Questions before a jury, should the case go to trial, would include whether a police dog alerted to drugs before jumping into the Californians' Jeep Commander. Another question would be whether law-enforcement officers facilitated the canine's entry into the vehicle or whether one of the occupants left a door open.
Malcom's lawyer, Frank Mylar, pointed out that the 10th Circuit did not rule on the merits of the suit but only on whether the case could proceed. He said no decision has been made yet on whether to appeal the decision. Malcom denies any wrongdoing and says he conducted the search appropriately.
On Nov. 20, 2008, Sherida Felders, 54, was traveling with Elijah Madyun, then 17, and Delarryon Hansend, then 18, from San Diego to Fort Collins, Colo., when she was stopped on Interstate 15 near Cedar City by Utah Highway Patrol Trooper Brian Bairett for allegedly speeding.
According to the 10th Circuit ruling, the trooper said he became suspicious that there might be drugs in the Jeep based on Felders' nervous demeanor; inconsistencies in the reasons the trio gave for traveling to Colorado; a strong odor of air freshener; and a license plate ring on the vehicle with "Jesus" written on it.
After Felders refused to give permission for a vehicle search, Bairett called for a K-9 unit and Malcom arrived with drug-sniffing dog named Duke. A dashboard video camera in Bairett's patrol car captured the officers' conversation and their search.
The 10th Circuit ruling recounts that Malcom asked Bairett to "pull the two kids out of the car."
Bairett responded, "Yeah, that's what I was planning on doing. When they get out of the car, I'll leave the doors open."
The trooper directed Felders to remove her Chihuahua from the back of the Jeep and she left the rear hatch open, the ruling says.
Malcom walked Duke along the right side of the car and the dog almost immediately jumped into the vehicle through the open passenger door, but the video does not show whether the animal made any sounds or movements first, the ruling says. The dog eventually sat down and indicated by the driver's door. The officers then searched the vehicle for about two hours, but did not find any drugs.
Felders and the teens, who are all African-American, filed suit in December 2008 claiming the search was unconstitutional and based on racial profiling. The profiling claim has been dismissed but the issue of the legality of the search remains.
A trial judge ruled that Bairett also is not protected from being sued in this case. The trooper, who did not appeal that decision and remains a defendant in the suit, denies any wrongdoing.