Wilder v. Turner

• Decision Date: 12 June 2007
• Docket Number: No. 06-1092.,06-1092.
• Parties: John S. WILDER, Plaintiff-Appellee, v. Kevin P. TURNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

490 F.3d 810

John S. WILDER, Plaintiff-Appellee, v. Kevin P. TURNER, Defendant-Appellant.

No. 06-1092.

United States Court of Appeals, Tenth Circuit.

June 12, 2007.

John W. Suthers, Attorney General; Daniel D. Domenico, Solicitor General; Frederick Haines, First Assistant Attorney General; Patricia D. Herron, Assistant Attorney General; Kathleen Spalding, Assistant Attorney General; Denver, CO, for Defendant-Appellant.

Paul Grant, Centennial, CO, for Plaintiff-Appellee.

Before KELLY, BALDOCK, and GORSUCH, Circuit Judges.^*

BALDOCK, Circuit Judge.

This civil rights action arises out of a traffic stop and arrest of Plaintiff for allegedly driving under the influence of alcohol (DUI). We are asked to decide whether an officer has probable cause to arrest a driver that refuses to submit to a roadside sobriety test after the officer observes certain indicia of alcohol consumption. The district court said no and denied the officer qualified immunity. A jury subsequently returned a verdict against the officer. We have jurisdiction pursuant to 28 U.S.C. § 1291. We hold the officer had probable cause to arrest the driver on suspicion of DUI, and is, therefore, entitled to qualified immunity.

I.

The relevant historical facts are undisputed. On the evening of November 30, 2001, Defendant Kevin Turner, a Colorado highway patrolman, stopped Plaintiff John Wilder's vehicle for traveling 57 mph in a 50 mph zone. Officer Turner approached the vehicle, asked Wilder for his documentation, and explained the reason for the stop. In the course of the initial encounter, Officer Turner noticed an odor of alcohol on Wilder's breath and observed Wilder had pinkish and watery eyes, a flushed face, and spoke unusually slow and deliberately. Officer Turner asked Wilder how much alcohol he had to drink. Wilder candidly admitted he had a glass of wine ten to fifteen minutes earlier. The officer asked Wilder if he had anything else to drink. Wilder responded he did not. Initially, Wilder's demeanor was argumentative, but eventually became cooperative.¹

Officer Turner asked Wilder to exit the vehicle and walk to the rear. The officer noticed Wilder's exit was normal, and that Wilder did not have difficulty walking. The officer also noticed Plaintiff's clothing was orderly. The officer asked Wilder if he would perform a roadside sobriety test. Wilder declined and asked the officer: "What have I done to deserve this." The officer explained he observed certain indicia of alcohol consumption and needed to investigate further. Officer Turner asked Wilder a second time if he was willing to perform a roadside sobriety test. Wilder replied: "I really don't want to." The officer then arrested Wilder on suspicion of DUI.² At that point, Wilder told the officer he had a weapon in his vehicle for which he had a permit. While searching the vehicle, the officer found a half-empty, single-serving bottle of wine on the front passenger seat, which Wilder covered with newspapers before the stop.

After Officer Turner advised Wilder of his rights, Wilder asked to be given a blood alcohol test.³ Officer Turner drove Wilder to a nearby medical center where he received a blood test. The officer charged Wilder with DUI in violation of Colo.Rev.Stat. § 42-4-1301(1)(a), as well as unlawful possession of a weapon while intoxicated in violation of Colo.Rev.Stat. § 18-12-106(1)(d). The officer released Wilder after Wilder posted a personal recognizance bond. The blood test, which the officer received a few days later, revealed Wilder's alcohol-blood content was .014%, well below the level at which intoxication is presumed under Colorado law. As a result, the Rio Grande County Court dismissed all charges against Plaintiff.

Wilder thereafter brought this 42 U.S.C. § 1983 action against Officer Turner alleging the officer violated his Fourth Amendment right to be free from unreasonable searches and seizures when the officer (1) arrested him without probable cause, (2) seized his gun without probable cause, and (3) presented charges to the district attorney without probable cause. Officer Turner moved for summary judgment asserting a defense of qualified immunity. The officer argued he had probable cause to arrest Plaintiff because he observed several indicia of excessive alcohol consumption, and because Plaintiff refused to submit to the roadside sobriety test. The district court denied the officer's motion.

