Wilder v. Turner

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 12, 2007
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

JOHN S. WILDER,

Plaintiff-Appellee,

v. No. 06-1092

KEVIN P. TURNER,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(02-CV-732-WYD-CBS)

John W. Suthers, Attorney General; Daniel D. Domenico, Solicitor General; Frederick
Haines, First Assistant Attorney General; Patricia D. Herron, Assistant Attorney General;
Kathleen Spalding, Assistant Attorney General; Denver, Colorado, for Defendant-
Appellant.

Paul Grant, Centennial, Colorado, for Plaintiff-Appellee.

Before KELLY, BALDOCK, and GORSUCH, Circuit Judges.*

BALDOCK, Circuit Judge.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
 This civil rights action arises out of a traffic stop and arrest of Plaintiff for allegedly

driving under the influence of alcohol (DUI). We are asked to decide whether an officer has

probable cause to arrest a driver that refuses to submit to a roadside sobriety test after the

officer observes certain indicia of alcohol consumption. The district court said no and denied

the officer qualified immunity. A jury subsequently returned a verdict against the officer.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We hold the officer had probable cause

to arrest the driver on suspicion of DUI, and is, therefore, entitled to qualified immunity.

I.

The relevant historical facts are undisputed. On the evening of November 30, 2001,

Defendant Kevin Turner, a Colorado highway patrolman, stopped Plaintiff John Wilder’s

vehicle for traveling 57 mph in a 50 mph zone. Officer Turner approached the vehicle, asked

Wilder for his documentation, and explained the reason for the stop. In the course of the

initial encounter, Officer Turner noticed an odor of alcohol on Wilder’s breath and observed

Wilder had pinkish and watery eyes, a flushed face, and spoke unusually slow and

deliberately. Officer Turner asked Wilder how much alcohol he had to drink. Wilder

candidly admitted he had a glass of wine ten to fifteen minutes earlier. The officer asked

Wilder if he had anything else to drink. Wilder responded he did not. Initially, Wilder’s

demeanor was argumentative, but eventually became cooperative.1

1
While not denying he was speeding, Wilder attempted to justified his conduct by
claiming he was forced to pass a vehicle that, in his opinion, was traveling unreasonably
slow, but suddenly sped up when Plaintiff was in the process of passing it.

2
 Officer Turner asked Wilder to exit the vehicle and walk to the rear. The officer

noticed Wilder’s exit was normal, and that Wilder did not have difficulty walking. The

officer also noticed Plaintiff’s clothing was orderly. The officer asked Wilder if he would

perform a roadside sobriety test. Wilder declined and asked the officer: “What have I done

to deserve this.” The officer explained he observed certain indicia of alcohol consumption

and needed to investigate further. Officer Turner asked Wilder a second time if he was

willing to perform a roadside sobriety test. Wilder replied: “I really don’t want to.” The

officer then arrested Wilder on suspicion of DUI.2 At that point, Wilder told the officer he

had a weapon in his vehicle for which he had a permit. While searching the vehicle, the

officer found a half-empty, single-serving bottle of wine on the front passenger seat, which

Wilder covered with newspapers before the stop.

After Officer Turner advised Wilder of his rights, Wilder asked to be given a blood

alcohol test.3 Officer Turner drove Wilder to a nearby medical center where he received a

blood test. The officer charged Wilder with DUI in violation of Colo. Rev. Stat. § 42-4-

2
After the arrest, Plaintiff apparently changed his mind and agreed to take a
roadside sobriety test, but the officer informed Plaintiff he was under arrest.
3
Colo. Rev. Stat. § 42-4-1301.1(2)(a)(1), provides:

Any person who drives any motor vehicle upon the streets and highways
and elsewhere throughout this state shall be required to take and complete,
and to cooperate in the taking and completing of, any test or tests of such
person’s breath or blood for the purpose of determining the alcoholic
content of the person’s blood or breath when so requested and directed by a
law enforcement officer having probable cause to believe that the person
was driving a motor vehicle in violation of the prohibitions against DUI[.]

