Kummer v. Embley

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
BRITTANY KAY KUMMER,
Plaintiff,
v.
BRIAN EMBLEY, in his individual capacity,
Defendant.
MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT’S
MOTION TO DISMISS
No. 2:25-cv-00548-RJS
District Judge Robert J. Shelby
Chief Magistrate Judge Cecilia M. Romero
This case arises out of Defendant Officer Brian Embley conducting a traffic stop of
Plaintiff Brittany Kay Kummer.1 Before the court is Officer Embley’s Motion to Dismiss.2 For
the reasons explained below, the court DENIES the Motion.
BACKGROUND3
On March 21, 2024, Kummer met a friend at a gas station in Magna, Utah.4 Officer
Embley was on patrol that evening and was interested in Kummer’s friend.5 When Kummer left
the gas station to drive home around 9:36 PM, Officer Embley followed her.6 While following
her, Officer Embley ran the license plate of the Honda driven by Kummer.7 He learned the
1 Dkt. 1, Complaint.
2 Dkt. 13, Defendant’s Motion to Dismiss with Prejudice (Motion).
3 The following facts are drawn from the Complaint. In reviewing a motion to dismiss, the court accepts all well-
pleaded facts as true and views them in the light most favorable to the plaintiff. See, e.g., Beedle v. Wilson, 422 F.3d
1059, 1063 (10th Cir. 2005).
4 Complaint ¶¶ 7‒9.
5 Id. ¶¶ 15–16.
6 Id. ¶¶ 12‒13, 27.
7 Id. ¶ 28.
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 1 of 19

2
vehicle was not insured and its registered owner had a suspended license.8 As Kummer turned
onto Copperview Drive, Officer Embley activated his patrol lights and Kummer pulled over.9
Prior to the traffic stop, Kummer had been operating the vehicle safely and within the lane
lines.10 Officer Embley’s report falsely stated he observed the Honda “cross the left hand lane
marker several times,” and he conducted the stop “to investigate driving under the influence and
unsafe lane travel.”11 Neither statement was true.12
Officer Embley approached the vehicle and asked for Kummer’s driver’s license.13
Kummer explained she left it at home.14 Officer Embley said he stopped her because it looked
like she was weaving between the lanes and might be driving under the influence of drugs or
alcohol.15 Embley denied being under the influence.16 During this one minute conversation,
Officer Embley did not smell alcohol or drugs, see any drug paraphernalia, or observe Kummer
exhibiting bloodshot eyes, slurred speech, or slow responses.17
Officer Embley returned to his patrol car and entered Kummer’s information into his
computer.18 He learned she had a history of drug charges, but no charges were outstanding.19
About three minutes into the stop, Officer Embley called for a K9 unit to come conduct a vehicle
8 Id.
9 Id. ¶¶ 29–33.
10 Id. ¶ 35.
11 Id. ¶¶ 34–36.
12 Id.
13 Id. ¶¶ 37–39.
14 Id. ¶ 40.
15 Id. ¶¶ 45, 47.
16 Id. ¶¶ 46, 48.
17 Id. ¶¶ 50–53, 81–84.
18 Id. ¶ 54.
19 Id. ¶ 55.
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 2 of 19

3
sniff.20 Officer Embley was on his computer for approximately two minutes, although none of
this time was used to work on a traffic citation.21
Officer Embley returned to Kummer and requested she exit the vehicle, which she did.22
Kummer walked and stood normally; her movement did not suggest she was impaired.23
Kummer then explained that he may have observed an unusual driving pattern because the screen
on her console was glitching and she was probably turning it off.24 Officer Embley again asked
whether she was under the influence, and Kummer again said no.25 Kummer spoke like “she had
all of her faculties,” and Officer Embley believed she was able to drive and walk.26
Slightly after the five minute mark, Officer Embley asked Kummer about her history with
law enforcement and drug use.27 Kummer responded that she had previously used
methamphetamine but had not used since going to rehab a couple years prior.28 She pulled up
her sleeve to show she did not have track marks.29 Officer Embley asked how long it had been
since she last used.30 Kummer responded, “It’s been quite a while. I wouldn’t even be able to
tell ya.”31 Officer Embley then informed Kummer he had called for a K9 unit and explained it
20 Id. ¶ 56.
21 Id. ¶¶ 57, 59.
22 Id. ¶¶ 60, 62–63.
23 Id. ¶ 67.
24 Id. ¶¶ 71–72.
25 Id. ¶¶ 73–76.
26 Id. ¶ 84.
27 Id. ¶ 90.
28 Id. ¶¶ 91–95.
29 Id. ¶ 96.
30 Id. ¶ 99.
31 Id. ¶ 100.
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 3 of 19

