Flora v. Sw. Iowa Narcotics Enforcement Task Force (292 F. Supp. 3d 875, 2018)

JAMES E. GRITZNER, Senior Judge This matter comes before the Court on a Motion for Summary Judgment (the Motion) pursuant to Federal Rule of Civil Procedure 56 filed by Defendants Southwest Iowa Narcotics Enforcement Task Force (Task Force), Pottawattamie County Deputy Sheriff Brian Miller (Miller), Assistant Pottawattamie County Attorney Shelly Sedlak-Sudmann (Sudmann), and the Pottawattamie County Attorney's Office (PCAO) (collectively, Defendants). Plaintiff Phillip Anthony Flora (Flora or Plaintiff) resists the motion. The Court held a hearing on the Motion on October 6, 2017. Attorneys Alex Grasso and Michelle Rodemyer were present for Defendants, and attorneys Glen Downey and Nathan Mundy were present for Flora. The matter is fully submitted and ready for disposition.

I. BACKGROUND

A. The Traffic Stop

Flora's action, which comprises five claims under 42 U.S.C. § 1983 and a supplemental state law claim for conversion, stems from a traffic stop that occurred shortly before 2:00 p.m. on August 27, 2015. Flora was driving a Toyota Camry with Tennessee license plates in the westbound lane of Interstate 80 outside Council Bluffs, Iowa. Flora alleges that he had set the cruise control to 70 miles-per-hour-the posted speed limit on that stretch of the interstate-when he was observed by Miller. Miller was parked in his patrol car, facing westbound traffic, at the same time and in the same area as Flora when Flora passed him. In addition to serving as a Pottawattamie County Deputy Sheriff, Miller is a trained drug interdiction officer, a K-9 handler, and a member of the Task Force. Miller activated his emergency lights and initiated a stop of Flora. Flora alleges that Miller's speed radar equipment was not engaged at any point during his pursuit and stop of Flora and, in fact, a radar reading does not appear in Miller's unredacted patrol car video.

Miller approached Flora's passenger side window and informed him that he had been traveling 74 miles-per-hour. Miller requested Flora's driver's license, registration, and proof of insurance. Miller began to question Flora about his occupation and travel itinerary. Flora replied that he worked in information technology and had flown into Cedar Rapids, Iowa the day prior. Flora stated that he was planning on meeting a client "off the freeway" in Omaha, Nebraska, yet did not know which exit to take and would call his client when he got close. Defs' SUF ¶ 20, ECF No. 22-1; Pl's RSUF ¶ 20, ECF No. 70-1. Flora stated for a second time that he did not know his intended exit, though he was less than ten minutes from the Omaha area.

Within minutes of the initial stop, Miller returned to his patrol car to review the documents that Flora had provided to him. Miller observed that Flora had rented the vehicle on August 27, 2015 at 8:49 a.m. in Cedar Rapids, and the vehicle needed to be returned in Huntington Beach, California on August 29, 2015 at 9:00 a.m., with the total cost of the rental being $1,535.90. Miller checked Flora's information and vehicle on the National Crime Information Center (NCIC). Miller completed and printed a traffic warning memorandum for Flora. Miller spent between seven and seven and one-half minutes reviewing Flora's documents and printing the warning before returning to Flora's vehicle. Upon returning to Flora's vehicle, Miller did not return Flora's paperwork and warning memorandum, but instead asked if Flora had anything illegal in his car, which Flora denied. Miller informed Flora, "I have a narcotics dog, I'm going to take him around your car real quick." Pl's App. 106, ECF No. 70-3 (Unredacted Miller Patrol Car Video 14:00:10-14:00:20). Miller asked Flora if he had been "back to Iowa before," to which Flora replied that he had been once before, "maybe a year ago." Pl's SAF ¶ 10, ECF No. 70-2; Defs' RSAF ¶ 10, ECF No. 73; Pl's App. 106, ECF No. 70-3 (Unredacted Miller Patrol Car Video 14:00:23-14:00:33).

Before running his drug dog, Francesco, around Flora's rental car, Miller instructed Flora to exit the vehicle. Flora exited the vehicle without objection. Miller informed Flora, "I'm going to pat you down here real quick," to which Flora responded "Yeah," and Miller completed the pat down. Pl's App. 106, ECF No. 70-3 (Unredacted Miller Patrol Car Video 14:00:40-14:00:47). No weapons or contraband were found on Flora's person. Miller commented, "We just get a lot of stuff being moved around, this is a major interstate," to which Flora responded, in audible part, "Yeah, no problem." Pl's App. 106, ECF No. 70-3 (Unredacted Miller Patrol Car Video 14:00:47-14:00:51). Miller again stated, "I'm going to run my dog around your car real quick." Pl's App. 106, ECF No. 70-3 (Unredacted Miller Patrol Car Video 14:00:51-14:00:54). Miller asked Flora about his customer, and the two briefly conversed about Flora's business. For a third time, Miller informed Flora that he was going to run Francesco around Flora's car, stating "Just stay right there and I'm going to move him around." Pl's App. 106, ECF No. 70-3 (Unredacted Miller Patrol Car Video 14:01:15-14:01:18). Flora at no point objected to Miller performing the dog sniff. Miller then walked Francesco along Flora's car. Francesco alerted by sitting outside the rental car's trunk. Flora acknowledges that Francesco alerted but alleges that Miller triggered the alert by gesticulating wildly and pulling something from behind his back to show Francesco when the dog approached the rear bumper. Miller's unredacted patrol car video shows that Miller looped Francesco twice in a circle around his body, that Miller moved his arms in an ambiguous fashion as he walked Francesco counterclockwise around Flora's rental car, and that, after Francesco sat behind the car's trunk, Miller reached behind his back and presented something to the dog. Pl's App. 106, ECF No. 70-3 (Unredacted Miller Patrol Car Video 14:01:35-14:02:05). The trunk was later revealed to be empty.

Miller allowed Flora to get back into his vehicle and placed Francesco in his patrol car. Miller retrieved Flora's documents and warning memorandum and returned to Flora's vehicle. Flora alleges that, for a second time, Miller asked if he had anything illegal in his car, which Flora denied. Miller then handed Flora his documents and requested Flora's consent to search the vehicle. Flora refused to consent to the interior search. Miller informed Flora that Francesco had alerted to drugs and that he had probable cause to search Flora's vehicle. Flora exited the vehicle, and Miller began his interior search.

