F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 8 1997
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
KRISTIN FOOTE,
Plaintiff-Appellee,
v. No. 95-4178
ROGER SPIEGEL and ROBERT HOWE,
Defendants-Appellants,
and
JEFFREY L. GRAVIET and ERIC
McPHERSON,
Defendants,
WEBER COUNTY SHERIFF'S
DEPARTMENT,
Movant.
KRISTIN FOOTE,
Plaintiff-Appellant,
v. No. 95-4179
ROGER SPIEGEL, ROBERT HOWE,
JEFFREY L. GRAVIET and ERIC
McPHERSON,
Defendants-Appellees,
WEBER COUNTY SHERIFF'S
DEPARTMENT,
Movant.
Appeal from United States District Court
for the District of Utah
(D.C. No. 94-CV-754)
Dan R. Larsen, Assistant Attorney General, (Rebecca D. Waldron, Assistant Attorney
General, and Jan Graham, Attorney General, with him on the brief), Salt Lake City, Utah,
for the defendants-appellants.
W. Andrew McCullough, of McCullough, Jones & Ivins, Orem, Utah (Jensie L.
Anderson, of American Civil Liberties Union of Utah Foundation, Inc., Salt Lake City,
Utah, with him on the brief), for the plaintiff-appellee.
Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.
BRISCOE, Circuit Judge.
Roger Spiegel and Robert Howe, Utah highway patrol officers, appeal the partial
summary judgment denying them qualified immunity against Kristin Foote's claims under
42 U.S.C. § 1983 that she was illegally detained and subjected to a strip search. Foote
cross-appeals the portions of the summary judgment order adverse to her. We dismiss
Foote's cross-appeal and a portion of defendants' appeal for lack of jurisdiction, reverse in
part the district court's denial of qualified immunity for the detention, affirm the denial of
qualified immunity for the strip search, and remand for further proceedings.
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I.
Foote was driving her vehicle north in the left lane of Utah Highway 89 (a four-
lane undivided highway with a speed limit of 55 mph and no posted minimum speed) in
the early afternoon of May 8, 1994. Her four-year-old daughter was in the back seat, and
a friend, Jarvis Latteier, was in the front passenger seat. Latteier had very long blond
hair, and tattoos were visible on his arms because he was wearing a tank top. Foote had
just bought the vehicle and it had no license plates, but it did have a temporary paper
registration permit on the left rear window.
Howe was driving his patrol car north in the right lane of Highway 89. As Foote's
vehicle began to pass the patrol car, Howe noticed it had no front license plate. Howe
slowed his patrol car and, as Foote's vehicle began to pass, he looked through the
vehicle's rear window at the back of the temporary registration. Howe testified he could
see the handwritten date on the registration which had bled through the paper and he
thought it might have been altered. Foote's vehicle slowed and Howe's suspicions
increased. Howe again slowed his patrol car and pulled it into the left lane behind Foote's
vehicle and started the video camera mounted on the dashboard of the patrol car.
As the videotape started, Howe stated Foote slowed her vehicle to 40 mph, that she
would not move out of the left lane, and that traffic was piling up behind her vehicle. The
district court found the tape showed Foote was keeping up with traffic. The videotape
indicates there is an intersection with traffic lights and a left turn lane, which could
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provide a reason to slow down, but Foote did not turn left. Howe stated Foote increased
the speed of her vehicle to 55 mph after she went past the intersection. Howe turned on
the patrol car's overhead lights. Foote did not respond for several seconds, but she
eventually activated her vehicle's right turn signal, crossed the centerline on her left,
pulled to the right through a gap in the traffic, and stopped her vehicle on the right
shoulder of the highway. Howe noticed Latteier was not wearing a seat belt.
Howe stopped his patrol car behind Foote's vehicle and approached Foote's vehicle
on foot. He hesitated momentarily at the rear of Foote's vehicle before walking to the
passenger side of Foote's vehicle to ask for Foote's driver's license and for Latteier's
identification. He then walked to the back of the vehicle and looked at the temporary
registration. He then walked to the driver's side of the vehicle and told Foote he had
stopped her because he thought the registration might have been altered, but that upon
closer inspection it was fine. Howe said, "Another thing, you were in the left hand lane
and you start going 40 miles an hour, it starts causing problems you know what I mean, I
mean traffic was piled up behind us." Appellant's append. III at 446. Foote responded,
"My car doesn't go up hill very well." Id. Howe replied, "No, you weren't on a hill." Id.
