Bairett alleged that the three individuals in the car were nervous and that Felders would not maintain eye contact with him. He also observed an air freshener in the car. (Some K-9 handlers call several air fresheners hanging from the rear-view mirror a “felony forest,” though a single freshener is not generally thought to raise suspicion.) Bairett asked Felders the purpose of her trip. He returned to his car with the documents but did not run any computer checks at that time. He wrote a speeding ticket. All the events were being captured on Bairett’s dashboard video camera.
Bairett returned to Felders’ vehicle and asked her to step out of it so he could explain the citation. In a deposition, Bairett acknowledged that he did not routinely ask people to step out of their vehicles but he did so this time because because he had begun to suspect the people in the car were involved in criminal activity based on their nervousness, the air freshener, and the fact there was a Jesus license plate ring on the vehicle. (Religious and divinity symbols are sometimes used by traffickers, and law enforcement training often involves mention of such symbols as a possible indicator of drug activity.)
Bairett explained the citation but did not give the license and vehicle registration back to Felders before asking a few more questions about her travel plans. After handing the documents back to Felders, he still continued questioning her, and alleged in his deposition that she repeatedly stretched, rubbed her face, covered her mouth, avoided eye contact, and moved away from him. He stated that he “was still just investigating to find out whether there was a crime,” but the court said that at this point Bairett had no articulable reasonable suspicion.
Bairett then asked if he could talk to Felders’ passengers and she consented. After doing so, Bairett returned to questioning Felders because of possible inconsistencies in what he had been told. Felders had said the passengers were friends of her grandchildren, but the passengers said they were her cousins. Felders had said her grandchildren were flying to Colorado but later said they lived there. Felders said she was returning on December 1st, but the passengers said they were returning on Sunday, which Bairett took to mean November 23rd, though it could have meant November 30th. None of these statements were necessarily inconsistent, though December 1st was a Monday.
Felders began trying to explain the inconsistencies but Bairett said her story did not make sense. He believed he had sufficient reasonable suspicion that Felders was transporting drugs and he asked her if she had cocaine in the vehicle. She did not respond for seven seconds, then said “No.” (This, of course, could be explained if Felders was dumbstruck by what was being suggested and could not get her breath.) Bairett asked about other types of drugs, and she said “No” to each. Then he asked if he could search the car and she said he could not. He informed her that he was detaining her until a K-9 unit arrived.
Bairett called his sergeant and informed him of the situation. He told the sergeant, “If I can’t get a dog, I’ll just have to let her go.” He began to perform computer checks for the first time, considerably later than would usually be standard procedure, and found that Felders had a charge of receiving stolen property and battery on a police officer with a firearm. No prior drug charges or convictions came up in the computer checks. (Computer checks are sometimes delayed to prolong a stop, which may have been the case here.) The prior charge could explain Felders’ nervousness, though the court did not mention this possibility.
While Bairett was still waiting for the K-9 unit, Deputy Wade Lee arrived. Bairett “rehearsed for that officer all that had occurred during the stop,” according to the court. “Rehearsed” is a curious verb. Why not “described?” Did it appear to the court that Bairett was trying to line up his arguments for a search? Bairett said to Lee: “There’s so much—I’m to the point right now where it’s probable cause to get in that vehicle, whether she likes it or not.” This is directly contrary to what Bairett had just told his supervisor, so it’s not clear whom he was bullshitting. Both officers told each other that when someone refuses consent, it is because “there’s something in there.” Lee said that “most people think it’s fun” to have their car searched, and Bairett agreed. As to this interchange, the court observed:
“That two officers would opine to the contrary and believe that people actually enjoy being detained and having their vehicles and belongings searched makes the court question the training and judgment of these officers.”
Dispatch informed Bairett that Deputy Malcom would be coming with his drug dog, Duke. Bairett asked Deputy Lee, who he may have thought knew Malcom better than he did, if Duke would jump in the vehicle through the windows, noting that “the windows are open.” Bairett may have been asking Lee whether Malcom had trained his dog to jump through open windows, as demonstrated in the two training pictures included in a prior blog. As we noted in that blog, jumping in windows is not “instinctual” with dogs. When they do it automatically, it is because they have been trained to go through anything that looks like a car window (as many have) or because they are following a scent, not because they have an irresistible urge to go through narrow passages into dark spaces.
Unfortunately, this poorly considered terminology has recently been adopted by the Sixth Circuit in U.S. v. Sharp, 2012 WL 3047338 (6th Cir. 2012) (“[A] trained canine’s sniff inside of a car after instinctively jumping into the car is not a search that violates the Fourth Amendment as long as the police did not encourage or facilitate the dog’s jump.") The likely reason for Bairett’s question to Lee about whether Duke would jump through windows was Bairett’s hope that the dog had been well-trained to go through windows. The fact that he made such an effort to keep the doors open, as will be described below, probably indicates that he was not satisfied that there had been this kind of training.