After Miller began searching the passenger compartment, he asked Flora if there was a large amount of cash in the car. Flora acknowledged there was a large amount of cash in the backseat. Flora alleges that he told Miller the cash would be used to purchase a customer list from his Omaha client. Miller's search revealed $120,090 in U.S. currency, bundled together with rubber bands, packaged in vacuum-sealed bags, wrapped in several grocery bags, and placed inside an Igloo-brand cooler. Flora alleges that the roadside search revealed no contraband, and Miller's incident report does not indicate such a discovery.

B. Flora's Arrest

After locating the currency, Miller requested backup from Pottawattamie County Deputy Sheriff Eric Shea, who arrived on the scene at approximately 2:10 p.m. Miller then returned to his patrol car and telephoned Sudmann. Sudmann prosecutes civil asset forfeiture cases in Pottawattamie County and provides legal advice to officers in the field on civil forfeiture. Miller told Sudmann that Flora was driving a rental car that cost in excess of $1500 for a two-day trip from Cedar Rapids to Huntington Beach. Miller relayed that he had located a large amount of cash in Flora's rental car, which he believed was packaged as if it was drug related, though Flora was adamant that the money was related to his business and otherwise refused to answer questions about the cash. Miller also told Sudmann that Flora said he was meeting a client off the interstate in Omaha, that Miller's drug dog alerted, and that Flora had refused to consent to a search of his car. Pl's App. 106, ECF No. 70-3 (Unredacted Miller Patrol Car Video 14:27:50-14:30:20). Sudmann advised Miller that he could seize Flora's cash and vehicle and to transport them to the Pottawattamie County Sheriff's Office (PCSO).

After the call with Sudmann, Miller advised Flora that he was "detaining Flora and Flora's vehicle for an expanded search of the vehicle." Defs' SUF ¶ 37, ECF No. 22-1; Pl's RSUF ¶ 37, ECF No. 70-1. Miller then read Flora his Miranda rights. Flora refused to answer any questions and requested an attorney. Miller instructed Flora to wait with Deputy Shea while Miller again telephoned Sudmann.

C. Seizure of Flora's Cash

At approximately 2:36 p.m., Task Force Officers Ken McClure and Bob Christensen arrived at the scene. Together, the officers transported Flora and Flora's vehicle to the PCSO. There, the officers conducted a more thorough search of Flora's car. Miller stated that, during this search, he found a small amount of a green, leafy substance, which tested positive for marijuana in a field-testing kit before he threw the test kit away. Miller stated that he also disposed of the substance tested by the kit. Flora alleges that no photographs were taken of the marijuana or positive test kit, and the record contains no photographs of the kit or the supposed contraband. After Flora refused to answer additional questions about the packaged cash, Miller determined that Flora was engaged in criminal activity and that the seized money was forfeitable, and Flora was given a "Notice of Seizure of Property for Forfeiture Under Iowa Law." Defs' SUF ¶¶ 48-49, ECF No. 22-1; Pl's RSUF ¶ 49, ECF No. 70-1. Flora alleges that no marijuana or other illegal substance was ever in his rental vehicle.

The Task Force is an interdepartmental agency made up of individuals from various law enforcement agencies in southwest Iowa, including the Council Bluffs Police Department and the Pottawattamie County Sheriff's Department. The Task Force conducts drug law investigations, enforcement, and prosecution efforts. The Task Force is the agency responsible for conducting civil asset forfeiture investigations, including deposits and distributions. Decisions on whether to pursue civil forfeiture are made jointly by the Task Force Board of Directors and the county attorney responsible for prosecuting the forfeiture case. In the event of a successful prosecution of a forfeiture action initiated by a Task Force member, the initial distribution is as follows: 10% to the State of Iowa, 20% to the county attorney, and the balance retained by the Task Force. A secondary distribution schedule is followed with respect to the balance retained by the Task Force if, at any time, the Task Force Unit Supervisor determines that the forfeited funds available to the Task Force become "excessive": 60% of the Task Force balance to the Council Bluffs Police Department, 20% to the Pottawattamie County Sheriff's Department, 10% to the Mills County Sheriff's Department, and 10% to the Department of Narcotics Enforcement. Flora alleges that the PCAO has a drug forfeiture fund with a balance that can exceed $1 million, which is used to pay for, inter alia, office products and equipment, credit card and cell phone bills, attorney travel and training, and CLE registration fees.

D. The Civil Forfeiture Complaint

On September 3 and 4, 2015, respectively, Flora filed a demand for a probable cause hearing and Sudmann filed an In Rem Forfeiture Complaint in the Iowa District Court for Pottawattamie County, pursuant to Iowa Code § 809A. Meanwhile, on September 24, 2015, the U.S. District Court for the Central District of California issued a Writ of Execution against Flora pursuant to a $148,310 unsatisfied judgment the Federal Trade Commission (FTC) obtained against Flora for violating the Federal Trade Commission Act (FTCA). Sudmann filed a motion to determine the disposition of Flora's cash based on the federal writ. The Pottawattamie County District Court interpreted Sudmann's motion as a motion to dismiss the forfeiture complaint. There was no final adjudication on the merits of the In Rem action.

Pursuant to its exclusive jurisdiction under Iowa Code § 809A.7, the Pottawattamie County District Court dismissed the forfeiture action and directed that Flora's cash be returned to him no later than October 23, 2015, in the presence of U.S. Marshals. On October 20, 2015, U.S. Marshals served the FTC's writ on the Task Force. Task Force officers Christensen and Bob Brietzke met U.S. Marshals at the U.S. Bank in Council Bluffs where the money was located and delivered a cashier's check made payable to the U.S. Treasury in the amount of $120,090. Flora alleges that Sudmann coordinated with FTC officials to execute on the funds before Flora could reacquire his cash. On January 1, 2016, Flora filed an affidavit in the U.S. District Court for the Central District of California, formally waiving his right to request a hearing on, or claim an exemption to, the FTC's execution on his money and waiving any objection to his counsel satisfying an attorney's lien held against the money.

