit her. This court reje cted her §1983 claim on the g rounds that she had failed t o al l ege a s eizure cog nizable under the Four th

9Amendment bec ause the office r had not acte d with intent. Id . at 493. Simil arly , Hull and Melton

did not “‘throug h means intentionally applied’” use Solomon to seize L exus or exert forc e upon her,

even though their neg lige nce allowed the dog to come into contac t with her. See id

. at 492 (quoting Brower , 489 U.S. at 597, for t h e proposition that the Fourth Amendment is only implicated when the gover nment intentionally restric ts fre edom of movem ent); see also Matheny v. Boatri ght , 970 F.Supp 1039, 1046 (S.D. Ga. 1997) (holding that the mere prese nce of a police dog did not amount to a misuse of forc e); T h o ma s v. Iv ezaji, No. 96-1775,1997 WL 720448 (6th Cir. 1997) (unpublished) (dismissing a § 1983 excessive forc e claim ag ainst an office r who had opened a door and unintentionally injured an individual standing behind it); cf. Hansen v. City of St. Paul , No. 06- 1286, 2007 WL 4224052, at *3 (D. Mi n n . 2007) (unpublis hed) (holding that the accidental biti ng of a third party was not actionable under § 1983, even t h o u gh i n that case the office r had intentionally rele ased the dog , beca use the dispositi ve inquiry under the Four th Amendment was not whether the office r intended to r elea se the police dog , but w hether he intended to se ize the injured party ). 2. Unreasonable Seizure Plaintiffs alleg e that Def

endants violated their Four th Amendment rig hts by detaining them afte r the vehicle’ s reg istration was confirme d. The district court deter mined that Def

endants failed to “ar ticulate any specific concr ete fac ts” that would support the continued detention afte r the reg istration chec ked out and denied summary judgme nt. Def endants arg ue that they had rea sonable suspicion to detain the vehicle for a canine swee p, so no Fourth Ame ndment violation occurr ed. So long as an office r has probable cause to believe that a traff ic violatio n o cc u rred, the “re sultant stop is not unlawful and does not violate the Four th Amendment.” United States v. Davis , 10430 F.3d 345, 352 (6th Cir. 2005). I t is undisputed here that Def endants had probable cause to stop Plaintiffs. The question is whether they had re asonable suspicion for the c ontinued detention. Although the Supreme Court has he ld that a dog sniff, standing alone, does not violate the Four th Amendment, United States v. Place , 462 U.S. 696 (1983), it must o ccur during a lawful traff ic stop. Illinois v. Caballes , 543 U.S. 405, 409 (2005). Thus, we must deter mine whether Def endants had rea sonable suspicion to further detain Plaintiffs in order t o conduct a dog sniff beca use Solomon’s sweep oc curr ed af ter the c ompletion of the traf fic stop. Terry applies to continued detentions. See Davis , 430 at 354. I t allows an office r to continue to detain an individual brie fly “for investiga tive purposes if the officer has a reasonable suspicion . . . that criminal ac tivity

has occ urre d or is about to occur .” Id. We evaluate the constitutionality of a Terry stop in a two-par ty inquiry

. First, we consider whether a proper basis for the stop exis ts, “‘w hich is judg ed by examining whether the law e nforc ement off

icials wer e aw are of specific and articula ble fac ts which g ave rise to rea sonable suspi ci o n . ’” Id

. at 354 (quoting United States v. Garza , 1 0 F. 3 d 1 2 4 1 , 1245 (6th Cir. 1993)). I f, under the totality of the circ umstances, the court finds a p roper basis for the continued detention, it then asks “‘w hether the degr ee of intrusion

. . .

was rea sonably rela ted in scope to the situation at hand, which i s j u d g ed by examining the

rea sonablene ss of the officia ls’ conduct g iven their suspicions and the surrounding circ umstances.’ ” Id. (quoting Garza , 10 F.3d a t 1245). This second que stion re quires the court to c onsider whether the continued detention is r easona ble, “‘tha t is, (1) was it sufficie ntly limit ed in time, and (2) wer e the investiga tive means used the least intrusive means rea sonably available .’” Id

. (quoting Benne tt v. City of Eastpointe , 410 F.3d 810, 825- 26 (6th Cir. 2005)).