4
would be quicker if she would work with him and tell him if there was anything in the car.32 At
this point, the stop had lasted almost seven minutes, and Officer Embley had spent none of that
time working on a citation.33
Kummer admitted to having a pipe and a small amount of a controlled substance but
denied using that day.34 Officer Embley asked to search the car, and Kummer consented.35
Officer Embley read Kummer her Miranda warnings and told her he was going to handcuff her
while he searched the car.36 Kummer asked if she could smoke a cigarette, and Officer Embley
agreed.37 Around twenty-one minutes into the stop, Officer Embley handcuffed Kummer and
placed her in his police car.38 Officer Embley then retrieved Kummer’s cell phone from the
Honda.39 He brought the phone to Kummer and asked if she would mind sharing the phone
number of the friend she had met at the gas station.40 While Kummer said she did not mind, her
tone indicated she was clearly reluctant and uncomfortable.41 Officer Embley searched the
phone.42 Around the twenty-nine-minute mark, a K9 officer arrived.43 Officer Embley told the
K9 officer he stopped Kummer, who had a history of methamphetamine use.44 Their
32 Id. ¶¶ 101–02.
33 Id. ¶¶ 104–05.
34 Id. ¶¶ 106–10.
35 Id. ¶¶ 113–14.
36 Id. ¶¶ 121–22.
37 Id. ¶ 123.
38 Id. ¶¶ 125, 128.
39 Id. ¶ 131.
40 Id. ¶¶ 132–33, 136.
41 Id. ¶¶ 134–35.
42 Id. ¶ 136.
43 Id. ¶¶ 138–39.
44 Id. ¶ 140.
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 4 of 19

5
conversation lasted two minutes before the K9 officer left the scene without having the dog
conduct a sniff of the Honda.45 At the thirty-one-minute mark, Officer Embley began searching
the Honda.46 The search lasted about three and a half minutes.47 Officer Embley then returned
to the police vehicle, removed the handcuffs, and released Kummer.48 He never conducted a
field sobriety test.49 Kummer was allowed to drive her car away from the scene.50
Criminal charges were brought against Kummer.51 While the charges were pending,
Kummer was unable to obtain TWIC clearance, causing her to lose a job opportunity.52 In
March 2025, the state court granted Kummer’s motion to suppress, finding Officer Embley
lacked reasonable suspicion to remove Kummer from her vehicle and prolong her detention by
researching criminal activity unrelated to the traffic stop.53 The criminal case was dismissed.54
On July 10, 2025, Kummer filed this suit against Officer Embley, in his individual
capacity, for violating her rights under the United States and Utah Constitutions.55 Officer
45 Id. ¶¶ 142–43.
46 Id. ¶ 144.
47 Id. ¶ 145.
48 Id. ¶¶ 146–48.
49 Id. ¶ 150.
50 Id. ¶ 149.
51 Id. ¶ 151. Kummer was charged with possession of a controlled substance and possession of drug paraphernalia.
See Dkt. 13-2, Exhibit 2, State v. Kummer Criminal Docket. The court considers this document because it is central
to Kummer’s claim, referred to in the Complaint, and not disputed by the parties. See White v. Lucero, 135 F.4th
1213, 1219 (10th Cir. 2025).
52 Complaint ¶¶ 156–57. The Complaint does not define TWIC.
53 Id. ¶ 153; see also Dkt. 13-1, Exhibit 1, Memorandum Decision and Order (granting Kummer’s Motion to
Suppress).
54 Complaint ¶ 154.
55 Id. ¶¶ 161–69.
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 5 of 19

