F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 17 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
BRUCE OLIVER,
Plaintiff-Appellee,
v. No. 98-4179
JAMES WOODS; DALE SCOW,
Defendants-Appellants,
CITY OF CENTERVILLE; CITY OF
FARMINGTON,
Defendants.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 97-CV-106-K)
Bernard L. Allen of Richards, Caine & Allen, P.C., Ogden, Utah, for Plaintiff-
Appellee.
Karra J. Porter (Veda M. Travis with her on the briefs) of Christensen & Jensen,
P.C., and Allan L. Larson (Harry H. Souvall with him on the briefs) of Snow,
Christensen & Martineau, Salt Lake City, Utah, for Defendants-Appellants.
Before TACHA, BRORBY and EBEL, Circuit Judges.
BRORBY, Circuit Judge.
Bruce Oliver, Plaintiff-Appellee, triggered a silent alarm when he drove
into the parking lot of an auto repair shop in order to drop off his car before
business hours. Mr. Oliver refused to present identification to a police officer
who approached him in the parking lot, and was subsequently arrested for
refusing to identify himself. Mr. Oliver initiated a 42 U.S.C. § 1983 suit against
Officers James Woods and Dale Scow, Defendants-Appellants, alleging the
officers stopped him without reasonable suspicion, in violation of the Fourth
Amendment to the United States Constitution and Utah Code Ann. § 77-7-15.
The district court determined Officers Woods and Scow were not entitled to
qualified immunity, and entered partial summary judgment in favor of Mr. Oliver.
Officers Woods and Scow now appeal the district court’s denial of qualified
immunity. We exercise jurisdiction under 28 U.S.C. § 1291, and reverse.
I. Facts
Plaintiff Bruce Oliver, a criminal defense attorney, delivered his MG to
Dave’s Import Auto Shop (“Dave’s”) for servicing at approximately 6:45 a.m. on
September 25, 1995, as prearranged with Dave’s. Mr. Oliver’s seventeen-year-
old son, Michael, followed Mr. Oliver in the family’s Chrysler. Before reaching
Dave’s, Mr. Oliver pulled over near an intersection to wait for his son to catch up
with him. As Michael arrived, both father and son saw Centerville Police Officer
2
James Woods follow them to Dave’s, where Mr. Oliver parked his MG in the
parking lot in front of the shop and got into the driver’s seat of the waiting
Chrysler.
Unbeknownst to Mr. Oliver, Dave’s had been experiencing problems with
illegal oil dumping. On two previous occasions someone had placed
approximately five gallons of oil in a plastic bag in Dave’s parking lot during the
night. As a result, the Centerville Police Department installed a special silent
alarm, called a “varda” alarm, which signaled the Centerville Police anytime an
infrared beam across the driveway into Dave’s was broken. Centerville Police
Officer James Woods was aware of the problems at Dave’s, and received notice
the alarm had been tripped at 6:50 a.m. It was near dawn, but still somewhat
dark at that time. Farmington Police Officer Dale Scow also received notice the
alarm had been activated, and, because it was standard procedure for a backup
officer to respond, drove toward Dave’s.
Officer Woods approached Mr. Oliver as he sat in the Chrysler preparing
to drive home and asked Mr. Oliver for his name and proof of identification. Mr.
Oliver refused to identify himself. Mr. Oliver explained he was there to drop off
his car and asked if it was a crime to park a vehicle or if he had broken the law.
3
Officer Woods replied it was not a violation of the law to park a vehicle, and
again asked for identification. 1
Mr. Oliver refused to identify himself, quoting
Utah Code Ann. § 77-7-15, which provides:
A peace officer may stop any person in a public place when he
has a reasonable suspicion to believe he has committed or is in the
act of committing or is attempting to commit a public offense and
may demand his name, address and an explanation of his actions.
Mr. Oliver then told Officer Woods to step aside because he was leaving. Officer
Woods told Mr. Oliver he was not free to leave. Mr. Oliver drove out of the
parking lot. Officer Woods returned to his patrol car, called for backup, and
drove after Mr. Oliver.
Officer Scow was already en route to Dave’s when he was notified by the
dispatcher that the suspect had left the scene and Officer Woods had called for
backup. Coming from the opposite direction, Officer Scow soon encountered the
caravan. Officer Scow turned his car around and followed behind Officer
Woods. Officer Woods turned on his lights, and Mr. Oliver pulled over to the
side of the highway. Before approaching Mr. Oliver, Officer Woods told Officer
1
At his deposition, Officer Woods testified he told Mr. Oliver he was
investigating an alarm. Mr. Oliver testified Officer Woods did not mention the
alarm. Mr. Oliver testified Officer Woods told him he had not violated any law,
but that Utah law required Mr. Oliver to identify himself.
4
Scow he had responded to a “varda” alarm and found this vehicle in the parking
lot, but the driver refused to identify himself and drove away. Officers Woods
and Scow then approached Mr. Oliver and spoke briefly to him. The officers
then compelled Mr. Oliver to exit the car and, when he did not respond to the
officers’ order to fall to his knees quickly enough, he was forced to his knees.
