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Saturday, July 5, 2014

Federal Court: Cops Cannot Push Drug Dog Into Open Car Door

Federal appeals court allows woman with religious license plate to sue cops who made a drug dog alert on a drug-free car.

Utah state troopers who used a drug dog as a pretense to search a car belonging to an innocent woman are in legal trouble. The US Court of Appeals for the Tenth Circuit on Friday ruled that the victims could sue the troopers for spending two hours rifling through their vehicle without finding anything unlawful, in violation of their constitutional rights.

Utah State Trooper Brian Bairett had been running a speed trap on Interstate 15 when a Jeep driven by Sherida Felders passed through. Bairett said he developed probable cause during the traffic stop because she was nervous, had an air freshener and her license plate holder said "Jesus."

Trooper Bairett accused Felders, a 54-year-old, of transporting cocaine. She denied the accusation and refused his request to search the car. After a drug dog was called in, Trooper Bairett explained the situation to its handler, Iron County Sheriff's Deputy Jeff Malcom.

"This lady -- you know, I walk up to the car and I see air fresheners in the center console and... I start talking to her, you know, just 'So where, you heading to?' 'Oh going to Colorado,' blah, blah, blah," Trooper Bairett said. "To me, I've got probable cause to search the vehicle without her permission or not, so I figured the dog would be the best route to go right now."

Trooper Bairett ordered two teenage passengers out of the Jeep, along with the Chihuahua that was riding in the back. Deputy Malcom explained he intended to leave the door open when the teenagers got out. Dashcam footage recorded what happened.

"Nice of them to leave the door open for you," Deputy Malcom said.

"Yeah it was, wasn't it?" Trooper Bairett responded.

Then the drug dog, named Duke, walked around the car and jumped right through the open door without alerting. Once inside, the dog alerted to the center console. It had two packages of beef jerky. The dog next alerted on the driver's door, which contained nothing. The lower court found the search improper and refused to grant immunity, so Deputy Malcom appealed.

"We agree with the district court that Malcom did not have probable cause to search the car prior to Duke's alert and that the law was then clearly established that, absent probable cause, facilitating a dog's entry into a vehicle during a dog sniff constitutes an unconstitutional search," Judge Timothy M. Tymkovich wrote for the appellate panel. "Taking the facts in the light most favorable to Felders, we conclude that fact questions exist regarding the timing of Duke's alert and Malcom's possible facilitation prior to an alert. As a result, we affirm the district court's decision to deny Malcom summary judgment on qualified immunity grounds."

The court rejected Deputy Malcom's attempt to argue that he was just working on his fellow officer's claim that there was probable cause. The appellate judges said the deputy should have known better.

"The facts Malcom knew -- Felders's nervousness and unwillingness to look at Bairett, possible inconsistencies in travel narratives, a single air freshener, and a religious license plate frame -- could justify no more than reasonable suspicion to conduct an investigative stop," Judge Tymkovich wrote. "A reasonable officer would not conclude that Felders was hauling drugs based on the statements or behavior of either Felders or her two teenage passengers."

A copy of the decision is available in a 50k PDF file at the source link below.

Source: Felders v. Malcom (US Court of Appeals, Tenth Circuit, 6/20/2014)

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So, it IS 'suspicious' to have a air-freshener in your vehicle ?
It seems to me judges are about as stupid as cops ..

Regarding dogs 'superior' smelling-senses as a pretext to provide 'probable cause' :
A female friend of mine once had her property raided by the pigs at night.
The first thing this stupid animal does is to stick it's nose in her crotch, since she was having her period ! This alone saved her from being busted for the 2 weed-joints 'hidden' in the paper-basket !

So, my claim is : These stupid animals can't really smell 'drugs', all they can smell is 'something' . The handler then 'interprets' the dogs reaction
in whatever way fits the agenda and hokus-pokus, there you have your 'probable cause' . And the dog gets lots of positive attention, and a treat .

All dogs belong to Ivan Pavlov !

(I actually kind of like dogs, but there is no way they are 'clever' )


> So, it IS 'suspicious' to have a air-freshener in your vehicle ?

Yes it is; as well as Jesus plate. If you read the book "Arrest-Proof Yourself: An Ex-Cop Reveals How Easy It Is for Anyone to Get Arrested, How Even a Single Arrest Could Ruin Your Life, and What to Do If the Police Get in Your Face", written by former cop and FBI agent Dale Carson, you will find it all there, it's all part of their official training. Highly recommended.

Speaking of dogs, the funny thing is that nobody can say for sure what dog's actions constitute the drug alert that becomes probable cause to search the vehicle. As I understand, the cop can claim that the dog has alerted in any case, and it will be impossible to dispute. I never heard about a single case where the fact whether dog alerted or not, was disputed.

Yeah well .. I'm not a US citizen or resident so I think I will pass on that book,
it will just make me even more infuriated than I already am .
Besides, in my country there is practically no such thing as an 'illegal search', unless the pigs don't find anything illegal at all.
If they don't, they just look at your kitchen-knives and charge you with possession of a knife with a blade longer than 7 cm or they take your Swiss Army-knife and claim it is 'one-hand operated' and/or has 'a locking blade' .
You won't get convicted for that, but that isn't the point : It magically makes the search 'legal' .

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