E. Section 1983 Lawsuit

Flora filed this action alleging six claims against Defendants. Flora's action comprises five claims under 42 U.S.C. § 1983 and a supplemental state law claim for conversion. Count I alleges that Miller violated Flora's Fourth Amendment rights by unreasonably seizing Flora and searching Flora's car. Count II alleges that Miller, Sudmann, and the PCAO violated Flora's Fourth Amendment rights by falsely arresting Flora. Count III alleges that Defendants violated Flora's Fourth Amendment rights by unlawfully seizing $120,090 in U.S. currency from Flora. Count IV alleges that Defendants violated Flora's due process rights based on improper financial motivation in seizing Flora's property for civil forfeiture. Count V alleges a facial due process challenge against Iowa Code § 809A.17, a provision of Iowa's civil forfeiture law that allows for forfeiture share agreements between law enforcement and county attorneys. Count VI alleges that Defendants are liable for conversion for failing to return Flora's $120,090 pursuant to a court order. Flora seeks compensatory damages against all Defendants, punitive damages against Miller and Sudmann, and injunctive relief. Defendants move for summary judgment on all claims.

II. DISCUSSION

A. Standard for the Motion for Summary Judgment

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The movant 'bears the initial responsibility of informing the district court of the basis for its motion,' and must identify 'those portions of [the record] ... which it believes demonstrate the absence of a genuine issue of material fact.' " Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (alterations in original) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). If the movant makes such a showing, to avoid summary judgment the nonmovant must "set out 'specific facts showing that there is a genuine issue for trial.' " Id. (quoting Celotex, 477 U.S. at 324, 106 S.Ct. 2548 ). The Court views the facts presented on summary judgment in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, a genuine issue for trial requires more than "some metaphysical doubt as to the material facts." Torgerson, 643 F.3d at 1042 (quoting Matsushita, 475 U.S. at 586, 106 S.Ct. 1348 ).

B. Qualified Immunity Standard

"Qualified immunity shields a government official from liability and the burdens of litigation unless the official's conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known." Wright v. United States, 813 F.3d 689, 695 (8th Cir. 2015). Determining whether a government official is entitled to qualified immunity involves a two-step inquiry: "(1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right; and (2) whether that right was clearly established at the time of the defendant's alleged misconduct." Id. (citing Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). The official is entitled to qualified immunity "unless the answer to both of these questions is yes." Burton v. St. Louis Bd. of Police Comm'rs, 731 F.3d 784, 791 (8th Cir. 2013) (citation and internal quotation marks omitted). The Court can "exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson, 555 U.S. at 236, 129 S.Ct. 808.

"Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law." Blazek v. City of Iowa City, 761 F.3d 920, 922 (2014) (quoting Stanton v. Sims, 571 U.S. 3, 134 S.Ct. 3, 5, 187 L.Ed.2d 341 (2013) ). "For a right to be clearly established, '[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.' " Wright, 813 F.3d at 695 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ). "In other words, 'existing precedent must have placed the statutory or constitutional question' confronted by the official 'beyond debate.' " Plumhoff v. Rickard, --- U.S. ----, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ). A clearly established right can be shown through " 'cases of controlling authority in the[ ] jurisdiction at the time of the incident' or through a 'consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.' " Wright, 813 F.3d at 695 (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) ). The very action at issue need not have previously been held unlawful; rather, "[t]he pertinent inquiry is whether the state of the law at the time gave the official 'fair warning' that such conduct was unlawful in the situation he confronted." Id. (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ).

Because qualified immunity provides immunity from suit, this Court must address it as an initial matter. See Pearson, 555 U.S. at 232, 129 S.Ct. 808 ("[W]e repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation." (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam) ) ). But there are situations where factual disputes preclude an early determination of qualified immunity. "To avoid summary judgment based on qualified immunity, [Plaintiff] must offer sufficient evidence to show a genuine issue of material fact about whether a reasonable officer would have been on notice that the officer's conduct violated a clearly established right." Wright, 813 F.3d at 695. Defendants are entitled to qualified immunity if, taking the facts in the light most favorable to Plaintiff, the Court finds "there are no material issues of fact and [Defendants'] actions were objectively reasonable in light of the law and the information [they] possessed at the time." Engleman v. Murray, 546 F.3d 944, 948 (8th Cir. 2008).

C. Count I: Unreasonable Search and Seizure Claim

Count I alleges that Miller is liable under § 1983 for violating Flora's Fourth Amendment right against unreasonable search and seizure with respect to the seizure of Flora and search of Flora's car. Flora alleges that each of Miller's traffic stop, extension of the traffic stop, and search of Flora's rental car violated his Fourth Amendment rights. Defendants argue that Miller is entitled to summary judgment on Count I because the traffic stop was justified by probable cause or reasonable suspicion, the extension of the traffic stop was either not unreasonably prolonged or justified by consent or reasonable suspicion, and the search was justified by probable cause. Alternatively, Defendants argue that Miller is entitled to qualified immunity for each of the traffic stop, the extension of the traffic stop, and the search of Flora's car.

1. Unreasonable Seizure: The Initiation of the Traffic Stop

Flora alleges that Miller's traffic stop violated his Fourth Amendment rights because Miller lacked probable cause to stop him. Flora alleges that he was not speeding before he was pulled over. Defendants argue that Miller had probable cause or reasonable suspicion to initiate the traffic stop because Miller clocked Flora at 4 miles-per-hour over the posted speed limit, and regardless, he is entitled to qualified immunity.

As noted, the Court has discretion as to which step of the qualified immunity inquiry to address first. Pearson, 555 U.S. at 236, 129 S.Ct. 808. The Court begins its inquiry by considering whether Miller's traffic stop violated clearly established law at the time of the traffic stop.

The Fourth Amendment, as applied to the states through the Fourteenth Amendment, protects the right of people to be secure "against unreasonable searches and seizures." U.S. Const. amend IV. "A traffic stop constitutes a seizure under the Fourth Amendment." United States v. $45,000.00 in U.S. Currency, 749 F.3d 709, 715 (8th Cir. 2014) (quoting United States v. Peralez, 526 F.3d 1115, 1119 (8th Cir. 2008) ). "[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Id. (quoting Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ). "Any traffic violation, however minor, provides probable cause for a traffic stop." Id. (quoting United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) (en banc) ). Whether an officer's traffic stop is pretextual is irrelevant. Whren, 517 U.S. at 812-13, 116 S.Ct. 1769. "[T]he critical inquiry in a probable-cause determination in the traffic-stop context is what the stopping officer observed before pulling over a motorist." $45,000.00 in U.S. Currency, 749 F.3d at 715.

