Date: 09-10-2014

Case Style: Matthew Alexander Tarabochia v. FBI Special AGent Mickey Adkins

Case Number: 11-35837

Judge: Michael Daly Hawkins

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Western District of Washington (King County)

Plaintiff's Attorney: Amit Kurlekar (argued), Kaufhold Gaskin LLP, San
Francisco, California, Pro Bono Counsel for Plaintiffs-
Appellants.

Defendant's Attorney: Paul F. James (argued), Assistant Attorney General and
Robert W. Ferguson, Attorney General, Office of the
Washington Attorney General, Olympia, Washington, for
Defendants-Appellees.

Description: We must decide whether a suspicionless roving
automobile stop of commercial fishers made while they drive
on a public highway to investigate compliance with
Washington fish and game laws constitutes an unreasonable
search and seizure within the meaning of the Fourth
Amendment and, if so, whether this right was clearly
4 TARABOCHIA V. ADKINS
established as of the time of the stop at issue in this case.
Because we determine that this stop, which lacked any basis
in suspicion of unlawful behavior or statutory authority that
would render it permissible under the administrative search
exception, violated Appellants’ clearly established Fourth
Amendment rights, we reverse the district court’s grant of
qualified immunity on Appellants’ Fourth Amendment claim
and remand. We affirm the dismissal of Appellants’
Fourteenth Amendment substantive due process claim
because the district court correctly deemed this claim
untimely.
I. BACKGROUND
The facts underlying this case stretch back to the year
2000 and culminate in an automobile stop on March 23, 2007.
Appellants Matthew and Alex Tarabochia,1 along with their
brother, Bryan, are the sons of Joseph Tarabochia,2 a
longtime commercial fisher. The Tarabochias allege that
beginning sometime in 2000, Captain Michael Cenci and
other Washington Department of Fish and Wildlife
(“WDFW”) officers began a “personal vendetta” against
them. The WDFW officers insist they were engaged in
proper law enforcement activities against fishing scofflaws.
The district court was able to resolve these facts in the
officers’ favor. We are not.
1 Due to their failure to list all four original plaintiffs on the Notice of
Appeal, Matthew and Alex are the only Appellants in this case. See
Torres v. Oakland Scavenger Co., 487 U.S. 312, 317–18 (1988) (use of
“et al.” does not confer jurisdiction over appeal of plaintiff not listed in
notice of appeal).
2 We refer to the Tarabochias by their first names throughout this
opinion for clarity.
TARABOCHIA V. ADKINS 5
Taking the facts, as we must, in the light most favorable
to the nonmoving party, Gravelet-Blondin v. Shelton,
728 F.3d 1086, 1090 (9th Cir. 2013), from 2000 until the date
of the stop at issue, Captain Cenci and other WDFW officers
have, among other things: followed the Tarabochias in their
automobile on multiple occasions; detained Joseph and
Matthew, including Joseph on one occasion for an hour and
a half only to let him leave without citation; confronted the
Tarabochias aboard their fishing vessel with a knife in hand
and accompanied by at least six other WDFW officers;
intentionally swerved into their automobile while both cars
were driving on a public road; followed Alex and Bryan to
school on an almost daily basis; verbally threatened to “get”
Joseph and Alex on unspecified charges; and charged the
Tarabochias with at least twenty-seven “criminal counts, in
at least [eleven] court cases, in four [different] jurisdictions,”
many of which charges were dismissed prior to trial, none
resulting in conviction. After a March 2006 incident, which
resulted in charges that were later dropped, WDFW officers
started spreading unfounded rumors that Joseph posed a risk
to officer safety.
Given this history, the Tarabochias became fearful of
WDFW officers, and in 2006 Joseph requested a meeting
with the local prosecutor and the director of the WDFW to
address the family’s concerns. According to the prosecutor,
when Captain Cenci and another WDFW officer arrived at
the meeting, Cenci immediately tried to frisk Joseph despite
what the prosecutor considered a lack of any evidence that he
posed a threat. Finding Cenci’s behavior “outrageous,” the
prosecutor prevented Cenci from carrying out the frisk, and
the officers left the meeting.
6 TARABOCHIA V. ADKINS
On the morning of March 23, 2007, the Tarabochias were
driving in their pickup truck, which was loaded with a tote
containing recently caught salmon, along a state highway and
a public road when WDFW Sergeant Dan Chadwick and
Captain Cenci stopped them.3 Approximately a half an hour
beforehand, Captain Cenci had observed the Tarabochias
from afar while he conducted a field inspection in an area of
the lower Columbia River where commercial fishers regularly
tie up their boats and unload recently caught fish. A portion
of this area is near the Tarabochias’ home.
Sometime that morning, a newspaper reporter
accompanying Captain Cenci as a ride along passenger
notified Cenci that he had observed the Tarabochias load
salmon into the tote on the back of their pickup truck. Cenci
called Sergeant Chadwick, who was also in the general area
and relayed this information. Although the officers suspected
the Tarabochias had salmon on their truck, it is undisputed
that they had no reason to believe these salmon had been
taken in violation of applicable fish and game laws.