Mr. Oliver asked what law he had broken, and the officers replied he had failed
to identify himself. Mr. Oliver once again cited Utah Code Ann. § 77-7-15, and
insisted he did not have to present identification. 2
Mr. Oliver was handcuffed,
2
Although there is some disparity in the deposition testimony as to exactly
what happened when Mr. Oliver was stopped on the highway, a video camera in
Officer Scow’s patrol car captured the following events. The officers walked
directly to the car and immediately opened the door, without pausing or talking to
Mr. Oliver first. Once the officers opened the door, they talked to Mr. Oliver for
about a minute, and then reached into the car to forcibly remove him. As the
officers were attempting to remove Mr. Oliver from the car, Mr. Oliver said:
“Don’t, don’t, don’t. Get your hands off me. Get your hands off me.” The
officers told Mr. Oliver to get out of the car. Mr. Oliver again told the officers to
get their hands off him, and got out of the car very quickly. The officers stepped
back and took out their mace canisters. Mr. Oliver then said: “Draw your guns
for hell’s sake. Shoot me. I don’t care.” The officers ordered Mr. Oliver to turn
around and put his hands on his head. Mr. Oliver placed his hands on his head as
directed. The officers commanded Mr. Oliver to drop to his knees. Mr. Oliver
immediately bent forward to do so, but, apparently because his hands were on his
head, paused to gain his balance. The officers immediately forced him to the
ground. They told Mr. Oliver to relax. Mr. Oliver responded: “I can’t relax
with two ass holes pushing me around like that. What law did I break?” When
told he had failed to give an officer identification, Mr. Oliver explained to them
that he was not required to give identification unless he had broken the law, and
cited Utah Stat. Ann. § 77-7-15. The officers told him that he did have to give
identification and asked why he did not identify himself. Mr. Oliver strongly
insisted he did not have to identify himself and cited Utah Stat. Ann. § 77-7-15
5
guided back to Officer Scow’s patrol car, and arrested. At that point, the
following dialogue between Officers Woods and Scow took place:
Officer Woods: He asked if he’d broken any laws by dropping off
his vehicle, and I told him no.
Officer Scow: He didn’t, but he still has to identify himself.
Officer Woods: What code is that?
Officer Scow: I don’t know exactly what code it is, to tell you the
truth.
Officer Woods then explained: “This guy was driving because they dropped off
two vehicles. So he was driving this car. He’s gotta learn....”
Officer Scow drove Mr. Oliver to the Davis County Jail 3
where he was
charged with violating Utah Code Ann. § 77-7-15. Learning no criminal
sanctions were authorized for violating § 77-7-15, the prosecutor amended the
once again. Utah Highway Patrol Trooper Eric McPherson then arrived on the
scene.
3
While transporting Mr. Oliver to the police station, Officer Scow had a
conversation with Mr. Oliver. Mr. Oliver’s statements are not audible on the
video tape, but Officer Scow explained, apparently in response to Mr. Oliver’s
questions, that Centerville City set up an alarm at Dave’s Auto Imports because
they were “having problems there.” Officer Scow further explained he did not
work for Centerville City. Mr. Oliver asked two questions to which Officer
Scow responded “I don’t know.” Officer Scow then stated: “All you have to do
is identify yourself and tell him what’s going on.” Mr. Oliver made some
response to that statement, and Officer Scow stated: “Well, you have now.”
6
charge to violation of Motor Vehicle Code 41a-214, failing to display motor
vehicle registration. A Justice of the Peace dismissed the case, finding the
officers lacked reasonable suspicion that Mr. Oliver violated the law.
Mr. Oliver subsequently brought suit pursuant to 42 U.S.C. § 1983 against
Officer Woods and his employer, the City of Centerville, and Officer Scow and
his employer, the City of Farmington. 4
Mr. Oliver claimed he was subjected to
an illegal seizure in violation of the Fourth Amendment to the United States
Constitution, Section I of the Utah Constitution, and Utah Code Ann. § 77-7-15.
He also asserted various tort claims under Utah law. Officers Scow and Woods
moved for summary judgment, claiming they were entitled to qualified immunity
because they had not violated Mr. Oliver’s clearly established constitutional
rights. Mr. Oliver opposed the defendants’ motion for summary judgment and
filed a cross-motion for partial summary judgment on the issue of liability, asking
the court to rule, based on the undisputed facts, that his arrest was
unconstitutional.
4
Mr. Oliver also brought suit against Highway Patrol Trooper Eric
McPherson, the Utah Department of Public Safety, and the Director of the
Department of Public Safety, Craig Deardon. These claims are not at issue in this
appeal.
7
The district court determined Officers Woods and Scow violated Mr.
Oliver’s clearly established Fourth Amendment rights and were therefore not
entitled to qualified immunity. The court determined Mr. Oliver’s arrest violated
the Fourth Amendment because Officer Woods had no reasonable suspicion of
criminal activity when he detained Mr. Oliver in the parking lot, and Officer
Scow was unreasonable in relying upon the information provided by Officer
Woods concerning the original suspicion of criminal activity. The court granted
Mr. Oliver’s cross-motion for partial summary judgment, finding Officers Woods
and Scow liable with respect to the § 1983 claims. The court granted the
defendants’ motions for summary judgment on the state law tort claims, and
dismissed Mr. Oliver’s claims against the municipalities. The only claims at
issue in this appeal are Mr. Oliver’s § 1983 claims against Officers Woods and
Scow.