Officers need only reasonable suspicion to justify a traffic stop. United States v. Gaffney, 789 F.3d 866, 868 (8th Cir. 2015). "Reasonable suspicion exists when an officer has a 'particularized and objective basis for suspecting the particular person stopped of breaking the law.' " Id. (quoting Heien v. North Carolina, --- U.S. ----, 135 S.Ct. 530, 536, 190 L.Ed.2d 475 (2014) ). The determination of whether reasonable suspicion existed looks at "what the officer reasonably knew at the time," id. (citation omitted), and "in the light of the officer['s] 'experience and specialized training,' " United States v. Yang, 345 F.3d 650, 655 (8th Cir. 2003) (citation omitted). "Even an officer's incomplete initial observations may give reasonable suspicion for a traffic stop." Gaffney, 789 F.3d at 868 (citation omitted). "Mistakes of law or fact, if objectively reasonable, may still justify a valid stop." Id. (citation omitted).

In Gaffney, which was decided shortly before the events giving rise to this lawsuit, the Eighth Circuit noted that it "ha[d] not resolved whether an officer's visual estimate of speed alone can furnish either probable cause or reasonable suspicion to stop a vehicle." Id. (emphasis added). Thus, in making the reasonableness determination, the court considered "whether the totality of the circumstances at the time of the stop supports the reasonableness of the officer's belief that Gaffney was speeding at all. " Id. The court answered that question in the affirmative, after considering the officer's familiarity with the area, the officer's belief that the driver was speeding, an admission by the driver that he braked hard immediately after the officer turned to follow him, and evidence that the driver had been traveling 0.8 miles-per-hour over the speed limit. Id. at 868-70. The court reasoned that despite the officer's inexperience issuing speeding citations, lack of use of speed radar equipment, late night timing of the stop, and speed estimate that was 15 to 20 miles-per-hour greater than the driver's actual speed, the totality of the circumstances at the time of the stop supported the reasonableness of the officer's belief that the defendant was speeding "at all." Id. at 869-72.

Flora alleges that he had engaged cruise control at 70 miles-per-hour, the speed limit through the relevant section of Interstate 80, at the time Miller observed and stopped him. Flora submits that Miller's speed radar equipment was never engaged during his pursuit of Flora, and in fact, Miller's patrol car video does not show a radar reading for Flora's car. Flora also disputes Miller's contention that he clocked Flora before initiating his radar recording equipment. However, Flora acknowledges that Miller observed his car while Miller was parked and facing westbound traffic. At no point in either his brief or record materials does Flora contest the notion that Miller, at minimum, visually estimated Flora's speed; he merely contests Miller's use of equipment.

Viewing the facts in the light most favorable to Flora as the Court must, Miller's traffic stop of Flora did not violate clearly established law. Miller, at the least, visually estimated Flora to be traveling 4 miles-per-hour over the speed limit. Additional factors bolstered Miller's visual estimate. The parties agree that Miller was facing westbound traffic at the same time and in the same area as Flora when Flora passed him, and Miller's unredacted patrol car video shows that the weather was clear at the time of the stop. Moreover, the record contains no evidence regarding the proper and accurate operation of the cruise control in Flora's rental car such that, even if set at 70 miles-per-hour, cruise control would have precluded a greater speed of just a few miles-per-hour. Even if Flora's cruise control had kept Flora's speed within the 70 miles-per-hour posted speed limit, Miller was entitled to make a "reasonable but mistaken judgment[ ]" so long as his determination that Flora was speeding was not "plainly incompetent." See Blazek, 761 F.3d at 922 (quoting Stanton, 134 S.Ct. at 5 ). Miller's visual speed estimate and the speed at which Flora admitted traveling were off by a mere 4 miles-per-hour-far less than the officer's 15 to 20 miles-per-hour speed estimate disparity in Gaffney. 789 F.3d 866, 868. The Court concludes that under the totality of the circumstances, Miller's traffic stop based on a visual estimate of speed no more than 4 miles-per-hour greater than the speed Flora admitted traveling, with no external circumstances compromising Miller's visual estimate, did not violate clearly established law. Thus, with respect to the traffic stop, Miller is entitled to qualified immunity.

2. Unreasonable Seizure: Extension of the Traffic Stop

Flora alleges that Miller's extension of the stop violated his Fourth Amendment right against unreasonable seizures. Flora argues that Miller prolonged the stop without Flora's consent or reasonable suspicion, and in so doing, violated his clearly established Fourth Amendment rights. Defendants argue that Miller did not violate Flora's Fourth Amendment rights with respect to the extension of the stop because the stop was not unreasonably prolonged, Flora consented to the extended stop, and Miller had reasonable suspicion that Flora was engaged in criminal activity. Alternatively, Defendants contend that Miller is entitled to qualified immunity for the allegedly prolonged stop.

Here, the Court begins its qualified immunity inquiry by first considering whether Miller violated Flora's Fourth Amendment rights. "A seizure for a traffic violation justifies a police investigation of that violation." Rodriguez v. United States, --- U.S. ----, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015). "Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission'-to address the traffic violation that warranted the stop and attend to related safety concerns." Id. (internal citations omitted) (quoting Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) ). The traffic stop may "last no longer than is necessary to effectuate th[at] purpose." Id. (alteration in original) (citation omitted). "Authority for the seizure thus ends when tasks tied to the traffic infraction are-or reasonably should have been-completed." Id.

"Beyond determining whether to issue a traffic ticket, an officer's mission includes 'ordinary inquiries incident to [the traffic] stop.' " Id. at 1615 (alteration in original) (quoting Caballes, 543 U.S. at 408, 125 S.Ct. 834 ). Such inquiries involve checking the driver's license, determining the existence of outstanding warrants, and inspecting the automobile's registration and proof of insurance-"checks [that] serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly." Id. It is also routine for officers to ask the vehicle's occupants about their "destination, route, and purpose." Peralez, 526 F.3d at 1119 (citation omitted).

