Felders v. Malcom
2014 U.S. App. LEXIS 11627
10th Cir.2014Background
- Utah trooper Bairett stopped Sherida Felders for speeding; he noted nervousness, an air freshener odor, and inconsistent travel stories from Felders and two teenage passengers, then asked to search the vehicle; Felders refused.
- Bairett called K-9 officer Jeff Malcom; Malcom arrived ~30 minutes later and, after Bairett told him the facts and that he believed he had probable cause, prepared his dog Duke to perform a sniff.
- Bairett opened rear passenger doors and prevented one passenger from closing a door; Felders removed a Chihuahua from the hatch leaving it open; video shows doors remained open before the sniff.
- During the sniff Duke almost immediately jumped into the vehicle through the open rear door, investigated the center console (finding jerky), alerted at multiple locations, and the officers conducted a two-hour search that found no drugs.
- Felders and passengers sued under 42 U.S.C. § 1983 alleging Fourth Amendment unlawful search; Malcom sought summary judgment based on qualified immunity, which the district court denied; Malcom appealed interlocutorily.
- The Tenth Circuit reviewed de novo, assumed disputed facts in plaintiffs’ favor, and affirmed denial of qualified immunity: Malcom lacked probable cause before the sniff, and factual disputes about whether Malcom (or Bairett with Malcom’s knowledge) facilitated Duke’s entry precluded resolving the facilitation/alert issue as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officers had probable cause to search the vehicle prior to the dog’s alert | Bairett’s observations and passengers’ inconsistent stories supported probable cause to search for drugs | Malcom contends he reasonably relied on Bairett’s assertion of probable cause (collective knowledge/good-faith reliance) | No. Facts known supported at most reasonable suspicion; reliance on Bairett was not objectively reasonable, so no probable cause |
| Whether officer had probable cause to search for obstruction of justice | Felders’ inconsistent statements showed intent to hinder investigation (obstruction) | Malcom argues those inconsistencies justified an independent basis for probable cause | No. Inconsistencies were minor/miscommunications and did not show intent to obstruct; no probable cause |
| Whether facilitating a dog’s entry into a vehicle before probable cause is an unconstitutional search | Plaintiffs: facilitating entry converts an otherwise nonsearch dog sniff into a search of the interior without probable cause | Malcom: law unclear as applied; argues lack of notice re: steps required before sniff and disputes over whether he facilitated entry | Yes. It was clearly established that officer facilitation of a dog’s entry into a vehicle before probable cause violates the Fourth Amendment |
| Whether Malcom is entitled to qualified immunity given disputed facts about Duke’s pre-entry alert and possible facilitation | Plaintiffs: disputed facts (timing of alert; Malcom’s knowledge/participation in doors staying open) defeat immunity | Malcom: video and circumstances show no facilitation by him and Duke alerted of its own accord, so immunity should apply | Denied. Genuine issues of material fact remain about (1) whether Duke alerted before entering and (2) whether Malcom knew of or participated in facilitating entry, so qualified immunity cannot be resolved for him as a matter of law |
Key Cases Cited
- Illinois v. Caballes, 543 U.S. 405 (Supreme Court) (dog sniff of exterior of vehicle during lawful traffic stop is not a search)
- United States v. Engles, 481 F.3d 1243 (10th Cir.) (dog sniff of vehicle exterior does not require reasonable suspicion)
- United States v. Ludwig, 641 F.3d 1243 (10th Cir.) (positive drug-dog alert generally supplies probable cause to search vehicle)
- United States v. Winningham, 140 F.3d 1328 (10th Cir.) (officer facilitation of dog entry into vehicle can make the entry an unconstitutional search)
- United States v. Vazquez, 555 F.3d 923 (10th Cir.) (no violation where dog’s entry was instinctual and officers did not ask driver to open entry point)
- United States v. Stone, 866 F.2d 359 (10th Cir.) (no facilitation violation where owner opened hatch and no evidence officers encouraged dog to enter)
- Messerschmidt v. Millender, 132 S. Ct. 1235 (Supreme Court) (qualified immunity protects objectively reasonable mistakes of law; objective reasonableness governs good-faith reliance)