118 F.3d 1416 (10th Cir. 1997), 95-4178, Foote v. Spiegel

Docket Nº:95-4178, 95-4179.
Citation:118 F.3d 1416
Party Name:Kristin FOOTE, Plaintiff-Appellee, v. Roger SPIEGEL and Robert Howe, Defendants-Appellants, and Jeffrey L. Graviet and Eric McPherson, Defendants, Weber County Sheriff's Department, Movant. Kristin FOOTE, Plaintiff-Appellant, v. Roger SPIEGEL, Robert Howe, Jeffrey L. Graviet and Eric McPherson, Defendants-Appellees, Weber County Sheriff's Departmen
Case Date:July 08, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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118 F.3d 1416 (10th Cir. 1997)

Kristin FOOTE, Plaintiff-Appellee,


Roger SPIEGEL and Robert Howe, Defendants-Appellants,


Jeffrey L. Graviet and Eric McPherson, Defendants,

Weber County Sheriff's Department, Movant.

Kristin FOOTE, Plaintiff-Appellant,


Roger SPIEGEL, Robert Howe, Jeffrey L. Graviet and Eric

McPherson, Defendants-Appellees,

Weber County Sheriff's Department, Movant.

Nos. 95-4178, 95-4179.

United States Court of Appeals, Tenth Circuit.

July 8, 1997

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Dan R. Larsen, Assistant Attorney General (Rebecca D. Waldron, Assistant Attorney General, and Jan Graham, Attorney General, with him on the brief), Salt Lake City, UT, for defendants-appellants.

W. Andrew McCullough, of McCullough, Jones & Ivins, Orem, UT (Jensie L. Anderson, of American Civil Liberties Union of Utah Foundation, Inc., Salt Lake City, UT, with him on the brief), for plaintiff-appellee.

Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Roger Spiegel and Robert Howe, Utah highway patrol officers, appeal the partial summary judgment denying them qualified immunity against Kristin Foote's claims under 42 U.S.C. § 1983 that she was illegally detained and subjected to a strip search. Foote cross-appeals the portions of the summary judgment order adverse to her. We dismiss Foote's cross-appeal and a portion of defendants' appeal for lack of jurisdiction, reverse in part the district court's denial of qualified immunity for the detention, affirm the denial of qualified immunity for the strip search, and remand for further proceedings.


Foote was driving her vehicle north in the left lane of Utah Highway 89 (a four-lane undivided highway with a speed limit of 55 mph and no posted minimum speed) in the early afternoon of May 8, 1994. Her four-year-old daughter was in the back seat, and a friend, Jarvis Latteier, was in the front passenger seat. Latteier had very long blond hair, and tattoos were visible on his arms because he was wearing a tank top. Foote had just bought the vehicle and it had no license plates, but it did have a temporary paper registration permit on the left rear window.

Howe was driving his patrol car north in the right lane of Highway 89. As Foote's vehicle began to pass the patrol car, Howe noticed it had no front license plate. Howe slowed his patrol car and, as Foote's vehicle began to pass, he looked through the vehicle's rear window at the back of the temporary registration. Howe testified he could see the handwritten date on the registration which had bled through the paper and he thought it might have been altered. Foote's vehicle slowed and Howe's suspicions increased. Howe again slowed his patrol car and pulled it into the left lane behind Foote's vehicle and started the video camera mounted on the dashboard of the patrol car.

As the videotape started, Howe stated Foote slowed her vehicle to 40 mph, that she would not move out of the left lane, and that traffic was piling up behind her vehicle. The district court found the tape showed Foote was keeping up with traffic. The videotape indicates there is an intersection with traffic lights and a left turn lane, which could provide a reason to slow down, but Foote did not turn left. Howe stated Foote increased the speed of her vehicle to 55 mph after she went past the intersection. Howe turned on the patrol car's overhead lights. Foote did not respond for several seconds, but she eventually activated her vehicle's right turn signal, crossed the centerline on her left, pulled to the right through a gap in the traffic, and stopped her vehicle on the right shoulder of the highway. Howe noticed Latteier was not wearing a seat belt.

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Howe stopped his patrol car behind Foote's vehicle and approached Foote's vehicle on foot. He hesitated momentarily at the rear of Foote's vehicle before walking to the passenger side of Foote's vehicle to ask for Foote's driver's license and for Latteier's identification. He then walked to the back of the vehicle and looked at the temporary registration. He then walked to the driver's side of the vehicle and told Foote he had stopped her because he thought the registration might have been altered, but that upon closer inspection it was fine. Howe said, "Another thing, you were in the left hand lane and you start going 40 miles an hour, it starts causing problems you know what I mean, I mean traffic was piled up behind us." Appellant's append. III at 446. Foote responded, "My car doesn't go up hill very well." Id. Howe replied, "No, you weren't on a hill." Id. The tape confirms Foote's vehicle was not going uphill while traveling in the left lane.

Howe observed that Foote's eyes were bloodshot and that her voice and response were slow. Her response to Howe's initial comment is barely audible on the tape, but the remainder of the tape shows her speech was markedly slow. These factors, plus the driving pattern and the absence of an odor of alcohol, led Howe to suspect Foote was under the influence of drugs, specifically marijuana. Howe asked Foote to get out of the vehicle and asked if she had problems with her eyes. She said she had lost her glasses. Howe administered the Horizontal Gaze Nystagmus test, which Foote passed, and the convergence test, which she failed. These test results are consistent with marijuana use. Howe had no formal training or authorization to use the tests, but the evidence is undisputed that he administered them correctly. Howe asked Foote to open her mouth and noted her tongue appeared to have a greenish tint, which is considered a further sign of marijuana use. According to Foote's expert, however, a brownish tint to the tongue is a sign of marijuana use and green debris in the mouth is another sign, but a greenish tint is not a sign of marijuana use.

Howe told Foote he believed she was under the influence of marijuana and he called Spiegel, a drug recognition expert. Spiegel arrived approximately fifteen minutes later and Howe told him Foote had been driving her vehicle too slowly in the left lane, and that she displayed slow speech and slow responses, and a slow and lethargic demeanor and driving pattern. Howe related to Spiegel the results of the eye convergence test, that there was an absence of alcohol odor, and that he suspected Foote had been driving while under the influence of marijuana. Spiegel, who had been trained to administer the eye tests, repeated the tests with the same results. He also observed the greenish tint on Foote's tongue. He administered standard field sobriety tests and concluded Foote failed them. The tape shows Foote had obvious difficulty keeping her balance during the tests. However, Foote submitted an affidavit from a former police officer stating she had viewed the tape and in her opinion Foote had passed the field sobriety tests. Spiegel concluded Foote was under the influence of marijuana and arrested her. Officers searched her vehicle and Latteier, but they found no drugs.

Foote was taken to the Davis County Jail, where she was booked for driving while under the influence. She tested negative for alcohol on the breathalyzer. Her heart rate and blood pressure were normal, which is inconsistent with marijuana use although it does not rule it out. Her pupils were slightly dilated, which is consistent with marijuana use. A thorough...

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