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1301(1)(a), as well as unlawful possession of a weapon while intoxicated in violation of

Colo. Rev. Stat. § 18-12-106(1)(d). The officer released Wilder after Wilder posted a

personal recognizance bond. The blood test, which the officer received a few days later,

revealed Wilder’s alcohol-blood content was .014%, well below the level at which

intoxication is presumed under Colorado law. As a result, the Rio Grande County Court

dismissed all charges against Plaintiff.

Wilder thereafter brought this 42 U.S.C. § 1983 action against Officer Turner alleging

the officer violated his Fourth Amendment right to be free from unreasonable searches and

seizures when the officer (1) arrested him without probable cause, (2) seized his gun without

probable cause, and (3) presented charges to the district attorney without probable cause.

Officer Turner moved for summary judgment asserting a defense of qualified immunity. The

officer argued he had probable cause to arrest Plaintiff because he observed several indicia

of excessive alcohol consumption, and because Plaintiff refused to submit to the roadside

sobriety test. The district court denied the officer’s motion.

The court relied extensively on the Colorado Supreme Court’s decision in People v.

Carlson, 677 P.2d 310 (Colo. 1984), to conclude “a reasonable peace officer in [Officer]

Turner’s position would not believe he had probable cause under Colorado law to arrest

Plaintiff for DUI.” (emphasis added). Carlson held a roadside sobriety test constitutes a full

search and, therefore, before an officer can lawfully ask an individual to submit to a roadside

sobriety test, the officer must have probable cause to believe the driver is under the influence

of alcohol. See Carlson, 677 P.2d at 317-318. The district court explained the indicators of

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alcohol consumption Officer Turner observed did not, as a matter of Colorado law, create

probable cause to arrest. Under Carlson, the court explained, the indicators Officer Turner

observed were not enough to establish probable cause, but rather only reasonable suspicion.

The court further explained that refusing to take a field sobriety test cannot create probable

cause to arrest because under Carlson, an officer may lawfully ask an individual to perform

a field sobriety test only if the officer has probable cause to believe the suspect is intoxicated.

Following a two-day trial, a jury returned a verdict in Officer Turner’s favor. Wilder

timely moved for a new trial pursuant to Fed. R. Civ. P. 59(a) arguing Officer Turner’s

counsel engaged in persistent misconduct that affected and prejudiced the jury. The court

agreed and granted a new trial. The court cursorily explained that “numerous deviations of

defense counsel from acceptable norms are so flagrant that I am left with the abiding sense

that the Plaintiff did not receive a fair trial.” Prior to the second trial, Officer Turner renewed

his motion for summary judgment again asserting a defense of qualified immunity. The

court, however, denied the motion as untimely. The case proceeded to trial.

At the close of Plaintiff’s case and again at the close of all the evidence, Officer

Turner moved for a judgment as a matter of law under Fed. R. Civ. P. 50. The officer again

argued that during the stop he observed several indicators of excessive alcohol consumption,

and that his observations coupled with Plaintiff’s refusal to take a field sobriety test amply

supported a finding of probable cause to arrest Wilder for DUI. The court denied the motion.

The court explained the evidence on the record, such as Wilder’s ability to exit the vehicle

and walk normally, his cooperative attitude, and his orderly clothes, could support a finding

5
the officer lacked probable cause to arrest Wilder for DUI.

This time, the jury returned a verdict for Wilder and awarded him $1 million dollars

in damages. Officer Turner again moved for a judgment as a matter of law or in the

alternative for relief from judgment or for a new trial pursuant to Fed. R. Civ. P. 50(b) and

59. Once more the officer asserted a defense of qualified immunity arguing he had probable

cause to arrest Wilder based on his observations and Plaintiff’s refusal to cooperate with the

investigation. The court denied the officer’s post-trial motions reasoning the jury could

reasonably infer a lack of probable cause from the evidence and that the officer arrested

Plaintiff for an unlawful reason, i.e., refusing to take a roadside sobriety test. This appeal

followed.

II.