II. The Denial of the Officers’ Motions for Summary Judgment
Officers Woods and Scow contend the district court erred by determining
they violated Mr. Oliver’s clearly established constitutional rights, and therefore
erred by denying their motions for summary judgment based on qualified
immunity.
8
A. Standard of Review
We review the denial of summary judgment on the grounds of qualified
immunity de novo . Baptiste v. J.C. Penny Co. , 147 F.3d 1252, 1255 (10th Cir.
1998). In general, summary judgment is appropriate when “‘there is no genuine
issue as to any material fact and ... the moving party is entitled to judgment as a
matter of law.’” Seymore v. Shawver & Sons, Inc ., 111 F.3d 794, 797 (10th Cir.)
(quoting Fed. R. Civ. P. 56(c)), cert. denied , 522 U.S. 935 (1997). Under the
summary judgment standard, we view the evidence in the light most favorable to
the nonmoving party, but that party must set forth specific facts as to those
dispositive matters for which it carries the burden of proof in order to
demonstrate a genuine issue for trial. Muck v. United States , 3 F.3d 1378, 1380
(10th Cir. 1993). However, summary judgment decisions involving a qualified
immunity defense are subject to a somewhat different analysis on review than are
other summary judgment rulings. Romero v. Fay , 45 F.3d 1472, 1475 (10th Cir.
1995).
“Qualified immunity is designed to shield public officials from liability
and ensure that erroneous suits do not even go to trial.” Albright v. Rodriguez ,
51 F.3d 1531, 1534 (10th Cir. 1995) (quotation marks and citations omitted).
“The entitlement to qualified immunity is an immunity from suit rather than a
9
mere defense to liability; and like an absolute immunity, it is effectively lost if a
case is erroneously permitted to go to trial.” Pallottino v. City of Rio Rancho , 31
F.3d 1023, 1026 (10th Cir. 1994) (quotation marks and citations omitted). Thus,
immunity questions should be resolved as early as possible in litigation.
Albright , 51 F.3d at 1534. When a claim of qualified immunity is raised in a
defendant’s motion for summary judgment, the plaintiff must show the
defendant’s actions violated a specific statutory or constitutional right, and “the
constitutional or statutory rights the defendant allegedly violated were clearly
established at the time of the conduct at issue.” Id. The trial court decides as a
matter of law whether the plaintiff’s allegations, if true, state a claim for a
violation of a clearly established constitutional right. See Romero , 45 F.3d at
1475. “‘Ordinarily, in order for the law to be clearly established, there must be a
Supreme Court or Tenth Circuit decision on point, or the clearly established
weight of authority from other courts must have found the law to be as the
plaintiff maintains.’” Albright , 51 F.3d at 1535 (quoting Medina v. City &
County of Denver , 960 F.2d 1493, 1498 (10th Cir. 1992)). Whether the asserted
right was clearly established at the time of the conduct at issue is a question of
law we review de novo . Romero , 45 F.3d at 1475. If the plaintiff fails to show
the defendants violated a constitutional or statutory right, or that the asserted
violation was clearly established under the law, the defendant is entitled to
10
qualified immunity. See Albright , 51 F.3d at 1535 . If the trial court determines
the plaintiff has “sufficiently alleged the conduct violated clearly established law,
then the defendant bears the burden, as a movant for summary judgment, of
showing no material issues of fact remain that would defeat the claim of qualified
immunity.” Romero , 45 F.3d at 1475 (quotation marks and citations omitted). 5
B. Violation of a Clearly Established Constitutional Right
The officers contend they were entitled to summary judgment based on
qualified immunity because Mr. Oliver failed to show his clearly established
constitutional rights were violated. Specifically, the officers argue Officer
Woods had reasonable suspicion to detain Mr. Oliver in order to investigate
possible criminal activity. They further argue Officer Woods’ reasonable
suspicion of criminal activity ripened into probable cause to believe Mr. Oliver
5
In their notice of appeal, Officers Woods and Scow indicate their intent
to appeal the “District Court’s order dated September 28, 1998, and entered
September 29, 1998, denying these defendants qualified immunity.” In their
opening brief, Officers Woods and Scow only address the denial of their motions
for summary judgment, arguing it was improper because they were entitled to
qualified immunity. Thus, we do not address the officers’ argument, contained in
their reply brief, that the court improperly granted Mr. Oliver’s motion for partial
summary judgment on the issue of their liability for the § 1983 claims. See State
Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994) (failure to
raise an issue in the opening brief waives the issue). However, the reversal of the
district court’s determination of qualified immunity protects Officers Woods and
Scow from liability on the § 1983 claims.
11
violated Utah law when he refused to identify himself and left the parking lot.
1. The Initial Investigative Detention
We first determine whether Officer Woods violated Mr. Oliver’s clearly
established constitutional rights when he initially detained Mr. Oliver in Dave’s
parking lot.
The Fourth Amendment to the Constitution guarantees “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause.” U.S. Const. amend. IV. The Supreme Court has
identified three types of police/citizen encounters: consensual encounters,
investigative stops, and arrests. See United States v. Cooper , 733 F.2d 1360,
1363 (10th Cir.), cert. denied , 467 U.S. 1255 (1984). Consensual encounters are
not seizures within the meaning of the Fourth Amendment, and need not be
supported by suspicion of criminal wrongdoing. See Florida v. Royer, 460 U.S.