6
Embley filed his Motion on September 8, 2025,56 and with the benefit of oral argument on
January 13, 2026, the Motion is ripe for review.57
LEGAL STANDARD
“At the motion-to-dismiss stage, [the court] must accept all the well-pleaded allegations
of the complaint as true and must construe them in the light most favorable to the plaintiff.”58
“To survive dismissal, ‘a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.’”59 A claim is plausible when the factual
allegations “allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”60 Determining plausibility is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”61
ANALYSIS
The Complaint brings claims alleging the traffic stop violated Kummer’s rights under the
United States and Utah Constitutions.62 Officer Embley asserts he is entitled to qualified
immunity.63 The court concludes he is not entitled to qualified immunity at this stage of the
litigation.
56 Motion; Dkt. 14, Memorandum in Opposition to Defendant’s Motion to Dismiss with Prejudice (Opposition); Dkt.
15, Reply Memorandum in Support of Defendant’s Motion to Dismiss with Prejudice (Reply).
57 See Dkt. 17, Minute Entry.
58 Thomas v. Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014) (quoting Cressman v. Thompson, 719 F.3d 1139, 1152
(10th Cir. 2013)).
59 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
60 Iqbal, 556 U.S. at 678 (citation omitted).
61 Id. at 679 (citation omitted).
62 Complaint ¶¶ 161–69.
63 Motion at 1.
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 6 of 19

7
I. 	Officer Embley Is Not Entitled to Qualified Immunity at this Stage Because
Kummer Plausibly Alleges a Violation of a Clearly Established
Constitutional Right.
42 U.S.C. § 1983 provides a vehicle for a civil action against persons acting under color
of law.64 A Section 1983 claim “requires (1) deprivation of a federally protected right by (2) an
actor acting under color of state law.”65 Qualified immunity is an affirmative defense against a
§ 1983 claim that “creates a presumption that the defendant is immune from suit.”66 It “protects
all but the plainly incompetent or those who knowingly violate the law.”67 The purpose is to
give “government officials breathing room to make reasonable but mistaken judgments about
open legal questions.”68
To survive dismissal, the plaintiff must “allege sufficient facts that show—when taken as
true—the defendant” (1) “plausibly violated his constitutional rights” that (2) “were clearly
established at the time of violation.”69 The court has discretion in deciding which of the two
prongs to consider first.70 Qualified immunity is a fact-bound inquiry typically resolved on
summary judgment.71 “District courts may grant a motion to dismiss based on qualified
immunity, but asserting a qualified immunity defense via a Rule 12(b)(6) motion subjects the
64 See 42 U.S.C. § 1983 (“Every person who, under color of any statute, ordinance, [or] regulation . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitutions and laws, shall be liable to the party injured in an action at law.”).
65 VDARE Found. v. City of Colorado Springs, 11 F.4th 1151, 1160 (10th Cir. 2021) (citation modified).
66 Est. of Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020) (citation modified).
67 Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (citation modified).
68 Id.
69 Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013) (citation omitted).
70 Pearson v. Callahan, 555 U.S. 223, 236 (2009).
71 Kaven, 765 F.3d at 1194. But see Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008) (explaining there is
a “special interest in resolving the affirmative defense of qualified immunity at the earliest possible stage of
litigation” (citation modified)).
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 7 of 19

8
defendant to a more challenging standard of review than would apply on summary judgment”
since “the court analyzes the defendant’s conduct as alleged in the complaint.”72
A. 	The Complaint Plausibly Alleges Officer Embley Violated Kummer’s Constitutional
Rights.
Kummer alleges facts that, when taken as true, show Officer Embley plausibly violated
her constitutional rights.73 The Fourth Amendment secures the right to be free from
“unreasonable searches and seizures.”74 “In analyzing the constitutionality of a traffic stop under
the Fourth Amendment, [courts] apply the ‘reasonable suspicion’ standard for investigative
detentions originally set forth in Terry v. Ohio.”75 Under Terry, the court conducts a two-step
inquiry to determine a stop’s constitutionality: (1) whether the stop was “justified at its
inception,” and (2) if so, whether “the resulting detention was reasonably related in scope to the
circumstances that justified the stop in the first place.”76 For purposes of this Motion, Kummer
assumes the first step of the inquiry: the stop was justified at its inception based on the registered
owner’s suspended license and vehicle’s lack of insurance.77 But she argues the detention
became unconstitutional when it was prolonged to investigate crimes that Officer Embley did not
reasonably suspect Kummer committed.78
72 Truman v. Orem City, 1 F.4th 1227, 1235 (10th Cir. 2021) (citation modified).
73 See Wilson, 715 F.3d at 852.
74 U.S. Const. Amend. IV.
75 United States v. Winder, 557 F.3d 1129, 1133 (10th Cir. 2009) (citing Terry v. Ohio, 392 U.S. 1 (1968)).
76 Terry, 392 U.S. at 19‒20.
77 Opposition at 9 (“For the purposes of this opposition, Plaintiff will assume without conceding that Embley had
reasonable suspicion to pull Brittney over based on the information he says he had about the suspended license and
lack of insurance.”).
78 Id. at 10.
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 8 of 19