The officers decided not to inspect the fish at the dock,
but instead decided to pull the Tarabochias’ truck over once
on the highway4 to check for compliance with fish and game
laws. All four Tarabochias left the area of the field inspection
in their pickup truck loaded with the tote of salmon. Sergeant
3 The facts indicate that the WDFW officers began to follow the
Tarabochias on the highway and then followed them onto a public road.
Because we find this distinction irrelevant to our constitutional inquiry, we
refer to the place of the stop and search as a “highway.”
4 The officers assert they did so because of safety concerns based on an
earlier encounter Captain Cenci had with Joseph two days beforehand.
TARABOCHIA V. ADKINS 7
Chadwick, who had been parked along a state highway, saw
the truck pass by him. At that time, he began to follow the
Tarabochias and, after the Tarabochias had exited off the
highway onto a public road, he activated his emergency lights
to effectuate the stop. The Tarabochias initially failed to
stop, but Captain Cenci, who had been following behind
Sergeant Chadwick, pulled his automobile in front of the
Tarabochias, and caused them to stop. Officers Brett
Hopkins and Brad Rhoden soon arrived on the scene to lend
assistance.5
The Tarabochias refused to exit the automobile or open
the doors until sheriff’s deputies arrived because of their past
experience with the WDFW officers. Once someone the
Tarabochias recognized as a member of the Wahkiakum
County Sheriff’s Office arrived (about twelve minutes later),
the Tarabochias opened the car doors, and the WDFW
officers arrested Matthew and Joseph. The officers
proceeded to inspect the salmon in the tote, which inspection
failed to reveal any fish and game violations.
Joseph and Matthew were booked, cited for, among other
things, “avoiding a wildlife field inspection,” and released.
A Washington state district court for the County of
Wahkiakum later dismissed all charges, finding the stop,
search, and arrests unlawful since the officers had acted
contrary to state law and to the Washington state constitution
5 Because the complaint does not allege and the record does not indicate
that Officers Hopkins or Rhoden took part in the decision to stop and
search the Tarabochias’ automobile or that they participated in the alleged
“vendetta,” even construing the facts in the light most favorable to the
Tarabochias, there is insufficient basis to hold either of them liable under
42 U.S.C. § 1983. The district court is therefore instructed to dismiss the
complaint against them with prejudice.
8 TARABOCHIA V. ADKINS
in stopping and searching the Tarabochias’ automobile. On
appeal, the superior court upheld this decision, although
without reaching the constitutional issue, and reaffirmed that
at the time Captain Cenci ordered the stop of the Tarabochias’
automobile, he did not have “any reason to believe” the
Tarabochias’ truck contained “evidence of a violation of law
or rules[.]”
The Tarabochias filed their pro se federal district court
complaint pursuant to 42 U.S.C. § 1983 in March 2010,
alleging that WDFW officers Dan Chadwick, Brett Hopkins,
Brad Rhoden, and Mike Cenci violated their Fourth and
Fourteenth Amendment rights by stopping and searching their
automobile on March 23, 2007, and harassing them
throughout the years.6 The district court initially granted
summary judgment to the officers on the Tarabochias’ Fourth
Amendment claim, but denied them summary judgment on
the Tarabochias’ Fourteenth Amendment substantive due
process claim. Relying on a California state court decision,
the district court held that qualified immunity precluded the
Tarabochias’ Fourth Amendment search and seizure claim
since “the law regarding warrantless stops by WDFW officers
was not clearly established” at the time of the stop.
In September 2011, the court granted the Defendants’
second motion for summary judgment and dismissed the case,
holding that the § 1983 statute of limitations barred the
Tarabochias’ Fourteenth Amendment substantive due process
claim. This appeal followed.
6 The Tarabochias also alleged a Sixth Amendment claim and a
Fourteenth Amendment equal protection claim, which have since been
dismissed and are not advanced on appeal.
TARABOCHIA V. ADKINS 9
II. STANDARD OF REVIEW
We review de novo the district court's grant of summary
judgment based on qualified immunity and statute of
limitations grounds. Hooper v. Lockheed Martin Corp.,
688 F.3d 1037, 1045 (9th Cir. 2012) (statute of limitations);
Davis v. City of Las Vegas, 478 F.3d 1048, 1053 (9th Cir.
2007) (qualified immunity). “In determining whether
genuine issues of material fact remain, we are required to
view all evidence and draw all inferences in the light most
favorable to the nonmoving party, here, the” Tarabochias.
Gravelet-Blondin, 728 F.3d at 1090 (internal quotation marks
omitted).
III. DISCUSSION
A. Fourth Amendment Claim
We begin with the grant of summary judgment to
Defendants on the Tarabochias’ Fourth Amendment search
and seizure claim based on qualified immunity. “Qualified
immunity protects government officials from civil damages
‘insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.’” Chappell v. Mandeville, 706 F.3d
1052, 1056 (9th Cir. 2013) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). This doctrine provides an
immunity from suit rather than a defense to liability, Pearson
v. Callahan, 555 U.S. 223, 231 (2009), and ensures that
“officers are on notice their conduct is unlawful” before being
subjected to suit. Hope v. Pelzer, 536 U.S. 730, 739 (2002).