11Reasonable suspicion is something more than a “mer e hunch.” United States v. Campbell ,

549 F.3d 364, 371 (6th Cir. 2008). I t exis ts when an office r has a “par ticularized and objective basis for suspecting the person of criminal activity based on specific and ar t i culable fac ts

. . . .” Id

. (interna l citations and quotation marks omitted). Defen d an t s m aintain that they had rea sonable suspicion to justify further detention of Plaintiffs. We ag ree . First, Plaintiffs’ vehicle matched the descr iption of the vehicle repor ted to be selling drug s. Hull stated that he and Melton observe d a “blue Cadillac that matched the descr iption of t he vehicle for which we had been o n t h e l o o k o u t ” near the alleg ed drug selling location. We 6 have found rea sonable suspicion wher e a stopped vehicle matched the “color and sty le” of a vehicle repor tedly tied to criminal activity in the vicinity

. I n Un i t ed S t ates v. Hurst , a burg lary victim repor ted seeking a “dar

k-colore d Thunderbir d” in his drivewa y shortly befor e discovering that a crime had occur

red. United States v. Hurst , 228 F.3d 751, 755 (6th Cir. 2000)

. Shortly there afte r,

a local law enfor ceme nt office r saw a vehicle matching this descr iption “not far ” from the location of the burg lary

. Id

. The office r also observe d that the front g rill of the vehicle was missing and rela y ed the identify ing information to the next county , which the vehicle was then approa ching

. Id

. Upon enter ing the next county , the vehicle was observe d by a county sheriff , who pulled it over. Id

.

I n a Supplemental Affida

vit submitt ed by Hull, he explains that the repor t rec eived by police 6 included the license plate number of the alleg ed drug vehicle, which was the same number on Har ris’s blue Cadillac plate. I n his orig inal aff idavit he explains that the vehicles matched, but does not provide this detail. The district c ourt reje cted the Supplemental Affida vit on the g round that it contained f

acts known to De fenda

nts at the time of the summary judgme nt ruling. Whether the district court proper ly reje cted the Supplemental Affida vit is outside the scope of this i n t er l o cutory appea l. The exact match of the license plates betwee n the vehicle alleg edly selling drug s and Har

ris’s vehicle cer

tainly streng thens a finding of rea sonable suspicion. But even ignor ing this detail, there is still support for rea sonable sus p i ci o n in the orig inal aff idavit which aver red that [t he vehicle was in the same vicinity ] and that it was a “blue Cadillac that matched the descr iption” of the re ported c ar. 12Although the vehicle was actually a dar k-blue Mer cury Couga

r, t his court concluded that beca use

a vehicle “roug hly matching the appea ranc e . . . in color and sty le was repor tedly seen” at the scene of the burg lary and then observe d depar ting the vicinity of the burg lary (whe re the office r noted the missing front g rill), the sheriff had rea sonable suspicion to stop a vehicle matching this descr iption. Id

. at 757. Whil e the vehicle in Hurst was spotted shortly afte r the alleg ed criminal activity , and here the rec ord does not ref

lect exactly how long betwee n the repor t and the stop, Hurst supports a finding

o f rea sonable suspicion beca use Har ris’s vehicle matched the descr iption of the vehicle allege d l y dealing drug s and was located in the s ame vicinity as t he allege d criminal a ct i v i t y . S ee generally Campbell , 549 F.3d at 371 (finding rea sonable suspicion when office rs had a “par ticularized and objective ba sis for suspecting the par ticular pe rson of c riminal activity ”). Additionally , and most importantly , Hull and Melton both aver red that they sensed, by sight and sound respe ctively , that items wer e thrown from the Cadillac following activation of the police lights. This fac t, which Plaintiffs do not deny , establishes the nece ssary rea sonable suspicion. See United States v. Moore , 130 F. App’x 728, 734 (6th Cir. 2005) (disposing of marijuana blunt when confr onted by police supported finding of rea sonable suspicion); United States v. Connally , Nos. 91- 6401/6440/6441, 1993 WL 8151, at *2 (6th Cir. 1993) (unpublished decision) (finding rea sonable suspicion when, in a known dr ug traff icking are a, off