Deputy Malcom arrived about 30 minutes after Bairett first called for a K-9 unit. Malcom told Bairett to remove the two passengers from the vehicle. Bairett replied, “Yeah, that’s what I was planning on doing. When they get out of the car, I’ll leave the doors open.” In his Incident Report, however, Bairett stated that the passengers left the doors open. In his deposition, he said he did not leave the doors open. The videotape, according to the court, showed “that as Mr. Madyun exited through the front passenger door, Trooper Bairett put his hand on the door and opened it wider. Dash Cam Video, 9:44:58-9:45:00. Next, it shows that Trooper Bairett stepped towards the rear passenger door when it opened. As Mr. Hansend exited, he moved to close the door. Trooper Bairett, however, put his hand on the door to stop it from being closed. Dash Cam Video, 9:45:00." At the very least, Bairett seems to have had memory problems. The court's analysis suggests that at some point he may have perjury problems.
“Ms. Felders was then directed to remove her Chihuahua from the back of the vehicle [by which officer is not stated]. She lifted the back window hatch to do so and left that open. Consequently, the back hatch and front and rear passenger doors were all open when Duke was deployed.”
What happened with the deployment of Duke is described by the court as follows (deleting video time stamps and deposition and affidavit references):
“Duke first went to the back hatch, lifted his head up, and sniffed at the open window; but Deputy Malcom appeared then to pull on Duke's leash briefly to guide him away from the back of the vehicle. Deputy Malcom next backed towards the rear passenger door that was open, keeping Duke between him and the vehicle. Upon arriving at the passenger door, Duke jumped into the vehicle.”
What the video shows would be informative to handlers because forcing a dog to go forward—many dogs will not stop indefinitely and do not like to go backward against the position of the handler—may indicate the dog was blocked and that there was cueing at this stage of the sniff. The court continues:
“The total time from deployment until Duke entered the vehicle was seven seconds. In those seven seconds, Duke spent about four seconds approaching the back hatch window and sniffing it. Deputy Malcom testified at his deposition that Duke did not alert during that time. In the next three seconds, however, Deputy Malcom attested that Duke did alert because Duke ‘began breathing quickly and deeply, which is how he acts when he alerts to a drug odor.’ Additionally, he jumped into the vehicle, and when he entered the vehicle that constituted part of his alert.”
Malcom provided the court with an affidavit from an expert witness, Wendell Nope, the K-9 Training Supervisor at the Peace Officer Standards and Training Division of the Utah Department of Public Safety. Nope’s affidavit stated that he had reviewed the dash cam video and stated that Duke “alerted when he lifted his head up, began breathing deeply, and jumped into the rear passenger door of the Jeep.”
Describing lifting the head, breathing deeply, and entering vehicle as an alert would not be acceptable in any reputable training regimen with which the authors are familiar. Duke’s first entry lasted about two minutes. Malcom removed him from the vehicle but allowed him to re-enter it two more times. According to the court:
“After searching the vehicle for approximately five minutes, Duke indicated by sitting and focusing intently by the driver's side door. The three officers then spent almost an hour searching the vehicle and its contents, including removing paneling to search behind it. They found no illegal drugs or other contraband; and therefore, had to end the plaintiffs' detention. The entire stop lasted approximately two hours.”
Felders and her passengers sued, advancing three causes of action: unlawful seizure under the Fourth Amendment, unlawful search under the Fourth Amendment, and unlawful racial profiling under the Equal Protection Clause of the Fourteenth Amendment.
The federal district court for Utah held that the initial traffic stop for speeding was appropriate, but the air freshener, Jesus license plate ring, and nervousness “fall short of reasonable suspicion of criminal activity.” When Felders declined to allow Bairett to search the vehicle, the encounter was no longer consensual and Bairett needed reasonable suspicion to prolong the detention.
Analyzing Bairett's argument that he had reasonable suspicion, the court said that Bairett had found the following suspicious: (1) the air freshener, (2) Felders’ nervousness, (3) inconsistent answers of the occupants of the car concerning travel plans, and (4) the delay in Felders’ response to the question about whether she was carrying cocaine. There were weaknesses in several of these items as grounds for reasonable suspicion. Under Tenth Circuit precedent, “nervousness is a common and natural reaction to an interaction with a police officer,” so “unless an individual’s display of nervousness is unusually severe or persistent, or accompanied by other, more probative grounds for reasonable suspicion, it is of limited significance in determining whether reasonable suspicion exists.” U.S. v. Kitchell, 653 F.3d 1206 (10th Cir. 2011). Based on the dash cam video, the court concluded that it did “not appear that Ms. Felders’ nervousness was unusually severe or persistent.”