Whether Officer Turner is entitled to qualified immunity is a legal question we review

de novo. See Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (en banc). When

an officer asserts a defense of qualified immunity, the plaintiff bears a heavy two-part

burden. See id. at 1114. Initially, the plaintiff must show the officer’s conduct violated a

constitutional right: “A court required to rule upon the qualified immunity issue must

consider, then, this threshold question: Taken in the light most favorable to the party

asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional

right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). If the officer’s conduct did not violate

a constitutional right, the inquiry ends and the officer is entitled to qualified immunity.

See id.

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 Throughout the course of this litigation, Plaintiff’s position has been that Officer

Turner’s actions violated his Fourth Amendment right to be free from unreasonable seizures

because the officer’s observations and Plaintiff’s refusal to take a field sobriety test were

insufficient to establish probable cause to arrest him on suspicion of DUI. Agreeing with

Plaintiff, the district court denied Officer Turner’s qualified immunity defense at each stage

of the litigation. Deriving the legal framework for its probable cause determination

exclusively from Colorado case law, the court concluded (1) the officer’s observations were

insufficient to establish probable cause to arrest for allegedly driving while under the

influence, and (2) because probable cause must exist before an officer may lawfully ask an

individual to participate in a field sobriety test, refusing to take the test cannot itself establish

probable cause to arrest.

A.

When a warrantless arrest is the subject of a § 1983 action, the defendant is entitled

to qualified immunity if probable cause existed to arrest the plaintiff. See e.g., Atwater v.

Lago Vista, 532 U.S. 318, 322 (2001) (“[i]f an officer has probable cause to believe that an

individual has committed even a very minor criminal offense in his presence, he may,

without violating the Fourth Amendment, arrest the offender.”). Probable cause to arrest

exists if, the facts and circumstances within the officer’s knowledge are sufficient to justify

a prudent officer in believing the defendant committed or is committing an offense. See

United States v. Stephenson, 452 F.3d 1173, 1178 (10th Cir. 2006). Probable cause only

requires a probability of criminal activity, not a prima facie showing of such activity. See

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Illinois v. Gates, 462 U.S. 213, 243 n. 13 (1983); see also United States v. Jurado-Vallejo,

380 F.3d 1235, 1239 (10th Cir. 2004) (Because the law only demands a “fair probability,”

we do not require “greater proof–certainly not conclusive proof of any particular factor

establishing probable cause.”). We determine probable cause from the totality of the

circumstances taking into account both inculpatory as well as exculpatory evidence. See

Stephenson, 452 F.3d at 1178.

Of course a “violation of state law cannot give rise to a claim under Section 1983.”

Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157, 1164 (10th Cir. 2003). “Section

1983 does not . . . provide a basis for redressing violations of state law, but only for those

violations of federal law done under color of state law.” Jones v. City and County of Denver,

854 F.2d 1206, 1209 (10th Cir. 1988). “While it is true that state law with respect to arrest

is looked to for guidance as to the validity of the arrest since the officers are subject to those

local standards, it does not follow that state law governs.” Wells v. Ward, 470 F.2d 1185,

1187 (10th Cir. 1972). Nor, perhaps more importantly, are we bound by a state court’s

interpretation of federal law–in this case the Fourth Amendment. “It is beyond cavil that we

are not bound by a state court interpretation of federal law” regardless of our jurisdictional

basis. Grantham v. Avondale Indus., Inc., 964 F.2d 471, 473 (5th Cir. 1992) (citing cases);

accord RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 n.1 (7th Cir. 1997). The right

Plaintiff claims Officer Turner violated in this case arises under federal law. And the

officer’s claim to qualified immunity is a federal defense. Understandably, then, the standard

governing the officer’s defense must be federal law. See id. Applying the correct standard

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to review Officer Turner’s qualified immunity defense, we conclude the Tenth Circuit

precedent of Summers v. Utah, 927 F.2d 1165 (10th Cir. 1991) controls.

B.