"A dog sniff, by contrast, is a measure aimed at 'detect[ing] evidence of ordinary criminal wrongdoing.' " Rodriguez, 135 S.Ct. at 1615 (alteration in original) (citation omitted). "The critical question ... is not whether the dog sniff occurs before or after the officer issues a ticket, ... but whether conducting the sniff 'prolongs'-i.e. , adds time to-'the stop.' " Id. at 1616. In Rodriguez, the Court determined that because conducting a dog sniff "exceed[ed] the time needed to handle the matter for which the stop was made," the stop constituted an unreasonable seizure. Id. at 1612. Thus, an officer may not, in the context of a moving violation, conduct a dog sniff that "prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual," id. at 1615, or "unless the continued encounter is consensual," United States v. Munoz, 590 F.3d 916, 921 (8th Cir. 2010) (citation omitted).

Upon stopping Flora, Miller informed him that the stop related to Flora's driving over the speed limit. Miller questioned Flora about his occupation and travel itinerary. These inquiries were routine and permissible. See Rodriguez, 135 S.Ct. at 1615 ; Peralez, 526 F.3d at 1119. Following this line of questioning, Miller returned to his patrol car and spent between seven and seven and one-half minutes reviewing Flora's documents, checking Flora's information and vehicle on NCIC, and preparing a warning memorandum-which again, were routine and permissible actions. See Rodriguez, 135 S.Ct. at 1615 ; Peralez, 526 F.3d at 1119. However, Miller then ran his drug dog around Flora's car. This inquiry was unrelated to the purpose of resolving a moving violation and resulted in the traffic stop being longer than was necessary to effectuate its purpose, given that Miller had already completed Flora's warning memorandum for the moving violation. Thus, Miller's extension of the stop to conduct a dog sniff constituted an unreasonable seizure unless it was consensual or justified by reasonable suspicion.

Defendants argue that the prolonged stop was consensual, and thus, did not violate Flora's Fourth Amendment rights. An officer may prolong a traffic stop if the encounter becomes consensual. United States v. Garcia, 613 F.3d 749, 753 (8th Cir. 2010) ("If the encounter becomes consensual it is not a seizure, the Fourth Amendment is not implicated, and the officer is not prohibited from asking questions unrelated to the traffic stop or seeking consent to search the vehicle." (citation and internal quotation marks omitted) ). "Whether an encounter is consensual depends on the facts of the case." Munoz, 590 F.3d at 921. "A person is seized within the meaning of the Fourth Amendment when, under the totality of the circumstances, a reasonable person would have believed that he was not free to leave." Id. (citation and internal quotation marks omitted). "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." United States v. Carpenter, 462 F.3d 981, 985 (8th Cir. 2006) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ). "Circumstances of a seizure may include 'the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Munoz, 590 F.3d at 921 (citation omitted). "Conversely, if a reasonable person feels free to 'disregard the police and go about his business,' the encounter is consensual." Id. (quoting Bostick, 501 U.S. at 434, 111 S.Ct. 2382 ).

Miller did not ask, but instead informed, Flora that he was going to "take [Francesco] around your car real quick," a statement which elicited no response from Flora. Pl's App. 106, ECF No. 70-3 (Unredacted Miller Patrol Car Video 14:00:10-14:00:20). Miller then instructed Flora to exit the vehicle, and Flora exited without objection. Miller informed Flora that he was going to "pat you down here real quick," Flora responded, "Yeah," and Miller completed the pat down. Pl's App. 106, ECF No. 70-3 (Unredacted Miller Patrol Car Video 14:00:40-14:00:47). Miller then commented, "We just get a lot of stuff being moved around, this is a major interstate," to which Flora replied, "Yeah, no problem." Pl's App. 106, ECF No. 70-3 (Unredacted Miller Patrol Car Video 14:00:47-14:00:51). Miller informed Flora two more times that he was going to run his drug dog around Flora's car without Flora objecting.

During the prolonged stop, Miller issued multiple instructions or declarations that were not framed as requests. There is "a constitutionally significant distinction between an official command and a request that may be refused." United States v. Grant, 696 F.3d 780, 785 (8th Cir. 2012) (quoting United States v. Vera, 457 F.3d 831, 835 (8th Cir. 2006) ). However, an officer's declaratory statements, "when taken in context," are not necessarily "the sort of 'physical force or show of authority' that would have converted the encounter into a seizure." United States v. Valle Cruz, 452 F.3d 698, 701, 706 (8th Cir. 2006) (quoting Bostick, 501 U.S. at 434, 111 S.Ct. 2382 ) (holding that an officer repeatedly telling a suspect to "sit tight" in anticipation of and during a dog sniff, despite the suspect saying "no" and that "she had done nothing wrong," was not a "command," "edict," or "language ... indicating that compliance with [his] request might be compelled" (citations omitted) ). Miller at no point exhibited threatening behavior, and Miller did not display a weapon. Nor did Miller's tone suggest that compliance was compelled. Miller's statements did not consist only of instructions, as Miller also inquired about Flora's last visit to Iowa and the nature of Flora's business. Taken in context, Miller's declarations regarding the dog sniff put Flora on notice of what Miller intended to do during their prolonged encounter, and a reasonable person in Flora's position would not have understood them to be commands amounting to a show of authority. See Grant, 696 F.3d at 785. Moreover, after complying with Miller's instruction to wait on the roadside while Miller conducted the dog sniff, Flora refused to consent to Miller's request to search his vehicle. This suggests that Flora was aware that he could refuse to consent to the dog sniff as well, as "a citizen's refusal of consent to search tends to show that a reasonable person would know he is not required to comply with an officer's requests .... [and] that it was possible for him to say 'no.' " Id. at 786.

Although Flora did not unambiguously consent to the dog sniff, the Court must consider whether the encounter was consensual based on the "totality of the circumstances." See Munoz, 590 F.3d at 921. Though a close question, the Court concludes that a reasonable person in Flora's position would have believed that he was free to leave at this stage of the encounter, given Miller's non-threatening behavior, Miller's repeated notices of his intent to conduct a dog sniff and Flora's repeated failure to object, and Flora's use of consensual language as "no problem." See Garcia, 613 F.3d at 753 (holding that defendant's "behavior indicated he felt free to leave," following an officer's question unrelated to a traffic stop, when defendant leaned into officer and answered the officer's question). Thus, Miller's prolongation of the encounter to conduct a dog sniff was consensual. Because prolonged stops are lawful if consensual, Miller's prolonged stop did not violate Flora's Fourth Amendment rights. The Court need not consider whether Miller had reasonable suspicion to prolong the stop. See United States v. Santos-Garcia, 313 F.3d 1073, 1078 (8th Cir. 2002) (holding that if an encounter is consensual, then even without reasonable suspicion, the officer may make inquiries unrelated to the stop).

