Felders, et al v. Malcom, et al, No. 12-4154 (10th Cir. 2014)
Annotate this CaseA Utah state trooper stopped Sherida Felders for speeding while on a trip from California to Colorado. Based on her answers to a few questions, 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. The ensuing two-hour search yielded no drugs. Felders and her passengers filed suit against Bairett and Malcom under 28 U.S.C. 1983, alleging, 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. 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 alerted prior to jumping into the vehicle; and (2) whether Malcom facilitated the dog's entry into the vehicle prior to establishing probable cause. Malcom filed an 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. The Tenth Circuit agreed with the district court that Malcom did not have probable cause to search the vehicle prior to conducting the sniff. Therefore, the Court affirmed the district court's denial of Malcom's motion for summary judgment.
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