9
“Authority for the seizure [] ends when tasks tied to the traffic infraction are—or
reasonably should have been—completed.”79 In Rodriguez v. United States, the Supreme Court
explained that an officer’s mission during a traffic stop is “determining whether to issue a traffic
ticket” and conducting “ordinary inquiries incident to the traffic stop.”80 Investigating other
crimes, including conducting a dog sniff, deviates from that mission and cannot constitutionally
prolong a stop unless supported by reasonable suspicion.81 The Tenth Circuit interpreted
Rodriguez to mean “an unlawful seizure occurs when an officer (1) diverts from the traffic-based
mission for the stop to investigate ordinary criminal conduct, (2) in a way that prolongs (i.e.,
adds time to) the stop, and (3) the investigative detour is unsupported by any independent
reasonable suspicion.”82 When all three elements are met, the so-called “Rodriguez moment”
occurs and the seizure is unconstitutional from then on.83
Officer Embley diverted from the traffic-based mission and prolonged the stop to
investigate ordinary criminal conduct around the five minutes and twenty seconds mark when he
asked about Kummer’s history with law enforcement and methamphetamine use.84 A history of
drug charges is not incident to issuing a traffic citation for a suspended license and no
insurance.85 Whether this investigative detour was supported by arguable reasonable suspicion
of drug possession is the dispositive issue for Officer Embley’s asserted immunity.
79 Rodriguez v. United States, 575 U.S. 348, 354 (2015) (citation omitted).
80 Id. at 355 (quoting Illinois v. Caballes, 543 U.S. 405, 408 (2005)) (citation modified).
81 See id. at 356–58.
82 United States v. Frazier, 30 F.4th 1165, 1173 (10th Cir. 2022) (citation modified).
83 See id. at 1179.
84 See Complaint ¶ 90.
85 See id. ¶ 28.
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 9 of 19

10
Reasonable suspicion exists if articulable facts suggest “criminal activity may be
afoot.”86 This is an objective standard.87 While reasonable suspicion requires the officer to
“articulate something more than an inchoate and unparticularized suspicion or hunch,” it does
not require the officer to “rule out the possibility of innocent conduct.”88 This is not an onerous
standard,89 especially in the § 1983 context where qualified immunity applies if the officer had
“arguable reasonable suspicion.”90 In other words, “an officer is entitled to qualified immunity if
a reasonable officer could have believed that reasonable suspicion existed to detain the
plaintiff.”91 This assessment requires considering the “totality of the circumstances.”92 The
court must “judge the officer’s conduct in light of common sense and ordinary human
experience,” while also deferring “to an officer’s ability to distinguish between innocent and
suspicious actions.”93
The court may only consider facts known to Officer Embley at the point he diverted from
his traffic-based mission.94 Officer Embley argues he had reasonable suspicion based on five
facts: (1) Kummer was weaving between lanes, (2) the vehicle did not belong to Kummer, (3) the
86 Shaw v. Schulte, 36 F.4th 1006, 1013‒14 (10th Cir. 2022).
87 See United States v. McHugh, 639 F.3d 1250, 1256 (10th Cir. 2011) (“The detaining officer’s subjective beliefs
and intentions are, quite simply, irrelevant.” (citation modified)).
88 Shaw, 36 F.4th at 1014 (citations omitted).
89 United States v. Moore, 795 F.3d 1224, 1231 (10th Cir. 2015) (citation omitted); United States v. Kitchell, 653
F.3d 1206, 1219 (10th Cir. 2011) (citation omitted).
90 Shaw, 36 F.4th at 1014 (cleaned up).
91 Id. (citation modified).
92 Kitchell, 653 F.3d at 1218 (citation omitted).
93 Shaw, 36 F.4th at 1014 (citation modified) (quoting United States v. Simpson, 609 F.3d 1140, 1146 (10th Cir.
2010)).
94 See Frazier, 30 F.4th at 1174.
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 10 of 19

