TIFFANIE HUPP; R.H., a minor, by and through his next friend, Tiffanie Hupp; CLIFFORD MYERS, Plaintiffs - Appellants,
STATE TROOPER SETH COOK; COLONEL C.R. JAY SMITHERS, Defendants - Appellees, and WEST VIRGINIA STATE POLICE, Defendant.
Argued: April 2, 2019
from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
Chief District Judge. (2:17-cv-00926)
Eric Campbell, CAMPBELL LAW, Denver, Colorado; Justin F.
Marceau, UNIVERSITY OF DENVER, Denver, Colorado, for
Michael Deering Mullins, STEPTOE & JOHNSON PLLC,
Charleston, West Virginia, for Appellees.
Anello, ALDF, Cotati, California, for Appellants.
L. Bailey, STEPTOE & JOHNSON PLLC, Charleston, West
Virginia, for Appellees.
GREGORY, Chief Judge, and KING, Circuit Judge. 
GREGORY, Chief Judge
Tiffanie Hupp was arrested for obstruction when she attempted
to stop a state trooper from shooting her family's dog.
After her husband video-recorded the incident, the state
trooper entered the family's home, without consent and
without a warrant, and seized several of the family's
electronic devices. Hupp, her minor son, and her
father-in-law filed suit against the state trooper, asserting
various violations of the Fourth Amendment under 42 U.S.C.
§ 1983. The district court granted summary judgment to
the state trooper and denied Appellants' motion for
partial summary judgment. Because issues of fact exist, we
affirm the denial of Appellants' partial summary judgment
motion but reverse the grant of summary judgment in Trooper
Seth Cook's favor and remand for trial on each of
a 13-year-old husky-Akita mix, lives with his owner,
Appellant Clifford Myers, in Waverly, West Virginia. Buddy
has been the source of contention between Myers and his
neighbor David Wayne, who lives across the street.
9, 2015, the police were called out in response to a dispute
earlier that day between the two men over the dog. West
Virginia State Troopers Seth Cook and Sean Michael responded
to the call. Trooper Cook was there to provide backup to
Trooper Michael. Upon their arrival, the troopers spoke with
Myers, who was in his front yard drinking a beer. The
troopers then went across the street to speak with the
Waynes. In speaking with the Waynes, Trooper Cook was told of
the "ongoing problem" with Myers over Buddy, that
Buddy was, in their mind, "vicious and had killed
several of their cats and had chased the children." J.A.
302. Trooper Cook was also told that Buddy had chased
Wayne's grandmother back into the house and that
Wayne's grandfather had to take a stick with him when he
checked the mail "to shoo the dog away."
time, Myers had another dog, a black Labrador, on a chain in
his front yard; Buddy was loose in the yard. According to
Myers, Trooper Cook was aware that Buddy was not on a leash.
Trooper Cook testified, however, that he did not see Buddy
when he first went to speak with Myers. While the troopers
spoke with the Waynes, Myers took the Labrador off the chain
and placed the chain on Buddy. Myers later explained that it
was mere happenstance that he switched the dogs; according to
him, it was not because "the black lab was the
friendlier of the two dogs." J.A. 82.
speaking with the Waynes, the troopers returned to
Myers's house. Trooper Michael asked Myers for his
identification. Myers asked his daughter, Lindsey, to
retrieve it for him. As Lindsey headed back toward the house
to retrieve the ID, Trooper Cook followed her into
Myers's front yard. Trooper Cook testified that he
followed Lindsey "because of the people gathering in the
door [of Myers's home] and just a general, again,
situation awareness." J.A. 208. At that point, Myers had
six of his family members at his house, and Trooper Cook
wanted to "have a little bit of personal contact with
them to, again, determine their nature" and determine if
"there were potential other people that [he] needed to
be paying closer attention to." J.A. 56, 207-08. Trooper
Cook also testified that, due to the slope of Myers's
front yard, he wanted to "get closer to where [he] could
see better than from down at the road in the driveway looking
up at a position of tactical advantage over [him]." J.A.
evidence captured much, but not all, of what happened
next. A dog barked as Trooper Cook walked into
Myers's yard. J.A. 610 at 1:17-1:20. Trooper Cook, who
was trained to identify and "handle" aggressive
dogs, took a few steps back after seeing Buddy. J.A. 189, 610
at 1:20-1:22. He then pulled his gun out and, holding it with
his left hand, pointed it at Buddy. J.A. 610 at 1:23-1:26.
Hupp, Myers's 113-pound daughter-in-law, ran down the
front yard from near the house toward Trooper Cook.
Id. at 1:26-1:27. She stood with her left side next
to Trooper Cook's right side, her body perpendicular to
Trooper Cook. Buddy was at Hupp's right. Hupp's arms
were at her side and her hands were visibly empty.
Id. at 1:26-1:28. Within seconds of Hupp's
arrival, Trooper Cook grabbed Hupp's left arm with his
right hand. Id. at 1:29. A brief struggle ensued
during which Trooper Cook turned to his left, Hupp moved to
her right and directly facing Trooper Cook, all while the two
struggled for two seconds with Trooper Cook's grasp on
Hupp's arm. Id. at 1:29-1:30. As Trooper Cook
and Hupp spun around, Hupp fell to the ground. Id.
at 1:31. When Hupp stood up, Trooper Cook grabbed her arms
from behind and walked her to the police car parked a few
feet away. Id. at 1:34-39. Bending Hupp over the
hood of the police car, the troopers handcuffed her.
