Summary
finding that, while a positive alert by a properly trained drug detection dog provides an officer probable cause to search the vehicle without warrant, plaintiff "sufficiently alleged facts from which it could reasonably be inferred" that the drug-detection dog did not positively alert to drugs in the vehicle and that defendant "falsely stated [the dog] had alerted"
Summary of this case from Cole v. CoverstoneOpinion
No. 3:11-CV-1584
06-11-2012
JOHN GASS, Plaintiff, v. GEORGE C. MURPHY, et al., Defendants.
(JUDGE CAPUTO)
(MAGISTRATE JUDGE SMYSER)
ORDER
NOW this 11th day of June, 2012, upon review of the report and recommendation of Magistrate Judge J. Andrew Smyser (Doc. No. 47) for plain error or manifest injustice, IT IS HEREBY ORDERED that:
(1) The report and recommendation (Doc. No. 47) is ADOPTED.
(2) The Defendants' Motions to Dismiss the Amended Complaint (Doc. 31 and 32) are GRANTED IN PART AND DENIED IN PART, as follows:
(A) The claim for monetary damages against defendant Murphy in his official capacity is DISMISSED.(3) This case is RECOMMITTED to Magistrate Judge Smyser for further proceedings.
(B) The Claim against Defendant Murphy and Defendant Dubernas based on the canine sniff is DISMISSED.
(C) The claim against Defendant Murphy based on the initial traffic stop, the claim against both defendants based on the impoundment and search of the vehicle, and the claim against both defendants based on the arrest ARE NOT DISMISSED.
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A. Richard Caputo
United States District Judge