Some of the inconsistencies in stated relationships and travel plans, according to the court, “may have arisen due to cultural differences and miscommunication between the parties,” but it could not be stated for certain that this explained everything.
Viewing the totality of the circumstances, the court concluded that Bairett had reasonable suspicion sufficient to continue the detention and that the seizure was not in violation of the Fourth Amendment.
Duke’s Sniff of the Vehicle
The court moved on to the question of the legality of the search. Probable cause is not needed to conduct a canine sniff of a vehicle’s exterior. Under Tenth Circuit precedent, however, officers may not “rely on a dog’s alert if they open part of the vehicle so the dog can enter or if they encourage the dog to enter.” U.S. v. Ayala, 446 Fed.Appx. 78 (10th Cir. 2011). The court found that “Trooper Bairett showed an express intent to facilitate Duke’s entry into the vehicle.” Bairett argued that he could not have facilitated the dog’s entry into the Jeep because he was not the dog handler, but the court noted that facilitation “can occur by means other than directly handling the dog.” For this, the court cited U.S. v. Winningham, 140 F.3d 1328 (10th Cir. 1998), where a motion to suppress was granted when a New Mexico Border Patrol agent left a car door open while he was searching for illegal aliens. A drug dog did not clearly alert outside the van, though the handler said he had observed a noticeable difference in the dog’s behavior near the van. The dog jumped inside the van, where it alerted at a rear vent. Inside the vent, the agents found 50 kilograms of marijuana.
The court determined that Trooper Bairett was not entitled to qualified immunity on the plaintiffs’ claim of improper search:
“Indeed, from the dash cam video, it is evident that Trooper Bairett intentionally facilitated Duke's entry into the vehicle and no reasonable fact finder could conclude otherwise. Thus, if probable cause was not established before Duke entered the vehicle, Trooper Bairett violated the plaintiffs' constitutional right to be free from unreasonable search. As discussed below, a material issue of fact exists as to whether Duke alerted before entering the vehicle. Whether Trooper Bairett violated the plaintiffs' constitutional right cannot therefore be resolved on summary judgment.”
Given the language we’ve italicized, Bairett’s counsel may want to consider making a settlement offer soon.
Vertical Collective Knowledge
Deputy Malcom argued that he had authority to search the interior of the vehicle because Trooper Bairett had told him, “to me, I’ve got probable cause to search the vehicle without her permission or not.” Malcom argued that he could rely on this under the collective knowledge doctrine, but the court noted that under the doctrine “the second officer is justified only to the extent the first officer actually had the probable cause or reasonable suspicion asserted.” The court said that Bairett may have had reasonable suspicion, but “it did not rise to the level of establishing a fair probability that the vehicle contained contraband,” and Bairett “did not have probable cause to search the vehicle.”
Bairett’s supervisor had not indicated to Bairett that there was probable cause, though he wrote in his report that if Bairett felt he had enough suspicion, he could wait for a drug dog to perform a sniff. Therefore, there was no vertical collective knowledge upwards either. The court said that the vertical collective knowledge doctrine did not apply.
Did Handler Observe Enough on His Own to Have Probable Cause?
The federal district court considered whether Deputy Malcom’s own observations gave him enough information to have probable cause to search the vehicle. Malcom did notice some indicators that Bairett had not:
“[A] single key was in the ignition rather than a key ring with several keys, they were traveling with a dog which is often believed by drug runners to mask the scent of drug odors, the time that they were traveling began [at] midnight, air freshener by the center console, inconsistent travel plans of passengers, a Jesus license plate bracket, relationship of children, body language, and lying to an officer or story not rehearsed.”
The court questioned how Malcom could have known about the single key before Duke entered the vehicle because Bairett had never mentioned it. The dash cam video suggested that Malcom could have only known this after Duke entered the vehicle. The court also stated that the information about midnight travel was not communicated to Malcom prior to his dog entering the vehicle. The court acknowledged that Malcom could have known about the presence of the Chihuahua before Duke entered the vehicle, but that this “did not alter the court’s conclusion.”
Nor was Malcom immunized from the unlawful search claim by good faith reliance on what Bairett had told him because Bairett had explained the facts upon which he believed there was probable cause and “Deputy Malcom was in a position to judge for himself whether there was probable cause to search the vehicle.”
Facilitating Dog’s Entry into Vehicle
Bairett had told Malcom that he would get the passengers out of the car and that when he did so, “I’ll leave the doors open.” Malcom did not respond and stated in his affidavit that due to traffic noise he did not hear Bairett’s comment or observe Bairett opening the doors. The court said that there was an issue of fact here for the jury to determine and summary judgment could not be granted.
