August 29, 2014

Tenth Circuit: No Probable Cause to Conduct Vehicle Search when Dog Jumped Into Vehicle Without Alerting

The Tenth Circuit Court of Appeals issued its opinion in Felders v. Malcom on Friday, June 20, 2014.

Sherida Felders and her two young passengers were traveling through Utah on her way from California to Colorado when she was stopped by Officer Bairett for speeding. Bairett observed that Felders appeared nervous, she had an air freshener in her car, and she had a religious license plate holder, which made him suspicious that she was transporting drugs. He called for a K-9 unit to conduct a dog sniff, and Officer Malcom and dog Duke responded. Felders did not consent to a search of her vehicle, but the dog was allowed legally to sniff the outside of the vehicle without consent. As Felders and her passengers exited the vehicle, Bairett held the doors open and did not close them prior to the sniff. Duke immediately jumped inside the car without alerting and began to sniff the inside of the vehicle. After a two-hour search, no drugs were found in the vehicle. Felders and the two passengers subsequently brought this action, alleging violations of Fourth Amendment violations under 28 U.S.C. § 1983. Officer Malcom moved for summary judgment on the unlawful search claim on qualified immunity grounds. The district court denied summary judgment and this interlocutory appeal followed.

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. The Tenth Circuit agreed with the district court that Malcom did not have probable cause to search the vehicle prior to conducting the sniff. The facts provided by Bairett provided, at most, reasonable suspicion justifying the detention, and Malcom did not independently find any further evidence of wrongdoing.

As to whether Malcom facilitated Duke’s entry into the vehicle, the Tenth Circuit found that genuine issues of material fact existed as, precluding a grant of summary judgment on qualified immunity grounds as a matter of law. The Tenth Circuit noted that clearly established precedent prevented the officers from searching the inside of the vehicle until the dog alerted on the exterior sniff. Because the dog jumped into the car and it was not clear whether Malcom’s actions led the dog to enter the vehicle, summary judgment was inappropriate. The Tenth Circuit affirmed the district court’s denial of summary judgment to Malcom on qualified immunity grounds.

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