Even were this Court to find that the prolonged encounter was not consensual, Miller would nonetheless be entitled to qualified immunity. The Eighth Circuit has not clearly established that officers must frame all statements as requests which can be refused, when the surrounding context is non-threatening and cooperative. See Valle Cruz, 452 F.3d at 706. Moreover, Miller was entitled to make "reasonable but mistaken judgments." See Blazek, 761 F.3d at 922 (quoting Stanton, 134 S.Ct. at 5 ). Miller's belief that the prolonged encounter was consensual was reasonable, given Flora's cooperation, his use of language as "no problem," and his failure to object to the dog sniff despite three opportunities to do so.

3. Unreasonable Search: Miller's Search of Flora's Car

Flora alleges that Miller's search of his vehicle, including its containers, the trunk, and Flora's wallet, without Flora's consent, was unreasonable and violated his Fourth Amendment rights. Defendants argue that Miller had probable cause for the search because Francesco, a trained and certified drug dog, alerted to the presence of narcotics in the vehicle. Flora counters that Francesco's alert was not reliable because Miller cued Francesco's alert and because of Francesco's record of false alerts.

Here, the Court begins its qualified immunity inquiry by first considering whether Miller's search of the car violated Flora's Fourth Amendment rights. Pursuant to the automobile exception to the warrant requirement, a police officer has probable cause to search a vehicle when the totality of circumstances warrants an officer of reasonable caution in the belief that contraband or evidence of a crime is present. Florida v. Harris, 568 U.S. 237, 243-44, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) ; United States v. Gonzalez, 781 F.3d 422, 429 (8th Cir. 2015). "If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search," United States v. Murillo-Salgado, 854 F.3d 407, 418 (8th Cir. 2017) (quoting United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) ), "including a passenger's personal belongings," id. (citing Wyoming v. Houghton, 526 U.S. 295, 302, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) ). The alert of a reliable drug detection dog can by itself generate probable cause to search an automobile. Harris, 568 U.S. at 246-47, 133 S.Ct. 1050. "With regard to the reliability of drug dogs, '[t]he better measure of a dog's reliability ... comes away from the field, in controlled testing environments,' " and "[f]or that reason, evidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert." United States v. Gunnell, 775 F.3d 1079, 1085 (8th Cir. 2015) (first and second alterations in original) (quoting Harris, 568 U.S. at 246, 133 S.Ct. 1050 ). "Contrary evidence 'that may detract from the reliability of the dog's performance properly goes to the 'credibility' of the dog.' " United States v. Winters, 600 F.3d 963, 967 (8th Cir. 2010) (quoting United States v. Diaz, 25 F.3d 392, 394 (6th Cir. 1994) ). This Court must inquire "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." Harris, 568 U.S. at 248, 133 S.Ct. 1050.

In Harris, the Supreme Court chided the use of "hit" and "miss" lists for determining drug dog efficacy:

Errors may abound in such records.... Field data ... may not capture a dog's false negatives. Conversely ... if the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden.

Id. at 245, 133 S.Ct. 1050. The Court concluded that "[f]ield data ... may markedly overstate a dog's real false positives," and therefore, "[t]he better measure of a dog's reliability thus comes away from the field, in controlled testing environments." Id. at 246, 133 S.Ct. 1050. The Court established a rebuttable presumption: "If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog's alert provides probable cause to search." Id. at 246-47, 133 S.Ct. 1050. "This presumption may be overcome if a defendant can show, either through cross-examination or introducing his own fact or expert witness, the inadequacy of a certification or training program or that the circumstances surrounding a canine alert undermined the case for probable cause." Gonzalez, 781 F.3d at 429 (citing Harris, 568 U.S. at 246-48, 133 S.Ct. 1050 ). One such circumstances surrounding a drug dog's alert that can undermine the case for probable cause is when "the officer cued the dog (consciously or not)." Harris, 568 U.S. at 247, 133 S.Ct. 1050. In Harris, the Court determined that a drug dog's alert established probable cause, given that the dog had completed a 120-hour training program in narcotics detection two years earlier and the dog and its handler were subject to continuing training, and given that there were no special circumstances that gave the Court reason to discount the dog's alert to the vehicle. Id. at 248-50, 133 S.Ct. 1050.

In the present case, Defendants argue that Francesco was a reliable drug dog because he was a properly certified K-9 at the time of the traffic stop. Defendants have presented evidence that Francesco was subject to continuous training since his initial certification in December 2008, including annual re-certifications since January 2010. Flora has not challenged these certifications. However, the Court must also consider the circumstances surrounding Francesco's alert. Id. at 247, 250, 133 S.Ct. 1050. Flora alleges that the circumstances surrounding Francesco's alert give this Court reason to discount the alert as a basis for probable cause because Miller cued Francesco's alert to Flora's vehicle. Miller's patrol car video shows that Miller moved his arms in an ambiguous fashion while leading Francesco counterclockwise around Flora's vehicle. Additionally, Miller reached behind his back and presented something to Francesco after Francesco sat behind the car's trunk. Pl's App. 106, ECF No. 70-3 (Unredacted Miller Patrol Car Video 14:01:35-14:02:05). Officer cueing can undermine the case for probable cause, Harris, 568 U.S. at 247, 133 S.Ct. 1050, and Defendants have presented no evidence to counter Flora's claim that Miller's gestures amounted to cueing. Whether Miller cued Francesco's alert represents a genuine issue of material fact in determining whether Miller had probable cause to search Flora's car. Thus, the Court cannot conclude that Miller's search did not violate Flora's Fourth Amendment rights.