The tape confirms Foote's vehicle was not going uphill while traveling in the left lane.
Howe observed that Foote's eyes were bloodshot and that her voice and response
were slow. Her response to Howe's initial comment is barely audible on the tape, but the
remainder of the tape shows her speech was markedly slow. These factors, plus the
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driving pattern and the absence of an odor of alcohol, led Howe to suspect Foote was
under the influence of drugs, specifically marijuana. Howe asked Foote to get out of the
vehicle and asked if she had problems with her eyes. She said she had lost her glasses.
Howe administered the Horizontal Gaze Nystagmus test, which Foote passed, and the
convergence test, which she failed. These test results are consistent with marijuana use.
Howe had no formal training or authorization to use the tests, but the evidence is
undisputed that he administered them correctly. Howe asked Foote to open her mouth
and noted her tongue appeared to have a greenish tint, which is considered a further sign
of marijuana use. According to Foote's expert, however, a brownish tint to the tongue is a
sign of marijuana use and green debris in the mouth is another sign, but a greenish tint is
not a sign of marijuana use.
Howe told Foote he believed she was under the influence of marijuana and he
called Spiegel, a drug recognition expert. Spiegel arrived approximately fifteen minutes
later and Howe told him Foote had been driving her vehicle too slowly in the left lane,
and that she displayed slow speech and slow responses, and a slow and lethargic
demeanor and driving pattern. Howe related to Spiegel the results of the eye convergence
test, that there was an absence of alcohol odor, and that he suspected Foote had been
driving while under the influence of marijuana. Spiegel, who had been trained to
administer the eye tests, repeated the tests with the same results. He also observed the
greenish tint on Foote's tongue. He administered standard field sobriety tests and
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concluded Foote failed them. The tape shows Foote had obvious difficulty keeping her
balance during the tests. However, Foote submitted an affidavit from a former police
officer stating she had viewed the tape and in her opinion Foote had passed the field
sobriety tests. Spiegel concluded Foote was under the influence of marijuana and arrested
her. Officers searched her vehicle and Latteier, but they found no drugs.
Foote was taken to the Davis County Jail, where she was booked for driving while
under the influence. She tested negative for alcohol on the breathalyzer. Her heart rate
and blood pressure were normal, which is inconsistent with marijuana use although it
does not rule it out. Her pupils were slightly dilated, which is consistent with marijuana
use. A thorough pat-down search through Foote's light summer clothing (tee shirt and
shorts) disclosed no drugs. A jail intake officer observed the greenish tint of Foote's
tongue but thought it was from green candy. Foote had told the officers she had an ear
infection, which can affect balance, and that she was taking a prescription inhalant for
bronchitis, although she did not know what it was and did not have it with her. Although
Foote was later diagnosed as having a neurological problem, possibly mild cerebral palsy,
that causes her slow speech and balance problems, there is no evidence she told the
officers that she had a condition that affected her speech and balance.
Spiegel suspected Foote was carrying drugs on her person and requested that a
female jail intake officer conduct a strip search. From her observations, the jail officer
believed Foote was under the influence of drugs. The jail officer testified she could have
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refused to conduct the search and probably would not have conducted a strip search if
Spiegel had not requested it. Although the Davis County Jail's policy of conducting strip
searches of all persons arrested on drug charges had been held unconstitutional in Cottrell
v. Kaysville City, 994 F.2d 730, 734 (10th Cir. 1993), decided almost a year before
Foote's arrest, the jail officer testified all persons arrested on drug charges are subjected
to strip searches. The strip search revealed no drugs, and a urine test ordered by Spiegel
showed no indication of drugs. The record establishes that Foote was never placed in the
general jail population and was released on bond shortly after her confinement. The
charges against Foote were dropped after the negative drug test results were received.
II.
Foote brought this § 1983 action against Howe, Spiegel, another officer who
assisted in the search of her vehicle, and the officers' supervisor. She alleged the initial
stop, the continued detention by the roadside, the arrest, the search of her vehicle, and the
strip search all violated her constitutional rights. The search of Foote's vehicle, the
actions of the officer who assisted in the search of the vehicle, and the actions of the
supervisor are not at issue in this appeal.