11
vehicle’s registered owner had a suspended license, (4) the vehicle was uninsured, and
(5) Kummer’s prior drug charges.95 The court considers each factor in turn.
1. 	Weaving Between Lanes
Officer Embley argues reasonable suspicion existed because Kummer was weaving
between lanes and weaving suggests impairment.96 But the court cannot consider this fact in
resolving the Motion. The Complaint alleges Kummer was driving “safely and within the lane
lines” prior to being pulled over, Officer Embley did not actually observe any weaving, and that
when Officer Embley asked Kummer about cutting between lanes, Kummer simply provided a
probable, innocent explanation.97 The motion to dismiss standard requires the court to view all
facts in the light most favorable to Kummer. At this stage, the court must assume Kummer was
driving safely and did not weave between lanes. Thus, Officer Embley cannot rely on Kummer
weaving to establish reasonable suspicion.
2. 	Driving a Vehicle that Does Not Belong to Kummer
Officer Embley argues he had reasonable suspicion because Kummer did not own the
vehicle and did not provide proof that she was authorized to drive it.98 The court also cannot
consider this fact because it is not alleged in the Complaint.99 Officer Embley cites the
95 See Motion at 12–15; Reply at 2. In Reply, Officer Embley raises for the first time the fact that Kummer did not
have her driver’s license supports reasonable suspicion. See Reply at 2. The court may not consider new arguments
raised in Reply. See DUCivR 7-4(c)(1)(B)(vi). Accordingly, this fact cannot be used to support dismissal. Further,
even if the court could consider this fact, it would be assigned minimal weight and would not change the analysis at
this stage.
96 Motion at 12–13.
97 See Complaint ¶¶ 34–36, 45–46, 71–74 (“Embley stated in his report that he observed the Honda Civic ‘cross the
left hand lane marker several times . . .’ This was not true. Brittany had been operating her vehicle safely and
within the lane lines. . . . [Kummer] then explained to Embley the reason that he may have observed an unusual
driving pattern (as he claimed).”).
98 Motion at 13–17.
99 See generally Complaint.
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 11 of 19

12
allegation that states, “Embley ran the license plates of Brittany’s Honda and learned the
registered owner has a suspended license, and that the vehicle was not insured.”100 This
allegation does not identify who the registered owner is nor their relationship to Kummer. Since
the court may consider only allegations in a pleading when deciding a motion to dismiss, this
fact has no bearing on the reasonable suspicion analysis.101
3. 	The Vehicle’s Registered Owner Had a Suspended License
Officer Embley argues the fact that the registered owner of the Honda had a suspended
license supports finding reasonable suspicion.102 The Tenth Circuit has recognized that driving
with a suspended license may contribute to an objectively reasonable suspicion of illegal
activity.103 This fact may support a reasonable suspicion finding.
4. 	The Vehicle Was Uninsured
Officer Embley argues the fact that the Honda was not insured supports finding
reasonable suspicion.104 Neither party cites a case considering whether driving an uninsured
vehicle supports a reasonable suspicion finding.105 In United States v. Hunnicutt, the Tenth
Circuit did not address whether the “lack of verification of insurance” supported reasonable
suspicion.106 Even so, the Circuit explained, “the inability to offer proof of . . . authorization to
100 Complaint ¶ 28; see also Reply at 6.
101 The court’s inability to consider the first two facts Officer Embley relies on illustrates the challenge of disposing
of qualified immunity at the motion to dismiss phase. At this stage, Kummer is entitled to rest on the pleadings and
Officer Embley’s “conduct as alleged in the complaint is scrutinized for objective reasonableness.” Kaven, 756
F.3d at 1194 (emphasis in original) (quotation omitted). In contrast, at summary judgment, the court can consider
all evidence before it to conduct the qualified immunity inquiry. Id.
102 Motion at 13–14; see also Complaint ¶ 28.
103 See United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998) (citing United States v. Jones, 44 F.3d 860,
872 (10th Cir. 1995)).
104 Motion at 13–14 (citing Complaint ¶ 28).
105 See id.; Opposition at 11–16.
106 Hunnicutt, 135 F.3d at 1349 (collecting cases).
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 12 of 19