491, 497-98 (1983). An officer is free to approach people and ask questions
without violating the Fourth Amendment. Id. However, the person approached
under these circumstances is free to refuse to answer questions and to end the
encounter. Id. On the opposite extreme are arrests, which are “characterized by
12
highly intrusive or lengthy search or detention.” Cooper , 733 F.2d at 1363. An
officer may make an arrest without a warrant if the officer has probable cause to
believe a crime has been committed by the arrestee. See Romero , 45 F.3d at
1476. “Probable cause exists if facts and circumstances within the arresting
officer’s knowledge and of which he or she has reasonably trustworthy
information are sufficient to lead a prudent person to believe that the arrestee has
committed or is committing an offense.” Id. (quotation marks and citations
omitted).
An investigative detention, which is also referred to as a Terry stop, is a
seizure within the meaning of the Fourth Amendment, but unlike an arrest, it
need not be supported by probable cause. See United States v. Espinosa , 782
F.2d 888, 890 (10th Cir. 1986) (citing Terry v. Ohio , 392 U.S. 1 (1968)). “[T]he
police can stop and briefly detain a person for investigative purposes if the
officer has a reasonable suspicion supported by articulable facts that criminal
activity ‘may be afoot,’ even if the officer lacks probable cause.” United States
v. Sokolow , 490 U.S. 1, 7 (1989) (quoting Terry , 392 U.S. at 30). Based on the
totality of the circumstances, the detaining officer “must have a particularized
and objective basis for suspecting the particular person stopped of criminal
activity.” United States v. Cortez , 449 U.S. 411, 417-18 (1981). When the
13
officer has stopped a person based on reasonable suspicion of criminal activity,
the officer may briefly detain the individual “in order to determine his identity or
to maintain the status quo momentarily while obtaining more information.”
Adams v. Williams , 407 U.S. 143, 146 (1972). Utah Code Ann. § 77-7-15, the
statute which Mr. Oliver was originally arrested for violating, codifies the
requirements for an investigative detention.
The officers contend the following facts formed the basis of Officer
Woods’ reasonable articulable suspicion of criminal activity: (1) The “varda”
alarm was triggered when Mr. Oliver drove into the parking lot; (2) Mr. Oliver
was at Dave’s before business hours, near dawn, at 6:45 a.m.; (3) The alarm was
installed because there had been two instances of illegal oil dumping at Dave’s;
and (4) Mr. Oliver did not cooperate with Officer Woods’ demand to produce
identification, and left the parking lot. Mr. Oliver argues his presence and
behavior in Dave’s parking lot were entirely consistent with innocent behavior,
and thus, could not lead to a reasonable suspicion of criminal activity.
The officers list a number of cases in support of their argument that
Officer Woods reasonably suspected Mr. Oliver of criminal activity based on his
presence near the activated “varda” alarm, including United States v. Doyle , 129
14
F.3d 1372 (10th Cir. 1997). In Doyle , the border patrol installed a silent alarm
on a little-used dirt road that crossed the United States/Mexico border. Id. at
1373-74. When a border patrol agent was informed the sensor had been
activated, he calculated the amount of time it would take a car to get from the
point where the sensor had been triggered to his location on the only highway
leading out of the area. Id. at 1374. The car arrived at the agent’s location
within the estimated time frame. Id. The agent noticed several other factors that
contributed to his belief the car had entered the United States illegally. Id. The
car was the kind of vehicle often used by smugglers, and the agent knew the
highway was used as a corridor to smuggle narcotics and illegal aliens. Id.
There were no other cars on the highway immediately in front of or behind the
car. Id. While following the car, the agent called in the vehicle’s license number
and discovered it had not been recorded as legitimately crossing through a port of
entry in the preceding seventy-two-hour time period. Id. It had not. Id. The
agent also noticed a branch was caught in its trim, which was consistent with the
brush-lined highway between the sensor and the officer’s location. Id. The agent
then decided he would stop the vehicle and question the driver. Id. This court
determined the above factors led the agent to reasonably believe the car had made
an illegal entry into the United States. Id. at 1376.
15
To counter the officers’ argument that the case at bar is controlled by
Doyle , Mr. Oliver argues this case is more similar to Brown v. Texas , 443 U.S. 47
(1979). In Brown , two police officers approached Mr. Brown in an alley in a part
of town where drug transactions were known to occur. Id. at 48-49. The officers
asked Mr. Brown to identify himself and explain what he was doing there. Id.
When Mr. Brown angrily refused to identify himself and asserted the officers had
no right to stop him, one of the officers replied that he was in a “high drug
problem area.” Id. at 49. The other officer frisked Mr. Brown, but found
nothing. Id. When Mr. Brown continued to refuse to identify himself, the
officers arrested him for violating Texas Penal Code Ann. §38.02(a) , which
provides: “‘A person commits an offense if he intentionally refuses to report or
gives a false report of his name and residence address to a peace officer who has
lawfully stopped him and requested the information.’” Brown , 443 U.S. at 49 n.1
(quoting Texas Penal Code Ann. §38.02(a), Failure to Identify as Witness). The
Court held the application of the statute was in violation of Mr. Brown’s Fourth
Amendment rights because the officers lacked any basis for suspecting Mr.
