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Shaw v. Schulte.

Nos. 21-3130 & 21-3131. D.Kan. Judge McHugh. 42 USC § 1983—Summary Judgment—Qualified Immunity—K-9 Sweeps.

June 6, 2022

This appeal stemmed from two traffic stops along Interstate 70 in Western Kansas. In the first stop, Trooper Schulte stopped the Shaws for speeding. After issuing a citation and informing the Shaws they were fee to leave, the trooper reversed direction and asked if there were any weapons in the car. He received a negative response and asked for consent to search the vehicle. The driver refused consent. Trooper Schulte then returned to his patrol car, informed dispatch that Shaw had refused his request, and requested a K-9 unit. The K-9 unit arrived about 25 minutes later and alerted four minutes into the sweep. During the subsequent search, Trooper Schulte located a Colorado medical marijuana card but no drugs. Despite this, the trooper directed the Shaws to a Kansas Highway Patrol headquarters so he could photocopy the card. He then permitted the Shaws to resume their trip to Colorado.

In the second stop, Trooper McMillan and Trooper Schulte exited a gas station and smelled marijuana. After standing outside for five minutes, Trooper McMillan noticed two men talking near a vehicle. From this limited interaction, Trooper McMillan believed both men could be associated with the marijuana smell, and he suspected they were trafficking drugs and caravanning. Shortly thereafter, while driving on I-70 east, Trooper McMillan observed the vehicle seen at the gas station, driven by Bosire, exceeding the speed limit. Trooper McMillan initiated a traffic stop, and while he was drafting a speeding warning, Trooper Schulte arrived on the scene. Trooper McMillan asked about the proximity of the nearest K-9 unit but expressed his belief that he lacked reasonable suspicion to detain Bosire. When Trooper McMillan returned to the vehicle, Bosire raised his suspicions by giving short answers to questions and declining consent to search the vehicle. Trooper McMillan then directed Trooper Schulte to request a K-9 unit. About 22 minutes later, the dog sniffed but did not alert. Bosire was issued a warning for speeding and permitted to leave.

The Shaws commenced a civil rights action against Trooper Schulte, alleging that the trooper lacked reasonable suspicion to detain them. Bosire joined the action and added Trooper McMillan as a defendant. Both troopers moved for summary judgment based on qualified immunity. The district court denied the motions in text orders. A hearing was then held after the troopers filed motions to alter or amend the judgments and for permission to file out-of-time reply briefs. The court denied these motions.

To overcome a qualified immunity defense, a plaintiff must demonstrate that (1) the official violated a statutory or constitutional right and (2) the right was clearly established at the time of the challenged conduct. Trooper Schulte argued on appeal that six factors supported arguable reasonable suspicion for extending the stop of the Shaws for the K-9 sweep. However, considering the totality of the circumstances, Trooper Schulte did not advance sufficient undisputed facts establishing arguable reasonable suspicion to prolong the stop. Further, the undisputed facts, including the minimal weight given to the factors not in dispute, are sufficient to permit the Shaws to overcome the clearly established prong of qualified immunity for purposes of this stage of the proceedings. However, Tenth Circuit precedent establishes that a dog alerting during a vehicle sweep provides officers with probable cause to search the vehicle. Therefore, Trooper Schulte was entitled to summary judgment on the portion of the action seeking damages from the post-alert detention.

Trooper McMillan also advanced six factors supporting arguable reasonable suspicion to detain Bosire. The Tenth Circuit concluded that considering the totality of circumstances, Trooper McMillan did not advance sufficient undisputed facts to establish arguable reasonable suspicion in support of his decision to prolong the stop. Further, it was “so obvious that reasonable suspicion was lacking” as to permit Bosire to overcome the qualified immunity assertion. However, as to Bosire’s claim against Trooper Schulte, the undisputed facts did not support the proposition that the Trooper Schulte was part of the decision-making process in prolonging the stop, and there is no clearly established requirement that an officer must intervene to prevent an illegal search and seizure.

The summary judgment was affirmed in part and reversed in part. The Shaws may proceed on their § 1983 action against Trooper Schulte, but Trooper Schulte is entitled to partial summary judgment regarding the scope of the Shaws’ action. Additionally, while Bosire may proceed on his § 1983 action against Trooper McMillan, Trooper Schulte is entitled to qualified immunity as to Bosire’s action.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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