Malcom also argued that Duke’s entry into the vehicle was proper because he alerted before entering the vehicle. The court summarized a prior case where a dog’s behavior had changed outside a vehicle and the dog had tried to jump into the vehicle, but was stopped by the handler. In U.S. v. Parada, 577 F.3d 1275 (10th Cir. 2009), the officer “testified that the dog’s body stiffened and his breathing became deeper and more rapid, signaling that he had discovered an odor he was trained to detect.” Because the officer prevented the dog’s entry into the vehicle, the dog never indicated or pinpointed the source of the odor.” The Tenth Circuit held that this was enough to provide probable cause to search the vehicle.
Here, the court said that although Malcom contended that Duke “began breathing quickly and deeply” before jumping in the vehicle, which was part of the alert, “the dash cam video creates a material issue of fact as to whether Duke actually alerted before entering the vehicle. The manner in which Deputy Malcom handled Duke and the three seconds, a very short period of time, between deployment and entry do not readily confirm that an alert occurred.”
Wendell Nope, the defense expert, submitted an affidavit stating the Duke had “alerted when he lifted his head up, began breathing deeply, and jumped into the rear passenger door of the Jeep.” The court observed that the dash cam video only shows Duke lifting his head up “when he sniffed at the rear window of the vehicle.” At this point, Malcom said that Duke had not yet alerted. The opinion continues:
“Because Deputy Malcom has more experience with this particular dog than Mr. Nope, it is unclear why Mr. Nope believes this constituted an alert. To the extent Duke raised his head at some other point, it would be best for Mr. Nope to point out that nuance to a jury. Ultimately, however, Mr. Nope can be considered only an expert in proper procedures for training and handling drug dogs. He is not an expert in perceiving facts, nor an expert on how this particular dog reacts. If Mr. Nope was able to hear Duke breathing deeply on the video, then so too should the jury. Unfortunately, that sound is not evident on the video supplied to the court, so it cannot resolve this disputed issue.”
More reason to settle: your expert has lost credibility with the court. The court also stated that “Deputy Malcom and Mr. Nope are put on notice … that they will not be permitted to testify that a dog’s jump into a vehicle constitutes an alert. Probable cause must be established before entry, not by an entry.”
Duke inside the Vehicle
Although the violation of rights involved Duke’s entry into the vehicle, a footnote mentions that while Duke was focusing on the center console, Malcom removed some beef jerky that was near the console “to make sure that wasn’t what he was hitting on….” In his affidavit, Malcom said that he removed the beef jerky “to prevent Duke from putting his nose in the Plaintiff’s food and spoiling it. I did not think or believe that Duke would ‘alert’ to beef jerky. In fact he is trained not to give an alert or indication to any type of food.” The court noted that the affidavit statement “changes the motivation for why Deputy Malcom acted,” and meant that “a fact finder may question the credibility of Deputy Malcom’s two affidavits.”
Nope’s affidavit stated that Malcom had handled Duke in conformance with established standards, keeping the leash slack so as not to cue Duke improperly. The court noted that “cueing may occur by means other than a taut leash. Because the dash cam video shows Deputy Malcom pulling Duke away from the rear window and keeping him in a close space between him and the vehicle as he backed towards the passenger door, a material issue of fact exists regarding whether improper cuing occurred.”
Another footnote mentions that the plaintiffs also had an expert whose report addressed Malcom’s handling of Duke and concluded that Duke had been handled improperly. The court did not name the witness, make a decision on whether this witness could be qualified as an expert, or otherwise refer to the conclusions of the expert’s report or a deposition that was apparently conducted of this potential witness.
The federal district court concluded that “existing precedent was sufficient to put Trooper Bairett and Deputy Malcom on notice that facilitating a drug dog’s entry into a vehicle can constitute an illegal search.” The court is specific about Bairett intentionally orchestrating the drug dog’s entry into the vehicle and thus its intrusion into the privacy of Felders, but states that “Malcom may have participated as well.” Therefore, the court denied qualified immunity to Bairett and Malcom.
The court rejected the racial profiling claims because the plaintiffs failed to present clear evidence to rebut the presumption that Bairett did not violate their Equal Protection rights. Felders alleged that Bairett had mocked her African-American accent. The court agreed the dash cam video showed that Bairett used a mocking tone towards Felders, but said he could have been exaggerating and imitating a woman’s voice. Either way, it is apparent that Bairett could use some sensitivity training, as well as some instruction in the legal significance of reasonable suspicion and probable cause. Usually one expects the driver to forget there is a dash cam video, or not even realize it is there, but here it appears to have been the officer who forgot.
Felders v. Bairett, 885 F.Supp.2d 1191 (2012)
This piece was written by John Ensminger and L.E. Papet.