Thursday, July 17, 2014

Nervousness, Air Fresheners, and "Jesus" on the License Plate Ring Did Not Provide Probable Cause for Car Search

Felders v. Malcolm, 2014 WL 2782368 (6/20/14) (Ut.) (Published) - In this ยง 1983 case, it was clearly established the officers did not have probable cause to search Ms. Felders' car in the following circumstances after a traffic stop for speeding. According to one officer, Ms. Felders was nervous and would not maintain eye contact. There was a strong odor of air freshener and, most suspicious of all, affixed to the car was a license plate ring with "Jesus" written on it. Also the officer perceived inconsistencies between the passengers' and Ms. Felders' versions of their trip details. The circumstances did not show probable cause of drug involvement or lying to an officer under Utah law. The story inconsistencies did not indicate an intent to hinder an investigation---an element of the Utah offense. It was not objectively reasonable for the canine officer to rely on the detaining officer's belief in probable cause where the facts the detaining officer relayed did not amount to probable cause. This type of holding could be important in the future if courts start applying the good faith exception to the 4th Amendment in these non-warrant types of situations.

There was sufficient evidence the officers facilitated the drug-sniffing dog's entry into the car. This would be unconstitutional absent probable cause. The officers decided to get all the occupants out of the car. A tape of the events showed one officer preventing the rear passenger from closing the door and the officers agreeing it was nice of another passenger to leave the back hatch door open. While on a leash, "Duke", [the dog, not the officer], almost immediately jumped through the open rear passenger door and alerted to the center console which contained two bags of jerky. Unlike in our cases, no drugs were found.