Foote moved for summary judgment against Howe for the initial stop and the
roadside detention. She contended the suspected registration violation was a pretext for
searching a vehicle in which a long-haired man with tattoos was a passenger. She also
argued any justification for the initial stop was completely dispelled when Howe saw the
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temporary registration was not altered, at which time he no longer had a reason to detain
her. Defendants argued there was no constitutional violation and that Howe was entitled
to qualified immunity. The district court denied Foote's motion for summary judgment,
ruling whether Howe could see the writing on the registration permit from his perspective
and whether the suspected registration violation was a pretext for the stop were questions
of fact precluding summary judgment.
Foote filed a second motion for summary judgment, arguing the strip search was
unconstitutional. Defendants argued Spiegel had probable cause for the arrest and
reasonable suspicion for the strip search, and that he was entitled to qualified immunity
because he did not violate clearly established law. Defendants also moved for summary
judgment, arguing the initial stop, the continued detention, the arrest, and the strip search
were constitutional, and that defendants were entitled to qualified immunity because they
did not violate clearly established law.
The district court ruled that Tenth Circuit law on pretextual stops was clearly
established on the date of the incident, but that whether the initial stop had violated
established law depended on questions of fact not resolved by the record, in particular
whether the suspicious registration was visible from Howe's patrol car. The court also
ruled Howe's continued detention of Foote violated clearly established law limiting the
scope of detention for a traffic violation and entered summary judgment in favor of Foote
on this issue. The court concluded Howe was required to use the least intrusive means
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available to check his suspicion of an altered registration and that he failed to do so when
he went first to the passenger side of Foote's vehicle and asked for Foote's driver's license
and the passenger's identification, instead of immediately checking the registration
permit. The court concluded that once Howe saw the registration had not been altered, he
could not continue to detain Foote because there was little or no evidence of impaired
driving and any indications of impairment were minimal, and, in any case, Howe failed to
use the least intrusive means of checking his suspicions regarding the registration. The
court concluded Spiegel had probable cause to arrest Foote and was therefore entitled to
qualified immunity regarding the arrest. However, the court concluded the strip search
violated clearly established law and entered summary judgment in favor of Foote on that
issue. The court also granted summary judgment to defendants on Foote's claims against
the two other officers and the claims based on the search of her vehicle. The court did not
enter final judgment under Fed. R. Civ. P. 54(b).
Citing Mitchell v. Forsyth, 472 U.S. 511 (1985), Howe and Spiegel appeal the
district court's ruling that they were not entitled to qualified immunity for the continued
roadside detention and strip search. Foote cross-appeals the district court's denial of
summary judgment on the legality of the initial stop and arrest. She asserts this court has
pendent appellate jurisdiction to review and decide her cross-appeal. This court ordered
the parties to brief the appealability of these rulings.
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III.
Jurisdiction
Defendants' Appeal of Denial of Qualified Immunity
Orders denying qualified immunity before trial are appealable to the extent they
resolve abstract issues of law. See Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996);
Johnson v. Jones, 115 S. Ct. 2151, 2156-57 (1995). A determination that the law
allegedly violated by the defendant was clearly established at the time of the challenged
actions is an abstract issue of law that is immediately appealable. A determination that
under either party's version of the facts the defendant violated clearly established law is
also immediately appealable. See Behrens, 116 S. Ct. at 842; Johnson, 115 S. Ct. at
2156-57; Mitchell, 472 U.S. at 528. However, government officials cannot appeal
pretrial denial of qualified immunity to the extent the district court's order decides nothing
more than whether the evidence could support a finding that particular conduct occurred.
See Behrens, 116 S. Ct. at 842. An order denying qualified immunity on summary
judgment is not appealable if it merely determines the facts asserted by the plaintiff are
sufficiently supported by evidence in the record to survive summary judgment. See
Johnson, 115 S. Ct. at 2156-57.
Defendants' notice of appeal identifies only the district court's denial of qualified
immunity on the continued roadside detention and the strip search as the parts of the order
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appealed. In their brief, they also argue the court erred in denying qualified immunity on
the initial stop. We have no jurisdiction to review the denial of qualified immunity on the
initial stop because it was not identified in the notice of appeal. See Cunico v. Pueblo
School Dist. No. 60, 917 F.2d 431, 444 (10th Cir. 1990).
The order of the district court denying qualified immunity for the strip search is
appealable. The court concluded even though Spiegel had a reasonable belief there was
probable cause to arrest Foote for driving while under the influence, the undisputed facts
known to Spiegel did not justify the strip search under clearly established law.
Defendants contend on appeal that those facts justified the strip search.