Defendants, at oral argument, asserted that the Harris case should not affect Miller's entitlement to qualified immunity, because the Supreme Court's guidance on handler cueing did not clearly establish a right against searches subsequent to the alert of a cued drug dog. The Supreme Court has clearly stated that, even for otherwise reliable drug dogs, a handler cueing the dog, consciously or not, can undermine the case for probable cause, and thus by implication defeat the justification to conduct a warrantless search of an automobile. Id. Since Harris, the Eighth Circuit has not considered a case involving handler cueing. However, the court has held that circumstances surrounding a drug dog's alert can overcome the rebuttable presumption that an alert provides probable cause to search. See Gonzalez, 781 F.3d at 429. Additionally, in United States v. Simeon, 115 F.Supp.3d 981 (N.D. Iowa 2015), the district court conducted a comprehensive inquiry into "alleged cueing behavior" in determining whether probable cause was undermined, which included consideration of whether the officer allowed the drug dog to "work" independent of the officer's motions, and whether the dog's alert preceded the officer's alleged cueing gestures. Id. at 1001-02 ; see also United States v. Poole, No. CR13-3003-MWB, 2013 WL 1694776, at *14-15 (N.D. Iowa Apr. 18, 2013) (considering alleged cueing by officer in determining the reliability of a drug dog's alert as a basis for probable cause).

On the record currently before this Court, in light of the admonition in Harris that handler cueing can undermine the case for probable cause, as well as the Eighth Circuit's holding that circumstances surrounding an alert can overcome the rebuttable presumption established in Harris , this Court finds that Miller had "fair warning" against conducting a warrantless vehicle search based solely on an alert triggered by handler cueing. See Wright, 813 F.3d at 695 (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034 ). Based on clearly established law at the time Miller conducted his dog sniff of Flora's car, a reasonable officer in the same circumstances would have known that a deliberately cued drug dog did not provide probable cause to search the car. Assessing the facts in the light most favorable to Flora as the Court must, there is a genuine issue of material fact as to whether Miller triggered Francesco's alert and thus fabricated a basis for searching Flora's car in violation of Flora's Fourth Amendment rights, which would not have constituted a "reasonable but mistaken judgment[ ]." See Blazek, 761 F.3d at 922 (quoting Stanton, 134 S.Ct. at 5 ). The Court must conclude on the current motion that Miller is not entitled to qualified immunity with respect to the search of Flora's car.

4. Summary of Motion as to Count I

Because Miller is entitled to qualified immunity with respect to the traffic stop of Flora and did not violate Flora's Fourth Amendment rights in prolonging the stop, Miller is entitled to summary judgment with respect to Flora's claim of unreasonable seizure of his person in Count I. Because genuine issues of material fact remain relating to the circumstances of Francesco's alert, and specifically, whether Miller triggered the alert through handler cueing, Miller is not entitled to summary judgment with respect to the search of Flora's car.

D. Count II: False Arrest Claim

Count II alleges that Miller, Sudmann, and the PCAO are liable under § 1983 for falsely arresting Flora because (1) Flora was detained on the roadside beyond the point necessary to issue a traffic warning, (2) Sudmann aided and encouraged Miller's decision to extend Flora's detention, and (3) the PCAO maintained a practice and policy of instructing officers to detain individuals suspected of possessing large sums of U.S. currency. Defendants argue that (1) Miller's arrest of Flora was either supported by probable cause or Miller was entitled to qualified immunity, (2) Sudmann is entitled to qualified or absolute immunity for her role in Flora's arrest, and (3) the PCAO is not liable because of the absence of individual liability.

1. Miller

Defendants argue that Miller's discovery of $120,090 in U.S. currency and Francesco's alert established probable cause for the arrest. Defendants argue that, regardless, Miller is entitled to qualified immunity, either for his decision to arrest or because of his reliance on Sudmann's legal advice. Flora argues that Miller is not entitled to qualified immunity for relying on the advice of Sudmann because factual issues remain as to whether Miller provided Sudmann with complete information during their phone call.

The Court begins its qualified immunity inquiry here by considering whether Miller violated Flora's Fourth Amendment rights. The Fourth Amendment requires that arrest warrants and warrantless arrests be supported by probable cause. Maryland v. Pringle, 540 U.S. 366, 369-70, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). "Probable cause exists when a police officer has reasonably trustworthy information that is sufficient to lead a person of reasonable caution to believe that the suspect has committed or is committing a crime." Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). Probable cause is assessed under the totality of the circumstances. Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999). In the probable cause analysis, law enforcement officers must receive " 'substantial latitude in interpreting and drawing inferences from factual circumstances,' but such latitude is not without limits." Id. (internal citation omitted) (quoting United States v. Washington, 109 F.3d 459, 465 (8th Cir. 1997) ). "[P]robable cause does not exist when a minimal further investigation would have exonerated the suspect." Id. (internal quotation marks omitted).

The Eighth Circuit has identified direct and circumstantial evidence that supports probable cause that a suspect is engaged in the crime of drug trafficking. One illustrative case is United States v. $141,770.00 in U.S. Currency, 157 F.3d 600 (8th Cir. 1998). In that case, the court determined that there was probable to believe a suspect's money was connected to drug trafficking, given (1) the suspect possessed a large amount of cash, suspiciously packaged in scented fabric softener sheets, and sealed in three layers of zip-lock bags; (2) a drug dog alerted to the seized money; (3) the suspect was driving a camper that had originated in California, a drug-source state, and was returning to California with a large amount of cash after having spent time in the upper Midwest, a drug destination area; and (4) the suspect gave false statements regarding the packaging materials and failed to produce records regarding the source of the money. Id. at 603-04 ; see also United States v. $124,700 in U.S. Currency, 458 F.3d 822, 826 (8th Cir. 2006) (holding that a large sum of cash, concealed in aluminum foil inside a cooler, carried by a suspect who had flown cross-country on a one-way plane ticket, was returning in a rented vehicle, and had given unclear or false statements to officers, and a drug dog's alert established a substantial connection between drug trafficking and cash found in vehicle); United States v. $39,878.00, 80 F.3d 317, 319 (8th Cir. 1996) ("[W]e have recognized that possession of a large amount of cash (here, nearly $40,000) is strong evidence that the cash is connected with drug trafficking.");

United States v. U.S. Currency, in Amount of $150,660.00, 980 F.2d 1200, 1206-07 (8th Cir. 1992) (citing suspect's possession of a large amount of currency wrapped with rubber bands, a drug dog's alert to the currency, and suspect's inconsistent statements concerning the presence of money as evidence supporting probable cause that cash is connected with drug activity).