Id. at 1:40-2:05.
not depicted clearly in the video, Trooper Cook testified
that after seeing Buddy as he entered the yard, he yelled for
someone to control the dog or to "get a hold of your
dog." J.A. 201, 569-70. According to Trooper Cook, he
did not at first notice that Buddy was on a chain. Hupp
testified that she ran toward Trooper Cook both in response
to Buddy's barks but also in response to the
trooper's order to control the dog.
not clear from the video is what was said by Trooper Cook and
Hupp in their brief encounter. Trooper Cook testified that he
told Hupp at least twice to back away and that her response
was that he could not tell her what to do on her property.
Trooper Cook also maintained that Hupp was
"cursing" and "screaming profanities" at
him. J.A. 210, 509. Hupp testified, on the other hand, that
she did not hear any of Trooper Cook's orders and simply
told him, "Whoa, whoa, don't do that, stop."
husband, Ryan, recorded the incident with his cell phone from
inside Myers's home. As Hupp was being arrested, she
asked Ryan, "Did you get that on video?" J.A. 86.
Ryan answered, "Don't worry, babe. I've got that
shit." J.A. 244. Trooper Cook later testified that he
understood that statement to mean that Ryan "was glad he
had" the video and "wouldn't get rid of it for
his-his possession of it." J.A. 247.
learning that a video had been recorded, Trooper Cook
"stepped in" to Myers's home without a warrant
and without consent. J.A. 237, 258. He seized four electronic
devices: a child's tablet and three cell phones,
including Ryan's phone that recorded the incident. J.A.
237, 572. Trooper Cook explained in his deposition
that it is his practice to seize electronic recording devices
without first obtaining a warrant if he believes that someone
has used the device to capture evidence. The State Police
retained the devices for a month before returning them.
was charged with obstruction under West Virginia Code §
61-5-17(a). She was arraigned, and after the magistrate judge
concluded that probable cause existed for her arrest, she was
released on bond. Following a jury trial in the Wood County
magistrate court, Hupp was acquitted.
Hupp, Myers, and Hupp's minor son-who witnessed his
mother's arrest-filed suit against Trooper Cook, West
Virginia State Police Colonel C.R. "Jay" Smithers
(the superintendent), and the West Virginia State Police.
Appellants brought several claims for violation of their
constitutional rights under 42 U.S.C. § 1983 and
parallel state law claims. Appellants later amended their
complaint, bringing claims against the police officers in
their individual and official capacities and against the West
Virginia State Police. The district court granted in part a
motion to dismiss, dismissing the claims against the West
Virginia State Police and those brought against the police
officers in their official capacities. As a result, claims
remained against only Trooper Cook and Colonel Smithers in
their individual capacities. The claims against Trooper Cook
included section 1983 claims for false arrest, excessive
force, malicious prosecution, unlawful search of Myers's
house, unlawful seizure of the electronic devices, and
unlawful seizure of Buddy; and state law claims for malicious
prosecution, intentional infliction of emotional distress
(outrage), and battery. A claim for supervisory liability
under section 1983 also remained against Colonel Smithers.
Cook and Colonel Smithers moved for summary judgment on all
of the remaining claims, and Appellants moved for partial
summary judgment on the false arrest, excessive force, and
unlawful search and seizure claims. The district court
granted summary judgment to Trooper Cook and Colonel Smithers
and denied summary judgment to Appellants. The district court
found that Trooper Cook is entitled to qualified immunity on
the false arrest, excessive force, and malicious prosecution
claims brought under section 1983 as well as on the common
law malicious prosecution claim. The district court granted
summary judgment to Trooper Cook on the outrage and battery
claims as well. Because the court found that Trooper Cook did
not violate Hupp's constitutional rights, it granted
summary judgment to Colonel Smithers on the one remaining
claim of supervisory liability against him.
district court also granted summary judgment to Trooper Cook
on the unlawful search and seizure claims. The court
concluded that exigent circumstances justified the search of
Myers's home and the seizure of the electronic devices
because an objectively reasonable officer would have believed
that Myers's family members would destroy or conceal the
video evidence before a warrant could be obtained. With
respect to the claim of unlawful seizure of Buddy, the court
found that Trooper Cook's actions did not
"meaningfully interfere[ ]" with Appellants'
"possessory interest in Buddy." J.A. 636.
timely appealed the grant of summary judgment on the claims
for false arrest, excessive force, malicious prosecution,
unlawful entry, and unlawful seizure of the electronic
devices. Appellants also appealed the denial of summary
judgment in their favor on the Fourth Amendment claims
related to the entry of Myers's home and seizure of the
electronic devices. Appellants did not appeal the grant of
summary judgment on the supervisory liability claim, claim
for unlawful seizure of Buddy, or the state law claims of
outrage and battery.
district court had jurisdiction pursuant to 28 U.S.C.
§§ 1331, 1343(a)(3), and 1367, and we have