The court relied extensively on the Colorado Supreme Court's decision in People v. Carlson, 677 P.2d 310 (Colo.1984), to conclude "a reasonable peace officer in [Officer] Turner's position would not believe he had probable cause under Colorado law to arrest Plaintiff for DUI." (emphasis added). Carlson held a roadside sobriety test constitutes a full search and, therefore, before an officer can lawfully ask an individual to submit to a roadside sobriety test, the officer must have probable cause to believe the driver is under the influence of alcohol. See Carlson, 677 P.2d at 317-318. The district court explained the indicators of alcohol consumption Officer Turner observed did not, as a matter of Colorado law, create probable cause to arrest. Under Carlson, the court explained, the indicators Officer Turner observed were not enough to establish probable cause, but rather only reasonable suspicion. The court further explained that refusing to take a field sobriety test cannot create probable cause to arrest because under Carlson, an officer may lawfully ask an individual to perform a field sobriety test only if the officer has probable cause to believe the suspect is intoxicated.

Following a two-day trial, a jury returned a verdict in Officer Turner's favor. Wilder timely moved for a new trial pursuant to Fed.R.Civ.P. 59(a) arguing Officer Turner's counsel engaged in persistent misconduct that affected and prejudiced the jury. The court agreed and granted a new trial. The court cursorily explained that "numerous deviations of defense counsel from acceptable norms are so flagrant that I am left with the abiding sense that the Plaintiff did not receive a fair trial." Prior to the second trial, Officer Turner renewed his motion for summary judgment again asserting a defense of qualified immunity. The court, however, denied the motion as untimely. The case proceeded to trial.

At the close of Plaintiff's case and again at the close of all the evidence, Officer Turner moved for a judgment as a matter of law under Fed.R.Civ.P. 50. The officer again argued that during the stop he observed several indicators of excessive alcohol consumption, and that his observations coupled with Plaintiff's refusal to take a field sobriety test amply supported a finding of probable cause to arrest Wilder for DUI. The court denied the motion. The court explained the evidence on the record, such as Wilder's ability to exit the vehicle and walk normally, his cooperative attitude, and his orderly clothes, could support a finding the officer lacked probable cause to arrest Wilder for DUI.

This time, the jury returned a verdict for Wilder and awarded him $1 million dollars in damages. Officer Turner again moved for a judgment as a matter of law or in the alternative for relief from judgment or for a new trial pursuant to Fed. R.Civ.P. 50(b) and 59. Once more the officer asserted a defense of qualified immunity arguing he had probable cause to arrest Wilder based on his observations and Plaintiff's refusal to cooperate with the investigation. The court denied the officer's post-trial motions reasoning the jury could reasonably infer a lack of probable cause from the evidence and that the officer arrested Plaintiff for an unlawful reason, i.e., refusing to take a roadside sobriety test. This appeal followed.

II.

Whether Officer Turner is entitled to qualified immunity is a legal question we review de novo. See Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir.2007) (en banc). When an officer asserts a defense of qualified immunity, the plaintiff bears a heavy two-part burden. See id. at 1114. Initially, the plaintiff must show the officer's conduct violated a constitutional right: "A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If the officer's conduct did not violate a constitutional right, the inquiry ends and the officer is entitled to qualified immunity. See id.

Throughout the course of this litigation, Plaintiff's position has been that Officer Turner's actions violated his Fourth Amendment right to be free from unreasonable seizures because the officer's observations and Plaintiff's refusal to take a field sobriety test were insufficient to establish probable cause to arrest him on suspicion of DUI. Agreeing with Plaintiff, the district court denied Officer Turner's qualified immunity defense at each stage of the litigation. Deriving the legal framework for its probable cause determination exclusively from Colorado case law, the court concluded (1) the officer's observations were insufficient to establish probable cause to arrest for allegedly driving while under the influence, and (2) because probable cause must exist before an officer may lawfully ask an individual to participate in a field sobriety test, refusing to take the test cannot itself establish probable cause to arrest.

A.

When a warrantless arrest is the subject of a § 1983 action, the defendant is entitled to qualified immunity if probable cause existed to arrest the plaintiff. See e.g., Atwater v. Lago Vista, 532 U.S. 318, 322, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) ("[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the ...