It is undisputed that, upon searching Flora's car, Miller discovered $120,090 in U.S. currency, bundled together with rubber bands, packaged in vacuum-sealed bags, wrapped in several grocery bags, and placed inside an Igloo-brand cooler. The discovery of $120,090 was more than three times the $40,000 that the Eighth Circuit has deemed "strong evidence that the cash is connected with drug trafficking." $ 39,878.00 in U.S. Currency, 80 F.3d at 319. The suspicious packaging of the cash-bundled with rubber bands, placed in vacuum-sealed bags, wrapped in additional layers, and placed inside a cooler-further supported probable cause that Flora was engaged in drug trafficking. See $124,700 in U.S. Currency, 458 F.3d at 826 ; $141,770.00 in U.S. Currency, 157 F.3d at 603 ; $ 150,660.00 in U.S. Currency, 980 F.2d at 1206. Flora had flown on a one-way ticket to Iowa and planned to return cross-country by rental car to California-a travel itinerary similar to itineraries that the Eighth Circuit has deemed indicia of drug trafficking. See $124,700 in U.S. Currency, 458 F.3d at 826 ; $141,770.00 in U.S. Currency, 157 F.3d at 603. Flora was also unable to identify his intended interstate exit despite being ten minutes from the location where he was to meet his alleged Omaha customer. Even if Francesco's alert is not considered due to the possibility that it was cued, in the aggregate, the amount of the cash, the cash's suspicious packaging, and Flora's vague travel itinerary was sufficient evidence supporting probable cause that Flora was engaged in drug trafficking. Thus, Miller's arrest did not violate Flora's Fourth Amendment right against unreasonable seizures, and Miller is entitled to summary judgment on Count II. Because Miller is not liable for false arrest, the Court does not need to address whether qualified immunity based on advice from counsel applies

2. Sudmann

Defendants argue that Sudmann is entitled to summary judgment on Count II because Sudmann was protected under absolute immunity for giving advice to Miller concerning the initiation of a forfeiture action pursuant to Iowa Code § 809A. Defendants further argue that Sudmann is, at minimum, entitled to qualified immunity because Sudmann advised Miller during an active investigation. Flora responds that Sudmann is not entitled to absolute immunity because her advice to Miller related neither to her role as prosecutor nor to her function as an advocate for the State, and that she is not entitled to qualified immunity because her advice contravened clearly established law.

"Prosecutors are entitled to absolute immunity from civil liability under § 1983 when they are engaged in prosecutorial functions that are intimately associated with the judicial process." Schenk v. Chavis, 461 F.3d 1043, 1046 (8th Cir. 2006) (citation and internal quotation marks omitted). These include deciding which suits to bring, the initiation and pursuit of prosecution, and the presentation of a state's case at trial. Imbler v. Pachtman, 424 U.S. 409, 424-25, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) ; Anderson v. Larson, 327 F.3d 762, 768 (8th Cir. 2003). Even "patently improper" actions connected with a prosecution are immunized. Schenk, 461 F.3d at 1046 (citation omitted). A prosecutor will not be entitled to absolute immunity before there is probable cause to arrest. McGhee v. Pottawattamie Cty., 547 F.3d 922, 929 (8th Cir. 2008) ; see also Burns v. Reed, 500 U.S. 478, 492, 495-96, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) (holding that, although participating in a probable cause hearing entitles a prosecutor to absolute immunity, giving advice to an officer on whether probable cause exists to arrest a suspect does not).

By contrast, a prosecutor is entitled to qualified immunity "when performing actions in an 'investigatory' or 'administrative' capacity." Larson, 327 F.3d at 768 (quoting Imbler, 424 U.S. at 430-31, 96 S.Ct. 984 ). As with officers, qualified immunity shields prosecutors from § 1983 liability "unless their conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known." Id. at 769 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ).

Sudmann's phone call with Miller constituted advice on whether there was probable cause to arrest Flora, which does not entitle Sudmann to absolute immunity for Flora's false arrest claim. See Burns, 500 U.S. at 496, 111 S.Ct. 1934. However, Sudmann's probable cause inquiry was action in an investigatory capacity, and her ultimate advice to Miller that Flora be arrested did not violate Flora's Fourth Amendment rights. Miller informed Sudmann over the phone that he had discovered a large sum of cash, packaged as if it was drug-related, and that his drug dog had alerted. Based upon Miller's depiction of the events to Sudmann, Miller had probable cause to arrest Flora, and therefore Sudmann advising Miller to do so did not violate a clearly established right. Sudmann is thus entitled to qualified immunity and to summary judgment on Count II.

3. The PCAO

Defendants argue that the PCAO is entitled to summary judgment on Count II because a municipality cannot be liable unless there is first individual liability against a municipal actor-and because neither Miller nor Sudmann are liable for false arrest, the PCAO cannot be liable for false arrest. Flora failed to resist the motion for summary judgment as to the PCAO on Count II.

Flora's failure to resist the motion as to Count II against the PCAO is alone grounds to grant the motion. See L.R. 56(b), (c) (stating that a party resisting summary judgment must "respond[ ] to each of the grounds asserted in the motion for summary judgment," and "[i]f no timely resistance to a motion for summary judgment is filed, the motion may be granted without prior notice from the court"). Nonetheless, the PCAO is entitled to summary judgment because the claim fails on the merits.

"A municipality may not be held liable under section 1983 'unless action pursuant to official municipal policy of some nature caused a constitutional tort.' " Seymour v. City of Des Moines, 519 F.3d 790, 800 (8th Cir. 2008) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ). Two basic circumstances warrant Monell liability:

1) where a particular municipal action itself violates federal law, or directs an employee to do so, and 2) where a facially lawful municipal action has led an employee to violate a plaintiff's rights and the municipal action was taken with deliberate indifference as to its known or obvious consequences.

Id. (citations and internal quotation marks omitted). With respect to the first circumstance, "no evidence beyond a statement of the policy and its exercise is necessary to establish § 1983 liability." Moyle v. Anderson, 571 F.3d 814, 818 (8th Cir. 2009). With respect to the second circumstance, municipal liability does not attach "unless individual liability is first found on an underlying substantive claim." Schoettle v. Jefferson Cty., 788 F.3d 855, 862 (8th Cir. 2015). Flora has identified no PCAO policy that itself violates the Fourth Amendment or directs its employees to do so, nor has individual liability been found for false arrest. Therefore, no municipal liability can be attached