In this way, the doctrine strikes a balance between “the need
to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from
10 TARABOCHIA V. ADKINS
harassment, distraction, and liability when they perform their
duties reasonably.” Pearson, 555 U.S. at 231.
In determining whether officers are entitled to qualified
immunity, we consider (1) whether “the facts alleged show
the official’s conduct violated a constitutional right; and (2)
if so, whether the right was clearly established” as of the date
of the involved events “in light of the specific context of the
case.” Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009).
We exercise our discretion to consider the constitutional
violation prong first. See Pearson, 555 U.S. at 236.
1. Constitutional Violation
The Fourth Amendment guarantees “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures[.]” U.S.
Const. amend. IV. Given the Fourth Amendment’s core
purpose of protecting against arbitrary intrusions by
government officials, see Delaware v. Prouse, 440 U.S. 648,
653–54 (1979), “[a] search or seizure is ordinarily
unreasonable in the absence of individualized suspicion of
wrongdoing.” United States v. Fraire, 575 F.3d 929, 931 (9th
Cir. 2009) (citing City of Indianapolis v. Edmond, 531 U.S.
32, 37 (2000)). Because stopping an automobile and
detaining its occupants, “even if only for a brief period and
for a limited purpose,” constitutes a “seizure” under the
Fourth Amendment, Whren v. United States, 517 U.S. 806,
809–10 (1996), an official must have individualized
“reasonable suspicion” of unlawful conduct to carry out such
a stop. See Prouse, 440 U.S. at 663; United States v.
Brignoni-Ponce, 422 U.S. 873, 884–86 (1975).
TARABOCHIA V. ADKINS 11
Defendants argue that these Fourth Amendment principles
are not applicable to the automobile stop and search in this
case because of the Tarabochias’ status as commercial
fishers. Because administrative inspections of private
property, such as the one purportedly carried out by
Defendants here, constitute “searches” under the Fourth
Amendment, Donovan v. Dewey, 452 U.S. 594, 598 (1981),
if they are “unaccompanied by any quantum of
individualized, articulable suspicion” they “must be
undertaken pursuant to previously specified ‘neutral
criteria,’” i.e., a warrant. Prouse, 440 U.S. at 662 (quoting
Marshall v. Barlow's, Inc., 436 U.S. 307, 323 (1978)).
However, a warrant is not required if the search falls within
“certain carefully defined classes of cases.” Camara v. Mun.
Court of City & Cnty. of S.F., 387 U.S. 523, 528 (1967).
The WDFW officers argue that the stop and search here
falls within one of these classes of cases, namely,
administrative searches of enterprises engaged in pervasively
regulated industries. Because the Tarabochias are
commercial fishers who had salmon aboard their moving
truck, Defendants argue, they could be stopped by officers on
a highway to inspect their documents and demand they
display their catch, even absent any suspicion of unlawful
behavior. The officers argue they needed only “knowledge”
that the Tarabochias had recently engaged in fishing to justify
the stop under the Fourth Amendment.7
7 Defendants do not argue that they stopped the Tarabochias as part of
a fixed checkpoint. Their reliance on checkpoint cases for the proposition
that individualized suspicion of wrongdoing is unnecessary is therefore
misplaced given the distinct nature of checkpoints as opposed to the type
of roving stop at issue here. See Fraire, 575 F.3d at 934–35 (holding a
checkpoint stop reasonable under the Fourth Amendment and explaining
that “[t]he subjective intrusion from a checkpoint stop is significantly less
12 TARABOCHIA V. ADKINS
The administrative search exception is applicable to
warrantless searches where the search promotes an important
governmental interest, is authorized by statute, and the
authorizing statute and its regulatory scheme provide specific
limitations on the manner and place of the search so as to
limit the possibility of abuse. See United States v. Raub,
637 F.2d 1205, 1209–11 (9th Cir. 1980) (search of fishing
vessel held to be within the administrative search exception).
Where an inspection is authorized by statute but there are “no
rules governing the procedure that inspectors must follow, the
Fourth Amendment and its various restrictive rules apply.”
Colonnade Catering Corp. v. United States, 397 U.S. 72, 77
(1970).
An industry’s long history of regulation is also relevant to
this inquiry insofar as it limits an individual’s reasonable
expectation of privacy in things or places traditionally subject
to search under the industry’s regulatory scheme. See
Donovan, 452 U.S. at 605–06; Raub, 637 F.2d at 1210. It
therefore comes as no surprise that the cases in which this
exception has been applied involve warrantless searches
conducted on the premises or within the milieu of the
regulated business or industry. See, e.g., Donovan, 452 U.S.
594 (mines and stone quarries); United States v. Biswell,
406 U.S. 311 (1972) (gun retail establishments); Colonnade
Catering Corp., 397 U.S. 72 (liquor retail establishments);
United States v. Kaiyo Maru No. 53, 699 F.2d 989 (9th Cir.
than other types of seizures, such as random stops”). Additionally,
although Defendants allege they stopped the Tarabochias on the highway
because stopping them in the field inspection area near their home
presented unidentified safety concerns, they do not attempt to justify
constitutionally the stop on the basis of this disputed fact. We therefore
do not address this argument.
