United States District Court, D. Idaho
JOSHUA OQUENDO and AMBER OQUENDO fka AMBER HALL, husband and wife, Plaintiff,
CITY OF BOISE, et al., Defendants.
MEMORANDUM DECISION AND ORDER
Lynn Winmill, Chief Judge
Court has before it cross-motions for partial summary
judgment. The Court heard oral argument on the motions on
February 8, 2017, and took the motions under advisement. For
the reasons explained below, the Court will grant in part and
deny in part both motions.
August 14, 2013, Boise City police officers Martinez and
Ransom pulled over a pickup truck driven by Amber Hall for
having a broken tail light. Amber had two passengers, Joshua
Oquendo and Henry Hall. The time was 10:16 p.m. See CAD
Report (Dkt. No. 19-7); Martinez Declaration (Dkt.
No. 17-3) at p. 2.
officers approached the truck. Officer Martinez was a new
officer and was being supervised by Officer Ransom at this
time. See Complaint (Dkt. No. 2) at ¶ 15.
Martinez advised Amber of her broken tail light, asked for
her driver's license, registration, and insurance, and
asked if she would consent to a search of the truck. She
provided the documents but refused to give consent to the
search. After Amber turned over the requested documents, the
officers returned to their patrol car.
Martinez then realized Amber's insurance card had
expired. He returned to the truck, obtained a current
insurance card, and returned to his patrol car.
point, the officers called dispatch for a K-9 unit to do a
drug sniff of the car. At 10:19 p.m., the K-9 unit officer
that evening - Officer Bonas - responded to the call and
started proceeding to the truck's location. See Bonas
Deposition (Dkt. No. 19-7) at p. 40.
officers used their computer to run the names of the
truck's occupants for criminal background checks: They
ran Amber at 10:20 p.m., Joshua at 10:22 p.m., Henry at 10:24
p.m., and the truck license plate at 10:27 p.m. See
Martinez Declaration (Dkt. No. 17-3) at ¶ 12.
During this time - around 10:21 pm. - Officer Hilton arrived
on scene to assist the officers. See CAD Report,
sitting in his patrol car, Officer Martinez was not
completing the citation for the broken taillight. See
Martinez Deposition (Dkt. No. 19-3) at p. 69;
Martinez Declaration (Dkt. No. 17-3) at ¶ 13
(“I had not completed a citation for no tail lights
when K-9 Officer Steve Bonas arrived at the scene with his
dog at approximately 10:28 p.m.”). He would not
complete the citation until after the drug-dog sniff. See
Ransom Declaration (Dkt. No. 17-4) at ¶ 18 (stating
that “[a]fter the drug sniff was completed, I directed
Officer Martinez to finish his cite . . .”). In fact,
Officer Martinez did not actually “finish up” the
citation, and give it to Amber, until after he had arrested
Amber and transported her to the jail. See Martinez
Deposition, supra, at p. 69 (stating that the citation
“probably would have been finished at the jail based on
everything that happened. That's probably where I would
have finished it up at.”).
officers sat in their patrol car, the K-9 Unit Officer Bonas
arrived at 10:28 pm. See CAD Report (Dkt. No. 19-7);
Bonas Declaration (Dkt. No. 17-6) at ¶ 2.
By now, about 12 minutes had elapsed since Amber's truck
was pulled over. Thinking “the stop was taking an
extraordinarily long time, ” Amber began using her cell
phone to record video of the police. See Amber Oquendo
Declaration (Dkt. No. 25-3) at ¶ 26.
Bonas discussed the situation with Officers Martinez and
Ransom for a few minutes and then let his drug-dog out to
pee. See Bonas Deposition (Dkt. No. 19-6) at pp.
recalls waiting “at least 15 to 20 minutes” in
the truck until the police approached with the dog.
Id. at ¶ 31. That would mean that the officers
approached the car with the drug dog between 10:33 p.m. and
10:38 p.m. By then, the traffic stop would have lasted 17 to
Martinez and Ransom, along with K-9 Officer Bonas and Officer
Hilton, approached the truck. Officer Martinez had not
completed the citation for the broken taillight and so their
purpose in approaching the truck was not to serve the
citation. Rather, their sole purpose was to remove the
truck's occupants so that a drug sniff could be
completed. Up to this point, the officers agree, the
truck's occupants had been cooperative and pleasant.
Martinez directed “all occupants of the vehicle to step
out so that a drug sniff could be performed.” See
Martinez Declaration, supra, at ¶ 14. Amber was
video recording the police with her cell phone at this time.
Amber Oquendo Declaration, supra, at ¶ 39.
situation is frozen at this point, the traffic stop has
lasted about 17 to 22 minutes, the truck's occupants are
getting ready to exit the truck, and the drug dog is ready to
take a run around the car. A smooth exit of the truck would
take only about 2 minutes, and the drug-dog run around the
car would take an additional minute. See Bonas
Deposition, supra, at p. 54.
exit and the sniff would take about 3 minutes if all went
smoothly. That 3 minutes would be a delay in the traffic stop
because the purpose of the stop - to issue a citation - had
been abandoned during this time. Moreover, there was an
earlier delay when Officer Bonas arrived on the scene, talked
to the other officers and allowed his dog to pee. If those 2
minutes are added to the 3 minutes for the exit and sniff,
there is a 5-minute delay in the traffic stop associated with
the drug-dog sniff.
this still does not capture the full extent of the delay,
which must also include the delay by Officer Martinez in
preparing the citation. Despite having the assistance of
three other officers, Officer Martinez failed to complete the
citation. Instead he abandoned the citation to join the other
three officers in approaching the truck for the drug-dog
sniff. Thus, the delay in writing the citation must be added
to the delay caused the sniff itself.