Brown of misconduct, and had stopped him only in order to ascertain his identity.
Id. at 49, 52-53.
The facts of the present case fall somewhere in between Brown and Doyle .
16
While the activation of the alarm and the surrounding circumstances in the
present case are not as compelling as the facts in Doyle , they certainly provide a
greater basis for suspicion of criminal activity than the facts of Brown . Thus,
under the totality of the circumstances, we cannot fault Officer Woods for
approaching Mr. Oliver in order to ascertain the reason for his presence in the
parking lot. Officer Woods knew the “varda” alarm had been set at the request of
the owner of Dave’s due to illegal oil dumping in the parking lot. The business
was closed and it was near dawn when Officer Woods observed Mr. Oliver in the
parking lot after the alarm was triggered. Even though Officer Woods testified at
his deposition that, as he approached Mr. Oliver, he saw nothing in particular to
indicate Mr. Oliver was engaged in illegal oil dumping or any other crime, and
that he knew “varda” alarms were tripped by innocent people “all the time,”
based on the totality of the circumstances known to him, Officer Woods could
have reasonably suspected Mr. Oliver was engaged in illegal activity such as
trespass or oil dumping. 6
Although Mr. Oliver’s actions were consistent with
6
In support of their argument that Officer Woods had reasonable suspicion
of criminal activity when he initially detained Mr. Oliver in the parking lot, the
defendants cite a number of cases involving interior burglar alarms and cases
where the individual flees a police investigation. These cases are distinguishable.
Although we consider the triggering of the “varda” alarm to be one of the factors
that gave rise to a reasonable suspicion of criminal activity under the totality of
the circumstances, we recognize the triggering of an exterior alarm set on a
business’ driveway is less indicative of criminal activity than is the activation of
an interior burglar alarm. We also reject the officers’ comparison of this case to
17
innocent behavior, the Supreme Court in Terry acknowledged even ambiguous
behavior, susceptible to an innocent interpretation, may give rise to a reasonable
suspicion of criminal activity depending on the totality of the circumstances.
Terry , 392 U.S. at 22-23. See also Illinois v. Wardlow , ___ U.S. ___, 120 S. Ct.
673 (2000) (flight from the scene of an investigation in a high crime area,
although it may also be consistent with innocence, may give rise to reasonable
suspicion of criminal activity sufficient to support a Terry stop). 7
2. The Arrest
Having determined Officer Woods did not violate Mr. Oliver’s clearly
established constitutional rights when he detained Mr. Oliver in Dave’s parking
lot, we now turn to the constitutionality of Mr. Oliver’s arrest. The officers
those involving flight from the police. Mr. Oliver did not flee Officer Woods.
He terminated the encounter after waiting for Officer Woods to approach the car
and after talking to Officer Woods.
7
Although we hold the facts of this case give rise to a reasonable
suspicion of criminal activity, we note this is a very close case. Reasonable
suspicion is a constitutionally mandated prerequisite for an investigative
detention, and we caution law enforcement officers not to read this opinion as
giving them carte blanche to stop any individual, regardless of the circumstances,
in order to demand identification. We trust officers will keep these constitutional
parameters in mind when performing their duties, and will not be influenced by
the desire to use the law to vindicate any perceived affronts to their authority by
citizens exercising their constitutionally protected right to terminate consensual
encounters with the police.
18
contend Officer Woods’ suspicion of criminal activity ripened into probable
cause to believe Mr. Oliver had violated Utah law when he refused to identify
himself and left the parking lot. Specifically, the officers claim Officer Woods
could have reasonably believed Mr. Oliver: (1) refused to present a driver’s
license, in violation of Utah Code Ann. § 53-3-217; (2) interfered with a public
servant, in violation of Utah Code Ann. § 76-8-301(1); and (3) interfered with a
lawful detention, in violation of Utah Code Ann. § 76-8-305. 8
“When a warrantless arrest is the subject of a § 1983 action, the defendant
arresting officer is entitled to immunity if a reasonable officer could have
believed that probable cause existed to arrest the plaintiff.” Albright , 51 F.3d at
1536 (quotation marks and citations omitted). As stated previously: “Probable
cause exists if the facts and circumstances within the arresting officer’s
knowledge and of which he or she has reasonably trustworthy information are
sufficient to lead a prudent person to believe that the arrestee has committed or is
committing an offense.” Romero , 45 F.3d at 1476 (quotation marks and citations
omitted). “Even law enforcement officials who reasonably but mistakenly
8
The officers also contend Officer Woods had probable cause to arrest
Mr. Oliver pursuant to Utah Code Ann. § 77-7-15. However, that statute
provides no criminal sanctions for refusing to present identification when
requested by an officer, and thus, cannot be used to support the arrest.
19
conclude that probable cause is present are entitled to immunity.” Id. (quotation
marks and citations omitted).
Utah Code Ann. § 76-8-305 provides:
A person is guilty of a class B misdemeanor if he has
knowledge, or by the exercise of reasonable care should have
knowledge, that a peace officer is seeking to effect a lawful arrest or
detention of that person or another and interferes with the arrest or
detention by:
(1) use of force or any weapon;
(2) the arrested person's refusal to perform any act required by
lawful order:
(a) necessary to effect the arrest or detention; and
(b) made by a peace officer involved in the arrest or
detention; or
(3) the arrested person's or another person's refusal to refrain
from performing any act that would impede the arrest or detention.