13
operate the vehicle has figured prominently in many of our cases upholding further
questioning.”107 Because insurance is required to operate a vehicle lawfully, this fact weighs in
favor of reasonable suspicion. But the court assigns this fact minimal weight, since no fact in the
record here or Tenth Circuit decision on point connects a lack of insurance with drug possession.
5. 	Kummer’s History of Drug Charges
Officer Embley argues Kummer’s history of drug charges supports a finding of
reasonable suspicion.108 In the Tenth Circuit, criminal history may “weigh in favor of an
officer’s reasonable suspicion of illegal activity. But, an individual’s criminal record, by itself, is
not a sufficient basis for reasonable suspicion.”109 There, the Circuit assigned minimal weight to
a drug trafficking arrest that had occurred nearly ten years prior.110 Here, Officer Embley knew
Kummer had a history of drug charges but none were outstanding.111 The court finds this fact
weighs in favor of reasonable suspicion but is not a dispositive factor.
Considering the totality of the circumstances, there are insufficient facts before the court
to establish reasonable suspicion that would allow Officer Embley to prolong the stop and
inquire about Kummer’s drug history. Reasonable suspicion is a low standard, but it is not so
low that a person with prior drug charges loses their Fourth Amendment rights whenever they
drive an uninsured vehicle belonging to someone with a suspended license.112 More than the
107 Id.
108 Motion at 7, 12.
109 Shaw, 36 F.4th at 1016; see also United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997) (“[P]rior criminal
involvement alone is insufficient to give rise to the necessary reasonable suspicion to justify shifting the focus of an
investigative detention from a traffic stop to a narcotics or weapons investigation.” (citation omitted)).
110 Shaw, 36 F.4th at 1016.
111 Complaint ¶¶ 54–55.
112 See Wood, 106 F.3d at 948 (stating that if “prior criminal involvement” alone provided reasonable suspicion “any
person with any sort of criminal record could be subjected to a Terry-type investigative stop by a law enforcement
officer at any time without the need for any other justification at all”) (citation modified)).
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 13 of 19

14
facts as pled here is necessary to satisfy qualified immunity at this stage. Accordingly, Kummer
has plausibly alleged Officer Embley violated her constitutional rights.113
B. 	Kummer’s Right Is Clearly Established.
“A right is clearly established when a Supreme Court or Tenth Circuit decision is on
point, or if the clearly established weight of authority from other courts shows that the right must
be as the plaintiff maintains.”114 Thus, it must be “clear to a reasonable officer that his conduct
was unlawful in the situation.”115 “While the Supreme Court has repeatedly told courts not to
define clearly established law at a high level of generality, it has also explained that officials can
still be on notice that their conduct violates established law even in novel factual
circumstances.”116 The “analysis is not a scavenger hunt for prior cases with precisely the same
facts, and a prior case need not be exactly parallel to the conduct here for the officials to have
been on notice of clearly established law.”117 “The salient question is whether the state of the
law at the time of an incident provided fair warning to the defendants that their alleged conduct
was unconstitutional.”118 Additionally, “[i]n determining whether the plaintiff has met its burden
of establishing a constitutional violation that was clearly established, we will construe the facts
in the light most favorable to the plaintiff as the nonmoving party.”119
113 See Truman, 1 F.4th at 1234–35, 1239.
114 Id. at 1235 (internal quotation marks and citation omitted).
115 Vasquez v. Lewis, 834 F.3d 1132, 1138 (10th Cir. 2016) (quoting Maresca v. Bernalillo Cnty., 804 F.3d 1301,
1308 (10th Cir. 2015)).
116 Shaw, 36 F.4th at 1013 (quoting Quinn v. Young, 780 F.3d 998, 1005 (10th Cir. 2015)) (citation modified).
117 Reavis Est. of Coale v. Frost, 967 F.3d 978, 992 (10th Cir. 2020) (quoting Est. of Smart v. City of Wichita, 951
F.3d 1161, 1168 (10th Cir. 2020)).
118 Id. (quoting Tolan v. Cotton, 572 U.S. 650, 656 (2014)) (citation modified); see also Shaw, 36 F.4th at 1013
(“Ultimately, [the court] must assess whether existing precedent has placed the statutory or constitutional question
beyond debate.” (citation modified)).
119 Reavis Est., 967 F.3d at 992 (quoting Thomas v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009)).
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 14 of 19