icer s observe d a pede strian throw something into a van, at which point the pedestria n walked awa

y from police and the van pulled awa y ); United States v. Prior , 941 F.2d 427 (6th Cir. 1991) (finding rea sonable suspicion when an office r observe d

a man throwing materia l onto a roof during a drug swee p of a housing unit); see also United States

v. Potter , 218 F. App’x 809, 814 (6th Cir. 2007) (finding probable cause when an office r spotted a vehicle that was the subject of a “be- on-the-lookout” broadc ast, observe d the occupa nt of the vehicle

13throw something out the window, and found the suspect reluc tant to y ield to the office r); cf

. United States v. Patterson , 340 F.3d 368 (6th Cir. 2003) (re jecting rea sonable suspicion when office rs, who

wer e approa ching a g roup, saw a member of the g roup throw something into near by bushes, beca

use the individual who disposed of the item was not the defe ndant). Plaintiffs complain that the disposed items are not visible in the video. But beca use Plaintiffs n ev er d en y that they threw any objects, ther e i s n o d i sputed fac t here

. Plaintiffs’ relianc e on Scott v. Harris is misplaced. Scott held t hat “[w]hen opposing parties tell two differ ent stories, one of which is blatantly contra dicted by the

rec ord, so that no rea sonable jury could believ e i t , ” t h en a court may rely on a poli ce video of t he event as it considers qualified immunit y . Scott , 550 U.S. at 380-81. As noted, P l ai n t i ffs never direc tly disputed Defe ndants’ ac count. I n sum, considering that the vehicle descr iption matched that of the alleg ed drug vehicle, that Def endants found the vehicle near the location of the alleg ed drug dealing , and that Def endants sensed objects wer e thrown from the wi ndows once Def endants indicated their intention to stop Plaintiffs, we find that Def endants had rea sonable s u s p i ci on that Plaintiffs wer e involved in drug activity sufficie nt to justify their continued detention. See Davis , 430 F.3d at 345-55 (finding police had reasonable suspicion to continue to detain the defe ndant after the completion o f a t ra ff i c stop based on a

rticulable f

acts that the de fenda

nt’s vehicle c ontained nar cotics). We next consider whether the detention was sufficiently limit ed in time and limited to the least intrusive means rea sonably available

. See D avis , 430 F.3d a t 354. Hull had Solomon on t he

scene and, thus, was able to limit the additional time nece ssary to complete th e s wee p. I n total it took him a little under

a minute to retrie ve Solomon from the vehicle and about another minute to complete the swee p. Fu rt her, using a drug -dog to walk around the perimete r of a vehicle is a

14“minimally intrusive means of investiga ting whether the officers’ suspicions that [t he] vehicle

contained narc otics wer e valid.” Davis , 430 F.3d at 355. As a result, the detention was permissible under Terry and did not amount to a violation of the F ourth Amendment. Plaintiffs f

ail to e stablish a constitutional violation and, thus, w e need not addre ss whether Def endants a re in ne ed of qua lified immunit y . Marvin , 509 F.3d a t 244. 3. Unreasonable Search Plaintiffs contend that Def endants violated Ha rr i s ’s Four th Amendment rig hts when they “se ar ch ed h er au tomobile on the prete x t of a ‘hit’ by the dog ” beca use “such sear ch was without probable cause .” The district c ourt focuse d on the lack of justification f or any thing pa st the initial traff ic stop and denied Def

endants summary judgme nt on this claim. Def endants asser

t that they are entitled to qualified immunit y beca use Solomon’s positive aler t provided probable cause to sear ch Har ris’s vehicle

