Tenth Circuit Felders v. Malcom 12-4154

Decision here.

 Dear fellow officers,

   Please don't Gant the fellow officer rule.

  Sincerely,

   The Author of This Blog.

   So Felders was stopped for speeding in Utah while she was driving from California to Colorado.  The trooper (Bairett) who stopped her thought that she was hauling drugs.  Why, you ask?  Because she had an air freshener (like many 54 year old ladies), she didn't maintain eye contact (like 80-90% of people on traffic stops), and the kids in the car didn't have the details of the trip straight (like most 17 & 18 year olds).  Oh, and she had a Jesus bumper sticker or something.

   I'm not even kidding, Bairett thought all of that was PC to search the car.  But he didn't search it right away.  First, he asked for consent (denied).  Then, he called for a K9.  Before running the dog on the car, he explained what was going on to the handler (Malcom), and then had the occupants of the car get out.  When they did get out, he prevented them from closing the doors (and then he and Malcom pretended that they had left the doors open voluntarily).

   When Malcom ran the dog on the car, it jumped in and alerted on the beef jerky in the center console.  Then the two cops spent two hours searching the car and finding nothing.  Quite correctly, Felders sued.

   Both officers moved to dismiss the suit based on qualified immunity, and they were denied.  Malcom appealed.  And these are his ridiculous arguments:

   1- He argued that he was entitled to rely on Bairett's assertion that there was probable cause to search the vehicle, based on the collective knowledge doctrine (sometimes known as the fellow officer rule).

   2- He alternately argued that he independently had probable cause to search the vehicle because he could arrest Felders for obstruction for lying to Bairett in order to obstruct his drug investigation.

   3- He argued that the law was not clearly established that his conduct during the search violated Felders' rights.

   So first, let's talk about collective knowledge.  The courts have described that it works "vertically" and "horizontally."  Vertical collective knowledge is where an investigating officer informs another officer that there is probable cause to search/arrest/whatever and the second officer carries that out.  Horizontal collective knowledge is where several officers act independently in an investigation, then they can pool their knowledge and if putting all the pieces together gets them to PC they can act on that (this only works if they actually do communicate with each other, though).  

   Malcom couldn't rely on vertical collective knowledge because Bairett didn't have PC (the court is willing to humor the idea that he had reasonable suspicion, but I think they're being generous).  He couldn't even make a good faith reliance on Bairett's assertion of PC, because he knew too much about the case.  Or, as the court put it: "Accordingly, the good faith defense shields objectively reasonable good faith reliance on the statements of a fellow officer, but does not protect deliberate, reckless, or grossly negligent reliance on the flawed conclusions of a fellow officer."

   He also didn't have PC to arrest Felders for obstructing Bairett, because the facts communicated to him by Bairett wouldn't lead a reasonable officer to believe that she had committed that crime.

   The court also ruled that by facilitating the dog's entry into the car (even though Bairett was the one who actually kept the door open when the passengers wanted to close it), he violated Felders' clearly established rights.

   Qualified immunity denied.