15
Here, Kummer’s Fourth Amendment right has been recognized by the Supreme Court
and the Tenth Circuit. The Supreme Court has clearly established that a traffic stop “becomes
unlawful if it is prolonged beyond the time reasonably required to complete the mission of
issuing a ticket for the violation.”120 An officer’s mission during a traffic stop is “determining
whether to issue a traffic ticket” and conducting “ordinary inquiries incident to the traffic
stop.”121 Without independent reasonable suspicion, investigating other crimes is an
unconstitutional detour from that mission.122
In Rodriguez, a police officer pulled over a driver who had veered onto the highway
shoulder.123 After running a records check and issuing a warning, the officer instructed the
driver to exit the vehicle until another officer arrived and a dog sniff could occur.124 The
Supreme Court held the drug sniff was not “part of the officer’s traffic mission.”125 The Tenth
Circuit has clearly established Rodriguez means a traffic stop becomes unlawful as soon as an
officer “(1) diverts from the traffic-based mission for the stop to investigate ordinary criminal
conduct, (2) in a way that prolongs (i.e., adds time to) the stop, and (3) the investigative detour is
unsupported by any independent reasonable suspicion.”126
In Shaw v. Schulte, the Tenth Circuit applied this standard at the summary judgment stage
to facts similar to the facts here.127 There, an officer conducted a traffic stop for speeding.128
120 Rodriguez, 575 U.S. at 350 (citation modified).
121 Id. at 355 (quoting Illinois v. Caballes, 543 U.S. 405, 408 (2005)) (citation modified).
122 See id. at 356–58.
123 Id. at 351.
124 Id. at 352.
125 Id. at 356.
126 Frazier, 30 F.4th at 1173 (citation modified).
127 Shaw, 36 F.4th at 1010–12.
128 Id. at 1010.
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 15 of 19

16
When the officer called for a K9 sweep, he diverted from the traffic-based mission and
prolonged the stop to investigate drug trafficking.129 The Circuit evaluated the facts available to
the officer at the time he extended the stop and concluded reasonable suspicion did not exist.130
The court found four factors weighed in favor of reasonable suspicion but each was assigned
minimal value: (1) the amount of time it took the driver to stop, (2) the destination of the vehicle,
(3) the vehicle was not registered to the driver but to his father, and (4) the driver had a drug
trafficking arrest from ten years prior.131 With respect to the prior arrest, the Circuit recognized
“previous criminal history may also weigh in favor of an officer’s reasonable suspicion of illegal
activity,” but assigned the prior arrest minimal weight because it occurred nearly ten years prior
to the stop.132 Despite four factors weighing in favor of reasonable suspicion, the court
concluded the officer was not entitled to qualified immunity at the summary judgment stage.
The court finds Shaw on-point to the facts here. Both cases involve a traffic stop: Shaw
for speeding and Kummer for a registration and license issue. Both cases involve a paperwork
issue: Shaw’s car was not registered to him, and Kummer’s vehicle was uninsured and registered
to a driver with a suspended license. Both cases involve a driver with a prior drug charge. Shaw
clearly established that its set of facts amounted to a constitutional violation.
Officer Embley argues Shaw did not put him on notice of the constitutionality of his
actions because the facts are sufficiently dissimilar.133 He first argues the type of traffic stop
distinguishes this case from Shaw because “speeding alone does not suggest impairment, while
129 Id. at 1010, 1016.
130 Id. at 1014–16.
131 Id. at 1016.
132 Id.
133 Reply at 6–7.
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 16 of 19