delay in writing the citation can be computed through Officer
Martinez's own testimony. After the sniff was over,
Officer Martinez would have had to write up the citation, a
task that would take him between 5 and 10 minutes. See
Martinez Deposition (Dkt. No. 19-3) at p. 47 (estimating
that writing out a citation may take 10 minutes but might be
shortened to 5 minutes if “I'm writing super
fast”). He then would have to take some time to explain
it to Amber, perhaps 2 minutes. In all, the traffic stop is
prolonged by Officer Martinez's delay in writing the
citation by 7 to 12 minutes. Adding these minutes to the 5
minutes identified earlier (the exit and sniff delay) means
that the traffic stop was prolonged by about 12 to 17
minutes, assuming all would have gone smoothly.
everything did not go smoothly. When Officer Martinez ordered
the occupants of the truck to exit, Joshua observed that
Amber “hesitated” in complying with Officer
Martinez's command. See Joshua Oquendo Declaration
(Dkt. No. 25-4) at ¶ 37. Amber recalls that
“[t]he officers' display of power and force to
remove us from our vehicle and search us and the pickup for
nothing more than a broken taillight was shocking and made me
angry.” See Amber Oquendo Declaration, supra,
at ¶ 35. Amber started yelling at Officer Martinez,
calling him a “fucking pig.” See Martinez
Audiotape at 5:38 to 41. After Amber's initial
hesitation, she “started to get out” but Officer
Martinez opened the door and “physically yanked her out
of the pickup.” Joshua Oquendo Declaration, supra,
at ¶ 38.
of the truck, Amber started walking away “which is what
I thought they wanted, ” she later recalled. See
Amber Oquendo Declaration, supra at ¶ 46. But
“Officer Martinez then physically grabbed and yanked me
and insisted that I go where he directed me.”
Id. at ¶ 47. Amber was screaming, “I
don't give a fuck, what the fuck do you want me fucking
to do, Mother Fucker.” See Martinez Audiotape
Martinez asked Amber if she had any weapons her, and Amber
answered, “Fuck, I wish.” Id. at 6:04.
At this point, Officer Martinez decided to handcuff Amber for
officer safety purposes. See Martinez Declaration,
supra, at ¶ 16.
recalls that at this point, “Officer Martinez shoved me
up against the vehicle, smashing my belly, incurring great
pain, and causing me to yell at him and call him
names.” Id. at ¶ 53. Amber was concerned
because she was six-months pregnant. After being placed in
handcuffs, Amber alleges that Officer Martinez “then
took his hands and, with the open palm of his hand, ran them
up into my crotch and into and under my bra. The way he
touched me appeared and felt very sexual and I expressed that
to him.” Id. at ¶¶ 55-56.
alleges that just before she was handcuffed, Officer Martinez
took her cell phone away. She alleges that “[b]ecause
it was open and recording, the recording was obvious.”
Id. at ¶ 61. Officer Martinez asked if he could
search her cell phone and Amber refused. She alleges that
“he went through my phone anyway. Later when I got my
phone back, the recording had been completely erased.”
Id. at ¶¶ 74-75.
Martinez recalls it much differently. He recalls that
“she did not appear or claim to be recording the
incident.” See Martinez Declaration, supra, at
¶ 17. He explains that “[i]n order to place
handcuffs on Amber, I needed to take the cell phone”
and that he was “forced to pry [it] from out of [her]
hands.” Id. He alleges that when Amber refused
to allow him to search the cell phone he honored her refusal
and did not search the phone. Id. at ¶ 24.
Joshua, he was yelling angry expletives at the police
officers. He is heard on the audio tape yelling, “Hey,
you fucking be careful watching my fucking girl because she
is pregnant, alright Mother Fucker.” See Ransom
Audiotape at 2:31. He recalls that as he tried to exit
the truck, “Officer Ransom suddenly shoved me back into
the truck and told me not to get out.” Oquendo
Declaration (Dkt. No. 25-4) at ¶ 40. Officer Ransom
was concerned “that Joshua was going to intervene with
Officer Martinez so I ordered him to stay in the vehicle.
Ransom Declaration (Dkt. No. 17-4) at ¶ 14.
Martinez states that he conducted a pat-down search of Amber
before placing her in the patrol car. See Martinez
Declaration, supra, at ¶ 19. Officer Ransom states
that he did the same for Joshua. See Ransom Declaration,
supra at ¶ 15.
this initial pat-down search, the officers told Amber and
Joshua that they were only being detained, not arrested.
See Martinez Audiotape at 9:02. Amber and Joshua
were then placed in separate patrol cars after being
subjected to a full search.
alleges that Officer Martinez “shoved and stuffed me
into his car . . . .” See Amber Oquendo
Declaration, supra, at ¶ 66. He then closed the car
door with the windows rolled up. Id. at ¶ 68.
Amber recalls that “the car was not running, there was
no air conditioning and it was extremely hot and
muggy.” Id. at ¶ 69. She
“panicked” and yelled for help, feeling
“that I couldn't breathe.” Id. at
¶ 70. Eventually another officer saw her distress and
rolled down the window so she “could get some
Amber and Joshua in the patrol cars, Officer Bonas ran his
drug-dog around the truck to sniff for drugs. The dog did not
alert on anything. According to Joshua's recollection,
“[i]t took a minute or so for the dog to complete its
run around our car . . . .” Id. at ¶ 82.
Officer Bonas also testified that it takes about a minute to
run a drug-dog around the car. See Bonas Deposition,
supra, at p. 54.
plaintiffs were transported to the jail where, as discussed
above, Officer Martinez completed the citation for a broken
tail light and gave the citation to Amber. The officers
booked Amber and Joshua on charges of ...