TARABOCHIA V. ADKINS 13
1983) (fishing vessels); Raub, 637 F.2d 1205 (fishing
vessels); United States v. Tsuda Maru, 470 F. Supp. 1223 (D.
Alaska 1979) (fishing vessels).
To justify the stop under this exception, the officers rely
on the state’s broad interest in protecting the fishery, the long
history of regulation of the commercial fishing industry, and
two Washington state statutory provisions. To be sure,
protecting the fishery is an important governmental interest
and “[c]ommercial fishing has a long history of being a
closely regulated industry.” Raub, 637 F.2d at 1209. But a
specific statute authorizing a particular type of warrantless
search is required, and the existence of such a statute alone
may not even be sufficient, for the administrative search
exception to apply. See Kaiyo Maru No. 53, 699 F.2d at 995
(noting that the “reasonableness” of a warrantless inspection
program under the Fourth Amendment “is determined on a
case-by-case basis” and “depends on the specific enforcement
needs and privacy guarantees of each statute”); Raub,
637 F.2d at 1211 n.7 (explicitly limiting its holding to
searches under the Sockeye Salmon or Pink Salmon Fishing
Act); Tsuda Maru, 470 F. Supp. at 1227–30 (upholding
search under the Fishery Conservation Management Act).
The officers rely on two statutory provisions within
Washington’s Fish and Wildlife Enforcement Code as
providing authority for the stop and search at issue. The first
statute provides that, “[b]ased upon articulable facts that a
person is engaged in fishing . . . fish and wildlife officers
have the authority to temporarily stop the person and check
for valid licenses, tags, permits, stamps, or catch record cards,
and to inspect all fish . . . and wildlife in possession as well
as the equipment being used to ensure compliance with . . .
this title.” Wash. Rev. Code § 77.15.080(1) (2002). This
14 TARABOCHIA V. ADKINS
statute does not expressly authorize an automobile stop or
define “engaged in fishing,” and Defendants have pointed to
no regulatory or other published authority applying this
provision to a roving automobile stop of commercial fishers.
Assuming, arguendo, that one could be “engaged in
fishing” while driving on a highway with salmon, given the
statute’s lack of definition and failure explicitly to authorize
the stop and search of an automobile, a commercial fisher is
unlikely to be aware that this provision could subject him or
her to a stop and search while engaging in this conduct. This
factor weighs against finding that section 77.15.080(1) meets
the demands of the administrative search exception, much
less that it authorizes this type of stop in the first place. See
Donovan, 452 U.S. at 603 (upholding a warrantless search
under the administrative search exception in part because, in
addition to being “specifically tailored” to protect the
government's interests, the regulations the Federal Mine
Safety and Health Act of 1977 imposed were “sufficiently
pervasive and defined that the owner of such a [mine] cannot
help but be aware that he will be subject to effective
inspection”) (internal quotation marks omitted).
Furthermore, unlike in Kaiyo Maru No. 53, 699 F.2d at
994–97, or Raub, 637 F.2d at 1210, where the relevant
statutes and regulations carefully limited warrantless searches
to certain areas within fishing vessels found in specific waters
and to individuals either actively engaged in fish harvesting
or in suspicious activities, there is nothing in section
77.15.080(1) limiting the potential scope of automobile
searches conducted under its authority. Without these
limitations, section 77.15.080(1) could potentially authorize
inspection of any automobile possibly containing fish or
wildlife at any time, whether in motion or stationary, and in
TARABOCHIA V. ADKINS 15
any location, even if hundreds of miles from the closest
fishing grounds or commercial fishing establishment, so long
as an officer believed the person was then “engaged in
fishing.” The statute’s lack of specificity is further evidenced
by its application to all “persons,” not simply to commercial
fishers. See State v. Thorp, 856 P.2d 1123, 1126 (Wash. Ct.
App. 1993) (holding administrative search exception
inapplicable to a roving automobile stop where the relevant
statute applied to “any person,” indicating regulation of the
general public, not a particular industry). Therefore, we find
unpersuasive Defendants’ argument that this statute
authorized the stop and search of the Tarabochias’ automobile
and did so in a manner consistent with the administrative
search exception.
The only other statute the officers point to provides that
“[f]ish and wildlife officers may inspect without warrant at
reasonable times and in a reasonable manner the premises,
containers, fishing equipment, fish, seaweed, shellfish, and
wildlife, and records required by the department of any
commercial fisher[.]” Wash. Rev. Code § 77.15.096 (2002).
This provision goes on to prohibit officers from conducting
warrantless searches and seizures where “the thing or place
is protected from search without warrant within the meaning
of Article I, section 7 of the state Constitution.” As with
section 77.15.080(1), this statute says nothing of stopping or
searching commercial fishers’ automobiles and Defendants
have provided no authority interpreting this provision as
authorizing such a stop.
Even if section 77.15.096 could somehow be construed to
authorize the suspicionless stop and subsequent search of a
16 TARABOCHIA V. ADKINS
closed tote aboard a commercial fisher’s automobile,8 the
portion of this provision relied upon by Defendants would
still fail to meet the requirements of the administrative search
exception since it “does not provide any standards to guide
inspectors either in their selection of [automobiles] to be
searched or in the exercise of their authority to search.”