The denial of qualified immunity for the continued roadside detention is also
appealable in part. The district court first concluded that clearly established law required
Howe to use the least restrictive means available to verify his suspicion regarding the
registration permit, and that Howe failed to use the least restrictive means available when
he approached the passenger side of the vehicle and requested Foote's driver's license and
the passenger's identification before he checked the registration. Because the essential
facts (that Howe checked the registration permit after approaching the passenger side of
the vehicle and asking for identification) are undisputed, the denial of qualified immunity
resolved an abstract issue of law. This portion of the order is appealable under Behrens
and Johnson.
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The district court also concluded the record established that Howe lacked
reasonable suspicion to detain Foote for driving while under the influence. However, one
of the crucial facts underlying this issue was disputed. Howe had three reasons for
suspecting Foote was under the influence--her driving pattern, her bloodshot eyes, and her
slow speech. Although it was undisputed that Foote's eyes were bloodshot and her speech
pattern was markedly slow, the parties disputed whether the videotape showed any
improper driving by Foote, other than a brief crossing of the center line while trying to
pull her vehicle to the right after Howe signaled her to stop. Defendants assert the tape
shows Foote failed to keep up with traffic while traveling in the left lane, but Foote
asserts and the district court concluded that the tape showed she did keep up with traffic.
Under Behrens and Johnson, defendants cannot challenge at this time the district court's
determination that there was insufficient support in the record for the asserted fact that
Foote's vehicle was traveling too slowly in the left lane. This portion of defendants'
appeal from the denial of qualified immunity for the continued roadside detention is
dismissed for lack of jurisdiction.
Foote's Cross-Appeal
Foote argues her cross-appeal should be permitted under the doctrine of pendent
appellate jurisdiction on grounds of judicial economy and equity. However, Swint v.
Chambers County Com'n, 514 U.S. 35, 115 S. Ct. 1203 (1995), restricts the circumstances
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under which appellate courts can exercise pendent appellate jurisdiction, particularly
pendent party appellate jurisdiction. Concerns for judicial economy do not justify
permitting parties to parlay appealable collateral orders, such as denials of qualified
immunity, into "multi-issue interlocutory appeal tickets." Id. at 1211. Pendent appellate
jurisdiction can be proper only when the otherwise nonappealable decision is
"inextricably intertwined" with the appealable decision, or where review of the
nonappealable decision is necessary to ensure meaningful review of the appealable
decision. Id. at 1212. A pendent appellate claim is inextricably intertwined with a
properly appealable claim only if the pendent claim is coterminous with or subsumed in
the properly appealable claim--that is, when resolution of the properly appealable claim
necessarily resolves the pendent claim. Moore v. City of Wynnewood, 57 F.3d 924, 930
(10th Cir. 1995).
Here, resolution of the properly appealable issues--the appealable portion of the
denial of qualified immunity for the continued roadside detention and the denial of
qualified immunity for the strip search--will not necessarily resolve Foote's claims that the
district court erred in denying summary judgment in her favor on the legality of the initial
stop and arrest. A determination of whether Spiegel was entitled to qualified immunity
for claims arising out of the strip search would not necessarily determine whether Spiegel
had sufficient reason to arrest Foote or whether Howe had sufficient reason to stop her.
The strip search and arrest issues overlap to some extent because the reasons for the arrest
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may provide some support for a belief that Foote possessed drugs. However, Spiegel's
qualified immunity for the strip search turns on whether Foote was placed in the general
jail population and whether there was reasonable suspicion she was hiding drugs on her
person, see Cottrell, 994 F.2d at 734, while the legality of the stop and arrest turn on
whether there was reasonable suspicion of a registration violation and probable cause to
believe Foote was driving while under the influence of drugs. Probable cause to believe a
person was driving while under the influence of drugs does not establish reasonable
suspicion that such person has drugs that can only be found by a strip search. Id.
Resolution of the appealable continued roadside detention issue would not
necessarily determine the legality of the initial stop and arrest. A determination of
whether Howe was entitled to qualified immunity for detaining Foote could not determine
the legality of an initial stop for a suspected registration or traffic violation. Nor would
determination of whether Howe was entitled to qualified immunity for detaining Foote
determine Spiegel's liability for the arrest. Individual liability under § 1983 must be
based on personal involvement in the alleged constitutional violation. Grimsley v.