This section plainly applies to interference with a lawful detention. Officer
Woods made it clear Mr. Oliver was being detained in the parking lot. As
discussed previously, this detention was lawful because it was based on
reasonable suspicion of criminal activity. Section 76-8-305 does not require the
use of force; mere refusal to perform any act required by a lawful order necessary
to effect the detention is sufficient to constitute a violation of § 76-8-305.
Moreover, an individual who merely refuses to refrain from performing any act
20
that would impede the arrest or detention violates this section. Mr. Oliver’s
actions in the parking lot and on the highway fit the statute’s definition of
interference with an officer seeking to effect a lawful detention.
Furthermore, we conclude the orders Officer Woods gave Mr. Oliver were
lawful and in furtherance of the detention. When an officer is conducting a
lawful investigative detention based on reasonable suspicion of criminal activity,
the officer may ask for identification and for an explanation of the suspect’s
presence in the area. See Adams , 407 U.S. at 146. See also United States v.
Walker , 933 F.2d 812, 816 (10th Cir. 1991) (officers may ask for a driver’s
license during a lawful routine traffic stop), cert. denied , 502 U.S. 1093 (1992) .
The officer is also permitted to detain the individual until the investigation is
completed. See United States v. Trimble , 986 F.2d 394, 397-98 (10th Cir.)
(where a passenger in a car lawfully stopped by the police attempted to leave the
area over the objection of the police officer, this court held “when [the
passenger] proceeded to leave the scene of the stop, [the officer] was entitled to
detain him for purposes of identification in order to ascertain ‘what’s going on.’
Such action was in keeping with good police work, and the intrusion was
minimal.” (citation omitted)), cert. denied , 508 U.S. 965 (1993). Thus, Officer
Woods gave a lawful order when he told Mr. Oliver to present identification and
21
to remain in the parking lot while he conducted the investigation. By refusing to
present identification, Mr. Oliver refused to perform an act required by lawful
order, necessary to effect the detention. By leaving the parking lot, Mr. Oliver
performed an act that impeded the detention. Consequently, Officer Woods could
have reasonably believed Mr. Oliver violated Utah Code. Ann. § 76-8-305(2),
and (3). 9 Thus, Officer Woods did not violate Mr. Oliver’s Fourth Amendment
rights by placing him under arrest. 10
9
Because we determine Officer Woods had probable cause to arrest Mr.
Oliver for violating Utah Code Ann. § 76-8-305, we need not address whether a
reasonable officer could have concluded Mr. Oliver violated Utah Code Ann.
§ 53-3-217 and Utah Code Ann. § 76-8-301.
10
There is no case under Utah law dealing with a person refusing to
present identification as the sole basis for a conviction under § 76-8-305.
However, other courts have held a refusal to present identification during an
investigative detention supported by reasonable suspicion of criminal activity
constitutes an independent illegal act sufficient to support a conviction for
obstruction under similar statutes. See 66 A.L.R. 5th 397 §16(a) (1999) (listing
cases). In Albright , the plaintiff was arrested by a border patrol agent when he
refused to present identification after the plaintiff had been lawfully stopped. 51
F.3d at 1536-38. We determined the initial Terry stop was founded upon
reasonable suspicion of criminal activity, and the arresting border patrol agent
was entitled to qualified immunity because the agent “could have reasonably
concluded Plaintiff concealed his identity ‘with intent to obstruct the due
execution of the law or with intent to intimidate, hinder or interrupt any public
officer or any other person in a legal performance of his duty’” in violation of
N.M. Stat. Ann. § 30-22-3. Albright , 51 F.3d at 1537. Although the New
Mexico statute analyzed in Albright more clearly criminalized the plaintiff’s
refusal to present identification in a lawful Terry stop, we believe Albright is
analogous to the present case, and conclude Officer Woods could have
reasonably believed Mr. Oliver violated Utah Code Ann. § 76-8-305 by refusing
to identify himself.
22
Finally, we conclude Mr. Oliver had no clearly established constitutional
right to violate Utah Code Ann. § 76-8-305 by refusing to identify himself and by
leaving Dave’s parking lot. In Brown , the Supreme Court made it clear the
Fourth Amendment does not permit officers to arrest an individual simply
because he or she refuses to present identification when the officers have no
basis whatsoever to suspect the individual of criminal conduct to support the
initial detention. This is the case even when a state statute might seem to furnish
the authority to do so. 443 U.S. at 52-53 . However, the Supreme Court
expressly declined to address whether an individual has the right to refuse to
present identification during a lawful investigative detention. Id. at 53 n.3. In
Kolender v. Lawson , 461 U.S. 352 (1983), the court once again turned down the
opportunity to address this issue. Id. at 361 n.10 (declining to address whether a
California statute which required an individual to present identification in the
context of a lawful investigative stop was in violation of the Fourth Amendment).