Donovan, 452 U.S. at 601; accord Colonnade Catering
Corp., 397 U.S. at 77. Instead, the only limitation this
portion of section 77.15.096 would place on stops and
inspections of commercial fishers in moving automobiles
would be that such stops be carried out “at reasonable times
and in a reasonable manner.” The Fourth Amendment
already requires that searches be “reasonable,” and the
Supreme Court has made clear that additional guidance to
cabin officers’ discretion to search is required under the
administrative search exception. See Donovan, 452 U.S. at
601 (discussing Marshall, 436 U.S. 307, where the Court held
a statutory scheme authorizing warrantless searches “at . . .
reasonable times, and within reasonable limits and in a
reasonable manner” inadequate under the administrative
search exception).
Whether considered in combination or in isolation, these
two statutes fail to bring this stop and search within the
8 By section 77.15.096's express language, this would require that
Article I, section 7 of the Washington Constitution does not prohibit a
warrantless search of a container aboard an automobile stopped absent any
suspicion of wrongdoing. This state constitutional provision is more
protective than the Fourth Amendment and prohibits automobile stops not
founded on probable cause or articulable suspicion of wrongdoing. City
of Seattle v. Mesiani, 755 P.2d 775, 776 (Wash. 1988) (en banc) (holding
sobriety checkpoint violated Washington Constitution and commenting
that “article 1, section 7 provides greater protection to individual privacy
interests than the Fourth Amendment”).
TARABOCHIA V. ADKINS 17
“carefully defined class[ ]” of administrative search cases,
Camara, 387 U.S. at 528, let alone expressly authorize the
stop and search of a moving automobile.
Instead of inspecting the Tarabochias’ catch and
commercial fishing records in the field, at a commercial
fishing establishment, or through a fish and wildlife
checkpoint—all of which, both parties agree, would have
been authorized under Washington law—the WDFW officers
decided to stop the Tarabochias as they traveled in their
pickup truck on a highway. They effectuated this stop despite
admittedly lacking any suspicion of unlawful behavior or
statutory authority that would permit this search under the
administrative search exception. We hold that, under these
circumstances, this stop, and the search that followed,
constituted a Fourth Amendment violation.
2. Clearly Established
Although this suspicionless stop and search violated the
Fourth Amendment, the WDFW officers are still entitled to
qualified immunity on this claim if the Tarabochias’ rights
were not clearly established as of March 23, 2007, the date of
the stop. Pearson, 555 U.S. at 231–32. “The plaintiff bears
the burden of proof that the right allegedly violated was
clearly established[.]” Romero v. Kitsap Cnty., 931 F.2d 624,
627 (9th Cir. 1991). For a right to be “clearly established,”
its “contours must be sufficiently clear that a reasonable
official would understand that” his or her actions violated that
right. Hope, 536 U.S. at 739 (internal quotation marks
omitted). To meet this standard “the very action in question”
need not have “previously been held unlawful.” Chappell,
706 F.3d at 1056 (internal quotation marks omitted). This is
particularly true in the Fourth Amendment context, where the
18 TARABOCHIA V. ADKINS
constitutional standard of “reasonableness” demands a
fact-specific inquiry. Mattos v. Agarano, 661 F.3d 433, 442
(9th Cir. 2011). Under this second prong, we therefore
consider “whether a reasonable officer would have had fair
notice that [the action] was unlawful[.]” Chappell, 706 F.3d
at 1056–57 (internal quotation marks omitted); accord A.D.
v. Calif. Highway Patrol, 712 F.3d 446, 454 (9th Cir. 2013).
We begin our inquiry “by looking to binding precedent[;]
[i]f the right is clearly established by decisional authority of
the Supreme Court or this Circuit, our inquiry should come to
an end.” Boyd v. Benton Cnty., 374 F.3d 773, 781 (9th Cir.
2004) (internal citations omitted). In the absence of binding
precedent clearly establishing the constitutional right, “we
look to whatever decisional law is available . . . including
decisions of state courts, other circuits, and district courts.”
Id. (internal quotation marks omitted).
It was clearly established on the date of the automobile
stop at issue here that the Tarabochias had a Fourth
Amendment right not to be stopped by WDFW officers while
driving on a highway absent reasonable suspicion the
Tarabochias had or were about to engage in unlawful activity.
In United States v. Munoz, 701 F.2d 1293 (9th Cir. 1983), we
held that a roving automobile stop by an Oregon Department
of Fish and Wildlife biologist and a state game trooper of a
hunter driving in a national park to check for compliance with
woodcutting and hunting regulations violated the Fourth
Amendment because “[s]uch investigative stops must be
based on individualized suspicion.” Id. at 1295–1301.
As here, the officers in Munoz stopped the plaintiff to
check for compliance with applicable game regulations and
they attempted to justify the stop under the Fourth
TARABOCHIA V. ADKINS 19
Amendment’s administrative search exception. Id. at 1295,
1298–1300. In rejecting this justification, we noted that
“[t]he Supreme Court twice has rejected suggestions that th[e]
implicit consent theory [underlying the administrative search
exception] justifies roving stops of motorists.” Id. at 1299.
