Reasonable Suspicion Was Enough To Save Trooper From Million-Dollar Lawsuit

WILDER v. TURNER, USCA-10 No. 06-1092, 2007 U.S.App. LEXIS 13728, on appeal from USDC-COD, before USCJs Kelly, Baldock, Gorsuch, opinion by Baldock, filed 12 June 2007.

LONG STORY SHORT: Trooper had objectively reasonable suspicion to ask a motorist who showed objective signs of alcohol consumption to take field sobriety tests, and probable cause to arrest him upon refusal; $1 million jury verdict in motorist's favor would be reversed. Binding in CO, KS, NM, OK, UT, WY.

FACTS: Defendant, a Colorado highway patrolman, stopped Plaintiff for driving 57 in a 50. Defendant smelled alcohol on Plaintiff's breath, and Plaintiff admitted he had drunk a glass of wine 10 or 15 minutes before. Defendant heard Plaintiff speak unusually slowly and deliberately, and saw that Plaintiff's face was flushed and his eyes watery. Defendant asked Plaintiff to step out of the vehicle and walk to the rear, which he did without unsteadiness. Explaining that he had observed certain indicia of intoxication, Defendant asked Plaintiff to submit to field sobriety tests, but Plaintiff declined, asking "what did I do to deserve this?" Defendant asked again for Plaintiff to submit to tests, Plaintiff refused again, and Defendant arrested Plaintiff for driving under the influence. Plaintiff disclosed that he had a licensed handgun in his car. Defendant searched the car and found on the front passenger seat a half-empty open single-serving wine bottle that Plaintiff had covered up with newspapers before stopping. Defendant charged Plaintiff with DUI and illegal possession of a weapon while intoxicated, but subsequent blood tests established Plaintiff's blood alcohol content at less than .02, well under the legal limit of .08. The criminal court dismissed all charges against Plaintiff.

PROCEDURE: Plaintiff sued Defendant in U.S. District Court for the District of Colorado per 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from unreasonable seizure, specifically that Defendant arrested and charged him and seized his handgun without probable cause. After discovery, Defendant moved for summary judgment on qualified immunity grounds, arguing that he had objective reasons for asking Plaintiff to submit to field sobriety tests, and probable cause to arrest Plaintiff upon his refusal. The trial court ruled that under Colorado Supreme Court precedent interpreting Colorado's DUI statute, Defendant had only reasonable suspicion, not probable cause, of intoxication. Since under Colorado law a field sobriety test is a full search requiring probable cause, a reasonable jury could find that Defendant unlawfully seized Plaintiff. QUALIFIED IMMUNITY DENIED.

A jury rendered a verdict in Defendant's favor, Plaintiff taking nothing. The trial court granted Plaintiff's motion for a new trial on grounds that Defendant's counsel had acted so improperly in front of the jury that the trial court was convinced that Plaintiff had not received a fair trial. Defendant renewed his summary qualified immunity motion, but the trial court denied it as late. At the second trial, the jury awarded Plaintiff $1,000,000. The trial court denied all of Defendant's posttrial motions, ruling that Defendant was not entitled to qualified immunity. Defendant appealed to the U.S. Court of Appeals for the Tenth Circuit.

DECISION: If an officer has probable cause to believe that a person has committed even a very minor criminal offense in his presence, the officer may arrest the person immediately without violating the Fourth Amendment. Probable cause is only a fair probability considering all the facts and circumstances, and needs no prima facie evidence of guilt.

Since Plaintiff sued for violation of federal law, Defendant could assert the federal defense of qualified immunity. Plaintiff had to show that Defendant was liable under Fourth Amendment standards, not state law. The trial court erroneously applied state law to a federal constitutional question. Under the Fourth Amendment, a field sobriety test is a minor intrusion on a driver, and requires only reasonable suspicion of intoxication. Here, Defendant observed a moderate smell of alcohol, pinkish and watery eyes, flushed face, and unusually slow and deliberate speech and movements. These would give a reasonable officer in Defendant's place reasonable suspicion to detain Plaintiff for further investigation, and probable cause to arrest Plaintiff upon refusal to submit to tests. Any other rule would allow motorists to refuse cooperation and drive away, still smelling of alcohol. DENIAL OF QUALIFIED IMMUNITY REVERSED; cause REMANDED for entry of judgment in Defendant's favor.

EDITORIAL: This is one of those cases where the answer is so clear, but only after somebody shows it to you. That was a brilliant analysis, and a correct result. In Section 1983 cases, it's all too easy for trial courts to get bogged down in questions of state law instead of remembering that the federal constitution governs. The confusion stems, of course, from the fact that 1983 covers state-actor violations of the constitution and laws of the United States, typically while enforcing state law. Now the state law does define the crime--but not the search and seizure related to the crime, at least not when suing under 1983. The Fourth Amendment is very often less restrictive than plaintiffs wish it were.

Good on the Colorado AG's appeal team, and fooey on the defense lawyer at the first trial who got caught ridin' dirty in the courtroom. They put everybody through a whole other trial and appeal, and left their poor trooper client under a million-dollar sword of Damocles for the year or so that it took to get the judgment reversed. Not the way to go, guys.