MacKay, 93 F.3d 676, 679 (10th Cir. 1996). Spiegel was not personally involved in
Howe's decision to detain Foote. It was uncontroverted that when Spiegel arrived, Howe
related to Spiegel that he had detained Foote because she drove erratically and had
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bloodshot eyes and slow speech, and because of the results of the two eye tests.1 Officers
may rely on information furnished by other law enforcement officials to establish
reasonable suspicion and probable cause for an arrest. Albright v. Rodriguez, 51 F.3d
1531, 1536 (10th Cir. 1995). There is no evidence in the record that Spiegel had any
reason to doubt Howe's statements. Consequently, even if we conclude Howe is not
entitled to qualified immunity for detaining Foote, Spiegel could rely on Howe's
statements in deciding to conduct field sobriety tests and arrest Foote. See Romero v.
Fay, 45 F.3d 1472, 1476 (10th Cir. 1995) (officer may base probable cause on
information received from others absent showing information was untrustworthy).
Nor is resolution of Foote's nonappealable claims essential for effective review of
defendants' appealable claims. It is true that Howe's immunity for the detention is
contingent on immunity for the initial stop and Spiegel's immunity for the strip search is
contingent on immunity for the arrest. Howe could not be immune for the detention if the
initial stop was clearly unlawful and Spiegel could not be immune for the strip search if
the arrest was clearly unlawful. However, the facts and issues are not so intertwined that
effective review of the detention apart from the stop, and the strip search apart from the
arrest is impossible. We can address the appealable issues without reviewing the initial
1
Foote argued Spiegel's brief conversation with Howe was an insufficient
interview under the standards for a drug recognition expert, but did not dispute that Howe
told Spiegel what he had observed.
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stop. We therefore conclude the issues raised by Foote are not appealable and dismiss her
cross-appeal for lack of jurisdiction.
Qualified Immunity for Continued Roadside Detention
Defendants contend the district court erred in denying qualified immunity for the
continued roadside detention for suspicion of driving while under the influence of drugs.
As discussed, although we lack jurisdiction to review the court's ruling that Howe lacked
reasonable suspicion to detain Foote for driving while under the influence, we can review
the court's ruling that Howe's initial approach to the passenger side of Foote's vehicle
rendered the detention unlawful. We agree with defendants that the district court erred in
denying qualified immunity and in entering summary judgment in favor of Foote on this
issue.
We review the district court's resolution of qualified immunity issues on summary
judgment de novo. See Moore, 57 F.3d at 931. When a § 1983 defendant raises the
defense of qualified immunity on summary judgment, the plaintiff must show the law was
clearly established when the alleged violation occurred and must come forward with
sufficient facts to show the official violated that clearly established law. The defendant
bears the normal summary judgment burden of showing no material facts that would
defeat the qualified immunity defense remain in dispute. For the law to be clearly
established, there must be a Supreme Court or Tenth Circuit decision on point, or the
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clearly established weight of authority from other courts must be as plaintiff maintains.
V-1 Oil Co. v. Means, 94 F.3d 1420, 1423 (10th Cir. 1996).
The contours of the right must be sufficiently clear that a reasonable officer
would understand that what he is doing violates that right. This is not to say that
an official action is protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say that in the light of
preexisting law the unlawfulness must be apparent.
Id. at 1423.
Here, the district court concluded Howe's continued detention of Foote violated
clearly established law governing the scope of a detention for a traffic violation. The
court found Howe was required to use the least intrusive means available to verify his
suspicion that the registration permit was altered, and that he failed to do so when he first
went to the passenger side of the vehicle and asked for a driver's license and identification
instead of immediately checking the registration.
Howe was not required to use the least intrusive means available to verify his
suspicions. See United States v. Sharpe, 470 U.S. 675, 686 (1985); V-1, 94 F.3d at 1427.
Safety concerns justify means that are only minimally intrusive and that are not
unreasonable in light of the purpose and circumstances of the stop. See id. at 1427-28.
See also Florida v. Royer, 460 U.S. 491, 504 (1983) ("there are undoubtedly reasons of
safety and security that would justify" more intrusive means of detaining a suspect).
Howe's approach to the passenger side of Foote's vehicle to request a driver's
license and identification before checking the registration permit was not unreasonable. It
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was only minimally more intrusive than the stop itself and was justified by Howe's
concern for his own safety. Howe's affidavit and deposition testimony that he approached
the passenger side of the vehicle before checking the registration permit for his own
safety is undisputed by any evidence in the record. Howe was alone and knew nothing
about the people in the vehicle. Safety concerns made it reasonable to first approach the
passenger side of the vehicle away from traffic to quickly check the occupants' identities
and determine if any weapons were in plain view.