In holding the stop of Munoz unconstitutional, we
explicitly relied on these two prior Supreme Court
cases—Prouse, 440 U.S. at 663, and Brignoni-Ponce,
422 U.S. at 884—where the Court held that to conduct a
roving automobile stop, officials must reasonably suspect the
automobile’s occupants of unlawful behavior. Munoz,
701 F.2d at 1296–1300. Although the purpose of the stops in
each of these cases varied, we found the stops at issue in
Prouse and Brignoni-Ponce “indistinguishable” from the stop
of Munoz “to check for possible game violations.” Id. at
1300. Therefore, as in Prouse and Brignoni-Ponce, the
suspicionless stop’s intrusion on individual privacy
outweighed the government’s interest, there, in preserving
animal and plant resources. Id. at 1297–1301.
Prouse, Brignoni-Ponce, and Munoz clearly established
that knowledge that a automobile’s occupants are simply
engaged in—or, have recently been engaged in—a regulated
activity is insufficient on its own to justify an investigatory
automobile stop. See Prouse, 440 U.S. at 663 (“[E]xcept in
those situations in which there is at least . . . reasonable
suspicion that a motorist is unlicensed . . . or that either the
automobile or an occupant is otherwise subject to seizure for
violation of law, stopping an automobile and detaining the
driver . . . are unreasonable under the Fourth Amendment.”).
These cases are supported by a plethora of other pre-March
2007 decisions, which provided the WDFW officers with
“fair notice that [their action] was unlawful[.]” Chappell, 706
20 TARABOCHIA V. ADKINS
F.3d at 1056–57; see, e.g., United States v. Rowland,
464 F.3d 899, 907 (9th Cir. 2006) (“An officer may stop and
question an individual suspected of wrongdoing if the officer
can point to ‘specific and articulable facts which . . .
reasonably warrant that intrusion.’”) (quoting Terry v. Ohio,
392 U.S. 1, 21 (1968)); United States v. Lopez-Soto, 205 F.3d
1101, 1104–05 (9th Cir. 2000) (explaining that reasonable
suspicion of unlawful behavior is required for traffic stops);
United States v. Twilley, 222 F.3d 1092, 1095 (9th Cir. 2000)
(“Under the Fourth Amendment, government officials may
conduct an investigatory stop of a vehicle only if they possess
reasonable suspicion . . . of criminal activity.”) (internal
quotation marks omitted). Munoz, 701 F.2d 1293, clearly
extended these Fourth Amendment principles to the acts of
fish and wildlife officials when acting pursuant to fish and
game laws and regulations.9
Despite this long line of cases holding that officers must
possess reasonable suspicion of unlawful conduct to stop an
automobile and detain its occupants, Defendants argue that
this right was not clearly established because in Munoz, the
officers “had no reason to believe” Munoz “had engaged in
any regulated activity” before stopping him whereas, here, the
officers knew the Tarabochias had recently engaged in
fishing. For this assertion, Defendants point out that the
officers in Munoz did not observe the chopped wood in the
back of Munoz’s truck before flagging him down to stop;
9 The district court and the WDFW officers relied on People v. Maikhio,
253 P.3d 247 (Cal. 2011), a 2011 Supreme Court of California decision,
as persuasive authority in holding that the right was not clearly
established. Not only is Maikhio distinguishable on its facts and largely
in conflict with Munoz, but it also post-dates the stop at issue here. It is
therefore irrelevant to the inquiry of whether the right at issue was clearly
established as of the date of the stop.
TARABOCHIA V. ADKINS 21
instead, they noticed the wood “[a]t the same time [they]
flagged” him down. Munoz, 701 F.2d at 1295.
That the officers in Munoz did not see the chopped wood
in Munoz’s truck before waving him down to stop was not
essential to our holding. Instead, as discussed above, we
relied on Prouse, 440 U.S. 648, and Brignoni-Ponce,
422 U.S. 873, for the proposition that “roving stops made
without any reasonable suspicion of criminal activity
regarding the vehicle, its occupants, or its contents” are
unconstitutional. Munoz, 701 F.2d at 1297 (emphasis added).
Under this reasoning, since “[c]arrying wood was not illegal
in the park,” id. at 1296 n.7, the officers’ conduct would have
still been unconstitutional even if they had observed the
chopped wood before effectuating the stop. It was the lack of
reasonable suspicion of criminal or other unlawful activity,
not of regulated activity, that Munoz held essential.
