Felders v. Malcom

• Decision Date: 20 June 2014
• Docket Number: No. 12–4154.,12–4154.
• Citation: 755 F.3d 870
• Parties: Sherida FELDERS; Elijah Madyun, a minor, by and through LaToya SMEDLEY, his mother, Delarryon Hansend, Plaintiffs–Appellees, v. Jeff MALCOM, an Iron County Deputy and K–9 Unit Officer, Defendant–Appellant. and Brian Bairett, a Utah Highway Patrol Trooper, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

755 F.3d 870

Sherida FELDERS; Elijah Madyun, a minor, by and through LaToya SMEDLEY, his mother, Delarryon Hansend, Plaintiffs–Appellees,

v. Jeff MALCOM, an Iron County Deputy and K–9 Unit Officer, Defendant–Appellant.andBrian Bairett, a Utah Highway Patrol Trooper, Defendant.

No. 12–4154.

United States Court of Appeals, Tenth Circuit.

June 20, 2014.

Frank D. Mylar, Mylar Law, P.C., Cottonwood Heights, UT, for Appellant.

Robert B. Sykes (Alyson E. Carter and J.D. Lauritzen with him on the brief), Robert B. Sykes & Associates, P.C., Salt Lake City, UT, for Appellees.

Before TYMKOVICH, SEYMOUR, and GORSUCH, Circuit Judges.

TYMKOVICH, Circuit Judge.

A Utah state trooper stopped Sherida Felders for speeding while on a trip from California to Colorado. Based on Felders's demeanor and several perceived inconsistences in the stories of Felders and her passengers as to why they were traveling to Colorado, the trooper, Brian Bairett, asked to search Felders's car for drugs. After Felders refused, Bairett called for assistance from K–9 Unit officer Jeff Malcom to conduct a dog sniff on Felders's Jeep. The ensuing two-hour search yielded no drugs.

Felders and her passengers, Elijah Madyun and Delarryon Hansend, subsequently filed suit against Bairett and Malcom under 42 U.S.C. § 1983. They alleged, among other claims, that both Bairett and Malcom unlawfully searched Felders's car in violation of the Fourth Amendment. Malcom moved for summary judgment on the Fourth Amendment unlawful search claim based on qualified immunity. ¹

The district court denied Malcom's motion for summary judgment. The district court found as a matter of law that Malcom could not establish probable cause to search the car prior to conducting the dog sniff and that material facts were in dispute regarding (1) whether Malcom's canine, Duke, alerted prior to jumping into the vehicle; and (2) whether Malcom facilitated Duke's entry into the vehicle prior to establishing probable cause.

Malcom filed this interlocutory appeal from the district court's denial of qualified immunity. He argues that the district court erred in denying his motion for summary judgment because he had probable cause to search the car prior to conducting the dog sniff and, alternatively, that the law did not clearly establish that his actions during the sniff violated the Fourth Amendment.

We agree with the district court that Malcom did not have probable cause to search the vehicle prior to conducting the sniff. The information Bairett provided Malcom at most established a reasonable suspicion justifying the detention, and Malcom did not independently develop additional facts prior to conducting the sniff that could support a search. As to the permissibility of Malcom's actions during the dog sniff, genuine issues of material fact regarding Duke's alert and Malcom's facilitation of Duke's entry into the vehicle preclude us from finding that Malcom is entitled to qualified immunity as a matter of law.

Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court's summary judgment decision denying Malcom qualified immunity.

I. Background

On a November morning, Trooper Bairett stopped Sherida Felders, a 54–year–old woman, on Utah's I–15 for speeding. During the traffic stop, Bairett made several observations about Felders. According to Bairett, she was nervous, she would not maintain eye contact with him, a strong odor of air freshener was coming from her vehicle, and affixed to her car was a license plate ring with “Jesus” written on it. Based on these observations, Bairett becamesuspicious that Felders was carrying drugs in her car.

After issuing Felders a speeding ticket, Bairett asked to speak with her two passengers, Elijah Madyun and Delarryon Hansend, ages 17 and 18. Madyun and Hansend were friends of Felders's grandson. Based on several perceived inconsistencies between the passengers' narratives and Felders's story regarding the details of their trip, Bairett concluded he had a reasonable suspicion that Felders was transporting drugs. He then directly asked Felders if she had cocaine in the car. Felders replied that she did not. She also denied having other drugs in the vehicle. Following this exchange, Bairett asked Felders if he could search her car. Felders refused. Bairett then called for a K–9 unit to bring a dog to conduct a sniff of the car. Deputy Malcom responded to Bairett's call and arrived at the site of the traffic stop approximately thirty minutes later.