We conclude the detention was not rendered clearly unlawful by Howe's failure to
check the registration permit before approaching the passenger side of Foote's vehicle.
However, because we lack jurisdiction to review the legality of the initial stop, we cannot
resolve whether the initial stop rendered the resulting detention clearly unlawful. That
depends on the outcome in district court.
Qualified Immunity for Strip Search
Spiegel was not entitled to qualified immunity for the strip search. It is not clearly
unconstitutional to strip search persons arrested for possession of drugs but not placed in
the general inmate population, at least if there is reasonable suspicion they have
additional drugs or weapons on their persons. Warner v. Grand County, 57 F.3d 962, 964
(10th Cir. 1995). See Applewhite v. United States Air Force, 995 F.2d 997, 1000-01
(10th Cir. 1993), cert. denied 510 U.S. 1190 (1994). However, it was clearly established
in May 1994 that a strip search of a person arrested for driving while under the influence
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of drugs but not placed in the general jail population is not justified in the absence of
reasonable suspicion that the arrestee has drugs or weapons hidden on his or her person.
See Cottrell, 994 F.2d at 734. The mere fact that Foote was arrested for driving while
under the influence of drugs does not justify the strip search. In Cottrell, this court
expressly rejected the proposition that it is reasonable to strip search every inmate booked
on a drug related charge, such as driving while under the influence of alcohol or drugs.
It is undisputed that Foote was not placed in the general inmate population. Nor
does the record show there was any reason to suspect Foote had drugs hidden on her
person. Even if there was probable cause to believe Foote was under the influence of
marijuana, there was no particularized reason to believe she was hiding marijuana on her
person. Cottrell rejected the proposition that it is reasonable to assume a person arrested
for driving while under the influence of drugs has drugs concealed on his or her body
simply because none were found in the vehicle or in a thorough pat-down search. 994
F.2d at 734. The record establishes a thorough pat-down search through Foote's light
summer clothing did not reveal anything. Almost anything the strip search could have
revealed would already have been discovered in the pat-down search. Moreover, Foote
was under uninterrupted police supervision from the time Howe turned on his video
camera on the highway. There is nothing in the record suggesting any kind of furtive
movement consistent with hiding something beneath her clothing. There was no
reasonable suspicion that Foote was hiding marijuana on her person. See Cottrell, 994
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F.2d at 734-35. Cf. Warner, 57 F.3d 962 (possession of marijuana and marijuana pipe
provided reasonable suspicion for strip search); Applewhite, 995 F.2d 997 (possession of
amphetamines and partially filled syringe during attempted drug purchase provided
reasonable suspicion for strip search).
The record cannot support a conclusion that a reasonable officer could have
believed there was reasonable suspicion that Foote was hiding drugs on her person. The
belief that Foote had drugs hidden in a body cavity because she was suspected of driving
while under the influence of drugs, when no drugs had been found in her vehicle, on her
passenger, or in a pat-down search, was unreasonable. Foote was not suspected of trying
to smuggle contraband into a prison or smuggle cocaine or heroin through customs; she
was suspected of driving while under the influence of marijuana. Cf. Bell v. Wolfish, 441
U.S. 520 (1979); Romo v. Champion, 46 F.3d 1013 (10th Cir.), cert. denied 116 S. Ct.
387 (1995). It may be reasonable to believe a person driving while under the influence of
marijuana could have marijuana in a pocket, a bag, or other container, or somewhere in
the vehicle. However, because Foote had no opportunity to hide anything beneath her
clothing after Howe had stopped her vehicle and a thorough pat-down search at the jail
had revealed no drugs, the strip search could be justified only if it were reasonable to
believe persons driving while under the influence of marijuana, who have no particular
reason to expect they will be searched, routinely carry a personal stash in a body cavity.
That belief is unreasonable.
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IV.
We dismiss for lack of jurisdiction Foote's cross-appeal and defendants' appeal of
the district court's ruling that Howe lacked reasonable suspicion that Foote was driving
while under the influence. We reverse the court's ruling that Howe's initial approach to
Foote's vehicle rendered the detention unlawful (although a finding may be made upon
remand that the initial stop was unlawful and therefore tainted the detention), affirm the
denial of qualified immunity for the strip search, and remand for further proceedings.
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