Therefore, any slight factual distinction between the stop at
issue in Munoz and the stop at issue here is “irrelevant . . .
because the constitutional rule [Munoz and other binding
precedent] established appl[ies] with obvious clarity” to the
WDFW officers’ conduct. A.D., 712 F.3d at 454 (internal
quotation marks and citation omitted).10
10 Although we need not look beyond binding precedent, Boyd, 374 F.3d
at 781, we note that even non-binding precedent clearly established the
Tarabochias’ Fourth Amendment right to be free from the suspicionless
stop. In Thorp, 856 P.2d 1123, an officer “observed a flatbed truck loaded
with cedar blocks traveling north on a county road,” and he stopped the
truck “in order to ascertain whether its driver . . . had a specialized forest
products permit.” Id. at 1124. As in the Tarabochias’ case, the officer’s
knowledge that Thorp had engaged in a regulated activity—evidenced by
the visible cedar blocks in his truck—motivated the stop. Id. The officer
lacked any “articulable suspicion” before stopping Thorp, and the officer
contended that he had authority to conduct the suspicionless stop because
22 TARABOCHIA V. ADKINS
Finally, “a reasonable officer would [have] recognize[d]”
that the suspicionless stop of the Tarabochias’ automobile
exceeded the bounds of the statutes Defendants purportedly
relied on. Grossman v. City of Portland, 33 F.3d 1200, 1210
(9th Cir. 1994). As discussed above, supra Part III.A.1,
neither section 77.15.080(1) nor section 77.15.096 mentions
stopping or searching automobiles.11 Unlike these provisions,
there are other provisions also within Washington’s Fish and
Wildlife Enforcement Code that explicitly apply to stops and
searches of automobiles and, importantly, these statutes
carefully limit WDFW officers’ authority to conduct such
stops and searches.
For example, section 77.15.094 explicitly authorizes
WDFW officers to search “vehicles” without a warrant, but
the forest products industry is “pervasively regulated.” Id. at 1124–25.
The court rejected this argument and determined that “even if the forest
products industry were pervasively regulated, the Fourth Amendment
standards applicable to such industries would not allow the police to
randomly stop a moving vehicle without . . . articulable suspicion.” Id. at
1125. Relying explicitly on Prouse, 440 U.S. 648, Brignoni-Ponce,
422 U.S. 873, and Munoz, 701 F.2d 1293, the court held that the stop was
“governed by the Fourth Amendment principles that ordinarily apply to
traffic stops” and that it was therefore unconstitutional under both the
United States and Washington Constitutions. Id. at 1126–27. Thorp’s
facts and constitutional holding are directly applicable to the WDFW
officers’ conduct.
11 Defendants argue that Schlegel v. Department of Licensing, 153 P.3d
244 (Wash. Ct. App. 2007), a pre-March 2007 decision, renders the stop
at issue here lawful under section 77.15.080(1). Although Schlegel held
that section 77.15.080(1) authorized a stop by a WDFW officer of a
hunter’s automobile on a “hunting road,” it did so within the context of a
checkpoint limited to stops of persons “engaged in hunting” while in their
automobile and explicitly limited its holding to this factual scenario. Id.
at 245–47. Schlegel therefore does not alter our analysis.
TARABOCHIA V. ADKINS 23
only where officers have “reason to believe” the vehicle
contains “evidence of a violation of” fish and game laws or
regulations. Wash. Rev. Code § 77.15.094 (2001). The
WDFW officers admit they lacked any “reason to believe”
the salmon aboard the Tarabochias’ truck was “evidence of
a violation.” WDFW officers also have authority “to require
. . . fishers occupying a motor vehicle approaching or entering
a check station to stop and produce for inspection . . . [a]ny
wildlife, fish, shellfish, or seaweed in their possession,” and
“licenses, permits, tags, stamps, or catch record cards[.]”
Wash. Rev. Code § 77.12.620. These “check station[s]” must
be clearly marked, id., and cannot be established “upon
interstate highways or state routes.” Wash. Rev. Code
§ 77.15.470(3) (2000).
Thus, “it should have been readily apparent to a
reasonable officer” that neither section 77.15.080(1) nor
section 77.15.096 authorized the suspicionless roving stop,
and the subsequent search, of the Tarabochias’ pickup truck
as they drove on a highway and public road. Ctr. for
Bio-Ethical Reform, Inc. v. L.A. Cnty. Sheriff Dep't, 533 F.3d
780, 798 (9th Cir. 2008)); accord Grossman, 33 F.3d at 1210
(An officer who enforces an ordinance “in a manner which a
reasonable officer would recognize exceeds the bounds of the
ordinance, will not be entitled to [qualified] immunity[.]”).
For these reasons, we hold that the suspicionless stop and
search of the Tarabochias’ automobile violated “clearly
established . . . constitutional rights of which a reasonable
person would have known.” Chappell, 706 F.3d at 1056.
Officers Michael Cenci and Dan Chadwick are therefore not
entitled to qualified immunity on the Tarabochias’ Fourth
Amendment claim.
24 TARABOCHIA V. ADKINS
B. Fourteenth Amendment Claim
We now turn to the summary judgment dismissal of the
Tarabochias’ Fourteenth Amendment substantive due process
claim. The district court dismissed this claim based on its
assumption that the March 23, 2007, stop must be analyzed
exclusively under the Fourth Amendment and, absent this
incident, all remaining alleged incidents fall outside the
applicable statute of limitations.12 Although the district court
did not expressly analyze whether the March 23, 2007, stop
could arise under both the Fourteenth and Fourth
Amendments, we agree with its ultimate conclusion that it
cannot.13
12 Contrary to Defendants’ suggestion, this argument is not waived due
to the Tarabochias’ failure to respond to their summary judgment motion
as “even if a party fails to raise an issue in the district court, we generally
will not deem the issue waived if the district court actually considered it.”
Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1054 (9th Cir. 2006)
(citing Harrell v. 20th Century Ins. Co., 934 F.2d 203, 205 n.1 (9th Cir.
1991). The district court actually considered whether the March 23, 2007,
incident could form a basis for the Fourteenth Amendment claim.
Therefore, we will not deem this issue waived.
13 On appeal, the Tarabochias argue for the first time that the continuing
violations doctrine renders the incidents occurring prior to the limitations
period, in conjunction with the March 23, 2007, stop, actionable under the
Fourteenth Amendment. Unlike whether the Tarabochias’ alleged the
March 23, 2007, stop as a factual basis for the Fourteenth Amendment
claim, the record does not indicate that the district court ever “actually
considered,” Cmty. House, Inc., 490 F.3d at 1054, the applicability of the
continuing violations doctrine to the remaining incidents when faced with
Defendants’ summary judgment motions. As a result, this argument is
waived. Alexopulos by Alexopulos v. Riles, 784 F.2d 1408, 1411 (9th Cir.
1986) (statute of limitation tolling argument waived on appeal because
Appellants had not raised it before the district court). Even if we were to
consider this argument, we find the continuing violations doctrine
TARABOCHIA V. ADKINS 25
The Supreme Court has instructed that “[w]here a
particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of
government behavior, that Amendment, not the more
generalized notion of substantive due process, must be the
guide for analyzing these claims.” Albright v. Oliver,
510 U.S. 266, 273 (1994) (quoting Graham v. Connor,
490 U.S. 386, 395 (1989)) (plurality opinion of Rehnquist,
C.J.) (internal quotation marks omitted). The Fourth
Amendment explicitly protects against unreasonable
“searches and seizures” whereas the Fourteenth Amendment
due process clause protects against official behavior that
“shocks the conscience.” Fontana v. Haskin, 262 F.3d 871,
881 (9th Cir. 2001). Because the actionable incident here, the
March 23, 2007, stop, “constitutes a ‘seizure’ of ‘persons’”
under the Fourth Amendment, Whren, 517 U.S. at 809, it is
properly analyzed exclusively under this constitutional
provision and not under the broader concept of substantive
due process. Compare Fontana, 262 F.3d at 880–82 (holding
that, although “[s]exual misconduct by a police officer” is
often analyzed under the Fourteenth Amendment, appellant’s
claim is properly brought exclusively under the Fourth
Amendment since she had been “seized” by the police), with
Cnty. of Sacramento v. Lewis, 523 U.S. 833, 836, 843 (1998)
(holding that a claim stemming from a high-speed police
inapplicable since the Tarabochias’ claims are based on “discrete acts,
each of which is actionable on its own.” RK Ventures, Inc. v. City of
Seattle, 307 F.3d 1045, 1061 n.13 (9th Cir. 2002). Accordingly, these
“acts are not actionable if time barred, even [if] they are related to” the
March 23, 2007, stop. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113 (2002). Although the pre-March 2007 incidents could still be
considered “as evidence of an unconstitutional motive,” RK Ventures, Inc.,
307 F.3d at 1062, this would still leave the March 23, 2007, stop as the
only basis for liability.
26 TARABOCHIA V. ADKINS
chase arose under the Fourteenth Amendment due process
rubric, not the Fourth Amendment, since the conduct at issue
did not constitute a “search” or “seizure”).14
The district court therefore properly dismissed the
Tarabochias’ substantive due process claim because, without
the March 23, 2007, stop, the claim is untimely.
IV. CONCLUSION
We recognize the importance of Washington state’s
interest in promoting the conservation of its fishery and its
ability to closely regulate the commercial fishing industry in
a manner to further this interest, including by statutorily
authorizing tailored warrantless administrative searches.
However, the WDFW officers did not conduct their
suspicionless stop and search of the Tarabochias’ automobile
pursuant to any statutory authority. Such suspicionless
automobile searches and seizures of commercial fishers,
absent express statutory authorization, subject them to
“unfettered governmental intrusion,” Prouse, 440 U.S. at
663—the principal evil against which the Fourth Amendment
protects.
In light of the foregoing, we affirm the grant of summary
judgment as to Officers Hopkins and Rhoden, and reverse the
grant of qualified immunity to Officers Michael Cenci and
Dan Chadwick and the related summary judgment dismissal
of the Tarabochias’ Fourth Amendment claim. We remand
14 The Tarabochias’ reliance on A.D., 712 F.3d 446, in support of their
argument that the March 2007 stop can be analyzed under both the Fourth
and Fourteenth Amendments is misplaced. Unlike in Fontana, 262 F.3d
871, in A.D. we had no occasion to consider the question now before us.
TARABOCHIA V. ADKINS 27
for further proceedings on this claim. Finally, we affirm the
dismissal of the Tarabochias’ Fourteenth Amendment
substantive due process claim.

Outcome: REVERSED in part, AFFIRMED in part, and
REMANDED. Costs on appeal to Appellants.

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