In Summers, the driver of a vehicle challenged the illegality of his arrest under § 1983

after his DUI charge was dismissed. We summarily rejected the driver’s challenge holding

probable cause for an arrest arose when the officer detected the scent of alcohol on the driver

who subsequently refused to perform a field sobriety test:

With respect to the legality of plaintiff’s arrest, the magistrate concluded that
the surrounding circumstances provided [the officer] with the requisite
probable cause. The undisputed facts regarding plaintiff’s operation of his
vehicle, the officer’s scent of alcohol emanating from the vehicle and
plaintiff’s refusal to take a field sobriety test substantiate the magistrate’s
conclusion. We agree that plaintiff, who only notes in this regard that his DUI
charge was later dismissed, has failed to demonstrate that his arrest by [the
officer] was improper. Since probable cause for a warrantless arrest is
determined in terms of the circumstances confronting the arresting officer at
the time of the seizure, the validity of such an arrest is not undermined by
subsequent events in the suspect’s criminal prosecution such as dismissal of
charges.

Id. at 1166 (emphasis added) (internal citations omitted).

Recently, in Miller v. Harget, 458 F.3d 1251 (11th Cir. 2006), the Eleventh Circuit

relied on Summers to reach a like conclusion. In Miller, the court held that an officer had

probable cause to arrest an individual on suspicion of DUI where (1) the officer witnessed

the individual driving a vehicle, (2) the officer smelled alcohol emanating from the vehicle’s

interior, and (3) the individual refused to take a breathalyzer test. Citing Summers with

approval, the Court explained:

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 Whether or not [the officer] had probable cause to arrest Mr. Miller because
the officer smelled alcohol coming from the vehicle, the officer did have
reasonable suspicion. He reasonably detained Mr. Miller in order to
investigate whether he had been driving under the influence. From this
detention, probable cause developed, justifying Mr. Miller’s arrest, because
Mr. Miller refused to take a breathalyzer test.

Id. at 1259-60 (emphasis added) (internal citations omitted).

In this case, Officer Turner observed several indicia of Plaintiff’s alcohol consumption

including a moderate odor of alcohol, pinkish and watery eyes, a flushed face, unusually

slow and deliberate speech, and slow hand movements. Under the totality of the

circumstances, the officer’s observations amply support a conclusion that the officer had an

objectively reasonable and articulable suspicion of criminal activity to justify detaining

Plaintiff for further investigation. See id. at 1259; see also United States v. Neumann, 183

F.3d 753, 756 (8th Cir.1999) (holding detection of alcohol on a driver’s breath during a

routine traffic stop gave rise to reasonable suspicion). From this detention, probable cause

developed when twice Plaintiff refused to participate in a field sobriety test. See Summers,

927 F.2d at 1166; see also Miller, 458 F.3d 1259.

A prudent officer could reasonably conclude from Plaintiff’s refusal to participate in

a field sobriety test coupled with the observation of several indicators of excessive alcohol

consumption that Plaintiff was under the influence of alcohol. See Miller, at 1260. A field

sobriety test is a minor intrusion on a driver only requiring a reasonable suspicion of

intoxication and “an easy opportunity to end a detention before it matures into an arrest.”

Id.; see also Rogala v. District of Columbia, 161 F.3d 44, 52 (D.C. Cir. 1998) (holding that

10
only reasonable suspicion is required to conduct a field sobriety test because it is such a

minimal intrusion on the driver). A reasonable officer in Officer Turner’s position could

view Plaintiff’s refusal to submit to a field sobriety test as indicative of an intent to conceal

evidence of guilt. As Miller correctly notes:

Any other conclusion would tie the hands of law enforcement in their efforts
to keep intoxicated drivers off the streets. If a driver refused to submit to a test
after an officer smelled alcohol, the officer would have no choice but to let
him or her go, absent other evidence the driver had been drinking.

Miller, 458 F.3d at 1260. A contrary conclusion would simply allow a driver to “escape

arrest simply by refusing to cooperate.” Id.

Because Plaintiff failed to carry his burden to show the officer violated his Fourth

Amendment rights, the judgment of the district court is reversed. This cause is remanded

with instructions to enter judgment in favor of Officer Turner on the basis of qualified

immunity.

REVERSED AND REMANDED.

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