Furthermore, in Albright , this court expressly held the right to refuse to present
identification in the context of a lawful investigative detention has not been
clearly established. 51 F.3d at 1537-38. See also Gainor v. Rogers , 973 F.2d
1379, 1386 n.10 (8th Cir. 1992) (noting the Supreme Court has not determined if
a person can be lawfully arrested for refusing to identify himself or herself in the
23
context of a lawful investigative stop). See also Tom v. Voida , 963 F.2d 952, 959
& n.8 (7th Cir. 1992) (concluding it is an open question whether citizens can
refuse to respond to questions posed during lawful investigative stops) . Because
the initial stop was based on reasonable suspicion of criminal activity, the
application of Utah Code Ann. § 76-8-305 to the present situation would not
violate Mr. Oliver’s clearly established rights.
C. Officer Woods’ Entitlement to Qualified Immunity
Mr. Oliver failed to show Officer Woods violated his clearly established
constitutional or statutory rights. Because the initial stop was lawful, Mr. Oliver
had no clearly established constitutional right to refuse to identify himself and to
terminate the encounter. Even though the record indicates Officer Woods no
longer suspected Mr. Oliver of illegal oil dumping, trespass, or any other illegal
act in the parking lot connected to his original suspicion of criminal activity,
Officer Woods could have reasonably believed he had probable cause to arrest
Mr. Oliver for violating § 76-8-305 when Mr. Oliver refused to identify himself
and left the parking lot. We conclude Officer Woods is entitled to qualified
immunity.
D. Officer Scow’s Entitlement to Qualified Immunity
24
The district court determined Officer Scow was not entitled to qualified
immunity because the facts related to him by Officer Woods and the dispatcher
were inadequate to justify Officer Scow’s belief that a crime had been committed.
The district court stated:
Like Officer Woods, Officer Scow knew that the alarm was not a
burglar alarm, but an exterior alarm that was tripped simply by
breaking an infrared beam. He also knew that Officer Woods was
inexperienced, yet passed up the opportunity to elicit further details
from him before they approached Oliver’s Chrysler.
Police officers are entitled to rely upon information relayed to them by
other officers in determining whether there is reasonable suspicion to justify an
investigative detention or probable cause to arrest. See Albright , 51 F.3d at 1536
(citing United States v. Maestas , 2 F.3d 1485, 1493 (10th Cir. 1993); United
States v. Torres , 663 F.2d 1019, 1022 (10th Cir. 1981), cert. denied , 456 U.S.
973 (1982)). As the Supreme Court noted in United States v. Hensley , 469 U.S.
221 (1985):
“[E]ffective law enforcement cannot be conducted unless police
officers can act on directions and information transmitted by one
officer to another and ... officers, who must often act swiftly, cannot
be expected to cross-examine their fellow officers about the
foundation for the transmitted information.”
Id. at 231 (quoting United States v. Robinson , 536 F.2d 1298, 1299 (9th Cir.
1976)). However, the reliance upon this information must be objectively
reasonable. Baptiste , 147 F.3d at 1260 (“a police officer who acts ‘in reliance on
25
what proves to be the flawed conclusions of a fellow police officer’ may
nonetheless be entitled to qualified immunity as long as the officer's reliance was
‘objectively reasonable.’” (quoting Rogers v. Powell , 120 F.3d 446, 455 (3d Cir.
1997))).
As Officer Scow responded to the call to assist Officer Woods, he learned
an alarm had been activated and the suspect had left the scene. Before the
officers approached Mr. Oliver on the highway, Officer Woods told Officer Scow
a “varda” alarm had been triggered. Officer Woods also told Officer Scow he
found the suspect in a car in the parking lot where the alarm had been activated
and the suspect drove away after refusing to identify himself. We conclude this
information was sufficient to justify Officer Scow’s reliance upon Officer
Woods’ determination of reasonable suspicion of criminal activity. Officer Scow
was not required to interrogate Officer Woods concerning every facet of his
original suspicion of Mr. Oliver. Officer Scow was also not required to inquire
further into Officer Woods’ original suspicion of criminal activity simply because
Officer Woods was less experienced than Officer Scow. Officer Scow’s reliance
on Officer Woods’ determination of reasonable suspicion for the original stop
was objectively reasonable based on the facts related to him by Officer Woods.
26
Furthermore, based on the information related to him by Officer Woods,
Officer Scow could have reasonably believed Mr. Oliver violated Utah Code
Ann. § 76-8-305 when he refused to identify himself and left Dave’s parking lot.
Even after Officer Scow became aware that Officer Woods no longer suspected
Mr. Oliver of criminal activity in connection with the activation of the “varda”
alarm, but was only pursuing Mr. Oliver because he refused to identify himself,
Officer Scow could reasonably believe the officers had probable cause to arrest
Mr. Oliver for refusing to identify himself and leaving the scene of the
investigation. Moreover, Officer Scow personally observed Mr. Oliver refuse to
identify himself on the highway. Thus, Officer Scow did not violate Mr. Oliver’s
clearly established constitutional rights by arresting Mr. Oliver. Therefore, we
conclude Officer Scow is entitled to qualified immunity.
The judgment of the United States District Court for the District of Utah is
REVERSED and REMANDED for further proceedings in accordance with this
opinion.
27
Oliver v. Woods , 98-4179
EBEL , Circuit Judge, Dissenting in part and Concurring in part.
