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Family suing over alleged illegal search wins round in court

By Pat Reavy | Posted - Jun 20th, 2014 @ 6:11pm

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SALT LAKE CITY — A San Diego family suing the Utah Highway Patrol over what it believes was an illegal search of their vehicle in 2008 near Cedar City claimed a partial victory Friday.

The 10th Circuit Court of Appeals has ruled that the U.S. District Court was correct in denying "qualified immunity" to one of the troopers named in the suit.

In other words, a Utah Highway Patrol trooper and an Iron County sheriff's deputy did not have probable cause to have a drug-sniffing K-9 enter the family's vehicle during a search. The case now goes back to the district court where it will either go to a jury or the two parties will attempt to reach a possible settlement.

Originally, the family claimed racial profiling in the lawsuit, but that allegation was later dropped.

On Nov. 20, 2008, Sherida Felders was traveling from California to Fort Collins, Colorado, to watch the Wyoming-Colorado State football game, when she was pulled over on I-15 near Cedar City. Felders and two of her grandson's friends, Elijah Madyin and Delarryon Hansend, who were 17 and 18 at the time, were also in the car. All of them are black.

"He just asked me out of the blue if I had any meth on me or cocaine or crack in my vehicle," she recalled in an interview in 2009. "I said no. Then he said, 'You don't mind if I search (your) vehicle?' I said, 'Yes, I do mind. I'm not giving you permission to search my vehicle.'"

"Based on Felders’ demeanor and several perceived inconsistencies in the stories of Felders and her passengers as to why they were traveling to Colorado, the trooper, Brian Bairett, asked to search Felders’ car for drugs," federal court documents state.

Bairett then called for assistance from sheriff's K-9 officer Jeff Malcom and his dog, Duke. The ensuing two-hour search yielded no drugs. Felders filed a civil lawsuit in federal court claiming her Fourth Amendment rights were violated.

Felders' attorney, Bob Sykes, argued that the UHP's own dash-cam video from the incident showed that Duke was prompted by the officers to jump into his client's vehicle and did not simply hop in the back seat spontaneously.

After the civil lawsuit was filed, both officers filed motions for summary judgment based on qualified immunity, arguing they were just doing their job. But a U.S. District judge denied the motions, stating the officers "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 (to the possible presence of drugs) prior to jumping into the vehicle; and (2) whether Malcom facilitated Duke’s entry into the vehicle prior to establishing probable cause," according to court documents.

Only Malcom appealed the district court's decision to the 10th Circuit Court of Appeals.

"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," court records state.

We agree with the district court that Malcom did not have probable cause to search the vehicle prior to conducting the sniff.

–10th Circuit Court of Appeals

Felders' civil lawsuit was put on hold in March of 2013 pending the outcome of the 10th Circuit's decision.

On Friday, the appellate court upheld the lower court's ruling.

"We agree with the district court that Malcom did not have probable cause to search the vehicle prior to conducting the sniff. The information Bairett provided Malcom at most established a reasonable suspicion justifying the detention, and Malcom did not independently develop additional facts prior to conducting the sniff that could support a search. As to the permissibility of Malcom’s actions during the dog sniff, genuine issues of material fact regarding Duke’s alert and Malcom’s facilitation of Duke’s entry into the vehicle preclude us from finding that Malcom is entitled to qualified immunity as a matter of law," the 10th Circuit wrote in its decision.

Felders said Friday she was pleased with the decision.

"I am very happy about this because I always felt that they were wrong," she said, adding that she hopes a quick settlement can be reached.

"I just want to put it behind me so I can move on," she said. "Hopefully it's finally over, I just want it to be over."

Likewise, Hansend said he was happy with the 10th Circuit's decision.

"I think it was wrong for them to make us sit there and make it seem like we were guilty of something," he said.

Even though the racial profiling claim was later dropped, Hansend believes it may have played a factor.

"Possibly," he said. "You see three African-Americans in a car and officers asked if we had any drugs on us."

Sykes agreed that he does not believe this incident would have happened if his clients were white.

Felders is seeking an undisclosed amount of money in damages.

The Utah Attorney General's Office asked a federal judge in 2009 to dismiss the civil suit and award the UHP court costs for defending the claim. The UHP categorically denies many of the allegations made by Felders.


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