. “A positive indication by a proper ly trained dog is sufficie nt to establish probable cause for the prese nce of a controlled substance.” United States v. Diaz , 25 F.3d 392, 393-94 (6th Cir. 1994). Once probable cause is established a vehicle sear ch is permissible without a war rant un d er the automobile exception. United States v. Smith , 510 F.3d 641, 647 (6th Cir. 2007) (citi n g United States v. Lumpkin , 159 F.3d 983, 986 ( 6th Cir. 1998)). Be cause Def

endants possesse d rea sonable suspicion suffic ient to de tain Plaintiffs a fter the reg istration issue was resolved, permitting Solomon to co n d u ct a sniff test of the vehicle did not

occur outside of the time constitutionally permitted for the stop. The sniff test resulted in at le ast 7

The district court considere d sua sponte whether S o l o m o n wa s a proper ly trained police 7 dog

. On appea l, Def

endants list Solo m o n’s numerous qualifica tions. Be cause Plaintiffs do not challeng e the qualifica tions, we decline to addre ss the matter. See Fe d. R. App. P. 28(b) (re quiring 15one positive aler t on the driver side of the Cadillac. This aler t established probable cause to sear ch 8 the Cadillac. Ag ain, Plaintiffs have failed to prese nt a constitutional violation, and we dismiss their claim without reac hing the question of qualified immunity

. Marvin , 509 F.3d a t 244. III. CONCLUSION For the fore g oing r easons, we REVERSE the district c ourt’s denial of qua lified immunit y and REMAND for e ntry

of judg ment in favor of

Def endants.

appellee s’ brief

to contain their c ontentions and supporting rea soning)

. The aler t is visible in the video, despite Plaintiffs’ asse rtion to the contra ry . To the extent 8 that their acc ount contra dicts th e ev en t s p o rt ray ed on the video, the video serve s as an acc urate rec ord upon which this cour t may rely

. Scott , 550 U.S. at 380-81.

16KA REN NELSO N MOORE, Circuit Judge, concurring in part and dissentin g in part.

I join Part I I .B.1 of the majority opinion, concluding that summary judgme nt should be g rante d to the office rs on the Plaintiffs’ exces s i v e- forc e claims. I dissent from Parts I I .B.2 and I I .B.3 of the majority ’s opinion beca

use I believe that the fac ts viewed in the light most favor able to the Plaintiffs demonstrate that g enuine issues of materia l fac t rema in reg arding the rea sonablene ss of the seizure and sear ch. See Ctr. for Bio-Ethical Reform, Inc., v. City of Springboro , 477 F.3d 807, 825 (6th Cir. 2007). Taking the fac ts in the light most favor able to the Plaintiffs, I believe that the office rs lacke d

rea sonable suspicio n to detain the Plaintiffs afte r completion of the vehicle- reg istration chec k in order to conduct a canine swee p. I n their response t o the officers’ statement of materia l fac ts, the Plaintiffs disputed the office rs’ asser tion that s o mething had been thrown from the Plaintiffs’ vehicle. On the materia ls proper ly befor e us, there fore , the only undisputed “spec ific and articula ble fac t” that supported the continued detention was the office rs’ observa tion that the Plaintiffs’ vehicle was blue. The offic ers c annot show re asonable suspicion based only on the matching color of the vehicle. The stop in United States v. Hurst , 2 2 8 F. 3 d 7 51, 757 (6th Cir. 2000), in contra st, was supported by

numerous spec ific deta ils. Even if the office rs had possessed rea sonable suspicion for the continued detention, I do not believe that the office rs are entitled to summa ry j u d gm en t o n the claim that they conducte d an

unrea sonable sear ch. Probable cause for the vehicle sear ch turned on whether the dog indicated the prese nce of a controlled substance in the Plaintiffs’ car . I t is not obvious from the videotape that the dog aler ted. There is there fore a g enuine issue of materia l fac t prec luding summary judgme nt. For these re asons, I

respe ctfully

dissent from Parts I I .B.2 a nd I I .B.3 of

the majority ’s opinion.

17