Police, The Fourth Amendment, Qualified Immunity

Another drug dog makes another false alert

with 4 comments

Case: FELDERS v. BAIRETT (D.Utah 8-7-2012)

Link: here

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.

Written by Burgers Allday

August 9, 2012 at 5:16 am

Posted in Uncategorized

4 Responses

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  1. Is there any way for people without PACER or LEXIS access to view the judge’s ruling?


    August 9, 2012 at 7:02 am

    • I believe that the opinion can be found at leagle.com.

      Leagle.com versions of court opinions used to come up in GOOGLE searches, but they no longer seem to. However, if you go to leagle.com and enter the parties’ names then the opinion will come up (at least it did for me). I don’t know if all federal district opinions get into leagle.com right away, but a lot of them do. I will admit that I use a pay service to find my police4aqi cases, but leagle.com has been a good resource for me in the past (although more so when it was “GOOGLE-able”).

      Also worth noting is that many legal opinions make it into GOOGLE SCHOLAR, which allows free access. Like the leagle.com opinions, the GOOGLE SCHOLAR version of the opinions don’t show up in regular GOOGLE searches — you have to specially go to GOOGLE SCHOLAR to do the search. However, the opinion that this post is about does not seem to be in GOOGLE SCHOLAR, at least not yet. This may be just because the opinion is still so new.

      Thanks for your interest!

      Burgers Allday

      August 9, 2012 at 8:33 am

      • Thank you for the legal analysis and pointing me to helpful resources. If there was a link to the ruling in your article, I would certainly post a link to this on reddit.


        August 9, 2012 at 9:00 am

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