17
weaving in and out does.”134 But, as explained above,135 Kummer alleges she drove safely
within the lines and the stop was related only to the license and insurance issues.136 Because the
court is limited to the allegations in the complaint at the motion to dismiss stage,137 any alleged
weaving cannot distinguish this case from Shaw. Officer Embley does not otherwise argue that a
stop for speeding is meaningfully different than a stop related to license and insurance issues.
Second, Officer Embley argues Shaw is distinguishable because there, the court assigned
minimal weight to the registration issue where the driver had a clear connection to the vehicle’s
registered owner but here, Kummer “was not related to the registered owner and there was no
evidence connecting her to the vehicle.”138 Again this fact was not alleged in the Complaint and
thus Officer Embley cannot rely on it to distinguish this case from Shaw.139
Finally, Officer Embley argues Shaw is distinguishable because Shaw provided his
driver’s license and insurance card and had a criminal drug charge from ten years prior, while
Kummer did not have her license on her and she had prior charges involving controlled
substances.140 While these differences do exist, the court does not view them as sufficient to
render Shaw inapplicable. Finding otherwise would send Kummer on “a scavenger hunt for
prior cases with precisely the same facts,” which the Tenth Circuit has instructed the standard
does not require.141 Shaw is sufficiently analogous to the facts—as alleged in the Complaint—to
134 Id. at 6.
135 See supra nn. 96–97 & accompanying text.
136 See Complaint ¶¶ 28, 34–36; Opposition at 9–10.
137 See Kaven, 756 F.3d at 1194.
138 Reply at 6.
139 See supra nn. 98–101 & accompanying text.
140 Reply at 6–7.
141 Reavis Est., 967 F.3d at 992.
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 17 of 19

18
provide fair warning to Officer Embley that his alleged conduct was unconstitutional.142 After
Shaw, the “contours [of the right] are sufficiently clear that a reasonable officer would
understand that what he is doing violates that right.”143 Thus, at the time of the traffic stop, it
was clearly established that Officer Embley did not have “reasonable suspicion to remove Ms.
Kummer from the car and question her about drug use” based on the facts alleged.144
Accordingly, Officer Embley is not entitled to qualified immunity at this stage.
II. 	The Utah Constitutional Claim Also Survives.
Kummer also brings a claim that Officer Embley violated her rights under the Utah
Constitution.145 Officer Embley argues the Utah claim is coextensive with the federal
constitutional claim.146 Since the federal constitutional claim survives, the state constitutional
claim also survives.
CONCLUSION
For the reasons explained above, the court DENIES the Motion to Dismiss.147
142 Id. (citation modified) (quoting Tolan, 572 U.S. at 656); see also Shaw, 36 F.4th at 1013 (“Ultimately, [the court]
must assess whether existing precedent has placed the statutory or constitutional question beyond debate.” (citation
modified)).
143 Vasquez, 834 F.3d at 1139 (reversing summary judgment and holding officer not entitled to qualified immunity
when prolonged a traffic stop related to the visibility of a temporary tag to conduct a K9 search without reasonable
suspicion).
144 Motion at 3.
145 Complaint ¶¶ 162, 165.
146 Motion at 18. Officer Embley argues that if Kummer identifies a more expansive right under the Utah
Constitution than the right guaranteed by the U.S. Constitution, her claim fails under Spackman ex rel. Spackman v.
Board of Education. Id. at 18–19 (citing 16 P.3d 533, 538 (Utah 2000)). The court declines to reach this argument.
Parties agree the federal right is either coextensive or narrower than the state right. Because the federal claim
survives, the state claim necessarily survives too.
147 Dkt. 13.
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 18 of 19

19
SO ORDERED this 19th day of February, 2026.
BY THE COURT:
________________________________________
ROBERT J. SHELBY
United States District Judge
Case 2:25-cv-00548-RJS-CMR Document 18 Filed 02/19/26 PageID.<pageID>
Page 19 of 19