36 F.4th 1006
10th Cir.2022Background
- Two roadside stops on I‑70 in western Kansas were extended to wait for K‑9 units: Trooper Schulte stopped Blaine and Samuel Shaw; Trooper McMillan stopped Joshua Bosire.
- Schulte stopped the Shaws for speeding; Blaine had a prior (2009) drug‑distribution arrest, declined consent to search, Schulte requested a K‑9, and the dog alerted after ~25 minutes; search revealed a Colorado medical marijuana card; Shaws released after photocopying.
- McMillan smelled marijuana near a Love’s, observed Bosire speaking with another man, later stopped Bosire for speeding in a rental Altima; Bosire produced rental paperwork, invoked his right to remain silent, refused consent; McMillan held Bosire ~22 minutes for a K‑9 sweep and the dog did not alert.
- Plaintiffs sued under 42 U.S.C. § 1983 alleging unlawful seizure; both troopers moved for summary judgment based on qualified immunity; the district court denied the motions and the troopers appealed interlocutorily.
- The Tenth Circuit held: (1) the Shaws may proceed against Trooper Schulte for the detention between Blaine’s refusal of consent and the dog’s alert (summary‑judgment denial affirmed as to that period), but Schulte is entitled to judgment as to detention after the dog alerted; (2) Bosire may proceed against Trooper McMillan (summary‑judgment denial affirmed), but Schulte is entitled to qualified immunity as to Bosire’s claim (reversed as to Schulte).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Schulte had arguable reasonable suspicion to extend the Shaws’ stop after Blaine refused consent and before the K‑9 arrived | Shaws: facts (prior arrest, vehicle “lived‑in,” nervous passenger, travel to Denver, registration not in driver’s name) supported reasonable suspicion | Schulte: those factors cumulatively justified brief investigative detention to await K‑9 | Denied summary judgment for Schulte — disputed fact issues and the undisputed factors (mostly minimal weight) do not establish arguable reasonable suspicion as a matter of law, so Shaws may proceed for that period |
| Whether a dog alert procured during an initial unlawful detention can be used in §1983 to support liability for subsequent search/seizure (fruit‑of‑the‑poisonous‑tree/exclusionary rule) | Shaws: (did not contest on appeal) | Schulte: exclusionary/fruit‑of‑the‑poisonous‑tree principles should limit scope of §1983 claim after dog alert | Court: exclusionary rule/fruit‑of‑the‑poisonous‑tree do not apply in §1983 civil suits; Schulte entitled to summary judgment only for post‑alert detention (dog alert supplies probable cause for search) |
| Whether McMillan had arguable reasonable suspicion to extend Bosire’s stop for a K‑9 sweep | Bosire: the record lacks sufficient undisputed facts; many of McMillan’s claimed grounds are weak or discredited (no marijuana odor in car, incoherent report linking Love’s encounter to stop) | McMillan: cameras, rental late return, partially lowered window, evasive/dishonest answers, association with marijuana smell and caravanning justified K‑9 request | Denied summary judgment for McMillan — disputed facts and insufficient undisputed factors; a jury must decide reasonable suspicion |
| Whether Schulte is liable for failing to intervene in McMillan’s detention of Bosire | Bosire: Schulte had a duty to intervene to prevent the unlawful extension | Schulte: no clear, established duty to intervene for a brief investigatory detention; Vondrak (duty language) arose in excessive‑force context | Reversed as to Schulte — Schulte entitled to qualified immunity because existing law did not clearly establish a duty to intervene in these circumstances |
Key Cases Cited
- White v. Pauly, 137 S. Ct. 548 (qualified immunity requires that the unlawfulness be "clearly established")
- Rodriguez v. United States, 575 U.S. 348 (K‑9 delay after a completed traffic stop and fruit‑of‑the‑poisonous‑tree discussion in criminal suppression context)
- United States v. Parada, 577 F.3d 1275 (dog alert generally supplies probable cause to search)
- Vondrak v. City of Las Cruces, 535 F.3d 1198 (duty to intervene language in excessive‑force setting)
- Vasquez v. Lewis, 834 F.3d 1132 (similar context where travel from a drug‑source area and other factors did not supply reasonable suspicion)
- Cortez v. McCauley, 478 F.3d 1108 (totality of circumstances governs reasonable‑suspicion analysis)
- United States v. Kitchell, 653 F.3d 1206 (reasonableness judged by totality of circumstances)
- United States v. Pettit, 785 F.3d 1374 (reasonable suspicion need not rule out innocent conduct)