I disagree with the majority’s conclusion that Officer Woods is entitled to
qualified immunity on summary judgment. An individual’s clearly established
right to be free of unreasonable searches and seizures is violated when a law
enforcement officer attempts to detain him or her without at least reasonable
suspicion supported by articulable facts of wrongdoing. See United States v.
Espinosa , 782 F.2d 888, 890 (10th Cir. 1986). Absent such reasonable suspicion
or probable cause, an officer may stop and question only with the consent of the
individual. See id. By definition, an individual may terminate a consensual
encounter without detriment. In the present case, in my view, Mr. Oliver
attempted to terminate a consensual encounter with Officer Woods and Officer
Woods violated his clearly established Fourth Amendment rights by the
subsequent stop and arrest.
As the majority correctly notes, we examine the totality of the
circumstances and ask whether the officer had “a particularized and objective
basis for suspecting the particular person stopped of criminal activity.” United
States v. Cortez , 449 U.S. 411, 417-18 (1981). If no such basis exists, then the
officer lacks the authority to conduct more than a consensual encounter. Viewed
in the proper context, the facts of the present case do not form a “particularized
and objective basis” for suspecting Mr. Oliver of criminal wrongdoing.
Consequently, Officer Woods was entitled to question Mr. Oliver only with the
latter’s consent, and Mr. Oliver therefore had no duty to identify himself before
leaving the premises.
Under the summary judgment standard, we accept the following facts as
true. Officer Woods turned around and followed the cars of Mr. Oliver and his
son into the parking lot of Dave’s Import Auto Shop shortly before opening. Mr.
Oliver exited his vehicle, left it at the auto shop, and got into the driver’s seat of
the second car. Officer Woods admitted that he saw no evidence that Mr. Oliver
had deposited any items in the parking lot of the shop, other than the car he had
parked.
It is not disputed that a “varda” alarm had been installed on the premises in
response to two instances of illegal oil dumping, and that Officer Woods was
aware of the alarm and the reason for the installation. Nevertheless, the alarm
indicated only that a vehicle had entered the public parking lot of an auto repair
shop, where it was routine for customers to leave their automobiles prior to
opening. This fact sharply distinguishes the present case from those involving
interior burglar alarms, where a much higher presumption of wrongdoing arises
upon activation. Similarly, this case is unlike United States v. Doyle , 129 F.3d
1372 (10th Cir. 1997), where an alarm had been installed on a road crossing the
border between the United States and Mexico. The officer in Doyle had a
number of valid reasons to suspect criminal activity because, among other things,
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the vehicle had most likely tripped a hidden sensor monitoring traffic across the
international border at an unauthorized checkpoint, and because he had verified
that the vehicle had not legally crossed the border in the past seventy-two hours.
By contrast, merely entering the driveway of Dave’s Import Auto Shop shortly
before opening does not even remotely suggest criminal wrongdoing. Indeed, it
seems extremely unlikely that a potential oil-dumper would illegally dump oil and
then leave behind his own car for repairs. Viewed in this context, and in light of
the complete absence of other indicia of criminal activity, the facts in this case
cannot support the reasonable suspicion necessary to detain Mr. Oliver.
If there is no reasonable suspicion to question Mr. Oliver, then the
encounter was merely consensual. As such, Mr. Oliver was free to leave at any
time, without identifying himself to Officer Woods. Of course, terminating a
consensual encounter does not justify further detention, and thus the subsequent
stop and arrest were improper. Officer Woods violated the clearly established
constitutional right of Mr. Oliver by attempting to detain him without a
reasonable suspicion of wrongdoing. Officer Woods is therefore not entitled to
qualified immunity for his actions on summary judgment.
I agree, however, with the majority’s conclusion with regard to Officer
Scow. It is clear that “[o]fficers may rely on information furnished by other law
enforcement officials to establish reasonable suspicion and to develop probable
-3-
cause for an arrest.” See Albright v. Rodriguez , 51 F.3d 1531, 1536 (citations
omitted). Based on the brief exchange between Officer Woods and Officer Scow
when the latter arrived on the scene, it appears that Officer Scow received
incomplete information describing the preceding events. Officer Scow was not,
however, obligated to “cross-examine [his] fellow officer[] about the foundation
for the transmitted information.” United States v. Hensley , 469 U.S. 221, 231
(1985) (internal quotation marks omitted). It was sufficient that Officer Scow
reasonably believed Officer Woods had properly required Oliver to identify
himself. Even though Woods later concluded and informed Scow that Oliver was
no longer under suspicion for dumping oil, the fact that Oliver refused to identify
himself was sufficient to justify Scow’s actions as long as he reasonably believed
Woods’ initial encounter was supported by reasonable suspicion. Under the
circumstances, Officer Scow’s reliance upon Officer Woods’ conclusions was
objectively reasonable, see Baptiste v. J.C. Penny Co. , 147 F.3d, 1252, 1260
(10th Cir. 1998), and he is therefore entitled to qualified immunity.
Because I believe Officer Woods had no reasonable basis to support more
than a consensual stop of Mr. Oliver, I respectfully dissent from the majority’s
conclusion that Officer Woods is entitled to qualified immunity on summary
judgment. I concur in the majority’s determination that Officer Scow is entitled
to qualified immunity on summary judgment.
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