When Malcom arrived, Bairett told him the facts of the encounter and that Bairett believed he had probable cause to search the car for drugs:

I wouldn't have called you out on this one if I wasn't pretty dang sure there's something going on. This lady—you know, I walk up to the car and I see air fresheners in the center console and ... I start talking to her, you know, just “So where, you heading to?” “Oh going to Colorado,” blah, blah, blah.

You know, she won't look at me when she's talking to me, she looks down, looks away (inaudible) going on here. That's what we're here to (inaudible).

Two kids in the car, about 20, with tats on them.... And I go up—she says—I says, “Who are these two in the car,” and she says, “My grandkid's friends.” I says, “You're [taking] your grandkids' friends to Colorado? What's the matter with your grandkids going to Colorado” (inaudible). “Oh, they already flew out.” “So you're just taking your grandkids' friends to meet them up there?” “Yeah.” “Okay.”

So I go up and talk to them and say, “So who's this lady back here?” “Oh, that's our cousin.” I asked her when did they plan on coming back to California. She says, “Oh, we're going to come back—we're going to stay until the 1st of December, through the holiday.” Okay. So I go up and talk to them. “Oh, we're coming home Sunday—this Sunday.” ... He goes, “Oh [the grandkids] live in Colorado ... But she said they already flew out. Just a whole bunch of inconsistencies.

So I come back to her and I said ... “Ma'am, do you have cocaine in that vehicle?” She goes ... (inaudible) ... and face rubbing and ... so I go through the whole thing and she just refuses to answer me on the cocaine question.

* * *

You know, the—all the symptoms are there, just huge symptoms. So if we don't find anything—I said, “So there's nothing illegal in the vehicle?” And she says, “No.” I said, “So you won't mind if I search the vehicle, then, will you?” She goes, “No, you can't search my vehicle.” I said, “Well, I've got enough here to detain you until a dog gets here.”

I basically—to me, I've got probable cause to search the vehicle without her permission or not, so I figured the dog would be the best route to go right now.

Aplt. App. 204. The conversation and subsequent search were captured by the patrol car's dashboard video camera.

After hearing the story, Malcom asked Bairett to “pull the two kids out of the car.” Id. Bairett responded, “Yeah, that's what I was planning on doing. When they get out of the car, I'll leave the doors open.” Id. The video footage taken from Bairett's car depicts Bairett opening the passenger doors and physically preventing the rear passenger from closing the door. Bairett also directed Felders to remove her Chihuahua from the rear hatch of the Jeep. In doing so, she left the back hatch open. Prior to initiating the dog sniff, Malcom commented to Bairett, “[N]ice of them to leave the door open for you,” to which Bairett responded, “Yeah it was, wasn't it?” Aple. Supp. App. 14.

Malcom then conducted the dog sniff on Felders's car. After performing a pre-stimulation routine to prep the dog, Malcom took Duke on a leash to the right rear bumper and backed along the right side of the car, leaving about one foot of space between his body and the car. Duke almost immediately jumped in the vehicle through the open right rear passenger door, but the video does not show whether Duke made any sounds or movements before jumping into the vehicle. Duke proceeded to the rear of the car and appeared to be “in odor,” or taking deep breaths of air to pinpoint an odor. Aple. Supp. App. 32. Duke then alerted in the center console, which contained two bags of jerky. After removing the jerky, Malcom performed the search again. Duke alerted again between the seat and center console, and eventually sat down and indicated by the driver's door.

The officers then searched the vehicle for several hours but found no drugs.

II. Analysis

Malcom argues that the district court erred in denying him qualified immunity because (1) he had probable cause to search the vehicle prior to conducting the dog sniff and, alternatively, (2) it was not clearly established law that his actions during the dog sniff violated the plaintiffs' Fourth Amendment rights.

We agree with the district court that Malcom did not have probable cause to search the car prior to Duke's alert and that the law was then clearly established that, absent probable cause, facilitating a dog's entry into a vehicle during a dog sniff constitutes an unconstitutional search. Taking the facts in the light most favorable to Felders, we conclude that fact questions exist regarding the timing of Duke's alert and Malcom's possible facilitation prior to an alert. As a result, we affirm the district court's decision to deny Malcom summary judgment on qualified immunity grounds.

A. Qualified Immunity Standard of Review

We review the district court's qualified immunity determinations de novo, viewing the evidence in the light most favorable to the plaintiff as the nonmoving party. Mick v. Brewer, 76 F.3d 1127, 1134–35 (10th Cir.1996); Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir.2012). To defeat an assertion of qualified immunity, the plaintiff bears the burden of showing both (1) a violation of a constitutional right; and (2) that the constitutional right was clearly established at the time of the violation. Kaufman, 697 F.3d at 1300. The burden then shifts...