Another drug dog makes another false alert
Case: FELDERS v. BAIRETT (D.Utah 8-7-2012)
What happened: Police stopped a vehicle for speeding and wrote a ticket. The vehicle had no contraband, but Utah Trooper Brian Bairett became suspicious of the vehicle’s occupants and decided to call in the K9 unit. Dashcam video and audio of the stop showed that Trooper Bairett ensured that the doors of the vehicle stayed open when he removed the passengers. When the K9 arrived and was walked around the vehicle, the unit’s handler, Deputy Jeff Malcolm, allowed the K9 to jump into one of the open doors of the vehicle. After this happened, Deputy Malcolm took this as an indication that contraband was present, although he did remove some jerky from the vehicle to prevent the K9 from focusing on that once the K9 was inside the vehicle. Because the vehicle had no contraband, the K9’s alert was a false positive, and the driver and passengers were released without charges beyond the speeding ticket. However, they were vexed and annoyed enough by the imposition to sue Trooper Bairett and Deputy Malcolm.
Decision: No qi for the police because the video showed that the police purposely kept the doors of the vehicle open so that the K9 could jump in. The jury can decide whether the K9 alerted before jumping into the vehicle, which would apparently excuse the police behavior in the court’s view, but the opinion seems skeptical that such an alert prior to the jumping-in actually occurred based on the judge’s review of the video and audio. The opinion was unusually critical of the policemens’ credibility regarding several different factual issues.
[I]t is troubling that Trooper Bairett and Deputy Lee both expressed the opinion that when a person denies consent to search a vehicle, it must mean they are carrying something illegal. When one exercises a constitutional right, it “cannot form any part of the basis of reasonable suspicion.” . . . 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.
Comment: This case shows how good video and audio recording leads to better justice in the area of police-related 4a qi cases.